LEGAL APPROVAL
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PROJECT NAME: Eckerd Drugstore
APPLICANTS AGENT: Donna West; Carnahan, Proctor & Cross, Inc.
APPLICANTS ADDRESS: 6101 W Atlantic Blvd, Margate, FL 33063'~:::,~-~~0~-'~'-~
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DATE OF CITY COMMISSION PUBLIC HEARING: October 19, 1999\ \\~! \-~~-~._.
lYPE OF RELIEF SOUGHT: Conditional Use \~\\l, OC\ 'lO -:-' ~
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LOCATION OF PROPERlY: Northwest comer of Boynton Beach Boulevard and:federal Hignway-
----...~
DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO.
THIS MATTER came before the City Commission of the City of Boynton Beach, Florida
appearing on the Consent Agenda on the date above. The City Commi~s!on hereby adopts the
findings and recommendation of the Planning and Development Board, which Board found as follows:
OR
X THIS MATTER came on to be heard before the City Commission of the City of Boynton
Beach, Florida on the date of hearing stated above. The City Commission having considered the
relief sought by the applicant and heard testimony from the applicant, members of city administrative
staff and the pUblic finds as follows:
1. Application for the relief sought was made by the Applicant in a manner consistent with
the requirements of the City'~ Land Development Regulations.
2. The Applicant
lHAS
HAS NOT
established by substantial competent evidence a basis for the relief requested.
3. The conditions for development requested by the Applicant, administrative staff, or
suggested by the public and supported by substantial competent evidence are as set
forth on Exhibit "C" with notation "Included".
4. The Applicant's application for relief is hereby
l GRANTED subject to the conditions referenced in paragraph 3 hereof.
DENIED
5. This Order shall take effect immediately upon issuance by the City Clerk.
6. All further development on the property shall be made in accordance with the terms
and conditions of this order.
7. Other
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DATED: tf2:u:. pU). /?f'P ~h~~"-<U"
City ClerK
J:\SHROA TAIP'-nnongISHAREOIWP\PROJECTS\ECKERO ORUGSTORE COUS\OevELOPMENT OROER.cOUS.doC
EXHIBIT "D"
Conditions of Approval
Project name: Eckerd Drugstore
File number: COUS 99-003
Reference' Conditional Use File # COUS 99-003
DEPARTMENTS INCLUDE REJECT
PUBLIC WORKS
Comments: None X
UTILITIES
'Comments:
1. Fire flow calculations will be required demonstrating the City Code X
requirement of 1500 g.p.m. as stated in LDR chap. 6, Art. IV, Sec. 16, or
the requirement imposed by insurance underwriters, whichever is greater.
(see Sec. 26-16(a)). Please submit these calculations with your Health
Department permit submittal.
2. A"pp'ropriate backflow preventers will be required on the domestic water X
service to the building, and the fire sprinkler line if there is one, in
accordance with Sec. 26-207.
3. Provide drainage calculations showing the amount of rainfall to be retained X
on-site. Please be advised that there will be a fee for improvements the
City is planning to make for off-site storm water treatment and conveyance,
as part of the Downtown Watershed Stormwater Improvement Project.
(Sec. 26-406)
FIRE
Comments:
4. Show Fire Department connection on plans. X
POLICE
Comments: None X
ENGINEERING DIVISION
Comments:
5. Drainage basin provided by City to be installed prior to issuance of C.O. X
6. Within the Boynton Beach Blvd. roadway, remove the westbound left turn X
lane into NE 4th St. and stripe a continuous left turn storage lane for
eastbound traffic from the F.E.C. railroad to U.S. 1. This will allow some
storage capability for left turns into the common driveway. This will
require F.D.O.T. approval and permitting.
7. Request F.D.O.T. to install a yellow, warning flasher in the concrete X
median for Boynton Beach Blvd. eastbound traffic to keep vehicles out of
Eckerd Drugstore
File No.: COUS 99-003
Page 2 of 7
DEP ARTMENTS INCLUDE REJECT
the F.E.C. crossing when there are stacking conditions. This will require
F.E.C. and F.D.O.T. approvals.
n _. .....
BUILDING DIVISION
Comments:
8. To verify compliance with the Florida Accessibility Code for Building X
Construction, add the following information to the ramp detail drawing
found on sheet 3 of 8: The documentation shall include, but not be limited
to, identifying the slope, surface finish and cross slope of the ramp. Amend
the drawings to omit inconsistencies. The landscape plan and irrigation
plan show two ramps and the site plan and drainage plan depict one ramp.
The floor plan drawing shows parking spaces but does not show a ramp or
identify the location of the accessible parking spaces.
9. The design professional-of-record for the project shall state on the plans X
that the finish floor elevation is above the highest 100-year base flood
elevation applicable to the building site. The statement shall indicate that
the base flood elevation is consistent with the surface water management
regulations defined by the South Florida Water Management District. The
statement "not determined" is not acceptable. Identify the finish floor
elevation within the footprint of the building that is illustrated on the
drawing titled Fixture Plan. [Section 3107.1.2, Chapter 31 of the Boynton
Beach Amendments to the 1997 edition of the Standard Building Code]
10. Please note that the layout of the floor area depicted on the fixture plan will X
be reviewed for compliance with the applicable codes at time of permit
revIew.
11. Remove the text "per side" from the description of the gazebo signage that X
is identified in the sign tabulations found on sheet A-2 of 2. [Article IV,
section 6. B of the Sign Code - Chapter 21 of the City's Land Development
Regulations] All drawings of signage shall comply with the applicable
regulations specified in the Sign Code.
12. The overall height of the gazebo sign structure exceeds the overall height X
allowed per the code. Amend the height to comply with the twenty-foot
(20') maximum allowed by the code. [Article IV, section 6. B of the Sign
Code - Chapter 21 of the City's Land Development Regulations] All
drawings of signage shall comply with the applicable regulations specified
in the Sign Code.
13. Identify on the landscape plan the location of the landscaping that is X
required for free standing signs/Gazebo structure. [Article III, section 3 of
the Sign Code - Chapter 21 of the City's Land Development Regulations]
14. Remove the text "facing streets" from the description of the wall signs that X
is identified in the sign tabulations found on sheet A-2 of 2. [Article IV,
Eckerd Drugstore
File No.: COUS 99-003
DEPARTMENTS
section 6. C of the Sign Code -Chapter 21 of the City's Land Development
Regulations] All drawings of signage shall comply with the applicable
regulations speciflecf'in the Sign Code.
Page 3 of7
INCLUDE REJECT
15. The total square foot area which is allowed for wall signage that is X
identified in the signage tabulations found on sheet A-2 of 2 correctly
identifies the maximum that is allowed by the Sign Code. However, the
aggregate area of the wall signage that is shown and identified on the
elevation view drawings of the building illustrated on sheet A-2 of 2
exceeds the total allowed. Correct the signage area so that it does not
exceed the maximum area allowed by the code. [Article IV, section 6. C of
the Sign Code - Chapter 21 of the City's Land Development Regulations]
All drawings of signage shall comply with the applicable regulations
specified in the Sign Code.
16. The total number of directional signs that are depicted on the site plan does X
not match the quantity that is identified in the sign tabulations listed on
sheet A-2 of 2. The three types of directional signs that are illustrated on
sheet A-I of 2 do not match the titles that are identified on the site plan.
Correct the inconsistencies. All drawings of signage shall comply with the
applicable regulations specified in the Sign Code.
17. At time of permit review, verify that the platted right-of-way that is shown X
on the survey has been abandoned by submitting a copy of the recorded
City of Boynton Beach resolution that describes the abandonment.
18. At time of permit review, specify, in tabular form, on the site plan and/or X
floor plan drawing the proposed use of the facility. Identify the Building
Code used to design the building. Also, include the type of construction,
occupancy classification that the building was designed to comply with.
The tabular form shall include the total area, area per floor and overall
height of the building. The City of Boynton Beach has adopted the 1997
edition of the Standard Building Code and the City' of Boynton Beach
Amendments to the Standard Building Code. Working drawings of the
building shall comply with the codes specified in Chapter 20 of the Land
Development Regulations.
19. Compliance with the Building Codes will be evaluated at time of permit X
review. The permit fee, water and sewer facility fees, Fire Department fees,
County fees and State fees will be determined at time of permit review.
20. Permits are required to construct the improvements that are shown on the X
approved site plan/conditional use documents. Permit application forms are
available in the Building Division of the Development Department. A
permit submittal checklist is available in the Building Division. The list
identifies the basic documents that the Plans Analyst checks for when an
applicant submits for permit review.
P ARKS AND RECREA nON
Eckerd Drugstore
File No.: COUS 99-003
Page 4 of7
DEPARTMENTS INCLUDE REJECT
Comments: None X
.+ -- --.
FORESTER/ENVIRONMENT ALIST
Comments: None X
PLANNING AND ZONING
Comments:
21. Per CBD regulations, Utilities shall be placed underground to the maximum X
extent possible.
22. On the site plan provide the following information: ChA, Sec.7, Par.B- X
Correct bearings and distances to match the survey.
Correct the handicapped sign detail as per City drawing #B-90012 - sign
should be 18' x 30".
23. On the landscape plans continue hedge west along south side southwest X
entrance, to a point closer to entrance up to a point to avoid interference
with clear sight area. Ch.7.5, Art.II, Sec. 5.
24. To further provide adequate screening for the loading area, maximize X
density of north with additional materials ranging between 4 feet and 8 feet
in height. Such as clusters of tree Philodendron.
25. It is recommended that site perimeter landscaping (east and south sides) be X
further enhanced with additional materials ranging between 4 feet and 8 feet
in height placed between the Royal Palms to fill the spatial void resulting
from the lack of canopy trees and to contribute to the proper screening of the
parking area. It is recommended that species be compatible with 20/20 plan
species and other species proposed, be primarily native and enhance the site
with added color and texture. Species could include Giant Crinum Lily,
Bird of Paradise, King Sago, Day Lilly, Tree Philodendron, or Ixora.
Colors at site comers and driveways should be maximimized.
26. Provide all lighting consistent with the CBD Guidelines (16 feet maximum), X
and vision 20/20 plan, with the exception of supplemental lighting necessary
to meet minimum required light levels per City code. If inconsistent
lighting is used, proper data and specifications shall be provided to justify
supplemental lighting and verify that lighting shall not be excessive. 20/20
light fixture is rounded or hook-shaped.
27. Increase design characteristics representative of the Florida Coastal style X
architecture such as:
a. Benches shall be consistent with Redevelopment Plan
recommendations;
b. Incorporate weather vanes or windsocks, and/or bannerslflags that both
accent the project and further the recommended nautical theme (elements
Eckerd Drugstore
File No.: COUS 99-003
Page 5 of7
DEPARTMENTS INCLUDE REJECT
should be lightly used, not extensively used on the project);
c. Place support signage over and under the main wall signs, hang under
"open" area, 6i- eliminate to remove them from the parapet which will
lessen the visual and distractions from the building's design features.
28. Pursuant to traffic and circulation data submitted, and County's traffic X
review, east and south driveways shall be limited to right-in and right-out
only.
29. Exterior vending machines shall be prohibited. X
30. Remove signage from gazebo to prevent structure from being construed as X
sign structure (structure exceeds maximum height allowed and requires
foundation planting), and to maximize its potential as a signature structure.
31. As an alternative to placing parking to the rear of the project, out of sight X
from the adjacent right-of-way, provide a covered structure such as a
pergola that provides significant screening to the parking area by both the
structure and vegetation to be planted and grown on same, possibly
designed to include a solid roof at the adjacent bus stop, and the pergola
should extend the length of the parking areas along both Boynton Beach
Boulevard and U.S.-I.
ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY COMMENTS
32. Revise comment #3 to read as follows: Provide drainage calculations X
showing the amount of rainfall to be retained on-site. Please be advised
that there will be a fee for improvements the City is planning to make for
off-site stormwater treatment and conveyance, as ",art of if the project is
within the Downtown Watershed Stormwater Improvement Project area.
(Sec. 26-406)
33. Revise comment #5 to read as follows: Drainage basin provided by City to X
be installed prior to issuance of C.O., or installed by the developer, and
reimbursed by the city, to avoid project delays,
34. Revise comment #6 to read as follows: Within the Boynton Beach Blvd. X
roadway, remove the westbound left turn lane into NE 4th St. and stripe a
continuous left turn storage lane for eastbound traffic generally from the
F.E.C. railroad to U.S. 1. This will allow some storage capability for left
turns into the eeFRRH3R project driveway. This will r8E1Hire is subject to
receiving F.D.O.T. approval and permitting
35. Revise comment #7 to read as follows: Request F.D.O.T. to install a X
yellow, warning flasher in the concrete median for Boynton Beach Blvd.
eastbound traffic to keep vehicles out of the F.E.C. crossing when there are
stacking conditions. This will reElHire is subject to receiving F.E.C. and
F.D.O.T. approvals.
Eckerd Drugstore
File No.: COUS 99-003
Page 6 of7
DEPARTMENTS INCLUDE REJECT
36. Omit comments #11 and #12 as sign will be removed from gazebo. X
37. Revise comment #24 to read as follows: To further provide adequate X
screening for the loading area, maximize density of north buffer with
ae!e!itieRal materials r-aRgiag betv;eea 4 feet aRe! g f-tlet iR HeigHt. SHeH as
clysters of tree PHileeeHereR. the hedge planted at five (5) feet and
Silver Buttonwood bushes rather than standards. Plantings shall be
maintained to maximize density and therefore screening. Five (5) foot
hedge shall follow pavement edge to the driveway.
38. Revise comment #25 to read: It is recommended that density of site X
perimeter landscaping (east and south sides) be further enhanced with
aaaitieRal materials raRgiRg setweeR 4 feet aRe! g feet iR HeigHt plaeea
sep-veeR tHe Reyal Palms te fill tHe spatial "Die resyltiRg frem tHe laek of
eaRepy kees aRa t8 e8RtriByte te tHe proper sereeRiRg tHe parkiHg area. It
is reeemmeRaea tHat sl"eeies se eampatiBle '::itH 29.'29 f:llaR sfleeies aRa
otHer sl"eeies f)rOI"9see, se primarlily Hath'e, aRe! eRHaReea tHe site 'l.'itH
addea eeler aRe! teKaJre. standard Silver Buttonwood (rather than
Hibiscus. Additional species eayla iRElhiae such as Giant Crinum Lily,
Bird of Paradise, King Sago, Day Lilly, Tree Philodendron, or Ixora
should be considered to add colors at site comers and driveways, ~
Be ma,ximizea. Hedge shall be maintained at a minimum of 30 inches
(except on the north side),
39. Revise comment #27 to omit item "C" to read as follows: Increase design X
characteristics representative of the Florida Coastal style architecture such
as: .
a. Benches shall be consistent with Redevelopment Plan
recommendations;
b. Incorporate weather vanes or windsocks, and/or banners/flags that both
accent the project and further the recommended nautical theme (elements
should be lightly used, not extensively used on the project);
e. Plase sy",,,,eIt sigRage e':er ana YRaer tHe maiR 'o'.'all sigRs, HaRg \:lRGer
"opeR" Mea, ar elimiRate t8 reme'le tHem frem tHe para",et wHieH '.vill
lesseR tHe ':isyal aRe eistrastieRs frem tHe BYileiRg's desigR feamres..
40. Pursuant to traffic and circulation data submitted, and County's traffic X
review, east and south driveways shall be limited to right-in and right-out
only (unless a turn-lane is provided on Boynton Beach Boulevard).
41. Revise comment #30 to read as follows: Remove signage from gazebo to X
",reveRt strnElBire frem Beiag eeRstrnee as SigR stroemre (stroemre eKeeees
maKiFRym HeigHt alll')',\'ee aRe reEiYlres faYReatiaH plaatiRg), aRe to
maximize its potential as a signature structure. Alternatively, two
monument signs at a maximum of six (6) feet high, will be allowed at
the northeast and southwest entrances consistent with sign code and if
applicable, the variance process.
Eckerd Drugstore
File No.: COOS 99-003
Page 7 of7
DEPARTMENTS INCLUDE REJECT
42. Replace comment #31 to read as follows: :\s aR alternative t8 plaeiRg X
parldRg te tAe rear -(:If tAe projeet, eyt ef sigAt frem tAe aajaeeRt rigAt of
'.vay, f'lrevide a sovered stmet1:lre SYeA as a f'lergola tAat flroviees sigRifisaRt
seFeeRiRg te tAe parkiRg area "'y !:letA tAe stryetare aRa vegetatieR te be
plaRtea aRa gre\YR eR same, f'lossi"'ly aesigRea te iRelyae a selia reef at tAe
aajaeeRt !:lYS stefl, aRa tAe flergela sAeyla e1(teRa tAe leRgtA ef tAe flarkiRg
areas aleRg "'etA QOYRteR QeasA Qeyle\'ara aRa U.S. 1. If feasible, place
two similar but smaller gazebos to provide cover for benches at both
the northeast and southwest project corners.
43. Prohibit the exterior storage of shopping carts, vending machines or X
any other items,
ADDITIONAL CITY COMMISSION COMMENTS
44. Revise comment #34 to read as follows: Within the Boynton Beach Blvd. X
roadway, remove the westbound left turn lane into NE 4th St. and stripe a
continuous left turn storage lane for eastbound traffic generally from the
F.E.C. railroad to U.S. 1. This will allow some storage capability for left
turns into the project driveway. This is subject to receiving F.D.O.T.
approval and permitting prior to issuance of certificate of occupancy.
45. Revise comment #35 to read as foIlows: Request F.D.O.T. to install a X
yellow, warning flasher in the concrete median for Boynton Beach Blvd.
eastbound traffic to keep vehicles out of the F .E.C. crossing when there are
stacking conditions. This is subject to receiving F.E.C. and F.D.O.T.
approvals prior to issuance of certificate of occupancy.
46. Revise comment #41 to read as follows: Remove signage from gazebo to X
maximize its potential as a signature structure. Alternatively, two
monument signs at a maximum of six (6) feet high, will be allowed at the
northeast and southwest entrances consistent with sign code and if
applicable, the variance process. Ifvariance request is denied, sign shall
be allowed on gazebo as originally proposed (gazebo lighting shall be
limited to that which internally illuminates the structure but does not
directly light the sign),
JlSHRDA T AIPLANNINGlSHAREDIWP\PROJECTSIECKERD DRUGSTORE COUSlCONDITIONS OF APPROVAL CC lo-I9-99.DOC
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RESOLUTION ROO- /..1
A RESOLUTION OF THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA,
APPROVING THE CONVEYANCE OF A 12'
WIDE UTILITY EASEMENT FROM THE CITY OF
BOYNTON BEACH TO FLORIDA POWER AND
LIGHT COMPANY (LOTS 5 & 6, BLOCK 6,
ROBERT ADDITION TO TOWN OF BOYNTON);
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Boynton Beach is the owner of certain lands
situated in Palm Beach County, Florida, and Florida Power and Light
Company has requested an easement on the east boundary of the City's
Animal Shelter on NE 4th Street, (Lots 5 & 6, Block 6, Robert Addition to
Town of Boynton); and
WHEREAS, it is the purpose of ,-..tRis--:-easem~nt to construct
Underg::: ~::::;:::i.::OI: :::~:~=;~h;I::~:~
OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City Commission of the City of Boynton Beach,
Florida does hereby approve the conveyance of an Easement from the City of
Boynton Beach to the Florida Power and Light Company, and authorizes the
Mayor and City Clerk to execute said Easement, a copy of which is attached
hereto as Exhibit "A" .
Section 2. This Resolution will become effective immediately upon
passage.
PASSED AND ADOPTED this /5 day of February, 2000.
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Mayor Pro Tern
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Ci Clerk
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MEETING MINUTES
REGULAR CITY COMMISSION
BOYNTON BEACH, FLORIDA
OCTOBER 19, 1999
department head or in another area of public administration, is essential
because of Boynton's need for a seasoned professional who can help bring
the city gOvernment's culture back into line with the council-manager
system. "
. "He or she must have a demonstrated history of job stability. Turnover
among city managers every five years or so is fairly normal, but the
Commission wants to make sure that the new manager has been persistent
and has succeeded in past jobs."
Mayor Broening said the Commission will be working on this over the next weeks and months.
XIII. OTHER:
None
XIV. ADJOURNMENT:
There being no further business to come before the Commission, Vice Mayor Tillman moved to
adjourn the meeting. Commissioner Denahan seconded the motion that carried unanimously.
The meeting properly adjourned at 8:30 p.m.
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v(ce Mayor
ATTEST:
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Mayor Pro Tem
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o puty City Clerk
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Commissioner
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Commissioner -
22
MEETING MINUTES ...."
REGULAR CITY COMMISSION
BOYNTON BEACH, FLORIDA
....,
~
'W'
OCTOBER 19, 1999
..
of Florida Atlantic University in his report dated October 18, 1999. (A copy of the report is
attached to the original set of these minutes on file in the City Clerk's Office.)
"The impasse reached in the search for a new City Manager centered on the
question of how much weight to give to different candidate characteristics.
Some Commission members gave great weight to formal, higher education and
to prior experience in the position of city manager. Others gave much more
weight to familiarity with Boynton Beach and to the candidates' ability to
communicate well with the city's African-American community. This differential
weighting, along with the very different characteristics of the top candidates in
the pool, left the Commission as a whole in the position of having to sacrifice one
set of qualifications for another, and this led to an impasse."
"My recommendation to the Commission was to raise the requirements for
applicants, and to extend the search in an effort to find candidates whose
~background and qualifications would be strong in all areas. The Commission
- considered all the options available to it and evaluated each option individually
with respect to a number of factors."
"The Commissioners agreed to extend the search to allow time to update and
expand the pool of applicants, and to allow extraordinary efforts to be made to
locate additional minority candidates. The Commission plans to hire a
recruitment consultant or "headhunter" who specializes in recruiting city
managers. The headhunter will be instructed to find the best candidates on the
market and to take special steps to advertise the position to women and
minorities. The Mayor and Commissioners understand that this will entail
additional costs for the search process, but they recognize that such costs are
small in comparison to the benefits that will be derived from bringing the search
to a successful completion."
"The Mayor and Commissioners also decided to be clearer about their
expectations regarding the applicants' qualifications for the job. They want the
new City Manager to meet the following requirements."
. "He or she must have at least a Master's Degree in Public Administration or
an equivalent degree in another field. Roughly 80 percent of Florida city
managers have an MPA, and this level of formal education is needed to
assure that the Manager will have technical skills essential for the job."
. "He or she must have experience with a council-manager form of municipal
government. Experience with this particular form of government is crucial
because it is the form in Boynton Beach, and Boynton's governance has
suffered from confusion about how this system should work."
. "He or she must have at least five years experience as a city manager, or
seven years experience as an assistant city manager. Again, experience with
city management at the highest level, rather than just experience as a
21
MEETING MINUTES
REGULAR CITY COMMISSION
BOYNTON BEACH, FLORIDA
OCTOBER 19, 1999
Motion
Vice Mayor Tillman moved to remove this item from the table. Commissioner Denahan
seconded the motion that carried unanimously.
At Commissioner Weiland's request, Mrs. Shepard approached the podium and stated she is
very pleased with the City's support of the restoration of the Woman's Club that included the
installation of an elevator and air conditioning. The Woman's Club would welcome working out
a plan with the City to use it for meetings that were discontinued at the Royal Palm Clubhouse
as was suggested in a Sun-Sentinel article. Ms. Shepard thanked the Commission for the
opportunity to continue the Woman's Club's history of being a place where meetings can be
held.
Commissioner Denahan thought this was a wonderful opportunity to showcase the Woman's
Club and she thanked Commissioner Weiland for the suggestion rather than just writing off this
money that is owed to the City. Commissioner Denahan is hopeful this can be a simple process
and that the City can keep this building filled. She does not want to offset any income that the
Woman's Club might be able to earn. She would like the City to have the opportunity to write
off this outstanding balance as quickly as possible in order to relieve the Woman's Club of the
debt.
Motion
Vice Mayor Tillman moved to authorize staff to work with the Woman's Club to schedule City
events to offset the amount of $26,156. Commissioner Weiland seconded the motion.
Mr. Hawkins said the City has a list of the groups that used the Royal Palm Clubhouse. These
are the organizations that would be potential users of the Woman's Club. Staff wants to make
sure that the City converses with legitimate organizations. Therefore, we will use that list as a
foundation.
Commissioner Denahan did not want to make that exclusive because the Education Advisory
Board and the Advisory Board on Children & Youth have showcased the Woman's Club in the
past. The list is a good place to start and Commissioner Denahan does not want to bring in
organizations that might be paying to use other buildings.
Mr. Hawkins clarified that he would like to use the list of people outside of the City purview that
use the Royal Palm Clubhouse as a foundation for filtering through the Woman's Club.
The motion carried unanimously.
B. Recommendation from the Institute for Government regarding the City Manager
Search
Mayor Broening said the Commission met during the hurricane to regroup and determine what
was important to the Commission. One of the major issues was the hiring of a City Manager.
Mayor Broening read into the record the recommendations stated by Dr. Lance deHaven-Smith,
20
MEETING MINUTES '--
REGULAR CITY COMMISSmN
BOYNTON BEACH, FLORIDA
,.,
'..,
~
OCTOBER 19, 1999
2001 at which point those additional funds would become void. Vice Mayor Tillman seconded
the motion that carried unanimously.
XI. LEGAL:
A. Ordinances - 2nd Reading - PUBLIC HEARING
1. Proposed Ordinance No. 099-32 Re: Authorizing abandonment of
a 20' wide segment of NE 4th Street between Boynton Beach Boulevard
and NE 3rd Ave.
Attorney Cherof read Proposed Ordinance No. 099-32 by title only.
MAYOR BROENING ANNOUNCED THE PUBLIC HEARING. THERE WAS NO ONE PRESENT WHO
WISHED TO SPEAK ON PROPOSED ORDINANCE NO. 099-32.
Motion
Commissioner Weiland moved approval. Commissioner Denahan seconded the motion. City
Clerk Sue Kruse polled the vote. The vote was unanimous.
B. Ordinances - 1st Reading
None
C. Resolutions:
None
D. Other:
1. Request for preparation of ordinance to amend City Code of Ordinances,
Chapter 2, Article VII, Sections 2-116 to 2-122 pertaining to Advisory
Board on Children & Youth
Motion
Vice Mayor Tillman moved approval. Commissioner Denahan seconded the motion that carried
unanimously.
XII. UNFINISHED BUSINESS:
A. Authorize the Finance Director to write-off balance of Woman's Club loan in the
amount of $26,156 (TABLED)
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Mr. Sugerman explained that spending the County's $83,000 and the City's minimal contribution
of $41,500 is locked into a time frame of 24 months for construction from the time the grant
agreement was signed': In addition, jobs must created one year after that 24 months. The
total time frame is 36 months. The dollars above the minimal obligation are not subject to the
County agreement. Therefore, we have flexibility on any contribution above the minimal
obligation. We have a signed contract with Palm Beach County to administer this grant
program.
Mr. Sugerman said the grant was signed on February 24, 1998; therefore, on February 24,
2000, 24 months will have passed. Ms. Francoise is allowed 24 months for construction plus 12
months for the job creation. In February of 2001, we will have to close out the obligation with
the County. They will conduct an audit and then they will close out.
Commissioner Denahan recommended reserving the additional $150,000 (approximate) until
the books are audited. This issue would become void at that time if Ms. Francoise has not
issued new plans and drawings. Mr. Hawkins pointed out that the main objective is for Ms.
Francoise to complete the project in progress to meet the current time frame. All of the
remaining discussion can come back to the Commission at that time.
Ms. Francoise said she needs more help now with the impact fees. 51-: requested that the City
pay the fees that total approximately $70,000.
Mr. Sugerman said he would have to review these figures since an invoice from the 500
Building parking lot was submitted, and that is not part of this project. Mr. Hawkins agreed that
this portion was not directly related to the grant. Mr. Sugerman committed to giving Ms.
Francoise what she is entitled to up to whatever limits the City Commission sets.
May?r Broening requested a recommendation from staff on this dollar figure.
Mr. Hawkins said the recommendation has not waivered. Staff recommends reimbursing Ms.
Francoise $41,500. Ms. Francoise needs to finish the current project within a time frame of
three years. The remaining issues will be reviewed at that time.
When Mayor Broening questioned whether the impact fees are associated with the project, Mr.
Sugerman said he was not sure.
Mr. Hawkins suggested that the Commission move forward with staff's recommendation of
$41,500. A determination is needed regarding bills that have been submitted. Mr. Sugerman
was not able to do that without time for review. If necessary, staff will return to the
Commission to request additional money.
Motion
Commissioner Denahan moved to amend the City's financial participation with Christine
Francoise in the Dolphin Plaza project as part of Palm Beach County Development Regions
Competitive Grant #R98-275-D to a maximum of $41,500 reserving the remainder of the
$195,000 (approximately $150,000) until the books are closed from the audit of February 24,
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impact fees and permits for the 500 Building and some for the Dolphin. Ms. Francoise said she
just handed Mr. Suger~an additional submittals for $58,000 in impact fees and permits.
In response to Commissioner Denahan, Ms. Francoise said the County did not pay those fees
for her. She said she paid all of the fees and the County reimbursed $37,000. Mr. Sugerman
said the County reimbursed the first submittal of $37,000. The $58,000 submittal triggered this
agenda item because the City was required to pay it.
Commissioner Weiland feels Ms. Francoise's efforts to start the revitalization in this area should
hold some weight. However, the entire project is broken down into phases and the City does
not have any assurances that the phases will come to fruition. This is something the City must
consider.
Mayor Pro Tem Sherman said the drawing that was on display represented a project that could
not move forward because Ms. Francoise does not own the land. Ms. Francoise said 50% of
the project could go forward. Mayor Pro Tem Sherman said the project necessitates ownership
of all of the land. Therefore, the project is different.
Vice Mayor Tillman agreed with Mayor Pro Tem Sherman that this was a different project. He
said he did not know what the City should offer in terms of percentages because it is totally
different. At this time, it appears that this is a case of any other business owner expanding
his/her business and he questions whether or not the City should be participating in the project.
There were agreements made about what the original project was going to bring to the City.
However, those circumstances have changed. In order to make a fair and equitable decision,
he would have to know the impact of this project on the City.
Commissioner Denahan said that in addition to the previous comments made by
Commissioners, the City was looking at a tremendous economic impact to the community. The
City is now hopeful that 8.5 jobs will be created. Commissioner Denahan reiterated that she is
disappointed with the scaled-down project. She is happy that Ms. Francoise is committed to the
redevelopment of this particular corner, but the City anticipated much more. The City's
participation should be only the minimum contribution toward the economic development of 8.5
additional jobs ($41,500).
When Ms. Francoise said she would create between 16 and 20 jobs, Commissioner Denahan
said she would not be opposed to reserving the remaining $154,000 for some point in the
future when Ms. Francoise could bring back sincere plans. Ms. Francoise said she is doing the
parking lot behind the 500 Building that is costing more than $40,000 and she has already paid
over $70,000 in impact fees.
Mayor Pro Tem Sherman explained that he was a member of the Planning & Development
Board and is aware of certain steps that must be addressed. Ms. Francoise must return to the
City with drawings that can be reviewed by staff, the Planning & Development Board and the
City Commission. Mayor Pro Tem Sherman recommended that Ms. Francoise begin the process
over again since this is a new project.
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Commissioner Denahan said the original agreement was to offset permitting fees, stormwater
drainage, and infrastructure improvements. Mr. Sugerman said the original agreement would
pay a number of her.fees for construction design. Commissioner Denahan said she is very
disappointed because this was a very large portion of the City's Vision 20/20 package. A great
deal of work and effort went into this project.
Ms. Francoise displayed a drawing that she and the contractor prepared that showed the
Dolphin expansion to the corner with "something" at the south corner. They envisioned a
walkway. Ms. Francoise said her idea was to start the first project that will amount to
approximately $450,000 or $500,000. She would then do the 500 Building. The corner with
the fountain was going to be a third phase. The contractor envisioned the amphitheater later
on if it was warranted. Ms. Francoise said the problem she has is that she does not own the
entire block and cannot do what was originally planned. Ms. Francoise said she is still planning
to do the corner and the two-story building. She will also install a fountain. She is doing the
parking behind the 500 Building. The infrastructure is needed now because of the drainage
situation in this area. Ms. Francoise said she is not planning to do the second restaurant at this
point because of the lack of parking. It might be possible to do it in the future.
When the Dolphin is completed, Ms. Francoise will begin the 500 Building. The third item would
be the corner. Ms. Francoise said the seating capacity for the Dolphin was downsized due to
the lack of parking. If the amphitheater was built now, there would be no parking at all.
Commissioner Denahan asked if Ms. Francoise had ownership of the property when she applied
for the grant. Ms. Francoise responded negatively and explained that she attempted to
purchase the property but someone beat her to it.
Commissioner Denahan said the City must take lessons learned through past experiences. She
recommended that the Commission not give more than $41,500 and reserve the remainder of
the $195,000 toward the balance of the project.
Ms. Francoise said that in the Vision 20/20 plan, the total cost of the project was $700,000.
She is spending between $450,000 and $500,000 on the Dolphin alone. The projected cost
estimate for the 500 Building is $288,000.
Commissioner Denahan requested renderings of the Dolphin project. She said she did not see a
$500,000 building being added when she was present at the Planning & Development Board
meeting. What she saw looked like a 2,500 square foot addition to an existing bar.
Ms. Francoise said the existing bar was being completely gutted and redone. They are not just
adding on a 2,500 square foot addition. Ms. Francoise did not have renderings for review by
the Commission. Ms. Francoise said the corner building would probably cost a minimum of
$300,000 to $400,000. She is spending a great deal more than the amount projected for this
project in Vision 20/20.
Ms. Francoise said the City committed impact fees, permits and additional seating impact fees
to her that amounted to a lot more than $41,000. She has already given the City $37,000 for
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explained to the County that the existing business would be expanded, new business would be
created and new jobs would be created. Ms. Francoise proposed expanding the Dolphin Bar
into a bar and restaurant, expanding a two-story office building that would include office space
and retail space and in a second phase, she would install an amphitheather, stage and a
fountain on the corner of the property. This project was part of the discussions of the
revitalization of the downtown and the City was strongly encouraged because it blended well
with the marina project. Palm Beach County agreed to participate in this project in the amount
of $83,000. The City committed to participate in the amount of $195,00 and Ms. Francoise was
responsible for everything above those amounts (approximately $450,000). The grant was
approved and the City entered into an agreement with Ms. Francoise.
After a number of years, Ms. Francoise submitted her building application. The City found that
what was planned to construct was significantly less than what was envisioned in the original
grant agreement. Ms. Francoise has submitted for an expansion of the Dolphin Bar into the
Dolphin Plaza Restaurant. The submittal did not include the retail space, the amphitheater,
pedestrian walkway or fountain. Mr. Sugerman questioned whether or not the City was still
prepared to participate in the amount of $195,000 knowing that the actual project is less than
what was originally proposed.
Palm Beach County's participation in this program is mostly for job creation purposes. The
County has asked for the creation of 8'/2 jobs for their participation and Ms. Francoise indicated
she would create those jobs. Their grant agreement identifies the ultimate creation of 52 jobs
from the retail space, amphitheater and the stage. Many of those jobs will no longer be
created. Palm Beach County is disappointed that the larger project is not going forward, but
they will still commit their $83,000 for the creation of the minimum 81/2 guaranteed jobs. The
County said the City must make its own determination on what it wants to do with its $195,000
participation.
With the County continuing to participate at $83,000, the City has a minimal obligation of
$41,500 to this project. Mr. Sugerman feels the range of the City's participation should be
somewhere between $41,500 and $195,000. Mr. Sugerman did not suggest that the City
remove all of its obligation except for $41,500. He recommended that the City consider
reducing its participation to the $41,500 and setting the balance of the initial obligation aside
until the full project is done.
Vice Mayor Tillman asked how much of the project was scaled down in terms of the total size of
the property. Mr. Sugerman displayed the two site plans. He said the original site plan was
going to be expanded to include storage, a stage, event seating, a promenade and a fountain.
What has been submitted is an expansion of the Dolphin Bar that would double the size of the
existing establishment. This project has been permitted for construction and the project is
underway.
Mr. Hawkins explained that the original City input into this project with respect to funding had
to do with making the size of this project successful particularly with regard to stormwater and
utilities. The project Ms. Francoise is now doing does not need the type infrastructure that the
original project envisioned.
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Commissioner Denahan also asked if a conditional use application is the only time an application
would go to the CRA. Commissioner Denahan pointed out that the Planning & Development
Board serves a very useful purpose and the Commission relies on their review. In this case,
that process was not served. She would like recommendations from staff to determine if this is
the best review process.
Attorney Cheraf said staff and the City Attorney can look at the language of the Code that
dictates this process in an effort to find the proper balance between expediting projects of this
nature while still preserving the review process at the same time.
B. Approval of special warranty deed conveying title to Shandra Frazier for Lot 62 &
63, Cherry Hills (Proposed Resolution No. R99-140)
ATTORNEY CHEROF ANNOUNCED THE PUBLIC HEARING ON THIS ITEM. THERE WAS NO ONE
PRESENT WHO WISHED TO SPEAK ON THIS APPLICATION.
MotlOi1
Vice Mayor Tillman moved approval of Proposed Resolution No. R99-140. Commissioner
Weiland seconded the motion that carried unanimously.
VIII. BIDS:
None
IX. DEVELOPMENT PLANS:
None
X. NEW BUSINESS:
A. Amend the City's financial participation with Christine Francoise and the Dolphin
Plaza project as part of Palm Beach County Development Regions Competitive
Grant #R98-275-D (TABLED)
Motion
Commissioner Denahan moved to remove this item from the table. Vice Mayor Tillman
seconded the motion that carried unanimously.
Christine Francoise approached the podium and requested that Dale Sugerman assist her in
defining her project for the City Commissioners.
Dale Sugerman, Assistant City Manager, said the City entered into an agreement with Palm
Beach County and Christine Francoise under the Development Regions Competitive Grant
Program. Ms. Francoise approached the City approximately 21/2 years ago with a proposal to
expand her business in a way that it would create jobs. The City supported her application and
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showed the Eckerd's signage removed from the large gazebo. A large blank area remains.
Eckerd's would not be. opposed to the City putting something in that area that represents
Boynton Beach. -
Commissioner Denahan asked if the gazebo on the northeast corner of the site was before or
after the entrance. Ms. Miskel said the gazebo would be north of the Federal Highway entrance
and it is set back far enough so that it is not in the sight triangle or the setback area.
Commissioner Denahan asked for clarification of the need for the variance. Ms. Miskel said the
proposed location of the monument signs was shown on the plan. The first sign would be
outside the setback area and the second is near the island that is more centrally located on
Boynton Beach Boulevard. The applicant had to work with landscaping that was proposed and
the location of the park benches so that they did not invade each other's area.
Commissioner Denahan questioned why the monument signs needed to be 6' high. She said
that at the Eckerd's on Lucerne and Dixie Highway, there is only one monument sign and it is
significantly smaller. Ms. Miskel said the maximum is what is permitted by Code, but Ms. Miskel
is not certain it will be six feet.
Mr. Hawkins asked if there had been any further discussion with staff regarding the bench
designs. Ms. Miskel said the applicant is prepared to work with the City on this issue.
MAYOR BROENING ANNOUNCED THE PUBLIC HEARING. THERE WAS NO ONE PRESENT WHO
WISHED TO SPEAK ON THIS APPLICATION.
Motion
Vice Mayor Tillman moved approval of the Eckerd Drugstore at the corner of Boynton Beach
Boulevard and Federal Highway, request conditional use approval for the construction of an
11,938 square foot retail building with drive-up window on 1.51 acres with additional comments
and concerns as set down by staff and Commission. Commissioner Weiland seconded the
motion that carried unanimously.
Commissioner Denahan thanked staff for working diligently to attain the Coastal Florida look we
have been trying to attain as mentioned in the Vision 20(20 process. She asked if this
application was returned to the CRA because it was a conditional use and inquired jf this
application would have gone through the Planning & Development Board it it were a site plan
approval.
Attorney Cherot advised that the conditional use required this application to go before the
Community Redevelopment Agency.
Commissioner Denahan requested that staff make recommendations to the Commission
regarding ways to keep the process streamlined to meet developers' needs while balancing the
review process to meet the City's needs.
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rcquircs found~tion pl~nting), ~nd te-maximize its potential as a
signature structure. Alternatively, two monument signs at a
maximum of six (6) feet high, will be allowed at the
northeast and southwest entrances consistent with sign
code and if applicable, the variance process."
There had been discussion of the prospect of removing the sign from the gazebo and the
location of two monument signs no greater than 6' in lieu of that. Ms. Miskel and Mr. Rumpf
concluded that a variance would be needed to do that. The applicant has no objection to
applying for that variance; however, there is no guarantee that a variance would be granted.
Therefore, the applicant would agree to submit the variance application. In the event the
variance is denied, the applicant would have the right to the gazebo.
Commissioner Oenahan asked Ms. Miskel if the applicant selected a more suitable color for the
roof. Ms. Miskel said she brought the suggestion back to Eckerd's, but their color is part of
their identity and they are firm on the color. It is patented and part of their trademark. They
offered another prototype that has neutral colors and "s" tile that is earth tone. Ms. Miskel said
Eckerd is prepared to modify the main Eckerd's signage. They are willing to remove the blue
background and use a beige tone in its place. The letters would be blue lettering on a light
beige background.
Commissioner Oenahan said she is vehemently opposed to the blue roof. She feels this is a
signature sign and the name "Eckerd's" would not be needed on the building. In this case, she
feels it is another marketing tool. Commissioner Oenahan asked if staff prefers the
Mediterranean style tile roof to the Florida Coastal blue roof.
Mr. Rumpf said there are pros and cons to both. There will be consistent design elements on
the marina project that may have stronger colors. The Banana Boat is proposing to revise their
building and it would probably have a colored metal roof. This is how the consistency elements
are determined. With respect to the tile, there may be some consistency in the Coastal zone
area along US # 1. The Mizner Buildings will have tile elements. There is nothing in writing that
says it must be one way or the other. Staff will look for consistency.
Mr. Hawkins explained that staff is not opposed to either scenario. Initially, the Eckerd's
representatives were directed to the Woman's Club building as an example of architectural
features. Mr. Rumpf is of the opinion that there will be more metal roofing in the immediate
area.
Mayor Broening confirmed with Mr. Rumpf that a variance is required. Mr. Rumpf explained
that at the CRA meeting, it was the applicant's understanding that the CBO area did not limit a
single-use site to a single sign. That is not the case.
Mr. Hawkins asked for clarification of the two gazebos that were discussed at the CRA meeting.
Ms. Miskel displayed a small elevation for review by the Commissioners. The applicant has
located a gazebo at each end as discussed. The gazebo is set back so that there is no invasion
of the visibility triangle. It is outside the setback requirements. One gazebo is on the northeast
corner and one is on the southwest corner of the site. The small schematic that was reviewed
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day pumping water on Industrial Avenue. Help is needed in this area. The Stormwater crew
also needs relief since there are only five employees in this area. We pay only $1 per month for
storm water and- "you get what you pay for".
VII. PUBLIC HEARING:
A.
Project:
Agent:
Owner:
Location:
Description:
EckF rd Drugstore
Donna West - Carnahan, Proctor & Cross Inc.
Boynton/Federal Development, Inc.
Northwest corner of Federal Highway & Boynton Beach Boulevard
Request conditional use approval for the construction of an
11,938 square foot retail building with drive-up window on 1.51
acres
Attorney Cherof administered the oath to all that would testify during this quasi-judicial
proce~ding. Attorney Cherof advised that the agenda back-up material contained the
Conditions of Approval. He recommended that the applicant identify only those Conditions of
Approval that were not acceptable.
Bonnie Miskel, 222 Lakeview Avenue, West Palm Beach, said all of the Conditions of Approval
were acceptable. However, the applicant had two comments on three of the conditions.
There was a long discussion during the Community Redevelopment Agency meeting on a
number of items and with the help of staff, compromises were reached that should be
acceptable to everyone. Ms. Miskel referred to Comments #34 and #35 that read as follows:
Comment #34
Comment #35
"Revise Comment #6 to read as follows: Within the Boynton
Beach Blvd. Roadway, remove the westbound left turn lane into
NE 4th St. and stripe a continuous left turn storage lane for
eastbound traffic generally from the F.E.C. railroad to U.s. 1.
This will allow some storage capability for left turns into the
common project driveway. This will rcquirc is subject to
receiving F.D.O.T. approval and permitting."
"Revise comment #7 to read as follows: Request F.D.O.T. to
install a yellow, warning flasher in the concrete median for
Boynton Beach Blvd. Eastbound traffic to keep vehicles out of the
F.E.C. crossing when there are stacking conditions. This wfH
r-cquirc is subject to receiving F.E.C. and F.D.O.T. approvals."
Ms. Miskel said the applicant would like it clearly understood that the application that they are
to make to F.D.O.T. and F.E.C. should not delay the issuance of a building permit or Certificate
of Occupancy.
Comment #41
"Revise comment #30 to read as follows: Remove signage from
gazebo to prcvcnt structurc from being construed ~s Stgfl
structurc (structurc cxcceds m~ximum height ~lIowed ~nd
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built on this parcel. It is the will of the citizens that the land be developed as a park. She
offered the namel "The People's Park" for the lO-acre parcel. She urged the Commissioners to
make a decision very seon with respect to this issue.
Tony Mignano, 614-617 West Industrial Avenue, said he has had 16 inches of water
inside his warehouse for the past five days. He cannot take his trucks out of the facility and all
of his machines that were sitting on the floor are full of water. He has more than $20,000
worth of damage in the warehouse. Mr. Mignano circulated photos he took on Sunday and
earlier this afternoon. Mr. Mignano asked if the City was planning to do anything to correct this
situation. He said that for the last 10 years, every time it rains, he calls the City. The City
claims they plan to do something about it, but nothing has been done yet. He urged the City
Commissioners to fix the street.
Ron Whittaker, 3..59 West Industrial Avenue, said he built at this location in 1985 and he
is tired of living with the flooding problem. Mr. Whittaker is aware of the fact that it would cost
$1.6 million to fully correct this situation. A pump was delivered today at 11:00 a.m., but it was
too late. Everyone has damage. This area has an additional problem with the access road from
East Industrial Avenue to West Industrial Avenue. Nancy Byrne has been assisting with this .
problem, but Mr. Whittaker believes the Commission needs to assis.t by putting pressure on
Comcast. Ken Hall has also assisted, but this area needs immediate help. This industrial park
is the forgotten area of the City and needs some attention.
Mel Lowe, 630 West Industrial Avenuel said every time it rains, he gets one foot of water
in his building. It cost him more than $1001000 last year because the computers got wet and
the carpets were replaced three times. When the trucks go through this water, it costs $600
for each vehicle to take off the wheels and bearings and replace everything. The solution to
this water problem has been to take off the manhole covers of the sewer to let the water flow.
Mr. Lowe drove down the street on Sunday and his new truck dropped into the manhole
because there were no barricades around it. The water in the toilets has been backing up into
the office space since Thursday. The pump did not come out until today. The manhole is so
full that the water will not go down any further.
Mike Brandellen, 518 Industrial Avenue, said he didn't have much to offer in addition to
what was said other than the fact that during this f100dl there was sewage coming back into
the facilities. This was a more dangerous situation. Although the pump arrived today, it was
too late since the damage was done.
Mary Law, 625 South Federal Highway, knows that the City workers were very busy this
weekend but questioned where the chiefs at City Hall were. She said there should have been
announcements on the television regarding limiting the use of washing machines and limiting
the flushing of toilets. She reported that the sewer cap across from Dr. Panzer's was floating
for three days. People drive through the puddles and spread the water through the adjoining
properties. The City knows where the problems exist and they should put up barricades before
the rain starts. It is time to take strong action as a community.
Tina Smith, 15 Belaire Drh said she and her husband have a warehouse on Industrial
Avenue that flooded. Ms. Smith is a member of the Stormwater Team and she spent her entire
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throughout the City have told him that Pond "B" was a "done deal". However, it
is not a: good as done and it will cost a lot more money than was anticipated.
3. From the report given by Larry Roberts with regard to Gateway Boulevard, the
project began 60 days ago and it is already 60 days behind schedule. This is not
a comforting situation knowing that Ocean Avenue is the next project. Mr. Scully
recommended hiring a permanent and qualified City Manager and Development
Director and to finish the projects that are already underway in a timely manner
in order to earn back the confidence of the people.
Brian Edwards, G29 NE 9th Avenue, representing Inlet Cove Association, thanked the Police
and Fire/Safety personnel for all they do throughout the City and for their awareness and
serious attention to the dangerous situation at the Bikini Beach Club since May. The residents
are ashamed of the fact that even though they have some of the most politically active people
living in their communities, they abut an embarrassing display of disarray. Unbearable noise in
early morning hours, inappropriate behavior from Club patrons and an increase in serious
criminal activity is too much to bear. The Inlet Cove Association requested assistance in halting
this situation. The Bikini Beach Club has done nothing but encourage the worst of a bad
situation. The residents do not want this kind of example for the young adults and do not want
senior citizens to be prisoners within their own homes. The residents are looking forward to
working with the City to resolve this situation.
Ron Washam, 112 S. Atlantic Drive, Chairman of the Community Relations Board,
announced the first in a series of forums planned by the board. He invited everyone to attend
the forum on "Conflict Resolution for the New Millenium" on Thursday, October 21st at 6:30
p.m. at the Fire Station. This will provide an opportunity for open dialogue. The board
members will come back to the City Commission with a report on how they can assist in
bringing about a positive change.
Mr. Washam said the Community Relations Board's Annual S.T.A.R.'s Program will be held on
Saturday, October 30th at the City Library between 9:00 a.m. and 2:00 p.m. The S.T.A.R.
Program stands for "Students Trained and Ready". This event focuses on students who will
begin working in the community and provides seminars on how to dress for success, fill out
employment applications and how to go through job interviews. Many of the local businesses
participate in this event.
Herb Suss, resident of Quail Run, said he read a newspaper article in the Sun-Sentinel
regarding the hiring of a "head-hunter" for the purpose of identifying a new City Manager. The
cost of this consultant would be between $8,000 and $9,000. Mr. Suss said this was ridiculous
and there is no need for this expenditure since there are qualified people within the City to fill
this position. Mr. Suss requested that this Commission delay the appointment of a new City
Manager since this search will take months and two new Commissioners would be elected in
March. Mr. Suss feels this expenditure of funds continues to make the City of Boynton Beach a
laughing stock. He accused the Commissioners of inviting ridicule.
Henrietta Solomon, 230 NE 26th Avenue, said she is certain that after many weeks of
research with respect to the 10-acre park, the Commission has concluded that a park should be
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. Neighb6rhood Projects - The neighborhood projects are continuing in
spite of the departure of Hank Ackermann, Neighborhood Project
Specialist. Concrete pouring and installation of curbing are underway and
landscaping of the medians will be the next step. It is the City's goal to
have a new Neighborhood Project Specialist on board before January 1st.
. Disaster Recovery Center - The City of Boynton Beach is working closely
with State and federal agencies to set up a Disaster Recovery Center here
in Boynton Beach. We are anticipating a response from F.E.M.A.
regarding whether or not they will accept our offer. If they accept the
offer, additional information would be forthcoming as to the location of
the center.
VI. PUBLIC AUDIENCE:
Mayor Broening announced that all speakers would be timed and limited to three minutes.
Dee Zibelli, 440 Ocean Pjlrkway, said the reason why she was not present at the Public
Forum on City Finances was because her son, who works for the FAA, notified her to shutter
her home because the storm was heading toward us.
Ms. Zibelli said she finds it hard to believe that not appointing Mr. Hawkins as City Manager is a
race issue. During the last City Manager search when Mayor Taylor did not appoint the next
qualified applicant, an African-American from Tyler, Texas, there was no uproar from the Black
community. Ms. Zibelli said she was the only one who commented on the unethical choice by
eliminating Mr. Turner and going back to the drawing board and choosing Kerry Willis.
Ms. Zibelli questioned why the City Commission is so adamant about not having an independent
auditor review every department to see where we could save money and to determine where
the money has been expended in the past few years. Vice Mayor Tillman claimed that the City
was broke and it would be necessary to develop the land the people voted to be a park. Ms.
Zibelli said she received numerous calls from the Leisureville community saying that Lee Wische
was walking the pool area telling residents that property needs to be made commercial because
the City is broke. These remarks can be verified. Ms. Zibelli said that in this economy, we
should be in good shape if the City did not give $750,000 in perks to Garcia/Jarvis. This is why
we need an audit. It would be well worth the money.
Kevin Scully, Scully's Market, addressed three issues as a result of the CRA meeting:
1. The loading zone designed for Scully's Market is 110' from the front door. That
is completely unacceptable.
2. For months, Mr. Scully has requested that the City complete the Ci ~truction of
Pond "B" before other drainage projects are started in the City. Many people
8
MEETING MINUTES ....,...,
REGULAR CITY COMMISSION
BOYNTON BEACH, FLORIDA
..... '-'
OCTOBER 19, 1999
4. Proposed Resolution No. R99-138 Re: Approving application with
the Dept. of Business & Professional Regulation to allow for the sale of
beer and wine at The Links of Boynton Beach Restaurant
5. Proposed Resolution No. R99-139 Re: Approving agreement with
Lantana Police Department pertaining to use of firing training range
D. Ratification of Planning & Development Board Action:
None
E. Approve the donation from Law Enforcement Trust Fund to The Juvenile
Transition Center, Inc. of Boynton Beach in the amount of $2,000
F. Approve funds for Housing Rehabilitation Case #4-98-013, Ethel Mae McCormick,
residing at 611 NW 5th Street, in the amount of $14,020
G. Approve S.H.1.P. grant funds in the amount of $17,800 to Deborah Robinson to
purchase property located at 351 NE 27th Ave.
H. Approve S.H.1.P. grant funds in the amount of $11,000 to Shandra Frazier and
Charles Gaskin to build on property located on NW 9th Ave.
1. Approval of Bills
J. Approve the American Heart Association's Special Event application request to
conduct the American Heart Association Heart Walk on October 23, 1999 at
Quantum Corporate Park Trail and Motorola property
K. Declare a 0.248 acre triangular-shaped median, located at the intersection of NW
3rd Court and NW 3rd Avenue as surplus and direct staff to initiate sales
proceedings beginning with a legal advertisement
Motion
Commissioner Denahan moved to approve the Consent Agenda as presented. Vice Mayor
Tillman seconded the motion that carried unanimously.
v. CITY MANAGER'S REPORT:
Mr. Hawkins reported the follows:
. Kids Kingdom - The rebuilding is on schedule and moving forward. A
representative of the Leathers organization is the project manager on
site. It is anticipated that the Kids Kingdom will be fully open by mid-
November if the weather cooperates.
7
MEETING MINUTES
REGULAR CITY COMMISSION
BOYNTON BEACH, FLORIDA
OCTOBER 19,1999
Mr. Hawkins reported that our Safety Committee has received statewide recognition. As a
result of this Safety Committee, Mr. Hawkins gets an opportunity to teach once a year at the
Safety Council Effective Safety Committee. He urged the Safety Committee to keep up the
good work in making the City look good.
IV. CONSENT AGENDA:
Matters in this section of the Agenda are proposed and recommended by the City Manager for
"Consent Agenda" approval of the action indicated in each item, with all of the accompanying
material to become a part of the Public Record and subject to staff comments.
A. Minutes:
1. Special City Commission Meeting - September 21, 1999
2. Regular City Commission Meeting - September 21, 1999
3. Joint City Commission/Chamber of Commerce Workshop - September 27, 1999
4. Regular City Commission Meeting - October 5, 1999
B. Bids - Recommend Approval - All expenditures are approved in the 1999-2000
Adopted Budget
1. Award the bid for "PISTOL RANGE ROOF REPAIRS LOCATED AT: 3501 N.
CONGRESS AVENUE, BOYNTON BEACH, FLORIDA" to Therma Seal Roofs,
Inc., in the amount of $14,478 (PROPOSED RESOLUTION NO. R99-134)
2. Award the two year bid for "PRINTING OF CITY WIDE NEWSLETTER - VISIONS,
VIEWS AND CITY NE.W5" TO Printsmart, Inc. with an anticipated expenditure of
$16,000
3. Award the "ANNUAL BID FOR DELIVERED REFRESHMENTS FOR THE LATCHKEY
AFTERSCHOOL PROGRAM" to Sandra L. Stroke, in the amount of $12,834
4. Approve a Change Order to the bid for "ANNUAL SUPPLY OF SODIUM
HYDROXIDE" (UQUID CAUSTIC SODA) to Jones Chemicals, Inc. for an additional
amount of $45,950, bringing the estimated annual expenditure to $85,950
C. Resolutions:
1. Proposed Resolution No. R99-135 Re: Approving the Oceanfront
Park Concession Lease Agreement between the City of Boynton Beach
and Partners Plus, Inc.
2. Proposed Resolution No. R99-136 Re: Approving the renewal of a
contract with the Children's Services Council for the 1999-2000 fiscal year
Latchkey Afterschool Program in the amount of $46,052
3. Proposed Resolution No. R99-137 Re: Approving agreement with
Lifecast.com for website development for The Links at Boynton Beach
6
./
MEETING MINUTES ~ "
REGULAR CITY COMMISSION
BOYNTON BEACH, FLORIDA
'J ..",
OCTOBER 19, 1999
Motion
Vice Mayor Tillman moved to approve the appointments and table all remaining appointments.
Commissioner Denahan seconded the motion that carried unanimously.
III. ANNOUNCEMENTS & PRESENTATIONS
A. Announcements:
1. T.N.T. Concert - Friday, November 19, 1999 from 6:00 p.m. until 9:00
p.m. - "The Lakota Band" (Southern Rock)
Mayor Broening made this announcement.
2. Green Market - Saturday, October 23, 1999 from 8:00 a.m. until 11:00
a.m. - North side of the City Library
Mayor Broening made this announcement.
3. Palm Beach County's Annual "Paint Your Heart Out 1999" in conjunction
with "National Make a Difference Day" - Saturday, October 23, 1999
beginning at 8:00 a.m.
At Mayor Broening's request, Octavia Sherrod announced that on Saturday, in conjunction with
National Make a Difference Day, Paint Your Heart Out of Palm Beach County would be painting
30 homes, eight of which will be in the City of Boynton Beach. City employees and their
families will do three of those homes. The City is soliciting volunteers to help paint the homes
of elderly and handicapped residents. Volunteers can fill out forms and contact Ms. Sherrod at
742-6066.
4. Community Forum hosted by the Community Relations Board
Mayor Broening announced that the Community Relations Board would host an Open Forum for
citizens of Boynton Beach titled "Conflict Resolution and Community Relations for the 21st
Century". This forum will be held on Thursday, October 21st at 6:30 p.m. at Fire Station #3 on
Congress Avenue and Miner Road. For additional information, contact Beth Miller at 369-0230.
5. Core Grant
Mr. Hawkins announced that the City applied to Palm Beach County for funds to participate in
their Core Grant Program that is directed toward businesses. The purpose of these funds is to
expand business operations, do fa<;ade improvements and hire additional employees.
Interested parties were invited to contact Dale Sugerman in the City Manager's Office. The
deadline for submittal is October 29th. Mr. Hawkins said the City needs more participation from
businesses.
3
MEETING MINUTES
REGULAR CITY COMMISSION
BOYNTON BEACH, FLORIDA
OCTOBER 19, 1999
II. ADMINISTRATIVE:
A. Appointments to be made:
Appointment Length of Term
To Be Made Boa rd Expiration Date
III Sherman Children & Youth Advisory Board Alt 1 yr term to 4/00
IV Tillman Children & Youth Advisory Board Stu/NonVoting 1 yr term to 4/00
II Denahan Bldg. Board of Adjustment & Appeals Reg 3 yr term to 4/01
III Sherman Bldg. Board of Adjustment & Appeals Reg 3 yr term to 4/02
IV Tillman Bldg. Board of Adjustment & Appeals Alt 1 yr term to 4/00
Mayor Broening Bldg. Board of Adjustment & Appeals Alt 1 yr term to 4/00
Mayor Broening Code Compliance Alt 1 yr term to 9/00
III Sherman Community Relations Board Alt 1 yr term to 4/00
IV Tillman Community Relations Board Reg 3 yr term to 4/00
Mayor Broening Community Relations Board Reg 3 yr term to 4/02
Mayor Broening Education Advisory Board Reg 2 yr term to 4/01
I Weiland Education Advisory Board Reg 2 yr term to 4/00
I Weiland Nuisance Abatement Board Reg 2 yr term to 4/01
Weiland Recreation & Parks Board Alt 1 yi" term to 4/00
Weiland Firefighters' Pension Board Reg 2 yr term to 4/00 Tabled (2)
The following appointments were made:
Vice Mayor Tillman appointed John Critchett as a Regular member of the Community
Relations Board and requested that all of his remaining appointments be tabled.
Commissioner Weiland appointed Ronald Ehster as a Regular member of the Education
Advisory Board and requested that all of his remaining appointments be tabled.
Mayor Breening requested that all of his appointments be tabled.
Mayor Pro Tem Sherman requested that all of his appointments be tabled.
Commissioner Denahan requested that her appointment to the Building Board of Adjustment &
Appeals be tabled.
2
~./-, r
~i(j -F\
..., ... ....,..- \. ..,
MINUTES OF THEREGULAR CITY COMMISSION MEETING
HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA
ON TUESDAY, OCTOBER 19, 1999 @ 6:30 P.M.
PI ann 'rx:J
PRESENT
Gerald Broening, Mayor
Henderson Tillman, Vice Mayor
William Sherman, Mayor Pro Tem
Nellie Denahan, Commissioner
Ronald Weiland, Commissioner
Wilfred Hawkins, Interim City Manager
James Cherof, City Attorney
Sue Kruse, City Clerk
NOV - A
. ......,-..,-.
.-1
<I. .,.,
I.
OPENINGS:
A.
S.
C.
Call to Order - Mayor Jerry Sroeniflg
Invocation - Reverend Sob Hahn - First United Methodist Church
Pledge of Allegiance to the Flag led by Mayor Pro Tem William Sherman
i
_ J
- ~'^..,-
Mayor Sroening called the meeting to order at 6:30 p.m. Following the invocation, Mayor Pro
Tem-slierman led the Pledge of Allegiance to the Flag.
Mayor Sroening announced that the public would observe the following changes at future
meetings:
1. Meetings will begin on time.
2.
Agenda additions, deletions and corrections will be reduced, and possibly
eliminated, as a result of a pre-meeting workshop strictly related to agenda to
offer Commissioners time to gather information in order to more reasonably
debate the issues and to prohibit surprises.
/'
D. Agenda Approval:
1. Additions, Deletions, Corrections
Mayor Sroening requested the addition of Item III-A.4, Community Forum hosted by
Community Relations Soard",
Mayor Sroening requested the addition of Item XII-S, "Recommendation of the Institute for
Government regarding City Manager Search".
Interim City Manager Hawkins requested the addition of Item III-A.S, "Core Grant".
2. Adoption
Commissioner Denahan moved to approve the agenda as amended. Vice Mayor Tillman
seconded the motion that carried unanimously.
1
REQUEST FOR PUBLISHING
LEGAL NOTICES AND/OR LEGAL ADVERTISEMENTS
A completed copy of this routing slip must accompany any request to have a Legal Notice or
Legal Advertisement published and must be submitted to the Office of the City Attorney two
(2) working days prior to the first publishing date requested below.
ORIGINATOR: PlanninQ and Zoning Division
PREPARED BY:
Michael Rumpf
DATE PREPARED:
September 29, 1999
BRIEF DESCRIPTION OF NOTICE OR AD: Conditional Use Approval for Eckerd DruQstore
with drive-throuQh window. October 19. 1999 - City Commission meetinQ.
SPECIAL
INSTRUCTIONS
AND REQUIREMENTS: (Size of Headline, Type Size, Section Placement, Black Border,
etc.)
STANDARD LEGAL AD
SEND COPIES OF AD TO:
Property owners (postmarked October 9. 1999) within a 400 foot radius of the subiect
property. applicant and the PlanninQ and ZoninQ ManaQer.
NEWSPAPER(S) TO PUBLISH: The Post
DATE(S) TO BE PUBLISHED: October 9. 1999
APPROVED BY:
(1) /~ -- .--- c::.-
(Originator)
'7 - 2- 5- - ??
(Date)
(2)
(City Attorney)
(Date)
RECEIVED BY CITY CLERK:
COMPLETED:
SALE AND PURCHASE AGREEMENT v!
THIS AGREEMENT made and entered into this I1-'-dayof /If,dl-- , 1999,
by and between ELIZABETH GILL, TRUSTEE, an individual, hereinafter ("Seller"), and
BOYNTON/FEDERAL DEVELOPMENT, INC., a Florida corporation, hereinafter
("Purchaser"), or assigns.
WITNESSETH:
WHEREAS, Seller is the owner of property located at 323 North Federal Highway,
Boynton, Beach, Palm Beach County, Florida. (approximately 13,000 square feet (subject
to survey) legally described on Exhibit "A", attached hereto, hereinafter \,PROPERTY")),
and Purchaser desires to purchase said property; and
WHEREAS, Seller wishes to sell and Purchaser wishes to buy the Property upon
the terms, covenants and conditions hereinafter set forth.
NOW. THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the parties agree as follows:
1. DEFINITIONS: For purposes of this Agreement. the following terms shall
have the following meanings:
"Acceptable Title" means good, marketable, and insurable fee simple record
title to the Property, free and clear of all Title Defects, except for any
Permitted Exceptions and any special title matter to which Purchaser waives
objection.
"Aoreement" means this Agreement for Sale and Purchase as originally
executed and as it may be amended in writing, from time-ta-time as provided
herein.
"Closino" means the execution and delivery of those documents, and the
payment of those funds required to be paid at the time and manner required
hereunder.
"Conditions Precedent" means those items, if any, which must be satisfied
prior to Closing in order to obligate the Purchaser to purchase and the Seller
to sell the Property under the terms and conditions hereinafter described.
"Escrow Aoent" means the party, if applicable, who will hold the Escrow
Deposit in accordance with the terms of this Agreement.
contract\giIl5. spa \3/1 0/99
"Escrow Deposit" means all funds delivered by Purchaser to Escrow Agent
or Seller in connection with this Agreement which serves as partial
consideration for Purchasers obligations hereunder.
"Effective Date" means the date when this Agreement is last signed by both
the Seller and Purchaser, and which date shall be evidenced by a written
confirmation.
"Inspection Period" means Purchaser shall have an unconditional inspection
period of sixty (60) days from the Effective Date to conduct an inspection at
the Property and receive if desired a refund of its deposit and interest during
this period of time.
"Permitted Assians" means those parties to whom this Agreement may be
transferred without the prior written approval of Seller, as long as a majority
of the new Purchaser( s) are principals of Boynton/Federal Development, Inc.
"Permitted Exceptions" means the title exceptions set forth in Schedule "B"
of the Title Commitment, which are acceptable to Purchaser, and which Title
Commitment shall be secured by Purchaser within thirty (30) days of the
Effective Date. Purchaser shall have twenty (20) days to review and accept
or reject same. Purchaser shall attache a list of all title objections, if any,
with its notice to Seller. If Purchaser does not accept the "exceptions",
Purchaser shall be entitled to an immediate refund of its deposit and interest,
which shall be its sole remedy. Permitted Exceptions shall specifically
include (a) liens for state, county, and municipal ad valorem real property
taxes for the current year (to be prorated); (b) liens for special assessments
for public or municipal improvements, whether pending, completed or
certified, confirmed, ratified, or otherwise due and payable; (c) easements
for public utility services and facilities that serve the Property or the
improvements or are located along and parallel to the front, rear, and side
boundaries of the Property and do not, in Purchaser's sole discretion,
substantially impair, prohibit, or interfere with the use of the Property; (d)
easements, reservations, and restrictions of record that are common to any
plat or subdivision of which the Property is a part, that are not in violation or
coupled with any reversionary or forfeiture provision, and that do not in
Purchaser's sole discretion, impair, prohibit, or interfere with the use and
occupancy of the Property; (e) claims for vendors', carriers', mechanic's,
materialmen's, and other similar liens arising from the Property, if each such
claim of lien is discharged by payment; and (f) any other lien, exception I
assessment, encumbrance, reservation, or restriction to which Purchaser
waives objection or that can be removed or satisfied by Seller on the Closing
Date.
2
"Pro-rated" means the allocation of an item of expense or income between
Seller and Purchaser based upon the percentage of the time period as to
which such item of expense or income relates as of Closing.
"Property" means the parcel of land that is legally described on Exhibit "A"
to this Agreement, together with all easements, tenements, hereditament,
and appurtenances on or to that land.
"Purchase Price" means the full consideration agreed to be paid by the
Purchaser to the Seller for the purchase of the Property. All sums refer to
the currency of the United States of America.
"Survey" means that certain survey to be prepared at the expense of
Purchaser, in accordance with this Agreement by a licensed surveyor and
certified to Purchaser.
"Title Defect" means a lien, defect, exception, encumbrance, restriction,
reservation, or imperfection in, to, or on the record title to the Property, as
defined in the standard Florida Bar Sale Agreement.
'Title Insurance" means the Title Insurance Commitments and Policy issued
by a recognized title company selected or approved by Purchaser in
accordance with the terms of this Agreement.
"Transaction Document" means this Agreement and all of the documents
required or contemplated in connection with the Closing of this transaction.
2. PROPERTY TO BE CONVEYED: Seller agrees to sell and convey to
Purchaser and Purchaser agrees to buy from Seller the Property, upon the terms and
conditions hereinafter set forth and subject to performance of all conditions of this
Agreement and performance by each party hereto of its respective obligation hereunder.
3. PURCHASE PRICE OF THE PROJECT: $325,000.00
PAYMENT:
(a) Escrow Deposit payable to Escrow Agent upon execution of this
Agreement by Purchaser to be placed in a interest bearing account
(to benefit Purchaser), which sum shall be applied to the Purchase
Price at closing. Purchaser must provide the Escrow Agent with its
Federal Tax Identification number, which is the number under which,
any and all, interest earned will be reported to the Internal Revenue
Service by Purchaser.
$10,000.00
3
(b) Mer expiration of the inspection period, in the event Purchaser elects
not to terminate this Agreement, Purchaser will deposit in escrow an
additional sum of $15,000.00 to be held in an interest bearing
account, to the benefit of Purchaser, which sum shall be applied to
the Purchase Price at closing.
(c) Balance of $300,000.00 due in cash and payable at Closing to Seller,
subject to adjustments and prorations as herein provided.
4. TITLE EVIDENCE: Purchaser shall secure within thirty (30) days, at its sole
expense, a Title Insurance Commitment on the Property issued by a licensed Florida title
insurer. Upon recording of the deed to Purchaser, Purchaser at its expense, shall secure
an Owner's Policy of Title Insurance in the amount of the Purchase Price, insuring
Purchaser's title to the Property. Seller shall make available to Purchaser copies of any
title V\K)rk in its possession. Before the 20th day following Purchaser's receipt of the title
insurance commitment, Purchaser shall notify Seller of each exception or requirement for
a Title Defect that it considers to impair Acceptable Title to the Property and that it will not
waive. If Purchaser fails to notify Seller within the time period of its objection to a Title
Defect(s), Purchaser will be deemed to have waived the Title Defect. If Purchaser timely
notifies Seller of its objection to a Title Defect, Seller shall within the following fifteen (15)
days notify Purchaser whether Seller intends to cure, correct or remove a Title Defect.
Purchaser and Seller hereby agree that Seller shall not be obligated to cure any Title
Defect and may by written notice to Purchaser waive any curative period and thereby
require Purchaser to, within fifteen (15) days, either accept the Title Defect as it then is or
refund the Escrow Deposit and interest and terminate this Agreement. If Seller, within the
time mutually agreed to (if and as extended), is unable or unwilling to cure, remove, or
correct a Title Defect that has not been waived by Purchaser, Seller shall promptly notify
Purchaser of that fact and the reason for it, and Purchaser may (a) elect to terminate the
transaction; (b) postpone the Closing Date for up to thirty (30) days and either allow Seller
to continue to try to cure, remove or correct the Title Defect, or attempt at its expense, to
cure, remove or correct the Title Defect. If the Seller is unable to cure the Title Defect,
Purchase may either accept the Title Defect as it then is or demand a refund of its Escrow
Deposit and interest and terminate this Agreement.
After issuance of the Title Commitment to the date of Closing, Seller shall not
in any manner encumber title, create any liens or place any mortgagees) on the Property
or in any way alter the status of title.
5. INSPECTION PERIOD: Purchaser shall have an unconditional inspection
period of sixty (60) days from the Effective Date of this Agreement. Purchaser shall have
the right (and Seller shall provide reasonable access for such purposes) to have an
independent engineer and others of Purchaser's selection make inspections of the
Property. Seller shall provide such documentation as Purchaser may reasonably requestfif said documentation is available to Seller.
4
(a) Inspection Verification: Purchaser shall have the right to inspect the
Property, to conduct such topographical surveys, soil test borings and
other sub-surface tests, percolation tests, engineering and other
related developmental studies, tests and examinations thereof,
including but not limited to sewer or septic availability, as Purchaser
may desire in order to determine whether the Property is suitable for
Purchaser's intended use thereof. In connection with its inspection
of the Property, Purchaser shall (i) not damage the Property; (ii)
repair or restore at its expense any damage to the Property that is
caused by its agents or employees; and (iii) release and indemnify
and hold harmless Seller from all claims, actions, suits, damages and
expenses, including reasonable attorneys' fees, that are incurred by
Seller and arise out of Purchaser's inspection of the Property, by
Purchaser or any person Purchaser invites to inspect the Property, or
his or their agents, employees or subcontractors. If prior to the
Inspection Completion Date, Purchaser determines that the Property
does not conform to -Purchaser's intended use, or for any other
reason whatsoever, in Purchaser's sole discretion, Purchaser may
elect to cancel this Agreement upon written notice to Seller
whereupon the Escrow Agent shall return to the Purchaser the
Escrow Deposit(s) and all interest earned thereon, and this
Agreement shall thereupon be null and void.
6. CLOSING: This transaction shall be closed no later than 180 days after
expiration of the Inspection Period, predicated upon the Purchaser's securing permitting
as set forth in the subsection entitled "Permitting", to be extended by any extensions
thereof, and the closing shall be subject to the time periods set forth in Paragraph 10,
Permitting. The closing of the transaction contemplated by this Agreement is sometimes
herein referred to as the "Closing" and the date and time of the Closing is sometimes
herein referred to as the "Closing Date". The Closing shall take place at the offices of the
Seller's attorney or designated Title Agent. Purchaser may elect to close on any date prior
to the above date, upon fifteen (15) days prior written notice to Seller. In no event,
however, shall the closing take place any sooner than ninety (90) days from the date
Purchaser provides Seller of its intent to close, pursuant to Section 9 hereof, unless the
parties mutually agree to an earlier date. At the time of Closing, the Purchaser shall pay
to the Seller the balance due on account of the Purchase Price, and the Seller and
Purchaser, as applicable, shall execute the closing documents, and the Seller shall convey
the Property to the Purchaser by a Warranty Deed. In the event the closing does not
occur, the deposit money, interest and extension fees shall be governed by the provisions
of Paragraph 9, Permitting.
The parties agree that Purchaser shall have the right to have Seller convey
all or a portion of the site directly to any subsequent assignee or Purchaser (Subsequent
Purchaser), who acquires such right from the Purchaser. It is the intent of the Purchaser
to avoid the necessity and cost of a dual conveyance. A conveyance to a Subsequent
Purchaser shall not effect the terms of this Agreement in any way. At closing, any monies
5
due from Subsequent Purchr .~ -. 'r, if any, over and above the monje~ue Seller hereunder,
shall enure to the benefit of . .Jrchaser. Closing costs between ~ Iler and Subsequent
Purchaser shall be as set forth herein between Seller and Purchaser.
7. WARRANTIES AND REPRESENTATIONS: Seller, to the best of its
knowledge, hereby makes the following warranties, representations and covenants to
Purchaser:
(a) Marketable Title: Seller has good, marketable and insurable title to
the Property, free and clear of all mortgages (other than any existing
mortgagees) to be paid simultaneously with the closing by Seller
allocating the necessary funds from the closing proceeds to satisfy
the mortgagees)), liens, encumbrances, leases and tenancies (except
for the leases set forth in Paragraph 7(e) herein), security interests,
covenants, conditions, restrictions, rights-of-way, easements,
reservations, judgments, lis pendens and other matters affecting title,
except Permitted Exceptions.
(b) Pendino Litioation: There are no legal actions, suits or other legal or
administrative proceedings, including condemnation cases and
bankruptcy proceedings, pending or threatened, against the Property
and Seller is not aware of any facts which might result in any action,
suit or other proceeding against the property.
(c) Seller has the power and authority to enter into, deliver and perform
this Agreement, to execute and deliver all documents in and to the
Property, and to otherwise take all steps necessary to the
performance of the duties and obligations of Seller hereunder.
(d) Mechanic's Liens: There are no mechanic's or other type liens
against the Property, except as expressly allowed hereunder.
( e) Contracts: Seller warrants and represents to Purchaser that as of the
date of execution of the Agreement, there are no leases, options,
contracts or rights of any third parties affecting the Property in any
manner whatsoever, except those listed herein, to wit:
(i) Lease - Grooming by Holly - expiring April 30, 1999.
(ii) Lease - Professional Home Care, Inc. - expired October 31,
1998 (now month-ta-month).
(iii) Lease - Intercity Mortgage Brokers - expires April 30, 1999.
(iv) Oral month-ta-month lease with Phoenix Wreckingllndigo
Wrecking.
(v) Oral month-ta-month lease with Barnes Assurance Company.
6
Seller shall be obligated to remove these ter.ants prior to closing,
subject to the terms of Paragraph 9 herein.
(f) Access to Highways and Roads: The Property has full and free
access to and from publicly dedicated roadways which are located
contiguous and adjacent to the boundary line of the Property, and
Seller has no knowledge of any fact or condition which would result
in termination on diminution of such access.
8. CONDITIONS PRECEDENT: The following are conditions precedent to the
Purchaser's obligation to close this transaction.
(a) Water, sewer, storm drainage, electricity, gas and telephone utilities
shall be available for connection at the property line of the Property
and in such capacities, pressures and rates of flow as to adequately
provide for Purchaser's proposed plan of development without any
cost to Purchaser other than the usual connection fees and service
charges.
(b) On the date of Closing, no moratorium or proceeding shall be
pending or threatened affecting the availability at regular rates
and connection fees of sewer, water, electric, gas, telephone
or other utilities serving the Property.
(c) There shall be sufficient ingress and egress for pedestrian and
motor vehicular traffic to adequately provide for Purchaser's
proposed plan of development.
(d) No governmental restriction (including the concept of
"concurrency") shall be in effect, or anticipated to become
effective, which would impede or delay the immediate
development of the Property, or the immediate issuance of any
permit or license for the construction of improvements upon
the Property, in accordance with Purchaser's proposed use.
In the event any of the foregoing conditions precedent are not met or fulfilled
by the time provided for Closing, Purchaser shall have the option of: (i) waiving the
condition and closing, (ii) extending the Closing for a period not to exceed thirty (30) days,
during which time Seller shall attempt to fulfill such conditions, but without the obligation
to do so, and without any obligation to incur any expense to fulfill such conditions; or (iii)
canceling this Agreement by written notice to Seller and the Escrow Agent. in which event
all escrow deposits (including interest thereon) remaining after deducting the sums
provided for in Paragraph 10 of this Agreement shall be returned to Purchaser, whereupon
the parties shall be relieved of all further obligations hereunder.
9. EXISTING LEASES: The Seller warrants and represents to Purchaser that
as a condition of the closing, there will be no parties (tenants) in possession of any portion
of the Property at the time of Closing. Notwithstanding, Purchaser, upon receipt of all its
7
building permits, shall notify ~eller of its intent to close, at which tinl~ the deposit(s) shall
be non-refundable, unless the closing does not occur because of the default of Seller or
because Seller fails to remove all tenants within ninety (90) days from the date Purchaser
gives Seller written notice of its intent to close with a copy to Kevin La Montagne, Esquire,
as provided immediately below. Upon Purchaser notifying Seller of its intent to close, it
shall provide a proposed closing date no sooner than ninety (90) days from date of such
notice, unless the parties mutually agree to an earlier date.
Seller shall use all reasonable efforts to evict all tenants within ninety (90)
days of the date of notice from Purchaser. The costs of evictions, if any, shall be paid by
Seller. In the event the Tenants are not evicted or do not vacate, Purchaser shall receive
a refund of all deposit(s) interest and extension deposits, or Purchaser may, at its cost,
bring an action for eviction to remove any tenants in possession. The Closing shall be
extended to permit Purchaser to bring eviction action(s).
10. PERMITTING: Purchaser, within a period of 180 days, from the expiration
of the Inspection Period, shall have secured, at its cost, permits for the construction and
operation of, at Purchaser's option, a retail facility, all in accordance with Purchaser's
proposed plan of development. Permitting shall include, but not be limited to site plan
approval, approval of curb-cuts as required by Purchaser, concurrency, water and sewer
allocations, septic tank approval, if required, signage approval, and issuance of a building
permit for the construction and operation of the facility, by all governmental authorities
having jurisdiction over the Property. Purchaser shall pay all fees and cost including
plans, impact fees, etc. required to receive its building permits. Such Permitting shall be
final, non-appealable and without contingencies or conditions and acceptable to Purchaser
in Purchaser's discretion. Seller agrees to promptly execute any and all documents or
instruments as may be reasonably requested by Purchaser in order to effectuate the
Permitting and to cooperate with Purchaser in connection therewith. In the event the
permitting process as defined herein is not completed within the 180 days after the
expiration of the Inspection Period, Purchaser may extend the Permitting Period for up to
three (3) additional periods of thirty (30) days by giving written notice of each extension
period ("Extension Payments"), prior to the expiration of the Permitting Period or each
extension period, and delivering to Escrow Agent at the time of such notice, an additional
sum of $2,500 for each thirty (30) day extension period, which the parties agree shall be
paid to Seller to defray Sell's costs of carrying the property. In the event the transaction
is not closed due to Purchaser's inability to obtain the permitting, the Escrow Deposit(s)
remaining after deducting any sums paid to Seller, pursuant to this Paragraph 10, will be
refunded. The Extension Payment(s) referred to in this Paragraph will be retained by
Seller, unless the failure to close is due to the fault of Seller. At closing, Purchaser will
receive credit for all escrow deposits paid, but Extension Payments shall not be credited
against the Purchase Price. In the event Seller defaults under this Agreement, however,
Seller shall be obligated to return the Extension Payments to Purchaser. All Extension
Payments shall be paid directly to Seller by Purchaser.
8
Notwithstanding anything to the contrary else\Nhere in Lr1is Agreement, in the
event Purchaser does not terminate the Agreement within ninety (90) days from the
Effective Date, the Purchaser agrees that the Seller shall be paid from the Escrow
Deposit(s) to be disbursed by the Escrow Agent to the Seller at the times provided below,
the following sums:
(a) after ninety (90) days from the Effective Date, the sum of $5,000.00.
(b) after one hundred twenty (120) days from the Effective Date, an
additional sum of $5,000.00.
(c) Mer one hundred eighty (180) days from the Effective Date, an
additional sum of $10,000.00.
(d) The immediately foregoing sums, although paid prior to closing, will
be credited against the Purchase Price, at closing, in accordance with
Paragraph 3 hereof, but said sums shall be non-refundable as and
when paid from the Escrow Deposits. In the event of a default by
Seller, Seller shall repay any such sums to Purchaser.
11. SURVEY: Purchaser, at Purchaser's expense, shall secure within thirty (30)
days a survey from a registered Florida surveyor. Purchaser shall, within twenty (20) days
from receipt of the survey, notify Seller of its objection to any matter that is revealed by the
survey and this event shall be treated as a Title Defect, as set forth herein.
If Purchaser fails to notify Seller within the twenty (20) day time period of its
objection to a matter revealed by the survey, Purchaser will be deemed to have waived any
objection to the matter. If Purchaser timely objects to a matter revealed by the survey and
Seller fails to cure or correct it on or before the Closing Date, the title matter will constitute
a Title Defect, and all deposits and extension fees shall be refunded to Purchaser.
12. ENVIRONMENTAL: Purchaser, at its costs, shall secure within thirty (30)
days from the Effective Date, a Phase 1 Environmental Survey. In the event, any
Environmental Report indicates contamination or suspected contamination of the property,
Purchaser, shall notify Seller of such findings no later than forty-five (45) days from the
Effective Date, and in Purchaser's discretion, Purchaser shall have the right to cancel this
Agreement and receive a refund of all Escrow Deposits, including any interest accrued
thereon. '
In the event Purchaser desires to continue with the Agreement, Purchaser
shall within thirty (30) days from said notice to Seller, secure at its costs, a Phase /I
Environmental Survey. In the event this report indicates contamination or suspected
contamination, Purchaser may terminate the Agreement and receive a refund of all
deposits and any interest accrued thereon upon notification to Seller at that time.
Extension fees shall be retained by Seller, unless Seller defaults. There shall be no
obligation by Seller to secure a Phase /I Environmental Survey.
9
13. TRANSACTION DOCUMENTS: Seller's attorney, at Seller's cost, will
prepare all Transaction Documents. At the Closing, the Seller and, as applicable, the
Purchaser, shall executive the following Transaction Documents:
(a) Warranty Deed from Seller to Purchaser conveying the Property and
improvements free and clear of all encumbrances except for the
Permitted Exceptions (any existing mortgage encumbering the
property shall be satisfied by Seller simultaneously at the closing, at
cost of Seller);
(b) Mechanic's Lien Affidavit in the form customarily used by the title
insurance company;
(c) Non-Foreign Affidavit from appropriate parties;
(d) Internal Revenue SeNice Form 1099 concerning the Property;
(e) Closing Statement between Seller and Purchaser; and
(f) Any instruments required to correct Title Defects from Seller.
14. TRANSACTION EXPENSES: Purchaser shall pay the cost of the Title
Insurance Commitment and Title Insurance. Seller shall pay for state documentary
stamps, required to be affixed to the instrument of conveyance, cost of recording any
corrective instruments and the cost of recording the deed and any costs to satisfy any
existing mortgage on the property. Purchaser shall pay for the cost of surtax: on the deed.
15. CLOSING ADJUSTMENTS: The following items, to the extent that they
pertain to the Property and whether paid, prepaid, payable, accrued, or assessed, will be
prorated, adjusted and allowed on the Closing Date, with Seller responsible for, or entitled
to, the items before the Closing Date and Purchaser responsible for, or entitled to, the
items on and after the Closing Date: Ad valorem real property taxes will be Prorated
based on the number of days in the year before, and the number of days in the year on
and after, the Closing Date and based on the taxes assessed for the calendar year
(adjusted for any discounts allowed by law), unless the taxes for that year are
unascertainable on the Closing Date, in which case the prospective taxes will be estimated
and Prorated based on the tax bill for the year immediately preceding the closing and
adjustments, if any, will be made upon receipt of the actual tax bill for the year of closing.
Purchaser is responsible for paying any special assessments for public or municipal
improvements that are either certified, confirmed, or ratified as of the Closing Date or
substantially completed as of the Closing Date but not certified, confirmed, or ratified as
of then. Purchaser is responsible for paying any special assessments for public or
municipal improvements that are merely pending and are not certified, confirmed, ratified,
or substantially completed as of the Closing Date. Any net amount owed by Seller to
Purchaser as a result of reconciling the foregoing adjustments will be credited against the
cash balance due on the Closing Date for the Purchase Price of the Property that is
payable by Purchaser under this Agreement. Any net amount owed by Purchaser to Seller
10
as a result of reconciling the foregoing adjustments will be payable In full on the Closing
Date, in immediately available funds.
16. TITLE TO PROPERTY: RISK OF LOSS: Title to the Property and risk of
loss and damage to it by condemnation, eminent domain, or by casualty, whether or not
insured, will pass to Purchaser upon completion of the closing of the transaction
contemplated by this Agreement, but will remain with Seller until then, including any
condemnation award.
17. EVENTS OF DEFAULT. The occurrence of anyone of the following events
constitutes a "Default" under this Agreement by the party indicated:
(a) Purchaser Default: Purchaser fails to perform within the time
specified any of its obligations under this Agreement;
(b) Seller Default: Seller fails to perform within the time specified any of
its obligations under this Agreement.
18. REMEDIES ON DEFAULT: If a Default under this Agreement exists prior to
or on the Closing Date, the following remedies will be available to the exclusion of all other
rights or remedies and the appropriate party must elect one of the following:
(a) Purchaser's Default: If Purchaser Defaults under the terms of this
agreement, Seller may terminate this Agreement, and receive on
demand copies of all plans, drawings, specifications, contracts,
leases, approvals, permits and other documents relating to the site.
The actions set forth, shall be full settlement of all claims by Seller
against Purchaser and this Agreement shall be null and void. All
Escrow Deposit(s) and interest, shall be retained by Seller. Extension
Deposits shall be retained by Seller.
(b) Seller's Default: If Seller defaults under the terms of this Agreement,
Purchaser may terminate this Agreement and receive on demand
from the Escrow Agent, payment of the Escrow Deposit(s) and
extension fees, including interest, whereupon all rights and
obligations of the parties under this Agreement will terminate and
become void or Purchaser may seek or bring an action for the specific
performance of this Agreement. In addition, Purchaser shall have the
right to bring an action for specific performance.
19. NOTICES: Any notice given or made for any purpose under and pursuant
to this Agreement shall be valid if in writing and hand delivered, sent by facsimile or
registered or certified mail, return receipt requested, postage pre-paid or by recognized
overnight courier, addressed:
11
~-----_...,..-.__.._._--~----~--_.-._--_._.__.,--. --
if to the Seller: Mrs. Elizabeth Gill, Trustee
3001 Black Oak Court
Boynton Beach, Florida 33436-6604
Telephone: (561) 737-4273
with a copy to: Kevin La Montagne. Esquire
125 East Boynton Beach Boulevard
Boynton Beach, Florida 33435
Telephone: (561) 732-0100
Facsimile: (561) 732-0877
if to the Purchaser: Gary P. Eidelstein, President
Boynton/Federal Development, Inc.
2665 South Bayshore Drive, Suite 908
Miami, Florida 33133
Telephone: (305) 285-9595
Facsimile: (305) 285-1102
Either party may I at any time and from time-to-time, in the manner set forth for the
giving of notices, change the address designated in this paragraph.
20. ESCROW AGREEMENT: Any Escrow Agent receiving Escrow Deposit(s)
is authorized and agrees by acceptance thereof to deposit promptly and to hold same in
escrow and subject to clearance thereof to disburse same in accordance with terms and
conditions of this Agreement. In the event of doubt as to Escrow Agent's duties under the
provisions of this Agreement, the Escrow Agent may in its sole discretion, continue to hold
the subject matter of this escrow until the parties mutually agree to the disbursement
thereof, or until a judgment of a court of competent jurisdiction shall determine the rights
of the parties thereto, or Escrow Agent may deposit same with the Clerk of the Circuit
Court having jurisdiction of the dispute, and upon notifying all parties concerned of such
action, all liability on the part of he Escrow Agent shall fully terminate, except to the extent
of accounting for any items theretofore delivered out of escrow. In the event of any suit
between Purchaser and Seller wherein the Escrow Agent is made a party by virtue of
acting as an Escrow Agent hereunder, or in the event of any suit herein Escrow Agent
interpleads the subject matter of this escrow, the Agent shall be entitled to recover
reasonable attorney's fees and costs incurred, said fees and costs to be charged and
assessed as court costs in favor of the prevailing party. The Escrow Agent shall have
such responsibilities and obligation as are provided by this Agreement and by law.
21. MISCELLANEOUS:
(a) Amendment; Successors: An amendment or modification of this
Agreement or any provision of it will be valid and effective only if it is
in writing and signed by each party to this Agreement. This
Agreement inures to the benefit of, and is binding on, the respective
12
heirs, a.......ignees. successors, and personal ~presentatives of the
parties.
(b) Attorney Fees and Costs: In the event a party to this Agreement must
employ an attorney to enforce provisions hereof or to secure
performance by a defaulting party under the terms herein stated, the
prevailing party in any litigation arising therefrom shall be entitled to
an award of reasonable attorney's fees and taxable costs both at a
trial and the appellate levels incurred in and enforcing this Agreement
and/or securing performance of the terms herein stated.
(c) Entire Agreement: This Agreement constitutes the entire Agreement
between the parties hereto and that there are no agreements,
understandings, restrictions. warranties or representations, expressed
or implied, oral or written between the parties other than those herein
contained.
(d) Time of essence: Time is of the essence with respect to the
performance of the parties' respective obligations under this
Agreement.
In the event any due date occurs on a weekend or legal holiday, the
due date shall be extended to the next occurring business day.
(e) Counterpart Executions: This Agreement may be executed in tv\,o or
more counterparts. each of which shall be deemed an original, but all
of which together shall constitute but one instrument, and facsimile
transmissions shall be deemed originals.
(f) Section and other HeadinQs: Section, paragraph and other headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
(g) Severability: In case anyone or more provisions contained in this
Agreement shall, for any reason, be held invalid, illegal or un-
enforceable in any respect, such invalidity, illegality or un-
enforceability shall not effect any other provision herein and this
Agreement shall be construed as if such invalid, illegal or
unenforceable provision had not been contained herein.
(h) Waiver: No waiver hereunder of any condition or breach shall be
deemed to be a continuing waiver or a waiver of any subsequent
breach.
(i) Applicable Law: This Agreement is to be construed under the laws
of the State of Florida and venue shall lie in Palm Beach County,
Florida.
(j) Radon Gas: Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may
13
oJ........ '''1'-' ......1 I I
. .. . ..._ . .... . . .~ . . 'oJ' I . . .
- ; ......
. -- ".~. ".- ~.~.--~:~- ~-..: i
- - .~...--~
--. -...- -. -
..- . -'".'"
present health risks to persons who are exposed to it over time.
Levels of radon may be present in buildings. in Florida. Additional
information regarding radon and radon testing may be obtained from
your county public health unit. -
22. BBOKE~GE: The parties hereto represent to the other that there are no
brokers involved in this matter and that each party indemnifies .the other from any claim
'made:by any. br.ok~r. '
. . 23. ,PROGRESS REPO~TS: Purchaser ~hall 'keep' Seller ,and its attorney
apprIsed of its-prc;gres8 on a regular, periodic basls;- - '. '
IN WlTNESS'WHEREOF, the parties have caused this Agreement to be signed the
day and 'y~r indic8ted above.
WITNESSES:
~.tCr. .Jft4lil4
,/}/., ' ./
,re.....rvw'V' JY> I .~ "'Lc",.:.t~....;
" Seller"
ELIZABETH GILL, TRUSTEE
BY
.-.
Execution Date of Seller: ..). - I) - rj "-)
"Purchaser"
BOV~TONiFEqE~L DEVELOPMENT, INC.
a Flori_di:f~n)o~ation
BY: ~FrC~41~
Gary P. e elsteln, President
Execution Date of Purchaser: :::'-/1:,/ ......t?y
14
-..-----
ACKNru'fLEDGMENT BY ESCROW AGEN~
ESCROW AGENT, , hereby
acknowledges receipt of the Escrow Deposit(s) for the above agreement in the amount
of $10,000.00, this _ day of ,1999. In the event this Agreement is
terminated during the Inspection Period, the unilateral request of Purchaser shall be
sufficient to release the Escrow Deposit(s). The Escrow Agent may also release the sums
provided for in subparagraphs (a), (b), and (c) of Section 10 of the Sale and Purchase
Agreement upon the meeting of the terms of said Section 10, without needing to seek any
prior approval from the Purchaser.
"ESCROW AGENT"
KEVIN LA MONTAGNE, TRUST ACCOUNT
BY:
Kevin La Montagne
15
EXHIBIT "A"
LEGAL DESCRIPTION
Lots Three (3) to Six (6), inclusive, Block 8, ROBERTS ADDITION to Boynton, less the
East 35 feet of Lots Four (4) and Five (5), according to the Plat thereof on file in the office
of the Clerk of the Circuit Court in and for Palm Beach County, Florida, in Plat Book 1,
page 51.
contract\gi 115. spa \3/10/99
16
SALE AND PURCHASE AGREEMENT
THIS AGREEMENT made and entered into this 100'day of ~Cf( , 1999,
by and between B-4, a Florida partnership, hereinafter ("Seller"), and
BOYNTON/FEDERAL DEVELOPMENT, INC., a Florida corporation, hereinafter
("Purchaser"), or assigns.
WITNESSETH:
WHEREAS, Seller is the owner of property located just east of the existing Bud's
Chicken and Seafood Restaurant facility, Boynton Beach, Palm Beach County, Florida,
and Purchaser desires to purchase approximately 30,000 square feet (subject to survey)
of said property, legally described on Exhibit "A", attached hereto, hereinafter
("PROPERTY"); and
WHEREAS, Seller wishes to sell and Purchaser wishes to buy the Property upon
the terms, covenants and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the parties agree as follows:
1. DEFINITIONS: For purposes of this Agreement, the following terms shall
have the following meanings:
"Acceptable Title" means good, marketable, and insurable fee simple record
title to the Property, free and clear of all Title Defects, except for any
Permitted Exceptions and any special title matter to which Purchaser waives
objection.
"AQreement" means this Agreement for Sale and Purchase as originally
executed and as it may be amended in writing, from time-to-time as provided
herein.
"ClosinQ" means the execution and delivery of those documents, and the
payment of those funds required to be paid at the time and manner required
hereunder.
"Conditions Precedent" means those items, if any, which must be satisfied
prior to Closing in order to obligate the Purchaser to purchase and the Seller
to sell the Property under the terms and conditions hereinafter described.
"Escrow AQent" means the party, if applicable, who will hold the Escrow
Deposit in accordance with the terms of this Agreement.
contract\b-4. sp4 '3/8/99
"Escrow Deposit" means all funds delivered by Purchaser to Escrow Agent
or Seller in connection with this Agreement which serves as partial
consideration for Purchasers obligations hereunder.
"Effective Date" means the date when this Agreement is last signed by both
the Seller and Purchaser, and which date shall be evidenced by a written
confirmation.
"Inspection Period" means Purchaser shall have an unconditional inspection
period of ninety (gO) days from the Effective Date to conduct an inspection
at the Property and receive if desired a refund of its deposit and interest
during this period of time.
"Permitted Assiqns" means those parties to whom this Agreement may be
transferred without the prior written approval of Seller, as long as a majority
of the newPurchaser(s} are principals of Boynton/Federal Development, Inc.
"Permitted Exceptions" means the title exceptions set forth in Exhibit "B" of
the Title Commitment, which are acceptable to Purchaser, and which shall
be provided by Seller to Purchaser within twenty (20) days of the Effective
Date. Purchaser shall have thirty (30) days to review and accept or reject
same. If Purchaser does not accept the "exceptions", Purchaser shall be
entitled to an immediate refund of its deposit and interest, which shall be its
sole remedy. Permitted Exceptions shall specifically include (a) liens for
state, county, and municipal ad valorem real property taxes for the current
year (to be prorated); (b) liens for special assessments for public or
municipal improvements, vvhether pending, completed or certified, confirmed,
ratified, or otherwise due and payable; (c) easements for public utility
services and facilities that serve the Property or the improvements or are
located along and parallel to the front, rear, and side boundaries of the
Property and do not, in Purchaser's sole discretion, substantially impair,
prohibit, or interfere with the use of the Property; (d) easements,
reservations, and restrictions of record that are common to any plat or
subdivision of which the Property is a part, that are not in violation or
coupled with any reversionary or forfeiture provision, and that do not in
Purchaser's sole discretion, impair, prohibit, or interfere with the use and
occupancy of the Property; (e) claims for vendors', carriers', mechanic's,
materialmen's, and other similar liens arising from the Property, if each such
claim of lien is discharged by payment; and (f) any other lien, exception,
assessment, encumbrance, reservation, or restriction to which Purchaser
waives objection or that can be removed or satisfied by Seller on the Closing
Date.
2
"Pro-rated" means the allocation of an item of expense or income between
Seller and Purchaser based upon the percentage of the time period as to
which such item of expense or income relates as of Closing.
"Property" means the parcel of land that is legally described on Exhibit "A"
to this Agreement, together with all easements, tenements, hereditament,
and appurtenances on or to that land.
"Purchase Price" means the full consideration agreed to be paid by the
Purchaser to the Seller for the purchase of the Property. All sums refer to
the currency of the United States of America.
"Survey" means that certain survey to be prepared at the expense of
Purchaser, in accordance with this Agreement by a licensed surveyor and
certified to Purchaser.
"Title Defect" means a lien, defect, exception, encumbrance, restriction,
reservation, or imperfection in, to, or on the record title to the Property.
''Title Insurance" means the Title Insurance Commitments and Policy issued
by a recognized title company selected or approved by Purchaser in
accordance with the terms of this Agreement.
''Transaction Document" means this Agreement and all of the documents
required or contemplated in connection with the Closing of this transaction.
2. PROPERTY TO BE CONVEYED: Seller agrees to sell and convey to
Purchaser and Purchaser agrees to buy from Seller the Property, upon the terms and
conditions hereinafter set forth and subject to performance of all conditions of this
Agreement and performance by each party hereto of its respective obligation hereunder.
3. PURCHASE PRICE OF THE PROJECT: $260,000.00
PAYMENT:
(a) Escrow Deposit payable to Escrow Agent upon execution of this
Agreement by Purchaser to be placed in a interest bearing account
(to benefit Purchaser), which sum shall be a part of the Purchase
Price.
$5,000.00
3
(b) Mer expiration of the inspection period, in the event Purchaser elects
not to terminate this Agreement. Purchaser will deposit in escrow an
additional sum of $10,000.00 to be held in an interest bearing
account, to the benefit of Purchaser. which sum shall be a part of the
Purchase Price.
(c) Balance of $245,000.00 due in cash at Closing, subject to
adjustments and prorations as herein provided. less any security
deposits held in escrow.
4. TITLE EVIDENCE: Purchaser shall secure. at its sole expense, a Title
Insurance Commitment on the Property issued by a licensed Florida title insurer. Upon
recording of the deed to Purchaser, Purchaser at its expense, shall secure an Owner's
Policy of Title Insurance in the amount of the Purchase Price. insuring Purchaser's title to
the Property. Seller shall make available to Purchaser copies of any title v-.K:>rk in its
possession. Before the 20th day following Purchaser's receipt of the title insurance
commitment, Purchaser shall notify Seller of each exception or requirement for a Title
Defect that it considers to impair Acceptable Title to the Property and that it will not waive.
If Purchaser fails to notify Seller within the time period of its objection to a Title Defect(s),
Purchaser will be deemed to have waived the Title Defect. If Purchaser timely notifies
Seller of its objection to a Title Defect, Seller shall within the following fifteen (15) days
notify Purchaser whether Seller intends to cure, correct or remove a Title Defect.
Purchaser and Seller hereby agree that Seller shall not be obligated to cure any Title
Defect and may by written notice to Purchaser waive any curative period and thereby
require Purchaser to, within fifteen (15) days, either accept the Title Defect as it then is or
refund the Escrow Deposit and interest and terminate this Agreement. If Seller, within the
time mutually agreed to (if and as extended), is unable or unwilling to cure, remove, or
correct a Title Defect that has not been waived by Purchaser, Seller shall promptly notify
Purchaser of that fact and the reason for it, and Purchaser may (a) elect to terminate the
transaction; (b) postpone the Closing Date for up to thirty (30) days and either allow Seller
to continue to try to cure. remove or correct the Title Defect, or attempt at its expense, to
cure. remove or correct the Title Defect. If the Seller is unable to cure the Title Defect,
Purchase may either accept the Title Defect as it then is or demand a refund of its Escrow
Deposit and interest and terminate this Agreement.
After issuance of the Title Commitment to the date of Closing, Seller shall not
in any manner encumber title, create any liens or place any mortgage(s) on the Property
or in any way alter the status of title.
5. INSPECTION PERIOD: Purchaser shall have an unconditional inspection
period of ninety (90) days from the Effective Date of this Agreement. Purchaser shall have
the right (and Seller shall provide reasonable access for such purposes) to have an
independent engineer and others of Purchaser's selection make inspections of the
Property. Seller shall provide such documentation as Purchaser may reasonably request
if said documentation is available to Seller.
4
(a) Inspection Verification: Purchaser shall have the right to inspect the
Property. to conduct such topographical sUNeys, soil test borings and
other sub-surface tests, percolation tests, engineering and other
related developmental studies, tests and examinations thereof.
including but not limited to sewer or septic availability, as Purchaser
may desire in order to determine whether the Property is suitable for
Purchaser's intended use thereof. In connection with its inspection
of the Property, Purchaser shall (i) not damage the Property; (ii)
repair or restore at its expense any damage to the Property that is
caused by its agents or employees; and (iii) release and indemnify
and hold harmless Seller from all claims, actions. suits, damages and
expenses. including reasonable attorneys' fees, that are incurred by
Seller and arise out of Purchaser's inspection of the Property. by
Purchaser or any person Purchaser invites to inspect the Property, or
his or their agents, employees or subcontractors. If prior to the
Inspection Completion Date, Purchaser determines that the Property
does not conform to Purchaser's intended use. or for any other
reason whatsoever, in Purchaser's sole discretion. Purchaser may
elect to cancel this Agreement upon written notice to Seller
whereupon the Escrow Agent shall return to the Purchaser the
Escrow Deposit(s) and all interest earned thereon, and this
Agreement shall thereupon be null and void.
(b) During the Inspection Period, Purchaser and Seller shall agree on (i)
legal description of the Property; (ii) any required cross-easements;
(iii) any easements over the Property to be reseNed by Seller to
seNe the "Adjoining Property" to be retained by Seller; and (iv) any
landscaping, buffering or similar requirements to be imposed on the
Property and the Adjoining Property. If Purchaser and Seller do not
agree on all of such matters, either party may terminate this
Agreement, in which event the Deposit shall be returned to Buyer.
Without limiting the generality of the foregoing, it is Seller's intent that
Purchaser bear all costs of relocation of utilities and that such
relocation shall be undertaken and completed with minimal disruption
of Seller's business.
6. CLOSING: This transaction shall be closed no later than 180 days after
expiration of the Inspection Period. predicated upon the Purchaser's securing permitting
as set forth in the subsection entitled "Permitting", to be extended by any extensions
thereof, and the closing shall be subject to the time periods set forth in Paragraph 9,
Permitting. The closing of the transaction contemplated by this Agreement is sometimes
herein referred to as the "Closing" and the date and time of the Closing is sometimes
herein referred to as the "Closing Date". The Closing shall take place at the offices of the
Seller's attorney or designated Title Agent. Purchaser may elect to close on any date prior
to the above date, upon fifteen (15) days prior written notice to Seller. At the time of
Closing, the Purchaser shall pay to the Seller the balance due on account of the Purchase
5
Price, and the Seller and Purchaser, as applicable, shall execute the closing documents,
and the Seller shall convey the Property to the Purchaser by a Warranty Deed. In the
event the closing does not occur, the deposit money, interest and extension fees shall be
governed by the provisions of Paragraph 9, Permitting.
The parties agree that Purchaser shall have the right to have Seller convey
all or a portion of the site directly to any subsequent assignee or Purchaser (Subsequent
Purchaser), who acquires such right from the Purchaser. It is the intent of the Purchaser
to avoid the necessity and cost of a dual conveyance. A conveyance to a Subsequent
Purchaser shall not effect the terms of this Agreement in any way. At closing, any monies
due from Subsequent Purchaser, if any, over and above the monies due Seller hereunder,
shall enure to the benefit of Purchaser. Closing costs between Seller and Subsequent
Purchaser shall be as set forth herein between Seller and Purchaser.
7. WARRANTIES AND REPRESENTATIONS: Seller, to the best of its
knowledge, hereby makes the following warranties, representations and covenants to
Purchaser which warranties, representations and covenants shall survive the closing.
(a) Marketable Title: Seller has fee simple title to the property.
(b) Pendino Litioation: There are no legal actions, suits or other legal or
administrative proceedings, including condemnation cases and
bankruptcy proceedings, pending or threatened, against the Property
and Seller is not aware of any facts which might result in any action,
suit or other proceeding against the property.
(c) Seller has the power and authority to enter into, deliver and perform
this Agreement, to execute and deliver all documents in and to the
Property, and to otherwise take all steps necessary to the
performance of the duties and obligations of Seller hereunder.
(d) Mechanic's Liens: There are no mechanic's or other type liens
against the Property, except as expressly allowed hereunder.
( e) Contracts: Seller warrants and represents to Purchaser that as of the
date of execution of the Agreement, there are no leases, options,
contracts or rights of any third parties affecting the Property in any
manner whatsoever.
(f) There are no restriction or covenants prohibiting Purchaser's
intended us of the Property.
(g) Hazardous Wastes: To the best of Seller's knowledge, there are no
hazardous substances as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 USC 9601 (14), pollutants or contaminants as
6
defined in the Resource Conservation and Recovery Act ("RC RAil) ,
42 USC 6903 (5), or other similar applicable federal or state laws and
regulations, including, but not limited to, asbestos, PCBs and urea
formaldehyde, generated, released, stored, or deposited over,
beneath or on the Property or on or in any structures located on the
Property from any source whatsoever by Seller, its predecessors in
interest in the Property or any other person. This warranty shall
survive closing.
This representation shall survive the Closing, and Purchaser shall
have the right to terminate this Agreement at any time during the
Inspection Period, or to the date of Closing, in the event Purchaser
discovers that the site was, or is suspected of being environmentally
contaminated, at or prior to the ,Closing. If this occurs, Purchaser
shall receive a refund of all deposits and interest including extension
deposits.
In the event any of the foregoing warranties or representations are not
fulfilled at, or at any time prior to Closing, Purchaser shall have the option of: (i) waiving
the condition and closing, (ii) extending the Closing for a period not to exceed thirty (30)
days, during which time Seller shall have the obligation of attempting to fulfill such
conditions; or (iii) canceling this Agreement by written notice to Seller and the Escrow
Agent, in which event all escrow deposits including extension deposits, made hereunder,
together with all interest, shall be returned to Purchaser, whereupon the parties shall be
relieved from all further obligations hereunder.
8. EXISTING LEASES: The Seller warrants and represents to Purchaser that
as a condition of the closing, there will be no parties (tenants) in possession of any portion
of the Property at the time of Closing.
9. PERMITTING: Purchaser, within a period of 180 days, from the expiration
of the Inspection Period, shall have secured, at its cost, permits for the construction and
operation of, at Purchaser's option, a retail facility, all in accordance with Purchaser's
proposed plan of development. Permitting shall include, but not be limited to site plan
approval, approval of curb-cuts as required by Purchaser, concurrency, water and sewer
allocations, septic tank approval, if required, signage approval, and issuance of a building
permit for the construction and operation of the facility, by all governmental authorities
having jurisdiction over the Property. Purchaser shall pay all fees and cost including
plans, impact fees, etc. required to receive its building permits. Such Permitting shall be
final, non-appealable and without contingencies or conditions and acceptable to Purchaser
in Purchaser's discretion. Seller agrees to promptly execute any and all documents or
instruments as may be reasonably requested by Purchaser in order to effectuate the
Permitting and to cooperate with Purchaser in connection therewith. In the event the
permitting process as defined herein is not completed within the 180 days after the
Effective Date, Purchaser may extend the Permitting Period for up to three (3) additional
periods of thirty (30) days by giving written notice of each extension to Seller prior to the
7
expiration of the Permitting Period or each extension period, and delivering to Escrow
Agent at time of such notice an additional sum of $2,500.00 for each thirty (30) day
extension period ("Extension Deposits", which shall be a cost of carrying the property. In
the event the transaction is not closed due to Purchaser's inability to obtain the permitting,
the deposit(s) will be refunded; however, the extension deposit(s) will be retained by
Seller, unless the failure to close is due to the fault of Seller. Purchaser agrees that
extension deposit(s) shall not be applicable to the Purchase Price.
It is understood and agreed that during the Permitting process, the
governmental authorities may impose certain requirements for the development of the
Property, which adversely effect the Adjoining Property. It is the intent of the parties that
Seller's continued use and enjoyment of the Adjoining Property shall not be adversely
affected by the Permitting requirements. If Seller objects to any Permitting requirements
and Purchaser is not able to satisfy any such objection, in the sole discretion of Seller, this
Agreement shall terminate and all deposits (except any Extension Deposits) shall be
returned to Purchaser.
If any matters agreed to during the Inspection Period, as set forth in
Paragraph 5 above, are subject to change during the Permitting process, the adversely
effected party may terminate the Agreement in which event all deposits (except the
Extension Deposits) shall be returned to Purchaser. Purchaser shall not make any
agreement which adversely affects the Adjoining Property without the prior written consent
of Seller, which consent of Seller, which consent shall be in the sole discretion of Seller.
Notwithstanding the foregoing or anything to the contrary elsewhere in the
Agreement, if Permitting (site plan, signage, issuance of all building permits, curb-cuts,
water and sewer availability, concurrency, etc.) has not been effectuated at anytime within
the Permitting Period (or any extension thereof), or if Purchaser determines in its sole
discretion, not to pursue permitting, either during the Permitting Period, or any extension,
Purchaser may terminate the Agreement and receive a full refund of all Escrow Deposit(s)
and interest; however, all Extension Deposits shall be retained by Seller.
10. SURVEY: Purchaser, at Purchaser's expense, shall secure a survey from a
registered Florida surveyor. Purchaser shall, within twenty (20) days from receipt of the
survey, notify Seller of its objection to any matter that is revealed by the survey and this
event shall be treated as a Title Defect, as set forth herein.
If Purchaser fails to notify Seller within the twenty (20) day time period of its
objection to a matter revealed by the survey, Purchaser will be deemed to have waived any
objection to the matter. If Purchaser timely objects to a matter revealed by the survey and
Seller fails to cure or correct it on or before the Closing Date, the title matter will constitute
a Title Defect, and all deposits and extension fees shall be refunded to Purchaser.
8
11. ENVIRONMENTAL: Purchaser, at its costs, shall secure a Phase 1
Environmental Survey. In the event, any Environmental Report indicates contamination
or suspected contamination of the property, Purchaser shall, notify Seller of the findings,
and in its discretion, Purchaser shall have the right to cancel this Agreement and receive
a full refund of all deposits including extension deposits and interest.
In the event Purchaser desires to continue with the Agreement, Purchaser,
in its sole discretion, at its cost, may secure a Phase II Environmental Survey. In the event
this report indicates contamination or suspected contamination, Purchaser may terminate
the Agreement and receive a refund of all deposits and interest including any extension
deposits and interest.
12. TRANSACTION DOCUMENTS: Seller's attorney, at Seller's cost, will
prepare all Transaction Documents. At the Closing" the Seller and, as applicable, the
Purchaser, shall executive the following Transaction Documents:
(a) Special Warranty Deed from Seller to Purchaser conveying the
Property and improvements free and clear of all encumbrances
except for the Permitted Exceptions (any existing mortgage
encumbering the property shall be satisfied by Seller simultaneously
at the closing, at cost of Seller);
(b) Mechanic's Lien Affidavit in the form customarily used by the title
insurance company;
(c) Non-Foreign Affidavit from appropriate parties;
(d) Internal Revenue Service Form 1099 concerning the Property;
(e) Closing Statement between Seller and Purchaser; and
(f) Any instruments required to correct Title Defects from Seller.
13. TRANSACTION EXPENSES: Purchaser shall pay the cost of the Title
Insurance Commitment and Title Insurance. Seller shall pay for state documentary
stamps, required to be affixed to the instrument of conveyance, cost of recording any
corrective instruments and the cost of recording the deed and any costs to satisfy any
existing mortgage on the property. Purchaser shall pay for the cost of surtax on the deed.
14. CLOSING ADJUSTMENTS: The following items, to the extent that they
pertain to the Property and whether paid, prepaid, payable, accrued, or assessed, will be
prorated, adjusted and allowed on the Closing Date, with Seller responsible for, or entitled
to, the items before the Closing Date and Purchaser responsible for, or entitled to, the
items on and after the Closing Date: Ad valorem real property taxes will be Prorated
based on the number of days in the year before, and the number of days in the year on
and after, the Closing Date and based on the taxes assessed for the calendar year
9
(adjusted for any discounts allowed by law), unless the taxes for that year are
unascertainable on the Closing Date, in which case the prospective taxes will be estimated
and Prorated based on the tax bill for the year immediately preceding the closing and
adjustments, if any, will be made upon receipt of the actual tax bill for the year of closing.
Purchaser is responsible for paying any special assessments for public or municipal
improvements that are either certified, confirmed, or ratified as of the Closing Date or
substantially completed as of the Closing Date but not certified, confirmed, or ratified as
of then. Purchaser is responsible for paying any special assessments for public or
municipal improvements that are merely pending and are not certified, confirmed, ratified,
or substantially completed as of the Closing Date. Any net amount owed by Seller to
Purchaser as a result of reconciling the foregoing adjustments will be credited against the
cash balance due on the Closing Date for the Purchase Price of the Property that is
payable by Purchaser under this Agreement. Any net amount owed by Purchaser to Seller
as a result of reconciling the foregoing adjustments will be payable in full on the Closing
Date, in immediately available funds.
15. TITLE TO PROPERTY; RISK OF LOSS: Title to the Property and risk of
loss and damage to it by condemnation, eminent domain, or by casualty, whether or not
insured, will pass to Purchaser upon completion of the closing of the transaction
contemplated by this Agreement, but will remain with Seller until then, including any
condemnation award.
16. EVENTS OF DEFAULT. The occurrence of anyone of the following events
constitutes a "Default" under this Agreement by the party indicated:
(a) Purchaser Default: Purchaser fails to perform within the time
specified any of its obligations under this Agreement;
(b) Seller Default: Seller fails to perform within the time specified any of
its obligations under this Agreement.
17. REMEDIES ON DEFAULT: If a Default under this Agreement exists prior to
or on the Closing Date, the following remedies will be available to the exclusion of all other
rights or remedies and the appropriate party must elect one of the following:
(a) Purchaser's Default: If Purchaser Defaults under the terms of this
agreement, Seller may terminate this Agreement, and receive on
demand copies of all plans, drawings, specifications, contracts,
leases, approvals, permits and other documents relating to the site.
The actions set forth, shall be full settlement of all claims by Seller
against Purchaser and this Agreement shall be null and void. All
Escrow Deposit(s) and interest, shall be retained by Seller. Extension
Deposits shall be retained by Seller.
(b) Seller's Default: If Seller defaults under the terms of this Agreement,
Purchaser may terminate this Agreement and receive on demand
from the Escrow Agent, payment of the Escrow Deposit(s) and
10
extension fees, including interest, whereupon all rights and
obligations of the parties under this Agreement will terminate and
become void or Purchaser may seek or bring an action for the specific
performance of this Agreement.
18. NOTICES: Any notice given or made for any purpose under and pursuant
to this Agreement shall be valid if in writing and hand delivered, sent by facsimile or
registered or certified mail, return receipt requested, postage pre-paid or by recognized
overnight courier, addressed:
if to the Seller: Mr. Mark Brinkman
B-4, a Florida partnership
518 Industrial Avenue, Suite 12
Boynton Beach, Florida 33426-3664
Telephone: (561) 736-3344
Facsimile: (561) 736-5205
with a copy to: David Shaw, Esquire
Fleming, Hail & Shaw, P.A.
440 Royal Palm Way, Suite 100
Palm Beach, Florida 33480
Telephone: (561) 833-5600
Facsimile: (561) 833-5604
if to the Purchaser: Gary P. Eidelstein, President
Boynton/Federal Development, Inc.
2665 South Bayshore Drive, Suite 908
Miami, Florida 33133
Telephone: (305) 285-9595
Facsimile: (305) 285-1102
Either party may, at any time and from time-te-time, in the manner set forth for the
giving of notices, change the address designated in this paragraph.
19. ESCROW AGREEMENT: Any Escrow Agent receiving Escrow Deposit{s)
is authorized and agrees by acceptance thereof to deposit promptly and to hold same in
escrow and subject to clearance thereof to disburse same in accordance with terms and
conditions of this Agreement. In the event of doubt as to Escrow Agent's duties under the
provisions of this Agreement, the Escrow Agent may in its sole discretion, continue to hold
the subject matter of this escrow until the parties mutually agree to the disbursement
thereof, or until a judgment of a court of competent jurisdiction shall determine the rights
of the parties thereto, or Escrow Agent may deposit same with the Clerk of the Circuit
Court having jurisdiction of the dispute, and upon notifying all parties concerned of such
action, all liability on the part of he Escrow Agent shall fully terminate, except to the extent
of accounting for any items theretofore delivered out of escrow. If escrow Agent is a
licensed real estate broker, the Escrow Agent will comply with provisions of Chapter 475,
F.S., as amended. In the event of any suit between Purchaser and Seller wherein the
11
Escrow Agent is made a party by virtue of acting as an Escrow Agent hereunder, or in the
event of any suit herein Escrow Agent interpleads the subject matter of this escrow, the
Agent shall be entitled to recover reasonable attorney's fees and costs incurred, said fees
and costs to be charged and assessed as court costs in favor of the prevailing party. All
parties agree that the Escrow Agent shall not be liable to any party or person whomsoever
for mis-delivery to Purchaser or Seller of items subject to its escrow, unless such mis-
delivery shall be due to the willful breach of this Agreement or gross negligence of the part
of the Agent. The parties hereby agree, that the Escrow Agent is authorized to represent
Seller herein.
20. MISCELLANEOUS:
(a) Amendment; Successors: An amendment or modification of this
Agreement or any provision of it will be valid and effective only if it is
in writing and signed by each party to this Agreement. This
Agreement inures to the benefit of, and is binding on, the respective
heirs, assignees, successors, and personal representatives of the
parties.
(b) Attorney Fees and Costs: In the event a party to this Agreement must
employ an attorney to enforce provisions hereof or to secure
performance by a defaulting party under the terms herein stated, the
prevailing party in any litigation arising therefrom shall be entitled to
an award of reasonable attorney's fees and taxable costs both at a
trial and the appellate levels incurred in and enforcing this Agreement
and/or securing performance of the terms herein stated.
(c) Entire Aqreement: This Agreement constitutes the entire Agreement
between the parties hereto and that there are no agreements,
understandings, restrictions, warranties or representations, expressed
or implied, oral or written between the parties other than those herein
contained.
(d) Time of essence: Time is of the essence with respect to the
performance of the parties' respective obligations under this
Agreement.
In the event any due date occurs on a weekend or legal holiday, the
due date shall be extended to the next occurring business day.
(e) Counterpart Executions: This Agreement may be executed in t\M:) or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute but one instrument, and facsimile
transmissions shall be deemed originals.
12
(f) Section al,,,,, other Headings: Section, paragraJJ.. .::lnd other headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
(g) Severability: In case anyone or more provisions contained in this
Agreement shall, for any reason, be held invalid, illegal or un-
enforceable in any respect, such invalidity, illegality or un-
enforceability shall not effect any other provision herein and this
Agreement shall be construed as if such invalid, illegal or
unenforceable provision had not been contained herein.
(h) Waiver: No waiver hereunder of any condition or breach shall be
deemed to be a continuing waiver or a waiver of any subsequent
breach.
(i) Applicable Law: This Agreement is to be construed under the laws
of the State of Florida and venue shall lie in Palm Beach County,
Florida.
(j) Radon Gas: Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time.
Levels of radon may be present in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from
your county public health unit.
21. BROKERAGE: None.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed the
day and year indicated above.
WITNESSES:
ffJl/f'a
-~L~
"Seller"
B-4, a'i)O;ida partnership
BY: /!l/\.jZ
Execution Date of Seller:
"Purchaser"
BOYNTON/FEDERAL DEVELOPMENT, INC.,
a Florida corporation
BY: J!!:il.t-/ ,~:Ch!/d;irr
Gary P. Eidelstein, President
Execution Date of Purchaser: 3 - 1'-l7</
13
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SALE AND PURCHASE AGREEMENT
THIS AGREEMENT made and entered into this 1., 8 day of tk ,1999,
by and between 303 FEDERAL, INC., a Florida corporation, hereinafter ("Seller"), and
BOYNTONI FEDERAL DEVELOPMENT, INC" a Florida corporation, hereinafter
("Purchaser"), or assigns.
.: .
WITNESSETH:
WHEREAS, Seller is the owner of property located at 303 North Federal Highway,
Boynton Beach, Palm Beach County, Florida, and Purchaser desires to purchase
approximately 18,200 square feet of said property, legally described on Exhibit "A",
attached hereto, herein'after ("PROPERTY"); and
WHEREAS, Seller wishes to sell and Purchaser wishes to buy the Property upon
the terms, covenants and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
for other good and valuable consideration, the parties agree as follows:
1. DEFINITIONS: For purposes of this Agreement, the following terms shall
have the following meanings:
"Acceptable Title" means good, marketable, and insurable fee simple record
title to the Property, free and clear of all Title Defects, except for any
Permitted Exceptions and any special title matter to which Purchaser waives
objection. '
"Agreement" means this Agreement for Sale and Purchase as originally
executed and as it may be amended in writing, from time-to-time as provided
herein.
"Closing" means the execution and delivery of those documents, and the
payment of those funds required to be paid at the time and manner required
hereunder.
"Conditions Precedent" means those items, if any, which must be satisfied
prior to Closing in order to obligate the Purchaser to purchase and the Seller
to sell the Property under the terms and conditions hereinafter described.
"Escrow Agent" means the party, if applicable, who will hold the Escrow
Deposit in accordance with the terms of this Agreement. The parties hereby
designate James M. Painter, P.A., as the Escrow Agent.
contracl\303 federaI5.spa\2/17/99
"Escrow Deposit" means all funds delivered by Purchaser to Escrow Agent
or Seller in connection with this Agreement which serves as partial
consideration for Purchasers obligations hereunder.
"Effective Date" means the date when this Agreement is last signed by both
the Seller and Purchaser, and which date shall be evidenced by a written
confirmation.
-: .
"Inspection Period" means Purchaser shall have an unconditional inspection
period of ninety (90) days from the Effective Date to conduct an inspection
at the Property and receive if desired a refund of its deposit and interest
during this period of time. ,
"Permitted Assigns" means those parties to whom this Agreement may be
transferred without the prior written approval of Seller, as long as a majority
of the new Purchaser(s) are principals of Universal Realty & Development,
Inc.
"Permitted Exceptions" means the title exceptions set forth in Exhibit "B" of
the Title Commitment, which are acceptable to Purchaser, and which shall
be provided by Seller to Purchaser within twenty (20) days of the Effective
Date. Purchaser shall have thirty (30) days to review and accept or reject
same. If Purchaser does not accept the "exceptions'" Purchaser shall be
entitled to an immediate refund of its deposit and interest, which shall be its
sole remedy. Permitted Exceptions shall specifically include (a) liens for
state, county, and municipal ad valorem real property taxes for the current
year (to be prorated); (b) liens for special assessments for public or
municipal improvements, whether pending, completed or certified, confirmed,
ratified, or otherwise due and payable; (c) easements for public utility
services and facilities that serve the Property or the improvements or are
located along and parallel to the front, rear, and side boundaries of the
Property and do not, in Purchaser's sole discretion, substantially impair,
prohibit, or interfere with the use of the Property; (d) easements,
reservations, and restrictions of record that are common to any plat or
subdivision of which the Property is a part; that are not in violation or coupled
with any reversionary or forfeiture provision, and that do not in Purchaser's
sole discretion, impair, prohibit, or interfere with the use and occupancy of
the Property; (e) claims for vendors', carriers', mechanic's, materialmen's,
and other similar liens arising from the Property, if each such claim of lien is
discharged by payment; and (f) any other lien, exception, assessment,
encumbrance, reservation, or restriction to which Purchaser waives objection
or that can be removed or satisfied by Seller on the Closing Date.
2
tlPro-ratedtl mc.....ls the allocation of an item of expb, ._~ or income between
Seller and Purchaser based upon the percentage of the time period as to
which such item of expense or income relates as of Closing. '
tlPropertytl means the parcel of land that is legally described on Exhibit tlA"
to this Agreement, together with all easements, tenements, hereditament,
and appurtenances on or to that land.
tlPurchase Pricetl means the full consideration agreed to be paid by the
Purchaser to the Seller for the purchase of the Property. All sums refer to
the currency of the United States of America.
"'
tlSurvey" means that certain survey to be prepared at the expense of Seller,
in accordance with this Agreement by a licensed surveyor and certified to
Purchaser.
tlTitle Defect" means a lien, defect, exception, encumbrance, restriction,
reservation, or imperfection in, to, or on'the record title to the Property.
tlTitle Insurance" means the Title Insurance Commitments and Policy issued
'by a recognized title company selected or approved by Purchaser in
accordance with the terms of this Agreement.
'Transaction Documenttl means this Agreement and all of the documents
required or contemplated in connection with the Closing of this transaction.
2. PROPERTY TO BE CONVEYED: Seller agrees to sell and convey to
Purchaser and Purchaser agrees to buy from Seller the Property, upon the terms and
conditions hereinafter set forth and subject to performance of all conditions of this
Agreement and performance by each party hereto of its respective obligation hereunder.
3. PURCHASE PRICE OF THE PROJECT: $420,000.00
PAYMENT:
(a) Escrow Deposit payable to Escrow Agent upon execution of this
Agreement by Purchaser to be placed in a interest bearing account
(to benefit Purchaser), which sum shall be a part of the Purchase
Price.
$10,000.00
(b) After expiration of the inspection period, in the event Purchaser elects
not to terminate this Agreement, Purchaser will deposit in escrow an
additional sum of $32,000.00 to be held in an interest bearing
, account, to the benefit of Purchaser, (except as otherwise provided
herein), which sum shall be a part of the Purchase Price.
3
(c) Balance of $378,000.00 due in cash Cll Closing, subject to
adjustments and prorations as herein provided, less any security
deposits held in escrow.
4. TITLE EVIDENCE: Seller shall secure for Purchaser, at Purchaser's
expense, a pro-forma title commitment (unsigned, as identical to the Title Policy to be
signed at closing). The cost of the pro-forma title commitment shall not exceed $175.00.
The Title Policy to be issued, at closing, shall be at the promulgated rate. Upon recording
of the deed to Purchaser, Seller shall, at Purchaser's at its expense, secure an Owner's
Policy of Title Insurance in the amount of the Purchase Price, insuring Purchaser's title to
the Property. Seller shall make available to Purchaser copies of any title work in its
p6ssession. Before the 20th day following Purchaser's receipt of the title insurance
commitment, Purchaser shall notify Seller of each exception or requirement for a Title
Defect that it considers to impair Acceptable Title to the Property and that it will not waive.
If Purchaser fails to notify Seller within the time period of its objection to a Title Defect(s),
Purchaser will be deemed to have waived the Title Defect. If Purchaser timely notifies
Seller of its objection to a Title Defect, Seller shall within the following fifteen (15) days
notify Purchaser whether Seller intends to cure; correct or remove a Title Defect.
Purchaser and Seller hereby agree that Seller shall not be obligated to cure any Title
Defect and may by written notice to Purchaser waive any curative period and thereby
require Purchaser to, within fifteen (15) days, either accept the Title Defect as it then is or
refund the Escrow Deposit and interest and terminate this Agreement. If Seller, within the
time mutually agreed to (if and as extended), is unable or unwilling to cure, remove, or
correct a Title Defect that has not been waived by Purchaser, Seller shall promptly notify
Purchaser of that fact and the reason for it, and Purchaser may (a) elect to terminate the
transaction; (b) postpone the Closing Date for up to thirty (30) days and either allow Seller
to continue to try to cure, remove or correct the Title Defect, or attempt at its expense, to
cure, remove or correct the Title Defect. If the Seller is unable to cure the Title Defect,
Purchase may either accept the Title Defect as it then is or demand a refund of its Escrow
Deposit and interest and terminate this Agreement.
After issuance of the Title Commitment to the date of Closing, Seller shall not
in any manner encumber title, create any liens or place any mortgage(s) on the Property
or in any way alter the status of title.
5. INSPECTION PERIOD: Purchaser shall have an unconditional Inspection
Period of sixty (60) days from the Effective Date of this Agreement. Purchaser shall have
the right (and Seller shall provide reasonable access for such purposes) to have an
independent engineer and others of Purchaser's selection make inspections of the
Property. Seller shall provide such documentation as Purchaser may reasonably request
if said documentation is available to Seller.
4
(a) Inspecl.L..1 Verification: Purchaser shall havt, _..e right to inspect the
Property, to conduct such topographical surveys, soil test borings and
other sub-surface tests, percolation tests, engineering and other
related developmental studies, tests and examinations thereof,
including but not limited to sewer or septic availability, as Purchaser
may desire in order to determine whether the Property is suitable for
Purchaser's intended use thereof. In connection with its inspection of
the Property, Purchaser shall (i) not damage the Property; (ii) repair
or restore at its expense any damage to the Property that is caused
by its agents or employees; and (iii) release and indemnify and hold
harmless Seller from all claims, actions, suits, damages and
expenses, including reasonable attorneys' fees, that are incurred by
Seller and arise out of Purchaser's inspection of the Property, by
Purchaser or any person Purchaser invites to inspect the Property, or
his or their agents, employees or subcontractors. If prior to the
Inspection Completion Date, Purchaser determines that the Property
does not conform to Purchaser's intended use, or for any other
reason whatsoever, in Purchaser's sole discretion, Purchaser may
elect to cancel this Agreement upon written notice to Seller
whereupon the Escrow Agent shall return to the Purchaser the
Escrow Deposit(s) and all interest earned thereon, and this
Agreement shall thereupon be null and void.
6. CLOSING: This transaction shall be closed no later than 150 days after
expiration of the Inspection Period, predicated upon the Purchaser's securing permitting
as set forth in the subsection entitled "Permitting", to be extended by any extensions
thereof, and the closing shall be subject to the time periods set forth in Paragraph 9,
Permitting. The closing of the transaction contemplated by this Agreement is sometimes
herein referred to as the "Closing" and the date'and time of the Closing is sometimes
herein referred to as the "Closing Date". The Closing shall take place at the offices of the
Seller's attorney or designated Title Agent. Purchaser may elect to close on any date prior
to the above date, upon fifteen (15) days prior written notice to Seller. At the time of
Closing, the Purchaser shall pay to the Seller the balance due on account of the Purchase
Price, and the Seller and Purchaser, as applicable, shall execute the closing documents,
and the Seller shall convey the Property to the Purchaser by a Warranty Deed. In the
event the closing does not occur, the deposit money, interest and extension fees shall be
governed by the provisions of Paragraph 9, Permitting.
At time of closing, and simultaneously therewith, the parties agree that
Purchaser shall have the right to have Seller convey all or a portion of the site directly to
any subsequent assignee or Purchaser (Subsequent Purchaser), who acquires such right
from the Purchaser. It is the intent of the Purchaser to avoid the necessity and cost of a
dual conveyance. A conveyance to a Subsequent Purchaser shall not effect the terms of
this Agreement in any way. At closing, any monies due from Subsequent Purchaser, if
any, over and above the monies due Seller hereunder, shall enure to the benefit of
Purchaser. Closing, costs between Seller and Subsequent Purchaser shall be as set forth
herein between Seller and Purchaser.
7. WARRANTIES AND REPRESENTATIONS: Seller, to the best of its
knowledge, hereby makes the following warranties, representations and covenants to
5
Purchaser which warrantie~, .cpresentations and covenants shah _..Jrvive the closing.
(a) Marketable Title: Seller has good, marketable and insurable title to
the Property, free and clear of all mortgages (other than any existing
mortgage{s) to be paid simultaneously with the closing, by Seller
allocating the necessary funds from the closing proceeds to satisfy
the mortgage(s)), liens, encumbrances, leases, tenancies, security
interest, covenants, conditions, restrictions, rights-of-way, easements,
reservations, judgments, lis pendens and other matters affecting title,
except Permitted Exceptions.
Pendiri~ Litigation: There are no legal actions, suits or other legal or
administrative proceedings, including condemnation cases and
bankruptcy proceedings, pending or threatened, against the Property
and Seller iS,not aware of any facts which might result in any action,
suit or other proceeding against the property.
(c) Seller has the power and authority to enter into, deliver and perform
this Agreement, to execute and deliver all documents in and to the
Property, and to otherwise take all steps necessary to the
performance of the duties and obligations of Seller hereunder.
(b)
(d) Mechanic's Liens: There are no mechanic's or other type liens
against the Property, except as expressly allowed hereunder.
(e) Contracts: Seller warrants and represents to Purchaser that as of the
date of execution of the Agreement, there are no leases, options,
contracts or rights of any third parties affecting the Property in any
manner whatsoever.
(f) Seller discloses to Purchaser that the closest driveway to the corner
of Boynton Beach Boulevard and Federal Highway (which such
driveway is accessible from Boynton Beach Boulevard) has been
closed-off by order of the Florida Department of Transportation.
(g) Phase I Environmental Report - The Seller will provide, if available, to
Purchaser, a copy of an existing Phase I Environmental Report.
Purchaser shall have the right to terminate this Agreement at any time
during the Inspection Period, in the event Purchaser discovers that
the site is environmentally contaminated. If this occurs, Purchaser
shall receive a refund of all deposits and interest.
(h) Conditions Precedent: The following are conditions precedent to the
Purchaser's obligation to close this transaction.
(i) Water, sewer, storm drainage, electricity, gas and telephone
utilities shall be available for connection at the property line of
the Property and in such capacities, pressures and rates of
flow as to adequately provide for Purchaser's proposed plan of
6
ut.."elopment without any cost to Pu..... .dser other than the
usual connection fees and service charges.
(ii) On the date of Closing, no moratorium or proceeding shall be
pending or threatened affecting the availability at regular rates
and connection fees of sewer, water, electric, gas, telephone
or other utilities serving the Property.
(iii) There shall be sufficient ingress and egress for pedestrian and
motor vehicular traffic to adequately provide for Purchaser's
proposed plan of development.
(iv) No governmental restriction (including the concept of
"concurrency") shall be in effect, or anticipated to become
effective, which would impede or delay the immediate
development of the Property, orthe immediate issuance of any
permit or license for the construction of improvements upon
the Property, in accordanc"e with Purchaser's proposed use.
In the event any of the foregoing warranties or representations are not fulfilled
at, or at any time prior to Closing, Purchaser shall have the option of: (i) waiving the
condition and closing, (ii) extending the Closing for a period not to exceed thirty (30) days,
during which time Seller shall have the obligation of attempting to fulfill such conditions; or
(Hi) canceling this Agreement by written notice to Seller and the Escrow Agent, in which
event all escrow deposits including extension deposits, made hereunder, together with all
interest, shall be returned to Purchaser, whereupon the parties shall be relieved from all
further obligations hereunder.
8. EXISTING LEASES: The Seller warrants and represents to Purchaser that
as a condition of the closing, there will be no parties (tenants) in possession of any portion
of the Property at the time of Closing. Notwithstanding, Purchaser, upon receipt of all its
building permits, shall notify Seller of its intent to close, at which time the deposit shall be
non-refundable, unless the closing does not occur because of the default of Seller for any
reason including Seller's failure to remove all tenants within ninety (90) days from the date
Purchaser gives Seller written notice of its intent to close with a copy to James M. Painter,
Esquire.
Seller shall use all reasonable efforts to evict all tenants within ninety (90)
days of the date of notice from Purchaser. The costs of evictions, if any, shall be paid by
Seller.
9. PERMITTING: Purchaser, within a period of 150 days (the "Permitting
Period"), from the expiration of the Inspection Period, shall have secured, at its cost,
permits for the construction and operation of, at Purchaser's option, a retail facility, all in
accordance with Purchaser's proposed plan of development. Permitting shall include, but
not be limited to site plan approval, approval of curb-cuts as required by Purchaser,
concurrency, water and sewer allocations, septic tank approval, if required, signage
approval, and issuance of a building permit for the construction and operation ofthe facility,
by all governmental authorities having jurisdiction over the Property. Purchaser shall pay
all fees and cost including plans, impact fees, etc. required to receive its building permits.
7
Such Permitting shall be fine-I, . lon-appealable and without contin9v.. ...ies or conditions and
acceptable to Purchaser in Purchaser's discretion. Seller agrees to promptly execute any
and all documents or instruments as may be reasonably requested by Purchaser in order
to effectuate the Permitting and to cooperate with Purchaser in connection therewith,
provided such cooperation or execution of documents does not result in prejudice to Seller,
should the subject transaction not close. In the event the permitting process as defined
herein is not completed within the 150 days after the Effective Date, Purchaser may extend
the Permitting Period for up to four (4) additional periods of thirty (30) days by giving written
notice of each extension to Seller prior to the expiration of the Permitting Period or each
extension period, and delivering to Escrow Agent at time of such notice an additional sum
of $5,000.00 for each thirty (30) day extension period ("Extension Deposits"), which shall
be': a cost of carrying the property. In the event the transaction is not closed due to
Purchaser's inability to obtain the permitting, all deposit(s) shall be non-refundable,
including the Extension Deposit(s), and shall be retained by Seller, unless the failure to
close is due to the fault of Seller. The Extension Deposit(s) shall not be credited toward
the Purchase Price. '.
Notwithstanding the foregoing or anything to the contrary elsewhere in the
Agreement, if Permitting (site plan, signage, issuance of all building permits, curb-cuts,
water and sewer availability, concurrency, etc.) has not been effectuated at anytime within
the Permitting Period (or any extension thereof), or if Purchaser determines in its sole
discretion, not to pursue permitting, during the Permitting Period, or during any extension,
Purchaser may terminate the Agreement and receive a full refund of all Escrow Deposit(s)
and interest; however, all Extension Deposits shall be retained by Seller.
10. SURVEY: Purchaser, at Purchaser's expense, shall secure a survey from a
registered Florida surveyor. Purchaser shall, within twenty (20) days from receipt of the
survey, notify Seller of its objection to any matter that is revealed by the survey and this
event shall be treated as a Title Defect, as set forth herein.
If Purchaser fails to notify Seller within the twenty (20) day time period of its
objection to a matter revealed by the survey, Purchaser will be deemed to have waived any
objection to the matter. If Purchaser timely objects to a matter revealed by the survey and
Seller fails to cure or correct it on or before the Closing Date, the title matter will constitute
a Title Defect, and all deposits and extension fees shall be refunded to Purchaser.
11. ENVIRONMENTAL: Purchaser, at its cost, shall secure a Phase 1
Environmental Survey. In the event, any Environmental Report indicates contamination
or suspected contamination of the property, Purchaser shall, notify Seller of the findings,
and in its discretion, Purchaser shall have the right to cancel this Agreement and receive
a full refund of all deposits including extension deposits and interest.
In the event Purchaser desires to continue with the Agreement, Seller shall
within thirty (30) days from said notice from Purchaser, at its cost, secure a Phase II
Environmental Survey. In the event this report indicates contamination or suspected
contamination, PurGhaser may terminate the Agreement and receive a refund of all
deposits and interest including any extension deposits and interest.
12. TRANSACTION DOCUMENTS: Seller's attorney, at Seller's cost, will
prepare all Transaction Documents. At the Closing, the Seller and, as applicable, the
8
ACKNOWLEDGMENT BY ESCROW AGENT
ESCROW AGENT, FLEMING, HALE & SHAW, P,A., hereby acknowledges receipt
of the Escrow Deposit(s) for the above agreement in the amount of $5,000.00, this_
day of ,1999. In the event this Agreement is terminated
during the Inspection Period, or any extension thereof, the unilateral request of Purchaser
shall be sufficient to release the Escrow Deposit(s).
"ESCROW AGENT"
FLEMING, HALE & SHAW, P.A.
BY:
14
Purchaser, shall executive... following Transaction Documents.
(a) Warranty Deed from Seller to Purchaser conveying the Property and
improvements free and clear of all encumbrances except for the
Permitted Exceptions (any existing mortgage encumbering the
property shall be satisfied by Seller simultaneously at the closing, at
cost of Seller);
(b)
. .. ... (c)
(d)
(e)
(f)
Mechanic's Lien Affidavit in the form customarily used by the title
insurance company;
Non-Foreign Affidavit from appropriate parties;
Internal Revenue Service Form 1099 concerning the Property;
Closing Stafement between Seller and Purchaser; and
Any instruments required to correct Title Defects from Seller.
13. TRANSACTION EXPENSES: Purchaser shall pay the cost of the Title
Insurance Commitment and Title Insurance. Seller shall pay for state documentary
stamps, required to be affixed to the instrument of conveyance, cost of recording any
corrective instruments and the cost of recording the deed and any costs to satisfy any
existing mortgage on the property. Purchaser shall pay for the cost of surtax on the deed.
14. CLOSING ADJUSTMENTS: The following items, to the extent that they
pertain to the Property and whether paid, prepaid, payable, accrued, or assessed, will be
prorated, adjusted and allowed on the Closing Date, with Seller responsible for, or entitled
to, the items before the Closing Date and Purchaser responsible for, or entitled to, the
items on and after the Closing Date: Ad valorem real property taxes will be Prorated based
on the number of days in the year before, and the number of days in the year on and after,
the Closing Date and based on the taxes assessed for the calendar year (adjusted for any
discounts allowed by law), unless the taxes for that year are unascertainable on the
Closing Date, in which case the prospective taxes will be estimated and Prorated based
on the tax bill for the year immediately preceding the closing and adjustments, if any, will
be made upon receipt of the actual tax bill for the year of closing. Purchaser is responsible
for paying any special assessments for public or municipal improvements that are either
certified, confirmed, or ratified as of the Closing Date or substantially completed as of the
Closing Date but not certified, confirmed, or ratified as of then. Purchaser is responsible
for paying any special assessments for public or municipal improvements that are merely
pending and are not certified, confirmed, ratified, or substantially completed as of the
Closing Date. Any net amount owed by Seller to Purchaser as a result of reconciling the
foregoing adjustments will be credited against the cash balance due on the Closing Date
for the Purchase Price of the Property that is payable by Purchaser under this Agreement.
Any net amount owed by Purchaser to Seller as a result of reconciling the foregoing
adjustments will be ,payable in full on the Closing Date, in immediately available funds.
15. TITLE TO PROPERTY: RISK OF LOSS: Title to the Property and risk of
loss and damage to it by condemnation, eminent domain, or by casualty, whether or not
insured, will pass to Purchaser upon completion of the closing of the transaction
9
contemplated by this Agre\.i,..~nt, but will remain with Seller lh" then, including any
condemnation award.
16. EVENTS OF DEFAULT, The occurrence of anyone of the following events
constitutes a "Default" under this Agreement by the party indicated:
(a) Purchaser Default: Purchaser fails to perform within the time
specified any of its obligations under this Agreement;
(b) Seller Default: Seller fails to perform within the time specified any of
its obligations under this Agreement.
. .. ... Of
17. REMEDIES ON DEFAULT: If a Default under this Agreement exists prior to
or on the Closing Date, the following remedies will be available to the exclusion of all other
rights or remedies and the appropriate party must elect one of the following:
(a) Purchaser's Default: If Purchaser Defaults under the terms of this
Agreement, Seller may terminate this Agreement, and receive on
demand copies of all plans, drawings, specifications, contracts,
leases, approvals, permits and other documents relating to the site.
The actions set forth, shall be full settlement of all claims by Seller
against Purchaser and this Agreement shall be null and void. Further,
all Escrow Deposit(s) and any interest shall be retained by Seller.
Extension Deposits shall likewise be retained by Seller. In addition,
Seller shall have the right to bring an action for specific performance.
(b) Seller's Default: If Seller defaults under the terms of this Agreement,
Purchaser may terminate this Agreement and receive on demand
from the Escrow Agent, payment of the Escrow Deposit(s) and
extension fees, including any interest, whereupon all rights and
obligations of the parties under this Agreement will terminate and
become void or Purchaser may seek or bring an action for the specific
performance of this Agreement. In addition, Purchaser shall have the
right to bring an action for specific performance.
10
18. NOTICES: A.,) .Iotice given or made for any purp\..~ under and pursuant
to this Agreement shall be valid if in writing and hand delivered, sent by facsimile or
registered or certified mail, return receipt requested, postage pre-paid or by recognized
overnight courier, addressed:
if to the Seller:
Michael Puder, President
303 FEDERAL, INC.
9798 Laina Lane, Suite 3
Boynton Beach, Florida 33437
Telephone: (561) 477-0404
Facsimile: (561) 477-7140
if to the Purchaser: Gary P. Eidelstein, President
Boynton/Federal Development, Inc,
2665~outh Bayshore Drive, Suite 908
Miami, Florida 33133
Telephone: (305) 285-9595
Facsimile: (305) 285-1102
Either party may, at any time and from time-to-time, in the manner set forth for the
giving of notices, change the address designated in this paragraph.
19. ESCROW AGREEMENT: Any Escrow Agent receiving Escrow Deposit(s)
is authorized and agrees by acceptance thereof to deposit promptly and to hold same in
escrow and subject to clearance thereof to disburse same in accordance with terms and
conditions of this Agreement. In the event of doubt as to Escrow Agent's duties under the
provisions of this Agreement, the Escrow Agent may in its sole discretion, continue to hold
the subject matter of this escrow until the parties mutually agree to the disbursement
thereof, or until a judgment of a court of competent jurisdiction shall determine the rights
of the parties thereto, or Escrow Agent may deposit same with the Clerk of the Circuit
Court having jurisdiction of the dispute, and upon notifying all parties concerned of such
action, all liability on the part of he Escrow Agent shall fully terminate, except to the extent
of accounting for any items theretofore delivered out of escrow. If escrow Agent is a
licensed real estate broker, the Escrow Agent will comply with provisions of Chapter 475,
F.S., as amended. In the event of any suit between Purchaser and Seller wherein the
Escrow Agent is made a party by virtue of acting as an Escrow Agent hereunder, or in the
event of any suit herein Escrow Agent interpleads the subject matter of this escrow, the
Agent shall be entitled to recover reasonable attorney's fees and costs incurred, said fees
and costs to be charged and assessed as court costs in favor of the prevailing party. All
parties agree that the Escrow Agent shall not be liable to any party or person whomsoever
for mis-delivery to Purchaser or Seller of items subject to its escrow, unless such mis-
delivery shall be due to the willful breach of this Agreement or gross negligence of the part
of the Agent. The parties hereby agree, that the Escrow Agent is authorized to represent
Seller herein.
11
20. MISCELLANL..... JS:
(a) Amendment: Successors: An amendment or modification of this
Agreement or any provision of it will be valid and effective only if it is
in writing and signed by each party to this Agreement. This
Agreement inures to the benefit of, and is binding on, the respective
heirs, assignees, successors, and personal representatives of the
parties.
(b)
Attorney Fees and Costs: In the event a party to this Agreement must
employ an attorney to enforce provisions hereof or to secure
performance by a defaulting party under the terms herein stated, the
prevailing party in any litigation arising therefrom shall be entitled to
an award of reasonable attorney's fees and taxable costs both at a
trial and the appellate levels incurred in and enforcing this Agreement
and/or securing performance of the' terms herein stated.
(c) Entire Agreement: This Agreement constitutes the entire Agreement
between the parties hereto and that there are no agreements,
understandings, restrictions, warranties or representations, expressed
or implied, oral or written between the parties other than those herein
contained.
(d) Time of essence: Time is of the essence with respect to the
performance of the parties' respective obligations under this
Agreement. Notwithstanding the foregoing, the parties extend to the
other, a three (3) business day grace period for the performance of
any obligation herein undertaken.
In the event any due date occurs on a weekend or legal holiday, the
due date shall be extended to the next occurring business day.
(e) Counterpart Executions: 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 but one instrument, and facsimile
transmissions shall be deemed originals.
(f) Section and other Headings: Section, paragraph and other headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
(g) Severability: In case anyone or more provisions contained in this
Agreement shall, for any reason, be held invalid I illegal or un-
enforceable in any respect, such invalidity, illegality or un-
enforceability shall not effect any other provision herein and this
Agreement shall be construed as if such invalid, illegal or
unenforceable provision had not been contained herein.
(h) Waiver: No waiver hereunder of any condition or breach shall be
deemed to be a continuing waiver or a waiver of any subsequent
12
breach.
(i) Applicable Law: This Agreement is to be construed under the laws of
the State of Florida and venue shall lie in Dade County, Florida.
m Radon Gas: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of
radon may be present in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county
public health unit.
21. BROKERAGE: A real estate commission in the amount of seven (7%)
percent shall be paid to Mark V Properties, Inc., a licensed real estate broker, by Seller at
closing.
22. LIKE KIND EXCHANGE: Should Seller elect to employ "like-kind-exchange"
treatment forthis transaction, Purchaser agrees to sign all documents reasonably required
by Seller, provided there is no expense to Purchaser and provided no adverse
consequence befalls Purchaser as a result of executing such documents.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed the
day and year indicated above.
lorida corporation
Execution Date of Seller:
"Purchaser"
13
ACKt-4l".tlLEDGMENT BY ESCROW AGEN .
ESCROW AGENT, JAMES M. PAINTER, P,A" hereby acknowledges reC~Ofthe
Escrow ~osit(s) for the above agreement in the amount of $10,OOO.O~his day
of / I /~ I 1999. In the event this Agreement is terminated during
the Inspection Period, or any extension thereof, the unilateral request of Purchaser shall
be sufficient to release the Escrow Deposit(s).
"ESCROW AGENT'
'* Sc)~-z::..-r 'Tb
~ oP FV~bS'..
(y'
14
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 7, 8, 9, 10, 11, and 12, of Block 8, ROBERTS ADDITION TO THE
TOWN OF BOYNTON BEACH, a subdivision of part of the Southeast
Quarter (S,E, 1/4) of the Southeast Quarter (S.E. 1/4) of Section
21, Township 45 South, Range 43 East, as recorded in the office of
the Clerk of the Circuit Court, in Plat Book 1, at Page 51, Public
Records of Palm Beach County, Florida, being more particularly
described as follows:
Lots 7, 8, ,and 9, less the East 35 feet of said Lots 8 and 9, for
right-of-way purposes (State Road 51/U,8, Highway No. l}i Lots 10
and 11, less the South 40 feet of said Lot 11 for right-of-way
purposes (Northeast 2nd Avenue/Boynton Beach Boulevard), and Lot
12, less the South 40 feet and the East 35 feet of said Lot 12 for
right-of-way purposes and further less that part of the said Lot 12
which is included in the external area formed by a 12 foot radius
arc which is tangent to a line 40 feet North of and parallel to the
South line of Section 21 (South line of Lot 12), Township 45 South.
Range 43 East, and which is tangent to a line 50 feet West of and
parallel to the East line said Section 21, all being located in
Block 8, of ROBERTS ADDITION TO THE TOWN OF BOYNTON BEACH,
according to the plat thereof as recorded in Plat Book 1, Page 51,
Public Records of Palm Beach County, Florida.
IIl1h'ersnl renl"" ;..111 tle,'elt.,tlllellf, inc.
.
111~lt
FACSIMILE TRANSMISSION SHEET
Date:
1-P, g /ql7
{ {
f3~-rI-\N MtUt--JN
To:
From:
Scott Sheron
Fax#:
1Sro I - 36"'1-- oR d(
Total number of pages (including this cover): I~
If you do not receive all the pages, please contact the above sender at (305) 285-9595 as
soon as possible.
Special Remarks: ~ t'l:"HtlSf... cC- s::AL..C A.GP-F-r_M(J\)\.
-2M.S SlIlIlh na~ ,hlll'l' J)l'in-Suih- 9UN_ Miami, FI. JJ IJJ-Td: (JUS) 2N5-4):'9:'_ Fa\: (JII5) 2H5-11 U2
TRANSMISSION-REPORT
TIME
TEL NUMBER
NAME
APR 29'99 09:12
+305-285-1.102
UNIVERSAL REALTY
TO
15613640808
START TIME : APR 29'99 08:59
END TIME APR 29'99 09: 12
PAGES 17
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SALE AND PURCHASE AGREEMENT
THISAGREEMENTmadeandentered intothis_dayof ,1999,
by and between RAYMOND W. ALLEN, TRUSTEE, hereinafter ("Seller"), and
UNIVERSAL REAL TV & DEVELOPMENT, INC., a Florida corporation, hereinafter
("Purchaser"), or assigns.
WITNESSETH:
WHEREAS, Seller is the owner of property located at 325 North Federal Highway,
Boynton Beach, Florida, and Purchaser desires to purchase said property, legally
described on Exhibit "A", attached hereto, hereinafter ("PROPERTY"); and
WHEREAS, Seller wishes to sell and Purchaser wishes to buy the Property upon
the terms, covenants and conditions hereinafter set forth.
NOW, THEREFORE, in consideration ofthe mutual covenants contained herein and
for other good and valuable consideration, the parties agree as follows:
1. DEFINITIONS: For purposes of this Agreement, the following terms shall
have the following meanings:
"Acceptable Title" means good, marketable, and insurable fee simple record
title to the Property, free and clear of all Title Defects, except for any
Permitted Exceptions and any special title matter to which Purchaser waives
objection.
"Agreement" means this Agreement for Sale and Purchase as originally
executed and as it may be amended in writing, from time-to-time as provided
herein.
"Closing" means the execution and delivery of those documents, and the
payment of those funds required to be paid at the time and manner required
hereunder.
"Conditions Precedent" means those items, if any, which must be satisfied
prior to Closing in order to obligate the Purchaser to purchase and the Seller
to sell the Property under the terms and conditions hereinafter described.
"Escrow Agent" means Kevin M. LaMontagne, the Seller's attorney, who will
hold the Escrow Deposit in accordance with the terms of this Agreement.
conlracl\allen2.spa\7/15/99
"Escrow Deposit" means all funds delivered by Purchaser to Escrow Agent
or Seller in connection with this Agreement which seNes as partial
consideration for Purchasers obligations hereunder.
"Effective Date" means the date when this Agreement is last signed by both
the Seller and Purchaser, and which date shall be evidenced by a written
confirmation.
"Inspection Period" means Purchaser shall have an unconditional inspection
period offorty-five (45) days from the Effective Date to conduct an inspection
at the Property and receive if desired a refund of its deposit and interest
during this period of time.
"Permitted Assigns" means those parties to whom this Agreement may be
transferred without the prior written approval of Seller, as long as a majority
of the new Purchaser(s) are principals of Universal Realty & Development,
Inc.
"Permitted Exceptions" means the title exceptions set forth in Exhibit "B" of
the Title Commitment, which are acceptable to Purchaser. Purchaser shall
have twenty (20) days from receipt of its Pro-forma Title Commitment to
review and accept or reject same. If Purchaser does not accept the
"exceptions", Purchaser shall be entitled to an immediate refund of its
deposit and interest, which shall be its sole remedy. Permitted Exceptions
shall specifically include (a) liens for state, county, and municipal ad valorem
real property taxes for the current year (to be prorated); (b) liens for special
assessments for public or municipal improvements, whether pending,
completed or certified, confirmed, ratified, or otherwise due and payable; (c)
easements for public utility services and facilities that serve the Property or
the improvements or are located along and parallel to the front, rear, and
side boundaries of the Property and do not, in Purchaser's sole discretion,
substantially impair, prohibit, or interfere with the use of the Property; (d)
easements, reservations, and restrictions of record that are common to any
plat or subdivision of which the Property is a part, that are not in violation or
coupled with any reversionary or forfeiture provision, and that do not in
Purchaser's sole discretion, impair, prohibit, or interfere with the use and
occupancy of the Property; (e) claims for vendors', carriers', mechanic's,
materialmen's, and other similar liens arising from the Property, if each such
claim of lien is discharged by payment; and (f) any other lien, exception,
assessment, encumbrance, reservation, or restriction to which Purchaser
waives objection or that can be removed or satisfied by Seller on the Closing
Date.
"Pro-rated" means the allocation of an item of expense or income between
Seller and Purchaser based upon the percentage of the time period as to
which such item of expense or income relates as of Closing.
2
"Property" means the parcel of land that is legally described on Exhibit "A"
to this Agreement, together with all easements, tenements, hereditament,
and appurtenances on or to that land.
"Purchase Price" means the full consideration agreed to be paid by the
Purchaser to the Seller for the purchase of the Property. All sums refer to
the currency of the United States of America.
"Survey" means that certain survey (boundary and topographic) to be
prepared at the expense of Purchaser, in accordance with this Agreement
by a licensed surveyor and certified to Purchaser.
"Title Defect" means a lien, defect, exception, encumbrance, restriction,
reservation, or imperfection in, to, or on the record title to the Property.
However, Permitted Exceptions shall not be considered a Title Defect.
Furthermore, this Agreement shall be governed by the Florida FAR/BAR
contract, as it relates to the definition of Title Defects and Permitted
Exceptions.
"Title Insurance" means the Title Insurance Commitments and Policy issued
by a recognized title company selected or approved by Purchaser in
accordance with the terms of this Agreement.
"Transaction Document" means this Agreement and all of the documents
required or contemplated in connection with the Closing of this transaction.
2. PROPERTY TO BE CONVEYED: Seller agrees to sell and convey to
Purchaser and Purchaser agrees to buy from Seller the Property, upon the terms and
conditions hereinafter set forth and subject to performance of all conditions of this
Agreement and performance by each party hereto of its respective obligation hereunder.
3. PURCHASE PRICE OF THE PROJECT: $165,000.00
PAYMENT:
(a) Escrow Deposit payable to Escrow Agent upon execution of this
Agreement by Purchaser to be placed in an interest bearing account
(to benefit Purchaser), which sum shall be a part of the Purchase
Price. Purchaser must provide the Escrow Agent with its Federal Tax
Identification number, which is the number under which all interest
earned will be reported to the Internal Revenue Service.
$5,000.00
3
(b) After expiration of the inspection period, in the event Purchaser elects
not to terminate this Agreement, Purchaser will deposit in escrow an
additional sum of $10,000.00 to be held in an interest bearing
account, to the benefit of Purchaser, which sum shall be a part of the
Purchase Price.
(c) Commencing with the 46th day from the Effective Date of the
Agreement, Purchaser shall allow $1,000.00 to be released from the
Escrow Agent to Seller, for each thirty (30) day period until closing.
Said sums shall be applicable to the purchase price. but non-
refundable in the event Purchaser terminates this Agreement.
(d) Balance due in cash at Closing, subject to adjustments and prorations
as herein provided.
4. TITLE EVIDENCE: Purchaser shall procure, at its sole expense, a Title
Insurance Commitment on the Property within twenty (20) days of the Effective Date of this
Agreement, issued by a licensed Florida title insurer. Upon recording of the deed to
Purchaser, Purchaser, at its expense, shall secure an Owner's Policy of Title Insurance in
the amount of the Purchase Price, insuring Purchaser's title to the Property. Before the
20th day following Purchaser's receipt of the title insurance commitment, Purchaser shall
notify Seller of each exception or requirement for a Title Defect that it considers to impair
Acceptable Title to the Property and that it will not waive. If Purchaser fails to notify Seller
within the time period of its objection to a Title Defect(s), Purchaser will be deemed to have
waived the Title Defect. If Purchaser timely notifies Seller of its objection to a Title Defect,
Seller shall within the following fifteen (15) days notify Purchaser whether Seller intends
to cure, correct or remove a Title Defect. Purchaser and Seller hereby agree that Seller
shall not be obligated to cure any Title Defect and may by written notice to Purchaser
waive any curative period and thereby require Purchaser to, within fifteen (15) days, either
accept the Title Defect as it then is or refund the Escrow Deposit and interest and
terminate this Agreement. If Seller, within the time mutually agreed to (if and as extended),
is unable or unwilling to cure, remove, or correct a Title Defect that has not been waived
by Purchaser, Seller shall promptly notify Purchaser of that fact and the reason for it, and
Purchaser may (a) elect to terminate the transaction; (b) postpone the Closing Date for up
to thirty (30) days and either allow Seller to continue to try to cure, remove or correct the
Title Defect, or attempt at its expense, to cure, remove or correct the Title Defect. If the
Seller is unable to cure the Title Defect, Purchaser may either accept the Title Defect as
it then is or receive a refund of its Escrow Deposit and interest and terminate this
Agreement.
After issuance of the Title Commitment to the date of Closing, Seller shall not
in any manner encumber title, create any liens or place any mortgage(s) on the Property
or in any way alter the status of title.
4
5. INSPECTION PERIOD: Purchaser shall have an unconditional inspection
period of forty-five (45) days from the Effective Date of this Agreement. Purchaser shall
have the right (and Seller shall provide reasonable access for such purposes) to have an
independent engineer and others of Purchaser's selection make inspections of the
Property. Seller shall provide such documentation as Purchaser may reasonably request
if said documentation is available to Seller. Purchaser's access for inspections shall be
arranged only through Seller, and said inspections shall be made without disturbing the
existing Tenant.
(a) Inspection Verification: Purchaser shall have the right to inspect the
Property, to conduct such topographical surveys, soil test borings and
other sub-surface tests, percolation tests, engineering and other
related developmental studies, tests and examinations thereof,
including but not limited to sewer or septic availability, as Purchaser
may desire in order to determine whether the Property is suitable for
Purchaser's intended use thereof. In connection with its inspection of
the Property, Purchaser shall (i) not damage the Property; (ii) repair
or restore at its expense any damage to the Property that is caused
by its agents or employees; and (iii) release and indemnify and hold
harmless Seller from all claims, actions, suits, damages and
expenses, including reasonable attorneys' fees, that are incurred by
Seller and arise out of Purchaser's inspection of the Property, by
Purchaser or any person Purchaser invites to inspect the Property, or
his or their agents, employees or subcontractors. If prior to the
Inspection Completion Date, Purchaser determines that the Property
does not conform to Purchaser's intended use, or for any other
reason whatsoever, in Purchaser's sole discretion, Purchaser may
elect to cancel this Agreement upon written notice to Seller
whereupon the Escrow Agent shall return to the Purchaser the
Escrow Deposit(s) and all interest earned thereon, and this
Agreement shall thereupon be null and void. If this agreement is
terminated for any reason, Purchaser shall furnish Seller with copies
of all work product, including surveys, environmental reports, title
work, etc. in its possession.
6. CLOSING: This transaction shall be closed no later than 180 days after
expiration of the Inspection Period, predicated upon the Purchaser's securing permitting
as set forth in the subsection entitled "Permitting", to be extended by any extensions
thereof, and the closing shall be subject to the time periods set forth in Paragraph 9,
Permitting. The closing of the transaction contemplated by this Agreement is sometimes
herein referred to as the "Closing" and the date and time of the Closing is sometimes
herein referred to as the "Closing Date". The Closing shall take place at the offices of the
Seller's attorney or Purchaser's designated Title Agent. Purchaser may elect to close on
any date prior to the above date, upon forty-five (45) days prior written notice to Seller. At
the time of Closing, the Purchaser shall pay to the Seller the balance due on account of
the Purchase Price, and the Seller and Purchaser, as applicable, shall execute the closing
documents, and the Seller shall convey the Property to the Purchaser by a Warranty Deed.
5
In the event the closing does not occur, the deposit money, interest and extension fees
shall be governed by the provisions of Paragraph 9, Permitting.
The parties agree that Purchaser shall have the right to have Seller convey
all or a portion of the site directly to any subsequent assignee or Purchaser (Subsequent
Purchaser), who acquires such right from the Purchaser. It is the intent of the Purchaser
to avoid the necessity and cost of a dual conveyance. A conveyance to a Subsequent
Purchaser shall not effect the terms of this Agreement in any way. At closing, any monies
due from Subsequent Purchaser, if any, over and above the monies due Seller hereunder,
shall enure to the benefit of Purchaser. Closing costs between Seller and Subsequent
Purchaser shall be as set forth herein between Seller and Purchaser.
7. WARRANTIES AND REPRESENTATIONS: Seller, to the best of its
knowledge, hereby makes the following warranties, representations and covenants to
Purchaser.
(a) Marketable Title: Seller has, at the time of closing, good, marketable
and insurable title to the Property, free and clear of all mortgages
(other than any existing mortgage(s) to be paid simultaneously with
the closing, by Seller allocating the necessary funds from the closing
proceeds to satisfy the mortgage(s)), liens, encumbrances, leases,
tenancies, security interest, covenants, conditions, restrictions, rights-
of-way, easements, reservations, judgments, lis pendens and other
matters affecting title, except Permitted Exceptions.
(b) Pending litigation: There are no legal actions, suits or other legal or
administrative proceedings, including condemnation cases and
bankruptcy proceedings, pending or threatened, against the Property
and Seller is not aware of any facts which might result in any action,
suit or other proceeding against the property.
(c) Seller has the power and authority to enter into, deliver and perform
this Agreement, to execute and deliver all documents in and to the
Property, and to otherwise take all steps necessary to the
performance of the duties and obligations of Seller hereunder.
(d) Mechanic's liens: There are no mechanic's or other type liens
against the Property, except as expressly allowed hereunder.
(e) Contracts: Seller warrants and represents to Purchaser that as of the
date of execution of the Agreement, there are no leases, except
Apple Insurance, options, contracts or rights of any third parties
affecting the Property in any manner whatsoever.
6
(f) Access to Highways and Roads: The Property has full and free
access to and from publicly dedicated roadways which are located
contiguous and adjacent to the boundary line of the Property, and
Seller has no knowledge of any fact or condition which would result
in termination on diminution of such access.
(g) Hazardous Wastes: To the best of Seller's knowledge, there are no
hazardous substances as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 USC 9601 (14), pollutants or contaminants as
defined in the Resource Conservation and Recovery Act ("RCRA") ,
42 USC 6903 (5), or other similar applicable federal or state laws and
regulations, including, but not limited to, asbestos, PCBs and urea
formaldehyde, generated, released, stored, or deposited over,
beneath or on the Property or on or in any structures located on the
Property from any source whatsoever by Seller, its predecessors in
interest in the Property or any other person. That to the best of
Seller's knowledge, there is no contamination ofthe Property from off-
site sources; that there is no past or pending litigation which effects
the property and that there are no underground tanks or previous
environmental regulatory filings on the site.
Purchaser shall have the right to terminate this Agreement at any time
during the Inspection Period, or to the date of Closing, in the event
Purchaser discovers that the site was, or is suspected of being
environmentally contaminated. If this occurs, Purchaser shall receive
a refund of any Escrow Deposits remaining after the deductions
provided for in Section 3(c). It is understood that Extension Fees are
also to be non-refundable, in the event Purchaser terminates due to
environmental conditions
In the event any of the foregoing warranties or representations are not fulfilled
at, or at any time prior to Closing, Purchaser shall have the option of: (i) waiving the
condition and closing, (ii) extending the Closing for a period not to exceed thirty (30) days,
during which time Seller shall have the obligation of attempting to fulfill such conditions; or
(iii) canceling this Agreement by written notice to Seller and the Escrow Agent, in which
event any and all Escrow Deposits remaining after the deductions providing for in Section
3(c) shall be returned to Purchaser, whereupon, the parties shall be relieved form all further
obligations hereunder.
8. EXISTING LEASES: The Seller warrants and represents to Purchaser that
as a condition of the closing, there will be no parties (tenants) in possession of any portion
of the Property at the time of Closing.
9. PERMITTING: Purchaser, within a period of 180 days, from the expiration
of the Inspection Period, shall have secured, at its cost, permits for the construction and
operation of, at Purchaser's option, a retail facility, all in accordance with Purchaser's
7
proposed plan of development. Permitting shall include, but not be limited to site plan
approval, approval of curb-cuts as required by Purchaser, concurrency, water and sewer
allocations, septic tank approval, if required, signage approval, and issuance of a building
permit for the construction and operation of the facility, by all governmental authorities
having jurisdiction over the Property. Purchaser shall pay all fees and cost including plans,
impact fees, etc. required to receive its building permits. Such Permitting shall be final,
non-appealable and without contingencies or conditions and acceptable to Purchaser in
Purchaser's discretion. Seller agrees to promptly execute any and all documents or
instruments as may be reasonably requested by Purchaser in order to effectuate the
Permitting and to cooperate with Purchaser in connection therewith. In the event the
permitting process as defined herein is not completed within the 180 days after the
Inspection Period, Purchaser may extend the Permitting Period for up to three (3)
additional periods of thirty (30) days by giving written notice of each extension to Seller
prior to the expiration of the Permitting Period or each extension period, and delivering to
Escrow Agent at time of such notice an additional sum of $2,500.00 for each thirty (30) day
extension period ("Extension Fees", which shall be a cost of carrying the property. In the
event the transaction is not closed due to Purchaser's inability to obtain the permitting, the
remaining after the deductions provided for in Section 3(C) shall be refunded: however, the
Extension Fees will be retained by Seller, unless the failure to close is due to the fault of
Seller. At closing, Purchaser will receive credit for all the deposits, but not extension fees.
Notwithstanding the foregoing or anything to the contrary elsewhere in the
Agreement, if Permitting (site plan, signage, issuance of all building permits, curb-cuts,
water and sewer availability, concurrency, etc.) has not been effectuated at anytime within
the Permitting Period (or any extension thereof), or if Purchaser determines in its sole
discretion, not to pursue permitting, either during the Permitting Period, or any extension,
Purchaser may terminate the Agreement and receive a full refund of any and all remaining
Escrow Deposits and interest, and Seller shall also retain any and all Extension Fees paid.
10. SURVEY: Purchaser, at its expense, within twenty (20) days of the Effective
Date, shall secure a survey (boundary and topographic) from a registered Florida surveyor
and deliver same to Purchaser. Purchaser shall, within twenty (20) days from receipt of
the survey, notify Seller of its objection to any matter that is revealed by the survey and this
event shall be treated as a Title Defect, as set forth herein.
If Purchaser timely objects to a matter revealed by the survey and Seller fails
to cure or correct it on or before the Closing Date, the title matter will constitute a Title
Defect, and all deposits.
11. ENVIRONMENTAL: Purchaser, at its cost, within the forty-five (45) day
Inspection Period, shall secure a Phase 1 Environmental Survey. In the event, any
Environmental Report indicates contamination orsuspected contamination ofthe property,
Purchaser shall, notify Seller of the findings, and in its discretion, Purchaser shall have the
right to cancel this Agreement and receive a full refund of all deposits including extension
deposits and interest.
8
In the event Purchaser desires to continue with the Agreement, Purchaser,
at its cost, may secure a Phase II Environmental Survey. In the event this report indicates
contamination or suspected contamination, Purchaser may terminate the Agreement and
receive a refund of any and all remaining Escrow Deposits and interest. Furthermore,
Seller shall retain all Extension Fees which have been paid.
12. TRANSACTION DOCUMENTS: Seller's attorney, at Seller's cost, will
prepare all Transaction Documents. At the Closing, the Seller and, as applicable, the
Purchaser, shall execute the following Transaction Documents:
(a) Warranty Deed from Seller to Purchaser conveying the Property and
improvements free and clear of all encumbrances except for the
Permitted Exceptions (any existing mortgage encumbering the
property shall be satisfied by Seller simultaneously at the closing, at
cost of Seller);
(b) Mechanic's Lien Affidavit in the form customarily used by the title
Insurance company;
(c) Non-Foreign Affidavit from appropriate parties;
(d) Internal Revenue Service Form 1099 concerning the Property;
(e) Closing Statement between Seller and Purchaser; and
(f) Any instruments required to correct Title Defects from Seller.
13. TRANSACTION EXPENSES: Purchaser shall pay the cost of the Title
Insurance Commitment and Title Insurance. State documentary stamps, required to be
affixed to the instrument of conveyance, cost of recording any corrective instruments and
the cost of recording the deed and any costs to satisfy any existing mortgage on the
property, shall be paid the Seller. Purchaser shall pay for the cost of surtax on the deed.
14. CLOSING ADJUSTMENTS: The following items, to the extent that they
pertain to the Property and whether paid, prepaid, payable, accrued, or assessed, will be
prorated, adjusted and allowed on the Closing Date, with Seller responsible for, or entitled
to, the items before the Closing Date and Purchaser responsible for, or entitled to, the
items on and after the Closing Date: Ad valorem real property taxes will be Prorated based
on the number of days in the year before, and the number of days in the year on and after,
the Closing Date and based on the taxes assessed for the calendar year. Purchaser is
responsible for paying any special assessments for public or municipal improvements that
are either certified, confirmed, or ratified as of the Closing Date or substantially completed
as of the Closing Date but not certified, confirmed, or ratified as of then. Purchaser is
responsible for paying any special assessments for public or municipal improvements that
are merely pending and are not certified, confirmed, ratified, or substantially completed as
of the Closing Date. Any net amount owed by Seller to Purchaser as a result of reconciling
9
the foregoing adjustments will be credited against the cash balance due on the Closing
Date for the Purchase Price of the Property that is payable by Purchaser under this
Agreement. Any net amount owed by Purchaser to Seller as a result of reconciling the
foregoing adjustments will be payable in full on the Closing Date, in immediately available
funds.
15. TITLE TO PROPERTY; RISK OF LOSS: Title to the Property and risk of
loss and damage to it by condemnation, eminent domain, or by casualty, whether or not
insured, will pass to Purchaser upon completion of the closing of the transaction
contemplated by this Agreement, but will remain with Seller until then, including any
condemnation award.
16. EVENTS OF DEFAULT. The occurrence of anyone of the following events
constitutes a "Default" under this Agreement by the party indicated:
(a) Purchaser Default: Purchaser fails to perform within the time
specified any of its obligations under this Agreement;
(b) Seller Default: Seller fails to perform within the time specified any of
its obligations under this Agreement.
17. REMEDIES ON DEFAULT: If a Default under this Agreement exists prior to
or on the Closing Date, the following remedies will be available to the exclusion of all other
rights or remedies and the appropriate party must elect one of the following:
(a) Purchaser's Default: If Purchaser Defaults under the terms of this
agreement, Seller may terminate this Agreement, and receive on
demand copies of all plans, drawings, specifications, contracts,
leases, approvals, permits and other documents relating to the site.
The actions set forth, shall be full settlement of all claims by Seller
against Purchaser and this Agreement shall be null and void. All
Escrow Deposit(s) and interest, shall be retained by Seller. Extension
Deposits shall be retained by Seller.
(b) Seller's Default: If Seller defaults under the terms of this Agreement,
Purchaser may terminate this Agreement and receive on demand
from the Escrow Agent, payment of the Escrow Deposit(s) and
extension fees, including interest, whereupon all rights and obligations
of the parties under this Agreement will terminate and become void
or Purchaser may seek or bring an action for the specific performance
of this Agreement.
18. NOTICES: Any notice given or made for any purpose under and pursuant
to this Agreement shall be valid if in writing and hand delivered, sent by facsimile or
registered or certified mail, return receipt requested, postage pre-paid or by recognized
overnight courier, addressed:
10
if to the Seller: Raymond W. Allen, Trustee
P.O. Drawer AA
Boynton Beach, Florida 33425
Telephone: (561) 683-8323
Facsimile: (561) 683-8390
with a copy to: Kevin M. LaMontagne, Esquire
Attorney at Law
Fruda Law Building
125 East Boynton Beach Boulevard
Boynton Beach, Florida 33435
Telephone: (561) 732-0100
Facsimile: (561) 732-0877
if to the Purchaser: Gary P. Eidelstein, President
Universal Realty & Development, Inc.
2665 South Bayshore Drive, Suite 908
Miami, Florida 33133
Telephone: (305) 285-9595
Facsimile: (305) 285-1102
Either party may, at any time and from time-to-time, in the manner set forth for the
giving of notices, change the address designated in this paragraph.
19. ESCROW AGREEMENT: The Escrow Agent, Kevin M. LaMontagne, Esquire,
receiving Escrow Deposit(s) is authorized and agrees by acceptance thereof to deposit
promptly and to hold same in escrow and subject to clearance thereof to disburse same
in accordance with terms and conditions of this Agreement. The Escrow Deposit shall be
refunded to Purchaser without the necessity of Seller's approval for failure of a conditional
event including, but not limited to the termination of this Agreement, pursuant to the terms
of Paragraph 5, termination during the Inspection Period. In the event Escrow Agent
questions any of his duties under the provisions of this Agreement, the Escrow Agent may
in his sole discretion, continue to hold the subject matter of this escrow until the parties
mutually agree to the disbursement thereof, or until a judgment of a court of competent
jurisdiction shall determine the rights of the parties thereto, or Escrow Agent may deposit
same with the Clerk of the Circuit Court having jurisdiction of the dispute, and upon
notifying all parties concerned of such action, all liability on the part of the Escrow Agent
shall fully terminate, except to the extent of accounting for any items theretofore delivered
out of escrow. In the event of any suit between Purchaser and Seller wherein the Escrow
Agent is made a party by virtue of acting as an Escrow Agent hereunder, or in the event
of any suit herein Escrow Agent interpleads the subject matter of this escrow, the Escrow
Agent shall be entitled to recover reasonable attorney's fees and costs incurred, said fees
and costs to be charged and assessed as court costs in favor of the prevailing party. All
parties agree that the Escrow Agent shall not be liable to any party or person whomsoever
for mis-delivery to Purchaser or Seller of items subject to its escrow, unless such mis-
delivery shall be due to the willful breach of this Agreement or gross negligence of the part
of the Agent. The parties hereby agree, that the Escrow Agent is authorized to represent
11
Seller herein. Escrow Agent has the authority to disburse to the Seller, in accordance with
Section 3(c), without obtaining any prior approval from the Purchaser.
20. MISCEllANEOUS:
(a) Amendment: Successors: An amendment or modification of this
Agreement or any provision of it will be valid and effective only if it is
in writing and signed by each party to this Agreement. This
Agreement inures to the benefit of, and is binding on, the respective
heirs, assignees, successors, and personal representatives of the
parties.
(b) Attorney Fees and Costs: In the event a party to this Agreement must
employ an attorney to enforce provisions hereof or to secure
performance by a defaulting party under the terms herein stated, the
prevailing party in any litigation arising therefrom shall be entitled to
an award of reasonable attorney's fees and taxable costs both at a
trial and the appellate levels incurred in and enforcing this Agreement
and/or securing performance of the terms herein stated.
(c) Entire Agreement: This Agreement constitutes the entire Agreement
between the parties hereto and that there are no agreements,
understandings, restrictions, warranties or representations, expressed
or implied, oral or written between the parties other than those herein
contained.
(d) Time of essence: Time is of the essence with respect to the
performance of the parties' respective obligations under this
Agreement.
In the event any due date occurs on a weekend or legal holiday, the
due date shall be extended to the next occurring business day.
(e) Counterpart Executions: 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 but one instrument, and facsimile
transmissions shall be deemed originals.
(f) Section and other Headings: Section, paragraph and other headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
(g) Severability: In case anyone or more provisions contained in this
Agreement shall, for any reason, be held invalid, illegal or un-
enforceable in any respect, such invalidity, illegality or un-
enforceability shall not effect any other provision herein and this
12
Agreement shall be construed as if such invalid, illegal or
unenforceable provision had not been contained herein.
(h) Waiver: No waiver hereunder of any condition or breach shall be
deemed to be a continuing waiver or a waiver of any subsequent
breach.
(i) Applicable Law: This Agreement is to be construed under the laws of
the State of Florida and venue shall lie in Palm Beach County,
Florida.
U) Radon Gas: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of
radon may be present in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county
public health unit.
21. BROKERAGE: At the Purchaser's request, Seller agrees to pay Mark V
Properties, the Purchaser's Broker, from the closing proceeds the sum of $8,700.00 upon
the closing of this transaction and receipt by Seller of the full purchase price to which Seller
is entitled. Purchaser warrants and represents that it has involved no other broker in this
transaction and hereby agrees to indemnify and hold harmless the Seller from any claim
made against the Seller by any other broker.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed the
day and year indicated above.
WITNESSES:
"Seller"
RAYMOND W. ALLEN, TRUSTEE
BY:
Execution Date of Seller:
"Purchaser"
UNIVERSAL REALTY & DEVELOPMENT, INC.
a Florida c~ion
BY: .---.,' ~
Gary P. Eid Istein, President
Execution Date of purchaser:.
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ACKNOWLEDGMENT BY ESCROW AGENT
ESCROW AGENT, , hereby acknowledges
receipt of the Escrow Deposit(s) for the above agreement in the amount of $
this _ day of ,1999. In the event this Agreement is
terminated during the Inspection Period, or any extension thereof, the unilateral request
of Purchaser shall be sufficient to release the Escrow Deposit(s). Escrow Agent has the
authority to disburse to the Seller, in accordance with Section 3(c), without obtaining any
prior approval from the Purchaser. '
"ESCROW AGENT"
BY:
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EXHIBIT "A"
LEGAL DESCRIPTION
Roberts addition, Lot 1 (less the East 35 feet) and Lot 2, Block 8, Plat Book 1, Plat page
51. Folio #08-43-45-21-26-008-0010-001.
contracts\allen2,spa\7/15/99
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