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R03-055 RESOLUTION R03- t>$' ff' A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING EXECUTION OF A SUBORDINATION OF EASEMENT TO DECLARATION OF RESTRICTIVE COVENANT BETWEEN THE CITY OF BOYNTON BEACH AND DSS PROPERTIES, L.L.C.; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Boynton Beach was granted an easement for storm water drainage and drainage facilities, water and sewer utilities, and/or other appropriate purposes incidental thereto, on, over and across certain property by DSS Properties, L.L.C., on October 15, 1999, recorded in ORB 11456, page 383 in the Public Records of Palm Beach County on November 16, 1999; and WHEREAS, DSS Properties, L.L.C., owner of the Two Georges Restaurant, is obligated to record a Declaration of Restrictive Covenant for its property by the Florida Department of Environmental Protection (DEP), which also requires that owners of easements over the subject property subordinate their interest thereto; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida docs hereby approve execution of a Subordination of Easement to Declaration of Restrictive Covenant, hereby subordinating its rights under said Easement by and between DSS Properties, L.L.C., and thc Florida Department of Environmental Protection, a copy of which Subordination is attached hereto as Exhibit "A". Section2. This Resolution will become effective immediately upon S:\CA\RESO~,greements\Subordination of Easement - DSS Properties.doc passage. PASSED AND ADOPTED this ! day of April, 2003. CITY BO / T ~ B CH, FLORIDA Commissioner S:\CA\RESO~Agreements\Subordination of Easement- DSS Properties.doc ~J Pr~parcd by and return to: James A. Ch~ror, City Attorney CiLy of Boynton Re~ch 100 East Boynton Beach Boulevard Boynton Beach, FL 33435 Nn-I6-J999 11:J6u 99-455326 ORB 11456 Pg 383 Con 11.. Doc Ie 7ta 111I1 BIIDI..IIIIDO..II...I. EASEMENT TIllS lNDEl\'TURE made this -..!..i day of ()~ ,1999, by DSS PROPERTIES, L.L.C.. a Florida Limite4. ~ability CompilllY, bavinll its principal place of business at 1"l.'L C~ \-~ ~, ~~ ~'\.. ~". ;~'\~')- . first party, tothc CITY OF BOYNTON BEACH. a politiaJ! subdivision oCebe Slate of Florida. second party: 5~~Where\'cr used herc:i~ the terms. "'first party" and "second party" \':::/~)1~~1 incl~de. s~ngular and plural, heirs, legal .representatives. and ~ . <,:;asSigns of mdlVlduals and the successors and asSIgns of coIpOral1ons, ',.;>;) '\uherc\'cT the context so admits or requires.) ~... ./,: 0 1,/ /') WHt~ the first party is the owner of property situate in Palm Beach County, Florida, and described\4J t6nows: '-.:-,. .i........ () p~;~~ f)-tf3- '1~- 2. 7- O.3-CJa?~/O '<71 ,'., Legai:~cription: ,,~ ./.} \f:'~)) . {.,./~ $r<;.:::.~\See Exhibit "A" attached hereto \~:-::;...<:.~7 d ~/ /"$ an . ~....s WHEREAS. the second €~}tcsires an easem~t for storm water drainage and drainage fa.cilities. water and sewer uli1ities;~or other appropriate purposes incidental thereto. on, over and across said property; and r>-:-:;\ \ l 1._1 WHEREAS. the first party is ~r~1p grant such an easement. . ,-. '1'<-.... NOW. THEREFO~ for and i~'~ir.e~tion of the mutual covenants each to the other running and one dollar and other good and~. .- ~iderations, the first party does hereby grant unto the party of the second part. its succe ...~..~gns. full and free right and authority to construct~ maintain. repair~ install and rebuild . ...~.. ~'(Qr above stated PUIpOses and docs hereby g~t a perpetual ~ment on, over an~. nero ~:~'Ve-describcd property for said purposes, subJc:ctto the followmg. terms and condluons: V;,r:...::~;:\ . ( ( \\.') . \' \.~,1-- I . The first part~ retains the right to park O~ilIl~ lhe easement property and use the easement property .1S u porkmg lot. \'</ ,<; 2. The grant of the eascmenl is conditioned upo,rf~nd party counting the parking spaces on and over the easement propcny when calCulating:~'~uired parking spaces necessary fQr the use and occupancy of the buildings located on the propchY' ql)he first party described as Lots - 1.,'......-' ,/~.... -.....->...~ ~:::;.;/~) ) i 1 \1 \'::.::::::>'1\ /ir' (~~~~ ::A . .. . ; ? ~. ORB 11456 Pg 384 1,2.3.4.5.6 and the East 15.35. of Lot 7. CASA LOMA, according to the Plat thereof. recorded in Plat Book 11. Page 3. orthe Public Records of 'Palm Bca<:h County, Florida. -3. The grant of the easement is conditioned upon the second party maintaining the easement, specifically. but not limited to~ restoring the parking lot and wood dock in a commercially reasonable manner. with the least disruption to the business of the first party. ~ 4.;:~~ The e.xecution and delivery of this easement is without prejudice: to any and all claims the fi~ now or may have in the future against the second party relative to improvements propos&t~9' de to CiJS;l Lorna Boulevard. Iklivery of this casement shall not be construed. as a waiver~(?') su~.h claims. ..... ~)". ';-"" O' ,,"" /,/ IN \vttt..'?;$S WI IEREOF. the first party has caused these pn:scnts to be duly executed in its name and ~JY !tluthorized. the day and year first above wrinen. J'-.O Signed and deli\'~~c presence of: - /1j( T.'!\ \: " I" -""';',w,,"'/'/ By: W' ess 1 nature ~~::::-j"}.-' LA? William G. S , Jr. Printed ~ ess Name: "'~~~ Title: Managing Member \'-..' " ,- ,"~-:::;,,{ Witn Signature ~ Printed Witness Name: .714~ . :l11l^-- .ts STATE OF ..-.ELll r::..:~ (;::-:i\ COUNTY o~6>~ lftA c.' '. l.. 1._:, " ......:::>r-- ,,",,,:,,"..~ ,'(,,,'.') r \\1 I f IEREBY CER"nFY thnt on this.i:fa~~~fore me. an officer duly authorized in the Stale and County aforesaid to tnkc :Jcknowledgmen~lY appeared William G. Scaggs, Jr., well known to me to be the Managing Member ofDSS P$CL.L.C.. named as rust party int he foregoing Easement and that they severally acknow ',e~~uting the same in the presence of two subscribing witnesses freely and voluntarily. un ,u$oP~ duly vested in them by DSS Properties, , '~ ,-, L.LC. V'::,.'-.. . WITNESS my hand and onicial seal in the ~~.&:'.\and State last aforesaid this -t6ay of Oc.~. 1999. (>"1"';> N:~~?~ IJ1 ~ "~ /"L La rSe h Printed Q~lJ-lame ~'''~:':..~.~:;-~ // /-~.') ": ~ ,"';. ./ / " ''':::.:::/!\, //j~ (':::'~.:..=-.:;:-~ My Commission Expires: Q): : IIY- r ...a:... EIIPIEI: ~"'2IIlD ........ ..,NIr......... 2 i ...~......-.~~-. '-:) ;>(\ ( r- ~ ,5'-, .../"..," C 16.50' ..,< '-;1 N..90"OO'OOc.~'"' ~.,.) \S ,'.' -' LOT4 ~~~~) ,._, :::::::--)'h ~<// ,; DESCRJPTION: <:;~ i( l} A PORTICJN OF LOT 4. CA~ LON~ Acr;ORIJIlIii.~.>;.'\ TO DfE PtA T 1PfERB1F A,S ~~ IN Pf..A T (.' "\ BOOK n. PAGE ~ Pf&IC ~CORDS OF PAUl \(,.1/. BEACIf t:t:JUttn'. ftQlDt>~. ~ AS Fou.O~::>~~2-, CfJIIMDI(;E ~:T TkE: NORTHCAST CORNER OF' SA';:;(,J)/l/DHN No SUlmi LOT .4; ~ ~-al'1'W-W... ""OM; $U) NrmTH -,' jSt,JRVEYOR ANa W,;>PER /131. ~ A lJISTA""Zf-"!-a.Q nrr TD ". PONT" (',__/ "--~ OF ~ ,~ CONTINUE ~-oo'OO-W.. .....---- . "LaM: SAID NtHlTH tN; A DlSTA/ICE OF' 16.511/31 U4.0f0~7t A DSTANCC ~ 1arlfl / l/&fllfi.78ft ~ ~~ OF 4fJ.72 FEET TO THE I'OINT or ~ ---.-.----... N8$oll Yeanr e~ a1 - , 511&UlIAII I Elti!:IJn1: n A" ... It) "") I-. <:) -.) OROf:R NO. BO-2,7S-G" ORB 1:1. 456. Pg 3:'~ DURlJ1H'f H. WIlIIEN; ClEftJl PB ~ Ft Iilloos 1-41& p" I!lUS Jalt-m NaTeS: 1US lS HOT A SURVEY TIE NORTH LWC OF L.OT 4- IS ASSU\IED TO ElEAR s'90-oo'tkJ'W. p.e.B. == P01I'Ir r;F 8E.GW/1JNG txHlBlT -A. SHCET l of f Q4 ~.AIIE ... &WbYfJ.aE-1L ~4N. $UII'Df"~ 2tJf1f rIORTH ~ M/i':HlM" . .DEI.JM r lIPCH Fl.,...". ~ (nJ) .271'-~, (5flTJ 7~n .~ ;-0 rq" p. L'C ,The' City of Boynton Beach 0(,7 \~ City Clerk's Office 100 E BOYNTON BEACH BLVD BOYNTON BEACH FL 33435 (561) 742-6060 FAX: (561) 742-6090 e-mail: prainitoj@cLboynton-beach.fl.us www.boynton-beach.org April 4, 2003 Mr. Larry Z. Glickman, Esq. Sachs, Sax & Klein, P.A. P. O. Box 810037 Boca Raton, FL 33481-0037 RE: RESOLUTION #R03-Q55 - DECLARATION OF RESTRICTIVE COVENANT Dear Mr. Glickman: Attached please find a copy of the above mentioned resolution that was approved at the Regular City Commission meeting held on April 1, 2003. After the document has been fully executed, please return to me for Central Files. Thank you. R () j3 -(J .~'-5 I/) - x:"^ 0 "~ - l U / . , , ( . ^'. .' //.< C. ../t \ ..-f)." / , U(( (jijl ,..-~. .-' ~~~ , -rl' ,) ,(. ( f (.;,)/l~' '(/ J...)' .'--.' { . J..,Ul I.-U( ,.),..;J,Z"', l.. ..A, i C'~, (/ '-; , ",/ / {. "'~' ",,:,,//!,,; J '-' / 7- . //,,< ,"""{Il ,/1- /' ( ./ ,;$ Sincerely, THE CITY OF BOYNTON BEACH ET M. PRAINITO, CMC CLERK I .; J,/;,. "y' C-/ /..L- I. _ ~ .... "'//I,L f).f..~'- );J.{ A.;/-~ S:\CC\WP\Letters\Sachs. Sax and Klein, P.A..doc America's Gateway to the Gulfstream R03-05S This instrument was prepared by and should be returned to: Larry Z. Glickman, Esq. Sachs, Sax & Klein, P.A. P.O, Box 810037 Boca Raton, Florida 33481-0037 Office of the City Cleft City of Boynton Beach P. O. Box 310 Boynton Beach, Florida 3342S DECLARATION OF RESTRICTIVE COVENANT THIS DECLARATION OF RESTRICTIVE COVENANT (/lDECLARA TION") is made this I day of ~fti L.. , 2003, by DSS Properties, LLC, a limited liability company ("Owner") and the lorida Department of Environmental Protection ("DEP"). RECIT ALS A. Owner is the fee simple owner of that certain real property situated in the County of Palm Beach, State of Florida, more particularly described as: Lots 1 through 6, inclusive and the East 15.35 feet of Lot 7, CASA LOMA, A SUBDIVISION of the City of Boynton Beach, Florida, 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 11, Page 3 (hereinafter, the "Property"). B. The DEP Facility Identification Number for the Property is 509200406. The facility name at the time of this Declaration is "Two Georges Waterfront Grille." C. The discharge of petroleum products on the Property is documented in the following reports ("Reports), which are hereby incorporated by reference: Five (5) petroleum product discharges have been reported at the Property: October 9, 1992; September 13, 2001; September 26, 2001; October 2, 2001; and December 12, 2001. Prior to the last discharge report, cleanup and removal was documented in a Storage Tank System Closure Assessment Report dated October 26,2001 (Dunkelberger Engineering and Testing, Inc. ["DET"] Project No. 01-22-2904) and in DET Site Assessment Report dated October 31,2001. Cleanup and removal as to the most recent discharge report is documented in DET Storage Tank System Closure Assessment Report dated October 26,2001 (DET Project No. 01-22-3039). D. The Reports set forth the nature and extent of the contamination on the Property. The Reports confirm that contaminated groundwater as defined by Chapter 62-770, Florida Administrative Code, exists on the Property. Also the Reports document that the groundwater contamination does not extend off the Property, that the extent of the Page 1 of 8 Pages groundwater contamination does not exceed one quarter (14) acre, and that the groundwater contamination is not migrating. E. The DEP has agreed to issue a No Further Action with Conditions ("NFA"), upon recordation of this Declaration; however the DEP may unilaterally revoke the NFA if the conditions of this Declaration orofthe NFA are not met. Additionally, in the event concentrations of petroleum products' chemicals of concern increase above the levels approved in the NFA, or if a subsequent discharge of petroleum or petroleum product occurs at the site, the department may require site rehabilitation to reduce concentrations of contamination to the levels approved in the NFA 01' otherwise allowed by Chapter 62-770, F.A.C. The NFA relating to Owner, DEP Facility No. 509200406, are on file with the DEP Bureau of Petroleum Storage Systems located at 2600 Blair Stone Road, Mail Station 4575, Tallahassee, Florida 32399-2400. F. Owner deems it desirable and in the best interest of all present and future owners of the Property that an NFA be obtained, and that the Property be held subject to certain restrictions, as more particularly set forth herein. NOW, THEREFORE, to induce the DEP to issue the NFA, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the undersigned parties, Owner hereby agrees as follows: 1. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Owner hereby imposes on the Property the following use restriction(s): There shall be no drilling for water conducted on the Property, nor shall any wells be installed on the Property other than monitoring wells pre- approved by the DEP. There shall be no use of the groundwater on the Property. Additionally, there shall be no stormwater swales, stormwater detention or retention facilities, or ditches on the Property. 3. For the purpose of monitoring the restrictions contained herein, DEP or its respective successors and assigns shall have site access to the Property at all reasonable times and with reasonable notice to the Owner. 4. It is the intention of Owner that the restriction contained in this Declaration shall touch and concern the Property, run with the land and with the title to the Property, and shall apply to and be binding upon and inure to the benefit of the successors and assigns of Owner, and to DEP, its successors and assigns, and Page 2 of 8 Pages to any and all parties hereafter having any right, title or interest in the Property or any part thereof. This Declaration shall continue in perpetuity, unless otherwise modified in writing by Owner and the DEP as provided in paragraph 6 hereof. These restrictions may be enforced in a court of competent jurisdiction by the DEP or its successor agency, or by any other person, firm, corporation, or governmental agency that is substantially benefitted by this restriction. 5. In order to ensure the perpetual nature of these restrictions, the Owner, and its successors and assigns, shall reference these restrictions in any subsequent deed of conveyance, including the recording of book and page of record of this Declaration. 6. This Declaration is binding until a release of covenant is executed by the DEP Secretary (or designee) and is recorded in the county land records. To receive prior approval from DEP to remove any requirement herein, active cleanup of the Property must resume or cleanup target levels established pursuant to Florida Statutes and DEP rules must have been achieved. This Declaration may be modified in writing only. Any subsequent amendment or modification of this Declaration must be in writing and executed by both Owner and the DEP or their respective successors and assigns, and be recorded by the Owner as an amendment hereto. 7. If any provision of this Declaration is held to be invalid by any court of competent jurisdiction, the invalidity of such provision(s) shall not affect the validity of any other provision thereof. All such other provisions shall continue unimpaired and in full force and effect. [Signatures are continued on the next page.] Page 3 of 8 Pages IN WITNESS WHEREOF, Owner has executed this instrument, ,2003. this of day Signed, sealed and delivered in the presence of: (Owner's signature) Of: DSS PROPERTIES, LLe. Print Name Its: (full mailing address) Date: Witness (not the Notary) Print Name: Date: Witness (not the Notary) Print Name: STATE OF FLORIDA ss: COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this day of , 2003, by , who is personally known to me or has produced the following identification: Notary Publ ic, State of Florida at Large Typed, printed or stamped name of Notary Public SIGNATURES CONTINUED ON NEXT PAGE Page 4 of 8 Pages Approved as to form by the Florida Department of Environmental Protection, Office of General Counsel IN WITNESS WHEREOF, The Florida Department of Environmental Protection has executed this instrument, this day of , 2003. Signed, sealed and del ivered in the presence of: FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION By: Print Name: Title: Division of ; Bureau of Mailing Address; Mail Station_, City, Florida Zip Code Date: Witness (not the Notary): Print Name: Date: Witness (not the Notary): Pri nt Name: STATE OF FLORI DA ss: COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this day of , 2002, by , as representative for the Florida Department of Environmental Protection, who is personally known to me or has produced the following identification: Notary Publ ic, State of Florida at Large Typed, printed or stamped name of Notary Public Page 5 of 8 Pages SUBORDINATION OF MORTGAGE TO DECLARATION OF RESTRICTIVE COVENANT COLONIAL BANK, as the owner and holder of the following described instrument: Mortgage Deed and Security Agreement originally given to Palm Beach National Bank & Trust Company by William G. Skaggs and Betty J. Skaggs, his wife, recorded June 3, 1997, in Official Records Book 9821, Page 803, among the Public Records of Palm Beach County, Florida hereby subordinates the lien of its Mortgage to the Declaration of Restrictive Covenants by and between DSS Properties, LLC and the Florida Department of Environmental Protection. IN WITNESS WHEREOF, the undersigned has executed and delivered this Subordination of Mortgage to Declaration of Restrictive Covenants, this day of ,2003. COLONIAL BANK, a National Banking Association WITNESSES: By: Print Name: Title: Print Name Print Name: STATE OF FLORIDA ss: COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this day of , 2003, by , as representative of Colonial Bank, a National Banking Association, who is personally known to me or has produced the following identification: Notary Public, State of Florida at Large Typed, printed or stamped name of Notary Publ ic Page 6 of 8 Pages SUBORDINATION OF EASEMENT TO DECLARATION OF RESTRICTIVE COVENANT THE CITY OF BOYNTON BEACH, a political subdivision of the State of Florida, as the second party under the following described instrument: Easement given by DSS Properties, L.L.C. a Florida Limited Liability Company, first party, to The City of Boynton Beach, a political subdivision of the State of Florida, second party, recorded November 16, 1999, in Official Records Book 11456, Page 383, et seq., among the Public Records of Palm Beach County, Florida hereby subord i nates its rights under said Easement to the Declaration of Restrictive Covenants by and between DSS Properties, LLC and the Florida Department of Environmental Protection. IN WITNESS WHEREOF, the undersigned has executed and delivered this Subordination of Easement to Declaration of Restrictive Covenants, this 1st day of April , 2003. WITNESSES: 7h~()~ THE CITY OF BOYNTON BEACH, a political subdivision 0:, mtfh State of Florida By: ~ Print Name: Kurt Bressner !}~ rtiZ.- ~ ,If NN ~ 5 rt~ !(-;t- Pnnt Na e futl;;: ~ x.L.+ I) ~ ' 10 cT r 'I L, -S (.) II G- t Print Name: Title: City Mana~er City of Boynton Beach STATE OF FLORIDA ss: COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this 3rd.. day of .4 fR IL, 2003, by J<urt- 6(er.rher , as representative.9fThe City of Boynton Beach, a political subdivision of the State of Florida, who Vis personally known to me or has produced the following identification: ~?t0L C~~7t'J Notary Public, State of Florida at Lar:ge ~ S' USflN CD LL I jVS Typed, printed or stamped name of Notary Publ ic Page 7 of 8 Pages SUBORDINATION OF RECIPROCAL EASEMENTS TO DECLARATION OF RESTRICTIVE COVENANT OCEAN BREEZE FESTIVAL PARK, INC., a Virginia corporation, as a party under the following described instrument: Declaration of Reciprocal Easements given between Ocean Breeze Festival Park, Inc., a Virginia corporation and DSS Properties, L.L.c. a Florida Limited Liability Company, recorded August 28, 2000, in Official Records Book 11980, Page 539, et seq., among the Public Records of Palm Beach County, Florida hereby subordinates its rights under said Reciprocal Easements to the Declaration of Restrictive Covenants by and between DSS Properties, LLC and the Florida Department of Environmental Protection. IN WITNESS WHEREOF, the undersigned has executed and delivered this Subordination of Easement to Declaration of Restrictive Covenants, this day of ,2003. OCEAN BREEZE FESTIVAL PARK, INC., a Virginia corporation WITNESSES: By: Print Name: Title: Print Name Print Name: STATE OF FLORIDA ss: COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this day of , 2003, by , as representative of Ocean Breeze Festival Park, Inc., a Virginia corporation, who is personally known to me or has produced the following identification: Notary Public, State of Florida at Large Typed, printed or stamped name of Notary Public M:\Corporate\DSS Restaurant\Declaration of Restrictive Covenant.wpd Page 8 of 8 Pages SACHS, SAX & KLEIN, P.A. A ITORNEYS AT LAW NORTHERN TRUST PLAZA. SUITE 4150 301 YAMATO ROAD BOCA RATON, FLORIDA 33431 MAILING ADDRESS POST OFFICE BOX 81 0037 BOCA RATON, FLORIDA 33481-0037 TELEPHONE (561) 994-4499'" DIRECT LINE (561) 237-6827 FACSIMILE (561) 994-4985 LARRY Z. GLICKMAN, ESQ, e-mail: Izg@sachs-sax-klein.com March 5, 2003 City of Boynton Beach Attn: City Attorney's Office/Rosemary Post Office Box 310 Boynton Beach, Florida 33425 :-0 \" - \" \1, 'LOO3 .,',1, . .f!'"~' ~'-''''~.' .", .., f.. r.,',"\'::. ,':, '~:? \ t, \' .\ \, ~\ h.."--=" . , ,~.\ , .,.,\ ~ - Dear Ms. Ramirez: \,~~"", '",,' 9r~''''''-'''''''_ ~-~. Re: DSS Properties, L.L.C./Two Georges Restaurant Our File No. 3968.01 .-... '" n :-, This law firm represents DSS Properties, L.L.c., owner ofthe Two Georges Restaurant. Incident to permitting by the Florida Department of Environmental Protection ("DEP"), our client is obligated to record a Declaration of Restrictive Covenarit for its property. A copy of that Declaration, as approved by DEP is enclosed with this letter. DEP requires that, appended to the Declaration, owners of mortgages and/or easements over the subject property subordinate their interest thereto. A copy of your Easement is enclosed with this letter for convenient reference, and the Subordination of your Easement is found at page seven (7) of the instrument. We request that you review these documents, and return the executed Declaration, including page seven (7), to this office for submission to DEP. If you have any questions with respect to the instrument or this matter generally, please do not hesitate to contact this writer directly. Very truly yours, LZG :cs Enclosures cc: DSS Properties, L.L.c. (do Mr. William Skaggs) Ms. Nancy Byrne, City of Boynton Beach M:\Corporate\DSS Restaurant\Letters\City of Boynton Beach Izg.l ,wpd