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Agenda Council Agenda 120210
CITY OF PALM BEACH GARDENS COUNCIL AGENDA December 2, 2010 7:00 P.M. Mayor Levy Vice Mayor Premuroso Council Member Russo Council Member Jablin Council Member Tinsley I. PLEDGE OF ALLEGIANCE II. ROLL CALL III. ADDITIONS, DELETIONS, MODIFICATIONS: IV ANNOUNCEMENTS / PRESENTATIONS: V. ITEMS OF RESIDENT INTEREST AND BOARD /COMMITTEE REPORTS: VI. CITY MANAGER REPORT: VII. COMMENTS FROM THE PUBLIC: (For Items Not on the Agenda, please submit request form to the City Clerk prior to this Item) VIII. CONSENT AGENDA: a. (Staff Report on Page 4, Resolution on Page 6) RESOLUTION 87, 2010 - PURCHASE OF THREE (3) TURF MOWERS. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA APPROVING A PURCHASE AWARD TO WESCO TURF, INC. FOR THREE (3) TURF MOWERS PURUSANT TO AN EXISTING CONTRACT WITH THE STATE OF FLORIDA; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. b. (Staff Report on Page 89, Resolution on Page 91) RESOLUTION 92, 2010 - IDENTITY THEFT PREVENTION PROGRAM. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA APPROVING AN "IDENTITY THEFT PREVENTION PROGRAM" IN ACCORDANCE WITH THE REQUIREMENTS OF THE FAIR AND ACCURATE CREDIT TRANSACTIONS ACT OF 2003; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. IX. PUBLIC HEARINGS: (* Designates Quasi - Judicial Hearing) a. *(Staff Report on Page 108, Ordinance on Page 126, Resolution on Page IL11 ORDINANCE 24, 2010 — (2ND READING AND ADOPTION- CONTINUED FROM NOVEMBER 18, 2010) AT &T PLANNED UNIT DEVELOPMENT (PUD). AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA REZONING CERTAIN REAL PROPERTY WITHIN THE CORPORATE LIMITS OF THE CITY OF PALM BEACH GARDENS, CONSISTING OF ONE (1) PARCEL OF REAL PROPERTY COMPRISED OF ONE (1) PLATTED LOT TOTALING 0.93 ACRES, MORE OR LESS, IN SIZE, LOCATED ON THE NORTH SIDE OF NORTHLAKE BOULEVARD APPROXIMATELY 500 FEET EAST OF NORTH CONGRESS AVENUE, WITH A STREET ADDRESS OF 3005 NORTHLAKE BOULEVARD, INFORMALLY KNOWN AS THE "AT &T PROPERTY'; PROVIDING THAT THIS PARCEL OF REAL PROPERTY, WHICH IS MORE PARTICULARLY DESCRIBED HEREIN, SHALL BE ASSIGNED THE CITY ZONING DESIGNATION OF PLANNED UNIT DEVELOPMENT (PUD) OVERLAY WITH AN UNDERLYING ZONING DESIGNATION OF GENERAL COMMERCIAL (CG -1); PROVIDING THAT THE ZONING MAP OF THE CITY OF PALM BEACH GARDENS BE AMENDED ACCORDINGLY; PROVIDING A CONFLICTS CLAUSE, A SEVERABILITY CLAUSE, AND AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. RESOLUTION 75, 2010 IS A COMPANION ITEM TO ORDINANCE 24, 2010 AND WILL REQUIRE COUNCIL ACTION *RESOLUTION 75, 2010 - AT &T PLANNED UNIT DEVELOPMENT (PUD). A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA APPROVING THE AT &T PLANNED UNIT DEVELOPMENT (PUD) SITE PLAN, AS MORE PARTICULARLY DESCRIBED HEREIN; PROVIDING WAIVERS; PROVIDING CONDITIONS OF APPROVAL; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. b *(Staff Report on Page 141, Ordinance on Page 157) ORDINANCE 27, 2010 — (1ST READING) REZONING PARCEL 18.A07). AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA REZONING ONE (1) PARCEL OF REAL PROPERTY CONSISTING OF APPROXIMATELY TWELVE AND 39/100 (12.39) ACRES, MORE OR LESS; SUCH PARCEL BEING LOCATED GENERALLY AT THE NORTHWEST CORNER OF THE INTERSECTION OF HOOD ROAD AND THE FLORIDA TURNPIKE, INFORMALLY KNOWN AS "PARCEL 18.A07 ", AS MORE PARTICULARLY DESCRIBED HEREIN, FROM PALM BEACH COUNTY RESIDENTIAL SINGLE FAMILY (RS) AND RESIDENTIAL ESTATE (RE) TO CITY OF PALM BEACH GARDENS RESIDENTIAL LOW, UP TO 4 UNITS PER ACRE (RL -2) ZONING DISTRICT; PROVIDING FOR REVISIONS TO THE ZONING DISTRICT MAP; PROVIDING A CONFLICTS CLAUSE, A SEVERABILITY CLAUSE, AND AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. X. RESOLUTIONS: a. (Staff Report on Page 162, Resolution on Page 172) RESOLUTION 85, 2010 - POLICE PENSION BOARD REAPPOINTMENTS. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA RE- APPOINTING TWO (2) MEMBERS TO THE BOARD OF TRUSTEES OF THE CITY OF PALM BEACH GARDENS POLICE OFFICERS' PENSION FUND; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. XI. ITEMS FOR COUNCIL ACTION /DISCUSSION: XII. CITY ATTORNEY REPORT: XIII. ADJOURNMENT PLEASE TAKE NOTICE AND BE ADVISED that if any interested party wishes to appeal any decision made by the City Council with respect to any matter considered at this public hearing, such interested persons will need a record of the proceedings and may need to ensure that a verbatim record is made, including the testimony and evidence upon which the appeal is to be based. In accordance with the Americans with Disabilities Act and Section 286.26, Florida Statutes, persons with disabilities needing special accommodations in order to participate in this proceeding are entitled to the provision of certain assistance at no cost. Please call the City Clerk's Office at 561- 799 -4122 no later than 5 days prior to the hearing if this assistance is required. For hearing impaired assistance, please call the Florida Relay Service Numbers: 800- 955 -8771 (TDD) or 800- 955 -8770 (VOICE). NOTE: All presentation materials must be received by the City Clerk prior to the presentation to the Council. CITY OF PALM BEACH GARDENS CITY COUNCIL Agenda Cover Memorandum Meeting Date: December 2, 2010 Resolution 87, 2010 Subject/Agenda Item: Purchase Award of three (3) turf mowers from Wesco Turf, Inc. via an existing term contract with the State of Florida (No. 760 - 000 -10 -1) in the amount of $60,662.48. [X] Recommendation to APPROVE [ ] Recommendation to DENY Reviewed by: Originating Dept.: Costs: $60.662.48 Council Action: (Total) City Atto Parks Director ,. [ ] Approved [ ]Approved w/ Mike Kelly C/ $60.662.48 conditions ax ohman, Esq. Current FY [ ] Denied ( ] Continued to: Advertised: Funding Source: Finance dministrator Date: [ ] Operating Attachments: Paper: [ X ] Other Resolution 87, 2010 - Exhibit "A ": Wesco Turf Quote Allan Owens [ x ] Not Required - Exhibit "B ": State of Florida Contract Submitted by: Deputy Ci Mana e J. E. Doughney, III Affected parties [X] Notified Budget Acct. #: 001.2080.519.6400 Approved by: City Man (]Not re Ro ald . F rris Meeting Date: December 2, 2010 Resolution 87, 2010 Page 2 of 2 BACKGROUND: The Parks Division requests the purchase of three (3) Toro mowers for turf maintenance in the City's parks operation from Wesco Turf, Inc. via an existing State of Florida Contract (No. 760 - 000- 10 -1). The first mower is a High Speed rotary fine cut unit specifically designed for use on Bermuda turf fields. The unit is extremely maneuverable and will be utilized in areas such as youth baseball fields where the ability to make turns in small areas is critical. This mower replaces a larger reel mower that has difficulty maneuvering in these areas, and the maintenance costs will decrease considerably using the new rotary mower. The other two (2) identical mowers are referred to as Zero Turn rotary mowers because of their full turn capability. These mowers are utilized in common areas, passive parks, and generally, all areas other than sports playing fields. These mowers will be replacing 12- year old mowers that have exceeded their useable life cycle. If approved, the mowers will be maintained by the local Toro representative, Hector Turf, Inc. Each mower includes a 48 -month extended maintenance plan. Funding is provided by the General Fund as detailed in the FY 2010/2011 Capital Outlay plan. STAFF RECOMMENDATION: Staff recommends approval of Resolution 87, 2010 as presented. 1 2 3 RESOLUTION 87, 2010 4 5 6 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM 7 BEACH GARDENS, FLORIDA APPROVING A PURCHASE AWARD 8 TO WESCO TURF, INC. FOR THREE (3) TURF MOWERS 9 PURUSANT TO AN EXISTING CONTRACT WITH THE STATE OF 10 FLORIDA; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER 11 PURPOSES. 12 13 14 WHEREAS, the City desires to purchase three (3) turf mowers from Wesco Turf, 15 Inc.; and 16 17 WHEREAS, Section 2 -294 of the City Code of Ordinances permits the City to 18 "piggyback" an agreement awarded by another governmental agency pursuant to a 19 competitive sealed bid; and 20 21 WHEREAS, the City has received a quote from Wesco Turf, Inc., attached hereto 22 and incorporated herein as Exhibit "A ", to provide such equipment; and 23 24 WHEREAS, based on the recommendation of City staff, the City wishes to award 25 this purchase to Wesco Turf, Inc. based on an agreement executed by the State of 26 Florida effective April 28, 2010, through June 30, 2012, a copy of which is attached 27 hereto as Exhibit "B "; and 28 29 WHEREAS, the City Council deems approval of this Resolution to be in the best 30 interests of the health, safety, and welfare of the residents and citizens of the City of 31 Palm Beach Gardens and the public at large. 32 33 34 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 35 OF PALM BEACH GARDENS, FLORIDA that: 36 37 SECTION 1. The foregoing recitals are hereby affirmed and ratified. 38 39 SECTION 2. The City Council hereby approves the purchase of three (3) turf 40 mowers from Wesco Turf, Inc. in the amount of $60,662.48, based on an existing 41 contract with the State of Florida (Number 760 - 000- 10 -1). 42 43 SECTION 3. This Resolution shall become effective immediately upon adoption. 44 45 46 47 Page 1 of 2 1 PASSED AND ADOPTED this 2 3 4 5 6 7 8 9 10 ATTEST: 11 12 13 BY: 14 Patricia Snider, CMC, City Clerk 15 16 17 APPROVED AS TO FORM AND 18 LEGAL SUFFICIENCY 19 20 21 BY: 22 R. Max Lohman, City Attorney 23 24 25 26 27 VOTE: 28 29 MAYOR LEVY 30 31 VICE MAYOR PREMUROSO 32 33 COUNCILMEMBER RUSSO 34 35 COUNCILMEMBER JABLIN 36 37 COUNCIL MEMBER TINSLEY 38 39 40 41 42 43 44 45 46 Resolution 87, 2010 day of , 2010. CITY OF PALM BEACH GARDENS, FLORIDA BY: David Levy, Mayor AYE NAY ABSENT 47 G:\ attorney_share \RESOLUTIONS\2010 \Resolution 87 2010 - Wesco Mowers.doc Page 2 of 2 Resolution 87, 2010 EXHIBIT "A" a 1301 N.W. THIRD STREET / DEERFIELD BEACH, FL 33442 TEL: (954) 429 -3200 , FAX: (954) 360 -7657 October 27, 2010 Mr. Mike Kelly City of Palm Beach Gardens 10500 N. Military Trail Palm Beach Gardens, FL 33410 Dear Mr. Kelly, We are pleased to offer the enclosed quotation for your consideration. The .enclosed quotation is based upon your acceptance within sixty days (60) from the date of this letter and is subject to manufacturer's availability and Florida State Sales Tax (if applicable). Our terms of sale are Cash. on Delivery or upon credit approval, Net 10 Days. Thank you for the opportunity to provide you a quotation. If you have any questions or require additional information, please contact me at .(954) 429 -3200 Extension 310. We appreciate your interest and look forward to doing business with you. Sincerely,. HECTOR TURF Chris Fordney Account Representative Government and Munic CF.jac Enclosure - , lar 1301 N.W. THIRD STREET 1 DEERFIELD BEACH, FL 33442 TEL: (954) 429 -3200 • FAX: (954) 360 -7657 Florida State Contract Ordering Process 1. Purchase order must be made out to Wesco Turf, Inc. and reference Florida State Contract #760- 000 -10 -1. 2. Purchase orders may be .either faxed or mailed to the following: Fax to: Wesco Turf, Inc. Attn: Ms. Sondra Gay Fax# 941 - 487 -6839 Fax# 941 - 371 -2967 Mailed to: Wesco Turf, Inc. Attn: Florida State Contract 2101 Cantu Court Sarasota, FL 34232 -6241 3. Once the purchase order is received by Wesco Turf, Inc., the purchase order will be forwarded to the appropriate distributor to process and deliver. Please note that all service and warranty repairs will be provided by the delivering distributor. 4. Invoices will be mailed to customers and payment should be made to: Wesco Turf, Inc. P.O. Box 861493 Orlando, FL 32886 -1493 Note: failure to follow this procedure may result in delay of delivery. 1301 N.W. THIRD STREET / DEERFIELD BEACH, FL 33442 TEL: (954) 429 -3200 • FAX: (954) 360 -7657 Quotation Provided for City of Palm Beach Gardens October 27, 2010 Qty. Model # Description Unit Price 1 ea 30461 Toro Groundsmlaster 7200 Heavy Duty Zero Turn Mower with: - 28 HP Kubota Diesel Engine - Direct P.T.O. Drive - Base Deck - 2 Year Limited Warram $20,877.00 1 ea 30304 72" Guardian Rec cler Completion Kit 362.00 1 ea 30375 Jack Stand Kit 217.00 Subtotal $21,456.00 Florida State Contract Discount 4,505.76 Total $16,950.24 Parts & Accessories 1 ea I C439 48 Month or 2400 Hrs Comprehensive Plan 820.00 Grand Total $17,770.24 Pricing per Florida State Contract # 760- 000 -10-1 Effective 4/28/10 — 6130112 Note: ➢ Issue purchase order to Wesco Turf, Inc. ➢ -Shipment and service via. Hector Turf Provided by: Chris Fordney 954429 -3200 Set Pricing Page 1 of 1 Hello Chris Fordney I Hector Turf Home I Account Activity I Help I Logoff 1, CtlonsO Crltegory Z,. Setect M0401 3• Configure Product 4. Set Pricing 6. Review Quote S. Create Proposal Set Pricing and Quantity Customer: _„HeetoriQuoteSFG(TaxSupported) Traction Unit Ad $21,456.00 "ntity 1 J $16,950.24 Choose a Program * Florida State Contract 21.00% Trade In No Rebate $ Rebate% $0.00 al 0.0 Groundsmaster 7200172" Base Deck for Guardian Recycler or Rear Discharge Configuration Product Qty Description Ext MSRP Award ante 113d Award 10 price Price Groundsmaster 7200172" Base 1 Deck for Guardian Recycler or 30461 $20,877,00 $16,492,83 $16,492,83 Rear Discharge Configuration Cutting Decirs 1 72" Guardian Recycler 3030 Completion Kit $352.00 $285.98 $285.98 Mowing Unit Attachments 1 Jack Stand Kit 3.0325 $217.00 $171.43 $171.43 SUBTOTALS $21,45640 $16,950.24 Toro Protection Pips Move TOTALS $21,456.00 $16,950.24 CONFIGURED PRICE MSRP $21,456.00 Award Price $16,950.24 % off MSRP 21.00% PROFITABILITY ANALYSIS Rebate $ Rebate% $0.00 al 0.0 Copyright p 2010 The Toro Company - All rights reserved, Terms ofd https: / /iquote.toro. com/Comergent/en/US/ direct / toro?cmd= ToroProductConfiguratorS etP... 10/27/2010 E ]I::*: 1301 N.W. THIRD STREET / DEERFIELD BEACH, FL 33442 TEL: (954) 429 -3200 • FAX: (954) 360.7657 Quotation Provided for City of Palm Beach Gardens October 27, 2010 Pricing per Florida State Contract # 760- 000 -10 -1 Effective 4/28/10 — 6/30/12 Note: Issue purchase order to Wesco Turf, Inc. ➢ Shipment and service via Hector Turf Provided by: Chris Fordney 954- 429 -3200 Model IN Description Unit Price 1 ea 30826 Toro Groundsmaster 3505 -D Fine Cut Rotary Mower with: - 35 HP Diesel Engine - 72" Cutting Width - 2 Year Limited Warran $33,669.00 Florida State Contract Discount 7,070.49 Subtotal $26 598.51 Toro Promotional Discount (3,029.51) Total 23t569.00 Parts & Accessories 1 ea SG -UN -TR Sun and Canopy To 295.00 1 ea C481 TPP 48 Month/ 2,400 Hrs. Comp. Plan 1,258.00 Grand Total $25,122.20j Pricing per Florida State Contract # 760- 000 -10 -1 Effective 4/28/10 — 6/30/12 Note: Issue purchase order to Wesco Turf, Inc. ➢ Shipment and service via Hector Turf Provided by: Chris Fordney 954- 429 -3200 Set Pricing Page 1 of 1 Hello Chris Fordney I Hector Turf Home I Account Activity I Help I Logoff .1... Ch4otla..Ca..tegory. 2, Select Modgi 3, Configure P.roduot 4. Set Pricing S. Review Quote G. Create Proposal Set Pricing and Quantity Customer: _HectoriQUoteSFG(TaxSupported) Traction UnitI MSRP $33,669.00 Award Price Quantity % off MSRP 21.00% PROFITABILITY ANALYSIS Choose a Program ' Florida State Contract Rebate $ Rebate% $OAO ►.1 Trade In No , Groundsmaster 3505 -D Qty Description Product Ext MSRP unit Award Ext Ate« Price 1 Groundsmaster 3505 -D 34$ZS $33,669.00 ;26,598.51 $26,598.51 SUBTOTALS $33,669.00 $20,598.51 Toro Protection Pius 1 None TOTALS $33,669.00 $26,596.51 CONFIGURED PRICE MSRP $33,669.00 Award Price $26,598.51 % off MSRP 21.00% PROFITABILITY ANALYSIS Rebate $ Rebate% $OAO ►.1 Copyright (9) 2010 The Toro Company - Ali rights reserved, TeMIS of Use https: / /iquote. toro. com /Comergent/en/US/ direct /toro ?cmd= ToroProductConf guratorSetP... 10/27/2010 Resolution 87, 2010 EXHIBIT "B" n c W 0O T w LL ~Q ° W J Y W c E 0 J J d (n D Q W W Q = U W d cc W G Z E �° ~ z �Q OL.L Z 0� ��C) Dw2 LU c p O Da- >> FDC7WUQ > U0Z Z m E m Y > q C) v U Z 2' W w Z 0 D w U D - U O Z I- D= U U (n Q D w J a 0 ° o J wzZQa0 W Wcnzg W F-�Jg Z WU 20Z $ W Q�22Z z W D W LLJ w ~ oa ��UW w °� OaQODwG C 0LLJ> Y m �Z Z SmwE W ZdF cn L o W Y S J W S~ Od U Q U) � Z W 0 Z� F- Q D IL SJ w <D U W =C�(nJ � W � W W} <C) QDJ CL on E Z Y> 2 �O >�cnQ> p w 2 W a-M f-� U Q J W J UHw Q W Q Z C7 ~ T0 ° p �z<o6 JZ_�OJV%Z 0Q� W W��D,�pO v y °m d Q'F - � �YU Y �DUJWD YI- WS J WU�wN W .6 � 2 w U W 2 F- c 'm Uz_O Q< ��Qa rzU LLJ JDDo� W LIJ�Oww< U ci O Z c W o����' Q J d W U U Z�wol3Ow 2 Q O J J wmJYD W Q Y W J QU Z wU` ~ ao6<w W J F-- W J w YX> U U ZX�Ud� D UC7�z(n D �z 0 D Lli > $ D > 0wU D J 3: Q_ U) w W 0 Q CL }�wQU� Q � Q O w U) pmD W LL O Q m W wQrLOU W i F D T ° c 'c -0 ° ° N _ 0 Q cf Q �U(n> LL Y a: O~ JU` w U 2= >�ww F-- � U >~ �O>W Z R' U' F- �QC� (n Jw0Ud' U O Z - Uw w U z - L.a U0U W O Z o6wC7w >U` �p W =o�Uaw Z� O O ° O O Q >wWWW2 Of Of Q' D i- Y J Z W0 J JJD- W aZZ}Zw D D a C 0 Z �. o a F Q UNQQQO w D D D Y JU QQQ (n O cn W JW SOW m SOH C7- Z 2 Q 022 W w- z w� V ° E c ` > o o o U OX0000<W W D J J J m J U�UQOS w LL U�W 2 DQJ2� 0 0 w LL (n w 2�F- [if wL11�D(n�LLw O] m Z< J �' 2 ..' �' c .9 O J J J J Q J Q J Q J Q D Z a W} J F� Q 0 m w > cG S W O D U D Z W w 0 w LL D Z D Z� Ur °2S w = (n D Ur Z O 0 T E - Of - - a= J Q ?j J Q O SU` Q- Z Q¢ 2 D Z= H< H Z Z� D D Z L 3 o � z ° U cn D n(n(n(ncncn D D D D D D UD�D �QH� w LL W QWmm� �� M 0(n J QU H (nU�� Y� Q Q ��� Q w > m L° y m D D D D D D D a J U F- LL Z 0 G J W J O W Z d cn 3 W < F J <<��� J J J Q W Z Q � LL o o o z z z z z z zo D v~ }< a = J w, N�� w Q Q F Z z D� D O m °L o 3 X a m z 0000000 z z z z z z W JO�OU a��-'- w > W >Qoi3 J D W -� W F- W Za z w -U Q ZZUUZOwLL 0 HH 0 F F Q O W N L W o D H UUUUUUUF� H- w Q D U 2 Z> LL Q W H D w 2 Q Q O D w a> c o o G) Z - ° m D D D D D DDH���> wJQD�C?2Dd� w'00z UU _�� �U�QQ���w>� JJH�LL N 7� E r �.m o of HE � Of HHHH� ���� LL r000 W J W (p �Q�p� w W W fn c D 0 U) Z U) Z U) Z U) Z Z Z cn Z Y U UU� U J LU LL W DS WW ZF- U J ZZ�D >W> W> W W> W 7> W W> LL J v E E O O O O O O O O� Q Q af Q 01 S F w J J� N= J> U U w O W rL O w>>> Q J W 0 0 0 0 0 0 0 0 am ° � = UUUUUUULLH - HD >QQQ?D�m(nJm0 0 O O O O a L c Ta 0 2 Z5 o E °. 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ZZ J r N (j J W O N r� v> v �n N Oz Z Q m c d Division of State Purchasing 4050 Esplanade Way, Suite 360 DE�rfiv NT OF MANAGEMENT Tallahassee, Florida 32399 -0950 Tel: 85 0.488.8440 488440 Be Fax: 850,414-6122 da. m www.dms.MyFlorida.com Governor Charlie Crist Secretary Linda H. South CERTIFICATION OF CONTRACT TITLE: Construction, Industrial, Agricultural, & Lawn Equipment CONTRACT NO.: 760 - 000 -10 -1 ITB NO.: 03- 760 -000 -S EFFECTIVE: April 28, 2010 through June 30, 2012 CONTRACTOR(S) (REV 11 JUN 2010): ADM Ventures, Inc. dba Yale Lift Trucks of Florida & Georgia (A) Alamo Industrial dba Alamo Sales Corp. (A) American SportWorks LLC (A) Ariens Company — Gravely (A) Barloworld Handling LLC (A) Best Equipment & Repair Inc. (A) Bobcat Company (A) CNH America LLC (A) Construction Sales & Service, Inc. (A) Excel Industries Inc. dba Hustler Turf Equipment (A) Florida Outdoor Equipment, Inc. (R) Glade & Grove Supply Co., Inc. (A) Golf Ventures (A) Gradall Industries, Inc. (A) G S Equipment, Inc. (A) Gulf Coast Turf and Tractor LLC dba Gulf Coast Tractor and Equipment (A) JCB, Inc. (A) John Deere Company — A Division of Deere & Company (C &CE Division) (A) John Deere Construction Retail Sales (A) Kelly Tractor Co. (A) Komatsu America Corporation (A) Live Oak Lawn Supply, Inc. (R) Magic Circle Corporation dba Dixie Chopper (A) Nortrax Equipment Company SE LP (A) Ring Power Corporation (A) Roberts Supply, Inc. (A) Robinson Outdoors, Inc (A) Sarlo Power Mowers, Inc. (A) Stihl Southeast, Inc. (A) Superior Tractor Company (A) Suwannee River Kubota LLC (A) Tiger Corporation (A) Trekker Tractor, LLC (A) Triple D Equipment, Inc. (A) U.S. Shoring & Equipment Co. (A) Wesco Turf, Inc. (A) We serve those who serve Florida. A. AUTHORITY — Upon affirmative action taken by the State of Florida Department of Management Services, a Contract has been executed between the State of Florida and the designated Contractor(s). B. EFFECT — This Contract was entered into to provide economies in the purchase of Construction, Industrial, Agricultural, & Lawn Equipment by all State of Florida agencies and institutions. Therefore, in compliance with Section 287.042, Florida Statutes, all purchases of these commodities shall be made under the prices, discounts, requirements, specifications, terms, and conditions of this Contract and with the Contractor(s) specified. C. ORDERING INSTRUCTIONS — All purchase orders shall be issued in accordance with the attached ordering instructions, requirements, terms, and conditions. Purchaser shall order at the prices and discounts indicated, exclusive of all Federal, State, and local taxes. All Contract Purchase Orders shall show the State Purchasing Contract Number, Commodity Group Number, Line Number, Commodity(ies) Description, quantity, with unit prices extended and purchase order totaled. (This requirement may be waived when purchase is made by a blanket purchase order.) D. CONTRACTOR PERFORMANCE — Agencies shall report any Contractor failure to perform according to the requirements of this Contract on Complaint to Vendor, form PUR7017. Should the Contractor fail to correct the problem within a prescribed period of time, then form PUR7029, Request for Assistance, is to be filed with this office. E. SPECIAL AND GENERAL CONDITIONS — Special and general conditions are enclosed for your information. Authorized Signature (date) DSP /cw Attachments 2 CONTRACT MANAGER NAME: CHRISTOPHER WALKER TELEPHONE: 850 - 488 -7540 E -MAIL: christopher .walkerAcims.mvflorida.com [The remainder of this page is intentionally left blank (other than footer information).] TABLE OF CONTENTS 1.0 INTRODUCTION 2.0 GENERAL INSTRUCTIONS TO RESPONDENTS [PUR1001 (10/06)] 3.0 SPECIAL INSTRUCTIONS TO RESPONDENTS 4.0 GENERAL CONTRACT CONDITIONS [PUR1000 (10/06)] 6.0 SPECIAL CONDITIONS 6.0 TECHNICAL SPECIFICATIONS 7.0 PRICE SHEET & ORDERING INSTRUCTIONS AND FORMS [The remainder of this page is intentionally left blank (other than footer information).] 4 SECTION 1.0 INTRODUCTION CONTENTS: 1.1 PURPOSE AND SCOPE 1.2 TIMELINE [The remainder of this page is intentionally left blank (other than footer information).] 1.1 1.2 Purpose and Scope The State of Florida ( "State "), Department of Management Services ( "Department "), invites interested Vendors, including Construction, Industrial, Agricultural, & Lawn Equipment Manufacturers and Dealers, to submit Responses in accordance with these solicitation documents. The purpose of the solicitation is to establish a State Term Contract for the acquisition of Construction, Industrial, Agricultural, & Lawn Equipment with potential options for renewals as allowed by Chapter 287, Florida Statutes. The intent of the solicitation is to obtain the most cost effective Construction, Industrial, Agricultural, & Lawn Equipment for the State of Florida while maximizing availability, quality, and level of service. Qualified Vendors must have the capability to provide Construction, Industrial, Agricultural, & Lawn Equipment in all respects in accordance with the solicitation documents and to the satisfaction of the Department. The State Term Contract period, if awarded, is anticipated to begin on the Contract Formation date, per Section 2.17, and to end June 30, 2012, with potential options to renew per Chapter 287, Florida Statutes. Timeline Issue Solicitation within MyFloridaMarketPlace Sourcing Tool (Provide Notice within Vendor Bid System). January 27, 2010 Requests for Approved Equivalents Due via Mail (No later than 2:00 pm ET). Note: See Section 3.8, Manufacturer / Brand Names and Approved Equivalents February 03, 2010 Questions from Vendors Due via Q&A Board within MyFloridaMarketPlace Sourcing Tool No later than 2:00 prn ET). February 03, 2010 Post Responses to Vendor Requests for Approved Equivalents and Questions within MyFloridaMarketPlace Sourcing Tool and Vendor Bid System. February 10, 2010 Solicitation Responses Due within MyFloridaMarketPlace Sourcing Tool (Some Required Documents via Mail ) (No later than 2:00 pm ET). February 18, 2010 Post Notice of Intended Award within Vendor Bid System (Per Section 2.13, Electronic Posting of Notice of Intended Award). March 23, 2010 Contract Award. Per Section 2.17, Contract DO NOT RELY ON THE MYFLORIDAMARKETPLACE SOURCING TOOL'S TIME REMAINING CLOCK. THE OFFICIAL SOLICITATION CLOSING TIME SHALL BE AS REFLECTED IN SECTION 1.2, TIMELINE. The response deadline(s) shall be as reflected in Section 1.2, Timeline, of this solicitation. The MyFloridaMarketPlace Sourcing Tool's time remaining clock is not the official submission date and time deadline, it is intended only to approximate the solicitation closing and may require periodic adjustments. It is strongly recommended to submit your Response as early as possible. You should allow time to receive any requested assistance and to receive verification of your submittal; waiting until the last hours of the solicitation could impact the timely submittal of your Response. [The remainder of this page is intentionally left blank (other than footer information).] 0 SECTION 2.0 GENERAL INSTRUCTIONS TO RESPONDENTS rPUR10010 0/06)] CONTENTS: 2.1 DEFINITIONS. 2.2 GENERAL INSTRUCTIONS. 2.3 ELECTRONIC SUBMISSION OF RESPONSES. 2.4 TERMS AND CONDITIONS. 2.6 QUESTIONS. 2.6 CONFLICT OF INTEREST. 2.7 CONVICTED VENDORS. 2.8 DISCRIMINATORY VENDORS. 2.9 RESPONDENT'S REPRESENTATION AND AUTHORIZATION. 2.10 MANUFACTURER'S NAME AND APPROVED EQUIVALENTS. 2.11 PERFORMANCE QUALIFICATIONS. 2.12 PUBLIC OPENING. 2.13 ELECTRONIC POSTING OF NOTICE OF INTENDED AWARD. 2.14 FIRM RESPONSE. 2.16 CLARIFICATIONS/REVISIONS. 2.16 MINOR IRREGULARITIES /RIGHT TO REJECT. 2.17 CONTRACT FORMATION. 2.18 CONTRACT OVERLAP. 2.19 PUBLIC RECORDS. 2.20 PROTESTS. 2.21 LIMITATION ON VENDOR CONTACT WITH AGENCY DURING SOLICITATION PERIOD. [The remainder of this page is intentionally left blank (other than footer information).] 7 2.1 Definitions. The definitions found in s. 60A- 1.001, F.A.C. shall apply to this agreement. The following additional terms are also defined: (a) "Buyer" means the entity that has released the solicitation. The "Buyer" may also be the "Customer" as defined in the PUR 1000 if that entity meets the definition of both terms. (b) "Procurement Officer" means the Buyer's contracting personnel, as identified in the Introductory Materials. (c) "Respondent" means the entity that submits materials to the Buyer in accordance with these Instructions. (d) "Response" means the material submitted by the respondent in answering the solicitation. (e) "Timeline" means the list of critical dates and actions included in the Introductory Materials. 2.2 General Instructions. Potential respondents to the solicitation are encouraged to carefully review all the materials contained herein and prepare responses accordingly. 2.3 Electronic Submission of Responses. Respondents are required to submit responses electronically. For this purpose, all references herein to signatures, signing requirements, or other required acknowledgments hereby include electronic signature by means of clicking the "Submit Response" button (or other similar symbol or process) attached to or logically associated with the response created by the respondent within MyFloridaMarketPlace. The respondent agrees that the action of electronically submitting its response constitutes: an electronic signature on the response, generally, an electronic signature on any form or section specifically calling for a signature, and an affirmative agreement to any statement contained in the solicitation that requires a definite confirmation or acknowledgement. 2.4 Terms and Conditions. All responses are subject to the terms of the following sections of this solicitation, which, in case of conflict, shall have the order of precedence listed: • Technical Specifications, • Special Conditions and Instructions, • Instructions to Respondents (PUR 1001), • General Conditions (PUR 1000), and • Introductory Materials. The Buyer objects to and shall not consider any additional terms or conditions submitted by a respondent, including any appearing in documents attached as part of a respondent's response. In submitting its response, a respondent agrees that any additional terms or conditions, whether submitted intentionally or inadvertently, shall have no force or effect. Failure to comply with terms and conditions, including those specifying information that must be submitted with a response, shall be grounds for rejecting a response. 2.5 Questions. Respondents shall address all questions regarding this solicitation to the Procurement Officer. Questions must be submitted via the Q &A Board within MyFloridaMarketPlace and must be RECEIVED NO LATER THAN the time and date reflected on the Timeline. Questions shall be answered in accordance with the Timeline. All questions submitted shall be published and answered in a manner that all respondents will be able to view. Respondents shall not contact any other employee of the Buyer or the State for information with respect to this solicitation. Each respondent is responsible for monitoring the MyFloridaMarketPlace site for new or changing information. The Buyer shall not be bound by any verbal information or by any written information that is not contained within the solicitation documents or formally noticed and issued by the Buyer's contracting personnel. Questions to the Procurement Officer or to any Buyer personnel shall not constitute formal protest of the specifications or of the solicitation, a process addressed in paragraph 19 of these Instructions. 2.6 Conflict of Interest. This solicitation is subject to chapter 112 of the Florida Statutes. Respondents shall disclose with their response the name of any officer, director, employee or other agent who is also an employee of the State. Respondents shall also disclose the name of any State employee who owns, directly or indirectly, an interest of five percent (5 %) or more in the respondent or its affiliates. 9 2.7 Convicted Vendors. A person or affiliate placed on the convicted vendor list following a conviction for a public entity crime is prohibited from doing any of the following for a period of 36 months from the date of being placed on the convicted vendor list: • submitting a bid on a contract to provide any goods or services to a public entity; • submitting a bid on a contract with a public entity for the construction or repair of a public building or public work; • submitting bids on leases of real property to a public entity; • being awarded or performing work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and • transacting business with any public entity in excess of the Category Two threshold amount ($25,000) provided in section 287.017 of the Florida Statutes. 2.8 Discriminatory Vendors. An entity or affiliate placed on the discriminatory vendor list pursuant to section 287.134 of the Florida Statutes may not: a submit a bid on a contract to provide any goods or services to a public entity; • submit a bid on a contract with a public entity for the construction or repair of a public building or public work; • submit bids on leases of real property to a public entity; a be awarded or perform work as a contractor, supplier, sub - contractor, or consultant under a contract with any public entity; or • transact business with any public entity. 2.9 Respondent's Representation and Authorization. In submitting a response, each respondent understands, represents, and acknowledges the following (if the respondent cannot so certify to any of following, the respondent shall submit with its response a written explanation of why it cannot do so). • The respondent is not currently under suspension or debarment by the State or any other governmental authority. To the best of the knowledge of the person signing the response, the respondent, its affiliates, subsidiaries, directors, officers, and employees are not currently under investigation by any governmental authority and have not in the last ten (10) years been convicted or found liable for any act prohibited by law in any jurisdiction, involving conspiracy or collusion with respect to bidding on any public contract. • Respondent currently has no delinquent obligations to the State, including a claim by the State for liquidated damages under any other contract. • The submission is made in good faith and not pursuant to any agreement or discussion with, or inducement from, any firm or person to submit a complementary or other noncompetitive response. • The prices and amounts have been arrived at independently and without consultation, communication, or agreement with any other respondent or potential respondent; neither the prices nor amounts, actual or approximate, have been disclosed to any respondent or potential respondent, and they will not be disclosed before the solicitation opening. • The respondent has fully informed the Buyer in writing of all convictions of the firm, its affiliates (as defined in section 287.133(1)(a) of the Florida Statutes), and all directors, officers, and employees of the firm and its affiliates for violation of state or federal antitrust laws with respect to a public contract for violation of any state or federal law involving fraud, bribery, collusion, conspiracy or material misrepresentation with respect to a public contract. This includes disclosure of the names of current employees who were convicted of contract crimes while in the employ of another company. • Neither the respondent nor any person associated with it in the capacity of owner, partner, director, officer, principal, investigator, project director, manager, auditor, or position involving the administration of federal funds: o Has within the preceding three years been convicted of or had a civil judgment rendered against them or is presently indicted for or otherwise criminally or civilly charged for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a federal, state, or local government transaction or public contract; violation of federal or state antitrust statutes; or 9 commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; or o Has within a three -year period preceding this certification had one or more federal, state, or local government contracts terminated for cause or default. • The product offered by the respondent will conform to the specifications without exception. • The respondent has read and understands the Contract terms and conditions, and the submission is made in conformance with those terms and conditions. • If an award is made to the respondent, the respondent agrees that it intends to be legally bound to the Contract that is formed with the State. • The respondent has made a diligent inquiry of its employees and agents responsible for preparing, approving, or submitting the response, and has been advised by each of them that he or she has not participated in any communication, consultation, discussion, agreement, collusion, act or other conduct inconsistent with any of the statements and representations made in the response. • The respondent shall indemnify, defend, and hold harmless the Buyer and its employees against any cost, damage, or expense which may be incurred or be caused by any error in the respondent's preparation of its bid. • All information provided by, and representations made by, the respondent are material and important and will be relied upon by the Buyer in awarding the Contract. Any misstatement shall be treated as fraudulent concealment from the Buyer of the true facts relating to submission of the bid. A misrepresentation shall be punishable under law, including, but not limited to, Chapter 817 of the Florida Statutes. 2.10 Manufacturer's Name and Approved Equivalents. Unless otherwise specified, any manufacturers' names, trade names, brand names, information or catalog numbers listed in a specification are descriptive, not restrictive. With the Buyer's prior approval, the Contractor may provide any product that meets or exceeds the applicable specifications. The Contractor shall demonstrate comparability, including appropriate catalog materials, literature, specifications, test data, etc. The Buyer shall determine in its sole discretion whether a product is acceptable as an equivalent. 2.11 Performance Qualifications. The Buyer reserves the right to investigate or inspect at any time whether the product, qualifications, or facilities offered by Respondent meet the Contract requirements. Respondent shall at all times during the Contract term remain responsive and responsible. In determining Respondent's responsibility as a vendor, the agency shall consider all information or evidence which is gathered or comes to the attention of the agency which demonstrates the Respondent's capability to fully satisfy the requirements of the solicitation and the contract. Respondent must be prepared, if requested by the Buyer, to present evidence of experience, ability, and financial standing, as well as a statement as to plant, machinery, and capacity of the respondent for the production, distribution, and servicing of the product bid. If the Buyer determines that the conditions of the solicitation documents are not complied with, or that the product proposed to be furnished does not meet the specified requirements, or that the qualifications, financial standing, or facilities are not satisfactory, or that performance is untimely, the Buyer may reject the response or terminate the Contract. Respondent may be disqualified from receiving awards if respondent, or anyone in respondent's employment, has previously failed to perform satisfactorily in connection with public bidding or contracts. This paragraph shall not mean or imply that it is obligatory upon the Buyer to make an investigation either before or after award of the Contract, but should the Buyer elect to do so, respondent is not relieved from fulfilling all Contract requirements. 2.12 Public Opening. Responses shall be opened on the date and at the location indicated on the Timeline. Respondents may, but are not required to, attend. The Buyer may choose not to announce prices or release other materials pursuant to s. 119.071(1)(b), Florida Statutes. Any person requiring a special accommodation because of a disability should contact the Procurement Officer at least five (5) workdays prior to the solicitation opening. If you are hearing or speech impaired, please contact the Buyer by using the Florida Relay Service at (800) 955 -8771 (TDD). 10 2.13 Electronic Posting of Notice of Intended Award. Based on the evaluation, on the date indicated on the Timeline the Buyer shall electronically post a notice of intended award at http: / /fcn.state.fl.us /owa vbs /owa /vbs www.main menu. If the notice of award is delayed, in lieu of posting the notice of intended award the Buyer shall post a notice of the delay and a revised date for posting the notice of intended award. Any person who is adversely affected by the decision shall file with the Buyer a notice of protest within 72 hours after the electronic posting. The Buyer shall not provide tabulations or notices of award by telephone. 2.14 Firm Response. The Buyer may make an award within sixty (60) days after the date of the opening, during which period responses shall remain firm and shall not be withdrawn. If award is not made within sixty (60) days, the response shall remain firm until either the Buyer awards the Contract or the Buyer receives from the respondent written notice that the response is withdrawn. Any response that expresses a shorter duration may, in the Buyer's sole discretion, be accepted or rejected. 2.15 Clarifications /Revisions. Before award, the Buyer reserves the right to seek clarifications or request any information deemed necessary for proper evaluation of submissions from all respondents deemed eligible for Contract award. Failure to provide requested information may result in rejection of the response. 2.16 Minor Irregularities /Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will sere the State's best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents. 2.17 Contract Formation. The Buyer shall issue a notice of award, if any, to successful respondent(s), however, no contract shall be formed between respondent and the Buyer until the Buyer signs the Contract. The Buyer shall not be liable for any costs incurred by a respondent in preparing or producing its response or for any work performed before the Contract is effective. 2.18 Contract Overlap. Respondents shall identify any products covered by this solicitation that they are currently authorized to furnish under any state term contract. By entering into the Contract, a Contractor authorizes the Buyer to eliminate duplication between agreements in the manner the Buyer deems to be in its best interest. 2.19 Public Records. Article 1, section 24, Florida Constitution, guarantees every person access to all public records, and Section 119.011, Florida Statutes, provides a broad definition of public record. As such, all responses to a competitive solicitation are public records unless exempt by law. Any respondent claiming that its response contains information that is exempt from the public records law shall clearly segregate and mark that information and provide the specific statutory citation for such exemption. 2.20 Protests. Any protest concerning this solicitation shall be made in accordance with sections 120.57(3) and 287.042(2) of the Florida Statutes and chapter 28 -110 of the Florida Administrative Code. Questions to the Procurement Officer shall not constitute formal notice of a protest. It is the Buyer's intent to ensure that specifications are written to obtain the best value for the State and that specifications are written to ensure competitiveness, fairness, necessity and reasonableness in the solicitation process. Section 120.57(3)(b), F.S. and Section 28- 110.003, Fla. Admin. Code require that a notice of protest of the solicitation documents shall be made within seventy -two hours after the posting of the solicitation. Section 120.57(3)(a), F.S. requires the following statement to be included in the solicitation: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." Section 28- 110.005, Fla. Admin. Code requires the following statement to be included in the solicitation: "Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the 11 bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." 2.21 Limitation on Vendor Contact with Agency During Solicitation Period. Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72 -hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents. Violation of this provision may be grounds for rejecting a response. [The remainder of this page is intentionally left blank (other than footer information).] 12 SECTION 3.0 SPECIAL INSTRUCTIONS TO RESPONDENTS CONTENTS: 3.1 CONTACT PERSON 3.2 TERMS AND CONDITIONS 3.3 DEFINITIONS 3.4 WHO MAY RESPOND 3.6 MYFLORIDAMARKETPLACE SOLICITATION OVERVIEW 3.6 AMENDMENTS OR ADDENDUMS TO THE SOLICITATION DOCUMENTS 3.7 ESTIMATED QUANTITIES 3.8 MANUFACTURER / BRAND NAMES AND APPROVED EQUIVALENTS 3.9 SUBMITTAL OF RESPONSE 3.10 EVALUATION CRITERIA 3.11 BASIS FOR AWARD 3.12 STATE OBJECTIVES 3.13 LOBBYING [The remainder of this page is intentionally left blank (other than footer information).] 13 3.1 Contact Person Refer ALL Inquiries to: Christopher Walker, FCCM Purchasing Analyst Division of State Purchasing Department of Management Services 4050 Esplanade Way, Suite 360 Tallahassee, FL 32399 -0950 (850)488 -7540 (voice) (850)414 -6122 (facsimile) christopher.walker cDdms.myflorida.com Please Note: All solicitation related Questions must be submitted through the MyFloridaMarketPlace Sourcing Tool Q &A Board per Section 2.5; MyFloridaMarketPlace system Questions may be answered in the MyFloridaMarketPlace Solicitation Overview, Section 3.5. Any additional technical Questions related to the MyFloridaMarketPlace system can be directed to the MyFloridaMarketPlace Customer Service Desk at 866- FLA -EPRO (866- 352 -3776) or vendorhelp (a-myfloridamarketplace.com. 3.2 Terms and Conditions Potential Respondents to the solicitation are encouraged to carefully review all the materials contained herein and prepare Responses accordingly. All Responses are subject to the requirements, specifications, terms, and conditions of the following sections of this solicitation, which, in case of conflict, shall have the order of precedence listed: • Section 1.0, Introduction • Section 6.0, Technical Specifications • Section 5.0, Special Conditions • Section 3.0, Special Instructions to Respondents • Section 4.0, General Contract Conditions [PUR 1000 (10/06)] • Section 2.0, General Instructions to Respondents [PUR 1001 (10/06)] • Section 7.0, Price Sheet & Ordering Instructions and Forms The Department objects to and shall not consider any additional terms or conditions submitted by a Respondent, including any appearing in documents attached as part of a Respondent's Response. In submitting its Response, the Respondent agrees that any additional terms or conditions, whether submitted intentionally or inadvertently, shall have no force or effect. Failure to comply with the solicitation requirements, specifications, terms, and conditions, including those specifying information that must be submitted with a Response, shall be grounds for rejecting a Response. This Section, 3.2, supersedes and replaces Section 2.4, Terms and Conditions. 3.3 Definitions The Definitions found and referenced in the General Instructions to Respondents [PUR1001 (10/06)], Section 2.1, and General Contract Conditions [PUR1000 (10/06)], Section 4.1, shall apply to this Section. The following additional terms are also defined: (a) "State" means the State of Florida. (b) "Department" means the Florida Department of Management Services. 14 (c) "Procurement Officer', "Contract Manager ", or "Contract Administrator' means the Buyer's contracting personnel, as identified in Section 3.1 or as amended by the Department. (d) "Eligible User(s)" is defined in 60A- 1.005, F.A.C. The following entities are eligible users: 1. All governmental agencies, as defined in Section 163.3164, F.S., which have a physical presence within the State of Florida; 2. Any independent, non - profit college or university that is located within the State of Florida and is accredited by the Southern Association of Colleges and Schools. Section 287.056 of the Florida Statutes governs agencies' use of the Contract. Others may seek Department approval under section 287.042(2)(a) as an eligible user of the Contract. (e) "Vendor(s)" means the entity that believes itself capable and is in the business of providing a Commodity and / or service similar to those within the solicitation, and may or may not respond to the solicitation. (f) "Contractor(s)" means the Respondent that has been awarded and contracts to sell Commodities and / or contractual services, which meet the requirements, specifications, terms, and conditions herein, to an Eligible User. (g) "OEM(s)" or "Manufacturer(s)" means the Original Equipment Manufacturer or original producer or provider of a Commodity and / or service. (h) "Dealer(s)" means a Manufacturer's certified representative authorized by the Manufacturer to market, sell, provide, and / or service specific Commodities and / or services of the Manufacturer in the State of Florida. (i) "Commodity(ies)" means a tangible good, which may or may not meet the specifications herein. (j) "Commodity Code(s)" means the State of Florida specified numeric code for classifying Commodities and contractual services which meet specific requirements, specifications, terms, and conditions herein. (k) "Approved Equivalent" means a Manufacturer / Brand Name, Commodity, or contractual service that meets or exceeds the requirements, specifications, terms, and conditions of the solicitation, and is approved by the Department as an equivalent to a Manufacturer / Brand Name, Commodity, or contractual service listed in the solicitation documents. (1) "Base Equipment ", "Base Vehicle(s) ", "Equipment ", "Machine(s) ", "Unit(s) ", or "Vehicle(s)" unless stated otherwise, means a Department specified Commodity, which meets the requirements, specifications, terms, and conditions herein, and may include components, features, and configurations different than those provided by the Manufacturer and Dealer on the standard version of the Commodity. (m) "OEM Option(s) ", "OEM Accessory(ies) ", "OEM Implement(s) ", "Option(s) ", "Accessory(ies) ", and "Implement(s)" means an original Manufacturer's Base Equipment related optional component, feature, or configuration, which meets the requirements, specifications, terms, and conditions herein, and may be installed to, uninstalled from, or provided with or separately from the Base Equipment by the Manufacturer or Dealer, as is specified, ordered, legal, customary, reasonable, and prudent in the industry. (n) "MSRP(s)" is an acronym for the Manufacturer's Suggested Retail Price. It represents the Manufacturer's pre- determined and recommended retail selling price, list price, published price, or other usual and customary price that would be paid by the purchaser for specific 15 Commodities and contractual services without benefit of a Contract resulting from the solicitation, if awarded. "MSRP List(s)" is an acronym for the Manufacturer's Suggested Retail Price List, a collection of MSRPs and related information. In the priority listed below, only the following are acceptable sources of current MSRPs and MSRP Lists for use under the solicitation and resulting Contract, if awarded: 1. Manufacturer's Annual U.S. Price Book, and 2. Manufacturer's official website. MSRPs and MSRP Lists must be formally published, publicly listed and available, and verifiable by the Department. MSRPs and MSRP Lists may not be custom or solely developed, created, maintained, altered, revised, changed, modified, or utilized for purposes of the solicitation and resulting Contract, if awarded. 3.4 Who May Respond The Department will accept Responses from capable Construction, Industrial, Agricultural, & Lawn Equipment Manufacturers and Dealers, who are in good standing with the State of Florida, satisfying the requirements, specifications, terms, and conditions of the solicitation documents. To be eligible for award, a Respondent shall have the demonstrated capability to perform a statewide Contract in the State of Florida. By submitting a Response, each Respondent certifies that it understands, agrees to, and satisfies all criteria specified in the solicitation documents. The Department may request, and the Respondent shall provide, supporting information and documentation. Failure to supply supporting information and documentation as required or requested will result in disqualification of the Response. 3.5 MyFloridaMarketPlace Solicitation Overview The Department uses the MyFloridaMarketPlace System ( "MFMP ") to receive Responses to solicitations electronically. 3.5.1 MyFloridaMarketPlace Vendor Registration Application Vendors must have a revised, current, and complete Vendor Registration Application identified on the MyFloridaMarketPlace Vendor Registration System at: https: // vendor .mvfloridamarketplace.com /. If you have not registered or have requested a registration update, please be advised that a minimum of forty -eight (48) hours will be required for access to the MyFloridaMarketPlace Sourcing Tool. Completion of this registration is mandatory for those Vendors who wish to submit a Response. 3.5.2 MyFloridaMarketPlace Sourcing Tool Training This solicitation will be conducted using the MyFloridaMarketPlace Sourcing Tool at: https: // sourcing .mvfloridamarketi)lace.com /. Optional training on how to respond to this solicitation electronically is offered at: http: // marketplace .mvflorida.com /vendor /vendor solicitation help.htm. Download and review the document titled "ITB Event User Guide." For all technical questions about the Sourcing Tool, Vendors should contact the MyFloridaMarketPlace Customer Service Desk at 866- FLA -EPRO (866- 352 -3776) or: vendorhelpemvfloridamarketplace .com. For additional information or assistance on using the Sourcing Tool, please visit the MyFloridaMarketPlace website at the following link: http: / /marketr)lace.myflorida.com /vendor /vendor solicitation help.htm. 16 This site includes: a. Solicitation User Guides b. On Demand web -based Sourcing training link c. WinZip FAQs d. Vendor FAQs 3.5.3 MyFloridaMarketPlace Sourcing Tool Tips When working in the MyFloridaMarketPlace Sourcing Tool, be aware of the twenty (20) minute time -out function in the tool. This means that you should save your work (click the SAVE button) at intervals of less than twenty (20) minutes to ensure your entries since you last saved are not lost. Please note that clicking the SAVE button within the MyFloridaMarketPlace Sourcing Tool only saves your solicitation Responses. The SAVE button does not transmit your solicitation Response to the State. In order to transmit your solicitation Response to the State, you must click the SUBMIT button on the SUMMARY page of the solicitation Response. After clicking the SUBMIT button, it is the Respondent's responsibility to check any submitted Response within the MyFloridaMarketPlace Sourcing Tool to verify that the Response is accurately and completely captured within the MyFloridaMarketPlace Sourcing Tool. Respondents must do this while there is sufficient time remaining in the solicitation period in the event you discover an error and need to resubmit a revised Response. To validate your Response, you should do the following before the solicitation period ends: • Go to the "My Bids / My Responses" tab within the MyFloridaMarketPlace Sourcing Tool after you submitted your Response. • Click on the Response ID number of your last submitted Response. • Review entire Response to make sure all responses are complete, accurate, and as you intended to submit. • Minimum areas to check are: • Text boxes — Is your entire answer viewable? • Yes /No questions — Is the displayed answer correct? • All uploaded document files — Can you open attached document(s) and clearly view entire content? Does the content of the file(s) match your intended Response within the MyFloridaMarketPlace Sourcing Tool (e.g., not an earlier version, incomplete copy, or working copy)? • Pricing and Other Information — Are all Prices and other information you intended to submit visible and accurately captured within MyFloridaMarketPlace Sourcing Tool? • Required Items - Are all items listed in the solicitation completed as required within the MyFloridaMarketPlace Sourcing Tool? DO NOT RELY ON THE MYFLORIDAMARKETPLACE SOURCING TOOL'S TIME REMAINING CLOCK. THE OFFICIAL SOLICITATION CLOSING TIME SHALL BE AS REFLECTED IN SECTION 1.2, TIMELINE. The response deadline(s) shall be as reflected in Section 1.2, Timeline, of this solicitation. The MyFloridaMarketPlace Sourcing Tool's time remaining clock is not the official submission date and time deadline, it is intended only to approximate the solicitation closing and may require periodic adjustments. It is strongly recommended to submit your Response as early as possible. You should allow time to receive any requested assistance and to receive verification of your submittal; waiting until the last hours of the solicitation could impact the timely submittal of your Response. 17 3.5.4 MyFloridaMarketPlace and Vendor Bid System Email Notification Vendors are reminded that the sourcing tools' Email Notifications are an option provided as a courtesy. The State of Florida is not under any obligation and does not guarantee that Vendors will receive Email Notifications concerning the posting, Addendum, Amendment, or close of solicitations. Vendors are responsible for checking the MyFloridaMarketPlace Sourcing Tool and the Vendor Bid System for information and updates concerning solicitations. 3.6 Amendments or Addendums to the Solicitation Documents The Department reserves the right to issue Amendments or Addendums to the solicitation. Notice of any Amendment or Addendum will be posted within the MyFloridaMarketPlace Sourcing Tool and / or the Vendor Bid System. Such notice, if required, will contain the appropriate details for identifying and reviewing the formal notices and / or changes to the solicitation. Each Vendor is responsible for monitoring the MyFloridaMarketPlace Sourcing Tool and the Vendor Bid System sites for new or changing information concerning the solicitation. 3.7 Estimated Quantities To assist Respondents in the solicitation process, average estimated annual historical spend information is provided. Spend information is based on historic data. This figure shall not be construed as a commitment. • Estimated Annual Spend: $30 Million ($30M USD) The above figure reflects estimated annual spend generated by Eligible Users of past contracts for similar Commodities and or contractual services and is not a commitment. Additional estimations of usage, quantity, volume, weight, spend, and / or other estimates may be provided by the Department in the solicitation documents. The figures provided are to assist Respondents in the solicitation process and / or to assist the Department in evaluating, measuring, and / or scoring Responses to the solicitation and shall not be construed as commitments. 3.8 Manufacturer/ Brand Names and Approved Equivalents Unless otherwise specified, any Manufacturer/ Brand Names, Commodities, or contractual services listed in the solicitation documents are descriptive, not restrictive. However, Vendors must request and receive a determination by the Department of an Approved Equivalency for any Manufacturer / Brand Name, Commodity, or contractual service not specifically listed. The term, Approved Equivalent, indicates a Manufacturer / Brand Name, Commodity, or contractual service that meets or exceeds the requirements, specifications, terms, and conditions of the solicitation, and is approved by the Department as an equivalent to a Manufacturer / Brand Name, Commodity, or contractual service listed in the solicitation documents. To request an Approved Equivalent determination by the Department, the Vendor will submit in writing (via U.S. Mail or courier service) to the Contact Person, Section 3.1, a request for approval as an Approved Equivalent by the Requests for Approved Equivalents Due Date and Time from the Timeline, Section 1.2. The Request for Approved Equivalent must contain the following: 1. the requested Manufacturer / Brand Name; 2. the applicable Commodity Group(s); 3. a brief description of how the Vendor believes the requested Manufacturer / Brand Name's Commodities and / or contractual services meet or exceed listed Manufacturer / Brand Name's Commodities and / or contractual services and the solicitation's requirements, specifications, terms, and conditions; 18 4. supporting documentation, which demonstrates the comparability of the requested Manufacturer / Brand Name's Commodities and / or contractual services to the other listed Manufacturer / Brand Name's Commodities and / or contractual services, including: a. applicable Manufacturer's literature, documentation, specifications, test data, etc.; and b. any additional documentation demonstrating to the Department the comparability of the requested Manufacturer / Brand Name's Commodities and / or contractual services. c. Note: i. All supporting documentation shall be individually labeled with the applicable Commodity Group or Section Number. ii. The Department, at its sole discretion, reserves the right to consider Manufacturer's literature or information that is in the possession of the Department or readily accessible by the Department, if the literature or information supersedes the Manufacturer's literature or information submitted by the Vendor. 5. acceptable documentation that the requesting Vendor is an authorized Construction, Industrial, Agricultural, & Lawn Equipment Manufacturer or Dealer and capable of providing Commodities or contractual services to meet or exceed the complete requirements, specifications, terms, and conditions, and not just supply aftermarket options or third -party services; 6. the outer packaging of the request shall clearly state: Solicitation Number; Title, Request for Approved Equivalents (ITB No. 03- 760- 000 -S; Construction, Industrial, Agricultural, & Lawn Equipment: Request for Approved Equivalents), and the Requests for Approved Equivalents Due Date and Time from the Timeline in Section 1.2 of the solicitation; and 7. multiple requests may be contained in one package, but each request must be documented and labeled independently and clearly. Failure to provide all required information with the Request for Approved Equivalent by the date and times ecified on the Timeline will result in re'ection of the request. As time is of the essence, should the Department receive Requests for Approved Equivalents that are either significant in number or in complexity, the Department in its sole discretion may prioritize the requests for evaluation purposes. The Department will make every reasonable effort to review Requests for Approved Equivalents in the time available, but not all requests may be evaluated. Requests for Approved Equivalents that are not evaluated by the Department will not be approved. The Department shall determine in its sole discretion whether a request for an Approved Equivalent is compliant and complete, and whether the Manufacturer / Brand Name, Commodity, or contractual service requested is acceptable as an Approved Equivalent. Any determinations by the Department will be provided in the Post Responses to Vendor Requests for Approved Equivalents and Questions reply, as provided in the Timeline, Section 1.2. Approved Equivalent determinations will not be given by any other method. If the Department approves a requested Manufacturer / Brand Name, Commodity, or contractual service as an Approved Equivalent, the Department will amend the solicitation documents to list the approved Manufacturer / Brand Name, Commodity, or contractual service in the location(s) where the Department determines is the best fit. The Respondent may offer only Manufacturer / Brand Names, Commodities, or contractual services that meet or exceed the solicitation's requirements, specifications, terms, and conditions, and which are listed as Manufacturer / Brand Names, Commodities, or contractual services. Should a Respondent submit a Response containing a Manufacturer / Brand Name, Commodity, or contractual service that does not meet or exceed the solicitation's requirements, specifications, terms, and conditions, or is not listed as a Manufacturer / Brand Name, Commodity, or contractual service in the applicable solicitation documents, the offer for the individual non - compliant or non - listed Manufacturer / Brand Name, Commodity, or contractual service will be disqualified as non- responsive. This Section, 3.8, supersedes and replaces Section 2.10, Manufacturer's Name and Approved Equivalents. 19 3.9 Submittal of Response 3.9.1 Submittal of Offer Respondents will submit their offers via the MyFloridaMarketPlace Sourcing Tool (https: // sourcing .mvfloridamarketolace.com /). The Response shall include all appropriate pricing, discounts, documents, forms, files, question responses, and information responses located within the MyFloridaMarketPlace Sourcing Tool for the solicitation. All required or requested pricing, discounts, documents, forms, files, question responses, and information responses will be entered electronically in the MyFloridaMarketPlace Sourcing Tool during this solicitation as indicated. If no indication for submission is provided for required or requested documents or files, or if instructions to mail a specific document, form, or file are provided, then those specific documents, forms, or files only shall be mailed to the attention of the Contact Person in Section 3.1 of the solicitation. The outer packaging of mailed documents shall clearly state: Solicitation Title, Number (ITB No. 03- 760 - 000 -S; Construction, Industrial, Agricultural, & Lawn Equipment), and the Solicitation Responses Due Date and Time from the Timeline in Section 1.2 of the solicitation. Failure to provide all required information within the solicitation Response shall result in resection of the Response. In the event the Respondent submits more than one Response in the MyFloridaMarketPlace Sourcing Tool, only the last Response received by the system shall be considered for award. Previous Responses will not be visible to the State of Florida. Responses (other than document, file, or form submissions indicated by the solicitation to be mailed) not submitted within the MyFloridaMarketPlace Sourcing Tool shall be rejected. The system will require Respondents to review the Solicitation Preparation Checklist (Section 7.2) and confirm that they have completed all required activities before receiving the offer. The Solicitation Preparation Checklist does not relieve the Respondent of responsibility for ensuring that all requirements of the solicitation are included with the solicitation Response. The Solicitation Preparation Checklist does not have to be provided with the Response. Each Respondent is responsible for ensuring that their offer is accurately and completely submitted before the Solicitation Responses Due Date and Time noted on the Timeline in Section 1.2 of the solicitation. The Department shall not consider late offers and the System will NOT accept offers after the Solicitation Responses Due Date and Time specified in the Timeline. The Response must be accurate, complete, and submitted in the MvFloridaMarketplace Sourcing Tool, or as otherwise provided in the solicitation documents, by the date and time specified on the Timeline or the Response shall be deemed non - responsive. 3.9.2 Price Sheet & Ordering Instructions Responses Price Sheet & Ordering Instructions Responses will be submitted in the locations and formats provided in the Price Sheet & Ordering Instructions, Section 7.1, as described and / or referenced within this Section, 3.9.2. The Price Sheet & Ordering Instructions, Section 7.1, is contained within a separate Microsoft ExcelTM workbook. There are two (2) individual spreadsheet tabs within the Price Sheet & Ordering Instructions: one (1) Price Sheet tab (per this Section 3.9.2) and one (1) Ordering Instructions Form tab (per Sections 3.9.8, Ordering Instructions, and 5.5, Ordering Instructions Information). The Price Sheet tab contains twenty -four (24) Commodity Groups, each with individual lines (rows) for each related Manufacturer / Brand Name (listed in alphabetical order) and its associated fields: Line No.; Manufacturer / Brand Name; Organization Name; Base Equipment MSRP Discount [##.## %]; OEM Options, Accessories, & Implements MSRP Discount [##.## %]; OEM Parts MSRP Discount [##.## %]; and MSRP List [Include: MSRP List Name, MSRP List Date, and MSRP List 20 Pages / Sections]. Information regarding the Ordering Instructions and their submission can be found in Sections 3.9.8, Ordering Instructions, and 5.5, Ordering Instructions Information. Respondents are encouraged to respond for as many of the provided Commodity Groups and Manufacturer / Brand Names (with their associated fields) as they may choose to offer, but for each Commodity Group and Manufacturer / Brand Name offered, all related information must be supplied and submitted in the appropriate fields, provided locations, and formats required on the Price Sheet & Ordering Instructions, Section 7.1. Unless specifically noted as optional, the Respondent must complete the following fields for each Commodity Group and Manufacturer / Brand Name offered in the Section 7.1, Price Sheet & Ordering Instructions, Price Sheet tab: • Organization Name; • Base Equipment MSRP Discount • OEM Options, Accessories, & Implements MSRP Discount [##.## %] (Except Group No. 15); • OEM Parts MSRP Discount [##.## %] (Optional); and • MSRP List [Include MSRP List Name, MSRP List Date, and MSRP List Pages / Sections]. Note: See Section 3.9.5, Supporting Documents, MSRP List for additional information. The light- yellow colored spaces (cells) on the Price Sheet & Ordering Instructions, Section 7.1, are the places where the Respondent may offer specific Base Equipment MSRP Discounts; OEM Options, Accessories, & Implements MSRP Discounts; and OEM Parts Discounts and is required to supply accurate, compliant, and complete information per the requirements, specifications, terms, and conditions herein. These light- yellow colored spaces (cells) on the Price Sheet & Ordering Instructions may contain bracketed notes providing instructions and requirements to assist the Respondent in providing the required information in the required format. Where provided, the Respondent shall follow the instructions and formats noted in any bracketed instructions for all Commodity Groups and Manufacturer / Brand Names offered. Should a Respondent not offer a specific Commodity Group or Manufacturer / Brand Name, they shall leave the associated line (row), space(s), and field(s) untouched or blank (do not delete the line (row)); it is not required to mark a line as "No Bid ". Where a Commodity Group and Manufacturer / Brand Name is offered, the Respondent must offer the associated Base Equipment MSRP Discount and OEM Options, Accessories, & Implements MSRP Discount along with supplying the applicable MSRP List information. The Respondent is not required, but is encouraged to offer the associated OEM Parts Discount. Offers for Base Eauipment Discounts without an offer for the associated OEM Options, Accessories, & Implements MSRP Discounts will be rejected as non - responsive. Offers for OEM Options, Accessories, & Implements MSRP Discounts and / or OEM Parts MSRP Discounts without an offer for the associated Base Equipment Discounts will be rejected as non - responsive. Offers not including the applicable MSRP List information will be rejected as non - responsive. All Prices will be in U.S. Dollars, whole ($USD; e.g., $999.999); all Discounts shall be a positive Percentage to the one - hundredth decimal place ( %; e.g., 99.99 %); and all Dates will be in full standard numerical format (e.g., ## /## /####). The Respondent agrees and confirms that the prices (net after discount, as applicable) offered do not exceed the MSRP for the respective Commodity. The Respondent may offer only Commodities that meet or exceed the solicitation's requirements, specifications, terms, and conditions, and for which the Commodity Group and Manufacturer / Brand Name is listed in the Price Sheet & Ordering Instructions (Section 7.1). Should a Respondent submit a Response containing a Commodity that does not meet or exceed the solicitation's requirements, specifications, terms, and conditions, and for which the Commodity Group and Manufacturer / Brand Name is not listed in the Price Sheet & Ordering Instructions, that offer will be disqualified as non - responsive. The Department in its sole discretion shall determine the acceptability of a Manufacturer / Brand Name and Commodity offered. The Price Sheet & Ordering Instructions, Section 7.1, will be submitted to the Department electronically using the MyFloridaMarketPlace Sourcing Tool, per Section 3.9.1 of the solicitation. 21 Failure to properly submit or provide a compliant Section 7.1. Price Sheet & Ordering Instructions, with the Response shall result in the Respondent being deemed non- responsive. 3.9.3 Alternate Responses Respondent may not submit more than one offer for each listed Manufacturer / Brand Name per Commodity Group. The Department seeks each Respondent's single -best Response by Manufacturer / Brand Name per Commodity Group. 3.9.4 Full- Service Repair Facilities Respondent must offer Commodities and contractual services having a minimum of one (1) Manufacturer's authorized Full- Service Repair Facility available in the State of Florida from which the Commodities offered may be installed, serviced, and repaired under Warranty and the requirements, specifications, terms, and conditions of the Contract, if awarded. Provision of a Manufacturer's authorized Full- Service Repair Facility shall be a requirement for the entire Period of Agreement, Section 5.2. Respondent shall submit with their Response an answer in the MyFloridaMarketPlace Sourcing Tool RFX Info section of the solicitation attesting to this requirement. A positive, "Yes ", answer is one requirement of a responsive Response. 3.9.5 Supporting Documents Respondent shall submit the following Supporting Documents with their Response, as noted: • MSRP List: With the Response, Respondent shall provide one (1) applicable, current, complete, and separate MSRP List (as defined under Section 3.3(n)) for each Commodity Group and Manufacturer / Brand Name offered under Section 7.1, Price Sheet & Ordering Instructions. Therefore, multiple MSRP Lists may be required (e.g., by Commodity Group and Manufacturer/ Brand Name). The MSRP List will include the Manufacturer's Item Number, Manufacturer's Item Description, and MSRP for only and each of the Manufacturer / Brand Name and Commodity Group's applicable Base Equipment; OEM Options, Accessories, & Implements; and OEM Parts offered. The MSRP List must include the applicable Commodity Group, Manufacturer/ Brand Name, MSRP List Name, and MSRP List Date on the cover or first page. The submitted MSRP List(s) shall only be submitted and accepted as follows: • MSRP List specific terms and conditions which conflict with the requirements, specifications, terms, and conditions of the solicitation and resulting Contract, if awarded, must be deleted, omitted, removed, concealed, or marked void; • In Adobe Acrobat 9 or earlier (.pdf) electronic format (encoded or scanned) with logical electronic filenames, and • On CD(s) or DVD(s) [clearly mark the exterior of each CD or DVD for its general content]. • Note: It is the Respondent's responsibility to ensure that the documents and discs are applicable, complete, and readable. Non - compliant or non - readable documents and discs will be rejected. The Supporting Documents shall be mailed to the Department per Section 3.9.1 of the solicitation. Failure to provide accurate and compliant Supporting Documents with the Response will result in the Respondent being deemed non - responsive. 22 3.9.6 Manufacturer's Certification Respondent shall submit one (1) completed Manufacturer's Certification form (Section 7.3), certifying that the Respondent is the Manufacturer or a Dealer for each Manufacturer / Brand Name they offer Commodities for as part of their Response. The Manufacturer's Certification form must be executed by the Manufacturer only and may not be completed by a Dealer or third - party. Dealer agreements will not be accepted in lieu of a Manufacturer's Certification form. The Manufacturer's Certification form shall be mailed to the Department per Section 3.9.1 of the solicitation. Failure to provide a complete and compliant Manufacturer's Certification form with the Response will result in the Respondent being deemed non - responsive. 3.9.7 Savings / Price Reductions Respondent shall submit one (1) accurately completed Savings / Price Reductions form (Section 7.4) with their Response containing the required aggregate Base Equipment MSRP Discount; OEM Options, Accessories, & Implements MSRP Discount; and OEM Parts Discount savings information for each Commodity Group and Manufacturer / Brand Name offered and a method(s) for the Department to verify the savings information provided. The Savings / Price Reductions form will not be used to determine award, only to verify the Savings / Price Reductions being offered. The Savings / Price Reductions form shall be mailed to the Department per Section 3.9.1 of the solicitation. Failure to provide the Savings / Price Reductions form with the Response may result in the Respondent being deemed non - responsive. 3.9.8 Ordering Instructions Respondent shall submit one (1) completed Ordering Instructions Form (contained within Section 7.1, Price Sheet & Ordering Instructions) with their Response identifying persons responsible for answering questions about the Response and administering the Contract, if awarded, and shall provide information necessary for placing orders and remitting payments under the Contract, if awarded. Additional Ordering Instruction requirements, terms, and conditions can be found in Section 5.5, Ordering Instructions Information. The Ordering Instructions Form will be submitted with Section 7.1, Price Sheet & Ordering Instructions, to the Department electronically using the MyFloridaMarketPlace Sourcing Tool, per Section 3.9.1 of the solicitation. Failure to provide the Orderinq Instructions Form with the Response may result in the Respondent being deemed non - responsive. 3.10 Evaluation Criteria The Department shall evaluate eligible responsive offers. Responses that do not meet all requirements of the solicitation or fail to provide all required information, documents, or materials may be rejected as non- responsive. Respondents whose Responses, past performance, or current status do not reflect the capability, integrity, or reliability to fully and in good faith perform the requirements of a Contract may be rejected as non - responsible. The Department reserves the right to determine which Responses meet the requirements, specifications, terms, and conditions of the solicitation, and which Respondents are responsive and responsible. 3.11 Basis for Award The Department shall make a single award statewide for each Manufacturer / Brand Name (Line Number) per Commodity Group to the responsive and responsible Respondent offering the highest Base Equipment MSRP Discount from the most recent and complete MSRP List (therefore providing the lowest Net Prices). Therefore, multiple Manufacturer / Brand Name awards per Commodity Code group are possible. 23 The Department reserves the right to make awards as determined to be in the best interest of the State of Florida, and to accept or reject any and all offers, or separable portions, and to waive any minor irregularity, technicality, or omission if the Department determines that doing so will serve the State of Florida's best interest. 3.12 State Objectives Within thirty (30) calendar days following award of the Contract, if awarded, the successful Respondent shall submit plans addressing each of the State's five (5) objectives listed below, to the extent applicable to the items / services covered by this solicitation. 3.12.1 Diversity The State of Florida is committed to supporting its diverse business industry and population through ensuring participation by minority -, women -, and service- disabled veteran business enterprises in the economic life of the State. The State of Florida Mentor Proteg6 Program connects minority -, women -, and service- disabled veteran business enterprises with private corporations for business development mentoring. We strongly encourage firms doing business with the State of Florida to consider this initiative. For more information on the Mentor Protegd Program, please contact the Office of Supplier Diversity at (850) 487 -0915. The State is dedicated to fostering the continued development and economic growth of small, minority -, women -, and service- disabled veteran business enterprises. Participation by a diverse group of Vendors doing business with the State is central to this effort. To this end, it is vital that small, minority -, women -, and service - disabled veteran business enterprises participate in the State's procurement process as both Contractors and Sub - Contractors in this solicitation. Small, minority -, women -, and service - disabled veteran business enterprises are strongly encouraged to contribute to this solicitation. The Contractor shall submit documentation addressing diversity and describing the efforts being made to encourage the participation of small, minority -, women -, and service - disabled veteran business enterprises. Information on Certified Minority Business Enterprises (CMBE) and Certified Service- Disabled Veteran Business Enterprises (CSDVBE) is available from the Office of Supplier Diversity at: http: / /dms.myflorida.com /other programs /office of supplier diversity osd /. Quarterly Reports of revenue paid to certified W /MBE and certified SDVBE Contractors (agents or Sub - Contractors) as a result of any award shall be provided to the Agency Purchasing Office by the Prime Contractor on an Agency by Agency (or other Eligible User) level. 3.12.2 Environmental Considerations The State supports and encourages initiatives to protect and preserve our environment. The Contractor shall submit as part of any response the Contractor's plan to support the procurement of products and materials with recycled content, and the intent of Section 287.045, Florida Statutes. The Contractor shall also provide a plan for reducing and or handling of any hazardous waste generated by Contractor's company. Reference Rule 62- 730.160, Florida Administrative Code. It is a requirement of the Florida Department of Environmental Protection that a generator of hazardous waste materials that exceeds a certain threshold must have a valid and current Hazardous Waste Generator Identification Number. This identification number shall be submitted as part of Contractor's explanation of its company's hazardous waste plan and shall explain in detail its handling and disposal of this waste. 24 3.12.3 Certification of Drug -Free Workplace Program The State supports and encourages initiatives to keep the workplaces of Florida's Suppliers and Contractors drug free. Section 287.087 of the Florida Statutes provides that, where identical tie responses are received, one preference shall be given to a response received from a Respondent that certifies it has implemented a drug -free workforce program. If applicable, Respondent shall certify that the Respondent has a drug -free workplace program using the Certification of Drug -Free Workplace form included in Section 7.6 of the solicitation. The Contractor shall describe how it will address the implementation of a drug free workplace in offering the items of the solicitation. 3.12.4 Products Available from the Blind or Other Handicapped (RESPECT) The State supports and encourages the gainful employment of citizens with disabilities. It is expressly understood and agreed that any articles that are the subject of, or required to carry out, this Contract shall be purchased from a nonprofit agency for the blind or for the severely handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and under the same procedures set forth in Section 413.036(1) and (2), Florida Statutes; and for purposes of this Contract the person, firm, or other business entity carrying out the provisions of this Contract shall be deemed to be substituted for the state agency insofar as dealings with such qualified nonprofit agency are concerned. Additional information about the designated nonprofit agency and the products it offers is available at htto: / /www.resr)ectofflorida.org. The Contractor shall describe how it will address the use of RESPECT in offering the items of the solicitation. 3.12.5 Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE) The State supports and encourages the use of Florida correctional work programs. It is expressly understood and agreed that any articles which are the subject of, or required to carry out, this Contract shall be purchased from the corporation identified under Chapter 946, F.S., in the same manner and under the same procedures set forth in Section 946.515(2), and (4), F.S.; and for purposes of this contract the person, firm, or other business entity carrying out the provisions of this Contract shall be deemed to be substituted for this agency insofar as dealings with such corporation are concerned. Additional information about PRIDE and the products it offers is available at hftp://www.pridefl.com. The Contractor shall describe how it will address the use of PRIDE in offering the items of the solicitation. 3.13 Lobbying Please reference Section 2.21, Limitation on Vendor Contact with Agency During Solicitation Period. Respondents are advised that the following will be included in the Contract for these services: In accordance with Section 216.347, Florida Statutes, and as provided herein, the Contractor may not expend any State funds for the purpose of lobbying the legislature, the judicial branch, the executive branch, or any State Agency. [The remainder of this page is intentionally left blank (other than footer information).] 99 SECTION 4.0 GENERAL CONTRACT CONDITIONS [PUR1000 (10/0611 CONTENTS: 4.1 DEFINITIONS. 4.2 PURCHASE ORDERS. 4.3 PRODUCT VERSION. 4.4 PRICE CHANGES APPLICABLE ONLY TO TERM CONTRACTS. 4.5 ADDITIONAL QUANTITIES. 4.6 PACKAGING. 4.7 INSPECTION AT CONTRACTOR'S SITE. 4.8 SAFETY STANDARDS. 4.9 AMERICANS WITH DISABILITIES ACT. 4.10 LITERATURE. 4.11 TRANSPORTATION AND DELIVERY. 4.12 INSTALLATION. 4.13 RISK OF Loss. 4.14 TRANSACTION FEE. 4.15 INVOICING AND PAYMENT. 4.16 TAXES. 4.17 GOVERNMENTAL RESTRICTIONS. 4.18 LOBBYING AND INTEGRITY. 4.19 INDEMNIFICATION. 4.20 LIMITATION OF LIABILITY. 4.21 SUSPENSION OF WORK. 4.22 TERMINATION FOR CONVENIENCE. 4.23 TERMINATION FOR CAUSE. 4.24 FORCE MAJEURE, NOTICE OF DELAY, AND NO DAMAGES FOR DELAY. 4.25 CHANGES. 4.26 RENEWAL. 4.27 PURCHASE ORDER DURATION. 4.28 ADVERTISING. 4.29 ASSIGNMENT. 4.30 ANTITRUST ASSIGNMENT. 4.31 DISPUTE RESOLUTION. 4.32 EMPLOYEES, SUBCONTRACTORS, AND AGENTS. 4.33 SECURITY AND CONFIDENTIALITY. 4.34 CONTRACTOR EMPLOYEES, SUBCONTRACTORS, AND OTHER AGENTS. 4.35 INSURANCE REQUIREMENTS. 4.36 WARRANTY OF AUTHORITY. 4.37 WARRANTY OF ABILITY TO PERFORM. 4.38 NOTICES. 4.39 LEASES AND INSTALLMENT PURCHASES. 4.40 PRISON REHABILITATIVE INDUSTRIES AND DIVERSIFIED ENTERPRISES, INC. (PRIDE). 4.41 PRODUCTS AVAILABLE FROM THE BLIND OR OTHER HANDICAPPED. 4.42 MODIFICATION OF TERMS. 4.43 COOPERATIVE PURCHASING. 4.44 WAIVER. 4.45 ANNUAL APPROPRIATIONS. 4.46 EXECUTION IN COUNTERPARTS. 4.47 SEVERABILITY. [The remainder of this page is intentionally left blank (other than footer information).] cf 4.1 Definitions. The definitions contained in s. 60A- 1.001, F.A.C. shall apply to this agreement. The following additional terms are also defined: (a) "Contract" means the legally enforceable agreement that results from a successful solicitation. The parties to the Contract will be the Customer and Contractor. (b) "Customer" means the State agency or other entity identified in a contract as the party to receive commodities or contractual services pursuant to a contract or that orders commodities or contractual services via purchase order or other contractual instrument from the Contractor under the Contract. The "Customer" may also be the "Buyer' as defined in the PUR 1001 if it meets the definition of both terms. (c) "Product" means any deliverable under the Contract, which may include commodities, services, technology or software. (d) "Purchase order" means the form or format a Customer uses to make a purchase under the Contract (e.g., a formal written purchase order, electronic purchase order, procurement card, contract or other authorized means). 4.2 Purchase Orders. In contracts where commodities or services are ordered by the Customer via purchase order, Contractor shall not deliver or furnish products until a Customer transmits a purchase order. All purchase orders shall bear the Contract or solicitation number, shall be placed by the Customer directly with the Contractor, and shall be deemed to incorporate by reference the Contract and solicitation terms and conditions. Any discrepancy between the Contract terms and the terms stated on the Contractor's order form, confirmation, or acknowledgement shall be resolved in favor of terms most favorable to the Customer. A purchase order for services within the ambit of section 287.058(1) of the Florida Statutes shall be deemed to incorporate by reference the requirements of subparagraphs (a) through (f) thereof. Customers shall designate a contract manager and a contract administrator as required by subsections 287.057(15) and (16) of the Florida Statutes. 4.3 Product Version. Purchase orders shall be deemed to reference a manufacturer's most recently release model or version of the product at the time of the order, unless the Customer specifically requests in writing an earlier model or version and the contractor is willing to provide such model or version. 4.4 Price Changes Applicable only to Term Contracts. If this is a term contract for commodities or services, the following provisions apply. (a) Quantity Discounts. Contractors are urged to offer additional discounts for one time delivery of large single orders. Customers should seek to negotiate additional price concessions on quantity purchases of any products offered under the Contract. State Customers shall document their files accordingly. (b) Best Pricing Offer. During the Contract term, if the Customer becomes aware of better pricing offered by the Contractor for substantially the same or a smaller quantity of a product outside the Contract, but upon the same or similar terms of the Contract, then at the discretion of the Customer the price under the Contract shall be immediately reduced to the lower price. (c) Sales Promotions. In addition to decreasing prices for the balance of the Contract term due to a change in market conditions, a Contractor may conduct sales promotions involving price reductions for a specified lesser period. A Contractor shall submit to the Contract Specialist documentation identifying the proposed (1) starting and ending dates of the promotion, (2) products involved, and (3) promotional prices compared to then - authorized prices. Promotional prices shall be available to all Customers. Upon approval, the Contractor shall provide conspicuous notice of the promotion. (d) Trade -In. Customers may trade -in equipment when making purchases from the Contract. A trade -in shall be negotiated between the Customer and the Contractor. Customers are obligated to actively seek current fair market value when trading equipment, and to keep accurate records of the process. For State agencies, it 27 may be necessary to provide documentation to the Department of Financial Services and to the agency property custodian pursuant to Chapter 273, F.S. (e) Equitable Adjustment. The Customer may, in its sole discretion, make an equitable adjustment in the Contract terms or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor's control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss. 4.6 Additional Quantities. For a period not exceeding ninety (90) days from the date of solicitation award, the Customer reserves the right to acquire additional quantities up to the amount shown on the solicitation but not to exceed the threshold for Category Two at the prices submitted in the response to the solicitation. 4.6 Packaging. Tangible product shall be securely and properly packed for shipment, storage, and stocking in appropriate, clearly labeled, shipping containers and according to accepted commercial practice, without extra charge for packing materials, cases, or other types of containers. All containers and packaging shall become and remain Customer's property. 4.7 Inspection at Contractor's Site. The Customer reserves the right to inspect, at any reasonable time with prior notice, the equipment or product or plant or other facilities of a Contractor to assess conformity with Contract requirements and to determine whether they are adequate and suitable for proper and effective Contract performance. 4.8 Safety Standards. All manufactured items and fabricated assemblies subject to operation under pressure, operation by connection to an electric source, or operation involving connection to a manufactured, natural, or LP gas source shall be constructed and approved in a manner acceptable to the appropriate State inspector. Acceptability customarily requires, at a minimum, identification marking of the appropriate safety standard organization, where such approvals of listings have been established for the type of device offered and furnished, for example: the American Society of Mechanical Engineers for pressure vessels; the Underwriters Laboratories and /or National Electrical Manufacturers' Association for electrically operated assemblies; and the American Gas Association for gas- operated assemblies. In addition, all items furnished shall meet all applicable requirements of the Occupational Safety and Health Act and state and federal requirements relating to clean air and water pollution. 4.9 Americans with Disabilities Act. Contractors should identify any products that may be used or adapted for use by visually, hearing, or other physically impaired individuals. 4.10 Literature. Upon request, the Contractor shall furnish literature reasonably related to the product offered, for example, user manuals, price schedules, catalogs, descriptive brochures, etc. 4.11 Transportation and Delivery. Prices shall include all charges for packing, handling, freight, distribution, and inside delivery. Transportation of goods shall be FOB Destination to any point within thirty (30) days after the Customer places an Order. A Contractor, within five (5) days after receiving a purchase order, shall notify the Customer of any potential delivery delays. Evidence of inability or intentional delays shall be cause for Contract cancellation and Contractor suspension. 4.12 Installation. Where installation is required, Contractor shall be responsible for placing and installing the product in the required locations at no additional charge, unless otherwise designated on the Contract or purchase order. Contractor's authorized product and price list shall clearly and separately identify any additional installation charges. All materials used in the installation shall be of good quality and shall be free of defects that would diminish the appearance of the product or render it structurally or operationally unsound. Installation includes the furnishing of any equipment, rigging, and materials required to install or replace the product in the proper location. Contractor shall protect the site from damage and shall repair damages or injury caused during installation by Contractor or its employees or agents. If any alteration, dismantling, W., excavation, etc., is required to achieve installation, the Contractor shall promptly restore the structure or site to its original condition. Contractor shall perform installation work so as to cause the least inconvenience and interference with Customers and with proper consideration of others on site. Upon completion of the installation, the location and surrounding area of work shall be left clean and in a neat and unobstructed condition, with everything in satisfactory repair and order. 4.13 Risk of Loss. Matters of inspection and acceptance are addressed in s. 215.422, F.S. Until acceptance, risk of loss or damage shall remain with the Contractor. The Contractor shall be responsible for filing, processing, and collecting all damage claims. To assist the Contractor with damage claims, the Customer shall: record any evidence of visible damage on all copies of the delivering carrier's Bill of Lading; report damages to the carrier and the Contractor; and provide the Contractor with a copy of the carrier's Bill of Lading and damage inspection report. When a Customer rejects a product, Contractor shall remove it from the premises within ten days after notification or rejection. Upon rejection notification, the risk of loss of rejected or non - conforming product shall remain with the Contractor. Rejected product not removed by the Contractor within ten days shall be deemed abandoned by the Contractor, and the Customer shall have the right to dispose of it as its own property. Contractor shall reimburse the Customer for costs and expenses incurred in storing or effecting removal or disposition of rejected product. 4.14 Transaction Fee. The State of Florida has instituted MyFloridaMarketPlace, a statewide eProcurement System ( "System "). Pursuant to section 287.057(23), Florida Statutes (2002), all payments shall be assessed a Transaction Fee of one percent (1.0 %), which the Contractor shall pay to the State, unless exempt pursuant to 60A- 1.032, F.A.C. For payments within the State accounting system (FLAIR or its successor), the Transaction Fee shall, when possible, be automatically deducted from payments to the Contractor. If automatic deduction is not possible, the Contractor shall pay the Transaction Fee pursuant to Rule 60A- 1.031(2), F.A.C. By submission of these reports and corresponding payments, Contractor certifies their correctness. All such reports and payments shall be subject to audit by the State or its designee. Contractor shall receive a credit for any Transaction Fee paid by the Contractor for the purchase of any item(s) if such item(s) are returned to the Contractor through no fault, act, or omission of the Contractor. Notwithstanding the foregoing, a Transaction Fee is non - refundable when an item is rejected or returned, or declined, due to the Contractor's failure to perform or comply with specifications or requirements of the agreement. Failure to comply with these requirements shall constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the Contractor in addition to all outstanding fees. CONTRACTORS DELINQUENT IN PAYING TRANSACTION FEES MAY BE SUBJECT TO BEING REMOVED FROM THE DEPARTMENT OF MANAGEMENT SERVICES' VENDOR LIST AS PROVIDED IN RULE 60A- 1.006, F.A.C. 4.16 Invoicing and Payment. Invoices shall contain the Contract number, purchase order number if applicable, and the appropriate vendor identification number. The State may require any other information from the Contractor that the State deems necessary to verify any purchase order placed under the Contract. At the State's option, Contractors may be required to invoice electronically pursuant to guidelines of the Department of Management Services. Current guidelines require that Contractor supply electronic invoices in lieu of paper -based invoices for those transactions processed through the system. Electronic invoices shall be submitted to the Customer through the Ariba Supplier Network (ASN) in one of the following mechanisms — EDI 810, cXML, or web -based invoice entry within the ASN. Payment shall be made in accordance with sections 215.422 and 287.0585 of the Florida Statutes, which govern time limits for payment of invoices. Invoices that must be returned to a Contractor due to preparation errors will result in a delay in payment. Contractors may call (850) 413 -7269 Monday through Friday to inquire about the status of payments by State Agencies. The Customer is responsible for all payments under the Contract. A Customer's failure to pay, or delay in payment, shall not constitute a breach of the Contract and shall not relieve the Contractor of its obligations to the Department or to other Customers. 29 4.16 Taxes. The State does not pay Federal excise or sales taxes on direct purchases of tangible personal property. The State will not pay for any personal property taxes levied on the Contractor or for any taxes levied on employees' wages. Any exceptions to this paragraph shall be explicitly noted by the Customer in the special contract conditions section of the solicitation or in the Contract or purchase order. 4.17 Governmental Restrictions. If the Contractor believes that any governmental restrictions have been imposed that require alteration of the material, quality, workmanship or performance of the products offered under the Contract, the Contractor shall immediately notify the Customer in writing, indicating the specific restriction. The Customer reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the Customer. 4.18 Lobbying and Integrity. Customers shall ensure compliance with Section 11.062, FS and Section 216.347, FS. The Contractor shall not, in connection with this or any other agreement with the State, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State officer or employee's decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of, any State officer or employee. For purposes of clause (2), "gratuity" means any payment of more than nominal monetary value in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind. Upon request of the Customer's Inspector General, or other authorized State official, the Contractor shall provide any type of information the Inspector General deems relevant to the Contractor's integrity or responsibility. Such information may include, but shall not be limited to, the Contractor's business or financial records, documents, or files of any type or form that refer to or relate to the Contract. The Contractor shall retain such records for the longer of (1) three years after the expiration of the Contract or (2) the period required by the General Records Schedules maintained by the Florida Department of State (available at: http: / /dlis. dos. state. fl. us / barm /genschedules /Qensched.htm). The Contractor agrees to reimburse the State for the reasonable costs of investigation incurred by the Inspector General or other authorized State official for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the State which results in the suspension or debarment of the Contractor. Such costs shall include, but shall not be limited to: salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for any costs of investigations that do not result in the Contractor's suspension or debarment. 4.19 Indemnification. The Contractor shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall fully indemnify, defend, and hold harmless the State and Customers, and their officers, agents, and employees, from suits, actions, damages, and costs of every name and description, including attorneys' fees, arising from or relating to personal injury and damage to real or personal tangible property alleged to be caused in whole or in part by Contractor, its agents, employees, partners, or subcontractors, provided, however, that the Contractor shall not indemnify for that portion of any loss or damages proximately caused by the negligent act or omission of the State or a Customer. Further, the Contractor shall fully indemnify, defend, and hold harmless the State and Customers from any suits, actions, damages, and costs of every name and description, including attorneys' fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret or intellectual property right, provided, however, that the foregoing obligation shall not apply to a Customer's misuse or modification of Contractor's products or a Customer's operation or use of Contractor's products in a manner not contemplated by the Contract or the purchase order. If any product is the subject of an infringement suit, or in the Contractor's opinion is likely to become the subject of such a suit, the Contractor may at its sole expense procure for the Customer the right to continue using the product or to modify it to become non- infringing. If the Contractor is not reasonably able to modify or otherwise secure the Customer the right to continue using the product, the Contractor shall remove the product and refund the Customer the amounts paid in excess of a reasonable rental for past use. The customer shall not be liable for any royalties. all The Contractor's obligations under the preceding two paragraphs with respect to any legal action are contingent upon the State or Customer giving the Contractor (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at Contractor's sole expense, and (3) assistance in defending the action at Contractor's sole expense. The Contractor shall not be liable for any cost, expense, or compromise incurred or made by the State or Customer in any legal action without the Contractor's prior written consent, which shall not be unreasonably withheld. 4.20 Limitation of Liability. For all claims against the Contractor under any contract or purchase order, and regardless of the basis on which the claim is made, the Contractor's liability under a contract or purchase order for direct damages shall be limited to the greater of $100,000, the dollar amount of the contract or purchase order, or two times the charges rendered by the Contractor under the purchase order. This limitation shall not apply to claims arising under the Indemnity paragraph contain in this agreement. Unless otherwise specifically enumerated in the Contract or in the purchase order, no party shall be liable to another for special, indirect, punitive, or consequential damages, including lost data or records (unless the contract or purchase order requires the Contractor to back -up data or records), even if the party has been advised that such damages are possible. No party shall be liable for lost profits, lost revenue, or lost institutional operating savings. The State and Customer may, in addition to other remedies available to them at law or equity and upon notice to the Contractor, retain such monies from amounts due Contractor as may be necessary to satisfy any claim for damages, penalties, costs and the like asserted by or against them. The State may set off any liability or other obligation of the Contractor or its affiliates to the State against any payments due the Contractor under any contract with the State. 4.21 Suspension of Work. The Customer may in its sole discretion suspend any or all activities under the Contract or purchase order, at any time, when in the best interests of the State to do so. The Customer shall provide the Contractor written notice outlining the particulars of suspension. Examples of the reason for suspension include, but are not limited to, budgetary constraints, declaration of emergency, or other such circumstances. After receiving a suspension notice, the Contractor shall comply with the notice and shall not accept any purchase orders. Within ninety days, or any longer period agreed to by the Contractor, the Customer shall either (1) issue a notice authorizing resumption of work, at which time activity shall resume, or (2) terminate the Contract or purchase order. Suspension of work shall not entitle the Contractor to any additional compensation. 4.22 Termination for Convenience. The Customer, by written notice to the Contractor, may terminate the Contract in whole or in part when the Customer determines in its sole discretion that it is in the State's interest to do so. The Contractor shall not furnish any product after it receives the notice of termination, except as necessary to complete the continued portion of the Contract, if any. The Contractor shall not be entitled to recover any cancellation charges or lost profits. 4.23 Termination for Cause. The Customer may terminate the Contract if the Contractor fails to (1) deliver the product within the time specified in the Contract or any extension, (2) maintain adequate progress, thus endangering performance of the Contract, (3) honor any term of the Contract, or (4) abide by any statutory, regulatory, or licensing requirement. Rule 60A- 1.006(3), F.A.C., governs the procedure and consequences of default. The Contractor shall continue work on any work not terminated. Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises from events completely beyond the control, and without the fault or negligence, of the Contractor. If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is completely beyond the control of both the Contractor and the subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform, unless the subcontracted products were obtainable from other sources in sufficient time for the Contractor to meet the required delivery schedule. If, after termination, it is determined that the Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Customer. The rights and remedies of the Customer in this clause are in addition to any other rights and remedies provided by law or under the Contract. 31 4.24 Force Majeure, Notice of Delay, and No Damages for Delay. The Contractor shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence of the Contractor or its employees or agents contributed to the delay and the delay is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar cause wholly beyond the Contractor's control, or for any of the foregoing that affect subcontractors or suppliers if no alternate source of supply is available to the Contractor. In case of any delay the Contractor believes is excusable, the Contractor shall notify the Customer in writing of the delay or potential delay and describe the cause of the delay either (1) within ten (10) days after the cause that creates or will create the delay first arose, if the Contractor could reasonably foresee that a delay could occur as a result, or (2) if delay is not reasonably foreseeable, within five (5) days after the date the Contractor first had reason to believe that a delay could result. THE FOREGOING SHALL CONSTITUTE THE CONTRACTOR'S SOLE REMEDY OR EXCUSE WITH RESPECT TO DELAY. Providing notice in strict accordance with this paragraph is a condition precedent to such remedy. No claim for damages, other than for an extension of time, shall be asserted against the Customer. The Contractor shall not be entitled to an increase in the Contract price or payment of any kind from the Customer for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference, or hindrance from any cause whatsoever. If performance is suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after the causes have ceased to exist the Contractor shall perform at no increased cost, unless the Customer determines, in its sole discretion, that the delay will significantly impair the value of the Contract to the State or to Customers, in which case the Customer may (1) accept allocated performance or deliveries from the Contractor, provided that the Contractor grants preferential treatment to Customers with respect to products subjected to allocation, or (2) purchase from other sources (without recourse to and by the Contractor for the related costs and expenses) to replace all or part of the products that are the subject of the delay, which purchases may be deducted from the Contract quantity, or (3) terminate the Contract in whole or in part. 4.25 Changes. The Customer may unilaterally require, by written order, changes altering, adding to, or deducting from the Contract specifications, provided that such changes are within the general scope of the Contract. The Customer may make an equitable adjustment in the Contract price or delivery date if the change affects the cost or time of performance. Such equitable adjustments require the written consent of the Contractor, which shall not be unreasonably withheld. If unusual quantity requirements arise, the Customer may solicit separate bids to satisfy them. 4.26 Renewal. Upon mutual agreement, the Customer and the Contractor may renew the Contract, in whole or in part, for a period that may not exceed 3 years or the term of the contract, whichever period is longer. Any renewal shall specify the renewal price, as set forth in the solicitation response. The renewal must be in writing and signed by both parties, and is contingent upon satisfactory performance evaluations and subject to availability of funds. 4.27 Purchase Order Duration. Purchase orders issued pursuant to a state term or agency contract must be received by the Contractor no later than close of business on the last day of the contract's term to be considered timely. The Contractor is obliged to fill those orders in accordance with the contract's terms and conditions. Purchase orders received by the contractor after close of business on the last day of the state term or agency contract's term shall be considered void. Purchase orders for a one -time delivery of commodities or performance of contractual services shall be valid through the performance by the Contractor, and all terms and conditions of the state term or agency contract shall apply to the single delivery/performance, and shall survive the termination of the Contract. Contractors are required to accept purchase orders specifying delivery schedules exceeding the contracted schedule even when such extended delivery will occur after expiration of the state term or agency contract. For example, if a state term contract calls for delivery 30 days after receipt of order (ARO), and an order specifies delivery will occur both in excess of 30 days ARO and after expiration of the state term contract, the Contractor will accept the order. However, if the Contractor expressly and in writing notifies the ordering office within ten (10) calendar days of receipt of the purchase order that Contractor will not accept the extended delivery terms beyond the expiration of the state term contract, then the purchase order will either be amended 32 in writing by the ordering entity within ten (10) calendar days of receipt of the contractor's notice to reflect the state term contract delivery schedule, or it shall be considered withdrawn. The duration of purchase orders for recurring deliveries of commodities or performance of services shall not exceed the expiration of the state term or agency contract by more than twelve months. However, if an extended pricing plan offered in the state term or agency contract is selected by the ordering entity, the contract terms on pricing plans and renewals shall govern the maximum duration of purchase orders reflecting such pricing plans and renewals. Timely purchase orders shall be valid through their specified term and performance by the Contractor, and all terms and conditions of the state term or agency contract shall apply to the recurring delivery/performance as provided herein, and shall survive the termination of the Contract. Ordering offices shall not renew a purchase order issued pursuant to a state term or agency contract if the underlying contract expires prior to the effective date of the renewal. 4.28 Advertising. Subject to Chapter 119, Florida Statutes, the Contractor shall not publicly disseminate any information concerning the Contract without prior written approval from the Customer, including, but not limited to mentioning the Contract in a press release or other promotional material, identifying the Customer or the State as a reference, or otherwise linking the Contractor's name and either a description of the Contract or the name of the State or the Customer in any material published, either in print or electronically, to any entity that is not a party to Contract, except potential or actual authorized distributors, dealers, resellers, or service representative. 4.29 Assignment. The Contractor shall not sell, assign or transfer any of its rights, duties or obligations under the Contract, or under any purchase order issued pursuant to the Contract, without the prior written consent of the Customer. In the event of any assignment, the Contractor remains secondarily liable for performance of the contract, unless the Customer expressly waives such secondary liability. The Customer may assign the Contract with prior written notice to Contractor of its intent to do so. 4.30 Antitrust Assignment. The Contractor and the State of Florida recognize that in actual economic practice, overcharges resulting from antitrust violations are in fact usually borne by the State of Florida. Therefore, the contractor hereby assigns to the State of Florida any and all claims for such overcharges as to goods, materials or services purchased in connection with the Contract. 4.31 Dispute Resolution. Any dispute concerning performance of the Contract shall be decided by the Customer's designated contract manager, who shall reduce the decision to writing and serve a copy on the Contractor. The decision shall be final and conclusive unless within twenty one (21) days from the date of receipt, the Contractor files with the Customer a petition for administrative hearing. The Customer's decision on the petition shall be final, subject to the Contractor's right to review pursuant to Chapter 120 of the Florida Statutes. Exhaustion of administrative remedies is an absolute condition precedent to the Contractor's ability to pursue any other form of dispute resolution; provided, however, that the parties may employ the alternative dispute resolution procedures outlined in Chapter 120. Without limiting the foregoing, the exclusive venue of any legal or equitable action that arises out of or relates to the Contract shall be the appropriate state court in Leon County, Florida; in any such action, Florida law shall apply and the parties waive any right to jury trial. 4.32 Employees, Subcontractors, and Agents. All Contractor employees, subcontractors, or agents performing work under the Contract shall be properly trained technicians who meet or exceed any specified training qualifications. Upon request, Contractor shall furnish a copy of technical certification or other proof of qualification. All employees, subcontractors, or agents performing work under the Contract must comply with all security and administrative requirements of the Customer and shall comply with all controlling laws and regulations relevant to the services they are providing under the Contract. The State may conduct, and the Contractor shall cooperate in, a security background check or otherwise assess any employee, subcontractor, 33 or agent furnished by the Contractor. The State may refuse access to, or require replacement of, any personnel for cause, including, but not limited to, technical or training qualifications, quality of work, change in security status, or non - compliance with a Customer's security or other requirements. Such approval shall not relieve the Contractor of its obligation to perform all work in compliance with the Contract. The State may reject and bar from any facility for cause any of the Contractor's employees, subcontractors, or agents. 4.33 Security and Confidentiality. The Contractor shall comply fully with all security procedures of the United States, State of Florida and Customer in performance of the Contract. The Contractor shall not divulge to third parties any confidential information obtained by the Contractor or its agents, distributors, resellers, subcontractors, officers or employees in the course of performing Contract work, including, but not limited to, security procedures, business operations information, or commercial proprietary information in the possession of the State or Customer. The Contractor shall not be required to keep confidential information or material that is publicly available through no fault of the Contractor, material that the Contractor developed independently without relying on the State's or Customer's confidential information, or material that is otherwise obtainable under State law as a public record. To insure confidentiality, the Contractor shall take appropriate steps as to its personnel, agents, and subcontractors. The warranties of this paragraph shall survive the Contract. 4.34 Contractor Employees, Subcontractors, and Other Agents. The Customer and the State shall take all actions necessary to ensure that Contractor's employees, subcontractors and other agents are not employees of the State of Florida. Such actions include, but are not limited to, ensuring that Contractor's employees, subcontractors, and other agents receive benefits and necessary insurance (health, workers' compensations, and unemployment) from an employer other than the State of Florida. 4.35 Insurance Requirements. During the Contract term, the Contractor at its sole expense shall provide commercial insurance of such a type and with such terms and limits as may be reasonably associated with the Contract. Providing and maintaining adequate insurance coverage is a material obligation of the Contractor. Upon request, the Contractor shall provide certificate of insurance. The limits of coverage under each policy maintained by the Contractor shall not be interpreted as limiting the Contractor's liability and obligations under the Contract. All insurance policies shall be through insurers authorized or eligible to write policies in Florida. 4.36 Warranty of Authority. Each person signing the Contract warrants that he or she is duly authorized to do so and to bind the respective party to the Contract. 4.37 Warranty of Ability to Perform. The Contractor warrants that, to the best of its knowledge, there is no pending or threatened action, proceeding, or investigation, or any other legal or financial condition, that would in any way prohibit, restrain, or diminish the Contractor's ability to satisfy its Contract obligations. The Contractor warrants that neither it nor any affiliate is currently on the convicted vendor list maintained pursuant to section 287.133 of the Florida Statutes, or on any similar list maintained by any other state or the federal government. The Contractor shall immediately notify the Customer in writing if its ability to perform is compromised in any manner during the term of the Contract. 4.38 Notices. All notices required under the Contract shall be delivered by certified mail, return receipt requested, by reputable air courier service, or by personal delivery to the agency designee identified in the original solicitation, or as otherwise identified by the Customer. Notices to the Contractor shall be delivered to the person who signs the Contract. Either designated recipient may notify the other, in writing, if someone else is designated to receive notice. 4.39 Leases and Installment Purchases. Prior approval of the Chief Financial Officer (as defined in Section 17.001, F.S.) is required for State agencies to enter into or to extend any lease or installment- purchase agreement in excess of the Category Two amount established by section 287.017 of the Florida Statutes. 4.40 Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE). Section 946.515(2), F.S. requires the following statement to be included in the solicitation: "It is expressly understood and agreed that any articles which are the subject of, or required to carry out, the Contract shall be purchased from the corporation identified under Chapter 946 of the Florida Statutes (PRIDE) in the same manner and under the 34 same procedures set forth in section 946.515(2) and (4) of the Florida Statutes; and for purposes of the Contract the person, firm, or other business entity carrying out the provisions of the Contract shall be deemed to be substituted for the agency insofar as dealings with such corporation are concerned." Additional information about PRIDE and the products it offers is available at http: / /www.pridefl.com. 4.41 Products Available from the Blind or Other Handicapped. Section 413.036(3), F.S. requires the following statement to be included in the solicitation: "It is expressly understood and agreed that any articles that are the subject of, or required to carry out, this contract shall be purchased from a nonprofit agency for the Blind or for the Severely Handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and under the same procedures set forth in section 413.036(1) and (2), Florida Statutes; and for purposes of this contract the person, firm, or other business entity carrying out the provisions of this contract shall be deemed to be substituted for the State agency insofar as dealings with such qualified nonprofit agency are concerned." Additional information about the designated nonprofit agency and the products it offers is available at http: / /www.respectofflorida.om. 4.42 Modification of Terms. The Contract contains all the terms and conditions agreed upon by the parties, which terms and conditions shall govern all transactions between the Customer and the Contractor. The Contract may only be modified or amended upon mutual written agreement of the Customer and the Contractor. No oral agreements or representations shall be valid or binding upon the Customer or the Contractor. No alteration or modification of the Contract terms, including substitution of product, shall be valid or binding against the Customer. The Contractor may not unilaterally modify the terms of the Contract by affixing additional terms to product upon delivery (e.g., attachment or inclusion of standard preprinted forms, product literature, "shrink wrap" terms accompanying or affixed to a product, whether written or electronic) or by incorporating such terms onto the Contractor's order or fiscal forms or other documents forwarded by the Contractor for payment. The Customer's acceptance of product or processing of documentation on forms furnished by the Contractor for approval or payment shall not constitute acceptance of the proposed modification to terms and conditions. 4.43 Cooperative Purchasing. Pursuant to their own governing laws, and subject to the agreement of the Contractor, other entities may be permitted to make purchases at the terms and conditions contained herein. Non - Customer purchases are independent of the agreement between Customer and Contractor, and Customer shall not be a party to any transaction between the Contractor and any other purchaser. State agencies wishing to make purchases from this agreement are required to follow the provisions of s. 287.042(16)(a), F.S. This statute requires the Department of Management Services to determine that the requestor's use of the contract is cost - effective and in the best interest of the State. 4.44 Waiver. The delay or failure by the Customer to exercise or enforce any of its rights under this Contract shall not constitute or be deemed a waiver of the Customer's right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. 4.45 Annual Appropriations. The State's performance and obligation to pay under this contract are contingent upon an annual appropriation by the Legislature. 4.46 Execution in Counterparts. The Contract may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 4.47 Severability. If a court deems any provision of the Contract void or unenforceable, that provision shall be enforced only to the extent that it is not in violation of law or is not otherwise unenforceable and all other provisions shall remain in full force and effect. [The remainder of this page is intentionally left blank (other than footer information).] 35 SECTION 5.0 SPECIAL CONDITIONS CONTENTS: 5.1 DEFINITIONS 5.2 PERIOD OF AGREEMENT 5.3 CATALOG DATA 5.4 INTERNET POSTING OF AUTHORIZED LISTS 5.5 ORDERING INSTRUCTIONS INFORMATION 5.6 CEILING PRICES 5.7 COMMODITY, COMMODITY GROUP, AND MANUFACTURER / BRAND NAME ADDITIONS AND DELETIONS 5.8 MSRP LIST AND PRICE ADJUSTMENT 5.9 ACQUISITION BY ELIGIBLE USERS 5.10 CONTRACT PRICE QUOTES AND SALES LITERATURE / TECHNICAL INFORMATION 5.11 PURCHASE ORDERS 5.12 PURCHASING CARD 5.13 ACKNOWLEDGEMENT OF ORDER 5.14 COMMODITIES TITLE AND REGISTRATION 5.15 TRANSPORTATION AND DELIVERY 5.16 ACCEPTANCE 5.17 CONTRACT SALES SUMMARY AND TRANSACTION FEE REPORTS 5.18 LOBBYING 5.19 COMPLIANCE WITH LAWS [The remainder of this page is intentionally left blank (other than footer information).] 36 5.1 Definitions The Definitions found and referenced in the General Contract Conditions [PUR1000 (10/06)], Section 4.1, and the Definitions found and referenced in Section 3.3, Definitions, shall apply to this Section 5.1, Definitions. 5.2 Period of Agreement The State Term Contract shall be in effect beginning on the Contract Formation date, per Section 2.17, and end June 30, 2012. This agreement has the option to renew for one (1) additional three (3) year period, or any portion or portions thereof. Renewal is contingent upon satisfactory performance by the Contractor and will not be subject to pricing or discount adjustments. 5.3 Catalog Data The MyFloridaMarketPlace ( "MFMP ") third -party service provider is responsible for converting Contract catalog information into a format supported by the system. To accomplish this conversion, the Contractor, if requested, shall provide certain information in electronic format directly to the service provider (Note: This format is generally Microsoft Excel TM.). Within ten (10) business days of written notice from the MFMP service provider, Contractor shall provide all information necessary to facilitate electronic purchases from this Contract. Such information may include, but is not limited to, Contractor Name, Manufacturer / Brand Name, SKU, Commodity Description, unit of measure, and Contract Ceiling Price, per Section 5.6. Contractor shall provide this information in the format required by the MFMP service provider. No costs or expenses associated with providing this information shall be charged to the State, Department, Eligible Users, or MFMP service provider. With the Contractor's timely assistance, the MFMP service provider shall create and maintain web -based placement of the requested Contract information. 5.4 Internet Posting of Authorized Lists During the Contract Period of Agreement, Section 5.2, the Department shall maintain on the internet a working copy of the complete Contract, including, but not limited to, the Section 7.1, Price Sheet & Ordering Instructions, with the associated and Department approved MSRP List(s). The MSRP List(s) will be provided to the Department by the Contractor in electronic format as stipulated in Section 3.9.5, Supporting Documents, MSRP List; as required herein; and in accordance with the prices, discounts, requirements, specifications, terms, and conditions of the Contract. The Contractor agrees to not maintain, publish, provide, or allow discovery of competing, conflicting, unofficial, unauthorized, or non - Department approved contract similar documents to or by Eligible Users. However, the Contractor may manually or electronically direct Eligible Users to the Department's Contract website. The Contractor shall not accept any orders using unofficial MSRP List(s) until the Department approves the respective MSRP List(s) and publishes it/ them to the Contract website as noted above. The Department may, in its sole discretion, prohibit any update or change of the MSRP List(s), or direct a Contractor to undo any update or change made. In addition, the Department may direct rescission of any purchase entered into on the basis of competing, conflicting, unofficial, unauthorized, or non - Department approved documents or lists. 5.5 Ordering Instructions Information The Ordering instructions are contained or referenced via a link from the individual Line No.'s Organization Name field in the Section 7.1, Price Sheet & Ordering Instructions. Click on the specific link for the associated Ordering Instructions. 37 The Ordering Instructions contained or referenced within Section 7.1, Price Sheet & Ordering Instructions, will contain current information relevant to the acquisition of the awarded Commodities and / or contractual services under the Contract. This information shall include, but not be limited to, the Contractor's Organization Information, the Contractor's Representative Information, the Contractor's Remit -To Information, and a list of Department maintained instructions to assist Eligible Users in placing orders under the Contract. Should the Contractor be the Manufacturer (not a Dealer) of the Commodities and / or contractual services awarded, they may also include specific Dealer information within the Ordering Instructions in the provided locations. The Manufacturer as Contractor who selects to also include specific Dealer information within the Ordering Instructions is also required to appropriately register the listed Dealers as locations under the Contractor's vendor registration in the State of Florida Vendor Registration System (Vendor Information Portal ( "VIP "): https: // vendor .mvfloridamarketplace.com /). A Dealer as Contractor may not include other Dealer's information in the Ordering Instructions. The Manufacturer as Contractor is fully responsible for compliance with all the prices, discounts, requirements, specifications, terms, and conditions of the Contract and for any actions or inactions of the Dealer(s) they include in the Ordering Instructions. It is the Contractor's responsibility to notify the Department of any updates to organization information, relevant personnel, and contact information contained in the Ordering Instructions. The Contractor shall notify the Department of a requested change to the Ordering Instructions in writing (email is acceptable) and received by the Contract Manager no later than five (5) business days prior to the effective date of the proposed change. The Department may accept or reject any proposed change, or may unilaterally amend the Ordering Instructions as it deems is in the best interest of the State and / or will best assist Eligible Users. Please Note: Any changes to the Ordering Instructions will also require the Contractor to appropriately update their vendor registration in the State of Florida Vendor Registration System (Vendor Information Portal ( "VIP "): https: // vendor .mvfloridamarketplace.com/). 6.6 Ceiling Prices The individual Base Equipment Net Price (after the applicable Base Equipment MSRP Discount is applied to the approved MSRP); OEM Option, Accessory, & Implement Net Price (after the applicable OEM Options, Accessories, & Implements MSRP Discount is applied to the approved MSRP); and OEM Part Net Price (after the applicable OEM Parts MSRP Discount is applied to the approved MSRP) contained or referenced in the Section 7.1, Price Sheet & Ordering Instructions, will be the not -to- exceed Ceiling Prices under the Contract. The Ceiling Prices for the Base Equipment; OEM Options, Accessories, & Implements; and OEM Parts individually and collectively include (as applicable): all profit, administrative charges / fees, environmental charges / fees, title application and registration charges / fees, license plate transfer charges / fees, preparation charges / fees, assembly charges / fees, installation charges / fees (except OEM Parts), shop charges / fees, warehousing charges / fees, packing charges / fees, handling charges / fees, transit charges / fees, freight charges / fees, shipping charges / fees, delivery charges / fees to any point within the State of Florida, fuel charges / fees, warranty charges / fees, and any other charges or fees necessary to provide and deliver the Base Equipment; OEM Options, Accessories, & Implements; and OEM Parts according to the requirements, specifications, terms, and conditions, exclusive of taxes. Where a Ceiling Price is a Base Equipment Net Price; OEM Option, Accessory, & Implement Net Price; or OEM Part Net Price, the individual Net Prices shall be calculated by applying the applicable Base Equipment MSRP Discount; OEM Options, Accessories, & Implements MSRP Discount; or OEM Parts MSRP Discount from Section 7.1, Price Sheet & Ordering Instructions, to the individual Base Equipment's; OEM Option's, Accessory's, & Implement's; and OEM Part's approved MSRP and rounding to the nearest whole cent. For example, if the applicable Discount is 30.00% and the 01 individual Commodity's MSRP is $24,447.59, then the Net Price will be $17,113.31 [$24,447.59 — 30.00% = $17,113.313 = $17,113.31 (as rounded to the nearest whole cent)]. The individual and applicable Base Equipment MSRP Discounts; OEM Options, Accessories, & Implements MSRP Discounts; and OEM Parts Discounts listed in Section 7.1, Price Sheet & Ordering Instructions shall be the minimum Discounts used under the Contract. The Contractor may, and is encouraged to provide larger Discounts (e.g., lower Net Prices) for contracted and awarded Commodities. Eligible Users may negotiate Base Equipment Net Prices; OEM Options, Accessories, & Implements Net Prices; and OEM Parts Net Prices for the contracted and awarded Commodities with the Contractor, provided the negotiated prices do not exceed the Ceiling Prices for the respective Base Equipment; OEM Option, Accessory, & Implement; and OEM Part. The Contractor is prohibited from negotiating and charging prices that exceed the Ceiling Prices set forth or referenced in the Price Sheet & Ordering Instructions, Section 7.1, and from invoicing or billing at prices that exceed the total ordered (e.g., via Purchase Order or Purchasing Card, as applicable). The Ceiling Prices are only subject to adjustments per Sections 4.4, 4.25, and 5.8, and any revision requests must have received the prior approval of the Department. The Ceiling Price for any Base Equipment; OEM Options, Accessories, & Implements; and OEM Parts must not exceed the current MSRP. In the event a Ceiling Price for any Commodity is found to be above the current MSRP, the Department, at its sole option, shall reduce the Ceiling Price to the current MSRP less the applicable contracted Discount or terminate and remove the Contractor's award from the Contract. 5.7 Commodity, Commodity Group, and Manufacturer/ Brand Name Additions and Deletions During the Contract Period of Agreement, Section 5.2, the Department shall have the right to add or delete Commodities, Commodity Groups, and / or Manufacturer / Brand Names to or from this agreement by adding them to or removing them from the Price Sheet & Ordering Instructions, Section 7.1. Any new Commodities, Commodity Groups, and / or Manufacturer / Brand Names added will be at the requirements, specifications, terms, and conditions herein or as later stipulated by the Department, and at mutually agreed pricing and discounts accepted, in writing, by both the added Commodity's, Commodity Group's, and / or Manufacturer / Brand Name's Vendor(s) and the Department. Commodities, Commodity Groups, and / or Manufacturer / Brand Names may be removed at the sole discretion of the Department, per the requirements, specifications, terms, and conditions herein or as permitted by Florida Statutes or Florida Administrative Code. 5.8 MSRP List and Price Adjustment The per Commodity Group and Manufacturer / Brand Name Department authorized MSRP List will be contained or referenced in Section 7.1, Price Sheet & Ordering Instructions. The Department authorized MSRP List shall be based on the Section 7.1, Price Sheet & Ordering Instructions, Commodity Group and Manufacturer / Brand Name, and in accordance with the Contract requirements, specifications, terms, and conditions. The Contract's initial MSRP List shall be based on the Section 7.1, Price Sheet & Ordering Instructions, Commodity Group and Manufacturer / Brand Name MSRP List awarded under the Contract's solicitation. The Department authorized per Commodity Group and Manufacturer / Brand Name MSRP List for use under the Contract may be updated from time -to -time as specified herein; however, the per Commodity Group and Manufacturer / Brand Name Base Equipment MSRP Discount; OEM Options, Accessories, & Implements MSRP Discount; and OEM Parts MSRP Discount shall not decrease for the length of the Contract, during both the original and any renewal term(s) of the Contract. At any time during the Contract, during both the original and any renewal term(s) of the Contract, the Contractor may request an increase of the per Commodity Group and Manufacturer / Brand Name Base 39 Equipment MSRP Discount; OEM Options, Accessories, & Implements MSRP Discount; and OEM Parts MSRP Discount. The Department may, in its sole discretion, accept or deny any requested per Commodity Group and Manufacturer / Brand Name Base Equipment MSRP Discount; OEM Options, Accessories, & Implements MSRP Discount; and OEM Parts MSRP Discount increases. If a per Commodity Group and Manufacturer / Brand Name Base Equipment MSRP Discount; OEM Options, Accessories, & Implements MSRP Discount; and OEM Parts MSRP Discount increase request is approved by the Department, it shall not become effective for new orders placed by Eligible Users until the Department approved effective date and posting by the Department. Any Department approved updates to the MSRP List, if Department approved, shall be based on the Section 7.1, Price Sheet & Ordering Instructions, Commodity Group and Manufacturer / Brand Name, and in accordance with the Contract requirements, specifications, terms, and conditions. During the Contract Period of Agreement, Section 5.2, including any renewal term(s), after the first twelve (12) months following the start of the Contract term, and no more often than one (1) time per calendar year, the Contractor may request to use an updated per Commodity Group and Manufacturer / Brand Name MSRP List for use under the Contract. The Contractor shall advise the Department of a request for a per Commodity Group and Manufacturer / Brand Name MSRP List update in writing (email is acceptable) and received by the Contract Manager no later than sixty (60) days prior to the requested effective date of the proposed update. However, the Department will not consider a per Commodity Group and Manufacturer / Brand Name MSRP List update request received by the Contract Manager within one hundred fifty (150) days of Contract termination, including any renewal term(s). The Contractor fully agrees that any per Commodity Group and Manufacturer / Brand Name MSRP List update request must: • include a detailed request letter identifying the requested per Commodity Group and Manufacturer / Brand Name MSRP List information to be used in the Section 7.1, Price Sheet & Ordering Instructions, per Commodity Group and Manufacturer / Brand Name [Include MSRP List Name, MSRP List Date, and MSRP List Pages / Sections ] field; • be from the most current per Commodity Group and Manufacturer / Brand Name MSRP List publicly listed and verifiable at the time of the requested MSRP List update; s include the applicable requested per Commodity Group and Manufacturer / Brand Name MSRP List in accordance with Section 3.9.5, Supporting Documents, MSRP List; s fully offer, provide, and demonstrate through a separate electronic analysis document that the per common Commodity (those specific Commodities currently on the pre- existing per Commodity Group and Manufacturer / Brand Name MSRP List and the requested per Commodity Group and Manufacturer / Brand Name MSRP List update) difference in the pre- existing MSRP and requested MSRP update does not exceed the resulting percent change in the latest version of the U.S. Department of Labor, Producer Price Index ( "PPI ") for Series ID: • for Commodity Group Nos. 1 and 8: WPU112D03; Not Seasonally Adjusted; Group: Machinery and equipment; Item: Graders, rollers, compactors, forklifts; Base Date: 0312; from the Base Month (Contract Formation Date, Section 2.17, or last approved MSRP List update date, whichever is later) to the latest month for which non - preliminary data is available at the time of the requested MSRP List update; • for Commodity Group No. 2: WPU112605; Not Seasonally Adjusted; Group: Machinery and equipment; Item: Power cranes, excavators & equipment; Base Date: 9912; from the Base Month (Contract Formation Date, Section 2.17, or last approved MSRP List update date, whichever is later) to the latest month for which non - preliminary data is available at the time of the requested MSRP List update; • for Commodity Group Nos. 3, 7, 9, 10, and 11: WPU114403; Not Seasonally Adjusted; Group: Machinery and equipment; Item: Industrial trucks and tractors; Base Date: 8200; from the Base Month (Contract Formation Date, Section 2.17, or last approved MSRP List update date, whichever is later) to the latest month for which non - preliminary data is available at the time of the requested MSRP List update; • for Commodity Group Nos. 4, 5, and 6: WPU114A04; Not Seasonally Adjusted; Group: Machinery and equipment; Item: Tractor shovel loaders; Base Date: 8200; from the Base Month (Contract Formation Date, Section 2.17, or last approved MSRP List update .S date, whichever is later) to the latest month for which non - preliminary data is available at the time of the requested MSRP List update; • for Commodity Group Nos. 12, 13, and 14: WPU149111; Not Seasonally Adjusted; Group: Transportation equipment; Item: Transportation equipment, n.e.c.; Base Date: 198506; from the Base Month (Contract Formation Date, Section 2.17, or last approved MSRP List update date, whichever is later) to the latest month for which non - preliminary data is available at the time of the requested MSRP List update; • for Commodity Group No. 15: WPU111408; Not Seasonally Adjusted; Group: Machinery and equipment; Item: Farm machinery and equipment, nec excl parts; Base Date: 0212; from the Base Month (Contract Formation Date, Section 2.17, or last approved MSRP List update date, whichever is later) to the latest month for which non - preliminary data is available at the time of the requested MSRP List update; • for Commodity Group Nos. 16, 17, 18, 19, 20, 21, 22, 23, and 24: WPU111401; Not Seasonally Adjusted; Group: Machinery and equipment; Item: Commercial turf & grounds care equipment; Base Date: 200212; from the Base Month (Contract Formation Date, Section 2.17, or last approved MSRP List update date, whichever is later) to the latest month for which non - preliminary data is available at the time of the requested MSRP List update; and ■ Note: The U.S. Department of Labor, PPI indices are available at: http: / /www.bls.gov /ppi /home.htm. Scroll to and click on: "Series Report"; Enter Series ID "WPU######" (see Series ID codes above) and scroll to and click on "Retrieve Data ". • be in accordance with the requirements, specifications, terms, and conditions of the Contract. The Department may, in its sole discretion, accept or deny any requested per Commodity Group and Manufacturer / Brand Name MSRP List update. If a per Commodity Group and Manufacturer / Brand Name MSRP List update request is approved by the Department, it shall not become effective for new orders placed by Eligible Users until the Department approved effective date and posting by the Department. 5.9 Acquisition by Eligible Users Eligible Users are encouraged to purchase any contracted Commodities and contractual services, including Base Equipment; OEM Options, Accessories, & Implements; and OEM Parts, that will meet their needs, provide the lowest total cost, and be in accordance with the Eligible User's applicable procurement and fleet statutes, laws, ordinances, codes, rules, policies, and procedures. Any non- contract products and services must be ordered and invoiced as non - contract options separately from Contract purchases in accordance with the Eligible User's applicable procurement and fleet statutes, laws, ordinances, codes, rules, policies, and procedures. Eligible Users may purchase Base Equipment with any individual or combination of contracted OEM Options, Accessories, & Implements and OEM Parts or without any contracted OEM Options, Accessories, & Implements and OEM Parts. Additionally, OEM Options, Accessories, & Implements and OEM Parts may be purchased separate of any contracted Base Equipment. 5.10 Contract Price Quotes and Sales Literature / Technical Information Eligible Users may request and the Contractor will provide within five (5) business days no charge Contract Price Quotes under the Contract. The Contractor agrees that Contract Price Quotes provided to an Eligible User shall be submitted for only those Commodity Groups, Manufacturer / Brand Names, and Commodities which the Contractor is awarded, and that the awarded Commodities quoted are the minimum required to meet the Eligible User's needs. All Contract Price Quotes will be according to the Prices, Discounts, requirements, specifications, terms, and conditions of the Contract, and will include the following: • Quotation Date. • Quotation Number (as applicable). 41 • Contractor Information. • State Term Contract Number and Name. • Base Equipment: Commodity Group, Line Number, Base Equipment code and description, and negotiated Base Equipment Net Price (per Section 5.6, Ceiling Prices). • OEM Options, Accessories, & Implements (if applicable, individually listed): OEM Option, Accessory, & Implement code and description; OEM Option, Accessory, & Implement negotiated OEM Option, Accessory, & Implement Net Price (as applicable, per Section 5.6, Ceiling Prices). • OEP Parts (if applicable, individually listed): OEM Part code and description, and negotiated OEM Part Net Price (per Section 5.6, Ceiling Prices). • New License Plate Fee (if applicable, per Section 5.14, Commodities Title and Registration). • Total State Term Contract negotiated Price (sum of the applicable negotiated Base Equipment Net Price(s); OEM Options, Accessories, & Implements Net Price(s); OEM Parts Net Price(s), and New License Plate Fee(s)). During the Term of the Contract, the Contractor shall supply no charge printed Sales Literature and Technical Information to Eligible Users upon request, unless the literature and information requested is available on the Contractor's or Manufacturer's website. If the literature and information is available on the Contractor's or Manufacturer's website, the Contractor will direct the requesting Eligible User to the specific website location. All Eligible User requests for Sales Literature and Technical Information shall be completed by the Contractor within five (5) business days. 5.11 Purchase Orders Under the Contract, Eligible Users may place orders using a Purchase Order or using a Purchasing Card, per Section 5.12. Purchase Orders issued by Eligible Users shall be in accordance with the Ordering Instructions (contained within Section 7.1, Price Sheet & Ordering Instructions) and the Prices, Discounts, requirements, specifications, terms, and conditions of the Contract. The Contractor and the Eligible User agree to the following: • Under the Contract, Eligible Users may only place and Contractors shall only accept Purchase Orders for Commodity Group and Manufacturer / Brand Name and Commodities the Contractor is awarded. • For each Commodity and contractual service ordered, Eligible Users are responsible for notating the following information on and with the Purchase Order based on their negotiations (per Section 5.6, Ceiling Prices) with the Contractor: • Eligible User's issuing contact person and contact information; • Contractor Information from the Ordering Instructions; • State Term Contract Number and Name; • Base Equipment: Commodity Group, Line Number, Base Equipment code and description, and negotiated Base Equipment Net Price (per Section 5.6, Ceiling Prices); ■ Note: Specify any special needs or instructions (e.a., other associated equipment). • OEM Options, Accessories, & Implements (if applicable, individually listed): OEM Option, Accessory, & Implement code and description; OEM Option, Accessory, & Implement negotiated OEM Option, Accessory, & Implement Net Price (as applicable, per Section 5.6, Ceiling Prices); ■ Note: Specify any special needs or instructions (e.g., other associated equipment). • OEP Parts (if applicable, individually listed): OEM Part code and description, and negotiated OEM Part Net Price (per Section 5.6, Ceiling Prices); • New License Plate Fee (if applicable, per Section 5.14, Commodities Title and Registration); and • Any Eligible User special instructions, requirements, terms, and conditions; 42 o Total State Term Contract negotiated Price (sum of the applicable negotiated Base Equipment Net Price(s); OEM Options, Accessories, & Implements Net Price(s); OEM Parts Net Price(s), and New License Plate Fee(s)). • Contractor will place all orders received with the Manufacturer(s) within seven (7) calendar days after receipt of the Purchase Order unless the Contractor has the applicable Base Equipment; OEM Options, Accessories, & Implements (if applicable); and OEM Parts (if applicable) ordered in their possession and can Deliver the order to the Eligible User within fourteen (14) calendar days. All orders placed with the Manufacturer(s) shall be made in full compliance with the requirements, specifications, terms, and conditions herein. • Contractor shall honor all Purchase Orders received during the Contract Period of Agreement (Section 5.2) for Commodity Group and Manufacturer / Brand Name Commodities the Contractor is currently awarded (Section 7.1, Price Sheet & Ordering Instructions). • Unless the Contractor has the applicable Base Equipment; OEM Options, Accessories, & Implements (if applicable); and OEM Parts (if applicable) ordered by the Eligible User in their possession, the Contractor will provide an Acknowledgement of Order form, per Section 54, to the Eligible User. • Contractor, from receipt of the Purchase Order until delivery is made to the ordering Eligible User, shall promptly notify the Eligible User of any potential delivery delays. Additionally, the Contractor must promptly advise the ordering Eligible User if their order may not be delivered prior to the end of the Eligible User's Fiscal Year (State Agency's Fiscal Year ends June 30). Evidence of intentional delays in delivery shall be cause for default proceedings and / or Contract termination. This Section 5.11, Purchase Orders, does not modify or replace Section 4.2, Purchase Orders, of the Contract. 5.12 Purchasing Card The State of Florida and numerous Eligible Users have adopted and implemented various Purchasing Card programs using different universal card formats (e.g., American Express, MasterCard, and Visa). Accordingly, the Contractor and the Manufacturer's authorized Dealers must have the ability to accept universal card format Purchasing Cards, including American Express, MasterCard, and Visa, during the Contract term. Contractors and Manufacturer's authorized Dealers may receive payments from Eligible Users by universal card format Purchasing Cards in the same manner as other credit / debit card purchases. Universal card format Purchasing Cards (e.g., American Express, MasterCard, and Visa) acceptance is mandatory, but is not the exclusive method of payment (e.g., Purchase Order). The method of ordering and payment (e.g., Purchase Order, Purchasing Card) shall be selected by the Eligible User. The Eligible User will not fill out any Contractor or Manufacturer's authorized Dealer forms or separate contracts in association with the Contractor or Manufacturer's authorized Dealer accepting a Purchasing Card payment. Contractors and Manufacturer's authorized Dealers are not allowed to charge a fee for accepting a Purchasing Card payment. Surcharges or convenience fees are prohibited. On -line billing or payment systems maintained by the Contractor, Manufacturer's authorized Dealer, or their respective agent will not store the card holder's name, account number, and expiration date for re -use. Card holders will provide the Contractor or Manufacturer's authorized Dealer, as applicable, with card account information at each Purchasing Card transaction. All individual purchases made using a Purchasing Card must be equal to or less than $500.00, and Contractors, Manufacturer's authorized Dealers, and Eligible Users may not intentionally segment or divide orders to avoid the stated dollar limitation. 43 5.13 Acknowledgement of Order For orders which the Contractor does not have the awarded Commodities in stock and cannot Deliver the Commodities to the ordering Eligible User within fourteen (14) calendar days, the Acknowledgement of Order form shall be fully completed and issued by the Contractor to notify the ordering Eligible User of the receipt of the Purchase Order for Commodities awarded under the Contract, the Manufacturer's order confirmation information, and the estimated delivery date. The Contractor must mail, email, or fax the fully completed Acknowledgement of Order form to the ordering Eligible User's issuing office within fourteen (14) calendar days from the date the Contractor receives the Purchase Order under the Contract. Failure of the Contractor to provide the ordering Eligible User the Acknowledgement of Order form within fourteen (14) calendar days from the date the Contractor received the Purchase Order will be considered acceptance of the order by default, which, if necessary, shall require the provision of the next new model of the Commodity, which meets the Prices, Discounts, requirements, specifications, terms, and conditions herein. Submission of the Acknowledgement of Order form is to be the responsibility of the Contractor without prompting or notification by the Contract Manager or Eligible User. Repeated failures by the Contractor to submit completed Acknowledgement of Order forms to the ordering Eligible Users shall be cause for default proceedings and / or Contract termination. Upon Contract Formation, Section 2.17, the Department shall distribute, in electronic format, the Acknowledgement of Order form to be used by the Contractor. 5.14 Commodities Title and Registration Applicable awarded Commodities delivered under the Contract will be titled and registered by the Contractor in accordance with Chapters 319 and 320 of the Florida Statutes. The Contractor shall send any necessary form(s) that must be signed by an authorized representative of the Eligible User with the awarded Commodity(ies) upon delivery, and the Contractor shall obtain any necessary signature(s) and complete the titling and registration process for the Eligible User in a timely manner. In the event the Eligible User is permitted by statute, law, rule, ordinance, code, policy, and procedure to obtain Title and Registration independent of the Contractor, and chooses to obtain Title and Registration independent of the Contractor, the Eligible User shall notify the Contractor in writing of this decision no later than three (3) business days following receipt of the Acknowledgement of Order form, per Section 5.8, Acknowledgement of Order. However, the Eligible User will then be obligated to Title and Register the awarded Commodity per applicable statute, law, rule, ordinance, code, policy, and procedure, and the Contractor shall provide any documents necessary for the Eligible User to do so. For applicable awarded Commodities, Eligible Users may elect to transfer an existing license plate, or may choose to obtain a new license plate. • Should an Eligible User elect to transfer an existing license plate, this is the standard default order type and does not require specific notation on the Purchase Order. All related fees, see Section 5.6, Ceiling Prices, are included in the Base Equipment Net Price. • Should an Eligible User elect to obtain a new license plate in lieu of transferring their old license plate, or if the awarded Commodity is an addition to their fleet and requires a new license plate, the Purchase Order should include a notation and an additional amount to cover the cost of a new license plate. The Contractor is not required to obtain new license plates for the Eligible User unless there is a notation and a new license plate fee is included on the Purchase Order. All related charges and fees, see Section 5.6, Ceiling Prices, except the new license plate cost are included in the Base Equipment Net Price. o The Eligible User's Purchase Order notation for a new license plate must include the request for a new license plate, what type of license plate is required, and a contact person's name, title, and telephone number should there be any questions. 44 o The Contractor may obtain special plates such as "State ", "County ", or "City" from most county tax offices, but agency plates such as "DOT ", "DC ", "DNR ", etc. must be obtained from the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, in Tallahassee, Florida. Note: The State of Florida is self - insured; therefore, a "Proof of Insurance" form is not required (Refer to F.S. Chapter 284.30, Part II) for Title and Registration. Questions concerning the lack of a "Proof of Insurance Certificate" when applying for a license plate may be answered by calling (850) 488 -4127. 5.15 Transportation and Delivery In conjunction with Section 5.6, Ceiling Prices, Base Equipment Net Prices; OEM Options, Accessories, & Implements Net Prices; and OEM Parts Net Prices shall include all charges for packing, handling, freight, distribution, and delivery. Transportation and Delivery of goods shall be FOB Destination to any point statewide as follows: • Manufacturer direct to the Eligible User: Within one hundred eighty (180) calendar days after receipt of order. • Dealer to the Eligible User: Within fourteen (14) calendar days after receipt of order or the Commodities from the Manufacturer(s), with one exception — Commodities requiring post - Manufacturer Dealer installed OEM Options, Accessories, & Implements must be delivered within thirty (30) calendar days after receipt of the Commodities from the Manufacturer(s). Delivery of the awarded Commodity is defined as receipt of the Commodity at the Eligible User's place of business or designated location. Delivery does not constitute Acceptance, per Section 5.16 of the Contract. The Contractor must give the ordering Eligible User a minimum of twenty -four (24) hours notice prior to delivery. Deliveries will be received as stipulated by the Eligible User. Deliveries of awarded Commodities shall be made by either private or common carrier transport. Where deliveries may be accomplished by driving the self - propelled, street - legal, Commodity three (3) road miles or less, the self- propelled Commodity may be driven, under supervision, to the delivery location. The Contractor must comply with the Manufacturer's break -in requirements and all applicable traffic laws. All self - propelled operator occupied Commodities Delivered by the Contractor to the Eligible User shall contain no less than one - quarter (1/4) tank of fuel as indicated by the fuel gauge at the time of delivery. At the Eligible User's option, Commodities with less than one - quarter (1/4) tank of fuel at delivery may be rejected or $3.00 per gallon or gallon equivalent up to one - quarter of the Commodity's fuel tank capacity may be deducted from the invoice and payment. The Contractor will perform the standard Manufacturer's Pre - Delivery Inspection, and is responsible for delivering an awarded Commodity that is properly serviced, clean, and in first class operating condition. Pre - delivery service, at a minimum, shall include the following: • Complete lubrication of operating chassis, engine, and mechanisms with Manufacturer's recommended grades of lubricants; • Check / Fill all fluid levels to assure proper fill; • Adjust engine(s) to proper operating condition(s); • Inflate tires to proper pressure; • Check to assure proper operation of all accessories, gauges, lights, and mechanical and hydraulic features; • Clean equipment, if necessary, and remove all unnecessary tags, stickers, papers, etc.; • Assure that the awarded Commodity is completely assembled (unless otherwise noted in the following sub - section) including Base Equipment and OEM Options, Accessories, & Implements, thoroughly tested, and ready for immediate operation upon delivery; and o For Commodities within Commodity Group No. 16, the Commodities shall be fully assembled except that components vulnerable to damage, pilferage, and loss, or that 45 would otherwise increase cubage, such as controls, control rods, levers, and handles may be packed separately. For such Commodities, printed assembly instructions along with all bolts, nuts, pins, and washers necessary to assemble removed components shall be securely packaged with the Commodities. Where applicable, packaged to insure safe delivery to the destination. Packaging shall comply with the requirements of Section 403.7191, Florida Statutes. Each package will be marked to include the name of the Contractor, the State Term Contract number, Purchase Order number, and brief description of the contents. All Commodities will be delivered with each of the following applicable documents completed and included: • Copy of the Manufacturer's Pre - Delivery Inspection form, which meets or exceeds the requirement herein; • Copy of ordering Eligible User's Purchase Order; • Copy of the applicable Manufacturer(s)'s specification(s); • Copy of the Manufacturer's Invoice(s) (prices may be deleted or obscured) for each Commodity, including individual Base Equipment and OEM Options, Accessories, & Implements, in the shipment; • Manufacturer's Window Sticker(s), if applicable; • Manufacturer's Certificate of Origin, if applicable; • Manufacturer's Operator Manual, and (if not included in the operator manual) one (1) each of the Manufacturer's lubrication and maintenance instructions; • Copy of the Manufacturer's Standard Warranty Certifications; • Sales Tax Exemption Form, if applicable; • Temporary Tag and twenty (20) day Extension Tag, if applicable; and • DHSMV82040, Application for Certificate of Title and /or Vehicle Registration, if applicable. Deliveries that do not include the above applicable forms and publications, or that have forms that have been altered, or are not properly completed, will be refused! Repeated failures by the Contractor to include the above properly completed forms and publications, or that have submitted altered forms, to the ordering Eligible Users shall be cause for default proceedings and / or Contract termination. These Transportation and Delivery requirements, terms, and conditions also apply to the re- delivery of an awarded Commodity that was previously rejected upon initial delivery. This Section 5.13, Transportation and Delivery, supersedes and replaces Section 4.11, Transportation and Delivery. 6.16 Acceptance The Eligible User, within three (3) business days of delivery, will thoroughly inspect the Commodity(ies) received for acceptability. The Eligible User shall compare the physical Commodity(ies) delivered; Contract Prices, Discounts, requirements, specifications, terms, and conditions; Purchase Order; and Manufacturer's Window Sticker / Manufacturer's Invoice(s) to ensure the Commodity(ies) received meet or exceed the requirements, specifications, terms, and conditions of the Contract and Purchase Order. Additionally, the Eligible User will inspect the Commodity(ies) for any physical damage. The Contractor is obligated to correct any errors or damage in the Commodity(ies). Failure by the Eligible User to discover an error in the Commodity(ies) shall not relieve the Contractor from their obligation to correct the error in the event it is found anytime after the Commodity(ies) is delivered. The Parties agree that inspection and Acceptance will be the Eligible User's responsibility and occur at the location of the Eligible User. Title and risk of loss or damage to all Commodities shall be the responsibility of the Contractor until Accepted by the Eligible User. The Contractor shall be responsible for filing, processing, and collecting all damage claims. The Eligible User shall assist the Contractor by: • Recording any evidence of visible damage on all copies of the delivering carrier's bill of lading; 46 Report any known visible and concealed damage to the carrier and the Contractor; Confirm said reports in writing within fifteen (15) business days of delivery, requesting that the carrier inspect the damaged merchandise; and Provide the Contractor with a copy of the carrier's bill of lading and damage inspection report. Transportation and Delivery of the Commodity(ies), per Section 5.15 of the Contract, does not constitute Acceptance for the purpose of payment. Final Acceptance and authorization of payment shall be given by the Eligible User only after a thorough inspection indicates that the Commodity(ies) is undamaged and meets the Contract requirements, specifications, terms, and conditions. Should the delivered Commodity(ies) be damaged or differ in any respect from the Contract requirements, specifications, terms, and conditions, payment will be withheld until such time as the Contractor completes the required, Eligible User approved, corrective action(s). Should the Commodity(ies) require service or adjustments as part of the Eligible User approved corrective action(s), the Contractor shall either remedy the defect(s) or be responsible for reimbursing the Manufacturer's local authorized service Vendor or others selected by the Eligible User to remedy the defect(s). The Contractor shall initiate such required service or adjustments within two (2) business days following notification by the Eligible User. The Commodity(ies) will not be Accepted until all service and / or adjustments are satisfactory and the Commodity(ies) is re- delivered in acceptable condition. The costs of any Transportation and Delivery, Section 5.15, required as part of the initial or any re- deliveries due to error or damage are the responsibility of the Contractor. The ordering Eligible User shall notify the Department of any Contract deviation that it cannot resolve with the Contractor. The Department and Eligible User will develop a corrective action plan related to the Contract deviation, which may include the Eligible User's permanent refusal to Accept the Commodity(ies), in which case the Commodity(ies) shall remain the property of the Contractor, and the Eligible User and the State will not be liable for payment for any portion thereof. 5.17 Contract Sales Summary and Transaction Fee Reports Contract Sales Summary: The Contractor is required to provide annual fiscal year Contract Sales Summaries to the Contract Manager within fifteen (15) calendar days after the end of each fiscal year during the term of the Contract, including any renewals. The fiscal year is a twelve (12) month period beginning July 1 and ending on June 30 of each year. Contract Sales Summaries shall document all orders completed, for which payment was received, during the specified fiscal year. Contract Sales Summaries will have two (2) separate components: 1. The report's first component shall specifically document the quantity and total sales by Commodity Group and Manufacturer / Brand Name sold; including Base Equipment; OEM Options, Accessories, & Implements; and OEM Parts; differentiating between Eligible User types, State Agencies and Other Eligible Users. 2. The report's second component shall specifically document all individual sales, including the sales date, Eligible User's organization name, a brief Commodity and / or contractual service description, quantity, and total sales amount. The Contractor is also required to provide partial year Contract Sales Summaries under the same terms as the annual summaries for portions of the Contract term that occur outside a complete fiscal year. These partial summaries will be due July 15, 2010 for the period beginning on the Contract Formation date, per Section 2.17, and ending June 30, 2010, and within fifteen (15) calendar days after the termination of the Contract for the period beginning July 1 of the Contract's final year and ending on the Contract termination date. The Department may require additional ad hoc Contract Sales Summaries for various periods of time; the Contractor shall submit these specific ad hoc summaries within twenty (20) calendar days of notification by the Department. Initiation and submission of the Contract Sales Summaries are to be the responsibility of the Contractor without prompting or notification by the Contract Manager. The Contractor will submit the completed 47 Contract Sales Summary forms by email to the Contract Manager as stipulated. The Department shall distribute, in electronic format, the Contract Sales Summary forms to be used by the Contractor upon Contract Formation, Section 2.17. Transaction Fee Report: The Contractor is required to submit monthly Transaction Fee Reports in electronic format. For information on how to submit Transaction Fee Reports online, please reference the detailed fee reporting instructions and Vendor training presentations available online at the Transaction Fee Reporting and Vendor Training subsections under Vendors on the MyFloridaMarketPlace website (located at http: / /dms.mvflorida.com /mfmp). Assistance is also available with the Transaction Fee Reporting System from the MyFloridaMarketPlace Customer Service Desk at feeprocessinQ (Mmvfloridamarketplace.com or 866- FLA -EPRO (866- 352 -3776) between the hours of 8:00 AM to 5:30 PM Eastern Time. 5.18 Lobbying In accordance with Section 216.347, Florida Statutes, and as provided herein, the Contractor may not expend any State funds for the purpose of lobbying the legislature, the judicial branch, the executive branch, or any State Agency. This restriction does not apply to requests of the Contractor to provide any information relating to any aspect of this Contract, if requested by any legislative, judicial, or executive branch, or any State Agency. 5.19 Compliance with Laws The Contractor shall comply with all laws, rules, codes, ordinances, and licensing requirements that are applicable to the conduct of its business, including those of federal, State, and local agencies having jurisdiction and authority. By way of non - exhaustive example, Chapter 287 of the Florida Statutes and Chapter 60A -1 of the Florida Administrative Code govern the Contract. By way of further non - exhaustive example, the Contractor shall comply with section 247A(e) of the Immigration and Nationalization Act, the Americans with Disabilities Act, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran's status. Violation of such laws shall be grounds for Contract termination. [The remainder of this page is intentionally left blank (other than footer information).] SECTION 6.0 TECHNICAL SPECIFICATIONS CONTENTS: 6.1 DEFINITIONS 6.2 SCOPE AND ELIGIBLE COMMODITIES 6.3 COMMODITY SPECIFICATIONS AND STANDARDS 6.4 FEDERAL AND STATE STANDARDS 6.6 TESTING 6.6 WARRANTY 6.7 COMMODITY COMPLIANCE AND COMPATIBILITY [The remainder of this page is intentionally left blank (other than footer information).] 49 6.1 Definitions The Definitions found and referenced in the Special Conditions, Section 5.1, shall apply to this Section 6.1, Definitions. 6.2 Scope and Eligible Commodities The Construction, Industrial, Agricultural, & Lawn Equipment Commodities (including the Base Equipment; associated OEM Options, Accessories, & Implements; and associated OEM Parts) offered under the Contract shall be classified under twenty -four (24) Commodity Groups, which are listed and described as follows: GR ©UP E APPApfE I►IIMtlMIiY ti �R4U tiwTION R ��' Group No. 1 760 -360 CONSTRUCTION /INDUSTRIAL, MOTOR GRADER & MAINTAINER Group No. 2 760 -840 CONSTRUCTION /INDUSTRIAL, EXCAVATOR: CRAWLER/TRACK, WHEEL, & TRUCK MOUNTED Group No. 3 760 -900 CONSTRUCTION /INDUSTRIAL, DOZER: CRAWLER/TRACK & WHEEL Group No. 4 760 -420 CONSTRUCTION /INDUSTRIAL, LOADER: CRAWLER/TRACK Group No. 5 760 -460 CONSTRUCTION /INDUSTRIAL, LOADER: SKID STEER Group No. 6 760 -480 CONSTRUCTION /INDUSTRIAL, LOADER: WHEEL Group No. 7 760 -960 CONSTRUCTION /INDUSTRIAL, BACKHOE- LOADER: CRAWLER/TRACK & WHEEL Group No. 8 560 -650 FORKLIFT/TELESCOPIC HANDLER, RIDING TYPE (INCLUDING ROUGH TERRAIN Group No. 9 765 -900 TRACTOR, AGRICULTURAUSPECIALTY: CRAWLER/TRACK & WHEEL INCLUDING 4WD Group No. 10 765 -900 TRACTOR, UTILITY: CRAWLER/TRACK & WHEEL (EQUAL TO OR GREATER THAN 40 HP Group No. 11 765 -900 TRACTOR, COMPACT UTILITY: CRAWLER/TRACK & WHEEL (LESS THAN 40 HP UTILITY VEHICLE, OFF -ROAD: PASSENGER, CARGO, INDUSTRIAL, & Group No. 12 071 -860 TURF (NOT INCLUDING LOW -SPEED VEHICLE ( "LSV") OR NEIGHBORHOOD ELECTRIC VEHICLE "NEV" Group No. 13 071 -820 ALL TERRAIN VEHICLE ( "AN") Group No. 14 071 -840 AMPHIBIOUS ALL TERRAIN VEHICLE ( "AATV") ACCESSORY & IMPLEMENT, MOWER/TRACTORNEHICLE /EQUIPMENT MOUNTED OR TOWED: INCLUDING AERATOR, BACKHOE, BLOWER, BOX 020 -010, 020 -030, 020 -150, 020- BLADE, CATCHER, CHIPPER /SHREDDER, DETHATCHER, DOZER BLADE, 360, 020 -660, 020 -670, 515 -070, EDGER, GRINDER, LOADER, MATERIAL HANDLING (E.G., FORKS), Group No. 15 515 -140, 515 -210, 515 -280, 515- MOWER /CUTTER (FINISHING, FLAIL, ROTARY, SICKLE, & REEL TYPES; 350, 515 -490, 515 -700, 515 -770, BOOM MOUNTED OR PULL BEHIND), PAINTER, PLOW, POSTHOLE 515 -860, 765430, 765 -640, Etc. DIGGER, PULVERIZER, RAKE, SEEDER, SOD CUTTER, SPIKER, SPUTTER, SPRAYER, SPREADER, TILLER, TOPDRESSER, TRENCHER, TRIMMER, & VACUUM LAWN EQUIPMENT; STANDING, HAND -HELD, BACKPACK, & WALK/WORK- 020 -660, 515 -070, 515 -140, 515- BEHIND: INCLUDING AERATOR, BLOWER, CHAIN SAW, Group No. 16 210, 515 -350, 515 -490, 515 -700, CHIPPER /SHREDDER, EDGER, GRINDER, PAINTER, OVERSEEDER, RAKE, 515 -770, 545 -680, Etc. SEEDER, SOD CUTTER, TILLER, TOPDRESSER, TRIMMER, & VACUUM NOT INCLUDING MOWER Group No. 17 515 -630 MOWER, LAWN, WALK/STAND- BEHIND, OCCASIONAURESIDENTIAL TYPE Group No. 18 515 -630 MOWER, LAWN, WALK/STAND- BEHIND, PROFESSIONAUCOMMERCIAL TYPE Group No. 19 515 -630 MOWER/TRACTOR, LAWN, RIDING TYPE Group No. 20 515 -630 MOWER/TRACTOR, LAWN & GARDEN, RIDING TYPE Group No. 21 515 -630 MOWER, FRONT (REAR WHEEL STEERING), RIDING TYPE Group No. 22 515 -630 MOWER, ZERO TURN RADIUS, RIDING TYPE Group No. 23 515 -630 MOWER, WIDE -AREA, RIDING TYPE Group No. 24 515 -900 GOLF & TURF EQUIPMENT, OTHER (NOT INCLUDED IN OTHER GROUPS) - Applicable Commodity Codes are provided for general information purposes only. Eligible Users must confirm the appropriate and applicable Commodity Codes to be used. 50 The Contract is intended to cover only those Construction, Industrial, Agricultural, and Lawn Equipment Commodities generally used by the State of Florida as listed and described herein, and does not include all varieties of equipment that are commercially available. Commodities not eligible, permitted, included, or available under the requirements, specifications, terms, and conditions of the Contract include, but are not limited to, portable generators, pressure washers, specialty forestry equipment, and street -legal small utility vehicles (a.k.a. Low -Speed Vehicles [ "LSVs "], Neighborhood Electric Vehicles [ "NEVs "]). The Department in its sole discretion shall determine the eligibility and acceptability of all Commodities available and included under the Contract. The Contractor will be responsible for removing all non - eligible and unacceptable Commodities under the Contract. Delivery of non - conforming Commodities and contractual services, which are not remedied as reauired herein, shall be cause for default proceedings and / or Contract termination. 6.3 Commodity Specifications and Standards The Commodity Specifications and Standards are based on the known needs of Eligible Users and best information available to the Department at the time the Commodity Specifications and Standards were created. The following specifications and standards form a part of the overall Technical Specifications except as modified or noted herein. All Commodities, including all Base Equipment; OEM Options, Accessories, & Implements; OEM Parts; and their respective features, equipment, and components, must individually and jointly comply with the following: • All Commodities shall be designed, constructed, equipped, assembled (except as specified in Section 5.15, Transportation and Delivery), and installed (OEM Parts do not include installation) to be fully suitable for their intended use, purpose, and service; • All Commodities shall be new and unused (except as specified in Section 5.15, Transportation and Delivery), for the current Manufacturer's model year or later, of current or recent production, and of the latest design and construction; • All Commodities shall be bio- diesel (B -20), compressed natural gas ( "CNG "), diesel, electric, gasoline (E -10 to E -85), liquefied petroleum gas ( "LPG "), natural gas, or propane powered; • All Commodities shall include all OEM standard features, equipment, and components, Manufacturer or Dealer installed according to the Manufacturer's standard procedures, requirements, and specifications; • All Commodities shall be free of damage and / or rust which may affect appearance or serviceability; • All Commodities shall comply with current legal, customary, reasonable, and prudent standards of professionalism and care in the industry; • All Commodities shall comply with current mandatory and applicable federal and State of Florida motor vehicle, mobile equipment, legal, safety, and environmental standards and requirements; and • All Commodities shall meet the requirements, specifications, terms, and conditions herein. No Contractor's or Dealer's advertising or identification (name, logos, etc.) is permitted on the Commodities, including all Base Equipment; OEM Options, Accessories, & Implements; OEM Parts; and their components. Commodity Manufacturer's advertising or identification (name, model, logos, etc.) shall be permitted on the respective Commodities if such advertising or identification is a Manufacturer's standard on the specific Commodity. The Department in its sole discretion will determine what is Contractor's or Dealer's advertising or identification, what is Commodity Manufacturer's advertising or identification, and what advertising or identification is acceptable. The Contractor shall be responsible for removing, without damage, all unacceptable advertising or identification. 51 Delivery of non - conforming Commodities and contractual services, which are not remedied as required herein, shall be cause for default proceedings and'/ or Contract termination. 6.4 Federal and State Standards It is the intent of the Department that all specifications herein are in full and complete compliance with all federal and State of Florida laws, requirements, and regulations applicable to the type and class of Commodities and contractual services being provided. This includes, but is not limited to, Federal Motor Vehicle Safety Standards ( "FMVSS "), Occupational Safety and Health Administration ( "OSHA "), Environmental Protection Agency ( "EPA ") Standards, and State of Florida laws, requirements, and regulations that apply to the type and class of Commodities and contractual services being provided. In addition, any applicable federal or State legislation that should become effective during the term of the Contract, including any renewals, regarding the Commodities and contractual services' specifications, safety, and environmental requirements shall immediately become a part of the Contract. The Contractor must meet or exceed any such requirements of the laws and regulations. If an apparent conflict exists, the Contractor and Authorized Dealer must contact the Contract Manager immediately. Delivery of non-conforming Commodities and contractual services which are not remedied as required herein, shall be cause for default proceedings and / or Contract termination. 6.5 Testing Samples of delivered Commodities and contractual services may be selected at random by the Department or Eligible User and tested for compliance with the requirements, specifications, terms, and conditions. Delivery of non - conforming Commodities and contractual services, which are not remedied as required herein, shall be cause for default proceedings and / or Contract termination. 6.6 Warranty The Manufacturer's Standard Warranty shall cover all Commodities and contractual services of the Contract. The Manufacturer's Standard Warranty is required to provide coverage against defective material, workmanship, and failure to perform in accordance with the specifications and required performance criteria. The Manufacturer's Standard Warranty coverage must be identical to or exceed the most inclusive of those normally provided for the Commodities and contractual services specified herein that are sold to any state or local governments. The Manufacturer's Standard Warranty shall have a minimum term of one (1) year from the date of Acceptance, Section 5.16, and will begin only at the time of Acceptance by the Eligible User. Should the Manufacturer's Standard Warranty conflict with any requirements, specifications, terms, or conditions of the Contract, the Contract requirements, specifications, terms and conditions shall prevail. The Manufacturer's Standard Warranty terms and conditions are not part of the Contract requirements, specifications, terms, and conditions. Delivery of non - conforming Commodities and contractual services, which are not remedied as required herein, shall be cause for default proceedings and / or Contract termination. 6.7 Commodity Compliance and Compatibility It is the Contractor's responsibility to insure that the Commodity / Commodities supplied are compliant with the Contract requirements, specifications, terms, and conditions. Additionally, the Contractor must insure that the Commodity / Commodities ordered by the Eligible User are fully compatible with each other and with any associated pre- existing Commodity / Commodities possessed by the Eligible User 52 and pre - disclosed to the Contractor by the Eligible User. The Contractor's acceptance of the Eligible User's Purchase Order shall indicate that the Contractor agrees to deliver Commodity / Commodities that will be fully compliant and compatible with the Contract requirements, specifications, terms, and conditions. In the event any ordered Base Equipment; OEM Options, Accessories, & Implements; OEM Parts; and their respective features, equipment, and components are found by the Eligible User to be missing, incorrect, defective, damaged, non - compatible, or non - compliant, the Contractor shall, at the Eligible User's discretion, be required to do one of the following: • Install or repair the Base Equipment; OEM Options, Accessories, & Implements; OEM Parts; and their respective features, equipment, and components; • Replace the Base Equipment; OEM Options, Accessories, & Implements; OEM Parts; and their respective features, equipment, and components; or • Refund the purchase price of the applicable Base Equipment; OEM Options, Accessories, & Implements; and OEM Parts to the Eligible User. Any chancres necessary after the delivery of the Commodity / Commodities that are required to bring a Commodity / Commodities into compliance and / or compatibility due to an incorrect order fulfillment by the Contractor will be accomplished at the Contractor's expense. _Delivery of non - conforming Commodities and contractual services, which are not remedied as required herein, shall be cause for default proceedings and / or Contract termination. [The remainder of this page is intentionally left blank (other than footer information).] 53 SECTION 7.0 PRICE SHEET & ORDERING INSTRUCTIONS AND FORMS CONTENTS: 7.1 PRICE SHEET & ORDERING INSTRUCTIONS (MICROSOFT EXCEL- ATTACHMENT REQUIRING SEPARATE DOWNLOAD; SUBMITTED ORIGINAL(S) MAINTAINED BY THE DEPARTMENT OF MANAGEMENT SERVICES.) 7.2 SOLICITATION PREPARATION CHECKLIST (SUBMITTED ORIGINAL(S) MAINTAINED BY THE DEPARTMENT OF MANAGEMENT SERVICES.) 7.3 MANUFACTURER'S CERTIFICATION (SUBMITTED ORIGINAL(S) MAINTAINED BY THE DEPARTMENT OF MANAGEMENT SERVICES.) 7.4 SAVINGS / PRICE REDUCTIONS (SUBMITTED ORIGINAL(S) MAINTAINED BY THE DEPARTMENT OF MANAGEMENT SERVICES.) 7.6 CONTRACT SIGNATURE PAGE (PLEASE NOTE: THIS DOCUMENT IS PROVIDED FOR REFERENCE PURPOSES AND IS NOT REQUIRED TO BE SUBMITTED AS PART OF A SOLICITATION RESPONSE. HOWEVER, SHOULD THE DEPARTMENT DETERMINE TO MAKE AWARD, SUBMITTAL OF THIS DOCUMENT IN DUPLICATE SHALL BE REQUIRED. ANY SUBMITTED ORIGINAL(S) MAINTAINED BY THE DEPARTMENT OF MANAGEMENT SERVICES.) 7.6 CERTIFICATION OF DRUG -FREE WORKPLACE (SUBMITTED ORIGINAL(S) MAINTAINED BY THE DEPARTMENT OF MANAGEMENT SERVICES.) [The remainder of this page is intentionally left blank (other than footer information).] 54 7.2 Solicitation Preparation Checklist The Solicitation Preparation Checklist is a guide to assist the Respondent in verifying the completeness of their response. The Solicitation Preparation Checklist does not relieve the Respondent of the responsibility of ensuring that all requirements of the solicitation are met with submittal of their response. Check off each of the following as you comply: The Respondent has fulfilled all Sales Summary, Usage Fee, and Transaction Fee reporting and payment requirements as specified in the requirements, terms, and conditions of all previous or existing agreements with State of Florida agencies. Download, read, understand, and agree to the entire solicitation, including all attachments (ITB No. 03- 760 - 000 -S; Construction, Industrial, Agricultural, & Lawn Equipment: Sections 1.0 through 7.6 of the solicitation, and the MyFloridaMarketPlace RFX Info tab contents). Review and abide by the Timeline, Section 1.2 of the solicitation. If necessary, review the MyFloridaMarketPlace Sourcing Tool Online Training Guide and / or receive assistance from the MyFloridaMarketPlace Customer Service Desk at 866- FLA -EPRO (866- 352 -3776) or vendorhel p(&-myflorida marketplace. com. Submit any Questions via the MyFloridaMarketPlace Q &A Board, no later than as specified in the Timeline, Section 1.2 of the solicitation. View the Department's Answers to the submitted questions as posted in any Addendum or Amendment to the solicitation on the MyFloridaMarketPlace Sourcing Tool and / or Vendor Bid System. Download the Price Sheet & Ordering Instructions (Section 7.1), review carefully, enter required discounts and information on the Price Sheet & Ordering Instructions, and upload the Price Sheet & Ordering Instructions to the MyFloridaMarketPlace Sourcing Tool as required. Provide answers to all required questions within the MyFloridaMarketPlace Sourcing Tool. Submit response using the MyFloridaMarketPlace Sourcing Tool. Mail any required documents and forms specified in Section 3.9, Submittal of Response, of the solicitation documents to the attention of: Christopher P. Walker, FCCM Purchasing Analyst Division of State Purchasing Department of Management Services 4050 Esplanade Way, Suite 360 Tallahassee, FL 32399 -0950 The outer packaging shall clearly state Solicitation Title, Solicitation Number, and Solicitation Opening Date and Time. 55 7.3 Manufacturer's Certification This is to certify that Organization Name is the Manufacturer or Manufacturer's authorized Dealer of Manufacturer/ Brand Name BY: DATE: MANUFACTURER NAME: ADDRESS: TELEPHONE NUMBER(S): E -MAIL: AUTHORIZED EMPLOYEE NAME: SIGNATURE: NOTE: THE MANUFACTURER'S CERTIFICATION FORM MUST BE COMPLETED AND SUBMITTED PER SECTION 3.9.6, MANUFACTURER'S CERTIFICATION. Azil 7.4 Savings i Price Reductions The Respondent is required to furnish the combined average percent ( %) savings offered compared to MSRP, retail, list, published, or other usual and customary prices that would be paid by the purchaser without benefit of a contract resulting from this solicitation. DAT Competitive Discounts offered in Section 7.1, Price Sheet & Ordering Instructions, provide (Insert Savings % for Commodities Offered in Table Below] % combined average savings off of the MSRP, retail, list, published, or other usual and customary prices for: GROUP COMBINED AVERAGE % SAVINGS OFF MSRP Group No.1 % Group No.2 Group No.3 % Group No.4 Group No.5 % Group No.6 % Group No.7 % Group No.8 % Group No.9 % Group No. 10 % Group No. 11 % Group No. 12 % Group No. 13 % Group No. 14 % Group No. 15 Group No. 16 % Group No. 17 % Group No. 18 % Group No. 19 % Group No. 20 % Group No. 21 % Group No. 22 % Group No. 23 Group No. 24 % TOTAL AVERAGE: HOW CAN WE VERIFY THE CLAIMED SAVINGS (example: retail or other usual and customary prices published at [URL], or other source of benchmark prices [supply documents])? AUTHORIZED SIGNATURE: TELEPHONE NUMBER: RESPONDENT NAME: 57 IF CONTRACT AWARDED, STATE PURCHASING ANALYST / SPECIALIST TOOK THE FOLLOWING STEPS TO VERIFY THE SAVINGS OFFERED: WHAT WERE THE RESULTS? PURCHASING ANALYST / SPECIALIST: PUR 7064 (Rev 2/04) 58 7.5 Contract Signature Page CONTRACT This Contract, effective the last date signed below, is by and between the State of Florida, Department of Management Services ( "Department "), an agency of the State of Florida with offices at 4050 Esplanade Way, Tallahassee, Florida 32399 -0950, and the entity identified below as Contractor ( "Contractor "). The Contractor responded to the Department's Invitation to Bid ( "ITB ") No. 03- 760 - 000 -S; Construction, Industrial, Agricultural, & Lawn Equipment. The Department has determined to accept select Contractor's offers and to enter into this Contract in accordance with the requirements, specifications, terms, and conditions of the solicitation. Accordingly, and in consideration of the mutual promises contained in the Contract documents, the Department and the Contractor do hereby enter into this Contract, which is a state term contract authorized by section 287.042(2)(a) of the Florida Statutes (2001). The term of the Contract begins on the Contract Formation Date, per Section 2.17, and expires June 30, 2012. The Contract consists of the following documents, which, in case of conflict, shall have priority in the order listed, and which are hereby incorporated as if fully set forth: • Any written Amendments to the Contract • Section 6.0, Technical Specifications • Section 5.0, Special Conditions • Section 4.0, General Contract Conditions [PUR1000 (10106)] • This document, Section 7.5, Contract Signature Page • Section 7. 1, Price Sheet & Ordering Instructions • Section 3.0, Special Instructions to Respondents • Section 2.0, General Instructions to Respondents [PUR1001 (10106)] • Any Purchase Order under the Contract • Contractor's Response State of Florida, Date Department of Management Services By: Linda H. South, Secretary Contractor Name: (Seal) Street Address or P.O. Box: City, State, Zip: By: Date Its' (Title): Approved as to form and legality by the Department of Management Services, General Counsel's Office: Print Name: Date: 59 7.6 Certification of Drug -Free Workplace Section 287.087 of the Florida Statutes provides that, where identical tie offers are received, one preference shall be given to an offer received from a Respondent that certifies it has implemented a drug -free workforce program. Please sign below and return this form to certify that your business has a drug -free workplace program. 1) Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition. 2) Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug -free workplace, any available drug counseling, rehabilitation and employee assistance programs and the penalties that may be imposed upon employees for drug abuse violations. 3) Give each employee engaged in providing the commodities or contractual services that are under the solicitation a copy of the statement specified in Subsection (1). 4) In the statement specified in Subsection (1), notify the employees, as a condition of working on the commodities or contractual services that are under the solicitation, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of Chapter 893 or of any controlled substance law of the United States or any State, for a violation occurring in the workplace no later than five (5) days after such conviction. 5) Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community by any employee who is so convicted. 6) Make a good faith effort to continue to maintain a drug -free workplace through implementation of this section. As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements. False statements are punishable at law. DATE ORGANIZATION NAME: -M Authorized Signature .e Print Name and Title CITY OF PALM BEACH GARDENS CITY COUNCIL Agenda Cover Memorandum Meeting Date: December 2, 2010 Resolution 92, 2010 Subject/Agenda Item: Adopting Identity Theft Prevention Policies for Fire - Rescue. [X] Recommendation to APPROVE [ ] Recommendation to DENY Reviewed by: Origimating Dept.: Costs: $ 0 Council Action: (Total) City Atto [ ]Approved Keith Bryer Division Chief, EMS R. ax ohman $ [ ]Approved w/ Current FY conditions [ ] Denied Finance Dir Funding Source: [ ] Continued to: Advertised: Allan Owens Date: [ ] Operating Attachments: • Resolution 92, 2010 [ ] Other - Palm Beach Gardens Fire - Rescue Identity Theft Prevention Program Paper: Submitted by: [ x ] Not Required Department Director Pete Bergel, Chief Affected parties [ ] Notified Budget Acct. #: [ ] None Approved by: City M r Ronal M. r rns [ x ] Not required Meeting Date: December 2, 2010 Resolution 92 2010 Page 2 of 2 BACKGROUND: The Fair and Accurate Credit Transactions Act of 2003 requires all creditors with covered accounts to implement an identity theft prevention program by December 31, 2010. The City of Palm Beach Gardens' Fire Rescue Department falls within the definition of a creditor with a covered account. The City is required to comply with said requirements and therefore has prepared an Identity Theft Prevention Program that complies with the requirements of the Fair and Accurate Credit Transactions Act of 2003. STAFF RECOMMENDATION: Staff recommends approval of Resolution 92, 2010 as presented. 1 2 3 RESOLUTION 92, 2010 4 5 6 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM 7 BEACH GARDENS, FLORIDA APPROVING AN "IDENTITY THEFT 8 PREVENTION PROGRAM" IN ACCORDANCE WITH THE 9 REQUIREMENTS OF THE FAIR AND ACCURATE CREDIT 10 TRANSACTIONS ACT OF 2003; PROVIDING AN EFFECTIVE 11 DATE; AND FOR OTHER PURPOSES. 12 13 14 WHEREAS, the Fair and Accurate Credit Transactions Act of 2003 requires all 15 creditors with covered accounts to implement an identity theft prevention program by 16 December 31, 2010; and 17 18 WHEREAS, the City of Palm Beach Gardens' Fire Rescue Department falls 19 within the definition of a creditor with a covered account; and 20 21 WHEREAS, the City desires to comply with the aforesaid requirements and in 22 furtherance thereof has prepared an identity theft prevention program that complies with 23 the requirements of the Fair and Accurate Credit Transactions Act of 2003; and 24 25 WHEREAS, the City Council deems approval of this Resolution to be in the best 26 interests of the health, safety, and welfare of the residents and citizens of the City of 27 Palm Beach Gardens and the public at large. 28 29 30 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 31 OF PALM BEACH GARDENS, FLORIDA, AS FOLLOWS: 32 33 SECTION 1. The foregoing recitals are hereby affirmed and ratified. 34 35 SECTION 2. The City Council of the City of Palm Beach Gardens, Florida hereby 36 approves the "Identity Theft Prevention Program ", attached hereto as Exhibit "A ". 37 38 SECTION 3. This Resolution shall become effective immediately upon adoption. 39 40 41 42 43 44 45 46 47 Page 1 of 2 1 PASSED AND ADOPTED this 2 3 4 5 6 7 8 9 10 ATTEST: 11 12 13 BY: 14 Patricia Snider, CMC, City Clerk 15 16 17 APPROVED AS TO FORM 18 AND LEGAL SUFFICIENCY 19 20 21 BY: 22 R. Max Lohman, City Attorney 23 24 25 26 27 VOTE: 28 29 MAYOR LEVY 30 31 VICE MAYOR PREMUROSO 32 33 COUNCILMEMBER RUSSO 34 35 COUNCILMEMBER JABLIN 36 37 COUNCILMEMBER TINSLEY 38 39 40 41 42 43 44 4485 46 Resolution 92, 2010 day of , 2010. CITY OF PALM BEACH GARDENS, FLORIDA David Levy, Mayor AYE NAY ABSENT G:\aftorney_ share \RESOLUTIONS\2010 \Resolution 92 2010 Identity Theft Prevention Program - red flag.doc Page 2 of 2 Resolution 92, 2010 EXHIBIT "A" Palm Beach Gardens Fire- Rescue IDENTITY THEFT PREVENTION PROGRAM PURPOSE Palm Beach Gardens Fire - Rescue ( PBGFR) is committed to providing all aspects of our service and conducting our business operations in compliance with all applicable laws and regulations. This policy sets forth our commitment to compliance with those standards established by the Federal Trade Commission (FTC) under the Identity Theft Red Flags and Address Discrepancies under the Fair and Accurate Credit Transaction Act of 2003 ( "the Red Flag Rules ") at 16 C.F.R. §681.2, regarding the establishment of a written Identity Theft Prevention Program ( "Program ") that is designed to detect, prevent, and mitigate identity theft in connection with the opening of a covered account or any existing covered account. SCOPE This Program contains policies and procedures designed to identify, detect, and respond appropriately to "Red Flags" for identity theft. It also contains policies and procedures for the periodic identification of covered accounts and for the general administration of the Program. This Program addresses our general approach to compliance with the Red Flag Rules. As a "creditor" with "covered accounts" under the Red Flag Rules, PBGFR is required to: • Periodically identify covered accounts; • Establish a written Identity Theft Prevention Program; and • Administer the Identity Theft Prevention Program. DEFINITIONS Account means a continuing relationship established by a person or business with PBGFR to obtain EMS services and includes an extension of credit, such as the purchases or services involving a deferred payment. Covered Account means an account that PBGFR offers or maintains, primarily for EMS services, involves or is designed to permit multiple payments or transactions; and /or any other account that PBGFR offers or maintains for which there is a reasonably foreseeable risk to individuals or to the safety and soundness of PBGFR from identity theft, including financial, operational, compliance, reputation, or litigation risks. Identity Theft means a fraud committed or attempted use of the identifying information of another person without authority. Identifying Information means any name or number that may be used, alone or in conjunction with any other information, to identify a specific person, including any: ■ Name, social security number, date of birth, official state or government issued driver's license or identification number, alien registration number, government passport number, or employer or taxpayer identification number; ■ Unique electronic identification number, address, or routing code; ■ Telecommunication identifying information or access device (as those terms are defined in 18 U.S.C. §1029(e)); ■ Medicare number; and ■ Health care claim number. Program means this written Identity Theft Prevention Program developed and implemented by PBGFR. Red Flags means a pattern, practice, or specific activity that indicates the possible existence of identity theft. Service Provider means a person or business that provides a service directly to the PBGFR and includes third -party billing companies and other organizations that perform services in connection with PBGFR covered accounts. PROCEDURE 1. Identify Covered Accounts (a) Palm Beach Gardens Fire- Rescue will annually determine whether it offers or maintains covered accounts and shall document that determination. (b) As part of this annual identification of covered accounts, PBGFR shall conduct an annual risk assessment of its accounts to determine whether it offers or maintains accounts that carry a reasonably foreseeable risk to patients or to the safety and soundness of PBGFR from identity theft, including financial, operational, compliance, reputation, or litigation risks. In determining whether PBGFR offers or maintains such accounts, PBGFR will conduct an annual risk assessment that takes into consideration: ■ The methods it uses to open its accounts; ■ The methods it uses to access its accounts; and ■ Its previous experiences with identity theft. 2. Identify Red Flags (a) Once PBGFR has identified its covered accounts, it shall identify Red Flags for those accounts. This shall be conducted on an annual basis in conjunction with PBGFR identification of covered accounts. PBGFR will also identify Red Flags as they arise, and will incorporate them into this Program. (b) PBGFR shall consider the following factors in identifying relevant Red Flags for covered accounts, as appropriate: ■ The types of covered accounts it offers or maintains; ■ The methods it provides to open its covered accounts; ■ The methods it provides to access its covered accounts; and ■ Any incidents of identity theft that PBGFR has experienced. (c) PBGFR shall also consider the examples of Red Flags listed in Supplement A to Appendix A to 16 C.F.R. Part 681. The Program shall include relevant Red Flags from the following categories, as appropriate: ■ Alerts, notifications, or other warnings received from consumer report agencies or service providers, such as fraud detection services; ■ The presentation of suspicious documents; ■ The presentation of suspicious personal identifying information, such as a suspicious address change; ■ The unusual use of or other suspicious address change; and ■ Notice from customers, victims of identity theft, law enforcement authorities, or other persons regarding possible identity theft in connection with covered accounts. (d) PBGFR shall also incorporate Red Flags from sources such as: ■ New and changing risks that PBGFR has identified; and ■ Any applicable supervisory guidance from the FTC or other appropriate sources. (e) The following are Red Flags identified for PBGFR covered accounts as of the most recent update to this Program: ■ Patterns of activity on payment accounts that are inconsistent with prior history; ■ Increases in the volume of inquiries to an account; ■ The presentation of information that is inconsistent with other sources, e.g., the address, date of birth, or social security number listed for the patient does not match the address given or is inconsistent with other identifying information provided by the patient; ■ Personal identifying information is identified by third -party sources as having been associated with known fraudulent activity; ■ Personal identifying information of a type commonly associated with fraudulent activity (e.g., fictitious address, use of mail drop, or phone number that is invalid or associated only with a pager or answering service); ■ The social security number provided by the patient is a duplicate of that of other patients; ■ The address or telephone numbers given are the same or similar to those of other patients, particularly recent ones; ■ Attempts to access an account by persons who cannot provide authenticating information; ■ Mail correspondence sent to the provided address is returned and mail is returned despite continued activity in the account; ■ Notification of an unauthorized transaction by the patient; ■ Notification by the patient, a law enforcement authority, or other person that it has opened a fraudulent account; ■ A complaint or question from a patient based on the patient's receipt of: 1. A bill for another individual; 2. A bill for a service that the patient denies receiving; 3. A bill from a health care provider that the patient never utilized; 4. A notice of insurance benefits (or Explanation of Benefits) for health services never received; or 5. A patient or insurance company report that coverage for legitimate healthcare service is denied because insurance benefits have been depleted or a lifetime cap has been reached. ■ A complaint or question from a patient about information added to a credit report by a health care provider or insurer; ■ A dispute of a bill by a patient who claims to be the victim of any type of identity theft; ■ A patient who has an insurance number but never produces an insurance card or other physical documentation of insurance; ■ A security breach; ■ Unauthorized access to a covered account by personnel; ■ Unauthorized downloading of patient files; ■ Loss or theft of unencrypted data; ■ Inappropriate access of a covered account; ■ Theft of a password; ■ The presentation of an insurance card or form of identification that is clearly altered; and ■ Lost, stolen, or tampered facility equipment. 3. Detect Red Flags PBGFR shall adopt reasonable policies and procedures to address the detection of Red Flags in connection with the opening of covered accounts and existing covered accounts, such as by: ■ Obtaining identifying information about and verifying the identity of a person opening a covered account; and ■ Authenticating patients by verifying the validity of change of address requests. The following procedures have been adopted by PBGFR to address the detection of Red Flags as of the most recent update to this Program: ■ Suspicious Documents at the Time of Transport: PBGFR personnel shall be on the alert for patients who present suspicious documents such as an insurance card or form of identification that appears to have been altered or does not match other information about the patient. Whenever possible, the crew shall attempt to verify the identity of the patient with someone who knows the patient and /or someone who has rendered care to the patient. Personnel shall not delay the provision of care when verifying this information and should obtain this information after the transport when it could delay the provision of care. ■ ID Verification Before Discussing Patient Account Information or Change of Address: Before discussing any information related to a covered account with any individual or making a change to address information in a covered account, PBGFR personnel shall sufficiently ascertain the identity of the individual. 1. If a patient or appropriate representative makes a telephone inquiry or request regarding a patient account, PBGFR personnel shall require the patient or appropriate representative of the patient to verify the date of birth, social security number (or at least the last 4 digits), and address of the patient to whom the account pertains. 2. If the patient or appropriate representative of the patient presents in person to the business office of PBGFR, s /he shall be required to provide a valid government issued photo ID in addition to the date of birth, social security number (or last 4 digits), and address of the patient to whom the account pertains. 3. If the patient or appropriate representative of the patient is unable to provide the necessary information to verify the identity of the patient, PBGFR staff shall alert the Division Chief who in turn will notify the Department's Billing Agency. Until the identity of the patient can be verified, access or honoring the address change request will be denied. Under the HIPAA Privacy and Security Rules, PBGFR is required to implement policies and procedures regarding the security of protected health information and to implement administrative, physical, and technical safeguards to protect electronic protected health information. The following policies and procedures from PBGFR HIPAA compliance program serve the dual purpose of detecting identity theft in connection with the opening of and existing covered accounts at PBGFR, and they are hereby incorporated in this Program by reference: PBGFR HIPPA POLICY 4. Respond to Red Flags PBGFR will respond to Red Flags of which it becomes aware in a manner commensurate with the degree of risk posed by the Red Flag. In determining an appropriate response, PBGFR will consider aggravating factors that may heighten the risk of identity theft. For example, notice to PBGFR that a patient has provided information to someone fraudulently claiming to represent PBGFR may suggest that identity theft is more likely. PBGFR shall assess whether the Red Flag detected poses a reasonably foreseeable risk of identity theft, and if it does, respond appropriately. If PBGFR determines that the Red Flag does not pose a reasonably foreseeable risk of identity theft, it shall have a reasonable basis for choosing not to respond to the Red Flag. If any personnel at PBGFR believe identity theft has occurred or may be occurring, s /he shall immediately notify a supervisor. The supervisor will contact the EMS Division Chief who will determine the appropriate response. Appropriate responses may include the following: ■ Monitoring a covered account for evidence of identity theft: 1. Contacting the patient and the Department's Billing Agency; 2. Reopening a covered account with a new account number; 3. Notifying law enforcement; and /or 4. Determining that no response is warranted under the particular circumstances. Patient Notification: If there is a confirmed incident of identity theft or attempted identity theft, PBGFR will notify the patient after consultation with law enforcement about the timing and the content of such notification (to ensure notification does not impede a law enforcement investigation) via certified mail. Victims of identity theft will be encouraged to cooperate with law enforcement in identifying and prosecuting the suspected identity thief and will be encouraged to complete the FTC Identity Theft Affidavit located on the FTC Website at: www.ftc.gov Investigation of Suspected Identity Theft: If an individual claims to be a victim of identity theft, PBGFR will investigate the claim. The following guidelines apply: ■ The individual will be instructed to file a police report for identity theft. ■ The individual will be instructed to complete the ID Theft Affidavit developed by the FTC, including supporting documentation or an ID theft affidavit recognized under state law. Both forms can be found on the FTC Website at: www.ftc.gov. Once completed, these forms shall be turned over to PBG Police Department. ■ The individual will be requested to cooperate with comparing his or her personal information with information in PBGFR records. ■ If following an investigation it appears that the individual has been a victim of identity theft, PBGFR will take the following actions: 1. Notify the Department's Billing Agency to cease collection on open accounts that resulted from identity theft. If the accounts had been referred to collection agencies or attorneys, the collection agencies /attorneys will be instructed to cease collection activity. 2. Cooperate with any law enforcement investigation relating to the identity theft. 3. If an insurance company, government program or other payor has made payment on the account, the provider will notify the payor and seek instructions to refund the amount paid. 4. If an adverse report had been made to a consumer reporting agency, the provider will notify the agency that the account was not the responsibility of the individual. If following an investigation it does not appear that the individual has been a victim of identity theft, PBGFR or the collection agency will give written notice to the individual that he or she is responsible for payment of the bill. The notice will state the basis for determining that the person claiming to be a victim of identity theft was in fact the patient. Amendment of Records: Patient medical records and payment records must be corrected when identity theft has occurred. This is necessary to ensure that inaccurate health information is not inadvertently relied upon in treating a patient and that a patient or a third -party payer is not billed for services the patient did not receive. Patient records will be corrected in consultation with the patient and the patient's treating health care provider(s) and in a manner consistent with the PBGFR HIPAA policy on amendments to medical records. Disclosure/Unauthorized Access to Unencrypted Data: If there is a disclosure of or an unauthorized access to, unencrypted computerized data containing a person's first name or first initial and last name and (1) a social security number, (2) driver's license number, or (3) financial account number (including a credit or debit card number), state law governing notification of patients will be followed. The Presentation of Suspicious Documents at the Time of Transport: When a patient presents a suspicious document such as an insurance card or form of identification that is clearly altered or does not match other information about the patient, ambulance personnel shall: 1. Note the nature of the incident and circumstances surrounding the incident on a Red Flag Incident Report. 2. If possible, confirm patient's identity from other sources such as individuals who know or have treated the patient. 3. Notify the individual in charge of Red Flag Rules compliance as soon as possible after the transport about the incident and the circumstances surrounding the incident. 4. Notification and investigation of the incident (above) shall be followed. S. Update the Program PBGFR shall update this Program (including identifying Red Flags determined to be relevant) annually. The update shall reflect changes in risks of identity theft to patients or to the safety and soundness of PBGFR information. The review and update will be based on factors such as: ■ The experiences of PBGFR with identity theft; ■ Changes in methods of identity theft; and ■ Changes in methods to detect, prevent, and mitigate identity theft. 6. Administer the Program Program Oversight: The EMS Division Chief shall be designated as the Department's Red Flag Rules Compliance Officer and shall be responsible for the oversight, development, implementation, and administration of the Program. T. Train Employees PBGFR will conduct a general training session for all personnel to provide them with a general overview of this Program. All new personnel shall undergo such training during their orientation process. Documentation of training, including copies of all rosters and sign -in sheets showing the training dates and the names of attendees, shall be maintained for at least four (4) years. All staff responsible for the administration of the Program and who regularly deal with covered accounts should be trained on an annual basis. 8. Oversee Service Provider Arrangements If PBGFR engages a third party to perform an activity in connection with one (1) or more covered accounts (e.g., billing companies, collection agencies), PBGFR will: ■ Review the third party's policies for preventing, detecting, and mitigating identity theft and determine if those policies are acceptable to PBGFR; or ■ Require the third party to comply with the applicable terms of this Program through contract or agreement. (The remainder of this page intentionally left blank) CITY OF PALM BEACH GARDENS Fire - Rescue Department 4425 Burns Road — Palm Beach Gardens, FL 33410 [Date] Via Certified Mail Return Receipt Requested [Patient Name] [Patient Address] Re: Suspected Identity Theft Dear This letter addresses the unauthorized use of your name and other personal information at Palm Beach Gardens Fire - Rescue on [date]. [Explain factual situation and describe compromise of information in detail (e.g., how it happened, information disclosed, what actions have been taken to remedy situation, etc.)]. We have reported this incident to Palm Beach Gardens Police Department and have placed an alert on your account in an effort to prevent further misuse of your identity. Identity theft is very serious because it can cause severe financial harm and take a long time to correct. Medical identity theft can lead to inappropriate medical care when incorrect information is included in a patient's medical record. If you believe you are the victim of medical identity theft, you should, in addition to the measures outlined below, ask to review and make appropriate corrections to your medical record so that you receive appropriate care. For your health and safety, it is very important that your medical records do not contain information about another person. We request your assistance in ensuring that our records about you are correct. We recommend that you carefully monitor explanations of benefits (EOBs) or other remittance advice or account statements received from your health insurer to determine if any other person has used your identity to obtain health care. If you receive an EOB or bill for health care services you believe you did not receive, immediately contact your insurer and the health care provider who furnished the services We also recommend that you place a fraud alert on your credit file. A fraud alert tells creditors to contact you and verify your identity before they open any new accounts or change existing accounts. Please contact one of the three major credit bureaus. Once a credit bureau confirms your fraud alert, the others are notified to place fraud alerts. The numbers for the credit bureaus are: Equifax: 1- 800 - 685 -1111 Experian: 1- 888 - 397 -3742 TransUnionCorp: 1- 800 -680 -7289 If you find suspicious activity on your credit reports or have reason to believe your information is being misused, immediately notify the credit bureaus. If you believe an unauthorized account has been opened in your name, immediately contact the financial institution that holds the account. You should also file a police report of identity theft. Get a copy of the police report. You may need to give copies of the police report to creditors to clear up your records. Creditors want the information it contains to absolve you of the fraudulent debts. You should also file a complaint with the FTC at www.ftc.gov /idtheft/ or 1- 877 -ID -THEFT (877- 438 - 4338). Your complaint will be added to the FTC's Identity Theft Data Clearinghouse where it will be accessible to law enforcers for their investigations. We encourage you to report any helpful information to Palm Beach Gardens Police Department. We also encourage you to alert other area health care providers that your identifying information is being used in a fraudulent manner. If there is anything Palm Beach Gardens Fire- Rescue can do to assist you, please call me at 561.799.4200. Sincerely, Keith Bryer, Division Chief EMS Palm Beach Gardens Fire- Rescue Red Flag Detection and Response "Tip Sheet" For Prevention of Potential Identity Theft Potential Red Flags The following are examples of Red Flags that may occur in connection with covered accounts at Palm Beach Gardens Fire- Rescue but it is not an exhaustive list. Red Flags are activities that could indicate the possible existence of identity theft. When you discover one of these potential red flags, report your observations to your supervisor and document those observations on a Red Flag Rules Incident Report. Identify Theft "Tips" for Ambulance Field Personnel Watch for the following: • Information Does Not Match What The Patient Tells You. At the time of transport, the patient presents identifying information that is inconsistent with other sources, e.g., the address, date of birth, or social security number listed for the patient does not match the address given to you or is inconsistent with other identifying information provided by the patient. • Identity Documents That Look Altered. At the time of transport, if a patient presents suspicious documents such as an insurance card or form of identification that appears to be altered, you should alert your supervisor and those who receive the patient. • Patient's Physical Description Does Not Fit What You Were Told. The patient's physical description does not meet the description of the patient during past patient transports, or is not consistent with information you received from other reliable sources, such as other crew members or hospital staff. • Patient Name Band Inconsistent With What Patient Tells You. Check the patient's name band in all transports from health care facilities. If the patient says he is someone other than the name on the wristband, ask the nursing staff for verification. • Keep All Clipboards And Laptops Secure. Do not let clipboards or laptop devices out of your sight. Others may be able to obtain identity information from these things and use that information. The clipboards and laptop devices could easily be stolen if not kept in your direct custody. Missing Wallets, Purses, And Other Personal Effects. Report missing wallets and purses and other personal effects of those who were on the scene or in the patient's room when the loss was discovered. Notify law enforcement where appropriate. Identity Theft "Tips" for Billing Personnel • Others Tell You The Identity Has Been Associated With Fraudulent Activity. The presentation of personal identifying information is identified by third - party sources as having been associated with known fraudulent activity. • Persons Accessing Accounts Cannot Provide Authenticating Information. Before discussing account information with any individual or making any changes to account information, you should obtain sufficient information from the individual to verify their identity. If the inquiry is over the phone or through other electronic means, the individual should be asked to provide the date of birth, address, and last four (4) digits of the social security number of the patient to whom the account pertains. Additionally, if the individual shows up in person, you should ask him/her to present some sort of government- issued photo identification such as a driver's license. If the individual making the inquiry is not the patient to whom the account pertains, ask for verification from the person that they have permission to access the account before you grant them access to an account. If you are unsatisfied that they have authorization, you should contact the patient and notify a supervisor. • Law Enforcement Alerts You. Law enforcement officials tell you that a specific person has opened a fraudulent account. • You Receive Unusual Complaints About An Account. A complaint or question from a patient is received that is based on the patient's receipt of: (1) a bill for another individual; (2) a bill for a service that the patient denies receiving; or (3) a notice of insurance benefits (or Explanation of Benefits) for health services never received. • There Is A Sudden Or Unexplained Loss Of Electronic Data. If you experience an unusual loss of data, you should immediately notify your supervisor and protect all devices from additional potential loss of data to the fullest extent possible. CITY OF PALM BEACH GARDENS CITY COUNCIL Agenda Cover Memorandum Meeting Date: December 2, 2010 PPUD- 09 -12- 000023 Ordinance 24, 1010 Resolution 75, 2010 SUBJECT /AGENDA ITEM Ordinance 24, 2010 and Resolution 75, 2010: AT &T Planned Unit Development (PUD) Consideration for Approval: A request by 3005 Northlake Boulevard, LLC for a rezoning of a 0.93 -acre parcel, located on the north side of Northlake Boulevard approximately 500 feet east of North Congress Avenue from General Commercial (CG1) to General Commercial (CG1) with an overlay of Planned Unit Development (PUD). [X] Recommendation to APPROVE with three (3) waivers ( ] Recommendation to DENY Reviewed by: Cit t W. Max fohman, Esq. Deve ment Compliance: Bahareh K. Wolfs, AICP D?aig or f Planning and Z� M. Wong, AICP By City, Manage Ro�al M. Ferris U t Planning and Zoning: Resource Manager: Allyson Black Project Manager: L'1/ " Kathryn Wilson [X] Quasi — Judicial [ ] Legislative [X] Public Hearing Paper: Palm Beach Post Date: 11/03/2010 and 11/12/2010 [X] Required [ ] Not Required Affected Parties: [X] Notified [ ] Not Required Finance: Finance Administrator: N/A Allan Owens Accountant: Sarah Varga Fees Paid: [X] Yes Budget Acct. #: N/A City [ ] Approval [ J Approval w/ conditions [ ] Denial [ ] Continued to: Attachments: •: Location Map •: Project Narrative :• Ordinance 24, 2010 :• Resolution 75, 2010 :• Reduced Plans :• Sign Exhibit Meeting Date. November 18, 2010 Ordinance 24, 2010 and Resolution 75, 2010 Page 2 of 7 BACKGROUND The subject parcel received site plan approval (SP- 97 -08) from the Site Plan Appearance and Review Committee on January 12, 1999. Commonly known as the Costakos building, the building was formerly occupied by Island Cleaners. The subject parcel was platted in 2001 as the "Costakos Plat" via Resolution 163, 2001. On October 26, 2009, the parcel received Administrative approval for site and building modifications to accommodate a new tenant, AT &T. The approval allowed for updated building colors, addition of awnings, new signage, and landscaping improvements. The improvements associated with the Administrative approval have been installed, which considerably enhanced the site, consistent with the City's Land Development Regulations (LDRs), and the requirements of the Northlake Boulevard Overlay. The subject petition is a request to rezone the parcel to a Planned Unit Development (PUD) overlay with an underlying zoning designation of General Commercial (CG1), add landscaping material, provide for a monument sign, and request three (3) waivers. No changes to the existing building are proposed. LAND USE & ZONING The subject site has a Future Land Use designation of Commercial (C) with a zoning designation of General Commercial (CG1). Table 1. Surroundina Zonina & Land Use Desianations EXISTING USE ZONING Subject Property AT &T CG1 C North Hilltop Park CG1 C South Northlake Square East PUD /CG1 C East Residential HR -12 (North half) Jiffy Lube (PB County) Commercial CH /8 South half) West Northlake Congress PUD /CG1 C CONCURRENCY No additional concurrency approval is requested with the subject petition. Meeting Date: November 18, 2010 Ordinance 24, 2010 and Resolution 75, 2010 Page 3 of 7 PROJECT DETAILS Site Details and Access The subject site is located on the north side of Northlake Boulevard just east of the intersection of Northlake Boulevard and Congress Avenue, and is approximately 0.93 acres (see attached Location Map). The subject site has three (3) existing vehicular access points; One from Northlake Boulevard, and two (2) cross access points that run to Congress Avenue. The cross access is also used by the two (2) adjacent uses (Pollo Tropical and Walgreens). Northlake Boulevard Overlay Zone The subject parcel is within the Northlake Boulevard Overlay Zone (NBOZ). The NBOZ was established to implement the objectives of the Northlake Boulevard Corridor Conceptual Streetscape Plan. The NBOZ was adopted as a result of an agreement between the City of Palm Beach Gardens, the Village of North Palm Beach, Town of Lake Park and Palm Beach County. This agreement was established to improve the corridor by unifying design and development themes, improving signage along the corridor and redevelopment to improve the areas economic conditions. The subject project has been designed to meet the architectural elements (building style, color palette, height, entryway and other fapade features) set forth in the overlay. Parking Additional parking is not required for the subject request. Signage The Applicant is proposing a monument sign to be located at the southern portion of the property along Northlake Boulevard (see attached Sign Exhibit). Because the monument sign regulations for the NBOZ are more restrictive than the City's sign code, the NBOZ regulations were applied to the proposed monument sign. The sign requires approval of two (2) waivers: One for the minimum parcel width, and a second for the interior property line setback (see Waiver Requests section). Landscaping/Bufferinq The City's code requires that all approved PUD's landscape, irrigate, and maintain improvements within adjacent and /or contiguous public rights -of -way (Section 78 -324, Roadway Beautification Plan). The Applicant has supplied the necessary landscaping and irrigation for the right -of -way areas. The existing median is part of the Applicant's maintenance responsibility, and does not contain landscaping material due to its narrow width, and recent reconfiguration to include additional turn lanes. Conditions of approval are proposed to ensure all maintenance obligations are enforceable. The Applicant is proposing to add a landscaped area at the northwest corner of the site Meeting Date: November 18, 2010 Ordinance 24, 2010 and Resolution 75, 2010 Page 4 of 7 to create a butterfly garden. The additional plant material exceeds the code requirements and will create a place for employees and /or pedestrians to gather and enjoy. Drainage No changes to the existing drainage are proposed with this petition. Waiver Requests The Applicant is requesting three (3) waivers with this petition. 1) The Applicant is requesting a waiver from City Code Section 78- 154(g)(7), Table 14, Minimum PUD Development Size, to allow a 0.93 acre PUD site. The subject site is approximately 3,000 square feet short of the one (1) acre size requirement. The site received plat approval in 2001, and therefore was an existing condition prior to the Applicant's purchasing of the site. The PUD zoning encourages infill and redevelopment opportunities to occur on the subject site. Staff is in support of the requested waiver. 2) The Applicant is requesting a waiver from City Code Section 78 -229, Table 5 -6, Ground /Monument, to allow a monument sign identifying the subject parcel. The code requires that a parcel possess 300 linear feet of street frontage to contain a monument sign. Additionally, the sign is required to be set 50 feet from interior property lines. The subject parcel has 100 linear feet of street frontage on Northlake Boulevard. The sign is proposed to be about two (2) feet wide, and be located at the middle of the parcel, providing a 50 -foot setback and 48 -foot setback on either side of the sign. The monument sign will assist vehicular traffic in identifying the site's principal entrance from Northlake Boulevard. The site's current wall sign is difficult to view from a westbound direction on Northlake Boulevard due to existing trees on the Jiffy Lube site. In addition, there are a number of other sites along Northlake Boulevard with similar site conditions that have monument signs, such as Regions Bank and McDonalds. The proposed monument sign will assist in giving visibility to the subject site. Due to the above justification and additional landscape material Code Section Requirement Proposal Waiver Staff Support & Discussion 78- 154(g)(7), Table Minimum parcel 0.93 acres 0.07 Approval (1) 14, Min. PUD size size of 1 acre acres ` 78 -229, Table 5 -6, 1 ground sign / 300 1 ground sign / 100 200 If Approval (2) Ground /Monument If of street frontage If of street frontage 78 -229, Table 5 -6, 50' from interior 48' from interior Ground /Monument prop. lines prop. lines 2 feet Approval (2) 1) The Applicant is requesting a waiver from City Code Section 78- 154(g)(7), Table 14, Minimum PUD Development Size, to allow a 0.93 acre PUD site. The subject site is approximately 3,000 square feet short of the one (1) acre size requirement. The site received plat approval in 2001, and therefore was an existing condition prior to the Applicant's purchasing of the site. The PUD zoning encourages infill and redevelopment opportunities to occur on the subject site. Staff is in support of the requested waiver. 2) The Applicant is requesting a waiver from City Code Section 78 -229, Table 5 -6, Ground /Monument, to allow a monument sign identifying the subject parcel. The code requires that a parcel possess 300 linear feet of street frontage to contain a monument sign. Additionally, the sign is required to be set 50 feet from interior property lines. The subject parcel has 100 linear feet of street frontage on Northlake Boulevard. The sign is proposed to be about two (2) feet wide, and be located at the middle of the parcel, providing a 50 -foot setback and 48 -foot setback on either side of the sign. The monument sign will assist vehicular traffic in identifying the site's principal entrance from Northlake Boulevard. The site's current wall sign is difficult to view from a westbound direction on Northlake Boulevard due to existing trees on the Jiffy Lube site. In addition, there are a number of other sites along Northlake Boulevard with similar site conditions that have monument signs, such as Regions Bank and McDonalds. The proposed monument sign will assist in giving visibility to the subject site. Due to the above justification and additional landscape material Meeting Date: November 18, 2010 Ordinance 24, 2010 and Resolution 75, 2010 Page 5 of 7 provided on site, staff is in support of the requested waiver. CONSISTENCY WITH COMPREHENSIVE PLAN It is staff's professional opinion that the proposed development is consistent with the overall intent of the goals, objectives and policies of the City's Comprehensive Plan. An example of some of the goals, objectives and policies, which are consistent with and furthered by the proposed PUD, are listed below. Future Land Use Element Goal 1.1: Continue to ensure a high quality living environment through a mixture of land uses that will maximize Palm Beach Gardens' Natural and Manmade Resources while minimizing any threat to the health, safety, and welfare of the City's citizens that is caused by incompatible land uses and environmental degradation, by maintaining compatible land uses, which consider the intensities and densities of land use activities, their relationship to surrounding properties and the proper transition of land uses. Objective 1.1.3: Maintain land development regulations to manage future growth and development in a manner that provides needed facilities and services, protects environmental resources, and encourages infill and redevelopment of the eastern portion of the City. Policy 1.1.3.4: the City shall maintain land development regulations which provide for a Planned Unit Development (PUD) technique which shall implement the following concepts: a. The intent of the Planned Unit Development (PUD) is to ensure the desired character of the community is furthered or enhanced on development sites within the City, particularly on sites where the development proposed is rather intense. Master plans for Planned Unit Developments include, at a minimum, site plans showing all local roads and landscaping plans. Supporting documentation is also to be included which indicates, at a minimum, development phasing and a list of permitted uses for commercial and industrial PUDs. The site is consistent with the architectural elements of the NBOZ, and the desired character of the Palm Beach Gardens community. Additionally, the subject site is located within an established commercial corridor, which satisfies the City's objective to encourage infill and redevelopment of properties within the eastern portion of the City, and discourage urban sprawl. Meeting Date: November 18, 2010 Ordinance 24, 2010 and Resolution 75, 2010 Page 6 of 7 Objective 1.1.4: Maintain land development regulations containing standards and provisions which encourage the elimination or reduction of uses inconsistent with the City's character and future land uses. Policy 1.1.4.1: Expansion or Replacement of Land uses which are inconsistent with the Future Land Use Plan shall be prohibited. The retail use is consistent with the zoning (CG1) and future land use (C) designations of the subject site. Goal 1.2: Encourage development or redevelopment activities, while promoting strong sense of community, and consistent quality of design; and do not threaten existing neighborhood integrity and historic and environmental resources. Objective 1.2.4: Direct Future growth, development and redevelopment to areas as depicted on the Future Land Use Map, consistent with: sound planning principles; minimal natural limitations; the goals, objectives, and policies contained within this Comprehensive Plan; and the desired community character. The Future Land Use Map has designated the subject site as Commercial (C). The site has been designed with sound planning principles, which minimize any impacts on the surrounding area. By utilizing a previously occupied site, the Applicant is incorporating the desired redevelopment concepts. The site design also incorporates additional open space (15 percent is required and 52 percent is proposed). COMMENTS FROM THE DEVELOPMENT REVIEW COMMITTEE (DRC) On January 13, 2010, the subject petition was reviewed by the DRC committee. Since this time, staff has been working with the Applicant to address all comments. PLANNING, ZONING, AND APPEALS BOARD On September 14, 2010, the subject petition was reviewed by the PZAB, The Board unanimously recommended approval to the City Council. CITY COUNCIL On October 21, 2010, the subject petition was unanimously approved on first reading by the City Council. Meeting Date: November 18, 2010 Ordinance 24, 2010 and Resolution 75, 2010 Page 7of7 On November 18, 2010, the petition went before the City Council for second reading; however, due to questions raised during public comment regarding the ownership and control of the subject parcel the application was postponed to a date certain of December 2, 2010. The ownership and control issues have been investigated and reviewed, and it appears that the applicant, Robert Deziel, is a member of 3005 Northlake Boulevard, LLC. However, based upon the public comments and claims made at the November 18th Council meeting, the authority of Robert Deziel regarding ownership and control of the subject property remains in question. Staff continues to research this issue and is currently awaiting additional information and clarification from the applicant. Accordingly, prior to the December 2nd meeting, staff will provide an updated memorandum to address the concerns raised at the November 18th meeting as information becomes available. STAFF RECOMMENDATION Staff recommends APPROVAL of Ordinance 24, 2010 and Resolution 75, 2010, contingent upon resolution of all ownership and control issues. LOCATION MAP WG I lAorhla4Fe BoN-�,. AT &T Retail Store 3005 Northlake Boulevard a� Q V) N o .'Na . r k e y Raj � t� AT &T Northlake Retail Project Narrative July 23, 2010 Location, History, and Request urban design kilda STUD I OSY Urban Planning and Design Landscape Architecture Communication Graphics The subject property is 0.93 acres and is located on the north side of Northlake Boulevard, approximately 500 feet east of the intersection of Congress Avenue and Northlake Boulevard. The site was formerly known as the Costakos Commercial property and has been developed with a 3,869 sf, building along with the associated parking and landscaping. The site has a site plan approval (SP -97- 08) which was approved by the Site Plan Appearance and Review Committee on January 12, 1999. For the past several years, the building was not occupied and the property and landscaping had fallen into disrepair. The applicant, 3005 Northlake Boulevard, LLC, recently purchased the site and began the process of improving the site for its new tenant, AT &T Mobility. On October 26, 2009, an Administrative Amendment was granted for this site. The approval allowed for updated building colors, awnings and extensive landscaping improvements. The addition of this new store, which opened recently, assists in the city's efforts to revitalize the Northlake Boulevard corridor and to further improve economic development. The resulting business has brought 20 new jobs to the City of Palm Beach Gardens. Since opening, business at the new AT &T Mobility store has been sluggish. Thus, the applicant is requesting approval to further upgrade and enhance the site's signage in an effort to allow the new business to thrive and prosper. This application request is to allow the approval of a Planned Unit Development Overlay District (PUD), along with requested waivers to allow for a monument sign for the property. The AT &T store has two store entrances (on the north and south elevations) that lead to two separate parking areas accessed by a total of three vehicular entrances to the site. In addition, existing, mature landscaping are located directly east and west of the subject site, blocking the view from Northlake Boulevard. The multiple access points to the site and the building, in addition to the adjacent mature landscaping, require additional signage in order to "facilitate an easy and pleasant communication between people and their environment" as required by the City Sign Code and allow motorists to safely access the site without creating additional U -Turns on Northlake Boulevard. Land Use and Zoning The current zoning of the property is CG1- General Commercial, and the Future Land Use Designation is C- Commercial. This site was recently included in the City initiated correction of inconsistent Future Land Use Plan designations in the last round of Comprehensive Plan Map updates. 0 coo t� �PVM�G1 ti0�4 Please see following a table of adjacent uses and Future Land Use 477 S. Rosemary Avenue Plan designations for the surrounding properties. suite 225 - The Lofts at CltyPlace g West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudioe.com LCC36 Existing Use Zoning Future Land Use Subject Property: Allowed under Proposed 3869 SF Building (AT &T) CG1— General Commercial Commercial To the East: NBOZ (Central Jiffy Lube (Palm Beach Co) CG- Commercial CH /8 - Commercial To the West: District) Pollo Tropical Restaurant (PBG) CG1- General Commercial Commercial To the North: Vacant (Previously Hilltop MHP) CG1— General Commercial Commercial (PBG) 15% min. 52% To the South: Open Space Northlake Blvd./Target Center M1- Industrial Commercial (PBG) Minimum PUD Non - Conforming Lot The current site area does not meet the minimum requirements for a lot in the CG1 District, however, the subdivision of the lot was done prior to the adoption of the current code requirements and is therefore considered a valid non - conformity. The previous subdivision is similar to the smaller commercial areas located east of the site along Northlake Boulevard. Development approvals previously granted meet all applicable code requirements. Traffic Concurrence Based on the traffic concurrency letter dated July 21, 1997, from Assistant City Engineer Tammy Jacobs, this project's traffic concurrency is vested. Site Analysis and Consistency with City Code Site Analysis: Northlake Retail Comparison (per Allowed Allowed under Proposed Compliance Waiver code unless under CG -1 NBOZ (Central Requested otherwise District) noted) Minimum PUD 15% Min 15% min. 52% yes Open Space landscape area Minimum PUD 1 acre 1 acre .93 acre no yes Development Size Minimum Site 1 acre N/A .93 acre Valid Non - Area Conforming lot Minimum None N/A I 3869 sf Yes Building Site I Existing Bldg Area Minimum Lot 100' N/A 100' Yes Width Maximum 35% N/A 10% Yes Building Lot Coverage Maximum Height 36' 55' 20' Yes Limit Setbacks Front 50' 30' 73' Yes (Northlake Blvd) Side 15' 20' 15' Yes Side Facing 40' 40' N/A Yes Street Rear 15' 25' 241' Yes Parking Number 1 sp per 250 sf N/A 21 Yes Required (16) Spaces in 10% allowed N/A 5 Existing, excess of (2 previously required additional approved spaces) Stall 10 feet x 18.5 N/A 10'X 18.5' Yes Dimensions feet Loading Spaces 1 space N/A 1 space Yes Ground Signs Number 1 for 300 feet 1 for 300 feet of 1 with 100' of No Yes Allowed of ROW ROW frontage,+ ROW frontage frontage, + 1 1 per additional per 700 feet of additional 700 ROW frontage feet ROW frontage Setbacks 15 feet -from 5' from ROW 15' from ROW No Yes ROW line line, 50 feet — line, 50' from 50 feet -side side property W property property line line, 48' from Line E property line Dimensions 15 ft 8 ft max height 8 ft in height, Yes length /10 ft in Central Dist., 8 ft in width height Sign face 36 sf maximum, 60 square feet face area maximum Landscaping Points 1,685 N/A 2,851 Yes PROJECT DETAILS Access /Circulation /Pedestrian Connectivity Primary access to the site is through a curb cut on Northlake Boulevard, however, there are secondary access points which provide access to the site from cross - access drives located in front (south) and to the rear (north) of the Walgreens and Pollo Tropical. A driveway provides access from the front of the property to the rear. Pedestrian access from Northlake Blvd. through the site and to the rear parking lot was provided as part of the Site Plan approval in 1999. Architectural Style The architectural style of the building is consistent with the requirements of the Northlake Blvd. Overlay District. There are no proposed modifications to the architectural style or color of the building as part of this application. LiAtine Lighting was provided as part of the site plan approval in 1999. No changes are being proposed to the lighting plan as part of this application. Utilities All utilities are existing and no changes are being proposed as part of this application. The site is currently being serviced by an existing lift station. Parkins The existing parking configuration was approved as part of the 1999 Site Plan approval. The current code requires 1 space per 250 square feet of floor area, or 16 spaces. 21 parking spaces have been provided. One loading space is provided and one handicap space is provided. Sianaee This application includes a request for a monument ground sign for the project because the existing, mature landscaping to the east and west of the subject site block the view of the AT &T building and its signage from Northlake Boulevard. The applicant is requesting a waiver to allow a monument ground sign with less than 300' frontage and a two -foot waiver from the side sign setback of 50 feet. Please see the waiver request below for more details. Drainage Drainage and legal positive outfall for the site was addressed at the time of the Site Plan approval, and is provided through access to the C -17 canal via the Northlake Boulevard /Congress Ave. drainage system. Landscaping and Buffers 4 Considerable improvements to the site's landscaping have been made to the site during the past six months. An additional landscape buffer around the lift station located on the property has been provided. In addition, the building foundation landscaping has been recently upgraded. It should be noted that the existing landscaping plan nearly doubles the amount of required landscaping points (1,685 required, 2,851 provided) and 79% of the landscaping consist of preferred species. The amount of landscaping points has increased with each application to the City. Below is a chart outlining this increase: Approval Landscape Points Required by Landscape Code 1,685 1999 Site Plan Approval 2,440 2009 Administrative Approval 2,851 2010 PUD application (current plan) 3,812 In addition, the landscape plan incorporates water - saving practices, which is encouraged by the City's Comprehensive Plan. The site is using drip irrigation. All invasive species have been removed from the site. Waivers The general purpose and intent for the creation of the Planned Unit Development Overlay District (PUD) was to establish an overlay zoning designation that would "encourage more efficient and creative development or re- development of property; to encourage an economical and efficient arrangement of buildings; to provide maximum opportunity for application of innovative concepts of development in the creation of aesthetically pleasing living, shopping and working environments on properties of adequate size shape and location ... and to ensure that development occurs according to limitations of use, design, density, coverage, and planning as stipulated in an approved development plan." As a result of these concepts, the PUD Overlay District was created as a flexible zoning district that is intended to allow for deviations from the standard Land Development Regulations. Deviations are accommodated through the Waiver approval process. The granting of waivers allows innovative and creative design solutions and alternatives to be realized in a way that is intended to be a benefit to the city. We believe that the design of this project is consistent with previously approved projects in the City, is consistent with the intent and purpose of the Planned Unit Development Overlay District regulations, and is consistent with comparable development standards within other communities. For these reasons we feel the requested waivers should be approved and respectfully request your support. Because of the existing non- conforming status of the property, the maturity of the landscaping around the site, and the position of the building on the property relative to neighboring buildings, it has become necessary for the applicant to request waivers to allow signage to provide clear, safe and effective communication with the public. This application includes a request to allow a ground sign along Northlake Boulevard. The requested sign will assist in the ability of the public to find the site from each direction along Northlake Boulevard. Waivers also have been added to address some existing conditions with the site. The following are the requested waivers. Minimum Site Area for a PUD — Section 78 -154 Section 78 -154 of the City's Land Development Regulations requires the minimum size for a Planned Unit Development of one acre. The subject site is 0.93 acres in size. The subdivision of the subject lot was done prior to the adoption of the current code requirements. The size of the property is consistent with the smaller commercial properties to the east of the subject site along Northlake Boulevard. Development approvals previously granted met all applicable code requirements at the time of approval. The fact that the site is approximately 3,000 square feet short of the PUD site requirement does not create any adverse affects for the site and does not prevent the applicant from using creative and innovative design techniques, as called for in the City's PUD regulations, to revitalize the property. The following is the analysis on how the requested waiver complies with the City's waiver criteria: (1) The request is consistent with the city's comprehensive plan. The size of the subject parcel, which is about 3,000 square feet short of the arbitrary limit of one acre for PUDs, does not conflict with the City's Comprehensive Plan. In fact, the redevelopment and revitalization of the subject site is consistent with the City's Future Land Use Element and, in particular, Objective 1.1.3., which states, "Maintain land development regulations to manage future growth and development in a manner that provides needed facilities and services, protects environmental resources, and encourages infill and redevelopment of the eastern portion of the City" (emphasis added). This application and the redevelopment of this site, along the eastern boundary of the City, are consistent with the City's Comprehensive Plan. (2) The request is consistent with the purpose and intent of this section. The purpose and intent of Section 78 -158, Waivers to planned development district requirements, is to encourage projects that "innovate, creative and utilize planning, design, and architectural concepts that will be a benefit to the City." The redevelopment of the site from a vacant building, with poorly maintained landscaping, and plagued by vandalism to a revitalized building with a national tenant and a new, lush, landscaping palette provides the innovative benefit to the City. This waiver for a reduced site size for this PUD allows for this redevelopment. (3) The request is in support of and furthers the city's goals, objectives, and policies to establish development possessing architectural significance, pedestrian amenities and linkages, employment opportunities, reductions in vehicle trips, and a sense of place. The requested waiver allows for the site to be considered as a PUD. As a PUD, the subject site will be able to use a variety of design techniques to create a project which is beneficial to the City. These improvements include providing more than double the required amount of landscaping, improved architectural elevations, more efficient landscape irrigation methods, and the addition of 20 new jobs within the City. (4) The request demonstrates that granting of the waiver will result in a development that exceeds one or more of the minimum requirements for PUDs. 6 As stated above, the waiver for the slightly reduced size of the PUD site allows for other improvements within the site which exceed the code requirements. The landscaping plan submitted provides more than double the required landscaping points. In addition, the site features more than three times the amount of required open space. (5) The request for one or more waivers results from innovative design in which other minimum standards are exceeded. As stated above, the site exceeds the City's minimum standards in a variety of areas, such as landscaping points, open space, lot coverage, and vehicular connections. In addition, the revitalization of the site has resulted in 20 new jobs within the City. (6) The request demonstrates that granting of the waiver will result in preservation of valuable natural resources, including environmentally - sensitive lands, drainage and recharge areas, and coastal areas. This criterion does not apply as there are no environmentally - sensitive lands, recharge areas or coastal areas associated with this site. It should be noted that the landscaping is being irrigated through a drip irrigation process which greatly reduces the amount of irrigation water being lost to evaporation and preserves water resources. (7) The request clearly demonstrates public benefits to be derived, Including but not limited to such benefits as no -cost dedication of rights -of -way, extensions of pedestrian linkages outside of the project boundaries, preservation of important natural resources, and use of desirable architectural, building, and site design techniques. The requested waiver for a reduced site size allows for this project to be considered as a PUD. As a PUD, the City has the opportunity to negotiate with the landowner in order to develop the best plan for the site and for the City. Without the PUD, the applicant's only requirement is to meet the code requirement. With a PUD, there are incentives to exceed the code requirements in order to provide justification for any waivers needed. This waiver allows for a PUD designation and the incentives that are included with that designation. (8) Sufficient screening and buffering, if required, are provided to screen adjacent uses from adverse impacts caused by a waiver. The requested waiver to allow for a smaller than the code required one acre PUD site does not cause any adverse impacts to adjacent properties. The requested waiver does not affect the site's commercial use or add any additional impact to the site. Additional landscaping is proposed throughout the site to bring the former vacant building up to and exceeding the City's landscape requirements. (9) The request is not based solely or predominantly on economic reasons. The request for a waiver to allow for a smaller PUD size is not based on any economic reason. The applicant has already spent thousands of dollars revitalizing this site and is currently seeking permission from the City to spend thousands more to continue to improve the site. The reason for the requested waiver is not economic. 7 (10) The request will be compatible with existing and potential land uses adjacent to the development site. There is no change in the commercial use of this property associated with this waiver request or with the PUD application. As such, the request is compatible with the surrounding land uses. (11) The request demonstrates the development will be in harmony with the general purpose and intent of this section, and that such waiver or waivers will not be injurious to the area involved or otherwise detrimental to the public health, safety, and welfare. The request for a reduced PUD site size allows the City more input in the design of the subject site, which is beneficial for the City. Also, as stated above, the applicant has more than doubled the required amount of landscape points and open space associated with the site. Monument Sign — Minimum Frontage Requirement and Side Yard Setback — Section 78 -285 Section 78 -285, Table 24, of the City's LDRs require a minimum of 300 linear feet of frontage for the placement of a monument sign. The table also requires that any monument sign be located 50 feet from any side property line. The applicant is seeking approval waivers from these two standards. As previously noted, the subject site has 100 linear feet of frontage along Northlake Boulevard. Also, because of the limited width of the subject site, the monument sign will be 48 feet from the adjacent (eastern) property line and municipal boundary. The main access point to the site is from Northlake Boulevard. However, secondary entrances to the site are accessed through an access drive connecting Congress Avenue to the northern portion of the site and another connection to the southern portion of the adjacent Polio Tropical restaurant parking lot. The monument sign is requested because the signage is needed to help facilitate an "easy and pleasant communication" with motorists. This waiver request is necessary as the large, beautiful trees along the subject site's eastern boundary on the Jiffy Lube site blocks the view of the AT &T store. Without the proposed monument sign, motorists traveling west along Northlake Boulevard will miss the only Northlake Boulevard entrance to the site. Because of this, motorists passing the store going west have to double -back or make a U -Turn to access the site. A monument sign will allow motorists to safely identify the site's sole entrance from Northlake Boulevard. In addition, eastbound traffic on Northlake Boulevard will need to turn north (left) onto Congress Avenue in order to enter the access drive to the rear of the AT &T store. This monument sign will alert motorists of the upcoming store from the Northlake Boulevard and Congress Avenue intersection. This request will result in safer traffic movements along Northlake Boulevard. The proposed monument sign will be set back 15 feet from Northlake Boulevard, which is the consistent with City Code. The sign is 8 feet in height which is 20% less than what allowed under the City's Code (10 feet). The requested monument sign is consistent with the upgrades being made to the entire site. The proposed monument is consistent in color and style with the updated store building colors. In addition, landscaping along the Northlake Boulevard frontage has been updated and enhanced. The site contains more than 3 times the amount of open space required for a commercial property within the City. The following is the analysis on how the requested waiver complies with the City's waiver criteria: (1) The request is consistent with the city's comprehensive plan. Policy 1.1.3.1. of the City's Future Land Use Element requires regulation of signage within the City. The purpose and intent of the City's Sign Code in enforcing this policy is "to facilitate an easy and pleasant communication between people and their environment." The applicant is seeking this waiver to allow this "easy and pleasant communication" Because of the mature trees and landscaping on east and west sides of the subject site, this communication is hampered or lost. The loss of this communication between the motorist and the use may cause motorists to double -back on Northlake Boulevard after they had passed the store. These additional turning movements can cause further congestion and safety issues for motorists on Northlake Boulevard. (2) The request is consistent with the purpose and intent of this section. The purpose and intent of Section 78 -158, Waivers to planned development district requirements, is to encourage projects that "innovate, creative and utilize planning, design, and architectural concepts that will be a benefit to the City." The request for a waiver to allow for a monument sign for the project will allow for an easier and safer access to the site. This action will support the redevelopment efforts on -going at the site. (3) The request is in support of and furthers the city's goals, objectives, and policies to establish development possessing architectural significance, pedestrian amenities and linkages, employment opportunities, reductions in vehicle trips, and a sense of place. The requested ability to provide a monument sign will greatly enhance the ability for the current tenant, AT &T, to continue its operations. The City, through its policies within the Future Land Use element and the Economic Development Element of its Comprehensive Plan, encourages the creation of new jobs and the retention of businesses. In addition Goal 1.2 of the Future Land Use element encourages redevelopment, such as the revitalization which continues on the subject site. The AT &T Mobility store on the subject site opened in November bringing 20 new jobs to the City. Since that time, AT &T employees have reported that customers have had trouble finding the store and often have to make U -turns or travel through adjacent sites to visit the store. A monument sign will help facilitate an easier and safer access to the subject site which will allow the existing business to prosper. (4) The request demonstrates that granting of the waiver will result in a development that exceeds one or more of the minimum requirements for PUDs. The requested PUD exceeds the code by providing three times the required amount of open space and less than one -third of the maximum lot coverage allowed. As stated previously, the subject site will provide more than double the required amount of landscaping. (5) The request for one or more waivers results from innovative design in which other minimum standards are exceeded. The requested waiver to allow a monument sign for the property will assist motorists in finding and accessing the site in an efficient and safe manner. The subject site already enjoys many of the desired design features, such as having the preponderance of parking to the rear of the building and having E multiple vehicular connections to adjacent properties. Monument signage is also needed because of the large, existing trees which shield much of the building from Northlake Boulevard. (6) The request demonstrates that granting of the waiver will result in preservation of valuable natural resources, including environmentally - sensitive lands, drainage and recharge areas, and coastal areas. As the project is the redevelopment of an infill site, there are no natural resources on the site. However, the reuse of the vacant building within the eastern portion of the City is an anti- sprawl measure. The reuse and redevelopment of infill site allows for a more efficient development pattern in the City and reduces development pressures on undeveloped areas where natural resources may be present. (7) The request clearly demonstrates public benefits to be derived, including but not limited to such benefits as no -cost dedication of rights -of -way, extensions of pedestrian linkages outside of the project boundaries, preservation of important natural resources, and use of desirable architectural, building, and site design techniques. As described above, the requested waiver to allow for a monument sign will allow for motorists to safely access the site. The redevelopment and reuse of the existing building, rather than tearing down and rebuilding a new structure, creates less impact on municipal services. The building has been architecturally upgraded with more attractive colors and new awnings. (8) Sufficient screening and buffering, if required, are provided to screen adjacent uses from adverse impacts caused by a waiver. The requested waiver to allow for the monument sign will feature landscaping which will meet and exceed code requirements. It should be noted that the proposed monument sign is only eight feet in height, which is 20% less than what is allowed by the City's Sign Code. (9) The request is not based solely or predominantly on economic reasons. The reason for the request is to facilitate an easy and pleasant communication between passing motorists and their environment that will direct motorist into safely accessing the site. (10) The request will be compatible with existing and potential land uses adjacent to the development site. The subject site is located along Northlake Boulevard, which is a heavily -used, automobile- oriented commercial corridor with many monument signs of many shapes and sizes. The addition of the requested monument sign is compatible with the existing and potential land uses and its design will enhance the aesthetics of the corridor. (11) The request demonstrates the development will be in harmony with the general purpose and intent of this section, and that such waiver or waivers will not be injurious to the area involved or otherwise detrimental to the public health, safety, and welfare. The provision of a monument sign will help direct motorists to safely access the site without making a U -turn on the busy Northlake Boulevard, where more than 40,000 cars travel daily. The proposed signage is harmonious with the architecture of the site and is consistent with the activities along Northlake Boulevard. 10 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 ORDINANCE 24, 2010 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA REZONING CERTAIN REAL PROPERTY WITHIN THE CORPORATE LIMITS OF THE CITY OF PALM BEACH GARDENS, CONSISTING OF ONE (1) PARCEL OF REAL PROPERTY COMPRISED OF ONE (1) PLATTED LOT TOTALING 0.93 ACRES, MORE OR LESS, IN SIZE, LOCATED ON THE NORTH SIDE OF NORTHLAKE BOULEVARD APPROXIMATELY 500 FEET EAST OF NORTH CONGRESS AVENUE, WITH A STREET ADDRESS OF 3005 NORTHLAKE BOULEVARD, INFORMALLY KNOWN AS THE "AT &T PROPERTY "; PROVIDING THAT THIS PARCEL OF REAL PROPERTY, WHICH IS MORE PARTICULARLY DESCRIBED HEREIN, SHALL BE ASSIGNED THE CITY ZONING DESIGNATION OF PLANNED UNIT DEVELOPMENT (PUD) OVERLAY WITH AN UNDERLYING ZONING DESIGNATION OF GENERAL COMMERCIAL (CG -1); PROVIDING THAT THE ZONING MAP OF THE CITY OF PALM BEACH GARDENS BE AMENDED ACCORDINGLY; PROVIDING A CONFLICTS CLAUSE, A SEVERABILITY CLAUSE, AND AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. WHEREAS, the City received application PPUD- 09 -12- 000023 from 3005 Northlake Boulevard, LLC to rezone a 0.93 -acre parcel of real property located on Northlake Boulevard east of North Congress Avenue, as more particularly described herein, to Planned Unit Development (PUD) Overlay with underlying General Commercial (CG -1) zoning district; and WHEREAS, the subject site is currently zoned General Commercial (CG1) and has a land -use designation of Commercial (C); and WHEREAS, the subject site was platted as the "Costakos Plat" by Resolution 163, 2001; and WHEREAS, the Planning and Zoning Department has reviewed the application, has determined that it is sufficient and consistent with the City's Comprehensive Plan and Land Development Regulations, and has recommended approval; and WHEREAS, the Planning, Zoning, and Appeals Board held a public hearing on September 14, 2010, and waivers to the City Council; has recommended approval of the rezoning with three (3) and Page 1 of 4 Ordinance 24, 2010 1 WHEREAS, the City Council, as the governing body of the City of Palm Beach 2 Gardens, Florida, pursuant to the authority in Chapter 163 and Chapter 166, Florida 3 Statutes, and the City's Land Development Regulations, is authorized and empowered 4 to consider petitions related to zoning and land development orders; and 5 6 WHEREAS, the City Council has considered the evidence and testimony 7 presented by the Applicant and other interested parties and the recommendations of the 8 various City of Palm Beach Gardens and Palm Beach County reviewing agencies and 9 staff; and 10 11 WHEREAS, the City Council deems approval of this Ordinance to be in the best 12 interests of the health, safety, and welfare of the residents and citizens of the City of 13 Palm Beach Gardens and the public at large; and 14 15 WHEREAS, the City Council has determined that this Ordinance is consistent 16 with the City's Comprehensive Plan based on the following findings of fact: 17 18 1. The proposed rezoning of Planned Unit Development (PUD) Overlay with 19 an underlying zoning of General Commercial (CG1) is consistent with the 20 future land -use designation of Commercial (C). 21 22 2. The proposed rezoning is in harmony with the general purpose and intent of 23 the Comprehensive Plan and the Land Development Regulations, and is 24 compatible with the intensity and density of the surrounding, existing, and 25 future land uses. 26 27 28 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 29 OF PALM BEACH GARDENS, FLORIDA that: 30 31 SECTION 1. The foregoing recitals are hereby affirmed and ratified. 32 33 SECTION 2. That certain parcel of real property located within the corporate 34 limits of the City of Palm Beach Gardens comprised of one (1) platted lot totaling 35 approximately 0.93 acres, more or less, in size located on the north side of Northlake 36 Boulevard approximately 500 feet east of North Congress Avenue, with a street address 37 of 3005 Northlake Boulevard, and currently zoned General Commercial (CG1) 38 according to the City zoning map is hereby zoned Planned Unit Development (PUD) 39 with an underlying zoning designation of General Commercial (CG1) and is legally 40 described as follows: 41 42 (See Exhibit "A" for Legal Description) 43 44 SECTION 3. The City Zoning Map is hereby amended to conform to this 45 Ordinance, and the City Manager is hereby authorized and directed to make appropriate 46 changes on the City Zoning Map. Page 2 of 4 Ordinance 24, 2010 1 SECTION 4. All ordinances or parts of ordinances in conflict be and the same 2 are hereby repealed. 3 4 SECTION 5. Should any section or provision of this Ordinance or any portion 5 thereof, any paragraph, sentence, or word be declared by a Court of competent 6 jurisdiction to be invalid, such decision shall not affect the validity of the remainder of 7 this Ordinance. 8 9 SECTION 6. This Ordinance shall become effective immediately upon adoption. 10 11 12 13 (The remainder of this page intentionally left blank) 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 47 Page 3 of 4 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 :f:? Ordinance 24, 2010 PASSED this _day of c-r r A,,-k , 2010, upon first reading. PASSED AND ADOPTED this day of , 2010, upon second and final reading. CITY OF PALM BEACH GARDENS BY: David Levy, Mayor Robert G. Premuroso, Vice Mayor Joseph 9. Russo, Councilmember Eric Jablin, Councilmember Marcie Tinsley, Councilmember ATTEST: BY: Patricia Snider, CMC, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY: R. Max Lohman, City Attomey FOR AGAINST ABSENT G:% attorney_ share�ORDINANCES%20101oniinance 24 2010 - att pud.doc Page 4 of 4 i Ordinance 24, 2010 EXHIBIT "A" LEGAL DESCRIPTION DEDICATION AND RESERVATIONS: STATE OF FLORIDA COUNTY OF PALM BEACH KNOW ALL MEN BY THESE PRESENTS THAT DAVID P. COSTAKOS AS TRUSTEE OF DAVID P. COSTAKOS TRUST UNDER TRUST AGREEMENT DATED JANUARY 8, 1997 AMENDED APRIL 29, 1998, OWNER OF SAID LAND SHOWN HEREON AS " COSTAKOS PLAT ", LYING IN SECTION 18, TOWNSHIP 42 SOUTH, RANGE 43 EAST, CITY OF PALM BEACH GARDENS, PALM BEACH COUNTY, FLORIDA, BEING DESCRIBED AS FOLLOWS: THE EAST 100 FEET OF THE SOUTH 467 FEET OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 18, TOWNSHIP 42 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 60 FEET THEREOF AS CONVEYED FOR ROAD RIGHT -OF -WAY IN DEED BOOK 912, PAGE 317 AND OFFICIAL RECORD BOOK 2284, PAGE 1028. CONTAINING 0.934 ACRES, MORE OR LESS. 1 2 RESOLUTION 75, 2010 3 4 5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM 6 BEACH GARDENS, FLORIDA APPROVING THE AT &T PLANNED 7 UNIT DEVELOPMENT (PUD) SITE PLAN, AS MORE 8 PARTICULARLY DESCRIBED HEREIN; PROVIDING WAIVERS; 9 PROVIDING CONDITIONS OF APPROVAL; PROVIDING AN 10 EFFECTIVE DATE; AND FOR OTHER PURPOSES. 11 12 13 WHEREAS, the City Council, as the governing body of the City of Palm Beach 14 Gardens, Florida, pursuant to the authority in Chapter 163 and Chapter 166, Florida 15 Statutes, and the City's Land Development Regulations, is authorized and empowered 16 to consider petitions related to zoning and land development orders; and 17 18 WHEREAS, the City received a request from 3005 Northlake Boulevard, LLC for 19 approval of the AT &T PUD, located on the north side of Northlake Boulevard 20 approximately 500 feet east of North Congress Avenue; and 21 22 WHEREAS, the Planning and Zoning Department has reviewed the application, 23 has determined that it is sufficient, and has recommended approval; and 24 25 WHEREAS, the Planning, Zoning, and Appeals Board reviewed the petition at its 26 September 14, 2010, public hearing and recommended approval of the PUD and three 27 (3) waivers; and 28 29 WHEREAS, the City Council has considered the evidence and testimony 30 presented by the Applicant and other interested parties and the recommendations of 31 the various City of Palm Beach Gardens reviewing agencies and staff; and 32 33 WHEREAS, the City Council deems approval of this Resolution to be in the best 34 interests of the health, safety, and welfare of the residents and citizens of the City of 35 Palm Beach Gardens and the public at large. 36 37 38 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 39 OF PALM BEACH GARDENS, FLORIDA that: 40 41 SECTION 1. The foregoing recitals are hereby affirmed and ratified. 42 43 44 45 46 Page 1 of 4 Resolution 75, 2010 1 SECTION 2. The application is hereby APPROVED for a PUD Overlay, subject to 2 the conditions of approval contained herein, which are in addition to the general 3 requirements otherwise provided by resolution for the real property described as follows: 4 5 (See Exhibit "A" for Legal Description) 6 7 SECTION 3. The City Council of the City of Palm Beach Gardens, Florida 8 hereby APPROVES the following three (3) waivers: 9 10 1. Section 78- 154(8)(7), Table 14, Minimum PUD Development Size, to allow a 11 0.93 -acre PUD site. 12 13 2. Section 78 -229, Table 5 -6, Groun&Monument, to allow one (1) monument 14 sign for a parcel with 100 linear feet of street frontage. 15 16 3. Section 78 -229, Table 5 -6, Ground/Monument, to allow the 17 ground /monument sign to maintain a 48 -foot setback on one side. 18 19 SECTION 4. This approval is subject to the following conditions, which shall be 20 the responsibility of and binding upon the Applicant, its successors, or assigns: 21 22 1. Prior to the issuance of the first sign permit associated with the subject 23 petition, the Applicant, successors, and assigns shall install the approved 24 road shoulder landscaping and irrigation along Northlake Boulevard from 25 the eastern property terminus to the western property terminus. (City 26 Forester) 27 28 2. The Applicant, successors, and assigns shall be responsible for 29 maintenance of landscaping and irrigation along Northlake Boulevard from 30 the eastern property terminus to the western property terminus for the road 31 shoulder. (City Forester) 32 33 3. The Applicant, successors, and assigns shall be responsible for 34 maintenance of their fair share of the median from the eastern property 35 terminus to the western property terminus. (City Forester) 36 37 SECTION 5. This petition is approved subject to strict compliance with the 38 Exhibits, which are attached hereto and made a part hereof as Exhibit "B ", as follows: 39 40 1. Site Plan, Sheet SP -1, prepared by Urban Design Kilday Studios, dated July 41 22, 2010. 42 43 2. Landscape Plan, Sheet LA -1, prepared by Urban Design Kilday Studios, 44 dated August 25, 2010. 45 46 Page 2 of 4 Resolution 75, 2010 3. Landscape Plan, Sheet LA -2, prepared by Urban Design Kilday Studios, dated July 22, 2010. 4. Monument Sign, Sheet 1, prepared by Urban Design Kilday Studios, dated August 26, 2010. SECTION 6. This approval shall be consistent with all representations made by the Applicant or the Applicant's agent at any workshop or public hearing. SECTION 7. This Resolution shall become effective immediately upon adoption. (The remainder of this page intentionally left blank) Page 3 of 4 Resolution 75, 2010 1 PASSED AND ADOPTED this day of , 2010. 2 3 4 CITY OF PALM BEACH GARDENS, FLORIDA 5 6 7 BY: 8 9 10 ATTEST: 11 12 13 BY: 14 Patricia Snider, CMC, City Clerk 15 16 17 APPROVED AS TO FORM 18 AND LEGAL SUFFICIENCY 19 20 21 BY: 22 R. Max Lohman, City Attorney 23 24 25 26 David Levy, Mayor 27 VOTE: AYE NAY ABSENT 28 29 MAYOR LEVY 30 31 VICE MAYOR PREMUROSO 32 33 COUNCILMEMBER RUSSO 34 35 COUNCILMEMBER JABLIN 36 37 COUNCILMEMBER TINSLEY 38 39 40 41 42 43 44 45 46 47 G:l attomey_ shareWESOLUTIONS120101Resolution 75 2010 - att pud.doc Page 4 of 4 Resolution 75, 2010 EXHIBIT "A" LEGAL DESCRIPTION DEDICATION AND RESERVATIONS: STATE OF FLORIDA COUNTY OF PALM BEACH KNOW ALL MEN BY THESE PRESENTS THAT DAVID P. COSTAKOS AS TRUSTEE OF DAVID P. COSTAKOS TRUST UNDER TRUST AGREEMENT DATED JANUARY 8, 1997 AMENDED APRIL 29, 1998, OWNER OF SAID LAND SHOWN HEREON AS " COSTAKOS PLAT ", LYING IN SECTION 18, TOWNSHIP 42 SOUTH, RANGE 43 EAST, CITY OF PALM BEACH GARDENS, PALM BEACH COUNTY, FLORIDA, BEING DESCRIBED AS FOLLOWS: THE EAST 100 FEET OF THE SOUTH 467 FEET OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 18, TOWNSHIP 42 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 60 FEET THEREOF AS CONVEYED FOR ROAD RIGHT -OF -WAY IN DEED BOOK 912, PAGE 317 AND OFFICIAL RECORD BOOK 2284, PAGE 1028. CONTAINING 0.934 ACRES, MORE OR LESS. Resolution 75, 2010 EXHIBIT "B" C 000 rQ O _ ❑ 34sAd � .0 .- , `5 u °mE17.�1 4- `{? I Hill, g $iietI ; @ a a s 1 1 € �-.. 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F= Z W w�oZ��0 t-am o�� oo =) wx� Z 0(LL_WQ s E E R S m (SJ e C 1 cD T 1 •• 10-71 +Mj- 66 LO 0 C) — ..o -,c , N M O ti 00 O CT- 0 ca cn E a) � *r J Z C7 C/) z w 2 Z) z 0 42i9 C T c Da =; Ego 106 u N C> O d t CO CITY OF PALM BEACH GARDENS CITY COUNCIL Agenda Cover Memorandum Meeting Date: December 2, 2010 Petition No. REZN- 10 -10- 000010 Ordinance 27, 2010 Subject/Agenda Item: Ordinance 27, 2010: Parcel 18A.07 Rezoning First Reading: A request by 95 Hood, LLC for a rezoning from Palm Beach County Residential Single Family (RS) and Residential Estate (RE) to City of Palm Beach Gardens Residential Low, up to four (4) units per acre (RL -2) for Parcel 18.A07, a 12.39 -acre parcel generally located on the northwest corner of Hood Road and the Florida Turnpike. [X] Recommendation to APPROVE [ ] Recommendation to DENY Reviewed by: Originating Dept.: Finance: City Council Action: Director of Planning & Zo Planning & Zoning: Project Manager Accountant 5y `ir [ ] Approved [ ] App. w/ conditions Sarah Varga Funding Source: ill/ �� [ ] Denied [ ] Rec. approval [ ] Rec. app. w/ conds. [ ]Rec. Denial a a e M. Wong, AICP City A Martin Schneider, AICP Planner [ ] Operating [ ] Continued to: R. Wx L an, Esq. [X] Quasi — Judicial [X] Other NA Development Compliance IVI Bahareh Wolfs, AICP [ ] Legislative [X] Public Hearing Budget Acct. #: NA Advertised: [X] Required Date: 11.24.2010 Attachments: Application • Location Map • Current Future Land Res urce Manager Paper: Palm Beach Post Use Map a Current Zoning Map . Proposed Zoning Map Allyson Black . Ordinance 27, 2010 Approved By: Affected parties: City Mana [X] Notified quired Ronald . F ris Meeting Date: December 2, 2010 Ordinance 27, 2010 Page 2 of 5 BACKGROUND Parcel 18.A07 is a 12.39 -acre site located at the northwest corner of Hood Road and the Florida Turnpike (see Location Map, attached. The subject site is presently a vacant, wooded parcel of land, which was annexed into the City on June 17, 2010. The Future Land Use (FLU) designation of the subject site was amended from Palm Beach County (PBC) Low Residential, two (2) units per acre (IR -2), to City of Palm Beach Gardens Residential Low (RL), up to four (4) units per acre, on October 21, 2010. The FLU amendment to RL was approved by City Council after review by the Department of Community Affairs and the Treasure Coast Regional Planning Council, neither of which had any adverse comments or objections regarding the amendment. The City's Comprehensive Plan requires that rezoning of a newly annexed site be initiated upon the effective date of the Future Land Use amendment. In addition, the City's Zoning Map is required to be consistent with the Future Land Use Map. Therefore, the proposed rezoning request has been submitted to change the zoning of the subject property from PBC Residential Single Family (RS) and Residential Estate (RE) to City Residential Low, up to four (4) units per acre (RL -2). The proposed rezoning request will assign the subject property a zoning district consistent with its Future Land Use designation, as required by the City's Comprehensive Plan. No development plans have been submitted at this time. LAND USE & ZONING The subject site currently has two (2) Palm Beach County zoning designations: Residential Single Family (RS) for the southernmost 10.0 + /- acres and Residential Estate (RE) for the northernmost 2.4 +/- acres. County zoning designations do not determine density, but refer back to the future land use designation, which in this case was Low Residential, two (2) units per acre (IR -2). This petition will provide a City zoning designation of Residential Low, up to four (4) units per acre (RL -2) to the recently annexed site. The subject site is adjacent to the Florida Turnpike to the east, Hood Road to the south, and the Eastpointe Country Club located in unincorporated Palm Beach County to the north and west. The existing uses, zoning districts, and future land use designations of adjacent properties are summarized in Table 1. (The remainder of this page intentionally left blank) Meeting Date: December 2, 2010 Ordinance 27, 2010 Page 3 of 5 TABLE 1. ZONING CLASSIFICATIONS AND LAND USE DESIGNATIONS EXISTING USE ZONING FUTURE LAND USE Subject Property RS; RE RL Vacant Palm Beach County Palm Beach Gardens North Residential Low (Eastpointe RE LR -2 Country Club) Palm Beach County Palm Beach County Palm Beach Count West Residential Low (Eastpointe RS; RE LR -2 Country Club) Palm Beach County Palm Beach County Palm Beach County South Hood Road; Marsh Pointe PCD RL Elementary School Palm Beach Gardens Palm Beach Gardens Palm Beach Gardens East Turnpike; Vacant (Briger Tract) PCD /MXD MXD Palm Beach Gardens Palm Beach Gardens Palm Beach Gardens Notes: County designations: Residential Single Family (RS) Residential Estate (RE) Low Residential, 2 units per acre (LR -2) City designations: Residential Low (RL) Planned Community Development (PCD) Mixed Use (MXD) CONSISTENCY WITH THE CITY'S COMPREHENSIVE PLAN The proposed rezoning is consistent with the City's Comprehensive Plan. The proposed RL -2 zoning district (which allows up to four (4) units per acre) is consistent with the subject site's Future Land Use designation of RL (which also allows up to four (4) units per acre). The Comprehensive Plan also requires compatibility with the densities and intensities of surrounding land uses. The proposed rezoning is compatible with the adjacent low density residential land use designation to the south (Marsh Pointe Elementary School), the MXD land use designation to the east (currently vacant), and the low density residential neighborhood (Eastpointe) to the west and north. Meeting Date: December 2, 2010 Ordinance 27, 2010 Page 4 of 5 LEVEL OF SERVICE (LOS) ANALYSIS As part of the subject site's recently approved Future Land Use Amendment to Residential Low, a Level of Service (LOS) analysis was conducted. The FLU amendment to the subject site met the LOS standards established in the City's Comprehensive Plan, and there were no adverse impacts on the adopted LOS standards for water, sewer, solid waste, parks and recreation, schools, police and fire services, or traffic. The service providers confirmed that there will be adequate capacity available for water, sewer, solid waste, parks and recreation, schools, and police and fire services to service the subject site. However, even though capacity is available, no capacity has been reserved for the site. The subject site's proposed zoning designation allows the same potential maximum density and will have the same potential impacts as its FLU designation. Since the rezoning request to RL -2 is consistent with the density of the recently approved Comprehensive Plan amendment to RL, there are no additional LOS concerns, and no additional LOS analysis is required. CONCURRENCY Concurrency is not required at the time of rezoning. The applicant is not requesting approval of a concurrency certificate at this time. As stated above, the proposed rezoning is consistent with the recently approved FLU designation and meets the City's LOS requirements. However, the applicant will still need to meet all concurrency requirements when a site plan petition is submitted. Approval of the proposed rezoning request in no way assures the applicant that public services and facilities will be available at the time of development, nor does it vest the property for concurrency. A concurrency certificate is required to reserve capacity. Capacity reservation is granted on a first -come, first - served basis. The date and time that an applicant's concurrency certificate is issued will establish when capacity of public facilities is granted. COMMENTS FROM THE DEVELOPMENT REVIEW COMMITTEE (DRC) The subject petition was reviewed by members of the DRC Committee on October 22, 2010. No comments or objections were received. PLANNING, ZONING, AND APPEALS BOARD (PZAB) On November 9, 2010, the Planning, Zoning, and Appeals Board (PZAB) unanimously recommended approval of the petition to City Council. STAFF ANALYSIS The proposed rezoning to RL -2 is compatible with the adjacent properties and with the City's Comprehensive Plan. RL -2 (which allows up to four (4) units per acre) is consistent with the FLU designation of the subject site and compatible with the neighboring Eastpointe Country Club. Meeting Date: December 2, 2010 Ordinance 27, 2010 Page 5 of 5 As stated, the applicant is not proposing any development plans at this time, and site plan submission is not required at the time of rezoning. Rezoning to RL -2 will assign an appropriate City zoning category to the newly annexed parcel as required by the Comprehensive Plan, while allowing the applicant to market the residentially zoned property without having to prepare an expensive development plan prematurely. Therefore, RL -2 is determined to be the most appropriate zoning district for the subject site. If a development plan is submitted for the subject site, it will need to go through the City's review process. This process includes a publicly noticed Development Review Committee (DRC) meeting, at which time City staff from various departments and relevant outside agencies will review and comment on the proposed plan. After all comments have been addressed, the site plan will be scheduled for a public meeting of the Planning, Zoning, and Appeals Board (PZAB) for recommendation to the City Council. The City Council will then make a final determination to approve, approve with conditions, or deny the site plan at a public meeting. Public notice will be required for each of these meetings. STAFF RECOMMENDATION: Staff recommends APPROVAL of Ordinance 27, 2010 as presented on first reading. CITY OF PALM BEACH GARDENS DEVELOPMENT APPLICATION Planning and Zoning Division Growth Management Department CITY OF PALM BEACH GARDENS 10500 North Military 'frail Palm Beach Gardens, FL 33410 (561) 799 -4243 Fax (561) 799 -4281 Request: Planned Community Development (PCD) Planned Unit Development (PUD) Amendment to PCD, PUD or Site Plan Conditional Use Amendment to the Comprehensive Plan Administrative Approval Administrative Appeal Project Name: Hood West Owner: 95 Hood, LLC Applicant (if not Owner): Jose M. Martinez QAnnexation Q✓ Rezoning � ite Plan Review oncurrency Certificate [Time Extension OMiscellaneous QOther Date Submitted: Applicant's Address: 7855 NW 12th St. Miami, Fl 33126 Telephone No. 305 593 -0002 Agent: Jose M. Martinez Contact Person: Jose M. Martinez f E -Mail: j•m.martinez @bellsouth.net Agent's Mailing Address: JM Advisors, Suite 217 : 7855 NW 12th Street - Miami, FI 33126 Agent's Telephone Number: 305 593 -0002 office 786 525 -9623 cellular FOR OFFICE USE ONLY Petition Number: Date & Time Received: Fees Received Application $ Engineering $ Receipt Number: CITY OF PALM SCN PLANhttt4(_ H zoWN("� CITY oe PALM BCH OD Oc f u 2010 !'CANNING 6 ZONING .i none Architect: Engineer: none none Planner: Landscape Architect: none Site Information: Note: Petitioners shall submit electronic digital files of approved projects. See attachment for details. General Location: Northwest Corner of the intersection of Hood Road and the Florida Turnpike Address: Not available 27 & 43 41 south 42 Section: Township: Range: Property Control Numbers ): 00- 42- 41- 34 -00- 000 -1030 and 00- 42- 41- 27 -00- 000 -5010 12.388 County RS / RE RL -2 Acreage: Current Zoning: Requested Zoning: Flood Zone B Base Flood Elevation (BFE) — to be indicated on site plan 18.6 NGVt Current Comprehensive Plan Land Use Designation: County LR2 residential Low Existing Land Use: vacant Requested Land Use: City RL Residential Low Proposed Use(s) i.e. hotel, single family residence, etc.: Single family Proposed Square Footage by Use: Proposed Number and Type of Dwelling Unit(s) i.e. single family, multifamily, etc. (if applicable): 3 to 4 units per acre Justification 2 Information concerning all requests (attach additional sheets if needed.) (Section 78 -46, Application Procedures, Land Development Regulations) 1. Explain the nature of the request: as required to complete the annexation process 2. What will be the impact of the proposed change on the surrounding area? NONE the zoning is consistent with the city's future land use. 3. Describe how the rezoning request complies with the City's Vision Plan and the following elements of the City's Comprehensive Plan — Future Land Use, Transportation, Housing, Infrastructure, Coastal Management, Conservation, Recreation and Open space, Intergovernmental Coordination and Capital Improvement. The zoning request is consistent with the city's vision and comprehensive plan. 4. How does the proposed project comply with City requirements for preservation of natural resources and native vegetation (Section 78 -301, Land Development Regulations)? currently there is no development plan for the site but the owner agrees to comply with all natural resource agency requirements when preparing plan for submittal 5. How will the proposed project comply with City requirements for Art in Public Places (Chapter 78- 261, Land Development Regulations)? N/A 6. Has project received concurrency certification? No Date received: Legal Description of the Subiect Property (Attach additional sheets if needed) Or see attached deed for legal description. Location The subject property is located approximately mile(s) from the intersection of Hood road and the Florida turnpike , the intersection on th north ast oath ✓ est side of (street/road), Statement of Ownership and DesiLnation of Authorized Alzent Before me, the undersigned authority, personally appeared Nate Ward who, being by me first duly sworn, on oath deposed and says: 4 0 � Palm Beach Gardens Growth Management Department [r� 10500 North Military Trail, Palm Beach Gardens, FL 33410 • 561- 799 -4230 CIAO Permit # Financial Responsibility Form The owner understands that all City - incurred professional fees and expenses associated with the processing of this application request are ultimately the responsibility of the owner. A security deposit shall be deposited in an interest - bearing account with any accrued interest to be retained by the City of Palm Beach Gardens. The owner and /or designee shall be invoiced on a monthly basis for professional fees such as, but not limited to, consultant engineering services, legal services, advertising costs, and /or any other costs attributable to the processing of the permit for which the City incurred during the previous month. The owner and/or designee shall reimburse the City within thirty (30) days from date of invoice. If payment is not received, the City may utilize the security deposit for re- imbursement purposes. All activities related to the pending permit(s) will cease until any outstanding invoices are paid. The ownerldesignee further understands that transfer of this responsibility shall require a completed form, signed and notarized by the responsible party, and delivered to the City Growth Man ent Department if the name and /or address of the responsible party changes at anytime duji h App�tcatiol� view process. Owner signature Date Nate Ward Owner printed name DESIGNEE /BILL TO: 95 Hood LLC 505 S. Flagler Drive, Suite 1400 Palm Beach Florida 00424134000001030 and 00424127x00005010 Property Control Number Designee Acceptance Signature NOTARY ACKNOWLEDGEMENT STATE OF I0V -- Ct(>�' COUNTY OF '&C:LC,4_\ I hereby certify that the foregoing instrument was acknowledged before me this ZS+,�day of � ,.2kt vy \1;)pr- , 201Q, by '14a� i 1 l u v, tom_ )ckV 0 . He or she is personally known to me or has produced as identification. NOTARY PUBLIC-STATE OF FLORIDA Notary public signature Commission Danielle t�errera /r DD983866 ''••.,,, Expires: APR 20, 2014 �� �'t \� rr ►�C:. BONDED THRU ATI.A., r1C BONDING Co., INC. Printed name State of �1u �c,�� . at -large My Commission expires: y t-UA t`A LLJ 0 Z m 0 Z 0 C) X00 OMMOM 0 � © U.J _M CL = . LLJ 0LJJJ LU C14 J 0 LLJ C) CL alfC. F-- V) IAJ Lj.l LL- Lv F- ci i C) XcLe Q LtJ L�. 2 " LO "d' Lid -I- CL LLJ U- V) w 0 LAJ _M h�- h Z 0 .. CO e— LU WF- CL V) F- CN "Jo oz o O U V) 0 LLJ F- FOBCrz uo z �---- UJ N ►') F- tI) U-) Lo U- U- <--Do W ID <� O W :C L,J V) =0 Ono W ::) LLJ!Q'=O. V7 vi Zc U) C� LLJ Ld �r Of (J) LLJ ow < W 00 Lj OD Q Cam! e- W < CC FF-- Q C� w L W LLJ C. CL LLI x L LLJ LLJ z � Z. -j� C) I na VT AST tv iJqi A lip h! wool out I wif In dick Mae, �°y'igxSgi � o is �9i:a i Rio 1 in Is HIM RID$ I Nil all W, ii I I na VT AST tv iJqi A lip h! wool out I wif In dick Mae, �°y'igxSgi is Rio 1 in Is HIM RID$ I Nil all W, �1 YI a z± f- rn Q "HOOD RD Cr ; O J LL t GOLDEN MAP I . fSi I 1`� T ail s` M M.M QPARCEL 18.A07 M LR -2 -LOW RESIDENTIAL, 2 UNITS PER ACRE N REZN- 10 -10- 000010 PARCEL 18.A07 MRL - RESIDENTIAL LOW N LIT • UTILITIES ANDTRANSPORTATION ®MUNICIPAL BOUNDARY M RL - RESIDENTIAL LOW 10 FUTURE LAND USE MAP (AS OF OCT 21, 2010) UNINCORPORATED PBC MMXD - MIXED USE City of Palm Beach Gardens y D 0 125 250 500 750 1,000 Palm Beach County, Florida - -- Feet Created October 15, 2010 Source: PSG Planning & Zoning ^ ERDE WAY 'rte Wo b�Y . An 0 I11 �1 YI a z± f- rn Q "HOOD RD Cr ; O J LL t GOLDEN MAP I . fSi I 1`� T ail s` M M.M QPARCEL 18.A07 M LR -2 -LOW RESIDENTIAL, 2 UNITS PER ACRE N REZN- 10 -10- 000010 PARCEL 18.A07 MRL - RESIDENTIAL LOW N LIT • UTILITIES ANDTRANSPORTATION ®MUNICIPAL BOUNDARY M RL - RESIDENTIAL LOW 10 FUTURE LAND USE MAP (AS OF OCT 21, 2010) UNINCORPORATED PBC MMXD - MIXED USE City of Palm Beach Gardens y D 0 125 250 500 750 1,000 Palm Beach County, Florida - -- Feet Created October 15, 2010 Source: PSG Planning & Zoning 0� � op ISLE VERDE WAY — ►, ON BPARCEL1SA07 RE- RESIDENTIAL ESTATE DISTRICT N REZN- 10 -10- 000010 PARCEL 18.A07 MUNICIPAL BOUNDARY SRS- SINGLE FAMILY RESIDENTIAL DISTRICT EXISTING ZONING MAP UNINCORPORATED PBC -RM - RESIDENTIALMEDIUMDENSITY }i �� -•� -PCD- PLANNED COMMUNITY DEVELOPMENT City of Palm Beach Gardens o 125 250 500 750 1,000 y: Palm Beach County, Florida IIIIIIIII Ammomw Feet Created October 15, 2010 Source: PBG- Planning & Zoning w z z O M RL2 ISLE VERDE WAY REZN- 10 -10- 000010 PARCEL 18.A07 PROPOSED ZONING MAP City of Palm Beach Gardens Palm Beach County, Florida HOOD RD Y� a z Cr �n a a Ir O J LL 11 RM O PARCEL 18.A07 RE - RESIDENTIAL ESTATE DISTRICT N RL2 MM RS - SINGLE FAMILY RESIDENTIAL DISTRICT oMUNICIPAL BOUNDARY (ARM- RESIDENTIAL MEDIUM DENSITY UNINCORPORATED PBC M PCD - PLANNED COMMUNITY DEVELOPMENT 0 125 250 500 750 1,000 Feet Created October 15, 2010 Source: PBG- Planning& Zoning 1 2 ORDINANCE 27, 2010 3 4 5 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM 6 BEACH GARDENS, FLORIDA REZONING ONE (1) PARCEL OF 7 REAL PROPERTY CONSISTING OF APPROXIMATELY TWELVE 8 AND 391100 (12.39) ACRES, MORE OR LESS; SUCH PARCEL 9 BEING LOCATED GENERALLY AT THE NORTHWEST CORNER 10 OF THE INTERSECTION OF HOOD ROAD AND THE FLORIDA 11 TURNPIKE, INFORMALLY KNOWN AS "PARCEL 18.A07 ", AS 12 MORE PARTICULARLY DESCRIBED HEREIN, FROM PALM 13 BEACH COUNTY RESIDENTIAL SINGLE FAMILY (RS) AND 14 RESIDENTIAL ESTATE (RE) TO CITY OF PALM BEACH GARDENS 15 RESIDENTIAL LOW, UP TO 4 UNITS PER ACRE (RL -2) ZONING 16 DISTRICT; PROVIDING FOR REVISIONS TO THE ZONING 17 DISTRICT MAP; PROVIDING A CONFLICTS CLAUSE, A 18 SEVERABILITY CLAUSE, AND AUTHORITY TO CODIFY; 19 PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. 20 21 22 WHEREAS, the City of Palm Beach Gardens received a request (Petition 23 Number REZN- 10 -10- 000010) from 95 Hood, LLC for a rezoning from Palm Beach 24 County Residential Single Family (RS) and Residential Estate (RE) to City of Palm 25 Beach Gardens Residential Low, up to 4 units per acre (RL -2) for Parcel 18.A07, a 26 12.39 -acre parcel generally located on the northwest corner of Hood Road and the 27 Florida Turnpike, as more particularly described herein; and 28 29 WHEREAS, the subject site was annexed into the City of Palm Beach Gardens 30 on June 17, 2010; and 31 32 WHEREAS, the subject site was assigned a City of Palm Beach Gardens future 33 land use designation of Residential Low (RL) on October 21, 2010; and 34 35 WHEREAS, the proposed rezoning of Residential Low, up to 4 units per acre 36 (RL -2) is consistent with the future land use designation of Residential Low (RL); and 37 38 WHEREAS, the Planning and Zoning Department has reviewed the application, 39 has determined that it is sufficient, and has recommended approval; and 40 41 WHEREAS, the Planning, Zoning, and Appeals Board held a public hearing on 42 November 9, 2010, and has recommended approval of the rezoning to the City Council 43 with a vote of 7 — 0; and 44 45 46 47 Page 1 of 4 Ordinance 27, 2010 1 WHEREAS, the City Council, as the governing body of the City of Palm Beach 2 Gardens, Florida, pursuant to the authority in Chapter 163 and Chapter 166, Florida 3 Statutes, and the City's Land Development Regulations, is authorized and empowered 4 to consider petitions related to zoning and land development orders; and 5 6 WHEREAS, the City Council has considered the evidence and testimony 7 presented by staff and other interested parties and the recommendations of the various 8 City of Palm Beach Gardens and Palm Beach County reviewing agencies; and 9 10 WHEREAS, based upon such evidence and testimony the City Council has 11 determined that this Ordinance is consistent with the City's Comprehensive Plan based 12 on the following findings of fact: 13 14 1. The proposed rezoning of Residential Low, up to 4 units per acre (RL -2) is 15 consistent with the future land use designation of Residential Low (RL); and 16 17 2. The proposed rezoning is in harmony with the general purpose and intent of 18 the Comprehensive Plan and the Land Development Regulations, and is 19 compatible with the intensity and density of the surrounding, existing, and 20 future land uses; and 21 22 WHEREAS, the City Council deems approval of this Ordinance to be in the best 23 interests of the health, safety, and welfare of the residents and citizens of the City of 24 Palm Beach Gardens and the public at large. 25 26 27 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 28 OF PALM BEACH GARDENS, FLORIDA that: 29 30 SECTION 1. The foregoing recitals are hereby affirmed and ratified. 31 32 SECTION 2. That certain parcel of real property located within the corporate limits 33 of the City of Palm Beach Gardens comprised of approximately twelve and 39/100 (12.39) 34 acres, more or less, in size located at the northwest corner of Hood Road and the Florida 35 Turnpike, informally known as "Parcel 18.A07 ", and currently zoned Palm Beach County 36 Residential Single Family (RS) and Residential Estate (RE) is hereby zoned Residential 37 Low, up to 4 units per acre (RL -2) and is legally described as follows: 38 39 See Exhibit "A ", attached hereto and incorporated herein. 40 41 SECTION 3. The City Manager is hereby authorized and directed to make 42 appropriate changes on the zoning district map of the City to effectuate the purpose of 43 this Ordinance. 44 45 SECTION 4. All ordinances or parts of ordinances in conflict be and the same 46 are hereby repealed. 47 Page 2 of 4 Ordinance 27, 2010 1 SECTION 5. Should any section or provision of this Ordinance or any portion 2 thereof, any paragraph, sentence, or word be declared by a Court of competent 3 jurisdiction to be invalid, such decision shall not affect the validity of the remainder of 4 this Ordinance. 5 34 35 36 37 38 39 40 41 42 43 44 45 46 47 SECTION 6. This Ordinance shall become effective immediately upon the date a final order is issued by the Department of Community Affairs or Administration Commission finding Ordinance 12, 2010 in compliance in accordance with Section 163.3184(1)(b), Florida Statutes, whichever is applicable. No development orders, development permits, or land uses dependent on this amendment may be issued or commence before it has become effective. (The remainder of this page intentionally left blank) Page 3of4 Ordinance 27, 2010 1 PASSED this day of , 2010, upon first reading. 2 3 PASSED AND ADOPTED this day of , 2010, upon second 4 and final reading. 5 6 7 CITY OF PALM BEACH GARDENS FOR AGAINST ABSENT 8 9 BY: 10 David Levy, Mayor 11 12 _ 13 Robert G. Premuroso, Vice Mayor 14 15 _ 16 Joseph R. Russo, Councilmember 17 18 19 Eric Jablin, Councilmember 20 21 22 Marcie Tinsley, Councilmember 23 24 25 26 ATTEST: 27 28 29 BY: 30 Patricia Snider, CMC, City Clerk 31 32 33 APPROVED AS TO FORM AND 34 LEGAL SUFFICIENCY 35 36 37 BY: 38 R. Max Lohman, City Attorney 39 40 41 42 43 44 45 46 47 GAattorney_share \0RDINANCES\2010 \Ordinance 27 2010 - rezoning parcel 18A07.doc Page 4 of 4 Ordinance 27, 2010 EXHIBIT 'AN) LEGAL DESCRIPTION A PARCEL OF LAND LYING IN SECTIONS 27 AND 34, TOWNSHIP 41 SOUTH, RANGE 42 EAST, PALM BEACH COUNTY, FLORIDA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE SOUTH HALF (S '/2) OF THE SOUTHEAST QUARTER (SE '/4) OF THE SOUTHEAST QUARTER (SE %) OF THE SOUTHEAST QUARTER (SE %) OF SECTION 27, TOWNSHIP 41 SOUTH, RANGE 42 EAST, TOGETHER WITH THE EAST HALF (E Y2) OF THE NORTHEAST QUARTER (NE '/4) OF THE NORTHEAST QUARTER (NE Y4) OF SECTION 34, TOWNSHIP 41 SOUTH, RANGE 42 EAST. CONTAINING 539,627 SQUARE FEET OR 12.39 ACRES, MORE OR LESS. CITY OF PALM BEACH GARDENS CITY COUNCIL Agenda Cover Memorandum Meeting Date: December 2, 2010 Resolution 85, 2010 Subject/Agenda Item: Approve the reappointment of two (2) members to the Board of Trustees for the City of Palm Beach Gardens Police Officers' Pension Fund. Pq Recommendation to APPROVE [ ] Recommendation to DENY Reviewed by: Originating Dept.: Costs: Council Action: (Total) City Attorne rtment I D ��i�/lt� [ ]Approved Ju ius Barone [ ] Approved w/ conditions Current FY [ ] Denied R ax min, Esq. Funding Source: [ ] Continued to: Advertised: Finance Administrator Date: [ ] Operating Attachments: Paper: [ ] Other a Recommendation N/A Letter from Bonni S. Allan Owens Jensen, Board of ( x ] Not Required Trustees Attorney • Resolution 85, 2010 Submitted by: Chief of Police Stephen Stepp Affected parties [X] Notified Budget Acct. #: Approved by: [ ] Not required City Mana r Ronal M erris Meeting Date: December 2, 2010 Resolution 85, 2010 Page 2of2 BACKGROUND: The terms of Palm Beach Gardens Police Officers' Pension Fund Trustees David Pierson and Brad Seidensticker will expire on December 19, 2010. Both Mr. Pierson and Mr. Seidensticker have expressed an interest in continuing their service to the City as Trustees to the Police Officers' Pension Fund Board. STAFF RECOMMENDATION: Staff recommends approval of Resolution 85, 2010 as presented. THE LAw OFFICES OF PERRY & LLC ANN H. PERRY BONNI SPATARA JENSEN spery(Mparyjenseniaw.com October 26, 2010 balensen@peryjenseniaw.com FACSIMILE AND FIRST CLASS MAIL Patricia Snider, City Clerk City of Palm Beach Gardens 10500 North Military Trail Palm Beach Gardens, FL 33410 Re: Palm Beach Gardens Police Pension Fund Trustee Terms Our File Number: 0003.0043 Dear Patricia: This office is legal counsel to the Board of Trustees for the Palm Beach Gardens Police Pension Fund. As you know the Trustee terms for Brad Seidensticker and David Pierson will expire on December 19, 2010. Both trustees have expressed their interest in serving another term. This term will be four (4) years, pursuant to Ordinance 2, 2010. If you have any questions or require additional information, please contact my office to discuss further. Sincerely yours, Bonni S. Jensen BSJnb E -Copy: Chairman and Secretary Administrator H:1PBG 0M CIty of PBGtCIerk1T wish 2 sery another terrnmpd 400 EXECUTIVE CENTER DRIVE, SUITE 207❖ WEST PALM BEACH, FLORIDA 33401 -2922 r..._ rnw rnw ..nn -- APPLICATION FOR CRY ADVISORY BOARD /COMMITTEE APPOINTMENT : Pursuant n FS 119.07 the Information provided In this application is considered to be public record, except as provided by law. Q c Name: �i Wad �eY S i dens i C 1�0C� Home Address: �,- G le nco, i r R City: iYears of Residency: / Computer Available JJ_Y'es U No ' 77 Horne Phone: 11 Work Phone: (�'- "j'-y— Cell Phone ( 1 • � a�► Co. c cr` Primary E-mail Address:, n s l � i er r d � Seconda ry E -mail Address Preferred Means of Contact: (!2- M. a i Please place a check next to each board /committee on which you would be interested in serving: Art In Public Places Advisory Board (meets quarterly on the 3rd Tuesday at 5:30 p.m.) Community Aesthetics Board (meets quarterly on the 1st Wednesday at 4:00 p.m.) Parks and Recreation Advisory Board (meets quarterly on the 3rd Monday at 6:00 .m. Planning, Zoning and Appeals Board* (meets monthly on the 2nd Tuesday at 6:00 p.m.) BUdrt Oversight Committee (meets during cycle on the 4th Thursday at 8:30 a.m.) Fire Pension Board (meets semi - monthly as called) Police Pension Board (meets quarterly as called) *Required to Ale a statement of financial interest form If you have checked more than one box, which would be your 1`a Choice 2nd Choice P Choice Are you curter se wing on a Palm Beach G 'dens rd or Committee? (yJ Yes ( j No which one(s) +r? /` ce -�P t1 son z Previous service on City Boards or Committees? ( ) Yes ( L-fNo Which one(s) Date(s) of Service: Are you currently serving on a Palm Beach County Board or Committee? ( ) Yes ( f,,l No _ Which one(s) Previous service on County Boards or Committees? ( ) Yes ( L.)rft Which one(s) Date(s) of Service: Are you able to attend: ( Vfdaytime meetings ( "evening meetings What would you hope to accomplish by participating? r, Present Employer: e Address: J Profession: Position: Are you registered in the State of Florida? ( ) Yes ( ) No Another State ( ) N/A ( ) Are you licensed in the State of Florida? ( ) Yes ( ) No Another State ( ) N/A ( ) Do you possess a City of Palm Beach Gardens occupational license? /VU _ How long have you practiced the above profession? Could your occupation present a confli interest on any subject matter discussed, reviewed or decided upon by the Board or Committee: ( ) Yes ( ) No Please explain: APPLICATION FOR CRY ADVISORY BOARD /COMMITTEE APPOINTMENT (Please check the appropriate boxes.) By code, some Boards/Committees hwe specific requirements for membership. r o Ta -T ea U Pe Are you registered to vote in Palm Beads County? ( 1,4es ( ) No Have you participated in civic or community activities? ( Yes ( )No If yes, Phase plain: 1 un a es, ro and tiro coTmitment to the Boards or Committees to ch 1 have applied. xe/v Signature DAe Now did you loom about the Board or Committee for which you have applied: City's Web site: Community Group: Newspaper (spay) Other. (spay) Prior to submitting an application, you are encouraged to attend one meeting Date attended: Please return the application and resume to: City Clerk 10500 North Military Trail Palm Beach Gardens, FI 33410 (551) 799 -4121 tin aNX/90MM M O aWAWrMWAMMrATtOWAMWATM tat en AVVM W WMW WMTE MI V Visual, Performing or Literary Arts Architect Arts and Cultural ostitution Management Attorney Senior Targeted Activities Engineer Tennis Center Participant Environmental Professional Golf Course Participant Landscape Architect Aquatics Programming Land Surveyor Recreation Proramming Horticulture and Landscaping Adult Sports Projgr!!m!pg Division 1 Building — General Contractor Volunteer from Palm Beach Gardens Youth Athletic Assoc PBGYAA) Division 2 Mechanical, Engineering and Plumbing (MEP) Contractor Special Population Advocate Real Estate Professional Own/operate a business in the City Building Construction Member of Business Development Board Architectural /Urban Planning North Palm Beach County Chamber of Commerce Banker PGA Corridor Association Other Please list below) Accountant r 41ca n c t s a' By code, some Boards/Committees hwe specific requirements for membership. r o Ta -T ea U Pe Are you registered to vote in Palm Beads County? ( 1,4es ( ) No Have you participated in civic or community activities? ( Yes ( )No If yes, Phase plain: 1 un a es, ro and tiro coTmitment to the Boards or Committees to ch 1 have applied. xe/v Signature DAe Now did you loom about the Board or Committee for which you have applied: City's Web site: Community Group: Newspaper (spay) Other. (spay) Prior to submitting an application, you are encouraged to attend one meeting Date attended: Please return the application and resume to: City Clerk 10500 North Military Trail Palm Beach Gardens, FI 33410 (551) 799 -4121 tin aNX/90MM M O aWAWrMWAMMrATtOWAMWATM tat en AVVM W WMW WMTE MI V 11 Glencairn Road H. BRADLEY SEIDENSTICKER PROFILE Financial executive with domestic and international experience in the distribution, manufacharing, and financial services scam. Demonstrated ability to establish and develop f ranee fimMons in complex organizations through strong leadership and skills. Experience in: • Investments • Pension Plans • Tax Qualified Redretnent Plans • Foreign and Domestic Financing • Investor Relations • Capital Planning & Competitive Analysis • Cash Forecasting and Liquidity Management • Interest Rate Risk Management • Cash Management • Public Offerings and Capital Markets EXPERIENCE MORGAN STANLEY DEAN WITTER September 2001 to March 2003 Financial Advisor with Morgan Stanley specializing in pensions and 401(k) plans. CABLEVISION SYSTEMS CORPORATION February 1999 to dune 1999 Consultant to Cablevision Systems Corporation. I developed alternative sauces of financing to acquire $1 billion of telecoamam4cetion equipment_ I also developed a leasing program for computer related equipment along with internal policies and procedures for asset leasing. HENRY SCHEIN, INC. March 1993 - August 1997 T1neaara Created and led the treasury organization, of this dynamic $2.013 ha t emre distribbu n cry. Responsible for the fill corporate treasury fimction consisting of a 6 person staff and a $9.9MM budget. Also responsible for developing and unicating treasury policy and procedures to the 26 domestic and S international subsidiaries. • Directed the redesign of the defined contribution rent plain and implemented a 401(k) savings plan. The resulting redreanerrt benefit plans were useful in attracting new talent to the company and enabled current employees to reap higher returns through equity investments. • Managed the $40 million retirement plan. Selected investments. Prepared and presented regular reviews to the plan trustees. • Directed the creation of an Employee Stock Ownership Plan that enabled employees to triple the value of their account as a result of the company's Initial Public Offering. • Restructured the company's debt through implementation of domestic and foreign revolving credit facilities (S I OOMM +), mortgage financing ($6.2MM), and a New York State Urban Development Corp. loan. • Contributor to the team that successfully completed the company's Initial Public Offering and secondary offecing that raised $196MM in new capital. • Established a corporate Working Capital Committee to more effectively manage the use of capital. • Implemented lockboxes, a treasury work station, and positive pay controlled disbursement that resulted in annual savings in excess of $300,000. • Established a corporate risk reduction policy to insulate the company f -o n product liability lawsuits. • RedueW the company's exposure to interest rate fluctuations through the use of interest rate SWAPS. THE EQUITABLE FINANCIAL COMPANIES 1989 -1993 Aunt Tlnaasnnrtr Recruited to: (1) develop state- of -dwart treasury management systems to process Equitable's cash flow of $10B per year and (2) set corporate policy for treasury related issues. • Overhauled the cash collection and disbursement systems to maximize funds availability resulting in increased investment income to The Equitable. • Overhauled the entire ACH debit process and systems resulting in an nuv ase in the persistency of life insurance policies and annual savings of $500K. The ACH debit system was The Equitable's main collection vehicle that initiated over 7MM transactions per year. • Consolidated controlled disbursement activity and negotiated pricing that resulted in an annual saving of S240K. • Implemented lockbox processing for two product Imes resulting in yearly savings of $ 1.5MM. • Implemented systems and processes to reduce the risk of loss to Equitabie's cash assets including: (1) a match pay controlled disbwsement system, (2) the encryption of all value bearing data files, and (3) the electronic transmission of data files to financial institutions. The result was an 80% reduction in forged checks. COMBUSTION ENGINEERING, INC. 1975-1989 Manager - Corporate Treasxrn 1986-1989 Led the corporate cash function of this $3B capital equipment manufacturer (now part of Asea Brown Boveri). Managed a staff of four people with responsibility for: • Corporate Debt - Developed short term borrowing capacity and managed all short-term debt that averaged $1B a month_ Responsible for implementing a receivable sale agreement of approximately S100MM and a S75MM program to repatriate offshore cash. Through effective sourcing and negotiation, reduced interest costs to a level below that of commercial paper resulting in annual savings of $500K to the corporation. Managed sinking find and covenant requirements of CE's senior debentures. • Corporate Investments - Managed all short-tens investments for the two corporate portfolios. • Banking - Managed the overall relationship of CE's 80 domestic and foreign banks. CE's total bank compensation was $ 1.5MM annually. Reduced total banking costs by $520K a year. • Cash Management - Dmaed CE's cash management operations that serviced CE's 30 business units through a network of 150 accounts. Consolidated the cash management activities of four acquired companies into CE. Maxaga of neawry Services - Power Systems Division 1981-1986 Lgja Lamm Controller 1980-1991 Financial Analyst 1978-1980 Fk"Cial S 1976-1979 kennd d Staff T, l ak ft& Phugranre 1975-1976 EDUCATION M.B.A. in Finance, Northwestern University (Kellogg), Evwwton, IL, 1975 B.S., Mathematics, Georgia Tech, Atlanta, GA, 1973 AFFILIATIONS Trustee of The City of Palm Beach Gardens Police Pension Fund APPLICATION FOR CITY ADVISORY BOARD /COMMITTEE APPOINTMENT Please Note: Pursuant to F1 111.11 the information provided in this application is considered lobe public record, except as provided by law. Name: �/�J t D �, Pt i5R f0 i✓ Home Address: l '"S c 1 Al ` 4OU D!I'" ift149 ")A-V City: Zip: I 3 LI to Years of Residency: Computer Available Yes (_) No Home Phone: () 6z7 `5�9%'( Work Phone: ( ) Cell Phone 2 ED AfC4S7 -,u�T Primary E -mail Address: ElU Secondary E -mail Address Preferred Means of Contact: r 191voc- Please place a check next to each board /committee on which you would be interested in serving: Art in Public Places Advisory Board (meets quarterly on the 3rd Tuesday at 5:30 p.m.) Community Aesthetics Board (meets quarterly on the 1st Wednesday at 4:00 p.m.) Parks and Recreation Advisory Board (meets quarterly on the 3rd Monday at 6:00 p.m.) Planning, Zoning and Appeals Board* (meets monthly on the 2nd Tuesday at 6:00 p.m.) Budget Oversight Committee (meets during budget cycle on the 4th Thursday at 8:30 a.m.) Fire Pension Board (meets semi - monthly as called) Police Pension Board (meets quarterly as called) *Required to file a statement of financial interest form If you have checked more than one box, which would be your: 1" Choice 2nd Choice 3'd Choice Are you currently serving on a Palm each Gardens Board or Committee? ()() Yes ( ) No Which one(s) XCIZ C,,45 � 0 ° 04-4 4 ' Previous service on City Boards or Committees? (/C) Yes ( ) No Which one(s) 44:r' ,A#0 UE Date(s) of Service: 9q7 - Are you currently serving on a Palm Beach County Board or Committee? Which one(s) Previous service on County Boards or Committees? { ) Yes ( ) No Which one(s) Date(s) of Service: Are you able to attend: (1�4) daytime meetings (4) evening meetings What would you hope to a5scomplish by participating? Present Employer: Address: Profession: Position: ) Yes ( ) No Are you registered in the State of Florida? ( )) Yes ( ) No Another State ( ) N/A ( ) Are you licensed in the State of Florida? ( ) Yes ( ) No Another State ( ) N/A ( ) Do you possess a City of Palm Beach Gardens occupational license? /UD How long have you practiced the above profession? Could your occupation present a conflict of interest on any subject matter discussed, reviewed or decided upon by the Board or Committee: ( ) Yes (z No Please explain: 0 9 APPLICATION FOR CITY ADVISORY BOARD /COMMITTEE APPOINTMENT Professional Background (Please check the appropriate boxes.) By Code, some Boards /Committees have specific requirements for membership. Educational Background Diploma, Degree or Certificate Institution Course of Study Are you registered to vote in Palm Beach County? ( ()Yes ( ) No Have you participated in civic If yes, pleas xplain: I under nd t e duties, roieA. Dr community activities? Yes ( )No time commitment to the Boards or Committees to which I have applied. Signature Date How did you learn about the Board or Committee for which you have applied: City's Web site: Community Group: Newspaper (specify) Other: (specify) Prior to submitting an application, you are encouraged to attend one meeting Date attended: Please return the application and resume to: City Clerk 10500 North Military Trail Palm Beach Gardens, FI 33410 (561) 799 -4121 0TT QVdV90AM AND CWMIITT[WAPPUCATWNS /AMUCAT1M FOR MY ADVIS W WAND UPDATE 093110 Visual, Performing or Literary Arts Architect Arts and Cultural Institution Management Attorney Senior- Targeted Activities Engineer Tennis Center Participant Environmental Professional Golf Course Participant Landscape Architect Aquatics Programming Land Surveyor _ Recreation Programming J Horticulture and Landscaping Adult Sports Programming Division 1 Building — General Contractor Volunteer from Palm Beach Gardens Youth Athletic Assoc (PBGYAA) Division 2 Mechanical, Engineering and Plumbing (MEP) Contractor Special Population Advocate Real Estate Professional Own /operate a business in the City Building Construction Member of Business Development Board Architectural Design /Urban Planning North Palm Beach County Chamber of Commerce Banker PGA Corridor Association Other (Please list below) Accountant g4ZeA L L,, 4 \/A A- C_ By Code, some Boards /Committees have specific requirements for membership. Educational Background Diploma, Degree or Certificate Institution Course of Study Are you registered to vote in Palm Beach County? ( ()Yes ( ) No Have you participated in civic If yes, pleas xplain: I under nd t e duties, roieA. Dr community activities? Yes ( )No time commitment to the Boards or Committees to which I have applied. Signature Date How did you learn about the Board or Committee for which you have applied: City's Web site: Community Group: Newspaper (specify) Other: (specify) Prior to submitting an application, you are encouraged to attend one meeting Date attended: Please return the application and resume to: City Clerk 10500 North Military Trail Palm Beach Gardens, FI 33410 (561) 799 -4121 0TT QVdV90AM AND CWMIITT[WAPPUCATWNS /AMUCAT1M FOR MY ADVIS W WAND UPDATE 093110 To: Donna Cannon From: David R Pieson Subject:lob History 11- 19- IOP03:02 RCVD 2/59- Joined the firm of Janney,Aulles and Battles,lnc in Phila, Pa. as a registered representive of the NYSE. After training in Phi la,Pa 1 was assigned to develops business in the Trenton, NJ area. In November of 19601 joined Merrill Lynch & Co in Trenton,NJ. 1 worked there as an account executive Until December 1968 when 1 was sent to Management Training in New York City. In June of 19691 opened the new office in Syracuse,NY and managed that office until December 1976 when I was sent to manage the office in Providence, RI. I managed that office until December 1979 when 1 was sent to manage an office in Boston, MA. 1 then de cided to move to Palm Beach,Fi in June of 1982. In 19851 was asked to manage the Merrill Lynch office in North Palm Beach, Fl. I remained in that office until March of 2000 when 1 decided to retire. Please excuse my typing skills. Z NPIerson urs, trenton RESOLUTION 85, 2010 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA RE- APPOINTING TWO (2) MEMBERS TO THE BOARD OF TRUSTEES OF THE CITY OF PALM BEACH GARDENS POLICE OFFICERS' PENSION FUND; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. WHEREAS, Section 50 -82 of the Palm Beach Gardens Code of Ordinances provides for the appointment of two (2) members to the Board of Trustees of the City of Palm Beach Gardens Police Officers' Pension Fund by the City Council for a terms of four (4) years; and WHEREAS, the City Council wishes to re- appoint the two (2) currently serving City Council appointed members whose terms will expire on December 19, 2010; and WHEREAS, the City Council deems approval of this Resolution to be in the best interests of the health, safety, and welfare of the residents and citizens of the City of Palm Beach Gardens and the public at large. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA that: SECTION 1. The foregoing recitals are hereby affirmed and ratified. SECTION 2. Pursuant to Section 50 -82 of the Palm Beach Gardens Code of Ordinances, David Pierson and Brad Seidensticker are hereby re- appointed as members to the Board of Trustees of the City of Palm Beach Gardens Police Officers' Pension Fund for terms four (4) years, such terms of office shall expire on December 19, 2014. SECTION 3. This Resolution shall become effective immediately upon adoption. Page 1 of 2 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 47 ATTEST: M PASSED AND ADOPTED this day of Patricia Snider, CMC, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY ED R. Max Lohman, City Attorney VOTE: MAYOR LEVY VICE MAYOR PREMUROSO COUNCILMEMBER RUSSO COUNCILMEMBER JABLIN COUNCILMEMBER TINSLEY Resolution 85, 2010 , 2010. CITY OF PALM BEACH GARDENS, FLORIDA An David Levy, Mayor AYE NAY ABSENT \\ pbgsnasWttorney\ attorney_share\RESOLUTIONS\2010 \resolution 85 2010 - reappointments to police pension board. docx Page 2 of 2 W/16001 -7{Y� I. II. III. IV V. VI. CITY OF PALM BEACH GARDENS COUNCIL AGENDA December 2, 2010 7:00 P.M. Mayor Levy Vice Mayor Premuroso Council Member Russo Council Member Jablin Council Member Tinsley PLEDGE OF ALLEGIANCE ROLL CALL ADDITIONS, DELETIONS, MODIFICATIONS: ANNOUNCEMENTS / PRESENTATIONS: ITEMS OF RESIDENT INTEREST AND BOARD /COMMITTEE REPORTS: CITY MANAGER REPORT: VII. COMMENTS FROM THE PUBLIC: (For Items Not on the Agenda, please submit request form to the City Clerk prior to this Item) VIIL CONSENT AGENDA: a. (Staff Report on Page 4, Resolution on Page 6) RESOLUTION 87, 2010 - PURCHASE OF THREE (3) TURF MOWERS. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA APPROVING A PURCHASE AWARD TO WESCO TURF, INC. FOR THREE (3) TURF MOWERS PURUSANT TO AN EXISTING CONTRACT WITH THE STATE OF FLORIDA; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. b. (Staff Report on Page 89, Resolution on Page 91 k RESOLUTION 92, 2010 - IDENTITY THEFT PREVENTION PROGRAM. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA APPROVING AN "IDENTITY THEFT PREVENTION PROGRAM' IN ACCORDANCE WITH THE REQUIREMENTS OF THE FAIR AND ACCURATE CREDIT TRANSACTIONS ACT OF 2003; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. IX. PUBLIC HEARINGS:_(` Designates Quasi - Judicial Hearing) 131;' ORDINANCE 24, 2010 — (2ND READING AND ADOPTION- CONTINUED FROM NOVEMBER 18, 2010) AT&T PLANNED UNIT DEVELOPMENT (PUD). AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM BEACH 4 "0 GARDENS, FLORIDA REZONING CERTAIN REAL PROPERTY WITHIN THE CORPORATE LIMITS OF THE CITY OF PALM BEACH GARDENS, CONSISTING OF ONE (1) PARCEL OF REAL PROPERTY COMPRISED OF ONE (1) PLATTED LOT TOTALING 0.93 ACRES, MORE OR LESS, IN SIZE, LOCATED ON THE NORTH SIDE OF NORTHLAKE BOULEVARD APPROXIMATELY 500 FEET EAST OF NORTH CONGRESS AVENUE, WITH A STREET ADDRESS OF 3005 NORTHLAKE BOULEVARD, INFORMALLY KNOWN AS THE "AT&T PROPERTY"; PROVIDING THAT THIS PARCEL OF REAL PROPERTY, WHICH IS MORE PARTICULARLY DESCRIBED HEREIN, SHALL BE ASSIGNED THE CITY ZONING DESIGNATION OF PLANNED UNIT DEVELOPMENT (PUD) OVERLAY WITH AN UNDERLYING ZONING DESIGNATION OF GENERAL COMMERCIAL (CG -1); PROVIDING THAT THE ZONING MAP OF THE CITY OF PALM BEACH GARDENS BE AMENDED ACCORDINGLY; PROVIDING A CONFLICTS CLAUSE, A SEVERABILITY CLAUSE, AND AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. RESOLUTION 75, 2010 IS A COMPANION ITEM TO ORDINANCE 24, 2010 AND WILL REQUIRE COUNCIL ACTION *RESOLUTION 75, 2010 - AT&T PLANNED UNIT DEVELOPMENT (PUD). A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA APPROVING THE AT&T PLANNED UNIT DEVELOPMENT (PUD) SITE PLAN, AS MORE PARTICULARLY DESCRIBED HEREIN; PROVIDING WAIVERS; PROVIDING CONDITIONS OF APPROVAL; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. b ' -'itaff_Report on Page 141, Ordinance on Pace 157) ORDINANCE 27, 2010 — (1ST READING) REZONING PARCEL 18.A07). AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA REZONING ONE (1) PARCEL OF REAL PROPERTY CONSISTING OF APPROXIMATELY TWELVE AND 39/100 (12.39) ACRES, MORE OR LESS; SUCH PARCEL BEING LOCATED GENERALLY AT THE NORTHWEST CORNER OF THE INTERSECTION OF HOOD ROAD AND THE FLORIDA TURNPIKE, INFORMALLY KNOWN AS "PARCEL 18.A07", AS MORE PARTICULARLY DESCRIBED HEREIN, FROM PALM BEACH COUNTY RESIDENTIAL SINGLE FAMILY (RS) AND RESIDENTIAL ESTATE (RE) TO CITY OF PALM BEACH GARDENS RESIDENTIAL LOW, UP TO 4 UNITS PER ACRE (RL -2) ZONING DISTRICT; PROVIDING FOR REVISIONS TO THE ZONING DISTRICT MAP; PROVIDING A CONFLICTS CLAUSE, A SEVERABILITY CLAUSE, AND AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. X. RESOLUTIONS: a ff Rep -q 17 RESOLUTION 85,2010- POLICE PENSION BOARD REAPPOINTMENTS. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA RE- APPOINTING TWO (2) MEMBERS TO THE BOARD OF TRUSTEES OF THE CITY OF PALM BEACH GARDENS POLICE OFFICERS' PENSION FUND; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. XI. ITEMS FOR COUNCIL ACTION/DISCUSSION: XII. CITY ATTORNEY REPORT: XM. ADJOURNMENT PLEASE TAKE NOTICE AND BE ADVISED that if any interested party wishes to appeal any decision made by the City Council with respect to any matter considered at this public hearing, such interested persons will need a record of the proceedings and may need to ensure that a verbatim record is made, including the testimony and evidence upon which the appeal is to be based In accordance with the Americans with Disabilities Act and .Section 28626, Florida Statutes, persons with disabilities needing special accommodations in order to participate in this proceeding are entitled to the provision of certain assistance at no cost. Please call the City Clerk's Office at 561- 799 -4122 no later than S days prior to the hearing if this assistance is required For hearing impaired assistance, please call the Florida Relay Service Numbers: 800 -955 -8771 (TDD) or 800 -955 -8770 (VOICE). NOTE: All presentation materials must be received by the City Clerk prior to the presentation to the Council. P 1 7'0l S. 7 : Lt r ep CITY OF PALM BEACH GARDENS COUNCIL AGENDA December 2, 2010 7:00 P.M. Mayor Levy Vice Mayor Premuroso Council Member Russo Council Member Jablin Council Member Tinsley I. ✓ PLEDGE OF ALLEGIANCE II. ✓ ROLL CALL III.✓ ADDITIONS, DELETIONS, MODIFICATIONS: IV ✓ ANNOUNCEMENTS / PRESENTATIONS: V. ,/ ITEMS OF RESIDENT INTEREST AND BOARD /COMMITTEE REPORTS: VI. ✓ITY MANAGER REPORT: VII. "COMMENTS FROM THE PUBLIC: (For Items Not on the Agenda, please submit request form to the City Clerk prior to this Item) VIII. CONSENT AGENDA: S a. (Staff Report on Page 4. Resolution on Page 6) RESOLUTION 87, 2010 - PURCHASE OF THREE (3) TURF MOWERS. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA APPROVING A PURCHASE AWARD TO WESCO TURF, INC. FOR THREE (3) TURF MOWERS PURUSANT TO AN EXISTING CONTRACT WITH THE STATE OF FLORIDA; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. b. (Staff Report on Page 89, Resolution on Page 91) RESOLUTION 92, 2010 - IDENTITY THEFT PREVENTION PROGRAM. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA APPROVING AN "IDENTITY THEFT PREVENTION PROGRAM" IN ACCORDANCE WITH THE REQUIREMENTS OF THE FAIR AND ACCURATE CREDIT TRANSACTIONS ACT OF 2003; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. IX. PUBLIC HEARINGS: (* Designates Quasi - Judicial Hearing) a. c-'- *(Staff Report on Page 108, Ordinance on Page 126, Resolution on Page 131) ORDINANCE 24, 2010 — (2 "" READING AND ADOPTION- COINTINUED FROM NOVEMBER 18, 2010) AT &T PLANNED UNIT DEVELOPMENT (PUD). �i AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA REZONING CERTAIN REAL PROPERTY WITHIN THE CORPORATE CONSISTING OF I OINE 11) PARCEL OIF REGAL PROPERTY COMPRISED OF ONE (1) PLATTED LOT TOTALING 0.93 ACRES, MORE OR LESS, IN SIZE, LOCATED ON THE NORTH SIDE OF NORTHLAKE BOULEVARD APPROXIMATELY 500 FEET EAST OF NORTH CONGRESS AVENUE, WITH A STREET ADDRESS OF 3005 NORTHLAKE BOULEVARD, INFORMALLY KNOWN AS THE "AT &T PROPERTY ", PROVIDING THAT THIS PARCEL OF REAL PROPERTY, WHICH IS MORE PARTICULARLY DESCRIBED HEREIN, SHALL BE ASSIGNED THE CITY ZONING DESIGNATION OF PLANNED UNIT DEVELOPMENT (PUD) OVERLAY WITH AN UNDERLYING ZONING DESIGNATION OF GENERAL COMMERCIAL (CG -1); PROVIDING THAT THE ZONING MAP OF THE CITY OF PALM BEACH GARDENS BE AMENDED ACCORDINGLY; PROVIDING A CONFLICTS CLAUSE, A SEVERABILITY CLAUSE, AND AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. RESOLUTION 75, 2010 IS A COMPANION ITEM TO ORDINANCE 24, 2010 AND WILL REQUIRE COUNCIL ACTION *RESOLUTION 75, 2010 - AT &T PLANNED UNIT DEVELOPMENT (PUD). A Lq ,0 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA APPROVING THE AT &T PLANNED UNIT DEVELOPMENT (PUD) SITE PLAN, AS MORE PARTICULARLY DESCRIBED HEREIN; PROVIDING WAIVERS; PROVIDING CONDITIONS OF APPROVAL; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. b *(Staff Report on Page 141, Ordinance on Page 157) ORDINANCE 27, 2010 — (1ST READING) REZONING PARCEL 18.A07). AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA REZONING ONE (1) PARCEL OF REAL PROPERTY CONSISTING OF APPROXIMATELY �' TWELVE AND 39/100 (12.39) ACRES, MORE OR LESS; SUCH PARCEL BEING LOCATED GENERALLY AT THE NORTHWEST CORNER OF THE INTERSECTION OF HOOD ROAD AND THE FLORIDA TURNPIKE, INFORMALLY KNOWN AS "PARCEL 18.A07 ", AS MORE PARTICULARLY DESCRIBED HEREIN, FROM PALM BEACH COUNTY RESIDENTIAL_ SINGLE FAMILY (RS) AND RESIDENTIAL ESTATE (RE) TO CITY OF PALM BEACH GARDENS RESIDENTIAL LOW, UP TO 4 UNITS PER ACRE (RL -2) ZONING DISTRICT; PROVIDING FOR REVISIONS TO THE ZONING DISTRICT MAP; PROVIDING A CONFLICTS CLAUSE, A SEVERABILITY CLAUSE, AND AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. X. RESOLUTIONS: a. (Staff Report on Page 162, Resolution on Pane 172) RESOLUTION 85, 2010 - POLICE PENSION BOARD REAPPOINTMENTS. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA RE- APPOINTING TWO (2) MEMBERS TO THE BOARD OF TRUSTEES OF THE CITY OF PALM BEACH GARDENS POLICE OFFICERS' PENSION FUND; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. XI. "ITEMS FOR COUNCIL ACTION/DISCUSSION: XII. CITY ATTORNEY REPORT: XIII. ADJOURNMENT PLEASE TAKE NOTICE AND BE ADVISED that if any interested party wishes to appeal any decision made by the City Council with respect to any matter considered at this public hearing, such interested persons will need a record of the proceedings and may need to ensure that a verbatim record is made, including the testimony and evidence upon which the appeal is to be based. In accordance with the Americans with Disabilities Act and Section 286.26, Florida. Statutes, persons with disabilities needing special accommodations in order to participate in this proceeding are entitled to the provision of certain assistance at no cost. Please call the City Clerk's Office at 561- 799 -4122 no later than 5 days prior to the hearing if this assistance is required. For hearing impaired assistance, please call the Florida Relay Service Numbers: 800 -955 -8771 (TDD) or 800 -955 -8770 (VOICE). NOTE: All presentation materials must be received by the City Clerk prior to the presentation to the Council. CITY COUNCIL MEETING 12/02/10 PROPOSED ADDITIONS, DELETIONS AND MODIFICATIONS ADDITIONS: UNDER CONSENT New Item c. Resolution 89, 2010 Recognition of Councilmember Russo's twenty -one (21) years of public service. DELETIONS. NONE MODIFICATIONS: NONE 13 CITY OF PALM BEACH GARDENS MEMORANDUM TO: Mayor and City Councilmembers DATE: November 30, 2010 FROM: Kathryn Wilson, Planner THROUGH: Natalie M. Wong, Director of Planning and Zoning r SUBJECT: Ordinance 24, 2010 and Resolution 75, 2010 — AT &T PUD: 3005 Northlake Boulevard CC: Ronald M. Ferris, City Manage R. Max Lohman, City Attorney Patricia Snider, City Clerk The following memorandum is being provided to each Councilmember in order to address certain issues raised at the November 18, 2010, City Council meeting regarding the proposed rezoning of the AT &T property located at 3005 IVorthlake Boulevard. During the public comment portion of the public hearing, Mr. David Freyman asserted that he was the current owner of the property located at 3005 Northlake Boulevard. He requested additional information about the petition and further asserted that he had previously requested approval of a monument sign for the subject property and that such request had been denied. With regard to Mr. Freyman's claims, I offer the following: 1. As of the date of this memorandum, ownership of the subject property/ and the authority to make application for rezoning of same remains in question. According to documents on file with the Division of Corporations, until July 30, 2010, Mr. Freyman was listed as the sole "managing member" of 3005 IVorthlake Boulevard LLC. On July 30, 2010, an amendment to 3005 Northlake Boulevard, LLC was filed. The subject filing removed Mr. Freyman as a member of the LLC and simultaneously added two new members: (1) Northlake Place, LLC (the managing member) and (2) Mr. Robert Deziel (member). Mr. Deziel signed the July 30, 2010, filing which removed Mr. Freyman and added himself and Northlake Place, LLC. It is also important to note that Mr. Deziel is the sole member of Northlake Place, LLC. Normally, such information would indicate that Page 1 of 2 Mr. Deziel has the authority to sign on behalf of the property owner. However, the manner in which the July 30th filing was executed combined with Mr. Freyman's public assertion that he still owns the property has raised additional concerns regarding the legal sufficiency of July 30th filing and who or what entity actually has the right to exercise control over the subject property. In an attempt to address staff's questions, Mr. Deziel has provided an affidavit declaring himself to be the Manager of the property and the sole individual with the authority to process and make decisions regarding the property. He also provided portions of other documents to support his affidavit, but the documents provided were incomplete. The City Attorney has reviewed the documents provided by Mr. Deziel and is currently seeking additional information i-rom him. Therefore, this matter remains unresolved. 2. Mr. Freyman's assertion that a previous request for approval of a monument sign was denied is simply not supported by City records. Pursuant to Sectio, l 28 -285, Table 24 of the City's LDRs, a monument sign is not permitted on those parcels which do not have a minimum lot width of 300 feet. The subject parcel's lot width is less than 300 feet, which is precisely the reason that Mr. Deziel requested a waiver for a monument sign by rezoning the property as a Planned Unit Development (PUD). There is no record of any building permit, permit application, or planning and zoning application from Mr. Freyman or anyone else regarding a previous request for a monument sign for the subject property. However, it is plausible that Mr. Freyman may have called the City to inquire whether a monument sign was permitted or not, and was told that a monument sign would not be permitted under the current code. If the ownership issue is not resolved prior to the December 2, 2010, City Council meeting, staff will be recommending an additional postponement. G: \attorney_share \MEMOS\ATT PUD Ownership Issue - Memo to Council- 11- 30- 10.docx Page 2 of 2 e • �r � P• Ali" r CITY OF PALM BEACH GARDENS MEMORANDUM TO: Mayor and City Councilmembers DATE: December 2, 2010 FROM: Kathryn Wilson, Planne,60 THROUGH: Ronald M. Ferris, City Mana /r SUBJECT: Ordinance 24, 2010 and Resolution 75, 2010 — AT&T PUD CC: R. Max Lohman, City Attorney Patricia Snider, City Clerk Natalie M. Wong, Director of Planning and Zonin Please see the attached documents, which substantiate Robert Deziel's ownership of the property located at 3005 Northlake Boulevard. The documents further clarify that Mr. Deziel has the authority to submit the subject application to the City, and resolves the concerns discussed at the City Council meeting on November 18, 2010. Attachments: Ownership Affidavit Indemnification Letter from David Freyman Davis A. Freyman 140 Vintage Isle Lane Palm Beach Gardens, FL 33418 (301) 523 -2721 Attn: Kate Wilson City of Palm Beach Gardens 10500 N Military Trail Palm Beach Gardens, F133410 RE: AT &T Northlake Retail / PPUD- 09- 12- 000023 Ordinance 24, 2010 / Resolution 75, 2010 Dear Ms. Wilson: As a follow up to my appearance at the last City Council meeting, this letter confirms that Robert E. Deziel is in fact the Managing Member of 3005 Northlake Boulevard, LLC. While I am also a member of the entity, it is Mr. Deziel who is solely responsible for such activities as the zoning application that is currently before the City Council. In addition, this letter confirms that I am 100% in favor of and hereby urge your staff to please continue to support and the City Council to please approve the above - referenced PPUD Application. Please feel free to call me if you have any questions. Sine re , David A. Fr yman CC: Robert E. Deziel Urban Design Studio STATE OF FLORIDA COUNTY OF PALM BEACH ��yy The foregoing instrument was acknowledged before me this / day of /• am"A1,010 by David A. Freyman, who is personally known to me or produced his driver's license as identification. Notary Public - State and County Aforesaid Print Name: C `� t ('i e6&t ✓lGL. t 1 CITY of My Commission Expires: NOTARY PUBLIC -STATE OF FLORIDA -o 'of(;DN' Vicki Friedman QA O Commission #DD718196 Expires: NOV.12, 2011 �a 6 BONDED THRU ATLANTIC BONDING Co., INC Q ZON1N� AFFIDAVIT STATE OF FLORIDA ) ) SS. COUNTY OF PALM BEACH ) BEFORE ME, the undersigned authority, personally appeared ROBERT E. DEZIEL ( "Affiant" ), who, being duly sworn on oath, deposes and says: That the matters set forth herein are true and to Affiant's own personal knowledge. 2. That Affiant is the Manager of NORTHLAKE PLACE, LLC, a Florida limited liability company (the "Company "). Owner "). That the Company is a member of 3005 NORTHLAKE BOULEVARD, L.LC (the "Property That Affiant is the Manager of 3005 NORTHLAKE BOULEVARD, LLC. 5. That the Property Owner has a Zoning Application that is pending before the CITY of Palm Beach Gardens, FL. 6. That attached hereto is a true a copy of the Amended and Restated Operating Agreement for the Property Owner and that the only members of the Property Owner are David Freyman and the Company. 7. The undersigned does hereby agree to indemnify, defend and hold the City of Palm Beach Gardens harmless of and from all loss, cost, damage and expense of every kind, including attorneys fees, which any of said parties shall sustain or become liable for on account of reliance on the statements made herein. 8. That Affiant states that he is familiar with the nature of an oath and with the penalties provided by Florida law for falsely swearing to statements made in an instrument of this nature and that the acknowledges that all parties referred to herein intend to and do in fact materially rely upon the same. FURTHER AFFIANT SAYETH NAUGHT. (SEAL) ROBERT E. DEZIEI. SWORN TO AND SUBSCRIBED before me this 2 nd day of December, 2010, by ROBERT F. DEZIEL, who _X_ is personally known to me or produced h' driver =s license as identification. NOTARY RML1C -State of Florida K 70201 TER Print/Type /S�a`mp Name: Commission Expiration Date: :c : -4C ; : 2_ MOD802096 'aw _XPI.2 ,�9'- u.oan (407) 398-013, _ _„ AMEMDED AND RESTATED OPERATING AGREEMENT OF 3005 NORTHLAKE BOULEVARD, LLC, a Florida limited liability company THIS AMENDED AND RESTATED OPERATING AGREEMENT ( "Agreement ") . is made as of September 1, 2009, between DAVID A. FREYMAN, as Trustee of the David A. Freyman Living Trust under Agreement dated July 27, 1999 ( "Freyman ") and NORTHLAKE PLACE, LLC ( "NL Place ") (Freyman and NL Place are collectively referred to as "Members "). A. On August 22, 2003, Freyman formed a Florida limited liability company pursuant to the Florida Limited Liability Company Act, as amended from time to time (the "Act ") known as 3005 NORTHLAKE BOULEVARD, LLC ( "Company "). B. Freyman is the sole original member of the Company and David Freyman is the sole beneficiary of Freyman. C. The Company is the fee simple owner of a parcel of real property identified as Parcel control Number 52- 43- 42 -18 -18 -001 -0000 and located at 3005 Northlake Blvd, North Palm Beach, FL ( "Property ") D. NL Place has acquired an interest in the Company pursuant to an agreement dated September 1, 2009 between Freyman and NL Place ( "Investment Agreement "), and, in accordance with the Operating Agreement, the Members have agreed to admit NL Place as a Member. E. The Members have agreed to modify and restate the Operating Agrcentent as stated in this Agreement. NOW THEREFORE, IN CONSIDERATION of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and adequacy of which are acknowledged, and in further consideration of the mutual promises and obligations contained herein, the Members, intending to be legally bound, agrees as follows: I RECITALS 1.1 Incorporation of Recitals. The above Recitals labeled A througli D (inclusive) are true and correct and are incorporated into this Agreement. II PURPOSE AND POWERS 2.1 Purpose and Powers. The purpose of the Company is to own, manage and operate the real property located at 3005 Northlake Boulevard Palm Beach Gardens, FL 33403- 1910 ( "Property ") and to manage the lease between the Company and AT &T Mobility, dated , 4W( "Lease ") and in addition any lawful act or activity for which a Limited Liability Company may be formed within the State of Florida). III PLACE OF BUSINESS 3.1 Place of Business. The principal office of the Company shall be 400 Royal Palm Way, Suite 204, Palm Beach, FL 33480, or at such other place as maybe established by the managers of the Company from time to time. 3.2 Mailing Address. The mailing address of the Company shall be 400 Royal Palm Way, Suite 204, Palm Beach, FL 33480, or such other address as may be established by the members of the Company from time to time. IV TERM 4.1 Existence. The Company commenced business on the date of the filing of the Articles of Organization ( "Articles ") with the Department of State of Florida, and shall continue perpetually or until legally terminated. V NAMES AND ADDRESSES OF MEMBERS 5.1 Members. Freyman was the sole initial Member of the Company. Freyman consents to the admission of NIL Place as a Member of the Company. The Members names and addresses are listed on Exhibit A attached as part of this Agreement. VI RIGHTS AND DUTIES OF MANAGERS 6.1 Management. The business and affairs of the Company shall be managed by one or more managers, as designated by the members from time to time, and not by the members directly. The business and affairs of the Company shall initially be managed by one (1) manager. The name of the manager is Robert E. Deziel. The manager shall be the registered agent for the Company in Florida. The managers) shall serve at the pleasure of the members of the Company. Managers shall be appointed, elected, and removed by a "maiority -in- interest of the members ". For the purposes of this Agreement, a "majority -in- interest of the members" means members owning more than fifty percent (50 %) of the then - current percentage or other interest in [lie profits of the Company. If there is more than one (l) manager, each manager shall have equal rights in the management and conduct of the Company's business. 6.2 Limitation on Powers of Managers. Notwithstanding the provisions of Section 6. 1, the managers shall not have the right or power to do any of the acts listed in Section 7.2 below without a vote by the members approving any such acts. 6.3 Reporting. Freyman shall have the right to obtain any and all information regarding the ownership, operation and management of the Lease and the Property. Northlakc Place shall supply any requested information within five (5) business days of a request for such information. The manager shall supply the following infonmation to Freyman on a monthly / quarterly basis: Income Statement, Balance Sheet, Cash Flow. Statement. 6.4 Transfer or Mortat?e of Company Propertv. All real and personal property originally contributed to the Company, subsequently acquired by'the Company by purchase or otherwise, or acquired with Company funds, shall be Company property. Real or personal property owned or purchased by the Company shall be held and owned, and conveyance shall be made, in the name of the Company. When authorized in accordance %vith Section 7.2, instruments and documents providing for the acquisition, mortgage, conveyance or other disposition, of property of the Company shall be valid. and bind the Company if they are executed by one or more managers of the Company. Notwithstanding the foregoing, third parties shall not be obligated to verify that the members have approved any such action and may rely upon instruments made or executed by any one or more of the ►managers. 6.5 Duty of Loyalty. Each manager shall owe a duty of loyalty and a duty of care to the Company and to the members of the Company, as contemplated in Section 608.4225 of the Act, as well as the remaining provisions of the Act, as amended from time to time. 6.6 Liabilitv for Certain Acts. Each manager shall exercise his or her business judgment in participating in the management of the business, operations and affairs of the Company. A manager does not, in any way, guarantee the return of the members' capital contributions or a profit for the members from the operations of the Company. 6.7 Managers Have No Exclusive Duty to Company. A manager shall not be required to manage the Company as his or her sole and exclusive function and he or she (or any manager) may have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any mernber shall have any right, by virtue of this Agreement, to share or participate in such other investments or activities of the manager or to the income or proceeds derived therefrom. 6.8 Liability of Managers. The managers of the Company shall not be personally liable for monetary damages to the Company or any other person for any statement, vote, decision, or failure to act, regarding management or policy decisions, by that manager unless: (a) the manager breached or failed to perform his duties as a manager; and (b) the manager's breach of, or failure to perform, those duties falls within the provisions of Section 608.4228(1)(b) of the Act (or any successor provision of the Act). 6.9 Indemnification of the Managers. Subject to the standards and requirements of, Section 608.4229 of the Act (or any successor provision of the Act), the Company shall indemnify to the fullest extent permitted by law any person who was or is a party or has been threatened to be made a party to any pending or other action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that lie or she is or was a manager of the Company, or is or was serving at the request of the Company. 6.10 Resignation. Any manager of the Company may resign at any cline by giving written notice to the members of the Company. The resignation of any manager shall take effect Upon receipt of notice thereof or at such later time as shall be specified in such notice; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 3 6.11 Removal. At a meeting of the members called expressly for the purpose, all or any lesser number of managers may be removed at any time, with or without cause, by the affirmative vote of a majority -in- interest of the members. 6.12 Vacancies. Any vacancy occurring for any reason in the number of managers of the Company may be filled by the affirmative vote of a majority -in- interest of the members. A manager elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office and shall hold office until the expiration of such term and until his or her successor shall be elected and shall qualify or until his or her earlier death, resignation or removal. 6.13 Compensation. The managers shall serve without compensation, except as may be approved from time to time by all of the members. 6.14 Action Without A Meeting. Any action requiring the consent of the managers under the Act may be taken by written consent without a meeting, subject to the limitations of Section 608.4231 of the Act. 6.15 Proxies. A manager may appoint a proxy to vote or otherwise act for the manager by signing an appointment instrument, either personally or by the manager's attorney - in -fact. VII RIGHTS AND OBLIGATIONS OF MEMBERS 7.1 Limitation of Liability. No member of the Company shall be personally liable for any debts or losses of the Company beyond his or her respective capital contribution, unless otherwise provided in this Agreement. 72 Indemnification. The Company shall indemnify any person who was or is a party defendant or is threatened to be made a party defendant, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company) by reason of the fact that he is or was a Member of the Company, Manager, employee or agent of the Company, or is or was serving at the request of the Company, against expenses (including attorney's fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the Members determine that he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Company, and with respect to any criminal action proceeding, has no reasonable cause to believe his /her conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of "no to Contendere" or its equivalent, shall not in itself create a presumption that the person did or did not act in good faith and in a manner which he reasonably believed to be in the best interest of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was lawful. Notwithstanding the foregoing provision of this Section 7.2, Freyman shall indemnify Northlake Place if it or the Company is a party defendant or is threatened to be made a party defendant, pending or completed action, suit or . proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company) against 4 expenses (including attorney's fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding resulting from actions arising prior to the date hereof, including, but not limited to any contract, environmental (hazardous waste) and /or tort claims. 7.3 Action Requiring Member Approval. Notwithstanding any other provision of this Agreement, the Company shall not take any of the actions described below without the affirmative vote of all of the members: (a) The sale, exchange, mortgage, or other disposition of all or substantially all of the assets of the Company. (This paragraph is not intended nor shall it prevent or prohibit the managers from selling, exchanging or otherwise disposing of the assets of the Company in the usual course of business); (b) The merger of the Company with another entity; (c) The voluntary dissolution of the Company; (d) The amendment of the Articles or this Agreement; (e) The assignment, pledge, transfer, compromise or release any of the claims of or debts due to the Company except on payment in full (including, without limitation, the compromise of any obligation of a member to make a contribution or to return money or other property paid or distributed in violation of the Act); (f) The arbitration or consent to the arbitration of any of the disputes or controversies between the Company and third parties; (g) The making, execution or delivery any assignment for the benefit of creditors, or any bond, confession or judgment, chattel mortgage, deed, guarantee, indemnity bond, surety bond, or contract to sell or contract of sale of all or substantially all of the property of the Company; (h) The admission of additional members to the Company; or (i) The transfer of membership interests to any third parties. (j) The admission of additional members (or other form of ownership interest) to any member of the Company that is an entity, including without limitation, a member that is a corporation, partnership or limited liability company. (k) The transfer of a membership interest (or other form of ownership interest) of any member of the Company that is an entity, including without limitation, a member that is a corporation, partnership or limited liability company. _ ... - VIII( 'MEETINGS OF MEMBERS 8.1 Annual Meetings. The annual meeting of the members shail be for electing managers, appointing other officers and agents for the Company, setting the salaries of managers, officers and other agents (if any), and for transacting any other business which may properly conic before the meeting. Unless otherwise decided by resolution of the members, the annual meeting of the members shall be held on the first Wednesday of August of each calendar year, if not a legal holiday in the state in which the meeting shall be held, and if a legal holiday, then on the next business day thereafter, beginning at 10:00 a.m., or at any other time and place as the members may decide by resolution and designate in the notice of the meeting. If the annual meeting is not held on the day designated in this Section 8.1, the members shall conduct the annual meeting as soon as is convenient. 8.2 Special Meetings. Special meetings of the members, for any purpose or purposes, unless otherwise prescribed by statute, shall be held when called for by any manager, or requested in writing by the members who own at least twenty five percent (25 %) of the then - cturent percentage (or other interest) in the profits of the Company. 8.3 Place of Meetings. All meetings of the members shat l be held within or without the State of Florida as shall be designated in the notice of the meeting given ]WI-suant to this Article 8 or in a duly executed waiver of notice of the meeting. The members may designate any place as the place of meeting for any meeting of the members. If no designation is made, the place of meeting shall be the principal office of the Company. 8A Notice of Meetings. Whenever members are required or authorized to take any action at a meeting, a written notice of the meeting, stating the -place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered no fewer than ten (10) days nor more than sixty (60) days prior to the date set for the meeting, either by hand delivery or by first class mail, to each member entitled to vote at the meeting. If mailed, notice shall be deemed delivered three (3) days after deposit in the United States mar I addressed to the member at his or her address as it appears on the books of the Company, with first class postage prepaid. (Notwithstanding the foregoing, the notice of the annual meeting of the members need not include a description of the purpose for which the meeting is called). 6 8.5 Meeting of all Members. If all of the members shall meet at any time and place, and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting lawful action may be taken. A member's attendance at a meeting: (a) waives objection to lack of notice or defective notice of the meetinu, unless the member at the beginning of the meeting objects to holding the meeting or transaction Of business at the meeting; or (b) waives objection to consideration of a particular matter at the meeting that is within the purpose or purposes described in the meeting notice, unless the member objects to considering the matter when it is presented. 8.6 Record Date. For the purpose of determining members entitled to notice of or to vote at any meeting of members or any adjournment thereof, or members entitled to receive payment of any distribution, or in order to make a determination of members for any other purpose, the date on which notice of the meeting is mailed or the date on which the resolution declaring such distribution is adopted, as the case may be, shall be the record date for such determination of members. When a determination of members entitled to vote at any meeting of members has been made as provided in this section, such determination shall also apply to any adjournment or postponement thereof. 83 Quorum. A majority -in- interest of the members, represented in person or by proxy, shall constitute a quorum at any meeting of members, except as otherwise required by the Act or this Agreement. If a quorum is present, the affirmative vote of a majority) of the interests so represented shall be the act of the members, unless the vote of a greater or lesser proportion or number is otherwise required by the Act, by the Articles of Organization, or b)t this Agreement. All questions regarding the qualifications of votes and the acceptance or rejection of votes shall be decided by the managers. In the absence of a quorum at any such meeting, a majority of the outstanding interests so represented may adjourn the meeting from time to time for a period not to exceed 60 days without further notice. However, if the adjournment is for more than 60 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each member of record entitled to vote at the meeting. At such adjourned meetin; at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. 8.8 Proxies. At all meetings of members, a member may vote in person or by proxy executed in writing by the member or by a duly authorized attorney -in -fact. Such proxy shall be filed with the managers of the Company before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. 8.9 Action by Members Without a Meeting. Action required or permitted to be 11 taken at 'a meeting of members may be taken without a meeting, without prior notice, and - without a vote, if consents in writing, setting forth the action so taken, are signed by the members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meetin; at which all members were present, but in no event by vote of less than a majority -in- interest of the owners. The record date for determining members entitled to take action without a meeting shall be the date the first member signs a written consent. Within ten (10) days after obtaining authorization of the members by written consent, notice must be given of the action so taken to those members who have not consented in writing or who are not entitled to vote on the action. 8.10 Telephone Meetings. Members may participate in and hold meetings by rneans of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such meeting shall constitute attendance and presence in person at such meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of all business on the ground that the meeting is not lawfully called or convened. 8.11 Waiver of Notice. When any notice is required to be given to any member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice. 5.12 Weiehtine of Votes. The members shall vote in proportion to their then - current percentage (or other) interests in the profits of the Company owned by all of the members IX CONTRIBUTIONS TO THE COMPANY, CAPITAL ACCOUNTS, AND LOANS 9.1 Capital Contributions. Contributions of members may be in the form of cash, property, or services rendered, or a promissory note or other obligation to contribute case or property or to perform services. Each member shall contribute such amount as is set forth in Schedule A_hereto as his or her initial capital contribution. 9.2 Membership Interests. The respective ownership interests of the members in the Company shall be as set forth below, however the allocation of profits and losses between the members, shall be determined in accordance with Article X of this Agreement: Member Percentage Ownership Interests David A. Freyman, as Trustee of the David A. Freyman Living Trust under Agreement Dated July 27,1999 8 Northlake Place, LLC 50% 9.3 Capital Accounts. (a) A separate capital account will be maintained for each member. Each member's capital account will be increased by (1) the amount of money contributed by such member to the Company; (2) the fair market value of property contributed by such member to the Company (net of liabilities secured by such contributed property that the Company is considered to assume or take subject to under Section 752 of the Internal Revenue Code); and (3) the amount of Company income, gain, specially allocated items of revenue and expense in this Agreement and net profits allocated to such member. Each member's capital account will be decreased by (i) the amount of money distributed to such member by the Company; (2) the fair market value of property distributed to such member by the Company (net of liabilities secured by such distributed property that such member is considered to assume or take subject to under Section 752 of the Internal Revenue Code); (3) allocations to the member of Company separately stated expenditures that are not deductible in computing the Company's net rental real estate income (loss) and are not capital expenditures; and (4) allocations to the member of Company losses and deductions. (b) In the event of a permitted sale or exchange of an interest in the Company, the capital account of the transferor shall become the capital account of the transferee to the extent it relates to the transferred interest. (c) Upon liquidation of the Company (or any member's interest), liquidating distributions will be made in accordance with Section 10.3(c). Liquidation proceeds will be paid to a member upon closing of a sale of the Property, or the purchase of a member's interest, whichever is applicable. 9.4 No Demand of Member Capital. A member shall not be entitled to demand or receive from the Company the liquidation of his or her interest in the Company until the Company is dissolved in accordance with the provisions hereof or other applicable provisions of law. No member shall be entitled or required to make capital contributions to the Company oche,- than as provided in this Agreement. No interest shall be paid on initial or any subsequent capital contributions to the Company. 9.5 Call for Funds. The members recognize that the income produced by the Company's operations may be insufficient to pay the Company's operating costs and expenses. If additional funds are required to pay such operating costs, (lie additional funds required shall be contributed by the members in the following manner: (a) Freyman shall be entitled to all revenues and shall be responsible for all expenses of the Company accruing prior to the date of admission of NL Place as a member of -- . _ _ . - -- -- the Company. . (b) Commencing with the date of admission of NL Place as a member, NL Place shall be solely responsible for all costs associated with the Lease. Freyman shall be solely responsible for the preparation and filing of the annual income tax returns for the Company at no cost to the Company until such. time that the No Further Action Letter is obtained and that the associated tax credits are no longer part of the Company's tax return. Thereafter, the preparation of the annual income tax returns shall be by such accounting firm as is approved by a majority - in- interest of the members and the cost of such preparation shall be shared by the members in their membership interests. The cost of filing of the annual report required to be filed with the Florida Secretary of State for the Company shall be shared by the members in their membership interests. Freyman shall continue to be responsible for the environmental cleanup costs and shall receive all revenue and pay all expenses relating to litigation between the Company and tenants occupying the Property prior to the date of this Agreement. 9.6 Limitation of Liabilitv. No member of the Company shall be personally liable for any debts or losses of the Company beyond his or her respective capital contribution, Unless otherwise provided in this Agreement. X ALLOCATIONS AND INCOME TAX 10.1 Allocations of Profits and Losses from Operations. Except as may be required by Section 704(c) of the Internal Revenue Code and as otherwise specially allocated among the members under this Article X and Section 9.3(a), the net real estate income (loss) of the Company for each fiscal year beginning on January 1, 2010 shall be allocated among the members in proportion to the distribution of gross rentals received under the Lease as provided in Section 10.3(a). The existing annual depreciation expense on the building of'@Wshall be allocated solely to Freyman. Annual depreciation expenses for tenant improvement costs under the Lease shall be allocated among the members in proportion to their respective contributions toward the cost of the tenant improvements Freyman and the balance of such costs by NL Place). All deductions for environmental cleanup costs and all revenue and expense derived from litigation between the Company and tenants occupying the Property prior to the date of this Agreement shall be allocated solely to Freyman. Any credits available for income tax purposes shall be allocated among the members in like fashion, other than tax credits available to the Company under applicable tax laws for environmental cleanup costs, which costs shall be allocated solely to Freyman. All revenue and expense through 2009 shall be allocated to Freyman. The foregoing sentence notwithstanding, real estate taxes from the date of admission of NL Place as a member until the date AT &T is responsible for payment of such taxes under the Lease shall be shared by the members in their membership interests, 10.2 Allocations of Profits and Losses from Sale. (a) In the event of a sale of the Property by the Company, the amount of any depreciation recapture on the building required to be recognized as income under the Internal Revenue Code ( "IRC ") shall be solely allocated to Freyman. (b) In the event of a sale of the Property by the Company, the amount of any H depreciation recapture on the tenant improvements required to be recognized as income under the internal Revenue Code ( "IRC ") shall be allocated among the members in the same ratio as their respective contributions to the Company to pay for the tenant improvements. (c) In the event of a sale of the Property by the Company, the amount of any income realized on a sale of the Property, other than depreciation recapture, shall be solely allocated to NL Place. 10.3 Distributions. (a) Freyman. Freyman shall receive a priority distribution ( "Priority Distribution "), without offset or deduction, from the gross rentals received under the Lease in the an Lint o�Mer annum apital contribution by Freyman in Schedule A times commencing with the receipt of rent under the Lease and continuing for the balance of the first five (5) years of the initial Lease term andjll@W per annum capital contribution by Freyman in Schedule A times4during the second years of the initial Lease term, which amount shall be payable to Freyman in monthly installments o21jjjjWnd respectively; (b) NL Place. After the Priority Distributions are made to Freyman any remaining cash flow of the Company received under the Lease may be distributed to NL Place: (c) Sale or Dissolution /Liquidation Distributions. Upon a sale of the Property, net proceeds shall be distributed to the members as follows: (i o Freyman (less any documentary stamps due on this amount); and (ii) any remaining alance to NL Place. 10A Limitation Upon Distributions. No distribution, other tlVn the Priority Distribution, shall be declared and paid if, after the distribution is made: (a) the Company would be unable to pay its debts as they become due in the usual course of business, or (b) tiie fair market value of the Company's total assets would be less than the sum of its total liabilities plus the amount that would be needed, if the Company were to be dissolved and terminated at the time of the distribution, to satisfy the preferential distribution rights of the Company's members accrued through such dissolution and termination. 10.5 Accounting Principles. The profits and losses of the Company shall be determined in accordance with accounting p►inciples applied on a consistent basis under the method of accounting used by the Company for federal income tax purposes. 10.6 Interest on and Return of CnDital Contributions. No member shall be entitled to interest oil his or her capital contribution or to return of his or her capital contribution, except as otherwise specifically provided for herein. 10.7 Returns and Other Elections. The managers shall cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Internal Revenue Code and all other tax returns deemed necessary and required in each jurisdiction in which the Company does business. Copies of such returns, or pertinent inforniation therefrom, shall be furnished to the members within a reasonable time after the end of the Company's fiscal year. XI TRANSFERABILITY . 11.1 Membership Certificates. The Company shall have the power to issue certificates of membership interest in registered form representing ownership interests in the Company. The denominations of the certificates shall correspond to the amount of capital contributed by the member to the Company. The certificate shall be transferrable or interchangeable on presentation at the office of the Company, properly endorsed or accompanied by an instrument of transfer and executed by the member or his or her authorized attorney, together with payment of any tax or governmental charge imposed upon the transfer of such certificates. The Company shall replace any mutilated, lost, stolen or destroyed certificate on proper identification, indemnification satisfactory to the managers, and payment of any charges inctured in the replacement. On a return of all or any portion of the capital of the Company contributed by a member holding a certificate, the member shall surrender the certificate(s) for appropriate adjustment prior to receipt of a return of his or her capital contribution. 11.2 Transfer of Member's Interest: An interest of a member of the Company may be transferred or assigned by (a) transfer of a certificate, if certificates have been issued by the Company, or (b) by written assignment or any other manner sufficient to transfer personal property under applicable law. However, if all of the remaining members of the Company do not approve of the proposed transfer or assignment by written consent (which consent may be withheld in their sole discretion), (a) the transferee of the interest of the member shall have no right to participate in the management of the business and affairs of the Company or'to become a member of the Company; (b) the transferee shall be entitled to receive only the share of profits or other compensation by way of income and the return of capital contributions to which the transferring member would otherwise be entitled; and (c) the transferring member shall cease to be a member and to have the cower to exercise any rights or powers of a member, as to the membership interest transferred or assigned. 11.3 Liability. Notwithstanding the foregoing, an assignee who becomes a member is liable for the obligations of the assigning member to make and return contributions as provided in Section 608.4211, Florida Statutes, and for wroneful distributions as provided in Section 608.428, Florida Statutes. Additionally, if an assignee of a member becomes a member, the assigning/transferring member is not released from liability to the Company under Sections 608-42) 1, .4228 and .426, Florida Statutes. X11 XII. ADDITIONAL AND SUBSTITUTE MEMBERS 111 Admission of New Members. Additional members maybe admitted to the Company only upon the written consent of all of the members. Any new member shall be required to execute an agreement to be bound by the temis and provisions of this A;reernent. Additional members in the Company shall be admitted by the sale of new Company interests for such consideration as all of the members shall determine, whereupon the respective percentage 12 ownership interests -of the members in the Company shall be adjusted to reflect the contribution of such additional capital by the new member, 12.2 Allocations to New Members. No additional or substitute member shall be entitled to any retroactive allocation of losses, income or expense deductions incurred by the Company. The managers may, at their option, at the time an additional or substitute member is admitted, close the Company books (as though the company's tax year had ended) or make pro rata allocations of loss, income and expense deductions to an additional or substitute member for that portion of the company's tax year in which an additional or substitute member was admitted, in accordance with the provisions of Section 706(d) of the Internal Revenue Code and the Treasury Regulations promulgated thereunder. XI11 DISSOLUTION AND TERMINATION 13.1 Dissolution. The Company shall be dissolved upon the unanimous written agreement of all of the members. So long as the Company continues to have at least one (1) remaining member, the Company shall not be dissolved upon the death, retirement, resignation, expulsion, bankruptcy, or dissolution, of a member, or upon the occurrence of any other event which terminates the continued membership of a member in the Company. 13.2 Liquidation. On the Company's dissolution the manager as the liquidating agent For the Company will proceed to make a full and general accounting of the assets and liabilities of the Company, liquidate the assets of the Company, discharge its liabilities, and otherwise wind up the affairs of the Company. In settling accounts after dissolution, the liabilities of the Company shall be entitled to payment in the following order: (a) to pay or provide for the payment of all Company's liabilities and liquidating expenses and obligations (b) to the members as follows: (a to Freyman (Freyman shall pay for the documentary stamps, if any, required on due to the sale of the real estate or the assignment of his membership interest to NL Place or any other party); and (b) any remaining balance to NL Place; provided, however, if any member extended a loan to a defaulting member under Section 9.7 above, that loan shall be repaid in full from the proceeds otherwise payable to the defaulting member, prior to any payment hereunder to the defaulting member. 13.3 Articles of Dissolution. When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining Property and assets have been distributed to the members, articles of dissolution shall be executed and filed with the Florida Secretary of State. Thereafter, the existence of the Company shall cease, except for the purpose of suits, other proceedings and appropriate action as provided by law. The managers shall thereafter be trustee for the members and creditors of die Company and as such shall have authority to distribute any Company property discovered after dissolution, convey real estate and taken such other action as may be necessary on behalf of and in the name of the Company. XIV RECORDS 13 14.1 Records to Be Kept. The Company shall keep at its registered office the following records: (a) A current list of the full names and last known business, residence or mailing addresses of all members and managers. (b) A copy of the Articles and all certificates of amendments thereto, to gcther with executed copies of any powers of attorney pursuant to which any certificate was executed. (c) Copies of the Company's federal, state and local income tax returns and reports, if any, for the three (3) most recent years. (d) Copies of this Agreement, and any amendments thereto. (e) Copies of any effective regulations and any financial statements of the Company for the three (3) most recent years. (f) A writing setting out: (1) the amount of cash and a description and statement of the agreed value of other property or services contributed by each member and which each member has agreed to contribute; (2) the times at which or events on the happening of which any additional contributions agreed to be made by each member are to be made; and (3) any events upon the happening of which the Company is to be dissolved and its affairs wound up. 14.2 Inspection of Records. The Company shall provide ► nembers and their agents and attorneys access to the Company's records at the Company's principal office or other reasonable locations as may he established by the managers from time to time. The Company shall provide former members and their agents and attorneys access for proper purposes to records pertaining to the period during which they were members. The right of access provides the opportunity to inspect and copy records during ordinary business hours, at the expense of the member or former member wishing to inspect and /or Apy. The Company shall furnish to members, and to legal representatives of decreased members or members under legal disabilities: (a) Without demand, information concerning the Company's business or affairs reasonably required for the proper exercise of the member's rights and performance of the member's duties under this Agreement and /or the Act; and (b) On demand, other information concerning the Company's business or affairs, except to the extent the demand or information demanded is unreasonable or otherwise improper under the circumstances. Each manager shall have the right to examine all infortation and records of the Company for a purpose reasonably related to his or her position as a manager. XV MISCELLANEOUS PROVISIONS 14 15.1 Books of Account and Records. Proper and complete records and books of account shall be kept or shall be caused to be kept by the managers in which shall be entered fully and accurately all transactions and other matters relating to the Company's business in such detail and completeness as is customary and usual for businesses of the type engaged in by the Company. Such books and records shall be maintained in accordance with accounting principles applied on a consistent basis under the method of accounting used by the Company for federal income tax purposes. 15.2 Waiver of Action for Partition. Each member irrevocably waives during the term of this Company any right that he or she may have to maintain any action for partition with respect to the property of the Company. 153 Amendments. Any amendment to this Agreement may be proposed to the members by any member. A vote on an amendment to this Agreement shall be taken within thirty (30) days after notice thereof has been given to the members unless such period is otherwise extended by applicable laws, regulations or agreement of the members. A proposed amendment shall become effective at such time as it has been approved by all of /a maLori,ty -in.= interest of the members. except that an amendment reducing a member's interest is effective only with that member's consent. 15.4 Construction. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders and vice versa. 15.5 Headings. The headings in this agreement are inserted for convenience only and arc in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision hereof. 15.6 Entire Agreement. This Agreement represents the entire understanding and agreement between the patties as to the subject matter hereof and supersedes all other negotiations, understandings and representations (if any) made by and between the parties. 15.7 Further Assurances. The parties will from time to time execute and deliver any documents and do all matters and things which are convenient or necessary to more effectively and completely carry out this Agreement's intentions. 15.8 Binding Effect. All of the tenns and provisions of this Agreement are binding upon, inure to the benefit of, and are enforceable by the parties and their respective administrators, executors, legal representatives, heirs, successors and permitted assigns. 15.9 Severability. If any provision of this Agreement or any provision of any other Agreement entered into pursuant to this Agreement is contrary to, prohibited by or deemed invalid under applicable law or regulation, only that provision will be inapplicable and deemed omitted to the extent it is contrary, prohibited or invalid, but the remainder will not be invalidated and will be given full force and effect so far as possible. 15.10 Survival. All covenants, agreements, representations and warranties made in this Agreement or otherwise made in writin; by any party pursuant to this Agreement will survive 15 the execution and delivery of this Agreement and the consummation of the transactions contemplated. 15.11 Waivers. The failure or delay of any party at any time to require performance by another party of any provision of this Agreement, even if known, will not affect the right of that party to require performance of that provision or to exercise any right, power or remedy, and any waiver by any party of any breach of any provision of this Agreement should not be construed as a waiver of any continuing or succeeding breach of provision, a waiver of the provision itself, or it waiver of any right, power or remedy under this Agreement. No notice to or demand on any party in any case will, of itself, entitle a party to any other or further notice or demand in similar or other circumstances. 15.12 Specific Performance. Each of the parties acknowledges that damages at la%v would be an inadequate remedy if this Agreement is not specifically enforced. Therefore, in the event of a breach or threatened breach by any party of any provision of this Agreement, then the other parties will be entitled, in addition to all other rights or remedies, to injunctions restraining the breach, without being required to show any actual damage, and /or to a decree for specific performance of the provisions of this Agreement. 15.13 Jurisdiction and Venue. The parties acknowledge that a substantial portion of negotiations, anticipated performance and execution of this Agreement occurred or will occur in Palm Beach County, Florida, and, therefore, without limiting the jurisdiction or venue of any other federal or state courts, each of the parties irrevocably and unconditionally (a) agrees that any suit, action or legal proceeding arising out of or relating to this Agreement will be brought in the courts of record of the State of Florida in Palm Beach County or the court of the United States, Southern District of Florida; (b) consents to the jurisdiction of each court in any suit, action or proceeding; and (c) waives any objection which it may have to the laying of venue of any suit, action or proceeding in any of the courts. 15.14 Enforcement Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party or parties will be entitled to recover reasonable attorneys fees, court costs and all expenses even if not taxable as court costs (including, without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or proceeding, in addition to any other relief to which such patty or parties may be entitled. 15.15 Remedies Cumulative. No remedy in this Agreement conferred upon any party is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and will be in addition to every other remedy given here or now or existing in the future at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power or remedy will preclude any other. 15.16 Counterparts. This Agreement may be executed in one or more counte►Parts, each of which will be deemed an original, but all of which together will constitute one and the same Instrument. 16 15.17 Governin.e Law. This Agreement and all transactions contemplated by this A- reement will be governed by, and constived and enforced in accordance with, the internal laws of the State of Florida without regard to principles of conflicts of laws. 15.18 Independent Counsel. The parties have received independent advice and counseling regarding the preparation and subject matter of this Agreement and all the ternis and conditions it contains. This Agreement shall not be construed more strongly for or against any party, regardless of which party is deemed to have drafted the Agreement. 15.19 TIME IS OF THE ESSENCE. THE PARTIES AGREE AND ACKNOWLEDGE THAT TIME SHALL, BE OF THE ESSENCE UNDER THiS AGREEMENT. 15.20 Expiration of Dates. If the date of expiration of any period of time or the date for the performance of any act or the satisfaction of any condition, whether specified or determined by formula or calculation, under this Agreement occurs on a Saturday, Sunday or legal holiday in the State of Florida, then such date shall automatically be extended to the next following business day in Florida. 15.21 Facsimile. Facsimile signatures to this Agreement or any notices sent pursuant to this Agreement shall be deemed hereby for all purposes to be originals. 1522 No Delegation of Authority. Except in accordance with the assignment or transfer of a member's interest in the Company as contemplated in this Agreement, no member (including any manager member) shall have the power or authority to delegate to anv other person or entity the rights and powers to manage and control the business and affairs of the Company. 15.23 Notices. (a) All notices, requests, consents and other communications required or permitted to be given under this Agreement will be in writing (including telefax or telecopy) and shall be sent by certified mail, postage prepaid, return receipt requested, or shall be hand delivered or delivered by a recognized national overnight courier service, or shall be sent by electronic communication (whether by telefax, or telecopy), addressed as follows: If to David A. Freyman: David A. Freyman, as Trustee 140 Vintage Isle Lane Palm Beach Gardens, FL 33418 Fax No.: Email: davidfi•cvman/ valioo.com Tax ID: _ If to Northlakc Place, LLC: If to the Company: 3005 Northlake Boulevard, LLC 400 Royal Palm Way, Suite 204 Palm Beach, FL 33480 Email: Tax ID: _ ___ If to Robert E Deziel: 17 400 Royttil Pala, Way, Suite 204 Palm Beach, FL 33480 Fax No.: Email: Tax ID: 400 Royal Palm Way, Suite 204 Palm Beach, FL 33480 Fax No.: Email: red@dezielcompany.com Tax ID: or to any other address or addresses as any party may designate from time to time by notice given in accordance with this Section. Any such notice will be deemed delivered: (a) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authority as not deliverable, as the case may be if mailed, (b) on the date delivered by personal delivery, (c) on the date of delivery by a recognized national overnight courier service, or (d) on the date of transmission if sent by electronic communication. (b) Notwithstanding the foregoing, Section 8.4 shall govern the manner of providing notice to members of membership meetings IN WITNESS WHEREOF, the Member has made and executed this Agreement on the date Gist above written. WITNESSES: ..........� nt/Type Name o Print /Type Name of Witness) i 18 "M •MB R" of DAVID A.'F�AN, as Trustee of the David A. Freyman Living Trust under Agreement dated July 27, 1999 N QRT44L5K E PLACFy/LLC By: Robert E. Dezei I, Managing Member MEMBER NAME David A. Freyman, as trustee of the David A. Freyman Living Trust under Agreement Dated July 27, 1999 Northlake Place, LLC SCHEDULE A INITIAL CAPITAL CONTRIBUTION 19 PERCENTAGE INTEREST 50' %u 50' %o XI a jiv Aisc -mj—s( lay c,�17 C"Vaci I- . ps CITY OF PALM BEACH GARDENS MEMORANDUM TO: Mayor and Council FROM: Ron Ferris, City Manager 6�ro SUBJECT: Ernie Volonte Memorial Information DATE: 12/01/2010 At the November 18, 2010, City Council Meeting, the Council acknowledged the unfortunate passing of one of the City's most active volunteers, Ernie Volonte. As many of you are aware, Mr. Volonte served on the City's Planning, Zoning and Appeals Board and the Recreation Advisory Board. He also worked as a poll worker during elections, volunteered at many special events and was an avid golfer, often being found playing the City's course. In remembrance of Mr. Volonte, staff offers the following three (3) ideas to memorialize his service and dedication to this City: • At the City's municipal golf course, a memorial plaque will be placed near the flag pole, between the first and tenth tee box. • At City Hall, a brick paver will be dedicated to Mr. Volonte. • Finally, a tree will be planted in his honor at the Golf Course. Should you have any further questions, please do not hesitate to contact my office at 799.4112. CITY OF PALM BEACH GARDENS CITY COUNCIL Agenda Cover Memorandum Meeting Date: December 2, 2010 Resolution 89, 2010 SubjectlAgenda Item: In recognition of Councilmember Russo's twenty -one (21) years of public service. pQ Recommendation to APPROVE I Recommendation to DENY Reviewed by: Originating Dept_: Costs:; Council Action: (Total) City Clerk City Attorney J.-Y—W [ ] Approved Z $ Patricia Snider Current FY ( I Approved w/ conditions Max,,Mnan, Esq., [ ] Denied Funding Source: [ ] Continued to: Advertised: NA Date: [ ] Operating Attachments: Paper: Ix 1 Other . Resolution 89, 2010 [ x I Not Required Submitted by: Department Director Patricia Snider Affected parties [ ] Notified Budget Acct. #: Approved by: City Ma r i [ ] Not required Rona M. F rris Meeting Date: December 2, 2010 Resolution 89, 2010 Page 2 of 2 BACKGROUND: The Florida League of Cities, Inc. has recognized Councilmember Russo for his twenty -one (21) years of public service in Florida, and the City of Palm Beach Gardens would also like to recognize Councilmember Russo's years of service and dedicated commitment to the citizens of Palm Beach Gardens. Mr. Russo first became a City of Palm Beach Gardens councilmember on March 16, 1989, and has been serving ever since. Twelve (12) of these twenty -one years (21) have been served as Mayor: March 18, 1993, to March 17,1994; March 16, 1995, to March 21,2002; March 17, 2005, to March 20, 2008; and most recently March 19, 2009, to March 18, 2010. STAFF RECOMMENDATION: Staff recommends approval of Resolution 89, 2010 as presented.