APPLICATION
PROJECT NAME: Boynton Commerce Center Lot 3B
LOCATION: West ofI-95, East of Congress, South of Woolbright
PCN: 08-43-45-32-14-003-0020
I FILE NO.: NWSP 03-009 II TYPE OF APPLICATION: New Site Plan I
AGENT/CONTACT PERSON: OWNER: Nayrot Realty, Inc
Winston Lee PHONE: 514-938-10580
Winston Lee & Associates, Inc. FAX: 514-938-9575
PHONE: 689-4670 ADDRESS: 4444 St. Catherine W # 100
FAX: 689-5559 Westmount, QC H3Z lR2 Canada
ADDRESS: 1532 Old Okeechobee Rd.
#106 West Palm Beach, FL 33409
Date of submittal/Proiected meetin2 dates:
SUBMITTAL 1 RESUBMITT AL 5/21/03
1ST REVIEW COMMENTS DUE: 6/5/03
PUBLIC NOTICE: N/A
TRC MEETING: 7/1/03
PROJECTED RESUBMITT AL DATE: N/A
ACTUAL RESUBMITTAL DATE: N/A
2ND REVIEW COMMENTS DUE: N/A
LAND DEVELOPMENT SIGNS POSTED N/A
(SITE PLANS):
PLANNING & DEVELOPMENT BOARD 7/22/03
MEETING:
COMMUNITY REDEVELOPMENT N/A
AGENCY BOARD
CITY COMMISSION MEETING: 8/5/03
COMMENTS:
S:\Planning\SHARED\WP\PROJECTS\Boynton Commerce Ctr\Boynton Commerce Ctr, Lot 38\2003 PROJECT TRACKING INFO.doc
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May 21, 2003
Mr, Michael Rumpf, Director ofP1anning & Zoning
Planning & Zoning Division
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33425-0310
RE: Boynton Commerce Center Planned Industrial Development
Our File No. 02-030
Dear Mr, Rumpf:
Attached please find a site plan application and 12 complete copies of the plans for the above
referenced project. Per our discussion on May 16, 2003, I understand that it is the City's position
that a Master Plan amendment to the approved PID would be required if a parking lot is being
proposed to be constructed on Parcel3H as part of this site plan review, In response, the submitted
plans have been revised to indicate the area as proposed future parking (Phase II) and request for
approval of same is not included in this site plan application submittal. All site calculations labeled
as Phase I, including parking tabular data, are based on the plan to be approved without this parking
area, We are requesting a condition of approval be that the Phase II parking lot shall not be
constructed until the project is processed through the appropriate City approval process.
Also, in response to your request for verification of the amount of unallocated common parking for
the PID, I have enclosed a copy ofthe latest master plan for the project. The surveying firm of
A virom & Associates, Inc, has verified the amount of existing parking within the PID and their seal
attests to same, Attached to the survey is a breakdown which indicates the existing buildings and
uses, the calculation of their required parking, parking provided, and parking utilized out of the
common parking, This indicates that there are 128 parking spaces remaining in the common area
parking which are not yet allocated towards meeting required parking,
I .:;,~ ( )]d (ikl'l ~11i dll'l' [~\ IOllL ~(!il,-' II)i,. \\ v..,t )>;dlll Ht..:,h:h, ~ I 1, l,-1()y-).: 71)
i\J )111 h;..;\l4(,"'11 . f;i\ ::,I'l_h~\)_':';:,';;l! . j rn,til \\i!isti'n\\la'dtl\i!.l"IIIll
Mr. Mike Rumpf
May 21,2003
Page 2
Submitted herewith are also applications for revisions to the use list for the Boynton Commerce
Center PID, as well as four (4) easement abandonment applications necessary to accommodate the
proposed site plan. These requests are submitted to run concurrent with the site plan approval for
the new building on lot 3B.
Please feel free to call with any questions you may have or if you need any additional information.
Sincerely,
r;i?(k'l!rc{d~
v Joni Brinkman, AlCP
Project Planner
cc: Seth Wise, Levitt Commercial, LLC
Kevin Carroll, Levitt Commercial, LLC
City Codes Accessed Via Website
www.bowton-beach.or!!
~.amle!Za1.comlboYnton beach fl
CITY OF BOYNTON BEACH, FLORIDA
PLANNING & ZONING DIVISION
SITE PLAN REVIEW APPLICATION FOR
NEW SITE PLANS & MAJOR MODIFICATIONS TO EXISTING SITE PLAN
Has applicant attended a pre-application meeting? yes
Date April 14. 2003
This application must be filled out completely, accurately and submitted as an original to the Planning and
Zoning Division. TWELVE COMPLETE, sequentially numbered, ASSEMBLED AND STAPLED sets of plans
including a recent survey and appropriate fee shall be submitted with the applicati<?1'! for the initial p~~oL~
the Site Plan Review procedure. AN INCOMPLETE SUBMITTAL WILL NOT BE P~C~~[):': I '-,-l
Please print legibly (in ink) or type all information. I - --- . .
I MAY? I
I. GENERAL INFORMATION i
L
1,
Project Name: Boynton Commerce Center Lot 3B
PlA'
~8~; '. _ _____ .-'
2. Property Owner's (or Trustee's) Name: Nayrot Realty, Inc.
Phone:
4444 Ste Catherine W #100,
H.:lZ 1R2 Canada
514-938-1050
Westmount QC
(Zip Code)
Fax:514-938-9575
Address:
3. Applicant's name (person or business entity in whose name this application is made):
Levitt Commercial, LLC
Address: 4150 S.W. 28th Way, Ft. Lauderdale, FL
Phone:
954-585-2900
Fax: 954-585-2901
If contract purchaser, please attach contract for sale and purchase.
4. Agent's Name (person, if any, representing applicant): Winston Lee, ASLA, AICP
winston Lee & Associates, Inc.
West Palm Beach, FL
(Zip Code)
561-689-5559
33409
Address: 1532 Old Okeechobee Rd. #106,
Phone: 561-689-4670
Fax:
5. Correspondence to be mailed to agent only; if no agent, then to applicant unless a substitute
is specified below:"
"This is the one address to which all agendas; letters and other materials will be mailed.
6, What is applicant's interest in the premises affected? (owner, buyer, lessee, builder, developer,
contract purchaser, etc.) contract purchaser
7. Street address of location of site:
xxxx Corporate Drive
8.
Property Control #(PCN)
08-43-45-32-14-003-0020
9.
Legal description of site:
See attached Exhibit "A"
10.
Intended use(s) of site:
Liqht industrial uses Coer us~ listl
with ancillarv offic~ ann r~tail
SEE ATTACHED EXHIBIT "B" FOR DEVELOPMENT TEAM
11.
Architect:
12. Landscape Architect:
13. Site Planner:
14. Engineer:
15. Surveyor:
16. Traffic Engineer:
17. Has a site plan been previously approved by the City Commission for this property?
Yes
II. SITE PLAN
The following information must be filled out below and must appear, where applicable, on all copies of
the site plan.
1. Land Use Category shown in the Comprehensive Plan: Industrial
2. Zoning District: PID - Planned
3. Area of Site 4 . 3
4. Land Use - Acreage Breakdown:
Industrial Development
acres 188.698.:':.
sq. ft.
a. Residential, induding - 0 - acres - 0 -
surrounding lot area of grounds
b. Recreation Areas' - 0 - - 0 -
acres
(excluding water area)
Water Area - 0 - - 0 -
c. acres
% of site
% of site
% of site
d.
Commercial - 0 - acres 0 - % of site
-
Industrial 4.3 acres 100 % of site
Public/Institutional - 0 - acres - 0 - % of site
Public, Private and Canal rights-of-way - 0 - acres - 0 - % of site
Other (specify) - 0 - - 0 - % of site
acres
Other (specify) 0 acres - 0 - %of
site
e.
f.
g.
h.
i.
j . Total area of site 4. 3 3 + acres 1 0 0 % of site
'including open space suitaDte for outdoor recreation, and having a minimum dimension of 50 ft.
by 50ft.
5. Surface Cover
a.
b.
c.
courts.
site
d.
e.
Ground floor building-----J-..1....--
area ("building footprint")
- 0-
34
% of site
acres
- 0 -
% of site
acres
Water area
Other impervious areas, including paved area of public & private streets, paved area of parking
lots & driveways (excluding landscaped areas), and sidewalks, patios, decks, and athletic
2.0 acres 46.52 %of
Total impervious area
3.55
82.56
% of site
acres
Landscaped area . 08 acres 1 . 87 % of site
inside of parking lots (20 sq.ft. per interior parking space required - see Sec. 7.5-35(g) of
Landscape Code).
f.
Other landscaped areas, . 67
15.59
% of site
acres
g. Other pervious areas, including golf course, natural areas, yards, and swales, but excluding
water areas 0 acres () % of site
h. Total pervious areas . 71) acres 1 7. 45 % of site
i.
Total area of site
4.3
100
% of site
acres
6. Floor Area
a. Residential - 0 - sq. ft.
b. Commercial/Office - 0 - sq. ft.
c. IndustriallWarehouse S7, 748 sq. ft. w/14,434 mezzanine
d. Recreational - 0 - sq. ft.
e. Public/Institutional - 0 - sq. ft.
f. Other (specify) - 0 - sq. ft.
g.
h.
Other (specify)_ 0-
Total floor area 72,174
sq. ft.
sq. ft.
(includes mezzanine)
7. Number of Residential Dwellina Units N / A
sq. ft.
a.
Single-family detached
b.
Duplex
Multi-Family (3 + attached dwelling units)
Efficiency
1 Bedroom
2 Bedroom
3+ Bedroom
sq. ft.
c.
(1)
(2)
(3)
(4)
d.
dwelling units
dwelling units
dwelling units
dwelling units
dwelling units
Total multi-family
e. Total number of dwelling units
8. Gross Density N / A dwelling units per acre
9.
Maximum height of structures on site ? R
feet
stories
1
10. Reauired off-street Darkina
a.
Calculation of required # of
off-street parking spaces.
Off-street parking spaces
provided on site plan
=
106
7')
1 R
196
Retail 21,132 @ 200
Industrial 3S.QR1 ~ SOO
Mezzanine 14.434 ~ ROO
=
=
b.
Calculation of required #
of handicap parking spaces
Number of handicap
spaces provided on site plan
=
REPRESENTATIVE OF THE PROJECT MUST BE PRESENT AT ALL
TECHNICAL REVIEW COMMITTEE, PLANNING AND DEVELOPMENT
BOARD OR COMMUNITY REDEVELOPMENT AGENCY (CRA) AND CITY
COMMISSION MEETINGS HELD TO REVIEW THIS PROJECT.
RIDER TO SITE PLAN APPLICATION
The undersigned as applicant for Final S~e Plan Approval does hereby acknowledge, represent and agree that
all plans, specifications, drawings, engineering, and other data submitted with this application for review by the
City of Boynton Beach shall be reViewGd by the various boards, commissions, staff personnel and other parties
designated, appointed or employed by the City of Boynton Beach, and any such party reviewing the same shall
rely upon the accuracy thereof, and any change in any item submitted shall be deemed material and
substantial.
The undersigned hereby agrees that all plans, specifications, drawings, engineering and other data
which may be approved by the City of Boynton Beach, or its boards, commissions, staff or desfgnees shall be
constructed in strict compliance with the form in which they are approved, and any change to the same shall
be deemed material and shall place the applicant in violation of this application and all approvals and permits
which may be granted.
The applicant agrees to allow the City of Boynton Beach all rights and remedies as provided for by the
applicable codes and ordinances of the City of Boynton Beach to bring any violation into compliance, and the
applicant shall indemnify, reimburse and save the City of Boynton Beach harmless from any cost, expense,
claim, liability or any action which may arise due to their enforcement of the same.
READ, ACKNOVVLE ED AND AGREED TO this ~ day of M. A Y , 2001
~.5ft7Io3 ~~".eQ
Applicant
lEIIIT'f' L..,....M~I...~ _.J.(or .1$....,....
III. CERilFICATION
(I) (We) understand that this application and all papers and plans submitted herewith become a
part of the permanent records of the Planning and Zoning Division (I) ryve) hereby certify that
the above statements and any statements or showings in any papers or plans submitted
herewith are true to the best of (my) (our) knowledge and belief. This application will not be
accepted unless signed according to the instructions below.
Signature of Owner(s) or Trustee, of
Authorized Principal if property is owned by
a corporation or other business entity.
Date
OR /?/J
~~
Signatu e contract purchaser (if applicant)
\.IC'I \'\t' c......._"c,,,c........~ (.r <<0"'5'"'
AUTHORIZATION OF AGENT
5 (/ '7/0'3
Date
IV.
I.rJ~ ~/}"di~
Si ture of Auth9rized Agert ..1
by- "-~e. D~ L()f.1'::;-b" Gzt> ~ f...lS~('l: Ir-,c,
(I) ryve) hereby designate the above-signed person as (my) (our) authorized agent in regard to
this application.
:';-.jCl03
Date
Signature of Owner(s) or Trustee,
_or Authorized Principal if property is owned
_by a corporation or other business entity.
Date
OR
Signature of contract purchaser (if applicant)
Date
A REPRESENTATIVE MUST BE PRESENT AT ALL TECHNICAL REVIEW
COMMllTEE, PLANNING AND DEVELOPMENT BOARD OR COMMUNITY
REDEVELOPMENT AGENCY (CRA) AND CITY COMMISSION MEETINGS HELD TO
REVIEW THIS PROJECT.
VJ
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Exhibit "B"
Boynton Commerce Center Lot 3B
Development Team/consultants
Prooerty Owner:
Nayrot Realty, Inc.
4444 Ste Catherine W #100
Westmount QC H3Z 1 R2
Phone 514-938-1050
Fax 514-938-9575
Contract Purchaser:
Levitt Commercial, LLC and/or its
successors or assigns
4150 SOW. 28th Way
Fort Lauderdale, FL 33312
Attn: Seth Wise
Phone 954 585-2900
Fax 954-585-2901
Architect:
Juan Riesco, AlA
Riesco Architects
500 S.E, 15th Street, Suite 118
Ft. Lauderdale, FL 33316
Phone 954-832-9028
Fax 954-832-9313
Construction Mat.:
Orlando Sharpe
Jose Arenal
Sharpe Project Development, Inc.
500 S.E. 15th Street, Suite 108
Ft. Lauderdale, FL 33316
Phone 954-832-9095
Fax 954-832-9096
Aaent:
Winston Lee & Associates, Inc.
1532 Old Okeechobee Road, #106
West Palm Beach, FL 33409
Phone 561-689-4670
Fax 561-689-5559
Engineer - Traffic
Yvonne Ziel, P.E.
Yvonne Ziel Traffic Consultants
11440 86th Street North
West Palm Beach, FL 33412
Phone 561-624-7262
Fax 561-624-9578
Enaineer - Civil:
Sun-Tech Engineering, Inc.
1600 West Oakland Park Blvd.
Fort Lauderdale, FL 33311
Bill Fenno, P.E.
Phone 954-777-3123
Fax 954-777-3114
Survevor:
John Doogan
Avirom & Associates, Inc.
50 S,w, 2nd Avenue
Boca Raton, FL
Phone 561-392-2594
Fax 561-394-7125
Landscaoe Architect:
Carter & Assoc., Landscape Architects, Inc.
74 N.E. 5th Avenue
Delray Beach, FL 33483
Daniel Carter
Phone 561-272-9621
Fax 561-266-9918
OS/20/2003 11:24
5515895"~9
'.,INSTOt1 LEE AS?"
PAGE 02
--- -----
III. CERTIFICATION
(I) ryve) understand that this application and all papers and plans submitted herewith become a
part of the permanent records of the Planning and Zoning Division (I) (We) hereby certify that
the above statements and any statements or showings in any papers or plans submitted
herewith are true to the best of (my) (our) knowledge and belief. This application will not be
accepted unless signed according to the instl'1.lCtions below.
Signature of Owner(s) or Trustee. of
Authorized Principal if property is owned by
a corporation or other business entity.
Date
5(/1(0:3
Date
IV.
~~~. 5'ICl'.o~
ture of Author~ Agent I _ L .11 _ I Date
or rep. o-t- Wirctl1'f'YJ ee.'-If+5')Ci!. h.<!.-
(1) ryve) hereoy designate the above-signed person as (my) (our) authorized agent in regard to
this application,
Signature of Owner(s) or lrustee.
.or Authorized Principal if property is owned
_by a corporation or other business entity.
Date
5/;1/03
!Date
Signa re of co')\ract purchaser (if applicant)
. Kellin U:!rro/{ :~j
kvi-H- ~1nrn.Ut!..la:z LLC...
A REPRESENTATIVE MUST BE PRESENT AT ALL TECHNICAL REVIEW
COMMITTEE, PLANNING AND DEVELOPMENT BOARD OR COMMUNITY
REDEVELOPMENT AGENCY (eRA) AND CITY COMMISSION MEETINGS HELD TO
REVIEW THIS PROJECT.
Sun-Tech Engineering, Inc.
1600 West Oakland Park Boulevard
Fort Lauderdale, FL 33311
(954) 777-1121; Fax (954) 777-lt 14
E-mail: suntech@suntechengineering.nlffi
Engineers 0 Planners 0 Surveyors
Boynton Commerce Center
Enqineer's Certification
I c.. L. .
~.
"--.-.-
The drainage system as shown on Stormwater Management Plan for the Boynton
Commerce Center project, located at the southwest corner of 1-95 and Woolbright
Road, has been designed in accordance with the South Florida Water Management
District (SFWMD), Lake Worth Drainage District (LWDD) and City of Boynton Beach
codes and standard criteria.
Once the site plan is approved, final engineering plans will be completed and
processed through the SFWMD, LWDD and the City of Boynton Beach. The project is
located within an approved conceptual permitted area and the existing permit will be
modified for construction of this project. One-half inch of runoff will be retained in
exfiltration trench prior to outfall into the existing on-site lake. The perimeter and
finished floor elevations will be set at the 25 year and 100 year - 3 day storm events
respectively. The overall project has a control structure which outfalls into the L-1
canal owned and maintained by the LWDD. This connection to the canal provides
legal positive outfall. All structures which outfall into the lake will have pollution
retardent baffles which will prevent the oils and greases from entering into the lake.
Based on the above, I hereby certify that the design of the surface water management
system is in substantial conformance with the SFWMD, LWDD and City of Boynton
Beach codes and standards and I hereby affix my seal this 21st day May, 2003.
10- ~ L
___._..k__.<::::______: __________________
William M. Fenr,Q, P.E. #43934
I
yv inston
, "_'0
i. A'I...'l.,
':"sociates, Irk'.
LETTER OF TRANSMITTAL
VIA U.S. Mail
DATE: May 22,2003
ATTENTION: Eric Johnson
JOB NO.: 02-030
JOB NAME: Boynton Commerce
Center Lot 3B
I FROM: Joni Brinkman
I
We are sending you the following items via: U.S. Mail
No. of Copies Description
1 Copy of contract to purchase.
Remarks:
For Approval
D Please Comment
For Review and D Reply ASAP
Comment
As Requested D For Signature X For your record D Distribution
.., '\ '
Signed: '-----J.1M
I
l.-
Copy To:
,~
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"I, i _;'."li.";;; ~\." llul! ,\in,,[,);l\\ 1;1.1 <ll,] C_ It'(j
"
.
"
-
OPTION TO PURCHASE REAL ESTATE
This Option to Purchase Real Estate (this "Agreement") is made between Nayrot Realty Ltd" a Florida
limited partnership ("Seller") and Levitt Commercial LLC, a Florida limited liability company ("Buyer"),
joined by Menorah Realty Ltd., a Florida limited partnership ("Menorah").
BACKGROUND
A. Seller is the owner of that certain parcel of land (hereinafter called the "Land") legally
. described as follows:
A portion of Parcel 3B, BOYNTON COMMERCE CENTER, according to
the Plat thereof, as recorded in Plat Book 46, Pages 126 and 127 of the
Public Records of Palm Beach County, Florida, described as follows:
BEGIN at the northwest comer of said Parcel 3B; thence SSs032'20"E,
along the north line of Parcel 3B, a distance of 179.10 feet to a point of
curvature of a curve concave southerly with a radius of 1994.00 feet and a
central angle of ] S013 '3 J": thence southeasterly along the arc of said curve,
634,27 feet to a point on the east line of Parcel 3B and the west right-of-way
line of the Seaboard Airline Railroad; thence S20'00' ] 5"W, along said west
right-of-way line, 136.50 feet; thence NSs032'20"W, 800.1 ] feet to the west
line of Parcel 3B; thence N02021 '32"E, along the said west line, 56.54 feet
to a point of curvature of a curve, concave to the east, having a radius of
525.00 feet to a central angle of 21'4 I '42"; thence along said west line of
said Parcel 3B a distance of 19S.78 feet to the POINT OF BEGINNING.
Said lands lying and situate in Palm Beach County, Florida, containing
167,376 square feet, 3.8424 acres, more or less.
B. Each of Seller and Menorah owns a portion of the following real property (hereinafter
described as "Parcel 3H") legally described as follows:
"Parcel 3H in BOYNTON COMMERCE CENTER according to the Plat thereof, as
recorded in Plat Book 46, Pages 126 and 127, all in the Public Records of Palm
Beach County, Florida."
C. Buyer desires to acquire an option to purchase the Land and a portion of Parcel 3H as shown
on the sketch attached hereto as Exhibit "A" (the "Parking Area"), together with the appurtenant non-
exclusive right to use the drainage easement covering Parcel 3H (the "Drainage Easement"), as created by and
described in that certain Declaration of Restrictions dated as of February 29, 1996, recorded in Official
Records Book 9729, Page 1 874, in the Public Records of Palm Beach County, Florida, as amended by First
Amendment to the Declaration of Restrictions for Boynton Commerce Center Property Owners Association,
Inc., recorded in Official Records Book 9929, Page S07, Public Records of Palm Beach County, Florida
("Declaration").
C:\WJNNT\Profi1es\swlse\Temporary Internet FiJes\OLKC\OPRE-005.doc
,
" .r
D. Seller]s wilhng to grant to Buyer the option to purchase the Land, the Parking Area and the
Drainage Easement (together called the "Property"), upon the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, m consIderation of the premises and their mutual covenants herein, the parties
agree as follows:
J. Grant of ODtion. Seller hereby grants to Buyer the exclusive right and option (the
"Option") to purchase the Property for the purchase price 0
"Purchase Price").
2. DeDosit. Within five (5) business days after execution of this Agreement, the Buyer
shall deposit with Cobb & Ebin P,A. ("Escrow Agent") the cash sum of __(the "First
Deposit"). On or prior to the last day of the Inspection Period (defined below), the Buyer shall
deposit with the Escrow Agent the cash sum of J (the "Second Deposit"), The First
Deposit (and when paid the Second Deposit), together with all interest thereon, and all increases
made thereto under this Agreement, are called the "Deposit". The Escrow Agent shall hold the
Deposit in accordance with this Agreement, and the additional terms set forth on Schedule I attached
hereto. In the event of a closing under this Agreement, the amount ofthe Deposit paid to Seller shall
be credited toward the Purchase Price.
3. Exercise ofOotion. The Buyer may exercise the Option by written notice to Seller
given during the period (the "Option Period") commencing on the first day after the end of the
Effective Date and ending on the date which is the earlier of: (i) fifteen (15) days after the date on
which the Buyer receives the "Approvals" (defined below); or (ii) one hundred eighty (180) days
after the Effective Date, The "Effective Date" is the date on which: (i) both Buyer and Seller have
executed and delivered this Agreement to each other; and (ii) the Buyer has paid the Deposit to the
Escrow Agent.
4. Termination bv Buyer. The Buyer shall have the right to terminate this Agreement at
any time upon written notice to Seller and the Escrow Agent.
(a) If the Buyer properly terminates this Agreement on or before the last day of
the Inspection Period, the Escrow Agent shall refund the Deposit to the Buyer, and this Agreement
shall terminate,
(b) If the Buyer has not properly terminated this Agreement, and fails to pay the
Second Deposit to Escrow Agent on or before the last day ofthe Inspection Period, this Agreement
shall terminate automatically, and Escrow Agent shall pay the First Deposit (plus any interest
thereon) to Buyer.
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.:
(c) If Buyer has not properly terminated this Agreement, and pays the Second
Deposit to the Escrow Agent on or before the last day of the Inspection Period, then this Agreement
shall continue in effect, and Escrow Agent shall pay the Seller the entire Deposit (i.e. ...-
plus any interest thereon), as fully earned consideration for the Option, and the amount paid to Seller
thereafter shall be "Nonrefundable" (i.e., it shall not be refunded to Buyer for any reason other than a
subsequent proper termination of the Agreement (i) as a result of Buyer's election to terminate this
Agreement prior to the end of the Option Period if Buyer does not obtain Approvals, (ii) solely by
reason of the failure of Seller to deliver title to the Property as required by this Agreement, (iii) a
termination of this Agreement as a result of a condemnation~of'all or any portion of the Property, OJ
(iv) Seller's breach of its obligations under this Agreement).
5. Inspection Period.
(a) At or prior to execution of this Agreement, the Seller has furnished to the
Buyer the items (together called the "Due Diligence Items") which are described on Exhibit B
hereto, which pertain to the Property and/or adjacent property owned or formerly owned by Seller or
its affiliates.
(b) Buyer shall review the Due Diligence Items and such other items as it deems
appropriate during the period (the "Inspection Period") ending May 17,2003, During the Inspection
Period, Buyer may obtain a title insurance commitment and survey for the Property at its own
expense. If Buyer does not terminate this Agreement on or prior to the last day of the Inspection
Period, Buyer shall be conclusively deemed to have accepted all matters as to the Property which are
disclosed by or reflected in the Due Diligence Items, and all matters which would be shown by a
proper search ofthe public records as to the Property as of the Effective Date, or by a proper survey
of the Property (all such matters are collectively herein called the "Permitted Exceptions").
(c) At Closing, Seller shall deliver to Buyer a Declaration of Easements,
Covenants and Restrictions in the form of Schedule II hereto to be recorded by Seller at or prior to
closing (the "Turning Easement"). The Turning Easement shall be a Permitted Exception. The
Seller shall use good faith and diligent efforts to obtain agreements to grant partial releases of the
mortgage of record from the portion of the Parking Area owned by Menorah, and consents of the
mortgagees of record to the Turning Easement (such agreements for partial releases and consents are
together called the "Mortgagee Consents"). In the event that Seller notifies Buyer in writing that
Seller will agree to obtain the Mortgagee Consents prior to Closing (any such notice is called a
"Seller Notice"), then Seller shall be required to deliver the Mortgagee Consents at Closing, In the
event that on or before the date which is 45 days after the Effective Date Seller has not obtained the
Mortgagee Consents or given a Seller Notice, then either party shall have the right to terminate this
Agreement upon written notice to the other, whereupon the Deposit shall be returned to Buyer and
the parties released of all further obligations to close under this Agreement. In the event that Seller
does not obtain the Mortgagee Consents or give a Seller Notice prior to the date which is 45 days
after the Effective Date, and neither party terminates the Agreement pursuant to this paragraph, the
Mortgagee Consents shall be a condition of Closing, failure of which shall entitle either party to
3
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tenninate the Agreement, whereupon Escrow Agent shall pay the Deposit to Buyer and the parties
shall be released of all further obligations to close under this Agreement.
6. Closing. The purchase and sale of the Property shall close at Buyer's attorney's office
on a date (the "Closing Date"), which is the earlier to occur of such date as Buyer may designate on
five (5) business days' notice to Seller or fifteen (J 5) business days after Buyer's exercise of the
Option.
7. Closing Items.
(a) Buver's Closing Items. Seller shall receive from Buyer the following items at
Closing:
(i) a closing statement duly executed by Buyer, showing payment to Seller
of the Purchase Price, as reduced by the amount of the Deposit and interest thereon which is paid to
Seller, and further adjusted only by the costs and prorations shown on Exhibit C hereto; and
(ii)
the Closing Statement.
payment to Seller in cash of the net proceeds due to Seller as shown on
(b) Seller's Closing Items. Buyer shall receive from Seller the following items at
Closing:
(i) Seller shall execute and deliver to Buyer deJiver a statutory warranty
deed to the Property, less and except the portion of the Parkmg Area which is owned by Menorah
(the "Menorah Property") as to which Seller shall deliver a statutory warranty deed from Menorah,
the Closing Statement, a seller's affidavit in customary form, a non-foreign affidavit, the title
clearance documents Seller agrees to provide and such other closing documents as are customary or
required by this Agreement;
(ii) Seller shall satisfY all requirements of the Buyer's title commitment
which pertain to Seller's organization and authority to sell the Property and payment of existing liens
and documentation to delete the gap, mechanics' lien and party in possession exceptions in the
Buyer's title policy;
(iii) Buyer's title search of the Property from the Effective Date (or the
effective date of Buyer's title commitment. if later) through the Closing Date shall show no matter
first recorded after the Effective Date which renders title unmarketable under standards promulgated
by The Florida Bar (a "Title Defect"), or if any Title Defect appears of record, the Seller shall have
cured such Title Defect;
(iv) The Turning Easement which shall be executed by Seller; and
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(v) the Mortgagee Consents.
(c) The parties shall pay the Closing expenses as provided on Exhibit C attached
hereto and made a part hereof.
8. Title Defects. Seller shall have the obligation to cure any Title Defect ('Required
Cure Items") which consists of (i) any exception for the gap, mechanics' lien or parties in possession,
(ii) taxes and assessments for all years prior to Closing, (iii) evidence of Seller's good standing and
authority, and (iv) any lien or other encumbrance for a liquidated sum not in excess of the net closing
proceeds payable to Seller, or which consists of any other encumbrance created voluntarily by Seller
without Buyer's consent. Seller shall have the right, but not the obligation, to cure any Title Defect
which is not a Required Cure Item. Seller may extend the closing for up to ninety (90) days to
enable any cure. If Seller fails to cure any Title Defect, the Buyer's sole rights shall be to either
tenninate this Agreement and recover the Deposit plus all accrued interest thereon, or to proceed to
closing without reduction in the purchase Price for any such Title Defect and Buyer may treat Seller
in default for failure to provide any Required Cure Item. In the event that there is a Title Defect
created from and after the Effective Date which is not created by or through the acts of Seller, then if
Seller is unable to cure such Title Defect, Buyer's sole remedy be either to waive in writing the Title
Defect and proceed to Closing or to elect to tenninate this Agreement upon written notice to Seller,
whereupon the Deposit shall be returned to Buyer and the parties released of all further obligations
each to the other under this Agreement.
9. The Prooertv. The Property shall include: (i) all and singular the rights, privileges,
advantages, and appurtenances belonging or in anywise appertaining to the Property; (ii) the Seller's
interest in any easements in or upon the Property, and in rights of ingress and egress thereto; (iii) the
Seller's interest in any and all utility capacity which benefits the Property, if any (and to the extent
transferable), including, without limitation, water, drainage (via the existing recorded drainage
easement only), and sanitary sewer, and other utility capacities and rights relating thereto; (iv)
Seller's respective rights, titles and interests in and to all permits, approvals, vesting, zoning and
utility capacity applications, if any (and to the extent transferable), made to any governmental
authority and all other inchoate rights affecting or applicable 10 the Property (including, without
limitation, any fees relating thereto and the benefits resulting therefrom); (v) use and control of the
surface of the Property free and clear of the rights of the owners of any mineral interests or the
lessees of any lease relating to the Property; and (vi) Seller's interest in any impact fees previously
paid for the benefit of the Property.
10. Representation. Seller warrants and represents to Buyer that Seller is the owner of the
Property (except the portion of the Parking Area owned by Menorah) and that Seller has full right,
authority and power to execute this Agreement without the joinder or consent of any other party.
Except as set forth in the deed and seller's affidavits delivered at closing, Seller makes no other
representation or warranty whatsoever, and the Property is sold As-is, except as set forth in this
Agreement and in the closing documents.
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1 I. Use of the Property. Within sixty (60) days after the Effective Date:
(a) Buyer shall commence all actions necessary and proper to apply to
appropriate governmental authorities for any necessary change to the applicable comprehensive land
use plan, any applicable change in zoning of the Property, site plan approval, and for all other
approvals and permits desired by Buyer to develop the Property as a mixed use commercial project
consisting of not more than 60,000 square feet of ground Door area of retail, office, showroom and/or
warehouse space based on a plan of development conceptually consistent with Exhibit D attached
hereto and made a part hereof, and upon terms acceptable to Buyer (the "Intended Use") (the
comprehensive plan, site plan approval and zoning changes and other governmental approvals
necessary to enable such development after the expiration of all appeal periods are hereinafter called
lhe "Approvals"). Buyer shall diligently pursue obtaining the Approvals substantially in accordance
with the schedule set forth on Exhibit E attached hereto and made a part hereof ("Approval
Schedule"). In connection with processing the Approvals, the Buyer shall not apply for a rezoning of
the Property unless such rezonmg can be accomplished within the Approval Schedule set forth
above.
(b) Upon Buyer's written request, Seller agrees to reasonably cooperate with
Buyer and all appropriate governmental authorities, at no material cost or risk to Seller, in Buyer's
efforts to obtain the Approvals. Notwithstanding the foregoing, Seller shall not be required to
execute any application for change of comprehensive plan or zoning of the Property which in any
way changes, restricts or limits the uses of the Property which are permitted under its existing zoning
classification, unless and until th'-- Deposit has been paid to Escrow Agent and Buyer has
acknowledged in writing that:
(i) Buyer is in compliance with Section 1 lea) of this Agreement.
(ii) Buyer acknowledges that in the event Buyer exercises the Option, there
are no conditions to Buyer's obligation to close purchase of the Property other than those set forth in
Section 4(c) of this Agreement.
(iii) Buyer hereby waives any and all Title Defects ofrecord through the
Effective Date other than any Required Cure ltems, Seller's delivery of the closing documents
contemplated by this Agreement and any other matters as to which Seller has agreed in writing to
attempt to cure.
(c) Buyer's failure to obtain any or all Approvals (excluding building permits)
shall entitle Buyer to terminate this Agreement prior to the end of the Option Period, and the parties
acknowledge that the Buyer's obligations under this Agreement are contingent upon Buyer obtaining
the Approvals (excluding bui]dmg permits) and the expiration of all appeal periods with respect
thereto, and in the event such Approvals (excluding building permits) have not been obtained and all
appeal periods have expired with respect to such Approvals, then Buyer will have the right to
terminate this Agreement upon written notice to Seller on or before the expiration of the Option
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Period, whereupon this Agreement would terminate, the Deposit would be returned to Buyer and,
except as provided in Section 21 below, the parties released of all further obligations each to the
other under this Agreement. In the event Buyer does not elect in writing to terminate this Agreement
prior to the end of the Option Period, then Buyer shall be deemed to have exercised the Option.
12. Entry. Seller does hereby grant permission to Buyer to aJlow Buyer and its agents to
enter upon the Property at reasonable times in order to satisfy itself as to aJl its requirements with
regard to property development, including, but not limited to: surveying, soil tests, environmental
testing, utilities verifications, etc. Buyer shall indemnify and hold Seller harmless from all claims
and losses whatsoever which result from entry upon the Property by Buyer or its agents (but shall not
indemnify as to any existing condition on the Property such as hazardous waste located thereon), and
such indemnity shall survive any termination of this Agreement.
13. Assignment. Buyer may not assign this Agreement or the Option without Seller's
consent not to be umeasonably withheld or delayed, except Buyer may assign this Agreement and/or
the Option (without Seller's consent) to its own subsidiary or affiliated entity (i.e" any entity in
which BankA tlantic Bancorp or Levitt Companies, LLC shaJl (directly or indirectly) have a 30% or
greater interest. At Closing Buyer may assign this Agreement to any designee designated by Buyer
without Seller's consent.
14. Time of Essence. Time is of the strictest essence of each provision ofthis Agreement.
15. Recording. Buye1. shall no~'ecord this Agreement or any memorandum or notice
hereof in the public records of Palm Beach County, Florida, and upon any such recording this
Agreement shall at Seller's option be null and void, and the Deposit shaJl be paid to or retained by
Seller.
16. Brokers, Each party represents that it has not engaged or dealt with any broker on this
transaction. The provisions of this paragraph shaJl survive Closing.
17. Notices. Any notices, requests or other communications required or permitted to be
given hereunder shall be in writing and shall be delivered by hand, facsimile transmission or a widely
recognized national overnight courier service or mailed by United States registered or certified mail,
return receipt requested, postage prepaid and addressed to each party at its address as set forth below:
To Seller:
NAYROT REALTY LTD.
c/o Dalfen America Corp.
4444 Ste-Catherine ouest, Suite 100
Westmount, Quebec H3Z ]R2
Phone: (514) 938-]050
Fax: (514) 938-9575
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and to Buyer:
Seth M. Wise, President
Levitt Commercial, LLC
4150 S,W. 28th Way
Fort Lauderdale, FL 33312
Phone: (954) 585-2900
Fax: (954) 585-2901
Rejection or other refusal to accept or inability to deliver because of changed address of
which no notice was given shall be deemed to be receipt of the notice, request or other
communication. By giving at least five (5) days prior written notice thereof, any party may from
time to time at any time change its mailing address hereunder. Notice shall be deemed delivered (i)
when sent by facsimile transmission, (ii) when received ifhand delivered, (iii) one business day after
being sent by overnight courier service, or (iv) three (3) days after sent by mail.
18. Binding. This Agreement shall be binding upon each party and its successors and
pennitted assigns.
19. Condemnation, In the event there is a condemnation of all or any portion of the
Property, either party may elect to cancel this Agreement upon written notice to the other, whereupon
this Agreement shall tenninate, the Deposit shall be returned to Buyer and the parties released of all
further obligations each to the other under this Agreement, except as provided in Paragraph 21.
20. Seller Default. In the event Seller shall breach its obligations under this Agreement
and such default is not cured within five (5) days after written notice from Buyer to Seller specifying
such breach, then Buyer shall have the right to tenninate this Agreement upon written notice to
Seller, whereupon the Deposit together with interest thereon shall be returned to Buyer and the
parties released of all further obligations each to the other under this Agreement or Buyer shall have
the right to an action for specific perfonnance.
21. Buver Default. In the event Buyer shall breach its obligations to close under this
Agreement and such default is not cured within five (5) days after written notice from Seller to Buyer
specifying such breach, then the Seller shall have the right to tenninate this Agreement, whereupon
Escrow Agent shall deliver the Deposit together with interest thereon to Seller as agreed upon and
liquidated damages in lieu of any and all other rights or remedies, and the parties shall be released of
all further obligations each to the other under this Agreement. The parties recognize that the ability
to measure the damages to be suffered by Seller are difficult to calculate and have agreed to this
agreed and liquidated damage provision.
22. Dispute. In the event of a dispute with respect to this Agreement the prevailing party
shall be entitled to recover reasonable attorney's fees and court costs through all trial and appellate
levels in an amount not to exceed Twenty-Five Thousand Dollars ($25,000).
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23. ComDutation of Time. In the event that the date for performance shall fall on a
Saturday, Sunday or legal holiday, then the date for performance shall be extended to the next
business day thereafter occurring.
24. Negotiated Contract. The provisions of this Agreement have been ajoint effort of the
parties and the resulting document shall not, solely as a matter of judicial construction, be construed
more severely against one of the parties than the other.
25. Modification, This Agreement shall not be modified (and no purported modification
thereof shall be effective) unless in writing and signed by the party to be charged.
26. Counterparts. This Agreement may be executed in one or more counterparts each of
which shall be deemed to be an original but all of which shall constitute one and the same agreement.
27. Facsimile Transmission. Signatures of the parties to this Agreement or any
modification thereof shall be deemed to be an original signature.
28. Acceotance. Seller's offer represented by this Agreement shall expire automatically
and without notice or action of any party unless that offer is accepted unconditionally by Buyer's
execution and delivery of this Agreement to Seller on or prior to March 19,2003.
IN WITNESS WHEREOF, the parties have caused these presents to be executed.
[SIGNA TURES ON NEXT PAGES]
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WlTNESSES:
SELLER:
NA YROT REALTY LTD.,
a Florida limited partnership
By: Dalfen Boynton n Enterprises Inc.
Print Name:
By:
Print Name:
Print Title:
Print Name:
Date: March ,2003.
]0
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JOINDER
Menorah Realty Ltd.joins in this Agreement for the purpose of agreeing to deliver to Buyer at Closing
the statutory warranty deed to the Menorah Property, pursuant to section 7 (b) (i), and to comply with the
requirements of Subsections 7 (b) (ii) and (iii) as they apply to the Menorah Property only.
Menorah Realty, Ltd., a Flonda limited
partnership
By: Dalfen Boynton Enterpnses Inc., a
Canadian corporation, as its general
partner
By:
Print Name:
Print Title:
]]
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j@
ACCEPTED this ~ day Of~, 2003.
WITNESSES:
LEVITT COMMERCIAL, LLC., a Florida
limited liability company
rc,,-
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Seth Wise, President
By:
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12
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.
JOINDER OF ESCROW AGENT
Escrow Agent hereby agrees to the terms of this Agreement which are applicable to it,
subject to the terms ofScheduJe 1 hereto.
COBB & EBlN P.A., a Florida
professional service corporation
By:
Thomas C. Cobb
President
13
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SCHEDULE]
General Conditions of Escrow
I) Genuineness of Notice. The Escrow Agent may act in reliance upon any writing or instrument
or signature which it in good faith believes to be genuine, may assume the validity and accuracy of any
statement or assertion contained in such a writing or instrument, and may assume that any person who gives
any writing, notice, advice or instructions in connection with the provisIOns hereofhas been duly authorized to
do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correcmess as to form,
manner and execution, or validity of any instrument deposited in this escrow, nor as to the identity, authority or
right of any person executing the same. Escrow Agent shall notiry the parties at least ten (10) days prior to
disbursal of the escrow (other than the disbursal at the consummation of the Closing).
2) Indemnification. Except for any claim caused solely by the Escrow Agent's gross negligence
or willful misconduct, the parties hereby agree, jointly and severally, to indemniry the Escrow Agent and hold
it harmless trom any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expense, fees or charges of any character or nature, which it may incur or with which it may be
threatened by reason of its actmg as Escrow Agent hereunder, and in connection therewith, to indemniry the
Escrow Agent against any and all expenses, including anomey's fees and the costs of defending or appearing
in any action, suit or proceeding or resisting any claim.
3) Interoleader. ]1' anyone or more parties shall be in disagreement about the interpretation of
this Escrow Agreement, about their rights and obligations hereunder, or about the propriety of any action
contemplated by the Escrow Agent hereunder, the Escrow Agent may file an action in interpleader to resolve
said disagreement. The Escrow Agent shall be indemnified for all costs, including reasonable anorney's fees,
in connection with the aforesaid interpleader action, and shall be fully protected in suspending all or a part of
its activities hereunder until a final judgment in the interpleader action is received.
4) Resignation. The Escrow Agent may resign upon ten (10) days' wrinen notice to the parties
hereto. If a successor escrow agent IS not appointed within this ten (10) day period, the Escrow Agent or any
party may petition the court to name a successor.
5) Dual Status. The Buyer acknowledges that Escrow Agent is counsel to Seller and agrees that
in the event of a dispute hereunder, the Buyer shall not assert that Escrow Agent is barred tram representing
itselfand/or Seller by reason of Escrow Agent's dual status.
6) No Third PartY Benefit. This Escrow Agreement is made for the sole protection of the parties
hereto and their respective successors and assigns, and no other person may rely hereon or claim benefit
hereunder.
7) Modification and Waiver. No provisions of this Escrow Agreement shall be amended, waived
or modified except by an instrument in writing signed by the parties hereto.
8) No ]molied Duties. The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein and no Implied duties or obligatIOns shall be read herein against the Escrow Agent.
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ThIS insrrumenl pr~par~d by.
Thomas C. Cobb, Esq
Cobb & EbinP.A.
825 Brickell Bay Drive
Su;t~ 164~
Miami. Florida JJIJI
SCHEDULE]
. Declaration
DE CLARA TION OF NONEXCLUSIVE EASEMENTS, COVENANTS
AND RESTRICTIONS RUNNING WITH THE LAND
THIS DECLARA T]ON, of Nonexclusive Easements, Covenants and Restrictions Running
With The Land ("Declaration"), made and entered into the _ day of , 2003, is
made by NA YROT REALTY, LTD" a Florida limited partnership ("Declarant") whose address is
4444 Ste-Catherine ouest, Suite ]00, Westmount, Quebec H3Z ]R2.
RECITALS
A Declarant is the owner of those two parcels ofland in Palm Beach County, F]orida,
described as "Parcel 3B" and "Parcel 3C", on Exhibit "A" hereto.
B. Declarant desires to impose an easement and a covenant running with the land:
(i) upon Parcel 3B, for the benefit of the present and future Owners of Parcel 3C; and (ii) upon
Parcel 3C for the benefit of the present and future Owners of Parcel 3B.
DECLARA T]ON
NOW, THEREFORE, in consideration of the premises, the Declarant hereby declares that
Parcel 3B shall hereafter be owned, held and be subject to the following Declaration of Nonexclusive
Easements, Covenants and Restrictions Running with the Land:
1. Definitions. Terms used as if defined, but which are not otherwise defined herein,
shall have the meanings attributed to them below:
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1.1 "Loading Dock" means any portion of any structure which is used as a point
of access for motor vehicles to such structure, for the purpose of receiving
cargo from such vehicles into such structure, or for the purpose of loading
cargo from such structure upon such vehicles.
1.2 "Parcel" shall mean either of Parcel 3B or Parcel 3C, as applicable.
].3 "Permittees" shall mean the tenant(s) or occupant(s) of a Parcel, and the
respective employees, agents, contractors, customers, invitees and licensees
of (i) the Owner of such Parcel, and/or (ii) such tenant(s) or occupant(s), and
all other parties acting on behalf of such Owner.
1.4 The "Owner" of a Parcel at any time shall mean the fee simple title holder to
such Parcel at such time,
1.5 "Institutional Mortgage" shall mean any mortgage, deed of trust or similar
instrument held by any bank, savings association, savings bank, insurance
company, pension fund, any entity having a net worth over $10,000,000.00,
which is a first lien on any Parcel, subject only to the lien of real estate taxes
and other liens having equal priority with real estate taxes.
l.6 "Turning Easement Areas" means the southerly 24.5 feet of Parcel 3B ("3B
Turning Easement Area") and the northern 24,5 feet of Parcel 3B ("3C
Turning Easement Area")
2. Easements.
2.1 Grant of Easements. Subject to the express conditions, limitations, and
reservations contained herein, Declarant hereby grants to every present and
future (i) Owner of Parcel 3C a nonexclusive, perpetual easement for
pedestrian and vehicular access, ingress and egress by such Owners of Parcel
3C and their Permittees over and across the 3B Turning Easement Area, and
(ii) Owner of Parcel 3B a nonexclusive perpetual pedestrian and vehicular
access, ingress and egress by such Owner of Parcel 3B and their Permittees
over the 3C Turning Easement Area; so as to provide for the passage of
motor vehicles and pedestrians over and upon all portions of the respective
Turning Easement Areas, and to and from all abutting streets or rights of way
furnishing access to the Turning Easement Areas.
2.2 Reservation. Declarant reserves to every present and future Owner of Parcel
3B (as to the 3B Turning Easement Area) and present and future Owners of
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Parcel3C (as to the 3C Turning Easement Area), the perpetual, nonexclusive
right to use the Turning Easement Areas solely for pedestrian and vehicular
access, ingress and egress by such Owners and their Permittees over and
across the Turning Easement Areas, so as to provide for the passage of motor
vehicles and pedestrians and the parking of motor vehicles over and upon all
portions of the Turning Easement Areas, and to and from all abutting streets
or rights of way furnishing access to the Turning Easement Areas and for all
other uses which do not materially and adversely affect use of the Turning
Easement Areas such as underground drainage and utilities.
2.3 Indemnification. Each (i) Owner ofParcel3C hereunder shall indemnify and
hold harmless the Owner of Parcel 3B; and (ii) Owner ofParcel3B hereunder
shall indemnify and hold harmless the Owner ofParcel3C; from and against
all claims, liabilities and expenses (including reasonable attorneys' fees), to
the extent not covered and paid by insurance policies, relating to accidents,
injuries, loss, or damage of or to any person or property: (x) arising from the
negligent, intentional or willful acts or omissions of such Owner or its
Permittees; or (y) arising from the breach by such Owner or any of its
Permittees of any of its obligations hereunder.
2.4 Reasonable Use of Easements. The easements hereinabove granted shall be
used and enjoyed by each Owner and its Permittees in such a manner so as
not to unreasonably interfere with, obstruct or delay the conduct and
operations of the business of any other Owner or its Permittees at any time
conducted on its Parcel, including, without limitation, public access to and
from said business, and the receipt or delivery of merchandise in connection
therewith.
2.5 Construction of Turning Easement Area. At all times from and after the date
of this Declaration and until completion of the improvements to Parcel3B,
the Parcel 3B Owner shall not block or disturb the existing asphalt pavement
which extends from Parcel3C into the 3B Turning Easement Area, except to
the mimmum extent and for the minimum time, if any, which is necessary for
construction of Buyer's improvements to Parcel 3B. Additionally, on or prior
to the date of the issuance of the certificate of completion of the buildings
contemplated to be constructed on Parcel 3B as shown on the approved site
plan for Parcel 3B, the Owner of Parcel 3B shall promptly fill and compact
the 3B Turning Easement Area to the grade of the existing Parcel 3C
driveways, and shall pave it with asphalt, at the Parcel 3B Owner's sole
expense, and in accordance with lawfully issued building permits,
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2.6 Maintenance of Turning Easement Areas. The Parcel 3B Owner and Parcel
3C Owner each covenant at all times during the term hereof to maintain or
cause to be maintained at its sole expense the Turning Easement Areas
located on the Parcel owned by such Owner in good order, condition and
repair, and in compliance with all applicable governmental requirements,
Such maintenance shall include, without limitation, maintaining and repairing
all the surface of the roadway areas, keeping the Turning Easement Areas free
from equipment, trash receptacles or other obstructions, removing all papers,
debris and other refuse from and periodically sweeping all road areas to the
extent necessary to maintain the same in a clean, safe and orderly condition,
maintaining lines and striping clearly marking the Turning Easement Area in
good condition and repair, and performing any and all such other duties as are
necessary to maintain the portion of the Turning Easement Areas owned by
such Owner in a clean, safe and orderly condition, and in compliance with all
applicable codes and legal requirements. In the event of any damage to or
destruction of all or a portion of the pavement to the Turning Easement
Areas, the Owner causing such damage shall, at its sole cost and expense and
with due diligence repair, restore and rebuild the pavement to its condition
prior to such damage or destruction (or with such changes as shall not
conflict with this Declaration). No Owner shall alter, modify, reconfigure,
relocate, remove, close or block all or any part of the Turning Easement
Areas, including without limitation the driveways and ingress and egress
thereto, to and from the Parcels and adjacent streets and roads, or suffer or
permit any lessee or other party claiming under it to do so, without the
approval of the other Owners, provided each Owner may, without the consent
of any other Owner, (i) make repairs and perform maintenance in such
Turning Easement Areas owned by such Owner, and (ii) may have vehicles
parking in such Turning Easement Areas for a reasonable time and in a
reasonable manner on a temporary basis in connection with loading and
unloading.
"
"
2.7 No Rights in Public; No Imolied Easements. Nothing contained herein shall
be construed as creating any rights m the general public as to the Turning
Easement Areas, or as dedicating for public use the Turning Easement Areas.
3. Successors. This Declaration creates equitable benefits and servitudes upon
Parcel 3B and Parcel 3C, running with the land. This Declaration shall create privity of contract
and/or estate with or among all grantees of all or any part of Parcel 3B and Parcel 3C or any interest
therein, their heirs, admmistrators, successors and assigns.
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4. Violation.
4. 1 In the event of any violation or breach or a threatened violation or breach by
any Owner or occupant of any part of Parcel 3B or Parcel 3C of any of the
terms, covenants and conditions hereof not cured within the cure period set
forth in Section 5.2, any Owner of the other Parcel (i.e.: Parcel 3C as to a
violation on Parcel 3B or Parcel 3B as to a violation on Parcel 3C) shall be
entitled forthwith to full and adequate relief by specific performance,
injunction and such other available legal and equitable remedies for such
breach (but shall not be entitled to punitive damages). All damages, costs
and expenses (but shall not be entitled to punitive damages) of any such suit
or proceeding shall be assessed against the Owner of Parcel 3B or Parcel3C
(as applicable as being in breach of this Declaration) and shall, upon entry of
a final judgment, constitute a lien against Parcel 3B or Parcel 3C (as
applicable as being in breach of this Declaration) until paid, effective upon
recording notice thereof in the office of the Clerk of the Circuit Court in and
for Palm Beach County, Florida, but such lien shall be subordinate to the lien
of any Institutional First Mortgage encumbering any portion of Parcel 3B or
Parcel 3C (as applicable), and any purchaser at foreclosure sale (other than
the Owner of Parcel 3B or Parcel 3C or any affiliate as applicable) or a
grantee of a deed in lieu of such foreclosure under any such Institutional
Mortgage (other than the Owner of Parcel 3B or Parcel 3C, as applicable, or
any affiliate) shall take title free from any such lien, but otherwise shall be
subject to the provisions hereof.
4.2 In addition to all other remedies available at law or in equity, upon the failure
of a defaulting Owner to cure a breach of this Declaration within thirty (30)
days following written notice thereof by an Owner (unless, with respect to
any such breach the nature of which cannot reasonably be cured within such
3D-day period, the defaulting Owner commences such cure within such
30-day period and thereafter diligently prosecutes such cure to completion),
any Owner shall have the right to perform such obligation contained in this
Declaration on behalf of such defaulting Owner and be reimbursed by such
defaulting Owner upon demand for the reasonable costs thereof together with
interest at the prime rate charged from time to time as published in the Wall
Street Journal or equivalent rate (its successors or assigns), plus two percent
(2%) (not to exceed the maximum rate of interest allowed by law).
Notwithstanding the foregoing, in the event of (i) an emergency; or (ii)
violation, blockage or material impairment of the easement rights, an Owner
may immediately cure the same and be reimbursed by the other Owner upon
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demand for the reasonable cost thereof together with interest at the prime
rate, plus two percent (2%), as above described.
4,3 No Tennination For Breach. Notwithstanding anything in the foregoing to
the contrary, no breach hereunder shall entitle any Owner to cancel, rescind,
or otherwise tenninate this Declaration, No breach hereunder shall defeat or
render invalid the lien of any mortgage or deed of trust upon any Parcel made
in good faith for value, but the easements, covenants, conditions and
restrictions hereof shall be binding upon and effective against any Owner of
such Parcel covered hereby whose title thereto is acquired by foreclosure,
trustee's sale, or otherwise.
4.4 lrreoarable Hann. In the event of a violation or threat thereof of any of the
provisions of paragraph 2 or 3 of this Declaration, each Owner agrees that
such violation or threat thereof shall cause the nondefaulting Owner and/or its
Pennittees to suffer irreparable hann and such nondefaulting Owner and its
Pennittees shall have no adequate remedy at law. As a result, in the event of
a violation or threat thereof of any of the provisions of paragraph 2 or 3 of
this DeclaratlOn, the nondefaulting Owner, in addition to all remedies
available at law or otherwise under this Declaration (excluding punitive
damages), shall be entitled to injunctive or other equitable reliefto enjoin a
violation or threat thereof of paragraph 2 or 3 of this Declaration.
4.5 Limitation on Consequential Damages. Notwithstanding any contrary
provision of Section 4. I or 4.4, or any other provision of this Declaration, and
in addition to the exclusions therein for punitive damages: (i) neither the first
purchaser of Parcel 3B from Declarant, nor any of its affiliates ("Exempt
Parties") shall be subject to consequential damages for breach of this
Declaration; and (ii) nothing herein shall limit the availability of
consequential damages for breach of this Declaration against any lessee,
subsequent transferee, or other person or entity which is not an Exempt Party.
5. Tenn. The easements, covenants, conditions and restrictions contained in this
Declaration shall be effective commencing on the date of recordation of this Declaration in the office
of the Clerk of Courts of Palm Beach County, Florida, and shall remain in full force and effect
thereafter in perpetuity, unless this Declaration is modified, amended, canceled or tenninated by the
written consent of all then record Owners ofParce13B and Parcel 3C and the holders of record of all
mortgages upon Parcel3B and Parcel3C (each is a AMortgagee@), in accordance with paragraph 7
hereof.
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6. Modification. The provisions of this Declaration may not be terminated, abrogated,
modified, rescinded or amended, in whole or in part, except in writing signed by all Owners of
Parcel 3C and Parcel3B, and each and every holder of an Institutional First Mortgage encumbering
Parcel 3C and Parcel 3B,
7. Notices. Any notices of other communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand, if
delivered or if delivery is attempted by a nationally recognized overnight courier service such as
Federal Express, or if deposited in the United States mail and forwarded by prepaid certified mail,
return receipt requested, to the recipient at its address set forth above or to such other address as any
party may specify by notice given as herein provided.
8. Governing Law. This DeclaratIon shall be governed and construed under the laws of
the State of Florida.
9. Headings and CaPtions. Headings and captions of this Declaration are for
convenience of reference only and shall not be used to vary or interpret the content of this agreement
or the covenants, representations or warranties set forth herein or limit the scope or provision of any
such section.
10. Attorneys Fees to Prevailing Party. In the event of any breach of this Declaration or
any action, suit or proceeding involving the interpretation or enforcement hereof, the prevailing party
in such litigation shall be entitled to recover from the nonprevailing party reasonable attorneys' fees
and costs, including fees and disbursements in connection with any appeal.
] I. Estoppel. At any time and from time to time (but not more than four requests a year),
each Owner of Parcel 3B or Parcel 3C will deliver to any other Owner of Parcel 3B or 3C who
requests the same a sworn statement in writing certifying that this Declaration is in full force and
effect and unmodified (or if there shall have been modifications, stating such modifications) and
further certifying the names of all parties known to such Owner whose consent is necessary to any
modification hereof, and that such Owner knows of no uncured violation or breach of this
Declaration on the part of the requesting Owner (or if such Owner knows of any such violation or
breach, the nature thereof) and that such Owner is not owed any funds by the requesting Owner
pursuant to this Declaration (or if such is not the case, the amount and nature thereof).
12. No Waiver. Failure by any party to insist upon or enforce its rights under this
Declaration shall not constitute a waiver of such rights or of the benefit of any provision or condition
for its benefit contained in this agreement.
13. Severability. If any term or provision of this Declaration or the application thereof to
any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
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Declaration and the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and
provision of this agreement shall be valid and' enforceable to the fullest extent permitted by law.
IN WITNESS HEREOF, the Declarant has set its hand and seal as of the date first written
above.
NAYROT REALTY, LTD., a Florida Jimited
partnership
By: Dalfen Boynton Il Enterprises Inc" a Canadian
corporation, as its general partner
By:
Print Name: Murray DaJfen
Print Title: President
(SEAL)
COUNTY OF
)
) ss.
)
STATE OF
The foregoing mstrument was acknowledged before me this _ day of ,2003 by
Murray Dalfen, the President of Dalfen Boynton Il Enterprises, Inc., a Canadian corporation, on
behalf of that corporation in its capacity as the general partner of Nayrot Realty, LId" a Florida
limited partnership. He is personally known to me / produced as identification.
Print Name:
NOT ARY PUBLlC
My commission expires:
(SEAL)
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CONSENT OF MORTGAGEE
Mellon United National Bank, the holder of a mongage Instrument encumbering Parcel 38, hereby consents to this
Declaration, and subordinates the lien of its mortgage to the Easements granted on this Declaration.
Dated:
,2003.
Witnesses:
MELLON UNITED NATIONAL BANK,
a national banking association
By:
print name:
print name:
print title:
print name:
STATE OF FLORIDA .
)ss:
COUNTY OF MIAMI.DADE
This instrument was acknowledged before
,as the
banking association, on behalf of that association.
me this _ day of , 2003 by
of Mellon United National Bank, a national
Print Name:
NOTARY PUBLIC
My commission expires:
(SEAL)
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CONSENT OF MORTGAGEE
Principal Life Insurance Company, the holder of a mongage instrument encumbering Parcel 38, hereby consents to this
Declaration, and subordinates the lien of its mongage to the Easements granted on this Declaration.
Dated:
,2003.
Witnesses:
PRlNClP AL LIFE INSURANCE COMPANY,
an Iowa corporation
"
"
print name:
By:
print name:
print title:
print name:
STATE OF FLORIDA
) 55:
COUNTY OF MIAMI.DADE
This instrument was acknowledged
,as the
corporation, on behalf of that corporation.
before me this _ day of , 2003 by
ofPrincipaJ Life Insurance Company, an Iowa
Print Name:
NOTARY PUBLIC
My commission expires:
(SEAL)
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EXHlBIT "A"
(to Schedule II)
Parcel 3B
A portion ofParcel3B, BOYNTON COMMERCE CENTER, according to
the Plat thereof, as recorded in Plat Book 46, Pages 126 and 127 of the
Public Records of Palm Beach County, Florida, described as follows:
BEGIN at the northwest comer of said Parcel 3B; thence SSS'32 '20"E,
along the north line ofParcel3B, a distance of 179.10 feet to a point of
curvature of a curve concave southerly with a radius of 1994.00 feet and a
central angle of IS'I3 '31"; thence southeasterly along the arc of said curve,
634.27 feet to a pomt on the east line of Parcel 3B and the west right-of-way
line of the Seaboard Airlme Railroad; thence S20'OO' 15"W, along said west
right-of-way line, 136.50 feet; thence NSS'32'20"W, SOO.1 I feet to the west
Ime of Parcel 3B; thence N02'21 '32"E, along the said west line, 56.54 feet
to a point of curvature of a curve, concave to the east, having a radius of
525.00 feet to a central angle of21'41 '42"; thence along said west line of
said Parcel 3B a distance of J 9S.78 feet to the POINT OF BEOINNING.
Said lands lying and situate in Palm Beach County, Florida, containing
167,376 square feet, 3.S424 acres, more or less.
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]]
EXJllBlT "B"
(to Schedule TI)
Parcel 3C
Revised Parcel 3C
All of Parcel 3C, less that part of Parcel 3C which is described in deed recorded in Official Records Book
9151, at Page 571, TOOETHER WITH A PORTION OF PARCEL 3B, all in BOYNTON COMMERCE
CENTER, according to the Plat thereof, as recorded in Plat Book 46, Pages 126 and 127, all in the Public
Records of Palm Beach County, Florida, DESCRIBED AS FOLLOWS:
COMMENCING at the southwest comer of said Parcel 3C; thence N02E2] '32"E, along the west line of
said parcel 40.00 feet to the POINT OF BEOJNNINO; thence continue N02E2]'32"E along said west
boundary of Parcel 3C and Parcel 3B, 230.59 feet; thence S88E32'20"E, 800.11 feet to a point on the east
line of said Parcel 3B and the west right-of-way line of the Seaboard Airline Railroad; thence
S20EOO'1 5"W, along east boundary and west right-of-way line 323.51 feet to a point on a non-tangent
curvature of a curve concave to the southwest; thence northwesterly along the arc of said curve, having a
radius of 1534.00 feet a central angle of 18E07'47", an arc distance of 485.40 feet; thence N88E32'20"W,
223.51 feet to the POINT OF BEOJNNING.
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]2
SKETCH AND- JESCRIPllON
BOYNTON COMMERCE CENTER
PLAT BOOK 46, PAGE 126 & 127
PALM BEACH COUNTY RECORDS
:t--.x ~ ,I., :-r 4-
P"ck2-
LAND DESCRIPTION:
A portion of Parcel 3H, BOYNTON COMMERCE CENTER, occording to the Plot thereof,
os recorded in Plot Book 46, Poges 126 and 127 of the Public Records of
Polm Beach County, Florida, described os follows:
COMMENCE at the southwest corner of said Parcel 3H; thence N02'21'32"E, along the
west line of said Porcel 3H, 0 distance of 842.49 feet; thence S87'38'28"E, 39.06 feet
to the POINT OF BEGINNING; thence NOT09'25"E, 121,38 feet; thence S87'50'35"E, 5.00
feet; thence NOT09'25"E, 42.31 feet; thence N87'50'55"W, 5,00 feet, thence N02'09'25"E,
112,24 feet; thence S87'54'15"E, 83.44 feet to 0 point on 0 non-tongent curve, concave
to the southeost (0 rodial line to soid point bears N79'41'27"W); thence southwesterly
along the orc of said curve, hoving 0 rodius of 575.00 feet and 0 central ongle of
07'57'01", on orc distonce of 79.79 feet; thence S02'21'32"W, 197.06 feet; the preceding
two courses being olong the west line of a 50 foot Ingress-Egress & Utility Eosement;
thence N87'25'55"W, 76,94 feet to the POINT OF BEGINNING.
Soid lands lying and situate in Polm Beoch County, Florida.
NOTES:
1. Reproductions af this Sketch are not valid without the signature and the original raised
seal of a Florida licensed surveyor and mapper,
. 2. No Title Opinion or Abstract to the subject property has been provided. It is possible
that there are Deeds, Eosements, or other instruments (recorded or unrecorded) which
moy affect the subject property. Na search of the Public Records has been mode by the
Surveyor.
3, The lond description shown hereon was prepared by the surveyor.
4, Data shown hereon was compiled from instrument(s) of record and does not constitute 0
boundary survey,
5, No underground improvements were located.
6, Bearings shown hereon ore relative ta soid plat with the west line of Parcel 'H' having
a bearing of N02'21'32"E.
7, Abbreviation Legend: L.B.= Licensed Business; P.B.= Plot Book; P,B.C,R.= Palm Beach
County Records; PG,= Page; P.L,S.= Prafessional Land Surveyor; P.O,B.= Point
of Beginning; P.O.C,= Point of Commencement.
CERTlFICA TlON:
I HEREBY CERTIFY that the attached Sketch and Description af the hereon described property
is true and correct to the best af my knawledge ond belief as prepared under my direction.
I FURTHER CERTIFY that this Sketch ond Description meets the Minimum Technical Standards
set farth in Chapter 61G17-6, Florida Administrative cade~pursuant to Section 472.027,
Flarida Stotutes.
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Date: ~b!o~ ~OHN T. DOOGAN, P.L.S,
. ,
F1orido Registration No. 4409
SKETCH NOT VALID WlTtlOUT SHEET 1 & 2 A VIROM & ASSOCIATES, INC.
L,B. No. 3300
REVISIONS
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A VIROM & ASSOCIA TES. INC.
SURVEYING & MAPPING
60 S.W. 2ND AVENUE. SUITE 102
BOCA RATON, FLORIDA 33..32
TEL. 16611 392-2<<19", FAX (6611 39"'712f>
@2oo3 ,A\IIROU &: .-.SSOO,AlL5. INC. AU RIGHTS R(S[RVED.
JOB NO.4109-34
SCALE: 1" = 60'
DATE: 02/03/03
DRAWN BY: C.L.P.
SHEET: 1 OF: 2
a
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SCALE: 1. = 60'
SKETCH AND ESCRIPllON
BOYNTON COMMERCE CENTER
PLAT BOOK 46, PAGE 126 & 127
PALM BEACH COUNTY RECORDS
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REVISIONS
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WITHOUT SHEET 1 & 2 I
A VIROM & ASSOCIA TES. INC.
SURVEYING & MAPPING
60 S.W. 2ND AVENUE. SUITE 102
BOCA RATON. FLORIDA 33432
TEL. (6611 392-2694. FAX (6611 394-7126
@2oo3 ,A.V1ROM &: ASSOOArrS. INC AU RIGHTS RESERVED.
JOB NO.4109-34
SCALE:
DATE:
DRAWN
SHEET:
1. = 60'
02/03/03
BY: C.L.P.
2. OF: 2
EXHIBIT B
Due Dilieence Items
All of these items are furnished as-is and without representation or warranty as to accuracy,
completeness or any other matter.
Phase I real estate transfer ENVIRONMENTAL SITE ASSESSMENT REPORT Boynton
Commerce Center, 4 parcels totaling 18.49 acres, December] 7, ] 997, Fluor Daniel GTI
~
k
Report of geotechnical exploration
Boynton Commerce Center, January] 988, Nutting Engineers
3
2002 Real estate tax bill
4.
Boundary Survey, portion of Parcels 3 and 3H, Boynton Commerce Center. Last revision
dated 07/05/01.
5.
Chicago Title Insurance Company's Loan Policy No. 10 2853 107 00000008, having the
effective date of June 3, 1999, as endorsed by Endorsement No.1, having the effective date
of December 28, ] 999, and by Endorsement No.2, having the effective date of February 24,
2001.
c:\ WINNT\Profi les\swise\T emporary internet F iles\OLKC\OPRE-005-doc
EXHIBIT C
OPTION CLOSING COSTS
1.
Tax and assessment proration: Prorated as of the date of closing, except certified
liens shall be paid by Seller. Any proration or estimate shall be reprorated upon
receipt of actual figures. This paragraph shall survive Closing.
"
"
2.
Documentary Stamps: Seller shall pay this cost.
3.
No brokerage fees.
4.
Deed preparation fee cost: Seller's Account.
5.
Survey costs: Buyer's Account.
6.
Title Insurance Costs: Seller shall pay (i) the title search charges necessary to obtain
the Commitment, and (ii) the portion of the title premium required to be remitted to
the Title Company, but not the portion of the title insurance charge which is retained
by an agent which is not the Title Company (i.e., the portion of the premium which is
30% to 40% required to be remitted to the Title Company shall be paid by the Seller).
7.
Recording Fees: Buyer's Account.
8.
Document preparation costs (deeds, easement agreements, and other easements):
Seller's Account.
9.
All other closing costs: As each party's interest appears.
c:\ WINNT\Profi les\swise\l emporary Internet Files\OLKC\OPRE -005 .doc
.J /2~J\)3 09: 34
551589555~
WINSTON LEE ASSO
PAGE 01
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1
FAX MEMORANDUM
DATE: April], 2003
TO: Seih Wise
cc: Barbara Hansen
FROM: Joni Brinkman, AlCP
RE: Boynton Commerce Center
Our File No. 02-030
No. ofP.ges (including cover): 1
Per your request, outlined below is a revised approval schedule based on a required submittaI by May
31,2003, (60 days from today's date) for the above referenced project.. Approvals which would need
to be sought, pursuant to our team meeting, would be site plan approval, approval of revised PID use
list 10 allow for retail, approval of revision to the master plan, and abandonment, realignment and
rededication ofa new access easement north of the propeny. All these requests will follow the same
approval schedule, with the exception of the abandonment, which requires two additional City
Commission meetings.
May 31, 2003
July 15, 2003
August 26, 2003
September 2, 2003
September 16, 2003
October 7, 2003
Submittal of all required applications.
Resubmittal ofplans at the Technical Review Committee meeting.
Planning & Development Board Meeting
City Commission Meeting for all approvals.
City Commission Meeting for 1- reading on abandonment ordinance.
City Commission Meeting for 2"" reading on abandonment ordinance.
Be advised if; during site design, it becomes apparent that a variance(s) will need to be requested,
it would be processed concurrently with the other requests per the schedule. Please feel free to
call with any questions,
1532 Old Okeechobee Road, Swtt 106, West Palm Beach, IT. 33409-5270
561-689-4670 . Fax 561-689-5559