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Agenda 08-02-05 The City o.f nt n B a hi ..;.~..P....".: )iJr 100 E. Boynton Beach Boulevard. (561) 742-6000 City Commission AGENDA August 2,2005 Jerry Taylor Mayor At Large Bob Ensler Commissioner District I < ~ Mack McCray Vice Mayor District II Mike Ferguson Commissioner District III z w ~ ~ Carl McKoy Commissioner District IV DISTRI T I Kurt Bressner City Manager www.boynton-beach.org We're Reinventing City Living for the Millennium WELCOME Thank you for attending the City Commission Meeting THE AGENDA: There is an official agenda for every meeting of the City Commissioners, which determines the order of business conducted at the meeting. The City Commission will not take action upon any matter, proposal, or item of business, which is not listed upon the official agenda, unless a majority of the Commission has first consented to the presentation for consideration and action. GENERAL RULES &. PROCEDURES FOR PUBLIC PARTICIPATION AT CITY OF BOYNTON BEACH COMMISSION MEETINGS · Consent Agenda Items: These are items which the Commission does not need to discuss individually and which are voted on as a group. · Regular Agenda Items: These are items which the Commission will discuss individually in the order listed on the agenda. · Voice Vote: A voice vote by the Commission indicates approval of the agenda item. This can be by either a regular voice vote with "Ayes & Nays" or by a roll call vote. SPEAKING AT COMMISSION MEETINGS: The public is encouraged to offer comment to the Commission at their meetings during Public Hearings, Public Audience, and on any regular agenda item. City Commission meetings are business meetings and, as such, the Commission retains the right to limit discussion on an issue. · Public Hearings: Any citizen may speak on an official agenda item under the section entitled "Public Hearings. " · Public Audience: Any citizen may be heard concerning any matter within the scope of the jurisdiction of the Commission. · Regular Agenda Items: Any citizen may speak on any official agenda item(s) listed on the agenda after a motion has been made and properly seconded. . ADDRESSING THE COMMISSION: When addressing the Commission, please step up to either podium and state, for the record, your name and address. DECORUM: Any person making impertinent or slanderous remarks or who becomes boisterous while addressing the Commission will be barred from further audience before the Commission by the presiding officer, unless permission to continue or again address the Commission is granted by the majority vote of the Commission members present. Please turn off all pagers and cellular phones in the City Commission Chambers while the City Commission Meeting is in session. City Commission meetings are held in the Boynton Beach City Commission Chambers, 100 East Boynton Beach Boulevard, Boynton Beach. All regular meetings are held typically on the first and third Tuesdays of every month, starting at 6:30 p.m. (Please check the Agenda Schedule - some meetings have been moved due to Holidays/Election Day). CITY OF BOYNTON BEACH REGULAR CITY COMMISSION MEETING AGENDA August 2, 2005 6:30 P.M. I. OPENINGS: A. Call to Order - Mayor Jerry Taylor B. Invocation by Reverend Rick Riccardi, Police Chaplain C. Pledge of Allegiance to the Flag led by Commissioner Bob Ensler D. Agenda Approval: 1. Additions, Deletions, Corrections 2. Adoption II. OTHER: A. Informational Items by Members of the City Commission III. ANNOUNCEMENTS, COMMUNITY &. SPECIAL EVENTS, &. PRESENTATIONS: A. Announcements: 1. Carolyn Sims Annual Family Day Picnic, Saturday, August 6, 2005 at Wilson Park, 211 NW 13th Avenue from 12 - 6 p.m. 2. Vice Mayor Mack McCray has continued the tradition of the Greater Boynton Beach School Supply Drive which runs through August 10, 2005. Supplies include NEW pencils, pens, crayons, notebooks, notebook paper, backpacks, calculators, lunch boxes, scissors, rulers and glue sticks. Drop off points include City Hall, Public Library, City Hall in the Mall and Ezell Hester, Jr. Community Center. The supplies donated will be given to the schools to distribute. B. Community and Special Events: None Agenda Regular Commission Meeting Boynton Beach, FL August 2, 2005 C. Presentations: 1. Proclamations: None. 2. 2005 Legislative Session Update by Senator Ron Klein. IV. PUBLIC AUDIENCE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 3-MINUTE PRESENTATIONS (at the discretion of the Chair, this 3-minute allowance may need to be adjusted depending on the level of business coming before the City Commission) V. ADMINISTRATIVE: A. Accept the resignation of Patricia Maitner, a regular member of the Code Compliance Board. B. Accept the resignation of Kimberlee McGow, a regular member of the Arts Commission. B. Appointments to be made: Appointment To Be Made III Ferguson IV McKoy II McCray III Ferguson II McCray III Ferguson IV McKoy II Ensler III Ferguson IV McKoy II Ensler Length of Term Board Expiration Date Adv. Bd. On Children & Youth Alt 1 yr term to 4/06 Adv. Bd. On Children & Youth Alt 1 yr term to 4/06 Cemetery Board Alt 1 yr term to 4/06 Code Compliance Board Alt 1 yr term to 4/06 Education Advisory Board Alt 1 yr term to 4/06 Education Advisory Board Reg 1 yr term to 4/06 Education Advisory Board Alt 1 yr term to 4/06 Education Advisory Board Stu 1 yr term to 4/06 (3) Library Board Alt 1 yr term to 4/06 Library Board Alt 1 yr term to 4/06 Employees' Pension Board Reg 3 yr term to 4/08 2 Agenda Regular Commission Meeting Boynton Beach, FL August 2, 2005 VI. CONSENT AGENDA: Matters in this section of the Agenda are proposed and recommended by the City Manager for "Consent Agenda" approval of the action indicated in each item, with all of the accompanying material to become a part of the Public Record and subject to staff comments. A. Minutes: 1. Agenda Preview Meeting - July 15, 2005 2. Regular City Commission Meeting- July 19, 2005 B. Bids and Purchase Contracts - Recommend Approval - All expenditures are approved in the 2004-2005 Adopted Budget. None. C. Resolutions: 1. Proposed Resolution No. ROS-096 RE: Ratifying the action of the South Central Regional Wastewater Treatment & Disposal Board. a. Authorization for the Chairman to sign the interlocal agreement for the delivery and use of reclaimed water with Boynton Beach, effective as of October 1, 2005. (Tabled to 8/02/05) b. Assignment Agreements for the following golf courses: Delray Dunes Golf and Country Club, Country Club of Florida, Hunters Run Golf and Racquet Club, Pine Tree Golf Club and Quail Ridge Country Club.(Tabled to 8/02/05) 2. Proposed Resolution No. ROS-126 RE: Approving and authorizing the execution of Amendment No. 001 (Exhibit 'A') to the Interlocal Agreement between the City of Boynton Beach and Palm Beach County regarding the Lake Worth Lagoon Partnership Program. 3. Proposed Resolution No. ROS-127 RE: Approving and authorizing the execution of an Agreement for Water Service Outside the City Limits with Nelson R. Santos & Teresa Santos for the property at 4700 White Feather Trail, Boynton Beach, FL (13-45-42, W 160 FT of N 272.25 FT of NW % of SE % of NW %). 3 Agenda Regular Commission Meeting Boynton Beach, FL August 2, 2005 4. Proposed Resolution No. ROS-128 RE: Approving a three year interlocal agreement between Palm Beach County and the City of Boynton Beach at an annual cost of $4,000 funded by the I.T.S. Department Account #001-1510-513-41-10 where the City can directly access the County's Dialogic Geographic-based Alert and Notification System. 5. Proposed Resolution No. ROS-129 RE: Approving and authorizing the execution of an Agreement between the City of Boynton Beach for Joint Participation and Project Funding in the construction of Lawrence Road, from Boynton Beach Blvd. to Gateway Blvd. (Palm Beach County Project No. 1999507), and authorizing expenditures by the City in the amount of $315,742.00. 6. Proposed Resolution No. ROS-130 RE: Approve the City of Boynton Beach's 2005/2006 Community Development Block Grant (CDBG) One-Year Action Plan. D. Ratification of Planning and Development Board Action None E. Ratification of CRA Action: 1. Neelam (fka Schnars) Business Center (NWSP OS-022) Request for Site Plan approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use Low (MU-L) zoning district. 2. (Intentionally Left Blank) 3. 262S Lake Drive North (ZNCV OS-003) Request for relief from the City of Boynton Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a seventy-five (75) foot minimum lot frontage to allow a twenty-two (22) foot variance, resulting in a fifty-three (53) foot minimum lot frontage within the R-1-AA Single family Residential zoning district. 4. 62S NE lSth Place (Deasy Variance){ZNCV OS-OOS) Request for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a ten (10) foot side yard setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a screen enclosure within the R-1-AA Single family Residential zoning district. 4 Agenda Regular Commission Meeting Boynton Beach, FL August 2, 2005 F. Approve Change Order #1 for the Library Expansion Project in the amount of $189,963 to cover Contractor's General Conditions costs caused by the delayed start of the project. G. Approve Change Order #2 for the Library Expansion Project in the amount of $85,615 to cover the Contractor's labor and material costs associated with changing FPL power supply to the Civic Center from above ground to below ground and installing two conduits for BellSouth phone lines. H. Approve $5,000 donation to the Juvenile Transition Center, Inc. ESTEEM Program, from the state law enforcement trust fund. VII. CODE COMPLIANCE &. LEGAL SETTLEMENTS: None VIII. PUBLIC HEARING: 7:00 P.M. OR AS SOON THEREAFTER AS THE AGENDA PERMITS The City Commission will conduct these public hearings in its dual capacity as Local Planning Agency and City Commission A. PROJECT: Condominium Hotels in Mixed Use Districts (CDRV 05-013) Staff-initiated Mixed Use-High Intensity (MU-H) and Mixed Use-Low Intensity (MU-L) zoning districts. Request to amend the Land Development Regulations, Chapter 2, Section 6.F. Mixed Use Zoning Districts to add "Hotel, Extended Stay" as a permitted use in the Mixed Use-High Intensity (MU-H) zoning district; as a conditional use in the Mixed Use-Low Intensity (MU-L) zoning district; and to amend the definitions of "Hotel" and "Hotel, Extended Stay" to include condominium hotel units. (1st Reading of Proposed Ordinance No. 05-043) AGENT: LOCATION: DESCRIPTION: B. PROJECT: AGENT: OWNER: LOCATION: DESCRIPTION: Heritage Club @ Boynton Beach (LUAR 05-005) Michael Weiner, Esq., Weiner & Aronson, P.A. Thirty Six Hundred Holdings, LLC Northwest corner of the intersection of Federal Highway and Gulfstream Boulevard Request to amend the Comprehensive Plan Future Land Use Map from Local Retail Commercial to Special High Density Residential (1st Reading of Proposed Ordinance No. 05-044) Request to rezone from C-3 Community Commercial to PUD Planned Unit Development. (1st Reading of Proposed Ordinance No. 05-045) 5 Agenda Regular Commission Meeting Boynton Beach, FL August 2, 2005 Proposed Use: Mixed use development containing 19,500 sq. ft. of commercial development (office, retail, restaurant) and 166 multi-family residential units. 1. Heritage Club @ Boynton Beach (NWSP 05-014) Request New Site Plan approval to construct 70 townhouse units, a four (4) story mixed use building consisting of 84 dwelling units, 3,500 square feet of restaurant, 4,100 square feet of retail, and 5,164 square feet of office. The site plan also includes a three (3) story mixed use building consisting of 12 dwelling units, 5,394 square feet of retail, and 1,380 square feet of office, all of which, are proposed on an 8.302 acre parcel zoned PUD Planned Unit Development. 2. Heritage Club @ Boynton Beach (HTEX 05-004) Request for a height exception of 10 feet pursuant to the City's Land Development Regulations, Chapter 2, Zoning, Section 4.F.2, to allow the decorative towers to be 55 feet in height, a distance of 10 feet above the 45 foot maximum height allowed in the (PUD) Planned Unit Development zoning district. IX. CITY MANAGER'S REPORT: None. X. FUTURE AGENDA ITEMS: A. Workshop regarding City Hall/Public Safety Space Needs Report (8/30/05) B. lnterlocal Agreement between the City and CRA - Boynton Beach Promenade extension. (Proposed Resolution No. R05-091) Tabled to 9/20/05 C. lnterlocal Agreement between the City and CRA -- Old High School. (9/20/05) D. Agreement for the Boynton Beach-Heart of Boynton Project - Phase I (9/20/05) E. lnterlocal agreement between the City and CRA for land acquisition in the Heart of Boynton Beach. (Tabled to 9/20/05)( Proposed Resolution No. R05- 119) F. City Manager's Evaluation (October 2005) G. Notification to residential areas of ordinance changes. 6 Agenda Regular Commission Meeting Boynton Beach, FL August 2, 2005 XI. NEW BUSINESS: A. Rights-ot-way in PUD - Preliminary review of request to amend the Land Development Regulations, Chapter 2.5, Section 9, Internal PUD standards, F. RIGHTS OF WAY to allow secondary roadways within a PUD to be approved with right-of-way widths of less than 40 feet. XII. LEGAL: A. Ordinances - 2nd Reading - PUBLIC HEARING 1. Proposed Ordinance No. 05-029 RE: Amending the Land Development Regulations (LDR) Chapter 2, Zoning, Section 6 and Section 8.5, to create an overlay district to reduce the front, side interior, and side corner yard building setbacks for parcels currently zoned Office and Professional District (C-1), Neighborhood Commercial District (C-2), Community Commercial District (C-3), and General Commercial District (C-4), located within targeted areas of the CRA. 2. Proposed Ordinance No. 05-039 RE: Annexing:f: 5.5 acres of land to be reclassified and rezoned for development as part of the Knollwood PUD. 3. Proposed Ordinance No. 05-037 Comprehensive Plan Future Land Use Residential (Palm Beach County) to (Knollwood II) RE: Amending the Map from MR-5 Single Family LDR Low Density Residential. 4. Proposed Ordinance No. 05-038 RE: Rezoning from AR- Agricultural Residential (Palm Beach County) to PUD Planned Unit Development. (Knollwood II) 5. Proposed Ordinance No. 05-040 RE: Rezoning 2.54 acres from R-1-AA Single Family Residential to R-1-A Single Family Residential (Future Land Use classification to remain Low Density Residential (LDR)) for the ultimate development of 10 single family residential lots. (Gerrity) (Applicant requests postponement to August 16.) 6. Proposed Ordinance No. 05-041 RE: Amending the Land Development Regulations, Chapter 2 Zoning, Section 5(J)(2) to increase maximum building height for hospitals from 45 feet to 75 feet, while retaining existing maximum floor provision of four (4) stories. 7 Agenda Regular Commission Meeting Boynton Beach, FL August 2, 2005 7. Proposed Ordinance No. 05-042 RE: Approving the Franchise Agreement between the City of Boynton Beach and Adelphia Communications Corp. a. Proposed Resolution No. R05-125 RE: Consenting to assignment and change of control and consent to assignment of cable system and franchise. B. Ordinances -- 1st Reading 1. Proposed Ordinance No. 05-046 RE: Amending Chapter 16, "Parks and Recreation", Article II, "City Parks and Beaches" by amending Section 16-82 to provide for an increase of Beach parking permits and related fees and eliminating redundant language. C. Resolutions: 1. Proposed Resolution No. R05-131 RE: Authorizing an agreement with the State Department of Environmental Protection in furtherance of an approved outdoor recreation project to develop the Wilson Park property. 2. Proposed Resolution No. R05-132 RE: Authorizing an agreement with the State Department of Environmental Protection in furtherance of an approved outdoor recreation project to develop the Jaycee Park property. 3. Proposed Resolution No. R05-133 RE: Approving refinancing of 1996 Utility Revenue Bond. the D. Other: None. XIII. UNFINISHED BUSINESS: A. Building Colors along Major Roadways (CDRV 05-009) Proposal to amend the Land Development Regulations, Chapters, 4 and 9 to limit building colors, and require the review/approval for changes to building colors for buildings located along Boynton Beach Boulevard, Federal Highway, and Congress Avenue. (Tabled to 8/2/05) 8 Agenda Regular Commission Meeting Boynton Beach, FL August 2, 2005 XIV. ADJOURNMENT: NOTICE IF A PERSON DECIDES TO APPEAL ANY DECISION MADE BY THE CITY COMMISSION WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING, HE/SHE WILL NEED A RECORD OF THE PROCEEDINGS AND, FOR SUCH PURPOSE, HE/SHE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDING IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. (F.S. 286.0105) THE CITY SHALL FURNISH APPROPRIATE AUXILIARY AIDS AND SERVICES WHERE NECESSARY TO AFFORD AN INDIVIDUAL WITH A DISABILITY AN EQUAL OPPORTUNITY TO PARTICIPATE IN AND ENJOY THE BENEFITS OF A SERVICE, PROGRAM, OR ACTIVITY CONDUCTED BY THE CITY. PLEASE CONTACT JOYCE COSTELLO, (561) 742-6013 AT LEAST TWENTY-FOUR HOURS PRIOR TO THE PROGRAM OR ACTIVITY IN ORDER FOR THE CITY TO REASONABLY ACCOMMODATE YOUR REQUEST. FIRST DRAFT AGENDA 8/1/2005 10:27 AM S :\CC\WP\CCAGEN DA \AGENDAS\YEAR 2005\080205.DOC 9 m.-ANNOUNCEMENTS 8r. PRESENTATIONS Item A.l. "c arolyn Sims Annual Family Day Picnic" Saturday , August 6th, 2005 Wilson Park, 211 NW 13th Avenue 12 - 6 p.m. ~hare in fhe tradition and vision fhat ot1e pf our great communrty S~ritSI .~e late !Clro~ ~ims, held der f~lJer hetilri~jf \ f"\~,/ f:~'x't::-: t;~:;:~':--:.~ (~i:'. \'~:f~'r<~ l:~f::.;,"!{"~ ';::: !i~W,~ "J' ~ :~~,,;, ;-'0,.,,' ~ Cpildren's ~mes, ente. ~ent&t~nd fun'{~ +he lole family! , r pi~ic b ; ~(" ~., ~ c4rs, blan., Iawt\!&~airs, , : :' ~'/ :}., ,Ie "'f' 't,,: .. nd .' ~ '. :tJ1!., i~~ reat IM,- th I>'!~ rid ~ring ,,,!~/iP b ~L of~Lo~r.s f;}:!~r~' ~~ ~~:f~, Ple~ ~II C l!aremci:loJleMc7 It; J,~ rn~~at 827-3051 ". .... 'f~;f) f ]) r'i I:' ri ,;t l a 'r V' 'J" >: . We Make life fun!! A City of Boynton Beach Recreation and Parks Department Wilson Center Event BOynton Beech Recreation and Par!>, Department III.-ANNOUNCEMENTS & PRESENTATIONS Item A.2. City Conducts School Supply Drive Vice Mayor Heads Up Annual Project The City of Boynton Beach is again collecting supplies for children in the city's schools. The "Great Boynton Beach School Supply Drive" will run through the first day of school, Wednesday, August 10, 2005. Supplies include pencils, pens, crayons, notebooks, notebook paper, backpacks, calculators, lunch boxes, scissors, rulers and glue sticks. All supplies should be new; no used items, please. Drop off points include Boynton Beach City Hall, 100 E. Boynton Beach Blvd.; Boynton Beach Public Library, 208 S. Seacrest Blvd.; City Hall in the Mall, Boynton Beach Mall, 801 N. Congress Ave., next to Macy's; and the Ezell Hester, Jr. Community Center, 1901 N. Seactest Blvd. Vice Mayor Mack McCray, who has continued the City's tradition of the school supply drive, said, "Today's students are our future leaders, and it is imperative that we provide them with the tools they need to assist them in theirE~ducation. This includes basic supplies, which will enable our young people to better focus on the learning process." The supplies will be given to the schools, which will determine how they will be distributed to the children. The City will not give the supplies directly to the students. For additional information, call (561) 742-6010. ### ..................... Jul 11 05 08:22p III.-ANNOUNCEMENTS & PRESENTATIONS Item C.2 THE FLORIDA SENATE Tallahassee, Florida 32399-1100 COMMITTEES: Transportation. VICe Chair Commerce and Consumer Services Criminal Justice Education Education Appropriations Rules and Calendar JOINT COMMITTEE: Intergovernmental Relations SENATOR RON KLEIN 30th District FAX TRANSMISSION COVER SHEET To: Fax#: From: Subject: Date: Pages: Janet 561-742-6090 Ashley Bodmer Boynton Beach City Commission Agenda July 11,2005 1 (including this cover sheet) COMMENTS: Senator Klein would like to request time on the August 2nd City Commission agenda to give the Commission a review of the 2005 legislative session. Thank you, Ashley Bodmer Legislative Aide State Senator Ron Klein 561-274-4777 REPLY TO: Cl 3333 South COngress Avenue, Suite 305 A, Defray Beach, Aorida 33445 (561) Zl4-4n7 a 42() Senate 0IIi0e Building, 404 South Monroe Street. Tallahassee. Rorida 32399-1100 (850) 487-5091 Senate's Website: www.flsenate.gov TOM LEE President of the Senate CHARLIE CLARY President Pro Tempore V. ADMINISTRATIVE ITEM A. July 17,2005 Ms. Michele Costantino eIM-.- Code Compliance Board The City of Boynton Beach 100 E. Boynton Beach Blvd. Boynton Beach, FL 33435 Dear Michele; As you know I began a new job on JW1C 1 after my earlier retirement in January. TIn I weeks later, I became President of the Board of my church, which has other unique responsibilities. With the two new positions, I do not believe that I have the time 01 th : energy at this time to devote the time which would be necessary to also be a member ( f the Code Compliance Board. For that reason, I am tendering my resignation from the Code Board, effective immediately. I appreciate the opportunity to serve on the Board and regret that such notice is necessary. I understand that there is a potential new Board member in the wit gs who may be able to fill my slot. q;;;~ Patricia Maitner ::-' V. ADMINISTRATIVE ITEM B. Pyle, Judith From: Prainito, Janet Sent: Tuesday, July 26, 2005 11 :49 AM To: Pyle, Judith Cc: Dennison, Arleen Subject: FW: With regret Judy: For the next agenda. Arleen - Thank you. From: Dennison, Arleen Sent: Tuesday, July 26,200511:45 AM To: Prainito, Janet Subject: FW: With regret Arts Commission resignation. From: Kimunity2@aol.com [mailto:Kimunity2@aol.com] Sent: Monday, July 18, 2005 6:20 PM To: DennisonA@cLboynton-beach.f1.us Subject: With regret Dear Arleen: It is with a great deal of regret that I must tender my resignation from the Arts Commission. My life and commitments have changed considerably since I became a member of the commission and I find it increasingly difficult to do justice to the position, and to my fellow commission members. I have truly enjoyed this very challenging experience and the relationships that have developed as a result. If I can be of any help in an adjunct or informal capacity, please don't hesitate to contact me. Arleen, your commitment, professionalism and generosity are remarkable; I am most fortunate to have had the opportunity to work with you. Thank you. Best wishes, Kim McGow 7/26/2005 V. ADMINISTRATIVE ITEM C. APPLICANTS ELIGIBLE FOR APPOINTMENT 08/u~/u:> LAST FIRST 1 st CHOICE 2nd CHOICE 3rd CHOICE APPUCATION NAME NAME SUBMITTED Broenig Gerald Planning & Community 4/11/05 Development Board Development Aaency Fitzpatrick Michael Planning & 2/25/05 Development Board Grcevic Sharon Planning and 12/20/04 Development Board Lender Wayne Community 1/28/05 Redevelopment Aaency Lentz Barbara Arts Commission 7/7/05 McMahon James Recreation & Parks Planning & 1/8/05 Board Development Board -~ , JAP 7/26/200511:31 AM S:\CC\WP\BOARDS\APPMENTS\Board Year 2005\APPLlCANTS ELIGIBLE FOR APPT 08 02.doc CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VI.-CONSENT AGENDA ITEM C.l. a..CU\.d b. Requested City Commission Date Fina] Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office 0 April 5, 2005 March ]4,2005 (Noon.) 0 June 7, 2005 May ]6,2005 (Noon) 0 Apri] ]9,2005 Apri] 4, 2005 (Noon) 0 June 2], 2005 June 6, 2005 (Noon) 0 May 3, 2005 Apri] ]8,2005 (Noon) 0 July 5, 2005 June 20, 2005 (Noon) 0 May]7,2005 May 2, 2005 (Noon) ~ Ju]y 19,2005 July 5, 2005 (Noon) 0 Administrative 0 Development Plans NATURE OF ~ Consent Agenda 0 New Business AGENDA ITEM 0 Public Hearing 0 Legal 0 Bids 0 UnfInished Business 0 Announcement 0 Presentation 0 City Manager's Report RECOMMENDATION: Motion to keeD this item on the table until AUGust 2. 2005 due to the fact that staff is still reviewing the cost impact Of the agreements. EXPLANATION: On April 21, 2005, the South Central Regional Wastewater Treatment & Disposal Board held its Regular Quarterly Annual meetil1g. At that time, the Board took action on items that are now before the City Commission for ratification. This City Commission ratification is the confirmation process for the action taken by the S.C.R.W.T.D. Board. PROGRAM IMPACT: None FISCAL IMPACT: None ALTERNATIvES: Not ratify their action ~ Yr]. ~~ Department Head's SIgnature ~~ ity Manager's Signature City Clerk's Office City Attorney / Finance / Human Resources S:\CC\WP\CCAGENDA\Agenda Request Memos\Agenda Item Request - SCRWTD - 05-17-05 - revised for 7-19-05 meeting.dot CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VI.-CONSENT AGENDA ITEM C.4. Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office 0 April 5, 2005 March ]4,2005 (Noon.) ~ June 7, 2005 May ]6,2005 (Noon) 0 April ]9,2005 April 4, 2005 (Noon) 0 June 2], 2005 June 6, 2005 (Noon) 0 May 3, 2005 April ]8,2005 (Noon) 0 July 5, 2005 June 20, 2005 (Noon) 0 May ]7,2005 . May 2, 2005 (Noon) 0 July] 9, 2005 July 5, 2005 (Noon) 0 Administrative 0 Development Plans NA TURE OF ~ Consent Agenda 0 New Business AGENDA ITEM 0 Public Hearing 0 Legal 0 Bids 0 UnfInished Business 0 Announcement 0 Presentation 0 City Manager's Report RECOMMENDATION: Request postponement of the ratification of the action of the South Central Regional Wastewater Treatment &. Disposal Board until JulV 5~ lOgS. ., 1\ <t I 0....- \l.& . <". EXPLANATION: On April 21, 2005, the South Central Regional Wastewater Treatment & Disposal Board held its Regular Quarterly Annual meeting. At that time, the Board took action on items that are now before the City Commission for ratification. This City Commission ratification is the confirmation process for the action taken by the S.C.R.W.T.D. Board. PROGRAM IMPACT: None FISCAL IMPACT: None AL TERNATJVES: Not ratify their action ~~arure City Clerk's Office City Attorney / Finance / Human Resources S:\CC\WP\CCAGENDA\Agenda Request Memos\Agendaltem Request - SCRWTD - Revised for 06-07-05 Meeting.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VI.-CONSENT AGENDA ITEM C.4. Requested City Commission Dale Final Form Must be Turned Requested City Commission Dale Fina] Form Must be Turned Meeting Dates in 10 City Clerk's Office Meeting Dates in to City Clerk's Office 0 April 5, 2005 March 14,2005 (Noon.) ~ June 7, 2005 May 16, 2005 (Noon) 0 April 19, 2005 April 4, 2005 (Noon) 0 June 21,2005 June 6, 2005 (Noon) 0 May 3, 2005 April 18,2005 (Noon) 0 July 5, 2005 June 20,2005 (Noon) 0 May 17, 2005 May 2, 2005 (Noon) 0 July 19,2005 July 5, 2005 (Noon) 0 Administrative 0 Development Plans NA TURE OF rg) Consent Agenda 0 New Business AGENDA ITEM 0 Public Hearing 0 Legal 0 Bids 0 Unfmished Business 0 Announcement 0 Presentation 0 City Manager's Report RECOMMENDATION: Request POstponement of the ratification of the action of the South Central Regional Wastewater Treatment &. Disposal Board until July 5, 2005. _ ~.<" EXPlANATION: On April 21, 2005, the South Central Regional Wastewater Treatment & Disposal Board held its Regular Quarterly Annual meeting. At that time, the Board took action on items that are now before the City Commission for ratification. This City Commission ratification is the confirmation. process for the action taken by the S.C.R.W.T.D. Board. PROGRAM IMPACT: None FISCAL IMPAq:, None ALTERNATIVES: Not ratify their action J2v\-~ City Manager's Signature City Clerk's Office City Attorney / Finance / Human Resources -. ~C\WP\CCAGENDA\Agenda Request Memos\Agenda ltem Request - SCRWTD _ Revised for 06-07-05 Meeting. dot S:\BVLLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOc Ros-a€>7 ~l RATIFICATION OF SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD ACTION OF April 21, 2005 WHEREAS, the South Central Regional Wastewater Treatment and Disposal Board did on April 21, 2005 by a vote of 8-0 approve AUTHORIZATION FOR THE CHAIRMAN TO SIGN THE INTERLOCAL AGREEMENT FOR THE DELIVERY AND USE OF RECLAIMED WATER WITH BOYNTON BEACH. EFFECTIVE AS OF OCTOBER 1, 2005. WHEREAS, said Board action requires ratification by the City of Boynton Beach and the City of Delray Beach. NOW, THEREFORE, the City of Boynton hereby ratifies said Board action independently. The above action is hereby ratified in open session by the City of Boynton Beach this D- day of M A'( , :A O()!) , by a vote. CITY OF BOYNTON BEACH By: Mayor Attest: City Clerk Approved as to form: City Attorney R05 -DB 7 INTERLOCAL AGREEMENT FOR THE DELIVERY AND USE OF RECLAIMED IRRIGATION WATER THIS AGREEMENT entered into between SOUTH CENTRAL REGIONAL W ASTEW A TER TREATMENT AND DISPOSAL BOARD, with a mailing address of 1801 North Congress Avenue, Delray Beach, Florida 33445, hereinafter called "BOARD," and the CITY OF BOYNTON BEACH, a Florida municipal corporation, with a mailing address of _ , Boynton Beach, Florida , hereinafter called "BOYNTON BEACH." WIT N E SSE T H: WHEREAS, BOARD maintains and operates an area-wide Wastewater Treatment System which is capable of producing reclaimed water which may be used for productive and beneficial purposes for agricultural and urban irrigation in accordance with local, state and federal guidelines; and WHEREAS, the BOARD is a Special District created by lnterlocal Agreement between BOYNTON BEACH and the City of Delray Beach for the pUrpose of treating wastewater produced by the customers of BOYNTON BEACH and the City ofDelray Beach, as weU as producing reclaimed water therefrom .and distributing the same to BOYNTON BEACH and the \., \, '" City of Delray Beach for redistribution to their customers; and WHEREAS, BOARD agrees to deliver reclaimed water and BOYNTON BEACH agrees to receive and beneficially use this reclaimed water for the purposes set forth in this Agreement; and WHEREAS, local governments are encouraged to implement programs for the use of reclaimed water by the State of Florida; and WHEREAS, BOARD has determined to assist the citizens of the BOARD's regional area who utilize large quantities of groundwater by making available reclaimed water as an alternative source of water supply; and WHEREAS, BOARD operates a reclaimed water program approved by the Department of Environmental Protection. NOW THEREFORE, based upon the foregoing, the parties agree to the following terms and conditions: 1. TERM OF AGREEMENT, COSTS AND METERING BOARD shall deliver and BOYNTON BEACH shall accept and use reclaimed water to fulfill their irrigation needs, produced by BOARD at the South Central Regional Wastewater Reclaimation Plant unless the flow is unavailable. Such water shall be delivered to location(s), hereinafter the "delivery point," as described in Exhibit "A." BOARD shall perform its obligations of delivery of reclaimed water and BOYNTON BEACH shall perform its obligation of acceptance of such water as herein provided. (a) This Agreement shall be effective until terminated by either party. (b) The BOARD will make available to BOYNTON BEACH up to fifty percent (50%) ofthe reclaimed water produced by the Regional Facility. '. (c) BOYNTON BEACH will pay to the BOARD a monthly ~ consumption charge which will be adjusted annually effective October 1 of each year based upon the rate set by the BOARD. Notwithstanding the foregoing, in order to meet the fixed overload of the reuse system during the initial year of operation, BOYNTON BEACH, the BOARD and the City of Del ray Beach each will need to guarantee a minimum purchase per month. -2- Accordingly, BOYNTON BEACH agrees to pay a minimum of Eighteen Thousand Six Hundred Dollars ($18,600.00) per month regardless of the consumption charge for the volume of reclaimed water actua]]y received being lower than minimum purchase during the first year of this Agreement, with the minimum purchase to be adjusted annually thereafter by the parties. To the extent that the BOARD shaH incur a deficit in its reclaimed water revenues compared to the cost of producing same, BOYNTON BEACH agrees to pay to the BOARD fifty percent (50%) of such deficit. (d) BOYNTON BEACH acknowledges that the BOARD has other large users of reclaimed water, which currently have contracts with the BOARD. The BOARD wiH supply its reclaimed water customers based on their contract priority and their beneficial use of the water should a shortfall of supply occur. 2. USE OF RECLAlMED WATER; RESPONSIBILITY FOR IRRlGATION SYSTEM (a) BOYNTON BEACH shall use reclaimed water delivered by the -- BOARD for irrigation or for other non-potable purposes in any manner detennined by BOYNTON BEACH, except that use, application and discharge of reclaimed water shan comply with local, state, and federal regulations. (b) BOYNTON BEACH shaH be solely responsible for the operation and mainfenance of all portions of the distribution and irrigation system located within the subject property boundaries specified in Exhibit "A," attached herewith. 3. WATEROUALITY BOARD agrees that reclaimed water delivered under this Agreement shall -3- meet or exceed the requirements of Chapter 62-610, Part II1, Florida Administrative Code and the standards set forth in Exhibit "B." 4. VOLUME OF DELIVERY The normal operating pressure range for the reclaimed water system is between 50 psi and 70 psi. The BOARD will make every effort to deliver reclaimed water at a minimum pressure of 60 psi at point of delivery. Should BOYNTON BEACH wish to alter the reclaimed water operating delivery pressure, it shall be BOYNTON BEACH'S sole responsibility to furnish and install a pressure reducing valve or booster pump on the property side of the meter service. Reclaimed water shall be delivered by the BOARD to only one delivery point as mutually determined by the BOARD and BOYNTON BEACH. BOYNTON BEACH will be responsible for distribution on its property beyond said point. BOYNTON BEACH hereby provides a license to the BOARD to enter on BOYNTON BEACH'S property for the purposes of access to monitoring wells, if applicable for inspection, and to determine compliance of the use of reclaimed water of the distribution system. The BOARD will, at its expense, construct, operate, and maintain the transmission lines to the delivery point. BOYNTON BEACH shall not request more reclaimed water than can be beneficially used by BOYNTON BEACH. 5. DELIVERY OF RECLAIMED WATER UNDER ADVERSE '" CONDITIONS Unforeseen circumstances may necessitate modification of normal delivery of reclaimed water. If BOARD'S system or BOYNTON BEACH'S transmission or distribution system fails for reasons or events beyond either party's control; then, delivery of -4- reclaimed water under this Agreement may be interrupted or limited in quantity. The BOARD and BOYNTON BEACH shal1 make al1 reasonable efforts to make prompt repairs to its respective system, Each party shaJI be obligated to the other to provide immediate oral notice of such failures so that alternate systems may be put into operation as soon as possible. Nothing in this agreement shal1 require the interconnection of the South Central Regional Wastewater Rec1aimation Plant to provide additional flow to BOYNTON BEACH. 6. TEMPORARY SUSPENSION OF DELIVERY The BOARD may suspend delivery of reclaimed water should the quality of the reclaimed water exceed any of the parameters for water quality shown on Exhibit "B." Nothing in this Agreement shaH prevent BOYNTON BEACH from keeping a permitted backup supply to replace this reclaimed water should it become unavailable for whatever reason, 7. OPERA DON AND MAINTENANCE PRACTICES BOYNTON BEACH will apply reclaimed water in accordance with all appropriate local, state, and federal rules and regulations. Irrigation practices are to be limited to those areas permissible by the Department of Environmental Protection and identified in Exhibit "A" of the Agreement. Reclaimed water irrigation systems shall protect human health and the environment; which includes, but is not limited to, the following: (a) BOYNTON BEACH shall install Reclaimed Water advisory signs as appropriate. The signs shaH be installed and properly maintained by BOYNTON BEACH around sites utilizing J'eclaimed water to designate the nature of the water and its non-potability. In compliance with applicable rules and the following items: -5- Property access points Along road frontage Along adjoining residential usage For (Spanish) speaking employees - use sign in Spanish For golf courses - sign at first and tenth tee (b) BOYNTON BEACH will take reasonable precautions to clearly identify reclaimed water irrigation systems to prevent inadvertent human consumption. ( c) BOYNTON BEACH shall ensure that no cross-connections are made between the reclaimed water system and other water systems, which includes the installation of back flow prevention devices on the potable water system; and on existing wells that are to remain connected for either potable water usage or for irrigation system purposes. The installation of back flow devices shall adhere to BOYNTON BEACH'S (use), as amended. BOYNTON BEACH shall be responsible for ensuring the installation of the required backflow preventing devices. (d) BOYNTON BEACH shall take reasonable precautions to inform its employees, agents, residents, and invitees of the reclaimed water system, to prevent inadvertent human consumption. In addition, if applicable, BOYNTON BEACH shall inform all existing r~sidents and new residents-regarding the proper use of reclaimed water. (e) All costs for operating and maintaining BOYNTON BEACH'S irrigation distribution system shall be paid by BOYNTON BEACH. 8. MONITORlNG (a) BOYNTON BEACH shall give its approval to the BOARD to conduct soil borings and locate monitoring wells, if applicable, on the property in areas agreeable -6- to BOYNTON BEACH so as not to interfere with BOYNTON BEACH'S operations. These monitoring wells shall be installed and sampled at periodic intervals by the BOARD, at its option. (b) The BOARD shall be responsible for all permits to install monitoring wells and responsible for abandonment of the well should it no longer be necessary for monitoring. 9. EXCUSE FROM PERFORMANCE BY GOVERNMENTAL ACTS If for any reason during the term of this Agreement, governmental agencies shall fail to issue necessary permits, grant necessary approvals, or shall require any change in the operation of the treatment, transmission and distribution systems or the application and use of reclaimed water by BOYNTON BEACH, then to the extent that such requirements shall affect the ability of any party to perform any of the terms of this Agreement, the affected party shall be excused from performance thereof and this Agreement shall be amended by the parties hereto in conformity with such permits, approvals, or requirements. If continued performance of the Agreement is not possible, the Agreement shall be terminated. lO. TERMINA TION OF AGREEMENT Either party shall have the right to terminate this Agreement upon sixty (60) days written notice to the other party. 11. DISCLAIMER OR REPRESENTATION AND WARRANTIES The BOARD does not represent or warrant that the reclaimed water delivered shall increase the productivity of the land described in Exhibit "A" nor result in changes of any kind to the land, crops or vegetation. -7- 12. NOTICES All notices required or authorized under this Agreement shall be given in writing and shall be delivered by U.S. Mail or by hand delivery to the party or parties, addressed as follows: City of BOYNTON BEACH Boynton Beach, FL 33444 With a copy to: City Attorneys' Office Boynton Beach, FL 33444 South Central Regional Wastewater Treatment & Disposal Board 1801 North Congress Avenue BOYNTON BEACH, FL 33445 With a copy to: Robert W. Federspiel, P.A. Spinner, Dittman, Federspiel & Dowling, LLP 151 N.W. First Avenue BOYNTON BEACH, FL 33444 13. INSPECTION The BOARD shall have the right when reasonably necessary to allow BOARD employees or agents to enter upon the subject property to review and inspect BOYNTON BEACH'S operating practices, to inspect meters, irrigation equipment, monitoring wells, potential cross connections, flowage, and the like, as they relate to this Agreement. -8- 14. HOLD HARMLESS To the extent permitted by law, BOYNTON BEACH shall hold the BOARD, its agents, employees, assigns, contractors or subcontractors harmless for any damage caused by the BOARD'S inability to deliver water to the delivery point or for damage which occurs as a result of the quality of the reclaimed water so long as it meets the standards outlined in paragraph 3. 15. DISCLAIMER OF THIRD PARTY BENEFICIARIES This Agreement is solely for the benefit of the parties hereto and no right or cause of action shall accrue to, by reason hereof, or for the benefit of any third party not a party hereto. 16. SEVERABILITY 1f any part of this Agreement or any application thereof to any person or circumstance is declared invalid for any reason, then such part, section, subsection, or other portion, or the prescribed application thereof, shaH be severable and the remaining provisions of this Agreement, and aH applications thereof not having been declared invalid, shall remain in effect. ...., 1. 17. APPLICABLE LAW This Agreement shall be construed according to the laws of Florida and any action regarding this Agreement shaH be filed in the Fifteenth Judicial Circuit in and for Palm Beach County. 18. EXHIBITS AND ADDENDUM This Agreement incOlporates the following exhibits and addendum which -9- are specificaJJy made a part hereof. Exhibit "A" - Legal Description of Property and Map of the Property Exhibit "B" - Reclaimed Water Quality Parameters THIS WRITING (with Exhibits "A" and "B") constitutes the entire Agreement between the parties and has been entered into voluntarily and with independent advice and legal counsel and has been executed by the authorized representative of each party on the date written below. Modifications to and waivers of the provisions herein shall be made only in writing by the parties hereto. SIGNED AND SEALED this 1L day of A p r i 1 , 200L. SOUTH CENTRAL REGIONAL W ASTEW A TER TREATMENT AND DISPOSAL BOARD ByL c ~.r-~ Printed Name: Mui r C. Ferguson Title: Ch a i rpe r so n :~s~ Printed N~ : 4\>-.-\- J ~~ \ Title: ~;.. o;:"~ .....)".6.- Approved as to legal form and sufficiency: 52-=-> f- Robe~.Feders~ . -10- ATTEST: City Clerk Approved as to legal fonn and sufficiency: By: Printed Name: Title: '. . .;. CITY OF BOYNTON BEACH By: Jerry Taylor, Mayor -11- INTERLOCAL AGREEMENT FOR THE DELIVERY AND USE OF RECLAIMED IRRIGATION WATER THIS AGREEMENT entered into between SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD, with a mailing address of 1801 North Congress Avenue, Delray Beach, Florida 33445, hereinafter called "BOARD," and the CITY OF BOYNTON BEACH, a Florida municipal corporation, with a mailing address of _ , Boynton Beach, Florida , hereinafter called "BOYNTON BEACH." WIT N E SSE T H: WHEREAS, BOARD maintains and operates an area-wide Wastewater Treatment System which is capable of producing reclaimed water which may be used for productive and beneficial purposes for agricultural and urban irrigation in accordance with local, state and federal guidelines; and WHEREAS, the BOARD is a Special District created by Interlocal Agreement between BOYNTON BEACH and the City ofDelray Beach for the purpose of treating wastewater produced by the customers of BOYNTON BEACH and the City of Delray Beach, as well as producing reclaimed water therefrom and distributing the same to BOYNTON BEACH and the City of Del ray Beach for redistribution to their customers; and WHEREAS, BOARD agrees to deliver reclaimed water and BOYNTON BEACH agrees to receive and beneficially use this reclaimed water for the purposes set forth in this Agreement; and WHEREAS, local governments are encouraged to implement programs for the use of reclaimed water by the State of Florida; and WHEREAS, BOARD has determined to assist the citizens of the BOARD's regional area who utilize large quantities of groundwater by making available reclaimed water as an alternative source of water supply; and WHEREAS, BOARD operates a reclaimed water program approved by the Department of Environmental Protection. NOW THEREFORE, based upon the foregoing, the parties agree to the following terms and conditions: I. TERM OF AGREEMENT, COSTS AND METERING BOARD shall deliver and BOYNTON BEACH shall accept and use reclaimed water to fulfill their irrigation needs, produced by BOARD at the South Central Regional Wastewater Reclaimation Plant unless the flow is unavailable. Such water shall be delivered to location(s), hereinafter the "delivery point," as described in Exhibit "A." BOARD shaH perform its obligations of delivery of reclaimed water and BOYNTON BEACH shall perform its obligation of acceptance of such water as herein provided. (a) This Agreement shall be effective until terminated by either party. (b) The BOARD will make available to BOYNTON BEACH up to fifty percent (50%) of the reclaimed water produced by the Regional Facility. (c) BOYNTON BEACH will pay to the BOARD a monthly consumptibn charge which will be adjusted annually effective October 1 of each year based upon the rate set by the BOARD. Notwithstanding the foregoing, ill order to meet the fixed overload of the reuse system during the initial year of operation, BOYNTON BEACH, the BOARD and the City ofDelray Beach each will need to guarantee a minimum purchase per month. -2- Accordingly, BOYNTON BEACH agrees to pay a minimum of Eighteen Thousand Six Hundred Dollars ($18,600.00) per month regardless of the consumption charge for the volume of reclaimed water actually received being lower than minimum purchase during the first year of this Agreement, with the minimum purchase to be adjusted annually thereafter by the parties. To the extent that the BOARD shall incur a deficit in its reclaimed water revenues compared to the cost of producing same, BOYNTON BEACH agrees to pay to the BOARD fifty percent (50%) of such deficit. (d) BOYNTON BEACH acknowledges that the BOARD has other large users of reclaimed water, which currently have contracts with the BOARD. The BOARD will supply its reclaimed water customers based on their contract priority and their beneficial use of the water should a shortfall of supply occur. 2. USE OF RECLA.llv1ED WATER: RESPONSIBILITY FOR IRRIGATION SYSTEM (a) BOYNTON BEACH shall use reclaimed water delivered by the BOARD for irrigation or for other non-potable purposes in any mafmer determined by BOYNTON BEACH, except that use, application and discharge of reclaimed water shall comply with local, state, and federal regulations. (b) BOYNTON BEACH shall be solely responsible for the operation and maintenance of all portions of the distribution and irrigation system located within the subject property boundaries specified in Exhibit "A," attached herewith. 3. WATER QUALITY BOARD agrees that reclaimed water delivered under this Agreement shall -3- meet or exceed the requirements of Chapter 62-610, Part ill, Florida Administrative Code and tbe standards set forth in Exhibit "B." 4. VOLUME OF DELIVERY The nonna] operating pressure range for the reclaimed water system is between 50 psi and 70 psi. The BOARD will make every effort to deliver reclaimed water at a minimum pressure of 60 psi at point of delivery. Should BOYNTON BEACH wish to alter the reclaimed water operating delivery pressure, it shaH be BOYNTON BEACH'S sole responsibility to furnish and install a pressure reducing valve or booster pump on the property side of the meter service. Reclaimed water shall be delivered by the BOARD to only one delivery point as mutually detennined by the BOARD and BOYNTON BEACH. BOYNTON BEACH will be responsible for distribution on its property beyond said point. BOYNTON BEACH hereby provides a license to the BOARD to enter on BOYNTON BEACH'S property for the purposes of access to monitoring wells, if applicable for inspection, and to determine compliance of the use of reclaimed water of the distribution system. The BOARD will, at its expense, construct, operate, and maintain the transmission lines to the delivery point. BOYNTON BEACH shall not request more reclaimed water than can be beneficially used by BOYNTON BEACH. 5. DELIVERY OF RECLAIMED WATER UNDER ADVERSE CONDITIONS Unforeseen circumstances may necessitate modification of normal delivery of reclaimed water. If BOARD'S system or BOYNTON BEACH'S transmission or distribution system fails for reasons or events beyond either party's control; then, delivery of -4- reclaimed water under this Agreement may be interrupted or limited in quantity. The BOARD and BOYNTON BEACH shall make all reasonable efforts to make prompt repairs to its respective system. Each party shall be obligated to the other to provide immediate oral notice of such failures so that alternate systems may be put into operation as soon as possible. Nothing in this agreement shall require the interconnection of the South Central Regional Wastewater Reclaimation Plant to provide additional flow to BOYNTON BEACH. 6. TEMPORARY SUSPENSION OF DELIVERY The BOARD may suspend delivery of reclaimed water should the quality of the reclaimed water exceed any of the parameters for water quality shown on Exhibit "B." Nothing in this Agreement shall prevent BOYNTON BEACH from keeping a permitted backup supply to replace this reclaimed water should it become unavailable for whatever reason. 7. OPERA TION AND MAlNTENANCE PRACTICES BOYNTON BEACH will apply reclaimed water in accordance with all appropriate local, state, and federal rules and regulations. Irrigation practices are to be limited to those areas permissible by the Department of Environmental Protection and identified in Exhibit "A" of the Agreement. Reclaimed water irrigation systems shall protect human health and the environment; which includes, but is not limited to, the following: .: (a) BOYNTON BEACH shall install Reclaimed Water advisory signs as appropriate. The signs shall be installed and properly maintained by BOYNTON BEACH around sites utilizing reclaimed water to designate the nature ofthe water and its non-potability. In compliance with applicable rules and the following items: -5- Property access points Along road frontage Along adjoining residential usage For (Spanish) speaking employees - use sign in Spanish For golf courses - sign at first and tenth tee (b) BOYNTON BEACH will take reasonable precautions to clearly identifY reclaimed water inigation systems to prevent inadvertent hmnan consmnption. (c) BOYNTON BEACH shall ensure that no cross-connections are made between the reclaimed water system and other water systems, which includes the installation of back flow prevention devices on the potable water system; and on existing wells that are to remain connected for either potable water usage or for irrigation system purposes. The installation of back flow devices shall adhere to BOYNTON BEACH'S (use), as amended. BOYNTON BEACH shall be responsible for ensuring the installation ofthe required backflow preventing devices. (d) BOYNTON BEACH shall take reasonable precautions t6 infonll ~ ': its employees, agents, residents, and invitees of the reclaimed water system, to prevent inadvertent human consmnption. In addition, if applicable, BOYNTON BEACH shall inform all existing residents and new residents regarding the proper use of recl~ed water. 0,. \ (e) All costs for operating and maintaining BOYNTON BEACH'S inigatioii distribution system shall be paid by BOYNTON BEACH. 8. MONITORING (a) BOYNTON BEACH shall give its approval to the BOARD to conduct soil borings and locate monitoring wells, if applicable, on the property in areas agreeable -6- to BOYNTON BEACH so as not to interfere with BOYNTON BEACH'S operations. These monitoring wells shall be installed and sampled at periodic intervals by the BOARD, at its option. (b) The BOARD shall be responsible for all permits to install monitoring wells and responsible for abandonment of the well should it no longer be necessary for monitoring. 9. EXCUSE FROM PERFORMANCE BY GOVERNMENTAL ACTS If for any reason during the term of this Agreement, governmental agencies shall fail to issue necessary permits, grant necessary approvals, or shall require any change in the operation of the treatment, transmission and distribution systems or the application and use of reclaimed water by BOYNTON BEACH, then to the extent that such requirements shall affect the ability of any party to perform any of the terms of this Agreement, the affected party shall be excused from performance thereof and this Agreement shall be amended by the parties hereto in conformity with such permits, approvals, or requirements. If continued performance of the Agreement is not possible, the Agreement shaIrbe terminated. 10. TERMINATION OF AGREEMENT Either party shall have the right to terminate this Agreement upon sixty (60) days written notice to the other party. 11. DISCLAIMER OR REPRESENTATION AND WARRANTIES The BOARD does not represent or warrant that the reclaimed water delivered shall increase the productivity of the land descnoed in Exhibit "An nor result in changes of any kind to the land, crops or vegetation. -7- 12. NOTICES All notices required or authorized under tms Agreement shall be given in writing and shall be delivered by U.S. Mail or by hand delivery to the party or parties, addressed as follows: City of BOYNTON BEACH Boynton Beach, FL 33444 With a copy to: City Attorneys' Office Boynton Beach, FL 33444 South Central Regional Wastewater Treatment & Disposal Board 1801 North Congress Avenue BOYNTON BEACH, FL 33445 With a copy to: Robert W. Federspiel, P.A. Spinner, Dittman, Federspiel & Dowling, LLP 151 N.W. First Avenue BOYNTON BEACH, FL 33444 '. ' 13. INSPECTION The BOARD shall have the right when reasonably necessary to allow BOARD employees or agents to enter upon the subject property to review and inspect BOYNTON BEACH'S operating practices, to inspect meters, irrigation equipment, monitoring wells, potential cross connections, flowage, and the like, as they relate to this Agreement. -8- 14. HOLD HARMLESS To the extent permitted by law, BOYNTON BEACH shall hold the BOARD, its agents, employees, assigns, contractors or subcontractors harmless for any damage caused by the BOARD'S inability to deliver water to the delivery point or for damage which occurs as a result of the quality of the reclaimed water so long as it meets the standards outlined in paragraph 3. 15. DISCLAIMER OF THIRD PARTY BENEFICIARIES This Agreement is solely for the benefit of the parties hereto and no right or cause of action shall accrue to, by reason hereof, or for the benefit of any third party not a party hereto. 16. SEVERABILITY If any part of this Agreement or any application thereof to any person or circumstance is declared invalid for any reason, then such part, section, subsection, or other portion, or the prescribed application thereof, shall be severable and the remaining provisions of this Agreement, and all applications thereof not having been declared invalid, shall remain in effect. 17. APPLICABLE LAW This Agreement shall be construed according to the laws of Florida and any action regarding this Agreement shall be filed in the Fifteenth Judicial Circuit in and for Palm Beach County. 18. EXHIBITS AND ADDENDUM This Agreement incorporates the following exhibits and addendum which -9- are specifically made a part hereof Exhibit "A" - Legal Description of Property and Map of the Property Exhibit "B" - Reclaimed Water Quality Parameters THlS WRITING (with Exhibits "A" and "B") constitutes the entire Agreement between the parties and has been entered into volunt~ly and with independent advice and legal counsel and has been executed by the authorized representative of each party on the date written below. Modifications to and waivers of the provisions herein shall be made only in writmg by the parties hereto. SIGNED AND SEALED this ~ day of A p r i 1 , 200~. SOUTH CENTRAL REGIONAL W ASTEW A TER TREA TMENT AND DISPOSAL BOARD BY:~ L_ ~r"--- Printed Name: Mil; r r Fprgll<:nn Title: C h air per SOn ATTEST: ~ted~2i:.( J Title: \:}C.?~.hv.. Dl.r;c.,b.,,.. .,........ Approved as to legal fonn and sufficiency: ROb~~-;;;:;JP( -10- ATTEST: City Clerk Approved as to legal form and sufficiency: By: Printed Name: Title: CITY OF BOYNTON BEACH By: Jerry Taylor, Mayor -11- ASSIGNMENT AGREEMENT ROb- oe7 *4 THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of ,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter 163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON." WITNESSETH; WHEREAS, the BOARD has heretofore entered into that certain Agreement with Delray Dunes Golf and Country Club, concerning delivery and acceptance of reclaimed water dated the 18th day of January, 1996, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water Agreement;" and WHEREAS, the BOARD is modifying its reclaimed -water operations as a result of an amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD wiJI provide wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach; and WHEREAS, in order to implement such modification and the mode of operation as above described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such assignment, shall assume aU of the rights, duties and obligations of the BOARD under said Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration from one party to the other, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows: 1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed Water Agreement to BOYNTON, effective the 1st day of October, 2005. ,2. ,BOYNTON hereby agrees to accept and assume aU rights, benefits and obligations created under the said Reclaimed Water Agreement pursuant to this assignment. -:.~ IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day and year first above written. souro CENTRAL REGIONAL WASTEWATER T NT AND DISPOSAL BOARD APPROVED AS TO FORM ~~Lj Bofd AttorneY .. ATTESTED BY: Secretary APPROVED AS TO FOR1vl City Attorney CITY OF BOYNTON BEACH By: Mayor ASSIGNMENT AGREEMENT R0.5-087 *4 THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of ,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter 163.01, hereinafterreferred to as the "BOARD," and the CITY OF BOYNTON BEACH; FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON." WITNESSETH; WHEREAS, the BOARD has heretofore entered into that certain Agreement with DeJray Dunes Golf and Country Club, concerning delivery and acceptance of reclaimed water dated the 18th day of January, 1996, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water Agreement;" and WHEREAS, the BOARD is modifYing its reclaimed water operations as a result of an amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD will provide wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach; and WHEREAS, in order to implement such modification and the mode of operation as above described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such assignment, shaH assume an of the rights, duties and obligations of the BOARD under .SWd Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration from one party to the other, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as fonows: 1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed Water Agreement to BOYNTON, effective the 1st day of October, 2005. ~ 2., BOYNTON hereby agrees to accept and assume all rights, benefits and obligations created under the said Reclaimed Water Agreement pursuant to this assignment. .., ~ IN WIlNESS WHEREOF, the parties have executed this Assignment Agreement the day and year first above written. SOUTH CENTRAL REGIONAL W ASTEW A TER A TMENT AND DISPOSAL BOARD ~ erguson Chairman APPROVED AS T910RM r2~1 Bo.atd Attorney ATTESTED BY: Secretary APPROVED AS TO FOR1vl City Attorney '. CITY OF BOYNTON BEACH By: Mayor f\05-087 ~4 ASSIGNMENT AGREEMENT THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of ,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter ] 63.0], hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON." WITNESSETH; WHEREAS, the BOARD has heretofore entered into that certain Agreement with The Country Club of Florida, concerning delivery and acceptance of reclaimed water dated the 18th day of January, 1996, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water Agreement;" and WHEREAS, the BOARD is mOdifYing its reclaimed-water operations as a result of an amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD win provide wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach; and WHEREAS, in order to implement such modification and the mode of operation as above described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such assignment, shall assume an of the rights, duties and obligations of the BOARD under .s.aid Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration from one paT!Y to the other, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows: 1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed Water Agreement to BOYNTON, effective the 1st day of October, 2005. ,2...BOYNTON hereby agrees to accept and assume all rights, benefits and obligations created under the said Reclaimed Water Agreement pursuant to this assignment. -.:., IN WITNESS WHEREOF, the parties have executed this Assignment Agreementthe day and year first above written. SOUTH CENTRAL REGIONAL W ASTEW A TER ,;J'REATMENT AND DISPOSAL BOARD ~. (~~. By: w... / Printed Name: Mil; r r. APPROVED AS TO FORM Bplto~y4 ATTESTED BY: Secretary APPROVED AS TO FORM City Attorney ..,.~ CITY OF BOYNTON BEACH By: Mayor p..ps-{)e> 7 . -:fl::t.t ASSIGNMENT AGREEMENT THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of ,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter ]63.0], hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH, FLORJDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON." WITNESSETH; WHEREAS, the BOARD has heretofore entered into that certain Agreement with The Country Club of Florida, concerning delivery and acceptance of reclaimed water dated the 18th day of January, 1996, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water Agreement;" and WHEREAS, the BOARD is modifying its reclaimed water operations as a result of an amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD wiJI provide wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach; and WHEREAS, in order to implement such modification and the mode of operation as above described, the BOARD, by this Agreement, intends to assign aU of its rights, duties and obligations under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such assignment, shaH assume all of the rights, duties and obligations of the BOARD under .said Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration from one party to the other, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows: 1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed Water Agreement to BOYNTON, effective the pI day of October, 2005. c,2.,BOYNTON hereby agrees to accept and assume aU rights, benefits and obligations created under the said Reclaimed Water Agreement pursuant to this assignment. ~ IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day and year first above written. SOUTH CENTRAL REGIONAL WASTEWATER TREA T1yffiNT AND DISPOSAL BOARD a;-J )By:} t ~ / Printed Name: Mui r c: Chainnan APli?tORM B~rd Attorney ATTESTED BY: Secretary APPROVED AS TO FORM City Attorney j..... ClTY OF BOYNTON BEACH By: Mayor ASSIGNMENT AGREEMENT P-D5-DB7 ~ ~L.J THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of ,2005, by and between th80UTH CENTRAL REGIONAL WASTEWATER TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter 163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON." WITNESSETH; WHEREAS, the BOARD has heretofore entered into that certain Agreement with Hunters Run Golf & Racquet Club, concerning delivery and acceptance of reclaimed water dated the 17th day of January, 1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water Agreement;" and WHEREAS, the BOARD is modif)ring its reclaimed water operations as a result of an amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD will provide wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach; and WHEREAS, in order to implement such modification and the mode of operation as above described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such assignment, shall assume aU of the rights, duties and obligations of the BOARD under said Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration from one party to the other, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as foUows: 1. The BOARD hereby assigns aU rights, benefits and obligations under the Reclaimed Water Agreement to BOYNTON, effective theIst day of October, 2005. , 2., BOYNTON hereby agrees to accept and assume aU rights, benefits and obligations created under the said Reclaimed Water Agreement pursuant to this assignment. . IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day and year first above written. SOUTH CENTRAL REGIONAL W ASTEW A TER NT AND DISPOSAL BOARD . - E.~~~ P'N v nnted aJlle: M 11 i r r. F p r g 11 '" n n Chairman APPROVED AS TO FORM Bo2tomd ATTESTED BY: Secretary APPROVED AS TO FORM City Attorney CITY OF BOYNTON BEACH By: Mayor K05 - OB7 _ 4Fy ASSIGNMENT AGREEMENT THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of ,2005, by and between thSOUTH CENTRAL REGIONAl.. \VASTEWATER TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter 163.01, hereinafterreferred to as the "BOARD," and the CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON." WITNESSETH; WHEREAS, the BOARD has heretofore entered into that certain Agreement with Hunters Run Golf & Racquet Club, concerning delivery and acceptance of reclaimed water dated the 17th day of January, 1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water Agreement;" and WHEREAS, the BOARD is modifying its reclaimed water operations as a result of an amendment to the InterIocal Agreement creating the BOARD, whereby the BOARD will provide wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach; and WHEREAS, in order to implement such modification and the mode of operation as above described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such assignment, shall assume all of the rights, duties and obligations of the BOARD under said Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration from one party to the other, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as foIlows: 1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed Water Agreement to BOYNTON, effective theIst day of October, 2005. ,2.,BOYNTON hereby agrees to accept and assume an rights, benefits and obligations created under the said Reclaimed Water Agreement pursuant to this assignment. ~ ~ IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day and year first above written. SOUTH CENTRAL REGIONAL W ASTEW A TER MENT AND DISPOSAL BOARD , L- APPROVED AS TO FOWvt ~J-t/j Boaf(~ttorney - ATTESTED BY: Secretary APPROVED AS TO FORM City Attorney CITY OF BOYNTON BEACH By: Mayor -c AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD AND HUNTERS RUN GOLF & RACQUET CLUB CONCERNING DELIVERY AND ACCEPTANCE OF RECLAIMED WATER THIS AGREEMENT is made and entered into on this 00<:;1 \1 day of ~, by and between South Central Regional Wastewater TreatmeA~~lnd Disposal Board, a municipal corporation created pursuant to the laws of the State of Florida (hereinafter BOARD), and Hunters Run Golf & Racquet Club, (hereinafter RECIPIENT). Accordingly, for and in consideration contained herein, mutual understandings contained herein, and other consideration, sufficiency of which is hereby acknowledged the parties covenant and agree as follows: of the recitals and agreements the receipt and by the parties, SECTION 1. Recitals. The below recitals are true and correct and form a material part of this Agreement. 1.1 The parties hereto represent to one another that each has the full power and authority to enter into this Agreement and to carry out their respective obligations thereunder. The BOARD is composed of the Cities of Boynton Beach and Delray Beach (the "Cities"), pursuant to an Interlocal Agreement entered into pursuant to Chapter 163, Florida Statutes. 1.2 The parties recognize that reuse of Reclaimed Water is in the public interest, as it recaptures an otherwise wasted and unused water resource. The BOARD owns and operates wastewater facilities which it proposes to upgrade to produce Reclaimed Water suitable for irrigation o-f areas, such as golf courses, parks, school grounds and cemeteries, and RECIPIENT is willing to accept such Reclaimed Water for irrigation purposes in the public interest. 1.3 In a normal-' year, RECIPIENTS will irrigate approoximately 240 days and most of RECIPIENT'S daily requirements will be needed during approximately 12 hours commencing about sundown. BOARD agrees to use its best eff~rts to supply Reclaimed Water on demand to RECIPIENT up to the volume and at the charge set forth in this Agreement. RECIPIENT has valuable golf courses that require access to such Reclaimed Water and has expended substantial money and effort and has fo~egone other avenues to meet its irrigation requirements in reliance on this Agreement. The BOARD is not required to upgrade its w~stewater system to produce Reclaimed Water but is doing so in reliance upon the RECIPIENT entering into this Agreement. 8.'-~' RWSE/IlUHTERSlWN/DELlVER2 .J\GR 1 1.4 The RECIPIENT owns and controls land which is described in Exhibit "A" (the "Property"), attached and made a part hereof by reference. 1.5 RECIPIENT agrees to: (a) irrigate the Property using Reclaimed Water; (b) maintain the storage facility, if applicable, ponds and lakes, if applicable, pumps and irrigation system to be located on the Property from the point of delivery; and (c) upgrade its irrigation system when reasonable and economical to utilize the volume of Reclaimed Water accepted from the BOARD and as required to meet any federal, state, or local requirements, (d) maintain compliance with the operating restrictions for protecting human health and the environment attached thereto as Exhibit "B". 1.6 Recipient shall accept the Reclaimed Water delivered by the BOARD and use it for irrigation of the Property. The BOARD shall be deemed to be in possession and control of the Reclaimed Water until it shall have been delivered to the RECIPIENT at the Point of Delivery. After such delivery, the RECIPIENT shall be deemed to be in possession and control thereof. 1.7 The RECIPIENT agrees to maintain all Federal, State and governmental permits issued to it and necessary to allow it to receive and utilize the Reclaimed Water pursuant to the terms of this Agreement. 1.8 The right of the RECIPIENT to sell, transfer or encumber the Property in areas irrigated with the Reclaimed Water shall not be restricted by this Agreement. This Agreement shall run with the land so long as the use of a major portion of the Property shall continue to be for golf course and related purposes. Any subsequent party in interest to such golf course or courses shall be obligated to receive and pay for Reclaimed Water under the same terms and conditions of this Agreement, unless modified by mutual consent of the BOARD and the buyer or transferee. 1.9 METER. The design and construction of the metering facil~ty shall be the responsibility of the BOARD and must be mutually approved in advance in writing by BOARD and RECIPIENT. The meter will be utilized to measure the amount of R~claimed Water delivered by the BOARD to RECIPIENT and the BOARD shall operate, maintain, cause to be calibrated, and repair said meter. 1.10 CONSTRUCTION. Upon completion of the engineering design of the metering faCility, and the acceptance of same by both parties, the metering facility will be constructed by the BOARD and placed into service. 0-6-96 REUSE/RUNTERSRUH/DELlVERZ_AGR 2 1.11 COSTS AND OPERATION. The BOARD shall bear the cost of constructing, owning. and maintaining the Reclaimed Water meter and related appurtenances and the lines interconnecting BOARD's system into the metering facility, including all valves and appurtenances up to and including the discharge flanges of the valves immediately downstream of the meter. The parties agree that the RECIPIENT shall have reasonable access to the metering facility, to all other Reclaimed Water meters, check valves, and any other appurtenances thereto, to verify flows, meter readings, meter calibrations, efficiency of the check valves, and any other performance data necessary to the operations of the Interconnection facility upon reasonable advance notice to the Bo~rd. The metering device shall be tested and calibrated, at BOARD's expense, at least once. per year and repaired if required. Any errors in meter reading and any discrepancy in meter results from a true and correct measure of Reclaimed Water flow to RECIPIENT shall be adjusted properly and retroactively to reflect the flow to RECIPIENT. Any incorrect metering device shall be repaired forthwith by the BOARD. 1.12 This agreement has been duly authorized by all named parties. Pursuant to Section 3 (C) of the Interlocal Agreement dated December 26, 1974, between the City of Boynton Beach and th~ City of Delray Beach, this Agreement and all provisions thereof have been contractually approved by a majority vote of each City Council as the act of each City, or, if such approval has not already been obtained, such approval will be obtained and certified to RECIPIENT befor:~. this Agreement shall become effective. SECTION 2. Definitions. The parties agree that in constru~ng this Agreement, the following words, phrases and terms shall have the following meanings, unless the. context requires otherwise: 2 . I "Agreement" means this Agreement between BOARD and RECIPIENT. 2.2 "FDEP" means the Florida Department of Envirorunental Proteption, and its s~ccessors. 2.3 "Fiscal Year" means October 1 to September 30 of the folLo,wing year. 2.4 "GPO" means gallons per day. 2.5 "Irrigation system" means those pump stations, lines, pipes, sprinkler heads, ponds and lakes, storage facilities, if applicable, and pertinent equipment that are located on RECIPIENT's property and used to store, spray and irrigate with Reclaimed Water' that has been treated in accordance with 11-6-96 REVSE/HUNTERSRUH/DELIVER2.AGR 3 all applicable governmental regulations and in accordance with the terms and provisions of this Agreement. 2.6 "MGD" means million gallons per day. 2.7 "Point of delivery" means the point at which divides the BOARD's wastewater facilities RECIPIENT's irrigation system, or as otherwise engineering drawings approved by both parties. the meter from the noted on 2.8 "Reclaimed Water" means wastewater that has been treated in accordance with Section 3.4 of this Agreement. 2.9 "Reclaimed Water Disposal Facilities" means those facilities necessary for the storage, if applicable, transportation and disposal of wastewater previously treated in accordance with applicable local, state and federal standards and limitation at the plant to the standard of Reclaimed Water. These facilities include, but are not limited to, any Reclaimed Water transmission facilities, irrigation systems and storage facilities, if applicable. 2.10 "Reclaimed Water Transmission Facilities" means the BOARD's facilitLes used to transmit Reclaimed Water. 2.11 "Storage Facilities" means those facilities which may be designed, permitted and constructed on the Property, if apPlicable, or upon the BOARD's property, if applicable, and which are necessary to store and hold Reclaimed Water in .,a manner that complies with regulatory requirements. 2.12 "Wastewater" means the product received by the wastewater treatment facility for treatment. 2.13 "Wastewater Facilities" means the BOARD's plant located at 1801 North Congress Avenue, Delray Beach, Florida, and Reclaimed Water transmission facilities, including all interceptors, lines, pipes, meters, couplings, pumps, force mains, and appurtenant equipment necessary to treat and transmit the Reclaimed-Water. SECTION 3. Grant of Licenso and Easement. R~CIPIENT hereby gran-ts to BOARD an easement over the Property, including alS foot:utility easement to be mutually agreed upon and located in the approximate location depicted on Exhibit "C" attached hereto, to allow construction, operation, maintenance and repair of the BOARD's Reclaimed Water transmission main to the point of delivery, and the right to transmit, deliver and dispose of Reclaimed Water through the irrigation system and storage facility, if applicable, on the Property in accordance with and subject to the following conditions: 8-1>-96 REUSE/HUnTERSRUH/DELJVER2.AGR 4 3.1 Desiqn and installation of Certain Facilities. BOARD agrees to design, permit, install and operate improvements and additions at its existing wastewater treatment plant, and the BOARD's Reclaimed Water transmission facilities, and to Permit effluent disposal facilities in order to provide Reclaimed Water at the point of delivery. RECIPIENT agrees to design, permit, install and operate, at its sole expense, any storage facility, if applicable, and the irrigation system on the Property up to the point of delivery. 3.2 Permits and Approval for the Irriqation System. Recipient shall be responsible, in cooperation with Board, for obtaining and maintaining necessary governmental permits and approvals in order to install and operate the irrigation system: provided, however, that Board shall be responsible for obtaining and maintaining all permits for Reclaimed Water disposal facilities. For all wastewater facilities located on its side of the point of delivery, Board shall be solely responsible for obtaining, compiling, providing and complying with all monitoring, sampling, testing, and reporting requirements for the Reclaimed Water, which may be imposed by government law, rule, permit, or approval. Recipient shall grant Board upon reasonable advance notice to RECIPIENT access to the irrigation system as needed to . assure continued compliance with applicable laws and regulations, including, but not limited to, any monitoring or testing requirements. 3.3 A. Delivery of Reclaimed Water. BOARD agrees to use . its best efforts to make available. and deliver in the volume and at the times requested, an annual volume of ReclaimeEl< Water of at least 182.5 million gallons per year (MGY), with maximum volume anyone day up to but not to exceed 500,000 gallons per day (GPD), at a rate of 1,042 gallons per minute (GPM), for use on the Property and, at its cost, to connect the BOARD's Reclaimed Water transmiSSIon facilities to RECIPIENT's irrigation system at the point (s) of delivery agreed upon and as shown in Exhibit "cn. Both RECIPIENT and BOARD recognize that water supply and demand will vary depending on a number of factors, primarily climatic conditions. B. Storaqe. The RECIPIENT shall maintain, in compliance with all applicable laws and regulations, the nec~~sary storage facilities on their property at their sole expense. 3.4 Quality of Reclaimed Water. BOARD shall make available to RECIPIENT Reclaimed Water of a quality consistent with the requirements of "public access" treatment levels as set forth in Chapter 17-610, Florida Administrative Code, or its successor Code proviSions, or of a quality consistent with more stringent requirements that may be imposed by any governmental agency having jurisdiction and legal authority. 8-6-96 REUSE/HUHTERSRUN/DELIVERZ.AGR 5 In recognition of the need to supply Reclaimed Water, the BOARD shall also be required to comply with effluent limitations set forth in Exhibit "0". All Reclaimed Water made available by BOARD under this Agreement shall, at a minimum, have been treated by advanced treatment methods to remove harmful levels of bacteria, viruses, and other constituents or pollutants which could constitute a danger to human health, and in accordance with all applicable f~deral, state and local laws, rules T regulations, policies, ordinances, resolutions, orders and permits and the requirements of Exhibit "0". BOARD shall provide continuous monitoring of chlorine and turbidity, as well as other required ground and surface water quality sampling and monitoring of Reclaimed Water as required by local, state and federal regulations and by Exhibit" D" . BOARD agrees to divert away as expeditiously as possible, from the irrigation system, any Reclaimed Water which does not comply with the terms and conditions of this Agreement or which does not meet the applicable state, federal or local laws and regulations and to promptly and fully notify RECIPIENT of such action. Copies of all test results shall be available to RECIPIENT upon request. 3.5 Minimum Purchase of Reclaimed Water by RECIPIENT. Upon completion of construction of the wastewater facilities and continuing for so long as BOARD complies with the requirements set forth in this Agreement, RECIPIENT has an obligation to pay for at least 182.5 million gallons annually of Reclaimed Water for spray irrigation on the Property, subject to conditions as set forth in Section 3.3 of this Agreement. Notwi thstanding anything to the contrary., Recipient shall not be obligated to accept delivery of or pay . for Reclaimed Water which does not comply with the terms and conditions of this agreement. Such exception to RECIPIENT'S obligation to accept delivery of such Reclaimed Water by reason of the Board's failure :to meet the water quality standards required in this Agreement shall relieve RECIPIENT of its obligation to pay BOARD for the minimum annual volume set forth above at the rates determined pursuant to Paragraph 5 below only to the extent that the BOARD shall not have made available to RECIPIENT such annual minimum voluIqe..of Reclaimed Water meeting the requirements of this Agreement through the completion of the then current fiscal year. Recipient shall not transfer the water provided by Boa~d to any third party or off of the Recipient's property whicn is the subject of this agreement. 3.6 RECIPIENT shall be responsible for all maintenance of water and its irrigation system on RECIPIENTS side of the point(s) of delivery. 3.7 Nothing in this Agreement shall be construed to give RECIPIENT any right to the exclusive receipt of BOARD's Reclaimed Water supply. 8-G-Hi 1lEIISE/ HUlITEIlS IU.lNI DELI VER2 . JlGR 6 3.8 The BOARD agrees that it will not enter into contracts with other recipients of Reclaimed Water for more than its daily supply capacity as the same exists from time to time. SECTION 4. Term and Fees 4.1 Term. The Easement and this Agreement shall be in effect for~period of twenty .(20) years commencing on the date of execution of this Agreement. The term of the Easement and this Agreement shall be automatically extended for successive periods of ten (10) years each, upon the same terms and conditions as herein provided, unless either party hereto notifies the other by certified mail at least three years prior' to the expiration of the initial term of this Agreement or any renewal thereof, that this Agreement shall not be so extended.. 4.2 Payment of Fees. In return for. and in consideration of BOARD's construction of facilities and delivery of Reclaimed Water, RECIPIENT agrees to pay BOARD a one-time connection fee of $4,300.00 and a volume charge of 20e for each 1,000 gallons of Reclaimed Water used, (the "Volume Charge") but on an annual basis not less than the above rate times the minimum quantity RECIPIENT has agreed to purchase under Section 3.5 together with a storage charge equal to Be, (the "Storage Charge") for each 1,000 gallons of Reclaimed Water the Volume Charge for which is paid for by RECIPIENT, as, provided above. Such storage charge shall remain constant ancC shall not be adjusted, during the term of this Agreement or any extension. Payment of the connection fee shall be in one lump sum no later than the commemcement of construction of the. modification to the BOARD's' wastewater. facilities for the treatment and production of Reclaimed Water. The Volume Charge shall remain constant until the expiration of the third (3rd) fiscal year from the Commencement of pumping (provided that if less than six (6) months expires between the time BOARD commences or makes available delivery of Reclaimed Water and the end of the first fiscal year, such first year shall.nQt count as the first fiscal year), after which the price will be redetermined as provided in Section 5. The BOARD shall render billings to RECIPIENT for both the.volume charge and storage charge on a monthly basis for such applicable charges on the basis of the greater of the actual Reclaimed Water delivered or the volume charge and storage charge for 1/12th of the minimum guaranteed annual volume agreed to be accepted by RECIPIENT pursuant to Section 3.5 above; provided that RECIPIENT shall pay no more, on a fiscal year basis, than (i) such minimum annual guaranteed volume charge or (ii)charges for Reclaimed Water actually accepted during the fiscal year, whichever is more. 8-6-96 REUSE/HtnITERSRUN/DELlVER2.AGR 7 4.3 In the event the BOARD shall not be able to deliver Reclaimed Water in the minimum volume agreed to in Section 3.5 of this Agreement, as a result of its inability to do so and through no action or inaction on the part of the RECIPIENT, the RECIPIENT shall be entitled to a credit for such shortage in the minimum agreed to volume (by a proportionate reduction) . SECTION 5. Future Adjustment of Price of Reclaimed Water. The Volume Charge shall be adjusted after the first three (3) fiscal years as aforesaid upward or downward based on the year-to-year change in the actual operating costs of producing, metering and delivering Reclaimed Water from effluent and transmitting it to the point of delivery for the RECIPIENT as it relates to the preceding year's Volume Charge, however, such Volume Charge shall never be less than 20c per thousand gallons nor shall an increase be applied if the actual operating costs shall be less than said 20c per thousand gallons. The first such adjustment shall occur effective the first day of the fourth fiscal year following the initial delivery of Reclaimed Water to RECIPIENT and shall reflect the relative increase or decrease in actual operating costs incurred by the BOARD during the second fiscal year of delivery of Reclaimed Water to RECIPIENT as compared to the third fiscal year and for each subsequent year thereafter as compared to the previous year. The actual operating cost and change therein shall be the basis for determining the index for making the adjustments in the Volume Charge. Actual operating costs ("Actual Operating Costs") shall be determined in conformity with generally accepted accounting principles consistently applied, except the depreciation of plant and equipment and any other provision for capital recovery, including interest on long term debt, shall not be included as operating costs, as such costs are properly allocable to wastewater customers. Any increase or decrease in the Volume Charge shall be determined as soon as reasonably practicable and shall be effective retroactive to the scheduled date of adjustment and a sum due to the BOARD as a result of the retroactive effect of such adjustment or the cre9it due the RECIPIENT, if applicable, shall be reflected in the next billings regularly submitted by BOARD to RECIPIENT as provided in Subparagraph 5.4. ...... '1' 5.1 BOARD personnel shall establish, or cause to be established, and maintain an accounting system in which such current operating costs are recorded monthly in separate accounts from sewage processing accounts. Costs shall be recognized on a first-in first-out basis. The BOARD personnel shall prepare and preserve any studies relating to the allocation of operating costs on other than an actually incurred basis. By way of example, the parties agree that all operating and maintenance costs of labor, chemicals-and power, permits, regulatory requirements, legal, engineering, administration, testing, meter calibration and contract 8-6-96 REUSE/HUNTEPSRUN/DELlVER2_AGR 8 services may be allocated based on appropriate data or studies. Such current operating costs shall be recorded on a consistent ba~is from month to month and year to year, and the total for each fiscal year shall be used to calculate a cost per thousand gallons of Reclaimed Water delivered beginning with the second fiscal year after the plant starts to deliver Reclaimed Water to RECIPIENT. 5.2 By way of example, if delivery begins on October 6, 1996, the third fiscal year thereafter would be October 1, 1998 to September 30, 1999. Assume that the actual cost of producing Reclaimed Water for the fiscal year October 1, 1997 through September 30, 1998 was 21e. Further, assume that the Actual Operating Cost of producing and delivering Reclaimed Water. to RECIPIENT during the second fiscal year to the end of the third fiscal year (October I, 1997, through September 30, 1999) increased from 21e per thousand gallons to 23e per thousand gallons. The index for increase would be calculated by dividing the base cost of 21e per thousand gallons into the 2c increase in cost, resulting in an increase of 9.52% to the previous years' Volume Charge of 20c per thousand gallons for the fourth fiscal year, equal to 21.90c per thousand gallons (2 + 21e = .0952, then 20e x 1.0952 = 21.90C). 5.3 As soon as reasonably practical, after each fiscal year for which the cont:J:"act price is subject to adjustment , the BOARD shall prepare a statement showing in reasonable . detail the actual operating costs to produce Reclaimed Water from efflu~nt for the latest two fiscal years. For each such~ year, the statement shall also show (1) the number of gallons in thousands of Reclaimed Water delivered to Reclaimed Water users, (2) the cost per thousand gallons of Reclaimed Water calculated by dividing such operating costs by such gallons, ( 3 ) the calculation of the ratio of change in cost per thousand gallons from the earlier year to the later year, and (4) the calculation of the adjusted price for the later year. This statement shall be deemed to be the responsibility of the BOARD, and the BOARD's Executive Director shall attest in writing to the propriety of the costs and calculations shown thereon. . '. 5.4 By January 15 of each year, the BOARD'S Executive Dire~tor shall submit to ~CIPIENT the supplemental statement set ~torth in the preceding paragraph, together with the attestation thereto by the BOARD. At the same time, the BOARDS Executive Director shall submit to RECIPIENT a bill or credit showing (l)the amount paid by the RECIPIENT for . Reclaimed Water delivered in the current fiscal year, (2)the amount payable for Reclaimed Water delivered in the current fiscal year based on the adjusted price for the year as set forth above, and (3)the difference. Any such difference shall be either paid promptly by the RECIPIENT, or shown as a credit in the next billing to the RECIPIENT. 8-6-96 REUSE/HlnfTERSRUN/OELIVERZ:AGR 9 5.5 For billing purposes only prior to the determination of actual costs for adjusting the Volume Charge, during each year subject to price adjustment, the BOARD may use a tentative price per thousand gallons based on using budgeted costs for the current year in the price adjustment calculation set forth above. 5.6 . RECIPIENT, at its own expense, has the option of examining the financial statements, general books and related records, and production records of the BOARD. 5.7 Notwithstanding the above provisions, the price paid by the RECIPIENT for Reclaimed Water shall be adjusted downward in the event the BOARD offers Reclaimed Water to any other non-governmental customer(s) upon substantially similar terms and conditions for the same use of the Reclaimed Water at a lower charge than RECIPIENT is or will be paying under this Section 5. Such downward adjustment shall be made to guarantee RECIPIENT that no other user of Reclaimed Water for similar purposes shall receive a more favorable charge than will also be given to RECIPIENT under similar circumstances. 5.8 To the extent that the BOARD receives governmental or environmental noncapital improvement subsidies which are provided to the BOARD for encouraging wastewater reuse and which are intended to be applied pursuant to the terms of such grant or subsidy to the operational costs of the Reclaimed Water facility, as opposed to capital improvements or expansion of such Reclaimed Water facility, the BOARD will apply such funds, to the extent allowed, to its Reclaim~d Water facility operating costs. SECTION 6. Inspection. BOARD shall have the right to enter RECIPIENT's property, upon proper identification and at any reasonable time, in order to inspect the irrigation system as may be necessary or desirable for the operation, safety, protection, or preservation thereof, to determine compliance with any law, order or regulation of any governmental authority having jurisdiction, and for sampling at any monitor.:ing wells located on the property. RECIPIENT shall have the right to enter the BOARD's plant and properties and the right of access to its wastewater facilities and records, at anYfreasonable time, for the purpose of determining whether the BOARD is in compliance with this Agreement. SECTION 7. Assignments. This Agreement can be assigned by RECIPIENT only with the prior written approval of BOARD, but such approval shall not be unreasonably withheld, provided the assignee shall assume this Agreement and shall demonstrate to BOARD its financial ability to comply with the provisions hereo f . SECTION B. Notices; Proper Form. Any notice required or allowed to be delivered hereunder shall be in writing and 8-6-96 REUSE/HmlTERSRUN/DELIVER2.AGR 10 shall be deemed to be delivered when (1) hand delivered to the official hereinafter; designated, (2) upon receipt of such notice when deposi tea in the United States mail, postage prepaid, certified mail, return receipt r~quested, add~essed to a party at the address set forth Opposlte the party name below or at such other address as the party shall have specified by written ~otice to the other party delivered in accordance herewith: BOARD SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD Executive Director 1801 North Congress Avenue Delray Beach, FL 33445 RECIPIENT: HUNTERS RUN GOLF & RACQUET CLUB C/O Club Manager 3500 Clubhouse Lane Boynton Beach, FL 33436 COpy TO: Boynton Beach City Manager P.O. Box 310 Boynton Beach, FL 33425-0310 COpy TO: Del~ay Beach City Manager 100 N.W. 1st Avenue Delray Beach, FL 33444 COpy TO: Robert W. Federspiel, Esq. 501 East Atlantic Avenue Delray Beach, FL 33483 r I SECTION 9. Notices; Default. Each of the parties hereto shall give the other party ~itten notice of any defaults hereunder and shall allow the de~aulting party 30 days from the date of receipt to cure such defaults, except failure to deliver water on demand. ; , r . ~ I + ' I SECTION 10. Default by Either Party. If any party hereto fails to perform or comply: wi th any of the conditions of this Agreement, and if the! nonperformance shall continue for a period of thirty (30) d~ys after the written notice thereof to the non~performing paJtty, or if the performance cannot be reasonably completed within the 30-day period, or if the non- performing party does i;lOt in good faith commence performance within the 30-day period and does not diligently proceed to complete performance, Ithe non-performing party shall be in default or breach of t~is Agreement. 8-6-96 REUSE/HUNTERSRrnIIDELlVER2.AGR 11 SECTION 11. Indemnification. In the event RECIPIENT shall fail to comply with any reuse water rule or regulation of any Federal, State or County or local agencies, except BOARD, or violate any permit granted with regard to the use of the irrigation system on the RECIPIENT's property, then RECIPIENT shall indemnify the BOARD, its officers, governing board, employees and agents~against all claims, demands, causes of actions, suits, judgments, fines, penalties, or losses, including all costs suffered or incurred by the BOARD by reason of such failure. In the event the BOARD shall fail to comply with any rule, regulation, order of any Federal, State or County or local agency, or fail to deliver water meeting the quality standards provided by this Agreement, then the BOARD shall, to the extent allowed by law, indemnify the RECIPIENT, its officers, board of directors, employees and agents against all claims, demands, causes of actions, suits, judgments, penalties, fines, or losses suffered or incurred by the RECIPIENT as reason of such failure. SECTION 12. Remedies of Default. If either party hereto shall be in default hereunder as set forth in Section 10, then the other party shall have the following remedy: bring suit for the breach which has occurred without affecting the obligations of the party to perform the balance of the Agreement. The parties shall have the right not only to injunctive relief, but also to recover any damages which a party may incur as a result of the breach of this Agreement by the other party. The parties further agree that any litigation shall be brought in Palm Beach County, Florida, only, and the parties agree that the proper venue for any such action would only be in Palm Beach County, Florida. The parties further waive any right to Jury trial they may have in any action among them involving this Agreement or the alleged breach thereof. SECTION 13. Disclaimers of Third Party Beneficiaries. This Agreement is sole~y for the benefit of the formal parties hereto and no right or cause of action shall accrue upon or by reason hereof or to ox from or for the benefit of any third par~y~ot a formal party hereto. SECTION 14. Severability. If any part of this Agreement is fo~nd invalid or unenforceable by any court, such invalidity or'unenforceability shall not affect the other parts of this Agreement. SECTION 15. Applicable Law. This Agreement and ~he provisions contained herein shall be construed, controlled and interpreted according to the laws of the State of Florida. SECTION 16. Entire Agreement. This agreement contains the entire Agreemen~ between the parties hereto with respect to this transaction and supersedes all prior negotiations and all prior written or oral understandings. 8-6-96 kEUSE/HUHTERSRUN/DELlVERZ.AGR 12 SECTION 17. Amendments. This Agreement may only be amended, supplemented or discharged by an instrument in writing signed by all parties hereto. SECTION 18. Recordation. This Agreement or a mutually agreeable memorandum thereof will be recorded in the public records of Palm Beach County, Florida. SECTION 19. Extent of Agreement. Each party shall advise the other party, in writing, as to the status of its construction document preparation and construction of associated improvements on a monthly basis to ensure that both parties' activities are progressing with reasonable diligence. SECTION 20. Completion Date. The Board agrees to use its best efforts have its Reclaimed Water facilities completed and available for use for RECIPIENT and RECIPIENT agrees to use its best efforts have its Irrigation System complete and to accept delivery of Reclaimed Water from the BOARD on or before November 1, 1997, subject to matters' beyond the reasonable control of either party. Notwithstand~ng any provision of this Agreement to the contrary, the RECIPIENT shall have the absolute obligation to commence payments for the reclaimed water upon the completion of construction as provided for in Section 3.5 above. SOUTH CENTRAL REGIONAL WASTEWATER TREAT~NT AND DISPOSAL BOARD By: ~ .f- /7. / i ;J./II L-.< Chairman -4' ~ ,y' !/ i-. , . _ ,,/ L<~../~{-.;.i>~ / APPROVED AS A" / .;'~ ORM: HUNil\S RUN GOLF & RACQU~ CLUB B~~_ ~~4( r J.. ""', / -~ 8-6-96 REuSE/HUNTERSRUN/DELlVER2.AGR 13 APPROVED BY: ~ - / , . / / ~~-,. /" ,. ~~/ /~7 /" /; /~ / Cit~~6f D..e~ray Beach, Mayor APPROVED BY: // /,~,,/ ./ ./ .' / 0 ~..-------~-- ./ j, . . -,~. "'. i ,. ...jF '.'..,/' ;,-~ '( c.<--7 /'. _ /' j/ :..----r, I ./ '" /I ~ CiFi of B~inton~eaCh, Mayor ..j. ,F/./ /! ,:~/ ~ , "" /"- -:'/"' (.~~>L:'-~'~=~'-._~ L- 8..6-96 REUSKlIMfT&RSRIJIf/ DELYVBRZ .AGR 14 EXHIBIT "A" HUNTERS RUN GOLF & RACQUET CLUB located in Section 5, Township 46 South, Range 43 East, as recorded in Plat Book 36 of the Public Records of Palm Beach County, Florida. " . ~ ..;. ~ ' 8-6-96 IlEUSEltnlNTERSRUN/DELIVEItZ _AGR 15 EXllIDITn OPERA TINe RESTRl CTS Reei pi ent shaH m.; ntain com pliancc wi th the f 0 Howing operating r cstri cti ODS for p rotecti n g human health, welfare and safety, and the environment y;\. L The pub I ie shal I be noW, ed of the IlSe of reclaimed water by pomn g advisory si gus, notes on score cards or other methods in accordance with Chapter 17-6J 0.468 F AC 1. Direct connections between the red.;med waler system and irrigation Water system shaJl not be a/Jowe.d without the use of appropriate backfJow prevention devices. 3. No cross-connection to potable \\,Her systems shall be aI/owed. 4. All recl.;med water valves and outlelS shall be appropriately color coded and labeled in accordance with Chapter i7-6J0.470 FAC to warn public and employees that the Water is not intehdecl for' drinking. . 5.. Setback distances to potable water supply weHs and the use oflow trajectory nozzles shaJJ be in accordance with Chapter 17-6J0.471 F AC 6. The USe ofrecJ.;med water shaJI be consistent with all applicable federal, state, amI 10caJ Jaws and regulations. .~ ^.'\)S7~JT.B Exhibit B January 1995 P.EC I of r c 0 ~ ~- o u OJ 1:) 0 - c .s c 0 c o 0 .:: 0 0 QU 0 n: U .... ~ ] "" . I "0 II . ~ " ." ~ <> .c; ... 0 o. 0 .... "" i I i I , ! e. I ~ ~ .., ~ .., .3 .~ C>: to ~ c I ~ , ~ I ~ c .K:J L _~ QJ ~ j C..o~O d ::J :::> 0 cv -j I uo:U~ ~ ~l/)^\:)o ~ V:.o -L L. IV 0 ~i:~cE,"- J - J- WX c :::> -6 0 ::30_ .IO gc ~~ 0- ~~ '"" <<> ): "0 "";j u '8..'3i 4IJl:c c:..9 . ~~~ m8! ?E~ ~ D~ >-. 0 ':::'..0 "U C::>--;: :>-00 oU k u . i' '~ r I ~ .~ '! .! ;0 : " 'ti :~ Ill:: I.... :a :7 u 'oJ . ! .. . . .. Q . & i II o~ Or ~, .5 :; " C 0: C <.> In 'JJ LoIII'I1 EXJHI31T D EncJosu rc 'J Board shall monitor the redaimcd water for the following parameters and llgrcx:s to divcrt redaimcd water which exceeds the specified limits. Parameter Sampling Frequency LimitCl} Turbidity Continuous lNllJ Chlorine Residual COni inuous (minimum) Ch"'oride Continuous 350 CBODG'1 Daily 20 TSSOl Dailv 5 pH Hourly 6 to 7.5 unil5r~1 7.8 UOil5I61 Aluminum Annual 1.0 Arsenic Annual 0.] 0 Ber~y"ium Annual 0.]0 Boron Annual 0.50 Cadmium Annual O.OJ Chromium Annual 0.1 Coball Annual 0.05 Copper Annual 0_2 Fluoride Annual LO Iron Annual 3_0 Lead Annual 5.0 Lithium Annual :2.5 Manganese Annual 0.2 MoJybdenium Annual 0.005 Nickel Annual 0.02 Selenium Annual 0.02 Vanadium Annual OJo Zinc Annual 2,0 BicarbQhatc (as CaCO-) Annual 120 ,,. ~. Calcium Annual (4) MaQTItsium Annual (4) ~c. Sodium Annual (4) Sodium Adsorption Ratio Annual 6 units (J) 0) OJ (.(j (5) (6) Maximum concentration c:xp~ssed inmg/L unless noted. Carbonaceous Biochemical O>.:-ygcn Demand (eBOD). Total Suspended Solids (TSS). }nfonnation used in calculation of Sodium Adsorption Ratio (SAR). Dailv a\"eTal!e 2-Hour dunition "":'.7~74\D:HlBl1.D Exhibit D January J 995 1'. r~ , or , ASSIGNMENT AGREEMENT go5-o87 *~ THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of _,2005, by and between thSOUTH CENTRAL REGIONAL W ASTEW A TER TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter 163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON." WITNESSETH; WHEREAS, the BOARD has heretofore entered into that certain Agreement with Pine Tree Golf Club, concerning delivery and acceptance of reclaimed water dated the 17 th day of January, 1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water Agreement;" and WHEREAS, the BOARD is modifying its reclaimed water operations as a result of an amendment to the Interlocal Agreement creating the BOARD,'whereby the BOARD will provide wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach; and WHEREAS, in order to implement such modification and the mode of operation as above described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such assignment, shall assume all of the rights, duties and obligations of the BOARD under said Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration from one party to the other, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows: I . The BOARD hereby assigns all rights, benefits and obligations Under the RecIaimed Water Agreement to BOYNTON, effective the 1st day of October, 2005. 2. BOYNTON hereby agrees to accept and assume all rights, benefits and obligations created undeTthe said Reclaimed Water Agreement pursuant to this assignment. .:.~ IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day and year first above written. SOUTH CENTRAL REGIONAL WASTEWATER TRE TMENT AND DISP AL BOARD , E-< Muir C. APPROVED AS TO FORM BO)~-1 A TTESTED BY: Secretary APPROVED AS TO FORM City Attorney ;.. CITY OF BOYNTON BEACH By: Mayor AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD AND PINE TREE GOLF CLUB CONCERNING DELIVERY AND ACCEPTANCE OF RECLAIMED WATER THIS AGREEMENT is made and entered into On this \ I day of eX..>\").' ~, by and between South Central Regional Wastewater Treat]nJ~~ and Disposal Board, a municipal corporation created pursuant to the laws of the State of Florida (hereinaf~er BOARD), and Pine Tree Golf Club (hereinafter RECIPIENT). Accordingly, for and in consideration contained herein, mutual understandings Contained herein, and other consideration, sufficiency of which is hereby acknowledged the parties covenant and agree as follows: of the recitals and agreements the receipt and by the parties, SECTION 1. Recitals. The below recitals are true and correct and form a material part of this Agreement. 1.1 The parties hereto represent to one another that each has the full POwer and authority to enter into this Agreement and to carry out their respective obligations thereunder. The BOARD is composed of the Cities of Boynton Beach and Delray Beach (the "Cities" ), pursuant to an Interlocal Agreement entered into pursuant to Chapter 163, Florida Statutes. 1.2 The parties recognize that reuse of Reclaimed Water isc in the public interest; as it recaptures an otherwise wasted and unused water resource. The BOARD owns and operat.es wastewater facilities which it proposes to upgrade to produce Reclaimed Water SUitable for irrigation of areas, such as golf courses, parks, school grounds and. cemeteries, and RECIPIENT is willing to accept such Reclaimed Water for irrigation purposes in the public interest. 1. 3 In a normal year, RECIPIENTS will irrigate approximately 240 days and most of RECIPIENT'S daily requirements will be needed during approximately 12 hours commencing about sundown. BOARD agrees to use its best efforts ,to SUpply Reclaimed Water on demand to RECIPIENT up to the 'Volume and at the charge set forth in this Agreement. RECIPIENT has valuable golf courses that require access to such;iReclaimed Water and has expended Substantial money and effort and has foregone other avenues to meet its irrigation requirements in reliance on this Agreement. The BOARD is not required to Upgrade its wastewater system to produce Reclaimed Water but is doing so in reliance upon the RECIPIENT entering into this Agreement. 7-23-96 REUSE\DELlVER2.AGR 1 1.4 The RECIPIEtlT owns and controls land which is described in Exhibit "A" (the "Property"), attached and made a part 'hereof by reference. 1.5 RECIPIENT agrees to: (a) irrigate the Property using Reclaimed Waterj (b) maintain the storage facility, if applicable, ponds and lakes, if applicable, pumps and irrigation system to be located on the Property from the point of deliveryj and (c) upgrade its irrigation system when reasonable and economical to utilize the volume of Reclaimed Water accepted from the BOARD and as required to meet any federal, state, or local requirements, (d) maintain compliance with the operating restrictions for protecting human health and the environment attached thereto as Exhibit "B". 1.6 Recipient shall accept the Reclaimed Water delivered by the BOARD and use it for irrigation of the Property. The BOARD shall be deemed to be in possession and control of the Reclaimed Water until it shall have been delivered to the RECIPIENT at the Point of Delivery. After such delivery, the RECIPIENT shall be deemed to be in possession and control thereof. 1.7 The RECIPIENT agrees to maintain all Federal, State and governmental permits issued to it and necessary to allow it to receive and utilize the Reclaimed Water pursuant to the terms of this Agreement. 1.8 The right of the RECIPIENT to sell, transfer or encumber the Property in areas irrigated with the Reclaimed Water shall not be restricted by this Agreement. This Agreement shall run with the land so long as the use of a major portion of the Property shall continue to be for golf course and related purposes. Any subsequent party in interest to such golf course or courses shall be obligated to receive and pay for Reclaimed Water under the same terms and conditions of this Agreement, unless modified by mutual consent of the BOARD and the buyer or transferee. 1.9 METER. The design and construction of the metering facLlity shall be the responsibility of the BOARD and must be mutualay approved in advance in writing by BOARD and RECIPIENT. The meter will be utilized to measure the amount of Reglaimed Water delivered by the BOARD to RECIPIENT and the BOARD shall operate, maintain, cause to be calibrated, and repair s aid meter.. 1.10 CONSTRUCTION. Upon completion of the engineering design of the metering facility, and the acceptance of same by both parties, the metering facility will be constructed by the BOARD and placed into service. 7-23-96 REUSE\DELIVERZ.AGR 2 1.11 COSTS AND OPERATION. The BOARD shall bear the cost of constructing, owning and maintaining the Reclaimed Water meter and related appurtenances and the lines interconnecting BOARD's system into the metering facility, including all valves and appurtenances up to and including the discharge flanges of the valves immediately downstream of the meter. The parties agree that the RECIPIENT shall have reasonable access to the metering facility, to all other Reclaimed Water meters, check valves, and any other appurtenances thereto, to verify flows, meter readings, meter calibrations, efficiency of the check valves, and any other performance data necessary to the operations of the Interconnection facility Upon reasonable advance notice to the Board. The metering device shall be tested and calibrated, at BOARD's expense, at least once per year and repaired if required. Any errors in meter reading and any discrepancy in meter results from a true and correct measure of Reclaimed Water flow to RECIPIENT shall ~e adjusted properly and retroactively to reflect the flow to RECIPIENT. Any incorrect metering device shall be repaired forthwith by the BOARD. 1.12 This agreement has been duly authorized by all named parties. Pursuant to Section 3 (C) of the Interlocal Agreement dated December 26, 1974, between the City of Boynton Beach and the City of Delray Beach, this Agreement and all provisions thereof have been contractually approved by a majority vote of each City Council as the act of each City, or, if such approval has not already been obtained, such approval will be obtained and certified to RECIPIENT before this Agreement shall become effective. SECTION 2. Definitions. The parties agree that in construing this Agreement, the following words, phrases and terms shall have the following meanings, unless the context requires otherwise: 2.1 "Agreement" means this Agreement between BOARD and RECIPIENT. 2.2 "FDEP" means the Florida Department of Environmental Protection, and its successors. 2.3 "Fiscal Year" means October 1 to September 30 of the f?llowing year. 2.4 "GPO" means gallons per day. 2.5 "Irrigation system" means those pump stations, lines, pipes, sprinkler heads, ponds and lakes, storage facilities, if applicable, and pertinent equipment that are located on RECIPIENT's property and used to store, spray and irrigate with Reclaimed Water that has been treated in accordance with 7-23-96 REUSE\OeLlVERl.AGR 3 all applicable governmental regulations and in accordance with the terms and provisions of this Agreement. 2.6 "MGD" means million gallons per day. 2.7 "Peint of delivery" means the point at which divides the BOARD's wastewater facilities RECIPIENT's irrigation system, or as otherwise engineering drawings approved by both parties. the meter from the noted on 2.8 "Reclaimed Water" means wastewater that has been treated in accordance with Section 3.4 of this Agreement. 2.9 "Reclaimed Water Disposal Facilities" means those facilities necessary for the storage, if applicable,. transportation and disposal of wastewater previously treated in accordance with applicable local, state and federal standards and limitation at the plant to the standard of Reclaimed Water. These facilities include, but are not limited to, any Reclaimed Water transmission facilities, irrigation systems and storage facilities, if applicable. 2.10 "Reclaimed Water Transmission Facilities" means the BOARD's facilities used to transmit Reclaimed Water. 2.11 "Storage Facilities" means those facilities which may be designed, permitted and constructed on the Property, if .applicable, or upon the BOARD's property, if applicable, and which are necessary to store and hold Reclaimed Water in a manner that complies with regulatory requirements. 2.12 "Wastewater" means the product received by the wastewater treatment facility for treatment. 2.13 "Wastewater Facilities" means c the BOARD's plant located at 1801 North Congress Avenue, Delray Beach, Florida, and Reclaimed Water transmission facilities, including all interceptors, lines, pipes, meters, couplings, pumps, force mains, and appurtenant equipment necessary to treat and transmit the Reclaimed Water. SECTION 3. Grant of License and Easement. RECIPIENT hereby grants to BOARD an easement over the Property, including a 15 fQot utility easement to be mutually agreed upon and located irr the approximate location depicted on Exhibit "C" attached hereto, to allow construction, operation, maintenance and repair of the BOARD's Reclaimed Water transmission main to the point of delivery, and' the right to transmit, deliver and dispose of Reclaimed Water through the irrigation system and storage facility, if applicable, on the Property in accordance with and subject to the following conditions: 7-Z3-96 REUSE\DELlVERZ.AGR 4 3.1 Desian and installation of Certain Facilities. BOARD agrees to design, permit, install and operate improvements and additions at its existing wastewater treatment plant, and the BOARD's Reclaimed Water transmission facilities, and to Permit effluent disposal facilities in order to provide Reclaimed Water at the point of delivery. RECIPIENT agrees to design, permit, install and operate, at its sole expense, any storage facili ty, if applicable, and the irrigation system on the Property up to the point of delivery. 3.2 Permits and Approval for the Irriqation System. Recipient shall be responsible, in cooperation with Board, for obtaining and maintaining necessary governmental permits and approvals in order to install and operate the irrigation system: provided, however, that Board shall be responsible for,obtaining and maintaining all. permits for Reclaimed Water disposal facilities. For all wastewater facilities located on its side of the point of delivery, Board shall be solely responsible for obtaining, compiling, providi~g and complying with all monitoring, sampling, testing, and reporting requirements for the Reclaimed Water, which may be imposed by government law, rule, permit, or approval. Recipient shall grant Board upon reasonable advance notice to RECIPIENT access to the irrigation system as needed to assure continued compliance with applicable laws and regulations, including, but not limited to, any monitoring or testing requirements. 3.3 . A. Delivery of Reclaimed Water. BOARD agrees to use its best efforts to.make available and deliver in the volume and at the times requested, an annual volume of Reclaimed Water of at least 86 million gallons (MGY), with maximum volume.anyone day up to but not to exceed 800,000 gallons per day (GPD), at a rate of 1,750 gallons per minute (GPM), for use on the Property and, at its cost, to connect the BOARD's Reclaimed Water transmission facilities to RECIPIENT's irrigation system at the point(s) of delivery agreed upon and as shown in Exhibit "C". Both RECIPIENT and BOARD recognize that wate~ supply and demand will vary depending on a number of factors, primarily climatic conditions. B. Storacie. The RECIPIENT shall maintain, in compliance with all applicable laws and regulations, the necessary storage facilities on their property at their sole eXf~nse. 3.4 Quality of Reclaimed Water. BOARD shall make available to RECIPIENT Reclaimed Water of a quality consistent with the requirements of "public access" treatment levels as set forth in Chapter 17-610, Florida Administrative Code, or its SUccessor Code provisions, or of a quality consistent with more stringent requirements that may be imposed by any governmental agency having jurisdiction and legal authority. In recognition of the need to supply Reclaimed Water, the 7-23-96 REUSE\DELlVER2 _AGR 5 BOARD shall also be required to comply with effluent limitations set forth in Exhibit liD". All Reclaimed Water made available by BOARD under this Agreement shall, at a minimum, have been treated by advanced treatment methods to remove harmful levels of bacteria, viruses, and other constituents or pollutants which could constitute a danger to human health, and in accordance with all applicable federal, state and local laws, rules, regulations, policies, ordinances, resolutions, orders and permits and the requirements of Exhibit "D". BOARD shall provide continuous monitoring of chlorine and turbidity, as well as other required ground and surface water quality sampling and monitoring of Reclaimed Water as required by local, state and federal regulations and by Exhibit "D". BOARD agrees to divert away as expeditiously as possible, from the irrigation system, any Reclaimed Water which does not comply with the terms and conditions of this Agreement or which does not meet the applicable state, federal or local laws and regulations and to promptly and fully notify RECIPIENT of such action. Copies of all test results shall be.available to RECIPIENT upon request. 3.5 Minimum Purchase of Reclaimed Water by RECIPIENT. Upon completion of the construction of the wastewater facilities and continuing for so long as BOARD complies with the requirements set forth in this Agreement, RECIPIENT has an obligation to pay for at least 86 million gallons annually of Reclaimed Water for spray irrigation on the Property, subject to conditions as set forth in. Section 3.3 of this Agreement. Notwithstanding anything to the contrary, Recipient shall not . be obligated to accept delivery of or pay for Reclaimed Water which does not comply with the terms and conditions of this agreement. Such exception to RECIPIENT'S obligation to accept delivery of such Reclaimed.Water by reason of the Board's failure to meet the water quality standards required in this Agreement shall relieve RECIPIENT of its obligation to pay BOARD for the minimum annual volume set forth above at the rates determined pursuant to Paragraph 5 below only to the extent that the BOARD shall not have made available to RECIPIENT such annu_al minimum volume of Reclaimed Water mee,ting the requirements of this Agreement through the completion of the then current fiscal year. Recipient shall not transfer the water provided by Board to any third party or o~~ of the Recipient's property which is the subject of this agreement. 3.6 RECIPIENT shall be responsible for all maintenance of water and its irrigation system On RECIPIENTS side of the point(s) of delivery. 7-23-96 REUSE\DELlVER2.AGR 6 3.7 Nothing in this Agreement shall be construed to give RECIPIENT any right to the exclusive receipt of BOARD's Reclaimed Water supply. 3.8 The BOARD agrees that it will not enter into contracts with other recipients of Reclaimed Water for more than its daily Supply capacity as the same exists from time to time. SECTION 4. Term and Fees 4.1 Term. The Easement and this Agreement shall be in effect for a period of twenty (20) years commencing on the date of execution of this Agreement. The term of the Easement and this Agreement shall be automatically extended for successive periods of ten (10) years each, upon the same terms and conditions as herein provided, unless either party hereto notifies the other by certified mail at least three years prior to the expiration of the initial term of this Agreement or any renewal thereof, that this Agr~ement shall not be so extended. 4.2 PaYment of Fees. In return for and in consideration of BOARD's construction of facilities and delivery of Reclaimed Water I RECIPIENT agrees to pay BOARD a one-time connection fee of $5,100.0Q and a volume charge of 20c for each 1,000 gallons of Reclaimed Water used I (the "Volume Charge") but on an annual basis not less than the above rate times the minimum quantity RECIPIENT has agreed to purchase under Section 3.5 together with a storage charge equal to Be';- (the "Storage Charge") for each 1,000 gallons of Reclaimed Water the Volume Charge for which is paid for by RECIPIENT, as provided above. Su~h storage charge shall remain constant and shall not be adjusted, during the term of this Agreement or any extension. Payment of the connection fee shall be in one lump sum no later than the commencement of construction of the modification to the BOARD's wastelVater facilities for the treatment and production of Reclaimed Water. The Volume Charge shall remain constant until the expiration of the third (3) fiscal year from the commencement of pumping (provided that if less than six (6) months expires between the time ~ARDcommences or makes available delivery of Reclaimed Water and the end of. the first fiscal year, such first year shall not count as the first fiscal year), after which the pricE!:! will be redetennined as provided in Section 5. The BOARD shall render billings to RECIPIENT for 'both the volume charge and storage charge on a monthly basis for such applicable charges on the basis of the greater of the actual Reclaimed Water delivered or the volume charge and Storage charge for 1/12th of the minimum guaranteed annual volume agreed to be acCepted by RECIPIENT pursuant to Section 3.5 above; provided that RECIPIENT shall pay no more, on a fiscal year basis, than (i) such minimum annual guaranteed volume 7-23-96 REuSE\DELIVERZ.AGR 7 charge or (ii)charges for Reclaimed Water actually accepted during the fiscal year, whichever is more. 4.3 In the event the BOARD shall not be able to deliver Reclaimed Water in the minimum volume agreed to in Section 3.5 of this Agreement, as a result of its inability to do so and through no action or inaction on the part of the RECIPIENT, the RECIPIENT shall be entitled to a credit for such shortage in the minimum agreed to volume (by a proportionate reduction) . SECTION 5. Future Adjustment of Price of Reclaimed Water. The Volume Charge shall be adjusted after the first three (3) fiscal years as aforesaid upward or downward based on one-half (~)of the year-to-year change in the actual operating costs of producing, metering and delivering Reclaimed Water from effluent and transmitting it to the point of delivery for the RECIPIENT as it relates to the preceding year's Volume Charge, however, such Volume Charge shall never be less than 20c per thousand gallons nor shall an increase be applied if the actual operating. costs shall be less than said 20c per thousand gallons. The first such adjustment shall occur effective the first day of the fourth fiscal year following the initial delivery of Reclaimed Water to RECIPIENT and shall reflect one-half (1) the relative increase or decrease in actual operating costs incurred by the BOARD during the second fiscal year of delivery of Reclaimed Water to RECIPIENT as compared to the third fiscal year and for each subsequent year thereafter as compared to the previous year. The actugJ operating cost and change therein shall be the basis for determining the index for making the adjustments in the Volume Charge. Actual operating costs ("Actual Operating Costs") shall be determined in conformity with generally accepted accounting principles consistently applied, except the depreciation of plant and equipment and any other provision for capital recovery, including interest on long term debt, shall not be included as operating costs, as such costs are properly allocable to wastewater customers. Any increase or decrease in the Volum~ Charge shall be determined as soon as reasonably practicable and shall be effective retroactive to the '~cheduled date of adjustment and a sum due to the BOARD as a result of the retroactive effect of such adjustment or th~ credit due the RECIPIENT, if applicable, shall be reflected in the next billings regularly submitted by BOARD to RECIPIENT as provided in Subparagraph 5.4. 5 . 1 BOARD personnel shall establish, or cause to be established, and maintain an accbunting system in which such current operating costs are recorded monthly in separate accounts from sewage processing accounts. Costs shall be recognized on a first-in first-out basis. The BOARD personnel shall prepare and preserve any studies relating to the allocation of operating costs on other than an actually incurred basis. By way of example, the parties agree that all 7-23-96 REUSE\DELlVERZ.AGR 8 operating and maL -enance costs of labor, che ~als and power, permits, regulatory requirements, legal, engineering, administration, testing, meter calibration and contract services may be allocated based on appropriate data or studies. Such Current operating costs shall be recorded on a consistent basis from month to month and year to year, and the total for each fiscal year shall be used to"calculate a cost per thousand gallons of Reclaimed Water delivered beginning with the second fiscal year after the plant starts to deliver Reclaimed Water to RECIPIENT. 5.2 By way of example, if delivery begins on October 6, 1996, the third fiscal year thereafter would be October 1, 1998 to September 30, 1999. Assume that the actual cost of producing Reclaimed Water for the fiscal year October 1, 1997 through September 30, .1998 was 21~. Further, assume that the Actual Operating Cost of producing and delivering Reclaimed Water to RECIPIENT during the second fiscal year to the end of the third fiscal year (October 1, 1997, through September 30, 1999) increased from 21~ per thousand gallons to 23~ per thousand gallons. The index for increase would be calculated by dividing the base cost of 21~ per ~housand gallons into one-half (!) the 2c increase in cost, resulting in an increase of 4.76% to the previous years' Volume Charge of 20c per thousand gallons for the fourth fiscal year, equal to 20.95~ per thousand gallons (! x 2 = 1 + 21~ = .0476, then 20~ x 1.0476 = 20.95~). 5.3 As soon as reasonably practical, after each fiscal year for which the contract price is subject to adjustment , the BOARD shall prepare a statement showing. in reasonable detail the actual operating costs to produce Reclaimed Water from effluent for the latest two fiscal years. For each such year, the statement shall also spow (1) the number of gallons in thousands of Reclaimed Water delivered to Reclaimed Water users, (2) the cost per thousand gallons 9f Reclaimed Water calculated by dividing such operating costs by such gallons, ( 3 ) the calculation of the ratio of change in cost per thousand gallons from the earlier year to the later year, and (4) the calculation of the adjusted price for the later year. This statement shall be deemed to be the responsibility of the BOARD, and the BOARD's. Executive Director shall attest in writing, to the propriety of the costs and calculations shown theredn. ;,5.4 By January 15 of each year, the BOARD'S Executive Director shall submit to RECIPIENT the supplemental statement set forth in the preceding paragraph, together with the attestation thereto by the BOARD. At the same time, the BOARDS Executive Director shall submit to RECIPIENT a bill or credit shOwing (l)the amount paid by the RECIPIENT for Reclaimed Water delivered in the current fiscal year, (2)the amount payable for Reclaimed Water delivered in the current fiscal year based on the adjusted price for the year as set forth above, and (3)the difference. Any such difference shall 7-23-96 REUSE\DELlVERl_AGR 9 be either paid pL .ptly by the RECIPIENT, or in the next billing to the RECIPIENT. )wn as a credi t 5.5 For billing purposes only prior to the determination of actual costs for adjusting the Volume Charge, during each year subject to price adjustment, the BOARD may use a tentative price per thousand gallons based on using budgeted costs for the current year in the price adjustment calculation set forth above. 5.6 RECIPIENT, at its own expense, has the option of examining the financial statements, general books and related records, and production records of the BOARD. 5.7 Notwithstanding the above provisions, the price paid by the RECIPIENT for Reclaimed Water shall be adjusted downward in the event the BOARD offers Reclaimed Water to any other non-governmental customer(s) upon substantially similar terms and conditions for the same use of the Reclaimed Water at a lower charge than RECIPIENT is or will be paying under this Section 5. Such downward adjustment shall be made to guarantee RECIPIENT that no other user of Reclaimed Water for similar purposes shall receive a mor~ favorable charge than will also be given to RECIPIENT under similar circumstances. 5.8 To the extent that the BOARD receives governmental or environmental noncapital improvement subsidies which are provided to the BOARD for encouraging wastewater reuse and which are intended to be applied pursuant to the terms of such grant or subsidy to the operational costs of the Reclaimed Water facility, as opposed to capital improvements or expansion of such Reclaimed Water facility, the BOARD will apply such funds, to the extent allowed, to its Reclaimed Water facility operating costs. 5.9 The parties to this Agreement agree and recognize that RECIPIENT is under no legal or other obligation to enter into this Agreement for reuse of 'Ilastewater. RECIPIENT currently has operating permits from FDEP and the Water Management District to pump surface and ground water for all RECIPIENT'S irrigation needs and RECIPIENT'S costs to pump this surface and ground water is substantially less than the charges RECIPIENT wi:ll pay for Reclaimed Water under this Agreement. RECIPIENT'S only consideration and motivation to enter into this Agreement is to insure sufficient irrigation water by receiving its full allocation of Reclaimed Water on d~and in accordance with the rate and delivery conditions set forth in this Agreement, . free from adverse environmental or climatic impact. RECIPIENT has determined that the benefits of this Agreement are only marginally economically feasible. Therefore, if as a result of any action by the BOARD, the City of Delray Beach or the City of Boynton Beach, RECIPIENT would be required to pay charges in excess of those established under Section 5, then RECIPIENT shall have the option of canceling this Agreement upon sixty (60) days advance written notice to the BOARD. . 7-2)-96 REUSE\DELlVER2.AGR 10 SECTION 6. Inspt. .:ion. BOARD shall have U right to enter RECIPIENT's property, upon proper identification and at any reasonable time, in order to inspect the irrigation system as may be necessary or desirable for the operation, safety, protection, or preservation thereof, to determine compliance with any law, order or regulation of any governmental authority having jurisdiction, and for sampling at any monitoring wells located on the property. RECIPIENT shall have the right to enter the BOARD's plant and properties and the right of access to its wastewater facilities and records, at any reasonable time, for the purpose of determining whether the BO~~D is in compliance with this Agreement. SECTION 7. Assignments. This Agreement can be assigned by RECIPIENT only with the prior written approval of BOARD, but such approval shall not be unreasonably withheld, provided the assignee shall assume this Agreement and shall demonstrate to BOARD its financial ability to comply with the provisions hereof. SECTION 8. Notices; Proper Form. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delivered when (1) hand delivered to the official hereinafter designated, (2) upon receipt of such notice when deposited in theUni ted States mail, postage prepaid, certified mail, return receipt requested, addressed to a party at the address set forth opposite the party' name below, or at such other address as the party' shall have specified by written notice to the other party delivered in accordance herewith: BOARD SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL" BOARD Executive Director 1801 North Congress Avenue Delray Beach, FL 33445 RECIPIENT PINE TREE GOLF CLUB C/O Club Manager 10600 Pine Tree Terrace Boynton Beach, FL 33436 '. COpy TO: Boynton Beach City Manager P.O. Box 310 Boynton Beach, FL 33425-0310 COpy TO: Delray Beach City Manager 100 N.W. 1st Avenue Delray Beach, FL 33444 7-23-96 REUSE\DELIVERZ_AGR 11 COpy 'I'O: Robert W. Federspiel, Esq. 501 East Atlantic Avenue Delray Beach, FL 33483 SECTION 9. Notices; Default. Each of the parties hereto shall give the other party written notice of any defaults hereunder and shall allow the defaulting party 30 days from the date of receipt to cure such defaults, except failure to deliver water on demand. SECTION 10. Default by Either Party. If any party hereto fails to perform or comply with any of the conditions of this Agreement, and if the nonperformance shall continue for a period of thirty (30) days after the written notice thereof to the non-performing party, or if the performance cannot be reasonably completed within the 3D-day period, or if the non- performing party does not in good faith commence performance within the 3D-day period and does not diligently proceed to complete performance, the non-performing party shall be in default or breach of this Agreement. SECTION 11. Indemnification. In the event RECIPIENT shall fail to comply with any reuse water rule or regulation of any Federal, State or County or local agencies, except BOARD, or violate any permit granted with regard to the use of the irrigation system on the RECIPIENT's property, then RECIPIENT shall indemnify the BOARD, its officers ~ governing board, employees and agents against all claims, demands, causes of actions, suits, judgments, fines, penalties, or losses, including all costs suffered or incurred by the BOARD by reason of such failure. In the event the BOARD shall fail to comply with any rule, regulation, order of any Federal, State or County or local agency, or fail to deliver water meeting the quality standards provided by this Agreement, then the BOARD shall, to the extent allowed by :law, indemnify the RECIPIENT, its officers, board of directors, employees and agents against all claims, demands, causes of actions, suits, judgments, penalties, fines, or losses suffered or incurred by the RECIPIENT as reason of such failure. SECTION 12. Remedies of Default. If either party hereto shall be in default hereunder as set forth in Section la, then the other party shall have the fqllowing remedy: bring suit for th~ breach which has occurred without affecting the obligations of the party to perform the balance of the Agreement. The parties shall have the right not only to injunctive relief, but also to recover any damages which a party may incur as a result of the breach of this Agreement by the other party. The parties further agree that any litigation shall be brought in Palm Beach County, Florida, only, and the parties agree that the proper venue for any such action would only be in Palm Beach County, Florida. The parties further wai ve any right to Jury trial they may have in any action among them involving this Agreement or the alleged breach thereof. 7-23-96 REUSE\DELlVERZ.AGR 12 SECTION 13. Dis, .:1imers of Third Party Bel :iciaries. This Agreement is solely for the benefit of the formal parties hereto and no right or cause of action shall accrue upon or by reason hereof or to or from or for the benefit of any third party not a formal party hereto. SECTION 14. Severability. If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other parts of this Agreement. SECTION 15. Applicable Law. This Agreement and the provisions contained herein shall be construed, controlled and interpreted according to the laws of the State of Florida. SECTION 16. Entire Agreement. This agreement contains the entire Agreement between the parties hereto with respect to thi$ transaction and supersedes all prior negotiations and all prior written or oral understandings. SECTION 17. Amendments. This Agreement may only be amended, supplemented or discharged by an instrument in writing signed by all parties hereto. SECTION 18. Recordation. This Agreement or a mutually agreeable memorandum thereof will be recorded in the public records of Palm Beach County, Florida. SECTION 19. Extent of Agreement. Each party shall advise the other party, in writing, as to the status of its construction document preparation and construction of associated improvements on a monthly basis to ensure that both parties' activities are progressing 'with reasonable diligence. _, SECTION 20. Completion Date. The Board agrees to use its best efforts have its Reclaimed Water facilities completed and available for use for RECIPIENT and RECIP~ENT agrees to use its best efforts have its Irrigation System complete and to accept delivery of Reclaimed Water from the BOARD on or before November 1, 1997, subject to matters beyond the reasonable control of either party. . Notwithstanding any provision of this Agreement to the contrary, the RECIPIENT shall have the absolute obligation to commence payments for the reclaimed watexupon the completion of construction as provided for in Section 3.5 above. SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT ~D DISPOSAL BOARD /1 ./f ATTE.S TE rY4Y~. /71'1 ~/ /#1 /J /~./ /. ~Jt/ Secr'efa,aty - By: ~~13 /p/., /r:,>~ Chairman ~ i' 7-23-96 REUSK\DKLlVERZ.AGR 13 APPRO~D AS TO F01A~: /~ /1 <\ ~,-===- Board Attorney APPROVED BY: / ///'" . ,/' -~;-/ "" - h" ~// ,/'_ '~ --1/' /~' -~..~ Ci tY''.~0f D/e'iray !=}.each I Mayor APPROVED/ BY : ,- ; ~> ./ (7 , ~~ --.---- .jc;f ", /'0 ~~r' ,:.... I /,~ .... /r-"Z .-' .-.I'"'/~ ? I ~----. Y ...., I ./' - ----==-. Ci,ty of ,abynton J~~ach, Mayor /1 /' /1 /'/ ,-' /// 1/ t.r- 7-23-96 REUSE\DELTVEIl2,AGR ./ /} y---- tf 14 ASSIGNMENT AGREEMENT *" ~05-0B7 -r THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of ,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter 163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON." WITNESSETH; WHEREAS, the BOARD has heretofore entered into that certain Agreement with Pine Tree Golf Club, concerning delivery and acceptance of reclaimed water dated the 17th day of January, 1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water Agreement;" and WHEREAS, the BOARD is modifying its reclaimed .water operations as a result of an amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD will provide wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach; and WHEREAS, in order to implement such modification and the mode of operation as above described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting .such assignment, shall assume all of the rights, duties and obligations of the BOARD under said Agreement. . ~.c. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration from one party to the other, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows: 1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed Water Agreement to BOYNTON, effective the 1st day of October, 2005. , 7., BOYNTON hereby agrees to accept and assume all rights, benefits and obligations created under the said Reclaimed Water Agreement pursuant to this assignment. ::;. IN WIlNESS WHEREOF, the parties have executed this Assignment Agreement the day and year first above written. sourn CENTRAL REGIONAL W ASTEW A TER TRE ENT AND DISPOSAL BOARD ""- t~ Chairman APPROVED AS TO FORM ~4 Bpfu-d Atto~y . ATTESTED BY: Secretary APPROVED AS TO FORM City Attorney " .;. CITY OF BOYNTON BEACH By: Mayor THIS AGREEMENT is made and entered into on this i {' ,day of Ur.>0, ilc'i2S, by and between South Central Regional Wastewater Treatm4tit' and Disposal Board, a municipal corporation created pursuant to the laws of the State of Florida (hereinafter BOARD), and Pine Tree Golf Club (hereinafter RECIPIENT). AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD ANn PINE TREE GOLF CLUB CONCERNING DELIVERY AND ACCEPTANCE OF RECLAIMED WATER Accordingly, for and in consideration contained herein, mutual understandings contained herein, and other considera~ion, sUfIiciency of which is hereby acknowledged the parties covenant and agree as follows: of the recitals and agreements the receipt and by the parties, SECTION 1. Recitals. The below recitals are true and correct and form a material part of this Agreement. 1.1 The Parties hereto represent to one another that each has the full POwer and authority to enter into this Agreement and to carry out their respective obligations thereunder. The BOARD is composed of the Cities of Boynton Beach and Delray Beac h ' (the · Ci ties · ), pursuant to an Inter local Agreement entered into pursuant to Chapter 163, Florida Statutes. 1.2 The parties recognize that reUse of Reclaimed Water is in the public interest, as it recaptures an otherwise wasted and unused water resource. The BOAlID owns and operat,es wastewater facilities which it proposes to Upgrade to produce Reclaimed Water SUitable for irrigation of areas, such as golf courses, parks, School grounds and cemeteries, and RECIPIENT is willing to accept Such Reclaimed Water for irrigation purposes in the public interest. 1. 3 In a normal year, RECIPIENTS will irrigate approximately 240 days and most of RECIPIENT'S daily requirements will be needed during approximately 12 honrs conun~nCing about SUndown. BOAlID agrees to use its best efforts 'to SUPply Reclaimed Water On demand to RECIPIENT up to the volume and at the charge set forth in this, Agreement. RECl~IENT has valUable golf courses that require access to Such Reclaimed Water and has expended substantial money and effort and has foregone other avenues to meet its irrigation requirements in reliance on this Agreement. The BOARD is not required to upgrade its wastewater system to produce Reclaimed Water but is doing So in reliance upon the RECIPIENT entering into this Agreement. 7-23-96 !lEUSE\ DELIVER2. AGll 1 1.4 The RECIPIENT owns and controls land which is described in Exhibit "An (the "Property"), attached and made a part 'hereof by reference. 1.5 RECIPIENT agrees to: (a) irrigate the Property using Reclaimed Water; (b) maintain the storage facility, if applicable, ponds and lakes, if applicable, pumps and irrigation system to be located on the Property from the point of delivery; and (c) upgrade its irrigation system when reasonable and economical to utilize the volume of Reclaimed Water accepted from the BOARD and as required to meet any federal; stater or local requirements; (d) maintain compliance with the operating restrictions for protecting human health and the environment attached thereto as Exhibit "Bn. 1.6 Recipient shall accept the Reclaimed Water delivered by the BOARD and use it for irrigation of the Property. The BOARD shall be deemed to be in possession and control of the Reclaimed Water until it shall have been delivered to the RECIPIENT at the Point of Delivery. After such delivery, the RECIPIENT shall be deemed to be in posse"ssion and control thereof. 1.7 The RECIPIENT agrees to maintain all Federal, State and governmental permits issued to it and necessary to allow it to receive and utilize the Reclaimed Water pursuant to the terms of this Agreement. 1.8 The right of the RECIPIENT to sell, transfer or encumber the Property in areas irrigated with the ReclaLmed Water shall not be restricted by this Agreement. This Agreem~nt shall run with the land so long as the use of a major portion of the Property shall continue to be for golf course and related purposes. Any subsequent party in interest to such golf course or courses shall be obligated to 'receive and pay for Reclaimed Water under the same terms and conditions of this Agreement, unless modified by mutual consent of the BOARD and the buyer or transferee. 1.9 METER. The design and construction of the metering fac~lity shall be the responsibility of the BOARD and must be mutually approved in advance in writing by BOARD and RECIPIENT. The meter will be utilized to measure the amount of Re#laimed Water delivered by the BOARD to RECIPIENT and the BOARD shall operate, maintain, cause to be calibrated, and repair said meter.. 1.10 CONSTRUCTION. Upon completion of the engineering design of the metering facility, and the acceptance of same by both parties, the metering facility will be constructed by the BOARD and plaqed into service. 7-Z3-96 REUSS\DSLTVERZ.AGR 2 1.11 COSTS AND OPERATION. The BOARD shall bear the cost of constructing, owning and maintaining the Reclaimed Water meter and related appurtenances and the lines interconnecting BOARD's system into the metering facility, including all valves and appurtenances "pto and including the discharge flanges of the valves immediately downstream' of the meter. The parties agree that the RECIPIENT shall have reasonable access to the metering facility, to all other Reclaimed Water meters, check valves, and any other appu~tenances thereto, to verify flows, meter readings, meter calibrations, efficiency of the check valves, and any other performance data necessary to the operations of the Interconnection facility upon reasonable advance notice to the Board. The metering device shall be tested and calibrated, at BOARD's expense, at least once per year and repaired if required. Any errors in meter reading and any discrepancy in J.eter results from a true and correct measure of Reclaimed Water flow to RECIPIENT shall pe adjusted properly and retroactively to reflect the flow to RECIPIENT. Any incorrect metering device shall be repaired forthwi th by the BOARD. . 1.12 This agreement has been duly authorized by all named parties. Pursuant to Section 3 (C) of the Interloca1 Agreement dated December 26, 1974, between the City of Boynton Beach and the City of Delray 'Beach, this Agreement and all provisions thereof have been contractually approved by a majority vote of each City council as the act of each City, or, if such approval has not already been obtained, such approval will be obtained and certified to RECIPIENT before this Agreement shall become effective. SECTION 2. Definitions. The parties agree that in cOnstruing this Agreement, the following words, phrases and terms shall have the following meanings, unless the context requires otherwise: 2.1 "Agreement" means this Agreement between BOARD and RECIPIENT. 2.2 "FDEP'" means-the Florida Department of Environmental ProteGtion, and its successors. 2.3 "Fiscal Year" means October 1 to September 30 of the fq:~lowing year. 2.4 "GPD" means gallons per day. 2 . 5 .. Irrigation system" < means those pomp stations, lines, pipes, sprinkler heads, ponds and lakes, storage fiicilities, if applicable, and pertinent equipment that are located on RECIPIENT's property and used to store, spray and irrigate with Reclaimed Water that has been treated in accordance with 7-23-96 flEUSE\ OELIVER2 ,AGR 3 all applicable governmental regulations and in accordance with the terms and provisions of this Agreement. 2.6 "MGD" means million gallons per day. 2.7 "Point of delivery" means the point at which divides the BOARD's wastewater facilities RECIPIENT's irrigation system, or as otherwise engineering drawings approved by both parties. the meter from the noted on 2.8 "Reclaimed Water" means wastewater that has been treated in accordance with Section 3.4 of this Agreement. 2.9 "Reclaimed Water Disposal Facilities" means those fa.cili ties necessary for the storage, if applicable,' transportation and disposal of wastewater previously treated in accordance with applicable local, state and federal standards and limitation at the plant to the standard of Reclaimed Water. These facilities include, but are not limited to, any Reclaimed Water transmission facilities, irrigation systems and storage facilities, if applicable. 2.10 "Reclaimed Water Transmission Facilities" means the BOARD's facilities used to transmit Reclaimed Water. 2.11 "Storage Facilities" means those facilities which may be designed, permitted and constructed' on the Property, if -applicable, or upon the BOARD's property, if applicable, and which are necessary to store and hold Reclaimed Water iI}. a manner that complies with regulatory re.quirements. 2.12 "Wastewater" means the product received by the wastewater treatment facility for treatment. 2.13 "Wastewater Facilities n means the BOARD's plant located at 1801 North Congress Avenue, Delray Beach, Florida, and Reclaimed Water transmission facilities, including all interceptors, lines, pipes, meters, couplings, pumps, force mains, and appurtenant equipment necessary to treat and transmit the Reclaimed Water. SECTION 3. Grant of License and Easement. RECIPIENT hereby g~~nts to BOARD an easement over the Property, including a 15 foot utility easement to be mutually agreed upon and located in the approximate location depicted on Exhibit "C" attached hereto, to allow construction, operation, maintenance and repair of the BOARD's Reclaimed Water transmission main to the point of delivery, and' the right to transm{t, deliver and dispose of Reclaimed Water through the irrigation system and storage facility, if applicable, on the Property in accordance with and subject to the following conditions: 7-23-96 REUSE\DELIVER2..i\GR 4 3.1 Desion and installation of Certain Facilities. BOARD agrees to design, permit, install and operate improvements and additions at its existing wastewater treatment plant, and the BOARD's Reclaimed Water transmission facilities, and to Permit effluent disposal facilities in order to provide Reclaimed Water at the point of delivery. RECIPIENT agrees to design, permit, install and operate, at its sole expense, any storage facili ty, if applicable, and the irrigation system on the Property up to the point of delivery. 3.2 Permits and A roval for the Irriqation S stem. Recipient shall be responsible, in cooperation with Board, for obtaining and maintaining necessary governmental permits and approvals in order to install and operate the irrigation system: provided, however, that Board shall be responsible for obtaining and maintalningall. permits for Reclaimed Water disposal facilities. For all wastewater facilities located on its side of the point of delivery, Board shall be solely responsible for obtaining~ compiling, providing and complying with all monitoring, sampling, te'sting, and reporting requirements for the Reclaimed Water, which may be imposed by government law, rule, permit, or approval. Recipient shall grant Board upon reasonable advance notice to RECIPIENT access to the irrigation system as needed to assure continued compliance with applicable laws and regulations, inClUding, but not limited to, any monitoring or testing requirements. 3.3 - A. Delivery of Reclaimed Water. BOARD agrees to use its best efforts to.make available and deliver in' the volume and at the times requested, an annual volume of . Reclaimed Water of at least 86 million gallons (MGY), with maximum volume anyone day up. to but not to exceed 800,000 gallons per day (GPD), at a rate. of 1,750 gallons per minute (GPM), for use on the Property and, at its cost, to connect the BOARD's Reclaimed Water transmission facilit{es to RECIPIENT's irrigation system at the. point(s) of delivery agreed upon and as shown in Exhibit "C". Both RECIPIENT and BOARD recognize that water SUpply and demand will vary depending on a nUmber of factors, primarily ~limatic conditions. " B. Storaqe. The RECIPIENT shall maintain, in compliance with all applicable laws and regulations, the necessary storage facilities on their property at their sole expense. 3.4 Quality of Reclaimed Water. BOARD shall make available to RECIPIENT Reclaimed Water of a quality consistent with the requirements of "public aCcess" treatment levels as set 'forthin Chapter 17-610, Florida Administrative Code, or its SUccessor Code prOVisions, or of a quality consistent with more stringent requirements that may be imposed by any governmental agency having jurisdiction.and legal authority. In recognition of the need to Supply Reclaimed Water, the 1-23-96 JlEIJSE\DELlVER2 .AGR 5 BOARD shall also be required to comply with effluent limi tations set forth in Exhibit "D ". All Reclaimed Water made available by BOARD under this Agreement shall, at a minimum, have been treated by advanced treatment methods to remove harmful levels of bacteria, viruses, and other constituents or pollutants which could constitute a danger to human health, and in accordance with all applicable federal, state and local laws, rules, regulations, policies, ordinances, resolutions 1 orders and permi ts and the requirements of Exhibit liD". BOARD shall provide continuous moni toring of chlorine and turbidity, as well as other required ground and surface water quality sampling and monitoring of Reclaimed Water as required by local, state and federal regulations and by Exhibit "D". BOARD agrees to divert away as expeditiously as possible, from the irrigation system, any Reclaimed Water which does not comply with the terms and conditions of this Agreement or which does not meet the applicable state, federal or local laws and regulations and to promptly and fully notify RECIPIENT of such action. Copies of all test results shall be" available to RECIPIENT upon request. 3.5 Minimum Purchase of Reclaimed Water. by RECIPIENT. Upon completion of the construction of the wastewater facilities and continuing for so long as BOARD complies with the requirements set forth in this Agreement, RECIPIENT has an obligation to pay for at least 86 million gallons annually of Reclaimed Water for spray irrigation on the Property, subject to conditions as set forth in Section 3.3 of this Agreement. Notwithstanding anything to the contrary, Recipient .shall not be obligated to. accept delivery of or pay for Reclaimed Water which does not comply with the terms and conditions of this agreement. Such exception to RECIPIENT'S obligation to accept delivery of such Reclaimed Water by reason of the Board's failure to meet the water quality standards required in this Agreement shall relieve RECIPIENT of its obligation to pay BOARD for the minimum annual volume set forth above at the rates determined pursuant to Paragraph 5 below only to the extent that the BOARD shall not have made available to REC:rPIENT such annual minimum volume of Reclaimed Water meeting the requirements of this Agreement through the completion of the then current fiscal year. Recipient shall n~t transfer the water provided by Board to any third party or off of the Recipient's property which is the subject of this agreement. 3.6 RECIPIENT shall be responsible for all maintenance of water and its irrigation system on RECIPIENTS side of the point(s) of delivery. 7-23-91> ~SE\DELlVERZ"AGR 6 3.7 Nothing in this Agreement shall be construed to give RECIPIENT any right to the exclusive receipt of BOARD I S Reclaimed Water Supply. 3.8 The BOARb agrees that it will not enter into contracts with other recipients of Reclaimed Water for more than its daily Supply capacity as the same exists from time to time. SECTION 4. Term and Fees 4.1 Term. The Easement and this Agreement shall be in effect for a period of twenty (20) years commencing on the date of execution of this Agreement. The term of the Easement and this Agreement shall be automatically extended for successive periods of ten (10) years each, upon the Same terms and conditions as herein provided, unless either party hereto notifies the other by certified mail at least three years prior to the expiration of the initial term of this Agreement or any renewal thereof, that this Agr~ement shall not be so extended. 4.2 PaYment of Fees. In return for and in consideration of BOARD's construction of facilities and delivery of Reclaimed Water, RECIPIENT agrees to pay BOARD a one-time connection fee of $5,100.00 and a volUme charge of 206 for each 1,000 gallons of Reclaimed Water used, (the "Voluine Charge") but on an annual basis not less than the above rate times the minimum quantity RECIPIENT has agreed to purchase under Section 3.5 together with a storage charge equal to 8<<; (the "Storage Charge") for each 1,000 gallons of Reclaimed Water the Volume Charge for which is paid for by RECIPIENT, as provided ~ove. SU9h storage charge' shall remain constant and shall not be adjusted, during the term.of. this Agreement or any extension. Payment of the connection fee shall be in one lump sum no later than the commencement of construction of the modification to the BOARD's wastewater facilities for the. treatment and production of Reclaimed Water. The Volume Charge shall remain constant Until the expiration of the third (3) fisGal .yea:r; from the conunencement of pumping (prov~d~d that if less than six (6) months expires between the time BOARD commences Or makes available delivery of ReClaimed Water and the end of. the first fiscal year,. such first year shap not Count as the first fiscal year), after which the price will be. redetermined as provided in Section 5.. The BOARD shall render billings to RECIPIENT for both the volume charge and storage charge on a mOnthly baSis for such applicable charges on the basis of the greater of the actual Reclaimed Water deliVered or the volume charge and storage charge for 1/12th of the minimum guaranteed annual volume agreed to be accepted by RECIPIENT pursuant to Section 3.5 above; prOvided that RECIPIENT shall pay no more, on a fiscal year basis, than ( i ) Such minimum annual guaranteed vol wne 7-23-96 REuSE\OELlVERz.J\GJl 7 charge or (ii)charges for Reclaimed Water actually accepted during the fiscal year, whichever is more. 4.3 In the event the BOARD shall not be able to deliver Reclaimed Water in the minimum volume agreed to in Section 3.5 of this Agreement, as a result of its inability to do so and through no action or inaction on the part of the RECIPIENT, the RECIPIENT shall be entitled to a credit for such shortage in the minimum agreed to volume (by a proportionate reduction) . SECTION 5. Future Adjustment of Price of Reclaimed Water. The Volume Charge shall be adjusted after the first three (3) fiscal years as aforesaid upward or downward based on one-half (I) of the year-to-year change in the actual operating costs of producing, metering and delivering Reclaimed Water from effluent and transmitting it to the point of delivery for the RECIPIENT as it relates to the preceding year's Volume Charge, however, such Volume Charge shall never be less than 20c per thousand gallons nor shall an increase be applied if the actual operating costs shall be less than said 20c per thousand gallons. The first such adjustment. shall 08cur effective the first day of the fourth fiscal year following the initial delivery of Reclaimed Water to RECIPIENT and shall reflect one-half (~) the relative increase or decrease in actual operating costs incurred by the BOARD during the second fiscal year of delivery of Reclaimed Water to RECIPIENT as compared to the third fiscal year and for each subsequent year thereafter as compared to the previous year. The actual operating cost and change therein shall be the basis for determining the index for making the adjustments in the Volume Charge. Actual operating costs ("Actual Operating Costs It) shall be determined in conformity with _generally accepted accounting principles consistently applied, except the depreciation of plant and equipment and any other provision for capital recovery, including interest on long term debt, shall not be included as operating cost~, a~ such costs are properly allocable to wastewater customers. Any increase or decrease in the Volume Charge shall be determined as soon as reaspnably practicable and shall be effective retroactive to the scheduled date of adjustment and a sum due to the BOARD as a result of the retroactive effect of such adjustment or th~ credit due the RECIPIENT, if applicable, shall be reflected in the next billings regularly submitted by BOARD to RECIPIENT as provided in Subparagraph 5.4. 5.1 BOARD personnel shall establish, or cause to be established, and maintain an accbunting system in which such current operating costs are recorded monthly in separate accounts from sewage processing accounts. Costs shall be recognized on a first-in first-out basis. The BOARD personnel shall prepare and preserve any studies relating to the allocation of operating costs on other than an actually incurred basis. By way of example, the parties agree that all 1-23-96 REUSE\DELlVERZ.AGR 8 operating and mai_ -enance costs of labor, che .::als and power, permits, regulatory requirements, legal, engineering, administration, testing, meter calibration and contract services may be allocated based on appropriate data or studies. Such CUrrent operating costs shall be recorded on a consistent basis from month to month and year to year, and the total for each fiscal year shall be used to calculate a cost per thousand gallons of Reclaimed Water delivered beginning with the second fiscal year after the plant starts to deliver Reclaimed Water to RECIPIENT. 5.2 By way of example, if delivery begins on October 6, 1996, the third fiscal year thereafter would be October 1, 1998 to September 30, 1999. Assume that the actual cost of producing Reclaimed Water for the fiscal year October 1, 1997 through September 30, -1998 was 216. Further, assume that the Actual Operating Cost of producing and delivering Reclaimed Water to RECIPIENT during the second fiscal year to the end of the third fiscal year (October 1, 1997, through September 30, 1999) increased from 216 per thousand gallons to 23<: per thousand gallons. The index for increase would be calculated by dividing the base cost of 216 per thousand gallons into one-half (t) the 2<: increase in cost, resulting in an increase of 4.76% to the p'revious years' Volume Charge of 206 per thousand gallons for the fourth fiscal year, equal to 20.956 per thousand gallons (I x 2 = 1 ~ 216 = .0476, then 206 x 1.0476 = 20.956). 5.3 As soon as reasonably practical, after each fiscal year for which the contract price is subject to adjustment.~ the BOARD shall prepare a statement showing. in reasonable detail the actual operating costs to produce Reclaimed Water from effluent for the latest two fiscal years. For each such year, the statement shall also spow (1) the number of gallons in thousands of Reclaimed Water delivered to Reclaimed Water users, (2) the cost per thousand gallons 'of Reclaimed Water calculated by dividing Such operating costs by such gallons, (3) the calculation of the ratio of change in cost per thousand gallons from the earlier year to the later year, and. (4) the calculation of the adjusted price for the later year. This statement shall be-deemed to be the responsibility of the BOARD, and the BOARD's Executive Director shall attest in writing to the propriety of the costs and calculations shown thereon. 5.4 By January 15 of each year, the BOARD'S Executive Director shall submit to RECIPIENT the supplemental statement set forth in the preceding paragraph, together with the attestation thereto by the BOARD. At the same time, the BOARDS Executive Director shall submit to RECIPIENT a bill or credit ShOWing ( 1) the amount paid by the RECIPIENT for Reclaimed Water delivered in the current fiscal year, (2)the amount payable for Reclaimed Water delivered in the current fiscal year based on the adjusted price for the year as set forth above, and (3)the difference. Any Such difference shall 1-23-96 REuS&\DELlVERZ_AGR 9 be either paid pr..ptly by the RECIPIENT, or in the next billing to the RECIPIENT. )wn as a credit 5.5 For billing purposes only prior to the d~termination of actual costs for adjusting the Volume Charge, during each year subject to price adjustment, the BOARD may use a tentative pric2 per thousand gallons based on using budgeted costs for the current year in the price adjustment calculation set forth above. 5.6 RECIPIENT, at its own expense, has the option of examining the financial statements, general books and related records, and production records of the BOARD. 5.7 Notwithstanding the above provlslons, the price paid by the RECIPIENT for Reclaimed Water shall be adjusted downward in the event the BOARD offers Reclaimed Water to any other non-governmental customer(s) upon substantially similar terms and conditions for the same use of the Reclaimed Water at a lower charge than RECIPIENT is or will be paying under this Section 5. Such downward adjustment shall be made to guarantee RECIPIENT that no other user.of Reclaimed Water for similar purposes shall receive a more favorable charge than will also be given to RECIPIENT under similar circumstances. 5.8 To the extent that the BOARD receives governmental or environmental noncapital improvement subsidies which are provided to the BOARD for encouraging wastewater reuse and which are intended to be applied pursuant to the terms of such grant or subsidy to the operational costs of the Reclaimed Water facility, as opposed to capital improvements or expansion of such Reclaimed Water facility, the BOARD will apply such funds, to the extent dllowed, to its Reclaimed Water facility operating costs. 5.9 The parties to this Agreement .agree and recognize that RECIPIENT is under no legal or other-obligation to enter into this Agreement for reuse of wastewater. RECIPIENT currently has operating permits from FDEP and the Water Management District to pump surface and ground water for all RECIPIENT'S irrigation needs and RECIPIENT'S costs to pump this surface and ground water is substantially less than the cha-rges RECIPIENT will pay for Reclaimed Water under this Agreement. RECIPIENT'S only consideration and motivation to e~ter into this Agreement is to insure sufficient irrigation water by receiving its full allocation of Reclaimed Water on demand in accordance with the rate and delivery conditions set forth in this Agreem~nt,.free from adverse environmental or climatic impact. RECIPIENT has determined that the benefits of this Agreement are only marginally economically feasible. Therefore, if as a result of any action by the BOARD, the City of Delray Beach or the City of Boynton Beach, RECIPIENT would be required to pay charges in excess of those established under Section 5, then RECIPIENT shall have the option of canceling this Agreement upon sixty (60) days advance written notice to the BOARD. 7-23-96 REUSE\DELIVERZ.AGR 10 SECTION 6. Inspt. .:ion. BOARD shall have tl right to enter RECIPIENT's propertYr upon proper identification and at any reasonable time, in order to inspect the irrigation system as may be necessary or desirable for the operationr safety r protection, or preservation thereofr to determine compliance with any law, order or regulation of any governmental authority having juriSdiction, and for sampling at any monitoring wells located on the property. RECIPIENT shall have the right to enter the BOARD's plant and properties and the right of access to its wastewater facilities and recordsr at any reasonable timer for the purpose of determining whether the BOfu~D is in compliance with this Agreement. SECT:tON 7. Assignments. This Agreement can be assigned by RECIPIENT only with the prior written approval of BOARD, but such approval shall not be unreasonably withheldr provided the aS$ignee shall assume this Agreement and shall demonstrate to BOARD its financial ability, to comply with the provisions hereof. . SECTION 8. Notices; Proper Form. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delivered when (T) hand delivered to the official hereinafter designated, (2) upon receipt of such notice when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to a party at the address set forth opposite the party' name below, or at such other address as the. party . shall have specified by written notice to the other party delivered in accordance herewith: BOARD SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD Executive Director 1801 North Congress Avenue Delray Beach! FL 33445 RECIPIENT PINE TREE GOLF CLUB C/O Club Manager 10600 Pine Tree Terrace Boynton Beach, FL 33436 '. ., COpy TO: Boynton Beach City Manager P.O. Box 310 Boynton Beachr FL 33425-0310 COpy TO: Delray Beach City Manager 100 N.W. 1st Avenue Delray Beach, FL 33444 7-23-96 REUSE\DELlYERZ_AGR 11 COPY TO: Robert W. Federspiel, Esq. 501 East Atlantic Avenue Delray Beach, FL 33483 SECTION 9. Notices; Default. Each of the parties hereto shall give the other party written notice of any defaults hereunder and shall allow the defaulting party 30 days from the date of receipt to cure such defaults, except failure to deliver water on demand. SECTION 10. Default by Either Party. If any party hereto fails to perform or comply with any of the conditions of this Agreement, and if the nonperformance shall continue for a period of thirty (30) days after the written notice thereof to the, non-performing party, or if the performance cannot be reasonably completed within the 30-day period, or if the non- performing party does not in good faith commence performance within the 30-day period anq does not diligently proceed to complete performance, the non-performing party shall be in default or breach of this Agreement. SECTION 11. Indemnification. In the event RECIPIENT shall fail to comply with any reuse water rule or regulation of any Federalr State or County or local agencies, except BOARD, or violate any permit granted with regard to the use of the irrigation system on the RECIPIENT's property, then RECIPIENT shall indemnify the BOARD, its officers ~ governing board, employees and agents against all claims, demands, causes of actions, suits, judgments, fines, penalties, or lossesr including all costs suffered or incurred by the BOARD by reason of such failure. In the event the BOARD shall fail to comply with any rule, regulation, order of any Federal, State or County or local agency, or fail tod~liver water meeting the quality standards provided by this Agreement, then the BOARD shall, to the extent allowed by -law, indemnify the RECIPIENT, its officers, board of directors, employees and agents against all claimsr demands, causes of actions, suits, judgments, penalties, fines, or losses suffered or incurred by the RECIPIENT as reason of such failure. SEC~ION 12. Remedies of Default. If either party hereto shall be in default hereunder ~s set forth in Section 10, then the ot~er party shall have the following remedy: bring suit for th~ breach which has occurred without affecting the obligations of the party to perform the balance of the Agreement. The parties shall have the right not only to injunctive relief, but also to recover any damages which a party may incur as a result of the breach of this Agreement by the other party. The parties further agree that any litigation shall be brought in Palm Beach County, Florida, only, and the parties agree that the proper venue for any such action would only be in Palm Beach County, Florida. The parties further waive any right to Jury trial they may have in any action among them involving this Agreement or the alleged breach thereo f . 7-23-96 REUSE\DELIVER2.J\GR 12 SECTION 13. Dis, ..1imers of Third Party Be: :~ciaries. This Agreement is solely for the benefit of the formal parties hereto and no right or cause of action shall accrue upon or by reason hereof or to or from or for the benefit of any third party not a formal party hereto. SECTION 14. Severability. If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other parts of this Agreement. SECTION 15. Applicable Law. This Agreement and the provisions contained herein shall be construed / controlled and interpreted according to the laws of the State of Florida. SECTION 16. Entire Agreement. This agreement contains the entire Agreement between the parties hereto with respect to this transaction and supersedes all prior negotiations and all prior written or oral understandings. SECTION 17. Amendments. This Agreement may only be amended, supplemented or discharged by an instrument in writing signed by all parties hereto. SECTION 18. Recordation. This Agreement or a mutually agreeable memorandum thereof wi.ll be recorded in the public records of Palm Beach County/ Florida. SECTION 19. Extent of Agreement. Each party shall advise the other party, in writing, as to the status of its construction document preparation and construction of associated improvements on a monthly basis to ensure that both parties' activities are progressing with reasonable diligence. SECTION 20. Completion Date. The Board agrees to use its best efforts have its Reclaimed Water facilities completed and available for use for RECIPIENT and RECIPIENT agrees to use its best efforts have its Irrigation System complete and to accept delivery of Reclaimed Water from the BOARD on or before November 1, 1997, subject to matters beyond the reasonable control of either party.' Notwithstanding any provision of this Agreement to the_contrary, the RECIPIENT shall have the absQlu,te obligation to conunence payments for the reclaimed water upon the completion of construction as provided for in Section 3.5 above. SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD By: ;::]::;;,..~& ~.... 7~ Chainnan 7-23-96 REUSE\DELlVERZ .AGR 13 APPROVED AS TO FORM: " .A1- -<:~~ / ! Board Attorney APPROVED BY: / " /. L J~U~ Ci tY/0f D~'lray l?fi'ach T Mayor AP;~~VED/BY : ~. . . , ' -------- /;/ /, ~_. ., .' '>~""; /"/ ~^l<->-1~/ cr-"'""----. Ci:tY:- of/r6;nton/~€i~ch, Mayor ./~./ /~;i / / :/ PI:?w.+N~ By :~_~~/-'C_,,'- . 'z _/,1.,~.-I A . ,r- 7-23-96 REUSE\DELIVER2 ..llGR 14 ASSIGNMENT AGREEMENT ~ 11- J.\05-087 ~ THIS ASSIGNMENT AGREEMENT is made and entered into this __ day of ,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter 163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON." WITNESSETH; WHEREAS, the BOARD has heretofore entered into that certain Agreement with Quail Ridge Country Club, concerning delivery and acceptance of reclaimed water dated the 5th day of August, 1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water Agreement;" and WHEREAS, the BOARD is modifying its reclaimed water operations as a result of an amendment to the Interlocal Agreement creating the BOARD, .whereby the BOARD will provide wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach; and WHEREAS, in order to implement such modification and the mode of operation as above described, the BOARD, by this Agreement, intendS to assign all of its rights, duties and obligations under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such assignment, shall assume all of the rights, duties and obligations of the BOARD under said Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration from one party to the other, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows: 1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed Water Agreement to BOYNTON, effective the 1st day of October, 2005. - , 2.. BOYNTON hereby agrees to accept and assume all rights, benefits and obligations created under the said Reclaimed Water Agreement pursuant to this assignment. .-: ~. IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day and year first above written. SOU CENTRAL REGIONAL W ASTEW A TER TREATMENT AND DISPOSAL BOARD B~ c: ~-/u ~ P. dN 0 nnte ame: M"i.... C "'e....g.lson Chairman APPROVED AS TOlORM B~it~meY '---" ATTESTED BY: Secretary APPROVED AS TO FORM City Attorney 1~ CITY OF BOYNTON BEACH By: Mayor 2. '.' '.'~! ~-:?~ t] 7 FIRST AMENDMENT AND RESTATEMENT OF --- AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL wAsTEWATER TREATMENT AND DISPOSAL BOARD AND QUAIL RIDGE COUNTRY CLUB CONCERNING DELIVERY AND ACCEPTANCE OF RECLAIMED WATER THIS FIRST AMENDMENT AND RESTATEMENT of that certain AGREEMENT dated January 18, 1996, is made and entered into on this J5 day of .stv~n~ , 1997, by and between South Central Regional astewater Treatment and Disposal Board, a municipal corporation created pursuant to the laws of the State of Florida '(hereinafter BOARD), and Quail Ridge Country Club, Inc. (hereinafter RECIPIENT). WIT N E SSE T H: WHEREAS, the BOARD and RECIPIENT have heretofore entered into that certain Agreement Concerning Delivery and Acceptance of Reclaimed Water dated January 18, 1995; and WHEREAS ~ RECIPIENT has requested an Amendment to. such Agreement to provide for'additional volumes of reclaimed water in. order to allow RECIPIENT to supply reclaimed water for landscape irrigation purposes to the Quail Ridge Property Owner's Association, Inc. , (the "POA"), pursuant to the contractual relationship between RECIP!ENT and the PDA; and WHEREAS, the BOARD is agreeable to amending said Contract to provide the additional volumes requested pursuant to the terms and conditions set forth in this Amendment. Accordingly, for and in consideration of the recitals contained herein, mutual understandings and agreements contained herein, and other consideration, the receipt and sufficiency.of which is: hereby_ .acknowledged by)the, Parties, the Parties covenant and agre~ as follows: - '. '; SECTION 1. Recitals. The below recitals are true and correct and fo:gq a material 'part of this Agreement. 1.1 The Parties hereto represent to one another that each has the full power and authority to enter into this Agreemeht and to carry out their respective obligations thereunder. The BOARD is composed of the Ci ties of Boynton Beach and Delray Beach (the "Cities"), pursuant to an Interlocal Agreement entered into pursuant to Chapter 163, Florida Statutes. 4-9-97 Reuse/Quail.rdg/restatement.amd 1 8 1..2 The parties recognize that reuse of Reclaimed Water is in the public interest, as it recaptures. an otherwise wasted and unused water resource. The BOARD owns and operates wastewater facilities which it proposes to upgrade to produce Reclaimed Water suitable for irrigation of areas, such as golf courses, parks, school grounds, cemeteries, and landscaping irrigation, and RECIPIENT is willing to accept such Reclaimed Water for irrigation purposes in the public interest. 1.3 In a normal year, RECIPIENTS will irrigate approximately 240 days and most of RECIPIENT'S daily requirements will be needed during approximately 12 hours commencing about sundown, BOARD agrees to use its best efforts to supply Reclaimed Water on demand to REC1PIENT up to the volume and at the charge set forth in this Agreement. RECIPIENT has valuable golf courses that require access to such Reclaimed Water and has expended sUbstantial money and effort and has foregbne other avenues to meet its irrigation requirements in reliance on this Agreement. The BOARD is not required to upgrade its wastewater system to produce Reclaimed Water but is doing so in reliance upon the RECIPIENT entering into this Agreement. 1.4 (a) The RECIPIENT owns and controls land (the "Property") which is described in Exhibit "A", attached and made.a part hereof by reference; (b) The RECIPIENT by contractual relationship will have obtained the right to provide reclaimed water for landscaping irrigation purposes to the POA's properties (the "POA Property") which lie within the property described in Exhibit "A." 1 . 5 RECIPIENT agrees to: (a) irrigate the Property and provide reclaimed water' for irrigating the POA. Property using Reclaimed Water; (b) maintain the storage facility, if applicable, ponds and lakes, if applicable, pumps and irrigation system to be located on the Property from the point of delivery; and (c) upgrade its irrigation system when reasonable and economical to utilize the volume of Reclaimed Water accepted from the BOARD and as required to .meet any federal, state, or local requirements, (d) maintain compliance with the operating restrictions for protecting human health and the environment attached thereto as Exhibit "B." 1.6 RECIPIENT shall accept the Reclaimed Water delivered by the BQARD and use .Lt for irrigation of the P;roperty and the POA Property. The BOARD shall be deemed to be in possession and control of the Reclaimed Water until it shall have been delivered to the RECIPIENT at the Point of Delivery. After.such~delivery, the RECIPIENT shall be deemed to be in possession and control thereo f . 1.7 The RECIPIENT agrees to maintain all Federal, State and governmental permits issued to it and necessary to allow it to 4-9-97 Reuse/Quail.rdg/restatement.amd 2 9 receive and utilize the Reclaimed Water pursuant to the terms of this Agreement. 1.8 The right of the RECIPIENT to sell, transfer or encumber the Property .in areas irrigated with the Reclaimed Water shall not be res tr icted by this Agreement. This Agreement shall run with the land so long as the use of a major portion of the Property shall continue to be for golf Course and related purposes. Any subsequent party in interest to such golf course or courses shall be obligated to receive and pay for Reclaimed Water under the same terms and conditions of this Agreement, unless modified by mutual consent of the BOARD and the buyer or tranSferee. 1.9 METER. The design and construction of. the metering facility shall be the responsibility of the BOARD and must be mutually approved in advance in writing by BOARD and RECIPIENT. The meter will be utilized to measure the amount of Reclaimed Water delivered by the BOARD to RECIPIENT and the BOARD shall operate, maintain, cause to be calibrated, and repair said meter. 1.10 CONSTRUCTION. Upon completion of the engineering design of the metering faCility, and the acceptance of Sante by both parties, the metering facility will be constructed by the BOARD and placed into service. 1.11 COSTS AND OPERATION. The BOARD shall bear the cost of constructing, Owning and maintaining the Recl.aimed Water meter and .related appurtenances and the lines interconnecting BOARD's system into the metering faCility, including all valves and appurtenances up to and including the discharge flanges of the valves immediately downstream of the meter. . The parties agree that the RECIPIENT shall have reasonable access to the metering faCility, to all. other Reclaimed Water meters, check valves, and any other appurtenances thereto, to verify flows, meter readings, meter calibrations, efficiency of the check valves, and any other perfonnance data necessary to the operations of the Interconn:ection faci.lity upon reasonable advance notice to ~ the Board. The ~metering device shall be tested and-.calibrated, at~.BOARD~s ,'expense, ,'tat::; ,leasti,t,;:> ..' once per 'year and repaired :;if.~xequil:ed. 'An.y~'eo:ors;.:in.meter:'.reading::,~ ,.~,. and any discrepancy in. meter results from a true' and correct measure of ReClaimed Water flow to RECIP!EN'r shall be. adjusted properr~ and retroactively to reflect the flow to RECIPIENT. Any . incorrect metering device shall be repaired forthwith by the BOARD. 1.12 . This agreement has been duly authoriz~d by all named parties. Pursuant to Section 3 (C) of the Interlocal Agreement dated December 26, 1974, between the City of Boynton Beach and the City of Delray Beach, this Agreement and all provisions thereof have been contractua11y approved by a majori.ty vote of each City Council as the act of each City, or, if Such approval has not 4-9-97 Reuse/Quail.rdg/restatement.amd 3 10 already been obtained, such approval will be obtained and certified to RECIPIENT before this Agreement shall become effective. SECTION 2. Definitions. The parties agree that in construing this Agreement, the following words, phrases and terms shall have the following meanings, unless the context requires otherwise: 2 . 1 "Agreement" means this Agreement between BOARD and RECIPIENT. 2.2 "FDEP" means the Florida Department of Environmental Protection, and its successors. 2.3 "Fiscal Year" means October 1 to September 30 of the following year. 2.4 "GPD" means gallons per day. 2.5 "Irrigation system" means those pump stations, lines, pipes, sprinkler heads, ponds and lakes, storage facilities, if applicable, and pertinent equipment that are located on RECIPIENT's property and used to store, spray and irrigate' with Reclaimed Water that has been treated. in accordance with all applicable governmental regulations and in. accordance wi th the terms and provisions of this Agreement. 2 . 6 "MGD" means million gallons per day. 2.7 "Point of delivery" means the point at the meter which divides the BOARD's wastewater facilities from the RECIPIENT's irrigation system, or as otherwise noted on engineering drawings approved by both parties. 2.8 "Reclaimed Water" means wastewater that has been treated in accordance with Section 3.4 of this Agreement. 2.9 "Reclaimed Water Disposal Facilities n means those facilities necessary for the. storage, .if.,applicablei transportation and dis:gosfil of wastewater' previously treated'-in;"-accordancewith applicable local, state and' federalstancliirds and limttation at the plant to the standard of Reclaimed Water. These factii ties include, but a~e not limited to, any Reclaimed .Water transmission facilities, irrigation systems and storage facilities, if applicable. 2.10 "Reclaimed Water Transmission Fac.ilit'ies" means the BOARD's facilities used to transmit Reclaimed Water. 2.11 "Storage Facilities" means those facilities which may be designed, permitted and constructed on the Property and the POA 4-9-97 Reuse/Quail. rdg/restatement. amd 4 Property, if applicable, or upon the BOARD's property, if applicable., and which are necessary to store and hold Reclaimed Water in a manner that complies with regulatory requirements. 11 2.12 "Wastewater" means the product received by the wastewater treatment facility for treatment. 2.13 "Wastewater Facilities" means the BOARD's plant located at 1801 North Congress Avenue, Delray Beach, Florida, and Reclaimed Water transmission facilities, including all interceptors, lines, pipes, meters, cOuplings, pumps, force mains, and appurtenant equipment necessary to treat and transmit the Reclaimed Water. SECTION 3. Grant of License and Easement. RECIPIENT hereby grants to BOARD an easement over the Property including a 15 foot utility easement to be mutually agreed upon and located in the apprOXLmate location depicted on Exhibit "C" attached hereto, to allow construction, operation, maintenance and .repair of the BOARD's Reclaimed Water transmission main to the point of delivery, and the right to transmit, deliver and dispose of Reclaimed Water through the irrigation system and storage faCility, if applicable, on the Property in accordance with and subject to the following conditions: 3.1 Desi and installation of Certain Facilities. BOARD agrees to design, permi t, install and operate improvements and additions at its existing wastewater treatment plant, and the BOARD's Reclaimed Water transmission facilities, and to Penult effluent disposal facilities in order to provide Reclaimed Water at the point of delive.x:y. RECIPIENT agrees to deSign, permit, install and operate, at its sole expense, any storage faCility, if applicable, and the irrigation system on the P~operty and the POA Property up to the point of delivery. 3.2 Permits and A roval for the Irri ation S stem. Recipient shall be .responsible, in cooperation with Board, for obtaining and maintaining necessary governmental permits and approvals in;orderto install and operate the irrigation system: provideq,. .however,q :that .Board shall be responsible for obtaining and maintaining all permits for Reclaimed Water disposal faCilities. For all. wastewater facilities located on its side of the poiJ;lt of delivery, Board shall be solely responsible for obtai.n.i'ng, compiling, Providing .and complying-with all monitoring, sampling, testing, and, reporting requirements for the Reclaimed Water, which may be imposed by government law, rule, permit, or approval.. Recipient shall grant Board upon reasonable advance. notice to RECIPIENT access to the irrigation system as 'needed to assure continued compliance with applicable laws and regulations, inc~uding, but not limited to, any monitoring or testing reqUirements. 4-9-97 Reuse/Qua~1-rdg/restatement.amd 5 12 3.3 Delivery of Reclaimed Water. BOARD agrees to use its best efforts to make available and deliver in the volume and at the times requested, an annual volume of Reclaimed Water of at least 584,000,000 gallons (MGY), with maximum volume anyone day up to but not to exceed 3,690,000 (1,230,000 north connection and 2,460,000 south connection respectively) gallons per day (GPD), at a rate of 7,688 (2,563 north connection and 5,125 south connection respectively) gallons per minute (GPM), for use on the Property and the POA Property and, at its co~t, to connect the BOARD's Reclaimed Water transmission facilities to RECIPIENT's irrigation system at the point(s) of delivery agreed upon and as shown in Exhibit "C". Both RECIPIENT and BOARD recognize that water supply ,and demand will vary depending on a number of factors,. primarily climatic conditions. 3.4 Quality of Reclaimed Water. BOARD shall make available to RECIPIENT Reclaimed Water of a quality consistent with the requirements of "public access" treatment levels as set forth in Chapter 62-610, Florida Administrative Code, or its successor Code provisions, or of a quality consistent with more stringent requirements that may be imposed by any governmental agency having jurisdiction and legal authority. In recognition of the need to supply Reclaimed Water, the BOARD shall also be required to comply with effluent limitations set forth in Exhibit "0". All Reclaimed Water made available by BOARD under this Agreement shall ( at a minimum, have been treated by advanced treatment methods to remove harmful levels of bacteria, viruses, and other constituents or pollutants which could constitute a danger to human health, and" in accordance with all applicable federal, state and local laws, rules, regulations, policies, ordinances, resolutions, orders and permits and the requirements of Exhibit "D". BOARD shall provide continuous monitoring of chlorine and turbidity, as well as other required ground and surface water quality sampling and monitoring of Reclaimed Water as required by local, state and federal regulations and by Exhibit "0". BOARD agrees to divert away as expeditiously as possible, from the irrigation system, any Reclaimed Water which does not comply with the terms and conditions of this Agreement or which does not meet the applicable state, ,f~?eral-or local laws and regulations and.to promptly and fully notify RECIPIENT of such action. Copies of all- test results shall be available to RECIPIENT upon request. <..., 3.5 Minimum Purchase of Reclaimed Water by RECIPIENT. Upon receipt of all necessary governmental permits and,,'approvals by all parties and completion of construction of wastewater facilities and continuing for so long as BOARD complies with the requirements set forth ~n this Agreement, RECIPIENT has an obligation to pay for at least 440,000,000 million gallons annually of Reclaimed Water for spray irrigation on the Property and the POA Property, subject to condi tions as set forth in Section 3. 3 of this Agreement. 4-9-97 Reuse/Quail.rdg/restatement.amd 6 13 Notwithstanding anything to the contrary, Recipient shall not he obligated to accept delivery of or pay for Reclaimed Water which does not comply with the terms and conditions of this agreement. Such exception to RECIPIENT'S obligation to accept delivery of such Reclaimed Water by reason of the Board's failure to meet the water quality standards required in this Agreement shall relieve RECIPIENT of its obligation to pay BOARD for the minimum annual volume set forth above at the rates determined pursuant to Paragraph 5 below only to the extent that the BOARD shall not have made available to RECIPIENT such annual minimum volume of Reclaimed Water meeting the requirements of this Agreement through the completion of the 'then current fiscal year. Recipient shall not transfer, the water provided by Board to any third party for use off of the Recipient's or the POA Property. Notwi thstanding the foregoing, the minimum purchases as above described shall be broken down into two (2) phases: a. Phase I - for the irrigation of the Property (the golf courses) the RECIPIENT obligation shaLl commence at the time and in the manner as specified in this Agreement with respect to 180,000,000 million gallons year (MGY). b. Phase I~ - for the irrigation of the Property and the POA Property the minimum obligations as described above shall be increased to 440,000,000 million gallons per year (MGY) upon connection of the supply lines from the RECIPIENT system to the POA's delivery system, provided that such connection and increase in the obligation shall occur not later than six months (6) fOllowing the delivery of Reclaimed Water for Phase I, above. 3. 6 RECIPIENT shall be responsible for all maintenance of water and its irrigation system on RECIPIENTS side of the point(S) of delivery. 3.7 Nothing in this Agreement shall be construed to g-tve RECIPIENT any right to the exclusive receipt of BOARD's Reclaimed Water supply. ". 3.8' The BOARD agrees 'that it will not enter into contracts with other recipients of Reclaimed Water for more than its daily SUpply.::gapaci ty as the same exists from time to time. . SECTION 4. Term and Fees 4.. 1 Term. The Easement and this Agreement shall be in effect for a period of twenty (20) years commencing on the date of execution of this Agreement. The term' of the Easement and this Agreement shall be automatically extended for successive periods of ten (10) years each, upon the same terms and conditions as herein 4-9-97 Reuse/Quail.rdg/restatement.amd 7 '-4 provided, unless either party hereto notifies the other by certified mail at least three years prior to the expiration of the initial term of this Agreement or any renewal thereof, that this Agreement shall not be so extended. 4.2 Payment of Fees. In return for and in consideration of BOARD's construction of facilities and delivery of Reclaimed Water, RECIPIENT agrees to pay BOARD a one-time connection fee of Six Thousand Five Hundred Dollars ($6,500.00) for the north connection, and Nine Thousand Dollars ($9,000.00) for the south connection, and a volume charge of 20e for each 1,000 gallons of Reclaimed Water used (the "Volume Charge"), but on an annual basis not less than the above rate times the minimum quantity RECIPIENT has agreed to purchase under Section 3.5, together with a storage charge equal to 8e (the "Storage Charge") for each 1,000 gallons of Reclaimed Water the Volume Charge for which is paid for by RECIPIENT, as provided above. Such Storage Charge shall remain constant and shall not be adjusted during the term of this Agreement or any extension hereof. Payment of the connection fee shall be in one lump sum no later than the commencement of construction of the modification to the BOARD's wastewater facilities for the treatment and production of Reclaimed Water. The Volume Charge shall remain constant until the expiration of the third ( 3 ) fiscal year from the commencement of pumping (provided that if less than six (6) months expires between the time BOARD commences or makes available delivery of Reclaimed Water and the end of the first fiscal year, such first year shall not count as the. first fiscal year), after which the price will ~be redetermined as provided in Section 5. The BOARD shall render billings. to RECIPIENT for the volume charge on a monthly basis for such applicable charg.es on the basis of tn-e greater of the actual Reclaimed Water delivered or the volume charge for 1/12th of the minimum guaranteed annual volume agreed to be accepted by RECIPIENT pursuant to Section 3.5 above; provided that RECIPIENT shall pay no more, on. a fiscal year basis,. than ( i) such minimum annual guaranteed volume charge or (ii) charges for Reclaimed Water actually accepted during_the fiscal year, whichever is more. . , 4 .3' In the event the . BOARD shall not be. able to deliver ReclaImed Water in the m2nimum volume agreed to in Section 3.5 of this Agreement, as a result of its inability to do so and through no actIon or inaction on the part of the RECIPIENT, the RECIPIENT shall be entitled to a credit for such shortage in the minimum agreed to volume (by a proportionate reduction). SECTION 5. Future Adjustment of Price of Reclaimed Water. The Volume Charge shall be adjusted after the first three (3 ) fiscal years as aforesaid upward or downward based on one~half (!) of the year-to-year change in the . actual operating costs of producing, metering and delivering Reclaimed Water from effluent 4-9-97 Reuse/Quail:rdg/restatement.amd 8 and transmitting it to the point of delivery for the RECIPIENT as it relates to the preceding year's Volume Charge, however, sUch Volume Charge shall never'be less than 20e per thousand gallons nor shall an increase be applied if the actual operating costs shal~ be less than said 20e per thousand gallons. The first such adjustment shall Occur effective the first day of the fourth fiscal year fol~owing the initia~ de~ivery of Reclaimed Water to RECIPIENT and sha~l reflect one-half (!) the relative increase or decrease in actnal operating costs incurred by tbe BOARD during the second fiscal year of delivery of Reclaimed Water to RECIPIENT as compared to the third fiscal year and for each subsequent year thereafter as compared to the previous year. The actual operating cost and change therein shall be the basis for determining the index for making the adjustments in the VOlume Charge. Actua~ operating costs ("Actual Operating Costs ") shall be determined in conformity with generally accepted. acConnting princip~es consistently applied, except the depreciation of plant and equipment and any other provision for capital recovery, inc~nding interest on ~ongterm debt, shall not be included as operating costs, as such costs are properly allocable to wastewater Customers. Any increase or decrease in the Volume Charge shall be determined as Soon as reasonably practicable and Shall be effective retroactive to the scheduled date of adjustment and a sum due to the BOARD as a result of the retroactive effect of snch adjustment Or the credit due the RECIPIENT, if appliCable, shall be reflected in the next billings regularly submitted by BOARD to RECIPIENT as provided in Subparagraph 5.4.,,< 5.1 BOARD personnel shall establish, or cause to be establiShed, and maintain an accounting system in which Such current operating costs are recorded monthly in separate accounts from sewage processing accounts. Costs sha~~ be, reCOgnized on a first-in first-out basis. The BOARD personnel shal~ prepare and preserve any studies re~ating to the a~~ocation of operating COSts on other than an actually incurred basis. By way of example, . the parties' agree that a~~ operating and maintenance costs of ~abor, chemica~s and power, permits, regu~atory requirements, ~ega1, engineering, administration, testing, meter Calibration and contract, .services may be 'allocated based' on ,appropriate 'data or studies.' Such current, operating costs sha~~ be recOrded on a consistent basis 'from month to month and year to year, and the tota~ 1i,!r each fisca~ year shall be used to ca~cn~ate a cost per thousarid ga~lons of Rec~aimed Water de~ivered beginning with the second fiscal year after the plant starts to deliver Reclaimed Water to RECIPIENT. 5.2 By way of examp~e, if delivery begins on October 6,~996, the third fiscal year thereafter WOU~d be October 1, 1998 to September 30, 1999. Assume that the actual cost of producing ReClaimed Water for the fiscal year October 1, 1991 through 4-9-97 Reuse/Quail-rdg/restatement_amd 9 15 1 r~ September 30, 1998 was. 216. Further, assume that the Actual Operating Cost of producing and delivering Reclaimed Water to RECIPIENT during the second fiscal year to the end of the third fiscal year (October 1, 1997, through September 30, 1999) increased from 216 per thousand gallons to 236 per thousand gallons. The index for increase would be calculated by dividing the base cost of 21e per thousand gallons into one-half (!) the 26 increase in cost, resulting in an increase of 4.76% to the previous years' Volume Charge of20e per thousand gallons for the fourth fiscal year, equal to 20.956 per thousand gallons (! x 2 = 1 7 216 = .0476, then 20e x 1.0476 = 20.956). 5.3 As soon as reasonably practical, after each fiscal year for which the contract price is subject to adjustment , the BOARD shall prepare a statement showing in reasonable detail the actual operating costs to produce Reclaimed Water from effluent for the latest two fiscal years. For each such year, the statement shall also show (1) the number of gallons in thousands of Reclaimed Water delivered to Reclaimed Water users, (2) the cost per thousand gallons of Reclaimed Water calculated by dividing such operating costs by such gallons, (3) the calculation of the ratio of change in cost per thousand gallons from the earlier year to the later year, and (4) the calculation of the adjusted price for the later year. This statement shall be deemed to be the responsibility of the BOARD, and the BOARD's Executive Director shall attest in wri ting to the propriety of the costs and calculations shown thereon. 5 . 4 By January 15 of each year ,the BOARD'S Executive Director shall submit to RECIPIENT the supplemental statement set forth in the preceding paragraph, together~with the attestation thereto by the BOARD. At the same time, t.he BOARDS Executive Director shall submit to RECIPIENT a bill or credit showing (l)the amount paid by the RECIPIENT for Reclaimed Water delivered in the current fiscal year, (2) the amount payable for Reclaimed Water delivered in the current fiscal year based on the adjusted price for the year as set fort~ above, and (3)the difference. Any such difference shall be either paid promptly by the RECIPIENT, or shown~ as a credit in the next bi11ing to the RECIPIENT. ~.5 For billing purposes only prior to the determination of actuaf costs. for adjusting the Volume Charge, during each year subject to price adjustment, the BOARD may use a tentative price per thousand gallons based on using budgeted costs for the current year in the price. adjustment calculation set forth above~ 5.6 RECIPIENT, at its own expense, has the option of examining the. financial statements, general books and related records r and production records of the BOARD. 4-9-97 Reuse/Quail.rdg/restaternent.amd 10 17 5.7 Notwithstanding the above provisions, the price paid by the RECIPIENT for Reclaimed Water shall. be adjusted downward in the event the BOARD offers Reclaimed. Water to any other non- governmental customer ( s ) upon substantially similar terms and conditions for the same use of the Reclaimed Water at a lower charge than RECIPIENT is or will be paying under this Section 5. Such downward adjustment shall be made to guarantee RECIPIENT that no other user of Reclaimed Water for similar purposes shall receive a more favorable charge than will also be ,given to RECIPIENT under similar circumstances. 5.8 To the extent that the BOARD receives governmental or environmental noncapital improvement subsidies which are provided to the BOARD for encouraging wastewater reuse and which are intended to be applied pursuant to the terms of such grant or subsidy to the operational costs of the Reclaimed Water faCility, as opposed to capital improvements or eXpansion of such Reclaimed Water facility, the BOARD will' apply such funds, to the extent allowed, to its Reclaimed Water facility operating costs. 5.9 The parties to this Agreement agree and recognize that RECIPIENT is under no legal or other obligation to enter into this Agreement for reuse of wastewater. RECIPIENT currently has operating perinitsfrom FDEP and the Water Management District to pump surface and ground water for all RECIPIENT'S irrigation needs and RECIPIENT'S costs to pwnp this surface and ground water is substantially less than the charges RECIPIENT will pay for Reclaimed Water under this Agreement. RECIPIENT'S only consideration and motivation to enter into this Agreement is to insure sufficient irrigation water by receiving its full allocation of Reclaimed Water on demand in accordance with the rate and delivery conditions set forth in this Agreement, free from adverse erivironmentiil or climatic impact -. RECIPIENT has determined that the benefits of this Agreement are only marginally economically feasible. Therefore, if as a result of any action by the BOARD, the City of Delray Beach or the City of Boynton Beach, RECIPIENT would be required to pay charges in eXcess of those established under Section 5 r. . then RECIPIENT shall 'have ....the option of cancel'.ing this Agreement upon sixty (60) days advance written notice to 'the BOARD. SECTION-' .6. Inspect:ion. BOARD shall have the right to enter RECIP lENT's Property and the POA Property, upon proper identification and at any reasonable time, in order to inspect the irrigation system as may be necessary or desi;r:-able ,; 'for the operation, safety, protection, or preservation thereof, to determine compliance with any law, order or regulation of any governmental authority having jurisdiction, and for sampling at any moni toring wells located on the Property and the POA Property. RECIPIENT shall have the right to enter the BOARD's plant and 4-9-97 Reuse/Quail.rdglrestatement.amd 11 I f~ properties and the right of access to its wastewater facilities and records, at any reasonable time, for the purpose of determining whether the BOARD is in compliance with this Agreement. SECTION 7. Assignments. This Agreement can be assigned by RECIPIENT only with the prior written approval of BOARD, but such approval shall not be unreasonably withheld, provided the assignee shall assume this Agreement and shall demonstrate to BOARD its financial ability to comply with the provisions hereof. SECTION 8. Notices; Proper Form. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delLvered when (1) hand delivered to the official hereinafter designated, (2) upon receipt of such notice when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to a party at the address set forth opposite the party' name below, or at such other'address as the party shall have specified by written notice to the other party delivered in accordance herewith: BOARD SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD Executive Director 1801 North Congress Avenue Delray Beach~ FL 33445 RECIPIENT QUAIL RIDGE COUNTRY CLUB C/O Club Manager 3715 Golf Road BOYnton Beach, FL 33436 COPY TO: BOYnton Beach City Manager P.O. Box 310 Boynton Beach, FL 33425-0310 COPY TO: Delray Beach City Manager 100 N.W. 1st Avenue Delray Beach, FL 33444 ., ~ COPY TO: Robert W. Federspiel, Esq. 501 East Atlantic Avenue Delray Beach, FL 33483 SECTION 9. Notices; Default. Each of the parties hereto shall give 4-9-97 Reuse/Quai1.rdg/restatement.amd 12 the other party written notice of any defaults hereunder and shall allow the defaulting parLy 30 days from the daLe of receipL to cUre such defaults, except failure to deliver water on demand. 19 SECTION 10. Default by Either Party. If any party hereLo fails Lo perform or comply with any of the conditions of this Agreement, and if the nonperformance shall continue for a period of thirty (30 ) days after the written notice tbereof to the non-performing party, Or if the performance cannot be reasonably completed within the 3D-day period, or if the nonperforming party does not in good faith commence performance within the 3D-day period and does not diligently proceed to complete performance, the non-performing party shall be in default or breach of this Agreement. SECTION 11. Indemnification. In the event RECIPIENT shall fail to comply with any reuse water rule or regulation of any Federal, State or County or local agencies, except. BOARD, or violate any permit granted with regard to the use of the irrigation system on the RECIPIENT's Property and the POA Property, then RECIPIENT shall indemnify the BOARD, its officers, governing board, employees and agents against all claims, demands, causes of actions, suits, jUdgments, fines, penalties, or losses, including all costs suffered or incurred by the BOARD by reason of such failure. In the eVent the BOARD shall fail to comply with any rule, regulation, order of any Federal, State or County Or local agency, or fail to deliver water meeting the guality standards prOVided by this Agreement, then the BOARD shall, to the extent aHowed by law; indemnify the RECIPIENT, its Officers, board of directors, employees and agents against all claims, demands, causes of actions, suits, jUdgments, penalties, fines, or losses Suffered or incurred by the RECIPIENT as reason of Such failure. SECTION 12. Remedies of Default. If either party hereto shaH be in default hereunder as set forth in Section 10, then the other party shall have the fOllowing remedy, bring suit for the breach which has occurred without affecting the obligations of the party to perform the balance of the Agreement. The parties shall have the right not - only to - injunctive relief, but also to .reCover any damages wh.lch a Party may ii1cur as a reSult of the breach of ,this Agreement by the other party. The Parties further a!Jrj>e that any litigation shall be brought in Palm Beach County, -Florida, only, and th~iparties agree that the proper venue for any such action WOuld only be in Palm Beach County, Florida; The parties further waive any right to Jury trial they may have in any action among them involving this Agreement or the aHeged breach theniof. SECTION 13. Disclaimers of Third Party Beneficiaries. This Agreement is solely for the benefit of the formal parties hereto and no right or cause of action shall aCcrue upon Or by reason hereof or to or from or for the benefit of any third party not a 4-9-97 Reuse/QuaiL.rdg/restatement.amd 13 formal party hereto. SECTION 14. Severability. If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other parts of this Agreement. SECTION 15". Applicable Law. This Agreement and the provisions contained herein shall be construed, controlled and interpreted according to the laws of the State of Florida. SECTION.16. Entire Agreement. This agreement contains the entire Agreement between the parties hereto with respect to this transaction and supersedes all prior negotiations and all prior written or oral understandings. SECTION 17. Amendments. This Agreement. may only be amended, supplemented or discharged by an instrument in writ~ng signed by all parties hereto. SECTION 18. Recordation. This Agreement or a mutually agreeable memorandum thereof will be recorded in the public records of Palm Beach County, FlDrida. SECTION 19. Extent of Agreement. Each party shall advise the other party, in writing,. as to the status of its construction document preparation and construction of associated improvements on '.a monthly basis to ensure that both parties' activities are progressing with reasonable diligence. SECTION 20. Compl.etion Date. The Board agrees to use its. best efforts have its Reclaimed Water facilities completed and available for use for RECIPIENT ?rrd RECIPIENT agrees to use its best efforts to have its Irrigation System complete and to accept delivery of Reclaimed Water from the BOARD on or before November 1, 1997, subject to matters beyond the reasonable control of either party. SECTION 21. Cross-Connection. RECIPIENT desires to connect its south course irrigation system. with its north course irrigation system, which will require crossing the Woolbright Road and L-26 canal_,~ In that the BOARD will also have to cross both rights-of- way tot connect its reclaimed water transmission facilities to RECIPIENT's irrigation system, the BOARD agrees to obtain a price from its Contractor for the installation of. such pipe for RECIPIENT. The RECIPIENT shall then be authorized to either contract directly with the BOARD's Contractor for such pipe installation or to obtain its own contractor. 4-9-97 Reuse/Quail.rdg/restatement.amd 14 21 SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD . 1 / .. i. By: ti-LLz..-~Le j 1. / CL<J-L'.CAJ_<2..k., - cIJfi~an :J APPROVED AS TO FORM: //7/ ./? ';~ /./ / I. :~. . BoarcV Attorney I QUAIL RIDGE COUNTRY CLUB, INC. a~1 u:i t~, By: APPROZ. D BY: ///'/./..._.// - ~2-c::/, .>f~ D-( ;?"'L~ Ci~:t>Ofp~lra:y/13each, Mayor APPROVED BY:/ / . / ./ / /V j' JJ2 //7 /?r- Beach, Mayor "" 4-9-97 Reuse/Quai1.rdg/restatement.amd 15 EXHIBIT B OPERA TIN G RESTRJ as Recipient shalJmaintaln compliance with the following operating restrictions for protecting humaB health, welfare and safety, and the environment l'\. J. The public shall be notified of the use of reclaimed Wdter by posting advisory signs, notes on score cards or other methods in accordance with Chapter ]7..{)]0.468 FAC. 2. Direct connections between the reclaimed water system and irrigation water system shall not be allowed without the use of appropriate backflow prevention devices. 3. No cross-connection to potable water systems shall be allowed. 4. All reclaimed water valves and outlets sh~l be appropriately color coded and labeled in accordance mth Chapter ]7:-6]0.470 FACto warn public and employees that the water is not intended for drinking. 5. Setback distances to potable water supply wells and the use of low trajectory Dazzles shall be in accordance with Chapter 17-6]0.471 FAC 6. The use of reclaimed water shall be consistent with all applicable federal, Sl.ate, and local Jaws and reQUlations. A:.:n4n::HlBIT.1l Exhibit B January J995 P"rc 1 of 1 I a 11 o "- I/), c: " - " ~] II Q ~ 1 c:- o It. :u o u q. '0 -~ c c '_ c o 0 0 "" ;~ ; ... t: 2 ~. " CII -n o r'S .. '" '3 <5 .5 ~ d ... ~ ~ .!. 11' .Jl ,(..Dl/HI't EXHIBIT 0 Enclosure Board sh(ill monitor the reclaimed water for the follo\\"ing parameters and agrees to di\'en reclaimed waler \\hich exceeds the specified limits. Parameter Sampling Frequency Limitll) Turbid iry Continuous 2 NTU Chlorine Residual Continuous I (minimum) C~oride Continuous 350 CBOD(7) Daily 2D T5501 Daily 5 pH Hourly 6 to 7.5 units'~) 7.8 unitsl61 Aluminum Annual 1.0 Arsenic Annual 0.10 Beryllium Annual 0.10 Boron Annual 0.50 Cadmium Annual O.OJ Chrr,miunl Annual D.I Coball Annual 0.05 Copper Annual 0.2 Fluoride Annual LO Iron Annual 5.0 Lead Annual 5.0 Lithium Annual 2.5 Manganese Annual 0.2 Molybdenium Annual 0.005 Nickel Annual 0.02 Selenium Annual 0.02 Vanadium l Annual 0.10 Zinc i Annual 2,0 Bicafbomne (as CaCO-) Annual 120 .>. (4) Calcium Annual Magnesium Annual (4) Sodium Annual (4) Sodium Adsorotion Ratio Annual 6 units .(1) Q) (3) (4) (5) (6) Maximum concentration eXPressedinmgIL unless noted. Carbonaceous Biochemical Oxygen Demand (CBOD). Total Suspended Solids (TSS). . Infonnation used in calculation of Sodium Adsorption Ratio (SAR). Daily a\'erage 2-Hour duration \\,:'.757~\EXHIBll.D Exhibit D January '995 Pa~ I of I AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD AND QUAIL ~IDGE COUNTRY CLUB CONCERNING DELIVERY AND ACCEPTANCE OF RECLAIMED WATER THIS AGREEMENT is made and entered into on this Ig!~ day of ~j.,.,""lj4_L<-l 1996, by and between South Central Regtonal Wastewatev Treatment and Dtsposal Board, a muntctpal corporaUon created pursuant to the laws of the State of Florida (hereinafter BOARD), and Quail Ridge Country Club, (hereinafter RECIPIENT). Accordingly, for and in consideration contained herein, mutual understandings contained herein, and other consideration, sufficiency of which is hereby acknowledged the parties covenant and agree as follows: . of the recitals and agreements the receipt and by the parties, SECTION 1. Recil:als. The below recitals are true and correct and form a material part of this Agreement. 1.1 The parties hereto represent to one another that each has the full Power and authority to enter into this Agreement and to Carry out their respective obligations thereunder. The BOARD is composed of the Cities of Boynton Beach and Delray Beach (the "Cities"), pursuant to an Interlocal Agreement entered into pursuant to Chapter 163, Florida Statutes. 1.2 The Parties recognlze that reuse of Reclaimed Water is in the public interest, as it recaptures an otherwise wasted and unUsed water resource. The BOARD owns and operates wastewater faciliUes which it proposes to~upgrade to produce ReClaimed Water Suitable for irrigation of areas, Such as golf courses, parks, school grounds and cemeteries, and RECIPIENT is willing to accept Such Reclaimed Water for irrigation purposes in the public interest. 1.3 In a nonna-l year, RECIPIENTS will irrigate apprpximately 240 .days and most of RECIPIENT'S daily requirements will be needed during approximately 12 hours co_encing about sundown. BOARD agrees to USe its best effoctsto SUpply Reclaimed Water on demand to RECIPIENT up to 1" ,i-, the 'volume and at the charge set forth in this Agreement. RECIPIENT has valuable golf courses that require access to such Reclaimed Water and has expended Substantial money and effort and has foregone other avenues to meet its irrigation requtrements in reliance on this Agreement. The BOARD is not required to Upgrade its waste~ater system to prOduce Reclaimed Water but is doing so tn reliance upon the RECIPIENT entering into this Agreement. 12-5-95 RRUSR/QUAILRIDGE/DRLVRRy.AGR 1 1.4 The RECIPIENT owns and controls land which is described in Exhibit nA" (the >>Property"), attached and made a part hereof by reference. 1.5 RECIPIENT agrees to: (a) irrigate the Property using Reclaimed Water; (b) maintain the storage facility, if applicable, ponds and lakes, if applicable, pumps and irrigation system to be located on the Property from the point of delivery; and (C) upgrade its irrigation system when reasonable and economical to utilize the volume of Reclaimed Water accepted from. the BOARD and as required to meet any federal, state, or local requirements, (d) maintain compliance with the operating restrictions for protecting human health and the environment attached thereto as Exhibit "B". 1.6 Recipient shall accept tpe Reclaimed Water delivered by the BOARD and use it for irrigation of the Property. The BOARD shall be deemed to be in possession and control of the Reclaimed Water until it shall have been delivered to the RECIPIENT at the Point of Delivery. After such dglivery, the RECIPIENT shall be deemed to be in possession and contro~ the reo f . -1.7 The RECIPIENT agrees to maintain all Federal, State and governmenta~ permits issued to it and necessary to allow it ,to receive and utili~e the R~claimed Water pursuant to the terms of this Agreement. 1.8 The right of the RECIPIENT to sell, transfer or encUmber the Property in areas irrigated with the Reclaimed Water shall not be restricted by this Agreement. This Agreement shall run with the land so long as the use of a major portion of the Property shall ~ontinue to be for golf course and related purposes. Any.subsequent party in interest to such golf course or Courses shall be obligated to receive and pay for Reclaimed Water under the same terms and conditions of this Agreement, unless modified by mutual consent of the BOARD and the buyer or transferee. '. )..9 METER. The design and construction of the metering facility sha~l be the responsibility of the BOARD and must be mutua~ly approved in advance in writing by BOARD and ",RECIPIENT. The meter will be utilized to measure the amount of '~Reclaimed Water delivered by the BOARD to RECIPIENT and the BOARD shall operate, maintain, cause to be calibrated, and repair said meter. 1.10 CONSTRUCTION. Upon completion of the engineering design of the metering facility, and the acceptance of same by both parties, the metering facility will be constructed by the BOARD and placed into service. 12-5-95 REUSRIQUAILRIDGR/DRLVERy.AGR 2 1.11 COSTS AND OPERATION. The BOARD shall bear the cost of constructing, owning and maintaining the Reclaimed Water meter and related appurtenances and the lines interconnec.ting BOARD's system into the meter ing f ac Hi ty , including all valves and appurtenances up to and including the discharge flanges of the valves immediately downstream of the meter. The parties agree that the RECIPIENT shall have reasonable aCcess to the metering facility, to all other Reclaimed Water meters, check valves, and any Other appurtenances thereto, to verify flows, meter readings, meter calibrations, efficiency of the check valves, and any other performance data necessary to the operations of the Interconnection facility upon reasonable advance notice to the Board. The metering device shall be tested and calibrated, at BOARD's expense, at least once per year and repaired if required. Any errors in meter reading and any discrepancy in meter results from a true and correct measure of Reclaimed Water flow to RECIPIENT shall be adjusted properly and retroactively to reflect the flow to RECIPIENT. Any incorrect metering device shall be repaired forthwi th by the BOARD. . 1.12 1~is agreement has been duly authorized by all named parties. pnrsuant to Section 3 (C) of the Interlocal Agreement dated December 26, 1974, between the City of Boynton Beach and the City of Delray Beach, this Agreement and all provisions thereof have been contractually approved by a majority vote of each City Council as t~ act of each Ci~, or, . if such approval has not already been Obtained, such approval will be obtainei:l and certified to RECIPIENT before this Agreement shall become effective. SECTION 2. Definitions. The parties agree that in construing this Agreement, the following words, phrases and terms shall have the fOllowing meanings, unless the context requires otherwise: 2 . I "Agreement" . means this Agreement between BOARD and RECIPIENT. . . 2 . 2. "FDEP" means 1;he Florida Department of Environmental Prot~ctfonT and its SUccessors. 2.3 "Fiscal Year" means October I to September 30 of the following year. 2.4 "GPn" means gallons per day. 2 . 5 "Irrigation system" means those Pump stations, Hnes, pipes, sprinkler heads, ponds. and lakes; storage facilities, if appliCable, and pertinent equipment that. are located on RECIPIENT's property. and used to store, spray and irrigate with Reclaimed Water that has been treated in accordance with 12-5-95 REUSBIQUAILRIDGE/DELVERY0 AGR 3 all applicable governmental regulations and in accordance with the terms and provisions of this Agreement. 2.6 "MGD" means million gallons per day. 2.7 "Point of delivery" means l::he point at the meter which divides the BOARD's wastewater facilities from the RECIPIENT's irrigation system, or as otherwise noted on engineering drawings approved by both parties. 2.8 "Reclaimed Water" means wastewater that has been treated in accordance with Section 3.4 of this Agreement. 2.9 "Reclaimed Water Disposal Facilities" means those facilities necessary for the storage, if applicable, transportation and disposal of wastewater previously treated in accordance with applicable local, state and federal standards and limitation at the plant to the standard of Reclaimed Water. These facilities include, but are not limited to, any Reclaimed Water transmission' facilities, irrigation systems and storage facilities, if applicable. 2.10 "Reclaimed Water Transmission Facilities" means the BOARD's facilities used to transmit Reclaimed Water. 2.11 "Storage Facilities" means those facilities which may be designed, permitted and constructed on the Property, if applicable, or upon the BOARD's property; if applicable, and which are necessary to store and hold Reclaimed Water in' a manner that complies with regulatory requirements. 2 . 12 "Wastewater" means the product received by the .wastewater treatment facility for treatment. 2.13 "Wastewater Facilities" means the BOARD's plant located at 1801 North Congress Avenue, Delray Beach, Florida, and Reclaimed Water transmission facilities, including all interceptors, lines, pipes, meters, couplings, pumps, force mains, and appurtenant equipment necessary to treat and transmit the Reclaimed Water. SECTION 3. Grant of License and Easement. RECIPIENT hereby grants to BOARD an easement over the Property, including a 15 foqt utility easement to be mutually agreed upon and located in the approximate location depicted on Exhibit "C" attached hereto, to allow construction, operation, maintenance and repair of the BOARD's Reclaimed Water transmission main to the point of delivery, and the righ~ to transmit, deliver and dispose of Reclaimed Water through the irrigation system and storage facility, if applicable, on the Property in accordance with and subject to the following conditions: 12-5-95 REUSEIQUAILRIDGR/DELVERY.AGR 4 3.1 Desi n and installation of Certain Facilities. BOARD agrees to design, permit, install and operate improvements and additions at its existing wastewater treatment plant, and the BOARD's Reclaimed Water transmission facilities, and to Permit effluent disposal facilities in order to provide Reclaimed Water at the point of delivery. RECIPIENT agrees to design, permit, install and operate, at its sole expense, any storage facility, if applicable, and the irrigation system on the Property up to the point of delivery. :?2 Permits and Approval for the Irriqation System. Recipient shall be responsible, in cooperation with Board, for obtaining and maintaining necessary governmental permits and approvals in order to install and operate the irrigation system: provided, however, that Board shall be responsible for obtaining and maintaining all permits for ReClaimed Water disposal facilities. For all wastewater facilities located on its ~ide of the point of delivery, Board shall be soiely responsible for obtaining, compiling, providing and complying with all monitoring, sampling, testing, and reporting requirements for the Reclaimed Water, which may be imposed by government law, rule, permit, or approval. Recipient shall grant Board upon reasonable advance notice to RECIPIENT access to the irrigation system as needed to assure continued compliance with applicable laws and regulations, including, but not limited to, any monitoring or testing requirements. 3.3 Delivery of Reclaimed Water. BOARD agrees to use its best efforts to make available and deliver in the volume and at the times requested, an annual volume of Reclaimed Water or at least 224 million gallons (MGY), with maximum volume any one day up to but not to exceed 1,600,000 (700,000 and 900,000 f.or north and south connections, respectively) gallons per day (GPD), at a rate of 3,333 (1,460 and 1,875 _for north and south connections, respectively) gallons per minute (GPM), for use on the Property and, at its cost, to. connect the BOARD's Reclaimed Water transmission facilities to RECIPIENT's irrigation system at the point(s) of delivery agreed upon and as shown in Exhibit "C". Both RECIPIENT and BOARD recognize that water supply and-demand will vary depending on a number of ~qctors, primarily climatic conditions. 3.4 Ouality of Reclaimed Water. BOARD shall make available to RECIPIENT Reclaimed Water of a quality consistent with the requirements of "public access" treatment levels as set forth in Chapter 62-610, Florida Administrative Code, or its successor Code proviSions, or of a quality consistent with more stringent requirements that may be 'imposed by any governmental agency having j~risdiction and legal authority. In recognition of the need to Supply Reclaimed Water, the BOARD shall also be required to comply with effluent limitations set forth in Exhibit "0". All Reclaimed Water 12-5-95 REUSEIQUAILRIDGR/DELVERY.AGR 5 made available by BOARD under this Agreement shall, at a minimum, have been treated by advanced treatment methods to remOVe harmful levels of bacteria, viruses, and other constituents or pollutants which could constitute a danger to human health, and in accordance with all applicable federal, state and local laws, rules, regulations, POlicies, ordinances, reso 1 utions , orders and permits and the requirements of Rxhibit "D", BOARD shall provide Continuous mpnitoring of chlorine and turbidity, as well as other required ground and surface water quality Sampling and monitoring of Reclaimed Water as reguired by local, state and federal regnlations and' by Exhibit "D", BOARD agrees to divert away as expeditiously as Possible, from the irrigation system, any Reclaimed Water which does not comply with the terms and conditions of this Agreement or which does not meet the applicable state, federal or local laws and regulations and to promptly and fully notify RECIPIENT of such action. Copies of all test results shall be available to RECIPIENT upon request, 3.5 Minimum Purchase of Recla.imed Water b RECIPIENT. Upon receipt of all necessary governmental permits and approvals by all parties and completion of construction of wastewater facilities and continuing for so long as. BOARD complies with the requirements set forth in this Agreement, RECIPIENT has an bbliga tion to pay for at 1 eas t ~ lllill1:on I Td "" l. '-' I gallons annually of Reclaimed Water for spray irrigation on ~./ the Property, subject to conditions as set forth in Section )Y'~ 3.3 of this, Agreement. NotWithstanding anything to. the "~'^ \:::, contrary, Reclplent shall not be obllgated to accept dellvery ~ of or pay for Reclaimed Water which does not comply with the terms and conditions of this agreement, Such exception to RECIPIENT'S obligation to accept delivery of Such ReClaimed Water by reason of the Board's failure.to meet the water quality standards required in this Agreement shall relieve RECIPIENT of its obligation to pay BOARD for the minimum annual volume set forth above at the rates determined pursuant to Paragraph 5 below only to the extent that the BOARD shall not have made available to RECIPIENT Such annual minimum volume of Reclaimed Water meeting the requirements of this Agreement through the completion of the then current fiscal year ."Recipient shall not transfer the water provided by Board to any third party or off of the Recipient's property whi~h is the subject of this agreement. 3.6 RECIPIENT shall be responsible for all maintenance of water and its irrigation system on RECIPIENTS side of the point(s) of ~elivery. 3.7 Nothi~g in this Agreement shall be construed to give RECIPIENT any right to the exclusive receipt of BOARD's ReClaimed Water SUPply. 12-5-95 .. REUSRIQOAILRIDGE/DRLVERy.AGR 6 3.8 The BOARD agrees that it will not enter into contracts with other recipients of Reclaimed Water for more than its daily snpply capacity as the same exists from time to time. SECTION 4. Term and Fees 4.1 Term. The Easement and this Agreement shall he in effect for-aperiod of twenty. (20) years cOllllllencing on the date of execution of this Agreement. The term of the Easement and this Agreement shall be antomatically extended for successive periods of ten (10) years. each, upon the Same terms and conditions as herein provided, unless either party hereto notifies the other by certified mail at least three years prior to the expiration of the initial term of this Agreement Or any renewal thereof, that this Agreement shall not be. so extended. 4.2 PaYment of Fees. In return for and in Consideration of BOARD's construction of facilities and delivery of Reclaimed Water; RECIPIENT agrees to pay BOARD a one-time connection fee of $8,600.00 ($4,300.00 each for north and south connections) and a volume charge of 20~ for each 1,000 gallons of Reclaimed Water used, (the "Volume Charge") but on an annnal basis not less than the above rate times the minimum quantity RECIPIENT has agreed to purchase under Sectiou 3.5 together with a storage charge equal to 8~ (the "Storage Charge) for each 1,000 gallons of Reclaimed Water, the Volume Charge for which is paid for by RECIPIENT, as provided above':' Such Storage Charge shall remain constant and shall not be adjusted during the tenn of this Agreement or any extension hereof. Payment of the connection fee shall be in one lump SUm no later than the commencement of construction of the modification to the BOARD's wastewater facilities for the treatment and prodnction of Reclaimed Water. The Volume Charge' shall remain Constant until the expiration of the third ( 3) fiscal year from the COllllllencement of pumping (prOvided that if less than six (6) months expires between the time BOARD commences or makes available delivery of Reclaimed Water and the end of the first fiscal year, Such first year shal~ .n9t count as the first fiscal year), after which the. price will be redetermined as prOvided in Section 5. The BOARD shall render billings to RECIPIENT for the volume charge on ~monthly basis for Such applicable charges on the basis of the greater of the actual Reclaimed Water delivered or the' volume charge for 1/12th of themininnrm guaranteed annual volume agreed to be accepted by RECIPIENT pursuant to Section 3.5 above; provided that RECIPIENT shall pay no more, on a fiscal year basis, than ( i) Such mininnrm annual guaranteed volume Charge or (ii)charges for Reclaimed Water actually accepted during the fiScal year, whichever is more. 12-5-95 REUSE/QUAILRIDGR/DRLVRRYoAGR 7 4.3 In the event the BOARD shall not be able to deliver Reclaimed Water in the minimum volume agreed to in Section 3.5 of this Agreement, as a result of its inability to do so and through no action or inaction on the part of the RECIPIENT, the RECIPIENT shall be entitled to a credit for such shortage in the minimum agreed to volume (by a proportionate reduction). SECTION 5. Future Adjustment of Price of Reclaimed Water. The Volume Charge shall be adjusted. after the first three (3) fiscal years as aforesaid upward or downward based on one-half (~) of the year-to-year change in the actual operating costs of producing, metering and delivering Reclaimed Water from effluent and transmitting it to the point of delivery for the REC;IPIENT as it relates to the preceding year's Volume Charge, however, such Volume Charge shall never be less than 20<: per thousand gallons nor shall an increase be applied if the actual operating costs shall be less than said 20<: per thousand gallons. The first such adjustment shall occur effective the first day of the fourth fiscal year following the initial delivery of Reclaimed Water to RECIPIENT and shall reflect one-half (1) the. relative increase or decrease in actual operating costs incurred Py the BOARD during the second fiscal year of delivery of Reclaimed Water to RECIPIENT as compared to the third fiscal year and for each subsequent year thereafter as compared to the previous year. The actual operating cost and change therein shall be the basis for determining the index for making the adjustments in the Volume Charge.. Actual operating costs ("Actual Operating Costs",") shall be determined in conformity with generally accepted accounting principles consistently applied, except the depreciation of plant and equ~pment and any other provision for capital recovery, including interest on long term debt, shall not be included as operating costs,: as such costs are properly allocable to wastewater customers. Any increase or decrease in the Volume Charge shall be determined as soon as reasonably practicable and shall be effective retroactive to. the scheduled date of adjustment and a sum due to the BOARD as a result of the retroactive effect of such adjustment or the credit due the ;RECIPIENT, if applicable, shall be refl~ted in the next billings regularly submitted by BOARD to RECIPIENT as provided in Subparagraph 5.4. ,:"". 5. 1 BOARD personnel shall establish, or cause to be established, and maintai.n an accounting system in which such current operating costs are recorded monthly in separate accounts from sewage processing accounts. Costs shall be recognized on a fi.rst-in first-out basis. The BOARD personnel shall prepare and preserve, any studies relating to the allocation of operating costs on other than an actually incurred basis. By way of example, the parties agree that all oPerating and maintenance costs of labor, chemicals and power, 12-5-95 RRUSR/QUAILRIDGE/OELVERY.AGR 8 permits, regulatoD, requir~neuts, legal, engineering, administration, testing, meter calibration and contract services may be allocated based on appropriate data Or studies. Such current operating costs shall be recorded on a consistent basis from month to month and year to year, and the total for each fiscal year shall be used to calculate a cost per thousand gallons of Reclaimed Water delivered beginning with the second fiscal year after the plant starts to deliver Reclaimed Water to RECIPIENT. 5.2 By way of example, if delivery begins on October 6, 1996, the third fiscal year thereafter would be October 1, 1998 to September 30, 1999. Assume that the actual cost of producing Reclaimed Water for the fiscal year October 1, 1997 through September 30, 1998 was 21~. Further, aSsume that the Actual Operating Cost of producing and delivering Reclaimed Water to RECIPIENT during the second fiscal year to the end of the third fiscal year (October 1, 1997, through September 30, 1999) increased from 2l~ per thousand gallons to 23~ per thousand gallons. The index for increase would be calculated by dividing the base cost of 21~ per thousand gallons into one-half {Il the 2~ increase in cost, resulting in an increase of 4.76% to the previous years' Volume Charge of. 20~ per thousand gallons for the fourth fiscal year, equal to 20.95~ per thousand gallons (i x 2 - 1 . 21~ - .0476, then 20~ x 1.0476 = 20.95C). 5.3 As soon as reasonably practical, after each fiscal year for which the contract Price is subject to adjustment. ,. the BOARD shall prepare a statement ShOWing in reasonable detail the actual operating costs to produce Reclaimed Water from effluent for the latest two fiscal years. For each Such year, the statement shall also show (I) the number of gallons in thousands of ReClaimed Water delivered .to Reclaimed Water users, (2) the Cost per thousand gallons of Reclaimed Water calculated by dividing such.operating costs by Such gallons, (3) the calculation of the ratio of change in cost per thousand gallons from the earlier year to the later year, and (4)the calculation of the adjusted price for the later year. This statement shall be- deemed to be the responsibility of the BOAR!;>, and the BOARD's ExeCutive Director shall attest in Writing' to the propriety of the costs and calCulations shown thereon. . 5.4 By January 15 of each year, the BOARD'S Executive Director shall submit to RECIPIENT the supplemental statement set forth in the preceding paragraph, together with the attestation thereto by the BOARD. At the same time, the BOARDS Executive Director shall submit to RECIPIENT a bill or credit ShOWing {l)the amount paid by the RECIPTENT for Reclaimed Water delivered in the current fiscal year, (2)the amount payable for Reclaimed Water delivered in the current 12-5-95 RRUSR/QUAILRIDGRIDBLVERY.AGR 9 fiscal year based on the adjusted price for the year as set forth above, and (3)the difference. Any such difference shall be either paid promptly by the RECIPIENT, or shown as a credit in the next billing to the RECIPIENT. 5.5 For billing purposes only prior to the determination of actual costs for adjusting the Volume Charge, during each year subject to price adjustment, the BOARD may use a tentative price per thousand gallons based on using budgeted costs for the current year in the price adjustment calculation set forth above. 5.6 RECIPIENT, at its own expense, has the option of examining the financial statements, general books and related records, and production records of the BOARD. 5.7 Notwithstanding the above provisions, the price paid by the RECIPIENT for Reclaimed Water shall be adjusted downward in the event the BOARD offers Reclaimed Water to any other non-governmental customer(s) upon substantially similar terms and conditions for the same use of the Reclaimed Water at a lower charge than RECIPIENT is or will be paying under this Section 5. Such downward adjustment shall be made to guarantee RECIPIENT that no other user of Reclaimed Water for similar purposes 'shall receive a more favorable charge than will also be given to RECIPIENT under similar circumstances. 5.B To the extent that the BOARD receives governmental or environmental noncapital improvement subsidies which a~e provided .to the BOARD for encouraging wastewater reuse and which are intended to be applied pursuant to the terms of such grant or subsidy to the operational costs of the Reclaimed Water facility, as opposed to capital improvements or expansion of such Reclaimed Water facility, the BOARD will apply such funds, to the extent allowed,. to its Reclaimed Water facility operating costs. 5.9 The parties to this Agreement agree and recognize that RECIPIENT is under no legal or other obligation to enter into this Agteement .:for reuse of wastewater. RECIPIENT currently has operating permits from FDEP and the Water Management District to pump surface and ground water for all RECIPIENT'S irrigation needs and RECIPIENT'S costs to pump thi,~ surface and ground water is substantially less than the charges RECIPIENT will pay for Reclaimed Water under this Agreement. RECIPIENT'S only consideration and motivation to enter into this Agreement is to insure sufficient irrigation water by receiving its full allocation of Reclaimed Water on demand in accordance with the rate and delivery conditions set forth in this Agreement, free from adverse environmental or climatic impact. RECIPIENT.has determined that the benefits of this Agreement are only marginally economically feasible. 12-5-95 REUSE/QUAILRIDGE!DELVERY.AGR 10 Therefore, if as a result of any action by the BOARD, the City of Delray Beach or the City of Boynton Beach, RECIPIENT would be reguired to pay charges in eXcess of those established under Section 5, then RECIPIENT shall have the option of canceling this Agreement upon sixty (60) days advance written notice to the BOARD. SECTION 6. Inspec~ion. BOARD shall have the right to enter RECIPIENT's property, upon proper identification and at any reasonable time, in order to inspect the irrigation system as may be necessary Or desirable for the operation, safety, protection, or preservation thereof, to determine compliance with any law, order or regulation of any governmental authority having jUriSdiction, and for sampling at any mOnitoring wells located on the property. RECIPIENT shall have the right to enter the BOARD's plant and properties and the right of access to its wastewater facilities and records, at any reasonable time, for the purpose of determining whether the BOARD is in compliance with this Agreement. SECTION 7. Assignments. This Agreement can be assigned by RECIPIENT only with the prior written approval of BOARD, but Such approval shall nOt be unreasonably withheld, provided the assignee shall assume this Agreement and shall demonstrate to BOARD its financial ability to Comply with the proviSions hereof. SECTION 8. Notices; Proper Form. Any notice required or allowed to be delivered hereunder sha~l be in writing aria shall be deemed to be delivered when (1) hand delivered to the official hereinafter deSignated, (2) upon receipt of such notice when deposited in the United State" mail, postage prepaid, certified mail, return receipt requested, addressed to a party at the address set forth opposite the party' name below, or at Such other address as the party shall have specified by written notice to the other party delivered in accordance herewith: BOARD ... SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD Executive Director 1801 North Congress Avenue Delray Beach, PL 33445 RECIPIENT QUAIL RIDGE COUNTRY CLUB C/O Club Manager 3715 Golf Road Boynton Beach, FL 33436 12-5-95 RRUSE/QUAILRIDGR/DELVERy.AGn 11 COpy TO: Boynton Beach City Manager P.O. Box 310 Boynton Beach, FL 33425-0310 COpy TO: Delray Beach City Manager 100 N.W. 1st Avenue Delray Beach, FL 33444 COpy TO: Robert W. Federspiel, Esq. 501 East Atlantic Avenue Delray Beach, FL 33483 SECTION 9. Notices; Default. Each of the parties hereto shall give the other party written notice of any defaults hereunder and shall allow the defaulting party 30 days from the date of receipt to cure such defaults, except failure to deliver water on demand. SECTION 10. Default by Either Party. If any party hereto fails to perform or comply with, any of the conditions of this Agreement, and if the nonperformance shall continue for a period of thirty (30) days after the written notice thereof ~o the non-performing party, or if the performance cannot be reasonably completed within the 3D-day period, or if the non- performing party does nQt in good faith commence performance within the 30~day period and does not diligently proceed to complete performance, the non-performing party shall be in default or breach of this Agreement. SECTION 11. Indemnification. In the event RECIPIENT shall fail to comply with any reuse water rule or regulation of any Federal, State or County or local agencies, except BOARD, or violate any permit gI'anted with regard to the use of the irrigation system on the RECIPIENT's property, then RECIPIENT shal'l'indemnify the BOARD, its officers, governing board, employees and agents against all claims, demands, causes of actions, suits, judgments, fines, penalties, or losses, inciluding all costs suffered or incurred by the BOARD by reason of such failure. In the event the BOARD shall fail to comply with any rule, regulation, order of any Federal, State or County or local agency, or fail to deliver water meeting the quality standards provided by this Agreement, then the BOARD shall, to the extent allowed by law, indemnify the RECIPIENT, its officers, board of directors, employees and agents against all claims, demands, causes of actions, suits, 12-5-95 REUSE/QUAILRIDGE/DELVERY.AGR 12 judgments, penalties, fines, or losses suffered or incurred by the RECIPIENT as reason of such failure. SECTION 12. Remedies of Default. If either party hereto shall be in default hereunder as set forth in Section 10, then the other party shall have the follOwing remedy: bring suit for the breach which has occurred without affecting the obligations of the party to perform the balance of the Agreement. The parties shall have the right not only to injunctive relief, but also to recover any damages which a party may incur as a result of the breach of this Agreement by the other party. The parties further agree that any litigation shall be brought in Palm Beach COunty, Florida, only, and the parties agree that the proper venue for any Such action Would onlY be in Palm Beach COunty, Florida. The parties further waive any right to Jury trial they may have in any action among" them involving this Agreement or the alleged breach thereof. SECTION 13. Disclaimers of Third Party BenefiCiaries. This Agreement is solely for the benefit of the fOrmal parties hereto and no right or cause of actiOn shall aCcrue upon or by reason hereof or to or from or for the benefit of any third party not a formal party hereto. SECTION 14. Severability. If any part of this Agreement is found invalid Or unenforceable by any court, Such invalidity or unenforceability shall uot affect the other parts of this Agreement. SECTION 15. Applicable Law. This Agreement and the provlslons Contained herein shall be construed, Controlled and interpreted according to the laws of the State of Florida. SECTION 16. Entire Agreeaoent. This agreement contains the entire Agreement between the parties hereto with respect.to this tranSaction and snpersedes all prior negotiations and all prior written or oral understandings. SECTION 17. Amendments. This Agreement may only be amended, suppl~nted or discharged by an instrument in writing signed by all parties hereto. SE~ION 18. RecOrdation. This. Agreement or a mutually agre~able memorandum thereof will be recorded in the public records of Palm Beach County, Florida. SECTION 19. Extent of Agreement. Each party shall advise the other party, in writing, as to the status of its construction document preparation and construction of" aSsociated improvements on a monthly basis "to ensure that both parties' activities are progressing with reasonable diligence. 12-5-95 RRUSE/QUAILRIDGR/DELVRRY.AGR 13 SECTION 20. Completion Date. The Board agrees to use its best efforts have its Reclaimed Water facilities completed and available for use for RECIPIENT and RECIPIENT agrees to use its best efforts to have its Irrigation System complete and to accept delivery of Reclaimed Water from the BOARD on or before November 1, 1997, subject to matters beyond the reasonable control of either party. SECTION 21. Cross-Connection. RECIPIENT desires to connect its south course irrigation system with its north course irrigation system, which will require crossing the Woolbright Road and L-26 canal. In that the BOARD will also have to cross both rights-of-way. to connect its reclaimed water transmission facilities to RECIPIENT's irrigation system, the BOARD agrees to obtain a price from its Contractor for the installation of such pipe for RECIPIENT. The RECIPIENT shall then be authorized to either contract directly with the BOARD's Contractor for such pipe installation or to obtain its own contractor. .,-, \,\-r\ -- By : V "f\. .y------ cliairritan SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DIS_P-P~AL BOARD i '" , \ \ J \ ~.. \\ \~------------ ! I ATTESTED BY.: - ../7 //"':..-~' ~/~~f~ ~- ,,' .-'-.. .--'~_.... '$~ _..' " _4 /-.:--.~V/Jt<.- . --' '" ~ - >"/~~p-.:tet ary '../ .",.: -".' ~A~'7 ..>' / ,"f J /j<;~- ,/7.- ~/;1?;--&~?~ ~./..../ . ....~ ...... ...---;..- r~ \.. \ '''~) _~/..r APPROVED AS TO FORM: /} .~ . {II /~ Board ....Attorney f QUAIL RIDGE C ~UB /VA/9r- APitROVED;-J?~-: .. L. d~ ,.. :/~,; ,-1l-..~. c~y 6f D~ay Beach, Mayor APP::;)JY:2 City of Boynton ach, Mayor 12-5-95 RRUSE/QUAILRIDGBIDELVRRY.AGR 14 R-XHIBrr A LEGAL DESCRIPTION OF PROPERTY (To Be Provided By Recipient) gUAIL RIDGE (A PLANNED UNIT DEVELOPMENT) PLAT NO.1 BEING A SUBDMSION OF A PORTION OF THE NE 1/4 OF SEGTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, Ai\ID A PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST, VILLAGE OF GOLF l\ND PALM BEACH COUNTY, FLORIDA PLAT NO.2 BEING A SUBDMSION OF A PORTION OF THE NE 1/4 OF SECTION 36, TOWNSHIP 45 SOUTH RANGE 42 EAST, PALM BEACH COUNTY, FLORIDA PLAT NO.3 _ BEING A SUBDTVISION OF A PORTION OF THE N 1/2 OF SECTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, V1LLAGE OF GOLF AND PALM BEACH COUNTY, FLORIDA PLAT NO. 3A BEING A SUBDTVISION OF A PORTION OF THE NW 1/4 OF - ~.c. SECTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, PALM BEACH COUNTY, FLORIDA PLAT NO.4 BEING A SUBDIVlSION OF A PORTION OF THE N 1/2 OF SECTION - . -' 36, TOWNSHIP 45 SOUTH. RANGE 42 EAST, PALM BEACH - COUNTY, FLORIDA PLAT NO.5 BEING A SUBDIVISION OF A PORTION- OF THE NE 1/4 OF . . SEQTION 36. TOWNSHIP 45 SOUTH, RANGE 42 EAST AND A PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST PALM BEACH COUNTY. FLORIDA. PLAT NO. 6 BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH. RANGE 43 EAST. VILLAGE OF GOLF AND PALM BEACH COUNTY. FLORIDA PLAT .NO. 7 BEING A SUBDIVISION OF A PORTION OF THE NORTH ONE...,HALF OF SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST. PALM BEACH COUNTY, FLORIDA Pae-e 1 of 3 - Exhibit '. PLAT NO.8 BEING A SUBDIVISION OF A PORTION OF THE NORTH ONE-HALF OF SECTION 31. TOWNSHIP 45 SOUTH, RANGE 43 EAST. PALM BEACH COUNTY, FLORIDA PLAT NO.9 BEING A SUBDIVISION OF A PORTION OF THE NORTH ONE-HALF OF\SECTION 31, TOWNSHIP 45 SOUTH. RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA PLAT NO. 10 BEING A SUBDIVlSION OF A PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST AND A PORTION OF THE NE 1/4 OF SECTION 36, TOWNSHIP 45 SOUTH. RANGE 42 EAST, PALM BEACH COUNTY. FLORIDA PLAT NO. 11 BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF SECTION 31. TOWNSHIP 45 SOUTH. RANGE-43 EAST. PALM BEACH COUNTY, FLORIDA PLAT NO. 12 BEING A SUBDIVISION OF A PORTION OF THE NE 1/4 OF SECTION 36, TOWNSHIP 45 SOUTH. RANGE 42 E.AST, PALM BEACH COUNTY, FLORIDA ' PLAT NO. 13 BEING A SUBDNISION OF A PORTION OF-THE NW 1/4 OF SECTION 31. TOWNSHIP 45 SOUTH, RANGE 43 EAST. PALM BEACH COUNTY, FLORIDA PLAT NO. 14 . IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM . BEACH COUNTY, FLORIDA, BEING A RE-PLATOF TRACTS 105, 11~, 120 AND PORTIONS OF TRACTS 73, 74,87,88, 106, 107, 117 Al'iD 118 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30. TOWNSHIP 45 SOUTH, RANGE 43 EAST. PLAT BOOK 5, PAGE 73 AND OTHER LANDS PLAT NO. 15 IN SECTION 30, TOWNSHIP 45 SOUTH. RANGE 43 EAST. PALM BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF PORTIONS OF TRACTS 53, 54, 75, 76, 85 AND 86 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30. TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5. PAGE 73 AND OTHER LANDS ~ "If PLAT NO. 16 IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF PORTIONS OF TRACTS 73. 74. 75, 86. 87 A1\JD 88 PALIVI BEACH FARMS COMPANY PLAT NO.8. SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS "" PLAT NO. 17 IN SECTION 30, TOWNSHIP 45 SOUTH. RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF PORTIONS OF TRACTS 85,86,87,106,107,108,117 AND l18 PALM BEACH FARl\tIS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5. PAGE 73 AND OTHER LA~DS PLAT NO.. 18 IN SECTION 30, TOWNSHIP 45 SOUTH~ RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF PORTIONS OF TRACTS 51,52,53.54.76,77,78, 84 AND 8 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS PLAT NO. 19 IN SECTION 30, TOWNSHIP 45 SOUTH; RANGE 43 EAST, 'PALM BEACH COUNTY. FLORIDA, BEING A RE-PLAT OF TRACTS 19, 20, . 45 Al'ID 46 AND PORTIONS OF TRACTS 12,. 13, 14, 21, 43. 44. 51, 52, 53 AND 54 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS , PLAT NO. 20 IN SECTION 30, TOWNSHIP 45 SOUTB, RANGE 43 EAST, PALM BEACH ~OUNTY, FLORIDA. BEING A RE-PLAT OF TRACTS 22,41, 4:Z:"AND PORTIONS OF TRACTS II, 12,21, 43.53.54,55 AND 56 PALM BEACH FARMS COMPANY PLAT NO.8. SECTION 30, TOWNSHIP 45 SOUTH. RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS PLAT NO. 21 IN SECTION 30, TOWNSHIP 45 SOUTH. RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF TRACTS 115. 116, 110, 109, 83 AND PORTIONS OF TRACTS 117, 108, 84, 85, 78,77.51 AND 52 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30. TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOE: 5. PAGE 73 AND OTHER LANDS EXHIBIT B OPERA TINe RESTRlcrs Recipient shall maintain compliance with the fOllowing operating restrictions for protecting human bealth, welfare and safety, and the environment 1'<\. L The pnblie shall be notified of the use of reclaimed Water by posting advisory signs, notes on score cards or other methods in accordance with Chapter 17-610.468 F AC. 2. Direct connections between the reclaimed Water system and inigation Water system shall not be allowed without the use of appropriate backflow prevention devices. . 3. No cross-connection to potable water systems shall be allowed. 4. All reclaimed water valves and outlets sh(lll be appropriately color coded and labeled in accordance with Chapler 17,", 10.470 F AC to warn public and employees that the water is not intended for drinking, 5. Setback distances to POtable water supply wells and the use of low trajectory nozzles shall be in accordance with ChapterJ7-610A71 FAC 6. The use of reclaimed water shall be consistent with all applicable fedecal, Siate, and local Jaws and re2111ations. Jl:.~S7 4\O:JImrr..B Exhil?it B January J 995 P.pc lor) 3 c o ... :.::; o v .u ~J C) lJ CC o c ,_ c ] ~ i; ~ o .... U}. <:: " - ~j Q :!! 3- <3 ...... C) '" " _~- c: J ';:)", \'" S.;9Jo.uO:l \l 0: l' .: :::: .0 a IJ ~, D ::n " tl .... '" ~ "ti . 0: 0)'\)0_.0 Seo2 Q ,.- () U , ..J :;: ::> Q . r ~ 5 It ... >- " " , ~ J :e , o c \,... .!2 <11.... -o..-u U ~2 ~ ll> uU;>-c +J'- C .- n:: >."Q 0 .0 '- IV l) ~ '0 ~ .f '+- w:J;:]oo 00- Uu...... 11) C oc "0 0... .'rl t>: '= Q) ,,-;g .; o Ut_ '- 0 :J "1;1 C) ? a '- () 0 .. a: U n it: -t '" ~ ~ S .s OJ Ok .. 6 ~ " {~ "5 . 5 ~ u - "- ~ 7 --' .J). '(II'!lII" EXHIBIT D Enclosure 'A' Board s~1I monitor thc redaimcd water for the following parameters and agrcx:s to di\'cn reclaimed water ",hich occeds the specjfied limits. Par3meler Sampling FrC{juency Limitll1 T urbidit). Continuous 2 NTU Chlorine Residual Continuous (minimum) Cl;J.1oride Continuous 350 CBOD(~) Daily 20 TSS(J} Daily 5 pH Hourly 6 to 7.5 units(5) 7.8units(6) Aluminum Annual 1.0 Arsenic Annual 0.10 Beryllium Annual O.JO Boron Annual 0,50 Cadmium Annual 0.01 Chromium Ann ual 0.] Cabah Annual 0.05 Copper Annual 0.2 Fluoride Annual 1.0 Iron Annual 5.0 Lead Annual 5.0 Lilhit;m Annual 2.5 Manganese Annual 0.2 Molybdenium Annual 0.005 Nickel Annual 0,02 Selenium Annual 0.02 Vanadium Annual 0.1 0 Zinc r - Annual 2,0 Bicarbonate, (as CaCO~) Annual J20 .>. (4) Calcium AnnUal Magnbium Annual (4) Sodium Annual (4). Sodium Adsomtion Ratio Annual 6 uni15 (1) Q) (3) (4) (5) (6) Maximum concentration expn;ssed .in mgIL unless noted. Carbonaceous Biochemical O).-ygen Demand (CBOD). Total Suspended Solids (TSS). Information used in calculation of Sodium Adsorption Ratio (SAR). Daily average . 2-Hour duration 'I\':'J~7~\EXHIBI1,D Exhibit D January J 995 P.~ 1 of I ASSIGNMENT AGREEMENT WIl KOS-087 J THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of ,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter 163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON." WITNESSETH; WHEREAS, the BOARD has heretofore entered into that certain Agreement with Quail Ridge Country Club, concerning delivery and acceptance of reclaimed water dated the 5th day of August, 1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water Agreement;" and WHEREAS, the BOARD is modifying its reclaimed. water operations as a result of an amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD will provide wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach; and WHEREAS, in order to implement such modification and the mode of operation as above described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such assignment, shall assume all of the rights, duties and obligations of the BOARD under ~s~qi.d Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration from one party to the other, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows: 1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed Water Agreement to BOYNTON, effective the 1st day of October, 2005. ~ ,2. BOYNTON hereby agrees to accept and assume all rights, benefits and obligations created underthe said Reclaimed Water Agreement pursuant to this assignment. :; .~. IN WllNESS WHEREOF, the parties have executed this Assignment Agreement the day and year first above written. ---SOO-TH CENTRAL REGIONAL WASTEWATER TMENT AND DISPOSAL BOARD " t~ By: Printed Name: Mu ire. Chainnan ATTESTED BY: Secretary APPROVED AS TO FORM City Attorney '. CITY OF BOYNTON BEACH By: Mayor ) - -:~ t.<3) h:. 7 FIRST AMENDMENT AND RESTATEMENT OF AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL wAsTEWATER TREATMENT AND DISPOSAL BOARD AND QUAIL RIDGE COUNTRY CLUB CONCERNING DELIVERY AND ACCEPTANCE OF RECLAIMED 'WATER THIS FIRST AMENDMENT AND RESTATEMENT of that certain AGREEMENT dated January 18, 1996, is made and entered into on this J,; day of ~V~b~ , 1997, by and between South Central Regional astewater Treatment and Disposal Board, a municipal corporation created pursuant to the laws of the State of Florida (hereinafter BOARD), and Quail Ridge Country Club, Inc. (hereinafter RECIPIENT). WIT N E SSE T H: WHEREAS, the BOARD and RECIPIENT have heretofore entered into that certain Agreement Concerning Delivery and Acceptance of Reclaimed Water dated January 18, 1995; and WHEREAS, RECIPIENT has requested an Amendment to. such Agreement to provide for additional volumes of reclaimed water in- order to allow RECIPIENT to supply reclaimed water for landscape irrigation purposes to the Quail Ridge Property Owner's ASSOCiation, Inc., (the "POA"), pursuant to the contractual relationship between RECIP1ENT and the POA; and . ~, WHEREAS, the BOARD is agreeable to amending said Contract to provide the additional volumes requested pursuant to the terms and conditions set forth in this Amendment. Accordingly, for and in consideration of the recitals contained herein, mutual understandings and agreements contained herein, and other conSideration, the receipt and s.ufficiency.of which iShereby~-acknowledged by.;the-parties, the Parties covenant and agre?,as follows: - ',. SECTION 1. Recitals. The below recitals are true and correct and form a material part of this Agreement. ., ~ ..... 1.1 The Parties hereto represent to one another that each has the full power and authority to enter into this Agreement and to carry out their respective obligations thereunder. The BOARD is composed of the Ci ties of Boynton Beach and Delray Beach (the "Ci ties" ), pursuant. to an Interlocal Agreement entered into pursuant to Chapter 163, Florida Statutes. 4-9-97 Reuse/Quai1.rdg/restatement.amd 1 B 1.2 The parties recognize that reuse of Reclaimed Water is in the public interest, as it recaptures _ an otherwise wasted and unused water resource _ The BOARD owns and operates wastewater facilities which it proposes to upgrade to produce Reclaimed Water suitable for irrigation of areas, such as golf courses, parks, school grounds, cemeteries, and landscaping irrigation, and RECIPIENT is willing to accept such Reclaimed Water for irrigation purposes in the public interest. 1.3 In a normal year, RECIPIENTS will irrigate approximately 240 days and most of RECIPIENT'S daily requirements will be needed during approximately 12 hours commencing about sundown. BOARD agrees to use its best efforts to supply Reclaimed Water on demand to RECIPIENT up to the volume and at the charge set forth in this Agreement. RECIPIENT has valuable golf courses that require access to such Reclaimed Water and has expended substantial money and effort and has foregone other avenues to meet its irrigation requirements in reliance on this Agree~ent. The BOARD is not required to upgrade its wastewater system to prOduce Reclaimed Water but is doing so in reliance upon the RECIPIENT entering into this Agreement. 1.4 (a) The RECIPIENT owns and controls land (the "Property") which is described in Exh.ibit "A", attached and made.a part hereof by reference; (b) The RECIPIENT by contractual relationship will have obtained the right to provide reclaimed water for landscaping irrigation purposes to the POA's properties (the "POA Property") which lie within the property described in Exhibit "A." 1.5 RECIPIENT agrees to: (a) irrigate the Property and provide reclaimed water. for irrigating the POA, Property using Reclaimed Water; (b) maintain the storage facility, if applicable, ponds and lakes, if applicable, pumps and irrigation system to be located on the Property from the point of delivery; and (c) upgrade its irrigation system when reasonable and economical to utilize the volume of Reclaimed Water accepted from the BOARD and as required to . meet any federal, state, or local requirements, (d) maintain compliance with the ope~ating restrictions for protecting human heal.th .and the environment attached thereto as Exhibit "B. It 1.6 RECIPIENT shall accept the Reclaimed Water delivered by the BOARD and use Lt for irrigation of the P~operty and the POA Property. The BOARD shall be deemed to be in possession and control of the Reclaimed Water until it shall have been delivered to the RECIPIENT at the Point of Delivery. After such :;delivery, the RECIPIENT shall be deemed to be in possession and control thereof. 1.7 The RECIPIENT agrees to maintain all Federal, State and governmental permits issued to it and necessary to allow it to 4-9-97 Reuse/Quai1.rdg/restatement.amd 2 9 receive and utilize the Reclaimed Water pursuant to the terms of this Agreement. 1.8 The right of the RECIPIENT to sell, transfer or encumber the Property in areas irrigated with the Reclaimed Water shall not be restricted by this Agreement. This Agreement shall run with the land so long as the use of a major portion of the Property shall continue to be for golf course and related purposes. Any subsequent party in interest to such golf course or COurses shall be obligated to receive and pay for Reclaimed Water under the Same terms and conditions of this Agreement, unless modified by mutual consent of the BOARD and the buyer or transferee. 1 . 9' METER. The design and construction of the metering facility shall be the responsibility of the BOARD and must be mutually approved in advance in writing by BOARD and RECIPIENT. The meter will be utilized to measure the'amount of Reclaimed Water delivered by the BOARD to RECIPIENT and th~ BOARD shall operate, maintain, cause to be calibrated, and repair said meter. 1.10 CONSTRUCTION. Upon completion of the engineering design of the metering facility, and the acceptance of same by both parties, the metering facility will be constructed by the BOARD and placed into service. 1.11 COSTS AND OPERATION. The BOARD shall bear the cost of constructing, owning and maintaining the Reclaimed Water meter and related appurtenances and the lines interconnecting BOARD's system into the metering faCility, including all valves and appurtenances up to and including the discharge flanges of the valves immediatel.y downstream of the meter. The parties agree that the RECIPIENT shall have reasonable access to the metering faCility, to all other Reclaimed Water meters, check valves., and any other appurtenances thereto, to verify flows, meter readings, meter calibrations, efficiency of the check valves, and any other performance data necessary to the operations of the Interconnection facility upon reasonable advance notice to. the Board. The . metering device shall be tested and .calibrated, at;,BOARD~s.eXPense,.tat~,.least;>.::. once per :year and repai.red~'i.f:'required. 'AnyHttl:Ors:=in meter:;,readJ.ng..;: and any" discrepancy in. meter results from a true. and COrrect measure of ReClaimed Water flow to RECIPIENT shall be adjusted properly and retroactively to 'reflect the flow to RECIPIEN'I'. Any . incorrect metering device shall be repaired forthwith by the BOARD. 1.12 This agreement has been duly authorized by all named parties. Pursuant to Section 3 (C) of the Interiocal Agreement dated December 26, 1974, between the City of Boynton Beach and the Ci ty 0 f Delray Beach, this Agreement and all provisions thereof have been contractually approved by a majority vote of each City Council as the act of each City, or, if Such approval has not 4-9-97 Reuse/Quail.rdg/restatement.amd 3 JO already been obtained, such approval will be obtained and certified to RECIPIENT before this Agreement shall become effective. SECTION 2. Definitions. The parties agree that in construing this Agreement, the following words, phrases and terms shall have the following meanings, unless the context requires otherwise: 2 . 1 "Agreement" means this Agreement between BOARD and RECIPIENT. 2 . 2 "FDEP" means the Florida Department of Environmental Protection, and its successors. 2.3 "Fiscal Year" means October 1 to September 30 of the following year. 2.4 "GPD" means gallons per day. 2.5 "Irrigation system" means those pump stations, lines, pipes, sprinkler heads, ponds and lakes, storage facilities, if applicable, and pertinent equipment that are located on RECIPIENT's property and used to store, spray and irrigate with Reclaimed Water that has been treated. in accordance with all applicable governmental regulations and in. accordance with the terms and provisions of this Agreement. 2.6 "MGD" means million gallons per day. 2 . 7 "Point of delivery" means the point at the meter which divides the BOARD's wastewater facilities from the RECIPIENT.'s irrigation system, or as otherwise noted on engineering drawings approved by both parties. 2.8 "Reclaimed Water" means wastewater that has been treated in accordance with Section 3.4 of this Agreement. 2 .9 .. Reclaimed Water Disposal Facilities n means those facilities necessary for the. storage, .if~applicable,:,.transportation and dis]?osal of wastewater. previously treated "in < acCordance with applicable ,local , state and federal standards and limitation at the plant to the standard of Reclaimed Water. These facilities include, but are not limited to, any Reclaimed Water transmission faciliiies, irrigation systems and storage facilities, if applicable. 2.10 "Reclaimed Water Transmission Facilities" means the BOARD's facilities used to transmit Reclaimed Water. 2.11 "Storage Facilities" means those facilities which may be designed, permitted and constructed on the Property and the POA 4-9-97 Reuse/Quail.rdg/restatement.amd 4 Property, if applicable, or upon the BOARD's. property, if applicable., and which are necessary to store and hold Reclaimed Water in a manner that complies with regulatory requirements. 11 2.12 "Wastewater" means the product received by the wastewater treatment facility for treatment. 2.13 "Wastewater Facilities" means the BOARD's plant located at 1801 North Congress Avenue, Delray Beach, Florida, and Reclaimed Water transmission facilities, including all interceptors, lines, pipes, meters, cOuplings, pumps, force mains, and appurtenant equipment necessary to treat and transmit the Reclaimed Water. SECTION 3'. Grant of License and Easement. RECIPIENT hereby grants to BOARD an easement over the Property including a 15 foot utility easement to be mutually agreed upon and located in the approximate location depicted on Exhibit "C" attached hereto, to allow construction, operation, maintenance and repair of the BOARD's Reclaimed Water transmission main to the pomt of delivery, and the right to transmit, deliver and dispose of Reclaimed Water through the irrigation system and storage facility, if appliCable, on the Property in accordance with and subject to the following conditions: 3.1 Desi n and installation of Certain Facilities. BOARD agrees to design, permit, install and operate improvements and additions at its existing wastewater treatment plant, and the BOARD's Recla.imed Water transmission facilities, and to Perm.i.t effluent disposal facilities in order to provide Reclaimed Water at the point of delivery. RECIPIENT agrees to design, permit, install and operate, at its sol.e expense, any storage facility, if applicable, and the irrigation system on the Property and the POA Property up to the point of delivery. 3. 2 Permi ts and Approval for the IrriQation Svstem. Recipient shall be responsible, in cooperation with Board, for obtaining and maintaining necessary governmental permits and approvals in;.orderto install and operate the irrigation system: provided, however , that Board shall be responsible for obtaining and ma~rttaining all permits for Reclaimed Water disposal facilities. For all wastewater facilities located on its side of the point of delivery, BoaJ;:d shall be solely responsible for obta~rig, compiling, providing and complying' with all monitoring, sampling, testing, and~ reporting requirements for the Reclaimed Water, which may be imposed by government law, rule, permit, or approval. Recipient shall grant Board upon reasonable advance notice to RECIPIE~T access to the irrigation system as needed to assure continued compliance with applicable laws and regulations, inClUding, but not limited to, any monitoring or testing requirements. 4-9-97 Reuse/Quai1.rdg/restatement.amd 5 3.3 Delivery of Reclaimed Water. BOARD agrees to use its best efforts to make available and deliver in the volume and at the times requested, an annual volume of Reclaimed Water of at least 584,000,000 gallons (MGY), with maximum volume anyone day up to but not to exceed 3,690,000 (1,230,000 north connection and 2,460,000 south connection respectively) gallons per day (GPD), at a rate of 7,688 (2,563 north connection and 5,125 south connection respectively) gallons per minute (GPM), for use on the Property and the POA Property and, at its co~t, to connect the BOARD's Reclaimed Water transmission facilities to RECIPIENT's irrigation system at the point(s) of delivery agreed upon and as shown in Exhibit "C". Both RECIPIENT and BOARD recognize that water supply and demand will vary depending on a number of factors, primarily climatic conditions. 3.4 Quality of Reclaimed Water. BOARD shall make available to RECIPIENT Reclaimed Water of a quality consistent with the requirements of "public access" treatJ.nent levels as set forth in Chapter 62-610, Florida Administrative Code, or its successor Code provisions, or of a quality consistent with more stringent requirements that may be imposed by any governmental agency having jurisdiction and legal authority. In recognition of the need to supply Reclaimed Water, the BOARD shall also be required to comply with effluent limitations set forth in Exhibit "D". All Reclaimed Water made available by BOARD under this Agreement shall, at a minimum, have been treated by advanced treatment methods to remove harmful levels of bacteria, viruses, and other constituents or pollutants which could constitute a danger to human health, "and in accordance with all applicable federal, state and local laws, rules, regulations, policies, ordinances, resolutions, orders and permits and the requirements of Exhibit "D". BOARD shall provide continuous monitoring of chlorine and turbidity, as well as other required ground and surface water quality sampling and monitoring of Reclaimed Water as required by local, state and federal regulations and by Exhibit "D". BOARD agrees to divert away as expeditiously as possible, from the irrigation system, any Reclaimed Water which does not comply with the terms and conditions of this Agreement or which does not meet the applicable sta~e, federal.or local ~aws and regulations and to promptly and fully notify RECIPIENT of such action. Copies of all. test results shall be available to RECIPIENT upon request. j . 5 Minimum Purchase of Reclaimed Water by RECIPIENT. Upon receipt of all necessary governmental permits and approvals by all parties and completion of construction of wastewater facilities and continuing for so long as BOARD complies with the requirements set forth ~n this Agreement, RECIPIENT has an obligation to pay for at least 440,000,000 million gallons annually of Reclaimed Water for spray irrigation on the Property and the POA Property, subject to condi tions as set forth in Section 3.3 of this Agreement. 4-9-97 Reuse/Quai1.rdg/restatement.amd 6 13 Notwithstanding anything to the contrary, Recipient shall not be obligated to accept delivery of or pay for Reclaimed Water which does not comply with the terms and conditions of this agreement. Such exception to RECIPIENT'S obligation to accept delivery of such Reclaimed Water by reason of the Board's failure to meet the water quality standards required in this Agreement shall relieve RECIPIENT of its obligation to pay BOARD for the minimum annual volume set forth above at the rates determined pursuant to Paragraph 5 below only to the extent that the BOARD shall not have made available to RECIPIENT such annual minimum volume of Reclaimed Water meeting the requirements of this Agreement through the completion of the then current fiscal year. Recipient shall not transfer the water provided by Board to any third party for use off of the Recipient's or the POA Property. NotWithstanding the foregoing, the minimum purchases as above described shall be brOken down into two (2) phases: a. Phase I - for the irrigation of the Property (the golf courses) the RECIPIENT obligation shall commence at the time and in the manner as specified in this Agreement with respect to 180,000,000 million gallons year (MGY). b. Phase II - for the irrigation of the Property and the POA Property the minimum obligations as described above shall be increased to 440,000,000 million gallons per year (MGY) upon connection of the supply lines from the RECIPIENT system to the PDA's delivery system, provided that such connection and increase in the obligation shall occur not later than six months (6) following the delivery of Reclaimed Water for Phase I, above. 3.6 RECIPIENT shall be responsible for all maintenance of water and its irrigation system on RECIPIENTS side of the point(s) of delivery. 3.7 Nothing in this Agreement shall be construed to give RECIPIENT any right to the exclusive receipt of BOARD's Reclaimed Water supply. 3 . R.1'he BOARD agrees that it will not enter into contracts with other recipients of Reclaimed Water for more than its daily SUpply capacity as the same exists from time to time. .- SECTION 14. Term and Fees 4.1 Ternl. The Easement and this Agreement shall be in effect for a period of twenty (20) years commencing on the date of execution of this Agreement. The term' of the Easement and this Agreement shall be automatically extended for successive periods of ten (10) years each, upon the same terms and conditions as herein 4-9-97 Reuse/Quail.rdg/restatement.amd 7 1'l provided, unless either party hereto notifies the other by certiIied mail at least three years prior to the expiration of the initial term of this Agreement or any renewal thereof, that this Agreement shall not be so extended. 4.2 Payment of Fees. In return for and in consideration of BOARD's construction of facilities and delivery of Reclaimed Water, RECIPIENT agrees to pay BOARD a one-time connection fee of Six Thousand Five Hundred Dollars ($6,500.00) for the north connection, and Nine Thousand Dollars ($9,000.00) for the south connection, and a volume charge of 206 for each 1,000 gallons of Reclaimed Water used (the "Volume Charge"), but on an annual basis not less than the above rate times the minimum quantity RECIPIENT has agreed to purchase under Section 3.5, together with a storage charge equal to 8e (the "Storage Charge") for each 1,000 gallons of Reclaimed Water the Volume Charge for which is paid for by RECIPIENT, as provided above. Such Storage Charge shall remain constant and shall not be adjusted during the term of this Agreement or any extension hereof. Payment of the connection fee shall be in one lump sum no later than the commencement of construction of the modification to the BOARD's wastewater facilities for the treatment and production of Reclaimed Water. The Volume Charge shall remain constant until the expiration of the third ( 3 ) fiscal year from the commencement of pumping (provided that if less than six (6) months expires betweeJl the time BOARD commences or makes available delivery of Reclaimed Water and the end of the first fiscal year, such first year shall not count as the first fiscal year), after which the price will be redetermined as provided in Section 5. The BOARD shall render billings to RECIPIENT for the volume charge on a monthly basis for such applicable charges on the basis of the greater of the actual Reclaimed Water delivered or the volume charge for 1/12th of the minimum guaranteed annual volume agreed to be a.ccepted by RECIPIENT pursuant to Section 3.5 above; provided that RECIPIENT shall pay no more, on. a fiscal year basis,. than (i)such minimum annual guaranteed volume charge or (ii)charges for Reclaimed Water actually accepted during the fiscal year, whichever is more. 4.3 In the event the .BOARD shall not be able to deliver Reclaimed.Water in the nlinimum vo.lume agreed to in Section 3.5 of this Agreement, as a result of its inability to do so and through no act~on or inaction on the part of the RECIPIENT, the RECIPIENT shall be entitled to a credit for such shortage in the minimum agreed to volume (by a proportionate reduction)_ SECTION 5. Future Adjustment of Price of Reclaimed Water. The Volume Charge shall be adjusted after the first three (3) fiscal years as aforesaid upward or downward based on one-half (!) of the year-to-year change in the actual operating costs of producing, metering and delivering Reclaimed Water from effluent 4-9-97 Reuse/Quail.cdg/restatement.amd 8 and transmitting it to the point of delivery ~or the RECIPIENT as it relates to the preceding year's Volume Charge, however, such Volume Charge shall never"be less than 20~ per thousaud gallons nor" shall an increase be applied if the actual operating costs shall be less than said 20~ per thousand gallons. The first such adjustment shall Occur effective the first day of the fourth fiscal year following the initial delivery of Reclaimed Water to RECIPIENT and shall reflect one-half (ll the relative increase or decrease in actual operating costs incurred by the BOARD during the second fiscal year of delivery of Reclaimed Water to RECIPIENT as compared to the third ~iscal year and for each subsequent year thereafter as compared to the previous year. The actual operating cost and change therein shall be the baSis for determining the index for making theadjustmellts in the Volume Charge. Actual operating costs ("Actual Operating Costs It) shall be determined in conformity with generally accepted, accounting principles consistently applied, except the depreciation of plant and equipment and any other provision for capital recovery, inclUding interest on long term debt, shall not be "included as operating costs, as Such costs are properly allocable to wastewater customers. Any increase or decrease in the Volume Charge shall be determined as SOon as reasonably practicable aud shall be effective retroactive to the scheduled date of adjustment and a sum due to the BOARD as a result of the retroactive effect of Such adjustment or the credit due the RECIPIENT, if appliCable, shall be reflected in the next billings regularly submitted by BOARD to RECIPIENT as provided in Subparagraph 5.4. 5.1 BOARD personnel shall establish, or cause to be establiShed, and maintain an accounting system in which Such current operating costs are recorded monthly in separate accounts from sewage processing accounts. Costs shall be reCOgnized on a first-in first-out basis. The BOARD personnel "shall prepare and preserve any studies relating to the allocation. of operating costs on other than an actually incurred basis. By way of example, the parties agree that all Operating and maintenance costs of labor, chemicals and power, permits, regulatory requb:ements, legal., engineering, administration, testing, meter cal.ibration and contract services may be::.allocatedbased: on appropriate data or. studies " ,Such current" operating costs shal.l be recorded on a conSistent' basis ~from month to month and year to year, and the total for each fiscal year shall be nsed to calcul.ate a cost per thousaqq gal.lons of Reclaimed Water del.ivered beginning with the second .. fiscal year after the plant starts to deliver Reclaimed Water to RECIPIENT. 5.2 By way of example, if delivery begins on October 6, ~1996, the third fiscal year thereafter would be October 1, 1998 to September 30, 1999 . Assume that the actual Cost of producing Reclaimed Water for the fiscal year October 1, 1997 through 4-9-97 Reus.e/Quai.l. rdg/restatement.amd 9 15 16 September 30, 1998 was 216. Further, assume that the Actual Operating Cost of producing and delivering Reclaimed Water to RECIPIENT during the second fiscal year to the end of the third fiscal year (October 1, 1997, through September 30, 1999) increased from 216 per thousand gallons to 23e per thousand gallons. The index for increase would be calculated by dividing the base cost of 2le per thousand gallons into one-half (!) the 26 increase in cost, resulting in an increase of 4.76% to the previous years' Volume Charge of 20e per thousand gallons for the fourth fiscal year, equal to 20.95~ per thousand gallons (! x 2 = 1 7 216 = .0476, then 20e x 1.0476 = 20.956). 5.3 As soon as reasonably practical, after each fiscal year for which the contract price is subject to adjustment , the BOARD shall prepare a statement showing in reasonable detail the actual operating costs to produce Reclaimed Water from effluent for the latest two fiscal years. For each such year, the statement shall also show (1) the number of gallons in thousands of Reclaimed Water delivered to Reclaimed Water users, (2) the cost per thousand gallons of Reclaimed Water calculated by dividing such operating costs by such gallons, (3) the calculation of the ratio of change in cost per thousand gallons from the earlier year to the later year, and (4) the calculation of the adjusted price for the later year. This statement shall be deemed to be the responsibility of the BOARD, and the BOARD's Executive Director shall attest in writing to the propriety of the costs and calculations shown thereon. 5.4 By January 15 of each year, the BOARD'S Executive Director shall submit to RECIPIENT the supplemental statement set forth in the preceding paragraph, together.with the attestation thereto by the BOARD. At the same time, the BOARDS Executive Director shall submit to RECIPIENT a bill or credit showing (l)the amount paid by the RECIPIENT for Reclaimed Water delivered in the current fiscal year, (2) the amount payable for Reclaimed Water delivered in the current fiscal year based on the adjusted price for the year as set forth above, and (3) the difference. Any such difference shall be either paid promptly by the RECIPIENT, or shown as a c:r.:edi t in the next bi11ing to the RECIPIENT. 5.5 For billing purposes only prior to the determination of actua;t. costs for adjusting the Volume Charge, during each year subje6t to price adjustment, the BOARD may.use a tentative price per thousand gallons based on using budgeted costs for the current year in the price adjustment calculation set forth above~ 5.6 RECIPIENT, at its own expense, has the option of examining the financial statements, general books and related records, and production records of the BOARD. 4-9-97 Reuse/Quail.rdg/restatement.amd 10 17 5.7 Notwithstanding the above provisions, the -price paid by the RECIPIENT for Reclaimed Water shall be adjusted downward in the event the BOARD offers Reclaimed Water to any other non- governmental customer (s) upon substantially similar terms and condi tions for the same use of the Reclaimed Water at a lower charge than RECIPIENT is or will be paying under this Section 5. Such downward adjustment shall be made to guarantee RECIPIENT that no other user of Reclaimed Water for similar purposes shall receive a more favorable charge than will also be given to RECIPIENT under similar circumstances. 5.8 To the extent that the BOARD receives governmental or environmental noncapital improvement subsidies which are provided to the BOARD for encouraging wastewater reuse and which are intended to be applied pursuant to the terms of such grant or subsidy to the operational costs of the Reclaimed Water faCility, as opposed to capital improvements or expansion of such Reclaimed Water facility, the BOARD will- apply such funds, to the extent allowed, to its Reclaimed Water facility op~rating costs. 5.9 The parties to this Agreement agree and recognize that RECIPIENT is under no legal or other obligation to enter into this Agreement for reuse of wastewater. RECIPIENT currently has operating permits from FDEP and the Water Management District to pump surface and ground water for all RECIPIENT'S irrigation needs and RECIPIENT'S costs to pump this surface and ground water is substantially less than the charges RECIPIENT will pay for Reclaimed Water under this Agreement. RECIPIENT'S only consideration and motivation to enter into this Agreement is ta~' insure sufficient irrigation water by receiving its full allocation of Reclaimed Water on demand in accordance with the rate and delivery conditions set forth in this Agreement, free from adverse environmental or climatic impact. RECIPIENT has determined that the benefits of this Agreement are only marginally economically feasible. Therefore, if as a result of any action by the BOARD, the City of Delray Beach or the City of Boynton Beach, RECIPIENT would be required to pay charges in excess of those established under Section 5, . then RECIPIENT sha11 . have.the option of canceling this Agreement upon sixty (60) days. advance written notice to.the BOARD. SECTION. 6. Inspection. BOARD shall have the right to enter RECIPIENT's Property and the POA Property, upon proper identification and at any reasonable time, in order to inspect the irrigation system as may be necessary or desirable,' .for the operation, safety, protection, or preservation thereof, to determine compl iance with any law, order or regulation of any governmental authority having jurisdiction, and for sampling at any monitoring wells located on the Property and the POA Property. RECIPIENT shall have the right to enter the BOARD's plant and 4-9-97 Reuse/Quai1.rdg/restatement.amd 11 J (~ properties and the right of access to its wastewater facilities and records, at any reasonable time, for the purpose of determining whether the BOARD is in compliance with this Agreement. SECTION 7. Assignments. This Agreement can be assigned by RECIPIENT only with the prior written approval of BOARD, but such approval shall not be unreasonably withheld, provided the assignee shall assume this Agreement and shall demonstrate to BOARD its financial ability to comply with the provisions hereof. SECTION 8. Notices; Proper Form. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delivered when (1) hand delivered to the official hereinafter designated, (2) upon receipt of such notice when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to a party at the address set forth opposite the party' name below, or at such other'address as the party shall have specified by written notice to the other party delivered in accordance herewith: BOARD SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD Executive Director 1801 North Congress Avenue Delray Beach~ FL 33445 RECIPIENT QU~L RIDGE COUNTRY CLUB C/O Club Manager 3715 Golf Road Boynton Beach, FL 33436 COpy TO: Boynton Beach City Manager P.O. Box 310 Boynton Beach, FL 33425-0310 COpy TO: Delray Beach City Manager 100 N.W. 1st Avenue Delray Beach, FL 33444 COpy TO: Robert W. Federspiel, Esg; 501 East Atlantic Avenue Delray Beach, FL 33483 SECTION 9. Notices; Default. Each of the parties hereto shall give 4-9-97 Reuse/Quai1.rdg/restatement.arnd 12 19 the other party written notice of any defaults hereunder and shall allow the defaulting party 30 days from the date of receipt to cUre such defaults, except failure to deliver water on demand. SECTION 10. Default by Either Party. If any party hereto fails to perform or comply with any of the conditions of this Agreement, and if the nonperformance shall continue for a period of thirty (30) days after the written notice thereof to the non-performing party, or if the performance cannot be reasonably completed within the 3D-day period, or if the nonperforming party does not in good faith commence performance within the 3D-day period and does not diligently proceed to complete performance, the non-performing party shall be in default or breach of this Agreement. SECTION 11. Indemnification. In the event RECIPIENT shall fail to comply with any reuse water rule or regulation of any Federal, State or County or local agencies, except BOARD, or violate any permit granted with regard to the use of th~ irrigation system on the RECIPIENT's Property and the POA Property, then RECIPIENT shall indemnify the BOARD, its officers, governing board, employees and agents against all claims, demands, causes of actions , suits, judgments, fines, penalties, or losses, including all costs suffered or incurred by the BOARD by reason of Such failure. In the event the BOARD shall fail to comply with any rule, regulation, order of any Federal, State or County or local agency, or fail to deliver water meeting the quality standards provided by this Agreement, then the BOARD shall, to the extent allowed by law, indemnify the RECIPIENT, its officers, board of directors;" employees and agents against all claims, demands, causes of actions, suits, judgments, penalties, fines, or losses suffered or incurred by the RECIPIENT as reason of such failure. SECTION 12. Remedies of Default. If either party_ .hereto shall be in default hereunder as set forth in Section 10, then the other party shall have the following remedy: bring suit for the breach which has occurred without affecting the obligations of the party to perform the balance of the Agreement. The parties shall have the right not. only to injunctive relief, but also to recover any damages which a party may-incur as a result of the -breach of this Agreement' by the other party. The parties further agree that any litigation shall be brought in Palm Beach County, -Florida, only, and the parties agree that the proper venue for any such action would orrly be in Palm Beach County, Florida: The parties further waive any right to Jury trial they may have in any action among them involving this Agreement or the alleged breach thereof. SECTION 13. Disclaimers of Third Party Beneficiaries. This Agreement is solely for the benefit of the formal parties hereto and no right or cause of action shall accrue upon or by reason hereof or to or from or for the benefit of any third party not a 4-9-97 Reuse/Quai1.rdg/restaternent.amd 13 20 formal party hereto. SECTION 14. Severability. If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other parts of this Agreement. SECTION 15. Applicable Law. 'rhis Agreement and the provisions contained herein shall be construed, controlled and interpreted according to the laws of the State of Florida. SECTION 16. Entire Agreement. This agreement contains the entire Agreement between the parties hereto with respect to this transact~on and supersedes all prior negotiations and all prior written or oral understandings. SECTION 17. Amendments. This Agreement may only be amended, supplemented or discharged by an instrument in writing signed by all parties hereto. SECTION 18. Recordation. This Agreement or a mutually agreeable memorandum thereof will be recorded in the public records of Palm Beach County, Florida. SECTION 19. Extent of Agreement. Each party shall advise the other party, in writing,. as to the status of its construction document preparation and construction of associated improvements on a monthly basis .to ensure that both parties' activities are progressing with reasonable diligence. SECTION 20. Completion Date. The Board agrees to use its best efforts have its Reclaimed Water facilities completed and available for use for RECIPIENT ?nd RECIPIENT agrees to use its best efforts to have its Irrigation System complete and to accept delivery of Reclaimed Water from the BOARD on or before November 1, 1997, subject to matters beyond the reasonable control of either party. SECTION 21. Cross-Connection. RECIPIENT desires to connect its south c~urse irrigation system with its north course irrigation system, 'which will require crossing the Woolbright Road and L-26 canal. In that the BOARD will also have to cross both rights-of- way to.;:.; connect its reclaimed water transmission facilities to RECIPIBNT's irrigation system, the BOARD agrees to obtain a price from its Contractor for the installation of. such pipe for RECIPIENT. The RECIPIENT shall then be authorized to either contract directly with the BOARD's Contractor for such pipe installation or to obtain its own contractor. 4-9-97 Reuse/Quail.rdg/restatement.amd 14 21 SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD ~ J' . i / By', ~ kL'~i~~<1-.s.,,-<~) APPROVED AS TO FORM: //( //'i J...-------, / / Board/Attorney / QUAIL RIDGE COUNTRY CLUB, INC. fJ~ I w:$ tJJ I By: APPROZ D BY: .....//~......~..//? . /. ..7~ /C--t~~ Ci~~/of/D~lraY/Beach, Mayor AJ?:pRO\T:ED BY V .., /-. ~. j// . ..ry- Mayor 4-9-97 ~euse/Quail.rdg/restatement.amd 15 Examrr B OPERATING RESTRlCTS Recipient shall maintain compliance with the following operating restrictions for protecting human health, welfare and safety, and the environment 1'\. ). The public shall be notified of the use of reclaimed water by posting advisory signs, notes on score cards or other methods in accordance with Chapter )7-6) 0.468 F AC. 2. Direct connections between the reclaimed water system and irrigation water system shall not be allowed without the use of appropriate bacJdlow prevention devices. 3. No cross-connection to potable water systems shall be allowed. 4. All reclaimed water valves and outlets sh~l be appropriately color coded and labeled in accordance with Chapter 17-6l0A70 FAC to warn public and employees that the water is not intended fOf drinking. 5. Setback distances to potable water supply wells and the use of low trajectory Dazzles shall be in accordance with Chapter 17-6l0A71 FAC. 6, The use of reclaimed water shall be consistent with all applicable federal, sUlie, and local Jaws and reQUlarions. ~:,.. Exhihit B January ]995 ^:>!S7~\DJiIBJT.B P.~ 1 of 1 -' ~ => Q ~ 5 Ii: ... ... on .... ./ a c o ~ ~ o u ~, 6 ~ c c ,_ C Q 0 0 o n. 0 .\! <:> .r: 8- <3 LJ o o J ~ . c o ~~ r...... U Q)~l;:)Q} C> CJlU- ~ C 1J c :':! ii: >. "0 0 .0 \...cvO r=~E4- x 0 .- 0 w:Jao at', -0...... '-' Cl) c 0:: .0 n.. ~ Q \L ~. ~ ~i "" <:> '0 " \J ~.. .: v i D <Xl -0 I) .6 G u .... N .'.,ti "'- ~~u r!S '" It: ~ 5 r .. .lJ ~ " ~ "5 ;g ~ ... "- ~ ~ --J EXHIBIT D Enclosure fA Board sh{lll monitor the reclaimed water for the following parameters and agrees to di\'en reclaimed water v.hich exceeds the specified limits. Parameter Sampling Frequency Limit'l) T urbidif) Continuous 2 NTU Chlorine Residual Continuous 1 (minimum) C~oride Continuous 350 CBODC'I Daily 20 TSS(3) Daily 5 pH Hourly 6 to 7.5 units'S) 7.8 units(6) Aluminum Annual LO Arsenic Annual 0.10 Beryllium Annual 0.10 Boron Annual 0.50 Cadmium Annual 0.01 Chromium Annual 0.1 Cobalt Annual 0.05 Copper Annual 0.2 Fluoride Annual 1.0 Iron Annual 5.0 Lead Annual 5.0 Lithium Annual 2.5 Manganese Annual 0.2 Molybdenium Annual 0.005 Nickel Annual 0.02 Selenium I Annual 0.02 Vanadium t Annual 0.10 Zinc Annual 2,0 Bicarbol}ate (as CaCO) Annual 120 Calcium Annual (4) ~gnesium Annual (4) Sodium Annual (4) Sodium Adsomtion Ratio Annual 6 un its (l) (2) (3) (4) (5) (6) Maximum concentration expressed in mgIL unless noted. Carbonaceous Biochemical Ox'ygen Demand (CBOD). Total Suspended Solids (fSS). Information used in calculation of Sodium Adsorption Ratio (SAR). Daily average 2-Hour duration W:..J'<1~\[XHIBI1.D Exhibit D January 1995 . h~ lofl AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD AND QUAIL RIDGE COUNTRY CLUB CONCERNING DELIVERY AND ACCEPTANCE OF RECLAIMED WATER THIS AGBEEMENT is made and entered into on this /~!~ day of lk.~ U.H..... 1996, by and between South Central Regional wai;tewate:rj Treatment and Disposal Board, a municipal corporation created pursuant to the laws of the State of Florida (hereinafter BOARD), and Quail Ridge Country Club, (hereinafter RECIPIENT). Accordingly, for and in consideration contained herein, mutual understandings contained herein, and other conSideration, sufficiency of which is hereby acknowledged the parties covenant and agree as follows: of the recitals and agreements the receipt and by the parties, SECTION 1. Recitals. The below recitals are true and correct and form a material part of this Agreement. 1.1 The parties hereto represent to one another that each has the full power and authority to enter into this Agreement and to carry out their respective obligations thereunder. The BOARD is cOmposed of the Cities of Boyntou Beach and Delray Beach (the "Cities"), pursuant to an Interlocal Agreement entered into pursuant to Chapter 163, Florida Statutes. 1.2 The parties recognize that reuse of Reclaimed Water is in the public interest, as it recaptures an otherwise wasted and unused water resource. The BOARD owns and operates wastewater facilities which it proposes to ~pgrade to produce Reclaimed Water suitable for irrigation of areas, such as golf courses, parks, school grounds and cemeteries, and RECIPIENT is Willing to accept Such Reclaimed Water for irrigation purposes in the public interest. 1.3 In a norma). year, RECIPIENTS will irrigate appro~imately 240 days and most of RECIPIENT'S daily requIrements will be needed during approximately 12 hours commencing about sundown. BOARD agrees to use its best efforts to supply Reclaimed Water on demand to RECIPIENT up to the' 'volume and at the charge set forth in this Agreement. RECIPIENT has valuable golf cou-rses that require access to Such Reclaimed Water and has expended substantial money and effort and has foregone other avenues to meet its irrigation requirements in reliance on this Agreement. The BOARD is not required to upgrade its wastewater system to produce ReClaimed Water but is doing so in reliance Upon the RECIPIENT entering into this Agreement. 12-5-95 RRuSE/QUAILRIDGRIDELVERYoAGR 1 1.4 The RECIPIENT owns and controls land which is described in Exhibit "A" (the "Property"), attached and made a part hereof by reference. 1.5 RECIPIENT agrees to: (a) irrigate the Property using Reclaimed Water; (b) maintain the storage facility, if applicable, ponds and lakes, if applicable, pumps and irrigation system to be located on the Property from the point of delivery; and (C) upgrade its irrigation system when reasonable and economical to utilize the volume of Reclaimed Water accepted from. the BOARD and as required to meet any federal, state, or local requirements, (d) maintain compliance with the operating restrictions for protecting human health and the environment attached thereto as Exhibit "B". 1.6 Recipient shall accept tpe Reclaimed Water delivered by the BOARD and use it for irrigation of the Property. The BOARD shall be deemed to be in possession and control of the Reclaimed Water until it shall have. been delivered to the RECIPIENT at the Point of Delivery. After Such d~livery, the RECIPIENT shall be deemed to be in possession and control thereof. 1.7 The RECIPIENT agrees to maintain all Federal, State and governmental permits issued to it and necessary to allow it to receive and utili~e the Reclaimed Water pursuant to the terms of this Agreement. 1. B The right of the RECIPIENT to sell, transfer or encumber the Property in areas irrigated with the Reclaimed Water shall not be restricted by this Agreement. This Agreement shall run with the land so long as the use of a major portion of the Property shall contLnue to be for golf course and related purposes. Any subsequent party in interest to such golf course or courses shall be obligated to receive and pay for ReClaimed Water under the same terms and conditions of this Agreement, unless modified by mutual consent of the BOARD and the buyer or transferee. - 1 .,9 METER. The design and construction of the metering facility shall be the responsibility of the BOARD and must be mutually approved in advance in writing by BOARD and RECIPIENT. The meter will be utilized to measure the amount of Rec1aimed Water delivered by the BOARD to RECIPIENT and the BOARD shall operate, maintain, cause to be calibrated, and repair said meter. 1.10 CONSTRUCTION. Upon completion of the engineering design of the metering facility, and the acceptance of same by both parties, the metering facility will be constructed by the BOARD and placed into service. 12-5-95 REUSR/QUAILRIDGR/DRLVERy.AGR 2 1.11 COSTS AND OPERATION. The BOARD shall bear the cost of constructing, owning and maintaining the Reclaimed Water meter and related appurtenances and the lines. interconnecting BOARD's system into the metering facility, including all valves and appurtenances up to and including the discharge flanges of the valves immediately downstream of the meter. The parties agree that the RECIPIENT shall have reasonable aCcess to the metering facility, to all other Reclaimed Water meters, check valves, and any Other appurtenances thereto, to verify flows, meter readings, meter calibrations, efficiency of the check valves, and any other perfonnance data necessary to the operations of the Interconnection facility upon reasonable advance notice to the Board. The metering device shall be tested and calibrated, at BOARD's expense, at least once per year and repaired if required. Any errors in meter reading and any discrepancy in meter results from a true and correct measure of Reclaimed Water flow to RECIPIENT shall be adjusted prOperly and retroactively to reflect the flow to RECIPIENT. Any inCorrect metering device shall be repaired forthwith by the BOARD. 1.12 This agreement has been dUly authorized by all named parties. Pursuant to Section 3 ( C) of the Interloc al Agreement dated December 26, 1974, between the City of Boynton Beach and the City of Delray Beach, this Agreement and all provisions thereof have been contractually approved by a majority vote of each City Council as the act of each City, br, if such approval has not already been obtained, such approval will be obtained and Certified to RECIPIENT befor~ this Agreement shall become effective. SECTION 2. Definitions. The parties agree that in cOnstruing this Agreement, the fOllowing words, Phrases and terms shall have the fOllowing meanings, unless the Context requires otherwise: 2.1 "Agreement" means this Agreement between BOARD and RECIPIENT. 2.2 . "FDEp. means tl!e Florida Department of Environmental Protection, and its successors. 2.3 "Fiscal Year" means October 1 to September 30 of the fOllowing year. ~~ ~ ; 2.4 "GPD" means gallons per day. 2.5 "Irrigation system" means those pump stations, lines, pipes, sprinkler heads, ponds' and lakes, storage facilities, if apPlicable, and pertinent equipment that are located on RECIPIENT's property. and used to store, Spray and irrigate with Reclaimed Water that has been treated in accordance with 12-5-95 REUSE/QUAILRIDGR/DELVERy.AGR 3 all applicable governmental regulations and in accordance with the terms and provisions of this Agreement. 2.6 "MGD" means million gallons per day. 2 . 7 "Point of deli very" means the point at which divides the BOARD's wastewater facilities RECIPIENT's irrigation system, or as otherwise engineering drawings approved by both parties. the meter from the noted on 2.8 "Reclaimed Water" means wastewater that has been treated in accordance with Section 3.4 of this Agreement. 2.9 "Reclaimed Water Disposal Facilities" means those facilities necessary for the storage, if applicable, transportation and disposal of wastewater previously treated in accordance with applicable local, state and federal standards and limitation at the plant to the standard of Reclaimed Water. These facilities include, but are not limited to, any Reclaimed Water transmission. facilities, irrigation systems and storage facilities, if applicable. 2.10 "Reclaimed Water Transmission Facilities" means the BOARD's facilities used to transmit Reclaimed Water. 2.11 "Storage Facilities" means those facilities which may be designed, permitted and constructed on the Property, if applicable, or upon the BOARD's property, if applicable, and which are necessary to store and hold Reclaimed Water in a manner that complies with regulatory requirements. 2.12 "Wastewater" means the product received by the wastewater treatment facility for treatment. . 2.13 "Wastewater Facilities" means the BOARD's plant located at 1801 North Congress Avenue, Delray Beach, Florida, and Reclaimed Water transmission facilities, including all interceptors, lines, pipes, meters, couplings, pumps, force mains, and appurtenant equipment necessary to treat and transmit the Reclaimed Water. SEC~ION 3. Grant of License and Easement. RECIPIENT hereby grants to BOARD an easement over the Property, including a 15 foot utility easement to be mutually agreed upon and located in:.the approximate location depicted on Exhibit "C" attached hereto, to allow construction, operation, maintenance and repair of the BOARD's Reclaimed Water transmission main to the point of delivery, and the right to transmit, deliver and dispose of Reclaimed Water through the irrigation system and storage facility, if applicable, on the Property in accordance with and subject to the following conditions: 12-5-95 REUSR/QUAILRIDGR/DELVERY.AGR 4 3.1 Desi n and installation of Certain Facilities. BOARD agrees to design, permit, install and operate improvements and additions at its existing wastewater treatment plant, and the BOARD's Reclaimed Water transmission facilities, and to Permit effluent disposal facilities in order to provide Reclaimed Water at the point of delivery. RECIPIENT agrees to design, permit, install and operate, at its sole expense, any storage facility, if applicable, and the irrigation system on the Property up to the point of delivery. 3.2 Permits and Approval for the Irriqation System. Recipient shall be responsible, in cooperation with Board, for obtaining and maintaining pecessary governmental permits and approvals in order to install and operate the irrigation system: provided, however, that Board shall be responsible for obtaining and maintaining all permits for Reclaimed Water disposal facilities. For all wastewater facilities located on its ~ide of the point of delivery, Board shall be solely responsible for obtaining, compiling, providing and complying with all monitoring, sampling, testing, and reporting requirements for the Reclaimed Water, which may be imposed by government law, rule, permit, or approval. Recipient shall grant Board upon reasonable advance notice to RECIPIENT access to the irrigation system as needed to aSSure continued compliance with applicable laws and regulations, including, but not limited to, any monitoring or testing requirements. 3.3 Delivery of Reclaimed Water. BOARD agrees to use its best efforts to make available and deliver in the volume a~q at the times requested, an annual volume of Reclaimed Water of at least 224 million gallons (MGY), with maximum volume any one day up to but not to exceed 1,600,000 (700,000 and 900,000 for north and south connections, respectively) gallons per day (GPD), at a rate of 3,333 (1,460 and 1,875 for north and south connections, respectively) gallons per minute (GPM), for use on the Property and, at its cost, to. connect the BOARD's Reclaimed Water transmission facilities to RECIPIENT's irrigation system at the point(s) of delivery agreed upon and as shown in Exhibit "C". Both RECIPIENT and BOARD recognize that water supply and-demand will vary depending on a number of factors, primarily climatic conditions. 3.4 Quali tv of Reclaimed Water. BOARD shall make aVq.:i;:lable to RECIPIENT ReClaimed Water of a quality consistent with the requirements of "public access" treatment levels as set forth in Chapter 62-610, Florida Administrative Code, or its successor Code proviSions, or of a quality consistent with more stringent requirements that may be ,imposed by any governmental agency having juriSdiction and legal authority. In recognition of the need to supply Reclaimed Water, the BOARD shall also be required to comply with effluent limitations set forth in Exhibit "D". All ReClaimed Water 12-5-95 REUSR/QUAILRIDGE/DELVERY.AGR 5 made available by BOARD under this Agreement shall, at a minimum, have been treated by advanced treatment methods to remove harmful levels of bacteria, viruses, and other constituents or pollutants which could constitute a danger to human health, and in accordance with all applicable federal, state and local laws, rules, regulations, POlicies, ordinances, resolutions, orders and pennits and the requirements of Rxhibit "D". BOARD shall provide continuous mpnitoring of chlorine and turbidity, as well as other required ground and surface water quality sampling and monitoring of Reclaimed Water as required by local, state and federal regulations and. by Exhibit "D". BOARD agrees to divert away as expeditiously as Possible, from the irrigation system, any Reclaimed Water which does not comply with the terms and conditions of this Agreement or which does not meet the applicable state, federal or local laws and regulations and to promptly and fully notify RECIPIENT of such action. Copies of all test results shall be available to RECIPIENT upon request. 3.5 Minimum Purchase of Reclaimed Water b RECIPIENT> Upon receipt of all necessary governmental permits and approvals by all parties and completion of construction of wastewater facilities and continuing for so long as. BOARD complies with the requirements set fOrth in this Agreement, REClP lENT has an bbliga tion to pay for at 1 east _~ mill ron I To '" ILL I ~ gallons annually of Reclaimed Water for spray irrigation on ~/_ the Property, subject to conditions as set forth in Section,~:; 3 - 3 of this Agreement. Notwithstanding anything to t,!e '':\^ ~ contrary, Recipient shall not be obligated to accept deli very . .~, of or pay for Reclaimed Water which does not comply with the terms and conditions of this agreement. Such exception to RECIPIENT'S obligation to accept delivery of such Reclaimed . Water by reason of the Board's failure to meet the water quality standards required in this Agreement shall relieve RECIPIENT of its obligation to pay BOARD for the minimum annual volume set forth above at the rates determined pursuant to Paragraph 5 below only to the extent that the BOARD shall not have made available to RECIPIENT such annual minimUm volume of Reclaimed Water meeting the requirements of this Agreement through the ~ompletion of the then current fiscal year >, Recipient shall not transfer the water provided by Board' to any third party or off of the Recipient's property which is the subject of this agreement. 3.7 Nothing in this Agreement shall be construed to give RECIPIENT any right. to the exclusive receipt of BOARD's Reclaimed Water SUpply. 12-5-95 REUSEIQUAILRIDGR/DRLVERY:AGR 6 J.8 The BOARD agrees that it will not enter into contracts with other recipients of Reclaimed Water for mOre than its daily supply capacity as the Same exists from time to time. SECTION 4. Term and Fees 4.1 Xerm. The Easement and this Agreement shall be in effect for a period of twenty. (20) years cOllllllencing on the date of execution of this Agreement. The term of the Easement and this Agreement shall be automatically extended for sUccessive periods of ten (10) years. each, upon the Same terms and conditions as herein provided, unless either party hereto notifies the other by certified mail at least three years prior to the expiration of the initial term of this Agreement or any renewal thereof, that this Agreement shall not be so extended. 4.2 Pavment of Fees. In return for and in consideration of BOARD's construction of facilities and delivery of Reclaimed Water; RECIPIENT agrees to pay BOARD a one-time connection fee of $8,600.00 ($4,300.00 each for north and south connections) and a volume charge of 20e for each 1,000 gallons of ReClaimed Water used, (the "Volume Charge) but on an annual basis not less than the above rate times the minimum quantity RECIPIENT has agreed to purchase under Section 3.5 together with a storage charge equal to 8e (the "Storage Charge") for each 1,000 gallons of Reclaimed Water, the Volume Charge for which is paid for by RECIPIENT, as provided above~< Such Storage Charge shall remain COnstant and shall not be adjusted during the term of this Agreement or any extension hereof. Payment of the connection fee shall be in one lump SUm no later than the COllllllencement of construction of the modification to the BOARD's wastewater f,!cilities for the treatment and production of Reclaimed Water. The Volume Charge shall remain constant until the expiration of the third ( 3) fiscal year from the COllllllencement of pumping (prOVided that if less than six (6) months expires between the time BOARD commences or makes available delivery of Reclaimed Water and the end of t}le first fiscal year, Such first year shall not COunt as the first fiscal year), after which the.. price'" will be redetermined as provided in Section 5. The BOARD shall render billings to RECIPIENT for the volume charge on a..monthly basis for such applicable charges On the basis of thef'greater of the actual Reclaimed Water del.ivered or the Volume charge for 1/12th of the minimum guaranteed annual volume agreed to be accepted by RECIPIENT purSUant to Section 3.5 above; provided that RECIPIENT shall pay no more, on a fiscal. year basis, than ( i) Such minimum annual guaranteed vol ume charge or ( ii) charges for Reclaimed Water actually accepted during the fiscal year, whichever is more. 12-5-95 RRUSE/QUAILRIDGR/DELVERY.AGR 7 4.3 In the event the BOARD shall not be able to deliver Reclaimed Water in the minimum volume agreed to in Section 3.5 of this Agreement, as a result of its inability to do so and through no action or inaction on the part of the RECIPIENT, the RECIPIENT shall be entitled to a credit for such shortage in the minimum agreed to volume (by a proportionate reduction) . SECTION 5. Future Adjustment of Price of Reclaimed Water. The Volume Charge shall be adjusted. after the first three (3) fiscal years as aforesaid upward or downward based on one-half (!) of the year-to-year change in the actual operating costs of producing, metering and delivering Reclaimed Water from effluent and transmitting it to the point of delivery for the RECIPIENT as it relates to the preceding year's Volume Charge, however, such Volume Charge shall never be less than 20~ per thousand gallons nor shall an increase be applied if the actual operating costs shall be less than said 20c per thousand gallons. The first such adjustment shall occur effective the first day of the fourth. fiscal year following the initial delivery of Reclaimed Water to RECIPIENT and shall reflect one-half (!) the. relative increase or decrease in actual operating costs incurred Py the BOARD during the second fiscal year of delivery of Reclaimed Water to RECIPIENT as compared to the third fiscal year and for each subsequent year thereafter as compared to the previous year. The actual operating cost and change therein shall be the basis for determining the index for making the adjustments in the Volume Charge.. Actual operating costs ("Actual Operating Costs") shall be determined in conformity with generally acceptea accounting principles consistently applied, except the depreciation of plant and equipment and any other provision for capita~ recovery, including interest on long term debt, shall not be included as operating costs, as such costs are properly allocable to wastewater customers:. Any increase or decrease in the Volume Charge shall be determined as soon as reasonably practicable and shall be effective retroactive to the scheduled date of adjustment and a sum due to the BOARD as a result of the retroactive effect of such adjustment or the credit due the .RECIPIENT, if applicable, shall be reflected in the next billings regularly submitted by BOARD to RECIPIENT as provided in Subparagraph 5.4. .... 5.1 BOARD personnel shall establish, or cause to be est~lished, and maintain an accounting system in which such current operating costs are recorded monthly in separate accounts from sewage processing accounts. Costs shall be recognized on a first-in first-out basis. The BOARD personnel shall prepare and preserve any studies relating to the allocation of operating costs on other than an actually incurred basis. By way of example, the parties agree that all operating and maintenance costs of labor, chemicals and power, 12-5-95 REUSR/QUAILRIDGE/DELVERY.AGR B permits, regulatory requir~nents, legal, engineering, administration, testing, meter calibration and Contract services may be allocated based on appropriate data or stndies. Such current operating costs shall be recorded on a consistent baSis from month to month and year to year, and the total for each fiscal year shall be used to calculate a cost per thousand gallons of Reclaimed Water delivered beginning with the second fiscal year after the plant starts to deliver Reclaimed Water to RECIPIENT. 5.2 By way of example, if delivery begins On October 6, 1996, the third fiscal year thereafter wonld be October 1, 1999 to September 30, 1999. Assume that the actual cost of producing Reclaimed Water for the fiscal year October 1, 1997. through September 30, 1999 was 21~. Further, assume that the Actual Operating Cost of producing and delivering Reclaimed Water to RECIPIENT during the seCond fiscal year to the end of the third fiscal year (October 1, 1997, through September 30, 1999) increased from 21~ per thonsand gallons to 23~ per thonsand gallons. The index for increase would be calcnlated by diViding the. base cost of 2l~ per thousand gallons into one-half (f) the 2~ increase in cost, resulting in an increase of 4.76% to the previous years' Volume Charge of 20~ per thousand gallons for the fourth fiscal year, equal to 20.95~ per thousand gallons (1 x 2 ~ 1 + 21~ ~ .0476, then 20~ x 1.0476 = 20.950). 5.3 As soon as reasonably practical, after each fiscal year for which the Contract price is sUbject to adjustment .~. the BOARD shall prepare a statement showing in reasonable detail the actual operating costs to produce Reclaimed Water from effluent for the latest two fiscal years. For each such year, the statement shall also show (1) the nnmber of gallons in thousands of Reclaimed Water delivered to Reclaimed Water users, (2) the Cost per thousand gallons 0< Reclaimed Water calculated by diViding such.operating costs by such gallons, (3) the calculation of the ratio of change in cost per thousand gallons from the earlier year to the later year, and (4) the calculation of the adjusted price for the later year. This statement shall be deemed to be the responsibility of the BOARD, and the BOARD's Executive Director shall attest in writIng. to the propriety of the Costs and calcUlations shown thereon. .,; 5 . 4 By January 15 of each year, the BOARD' S Executive Director shall Submit to RECIPIENT the supplemental statement set forth in the. preceding paragraph, together with the attestation thereto by the BOARD. At the same time, the BOARDS Executive Director shall submit to RECIPIENT a bill or credit Showing (l)the amount paid by the RECIPIENT for Reclaimed Water delivered in the current fiscal year, (2)the amount payable for Reclaimed Water delivered in the current 12-5-95 RRUSRIQUAILRIDGR/DRLVERY0 AGR 9 fiscal year based on the adjusted price for the year as set forth above, and (3)the difference. Any such difference shall be either paid promptly by the RECIPIENT, or shown as a credit in the next billing to the RECIPIENT. 5.5 For billing purposes only prior to the determination of actual costs for adjusting the Volume Charge, during each year subject to price adjustment, the BOARD may use a tentative price per thousand gallons based on using budgeted costs for the current year in the price adjustment calculation set forth above. 5.6 RECIPIENT, at its own expense, has the option of examining the financial statements, general books and related records, and production records of the BOARD. 5.7 Notwithstanding the above provlslons, the price paid by the RECIPIENT for Reclaimed Water shall be adjusted downward in the event the BOARD offers Reclaimed Water to any other non-governmental customer(s) upon substantially similar terms and conditions for the same use.of the Reclaimed Water at a lower charge than RECIPIENT is or will be paying under this Section 5. Such downward adjustment shall be made to guarantee RECIPIENT that no other user of Reclaimed Water for similar purposes shall receive a more favorable charge than will also be given to RECIPIENT under similar circumstances. 5.8 To the extent that the BOARD receives governmental or environmental noncapital improvement subsidies which are provided to the BOARD for encouraging wastewater reuse and which are intended to be applied pursuant to the terms of such grant or subsidy to the operational costs of the Reclaimed Water facility, as opposed to capital improvements or expansion of such Reclaimed Water facility, the BOARD will apply such funds, to the extent allowed,cto its Reclaimed Water facility operating costs. 5.9 The parties to this Agreement agree and recognize that RECIPIENT is under no legal or other obligation to enter into this Ag.:reement for reuse of wastewater. RECIPIENT currently has operating permi ts from FDEP and the Water Managem~nt District to pump surface and ground water for all RECIPIENT'S irrigation needs and RECIPIENT'S costs to pump this surface and ground water is substantially less than the cha.tfges RECIPIENT will pay for Reclaimed Water under this Agreement. RECIPIENT'S only consideration and motivation to enter into this Agreement is to insure sufficient irrigation water by receiving its full allocation of Reclaimed Water on demand in accordance with the rate and delivery conditions set forth in this Agreement, free from adverse environmental or climatic impact. RECIPIENT has determined that the benefits of this Agreement are only marginally economically feasible. 12-5-95 REUSE/QUAILRIDGE/DELVERY.AGR 10 Therefore, if as a result of any action by the BOARD, the City of Delray Beach or the City of Boynton Beach, RECIPIENT would be required to pay charges in eXcess of those established under Section 5, then RECIPIENT shall have the option of canceling this Agreement upon sixty (60) days advance written notice to the BOARD. SECTION 6. Inspec~ion. BOARD shall have the right to enter RECIPIENT's property, upon proper identification and at any reasonable time, in order to inspect the irrigation system as may be necessary or desirable for the operation, safety, protection, or preservation thereof, to determine compliance with any law, order or regulation of any governmental authority haVing juriSdiction, and for sampling at any monitoring wells located on the property. RECIPIENT shall have the'right to enter the BOARD's plant and properties and the right of access to its wastewater facilities and records, at any reasonable time, for the purpOSe of determining whether the BOARD is incompliance with this Agreement. SEC,!,ION 7. Assignments. This Agreement can be assigned by RECIPIENT only with the prior written approval of BOARD, but such approval shall not be unreasonably Withheld, provided the assignee shall assume this Agreement and shall demonstrate to BOARD its financial ability to comply with the provisions hereof. SECTION 8. Noi:ices; Proper Form. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delivered when (1) hand dellvered to the. official hereinafter deSignated, (2) upon receipt of such notice when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to a party at the address set forth opposite the party' name below, or at such other address as the.. party shall have specified by written notice to the other party delivered in accordance herewith: BOARD \" '-. -.,. SOUTH CENTRAL REGIOnAL WASTEWATER TREATMENT AND DISPOSAL BOARD Executive Director 1801 North Congress Avenue Delray Beach, FL 33445 RECIPIENT QUAIL RIDGE COUNTRY CLUB C/O Club Manager 3715 Golf Road Boynton Beach, FL 33436 12-5-95 REnSBIQUAILRIDGR/DELVERY.AGR 11 COpy TO: Boynton Beach City Manager P.O. Box 310 Boynton Beach, FL 33425-0310 COpy TO: Delray Beach City Manager 100 N.W. 1st Avenue Delray Beach, FL 33444 COPY TO: Robert W. Federspiel, Esq. 501 East Atlantic Avenue Delray Beach, FL 33483 SECTION 9. Notices; Default. Each of the parties hereto shall give the other party written notice of. any defaults hereunder and shall allow the defaulting party 30 days from the date of receipt to cure such defaults, except failure to deliver water on demand. SECTION 10. Default by Either Party. If any party hereto fails to perform or comply with. any of the conditions of this Agreement, and if the nonperformance shall continue for a period of thirty (30) days after the written notice thereof to the non-performing party, or if the performance cannot be reasonably completed within the 30-day period, or if the non- performing party does not in good faith commence performance within the 30~day period and does not diligently proceed to complete performance, the non-performing party shall be in default or breach of this Agreement. SECTION 11. Indemnification. In the event RECIPIENT shall fail to comply with any reuse water rule or regulation of any Federal, State or County or local agencies, except BOARD, or violate any permit granted with regard to the use of the irrigation system on the RECIPIENT's property, then RECIPIENT sha~l . indemnify the BOARD, its officers, governing board, employees and agents against all claims, demands, causes of actions, suits, judgments, fines, penalties, or losses, inqJ.uding all costs suffered or incurred by the BOARD by reason of such failure. In the event the BOARD shall fail to comply with any rule, regulation, order of any Federal, State or County or local agency, or fail to deliver water meeting the quality standards provided by this Agreement, then the BOARD shall, to the extent allowed by law, indemnify the RECIPIENT, its officers, board of directors, employees and agents against all claims, demands, causes of actions, suits, 12-5-95 REUSE/QUAILRIDGE/DELVERY.AGR 12 judgments, penalties, fines, or losses suffered or incurred by the RECIPIENT as reason of such failure. SECTION 12. Remedies of Defaul~. If either party hereto shall be in default hereunder as set forth in Section 10, then the other party shall have the following remedy, bring suit for the breach which has ocCurred without affecting the obligations of the party to perfonn the balance of the Agreement. The parties shall have the right not only to injunctive relief, but also to recover any damages which a party may incur as a result of the breach of this Agreement by the other party. The parties further agree that any litigation shall be brought in Palm Beach COunty, Florida, only, and the parties agree that the proper venue for any such action would only be in Palm Beach County, Florida. The parties further waive any right to Jury trial they may have in any action among them involving this Agreement or the alleged breach thereof. SECTION 13. Disclaimers of Third Par~y Beneficiaries. This Agreement is solely for the benefit of the fonnal parties hereto and no right or cause of action shall aCcrue upon or by reason hereof or to or from or for the benefit of any third party not a formal party hereto. SECTION 14. Severabi1i~y. If any part of this Agreement is found invalid or unenforceable by any court, Such invalidity or unenforceability shall not affect the other parts of this Agreement. SECTION 15. Applicable Law. This Agreement and the provisions contained herein shall be construed, Controlled and interpreted according to the laws of the State of Florida. SECTION 16. En~ire Agreeaen~. This agreement Contains the entire Agreement between the parties hereto with respect.to this transaction and supersedes all prior negotiations and all prior written or oral understandings. SECTION 17. Amendmen~~. This Agreement may only be amended, supplemented or discharged by an instrument in writing signed by all parties hereto. SECTION 18. Recorda~ion. This Agreement or a mutually agr~~able memorandum thereof will be recorded in the public records of Palm Beach County, Florida. SECTION 19. EX~en~ of Agreemen~. Each party shall advise the other party, in writing, as to the status of its construction document preparation and construction of aSSociated improvements on a monthly basis to ensure that both parties' activities are progressing with reasonable diligence. 12-5-95 REUSR/QUAILRIDGR/DELVERy.AGR 13 SECTION 20. Completion Date. The Board agrees to use its best efforts have its Reclaimed Water facilities completed and available for use for RECIPIENT and RECIPIENT agrees to use its best efforts to have its Irrigation System complete and to accept delivery of Reclaimed Water from the BOARD on or before November 1, 1997, subject to matters beyond the reasonable control of either party. SECTION 21. Cross-Connection. RECIPIENT desires to connect its south course irrigation system with its north course irrigation system, which will require crossing the Woolbright Road and L-26 canal. In that the BOARD will also have to cross both rights-of-way to connect its reclaimed water transmission facilities to RECIPIENT's irrigation system, the BOARD agrees to obtain a price from its Contractor for the installation of such pipe for RECIPIENT. The RECIPIENT shall then be authorized to either contract directly with the BOARD's Contractor for such pipe installation or to obtain its own contractor. SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISroSAL BOARD (- --......... , ) \ d. \ '. '\ '---.~--, .~ t\ "-\-A V \ r\. ~----- ch'ai'rritan " f~ \. \ -", \ ~) By: ATTESTED BY: A~:~~?;f) //~"/ .d' /f./;>"$-j?/Y'~ ,/:-~;.&tetary /' ~:/'~'4._ /1 - ~~~ p/V /~a.. -~- ,...r' APPROVED AS TO FORM: /1 ~! Board "'Attorney { QUAIL /V;6/9r- By: AP~.ROVE!l:--~~: . .dte~ L /.~~4..-~---~ C~~y 6f Deftay Beach, Mayor APP::dF;:2 City of Boynton ach, Mayor 12-5-95 REUSE/QUAILRIDGE/DELVERY.AGR 14 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY (To Be Provided By Recipient) QUAIL RIDGE (A PLANNED UNIT DEVELOPMENT) PLAT NO. 1 BEING A SUBDIVISION OF A PORTION OF THE NE 1/4 OF SE~TION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, N\lD A PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST, \lILLAGE OF GOLF ~AND PALM BEACH COUNTY, FLORIDA PLAT NO.2 BEING A SUBDIVISION OF A PORTION OF THE NE 1/4 OF SECTION 36, TOWNSHIP 45 SOUTH RANGE 42 EAST, PALM BEACH COUNTY. FLORIDA PLAT NO.3 BEING A SUBDIVISION OF A PORTION OF THE N 1/2 OF SECTION 36. TOWNSHIP 45 SOUTH, RANGE 42 EAST, VlLLAGE OF GOLF AND PALM BEACH COUNTY, FLORIDA PLAT NO. 3A BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF SECTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, PALM -~"- BEACH COUNTY, FLORIDA PLAT NO.4. BEING A SUB.DIVISION. OF A PORTION OF THE N 1/2 OF SECTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, PALM BEACH COUNTY, FLORIDA , , PLAT NO.5 BEING A SUBDIVISION OF A PORTION OF THE NE 1/4 OF . - SECTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST AND A PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH, . RANGE 43 EAST PALM BEACH COUNTY, FLORIDA. PLAT NO. 6 BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST, VILLAGE OF GOLF AND PALM BEACH COUNTY, FLORIDA PLAT NO.7 BEING A SUBDIVISION OF A PORTION OF THE NORTH ONE-HALF OF SECTION 31. TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA Page 1 of 3 - Exhibit 'p 5/l011g~ PLAT NO.8 BEING A SUBDIVlSION OF A PORTION OF THE NORTH ONE-HALF OF SECTION 31, TOWNSHIP 45 SOUTH. RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA PLAT NO. 9 BEING A SUBDIVISION OF A PORTION OF THE NORTH ONE-HALF OF\SECTION 31. TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA PLAT NO. 10 BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST AND A PORTION OF THE NE 1/4 OF SECTION 36, TOWNSHIP 4S SOUTH, RANGE 42 EAST, PALM BEACH COUNTY, FLORIDA PLAT NO. 11 BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH, RANGE~43 EAST, PALM BEACH COUNTY, FLORIDA PLAT NO. 12 BEING A SUBDIVISION OF A PORTION OF THE NE 1/4 OF SECTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, PALM BEACH COUNTY, FLORIDA . PLAT NO. 13 BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA PLAT NO. 14 IN SECTION 30, TowNsHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF TRACTS 105, 119, 120 AND PORTIONS QF TRACTS 73,74,87,88, 106, 107, 117 AND 118 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS PLAT NO. 15 IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF PORTIONS OF TRACTS 53, 54, 75, 76. 85 AND 86 PALM BEACH FARMS COMPANY PLAT NO.8. SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS Page 2 of 3 - Exhib 5110/ PLAT NO. 16 IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTI, FLORIDA, BEING A RE-PLAT OF PORTIONS OF TRACTS 73, 74. 75, 86, 87 Al'JD 88 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH - . , RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS "" PLAT NO. 17 IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORlDA, BEING A RE-PLAT OF PORTIONS OF TRACTS 85,86,87, 106, 107, 108, 117 AND l18 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST. PLAT BOOK 5, PAGE 73 AND OTHER LANDS PLAT NO. 18 IN SECTION 30, TOWNSHIP 45 SOUTH; RANGE 43 EAST, PALM BEACH COUNTY, FLORlDA, BEING A RE-PLAT OF PORTIONS OF TRACTS 51,52,53,54,76,77,78, 84 AND 8 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS PLAT NO. 19 IN SECTION 30, TOWNSHIP 45 SOUTH; RANGE 43 EAST, 'PALM BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF TRACTS 19, 20, 45 AND 46 AND PORTIONS OF TRACTS 12, 13, 14, 21, 43, 44, 51, 52, 53 AND 54 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS -. PLAT NO. 20 IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTI, FLOR.IDA, BEING A RE-PLAT OF TRACTS 22,41. 42.,:.AND PORTIONS OF TRACTS 11, 12,21, 43,53,54,55 AND 56 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS PLAT NO. 21 IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF TRACTS 115, 116, 110, 109,83 AND PORTIONS OF TRACTS 117, 108,84,85, 78,77,51 AND 52 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS Page 3 of 3 - Exhibit t:::11C\Ir EXHIBIT B OPERA TINe RESTRlCTS Recipient shall maintain C<lmpliance wid, the fOllowing operating restrictions for protecting human health, welfare and safety, and the environment "" I. ne public sball be notified of the use of reclaimed water by posting advisory signs, notes on score cards or other methods in accordance with Chapter 17-6J0.468 FAC 2. Direct C<lnnections between the reclaimed water system and irrigation water system shall not be allowed without the use of appropriate backflow prevention devices. 3~ No cross-connection to potable water systems shall be aJJowed. 4. All reclaimed water valves and outlets sb~l be appropriately color coded and labeled in accordance with Chapter J7~ 10.470 F AC to warn public and employees that the water is not intended for drinking. 5. Setback distances to potable water supply weJJs and the use of low trajectory nozzles shall be in accordance with Chapter I 7-6 lOA 7 I FA C 6. The use of reclaimed water shaJJ be consistent with all applicable federal. sLate, and local laws and re~lations~ " A:.~5U\EXHmJT.B Exhil:>it B January] 995 P.~ ) of J v i.. L v ~. D .0 a u II) '6 8,~ f! .5 ::J'~8:> lb Oir 8 n it: . -' ~ ::> Q , ~ 6 Ii: ..,. I- '" ... "5 . ~ ~ u ... "- ~ 7 .... .Jj .(.'0111/1 EXHIBIT D Enclosure fA' Board s~11 monitor the reclaimed water for the follo"'.ing parameters and agrees 10 divert reclaimed water which C).ceeds the specified limits_ Parameler Sampling Frequency Limit'J) T urbidit} Continuous 2 NTV Chlorine Residual Continuous (minimum) CJMoride Continuous 350 CBODG) Daily 20 TSS(3) Daily 5 pH Hourly 6 10 7.5 unit5I~) 7.8uni15(6) Alumiimm Annual LO Arsenic Annual O.lO Beryllium Annual 0.] 0 Boron Ann ual 0.50 Cadmium Annual 0.01 Chromium Annual 0.1 Coball Annual 0.05 Copper Annual 0.2 Fluoride Annual LO Iron Annual 5.0 Lead Annual 5.0 Lithium Annual 2.5 Manganese Annual 0.2 Molybdenium Annual 0.005 Nickel Annual 0.02 Selenium Annual 0.02 Vanadium Annual 0.]0 Zinc Annual 2.0 BicarbQ}1ale (as CaCO-) Annual 120 ." ..). (4) Calcium Annual Magn..esium Annual (.4) Sodium Annual (4) Sodium Adsorolion Ratio Annual 6 unilS (l) (2) (3) (4) (5) (6) Maximum concentration expressed .in mgIL unless noted. Carbonaceous Biochemical O),:ygen Demand (CBOD). Total Suspended Solids (fSS). Information used in calculation of Sodium Adsorption Ratio (SAR). Daily average 2-Hour duration W:..7~7~\EXHIBI1.D Exhibit D January J 995 P.&~ J of J , ~'\ 'r :_,0..,,,,, / \ ! . ;~ t':'\:l J", ~\ f "c" '.."; " ;/..,J J-/~")~O i~",;~~>r CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORlVl VI.-CONSENT AGENDA ITEM C.2. Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office [g] August 2, 2005 July 18,2005 (Noon.) 0 October 5, 2005 September 19,2005 (Noon) 0 August 16,2005 August 1,2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon) 0 September 6, 2005 August 15,2005 (Noon) 0 November 1,2005 October 17,2005 (Noon) 0 September 20, 2005 September 6, 2005 (Noon) 0 November 15, 2005 October 31, 2005 (Noon) .-, :-J .'- ~_c~.-~ ( cC --.. , , 0 Administrative 0 Development Plans NATURE OF [g] Consent Agenda 0 New Business AGENDA ITEM 0 Public Hearing 0 Legal 0 Bids 0 Unfmished Business 0 Announcement 0 Presentation 0 City Manager's Report ..) -- 0--\ '9 . > r..:J r-"' _f - ~ ...- -.n .-n c::> _rn OJ? ;._.\~ :;l- .- L"; RECOMMENDATION: Motion to approve and execute by resolution Amendment No. 001 (Exhibit 'A') to the Interlocal Agreement between the City of Boynton Beach and Palm Beach County regarding the Lake Worth Lagoon Partnership Program. EXPLANATION: The Utilities Department received grant approval from the Lake Worth Lagoon Grant Program, managed by Palm Beach County and funded by the Florida Department of Environmental Management. The grant program focuses on storm water discharged into the Lake Worth Lagoon and storm water improvement projects that will improve the water quality of the lagoon. The storm water improvement plan for the INCA neighborhood project was approved for this reimbursable grant in the amount of $500,000. The INCA project is located on NE 7th Street between NE 10th Avenue and NE ih Avenues. Permits required by the South Florida Water Management and the U.S. Army Corp. of Engineers are in place and we anticipate that construction will begin by the end of July or early August, 2005. S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM PROGRAM IMPACT: Agreement No. S0089, Amendment No. 001 (Exhibit 'B') revises the original agreement with the addition of Paragraph 23 as follows: "Grantee (Palm Beach County Board of Commissioners) funds have been used for the acquisition of land for this project. The Grantee agrees that the funds used to purchase the land shall not be used as match to any other Agreement (Lake Worth Lagoon Grant Partnership) supported by State or Federal funds." Since this amendment is retroactive to the date of the original agreement, it applies to all grant funding for storm water improvements under the Lake Worth Lagoon Grant Partnership. FISCAL IMPACT: Amendment No. 001 will have no Fiscal Impact on this project. The City must verify expenditures of $900,000 in matching funds to request payment for all or any portion of the $500,000 grant funding. The construction bid for the INCA project, awarded by the City Commission on June 21,2005 for $4,130,097 included approximately $3,000,000 for storm water improvements making it unnecessary to request payment for land acquisition costs. By comparison, the city recently received reimbursement of $169,647.46 under this same grant for work related to the Twenty Outfall Structures Storm Water Improvement project. AL TERNA TIVES: There is no alternative. If the city includes land acquisition costs as a portion of matching funds for t is project, se costs would be denied. Kofi eng Director of Utilities fffJM ;k~~$ . Kurt Bress r ity Manager Utilities Department Department Name Attachments: Exhibit' A' - Amendment No. 001 for execution Exhibit 'B' - DEP Agreement No. S0089 bc: Kofi Boateng, Director of Utilities Paul Fleming, Sr. Project Manager Barb Conboy, Manager, Utilities Admin. PMT File S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM. DOC 1 RESOLUTION R05- 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, 4 FLORIDA, AUTHORIZING EXECUTION OF AN 5 AMENDMENT NO. 001 TO THE INTERLOCAL 6 AGREEMENT BETWEEN THE CITY AND PALM 7 BEACH COUNTY FOR A LAKE WORTH LAGOON 8 PARTNERSHIP PROGRAM REIMBURSABLE GRANT 9 IN THE AMOUNT OF $500,000 FOR THE NE 7TH 10 STREET STORMW A TER IMPROVEMENTS PROJECT; 11 AND PROVIDING AN EFFECTIVE DATE. 12 13 WHEREAS, the Utilities Department has received grant approval from the 14 Lake Worth Lagoon Partnership Grant Program managed by Palm Beach County 15 and funded by the Florida Department of Environmental Protection; and 16 WHEREAS, the grant is to be applied to the Stormwater improvement 17 program planned for the INCA neighborhood located on NE 7'h Street between 18 NE I Olh Avenue and NE 7'h Avenues; and 19 WHEREAS, Amendment No. 001 to the Interlocal Agreement will add 20 language to restrict grant funds used for land acquisition from being used as match 21 to any other Agreement supported by State or Federal funds. 22 NOW, THEREFORE, BE IT RESOLVED BY THE CITY 23 COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 24 Section 1. The foregoing "Whereas" clauses are hereby ratified and 25 confirmed as being true and correct and are hereby made a specific part of this 26 Resolution upon adoption hereof. 27 Section 2. Upon recommendation of staff, this Commission does 28 hereby authorize the City Manager to execute Amendment No. 001 to the 29 Interlocal Agreement between the City and Palm Beach County for a Lake Worth S:\CA\RESO\Agreements\lnterlocals\lnterlocal- INCA Stormwater Grant Amendment.doc 1 Lagoon Partnership Program reimbursable grant in the amount of $500,000 to be 2 applied to the Stonnwater improvement program planned for the INCA 3 neighborhood located on NE ih Street between NE lOth A venue and NE ih 4 Avenues, which is attached hereto as Exhibit "A". 5 Section 3. That this Resolution shall become effective immediately 6 upon passage. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 PASSED AND ADOPTED this _ day of August, 2005. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commi ssi oner Commissioner ATTEST: City Clerk (Corporate Seal) S:\CA\RESO\Agreements\lnterlocals\lnterlocal - INCA Stormwater Grant Amendment.doc EXHIBIT 'A' INTERLOCAL AGREEMENT BETWEEN PALM BEACH COUNTY AND THE CITY OF BOYNTON BEACH AGREEMENT #R2003-1556 NE 7th Street Stormwater Improvements AMENDMENT NO. 001 GRANTEE CITY OF BOYNTON BEACH DEPARTMENT OF UTILITIES 124 E. WOOLBRIGHT ROAD BOYNTON BEACH, FLORIDA 33435 ...c. THIS AGREEMENT, entered into on the 19th day of August, 2003, is hereby revised as follows: · Exhibit B is hereby revised to include the attached Amendment No. 1 to DEP Agreement No. S0089. All other terms and conditions of the Agreement shall remain unchanged. CITY OF BOYNTON BEACH PALM BEACH COUNTY, FLORIDA BY ITS BOARD OF COUNTY COMMISSIONERS By: By: Tony Masilotti, Chairman Date Mayor Date ATTEST: ATTEST: By: By: Sharon R. Bock, Clerk Date Date APPROVED AS TO FORM AND LEGAL SUFFICIENCY: APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: By: i~ Town's Attorney Assistant Gounty Attorney APPROVED AS TO TERMS AND CONDITIONS: By: Director, Department of Environmental Resources Management T:\eer\coastal\Lake Worth Lagoon\DEP Grants\02-03S0089\B-Beach\InterlocaI\IA-amend.doc EXHIBIT 'A' INTERLOCAL AGREEMENT BETWEEN P Al,M BEACH COUNTY AND THE CITY OF BOYNTON BEACH AGREEMENT #R2003-1556 NE ih Street Stormwater Improvements AMENDMENT NO. 001 GRANTEE CITY OF BOYNTON BEACH DEPARTMENT OF UTILITIES 124 E. WOOLBRIGHT ROAD BOYNTON BEACH, FLORIDA 33435 THIS AGREEMENT, entered into on the 19th day of August, 2003, is hereby revised as follows: . Exhibit B is hereby revised to include the attached Amendment No. 1 to DEP Agreement No. S0089. All other terms and conditions of the Agreement shall remain unchanged. CITY OF BOYNTON BEACH PALM BEACH COUNTY, FLORIDA BY ITS BOARD OF COUNTY COMMISSIONERS By: By: Mayor Date Tony Masilotti, Chairman Date ATTEST: ATTEST: By: By: Date Sharon R. Bock, Clerk Date APPROVED AS TO FORM AND LEGAL SUFFICIENCY: APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: By: Town's Attorney Assistant County Attorney APPROVED AS TO TERMS AND CONDITIONS: By: Director, Department of Environmental Resources Management T:\eer\coastal\Lake Worth Lagoon\DEP Grants\02-03S0089\B-Beach\Interloca1\IA -amend. doc Department of Environmental Resources Management 323 Belvedere Road. Building 502 West Palm Beach. FL 33406.1548 (561) 233.2400 FAX: (561) 233.2414 www.pbcgov.com . Palm Beach County Board of County Commissioners Tony Masilotti, Chairman ,. Greene. Vice Chairperson Karen T Marcus Jeff Koons Warren H. Newell Mary McCarty Burt Aaronson County Administrator Robert Weisman "An Equal Opportunity Affinnative Action Employer" @ printBd on fBCyclBd paps, EXHIBIT 'B' June 7, 2005 rm~@~DW~@ JUN " r\ . >.) Paul M. Fleming City of Boynton Beach Department of Utilities J 24 E. Woolbright Road Boynton Beach, Florida 33435 BOYNTON BEACH UTILITIES Dear Mr. Fleming~ SUBJECT: LAKE WORTH LAGOON C1RANT FROGRAM AMENTIMENTS TO INTERLOCAL AGREEMENTS Enclosed are two copies of Amendment No. I to the Inttdocal Agreem(;,-.i ;";0 R2003-1557. This amendment upon execution will add the fee em modifications to the DEP Agreement No SOOlN The amendmenT to the DEP Agreement indudes language to restrict grant fnnds u$cd for land acqulf-:ition from being used as match to any other /\ ~n'ement supported hy State OJ Federal funds and standard language rdattd te 8pf,cic:~~i audit requiH;men~.", Please bave an authorized repn-:sentativ,:; ~hr the Ciry rev 11;':"1 and ~)g(1 tbe e~}Q.S€d amendments and return heth oIi(~in,"J d~:,~'.t;m\?nts.s'lith .sigllann~s 1'.0 th~ letterhead address. Vou af~. advi>.;e.t to keciJ a (';'JP}{ of th.i' c''\.::i:utcd amendments fer your records If you have any questions, please call me ,], S6 ;"2 B-2M)(i or MichatJ Stahl dt 561/233-2512. Q Richard E. Walesky, D;rector Environmental Resources Management REW:ms Enclosure ce. Ann Helfant, PRe Attomey's Office ~rYJ-eJ- ) EXHIBIT'B' DEP AGREEMENT NO. S0089 AMENDMENT NO.1 THIS AGREEMENT as entered into on the 15th day of July, 2003, between the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (hereinafter referred to as the "Department") and the PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS (hereinafter referred to as "Grantee" or "Recipient") is hereby amended. WHEREAS, due to hurricane activity during the month of September, 2004, which directly impacted the geographic allocation of the Grantee, the schedule for this project has been delayed; and, WHEREAS, Project No. 02-5 Garden Avenue Drainage - Phase I has been revised to avoid construction and operation of a retention area on the West Palm Beach Golf Course due to a necessary precaution to avoid disturbance of arsenic contaminated soils and groundwater at the golf course; and, WHEREAS, the Grantee has requested and the Department has agreed to a no-cost time extension of the Agreement through December 30, 2006; and, wHEREAS, in order to reflect the aforementioned changes in project description and schedule, Attachment A needs to be replaced in its entirety; and, , wHEREAS. the Grantee understands that certification forward of State Fiscal Year 2002-2003 funds supporting ~s Agreement beyond June 30th of each year is subject to the approval of the Governor's Office; and. WHEREAS. the Grantee has requested an end date that extends beyond the current authorized funding period; and, wHEREAS, the Grantee understands that if the Governor's Office does not approve the Department's request to certify the funds forward, the Grantee will not be eligible for reimbursement for the activities covered by the remaining unpaid State Fiscal Year 2002-2003 funds; and, wHEREAS, additional changes to the Agreement are necessary. NOW. THEREFORE, the parties hereto agree as follows:: Paragraph 2. is hereby revised to change the completion date of the Agreement from June 30, 2005 to December 30. 2006 and to include the following as a separate subparagraph: The Grantee understands and agrees that certification forward of the State Fiscal Year 2002-2003 funds supporting this Agreement beyond June 30th of each year is subject to the approval of the Governor's Office. Paragraph 10. is hereby deleted in its entirety and replaced with the following: 10. A. In addition to the requirements of the preceding paragraph, the Grantee shall comply with the applicable provisions contained in Attachment C-l (Revised Special Audit Requirements), attached hereto and incorporated herein by reference. Exhibit 1 to Attachment C-l summarizes the funding sources supporting the Agreement for purposes of assisting the Grantee in complying with the requirements of Attachment C-l. A revised copy of Exhibit 1 must be provided to the Grantee for each amendment which authorizes a funding increase or decrease. If the Grantee fails to receive a revised copy of Exhibit 1, the Grantee shall notifY the Department's Grants Development and Review Manager at 850/245-2361 to request a copy of the updated information. DEP Agreement No. S0089, Amendment No.1. Page 1 of3 EXHIBIT 'B' B. The Grantee is hereby advised that the Federal and/or Florida Single Audit Act Requirements may further apply to lower tier transactions that may be a result of this Agreement The Grantee shall consider the type of financial assistance (federal and/or state) identified in Attachment C-l, Exhibit 1 when making its deter$nation. For federal financial assistance, the Grantee shall utilize the guidance provided under OMB Circular A-133, Subpart B, Section _.210 for determining whether the relationship r~resents ~t ofa subrecipient or vendor. For state financial assistance, the Grantee shall utilize the fonn eiititled "Cheeklfst . -for Nonstite Otganizations RecipientlSubrecipient vs Vendor Determination" (fonn number FSAA _ CL2) that can be found under the "LinkslForms" section appearing at the following website: htt;p:/lwww.fsaa.state.fl.us! The Grantee should confer with its chief financial officer, audit director or contact the Department for assistance with questions pertaining to the applicability of these requirements. The language included in the Agreement as Paragraph 23. shall hereinafter be referenced as Paragraph 24. The following language is hereby added to the Agreement as Paragraph 23.: 23. Grantee matching funds have been used for the acquisition of land for this project. The Grantee agrees that the :funds used to purchase the land shall not be used as match to any other Agreement supported by State or Federal funds. Attachment A, Project Work Plan is hereby deleted in its entirety and replaced with Attachment A-I, Revised Project Work Plao, attached hereto and made a part of the Agreement. All references in the Agreement to Attachment A shall hereinafter refer to Attachment A-I, Revised Project Work Plan. Attachment C, Special Audit Requirements is hereby deleted in its entirety and replaced with Attachment C-I, Revised Special Audit Requirements, attached hereto and made a part of the Agreement All references in the Agreement to Attachment C shall hereinafter refer to Attachment C-I, Revised Special Audit Requirements. REMAINDER OF PAGE INTENTIONALLY LEFf BLANK DEP Agreement No. S0089, Amendment No.1, Page 2 of3 EXHIBIT 'B' In aU other respects, the Agreement of which this is an Amendment and attachments relative thereto, shall remain in ful1 force and effect. IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed the day and year last written below. PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION By: *Chairman or designee By: Secretary or designee Date: Date: Approved as to form and legal sufficiency: T7dl;zt~ DEP Contracts Administrator PBC Assistant Attorney A~;~ PBC ERM ~irector . Approved as to form and leglllity: k~~~ *For Agreements with governmental boards/commissions: If someone other than the Chairman signs this Amendment, a resolution, statement or other document authorizing that person to sign the Amendment on behalf of the Grantee or must accompany the Amendment. List of attachments/exhibits included as part of this Amendment: Specify Type Attachment Attachment Letter/ Number A-I C-I Description (include number of Dages) Revised Project Work Plan (6 Pages) Revised Special Audit Requirements (5 Pages) D EP Agreement No. S0089, Amendment No. I, Page 3 of 3 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORlVl VI.-CONSENT AGENDA ITEM C.3. Requested City Commission Date Final Form Must be Turned Requested City Commission Meetilll!. Dates in to City Clerk's Office Meeting Dates [gJ August 2, 2005 July ] 8, 2005 (Noon.) 0 October5,2005 0 August] 6, 2005 August I, 2005 (Noon) 0 October] 8, 2005 0 September 6, 2005 August 15, 2005 (Noon) 0 November I, 2005 0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005 Date Final Form Must be Turned m to City Clerk's Office September 19,2005 (Noon) October 3, 2005 (Noon) October 17,2005 (Noon) . .. -< _.~ October 3], 2005 (Noon) 0 Administrative 0 Development Plans NATURE OF [gJ Consent Agenda 0 New Business AGENDA ITEM 0 Public Hearing 0 Legal 0 Bids 0 Unfinished Business 0 Announcement 0 Presentation 0 City Manager's Report " .-..... '._' 0-' -0 . . r;) --! ,--.::J '._j~ C.J ".b:'.' -'1 .""1 CD .,. r71 CO')> [Tl C") :I: [..j RECOMMENDATION: Motion to approve and authorize signing of an Agreement for Water Service Outside the City Limits with Nelson R. Santos & Teresa Santos for the property at 4700 White Feather Trl, Boynton Beach, FL (13-45-42, W 160 FT of N 272.25 FT of NW 1/4 of SE 1/4 of NW 1/4). EXPLANATION: The parcel covered by this agreement includes a single-family home. Only potable water is available for connection to the property at this time. (See location map) PROGRAM IMPACT: A Water Distribution main exists in the vicinity, allowing for the service to this parcel. No additional construction will be required by the City to serve this property. FISCAL IMPACT: None AL TERNA TlV ~'i. : None. This parcel is within the Utilities service ar " . .~-.. s Signature [,{i,l,t/~~ Department Name City Attorney / Finance / Human Resources XC: Peter Mazze]]a (wi copy of attachments) Michael Rumpf, Planning & Zoning Anthony Penn File " S:\BULLETIN\FORMS\A.GENDA ITEM REQUEST FORM.DOC 1 RESOLUTION NO. ROS- 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, 4 FLORIDA, AUTHORIZING AND DIRECTING 5 EXECUTION OF AN AGREEMENT FOR WATER 6 SERVICE OUTSIDE THE CITY LIMITS AND 7 COVENANT FOR ANNEXATION BETWEEN THE CITY 8 OF BOYNTON BEACH AND NELSON R. SANTOS AND 9 TERESA SANTOS; PROVIDING AN EFFECTIVE DATE. 10 11 12 WHEREAS, the subject property is located outside of the City limits, but within our 13 water and sewer service area, located at 4700 White Feather Trail, Boynton Beach, Florida 14 (13-45-42, W. 160 Ft ofN 272.25 Ft ofNW ]/4 ofSE Y4 ofNW 1/4); and 15 WHEREAS, the parcel covered by this agreement will include a single-family home 16 which only potable water is available for connection at this time; and 17 WHEREAS, a water distribution main exists in the vicinity allowing for the service to 18 this parcel; and 19 WHEREAS, no additional construction will be required by the City to serve this 20 property. 21 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF 22 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 23 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 24 being true and correct and are hereby made a specific part of this Resolution upon adoption 25 hereof. 26 Section 2. The City Commission hereby authorizes and directs the City Manager 27 to execute a Water Service Agreement between the City of Boynton Beach, Florida and 28 NELSON R. SANTOS and TERESA SANTOS, which Agreement is attached hereto as S:\CA \RESO\Agreements\Water Service\Santos Water Service AgreemenLdoc Exhibit "A". 2 Section 3. This Resolution shall become effective immediately upon passage. 3 4 5 6 7 8 9 10 J1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED AND ADOPTED this _ day of , 2005. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner Attest: City Clerk S:\CA\RESO\Agreements\Water Service\Santos Water Service Agreement.doc TillS INSTRUMENT PREPARED BY: James A. Cherof, Esquire 3099 East Commercial Blvd. Suite 200 Ft. Lauderdale, FL 33308 AGREEMENT FOR WATER SERVICE OUTSlDE THE ClTY LlMlTS AND COVENANT FOR ANNEXA nON . TI-llS AGREEMEN)' made on this _ day of ,200_, by and between J)!2. ( ~~" (2. ~fos ~ .7P.fe.~a.... S?-~-f-o.s. hereinafter called the "Customer", and the OTY OF BOYNTON BEACH, a municipal corporation of the State of Florida, hereinafter called the "City". WHEREAS, Customer owns real property outside of the jurisdictional limits of the City of Boynton Beach, Florida; and WHEREAS, Customer has requested that the City of Boynton Beach, Florida provide water service to the property owned by Customer; and WHEREAS, the City of Boynton Beach has the ability to provide water service to Customer's property; and WHEREAS, the City of Boynton Beach has a policy which conditions the grant of water services outside of its jurisdictional limits on annexation of the property to be serviced into the City at the earliest practicable time. NOW THEREFORE, for and in consideration of the privilege of receiving water service from the Municipal Water System and the mutual covenants expressed herein, the City of Boynton Beach and the Customer, his heirs, successors and assigns, agree as follows: 1. The City agrees to provide Customer with water service from its Municipal Water System to service the real property described as follows and which Customer represents is owned by Customer: (Exlnbit A) 2. The Customer and the City hereby agree that there are 1fI- Equivalent Residential Connections which City shall service. 3. 1be Customer agrees to pay all costs and fees of engineering, material, labor, installation and inspection of the facilities as required by the City of Boynton Beach Code of Ordinances or Land Development regulations to provide service to the Customer's premises. 'The Customer shall be responsible for installation in conformance with all codes, rules and regulations applicable to the installation and maintenance of water service lines upon tbe Customer's premises. 1 All such lines shall be approved by the Director of Utilities and subject to inspection by the City Engineers. The City shall have the option of either requiring the Customer to perform the work necessary to conform the lines or the City may have the work performed on behalf of the Customer, in which case the Customer will pay in advance all estimated costs thereof. In the event the City has such work performed, the Customer will also advance such additional funds as may be necessary to pay the total actual costs incurred by the City. 4. Any water main extension made pursuant to this Agreement shall be used only by the Customer, unless written consent is granted by the City of Boynton Beach for other parties to connect. All connections shall be made in accordance with the Codes and regulations of Boynton Beach. 5. Title to all mains, extensions and other facilities extended from the City Water Distribution System to and induding the metered service to Customer shall be vested in the City exclusively unless otherwise conveyed or abandoned to the property owner. 6. The Customer agrees to pay all charges, deposits and rates for service and equipment in connection with water service outside the City limits applicable under City Ordinances and rate schedules which are applicable which may be changed from time to time. 7. Any rights-of-way or easements necessary to accommodate the connections shall be provided by the Customer to the City. 8. The Customer shall, contemporaneously execute and deliver to the City an Irrevocable Special Power of Attorney granting to the City the power and authority to execute and advance on behalf of the Customer a voluntary petition for annexation. Customer covenants that it shall cooperate with the City and not raise opposition or challenge to such annexation if and when annexation is initiated. The property shall be subject to annexation at the option of the City at any time the property is eligible under any available means or method for annexation. Customer will inform any and all assigns or purchasers of any or part of this property of this covenant and of the irrevocable special power of attorney, but Customer's failure to provide such notice shall not constitute a defense or bar to the City's rights as set forth herein. The Customer acknowledges that the consideration of initially connecting to the City's water supply is sufficient to support the grant of the power of attorney any subsequent disconnection or lack of service shall in no way impair the power of attorney nor constitute a diminution or lack of consideration. 2 9. Annexation is intended to be and is hereby made a covenant running with the land described in paragraph 1 above. This Agreement and the power of attorney referenced herein is to be recorded in the Public Records of Palm Beach County, Rorida, and the Customer and all subsequent transferee, grantees, heirs or assigns of Customer shan be binding on the Customer and all successors and assigns. lO. It is agreed that tbe City shall have no liability in the event there is a reduction, impairment or termination in water service to be provided under this Agreement due to any prohibitions, restrictions, limitations or requirements oflocal, regional, State or Federal agencies or other agencies baving jurisdiction over such matters. Also, the City shall have no liability in the event there is a reduction, impairment or termination of water service due to acts of God, accidents, strikes, boycotts, blackouts, fIre, earthquakes, other casualties or other circumstances beyond the City's reasonable control. II. The Customer hereby agrees to indemnify, defend and hold harmless the City of Boynton Beach, Florida, its Mayor, Members of the City Commission, Officers, employees and agents (Both in their individual and official capacities) from and against all claims, damages, law suits and expenses including reasonable attorneys fees (whether or not incurred on appeal or in connection with post judgment collection) and costs rising out of or resulting frornthe Customer's obligation under or performance pursuant to this Agreement including disputes for breach of warranty of title. 12. No additional agreements or representations shall be binding on any of the parties hereto unless incorporated in this Agreement. No modifications or change in this Agreement shall be valid upon the parties unless in writing executed by the parties to be bound thereby. 13. The Customer warrants to the City that Customer holds legal and beneficial title to the property which is the subject of this Agreement. IN WITNESS WHEREOF, the parties hereto have set their hands and seals this /J t day of TULY , 200S~ WITNESS: ~.~ . Wltness Sl t e ~o..\I'W'~ ~. ~ Q ('- e.. ____ ...... Printed Witness Name ~DIVJDUAL. (~) AS OWNER(S): '/ I x:\ /~ I JF- Qwner Si nature / I C!.re5"'- ~l1fo-S XPrinted Owner Name 3 ..",~,~,,,,,,__,,,,,",,,,;;;,,,,,,,,,,,,,,,~",,,*...._,,...~.,,,,"._.,,,c',.,.,~~...,.~, ~"" x:-0Q~Qn .~ Witness Si J.lJ~ I ~o.lA.\i\6 -S. lla (" ~ . C-. . rinted Witness Name /4. / ~(~ Owner Signature -N f L)(J It! <<- S b ,,,-,TO 5 Printed Owner Name FOR INDIVIDUAL (S) NOTARIZATION: STATE OF FLORIDA ) ) ss: COUNTY OF PALM BEACH) 1 HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State afores.d and in the CouB!Y aforesaid to take acknowledgments, personally appeared eLs, !\J 1<. . I 'Cr'f'J't't S; hfof to me known to be the person(s) described in and who executed the foregoing instrument that he/she acknowledged before me that he/she executed the same; that the individual was personally known to me or provided the following proof of identification: FIr; n 4'~ .o,L. WI1NESS my hand and official seal in the County and State last aforesaid this IJ t day of Jt.<-lV ,200..s:- I - (Notary Se"Y1 II sUSAN.C&UN;...........E ! A CoImI#D00295085: :. ExpIres 3/112008 : . :. . : \~ ~~ Bonded Ihn.o (800)432-4254 ~ ~",,}~~",..., Florida Notary !'-5 "":.'1., '".~ .... r ...~ .r. ....... .....e..~ .".. lo.. ~ '._ ~~ ~'J Notary Public WITNESS: CITY OF BOYNTON BEACH, FLORIDA Kurt Bressner, City Manager A TrEST: City Oerk STATE OF FLORIDA ) 4 ) ss: COUNTY OF PALM BEACH) I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared , City Manager and , City Oerk respectively, of the City named in the foregoing agreement and that they severally acknowledged executing same in the presence of two subscribing witnesses freely and voluntarily under authority duly vested in them by said City and that the City seal affixed thereto is the true corporate seal affixed thereto is the true corporate seal of said City. WITNESS my hand and official seal in the County and State last aforesaid this , 200_. day of (Notary Seal) Notary Public Approved as to form: City Attorney 5 r<tIIIJ Dt::<tl:1J ~uUlltynupt::llY J-\ppJ<tISt::I rlupt::JLY "t::<tI\';JI "Y:sLt:IJI r<tgt:: J V1 L. _~~~:~:' '.~.'fopBrtv,~ppraiur's Public A:::cess System >-r~':;~ ~"'''.......,... r"""'- .. ......... ,..... '''' g;.,~ ,,~q;~~~<,~.~~~j' ..-,. :,: F ;- t J~ 'O' c r ',_ ~~~"""'~'~'",:kk<"___ ,. _"" Property Information Location Address: 4700 WHITE FEATHER TRL ~>f;;Q~teJldtalkili''".,;,1 Municipality: UNINCORPORATED Parcel Control Number: 00-42-45-13-00-000-3030 Subdivision: Official Records Book: 17981 Page: 1423 Sale Date: Dec-2004 LeQal Description: 13-45-42, W 160 FT OF N 272.25FT OF NW 1/4 OF SE 1/4 OF NW 1/4 Owner Information Name: SANTOS NELSON R &. ~",~",-<,"">I Mailing Address: 4700 WHITE FEATHER TRL BOYNTON BEACH FL 33436 1527 Sales Information Sales Date Book/Page Price Sale~ Owner Dec-2004 17981/1423 $325,000 WARRANTY DEED SANTOS NELSON R &. Nov-2004 17981/1421 $118,000 WARRANTY DEED AGERTON JACK &. Oct-1998 10706/1524 $115,000 WARRANTY DEED CECERE STEVEN C ~",,,,,~.....,,,,,I [Exemptions Exemption Information Unavailable. Appraisals Tax Year: Improvement Value: Land Value: Total Market Value: Use Code: 0100 2004 2003 2002 r- Tax Year 2004 $81,78 $67,50 $67,50 Number of Units: 1 $21,60 $20,00 $20,00 *Total Square Feet: 2505 $103,38 $87,50 $87,50 Acres: 1 Description: RESIDENTIAL * in residential propeFties may indicate living area. Assessed and Taxable Values Tax Year: 2004 Assessed Value: 103,38 Exemption Amount: Taxable Value: fIr.._....., Tax Values Tax Year: Ad Valorem: Non Ad Valorem: Total Tax: ~ NOTE: Lower the top and bottom margins to 0.25 on FiIe->Page Setup menu option in the browser to print the detail on one page. Record Search I Information I Exemptions I Community , Employment I New Home Buyer I Office Locations Value Adiustment Board I Save Our Homes I Senior Corner I Disclaimer http://www.co.pa1m-beach.fl.uslpapa/aspx/web/detail_info.aspx?p _ entity=OO424513000003.. _ 7/1/2005 [;;xt\~bJ+ 4- i 1.11 'L.f V'YIJ\.,.-l All Owner(s) peN Number: 00-42-45-13-00-000-3030 Owner Names SANTOS NELSON R a. SANTOS TERESA ~~~~~,,~,j ~i\'i:'~C.i.;;ElQse."~~.."",,,~j http://www.co.palm-beach.fl.us/papalaspxlweb/all Owner.aspx?entity _id=004245130000030... 7/1/2005 THIS INSTRUMENT PREPARED BY: James A. Cherof, Esquire 3099 East Commercial Blvd. Suite 200 FI. lauderdale, Fl 33308 IRREVOCABLE SPECIAL POWER OF ATTORNEY (By Individuals) 8T A TE OF FLORIDA COUNTY OF Po..lm 8eo-cl I~ /l/dsol'1 (2, SC\~+O! ~ 7efp~c...... S:.-V\.-fo"- , hereinafter "Grantee", hereby make, constitute, and appoint THE CITY OF BOYNTON BEACH, FLORIDA, true and lawful attorney in fact for Grantee and in Grantee's name, place and stead, for the sole purpose of executing on behalf of Grantee the power to initiate, maintain, and complet~~ a voluntary petition for annexation of the real property described herein into the CITY OF BOYNTON BEACH. This power shall extend to the CITY OF BOYNTON BEACH full and complete authority to act on Grantee's behalf to accomplish annexation by any avaiJable means. The real property which is the subject of this power is described as follows: OO-lfZ-Lf~-13-oo -oco- 3050 The powers and authority of my attorney, THE CITY OF BOYNTON BEACH, FLORIDA, shall commence and be in full force and effect on the Is-+- day of Jkl ~ 20 ~and the powers and authority shall be irrevocable by Grantee. IN WITNESS WHEREOF, we have hereunto set our hands and seals the M_ day of_ 3_~__, in the year two thousand and lL~~. Sealed and delivered in the presence of ~,tV4/J x:f~~y Owner Signaturel -/. I er;;" S:q VI+ 05 Printed Owner Name ,;(~C\.""v'-o. ~. ~ ('......r L::' ~ PfiU. d Witness Name ~' ~t !G:~ Witness Signature s~~ F.f29J Printed Witness Name ~efJ-/~ I- ~ f LSbtV ~f ~J. JJ/D S- Printed Owner Name K~~ ~~~~~ Witness Signat~ ^. \":>~ 0... '" v--.c.-s.. (,6.. , '-.' c!- Printed Witness Name J::.~ 3. I(~ p~';i~sIN:: Lfee'f STATE OF FLORIDA ) ) ss: COUNTY OF PALM BEACH ) THE FOREG NG INSTRUMENT was ackn\,wledged before me fhis If' /day of JlA..l-, 20 O~ by Ne U oN fC'. a-- Ie reJa Jla. i1 17>-, and , who are known to me or who have produced , as identification and who-ditfldid not take an oath. ~~ C~ ~/ NOTARY PUBUC f,. f, L1 ~ I o f.UnIV COLCINJ Type or Print Name Commission No. My Commission Expires: 11 i . IUIAN COLa.JNs I ! ~ c:an...JDDOII&08S i \~~} ElcJiNa3f112OO8 : \)'GY"-~ Ilondect Ihru (800)432-4254 ;_.~..~:=~:I:::.n....~ Notaty Assn., tnc ..--........- ':'..t:l>" -_- ... 1 in. = 186.6 feet 3210 0000 0470 0700 MilO 0710 0820 1110 MSD 072. 8810 ....0 0730 8800 043D 0400 03!1D Location Map - 4700 n.. White Feather Trl CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VI.-CONSENT AGENDA ITEM C.4 Requested City Commission Meeting Dates Date Final Fonn Must be Turned in to City Clerk's Office Requested City Commission Meeting Dates Date Final Fonn Must be Turned in to City Clerk's Office rg] August 2, 2005 D August 16,2005 D September 6, 2005 D September 20, 2005 July 18,2005 (Noon.) D October 5, 2005 D October 18, 2005 D November 1,2005 D November 15, 2005 September 19,2005 (Noon) August 1,2005 (Noon) October 3, 2005 (Noon) August 15,2005 (Noon) October 17, 2005 (Noon) September 6,2005 (Noon) October 31, 2005 (Noon)_. .~ .> '--~ l ...) --I --:-r;: NATURE OF AGENDA ITEM D Administrative rg] Consent Agenda D Public Hearing D Bids D Announcement D City Manager's Report D D D D D ~.._- c:: Development Plans New Business ::'7 '::".t - --~. -...,,"" Legal Unfinished Business Presentation -'"1 --,_....-.. ~ "'-'- 1"0 '.) --1 (::J _.j~ --q .;;'- "'""1 CD i~)I~ ;.") :;::. " ..,.. C) RECOMMENDATION: Motion to approve a three year interlocal agreement between Palm Beach County and the City of Boynton Beach at an annual cost of $4000 funded by the ITS. Department Account #001-1510-513-41-10 where the City can directly access the County's Dialogic Geographic-based Alert and Notification System. EXPLANATION: This agreement will provide for a geographic-based callout to alert citizens and visitors of imminent threat to life or property, an instruction to take immediate protective action, or notification of important or useful information. The County has committed to purchase, install and operate a Dialogic Geographic-based Alert and Notification system (GeoCast Web) that meets the needs of the Palm Beach County Emergency Management and various Palm Beach County general government agencies PROGRAM IMPACT: The regional notification system will provide another layer and venue of communication to our residents and can be used in conjunction with the city's TeleWorks First Responder system. FISCAL IMPACT: The term of this agreement is for three years at an annual cost of $4000. Funds are available in the I.T.S. Department's telecommunication budget (001-1510-513-41-10).. By eliminating the city's outdated Dialogic system, this alternative will provide savings of $8000 annually, while utilizing the County resources including geographic data, addresses, and phone records for the residents of Boynton Beach AL TERNA TIVES: Do not enter into an agreement with Palm Beach County and rely on the city's Dialogic and TeleWorks First Responder systems only. S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM. DOC CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM City Attorney! Finance! Human Resources I.T.S. S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM. DOC '","'".."_....IilI.....~... .....,...... """',;_W..k"'~"""",,.;"'.""__€,.>i,r>',." 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 RESOLUTION ROS- A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND PALM BEACH COUNTY WHERE THE CITY CAN DIRECTLY ACCESS THE COUNTY'S DIALOGIC GEOGRAPHIC-BASED ALERT AND NOTIFICATION SYSTEM; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, this agreement will provide for a geographic-based callout to alert 16 citizens and visitors of imminent threat to life or property, an instruction to take immediate 17 protective action or notification of important or useful information. 18 19 20 21 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing "WHEREAS" clauses are true and correct and hereby 22 ratified and confirmed by the City Commission. Section 2. The City Commission does hereby authorize and direct the Mayor and 24 City Clerk to execute an Agreement between Palm Beach County and the City of Boynton 25 Beach, where the City can directly access the County's Dialogic Geographic-based Alert and 26 Notification System, which Agreement is attached hereto as Exhibit "A." 27 28 Section 3 That this Resolution shall become effective immediately upon passage. 1 S:\CA\RESO\Agreements\InterJocals\ILA - PBC Dialogic Alert System.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PASSED AND ADOPTED this _ day of August, 2005. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner ATTEST: City Clerk (Corporate Seal) 2 S:\CA \RESO\Agrcements\lnterlocals\JLA . PBC Dialogic Alert System.doc INTEROFFICE MEMORANDUM TO: \VlLFRED 11-\ WKINS FROM: PETER WALLACE SUBJECT: REGIONAL NOTFICATION SYSTEM DATE: 7/7/2005 CC: KURT BRESSNER The ITS department would like to utilize the Pahn Beach County Geographic-based alerts and notification system to alert citizens and visitors of an imminent threat to life or property, or provide instruction to take immediate protective action. The Regional Notification system will provide another layer and venue of communications to our residents and can be used in conjunction with the city's Tele\Vorks First Responder system.. The system will reside at Pahn Beach County EOC and accessible via the web. The intent is to make the system available to the public safety departments such as Police, Fire, Dispatch, EOC staff, Public \Vorks, and Utilities. Access and usage including content will fall under the current APM that governs the city's dialogic system. The interlocal agreement (attached) has been reviewed and approved by David Tolces of the city's legal department. E-mail correspondence attached. The term is for three (3) years at an annual cost of $4000 (four thousand dollars). Money is allotted in the ITS telecommunication budget for this expenditure. In light of the active hurricane season last year and early activity including one named storm this year, were the city's infrastructures to be damaged, this external system would potentially be accessible via the Web. By eliminating the city's outdated Dialogic system, this alternative will provide savings of $8000 yearly while utilizing County resources including geographic data, addresses, and phone records for the residents of Boynton Beach. Please advise if we may proceed in this direction. INTERLOCAL AGREEMENT THIS INTER LOCAL AGREEMENT, made and entered into this day of2005, by and between PALM BEACH COUNTY, a political subdivision of the State of Florida ("County") and Boynton Beach, Florida, a municipal corporation ("Municipality"), each one constituting a public agency as defined in Part I of Chapter 163, Florida Statutes. WITNESSETH: WHEREAS Section 163.01 of the Florida Statutes, known as the Florida Interlocal Cooperation Act of 1969, authorized local governmental units to make the most efficient use of their powers by enabling them to cooperate with other localities on a basis of mutual advantage and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization that will accord best with geographic, economic, population and other factors influencing the needs and development oflocal communities, and WHEREAS the County and the Municipality are continually identifying more effective service delivery methods which result in overall savings to the taxpayers of the County and the Municipality; and WHEREAS the County has committed to purchase, install and operate a Dialogic Geographic-based Alert and Notification System ("GeoCast Web") that meets the needs of Palm Beach County Emergency Management and various Palm Beach County general government agencies; and WHEREAS the County and the Municipality have determined that the ability to provide consistent, timely geographic-based alerts and notifications to residents and visitors is critical to the effective and efficient provision of public safety and general government services; and WHEREAS it has been determined mutually beneficial to all Parties to execute this Agreement which sets forth the parameters under which the Municipality can directly access the County's Geographic-based Alert and Notification System, saving the taxpayers of both the County and the Municipality, as well as receiving the public safety benefit of consistent and timely geographic-based alerts and notifications; and WHEREAS Section 163.01, Florida Statutes, permits public agencies to enter into interlocal agreements with each other to jointly exercise any power, privilege or authority which such agencies share in common and which each might exercise separately. NOW THEREFORE in conjunction with the mutual covenants, promises and representations contained herein, the parties hereto agree as follows: SECTION 1: PURPOSE 1.01 The purpose of this Agreement is to set forth the parameters under which the County will make access to its Dialogic Geographic-based Alert and Notification System ("System") available to the Municipality. This Agreement identifies the conditions of use, the cost of access and on-going use, and the ability of the Municipality to participate in the operational decisions relating to the GeoCast Web System. 1.02 Definitions 1.021 Dialogic Alert: A Geographic-based callout to alert citizens and visitors of an imminent threat to life or property, or an instruction to take immediate protective action. An example of a Dialogic Alert would be an evacuation order. 1.022 Dialogic Notification: A Geographic-based callout to notify citizens and visitors of important or useful information. An example of a Dialogic Notification would be a call notifying a citizen of a license expiration. 1.023 System: The Dialogic Geographic-based Alert and Notification System funded, purchased, installed, maintained, and owned by the County. The system includes a computer server, the GeoCast web software, an ArcIMS license, the Dialogic Communicator 9.2 server, 58 telephone lines, and geocoded maps. 1.024 Dialogic System Administrator: An employee with the Emergency Management Division of the County's Department of Public Safety responsible for day to day administration and management ofthe System and the County's designated contact person pursuant to various sections of this Agreement. 1.025 Agreement: This Interlocal Agreement, including any amendments or supplements hereto, executed and delivered in accordance with the terms hereof. SECTION 2: ADMINISTRATION OF THE COUNTY'S SYSTEM AND USE PROCEDURES 2.01 The Palm Beach County Division of Emergency Management is charged with responsibility for administering the System. Within the Emergency Management Division a position entitled "911 SpecialistJDialogic System Administrator" will be the Municipality's day to day contact and can be reached at 561-712-6485. The Division of Emergency Management is staffed :from 8:00am to 5:00pm, Monday through Friday, excluding County holidays. After hours emergency contact will be made through the Emergency Management Division's County Waming Point at 561-712-6428 and the County Warning Point will notify the on-call Emergency Management Division personnel. 2.02 The Municipality shall follow all polices, procedures, and standard operating procedures in place at the time of this Agreement, as well as those developed in the future and issued to the Municipality by the System Administrator. The Municipality agrees to comply with any enforcement actions required by these policies and procedures for mis-use or abuse of the County System. SECTION 3: DIALOGIC GEOGRAPHIC-BASED ALERT AND NOTIFICATION SYSTEM MAINTENANCE PROGRAM 3.01 The Dialogic Geographic-based Alert and Notification System consists of a computer server, the GeoCast web software, an ArcIMS license, the Dialogic Communicator 9.2 server, 58 telephone lines, and geocoded maps. 3.02 The County will perform routine and preventative maintenance on the System according to its established procedures. This maintenance includes trouble shooting and making all repairs on a 24/7/365 basis as well as performing preventative maintenance on the entire System including, but not limited to, server equipment, GIS maps, and databases associated with the System, but not including Municipality's equipment. SECTION 4: MUNICIPALITY RESPONSIBILITIES AND EQUIPMENT 4.01 The Municipality's equipment will be a computer or computers connected to the Internet, each equipped with a web browser compatible with ArelMS. The Municipality shall be required to keep its equipment in proper operating condition and ensure a functioning Internet connection to access the System. The Municipality shall be solely responsible for maintenance of its computers, web browsers, and Internet-connectivity. 4.02 Within 15 days of the execution of this Agreement, the Municipality shall provide the County with a single Municipal Representative who shall be the Municipality's single point of contact for matters relating to this Agreement. 4.03 Within 15 days of the execution of this Agreement, the Municipality shall provide the County with a list of person/positions who are authorized to utilize the System on behalf of the Municipality, under the authority of the Municipal Representative. 4.04 The Municipality shall receive certain access codes to the County's System and shall be responsible for safe guarding the code information from release to unauthorized parties. The Municipality shall be responsible for notifying the System Administrator prior to, or within 2 hours of terminating employees or commercial service providers which had knowledge of the access codes so that the access codes can be modified and the System secured. 4.041 Service staff directly employed by the Municipality shall be considered authorized to receive access codes for maintenance of the Municipality's connection to the System. 4.042 Commercial service providers are not considered authorized to receive access codes for the County system. Municipalities that plan to use commercial services for subscriber maintenance must include confidentiality requirements in their contracts with the commercial service providers. These requirements must be reviewed and approved (which approval will not unreasonably be withheld) by the System Administrator and the County Attorney's Office prior to the Municipality executing its contract with a commercial system provider. 4.05 The Municipality is solely responsible for the performance and operation of the Municipality's equipment and any damages or liability resulting from the use thereof. Should the County identify malfunctioning Municipality-owned equipment, the County will notify the Municipal Representative and the Municipality shall discontinue use of the specific equipment until repairs are completed. The County may, after proper notification, disable the connection of the equipment to the System after properly notifying the Municipality in writing if the equipment is causing problems with the System. 4.06 Nothing in this Agreement shall represent a commitment by the County or shall be construed as intent by the County to fund any portion of the Municipality's Equipment or Internet connectivity. SECTION 5: ANNUAL SYSTEM ACCESS AND USAGE CHARGE 5.01 The Municipality will be assessed an annual access and usage charge in the amount of $4000 (Four Thousand Dollars). The County may review the annual access and usage charge every three (3) years beginning October I S\ 2008. Following such a review, the County may adjust the charge for the following fiscal year and provide notice to the Municipality no later than April I sl prior to the commencement of the fiscal when the adjustment will take effect. The adjusted fee will be applicable for the upcoming fiscal year and will automatically become part of this Agreement on October 1 sl of the applicable year for which the Municipality agrees to be bound. 5.02 If the effective date of this Agreement is between November 15th and September 30th, the Municipality will be charged pursuant to section 5.01. This charge will not be prorated. 5.03 The Municipality agrees that in the event of any termination ofthe Agreement, the annual access and usage charge shall not be reimbursed. SECTION 6: BILLING SCHEDULE 6.01 Each November 15th, the County will invoice the Municipality for the annual access and usage charge, in the amount of the charge described in Section 5.01. 6.02 Upon receipt of any invoice, the Municipality will immediately review same and report any discrepancies to the County within 10 days of receipt. Payment will be due to the County within 30 days of receipt of the invoice. Payments shall be sent to: Public Safety Department Fiscal Manager 20 S. Military Trail West Palm Beach, FL 33415 Attn: Alert and Notification Interlocal Agreement # , Invoice # SECTION 7: COUNTY RESPONSIBILITIES 7.01 The County shall be responsible for the maintenance and operation ofthe System. The County shall notify the Municipal Representative in advance of scheduled maintenance which impacts the users of the System and shall respond to emergencies in the time frames and according to the procedures identified. 7.02 The County shall be responsible for all costs and fees associated with the operation ofthe System. 7.03 The County shall be responsible for the management of all payments made pursuant to Section 5.01 7.04 The County shall maintain access to the System throughout the term of this Agreement except for times of scheduled preventative maintenance, where it will be required to disable access to the System for a pre-determined length of time or during times of system failures. 7.05 The County will provide notification of System problems and time for System restoration to the Municipal Representative or designee if access to the System will be inaccessible for more than two hours. SECTION 8: IMDEMNIFICA TION AND LIABILITY The County makes no representations about the design and capabilities of the County System. The Municipality has decided to enter into this Agreement and use the County's System based on its review of the system design, system capability, manufacturing and install details contained in the County's contract with Dialogic Communications Corporation and subsequent testing data that may exist. The County agrees to use its best efforts to provide the Municipality with the use of the System described in this Agreement, but makes no guarantee as to the continual, uninterrupted use of the Dialogic Geographic-based Alert and Notification System, or its fitness for the alert and notification needs of the Municipality. The Municipality as a Florida municipality agrees to be fully responsible as set forth in Section 768.28, Florida Statutes, for its own negligent acts or omissions or tortious acts which result in claims or suits against the County and agrees to be liable to the limits set forth in Section 768.28, Florida Statutes, for any damages proximately caused by said acts or omissions. Nothing herein is intended to serve as a waiver of sovereign immunity by the Municipality to which sovereign immunity applies. Nothing herein shall be construed as consent by a State agency or subdivision of the State of Florida to be sued by third parties in any matter arising out of any contract. The County, as a political subdivision of the State, agrees to be fully responsible as set forth in Section 768.28, Florida Statutes, for its own negligent acts or omissions or tortious acts which result in claims or suits against the Municipality, and shall be liable to the limits set forth in Section 768.28, Florida Statutes, for any damages proximately caused by said acts or omissions. Nothing herein is intended to serve as a waiver of sovereign immunity by the County to which sovereign immunity applies. Nothing herein shall be construed as consent to be sued by third parties in any matter arising out of any contract. The parties to this Agreement and their respective officers and employees shall not be deemed to assume any liability for the acts, omissions, and negligence of the other party. Further, nothing herein shall be construed as a waiver of sovereign immunity by either party, pursuant to Section 768.28, Florida Statutes. Neither the County or the Municipality shall be liable to each other and for any third party claim, which may arise out of the services provided hereunder or of the alert and notification system itself, its operation or use, or its failure to operate as anticipated, upon whatever cause of action any claim is based. The System is designed to assist qualified governmental and emergency service professionals. It is not intended to be a substitute for the exercise of judgment or supervision of those professionals. The terms and conditions of this Interlocal Agreement incorporate all the rights, responsibilities, and obligations of the parties to each other. The remedies provided herein are exclusive. The County and the Municipality waive all remedies, including, but not limited to, consequential and incidental damages. SECTION 9: OWNERSHIP OF ASSETS All assets and services maintained under Section 4 of this Agreement will remain assets of the Municipality at all times. Parts incorporated into assets owned by the Municipality will immediately become a part of the asset and will be the property of the Municipality. All other assets involved in the System will remain the County's, despite the Municipality's financial contribution to their maintenance, renewal and replacement. SECTION 10: TERM OF AGREEMENT The initial term of this Agreement is for three (3) years and shall commence upon the effective date of the agreement. The effective date of the Agreement is the date the Agreement is filed with the Clerk of the Circuit Court as provided in Sec.17. herein, after execution by all municipalities joining in the Agreement and the Board of County Commissioners. The Agreement may be renewed for an additional three (3) year term thereafter. At least eight months prior to the expiration of this Agreement's term, the Municipality shall provide the County with a request to renew this Agreement. Such Renewal Amendment will require approval of both parties and the County may not unreasonably withhold its approval of the Renewal Agreement. SECTION 11: AMENDMENTS TO THIS AGREEMENT This Agreement may be amended from time to time by written amendment executed by both the Board of County Commissioners and the Municipality. SECTION 12: TERMINATION This Agreement may be terminated by either party with or without cause. Any termination shall be effective only on October 1 st of any year and shall be with a minimum of six months notice. ,-""y",,,-,,,,,,,-,,,,,,,,,,,,,,,,,,,,,,,,.,,,,,,"_.~--,,~~,...,,,,-,,,......;-, SECTION 13: ANNUAL BUDGET APPROPRIATIONS The County and Municipality's performance and obligations to pay pursuant to this Agreement are contingent upon annual appropriation for its purpose by the Board of County Commissioners and the Municipality. SECTION 14: NOTICES Any notice given pursuant to the terms of this Agreement shall be in writing and done by Certified Mail, Return Receipt Requested. The effective date of such notice shall be the date of receipt as evidenced by the Return Receipt. All notices shall be addressed to the following: As to the County: County Administrator 301 North Olive Avenue West Palm Beach, FL 33401 Director, Public Safety Department 20 S. Military Trail West Palm Beach, FL 33415 With copy to: Dialogic System Administrator 20 S. Military Trail West Palm Beach, FL 33415 County Attorney's Office 301 North Olive Avenue West Palm Beach, FL 33401 As to the Municipality: (Manager, Mayor, etc.) (Municipal Representative) SECTION 15: APPLICABLE LAW/ENFORCEMENT COSTS This section shall be governed by the laws ofthe State of Florida. SECTION 16: EQUAL OPPORTUNITY PROVISION The County and the Municipality agree that no person shall, on the grounds of race, color, sex, national origin, disability, religion, ancestry, marital status or sexual orientation be excluded from the benefits of, or be subjected to, any form of discrimination under any activity carried out by the performance of this Agreement. SECTION 17: FILING A copy of this Agreement shall be filed with the Clerk of the Circuit Court in and for Palm Beach County, Florida. SECTION 18: ENTIRE AGREEMENT This Agreement and any Exhibits attached hereto and forming a part thereof as if fully set forth herein, constitute all agreements, conditions, and understandings between the County and Municipality concerning the System. All representations, either oral or written, shall be deemed to be merged into this Agreement. Except as herein otherwise provided, no subsequent alteration, waiver, change or addition to this Agreement shall be binding upon County or Municipality unless reduced to writing and signed by them. SECTION 19: DELEGATION OF DUTY Nothing contained herein shall be deemed to authorize the delegation of the Constitutional or Statutory duties of County or Municipal officers. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. SHARON R. BOCK Clerk & Comptroller PALM BEACH COUNTY, FLORIDA BY ITS BOARD OF COUNTY COMMISSIONERS ATTEST: By: By: Deputy Clerk Chairman, Tony Masilotti APPROVED AS TO FORM AND LEGAL SUFFICIENCY APPROVED AS TO TERMS AND CONDITIONS By: By: County Attorney ATTEST: (MUNICIP AUTY NAME) By: By: Mayor CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VI.-CONSENT AGENDA ITEM C.S. Requested City Commission Date Final Fonn Must be Turned Requested City Commission Date Final Fonn Must be Twned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office [gI August 2, 2005 July 18,2005 (Noon.) 0 October 5, 2005 September 19,2005 (Noon) 0 August 16,2005 August], 2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon) 0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 October 17,2005 (Noon) 0 September 20, 2005 September 6,2005 (Noon) 0 November 15, 2005 October 31,2005 (Noon) NA TURE OF AGENDA ITEM o [gI o o o o Administrative 0 Development Plans Consent Agenda 0 New Business Public Hearing 0 Legal ;--- Bids 0 Unfinished Business Announcement 0 Presentation C;) ,-"') "- j---.; -.~_..; "-;l:'" ..~ c:~ n~, " , . CT.J , C:) '--':, ~;t: it.. ,,-' ~ :~S2j ;;} ---:j~ 'leu RECOMMENDATION: Ul -;-'1 Motion to approve and authorize signing ofthe Agreement between the City of Boynton Beach and Palm BWch ,::'~l=; County for Joint Participation and Project Funding in the Construction of Lawrence Road, from Boynton Beach ::r: Blvd. to Gateway Blvd. (Palm Beach County Project no. 1999507), and authorizing expenditures by the City in the amount of $315,742.00. City Manager's Report EXPLANATION: The proposed widening and roadway improvements to Lawrence Road by Palm Beach County will require the relocation and/or replacement of certain water and wastewater pipelines located within the County right-of-way. Much of the pipeline work involves the replacement and relocation of 1,923 linear feet of unlined, cast iron sewage force main (approximately 30 years old) with new epoxy-lined ductile iron force main; replacement of 144 linear feet of 16-inch diameter water main as part of a new canal crossing; and the replacement of various valves and fittings necessary to assure proper operation of the system. A contingency amount of $28, 819.50 is also included in the contract for miscellaneous adjustments and protecting existing facilities. PROGRAM IMPACT: This is a renewal and replacement project necessitated by the re-design of the Lawrence Road paving and drainage systems. The new sewage force main being installed should provide a useful life of an additional 50 years or greater, thereby minimizing future repair costs to the Utility. FISCAL IMPACT: The total cost to the City of this funding agreement, in the amount of $315,742.00, will be paid from the Utility renewal and replacement accounts (405-5000-590-96-02 WTR 119; 405-5000-590-96-04 SWR 098) ALTERNATIVES: Re-design of the roadway and drainage system requires much of the construction being proposed through this agreement. Realistically, there are no alternatives to approving the Joint Participation and Funding Agreement if the roadway is to be modified as proposed. S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM UTILITIES Department Name ~:,mn~~A IY Cc: Peter Mazzella (wi one copy of attached agreement) Barbara Conboy Mary Munro, Finance Dept. City Attorney File S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC ^._.A"'"...._'...._....~M__"'.__"'""""~""''''''''''^'...,'~.....,;<;"',..-...<'';L''''.N' " 1 RESOLUTION NO. R05- 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, 4 FLORIDA, AUTHORIZING AND DIRECTING THE 5 CITY MANAGER TO EXECUTE AN AGREEMENT 6 BETWEEN THE CITY OF BOYNTON BEACH AND 7 PALM BEACH COUNTY FOR JOINT PARTICIPATION 8 AND PROJECT FUNDING IN CONSTRUCTION OF 9 LAWRENCE ROAD, BOYNTON BEACH BOULEVARD 10 TO GATEWAY BOULEVARD; AND PROVIDING AN 11 EFFECTIVE DATE. 12 13 WHEREAS, the County of Palm Beach and City of Boynton Beach desire to jointly 14 participate in the construction of utility adjustments to water distribution and/or sewage 15 transmission systems and other improvements, along the right-of-way of Lawrence Road from 16 Boynton Beach Boulevard to Gateway Boulevard roadway improvements; and 17 WHEREAS, the City Commission of the City of Boynton Beach, upon 18 recommendation of staff, deems it to be in the best interests of the residents and citizens of the 19 City of Boynton Beach to approve the Agreement between the City of Boynton Beach and 20 Palm Beach County for Joint Participation and Project Funding in Construction of Lawrence 21 Road, Boynton Beach Boulevard to Gateway Boulevard, Palm Beach County, Florida. 22 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF 23 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 24 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 25 being true and correct and are hereby made a specific part of this Resolution upon adoption 26 hereof. 27 Section 2. The City Commission of the City of Boynton Beach, Florida, upon 28 recommendation of staff, hereby authorizes and directs the appropriate City Officials to 29 execute an Agreement between Palm Beach County and City of Boynton Beach for, a copy of S:\CA\RESO\Agreements\lnterlocals\lLA psc - Construction of Lawrence Road.doc 1 said Agreement is attached hereto as Exhibit" A". 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 That this Resolution shall become effective immediately upon passage. Section 3. , 2005. PASSED AND ADOPTED this _ day of CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner ATTEST: City Clerk (Corporate Seal) S:\CA\RESO\Agreements\lnterlocaIS\ILA psc - Construction of Lawrence Road.doc Department of Engineering and Public Works P.D. Box 21229 West Palm Beach, FL 33416-1229 (561) 684-4000 www.pbcgov.com . Palm Beach County Board of County Commissioners Tony Masilotti, Chairman 'ie L. Greene, Vice Chairperson Karen T. Marcus Jeff Koons Warren H. Newell Mary McCarty Burt Aaronson County Administrator Robert Weisman "An Equal Opportunity Affirmative Action Employer" ~ printed on recycled paper ~~@~ow~@ JUL 0 5 2005 BOYNTON BEACH UTILITIES June 20, 2005 City of Boynton Beach Utilities Department 124 East Woolbright Road Boynton Beach, FL 33435-6040 ATTN: Mr. Peter V. Mazzella, Deputy Director RE: JOINT PROJECT P ARTICIP A TION/FUNDING AGREEMENT IN THE CONSTRUCTION OF LAWRENCE ROAD, BOYNTON BEACH BOULEVARD TO GA TEW A Y BOULEVARD PALM BEACH COUNTY PROJECT NO. 1999507 Dear My. Manella: Enclosed herewith are three original joint project participation/funding agreements for your utility work on the referenced project. Bergeron Land Development, Inc., was the lowest responsive bidder. The contract for $ 5,030,578.15 is anticipated to be awarded by the Board of County Commissioners on August 16, 2005 and includes your items of work in the amount of $315,742.00. Please review and request the City to execute the agreements and return all three origin~Js for execution by the County. If you have any questions regarding this matter, please feel free to contact this office. Sincerely, Omelio A. Fernandez, P.E., Director Engineering/Public Works Operations OAF/<Y~~f~ pc: Tanya N. McConnell, P.E., Deputy County Engineer Marlene R. Everitt, Assistant County Attorney-w./Attachment Carl R. Miller, Director, Construction Coordination-w./Summary Bob Ward, Fiscal Manager I, Administrative Services-w./Attach. ec: Steven B. Carrier, Five Year Road Program Manager, Roadway Production David L. Young, P.E., Special Projects Manager, Roadway Production Div. William R. Sears, P.E., Project Engineer, Roadway Production Division Carl L. Hussey, P.E., Utility Coordinator, Roadway Production-w./Attach. F:\ROADW A Y\AGRM1i1997509 .BBU-L TR. wpd AGREEMENT BETWEEN PALM BEACH COUNTY, FLORIDA AND THE CITY OF BOYNTON BEACH FOR JOINT PARTICIPATION AND PROJECT FUNDING IN CONSTRUCTION OF LA WRENCE ROAD, BOYNTON BEACH BOULEVARD TO GATEWAY BOULEVARD PALM BEACH COUNTY, FLORIDA PALM BEACH COUNTY PROJECT NO. 1997509 THIS AGREEMENT, made and entered into this day of 2005, by and between PALM BEACH COUNTY, a political subdivision in the State of Florida, herein referred to as "COUNTY" and the "CITY OF BOYNTON BEACH", a municipality in the State of Florida, herein referred to as the "CITY", WITNESSETH: WHEREAS, COUNTY and CITY desire to jointly participate in the construction of utility adjustments to water distribution and/or sewage transmission systems and other improvements, hereinafter referred to as the "Work" along the right-of-way of Lawrence Road from Boynton Beach Boulevard to Gateway Boulevard roadway improvements, hereinafter referred to as the "Project"; and WHEREAS, Florida Statutes, Section 163.01, allows governmental units to make the most efficient use of their powers by enabling them to cooperate with other localities on a basis of mutual advantage; and WHEREAS, both COUNTY and CITY declare that it is in the public interest that the "Work" be constructed with the aforementioned PROJECT: and NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, the Parties to this Agreement agree as follows: I. The CITY agrees to pay directly to the COUNTY costs attributable to construction of the "Work" along the right-of-way of the "Project" as outlined and shown in the Bid Documents for Palm Beach County Project No. 1997509. 1 AGREEMENT WITH THE CITY OF BOYNTON BEACH 2. Said summation of costs is stated in the amount of$3]5,742.00 in accordance with the attached bid tabulation (Attachment "A") and summary (Attachment "B") for the specified work. 3. Costs shall be adjusted upon actual contract costs and completion of the project using contract unit prices and actual constructed quantities, said quantities being measured by the Palm Beach County Engineering and Public Works Department. 4. The CITY agrees to fund those contributions set forth in Paragraphs I through 3 above within thirty (30) days of receiving written notice from the COUNTY that funding is required. 5. The COUNTY is to be responsible for administering the funds in accordance with the Agreement. 6. The CITY is to be responsible for, and agrees to provide or cause to be performed all inspection services during construction of the "Work" and final certification for the aforementioned "Work" as it relates to the CITY's work 7. The COUNTY shall obtain CITY approval for any change orders which increase the cost attributable to the construction ofuti]ity adjustments to water distribution and/or sewage transmission systems and other improvements to an amount greater than the contract amount as stated in Paragraph 2 of this agreement. The CITY shalt be responsible for any cost caused by the CITY's delays including but not limited to change orders attributable to the roadway improvements as it relates to the CITY's work. 8. In the event that additional work and funding is required, the additional cost attributable to said construction of the "Work" as outlined in the specifications for this project is the responsibility of the CITY. In the event of an under run attributable to said construction of the "Work", as outlined in the specification, the CITY will be credited the excess amount. 2 AGREEMENT WITH THE CITY OF BOYNTON BEACH 9. The CITY shall indemnify, defend, and hold harmless the COUNTY against any actions, claims, or damages arising out of CITY's negligence in connection with this Interlocal Agreement to the extent permitted by law. The foregoing indemnification shall not constitute a waiver of sovereign immunity beyond the limits set forth in Section 768.28, Florida Statutes, nor shall the same be construed to constitute agreement to indemnify the COUNTY for the COUNTY's negligent acts or omissions. 10. The COUNTY shall indemnify, defend, and hold harmless the CITY against any actions, claims, or damages arising out of COUNTY's negligence in connection with this l11terlocal Agreement to the extent permitted by law. The foregoing indemnification shall not constitute a waiver of sovereign immunity beyond the limits set forth in Section 768,28, Florida Statutes, nor shall the same be construed to constitute agreement to indemnify the CITY for the CITY's negligent acts or omissions. II. All provisions of this Agreement calling for the expenditure of ad valorem tax money by either COUNTY or CITY are subject to annual budgetary funding and should either Party involuntarily fail to fund any oftheir respective obligations pursuant to this Agreement, this Agreement may be terminated, 12. Any and all notices required or permitted to be given hereunder shall be deemed received three (3) days after same are deposited in U.S. Mail sent via certified mail, return receipt requested. All notice to the CITY shall be sent to: City of Boynton Beach 124 East Woolbright Road Boynton Beach, FI 33435-6040 ATTN: Mr. Peter V. Mazzella Deputy Director of Utilities All notice to the COUNTY shall be sent to: George T, Webb, P.E., County Engineer Engineering and Public Works Department P.O. Box 21229 West Palm Beach, FL 33416-1229 A TTN: ROADWAY PRODUCTION 3 AGREEMENT WITH THE CITY OF BOYNTON BEACH IN WITNESS WHEREOF, the Parties unto this Agreement have set their hands and seals on the day and date first written above. CITY OF BOYNTON BEACH PALM BEACH COUNTY, FLORIDA, BY ITS BOARD OF COUNTY COMMISSIONERS BY: Kurt Bressner, City Manager BY: Tony Masilotti, Chairman ATTEST: ATTEST: JANET M. PRAINITO, CITY CLERK SHARON R. 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AMOUNT CITY OF BOYNTON BEACH UTILITY ITEMS UTILITY PIPE REMOVAL 1,580LF $ 13.25 $ 20,935.00 (18" OR LESS) UTILITY PIPE GROUT 270 LF $ 13.25 $ 3,577.50 (8" OR LESS) PIPE (DI), F&I, FLANGED n LF $ 330.00 $ 23,760.00 CEMENT LINED, CLASS 53,16 IN PIPE (DI), F&I, RESTRAINED, n LF $ 330.00 $ 23,760.00 CEMENT LINED, CLASS 50,16 IN PIPE(D.Q,F&IRESTRAINED, I,923LF $ 61.00 $117,303.00 EPOXY LINED, CLASS 50, 8 IN PIPE (DI), F&I RESTRAINED, 48 LF $ 55.00 $ 2,640.00 CEMENT LINED, CLASS 50, 8 IN WATER FITTINGS, F&I, DI, 3 TN $ 7, no.OO $ 23,160.00 CEMENT LINED SAN SEWER FITTINGS, F&I, DI, 3 TN $ 9,930.00' $ 29,790.00 EPOXY LINED VALVE AS'SM, ADJUST & MODIFY 22 EA $ 440.00 $ 9,680.00 OR RELOCATE ATTACHMENT "B" VALVE ASSM, F&I, CI, 3 AS $ 4,965.00 $ 14,895.00 V AC/AIR COMB 150 PSI, 1" VALVE ASSM, F&I, CI, 1 EA $ 662.00 $ 662.00 GATE, 150 PSI, 6" VALVE ASSM, F&I, CI, 2EA $ 1,210.00' $ 2,420.00 GATE, 150 PSI, 8" VALVE ASSM, F&l, CI, 1 EA $ 1,985.00 $ 1,985.00 AIR RELEASE VALVE, 150 PSI, 2 IN VALVE ASSM, F&I, cr, 1 EA $ 3,310.00 $ 3,310.00 BUTTERFLY VALVE, 150 PSI, 16 IN CHEMICAL GROUT, REPAIR lEA $ 4,080.00' $ 4,080.00 (MANHOLE) F&I 16" X 8" TAPPING SADDLE, lEA $ 4,965.00 $ 4,965.00 VALVE & BOX ATTACHMENT "B" fECT NAME: LAWRENCE ROAD, BOYNTON BEACH BOULE V ARD TO GATEWAY BOULEVARD fECT NUMBER: 1997509 BERGERON LAND DEVELOPMENT, INC. ITEM QUANTITY /UNITS UNIT PRICE AMOUNT CITY OF BOYNTON BEACH UTILITY ITEMS(continued) CITY OF BOYNTON BEACH UTILITY ITEMS SUBTOTAL $ 286,922.50 CONTINGENCY ITEMS PREMIUM FOR CONFLICT 5 EA $ 3,860.00 $ 19,300.00 CONDITION (SEE SP's) FLOW ABLE FILL 10CY $ 181.95 $ 1,819.50 SUPPORT & PROTECT 50LF $ 22.00 . $ 1,100.00 16" WATERMAlN SUPPORT & PROTECT 50 LF $ 22.00 $ 1,100.00 8" WATERMAlN SUPPORT & PROTECT 50LF $ 21.00 $ 1,100.00 8" FORCE MAIN ADruST UTILITY MANHOLES 5 EA $ 880.00 $ 4,400.00 (INCL. CONCRETE COLLAR) CONTINGENCY ITEMS SUBTOTAL $ 28,819.50 GRAND TOTAL $ 315,742.00 ,vA Y'AGRM1\l 997509BBU-SUM.wpd 2 VI.-CONSENT AGENDA ITEM C.6 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM Requested City Date Final Form Must be Commission Meetinq Turned in to City Clerk's Dates Office [8J August 2. 2005 July 18.2005 (Noon.) 0 August 16. 2005 August 1. 2005 (Noon) 0 September 6.2005 August 15. 2005 (Noon) 0 September 20. 2005 September 6.2005 (Noon) Requested City Date Final Form Must be Commission Meetinq Dates Turned in to City Clerk's Office o October 5. 2005 o October 18. 2005 o November 1. 2005 o November 15. 2005 September 19. 2005 (Noon) October 3,2005 (Noon) October 17. 2005 (Noon) ( -- c: October 31. 2005 (NoQf1J f'.) , i-I 0 Administrative 0 Development Plans \J NATURE OF [8J Consent Agenda 0 New Business ....~ AGENDA ITEM 0 Public Hearing 0 Legal .;,.. 0 .r.:- 0 Bids Unfinished Business l~t 0 Announcement 0 Presentation 0 City Manager's Report r_, --.: ~c _..J~ 'Ii ~-qw -. r<i O:.t> 1""1"1 C") RECOMMENDATION: Staff recommends Commission approval by Resolution R05-_ The City of Boynton Beach's 2005/2006 Community Development Block Grant (CDBG) One-Year Action Plan. EXPLANATION: At the City Commission meetings of July 5th and July 19th. the City Commission. having reviewed both Citizen Review Committee and staff recommendations for funding next fiscal year. determined that the following activities will receive funding as detailed in the One Year Action Plan: Aid to Victims of Domestic Assault...................................................20.000 Boynton Beach Faith Based CDC .................................................... 70,000 Citizens Concerned About Our Children ............................................7.500 Community Caring Center.... .......... ...... ............ ................ ... .... ......... 50.000 Fair Housing Center (administrative)..................................................... 10,000 Housing Rehab & Delivery..............................................................217,558 PBC Resource Center..... ....................................... ......................... .25.000 Planning & Administration ..............................................................110,464 R. M. Lee CDC .................................................................................80.000 Summer Camp Scholarships............................................................11 ,800 TOTAL.......................................................................................... $602,322 PROGRAM IMPACT: The CDBG program's purpose is to help the City of Boynton Beach meet the needs of its lower income residents by offering a wide range of Community Development Activities. FISCAL IMPACT: The City Of Boynton Beach expects to receive $602,322 for this program to continue its Community Development efforts. Development Community Improvement Division Division Name Beach would have to use ad valorem dollars, or would have to ALTERNATIVES: discontinue its revit S:\Community Improvement\Agenda Requests\2005\CC 8-2-05 CDBG 1 YearPlan.doc 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 I 20 I I I 21 22 1 2 RESOLUTION ROS- 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING THE ADOPTION OF THE CITY OF BOYNTON BEACH'S 2005-06 COMMUNITY DEVELOPMENT BLOCK GRANT ONE-YEAR CONSOLIDATED ACTION PLAN; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Boynton Beach is entering into its ninth year of receiving federal grant funds as an entitlement community; and WHEREAS, a One-Year Action Plan has been developed with activities listed, setting forth how the City intends to utilize the funds available to best address urgent needs, which plan is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA THAT: Section I. The foregoing "Whereas" clauses are hereby ratified and confirmed 23 as being true and correct and are hereby made a specific part of this Resolution upon adoption 24 hereof. 25 Section 2. The City Commission of the City of Boynton Beach hereby approves 26 the adoption of the City of Boynton Beach's 2005-06 One Year Action Plan, which Plan is 27 attached hereto as Exhibit "A" and made a part hereof. 28 29 Section 3. This Resolution shall become effective immediately upon passage. S:\CA\RESO\05-06 One Year Plan (Comm lmp).doc " '------,.,"~"',-~~y.'> 1 2 PASSED AND ADOPTED this day of August, 2005. 3 4 CITY OF BOYNTON BEACH, FLORIDA S 6 7 Mayor 8 9 10 Vice Mayor 11 12 13 Commissioner 14 IS 16 Commissioner 17 18 19 Commissioner 20 ATTEST: 21 22 City Clerk S:\CA\RESO\OS-06 One Year Plan (Corrun Imp).doc VI.-CONSENT AGENDA ITEM E.! CITY OF BOYNTON BEACE AGENDA ITEM REQUEST FORM Requested City Commission Meeting Dates Date Final Form Must be Turned in to City Clerk's Office Requested City Commission Meeting Dates Date Final Fonn Must be Turned in to City Clerk's Office [8] August 2, 2005 D August 16, 2005 D September 6, 2005 D September 20, 2005 July 18,2005 (Noon.) D October 5, 2005 D October 18, 2005 D November I, 2005 D November 15,2005 September 19,2005 (Noon) August 1,2005 (Noon) October 3, 2005 (Noon) August 15,2005 (Noon) October 17,2005 (Noon) September 6, 2005 (Noon) October 3 1,2005 (Noon) ". .J --; NATURE OF AGENDA ITEM D Administrative [8] Consent Agenda D Public Hearing D Bids D Announcement D City Manager's Report D Development Plans D New Business D Legal D UnfInished Business D Presentation ,:...:J 2.-.;-J.-. :':: ~ .' CJ ~') --:""' '.-~~ .......- ~co .- l"1 '-?> i"S2 -'- 1'0 o RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Consent Agenda. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12, 2005. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-122. EXPLANATION: PROJECT: AGENT: OWNER: LOCATION: DESCRIPTION: Neelam (fka Schnars) Business Center (NWSP 05-022) J. Ernest Brady, Stephen James Inc. Anand D. Patel (Contract Purchaser) 924 N. Federal Highway Requestfor Site Plan approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use Low (MU-L) zoning district. PROGRAM IMPACT: N/A ~SCALIMPACT: N/A ALTERNATIVES: A9rf N/A DovelopM~ City Manager's Signature 2"fu \ vt--././ X Plannillg and Z ~Director City Attorney / Finance / Human Resources S:\Planning\SHARED\WP\PROJECTS\Schnars Business Ctr\Neelam NWSP 05-022\Agenda Item Request NeeJam (fka Schnars) Bus. Ctr NWSP 05-022 8- 2-05.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC DEPARTMENT OF DEVELOPMENT Memorandum PZ 05-122 DATE: RE: Chair & Members Community Redevelopment Agency Board ~Q0 Michael Rumpf, \ "- Planning & Zoning Director Ed Breese, Principal Planner July 6, 2005 Neelam (fka Schnars) Business Center - 924 North Federal Highway (NWSP 05-022) Re-review of expired site plan TO: THROUGH: FROM: Staff has received a request for New Site Plan approval (NWSP 05-022) of the previously approved Schnars Business Center (NWSP 02- 024) at 924 North Federal Highway. The project also previously received a Time Extension (SPTE 04-003). However, the original approval has now expired, the property is under contract and the applicant would like to construct the project as previously approved, under the name Neelam Business Center. Staff has conducted a review of the proposed plans to ensure consistency with the original approved drawings. Additionally staff has taken into consideration any changes in the development regulations since original approval, for conformance purposes. Attached is the original staff report (NWSP 02-024) dated January 29, 2003 and an updated set of Conditions of Approval (COA's), based upon the re-submitted plans. Staff concludes that the site plan (NWSP 05-022) is consistent with the previously approved plan and recommends approval, contingent upon all comments indicated in Exhibit "C" - Conditions of Approval. The Technical Application Review Team (TART) recommends that the deficiencies identified in this exhibit be corrected on the set of plans submitted for building permit. Also, any additional conditions recommended by the Board or City Commission shall be documented accordingly in the Conditions of Approval. DEVELOPMENT DEPARTMENT MEMORANDUM NO. PZ 03-025 SITE PLAN REVIEW STAFF REPORT COMMUNITY REDEVELOPMENT AGENCY BOARD AND CITY COMMISSION January 29, 2003 DESCRIPTION OF PROJECT Project Name/No.: Schnars Business Center /NWSP 02-024 Property Owner: Ruth R. Dolly Applicant/ Agent: Jeffrey Schnars, Schnars Engineering Corporation Location: 924 North Federal Highway Land Use/Zoning: Existing: General Commercial/C-4 (West Parcel), Mixed-Use/ Single-Family R-1-A (East Parcel) Proposed: Mixed-Use (MX)/Mixed-Use Low (MU-L) Type of Use: Professional offices and retail Project size: Site Area: Building Area: Floor Area: Lot Coverage: 22,838 square feet (0.52 acres) 3,388 square feet (0.08 acre) 8,754 square feet 15.4% Adjacent Uses: (see Exhibit "A" - Location Map) North - N.E. 9th Avenue right-of-way, and farther north, Boynton Beach F.O.E. #3944 lodge building, zoned C-4; South - An auto repair business (ND Auto Repair shop) zoned C-4; East Single-family neighborhood, zoned R-1-A; and West - North Federal Highway right-of-way, and farther west, a retail business (M&M Appliances), zoned C-4. Site Characteristics: The site is a vacant, rectangular-shaped lot, overgrown with grasses. The site is cleared and contains a row of Australian pines along the northeast property line. The site contains four (4) parcels (Lots 20, 21, 22, and 23) dissected by a 20-foot wide unimproved alley. On the west side of the unimproved alley, are located lots 21 through 23 with a General Commercial (GC) future land use designation and zoned General Commercial (C-4), while on the east side, is lot 20 with a Mixed Use land use classification (MX) and zoned Single-Family (R-1- A). Proposal: The developer proposes to construct a three (3) story, 8,754 square foot office / retail building located on a 0.52-acre lot (see Exhibit "B" - Proposed Site Plan). The proposed building height is 44 feet - 11 inches, which is below the 75-foot maximum allowed in the MU-L zoning district. A concurrent rezoning Page 2 Schnars Business Center - Site Plan Review Staff Report Memorandum No. PZ 03-025 request (LUAR 02-013) is proposed to bring all parcels under a single district as well as to utilize the preferable development restrictions of the MU-L district. Also being processed concurrently are a reclassification of parcels 21, 22, and 23 to Mixed Use, and the abandonment of a 20-foot wide alley (ABAN 02-003) (see Exhibit "C" - Conditions of Approval). Concurrency: a. Traffic- A traffic study for this project was submitted and sent to the Palm Beach County Traffic Division for their review and approval. Staff has received confirmation from Palm Beach County's Traffic Division regarding standards compliance. b. Drainage- Conceptual drainage information was provided for the City's review. The City's concurrency ordinance requires drainage certification at time of site plan approval. The Engineering Division is recommending that the review of specific drainage solutions be deferred until time of permit review, when more complete engineering documents are required. Driveways: On-site traffic circulation will consist of two (2), new driveway entrances measuring 24 feet wide providing ingress and egress along North Federal Highway and N.E. 9th Avenue. The entrance driveway on North Federal Highway is proposed to be located approximately 90 feet from N.E. 9th Avenue. As this driveway is proposed along a roadway classified greater than a local street, it must be separated from an intersection by not less than 180 feet. Therefore, the comments require the relocation or elimination of the driveway or receiving relief through the variance process. The second entrance drive on N.E. 9th Avenue is proposed at 120 feet from the North Federal Highway. A two-way drive aisle would provide access to the parking area located around the building, to the south and east portion of the property. Parking Facility: The Land Development Regulations require a minimum of one parking space per 300 square feet for an office use and one parking space per 200 square feet for a retail use. Using these ratios, the required number of parking spaces is 34. This is based on 19 spaces required for 5,726 square feet of gross floor area of office space (2nd and 3rd floors), and 15 spaces required for 3,028 square feet of retail space (1st floor). The applicant proposes a total of thirty-five (35) spaces for the proposed use, including two (2) spaces designated for handicap use along the southeast portion of the building and a 12-foot wide by 35-foot long loading area located at the southeast corner of the property, in front of the dumpster enclosure. All spaces, except the handicap space will be dimensioned nine feet by eighteen feet (9' x 18'). Landscaping: The landscaping of the site will fully meet the code requirements when staff comments are incorporated. The proposed pervious or "green" area is 6,098 square feet or 26.9% of the total site. The project perimeter landscaping includes a 7-foot wide buffer along the north (N.E. 9th Avenue) and west (N. Federal Highway) property lines. The north buffer will contain Montgomery Palm, Cabbage Palm, Guava, Red Tip Cocoplum, Imperial Blue Plumbago, Variegated Giant Liriope, and a Wax Myrtle Page 3 Schnars Business Center - Site Plan Review Staff Report Memorandum No. PZ 03-025 Hedge. The west buffer will contain Montgomery Palm trees and a Wax Myrtle hedge. A continuous Wax Myrtle hedge supplemented with Montgomery Palm Trees is proposed along the south property line. The applicant will provide the required six (6) foot masonry wall along the eastern property line of the site to separate the office/retail use from the adjacent Single-family zoning district. Along the side (east) perimeter buffer, inside of the wall, the landscape plan proposes two (2) Gumbo Limbo trees, two (2) White Bird of Paradise, and a row of red Hibicus hedges. The foundation plantings around the building are extensive, exceed code requirements and further enhance the site. This planting includes Red Tip Cocoplum, Purple Bougainvillea, Imperial Blue Plumbago, Evergreen Giant Liriope, and Xanadu Philodendron. The project entrances located on the western and northern property lines will be enhanced with Wax Myrtle hedges and will contain four (4) Tibouchina Granulosa trees meeting the code requirements for signature trees. The development will be provided with the required amount of perimeter and internal landscaping as required in the Land Development Regulations, Chapter 7.5 Article II. Building and Site: Building and site regulations will be fully met when staff comments are incorporated into the permit drawings. Community Design: The applicant describes the proposed building design as a Georgian style, three-story structure with a flat tile roof (Skandia by Entegra). All fa~ades of the building have been designed and articulated with architectural elements such as shutters, molding, and score lines positively contributing to the overall appearance of both the proposed building and North Federal Highway. The exterior walls of the proposed structure will have a smooth stucco finish painted between a light yellow (Glidden White Whisper 44YY 84/042) and dark yellow scheme (Glidden Candle Wax 79/168). The accent trim; windows and doors will be white (Glidden). Additional features such as aluminum railings will be painted black. The proposed entrances of the building will have covered double doors facing North Federal Highway and the east portion of the property adjacent to the parking area. Window planter boxes are located outside the second and third floor windows above the entrances, which further enhances the building's east and west fa~ades. The building height of 44 feet - 11 inches, is below the maximum 75 feet allowed in the MU-L district. This proposed design is original, as it offers no similarities with any other buildings in the immediate area. Staff support this building design as proposed because it will set higher standards for future development along Federal Highway and is consistent with the underlying concept of the new MU-L zoning district. Signage: Three (3) wall signs measuring 21 square feet each are proposed on the west elevation, fronting on North Federal Highway. A freestanding monument sign is proposed along North Federal Highway measuring seven feet and three inches (7'-3") high by eight feet and eight inches (8'-8") wide with the property address located on top. It will depict the name of the building's tenants. The monument sign will receive color and texture treatments similar to those of the Page 4 Schnars Business Center - Site Plan Review Staff Report Memorandum No. PZ 03-025 building. The base of the sign will be enhanced with Yellow Lantana shrubs. The proposed wall signs and the freestanding sign comply with sign standards including maximum sign area and height as set forth in the Land Development Regulations, Chapter 21. RECOMMENDATION: Staff recommends that this site plan request be approved, subject to the comments included in Exhibit "C" - Conditions of Approval. The Technical Review Committee (TRC) recommends that the deficiencies identified in this exhibit be corrected on the set of plans submitted for building permit. xc: Central File S:\Planning\SHARED\WP\PROJECTS\Schnars Business Center\NWSP 02-024\Statf report. doc " Location Map SCHNARS BUSINESS CENTER EXHIBIT "A" I I I I I ! I I I I I ! !! I II II i: Ii I I '. 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III \1, Il! ~~~~ ~Lr:- '''f ..~ ! \!~- f'.~ ~.~~ 8~g m!i~ ~ ,. .! ,,~ ~" ~"Ii I~!il sj .... ; ci f i 6~ N~~LAM BU~fN~ CnJT~R ~~ ~ ~i BOYNTON B~ACH ~~- BA(!' _ Boca Architect Corporation t=LORIDA ~.:.:""..:::.: ;::.=:.::'= -- ----.- ----------...---,,-.-....--. CONDITIONS OF APPROVAL New Site Plan Project name: Neelam Business Center (flea Schnars Business Center) File number: NWSP 05-022 Reference: 151 Review plans identified as a New Site Plan with a Julv 5. 2005 Planning and Zoning Department date stamp marking. DEPARTMENTS INCLUDE REJECT PUBLIC WORKS - General Comments: 1. A Royal Poinciana is depicted adjacent to the dumpster enclosure and will X create a vertical conflict with Solid Waste trucks. Please relocate at time of permitting. PUBLIC WORKS - Traffic Comments: 2. Provide a traffic analysis and notice of concurrency (Traffic Performance X Standards Review) from Palm Beach County Traffic Engineering prior to issuance of first permit. 3. All work done within the Federal Highway right-of-way shall require FDOT X approval and permitting. 4. The typical section on Sheet C-l is not in conformance with City Standards X for pavement sections. Please correct at time of permitting. ENGINEERING DIVISION Comments: 5. All comments requiring changes and/or corrections to the plans shall be X reflected on all appropriate sheets. 6. Please note that changes or revisions to these plans may generate additional X comments. Acceptance of these plans during the TART process does not ensure that additional comments may not be generated by the Commission and at permit review. 7. Indicate by note on the Landscape Plan, that within the sight triangles there X shall be an unobstructed cross-visibility at a level between 2.5 feet and 8 feet above the pavement (LDR, Chapter 7.5, Article II, Section S.H.) 8. The provided loading zone may hinder Solid Waste pickup. Collection of X Solid Waste takes precedence over loading and unloading. If the Loading Zone is occupied when Solid Waste arrives, trash may not be picked up. Staff recommends relocating the Loading Zone to accommodate both needs. 9. Provide an engineer's certification on the Drainage Plan as specified in X LDR, Chapter 4, Section 7.F.2. 10. Full Drainage Plans, including drainage calculations, in accordance with the X LDR, Chapter 6, Article N, Section 5 will be required at the time of COA 07/07/05 2 I u DEP ARTMENTS INCLUDE REJECT permitting. II. Paving, Drainage and Site details will not be reviewed for construction X acceptability at this time. All engineering construction details shall be in accordance with the applicable City of Boynton Beach Standard Drawings and the "Engineering Design Handbook and Construction Standards" and will be reviewed at the time of construction permit application. UTILITIES Comments: 12. Please provide a timeline that clearly illustrates when water and sewer X services will be required to serve the proposed project. Your starting date for the timeline should be the date of City Commission approval. Also provide milestone dates for permit application, the start of construction, and the setting of the first water meter. This time line will be used to determine the adequacy of water and wastewater treatment capacity for your project upon the project's completion, so please be as accurate as possible. 13. No Utility Plan was included with this submittal, therefore the Utilities X Department considers this plan incomplete as submitted. However, the proposed Site Plan is an existing site located within the Utilities' service area, and is located where utility support is available. In addition, this project has come before this committee when it was initially reviewed and approved approximately 1 Yz years ago. Therefore, we are providing only a cursory review of the proposed Site Plans as submitted at this time. Additional comments may be required after a Utility Plan has been submitted. 14. Palm Beach County Health Department permits may be required for the X water and sewer systems serving this project (CODE, Section 26-12). 15. Fire flow calculations will be required demonstrating the City Code X requirement of 1,500 g.p.m. (500 g.p.m. some residential developments) with 20 p.s.i. residual pressure as stated in the LDR, Chapter 6, Article IV, Section 16, or the requirement imposed by Insurance underwriters, whichever is greater (CODE, Section 26-16(b)). 16. The LDR, Chapter 6, Article IV, Section 16 requires that all points on each X building will be within 200 feet of an existing or proposed fire hydrant. Please demonstrate that the plan meets this condition, by showing all hydrants. 17. The CODE, Section 26-34(E) requires that a capacity reservation fee be X paid for this project either upon the request for the Department's signature on the Health Department application forms or within seven (7) days of Site Plan approval, whichever occurs first. This fee will be determined based COA 07/07/05 3 DEPARTMENTS INCLUDE REJECT upon final meter size, or expected demand. 18. Water and sewer lines to be owned and operated by the City shall be X included within utility easements. Please show all proposed easements on the engineering drawings, using a minimum width of 12 feet. The easements shall be dedicated via separate instrument to the City as stated in CODE Sec. 26-33(a). 19. A building permit for this project shall not be issued until this Department X has approved the plans for the water and/or sewer improvements required to service this project, in accordance with the CODE, Section 26-15. 20. PVC material not permitted on the City's water system. All lines shall be X DIP. 21. Utility construction details will not be reviewed for construction X acceptability at this time. All utility construction details shall be in accordance with the Utilities Department's "Utilities Engineering Design Handbook and Construction Standards" manual (including any updates); they will be reviewed at the time of construction permit application. FIRE Comments: NONE X POLICE Comments: NONE X BUILDING DIVISION Comments: 22. The elevator shall be designed to comply with 2001 FBC, Section 3003.4.2. X The minimum length and width shall be 76"x24" to accommodate a stretcher in the horizontal position. 23. The elevator shall comply with 2001 FBC, Section 11-4.10 for handicap X accessibility requirements. 24. A minimum of two (2) exits is required from each level and they shall be X remotely located per the 2001 FBC, Section 1004.2.1, 1004.1, 1004.1.2, 1004.1.4. 25. Elevators shall not be in a common enclosing shaft with a stairway, and the X path of travel from one flight of stairs to the next shall not pass directly in front of elevator doors. COA 07107/05 4 . DEPARTMENTS INCLUDE REJECT 26. Clearly show access to the first-story tenant. Is it under the stairs? ClarifY. X The minimum clear width between the stairs and the wall of the first floor tenant space shall comply with 2001 FBC, Table 1004.1. 27. This building is classified as Type II construction. Wood roof and trusses X are not permitted by code for Type II construction. Read 2001 FBC, Table 500 for compliance. PARKS AND RECREATION Comments: NONE X FORESTER/ENVIRONMENTALIST Comments: NONE X PLANNING AND ZONING Comments: 28. Increase the size of the Sabal Palms to 16- 20 feet of overall height and the X Montgomery palms to 18-20 feet of overall height. 29. Ensure buffer wall is placed along the entire south property and is extended X westerly to the proposed dumpster enclosure. ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY BOARD CONDITIONS Comments: I NONE X ADDITIONAL CITY COMMISSION CONDITIONS Comments: 2. To be determined. MWRJscS:\Planning\SHARED\WP\PROJECTS\Schnars Business Ctr\Patel NWSP 05-022\COA.doc DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: Nee/am Business Center- APPLICANTS AGENT: Anaheim Properties APPLICANTS ADDRESS: 1155 SW 25 th Avenue Boynton Beach, FL 33426 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: August 2, 2005 TYPE OF RELIEF SOUGHT: Request Site Plan approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use Low (MU-L) zoning district. LOCATION OF PROPERTY: 924 North Federal Highway, Boynton Beach DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO. X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida appearing on the Consent Agenda on the date above. The City Commission hereby adopts the findings and recommendation of the Community Redevelopment Agency Board, which Board found as follows: OR THIS MATTER came on to be heard before the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the relief sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: 1. Application for the relief sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. 2. The Applicant HAS HAS NOT established by substantial competent evidence a basis for the relief requested. 3. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "C" with notation "Included". 4. The Applicant's application for relief is hereby _ GRANTED subject to the conditions referenced in paragraph 3 hereof. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other DATED: City Clerk S:\Planning\SHARED\WP\PROJECTS\Schnars Business Ctr\Patel NWSP 05-022\DO.doc Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 Chair Heavilin opened the floor to the public, and closed it when no one wished to speak. Mr. Fenton took issue with the passive voice in some of the Conditions of Approval, pointing out item 1 that asks: "Please indicate number and size of containers." He felt that a more declaratory or dictatorial tone was in order. Mr. Johnson responded that staff was confident that all the conditions would be met and if not, permits would not be issued. Staff felt that it had protected the City with the Conditions of Approval. A large number of the conditions had already been satisfied. Mr. DeMarco confirmed with the agent that the applicants were in agreement with all 71 Conditions of Approval and were adding two more. He expressed appreciation for what the developers had done for that corner of the City. Mr. Johnson declared that staff agreed with the two new conditions of approval suggested by the applicant. Motion Ms. Horenburger moved to amend the Comprehensive Plan Future Land Use Map from Local Retail Commercial to Special High Density Residential (LUAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0. Motion Ms. Horenburger moved to approve the request to rezone from C-3 Community Commercial to PUD Planned Unit Development (LUAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0. Motion Ms. Horenburger moved to approve the Site Plan approval for the Heritage Club at Boynton Beach (NWSP 05-014) subject to all 73 Conditions of Approval. Mr. Fenton seconded the motion. Chair Heavilin commented that the applicant had raised the bar for development in Boynton Beach. She thought it was the best project the board had seen. Mr. Mankoff commended City staff for its efforts. The motion passed 5-0. Motion Mr. Fenton moved to approve the request for height exception of 10 feet for Heritage Club of Boynton Beach (HTEX 05-004). Vice Chair Tillman seconded the motion that passed 5-0. C. New Site Plan 1. Project: Neelam (fka Schnars) Business Center (NWSP 05-022) J. Ernest Brady, Stephen James Inc. Anand D. Patel (Contract Purchaser) 924 N. Federal Highway Request for Site Plan approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use Low (MU-L) zoning district. Agent: Owner: Location: Description: Ed Breese, Principal Planner, stated that this property had changed hands and the site plan approval expired. The new owner would like to build the same building as previously approved. 11 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 Chair Heavilin opened the floor for the public, and closed it when no one wished to speak. Motion Ms. Horenburger moved approval of NWSP 05-022, Neelam Business Center, request for Site Plan approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use Low (MU-L) zoning district. Vice Chair Tillman seconded the motion that passed 5-0. THE MEETING RECESSED FROM 8:06 P.M. TO 8:12 P.M. D. Condominium Hotels in Mixed Use Districts Code Review 1. Project: Condominium Hotels in Mixed Use Districts (CDRV 05-013) Staff-initiated Mixed-Use High Intensity (MU-H) and Mixed Use Low Intensity zoning districts Request to amend the Land Development Regulations, Chapter 2, Section 6.F Mixed Use Zoning Districts to add "Hotel, Extended Stay" as a permitted use in the Mixed Use-High Intensity (MU- H) zoning district; as a conditional use in the Mixed Use-Low Intensity (MU-L) zoning district; and to amend the definitions of "Hotel" and "Hotel, Extended Stay" to include condominium hotel units. Agent: Location: Description: Dick Hudson, Senior Planner, reviewed this request, stating that the "condo hotel" had become a popular product in the hotel industry since the project could be financed more like a residential condominium project. Many local governments are revisiting their LDRs and making revisions to address this type of project and insure that the facilities truly operate as hotels and not residential developments. An owner would be limited to a six-month stay per year to assure that individuals do not take up permanent residence in the units. The condo hotels would probably take the form of an "extended stay hotel," so City staff is recommending that the City Commission amend the permitted uses table for the "Mixed Use-High" zoning district to make it clear that "extended stay hotels," which would be the likely category to accommodate a condo hotel, are permitted in that district. Staff recommended approval of this item. Ms. Horenburger inquired whether the County's Bed Tax would come into play for stays shorter than six months. Mr. Hudson responded that it would be subject to the Bed Tax because it would be considered transient lodging. Ms. Horenburger asked the difference between the condo hotel and the condo with mostly seasonal residents. Mr. Hudson said that a condo was considered a residence and the residential parking regulations would apply. A hotel was considered a commercial use. The parking requirements for condos and hotel condos were very similar (one bedroom condos call for 1.33 per unit and hotel condos call for 1.25 per unit). Mr. DeMarco asked if the condo laws would apply to the hotel condos. Mr. Hudson believed it did. Mr. DeMarco suggested the City contact someone who could give an authoritative answer on this. 12 VI.-CONSENT AGENDA ITEM E.3 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM Requested City Commission Date Final Fonn Must be Turned Requested City Commission Date Final Fonn Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office 1ZJ August 2, 2005 July 18,2005 (Noon.) D October 5, 2005 September 19,2005 (Noon) D August 16, 2005 August 1,2005 (Noon) D October 18, 2005 October 3, 2005 (Noon) D September 6, 2005 August 15,2005 (Noon) D November I, 2005 October 17,2005 (Noon) D September 20, 2005 September 6, 2005 (Noon) D November 15, 2005 October 3 1,2005 (Noon) NATURE OF AGENDA ITEM D 1ZJ D D D D Administrative Consent Agenda Public Hearing Bids D D D D D Development Plans New Business .: ) :-") --i -:-< " "-, '. -. ,J.'; Announcement City Manager's Report Legal UnfInished Business Presentation :::J 0) , , .'''~~ ~-; , (::J ':""'''':) _.- .~, --=--' .':1...... --qCO -c.-fTl ~.:~~ RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Consent Agenda. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12, 2005. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-121. EXPLANATION: PROJECT: AGENT: OWNER: LOCATION: DESCRIPTION: 2625 Lake Drive North (ZNCV 05-003) Jeff Tomberg Avon Investments, Inc. 2625 Lake Drive North Request for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a seventy-fIve (75) foot minimum lot frontage to allow a 22-foot variance, resulting in a fIfty-three (53) foot minimum lot frontage within the R-l-AA Single-family Residential zoning district. PROGRAM IMPACT: FISCAL IMPACT: ALTERNATIVES: N/A N/A N/A ~~~J:;5 l&J~ ~- Planning and oning Director Ci~ Attorney / Finance / Human Resources S:\Planning\SHARED\WP\PROJECTS\2625 Lake Drive North\Agenda Item Request 2625 Lake Dr North ZNCV 05-002 8-2-05.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 05-121 STAFF REPORT To: Chair and Members Community Redevelopment Agency Board and City Commission From: Michael Rumpf Planning and Zoning Director Eric Lee Johnson( AICP W Planner 0 Through: Meeting Date: July 12( 2005 File No: ZNCV 05-003 Location: 2625 Lake Drive North (Lots 31 & 32 in Lakeside Gardens) Owner: Avon Investments Incorporated Project: Construct a single-family detached home Request: Request for relief from the City of Boynton Beach Land Development Regulations( Chapter 2( Zoning( Section 5.C.2( requiring a seventy-five (75) foot minimum lot frontage to allow a 22-foot variance( resulting in a fifty-three (53) foot minimum lot frontage within the R- 1-AA Single-family Residential zoning district. BACKGROUND Mr. Jeff Tomberg( agent for the property owner (Avon Investments Incorporated) submitted the variance request on April 20( 2005 (see Exhibit "e"). As of today( this office has not received any letters of support or denial by the neighboring property owners. The subject property is comprised of two (2) lots( zoned R-1-AA( single-family residential (see Exhibit "A" - Location Map). They are located on the east side of Lake Drive North( just south of the intersection of Lake Drive North and Dimick Road. The lots were platted on January 22( 1922 as part of the Lakeside Gardens subdivision. Both lots combined form a single parcel that is dimensioned 53 feet in width and 160.69 feet in depth. The width of the lot is wider at the street front (Lake Drive North) than it is at the rear (along the Intracoastal Waterway). Evidently( the owner was able to acquire a three (3) foot wide sliver of land from the property to the south (Lot 33). This sliver of land is approximately 55 feet deep. A single-family detached home was previously built on the property. However( Building Permit #04-4869 permitted the demolition of the existing house. Now( the 0.188-acre parcel is vacant and does not conform to current R-1-AA zoning district regulations as it relates to lot width. The owner applied for a building permit (#05-1493) to construct a new single-family detached dwelling. The district regulations of the R-1-AA zoning district are as follows: . Minimum lot area: 7(500 square feet if lot is platted prior to June 13( 1975 . Front and Rear setback: 25 feet; . Side setback: 7.5 feet if lot is platted prior to June 13( 1975 . Maximum Lot Coverage: 35% ,,.,.;"...,....'_, iI""" f'.1:JilI"._.~--"""'~""""_"";",'''''''.'''""''''~'''''C Page 2 2625 Lake Drive North Variance File No. ZNCV 05-003 The survey (Exhibit "8") shows that placement and configuration of the house, proposed on the subject parcel, would be located 25 feet from the front property line, seven and one-half (7-lh) feet away from the side property lines, and over 39 feet from the rear property line. The placement of the new house would comply with code, except that the lot frontage does not meet the minimum required by the R-1- AA zoning district. The property has been zoned R-1-AA since 1961. ANALYSIS According to Chapter 1.5, Article II, Section 2.1.0. of the Land Development Regulations, the zoning code variance cannot be approved unless the board finds the following: a. That special conditions and circumstances exist which are peculiar to the land, structure/ or building involved and which are not applicable to other lands/ structure~ or buildings in the same zoning district. b. That the special conditions and circumstances do not result from the actions of the applicant. c. That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands/ buildings/ or structures in the same zoning district. d That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the ordinance and would work unnecessary and undue hardship on the applicant. e. That the variance granted is the minimum variance that will make possible the reasonable use of the land, building/ or structure. f. That the granting of the variance will be in harmony with the general intent and purpose of this chapter [ordinance] and that such variance will not be injurious to the area involved or othe/Wise detrimental to the public welfare. g. For variances to minimum lot area or lot frontage requirements/ that property is not available from adjacent properties in order to meet these requirements/ or that the acquisition of such property would cause the adjacent property or structures to become non-conforming. The applicant for such variances shall provide an affidavit with the application for variance stating that the above mentioned conditions exist with respect to the acquisition of additional property. Staff reviewed the requested variance focusing on the applicant's response to the above criteria contained in Exhibit "C". With regards to the applicant's response to criteria 'a// and ''b/; special conditions or circumstances appear to be peculiar to the land on which this variance is being sought. Despite the fact that the property owner acquired a three (3) foot wide sliver, the lots were platted in 1922 with widths of 25-foot. During the course of time, various property owners combined two or more lots to form parcels that were practical to build upon. The subject property is one such parcel where two (2) lots have been combined and a house could be built and meet the zoning district's required setbacks. With regard to criteria" e', no special privilege would be granted to the applicant because a number of similar lots within this subdivision (with 50-foot lot frontage) have houses built upon them (see Exhibit "0" - Aerial photograph). Likewise, literal interpretation of provisions of the hardship criteria would in fact, deprive the applicant of the rights previously enjoyed by other properties in the same zoning district within the same subdivision. With respect to criteria "e' and "t', the variance sought would be the minimum necessary to make possible the reasonable use of the land for a single- Page 3 2625 Lake Drive North Variance File No. ZNCV 05-003 family detached home. Granting of the variance would not change the nature or character of the neighborhood due to the fact that there was a house already built on the property. Contemporary homes (built within this area of the city) tend to be constructed larger in size than their predecessors. Larger homes are the product of rising property values in conjunction with diminishing supply of vacant properties, especially within desirable areas of the city. Staff has no objection to larger homes, as long as these homes are built in accordance with the regulations of the R-1-AA zoning district. It appears as though the proposed survey shows the placement of the house would comply with all setback regulations. Lastly, the aerial photograph shows that the subject property is bounded by Lot 33 of Lakeside Gardens to the south (improved with a single-family home), and a 4.2-foot wide walk easement of the plat to the north; the subject lots cannot be expanded to either the north or the south. It should be noted that last year, Mr. Rod Regan attempted to abandon the walk easement to the north in order to acquire additional property. However, his abandonment request was denied by the City Commission. Therefore, there would be no future opportunity for acquiring additional property. Under Chapter 2/ Section 11.1.C.3, Non-Conforming Lots, a detached, single-family dwelling may be constructed on any parcel in an R-1-AA district, without requiring a variance, provided that it meets the following requirements: 1) the parcel contains at least one whole platted lot; 2) the parcel has a frontage of not less than 60 feet, and a lot area of not less than 6/750 square feet in area; and 3) it would not be possible to acquire property from adjacent parcels so as to make the subject parcel conforming, without causing the adjacent parcels or structures thereon to become non-conforming or more non-conforming. The applicant would meet all of the criteria for being allowed to construct a home without the necessity of a variance under these non-conforming provisions, except if the applicant has 53 foot frontage and not the requisite 60 feet, a deficit of 7 feet. CONCLUSIONS/RECOMMENDATION As analyzed above, the proposed variance request would appear to comply with the entire above- referenced criteria. It is a challenge to the city to know when to adhere to new zoning regulations, and therefore through attrition bring neighborhoods up to current standards, and when to recognize development rights established, in part, by original platting. However, staff has arrived at this conclusion based on the fact that the property remains as originally platted, various properties in the neighborhood have been improved that are similar in size, that the total width of the subject lot is only eight (8) feet narrower than the minimum width required for the R-1-AA zoning district for a legal non- conforming lot, and based on the inability to expand the subject lot to a conforming width. Therefore, staff recommends approval of the requested variance of 22 feet, to reduce the minimum required lot frontage from 75 feet to 53 feet, within the R-1-AA zoning district. No conditions of approval are recommended by staff. Any conditions of approval added by the Community Redevelopment Agency or City Commission will be placed in Exhibit "E" - Conditions of Approval. S:\Planning\SHARED\WP\PROJECfS\2625 Lake Drive North\Staff Report.doc Exhibit 'A' - Location Map . 50 25 0 I 50 100 150 200 I Feet ..' < Z.Z"I '" TIE Q '" '" PROf"O':>ED Z. 'l/ DKIVE TIE ~ 7.50 ZI.n ;;. TIE 8' , ' Q c'" ILl I~~ c", ;.. Q '" ~'" -;~ '" <Y or "'>-- '" Z N ... '- Z5.00 ; ZZ.OO N 00'00'00 E ~ 5; .00' 5;.03' .\ ')11> t~ ,~I>, .p, ~.. ., \ 7.50 TIE Q '" <Y '" C '" IlJ C, ~ c 8 '" ". ~ <Y Z t- o .J ~ '1. ~ LAKE WORTH WATERWAY 500;' '? O0'4"'OO'E '=J\.HII:$/I t3 @ Z1 }O '>ITE D IMICI( IW '6' j; }, }4 '" ~ }5 2 " ~ }7 >- ~ 1Z ! 1} ILl 11 I :t 15 ~ l' 'f1 ~ POTTEK ro. 'l6 ILl 11 '-- L.OGA T I ON MAP N.T.'? ~ DKA I NAGE NOTE?: nOOP Za>E: A7 lEI. 1) 01/}0/6Z CCM.oU>lITY-PAN:L NO. I za l' 0004 C MAP KfV I '!>ED: ">!:PTE>.eEK}O, I 161 . LOT AREA . 6ZZ0.'Z ?Q FT ,,/- PKOf'EK'TY AODte:E'Y.>: Z'Z5 I..AKE DKIVE I>VfitTH OOYNTON flEACH, FLORIDA H4}5 CERT IFY TO: AVON 1~lM"NT?, INC. lA'-lIT!:D 6/3'.EKAl. TITLE IN">I.JRANCE WRIWY ~ HOOKfK f CCM'ANY TITLE IN':>IJRANCE A6ENCY, IN(; NOTI'? : I L-N'ER6IW\.W IJT I LIT I B WERE NOT LOGATfD EXCEI"T A'> '>HO\1IN. Z . ~ l.ND? _ 1-E1tE0N WERE NOT Al)';TKACTEP !>Y '>URVEYOR FOR EA?fM:NT,,>, RIGHT-OF-WAY">, KE">EKVATlOtb I>N) OTH"K '" 1M I LAIt w,TTEK"> OF KEcoro. ELEVATlOtb AItE N.\TICl'W- (CODETIC VERTICAl. DATW OF I 'lZ1. 4. flEAIt I~ ARE M'!>ED ON Tt-f' WE?T f!:/'I' I. II\{' OF LAKE ">IDE DRIVE, A'nI.M:D TO DEAK N 00 00'00' E. 5 . ~ON ROD I>N) CAP \.N..E'Y.> NOTED, , . DENOn:"> I"KOf"O':>ED LOT 6KADB. 7. DEr-I?TE"> EX I?TlN6 LOT 6f!:ADE? ~ ci ~ ... N ~ ~"". ~I'\, t~ t~ ~.l> ,~lr? L:;KE D:I:~ -~k:IRTH" f~ ~- Il PLOT I"LAN Z-Z4-05 " ADD EXI"HIN6 f I'ROPO':>ED E\...EVATIOtb I Z-o.;-04 REVI">!: CERTIFICATION 1-0%-01 LEGEI'D : F - FIELD fN) . - I"O\.W UN;. . UN;r:ETE B-. - E\...EVAT I ON NfD - N.\IL f DIO;(; f!:/'I' - KIGHT Of' WAY ?e. - "Xl\.lT1-f:1:N I'lELL I K4C - IIl:ON KOD . CAP \.I.E. - IJTILITY EA~ NHT - N.\IL I>N) TIN T.0 M. E . . M4INTENANCE EA"!>fU:NT FP4L - FLCK IDA 1'0'fEf!: . 1.1 GHT I".c,r.- rE~ CONTKOl. rOINT @ - It'ATEK t.VEr: @ '~f!: ~ ... <> ~>-- ... "'" o WITHOUT THE ,?16NATURE AND THE ORI61NAL RAI?ED '?EAt.. OF A FLORIDA LIGEN?ED '?URVEYOR ER. . BOIJl\DARY '?LJRVEY L.O'T? THIRTY-ONE (, I I AN:> lHIRTY-T'fO Oll, IN l-AKE'?IDE 5ARDEN'?, A ':>t.e- DIVI'::IION Of' 'THE TO'IN Of' OOVNTON, Fl-ORIPA.. AGWRPIN6 TO 1HE PUT Of' <;AIP ?t.WIVI'::lION REWRDEP IN TH: Of'FICE Of' TH: G/...CRK OF 'THE GIRWIT GOUIIT IN /JK) FOR P'AW ~GH COl.MY. Fl-OR I O~. IN P'l-A T i'OOK 6 AT PAGE 51. /JK) TH: I-<<lH l1-<<EE FEET OF THE 'fE<}T 5'.5 FEET OF l.OT THIRTY-THREE "'1. ~ .> o " " .. 1'i .1 o .1 33 ZNJ FLOOR LINE ",I>" ..,(11 ;... 7.50 TIE ~ 8:..", . <0 '" ~.r:f-- ~~:l z '5.00 PROPO,?ED RE'?IDENCE FF-I 0.00 "' " <> "' rP '\. I }. 75 7.50 TIE IU 8 Q c). 88 z'" U1\IERED % 3-1 I -04 ~ PAre: I . -1.0' %AI.E : FIL-E 1".1>. r, UN I VER'?AL. C;URVEY I N6 C;YC;TEM?, I NG . CE~IFICATE a= A~IZATI~ ru.cfR ~ 5q&1 1'2' I...AKE D~IVE N?RTH OOYNT~ !:lEACH, ~IDA ".." OFFICE: 5Q -7"-04'2 FAX: 5Q -7"-OQ06 00-1 I -033 EXHIBIT C Application for variance of Rod Regan, Avon Investments, Inc. Statement of Special Conditions: A. Special conditions exist which are peculiar to the land which are not applicable to other land in the same zone and district. Result from the property being platted prior to the modern zoning codes. This Plat dates back more than 50 years. At the time the individual lots were platted in 25-foot frontage by 160' depth. The applicant owns Lots 31 and 32, and has a 3' parcel relating to Lot 33. B. The special conditions arise from the lot having been previously platted and the City amending or altering the size frontage requirements for single family residential lots. The non-conforming use existed prior to the purchase of the property by the applicant. C. Granting the variance will not confer on the applicant any special privilege denied by this ordinance against other lands or structures in the same zoning district, or simply allow the applicant to build on property he currently owns that previously had a residence on it. D. Literal interpretation of provisions of this chapter would deprive the applicant of the rights commonly enjoyed by other properties in the same zoning district by precluding him from building on a previously-built residential lot, which at the time it was originally platted and built upon, the two lots conformed with necessary zoning codes. Currently the zoning and ordinance in questions requires a 60-foot frontage, and the applicant does not have 60 front feet. E. The variance granted is the minimum variance that will make possible the reasonable use of this property. The reasonable use of this land is for a single family residence, and without the variance this property is non-conforming because it does not have the necessary frontage to comply with the ordinance. F. The granting of the variance is consistent with the purpose of this chapter and the variance does not change the nature or character of the neighborhood; nor does it change the nature or character of the lot; nor is it otherwise detrimental to the public welfare. Granting the variance will permit the applicant to remain consistent with the nature and character of the existing neighborhood and consistent with the existing use of the property. It is not injurious to the character of the neighborhood in any respect. G. Variance of minimum lot front requirements is not available to be purchased by the applicant, as the property on Lot 33 currently has a residence on it and the necessary frontage cannot be acquired by the applicant on the south side. On the north side there is an easement for ingress and egress to the Lake Worth waterway which cannot be acquired by applicant. There is no possible way to acquire sufficient frontage to comply with the zoning code. '=XHrr?,'~ ~ ~z ...... ~ o -..j o o ...... ~ o "T1 (1) ~ ..' tIl I\J 0) I\J CJ1 r Q) A CD o -., -- < CD Z. o ;:4. :::T S' II co o ~ - CD m. . hl ~U& l rr';"'-,'> . l_~T ~ EXHIBIT "E" Conditions of Approval Project name: 2625 Lake Drive North File number: ZNCV 05-003 Reference: DEPARTMENTS INCLUDE REJ.:d PUBLIC WORKS- General Comments: None X PUBLIC WORKS- Traffic Comments: None X UTILITIES Comments: None X FIRE Comments: None X POLICE Comments: None X ENGINEERING DIVISION Comments: None X BUILDING DIVISION Comments: None X PARKS AND RECREATION Connnents: None X FORESTER/ENVIRONMENTALIST Comments: None X PLANNING AND ZONING Comments: None X ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY BOARD CONDITIONS Conditions of Approval 2 DEPARTMENTS INCLUDE REJECT Comments: 1. None X ADDITIONAL CITY COMMISSION CONDITIONS Comments: I I 2. To be determined. I I S:\Planning\SHARED\WP\PROJECTS\2625 Lake Drive North\COA.doc S:\Planning\Planning Templates\Condition of Approval 2 page -P&D ORA 2003 form.doc DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: 2625 Lake Drive North APPLICANT'S AGENT: Mr. Jeff Tomberg, J.D.; P.A. APPLICANT'S ADDRESS: 626 Southeast 4th Street Boynton Beach, FL 33435 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: August 2, 2005 TYPE OF RELIEF SOUGHT: Request for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a seventy-five (75) foot minimum lot frontage to allow a 22-foot variance, resulting in a fifty-three (53) foot minimum lot frontage within the R-1-M Single-family Residential zoning district. LOCATION OF PROPERTY: 2625 Lake Drive North DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO. X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida appearing on the Consent Agenda on the date above. The City Commission hereby adopts the findings and recommendation of the Community Redevelopment Agency Board, which Board found as follows: OR THIS MATTER came on to be heard before the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the relief sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: 1. Application for the relief sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. 2. The Applicant HAS HAS NOT established by substantial competent evidence a basis for the relief requested. 3. The conditions for development requested by the Applicant, administrative staff. or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "C" with notation "Included". 4. The Applicant's application for relief is hereby _ GRANTED subject to the conditions referenced in paragraph 3 hereof. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other DATED: City Clerk S:\Planning\SHARED\WP\PROJECTS\2625 Lake Drive North\DO.doc Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 coverage with the proposed project would be 38.5% or a variance of 3.5%. Staff had not received any letters in support or denial from the surrounding property owners. Staff recommended that the project be denied for lack of traditional hardship. The board may wish to consider, however, that an ordinance to amend the LOR to allow maximum lot coverage of 45% in R-l-AA zoning districts had passed first reading at the City Commission and was scheduled for second reading on July 19, 2005. If the ordinance passed, this issue would be moot. Attorney Jeff Tomberg appeared on behalf of the owners, Mr. and Mrs. John Trach. He stated that there was a pending Code Enforcement issue on this property for the addition of a balcony that would be between the first and second floor of the home. The variance was being sought because his clients hired a contractor to put in a balcony, assuming he had pulled the appropriate permits and gotten the appropriate permissions. The contractor proceeded to erect the balcony. Code Enforcement notified the Trachs that they were in violation of the City's Code. If the variance were not granted, it would seem unfair to have the Trachs tear down the balcony now and come back for a new permit if the new LOR ordinance were approved at the next City Commission meeting. The Code case had not proceeded to the fine stage and was not going to be heard again until the September Code meeting. After discussion by the board, it was decided to continue this item pending Commission action. Motion Ms. Horenburger moved to continue request ZNCV 05-002 until the next regularly scheduled CRA meeting pending Commission action. Vice Chair Tillman seconded the motion that passed 5-0. 2. Project: Agent: Owner: Location: Description: 2625 Lake Drive North (ZNCV -05-003) Jeff Tom berg Avon Investments, Inc. 2625 Lake Drive North Request for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a seventy-five (75) foot minimum lot frontage to allow a 22-foot variance, resulting in a fifty-three (53) foot minimum lot frontage within the R-l-AA Single-Family Residential zoning district. Eric Johnson, Planner, presented a summary of the request for variance, stating the subject property is comprised of two lots that form a single parcel, zoned R-l-AA. The lots were platted in 1922 as part of the Lakeside Gardens subdivision. The 0.188-acre parcel is vacant and does not conform to current R-l-AA zoning district regulations related to lot width. The owner applied for a building permit to construct a new single-family detached dwelling. From a preliminary review, the placement of the house would comply with Code, except that the lot frontage does not meet the minimum required by the R-l-AA zoning district. According to the Code on non-conforming Lots, the applicant would meet all of the criteria for being allowed to construct a home without the necessity of a variance, under these non-conforming provisions, except the applicant has 53 feet of frontage and not the requisite 60 feet, a deficit of 7 feet. Staff recommended approval of the requested variance of 22 feet, to reduce the minimum required lot frontage from 75 feet to 53 feet. Jeff Tomberg, agent for Avon Invesbnents, Inc., asserted that Avon Investments had been building homes in Boynton Beach for the last eight to nine years. He had built in excess of 100 4 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 homes in the Cypress Creek community and was in the process of building and rebuilding in Atlantis Country Club. They believe that this house would be an asset to the community. Chair Heavilin opened the floor to the public. Mike Mrotek, 2624 Lake Drive North, Boynton Beach, speaking on behalf of the Lakeside Gardens residents, expressed opposition to the granting of this variance because there was a 30% difference between the Code and the request. Chair Heavilin closed the floor to the public since no one else came forward to speak. Jeff Tomberg stated that the variance should be granted because all of the legal criteria necessary to allow the variance had been met. The house would comply with all setback and other requirements. Chair Heavilin voiced the opinion that the City had a number of lots in the City that were platted many years ago and did not conform to the current Code. She thought the board should continue to address the 50-foot lot frontage requests as special cases. The board supported her view. Motion Mr. DeMarco moved to approve the request (ZNCV 05-003) for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a seventy-five (75) foot minimum lot frontage to allow a 22-foot variance, resulting in a fifty-three (53) foot minimum lot frontage within the R-1-AA Single-Family Residential zoning district. Vice Chair Tillman seconded the motion that passed 5-0. 3. Project: 625 NE 15th Place (Deasy Variance) (ZNCV 05 05-005) Maryanne and John Duncan Maryanne Deasy 625 NE 15th Place Request for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a ten (10) foot side yard setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a screen enclosure within the R-1-AA Single-Family Residential zoning district. Agent: Owner: Location: Description: Ed Breese, Principal Planner, stated that the request had been initiated due to the homeowner's desire to screen an existing pool. The former owner did not take the location into account and as a result, created a situation that now limits the applicant's ability to construct the enclosure within the setback regulations. Based on the traditional hardship criteria, staff believed that the variance request should be denied. However, the board has previously granted variances for other than hardship criteria, and may want to consider that: 1) This was not a case where the applicant built the maximum size pool knowing it would preclude the installation of a screen enclosure and was now requesting to vary the City regulations to accommodate one; 2) The subject request represents the minimum amount of area required to screen the pool and deck, based upon the existing improvements; and 3) Staff had not 5 C<~\f ~ ,C:,,,- " ,\ \ I.),;.;. , /:.;:{ (; CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VI.-CONSENT AGENDA ITEM E.4 Requested City Commission Date Final Fonn Must be Turned Requested City Commission Date Final Fonn Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office I:8J August 2, 2005 July 18,2005 (Noon.) D October 5, 2005 September 19,2005 (Noon) D August 16, 2005 August 1,2005 (Noon) D October 18, 2005 October 3, 2005 (Noon) D September 6, 2005 August 15,2005 (Noon) D November I, 2005 October 17,2005 (Noon) D September 20, 2005 September 6, 2005 (Noon) D November 15,2005 October 31, 2005 (Noon) D Administrative D Development Plans ~ --' ! I:8J D t NATURE OF Consent Agenda New Business ~- ,.~=" AGENDA ITEM D Public Hearing D Legal D D G.:> Bids Unfmished Business D D _r.':) Announcement Presentation D City Manager's Report \",i..) --'-:'1 ."\ _4 ~., (:) RECOMMENDATION: Please place this request on the August 2, 200S City Commission Agenda under Consent Agenda. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12, 200S. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ OS-118. '1 -r; co ~ .'. rr-; ':-::2:> "In ::c EXPLANATION: PROJECT: AGENT: OWNER: LOCATION: DESCRIPTION: 625 NE 15th Place (Deasy Variance) (ZNCV 05-005) Maryanne and John Duncan Maryanne Deasy 62S NE ISth Place Request for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section S.C.2, requiring a ten (10) foot side yard setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a screen enclosure within the R-l-AA Single-family Residential zoning district. PROGRAM IMPACT: N/A ~SCALIMPACT: NM AL TERNA TIVES: N/ A D'Vel~' l.cJ ~ Planning and Zo . g irector City Attorney / Finance / Human Resources S:\Planning\SHARED\WP\PROJECTS\625 NE 15th Place - Deasy\Agenda Item Request 625 NE PI (Deasy)ZNCV 05-005 8-2-05.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM,DOC DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM #05-118 Staff Report Community Redevelopment Agency Board Meeting Date: July 1, 2005 File No: ZNCV 05-005 Location: 625 NE 15th Place (Lot 17, Yachtsman's Cove Subdivision) Owner: Maryanne Deasy Project: Pool screen enclosure for an existing single-family dwelling. Variance Request: Relief from Chapter 2, Zoning Section 5.C.2, requiring a ten (10) foot side yard setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a screen enclosure within the R-1-AA Single-family Residential zoning district. BACKGROUND The subject property and surrounding neighborhood is zoned R-1-AA, single family residential (see Exhibit "A" - Location Map). The lot, developed in 1979, conforms to the current R-1-AA zoning district building and site regulations. The subject neighborhood is developed with single- family homes. The rear of the subject property currently abuts Seaview Mobile Home Park, which was recently approved for a townhouse development called the Seaview Park Club. The property is located on the north side of NE 15th Place with a depth of approximately 131 feet and a frontage of 75 feet. The subject variance is requested because the previous owners of the house chose not to have a screen enclosure erected when the pool was constructed. By not constructing a screen enclosure around the pool, they followed only the appropriate pool setbacks, which allowed the edge of the water to be at eight (8) feet from the side property line. The deck around the pool extends an additional four (4) feet from the waters edge, leaving four (4) feet to the property line (see Exhibit "B" - Survey). As constructed, these improvements met code at the time of installation and still do today. However, the new owner is desirous of constructing a screen enclosure around the pool due to her allergies associated with insect bites, and has submitted a letter from Dr. Michael Chidester in support of her request (see Exhibit "C"). Screen enclosures, those with screen walls and roof, are required to comply with the minimum building regulations, which in this case is ten (10) feet for a side yard. In order to comply with the code, the screen enclosure would be two (2) feet into the pool. The applicant also advised staff, in a pre-application meeting to discuss the potential variance, that a contractor had been hired to build and install the screen enclosure, and prior to obtaining a permit, the contractor has already pre-fabricated the screen panels (but has not installed them). The applicant has also submitted with the variance application, letters in support of her variance request from the most affected property owner, the one to the east, the property owner on the west side of her property and the property owner across the street (see Exhibit "0"). Page 2 Deasy Variance File No. ZNCV 05-005 ANALYSIS The code states that the zoning code variance cannot be approved unless the board finds the following: a. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures or buildings in the same zoning district. b. That the special conditions and circumstances do not result from the actions of the applicant. c. That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, buildings, or structures in the same zoning district. d. That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the ordinance and would work unnecessary and undue hardship on the applicant. e. That the variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure. f. That the granting of the variance will be in harmony with the general intent and purpose of this chapter [ordinance] and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare. (Exhibit "E" contains the applicant's response to the above criteria.) Staff conducted the analysis focusing primarily on items "a", "b" and "c" above, which require that the request is initiated by special conditions and circumstances that are peculiar to the subject land, structure, or building, which are not the result of the actions of the applicant. Additionally the granting of the variance would not confer on the applicant any special privilege that is denied by the regulations to other properties within the same zoning district. Despite the responses from the applicant, a variance is to be granted on the basis of a hardship, which is established by characteristics other than those created by the landowner, or previous owner(s), by various site improvements or alterations. The emphasis of criteria "a", "b" and "c", in order to justify a hardship, is on natural or unique limitations relative to other properties within the neighborhood that are similarly zoned. The variance should make more equitable the regulations when applied to the various properties within the area. Alternatively stated, in order to meet criterion "c", one should assume that the same structure proposed similarly on an adjacent property could be constructed without a variance. The subject request has been initiated due to the homeowner's desire to screen an existing pool. The previous owner, who had the pool constructed, did not take into consideration when determining the pool's ultimate location, that they could be limiting themselves or future owners in the construction of a screen enclosure. As a result, the former owner has created a situation that now limits the applicant's ability to construct the enclosure within the setback regulations. The same size pool and deck could have been constructed within the back yard, following code regulations, and still allowed room for the screen enclosure, without need for a variance. While Page 3 Deasy Variance File No. ZNCV 05-005 not due to actions of the applicant, those of the previous owner created the hardship, and ultimately result in the failure to meet the special conditions language contained in a - c above. With respect to cntena "dO and "eO, traditionally, variances are intended to prevent the total denial of reasonable use of a piece of property. If this were applicable to the subject case, then denial of the ability to build the pool screen enclosure would be construed as a denial of the reasonable use of the property. Staff does not concur with this position, but rather believes that the existing improvements on the property, which include the home and an unscreened pooi, represent "reasonable use" of a parcel zoned for single-family homes. It should however be noted, the applicant has submitted a letter from a doctor, indicating that the screen enclosure would be beneficial to the applicant relative to her allergies. While not necessarily denying reasonable use of the property, a potential argument could be made for the reasonabie enjoyment of the property and certain improvements thereon. Regarding criteria "f', as noted eadier, the applicant has submitted letters of support from her neighbor to the east, immediately abutting the side yard into which the pool enclosure would encroach. This particular property, 635 NE 15th Place, has a pool which would be adjacent to the applicant's, and the trustees for the property state they "... do not object to a screened in pool cover for the existing pool...". Additionally, letters of support are attached from the property owner to the west of the applicant and a neighbor across the street. Staff recommends that the request for relief from Chapter 2, Zoning, Section 5,C.2, to allow a four (4) foot side setback for a screen enclosure, resulting in a six (6) foot variance to the minimum ten (10) side yard requirement within the R-1-AA zoning district, be denied due to the lack of traditional hardship, and due to the circumstances not being peculiar to the lot itself. CONCLUSIONS/RECOMMENDATION Staff is supportive of residential redevelopment and associated improvements and recognizes that past vanance requests have been reviewed by the City using more than the traditional critena, or interpretations of this criteria, which places greater emphasis on economic potential, minor home improvements, and characteristics of or impact upon surrounding properties. For these reasons, staff offers the following additional information for consideration: 1. The pool was built prior to the applicant's purchase of the property. It is not an instance where the applicant built the maximum size pool knowing it would preclude the installation of a screen enclosure, and is noW requesting to vary the City regulations to accommodate one; and 2. The subject request represents the minimum amount of area required to screen the pool and deck, based upon these existing improvements; and 3. Staff has received no letters of objection, but received only letters of support of the proposed expansion from adjacent property owners. Specifically, a letter from the abutting property owner to the east of the subject property, which would be the most impacted by the proposed screen enclosure. J:ISHRDATAIPlanningISHARED\WP\PROJECTSI 625 NE 15" Place Deasy Variance\ZNCV 05-005lSTAFF REP.doc ... 1 in. = 74.9 feet 625 NE 15th Place - Deasy Variance EXHIBIT A EXHIBIT B N ~ r,<JJT r~~ ~'- ~"" I'li& , ~ 'b . \'. A/E /S77tl PLAC'F (so' ~M/J ~ rt/ ,P/~ f VAS# El< -- 75: 00 . (pJ 7S: () 7 J f.4 ) 10' (/,.) ~~ ~~ ~'" '1 \} f ; ,. ..' .~ ~'" ~ -:. F .: ~ ". ~. ~ .. ...., . . ~ '33. 7~ ' N ,.. fi' w 30.46 . . . .' 'e::CN' . '. .' COIIVC. , . . , . .- '. ..' .. - .. ~ , 1 /. ~3 . . .' 1\1 . \. Yl ..... .... .' ~ \)J POOl- "- \)I 1.7,"8' . ~ ,. .,.. . . . . ' .;:.~~ , ~ \), '\ "- " EAJ'7 7$':00' f?IM) . A/#/T t')r PL..b?' I "- " I" f\\ () ~/,ItJr OF Cf/duI17V/cT F"L) PK ( 1u~#E1i!. 13// ~ 1601 P<;P ~ \. Q~ .~. \ ~(. , ~ ~ ~.~~ ~~~~ "" ~~ 0. ~ ~ ~ .~ ,. ~~ ~ /o./Z ~ b '" ~ >-.. ~ ~ .. ~ ~ ~ ~ Vl ~ "-' \\ 3' S> ~~ 0\ [Z) Ill. " . i~ ~ \~ ~ -t>. - I' ~~ SJ~ c ... 5> \J\ ~ ~ ~ ~~ ~ '\ (i) EXHIBIT "e" I. D. lIIideSl8r, ...., P.A. ~~ ~II! IIIenIaI Medicine 2601 F1llg1a Ave. S~316 Wc:st Palm Beacb, Florida 33407 PhOJle 56J-655-9170 FIIlt S61-6SS-3622 May 16, 2005 Re: MaryAnne Deasey Ms. Deasey has asked me to write in support of her getting a screened in porch secondary to her allergies to insect bites. I feel that this would be of significant benefit for her and any assistance you could render would be appreciated. If you have any questions or concerns p~ease feel free to contact me. TO: CITY OF BOYNTON BEACH PLANNING & ZONING BOYNTON BEACH, FL. 33425 PLEASE BE ADVISED WE, ADRIAN H. WINCHELL, TRUSTEE OF THE ADRIAN H. WINCHELL REVOCABLE LIVING TRUST AND HELEN J. WINCHELL, TRUSTEE OF THE HELEN J. WINCHELL REVOCABLE LIVING TRUST, LOCATED AT 635 N.E. 15TH PL. LOT # 16 OF YACHTMANS COVE, BOYNTON BEACH, FL. HEREBY DO NOT OBJECT TO A SCREENED IN POOL COVER FOR THE EXISTING POOL, LOCATED AT 625 N.E.15TH PL. LOT # 17 OF YACHTMANS COVE, BOYNTON BEACH, FL. ADRIAN H. WINCHELL. TRUSTEE ~ 0I~4~ HELEN J~~~;LL, TRUSTEE DATED 5/16/05 Page 1 ""'''''~~'_',~''_''''_)''I'''''_~_''''''--''''''''''''''''''''''.'''~'''''''"''._.'e.'_'," EXHIBIT "0" EXHIBIT 0 May 17,2005 Code Commissioners City of Boynton Beach, Florida fl OTIC E As the YJesfem.adjacenUancbowner.fa the property ~:at 625. NE 15th Place. in Boynton Beach-r owned by John-and: Maryanne ~ ! hereby declare that I have no objection to the erection of a screened patio enclosure around the Duncans' existing swllluuiuQ poot-r despite the fact that the enclosure's measur~ts do not conform precisely to the city's regulations relating to the allowable distance from their property's eastern bounds. y Iifle.. fj~(~ -615 NE 15th Place Boynton Beach, Florida EXHIBIT 0 RICHARD F. HARTWIG 620 NE 15TH PL BOYNTON BEACH, FL 33435 April 17,2005 To Whom It May Concern: I have no objection to my neighbors, John and Maryanne Duncan, at 625 NE 15th PL. building a screen enclosure over their pool. Sincerely, ~~/d~ Richard F. Hardwig EXHIBIT E Addendum to Application for Variance for John Duncan and Maryanne Deasy-Duncan. Page 2. MAY I 8 L005 Question 4 A. That special conditions and circumstan~es ~XiSL~lliiii~ to the land, structure or building involved and which are not applicable to other lands, structures or buildings in the same zoning district; Special conditions exist in that this is where the pool had been previously been permitted to be built. The pool construction and the home construction were completed at the same time (circa 1979). The unique conditions for variance would not exist if the pool construction were different. B. That the special conditions and circumstances do not result from the actions of the applicant; These conditions came into existence during the construction of the residence around 1979. Maryanne and John Duncan purchased the property in 2004 and Maryanne since 1996. c. That granting the variance requested will not confer on the applicant any special privilege that is denied by this Ordinance to other lands, buildings or structures in the same zoning district; This is not a special privilege as there are many screened pools and porches within the area. The screening provides comfort and enjoyment for all the homes having the structure from the insects that are abundant in the same area. D. That literal interpretation of the provisions ofthis chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the Ordinance and would work unnecessary and undue hardship on the applicant; The screen enclosure surrounding the pool will block most biting insects that the owner, Maryanne, is allergic to. (See letter from Dr, MD Chidester) This will allow her the peaceful and healthful enjoyment of her home that many other homeowners have within the zoning district. E. That the variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure; The screen structure will be permanently attached to the existing improvements (refer to Aerial Photo - teal highlighting). No additional property will be used. EXHIBIT B F. That the granting of the variance will be in harmony with the general intent and purpose of this chapter and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare; The structure will be harmonious with the intent and purpose of the chapter. Screen Porches and Pool structures generally enhance the value of the property as evidenced by the sheer number of homes having them. When reviewing real estate sales advertisements, one will notice the attention to homes having such structures. G. Variances to minimum lot area or lot frontage requirements, that property is not available from adjacent properties in order to meet these requirements, or that the acquisition of such property would cause the adjacent property or structures to become nonconforming. Applicant shall provide an affidavit with the application for variance stating that the above mentioned conditions exist with respect to the acquisition of additional property. Our current neighbor has no interest in selling any of his property. If he were to sell us sufficient property to bring our property into compliance, his house and pool would no longer be in conformance with the current code. EXHIBIT "F" Conditions of Approval Project name: 625 NE 15th Place - Deasy Variance File number: ZNCV 05-005 Reference: DEPARTMENTS INCLUDE REJECT PUBLIC WORKS- General Comments: None X PUBLIC WORKS- Traffic Comments: None X UTILITIES Comments: None X FIRE Comments: None X POLICE Comments: None X ENGINEERING DIVISION Comments: None X BUILDING DIVISION Comments: None X PARKS AND RECREATION Comments: None X FORESTER/ENVIRONMENTALIST Comments: None X PLANNING AND ZONING Comments: None X ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY BOARD CONDITIONS Conditions of Approval 2 DEPARTMENTS INCLUDE REJ~ Comments: 1. None X ADDITIONAL CITY COMMISSION CONDITIONS Comments: 1. To be determined. S:\Planning\SHARED\WP\PROJECTS\625 NE 15th Place - Deasy\COA.doc S:\Planning\Ptanning TempJates\Condition of Approval 2 page -P&D ORA 2003 form.doc DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: 625 NE 15th Place-Deasy APPLICANT'S AGENT: Maryanne Deasy APPLICANT'S ADDRESS: 625 NE 15th Place Boynton Beach, FL 33435 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: September 6,2005 TYPE OF RELIEF SOUGHT: Relief from Chapter 2, Zoning Section 5.C.2, requiring a ten (10) foot side yard setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a screen enclosure in a R-1-AA Single-family Residential zoning district. LOCATION OF PROPERTY: 625 NE 15th Place DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO. X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida appearing on the Consent Agenda on the date above. The City Commission hereby adopts the findings and recommendation of the Community Redevelopment Agency Board, which Board found as follows: OR THIS MATTER came on to be heard before the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the relief sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: 1. Application for the relief sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. 2. The Applicant HAS HAS NOT established by substantial competent evidence a basis for the relief requested. 3. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "C" with notation "Included". 4. The Applicant's application for relief is hereby _ GRANTED subject to the conditions referenced in paragraph 3 hereof. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other DATED: City Clerk - ......... __~"...,~n.n^ 1~""'TC'\a')~ "U= 1l;th DI:::ar-,:._ np:::t~v\no_doc Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 homes in the Cypress Creek community and was in the process of building and rebuilding in Atlantis Country Club. They believe that this house would be an asset to the community. Chair Heavilin opened the floor to the public. Mike Mrotek, 2624 Lake Drive North, Boynton Beach, speaking on behalf of the Lakeside Gardens residents, expressed opposition to the granting of this variance because there was a 30% difference between the Code and the request. Chair Heavilin closed the floor to the public since no one else came forward to speak. Jeff Tomberg stated that the variance should be granted because all of the legal criteria necessary to allow the variance had been met. The house would comply with all setback and other requirements. Chair Heavilin voiced the opinion that the City had a number of lots in the City that were platted many years ago and did not conform to the current Code. She thought the board should continue to address the 50-foot lot frontage requests as special cases. The board supported her view. Motion Mr. DeMarco moved to approve the request (ZNCV 05-003) for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a seventy-five (75) foot minimum lot frontage to allow a 22-foot variance, resulting in a fifty-three (53) foot minimum lot frontage within the R-l-M Single-Family Residential zoning district. Vice Chair Tillman seconded the motion that passed 5-0. 3. Project: 625 NE 15th Place (Deasy Variance) (ZNCV OS 05-005) Maryanne and John Duncan Maryanne Deasy 625 NE 15th Place Request for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a ten (10) foot side yard setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a screen enclosure within the R-l-M Single-Family Residential zoning district. Agent: Owner: Location: Description: Ed Breese, Principal Planner, stated that the request had been initiated due to the homeowner's desire to screen an existing pool. The former owner did not take the location into account and as a result, created a situation that now limits the applicant's ability to construct the enclosure within the setback regulations. Based on the traditional hardship criteria, staff believed that the variance request should be denied. However, the board has previously granted variances for other than hardship criteria, and may want to consider that: 1) This was not a case where the applicant built the maximum size pool knowing it would preclude the installation of a screen enclosure and was now requesting to vary the City regulations to accommodate one; 2) The subject request represents the minimum amount of area required to screen the pool and deck, based upon the existing improvements; and 3) Staff had not 5 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 received any letters of objection and had received many letters of support from adjacent property owners. Maryanne Deasy, 625 N.E. 15th Place, Boynton Beach, stated that they wanted a screen enclosure for two reasons: 1) all the debris that blew into their pool after the hurricanes, and 2) her allergies to insect bites. Mr. Fenton inquired about the height of the screen enclosure, and Ms. Deasy responded that it would not be higher than the one-story house. Mr. DeMarco inquired whether other homeowners in their neighborhood had screen enclosures on their pools, and Ms. Deasy responded that of the eight or so neighbors with pools, four homes had screened enclosures. Chair Heavilin asked whether affixing the support posts to the existing concrete would be a violation. Mr. Breese responded that the Building Department would require special anchors. Chair Heavilin opened the floor for the public and closed it when no one came forward. Marie Horenburger felt that this was a self-imposed hardship since they were aware of the situation when they purchased the property. Motion Mr. DeMarco moved to approve the request (ZNCV 05-005) for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a ten (10) foot side yard setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a screen enclosure within the R-1-M Single-Family Residential zoning district. Vice Chair Tillman seconded the motion that passed 4-1, Ms. Horenburger dissenting. B. Land Use Amendment/Rezoning 1. Project: Heritage Club at Boynton Beach (LUAR 05- 005) Michael Weiner, Esquire, Weiner & Aronson, P.A. Thirty Six Hundred Holdings, LLC Northwest corner of the intersection of Federal Highway and Gulfstream Boulevard Request to amend the Comprehensive Plan Future Land Use Map from Local Retail Commercial to Special High Density Residential; and Agent: Owner: Location: Description: Request to rezone from C-3 Community Commercial to PUD Planned Unit Development Proposed Use: Mixed use development containing 19,500 sq. ft. of commercial development (office, retail, restaurant) and 166 multi-family residential units 6 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VI.-CONSENT AGENDA ITEM F Requested city Commission Date Final Form Must be Turned Requested City Commission M~Dates in to City Clerk's Office Meetin2 Dates [81 August 2, 2005 July 18, 2005 (N00lL) 0 October 5, 2005 0 August 16,2005 August I, 2005 (Noon) 0 October 18, 2005 0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005 Date Final Form Must be Turned m to City Clerk's Office September 19,2005 (Noon) October 3, 2005 (Noon) October 17,2005 (Noon) October 31,2005 (Noon)' --..... \ -.- -;1 0 Administrative 0 Development Plans ~ 0 ,..) NATURE OF Consent Agenda New Business AGENDA ITEM 0 0 -"-J Public Hearing Legal , . '. 0 Bids 0 Unfinished Business h) 0 Announcement 0 Presentation (::-::) (.,;.j 0 City Manager's Report '~:' --;, ') "~ -~ - ';::> =:j~~ r)~-r,-> ('-'0 ::c RECOMMENDATION: Approve change Order # 1 for the Ubrary Expansion Project in the amount of $189,963 to cover Contractor's General Conditions costs caused by the delayed start of the project. EXPLANA nON; This negotiated amount already has been paid to the contractor via a Construction Change Directive and needs to be added to the General Conditions Contract Sum. The original city contract anticipated a start date of October 10, 2004, but the project was delayed about seven months due to a variety of issues out of the contractor's control. The major delays were caused by the Civil Engineer who closed their local office in November and did not respond to utility plan revision requests either timely or completely. The Architect ultimately had to bring in a different Engineer and start over. At that point, our city started the plan review process all over again. (See attached timeline and correspondence.) PROGRAM IMPACT: The Notice to Proceed was issued on May 3, all pennits are now in place, and the project has commenced. FISCAL IMPACT: Adds $189,963 to the Contract Sum. Funds to come from the general CIP account. ALTERNATIVES: Halt the project. IKF~d#l4J~ Librmy Department Name Resources S:\BlJU.ETIN\FORMS\AGENDA ITEM REQUEST FORM-DOC Library Construction Project Timeline concerning Contractor 2004: . July 27 - pre-bid meeting . Aug 13 - Hurricane Charlie . Aug 24 - bid opening . Sept 5 - Hurricane Frances . Sept 7 - Commission tables contract award . Sept 13 - Hurricane Ivan . Sept 21 _ Commission awards contract to Sessoms Constrnction $5,727,485. . Sept 25 - Hurricane Jeanne . Oct 10 - Purchase Order 050512 to Sessoms . Oct 19 - Plans Received by Bldg Dept . Oct 29 - Comments received back from Bldg Dept . Nov 5 _ Comments addressed and plans (excluding civil) ready for re-submittal o Architects learned that local branch of civil engineering firm was shut down, local staff was let go, and all items relating to project was relocated to Miami. . Nov 19 - Payment of $275,649.30 to Sessoms (bond, insurance, permits) . Nov 24 - Sessoms agrees to 60 day extension (to Jan 22, 2(05) 2005: . Ian 21 - Traffic Impact Statement completed and submitted . Jan 24 - Project Meeting (see notes 012405) . Jan 24 _ Sessoms agrees to 30 day extension to Feb 25 "with the understanding cost escalation is a factor and will be evaluated at a later time." . Feb 14 _ County Engineer sends Letter of Determination that "the proposed expansion project meets the Traffic Performance Standards of PBe." . Feb 16 - Project Meeting (see notes 021605) . Feb 23 - Project Meeting (see notes 022305) . Feb 25 _ Sessoms agrees to another extension until March 1 "with the understanding additional verifiable costs will be paid." . Mar 1 _ Sessoms agrees to another extension to April 1 in a letter which includes the following conditions: o "We will be given a change order to cover subcontractor and material escalated costs. o Our overhead for this project as a result of remaining idle will be paid. o Anticipated profits for this period will be paid Our profit on this project is $220,000. This translates to $481 per day over a 457 day project." (Lee Sessoms verbally advised that this letter was copied to City Manager and other relevant city depts.) . Mar 4 - Project Meeting (see notes 030405) . Mar 9 _ Meeting to address project delays and cost increases with Architects, Sessoms and City Pr9ject Manager includes Chief Bingham, Jeff Livergood, Mary Munro, and Carol Doppler. . Mar 10 _ Sessoms sends letter with a preliminary breakdown of cost increases as they relate to the delay encountered on the project. He copies City Manager, Janet Prainito, and James Cherof. . Mar 10 _ Architects deliver revised signed & sealed constrnction documents including review only copy of civil engineering sheets for city review. These are rejected again by city engineering review staff. . Mar 28 _ Architect continues to have response issues from their Civil Engineer. . Mar 30 _ Sessoms agrees to another extension to May 4 with statement: "Agreed under the condition costs and accelerated costs are paid by the City through the date of NTP" . . April 1 _ Architect emails recommendation re: contractor's requested increase. . April 28 _ Architect (on behalf of city) finishes negotiations with Contractor re: request for cost consideration due to time delay in issuance ofNTP. . April 29 _ Agreement reached for a total increase of $189,963 to be added to contract for a total revised contract amount of $5,917,488. . May 3 - City issues Notice to Proceed. . May 11 _ Sessoms picks up Clearing, Grubbing and Tree Removal Permit and starts clearing . June 9 - Constroction Sub-Contractors Mtg . June 15 - Full Permit ready . July 12 - Sessoms picks up full permit Library Memorandum TO: VIA: FROM: DATE: SUBJ: Kurt Bressner, City Manager Wilfred Hawkins, Ass't City Manager Virginia K Farace, Library Director April 29, 2005 Library Expansion: Contractor Additional General Conditions Attached are documents reflecting the outcome of negotiations between the Architect, Sam Ferreri of Schenkel Shultz, and the Contractor, Lee Sessoms of Sessoms Construction, concerning the contractors request for cost consideration due to the time delay in issuance of a Notice to Proceed. Agreement was reached and the recommendation is contained in the Architect's letter of April 28, 2005. (Attachment #1) The monetary adjustment is for an additional $185,000 for General Conditions for services up through May 3,2005; and an increase of $4,963 for the increase in the Builder's Risk Policy due to the time extension on the policy. The total is $189,963. In a meeting this morning, it was further agreed as to how to implement the monetary adjustment. As recommended by the Architect in his letter of April 29, 2005, (Attachment #2), a new line item called "Mobilization" is created in the contractor's Schedule of Values. Once the Notice to Proceed is issued, the contractor can submit a bill for Mobilization costs in the amount of $211,000 minus retention for a payment of $189,963. When Change Order No 1 for that same amount ($189,963) is signed and approved, it will be used for General Conditions and be added to the contract for a total revised contract amount of$5,917,448. We are all proceeding on the understanding that the Utilities civil drawings will be signed, sealed and submitted Monday morning. With your approval to the process outlined here, we intend to issue a Notice to Proceed on Tuesday, May 3, and to submit Sessoms' request for Mobilization costs. Also, Change Order No 1 will be initiated. Attachments Copy: Sam Ferreri, SchenkelShultz Architects Lee Sessoms, Sessoms Construction I . . . :\ ..,., . '. . '.. ... .:.- .. . . " : SCHENKELSHULTZ o 0 " ARC HIT E C T U R to ::: ::; -' /\,/1\(1111 f April 28. 2005 Mrs. Virginia Farace, Library Director City of Boynton Beach P.O. Box310 Boynton Beach, FL 33425-0310 RE: City of BO)'llton Beach City Library Library Expansion I Remodel Contractor Additional General Conditions Negotiations Dear Virginia, As requested by the City of Boynton Beach. we SCHENKELSHl.:rI.TZ engaged in negotiations ...vi1h Sessoros Construction to discussion and C01IlC to a mutual agreement on cost in reference to 1he additional General Conditions and Builder's Risk for this project due to the time delay in issuance of the Notiee to Proceed After several weeks of discussions between SCHENKELSHUL TZ and Sessoms Constructions, the following terms were agreed upon: Iten1.S agreed to: 1. 5185,000.00 fC'r General Conditions for services up to May 3,2005. 2. Understanding that this cost doeS not include the additional cost in association with material cost increase and will be reviewed as subcontractors are signed onto the project. SCH.E~SHULTZ is committed to working on Value Engineering items to minimize additional cost. 3. $4,963.00 for L~e increase in the Builder's Risk policy due to the time extension of this policy. Item to be determined: 1. At this present time, SCHENKELSHUL TZ and Sessoms ConstrUction are unable to come to mutual consent on the teuns of the daily rate which would be due after May 3, 2005 if the Notice to Proceed is not issued by May 3, 2005. The current daily rate in whieh SCHENKELSHULTZ recommends is S898.00 ($185,000.00 (negotiated GC) /206 days). The current daily n:.ted request~d by Sessom5 Consntetion is 51,111.00 (GC+ anticipated profit per day). SCHENKELSHl)L TZ is presenting this recommendatiol1, a; outlined above, to the City of Boynton Beach for review and. approval. Please note that per our discussions with Sessoms Construction, they stated that they are not in the position t:> mobilize until they can bill and be paid for the additional cost mentioned above. We recommend that we re-evaluate the general cond:.tions in the schedule of values to allow for early payment ifnecessary. ~:;'. rreri, AlA Cc: Lee Sessoms/Sessoms Construction Altcrraon PlrillipsfSCHENKELSHUL TZ 03208021 owner outgoing G:\0320000'D320li02 Boynton Be;och library\DP\Le1ld.:\ll120502 F."'c, 5UlYCY ."C~ ::.g25o~.doc 1.100Nonh CQn~rC':'-~ A\tcr.u~. \l."t",;1 ..'....:l Bc:;.:~. F:0M~b 33-1u9 .;)1;;]:1:": )c;>6!~-~"":Y ~ F~.x j61-h()7-.':-~IO . \\'\...\..._:~,-'hc,._I,.:,::-.:--~:!: ;:_''-1 . :\I'chi{~.ur,\1 U~:ell""': f'~'.-:. :\....l.-CiJo~,IY-.13--; . ' ~.- J U4/~a/~UUO li:J4 ~A~ oblb~/o~lU .sCHeNKeL .sHLILl L. SESSO~S CONSTRUCTIO~ ...... 14]002/007 SCliE\1illLSHULTZ -Q} 001 0~/Z7/05 ~~ 15:54 FAX 9544~667~9 .~ ~ SQSSOmS ~~. .. ~ONSTROCTION .' COMPANY.. INC. . ~~ - . ....: April 27:2005 Via faX/mail (561,697.52101 Mr. Sam Ferreri, PriQClpat . . SCH'ENKElSHUL lZ Aj'{CHITECIU.RE . 1300 North Congress Avenue West Palm Seach. Fl33409 . Re: #379 - BOYNTON .B~CH CITY LIBRARY BId Number: #(l17-2610-041CJD Dear Sarno . . Per our :conv~atlon t1iis 'morning, I. am writing' you to confinn our CO~tion the morning 'of' . 04122/05. . I was in receipt of your reiponse to my clalm for my daily. costs on the subject project. In that ' response, yo~ stat~ that you felt we ~hould .be paid. 15% of our actual ~ts. as our total remedy for overhead and ,profit This was diaeussed at OUr Wednesday' project meeting, and I explained .that '. there was no way that those numbers would work for OUr firm. . We sUbmitted oUr bid for this project almost eight months agp; and by no 'fault of our own, we-are 'Still awaiting a Notice to proceed (NTP). There is no language in the contract documents that address this ul1usual condition. . Nearly six million .doflari of my com~ny's bonding has been tied lJp in this. project during this tIme, preventing' my exganization to pursue profitabte work. Throughout. this time my General Superintendent and I have accommodated SCHENK!LSHUl TZ and the owners with weekly meetings to discuss three issl:les: -The perm it '-our claim --Po~sible cost reductiona with Value Engineering (which, as we have disCUssed, witlllkely be a false economy), . A lot of time and effort has been extended on this project, and we have nothin'g to show for it but a sevQorely-impac::ted cash flow and an increasingly disinterested sub base that originally bid the p~e~ . The 15% tha(you propoSed is a ludicrous sum for the time and effort we have put forth to this point. I nave sent you a revIsed spreadsheet wIth adjusted days on Friday and have included them with this correspondence.' . . Bottom' line, In order to mak~ this job work. our.company can accept no less than $165,000.00 fOr our daily costs. By acquiescing to this degree, we are s~vSrely affecting our anticipate.d bottom line :,ind are essentially donaUng money to the project when we have' no obligation to do so; Clear in mind that this figure dQe$ not address the followi~ Issues: -Any delays after 5/3/05 which will rel~te to an adctitional daily cost of S'1,111.oo 7485 Davie Road Extension . Hollywood; FL 33024 Br?war~. (954) 431-7900 · Fa" (954) 436:.6789 .CO CB01l34 ::-=- - 8=\379 - aaynlon Beach Ubrary\Cru:tEscalalion\0427'Q5:-185 olfer B lil rro.L~~ ---- ._~ SESSOMS CONSTRUCTIO~ ........ SCHENKELSHULTZ'tCJ v v 'ti! '0 '02 V" f _ V ... V v OJ ..L... OJ OJ .l"::~ OJ V..L. v ..... I OJ"'..L. v o.J\..fJ..l.L.U''''~~~ ....J.J....'.&......LI-J. ~ 04/27/05 WED ~6:54 FAX9S~4366789 SCHENKELSHUL TZ ARCHITECTURE April 27. 200~ . Page Two . ..subcontractor Price escalations'. . . . -Increase cost of BUilder's Risk'lnsurance ,($4,963;00 +15%; $5,707.00) Weare told that we will have B NTP on 0510'3/05. which I find unlikely pasedon..the J:tislOry of ,this proje(!t to date. In the event we receiVe oUr NTP in'the Mar future, be advised that we will not proceed wlth any work until our daily casts are agreed to and e device is in place ,that will enable uS to, bill and ~ paid for this immediately. . under theoircumslances, we have nO altemative put to' eval,uate the possibility' of terminating our contraotual obiigations as we have been hanging by a thread waiting fot this project to commence.' In the event .that we' are forced into that sllliation. we will still- take any 'measure n~ry to protect our interests, and the offer of a reduced claim of- $185,000.00 will be rescinded a'ld reevaluated. It 'is our , Intent to wOrk through this process and complete the: project!o a timely manner. In oide~ to pr~ With the work. we...vill need the fol1r;JVi1lng: . . .' , -Contract Amendment for S,85jOOO.OO plus $5.707.00 for incraased' Builder's ,Risk to be billed,and paid upon issuance of NTP , . , " . .CommitIllent that subcotitractor's' cost escalation will be paid, " '. -An increase to ourdaHy cost foreach day pa~t 05f03J05 at an amount of $1,11,1 ~OO . . In addition. IlWould' help if we had .3 reasonable no\mcation of precisely wh~r. cOnstruction will s~rt In orde,r to mobilize ourworkfotoe. Again, I stress that we are doing our b~t to work with everyone Involved In this project If you have any questions regar:d1ng this letter, do not hesita~a t6-contact me. Very truly yours. ' Cc: Fletcher L Sessoms, SCCI Fred Jones, seel , Bcib Scott: .secl . Virginia Farace, library Director Attachments :t.S/mb 04/Z~/Z005 17:J5 ~AA oblb~IOZlU ~CtlbN~bL ~tlUL~ --.-- -- SESSOMS CONSTRUCTION If!jUU4/UUI H" SCEENKELSHULTZ @ OO:J 04/27/05 WED 15:54 FAX 9544366789 . Sessoms .E CONSTRUCTION COMPANY, INC. . --: ==:r.:..... - ~ #379 --BOYNTON BEACH CITY LIBRARY Bid Number: #017-261 Q-04/CJD '-:- :.. ~ :.: 7485 D'avie Road Extension · HotJywood F'L 33024 Broward (954) 431.7900 · Fax (954) 436-6789 CG CBO Jl34 Increase in Builder's Risk Insurance Quote €l9/07/2004 Quote 0412512005 Total Difference 15% OH & P Total $ .38,642.00 43.604.00 $ 4,963.00 7~4.00 $ 5.707.0Q G:\379 - Boynton Bead'! Library\C01;t EscaIlIti:lfl\8ul1der's RIsk . B 04127/05 04/2~/2005 17:36 FAX 5616975210 SCHENI\EL SHliLTZ _ SESSOMS CONSTRUCTION I4J 005/007 -HO> SCIIENKELSID.JLTZ .. . QJ. O~..4 ------ - 04/27/05 WED 15:55 PAX 95443667S9 7". ~ Si :t: ~ '.. :.:> .~ L ~ 'i ~ '-" ::i i ... i ~ :?: T.: ~ ~" ~ =.::: :;.,... ,.., :-!:: .ii. 'i: i !P ~ !~~ ;1 ! ;y.. ... 1 ., - ;~ ;.1 ~ :' ,~ iI= ~ ~.:i ~ "5 " ~ ;iii - -.;:l: # . !'I' ~ "" "'" i ~~ ~. ~~ ==. i ,,, ~ ~ 4 & ~ '"" ~ ~ ~ ~ "'" ~ ~.J Collinsworth. Alter, fowler, Dowling @ French Group, Inc. Insurance and Bonds 5979 N.W. 1~1 Stttll!t · SI1\t1: 10.5 - ~o. BQlt 9315 . MiNl\i Lal<es. Auridll33014 . We (305) 822-7800. Browatd (954) 463-S601 Mkt fax ~05} 658429.4 · CIl. F.D: ~O5) S6'2~443 September 07, 2004 Sessoms Constl'UCtion Co., Inc.. 7485 Davie Road Exwnsion Hollywood,FL 33024 R.e~ Boyton Bed Libraxy Dear Flet.l::her: FolloWing is Builder's Ri..qk quote for the above:, please note we can issue policy upon request, however, quote expires 10/1/04. Special Fonn. excluding ilood and. quake, Limit $1,200,000 Renovation. $4,300,000 Addition, S20,OOO Transit, $20,000 Temporary. Storegc. No coV'eragB fro e)cistins building. $5,000 Deductible ADIt, except for Wind, 2% ofval~ at risk at time oflogs. 550,000 mini.o:1llJn per occurrence. Term premium 53'8,6.4.2 Should you have any question or ~eed to bind CO"l/el'age, please contact cut office. s~. . Raysa~k~ / A<::count Manag;-.... 07 " TOTRL P.01 09/07/04 TUB 13:a7 [TX/HI NO 5741] V"t/'O/~VVv J..I...JV CI1A ')OJ..Ui1lv~J..V ,:J\';l1L':"l\.L~nLILJ.~ 04/21/05 WED 16:55 F~ 9544366189 .. . r Callinsworth, Alter, Fowler, Dowling'(Q french Group, Inc. Insurance and Bonds . 5979 N.W. 151 Satt't · Suiu: 105 'It Mi;zmi. I.:akes, Florida 33014 D.1de (305)' 8~7S00 · Broward (954) ~601 · ~ (305) 362-2#3 COVER SHEET Commercial Insurance Department SESSOMS CONSTRUCTION (' 'l0VVOfUVI -+H SCBBNKELSHULTZ ~oos 1I\J.7rJJ r. III --- ---- DATE: ~ f:Z:=5",A .5 / ) FAX SENT TO {COMPANY NAME) : LLI~. . ~~4d~"c-7~ FAX SENTTO FAX NUMBER ~ ATTENTlONOF .: -~ FAX SENT BY (NAME) := ~ TOTAL PAGES. (INCLUDING COVER SHEET); /. ~ - ~,~ RE: ~J!A.~~~ .. . .. 8/ZJ ~ C.OMMENTS: - :On:f1I'Ill.U1g our quotBtion. \rch Spcc;ialty. 3uil~ Risk.. \Il risk exclndiog flood and' 'lUflk;e. \rcb. Builders Risk form. ~imit: S 1,200.000 rcncrvatlon. S4.300~OQO addition. 43 C, 04 8 ~ ferrn Pretnlum: $ 41,425 plus tI1X,. plusS 3S,plus $4. ::::- .... - ;>cd: 5,000 AOP, 3% values at risk at time ofloss fot wind subject to 50,000 min ~cr occ~. ;20,,000- TiMsit ;20,OOO'tempo~ storage. ~dafl;= 5/3/04 Term. 16 months- !Xcludes~ terrorism,tnol4,eybertctrOrisnL - I THE "IIFORMATlON c~ED n~ THJG ~/lX IS lHTEHoal oNLY fOR TliE u~ Of 1liE IHDMDUAl.{S) KO..UED J\6C\IE.. IFlHE Me-AOER IS ~T 1I4E lNTafOEO REaPlEM1'(Of:C ~"'GENT RaPQNSIIIlE TO DE1.IVE~ IT TO -mE IN't'ENOECI REClP1Sli} yOU ARE ~'( AtMSEO THl.T ~ C~a.aHo\nOH. DESlRUCTION OR COPT1HG"OF THfS CCwawNlCAitON IS PROHIBITEO./F yoU H4\iE REOElVED Ms COIACUNfCATlCN IN ERROR. PLEASE B~ ICSNO El'fcUQtf'to NOTIfY us IWEbfATaY BY TEI.EP~AND F{eT\.IRN T1iE ORIGIJIbU. LCEsQlGE 1'0 us I!Y W.1l Kr l10lE ABQVG -.Dt)RE~. .'" w_. . ....... ~""... I<JC;"Cft"; all Clall;~~ ~ ':a~~ ....&1' .a~ ,""uusER 04/2S/05 MO~ 15:23 [TX/RX NO 9D55) SCHhNl\hL ~ULTZ_ SESSOMS CONSTRUCTION .H-t @007/007 SCBENKBLSHULTZ ~ 006 V~/~O/LUU~ ~/:Jli ~AA ~li~liYlaZ~U 04/.21/05 WED 15:55 FAX 95~4366769 Boynton Beach City Library Sessoms Construction Company, Ine. Cost per Day Emplovee Rate D8r l)iJV Total Rate per Dav Bob Scott, General SUperintendent (33%) $320.00 $105.46 Scott Wells. Suoerintendent $272.00 .. ~ -" Lee Sessoms. Project Manager (50%) _ $344.00 $171.75 Trailet $13.42 Anticipated Profit $220.000 J 457 days = $481.40 per day $481.40 General Llabilitv InSJJt'Mce $150.68 Partial Rata Per Da~ $922.72 Delav From Ten Davs From CDntract 206 Total cost Less Scott Wells $190.079.33 $cott Wells as adiusted below" I $15171.00 Less Trailer Costs to 21ltlOS ($1.624.00 Total Costs from 10/10/04 Throuah 411/05 $203.626.33 Total Costs from 4/1/05 Throu~h 5/3/05133 I: ays) $36,663.00 Grand Total 5240,289.33 'l..11.- -\ .Scott Wells was working on this project from 1/13/05 thru 2/17/05 (36 days) at flJlI rate I $272 x 36 days = $ 9,97!;1 ! He work~d from 2/17/05 to 4/1105 (44 days) on another project in the capacity ! of a carpenter at his fulf rate of pay. Daduc.tipg carpenter wagos from his rate \ leaves premium we are paying to be billed to City of BDynton Beach 1$272 -.$15"4 = $118 1$118 x44 days ~ $ 5.192 I 1$ 9.979 "" $ 5,192 = $15,171 I Total Rate per Day After 4/1/05 will M $1.111. I l,ncrS$e coat in Builder's Risk Insurance. $5,'107.00 riot included in above .04/29/2005 15:21 FAX 5616975210 SCHEXKEL SHULTZ . 0011005 . . . '. " . . . .. .. . . . . '.' '. ,',. . SCHENKELSHULTZ LI ,= ^RC4ITECTUR~ ::lOD AilAe,flivnftttT "# ) April 29, 2005 Mrs. Virginia Farace, Library Director City of BoyrtTon Beach P.O. Box 310 Boynton Beach. FL 33425-0310 RE: City of Boyuton Beach City library Library Expansion I Remodel Schedule of Values Revision for mobilization Dear Virginia, As discussed at Today's meeting, it is SCHENKELSHULTZ recommendation that $211,000.00 be shifted to a new line called "Mobilization". The current "General Conditions" line item will show as SO.OO on the finalized pay application. Once Change Order Ko. 1 is signed and approved by all parties, in the amount of $189,%3.00, it wiH be used for the General Conditions for this project. The transfer to the "Mobilization" line item will allow Sessoms Consttuction to be able to bill for the cost associated wirh rhe delay of starting this project as well as lost general conditions and profit Attached is a copy of how the final pay application should look. The new contract amount will add $189,963.00 to the present value of$5,727,485.oo for a total revised COntract amount of $5,917,448.00. Please feel free to call us if you have any questions. Sincerely, SCHENEKELSHUL 1Z ~ Al Phillips Anachment Cc: Lee Sessoms/Sessoms Construction Sam Ferreri, AIAlSCHENKELSHUL TZ 03208021 owner outgoing G;\()320000\D320ii02 Boynton Beach Iibrary\DPIL.~020S02 FaJ1Ite GC nc:~ti.tionOl 042.0S.doe 1300 J'\~r.~ : '~-1'":..::re....... '''_~t',:L.:C. \\\'$[ Ptlm Beach. Flor~cia 33;.09 J-'h~l:l~ 3ti:.tl97-3:l51 . F:=.x ~til-S::--.;=_0 .. -v....... "dl~Tl=h.h.:;I;.o.L:'r:T .. .'\rL-Lilc>':~u,,:::,j l.,,-'CI'\C 1'(,:..'. --\.--\-COOO93", Oi/29/2005 15:21 FAX 56169i5210 SCHENKEL SHULTZ SESSOMS CONSTRUCTION @OO2l005 -+-H SCHENKEL SHULTZ ~ 001 04/29/05 FRI 14~55 FAX 9544386789 . Sessoms _ CONSTRUCTION COMPANY, INC. . 0- " - CEIVED APR 2 9 Z005 IBY:~ o~ 7485 Davie Road Ex.tension · Hollywood FL 33024 Broward (954) 431-7900 · Fax (954) 436-6789 CG CBOl134 ~ J LETTER OF TRANSMITTAL Pate: Job NO.~ Re: 04129/05 379- Boynton Beach City Ubrary 208 South Seacrest Boulevard Boynton Beach, FL 33435 Bid Number: #Q17-261D-04ICJD To: SCHENKELSHUL 12 ARCHITECTURE 1300 North Congress Avenue West Palm Beach, FL 334U9 Attn.: Mr. Sam Ferreri I Mrs. Ch:>li Aronson GENTLEMEN: We are sending ~ Attached 0 Under separate copy via Fax the following Items: o COpy of letter from ; . . . . . , . . . . . . . . . . - - - - _ . . . . . 0 . . . . 0 . Oated COPIES NUMBER DESCRIPTION I 1 Pencil Application and Certificate for Payment No. 02 I .. Mobilization line Item $ from General Conditions ~;SfJuctural Concrete. Amount is a gross I figure of the $185.000.00 plus $4,963 (Builders Risk increase). .. I I I i THESE ARE TRANSMmEP AS CHECKED BELOW: ~ For Approval D Checked D For Final Approval 0 Checked as Noted 0 For Your Use 0 Disapproved 0 For Your Information 0 As Requested Cl ror Your Attention cc: Virginia Fa.race. Library Director o Submit_Copies for DIstribution o Return_Corrected Copl€s o Revise & Resubmit_Copies for Approval by AlE o Lee Sessoms, Vice President mb G:\Requ;~~"n"I3T9\1ra~mltull - 02 PellCU o II) uJ Cl ~ 0 ~ :; ~g := ~O LL ~::::t:~ o .- 0: ~ ~ ~ ~~~O o ., 0"'; U u: C> -< a. c: ... ~OOODO o ~ -= ~ u .;, 'Q' ZV<J('O ~ ~ ~ ~ ~ ~ ~ Q " .. " ... o ., z ..;:: s:'!: ci (3 .. :::> .. 0 ~ g g::2~l'. ..=. < - s;: c...: ~ ==~~ E ~:.: ~ 0 ~ tfZg~ -- < ~::::. N co r- o ~ S ::E B o Q < <: ~ <: 0::: "a m .. :; ~ >~~ I- 0 v <:ial~ :!:'l5.J o II> u.. 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It) Oll) t'olco om aitti Oil') ...... '" cOO oqo cicci ~ ~ o cI1 ll. r:t a: ...II- UJ ~z:. (J) :z o/SW~ o ZtnC!>::5w S2 a: tl)ffica:Z:z~~ l- L. ~. [/) ffi - .0 ~_ :> a f!: Z p: m;Z ::r:~ffil-rrlUJ5 ~ 00...1 ~ ~ ~ ~ 0 a: :c: II: w ffi tt ~ ~l- ~W..J<(rnw~rnw ~~ ~~~ zoo~~~~5~oc .....z 0--...J -U;O;:::Ja...wl- 0 I-wl-ZOll.o~e<~romoZ~~l- ~ - ill - ;t li:i li- <( @ lii W <( ~ oCt ~ :5.0 <( w6~~~~..J~zw..J~ffi~5wa...~~ ~~~~~~~i~~g~~~~~~~ill ~ to :E~ 3> 0.:I: z o t w~ 55 c::cr a..t> WUJ "...J iCw 010 ~\ i !~ \~ I i ! ~ ~ o z ~ (!) ~~ aol00~~~CR VV" Q~:~T TH~ SO/6ZltO ~~iAIA Document G70f' - 2001 Change Order PROJECT (Name and address): Boynton Beach Library 208 South Seacrest Blvd. Boynton Beach, FL 33435 TO CONTRACTOR (Name and address): Sessoms Construction 7485 Davie Rd. Ext. Holly'Wood;FL33024 CHANGE ORDER NUMBER: 001 DATE: May I I. 2005 OWNER: ~ ARCHITECT: ~ CONTRACTOR: ~ FIELD: 0 OTHER: 0 ARCHITECT'S PROJECT NUMBER: 0320802 CONTRACT DATE: May 04, 2005 Notice to Proceed CONTRACT FOR: General Constmction THI:CONTRACTISCHAN<;E()AS FOLLOWS: (Include. where app/ical;Jle, any undisputed amount attributable to previously executed Construction Change Directives) The original Contract Sum was The netchange by previously authorized Change Orders The Contract Sum priorto this'Change Order was The Contract Sum will be increased by this Change Order in the amount of The new Contract Sum including this Change Order will be The Contract Time will be unchanged by Zero ( 0 ) days. The date of Substantial Conipletion as of the date of this Change Order therefore is September 2, 2006. $ $ $ $ $ 5,727,485.00 0.00 5,727,485.00 189,963.00 5,917,448.00 NOT~: This Change Otderdoesnot include changes in the Contract Sum, Contract Time or Guaranteed Maximum Price which ba~ebeen aUtl)()ri~l:dpYc.:onsiruction<::~m~eDirective until the cost and time have been agreed upon by both the Owner and Contractor, in which.casea ChangeOrtleril(executed to supersede the Construction Change Directive. . ..-. ........ . ,- -- -. --... ,. .... . ,- .'. ....-.. -. ....-."~ NOTVAMIPt.J~TJtSIJ:;NEDI3YTf-IEAR(;HITECT, CONTRACTOR AND OWNER. Sessoms Construction CO, I IY\C... CONTRACTOR (Firm name) City of Boynton Beach OWNER (Firm name) 208 South Seacrest Blvd., Bounton Beach, FL 33435 ADDRESS P'~" Hollywood. FL ADDRESS BY(Sig~""J . . l.Vl? ~~,~\C:ePre3Iderl\- (Typed name) 05)\10105 DATE I BY (Signature) (Typed name) DATE RECEIVED MA'< 1 6 2005 Sessoms Constr. Co. AlA Document G7011V _ 2001. Copyright @1979, 1987,2000 and 2001 by The American Institute of Architects. All rights reserved. WARNING: This AlA" Document is prolecled by U.S. Copyright Law and Inlernational Treaties. Unauthorized reproduction or distribution of this AlAe Document, or 1 any portion ot it. may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AlA software at 15:30:44 on 05/11/2005 under Order No.l000169773_2 which expires on 3/21/2006, and is not for resale. User Notes: (761903194) SCHENKELSHULTZ ODD ARCHITECTURE ODD April 28, 2005 Mrs. Virginia Farace, Library Director City of Boynton Beach P.O. Box 310 Boynton Beach. FL 33425-0310 RE: City of Boynton Beach City Library Library Expansion I Remodel Contractor Additional General Conditions Negotiations Dear Virginia, As requested by the City of Boynton Beach. we SCHENKELSHUL TZ engaged in negotiations with Sessoms Construction to discussion and come to a mutual agreement on cost in reference to the additional General Conditions and Builder's Risk for this project due to the time delay in issuance of the Notice to Proceed. After several weeks of discussions between SCHENKELSHUL TZ and Sessoms Constructions, the following terms were agreed upon: Items agreed to: I. $185,000.00 for General Conditions for services up to May 3, 2005. 2. Understanding that this cost does not include the additional cost in association with material cost increase and will be reviewed as subcontractors are signed onto the project. SCHENKELSHUL TZ is connnitted to working on Value Engineering items to minimize additional cost. 3. $4,963.00 for the increase in the Builder's Risk policy due to the time extension of this policy. Item to be determined: I. At this present time, SCHENKELSHUL TZ and Sessoms Construction are unable to come to mutual consent on the terms of the daily rate which would be due after May 3,2005 if the Notice to Proceed is not issued by May 3,2005. The current daily rate in which SCHENKELSHULTZ recommends is $898.00 ($185,000.00 (negotiated GC) /206 days). The current daily rated requested by Sessoms Construction is $1,111.00 (GC+ anticipated profit per , , day). s,CHENKELSHULTZ is presenting this recommendation, as outlined above, to the City of Boynton Beach for review and approval. Please note that per our discussions with Sessoms Construction, they stated that they are not in the position to mobilize unbl they can bill and be paid for the additional cost mentioned above. We recommend that we re-evaluate the general conditions in the schedule of values to allow for early payment if necessary. .. Cc: Lee Sessoms/Sessoms Construction Alterraon PhillipslSCHENKELSHUL TZ 0320802/ owner outgoing G:\0320000\0320802 Boynton Beach librarylDP\Letten\0320802 Farace survey auth 092S03.doc 1300 North Congress Avenue. West Palm Beaeh. Florida .H409 Phone 561.697-3451 . Fax 561-697-5210 . www.sl'henkelshullz.colll . Arl'hiteetoral Lieellse No. AA-C000937 Ulll",/U<> nr.1J .La:all t-hA ~;)44atStS7lS~ . . SESSOMS CONSTRUCTION ~~~ SCBENKELSHULTZ \~O"l , . 8; Sessoms CONSTRUCTION COMPANY,.INC. April 27.'2005 Via faXlmail (561.697.5210) Mr. S.am Ferreri, PrifJCipal SCHENKELSHUL lZ ARCHITECTU.RE 1300 North Congress Avenue West Palm Beach. FL 33409 . Re: #379 - BOYNTON BEACH CITY LIBRARY Bid Number: #017-2610-04/CJD ()ear Sam, . Per our ~versation tnismoming, I am writing you to confirm our conVersation the. morning -of . 04122105. I Was in receipt of your response to my claim for m.y daily. costs on the subject project. In that response, you stat~ that you felt we shoUld. ~ paid. 16% of our actual ~ts as our total remedY fOr overhead and .profit This was discussed at our WednesdaY' project meeting. and , explained . \hat there was no way that those numbers would work for bur firm.' . We submitted our bid for this project almost eight months ag9; and by no fault of our oWn, we are still awaiting a Notice to ProOOed (NTP). The(e Is no language in thE! contract documents that address this unusual condition..' . Nearly sIX million ,dollarS of my com~ny's bonding has been tied up in this',project during this time. preventing. my organization to pursue profitable work. ThroUghout this time my General superintendent and I have accommodated SCHENKELSHUL TZ and the owners with weekly :meetings to discuss three issues: . -The permit -Our Claim -Possible cost reductions with Value Engineering (which, as we have discuss~. will'likeiy be a false economy). . A lot of time and effort has been extended on this project. and we have nothing to shoW for it, but a severely-!mpacted cash flow and an increasiogy disinterested sub'. base that originally bid the project. . " . The 15% thafyou propoSed is ~ ludicrous sum for the time and effort we have put forth to this point. . I nave sent you a revised spreadsheet With adjusted days on Friday and have included them with this correspondence.' . . . Bottom' line. in order to make this job work. our.company can accept no less than $185,000.00 for our daily costs. By acquiescing to this degree, we are ~~erely affecting OUr anticipated bottom line and are essentially donating money to the project when We have' rio obligation to do so: Bearin mind that this figure does not address the following issues: -Any delays after 5/3105 which will relate to an additional daily ,cost of $'1,111.00 e~ .,~ :::IMJ"-L __ ~:~ 7485 Davie Road Extension · Hollywood; FL 33024 Broward,(954) 431-7900 . Fax (954) ~36~6789 · ~G CBOll34 . G:\379 .l3oynton 8e8ch Ubrary\Cost ~\ation\0427Q5-185 offer B . . 04/27/05 WED 15:54 FAX.9544366789 SESSOMS CONSTRUCTION -+++ SCBENKELSBULTZ , '~'\oi;;.~~:"",,::< ~002 SCHENkELSHUl T2 ARCHITECTURE April 27, 2005 Page Two . ..subcontractor price escalations' . , -Increase cost of Builder's Risk'Insurance . ($4,963.00 +1,5% E:: $5,70!.00) Weare told that we wil~ have a NTP on 05103105, which I find unlikely pas~d On the history of ,this proj~t . to date. fn the event we receiVe our ~p in'the near f!Jture, be advised that we will not JX'CICeed with any work until OUr dally costs are agreed to and a device is In place, that will enable us to, bill and be paid for this Immediately. , Under the -circumstances, we have no 'alternative l>uf to' evaI~ate the Possibility' of terminating OUr contractual obligations as we have been hanging by a tJ:vead wafting for this project to commenCe. ' In the event ,that we' are f~ into ,that situation. we will still, take any' measure' n~ssary to protect oUr intere'sts, and tI1e offer of a reduced dalm of. $185.000.00 Will be rescfndOd and reevaluated. 'It is our . 'intent to wOrk through this process and complete the project ~n a timely manner. In order to prOceed With the work; we ~i'l need the foUowlng: ' . -cOntract Amendment for $185;000.00 'plus $5.n)7.00 for increased BUilder's Risk t6 be lulled. and paid upon Issuance of NTP , . " -Commitment that subc,ontractor's' cost escalation will be paid" , , -An inci'ease to our 'daily cost for each day ~,t 05103105 at an am'ount of $1,1 1-1:00 . , rn addition, It\vould' help if we had ,a reasonable noUflcation of preciS~ wh~ cOn~tructlon Will start in . order to mobilize our workfotc;:e. , " Agaln;.'1 stress that we are doirig our be!jt to work with e'l&ryone involved In this 'project. If you have any questiOns regar:ding this I~ller, do not hesitate, to contact me.' , Very trury yours. . Cc:' Fletcher L. Sessoms, seer Fred Jones, SCCI ' " BOb Scott; ,SeCI ' . Virginia Farace,libnVy Director Attachments t-SJmb 04/27/05 WED 15:54 FAX 9544366789 SESSOMS CONSTRUCTION ~~~ SCHENKELSHULTZ 141003 . , .. Sessoms .. CONSTIWCTION _ COMPANY, INC. #379 -"BOYNTON BEACH CITY LIBRARY Bid Number: #017-261 0-04/CJD -=- " -::: 7485 Davie Road Extension. Hollywood FL 33024 Broward (954) 431-7900 · Fax (954) 436~6789 CG CBOJ 134 Increase in Builder's Risk Insurance Quote 09/07/2004 Quote 04/25/2005 Total Difference 15% OH & p Total $ ,38,642.00 43,604.00 $ 4,963.00 744.00 $ 5.707.QQ , , G:\379 - Boynton Beach Library\Cost Escalation\Bullder's Risk _ B 04127105 04/27/05 WED 15:55 FAX 9544366789 ~;. ~ . . it< ,;- .' ... ;l; ~ "" ~J ... 1>\ ~ t:' ... .." -. - ~ '* ~ "'" ~ ~ ~ ~ :i ~'.'" ~ .:. .-.: 1: i1 :t ~ i 2 ...,. .~. ~~ ., ... -,. .... ~ :. ;f;. - ! ,.., ri: :d ...'1 ... 5 ~ .:: ~ ~ ... ;;I: ~ ..~ r.1I ""' ;; i :z. ~ [I- ~: ~- ! ~ ~ 'ii i i ~ i? ~ " ~ - .~ u SESSOMS CONSTRUCTION ~~~ SCBENKELS~~TZ _ ,.~,02_4 Collinsworth. Alter. fowler. Dowling i(Q french Group, Inc. Insurance and Bonds ?: $t9 N.W. ,~, Stn.r · _IOS . P.n 11oo< llll5 · M'..........., florido33014 . DlW 00S) ltlJ.7!OO . s.-.. ~_, MItt fax (305) ~-4294 · CIL fax ~ ~.244.1 September 07, 2004 Sessoms Construction Co., Inc. 1485 Davie Road ExtensiOI1 Holl~FL 33024 R.c: Boyton Beach Library Deer FletCher: FollOWing is BUilder's Risk qUOte for the above. pJease DOle we can issue poli~ upon request, however, qUOte expires 10/1104. Special Porm, exeluding flood and quake. Limit $1,200.000 Renovation. $4,300,000 Addition, $20,000 Tl'IlDsit, $20,000 Temporary. Storage, No coverage fro e)(isting bUilding. $5.000 Deductible AOP. except for W~ 2% ofvaJues at risk at tUne afloss, $50,000 minimum per oceur.rebce. Term j)r'eInimn S38.642 ~ Should you have any ttbeStion or ~eed to bind covetage,.pJease contact our office. iA=-~~ TOTFI.. P.01 09/07/04 TUE 13:37 (TX/RX NO 5741] 04/2.7/05 WED 15:55 FAX 9544366789 . r SESSOMS CONSTRUCTION r -+++ SCHENKELSHULTZ l4J 005 I" V. 7' J Jr. j / I Collinsworth, Alter, Fowler, Dowling 'at french Group, Inc. Insurance and Bonds . S979N.W.151 Saect. Suite 105. MWni I..akes,Florida 33014 Dade (3OS) 822-7800 · Browvd (954) 46>8601 · M (305) 362-2443 COVER SHEET Cornn.tcI8Ilnaurance Department DATE: ~.2-_~~5 :~) :~~ ATTENTlONOF ,.~ FAX SENT BY (NAME) : TOTAL PAGES. (INCLUDING COVER SHEET): /. , FAX SENT TO (COMPANY NAME) FAX SENT TO FAX NUMBER ~ RE: ~, /'J-'~Fk~~ . 718/2J .~ .. / COMMENTS: :Onfinning ow; quotation. \rcJ; Spec:ia1ty. :luitders Risk. \ll iJ-isk excluding flood and quake. \.rch Builders Risk loon. ~imit: S 1,200.000 renovation. $4.300,000 addition. A 3 (, o4!f. 8~ renn Ptemiwn: $ 41,425 plus tJIx, plusS 35.p1119 54.:;::' -, ~ )eel: 5,000 AOP, 3% values at risk at time of loss tOJ: wind subject to 50,000 miD. per oecurreoc:e. ;20..000- Transit ;20.000' temporary stDrage. ;tart date: 513/04 Tean 16 months. ~ludes: terrorism.tnold,oybem::ttOrism. THE INFORMATION CONTAINED" THIS FAX Il!iIN1"eHOED cti\..Y FOR TtfE U8E Of THE INCI'JIDUAL($) HMEO A8O\IE. . THE. ~ IS IfOT TttE INf'EMDEO RECWiIENT(OIt ~ RPfIONSIILJ! TO DELI\IER IT TDTHE IN'tENClED RECIPIENT) yOu ARE HERSeY AD\IIBED TtfAT AIff OISSDltMTION. D&B1'RUCTION ORCCIP'tItGl:If TttI8 COIMJNICA11ON t8 PRCIHBITEO, If YCtJ H4VE RECEIvED THa o-'r~TION IN ERROR,1'LEA8E IEICIMD EHOUGH1O NOTFY us lIeEIMlaY 8Y TElEPHONe AND ReTURN 'THE OR~ ~ 10 us rtWM. AT THE A8CM5~_ ... ..."'" · ........ ......... -,....- al I Dar.:ll:. ~ C:af:IJ: ,..061' "ROVE "LIMBER. 04/25/05 MON 15:23 [TX/RX NO 9055] 04/27/05 WED 15:55 FAX 9544366789 SESSOMS CONSTRUCTION -+-H SCIlENKELSHULTZ ~006 Boynton Beach City Library Sessoms Construction Company, Inc. Cost per Day Emplovee Rate per Day Total Rate per Day Bob Scott, General Superintendent (33%) $320.00 $105.46 Scott Wells, Suoerintendent $272.00 * Lee Sessoms, Project Manager (50%) . $344.00 $171.75 Trailer $13.42 Anticipated Prof"1t $220,000 /457 days ~ $481.40 per day $481.40 General Liability Insurance $150.68 . Partial Rate Per Day $922.72 DelayFrom Ten Days from Contract 206 Total Cosl Less Scott Wells $190,079.33 Scott Wells 8S adiusted below. $15,171.00 Less Trailer Costs to 2/8105 ($1,624.00 Total Costs from 10/10104 Throuoh 411/05 $203,626.33 . Total Costs from 411/05 Thl'Ough 513/05 '33 [ ays) $36,663.00 : . Grand Total $240,289.33 1.:11.- -\ -' a.,eott Wells was working On this project from 1/13105 thru 2/17105 (36 days) at full rate $272 x 36 days = $ 9,979 He worked from 2/17/05 to 411105 (44 days) on another project in the capacity of a carpenter at his full rate of pay. Deducting carpenter wages from his rate leaves premium we are paying to be billed to City of Boynton Beach $2724154 = $118 $118 x 44 days = $ 5,192 $ 9,979 + $ 5,192 = $15,171 Total Rate per Day After 411/05 will be $1,111. Increase cost in Builder's Risk Insurance a $5,707.00 not included in above ~\1"~~~ \ , ,\ f 1 tn r ....: .- .J.-r- 0,\ jl; i1-,;; ~"'>.. ....,/ ~ ," "'0"'0'" CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VI.-CONSENT AGENDA ITEM G. Requested City Commission Date final fonn Must be Turned Requested City Commission Date Final fonn Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office [8J August 2, 2005 July 18, 2005 (Noon,) 0 October 5,2005 September 19,2005 (Noon) 0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon) 0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 October 17,2005 (Noon) 0 September 20, 2005 September 6, 2005 (Noon) 0 November 15, 2005 October 31, 2005 (Noon) NATURE OF AGENDA ITEM o [8J o o o o Administrative 0 Development Plans ,~ ( ~, Consent Agenda 0 New Business .". L Public Hearing 0 Legal .'. Bids 0 Unfinished Business N 01 Announcement 0 Presentation J ....-." , " ::?~ ,v~.{--< '--<0 ") -q CO ;....'IC:) - ~:~ -< ~,)~ ~<~z ,,) "1 ''I co ,:...,) orTl (.-.)''1 )> RECOMMENDATION: Approve change order # 2 for the Library Expansion Project in the amount of$85,615 t~ (J cover the Contractor's labor and material costs associated with changing FPL power supply to the Civic Center from above ground to below ground, and installing two conduits for BellSouth phone lines. City Manager's Report EXPLANATION: Electricity to the Civic Center is currently provided by FPL overhead lines coming from Seacrest Blvd. These lines need to be rerouted in order to move forward with construction as they are in the path of the library expansion. Florida Power and Light will remove the pole and reroute the lines underground but the city/project has to provide a protected conduit underground to accommodate the electric service lines to the Civic Center. The above ground pole and lines providing that service cannot be removed until this new conduit is available to FPL. BellSouth has 600 phone lines running east to west that will be partially covered by the new entrance and needs two additional conduits to assure a future repair route. PROGRAM IMP ACT: The poles are preventing the contractor from proceeding as one pole is located directly in the footprint of the new foundation. The overhead lines are also inhibiting use of tall equipment trying to cross underneath to access the property. The phones lines service 600 homes on the west side of Sea crest Blvd. FISCAL IMPACT: Adds $85,615 to the Contract Sum. Funds to come from the general CIP account. AL TERNA TIVES: Other alternatives have been rejected by FPL or are more costly to the city. (I( 1~ Library Department Name Department Head's Signature S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC \..iAIA Document G70r" - 2001 Change Order PROJECT (Name and address): Boynton Beach Library 208 South Staertst BlVd. Boynton Beach, FL 33435 TO CONTRACTOR (Name and address): Sessoms"ConstructioIl 1485 DaVie Rd. Ext. HollYwood, FL 33024 CHANGE ORDER NUMBER: 002 DATE: July 25, 2005 OWNER: r8J ARCHITECT: r8J CONTRACTOR: r8J FIELD: 0 OTHER: 0 ARCHITECT'S PROJECT NUMBER: 0320802 CONTRACT DATE: May 04, 2005 NOlice to Proceed CONTRACT FOR: General Construction TffECONTRACTlSCHANGEDAS FOLLOWS: (lnclilde. whereapp . isputed anwunt attributable to previously executed Construction Change Directives) li:J.c;l\lde C(l$UgfuTIlI duit for FPL to run lines underground to the Civic Center for power and abandon the above ogr()tJridJii1,~s,fun . ng lot. $ $ S $ $ 5.727,485.00 189,963.00 5.917,448.00 85.615 6,003,063.00 rized Change Orders ge Order was by this Change Order in the amount of is Change Order will be ged by THD ( TBD ) days. IllpIc:yon as of the date of this Change Order therefore is September 2, 2006 ~QtE:This, .li.~ye been onstlUcq' CQntr:l.ct(jr.IlliWI1IshSllSe a Change? t:l1anges in the Contract Sum, Contract Time or Guaranteed Maximum Price which e Directive until the cost and time have been agreed upon by both the Owner and cds executed to supersede the Construction Change Directive. NQ"VAtI(jill~IJ~;$l~NEDBY THE ARCHITECT, CONTRACTOR AND OWNER. sa 1Z ~CHITE,g'\"'rffrnti'name) Sessoms Construction CONTRACTOR (Firm name) 7485 Davie Rd. Ext., Hollywood, FL 33024 ADDRESS City of Boynton Beach OWNER (Firm name) 208 South Seacrest Blvd., Bounton Beach, FL 33435 ADDRESS 'Z BY (Signature) Lee Sessoms, Vice President (Typed name) (Typed name) DATE DATE DATE AlA Document G701"'- 2001. Copyright (> 1979, 1987,2000 and 2001 by The American Institute of Architects. All rights reserved. WARNING: This AlA" Document is protected by U.S. Copyright law and International Trea1les. Unauthorized reproduction or distribution of this AlAe Document, or 1 any portion of it, may resul1 in severe civil and criminal penalties, and will be prosecuted 10 lhe maximum extent possible under the law. This document was produced by AlA software at 15'13:35 on 07/2512005 under Order No.10oo169n3_2 which expires on 3121/2006. and is not for resale. User Notes: (2366607797) --.--..-.... ............... v....~, ~ VV..L ~ Sessoms ,. CONSTRUCT,ION _ COMPANY, INC. JUly 25,2005 - - Via fax/mail Virginia K. Farace, Library Director Boynton Beach City library THE CITY OF BOYNTON BEACH 208 South Sea crest Boulevard Boynton Beach, FL 33435 Re: #379 - Boynton Beach City Library Permit #04-4476 Dear Ms. Farace: Please allow this letter as my authorization to permit John Marks Ill, our Superintendent, to sign for revised Change Order #02 in the amount of $85,615.00. Very truly yours, b- Lee Sessoms (License # CG C049662) Vice President Cc: AI Phillips, SCHENKELSHUL TZ ARCHITECTURE 1mb Sworn to and subscrfbed. before me this 25th day of JUly, 2005. ~/)~ Notary Public ,:;;~, MICHELE D. BURNS :: ') MY COM...ISSION Ii 00125876 . ';31. EXPIRES: July 20, ;1006 ";')TARY F'l Notwy s.iMoo & BonclInir. Itle. G) MICHELED.BURNS , MY COMMISSION., ,00125876 , EXPIRES: July 20. 200e l-llQO.3-NQTAIlY Fl ~ Sorw;QO & BonclInQ. It'le 7485 Davie Road Extension. Hollywood, FL 33024 8roward (954)431-7900 · Fax (954) 436-6789 . CG c:aOl134 :::;~ C:\G Drive Info\379 -Bovnton L1brarv\Chanoe Orderl07 -25-05 JM to sian CO 2 ft~ii~~. :;'.... ~~,~ \.:..~. La.Jtj_~I:~^i:....-:: ~~ - "".' From: Stephen Cotton [mailto:stephen.cotton@tlc-eng.com] Sent: Tuesday, July 12, 2005 8:02 AM To: Phillips, AI Subject: RE: Boynton Beach Library- Added cost for Underground Electrical The cost appears to be an acceptable value to the owner. -----Original Message----- From: Phillips, AI [mailto:aphillips@schenkelshultz.com] Sent: Monday, July 11, 2005 7:06 PM To: stephen.cotton@tJc-eng.com Cc: Phillips, AI; Ferreri, Sam Subject: Boynton Beach Library- Added cost for Underground Electrical Good Evening Stephen, Have you had a chance to look at the cost for the added electrical items at Boynton Beach Library. Please let us know what you think of the cost. Thank you, )I{terraon Plii{fips CONSTRUCTION ADMINISTRATION SCHENKELSHULTZ 1300 N. Congress Ave. West Palm Beach, FL 33409 Phone: 561-697-3451 Fax: 561-697-5210 . ---,' ./ '~ Sessoms CONSTRUCTION COMPANY, INC. .-.= 7485 Davie Road Extension · Hollywood FL 33024 Broward (954) 43 I -7900 · Fax (954) 4 36~6789 REQUEST FOR CHANGE ORDER CG CBOI 134 MEMORANDUM DATE: July. 2005 AI Phillips, SCHENKELSHUL TZ ARCHITECTURE TO: FROM: Lee Sessoms, Vice President RE: #379 - BOYNTON BEACH CITY LIBRARY Bid #017-2610-04/CJD RCO # 01 REVISED Description of Proposed Change: Labor and material associated with changing power supply to the Civic Center from above ground to below ground. This ReO specifically excludes any additional concrete work or demolition work other than trenching. secl cannot be held liable for any damage to BellSouth cables. We will endeavor to protect as best as possible, however, since they were installed in 1961 we have no idea what condition they are in. Reason for Change: Per Proposal Request #01 issued 06/09/05. Additional Cost: SCCI Overhead and Profit (15%): Subtotal: City Permit Fee (2%): Subtotal: SCCI Bond Premium (1%): PROPOSED CHANGE IN CONTRACT AMOUNT: $ 72,265 $ 10.840 $ 83,105 $ 1,662 $ 84,767 $ 848 $ 85,615 PROPOSED CHANGE IN CONTRACT TIME: To Be Determined (TBD) days Cc: Virginia Farace. Library Director Attachment: Supplier/Subcontractor Proposal LS/mb C;\G Drive Info\379 - Boynton Ubrary\Change Order\01 Rev 07/22/2aS5 19:~1 19548677E143 ~,-__,-"., 1j;.1-~"""" I ,,-l....... .-.----/ eleon ELECTRIC INCORPORATED 215Cl NoW, 33tll1 stnIet. SuIt8 C. p~no Beach. F\.. 330GB (IilM~49 (95A)91~g FAX STATIi UCENSE ecooo1331 July 21 , 2005 B..EQugST FOR G.~NGe ORDER Jab No-: 5602' R.C.a. No.: 1 R3 R.F.P. No.: SESSOMS CONSTRUCTION 7485 Davie Road Hol~ood,FL 33024 Attention: Robert Scott Project: BOYNTON BEACH LIBRARY BOYNTON BeACH, FLORIDA Referencs: Underground Electrical for Civic Centsr '-----..--' Gentlemen: We propose to Increase. our contract total In the amount of;. SEVENTY TWO THOUSAND 'l"WO HUNDRED SIXTY FIVE DOLLARS AND NO'. CENTS ($12.285.22 ) for the following: ' Proposal: Eleon Electric, Inc. proposes to fumish and install the following electrica' changes: TelePhone Work Utility Work TOTAL $ 19,678.12 1.52.587.10 $ 72,265.22 Drawi~ E102 Revision # 3 Datad.!l3/05 . ~ Add (2) 48 condits/Wire for new utility feed for CiVic Center. Drawinas E..4g1.B.!~ion 112 Dated 6/3105 _ Demo existing SWItchgear. _ Add new 800 amp disconnect and RT gutter. _ Add (2) 4" conduitslwire between the 600 amp disconnect $nd gutter. _ Install new power feeds to (1) existing panel and the building main power feed. '~./' P""1I1Dfl ReO '\R3 07/22/05 FRI 09:51 [TX/RX NO 5611) ~I{~~{,~~~ ~~;D~ J. ;:J::>~OO { r 1.?'+" r=.'-\.,.I~I" ~L-~~ f T'\.&....... r-H~, l;J'.:lf U.;1 "--./ Note: As per requested from Sessom's Construction to install just North of existing buUding. Routing to follow existing cable locations. - Add (2) 4- eonduitslfull string and J-bo~es for Telecom. Exclusions - Dewatering and shoring of trenches - Concrete encasement of conduits . - Our bId price does not Include any cost for the existing Bellsouth direct burled, cable if damaged during this installation of the new conduits for BellsDuth. We have included hand digging to minimuze the chance of damage to the direct-buried cable. TOTAL This Request For Change Order$72,265.22 STIPULA TIONS= This proposal is baaed solely on the usual cost elements such as labor, material, and normal markups and does not include any amount far additional changes in the sequence of work, delays, disruptions. rescheduling, extended overhead, overtime, acceleration, and/or impact costs; and the right is expressly reserved to request an equitable change order for any and all of theSe related items prior to final settlement of this contract. General C;;ontractor work not Included (concrete, trenching. chopping, painting, etc.) unless otherwise noted. This proposal --,' must be acoepted within 5 days. after which time it will be subject to escalation. We are currently requesting a time extension of 0 days in conjunction with 'this change. ~ o o We will be pleased to proceed With this work upon receipt of your change order in the above amo~nt. . Inasmuch as we are proceec::ling with this work as directed, we would appreciate receiving your change order in the above amount. Inasmuch as this work has been completed, we wDuld apprecia iving your change order in the above amount :AYNE ROSS Project Manager ce: file .........~./ Page 2 of 2 ReD 111t~ 07/22/05 FRI 09:51 [TX/RX NO 5611) ~I-L~-' ~~ iO:~~ rnu'- project Name: BOYNTON BEACH CITY LIBRARY RCO #: 1 :J~!Stl., '( Il)qq T-nH t'llll-'l4r It'Ilt'Ib I:' -~ql GRAND TTL Date: 7/2112005 Estimate '/#: 5602 ~~. t'"" ~I ~i ~... ~~_..\...."" _OJ_\f'- ,,~ J..'-~r -~r'~ '-'-'-~ ~~11' 'j"r. -... r .~ ~ ~JL-:l:F -)~",'rr' " .... i ,,'" ~, ,r'7"l"'~ rr~l' 1'.o.I1~~~-:"" \"" > 1 '" I" '~':1''''' ,. r:rl-~ '-"j ;!-\;.!~~: ):,1;;. ;\~_c> ~'~?T<~ ',,', .~?:~ ':; ~~"~" ~i~:, ~;~~'~"0' ':.-:'~:')"~:~';;;;i~ ~'> '.>f .;;: n , :,f~. ~'_::#;';~:";:;-''''T:7'''~~; :'" :~7~9;C;,~' ~;:'l ~2<.!..1~lJ":rc1.Vfl.lt.t~, ,r,.: :",,,,,}Jlu,,I.;,,,,;~,,,,,,'0""""'i/:C1;~""";"':';',l ,,,')_~>;iI;i~+"~:;;'L'<'.~Jt.",,,,,,<,..~c'ii,;Jj [~aterial] TsJC 6.5% Overhead: 10% Fee: 5% $33,917~61 $37,309.37 $39,174.84 (T otal Materlaq: 539,114.84 [Project QuotalExpcn$eS (taxable)] Switchgear: $2,300.00 light Axtures: $0.00 fif9 Alarm : $0,00 TVSS $0.00 Card ASsess System $0.00 Material Handling: $0.00 UftslToDla: $0,00 TeBting: $0.00 Pttrmitting: $0.00 Temp Power/Storage: $0.00 Sum Expenses: $2,300,00 6-5% 10% 5% $2,449.50 52;594.45 $2,829.17 $2,829.17 $9.116.18 Tax: Overhead: Fee: Subtotal: Irrotal Proi.ct Ex~ena-1: [Lab""] rate % of hours Ganeral Foreman @ $58 30% $8.854.59 straight Time J-man @ $44 70% $15,319.61 Straight Time App @ $39 0% $0.00 Overtime F-man @ $6 0% $0.00 Overtime J-man 0 $11 0% $0.00 Overtime App @ $9 0% SO.OO rr_l Labor]: $Z3.974.20 . [Project Exp.n... (non.taxable)) Labor rate % of hours Project MBnBgef @ $65 5.00% $1.818.52 S~perintendant @ $80 7.50% $2,238.26 Estimator 0 SSO 3.00% $895.30 Clean-up @ $15 5.00% $373,04 Admlnlstabve <<I $25 O.Dp% $0.00 As Builta @ $58 1_0Q",(, $28BA9 L8yout @ $58 2.00% $576.97 Safety Program CD $60 1.60% $298.43 SUm Expenses: $6,287.01 Subtotal: $6,287.01 Total Material Total labor Total Ellp.nS8B $39,174.84 $23,974.20 $9,118.18 SUBTOTAL Reo . S72~28S.22 BONDelf applicable) TOTAL BOND rate: 0.00% . 50.00 TOl'AL AMOUNT OF Reo: $72.265.22 Page 1 07/21/05 THU 18:26 [TX/RX NO 5601] ~l-~~-~~ ~D:L~ rnun- :::l~~b'('{ ~ 00500 oo!lOl 00$02 00503 00504 00505 00511. 00512 005~9 03009 !-LO~ r~~~/~VU r-J~~ Elcon Electric * * BID TAKE - OFF DETAILS - FORMAT 2 · · . .. Job: BOYNTO~ BEACH CITY' U8RARY · · Job Number: WAR05802 ."* Bid Date: 6/24/2005 .. .. P.~. 1 Dat. 7/21/2005 8!2]!46 ~ 2 Mi.Q81~~Rous It... 2 PVC C~~ ~GALtPOUal vC~~41P 2 48" X 48" OP~N ~ .-~aArrl 2 ~RA~.L BaSE FOR ~M~m 2 WA~I~G TAPE ;.! 'rUPCJn:NG )75' " ,DAYS 2 TRSMCBING MDBILI~TIO._ . 1 2 EltC1.0DI!: SHOanlS or 'l'RDfCtlf;S 2 ~ObE C:ONCIl.BTZ IilNCASIl:MI'.a1' OF 2 H~D nIGGI~G ale of EXISTIN~ C ;.! 4" ~ue SC~ 40 2 4" I'Ve 90 !;LBo" 2 4 N PVC COUI;'I>DlG 2 .;n P\7C ~ ~PTU 2 'I" PLASTIC aos~l~~ 2 l"Ii:1.1oOtr S'~ l5'tltIlIG 2 'I" pve 45 ~"OOVf 2 .. n rvc CoIJPLrNG 0.00 1.00 1.00 1.00 1.00 - ..00 1.00 ;1-00 1.00 2.00 7:10.00 6.00 12.DO 6.00 6.DO 82:5.00 2.0D 4.00 4.5" 19.117 4.535 6.207 SI.9l!:2 o . 0:21 18.424 4.535 56.972 1224.750 53.250 58.575 532.50D 1!>'.7S0 .T 56. 972 1224.75 5:S.23 .58.58 2130.00 159.7& 34:24.ilJO 114.701 54.4:aS :n .244 :;~.771 17.$13 36.849 7,44&." oosoo leB.J1PNDERGROUNOJB1D2 IFPL CDNDlJITS ,<No NamP l<No NtImII> - Breakout Multlpb,.; Caunt. 'I Martal Cost..,.oo labor HoUftl-1.DO OOSMi 0050' OOS08 00509 005).0 "0513 3009 2 MiscellaneoU8 ~t... ~ PVC CI!:MEN'l 1GAL(l'otJlt) Yc994:J,t' 2 TItJ*QH~JlQ 200' II 3Dl1.YS 2 ~R2NCHIR~ MOBI~IZ~~10N 2 WAIlJUtolG TAPlt 2 HIloDP D:[GGIIIG @ Cl:'lnC CBN:rn WA 2 EXCLUD~ SHORING of "~CHms :2 excLDtI~ CONCRI!J'l'Il I!:NCAS5MEBT OF 2 4- pVC 90ft 40 2 4" pvc CONoux'f $Cjf 40 2 4 of PVC 90 ELaOlf 2 4- PVC OOOI'LI~G 2 4" lave HALl: ADAPTI!;l\ 2 .." l:.ocnIO't Z 4" PUS'l'IC DUSJ(:tNG 2 350 MCM THHN CO STR 2 U THHlf cO S'1'R 0.00 1.00 3.00 1.00 1.00 1.00 LOO 1.00 400.00 13.32 4.00 8.00 4.00 4.00 4.00 1720.00 430.00 ..567 4.567 It.l1? 4.535 6.207 8.10 9.&62 6.788 1.827 S15.~"1a 1597.50 lSg.7!> 58.58 la2lL 1503 6(/.826 "16.467 36.283 24.S:l9 32.5'72 39.848 11614.977 78:>.::;67 '16,00.77 OOSOO IPR #1 UNDERGROI,)tJbIS!J1 lpPL COAICXJITs 1':1\b NtJmtJ> 1<1'10 Name> - a....kout Muldpllers: Count -1 M..rial eo.C 11: 1.00 ~r Hours - 1.00 00$14 00515 00515 00~;l7 OOS1.9 01003 56. ''7~ 532.!>OC 1611.7$0 58,575 Tutallll 2 M~se.~laneou~ Items 2 'I" colfbCI'l' HUS ~ nfS 2 CleMO Z 6DO~ 3~ .3. ~9~b bIScoNN~ - 2 1/4X4 RD ~D TOOGLs DLT 42tl Z 350 MCM "IP; TKRM LAIlOR 2 *2 - n IfIItJ: 'I'SIlM I.a.1!IOR 2 JIG - 'I/O W1aB TEaM LAaD~ <! 12X1.2xCi aT G'l,lTTElt - QUOT'ED 2 1/4X. IU> Hl"oD oroGGLl!l BLT 42n. 2 6110LS POLARIS TAl'S. ll'l' mJ'X~Q 2 11 GIlOlnlb BAll '" 6HOLE . 1\'1' 'su >>> GROUrlDllIG "DlSCONNECT_c 2 1-:1./4" EIft 2 1-1/4" ~ CON" 00Mr STY 2 1-1/4" tLA"lC aU'HIWQ 2 1-1/." 2MT COOP COMP STEEL 0.00 2.00 1.00 1.00 4.00 l.'.Dl) 4.0D 1.00 LOO 6.00 ".00 -1.00 0.506 69.225 3'.405 :1.$8.1153 0.S06 SO.OO 2.00 2.00 5.00 3.195 6.~D4 1..05!5 6.85. Page: 1 ~U.326 2.023 3.03_ 2'76 . ~O )'...0 159.771 13.1107 2.110 34.270 Laber Unit <11I0 MuntJ> 0.001 B,ODO 0.500 0.500 8.000 0.1150 1.000 0.320 1.000 1.00D 0.001 1.850 o. 20 I<NO Nome> 0.00:1. 0.!00 4.000 0.160 0,160 1.000 0,320 1.000 l.ODO 1.000 0.04' 0,020 1 </tiel. NiMe>. 0.7&0 16.000 la.OOO 0.150 0.750 0.330 O.SOO 8.000 0.150 1.000 2.000 0.070 0.2:;0 0.313 O.SOO LAbar Hr &tended -0.001 8.00 0.50 0.50 16.00 120.000 6.000 3.840 6.000 6.000 0.825 3.,00 1.280 172..' 0.001 0.50 ..00 64.000 2.131 4.000 2.!S!i0 .;000 4.000 4.000 7...:) 68 8.600 17..18 l.~oo 16.00 15.00 0.600 12.000 1.320 0.500 8.00 O.~OO 4.00 2.00 3.500 0.500 0.52!> 2.500 D~" : 7/1Z1f2DOI 8:<lJ:61 AM 07/21/05 THU 16:26 [TX/RX NO 5601J V I ! ~o.J! V..., lJ1.V.l'l.L-.J..~.1. 1."['1A. Oo.J~"*o.JVV' VQ I(l/-LJ.- i!l::J .10:L::I rnun- IJD...:1IJV.ll'l~ '-'Vn"-'~.1'\I.-''-'~ ~Vl'l J:JLi 1;)0 I 110":1":1 ....,.....,.~ 0vnr.d"J,\.LL..:Jn.:_l~~'. L -~. .. , l-~O.l rtJl/.I[)i~J~Jtl r-.;:;,,;;.i Eleon ~'.ctrh~ · W BID TAKE p QFF DETAILS -. FORMAT 2 '* · __ * Job: BOYNTON BEACH CITY UBRARY Of.. Job Number. WAR.D5602 .. Bid Dllte: 8/2412005 -- . ~age 2 Date 7/21/2005 B:23:51 AM SlNef tJ1 2 1-1/" ~KT 1 HOLE STRA~ 5.00 0.753 3.765 0.053 0.265 2 .3/0 TKH~ eu ~~~ 50.00 3_333 ~~6. 673 D.03:l 1.1500 2 2" I:M1' 10.00 4.775 .7.7" 0.090 0.\100 2 2" ~ coNN OD~P S~L :Z.OO 14.391 ~B.792 O.!lOD l.. 000 2 2" l'J.J\STIC BOSKlaJO 2.00 2.2l'l~ 4.53'7 0,500 LOOO 2 2" Oa.ttS'N\O'r STRAPS 2.00 1.896 3.191 0.050 (I.1Oa 2 .1/0 ~HN CO ST~ 100.00 2.U6 214.508 0.024 2.420 2 lei '1'KHN CD STll z~.oo 0.61)'- 1!L027 0.012 0.308 2 2" La BODY LOa UL OS3 46.053 2.500 2.500 2 COVi:~ zlN 8966 1.00 10.701 10.701 o.1~c O.lS0 ~ GJ\$KE~ 2J:N 8876 1.00 2.446 2.H6 0.001 0.001 ~>> .0tIA DISC TO RT GUTTER ccc 2 ... 1iiM'1' 60.00 :\.2.645 7~S.1578 0.210 12.600 :l .." KMT CONN CClM~ !iT!. ".00 120.963 1183.85J. 1.000 4.000 2 -1M i!Ift '0 ex,El0ll 2.00 7fi.Q~5 153.7J.O 1.:lJJ 2.666 :2 4" ~ CQlJP calli' STIIlEL 6.00 !2.6.~ 955.892 1.250 7.500 2 3SD MeN TH~ CU STR 360.00 (;.799 244:!l. liOO 0.044 1!\,1l84 2 .1 'l'lDlN C1] STl\ 90.00 1.en 164.421 0.020 Leoo 2 .- UN~STRUT s~PS 10.00 3.073 30.725 0.015 0.750 2 .- p~TIC BDSHING 4.00 ~.962 39.946 1.000 4.000 >>> 1fT GUTTIfJf 'fa SUII.DING I/IIAIN <<0:; 2 4" EM'1' 10.00 1.2. 645 12fi.446 o ;:n 0 2.100 2 4" !:H'1' CO!fN COItP Sn. 4.00 120.963 483.8!H 1.000 4.000 2 500 NCH THHN CU S~~ 100.00 9.581- illS' .'106 0,050 5.000 2 13 'l'HRN CU STR 2!i.DO 1.141 2B.531 0.016 0.400 2 4" Ub!IS'l:IlUT S'1'IU'oE'S 2.00 3.073 6.145 D.07!1 D.l!lO 2 4" P~T~C ~~~krNG 4.00 9.962 39.948 1.000 4.000 2 4" f,B BODY 1.00 27:z.4S9 272.459 6.250 6.250 2 coVER 3-1/27N~4IN BD6!1 1.00 27.545 27.~.~ 1),190 0.1~0 2 ~SKET )-1/3I~~'I~ 08?9 1.00 4..2' 4.4~~ (1.(101 ~5ir' ToMllI 7.....87 .. " " Gnlnd''Tatalal 31.U1.Szl --I 497.391 01005 ol009 Ol009 Page: jZ PIlla: 7121/200S 8:23:62 AM 07/21/05 TBU 16:26 [TI/RI NO 5601] CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VI.-CONSENT AGENDA ITEM H. Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to Citv Clerk's Office Meeting Dates in to Citv Clerk's Office [g] August 2, 2005 July 18,2005 (Noon.) D October 5, 2005 September 19, 2005 (Noon) D August 16, 2005 August I, 2005 (Noon) D October 18, 2005 October 3, 2005 (Noon) D September 6, 2005 August 15,2005 (Noon) D November I, 2005 October 17,2005 (Noon) :."-) -'- D D October 31, 2005 (Noon}; --l September 20, 2005 September 6, 2005 (Noon) November 15,2005 - - -'1 D Administrative D Development Plans 01 -- [g] D '--,. NATURE OF Consent Agenda New Business 'J AGENDA ITEM D Public Hearing D Legal ['..) " D Bids D Unfinished Business ~ =-~~ ~- f~(-~i~ D Announcement D Presentation '.:.:~ =c D City Manager's Report RECOMMENDATION: Approval ofa $5,000.00 donation to the Juvenile Transition Center, Inc. ESTEEM Program, from the state law enforcement trust fund. EXPLANA TION: In accordance with Florida State Statute 932.705 the Boynton Beach Police Department maintains a law enforcement trust fund which has a current balance in excess of $15,000.00. In accordance with the statute, the department is required to expend or donate 15 percent of the proceeds in the trust fund for the support or operation of any drug treatment, drug abuse, drug prevention, crime prevention, drug abuse education, safe neighborhood or school resource officer program. The Juvenile Transition Authority ESTEEM program which serves the Boynton Beach community, includes a strong anti-drug/anti-crime educational component and as a result, is qualified to receive funding from the law enforcement trust fund. The JTC is an established program that has received funding in the past. PROGRAM IMPACT: Educational and personal development opportunities for youth residing in the City of Boynton Beach. FISCAL IMPACT: The law enforcement trust fund contains sufficient funds to provide for this donation. Current balance in excess of$25,000.00. ALTERNATIVES: None. ~eoo" S;gn,,,,,: Po he E'-. Department Name City Attorney / Finance / Human Resources S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC 71ie Juvenile rrransition Cente~ Inc. 1901 !N Seacrest (jjlvtf. (Boynton (Beacn, tEL 33435 Jul.y 14, 2005 Contact Infor.mation organization Name: The Juvenile Transition Center, Inc. Program/Project Name: Encouraging Students Through Education, Employment & MSntoring (ESTEEM) Contact: stephanie Mingo-McKoy, Executive Director 1901 N. Seacrest Bl.vd. Boynton Beach, FL 33435 Office-(561) 742-6557 Cell-(561) 306-0252 ESTEEM Program Description A. Organizational ~ssion The Juvenile Transition Center's mission is to mitigate the incidents of youth violence and juvenile delinquency by providing education enrichment, mentoring and job training skills to youth ages 12-18 in Palm Beach County- C. ESTEEM Progr~ Services The Juvenile Transition Center, rnc is a public service organization that provides educational enrichment, economic development and personal empowerment services to the youth of Palm Beach County through a program called ESTEEM. ESTEEM is an acronym for Encouraging Students Through Education, Employment & Mentoring. ESTEEM primary focus is a year-round educationally based program for youth currently attending a public or private school, unlike many traditional youth programs, which are recreationally based. ESTEEM serves at-risk youth ages 12-18 whose family meets the federal low-income guidelines and who has also demonstrated a need 1 for services, evidenced by at-risk barriers (juvenile delinquent, dropout, truant, one or more grade levels behind, pregnancy, use, sale or distribution of illegal drugs, etc). ESTEEM provides an extremely detailed case management file on every program participant from the initial application until the student exits. As mentioned previously, each student is required to participate year-round. At the end of their term, recommendations for subsequent terms will be made for those students to remain active or the student will be recommended for follow-up status, which means they will be come inactive. Active ESTEEM students are offered a comprehensive continuum of services designed to generate characteristics that are indicative of pro-social citizens- Those services include the following: EDUCATIONAL ENRICHMENT Academic Remediation- Students are pre-tested using the FCAT competencies & TABE assessments, if their scores indicate any deficiencies, they are then identified and placed in academic remediation non-tradition class setting. The academic remediation component provides educational support to improve educational excellence among those underrepresented minority youth in the areas of the Florida Comprehensive Achievement Test (FCAT), and other norm-referenced tests. This component offers tutoring and homework assistant from State Licensed Teachers in the four core disciplines (Math, Science, English, and Social Studies) to all active participants in an effort to achieve the maximum level of productivity. Academic Intensification- This component was designed for the highly intelligent, economically disadvantaged, at-risk youth that demonstrated mastery (loth grade level or higher) on their TABE pre-test. The academic intensification component provides tutoring/homework assistance in honors and Advanced Placement (AP) classes, SAT/ACT practice sessions and workshops, and registration for college entrance examination (SAT, ACT, etc.) as well as, Financial Aid workshops and College selection techniques. Students are required to register for a college exam, take the test, and report scores to the schools of their choice and to the ESTEEM program. ECONOMIC DEVELOPMENT Job Training Skills- This is a very critical element, mainly because it helps to develop the proper work ethics (grooming, job searches, completing application, telephone skills, interviewing for the job, punctuality, performance, and job 2 1m: Stephanie Mingo-Mc~Fa:r: +1 (tlt11 )~~t1\,tl:StH:H 10_ \..Jnlcr IllIll"'I..-Lf"\ retention) of each student. In an effort to promote self- sufficiency, the JTC has partnered '"i th the business communi tJ to provide on-the-job training experiences to our program participants. This collaboration presents opportunities that could lead to gainful employment with area Municipal Government Agencies and corporations (Wal-Mart superstore, Wendy's, Target, and Simon Malls). ESTEEM participants will be monitored once weekly by a JTC Job Coach to verify their attendance, performance and to ensure compliance with the child labor laws. Not:e: Fa:mi~y members are a~so e~igib~e t:o at:t:end our job t:raining sessions, conduct: t:echno~ogy-based job searches, and exa:mine t:he book of job ~ead.s t:o assist: in t:he t:ransit:ion of we~fare-t:o-work init:iat:ives, which u~t:imat:e~y reduces t:he une~~oyment rate. PERSONAL EMPOWERMENT Mentor/Mentee Services- Each student will be assigned to an Adult Mentor for the purpose of learning to live as a productive contributing member of society, an active listener, offering sound advice, and bestowing leadership qualities. The students will reciprocate by mentoring (reading, listening, offering positive advice) children (ages 5-10) in the after school program under the direction of the City of Boynton Beach's Recreation Department. Students are encouraged to participate through a point system. Students can earn up to (2) points for each session, every 50 points can be redeemed for a $20 gift certificate from business partners (Target, Simon Mall, or Wal-Mart) . Druqlcr~ Free Communieies- students are encouraged to be productive and positively involved to enhance the quality of life in their community. This element of the curriculum addresses: substance abuse, crime prevention and abiding by the law. students are motivated to attend these seminars and workshops by earning points that could be used to participate In opportunities such as: Educational Fairs, School supplies, Recreational field trips, gift certificates, etc. 3 om: :jtepnanle Mm9o-MC'r-~I': Tl,nOl ~Ol:t~OHI 10: LHler- II\11MLt:"- r~". ,"'t~-u 10;"" r n'=tll:: .J VI.J t 11'-11 :o~a,. ....v., .-., L,................ 'L,.L.'-" ,., Florida Universities partnership programs- FUPP is a partnership between the Juvenile Transition Center and Florida A & M University, Florida state University, University of central Florida, University of South Florida, and Florida Atlantic University. The Universities offer agencies such as the Juvenile Transition Center, the opportunity to participate in educational fairs throughout the year. During those educational fairs, students are given the chance to earn Full Academic Scholarships. The key is preparation. Because the JTC target population is economically disadvantaged at-risk youth, who might possibly be a first generation college student, they may have the privilege of entering college with a minimum grade point average of 2.0 and a SAT score of 900. Instead of the standard minimum of 3.0 grade point average, and SAT or ACT with a minimum score of 1100 or 17. Currently, the Juvenile Transition Center has eight students attending Florida A & M University, Florida State University and University of Central Florida. Through developed partnerships we have opened the doors that many of our participants didn't realize existed. D. Conc~usion While it is vitally important to support the efforts of post secondary opportunities for the disproportionately underrepresented student, it is equally as important to ensure that those students are adequately prepared educationally, socially, culturally, and economically- The Juvenile Transition Center, Inc. ESTEEM program provides a detailed college, economic and personal development path for all program participants. Should the need materialize for additional information please feel free to contact me at immediately by phone (561) 742-6557, (561)306-0252 or email: chillout@bellsouth.net 4 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VIII.-PUBLIC HEARING ITEM A. Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office [8J August 2, 2005 Ju]y ]8,2005 (Noon.) 0 October 5, 2005 September 19, 2005 (Noon) 0 August 16, 2005 August 1, 2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon) 0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 October 17, 2005 (Noon) 0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005 October 31, 2005 (Noon) CJ c~}-; NATURE OF AGENDA ITEM o Administrative o Consent Agenda [8J Public Hearing o Bids o Announcement o City Manager's Report o Development Plans o New Business [8J Legal o Unfinished Business o Presentation .._-;~.... .( .",..-. _) --r: ~ ex} '~ (=) w , , --' ~:;::: mq -'1 co -1"1 '~c:) ~~~ ~ RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Public Hearing and Legal, Ordinance - First Reading. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12,2005. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-092. EXPLANATION: PROJECT: AGENT: LOCATION: Condominium Hotels in Mixed Use Districts (CDRV 05-013) Staff-initiated Mixed Use-High Intensity (MU-H) and Mixed Use-Low Intensity (MU-L) zoning districts Request to amend the Land Development Regulations, Chapter 2, Section 6.F. Mixed Use Zoning Districts to add "Hotel, Extended Stay" as a pennitted use in the Mixed Use-High Intensity (MU-H) zoning district; as a conditional use in the Mixed Use-Low Intensity (MU-L) zoning district; and to amend the definitions of "Hotel" and "Hotel, Extended Stay" to include condominium hotel units. DESCRIPTION: PROGRAM IMPACT: FISCAL IMPACT: ALTERNATIVES: Plannmg and Zonin ector City Attorney / Finance / Hmnan Resources S:\PlanningISHARED\WPISPECPROJ\ ODE REVlEw\CDRV 05-013 Condo Hotels\Agenda Item Request Condominium Hote]s in MU Dist CDRV 05- 013 8-2-05.dot S:\BULLET1N\FORMS\AGENDA ITEM REQUEST FORM.DOC 1 ORDINANCE NO. 05- 2 3 AN ORDINANCE OF THE CITY OF BOYNTON BEACH, 4 FLORIDA AMENDING LAND DEVELOPMENT 5 REGULATIONS, CHAPTER 2 "ZONING", SECTION 6.F. 6 MIXED USE ZONING DISTRICTS TO ADD "HOTEL, 7 EXTENDED STAY" AS PERMITTED AND 8 CONDITIONAL USES AND AMEND THE DEFINITIONS 9 FOR "HOTEL" AND "HOTEL, EXTENDED STAY"; 10 PROVIDING FOR CONFLICTS, SEVERABILITY, 11 CODIFICATION AND AN EFFECTIVE DATE. 12 13 WHEREAS, the Land Development Regulations of the City of Boynton Beach 14 provide for the Mixed Use-High Intensity and Mixed Use-Low Intensity zoning districts; and 15 WHEREAS, both "hotel" and "boutique hotel" are included as allowable uses in the 16 Mixed Use High zoning district; and 17 WHEREAS, definitions for both "hotel" and "boutique hotel", as well as a definition 18 for "hotel, extended stay" are included in the definition section for the Mixed Use District as 19 provided in the City's Land Development Regulations; and 20 WHEREAS, although "hotel, extended stay" is included in the definition section, 21 "hotel, extended stay" is not listed in the Schedule of Permitted, Principal, Accessory and 22 Conditional Uses (Table 6.F.l); and 23 WHEREAS, the City Commission, upon recommendation of staff, and the 24 Community Redevelopment Agency, desires to amend the Land Development Regulations of 25 the City of Boynton Beach to provide amendments regarding the Mixed Use-High Intensity 26 (MU-H) and Mixed Use-Low Intensity (MU-L) zoning categories to provide for the inclusion 27 of "hotel, extended stay" as an authorized use, and to amend the definitions of hotel and hotel, 28 extended stay within the Mixed Use District; 29 WHEREAS, the City Commission finds that the amendments contained in this 30 ordinance are in the best interest of the health safety and welfare of the residents and citizens 31 of the City of Boynton Beach. 32 NO',," THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF 33 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 34 Section 1. The foregoing whereas clause is true and correct and is now ratified and S:\CA\Ordinanccs\LDR Changes\Amdending LDR - Chapter 2.- 6.F. (Hotel extended stay),doc confirmed by the City Commission. Section 2. Chapter 2. "Zoning", Section 6.F. of the Land Development 2 3 Regulations of the City of Boynton Beach Code of Ordinances is hereby amended by adding 4 the words and figures in underlined type, and by deleting the words and figures in struck- 5 through type, as follows: 6 Chapter 2, Section 6.F. Mixed Use Zoning Districts 7 8 TABLE 6F-l 9 SCHEDULE OF PERMITTED PRINCIPAL, ACCESSORY AND CONDITIONAL USES 10 11 12 16. Definitions. The following are supplement definitions applicable only to the Mixed 13 Use Zoning Districts, and therefore take precedence over definitions in other portions of the Code in 14 case of conflict. 15 16 17 Hotel: A building or portion thereof containing twenty (20) or more guest rooms, efficiency units or 18 suites designed for the temporary lodging of transient guests rented on a daily basis and occupied Qy 19 the same occupant for less than thirty (30) consecutive days. Ancillary facilities may include 20 conference facilities, restaurants, bars, recreation facilities, ballrooms, banquet rooms and meeting 21 rooms. Access to the guest quarters shall be through an inside lobby and corridors or from an exterior 22 court which is within a secured area. The hotel rooms may be under single ownership or may be 23 owned individually, provided all rooms are under single management, which provides for central 24 reservations and maid services, and receipt and disbursement of keys and mail by the attendant at the 25 desk in the lobby or office. No hotel unit shall be converted to or used as a multifamily dwelling 26 without the prior approval of the City Commission and compliance with all applicable land 27 development regulations and the comprehensive plan. 28 29 Hotel, Boutique: A small luxury hotel containing ten (10) to twenty (20) guest rooms. Meal service 30 is usually breakfast only, but in some instances high-quality dinner and/or lunch service and room 31 service may also be provided. 32 Hotel, Extended Stay: Any all-suite hotel that provides visitors with a full kitchen and more than 33 5% of its rooms are occupied for at least thirty (30) days and no more thaFI one htmdred and eighty 34 (180) days. where no room is occupied for more than one hundred and eighty (80) days in a calendar 35 year by the same occupant. The hotel rooms may be under single ownership or may be owned 36 individually, provided all rooms are under single management, which provides for central reservations 37 and maid services, and receipt and disbursement of keys and mail by the attendant at the desk in the USE GROUPfUSE MU-L ZONE MU-H WNE Residential or Lodging Use Group Bed and Breakfast C N Boutique Hotel N C6 Hotel C p Hotel Extended Stav C p Home Occupation p p S:ICAIOrdinances\LDR ChangeslAmdending LDR - Chapter 2.- 6.F. (Hotel extended stay).doc 1 2 3 4 5 6 7 8 9 10 Section 3. Each and every other provision of the Land Development Regulations 11 not herein specifically amended, shall remain in full force and effect as originally adopted. 12 Section 4. All laws and ordinances applying to the City of Boynton Beach In 13 conflict with any provisions of this ordinance are hereby repealed. 14 Section 5. Should any section or provision of this Ordinance or any portion 15 thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not 16 affect the remainder of this Ordinance. 17 Section 6. Authority is hereby given to codify this Ordinance. 18 Section 7. This Ordinance shall become effective immediately. 19 FIRST READING this _ day of August, 2005. 20 SECOND, FINAL READING AND PASSAGE this _ day of 21 August, 2005. 22 CITY OF BOYNTON BEACH, FLORIDA 23 24 25 Mayor 26 27 28 Vice Mayor 29 30 31 Commissioner 32 33 34 Commissioner 35 36 37 Commissioner 38 ATTEST: 39 40 City Clerk S:\CA \Ordinances\LDR Changes\Amdending LDR - Chapter 2.- 6.F. (Hotel extended stay).doc DEVELOPMENT DEPARTMENT PLANNING AND ZONING DMSION MEMORANDUM NO. PZ 05-092 TO: FROM Chairman and Members Planning and Development Board Dick Hudson, AICP p(-- Senior Planner Michael W. Rump;l\ (Xl/ Director of Planning and Zoning THROUGH: DATE: May 27, 2005 SUBJECT: Condominium Hotels in Mixed Use districts CDRV 05-013 NATURE OF REOUEST Staff is proposing an amendment to the Land Development Regulations, Chapter 2, Section 6.F. Mixed Use Zoning Districts to add "Hotel, Extended Stay" as a permitted use in the Mixed Use- High Intensity (MU-H) zoning district; as a conditional use in the Mixed Use-Low Intensity (MU-L) zoning district; and to amend the definitions of "Hotel" and "Hotel, Extended Stay" to include condominium hotel units. BACKGROUND The development regulations for the Mixed Use-High Intensity/Mixed Use-Low Intensity zoning districts currently list both "Hotel" and "Boutique Hotel" as permitted uses in the MU-H district. Definitions are provided for both of these uses, as well as a definition for "Hotel, Extended Stay", although "Hotel, Extended Stay" is not listed in the "Schedule of Permitted, Principal, Accessory And Conditional Uses" (Table 6.F.l). Recent pre-application conferences with prospective developers, as well as professional conferences staff members have attended indicate that condominium hotels are becoming a major component in the hospitality market in South Ronda and in other vacation markets (see attached article, Exhibit A). Additionally, one development recently approved in the City has marketed hotel units as "Condominium Hotel units". Staff foresees additional requests for the use and therefore is proposing the code review. ANALYSIS Due to the difficulty in obtaining conventional financing for hotel projects in recent years, the "condominium hotel" or "condo hotel" has a become a popular product in the hotel industry. A condo hotel is essentially a hotel where the individual rooms are owned by separate owners, as opposed to having the entire block of rooms owned by a single hotel owner/operator. Since the individual rooms are sold to separate owners, the overall condo hotel project can be financed more like a residential condominium project, rather than a hotel, which has led to a surge in their popularity among hotel developers in recent years. Page 2 CDRV 05-013 Condominium Hotels in Mixed Use Districts From an operational and appearance standpoint, a condo hotel essentially looks and functions like any other hotel, with a management company in place to operate the facility and make provisions for such things as a central reservation system, maid service, maintenance, etc. Typically, all units are furnished the same for consistency purposes such that a hotel guest would not be able to tell from outward appearance that the rooms were owned individually. Since condo hotels are a relatively new concept that are likely to continue to grow in popularity, many local governments in South Florida are now reviSiting their land development regulations and making revisions as necessary to address the attributes of such projects and to ensure that the facilities truly operate as hotels and not residential developments. For example, since the condo hotel rooms are owned by individual owners who may choose to occupy the hotel room at some time during the year, local governments are putting maximum length of stay limitations in their code to ensure that individual owners do not take up permanent residence in the units. The State of Florida defines "transient lodgings", which includes hotels, as "lodgings rented or leased to a specific party for a period of up to six months" and permits counties to levy a Tourist Development Tax (hotel bed tax) on them. Staff opines that limiting an individual's stay to "not more than 180 days in a calendar year" will provide that assurance. Since a condo hotel would likely take the form of an "extended stay hotel," City staff is recommending that the City Commission amend the City's definition of "extended stay hotel" as described below to address the attributes of the condo hotel and place appropriate limitations and requirements on such use. In addition, staff is recommending that the City Commission amend the permitted uses table for the "Mixed Use-High" zoning district to make it clear that "extended stay hotels", which would be the likely category to accommodate a condo hotel, are permitted in that district. The development of condo hotels is likely to be in conjunction with a mixed use project, which may include residential units; staff needs to also ensure that maximum allowable densities will not be exceeded. This would only become a problem if, at some future date, there was a request to convert hotel units to multi-family dwellings. The code amendments staff is recommending are attached (Exhibit B). RECOMMENDATION It is staff's opinion that the proposed amendments to the Mixed Use zoning district regulations are the minimum necessary to achieve the desired results; therefore staff recommends that the proposed amendments be carried forward to the Community Redevelopment Agency Board for their review and comments. Exhibits S:\PLANNING\SHARED\WP\SPECPROJ\CODE REVIEW\CDRV 05-013 CONDO HOTELS\STAFF REPORT. DOC EXHIBIT A Condo Hotel Trends - A Look at the Big Picture in Vacation Home Ownership By Joel Greene ...................................--.....---.......----.-.....-.--.............-.-......-----.----.-.--.........-.........---....-............---.........-.-.-.---....---.--.........-.---...------.-.............. . . I Condo hotels are one of the hottest products in today's real estate market. New properties are [ I cropping up in different parts of the country and new buyers are entering the market daily. I i Things have been moving so quickly in terms of condo hotels, but sometimes it's worth taking a i I moment to step back and look at the big picture. I Condo Hotels In General: There is a spreading enthusiasm about the condo hotel concept. More people are recognizing its potential and therefore creating demand for more inventory. Condo Hotel Buyers: The average buyer is 35-50 years old. Buyers for Florida properties, where condo hotels are most prevalent, come from all over the U.S. On the international front, most foreign buyers interested in U.S. property are from South America and Europe. The vast majority of buyers want condo hotel units primarily as investments and are focused on the potential for appreciation with the side benefit of hassle-free ownership. They see the ability to actually use their condo hotel unit as a vacation home as important but secondary to their goal of investment diversification. Condo Hotel Market: Virtually every single property that has come on the market to date has sold out in pre-construction. Most of these properties are mega high-rise buildings with on average 200-500 units, and with some in excess of 1,000 units. The speed with which these properties sell out is often as surprising to buyers as it is to the 1 developers themselves. For example, the MGM Grand in Las Vegas, a 576-unit condo hotel, was I I expected to sell out in two years. It sold out in two months! The Platinum, a 255-unit property in I Hot Areas: South Florida continues to be an extremely popular area and one that has shown strong and steady appreciation. As already mentioned, the condo hotel trend which began in South Florida has now spread out west. Las Vegas is leading the pack with many new condo and condo hotel developments in all price ranges being built. I Growth in Florida: Looking at South Florida, it's easy to see what is happening. Miami Beach, ! I the hottest area, is all built up. There just isn't any undeveloped land. That's causing a couple of I I things to happen. Developers are heading to the northern end of Miami Beach (North Beach) and 1 "..:",i: areas still further north such as to Sunny Isles and Ft. Lauderdale. "".",;: A new trend is developers buying existing structures in Miami Beach and either upgrading them, as in the case of The Mimosa which was the former Brazil Motel, or knocking them down and . starting overt as in the case of One Bal Harbour in which a mUlti-family, high-rise building ! i (Harbour House) was demolished and a five-star condo hotel built In its place. I ! Finally, some properties are beginning to crop up inland. These condo hotels may not have 1 i oceanfront views; however, they're within a few short blocks of a beach. Because they're not on I U~e o~€l..<!!!t...!Dese prol?ertie.?...!end t.Q...~rice_c;! mo~_ecQ!l2!!l ica.Uy..:.....__............_......_._......._____.____......._.........J ....._...............,.................................._...._.....................................................................................................................................n..............................................................................................................-...........................-........ , . : ~ Properties: The most popular properties continue to be those with a franchise name, one that brings a reputation for four- to five-star quality or a name that is already well-known. A prime example is Canyon Ranch Living in Miami Beach. People recognize the Canyon Ranch name and feel confident that this property will be of the same five-star caliber as its Arizona counterpart. Of: course, it doesn't hurt that this property will have a 60,000 sq. ft. rooftop spa and fitness center. I The Selling Process: A lot of properties take reservations of more than half the total project long before they've even prepared their purchase contracts. This means that many of the best units are reserved months before any money changes hands and often before even the first spade of ground has been turned over. Those early investors are seeing some amazing appreciation on their investments. Prices: Like anything for which there is more demand than supply, prices keep going up, up, up. ~ Developers often raise their prices 3-5 times from when they start selling until they sell out. . Developers are no longer discounting prices at the beginning of the selling process when they are l anxious to get a few sales under their belt. This used to be common practice; it is no more ! because demand is so great. There are sometimes, however, some price adjustments made at the very tail end of the sellout phase when developers want to close out their property and move on to their next project. Generally speaking, with regard to price, the best time to get in is usually early on in the first pre-construction offering. Quality: Most condo hotels being built are of four- to five-star quality. The reason is two-fold: 1) I".' There is demand for the types of services provided by four- and five-star properties, and 2) Oceanfront land is so costly that it makes more sense for the developer to put in a luxury property with units that he can sell at a premium price rather than lower priced units. Financing: It's getting a little easier to get condo hotel financing. There was a time when most banks and mortgage companies weren't even familiar with the term condo hotels. They now know it and also recognize the viability of these properties. They are more accommodating in expediting these loans. Contracts: Contracts that allow assignability have become rare. In the past, at some properties buyers could place a deposit on a unit in the pre-construction phase and then flip their unit prior to when they had to close. Developers now want to be sure that they don't compete to sell their last few units with investors who purchased early at pre-construction prices and are now re- selling them at below the developer's current prices. Resales: Some condo hotel unit resales come on the market. Of course, this is to be expected. Some of the earliest buyers now want to move on to something or somewhere else. However, the resale market is still relatively small, and it's hard to find a bargain. : Advice to New Buyers: How can buyers choose a condo hotel unit that will be a good I investment? It's best if they can work with a real estate broker who specializes in condo hotels ! and can make them aware of all products on the market. Aside from that, they should look for . L..t~..~.!2.ttQ.YYl.~.g.~J~.!!l..~.~.t~.:............................................................................._..............................................._._..._..-...........................................-.......................................................................1 r--Locaiion":-oReaT"esta"te-olsma-j'j'O"abo"u"t"lOcatiO"i1:'-aeachfront"propertioesooTn-S-outh-;=i"orida-havedone-"O--- i ! exceptionally well in recent years. Their appreciation has been significant. If you prefer a I i property that is not on the ocean, it's a good idea to select one in an area where you can expect ! ! to have business driven to your property, such as near a major convention center or in ! I Downtown Miami near the finanoal district. I ~ Franchise: It's always safest to go with a major company, well-known internationally. Four I 1 Seasons, Hilton, Starwood, Rosewood, Setai and Trump are excellent examples. Ask yourself, i 1 would you likely stay in a Holiday Inn for $69 or the independent hotel across the street for $627 i 1 Many investors or hotel guests will pay a little more for the comfort level they get with a well- i o:::::::::o:!' :n:::e:~:::::::~:n;:::are the management companies and their rental sharing :o::::::.::::i: program. You will likely feel more comfortable investing your money in a condo hotel with an experienced, top-notch management company vs. an independent operator. Also, it's worth noting that an established management company does worldwide marketing and likely has a i state-of-the-art reservation system that will help ensure your unit Is rented as much as possible. I L~o!!l.!;J~_~C?_~rf~o~_'}!.ttl2LL EZ!Do~~r:!o!fle~.:ofQ.!BLmo_"'_'_'_'___"O_."m_o_._..__.----~r:!l.<;:1~_0~~"!?!B!!.t~~~_~!!9 ust 9..l..lQ_04....J EXHIBIT B Chapter 2, Section 6.F. Mixed Use Zoning Districts TABLE 6F-l SCHEDULE OF PERMITTED PRINCIPAL, ACCESSORY AND CONDITIONAL USES USE GROUPIUSE MU-L ZONE MU-H ZONE Residential or Lodging Use Group Bed and Breakfast C N Boutique Hotel N Co Hotel C p Hotel. Extended Stav C p Home Occupation p p 16. Definitions. The following are supplement defmitions applicable only to the Mixed Use Zoning Districts, and therefore take precedence over definitions in other portions of the Code in case of conflict. Hotel: A building or portion thereof containing twenty (20) or more guest rooms, efficiency units or suites designed for the temporary lodging of transient guests rented on a daily basis and occupied by the same occupant for less than thirty (30) consecutive days. Ancillary facilities may include conference facilities, restaurants, bars, recreation facilities, ballrooms, banquet rooms and meeting rooms. Access to the guest quarters shall be through an inside lobby and corridors or from an exterior court which is within a secured area. The hotel rooms may be under single ownership or may be owned individually. provided all rooms are under single management. which provides for central reservations and maid services. and receipt and disbursement of keys and mail by the attendant at the desk in the lobby or office. No hotel unit shall be converted to or used as a multifamily dwelling without the prior approval of the City Commission and compliance with all applicable land development regulations and the comprehensive plan. Hotel, Boutique: A small luxury hotel containing ten (10) to twenty (20) guest rooms. Meal service is usually breakfast only, but in some instances high-quality dinner and/or lunch service and room service may also be provided. Hotel, Extended Stay: Any all-suite hotel that provides visitors with a full kitchen and more than 5% of its rooms are oeeupied for at least thirty (30) days ane no more than oae lNmaree ane eighty (180) days. where no room is occupied for more than one hundred and eis.zhty (180) days in a calendar year by the same occupant. The hotel rooms may be under single ownership or may be owned individually. provided all rooms are under single management. which provides for central reservations and maid services. and receipt and disbursement of keys and mail by the attendant at the desk in the lobby or office. Compliance with the length of stay limitation in this paragraph shall be certified by affidavit of the licensee at the time of issuance and renewal of the applicable City occupational license. Management shall maintain a guest register for each twelve ~2) month period following issuance and renewal of the occupational license that shall be available for ins ection by the City. upOn written request. for a minimum of twelve (12) months following the close of the prior twelve month period. No extended stay hotel unit shall be converted to or used as a multifamily dwelling without the prior approval of the City Commission and compliance with all applicable land development relZUlations and the comprehensive plan. Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 Chair Heavilin opened the floor for the public, and closed it when no one wished to speak. Motion Ms. Horenburger moved approval of NWSP 05-022, Neelam Business Center, request for Site Plan approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use Low (MU-L) zoning district. Vice Chair Tillman seconded the motion that passed 5-0. THE MEETING RECESSED FROM 8:06 P.M. TO 8:12 P.M. D. Condominium Hotels in Mixed Use Districts Code Review 1. Project: Condominium Hotels in Mixed Use Districts (CDRV 05-013) Staff-initiated Mixed-Use High Intensity (MU-H) and Mixed Use Low Intensity zoning districts Request to amend the Land Development Regulations, Chapter 2, Section 6.F Mixed Use Zoning Districts to add "Hotel, Extended Stay" as a permitted use in the Mixed Use-High Intensity (MU- H) zoning district; as a conditional use in the Mixed Use-Low Intensity (MU-L) zoning district; and to amend the definitions of "Hotel" and "Hotel, Extended Stay" to include condominium hotel units. Agent: Location: Description: Dick Hudson, Senior Planner, reviewed this request, stating that the "condo hotel" had become a popular product in the hotel industry since the project could be financed more like a residential condominium project. Many local governments are revisiting their LDRs and making revisions to address this type of project and insure that the facilities truly operate as hotels and not residential developments. An owner would be limited to a six-month stay per year to assure that individuals do not take up permanent residence in the units. The condo hotels would probably take the form of an "extended stay hotel," so City staff is recommending that the City Commission amend the permitted uses table for the "Mixed Use-High" zoning district to make it clear that "extended stay hotels," which would be the likely category to accommodate a condo hotel, are permitted in that district. Staff recommended approval of this item. Ms. Horenburger inquired whether the County's Bed Tax would come into play for stays shorter than six months. Mr. Hudson responded that it would be subject to the Bed Tax because it would be considered transient lodging. Ms. Horenburger asked the difference between the condo hotel and the condo with mostly seasonal residents. Mr. Hudson said that a condo was considered a residence and the residential parking regulations would apply. A hotel was considered a commercial use. The parking requirements for condos and hotel condos were very similar (one bedroom condos call for 1.33 per unit and hotel condos call for 1.25 per unit). Mr. DeMarco asked if the condo laws would apply to the hotel condos. Mr. Hudson believed it did. Mr. DeMarco suggested the City contact someone who could give an authoritative answer on this. 12 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 Ms. Horenburger declared the law only applies to the type of sale. Chair Heavilin's understanding from the project that was already taking reservations for their condo hotel units is they would be under the Condominium Declarations statute. Chair Heavilin opened the floor to the public, and closed it when no one came forward. Chair Heavilin commented there was a growing trend across the country for condo hotel units. Motion Vice Chair Tillman moved to approve CDRV 05-013, request to amend the Land Development Regulations, Chapter 2, Section 6.F Mixed Use Zoning Districts to add "Hotel, Extended Stay" as a permitted use in the Mixed Use-High Intensity (MU-H) zoning district; as a conditional use in the Mixed Use-Low Intensity (MU-L) zoning district; and to amend the definitions of "Hotel" and "Hotel, Extended Stay" to include condominium hotel units. Mr. DeMarco seconded the motion that passed 5-0. VII. Pulled Consent Agenda Items A. Approval of Minutes from June 9. 2005 Meetinq Attorney Spillias stated that on page 19 under Future Agenda Items, in the second paragraph, sixth line, "he had been the attorney for" should be replaced with "his firm had represented." Also, on page 20 in the second paragraph, it should properly read: "In the middle of public hearing, staff or the applicant should not be called to answer questions, Attorney Spillias said, so anyone from the public does not raise the question of his or her time being taken up with questions." On the last page, the last motion should read that it passed 5-0, because Ms. Horenburger left before the motion. Also, the fact that she left should be placed before the motion. Motion Ms. Horenburger moved to approve the minutes of the June 9, 2005 meeting as amended. Vice Chair Tillman seconded the motion that passed 5-0. D. Consideration of Prooertv Exchange Agreement Between St. Paul AME Church and the CRA Attorney Spillias commented that on page one of the lease agreement, paragraph 1. TERM, the ending date should be 2006 instead of 2005. Motion Vice Chair Tillman moved approval of Consent Agenda Item D. as amended. Mr. DeMarco seconded the motion that passed 5-0. J. Facade Grant Reimbursement - Bovnton/Delrav Academy - $15.000.00 Vice Chair Tillman was concerned the building on which a Fa93de Grant was requested was in limbo as to whether it would be an educational institution or not. He was not comfortable with issuing a grant to an entity if the use/name changed. The School District had not made a decision about this yet. 13 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VIII.-PUBLIC HEARING ITEM B. Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office [2] August 2, 2005 July 18,2005 (Noon.) 0 October 5, 2005 September 19,2005 (Noon) 0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005 October 3,2005 (Noon) 0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 October 17,2005 (Noon) 0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005 October 31, 2005 (Noon) -~-:; 0 Administrative 0 Development Plans NATURE OF 0 Consent Agenda 0 New Business AGENDA ITEM [2] Public Hearing [2] Legal 0 Bids 0 Unfmished Business 0 Announcement 0 Presentation 0 City Manager's Report ....) --i ~:) 1 _~:{-< 0,) ...-...."'" "; ---i l..,-,,' -_:.z \) -.,,0:; -....- 01 (~:> , .j() . -~" .....:.-. RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Public Hearing and Legal, Ordinance - First Reading. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12,2005. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-115. EXPLANATION: PROJECT: AGENT: OWNER: LOCATION: DESCRIPTION: Heritage Club at Boynton Beach (LUAR OS-OOS) Michael Weiner, Esquire, Weiner & Aronson, P.A. Thirty Six Hundred Holdings, LLC Northwest comer of the intersection of Federal Highway and Gulfstream Boulevard Request to amend the Comprehensive Plan Future Land Use Map from Local Retail Commercial to Special High Density Residential; and Request to rezone from C-3 Community Commercial to PUD Planned Unit Development. Proposed Use: Mixed use development containing 19,500 sq. ft. of commercial development (office, retail, restaurant) and 166 multi-family residential units. PROGRAM IMPACT: FISCAL IMPACT: ALTERNATIVES: Developm ent Director lc)~ Planning and g DIrector CIty Attorney / Finance / Human Resources S:\Planning\SHARED\WP\PROJECTSlHeritage Club @ Boynton Beach\LUAR 05-005\Agenda Item Request Heritage Club @ BB LUAR 05-005 8-2- 05.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC 1 ORDINANCE NO. 05- 2 3 AN ORDINANCE OF THE CITY OF BOYNTON 4 BEACH, FLORIDA, AMENDING ORDINANCE 5 89-38 BY AMENDING THE FUTURE LAND USE 6 ELEMENT OF THE COMPREHENSIVE PLAN 7 FOR A PARCEL OWNED BY THIRTY SIX 8 HUNDRED HOLDINGS, LLC, AND LOCATED 9 ON THE NORTHWEST CORNER OF THE 10 INTERSECTION OF FEDERAL HIGHWAY AND 11 GULFSTREAM BOULEVARD; CHANGING THE 12 LAND USE DESIGNATION FROM LOCAL 13 RET AlL COMMERCIAL (LRC) TO SPECIAL 14 HIGH DENSITY RESIDENTIAL (SHDR); 15 PROVIDING FOR CONFLICTS, SEVERABILITY, 16 AND AN EFFECTIVE DATE. 17 18 WHEREAS, the City Commission ofthe City of Boynton Beach, Florida has 19 adopted a Comprehensive Future Land Use Plan and as part of said Plan a Future Land 20 Use Element pursuant to Ordinance No. 89-38 and in accordance with the Local 21 Government Comprehensive Planning Act; and 22 WHEREAS, the procedure for amendment of a Future Land Use Element of a 23 Comprehensive Plan as set forth in Chapter 163, Florida Statutes, has been followed; 24 and 25 WHEREAS, after two (2) public hearings the City Commission acting in its 26 dual capacity as Local Planning Agency and City Commission finds that the 27 amendment hereinafter set forth is consistent with the City's adopted Comprehensive 28 Plan and deems it in the best interest of the inhabitants of said City to amend the 29 aforesaid Element of the Comprehensive Plan as provided. 30 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF 31 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: S:\CA\Ordinances\planning\Land Use\Heritage Club.doc 1 Section l: The foregoing WHEREAS clauses are true and correct and 2 incorporated herein by this reference. Section 2: Ordinance No. 89-38 of the City is hereby amended to reflect the 3 4 following: 5 That the Future Land Use of the following described land located on the 6 Northwest comer of the intersection of Federal Highway and Gulfstream Boulevard in 7 Boynton Beach, Florida shall be changed from Local Retail Commercial (LRC) and 8 shall now be designated as Special High Density Residential (SHDR): 9 See legal description attached hereto. 10 11 12 Subject to easements, restrictions, reservation and rights of way of record. 13 14 15 Section 3: That any maps adopted in accordance with the Future Land Use Element 16 ofthe Future Land Use Plan shall be amended accordingly. 17 Section 4: All ordinances or parts of ordinances in conflict herewith are hereby 18 repealed. 19 Section 5: Should any section or provision of this Ordinance or any portion thereof 20 be declared by a court of competent jurisdiction to be invalid, such decision shall not affect 21 the remainder of this Ordinance. 22 Section 6: This Ordinance shall take effect on adoption, subject to the review, 23 challenge, or appeal provisions provided by the Florida Local Government Comprehensive 24 Planning and Land Development Regulation Act. No party shall be vested of any right by 25 virtue of the adoption of this Ordinance until all statutory required review is complete and 26 all legal challenges, including appeals, are exhausted. In the event that the effective date is S:\CA\Ordinances\Planning\Land Use\Heritage Club.doc 1 established by state law or special act, the provisions of state act shall control. 2 FIRST READING this _ day of ,2005. 3 SECOND, FINAL READING and PASSAGE this ___ day of 4 2005. 5 CITY OF BOYNTON BEACH, FLORIDA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ATTEST: 22 23 24 City Clerk 25 26 (Corporate Seal) 27 Mayor Vice Mayor Commissioner Commissioner Commissioner S:\CA\Ordinances\Planning\Land Use\Heritage club.doc LEGAL DESCRIPTION THAT CERTAIN PLACE, PARCEL OR TRACT OF LAND SITUATE, LYING AND BEING IN THE CITY OF BOYNTON BEACH, COUNTY OF PALM BEACH AND STATE OF FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: LAND IN SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THAT PART OF THE SOUTH HALF(SI/2) OF THE SOUTHWEST QUARTER (SW1I4) OF THE NORTHEAST QUARTER (NE1I4) OF SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA,LYING EAST OF THE EAST RIGHT-OF-WAY LINE OF OLD DIXIE HIGHWAY, AS NOW LAID OUT AND IN USE, WEST OF THE WEST RIGHT-OF- WAY LINE OF STATE ROAD 5 (US NO.1), AS DESCRIBED IN OFFICIAL RECORDS BOOK 160, PAGE 581, AND NORTH OF THE RIGHT-OF- WAY OF GULFSTREAM BOULEV ARD,AS DESCRIBED IN OFFICIAL RECORDS BOOK 944, PAGE 117, LESS THE FOLLOWING DESCRIBED TRACTS: TRACT A: COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF THE FLORIDA EAST COAST RAIL WAY WITH THE EAST-WEST QUARTER SECTION LINE OF SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA; THENCE NORTHERLY ALONG SAID EASTERLY RIGHT-OF- WAY LINE, A DISTANCE OF 370.00 FEET; THENCE EASTERLY AT RIGHT ANGLES WITH THE SAID EASTERLY RIGHT- OF- WAY LINE, A DISTANCE OF 30.00 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE EASTERL Y ALONG THE SAME COURSE, A DISTANCE OF 60.00 FEET; THENCE NORTHERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE, A DISTANCE OF 30.00 FEET;THENCE WESTERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE, A DISTANCE OF 60.00 FEET; THENCE SOUTHERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE,A DISTANCE OF 30.00 FEET TO THE POINT OF BEGINNING. TRACTB COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF THE FLORIDA EAST COAST RAIL WAY WITH THE EAST-WEST QUARTER SECTION LINE OF SECTION 4,TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA; THENCE EASTERLY ALONG SAID EAST-WEST QUARTER SECTION LINE, A DISTANCE OF 80.90 FEET; THENCE NORTHERLY PARALLEL WITH THE SAID EASTERLY RIGHT-OF- WAY LINE OF THE FLORIDA EAST COAST RAIL WAY, A DISTANCE OF 62.67 FEET TO AN INTERSECTION WITH THE NORTHERLY RIGHT-OF-WAY LINE, OF GULF STREAM BOULEVARD, THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF- WAY LINE,A T)IST ANCE OF 12.00 FEET TO THE POINT OF BEGINNING, THENCE CONTINUE EASTERLY .LONG THE NORTHERLY RIGHT-OF-WAY LINE OF GULFSTREAM BOULEVARD, A DIST ANCE OF 40.0 FEET; THENCE NORTHERLY AT RIGHT ANGLES, A DISTANCE OF 40.0 FEET,THENCE WESTERLY AT RIGHT ANGLES, A DISTANCE OF 40.0 FEET, THENCE SOUTHERLY AT RIGHT ANGLES, A DISTANCE OF 40.00 FEET TO THE POINT OF BEGINNING. TRACT C: COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF THE FLORIDA EAST COAST RAIL WAY WITH THE EAST -WEST QUARTER SECTION LINE OF SECTION 4,TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA; THENCE EASTERLY ALONG SAID EAST-WEST QUARTER SECTION LINE, A DISTANCE OF 80.90 FEET; THENCE NORTHERLY PARALLEL WITH THE SAID EASTERLY RIGHT-OF- WAY OF THE FLORIDA EAST COAST RAILWAY, A DISTANCE OF 62.67 FEET TO AN INTERSECTION WITH THE NORTHERLY RIGHT-OF-WAY LINE, OF GULFSTREAM BOULEVARD, THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF-WAY LINE, A DISTANCE OF 70.55 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 1950.08 FEET AND A CENTRAL ANGLE OF 5 DEGREES 59 MINUTES 38 SECONDS; THENCE EASTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 204 FEET; THENCE CONTINUE EASTERLY ALONG SAID RIGHT- OF- WAY LINE, TANGENT TO SAID CURVE,A DISTANCE OF 68.82 FEET TO THE POINT OF BEGINNING OF THE PARCEL TO BE HEREIN DESCRIBED; THENCE CONTINUE EASTERLY ALONG THE SAME COURSE, A DISTANCE OF 217.96 FEET TO THE POINT OF CURV ATURE OF A CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 20 FEET AND A CENTRAL ANGLE OF 72 DEGREES 27 MINUTES 50 SECONDS; THENCE EASTERLY AND NORTHERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 25.29 FEET TO A POINT IN THE WESTERLY RIGHT-OF-WAY LINE OF U.S. HIGHWAY NO.1 (S.R. NO.5); THENCE NORTHERLY ALONG SAID RlGHT-OF-WAY LINE TANGENT TO SAID CURVE, A DISTANCE OF 180.03 FEET; THENCE WESTERLY MAKING AN ANGLE WITH THE PRECEDING COURSE OF 107 DEGREES 33 MINUTES 34 SECONDS, MEASURED FROM NORTH TO WEST, A DISTANCE OF 263.45 FEET; THENCE SOUTHERLY MAKING AN ANGLE WITH THE THE PRECEDING COURSE OF 98 DEGREES 33 MINUTES 12 SECONDS MEASURED FROM EAST TO SOUTH, A DISTANCE OF 187.60 FEET TO THE POINT OF BEGINNING AFOREDESCRIBED. TRACT D: THAT PORTION OF THE SOUTH ONE HALF(SI/2) OF THE SOUTHWEST ONE QUARTER (SWl/4) OF THE NORTHEAST ONE QUARTER (NEl/4) OF SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, LYING WEST OF THE WESTERLY RlGHT-OF-WA Y LINE OF STATE ROAD NO.5 ( U.S. HIGHWAY NO.1) AS DESCRIBED IN OFFICIAL RECORDS BOOK 160,PAGE 581, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, LYING EAST OF A LINE PARALLEL TO SAID RlGHT-OF-WAY LINE AND FORTY FEET WEST THEREOF AND LYING NORTH OF A LINE NINETEEN (19) FEET SOUTH OF AND PARALLEL TO THE NORTH BOUNDARY OF SAID SOUTH ONE HALF (S1/2) OF THE SOUTHWEST ONE QUARTER (SWl/4) OF THE NORTHEAST ONE QUARTER (NEl/4) OF SAID SECTION 4. 1 ORDINANCE NO. 05- 2 3 AN ORDINANCE OF THE CITY OF BOYNTON 4 BEACH, FLORIDA, REGARDING THE 5 APPLICATION OF NEW CENTURY COMPANIES, 6 LLC AND THIRTY SIX HUNDRED HOLDINGS, 7 LLC, AMENDING ORDINANCE 02-013 TO REZONE 8 A PARCEL OF LAND LOCA TED ON THE 9 NORTHWEST CORNER OF THE INTERSECTION 10 OF FEDERAL HIGHWAY AND GULFSTREAM 11 BOULEVARD, BOYNTON BEACH, FLORIDA, AS 12 MORE FULLY DESCRIBED HEREIN, FROM 13 COMMUNITY COMMERCIAL (C-3) TO PLANNED 14 UNIT DEVELOPMENT (PUD); PROVIDING FOR 15 CONFLICTS, SEVERABILITY, AND AN 16 EFFECTIVE DATE. 17 18 WHEREAS, the City Commission of the City of Boynton Beach, Florida has adopted 19 Ordinance No. 02-013, in which a Revised Zoning Map was adopted for said City; and 20 WHEREAS, Thirty Six Hundred Holdings, LLC, owner of the property located on the 21 Northwest comer of the intersection of Federal Highway and Gulfstream Boulevard in 22 Boynton Beach, Florida, as more particularly described herein, has filed a Petition, through its 23 agent Weiner & Aronson, P.A., pursuant to Section 9 of Appendix A-Zoning, of the Code of 24 Ordinances, City of Boynton Beach, Florida, for the purpose of rezoning a parcel of land, said 25 land being more particularly described hereinafter, from Community Commercial (C-3) to 26 Planned Unit Development (PUD); and 27 WHEREAS, the City Commission conducted a public hearing and heard testimony 28 and received evidence which the Commission finds supports a rezoning for the property 29 hereinafter described; and 30 WHEREAS, the City Commission finds that the proposed rezoning is consistent with 31 an amendment to the Land Use which was contemporaneously considered and approved at the S:\CA \Ordinances\Planning\Rezoning\Rezoning - Heritage Club.doc 1 public hearing heretofore referenced; and 2 WHEREAS, the City Commission deems it in the best interests of the inhabitants of 3 said City to amend the aforesaid Revised Zoning Map as hereinafter set forth. 4 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF 5 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 6 Section 1. The foregoing Whereas clauses are true and correct and incorporated 7 herein by this reference. 8 Section 2. The following described land, Northwest comer of the intersection of 9 Federal Highway and Gulfstream Boulevard in the City of Boynton Beach, Florida, as set forth 10 as fol1ows: 11 See legal description attached hereto. 12 13 14 be and the same is hereby rezoned from Community Commercial (C-3) to Planned Unit 15 Development (PUD). A location map is attached hereto as Exhibit "A" and made a part of this 16 Ordinance by reference. 17 Section 3. That the aforesaid Revised Zoning Map of the City sha1l be amended 18 accordingly. 19 Section 4. All ordinances or parts of ordinances In conflict herewith are hereby 20 repealed. 21 Section 5. Should any section or provision of this Ordinance or any portion thereof be 22 declared by a court of competent jurisdiction to be invalid, such decision shall not affect the 23 remainder of this Ordinance. 24 Section 6. This ordinance shall become effective immediately upon passage. S:\CA \Ordinances\PJanning\Rezoning\Rezoning - Heritage Club.doc 1 FIRST READING this _ day of ,2005. 2 SECOND, FINAL READING and PASSAGE this _ day of ,2005. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 ATTEST: 19 20 21 City Clerk 22 23 (Corporate Seal) CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner S:\CA \OrdinanceslPlanning\Rezoning\Rezoning - Heritage Club. doc LEGAL DESCRIPTION THAT CERTAIN PLACE, PARCEL OR TRACT OF LAND SITUATE, LYING AND BEING IN THE CITY OF BOYNTON BEACH, COUNTY OF PALM BEACH AND STATE OF FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: LAND IN SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THAT PART OF THE SOUTH HALF(S1I2) OF THE SOUTHWEST QUARTER (SW1/4) OF THE NORTHEAST QUARTER (NE1/4) OF SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA,L YING EAST OF THE EAST RIGHT -OF- WAY LINE OF OLD DIXIE HIGHWAY, AS NOW LAID OUT AND IN USE, WEST OF THE WEST RIGHT-OF- WAY LINE OF STATE ROAD 5 (US NO.1), AS DESCRIBED IN OFFICIAL RECORDS BOOK 160, PAGE 581, AND NORTH OF THE RIGHT-OF-WAY OF GULF STREAM BOULEVARD,AS DESCRIBED IN OFFICIAL RECORDS BOOK 944, PAGE 117, LESS THE FOLLOWING DESCRIBED TRACTS: TRACT A: COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT -OF - WAY LINE OF THE FLORIDA EAST COAST RAILWAY WITH THE EAST-WEST QUARTER SECTION LINE OF SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA; THENCE NORTHERL Y ALONG SAID EASTERLY RIGHT -OF- WAY LINE, A DISTANCE OF 370.00 FEET; THENCE EASTERLY AT RIGHT ANGLES WITH THE SAID EASTERLY RlGHT- OF-WAY LINE, A DISTANCE OF 30.00 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE EASTERLY ALONG THE SAME COURSE, A DISTANCE OF 60.00 FEET; THENCE NORTHERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE, A DISTANCE OF 30.00 FEET;THENCE WESTERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE, A DISTANCE OF 60.00 FEET; THENCE SOUTHERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE,A DISTANCE OF 30.00 FEET TO THE POINT OF BEGINNING. TRACT B COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF- WAY LINE OF THE FLORIDA EAST COAST RAILWAY WITH THE EAST-WEST QUARTER SECTION LINE OF SECTION 4,TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA; THENCE EASTERLY ALONG SAID EAST-WEST QUARTER SECTION LINE, A DISTANCE OF 80.90 FEET; THENCE NORTHERLY PARALLEL WITH THE SAID EASTERLY RIGHT-OF- WAY LINE OF THE FLORIDA EAST COAST RAILWAY, A DISTANCE OF 62.67 FEET TO AN INTERSECTION WITH THE NORTHERLY RIGHT-OF-WAY LINE, OF GULFSTREAM BOULEVARD, THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF-WAY LINE,A DISTANCE OF 12.00 FEET TO THE POINT OF BEGINNING, THENCE CONTINUE EASTERLY ALONG THE NORTHERLY RIGHT-OF-WAY LINE OF GULF STREAM BOULEVARD, A DISTANCE OF 40.0 FEET; THENCE NORTHERLY AT RIGHT ANGLES, A DISTANCE OF 40.0 FEET,THENCE WESTERLY AT RIGHT ANGLES, A DISTANCE OF 40.0 FEET, THENCE SOUTHERLY AT RIGHT ANGLES, A DISTANCE OF 40.00 FEET TO THE POINT OF BEGINNING. TRACT C: COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF THE FLORIDA EAST COAST RAILWAY WITH THE EAST-WEST QUARTER SECTION LINE OF SECTION 4,TOWNSHlP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA; THENCE EASTERLY ALONG SAID EAST-WEST QUARTER SECTION LINE, A DISTANCE OF 80.90 FEET; THENCE NORTHERL Y PARALLEL WITH THE SAID EASTERLY RIGHT-OF- WAY OF THE FLORIDA EAST COAST RAIL WAY, A DISTANCE OF 62.67 FEET TO AN INTERSECTION WITH THE NORTHERLY RIGHT -OF- WAY LINE, OF GULFSTREAM BOULEVARD, THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF-WAY LINE, A DISTANCE OF 70.55 FEET TO THE POINT OF CURVATURE OF A CURVE CONCA VE TO THE SOUTH HA VING A RADIUS OF 1950.08 FEET AND A CENTRAL ANGLE OF 5 DEGREES 59 MINUTES 38 SECONDS; THENCE EASTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 204 FEET; THENCE CONTINUE EASTERLY ALONG SAID RIGHT- OF- WAY LINE, TANGENT TO SAID CURVE,A DISTANCE OF 68.82 FEET TO THE POINT OF BEGINNING OF THE PARCEL TO BE HEREIN DESCRIBED; THENCE CONTINUE EASTERLY ALONG THE SAME COURSE, A DISTANCE OF 217.96 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 20 FEET AND A CENTRAL ANGLE OF 72 DEGREES 27 MINUTES 50 SECONDS; THENCE EASTERLY AND NORTHERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 25.29 FEET TO A POINT IN THE WESTERLY RIGHT -OF- WAY LINE OF U.S. HIGHWAY NO.1 (S.R. NO.5); THENCE NORTHERLY ALONG SAID RIGHT-OF-WAY LINE TANGENT TO SAID CURVE, A DISTANCE OF 180.03 FEET; THENCE WESTERLY MAKING AN ANGLE WITH THE PRECEDING COURSE OF 107 DEGREES 33 MINUTES 34 SECONDS, MEASURED FROM NORTH TO WEST, A DISTANCE OF 263.45 FEET; THENCE SOUTHERLY MAKING AN ANGLE WITH THE THE PRECEDING COURSE OF 98 DEGREES 33 MINUTES 12 SECONDS MEASURED FROM EAST TO SOUTH, A DISTANCE OF 187.60 FEET TO THE POINT OF BEGINNING AFOREDESCRIBED. TRACT D: THAT PORTION OF THE SOUTH ONE HALF(Sl/2) OF THE SOUTHWEST ONE QUARTER (SW1/4) OF THE NORTHEAST ONE QUARTER (NEl/4) OF SECTION 4, TOWNSHlP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, LYING WEST OF THE WESTERLY RIGHT-OF-WAY LINE OF STATE ROAD NO.5 (U.S. HIGHWAY NO.1) AS DESCRIBED IN OFFICIAL RECORDS BOOK 160'p AGE 581, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, LYING EAST OF A LINE PARALLEL TO SAID RIGHT-OF-WAY LINE AND FORTY FEET WEST THEREOF AND LYING NORTH OF A LINE NINETEEN (19) FEET SOUTH OF AND PARALLEL TO THE NORTH BOUNDARY OF SAID SOUTH ONE HALF (S1I2) OF THE SOUTHWEST ONE QUARTER (SW1/4) OF THE NORTHEAST ONE 1UARTER (NE1I4) OF SAID SECTION 4. TO: FROM: THROUGH: DATE: PROJECT NAME/NUMBER: REQUEST: DEVELOPMENT DEPARTMENT PLANNING & ZONING DIVISION MEMORANDUM NO. PZ 05-115 Chair and Members Community Redevelopment Agency Board and Mayor and City CO~s~ Dick Hudson, AICPIJf Senior Planner Michael W. Rum~~ Director of Planning and Zoning June 27, 2005 Heritage Club @ Boynton Beach LUAR 05-005 Amend the Future Land Use designation from Local Retail Commercial to Special High Density Residential and rezone the property from C-3 Community Commercial to PUD Planned Unit Development Property Owner: Applicant! Agent: Location: Parcel Size: Existing Land Use: Existing Zoning: Proposed Land Use: Proposed Zoning: Proposed Use: PROJECT DESCRIPTION Thirty Six Hundred Holdings, LLC New Century Companies, LLC and Thirty Six Hundred Holdings, LLC / Weiner & Aronson, P .A. Northwest corner of the intersection of Federal Highway and Gulfstream Boulevard (Exhibit "A") :t8.302 acres Local Retail Commercial C-3 Community Commercial Special High Density Residential PUD Planned Unit Development Mixed use project containing 19,538 sq. ft. of commercial (office, retail and restaurant) and 166 multi-family residential units Page 2 File Number: LUAR 05-005 Heritage Club @ Boynton Beach Adjacent Uses: North: Developed property (self-service storage) designated Local Retail Commercial and zoned C-3 Community Commercial South: Developed outparcel (adult entertainment) designated Local Retail Commercial and zoned C-3 Community Commercial, then the right-of-way of Gu/fstream Boulevard, then developed commercial (fast-food and office building) designated Local Retail Commercial and zoned C-3 Community Commercial East: Right-of-way of Federal Highway then undeveloped property in the Town of Gu/fstream designated Recreation and zoned OR Outdoor Recreation West: Rights-of-way of Old Dixie Highway and the Florida East Coast Railroad, then vacant property in Palm Beach County designated MR-5 (5 dujac) and zoned RS-Single-family Residential EXECUTIVE SUMMARY Staff recommends approval of the requested land use amendment and rezoning for the following reasons: 1. The proposed land use amendment and rezoning are consistent with applicable Comprehensive Plan policies; as well as meeting the review criteria, required by the Land Development Regulations for land use amendments and rezonings; 2. The project will replace an antiquated and declining strip commercial center with a mixed-use project that will be both an aesthetic and fiscal improvement at the City's southern "gateway"; 3. The project's location on Federal Highway supports the "Eastward Ho" initiative, which emphasizes redevelopment of the coastal areas where infrastructure is in place, as opposed to encouraging development in patterns of sprawl to the west; and, 4. The project proposes a sizeable number of residential units in a variety of sizes and styles, with a commercial portion designed to provide a year-round customer and employment base, which supports the revitalization of the downtown. PROJECT ANALYSIS The parcels, which are the subject of this land use amendment, total :t8.302 acres. Because of the size of the property under consideration, the Florida Department of Community Affairs classifies this amendment as a "small scale" amendment. A "small-scale" amendment is adopted prior to forwarding to the Rorida Department of Community Affairs and is not reviewed for compliance with the state, regional and local comprehensive plans prior to adoption. Page 3 File Number: LUAR 05-005 Heritage Club @ Boynton Beach MASTER PLAN/SITE PLAN PUD regulations require the concurrent approval of a project master plan with the rezoning. In this case, the Site Plan is to serve as the master plan. The Site plan will be discussed in detail during the Site Plan approval process; however, a brief overview is presented here. The proposed site plan divides the property into two distinct areas, both in function and in architectural design. The commercial uses are placed on the ground floors of two four-story structures along the Federal Highway frontage and include 9,494 square feet of retail space, 6,544 square feet of office space and a restaurant containing 3,500 square feet of space. Condominium residential uses occupy the upper floors. To the west of the mixed use building on the north is a residential building, also containing 4 stories. This building and the mixed use building fronting on Federal Highway contain a total of 84 residential units. The south mixed use building has 12 residential units on the upper floors. A five-unit townhouse structure, three stories in height, is west of the south mixed use building. The two mixed use structures are separated by a "main street" that forms an entry into the property from Federal Highway and connects with the townhouse uses on the western portion of the site. The north buildings enclose a 4-level parking structure, two outdoor recreation areas and a one-story clubhouse/activity area. The south commercial building and the adjacent townhouses enclose a 2-level parking structure. Broad sidewalks and landscaped plazas along Federal Highway create pedestrian-friendly areas. West of the mixed-use structures, 65 three-story, fee-simple townhouses are proposed, with 10 fronting on Gulfstream Boulevard and 17 fronting on Old Dixie Highway. The remaining 38 units are internal to the project. A swimming pool and clubhouse are provided for use by the townhouse occupants. In addition to the access to the townhouse area provided from the "main street", a secondary access is provided on Gulfstream Boulevard and a one-way service road is provided from Federal Highway to Old Dixie Highway at the north of the property. The mixed use buildings and their adjacent residential structures are designed in a "post- modern" architectural style, while the townhouses are "traditional" in design. In using different architectural styles, the developers have created two distinct areas for the development, with the more vibrant and urbane mixed use portion along Federal Highway and a quieter residential portion along Gulfstream Boulevard and Old Dixie Highway. Consistent with the requirements of staff, the applicant has provided an additional 20 feet of right-of-way along Old Dixie Highway and will be providing off-site improvements along Old Dixie Highway and Gulfstream Boulevard, which include on-street parking, drainage improvements and sidewalks. Sidewalks fronting the mixed use portion along Federal Highway will be widened to form pedestrian-friendly plazas. REVIEW The criteria used to review Comprehensive Plan amendments and rezonings are listed in the Land Development Regulations, Chapter 2, Section 9, Administration and Enforcement, Item C. Comprehensive Plan Amendments: Rezonings. These criteria are required to be part of a staff analysis when the proposed change includes an amendment to the Comprehensive Plan Future Land Use Map. Page 4 File Number: lUAR 05-005 Heritage Club @ Boynton Beach a. Whether the proposed rezoning would be consistent with applicable comprehensive plan policies including but not limited to, a prohibition against any increase in dwelling unit density exceeding 50 in the hurricane evacuation zone without written approval of the Palm Beach County Emergency Planning Division and the City's risk manager. n?e planning department shall also recommend limitations or requirements, which would have to be imposed on subsequent development of the property, in order to comply with policies contained in the comprehensive plan. The property is not located within the hurricane evacuation zone, therefore review and approval by the Palm Beach County Emergency Planning Division is not required. Other policies and directions contained in the City's Comprehensive Plan and other pertinent plans are discussed below. Objective 1.15 of the Future land Use Element states: "n?e City shall encourage planned development projects which are sensitive to characteristics of the site and to surrounding land uses, and mixed-use projects in locations which are appropriate, and utilize other innovative methods of regulating land development" While the attendant policies have not been updated to fully address some of the more recent and innovative additions to the land Development Regulations, the intent of this objective is clear. Policy 1.13.4 affirms the City's determination to discourage urban sprawl and to encourage mixed use projects. Section "B" of that policy states: ''Demonstrate, in all future development and redevelopment in the City, land use patterns that are non-strip in nature and demonstrate the ability to attract and encourage a functional mix of uses. " The proposed project is located in Planning Area V, as defined in the "Federal Highway Corridor Community Redevelopment Plan", and the requested land use amendment is for the Special High Density Residential designation. Policy 1.16.1 of the land Use Element reads, in part: "Special High Density Residential: This land use category shall consist of redevelopment and infill residential areas assigned to this land use category in the portion of the designated Community Redevelopment Area identified as Planning Area I and Planning Area V in the "Federal Highway Corridor Community Redevelopment Plan'; adopted on May 15, 2001. The uses allowed in this land use category shall be limited to, but shall not necessarily include, the following: Residential uses with a gross density of not more than 20.0 dwelling units per acre. .. Office and retail commercial uses may be considered if clearly accessory and subordinate to residential uses, occupying not more than ten Page 5 File Number: LUAR 05-005 Heritage Club @ Boynton Beach percent of the area of a planned unit development. A Floor Area Ratio (FAR) up to 0.20 may be considered for non-residential uses. " The proposed project is consistent with the cited definition. Additionally, the project will replace an antiquated and declining strip commercial center with a mixed-use project that will be both an aesthetic and fiscal improvement at the City's southern "gateway". b. Whether the proposed rezoning would be contrary to the established land use pattern, or would create an isolated district unrelated to adjacent and nearby districts, or would constitute a grant of special privilege to an individual property owner as contrasted with the protection of the public welfare. The proposed rezoning would not create an isolated district, but would relate to the adjacent commercially designated lands to the south of Gateway Boulevard along Federal Highway. While the property immediately west of the property across the Old Dixie Highway and FEC rights-of-way is presently vacant and lies within unincorporated Palm Beach County, there are directions for future development of this site for residential use upon its annexation into the City. The residential portion of the proposed development will form a transition to this property and the residential neighborhood farther to the west. Additionally, it will not constitute a grant of special privilege to an individual property owner as contrasted with the protection of the public welfare. c. Whether changed or changing conditions make the proposed rezoning desirable. Over time, the existing and obsolete shopping center has been in a state of decline accompanied by an influx of marginal and undesirable commercial uses mingling with some few desirable and long-time commercial uses. The proposed mixed use project will serve to revitalize the southern "gateway" to the City. The project proposes 166 residential units in a variety of sizes and styles, while the commercial portion is designed to provide a year-round customer and employment base. The planned efficient use of the space will replace a large, mostly vacant parking and sparse landscaping with a desirable project that engages the surrounding streets. d. Whether the proposed use would be compatible with utility systems, roadways, and other public facilities. Impact analyses provided by the applicant state that current water use is estimated at 34,000 gallons per day. The City's Water Utilities Department anticipates the water demand of the proposed development would be 71,380 gallons per day; an increase of 37,380 gallons per day.. Projected sewer capacity demand would be 32,121 gallons per day. According to the traffic analysis provided by the applicant, the maximum commercial intensity under the existing land use would generate 5,817 trips per day. With the proposed redevelopment, the trip generation drops to 4,175 external trips per day, for a reduction of 1,642 trips per day. With respect to solid waste, the Palm Beach County Solid Waste Authority has stated that adequate capacity exists to accommodate the county's municipalities throughout the 10-year planning period. The School District of Palm Beach County has reviewed the Page 6 File Number: LUAR 05-005 Heritage Club @ Boynton Beach application and has determined that adequate capacity exists to accommodate the resident population. The City's Fire and Life Safety Division has stated that the Fire Department expects to be able to maintain an adequate level of service for the subject project with current or anticipated staffing. Lastly, drainage will also be reviewed in detail as part of the site plan approval process, and must satisfy all requirements of the city and local drainage permitting authorities. e. Whether the proposed rezoning would be compatible with the current and future use of adjacent and nearby properties, or would affect the property values of adjacent or nearby properties. As discussed above, the proposed development would relate to the adjacent commercially designated lands to the south of Gateway Boulevard along Federal Highway. While the property immediately west of the property across the Old Dixie Highway and FEC rights-of-way is presently vacant and lies within unincorporated Palm Beach County, the "Problems and Opportunities" section of the Future Land Use Support Documents contains directions for future development of this site for residential use upon its annexation into the City. The residential portion of the proposed development will form a transition to this property and the residential neighborhood farther to the west. f. Whether the property is physically and economically developable under the existing zoning. The property is currently developed; however, as the existing shopping center is in a state of economic and physical decline, the City will be better served with the proposed redevelopment of the property. g. Whether the proposed rezoning is of a scale which is reasonably related to the needs of the neighborhood and the city as a whole. The property is less than 10 acres in size, but has frontages on Federal Highway, Gateway Boulevard and Old Dixie Highway. The aesthetic quality of the proposed redevelopment project will greatly improve the aesthetic quality of this portion of the Federal Highway corridor, which is a major gateway into the City. h. Whether there are adequate sites elsewhere in the city for the proposed use, in districts where such use is already allowed. There are only two other sites currently existing within the City where a similar project could be considered without land assemblage; both sites are currently developed with successful commercial centers. Redevelopment of these sites would not have the impact on the image of the City that redevelopment of the subject site will have, since neither of them are located in such proximity to the "gateways" to Boynton Beach. CONCLUSIONS/RECOMMENDATIONS As indicated herein, this request is consistent with relevant policies contained in the Comprehensive Plan and the Federal Highway Corridor Redevelopment Plan; will not create Page 7 File Number: LUAR 05-005 Heritage Club @ Boynton Beach additional impacts on infrastructure that have not been anticipated in the Comprehensive Plan; will be compatible with adjacent land uses and will contribute to the overall economic development of the City. Therefore, staff recommends that the subject request be approved. If the Community Redevelopment Agency Board or the City Commission recommends conditions, they will be included as Exhibit "B". ATTACHMENTS S:\PIannlng\SHARED\Wp\PROJECTS\Heritage Oub @ Boynton Beach\LUAR 05-005\STAFF REPORT LUAR 05-005.doc LOCATION MAP Heritage Club @ Boynton Beach LUAR 05-005 Exhibit A : .s ..., b - CJ ... c z E Ill: C 200 100 o 200 Feet N A Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 received any letters of objection and had received many letters of support from adjacent property owners. Maryanne Deasy, 625 N.E. 15th Place, Boynton Beach, stated that they wanted a screen enclosure for two reasons: 1) all the debris that blew into their pool after the hurricanes, and 2) her allergies to insect bites. Mr. Fenton inquired about the height of the screen enclosure, and Ms. Deasy responded that it would not be higher than the one-story house. Mr. DeMarco inquired whether other homeowners in their neighborhood had screen enclosures on their pools, and Ms. Deasy responded that of the eight or so neighbors with pools, four homes had screened enclosures. Chair Heavilin asked whether affixing the support posts to the existing concrete would be a violation. Mr. Breese responded that the Building Department would require special anchors. Chair Heavilin opened the floor for the public and closed it when no one came forward. Marie Horenburger felt that this was a self-imposed hardship since they were aware of the situation when they purchased the property. Motion Mr. DeMarco moved to approve the request (ZNCV 05-005) for relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a ten (10) foot side yard setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a screen enclosure within the R-1-M Single-Family Residential zoning district. Vice Chair Tillman seconded the motion that passed 4-1, Ms. Horenburger dissenting. B. Land Use Amendment/Rezonino Description: Heritage Club at Boynton Beach (LUAR 05- 005) Michael Weiner, Esquire, Weiner & Aronson, P .A. Thirty Six Hundred Holdings, LLC Northwest corner of the intersection of Federal Highway and Gulfstream Boulevard Request to amend the Comprehensive Plan Future Land Use Map from Local Retail Commercial to Special High Density Residential; and 1. Project: Agent: Owner: Location: Request to rezone from C-3 Community Commercial to PUD Planned Unit Development Proposed Use: Mixed use development containing 19,500 sq. ft. of commercial development (office, retail, restaurant) and 166 multi-family residential units 6 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 New Site Plan 2. Project: Heritage Club at Boynton Beach (NWSP 05- 014) Michael Weiner, Esquire, Weiner & Aronson, P .A. Thirty Six Hundred Holdings, LLC 3629 South Federal Highway Request New Site Plan approval in order to construct 70 townhouse units, a four (4)-story mixed-use building consisting of 84 dwelling units, 3,500 square feet of restaurant, 4,100 square feet of retail, and 5,164 square feet of office. The site plan also includes a three (3)-story mixed-use building consisting of 12 dwelling units, 5,394 square feet of retail, and 1,380 square feet of office, all of which are proposed on an 8.302-acre parcel zoned Planned Unit Development (PUD) Agent: Owner: Location: Description: Heiaht Exception 3. Project: Heritage Club at Boynton Beach (HTEX 05- 004) Jason S. Mankoff, Weiner & Aronson, P.A. Thirty-Six Hundred Holdings, LLC Northwest comer of the intersection of Federal Highway and Gulfstream Boulevard Request for a height exception of 10 feet pursuant to the City's Land Development Regulations, Chapter 2, Zoning, Section 4.F.2, to allow the decorative towers to be 55 feet in height, a distance of 10 feet above the 45-foot maximum height allowed in the (PUD) Planned Unit Development zoning district. Agent: Owner: Location: Description: All three Heritage Club items were heard simultaneously, since they were integral to the rezoning request. Dick Hudson, Senior Planner, reported that the subject property was currently classified as Local Retail Commercial and zoned Community Commercial. The request is to change the Future Land Use Map to Special High Density Residential and rezone to Planned Unit Development for the purpose of building a Mixed Use project containing slightly less than 20K sq. ft. of commercial space, which includes office, retail, and restaurant space. There are 160 mUlti-family residential units. Staff recommends approval for the following reasons: o The proposed land use amendment and rezoning are consistent with the applicable Comprehensive Plan policies and also meet the review criteria required for the Land Development Regulations. o The project will replace an antiquated and declining strip commercial center with a mixed-use project that will be an aesthetic and physical improvement at the Oty's southern gateway. 7 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 o The project supports the "Eastward Ho" Initiative, which emphasizes redevelopment of the coastal area where infrastructure is already in place as opposed to encouraging development patterns in the suburban areas to the west. o The project proposes a sizeable number of residential units in a variety of sizes and styles, with a commercial portion designed to provide a year-round customer and employment base, which supports the revitalization of the downtown. Eric Johnson, Planner, displayed a map that showed the townhouse buildings on the west side and two mixed-use buildings along Federal Highway. The property in the southeast corner was not part of the project. The office square footage is 6,544 sq. ft. The retail square footage is 9,494 sq. ft. Restaurant area is 3,500 sq. ft. There would be 70 townhouse units and 96 multi-family units. The project meets the Traffic Performance Standards of Palm Beach County, contingent upon the dedication of a right-turn lane into the development from North Federal Highway. Staff reviewed the project for concurrency with respect to potable water, sanitary sewer, Police/Fire, drainage, and school and all conditions were met. There are three points of ingress and egress, two on Federal Highway and a third on Gulfstream Boulevard. Mr. DeMarco asked Mr. Johnson if the entrances to the property were one-way or two-way, and Mr. Johnson explained the configuration of the different ingresses and egresses. Ms. Horenburger asked how people coming from the west on Gulfstream Boulevard would access the property. The response was that they would have to go north on Federal Highway and make a U-turn. She asked if there were a plan for a U-turn lane and the response was affirmative. There is no ingress from Gulfstream Boulevard. Chair Heavilin inquired about which parking garage the residents would use. Mr. Johnson said that any shared parking would occur in Building 2. Staff had reviewed the shared parking aspect of the project and technically, it met the requirements with parking spaces to spare. However, the applicant had to make the owners aware that they would only have one parking spot. Parking spaces cannot be designated for just one use in a shared parking scenario. Ms. Horenburger believed that no parking spot would be designated for the residents and requested clarification. Mr. Johnson elaborated, saying shared parking occurred in Buildings 1 and 2, but the restaurant users would only have access to the parking garage in Building 2. Persons living in Building 1 would have access to a space in the parking garage in Building 1. People in Building 2 would also have access to a space in Building 2, except that during peak times, there would probably not be any guest type spaces. Vice Chair Tillman inquired whether there would be a bottleneck at the turnaround at the end of the main drive aisle. Mr. Johnson responded that the City's Engineering Department had reviewed it for turning movements and radii and found no problem. Mr. Johnson stated that the applicant had been made aware of the shared parking restrictions and he thought the applicant would be willing to put this in the Homeowners Association documents. Ms. Horenburger wanted to make awareness of the parking restriction by the residents a condition of approval. 8 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 Jason Mankoff affirmed that they were going to designate twelve of the parking spaces in Building 2 for the twelve units in that Building. Also, they would have documentation in the contract advising buyers that they would only be guaranteed one space. Mr. Johnson reviewed the Height Exception. The buildings comply with Code, but there are some decorative elements that exceed the forty-five foot height maximum height in a PUD. However, the features of the building that exceed the height limits are interesting and make the whole project "work." Staff felt that the proposed project was good for the City and recommended approval of the Height Exception and Site Plan. Chair Heavilin invited the CRA Planner to add her comments at this time. She thought this should become a regular feature in future hearings. Vivian Brooks, CRA Planner, had participated in the Technical Review Committee. In spite of having to work around the use on the southeast corner, the applicant had hidden the garages and actively addressed Old Dixie Highway, Gulfstream Boulevard, and Federal Highway. All the townhouses connect with walkways to the sidewalks. They were going to create a community that would, hopefully, set the trend for the rest of Old Dixie Highway and the other projects that will occur in that area. She thought the project was interesting architecturally, with no long, unbroken expanses. They had done a good job and she recommended approval of the project. Mr. Fenton asked Ms. Brooks to comment on the architectural value of the features that ca./Ied for the Height Exception. Ms. Brooks said the features added value to the project to a focal gateway project in the south. To have something that stands out architecturally was what the City had been looking for on its gateways. The applicants for the project on Woolbright Road and Federal Highway were asked to bring that project up in height. She personally liked it. Mr. DeMarco inquired whether the project would have security and protection from surrounding uses, particularly the one to the southeast. Ms. Brooks responded that the community was protected visually and physically since an actual phYSical structure, Building 2, separated them. Jason Mankoff of Weiner & Aronson, P.A., 209 N. Seacrest Boulevard, Boynton Beach, spoke as agent for the project. Robert Mathias, David Biggs, and J. P. DiMisa, prinCipals with the developer, New Century Companies, were present along with Jim Knight, principal of Thirty-six Holdings, the current owner of the property and Stuart Debowsky and Jose Samuel with MSA Architects. Jeffrey Schnars, President of Schnars Engineering, and Hugh Johnson, landscape architect with Architects Alliance, were in attendance as well. Mr. Mankoff distributed a booklet summary of the project to the board members and showed visual renderings of the Site Plan to the board and to the audience. Mr. Mankoff stated that this project was very similar to a successful project they had completed in Delray Beach. stuart Debowsky, project manager of MSA Architects, said they were proud to present this project to the City. This is a mixed-use project that has % condominium units, 84 of which are in Building 1. The residents in Building 1 have exclusive use of the parking spaces and Building 2 only has 12 residential units. There are three-story townhouses with 70 units to the west. They had tried to put together a project resembling a village. The east-west road was meant to simulate a "main street" concept, with angled parking and a large pedestrian arcade. The applicant is planning a cafe concept for the corner of Building 1 in support of a theme of street activity, both 9 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 day and night. They were considering townhouse models with two "fronts," so they would not have to present their "back" to Old Dixie Highway. They hoped that all the elements they were putting together would be reminiscent of a village that had come together over a period of years. Ms. Horenburger asked what they had done to screen the uses to the north of the project. She had been told there would be a parking garage between the residential and that area and it appears the residences would be facing it. Stuart Debowsky said that it was a tough site on all sides: cars on Federal Highway, the train on Old Dixie Highway, the use to the southeast, and the storage facility on the north. They had created an access/service road as an adequate buffer. The first unit occurs thirty to forty feet from the edge of that. Special care had been taken to screen the property on all sides with landscaping, but especially on the northern boundary. They felt the actual living spaces were set well apart from the northern border. Mr. DeMarco asked why they had chosen the name Heritage Club. Mr. Mankoff responded that there were other Heritage Clubs in Delray Beach and it was like a brand name. In regard to the property to the south, if they were able to acquire it, they could possibly have a Phase II. Mr. DeMarco then asked about the price ranges of the units. Robert Mathias, New Century Companies, said the condo building would have one, two, and three bedrooms and they would be between $200-400K and the townhouse units would be between $400-500K. Mr. Fenton questioned what kind of noise buffering the developer had in mind for the units next to the railroad tracks. Mr. Mathias responded they were going to use landscaping and building materials that would provide an amazing amount of sound insulation. They had developed two projects close to railroad tracks and they had not had any issues. Jose Samuels, MSA Architects, commented that the taller features helped to create visual appeal for the project. Most main streets did not have long buildings with flat tops, but ones of varying heights. Marie Horenburger asked staff whether additional density or height would be involved if the developer were able to obtain the parcel on the southeast corner. She thought this might occur since the property owner to the southeast was asking an exorbitant amount of money, additional incentives might be involved. Mike Rumpf, Planning & Zoning Director, stated that this project had come in under the current land use and zoning scheme - it solved the problems. To go outside that, because the developer was at those thresholds, would exceed what the system allows and would be inconsistent with the Corridor Plan. Prior proposals were well above the current thresholds. Ms. Horenburger thought it would be nice to have a more cohesive site as the entrance to the City. Mr. Mankoff stated the applicant agreed to all 71 conditions of approval. He praised staff for their assistance and cooperation in the planning of this important, gateway project. The applicant added two conditions based on the discussions at this meeting: 1) designate twelve spaces for the condominium owners, and 2) provide notice in the condo documents or in the contract at the time of signing that each of the individual owners would only be guaranteed one space. They believed that the height was important for the project and that they had met all the requirements for such a request. 10 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 Chair Heavilin opened the floor to the public, and closed it when no one wished to speak. Mr. Fenton took issue with the passive voice in some of the Conditions of Approval, pointing out item 1 that asks: "Please indicate number and size of containers." He felt that a more declaratory or dictatorial tone was in order. Mr. Johnson responded that staff was confident that all the conditions would be met and if not, permits would not be issued. Staff felt that it had protected the City with the Conditions of Approval. A large number of the conditions had already been satisfied. Mr. DeMarco confirmed with the agent that the applicants were in agreement with all 71 Conditions of Approval and were adding two more. He expressed appreciation for what the developers had done for that corner of the City. Mr. Johnson declared that staff agreed with the two new conditions of approval suggested by the applicant. Motion Ms. Horenburger moved to amend the Comprehensive Plan Future Land Use Map from Local Retail Commercial to Special High Density Residential (LUAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0. Motion Ms. Horenburger moved to approve the request to rezone from C-3 Community Commercial to PUD Planned Unit Development (LUAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0. Motion Ms. Horenburger moved to approve the Site Plan approval for the Heritage Club at Boynton Beach (NWSP 05-014) subject to all 73 Conditions of Approval. Mr. Fenton seconded the motion. Chair Heavilin commented that the applicant had raised the bar for development in Boynton Beach. She thought it was the best project the board had seen. Mr. Mankoff commended City staff for its efforts. The motion passed 5-0. Motion Mr. Fenton moved to approve the request for height exception of 10 feet for Heritage Club of Boynton Beach (HTEX 05-004). Vice Chair Tillman seconded the motion that passed 5-0. C. New Site Plan Neelam (fka Schnars) Business Center (NWSP 05-022) J. Ernest Brady, Stephen James Inc. Anand D. Patel (Contract Purchaser) 924 N. Federal Highway Request for Site Plan approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use Low (MU-L) zoning district. Ed Breese, Principal Planner, stated that this property had changed hands and the site plan approval expired. The new owner would like to build the same building as previously approved. 1. Project: Agent: Owner: Location: Description: 11 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VIII.-PUBLIC HEARING ITEM B.l Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office [gJ August 2, 2005 July 18,2005 (Noon.) 0 October 5, 2005 September 19,2005 (Noon) 0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon) 0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 October 17,2005 (Noon) 0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005 October 31, 2005 (Noon) NATURE OF AGENDA ITEM . - .n '} '---1 0 Administrative 0 Development Plans -:; .-< -' 0 Consent Agenda 0 New Business ' _'TI -, ,",.., [gJ Public Hearing 0 Legal C" " ,=.J 0 Bids 0 Unfinished Business ,""~ 0 0 -- ,- Announcement Presentation --" A_ " 0 '-,',<.;D City Manager's Report ,..,.,.... .T-...:Pi --..... ~' (J RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Public Hearing, ::r:: to be combined with the corresponding Land Use Amendment and Rezoning item. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12,2005, subject to all conditions, plus the additional conditions regarding designation of parking spaces for condominium units and documentation within sales documents regarding limitation of one (I) parking space per condo unit for the twelve units in building 2. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-117. EXPLANATION: PROJECT: AGENT: OWNER: LOCATION: DESCRlPTION: Heritage Club @ Boynton Beach (NWSP 05-014) Michael Weiner, Esquire, Weiner & Aronson, P.A. Thirty Six Hundred Holdings, LLC 3629 South Federal Highway Request New Site Plan approval in order to construct 70 townhouse units, a four (4)-story mixed-use building consisting of84 dwelling units, 3,500 square feet of restaurant, 4,100 square feet of retail, and 5,164 square feet of office. The site plan also includes a three (3)-story mixed-use building consisting of 12 dwelling units, 5,394 square feet of retail, and 1,380 square feet of office, all of which, are proposed on an 8302-acre parcel zoned PUD Planned Unit Development. PROGRAM IMP ACT: FISCAL IMPACT: ALTERNATIVES: Devel p. ~ ~ P.R.... ./ Planning and Zoning::Director City Attorney / Finance / Human Resources S:IPlanning\SHARED\WPIPROJECTS\Heritage Club @ Boynton Beach\NWSP 05-014\Agenda Item Request Heritage Club NWSP 05-014 8-2-05.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 05-117 STAFF REPORT TO: Chair and Members Community Redevelopment Agency and City Commission DATE: Michael Rumpf Planning and Zoning Director Eric Lee Johnson, AICP ~,.'-' Planner 0 July 6, 2005 THRU: FROM: PROJECT NAME/NO: Heritage Club / NWSP 05-014 REQUEST: New Site Plan PROJECT DESCRIPTION Property Owner: Thirty Six Hundred Holdings, LLC Applicant: New Century Companies, LLC and Thirty Six Hundred Holdings, LLC Agent: Mr. Michael Weiner, Esquire / Weiner & Aronson, P.A. Location: Northwest corner of the intersection of Federal Highway and Gulfstream Boulevard (Exhibit "A'') Existing Land Use: Local Retail Commercial (LRC) Existing Zoning: Community Commercial (C-3) Proposed Land Use: Special High Density Residential Proposed Zoning: PUD Planned Unit Development Proposed Uses: Office: Retail : Restaurant: Residential: 6,544 square feet 9,494 square feet 3,500 square feet 70 townhouse units 96 multi-family units Acreage: ::1:8.302 acres Adjacent Uses: North: Developed property (self-service storage) designated Local Retail Commercial and zoned C-3 Community Commercial; Staff Report - Heritage Club (NWSP 05-014) Memorandum No PZ 05-117 Page 2 South: Developed outparcel (adult entertainment) designated Local Retail Commercial and zoned C-3 Community Commercial, then the right-of-way of Gulfstream Boulevard, then developed commercial (fast-food and office building) designated Local Retail Commercial and zoned C-3 Community Commercial; East: Right-of-way of Federal Highway then undeveloped property in the Town of Gulfstream designated Recreation and zoned OR Outdoor Recreation; and West: Rights-of-way of Old Dixie Highway and the Florida East Coast Railroad, then vacant property in Palm Beach County designated MR-5 (5 du/ac) and zoned RS-Single-family Residential. PROPERTY OWNER NOTIFICATION Owners of properties within 400 feet of the subject conditional use were mailed a notice of this request and its respective hearing dates. The applicant certifies that they posted signage and mailed notices in accordance with Ordinance No. 04-007. BACKGROUND Proposal: Mr. Michael Weiner, agent for the property owner (Thirty Six Hundred Holdings, LLC) is requesting to develop a large scale, mixed-use project. The survey shows that the subject property is currently developed with a one (l)-story shopping center and related parking areas. The intent is to raze the existing shopping center and redevelop the site with 13 townhouse buildings and two (2) mixed-use buildings, including their interior parking garages. Approval of this project is contingent upon the approval of the accompanying request to amend the Future Land Use Map and rezone (LUAR 05-005) the property from Community Commercial (C-3) to Planned Unit Development (PUD). It should be noted that the current PUD regulations permit neighborhood commercial uses within the residential development, but require that the areas designated for commercial activities not front on exterior or perimeter streets and preferably are located centrally within the project. Staff is proposing an amendment to the Land Development Regulations, Chapter 2.5 Planned Unit Development, Section 9.D. Commercial Standards, to allow for commercial uses in PUDs to front on exterior or perimeter streets, when such locations are consistent with adopted redevelopment policies and plans. Therefore, approval of this site plan is contingent upon the staff initiated request for code review (CDRV 05-011). Also, the PUD zoning district allows for a maximum height of 45 feet. The applicant submitted an accompanying request for height exception (HTEX 05-004) because as proposed, decorative features of the building would exceed the 45-foot height threshold (see Exhibit "c" - Conditions of Approval). Staff Report - Heritage Club (NWSP 05-014) Memorandum No PZ 05-117 Page 3 ANALYSIS Concurrency: Traffic: Generally, anticipated project traffic is generated by two factors, namely the proposed use and its intensity. Intensity is typically measured by the proposed building area (in square feet). The project's traffic statement was reviewed and approved by the Palm Beach County Traffic Division. Based on the Traffic Division's review, it has been determined that the residential portion of the proposed mixed-use redevelopment project is located within the Coastal Residential Exception Areas of Palm Beach County, while the retail and office components generate less daily and peak hour trips than the existing retail space which is to be demolished. The project meets the Traffic Performance Standards of Palm Beach County, contingent upon the provision of a southbound exclusive right-turn lane on North Federal Highway leading to the project access driveway. No building permits are to be issued after the build-out date of 2008 (see Exhibit "C" - Conditions of Approval). Utilities: The purchase of up to 5 million gallons of potable water per day from Palm Beach County Utilities would supply potable water for this project (projected to a total of 83,885 gallons per day). Local piping and infrastructure improvements may be required for the project, dependent upon the final project configuration and fire- flow demands. These local improvements would be the responsibility of the site developer and would be reviewed at the time of permitting. Sufficient sanitary sewer and wastewater treatment capacity is currently available to serve the project total of 44,225 gallons per day, subject to the applicant making a firm reservation of capacity, following approval of the site plan. Police/Fire: For the purposes of this study, a statistical analysis was completed to show the percentage of increase of police calls for service for the selected project area. A crime analysis for 2004 shows that there have been 9,814 calls for service for zone 5, which represents 14.4% of all calls for service. There are no other existing developments to use as a comparison for this assessment. It must be noted that this project is one of six (6) mixed-use projects planned for completion. An increase of 12% of total calls for service is projected from proposed citywide growth. The subject project would have a direct impact on providing an adequate level of public service to this area. The need for additional officers in Zone 5 is evident by the high percentage of calls for service that one officer is currently handling. Due to new development throughout the city, all city services will be affected. Service requirements for the police department will be impacted greatly and the demand for more police personnel and equipment will be needed to balance the increase in population. Fire staff reviewed the site plan and determined that current staffing levels would be sufficient to meet the expected demand for services. Infrastructure requirements such as hydrants and roadways would be addressed during the Staff Report - Heritage Club (NWSP 05-014) Memorandum No PZ 05-117 Page 4 permitting process (see Exhibit "c" - Conditions of Approval). Drainage: Conceptual drainage information was provided for the City's review. The Engineering Division is recommending that the review of specific drainage solutions be deferred until time of permit review (see Exhibit "c" - Conditions of Approval). School: Regarding school concurrency, the proposed project lies within Concurrency Service Areas (CSA) 19 and SAC 283. Based on the School District of Palm Beach County's adopted multiplier's for an average multi-family dwelling unit, the proposed development may generate 14 elementary school students, seven (7) middle school students, and 10 high school students. The School District determined that adequate capacity exists to accommodate the projected resident children. Driveways: The project can be characterized as "urban infill, mixed-use" development whereby front building setbacks are minimal and off-street parking is relegated to a subordinate role. The site plan shows that the development would be divided into two (2) distinct areas, namely, the townhouse portion and the mixed-use portion. The plans show that parking garages would provide for the majority of off-street parking spaces for the mixed-use portion. The garages are intentionally proposed as hidden structures located within the core of the project and virtually unseen from the major roadways. Likewise, the project is not proposing traditional driveways or surface parking lots like that of "suburban"-type of projects (where driveways connect to off-street parking located in front of the buildings). The site plan shows that vehicles would enter the site from three (3) points of entry. Utilizing the existing curb-cut, the main entrance is proposed on Federal Highway. This entrance would serve as the primary point of ingress for both the mixed-use portion and the townhouse portion of the development. Vehicles traveling southbound on Federal Highway would enter the site by utilizing the deceleration lane proposed on Federal Highway and drive within the 15-foot wide ingress lane. The egress lane would also be 15 feet wide and allow for right-turn (south) traffic movement. The driveway, drive aisles, and turning radius, internal to the development, would be improved to conform to current city engineering standards. An alternate entrance is also proposed along Federal Highway, at the northeast corner of the site. However, this entrance would only be used as a one (l)-way service drive for mixed-use Building 1. The drive aisle would connect to Old Dixie Highway. Although not dimensioned, when scaled, it appears as though the driveway opening would be 15 feet in width. The third pOint of ingress is proposed along Gulfstream Boulevard. This driveway opening would serve as the secondary point of ingress but proposed for only the townhouse portion of the site. It would be gated and no access would be permitted to the mixed-use areas. Although not dimensioned, when scaled, it appears as though the driveway opening would be 15 feet in width. Likewise, the egress lane would also be 15 feet in width. It would allow for right (west) and left (east) turn traffic movements onto Gulfstream Boulevard. Staff Report - Heritage Club (NWSP 05-014) Memorandum No PZ 05-117 Page 5 Parking Facility: Off-street parking proposed within the development must meet the requirements in Chapter 2, Section 11.H. of the Boynton Beach Land Development Regulations. The project proposes a mix of residential, retail, restaurant, and office uses. One- bedroom apartment units require one and one-half (1112) parking spaces. Two bedroom apartment units require two (2) parking spaces. The project proposes 166 dwelling units (a mixture of one, two, and three bedrooms), requiring 330 parking spaces. Retail uses proposed within mixed-use projects require one (1) parking space per 200 square feet of gross leasable floor area. For this project, a total of 48 parking spaces would be required for the retail uses. Office uses require one (1) parking space per 300 square feet of gross floor area, The project proposes 6,544 square feet of office and therefore, would require 21 parking spaces. Restaurants require one (1) parking space per two and one-half (2-112) seats but not less than one (1) parking space per 100 square feet of gross floor area. The site plan proposes 3,500 square feet and therefore, would require 35 parking spaces. In conclusion, under these standardized parking methodologies, a total of 434 parking spaces would be required. In summary, the plan would provide 46 surface parking spaces, 235 parking garage spaces, and 140 townhouse garage spaces. The project would only provide a grand total of 421 parking spaces, a deficiency of 13 spaces. To comply, the applicant submitted a shared parking analysis which demonstrates that 413 parking spaces would be required, resulting in an excess of eight (8) spaces. Building 1 proposes a mix of residential, commercial, restaurant, and office uses, requiring 237 parking spaces. The parking garage internal to Building 1 would provide only 152 spaces. Fifteen surface spaces are also proposed near Building 1, which provides a total of 167 parking spaces but a deficit of 70 spaces. It should be noted that the residential portion of Building 1 would require 164 spaces. The intent is to restrict access to the garage to be used solely by the residents who reside within Building 1. The commercial users would park in the surplus spaces provided by Building 2. The townhouse portion of the development would be self-sufficient in terms of its required parking. The townhouses would require 145 spaces and would provide 155 spaces. This would be accomplished by providing 140 garage spaces and 15 on-street parking spaces. In addition to the off-street parking, the project is proposing 21 on-street parking spaces within the Old Dixie Highway and Gulfstream Boulevard rights-of-way. However, these spaces cannot contribute towards the number of provided parking spaces. According to the applicant, however, they will be unrestricted and open for public use. Landscaping: The cover sheet tabular data indicates that the proposed pervious areas would equal 3.112 acres or 37.52% of the site. The tree removal plan (sheet T-1) indicates the subject site currently contains 93 trees with a total of 955 caliper inches to mitigate. The existing tree species are as follows: Black Olive, Cabbage palm, Fish Tail palm, Mahogany, and several unknown trees. Eight (8) of the 93 trees would remain. The landscape plan proposes a 110% replacement of the caliper inches, with a total of 62 canopy trees, 185 small non-shade trees, 164 Staff Report - Heritage Club (NWSP 05-014) Memorandum No PZ 05-117 Page 6 palm trees, 34 small palm trees, 7,013 shrubs, and 3,381 groundcover plants. According to the plant list, 226 of the 423 trees or 53% would be native. The landscape plan also proposes a total of 6,073 plants or 58% of the shrubs / hedges / accents would be native species. The plant material proposed along Federal Highway within the east landscape (east) buffer would consist of the following species: Ixora Nora Grant, Dwarf Ilex Holly, Golden Duranta, Redtip Cocoplum, Dwarf Bougainvillea shrub, Eugenia, Washingtonia palm, Zahidi Date palm, Tree Ligustrum, and Florida Royal palm. The Florida Royal palm trees would be 25 feet tall at the time of installation. Their height would help soften the upper stories of the four (4) story buildings. Ligustrum trees are proposed in between the Royal palm trees. These smaller trees are strategically placed to provide more of a human scale. Both trees would not interfere with overhead lines along Federal Highway. The south landscape buffer would be 10 feet in depth in areas where it abuts the out-parcel to the south. The existing mature Black Olives would remain and eight (8) Pigeon Plum trees are also proposed to help soften the two (2) story parking structure. A row of Redtip Cocoplum hedges are proposed (along the periphery of the subject property) adjacent to the sides of the out-parcel. A row of Pigeon plum trees are proposed along Gulfstream Boulevard within the fee-simple lot area of the three (3)-story townhouses. A row of Live Oak trees are proposed outside the fee- simple area and within both the right-of-way for Gulfstream Boulevard and Old Dixie Highway. In addition, the developer is proposing trees and shrubs at the northwest corner of Federal Highway and Gulfstream Boulevard, which would serve as a grand entrance into the City. Staff fully supports the installation of the trees and shrubs within the rights-of-way. However, all plant material proposed outside the property line must be excluded from the plant list in terms of meeting the minimum required landscape requirement (see Exhibit "CIf - Conditions of Approval). In the past, the Old Dixie Highway corridor was not improved to current City standards. Therefore, the developer will be required to set aside the western 20 feet of the subject property for right-of-way purposes. As proposed, the townhouse buildings along Old Dixie Highway would be setback 20 feet from the sidewalk interior. The interior of the sidewalk would demarcate between private and public ownership. This 20-foot wide setback area would also function as the western landscape buffer. A black aluminum rail fence (42 inches in height) is proposed within the buffer area. It would be setback approximately six (6) feet from the back of the sidewalk. Additionally, either Pigeon Plum trees or Live Oak trees, in conjunction with various shrubs / groundcover (Purple Crinum Lily, Dwarf Indian Hawthorne, and Tricolor SheffJera) is also proposed within this 20 foot wide buffer, within the limits of the fee-simple area of the townhouses. It should be noted that the choice of canopy trees, proposed within the northern half of this west landscape buffer, is limited due to the presence of overhead power lines that currently run parallel to Old Dixie Highway. There are no overhead power lines present within the southern half of the west landscape buffer and therefore, Live Oak (street) trees may be planted there. Staff Report - Heritage Club (NWSP 05-014) Memorandum No PZ 05-117 Page 7 The north landscape buffer would be four (4) feet in width at its narrowest point and 12 feet wide at its widest point. It would contain a mix of trees, shrubs, and groundcover (Silver Buttonwood, Yellow Elder, Redtip Cocoplum, and Wild Coffee). A one (l)-way drive aisle would run parallel to this landscape buffer. The interior of the site would contain a substantial amount of plant material. Staff focused on the location and height of the proposed trees, especially in areas where the parking structures are proposed. The landscape plan shows that the planting strip along the north fa<;ade of Building 1 would be approximately 12 wide. The landscape plan proposes a row of Cabbage palm (installed at 16 feet to 23 feet of clear trunk), Fishtail palm (12 feet to 14 feet in height), and Ligustrum (10 feet). These trees would help to provide an upper level and lower level canopy. In addition, the northeast, northwest, and southwest corners of Building 1 would have clusters of Washingtonia palm trees installed at 18 feet to 24 feet in height. The front (south) fa<;ade of Building 1 would have a row of Solitaire palm trees installed at 18 feet to 22 feet in height. Building 2 is also proposed as a four (4)-story building but mainly along Federal Highway. The interior parking garage would only be two (2)-stories tall. The landscape plan proposes a row of Pigeon Plum trees along the north fa<;ade of Building 2. Staff recommends substituting the Pigeon Plum trees, proposed at the main access drive with Royal palm trees (see Exhibit "C" - Conditions of Approval). Building and Site: The site plan proposes a mix of residential and commercial uses. The commercial square footage would total 3.52% of the entire site. Building and site design as proposed would generally meet code requirements when staff comments are incorporated into the permit drawings. The maximum allowed density of the SHDR land use category would be 20 dwelling units per acre. The proposed project density would be 20 dwelling units per acre. As previously mentioned, the existing commercial buildings would be replaced with the proposed four (4 )-story mixed-use buildings and three (3)-story townhouse buildings. The depth of the parcel extends westward from Federal Highway to Old Dixie Highway, excluding the lone out- parcel where the adult entertainment establishment is located. As such, the subject property fronts on three (3) rights-of-way. The taller, four (4)-story, mixed-use buildings would front on Federal Highway whereas the three (3)-story townhouse buildings would face Old Dixie Highway and Gulfstream Boulevard. The mixed-use buildings would contain an internal parking garage. All buildings are oriented so that they "face" the street, a characteristic fully endorsed by staff. The PUD zoning district allows for a maximum height of 45 feet. The elevations of Building 1 and Building 2 show that portions of their roofline would exceed the maximum allowed height. However, these appurtenances are decorative architectural elements and / or inhabitable spaces, and would be considered eligible for height exception. The applicant requested a height exception of 15 feet. The review of the height exception is discussed in an accompanying staff report (HTEX 05-004). The height, as defined by the Land Development Regulations of Building 1 and 2 would be 41 feet. Their parapet walls are proposed at 46 feet in height, which is permitted by the Regulations. Generally, the three (3)-story townhouses are proposed at 35 feet - nine (9) inches in height, Staff Report - Heritage Club (NWSP 05-014) Memorandum No PZ 05-117 Page 8 However, the townhouse building proposed directly west of Building 2 would be 31 feet - six (6) inches in height. The building was designed with a different roofline in order to achieve greater compatibility with Building 2 in terms of its style, mass, and height. In summary, all proposed buildings meet code as it relates to maximum building height. All buildings are proposed within close proximity of the property lines (that front on rights-Of-way) in order to create a more urban environment, consistent with recommendations of the Federal Highway Corridor Redevelopment Plan. The east setback along Federal Highway would vary slightly but maintain at least a 20-foot front setback. This is to maintain a clear line-of-site and to accommodate a deceleration lane along Federal Highway. The south side setback of Building 2, where it abuts the outparcel, would be 10 feet in width. The townhouse buildings proposed along Gulfstream Boulevard would have a setback 15 feet in width. The closest a townhouse building would be from the property line where it abuts the commercial outparcel would be 20 feet. As previously mentioned, the townhouses proposed along Old Dixie Highway would be 20 feet from the interior of the sidewalk. It should be noted that there are a few places along the west property line that are notched inward. As such, the proposed building setbacks would be reduced. The greatest building setbacks occur along the north property line. Building 1 would be 32 feet- four (4) inches at minimum while the closest townhouse would be 50 feet away from the north property line. This is due to the location of the existing one (i)-way drive aisle. The proposed building composition would be as follows: Residential - 282,271 square feet; Retail- 9,494 square feet; Office - 6,544 square feet; and Restaurant - 3,500 square feet. The plans show that the commercial areas of the mixed-use buildings would occur on the first and second floors only. The condominium units would occur on all floors. According to the tabular data, the one (i)-bedroom and two (2)-bedroom units are proposed in the mixed-use buildings would come in a variety of sizes. The smallest one (i)-bedroom unit would be 790 square feet (under NC) and the largest three (3)-bedroom unit would be 1,725 square feet in area. DeSign: The proposed development is generally divided into two (2) distinct halves. The eastern half would be comprised on the mixed-use buildings and the western half would be comprised on the townhouse buildings. The proposed architecture could be described as contemporary for the mixed-use buildings and traditional for the three (3)-story townhouse buildings. Both styles, as proposed, transition well and are compatible with each other. Also noteworthy is that the project parking would be virtually hidden from all views and is considered to be a subordinate, unobtrusive element of the plan. Vehicular traffic is contained within the internal framework of the project. The parking garage would be enclosed but would have decorative openings compliant with Florida Building Code. These openings would resemble large windows. The elevations show that the exterior finish of the walls would be textured stucco. The applicant is proposing a variety of colors schemes as shown in tabular format Staff Report - Heritage Club (NWSP 05-014) Memorandum No PZ 05-117 Page 9 on sheet A-28. The project's proposed building colors are as follows: White Peach Light Yellow Yellow Light Gray Beige Light Green Light Blue Charleston White Drawing Room Black House Yellow Lowcountry Spoon bread Aunt Bety's China Aiken Ivory Acanthus st. Cecilia OCR 100 OCR 035 OCR 008 OCR 014 OCR 101 OCR 002 OCR 084 OCR 069 The project also proposes hunter green canvas awnings on the mixed-use buildings. The intent is to have all buildings (both mixed-use and townhouses) with multiple colors. A general intent of Chapter 9 (Community Design Plan) is to ensure that buildings achieve visual unity of character and design concepts, in part, through the use of building colors. However, there are no established noteworthy building colors or architectural themes within the immediate area with which this project should be compatible. Therefore, the proposed colors for this site plan would not be inappropriate, incompatible, or obtrusive. The mixed-use buildings would have a unique roofline with Monier concrete tiles (grey) and multiple-styled decorative towers. The decorative towers would come in two (2) styles. As previously mentioned, this theme would be carried over to the townhouse building proposed directly west of Building 2. Signage: Minimal project detail regarding proposed signage was shown with this submittal. In the future, the applicant intends to submit a sign program but for now, the signage would consist of 18-inch tall black reverse channel letters with Helvetica font for the mixed-use buildings. A note on the elevations of Buildings 1 and 2 indicates that the entire project will follow similar signage with similar fonts and colors. As presented however, the elevations are incomplete when referring to project signage. Therefore, staff recommends utilizing a sign program for the entire project to ensure sustained continuity throughout the life of the project (see Exhibit "c" - Conditions of Approval). All project sign age shall conform to the regulations as set forth in Chapter 9 (Community Design Plan) and Chapter 21 of the Land Development Regulations. The site plan shows the location of the two (2) monument signs. The sign, located along Federal Highway, would be primarily for the mixed-use portion of the development while the other sign, located along Gulfstream Boulevard, would be used to identify the townhouse portion of the development. Both structures would be located at least 10 feet from the property line. The commercial sign would be generally five (5) feet in height with a decorative portion of it, proposed at eight (8) feet in height. The residential sign would be five (5) feet in height its peak. Both sign's colors would be compatible with the building colors but again, a more thorough investigation would occur at the time when the sign program is reviewed. Staff Report - Heritage Club (NWSP 05-014) Memorandum No PZ 05-117 Page 10 RECOMMENDATION: Staff has reviewed this request and recommends approval! contingent upon the approval of the concurrent rezoning application! height exception request! and all items noted within Exhibit "c" - Conditions of Approval. 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I - , , r , , r! ~ . . ~ i . ~ U liii Ii Ii n 1Pi Pi i Ii Jili ! ! Ii . .I' -, ! f s ' i ! a ; I ~ I I I ! I I ! I r I' i I I i I . i i i ~ i I i I I ;e i i i i i Ii I I I I I I I IIII Iii! III, ~I~~ .lii. , "I... ~ m~~Ji!!II iilD ~~;~ e-; !i!i ..~ ,- ~ ;i >> II; I 1-' ~~. ~III- II () i ~ ! . I; ! , ~ S i~::: I. i .:..1 ~i1!:i ~~-:-~ i=i~1 : 'ill! ~ S? ~ flU'!; ~. CD ,'Iii ~ N i: i~_ :~' i' !' !. . , "" ~c ~6 '-z cO o :;! ;:;i , "" ~ c '" 'i 0 .- Z cO o :;! ;:;i '< ;:; o z .... "' ~ ~ (5 z EXHIBIT B n ~lll~ !~~ + ( in' ~"1i !i~ III \ . .rV~ HERIT AGE CLUB P :II!I. i -I mI.. AT BOYNTON BEACH :t> J ... .. ;i16. ~ H m FOR NEW CENTURY COMPANIES '-l ;: Eha.. BOYNTON BEACH. FLORIOA '- ~"" ~C ~6 '-z ; 0 o. :;! ;:;i '< vo ~ "' I~ ~ "~ Ii ~ (5 I~ ~! z \,\ \. d \ \ \ ~!! ~! H Ii IIIj61 ~H j in ~:!~ -~ I il~ ~" -J~ I ," , e , e I "' I :e '- ~I II ~i ,/ '< '" <;; '" "' ~ )> .... (5 z \ H -I \ \ \ \ \ \ ~n !:J~ . :!h ," e i oil i' ! .. i I ii~ ;.i! !jl Ili..i hI ~~I~'X 11'11 il !~i!1i i~ IlJ a .1~Ui; . ol ~ ~ . / "" c 6 z () :;! ;:;i '< vo ~ "' .- ~ )> .... (5 z ~ , - , . , 'U - . I ~ Hi In! Ii 5i IPI e ~ ; ~i IU Ii Ii r. !' , ! ~ ; . ~; i I i ~ ; ~ ~ ! ! ! ! ! ! II . . . . . . . I I I I I I I I 6 I I I I 6 'I i i i i i II I; ~ ~ ~ ~ ~ ~ '~'i llii "', ~~~~ i;ii ~ ........I! n!!~ Ii 1!Il ~ ~ ~m> Ii ~ Ii ~ ~ >>> '~Hi ~~ "i r ! I : : I_ill I ",!!:il:i! ~;;;I : Ii i~::: Ii . 1 ill ! ~ 9 ~ 'il!ilj' '" ..., . 'i .! !!!. (t) 1111 I ~ N 1;11 i;~; ~~~I ;l;~S iii. , ~ J m.1 :~:~ . J; iiti:1I ;~!~: if I;', ~~~- !i~i GG!S~ m. , ~ !UF I" ..... vi I ~ i" ';;;' :1 ~ j. ~ ~~~h~ii ~ i:: ~ ~ a!l Fm 51 0>< i ~ , .. I , ....11 .... j- :;::il~ ; ii nuBI :!:!:: I: ! ' id'lli ~ 'i!I!'l "'" : ~ 'lIi~'! ~ s; ~ JdUl1 ~ 6 , 'z ~Cl 'X '" ~ )> (.) ~ ~.~ ~" ~ > i' " II i ;':" il~, .ll " Iii' hU~' IIJ'; I' '~lil il; g l!1 ' ~i;.I'Ui ~.., EJ.ihh;! : . n !~~ ., Ii II . ! I-j I; 1:5 Ji Ii J; .. m'" 5~~ ~)Ci ~.a ..,," . :'1:' . . .11-1' . 'I', : iij ; " ~ , ..Ir. . HERITAGE CLUB FORA~E~~YNTON BEACH ENTURY BOYNTON 8 COMPANIES EACH. FLORIDA EXHIBIT B I! jl ~:~'~" ~ ,.:Ii... ~ ~a i ~ \ '\\ 'j! .. .J~ ~ .- , .' .. If u III ~I lIS 3; ./ 51. / ~pmll' Jiii,ii!; llll . ~ Il,l I : :! :Ih:r ~ . I'i CJ "'tl IH!~ ~ ~ ~ "~Iii ~ ~. ~ EXHIBIT "C" Conditions of Approval Project name: Heritage Club @ Boynton Beach File number: NWSP 05-014 Reference: 3rd review plans identified as a New Site Plan with a June 14, 2005 Planning and Zoning Department date stamp marking , II DEPARTMENTS INCLUDE REJECT PUBLIC WORKS - General Comments: 1. The applicant has indicated that compactors will be used for the mixed-use X buildings and will be brought out to central areas adjacent to the buildings for pickup. Please indicate the number and size of these containers so we can evaluate the required pad sizes and our ability to perform the pickup operation. PUBLIC WORKS - Traffic Comments: 2. Additional right-of-way shall be dedicated to the City, via plat, to provide a X 50-f1. right-of-way width. Reconstruct Old Dixie Highway and Gulfstream Boulevard to provide two II-foot wide lanes, curb & gutter, sidewalk, appropriate green space with landscaping, and necessary signing / striping. Complete construction plans will be required in conjunction with the plat and will be reviewed and approved prior to issuance of the Land Development Permit (LDP). Construction ofthe required improvements shall be completed prior to issuance of the final COs for the project as required by the Amendments to the Building Code. A surety shall be provided for the required off-site improvements in the amount of 110% of the engineer's estimate for the off-site work prior to issuance ofthe LDP. The applicant shall also provide design plans for reconstruction of the FECRR / Gulfstream Boulevard crossing, including roadway re-alignment, curb & gutter, concrete median dividers, striping, and signals. The applicant shall provide an engineer's estimate for the railroad crossing. The City will consider sharing the cost of construction of the FECRR crossing. The extent of cost share is subject to allocation of funds in the City budget for fiscal year 2006 / 2007. 3. At the time of permitting, delineate and stripe l2-foot x 35 foot loading zones X for the retail buildings; include a pavement message in yellow indicating "No Parking - Loading Zone". ENGINEERING DIVISION Comments: 4. Full drainage plans, including drainage calculations, in accordance with the X LDR, Chapter 6, Article IV, Section 5 will be required at the time of COA 07/07/05 2 DEPARTMENTS INCLUDE REJECT permitting. 5. It may be necessary to replace or relocate large canopy trees adjacent to light X fixtures to eliminate future shadowing on the parking surface (Chapter 23, Article II, Section A.l.B.). Further evaluation will occur at the time of permitting. 6. Paving, Drainage and Site details will not be reviewed for construction X acceptability at this time. All engineering construction details shall be in accordance with the applicable City of Boynton Beach Standard Drawings and the "Engineering Design Handbook and Construction Standards" and will be reviewed at the time of construction permit application. UTILITIES Comments: 7. Palm Beach County Health Department permits will be required for the water X and sewer systems serving this project (CODE, Section 26-12). 8. Fire flow calculations will be required demonstrating the City Code X requirement of 1,500 g.p.m. (500 g.p.m. some residential developments) with 20 p.s.i. residual pressure as stated in the LDR, Chapter 6, Article IV, Section 16, or the requirement imposed by insurance underwriters, whichever is greater (CODE, Section 26-l6(b)). 9. The CODE, Section 26-34(E) requires that a capacity reservation fee be paid X for this project either upon the request for the Department's signature on the Health Department application forms or within seven (7) days of site plan approval, whichever occurs first. This fee will be determined based upon final meter size, or expected demand. 10. Comprehensive Plan Policy 3.C.3.4. requires the conservation of potable X water. As other sources are readily available City water shall not be allowed for irrigation. 11. A building permit for this project shall not be issued until this Department has X approved the plans for the water and/or sewer improvements required to service this project, in accordance with the CODE, Section 26-15. 12. Show all off-site improvements to the existing water and sewer infrastructure X as follows: a. The on-site lift station must be upgraded or replaced so as to accommodate the added demand and the constraints imposed by site changes. Existing gravity and pressure flows to the station must be accommodated in the design. COA 07/07/05 3 1 n DEPARTMENTS INCLUDE REJECT b. The water system must be connected to the existing 8-in. water main located on the east side of Federal Highway. In addition, an 8-in. water main connection must be established from the 12-in. water main located on the west side of Seacrest Boulevard, to the existing 8-in. line that terminates on SE 34th Ave. in the vicinity of SE 3rd Court; or an alternate route may be considered to establish an 8-in. water main connection to the 12-in. main on Seacrest Boulevard. The intent of the design is to establish an 8-in. loop from Federal Highway to Seacrest Blvd., thereby assuring adequate fire protection and domestic supply. 13. Utility construction details will not be reviewed for construction acceptability X at this time. All utility construction details shall be in accordance with the Utilities Department's "Utilities Engineering Design Handbook and Construction Standards" manual (including any updates); they will be reviewed at the time of construction permit application. FIRE Comments: 14. All hydrants shall be in service before any vertical construction. Hydrant X flow is a minimum 1500 gpm @ 2Opsi. POLICE Comments: None X BUILDING DIVISION Comments: 15. The height and area for buildings or structures of the different types of X construction shall be governed by the intended use or occupancy of the building, and shall not exceed the limits set forth in Table 500 of the 2001 FBe. 16. Every exterior wall within 15 feet of a property line shall be equipped with X approved opening protectives per 2001 FBC, Section 705.1.1.2. 17. Buildings, structures and parts thereof shall be designed to withstand the X minimum wind loads of 140 mph. Wind forces on every building or structure shall be determined by the provisions of ASCE 7, Chapter 6, and the provisions of 2001 FBC, Section 1606 (Wind Loads). Calculations that are signed and sealed by a design professional registered in the state of Florida shall be submitted for review at the time of permit application. COA 07/07/05 4 DEPARTMENTS INCLUDE REJECT 18. Every building and structure shall be of sufficient strength to support the X loads and forces encountered per the 2001 FBC, Section 1601.2.1 and Table 1604.1. Indicate the live load (psi) on the plans for the buildinl! design. 19. Buildings three-stories or higher shall be equipped with an automatic X sprinkler system per F.S. 553.895. Fire protection plans and hydraulic calculations shall be included with the building plans at the time of permit application. 20. At time of permit review, submit signed and sealed working drawings of the X proposed construction. 21. On the site plan and floor plan, indicate the number of stories that are in each X building including, where applicable, mezzanines. Indicate the overall height of each building. 22. Add to each building that is depicted on the site plan drawing a labeled X symbol that identifies the location of the proposed handicap accessible units. Add to the drawing the calculations that were used to identify the minimum number of required units. Also, state the code section that is applicable to the computations. Show and label the same units on the applicable floor plan drawings. Compliance with regulations specified in the Fair Housing Act is required (Federal Fair Housing Act Design and Construction Requirements, Title 24 CFR, Part I 00.205). 23. At the time of permit review, submit details of reinforcement of walls for the X future installation of grab bars as required by the Federal Fair Housing Act Title 24 CFR, Part 100.205, Section 3, Requirement #6. All bathrooms within the covered dwellinl! unit shall comoly. 24. Add to the drawing the calculations that were used to identify the minimum X number of required handicap accessible parking spaces. 25. Add a labeled symbol to the site plan drawing that represents and delineates X the path of travel for the accessible route that is required between the accessible units and the recreational amenities that are provided for the project and other common area elements located at the site. The symbol shall represent the location of the path of travel, not the location of the detectable warning or other pavement markings required to be installed along the path. The location of the accessible path shall not compel the user to travel in a drive/lane area that is located behind parking vehicles. Identify on the plan the width of the accessible route. (Note: The minimum width required by the Code is 44 inches). Add text that would indicate that the symbol represents the accessible route and the route is designed in compliance with regulations specified in the Fair Housing Act. Please note that at time of permit review, the applicant shall provide detailed documentation on the plans that will verify that the accessible route is in compliance with the regulations specified COA 07/07/05 5 DEP ARTMENTS in the 2001 FBC. This documentation shall include, but not be limited to, providing finish grade elevations along the path of travel. INCLUDE 26. As required by the CBBCO, Part III titled "Land Development Regulations", X submit a site plan that clearly depicts the setback dimensions from each property line to the leading edge of the buildings. The leading edge of the buildings begins at the closest point of the overhang or canopy to the property line. In addition, show the distance between all the buildings on all sides. 27. To properly determine the impact fees that will be assessed for the X clubhouse/recreation building, provide the following: a. Will the clubhouse/recreation building be restricted to the residents of the entire project only? b. Will the residents have to cross any major roads or thoroughfares to get to the clubhouse/recreation building? c. Will there be any additional deliveries to the site? d. Will there be any additional employees to maintain and provide service to the site? Please have the applicant provide the City with a copy of the letter that will be sent to the impact fee coordinator. To allow for an efficient permit review, the applicant should request that the County send the City a copy of their determination of what impact fees are required for the clubhouse/recreation building. 28. Add to the floor plan drawing of the clubhouse/recreation building a X breakdown of the floor area. The area breakdown shall specify the total area of the building, covered area outside, covered area at the entrances, total floor area dedicated for the clubhouse/recreation building and other uses located within the building. Specify the total floor area that is air-conditioned. Label the use of all rooms and floor spaces. 29. CBBCPP 3:C.3.4 requires the conservation of potable water. City water may X not, therefore, be used for landscape irrigation where other sources are readily available. 30. A water-use permit from SFWMD is required for an irrigation system that X utilizes water from a well or body of water as its source. A copy of the permit shall be submitted at the time of permit application, F.S. 373.216. 31. If capital facility fees (water and sewer) are paid in advance to the City of X Boynton Beach Utilities Department, the following information shall be provided at the time of building permit application. a. The full name of the project as it appears on the Development Order and the Commission-approved site plan. a. If the project is a multi-family project, the building number/s must be provided. The building numbers must be the same as noted on the Commission-approved site plans. REJECT COA 07/07/05 6 I DEPARTMENTS INCLUDE REJECT b. The number of dwelling units in each building. c. The number of bedrooms in each dwelling unit. d. The total amount paid and itemized into how much is for water and how much is for sewer. (CBBCO, Chapter 26, Article II, Sections 26-34) At time of permit review, submit separate surveys of each lot, parcel or tract. For purposes of setting up property and ownership in the City computer, provide a copy of the recorded deed for each lot, parcel or tract. The recorded deed shall be submitted at time of permit review. 32. At time of building permit application, submit verification that the City of X Boynton Beach Parks and Recreation Impact Fee requirements have been satisfied by a paid fee or conveyance of property. The following information shall be provided: a. A legal description of the land. b. The full name of the project as it appears on the Development Order and the Commission-approved site plan. c. If the project is a multi-family project, the building number/s must be provided. The building numbers must be the same as noted on the Commission-approved site plans. d. The number of dwelling units in each building. e. The total amount being paid. (CBBCO, Chapter 1, Article V, Section 3(t)) 33. Pursuant to approval by the City Commission and all other outside agencies, X the plans for this project must be submitted to the Building Division for review at the time of permit application submittal. The plans must incorporate all the conditions of approval as listed in the development order and approved by the City Commission. 34. The full address of the project shall be submitted with the construction X documents at the time of permit application submittal. If the project is multi- family, then all addresses for the particular building type shall be submitted. The name of the project as it appears on the Development Order must be noted on the building permit application at the time of application submittal. 35. Sheet SP-l - Indicate the number of handicapped parking spaces for the retail X area and the residences and the total number of handicapped spaces provided. 36. Submit a floor plan for the retail, amenity, office, live/work, office/retail X areas. 37. The elevator shall comply with the 2001 FBC, Section 11-4.10.1. X 38. Submit square footage of parking garages. X 39. According to 2001 FBC, Section 11-4.1.2, "if parking spaces are provided for X COA 07/07/05 7 I II DEPARTMENTS INCLUDE REJECT self-parking by employees or visitors, or both, then accessible spaces complying with 2001 FBC, Section 11-4.6 shall be provided in each such parking area. Show accessible spaces in all areas. Comply with the 2001 FBC. (Include parallel parking.). 40. The distance of all exterior walls to adjacent buildings/property line ~ an area X of concern. The allowances set forth in the 2001 FBC, Table 600 are for the percentage of wall openings permitted. This is a life-safety issue. Submit calculations showing the percentage of wall and wall openings for this project, and clearly show the distances between the buildings. 41. All the single-story dwelling units located in the multi-family building are X "covered dwelling units" under the Florida Fair Housing Act, and thus must comply. Indicate on the plan which design option (A or B) is being used for this project and show the required clear floor space for the fixtures. 42. Sheet SP-1 - Clarify the type of construction for building #1 under the X Building Tabulation Table. There is no Type I protected construction in 2001 FBC, Chapter 6. 43. Sheet SP-l notes the parking garages occupancy as "open". This is not a X correct occupancy type. To be considered "open", the structure shall comply with all the requirements of the 2001 FBC, Section 411.3.2, 411.3.3, and 411.3.4. As designed, the garage cannot be considered "open". Indicate the correct occupancy per 2001 FBC, Chapter 3. 44. Clearly show all the setback dimensions from each building to each property X line. In addition, show the distance between each building on all four sides. All setback dimensions and distances between buildings are not shown on SP-1. 45. Clarify the number of surface parking spaces dedicated for building #1 and X building #2. A handicap accessible parking space is required in each parking area per the 2001 FBC, Section 11-4.1.2(5)(a). Also, indicate on the plans if the parking garages are strictly for the use of the residents or for both the retail/restaurant/office areas and the residents. 46. Provide the occupancy classification and construction type for the clubhouse. X Comply with 2001 FBC, Chapters 3 and 6. 47. Sheet A 1.1 - The balcony at the clubhouse shall be provided with vertical X accessibility. This is considered a "common area" and shall comply with the 2001 FBC, Section 11-4.1.3. 48. Submit a tabulation table that clearly reflects each building, number of units X in each building, the type of units (model type), number of stories in each building, and square footage per floor. COA 07/07/05 8 DEPARTMENTS INCLUDE REJECT 49. Sheet A-25 indicates a floor plan for a "new townhouse". Submit additional X information on this unit: A Model type or model number (identify units). B Which buildings will contain this structure? 50. Sheet A-6 - Indicate the number of parking spaces on each level of the X garage. 51. Sheet A-12 - The square footage for units "C" and "D I" does not correlate X with the square footage listed on Sheet SP-I. Also, identifY unit "D" as "D I " on SP-1. 52. On sheets A26-A32, your calculations for the percentage of openings are X incorrect. The percentage of openings is based upon Table 600 of the 2001 FBC and the distance separation of buildings from property lines or assumed property lines (in the case of multiple buildings on the same lot). Refer to 2001 FBC, Chapter 2 for the term "Property line, assumed", and submit correct calculations for the percentage of openings. PARKS AND RECREA nON Comments: 53. Impact Fee: X 70 single family attached units @ $771.00 each = $57,054 96 multi family units @ $656 each = $60,352 TOTAL $ 117,406 Impact fee is due prior to the issuance of the first applicable permit. FORESTER/ENVIRONMENT ALIST Comments: 54. The Landscape Architect should tabulate the total number of existing trees on X the site. The plan should indicate where the relocated trees are to be installed throughout the site. The total diameter inches of trees removed should be shown as replacement trees on the site landscape plan. These replacement trees should be shown by a separate symbol on the landscape plan sheet L-5 (Chapter 7.5, Article I Sec. 7.D.p. 2.). PLANNING AND ZONING Comments: 55. Approval of this site plan is contingent upon approval of the accompanying X request for land use amendment / rezoning (LUAR 05-005). COA 07/07/05 9 DEPARTMENTS INCLUDE REJECT 56. Approval of this site plan is subject to the approval of the proposed code X amendment (CDRV 05-011) to allow commercial uses in the PUD Planned Unit Development zoning district but with the caveat that they front on exterior or perimeter streets, when such locations are consistent with adopted redevelopment policies and plans. 57. Based on the Traffic Division's review, it has been determined that the X residential portion of the proposed mixed-use redevelopment project is located within the Coastal Residential Exception Areas of Palm Beach County, while the retail and office components generate less daily and peak hour trips than the existing retail space which is to be demolished. The project meets the Traffic Performance Standards of Palm Beach County but contingent upon the provision of a southbound exclusive right-turn lane onto the project access driveway on North Federal Highway. No building permits are to be issued after the build-out date of 2008. 58. Approval of this site plan is subject to the accompanying request for height X exception (HTEX 05-004). 59. Parking spaces required in this ordinance for one use or structure may be X allocated in part or in whole for the required parking spaces of another use or structure if quantitative evidence is provided showing that parking demand for the different uses or structures would occur on different days of the week or at different hours. Quantitative evidence shall include estimates for peak hour / peak season demand based on statistical data furnished by the Urban Land Institute or an equivalent traffic engineering or land planning and design organization (Chapter 2, Section 11.H.13.). 60. At the time of permitting, all elevation pages shall indicate the exterior X finishes, roof material, paint manufacturer's name, and color codes. Staff recommends using a color schedule (Chapter 4, Section 7.D.). Also, provide color swatches and awning samples. 61. Fifty percent (50%) of all site landscape materials must be native species X (Chapter 7.5, Article n, Section 5.P). Please categorize as follows: Shade trees, Palm trees, Shrubs & Groundcover. 62. All trees, if proposed as trees, must be at least 12 feet in height and three (3) X caliper inches at the time of their installation (Chapter 7.5, Article II, Section 5.C.2.). This applies to Tree Ligustrum. 63. Staff recommends that a master sign program be provided that shows the X number, location, dimensions, exterior finish, and color(s) of all signs (Chapter 2, Section 5.H.9.). The sign program would address all types of SignS, including commercial wall signs, identification signs, residential subdivision signs, freestanding monument signs, canopy signs, way-finding signs, directional signs, and all other signs as regulated by Chapter 21 of the Land Development Regulations. COA 07/07/05 10 DEPARTMENTS INCLUDE REJECT 64. At the time of permitting, the detail of the typical outdoor freestanding X lighting fixture must include the proposed color. The applicant informed staff that the color will be black. 68. All plant material proposed outside the property line must be excluded from X the plant list m terms of meeting the rmmmum required landscape requirement. Revise plant list at the time of permitting. 69. The common areas shall be maintained by an established association. Provide X documents to confirm same. 70. Staff recommends substituting the Pigeon Plum trees with Florida Royal palm X trees at the main entrance drive, where the angled street parking spaces. The heights of these trees shall not conflict with the freestanding outdoor lighting poles. 71. Staff originally recommended that the site plan provide a full-size clubhouse / X recreation building within the townhouse portion of the development, in part, to accommodate homeowner association meetings. However, the developer informed staff that the meeting rooms (proposed within Building I) could accommodate the townhouse owner association meetings and that the townhouse owners would be authorized to use the meeting rooms once per month for their association meetings. This is acceptable to staff and therefore, the condominium documents should reflect this intention. ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY COMMENTS: Comments: 72. None X ADDITIONAL CITY COMMISSION COMMENTS: Comments: 73. To be determined. MWR/elj S:\PlanningISHAREDlWP\PROJECTS\Heritage Club @ Boynton BeachlNWSP 05-014\COA.doc DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: Heritage Club AGENT: Mr. Michael Weiner, Esquire I Weiner & Aronson, P.A. AGENTS ADDRESS: 102 North Swinton Avenue Delray Beach, FL 33444 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: August 2, 2005 TYPE OF RELIEF SOUGHT: Request New Site Plan approval in order to construct 70 townhouse units, a four (4 )-story mixed-use building consisting of 84 dwelling units, 3,500 square feet of restaurant, 4,100 square feet of retail, and 5,164 square feet of office. The site plan also includes another four (4) -story mixed-use building consisting of 12 dwelling units, 5,394 square feet of retail, and 1,380 square feet of office, all of which, are proposed on an 8.302-acre parcel zoned PUD Planned Unit Development. LOCATION OF PROPERTY: Northwest corner of the intersection of Federal Highway and Gulfstream Boulevard DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO. X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida appearing on the Consent Agenda on the date above. The City Commission hereby adopts the findings and recommendation of the Community Redevelopment Agency Board, which Board found as follows: OR THIS MATTER came on to be heard before the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the relief sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: 1. Application for the relief sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. 2. The Applicant HAS HAS NOT established by substantial competent evidence a basis for the relief requested. 3. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "C" with notation "Included". 4. The Applicant's application for relief is hereby _ GRANTED subject to the conditions referenced in paragraph 3 hereof. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other DATED: City Clerk S;\PlaJUljng'SHAREO\WP\PROJECTS\Heritage Club@ Boynton Beach'NWSP 05-014\DO.doc Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 New Site Plan 2. Project: Heritage Club at Boynton Beach (NWSP 05- 014) Michael Weiner, Esquire, Weiner & Aronson, P .A. Thirty Six Hundred Holdings, llC 3629 South Federal Highway Request New Site Plan approval in order to construct 70 townhouse units, a four (4)-story mixed-use building consisting of 84 dwelling units, 3,500 square feet of restaurant, 4,100 square feet of retail, and 5,164 square feet of office. The site plan also includes a three (3)-story mixed-use building consisting of 12 dwelling units, 5,394 square feet of retail, and 1,380 square feet of office, all of which are proposed on an 8.302-acre parcel zoned Planned Unit Development (PUD) Agent: Owner: Location: Description: Heiaht Exception 3. Project: Heritage Club at Boynton Beach (HTEX 05- 004) Jason S. Mankoff, Weiner & Aronson, P.A. Thirty-Six Hundred Holdings, lLC Northwest corner of the intersection of Federal Highway and Gulfstream Boulevard Request for a height exception of 10 feet pursuant to the City's land Development Regulations, Chapter 2, Zoning, Section 4.F.2, to allow the decorative towers to be 55 feet in height, a distance of 10 feet above the 45-foot maximum height allowed in the (PUD) Planned Unit Development zoning district. Agent: Owner: Location: Description: All three Heritage Club items were heard simultaneously, since they were integral to the rezoning request. Dick Hudson, Senior Planner, reported that the subject property was currently classified as Local Retail Commercial and zoned Community CommerdaJ. The request is to change the Future land Use Map to Special High Density Residential and rezone to Planned Unit Development for the purpose of building a Mixed Use project containing slightly less than 20K sq. ft. of commercial space, which includes office, retail, and restaurant space. There are 160 multi-family residential units. Staff recommends approval for the following reasons: o The proposed land use amendment and rezoning are consistent with the applicable Comprehensive Plan policies and also meet the review criteria required for the land Development Regulations. o The project will replace an antiquated and declining strip commercial center with a mixed-use project that will be an aesthetic and physical improvement at the aty's southern gateway. 7 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 o The project supports the "Eastward Ho" Initiative, which emphasizes redevelopment of the coastal area where infrastructure is already in place as opposed to encouraging development patterns in the suburban areas to the west. o The project proposes a sizeable number of residential units in a variety of sizes and styles, with a commercial portion designed to provide a year-round customer and employment base, which supports the revitalization of the downtown, Eric Johnson, Planner, displayed a map that showed the townhouse buildings on the west side and two mixed-use buildings along Federal Highway. The property in the southeast corner was not part of the project. The office square footage is 6,544 sq. ft. The retail square footage is 9,494 sq. ft. Restaurant area is 3,500 sq. ft. There would be 70 townhouse units and 96 multi-family units. The project meets the Traffic Performance Standards of Palm Beach County, contingent upon the dedication of a right-turn lane into the development from North Federal Highway. Staff reviewed the project for concurrency with respect to potable water, sanitary sewer, Police/Fire, drainage, and school and all conditions were met. There are three points of ingress and egress, two on Federal Highway and a third on Gulfstream Boulevard. Mr. DeMarco asked Mr. Johnson if the entrances to the property were one-way or two-way, and Mr. Johnson explained the configuration of the different ingresses and egresses. Ms. Horenburger asked how people coming from the west on Gulfstream Boulevard would access the property. The response was that they would have to go north on Federal Highway and make a U-turn. She asked if there were a plan for a U-turn lane and the response was affirmative. There is no ingress from Gulfstream Boulevard. Chair Heavilin inquired about which parking garage the residents would use. Mr. Johnson said that any shared parking would occur in Building 2. Staff had reviewed the shared parking aspect of the project and technically, it met the requirements with parking spaces to spare. However, the applicant had to make the owners aware that they would only have one parking spot. Parking spaces cannot be designated for just one use in a shared parking scenario. Ms. Horenburger believed that no parking spot would be designated for the residents and requested clarification. Mr. Johnson elaborated, saying shared parking occurred in Buildings 1 and 2, but the restaurant users would only have access to the parking garage in Building 2. Persons living in Building 1 would have access to a space in the parking garage in Building 1. People in Building 2 would also have access to a space in Building 2, except that during peak times, there would probably not be any guest type spaces. Vice Chair llllman inquired whether there would be a bottleneck at the turnaround at the end of the main drive aisle. Mr. Johnson responded that the City's Engineering Department had reviewed it for turning movements and radii and found no problem. Mr. Johnson stated that the applicant had been made aware of the shared parking restrictions and he thought the applicant would be willing to put this in the Homeowners Association documents. Ms. Horenburger wanted to make awareness of the parking restriction by the residents a condition of approval. 8 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 Jason Mankoff affirmed that they were going to designate twelve of the parking spaces in Building 2 for the twelve units in that Building. Also, they would have documentation in the contract advising buyers that they would only be guaranteed one space. Mr. Johnson reviewed the Height Exception. The buildings comply with Code, but there are some decorative elements that exceed the forty-five foot height maximum height in a PUD. However, the features of the building that exceed the height limits are interesting and make the whole project "work. 11 Staff felt that the proposed project was good for the City and recommended approval of the Height Exception and Site Plan. Chair Heavilin invited the CRA Planner to add her comments at this time. She thought this should become a regular feature in future hearings. Vivian Brooks, CRA Planner, had participated in the Technical Review Committee. In spite of having to work around the use on the southeast corner, the applicant had hidden the garages and actively addressed Old Dixie Highway, Gulfstream Boulevard, and Federal Highway. All the townhouses connect with walkways to the sidewalks. They were going to create a community that would, hopefUlly, set the trend for the rest of Old Dixie Highway and the other projects that will occur in that area. She thought the project was interesting architecturally, with no long, unbroken expanses. They had done a good job and she recommended approval of the project. Mr. Fenton asked Ms. Brooks to comment on the architectural value of the features that called for the Height Exception. Ms. Brooks said the features added value to the project to a focal gateway project in the south. To have something that stands out architecturally was what the City had been looking for on its gateways. The applicants for the project on Woolbright Road and Federal Highway were asked to bring that project up in height. She personally liked it. Mr. DeMarco inquired whether the project would have security and protection from surrounding uses, particularly the one to the southeast. Ms. Brooks responded that the community was protected visually and physically since an actual physical structure, Building 2, separated them. Jason Mankoff of Weiner & Aronson, P.A., 209 N. Seacrest BOUlevard, Boynton Beach, spoke as agent for the project. Robert Mathias, David Biggs, and J. P. DiMisa, principals with the developer, New Century Companies, were present along with Jim Knight, prindpal of Thirty-six Holdings, the current owner of the property and Stuart Debowsky and Jose Samuel with MSA Architects. Jeffrey Schnars, President of Schnars Engineering, and Hugh Johnson, landscape architect with Architects Alliance, were in attendance as well. Mr. Mankoff distributed a booklet summary of the project to the board members and showed visual renderings of the Site Plan to the board and to the audience. Mr. Mankoff stated that this project was very similar to a successful project they had completed in Delray Beach. Stuart Debowsky, project manager of MSA Architects, said they were proud to present this project to the City. This is a mixed-use project that has 96 condominium units, 84 of which are in Building 1. The residents in Building 1 have exclusive use of the parking spaces and Building 2 only has 12 residential units. There are three-story townhouses with 70 units to the west. They had tried to put together a project resembling a village. The east-west road was meant to simulate a "main street" concept, with angled parking and a large pedestrian arcade. The applicant is planning a cafe concept for the corner of Building 1 in support of a theme of street activity, both 9 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 day and night. They were considering townhouse models with two "fronts," so they would not have to present their "back" to Old Dixie Highway. They hoped that all the elements they were putting together would be reminiscent of a village that had come together over a period of years. Ms. Horenburger asked what they had done to screen the uses to the north of the project. She had been told there would be a parking garage between the residential and that area and it appears the residences would be facing it. Stuart Debowsky said that it was a tough site on all sides: cars on Federal Highway, the train on Old Dixie Highway, the use to the southeast, and the storage facility on the north. They had created an access/service road as an adequate buffer. The first unit occurs thirty to forty feet from the edge of that. Special care had been taken to screen the property on all sides with landscaping, but especially on the northern boundary. They felt the actual living spaces were set well apart from the northern border. Mr. DeMarco asked why they had chosen the name Heritage Club. Mr. Mankoff responded that there were other Heritage Clubs in Delray Beach and it was like a brand name. In regard to the property to the south, if they were able to acquire it, they could possibly have a Phase II. Mr. DeMarco then asked about the price ranges of the units. Robert Mathias, New Century Companies, said the condo building would have one, two, and three bedrooms and they would be between $200-400K and the townhouse units would be between $400-S00K. Mr. Fenton questioned what kind of noise buffering the developer had in mind for the units next to the railroad tracks. Mr. Mathias responded they were going to use landscaping and building materials that would provide an amazing amount of sound insulation. They had developed two projects close to railroad tracks and they had not had any issues. Jose Samuels, MSA Architects, commented that the taller features helped to create visual appeal for the project. Most main streets did not have long buildings with flat tops, but ones of varying heights. Marie Horenburger asked staff whether additional density or height would be involved if the developer were able to obtain the parcel on the southeast corner. She thought this might occur since the property owner to the southeast was asking an exorbitant amount of money, additional incentives might be involved. Mike Rumpf, Planning & Zoning Director, stated that this project had come in under the current land use and zoning scheme - it solved the problems. To go outside that, because the developer was at those thresholds, would exceed what the system allows and would be inconsistent with the Corridor Plan. Prior proposals were well above the current thresholds. Ms. Horenburger thought it would be nice to have a more cohesive site as the entrance to the City. Mr. Mankoff stated the applicant agreed to all 71 conditions of approval. He praised staff for their assistance and cooperation in the planning of this important, gateway project. The applicant added two conditions based on the discussions at this meeting: 1) designate twelve spaces for the condominium owners, and 2) provide notice in the condo documents or in the contract at the time of signing that each of the individual owners would only be guaranteed one space. They believed that the height was important for the project and that they had met all the requirements for such a request. 10 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 Chair Heavilin opened the floor to the public, and closed it when no one wished to speak. Mr. Fenton took issue with the passive voice in some of the Conditions of Approval, pointing out item 1 that asks: "Please indicate number and size of containers." He felt that a more declaratory or dictatorial tone was in order. Mr. Johnson responded that staff was confident that all the conditions would be met and if not, permits would not be issued. Staff felt that it had protected the City with the Conditions of Approval. A large number of the conditions had already been satisfied. Mr. DeMarco confirmed with the agent that the applicants were in agreement with all 71 Conditions of Approval and were adding two more. He expressed appreciation for what the developers had done for that corner of the City. Mr. Johnson declared that staff agreed with the two new conditions of approval suggested by the applicant. Motion Ms. Horenburger moved to amend the Comprehensive Plan Future land Use Map from local Retail Commercial to Special High Density Residential (WAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0. Motion Ms. Horenburger moved to approve the request to rezone from C-3 Community Commercial to PUD Planned Unit Development (WAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0. Motion Ms. Horenburger moved to approve the Site Plan approval for the Heritage Club at Boynton Beach (NWSP 05-014) subject to all 73 Conditions of Approval. Mr. Fenton seconded the motion. Chair Heavilin commented that the applicant had raised the bar for development in Boynton Beach. She thought it was the best project the board had seen. Mr. Mankoff commended City staff for its efforts. The motion passed 5-0. Motion Mr. Fenton moved to approve the request for height exception of 10 feet for Heritage Club of Boynton Beach (HTEX 05-004). Vice Chair Tillman seconded the motion that passed 5-0. C. New Site Plan 1. Project: Neelam (fka Schnars) Business Center (NWSP 05-022) J. Ernest Brady, Stephen James Inc. Anand D. Patel (Contract Purchaser) 924 N. Federal Highway Request for Site Plan approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use low (MU-L) zoning district. Agent: Owner: location: Description: Ed Breese, Principal Planner, stated that this property had changed hands and the site plan approval expired. The new owner would like to build the same building as previously approved. 11 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORLvl VIII.-PUBLIC HEARING ITEM B.2 Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office I?SI August 2, 200S July 18, 200S (Noon.) D October S, 200S September 19, 200S (Noon) D August 16, 200S August 1, 200S (Noon) D October 18, 200S October 3, 200S (Noon) D September 6, 200S August IS, 200S (Noon) D November 1, 200S October 17, 200S (Noon) D September 20, 200S September 6, 200S (Noon) D November IS, 200S October 31, 2005 (Noon) D Administrative D Development Plans . . NATURE OF I?SI Consent Agenda D New Business r~ -:. --i ~.- --<~ AGENDA ITEM D Public Hearing D Legal D Bids D Unfinished Business CC) G~' Ie:.::, D Announcement D Presentation .~ D City Manager's Report '- '._.~ --- ...0..- L..,_~ ~-~--. '~~01 RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Consent:. r:~ S Agenda. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12, ::c 2005. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-119. EXPLANATION: PROJECT: AGENT: OWNER: LOCATION: DESCRIPTION: Heritage Club @ Boynton Beach (HTEX 05-004) Jason S. Mankoff, Weiner & Aronson, P.A. Thirty Six Hundred Holdings, LLC Northwest comer of the intersection of Federal Highway and Gulfstream Boulevard Request for a height exception of 10 feet pursuant to the City's Land Development Regulations, Chapter 2, Zoning, Section 4.F.2, to allow the decorative towers to be 55 feet in height, a distance of 10 feet above the 45-foot maximum height allowed in the (PUD) Planned Unit Development zoning district. PROGRAM IMPACT: N/A FISCAL IMPACT: N/ A ALTERNATIVES: N/A D'VelOP~' IJ~ ~ Planning and Z' irector City Attorney / Finance / Human Resources S:\P1anning\SHAREDlWP\PROJECTS\Heritage Club @ Boynton Beach\HTEX OS-004\Agenda Item Request Heritage Club HTEX OS-004 8-2-0S.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC TO: THROUGH: FROM: DATE: PROJECT: REQUEST: DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 05-119 Chair and Members Community Redevelopment Agency Board Michael Rumpf Director of Planning and Zoning Eric Lee Johnson, AICP Planner (f July 6, 2005 Heritage Club / HTEX 05-004 Height Exception of 15 feet for decorative tower features on the mixed-use buildings Property Owner: Applicant: Agent: Location: Existing Land Use: Existing Zoning: Proposed Land Use: Proposed Zoning: Proposed Uses: Acreage: Adjacent Uses: PROJECT DESCRIPTION Thirty Six Hundred Holdings, LLC New Century Companies, LLC and Thirty Six Hundred Holdings, LLC Mr. Jason S. Mankoff / Weiner & Aronson, P,A. Northwest corner of the intersection of Federal Highway and Gulfstream Boulevard (Exhibit "AfT) Local Retail Commercial (LRC) Community Commercial (C-3) Special High Density Residential PUD Planned Unit Development Office: Retail: Restaurant: Residential: 6,544 square feet 9,494 square feet 3,500 square feet 70 townhouse units 96 multi-family units :t8.302 acres North: Developed property (self-service storage) designated Local Retail Commercial and zoned C-3 Community Commercial; Page 2 Memorandum No. PZ 05-119 South: Developed outparcel (adult entertainment) designated Local Retail Commercial and zoned C-3 Community Commercial, then the right-of-way of Gulfstream Boulevard, then developed commercial (fast-food and office building) designated Local Retail Commercial and zoned C-3 Community Commercial; East: Right-of-way of Federal Highway then undeveloped property in the Town of Gulfstream designated Recreation and zoned OR Outdoor Recreation; and West: Rights-of-way of Old Dixie Highway and the Florida East Coast Railroad, then vacant property in Palm Beach County designated MR-5 (5 du/ac) and zoned RS- Single-family Residential. BACKGROUND Mr. Jason S. Mankoff, agent for the property owner (Thirty Six Hundred Holdings, LLC) is requesting to develop a mixed-use project. The survey shows that the subject property is currently developed with a one (l)-story shopping center and related parking areas. The intent is to raze the existing shopping center and redevelop the site with 13 townhouse buildings and two (2) mixed-use buildings, including their interior parking garages. Approval of this project is contingent upon the approval of the accompanying request to amend the Future Land Use Map and rezone (LUAR 05-005) the property from Community Commercial (C-3) to Planned Unit Development (PUD). The PUD zoning district allows a maximum height of 45 feet. The townhouse buildings would be three (3) stories tall and would both require approval of a height exception. However, the mixed-use buildings (Buildings 1 and 2) would have portions of their structures that exceed the district's maximum height threshold of 45 feet. The elevations show that several decorative towers would reach as high as 60 feet in height. Therefore, approval of the accompanying site plan (NWSP 05-014) is contingent upon approval of this request for height exception. ANALYSIS The property is currently zoned C-3. The C-3 zoning district allows for a maximum building height of 45 feet. As previously mentioned, the applicant is concurrently requesting to rezone the property to PUD. Part of the justification to rezone to PUD is to support and stimulate revitalization efforts in the city's Community Redevelopment Agency area. Staff recognizes that a viable downtown and surrounding areas would have a mixture of uses with higher residential densities. The proposed mixed use project will serve to revitalize the southern "gateway" to the City. The project proposes 166 residential units in a variety of sizes and styles, while the commercial portion is designed to provide a year-round customer and employment base. Land Development Regulations, Chapter 2, Zoning, Section 4.F.3, Height Limitations and Exceptions, states that in considering an application for exception to the district height regulation, the City Commission shall make findings indicating the proposed exception has been studied and considered in relation to minimum standards, where applicable. The citywide maximum height of 45 feet would generally limit a typical building to four (4) stories. The PUD zoning district allows for a maximum building height of 45 feet. It should be noted that both mixed-use buildings meet code as it relates to building height because their roof level would be 41 feet in height and the top of the parapet wall would be 46 feet in height. The parapet wall may exceed the 45-foot threshold only if the wall itself is five (5) feet or less in height. The elevations of the mixed-use buildings (Building 1 and Building 2) show that Page 3 Memorandum No. PZ 05-119 portions of both buildings exceed the 45-foot threshold. However, these appurtenances are eligible to be considered for the height exception request. Decorative towers (cupolas) are the types of building appurtenances that may exceed the zoning district's height limitation and be eligible for height exception review. In this case, the top of several decorative towers are proposed at 60 feet in height. However, the aforementioned structures would account for only a small percentage of the entire roofline. In fact, according to the applicant, the decorative towers would account for approximately :f:10% of the entire roof area of the mixed-use buildings. This figure becomes significantly lower when the roof areas of the townhouse buildings are factored into the equation. According to the applicant, the height exception is necessary, as a means of breaking up the horizontal massing of the buildings with minor (uninhabitable) vertical elements. The enhanced quality of these buildings is achieved by the inclusion of these elements. Allowance of these heights would not severely reduce light and / or air in the adjacent areas. The applicant claims that the height exception would not adversely effect property values in adjacent areas or adversely influence the living conditions in neighboring communities. Staff concurs, Granting of this height exception does not constitute a special privilege to the current property owner. RECOMMENDATION In the accompanying reports, staff is recommending approval of the site plan and request to rezone to the PUD zoning district. As to the issue of height, staff recommends approval of the height exception request of 15 feet. This would allow the top of the decorative towers to be designed at 60 feet in height. Any conditions recommended by the Board or City Commission would be placed in Exhibit "C" - Conditions of Approval. S:IPlanningISHAREDlWPIPROJECTSIHeritage Club @ Boynton BeachlHTEX OS-004IStaff Report,doc LOCATION MAP Heritage Club @ Boynton Beach Exhibit A /I) .... E .- ..., ~ (j oJ c( z Q D: c( 200 100 o 200 Feet N A " EXHIBIT B ~-" ,,~t,~ ~- - - \ (l;_:.-:~.c>cc~>ft ~l- -- ~__.__ __"~ IH -->-. ' .-.... ;\~~~;; i. ,'>'_".'1 > ._- " , ,. .. .JJr ' ,,:: ..L_c,.o\r. " ", lif~ ~~ 'I~;'~~~;'C\:;S;C-~~~"~' _ ' l'r.1~"(:"" ~"rM ~-:A ~ /-.JJ II ~.::s::~:c~~~' - ,,\ "'" :,,,.,."~" ".., 0 diM- .- '--- ) 'I 1 ,>-, : I \ " ~v r;;;'J '~.~ '0 ",F;IJJ. C' ',,' 'C" _ ,~d ,~:)i, ~l~TI =t :' "" rr - ::-t'- "t':5 -=t_ __!:l - ~r-: ,~ '," (j) :__\; / ',:"':'7; ~ ~:,~ ~J-~)/r~~ ~~~--m~~-~ ~- u~-.::~ ,ii, ! 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'~I ~ q~'1 ~ EXHIBIT B r,; ~'-11! .~-l]]- ~ ~ J~ .4 ~ ~ '\ ~~ L- . 4'_ \ ~ ,I \1 - , "I rtft MSI\ ia'iC:: HHmAGS=UB \ I I ARCHITECTS ::-..:::-" ~- ARCHlTECnJRE lie PL>>lNlNG New Ccn4uIy ~ -.---- ::..:-..:c-~~_=.._:..~~~..:..--=-..-~..::.::;t:".. !!l . ~ EXHIBIT B l" ~ ~ i ~. 0 dJ ~ ~ ~ ,We ~p n (Q) t!J ~ 0 , {I ~ [- -OIn' H'. --",1 -- ~ Q \ -. . '.,.l .L-~'~=- ~ i t~ .! l J ~! ~~rr Nt MS/\ --- =1:.--' HERITAGE CLUB MCHfTECTS . ~..>>.- ~Bcach ARClinrCTURE a: PlANNING New Ccnlury Companjes ----- __..%-_.._.._.~":...::-.~~-...::--_~~ :=.:::::i::" - .._~_...- . . - ..--- m < '-."-,:,.~.,,,-~.~ 6 EXHIBIT B . I~ w~ j .,.~ - ~ -I' ~n ~,' J'~ .IS: . .., .." . \: : \ "' I . "'- . 'I \1 I J~ .' \ \1 I ~ .! mm / M Nt ~=- S/\ =.:::- N'. HERITA.GE CLUB \ I~ AACHTECTS ::",..::.:;-" ~BeocII g ARCKI[ClUR[ 6: PlANNING NewCarIUry~ ----- :.:"..:::z:.--;:-~-:.":..~~-==--:'*..:""_~:;.'::.=..."'=:a....~..::.::eo.. _ ~ ;1 ~ :g 1IU p ~ ~ n :(Q) ~ ~ : ..~- .~- -'.~' .~~ ~ /- , ~ ,'!HI ,~ I ~ ~l ~ .~ ' ~ , I <: 'l. 'i~ l !~ '""-<:r ---J .~ I q> I ! . r1Jil I: r-;r .- ~~~ ~~~ii&~!e l.'!RI . I~' Ei lIil ~AI~a~o ~ 0,. iz! jB i~a :~JlI.I~ 1)>, ft al. ~5~~ m . "I 'Zl 5a U ~~.h a ~ 'i!1 ),-<i II rll~1 ~llrn I 1IU I II 1 :~i r I II di $ " ,,' " ,. ,. ~J ~f~1 i ~ Ii! I~ Ii; (Q)~ '\rrrr- '.~- H- I '''''l~I-t:, . Il~~ ~ l i , ~I , ~. . . ,t. '~\,j~ r-JJ1~- ~ , ~ 0 1 ~ . t d 'i--- - . t <: _ 'l. ~~ ! ~ \ I ~ ~ "'"-- .. . ., .., L- ,_..,~ J ' ~ . P "\ O : q! tL <:.. t, J \5 ~ -- 4~'_ ~ i i ~ itf I !W ~ ~ ~Irr EXHIBIT B r----------.., I r"--rH: ~_. -~ ~-~l- ~ ~,~ .' i ~~ 1 ~ t~ ~, l ._~~~_"...._ 'i~ .! _ q l ~ ~ I -------' ,rMl ~ t~ un ~ n~ (Q) ., ~ ~ 0 MSI\ -_NO ~ ... ---. H~TA=CWB -.. =~,.IoI'_ ~Beach ~ I\RCHTECTS - -. Newc..m.:;~ ARCHfI[CTURE at PlANNING ._-~~-..._-- - -.....- ......,.. - '" ~.:::-_.._..___.._-:s..:;:~_,.._~..._..__ < - ~-......-- EXHIBIT B' I' ,~ 'I ;1 !~ ,t'l I n [Q) ~ I!l 0 rj-j~r~:.. . . . . .f., . .. ~" I ~.. ~ \~: r ,,- l' f" ~I I I =~IC. =~.-. -- HERITAGE CLUB ~- .. New CcIltUly CGmpaaies ~ ~ EXHIBIT "e" Conditions of Approval Project name: Heritage Club File number: HTEX 05-004 Reference: Elevations dated June 14,2005 DEPARTMENTS INCLUDE REJECT PUBLIC WORKS Comments: None X UTILITIES Comments: None X FIRE Comments: None X POLICE Comments: None X ENGINEERING DIVISION Comments: None X BUILDING DIVISION Comments: None X I Comments: None PARKS AND RECREATION I I I X FORESTER/ENVIRONMENT ALIST Comments: None X PLANNING AND ZONING Comments: None X ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY COMMENTS: Comments: 1. None X Page 2 Heritage Club File No.: HTEX 05-004 DEPARTMENTS INCLUDE REJECT ADDITIONAL CITY COMMISSION COMMENTS: Comments: 2. To be determined. S:IPlanning\SHAREDlWPIPROJECTSlBoynlon LoftsIHTEX 05-00I\COA.doc DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: Heritage Club AGENT: Mr. Jason S. Mankoff / Weiner & Aronson, P.A. AGENT'S ADDRESS: 102 North Swinton Avenue De/ray Beach, FL 33444 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: August 2,2005 TYPE OF RELIEF SOUGHT: Request a 15-foot height exception for a mixed-use project on an 8.302- acre parcel in the Planned Unit Development (PUD) zoning district. LOCATION OF PROPERTY: Northwest corner of the intersection of Federal Highway and Gulfstream Boulevard DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO. X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida appearing on the Consent Agenda on the date above. The City Commission hereby adopts the findings and recommendation of the Community Redevelopment Agency Board, which Board found as follows: OR TH/S MATTER came on to be heard before the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the relief sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: 1. Application for the relief sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. 2. The Applicant HAS HAS NOT established by substantial competent evidence a basis for the relief requested. 3. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "C" with notation "Included". 4. The Applicant's application for relief is hereby _ GRANTED subject to the conditions referenced in paragraph 3 hereof. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other DATED: City Clerk SIPlanninglSHAREDI WPIPROJECTSIHeritage Club@ Boynton BeachIHTEX 05-004\OO.ooc Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 New Site Plan 2. Project: Heritage Club at Boynton Beach (NWSP 05- 014) Michael Weiner, Esquire, Weiner & Aronson, P.A. Thirty Six Hundred Holdings, LLC 3629 South Federal Highway Request New Site Plan approval in order to construct 70 townhouse units, a four (4)-story mixed-use building consisting of 84 dwelling units, 3,500 square feet of restaurant, 4,100 square feet of retail, and 5,164 square feet of office. The site plan also includes a three (3)-story mixed-use building consisting of 12 dwelling units, 5,394 square feet of retail, and 1,380 square feet of office, all of which are proposed on an 8.302-acre parcel zoned Planned Unit Development (PUD) Agent: Owner: Location: Description: Heiaht Exception 3. Project: Heritage Club at Boynton Beach (HTEX 05- 004) Jason S. Mankoff, Weiner & Aronson, P .A. Thirty-Six Hundred Holdings, LLC Northwest corner of the intersection of Federal Highway and Gulfstream Boulevard Request for a height exception of 10 feet pursuant to the City's Land Development Regulations, Chapter 2, Zoning, Section 4.F.2, to allow the decorative towers to be 55 feet in height, a distance of 10 feet above the 45-foot maximum height allowed in the (PUD) Planned Unit Development zoning district. Agent: Owner: Location: Description: All three Heritage Club items were heard simultaneously, since they were integral to the rezoning request. Dick Hudson, Senior Planner, reported that the subject property was currently classified as Local Retail Commercial and zoned Community Commercial. The request is to change the Future Land Use Map to Special High Density Residential and rezone to Planned Unit Development for the purpose of building a Mixed Use project containing slightly less than 20K sq. ft. of commercial space, which includes office, retail, and restaurant space. There are 160 multi-family residential units. Staff recommends approval for the following reasons: o The proposed land use amendment and rezoning are consistent with the applicable Comprehensive Plan policies and also meet the review criteria required for the Land Development Regulations. o The project will replace an antiquated and declining strip commercial center with a mixed-use project that will be an aesthetic and physical improvement at the City's southern gateway. 7 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 o The project supports the "Eastward Ho" Initiative, which emphasizes redevelopment of the coastal area where infrastructure is already in place as opposed to encouraging development patterns in the suburban areas to the west. o The project proposes a sizeable number of residential units in a variety of sizes and styles, with a commercial portion designed to provide a year-round customer and employment base, which supports the revitalization of the downtown. Eric Johnson, Planner, displayed a map that showed the townhouse buildings on the west side and two mixed-use buildings along Federal Highway. The property in the southeast corner was not part of the project. The office square footage is 6,544 sq. ft. The retail square footage is 9,494 sq. ft. Restaurant area is 3,500 sq. ft. There would be 70 townhouse units and 96 multi-family units. The project meets the Traffic Performance Standards of Palm Beach County, contingent upon the dedication of a right-turn lane into the development from North Federal Highway. Staff reviewed the project for concurrency with respect to potable water, sanitary sewer, Police/Fire, drainage, and school and all conditions were met. There are three points of ingress and egress, two on Federal Highway and a third on Gulfstream Boulevard. Mr. DeMarco asked Mr. Johnson if the entrances to the property were one-way or two-way, and Mr. Johnson explained the configuration of the different ingresses and egresses. Ms. Horenburger asked how people coming from the west on Gulfstream Boulevard would access the property. The response was that they would have to go north on Federal Highway and make a U-turn. She asked if there were a plan for a U-turn lane and the response was affirmative. There is no ingress from Gulfstream Boulevard. Chair Heavilin inquired about which parking garage the residents would use. Mr. Johnson said that any shared parking would occur in Building 2. Staff had reviewed the shared parking aspect of the project and technically, it met the requirements with parking spaces to spare. However, the applicant had to make the owners aware that they would only have one parking spot. Parking spaces cannot be designated for just one use in a shared parking scenario. Ms. Horenburger believed that no parking spot would be designated for the residents and requested clarification. Mr. Johnson elaborated, saying shared parking occurred in Buildings 1 and 2, but the restaurant users would only have access to the parking garage in Building 2. Persons living in Building 1 would have access to a space in the parking garage in Building 1. People in Building 2 would also have access to a space in Building 2, except that during peak times, there would probably not be any guest type spaces. Vice Chair Tillman inquired whether there would be a bottleneck at the turnaround at the end of the main drive aisle. Mr. Johnson responded that the City's Engineering Department had reviewed it for turning movements and radii and found no problem. Mr. Johnson stated that the applicant had been made aware of the shared parking restrictions and he thought the applicant would be willing to put this in the Homeowners Association documents. Ms. Horenburger wanted to make awareness of the parking restriction by the residents a condition of approval. 8 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 Jason Mankoff affirmed that they were going to designate twelve of the parking spaces in Building 2 for the twelve units in that Building. Also, they would have documentation in the contract advising buyers that they would only be guaranteed one space. Mr. Johnson reviewed the Height Exception. The buildings comply with Code, but there are some decorative elements that exceed the forty-five foot height maximum height in a PUD. However, the features of the building that exceed the height limits are interesting and make the whole project "work." Staff felt that the proposed project was good for the City and recommended approval of the Height Exception and Site Plan. Chair Heavilin invited the CRA Planner to add her comments at this time. She thought this should become a regular feature in future hearings. Vivian Brooks, CRA Planner, had participated in the Technical Review Committee. In spite of having to work around the use on the southeast corner, the applicant had hidden the garages and actively addressed Old Dixie Highway, Gulfstream Boulevard, and Federal Highway. All the townhouses connect with walkways to the sidewalks. They were going to create a community that would, hopefully, set the trend for the rest of Old Dixie Highway and the other projects that will occur in that area. She thought the project was interesting architecturally, with no long, unbroken expanses. They had done a good job and she recommended approval of the project. Mr. Fenton asked Ms. Brooks to comment on the architectural value of the features that called for the Height Exception. Ms. Brooks said the features added value to the project to a focal gateway project in the south. To have something that stands out architecturally was what the City had been looking for on its gateways. The applicants for the project on Woolbright Road and Federal Highway were asked to bring that project up in height. She personally liked it. Mr. DeMarco inquired whether the project would have security and protection from surrounding uses, particularly the one to the southeast. Ms. Brooks responded that the community was protected visually and physically since an actual physical structure, Building 2, separated them. Jason Mankoff of Weiner & Aronson, P.A., 209 N. Seacrest Boulevard, Boynton Beach, spoke as agent for the project. Robert Mathias, David Biggs, and J. P. DiMisa, principals with the developer, New Century Companies, were present along with Jim Knight, principal of Thirty-six Holdings, the current owner of the property and Stuart Debowsky and Jose Samuel with MSA Architects. Jeffrey Schnars, President of Schnars Engineering, and Hugh Johnson, landscape architect with Architects Alliance, were in attendance as well. Mr. Mankoff distributed a booklet summary of the project to the board members and showed visual renderings of the Site Plan to the board and to the audience. Mr. Mankoff stated that this project was very similar to a successful project they had completed in Delray Beach. stuart Debowsky, project manager of MSA Architects, said they were proud to present this project to the City. This is a mixed-use project that has 96 condominium units, 84 of which are in Building 1. The residents in Building 1 have exclusive use of the parking spaces and Building 2 only has 12 residential units. There are three-story townhouses with 70 units to the west. They had tried to put together a project resembling a village. The east-west road was meant to simulate a '~main street" concept, with angled parking and a, large pedestrian arcade. The applicant is planning a cafe concept for the comer of Building 1 in supPort of a theme of street activity, both 9 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 day and night. They were considering townhouse models with two "fronts," so they would not have to present their "back" to Old Dixie Highway. They hoped that all the elements they were putting together would be reminiscent of a village that had come together over a period of years. Ms. Horenburger asked what they had done to screen the uses to the north of the project. She had been told there would be a parking garage between the residential and that area and it appears the residences would be facing it. Stuart Debowsky said that it was a tough site on all sides: cars on Federal Highway, the train on Old Dixie Highway, the use to the southeast, and the storage facility on the north. They had created an access/service road as an adequate buffer. The first unit occurs thirty to forty feet from the edge of that. Special care had been taken to screen the property on all sides with landscaping, but especially on the northern boundary. They felt the actual living spaces were set well apart from the northern border. Mr. DeMarco asked why they had chosen the name Heritage Club. Mr. Mankoff responded that there were other Heritage Clubs in Delray Beach and it was like a brand name. In regard to the property to the south, if they were able to acquire it, they could possibly have a Phase II. Mr. DeMarco then asked about the price ranges of the units. Robert Mathias, New Century Companies, said the condo building would have one, two, and three bedrooms and they would be between $200-400K and the townhouse units would be between $400-S00K. Mr. Fenton questioned what kind of noise buffering the developer had in mind for the units next to the railroad tracks. Mr. Mathias responded they were going to use landscaping and building materials that would provide an amazing amount of sound insulation. They had developed two projects close to railroad tracks and they had not had any issues. Jose Samuels, MSA Architects, commented that the taller features helped to create visual appeal for the project. Most main streets did not have long buildings with flat tops, but ones of varying heights. Marie Horenburger asked staff whether additional density or height would be involved if the developer were able to obtain the parcel on the southeast corner. She thought this might occur since the property owner to the southeast was asking an exorbitant amount of money, additional incentives might be involved. Mike Rumpf, Planning & Zoning Director, stated that this project had come in under the current land use and zoning scheme - it solved the problems. To go outside that, because the developer was at those thresholds, would exceed what the system allows and would be inconsistent with the Corridor Plan. Prior proposals were well above the current thresholds. Ms. Horenburger thought it would be nice to have a more cohesive site as the entrance to the City. Mr. Mankoff stated the applicant agreed to all 71 conditions of approval. He praised staff for their assistance and cooperation in the planning of this important, gateway project. The applicant added two conditions based on the discussions at this meeting: 1) designate twelve spaces for the condominium owners, and 2) provide notice in the condo documents or in the contract at the time of signing that each of the individual owners would only be guaranteed one space. They believed that the height was important for the project and that they had met all the requirements for such a request. 10 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida July 12, 2005 Chair Heavilin opened the floor to the public, and closed it when no one wished to speak. Mr. Fenton took issue with the passive voice in some of the Conditions of Approval, pointing out item 1 that asks: "Please indicate number and size of containers." He felt that a more declaratory or dictatorial tone was in order. Mr. Johnson responded that staff was confident that all the conditions would be met and if not, permits would not be issued. Staff felt that it had protected the City with the Conditions of Approval. A large number of the conditions had already been satisfied. Mr. DeMarco confirmed with the agent that the applicants were in agreement with all 71 Conditions of Approval and were adding two more. He expressed appreciation for what the developers had done for that corner of the City. Mr. Johnson declared that staff agreed with the two new conditions of approval suggested by the applicant. Motion Ms. Horenburger moved to amend the Comprehensive Plan Future Land Use Map from Local Retail Commercial to Special High Density Residential (LUAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0. Motion Ms. Horenburger moved to approve the request to rezone from C-3 Community Commercial to PUD Planned Unit Development (LUAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0. Motion Ms. Horenburger moved to approve the Site Plan approval for the Heritage Club at Boynton Beach (NWSP 05-014) subject to all 73 Conditions of Approval. Mr. Fenton seconded the motion. Chair Heavilin commented that the applicant had raised the bar for development in Boynton Beach. She thought it was the best project the board had seen. Mr. Mankoff commended City staff for its efforts. The motion passed 5-0. Motion Mr. Fenton moved to approve the request for height exception of 10 feet for Heritage Club of Boynton Beach (HTEX 05-004). Vice Chair Tillman seconded the motion that passed 5-0. C. New Site Plan Neelam (fka Schnars) Business Center (NWSP 05-022) J. Ernest Brady, Stephen James Inc. Anand D. Patel (Contract Purchaser) 924 N. Federal Highway Request for Site Plan approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use Low (MU-L) zoning district. Ed Breese, Principal Planner, stated that this property had changed hands and the site plan approval expired. The new owner would like to build the same building as previously approved. 1. Project: Agent: Owner: Location: Description: 11 eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORM XI. - NEW BUSINESS ITEM A. Requested City Commission Date Final Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meeting Dates [8J August 2, 2005 July 18, 2005 (Noon.) 0 October 5, 2005 0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005 0 September 6, 2005 August] 5, 2005 (Noon) 0 November I, 2005 0 September 20, 2005 September 6,2005 (Noon) 0 November 15, 2005 Date Final Form Must be Turned in to City Clerk's Office September] 9,2005 (Noon) October 3, 2005 (Noon) October 17,2005 (Noon) .-) {..,,) .:~') ----! -_-i ~(.. October 3],2005 (Noon) C j (.-- c:: rn. .....~ _,C_~""- . -....-..J :--,"'q co -~.3 ~~ 0 Administrative 0 Development Plans \.D NATURE OF 0 Consent Agenda [8J New Business :r.n -1f.... AGENDA ITEM 0 Public Hearing 0 Legal \..0 0 Bids 0 Unfinished Business cr", 0 Announcement 0 Presentation 0 City Manager's Report ~) -j C) ~.::Jz ~'--'I .'q co ;::; Pl ~_:p , ' '('") RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under New Business for preliminary consideration of a request for code review. Staff reconnnends that the continued processing of this item be approved. If supported by the Commission, this proposed change in development standards will be carried forward to the CRA and Planning and Development Boards for their review before being brought forward for Commission consideration. Staff proposes this item based on its furthering of development plans and initiatives. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-129. EXPLANATION: PROJECT: AGENT: LOCATION: DESCRIPTION: Rights-of-way in PUD Planned Unit Developments Staff-initiated Planned Unit Development zoning districts Preliminary review of request to amend the Land Development Regulations, Chapter 2.5, Section 9. Internal PUD standards, F. RIGHTS OF WAY to allow secondary roadways within a PUD to be approved with right-of-way widths ofless than 40 feet. PROGRAM IMPACT: FISCAL IMPACT: ALTERNATIVES: N/A N/A N/A City Manager's Signature !d.:~Li;&Ue"o, City Attorney / Finance / Human Resources S:\Planning\SHARED\WP\SPECPROJ\CODE REVIEw\CDRV 05-014 R-O-W in PUDs\Agenda Item Request - August 2, 2005.dot DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 05-129 FROM Chair and Members Planning and Development Board, Community Redevelopment Agency Board, Mayor and City Commission Dick Hudson, AICP ~ Senior Planner. L-P Michael W. Rump~ Director of Planning and Zoning TO: THROUGH: DATE: July 18, 2005 SUBJEcr: Rights-of-way in PUDs CDRV 05-014 NATURE OF REOUEST Staff is proposing amendments to the Land Development Regulations, Chapter 2.5 Planned Unit Developments, Section 9. Internal PUD standards. F. RIGHTS OF WAY, to add the following: "Privatelv owned streets providinQ secondarv vehicular circulation internal to the PUD may be considered for approval with riQhts-of-wav and pavement widths less than the reQuirements stated in the city's Land Development ReQulations: however, in no case shall health, safety, welfare, or efficiencies of public services be leopardized." BACKGROUND Currently, the language in the Land Development Regulations, Chapter 2.5 Planned Unit Developments, Section 9. Internal PUD standards. F. RIGHTS OF WAY, reads as follows: "F. RIGHT-OF-WAYS. The minimum width ofa right-of-way in a PUD is forty (40) feet. In the event of a conflict with this section and any other provisions of the City's Land Development Regulations regulating the width ofthe right-of-ways, this section shall prevail." This requirement leaves no opportunities for one-way streets, service roads or common driveways of any lesser widths. Site plans for developments based on "New Urbanism" principals are being submitted that are proposing elements of internal circulation with pavement widths and rights-of-way less than the 40-foot requirement. These circulation elements include one-way streets and shared rear-access driveways (alleys); however, because of the restrictive language in the PUD regulations, these cannot be considered for approval. There is no similar problem with the Infill PUD regulations, since language in those development standards permits narrower rights-of-way at the discretion of the City Engineer. Page 2 CDRV 05-014 Rights-of-way in PUDs ANALYSIS Staff has researched a number of development regulations across the country in an attempt to find standards that would be applicable in all cases and in particular, would accommodate the types of site plans that are being submitted. One example is the Heritage Club site plan for the redevelopment of the Gulfstream Mall, where a one-way service drive with a 34-foot width is proposed on the north side of the site. Another example will be seen in the High Ridge development, where streets with proposed rights-of-way of 20 feet would provide access to garages behind the single-family residences. The publication, "Residential Streets, Third Edition, published by the Urban Land Institute in conjunction with the American Society of Civil Engineers, the Institute of Transportation Engineers, and the National Association of Home Builders recommends right-of-way widths ranging from 34 feet, for low volume local streets, up to 62 feet for collector streets. The Smartcode, copyrighted by Andres Duany and Elizabeth Plater-Zyberk, shows recommended rights-of-way ranging from 20 feet, for alleys or lanes, up to 60 feet for urban streets with parking on both sides. Other codes range from a standard of 30 feet minimum to 60 feet minimum. The typical 40-foot right-of-way is expected to provide for two-way traffic with pavement widths ranging from 22 to 34 feet, in addition to sidewalks (where required) and drainage facilities. Logically, the ultimate right-of-way for any street would take into account a number of factors: the minimum pavement width necessary to support the average daily traffic volume, on-street parking needs; access for emergency, maintenance, and service vehicles; pedestrian accommodations; landscaping; and, utility lines. When these considerations can be accommodated in a right-of-way of less than a 40-foot width, the City Engineer should be able to require less, which current language prohibits. This proposed amendment language has been drafted through a collective effort with the Engineering staff, and will provide appropriate flexibility, which is a major characteristic of planned unit development zoning. RECOMMENDATION Proposed code amendments are attached as "Exhibit A". It is staff's opinion that the proposed amendments are the minimum necessary to achieve the desired results by allowing the City Engineer to decide the minimum rights-of-way necessary to for secondary circulation, while protecting the health, safety, welfare and efficiencies of providing public services; therefore staff recommends that the proposed amendments be carried forward to the Planning and Development Board and the Community Redevelopment Agency Board for their review and comments prior to ultimate and final review by the Commission. Exhibits S:\PLANNING\SHARED\WP\SPECPROJ\CODE REVIEW\CDRY 05-014 R-O-W IN PUDS\CDRYSTAFFREPT.DOC Exhibit" A" Proposed Amendments Chapter 2.1 Planned Unit Developments, Section 9. Internal PUD standards. . . F. RIGHTS,-OF-WA YK The minimum width ofa right-of-way for a principal street in a PUD is forty (40) feet. In the event of a conflict with this section and any other provisions ofthe City's Land Development Regulations regulating the 'Nidth of the right of ways, this section shall prevail. Privately owned streets providing secondary vehicular circulation internal to the PUD may be considered for approval with rights-of-way and pavement widths less than the requirements stated in the city's Land Development Regulations; however, in no case shall health, safety, welfare, or efficiencies oflJublic services be ieopardized. S:\PlanningISHAREDlWP\SPECPROJlCODE REVIEWlCDRV 05-014 R-O- Win PUDs\Code Language.doc XII. - LEGAL ITEM A.l eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORlVI Requested City Commission Date Final Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meetin~ Dates [8J August 2, 2005 July 18, 2005 (Noon.) 0 October 5, 2005 D August 16, 2005 August 1,2005 (Noon) D October 18, 2005 D September 6, 2005 August 15,2005 (Noon) D November I, 2005 D September 20, 2005 September 6, 2005 (Noon) D November 15, 2005 Date Final Form Must be Turned in to City Clerk's Office September 19,2005 (Noon) October 3, 2005 (Noon) October 17,2005 (Noon) October 31,2005 (Noon), "-_... ,;. ~-~"~ 'j 'j D Administrative D Development Plans 1'0 NATURE OF D Consent Agenda D New Business Ct AGENDA ITEM D Public Hearing [8J Legal '-"(1 ._i;;'a D Bids D Unfinished Business r:-? D Announcement 0 Presentation w 0;;. D City Manager's Report '-, ~--\ .0 .-".......,- ~~... ~- -q "-\1 OJ -('1 nJ> no ::J: RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Legal, Ordinance- Second Reading. The City Commission approved on July 19,2005, the subject request under Legal, Ordinance - First Reading. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05- 046. EXPLANATION: PROJECT: AGENT: LOCATION: DESCRIPTION: Urban Commercial Districts (CDRV OS-OM) City Staff Initiated Community Redevelopment Agency Area Request to amend the Land Development Regulations (LDR), Chapter 2, Zoning, Section 6 and Section 8.5, to create an overlay district to reduce the front, side interior, and side comer yard building setbacks for parcels currently zoned Office and Professional District (C-I), Neighborhood Commercial District (C-2), Community Commercial District (C-3), and General Commercial District (C-4), located within targeted areas of the CRA. PROGRAM IMPACT: FISCAL IMPACT: ALTERNATIVES: N/A N/A N/A ft-v.{J~ Planning and Zo g DIrector CIty Attorney / Finance / Human Resources S:\Planning\SHARED\WP\SPECPROJ\CODE REVIEw\CDRV 05-004 Urban Commercial Overlay\Agenda Item Request Urban Comm. Dist. CDRV 05- 004 8-2-05 2nd reading.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC r I i I 1 ORDINANCE NO. 05- oaq 2 3 4 AN ORDINANCE OF THE CITY COMMISSION OF 5 THE CITY OF BOYNTON BEACH, FLORIDA 6 AMENDING LAND DEVELOPMENT 7 REGULATIONS, CHAPTER 2, ZONING, SECTION 6 8 AND SECTION 8.5. BY CREA TING A NEW 9 SECTION 8.5 B ENTITLED "URBAN 10 COMMERCIAL DISTRICT OVERLAY ZONE"; 11 PROVIDING FOR CONFLICTS, SEVERABILITY, 12 CODIFICATION AND AN EFFECTIVE DATE. 13 14 15 16 WHEREAS, upon recommendation of staff, the City Commission has determined 17 that the establishment of the Urban Commercial District Overlay Zone and corresponding 18 setback regulations would complement the City's endeavor in promoting progressive and 19 exemplary urban design; and 20 \VHEREAS, the proposed code amendment would help to harmonize the 21 placement of buildings and address some of the inconsistencies between urban and 22 suburban regulations. 23 NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION 24 OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: The foregoing whereas clauses are true and correct and are now 25 Section 1. 26 ratified and confinned by the City Commission. 27 Chapter 2, Zoning, is hereby amended by adding the words and figures III 28 underlined type, as follows: 29 Sec. 8.5 Overlay Zones 30 31 32 B. URBAN COMMERCIAL DISTRlCT OVERLAY ZONE. I. Intent and purpose. The purpose of this zone is to encourage the S:\CA\Ordinances\LDR ChangeslUrban Commercial Overlay 071305.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 development and redevelopment of commercially-zoned parcels in a manner consistent with the pattern of development of parcels with Mixed-Use zoning classifications. 2. The obiectives of this overlay zone are as follows: a. Support and enhance revitalization efforts along the City's commercial corridors within the redevelopment areas. b. Improve aesthetic and pedestrian streetscape environments by preventing the placement of off- street parking between the front of the building( s) and the rights-of-way. c. Allow flexibility in architectural design and building bulk; while maximizing compatibility and harmony with adioining development within the Defined area. 3. Defined area. The Urban Commercial District Overlay Zone is established in the city redevelopment plans as the geographical area defined by the following boundaries: a. Federal Highway Corridor Community Redevelopment Plan. The boundary is the City limits to the north, the Intracoastal Waterway to the east, the City boundary to the south, and the Florida East Coast Railroad (F.E.C.) and Palm Boulevard (Northeast 4th Street) to the west. The legal description is more particularly described in Exhibit 1.1, Appendix of the Federal Highway Corridor Community Redevelopment Plan. b. The Ocean District Community Redevelopment Plan. The boundary is Northeast 3rd A venue to the north, Seacrest Boulevard to the west, F.E.C, Railroad to the east, and Southeast 2nd Avenue to the south. c. Boynton Beach Boulevard Corridor Plan. The boundary is the commercially-zoned parcels located along west Boynton Beach Boulevard, east of Interstate 95, and west of Seacrest Boulevard. S:\CA \Ordinances\LDR Changes\Urban Conunercial Overlay 071305.doc 1 2 3 4 5 6 4. Development Standards. a. Parcels shall have the following setback requirements: Front yard Side (interior) yard Side (comer) yard Rear yard five (5) feet to fifteen (15) feet zero (0) feet to fifteen (15) feet ten (l0) feet to fifteen (15) feet shall be defined by the applicable zoning district regulations; 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 b. Maximum building height shall be defined by the applicable zoning district regulations; c. Maximum lot coverage for building(s) shall be 40 percent; 5. Landscape Requirements Foundation landscaping and trees shall be installed within the reduced building setback areas, between the building( s) and property line( s), particularly. where adiacent or visible from public and/or private rights-of-way. Section 3. Should any section or provision of this Ordinance or any portion 28 thereofbe declared by a court of competent jurisdiction to be invalid, such decision shall 29 not affect the remainder of this Ordinance. 30 Section 4. Section 5. Authority is hereby given to codify this Ordinance. This Ordinance shall become effective immediately. 31 32 FIRST READING this J.i. day of July, 2005. 33 S:\CA \Ordinances\LDR Changes\Urban Commercial Overlay 071305 doc SECOND, FINAL READING AND PASSAGE this day of August, 2005. 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 ATTEST: CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner 19 20 21 City Clerk 22 S:\CA\Ordinances\LDR Changes\Urban Commercial Overlay 071305.doc DEVELOPMENT DEPARTMENT PLANNING AND ZONING DMSION MEMORANDUM NO. PZ 05-046 TO: Chair and Members Community Redevelopment Agency Board Eric lee Johnson, AICP fjf-- Planner V Michael W. Rumpf Director of Planning and Zoning FROM: THROUGH: DATE: March 30, 2005 Urban Commercial District Overlay (CDRV 05-004) SUBJECT: NATURE OF REOUEST Staff has been requested to consider this proposed amendment to the Land Development Regulations to reduce the building setbacks for propertfes wIthin conventional commerdal zoning districts In targeted areas of the city. The Intent Is to allow flexibility In site design by requiring a "build-to" line with regards to the required front, sIde, and side comer building setbacks. This will help to serve as a catalyst for redevelopment efforts on smail-sized parcels that have not or most likely would not be assembled as part of a large mixed-use project and maximize consistency with adjacent or nearby projects that are developed under the mixed-use zoning dIstrict. BACKGROUND As per the Federal Highway Corridor Community Redevelopment Plan, the City adopted the Mixed Use-low (MU-l) and Mixed Use-High (MU-H) zonIng districts on June 18, 2002. However, after 18 months of working with these regulations, staff determined that minor amendments were warranted to bring the regulations Into closer conformance with the Intent of the Plan. The updates were made, in part, to protect neighborhoods of sIngle-family homes that are or would be adjacent to potentIal mIxed use districts. The mIxed use regulations are and could be applied to those propertfes designated with Mixed Use (MX) and Mixed Use-Core (MXC) land use dasslflcatlons (as shown on the Oty's Future land Use Map of the Comprehensive Plan). Also In June 2002, the dty created the Inflll Planned UnIt Development (IPUD) zonIng district. The IPUD zonIng district regulations were updated In 2004 to provfde more dlrectfon to developers regardIng compatibility with exIsting development, while stili omitting exactfng standards. These districts were desIgned, In part, to encourage hIgher densities and Intensities, to help redevelop the older portfon of the city while simultaneously creating an urban sense of place. It should be noted that reduced building setbacks Is a common element Inb1nslc' to all the aforementioned districts. The problem with current conventional commercial zoning district regUlations Is that portions of a sIte may be devefoped for resIdential uses; however, the regulations do not encourage a true Integration of commercial and resIdential uses, and basIcally perpetuate the suburban "strip centers" that offer little or no connectivity, allow parking lots to Page 2 CDRV 05-004 Urban Commercial District Overlay separate the project from the adjacent roadways, and do not yield large projects with unified designs. ANALYSIS This report analyzes the required building setbacks of the CIty's conventional commerdal zoning districts: OffIce Professional (C-l), Neighborhood Commercial (C-2), Community Commerdal (C- 3), and General Commercial (C-4). According to the statements contained within the proposed Urban Design Guidelines, the current Land Development Regulations for the Cty's commercial districts encourage suburban-oriented development to occur. The commercial regulations require large front setbacks, low dens!ty, height limitations, and separation of uses. This type of zoning prohibits higher density development or mixed-use developments, which are appropriate In the portions of the Community Redevelopment Agency (CRA) area for redevelopment purposes. The outcome has prevented the City from experlendng the needed economic growth that other dtles have experienced. In response to this type of development, the dty created the mixed-use zoning districts, namely Mixed Use-High (MU-H) and Mixed Use-Low (MU-L) and staff Is currently reviewing the possibility of creating additional mixed-use zoning regulations. In any case, the current regulations regarding the mixed use districts are very explicit In Its Intent; to encourage quality development, redevelopment, and urban Infill In the Oty's older and blighted downtown and outlying areas. These regulations are very effective In cases when Indlvfduallots have been ,assembled or amassed as part of a large conglomeration for large-scale mixed-use developments. The new regulations appropriately steer the desired type of growth pattern. However, the problem occurs when commercially-zoned parcels, which are not a component of a mixed-use development, are too small and I or too Isolated to be eligible for mixed-use zoning. Under the current regulations, the subsequent bulld-out of these types of lots would be bound to suburban zoning standards, resulting In a growth pattern Inconsistent with the newer, mlxed-use developments advocated throughout the aty's downtown and outlying areas. This Inconsistency could hinder the aty's effectiveness In managing the urban design for future development. Suburban standards In urban areas undermine staff leverage when negotiating with developers on Issues such as creating pedestrian-friendly corridors, concealing off-street parking areas, and regulating automotlve-oriented uses. A solution would be to create an overlay district for commercial areas, which would complement the aty's endeavor In promoting progressive and exemplary urban design (see Exhibit "B"). If the proposed guidelines were approved, developers would then be bound to the bUilding setbacks of the newly created Overlay DIstrict for properties of those targeted commercial areas. While the proposed code amendment does nothing to Increase the Intensity, height, or mixing of land uses In a given zoning district, It would help to harmonize the placement of buildings and address some of the Inconslstendes betw~n urban and suburban regulations. Furthermore, It Is stafrs opinion that the new Overlay DIstrict would not discourage property owners from assembling lots and rezoning to mixed-use districts and neither would the Overlay DIstrict perpetuate an undesirable growth pattern. RECOMMENDATION Staff recommends approval of the aeatlon of the proposed Urban Commercial Dlstrtct Overlay. Any deletions or additions recommended by the Community Redevelopment Agency Board or Oty Commission would be ultimately reflected In the flnal ordinance. s:\Plannlng\$HARE()\WP~OJ\COOE REVIEW\CDRV 05-004 uroan Commerdal Overtay\Staff Report.doc Exhibit 'A' - Urban Commercial District Overlay Map . o 1,250 2,500 ~ 10,000 I Feet ..' 5,000 ,r 7,500 t EXHIBIT "B" - PROPOSED CODE AMENDMENTS .,00. 8.5. Overlay zones. A. MARTIN LUTHER KING BOULEVARD OVERLAY ZONE. 1. General. With the completion of the Vision 20/20 Redevelopment Plan. the City identified a segment of the Martin Luther King Boulevard as an area in need of redevelopment and revitalization. This section is created to implement the development and design recommendations in the Redevelopment Plan intended to create a traditional street corridor with pedestrian improvements, storefronts along the sidewalk, and a mixture of uses. The corridor is ~o contain an ambience supported by pleasant signage and building appearance, potted landscaping. store windows and public open spaces. All development within the Martin Luther King Boulevard corridor shall occur according to the provisions of the adopted plan as stated below. 2. Defined. The Martin Luther King Boulevard Overlay Zone is hereby established as the area defined by the parcels fronting on that portion of the Boulevard l"'Cated east of Seacrest Boulevard and west of Federal ,hway right-of-way. along with those parcels adjacent to me north and south of these parcels that front on the Boulevard if assembled and development as a unified project. 3. Permitted uses. As currently defined in Chapter 2(5)(G) and Chapter 2(6)(B). 4. Prohibited uses. Reserved 5. Development standards. a Parcels that have frontage along Martin Luther King Boulevard shall have a minimum front setback of 3 feet and a maximum front setback of 12 feet. b. Minimum side setback from interior lot lines shall be 5 feet, and a minimum of 3 feet and a maximum of 12 feet from comer lot lines. c. Maximum building height shall be 30 feet and subject to other provisions of Chapter 2(4)(F). d. Lot regulations stated within ..pters 2(5)(0) and 2(6)(8) except where superseded by the regulations stated herein. 6. Signs. Reserved 7. Design Standards. Reserved 8. Landscaping. Reserved 9. Parking. a. Parking space requirements shall be calculated in accordance with Section II.H.16 of these zoning requirements, and shall be reduced by fifty percent (50%); b. Required parking spaces shall be owned or leased within one thousand (1.000) feet of the building to be served. (1) The distance requirements shall be a straight line measurement from a point on the boundary line of the property that is the subject of the application to the closest boundary line of the property on which the leased parking is located. (2) The property that is the subject of the application shall be posted with signage indicating to patrons the location of the off-site parking. c. Lease arrangements to provide required parking spaces shall be subject to approval by the Community Redevelopment Agency. (Ord. No. 00-30, ~ 1.6-20-00; Ord. No. 02-014. ~ 1,4-16- 02) B. URBAN COMMERCIAL DISTRICT OVERLAY ZONE. 1. Intent and pmpose. The DutpOse of this zone is to encourage the development and redevelQpment of commercially-zoned parcels in a manner consistent with the pattern of development of parcels with Mixed-Use zonin2 classifications. In addition. anv parcels subsequentlv annexed into the City of Bovnton Beach within the boundaries of the Community RedevelQpmel1t Agency area with commercial zoning may also utilize these setback reductions. follows: 2. The objectives of this overlay zone are as a. Supj)Ol1 and enhance revitalization efforts in the city's traditional commercial area: b. Allow flexibility in the site design in order to create a more urban environment ~y discouraging the olacement of off-street parking between the front of the building(s) and the riJZhts-of-way. Create 0Dtima1 nedestrian environments through .,prOj)riate 8q)ar8.tion from. and desi2l1 of vehicular circulation areas: c. Allow flexibility in architectural design and building bulk: while maximizing compatibility and harmonv with adioining development within the Defined area. 3. Defined area. The Urban Commercial District Overlay Zone is established as the geographical area as defined bv the boundaries of the following city RcdevelOllment Plans: a. Federal HiJZhway Corridor Connnunity. Redevelopment Plan. The boundary is 2enerallv described as the city limits to the north. the Intracoastal Waterway to the east. the municipal boundaty to the south. and the Florida Bast Coast Railroad (f .B.C.) and Palm Boulevard (Northeast 4& Street) to the west. The Jepl descriotion is more particularly descnDed in Exhibit 1.1. Appendix of the Federal Highwav Corridor Community Redevelopment Plan. b. The Ocean District Community Redevelopment Plan. The boundary is lZenerally described as Northeast 3rd Avenue to the north. Seacrest Boulevard to the west. F.RC. Railroad to the east. and Southeast 2nd Avenue to the south. c. Boynton Beach Boulevard Corridor Plan. The boundary is generally described as the commercially-zoned parcels located along Boynton Beach Boulevard. east of Interstate 95. and west of Seacrest Boulevard. The area is more particularly defined on the Location Map on Dage 2 of the Boynton Beach Boulevard Corridor Plan. 4. Development Standards. a. setback reauirements: Parcels shall have the following Front yard Side (interior) yard Side (corner) yard Rear yard five (5) feet to fifteen (15) feet zero (0) feet to fifteen (15) feet ten (0) feetto fifteen (5) feet shall be defined by the applicable zoning district regulations: b. Maximum buildin, heipt Rhall be defined by the IqlJicable zoninlr district regulations: c. Maximum lot coverage for building(s) shall be 40 percent: d. Foundation landscaping and trees are recommended to be installed within the reduced building setback areas. between the building(sl and property line( s), particularly. where adjacent or visible from public and / or private rilZhts-of-way. C-t OFFICE AND PROFESSIONAL COMMERCIAL ~1STR1CT. C-3 3. Building and site regulations. No building or portion thereof shall be erected, constructed, converted, established, altered, enlarged or used unless the premises and buildings shall comply with the following regulations: Minimum lot frontage Minimum lot depth Minimum lot area Maximum lot coverage (building) Minimum front yard Minimum rear yard Minimum side yards Maximum structure height 75 feet 120 feet 9,000 square feet 40 percent 30 feeti 20 feet 10 feet.! 30 feet, not to exceed 2 stories.. Iparcels located within the Urban Commercial District Overlay Zone are subiect to the required building setbacks DUl'SU8nt to Chapter 2. Section 8.S.B.3. ~ abutting residential district, side and/or rear yards sbal1 be thirty (30) feet. _-1. NEIGHBORHOOD COMMERCIAL DISTRICT. 3. Building and site regulations. No building or portion thereof shall be erected, constructed, converted, established, altered, enlarged or used unless the premises and buildings shall comply with the following regulations: Minimum lot frontage Minimum lot depth . Minimum lot area Maximum lot coverage Minimum front yard Minimum side yard (interior lots) Minimum side yard (comer lots) Minimum rear yard Maximum structure height 50 feet 100 feet 5,000 square feet 40 percent 30 feet 15 feet.! 20 feet on side streeti 20 feet. 25 feet, not to exceed 2 stories IParnels 1~ within the Urban Commercial District Overlay Zone are subiect to the reauired buDdin, setbacks pursuant to cm.Dter 2. Section 8.5.B.3. en abutting residential districts, side and/or rear yards IbalI be thirty (30) feet. C-3 COMMUNITY COMMERCIAL DISTRICT 3. Building and site regulations. No building or portion thereof shall be erected, constructed, converted, established, altered, enlarged or used unless the premises and buildings shall comply with the following regulations: Minimum lot frontage Minimum lot area Maximum lot coverage (building) Minimum front yard Minimum side yard 75 feet 15,000 feet 40 percent 20 feeti Nonel (see Notes (interior lots) a and b) 15 feet street sidel (see Note b) 20 feet (see Notes b and c) 4S feet, not to exceed 4 stories lparcels located within the Urban Commercial District Overlay Zone are subject to the reauired buildin2 setbacks pursuant to Chapter 2. Section 8.S.B.3. Minimum side yard (comer lots) Minimum rear yard Maximum structure height a. Where rear access is not available from a public street or alley, a side yard of not less than fifteen (IS) feet shall be provided on one side. C-4 GENERAL COMMERCIAL DISTRICT. 3. Building and site regulations. No building or portions hereof shall be erected, con-structed, converted, established, altered, enlarged or used unless the premises and buildings shall comply with the following regulations: Minimum lot frontage Minimum lot depth Minimum lot area Maximum lot coverage Minimum front yard Minimum side yard (interior lots) Minimum side yard (corner lots) 50 feet 100 feet 5,000 square feet 40 percent 25 feeti 15 feet one side4<l 15 feet on street side4<l 20 feet. 45 feet not to exceed 4 Minimum rear yard Maximum structure height stories lparce18 located within the Urban Commercial District Overlay Zone are su~fect to the reauimd buildin.; s;tbacks DUl'RUBnt to ~ 2. Section 8.5.8.3, .When abutting residential districts, side and/or rear yards shaI1 be thirty (30) feet. eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORh'.l XII. - LEGAL ITEM A.2 Requested City Commission Date Final Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meeting Dates [8J August 2, 2005 July 18,2005 (Noon.) D October 5, 2005 D August 16,2005 August 1,2005 (Noon) D October 18, 2005 D September 6, 2005 August 15,2005 (Noon) D November I, 2005 D September 20, 2005 September 6,2005 (Noon) D November 15,2005 Date Final Form Must be Turned in to City Clerk's Office September 19,2005 (Noon) October 3, 2005 (Noon) October 17, 2005 (Noon) October 31, 2005 (Noon) ." )'~l D Administrative D Development Plans NATURE OF D Consent Agenda D New Business AGENDA ITEM D Public Hearing [8J Legal D Bids D Unfinished Business D Announcement D Presentation D City Manager's Report .--i .-( c. C) _; -Ti ("'...1 o -CD ;L.,.i . -:.- 1'-,) .. ._F:~ ~..J :::;x :.ri OJ -<-1""1 'c~J> , 'in " r....-._ "..~::a G') CO RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Legal, Ordinance- Second Reading. The City Commission approved the subject request on July 19,2005 unl:ier Public Hearing and Legal, Ordinance - First Reading. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-108. EXPLANATION: PROJECT: AGENT: OWNER: LOCATION: DESCRIPTION: Knollwood II (ANEX 05-002)) Chip Bryan, Julian Bryan & Associates, Inc. Zygmunt Jadczak Between Lawrence Road and Military Trail approximately 700 feet south of the LWDD Canal L-20 Request to annex :!:5.5 acres ofIand to be reclassified and rezoned for development as part of the Knollwood PUD. PROGRAM IMPACT: FISCAL IMP ACT: ALTERNATIVES: J1~~~a Zt).~ Planning and Z rung Drrector CIty Attorney / Finance / Human Resources S:\Planning\SHARED\WP\PROJECTS\Knollwood Groves PUD\Knollwood IJ\ANEX 05-002\Agenda Item Request Knollwood II ANEX 05-002 8-2-05.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC i i I' Ii 1 ORDINANCE NO. 05- o~F1 2 3 AN ORDINANCE OF THE CITY OF BOYNTON 4 BEACH, FLORIDA, ANNEXING 5.5+/- ACRES OF 5 LAND THAT IS CONTIGUOUS TO THE CITY 6 LIMITS \VITHIN PALM BEACH COUNTY AND 7 THAT WILL, UPON ANNEXATION, CONSTITUTE 8 A REASONABLY COMPACT ADDITION TO THE 9 CITY TERRITORY; PROVIDING THAT THE 10 PROPER LAND USE DESIGNATION AND PROPER 11 ZONING OF THE PROPERTY SHALL BE 12 REFLECTED IN SEPARATE ORDINANCES TO BE 13 PASSED SIMULTANEOUSLY HEREWITH; 14 PROVIDING FOR CONFLICTS, SEVERABILITY, 15 AND AN EFFECTIVE DATE; PROVIDING THAT 16 THIS ORDINANCE SHALL BE FILED WITH THE 17 CLERK OF THE CIRCUIT COURT OF PALM 18 BEACH COUNTY, FLORIDA, UPON ADOPTION. 19 20 WHEREAS, the Comprehensive Plan for the City of Boynton Beach requires the 21 development of an Annexation Program; and 22 WHEREAS, the owner, Zygmunt Jadczak by and through their agent, Julian 23 Bryan and Associates, of the property more particularly described hereinafter, has 24 heretofore filed a Petition, pursuant to Section 9 of Appendix A-Zoning, of the Code of 25 Ordinances, City of Boynton Beach, Florida, for the purpose of annexing a certain tract 26 ofland consisting of approximately 5.5 acres; and 27 WHEREAS, the City of Boynton Beach hereby exercises its option to annex the 28 following tract of land as hereinafter described, in accordance with Article I, Section 7 29 (32) of the Charter of the City and Section 171.044, and 171.062(2), Florida Statutes; 30 and 3 1 WHEREAS, said tract of land lying and being within Palm Beach County is 32 contiguous to the existing city limits of the City of Boynton Beach, and will, upon its 33 annexation, constitute a reasonably compact addition to the City territory. S;\CA\Ordinances\Planning\Annexations\Annexation - Knollwood II.doc 1 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION 2 OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 3 Section ]. That each and every Whereas clause is true and correct. 4 Section 2. Pursuant to Article I, Section 7 (32) of the Charter of the City of 5 Boynton Beach, Florida and Section 17] .044, Florida Statutes the following described 6 unincorporated and contiguous tract of land situated and lying and being in the County 7 of Palm Beach, Florida, to wit: 8 THE NORTH Yz OF THE SOUTHEAST Y4 OF THE 9 NORTHWEST ~ OF THE NORTHEAST 1/4 IN SECTION ] 3, 10 TOWNSHIP 45 SOUTH, RANGE 42 EAST OF THE PUBLIC 11 RECORDS, PALM BEACH COUNTY, FLORIDA. 12 13 CONTAINING APPROXIMATELY 5.5 ACRES OF LAND 14 15 is hereby annexed to the City of Boynton Beach, Florida, and such land so annexed shall 16 be and become part of the City with the same force and effect as though the same had 1 7 been originally incorporated in the territorial boundaries thereof. 18 Section3 : That Section 6 and 6(a) of the Charter of the City of Boynton Beach, 19 lorida, is hereby amended to reflect the annexation of said tract of land more particularly 20 escribed in Section 2 of this Ordinance. 21 Section 4: That by Ordinances adopted simultaneously herewith, the proper City 22 oning designation and Land Use category is being determined as contemplated in Section 23 71.162(2), Florida Statutes. 24 Section 5. All ordinances or parts of ordinances in conflict herewith are hereby 25 epealed. 26 Section 6: Should any section or provision of this Ordinance or any portion thereof 27 e declared by a court of competent jurisdiction to be invalid, such decision shall not affect the S:\CA\Ordinances\Planning\Annexations\Annexation - Knollwood II.doc 1 remainder of this Ordinance. 2 Section 7: This Ordinance shall not be passed until the same has been advertised 3 r two (2) consecutive weeks in a newspaper of general circulation in the City of Boynton 4 each, Florida, as required by the City Charter and Section 171.044, Florida Statutes. 5 Section 8. This ordinance shall become effective immediately upon passage. 6 Section 9. This ordinance, after adoption, shall be filed with the Clerk of the 7 Circuit Court of Palm Beach County, Florida. 8 FIRST READING this ~ day of J u 1'1 SECOND, FINAL READING and PASSAGE this _ day of ,2005. ,2005. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ATTEST: 25 26 2', City Clerk 28 29 CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner S:\CA\Ordinances\Planning\Annexations\Annexation - Knollwood II.doc TO: FROM: THROUGH: DATE: PROJECT NAME/NUMBER: REQUEST: DEVELOPMENT DEPARTMENT PLANNING &. ZONING DIVISION MEMORANDUM NO. PZ 05-108 Chair and Members Planning and Development Board and Mayor and City Commission Dick Hudson, AIC~ Senior Planner tplU Michael W. Rumpf Director of Planning and Zoning June 14, 2005 Knollwood II ANEX 05-002 & LUAR 05-006 Annex the property, amend the future land use designation from MR-5 (Palm Beach County) to Low Density Residential (LDR) and rezone from Agricultural Residential (Palm Beach County) to PUD-Planned Unit Development Property Owner: Applicant/Agent: Location: Parcel Size: Existing Land Use: Existing Zoning: Proposed Land Use: Proposed Zoning: Proposed Use: PROJECT DESCRIPTION Zygmunt Jadczak DRHI, Inc./Julian Bryan and Associates Between Lawrence Road and Military Trail approximately 700 feet south of the LWDD Canal L-20 (Exhibit "A") ::f:5.5 acres MR-5 Medium Density Residential at 5 du/ac with PUD zoning (Palm Beach County) AR Agricultural Residential Low Density Residential (LOR) PUD Planned Unit Development 25 zero lot line Single Family Residences Page 2 File Number: LUAR 05-006 Name: Knollwood Groves II Adjacent Uses: North: South: East: West: Property lying within the City of Boynton Beach designated Low Density Residential and zoned PUD Planned Unit Development (Knollwood Groves). The property was recently the subject of a land use amendment and rezoning under Round 05-2 Large scale amendments. Developed residential property lying in unincorporated Palm Beach County designated LR-3 (3 du/ac with PUD zoning) and zoned AR Agricultural Residential. Developed residential property (Nautica) lying within the City of Boynton Beach, designated Low Density Residential (LDR) and zoned PUD Planned Unit Development Developed residential property (Sunset Cay) lying in unincorporated Palm Beach County designated MR-S (5 du/ac with PUD zoning) and zoned PUD Planned Unit Development EXECUTIVE SUMMARY Staff recommends approval of the requested annexation, land use amendment and rezoning for the following reasons: 1. The property is contiguous to the City of Boynton Beach on two sides and will constitute a reasonably compact addition to the City. 2. The petition is consistent with the City's Comprehensive Plan Future Land Use Map designation for properties to be annexed, with the City's annexation program and with service availability. 3. The property was proposed as a part of the master plan for the Knollwood Groves PUD, approved for development by the City on May 17, 2005 in anticipation of submittal of the subject requests. PROJECT ANALYSIS The parcels, which are the subject of this land use amendment, total :tS.S acres. Because of the size of the property under consideration, the Florida Department of Community Affairs classifies this amendment as a "small scale" amendment. A "small-scale" amendment is adopted prior to forwarding to the Florida Department of Community Affairs and is not reviewed for compliance with the state, regional and local comprehensive plans prior to adoption. Master Plan Requirements The regulations for the Planned Unit Development zoning district require that a master plan, including multi-year phases be submitted and reviewed for approval at the time of rezoning to PUD. The required master plan submitted prior to transmittal of the large-scale amendment for Page 3 File Number: LUAR 05-006 Name: Knollwood Groves II the Knollwood Groves PUD, included the subject property. No significant changes have been made to the master plan since that submittal. The subject parcel is located to the southwest of the original Knollwood Groves site. Currently, Minor Road stops at Lawrence Road; however, the County's Long-Range Transportation Improvement Plan calls for a right-of-way of 110 feet along the north boundary of the property in order to ultimately continue Miner Road to Military Trail. In deference to that plan, the developers have set aside a 110-foot wide strip of property along the north boundary of the parcel. A 20-foot wide landscape buffer is provided to the south side of the future right- of-way and there are opportunities for three access points from the development provided for connection, when the Miner Road extension is constructed. Ten-foot landscape buffer easements are provided on the other sides of the development that abut existing residential development. The main entrance to the development is shown from Lawrence Road at the south boundary of the property. The entrance is flanked with open space areas, with a 30-foot landscape buffer along Lawrence Road. The entranceway intersects with the development's internal circulation at a recreation area of approximately 0.60 acres. A lake/water management tract of 3.24 acres is located along the Miner Road set-aside, and another 1.38-acre lake/water management tract is located to the north of the subject property. Individual lots are not shown on the master plan, but are noted as having a typical size of 45 feet by 115 feet for perimeter lots and 45 feet by 105 feet for lots with lake frontage. Perimeter lots are shown with minimum front yard setbacks of 22.5 feet for one story homes, which can be no more than 20% of the homes, and typical setbacks are 25 feet. Side yard setbacks are typically 10 feet on one side and zero on the other. Roofs are allowed to encroach in the side yard setbacks up to 1 foot. Rear yard setbacks are shown with a 20-foot setback, which includes the 10-foot landscape buffer. Screen enclosure setbacks are five feet. Lots with lake frontage are similar in all proposed dimension with the exception of the rear yard setbacks, which are reduced to a minimum of 10 feet from the abutting water management tracts. The building envelopes are allowed to a maximum of 55% of lot coverage and covered patios are restricted to remain within the building envelope. Review Based on Criteria The criteria used to review Comprehensive Plan amendments and rezonings are listed in the Land Development Regulations, Chapter 2, Section 9, Administration and Enforcement, Item C. Comprehensive Plan Amendments: Rezonings. These criteria are required to be part of a staff analysis when the proposed change includes an amendment to the Comprehensive Plan Future Land Use Map. Pursuant to Section 9.C.2(2) of the Land Development Regulations, however, staff is not required to review the petition against the eight (8) criteria indicated in Section 9.C.7., when the petition is consistent with the city's Comprehensive Plan Future Land Use Map designation for properties to be annexed. Instead, staff analysis will relate to consistency with other relevant portions of the Comprehensive Plan, the city's annexation program and selVice capability consistent with Policy 8.10.5 of the Intergovernmental Coordination Element of the Comprehensive Plan. At present, the subject property is occupied by a partially completed single-family residence. Sole access to the property is provided through an easement from Redding Road, approximately Page 4 File Number: LUAR 05-006 Name: Knollwood Groves II 100 feet to the south of the southern property boundary. Upon annexation, the property will be included in the Knollwood Groves PUD development. Vehicular access will be through that PUD, as will the provision of water and sewer services. The present access easement will be abandoned. The applicant has projected the population of the proposed housing units at 2.5 persons per household for a total population of 63 residents. Utilizing this projection and the City's adopted levels of serVice, staff estimates the water usage at 500 gallons per day per household (200 gallons per day per capita x 2.5) or 12,500 gallons per day. Wastewater service demand would be 225 gallons per day per household (90 gallons per day per capita x 2.5) or 5,625 gallons per day. Traffic impact analysis for the parcel, submitted in a study prepared by consultants for the applicant, shows that the proposed land use designation is consistent with the Transportation Element of the Palm Beach County Comprehensive Plan. The proposed use of the property will generate an additional 235 trips per day. With respect to solid waste, the Palm Beach County Solid Waste Authority has stated that adequate capacity exists to accommodate the county's municipalities throughout the 10-year planning period. The School District of Palm Beach County has reviewed the application and has determined that adequate capacity exists to accommodate the resident population. Lastly, drainage will also be reviewed in detail as part of the review of the site plan application, and must satisfy all requirements of the city and local drainage permitting authorities. CONCLUSIONS/RECOMMENDATIONS As indicated herein, this request is consistent with the intent of the Comprehensive Plan; will not create additional impacts on infrastructure that have not been anticipated in the Comprehensive Plan; will be compatible with adjacent land uses and will contribute to the overall economic development of the City. Therefore, staff recommends that the subject request be approved. If the Planning and Development Board or the City Commission recommends conditions, they will be included within Exhibit "B". ATTACHMENTS S:\Plannlng\SHARED\WP\PROJECTS\Knollwood Groves PUD\Knollwood ll\LUAR 05-006\STAFF REPORT KNOllWOOD I1.doc LOCATION MAP Knollwood II ANEX 05-002 & LUAR 05-006 Exhibit A t= ~ ~I~ r=: IR. '- ED__ ~ - \ \lJ~ ,'F~ I I ~ - H8K1L-HtR--" ,,-y~ - f.;J' I-- ~ ~~ . I~ I JH ,r-ftAt:loMAftK-8Ift-, - ~ \ '\~ ~.IJ --1 ~~ etH' I ;I i1'N I I \\Y) III von ~..~, ..-..---.-..-..-..-- --tCNO_.., 1J ~ I i'\ -I-- - I-- - I-- -- '- II I II ~ ~( -- -- - - ,.... 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'., : \ ~ \ _. ii.,. ~> /lrlJ 'v i;:., ::''0 <v vI'" eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORM XII. - LEGAL ITEM A.3 Requested City Commission Date Final Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meeting Dates ~ August 2, 200S Ju]y ] 8, 200S (Noon) 0 October S, 200S 0 August 16, 200S August ], 200S (Noon) 0 October] 8, 200S 0 September 6, 200S August IS, 200S (Noon) 0 November] , 200S 0 September 20, 200S September 6, 200S (Noon) 0 November] S, 200S Date Final Form Must be Turned in to City C]erk' s Office September 19, 200S (Noon) October 3, 200S (Noon) October ]7, 200S (Noon) October 3] , 200S (NOQllh ......, ---.& ~..-< c____ I~- 0 0 ,-- Administrative Development Plans N NATURE OF 0 Consent Agenda 0 New Business 0 AGENDA ITEM 0 Public Hearing ~ Legal -v _.:!.110 0 Bids 0 Un[mished Business r;? 0 Announcement 0 Presentation W CD 0 City Manager's Report --:.... f--.-; .. 'l ) ~';'J ".-. ~:-~ J)~ '~f~ 0:> ;.., ('") RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Legal, Ordinance- Second Reading. The City Commission approved the subject request on July 19, 2005 under Public Hearing and Legal, Ordinance - First Reading. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-108. EXPLANATION: PROJECT: AGENT: OWNER: LOCATION: Knollwood n (LUAR 05-006) Chip Bryan, Julian Bryan & Associates, Inc. Zygmunt Jadczak Between Lawrence Road and Military Trail approximately 700 feet south of the LWDD Canal L-20 Request to amend the Comprehensive Plan Future Land Use Map from MR-5 Single- family Residential (Palm Beach County) to LDR Low Density Residential. DESCRIPTION: PROGRAM IMPACT: FISCAL IMP ACT: ALTERNATIVES: ~fk.ifA -;L-p 2--0 '2 I ~ Planning and Zoninil>irector City Attorney / Finance / Human Resources S:\Planning\SHARED\WP\PROJECTS\Knollwood Groves PUD\Knollwood ]!\LUAR OS-006\Agenda Item Request Knollwood II LUAR OS-006 amend 8-2- OS.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC 1 ORDINANCE NO. 05-037 2 3 AN ORDINANCE OF THE CITY OF BOYNTON 4 BEACH, FLORIDA, AMENDING ORDINANCE 5 89-38 BY AMENDING THE FUTURE LAND USE 6 ELEMENT OF THE COMPREHENSIVE PLAN 7 FOR A PARCEL OWNED BY ZYGMUNT 8 JADCZAK, AND LOCA TED BETWEEN 9 LA WRENCE ROAD AND MILITARY TRAIL 10 APPROXIMATELY 700 FEET SOUTH OF THE 11 LAKE WORTH DRAINAGE DISTRICT L-20 12 CANAL; CHANGING THE LAND USE 13 DESIGNATIONFROMMR-5 MEDIUM DENSITY 14 RESIDENTIAL AT 5/DU/AC WITH PUD ZONING 15 (PALM BEACH COUNTY) TO LOW DENSITY 16 RESIDENTIAL (LDR); PROVIDING FOR 17 CONFLICTS, SEVERABILITY, AND AN 18 EFFECTIVE DATE. 19 20 WHEREAS, the City Commission of the City of Boynton Beach, Florida has 21 adopted a Comprehensive Future Land Use Plan and as part of said Plan a Future Land 22 Use Element pursuant to Ordinance No. 89-38 and in accordance with the Local 23 Government Comprehensive Planning Act; and 24 WHEREAS, the procedure for amendment of a Future Land Use Element of a 25 Comprehensive Plan as set forth in Chapter 163, Florida Statutes, has been followed; 2 6 and 27 WHEREAS, after two (2) public hearings the City Commission acting in its 28 dual capacity as Local Planning Agency and City Commission finds that the 29 amendment hereinafter set forth is consistent with the City's adopted Comprehensive 30 Plan and deems it in the best interest of the inhabitants of said City to amend the 31 aforesaid Element ofthe Comprehensive Plan as provided. 32 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF S:\CA\Ordinances\Planning\Land Use\Knollwood II.doc 1 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 2 Section I: The foregoing WHEREAS clauses are true and correct and 3 incorporated herein by this reference. 4 Section 2: Ordinance No. 89-38 ofthe City is hereby amended to reflect the 5 following: 6 That the Future Land Use of the following described land located between 7 Lawrence Road and Military Trial approximately 700 feet south of the Lake Worth 8 Drainage District L-20 Canal in Boynton Beach, Florida shall be changed from MR-5 9 Medium Density Residential at 5/dulac with PUD zoning (Palm Beach County) and 1. 0 shall now be designated as Low Density Residential (LDR): 11 THE NORTH Y2 OF THE SOUTHEAST ~ OF THE NORTHWEST 12 ~ OF THE NORTHEAST ~ IN SECTION 13, TOWNSHIP 45 13 SOUTH, RANGE 42 EAST OF THE PUBLIC RECORDS, PALM 14 BEACH COUNTY, FLORIDA. 15 16 17 Subject to easements, restrictions, reservation and rights of way of record. 18 19 20 Section 3: That any maps adopted in accordance with the Future Land Use Element 21 of the Future Land Use Plan shall be amended accordingly. 22 Section 4: All ordinances or parts of ordinances in conflict herewith are hereby 23 repealed. 24 Section 5: Should any section or provision ofthis Ordinance or any portion thereof 25 be declared by a court of competent jurisdiction to be invalid, such decision shall not affect 26 the remainder of this Ordinance. ~ 27 Section 6: This Ordinance shall take effect on adoption, subject to the review, S,\CA\Ordinances\Planning\Land Use\Knollwood II.doc 1 challenge, or appeal provisions provided by the Florida Local Government Comprehensive 2 Planning and Land Development Regulation Act. No party shall be vested of any right by 3 virtue of the adoption ofthis Ordinance until all statutory required review is complete and 4 all legal challenges, including appeals, are exhausted. In the event that the effective date is 5 established by state law or special act, the provisions of state act shall control. 6 FIRST READING this ~ day of Ju 11 7 SECOND, FINAL READING and PASSAGE this _ day of ,2005. 8 2005. 9 CITY OF BOYNTON BEACH, FLORIDA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ATTEST: 26 27 28 City Clerk 29 30 (Corporate Seal) 31 Mayor Vice Mayor Commissioner Commissioner Commissioner S:\CA\Ordinances\planning\Land use\Knollwood II.doc TO: FROM: THROUGH: DATE: PROJECT NAME/NUMBER: REQUEST: DEVELOPMENT DEPARTMENT PLANNING & ZONING DMSION MEMORANDUM NO. PZ 05-108 Chair and Members Planning and Development Board and Mayor and City Commission Dick Hudson, AIC~ Senior Planner ~ Michael W. Rumpf Director of Planning and Zoning June 14, 2005 Knollwood II ANEX 05-002 & LUAR 05-006 Annex the property, amend the future land use designation from MR-5 (Palm Beach County) to Low Density Residential (LOR) and rezone from Agricultural Residential (Palm Beach County) to PUD-Planned Unit Development Property Owner: Applicant! Agent: Location: Parcel Size: Existing Land Use: Existing Zoning: Proposed Land Use: Proposed Zoning: Proposed Use: PROJECT OESCRIPnON Zygmunt Jadczak DRHI, Inc./Julian Bryan and Associates Between Lawrence Road and Military Trail approximately 700 feet south of the LWDD Canal L -20 (Exhibit "A") :t5.5 acres MR-5 Medium Density Residential at 5 du/ac with PUD zoning (Palm Beach County) AR Agricultural Residential Low Density Residential (LOR) PUD Planned Unit Development 25 zero lot line Single Family Residences Page 2 File Number: LUAR 05-006 Name: Knollwood Groves II Adjacent Uses: North: South: East: West: Property lying within the City of Boynton Beach designated low Density Residential and zoned PUD Planned Unit Development (Knollwood Groves). The property was recently the subject of a land use amendment and rezoning under Round 05-2 large scale amendments. Developed residential property lying in unincorporated Palm Beach County designated lR-3 (3 du/ac with PUD zoning) and zoned AR Agricultural ResIdential. Developed residential property (Nautica) lying within the City of Boynton Beach, designated low Density Residential (lDR) and zoned PUD Planned Unit Development Developed residential property (Sunset Cay) lying in unincorporated Palm Beach County designated MR-5 (5 du/ac with PUD zoning) and zoned PUD Planned Unit Development EXECUTIVE SUMMARY Staff recommends approval of the requested annexation, land use amendment and rezoning for the following reasons: 1. The property is contiguous to the City of Boynton Beach on two sides and will constitute a reasonably compact addition to the City. 2. The petition is consistent with the City's Comprehensive Plan Future Land Use Map designation for properties to be annexed, with the City's annexation program and with service availability. 3. The property was proposed as a part of the master plan for the Knollwood Groves PUD, approved for development by the City on May 17, 2005 in anticipation of submittal of the subject requests. PROJECT ANALYSIS The parcels, which are the subject of this land use amendment, total :1:5.5 acres. Because of the size of the property under consideration, the Florida Department of Community Affairs classifies this amendment as a "small scale" amendment. A "small-scale" amendment is adopted prior to forwarding to the Aorlda Department of Community Affairs and Is not reviewed for compliance with the state, regional and local comprehensive plans prior to adoption. Master Plan Requirements The regulations for the Planned Unit Development zoning district require that a master plan, Including multi-year phases be submitted and reviewed for approval at the time of rezoning to PUD. The required master plan submitted prior to transmittal of the large-scale amendment for Page 3 File Number: LUAR 05.006 Name: Knollwood Groves II the Knollwood Groves PUD, Included the subject property. No sIgnIficant changes have been made to the master plan sInce that submittal. The subject parcells located to the southwest of the orIginal Knollwood Groves sIte. Currently, Minor Road stops at Lawrence Road; however, the County's Long-Range Transportation Improvement Plan calls for a right-of-way of 110 feet along the north boundary of the property in order to ultimately continue Miner Road to Military Trail. In deference to that plan, the developers have set aside a !lO-foot wide strip of property along the north boundary of the parcel. A 20-foot wide landscape buffer Is provIded to the south sIde of the future right- of-way and there are opportunities for three access poInts from the development provided for connection, when the Miner Road extension is constructed. Ten-foot landscape buffer easements are provided on the other sides of the development that abut existing residential development. The main entrance to the development is shown from Lawrence Road at the south boundary of the property. The entrance is flanked with open space areas, with a 30-foot landscape buffer along Lawrence Road. The entranceway intersects with the development's internal circulation at a recreation area of approximately 0.60 acres. A lake/water management tract of 3.24 acres is located along the Miner Road set-aside, and another 1.38-acre lake/water management tract is located to the north of the subject property. Individual lots are not shown on the master plan, but are noted as having a typical size of 45 feet by 115 feet for perimeter lots and 45 feet by 105 feet for lots with lake frontage. Perimeter lots are shown with minimum front yard setbacks of 22.5 feet for one story homes, which can be no more than 20% of the homes, and typical setbacks are 25 feet. Side yard setbacks are typically 10 feet on one side and zero on the other. Roofs are allowed to encroach in the side yard setbacks up to 1 foot. Rear yard setbacks are shown with a 20-foot setback, which includes the 10-foot landscape buffer. Screen enclosure setbacks are five feet. Lots with lake frontage are similar in all proposed dimension with the exception of the rear yard setbacks, which are reduced to a minimum of 10 feet from the abutting water management tracts. The building envelopes are allowed to a maxImum of 55% of lot coverage and covered patios are restricted to remain within the building envelope. Review Based on Criteria The criteria used to review Comprehensive Plan amendments and rezonings are listed in the Land Development Regulations, Chapter 2, Section 9, Administration and Enforcement, Item C. Comprehensive Plan Amendments: Rezonings. These criteria are required to be part of a staff analysis when the proposed change Includes an amendment to the ComprehensIve Plan Future Land Use Map. Pursuant to Section 9.C.2(2) of the Land Development Regulations, however, staff Is not required to revIew the petItion against the eight (8) criteria IndIcated in Section 9.C.7., when the petItion Is consistent with the city's Comprehensive Plan Future Land Use Map designation for properties to be annexed. Instead, staff analysIs will relate to consIstency wIth other relevant portions of the Comprehensive Plan, the city's annexation program and service capability consistent wIth Policy 8.10.5 of the Intergovernmental Coordination Element of the ComprehensIve Plan. At present, the subject property is occupied by a partially completed slngle-famlfy residence. Sole access to the property Is provIded through an easement from ReddIng Road, approximately Page 4 File Number: LUAR 05-006 Name: Knollwood Groves II 100 feet to the south of the southern property boundary. Upon annexation, the property will be included in the Knollwood Groves PUD development. Vehicular access will be through that PUD, as will the provision of water and sewer services. The present access easement will be abandoned. The applicant has projected the population of the proposed housing units at 2.5 persons per household for a total population of 63 residents. Utilizing this projection and the City's adopted levels of service, staff estimates the water usage at 500 gallons per day per household (200 gallons per day per capita x 2.5) or 12,500 gallons per day. Wastewater service demand would be 225 gallons per day per household (90 gallons per day per capita x 2.5) or 5,625 gallons per day. Traffic impact analysis for the parcel, submitted in a study prepared by consultants for the applicant, shows that the proposed land use designation Is consistent with the Transportation Element of the Palm Beach County Comprehensive Plan. The proposed use of the property will generate an additional 235 trips per day. With respect to solid waste, the Palm Beach County Solid Waste Authority has stated that adequate capacity exists to accommodate the county's municipalities throughout the 10-year planning period. The School District of Palm Beach County has reviewed the application and has determined that adequate capacity exists to accommodate the resident population. Lastly, drainage will also be reviewed in detail as part of the review of the site plan application, and must satisfy all requirements of the city and local drainage permitting authorities. CONCLUSIONS/RECOMMENDAnONS As indicated herein, this request is consistent with the intent of the Comprehensive Plan; will not create additional impacts on infrastructure that have not been anticipated in the Comprehensive Plan; will be compatible with adjacent land uses and will contribute to the overall economic development of the Oty. Therefore, staff recommends that the subject request be approved. If the Planning and Development Board or the City Commission recommends conditions, they will be included within Exhibit "B". ATTACHMENTS S:\Plamlng\SHARED\WP\PROJECTS\Knollwood Groves PUD\Knotlwood II\LUAR 05.006\STAFF REPORT KNOLLWOOD n.doc . '/ I ~/ ~ :>oJ) 21 ~ I r..- "=1'== :i!; V - i\.. ~ .,"' LOCATION MAP Knollwood II ANEX 05-002 & LUAR 05-006 t- II ~t:- - - - - I '1LllJJ ^ II \ ~ V~ \..y ~,\.~ '" '/~ t-? I lW~ 7~: \ \YJTTTi0lH'e :!:td: -=z. '-- '-- - - r- r-- I I H ~ ~ '-- - J ~ ~..~~ I I I / ---, -Ll.l V c-- ~ ~ I- ::- " J SI~1i I f r- ~ 'III~ ~~ ~ :if/~U // --- '- t-.:. f--- t- I-- - r-- t- I-- - i'-' I-- - ~ 1 I III \ "- I 81N6 ftD I I I I ~ / - "-I - - - -- I - '" ~ v ~ fu ~'<(I,\) .\ 11111 111111111 '1111'11 C7t~*'~'~/ I J) " ~~- .........'\ \.l...~ -= CI - :::: -:J-- \ -- ~ - ~ - ::::: :::: -j I -- .~ " /" ..... //) II11 r ! t 1111 II U \\ /, I I J ,,,,," c ~ewtHIp r--- "'''' \ \ I 1/ /~ .-- - r::s ~ I:::: " III }-- ~ = ~ "s: / "- '/ \:\' --fIN -~t I \. J'i 770 385 o Exhibit A '-KEH8K1Li:-eIR-' ,.--tiAI:I:MAftK-GlR-- ..-........-..-..-..-. I II I 4 Y:~ ~ J'~ / II 0.}, I ~~~'F ( .J r .--I \L \ \ I C/, 111I .11, ..:. S COVE .. #. ~ III t::( _ '--.,. I ~ TI I ( \ - 770 Feet XII. - LEGAL ITEM A.4 eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORM Requested City Commission Date Fina] Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meeting Dates r8J August 2, 200S Ju]y ]8, 200S (Noon.) 0 October S, 200S 0 August] 6, 200S August ], 200S (Noon) 0 October] 8, 200S 0 September 6, 200S August IS, 200S (Noon) 0 November], 200S 0 September 20, 200S September 6, 200S (Noon) 0 November ]S, 200S Date Final Form Must be Turned in to City Clerk's Office September ]9, 200S (Noon) October 3, 200S (Noon) October] 7, 200S (Noon) October 3], 200S (Noon). ~) ~~-i :~-< --' < f"=' 0 Administrative 0 Development Plans 0 f'0 NATURE OF 0 Consent Agenda New Business C:J AGENDA ITEM 0 Public Hearing r8J Legal -0 C) -"", J-_ _....... 0 Bids 0 Unftnished Business _..~ r;? ,-~CC 0 Announcement 0 Presentation W ~- r:1 0 C:J ~~~~ City Manager's Report -,- RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Legal, Ordinance - Second Reading. The City Commission approved the subject request on July 19,2005 under Public Hearing and Legal, Ordinance - First Reading. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-108. EXPLANATION: PROJECT: AGENT: OWNER: LOCATION: Knollwood II (LUAR 05-006) Chip Bryan, Julian Bryan & Associates, Inc. Zygmunt Jadczak Between Lawrence Road and Military Trail approximately 700 feet south of the L WDD Canal L-20 Request to rezone from AR-Agricultural Residential (Palm Beach County) to PUD Planned Unit Development. DESCRIPTION: PROGRAM IMP ACT: FISCAL IMPACT: ALTERNATIVES: J1If4!i#~~ Develo Ltj Planning an~~irector City Attorney / Finance / Human Resources S:\P]anning\SHARED\WP\PROJECTS\Knollwood Groves PUD\KnoIlwood II\LUAR OS-006\Agenda Item Request KnoIlwood II LUAR OS-006 rezone 8-2- OS.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC 1 ORDINANCE NO. 05- O~8 2 3 AN ORDINANCE OF THE CITY OF BOYNTON 4 BEACH, FLORIDA, REGARDING THE 5 APPLICATION OF DRIll, INC., TO REZONE A 6 PARCEL OF LAND, AMENDING ORDINANCE 02- 7 013 TO REZONE A PARCEL OF LAND I-,OCATED 8 BETWEEN LA WRENCE ROAD AND MILITARY 9 TRAIL APPROXIMATELY 700 FEET SOUTH OF 10 THE LAKE WORTH DRAINAGE DISTRICT CANAL 11 L-20, BOYNTON BEACH, FI,ORIDA, AS MORE 12 FULLY DESCRIBED HEREIN, FROM 13 AGRICULTURAL RESIDENTIAL (AR) TO 14 PLANNED UNIT DEVELOPMENT (PUD); 15 PROVIDING FOR CONFLICTS, SEVERABILITY, 16 AND AN EFFECTIVE DATE. 17 18 WHEREAS, the City Commission of thc City of Boynton Beach, Florida has adoptcd 19 Ordinance No. 02-013, in which a Revised Zoning Map was adopted for said City; and 20 WHEREAS, Zygmunt Jadczak, owner of the property located between Lawrence Road 21 and Military Trail approximately 700 feet south of the Lake Worth Drainage District Canal L- 22 20 in Boynton Beach, Florida, as more particularly described herein, has filed a Petition, 23 through its agent Julian Bryan and Associates, pursuant to Section 9 of Appendix A-Zoning, of 24 the Code of Ordinances, City of Boynton Beach, Florida, for the purpose of rezoning a parcel 25 of land, said land being more particularly described hereinafter, from Agricultural Residential 26 (AR) to Planned Unit Development (PUD); and 27 WHEREAS, the City Commission conducted a public hearing and heard testimony 28 and received evidence which the Commission finds supports a rezoning for the property 29 hereinafter described; and 30 WHEREAS, the City Commission finds that the proposed rezoning is consistent with 31 an amendment to the Land Use which was contemporaneously considered and approved at the S:\CA \Ordinances\Planning\Rezoning\Rezoning - Knollwood II.doc 1 public hearing heretofore referenced; and 2 WHEREAS, the City Commission deems it in the best interests of the inhabitants of 3 said City to amend the aforesaid Revised Zoning Map as hereinafter set forth. 4 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF 5 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 6 Section I. The foregoing Whereas clauses are true and correct and incorporated 7 herein by this reference. Section 2. The following described land, Lawrence Road and Military Trail 8 9 approximately 700 feet south of the Lake Worth Drainage District Canal L-20 in the City of 10 Boynton Beach, Florida, as set forth as follows: 11 THE NORTH 1i OF THE SOUTHEAST ~ OF THE NORTHWEST ~ 12 OF THE NORTHEAST ~ IN SECTION 13, TOWNSHIP 45 SOUTH, 13 RANGE 42 EAST OF THE PUBLIC RECORDS, PALM BEACH 14 COUNTY, FLORIDA. 15 16 1 7 be and the same is hereby rezoned from Agricultural Residential (AR) to Planned Unit 18 Development (PUD). A location map is attached hereto as Exhibit "A" and made a part of this 19 Ordinance by reference. 20 Section 3. That the aforesaid Revised Zoning Map of the City shall be amended 21 accordingly. 22 Section 4. All ordinances or parts of ordinances III conflict herewith are hereby 23 repealed. 24 Section 5. Should any section or provision of this Ordinance or any portion thereof be 25 declared by a court of competent jurisdiction to be invalid, such decision shall not affect the 26 remainder of this Ordinance. S:\CA \Ordinances\Planning\RezGning\Rezoning - Knollwood II.doc 1 Section 6. This ordinance shall become effective immediately upon passage. 2 FIRST READING this ~ day of Jul1 ,2005. 3 SECOND, FINAL READING and PASSAGE this _ day of ,2005. 4 5 CITY OF BOYNTON BEACH, FLORIDA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ATTEST: 20 21 22 City Clerk 23 24 (Corporate Seal) Mayor V ice Mayor Commissioner Commissioner Commissioner S :\CA \Orc'inances\Planning\Rezoning\Rezoning - Knollwood Il.doc DEVELOPMENT DEPARTMENT PLANNING & ZONING DMSION MEMORANDUM NO. PZ OS-108 TO: Chair and Members Planning and Development Board and Mayor and City Commission Dick Hudson, AIC~ Senior Planner ~ FROM: THROUGH: Michael W. Rumpf Director of Planning and Zoning DATE: PROJECT NAME/NUMBER: June 14, 2005 Knollwood II ANEX 05-002 & lUAR 05-006 REQUEST: Annex the property, amend the future land use designation from MR-5 (Palm Beach County) to low Density Residential (lDR) and rezone from Agricultural Residential (Palm Beach County) to PUD-Planned Unit Development PROJECT DESCRIPnON Property Owner: Zygmunt Jadczak Applicant,! Agent: DRHI, Inc./Julian Bryan and Associates location: Between lawrence Road and Military Trail approximately 700 feet south of the LWDD Canal L-20 (Exhibit "A") Parcel Size: :1:5.5 acres Existing land Use: MR-5 Medium Density Residential at 5 du/ac with PUD zoning (Palm Beach County) AR Agricultural Residential Existing Zoning: Proposed land Use: Low Density Residential (lOR) Proposed Zoning: PUD Pianned Unit Development Proposed Use: 25 zero lot line Single Family Residences Page 2 File Number: LUAR 05-006 Name: Knollwood Groves II Adjacent Uses: North: South: East: West: Property lying within the City of Boynton Beach designated low Density Residential and zoned PUD Planned Unit Development (Knollwood Groves). The property was recently the subject of a land use amendment and rezoning under Round 05-2 large scale amendments. Developed residential property lying in unincorporated Palm Beach County designated LR-3 (3 du/ac with PUD zoning) and zoned AR Agricultural Residential. Developed residential property (Nautica) lying within the City of Boynton Beach, designated Low Density Residential (lDR) and zoned PUD Planned Unit Development Developed residential property (Sunset Cay) lying in unincorporated Palm Beach County designated MR-5 (5 du/ac with PUD zoning) and zoned PUD Planned Unit Development EXECUTIVE SUMMARY Staff recommends approval of the requested annexation, land use amendment and rezoning for the following reasons: 1. The property is contiguous to the City of Boynton Beach on two sides and will constitute a reasonably compact addition to the City. 2. The petition is consistent with the City's Comprehensive Plan Future Land Use Map designation for properties to be annexed, with the City's annexation program and with service availability. 3. The property was proposed as a part of the master plan for the Knollwood Groves PUD, approved for development by the City on May 17, 2005 in anticipation of submittal of the subject requests. PROJECT ANALYSIS The parcels, which are the subject of this land use amendment, total :tS.S acres. Because of the size of the property under consideration, the Rorida Department of Community Affairs classifies this amendment as a "small scale" amendment. A "small-scale" amendment is adopted prior to forwarding to the Florida Department of Community Affairs and Is not reviewed for compliance with the state, regional and local comprehensive plans prior to adoption. Master Plan Requirements The regulations for the Planned Unit Development zoning district require that a master plan, Including multi-year phases be submitted and reviewed for approval at the time of rezoning to PUD. The requlrecl master plan submitted prior to transmittal of the large-scale amendment for Page 3 File Number: LUAR 05-006 Name: Knollwood Groves II the Knollwood Groves PUD, Included the subject property. No significant changes have been made to the master plan sInce that submIttal. The subject parcells located to the southwest of the original Knollwood Groves site. Currently, Minor Road stops at Lawrence Road; however, the County's Long-Range Transportation Improvement Plan calls for a right-of-way of 110 feet along the north boundary of the property in order to ultimately continue Miner Road to Military Trail. In deference to that plan, the developers have set asIde a 110-foot wide strip of property along the north boundary of the parcel. A 20-foot wide landscape buffer is provided to the south side of the future right- Of-way and there are opportunities for three access points from the development provided for connection, when the Miner Road extension is constructed. Ten-foot landscape buffer easements are provided on the other sides of the development that abut existing residential development. The main entrance to the development is shown from Lawrence Road at the south boundary of the property. The entrance Is flanked with open space areas, with a 30-foot landscape buffer along Lawrence Road. The entranceway intersects with the development's internal circulation at a recreation area of approximately 0.60 acres. A lake/water management tract of 3.24 acres is located along the Miner Road set-aside, and another 1.38-acre lake/water management tract is located to the north of the subject property. Individual lots are not shown on the master plan, but are noted as having a typical size of 45 feet by 115 feet for perimeter lots and 45 feet by 105 feet for lots with lake frontage. Perimeter lots are shown with minimum front yard setbacks of 22.5 feet for one story homes, which can be no more than 20% of the homes, and typical setbacks are 25 feet. Side yard setbacks are typically 10 feet on one side and zero on the other. Roofs are allowed to encroach in the side yard setbacks up to 1 foot. Rear yard setbacks are shown with a 20-foot setback, which includes the 10-foot landscape buffer. Screen enclosure setbacks are five feet. Lots with lake frontage are similar in all proposed dimension with the exception of the rear yard setbacks, which are reduced to a minimum of 10 feet from the abutting water management tracts. The building envelopes are allowed to a maximum of 55% of lot coverage and covered patios are restricted to remain within the building envelope. Review Based on Criteria The criteria used to review Comprehensive Plan amendments and rezonlngs are listed in the Land Development Regulations, Chapter 2, Section 9, Administration and Enforcement, Item C. Comprehensive Plan Amendments: Rezonings. These criteria are required to be part of a staff analysis when the proposed change Includes an amendment to the Comprehensive Plan Future Land Use Map. Pursuant to Section 9.C.2(2) of the Land Development Regulations, however, staff Is not required to review the petition against the eight (8) crlterfa Indicated in Section 9.C.7., when the petition Is consistent with the city's Comprehensive Plan Future Land Use Map designation for properties to be annexed. Instead, staff analysis will relate to consistency with other relevant portions of the Comprehensive Plan, the city's annexation program and service capability consistent with Policy 8.10.5 of the Intergovernmental Coordination Element of the Comprehensive Plan. At present, the subject property Is occupied by a partially completed single-family residence. Sole access to the property is provIded through an easement from Redding Road, approximately Page 4 File Number: LUAR 05-006 Name: Knollwood Groves II 100 feet to the south of the southern property boundary. Upon annexation, the property will be included in the Knollwood Groves PUD development. Vehicular access will be through that PUD, as will the provision of water and sewer services. The present access easement will be abandoned. The applicant has projected the population of the proposed housing units at 2.5 persons per household for a total population of 63 residents. Utilizing this projection and the City's adopted levels of service, staff estimates the water usage at 500 gallons per day per household (200 gallons per day per capita x 2.5) or 12,500 gallons per day. Wastewater service demand would be 225 gallons per day per household (90 gallons per day per capita x 2.5) or 5,625 gallons per day. Traffic impact analysis for the parcel, submitted in a study prepared by consultants for the applicant, shows that the proposed land use designation Is consistent with the Transportation Element of the Palm Beach County Comprehensive Plan. The proposed use of the property will generate an additional 235 trips per day. With respect to solid waste, the Palm Beach County Solid Waste Authority has stated that adequate capacity exists to accommodate the county's municipalities throughout the 10-year planning period. The School District of Palm Beach County has reviewed the application and has determined that adequate capacity exists to accommodate the resident population. Lastly, drainage will also be reviewed in detail as part of the review of the site plan application, and must satisfy all requirements of the city and local drainage permitting authorities. CONCLUSIONS/RECOMMENDATIONS As indicated herein, this request is consistent with the intent of the Comprehensive Plan; will not create additional impacts on infrastructure that have not been anticipated in the Comprehensive Plan; will be compatible with adjacent land uses and will contribute to the overall economic development of the Oty. Therefore, staff recommends that the subject request be approved. If the Planning and Development Board or the City Commission recommends conditions, they will be included within Exhibit "B". ATTACHMENTS S:\Plannlng\SHARED\WP\PROJECTS\Knollwood Groves PUD\Knollwood D\lUAR 05-oo6\STAFF REPORT KNOUWOOD n.doc t- fl ~ '-- l I / ~ f~x ~/ ,/ - \ ~ ." I / = ~" ,..-- ;;=; - ~ - r-TT /' J I I \' I I ~ --KH LOCATION MAP Knollwood II ANEX 05-002 & LUAR 05-006 I f-- - - - I- I I I ! ~ ~\ I I I I, 1/1 ; I J I ~~::::: :::: - - ::::: ::: ....... :--.. ---/1 I r I I I III II ~ ~ )VKE-e: .-V \. "<LLillJ ~ ~IJ I ~!.=z \ v ~ = '- f.-.\(, 'x\'.7 = ,",' - ~' I- ;> J- \~ ~J-{j ~ \\Yl, I I H I ~ f)~ ,,~~ , ...-'v I sl~15 ;: ... .. f ~\ 1/ @jju~ i--- 1--_ r- f---l - I-- - - - , - ( - v ~ ~ ~~\(frJ <') 11 [~~:\""~J ~ ,'\ \.l,.: ~ - --.., -- I-- - I--- --11--- I Exhibit A EDon_ H8KlIot:-8fR-' rttAI:!:MAftK-et1h ..-.......-......-.. -- II =~I ~ ':L I I \>~ V T '\ ~ I~ lIT I ~ L ------ \ ::~t:[lF= 7 I- \L I I \ \ II .1 - CI S COVE r---- /j I I \'\: ~\ 'j~ ~ ;::::: t::::"'- - \0~ -.....,::::- - = I I .~ I ////1 770 385 o .#. "--.. "- 1 t::( ~T ( \ - 770 Feet /t((\"'.' 0." .~^^ ~ \ '" r /,'{" io .._.,---~) Y, XII. - LEGAL ITEM A.S eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORlVI Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Offic~ ~ August 2, 2005 July 18,2005 (Noon) D October 5, 2005 September 19,2005 (Noon) D August 16, 2005 August 1,2005 (Noon) D October 18, 2005 October 3, 2005 (Noon) D September 6, 2005 August 15,2005 (Noon) D November I, 2005 October 17,2005 (Noon) D September 20, 2005 September 6, 2005 (Noon) D November 15, 2005 October 31,2005 (Noon) NATURE OF AGENDA ITEM ) J--l D Administrative D Development Plans ~:~ -..< D Consent Agenda D New Business D Public Hearing ~ Legal N t.-:J ~ -- ... D Bids D Unfinished Business -""- ~o :"'-:"--1 D Announcement D Presentation ,~~ -~ ~ N .;:;~- D City Manager's Report .. ---ilW c'j -PI t"'--")1> C:) c"o - RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Legal, Ordinance - Second Reading. The City Commission approved the subject request on July 19, 2005 under Public Hearing and Legal, Ordinance - First Reading. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-109. EXPLANATION: PROJECT: AGENT: OWNER: LOCATION: DESCRIPTION: Gerrity Rezoning (REZN 05-004) Bradley Miller, Miller Land Planning Consultants, Inc. Bill Gerrity, Inc. NE 8th Avenue at NW 10th Street Request to rezone 2.54 acres from R-l-AA Single Family Residential to R-I-A Single Family Residential (Future Land Use classification to remain Low Density Residential (LDR)) for the ultimate development of 10 single family residential lots. PROGRAM IMPACT: FISCAL IMPACT: ALTERNATIVES. 1 cJ L-L Planning and Z~g Director City Attorney / Finance / Hwnan Resources S:\Planning\SHARED\WP\PROJECTS\Skylake\REZN 05-004\Agenda Item Request Gerrity Rezoning REZN 05004 8-2-05.dot S:\BULLET1N\FORMS\AGENDA ITEM REQUEST FORMJ)OC Friday, July 22,200510:57 AM MLPC 5612721042 MILLER LAND PLANNING CONSULTANTS, INC. /1 /I-n Cy~'::';:J' C//" ;,/a.-;c k:;A-l02 ~/!U;<'2/I(d iJ! Izz-tp-J / . ~. .../ . (/ r..,. C .".-._/ /L..-cf-;tr:.;;>:(vc.c;/...li:.r.j....... u 298 PINEAPPLE GROVE WAY DElRAY BEACH, FLORIDA 33444 PHONE . 561/272~ FAX.561/272-1042 July 22, 2005 Dick Hudson CITY OF BOYNTON BEACH PLANNING & ZONING DEPARTMENT 100 E. Boynton Beach Boulevard Boynton Beach. FL 33425.0310 RE: Sky Lake Dear Dick; ThiS letter requests a postponement from the August 'J!"4 aty CommiSsion meeting for the above referenced project to the August 16th aty Commission meeting. Please contact our office for any que$tions or comm~nb. Sincerely, MILLER LAND PLANNING CONSULTANTS, INe",", ~ 6. tuf/--- President cc: Bill Gerrffy M:\M L P C\PRO.IE~\SIcy la~e\O.. Hudsoft ~~ 1 ORDINANCE NO. 05-040 2 3 AN ORDINANCE OF THE CITY OF BOYNTON 4 BEACH, FLORIDA, REGARDING THE 5 APPLICATION OF BILL GERRITY, INC., TO 6 REZONE A PARCEL OF LAND, AMENDING 7 ORDINANCE 02-013 TO REZONE A PARCEL OF 8 LAND LOCATED ON NORTHWEST 8TH COURT 9 NORTH OF OLD BOYNTON ROAD AND EAST OF 10 CONGRESS AVENUE, BOYNTON BEACH, 11 FLORIDA, AS MORE FULLY DESCRIBED HEREIN, 12 FROM R-l-AA SINGLE FAMILY RESIDENTIAL TO 13 R-I-A SINGLE FAMILY RESIDENTIAL; 14 PROVIDING FOR CONFLICTS, SEVERABILITY, 15 AND AN EFFECTIVE DATE. 16 1 7 WHEREAS, the City Commission of the City of Boynton Beach, Florida has adopted 18 Ordinance No. 02-013, in which a Revised Zoning Map was adopted for said City; and 19 WHEREAS, Bill Gerrity, Inc., owner of the property located on Northwest 8th Court, 20 north of Old Boynton Road and east of Congress A venue in Boynton Beach, Florida, as more 21 particularly described herein, has filed a Petition, through its agent, pursuant to Section 9 of 22 Appendix A-Zoning, of the Code of Ordinances, City of Boynton Beach, Florida, for the 23 purpose of rezoning a parcel of land, said land being more particularly described hereinafter, 24 from R-l-AA Single Family Residential to R-I-A Single Family Residential; and 25 WHEREAS, the City Commission conducted a public hearing and heard testimony 26 and received evidence which the Commission finds supports a rezoning for the property 27 hereinafter described; and 28 WHEREAS, the City Commission deems it in the best interests of the inhabitants of 29 said City to amend the aforesaid Revised Zoning Map as hereinafter set forth. 30 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF S:\CA \Ordinances\Planning\Rezoning\Rezoning - Gerrity.doc 1 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 2 Section I. Thc foregoing Whcrcas clauses are true and correct and incorporatcd 3 herein by this reference. 4 Section 2. The following described land, located on Northwest 8th Court, north of 5 Old Boynton Road and east of Congress A venue in the City of Boynton Beach, Florida, as sct 6 forth as follows: 7 TRACT 19 OF SUBDIVISION OF SECTION 29 AND 20, TOWNSHIP 8 45 SOUTH OF RANGE 43 EAST, ACCORDING TO THE PLAT 9 THEREOF AS RECORDED IN PLAT BOOK 7, PAGE(S) 20, OF THE 10 PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. 11 12 13 be and the same is hereby rezoned from R-l-AA Single Family Residential to R-I-A Single 14 Family Residential. A location map is attached hereto as Exhibit "A" and made a part of this 15 Ordinance by reference. 16 Section 3. That the aforesaid Revised Zoning Map of the City shall be amended 1 7 accordingly. 18 Section 4. All ordinances or parts of ordinances III conflict herewith are hereby 19 repealed. 20 Section 5. Should any section or provision of this Ordinance or any portion thereof be 21 declared by a court of competent jurisdiction to be invalid, such decision shall not affect the 22 remainder of this Ordinance. 23 Section 6. This ordinance shall become effective immediately upon passage. 24 FIRST READING this K day of J u. I 'f ,2005. 25 26 S:ICA 10rdinancesIPlanninglRezoninglRezoning' Gerrity.doc 1 SECOND, FINAL READING and PASSAGE this _ day of ,2005. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ATTEST: 18 19 20 City Clerk 21 22 (Corporate Seal) CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner S:\CA \Ordinances\Planning\Rezoning\Rezoning - Gerrity.doc TO: FROM: THROUGH: DATE: PROJECT NAME/NUMBER: REQUEST: DEVELOPMENT DEPARTMENT PLANNING &. ZONING DIVISION MEMORANDUM NO. PZ OS-109 Chair and Members Planning and Development Board and Mayor and City Commission Dick Hudson, AIC~ Senior Planner ~ Michael W. Rum--;<t\1 Director of Planning and Zoning June 15, 2005 Gerrity Rezoning (Sky Lake) REZN 05-004 Rezone the property from R-1-AA to R-1-A in order to subdivide the parcel consistent with abutting residential development Property Owner: Applicant! Agent: Location: Parcel Size: Existing Land Use: Existing Zoning: Proposed Land Use: Proposed Zoning: Proposed Use: Adjacent Uses: PROJECT DESCRIPTION Bill Gerrity, Inc. Bill Gerrity, Inc./Miller Land Planning Consultants, Inc. On NW 8th Court north of Old Boynton Road and east of Congress Avenue (Exhibit "A") 2.54 acres Low Density Residential (LDR) R-1-AA Single Family Residential No change R-1-A Single Family Residential 10 single family lots The property is surrounded by single family residential development designated Low Density Residential (LDR) and zoned R -l-AA-Single Family Residential. Page 2 Rle Number: REZN 05-004 Gerrity (Sky Lake) Rezoning EXECUTIVE SUMMARY Staff recommends approval of the requested land use amendment and rezoning for the following reasons: 1. The requested rezoning meets the criteria required for review found in the Land Development Regulations; 2. The rezoning is reasonably compatible with adjacent development and will provide additional single family homes to the market; however, 3. Approval should be conditioned on dedication of additional rights-of-way to ensure that abutting streets meet the minimum City standards. PROJECT ANALYSIS The parcel, which is the subject of this rezoning, totals 2.54 acres. Since the property is designated Low Density Residential, no change to the land use designation is required; therefore, a review by the Rorida Department of Community Affairs is not required. The criteria used to review both Comprehensive Plan amendments and rezonings are listed in the Land Development Regulations, Chapter 2, Section 9, Administration and Enforcement, Item C. Comprehensive Plan Amendments: Rezonings and are required to be part of a staff analysis. a. Whether the proposed rezoning would be consistent with applicable comprehensive plan policies including but not limited to, a prohibition against any increase in dwelling unit density exceeding 50 in the hurricane evacuation zone without written approval of the Palm Beach County Emergency Planning Division and the Oty's risk manager. The planning department shall also recommend limitations or requirements, which would have to be imposed on subsequent development of the property, in order to comply with policies contained in the comprehensive plan. The property is not located in the hurricane evacuation zone; therefore the first part of the criterion is not applicable. Policy 1.17.5 of the Land Use Element reads: "The City shall continue to maintain and improve the character of existing single- family and lower-density neighborhoods, by preventing conversions to higher densities, except when consistent with adjacent land uses. . ." To the northeast and east of the subject property, lot widths in the Laurel Hills 5th addition were originally platted in 1951, with 50-foot widths. Lots in the Glen Arbor subdivision, the abutting property to the south, were platted in 1959, with widths averaging 65 feet. Both of these are inconsistent with today's regulations for property in the R-l-AA zoning district, which require a minimum lot frontage of 75 feet. For other surrounding property, platted more recently and Page 3 File Number: REZN 05-004 Gerrity (Sky Lake) Rezoning after subdivision regulations required an increase in lot sizes, properties have widths more consistent with the present requirements of the R-1-AA regulations. The proposed development of the subject parcel, with 10 lots each having 64 -foot frontage, will be consistent with surrounding development, and specifically with the abutting residential development to the south, where the property was platted with lot frontages ranging from 62 feet to 65 feet. It should be noted that the Land Development Regulations (Chapter 6-Required Improvements) require a minimum 50-foot right-of-way width for local streets in subdivisions and states, "The new subdivision shall provide for the incorporation and compatible development of present and future streets. . ." The survey for the subject property shows platted rights-of-way of only 30 feet; therefore, staff recommends a dedication of additional rights-of-way for the three street segments abutting the subject property. b. Whether the proposed rezoning would be contrary to the established land use pattern or would create an isolated district unrelated to adjacent and nearby distri~ or would constitute a grant of special privilege to an individual property owner as contrasted with the protection of the public welfare. The proposed rezoning would apparently create an isolated district, which could be viewed as "spot zoning"; however, the present single family residential zoning district and the requested single family residential zoning district differ in minimum lot size (8,000 square feet as opposed to 7,500 square feet). Front and rear setback requirements are the same for each district, side setback requirement are 2-1/2 feet less, and minimum living area requirements are 250 square feet less for the R-1-A district; however, these should have minimum to no impacts on the neighborhood. As discussed above, the resulting residential lots would relate to the abutting lands to the south, which have an average lot frontage of 65 feet. Granting this request would not constitute a grant of special privilege to an individual property owner. c. Whether changed or changing conditions make the proposed rezoning desirable. The changes to the land development regulations, requiring greater lot frontage for property developed under the R-1-AA zoning, have made some of the adjacent properties, which were developed prior to adoption of the present code, nonconforming. The applicant is proposing to develop the subject property in a pattern similar to these adjacent properties. d. Whether the proposed use would be compatible with utility systems, roadways, and other public facilities. At the current density, the property could be developed for 8 single family homes; the requested density would allow for an additional 2 single family residences for a total of 10. The increase of 2 units will have place minimal demands on the water and sewer systems. The applicant has stated that the traffic impacts from the proposed development will add 1,000 trips per day (based on 10 trips per day for the use) but only 20 more than if developed under the present zoning. With respect to solid waste, the Palm Beach County Solid Waste Authority has stated that adequate capacity exists to accommodate the county's municipalities throughout the 10- Page 4 File Number: REZN 05-004 Gerrity (Sky Lake) Rezoning year planning period. The School District of Palm Beach County has reviewed the application and has determined that adequate capacity exists to accommodate the resident population. Lastly, drainage will also be reviewed in detail as part of the review of the conditional use application, and must satisfy all requirements of the city and local drainage permitting authorities. e. Whether the proposed rezoning would be compatible with the current and future use of adjacent and ,nearby propertiesl or would affect the property values of adjacent or nearby properties. As discussed earlier under Items "a" and "b", the proposed rezoning would be compatible with adjacent properties. f. Whether the property is physically and economically developable under the existing zoning. Under the present R-l-AA zoning the property could be subdivided into 8 lots; whereas, under the requested R-l-A zoning, it could be subdivided into 10 lots. In either case, there would be sufficient land remaining to increase the right-of-way widths for the abutting substandard streets. g. Whether the proposed rezoning is of a scale which is reasonably related to the needs of the neighborhood and the city as a whole. Criteria for evaluating the benefits of the proposed development to the needs of the neighborhood and the City include service demands, density, use, value and consistency with Comprehensive Plan policies. As indicated above, ample capacity exists to serve the maximum potential service needs generated by the proposed project. The proposed density is consistent with that allowed by the land use designation, and while it is slightly higher than that of the single-family residential property to the north, it is similar to that of the adjacent developed property to the south. h. Whether there are adequate sites elsewhere in the city for the proposed use, in districts where such use is already aI/owed. While over 340 small scattered vacant residential lots exist throughout the city (a total of 72 acres), there are only three properties designated for low density residential development, including the subject site, which are greater than 2 acres in size. CONCLUSIONS/RECOMMENDATIONS As indicated herein, this request is consistent with the intent of the Comprehensive Plan; will not create additional impacts on infrastructure that have not been anticipated in the Comprehensive Plan; will be compatible with adjacent land uses and will contribute to the overall economic development of the City. Therefore, staff recommends that the subject request be approved with the condition that additional rights-of-way be provided to widen Page 5 File Number: REZN 05-004 Gerrity (Sky Lake) Rezoning adjacent streets to meet minimum City standards. If the Planning and Development Board or the City Commission recommends conditions, they will be included within Exhibit "B". ATTACHMENTS ];\SHRDATA\Plannlng\HUDSON\COMP PLAN PROCESS\STAFF REPORT NEW,doc I\LI 7("' NWnHAVE ~~ :c ~ i ~~~,.. v:~~ " / / # 1 ~ ~w~; ~ y ~ -------- ~ ~ L--_ ! ll/ ---.." - - f---- G - :c t ... -~ - - I--- LOCATION MAP Gerrity Property REZN 05-004 G ~ ... ~ z I;) % .. o ... I;) % Ii; ~ I ~ % !l ~ ., . .",.",,: .-/ SI:zr11i:F NW 10TH AVE NW 9TH WAY ~i I ~ ~ ~ ~ NW 8TH AVE I co -I ::I: !l OLD BOYNTON RD I I I 300 150 o z~ ~ ~ ::I: (II -I ./ NW 6TH AVE 300 Feet Exhibit A - - - - f- I- L- Z '\ ~ /' ~ % !l N A EXHIBIT "B" Conditions of ADproval Project name: Gerrity Rezoning File number: REZN 05-004 Reference: Rezoning application prepared bv Miller Land Planninq Consultants, Inc. I DEPARTMENTS I INCLUDE I REJECT I I PLANNING AND ZONING j I 1. Provide additional rights-of-way, easements and related X improvements as required by the Engineering Department for NW 10th Street, NW 8th Court, and the unnamed street (NW 9th Avenue) on the north; and provide a utility easement (if required) along the south property line. ADDmONAL PLANNING AND DEVELOPMENT BOARD CONDmONS 1. To be determined. ADDmONAL cm COMMISSION CONDmONS 1. To be determined. eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORNI XII. - LEGAL ITEM A.6 Requested City Commission Meeting Dates Date Final Form Must be Turned in to City Clerk's Office Requested City Commission Meeting Dates Date Final Form Must be Turned in to City Clerk's Office September 6, 2005 (Noon) o October 5, 2005 o October 18, 2005 o November I, 2005 o November IS, 2005 September 19,2005 (Noon) [8J August 2, 2005 o August 16,2005 o September 6, 2005 o September 20, 2005 July 18, 2005 (Noon.) August I, 2005 (Noon) October 3, 2005 (Noon) August 15,2005 (Noon) October 17, 2005 (Noon) October 31, 2005 (Noon) '__' I --.., ._~... NATURE OF AGENDA ITEM o Administrative o Consent Agenda o Public Hearing o Bids o Announcement o City Manager's Report o Development Plans o New Business [8J Legal o Unfinished Business o Presentation -rr N C) ---.""'\ f<J -~ ~? -~~ -"- ~;'1"'~"; -'-':lf1 C) "> {T1G c..." C0 RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Legal, Ordinance- Second Reading. The City Commission approved the subject request on July 19, 2005 under Public Hearing and Legal, Ordinance - First Reading. Note that the ordinance reflects the recommendation of staff, as supported by the Board, for maximum height to be 60 feet, and corresponding change to setbacks that increase with height above 45 feet. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-100. EXPLANATION: PROJECT: Maximum building heights in Public Usage Zoning District -hospitals (CDRV 05-012) Shayne Conover, Kilday & Associates N/A City wide (Public Usage (PU) zoning district) Request to amend the Land Development Regulations, Chapter 2 Zoning, Section 5(1)(2) to increase maximum building height for hospitals from 45 feet to 75 feet, while retaining existing maximum floor provision of four (4) stories. AGENT: OWNER: LOCATION: DESCRIPTION: PROGRAM IMPACT: FISCAL IMP ACT: ALTERNATIVES: N/A N/A N/A p~~ !:'rZC;!:nITooto, City Attorney I Fm""e I Human Rew""" S:\Planning\SHARED\WP\SPECPROJ\CODE REVIEw\CDRV 05-012 building height - hospitals\Agenda Item Request Max Bldg Hghts in Public Usage Hasp CDRV 05-012 8-2-05.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC 29 30 31 32 33 34 35 36 37 38 39 1 2 3 4 5 6 7 8 9 10 11 12 13 ORDINANCE NO. 05- 041 AN ORDINANCE OF THE CITY OF BOYNTON BEACH, FLORIDA AMENDING LAND DEVELOPMENT REGULATIONS, CHAPTER 2 "'ZONING", SECTION 5(J)(2) "PUBLIC USAGE DISTRICT"; PROVIDING FOR INCREASE IN MAXIMUM BUILDING HEIGHT FOR HOSPITALS FROM 45 FEET TO 60 FEET WHILE RETAINING EXISTING MAXIMUM FLOOR PROVISIONS OF FOUR (4) STORIES; PROVIDING FOR CONFLICTS, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. 14 WHEREAS, the City has received a request on behalf of Bethesda Hospital for amendment to the City's Land Development Regulations to allow an increase to the maximum height of buildings for hospitals only; and WHEREAS, the City Commission finds that it is in the best interest of the public to allow hospital buildings to exceed forty-five (45) feet, subject to the criteria hereinafter set forth. 15 16 17 18 19 NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 20 21 Section 1. The foregoing whereas clause is true and correct and is now ratified and 22 confirmed by the City Commission. 23 Section 2. Chapter 2. "Zoning", Section 5.J.2. of the Land Development 24 Regulations of the City of Boynton Beach Code of Ordinances is hereby amended by adding 25 the words and figures in underlined type, and by deleting the words and figures in struck- 26 through type as follows: 27 Sec. 5.J. PU PUBLIC USAGE DISTRICT. 28 2. Building and site regulations. No building or portion thereof shall be erected, constructed, converted, established, altered, enlarged or used unless the premises and building comply with the following regulations: Minimum lot frontage Minimum lot area Minimum front yard Minimum side yard Minimum rear yard Maximum structural height 75 feet 8000 square feet 25 feet 15 feet, each side* 25 feet* 45 feet, not to exceed four (4) stories S:\CA \Ordinances\LDR Changcs\Amdending LDR - 2512 Building height hospitals. doc I 2 3 4 5 6 7 8 9 10 II Maximum structural height (hospitals only) 60 feet, not to exceed four (4) stories *When abutting residential districts, side and/or rear yard shall be thirty (30) feet. For hospital buildings, additional setback in excess of thirty (30) feet shall be required for any height over forty-five (45) feet. The additional setback shall be measured by calculating three (3) additional feet of setback for each foot in height above forty-five (45) feet, not including minimal roof top equipment that are eligible for a height exception, per Section 4.F.2. Section 3. Each and every other provision of the Land Development Regulations 12 not herein specifically amended, shall remain in full force and effect as originally adopted. 13 Section 4. All laws and ordinances applying to the City of Boynton Beach in 14 conflict with any provisions of this ordinance are hereby repealed. 15 Section 5. Should any section or provision of this Ordinance or any portion 16 thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not 17 affect the remainder of this Ordinance. 18 Section 6. Authority is hereby given to codify this Ordinance. 19 Section 7. This Ordinance shall become effective immediately. 20 FIRST READING this ,Gt day of July, 2005. 21 SECOND, FINAL READING AND PASSAGE this day of 22 August, 2005. 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 ATTEST: 39 40 41 City Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner S:\CA\Ordinances\LDR Changes\Amdending LDR - 25J2 Building height hospitals. doc DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 05-100 TO: Chair and Members Planning and Development Board Michael W. RU~~ Director of Planning and Zoning Ed Breese ~ Principal Planner THROUGH: FROM: DATE: June 17, 2005 SUBJECT: CODE REVIEW (CDRV 05-012) Maximum Building Height in Public Usage Districts - Hospitals only NATURE OF REOUEST Ms. Shayne Conover of Kilday & Associates, representing Bethesda Hospital, is requesting an amendment to the City's Land Development Regulations to allow an increase to the maximum allowed height in excess of the 45-foot limitation contained within the Public Usage (PU) zoning districts, for hospitals only (see Exhibit "A" - Justification Statement). BACKGROUND Bethesda Memorial Hospital is requesting to construct a four (4) story, 86,167 square foot addition at the northeast corner of the existing hospital building, in order to provide a Comprehensive Heart Center. The City's Land Development Regulations Chapter 2, Section 5(1)(2) establishes the maximum building height within the Public Usage (PU) districts. According to the current regulations, the maximum allowable height is 45 feet, not to exceed four (4) stories. The applicant is requesting a modification of these regulations to acconnnodate the Comprehensive Heart Center addition to the hospital. This addition would extend vertically for four (4) stories, which meets one of the criteria under height determination. However, the building would extend to a height of 55 feet - 10 inches to the roof deck, with the top of the parapet wall at 59 feet - 9 inches. Additionally, the stair tower is depicted at a height of 68 feet - 11 inches, which according to Chapter 2, Section 4.F.2, would be eligible for consideration of approval by the City Commission for a Height Exception. As proposed, the applicant is requesting to amend the Land Development Regulations, Chapter 2 Zoning, Section 5(1)(2) to increase maximum building height for hospitals from 45 feet to 75 feet, while retaining the existing maximum floor provision of four (4) stories. Page 2 CDRV 05-012 ANALYSIS The applicant has submitted a Code Review request to amend the allowable height in Public Usage (PU) districts, for hospitals only, to increase maximum building height for hospitals from 45 feet to 75 feet, while retaining the existing maximum floor provision of four (4) stories. The consulting firm Kilday & Associates, Inc. has submitted this request on behalf of representatives for the Bethesda Memorial Hospital. The request has been made to facilitate the planned addition of the Comprehensive Heart Center to the existing hospital. The Comprehensive Heart Center, as proposed would be four (4) levels, extending to a height of 55 feet - 10 inches to the roof deck, with the top of the parapet wall at 59 feet - 9 inches. However, the stair tower is depicted at a height of 68 feet - 11 inches, which would exceed the existing maximum allowable height of 45 feet in the PU zoning district by 23 feet - 11 inches. Understanding that a stair tower, according to Chapter 2, Section 4.F.2, would be eligible for consideration of approval by the City Commission for a Height Exception, staff reviewed the minimum required amendment to the code to accommodate the proposed expansion. Staff also reviewed the information submitted by the applicant explaining the need for each floor of the addition to be approximately 15 feet in height, as opposed to typical building construction of 10 - 12 feet per floor. The justification of the subject amendment is based on limitations of the existing site, functionality and equipment needs unique to a hospital. A cross-section of the proposed addition (See Exhibit "B") indicates that the addition would be constructed over the existing ambulance port, requiring a minimum of fourteen (14) feet of clearance for emergency/rescue vehicles. The next floor, as depicted on the cross-section drawing, would be primarily devoted to mechanical equipment and exceed thirteen (13) feet in height. The next floors, the 3rd and 4th levels, would have a minimum of 9 feet from floor to ceiling, with nearly six (6) feet space above the ceiling on each floor to accommodate the typical mechanical equipment for each floor, plus that equipment unique to, or oversized for hospitals, housing conduits and conveyances such as, oxygen lines, fire suppression, water lines, medical air, air handler equipment, vacuum and exhaust lines, etc. Correspondence from the applicant reads as follows: "The necessity of the proposed height of this expansion is due to the fact that all the hospital infrastructure to serve the surgical center and patient rooms, such as telecommunications, heating and ventilating, oxygen, etc. will run between eachfloor", and "The hospital must have the necessary clearance between each floor to be able to add more clinical space otherwise the facility would be limited to build only office space. ... There is no opportunity for the hospital to secure adjacent property for expansion so they are forced to build vertically to be able to continue to provide medical services to a growing population. " As noted in the preliminary review of this proposed code amendment, prepared for City Commission input at their June 21, 2005 meeting, the zoning regulations have historically recognized the special height needs of hospitals and their related buildings. A special height provision within the C-l zoning district allows the maximum height for hospitals to be 45 feet compared to all other buildings in the district, which are limited to 30 feet. Taking into account the information provided by the applicant, the surrounding land uses most affected by such a code amendment, expansion obstacles and the valuable services to be provided as a result of the proposed expansion, staff recommends the following code amendment language to the Public Usage (PU) District: Page 3 CDRV 05-012 Amend Section 5.J.2. - Maximum Structural Height, as follows: Maximum Structural Height 45 feet, not to exceed four (4) stories. Maximum Structural Height (Hospitals only). 60 feet, not to exceed four (4) stories. Maximum Side Yard Maximum Rear Yard 15 feet, each side* 25 feet* *When abutting residential districts, side and/or rear yard shall be thirty (30) feet. For hospital buildings. additional setback in excess of thirty (30) feet shall be required for any height over forty-five (45) feet. The additional setback shall be measured by calculating three (3) additional feet of setback for each foot in height above forty-five (45) feet, not including minimal roof top equipment that are eligible for a height exception, per Section 4.F.2. Currently, the rear and side setback for the Public Usage (PU) district where it abuts a residential district is thirty (30) feet. This additional setback as recommended would, in the case of a sixty (60) foot tall building, increase the building setback from the current requirement of 30 feet to 75 feet. The City Commission, at their June 21, 2005 meeting, preliminarily reviewed the proposed amendment and directed staff to continue processing the Code Review request. RECOMMENDATION Staff recommends that the proposed amendments to Chapter 2. Zoning of the City's Land Development Regulations, specific to height regulations within the Public Usage (PU) zoning district, be approved as modified, to increase the maximum height for hospitals in the PU District to sixty (60) feet, while increasing the associated setbacks by three (3) additional feet of setback for each foot in height above forty-five (45) feet, not including minimal roof top equipment that are eligible for a height exception, per Section 4.F.2. Any conditions recommended by the Board will be forwarded to the City Commission and ultimately incorporated into an ordinance for final adoption. J:\SHRDATAIPLANNlNG\SHAREDlWPISPECIAL PROJECTSICDRV\MAX HEIGHT IN PU DISTRICTS CDRV 05-012.DOC Kilday Be Associates landscape Architects I Planners 1661 Forum Place, Suite 100A West Palm Beach, Florida 33401 (5611689-6522' Fax (6611689-2592 E-Mail: Info@klldaylnc.com May 11,2005 t:)\HII:SII A Mr. Ed Breese, Principal Planner City of Boynton Beach Planning Division 2nd Floor 100 E. Boynton Beach Blvd. P.O. Box 310 Boynton Beach, Florida 33425 Re: Code Review Request for Bethesda Memorial Hospital Comprehensive Heart Center Our File No. 352.23 Dear Mr. Breese: Thank you very much for the comments based on your review of the Code Review request that was submitted to your office on May 6, 2005. Based on our phone conversation yesterday, you mentioned that it is Planning staffs recommendation that the following revision be made to the proposed code language. This revision would identify the maximum structural height allowed in the City of Boynton Beach in the Public Usage (PU) zoning district specifically for Hospitals. This Code Review request is to deviate from Chapter 2..5~J.2. and to revise the code language to read as follows (proposed chanQes showni" bold and underlined) : 2. Building and site regulations. No building or portion thereof shall be erected, constructed converted, established, altered enlarged or used unless the premises and building comply with the following regulations: Minimum lot frontage Minimum lot area Minimum front yard Minimum side yard Minimum rear yard Maximum structural height Maximum structural helQht lHosDltal Onlvl 75 feet 8000 square feet 25 feet 15 feet, each slde* 25 feet* 45 feet, not to exceed four (4) stories 75 feet. not to exceed four W II2d!! Mr. Ed Breese May 11.2005 Page 2 of 2 As outlined in my letter to you dated May 6th, this revision Is being requested due to the fact that there are unique conditions that apply to Hospitals In comparison to other structures or buildings that are in the Public Usage (PU) zoning district. Therefore, the request Is necessary to allow the hospital to construct the proposed Comprehensive Heart Center, in excess of the current height requirement. Thank you for your continued assistance. Sincerely. ~~Wz-~"'~L Shayne CoboVer /1;. co: Bob Broadway (Bethesda Memorial Hospital) Tom Porter (Bethesda Memorial Hospital) Mike Rumpf (City of Boynton Beach) H:lCllent/352.231Correspondence/Breese Ietter.5-11-QS.doc Kilday & Associates Landscape Architects / Planners 1551 Forum Place, Suite 100A West Palm Beach, Florida 33401 1561) 689-5522. Fax (561) 689-2592 E-Mail: info@kildayinc.com May 6, 2005 Mr. Ed Breese, Principal Planner Planning Division 2nd Floor City of Boynton Beach 100 E. Boynton Beach Blvd. P.O. Box 310 Boynton Beach, Florida 33425 Re: Code Review Request for Bethesda Memorial Hospital Comprehensive Heart Center Dear Mr. Ed Breese: Kilday & Associates, Inc. as agent for the applicant/property owner Bethesda Memorial Hospital is requesting a Code Review from the City of Boynton Beach Land Development Regulations Chapter 2.5.J.2. which the maximum height for any building, or portion of a building, to be constructed shall not exceed 45 feet and a maximum of four stories in the Public Usage (PU) zoning district in the City of Boynton Beach. This Code Review request is to deviate from Chapter 2.5.J.2. and to revise the code language to read as the following: Maximum structural height 45 feet, not to exceed four (4) stories:: **The City Commission may approve additional height when it is demonstrated that structural and/or technical requirements result in a need for additional floor heiqhts for public health and safety purposes. However, in no case shall the four (4) stOry maximum be exceeded. Due to the fact that the site is utilized as a Hospital there are unique conditions that apply to this building in comparison to other structures or buildings that are in the Public Usage (PU) zoning district. Therefore, the request is necessary to except the hospital from the maximum 45 feet in height requirement. A Major Site Plan Modification application was originally submitted on April 6, 2005 to expand the existing Hospital Site Plan. The Hospital's existing total square footage is 586.819 square feet. This expansion is 86,167 square feet, which brings the proposed Hospital total building square footage to 672.986 square feet. '\ Mr. Ed Breese Page 2 of2 A "Partial Building Section" detail that is provided by HDR Architecture, Inc. is attached to this letter to show the abundance of mechanical equipment that is in between each floor. For orientation purposes of this section detail, to the left of station 107 is the existing portion of the hospital and to the right of this station is the proposed Heart Center addition. The space between each floor is utilized by mechanical ductwork, piping and electrical clearances. The necessity for the proposed height of this expansion is due to the fact that all the hospital infrastructure to serve the surgical center and patient rooms, such as telecommunications, heating and ventilating, oxygen, etc. will run between each floor. The air handler unit (AHU) as shown on this detail section and is located in between the space of the proposed second and third level. This particular unit is the minimum size required and will extend as tall as the entire floor. Also, this air handler unit is the maximum size the architects can specify without using a custom built unit, which would pose financial constraints on the project. Therefore, this specific space between the second and third level is the most constrictive area within the overall building. The hospital must have the necessary clearance between each floor to be able to add more clinical space otherwise the facility would be limited to build only office space. With this construction project, the hospital is trying to maximize clinical space to not disrupt the hospital functions in the future. There is no opportunity for the hospital to secure adjacent property for expansion so they are forced to build vertically to be able to continue to provide medical services to a growing population. They must work within the constraints of their existing site and within the parameters of the existing building. For these reasons, we would like to be considered for a code review. Thank you for your continued assistance. Sincerely, ~~~ Shayne Conover Attachments: Exhibit A cc: Tom Porter (Bethesda Hospital) H:lCllentl352.231Correspondence/Code Review RequesL5-3-OS.doc ABBREV I AT IOtiS AHlI . AIR H.IIIllING IItIT CI . CHilLED om CIR . CHIUJ1l OTER RElIIIIl CWS . CHIUJ1l nIDI SlI'PL Y U . EXHAUST AIR EF . EXHAUST F 10/1 FIRE. FIJI[ SPRINKLER L1~ Hf "1lOT fA TER Hie " HIlI lATER ClflQl.ATlOll PIPE HlIR . HIlI lATER IiEl1IUI HWS "HIlI lATER SUPl'LY 1M "IEDICAl AIR o " OXYGEII RA " RElIIIIl AIR SA " Sll'Pl YAIR TtIR " lERIIltW. UIIIT REHEAT V II YACWN VVR " VARiABlE VlLUM; REHEAT BOX EXHIBIT B 107 v v ..". ROOF LEV~L EL - 155 -10' ~ 'RUO "".. .... u, ""'.. FOURTH L~VEL ~ EL - 140 10' fU'lrA IN" .... I ... N STAFF fiURS I fiG ? TOILET WEDS ST ATIOIl 2 U, THIRD LEVEL ~ EL = 125'-10' fl. "ItA UJ4D.~ ~... ~ AMBULANCE CARPORT ? :;!: FIRST LEYfI ~ EL = 100 -0' LOWER LpEL ~ EL - 81 -1" PARTIAL BUILDING SECTION THROUGH AMBULANCE CARPORT SHOWING MECHANICAL DUCTWORK, PIPING. AND ELECTRICAL CLEARANCES SCALE:I/a/l = 1'-0/1 HR I Prolect TlIIe Bethesda Ioteroor I a I H05P I ta I P20 COIl1>rehenslve Hecrt Center ~ 1ItIe Part I 01 Building Section through AIibu I mce Ccrport I a-....- 5hMl Ic.._..... I Skotdt -..... I Pro\ocI ~,8902 I Dale May 11. 2005 I Profoct__ --.... File Nome: 18902(1-6001. dgn eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORM 'XII. - LEGAL ITEM A.7 (~ A.7. a. Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned MeetiDl! Dates in to City Clerk's Office Meetinl! Dates in to City Clerk's Office ~) 0 April 5, 2005 March 14,2005 (Noon.) 0 June 7, 2005 May 16,2005 (Noon) - -.' 0 April 19, 2005 April 4, 2005 (Noon) 0 June 21, 2005 June 6, 2005 (Noon) .' 0 t ".~) - 0 May 3,2005 April 18, 2005 (Noon) July 5, 2005 June 20, 2005 (Noon) 0 t81 , May 17,2005 May 2,2005 (Noon) July 19,2005 July 5, 2005 (Noon) -- ,--:,-) - - _-f {" :] "'l W '.. '> 0 Administrative 0 Development Plans '~--2 0 Consent Agenda 0 New Business NATURE OF .t81 Legal - Ordinance 151 Reading AGENDA ITEM (Reso. #05-_ will be enacted at 0 Public Hearing 2nd Reading ofOrd. #05---.J 0 Bids 0 Unfinished Business 0 Announcement 0 Presentation 0 City Manager's Report RECOMMENDATION: For the City Commission to adopt Ordinance # 05-_ approving the Franchise Agreement with Adelphia Communications Corp. and approve Resolution # 05-_ to consent to assignment and change of control. ~.. (Resolution # 05-_ will be enacted at the 2nd Reading of Ordinance # 05---.J. EXPLANATION: Adelphia desires to replace and supersede the current franchise to construct, install, maintain, and operate a cable system in the city. A I3-year franchise agreement with Adelphia/Comcast would include PEG Channels & I-net services to various city locations for fiber connectivity. The agreement will provide franchise agreement governing all of franchisee's cable television system operating in the City. The agreement will leverage the digital network of Adelphia that will benefit the community, the city and Adelphia. The PEG channel will be a venue for sharing vital infonnation to our citizens such as Commission meetings, promote city sponsored events, announcements, public meetings, crime prevention tips and other government programs. In order to upgrade and acquire the required audio/video equipment needed for this broadcast; Adelphia is providing financial 'assistance to obtain video playback and recording machines, stationary and portable video equipment, cameras, lighting and microphones. The I-Net Agreement, also known as the Dedicated Capacity Agreement, will create an institutional network enabling the telecommunication services to a)]ow the City to use up to I Gig of fiber to City facilities, providing both "eice and data connections. The locations of City facilities are listed in Exhibit A-I of the franchise agreement. PROGRAM IMP ACT: o Approving Ordinance # 05-_ will approve the Franchise Agreement between the City of Boynton Beach and Adelphia Communications Corp. o Approving Resolution # 05-_ will bring together the outstanding franchise agreements under one, I3-year Adelphia franchise agreement and also transfers franchise authority from Adelphia to Comcast. Exhibit A of the franchise agreement is the Dedicated Capacity Agreement (PEG). VISCAL IMP ACT: .-\n initial access capital grant of $200,000 will be made by Adelphia/Comcast to acquire equipment and devices necessary for the operation of the PEG channel and other capital investment for the fiber network. In addition, Adelphia shall pay the city for PEG channel and other fiber network requirements, the amount of Seventy Thousand Dollars ($70,000) per year for the S:\BULLETlN\FORMS\AGENDA ITEM REQUEST FORM.DOC ( ~;(f\, \, 1..\,,.- ....r~, ';-'::, '''"..-:: eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORM duration of the 13-year franchise agreement. The $70,000 will be used to offset yearly operating expenses associated with the PEG channel and fiber networks. ALTERNATIVES: FCC regulations inhibit the city's ability to deny the transfer request Department Name 9d~~~~ ~ City Attorney / Finance / Human Resources S:\BULLEllN\FORMS\AGENDA ITEM REQUEST FORM.DOC ~,\...y ~'<.'....~....'.. .,' ((, '(, '. ~ ~ />':>0 .-'- eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORM Requested City Commission Meeting Dates Date Final Fonn Must be Turned in to City Clerk's Office Requested City Commission Meeting Dates Date Final Fonn Must be Turned in to City Clerk's Office rgj August 2, 2005 D August 16,2005 D September 6, 2005 D September 20, 2005 July 18,2005 (Noon.) D October 5, 2005 D October 18, 2005 D November 1,2005 D November 15, 2005 September 19, 2005 (Noon) August 1,2005 (Noon) October 3, 2005 (Noon) August 15,2005 (Noon) October 17,2005 (Noon); c..,_ f----.. October 31, 2005 (N06nf N --c. ---I -- ;-< September 6, 2005 (Noon) C.J NATURE OF AGENDA ITEM D Administrative D Consent Agenda D Public Hearing D Bids D Announcement D City Manager's Report D Development Plans D New Business rgj Legal - 2nd Reading D Unfinished Business D Presentation :.,:"":) '~=~ ; -,-... ~ -"J -nCD -.: ["11 ,-) "l> ,"l <-:> - RECOMMENDATION: For the City Commission to adopt Ordinance # 05-_ approving the Franchise Agreement with Adelphia Communications Corp. and approve Resolution # 05-_ to consent to assignment and change of control. (Resolution # 05-_ will be enacted at the 2nd Reading of Ordinance # 05-~. EXPLANATION: Adelphia desires to replace and supersede the current franchise to construct, install, maintain, and operate a cable system in the city. A 13-year franchise agreement with Adelphia/Comcast would include PEG Channels & I-net services to various city locations for fiber connectivity. The agreement will provide franchise agreement governing all of franchisee's cable television system operating in the City. The agreement willleverage.the digital network of Adelphia that will benefit the community, the city and Adelphia. The PEG channel will be a venue for sharing vital information to our citizens such as Commission meetings, promote city sponsored events, announcements, public meetings, crime prevention tips and other government programs. In order to upgrade and acquire the required audio/video equipment needed for this broadcast; Adelphia is providing financial assistance to obtain video playback and recording machines, stationary and portable video equipment, cameras, lighting and microphones. The I-Net Agreement, also known as the Dedicated Capacity Agreement, will create an institutional network enabling the telecommunication services to allow the City to use up to I Gig of fiber to City facilities, providing both voice and data connections. The locations of City facilities are listed in Exhibit A-I of the franchise agreement. PROGRAM IMPACT: o Approving Ordinance # 05-_ will approve the Franchise Agreement between the City of Boynton Beach and Adelphia Communications Corp. o Approving Resolution # 05-_ will bring together the outstanding franchise agreements under one, 13-year Adelphia franchise agreement and also transfers franchise authority from Adelphia to Comcast. Exhibit A of the franchise agreement is the Dedicated Capacity Agreement (PEG). FISCAL IMPACT: An initial access capital grant of$200,000 will be made by Adelphia/Comcast to acquire equipment and devices necessary for the operation of the PEG channel and other capital investment for the fiber network. In addition, Adelphia shall pay the city for PEG channel and other fiber network requirements, the amount of Seventy Thousand Dollars ($70,000) per year for the duration ofthe 13-year franchise agreement. The $70,000 will be used to offset yearly operating expenses associated with the PEG channel and fiber networks. S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC \~\ p' '.'."" 'w ,...; :> ./ eITY OF BOYNTON BEAeH AGENDA ITEM REQUEST FORM AL TERNA TIVES: FCC regulations inhibit the city's ability to deny the transfer request . Department Name Department Head's Signature City Attorney / Finance / Human Resources S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC 21 1 ORDINANCE NO. 05- 01./ A 2 3 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF 4 BOYNTON BEACH, FLORIDA; APPROVING THE FRANCHISE 5 AGREEMENT WITH ADELPHIA COMMUNICATIONS CORP. TO 6 UTILIZE THE CITY'S PUBLIC WAYS TO PROVIDE CABLE 7 SERVICE OVER THE CABLE SYSTEM; PROVIDING FOR 8 CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING 9 AN EFFECTIVE DATE. 10 11 WHEREAS, the City Commission of the City of Boynton Beach, Florida ("City 12 Commission") has determined it is in the public interest of the City of Boynton Beach 13 ("City") to approve the Cable Television Franchise Agreement with Adelphia 14 Communications Corp. 15 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF 16 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 17 Section 1. The foregoing WHEREAS clause is hereby adopted and inco!porated 18 herein as if fully set forth in this Section. 19 Section 2. The Franchise Agreement with A~elphia Communications Corp. IS 20 hereby approved, a copy of which is attached hereto as Exhibit "A" and made a part hereof. Section 3. The proper City Officials of the City of Boynton Beach are hereby 22 authorized and directed to execute said Agreement in written form and any other related 23 documents. 24 Section 4. Conflicts. That all ordinances or parts of ordinances and all 25 resolutions or parts of resolutions in conflict with this Ordinance are repealed to the extent 26 of such conflict. 1 S:\CA \Ordinances\Cable Ordinance approving the agreement.doc 1 Section 5. Severability. The provlslOns of this Ordinance are declared to be 2 severable. If any section, sentence, clause or phrase of this Ordinance shall for any reason be 3 held to be invalid or unconstitutional, such decision shall not affect the validity of the 4 remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in 5 effect, it being the legislative intent that this Ordinance shall stand notwithstanding the 6 invalidity of any part. 7 Section 6. Effective Date. This Ordinance shall be effective upon adoption on the 8 second reading. 9 FIRST READING this day of , 2005. 10 SECOND, FINAL READING AND PASSAGE this _ day of ,2005. 11 CITY OF BOYNTON BEACH, FLORIDA 12 13 14 ~ayor 15 16 17 Vice ~ayor 18 19 20 Commissioner 21 22 23 Commissioner 24 25 26 Commissioner 27 ATTEST: 28 29 30 City Clerk 31 2 S:\CA\Ordinances\Cable Ordinance approving the agreement.doc FRANCHISE AGREEMENT THIS FRANCHISE AGREEMENT ("Agreement") is made this _ day of August, 2005, by and between the CITY OF BOYNTON BEACH (the "City") and Adelphia Cable Partners, LP, Adelphia Cablevision of West Palm Beach IV, LLC, Leadership Acquisition, LP and National Cable Acquisition Associates, LP, subsidiaries of Adelphia Communications Corp. ("Adelphia" or "Franchisee"); WHEREAS, pursuant to the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. 9521 ("Communications Act"), the City may grant or renew a Franchise to construct, operate and maintain a Cable Television System; and WHEREAS, the City is authorized to regulate the construction, installation, operation and maintenance of Cable Television Systems pursuant to federal, state and local law; and WHEREAS, on June 20,2000, the Commission adopted Ordinance No. 00-31 entitled "Cable Systems and Open Video Systems" to update the terms and conditions for the operation" of Cable Systems and the application, procedures and requirements relating to the grant of Franchises for the construction, installation, operation and maintenance of Cab Ie Systems' equipment and facilities in the City's public rights-of-way (the "Ordinance"); and WHEREAS, the franchise agreements held by Adelphia Cable Partners, LP and National Cable Acquisition Associates, LP are expired, the franchise agreement held by Adelphia Cablevision of West Palm Beach IV, LLC expires on July 18, 2008, and the franchise agreement held by Leadership Acquisition, LP expires on January 2,2009 (collectively "Current Franchises"); and WHEREAS, the City and Franchisee desire to enter into a single franchise agreement governing all of Franchisee's cable television system operating in the City; and WHEREAS, Adelphia desires to replace and supersede the Current Franchises to construct, install, maintain, and operate a Cable System in the City and has applied to the City to replace such Current Franchises, so that upon its effective date this Franchise shall govern all of Franchisee's cable system operations in the City and the Current Franchises shall have no further force or effect; and WHEREAS, the construction, installation, maintenance, and operation of such a Cable System involves the use and occupation of the Streets ofthe City, over which the City exercises governmental control; and WHEREAS, the Commission has evaluated Adelphia's application in light of the requirements of federal and state law and the Ordinance; and WHEREAS, the Commission has considered all information presented to it by Adelphia, the City staff, the City's consultants, and the public; and WHEREAS, based on said information, the Commission has determined that a renewal of Adelphia's nonexclusive Franchise to construct, install, maintain and operate a Cable System in the City, subject to the terms and conditions set forth herein and in the Ordinance, is consistent with the public interest; and WHEREAS, the City and Adelphia have reached agreement on the terms and conditions of such a Franchise Agreement. NOW, THEREFORE, in consideration ofthe City's renewal of Adelphia's Franchise to own, construct, install, maintain and operate a Cable System within the City, and to use and occupy the Streets ofthe City for that purpose, and in consideration of Adelphia's promise to 2 provide Cable Service to residents of the City pursuant to the Ordinance and under the terms and conditions set forth herein, and in consideration of the promises and undertakings herein, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Franchise is hereby granted and THE SIGNA TORIES DO HEREBY AGREE AS FOLLOWS: Section 1. Definitions. {tc \12 "Section I.Definitions. }Except as otherwise provided specifically herein, the definitions in Chapter 5 of the City Code shall govern this Agreement. In addition, the following definitions shall apply: A. "Commercially Feasible" shall mean that level of technical performance, equipment, components and cable services (without reference to the content of the cable service) which has been developed and demonstrated to be generally accepted and used in the cable industry, excluding (1) "tests" involving new products offered for one year or less, or (2) products that the Franchisee can demonstrate would not provide a rate of return comparable to other markets where such products are offered. Nothing herein shan'be construed to require a Franchisee to employ any specific transmission technology or to carry any particular . . programmmg servIces. B. "Effective Date" shall mean the date upon which this Agreement commences, as provided in Section 3 hereof. C. "Franchisee" or "Adelphia" shall mean the legal entities that are signatories to this Franchise Agreement ("Adelphia"), and their lawful and permitted successors, assigns and transferees pursuant to Sections 32 and 33 ofthis Agreement and the Ordinance. 3 D. "Franchise Area" shall mean the entire territory within the corporate limits of the City and as those limits may change from time to time through annexation or contraction during the term of this Agreement. E. "Ordinance" shall mean Chapter 5 of the Code of the City of Boynton Beach, Florida, as such existed on the Effective Date of this Agreement. Section 2. Grant of Franchise. Subject to the terms of this Agreement and the Ordinance, the City hereby grants Franchisee a Franchise for the non-exclusive right and privilege to own, construct, install, maintain and operate a Cable System within the Franchise Area. Section 3. Term of Agreement. A. The Agreement shall commence upon the date that the Ordinance approving this Agreement is adopted by the City Commission (the "Effective Date"), provided that the Franchisee has provided to the City within ten (10) days of the Effective Date the written acceptance required by Section 40 herein, the proof of insurance required by Section 8 herein, and any and all payments due as of the Effective Date pursuant to this Agreement and the Ordinance. Franchisee shall provide to the City the security fund as required in Section 10 herein within fifteen (15) days following such adoption. Failure to provide the written acceptance, the proof of insurance, the security fund and the payments as required herein may result in a denial or delay ofthe grant. B. This Agreement shall be for a period ofthirteen (13) years commencing from the Effective Date and shall terminate on August 1,2013, unless otherwise sooner terminated or otherwise extended in accordance with the terms of this Agreement and the Ordinance. 4 Section 4. Non-Exclusive Franchise. {tc \12 "Section 5. Non_Exclusive License. }The Franchisee's right to use and occupy the Streets and rights-of-way shall be non-exclusive pursuant to Section 5-7 of the Ordinance. The City reserves the right to grant a similar or other use of said Streets, or any portions thereof, to any person, including the City, at any time during the term of this Agreement consistent with Florida Statute 166.046 as in effect on the date hereof Section 5. Agreement Subject to Communications Act, State Law and City Code. A. This Agreement is subject to and shall be governed by all terms, conditions and provisions of the Communications Act, any amendments thereto, and any other applicable provision of federal, state or local law of general applicability, existing or hereafter adopted. B. This Agreement is subject to and shall be governed by all terms, conditions and provisions of the Ordinance, as it existed on the Effective Date ofthis Agreement. C. Franchisee hereby accepts all terms and conditions ofthe Ordinance as they exist on the Effective Date of this Agreement. D. In the event of a conflict between this Agreement and the Ordinance, this Agreement shall control as provided herein. Section 6. Franchisee Subject to Other Laws, Police Power. A. Franchisee is subject to and agrees to comply with all generally applicable local, City, state and federal laws, ordinances, rules, regulations and orders, existing or hereafter lawfully adopted. The City and the Franchisee agree to comply with all applicable Florida Statutes. 5 B. The Franchisee shall at all times be subject to all lawful exercise of the police power ofthe City, and this Agreement is not intended to limit or expand the City's exercise of such power in any way. C. The parties expressly acknowledge that the Franchisee's obligations under this Agreement may not be unilaterally altered, whether by resolution, proclamation, or amendment of the Ordinance unless otherwise stated herein or expressly permitted by applicable federal or state law. Section 7. Reservation of Rights. A. The Franchisee is subject to and agrees to comply with all applicable federal, state and local law of general applicability subject to Section 6( c) above. B. The City reserves the right to acquire, purchase, own and/or operate a Cable System to the extent permitted by applicable state and federal law . Section 8. Insurance. A. Each Franchisee shall obtain and maintain insurance of the types and minimum amounts required in Section 5-10(2) of the Ordinance in such a manner as to comply with each and every requirement of that section, provided that on a combined basis the total insurance obligations of all Franchisees does not exceed the minimum requirements for a single Franchisee. B. The Franchisee shall provide proofto the City of compliance with this section as of the effective date of this Franchise, or as otherwise agreed to in writing by the City Manager or his designee. Should Franchisee fail to provide the City with proof of insurance as required herein, Franchisee shall be subject to fines and other enforcement remedies, including but not limited to revocation pursuant to the procedures set forth in Section 380fthis Agreement. 6 C. In the event of any request for modifications or transfers of the Franchise, Franchisee shall provide proof to the City of compliance with this Section no later than thirty days (30) after the effective date the relevant transaction is completed. Should Franchisee fail to provide the City with proof of insurance as required in this Subsection (C), Franchisee shall be subject to fines and other remedies, including a resolution denying the transaction or revoking any prior conditional approval requested by the Franchisee, pursuant to Section 5-24 of the Ordinance. D. All certificates of insurance shall be filed and maintained with the City Manager. The certificates of insurance filed pursuant to this subsection must contain a statement that the City shall receive at least thirty (30) days advance written notice of any cancellation of insurance. Section 9. Indemnification of the City. A Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the City, its officials, boards, commissions, commissioners, agents, and employees, against any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and expenses arising out of the willful or negligent acts or omissions of the Franchisee or its officers, agents, employees or contractors relating to construction, maintenance or operation of its Cable System, and the conduct of Franchisee's business in the City; provided, however, that Franchisee's obligation hereunder shall not extend to any claims caused by the willful misconduct or negligence of the City, its officials, boards, commissioners, agents or employees, or to claims arising from Franchisee's provision of Access Channels for public, educational and/or governmental use pursuant to a Franchise granted hereunder, to the extent such claims relate to programming and content on such channels, over which Franchisee has no editorial control nor exercises administrative control. 7 This provision includes, but is not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings, and claims arising out of copyright infringement or a failure by the Franchisee to secure consents from the owners, authorized distributors, or providers of programs to be delivered by the Cable System, claims arising out of Section 638 of the Communications Act, 47 US.c. 558, and claims against the Franchisee for invasion of the right of privacy, defamation of any Person, firm or corporation, or the violation or infringement of any copyright, trade mark, trade name, service mark or patent, or of any other right of any Person, firm or corporation. If any such claim arises, the Franchisee shall have the obligation and duty to defend the City and any other indemnified party hereunder; provided, however, Franchisee may not agree to any settlement of claims affecting the City without the City Attorney's approval. lfthe City Attorney finds that separate representation to fully protect the interests ofthe City is necessary, Franclrisee shall consult with the City Attorney on counsel that is acceptable to the City Attorney. IfFranclrisee is unwilling or unable to select counsel acceptable to the City Attorney, whose acceptance shall only be withheld for good cause shown, Franchisee shall pay all actual and reasonable expenses incurred by the City in defending itself with. regard to any action, suit or proceeding subject to this indemnification. The City's expenses shall include all out of pocket expenses, attorney's fees and costs of the City attorney or assistants, or any City employees, outside attorneys or other agents. Notwithstanding the foregoing, Franchisee shall not be required to indennriFy the City pursuant to this Ordinance or a Franchise Agreement for actions relating to public, government and education access programming decisions outside ofFranclrisee's control or for the City's use of the Cable System or the use of public, government and education Access Channels, facilities or funding. 8 The City agrees to notify Franchisee, in writing, within twenty (20) days of the City receiving notice of any issue that may require indemnification pursuant to this Section. To the extent this Section requires the consent ofthe City Attorney, such consent shall not be unreasonably withheld. {tc \12 "Section 11. Security Fund. } Section 10. Security Fund. A. In compliance with Section 5-10(3) and (4) of the Ordinance, each Franchisee shall provide to the City a performance bond in the an amount that totals on a combined basis for all Franchisees two hundred thousand dollars ($200,000) to ensure the faithful performance of all provisions of this Agreement, the Ordinance, and all applicable" local, state and federal law. The , bond shall be in a form and with a surety reasonably acceptable to the City's Risk Manager. B. If thirty (30) calendar days after written notice from the City Franchisee fails to pay to the City any fees or taxes due and unpaid, or any liquidated damages owed pursuant to the Ordinance, or this Agreement, damages, costs or expenses that the City has incurred by reason m any act, omission or default of Franchisee in connection with this Agreement or the Ordinance, the City may apply to the surety for withdrawal of that amount, plus interest and any costs. Upon such withdrawal or claim, the City shall notify Franchisee in writing of the amount and date of the withdrawal at least ten (1 0) busine~s days prior to a withdrawal. Any action by the City Manager or designee to draw upon the performance bond hereunder may be appealed to the City Commission for hearing and determination, subject to the terms set forth in the Ordinance. C. The rights reserved to the City under this section are in addition to all other rights ofthe City, whether reserved in this Agreement or the Ordinance or authorized by other law, and 9 no action, proceeding or exercise of a right with respect to the performance bond will affect any other right the City may have. Section 11. Construction Bond. In compliance with Section 5-10(3) of the Ordinance, prior to any significant Cable System construction, upgrade, rebuild or other significant work in the Streets of the City, Franchisee shall post a construction bond in favor of the City hereof in the amount of fifty percent (50%) of the cost of such construction or two hundred fifty thousand dollars ($250,000), whichever is less. Such bond shall be subject to the approval of the City's Risk Manager, such approval to be not unreasonably withheld. The City shall be provided with thirty (30) days prior notice of intent to cancel or not renew the bond. The bond shall be maintained until such construction is completed and activated and for a period of twelve (12) months thereafter. Franchisee shall notify the City Manager in writing when it believes the construction has been completed and the date on which it believes the bond may be eliminated pursuant to this Section 11. Unless the City reasonably determines that construction is not complete or there exists a potential claim or demand against the Bond, the City agrees to return the bond to the Franchisee or to sign such documents as are required to release the bond. Section 12. Use of Streets; Use of City Private Property. A. Franchisee agrees at all times to comply with and abide by all generally applicable and lawful provisions of the City Code, the Ordinance, this Agreement, and applicable state, local and federal law with respect to use of the Streets B. As required by the City, and upon receipt of written notice, Franchisee shall remove, relocate, replace or modify, at its own expense to the extent other Persons with facilities 10 11 Franchisee fails to install its conduit, pedestals and/or vaults, and laterals within five (5) working days ofthe date the trenches are available, as designated in the notice given by the developer or property owner, then should the trenches be closed after the five-day period, the cost of new trenching is to be borne by Franchisee. Section 13. Minimum Facilities & Services. A. As of the Effective Date hereof, the relevant Cable System will, at minimum, pass frequencies of at least 750 MHz and will be fully operational throughout the entire City. B. As of the Effective Date, the Franchisee shall provide to the City a complete set of strand System maps and such reasonable documentation as may be required by the City. C. Maintain upstream Video Channel capacity through return lines from City Hall to the Franchisee's headend and in the amount necessary to satisfY the PEG Access Channel requirements set forth in Section 16 hereof D. Franchisee's Cable System shall transmit to Subscribers any stereo signals and any other form of advanced television signals, including but not limited to high-definition television (to the extent that Franchisee has the obligation to do so pursuant to federal must-carry rules or the requisite authority pursuant to a valid retransmission consent agreement with the applicable broadcast station) received and carried by the Cable System pursuant to applicable federal law. E-. Franchise shall fully comply with all applicable laws concerning ha~dicapped or disabled persons. Section 14. Technological Improvements to System. A. State-of-the-Art. 12 1. Within thirty (30) days after the Fifth Anniversary of the effective date of this Agreement, the Franchisee shall submit a written report to the City upon their request, in a form reasonably satisfactory to the City Manager, that discusses the Cable System capacity and Cable Services offered on any ofthe most recently constructed or upgraded Cable Systems owned and operated by the Franchisee, its parent or Affiliates in Palm Beach County, Florida. The purpose of this report is to discuss the status of the Cable System in relation to State-of-the- Art. 2. During the term ofthis Franchise, Franchisee may agree to make such technically and Commercially Feasible improvements to its Cable System as may be requested by the City. If Franchisee believes that a particular improvement requested by the City is not Commercially Feasible for any reason, it will, upon written request, provide information to the City supporting its position. Ifthe City and Franchisee disagree as to the Commercial Feasibility of a particular improvement, the City may provide notice stating that it believes that such an improvement is appropriate and may consider Franchisee's response during renewal. (a) The City may, by written notice, require the Franchisee to provide the functional equivalent of such Cable System capacity or Cable Services that are not then available on the Cable System in the qty but are available within Palm Beach County. Nothing herein shall be construed to require the Franchisee to employ any specific transmission technology or to carry any particular programming service. (b) Upon receipt of such notice, the Franchisee shall implement the same or functional equivalent of such Cable System capacity or Cable Services within twelve (12) months of receipt of notice, or as otherwise agreed to by the City and the Franchisee. The 13 City agrees to provide an extension of such twelve (12) month period upon written request of the Franchisee for good cause shown, including, but not limited to Force Majeure. 3. Franchisee's failure to upgrade the Cable System pursuant to this section shall result in imposition of fines to be paid by the Franchisee to the City in the amount of not less than one thousand dollars ($1,000) per violation, per day, or part thereof that the violation continues after following the procedures set forth in Section 37 herein and shall be considered in any renewal proceedings. B. For any subsequent upgrade or rebuild of the Cable System, Franchisee shall submit to the City a schedule of its planned cable routing, work areas and pedestaVpower supply locations during the upgrade or rebuild construction process in accordance with the City's generally applicable requirements. C. During any further construction, Franchisee shall provide monthly written updates and, upon request of the City Manager or designee, meet with the City monthly, or as otherwise agreed to between the City and Franchisee, to review the progress of the construction of the Cable System and to coordinate, as may be necessary, to minimize disruption ofthe rights-of- way in the City while attempting to avoid delay in the Cable System construction schedule. D. Franchisee agrees to provide reasonable notice to all Subscribers of any Cable System upgrade or rebuild and the timing of such through the use of door hangers, direct mail, and over"the Cable System prior to the initiation of and during construction. Section 15. Institutional Network. The Franchisee shall provide Institutional Network services to the City in accordance with the terms of the Dedicated Capacity Agreement between the parties, a copy of which is 14 attached hereto as Exhibit A. The parties shall execute the Dedicated Capacity Agreement within ten (10) days of the Effective Date of this Franchise Agreement. Section 16. Access Channels and Facilities. A. Access Channel Capacity. Upon ninety (90) days written notice, Franchisee shall provide to the City at least one (1) and a maximum of two (2) activated downstream Access Channels in accordance with this section and at least one (1) return line and a maximum of two (2) return lines on the Cable System for the exclusive use of the City which the City shall use, in whole or in part, for video and audio services for non-commercial educational and/or governmental access use: 1. Upon written request of the City, Franchisee shall provide to the City one (1) full-time Access Channel ("First Access Channel") to the City within ninety (90) days of the date ofthe request. Franchisee shall deliver to the City a second channel for the City's exclusive use ("Second Access Channel") if, at any time, the First Access Channel is programmed at least. ten (10) hours per day between 8:00 a.m. to 12:00 a.m. for a period ofsix.(6) consecutive weeks with non-character generated, non-duplicative, non-commercial programming (the acknowledgement of underwriters and sponsorships shall be considered non-commercial). The Franchisee shall provide the exclusive.use of the Second Access Channel within six (6) months of receipt of a written request from the City that will include detailed documentation evidencing the fact that the usage of the First Access Channel has met the criteria set forth above. The Second Access Channel may, at the City's option, be activated from City Hall, or from such other location within the City as specified by the City. 15 2. The City may elect to carry County or other municipal or educational programming in all or in part on City Access Channels and such programming shall be included as usage under Subsection 1 above as long as such programming is not duplicative of County programming carried on an entire County Channel that is delivered to Subscribers within the City. At no time shall Franchisee be obligated to carry more than a total of two (2) Access Channels. In accordance with federal law, Franchisee will be entitled to use any PEG Access Channel capacity for the provision of other services at any time such channel capacity is not being used for PEG access purposes or is not meeting the usage requirements as provided in this Agreement. 3. Upon 90 day's prior written notice from the City, Franchisee shall cablecast live all City Commission Meetings over the Cable System. 4. The Franchisee shall not be responsible for the operation, management and administration of PEG Access, or for providing programming or technical support thereto, except as otherwise provided in this section. 5. Franchisee's Cable System shall be configured so that any programming delivered to the Cable System on any return line required hereunder may be delivered downstream on the Cable System on any of the activated downstream Access Channels to all Subscribers hereof, as determined and directed by the City from the access facilities and equipment located at City Hall, or from such other location within the City designated by the City, for a total of two return lines. 6. Franchisee shall provide all necessary headend and Cable System electronic and distribution equipment so that any programming transmitted from City Hall and 16 such other origination location designated by the City in accordance with this Agreement may be transmitted to all Subscribers on any of the Access Channels provided pursuant to this Section hereof. City Hall and the other origination location designated pursuant to Section 16( a) hereof will be linked to the headend by the most technically feasible and cost-effective means, as reasonably approved by the City. 7. Franchisee agrees that all Access Channels will be provided to Subscribers on the Cable System as a part of the lowest tier of Cable Service and that, if programming information is supplied to Franchisee by the City in writing, Franchisee will use its best efforts to publicize such programming on the Access Channels as a part of any ordinary printed program listings it creates and provides to Subscribers. 8. Franchisee agrees that any and all Access Channels provided pursuant to this Section 16 shall be provided on the same channel location to all Subscribers in the City. If Franchisee elects to change the channel location of any City Access Channel, Franchisee shall. , provide no less than ninety (90) days notice to the City and thirty (30) days notice to Subscribers prior to the change and shall advertise any such change consistent with FCC notice requirements. 9. Failure on the part ofthe Franchisee to provide the PEG channels required by Section 16(A) ofthis Agreement may result in the imposition ofliquidated damages in the amount of one thousand dollars ($1,000) per day per violation after following the procedures set forth in Section 37 hereof. B. Access Capital Grant 1. Consistent with applicable federal law, the Franchisee shall pay the City a capital grant for PEG equipment, facilities and other capital requirements in the amount of Two 17 Hundred Thousand Dollars ($200,000) within thirty (30) days of the Effective Date of this Franchise. In addition, the Franchisee shall pay the City for PEG capital and other capital requirements, the amount of Seventy Thousand Dollars ($70,000) per year during each year the franchise is in effect, payable on the first anniversary of this Franchise and each subsequent anniversary thereafter throughout the term ofthis Franchise. 2. The City acknowledges that under FCC rules, the Capital Grant may be passed through to Subscribers. Franchisee agrees that if the Capital Grant is passed through to Subscribers, such pass through shall apply to all Subscribers, including those Subscribers who receive Cable Service pursuant to bulk agreements, on an equitable basis. 3. Franchisee hereby agrees that the Capital Grant provided by Franchisee pursuant to this Section 16 constitutes capital costs which are required by the Agreement to be incurred by Franchisee for public, educational, or governmental access facilities within the meaning of Section 622(g)(2)(c) ofthe Communications Act, 47 D.S.C. ~542(g)(2)(C); Such grant shall not constitute a Franchise Fee or tax within the meaning of the Communications Act, state law, including but not limited to, the Florida Communications Services Tax, the Ordinance, or this Agreement as of the Effective Date of this Agreement. Section 17. Service to Public Buildings. A. Notwithstanding any other provision of the Ordinance, Franchisee shall provide one cable drop per location (including installation) without charge to each government building regardless of whether such facility is owned or leased in the Franchise Area that is listed in Exhibit A of this Agreement or any such building that is located within one hundred twenty-five (125) feet of Franchisee's coaxial distribution plant, whether now in existence or constructed 18 during the term of this Agreement. Such service shall, at minimum, include the basic and expanded basic tiers, or the equivalent comprising the next level of programming service above the lowest tier of Cable Service. Service extensions beyond 125 feet shall be at the City's expense based upon Franchisee's actual costs. B. Failure on the part of the Franchisee to provide the cable drop and Cable Service required by Section 17(A) of this Agreement may result in the imposition ofliquidated damages in the amount of five hundred dollars ($500) per day per violation after following the procedures set forth in Sections 37 and 38 hereof. Section 18. Service to Schools. A. Notwithstanding any other provision of the Ordinance, Franchisee shall provide, without charge, one cable drop per location (including installation) and the basic and expanded basic tiers (or such equivalent comprising the next level of programming service above the lowest tier) of Cable Service to all accredited K -12 schools within the City that are located within one hundred twenty-five (125) feet of Franchisee's coaxial distribution plant, whether now in existence or constructed during the term of this Agreement. Service extensions beyond 125 feet shall be at the respective school's expense based upon Franchisee's actual costs. B. Franchisee shall make arrangements for each school to receive school materials, to the extent available, for teachers that explain the educational applications of the Franchisee's Cable SerVices and programming offered on the Cable System. The materials will be provided to all connected schools at no cost. C. Franchisee has established a voluntary initiative to provide, upon request, cable internet service to all State accredited K -12 schools within. the City which receive Cable Service. 19 Franchisee intends to provide each of such schools with one outlet of unlimited Internet access, including the necessary cable modem. D. The costs related to this Section 18 shall not be offset against Franchise Fees or taxes or passed through to Subscribers. Section 19. Commercial Leased Access. Franchisee shall provide commercial leased Access Channels as required by applicable law. Section 20. Emergency Use of Facilities. A. Franchisee shall at minimum comply with all FCC rules on emergency use of facilities. B. Franchisee shall provide standby power generating capacity to the Cable System headend capable of providing at least two (2) hours of emergency power. Section 21. Lock-out Devices. Franchisee shall make available at reasonable charge to any residential Subscriber, upon the request of such Subscriber, a "parental guidance" or "lock-out" device which shall permit the Subscriber, at his or her option, to eliminate the audio and visual transmissions from any channel reception to the extent technically feasible. Section 22. Line Extension Policy. Upon request and payment of all applicable charges, and provided that the requesting person gives Franchisee access to his/her premises in order to furnish, maintain and continue to offer Cable Service to that person, Franchisee shall, throughout the term of this Agreement, promptly furnish, maintain, and continue to provide all Cable Services distributed over the Cable 20 System to any person at his/her place of residence at which Franchisee has the right to install equipment and located within the City where such residential location is not receiving Cable Service by any other franchised cable operator, provided that the number of actual residential dwelling units to be passed by any requested extension equals or exceeds twenty (20) homes per mile as measured from the nearest activated point on the Cable System to the furthest location to be served by the requested extension. Section 23. Cable Home Wiring Commitments. Franchisee shall comply with all FCC rules regarding cable home wiring, as amended from time to time. Section 24. Franchise Fee. A. As of the Effective Date hereof, the Florida Communications Services Tax Act preempts Section' 5-8 of the Ordinance. If, however, the Florida Communications Services Tax Law is amended or repealed so that a local franchising authority is allowed to impose and collect Franchise fees, then forty five ( 45) days after the effective date of any such statutory amendment or repeal, this section of the Agreement will become effective or at such time as stated in said amendment or repeal ofthe Florida Communications Services Tax Law. Unless otherwise provided by law, Franchisee shall coll~ct and remit Franchise fees for the entire period following the effective date of the aforementioned change in law, even if some collection and payment must be dOne in arrears to allow for changes to the billing process. The intent of this section is to ensure the City is not deprived of any Franchise fees to which it would otherwise be entitled following any change in applicable state law. 21 1. Franchisee shall pay the City a Franchise fee of five percent (5%) of Franchisee's Gross Revenues derived from the operation of the Cable System to provide Cable Services in the City. Franchise fee payments shall be paid on a quarterly basis (J anuary 1, Aprill, July 1 and October l) no later than forty-five (45) days after the end of each quarter. Each payment shall be accompanied by a detailed report to the City showing the basis ofthe computation. 2. The City shall have the option of increasing the Franchise fee to the maximum permitted by law following a public hearing where both the Franchisee and public are allowed to comment on the impact of the higher fee, and a vote by the City Commission adopting a resolution to impose the higher fee. Such change shall take effect on the next available billing cycle in which the higher charge may be placed on Subscribers' bills. 3. Upon reasonable prior written notice, during Normal Business Hours, as defined in the Ordinance, at Franchisee's principal business office in Palm Beach County, the < City shall have the right to inspect the Franchisee's financial records used to calculate the Franchisee fees; provided, however, such actual fees are subject to the applicable statute of limitations. 4. Upon completion of any such inspection by the City, the City shall provide to the Franchisee a final report setting forth the City's findings in detail, including any and all substantiating documentation. The Franchisee shall have thirty (30) days from the receipt of the report to provide the City with a written response, including any substantiating documentation. Any "Finally Settled Amount(s)" due to the City as a result of such inspection shall be paid to the City by the Franchisee within thirty (30) days from receipt of written notice of the acceptance of 22 such Finally Settled Amount from the City. For purposes ofthis section, the term "Finally Settled Amount(s)" shall mean the agreed upon underpayment, if any, to the City by the Franchisee as a result of such inspection. If the parties cannot agree on a "Finally Settled Amount", the parties shall submit the dispute to a mutually agreed upon mediator within sixty (60) days of reaching an impasse. In the event an agreement is not reached at mediation, either party may bring an action to have the disputed amount determined by a court of law. Once the parties agree upon a Finally Settled Amount and such amount is paid by the Franchisee, the City shall have no further rights to audit or challenge the payment for that period unless otherwise provided by applicable law. B. Unless otherwise mandated by applicable law, Franchisee expressly agrees that: (i) the Franchise fee payments to be made pursuant to this section shall not be deemed to be in the nature of a tax; (ii) such Franchise fee payments shall be in addition to any and all taxes of a general applicability and not applicable solely to cable television operations within the City OF other fees or charges which Franchisee shall be required to pay to the City or to any state or federal agency or authority, as required herein or by law, all of which shall be separate and distinct obligations of Franchisee; (iii) Franchisee shall not have or make any claim for any deduction or other credit of all or any part of the amount of said Franchise fee payments from or against any of said City taxes or other fees or charges of general applicability which Franchisee is required to pay to the City, except as agreed herein or required by law; (iv) Franchisee shall not apply nor seek to apply all or any part of the amount of said Franchise fee payments as a deduction or other credit from or against any of said City taxes or other fees or charges of general applicability, each of which shall be deemed to be separate and distinct obligations of Franchisee; 23 (v) Franchisee shall not apply or seek to apply all or any part of the amount of any of said taxes or other fees or charges of general applicability as a deduction or other credit from or against any of its Franchise fee obligations, each of which shall be deemed to be separate and distinct obligations of Franchisee. Section 25. Reports and Records. Upon reasonable prior written request of the City Manager or his/her designee, Franchisee shall furnish the City with all of the information as required under Section 5-26 of the Ordinance, except those reports required by Section 5-26(2)(B)(3) (unless and until the Florida Simplified Communications Tax Act is properly amended or repealed). Franchisee hereby expressly agrees to implement and maintain such practices and procedures as may be necessary to comply with said obligations. Section 26. Right to Inspect Financial Records and Facilities. A. Franchisee shall maintain a complete set of books and records, including plans" contracts, engineering, statistical, customer and service records at a location in Palm Beach County, as required by the Ordinance, and accounting and financial records if the Florida Simplified Communications Tax Act is properly repealed, unless prohibited by applicable law. B. Throughout the term ofthis Agreement, the Franchisee agrees that upon receipt of advance written notice from the City, the Franchisee shall permit any duly authorized representative ofthe City to review such ofthe Franchisee's books and records regarding the operation of the Cable System and the provision of Cable Service in the City, as are reasonably necessary to monitor Franchisee's compliance with the provisions of the Ordinance and this Agreement at the Franchisee's business office in Palm Beach County, during Normal Business 24 Hours and without unreasonably interfering with Franchisee's business operations. Such notice shall specifically reference the subsection of the Agreement that is under review so that the Franchisee may organize the necessary books and records for easy access by the City. Such books and records shall include, without limitation, any records required to be kept in a public file by the Franchisee pursuant to the rules and regulations of the FCC. The Franchisee shall not be required to maintain any books and records for Agreement compliance purposes longer than five (5) years, except for written service complaints, which shall be kept for three (3) years. C. The City shall accord all books and records that it inspects under this section the degree of confidentiality such books and records are entitled to under federal and state law. To the extent Franchisee considers any books or records that it is required to produce to be confidential or otherwise protected from public disclosure, Franchisee shall designate which documents it views as confidential and proprietary. D. Franchisee hereby agrees that the City shall have the right to inspect Franchisee's facilities and property during Franchisee's Normal Business Hours and upon reasonable notice. Section 27. Customer Service Requirements. Franchisee agrees to comply with, and to implement and maintain any practices and procedures that may be required to mo~itor compliance with each of the customer service requirements set forth in Section 5-27 of the Ordinance, and as such requirements may be lawfully amended in accordance with the terms of the Ordinance or this Agreement. Section 28. Late Fees. 25 Franchisee hereby agrees that any late charge imposed on Subscribers for unpaid bills shall not exceed Five Dollars ($5.00). Such fee may be deemed to represent Franchisee's reasonable administrative costs. Section 29. City Purchase of Cable System. The City may, upon the recommendation of the City Manager and the approval of the Commission, acquire ownership of and operate Franchisee's Cable System in accordance with the Ordinance and applicable state and federal law . Section 30. Modification of Agreement. Franchisee shall file an Application with the City for any modification of this Agreement in accordance with the federal Communications Act. Section 31. Transfer of Agreement. Franchisee shall file an Application to transfer or to change ownership or control of Franchisee or its Cable System in full compliance with Section 32 below. No Transfer shall occur without prior approval ofthe City Commission, which approval shall not be unreasonably withheld. Franchisee shall be subject to liquidated damages in the amount of one thousand five hundred dollars ($1,500) per day for failure to receive such consent of the City for a transfer or change of control; provided, however, that no such liquidated damages shall be owed if the City's denial of consent is unlawful or unreasonable. Notwithstanding the forgoing and in full compliance with Section 32 below and Section 5-29(3) ofthe Ordinance, the City approves and consents to the transaction to transfer this Franchise from the Franchisee to an affiliate of Comcast Corporation as described in Transfer Resolution attached as Exhibit B and incorporated by reference herein. Upon the request of 26 Franchisee, the City will provide an originally executed copy of the Transfer Resolution to the Franchisee. Section 32. Procedures for Requesting Approval of Transfer. In compliance with the requirements set forth in Sections 5-29(3) of the Ordinance, and subject to Section 31 above, the following procedures shall be followed by Franchisee in requesting the City's consent to a transfer, other than a pro forma transfer, of this Agreement or to transfer control of the Agreement or Franchisee. However, the requirement to obtain consent for a pro forma transfer shall not apply to transactions solely for the purpose of restructuring, recapitalization or refinancing which do not change the effective control ofthe Franchisee, as long as the Franchisee provides reasonable notice to the City of such transaction. A. At least one hundred twenty (120) calendar days prior to the contemplated effective date of a transfer, Franchisee shaH submit to the City a completed Application for approval of the transfer. Such Application shall include the following: 1. A statement ofthe reason for the contemplated transfer. 2. The name, address and telephone number of the proposed transferee. 3. A detailed statement of the corporate or other business entity organization of the proposed transferee, including but not limited to the following: (a) A detailed and complete audited financial statement of the proposed transferee for the three (3) fiscal years immediately preceding the date ofthe request for transfer approval, prepared by a certified public accountant if audited statements were made, or a letter or other acceptable evidence in writing from a duly authorized officer of the proposed transferee setting forth a clear and accurate description of the amount and sources of funding for 27 the proposal transaction and its sufficiency to provide whatever capital and operating funds shall be required by the proposed transferee to construct, install, rebuild, maintain and operate the proposed Cable System in the City. If the corporate or business entity organization of the proposed transferee has not been in existence for a full three (3) years, the proposed transferee shall submit a certified financial statement for the period of its existence. (b) A description of all previous experience of the proposed transferee in operating Cable Systems and providing Cable Services or related or similar services, including a statement identifying, by place and date, any other cable television licenses or franchises awarded to the proposed transferee, its parent, subsidiaries, or Affiliates in the State of Florida. (c) Upon written request from the City and if such pro forma financial plan has been prepared, a detailed pro forma financial plan describing for each remaining year of the Franchise, the projected number of Subscribers, rates, all revenues, operating expenses, capital expenditures, depreciation schedules, income statements, and statement of sources and, uses of funds. Where the transfer is part of a larger transaction and such information is not prepared for the single Cable System in the City, the proposed transferee may provide such information on a consolidated basis including the Cable System in the City, but shall provide information on the size of the City System, in terms of number of Subscribers, relative to the transaction, so that pro rata estimates may be made. (d) If applicable, a detailed description of the proposed plan of operation of the proposed transferee, which shall include, but not be limited to the following: 28 I. A detailed map indicating all new areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the new areas to be served. II. For informational purposes a statement or schedule setting forth all anticipated changes, if any, to the proposed classifications of Subscriber rates and charges for each of any said classifications, including installation charges, service charges, special, extraordinary, or other charges. 4. Upon request, the terms and conditions ofthe agreement between the transferor and proposed transferee relating to the operation of the Cable System in the City. 5. A statement of acceptance signed by a duly authorized officer ofthe proposed transferee, if such transferee will be the holder of the Franchise, of all of the terms and conditions of the Ordinance and this Agreement. If such transferee is not the holder of the Franchise, such transferee will sign a guarantee of compliance by the Franchisee with this Agreement. 6. A statement of acceptance of all liabilities arising under the existing Franchise whether known or unknown. 7. A plan of compliance and guarantee to cure any outstanding violations of the Ordinance and this Agreement. B.~ The names, business addresses, state of residence and country of citizenship of all general partners and/or corporate officers and directors of the proposed transferee. C. The names, business addresses, state of residence and country of citizenship of all persons and entities having, controlling, or being entitled to have or control ten percent (I 0%) or 29 more of the ownership of the proposed transferee and the respective ownership share of each such person or entity. Section 33. Dispute Resolution Procedures. .Either party may seek mediation and the party seeking mediation shall provide written notice to the other party. If both parties consent to mediation, the mediator, who shall have expertise in cable-related matters, shall be selected by agreement between the parties. 1. The mediation will be conducted as specified by the mediator and agreed upon by the parties. The parties agree to discuss their differences in good faith and to attempt, with the assistance of the mediator, to reach an amicable resolution ofthe dispute. 2. The mediation will be treated as settlement discussions and confidential. The mediator may not testify for either party in any later proceeding relating to the dispute. No recording or transcript shall be made of the mediation proceedings. 3. Each party will bear its own costs in the mediation. The fees and expenses of the mediator will be shared equally by the parties. Section 34. Renewal of Agreement. The provisions of Section 626 of the Communications Act and Section 93.23 ofthe Ordinance shall govern any and all proceedings to renew this Agreement. In the event of a conflict between the Communications Act and the Ordinance, the Communications Act shall control.:" If either Franchisee or the City decides to initiate a formal renewal process in accordance with Section 626(a)-(g) of the Communications Act, 47 U.S.c. ~ 546(a)-(g), both the Franchisee and the City must comply with each of the requirements in the Communications Act as well as the additional requirements set forth in the Ordinance. 30 Section 35. Rates. A. Nothing in the Ordinance or this Agreement shall prohibit the City from regulating rates for Cable Service, installation, disconnection, and equipment to the full extent permitted by and consistent with state and federal law. B. Pursuant to the Ordinance, Franchisee shall not unlawfully discriminate with respect to Cable Service rates that it charges throughout the City, as defined by applicable law. Section 36. Enforcement Remedies. A. In addition to any other remedies available at law or equity, except as otherwise specifically provided in the Ordinance and Section 33 of this Agreement, the City may impose fines for any violation ofthe Ordinance, or this Agreement, and/or other remedies as follows: 1. For failure to provide data, documents, reports or information as required by this Agreement in a timely manner or as requested by the City consistent with FCC rules and regulations, Franchisee shall pay fifty dollars ($50.00) per violation for each day the violation. continues. 2. Unless otherwise provided herein, for all other violations of this Agreement or the Ordinance, except those violations of the FCC customer service standards that are measured on a quarterly basis, the fines shall be one hundred dollars ($100.00) per violation for each day the violation continues for thirty (30) days. If the violation continues beyond thirty (30) days,:"a fine in the amount of two hundred dollars ($200.00) per violation per day shall be imposed. If the violation continues beyond sixty (60) days, a fine shall be imposed in the greater of the amount set forth in the Ordinance or two hundred dollars ($200.00) per violation per day. B. A violation will be deemed to have occurred when the City provides written notice to 31 Franchisee of the violation in accordance with the procedures set forth in the Ordinance and this Agreement. In addition to any other remedies available at law or equity, except as otherwise specifically provided in this Agreement, the City may impose fines for any violation of the Ordinance, or this Agreement, and/or other remedies, pursuant to Section 37 hereof. C. This Franchise is subject to revocation pursuant to Section 38 hereof for any ofthe reasons set forth therein. In the event the City exercises its right to revoke the Franchise, the procedures set forth in Section 38 shall apply. After exhaustion of all such proceedings, Franchisee shall have the right to appeal the decision of the City Commission to a court of competent jurisdiction in Palm Beach County, Florida. D. The Franchisee shall not be held in default under, or in noncompliance with the provisions of the Agreement or the Ordinance, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability ofthe Franchisee to anticipate or control. Section 37. Franchise Violations. (a) In addition to any other remedies available at law or equity, the City may apply any one or combination ofthe following remedies in the event a Franchisee violates a provision ofthe Ordinance .or this Franchise Agreement after following the procedures set forth in Subsections (d-h) below. (I) Impose liquidated damages in an amount of not less than Two Hundred Fifty Dollars ($250) per day or part thereof per individual violation. Payment of liquidated damages by the Franchisee will not relieve the Franchisee of its obligation to comply with this Agreement and the 32 requirements ofthe Ordinance, provided, however, that cure ofthe alleged violation and payment of liquidated damages pursuant to this section shall be considered full and final resolution ofthe alleged violation and may not be considered as an event of noncompliance for such period. (2) Revoke the Franchise pursuant to the procedures specified in Section 38 hereof. (3) In addition to or instead of any other remedy provided herein, the City may seek equitable relief from any court of competent jurisdiction. (b) In determining which remedy or remedies are appropriate, the City shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature ofthe remedy required in order to prevent further violations and such other matters as the City determines are appropriate to the public interest. (c) Failure of the City to enforce any requirements of this Agreement or the Ordinance shall not constitute a waiver ofthe City's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies. (d) If the City believes that Franchisee has failed to perform any obligation under the Ordinance or this Agreement Of has failed to perform in a timely manner, the City shall notify Ffanchisee in writing, stating with reas<?nable specificity the nature of the alleged default. Franchisee shall have thirty (30) days from the receipt of such notice to: (1) Respond to the City, contesting the City's assertion that a default has occurred, and requesting a meeting in accordance with Subsection (e), below; or (2) Cure the default (except Franchisee shall have ninety (90) days with respect to customer service standards measured on a quarterly basis); Of 33 (3) Notify the City that Franchisee cannot cure the default within the thirty (30) days (or ninety (90) days where applicable), because of the nature of the default. In the event the default cannot be cured within the applicable time frame, Franchisee shall promptly take all reasonable steps to cure the default and notify the City in writing and in detail as to the exact steps that will be taken and the projected completion date. In such case, the City shall set a meeting in accordance with Subsection ( e) below to determine whether additional time beyond the time specified above is indeed needed, and whether Franchisee's proposed completion schedule and steps are reasonable. ( e) If Franchisee does not cure the alleged default within the cure period stated above, or by the projected completion date under Subsection (d)(3), or denies the default and requests a meeting in accordance with (d)(I), or the City orders a meeting in accordance with Subsection (d)(3), the City shall set a meeting to investigate said issues or the existence of the alleged default. The City shall notifY Franchisee of the meeting in writing and such meeting shall take place no less than thirty (30) days after Franchisee's receipt of notice of the meeting. At the meeting, Franchisee shall be provided an opportunity to be heard and to present evidence in its defense. (f) If, after the meeting, the City determines that the Franchisee has corrected the violation or promptly commenced correction of such violation after notice thereof from the City and is diligently proceeding to fully remedy the violation, or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed. aD If, after the meeting, the City determine that a violation exists and that Franchisee has not corrected the same in a satisfactory manner or did not promptly commence and diligently process to correct the violation, the City may: (1) Impose penalties and/or liquidated damages in accordance with Subsection (a) 34 above and withdraw such amount from the security fund required in this Agreement as monetary damages; (2) Recomrfiend the revocation of this Franchise pursuant to the procedures in Section 38 below; or (3) Recommend any other legal or equitable remedy available under this Franchise or any applicable law. (h) If the City elects to assess liquidated damages in accordance with this Section, then such election shall bar the City from instituting revocation proceedings for a period of one hundred twenty (120) days. Thereafter, ifthe Franchisee remains in non-compliance with the requirements of this Ordinance or a Franchise Agreement, the City may institute revocation proceedings against the Franchisee in accordance with the provisions of Section 38 below. (1) Notwithstanding anything to the contrary, any fines/liquidated damages imposed herein shall be calculated as accruing from the date of written notice to the Franchisee ofthe violatien. (2) The determination as to whether a violation of this Franchise has occurred shall be within the discretion of the City Commission, provided that any final determination may be subject to appeal to a court of competent jurisdiction under applicable law. Section 38. Revocation. ( a) The City may revoke and rescind all rights and privileges associated with this Franchise in the follOwing circumstances, each of which represents a material breach of this Franchise: (1) If Franchisee fails to perform any material obligation under the Ordinance or this Agreement; (2) If Franchisee willfully fails for more than forty-eight (48) hours to provide 35 continuous and uninterrupted Cable Service; (3) If Franchisee practices any fraud or deceit upon the City or Subscribers; or (4) If Franchisee willfully makes a material misrepresentation of fact in the Application for or negotiation of a Franchise, a renewal or a transfer. (b) Prior to forfeiture or termination of the Franchise, the City shall give written notice by certified mail to the Franchisee of its intent to revoke the Franchise. The notice shall set forth the exact nature of the noncompliance. If within thirty (30) days following receipt of such written notice from the City to the Franchisee, the Franchisee has not cured such violation or breach, or has not entered into a written agreement with the City on a program to cure the violation, or has not demonstrated that the violation is incurable, or has filed a written response to the City demonstrating that no violation has occurred, the City may then seek a termination of the Franchise by the City Commission in accordance with this subsection. (c) Any proceeding under the subsection above shall be conducted by the City Commission and open to the public. Franchisee shall be afforded at least thirty (30) days prior written notice of such proceeding. (1) At such proceeding, Franchisee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce evidence, and to question witnesses. A complete verbatim record and transcript shall be made of such proceeding and the cost shall be shared equally between the parties. The City Commission shall hear any Persons interested in the revocation, and shall allow Franchisee an opportunity to state its position on the matter. 36 (2) Within ninety (90) days after the hearing, the City Commission shall determine whether to revoke the Franchise and declare that the Franchise is revoked and the security fund forfeited; or ifthe breach at issue is capable of being cured by Franchisee, direct Franchisee to take appropriate remedial action within the time and in the manner and on the terms and conditions that the City Commission determines are reasonable under the circumstances. If the City determines that the Franchise is to be revoked, the City shall set forth the reasons for such a decision and shall transmit a copy ofthedecision to the Franchisee. Franchisee shall be bound by the City's decision to revoke the Franchise unless it appeals the decision to a court of competent jurisdiction within one hundred twenty (120) days of the date ofthe decision. (3) Franchisee shall be entitled to such relief as the Court may deem appropriate. (4) The City Commission may at its sole discretion take any lawful action which it deems appropriate to enforce the City's rights under the Franchise in lieu of revocation of the Franchise. (d) If the City revokes a Franchise, or if, for any other reason, a Franchisee abandons the Cable System, terminates or fails to operate or maintain service to its Subscribers for a period of thirty (30) days, the following procedures and rights are effective: (1) The City may require the former Franchisee to remove its facilities and equipment at the former Franchisee's expense. If the former Franchisee fails to do so within a reasonable period of time, the City may have the removal done at the former Franchisee's and/or surety's eXpense. (2) The City, by resolution of the City Commission, may acquire ownership, or effect a transfer of the Cable System, in accordance with Section 627 of the Communications Act. 37 (3) If a Cable System is abandoned by a Franchisee, the City may sell, assign or transfer all or part of the assets of the System. (e) Where the City has issued a Franchise specifically conditioned in the Franchise Agreement upon the completion of construction, System upgrade or other specific obligation by a specified date, failure ofthe Franchisee to complete such construction or upgrade, or to comply with such other specific obligations as required may result in revocation ofthe Franchise, unless the City, at its discretion and for good cause demonstrated by the Franchisee, grants an extension of time. (f) No adverse action against a Franchisee may be taken by the City pursuant to this section except as consistent with the procedures set forth in this. section or as otherwise provided by applicable law, including a noticed public hearing at which the Franchisee is given an opportunity to participate. Section 39. Area Wide-Interconnection. A. The Cable System shall be interconnected with other contiguous area cable systems that are owned and operated by Franchisee or an Affiliate. B. Franchisee shall use its best efforts to interconnect the PEG Access Channels of the Cable System with any other contiguous cable system not owned or operated by Franchisee or an Affiliate of Franchisee upon the directive of the City. Interconnection of channels may be done by direct cable connection, microwave link, satellite or other appropriate methods. Each individual operator of such systems shall pay for its own cost of constructing and maintaining the interconnection up to the demarcation point. Such interconnection shall not increase the total number of PEG Access Channels required under Section 16 ofthis Agreement. 38 C. Subject to subsections A and B above, Franchisee shall make all reasonable efforts to cooperate with any designated access organization, interconnection corporation, regional interconnection authority or City, County, state or federal regulatory agency which may be hereafter established for the purpose of regulating, financing, or otherwise providing for the interconnection of cable systems beyond the boundaries of the Franchise Area. Section 40. Validity. A. By execution of this Agreement, the City and the Franchisee each represents and warrants to the other its respective authority and power to enter into this Agreement. The City and the Franchisee each represents, warrants and covenants to the other that the undersigned elected official (as to the City) or officer (as to the Franchisee) has been duly authorized to execute this Agreement such that this Agreement has been validly entered into by the respective party, and that this Agreement constitutes a legal, valid and binding contract enforceable against the respective party in accordance with the terms hereof B. If any part, section, subsection, or other portion of this Agreement or any application thereof to any Person or circumstance is declared void, unconditional or invalid for any reason, such part, section, subsection, or other portion, or the prescribed application thereof, shall be severable, and the remaining ~rovisions of this Agreement, and all applications thereof not having been declared void, unconstitutional or invalid, shall remain in full force and effect. Section 41. Written Notice of Acceptance. Upon adoption and as of the date of the Commission resolution approving this Agreement, Franchisee shall provide to the City written acceptance of all the terms and conditions of this Agreement. Franchisee's failure to comply in full with this section shall render 39 this Agreement null and void with no further action by the City, unless the City Manager agrees in writing or the Commission takes action to extend such period. Section 42. Notice. Any notice, request, demand, approval or consent given or required to be given under this Agreement shall be in writing and shall be deemed as having been given when mailed by United States registered or certified mail (return receipt requested), postage prepaid, to the other parties at the addresses stated below or at the last changed address given by the party to be notified as hereinafter specified: (a) If to Adelphia: Adelphia Cable Communications 1100 Northpoint Parkway, Suite 100 West Palm Beach, FL 33407 Attention: Regional Vice President, Law and Public Policy With a copy to: Adelphia Communications 5619 DTC Parkway Greenwood Village, CO 80111 Attention: Vice President, Law and Public Policy (b) If to City: City of Boynton Beach 100 E. Boynton Beach Blvd. Boynton Beach, FL 33425-0310 Attention: City Manager With a copy to: Goren, Cherof, Doody & Ezrol, P.A. 3099 East Commercial Blvd. #200 Ft. Lauderdale, FL 33308 Attention: James Cherof, Esq. 40 Section 43. Force Majeure. In the event a Franchisee's performance of or compliance with any ofthe provisions ofthe Ordinance or this Franchise Agreement is prevented by a cause or event not within the Franchisee's control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof; provided, however, that Franchisee uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes hereof, causes or events not within a Franchisee's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes, loss of utility service not as a result of any action or inaction by Franchisee and restraints imposed by order of a governmental agency or court (unless such order is procured at Franchisee's behest). Causes or events within Franchisee's control, and thus not falling within this section, shall include, without limitation, Franchisee's financial inability to perform or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of Franchisee's directors, officers, employees, contractors or agents. Section 44. Severability. If any part, section, subsection, or other portion of this Agreement is declared void, unconstitutional or invalid for any reason, such part, section, subsection, or other portion, or the prescribed application thereof, shall be severable, and the remaining provisions ofthis Agreement, and all section hereof not having been declared void, unconstitutional or invalid, shall remain in full force and effect. 41 Section 45. Entire Agreement. This Agreement and the Ordinance, to the extent set forth in this Agreement, set forth the entire agreement between the parties respecting the subject matter hereof. All agreements, covenants, representations and warranties, express and implied, oral and written, of the parties with regard to the subject matter hereof are contained herein. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any party to another with respect to the matters of this Agreement. All prior and contemporaneous conversations, negotiations, agreements, representations, performances, covenants and warranties with respect to the subject matter hereof are waived and are superseded hereby and thereby. Section 45. Execution in Counterpart. This Agreement may be executed in counterparts. IN WITNESS WHEREOF, the parties hereto have executed or caused this agreement to be duly executed as of the day and year first above written. CITY OF BOYNTON BEACH, FLORIDA By: Name: Title: Attest: -, City Clerk Date filed with City Clerk: Agreed to and accepted by Franchisees: 42 AdeJphia Cable Partners, L.P. a Florida limited partnership d/b/a Adelphia Cable Communications By: ACC Operations, Inc. a Delaware corporation Its: General Partner's Managing Member's Managing Member's General Partner By: Joe W. Bagan Its: Senior Vice President of Operations Date: National Cable Acquisition Associates, L.P., a Delaware limited partnership d/b/a Adelphia Cable Communications By: ACC Operations, Inc. a Delaware corporation Its: General Partner's General Partner By: Joe W. Bagan Its: Senior Vice President of Operations Date: AdeJphia Cablevision of West Palm Beach III, LLC, a Delaware limited liability company d/b/a Adelphia Cable Communications By: CentUry New Mexico Cable Television Corp. a Delaware corporation Its: Managing Member By: Joe W. Bagan Its: Senior Vice President of Operations Date: 43 Leadership Acquisition Limited Partnership, a Delaware limited partnership d/b/a Adelphia Cable Communications By: ACC Operations, Inc. a Delaware corporation Its: General Partner's General Partner's Sole Owner By: Joe W. Bagan Its: Senior Vice President of Operations Date: Witnesses: 44 EXHIBIT A DEDICATED CAPACITY AGREEMENT 45 DEDICATED CAPACITY AGREEMENT This Dedicated Capacity Agreement (the "Agreement") is made and entered into as of the _ day of , 2005 (the "Effective Date" which shall be on or after the date of the execution and written acceptance of the renewal of the Cable Television Franchise to Adelphia Communications Corp. or any subsidiary there00 by and between the City of Boynton Beach, Florida, a municipal corporation with its principal offices located at 100 E. Boynton Beach Blvd., Boynton Beach, FL 33425-0310 ("City") and Adelphia Cable Partners, LP, a Delaware limited partnership doing business as Adelphia Cable Communications ("Adelphia") for itself, its subsidiaries and affiliates that provide digital fiber optic telecommunications transmission capacity. Adelphia and City are the parties to this Agreement and may be referred to individually as "Party" and collectively as "Parties." A Adelphia desires to provide, and City desires to obtain and use, a specific amount of unlit digital fiber optic telecommunications transmission capacity (the "Adelphia Service") between the locations (the "Locations") more particularly described on the Service Description included in Exhibit A, which is attached and incorporated in this Agreement by this reference. B. City acknowledges that it will be responsible for providing all electronics, equipment and services required on its side of the demarcation points at the Locations in order for it to "light" the Adelphia facilities; the Adelphia Service is not "lit" and Adelphia makes no undertaking under this Agreement to do so as part of the Adelphia Service. C. The Parties acknowledge that this Dedicated Capacity Agreement is not an Indefeasible Right of Use ("IRU") Agreement, but is intended to provide City only with access to the Adelphia Service for a limited time under the terms and conditions set forth below. IN CONSIDERATION OF THE FOREGOING RECITALS AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE PARTIES TO THIS AGREEMENT AGREE AS FOLLOWS: 1. The Adelphia Service, Facilities and Access. (a) Service and Facilities. Subject to and in accordance with the terms and conditions of this Agreement, Adelphia will provide the facilities necessary to provide City with the Adelphia Service (the "Facilities"). Provision and use of, the Adelphia Service in the amounts and at the Locations shall be in accordance with the terms and conditions set forth in this Agreement. City shall have the right to use capacity on the Facilities only up to the amounts specified in Exhibit A; the Adelphia Service provided under this Agreement is not "burstable." If any time City wishes to use capacity at any Location in excess of the amounts specified in Exhibit A, it must place an order with Adelphia for additional capacity, which must be accepted by Adelphia before any such usage occurs. Adelphia agrees to respond to any request to increase capacity within sixty (60) days of such request. Should Adelphia determine, through use of Audit Equipment (as defined below) or otherwise, that City has exceeded the capacity specified in Exhibit A, Adelphia may, at its sole discretion, invoke any of the terms under this Agreement. (b) City Use of Adelphia Service. City may connect its network or facilities with the Facilities at City' sole cost, at the connecting points designated in Exhibit A. Adelphia shall provide a fiber connection to an Adelphia owned and installed patch panel in the computer/telecommunications room, designated by the City in each location listed on Exhibit A. City shall then be responsible for providing all electronics and required equipment and services on its side of the demarcation identified at the locations to "light" the Facilities and utilize the Adelphia Service for City's intended purposes. City shall be responsible for all costs to connect its network or facilities with the Facilities and to "lighF or otherwise utilize the Adelphia Service. City may use the Adelphia Service for City's business, including, but not limited to, the transport of City content, municipal wireless applications, and for any lawful purpose provided however, that the City shall not resell any portion of the capacity of the Facilities provided under this Agreement nor shall the City permit non-govemmental use or provide any services that directly compete with services provided by Adelphia. To the extent that the City installs antennae or other equipment to enable the provision of wireless service, such additional antennae or equipment shall not be construed as "additional sites" pursuant to Exhibit A Section 6. City shall take all reasonable precautions against, and shall assume liability, subject to the terms of this Agreement, for any damage caused by the negligence of City to the Facilities or other fibers or portions of the facilities or equipment used or owned by Adelphia. City shall at all times comply with all applicable laws and regulations. Adelphia reserves the right to terminate the Adelphia Service and/or suspend affected Adelphia Service, if Adelphia determines that City use does not conform with the requirements set forth in this Agreement or the City causes technical interference that impedes Adelphia's ability to provide Adelphia Service to City or others or receives notice from anyone that such use may violate applicable laws. Adelphia's actions or inaction under this Section shall not constitute review or approval of City's use. Adelphia will provide notice to City before taking action under this Section. (c) Adelphia Inspection and Audit Rights; Use of Monitoring and Bandwidth Governors. (i) City acknowledges that Adelphia may audit City's use of the Facilities, as further provided in this Section. During the term of this Agreement and for a period of three (3) years thereafter, City shall allow Adelphia or its professional advisors access to and the right to examine, audit, inspect and copy its records and any documents and other items related to the Adelphia Service. City shall provide assistance to interpret such data if requested by Adelphia. Such examination shall provide Adelphia with complete information regarding City's use of the Adelphia Service. City sites shall be available for inspection and review at any reasonable time by representatives of Adelphia. Upon prior written 2 notice and accompanied by City employees, Adelphia or its designee may enter the Locations to perform physical audits of City usage of the Adelphia Service and Facilities. Notwithstanding anything to the contrary, any and all auditing and monitoring of the system by Adelphia shall be limited to the auditing and monitoring solely of the City's use of transmission capacity and shall not include any auditing, monitoring or access by any other means of the content of any transmissions. (ii) In addition, no more than four (4) times each year during the Term of this Agreement, Adelphia may request that an officer of City certify that City's usage of the Facilities and Adelphia Service comply with the terms and conditions outlined in this Agreement, including the capacity restrictions set out in Exhibit A . (iii) City shall prepare, maintain and preserve all records compiled by City in connection with City's use of the Adelphia Service. The records shall be retained for a minimum of one (1) year from the termination or completion of this Agreement. (iv). City further acknowledges that at any time during this Agreement, without notice to City, Adelphia has the right, but not the obligation, to install and maintain monitoring and usage governing equipment (the "Audit Equipment") on the Facilities used to provide the Adelphia Service provided that such equipment monitors only usage of capacity and does not monitor or record the content of any transmissions. In addition, if required by Adelphia, such Audit Equipment may be placed on site(s) of City at the Locations and City grants Adelphia a license to install and operate such Audit Equipment on the Locations. Any such installation of Audit Equipment on a City sites at a Location shall be undertaken only after prior reasonable written notice to City and approval of the location by the City, which shall not be unreasonably withheld. A City representative shall be present while the installation is taking place. (d) Public Rights of Way; Access to City Property. Adelphia owns and operates the Facilities. Adelphia acknowledges that City has no obligation to assure or guarantee Adelphia the necessary connections to public streets, utilities or adjacent buildings that may be necessary for the provision of Adelphia Service to the Locations. Notwithstanding the foregoing, (i) in areas owned or controlled by City, City shall provide Adelphia access necessary for the operation of Facilities and (ii) City shall cooperate with Adelphia, at Adelphia's expense, in obtaining any third party permits, easements or agreements necessary for Adelphia to provide Adelphia Service to City under this Agreement. 2. Payment and Revenue. (a) Charges for Adelphia Service. In exchange for the provision of the Adelphia Service, City shall pay the amounts listed on Exhibit A (the "Service Charges"). Except as otherwise agreed to on Exhibit A, Adelphia shall bill in advance the Service Charges for all Adelphia Service to be provided during the ensuing calendar month. All bills for Adelphia Service provided to City by Adelphia are due 3 within thirty (30) days of receipt. If any portion of the undisputed amounts of the payment has not been received by Adelphia forty five (45) days after the bill date, or if any portion of the payment is received by Adelphia in funds which are not immediately available to Adelphia, then a late payment penalty shall be due Adelphia. The late factor shall be the maximum amount allowable by law, but not more than 1.5 % per month or 18% annually. (b) Taxes; Costs. All payments provided in this Agreement are exclusive of any sales, use, gross receipts, excise, import or export value added or similar taxes or duties (the "Taxes"). As of the Effective Date of this Agreement, the City is tax exempt. If during the Term of this Agreement, the City's tax exempt status changes, the parties shall negotiate in good faith an increase in the payments made to Adelphia to account for Taxes. 3. Facilities Ownership. The Facilities shall be and remain the property of Adelphia during the Term. City shall use reasonable care to avoid damaging the Facilities during the Term and agrees not to alter, modify, sell, license, lease, assign, encumber, relocate, move or tamper with the Facilities except in the case of an emergency whereupon the City may take any actions permitted pursuant to its police powers and the authority granted by the laws of the state of Florida. City shall not use the Adelphia Service or any Facilities in a way that violates Adelphia's interests in its trademarks, trade names, copyrights, or other proprietary rights. 4. Confidentiality. Each Party acknowledges that Confidential Information may be disclosed to the other Party during the course of this Agreement. Each Party agrees that it will take reasonable steps during the Term and for a period of one year following expiration or termination of this Agreement, to prevent the duplication or disclosure of Confidential Information of the other Party, other than by or to its employees, agents or affiliates with a specific "need to know" such Confidential Information. "C9nfidentiallnformation" means all business or technical information of the disclosing Party that is not generally known to the public and that derives value from not being generally known, whether such information is disclosed orally or in writing. Confidential Information may include any software, content, documentation, flow-chart, logic diagram, design proposal, screen shot, screen shot concept, algorithm, device, compilation of information, method, technique, or process. Notwithstanding the foregoing, either Party may disclose Confidential Information without the consent of the other Party, t~the extent such disclosure is required by law, including Florida Statutes Ch. 119, rule, regulation or govemment or court order. 5. Compliance with laws and Regulations. Adelphia agrees to comply with all applicable laws, ordinances, rules and regulations of any governmental entity or agency having jurisdiction with respect to the Facilities or the provision of the Adelphia Service. City agrees to comply with all applicable laws, ordinances, rules and regulations of any govemmental entity or agency having jurisdiction 4 with respect to the Locations. City represents and warrants that its use of the Adelphia Service and the Facilities shall comply in all material respects with applicable government codes, ordinances, laws, rules, regulations and restrictions. 6. Representations, Warranties and Indemnification. (a) Adelphia Warranties. Adelphia warrants that (i) it possesses all authorizations, approvals, consents, licenses, permits, certificates and other rights and permissions necessary to permit Adelphia to install, operate, and offer the Adelphia Service at the Locations, and (ii) it currently has and will maintain property insurance and commercial general liability insurance in amounts specified in the City's generally applicable cable television ordinance. (b) City Warranties. City warrants that it is an incorporated municipality under the laws of the state of Florida and as such, has the authority to enter into this agreement. (c) General Warranties. Each Party represents and warrants to the other Party that: (i) such Party has the full right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement. (d) No Additional Warranties. NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ADELPHIA SERVICE OR THE FACILITIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. (e) Lirftitation on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE USE OR INABILITY TO USE THE ADELPHIA SERVICE, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO THIS SECTION. EXCEPT AS PROVIDED IN THIS 5 SECTION, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID UNDER THE AGREEMENT. (f) Indemnity. Adelphia shall defend, indemnify, save and hold harmless the City and its officers and employees from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees ("Liabilities"), resulting from Adelphia's material breach or alleged material breach of any duty, representation, or warranty of this Agreement. The foregoing obligation shall not apply to any such claim to the extent that it is based on or arises out of (a) any other technology, software or materials provided by, incorporated or distributed by City hereunder, in which case City shall indemnify Adelphia hereunder; (b) the combination, operation or use of the Facilities with hardware, data, content or software not supplied by Adelphia; or (c) modifications to the Facilities if the modifications were not made by Adelphia; (d) use of the Facilities in a manner not contemplated by the documentation. City shall defend, indemnify, save and hold harmless Adelphia from any and all Liabilities resulting from City's willful, gross, negligent, or criminal acts related to a material breach of this Agreement to the extent permitted by law. (9) Claims. If a Party entitled to indemnification hereunder (the "Indemnified Party") becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an "Action"), the Indemnified Party will give the other Party (the "Indemnifying Party") prompt written notice of such Action. < Such notice will (i) provide the basis on which indemnification is being asserted and (ii) be accompanied by copies of all relevant pleadings, demands, and other papers related to the Action and in the possession of the Indemnified Party. The Indemnifying Party will have a period of thirty (30) days after delivery of such notice to respond. Notwithstanding the foregoing, the Indemnifying Party shall respond to such notice promptly enough to provide the Indemnified Party a reasonable time to respond to any legal process or to comply with applicable law or the rules of a legal proceeding in the event that the Indemnifying Party elects not to defend such Action. If the Indemnifying Party elects to defend the Action or does not respond within the requisite period, the Indemnifying Party will be obligated to defend the Action, at its own expense, and by counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party will cooperate, at the expense of the Indemnifying~Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action. If the Indemnifying Party responds within the required period and elects not to defend such Action, the Indemnified Party will be free, without prejudice to any of the Indemnified Party's rights hereunder, to compromise or defend (and control the defense of) such Action. In such case, the Indemnifying Party will cooperate, at its own expense, with the Indemnified Party and its counsel in the defense against such Action and the Indemnifying Party will have the right to participate fully, at its own expense, in the defense of such Action. Any compromise or settlement of an Action will require the prior consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed. 6 7. Compliance with Usage Restrictions; Liquidated Damages. Excess Usage - Adelphia Remedies. Should Adelphia determine that City has used capacity on the Facilities in excess of the amounts specified for use by City in Exhibit A ("Excess Usage"), Adelphia shall provide notice to City requiring that such Excess Usage cease immediately. Upon receipt of such notice, City shall immediately cease use of such Excess Usage. After the City's receipt of such notice, Adelphia may take the following action: (a) Not less than thirty (30) days following the notice in (i) above, and if the City has not ceased the Excess Usage, Adelphia may invoice City for liquidated damages for the Excess Usage. The Parties agree that any Excess Usage by City may cause loss and damage to Adelphia, the amounts of which will be extremely difficult or impossible to measure. Therefore, the Parties agree that if such excess usage is not the subject of a dispute and the rate for such actual Excess Usage shall be no more than two (2) times the rate that Adelphia charges to the City under the terms of this Agreement. The Parties understand and agree that the terms of this Section 7(a)(ii) describe liquidated damages that City shall pay to Adelphia as a result of the Excess Usage by City and do not constitute a penalty. (b) In the altemative, Adelphia may terminate the Agreement for material breach. 8. Term and Termination. (a) Term. The term of this Agreement shall be as set forth in Exhibit A - (b) Termination for Breach. This Agreement may be terminated by either Party prior to its expiration if any of the following events of default occurs: (i) the other Party materially fails to perform or comply with this Agreement or any provision hereof; (ii) the other Party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or (iii) a petition under any bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by the other Party; or if such a petition is filed by any third party, or an application for a receiver of the other Party is made by anyone and such petition or application is not resolved favorablt to such Party within sixty (60) days. A non-defaulting Party may terminate the Agreement under (i) above thirty (30) days after written notice of termination clearly titled "Notice of Default" and referencing this contract is given by the non~defaulting Party to the defaulting Party and the defaulting Party's defaults have not been cured within such thirty (30) day period. Termination under (ii) and (iii) above shall be effective upon notice. The rights and remedies provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law or this Agreement. In the event a non-defaulting Party in its discretion elects not to terminate this Agreement, such election shall not be a waiver of any and all claims of that Party for such default(s). Further, the non-defaulting Party may elect to leave this Agreement in full force and effect and to institute legal action against the defaulting Party for specific performance and/or damages suffered by such Party as a result of the default(s). c) Early Termination Liability. In the event this Agreement is terminated due to breach of this Agreement by City, City shall be 7 obligated to pay, in addition to any already accrued liabilities under this Agreement, an early termination fee as set forth below. Termination during the first three (3) years - 100% of monthly recurring charge for balance of term Termination during year 4 - 70% of monthly recurring charge for balance of term Termination during year 5 - 60% of monthly recurring charge for balance of term Termination during year 6 - 50% of monthly recurring charge for balance of term Termination during year 7 - 40% of monthly recurring charge for balance of term Termination during year 8 - 30% of monthly recurring charge for balance of term Termination during year 9 - 20% of monthly recurring charge for balance of term Termination during year 10 -10% of monthly recurring charge for balance of term City shall pay any Early Termination Liability, to be paid monthly as if contract was still in effect. Notwithstanding the above, in the event Adelphia's Cable Franchise with the City is terminated by Adelphia during the term of this Agreement, the City shall have the right to terminate this Agreement upon thirty (30) days notice to Adelphia with no liability. (d) Return of Information. Upon the expiration or termination of this Agreement, each Party will, upon the written request of the other Party, return or destroy (at the option of the Party receiving the request) all Confidential Information, documents, manuals and other materials specified by the other Party unless retention of such materials is required by applicable federal, state or local law or regulation. 9. Notices. Any notice, approval, request, consent, authorization, direction or other communication under this Agreement (except routine operational communications or where otherwise specified) will be given in writing and will be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered by confirmed facsimile; (ii) on the delivery date if delivered personally to the Party to whom the same is directed; (iii) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (iv) five business days after the mailing date, if sent by U.S. mail, retum receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. In the case of notice to Adelphia, such notice shall be provided to: Legal Department Adelphia Cable Communications 5619 DTC Parkway Greenwood Village, CO 80111 Forward Copies to: SVP of Operations Adelphia Cable Communications 1100 Northpoint Parkway, Suite 100 West Palm Beach, FL 33407 And Copies to: Director of Commercial Data Adelphia Communications 1 North Main Street 8 Coudersport, PA 16915 In the case of City, such notice shall be provided to: City Manager City of Boynton Beach 100 E. Boynton Beach Blvd. Boynton Beach, FL 33425-0310 Forward Copies to: James Cherof City Attorney Goren, Cherof, Doody & Ezrol, PA 3099 E. Commercial Blvd., #200 Ft. Lauderdale, FL 33308 10. Intellectual Property. Each Party retains all Intellectual Property Rights in all of its property, including, but not limited to trade names, trademarks, service marks, symbols, identifiers, formats, designs, devices, identifiers, or proprietary products, services and information owned by each Party. 11. Miscellaneous. (a) Governing Law. This Agreement shall be governed by the laws of the United States of America and the State of Florida without regard to Florida's conflict of laws principles and each Party to this Agreement submits to the exclusive jurisdiction of, the state and federal courts sitting in Palm Beach County, FL and each Party waives any jurisdictional, venue, or inconvenient forum objections to such courts (b) Entire Agreement. This Agreement is the entire agreement between the Parties and is not intended to confer and does not confer any rights or remedies upon any person or entity other than the Parties to this Agreement. This Agreement sets forth the entire understanding and agreement of the Parties concerning the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements related thereto. (c) Assignment. Adelphia may assign this Agreement to any successor in interest to Adelphia's cable television franchise agreement with the City as approved by the City, in whole, upon written notice to City. Adelphia may assign this Agreement to an unaffiliated party that is not a successor in interest to the cable television franchise agreement only with the prior written consent of the City, which shall not be unreasonably withheld. City may assign this Agreement only with the prior written approval of Adelphia, which shall not be unreasonably withheld. (d) Transfer of Adelphia Service. The Adelphia Service is solely provided for use by City. City may not transfer the Adelphia Service to another person or location without Adelphia's prior written consent. (e) Remedies. Except where otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the Party may possess at law or in equity. 9 (f) No Implied Waiver. The failure of a Party to insist at any time upon the strict performance of any covenant or agreement herein or to exercise any option, right, power of remedy contained in this Agreement shall not be construed as a waiver or a relinquishment thereof for the future. Any waiver must be in writing and signed by the Parties. (9) Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, (i) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect. (h) No Offer. This Agreement does not constitute an offer by Adelphia and it shall not be effective until signed by both Parties. (i) Relationship of Parties. The Parties to this Agreement are independent of each other. Neither Party is an agent, representative or employee of the other Party. Neither Party will have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party. (j) Excuse. Neither Party will be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such Party's reasonable control and which such Party is unable to overcome by the exercise of reasonable diligence. (k) Survival. Any payment obligations accrued prior to termination or expiration, and any other provision which, by its nature or express terms should survive, will survive the completion, expiration, termination or cancellation -of this Agreement. (I) Amendment. No change, amendment or modification of any provision of this Agreement will be valid unless set forth in a written instrument signed by the Party subject to enforcement of such amendment, by a duly authorized officer or employee. (m) Further Assurances. Each Party will take such action (including, but not limited to, the execution, acknowledgment and delivery of documents) as may reasonably be requested by any other Party for the implementation or continuing performance of this Agreement. (n) Counterparts; Facsimile. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. This Agreement, and written amendments hereto, may be executed by facsimile. 10 (0) Consents; Approvals. Where an activity under this Agreement shall be subject to one Party's prior consent or approval, any and all such approvals, consents shall not be unreasonably withheld or delayed. (p) Injunctive Relief. The Parties acknowledge and agree that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by a Party shall cause the other Party irreparable damage for which recovery of money damages would be inadequate and that the non-breaching Party may therefore seek timely injunctive relief to protect its rights under this Agreement in addition to any and all remedies at law. (q) Condemnation. If the whole or substantially the whole of the Facilities should be taken for any public or quasi-public use, by right of eminent domain or otherwise or should be sold in lieu of condemnation, then this Agreement shall terminate as of the date when physical possession of the Facilities are taken by the condemning authority. If less than the whole of the Facilities used to provide the Adelphia Service is taken, and in Adelphia's reasonable judgment, it can no longer provide the Adelphia Service as a result of such condemnation, Adelphia may elect to terminate this Agreement and all of its obligations not yet accrued upon thirty (30) days written notice to City. (r) Force Majeure. Neither Party shall be liable to the other for any loss or damage to any property or person occasioned by act of God, public enemy, injunction, riot, strike, insurrection, war, court order, requisition, or order of governmental body or authority or by any other cause beyond the reasonable control of either Party, except as otherwise specifically provided in this Agreement. WHEREBY, the Parties execute this Agreement as of the Effective Date. ADELPHIA CABLE PARTNERS, LP "ADELPHIA" CITY OF BOYNTON BEACH, FLORIDA By By Name (Print) Name (Print) Title Title Date Date 11 EXHIBIT A - , 1. NAME AND ADDRESS OF SPECIFIED LOCATIONS City Hall 100 E. Boynton Beach Blvd., Boynton Beach, FL 33425 Fire Station #2 2615 W. Woolbright Road, Boynton Beach, FL 33425 Fire Station #3 3501 N. Congress Ave., Boynton Beach, FL 33425 Fire Station #5 Senior Center City Hall at the Mall Hester Center Wilson Center Tennis Center Police Crime Prevention Utilities Admin. Bldg. Water Treatment Plant East of High Ridge Road & south of Gateway 1021 S. Federal Hwy., Boynton Beach, FL 33425 801 N. Congress Ave., Boynton Beach, FL 33425 1901 N. Seacrest Blvd., Boynton Beach, FL 33425 211 NW 13th Ave., Boynton Beach, FL 33425 3111 S. Congress Ave., Boynton Beach, FL 33425 111 % N. Congress Ave. Boynton Beach, FL 33425 124 E. Woolbright Road, Boynton Beach, FL 33425 5469 W. Boynton Beach Blvd., Boynton Beach, FL 33425 2. SERVICE DESCRIPTION Adelphia will provide 1 Gbps of unlit digital fiber optic telecommunications transmission capacity between the following locations in a point-to-point configuration: A Location Z Location Capacity City Hall 100 E. Boynton Beach Blvd. I Gbps Fire Station #2 2615 W. Woolbright Road 1 Gbps Fire Station #3 3501 N. Congress Ave. I Gbps Fire Station #5~ East of High Ridge Road & south of Gateway I Gbps Senior Center 1021 S. Federal Hwy. 1 Gbps City Hall at the Mall 801 N. Congress Ave. I Gbps Hester Center 1901 N. Seacrest Blvd. 1 Gbps Wilson Center 211 NW 13th Ave. 1 Gbps 12 Tennis Center 3111 S. Congress Ave. I Gbps Police Crime Prevention IllY, N. Congress Ave. I Gbps Utilities Admin. Bldg. 124 E. Woolbright Road I Gbps Water Treatment Plant 5469 W. Bovnton Beach Blvd. I Gbps 3. PRICE SCHEDULE For the unlit digital fiber optic telecommunications capacity connection(s), described above, the NRC amount of eighty-three thousand, nine hundred forty dollars ($83,940.00) is payable upon contract execution. The MRC amount shown below is payable every month beginning on the date that the City accepts the Acceptance form (Exhibit B) for such location(s), for a total of $5,460.00, per month for I Gbps. The City may elect, on thirty (30) days prior written notice to Adelphia. to increase the capacity to 2 Gbps at any or all of the sites listed below for a MRC of $671.00 per site, or increase to 3 Gbps for a MRC of $864.00 per site. 13 Year Term A Location Z Location Capacity MRC I NRC City Hall 100 E. Boynton Beach Blvd. I Gbps $455.00 $ 5,995.00 Fire Station #2 2615 W. Woolbright Road I Gbps $455.00 $ 5,995.00 Fire Station #3 3501 N. Congress Ave. I Gbps $455.00 $ 5,995.00 Fire Station #5 East of High Ridge Road & south of Gateway I Gbps $455.00 $17,995.00 Senior Center 1021 S. Federal Hwy. I Gbps $455.00 $ 5,995.00 City Hall at the Mall 801 N. Congress Ave. I Gbps $455.00 $ 5,995.00 Hester Center 1901 N. Seacrest Blvd. I Gbps $455.00 $ 5,995.00 Wilson Center 211 NW 13th Ave. I Gbps $455.00 $ 5,995.00 Tellllis Center 3111 S. Congress Ave. I Gbps $455.00 $ 5,995.00 Police Crime Prevention III 'h N. Congress Ave. 1 Gbps $455.00 $ 5,995.00 Utilities Admin. Bldg. 124 E. Woolbright Road I Gbps $455.00 $ 5,995.00 Water Treatment Plant 5469 W. Bovnton Beach Blvd. I Gbps $455.00 $ 5,995.00 TOTAL $5,460.00 $83,940.00 13 4. TERM. The term of the Agreement (the "Initial Term") shall be thirteen (13) years from the Effective Date. After the Initial Term, the Agreement may be renewed for additional periods upon mutual agreement (each period a "Renewal Term"), unless terminated by either Party pursuant to this Section. At the end of the Initial Term or any subsequent Renewal Term, the Agreement shall be automatically renewed for successive one-month periods unless either Party gives the other ninety (90) days prior written notice of its intent to terminate the Agreement. Such monthly renewal periods shall be upon the same terms and conditions as those contained herein,. The Initial Term, any Renewal Terms and any extension periods are referred to collectively at times in this Agreement as the "Term." 5. INSTALLATION TIMELlNE. Adelphia will provide a project timeline at the beginning of the project giving timelines for construction and installation of the service. Adelphia will make all best and reasonable efforts to complete project installation within ninety (90) business days of contract execution and in no event longer than one hundred eighty (180) days after the Effective Date, unless such delay is due to causes beyond the control of Adelphia. If construction is not completed within the required timeframe, the City may assess Adelphia liquidated damages in the amount of $1 00 per day until construction is completed. 6. FUTURE SITES. Future sites may be added to this dedicated capacity network for a monthly recurring charge of four hundred and fifty-five dollars ($455.00) per month beginning on the date that the City accepts the Acceptance form, plus any construction costs associated with building and terminating fiber into the new location. Upon request for service, Adelphia will conduct a physical site'survey and determine the cost of the project. Those costs will be given to City. If agreed upon, City will pay non-recurring charges before construction begins. 7. Outage Credits. Adelphia shall correct all service interruptions within forty eight (48) hours after notice from the City. Unless excused due to causes beyond the control of Adelphia, the City shall receive a credit equal to 1/30lh of the monthly recurring charge ("MRC") for all affected sites for each hour that service remains interrupted after the 48 hour cure period up to 1 00% of the MRC. 14 EXHIBIT B CERTIFICATE OF FINAL ACCEPTANCE In accordance with the terms and conditions of the- Adelphia Commercial Service Agreement, dated ,2005, between ("Company") and ("Adelphia"), the undersigned Company's Representative hereby certifies: The Adelphia Service as furnished, delivered, and installed at the Specified Location(s) described below appears to conform to the specifications and other requirements set forth for the Adelphia Service in the Agreement, as of the date this form is signed below. Therefore, the Certificate of Final Acceptance is granted by the Company for the Specified Location(s) described below under the terms and conditions of the Agreement. This Certificate is being issued for the following Specified Location(s): A LOCATION Z LOCATION By Name (Print) Title Date 15 EXHIBIT B TRANSFER RESOLUTION 46 1 RESOLUTION NO. R05 - 2 3 A RESOLUTION OF THE CITY COMMISSION OF THE 4 CITY OF BOYNTON BEACH, FLORIDA, TO CONSENT 5 TO ASSIGNMENT AND CHANGE OF CONTROL AND 6 CONSENT TO ASSIGNMENT OF CABLE SYSTEM AND 7 FRANCHISE; AND PROVIDING AN EFFECTIVE DATE 8 9 10 WHEREAS, cable television franchises have been granted by the City of Boynton II Beach, FL ("Franchise Authority") to Adelphia Cable Partners, L.P., National Cable 12 Acquisition Associates, L.P. and Leadership Acquisition, L.P. ("Franchisee-I") and to 13 Adelphia Cablevision of West Palm Beach, LLC ("Franchisee-2"). Franchisee-l are entities 14 that are indirect subsidiaries of Adelphia Communications Corporation ("Adelphia"), and the 15 Rigas Family had an ownership interest in Franchisee-2; and 16 WHEREAS, Adelphia is currently in Chapter 11 bankruptcy proceedings; and 17 WHEREAS, pursuant to an April 25, 2005 U.S. Government forfeiture agreement 18 with the Rigas family and an April 25, 2005 settlement agreement with Adelphia, any 19 remaining Rigas family ownership interest in Franchisee-2 will be terminated and transferred 20 by the U.S. Government to Adelphia (described as the "Government Settlements"); and 21 WHEREAS, on May 20, 2005 the United States Bankruptcy Court for the Southern 22 District of New York issued-a written decision approving the Government Settlements; and 23 WHEREAS, pursuant to an Asset Purchase Agreement dated April 20, 2005 between 24 Adelphia and Time Warner NY Cable LLC ("TWNY"), the right to purchase the Franchisee- 25 l's cable system will be assigned by TWNY to a wholly owned subsidiary ofTWNY, Cable 26 Holdco Exchange II LLC which will purchase the cable system and franchises (the "Adelphia 27 Transaction"); and 28 WHEREAS, pursuant to an Exchange Agreement dated April 20, 2005 between Time 29 Warner Cable Inc. and Comcast Corporation ("Comcast"), 1 00% of the equity securities in the Comcast subsidiary CAP Exchange I, LLC will be exchanged for 100 percent of the 2 equity securities of Cable Holdco Exchange II LLC whereby that entity will become a 100 3 percent indirect subsidiary of Comcast (the "Exchange Transaction"); and 4 WHEREAS, pursuant to another Asset Purchase Agreement dated April 20, 2005 5 between Adelphia and Comcast, the assets of Franchisee-2 will be acquired by Pamassos, 6 L.P., a wholly-owned subsidiary of Com cast (described as the "Transaction"); and 7 WHEREAS, Franchise Authority has concluded its approval is necessary for the 8 above described Adelphia Transaction, the Exchange Transaction, and the Transaction and 9 has been provided FCC Form 394's and related information for such transactions; and 10 WHEREAS, the Franchise Authority is willing to consent to the Adelphia 11 Transaction, the Exchange Transaction, and the Transaction described above; and 12 WHEREAS, the Dedicated Capacity Agreement executed on _, 2005, by and 13 between the Franchise Authority and Adelphia Cable Partnership, L.P., a Delaware Limited 14 Partnership doing business as Adelphia Communications Corporation (the "Dedicated 15 Capacity Agreement") is a contract entered into in connection with the franchise agreements 16 being transferred. 17 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF 18 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 19 SECTION 1. The foregoing recitals are approved and incorporated herein by 20 reference. 21 SECTION 2. The Franchise AuthOlity consents to the Adelphia Transaction 22 described herein. 23 SECTION 3. The Franchise Authority consents to the Exchange Transaction 24 described herein. 1 SECTION 4. The Franchise Authority consents to the Transaction described herein. 2 SECTION 5. This Resolution shall be deemed effective upon adoption. 3 SECTION 6. This Resolution shall have the force of a continuing agreement with the 4 Franchisee-1 and Franchisee-2 and the Franchise Authority shall not amend or otherwise alter 5 this Resolution without the consent of the Franchisee-1 and Franchisee-2. 6 SECTION 7. This Resolution shall also acknowledge that any franchise agreement 7 transferred pursuant hereto has associated with it the corresponding obligations and benefits 8 set forth in the Dedicated Capacity Agreement. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 9 PASSED AND ADOPTED this day of ,2005. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner ATTEST: City Clerk (city seal) CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM XII. - LEGAL ITEM B.1 Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office r81 August 2, 2005 July 18, 2005 (Noon.) D October 5, 2005 September 19,2005 (Noon) D August 16, 2005 August I, 2005 (Noon) D October 18, 2005 October 3, 2005 (Noon) D September 6, 2005 August 15,2005 (Noon) D November I, 2005 October 17, 2005 (Noon) D September 20, 2005 September 6, 2005 (Noon) D November 15,2005 October 31,2005 (Noon) NATURE OF AGENDA ITEM D Administrative D D D D D Consent Agenda Public Hearing Bids D Development Plans D r81 D D New Business .(~ Legal Unfinished Business . :=-;J r ." .-, , -~ [--, _J --:-;.... \/:, -'/ -"~. ;-"'..) ~-=:i~ c).,...,. 0--, ;-'1 <; RECOMMENDATION: Approve amendment to the Code of Ordinances, Section 16-82, increasing tleach parking permits and related fees, and eliminating redundant language. The annual resident fee would increase from $20 to $30 and the seasonal non-resident fee would increase from $60 to $90. Announcement Presentation City Manager's Report EXPLANATION: Oceanfront Park is one of our most popular facilities. On average, 668 people visit the park each day. It offers a nationally certified lifeguard staff, a beautiful scenic boardwalk, picnic areas, restrooms and playground. Beach parking fees have not increased since 2000. However, in the past five years, the costs to maintain these amenities, and the general operation expenses have significantly increased. Our annual resident parking permit is $20. In comparison, The City of Delray Beach charges $63.50 for their resident parking permit, and the City of Boca Raton charges $31.00. PROGRAM IMPACT: N/A FISCAL IMPACT: Current revenues generated from the beach operation, which include parking permits, daily parking fees and the concession lease agreement, total $291,882. The recommended fee increase will generate approximately $70,000 in additional revenue to help offset the annual operating expenses ($503,798 for FY 2004-05). A detailed revenue and expense summary is attached as "Exhibit A." ALTERNATIVES: Increase beach parking permits fees less than recommended, or do not increase at this time. ~ ~ b~/~/1'I7itt~ #2 Department Heil's Signature ~11~~ ~~lS City Manager's Sign~ Recreation & Parks Department Name City Attorney / Finance / Human Resources S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC EXHIBIT A RECREATION & PARKS DEPARTMENT MEMORANDUM NO. 05-86 TO: Wilfred Hawkins, Assistant City Manager FROM: Wally Majors, Recreation & Parks Director DATE: July 14, 2005 SUBJECT: Oceanfront Park Parking Permit Fees In a continuing effort to offset a greater portion of operating expenses through user fees, we recommend raising parking permits fees at Oceanfront Park accordingly: Type Description Current Proposed Fee Fee Resident Annual Parking Permits Annual (issued to residents $20.00 $30.00 owning or renting in the city for minimum of 6 months) Temporary Parking Permits Seasonal (issued to non-residents, $60.00 $90.00 valid May 1 - Nov 15) Replacement Fee Lost or mutilated decal that can $10.00 $15.00 be identified Replacement Fee Lost or mutilated decal with no $20.00 $30.00 identifiable portion Beach parking permit fees were previously increased in 2000. The table below summarizes revenues and expenses associated with beach operations. Although the snack bar lease agreement expires in November, we expect the new lease will not yield lower annual income. YEAR REVENUE Operating Expenses Beach Decals Parking Fees Concession Total LifeguardlParking Parks (resident & non- Attendant Custodial Total Expenses resident) (daily visitors) Operation Revenue Operations Maintenance 2002-03 $ 137,723 $ 118,212 $ 22,800 $ 278,735 $ 469,003 $ 13,728 $ 6,460 $ 489,191 2003-04 $ 142,230 $ 130,449 $ 22,800 $ 295,479 $ 490,338 $ 14,450 $ 6,460 $ 511,248 2004-05 $ 141,592* $ 127,490* $ 22,800 $ 291,882 $ 482,128 $ 15,210 $ 6,460 $ 503,798 * estimated /wm ] ORDINANCE NO. 05- 2 3 AN ORDINANCE OF THE CITY COMMISSION OF THE 4 CITY OF BOYNTON BEACH, FLORIDA, AMENDING 5 CHAPTER 16, "PARKS AND RECREATION", ARTICLE 6 II, "CITY PARKS AND BEACHES" BY AMENDING 7 SECTION 16-82 TO PROVIDE FOR AN INCREASE OF 8 BEACH P~NG PERMITS AND RELATED FEES 9 AND ELIMINATING REDUNDANT LANGUAGE; ]0 PROVIDING FOR CONFLICT, SEVERABILITY, ]] CODIFICATION AND AN EFFECTIVE DATE. 12 13 WHEREAS, staff has become aware that the cost to maintain and general operation 14 expenses of the Oceanfront Park with its scenic boardwalk, picnic areas, restrooms and 15 playground have significantly increased; and 16 WHEREAS, Beach parking fees have not increased since 2000; and 17 WHEREAS, the City Commission of the City of Boynton Beach, Florida has 18 determined that it is in the best interests of the citizens and residents of the City to amend the ] 9 Code to increase the beach parking permits and related fees and eliminating redundant 20 language; 2] NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF 22 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 23 Section 1. The foregoing Whereas clauses are true and correct and incorporated 24 herein by this reference. 25 Section 2. That Chapter 16, " Parks and Recreation", Article II "City Parks and 26 Beaches" Section 16-82 is hereby amended by adding the words and figures in underlined 27 type, and by deleting the words and figures in struck-through type, as follows: 28 29 Sec. 16-82. Rules, regulations controlling parking of vehicles at municipal 30 beach property located within the Town of Ocean Ridge. 3] 32 The city manager is hereby directed to implement subject procedures at the earliest possible date. 33 (Said regulations are set out below.) 34 Page I 1 2 POLlCY NO. ]. P ARK1NG PERMlTS 3 4 Parking permits will be issued on an annual basis (October 1 through September 30) Wttfl 5 issuance bebinl1ing September 1 each year to residents (see "definitions") of the City of 6 Boynton Beach, for a charge of twenty thirty-dollars ($~30.00) for the first decal issued to 7 a resident vehicle, upon satisfactory completion of appropriate application forms. Applicants 8 will be required to establish proof of residency in the City of Boynton Beach (see 9 "definitions") and to present his official state motor vehicle tag registration certificate. 10 11 "''ben application is made for more than one permit, each separate individual vehicle 12 registration must be presented. Residents who are not property owners must establish 13 residency by some suitable means, such as voter's registration, executed lease, utility bills or 14 other legal document. 15 16 Pernlanent beach parking pennit decals shall be issued at a charge of twenty dollars 17 ($20.00) only to residents mvning, leasing, renting, occupying or residing in real estate in the 18 Bity for at least six (6) months of each year. Proof of six (6) months' residency, if property is 19 not o\vned, shall be established by lease agreements, rent receipts or "fitten lessor 20 verification. 21 22 Lost or mutilated parking permits. In the event that the vehicle to which the permanent 23 decal was issued has been sold or otherwise changed ownership and/or in the event a properly 24 issued parking decal is mutilated and can be identified, such decal will be replaced for a 25 charge of teHfifteen dollars ($~15.00) provided the holder can return an identifiable 26 portion of the mutilated parking decal to the city. In the event the holder of a lost or mutilated 27 parking permit cannot provide an identifiable portion or part of such parking decal, the charge 28 for a replacement decal will be the sum ofhventythirty dollars ($~30.00). Lost decals will 29 not be replaced until after a thirty-day waiting period from the date the decal is reported lost. 30 31 Definitions. 32 33 Resident: Anyone owning real estate and/or leasing, renting or occupying real estate or 34 living accommodations within the City of Boynton Beach for a time period of at least six (6) 35 consecutive months each calendar year, as well as members of their immediate family residing 36 with them; provided, however, for purposes of this section, the term "City of Boynton Beach" 37 shall include all property within the corporate limits of the Town Ocean Ridge. Proof of six 38 (6) months' residency, if property is not owned, shall be established by lease agreements, rent 39 receipts or written lessor verification. 40 41 Qualified nonresident: Anyone who is not a resident but who resides in the 42 agricultural reserve area of unincorporated Palm Beach County bounded on the south by 43 lateral Canal No. 30, bounded on the north by Hypoluxo Road, and bounded on the west by Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 the Loxahatchee National Wildlife Refuge. City employees: All city employees, classified and nonclassified and retired regardless of residency shall be eligible to receive one parking permit. Proof of employment shall be established through the personnel department of the city. Persons who terminate (not retired) their employment with the city and who are not city residents shall be required to scrape off their stickers and return remains to the issuing office. POLICY NO.2. PROCEDURE FOR ISSUANCE OF P ARKlNG PERMITS (I) Ensure that applicants are residents as defined in Policy No.1. (2) Have applicant complete permanent application form. (3) Request proof of residency. Proof established in accordance with Policy No.1. (4) Request separate vehicle registration for each parking permit to be issued. 20 (5) Residents leasing automobiles should provide contract documents establishing the lease agreement or arrangement or company car assignment. 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 (6) Issuing authority shall complete parking permit application by listing separate permit numbers opposite the make, model and year of each vehicle. (7) All parking permits shall be permanently affixed upon the lower, left-hand side ( driver's side) of the front windshield of such vehicle. Decals placed on a vehicle other than the one for which it was originally issued shall be construed to be void. (8) Parking permits issued to motorcycles, motor bikes, and motor scooters shall be displayed on the left front fork of such vehicle or other visible location in the area of the left front. POLICY NO.3. TEMPORARY P ARKlNG PERMITS Qualified nonresidents: Qualified nomesidents may obtain beach decals which permit parking on specified dates and times. The cost for such permit and the dates they are valid shall be as set forth herein: The permit fee for Qualified nomesidents shall be sHHyillnety dollars ($~90.00) each, and shall be valid seven (7) days a week, from May I to November 15. Page 3 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 PARKING FEES FOR MOTOR VEHICLES A daily parking fee is hereby established for all motor vehicles parking at the public beach except those hereinafter excepted in accordance with the following rates and charges. Class J. Automobiles, motor scooters, motor bikes, motorcycles: May I ~-November 15 $ 4.76 Tax 0.21 $ 5.00 November 16-April 30 $ 9.52 Tax 0.18 $10.00 Class 2. Buses, trucks and other motor vehicles not included or described in Class I hereof ~ Tax ~ $10.00 Vehicle definitions. Class J. A passenger vehicle designed for family pleasure. Class 2. A passenger vehicle designed for group (more than 10 passengers) transportation other than family pleasure. Exceptions: (1) Vehicle having affixed thereto a parking permit issued in accordance with the rules and regulations of Policies 1 and 2. (2) Official state, county and city vehicles entering the park m the performance of governmental functions. (3) The vehicles of public utility companies, workmen, tradesmen, or salesmen when engaged in official park business. (4) School buses transporting Florida school, college or university students in a group or body for a field trip for educational purposes. This exception shall not apply to vehicles transporting such groups to the park for recreational purposes. (5) Florida school groups, as mentioned in exception (4), must make prearrangements with the director of recreation and parks or his designee by submitting a letter from the school principal certifying that the trip is a part ofthe school curriculum. Page 4 1 2 Parking permits will be available to all city residents as outlined in Policies 1 and 2. Vehicles 3 not exhibiting the permit will be required to pay the parking fee in accordance with this 4 policy. 5 6 7 PARKING AREAS FOR MOTOR VEHICLES 8 9 (I) All motorcycles, motor bikes, and motor scooters shall park in the designated areas on 10 the upper level of the parking area at the public beach. 11 12 (2) The parking spaces in the upper level of the parking area at the public beach shall be 13 used exclusively by automobiles. Additionally, only vehicles having affixed thereto a parking 14 permit issued in accordance with the rules and regulations of Policies 1 and 2 may park in said · 15 upper level; provided, however, that handicapped persons may park in designated spaces on 16 the upper level without having a parking permit affixed to their vehicles. 17 18 (3) All other motor vehicles, including all vans, campers, trucks, buses and trailers shall 19 park in the lower level spaces ofthe parking area at the public beach. 20 21 22 PENALTY FOR NONCOMPLIANCE WITH RULES AND REGULATIONS 23 24 It shall be unlawful for any person to falsify information in the process of applying for a 25 parking permit, for any person to sell a parking permit, for any person to transfer a parking 26 permit to a nonresident, or for any person to fail to follow the rules and regulations pertaining 27 to the use of the parking facilities at the public beach. 28 29 Section 3. Should any section or provision of this ordinance or portion hereof, any paragraph, 30 sentence or word be declared by a court of competent jurisdiction to be invalid, such decision 31 shall not affect the remainder of this ordinance. Authority is hereby granted to codify said ordinance. This ordinance shall become effective immediately upon passage. 32 Section 4. 33 Section 5. 34 Page 5 2 3 4 5 6 7 8 9 10 . 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FIRST READING this _ day of August, 2005. SECOND, FINAL READING AND PASSAGE this _ day of ,2005. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner ATTEST: City Clerk Page 6 '.."~.",.."j:.,,,.,O.<'" ' - ..- "","". j (' \ \ 3)t, --'. - . -. fIi C"\ -. -. -Iv 1- ", /":y- .- /, ~O .<;, ~ CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM XII. - LEGAL ITEM C.! Requested City Commission Date Final Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meeting Dates [gJ August 2, 2005 July ]8,2005 (Noon,) D October 5, 2005 D August \6,2005 August \,2005 (Noon) D October \8, 2005 D September 6, 2005 August 15,2005 (Noon) D November \, 2005 D September 20, 2005 September 6, 2005 (Noon) D November \5,2005 Date Final Form Must be Turned in to City Clerk's Office September \9,2005 (Noon) October 3, 2005 (Noon) ") =-; October \7,2005 (Noon}.-; l ,. October 3\, 2005 (Noonr ~I ; ~ --"-'.C..-J ;:--=.) D Administrative D Development Plans >.Jj D D .. NATURE OF Consent Agenda New Business G.) AGENDA ITEM D Public Hearing [gJ Legal ....... D Bids D Unfinished Business D Announcement D Presentation D City Manager's Report ~_.~ .,._t~ -~-~C1 -"- fTl n> ("0 :'1: RECOMMENDATION: Authorization to enter into an agreement with the State Department of Environmental Protection in furtherance of an approved outdoor recreation project. EXPLANATION: The Recreation and Parks Department has been awarded a $200,000 grant to develop the Wilson Park property. The FRDAP grant will provide matching funds (up to $200,000) for the Phase I redevelopment of this land. This includes a Tot Lot playground, picnicking facilities, native landscaping, improvements to the pool deck and equipment for the pool operation, parking lot lighting, bike rack and connection to a greenways project. The City will have up to three years from the effective date of the project agreement to complete the project. PROGRAM IMPACT: The Wilson Project is a vital part of the Heart Of Boynton Plan. The park will enhance the livability of this area by providing a blend of active and passive recreation activities. This approach to park development allows for a mixed recreational use of the limited public space in the city. FISCAL IMPACT: We will receive a $200,000 grant through FRDAP. The Department of Environmental Protection requires a 50% cash match from the City of Boynton Beach. There is $379,500 budgeted for park development in the adopted Capital Improvements Plan for FY2004/05 (Account# 302-4298-580-63-05). ALTERNATIVES: Not accept the grant; the City would pay for all costs associated with park development. ~<~ / , ..,,' '. Department Head's Signature Recreation and Parks Department Name " -\~ ~ity Attorney I Finance I Human Resources S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC r! 1 RESOLUTION NO. R05- 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, 4 FLORIDA, AUTHORIZING THE MAYOR AND CITY 5 CLERK TO ENTER INTO AN AGREEMENT \VITH THE 6 STATE DEPARTMENT OF ENVIRONMENTAL 7 PROTECTION 2005/06 FLORIDA RECREATION 8 DEVELOPMENT ASSIST ANCE PROGRAM FOR 9 FUNDING TO DEVELOP THE WILSON PARK 10 PROPERTY; AND PROVIDING AN EFFECTIVE DATE. 11 12 WHEREAS, in 2002, the City of Boynton Beach applied for and received a Florida 13 Recreation Development Assistance Program ("FRDAP") grant for the purchase of two pieces 14 of properties adjacent to the Wilson Park, for future expansion of the park; and 15 WHEREAS, FRDAP is a competitive program that provides grants to local 16 government entities for acquisition and development of land for public outdoor recreation; 17 and 18 WHEREAS, the Recreation and Parks Department has been awarded a $200,000.00 19 grant to develop Wilson Park property; and 20 WHEREAS, the Florida Department of Environmental Protection administers 21 FRDAP; and 22 WHEREAS, the Wilson Project is a vital part ofthe Heart of Boynton plan and will 23 enhance the livability of this area by providing a blend of active and passive recreation 24 activities; and 25 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF 26 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 27 28 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being 29 true and correct and are hereby made a specific part of this Resolution upon adoption hereof. S:\CA\RESO\Agreements\Grants\Wilson Project - FRDAP Grant Agmt.doc """"",-"""'~i(.,iitlIj": . 11', '.'''~i''.t:..,,,,, if' ';;I , UUlW>.........",~"""",.,~,.....,.",.,....., 1 Section 2. The City Commission of the City of Boynton Beach hereby authorizes 2 the Mayor and City Clerk to execute the Florida Department of Environmental Protection 3 2005/06 Florida Recreation Development Assistance Program Project Agreement for a grant 4 in the amount of $200,000.00 for the Wilson Park Project. 5 Section 2. This Resolution shall become effective immediately upon passage. 6 PASSED AND ADOPTED this _ day of August, 2005. 7 8 9 CITY OF BOYNTON BEACH, FLORIDA 10 11 12 Mayor 13 14 15 Vice Mayor 16 17 18 Commissioner 19 20 21 Commissioner 22 23 24 Commissioner 25 ATTEST: 26 27 28 City Clerk 29 30 31 S:\CA\RESO\Agreements\Grants\Wilson Project - FRDAP Grant Agmt.doc DEP Agreement No. F6063 CSFA Number: 37.017 CSF A Title: FRDAP FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION FLORIDA RECREATION DEVELOPMENT ASSISTANCE PROGRAM (FRDAP) PROJECT AGREEMENT (SFY 2005-06) - Development This Agreement is made and entered into between the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, hereinafter called the DEPARTMENT, and the CITY OF BOYNTON BEACH, hereinafter called the GRANTEE, a local government, in furtherance of an approved public outdoor recreation project. In consideration of the mutual covenants contained herein and pursuant to section 375.075, Florida Statutes, and chapter 62D-5, Part V, Florida Administrative Code, the parties hereto agree as follows: 1. This PROJECT AGREEMENT shall be performed in accordance with section 375.075, Florida Statutes, and chapter 62D-5, Part V, Florida Administrative Code, hereinafter called the RULE. The GRANTEE shall comply with all provisions of the RULE, effective August 15, 2004, which is incorporated into this PROJECT AGREEMENT as if fully set forth herein. It is the intent of the DEPARTMENT and the GRANTEE that none of the provisions of section 163.01, Florida Statutes, shall have application to this PROJECT AGREEMENT. 2. The DEPARTMENT has found that public outdoor recreation is the primary purpose of the project known as Wilson Park (Florida Recreation Development Assistance Program, FRDAP Project Number F06063), hereinafter called the PROJECT, and enters into this PROJECT AGREEMENT with the GRANTEE for the development of that real property, the legal description of which shall be submitted to the DEPARTMENT as described in the Florida Recreation Development Assistance Program Development Project Pre- reimbursement/Commencement Documentation Form, DEP Form FPS-A034. 3. All forms hereinafter referenced may be found at www.dep.state.fl.us/parks/bdrs. Further, the GRANTEE will also receive all applicable forms for administration of project with GRANTEE's copy of fully executed PROJECT AGREEMENT. DEP Agreement No. F6063, Page 1 of 10 DEP 55-231 (01/05) 4. The GRANTEE shall construct, or cause to be constructed, certain public outdoor recreation facilities and improvements consisting of the following PROJECT ELEMENTS which may be modified by the DEPARTMENT if GRANTEE shows good cause: Playground, picnic pavilion, greenway connection, renovate pool, landscaping, parking and other related support facilities. 5. The DEPARTMENT shall pay, on a reimbursement basis, to the GRANTEE, funds not to exceed $200,000.00 which will pay the DEPARTMENT's share of the cost of the PROJECT. DEPARTMENT funding is based upon the following: DEPARTMENT Amount: $200,000.00 50% GRANTEE Match: $200,000.00 50% Type of Match: Cash/In-Kind Services and/or Land Value 6. The PROJECT reimbursement request shall include all documentation required by the DEPARTMENT for a proper pre-audit and post-audit review. Within sixty (60) days after receipt of the final request, the DEPARTMENT's Grant Manager shall review the completion documentation and payment request from the GRANTEE for the PROJECT. If the documentation is sufficient and meets the requirements of the Florida Recreation Development Assistance Program Completion Documentation Form, DEP Form FPS-A036, referenced in s. 620- 5.058(6)(g), the DEPARTMENT will approve the request for payment. 7. In addition to the invoicing requirements contained in the paragraph above, the Department will periodically request proof of a transaction (such as invoice, payroll register) to evaluate the appropriateness of costs to the PROJECT AGREEMENT pursuant to State guidelines (including cost allocation guidelines), as appropriate. When requested, this information must be provided within 30 calendar days of the date of such request. The GRANTEE may also be required to submit a cost allocation plan to the Department in support of its multipliers (overhead, indirect, general administrative costs, and fringe benefits). All bills for amounts due under this Agreement shall be submitted in detail sufficient for a proper pre-audit and post-audit thereof. State guidelines for allowable costs can be found in the Department of Financial Services' Reference Guide for State Expenditures at http://www.dbf.state.fl.us/aadir/reference guide. 8. The GRANTEE agrees to comply with the Division of Recreation and Parks' Grant and Contract Accountability Procedure, hereinafter called the PROCEDURE and incorporated into this PROJECT AGREEMENT by reference as if fully set forth herein. All purchases of goods and services for accomplishment of the PROJECT shall be secured in accordance with the GRANTEE's procurement procedures. Expenses representing the PROJECT costs, including the required matching contribution, shall be reported to the DEPARTMENT and summarized on certification forms provided in the PROCEDURE. The DEPARTMENT and GRANTEE agree to use the DEP Agreement No. F6063, Page 2 of 10 DEP 55-231 (01/05) PROCEDURE guidelines for accounting for FRDAP funds disbursed for the PROJECT. The parties further agree that the principles for determining the eligible costs, supporting documentation and minimum reporting requirements of the PROCEDURE shall be used. 9. Allowable indirect costs as defined in the PROCEDURE shall not exceed 15% of the GRANTEE's eligible wages and salaries, unless approved in advance as described herein. Indirect costs that exceed 15% must be approved in advance in writing by the DEPARTMENT to be considered eligible PROJECT expenses. 10. It is understood by the parties that the amount of this PROJECT AGREEMENT may be reduced should the Governor's Office declare a revenue shortfall and assess a mandatory reserve. Should a shortfall be declared, the amount of this PROJECT AGREEMENT may be reduced by the amount deemed appropriate by the DEPARTMENT. 11. A. The State of Florida's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature. The parties hereto understand that this Agreement is not a commitment of future appropriations. B. The GRANTEE understands that the funds supporting this Agreement are subject to certification forward approval by the Governor's Office on June 30th each year. The GRANTEE understands and agrees that if the Governor's Office does not approve the DEPARTMENT's request to certify the funds forward, the GRANTEE will not be eligible for reimbursement after the reversion of said funds. 12. All monies expended by the GRANTEE for the purpose contained herein shall be subject to pre-audit review and approval by the State of Florida Chief Financial Officer in accordance with section 17.03(2), Florida Statutes. 13. PROJECT funds may be reimbursed for eligible Preagreement Expenses (as defined in s. 62D-5.054(34) of the RULE) incurred by GRANTEE prior to execution of this PROJECT AGREEMENT in accordance with s. 62D-5.055(9) of the RULE. The DEPARTMENT and the GRANTEE fully understand and agree that there shall be no reimbursement of PROJECT funds by the DEPARTMENT for any expenditure made prior to the execution of this PROJECT AGREEMENT with the exception of those expenditures which meet the requirements of the foregoing sections of the RULE. 14. Prior to commencement of PROJECT development, the GRANTEE shall submit the documentation required by the Florida Recreation Development Assistance Program Development Project Pre-reimbursement/Commencement Documentation Form, DEP Form FPS-A034, referenced in s. 62D-5.058(7)(c) of the RULE, to the DEPARTMENT. Upon determining that the documentation DEP Agreement No. F6063, Page 3 of 10 DEP 55-231 (01/05) complies with the RULE, the DEPARTMENT will give written notice to GRANTEE to commence the development and approve the request for payment. 15. The GRANTEE shall obtain all required local, state and federal permits and approvals prior to commencement of project construction and shall certify that it has done so to the DEPARTMENT by completing the Project Permitting Certification, FPS-A035, referenced in s. 62D-5.058(7)(c)1 of the RULE. 16. This PROJECT AGREEMENT shall become effective upon execution and the GRANTFI= ~hall complete construction of all PROJECT ELEMENTS on or before 90 r.j 6) DATes (hereinafter referred to as the PROJECT completion date), at which time all payment requests and completion documentation will be due to the DEPARTMENT. The GRANTEE understands that if the Governor's Office does not approve the DEPARTMENT's request to certify the funds forward on June 30th of each year, the GRANTEE will not be eligible for reimbursement after the reversion of said funds or the denial of the certification forward, whichever is earlier. 17. Project completion means the project is open and available for use by the public. Project must be designated complete prior to release of final reimbursement. See Rule 620-5.054(41). 18. The GRANTEE shall retain all records supporting PROJECT costs for five (5) years after the fiscal year in which the final PROJECT payment was released by the DEPARTMENT or until final resolution of matters resulting from any litigation, claim or audit that started prior to the expiration of the five-year retention period. The DEPARTMENT, State Auditor General, State Chief Financial Officer and other agencies or entities with jurisdiction shall have the right to inspect and audit the GRANTEE's records for said PROJECT during the PROJECT and within the retention period. 19. In addition to the provisions contained in the paragraph above, the GRANTEE shall comply with the applicable provisions contained in Attachment 1. A revised copy of Attachment 1, Exhibit-1, must be provided to the GRANTEE with each amendment which authorizes a funding increase or decrease. The revised Exhibit-1 shall summarize the funding sources supporting the PROJECT AGREEMENT for purposes of assisting the GRANTEE in complying with the requirements of Attachment 1. If the GRANTEE fails to receive a revised copy of Attachment 1, Exhibit-1, the GRANTEE shall notify the Department's FRDAP Grants Administrator at (850) 245-2501 to request a copy of the updated information. 20. Following receipt of an audit report identifying any reimbursement due the DEPARTMENT for the GRANTEE's non- compliance with this PROJECT AGREEMENT, the GRANTEE will be allowed a maximum of thirty (30) days to submit additional pertinent documentation to offset the amount identified as DEP Agreement No. F6063, Page 4 of 10 DEP 55-231 (01/05) being due to the DEPARTMENT. The DEPARTMENT, following a review of the documentation submitted by the GRANTEE, will inform the GRANTEE of the final reimbursement due the DEPARTMENT. 21. The GRANTEE, as an independent contractor and not an agent, representative, or employee of the DEPARTMENT, agrees to carry adequate liability and other appropriate forms of insurance. The DEPARTMENT shall have no liability except as specifically provided in this PROJECT AGREEMENT. 22. To the extent required by law, the GRANTEE will be self-insured against, or will secure and maintain during the life of this PROJECT AGREEMENT, Workers' Compensation Insurance for all of his employees connected with the work of this project and, in case any work is subcontracted, the GRANTEE shall require the subcontractor to provide Workers' Compensation Insurance for all of the subcontractor's employees unless such employees are covered by the protection afforded by the GRANTEE. Such self-insurance program or insurance coverage shall comply fully with the Florida Workers' Compensation law. In case any class of employees engaged in hazardous work under this Agreement is not protected under Workers' Compensation statutes, the GRANTEE shall provide, and cause each subcontractor to provide, adequate insurance satisfactory to the DEPARTMENT, for the protection of its employees not otherwise protected. 23. The purchase of non-expendable equipment is not authorized under the terms of this Agreement. 24. For the purpose of this PROJECT AGREEMENT, the DEPARTMENT's Grant Manager shall be responsible for ensuring performance of its terms and conditions and shall approve all reimbursement requests prior to payment. The GRANTEE's Grant Manager, identified in paragraph 25, or successor, shall act on behalf of the GRANTEE relative to the provisions of this PROJECT AGREEMENT. The GRANTEE, shall submit to the DEPARTMENT signed PROJECT status reports every January 5th, May 5th, and September 5th of each year summarizing the work accomplished, problems encountered, percentage of completion, and other information which may be requested by the DEPARTMENT. Photographs to reflect the construction work accomplished shall be submitted when the DEPARTMENT requests them. 25. Any and all notices required by this PROJECT AGREEMENT shall be deemed sufficient if delivered or sent by United States Postal Service to the parties at the following addresses: DEP Agreement No. F6063, Page 5 of 10 DEP 55-231 (01/05) GRANTEE's Grant Manager DEPARTMENT's Grant Manager Mr. Wally Majors Recreation & Parks Director 100 E. Boynton Beach Blvd. P.O. Box 310 Boynton Beach, FL 33435 A. Diane Langston Florida Department of Environmental Protection 3900 Commonwealth Blvd., MS585 Tallahassee, Florida 32399-3000 26. Prior to final reimbursement, the GRANTEE must erect a permanent information sign on the PROJECT site which credits PROJECT funding or a portion thereof, to the Florida Department of Environmental Protection and the Florida Recreation Development Assistance Program. 27. The DEPARTMENT has the right to inspect the PROJECT and any and all records related thereto at any reasonable time. 28. This PROJECT AGREEMENT may be unilaterally canceled by the DEPARTMENT for refusal by the GRANTEE to allow public access to all documents, papers, letters, or other material made or received by the GRANTEE in conjunction with this PROJECT AGREEMENT unless the records are exempt under Section 24(a) of Article I of the State Constitution and Section 119.07(1), Florida Statutes. 29. Prior to the closing of the PROJECT, the DEPARTMENT shall have the right to demand a refund, either in whole or in part, of the FRDAP funds provided to the GRANTEE for non-compliance with the material terms of this PROJECT AGREEMENT. The GRANTEE, upon such written notification from the DEPARTMENT, shall refund, and shall forthwith pay to the DEPARTMENT, the amount of money demanded by the DEPARTMENT. Interest on any refund shall begin the date that the GRANTEE was informed that a refund was required until refund and interest are paid to the DEPARTMENT. 30. The GRANTEE shall comply with all federal, state and local regulations, rules and ordinances in developing this PROJECT. The GRANTEE acknowledges that this requirement includes compliance with all federal, state and local health and safety rules and regulations including all applicable building codes. The GRANTEE further agrees to include the requirements of this paragraph in all subcontracts made to perform this PROJECT AGREEMENT. 31. The GRANTEE may subcontract work under this Agreement without the prior written consent of the DEPARTMENT'S Grant Manager. The GRANTEE agrees to be responsible for the fulfillment of all work elements included in any subcontract. It is understood and agreed by the GRANTEE that the DEPARTMENT shall not be liable to any subcontractor for any expenses or liabilities incurred under the subcontract and that the GRANTEE shall be solely DEP Agreement No. F6063, Page 6 of 10 DEP 55-231 (01/05) liable to the subcontractor for all expenses and liabilities incurred under the subcontract. 32. Land owned by the GRANTEE, which is developed or acquired with FRDAP funds, shall be dedicated in perpetuity as an outdoor recreation site by the GRANTEE for the use and benefit of the public as stated in section 62D-5.059(1) of the RULE. Land under control other than by ownership of the GRANTEE, such as by lease, shall be dedicated as an outdoor recreation area for the use and benefit of the public for a minimum period of twenty-five (25) years from the completion date set forth in the PROJECT completion certificate. All dedications must be recorded in the county property records by the owner, or by the GRANTEE if the owner has given GRANTEE authority to do so. Such PROJECT shall be open at reasonable times and shall be managed in a safe and attractive manner appropriate for public use. 33. Failure to comply with the provisions of the RULE or the terms and conditions of this PROJECT AGREEMENT will result in cancellation of the PROJECT AGREEMENT by the DEPARTMENT. The DEPARTMENT shall give the GRANTEE in violation of the RULE or this PROJECT AGREEMENT a notice in writing of the particular violations stating a reasonable time to comply. Failure to comply within the time period stated in the written notice shall result in cancellation of the PROJECT AGREEMENT and shall result in the imposition of the terms in Paragraph 29. 34. In the event of conflict in the proVIsions of the RULE, the PROJECT AGREEMENT and the Project Application, the provisions of the Rule shall control over this PROJECT AGREEMENT and this PROJECT AGREEMENT shall control over the Project Application documents. 35. If the DEPARTMENT determines that site control is not sufficient under the RULE, the DEPARTMENT shall give the GRANTEE a notice in writing and a reasonable time to comply. If the deficiency is not corrected within the time specified in the notice, the DEPARTMENT shall cancel this PROJECT AGREEMENT. 36. Pursuant to section 216.347, Florida Statutes, the GRANTEE is prohibited from spending FRDAP funds for the purpose of lobbying the legislature, the judicial branch, or a state agency. 37. A. No person on the grounds of race, creed, color, national origin, age, sex, marital status or disability, shall be excluded from participation in; be denied the proceeds or benefits of; or be otherwise subjected to discrimination in performance of this PROJECT AGREEMENT. B. An entity or affiliate who has been placed on the discriminatory vendor list may not submit a bid on a contract to provide goods or seNices to a DEP Agreement No. F6063, Page 7 of 10 DEP 55-231 (01/05) public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not award or perform work as a contractor, supplier, subcontractor, or consultant under contract with any public entity, and may not transact business with any public entity. The Florida Department of Management Services is responsible for maintaining the discriminatory vendor list and intends to post the list on its website. Questions regarding the discriminatory vendor list may be directed to the Florida Department of Management Services, Office of Supplier Diversity at (850) 487-0915. 38. Each party hereto agrees that it shall be solely responsible for the wrongful acts of its employees and agents. However, nothing contained herein shall constitute a waiver by either party of its sovereign immunity or the provisions of section 768.28, Florida Statutes. 39. The employment of unauthorized aliens by any GRANTEE is considered a violation of Section 274A(e) of the Immigration and Nationality Act. If the GRANTEE knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this Agreement. The GRANTEE shall be responsible for including this provision in all subcontracts issued as a result of this Agreement. 40. A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not perform work as a grantee, contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in s. 287.017, Florida Statutes, for Category Two, for a period of 36 months from the date of being placed on the convicted vendor list. 41. The PROJECT AGREEMENT has been delivered in the State of Florida and shall be construed in accordance with the laws of Florida. Wherever possible, each provision of this PROJECT AGREEMENT shall be interpreted in such manner as to be effective and valid under applicable Florida law, but if any provision of this PROJECT AGREEMENT shall be prohibited or invalid under applicable Florida law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this PROJECT AGREEMENT. Any action hereon or in connection herewith shall be brought in Leon County, Florida unless prohibited by applicable law. 42. No delay or failure to exercise any right, power or remedy accruing to either party upon breach or default by either party under this PROJECT AGREEMENT shall impair any such right, power or remedy of either party; nor shall such delay or failure be construed as a waiver of any such breach or default, or any similar breach or default thereafter. DEP Agreement No. F6063, Page 8 of 10 DEP 55-231 (01/05) 43. This PROJECT AGREEMENT is not intended nor shall it be construed as granting any rights, privileges or interest to any third party without mutual written agreement of the parties hereto. 44. This PROJECT AGREEMENT is an exclusive contract and may not be assigned in whole or in part without the written approval of the DEPARTMENT. 45. This PROJECT AGREEMENT represents the entire agreement of the parties. Any alterations, variations, changes, modifications or waivers of provisions of this PROJECT AGREEMENT shall only be valid when they have been reduced to writing, duly executed by each of the parties hereto, and attached to the original of this PROJECT AGREEMENT. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK DEP Agreement No. F6063, Page 9 of 10 DEP 55-231 (01/05) IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed on the day and year last written below. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION CITY OF BOYNTON BEACH By: Division Director (or Designee) Division of Recreation and Parks Do 10J1 :':>lc,0 By: Printed Name: Title: DO R:>C5T Dftre; Date Date Address: Office of Information and Recreation Services Division of Recreation and Parks 3900 Commonwealth Boulevard Mail Station 585 Tallahassee, Florida 32399-3000 Address: 100 E. Boynton Beach Blvd. P.O. Box 310 Boynton Beach, FL 33435 (1 cf)M~a;;~ DEP Grant Manager v Grantee Attorney Approved as to Form and Legality: This form has been pre-approved as to form and legality by Suzanne Brantley, Assistant General Counsel, on January 24,2005 for use for one year. List of attachments/exhibits included as part of this Agreement: Specify Type Letter/ Number Description (include number of pages) Attachment ~ Special Audit Requirements (5 Paqes) DEP Agreement No. F6063, Page 10 of 10 DEP 55-231 (01/05) ATTACHMENT 1 SPECIAL AUDIT REQUIREMENTS The administration of resources awarded by the Department of Environmental Protection (which may be referred to as the "Department", "DEP", "FDEP" or "Grantor", or other name in the contract/agreement) to the recipient (which may be referred to as the "Contractor", Grantee" or other name in the contract/agreement) may be subject to audits and/or monitoring by the Department of Environmental Protection, as described in this attachment. MONITORING In addition to reviews of audits conducted in accordance with OMB Circular A-133 and Section 215.97, F.S., as revised (see "AUDITS" below), monitoring procedures may include, but not be limited to, on-site visits by Department staff, limited scope audits as defined by OMB Circular A-133, as revised, and/or other procedures. By entering into this Agreement, the recipient agrees to comply and cooperate with any monitoring procedures/processes deemed appropriate by the Department of Environmental Protection. In the event the Department of Environmental Protection determines that a limited scope audit of the recipient is appropriate, the recipient agrees to comply with any additional instructions provided by the Department to the recipient regarding such audit. The recipient further agrees to comply and cooperate with any inspections, reviews, investigations, or audits deemed necessary by the Chief Financial Officer or Auditor General. AUDITS PART I: FEDERALLY FUNDED This part is applicable if the recipient is a State or local government or a non-profit organization as defined in OMB Circular A-133, as revised. 1. In the event that the recipient expends $500,000 or more in Federal awards in its fiscal year, the recipient must have a single or program-specific audit conducted in accordance with the provisions of OMB Circular A-133, as revised. EXHIBIT I to this Agreement indicates Federal funds awarded through the Department of Environmental Protection by this Agreement. In determining the Federal awards expended in its fiscal year, the recipient shall consider all sources of Federal awards, including Federal resources received from the Department of Environmental Protection. The determination of amounts of Federal awards expended should be in accordance with the guidelines established by OMB Circular A-133, as revised. An audit of the recipient conducted by the Auditor General in accordance with the provisions of OMB Circular A-133, as revised, will meet the requirements of this part. 2. In connection with the audit requirements addressed in Part I, paragraph 1., the recipient shall fulfill the requirements relative to auditee responsibilities as provided in Subpart C of OMB Circular A-133, as revised. 3. If the recipient expends less than $500,000 in Federal awards in its fiscal year, an audit conducted in accordance with the provisions of OMB Circular A-133, as revised, is not required. In the event that the recipient expends less than $500,000 in Federal awards in its fiscal year and elects to have an audit conducted in accordance with the provisions of OMB Circular A-133, as revised, the cost of the audit must be paid from non-Federal resources (i.e., the cost of such an audit must be paid from recipient resources obtained from other than Federal entities). 4. The recipient may access information regarding the Catalog of Federal Domestic Assistance (CFDA) via the internet at http://12.46.245.173/cfda/cfda.html. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK DEP Agreement No.F6063, Attachment 1, Page 1 of 5 DEP 55-215 (09/04) PART II: STATE FUNDED This part is applicable if the recipient is a nonstate entity as defined by Section 215.97(2)(1), Florida Statutes. I . In the event that the recipient expends a total amount of State fmancial assistance equal to or in excess of $300,000 in any fiscal year of such recipient ($500,000 for fiscal years ending on or after September 30, 2004), the recipient must have a State single or project-specific audit for such fiscal year in accordance with Section 215.97, Florida Statutes; applicable rules of the Executive Office of the Governor and the Chief Financial Officer; and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General. EXHIBIT I to this Agreement indicates State fmancial assistance awarded through the Department of Environmental Protection by this Agreement. In determining the State fmancial assistance expended in its fiscal year, the recipient shall consider all sources of State fmancial assistance, including State financial assistance received from the Department of Environmental Protection, other state agencies, and other nonstate entities. State fmancial assistance does not include Federal direct or pass-through awards and resources received by a nonstate entity for Federal program matching requirements. 2. In connection with the audit requirements addressed in Part II, paragraph 1, the recipient shall ensure that the audit complies with the requirements of Section 215.97(7), Florida Statutes. This includes submission of a fmancial reporting package as defmed by Section 215.97(2)(d), Florida Statutes, and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General. 3. If the recipient expends less than $300,000 in State fmancial assistance in its fiscal year ($500,000 for fiscal years ending on or after September 30, 2004), an audit conducted in accordance with the provisions of Section 215.97, Florida Statutes, is not required. In the event that the recipient expends less than $300,000 in State fmancial assistance in its fiscal year ($500,000 for fiscal years ending on or after September 30, 2004) and elects to have an audit conducted in accordance with the provisions of Section 215.97, Florida Statutes, the cost of the audit must be paid from the non-State entity's resources (i.e., the cost of such an audit must be paid from the recipient's resources obtained from other than State entities). 4. For information regarding the Florida Catalog of State Financial Assistance (CSFA), a recipient should access the Florida Single Audit Act website located at http://state.fl.us/fsaa/catalog or the Governor's Office of Policy and Budget website located at http://www.myflorida.com/myflorida/governmentlcontacts/opbOffice.htmIfor assistance. In addition to the above websites, the following websites may be accessed for information: Legislature's Website http://www.leg.state.fl.us/, Governor's Website http://www.myflorida.com/, Department of Financial Services' Website http://www.dbfstate.fl.us/and the Auditor General's Website http://www.state.fl.us/audgen. PART III: OTHER AUDIT REQillREMENTS (NOTE: This part would be used to specifY any additional audit requirements imposed by the State awarding entity that are solely a matter of that State awarding entity's policy (i.e., the audit is not required by Federal or State laws and is not in conflict with other Federal or State audit requirements). Pursuant to Section 215.97(7)(m), Florida Statutes, State agencies may conduct or arrange for audits of State financial assistance that are in addition to audits conducted in accordance with Section 215.97, Florida Statutes. In such an event, the State awarding agency must arrange for funding the full cost of such additional audits.) PART IV: REPORT SUBMISSION 1. Copies of reporting packages for audits conducted in accordance with OMB Circular A-133, as revised, and required by PART I of this Agreement shall be submitted, when required by Section .320 (d), OMB Circular A-133, as revised, by or on behalf of the recipient directly to each of the following: REMAINDER OF P AGE INTENTIONALLY LEFT BLANK DEP Agreement No. F6063, Attachment 1, Page 2 of 5 DEP 55-215 (09/04) A. The Department of Environmental Protection at the following address: Audit Director Florida Department of Environmental Protection Office ofthe Inspector General, MS 40 2600 Blair Stone Road Tallahassee, Florida 32399-2400 B. The Federal Audit Clearinghouse designated in OMB Circular A-133, as revised (the number of copies required by Sections .320 (d)(I) and (2), OMB Circular A-133, as revised, should be submitted to the Federal Audit Clearinghouse), at the following address: Federal Audit Clearinghouse Bureau of the Census 1201 East 10th Street Jeffersonville, IN 47132 C. Other Federal agencies and pass-through entities in accordance with Sections .320 (e) and (1), OMB Circular A-133, as revised. 2. Pursuant to Section .320(1), OMB Circular A-133, as revised, the recipient shall submit a copy of the reporting package described in Section .320(c), OMB Circular A-133, as revised, and any management letters issued by the auditor, to the Department of Environmental Protection the follo\\cing address: Audit Director Florida Department of Environmental Protection Office of the Inspector General, MS 40 2600 Blair Stone Road Tallahassee, Florida 32399-2400 3. Copies of fmancial reporting packages required by PART II of this Agreement shall be submitted by or on behalf of the recipient directly to each of the following: A. The Department of Environmental Protection at the following address: Audit Director Florida Department of Environmental Protection Office of the Inspector General, MS 40 2600 Blair Stone Road Tallahassee, Florida 32399-2400 B. The Auditor General's Office at the following address: State of Florida Auditor General Room 40 I, Claude Pepper Building 111 West Madison Street Tallahassee, Florida 32399-1450 4. Copies of reports or management letters required by PART III of this Agreement shall be submitted by or on behalf of the recipient directly to the Department of Environmental Protection at the following address: Audit Director Florida Department of Environmental Protection Office of the Inspector General, MS 40 2600 Blair Stone Road Tallahassee, Florida 32399-2400 DEP Agreement No. F6063, Attachment 1, Page 3 of 5 DEP 55-215 (09/04) 5. Any reports, management letters, or other information required to be submitted to the Department of Environmental Protection pursuant to this Agreement shall be submitted timely in accordance with OMB Circular A-133, Florida Statutes, or Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules ofthe Auditor General, as applicable. 6. Recipients, when submitting fmancial reporting packages to the Department of Environmental Protection for audits done in accordance with OMB Circular A-133, or Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General, should indicate the date that the reporting package was delivered to the recipient in correspondence accompanying the reporting package. PART V: RECORD RETENTION The recipient shall retain sufficient records demonstrating its compliance with the tenns of this Agreement for a period of 5 years from the date the audit report is issued, and shall allow the Department of Environmental Protection, or its designee, Chief Financial Officer, or Auditor General access to such records upon request. The recipient shall ensure that audit working papers are made available to the Department of Environmental Protection, or its designee, Chief Financial Officer, or Auditor General upon request for a period of 3 years from the date tbe audit report is issued, unless extended in writing by tbe Department of Environmental Protection. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK DEP Agreement No. F6063, Attachment 1, Page 4 of 5 DEP 55-215 (09/04) ..... I E-o ..... ~ ~ r"'l o 25 :3: o .....l .....l o ~ P-l ::r: f-> ~ o f-> lfJ ...... lfJ Z o U f-> Z P-l ~ P-l P-l ~ o ~ lfJ ~ f-> o f-> f-> Z ~ ~ lfJ ~ ~ P- f-> Z P-l ...... 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Requested City Commission Date Final Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meeting Dates !2J August 2, 2005 July 18,2005 (Noon_) D October 5, 2005 D August 16, 2005 August I, 2005 (Noon) D October 18, 2005 D September 6, 2005 August 15,2005 (Noon) D November 1,2005 D September 20, 2005 September 6, 2005 (Noon) D November 15, 2005 Date Final Form Must be Turned in to City Clerk's Office September 19, 2005 (Noon) '- ..;, _.__J _..,~~ October 3, 2005 (Noon) f_=. October 17,2005 (Noon)- UJ October 31, 2005 (Noon)~~',= -. - -;/ ' c '_0 D Administrative D Development Plans CJ "'"'~- NATURE OF D Consent Agenda D New Business AGENDA ITEM D Public Hearing !2J Legal D Bids D Unfinished Business D Announcement D Presentation D City Manager's Report ~~ ~. ~Ti co ~,-rr; <J "'> ,'.710 ::c RECOMMENDATION: Authorization to enter into an agreement with the State Department of Environmental Protection in furtherance of an approved outdoor recreation project. EXPLANA TION: The Recreation and Parks Department has been awarded a $200,000 grant to develop the Jaycee Park property. The FRDAP grant will provide matching funds (up to $200,000) for the construction of the upland portion ofthe site, including a playground, picnic facilities, walking trail, park benches, signage, educational kiosks, irrigation, bike rack, sidewalk, fence, restrooms and bocce courts. The City will have up to three years from the effective date of the project agreement to complete the project. PROGRAM IMPACT: The City recently purchased the Jaycee Park property from the Florida Inland Navigation District. In accordance with the purchase agreement, the City has forty-eight (48) months to develop the park property. FISCAL IMPACT: The Department of Environmental Protection requires a 50% cash match from the City of Boynton Beach. There is $1,010,000 budgeted for park development in the adopted Capital Improvements Plan for FY2004/05 (Account # 302-4299-580-63-05. This dollar amount also includes funding for wetlands development, to be included in Phase II of park development). AL TERNA TIVES: Not accept the grant; the City would pay for all costs associated with park dev ~#~ Department Head's Sign re Recreation and Parks Department Name City Attorney I Finance I Human Resources S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM_DOC 1 RESOLUTION NO. R05- 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, 4 FLORIDA, AUTHORIZING THE MAYOR AND CITY 5 CLERK TO ENTER INTO AN AGREEMENT WITH THE 6 STATE DEPARTMENT OF ENVIRONMENTAL 7 PROTECTION FOR FUNDING TOWARDS 8 DEVELOPMENT OF JAYCEE PARK, FROM THE 9 DEPARTMENT OF ENVIRONMENTAL PROTECTION 10 2005/06 FLORIDA RECREA TION DEVELOPMENT 11 ASSISTANCE PROGRAM; AND PROVIDING AN 12 EFFECTIVE DATE. 13 14 WHEREAS, the City of Boynton Beach recently purchased the Jaycee Park property 15 from the Florida Inland Navigation District; and 16 WHEREAS, in accordance with the purchase agreement, the City has forty-eight (48) 17 months to develop the park property; and 18 WHEREAS, the Recreation and Parks Department has been awarded a $200,000.00 19 grant to develop Jaycee Park; and 20 WHEREAS, the Florida Recreation Development Assistance Program ("FRDAP") is 21 a competitive program that provides grants to local government entities for acquisition and 22 development of land for public outdoor recreation; and 23 WHEREAS, the Florida Department of Environmental Protection administers 24 FRDAP; and 25 WHEREAS, the FRDAP grant will provide matching funds up to $200,000.00 for the 26 construction ofthe upland portion ofthe site including a playground, picnic facilities, walking 27 trail, park benches, signage, educational kiosks, irrigation, bike rack, sidewalk, fence, 28 restrooms and bocce courts; and 29 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF S:\CA\RESO\Agreements\GrantslJaycee Project - FRDAP Grant Agmt.doc 1 2 3 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 4 being true and correct and are hereby made a specific part of this Resolution upon adoption 5 hereof. 6 Section 2. The City Commission ofthe City of Boynton Beach hereby authorizes 7 the Mayor and City Clerk to execute the Florida Department of Environmental Protection 8 2005/06 Florida Recreation Development Assistance Program Project Agreement for a grant 9 in the amount of$200,000.00 for the Jaycee Park Project. 10 Section 3. This Resolution shall become effective immediately upon passage. 11 PASSED AND ADOPTED this _ day of August, 2005. 12 13 14 CITY OF BOYNTON BEACH, FLORIDA 15 16 17 Mayor 18 19 20 Vice Mayor 21 22 23 Commissioner 24 25 26 Commissioner 27 28 29 Commissioner 30 ATTEST: 31 32 33 City Clerk 34 35 36 S:\CA\RESO\Agreements\Grants\Jaycee Project - FRDAP Grant Agmt.doc DEP Agreement No. F6004 CSFA Number: 37.017 CSFA Title: FRDAP FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION FLORIDA RECREATION DEVELOPMENT ASSISTANCE PROGRAM (FRDAP) PROJECT AGREEMENT (SFY 2005-06) - Development This Agreement is made and entered into between the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, hereinafter called the DEPARTMENT, and the CITY OF BOYNTON BEACH, hereinafter called the GRANTEE, a local government, in furtherance of an approved public outdoor recreation project. In consideration of the mutual covenants contained herein and pursuant to section 375.075, Florida Statutes, and chapter 62D-5, Part V, Florida Administrative Code, the parties hereto agree as follows: 1. This PROJECT AGREEMENT shall be performed in accordance with section 375.075, Florida Statutes, and chapter 62D-5, Part V, Florida Administrative Code, hereinafter called the RULE. The GRANTEE shall comply with all provisions of the RULE, effective August 15, 2004, which is incorporated into this PROJECT AGREEMENT as if fully set forth herein. It is the intent of the DEPARTMENT and the GRANTEE that none of the provisions of section 163.01, Florida Statutes, shall have application to this PROJECT AGREEMENT. 2. The DEPARTMENT has found that public outdoor recreation is the primary purpose of the project known as Jaycee Park (Florida Recreation Development Assistance Program, FRDAP Project Number F06004), hereinafter called the PROJECT, and enters into this PROJECT AGREEMENT with the GRANTEE for the development of that real property, the legal description of which shall be submitted to the DEPARTMENT as described in the Florida Recreation Development Assistance Program Development Project Pre- reimbursement/Commencement Documentation Form, DEP Form FPS-A034. 3. All forms hereinafter referenced may be found at www. dep. state. fl. usjparksjbdrs. Further, the GRANTEE will also receive all applicable forms for administration of project with GRANTEE's copy of fully executed PROJECT AGREEMENT. DEP Agreement No. F6004, Page 1 of 10 DEP 55-231 (01/05) 4. The GRANTEE shall construct, or cause to be constructed, certain public outdoor recreation facilities and improvements consisting of the following PROJECT ELEMENTS which may be modified by the DEPARTMENT if GRANTEE shows good cause: Playground, picnic pavilion, bocce court, hiking trail, restroom, parking lighting and other related support facilities. 5. The DEPARTMENT shall pay, on a reimbursement basis, to the GRANTEE, funds not to exceed $200,000.00 which will pay the DEPARTMENT's share of the cost of the PROJECT. DEPARTMENT funding is based upon the following: DEPARTMENT Amount: $200,000.00 50% GRANTEE Match: $200,000.00 50% Type of Match: Cash/In-Kind Services and/or Land Value 6. The PROJECT reimbursement request shall include all documentation required by the DEPARTMENT for a proper pre-audit and post-audit review. Within sixty (60) days after receipt of the final request, the DEPARTMENT's Grant Manager shall review the completion documentation and payment request from the GRANTEE for the PROJECT. If the documentation is sufficient and meets the requirements of the Florida Recreation Development Assistance Program Completion Documentation Form, DEP Form FPS-A036, referenced in s. 620- 5.058(6)(g), the DEPARTMENT will approve the request for payment. 7. In addition to the invoicing requirements contained in the paragraph above, the Department will periodically request proof of a transaction (such as invoice, payroll register) to evaluate the appropriateness of costs to the PROJECT AGREEMENT pursuant to State guidelines (including cost allocation guidelines), as appropriate. When requested, this information must be provided within 30 calendar days of the date of such request. The GRANTEE may also be required to submit a cost allocation plan to the Department in support of its multipliers (overhead, indirect, general administrative costs, and fringe benefits). All bills for amounts due under this Agreement shall be submitted in detail sufficient for a proper pre-audit and post-audit thereof. State guidelines for allowable costs can be found in the Department of Financial Services' Reference Guide for State Expenditures at http://www.dbfstate.fl.us/aadir/reference guide. 8. The GRANTEE agrees to comply with the Division of Recreation and Parks' Grant and Contract Accountability Procedure, hereinafter called the PROCEDURE and incorporated into this PROJECT AGREEMENT by reference as if fully set forth herein. All purchases of goods and services for accomplishment of the PROJECT shall be secured in accordance with the GRANTEE's procurement procedures. Expenses representing the PROJECT costs, including the required matching contribution, shall be reported to the DEPARTMENT and summarized on certification forms provided in the PROCEDURE. The DEPARTMENT and GRANTEE agree to use the PROCEDURE guidelines for accounting for FRDAP funds disbursed for the DEP Agreement No. F6004, Page 2 of 10 DEP 55-231 (01/05) PROJECT. The parties further agree that the principles for determining the eligible costs, supporting documentation and minimum reporting requirements of the PROCEDURE shall be used. 9. Allowable indirect costs as defined in the PROCEDURE shall not exceed 15% of the GRANTEE's eligible wages and salaries, unless approved in advance as described herein. Indirect costs that exceed 15% must be approved in advance in writing by the DEPARTMENT to be considered eligible PROJECT expenses. 10. It is understood by the parties that the amount of this PROJECT AGREEMENT may be reduced should the Governor's Office declare a revenue shortfall and assess a mandatory reserve. Should a shortfall be declared, the amount of this PROJECT AGREEMENT may be reduced by the amount deemed appropriate by the DEPARTMENT. 11. A. The State of Florida's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature. The parties hereto understand that this Agreement is not a commitment of future appropriations. B. The GRANTEE understands that the funds supporting this Agreement are subject to certification forward approval by the Governor's Office on June 30th each year. The GRANTEE understands and agrees that if the Governor's Office does not approve the DEPARTMENT's request to certify the funds forward, the GRANTEE will not be eligible for reimbursement after the reversion of said funds. 12. All monies expended by the GRANTEE for the purpose contained herein shall be subject to pre-audit review and approval by the State of Florida Chief Financial Officer in accordance with section 17.03(2), Florida Statutes. 13. PROJECT funds may be reimbursed for eligible Preagreement Expenses (as defined in s. 62D-5.054(34) of the RULE) incurred by GRANTEE prior to execution of this PROJECT AGREEMENT in accordance with s. 620-5.055(9) of the RULE. The DEPARTMENT and the GRANTEE fully understand and agree that there shall be no reimbursement of PROJECT funds by the DEPARTMENT for any expenditure made prior to the execution of this PROJECT AGREEMENT with the exception of those expenditures which meet the requirements of the foregoing sections of the RULE. 14. Prior to commencement of PROJECT development, the GRANTEE shall submit the documentation required by the Florida Recreation Development Assistance Program Development Project Pre-reimbursement/Commencement Documentation Form, DEP Form FPS-A034, referenced in s. 62D-5.058(7)(c) of the RULE, to the DEPARTMENT. Upon determining that the documentation DEP Agreement No. F6004, Page 3 of 10 DEP 55-231 (01/05) complies with the RULE, the DEPARTMENT will give written notice to GRANTEE to commence the development and approve the request for payment. 15. The GRANTEE shall obtain all required local, state and federal permits and approvals prior to commencement of project construction and shall certify that it has done so to the DEPARTMENT by completing the Project Permitting Certification, FPS-A035, referenced in s. 62D-5.058(7)(c)1 of the RULE. 16. This PROJECT AGREEMENT shall become effective upon execution and the GRANTFF shall comDlete construction of all PROJECT ELEMENTS on or before -1-)0 '~oI DAT6 \. .~reinafter referred to as the PROJECT completion date), at which time all payment requests and completion documentation will be due to the DEPARTMENT. The GRANTEE understands that if the Governor's Office does not approve the DEPARTMENT's request to certify the funds forward on June 30th of each year, the GRANTEE will not be eligible for reimbursement after the reversion of said funds or the denial of the certification forward, whichever is earlier. 17. Project completion means the project is open and available for use by the public. Project must be designated complete prior to release of final reimbursement. See Rule 62D-5.054(41). 18. The GRANTEE shall retain all records supporting PROJECT costs for five (5) years after the fiscal year in which the final PROJECT payment was released by the DEPARTMENT or until final resolution of matters resulting from any litigation, claim or audit that started prior to the expiration of the five-year retention period. The DEPARTMENT, State Auditor General, State Chief Financial Officer and other agencies or entities with jurisdiction shall have the right to inspect and audit the GRANTEE's records for said PROJECT during the PROJECT and within the retention period. 19. In addition to the provisions contained in the paragraph above, the GRANTEE shall comply with the applicable provisions contained in Attachment 1. A revised copy of Attachment 1, Exhibit-1, must be provided to the GRANTEE with each amendment which authorizes a funding increase or decrease. The revised Exhibit-1 shall summarize the funding sources supporting the PROJECT AGREEMENT for purposes of assisting the GRANTEE in complying with the requirements of Attachment 1. If the GRANTEE fails to receive a revised copy of Attachment 1, Exhibit-1, the GRANTEE shall notify the Department's FRDAP Grants Administrator at (850) 245-2501 to request a copy of the updated information. 20. Following receipt of an audit report identifying any reimbursement due the DEPARTMENT for the GRANTEE's non- compliance with this PROJECT AGREEMENT, the GRANTEE will be allowed a maximum of thirty (30) days to submit additional pertinent documentation to offset the amount identified as DEP Agreement No. F6004, Page 4 of 10 DEP 55-231 (01/05) being due to the DEPARTMENT. The DEPARTMENT, following a review of the documentation submitted by the GRANTEE, will inform the GRANTEE of the final reimbursement due the DEPARTMENT. 21. The GRANTEE, as an independent contractor and not an agent, representative, or employee of the DEPARTMENT, agrees to carry adequate liability and other appropriate forms of insurance. The DEPARTMENT shall have no liability except as specifically provided in this PROJECT AGREEMENT. 22. To the extent required by law, the GRANTEE will be self-insured against, or will secure and maintain during the life of this PROJECT AGREEMENT, Workers' Compensation Insurance for all of his employees connected with the work of this project and, in case any work is subcontracted, the GRANTEE shall require the subcontractor to provide Workers' Compensation Insurance for all of the subcontractor's employees unless such employees are covered by the protection afforded by the GRANTEE. Such self-insurance program or insurance coverage shall comply fully with the Florida Workers' Compensation law. In case any class of employees engaged in hazardous work under this Agreement is not protected under Workers' Compensation statutes, the GRANTEE shall provide, and cause each subcontractor to provide, adequate insurance satisfactory to the DEPARTMENT, for the protection of its employees not otherwise protected. 23. The purchase of non-expendable equipment is not authorized under the terms of this Agreement. 24. For the purpose of this PROJECT AGREEMENT, the DEPARTMENT's Grant Manager shall be responsible for ensuring performance of its terms and conditions and shall approve all reimbursement requests prior to payment. The GRANTEE's Grant Manager, identified in paragraph 25, or successor, shall act on behalf of the GRANTEE relative to the provisions of this PROJECT AGREEMENT. The GRANTEE, shall submit to the DEPARTMENT signed PROJECT status reports every January 5th, May 5th, and September 5th of each year summarizing the work accomplished, problems encountered, percentage of completion, and other information which may be requested by the DEPARTMENT. Photographs to reflect the construction work accomplished shall be submitted when the DEPARTMENT requests them. 25. Any and all notices required by this PROJECT AGREEMENT shall be deemed sufficient if delivered or sent by United States Postal Service to the parties at the following addresses: DEP Agreement No. F6004, Page 5 of 10 DEP 55-231 (01/05) GRANTEE's Grant Manager DEPARTMENT's Grant Manager Mr. Wally Majors Recreation & Parks Director 100 E. Boynton Beach Boulevard Boynton Beach, FL 33435 A. Diane Langston Florida Department of Environmental Protection 3900 Commonwealth Blvd., MS585 Tallahassee, Florida 32399-3000 26. Prior to final reimbursement, the GRANTEE must erect a permanent information sign on the PROJECT site which credits PROJECT funding or a portion thereof, to the Florida Department of Environmental Protection and the Florida Recreation Development Assistance Program. 27. The DEPARTMENT has the right to inspect the PROJECT and any and all records related thereto at any reasonable time. 28. This PROJECT AGREEMENT may be unilaterally canceled by the DEPARTMENT for refusal by the GRANTEE to allow public access to all documents, papers, letters, or other material made or received by the GRANTEE in conjunction with this PROJECT AGREEMENT unless the records are exempt under Section 24(a) of Article I of the State Constitution and Section 119.07(1), Florida Statutes. 29. Prior to the closing of the PROJECT, the DEPARTMENT shall have the right to demand a refund, either in whole or in part, of the FRDAP funds provided to the GRANTEE for non-compliance with the material terms of this PROJECT AGREEMENT. The GRANTEE, upon such written notification from the DEPARTMENT, shall refund, and shall forthwith pay to the DEPARTMENT, the amount of money demanded by the DEPARTMENT. Interest on any refund shall begin the date that the GRANTEE was informed that a refund was required until refund and interest are paid to the DEPARTMENT. 30. The GRANTEE shall comply with all federal, state and local regulations, rules and ordinances in developing this PROJECT. The GRANTEE acknowledges that this requirement includes compliance with all federal, state and local health and safety rules and regulations including all applicable building codes. The GRANTEE further agrees to include the requirements of this paragraph in all subcontracts made to perform this PROJECT AGREEMENT. 31. The GRANTEE may subcontract work under this Agreement without the prior written consent of the DEPARTMENT'S Grant Manager. The GRANTEE agrees to be responsible for the fulfillment of all work elements included in any subcontract. It is understood and agreed by the GRANTEE that the DEPARTMENT shall not be liable to any subcontractor for any expenses or liabilities incurred under the subcontract and that the GRANTEE shall be solely DEP Agreement No. F6004, Page 6 of 10 DEP 55-231 (01/05) liable to the subcontractor for all expenses and liabilities incurred under the subcontract. 32. Land owned by the GRANTEE, which is developed or acquired with FRDAP funds, shall be dedicated in perpetuity as an outdoor recreation site by the GRANTEE for the use and benefit of the public as stated in section 620-5.059(1) of the RULE. Land under control other than by ownership of the GRANTEE, such as by lease, shall be dedicated as an outdoor recreation area for the use and benefit of the public for a minimum period of twenty-five (25) years from the completion date set forth in the PROJECT completion certificate. All dedications must be recorded in the county property records by the owner, or by the GRANTEE if the owner has given GRANTEE authority to do so. Such PROJECT shall be open at reasonable times and shall be managed in a safe and attractive manner appropriate for public use. 33. Failure to comply with the provisions of the RULE or the terms and conditions of this PROJECT AGREEMENT will result in cancellation of the PROJECT AGREEMENT by the DEPARTMENT. The DEPARTMENT shall give the GRANTEE in violation of the RULE or this PROJECT AGREEMENT a notice in writing of the particular violations stating a reasonable time to comply. Failure to comply within the time period stated in the written notice shall result in cancellation of the PROJECT AGREEMENT and shall result in the imposition of the terms in Paragraph 29. 34. In the event of conflict in the proVIsIons of the RULE, the PROJECT AGREEMENT and the Project Application, the provisions of the Rule shall control over this PROJECT AGREEMENT and this PROJECT AGREEMENT shall control over the Project Application documents. 35. If the DEPARTMENT determines that site control is not sufficient under the RULE, the DEPARTMENT shall give the GRANTEE a notice in writing and a reasonable time to comply. If the deficiency is not corrected within the time specified in the notice, the DEPARTMENT shall cancel this PROJECT AGREEMENT. 36. Pursuant to section 216.347, Florida Statutes, the GRANTEE is prohibited from spending FRDAP funds for the purpose of lobbying the legislature, the judicial branch, or a state agency. 37. A. No person on the grounds of race, creed, color, national origin, age, sex, marital status or disability, shall be excluded from participation in; be denied the proceeds or benefits of; or be otherwise subjected to discrimination in performance of this PROJECT AGREEMENT. B. An entity or affiliate who has been placed on the discriminatory vendor list may not submit a bid on a contract to provide goods or services to a DEP Agreement No. F6004, Page 7 of 10 DEP 55-231 (01/05) public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not award or perform work as a contractor, supplier, subcontractor, or consultant under contract with any public entity, and may not transact business with any public entity. The Florida Department of Management Services is responsible for maintaining the discriminatory vendor list and intends to post the list on its website. Questions regarding the discriminatory vendor list may be directed to the Florida Department of Management Services, Office of Supplier Diversity at (850) 487-0915. 38. Each party hereto agrees that it shall be solely responsible for the wrongful acts of its employees and agents. However, nothing contained herein shall constitute a waiver by either party of its sovereign immunity or the provisions of section 768.28, Florida Statutes. 39. The employment of unauthorized aliens by any GRANTEE is considered a violation of Section 27 4A( e) of the Immigration and Nationality Act. If the GRANTEE knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this Agreement. The GRANTEE shall be responsible for including this provision in all subcontracts issued as a result of this Agreement. 40. A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not perform work as a grantee, contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in s. 287.017, Florida Statutes, for Category Two, for a period of 36 months from the date of being placed on the convicted vendor list. 41 . The PROJECT AGREEMENT has been delivered in the State of Florida and shall be construed in accordance with the laws of Florida. Wherever possible, each provision of this PROJECT AGREEMENT shall be interpreted in such manner as to be effective and valid under applicable Florida law, but if any provision of this PROJECT AGREEMENT shall be prohibited or invalid under applicable Florida law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this PROJECT AGREEMENT. Any action hereon or in connection herewith shall be brought in Leon County, Florida unless prohibited by applicable law. 42. No delay or failure to exercise any right, power or remedy accruing to either party upon breach or default by either party under this PROJECT AGREEMENT shall impair any such right, power or remedy of either party; nor shall such delay or failure be construed as a waiver of any such breach or default, or any similar breach or default thereafter. DEP Agreement No. F6004, Page 8 of 10 DEP 55-231 (01/05) 43. This PROJECT AGREEMENT is not intended nor shall it be construed as granting any rights, privileges or interest to any third party without mutual written agreement of the parties hereto. 44. This PROJECT AGREEMENT is an exclusive contract and may not be assigned in whole or in part without the written approval of the DEPARTMENT. 45. This PROJECT AGREEMENT represents the entire agreement of the parties. Any alterations, variations, changes, modifications or waivers of provisions of this PROJECT AGREEMENT shall only be valid when they have been reduced to writing, duly executed by each of the parties hereto, and attached to the original of this PROJECT AGREEMENT. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK DEP Agreement No. F6004, Page 9 of 10 DEP 55-231 (01/05) IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed on the day and year last written below. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION CITY OF BOYNTON BEACH By: f)'J ..:::0) <; \C:ll'~ Division Director (or Designee) Division of Recreation and Parks By: Printed Name: Title: -LJo I\J:J(D D- ~, I eo Date Date Address: Office of Information and Recreation Services Division of Recreation and Parks 3900 Commonwealth Boulevard Mail Station 585 Tallahassee, Florida 32399-3000 Address: 100 E. Boynton Beach Boulevard Boynton Beach, FL 33435 tl ,tJ~,~~ DEP Grant Manager Grantee Attorney Approved as to Form and Legality: This form has been pre-approved as to form and legality by Suzanne Brantley, Assistant General Counsel, on January 24, 2005 for use for one year. List of attachments/exhibits included as part of this Agreement: Specify Type Letter/ Number Description (include number of pages) Attachment 1 Special Audit Requirements (5 PaQes) DEP Agreement No. F6004, Page 10 of 10 DEP 55-231 (01/05) A TT ACHMENT 1 SPECIAL AUDIT REQUIREMENTS The administration of resources awarded by the Department of Environmental Protection (which may he referred to as the "Department", "DEP", "FDEP" or "Grantor", or other name in the contract/agreement) to the recipient (which may be referred to as the "Contractor", Grantee" or other name in the contract/agreement) may be subject to audits and/or monitoring by the Department of Environmental Protection, as described in this attachment. MONITORING In addition to reviews of audits conducted in accordance with OMB Circular A-133 and Section 2]5.97, F.S., as revised (see "AUDITS" below), monitoring procedures may include, but not be limited to, on-site visits by Department staff, limited scope audits as defined by OMB Circular A-]33, as revised, and/or other procedures. By entering into this Agreement, the recipient agrees to comply and cooperate with any monitoring procedures/processes deemed appropriate by the Department of Environmental Protection. In the event the Department of Environmental Protection determines that a limited scope audit of the recipient is appropriate, the recipient agrees to comply with any additional instructions provided by the Department to the recipient regarding such audit. The recipient further agrees to comply and cooperate with any inspections, reviews, investigations, or audits deemed necessary by the Chief Financial Officer or Auditor General. AUDITS PART I: FEDERALLY FUNDED This part is applicable if the recipient is a State or local government or a non-profit organization as dermed in OMB Circular A-133, as revised. l. In the event that the recipient expends $500,000 or more in Federal awards in its fiscal year, the recipient must have a single or program-specific audit conducted in accordance with the provisions of OMB Circular A-133, as revised. EXHIBIT I to this Agreement indicates Federal funds awarded through the Department of Environmental Protection by this Agreement. In determining the Federal awards expended in its fiscal year, the recipient shall consider all sources of Federal awards, including Federal resources received from the Department of Environmental Protection. The determination of amounts of Federal awards expended should be in accordance with the guidelines established by OMB Circular A-133, as revised. An audit of the recipient conducted by the Auditor General in accordance with the provisions ofOMB Circular A-]33, as revised, will meet the requirements of this part. 2. In connection with the audit requirements addressed in Part I, paragraph I., the recipient shall fulfill the requirements relative to auditee responsibilities as provided in Subpart C of OMB Circular A-133, as revised. 3. If the recipient expends less than $500,000 in Federal awards in its fiscal year, an audit conducted in accordance with the provisions of OMB Circular A-133, as revised, is not required. In the event that the recipient expends less than $500,000 in Federal awards in its fiscal year and elects to have an audit conducted in accordance with the provisions of OMB Circular A-133, as revised, the cost of the audit must be paid from non-Federal resources (i.e., the cost of such an audit must be paid from recipient resources obtained from other than Federal entities). 4. The recipient may access information regarding the Catalog of Federal Domestic Assistance (CFDA) via the internet at http://l2.46.245.173/cfdalcfda.html. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK DEP Agreement No.F6004, Attachment 1, Page 1 of 5 DEP 55-215 (09/04) PART II: STATE FUNDED This part is applicable ifthe recipient is a nonstate entity as defined by Section 215 .97(2)(l), Florida Statutes. 1. In the event that the recipient expends a total amount of State fmancial assistance equal to or in excess of $300,000 in any fiscal year of such recipient ($500,000 for fiscal years ending on or after September 30, 2004), the recipient must have a State single or project-specific audit for such fiscal year in accordance with Section 215.97, Florida Statutes; applicable rules of the Executive Office of the Governor and the Chief Financial Officer; and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General. EXHIBIT 1 to this Agreement indicates State financial assistance awarded through the Department of Environmental Protection by this Agreement. In determining the State financial assistance expended in its fiscal year, the recipient shall consider all sources of State financial assistance, including State fmancial assistance received from the Department of Environmental Protection, other state agencies, and other nonstate entities. State fmancial assistance does not include Federal direct or pass-through awards and resources received by a nons tate entity for Federal program matching requirements. 2. In connection with the audit requirements addressed in Part II, paragraph 1, the recipient shall ensure that the audit complies with the requirements of Section 215.97(7), Florida Statutes. This includes submission of a fmancial reporting package as defmed by Section 215.97(2)( d), Florida Statutes, and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General. 3. If the recipient expends less than $300,000 in State fmancial assistance in its fiscal year ($500,000 for fiscal years ending on or after September 30, 2004), an audit conducted in accordance with the provisions of Section 215.97, Florida Statutes, is not required. In the event that the recipient expends less than $300,000 in State financial assistance in its fiscal year ($500,000 for fiscal years ending on or after September 30, 2004) and elects to have an audit conducted in accordance with the provisions of Section 215.97, Florida Statutes, the cost of the audit must be paid from the non-State entity's resources (i.e., the cost of such an audit must be paid from the recipient's resources obtained from other than State entities). 4. For infonnation regarding the Florida Catalog of State Financial Assistance (CSFA), a recipient should access the Florida Single Audit Act website located at http://state.fl.us/fsaa/catalog or the Governor's Office of Policy . and Budget website located at http://www.myflorida.comlmvtlorida/governmentlcontacts/opbOffice.html for assistance. In addition to the above websites, the following websites may be accessed for information: Legislature's Website http://www.leg.state.flus/, Governor's Website http://www.mvtlorida.coml, Department of Financial Services' Website http://www.dbf.state.fl.us/and the Auditor General's Website http://www.state.fl.us/audgen. PART III: OTHER AUDIT REQUIREMENTS (NOTE: This part would be used to specifY any additional audit requirements imposed by the State awarding entity that are solely a matter of that State awarding entity's policy (i.e., the audit is not required by Federal or State laws and is not in conflict with other Federal or State audit requirements). Pursuant to Section 215.97(7)(m), Florida Statutes, State agencies may conduct or arrange for audits of State financial assistance that are in addition to audits conducted in accordance with Section 2J 5.97, Florida Statutes. In such an event, the State awarding agency must arrange for funding the full cost of such additional audits.} PART IV: REPORT SUBMISSION I. Copies of reporting packages for audits conducted in accordance with OMB Circular A-133, as revised, and required by PART I of this Agreement shall be submitted, when required by Section .320 (d), OMB Circular A-l33, as revised, by or on behalf of the recipient directly to each oftbe following: REMAINDER OF PAGE INTENTIONALLY LEFT BLANK DEP Agreement No. F6004, Attachment 1, Page 2 of 5 DEP 55-215 (09/04) A. The Department of Environmental Protection at the following address: Audit Director Florida Department of Environmental Protection Office of the Inspector General, MS 40 2600 Blair Stone Road Tallahassee, Florida 32399-2400 B. The Federal Audit Clearinghouse designated in OMB Circular A-133, as revised (the number of copies required by Sections .320 (d)(l) and (2), OMB Circular A-133, as revised, should be submitted to the Federal Audit Clearinghouse), at the following address: Federal Audit Clearinghouse Bureau of the Census 1201 East 10th Street Jeffersonville, IN 47132 C. Other Federal agencies and pass-through entities in accordance with Sections .320 (e) and (f), OMB Circular A-133, as revised. 2. Pursuant to Section .320(f), OMB Circular A-133, as revised, the recipient shall submit a copy of the reporting package described in Section .320(c), OMB Circular A-133, as revised, and any management letters issued by the auditor, to the Department of Environmental Protection the following address: Audit Director Florida Department of Environmental Protection Office of the Inspector General, MS 40 2600 Blair Stone Road Tallahassee, Florida 32399-2400 3. Copies offmancial reporting packages required by PART II of this Agreement shall be submitted by or on behalf of the recipient directly to each of the following: A. The Department of Environmental Protection at the following address: Audit Director Florida Department of Environmental Protection Office of the Inspector General, MS 40 2600 Blair Stone Road Tallahassee, Florida 32399-2400 B. The Auditor General's Office at the following address: State of Florida Auditor General Room 401, Claude Pepper Building III West Madison Street Tallahassee, Florida 32399-1450 4. Copies of reports or management letters required by PART III of this Agreement shall be submitted by or on behalf of the recipient directly to the Department of Environmental Protection at the following address: Audit Director Florida Department of Environmental Protection Office of the Inspector General, MS 40 2600 Blair Stone Road Tallahassee, Florida 32399-2400 DEP Agreement No. F6004, Attachment 1, Page 3 of 5 DEP 55-215 (09/04) 5. Any reports, management letters, or other information required to be submitted to the Department of Environmental Protection pursuant to this Agreement shall be submitted timely in accordance with OMB Circular A-133, Florida Statutes, or Chapters 10.550 (local govenunental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General, as applicable. 6. Recipients, when submitting financial reporting packages to the Department of Environmental Protection for audits done in accordance with OMB Circular A-133, or Chapters 10.550 (local govenunental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General, should indicate the date that the reporting package was delivered to the recipient in correspondence accompanying the reporting package. PART V: RECORD RETENTION The recipient shall retain sufficient records demonstrating its compliance with the terms of this Agreement for a period of 5 years from the date the audit report is issued, and shall allow the Department of Environmental Protection, or its designee, Chief Financial Officer, or Auditor General access to such records upon request. The recipient shall ensure that audit working papers are made available to the Department of Environmental Protection, or its designee, Chief Financial Officer, or Auditor General upon request for a period of 3 years from the date the audit report is issued, unless extended in writing by the Department of Environmental Protection. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK DEP Agreement No. F6004, Attachment 1, Page 4 of 5 DEP 55.215 (09/04) ,....., I E-< ...... ~ ~ r..:l Cl ~ ~ a ....l ....l a ~ ~ :r:: f-; ~ a f- (/) ...... 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CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office [g] August 2, 2005 July 18, 2005 (Noon.) 0 October 5, 2005 September 19,2005 (Noon) 0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon) 0 September 6, 2005 August 15,2005 (Noon) 0 November 1, 2005 October 17,2005 (Noon) 0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005 October 31,2005 (Noon) 0 Administrative 0 Development Plans NATURE OF 0 Consent Agenda 0 New Business AGENDA ITEM 0 Public Hearing [g] Legal 0 Bids 0 Unfinished Business 0 Announcement 0 Presentation 0 City Manager's Report RECOMMENDATION: Approve a series resolution providing for the issuance of not exceeding $16,000,000 aggregate principal amount of Utility System Revenue Refunding Bonds, Series 2005; providing a method for fixing and determining the principal amount, interest rates, maturity dates, redemption provisions and other details of said bonds. EXPLANATION: RBC Dain Rauscher, the City's Financial Advisor, has recommended that the Series 1996 Utility System Revenue Bonds be refinanced because interest rates are favorable and would result in debt service savings to the City. This Resolution authorizes the City Manager to take all steps necessary to complete this refinancing transaction. FISCAL IMPACT: It is estimated that the refinancing of the Series 1996 Utility Revenue Bonds will result in debt service savings to the City of approximately $600,000 due to lower interest rates on the new bonds. ALTERNATIVES: Do not refinance the Series 1996 Utility Revenue Bonds. .&~:L~mre Financial Services Department Name S:\BULLETJN\FORMS\AGENDA ITEM REQUEST FORM.DOC RESOLUTION NO. R05-_ A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE OF NOT EXCEEDING $16,000,000 AGGREGATE PRINCIPAL AMOUNT OF UTILITY SYSTEM REVENUE REFUNDING BONDS, SERIES 2005; PROVIDING A METHOD FOR FIXING AND DETERMINING THE PRINCIPAL AMOUNT, INTEREST RATES, MATURITY DATES, REDEMPTION PROVISIONS AND OTHER DETAILS OF SAID BONDS; AUTHORIZING THE AWARD THE SALE OF THE BONDS TO BEAR, STEARNS & CO. INe.; FINDING NECESSITY FORA NEGOTIATED SALE OF SUCH BONDS; PROVIDING A METHOD FOR APPROVING THE FORM OF AND AUTHORIZING THE USE OF A PRELIMINARY OFFICIAL STATEMENT AND AUTHORIZING THE PREPARATION, APPROVAL AND EXECUTION OF A FINAL OFFICIAL STATEMENT IN CONNECTION WITH SUCH BONDS; AUTHORIZING THE EXECUTION OF A BOND PURCHASE CONTRACT AND A BOND REGISTRAR AGREEMENT; AUTHORIZING THE REDEMPTION OF A PORTION OF THE CITY'S UTILITY SYSTEM REVENUE BONDS, SERIES 1996; PROVIDING A METHOD FOR APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF AN ESCROW DEPOSIT AGREEMENT; PROVIDING FOR CERTAIN CONTINUING DISCLOSURE OBLIGATIONS OF THE CITY; PROVIDING FOR THE APPLICATION OF THE PROCEEDS OF SAID BONDS AND CERTAIN OTHER MONEYS; AUTHORIZING THE PURCHASE OF A BOND INSURANCE POLICY AND RESERVE SURETY BOND AND MAKING CERTAIN COVENANTS IN CONNECTION THEREWITH; DESIGNATING THE BOND REGISTRAR FOR SAID BONDS; CONTAINING CERTAIN AUTHORIZATIONS AND OTHER PROVISIONS; AND PROVIDING AN EFFECTNE DATE. WHEREAS, the City of Boynton Beach, Florida (the "City") is authorized by the Constitution and laws of the State of Florida, including the City's Charter and Chapter 166, Florida Statutes, to issue revenue bonds ofthe City payable from Pledged Revenues (as defined in the Bond Resolution hereinafter defined mentioned) for certain purposes; and WHEREAS, pursuantto Resolution No. R 92-96 adopted by the City Commission ofthe City (the "City Commission") on June 16, 1992, as amended (the "Bond Resolution") obligations of the City may be issued and may be secured by a lien upon and pledge of certain "Pledged Revenues" as defined in and to the extent set forth in the Bond Resolution; and WHEREAS, the City desires to issue Bonds (the "Series 2005 Bonds") under the Bond Resolution to provide funds, together with available funds of the City for the redemption prior to maturity of the City's Utility System Revenue Bonds, Series 1996 (the" 1996 Bonds") maturing on and after November 1, 2007 (the "Refunded Bonds") and to pay certain costs of issuing such Series 2005 Bonds; and WHEREAS, prior to the issuance of the Series 2005 Bonds the conditions set forth in Section 210 of the Bond Resolution shall be satisfied; and WHEREAS, the City Commission has determined that the sale of such Series 2005 Bonds through negotiation with the Original Purchaser (hereinafter defined) is in the best interest of the City; and WHEREAS, the City Commission has received from Bear, Steams & Co. Inc. (the "Original Purchaser") a form of a Bond Purchase Contract by and between the City and the Original Purchaser whereby the Original Purchaser would agree to purchase the Series 2005 Bonds, and the City Commission has determined that the authorization of the acceptance of such proposal pursuant to the terms set forth in Section 6 hereof is in the best interests of the City and will effect the purposes set forth in the Bond Resolution; and WHEREAS, it is necessary and desirable to approve the form and use of a Preliminary Official Statement and to approve the preparation and execution of a Final Official Statement in connection with the issuance of such Series 2005 Bonds; and WHEREAS, it is necessary and desirable to specify a method for determining the dates, the interest rates, maturity dates and redemption provisions for such Series 2005 Bonds and to appoint The Bank of New York Trust Company, N.A. as Bond Registrar for such Series 2005 Bonds; and WHEREAS, the City has received a commitment from Ambac Assurance Corporation to issue its financial guaranty insurance policy insuring the payment of the principal of and interest on the Series 2005 Bonds and it is necessary and desirable to accept such commitment; and WHEREAS, the City has received a commitment from Ambac Assurance Corporation to issue its surety bond to satisfy the Reserve Account Requirement for the Series 2005 Bonds and it is necessary and desirable to accept such commitment; and WHEREAS, the City desires to approve the form and use of an escrow deposit agreement to provide for payment of the Refunded Bonds and to appoint The Bank of New York Trust Company, N.A. as escrow agent thereunder; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA: Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the provisions of the Charter of the City of Boynton Beach, Florida, the Constitution of the State of Florida, including, but not limited to, Article VITI, Section 2 thereof, and other applicable provisions of law, including Chapter 166, Florida Statutes, and the Bond Resolution. 2 Section 2. Definitions. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Bond Resolution. The following terms, when used in this Resolution or in the Bond Resolution, as amended hereby, shall have the following meamngs: "Authorized Representative" means the Mayor or Vice-Mayor, and in the absence or inability to act of the Mayor or Vice-Mayor, the City Manager or any other City Commissioner (the absence or inability to act of the Mayor of Vice-Mayor as to any particular action being conclusively established by the taking of such action by the City Manager or other City Commissioner). "Business Day" shall mean any day other than a Saturday, Sunday or other day on which the Bond Registrar is lawfully and temporarily closed or a day on which the New York Stock Exchange is lawfully and temporarily closed. "Closing Date" shall mean the date on which the Series 2005 Bonds are issued and delivered by the City and paid for by the Original Purchaser. "Interest Payment Date" shall mean May 1 and November 1 of each year, commencing November 1,2005. Section 3. Authorization of Bonds. Bonds are hereby authorized to be issued pursuant to this Resolution and Section 210 of the Bond Resolution in the aggregate principal amount of not to exceed $16,000,000. The Bonds hereby authorized shall be known as "Utility System Revenue Refunding Bonds, Series 2005" (the "Series 2005 Bonds"). Prior to the issuance of the Series 2005 Bonds the conditions of Section 210 of the Bond Resolution shall be satisfied. The Series 2005 Bonds are being issued for the principal purpose of providing funds, together with funds held in the Reserve Account and Bond Service Subaccounts under the Bond Resolution in respect of the Refunded Bonds, to defease and to redeem the Refunded Bonds prior to maturity. Proceeds of the Series 2005 Bonds may be used to pay costs associated with issuing the Series 2005 Bonds and defeasing the Refunded Bonds. The Series 2005 Bonds may not be issued unless the issuance of the Series 2005 Bonds and the refunding of the Refunded Bonds produces net present value debt service savings for the City, calculated as of the date of delivery of the Series 2005 Bonds using the arbitrage yield on the Series 2005 Bonds as the discount rate, of at least the greater of (i) $300,000.00 and (ii) 3% of the principal amount of the Refunded Bonds. Section 4. Terms of the Series 2005 Bonds. (a) Form of Bonds. The Series 2005 Bonds shall be substantially in the form of the Bonds set forth in the Bond Resolution, with such changes as may be necessary or appropriate to conform to the provisions of this Resolution and the terms of the Series 2005 Bonds set forth herein as may be approved by the officers of the City executing the Series 2005 Bonds, such execution to be conclusive evidence of such approval. (b) Amounts. Maturities. Redemption Provisions and Interest Rates. The Series 2005 Bonds will consist of such aggregate principal amount of Current Interest Serial Bonds and such 3 aggregate principal amount of Current Interest Term Bonds as shall be determined by the Authorized Representative as hereinafter provided. The Series 2005 Bonds shall be issued in the denomination of$5,000 and integral multiples thereof, shall be issued in registered form, shall be numbered from R -1 upwards, shall be dated their date of initial issuance and delivery, and shall bear interest from such date, payable on the Interest Payments Dates. The Series 2005 Bonds shall be issued on such date, in the aggregate principal amount, not in excess of $16,000,000, shall bear interest at the rates per annum, computed on the basis of a 360-dayyear consisting oftwelve 3 O-day months, not in excess ofthe maximum legal rate, and shall mature on November 1 of the years and shall have such redemption provisions, all as set forth in a certificate executed by the Authorized Representative at or before the issuance of the Series 2005 Bonds, provided however that the final maturity of the Series 2005 Bonds shall not be after November 1,2020. Principal of the Series 2005 Bonds shall be payable only upon presentation and surrender of such Bonds at the principal office of the Bond Registrar. Interest on the Series 2005 Bonds shall be paid by check or draft, or at the option of any registered owner of not less than $1,000,000 in principal amount of the Series 2005 Bonds, exercised in writing delivered to the Bond Registrar prior to the Regular Record Date or Special Record Date, by wire transfer to an account in the United States designated by such registered owner, mailed or wired by the Bond Registrar to the registered owners of the Series 2005 Bonds as shown on the registration books kept by the Bond Registrar on the Regular Record Date or the Special Record Date. (c) Reserve Account Deposit Requirement. The Reserve Account Requirement for the Series 2005 Bonds shall be an amount equal to the lesser of (i) 10% of the aggregate stated principal amount of the Series 2005 Bonds Outstanding, (ii) the maximum amount of principal and interest scheduled to become due on the Outstanding Series 2005 Bonds in the current or any succeeding Bond Year, or (iii) 125% of the average annual debt service on the Series 2005 Bonds (calculated on a Bond Year basis at the time of issuance only). If the Series 2005 Bonds have more than a de- minimis amount of original issue discount or premium (as defmed in Treas. Reg. 91.148-1 (b)), then the issue price (as defined in said regulation) of the Series 2005 Bonds (net of pre-issuance accrued interest) shall be used to measure the aforesaid 10% limitation in lieu of the stated principal amount of the Series 2005 Bonds. The Series 2005 Reserve Subaccount, which is hereby ordered created, shall be funded in an amount equal to the Reserve Account Requirement for the Series 2005 Bonds at the time of initial issuance and delivery of the Series 2005 Bonds, and in the event any deficiency is created in the Series 2005 Reserve Subaccount, the Reserve Account Deposit Requirement for such Series shall be, in each month, an amount equal to at least one twenty-fourth (1/24) of the amount of such deficiency. Section 5. Amendments to Bond Resolution. The amendments to the Bond Resolution set forth in this Section 5 shall be effective upon, and only upon the issuance of the Series 2005 Bonds. (a) Section 101 of the Bond Resolution is amended by the addition thereto of two new definitions as follows: 4 "2005 Bond Insurance Policy" shall mean the financial guaranty insurance policy issued by the 2005 Bond Insurer that guarantees payment of principal of and interest on the Series 2005 Bonds. "2005 Bond Insurer" shall mean Ambac Assurance Corporation, a Wisconsin- domiciled insurance corporation, or any successor thereto. (b) A new Section 719 is added to the Bond Resolution to provide as follows: "Section 719. Provisions concerning 2005 Bond Insurer. For so long as the 2005 Bond Insurance Policy shall be outstanding, notwithstanding any provision to the contrary contained herein, the following provisions shall apply with respect to the Series 2005 Bonds: (A) "Ambac Assurance" shall mean Ambac Assurance Corporation, a Wisconsin-domiciled stock insurance company. (B) "Municipal Bond Insurance Policy" shall mean the municipal bond insurance policy issued by Ambac Assurance insuring the payment when due of the principal of and interest on the Series 2005 Bonds as provided therein. (C) Any provision of this Resolution expressly recognizing or granting rights in or to Ambac Assurance may not be amended in any manner which affects the rights of Ambac Assurance hereunder without the prior written consent of Ambac Assurance. Ambac Assurance reserves the right to charge the City a fee for any consent or amendment to this Resolution while the Municipal Bond Insurance Policy is outstanding. (D) Unless otherwise provided in this Section, Ambac Assurance's consent shall be required in addition to Bondholder consent, when required, for the following purposes: (i) execution and delivery of any amendment or change to this Resolution, (ii) removal of the Bond Registrar and selection and appointment of any successors, and (iii) initiation or approval of any action not described in (i) or (ii) above which requires Bondholder consent. (E) Any reorganization or liquidation plan with respect to the City must be acceptable to Ambac Assurance. In the event of any reorganization or liquidation, Ambac Assurance shall have the right to vote on behalf of all Bondholders who hold Ambac Assurance- insured Series 2005 Bonds absent a default by Ambac Assurance under the Municipal Bond Insurance Policy insuring the Series 2005 Bonds. 5 (F) Anything in this Resolution to the contrary notwithstanding, upon the occurrence and continuance of an Event of Default, Ambac Assurance shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders under this Resolution, including, without limitation: (i) the right to accelerate the principal of the Series 2005 Bonds as described in this Resolution and (ii) the right to annul any declaration of acceleration, and Ambac Assurance shall be entitled to approve all waivers of events of default. (G) Subject to Section 802 hereof, upon the occurrence of an Event of Default, Ambac Assurance may, by written notice to City, declare the principal of the Series 2005 Bonds to be immediately due and payable. (H) While the Municipal Bond Insurance Policy is in effect, the City shall furnish, at the City's expense, to Ambac Assurance, to the attention of the Surveillance Department: (a) as soon as practicable after the filing thereof, a copy of any financial statement of the City and a copy of any audit and annual report of the City; (b) a copy of any notice to be given to the registered owners of the Series 2005 Bonds, including, without limitation, notice of any redemption of or defeasance of Series 2005 Bonds, and any certificate rendered pursuant to this Resolution relating to the security for the Series 2005 Bonds; and (c) such additional information as it may reasonably request. (1) The City shall notifY Ambac Assurance, to the attention of the General Counsel's office, of any failure of the City to provide any notices, certificates, or other documentation required to be provided by the City hereby. (J) The City will permit Ambac Assurance to discuss the affairs, finances and accounts of the City or any information Ambac Assurance may reasonably request regarding the security for the Series 2005 Bonds with appropriate officers of the City. The City will permit Ambac Assurance to have access to and to make copies of all books and records relating to the Series 2005 Bonds at any reasonable time. (K) Ambac Assurance shall have the right to direct an accounting at the City's expense, and the City's failure to comply with such direction within thirty (30) days after receipt of written notice of the 6 direction from Ambac Assurance shall be deemed a default hereunder; provided, however, that if compliance cannot occur within such period, then such period will be extended so long as compliance is begun within such period and diligently pursued, but only if such extension would not materially adversely affect the interests of any registered owner of the Series 2005 Bonds. (L) Notwithstanding any other provision of this Resolution, the Bond Registrar or the City shall immediately notify Ambac Assurance, to the attention of the General Counsel's office, if at any time there are insufficient moneys to make any payments of principal and/or interest on the Series 2005 Bonds as required, and immediately upon the occurrence of any Event of Default hereunder. (M) To the extent that the City enters into a continuing disclosure agreement with respect to the Series 2005 Bonds, Ambac Assurance shall be included as a party to be notified. (N) Notwithstanding anything herein to the contrary, in the event that the principal and/or interest due on the Series 2005 Bonds shall be paid by Ambac Assurance pursuant to the Municipal Bond Insurance Policy, the Series 2005 Bonds shall remain Outstanding for all purposes, shall not be defeased or otherwise satisfied and shall not be considered paid by the City, and the assignment and pledge of the amounts pledged to repayment of the Series 2005 Bonds and all covenants, agreements and other obligations of the City to the Bondholders shall continue to exist and shall run to the benefit of Ambac Assurance, and Ambac Assurance shall be subrogated to the rights of such Bondholders. (0) Ambac Assurance will allow only the following obligations to be used for defeasance purposes: (1) cash fully insured by the Federal Deposit Insurance Corporation or otherwise collateralized with obligations described in (2) below, or (2) direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury of the United States of America. (P) Nothing in this Resolution expressed or implied is intended or shall be construed to confer upon, or to give to, any person or entity, other than the City, Ambac Assurance, the Bond Registrar and the registered owners of the Series 2005 Bonds, any right, remedy or claim under or by reason of this Resolution or any covenant, condition or stipulation hereof, and all covenants, stipulations, promises and agreements in this Resolution contained by or on behalf of the City shall be for the sole and exclusive benefit of the City, 7 Ambac Assurance, the Bond Registrar and the registered owners of the Series 2005 Bonds. (Q) To the extent that this Resolution confers upon or gives or grants to Ambac Assurance any right, remedy or claim under or by reason of this Resolution, Ambac Assurance is hereby explicitly recognized as being a third-party beneficiary hereunder and may enforce any such right, remedy or claim conferred, given or granted hereunder. (R)(i) Upon the written request of Ambac Assurance, the City shall take steps to remove any Bond Registrar which shall have violated any provision hereof; (ii) the City will provide Ambac Assurance written notice if any Bond Registrar shall resign; (iii) every Bond Registrar appointed under this Resolution shall be a financial institution in good standing located in or incorporated under the laws of the State, duly authorized to exercise trust powers and subject to examination by federal or State authorities, having a reported capital and surplus of not less than $75,000,000 and not objected to by Ambac Assurance; (iv) any successor Bond Registrar shall not be appointed unless Ambac Assurance approves such successor in writing; (v) notwithstanding any other provisions of this Resolution in determining whether the rights of the bondholders will be adversely affected by any action taken pursuant to the terms and provisions of this Resolution, the Bond Registrar shall consider the affect on the Bondholders as if there were not municipal bond insurance policy; and (vi) notwithstanding any other provision of this Resolution, no removal, resignation or termination of the Bond Registrar shall take effect until a successor, acceptable to Ambac Assurance shall be appointed (S) "Authorized Investments" shall mean the investments described in the Resolution, but only to the extent also described below and only to the extent the same shall be pennitted from time to time by applicable laws of the State: (a) direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury of the United States of America, including Federal Securities; (b) obligations of any of the following federal agencies which obligations represent the full faith and credit of the United States of America: Export-Import Bank; Rural Economic Community Development Administration; U.S. Maritime Administration; Small Business Administration; U.S. Department of 8 Housing & Urban Development; Federal Housing Administration; and Federal Financing Bank; (c) direct obligations of any of the following federal agencies which obligations are not fully guaranteed by the full faith and credit of the United States of America: senior debt obligations rated "AAA" by S&P and "Aaa" by Moody's issued by the Federal National Mortgage Association or the Fannie Mae; obligations of the Resolution Funding Corporation; senior debt obligations of the Federal Home Loan Bank System; senior debt obligations of other government sponsored agencies approved by Ambac Assurance; (d) U.S. Dollar denominated deposit accounts, federal funds and banker's acceptances with domestic commercial banks which have a rating on their short term certificates of deposit on the date of purchase of , A-I' or 'A-l+' by S&P and 'P-l' by Moody's and maturing no more than 360 days after the date of purchase (ratings on holding companies are not considered as the rating of the issuing bank); (e) commercial paper which is rated at the time of purchase in the single highest classification, "A-1+" by S&P and "P-I" by Moody's and which matures not more than 270 days after the date of purchase; (f) money market funds rated 'AAAm' or 'Aaam-G' or better by S&P; (g) units of participation in the Local Government Surplus Funds Trust Fund established pursuant to Part IV, Chapter 218, Florida Statutes, or any similar common trust fund which is established pursuant to State law as a legal depository of public moneys; (h) shares of beneficial interest in the Florida Municipal Investment Trust created pursuant to Section 163.01, Florida Statutes; and (i) other forms of investments approved in writing by Ambac Assurance with notice to S&P. (T) The value of all investments shall be determined when required as follows: (i) as to investments not described in (ii) and (iii) below, at the fair market value based on accepted industry standrads and from accepted industry providers; (ii) as to certificates of deposit and bankers acceptances, the face amount thereof, plus 9 accrued interest; and (iii) as to any investment not specified above, the value thereof established by prior agreement between the City and Ambac Assurance. (0) As long as the Municipal Bond Insurance Policy shall be in full force and effect, the City and any Bond Registrar agree to comply with the following provisions: (a) At least one (1) day prior to all Interest Payment Dates the City or Bond Registrar will determine whether there will be sufficient funds in the funds and accounts established pursuant to the Resolution to pay the principal of or interest on the Series 2005 Bonds on such Interest Payment Date. If the City or Bond Registrar determines that there will be insufficient funds in such funds or accounts, the City or Bond Registrar shall so notifY Ambac Assurance. Such notice shall specify the amount of the anticipated deficiency, the Series 2005 Bonds to which such deficiency is applicable and whether such Series 2005 Bonds will be deficient as to principal or interest, or both. If the City or Bond Registrar has not so notified Ambac Assurance at least one (1) day prior to an Interest Payment Date, Ambac Assurance will make payments of principal or interest due on the Series 2005 Bonds on or before the first (1st) day next following the date on which Ambac Assurance shall have received notice of nonpayment from the City or Bond Registrar. (b) The City or Bond Registrar shall, after giving notice to Ambac Assurance as provided in (a) above, make available to Ambac Assurance and, at Ambac Assurance's direction, to The Bank of New York, in New York, New York, as insurance trustee for Ambac Assurance, or any successor insurance trustee (the "Insurance Trustee"), the registration books of the City maintained by the Registrar and all records relating to the funds and accounts maintained under this Resolution. (c) The City or Bond Registrar shall provide Ambac Assurance and the Insurance Trustee with a list of registered owners of Series 2005 Bonds entitled to receive principal or interest payments from Ambac Assurance under the terms of the MWlicipal Bond Insurance Policy, and shall make arrangements with the Insurance Trustee (i) to mail checks or drafts to the registered owners of Series 2005 Bonds entitled to receive full or partial interest payments from Ambac Assurance and (ii) to pay principal upon Series 2005 Bonds surrendered to the Insurance Trustee by the owners of Series 2005 Bonds entitled to receive full or partial principal payments from Ambac Assurance. 10 (d) The City or Bond Registrar shall at the time it provides notice to Ambac Assurance pursuant to (a) above, notify owners of Series 2005 Bonds entitled to receive the payment of principal or interest thereon from Ambac Assurance (i) as to the fact of such entitlement, (ii) that Ambac Assurance will remit to them all or a part of the interest payments next coming due upon proof of owner entitlement to interest payments and delivery to the Insurance Trustee, in form satisfactory to the Insurance Trustee, of an appropriate assignment of the Owner's right to payment, (iii) that should they be entitled to receive full payment of principal from Ambac's Assurance, they must surrender their Series 2005 Bonds (along with an appropriate instrument of assignment in form satisfactory to the Insurance Trustee to permit ownership of such Series 2005 Bonds to be registered in the name of Ambac Assurance) for payment to the Insurance Trustee, and not the City or Bond Registrar, and (iv) that should they be entitled to receive partial payment of principal from Ambac Assurance, they must surrender their Series 2005 Bonds for payment thereon first to the Bond Registrar who shall note on such Series 2005 Bonds the portion of the principal paid by the Bond Registrar and then, along with an appropriate instrument of assignment in form satisfactory to the Insurance Trustee, to the Insurance Trustee, which will then pay the unpaid portion of principal. (e) In the event that the City or Bond Registrar has notice that any payment of principal of or interest on a Bond which has become Due for Payment (as defined in the Municipal Bond Insurance Policy) and which is made to an Owner by or on behalf of the City has been deemed a preferential transfer and theretofore recovered from its Owner pursuant to the United States Bankruptcy Code by a trustee in bankruptcy in accordance with the final, nonappealable order of a court having competent jurisdiction, the City or Bond Registrar shall, at the time Ambac Assurance is notified pursuant to (a) above, notify all Owners that in the event that any Owner's payment is so recovered, such Owner will be entitled to payment from Ambac Assurance to the extent of such recovery if sufficient funds are not otherwise available, and the City or Bond Registrar shall furnish to Ambac Assurance its records evidencing the payments of principal of and interest on the Series 2005 Bonds which have been made by the City or Bond Registrar and subsequently recovered from Owners and the dates on which such payments were made. (f) In addition to those rights granted Ambac Assurance under this Resolution, Ambac Assurance shall, to the extent it makes payment of principal of or interest on Series 2005 Bonds, become 11 subrogated to the rights of the recipients of such payments in accordance with the terms of the Municipal Bond Insurance Policy, and to evidence such subrogation (i) in the case of subrogation as to claims for past due interest, the Bond Registrar shall note Ambac Assurance's rights as subrogee on the registration books of the City maintained by the Bond Registrar upon receipt from Ambac Assurance of proof of the payment of interest thereon to the Owners of the Series 2005 Bonds, and (ii) in the case of subrogation as to claims for past due principal, the Bond Registrar shall note Ambac Assurance's rights as subrogee on the registration books of the City maintained by the Bond Registrar, ifany, upon surrender of the Series 2005 Bonds by the Owners thereof together with proof of the payment of principal thereof (V) Unless the 2005 Bond Insurer shall be in default of its obligations pursuant to the 2005 Bond Insurance Policy, the 2005 Bond Insurer shall be deemed to be the Holder of the 2005 Bonds for purposes of consenting to amendments to the Bond Resolution, and the provisions of Section 1002 in respect of such amendments, other than the amendments described in clauses (a) through (e) of the first sentence of Section 1002 of the Bond Resolution. (c) A new Section 720 is added to the Bond Resolution to provide as follows: "Section 720. Reserve Surety Provisions. Notwithstanding any provision to the contrary contained herein, the following provisions shall apply while Ambac Assurance has issued a surety bond in order to fund all or a portion of the Reserve Account Requirement for any Series 2005 Bonds: (A) "Ambac Assurance" shall mean Ambac Assurance Corporation, a Wisconsin-domiciled stock insurance company. (B) "Surety Bond" shall mean the surety bond issued by Ambac Assurance guaranteeing certain payments into the Series 2005 Reserve Subaccount with respect to the Series 2005 Bonds as provided therein and subject to the limitations set forth therein. (C) Any provision of this Resolution expressly recognizing or granting rights in or to Ambac Assurance may not be amended in any manner which affects the rights of Ambac Assurance hereunder without the prior written consent of Ambac Assurance. (D) Unless otherwise provided in this Section, Ambac Assurance's consent shall be required in addition to Bondholder consent, when required, for the following purposes: (i) execution and delivery of 12 any amendment or change to this Resolution, (ii) removal ofthe Bond Registrar and (iii) initiation or approval of any action not described in (i) or (ii) above which requires Bondholder consent. (E) While the Surety Bond is in effect, the City shall furnish to Ambac Assurance, to the attention of the Surveillance Department: (a) as soon as practicable after the filing thereof, a copy of any financial statement of the City and a copy of any audit and annual report of the City; (b) a copy of any notice to be given to the registered owners of the Series 2005 Bonds, including, without limitation, notice of any redemption of or defeasance of Series 2005 Bonds, and any certificate rendered pursuant to this Resolution relating to the security for the Series 2005 Bonds; and (c) such additional information as it may reasonably request. (F) The City will permit Ambac Assurance to discuss the affairs, finances and accounts of the City or any information Ambac Assurance may reasonably request regarding the security for the Series 2005 Bonds with appropriate officers of the City. The City will permit Ambac Assurance to have access to and to make copies of all books and records relating to the Series 2005 Bonds at any reasonable time. (G) Notwithstanding any other provision of this Resolution, the Bond Registrar or the City shall immediately notifY Ambac Assurance, to the attention of the General Counsel's office, if at any time there are insufficient moneys to make any payments of principal and/or interest on the Series 2005 Bonds as required, and immediately upon the occurrence of any Event of Default hereunder. (H) To the extent that the City enters into a continuing disclosure agreement with respect to the Series 2005 Bonds, Ambac Assurance shall be included as a party to be notified. (I) As long as the Surety Bond shall be in full force and effect, the City and any Bond Registrar agree to comply with the following proVISIOns: (i) In the event and to the extent that moneys on deposit in the Bond Service Subaccount and/or Redemption Subaccount, plus all amounts on deposit in and credited to the Series 2005 Reserve Subaccount in excess of the amount of the Surety Bond, are insufficient to pay the amount of the principal and interest coming due, then upon the later 13 of (x) one (1) day after receipt by the General Counsel of Ambac Assurance of a demand for payment in the form attached to the Surety Bond as Attachment 1 (the "Demand for Payment"), duly executed by the Bond Registrar certifying that payment due under this Resolution has not been made to the Bond Registrar; or (y) the payment date of Obligations as specified in the Demand for Payment presented by the Bond Registrar to the General Counsel of Ambac Assurance, Ambac Assurance will make a deposit of funds in an account with the Bond Registrar or its successor, in New York, New York, sufficient for the payment to the Bond Registrar of amounts which are then due to the Bond Registrar under the Resolution (as specified in the Demand for Payment) up to but not in excess of the Surety Bond Coverage, as defined in the Surety Bond; provided, however, that in the event that the amount on deposit in or credited to the Series 2005 Reserve Subaccount of the Reserve Account, in addition to the amount available under the Surety Bond, includes amounts available under a letter of credit, insurance policy, surety bond, or other such funding instrument (the "Additional Funding Instrument"), draws on the Surety Bond and the Additional Funding Instrument shall be made on a pro rata basis to fund the insufficiency; (ii) the Bond Registrar shall, after submitting to Ambac Assurance the Demand for Payment as provided in (i) above, make available to Ambac Assurance all records relating to the funds and accounts maintained under this Resolution; (iii) the Bond Registrar shall, upon receipt of moneys received from the draw on the Surety Bond, as specified in the Demand for Payment, credit the subaccount of the Reserve Account to the extent of moneys received pursuant to such Demand; and (iv) the Series 2005 Reserve Subaccount shall be replenished in the following priority: (x) principal and interest on the Surety Bond and on any Additional Funding Instrument shall be paid first from available funds on a pro rata basis; (y) after all such amounts are paid in full, amounts necessary to fund the subaccount of the Reserve Account to the required level, after taking into account the amounts available under the Surety Bond and any Additional Funding Instrument, shall be deposited from the next available funds. (d) The defmition of "Renewal, Replacement and Improvement Account Requirement" contained in Section 1 0 1 of the Bond Resolution is amended to provide as follows, and such amendment shall be deemed incorporated into all Supplemental Resolutions adopted after the date hereof, so that it shall not be necessary to obtain the consent of the Holders of such Bonds to such amendment. However, such amendment shall not become effective until (i) the Outstanding principal amount of the City's Utility System Revenue Bonds, Series 1996 and Utility System Revenue Refunding Bonds, 14 Series 2002 constitutes less than a majority of the principal amount of all Outstanding Bonds, (ii) notice to the Holders of the Outstanding Series 1996 Bonds and Series 2002 Bonds shall have been given in accordance with Section 1002 of the Bond Resolution, and (iii) the requirements of Section 7l8(e) of the Bond Resolution (added by Section 5(b) of Resolution No. R01-l93) shall have been satisfied. As permitted by Section 1002 of the Bond Resolution, the Original Purchaser, by its purchase of the Series 2005 Bonds, consents to the following amendment of the definition of "Renewal, Replacement and Improvement Account Requirement." "Renewal, Replacement and Improvement Account Requirement" shall mean an amount equal to six percent of the Revenues for the preceding Fiscal Year or such greater or lesser amount as determined by the City Commission by resolution from time to time. Section 6. Approval of Sale of the Series 2005 Bonds. The City hereby determines that a negotiated sale of the Series 2005 Bonds is in the best interest of the City and the citizens and inhabitants of the City by reason of the volatility of the market for tax exempt bonds. Attached hereto as Exhibit "A" is a form of Bond Purchase Contract (the "Bond Purchase Contract"). The City approves the Bond Purchase Contract together with such changes thereto as are necessary to reflect the terms of the Series 2005 Bonds and to reflect the purchase price thereof, provided, that the underwriter's discount shall not exceed $7.00 per thousand dollars of principal amount of the Series 2005 Bonds, and with such other completions, additions and/or changes as shall be approved by the Authorized Representative, such approval to be conclusively established by such execution, and the Authorized Representative is hereby authorized and directed for and in the name of the City to execute and deliver the Bond Purchase Contract to the Original Purchaser. Prior to the execution of the Bond Purchase Contract, the Original Purchaser shall file with the City the disclosure statement required by Section 218.385, Florida Statutes, and the competitive bidding for the Series 2005 Bonds is hereby waived pursuant to the authority of Section 218.385(1), Florida Statutes. Section 7. Execution and Delivery ofthe Series 2005 Bonds. The Authorized Signatory and the City Clerk are hereby authorized and directed on behalf of the City to execute the Series 2005 Bonds as provided in the Bond Resolution and such officials are hereby authorized and directed upon the execution of the Series 2005 Bonds in the form and manner set forth herein and in the Bond Resolution to deliver the Series 2005 Bonds in the amount authorized to be issued hereunder to the Bond Registrar for authentication (upon the satisfaction of the conditions of Section 210 ofthe Bond Resolution) and delivery to or upon the order of the Original Purchaser upon payment of the purchase price set forth herein. Section 8. Application of Proceeds. Proceeds from the sale of the Series 2005 Bonds and any amounts available under the Bond Resolution as a result of the refunding and defeasance of the Refunded Bonds shall be applied for the purposes described herein as provided in a certificate executed by the Authorized Signatory at or prior to the issuance of the Series 2005 Bonds. Section 9. Bond Registrar. The City hereby appoints The Bank of New York Trust Company, N.A. as Bond Registrar with respect to the Series 2005 Bonds. The form of Bond Registrar Agreement attached hereto as Exhibit "B" is hereby approved and the Authorized Signatory is hereby authorized and directed for and in the name of the City to execute, and the City Clerk is 15 authorized to attest and apply the seal of the City to the Bond Registrar Agreement, with such changes, alterations and corrections thereto as shall be approved by the officials executing the same, such execution to constitute conclusive evidence of such approval. Section 10. Official Statement. The City hereby approves the form and content of, and authorizes the use by the Original Purchaser in marketing the Series 2005 Bonds, of a Preliminary Official Statement relating to the Series 2005 Bonds in the form of the document attached hereto as Exhibit "C," together with such other changes, alterations and corrections therein as may be approved by the Authorized Signatory, who is hereby authorized to approve the final form of the Preliminary Official Statement, such approval to be conclusively established by the execution by the Authorized Signatory of a certificate "deeming final" the Preliminary Official Statement for purposes of Securities and Exchange Commission Rule 15c2-l2, which execution is hereby authorized. The preparation of a final Official Statement for the Series 2005 Bonds, which shall be in substantially the form of the Preliminary Official Statement, changed to reflect the terms of the Series 2005 Bonds and with such other changes, alterations and corrections therein as may be approved by the Authorized Signatory, such approval to be conclusively established by such execution, is hereby authorized, and upon preparation thereofthe Authorized Signatory is authorized and directed for and in the name of the City to execute and deliver the Official Statement. Section 11. Authorization for Bond Insurance. The Authorized Signatory is authorized, but not obligated, to accept commitments from the 2005 Bond Insurer for the issuance of the 2005 Bond Insurance Policy and a Reserve Account Insurance Policy and to execute, on behalf of the Issuer, a Guaranty Agreement with respect to the Reserve Fund Insurance Policy. Section 12. Compliance with Tax Requirements. The City hereby covenants and agrees, for the benefit of the Bondholders from time to time of the Series 2005 Bonds, to comply with the requirements applicable to it contained in Section 103 and Part IV of Subchapter B of Chapter 1 of the Internal Revenue Code of 1986, as amended (the "Code") to the extent necessary to preserve the exclusion of interest on the Series 2005 Bonds from gross income for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the City covenants and agrees: (1) to pay to the United States of America from, to the extent legally available, the funds and sources of revenues pledged to the payment of the Series 2005 Bonds, and from any other legally available funds, at the times and to the extent required pursuant to Section 148( f) of the Code, the excess of the amount earned on all non- purpose investments (as defmed in Section 1 48(f)(6) of the Code) (other than investments attributed to an excess described in this sentence) over the amount which would have been earned if such non-purpose investments were invested at a rate equal to the yield on the Series 2005 Bonds, plus any income attributable to such excess (the "Rebate Amount"); (2) to maintain and retain all records pertaining to and to be responsible for making or causing to be made all determinations and calculations of the Rebate Amount and required payments of the Rebate Amount as shall be necessary to comply with the Code; 16 (3) to refrain from using proceeds from the Series 2005 Bonds in a manner that would cause the Bonds or any of them, to be classified as private activity bonds under Section 141(a) of the Code; and (4) to take or refrain from taking any action that would cause the Series 2005 Bonds, or any of them, to become arbitrage bonds under Section 1 03(b) and Section 148 of the Code. The City understands that the foregoing covenants impose continuing obligations on the City to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. Unless otherwise specified in the Certificate as to Arbitrage and Other Tax Matters delivered in connection with the issuance of the Series 2005 Bonds, the City shall designate a certified public accountant, Bond Counsel, or other professional consultant having the skill and expertise necessary (the "Rebate Analyst") to make any and all calculations required pursuant to this Section regarding the Rebate Amount. Such calculation shall be made in the manner and at such times as specified in the Code. The City shall engage and shall be responsible for paying the fees and expenses of the Rebate Analyst. Section 13. The Refunded Bonds and the Escrow Deposit Agreement. The redemption of the Refunded Bonds as shall be described in the executed Escrow Deposit Agreement is authorized and directed. The Escrow Deposit Agreement in the form attached hereto as Exhibit "D" is hereby approved, subject to such changes, insertions, omissions, and filling in of blanks therein as may be approved by the Authorized Signatory, such approval to be conclusively evidenced by the execution of the Escrow Deposit Agreement by the Authorized Signatory. The Authorized Signatory and the City Clerk are hereby authorized to execute and deliver the Escrow Deposit Agreement on behalf of the City. The Escrow Agent under the Escrow Deposit Agreement shall be The Bank of New York Trust Company, N.A.. The Authorized Signatory, Finance Director, Financial Advisor and Escrow Agent, or any of them, are hereby authorized to subscribe for the purchase of any United State Treasury Obligations -- State and Local Government Series to be purchased pursuant to the Escrow Deposit Agreement. Section 14. Continuing Disclosure. (a) Disclosure of Annual Information. The City agrees, in accordance with the provisions of Rule 15c2-12 in effect from time to time and applicable to the Series 2005 Bonds (the "Rule"), promulgated by the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, to provide, either directly or indirectly through a designated agent, to each nationally recognized municipal securities information repository ("NRMSIR") as designated and approved by the Commission and to the appropriate State of Florida information depository ("SID"), if any, operated or designated by the State, respectively, in accordance with the Rule, (i) within 180 days following the end of each Fiscal Year of the City, commencing with the Fiscal Year ending September 30, 2005 annual financial information and operating data concerning the Utility System, of the type included in the Official Statement, including operating revenues, debt service coverage by Net Revenues, rates and charges of the Utility System, summary of any capital 17 improvements plan, and information regarding permitted capacities and actual usage of capacities of the Utility System and financial statements (audited, or, if not available during such time period, unaudited) of the City and, (ii) if not submitted as part of such financial information and operating data, then, when available, audited financial statements for the City prepared in accordance with generally accepted accounting principles applicable to governmental entities from time to time. A copy of such annual financial information and operating data will be provided by the City to the Original Purchaser, the 2005 Bond Insurer and to the Bond Registrar for the Series 2005 Bonds as designated by the City from time to time. (The information required to be disclosed in this paragraph shall be hereinafter referred to as the "Annual Report.") (b) Disclosure of Material Events. The City agrees to provide either directly or indirectly through a designated agent, in a timely manner, to (i) each NRMSIR or to the Municipal Securities Rulemaking Board ("MSRB") and (ii) the SID, if any, notice of the occurrence of any of the following events with respect to the Series 2005 Bonds, if such event is material: (i) (ii) (iii) difficulties; (iv) difficulties; (v) (vi) 2005 Bonds; (vii) principal and interest payment delinquencies; non-payment related defaults; unscheduled draws on debt service reserves, if any, reflecting financial unscheduled draws on credit enhancements, if any, reflecting financial substitution of credit or liquidity providers, if any, or their failure to perform; adverse tax opinions or events affecting the tax-exempt status of the Series modifications to rights of the holders of the Series 2005 Bonds; (viii) bond calls of the Series 2005 Bonds (other than scheduled mandatory redemption) or any acceleration of the maturity thereof; (ix) defeasances (in whole or in part) of Series 2005 Bonds; Bonds; (x) release, substitution, or sale of property securing repayment of the Series 2005 (xi) rating changes; and (xii) any changes in the City's Fiscal Year. 18 (c) Notice of Failure. The City agrees to provide or cause to be provided, in a timely manner, to (i) each NRMSIR or the MSRB and (ii) the SID, if any, notice of a failure by the City to provide the Annual Report described in subsection (a) above on or prior to the date set forth therein. (d) Termination. The City reserves the right to terminate its obligation to provide the Annual Report and notices of material events, as set forth above, if and when the City no longer remains an obligated person with respect to the Series 2005 Bonds (within the meaning of the Rule). If the City believes such condition exists, the City will provide notice of such termination to the NRMSIR's, the MSRB and the SID. (e) Undertaking for Benefit of Holders and Beneficial Owners. The City agrees that its undertaking pursuant to the Rule described herein is intended to be for the benefit of the holders and beneficial owners of the Series 2005 Bonds and shall be enforceable by any holder or beneficial owner; provided that the right to enforce the provisions of this undertaking shall be limited to a right to obtain specific enforcement of the City's obligations hereunder and any failure by the City to comply with the provisions of this undertaking shall not be an event of default with respect to the Series 2005 Bonds under the Resolution. (f) Voluntary Disclosure Shall Not Bind City. Any voluntary inclusion by the City of information in its Annual Report of supplemental information that is not required by the Rule shall not expand the obligations of the City under the Rule and the City shall have no obligation to update such supplemental information or include it in any subsequent report. (g) Third Parties. The covenants described herein are solely for the benefit of the holders and beneficial owners of the Series 2005 Bonds and shall not create any rights in any other parties. (h) Amendment; Waiver. Notwithstanding any other provision of this Resolution, the City may amend the provisions of this Section and any such provision may be waived, provided that the following conditions are satisfied: (1) Ifthe amendment or waiver relates to the provisions of paragraphs ( a), (b), or (c) above, it may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature or status of the City or the type of business conducted by the City; (2) The undertaking, as amended or taking into account such waiver, would, in the opinion of nationally recognized bond counsel, have complied with the requirements of the Rule at the time of the original issuance of the Series 2005 Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; and (3) The amendment or waiver does not materially impair the interests of holders and beneficial owners as determined either by parties unaffiliated with the City or an obligated person, or by an approving vote of the holders of at least a majority in aggregate principal amount of the then outstanding Series 2005 Bonds pursuant to the terms of the Bond Resolution.r 19 In the event of any such amendment or waiver of a provision described above, the City shall describe such amendment or waiver in the next Annual Report, and shall include, as applicable, a narrative explanation of the reason for the amendment or waiver and its impact on the type (or, in the case of a change of accounting principles, on the presentation) of annual financial information or operating data being presented by the City. In addition, if the amendment or waiver relates to the accounting principles to be followed in preparing financial statements, (i) notice of such change shall be given in the same manner as set forth in subsection (b) and (ii) the Annual Report for the year in which the change is made must present a comparison (in narrative form and also, if feasible, in quantitative form) between the financial statements as prepared on the basis ofthe new accounting principles and those prepared on the basis of the former accounting principles. Section 15. Authorizations. The Authorized Signatory, the City Clerk and the Finance Director are hereby jointly and severally authorized to do all acts and things required of them by this Resolution, the Bond Resolution, the Escrow Deposit Agreement, the Bond Registrar Agreement or the Bond Purchase Contract, or desirable or consistent with the requirements hereof or thereof, for the full, punctual and complete performance of all terms, covenants and agreements contained in the Series 2005 Bonds, the Bond Resolution, this Resolution, the Escrow Deposit Agreement, the Bond Registrar Agreement and the Bond Purchase Contract, and to make any elections necessary or desirable in connection with the arbitrage provisions of Section 148 of the Code. Section 16. Business Days. In any case where the date of maturity of interest on or principal of the Series 2005 Bonds or the date fixed for redemption of any Series 2005 Bonds is not a Business Day, then payment of principal, premium, if any, or interest need not be made on such date but may be made on the next succeeding Business Day, with the same force and effect as if made on the date of maturity or the date fixed for redemption. Section 17. Resolution to Constitute a Contract. In consideration of the purchase and acceptance of the Series 2005 Bonds authorized to be issued hereunder by those who shall be the holders thereof from time to time, this Resolution shall constitute a contract between the City and such holders, and all covenants and agreements herein and in the Bond Resolution set forth to be performed by the City shall be for the equal benefit and security of all of the holders. Section 18. No Implied Beneficiary. With the exception of any rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Series 2005 Bonds is intended or shall be construed to give any person other than the City, the Original Purchaser, the 2005 Bond Insurer, the Escrow Agent, the Bond Registrar and the Owners, any legal or equitable right, remedy or claim under or with respect to this Resolution or the Bond Resolution or any covenants, conditions, and provisions herein contained; this Resolution and the Bond Resolution and all of the covenants, conditions and provisions hereof and thereof being intended to be and being for the sole and exclusive benefit of the City, the Original Purchaser, the 2005 Bond Insurer, the Escrow Agent, the Bond Registrar and the Owners. Section 19. Severability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not effect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatsoever. 20 Section 20. Repealer. All Resolutions or parts thereof of the City in conflict with the provisions herein contained or, to the extent of any such conflict, hereby superseded and repealed. 21 Section 21. Effective Date. This Resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED THIS 2ND DAY OF AUGUST, 2005. (SEAL) ATTEST: CITY OF BOYNTON BEACH, FLORIDA By: City Clerk By: Mayor Vice-Mayor Commissioner Commissioner Commissioner APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: City Attorney 22 EXHIBIT" A" Bond Purchase Contract CITY OF BOYNTON BEACH, FLORIDA $_,_,000 UTILITY SYSTEM REVENUE REFUNDING BONDS SERIES 2005 BOND PURCHASE CONTRACT _ _,2005 City of Boynton Beach, Florida 100 East Boynton Beach Blvd. Boynton Beach, Florida 33425 The undersigned, Bear, Steams & Co. Inc. (the "Underwriter"), offers to enter into this Bond Purchase Contract (the "Purchase Contract") with the City of Boynton Beach, Florida (the "City"), which, upon acceptance of this offer by the City, will be binding upon the City and upon the Underwriter. This offer is made subject to written acceptance hereof by the City at or before 11 :59 p.m., Eastern Daylight Savings Time on the date hereof and, if not so accepted, will be subject to withdrawal by the Underwriter upon notice delivered to the City at any time prior to the acceptance hereofby the City. I. Purchase and Sale. Upon the terms and conditions and in reliance on the representations, warranties, covenants and agreements set forth herein, the Underwriter hereby agrees to purchase from the City, and the City hereby agrees to sell and deliver to the Underwriter, all (but not less than all) of the $_ _,000 aggregate principal amount City of Boynton Beach, Florida Utility System Revenue Refunding Bonds, Series 2005 (the "Bonds"). The Bonds shall be dated the Closing Date (as hereinafter defined). The purchase price for the Bonds shall be $ (the par amount of the Bonds less an Underwriter's discount of $ and [plus][ minus] net original issue [premium][discount] of$ ). The Bonds shall be as described in, and shall be issued and secured under the provisions of Resolution No. R92-96 of the City Commission, as amended and supplemented, particularly as amended and supplemented by Resolution No. R05-_ adopted by the City Commission on_ _,2005 (collectively, the "Resolution"). The Bonds shall mature at the times and in the amounts and shall bear interest at the rates set forth in Appendix I hereto. The redemption provisions for the Bonds are set forth in Appendix I hereto. The information required by Sections 218.385(2),(3) and (6), Florida Statutes, to be provided to the City by the Underwriter is set forth in Appendix II hereto. 2. Delivery of Official Statements and Other Documents. (a) Prior to the date hereof, the City shall have provided to the Underwriter for its review the Preliminary Official Statement dated July _,2005 (the "Preliminary Official Statement") that the City deemed final as of its date, except for certain omissions in connection with the pricing of the Bonds as permitted by Rule 15c2- 12 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the "Rule"). The Underwriter has reviewed such Preliminary Official Statement prior to the execution of this Purchase Contract. (b) With its acceptance hereof, the City will deliver, at its expense, to the Underwriter within seven (7) business days of the date hereof (or within such shorter period as may be requested by the Underwriter in order to accompany any confirmation that requests payment from any customer to comply with Rule G-32 of the Municipal Securities Rulemaking Board) copies of a final Official Statement (the" Final Official Statement") (in such amount as may be mutually agreed upon), dated the date hereof, together with all supplements and amendments thereto, substantially in the form of the Preliminary Official Statement, with only such changes therein as shall have been accepted by the Underwriter, signed on behalf of the City by an Authorized Representative. It is understood that in undertaking to deliver the Final Official Statement pursuant to this paragraph, the City is not taking any responsibility for the accuracy or completeness of the information in the Final Official Statement concerning (the "Insurer") or The Depository Trust Company and its book-entry only system of registration of the Bonds. (c) The Underwriter shall give notice to the City on the date after which no participating underwriter, as such term is defined in the Rule, remains obligated to deliver Final Official Statements pursuant to paragraph (b)(4) of the Rule. (d) At Closing, the City shall deliver or cause to be delivered to the Underwriter copies of the Resolution, certified to by the City Clerk, all substantially in the form heretofore delivered to the Underwriter, with only such changes therein as agreed upon by the Underwriter. 3. Representation ofthe Underwriter as to Authority. ( a) The Underwriter is authorized to execute this Purchase Contract. (b) The Underwriter hereby represents that neither it nor any "person" or "affiliate" has been on the "convicted vendor list" during the past 36 months as all such terms are defined in Section 287.133, Florida Statutes. 4. Public Offering. The Underwriter agrees to make an offering of all the Bonds at not in excess ofthe initial public offering prices or lower than the yields set forth in Appendix I attached hereto. The Underwriter reserves the right to make concessions to dealers and to change such initial public offering prices or yields as the Underwriter reasonably deems necessary in connection with the marketing of the Bonds. The City hereby authorizes the Underwriter to use the Final Official Statement and the information contained therein in connection with the offering and sale of the Bonds and ratifies and confirms its authorization of the use by the Underwriter prior to the date hereof of the Preliminary Official Statement in connection with such offering and sale. 5. City's Representations, Warranties and Agreements. By its acceptance hereof, the City represents and warrants to and agrees with the Underwriter that, as of the date hereof: (a) The City is duly and validly existing as a municipal corporation. (b) The City has full legal right, power and authority to issue and sell the Bonds as contemplated by the Resolution and the Final Official Statement. ( c) The City has full legal right, power and authority to enter into this Purchase Contract and the Escrow Deposit Agreement (the "Escrow Agreement") between the City and The Bank of New York, as escrow agent (the "Escrow Agent") and to sell and deliver the Bonds to the 2 Underwriter as provided herein; by official action of the City taken prior to or concurrently with the acceptance hereof, the Resolution has been duly adopted in accordance with the Constitution and the laws of the State of Florida, including the charter of the City (collectively the "Act"); the Resolution is in full force and has not been rescinded; this Purchase Contract and the Escrow Agreement when executed by the City will be duly iluthorized and delivered and will constitute the legal, valid and binding obligations of the City enforceable in accordance with their terms, except as the enforcement thereof may be affected by bankruptcy, insolvency, or other laws or the application by a court of equitable principles generally affecting creditors' rights and except further as the enforcement of indemnification provisions of the Purchase Contract and the Escrow Agreement may each be limited by federal or state securities laws or public policy considerations; and the City has duly authorized and approved the consummation by it of all other transactions contemplated by the Resolution, the Final Official Statement, the Escrow Agreement and this Purchase Contract to have been performed or consummated at or prior to the Closing Date. (d) The execution and delivery of the Bonds, this Purchase Contract and the Escrow Agreement and the adoption and implementation of the Resolution, and compliance with the obligations on the City's part contained herein and therein, will not conflict with or constitute a material breach of or material default under the Act or any federal or Florida constitutional provision, law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or to which the City or any of its properties or other assets is otherwise subject, nor will any such execution, delivery, adoption, implementation or compliance result in the creation or imposition of any material lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or other assets of the City under the terms of any such provision, law, regulation, document or instrument, except as provided or permitted by the Bonds and the Resolution. ( e) All approvals, consents and orders of any govemmental authority, legislative body, board, agency or commission having jurisdiction which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by the City of its obligations under this Purchase Contract, the Escrow Agreement, the Resolution and the Bonds have been, or prior to the Closing Date will have been, duly obtained; provided, however, that this representation and warranty does not apply to such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds, or to such official action by the City which the Resolution contemplates is to be taken from time to time after the Closing. (f) The Bonds when issued, registered and delivered in accordance with the Resolution and sold to the Underwriter as provided herein and in accordance with the provisions of the Resolution, will be valid and legally enforceable obligations of the City in accordance with their terms and the terms of the Resolution, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws or the application by a court of equitable principles; and the Resolution will provide, for the benefit of the holders from time to time of the Bonds, a legally valid and irrevocable lien upon and pledge ofthe Pledged Revenues, as defined and set forth in the Resolution, on a parity with the City's Utility System Revenue Refunding Bonds, Series 2002. 3 (g) The information contained in the Preliminary Official Statement (as of its dated date) and, as of its date, the Final Official Statement pertaining to the City was and is true and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact which is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (h) The City has not been in default at any time on or after December 31, 1975, as to principal or interest with respect to any obligation issued or guaranteed by the City. (i) Except as described in the Preliminary Official Statement or the Final Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity before or by any court, governmental agency or public board or body, pending or, to the best knowledge of the City, threatened: (1) Which may affect the existence of the City or the titles of its officers to their respective offices; (2) Which may affect or which seeks to prohibit, restrain or enjoin the sale, issuance or delivery of the Bonds, or the collection or disbursement of the Pledged Revenues to pay the principal of, premium, if any, and interest on the Bonds, and to make other payments under the Resolution; (3) Which in any way contests or affects the validity or enforceability of the Bonds, the Resolution, this Purchase Contract or any of them; (4) Which would cause the interest on the Bonds to be included in the federal gross income of the holders of the Bonds; or (5) Which contests in any way the completeness or accuracy of the Preliminary Official Statement or the Final Official Statement or which contests the powers of the City or any authority or proceedings for the issuance, sale or delivery of the Bonds, or the due adoption of the Resolution or the execution and delivery of this Purchase Contract or any of them; nor, to the best knowledge of the City, is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Bonds, the Resolution, the Escrow Agreement or any of them. (j) The City will furnish such information, execute such instruments and take such other action not inconsistent with law in cooperation with the Underwriter as the Underwriter may reasonably request in order (i) to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate, and (ii) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualifications in effect so long as required for the distribution of the Bonds; provided that the City shall not be obligated to qualify to do business or to take any action that would subject it to general service of process in any state where it is not now so subject. (k) If between the date of this Purchase Contract and the date which is the earlier of (i) 4 90 days from the end of the "underwriting period", as determined in the Rule, (an event the Underwriter is required to notify the City about pursuant to paragraph 2( c) above), or (ii) the time when the Final Official Statement is available to any person from a nationally recognized municipal securities information repository, but in no case less than 25 days following the end of the underwriting period, any event shall occur which would or might cause the information contained in the Final Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light ofthe circumstances under which they were made, not misleading, the City shall notify the Underwriter thereof, and if in the reasonable opinion of the Underwriter such event requires the preparation and publication of a supplement or amendment to the Final Official Statement, the City shall cooperate with the Underwriter in supplementing or amending the Final Official Statement, the printing of which will be at the City's expense, in such form and manner and at such time or times as may be reasonably called for by the Underwriter. (I) The City covenants to comply with the requirements of the Internal Revenue Code of 1986, as amended (the "Code") in order to maintain the exclusion from gross income of the interest on the Bonds for purposes of federal income taxation. These requirements include, but are not limited to, provisions which prescribe yield and other limits within which the proceeds of the Bonds and other amounts are to be invested and require that certain investment earnings on the foregoing must be rebated on a periodic basis to the Treasury Department of the United States. (m) Except as disclosed in the Official Statement, the City has not been in default at any time as to principal or interest with respect to any obligations issued or guaranteed by the City. (n) The City has not failed to comply with any prior undertakings to provide continuing disclosure pursuant to Rule 15c2-12(b)( 5) under the Securities Exchange Act of 1934, as amended. 6. Closing. At 10:00 am., prevailing time in the City, on ,2005 (such date herein called the "Closing Date"), or at such later time or on such later date as may be mutually agreed upon by the City and the Underwriter, the City shall, subject to the terms and conditions hereof, deliver the Bonds, bearing proper CUSIP numbers, in the definitive form of one fully registered typewritten Bond for each stated maturity of the Bonds, duly executed and authenticated. In addition, at such time, on the Closing Date, the City shall also deliver, to the Underwriter, subject to the terms and conditions hereof, the other documents hereinafter mentioned. Subject to the terms and conditions hereof, the Underwriter shall accept delivery ofthe Bonds and pay the purchase price of the Bonds as set forth in paragraph 1 hereof in Federal Funds to the order of the City (such delivery of and payment for the Bonds herein called the "Closing"). The Closing shall occur at City Hall or such other place as shall have been mutually agreed upon by the City and the Underwriter. The Bonds shall be registered in the name of Cede & Co., or such other name as the Underwriter shall request, and will be made available for inspection and checking by representatives of the Underwriter at such place as shall be mutually agreed upon, not later than the business day prior to the Closing Date. 7. Closing Conditions. The Underwriter is entering into this Purchase Contract in reliance upon the representations, warranties and agreements of the City contained herein, and in reliance upon the representations, warranties and agreements to be contained in the documents and 5 instruments to be delivered at the Closing, and upon the performance of the covenants and agreements herein, as of the date hereof and as of the Closing Date. Accordingly, the Underwriter's obligations under this Purchase Contract to purchase, to accept delivery of and to pay for the Bonds shall be conditioned upon the performance of the covenants and agreements to be performed hereunder and under such other documents and instruments to be delivered at or prior to the Closing Date, and shall also be subject to the following additional conditions: (a) The representations and warranties of the City contained herein shall be true, complete and correct on the date hereof and on and as ofthe Closing Date, as if made on the Closing Date. (b) At the date of execution hereof and at the Closing Date, the Resolution shall have been duly approved and adopted by the City, shall be in full force and effect, and shall not have been amended, modified or supplemented, except in connection with the issuance of Additional Bonds in compliance therewith and except to the extent to which the Underwriter shall have given its prior written consent, and there shall have been taken in connection therewith and in connection with the issuance of the Bonds all such action as, in the opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Bond Counsel and Disclosure Counsel for the City, shall be necessary and appropriate in connection with the transactions contemplated hereby. (c) At the Closing there will be no pending or threatened litigation or proceeding of any nature seeking to restrain or enjoin the issuance, sale or delivery of the Bonds, or the pledge or application of the Pledged Revenues (other than as disclosed in the Final Official Statement) to pay the principal of and interest on the Bonds or in any way contesting or affecting the validity or enforceability of the Bonds, the Resolution, the Escrow Agreement and this Purchase Contract or contesting in any way the proceedings of the City taken with respect thereto, or contesting in anyway the due existence or powers of the City or the title of any of the members of the City Commission or officials of the City to their respective offices, or if such litigation does exist, the Underwriter will receive an opinion of Josias, Goren, Cherof, Doody & Ezrol, P.A. City Attorneys, that any such litigation is without merit. (d) Except as described in the Final Official Statement, there shall have been no material adverse change in the financial condition of the City since September 30,2004. ( e) At the Closing, the Underwriter shall receive the following documents, each dated as of the Closing Date: (i) The opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Bond Counsel, dated the Closing Date, in substantially the form attached to the Final Official Statement as Appendix D as well as (x) an opinion to the effect that the Bonds are "Additional Bonds" on a parity with the City's other outstanding Bonds and (y) that the Refunded Bonds (as defined in the Final Official Statement) have been legally defeased.; (ii) An opinion of Bond Counsel, addressed to the Underwriter, to the effect that (i) the Underwriter may rely upon the opinion referred to in paragraph (i) above as though addressed to it, (ii) the information contained in the Final Official Statement under the headings "Introduction," 6 "Purpose of the 2005 Bonds," "Description ofthe 2005 Bonds," "Security for the 2005 Bonds" and "Covenants Concerning Ongoing Disclosure," (other than any information thereunder relating to The Depository Trust Company and its book-entry system 0 f registration and apart from any engineering, financial and statistical data contained therein as to which no opinion or belief needs to be expressed), insofar as such information purports to be the descriptions or summaries of the Resolution and the Bonds, constitutes fair and accurate statements of the matters set forth in such documents, and (iii) the information contained in the Final Official Statement under the heading "Tax Exemption" is correct in all material respects. (iii) An opinion, dated the Closing Date and addressed to the Underwriter, of Goren, Cherof, Doody & Ezrol, P.A. City Attorneys to the effect that (i) this Purchase Contract and the Escrow Agreement have each been duly authorized, executed and delivered by the City and each constitutes a legal, valid, and binding agreement of the City in accordance with their terms except to the extent that the enforceability of the rights and remedies set forth therein may be limited by bankruptcy, insolvency or other laws or the application by a court of equitable principles and except further as the enforcement of indemnification provisions of this Purchase Contract may be limited by federal or state securities laws or public policy considerations; (ii) the City has authorized, executed and delivered the Final Official Statement; (iii) the information in the Final Official Statement as to legal matters relating to the City, the Bonds, the Escrow Agreement and the Resolution is correct in all material respects and does not omit any statement which, in their opinion, should be included or referred to therein and, in addition, such counsel shall state that, based upon their participation in the preparation of the Final Official Statement as City Attorneys and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Final Official Statement (except to the extent expressly set forth in this Subparagraph (iii)), as of the Closing nothing has come to their attention causing them to believe that (A) the Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except for the financial and statistical information contained in the Final Official Statement as to all of which no view shall be expressed), or (B) the Final Official Statement as of the Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except as aforesaid), (it is understood that in undertaking to deliver the Final Official Statement pursuant to this paragraph, the City is not taking any responsibility for the accuracy or completeness of the information in the Final Official Statement concerning the Insurer or The Depository Trust Company and its book-entry only system ofregistration ofthe Bonds); (iv) to the best of their knowledge the City is not in material breach of or material default under any applicable constitutional provision, law or administrative regulation of the State or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, material resolution, material agreement or other material instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, and no event has occurred and is continuing that with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument; and the execution and delivery of the Bonds, the Escrow Agreement, this Purchase Contract, and the adoption ofthe Resolution and compliance with the provisions on the City's part contained therein, will not conflict with or constitute a material breach of or default under, any constitutional provision, law, administrative regulation, judgment, 7 decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, and any such execution, delivery, adoption or compliance will not result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the City under the terms of any such law, regulation or instrument, except as expressly provided by the Bonds or the Resolution; (v) the City has the right and power under the Act to adopt the Resolution and the Resolution has been duly and lawfully adopted by the City, is in full force and effect and constitutes the legal, valid and binding obligation of the City, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and no other authorization is required for the City to adopt the Resolution; (vi) to the best of their knowledge, there is no action, suit, proceeding, inquiry or investigation at law or in equity before or by any court, government agency, public board or body, pending or threatened against or affecting the City, nor is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would have a materially adverse effect upon the transactions contemplated by the Final Official Statement or the validity of the Bonds, the Resolution, the Escrow Agreement or this Purchase Contract, except as described in the Final Official Statement; and (vii) all authorizations, consents, approvals and reviews of govemmental bodies or regulatory authorities then required for the City's adoption, execution or performance of the Bonds, the Resolution, the Escrow Agreement and this Purchase Contract have been obtained or effected and, to the best of their knowledge, they have no reason to believe that the City will be unable to obtain or effect any such additional authorization, consent, approval or review that may be required in the future for performance of any of them by the City. (iv) A certificate, dated the Closing Date, signed by an Authorized Representative to the effect that to the best knowledge of the signer: (i) the representations of the City herein are true and correct in all material respects as of the Closing Date; (ii) the City has performed all obligations to be performed hereunder as of the Closing Date; (iii) except as disclosed in the Final Official Statement, there is no litigation pending or threatened (A) to restrain or enjoin the issuance or delivery of any of the Bonds, (B) in any way contesting or affecting any authority for the issuance of the Bonds or the validity of the Bonds, the Resolution, the Escrow Agreement or this Purchase Contract, (C) in any way contesting the corporate existence or powers of the City, (D) to restrain or enjoin the collection of revenues pledged or to be pledged to pay the principal of, premium, if any, and interest on the Bonds, (E) which may result in any material adverse change in the business, properties, assets and the financial condition of the City taken as a whole, or (F) asserting that the Final Official Statement contains any untrue statement of a material fact or omits any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (iv) since September 30, 2004, no material adverse change has occurred in the financial position or results of operations of the City except as set forth in or contemplated by the Final Official Statement; (v) the City has not, since September 30, 2004, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Final Official Statement; (vi) the information contained in the Final Official Statement pertaining to the City (except for the Insurer or The Depository Trust Company book-entry only system for which no opinion need be expressed) did not as of its date, and does not as of the Closing Date contain any untrue statement of a material fact or omit to state a material fact required to be included therein or 8 necessary in order to make the statements contained therein, in light of the circumstances in which they were made, not misleading; and (vii) that the City has not been in default at any time on or after December 31,1975, as to principal or interest with respect to any obligation issued or guaranteed by the City. (v) An opinion, dated the Closing Date and addressed to the Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Disclosure Counsel for the City, to the effect that (i) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Resolution is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended; and (ii) based upon their participation and their review of the Final Official Statement as Disclosure Counsel and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Final Official Statement, as of the Closing Date nothing has come to the attention of such counsel causing them to believe that (A) the Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except for the financial and statistical information contained in the Final Official Statement as to which no view need be expressed), or (B) the Final Official Statement as of the Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except as aforesaid). (vi) An opinion, dated the Closing Date and addressed to the Underwriter, of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Disclosure Counsel for the City, to the effect that the continuing disclosure undertaking of the City contained in the Resolution, pursuant to which the City has agreed to provide the information required by Rule 15c2-12(b)(5) issued by the Securities and Exchange Commission under the Securities Exchange Act of 1934, provides a suitable basis for the Underwriter in connection with the Offering (as defined in Rule 15c2-12), to make a reasonable determination as required by paragraph (b)(5) of said Rule; (vii) An opinion, dated the Closing Date, and addressed to the Underwriter, from counsel for the Insurer to the effect that: (i) the Insurer is a validly existing and in good standing under the laws of the State of and qualified to do business therein and is licensed and authorized to issue its financial guaranty insurance policies under the laws of the State of Florida; (ii) the Bond Insurance Policy is valid and binding upon the Insurer and enforceable in accordance with its terms, subject to applicable laws affecting creditors' rights; (iii) the Insurer, as an insurance company, is not eligible for relief under the Federal Bankruptcy Laws (any proceedings for the liquidation, conservation or rehabilitation of the Insurer would be governed by the provisions of the ); and (iv) the statements described in the Final Official Statement relating to the Insurer and the Bond Insurance Policy accurately and fairly present the summary information set forth therein and do not omit any material fact with respect to the description of the Insurer relative to the material terms of the Bond Insurance Policy or the ability to the Insurer to meet its obligations under the Bond Insurance Policy. (viii) A Rule 15c2-12 Certificate with respect to the Preliminary Official Statement signed by the City Manager. 9 (ix) The verification report of Causey, Demgen & Moore as described under the section entitled "Verification of Mathematical Computations" in the Final Official Statement. (x) A copy of the executed Escrow Deposit Agreement. (xi) Such additional legal opinions, certificates, instruments and other documents as the Underwriter may reasonably request to evidence the truth and accuracy, as of the date hereof and as of the Closing Date, of the City's representations and warranties contained herein and of the statements and information contained in the Final Official Statement and the due performance or satisfaction by the City on or prior to the Closing Date of all the agreements then to be performed and conditions then to be satisfied by it. (f) Bonds. The Insurer shall have issued its Bond Insurance Policy (the "Policy") insuring the (g) The Bonds shall have received ratings of "AAA" and "Aaa" by Standard & Poor's and Moody's Investors Service, respectively. All of the evidence, opinions, letters, certificates, instruments and other documents, mentioned above or elsewhere in this Purchase Contract shall be deemed to be in compliance with the provisions hereof if, but only if, they are in form and substance satisfactory to the Underwriter and the City. If the conditions to the obligations of the Underwriter to purchase, to accept delivery of and to pay for the Bonds contained in this Purchase Contract are not satisfied, or if the obligations of the Underwriter to purchase, to accept delivery of and to pay for the Bonds shall be terminated for any reason permitted by this Purchase Contract, this Purchase Contract shall terminate and neither the Underwriter nor the City shall be under any further obligation hereunder, except that the respective obligations of the City and the Underwriter set forth in paragraph 11 hereof shall continue in full force and effect. 8. Termination. (a) The Underwriter may terminate its obligation to purchase at any time before the Closing Date if any of the following should occur: (i) (1 )Legislation (including any amendment thereto) shall have been introduced in or adopted by either House of the Congress of the United States, or recommended to the Congress for passage by the President of the United States or favorably reported for passage to either House of the Congress by any Committee of such House; (2) a decision shall have been rendered by a court established under Article III of the Constitution of the United States or by the United States Tax Court; or (3) a release or official statement shall have been issued by the President of the United States, by the Treasury Department of the United States or by the Internal Revenue Service; the effect of which, in any such case described in clauses (1), (2) or (3) herein, would be to impose, directly or indirectly, federal income taxation upon interest received on obligations of the general 10 character of the Bonds other than as imposed on the Bonds and income therefrom under the federal tax laws in effect on the date hereof, in such a manner as in the judgment of the Underwriter would materially impair the marketability or materially reduce the market price of obligations ofthe general character of the Bonds; or (ii) Any action shall have been taken by the Securities and Exchange Commission or by a court which would require registration of any security under the Securities Act of 1933, as amended, or qualification of any indenture under the Trust Indenture Act of 1939, as amended, in connection with the public offering of the Bonds, or any action shall have been taken by any court or by any governmental authority suspending the use of the Final Official Statement or any amendment or supplement thereto, or any proceeding for that purpose shall have been initiated or threatened in any such court or by any such authority; or (iii) (1) The Constitution of the State of Florida shall be amended or an amendment shall be proposed, (2) legislation shall be enacted, (3) a decision shall have been rendered as to matters of Florida law, or (4) any order, ruling or regulation shall have been issued or proposed by or on behalf of the State of Florida by an official, agency or department thereof, affecting the status of City, its property or income, its bonds (including the Bonds) or the interest thereon which in the judgment of the Underwriter would materially adversely affect the market price of the Bonds; or (iv) (1) A general suspension of trading in securities shall have occurred on the New York Stock Exchange, or (2) the United States becomes engaged in any outbreak of armed hostilities (whether or not foreseeable at the time of execution hereof) or hostilities previously commenced shall escalate, the effect of which in either case described in clauses (1) and (2), is, in the judgment of the Underwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated in this Purchase Contract and the Final Official Statement, including without limitation any material adverse effect on the market price of the Bonds; or (v) An event occurs which, in the reasonable opinion of the Underwriter, requires a supplement or amendment to the Final Official Statement and the information set forth in such supplement or amendment adversely effects, in the reasonable opinion of the Underwriter, the marketability of the Bonds; or (vi) A general banking moratorium shall have been declared by authorities of the United States, the State of New York or the State of Florida. 9. Expenses. (a) Whether or not the Bonds are sold by the City to the Underwriter (unless such sale be prevented at Closing by the Underwriter's default), the City shall be obligated to pay the following expenses: (i) the cost of preparing and printing or other reproduction of the Resolution; (ii) the cost of preparing and printing the Bonds, the Preliminary Official Statement and the Final Official Statements; (iii) the fees and disbursements of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., incurred in its capacity as Bond Counsel; (iv) the fees and disbursements of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., incurred in their capacity as Disclosure Counsel for the City; (v) the fees 11 and disbursements of the Escrow Agent, Paying Agent and the Bond Registrar; (vi) the fees and expenses of Causey, Demgen & Moore for the verification report; and (vii) the fees and disbursements of any other experts, accountants, consultants or advisors retained by the City. (b) Whether or not the Bonds are sold by the City to the Underwriter (unless such sale be prevented at Closing by the City's default), the Underwriter shall be obligated to pay all expenses incurred by it in connection with the public offering of the Bonds. 10. Notices. Any notice or other communication to be given to the City under this Purchase Contract may be given by delivering the same in writing to the address set forth above and any notice or other communications to be given to the Underwriter under this Purchase Contract may be given by delivering the same in writing to Bear, Steams & Co. Inc., 225 N.E. Mizner Blvd., Suite 500, Boca Raton, Florida 33432. II. Parties in Interest. (a) This Purchase Contract is made solely for the benefit ofthe City and the Underwriter (including the successors or assigns of the Underwriter) and no other person shall acquire or have any right hereunder or by virtue hereof. All of the representations, warranties and agreements of the City contained in this Purchase Contract shall remain operative and in full force and effect (but shall not be deemed to be continuing representations and warranties of the City), regardless of: (i) any investigations made by or on behalf of the Underwriter; (ii) delivery of and payment for the Bonds pursuant to this Purchase Contract; or (iii) any termination of this Purchase Contract, but only to the extent provided by the last paragraph of Section 7 hereof. (b) No covenant, stipulation, obligation or agreement contained in this Purchase Contract shall be deemed to be a covenant, stipulation, obligation or agreement of any member, agent or employee of the City Commission in his individual capacity and neither the members of the City Commission nor any official executing this Purchase Contract shall be liable personally under this Purchase Contract or be subject to any personal liability or accountability by reason of the execution hereof. 12. Effectiveness. This Purchase Contract shall become effective upon the execution of the acceptance hereof on behalf of the City by the Authorized Representative, all in accordance with the requirements set forth in the Resolution, and shall be valid and enforceable at the time of such acceptance. 13. Counterparts. This Purchase Contract may be executed in several counterparts, which together shall constitute one and the same instrument. 14. Florida Law Governs. The validity, interpretation and performance of this Purchase Contract shall be governed by the laws of the State of Florida. 15. Entire Agreement. This Purchase Contract when accepted by the City in writing as heretofore specified shall constitute the entire agreement between us. 12 16. Headings. The headings of the paragraphs of this Purchase Contract are inserted for convenience only and shall not be deemed to be part hereof. BEAR, STEARNS & CO. INC. By: Name: J.W. Howard Title: Managing Director Accepted as of the date hereof: CITY OF BOYNTON BEACH, FLORIDA By: Gerald Taylor, Mayor G:\02345\J7 Utility 2005\purchase contract(2).wpd 13 EXHIBIT "B" Registrar Agreement BOND REGISTRAR AGREEMENT THIS BOND REGISTRAR AGREEMENT is made and entered into as of August _,2005, by and between the City of Boynton Beach, Florida (the "Issuer") and The Bank of New York Trust Company, N.A. (the "Bank"). WHEREAS, the Issuer by the Resolution (as hereinafter defined), designated the Bank as Bond Registrar (as defined in the Resolution) for its Utility System Revenue Refunding Bonds, Series 2005 (the "Bonds"); and WHEREAS, the Issuer and the Bank desire to set forth the Bank's duties as Bond Registrar and the compensation to be paid the Bank for its services. NOW, THEREFORE, it is agreed by the parties hereto as follows: 1. The Bank agrees to serve as Bond Registrar for the Bonds and to perform the duties of Bond Registrar under Resolution No. 92-96 adopted by the City Commission ofthe Issuer on June 16,1992, as amended and supplemented, with respect to the Bonds (the "Resolution"). 2. The Issuer shall timely deposit with the Bank sufficient funds from the accounts established for the payment of the Bonds under the Resolution to pay when due and payable the principal of, premium, if any, and interest on the Bonds. 3. The Bank shall use the funds received from the Issuer pursuant to paragraph 2 hereof (and only such funds) to pay the principal of, premium, if any, and interest on the Bonds in accordance with the Resolution. The Bank shall cremate cancelled Bonds and transmit to the Issuer a certificate of destruction therefor. 4. The Bank shall be obligated to act only in accordance with the Resolution and any written instructions received in accordance therewith, and is authorized hereby to comply with any orders, judgments, or decrees of any court and shall not be liable as a result of its compliance with the same. 5. The Bank may rely absolutely upon the genuineness and authorization of the signature and purported signature of any party upon any instruction, notice, release, request, affidavit, certificate, opinion or other document delivered to it pursuant to the Resolution. 6. To the extent allowed by Florida law, the Issuer hereby agrees to indemnify the Bank and its agents and hold it harmless from any and all claims, liabilities, losses, actions, suits, or proceedings at law or in equity, or any other expenses, fees (including attorneys' fees and expenses), or charges of any character or nature, which it may incur or with which it may be threatened by reason of its acting as Bond Registrar under the Resolution, unless caused by the Bank's willful misconduct or gross negligence; and in connection therewith, to indemnify the Bank against any and all expenses, including attorneys' fees and the costs of defending any action, suit, or proceeding, or resisting any claim. This Section shall survive termination of this Agreement. 7. The Bank may consult with counsel of its own choice and shall have sole and complete authorization and protection for any action taken or suffered by it under the Resolution in good faith and in accordance with the opinion of such counsel. The Bank shall otherwise not be liable for any mistakes offact or errors of judgment, or for any acts or omissions of any kind unless caused by the Bank's willful misconduct or gross negligence. 8. In consideration of the services rendered by the Bank as Bond Registrar, the Issuer agrees to and shall pay to the Bank a fee in accordance with Exhibit A hereto during the term of this Agreement, payable annually in advance, and all expenses, charges, attorneys' fees and expenses, and other disbursements incurred by it or its attorneys, agents, and employees in and about the acceptance and performance of its powers and duties as Bond Registrar. In the event the system for immobilization of bond certificates (the book-entry only system) is terminated, the fee of the Bank would be revised based upon the then current fee schedule of the Bank. This Section shall survive termination of this Agreement. 9. The Bank shall, at all times, when requested to do so by the Issuer, furnish full and complete information pertaining to its functions as the Bond Registrar with regard to the Bonds, and shall without further authorization, execute all necessary and proper deposit slips, checks, certificates and other documents with reference thereto. 10. Either of the parties hereto, at its option, may cancel this Agreement after giving thirty (30) days written notice to the other party of its intention to cancel, and this Agreement may be cancelled at any time by mutual consent of the parties hereto. This Agreement shall terminate without further action upon final payment of the Bonds and the interest appertaining thereto. 11. In the event of a cancellation of this Agreement, the Issuer shall deliver any proper and necessary releases to the Bank upon demand and the Bank shall, after payment of all amounts owing to it hereunder, upon demand pay over the funds on deposit in connection with the Bonds and surrender all registration books and related records, and the Issuer may appoint and name a successor to act as Bond Registrar for the Bonds. The Issuer shall, in such event, notify all holders of the Bonds of the appointment and name of the successor, by providing notice in the manner required by the Resolution for the redemption of the Bonds. 12. This Agreement shall not be assigned by either party without written consent of the other party. 13. No modification of this Agreement shall be valid unless made by a written agreement, executed and approved by the parties hereto. 14. Should any section or part of any section of this Agreement be declared void, invalid, or unenforceable by any court of law for any reason, such determination shall not render void, invalid, or unenforceable any other section or other part of any section of this Agreement. 15. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida. 16. ( a) The Issuer hereby instructs the Bank to pay the principal of and interest on the Bonds at the dates specified in the Resolution. (b) The Bank shall be under no liability for interest on any money received by it hereunder. 2 (c) Any money deposited with the Bank for the payment of the principal, redemption premium, if any, or interest on any Bond and remaining unclaimed for three years after final maturity of the Bond has become due and payable will be paid by the Bank to the Issuer, and the owner of such Bond shall thereafter look only to the Issuer for payment thereof, and all liability of the Bank with respect to such monies shall thereupon cease. 17. The Issuer and the Bank agree that the Bank may seek adjudication of any adverse claim, demand, or controversy over its persons as well as funds on deposit, waive personal service of any process, and agree that service of process by certified or registered mail, return receipt requested, to the address set forth below, or such other address as designated in writing sent by one party hereto to the other, shall constitute adequate service. The Issuer and the Bank further agree that the Bank has the right to file a Bill ofInterpleader in any court of competent jurisdiction to determine the rights of any person claiming any interest herein. As to the Issuer: City Manager City of Boynton Beach 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425 As to the Bank: The Bank of New York Trust Company, N.A. 10161 Centurion Parkway 2nd Floor Jacksonville, Florida 32256 18. Reference is hereby made to Sections 205, 206, 214 and 306 of the Resolution, which relate, respectively, to the exchange of Bonds, the negotiability, registration and transfer of Bonds, mutilated, destroyed or lost Bonds and cancellation of Bonds. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. CITY OF BOYNTON BEACH, FLORIDA By: City Manager THE BANK OF NEW YORK TRUST COMPANY, N.A., as Bond Registrar By: Its Authorized Signatory G:\02345\37 UtiJity 2005\bond registrar agreement.wpd 3 EXHIBIT "C" Preliminary Official Statement PRELIMINARY OFFICIAL STATEMENT DATED AUGUST 3, 2005 This Preliminary Official Statement and the information contained herein are subject to completion or amendment. These securities may not be sold nor may offers to buy be accepted prior to the time the Official Statement is delivered in final form. Under no circumstances shall this Preliminary Official Statement constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. NEW ISSUE - BOOK-ENTRY ONLY RATINGS: Fitch: "AAA" S&P: "AAA" See "RATINGS" herein In the opinion of Bond Counsel, under existing law and assuming continuing compliance by the City with certain covenants, interest on the 2005 Bonds will be excludedfrom gross income for federal income tax purposes and interest on the 2005 Bonds will not be an item of tax prFference for purposes of the federal alternative minimum tax imposed on individuals and corporations. See, however, the information under the heading 'TAX EXEMPTION" herein for a description of certain taxes on corporations andfor a discussion of certain other tax consequences to holders of the 2005 Bonds. Bond Counsel is also of the opinion that the 2005 Bonds will be exempt from all prFsent intangible personal property taxes imposed by the State of Florida. See "'E4X EXEMPTION" herein. $15,000,000* City of Boynton Beach, Florida Utility System Revenue Refunding Bonds Series 2005 Dated: Date of Delivery Due: November 1, as shown below The City of Boynton Beach, Florida Utility System Revenue Refunding Bonds, Series 2005 (the "2005 Bonds") are being issued by the City of Boynton Beach, Florida (the "City") as fully registered bonds and will be initially issued and registered to Cede & Co., as nominee of The Depository Trust Company, New York, New York ("DTC"), which will act as securities depository for the 2005 Bonds. Purchases of beneficial intcrests in the 2005 Bonds will be made in book-entry form only and the purchasers will not receive physical delivery of the 2005 Bonds or any certificate representing their beneficial ownership interest in the 2005 Bonds. The 2005 Bonds will be available to purchasers in principal denominations of$5,000 and integral multiples thereofunder the book-entry system maintained by DTC through brokers and dealers who are, or who act through, DTC Participants. For so long as DTC or its nominee, Cede & Co., is the registered owncr of 1he 2005 Bonds, payments of principal and interest will be made directly to Cede & Co. Disbursement of payments of principal and intcrest to individual purchasers is described under the heading "DESCRIPTION OF THE 2005 BONDS - Book-Entry-Only System" herein. Interest on the 2005 Bonds will be payable on November 1,2005 and semi-annually thereafter on each May I and November I. The 2005 Bonds will not be subject to optional redemption prior to maturity but may be subject to mandatory redemption prior to maturity as described herein. This cover page contains certain information for quick reference only. It is not a summary ofthe issue. Investors must read theentire Official Statement to obtain information essential to the making of an informed investment decision. The 2005 Bonds are bcing issued for 1he principal pmpose of refunding the City's outstanding Utility System Revenue Bonds, Series 1996 maturing on and after November 1,2007. The 2005 Bonds will be limited obligations of the City payable solely from the Net Revenues derived by the City from the operation ofits water, sewer and stormwater utility system (the "System"), certain Impact Fees and moneys and investments held in certain funds and accounts created by the Resolution (collectively, the "Pledged Revenues"). The lienofthe 2005Bonds onthe Pledged Revenues will beon a parity with the lien ofthe City's outstanding Utility System Revenue Bonds, Series 1996 not refunded by the 2005 Bonds, the Gty's outstanding Utility System Revenue Refunding Bonds, Series 2002 and any Additional Bonds (herein dermed). The 2005 Bonds will not constitute a general obligation, debt or liability of the City or of the State of Florida or any political subdivision, agency or instrumentality of the City or the State of Florida within the meaning of any constitutional, statutory, or charter provisions or limitations and neither the full faith and credit nor the taxing power of the State of Florida or the City are pledged as security for the payment of the principal of, premium, if any, or interest on the 2005 Bonds. Payment of the principal of and interest on the 2005 Bonds when due will be insured by a financial guaranty insurance policy to be issued by Ambac Assurance Corporation simultaneously with del ivery of the 2005 Bonds. [Insert Logo] AMOUNTS, MATURITIES, INTEREST RATES AND PRICES OR YIELDS $ Serial Bonds AmOlmt AmOlmt Maturity Interest Rate Price or Yield CUSIP Maturity Interest Rate Price or Yield CUSIP $ _ _% Term Bonds due November 1,20__ - Price 100% - Yield_% The 2005 Bonds are offered when, as and ifissued, subject to the satisfaction of certain conditions and subject to the unqualified approval oflegality and tax- exempt status of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Bond Counsel and Disclosure Counsel to the City. Certain legal matters will be passed upon for the City by its City Attorney, Goren, Cherof, Doody & Ezrol. P.A., Fort Lauderdale, Florida and for the Underwriter by its counsel Edwards & Angell, LiP, West Palm Beach, Florida. It is expected that the 2005 Bonds will be delivered through the facilities of The Depository Trust Company in New York, New York, on or about August _,2005. BEAR, STEARNS & CO. INC. The date of this Official Statement is _ ---y 2005. .Preliminary, subject to change. """""'..,"'_~"''''''''''';"'''...,...;__;..~__.~,.;,;""'"'"'~''''''''.,,'''_.~'',._ -c.., CITY OF BOYNTON BEACH, FLORIDA 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425 Telephone: 561-375-6000 CITY COMMISSION Gerald Taylor, Mayor Bob Ensler, Vice Mayor Muir C. Ferguson, Connnissioner Mack McCray, Commissioner Carl McKoy, Commissioner CITY OFFICIALS Kurt Bressner, City Manager William Mummert, Finance Director Janet Prainito, City Clerk CITY ATTORNEY James Cherof Goren, Cherof, Doody & Ezrol, P.A. Fort Lauderdale, Florida BOND AND DISCLOSURE COUNSEL Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. West Palm Beach, Florida FINANCIAL ADVISOR RBC Dain Rauscher Inc. St. Petersburg, Florida No dealer, broker, salesman or other person has been authorized to make any representations, other than as contained in this Official Statement, and if given or made, such other information or representations must not be relied upon. This Official Statement does not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the 2005 Bonds by any person in any jurisdiction in which it is unlawful for such person to make such offer, solicitation or sale. The information contained in this Official Statement has been obtained from public documents, records and other sources considered to be reliable and, while not guaranteed as to completeness or accuracy, is believed to be correct. The Underwriter has reviewed the information in this Official Statement in accordance with and as part of its responsibilities to investors under federal securities laws as applied to the facts and circumstances of this transaction, but the Underwriter does not guaranty the accuracy or completeness of such information. Any statements in this Official Statement involving estimates, assumptions and matters of opinion whether or not so expressly stated, are intended as such and not as representations of fact, and the City expressly makes no representations that such estimates, assumptions and opinions will be realized or fulfilled. No information, estimates, assumptions and matters of opinion contained in this Official Statement, or any sale made hereunder shall under any circumstances create any implication that there has been no change in the affairs of the City since the date hereof. The information relating to the Ambac Assurance Corporation contained herein under the captions "MUNICIPAL BOND INSURANCE" and "SECURITY FOR THE 2005 BONDS- RESERVE ACCOUNT- AMBAC ASSURANCE SURETY BOND" has been furnished by Ambac Assurance Corporation. No representation is made by the City or the Underwriter as to the accuracy or completeness of such information or that there has not been any material adverse change in such information subsequent to the date of such information. Neither the City nor the Underwriter has made any investigation into the financial condition of Ambac Assurance Corporation, and no representation is made as to the ability of Ambac Assurance Corporation to meet its obligations under the Financial Guaranty Insurance Policy or the 2005 Reserve Account Surety Bond described herein. THE 2005 BONDS HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR HAS THE BOND RESOLUTION BEEN QUALIFIED UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, IN RELIANCE UPON EXEMPTIONS CONTAINED IN SUCH ACTS. THE REGISTRATION OR QUALIFICATION OF THE 2005 BONDS IN ACCORDANCE WITH APPLICABLE PROVISIONS OF THE SECURITIES LAWS OF THE STATES, IF ANY, IN WHICH THE 2005 BONDS HAVE BEEN REGISTERED OR QUALIFIED AND TIlE EXEMPTION FROM REGISTRATION OR QUALIFICATION IN CERTAIN OTHER STATES CANNOT BE REGARDED AS A RECOMMENDATION THEREOF. NEITHER THESE STATES NOR ANY OF THEIR AGENCIES HAVE PASSED UPON THE MERITS OF THE 2005 BONDS OR THE ACCURACY OR COMPLETENESS OF THIS OFFICIAL STATEMENT. ANY REPRESENTATION TO THE CONTRARY MAY BE A CRIMINAL OFFENSE. THIS PRELIMINARY OFFICIAL STATEMENT HAS BEEN "DEEMED FINAL" BY THE CITY FOR PURPOSES OF SECURITIES AND EXCHANGE COMMISSION RULE 15c2-12, EXCEPT FOR PERMITTED OMISSIONS. TABLE OF CONTENTS Page INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 PURPOSE OF THE 2005 BONDS ...................................................... 1 DESCRIPTION OF THE 2005 BONDS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 General ..................................................................... 2 Redemption Provisions for the 2005 Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 Selection of2005 Bonds for Redemption. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. 3 Notice of Redemption . . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. 3 Effect of Redemption .......................................................... 3 Book-Entry Only System ....................................................... 3 SECURITY FOR THE 2005 BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5 General ..................................................................... 5 Definitions .................................................................. 6 Rate Covenant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7 Reserve Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 8 Flow of Funds . . . . . . .. . . . " . . . . . . . . . . " . . . . . . . . . . " . . . . . . . . . . .. . . . . . . . . . . .. . .. 9 General Reserve Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. II Issuance of Additional Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. II FINANCIAL GUARANTY INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13 General .................................................................... 13 Payment Pursuant to Financial Guaranty Insurance Policy ............................ 13 Ambac Assurance Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14 Available Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15 Incorporation of Certain Documents by Reference .................................. 15 ESTIMATED SOURCES AND USES OF FUNDS ........................................ 16 DEBT SERVICE REQUIREMENTS ................................................... 17 THE SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17 General .................................................................... 17 Service Area ..................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17 Condition of the Overall System and System Performance . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18 Administration .............................................................. 18 Water System ............................................................... 18 Wastewater System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19 Stormwater System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20 Rates and Customer Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20 Historical Revenues .......................................................... 21 Impact Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22 System Customers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 22 THE CITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22 VERIFICATION OF MATHEMATICAL COMPUTATIONS ................................ 22 TAX EXEMPTION ....................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23 LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24 COVENANTS CONCERNING ONGOING DISCLOSURE '" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24 UNDERWRITING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 27 RATINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 27 LEGALITY ....................................................................... 27 EXCERPTS FROM COMPREHENSIVE ANNUAL REPORT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27 MISCELLANEOUS ................................................................ 27 AUTHORIZATION OF OFFICIAL STATEMENT ........................................ 28 -}- .1XC ~l'IDIX D .rPENDIX E Statistical and Other General Information Concerning the City of Boynton Beach, Florida Excerpts from Comprehensive Annual Financial Report of the City for the Fiscal Year Ended September 30, 2004 Summary of Certain Provisions of the Resolution Proposed Form of Opinion of Bond Counsel Specimen Financial Guaranty Insurance Policy -11- OFFICIAL STATEMENT $15,000,000* City of Boynton Beach, Florida Utility System Revenue Refunding Bonds, Series 2005 INTRODUCTION The purpose of this Official Statement, including the cover page and appendices, is to set forth certain information concerning the sale by the City of Boynton Beach, Florida (the "City") of its Utility System Revenue Refunding Bonds, Series 2005, in the aggregate principal amOlmt of $15,000,000* (the "2005 Bonds"). The 2005 Bonds will be issued under and secured pursuant to Resolution No. 92-96 adopted by the City Commission ofthe City (the "City Commission") on June 16, 1992, as amended and supplemented, in particular by Resolution No. R05-_, adopted by the City Commission on August 2, 2005 (collectively, the "Resolution ") and the Constitution and laws of the State of Florida, particularly Chapter 166, Florida Statutes and the Charter ofthe City. Copies of the Resolution are on file with the City at the office of the City Clerk, and reference thereto is hereby made for a complete understanding ofthe terms of and security for the 2005 Bonds, the custody and application of the proceeds ofthe 2005 Bonds, the rights and remedies ofthe holders of the 2005 Bonds and the rights, duties and obligations of the City. The 2005 Bonds will be issued on a parity with the City's outstanding Utility System Revenue Bonds, Series 1996 not refunded by the 2005 Bonds (the "Unrefunded 1996 Bonds"), the City's outstanding Utility System Revenue Refunding Bonds, Series 2002 (the "2002 Bonds") and any additional parity bonds issued pursuant to the Resolution (the "Additional Bonds"). The Unrefunded 1996 Bonds, the 2002 Bonds, the 2005 Bonds and any Additional Bonds are herein collectively referred to as the "Bonds." The 2005 Bonds will be limited obligations of the City and will be secured and payable solely from the Net Revenues (as hereinafter defined) derived by the City from the operation of its water, sewer and stormwater utility system (the "System "), certain Impact Fees (as hereinafter defined), and moneys and investments held in certain funds and accounts created by the Resolution (collectively, the "Pledged Revenues"). Neither the faith and credit nor the taxing power of the City, the State of Florida or any political subdivision thereof will be pledged to the payment of the principal of or interest on the 2005 Bonds. See "SECURITY FOR THE 2005 BONDS" herein. Ambac Assurance Corporation has issued its commitment to issue a financial guaranty insurance policy insuring the payment of the principal of and interest on the 2005 Bonds simultaneously with the delivery of the 2005 Bonds. See "FINANCIAL GUARANTY INSURANCE" herein. All capitalized terms in this Official Statement not otherwise defined herein shall have the meanings set forth in Appendix C hereto, unless the context clearly indicates otherwise. PURPOSE OF THE 2005 BONDS The 2005 Bonds are being issued by the City for the principal purpose of providing funds, together with other available funds of the City, to defease prior to maturity the City's outstanding Utility System Revenue Bonds, Series 1996 maturing on and after November 1,2007 (the "Refunded Bonds"). *Preliminary, subject to change. A portion of the proceeds derived from the issuance of the 2005 Bonds, and certain other funds of the City, will be used for purpose of defeasing the Refunded Bonds. The City plans, upon funding of the hereinafter described Escrow Deposit Trust Fund, to irrevocably call the Refunded Bonds for redemption on November I, 2006 at a redemption price equal to 102% of the principal amount to be redeemed plus accrued interest to the redemption date. A portion of the proceeds derived from the sale of the 2005 Bonds, and other funds of the City, will be deposited into an irrevocable Escrow Deposit Trust Fund (the "Escrow Deposit Trust Fund") held by The Bank of New York Trust Company, N.A. (the "Escrow Agent") pursuant to an Escrow Deposit Agreement (the "Escrow Agreement") between the City and the Escrow Agent, in an amount sufficient, together with investment income thereon, to pay principal of, redemption premium and interest on the Refunded Bonds. Pending disbursement to pay the Refunded Bonds, amounts in the Escrow Deposit Trust Fund will either be held uninvested or will be invested in direct, noncallable United States Treasury Obligations. Upon the funding and, if applicable, investment, of the Escrow Deposit Trust Fund, in the opinion of Bond Counsel, rendered in reliance upon the verification report of Causey, Demgen & Moore Inc., independent certified public accountants, the lien of the Refunded Bonds on the Pledged Revenues will have been defeased and the Refunded Bonds will no longer be considered to be outstanding for purposes of the Resolution. DESCRIPTION OF THE 2005 BONDS General The 2005 Bonds will be issued in the aggregate principal amounts shown on the cover page hereof. The 2005 Bonds will be issued in fully registered form without coupons in principal denominations of$5,000 each or any integral multiple thereof, as described below under "Book-Entry-Only System." The 2005 Bonds will be dated the date of delivery, will bear interest at the rates per annum, computed on the basis of a 360-day year consisting oftwelve thirty-day months, and will mature on the dates and in the amounts set forth on the cover page hereof. Interest on the 2005 Bonds will be payable on November 1, 2005, and semi-annually thereafter on May 1 and November 1 of each year. The Bank of New York Trust Company, N.A., will act as paying agent and Bond Registrar for the 2005 Bonds. Redemption Provisions for the 2005 Bonds Optional Redemption. The 2005 Bonds will not be subject to optional redemption prior to their stated maturities. Mandatory Redemlltion. The 2005 Bonds maturing on November 1, 20_ will be subject to mandatory redemption in part prior to their maturity date at a redemption price equal to the principal amount thereof, without premium, plus accrued interest to the redemption date, on November 1,20_ and on each November 1 thereafter in the years and principal amounts set forth below (except for the final installment due at maturity, which shall not be a redemption): Year Amount * Maturity. 2 Selection of 2005 Bonds for Redemption The City shall select the 2005 Bonds or portions thereof to be purchased or redeemed by lot. The City shall promptly notify the Bond Registrar in writing of the numbers of the 2005 Bonds so selected for redemption and in making such selection, each 2005 Bond shall be treated as representing that number of 2005 Bonds of the lowest authorized denomination of 2005 Bonds as is obtained by dividing the principal amount of such 2005 Bond by such denomination. Notice of Redemption At least thirty (30) and not more than sixty (60) days prior to the redemption date, a notice of such redemption: (i) shall be filed with the Bond Registrar and (ii) shall be mailed postage prepaid, to all registered owners of the 2005 Bonds to be redeemed at their addresses as they appear on the registration books maintained by the Bond Registrar, but failure of any bondholder to receive any such notice shall not affect the validity of the proceedings for such redemption, and any defect in the giving of such notice of redemption of any 2005 Bond shall not affect the validity of the redemption of any other 2005 Bond. Effect of Redemption On the date so designated for redemption. notice having been given in the manner and under the conditions provided in the Resolution, the 2005 Bonds so called for redemption shall become and be due and payable at the redemption price provided for redemption of such 2005 Bonds on such date, and, moneys for payment of the redemption price being held in separate accounts by the Finance Director or by the Bond Registrar in trust for the Holders of the 2005 Bonds to be redeemed, interest on the 2005 Bonds so called for redemption shall cease to accrue, such 2005 Bonds shall cease to be entitled to any lien, benefit or security under the Resolution, and the Holders or registered owners of such 2005 Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof and accrued interest thereon. Book-Entry Only System Unless the book-entry system described herein is terminated, as hereinafter described, The Depository Trust Company ("DTC"), New York, New York, will act as securities depository for the 2005 Bonds. The 2005 Bonds will be issued as fully registered securities registered in the name of Cede & Co. (DTC's partnership nominee) or such other name as may be requested by an authorized representative of DTC. One fully registered 2005 Bond certificate will be issued for each maturity of the 2005 Bonds, in the aggregate principal amount of such maturity, and will be deposited with DTC or with the Trustee on behalf ofDTC. DTC, the world's largest depository, is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and "clearing agency" registered pursuant to the provisions of Section 17 A of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for over 2 million issues of U.S. and non-US. equity issues, corporate and municipal debt issues and money market instnnnents from over 85 countries that DTC's participants ("Direct Participants") deposit with DTC. DTC also facilitates the settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between Direct Participant's accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include both US. and non-US. securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation 3 ("DTCC"). DTCC, in turn, is owned by a number of Direct Participants ofDTC and Members ofthe National Securities Clearing Corporation, Fixed Income Clearing Corporation and Emerging Markets Clearing Corporation, (NSCC, FICC and EMCC, also subsidiaries of DTCC), as well as by the New York Stock Exchange, Inc., the American Stock Exchange, LLC, and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("IndirectParticipants"). DTC has Standard and Poor's highest rating: AAA. The DTC rules applicable to its Participants are on file with the Securities and Exchange Commission. More information about DTC can be found at www.dtcc.com and www.dtc.org. Purchases ofthe 2005 Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the 2005 Bonds on DTC's records. The ownership interest of each actual purchaser of each 2005 Bond (a "Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the 2005 Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in the 2005 Bonds, except in the event that use of the book-entry system for the 2005 Bonds is discontinued. To facilitate subsequent transfers, all 2005 Bonds deposited by Participants with DTC are registered in the name ofDTC's partnership nominee, Cede & Co. The deposit of 2005 Bonds with DTC and their registration in the name of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the 2005 Bonds; DTC's records reflect only the identity of the Direct Participants to whose accounts such 2005 Bonds are credited, which mayor may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and IndirectParticipants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners of the 2005 Bonds may wish to take certain steps to augment the transmission to them of notices of significant events with respect to the 2005 Bonds, such as redemptions, defaults and proposed amendments to Bond documents. Beneficial Owners of the 2005 Bonds may wish to ascertain that the nominee holding the 2005 Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners. Redemption notices shall be sent only to Cede & Co. for so long as it is the registered owner of the 2005 Bonds. If less than all of the 2005 Bonds of a maturity are being redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct Participant in such maturity issue to be redeemed. Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to the 2005 Bonds. Under its usual procedures, DTC mails an Omnibus Proxy to the City as soon as possible after the record date. The Omnibus Proxy assigns Cede & Coo's consenting or voting rights to those Direct Participants to whose accounts the 2005 Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy). 4 Payments of principal, premium, if any, and interest on the 2005 Bonds will be made to Cede & Co. or such other nominee as may be requested by an authorized representative of DTC. DTC's practice is to credit Direct Participants' accounts on the payable date in accordance with their respective holdings shown on DTC's records, unless DTC has reason to believe that it will not receive payment on the payable date. Payments by Direct or Indirect Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name" and will be the responsibility of such Participant and not of DTC, the Paying Agent, or the City, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal, premimn, if any, and interest to DTC is the responsibility of the City or the Paying Agent, disbursement of such payments to Direct Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect Participants. DTC may discontinue providing its services as securities depository with respect to the 2005 Bonds at any time by giving reasonable notice to the City. Under such circumstances, in the event that a successor securities depository is not obtained, 2005 Bond certificates are required to be printed and delivered. The City may decide to discontinue use of the system of book entry transfers through DTC (or a successor securities depository). In that event, ifthe City does not appoint a successor depository, 2005 Bond certificates will be printed and delivered. THE CITY, THE BOND REGISTRAR AND THE UNDERWRITER CANNOT AND DO NOT GIVE ANY ASSURANCES THAT DTC WILL DISTRIBUTE TO ITS PARTICIPANTS OR THAT DIRECT PARTICIPANTS OR INDIRECT PARTICIPANTS WILL DISTRIBUTE TO BENEFICIAL OWNERS OF THE 2005 BONDS (1) PAYMENTS OF THE PRINCIPAL OF OR INTEREST ON THE 2005 BONDS OR (2) REDEMPTION OR OTHER NOTICES, OR THAT THEY WILL DO SO ON A TIMELY BASIS, OR THAT DTC, DIRECT PARTICIPANTS OR INDIRECf PARTICIPANTS WILL SERVE AND ACT IN THE MANNER DESCRIBED IN THIS OFFICIAL STATEMENT. THE CURRENT "RULES" APPLICABLE TO DTC ARE ON FILE WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE CURRENT "PROCEDURES" OF DTC TO BE FOLLOWED IN DEALING WITH ITS PARTICIPANTS ARE ON FILE WITH DTC. Portions ofthe foregoing concerning DTC and DTC's book-entry system are based on information furnished by DTC to the City. No representation is made herein by the City or the Underwriter as to the accuracy or completeness of such information. In the event the system of book -entry ownership of the 2005 Bonds is discontinued, transfers and exchanges of the 2005 Bonds will be accomplished as described in Appendix C "Summary of Certain Provisions of the Resolution" hereto. SECURITY FOR THE 2005 BONDS General The principal of, premium, if any, and interest on the 2005 Bonds will be payable solely from and secured by a pledge of the Pledged Revenues, which include (i) Net Revenues of the System, (ii) to the extent hereinafter described, certain Impact Fees, and (iii) subject to the application thereof as provided in the Resolution, amOlmts in certain funds and accounts established under the Resolution. The lien of the 2005 5 Bonds on the Pledged Revenues will be on a parity with the Umefunded 1996 Bonds, the 2002 Bonds and any Additional Bonds issued under the Resolution. THE BONDS DO NOT AND WILL NOT CONSTITUTE A GENERAL OBLIGATION, DEBT OR LIABILITY OF THE CITY OR THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION, AGENCY OR INSTRUMENTALITY OF THE CITY OR THE STATE OF FLORIDA WITHIN THE MEANING OF THE FLORIDA CONSTITUTION, AND NEITHER THE FULL FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY, THE STATE OF FLORIDA, OR ANY POLITICAL SUBDIVISION THEREOF, IS OR WILL BE PLEDGED OR OBLIGATED AS SECURITY FOR THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON ANY BONDS. THE BONDS ARE AND WILL BE LIMITED OBLIGATIONS OF THE CITY AND THE HOLDERS OF THE BONDS SHALL HAVE NO RIGHT TO REQUIRE THE IMPOSITION OF ANY TAX OR THE ESTABLISHMENT OF ANY RATE OF TAXATION FOR THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON ANY BONDS. Definitions "Pledged Revenues" means (i) Net Revenues, (ii) to the extent provided in the Resolution, hnpact Fees (see"The System-Impact Fees" for further information) and (iii) to the extent provided in the Resolution, other amounts in certain funds and accounts created by the Resolution. "Net Revenues" means for any particular period the amount of excess of the Revenues for such period over the Current Expenses payable from the Revenue Account for such period, provided that for purposes of determining whether or not the City can meet debt service coverage requirements with respect to the issuance of Additional Bonds or determining whether or not the City has met its rate covenant, the term "Net Revenues" shall not include Revenues deposited in the Rate Stabilization Account. "Revenues" means all moneys received by the City in connection with or as a result of its ownership or operation of the System, including any income derived from the sale of water produced, treated or distributed by the System, or the collection, transmission, treatment or disposal of sewage or stormwater runoff by the System, any proceeds of use and occupancy insurance on the System or any part thereof, payments made to the City under Interest Rate Swaps, income from investment of money held under the Resolution and amounts transferred from the Rate Stabilization Account to the Revenue Account pursuant to the Resolution and any Assessments; but excluding (i) Impact Fees, (ii) special assessments other than any Assessments, (iii) grants, contributions or donations, (iv) income from the investment of moneys in the Construction Fund and the Impact Fee Account, (v) proceeds of insurance (except use and occupancy insurance) and condemnation awards, (vi) money held in any Arbitrage Rebate Fund, (vii) proceeds of sales of property constituting a part ofthe System or (viii) the proceeds of Bonds or other Utility Debt. "Current Expenses" means the City's reasonable and necessary current expenses of maintenance, repair and operation of the System, ( a) including all ordinary and usual expenses of maintenance and repair, which may include expenses not annually recurring, all reasonable City administrative expenses allocated to the System pursuant to the Annual Budget, any reasonable payments to pension or retirement funds properly chargeable to the System, insurance premiums, engineering expenses relating to maintenance, repair and operation, expenses, including engineering expenses incurred in connection with the research and development of improvements or planned or possible improvements to the System, fees and expenses of the Bond Registrar, legal and accounting expenses, any fees, fmes, or penalties lawfully imposed on the System, any taxes which may be lawfully imposed on the System or its income or operations and reserves for such taxes or payments in lieu of such taxes as the Commission shall determine to pay, premiums for bond insurance, interest rate insurance or insurance assuring availability of the amounts required to be on deposit in the Reserve Account, fees for Credit Facilities or Liquidity Facilities, initial fees paid by the City to a 6 party in consideration of the execution of an Interest Rate Swap (as opposed to payments made by the City based upon the notional amount pursuant to the Interest Rate Swap) and any other expenses required to be paid by the City under the provisions of the Resolution or by law, including any amounts required from time to time to fund the Arbitrage Rebate Fund, (b) but Current Expenses shall not include any reserves for extraordinary maintenance or repair, or any allowance for depreciation or amortization, or any deposits or transfers to the credit of the Sinking Fund Account, the Reserve Account, the Rate Stabilization Account, the Subordinated Indebtedness Account, the Renewal, Replacement and Improvement Account, the General Reserve Account or the Impact Fee Account, and shall not include, for purposes of determining whether or not the City has met its rate covenant, or determining whether or not the City can meet the debt service coverage requirement with respect to the issuance of Additional Bonds, any City administrative expenses allocated to the System. "Impact Fees" means all non-refundable (except at the option of the City) capital recovery charges, pollution control fees, capacity charges and other similar fees and charges separately imposed by the City as a nonuser capacity charge for the proportionate share of the cost of expanding, oversizing, separating or constructing Improvements to the System and any investment earnings from the investment of funds on deposit in the Impact Fee Account, but excluding those charges imposed by the City on persons connecting to the System for the cost of physically connecting thereto, including but not limited to the costs of excavation, plumbing, installation of meters and landscaping. Rate Covenant The City has covenanted under the Resolution to fix, charge and collect reasonable rates and charges for the use of the services and facilities furnished by the System and that from time to time, and as often as it shall appear necessary, to adjust such rates and charges by increasing or decreasing the same or any selected categories of rates and charges so that the Net Revenues will be sufficient to provide an amount in each Fiscal Year at least equal to one hundred ten per centum (IIO%) of the Principal and Interest Requirements for such Fiscal Year on account of the Bonds then Outstanding and one hundred per centum (100%) of all amounts required to be deposited to the Reserve Account and the Renewal, Replacement and Improvement Account. The City has further covenanted under the Resolution that if in any Fiscal Year the Net Revenues shall be less than the amount required under the preceding paragraph, within 30 days of the receipt of the audit report for such Fiscal Year, the City shall employ a Rate Consultant to review and analyze the financial status of the System, to inspect the System and to submit, within 60 days thereafter, a written report to the City recommending revisions of the rates, fees and charges of the System and the methods of operation of the System that will result in producing the amount so required in the following Fiscal Year. Promptly upon its receipt of such recommendations, the City shall transmit copies thereof to the City Manager and shall revise its rates, fees and charges, or alter its methods of operation and take such other action as shall conform with such recommendations. If the City shall fail to comply with the recommendations of the Rate Consultant, the registered owners of not less than ten per centum (10%) in principal amount of all Bonds then Outstanding may institute and prosecute an action or proceeding in any court or before any board or commission having jurisdiction to compel the City to comply with the recommendations and the requirements ofthe Rate Consultant. If the City shall comply with all recommendations of the Rate Consultant in respect to its rates, fees, charges and methods of opemtion, the failure of Net Revenues to meet the above described requirements shall not constitute an Event of Default so long as the Revenues, together with available moneys in the funds and accounts under the Resolution, are sufficient to pay in cash the Current Expenses and to pay the Principal 7 and Interest Requirements on all Outstanding Bonds and other Utility Debt, except any Subordinated Indebtedness, for such Fiscal Year. Reserve Account General. The Resolution provides for the establishment and maintenance of a Reserve Account, and separate subaccounts within the Reserve Account for each Series of Bonds issued pursuant to the Resolution, in an amount (i) with respect to the 2005 Bonds, equal to the lesser of (a) 10% of the aggregate stated principal amount of the 2005 Bonds Outstanding, (b) the maximum amount of principal and interest scheduled to become due on the 2005 Bonds in the current or any succeeding Bond Year, or (c) 125% of the average annual debt service on the Outstanding 2005 Bonds (calculated on a Bond Year basis at the time of issuance only) and (ii) with respect to any Series of Additional Bonds, such funding requirement for the Reserve Account, if any, as shall be established in the Series Resolution for such Series of Additional Bonds (the "Reserve Account Requirement"). Moneys held for the credit of each subaccount in the Reserve Account shall be used for the payment of the interest on, the principal of and the Amortization Requirements for the Bonds for which such subaccount was established whenever and to the extent that moneys held for the credit of the Bond Service Subaccount or the Redemption Subaccount in respect of such Bonds shall be insufficient for such purpose. If at any time the moneys held for the credit of any such subaccount in the Reserve Account shall exceed the Reserve Account Requirement for the Series for which such subaccount in the Reserve Account was established, such excess shall be withdrawn and deposited to the credit ofthe Revenue Account. In lieu of the required deposit into the Series 2005 Reserve Subaccount, the City may, with the consent of any applicable issuer of a Credit Facility or Liquidity Facility then in effect, cause to be deposited into the Series 2005 Reserve Subaccount a Reserve Account Insurance Policy or Reserve Account Letter of Credit for the benefit of the Holders of the 2005 Bonds either in substitution for the full amount then on deposit therein, or in an amount equal to the difference between the amount required to be deposited in the Series 2005 Reserve Subaccount and the smn, if any, then on deposit in the Series 2005 Reserve Subaccount, which Reserve Account Insurance Policy or Reserve Account Letter of Credit shall be payable (upon the giving of notice as required thereunder) on any interest payment date on which a deficiency exists for the 2005 Bonds, which cannot be cured by moneys in any other fund or account held pursuant to the Resolution and available for such purpose. To the extent required by the issuer of a Reserve Account Insurance Policy or Reserve Account Letter of Credit, the City may enter into an agreement or agreements with a Depositary for the purpose of depositing such Reserve Account Insurance Policy or Reserve Account Letter of Credit with such Depositary and providing for utilization of proceeds of the Reserve Account Insurance Policy or Reserve Account Letter of Credit as provided in the Resolution. If any such Reserve Account Insurance Policy or Reserve Account Letter of Credit is substituted for moneys on deposit in the Series 2005 Reserve Subaccount, the excess moneys in the Series 2005 Reserve Subaccount shall be applied to satisfy any such deficiency in any of the funds or accounts under the Resolution, and any remaining balance shall be deposited in the General Reserve Account. The City has received a commitment from Ambac Assurance Corporation for the issuance of a Reserve Account Insurance Policy in connection with the 2005 Bonds, and expects that upon issuance of the 2005 Bonds the Reserve Account Requirement for the 2005 Bonds will be satisfied by the issuance of such Reserve Account Insurance Policy. See "Ambac Assurance Surety Bond" below for further information. Ambac Assurance Surety Bond. In connection with the issuance of the 2005 Bonds, the City will purchase a Reserve Account Insurance Policy in the form of a surety bond issued by Ambac Assurance for the purpose of providing coverage equal to the Reserve Account Requirement for the 2005 Bonds (herein, the" 2005Reserve Account Surety Bond"), which will be obtained by the City in lieu of any moneys required to be deposited in the subaccount within the Series 2005 Reserve Subaccount relating to the 2005 Bonds, in 8 an amount equal to the Reserve Account Requirement for the 2005 Bonds. The 2005 Bonds will only be delivered upon the issuance of the 2005 Reserve Account Surety Bond. The premium on the 2005 Reserve Account Surety Bond is to be fully paid at or prior to the issuance and delivery of the 2005 Bonds. The 2005 Reserve AccOlmt Surety Bond provides that upon the later of (i) one (1) day after receipt by Ambac Assurance of a demand for payment executed by the Bond Registrar certifying that provision for the payment of principal of or interest on the 2005 Bonds, when due has not been made or (ii) the interest payment date specified in the Demand for Payment submitted to Ambac Assurance, Ambac Assurance will promptly deposit funds with the Bond Registrar sufficient to enable the Bond Registrar to make such payments due on the 2005 Bonds, but in no event exceeding the Surety Bond Coverage, as defined in the 2005 Reserve Account Surety Bond. Pursuant to the terms of the 2005 Reserve Account Surety Bond, the Surety Bond Coverage is automatically reduced to the extent of each payment made by Ambac Assurance under the terms of the 2005 Reserve Account Surety Bond and the City is required to reimburse Ambac Assurance for any draws under the 2005 Reserve Account Surety Bond with interest at a market rate. Upon such reimbursement, the 2005 Reserve Account Surety Bond is reinstated to the extent of each principal reimbursement up to but not exceeding the Surety Bond Coverage. The reimbursement obligation of the City is subordinate to the City's obligations with respect to the Bonds. In the event that a portion of the Series 2005 Reserve Subaccount is funded with cash, any draw on the 2005 Reserve Account Surety Bond shall be made only after all cash in such subaccount is utilized. In the event that the amount on deposit in, or credited to, the Series 2005 Reserve Subaccount, in addition to the amount available under the 2005 Reserve Account Surety Bond, includes another Reserve Account Insurance Policy or Reserve Account Letter of Credit (the "Additional Funding Instrument"), draws on the 2005 Reserve Account Surety Bond and the Additional Funding Instrument shall be made on a pro rata basis to fund the insufficiency. The Resolution provides that the 2005 Reserve Subaccount shall be replenished in the following priority: (i) principal and interest on the 2005 Reserve Account Surety Bond and on any other Additional Funding Instrument shall be paid from first available Net Revenues on a pro rata basis; (ii) after all such amounts are paid in full, amounts necessary to fund the 2005 Reserve Subaccount to the required level, after taking into account the amounts available under the 2005 Reserve Account Surety Bond and any Additional Funding Instrument shall be deposited from the next available Net Revenues. The 2005 Reserve Account Surety Bond does not insure against nonpayment caused by the insolvency or negligence of the Bond Registrar. The insurance provided by the 2005 Reserve Account Surety Bond is not covered by the Florida Insurance Guaranty Association. See "FINANCIAL GUARANTY INSURANCE" below for information regarding Ambac Assurance. Flow of Funds Revenues will be collected by the City and deposited as received with a Depositary or Depositaries to the credit of the Revenue Account. All moneys in the Revenue Account shall be held by the City in trust and applied as follows: On or before the 20th day of each month, except as provided hereafter, the City shall withdraw an amount equal to the balance remaining in the Revenue Account, less an amount (to be held for the payment of Current Expenses) equal to the amount shown by the Annual Budget to be necessary for Current Expenses during the next two (2) ensuing months, and deposit the sum so withdrawn in the following order: 9 (a) to the credit of the Bond Service Subaccount of the Sinking Fund Account, an amount, together with any amount concurrently deposited therein from the Impact Fee Account, equal to one-sixth (l/6th) of the amount of interest payable on the Bonds of each Series on the next succeeding Interest Payment Date and equal to one-twelfth (l/12th) or, ifprincipal is payable semi-annually, one-sixth (l/6th), of the next maturing installment of principal on all Serial Bonds then outstanding; provided, however, that in each month intervening between the date of delivery of the 2005 Bonds, any Additional Bonds or any Refunding Bonds (beginning with the month following the month in which such delivery takes place) and the next succeeding Interest Payment Date and the next succeeding principal payment date, respectively, the amount specified in this subparagraph shall be that amount which when multiplied by the number of deposits to the credit of the Bond Service Subaccount required to be made during such respective periods as provided above will equal the amounts required (in addition to any amounts received as accrued interest or capitalized interest from the proceeds of such Bonds) for such next succeeding interest payment and next maturing installment of principal, respectively; and provided further that on or before the 15th day of the month preceding any Interest Payment Date or maturity date of Bonds, the required deposit to the Bond Service SubaccOllllt shall be the amount necessary, together with other amounts on deposit in such Subaccount, to provide for the interest and principal coming due on such Interest Payment Date or maturity date; (b) to the credit of the Redemption Subaccount of the Sinking Fund Account, an amount, together with any amount concurrently deposited therein from the Impact Fee Account, equal to one-twelfth (l/12th) or, if any Bonds are required to be retired semi-annually in satisfaction of the Amortization Requirements therefor, one-sixth (l/6th), of the principal amount of Term Bonds of each Series then outstanding required to be retired, in satisfaction of the Amortization Requirements, if any, for such Fiscal Year; provided that on or before the 20th day of the month preceding the due date of any Amortization Requirement, the required deposit to the Redemption Subaccount shall be the amount necessary, together with other amounts on deposit therein, to provide for such Amortization Requirement; (c) to the credit of the Reserve Account and the subaccounts therein, such amount, if any, of any balance remaining after making the deposit described in clauses (a) and (b) above (or the entire balance if less than the required amount) which will be required to make the amount deposited to the credit of the Reserve Account and the subaccounts therein in such month equal to the Reserve Account Deposit Requirement for all Bonds for such month. In the event the amount available to be deposited in the Reserve Account at any time is less than the Reserve Account Deposit Requirement for all Bonds at such time, the amount available shall be allocated among the various subaccounts having a Reserve Account Deposit Requirement pro rata, based upon the proportion that the Reserve Account Deposit Requirement for each subaccount bears to the total Reserve Account Deposit Requirements for all subaccounts; (d) to the credit of the Renewal, Replacement and Improvement Account, such amount, if any, of any balance remaining after making the deposits described in clauses (a), (b) and (c) above (or the entire balance if less than the required amount) as may be required to make the amount deposited in such month to the credit of the Renewal, Replacement and Improvement Account equal to one-twelfth (1/12th) of the difference between any lesser amount on deposit therein and the Renewal, Replacement and Improvement Account Requirement for such Fiscal Year; (e) to the credit of the Rate Stabilization Account, such amounts as shall be determined from time to time by the Commission for crediting thereto; (t) to the credit of any Arbitrage Rebate Fund, such amount as shall be determined from time to time by the Commission for crediting thereto; 10 (g) to the credit of the Subordinated Indebtedness Account, an amount, if any, of any balance remaining after making the deposits under clauses (a) through (f) above (or the entire balance ifless than the required amount) equal to the sum of one-twelfth (l/12th) ofthe principal of, redemption premium, if any, and interest coming due on any Subordinated Indebtedness during the next succeeding twelve month period and the amount, if any, required to be deposited in any special reserve subaccount established within the Subordinated Indebtedness Account as provided in the Resolution; and (h) to the credit of the General Reserve Account, the balance, if any, remaining after making the deposits described in clauses (a) through (g) above. If the amount deposited in any month to the credit of any of the Accounts mentioned in (a) through (h), inclusive, above shall be less than the amount required to be deposited therein under the Resolution, the requirement therefor shall nevertheless be cumulative and the amount of any deficiency in any month shall be added to the amount otherwise required to be deposited in each month thereafter until such time as all such deficiencies have been made up. General Reserve Account The General Reserve shall be disbursed as follows: (a) to pay the Cost of Improvements; (b) to purchase or redeem Bonds; (c) to make up deficiencies in any of the accounts and funds created by the Resolution; (d) to pay the Cost of any item qualifying as an authorized expenditure from the Renewal, Replacement and Improvement Account; (e) to make payments required under Interest Rate Swap agreements; and (f) for any lawful use of the City as directed by the City Commission. Issuance of Additional Bonds The City may issue Additional Bonds under and secured by the Resolution, on a parity as to the pledge of the Pledged Revenues with any other Bonds then Outstanding, provided that there shall be filed with the City a written statement or report, with respect to such Additional Bonds being issued to provide funds to pay the Cost of a Project, described in either (i) or (ii) below, or, with respect to Additional Bonds issued to pay debt service on Utility Debt, described in (ii) below: (i) prepared by the Consulting Engineers and demonstrating that the percentage derived by dividing the Net Revenues projected for the System, based upon assumptions approved in writing by each issuer of a Credit Facility after an opportunity to review and comment on such statement or report, for the Fiscal Year following the Fiscal Year in which the Completion Date of the Improvements to be financed by the Additional Bonds then to be delivered is expected to occur, as such Completion Date is established by the Consulting Engineers, adjusted as provided below, by the Maximum Principal and Interest Requirements, including the Principal and Interest Requirements with respect to the Additional Bonds then to be delivered, for any future Fiscal Year is not less than one hundred ten per centum (110%) or (ii) prepared by the Consulting Engineers, the Finance Director, the Accountant or the Rate Consultant and demonstrating that the percentage derived by dividing the Net Revenues for any period of twelve consecutive months selected by the City out of the twenty four months preceding the 11 delivery of such written statement or report, by the Maximum Principal and Interest Requirements, including the Principal and Interest Requirements with respect to the Additional Bonds then to be delivered, for any future Fiscal Year is not less than one hlUldred ten per centum (110%), provided, that for purposes of this clause (ii), Net Revenues consisting of Impact Fees and amounts transferred from the Rate Stabilization Account shall not account for more than 10% of the total Net Revenues. The period during which Net Revenues are determined is referred to as the "Measurement Period". In calculating Net Revenues for purposes of the preceding paragraph, the following adjustments to Net Revenues may be made: (I) If the City, prior to the issuance of the proposed Additional Bonds, shall have increased the rates, fees, rentals or other charges for the services of the System, the Net Revenues for the Measurement Period may be adjusted to show the Net Revenues which would have been derived from the System in such Measurement Period as if such increased rates, fees, rentals or other charges for the services of the System had been in effect during all of such Measurement Period. (2) If the City shall have acquired or has contracted to acquire any privately or publicly owned existing water system, sewer system or stormwater system, then the Net Revenues derived from the System during the Measurement Period may be increased by addition to the Net Revenues for the Measurement Period of the Net Revenues which would have been derived from said existing water system, sewer system or stormwater system if such existing water system, sewer system or stormwater system had been a part of the System during the Measurement Period. For the purposes of this paragraph, the Net Revenues derived from said existing water system, sewer system or stormwater system during the Measurement Period shall be adjusted by deducting the cost of operation and maintenance of said existing water system, sewer system or stormwater system from the gross revenues of said existing water system, sewer system or stormwater system in the same manner provided in the Resolution for the determination of Net Revenues, and adjusted in each case to reflect mlUlicipal ownership of such system. (3) If the City, in connection with the issuance of Additional Bonds, shall enter into a contract (with a duration not less than the final maturity of such Additional Bonds) with any public or private entity whereby the City agrees to furnish services in connection with any water system, sewer system or stormwater system, then the Net Revenues of the System during the Measurement Period may be increased by the least amount which said public or private entity shall guarantee to pay in anyone year for the furnishing of said services by the City, after deducting therefrom the proportion of operating expenses and repair, renewal and replacement cost attributable in such year to such services. Such payments shall be deemed to be Net Revenues of the System and pledged for the Bonds in the same manner as other Net Revenues of the System. (4) If the City covenants to levy Assessments or Impact Fees against property to be benefitted by the Improvements (which levy will be done in accordance with State law), the cost of which shall be paid from the proceeds of the proposed Additional Bonds and if in the case of Impact Fees, such Impact Fees are legally available for application with respect to such Additional Bonds as permitted under the Resolution, then the Net Revenues during the Measurement Period may be increased by an amount equal to one hundred per centum (100%) of the amount which the Consulting Engineer estimates will be received in each year from the levy of said Assessments or Impact Fees, as the case may be, within three years of the date of the sale of such Additional Bonds, said amount to be the total received from the installment payments on the Assessments or Impact Fees, as the case may be, plus, in the case of Assessments, any interest paid on the unpaid portion of the Assessments. In the case of Assessments, the estimate of the Consulting Engineer shall be based upon the preliminary assessment roll filed with the City prior to the construction of such Improvements. 12 (5) Should the City be constructing or acquiring additions, extensions or Improvements to the System from the proceeds of such Additional Bonds and if the City shall have established rates, fees, rentals or other charges to be charged and collected from users of such facilities when service is rendered, the Net Revenues for the Measurement Period may be adjusted to show the Net Revenues estimated by the Consulting Engineers or the Rate Consultant to be received from the users of the facilities to be financed, during the first full Fiscal Year of operation after completion of the construction or acquisition of said additions, extensions and improvements as if such rates, fees, rentals or other charges for such services had been in effect during all of such Fiscal Year. FINANCIAL GUARANTY INSURANCE General Ambac Assurance Corporation has issued its commitment to issue a financial guaranty insurance policy (the "Financial Guaranty Insurance Policy") insuring the payment of the principal of and interest on the 2005 Bonds simultaneously with the delivery of the 2005 Bonds. The following information has been furnished by Ambac Assurance Corporation ("Ambac Assurance" or the "Insurer") for use in this Official Statement. Reference is made to Appendix E for a specimen of the Insurer's policy. Payment Pursuant to Financial Guaranty Insurance Policy Ambac Assurance has made a commitment to issue the Financial Guaranty Insurance Policy relating to the 2005 Bonds effective as of the date of issuance of the 2005 Bonds. Under the terms of the Financial Guaranty Insurance Policy, Ambac Assurance will pay to The Bank of New York, New York, New York or any successor thereto (the "Insurance Trustee") that portion ofthe principal of and interest on the 2005 Bonds which shall become Due for Payment but shall be unpaid by reason of Nonpayment by the District (as such terms are defined in the Financial Guaranty Insurance Policy). Ambac Assurance will make such payments to the Insurance Trustee on the later of the date on which such principal and interest becomes Due for Payment or within one business day following the date on which Ambac Assurance shall have received notice of Nonpayment from the Bond Registrar and Paying Agent. The insurance will extend for the term of the 2005 Bonds and, once issued, cannot be canceled by Ambac Assurance. The Financial Guaranty Insurance Policy will insure payment only on stated maturity dates and on mandatory sinking fund installment dates, in the case of principal, and on stated dates for payment, in the case of interest. If the 2005 Bonds become subject to mandatory redemption and insufficient funds are available for redemption of all outstanding 2005 Bonds, Ambac Assurance will remain obligated to pay principal of and interest on outstanding 2005 Bonds on the originally scheduled interest and principal payment dates including mandatory sinking fund redemption dates. In the event of any acceleration of the principal of the 2005 Bonds, the insured payments will be made at such times and in such amounts as would have been made had there not been an acceleration. In the event the Bond Registrar has notice that any payment of principal of or interest on a 2005 Bond which has become Due for Payment and which is made to a 2005 Bondholder by or on behalf of the City has been deemed a preferential transfer and theretofore recovered from its registered owner pursuant to the United States Bankruptcy Code in accordance with a final, nonappealable order of a court of competent jurisdiction, such registered owner will be entitled to payment from Ambac Assurance to the extent of such recovery if sufficient funds are not otherwise available. 13 The Financial Guaranty Insurance Policy does not insure any risk other than Nonpayment, as defined in the Financial Guaranty Insurance Policy. Specifically, the Financial Guaranty Insurance Policy does not cover: 1. payment on acceleration, as a result of a call for redemption (other than mandatory sinking fimd redemption) or as a result of any other advancement of maturity. 2. payment of any redemption, prepayment or acceleration premium. 3. nonpayment of principal or interest caused by the insolvency or negligence of any trustee, if any, the Bond Registrar or Paying Agent. If it becomes necessary to call upon the Financial Guaranty Insurance Policy, payment of principal requires surrender of 2005 Bonds to the Insurance Trustee together with an appropriate instrument of assignment so as to permit ownership of such 2005 Bonds to be registered in the name of Ambac Assurance to the extent of the payment under the Financial Guaranty Insurance Policy. Payment of interest pursuant to the Financial Guaranty Insurance Policy requires proof of2005 Bondholder entitlement to interest payments and an appropriate assignment of the 2005 Bondholder's right to payment to Ambac Assurance. Upon payment of the insurance benefits, Ambac Assurance will become the owner of the 2005 Bonds, appurtenant coupon, if any, or right to payment of principal or interest on such 2005 Bonds and will be fully subrogated to the surrendering Bondholder's rights to payment. The insurance provided by the Financial Guaranty Insurance Policy is not covered by the Florida Insurance Guaranty Association. Ambac Assurance Corporation Ambac Assurance is a Wisconsin-domiciled stock insurance corporation regulated by the Office of the Commissioner ofInsurance of the State of Wisconsin and licensed to do business in 50 states, the District of Columbia, the Territory of Guam, the Commonwealth of Puerto Rico, and the u.s. Virgin Islands, with admitted assets of approximately $8,585,000,000 (unaudited) and statutory capital of approximately $5,251,000,000 (unaudited) as of March 31, 2005. Statutory capital consists of Ambac Assurance's policyholders' surplus and statutory contingency reserve. Standard & Poor's Credit Markets Services, a division of The McGraw-Hill Companies, Inc., Moody's Investors Service and Fitch Ratings have each assigned a triple-A financial strength rating to Ambac Assurance. Ambac Assurance has obtained a ruling from the Internal Revenue Service to the effect that the insuring of an obligation by Ambac Assurance will not affect the treatment for federal income tax purposes of interest on such obligation and that insurance proceeds representing maturing interest paid by Ambac Assurance under policy provisions substantially identical to those contained in its Financial Guaranty Insurance Policy shall be treated for federal income tax purposes in the same manner as if such payments were made by the Issuer of the 2005 Bonds. Ambac Assurance makes no representation regarding the 2005 Bonds or the advisability of investing in the 2005 Bonds and makes no representation regarding, nor has it participated in the preparation of, this Official Statement other than the information supplied by Ambac Assurance and presented under the headings and "FINANCIAL GUARANTY INSURANCE" and "SECURITY FOR THE 2005 BONDS- RESERVE ACCOUNT- AMBAC ASSURANCE SURETY BOND" herein. 14 Available Information The parent company of Ambac Assurance, Ambac Financial Group, Inc. (the "Company"), is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "SEC"). These reports, proxy statements and other information can be read and copied at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. The SEC maintains an internet site at http://www.sec.gov that contains reports, proxy and information statements and other information regarding companies that file electronically with the SEC, including the Company. These reports, proxy statements and other information can also be read at the offices of the New York Stock Exchange, Inc. (the "NYSE") at 20 Broad Street, New York, New York 10005. Copies of Ambac Assurance's financial statements prepared in accordance with statutory accounting standards are available from Ambac Assurance. The address of Ambac Assurance's administrative offices and its telephone number are One State Street Plaza, 19th Floor, New York, New York, 10004 and (212) 668- 0340. Incorporation of Certain Documents by Reference The following documents filed by the Company with the Commission (File No. 1-10777) are incorporated by reference in this Official Statement: I. The Company's Annual Report on Form 1 O-K for the fiscal year ended December 31, 2004 and filed on March 15,2005; 2. The Company's Current Report on Form 8-K dated April 5,2005 and filed on April 11 , 2005; 3. The Company's Current Report on Form 8-K dated and filed on April 20, 2005; 4. The Company's Current Report on Form 8-K dated May 3, 2005 and filed on May 5,2005; 5. The Company's Quarterly Report on Form 1O-Q for the fiscal quarterly period ended March 31,2005 and filed on May 10,2005. All documents subsequently filed by the Company pursuant to the requirements of the Exchange Act after the date of this Official Statement will be available for inspection in the same manner as described above under the heading "Available Information." 15 ESTIMATED SOURCES AND USES OF FUNDS SOURCES OF FUNDS: Principal Amount of 2005 Bonds Net Original Issue PremiumlDiscount Available City Funds (I) TOTAL SOURCES: USES OF FUNDS: Deposit to Escrow Deposit Trust Fund Costs of Issuance(2) TOTAL USES: (I) Consists of amounts transferred from 1996 Reserve Subaccount and Bond Service Subaccount under the Resolution. Includes, among other things, underwriter's discount, counsel fees, registrar fees and bond insurance and reserve surety premiums. (2) 16 DEBT SERVICE REQUIREMENTS The following table sets forth the debt service requirements for the outstanding 2002 Bonds and the 2005 Bonds: Total Debt Service Total Bond Year on Outstanding Annual ending 1996 and 2002 2005 Bonds 2005 Bonds Debt Service November I Bonds Principal Interest on Bonds 2006 $2,573,482.50 2007 3,813,835.00 2008 1,417,400.00 2009 1,416,650.00 2010 1,415,650.00 2011 1,414,400.00 2012 1,417,900.00 2013 3,670,900.00 2014 3,676,900.00 2015 3,670,643.76 2016 3,672,400.00 2017 3,672,850.00 2018 3,669,775.00 2019 3,672,900.00 2020 3,671,400.00 TOTAL $ $ $ $ (I) Based on Net Revenues for Fiscal Year ended September 30,2004. THE SYSTEM General The City provides water and wastewater services to a geographic area within Palm Beach County about twice the size of the City itself. The City's water system includes facilities for raw water supply, water treatment and water distribution. The City's wastewater system includes sewage collection and transmission. The City also provides stormwater services within the City limits for all City-owned roadways, facilities and canals. Service Area The System serves the City, the Town of Briny Breezes, a portion of the Town of Hypoluxo and several unincorporated areas of Palm Beach County. The Town of Ocean Ridge, which is geographically within the City's service area is also served by the City's water system, but has no sanitary sewers and relies on a combination of septi c tanks and small neighborhood package plants for wastewater treatment. The City also provides wastewater collection service to the Village of Golf, but provides no water service. The City 17 may extend its boundaries in the future through annexation of unincorporated areas of Palm Beach County, which primarily lie to the west of existing City limits. Because most of the areas that may be annexed are already encompassed by the water and wastewater service areas and connected to the water and wastewater systems, annexation is not expected to have a significant effect on water and wastewater service demands, even though the 25% rate surcharge currently imposed by the City with respect to service provided outside the City limits would no longer apply to areas annexed by the City. Stormwater services is limited strictly to the area within the City limits. Condition of the Overall System and System Performance The City believes that the production, transmission, distribution, treatment and collection facilities of the System are in good condition, well operated and maintained in accordance with usual utility practice and can reasonably be expected to provide adequate and reliable service to meet the existing requirements of the System In addition, the City believes that plant staffing is at a reasonable level and that staff is receiving adequate training for operation of the System. Administration The City's Water and Sewer Utilities Department is divided administratively into ten divisions, consisting of an administrative division and nine operating divisions. The Department is responsible for the operation and maintenance of the water supply, treatment, distribution and storage facilities, wastewater collection, pumping and transmission and stormwater system operations. Wastewater treatment facilities are operated and maintained under the South Central Regional Wastewater Treatment and Disposal Board. The Department operates its own billing system, with revenue collections handled by the City's Finance Department. Water System The water system operated by the City consists of groundwater withdrawal, treatment, transmission, storage, distribution, administration, and operations. Treatment Plants and Well Fields. The City has two water treatment plants. One plant, known as the East Water Treatment Plant (the "East WTP"), is capable of operating at a maximum daily rate of 12.00 MGD. The East WTP treats the surficial groundwater withdrawn from the East Well Field. The plant's facilities are capable oftreating 20.5 MGD, but the plant's rating is limited to 12.00 MGD because of limited raw water supply. The City's water system uses groundwater withdrawn from the surficial aquifer to supply water to its treatment system. Currently, only the East Well Field, which comprises 19 active production wells, is used to supply water to the East WTP. The City also operates one aquifer storage and recovery (ASR) well at the East WTP, and is constructing a second ASR well, to store surplus water in the upper Florida aquifer. The other treatment plant, known as the "West Water Treatment Plant" (the "West WTP") provides 8.5 MGD of finished water through the use of a nannofiItration membrane process, with up to 1.6 MGD additional available by blending filtered water with the finished nannofiltration product. The City has also begun design for an expansion of the West WTP to increase capacity. As part ofthis expansion, equipment for three new raw water wells has been added. 18 Water supply for the West WTP comes from the West Well Field immediately west of the West WTP. The West Well Field includes ten wells. Only seven of the wells are needed for the 8 MGD capacity of the West WTP. As the West WTP expands beyond its current capacity, the remainder of the wells in the West Well Field will be utilized Water Distribution and Storage. The water distribution system covers the entire water service area. Approximately 280 miles of piping comprise the system, ranging in size from 2 inches to 42 inches in diameter. The storage capacity within the system includes one 1.5-MG elevated storage tank, a 1A-MG clear well at the East WTP, a 1.0-MG and two 3.0-MG ground storage tanks. The 1.5 MG elevated storage tank is located immediately south of the East WTP. Regulatory Framework and Compliance. The City operates the water system in such a manner that all local, state and federal regulations are met. The City believes that the System will be able to meet all existing and currently proposed regulatory standards. The groundwater supply is regulated by the South Florida Water Management District ("SFWMD") which regulates the withdrawal of water from the City's well fields. The City does not anticipate any inability to legally obtain sufficient water with which to satisfy demand for the foreseeable future, although drought conditions occur in the geographical area within which the City is located periodically, and one way in which SFWMD protects the water supply in such conditions is by limiting the amount of water municipalities may withdraw. When such limitations are imposed, the City in turn takes steps to reduce water usage, such as through public awareness campaigns and by imposing limitations on irrigation; these steps do reduce the amount of water usage, and they also reduce the Revenues ofthe System. The City will use both ASR wells during drought or dry weather conditions to supplement supply from the surficial aquifer. Capital Improvements. The City finished a capital improvement project to the East WTP in 1993 that renovated or replaced facilities which were not working properly or had become outdated. The City continues a maintenance program that keeps existing facilities in proper operating condition. The City currently has several capital expansion or improvement projects planned for the next ensuing five year period. These projects include approximately $78,000,000 of capacity related improvements to the water system, approximately $17,000,000 of non-capacity related water system improvements, approximately $37,000,000 of wastewater improvement projects and approximately $13,000,000 of stormwater improvement projects. The sources of funding for these improvements have not been identified, and could include existing cash reserve/operating funds and/or additional debt. Wastewater System In 1974, the City entered into an interlocal agreement with the adjacent City of Del ray Beach, Florida (the "Interlocal Agreement") for the provision of wastewater treatment, sludge disposal and effluent disposal on a regional level. The Interlocal Agreement creates a legal entity known as the South Central Regional Wastewater Treatment and Disposal Board, composed of the five members of the respective City Commissions of the two cities, who operate the South Central Regional Wastewater Treatment Plant (the "Plant") through an executive director. Pursuant to the Interlocal Agreement, the two cities own the Plant located within the corporate limits of the City of Delray Beach. Wastewater Collection and Transmission. The existing wastewater collection and transmission system consists of approximately 221 miles of gravity sewer, 67 miles of force main, and 150 lift stations. The predominant pipe materials are vitrified clay for gravity sewers and ductile iron for force mains. A hydraulic analysis ofthe system performed for the master plan in 1989 showed that the wastewater collection 19 and transmission system appears to be sufficiently sized to meet projected future flows in most areas. Recently some localized improvements have been included in the capital improvement program to allows for increased densities in the City's downtown area. However, several improvements are needed to maintain the system in good condition. These include replacement of 28 pumps per year throughout the System and rehabilitation of pumps, electrical equipment and wet well coatings, concrete, and surfaces at six master lift stations. The City is also installing additional stationary generators at 5 lift stations to maintain operation during power outages or emergencies, thereby improving system reliability. Regulatory Framework and Compliance. The City operates the wastewater system in such a manner that all local, state and federal regulations are met. The City believes that the System will be able to meet all existing and currently proposed regulatory standards. Stormwater System In 1993 the City formed a Stormwater Utility for the purpose of operating and maintaining the existing stormwater system, and also to make the necessary improvements required by projected water quality discharge standards. It has recently developed a regional stormwater detention facility in the downtown area, and has been and will be expanding or improving stormwater facilities throughout the service area. The system currently comprises stormwater detention ponds, roadside swales, and underground pIpmg. Pursuant to the Resolution, in 1996 the stormwater utility, including all of its assets, liabilities and revenues, became a part of the combined water, wastewater and stormwater System. Rates and Customer Base The City believes that the rates it charges for the services provided by the System are reasonable and comparable to rates charges by similarly situated municipal utilities located in South Florida. In addition, the City believes that it has a diverse customer base, with no material reliance upon any customer, or small group of customers, for a material amount of the System revenues. The methods used in developing the City's water, sewer and stormwater utility rates adhere to generally accepted methodologies, policies and procedures and result in a corresponding rate structure that generates sufficient revenues to maintain a self-supporting utility. The rates do not unduly discriminate toward any class of customer. Revenue requirements are often unique to a given utility. In all cases, conformance to bond covenants and regulatory constraints provides one measure of revenue sufficiency. Also, it is the City's goal with respect to the System to avoid operating losses, as measured by cash flow. Excluded from the cash flow test are major capital projects to be funded through debt. Minor capital outlays and renewal and replacement are generally included, reflecting the ongoing nature of some capital outlays. The water, wastewater and stormwater activities, currently commingled within the same fund for budgeting purposes, were treated as three distinct and separate funds for analysis. In so doing, a proper matching of revenues and expenditures was developed for all three activities. The water rate structure incorporates an inverted rate mechanism in the volumetric charge. As water use increases, the cost per thousand gallons increases, the intent of which is to encourage conservation. Due to water supply problems in the State of Florida, many municipal utilities are required by permit condition of the water management districts to adopt conservation techniques such as the one enacted by the City. 20 The City Commission has exclusive authority to establish and revise the rates. The City cannot predict what future action, if any, will be taken by the Commission with respect to the current rates or the current rate structure. Historical Revenues Shown below is a summary of the historical "Revenues," "Current Expenses" and "Net Revenues" of the System, calculated in compliance with the requirements of the Resolution described under "Security for the 2005 Bonds-Rate Covenant" above, for the following fiscal years ended September 30: REVENUES()) Water Sales Sewer Service Stormwater Utility Fees Interest Income Miscellaneous Income(2) TOTAL REVENUES 2002 2003 2004 $ 10,201,169 $ 10,888,665 $ 11,712,636 11,204,950 11,261,264 11,665,629 3,406,276 3,144,092 3,194,392 2,364,611 1,725,957 858,044 483,291 481,215 129,652 $ 27,660,297 $ 27,501,193 $ 27,560,353 $ 14,395,176 $ 15,185,354 $ 19,574,242 $13,265,121 $ 12,315,839 $ 7,986,111 $ 4,085,000 $ 4,085,000 $ 4,085,000 CURRENT EXPENSES NET REVENUES MAXIMUM ANNUAL DEBT SERVICE OF THE UNREFUNDED 1996 BONDS, 2002 BONDS AND 2005 BONDS(3) 3.24x 3.01x 1.95x PROFORMA COVERAGE IMPACT FEES(4) $2,841,673 $3,253,621 $2,645,716 (3) Source: City of Boynton Beach Department of Finance (I) Does not include hnpact Fees or interest earnings on Construction Fund. See "Impact Fees" below. (2) Miscellaneous Income includes: Interest deposits, Bell South lease, utility tax administrative fee and discounts. Based upon actual debt service for Unrefunded 1996 Bonds and 2002 Bonds and estimated debt service for 2005 Bonds as provided by the financial advisor. Preliminary and subject to change. Consists of total Impact Fees. Approximately 56% of debt service on 2002 Bonds and 30.78% of debt service on 2005 Bonds may lawfully be paid from hnpact Fees. (4) The increase in current expenses from 2002 to 2004 is attributable to general increases in costs of goods and services and in 2004 there were also two non-recurring expenses: (i) a charge to the System in the amount of approximately $ 1.2 million to fund a contribution to the City's self-insurance fund in an amount deemed by the City to reflect the Utility System's fair-share of the cost of the City's self-insurance, and (ii) a non-cash charge of approximately $900,000 to reflect a change in the value of the City's ownership interest of the wastewater Plant. 21 Impact Fees Impact Fees are one time payments made by new customers at the time a unit is connected to the System. The Impact Fee rates are designed to ensure that each new customer connecting to the System will pay a fair share of the costs incurred by the City in constructing the facilities needed to serve such new customers. The amount of the Impact Fee per equivalent connection or dwelling unit paid by the new customer will be the one that is in effect at the time of connection to the System. Judicial rulings in the State of Florida have determined that hnpact Fees may be imposed and expended only to cover the expansion of a utility system that is necessary to service new customers. As a result, the City is of the opinion that hnpact Fees can be used to pay debt service only to the extent that such payments reflect costs incurred to expand the System to service new customers. The City has determined that approximately 30.78% of the proceeds of the 1996 Bonds were attributable to the expansion of the System and that, therefore, 30.78% of the debt service on the portion of the 2005 Bonds may be paid from hnpact Fees. Approximately 56% of the debt service on the Series 2002 Bonds may ;awfully be paid from impact fees. For the Fiscal Year ended September 30, 2004, the City collected $$2,645,716 in hnpact Fees. System Customers As of December, 2004, the System provided water service to approximately 31,000 residential accounts, comprised of over 50,000 residential units, and over 1600 commercial accounts, sewer service to approximately 30,000 residential accounts, comprised of approximately 49,000 residential units, and approximately 1500 commercial accounts, and stormwater service to 2 I ,000 accounts. THE CITY The City is a municipal corporation with an estimated population of approximately 62,000 organized and existing under the laws of the State of Florida. The City is located in Palm Beach County approximately 13 miles south of West Palm Beach and 30 miles north of Fort Lauderdale and covers approximately 15 square miles. The City is governed by a Commission-Manager form of government and employs both a fuIl- time city manager and a full-time director of finance, who has responsibility for all internal auditing and financial record keeping operations of the City. The major segments of the economy of the area are retail and wholesale trade, real estate, finance, tourism, agriculture, professional services and light manufacturing. Several light industries are located in the City of Boynton Beach, with manufactured products ranging from paper processing machinery to electrical switches. For additional information regarding the City, see "Appendix A -- Statistical and Other General Information Concerning the City of Boynton Beach." VERIFICATION OF MATHEMATICAL COMPUTATIONS The accuracy of (i) the mathematical computation of the adequacy of the maturing principal amount of and interest on the investments and cash, if any, to be held by the Escrow Agent to pay, when due, the principal of, premium and interest on the Refunded Bonds to the dates of their maturities or earlier redemption and (ii) the mathematical computation of yields on the 2005 Bonds and the proceeds thereof will be verified by Causey, Demgen & Moore Inc., independent certified public accountants, whose report with respect thereto will be available upon delivery of the 2005 Bonds. 22 TAX EXEMPTION The Internal Revenue Code of 1986, as amended (the "Code"), provides that the interest on state and local governmental bonds will not be included in the gross income for federal income tax purposes of the owner thereof only if certain requirements are met, some of which must be met on a continuing basis, subsequent to the issuance and delivery of the 2005 Bonds. Although the City has covenanted to comply with such requirements, noncompliance with such requirements could cause the interest on the 2005 Bonds to be included in gross income for federal income tax purposes retroactive to the date of issue of the 2005 Bonds regardless of the date on which such noncompliance occurs or is ascertained. Those requirements include, but are not limited to, provisions which prescribe yield and other limits within which the proceeds of the 2005 Bonds and other amounts are to be invested and which require that certain investment earnings on the foregoing be rebated on a periodical basis to the Treasury Department of the United States. The ability of Bond Counsel to deliver its final approving opinion in substantially the form attached hereto as Appendix D on the date of issuance of the 2005 Bonds is subject to its review and analysis as of the date of issuance of certain matters, including, among others, pertinent provisions of statutes, regulations, rulings and court decisions, including, but not necessarily limited to, Florida law and federal income tax then in effect or proposed to be in effect. Bond Counsel has advised the City and the Underwriter that, subject to its review and analysis of certain assumptions, its expects to be able to issue on the closing date an opinion substantially in the form attached hereto as Appendix D. In the opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Bond Counsel, under existing law, and assuming continuing compliance with the aforementioned covenants, interest on the 2005 Bonds is excluded from gross income of the owners thereof for federal income tax purposes and is not an item of tax preference for purposes of the Federal alternative minimum tax imposed on individuals and corporations. [The 2005 Bonds maturing in the years _ through _ are being offered and sold in the initial public offering at an original issue discount ("DID"). DID is the difference between the stated redemption price at maturity (generally the face amount of the 2005 Bonds) and the "issue price" of the 2005 Bonds. The "issue price" of each maturity of the 2005 Bonds is the respective initial offering prices to the public at which prices a substantial amount of such maturity of the 2005 Bonds was sold. DID represents interest which is excluded from gross income for federal income tax purposes and which may result in the collateral federal tax consequences described below. DID will accrue over the term of such 2005 Bonds at a constant interest rate compounded semi-annually. The portion of DID that accrues during the time an Owner owns a 2005 Bond constitutes interest excludable from gross income for federal income tax purposes and will increase such purchaser's adjusted basis in such 2005 Bonds for purposes of determining taxable gain or loss on the sale or other disposition of such 2005 Bonds. The federal income tax consequences of the purchase, ownership and sale or other disposition of 2005 Bonds which are not purchased in the initial offering at the initial offering prices may be determined according to rules which differ from those described above. Holders of 2005 Bonds should consult their own tax advisors as to the precise federal income tax and state and local tax consequences of owning and disposing of 2005 Bonds.] [The 2005 Bonds maturing in the years are being offered and sold in the initial public offering at a premium (the "Premium Bonds"). Section 171 of the Code provides rules under which a bond premium may be amortized and a deduction allowed for the amount of the amortizable bond premium for a taxable year. Under Section 1 71(a)(2) of the Code, however, no deduction is allowable for the amortizable bond premium in the case ofthe bonds, like the Premium Bonds, the interest on which is excludable from gross income. Under Section 1016(a)(5) of the Code, the purchaser's basis in a Premium Bond will be 23 reduced by the amount of the amortizable bond premium disallowable as a deduction under Section 171 (a )(2) of the Code. Proceeds received from the sale, exchange, or other disposition including redemption of a Premium Bond in excess of the owner's adjusted basis (as reduced pursuant to Section 1016(a)(5) of the Code) will be treated as a gain from the sale or exchange of such Premium Bond and not as tax-exempt interest. The basis of an original purchaser of a Premium Bond who holds such Premium Bond to maturity will have a basis equal to the principal amount of the Premium Bond and therefore will have no loss upon receipt of such principal amount.] Except as stated above, Bond Counsel expresses no opinion as to any other tax consequences of acquiring, carrying, owning or disposing of the 2005 Bonds. The law upon which Bond Counsel will base their opinion is subject to change by the Congress and the Department of the Treasury and to subsequent judicial and administrative interpretation. There can be no assurance that such law or the interpretation thereof will not be changed in a manner which would adversely affect the tax treatment of ownership of the 2005 Bonds. Prospective purchasers of the 2005 Bonds should be aware that the ownership of tax-exempt obligations may result in collateral federal income tax consequences to financial institutions, property and casualty insurance companies, individual recipients of Social Security or Railroad Retirement benefits, taxpayers who may be deemed to have incurred or continued indebtedness to purchase or carry tax-exempt obligations, foreign corporations doing business in the United States and S corporations with passive investment income which includes tax exempt income. Prospective purchasers falling within any of these categories should consult their own tax advisors as to the applicability of these consequences. In addition, in the opinion of Bond Counsel, the 2005 Bonds are exempt from all present intangible personal property taxes of the State of Florida. LITIGATION In the opinion of the City Attorney, no legal proceedings are pending or threatened which materially affect the City's ability to perform its obligations to the holders of the 2005 Bonds or materially affect the financial condition of the City. There is no litigation or controversy of any nature now pending or threatened: (i) to restrain or enjoin the issuance, sale, execution or delivery of the 2005 Bonds, or (ii) in any way questioning or attesting the validity of the 2005 Bonds, the Resolution, any proceedings of the City taken with respect to the authorization, sale or issuance of said Bonds or the pledge or application of any moneys provided for the payment of the 2005 Bonds. COVENANTS CONCERNING ONGOING DISCLOSURE The City has agreed in the Resolution, in accordance with the provisions of Rule 15c2-12 in effect from time to time and applicable to the 2005 Bonds (the "Rule"), promulgated by the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, to provide or cause to be provided, to each nationally recognized municipal securities information repository ("NRMSIR") and to the State of Florida information depository ("SID"), if any, in each case as designated and approved by the Cormnission and the State, respectively, in accordance with the Rule, (i) within 180 days following the end of each fiscal year of the City, commencing with the fiscal year ending September 30, 2005, annual 24 financial information and operating data concerning the System of the type included in this Official Statement, including operating revenues, debt service coverage by Net Revenues, a summary of any capital improvement plans and information regarding permitted capacities and actual usage of capacities of the System and financial statements (audited or, ifnot available, unaudited) of the City and (ii) ifnot submitted as part of such fmancial information and operating data, then, when available, audited financial statements for the City prepared in accordance with generally accepted accounting principles applicable to governmental entities from time to time. A copy of such annual financial information and operating data will be provided to the Underwriter, the Insurer and the Bond Registrar. (The annual information required to be disclosed hereunder shall be referred to herein as the "Annual Report"). The City has agreed to provide or cause to be provided, in a timely manner, to (i) each NRMSIR or to the Municipal Securities Rulemaking Board ("MSRB") and (ii) the SID, if any, notice of the occurrence of any of the following events with respect to the 2005 Bonds, if such event is material: (i) principal and interest payment delinquencies on the 2005 Bonds; (ii) non-payment related defaults; (iii) unscheduled draws on debt service reserves reflecting financial difficulties; (iv) unscheduled draws on credit enhancements reflecting financial difficulties; (v) substitution of credit or liquidity providers, or their failure to perform; (vi) adverse tax opinions with respect to or events affecting the tax-exempt status of the 2005 Bonds; (vii) modifications to rights of the holders of the 2005 Bonds; (viii) any call of the 2005 Bonds for redemption (other than scheduled mandatory redemption) or any acceleration of the maturity thereof; (ix) defeasance in whole or in part of the 2005 Bonds; (x) release, substitution, or sale of property securing repayment of the 2005 Bonds; (xi) rating changes; and (xii) any changes in the City's fiscal year. The City has agreed to provide or cause to be provided, in a timely manner, to (i) each NRMSIR or the MSRB and (ii) the SID, if any, notice of a failure by the City to provide the Annual Report described in subsection (a) above on or prior to the date set forth therein. The City has reserved the right to terminate its obligation to provide Annual Report and notices of material events, as set forth above, if and when the City no longer remains an obligated person with respect to the 2005 Bonds within the meaning of the Rule. If the City believes such condition exists, the City will provide notice of such termination to the NRMSIR's, the MSRB and the SID. 25 The City has agreed that its undertaking pursuant to the Rule set forth is intended to be for the benefit ofthe holders and beneficial owners ofthe 2005 Bonds and shall be enforceable by any holder or beneficial owner; provided that the right to enforce the provisions of such undertaking shall be limited to a right to obtain specific enforcement of the City's obligations hereunder and any failure by the City to comply with the provisions of such undertaking shall not be an event of default with respect to the 2005 Bonds under the Resolution. Any voluntary inclusion by the City of information in its Annual Report of supplemental information that is not required under the Rule shall not expand the obligations of the City thereunder and the City shall have no obligation to update such supplemental information or include it in any subsequent report. The covenants contained in the Resolution are solely for the benefit of the holders and beneficial owners of the 2005 Bonds and shall not create any rights in any other parties. Notwithstanding any other provision of the Resolution, the City may amend the provisions of the Resolution described above and any provision thereof may be waived, provided that the following conditions are satisfied: (1) If the amendment or waiver pertains to the Annual Report or other information to be provided by the City, the amendment or waiver is made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identifY, nature or status of the City or the type of business conducted by the City; and (2) The undertaking, as amended or taking into account such waiver would, in the opinion of nationally recognized bond counsel, have complied with the requirements of the Rule at the time of the original issuance of the 2005 Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances. (3) The amendment or waiver does not materially impair the interests of holders of and beneficial owners as determined either by parties unaffiliated with the City or an obligated person, or by an approving vote of the holders of at least a majority in aggregate principal amount of the then outstanding 2005 Bonds pursuant to the terms of the Resolution. In the event of any amendment or waiver of a provision of the Resolution described in this section, the City shall describe such amendment or waiver in the next Annual Report, and shall include, as applicable, a narrative explanation of the reason for the amendment or waiver and its impact on the type (or, in the case of a change of accounting principles, on the presentation) of annual financial information or operating data being presented by the City. In addition, if the amendment or waiver relates to the accounting principles to be followed in preparing financial statements (i) notice of such change shall be given in the manner provided in the Resolution and (ii) the Annual Report for the year in which the change is made shall present a comparison (in narrative form and also, if feasible, in quantitative form) between the fmancial statements as prepared on the basis of the new accounting principles and those prepared on the basis of the former accounting principles. The City has complied with all of its continuing disclosure undertakings in connection with its previous bond issues. 26 UNDERWRITING The Underwriter, Bear, Steams & Co. me., has agreed to purchase the 2005 Bonds from the City at an aggregate purchase price of$ (representing the $_,_,000.00 aggregate principal amount of the 2005 Bonds less an underwriter's discount of $ plus a net original issue premiumldiscount of $ ). The Underwriter will be obligated to purchase all the 2005 Bonds if any are purchased. The offering prices shown on the cover of this Official Statement may be changed from time to time by the Underwriter. RATINGS Moody's Investors Service ("Moody's") and Standard and Poor's Ratings Services, a division of The McGraw-Hill Companies ("S&P") are expected to assign to the 2005 Bonds their municipal bond ratings of Aaa and AAA, respectively, with the understanding that upon delivery of the 2005 Bonds, a policy insuring the payment when due of the principal of and interest on the 2005 Bonds will be issued by Arnbac Assurance Corporation. The ratings assigned to the 2005 Bonds by any rating agency reflect only the views of the rating agency, and an explanation of the significance of the ratings may be obtained only from the rating agency. The ratings are not a recommendation to buy, sell or hold the 2005 Bonds and there is no assurance that such ratings will remain in effect for any given period of time or that they will not be revised downward or withdrawn entirely if, in the judgment of the rating agency, circumstances so warrant. Any downward revision or withdrawal of such ratings may have an adverse effect on the market price of the 2005 Bonds. Neither the Underwriter nor the City have undertaken responsibility to bring to the attention of the holders of the 2005 Bonds any proposed revision or withdrawal of the ratings of the 2005 Bonds, or to oppose any proposed revision or withdrawal. LEGALITY Certain legal matters in connection with the issuance of the 2005 Bonds are subject to the approval of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Bond Counsel, whose unqualified approving opinion will be available at the time of delivery of the 2005 Bonds. The proposed form of such opinion of Bond Counsel is attached hereto as Appendix D. Certain legal matters will be passed upon for the City by Goren, Cherof, Doody & Ezrol, P.A., City Attorneys, Fort Lauderdale, Florida and for the Underwriter by its counsel, Edwards & Angell, LLP, West Palm Beach, Florida. EXCERPTS FROM COMPREHENSIVE ANNUAL REPORT The audited general purpose financial statements of the City and the combining statements for the City's enterprise fund for the fiscal year ended September 30, 2004 are included in Appendix B attached hereto. Such excerpts from the City's Comprehensive Annual Financial Report, including the auditor's report, have been included in this Official Statement as public documents and consent from the auditors was not requested. MISCELLANEOUS The information in the foregoing pages is presented for the guidance of prospective purchasers of the 2005 Bonds described herein. The infonnation has been compiled from official and other sources and, while not guaranteed as to accuracy by the City, is believed to be correct. So far as any statements made in this Official Statement and the appendices attached hereto involve matters of opinion or of estimates, whether 27 or not expressly stated, they are set forth as such and not as representations offact, and no representation is made that any of the estimates will be realized. AUTHORIZATION OF OFFICIAL STATEMENT This Official Statement has been authorized and prepared by the City of Boynton Beach, Florida. CITY OF BOYNTON BEACH, FLORIDA Mayor 28 EXHIBIT "D" Escrow Deposit Agreement G:\02345\37 Utility 2005\reso(4).wpd ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT (this" Agreement"), is dated August ,2005, 2005, and is by and between CITY OF BOYNTON BEACH, FLORIDA, a political subdivision of the State of Florida (the "Issuer") and THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association (the "Bank"), as escrow agent (the "Escrow Agent"). WIT N E SSE T H: WHEREAS, the Issuer has heretofore issued $23,070,000 in aggregate principal amount of its Utility System Revenue Bonds, Series 1996, dated July 1, 1996 (the "1996 Bonds"); and WHEREAS, the Issuer has determined to provide for the payment of all of the 1996 Bonds maturing on and after November 1, 2007 (the "Defeased Bonds") by providing for the deposit of certain moneys with the Escrow Agent hereunder; and WHEREAS, a portion of the moneys deposited with the Escrow Agent for such purpose may be applied to the purchase of certain direct obligations of the United States of America ("Government Obligations"); and WHEREAS, in order to provide for the proper and timely application of the moneys deposited in the trust created herein to the payment of the Defeased Bonds, it is necessary for the Issuer to enter into this Escrow Deposit Agreement with the Escrow Agent on behalf of the holders from time to time of the Defeased Bonds; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein set forth and in order to secure the payment of the principal of, premium, and interest on the Defeased Bonds, according to their tenor and effect, the Issuer does by these presents hereby deliver to and give, grant, assign and pledge to the Escrow Agent and to its successors in the trust hereby created, and to it and its assigns forever, all and singular the property hereinafter described, to wit: I. All right, title, and interest of the Issuer in and to $ on behalf of the Issuer with the Escrow Agent hereunder. to be deposited by or II. All right, title, and interest of the Issuer in and to any Government Obligations purchased from the moneys described in Clause I above. III. All right, title, and interest of the Issuer in and to all cash balances held from time to time hereunder and all income and eamings derived from or accruing to any Government Obligations described in Clause II above. IV. All (i) property which is by the express provisions of this Agreement required to be subject to the pledge hereof and (ii) additional property of every kind and nature that may, from time to time hereafter, by delivery or by writing of any kind, be conveyed, pledged, assigned, or transferred as and for additional security hereunder or to be subject to the pledge hereof, by the Issuer or by anyone in its behalf, and the Escrow Agent is hereby authorized to receive the same at anytime as additional security hereunder, provided that no property described in (ii) shall be accepted by the Escrow Agent unless the Escrow Agent shall receive an opinion of nationally recognized bond counsel selected by the Issuer to the effect that such acceptance will not cause the interest on the Defeased Bonds to be included in the gross income of the holders thereof for federal income tax purposes. TO HAVE AND TO HOLD, all and the same; in trust nevertheless, upon the terms herein set forth, for the equal and proportionate benefit, security and protection, as herein described, of the holders or owners from time to time of the Defeased Bonds in the manner herein provided; but if the Defeased Bonds shall be fully and promptly paid when due or redeemed on their dates of scheduled maturity or mandatory redemption in accordance with the terms thereof and hereof, then this Agreement shall be and become void and of no further force and effect, otherwise the same shall remain in full force and effect, and subject to the covenants and conditions hereinafter set forth. ARTICLE I DEFINITIONS Section 1.01. Dermitions. All terms used in capitalized form herein and not otherwise defined herein shall have the meanings ascribed to them in the Bond Resolution. In addition to words and terms elsewhere defined in this Agreement, as used herein, unless some other meaning is plainly intended, the following terms and phrases shall have the following meanings: "Bond Resolution" means Resolution No. 92-96 of the Issuer adopted June 16, 1992, as amended and supplemented, particularly by Resolution No. R96-88, adopted June 18, 1996, authorizing the issuance of the Defeased Bonds. "Escrow Deposit Trust Fund" means the fund so designated and established under Section 2.01 of this Agreement. "Government Obligations" means direct obligations of the United States of America that are not callable prior to maturity by the obligor thereon. 2 "1996 Bond Registrar" means The Bank of New York, as bond registrar for the Defeased Bonds. Section 1.02. Uses of Phrases. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, words importing the singular number shall include the plural number and VIce-versa. ARTICLE II ESTABLISHMENT OF FUNDS: FLOW OF FUNDS Section 2.01. Creation of Escrow Deposit Trust Fund. There is hereby created and established with the Escrow Agent a special and irrevocable trust fund designated the "City of Boynton Beach, Florida Utility System Revenue Bonds, Series 1996/2005 Escrow Deposit Trust Fund" to be held in the custody of the Escrow Agent separate and apart from other funds ofthe Issuer or the Escrow Agent. Section 2.02. Deposit to Escrow Deposit Trust Fund. On the date hereof the Issuer shall deposit or cause to be deposited with the Escrow Agent and the Escrow Agent shall receive immediately available moneys in the amount of $ , for deposit in the Escrow Deposit Trust Fund. The funds deposited in the Escrow Deposit Trust Fund pursuant to the preceding sentence shall, except for any remaining cash balance be immediately invested by the Escrow Agent in the Government Obligations described on Exhibit B. Section 2.03. Application of Escrow Deposit Trust Fund. The Escrow Agent shall apply the Government Obligations and other moneys deposited in the Escrow Deposit Trust Fund, together with all income and earnings thereon, in accordance with the provisions hereof. The Escrow Agent shall not invest any moneys held hereunder or make substitutions of the Government Obligations hereunder or sell, transfer, or otherwise dispose of the Government Obligations or moneys held hereunder except as provided in this Agreement. Section 2.04. Irrevocable Trust Created. Except as expressly provided herein, the deposit of (or purchase of for deposit of) the Government Obligations and moneys in the Escrow Deposit Trust Fund shall constitute an irrevocable deposit for the benefit of the holders of the Defeased Bonds and the holders of the Defeased Bonds shall have an express lien on the principal of and earnings on the Government Obligations and other moneys held in the Escrow Deposit Trust Fund hereunder until applied in accordance with this Agreement. The Government Obligations and earnings thereon and other moneys shall be held by the Escrow Agent and used only for the purposes and in the manner provided in this Agreement. Section 2.05. Use of Moneys in Escrow Deposit Trust Fund; Redemption of Defeased Bonds. On November I, 2006 the Escrow Agent shall transfer from funds in the Escrow Deposit Trust Fund to the 1996 Bond Registrar the amount of interest, principal and! or redemption price of the Defeased Bonds coming due on such date, as shown on Exhibit C. Such amount shall be applied 3 by the 1996 Bond Registrar to the payment of all principal of, interest on, and redemption premium, if any, when due with respect to the Defeased Bonds. The Issuer hereby irrevocably elects that the Defeased Bonds then maturing after November 1,2006, shall be called for redemption on November I, 2006. The Issuer hereby directs that at least 30 days and not more than 60 days before November I, 2006, a notice of such redemption in the form attached hereto as Exhibit D shall be mailed by the 1996 Bond Registrar, first class mail, postage prepaid, to all registered owners of Defeased Bonds to be redeemed at their addressed they appear on the registration books therefore. In addition, further notice of such redemption shall be given by the 1996 Bond Registrar as provided in Section 303 of the Bond Resolution. The Issuer agrees to pay the reasonable expenses incurred by the 1996 Bond Registrar in connection with such redemption from lawfully available funds of the Issuer. Section 2.06. Investment and Reinvestment of Trust Funds. After the initial investment of funds pursuant to Section 2.02 hereof, the Issuer may direct the Escrow Agent in writing to invest and reinvest any moneys remaining from time to time in the Escrow Deposit Trust Fund until such time as they are needed, and the Escrow Agent shall comply with such request, otherwise the Escrow Agent shall hold such moneys uninvested. Such moneys may be invested and reinvested only in Government Obligations bearing interest at such rate or rates and maturing on such date or dates and in such amounts as directed in writing by the Issuer. The Issuer shall give no such instruction to the Escrow Agent unless the Issuer shall receive and concurrently deliver to the Escrow Agent an opinion of nationally recognized bond counsel selected by the Issuer in its sole discretion to the effect that such investment of such moneys will not adversely affect the exclusion from gross income ofthe interest on the Defeased Bonds for federal income tax purposes. Provided further, that no such investment instruction shall be given unless the Issuer shall have received and delivered to the Escrow Agent verification from a firm of independent certified public accountants to the effect that, taking into account such investment, the amounts held hereunder will be sufficient to pay the principal, premium, and interest on the Defeased Bonds in full as the same shall become due whether by redemption or otherwise. Section 2.07. Transfer of Funds After All Payments Required by This Agreement Are Made. On November 1, 2006 after the transfer of funds described in Section 2.05 hereof has occurred, and after all fees and expenses of the Escrow Agent (including any attorneys' fees and expenses) due hereunder have been paid in full, all remaining moneys and Government Obligations, together with any income and interest thereon, in the Escrow Deposit Trust Fund shall be transferred to the Issuer by the Escrow Agent and shall be deposited by the Issuer in the Bond Service Subaccount of the Sinking Fund Account under the Bond Resolution. The Escrow Agent shall have no responsibility for the application of amounts transferred by it to the Issuer as provided in the preceding sentence. Section 2.08. Deficiencies. If at any time it shall appear to the Escrow Agent that the available proceeds in the Escrow Deposit Trust Fund will not be sufficient to make any payment when due to the holders of any of the Defeased Bonds, the Escrow Agent shall notify the Issuer not less than fifteen (15) days prior to such payment date and the Issuer agrees that it will make available to the Escrow Agent, from legally available funds, if any, amounts sufficient to eliminate the anticipated deficit so that the Escrow Agent will have sufficient funds to make such payment on the 4 Defeased Bonds. Section 2.09. Escrow Agent and Bond Registrar Fees. The Issuer hereby agrees to provide for the payment, from lawfully available funds of the Issuer, of the compensation due and owing the Escrow Agent and 1996 Bond Registrar, which compensation shall be paid at such times and in such amounts as agreed between the Issuer and the 1996 Bond Registrar and Escrow Agent, respectively. In no event shall the 1996 Bond Registrar or Escrow Agent have any lien, security interest or right of set-off whatsoever upon any of the moneys or investments in the Escrow Deposit Trust Fund for the payment of such compensation, or for the reimbursement of any expenses incurred by the 1996 Bond Registrar or Escrow Agent in connection with this Agreement. Section 2.10. Bond Registrar. The Escrow Agent shall cooperate with the 1996 Bond Registrar, to cause necessary arrangements to be made and thereafter continued whereby funds available from the Escrow Deposit Trust Fund shall be made available by the Escrow Agent to the 1996 Bond Registrar, for the payment of the Defeased Bonds as the same shall be come due and payable. ARTICLE In CONCERNING THE BANK Section 3.01. Appointment of Escrow Agent. The Issuer hereby appoints The Bank of New York Trust Company, N.A. as Escrow Agent under this Agreement. Section 3.02. Acceptance by Bank. By execution of this Agreement, the Bank accepts its duties and obligations hereunder. The Bank undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Bank. Section 3.03. Liability of Bank. The Bank shall not be liable in connection with the performance of its duties hereunder except for its own negligence or willful misconduct. The Bank shall not be liable for any loss or any resulting taxability of interest on the Defeased Bonds resulting from any investment made pursuant to the terms and provisions of this Agreement. The Bank shall not be liable for the accuracy of the calculations as to the sufficiency of moneys and of the principal amount of the Government Obligations and the earnings thereon to pay the Defeased Bonds. The Bank shall keep such books and records as shall be consistent with prudent industry practice and shall make such books and records available for inspection by the Issuer at all reasonable times. In the event of the Bank's failure to account for any of the Government Obligations or moneys received by it, said Government Obligations or moneys shall be and remain the property of the Issuer for the benefit of the holders of the Defeased Bonds, as herein provided. Section 3.04. Permitted Acts. The Bank and its affiliates may become the owner of or may deal in any obligations of the Issuer described herein as fully and with the same rights as if it were 5 not the Escrow Agent and 1996 Bond Registrar. Section 3.05. Resignation of Escrow Agent. The Escrow Agent at the time acting hereunder may at any time resign and be discharged from the trusts hereby created by giving not less than sixty (60) days' written notice to the Issuer specifying the date when such resignation will take effect, but no such resignation shall take effect (except as provided by Section 3.07 (b) hereof) unless a successor Escrow Agent shall have been appointed by the Issuer as hereinafter provided and such successor Escrow Agent shall have accepted such appointment, in which event such resignation shall take effect immediately upon the appointment and acceptance of a successor Escrow Agent and the transfer to such successor Escrow Agent of the funds and accounts held by the Escrow Agent hereunder. Section 3.06. Removal of Escrow Agent. ( a) The Escrow Agent may be removed at any time by the Issuer, but the Escrow Agent shall remain in office (except as provided by Section 3.07(b) hereof) until the appointment and taking office of a successor Escrow Agent in accordance with the provisions of this Agreement. (b) The Escrow Agent shall be deemed to have been removed if it is dissolved, becomes incapable of exercising the powers of Escrow Agent hereunder or is taken over by any governmental action. (c) Notwithstanding the foregoing provisions of this Section 3.06, no removal of the Escrow Agent shall take effect until all fees and expenses of the Escrow Agent to be removed (including attorneys' fees and expenses) due hereunder shall have been paid. Section 3.07. Successor Escrow Agent. (a) When the position of the Escrow Agent becomes or is about to become vacant, the Issuer shall appoint a successor Escrow Agent to fill such vacancy. (b) If no appointment of a successor Escrow Agent shall be made pursuant to the foregoing provisions of this Section, the holder of any Defeased Bond then outstanding may, or any Escrow Agent retiring or being removed from office shall, apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Upon the deposit by the retiring Escrow Agent of all funds and securities held by it under the provisions hereof into the registry of such court, such Escrow Agent shall be relieved of all future duties hereunder. ( c) Any corporation into which the Escrow Agent, or any successor to it in the trusts created by this Agreement, may be merged or converted or with which it or any successor to it may be consolidated, or any corporation resulting from any merger, conversion, consolidation or reorganization to which the Escrow Agent or any successor to it shall be a party or any corporation to which all or substantially all of the corporate trust business of the Escrow Agent or any such successor shall be transferred shall be the successor Escrow Agent under this Agreement without the execution or filing of any paper or any other act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. 6 Section 3.08. Receipt of Proceedings. Receipt of true and correct copies of the Bond Resolution is hereby acknowledged by the Escrow Agent. Section 3.09. Indemnification. The Issuer agrees to indemnify and save the Bank, its agents and employees, harmless, to the extent allowed by law, against any liabilities, costs, expenses and disbursements of whatsoever kind or nature, which it or they may incur in the exercise and performance of its powers and duties hereunder, and which are not due to its negligence or misconduct. Indemnification provided under this Section shall survive the termination of this Agreement. Section 3.10. Miscellaneous Provisions Regarding Escrow Agent. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the Issuer. The Escrow Agent may conclusively rely, as to the correctness of statements, conclusions and opinions therein, upon any certificate, report, opinion or other document furnished to the Escrow Agent pursuant to any provision of this Agreement; the Escrow Agent shall be protected and shall not be liable for acting or proceeding, in good faith, upon such reliance; and the Escrow Agent shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument. The Escrow Agent may consult with counsel, who may be counsel to the Issuer or independent counsel, with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith in accordance herewith. Prior to retaining such independent counsel, the Escrow Agent shall notify the Issuer of its intention. ARTICLE IV MISCELLANEOUS Section 4.01. Amendments to this Agreement. This Agreement is made for the benefit of the Issuer, the Bank and the holders from time to time of the Defeased Bonds and it shall not be repealed, revoked, altered or amended without the written consent of all such holders, the Bank and the Issuer; provided, however, that the Issuer and the Bank may, without the consent of, or notice to, such holders, enter into such agreements supplemental to this Agreement as shall not adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Defeased Bonds and the rights of such holders and as shall not be inconsistent with the terms and provisions of this Agreement, for anyone or more of the following purposes: (a) to cure any ambiguity or formal defect or omission in this Agreement; (b) to grant to, or confer upon, the Escrow Agent for the benefit of the holders of the Defeased Bonds, any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such holders or the Escrow Agent; and (c) to subject to this Agreement additional funds, securities or properties. 7 The Bank shall be entitled to rely exclusively upon an unqualified opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. or other nationally recognized bond counsel with respect to compliance with this Section, including the extent, if any, to which any change, modification, addition or elimination affects the rights of the holders of the Defeased Bonds, or that any instrument executed hereunder complies with the conditions and provisions of this Section. Section 4.02. Severability. If anyone or more of the covenants or agreements provided in this Agreement should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed to be separate and shall in no way affect the validity of the remaining provisions of this Agreement. Section 4.03. Agreement Binding. All the covenants, promises and agreements in this Agreement contained by or on behalf of the Issuer or by or on behalf of the Escrow Agent shall bind and inure to the benefit of their respective successors and assigns, and to the benefit of the holders of the Defeased Bonds, whether so expressed or not. Section 4.04. Termination. This Agreement (other than Section 3.09 hereof) shall terminate when all transfers and payments required to be made by the Escrow Agent under the provisions hereof shall have been made. Section 4.05. Governing Law. This Agreement shall be governed by the applicable laws of the State of Florida. Section 4.06. Execution by Counterparts. This Agreement may be executed in several counterparts, . each of which shall be regarded for all purposes as an original, and all of which, together, shall constitute and be but one and the same instrument. Section 4.07. Notices. Any notice, demand, direction, request or other instrument authorized or required by this Agreement to be given shall be deemed sufficiently given on the day sent by registered mail, return receipt requested, addressed as follows or to such other address furnished in writing by any of the following to all of the following: If to the Issuer: City of Boynton Beach, Florida Attn: City Manager 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425 If to the Bank: The Bank of New York Trust Company, N.A. 10161 Centurion Parkway 2nd Floor Jacksonville, Florida 32256 8 IN WITNESS WHEREOF, the Issuer and the Escrow Agent have duly executed this Agreement as of the date first above written. CITY OF BOYNTON BEACH, FLORIDA By: Mayor THE BANK OF NEW YORK TRUST COMPANY, N.A., as Escrow Agent By: Its Authorized Signatory 9 EXHIBIT A DEFEASED BONDS Maturity Date (November) 2007 2008 2009 2010 2011 2012 2020 Principal Amount 1,900,000 2,000,000 2,110,000 2,215,000 2,340,000 2,475,000 1,040,000 CUSIP # (Prefix is 103580) BBl BC9 BD7 BE5 BF2 BGO BH8 EXHIBIT B GOVERNMENT OBLIGATIONS TO BE DEPOSITED INTO ESCROW DEPOSIT TRUST FUND Part I Maturity Date Principal ~ 11/01/2006 1. U.S. Treasury Obligation - State and Local Gov't. Series Interest Rate EXHIBIT C DEFEASED BONDS DEBT SERVICE SCHEDULE Date Called Principal Call Premium Interest Total 11/01/2005 $382,431.25 $ 382,431.25 05/01/2005 $382,431.25 $ 382,431.25 11/01/2006 $14,080,000.00 $281,600.00 $382,431.25 $14,744,031.25 EXHIBIT D REDEMPTION NOTICE CITY OF BOYNTON BEACH, FLORIDA UTILITY SYSTEM REVENUE BONDS, SERIES 1996 Maturity Interest Rate CUSIP Nos.* 2007 5.20% 103580 BBI 2008 5.375 103580 BC9 2009 5.375 103580 BD7 2010 5.50 103580 BE5 2011 5.50 103580 BF2 2012 5.50 103580 BGO 2020 5.625 103580 BH8 Notice is hereby given that pursuant to the terms of the Resolution, adopted June 16, 1992, as amended and supplemented, by the City Commission of the City of Boynton Beach, Florida, the bonds described above, which were issued July 23, 1996, are called for payment and redemption on November I, 2006 (the "Redemption Date") at a redemption price of 102% of the principal amount thereof plus accrued interest thereon to the Redemption Date. The Bonds so called for redemption should be presented for payment and redemption at the office of the paying agent set forth below, on or after November I, 2006, and will cease to bear or accrue interest after that date, whether or not so presented. The Bank of New York [insert address and name and telephone number of contact] Withholding of 31 % of gross redemption proceeds of any payment made within the United States of America may be required by the Interest and Dividend Tax Compliance Act of 1983 unless the paying agent has the correct taxpayer identification number (social security or employer identification number) or exemption certificate of the payee. Please furnish a properly completed IRS Form W-9 or exemption certificate or equivalent when presenting your securities for redemption. DATED this _ day of _,2005. CITY OF BOYNTON BEACH, FLORIDA By: Isl William Mummert Finance Director * CUSIP numbers are included solely for the convenience of the owners, and no representation is made as to the correctness of the CUSIP numbers indicated in this Redemption Notice. G:\02345\37 Utility 2005\cscrow deposit(2).wpd XIII-UNFINISHED BUSINESS ITEM A. CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM Requested City Commission Date Final Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meeting Dates r8J August 2, 2005 July 18,2005 (Noon.) 0 October 5, 2005 0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005 0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 0 September 20, 2005 September 6, 2005 (Noon) 0 November 15, 2005 0 Administrative 0 NATURE OF 0 Consent Agenda 0 AGENDA ITEM 0 Public Hearing 0 0 Bids [8J 0 Announcement 0 0 City Manager's Report Date Final Form Must be Turned in to City Clerk's Office September 19,2005 (Noon) October 3, 2005 (Noon) " ) October 17, 2005 (Noonr.:; _~ --'1 -~. 4 -" October 31, 2005 (Noon~::: r-.) (:::) - ~,"'- Development Plans New Business -r:J c Legal Un[mished Business Presentation r:-? --;;~= --t""'l"--...-; -:\01 .~-) "'> .-'1" G"> .r-..-~ \.....~-" RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under UnfInished Business. This project was presented to the Planning and Development Board on May 24, 2005, and to the Community Redevelopment Agency Board on June 9,2005. Both Boards forward this project to the City Commission with a recommendation of approval, with the recommended changes as described below. This has been tabled since July 5,2005. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-088. P & D Board recommendations: CRA Board recommendations: EXPLANATION: PROJECT: AGENT: LOCATION: DESCRIPTION: Building Colors along Major Roadways (CDRV 05-009) City Initiated N/A Proposal to amend the Land Development Regulations, Chapters, 4 and 9 to limit building colors, and require the review/approval for changes to building colors for buildings located along Boynton Beach Boulevard, Federal Highway, and Congress Avenue. PROGRAM IMPACT: FISCAL IMPACT: ALTERNATIVES: l/tlifd t/&,~. ;/c t:~ City Manager Si~re I D'y:g;;t~t Dlle tm Planning and oning Director City Attorney / Finance / Human Resources S:\Planning\SHARED\WP\SPECPROJ\CODE REVIEW\Colors\Agenda Request BJdg Colors Major Roadways CDRV 05-009 unfinished bus 8-2-05 from 7-19.dot S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC DEPARTMENT OF DEVELOPMENT Memorandum PZ 05-088 FROM: DATE: RE: Chair and Members, Planning & Development Board Community Redevelopment Agency Board Michael Rumpf, Planning & Zoning Division May 13, 2005 Regulation of building colors on major thoroughfares TO: INTRODUCTION Concerned for the aesthetic appearance of developments located along the arterial roadway corridors in Boynton Beach, the City Commission directed staff to consider regulations on building colors, and to initially obtain input from the two respective advisory boards. Although there was not strong consensus on all aspects of this issue, both boards generally support increased review of color changes, oppose the adoption of a specific color pallet, favor an increased review above staffs administrative review, spoke of importance of having "teeth" in the system such as a required permit for repainting projects, and that single-family houses should be exempt. Staff reviewed existing regulations, researched comparable codes, and reviewed color theory including the Munsell Color Classification System. Based on the understanding that the city desires strict color standards for the three (3) major corridors including Boynton Beach Boulevard, Congress Avenue, and Federal Highway, staff has drafted code amendments for consideration. Staff understands the goal of this effort to prevent the presence of undesirable building colors from degrading the appearance of major roadway corridors. The challenge to accomplishing this goal is establishing a regulatory system given the subjective nature of the industry's classification of colors, the difficulty in attaining consensus on colors, and the need for regulations to be clear, concise and defensible. Staff also emphasized in this project, the need to maintain an efficient and friendly development review process that maintains the positive reputation achieved to date, and minimizes the enforcement burden on staff time and resources. o f f I f b 'Id' . d f II 'ptlons or regu a mg UI mg co ors are summanze as 0 ows: Regulatory System Regulatory scrutiny Process impact User-friendliness Mandatory color palate High/Low No affect Depends on choices Subjective codes w/board Highest More review time Least friendly review Color standards (objective) Medium No affect Depends on choices Relative stnds. (to existing) Moderate No affect Fairly friendly No color requirements Lowest No affect Most friendly EXISTING REGULATIONS The city's regulations are currently void of specific rules governing building colors. Although sign colors are to be "complimentary to the colors of the structure on which it is to be located", in the Page 2 of 6 absence of specific color regulations, staff has applied requirements of Chapter 9. Community Design Plan, that are specifically applicable to building and architectural design, to colors proposed for new projects. Chapter 9, under Section 11. Exterior Building Design, reads as follows: "B. When a distinct development or architectural pattern exists within a surrounding two block area, consistency with that pattern shall be required, unless the pattern of development is in a dilapidated condition. This provision shall not require buildings to be exact copies of each other. " and "D. When the area involved forms an integral part of, or is immediately adjacent to, or otherwise clearly affects the future of any established section of the city, the desiqn. scale and location on the site shall enhance rather than detract from the character, value, and attractiveness of that section of the cay. " It should be noted that since Chapter 9 applies to new construction and substantial improvements to existing projects (major modifications), it does not apply to minor modifications. With respect to minor/major plan modifications, Chapter 4. Site Plan Review, lists criteria used to determine if proposed project changes are major or minor. The following paraphrased excerpt is from Section 9.C of that Chapter: C. In making a minor/major modification determination, the planning director shall consider the following: 1. increase ...buildable square footage ....by more than five (5) percent. 2. reduce the provided number of parking space below required number. ... LOR. 3. cause development to be below the development standards in 4. Does the modification have an adverse effect on adiacent or nearby property or reduce required physical buffers, such as fences, trees, or hedges. 5. Does the modification adversely affect the elevation desian of the structure or reduce the overall design of the structure below the standards stated in the community design plan. 6. meet the concurrency requirements..... 7. modified site plan does not resemble the approved site plan. The underlined text represents those criteria occasionally used by staff in reviewing proposed . changes to proposed colors, despite their intent to address building design, location, and other elements regulated by the Community Design Plan. If confronted with potentially undesirable proposed project colors, and by an applicant unwilling to compromise, staff would deem the change "major" thereby requiring formal site plan review culminating in Commission review. Alternatively, the applicant could appeal the administrative decision, which similarly, would be reviewed by the City Commission. However, this current process not only lacks enforceable codes, but is flawed by virtue of the subjective nature of reviewing paint colors. While new site plans facilitate the thorough review of project colors by both the advisory board and Commission, the minor modification process relies upon staff to make subject decisions in reviewing acceptable building colors. Page 3 of 6 PROPOSED AMENDMENTS Staff has drafted proposed amendments following a city-wide windshield survey (reference corresponding PowerPoint slide show) to view predominant building colors, consideration of regulations from other municipalities, and following identification of a subjective color classification system. The proposed amendments, as described and provided below, begin by adding purpose or preamble text to establish colors as an important design aspect, adds color changes to applicability criteria of Chapter 9, defines special road corridor and the corresponding acceptable color groups, establishes maximum color limits (intensities) based on the Munsell Color Classification system, places burden of proof of compliance on the applicant, adds color changes as a criteria for major/minor modification reviews and describes submittal information. The changes also delegates to the advisory boards the responsibility to review appeals to administrative decisions involving change in project colors. Prior to codification of final amendments, staff will also incorporate penalty and enforcement provisions with input from the City Attorney's Office. Entire excerpts of the proposed amendments are also included as Exhibit "A". Preamble The following text is proposed for Chapter 9. Section 11 (new subsection "K"), and would provide the basis and importance of new color regulations. This new section is proposed as follows: K. Bui/ding colors. Bovnton Beach recognizes that protect architecture and colors can positivelv or negativelv imoact its aesthetic environment, image, and oropertv values. Building colors should be carefullv selected to be compatible with and compliment protect architecture, colors of fixed elements such as roof materials, and colors of adtacent orotects. Protect colors will be selected to provide aopropriate orooortions of, and coordinated base, secondary, trim, and accent colors. Protect colors are intended to complement and contribute to the surrounding area and city, rather than orimarilv attract attention to a single orotect from a distance. The intent of this section is not to require identical colors, but to require the careful selection of colors that will contribute to the overall apoearance of the city. This text documents the importance to the city of building colors; states the importance of careful color selection, color compatibility, and color hierarchy; and the purpose of colors to contribute to an area rather than just to a single project. Note that this preamble recognizes the hierarchy in design and painting of a building by requiring a level of fayade detail that facilitates use of a variety of (yet complimentary) colors for the three different areas of a wall-base or primary wall, secondary portions of a wall, and the trim and "accent" areas. Applicability The following text is proposed to Chapter 9. Section 4 (new criterion #5) so that this chapter and the new requirements are applicable to changes proposed to approved or existing project colors, for projects that are located along any of the three target roadways. This new criterion reads as follows: 5. When exterior oaint colors are to be changed on an existing building located as described in Section 11.K,1 (onlv Subsection 11.K aoplies to oroposed improvement unless protect also includes other modifications as described in this chapter). Changes as described in section 11.K.l shall be orocessed as a mator or minor site plan modification, and in accordance with Section 11.K of this chapter. Page 4 of6 This text also clarifies that other requirements of Chapter 9 such as roof top screening, would not apply to changes that only involve exterior colors. Color Standards This text represents the core of the proposed standards, defining the preferred colors or color groups to which the target roadway corridors are limited, and establishing the upper limit on color intensity (or saturation) as a quantifiable label defined by the Munsell Color Classification system. The proposed color groups and Munsell value and chroma limits can be adjusted based on preferences and consensus from the advisory boards and City Commission. The Munsell Color Classification system was established by the artist Albert H. Munsell in 1905. to provide a standard objective classification methodology that uses a rational numerical system rather than color names to describe different colors. This continues to be a system used by the U.S. National Bureau of Standards. This system is proposed for the city's color regulations to define the measurable threshold for acceptable color chroma or saturation (commonly referred to as "intensity". This system is based around, and further defined by three attributes of color: Hue, Value and Chroma, and each represented by numerical quality. This system will be further defined by staff as part of the presentations before the board and Commission; however. it is important to note that the maximum value and chroma qualities, established in the code. will be applied only when a compromise cannot be reached with the applicant using basic visual analysis of the proposed colors, against the general limits described in the code. It should also noted that the burden will be placed on the applicant, when staff initially determines that the proposed colors exceed the maximums. to obtain and provide to staff the actual nearest quality scores for the proposed colors from the Munsell classification system. The proposed standards read as follows: 1. Due to the hiah visibilitv of buildinas located alona Conaress A venue. Bovnton Beach Boulevard and Federal Hiahwav. and particular Iv aiven the intent of redevelopment plans to beautify and unify Federal Hiahwav and a seament of Bovnton Beach Boulevard, buildina colors for new proiects. or existina proiects proposed for minor or maior modification. will be further reaulated bv the fOllowina reauirements: a. Commercial/office/industrial proiects.Base/main wall color will be liaht (hiah "value'? colors limited to whites. aravs and beiaes. Atypical building colors such as purole. pink. blue, areen and teal. should be substituted with more common pastels or hue cateaories such as vellow or peach. Secondary colors will not cover areater than 25% of each individual wall area. Secondary colors will be consistent with the wall color standards, or can be a moderatelv saturated wall color or a moderatelv saturated complimentary color. Trim and accent colors mav be the most saturated colors allowed. and are encouraaed to be complimentary earth tones and/or pastels. The maanitude of saturation will be proportional to the saturation of the wall and secondary colors. If proposed colors are determined bv the Plannina & Zonina Director to be inconsistent with the intent of this section. applicant shall verify compliance usina the Munsell Color Classification Svstem. with eiaht (8) beina the minimum value. and six (6) beina the maximum chroma. The maximum allowed difference in saturation between the base color and secondary color is three (3) whole increments. The applicant mav be reauired to provide exact color notations from the Munsell Color Classification Svstem. to confirm compliance with these standards. b. Residential proiects (excludina one and two familv structures). Colors for residential proiects are allowed to include a areater aamut of colors. to include whites. beiaes and other earth tones. consistent with paraaraph "K" of this section. with secondary. trim and accent colors consistent with paraaraph "a" of this section. Page 50f6 Note paragraph "1", defines the target roadways similar to how the target roadway corridors are identified in the preceding, existing subsection regarding overhead doors. Paragraph "a" accomplishes the following: 1. Recognizes the importance of hierarchy in design and painting of a building by providing separate standards for the three or four different painting areas of a wall-base, secondary, and trim or accent; sets 25% as the maximum amount of space for secondary elements; and recognizes the benefit of compatible diversity through flexibility in using bolder (higher chroma) colors for trim and accent elements; 2. Establishes acceptable color groups (or "hues") for each area of the fayade. This therefore excludes from use as a base color certain color groups commonly known, for example, as the "historical palette", which tends to be darker, very saturated colors. "Light" colors are also known by the industry as "whites" or "white bases"; and 3. References the Munsell system as the standard, and sets thresholds for value and chroma as 8 and 6, respectively. Note that the two attributes are inversely proportional, as the higher the "value" the lighter the color, and the higher the "chroma" the bolder (brighter or more "saturated") the color. Paragraph "b" accomplishes the following: 1. Excludes single and two family structures from the color regulations; and 2. Provides greater flexibility in color choices by allowing the selected "hues" (color families) that are excluded from paragraph "a" such as "earth tones". Minor/Maior Review Criteria Chapter 4. Site Plan Review, Section 9. Modification of approved site plan is proposed to be amended to provide the beneficial reference to the new color regulations within Chapter 9, in addition to requiring ill! repainting projects to be reviewed for conformance with the preamble of the color regulations. This is the most significant change other than those changes intended for properties along selected roadway corridors. While this would increase the review role over repainting projects, and prevent extremely undesirable colors, it would likely generate significantly more violations and enforcement activity due to lack of knowledge of the new regulations, or painting activities that would intentionally disregard new codes. This text would read as follows, beginning with the section title: Section 9. Modification of existinG improvements approvod sito pkm A. Minor: A non-impacting modification which will have no adverse effect on the 3pprovod site and development p/aR and no impact upon adjacent and nearby properties, and no adverse aesthetic impact when viewed from a public right-of-way as determined by the planning and zoning director. 5. Does the modification adversely affect the elevation design of the structure or reduce the overall design of the structure below the standards stated in the Community Design Plan. Does the modification propose to repaint a proiect usinG existinG colors. of which are inconsistent with color standards of section K. 1 of the Community DesiGn Plan. or propose to chanGe proiect colorr s) inconsistent with color standards of section K. 1. The proposed changes to the section title are unrelated to this color project, and intended to allow application of the major/minor modification review for current regulations against changes to any existing site, rather than implying that it applies only to modern day projects improved with a site plan currently on file. This would prevent interpretations that exempt older sites from being reviewed for site changes, or from automatically requiring them to undergo formal site plan review when in fact the proposed changes are "minor". This also prevents codes from discouraging desirable redevelopment and property improvements, by limiting the extent of regulations that are applicable to older, non- conforming properties, particularly when it is cost-prohibitive to be brought totally "up to code". Page 6 of 6 Appeals This proposed addition to Chapter 1. General Provisions, Article VIII. Appeals, provides the advisory boards with the responsibility to hear the appeals of administrative decisions leading from the review of paint colors for conformance with the new color regulations. This new paragraph "5" is consistent with feedback received from advisory boards during initial discussions, as summarized in the first paragraph of this report. 5. The Planninq & Development Board and Community Re- development Aqency Board will hear and decide appeals of admin- istrative decisions or determination in the enforcement of maior/ minor site plan modifications involvina chanqe in proiect colors. or compliance with other color reaulations. Definitions The following definitions are to supplement existing definitions within Chapter 1, Article II, for the purpose of providing proper documentation for this topic that is new to city regulations. The proposed definitions are as follows: The Munsell Color System. A commonly used color measurement methodoloQY usinq a rational numerical classification system rather than color names to describe different colors. This system is based around. and further defined by three attributes of color: Hue, Value and Chroma. and each represented by numerical quality. Hue. The basis of a color. also referred to as the color family usinQ the primary and secondary colors. Value. The liqhtness or darkness of a color. also known as the qray scale (0 = absolute black, 10 = theoretical white), Chroma. The intensity of a color. also referred to as its strenoth or saturation. Saturation. The intensity. strenoth or briohtness of a color. Base/wall color. The color used for those portions of the wall that represent the oreater surface area compared to the remainder of the facade. Secondary color. The color used on smaller portions of a wall. or on larqe trim areas of the facade. and should not exceed 25% of each individual wall. Trim and accent colors. These are buildino colors used on doors, around doors and windows. alonq roof lines or other planes of the facade. or on features used for architectural enhancement or definition. CONCLUSIONS/RECOMMENDATIONS Staff presents these recommend code amendments for consideration by the advisory boards and City Commission. As indicated above, the only aspect of these proposed regulations known by staff to be absent, which will still be formulated through collaboration with the City Attorney's Office, regard enforcement and penalties. Staff also acknowledges that the awareness and understanding of the business community is vital to the successful implementation of the ultimate regulations adopted by the Commission. Directly mailed notices to those owners of property located along the target roadways, may be necessary to maximize the awareness of any new regulations. MR Attachments S:\Planning\SHARED\WP\SPECPROJ\CODE REVIEW\Colors\staff report.doc Part III. LDRs, Chapter 4. Site Plan Review Section 9. Modification of approved site -pIaft. A. Minor: A non-impacting modification which will have no adverse effect on the ~pprovcd site and development t*a-A and no impact upon adjacent and nearby properties, and no adverse aesthetic impact when viewed from a public right-of-way as determined by the planning and zoning director. B. Major: A modification which presents a significant change in intensity of use which, in turn, may have a significant impact upon facilities, concurrency; upon nearby and adjacent properties, or upon findings made at the time of approval of the site and development plan as determined by the planning and zoning director. C. In making a minor/major modification determination, the planning and zoning director shall consider the following: 1. Does the modification increase the buildable square footage of the development by more than five (5) percent. 2. Does the modification reduce the provided number of parking space below the required number of parking spaces. 3. Does the modification cause the development to be below the development standards for the zoning district in which it is located or other applicable standards in the Land Development Regulations. 4. Does the modification have an adverse effect on adjacent or nearby property or reduce required physical buffers, such as fences, trees, or hedges. 5. Does the modification adversely affect the elevation design of the structure or reduce the overall design of the structure below the standards stated in the Community Design Plan. Does the modification propose to repaint a project using existing colors, of which are inconsistent with color standards of section K.1 of the Community Design Plan, or propose to change proiect color(s) inconsistent with color standards of section K.1. 6. Does the modified development meet the concurrency requirements of the Boynton Beach Comprehensive Plan. 7. Does the modification alter the site layout so that the modified site plan does not resemble the approved site plan. F. Required information: The following information must be presented with a request for a site plan modification: 1. Minor: A letter which sets forth the requested changes along with an exhibit showing that portion of the site plan which is to be changed in its present condition and an exhibit depicting the requested change. Where the proposed changes include project colors, required information will also include color swatches of the existing and proposed colors, and corresponding elevation drawings. Photographs or alternative graphics in lieu of elevation drawings may be submitted if deemed acceptable by the Planning & Zoning Director. The applicant may be responsible for providing exact color notations from the Munsell Color Classification system, to confirm compliance with Chapter 9 of these regulations. 2. Major: A major modification shall contain the same information as required for a new site plan submittal. Part III. LDRs, Chapter 9. Community Design Plan Sec. 4. Applicability. A. New Construction. This chapter shall apply concurrently and in direct relation with the requirements of Chapter 4, Site Plan Review of these regulations. B. Existing Construction. This chapter shall be applicable under any of the following conditions: 1. When an existing building is proposed to be enlarged. 2. When exterior alteration or reconstruction of an existing building is changed and/or alters the effect of the architectural design of the building. 3. When an existing building and/or site is substantially improved. 4. When the occupancy classification of the building changes as defined by the Standard Building Code. 5. When exterior paint colors are to be changed on an existing building located as described in Section 11.K.1 (only Section iLK applies to proposed improvement unless project also includes other modifications as described in this section). Changes as described in section !1.K.! shall be processed as a maior or minor site plan modification, and in accordance with Section !1.K of this chapter. Part III. LDRs1 Chapter 9. Community Design Plan Sec. 11. Exterior Building Design. 1. All building facades of a building that face or are visible from public or private streets shall be designed to be as attractive in appearance as the front of the building. J. Due to the high degree of visibility of buildings located on Hypoluxo Road, Miner Road, Congress Avenue, Lawrence Road, Gateway Boulevard, Quantum Lakes Drive, Old Boynton Road, Knuth Road, Woolbright Road, Boynton Beach Boulevard, Winchester Boulevard, High Ridge Road, Seacrest Boulevard, Golf Road, Ocean Avenue, Federal Highway, Old Dixie Highway, N.E. 10th Avenue and S.E. 36th Avenue; most of which are considered entrances to the CitYI the following additional exterior design requirements apply: 1. Overhead doors shall not be located on a building facade(s) that faces any of the above public or private street. 2. Industrial buildings located on any of the above streets shall be designed in such a manner so as to disguise their typical warehouse appearance. K. Building colors. Boynton Beach recognizes that project architecture and colors can positively or negatively impact its aesthetic environment, image, and property values. Building colors should be carefully selected to be compatible with and compliment project architecture, colors of fixed elements such as roof materials, and colors of adjacent projects. Project colors will be selected to provide appropriate proportions of, and coordinated base, secondary, trim, and accent colors. Project colors are intended to complement and contribute to the surrounding area and city, rather than primarily attract attention to a single project from a distance. The intent of this section is not to require identical colors, but to require the careful selection of colors that will contribute to the overall appearance of the city. 1. Due to the high visibility of buildings located along Congress Avenue, Boynton Beach Boulevard and Federal Highway, and particularly given the intent of redevelopment plans to beautify and unify Federal Highway and a segment of Boynton Beach Boulevard, building colors for new projects, or existing projects proposed for minor or major modification, will be further regulated by the following requirements: a. Commercial/office/Industrial projects. Base/main wall color will be light (high "value") colors limited to whites, grays and beiges. Atypical building colors such as purple, pink, blue, green and teal, should be substituted with more common pastels or hue categories such as yellow or peach. Secondary colors will not cover greater than 250/0 of each individual wall area. Secondary colors will be consistent with the wall color standards, or can be a moderately saturated wall color or a moderately saturated complimentary color. Trim and accent colors may be the most saturated colors allowed, and are encouraged to be complimentary earth tones and/or pastels. The magnitude of saturation will be proportional to the saturation of the wall and secondary colors. If proposed colors are determined by the Planning & Zoning Director to be inconsistent with the intent of this section, applicant shall verify compliance usinQ the Munsell Color Classification System, with eight (8) being the minimum value, and six (6) being the maximum chroma. The maximum allowed difference in saturation between the base color and secondary color is three (3) whole increments. The applicant may be required to provide exact color notations from the Munsell Color Classification System, to confirm compliance with these standards. b. Residential projects. Colors for residential projects are allowed to include a greater gamut of colors, to include whites, beiges and other earth tones, consistent with paragraph "Ku of this section, with secondary, trim and accent colors consistent with paragraph "au of this section. Part III. LOR, Chapter 1. General Provisions Art. VII. Appeals D. ASSIGNMENT OF APPEALS. The City of Boynton Beach has several boards/commissions which deal with a variety of appeals, variances, exemptions, exceptions, etc., as follows: 1. The building board of adjustment and appeals will hear and decide appeals of administrative decisions or determinations made in the enforcement or administration of LDR Chapter 20, Building, Housing and Construction Regulations and the various building codes and ordinances adopted by the City. See LOR Chapter 20, Article VII, Section 2D for detailed information. 2. The City Commission will hear and decide appeals of administrative decisions or determinations in the enforcement or administration of excavation, dredging and/or fill permits; platting; major/minor site plan or master plan modifications and height exceptions. 3. The concurrency review board will hear and decide appeals of administrative decisions denying a certification of concurrency and/or a conditional certification of concurrency. 4. Repealed by Ord. No. 02-033, 9 4, 8-20-02. 5. The Planning & Development Board and Community Redevelopment Agency Board will hear and decide appeals of administrative decisions or determination in the enforcement of major/minor site plan modifications involving change in project colors, or compliance with other color reQulations. Part III. LOR, Chapter 1. General Provisions Art. II. Definitions The Munsell Color System. A commonly used color measurement methodology using a rational numerical classification system rather than color names to describe different colors. This system is based around, and further defined by three attributes of color: Hue, Value and Chroma, and each represented by numerical quality. Hue. The basis of a color, also referred to as the color family using the primary and secondary colors. Value. The lightness or darkness of a color, also known as the gray scale (0 = absolute black, 10 = theoretical white). Chroma. The intensity of a color, also referred to as its strength or saturation. Saturation. The intensity, strength or brightness of a color. Base/wall color. The color used for those portions of the wall that represent the qreater surface area compared to the remainder of the fa<;ade. Secondarv color. The color used on smaller portions of a wall, or on large trim areas of the fa<;ade, and should not exceed 250/0 of each individual wall. Trim and accent colors. These are building colors used on doors, around doors and windows, along roof lines or other planes of the fa<;ade, or on features used for architectural enhancement or definition. . .. ... ~ .... g. ..... a C)...... 3 ..... ~.~ ..... ..... CD ..... ...... ..... ..... ... ... . value 0- ~ '. () t-:J A o ...... I\J (..J t.. Fl 9) "-.. "'.,. ..-,. -. -.. -.. . -,. ...... c..n -. ...... 1\.) -. (D . -. ...... 1\.) . ...... c.p t-J o EXHIBIT B ) -.J (D ([) ...-..; ~_~ 1_. I.. ~. ::T . . ([I UI -c UI " aI Meeting Minutes Planning and Development Board Boynton Beach, Florida May 24, 2005 Mixed Use POD in the Planned Industrial Development (PID) zoning district. Chair Wische inquired about tabling the Quantum Park & Village South Commercial Master Site Plan Modification. Mr. Johnson noted that staff received a fax from the applicant on the date of this meeting, stating they would like to postpone until the next Planning and Development Meeting. Ed Breese pointed out there were some issues, which they wanted to resolve with staff before coming before the Board. Motion Mr. Casaine moved that the Master Site Plan Modification for Quantum Park & Village South Commercial (MSPM 05-003), be tabled until the next Planning and Development Meeting, to be held on June 28, 2005. Motion seconded by Vice Chair Hay and carried 6-0. G. Code Review 2. Project: Building Colors along Major Roadways (CDRV 05-009) City initiated N/A Proposal to amend the land Development Regulations, Chapters 4 and 9 to limit building colors, and require the review/approval for changes to building colors for buildings located along Boynton Beach Boulevard, Federal Highway, and Congress Avenue. Agent: location: Description: Chair Wische asked why Woolbright was left out of the proposal. Mr. Rumpf stated that in some conversations with Commissioner Ensler, who was instrumental in bringing the item forward, he suggested trying it on the three roads, which had the greatest exposure to the public. Vice Chair Hay stated Gateway should also be included. Mr. Rumpf explained the project was to address color changes for existing buildings, and not for new construction, because the Board would get to review those colors. Mr. Rumpf noted he prepared a PowerPoint presentation, and hoped the Board could give comprehensive recommendations to the Commission. He pointed out 10 Meeting Minutes Planning and Development Board Boynton Beach, Florida May 24, 2005 the goal was to bring the major roadway corridors of Boynton Beach Boulevard, Federal Highway and Congress Avenue, up to a greater quality or appearance standard, by addressing paint colors. Mr. Rumpf started his PowerPoint presentation, which is available on file with the minutes of the meeting. Mr. Rumpf expressed that staff hoped to clean up the corridors through attrition, and the building colors project is not something that would be mandated. He said there would be no color police citing projects that do not conform. Mr. Rumpf pointed out their challenge would be to establish a regulatory system that accomplishes the objectives on: · The varying opinions on acceptable colors; · The subjective nature and inconsistent use of terminology in describing colors by the industry; · The need for regulations to be clear, concise and defensible. Mr. Rumpf noted the objectives of the presentation were: · To show samples of built environment, and the consistency of colors which are out there now. · Identify preferences. · To discuss the alternatives to writing regulations, or regulatory schemes. · Learn the basics of the Munsell Classification System · Obtain consensus on color limits for color groups and color thresholds. · Consideration of staff recommendations. As part of his presentation, Mr. Rumpf showed photographs of some buildings and their existing colors. He described the base and secondary colors used on the buildings. Mr. Rumpf stated that on the first page of the report submitted, there was a simplistic summary of the general regulatory option, which other cities use in their system. He noted they did not have specific regulations pertinent to colors, and the language in the code spoke about the design, form and architecture. In the absence of color standards, staff used the paragraph in Chapter 9 of the Design Plan, to include colors. Mr. Rumpf stated the existing regulations were located in Chapter 9 of the Community Design Plan, which talked about the architectural pattern, which was construed to include colors. The language in Part 111 of the LDRs, Chapter 4, 11 Meeting Minutes Planning and Development Board Boynton Beach, Florida May 24, 2005 for minor or major site plan review, did not relate to the fa~ade and colors, but did address the affect on elevation designs. For discussion, Mr. Rumpf passed around some samples of colors to the Board. He noted the Munsell System was a three-digit number that described a color. The system uses hue, value and chroma, which are the three attributes of color. He noted hue is the basis of a color, referred to as the color family using the primary and secondary colors. Value is the lightness or darkness of a color, also known as the gray scale. Chroma is the intensity of a color, also referred to as its strength or saturation. Ms. Jaskiewicz asked if staff discouraged high chroma colors. Mr. Rumpf stated he had some proposed numbers to work from. He said from staff's proposed regulations, they want to regulate trim and accents, which represent the smallest portion of the building, and have the greatest potential for adding complementary colors and character. The base color would represent the greatest portion of the building, and give the building its signature. Ms. Jaskiewicz asked if staff would aim toward the white, grays and beiges for the walls. Mr. Rumpf expressed that was the direction they were going. The Board would see how staff proposed to regulate the secondary color. A secondary paint color could be a small portion or a large portion. Staff purchased the least expensive learning tool for the Munsell system that cost $65.00. Mr. Rumpf explained you could spend over $600.00 on complete sets with 1500 different identified colors, but what they had was a small range to give the Board an example, and to teach the system. Mr. Rumpf expressed that as an incentive for an applicant to meet the ultimate regulations, staff proposed the regulations should read that where there is a discrepancy or uncertainty, or where staff deems the color is not in compliance, the applicant would be responsible for proving its compliance, by providing staff with the Munsell code. Mr. Rumpf stated the objectives of their proposed regulations were: · Make it mandatory for change to be reviewed for color changes on the selected corridors. · Efficient and user-friendly for both staff and the applicant. . Fits into current code structure. · Set its purpose; establish process, limits and penalty. He noted he was awaiting the standard language from the CIty Attorney's office. · They want it to be defensible. 12 Meeting Minutes Planning and Development Board Boynton Beach, Florida May 24, 2005 Mr. Rumpf also noted staff would like to accomplish the following at the current meeting: · Identify color preferences and dislikes (if any). · Confirm or adjust color categories. · Other code provisions/changes · Discuss color limits (chroma and value) · Other - anything that may be necessary for the code. Mr. Rumpf said he attended some sessions on writing codes at the National Planning Conference in San Francisco. One of the things stressed at the conference, was to support your comprehensive plan and be clear. State the objective and the base of the plan. He noted he called this procedure the preamble, and the following text is proposed for Chapter 9, Section 11 (subsection "K"), and would provide the basis and importance of new color regulations: "K. Building colors. Boynton Beach recognizes that project architecture and colors can positively and negatively impact its aesthetic environment, image, and property values. Building colors should be carefully selected to be compatible with and compliment project architecture, colors of fixed elements such as roof materials, and colors of adjacent projects. Project colors will be selected to provide appropriate proportions of, and coordinated base, secondary, trim and accent colors. Project colors are intended to complement and contribute to the surrounding area and city, rather than primarily attract attention to a single project from a distance. The intent of this section is not to require identical colors, but to require the careful selection of colors that will contribute to the overall appearance of the city". Mr. Rumpf stated under the applicability section of Chapter 9, Section 4 (new criterion #5), the new requirements are applicable to changes proposed to approved or existing project colors, for projects that are located along any of the three target roadways. The new criterion would read: "5. When exterior paint colors are to be changed on an existing building located as described in Section lI.K.I (only Subsection I1.K applies to proposed improvement unless project also includes other modifications as described in this chapter). Changes as described in section I1.K.I shall be processed as a major or minor site plan modification, and in accordance with Section II.K of this chapter". Mr. Rumpf explained under the color standards, the proposed standards would read that due to the high visibility of buildings located along Congress Avenue, 13 Meeting Minutes Planning and Development Board Boynton Beach, Florida May 24, 2005 Boynton Beach Boulevard and Federal Highway, the following regulations would apply: a. Commercial/office/industrial projects. Base/main wall color will be light (high "value") colors limited to whites, grays and beiges. Atypical building colors such as purple, pink, blue, green and teal, should be substituted with more common pastels or hue categories such as yellow or peach. Secondary colors will not cover greater than 25% of each individual wall area. Secondary colors will be consistent with the wall color standards, or can be a moderately saturated wall color or a moderately saturated complimentary color. Trim and accent colors may be the most saturated colors allowed, and are encouraged to be complimentary earth tones and/or pastels. The magnitude of saturation will be proportional to the saturation of the wall and secondary colors. If proposed colors are determined by the Planning & Zoning Director to be inconsistent with the intent of this section, applicant shall verify compliance using the Munsell Color Classification System, with eight (8) being the minimum value, and six (6) being the maximum chroma. The maximum allowed difference in saturation between the base color and secondary color is three (3) whole increments. The applicant may be required to provide exact color notations from the Munsell Color Classification System, to confirm compliance with these standards. Ms. Jaskiewicz pointed out that in warmer climates, lighter hues reflect the heat, and the darker colors absorb it. She felt it would be wise for the Board to suggest the lighter chromas. Mr. Rumpf noted there was a trend now, where you are finding darker colors in residential areas. b. Residential projects (excluding one and two family structures). Colors for residential projects are allowed to include a greater gamut of colors, to include whites, beiges and other earth tones, consistent with paragraph "K" of this section, with secondary, trim and accent colors consistent with paragraph "a" of this section. Mr. Rumpf said there were fewer residential projects in some segments of the proposed corridors, but it was necessary to acknowledge it. Ms. Jaskiewicz asked if there was a design specialist with regard to color on staff. Mr. Rumpf stated not at the time, but they have two vacancies, so there was potential to do that. 14 Meeting Minutes Planning and Development Board Boynton Beach, Florida May 24, 2005 Mr. Rumpf referred to Exhibit B in the proposed document, which related to Munsell - Chroma and Value. He asked the Board if six (6) and eight (8) were sufficient value limits or if they should go to nine (9). Mr. Casaine felt they should go up to nine (9) in value, and up to eight (8) in chroma. Ms. Jaskiewicz asked if the value and chroma did not depend on the proportion of accent parts of the buildings. Mr. Rumpf agreed with Ms. Jaskiewicz that buildings are more attractive when they have complimentary colors. There was a discussion about some of the photographs of the buildings and their colors on the PowerPoint presentation. Mr. Rumpf said there was a new office/ industrial building on the southeast corner of Hypoluxo and Seacrest, which had beautiful colors, but they added a deep blue awning. He noted they were not taking all creativity away, but rather putting it where it would accentuate the building. Ms, Jaskiewicz said years ago there was a Community Appearance Board that could take on those issues. Mr. Rumpf noted that when a project is deemed minor, it is processed as a minor change through staff and the permit system. It does not go through the formal review process before the Planning and Development Board and the Commission. He expressed that the way the code is written for Chapter 4 of the Site Plan Review, Section 9 states the "Modification of approved site plan", implies that only the modern projects, which have an approved site plan, would get reviewed for this. He proposed the language be changed to read, "Modification of the site plan", so everything is reviewed. With the exception of a couple members from the CRA Board who felt a Design Review Board should handle the building colors project, Mr. Rumpf pointed out that both the Planning and Development Board and the CRA Board indicated a desire to playa role in it. He stated when staff and the Planning Director make a final decision that a color does not comply, but the applicant says they want the color, and appeal the administrative decision, the case would go to the Commission as an appeal and the staff would present their argument. The case should go before the Planning & Development Board and the CRA Board, because the code defines those Boards as the Technical Boards, defying the standards. The minor site plans are reviewed under consent on the Commission agenda. 15 Meeting Minutes Planning and Development Board Boynton Beach, Florida May 24, 2005 Mr. Rumpf concluded the slide presentation, and stated the Board had not shared a lot about preferences. He pOinted out the Board suggested staff increase the value limits to nine (9), and asked if there were any other discussions. Ms. Johnson asked why the proposal was restricted to the three corridors. Mr. Rumpf pointed out that was the mission of the Commission. Boynton Beach Boulevard, Federal Highway and Congress Avenue are the principle entrances into the City. Ms. Johnson noted Part 111 of the LDRs, Chapter 9, Community Design Plan for Exterior Building Design, section J. stated: "due to the high degree of visibility of buildings located on Hypoluxo Road, Miner Road, Congress Avenue, Lawrence Road, Gateway Boulevard, Quantum Lakes Drive, Old Boynton Road, Knuth Road, Woolbright Road, Boynton Beach Boulevard, Winchester Boulevard, High Ridge Road, Seacrest Boulevard, Golf Road, Ocean Avenue, Federal Highway, Old Dixie Highway, N.E. 10th Avenue and S.E. 36th Avenue; most of which are considered entrances to the City", and questioned why they limited the proposal to only three corridors when development and growth is rampant all over. Mr. Rumpf stated if that was the Board's conviction, it could be recommended to the Commission. Ms. Johnson was concerned it would be detrimental to just have the plan for three streets, when there is tremendous growth on all the streets, and felt it should be consistent. Chair Wische asked if that point could be recommended to the Commission, and Mr. Rumpf noted the Board could recommend anything they felt was important to the project. Ms. Johnson asked the location of S.E. 36th Avenue. Mr. Rumpf stated it was Gulfstream Boulevard. Mr. Casaine felt the industrial areas should be subject to the decision on the colors. Mr. Rumpf noted he did not have the design guidelines proposed for the Heart of Boynton Plan, but stated if they were looking to allow design or character based upon Floribbean, which might be getting a little Caribbean, they may want brighter colors. 16 Meeting Minutes Planning and Development Board Boynton Beach, Florida May 24, 2005 Ms. Johnson asked if adding the proposed language to cover Martin Luther King Boulevard and Heart of Boynton would be the responsibility of the Community Redevelopment Agency. Mr. Rumpf stated it is within the CRA, but the Planning and Development Board did not have to limit their comments. Ms. Johnson pointed out when the paragraph was written, Martin Luther King Boulevard probably was not Martin Luther King Boulevard, or considered an entrance to the City. She definitely thought Martin Luther King Boulevard should be added. Mr. Baldwin pointed out N.E. 10th Avenue was Martin Luther King Boulevard. Ms. Johnson suggested the text be changed to state Martin Luther King Boulevard. Ms. Jaskiewicz noted it was both, because one side said Martin Luther King Boulevard and the other said N.E. 10th Avenue. She also noted one side of S.E. 36th Avenue was Boynton, and the other side was Defray. Mr. Rumpf noted the Commission and the Boards specifically stated they would not want to regulate single-family, duplex dwellings - which are typically exempt from site plan review process. He pOinted out S.E. 36th Avenue, N.E. 10th Avenue, and Martin Luther King Boulevard have a higher percentage of residential structures. Ms. Johnson asked if Floribbean colors meant the Board should increase the Munsell value to nine (9). Mr. Rumpf clarified the Board recommended the Munsell value to be nine (9), and a chroma of (6). Ms. Jaskiewicz questioned if that was a finite statement or a strong suggestion. Mr. Rumpf stated it was currently drafted not to be a suggestion but a standard. If they want to accommodate on a certain corridor a greater variety of the hues, and not limit those groups, then they would need to revise that text for those corridors, because right now they were looking at whites, grays and beiges. That would restrict the Floribbean colors. Ms. Johnson clarified that would not apply to single family dwellings and duplexes and Mr. Rumpf agreed. Ms. Jaskiewicz noted a good example of the Caribbean colors would be in the Delray Commerce Center. 17 Meeting Minutes Planning and Development Board Boynton Beach, Florida May 24, 2005 Mr. Rumpf said Mr. Breese suggested the group category that would help would be pastels, which was allowed under residential projects. He felt they could make a provision to make them pastels but still limit the chroma and the value extents. Ms. Johnson clarified Mr. Rumpf stated legal was going to review the proposal, and Mr. Rumpf agreed. Ms. Johnson felt there was a lot of room for someone to come back at them and ask why is this okay in one part of the city and not in another part of the city. She stated she would defer to the CRA and staff to identify what works for the Heart of Boynton Beach. Ms. Johnson felt the words "should be"; "may be"; and "encouraged to", used in section lA and lB of the Color Standards, left a lot of room for flexibility. Mr. Rumpf stated that was his intent. He said if there was an area where they would not want the flexibility, it should be addressed. If they want to exclude purples, pinks, greens and reds; then the language should state "shall be substituted with more common pastels or hue categories", which would replace the word "should" with "shall". That does not mean you could not have a tint in the white because the base would be white. Anything that meets the.nine (9) value would probably be a white base or very light primary base paint. Ms. Jaskiewicz asked when Mr. Rumpf anticipated it would be in effect. Mr. Rumpf stated it was scheduled to go to the CRA meeting in June, and then to the Commission. It could be converted into Ordinance form very quickly. If it goes to the Commission meeting in June, it could be adopted in July or August. Mr. Rumpf said that was assuming there are not major changes. There would also be a review with the City Attorneys office in that schedule. If there were major changes, staff would recommend coming back to the Planning and Development Board for their thoughts on it. Ms. Jaskiewicz referred to the plans Mr. Rumpf submitted to the Board, and noted they would be inconsistent with what they were discussing. Mr. Rumpf stated it was difficult, and he would be agreeable to allow more time. The wording was intended to allow more flexibility. There is a trend to use darker colors on residential projects. He noted the Starbucks building at Congress and Boynton Beach Boulevard was unique. Mr. Rumpf noted if it was something they wanted to limit, then they could do it with the same structure that they were using in Paragraph A for Commercial and non-residential buildings. 18 Meeting Minutes Planning and Development Board Boynton Beach, Florida May 24, 2005 Ms. Johnson referred to the same plans, which Ms. Jaskiewicz referenced, and asked if that site plan was not already approved for Quantum Lakes. Ms. Jaskiewicz did not think so. Mr. Rumpf clarified there was a master site plan that had been approved, but they were just asking for a modification. Mr. Rumpf noted it was his intent to use the language, "trim and accent colors may be the most saturated colors allowed", to allow that flexibility. 8. Other Mr. Rumpf noted he wanted to answer an earlier question regarding the time extensions for the carwash project. He said they were extended until July because of new advertising requirements. 9. Comments by members None 10. Adjournment There being no further business the meeting was properly adjourned at 8:37 p.m. Respectfully submitted, DXlfJ~ Catherine Wharton Recording Secretary (May 27, 2005) 19 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida June 6, 2005 V. Public Audience None Chairperson Heavilin recognized Commissioner Ensler in the audience. VI. Public Hearing Old Business A. Code Review 1. Project: Building Colors along Major Roadways (CDRV 05-009) (Postponed from May 10, 2005 meeting) City initiated N/A Proposal to amend the Land Development Regulations, Chapters 4 and 9 to limit building colors, and require the review/approval for changes to building colors for buildings located along Boynton Beach Boulevard, Federal Highway and Congress Avenue Agent: Location: Description: Mr. Rumpf gave a PowerPoint presentation and reported the City Commission directed staff to research existing regulations and colors, and to consider regulations to meet the intent of regulating changes in building colors. Staff looked at this for specific corridors in the City, (1) U.S. 1, (2) Congress Avenue and (3) Boynton Beach Boulevard. It was not the intent, however, of staff to limit their research only to those areas and the Planning and Development Board recommended that staff's research go beyond the selected corridors. Mr. Rumpf noted that color regulations could be restrictive and contrary to the Heart of Boynton Plan theme as being "Floribbean." "floribbean" colors could be bright hues of green, yellow and orange. Staff will be asking this Board how they want to approach the colors for the Heart of Boynton. Staff is recommending the following: . The aesthetic appearance of major roadway corridors in the City be maximized. . Establish a regulatory system, which could be subjective. . Regulations must be clear, concise and defensible. Staff will attempt to identify (1) what is on the horizon, (2) to discuss and identify preferences and colors found to be objectionable, (3) to discuss regulatory alternatives, (4) to get the feel for the subjective nature of color regulations in general, and (5) find a way to place an objective limit on colors using the Munsell Color Classification system. Staff also would like to obtain a of consensus or agreement on color groups that would be included in the regulations. They are proposing to add a less subjective element to the regulations, but to set some thresholds. Staff would like to determine what groups of colors are preferred and a group of colors that could be used. Lastly, they need to determine limits of the most intense colors. 2 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida June 6, 2005 Mr. Rumpf said he would introduce some terminology that he would be using throughout his presentation and the different words used to describe the different components of a fac;ade. These definitions are contained in the agenda packet under "Definitions." Also, staff would attempt to show how attractive buildings could be created despite limitation of building colors. Therefore, the components of a building are (1) base, (2) secondary, (3) accent and (4) trim. Slides of various properties were shown and reviewed. Consideration would have to be given to whether their colors would be permitted today. Staff is looking at how the regulations need to be worded or changed to accommodate certain situations being displayed and discussed. Darker colors could be questionable and would be determined on how the standards are proposed. Staff's intent for showing these buildings was to present examples of how color and eye-catching and attractive elements can be introduced into a project without it appearing inappropriate for the project. Next discussed were general regulatory options. Mr. Rumpf reviewed the regulations of eight states throughout the country. Members were directed to the table on the first page of staff's report. The table presents a general example of various regulatory methodologies from the most restrictive to the least restrictive. The most limiting would be a color palette. A color palette would only allow a certain number of colors that developers could select from. The Planning and Development Board and this Board were against this type of regulatory system. Another possibility would be to have subjective codes that would be reviewed by a board. This would mean the colors would be appealing and consistent with adjacent properties. Color standards could be relative standards that would be consistent with established colors in the City. Lastly, the City could have no color requirements whatsoever. Mr. Rumpf pointed out that cities have not adopted very strict regulations, but have merely adopted general descriptions and categories. Slides of colors used throughout different cities were presented and reviewed. Ms. Horenburger referred to the handbook utilized by the City of Naples that they provide developers showing what is acceptable. Currently, the City reviews colors for new projects using the terminology and regulations that speak about compatibility. Mr. Rumpf reviewed major and minor changes to projects. Mr. Rumpf reviewed the language in Part III of the LDR, Chapter 9 (Community Design Plan) that is used to review new projects and is set out in paragraphs Band D of page 2 of the staff report. The language states the building should be designed compatible with an existing character in that area, if it so exists. Staff would apply this thinking to the entire building that would include details, appurtenances and colors. Currently, this is the limit to the City's regulations. Ms. Horenburger was in favor of having a process in place for painting commercial buildings for both new and old buildings. Mr. Rumpf pointed out that staff's proposed changes would address all changes, both old and new, on the selected corridors, except for single-family residences. Staff is proposing to include upper limits, or maximum colors in order to make the regulations defensible and less subjective. In order to achieve this, Mr. Rumpf explained thE;! Munsell Color Classification system that staff is proposing be adopted. Samples of colors were presented to the Board in order to acquaint the Board with the Munsell system. 3 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida June 6, 2005 The Munsell system breaks down colors into three different attributes - (1) hue (color family that is the primary and secondary color), (2) Value, and (3) Chroma, which Mr. Rumpf explained. Mr. Rumpf explained how the process worked. It is not staff's intention to deal with this on a daily basis because it can be very time consuming. The intent of the system is to provide a framework or limit on colors. Staff is proposing that the limits be at 8 for Value (the Planning and Development Board recommended 9) and a 6 for Chroma. This will not severely limit the secondary colors and does not put any limits on the accent or trim colors. What staff wants to achieve is to set maximum limits for the base color. Mr. Rumpf referred to Paragraph K under Part III, Section 11, Exterior Building Design in his report, that in essence states the regulations are important. If the City has to defend the regulations, they have to explain why they are important. He recited from Paragraph K that read, "The intent of this section is not to require identical colors, but to require the careful selection of colors that will contribute to the overall appearance of the City." Mr. Rumpf advised that when exterior paint colors are to be changed on an existing building located in the defined corridors, this section would apply. Actually only Section l1.K would apply to prevent someone who is only painting their building in order to meet rooftop screening requirements of accessory equipment or rooftop equipment, Le., only the paint section would apply. Mr. Rumpf next reviewed the corridors he previously referred to, but noted the language is not entirely new to the Code. Mr. Fenton inquired if the bright-colored village on the south side of Gateway applies to the proposed regulations. Mr. Rumpf referred to Section B of the staff report that deals with residential projects that would allow more flexibility for residential projects. Mr. Rumpf responded that they would be allowed under the new regulations. Mr. Rumpf explained that staff is bringing these proposals forward to have something to start with as a base. Mr. Fenton did not equate the colors presented as being "Floribbean" that he feels are vibrant colors as opposed to the muted colors presented. Mr. Rumpf explained that the colors presented were what were on the street currently, and a majority of them would meet the regulations, but would not allow the intense colors of a Caribbean palette. Residential projects would be allowed a greater gamut of colors that would include white, beige and earth tones. As it is written now, the Caribbean gamut of colors would not be allowed. Mr. Barretta asked what would be considered a "mixed-use" project and Mr. Rumpf stated it would apply to commercial, not residential. Base colors would be light or high value colors, limited to whites, grays, and beiges. Atypical colors such as purple, pink, blue, green and teal will be substituted with more pastels or hue categories, such as yellow or peach. Secondary colors will not cover more than 25% of the wall area and would be consistent with the wall color standards or could be a moderately saturated wall color, or moderately saturated complimentary color. Trim and accent colors would be the most saturated colors allowed and it is encouraged to be complimentary earth tones and/or pastels. If applicants would like to use a color that is out of the recommended ranges, they may be required to provide proof using Munsell chips and research of their own and present them to staff to show what the values of those colors would be and their Chroma number. 4 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida June 6, 2005 Mr. Barretta requested that instead of secondary colors not being greater than 25%, it be stated it could be approximately 25%, because sometimes it might be necessary that a secondary colors could take up 26% or 27%. Mr. Rumpf agreed with this recommendation. Mr. Barretta was also concerned that all buildings have base, secondary and trim colors because some beautiful buildings could be single or two color buildings. He was opposed to a building being mandated to have base, secondary and trim colors. This could eliminate many examples of architecture throughout the world. Mr. Rumpf felt this was a good point, but many remarkable projects referred to by Mr. Barretta are done elegantly with a great deal of architectural appurtenances, elements and details. In that event, Mr. Rumpf felt it would be necessary to state the project would have those elements. Mr. Rumpf noted Mr. Barretta's suggestions. Mr. Myott was not in favor of raising the value up to 9. He thought 8 would be more than sufficient and Mr. Barretta agreed with this. Chairperson Heavilin noted that Mr. Rumpf displayed some very attractive buildings in light blues and teals and questioned if the new regulations would exclude those colors and Mr. Rumpf stated this was possible. Mr. Barretta inquired if pastels, such as yellow and peach, would be allowed. Mr. Rumpf responded that yellow and peach would be encouraged over teal, blue, and purples. Ms. Horenburger questioned why pink would not be allowed. Mr. Rumpf explained that the industry's description of white bases could include yellow. Ms. Horenburger also pointed out that earth tones could encompass a great many colors. Mr. Rumpf stated if the Board wanted to include pink, they could recommend that it be included. Mr. Myott felt it would be helpful if they were provided with the color charts. Ms. Horenburger inquired if the City ever had a Community Appearance Board that reviewed this type of issue. Mr. Rumpf responded that several years ago, the Community Design Plan was divided into three different districts. Depending upon where a project was located within the City, the project would fall within one of three design districts and it would have to be designed according to that district. This included architectural style and palette of colors and elements. Many years ago the City had a Community Appearance Board that reviewed projects and made recommendations. There also was a CRAB Board in the downtown area. Mr. Rumpf pointed out that if the board was comfortable with the color groups, but did not want to be restrictive on the value and chroma, those items could be modified. Mr. Myott questioned whether or not a disclaimer could be included that would say, "or upon consideration and approval of the City Commission and CRA board...". If a developer really did not want to follow the guidelines and was able to make a good enough ease, then the developer would have to convince the board and Commission to vary from the guidelines. Chairperson Heavilin confirmed that an appeals process is included in staff's recommendation. Mr. Myott felt that an appeal could be considered from the beginning, but the developer would know that a higher level of scrutiny would be involved. Ms. Horenburger felt that the developer should have the right to appeal any decision to the City Commission. Mr. Rumpf advised that staff is recommending that the Planning & Development Board or the Community Redevelopment Agency would be the board to hear the appeals and make the decisions. Appeals to the boards are the final step. The developers could not bring the appeals to the City Commission. 5 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida June 6, 2005 Mr. DeMarco pointed out that developers should have an opportunity to try out a color on a wall since small paint chips can be deceiving. Many times the color is much darker on the wall than it appears on the paint chip. Mr. Rumpf felt there would be no problem with the developer splashing paint on the wall to ensure it is the correct color. Mr. Rumpf explained that there will always be a case where someone will not comply with the standards. It might be necessary to include language stating that the board or Commission could approve a project regardless of whether or not it meets the standards. Chairperson Heavilin felt it was necessary to have flexibility since there may be projects in the Heart of Boynton that would not be held to these standards. Mr. Rumpf explained that the majority of the projects in the Heart of Boynton will be residential buildings with bright colors. The "Floribbean" palette is different from the standards indicated. Mr. Fenton would like the word "and" changed to "or" in Number 5. The way it currently reads, review before both boards would be necessary. He is hopeful that the Planning & Development Board will be reviewing the ones outside the CRA and the CRA will be reviewing the projects within the CRA area. Mr. Rumpf confirmed that this was the intent and agreed to change the word "and" to "or". Ms. Horenburger referred to Page 8454C, Item B, Residential, and questioned whether that referred to only new projects or an existing structure. Mr. Rumpf responded that this referred to both changes and new projects. The entire chapter on new construction applies to the project. That text would fall under that chapter. On an existing project, Number 5 applies. Ms. Horenburger questioned how the people owning existing projects would know that they must meet certain regulations. Mr. Rumpf said that the City will have to get the word out. Mail-outs could be used. Mr. Rumpf feels direct notification works best. Ms. Horenburger suggested providing notices to establishments that sell paint. Ms. Horenburger asked what process is in place for existing commercial establishments within the corridor for a change in paint color. Chairperson Heavilin referred to 8454G. Mr. Rumpf referred to the major or minor criteria section in Chapter 4, Site Plan Review. These paragraphs explain what needs to be submitted. Mr. Barretta pointed out that multi-family projects are part of the residential criteria and a Mixed-Use project must follow the commercial criteria. He felt this needed more consideration. Mr. Rumpf explained that a majority of the mixed use projects will be on major corridors and based on the restrictions of Mixed-Use High and Mixed-Use Low. They do not have the same characteristics as residential projects. Mr. Rumpf said compatibility text is included in the guidelines and staff has the ability to review a project against the compatibility text. Mr. Fenton questioned how this would proceed after the CRA review. Mr. Rumpf said the board would not receive a final document. If the CRA feels comfortable with Mr. Rumpf's level of comfort of the compatibility text, then this will move forward. If the board is not comfortable, then the standards would require more language. Mr. Rumpf pointed out that changes that were requested by the Planning and Development Board that dealt with the change in value and rate, the topic of the Heart of Boynton and the Floribbean impact to the CRA, and the "should", and "will" would move forward to the Commission, unless the board is not comfortable with something in the text and would like a change made to the document. 6 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida June 6, 2005 Chairperson Heavilin said the Planning & Development Board recommended that the corridors be expanded to Hypoluxo Road, Miner Road, Lawrence Road, Knuth Road, Quantum, etc. Mr. Fenton wanted to know how many specific changes the CRA asked for and on the color palette, the minimum value they wanted to go to was 8 and they got 9. He felt this was a conflict. Mr. Barretta disagreed because he felt it could be one value in the CRA and another in the remainder of the City. Mr. Myott reminded the members that Mr. Rumpf's recommendation was for 8. Mr. Rumpf said staff will communicate all of the recommendations to the Commission. For the board's edification, Mr. Rumpf enumerated the board's specific changes as follows: 1. The limit to the secondary color is proposed at 25%. It was recommended to add the word "approximately". 2. Allow some wording to provide some flexibility so that it is not required to have all the four different components to the colors - prime or base, secondary, accent, trim. If the building has the physical attributes, architectural character and style, then it would not be required to have all those different colors. 3. Keep the minimum value at 8 versus 9. 4. Change in wording where it describes the appeals boards from "and" to "or". 5. The board expressed great emphasis on getting the word out and educating the public on this. 6. A little bit of concern was sensed on Mixed-Use projects and whether they are Residential or the Commercial (non-residential) category, and compatibility. Chairperson Heavilin announced the public hearing. Commissioner Bob Ensler felt it was appropriate to make some comments on this issue since there has been a great deal of press on this issue. This issue arose out of Commissioner Ensler's concern over the color of several buildings on major arteries throughout the City. In addressing these concerns with Messrs. Bressner and Rumpf, Commissioner Ensler learned that the way the Code is currently written, color is a minor site plan modification that does not require City approval. When the City Attorney got involved, he recommended that the City establish criteria in order to protect the City legally. Commissioner Ensler reviewed documents from 1992 wherein concern was expressed by Commissioners relative to lack of harmony of color of certain buildings. In 1994, there was Commission discussion about making projects more aesthetically pleasing. Even back in the 1970s when Emily Jackson was Mayor, there were discussions about compatibility of structures within the City. Commissioner Ensler reiterated that his major concern was with the major arteries and the commercial areas located along those major arteries. His concern was not with residential. Michael Weiner, Weiner &: Aronson located on Sea crest Boulevard, felt it was good to hear the board state their concern about limiting creativity in Boynton Beach. While there should be community standards, it is important to remember that laws are being legislated. Laws should be a 7 Meeting Minutes Community Redevelopment Agency Boynton Beach, Florida June 6, 2005 last resort in curbing human behavior. The few times that people have erred in bad taste may not be a reason to put the City into a position of regulating color. It is important not to eliminate quaint. These things give character to a City. It would be a shame to eliminate that possibility. Ms. Horenburger stated the Spinosa theory as quoted by William F. Buckley. "My right to punch you in the nose stops right at the tip of your nose where your right not to be punched begins." We all need to have a voice and be involved. With no one else wishing to speak, Chairperson Heavilin closed the public hearing. Mr. Barretta commented that staff had done a good job. Chairperson Heavilin referred to the base color and the comment that it be expanded beyond white, beige and gray, to light pastels. It is her opinion that this is too limiting. Mr. Myott felt that these hues would be included in the whites, beiges and grays. There are tints to these base colors. Ms. Horenburger asked that Gulfstream Boulevard be added to the list of major arteries. Mr. Rumpf advised that staff wrestled with what 36th Avenue was and then determined that it is Gulfstream Boulevard. Mr. Hutchinson felt it was necessary to have something to hand out that would show the details of the hues and the ranges. We need to give a more accurate portrayal of the color areas that have been discussed. Mr. DeMarco congratulated the Planning and Zoning Division for a job well done. Mr. Barretta felt that Mr. Rumpf had summarized the board's request very well and he did not feel the need to see the document again. Ms. Horenburger agreed. Messrs. Myott and DeMarco requested a copy of the colors once they are available. Motion Mr. Myott moved to proceed to the City Commission with the board's comments noted. Ms. Horenburger seconded the motion that carried unanimously. New Business A. Abandonment 1. Project: Agent: Owner: Location: Description: 415 SE 5th Avenue (ABAN 05-002) - 8455 Jeanne Heavilin, Salefish Realty, Inc. James E. Ploen 415 SE 5th Avenue Request abandonment of a portion of Railroad Avenue, approximately 30 feet by 77 feet, immediately north of 5th Avenue South, west of Lot 11, Block B of Pence Subdivision and East of the Florida East Coast Railroad right-of-way Chairperson Heavilin recused herself from the discussion of this case and passed the gavel to Mr. DeMarco. 8