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Agenda 02-16-07 FEBRUARY 16,2007 DENSITY . 20 DUA . 20% workforce housing per pending City guidelines . Allocated by developer across entire site . No high rise (3 stories or less) on west or adjacent to existing residential . Quality development monetary incentive by City/CRA-$ (See "CITY/CRA/COUNTY FUNDING" below) LAND ACQUISITION PHASE . Complete acquisition by 7/1/07 . City/CRA property conveyance to developer in escrow with release contemporaneous with closing on last developer acquired property . City/CRA property reverts to City/CRA on 7/2/07 if developer fails to acquire 100% of property within entire 26 acre project area . City/CRA will suspend all land acquisition efforts . MLK redevelopment project efforts end on failure to consolidate land . If developer fails to acquire project property City/CRA have 90 day option to purchase developer owned land or take assignment of pending contract at cost. RELOCATION COSTS . Limit to residential and institutional properties . Limit to properties acquired at appraised value plus 10% CITY PLANS/PERMIT PROCESSING . City will appoint facilitator SEQUENCE OF DEVELOPMENT . Master Plan submission- 10/1/07 CITY/CRA/COUNTY FUNDING · The City/CRA and possibly the County would provide funding to the developer to achieve the 20% du/20% workforce housing target. The developer is responsible for calculating the amount and to suggest methods and timing of payments. Contributions may include the City and CRA making land available to the developer and other contributions as suggested by the developer. MEMORANDUM OF MEETING DATE: J / / tt>/o 7 I ' LOCATION: fA~ of D6-<-rtzj)V &u.dv SUBJECT: C~ k A - III L ~" START TIME: g ,i S-c> 4~{. END TIME: ATIENDEES: NAME \J ;]ftll (~/~ L/ ~Vl""~~("~~c;.~er IJ \.,; ,0 ~ Bc~ ~'!:: (:IC It- /4 -I-/~J r ~ ~c1lV>\ TITLE _ ('1ft! 1T/7tj ./ / C\-7 ~v? ce~ PHONE# SJ/ ly) -~t/50 c;;b ( - 7Lt ~- CoD I 0 5lq\- 1~1- ~S(p 5-( / - t: Ye> (, J :(c M~vJ S"6l 163 702'1 C /~ cJl.~g f(/-- t736-661f'7 A ~^NL~ Q ~rr 9<;"\ 811-10\.(' Bfu At) yvt,~<.S \L ( 11>1(' t-!' {(r1C C p\al/I -rf (0" SC? {. oJ.-6J-.?:J- 33 S& 1 - 7lfd -(Ps7~ C6R It' "d'i((f{r IA /'--01,- /1vfYtJ/L HEARTOFBOYNTONCO~T MARTIN LUTHER KING CORR! G~ BOYNTON BEACH, FLORIDA DEVELOPMENT AND DISPOSITION AGREEMENT BY AND AMONG CITY OF BOYNTON BEACH ("City") BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY ("CRA") AND INTOWN PARTNERS, LLC ("Developer") Dated as of 02/15/07 434677.5 TABLE OF CONTENTS I. Definitions....................................................................... II. The Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Regulatory Approvals............................................................ IV. Effectiveness, Parties' Obligations, Default......... ......................... V. Project Representatives, Key Personnel, Project Administration... .. ..... VI. Relocation Assistance Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . VII. Acquisition of Third-Party Properties and City/CRA Land Sales Transaction...... ...... ........................................................ .... VIII. Developer Commitments......................................................... IX. Financing... ..... .......... ............... ......... ......... ... ............... " '" . X. Project Construction, Operation and Management Requirements. . . . . . . . .. XI. Omitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... XII. Community Development District........ . ......... ..... ...... ....... ...... .. .. XIII. Transfers and Assignments....................................... ............... XIV. Damage, Destruction and Restoration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . XV. Condemnation. ..... ........... .. ....... . ... ....... .. . . ............. ... ...... ....... XVI. No Subordination.................................................................. XVII. Requirements.... .. . .. .. . .. . . . . . . . . . . .. . . . . . .. . . . . . . . . . . . . .. . . . . . .. . . . . .. .. . . . . . . .... XVIII. No Liability for Injury or Damage, Etc... .. . . .. . .. ..... .... ... ...... .... . . ...... XIX. Representations and Warranties... ...... ... ... ... ... ...... ..... .... ... ... ........ XX. Omitted...... ... ........ .......... ... ......... XXI. Notices, Consents and Approvals. ......... ....... ............. ... ...... ......... XXII. Indictment, Investigations, Etc...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . XXIII. Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... XXIV. Miscellaneous......................................................... . . . . . . . . . . . . .. 434677.5 Page 2 Page 8 Page 9 , Page II Page 17 Page 18 Page 19 Page 23 Page 24 Page 25 Page 31 Page 32 Page 32 Page 33 Page 33 Page 33 Page 34 Page 35 Page 36 Page 39 Page 40 Page 42 Page 42 Page 43 Exhibit A Exhibit A-I Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit I Exhibit J Exhibit M Exhibit N Exhibit 0 Exhibit P Exhibit Q Exhibit R 434677.5 LIST OF EXHIBITS Conceptual Master Plan Conceptual Density, Intensity and Mix of Use Table Conceptual Master Development Schedule Development Approvals City Properties - Property Control Numbers CRA Properties - Property Control Numbers Third-Party Properties - Property Control Numbers Omitted Omitted Omitted Form of Interlocal Agreement Project Documents Required Contract Provisions Memorandum of Development and Disposition Agreement Insurance Requirements Site Legal Description MLK CORRIDOR DEVELOPMENT CITY OF BOYNTON BEACH THIS DEVELOPMENT AND DISPOSITION AGREEMENT (the "Agreement") is made this _ day of , 2007, by and among the City of Boynton Beach, Florida, a municipal corporation existing under the laws of the State of Florida (the "City"), the Boynton Beach Community Redevelopment Agency, a public body corporate and politic created pursuant to Chapter 163, Part III, Fla. Stats. ("CRA") and Intown Partners, LLC, a Florida limited liability company (the "Developer"). RECITALS: The CRA approved the issuance of a Request for Proposals ("RFP") for Developer for the redevelopment of the Martin Luther King East Corridor in the Heart of Boynton ("MLK Corridor Development"). Developer submitted a proposal ("Developer's Proposal") in response to the RFP. After presentations by developers and public input on August 17, 2006, the CRA selected the Developer's Proposal, and named the Developer as the preferred Master Developer for the MLK Corridor Development. The CRA, City and Developer now desire to enter into a definitive agreement concerning their respective obligations for the redevelopment of the MLK Corridor Development. The parties hereto agree that the establishment of a Community Development District (a special purpose unit of local government to be created by the City Commission of the City of Boynton Beach) is the best alternative to assure that the community maintenance standards will continue after the Developer has completed redevelopment of the MLK Corridor Development. The City, the CRA and Developer are determined to work cooperatively to create a Community Development District (the "District") to plan, construct, acquire, operate and maintain infrastructure systems and facilities benefiting the MLK Corridor Development. NOW, THEREFORE, it is hereby covenanted and agreed by and among the parties hereto that this Agreement is made upon the terms, covenants and conditions hereinafter set forth. ARTICLE I DEFINITIONS For all purposes of this Agreement, the following terms shall have the following meanmgs: "ADA" means The Americans with Disabilities Act of 1990, as amended, together with any rules or regulations promulgated,t~ereunder, or any successor act thereto. , "Affiliates" means, with respect to the Developer, any other Person directly or indirectly controlling or controlled by Developer, or under direct or indirect common control with the Developer. 1 "Agency" or "CRA" means the Boynton Beach Communit1 Redevelopment Agency and any assignee or transferee of all of the Agency's rights, obligations and interests herein, from and after the date of any such assignment or transfer thereof (by operation of law or otherwise). "Agreement" means, collectively, this Development and Disposition Agreement and all exhibits and attachments hereto, as any of the same may be modified hereafter. "Architect" means the architect designated by Developer. CDD. "CDD Bonds" means any bond or other financing which may be issued or impbsed by a "City" means the City of Boynton Beach, Florida. "City Properties" means those certain parcels of real property located in the MLK Corridor Development owned by the City, the property control numbers of which are set forth on the attached Exhibit "D"; and any other parcels of real property assembled and acquired by the City to be transferred to the Developer in connection with the redevelopment of the MLK Corridor Development. "Completion Guarantee" shall mean any and all guarantees provided to assure completion of construction of the Project or a Phase therein. "Conceptual Master Development Schedule" means the development schedule attached hereto as Exhibit "B", as it may be modified from time to time. "Conceptual Master Plan" means the plan for redevelopment of the MLK Corridor Development as proposed by the Developer in its RFP, attached hereto as Exhibit "A", as it may modified from time to time. "Concept Plan" means and refers to the Developer's Proposal submitted in response to the CRA' s Request for Proposal. "CRA Plan" means the Heart of Boynton Community Redevelopment Plan, as the same may be modified from time to time. "CRA's Proiect Representative" means the individual designated by CRA to represent CRA in its dealings with the Developer as set forth in Section 5.1 (b) below. "CRA Properties" means those certain parcels of real property located in the MLK Corridor Development owned by CRA, the property control numbers of which are set forth on the attached Exhibit "E"; and any other parcels of real property assembled and acquired by CRA to be transferred to the Developer in connection with the redevelopment of the MLK Corridor Development. "Default" means any condition or event, or failure of any condition or event to occur, which constitutes, OF }Vould after the giving of notice, lapse of time or both, an Event of Default under the terms of this Agreement. "Default Notice" means notice of Default given by the CRA to the Developer under the 2 terms of this Agreement as provided in Section 4.5(c) below. "Developer" means Master Developer for the MLK Corridor Development, Intown Partners, LLC, its successors and permitted assigns. "Developer's Proiect Representative" means Samantha Simons or Richard Baron, and/or the individual(s) designated by the Developer to represent the Developer in its dealing with the CRA and the City as set forth in Section 5.1(a) below. "Development Approval( s )" means all permits and approvals necessary' for the redevelopment of the MLK Corridor Development in accordance with the Conceptual Master Plan and Master Site Plan. "District" means the Community Development District to be formed pursuant to Chapter 190, Fla. Stats., for the MLK Corridor Development. "Due Diligence" means examination of the history and physical conditions and characteristics of any portion of the Project Site to determine if it is suitable for development for the purpose intended as set forth in the Agreement. "EEO Program" means the program established by the developer pursuant to Section 10.11 below. "Effective Date" means the date this Agreement is fully executed and delivered by all parties hereto. "Event of Default" means the Developer's breach of the terms of this Agreement as described in Section 4.5 below. "Final CO" means a final certificate(s) of occupancy issued by the City's Building Department for all or a portion of any constructed improvements. "Force Maieure" means delays due to any of the following (provided that such delay is beyond a Party's reasonable control): strikes, slowdowns, lockouts, acts of God, inability to obtain labor or materials, war, enemy action, civit"commotion, fire, casualty, abnormal weather conditions, litigation, including eminent domain litigation, a court order which causes a delay, delays in governmental approvals, the application of any Requirement, or other such cause beyond such Party's reasonable control. "Governmental Authority or Authorities" means the United States of America, the State, the City, Palm Beach County, the CRA, the District, any other community development district and any agency, department, commission, board, bureau, instrumentality or political subdivision, now existing or hereafter created, having jurisdiction over Developer and/or the Project. "Hazardous Substances" means (1) petroleum and its constituents; (2) radon gas, asbestos in any form, urea formaldenyde foam insulation, transformers or other equipment which contain dielectric fhfid containing levels of polychlorinated biphenyl in excess of Federal, state or local safety guidelines, whichever are more stringent; (3) any substance, gas, material or chemical which is or may during the Term of this Agreement be defined as or included in the definition of "hazardous substances," "hazardous materials," "hazardous wastes," "pollutants or 3 contaminants," "solid wastes" or words of similar import under ~ Requirement including the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 D.S.C. ~ 9601 et seq.; the Hazardous Materials Transportation Act, as amended, 49 D.S.C. ~ 1801, et seq.; the Resource Conservation and Recovery Act, as amended, 42 D.S.C. ~ 6901, et seq.; the Federal Water Pollution Control Act, as amended, 33 D.S.C. ~ 1251, et seq.; and Fla. Stats., Chapters 376 and 403; and (4) any other chemical, material, gas or substance, the exposure to or release of which is regulated by any governmental or quasi-governmental entity having jurisdiction over the Project Site or the operations thereon. . "Improvements" means all items which are to be constructed as part of the MLK Corridor Development. "Infrastructure Improvements" means additional infrastructure and/or renovations and repairs to existing infrastructure required for the Project or a Phase thereof. "Interim Milestone Dates" are the estimated dates for completion of a certain activities as provided in the Conceptual Master Development Schedule, attached hereto as Exhibit "B." "Interlocal Agreement" means the agreement to be executed ~ong the CRA, the City and the District governing the financing, development, construction, operation, maintenance of, and acquisition of land for, the Infrastructure Improvements, substantially in the form attached as Exhibit "M" hereto, including all exhibits, appendices and schedules thereto. "Master Site Plan" means the site plan for the Project or a Phase thereof which will be provided to the City and CRA within 240 days of the Developer's delivery of notice to the City and CRA that a sufficient number of parcels have been acquired in order to proceed with development of the Project or Phase. "Notice" means any written demand, request, consent, approval or other communication with respect hereto or to the Project Site sent by one Party hereto to the another Party sent in the manner provided for in Section 21.1 below. "Parcel" means a parcel of real property which IS part of the MLK Corridor Development. "~" means Developer, the CRA or the City as indicated by the context. "Parties" means, collectively, the Developer, the CRA and the City. "Person" means an individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, estate, trust, unincorporated association or other entity; any Federal, state, county or municipal government or any bureau, department, political subdivision or agency thereof; and any fiduciary acting in such capacity on behalf of any of the foregoing. "Phase" means a portion of the Project being developed in phases. , , "Plans and Specifications" means schematic plans, design development plans and construction plans for the project component. 4 "Pre-Approval Period" means the period from the Effective pate to the date of receipt of the Development Approvals required for the development of the Project or a Phase as set forth in Section 4.2. "Proiect" means the MLK Corridor Development depicted and described in Exhibit "A" and as further described in Article II. "Proiect Documents" means this Agreement, the Exhibits attached hereto, the Interlocal Agreement and the other documents listed on Exhibit "N" hereto. "Proiect Site" means the property depicted in Exhibit "R" and described in Section 2.1 below, for development of the MLK Corridor Development. "Redevelopment Trust Fund" has the meaning pursuant to Section 163.387, Fla. Stats. "Relocation Assistance Policy" means the requirements as described in Article VI for relocation ofthe current occupants and residents ofMLK Corridor Development area. "Requirements" means the requirements the Developer is obligated to comply with in the performance of its obligations under this Agreement as stated in Section 17.1 (b) below. "State" means the State of Florida. "Substantial Completion" means (I) the completion of all improvements with respect to the Project or a Phase in substantial accordance with the applicable Plans and Specifications therefor and all applicable Requirements, as evidenced by the issuance of a Final CO; (2) delivery to the CRA of a fmal "as-built" survey showing the completed Improvements; (3) delivery to the CRA of a full and complete set of "as-built" Plans and Specifications, or their equivalent, certified by the Architect; and (3) delivery to the CRA of evidence reasonably satisfactory to the CRA that such Improvements have been substantially completed, including receipt of final contractor .affidavits and lien waivers and releases, except for any such liens being contested in accordance with the provisions of this Agreement. "Tax Increment Revenues" mean ad valorem taxes collected on taxable properties above the Tax Increment Base year within the Project Site and deposited in the Redevelopment Trust Fund. "Tax Increment Base Year" means the year of the most recent ad valorem tax assessment roll used by each taxing authority prior to the effective date of the ordinance providing for the funding of the Redevelopment Trust Fund. "Term" means the period commencing on the Effective Date and, subject to earlier termination as provided hereunder, expiring on the earlier to occur of the dissolution of the CRA or Substantial Completion of all Phases of the Project. "Third-Party Properties" means Parcels of property located in the Project Site which are owned by Persons whGl are not a party to this Agreement. "TIF" means tax increment financing pursuant to Chapter 163, Fla. Stats., including TlF Bonds or BANS or other obligations, including CDD Bonds, which are secured by Tax 5 6' Increment Revenues pursuant to Section 163.387, Fla. Stats. "TIF Bonds" means any bonds or other long term financing permitted to be issued by the CRA or the City under Chapter 163 or 166, Fla. Stats. "Title Commitment" means a commitment from Turnkey Title Company to issue an AL T A title insurance policy insuring the Developer's ownership interest in a Parcel of real property in accordance with this Agreement. "Workforce Housing" means housing that which will be sold or rented to' persons earning between 60% to 150% of the Palm Beach County median household income, adjusted for household size. ARTICLE II THE PROJECT Section 2.1 Project Site The MLK Corridor project area is from the east side of North Seacrest Boulevard to and including the west side of US 1 between the north side of N.E. 9th Avenue to and including the south side of N.E. 11 th Avenue. The legal description of the Project Site is contained in Exhibit "R. " Section 2.2 Project Description (a) The Project consists of a cohesive plan for a mixed-use development composed of single and multifamily housing and neighborhood retail with service uses, as depicted on the attached Exhibits "A" and "A-I." (b) The Project will be implemented through Master Site Planes) which will be consistent with a Heart of Boynton Redevelopment Plan, as may be modified hereafter, subject to changes necessary to accommodate market conditions and make the Project feasible. The Master Site Planes) will overlap with recommendations contained in Treasure Coast Regional Planning Council's HOB Plan Feasibility Analysis. (c) The Parties agree to amend the Conceptual Master Plan (Exhibit "A") and Density, Intensity and Mix of Use Table (Exhibit "A-l ';), if necessary to secure financing from lenders and/or investors provided equity capital. The CRA agrees that consent to an amendment to these exhibits proposed by Developer shall not be unreasonably withheld, delayed or denied. Section 2.3 Sequence of Development/Phasing The Conceptual Master Development Schedule is estimated and may be subject to amendment due to unforeseen circumstances, and Holdout Parcels. The Parties agree to approve reasonable amendments and that agreement thereto shall not be unreasonably withheld) delayed or denied. ARTICLE III REGULA TORY APPRO V ALS 6 i Section 3.1 Development Approvals and Fast-Track Processing. (a) Following the acquisition of a sufficient number of parcels necessary for the development of the Project or a Phase therein, the Developer shall apply for all Development Approvals necessary to commence development of the Project or Phase. In the event any of the Development Approvals include a requirement that the City or CRA, as a property owner, provide its joinder or consent to the Developer, the City and the CRA agree to provide such joinders and consents. All parties hereto agree to use' their best efforts to oJ?tain the Development Approvals to keep the development pace moving in accordance with 'the time frames set forth in the Conceptual Master Development Schedule. (b) The City agrees to take steps to facilitate permitting, reduce processing time and champion public Development Approvals. The City agrees to organize a one-stop office to receive applications for City approvals where the Developer can coordinate all approvals through one representative for the City. ARTICLE IV EFFECTIVENESS AND TERMINATION OBUGA TIONS: EVENTS OR DEF AUL TS: BREACH: REMEDIES Section 4.1 Effectiveness and Termination This Agreement shall be effective as of the Effective Date and shall terminate on the date of Substantial Completion (as defined in Article I) of the Project, unless sooner terminated pursuant to the terms of this Agreement. Section 4.2 Parties' Obligations During Pre-Approval Period (a) During the period from the Effective Date to the date of receipt of the Development Approvals ("Pre-Approval Period"), Developer, City and CRA shall each use all reasonable efforts to secure all necessary Development Approvals in an expedited manner. (b) Unless caused by a Force Majeure or by actions or omissions of the City or the CRA, Developer shall complete its Due Diligence investigation of the Project Site within months from the Effective Date. Developer shall provide the City and the CRA with a copy of all Due Diligence reports prepared by or for the Developer promptly upon the receipt or completion of such reports. In no event shall the Due Diligence reports be used or relied upon by the City or the CRA to create any liability upon the Developer. Promptly upon completion of Due Diligence, the Developer restore the Project Site to its condition prior to the Developer conducting its Due Diligence investigations of the Project Site. Within thirty (30) days after the Effective Date, City and CRA deliv~t to the Developer all studies, reports, documents or other information in their possession or in the possession of any of the City's or the CRA' s engineers, consultants or agents relating to the physical, geotechnical, environmental, chemical, geological, hydrological, archaeological, historical or biological characteristics of the Project Site. 7 (d) Each Party shall, on a regular monthly basis, pro~ide the other Party with a written report describing the status of its efforts to secure the Development Approvals. As reasonably requested by each Party, the Parties shall meet to discuss these efforts and the information provided in such reports. Section 4.3 Developer Termination Rights. Developer shall have the right, upon written notice to the City and the CRA, to terminate this Agreement and all other Project Documents to which it is a party if: , (a) The CRA's or City's authority to enter into and carry out the provision of this Agreement is invalidated pursuant to a final decree of a Court of competent jurisdiction, provided that Developer's obligations under this Agreement shall only be terminated as to its obligations to the Party without authority; (b) The City or CRA breaches the terms of this Agreement, which breach is not cured within thirty (30) days after the City and/or CRA has received written notice of such breach from the Developer, provided that if the type of breach is not amenable to cure within the thirty (30) day period, the City/CRA shall have the period of ninety (90) days to cure same the City or CRA is diligently pursuing the cure thereof; or (c) A sufficient number of Parcels as defined in the Conceptual Master Plan have not been acquired by the Parties to be able to proceed with development of the Project or Phase within twenty-four (24) months of the Effective Date. Section 4.4 City/CRA Termination Rights. The City and/or CRA shall have the right, upon written notice to the Developer, to terminate this Agreement and all other Project Documents to which it is a party: (a) If the Developer's authority to enter into and carry out the provisions of this Agreement is invalidated pursuant to a final decree of a Court of competent jurisdiction; (b) If the Developer is otherwise in default under any provisions of this Agreement or other agreements entered between the Parties which are not cured after thirty (30) days advance written notice unless same cannot be cured within such thirty (30) day period in which event Developer shall have up to one hundred ninety (90) days to cure such default so long as Developer is diligently pursuing the cure thereof; or (c) A sufficient number of Parcels as defmed in the Conceptual Master Plan have not been acquired by the Parties to be able to proceed with the Project, within twenty-four (24) months of the execution of this Agreement. Section 4.5 Events of Default: Definition. Each of the following events ~rall be an "Event of Default" hereunder: (a) If the' Substantial Completion of any Project Phase (or, if the Project is not phased, then the Project) is not completed by the date one year after the date specified in the Conceptual Master Development Schedule, Exhibit "B" of this Agreement (as it may be 8 modified hereafter), provided the delay to achiev~ Substantial Co~pletion is not caused by the City, CRA, or the District; or (b) If Developer fails to meet any Interim Milestone Date (as may be extended by reasons of Force Majeure) set forth in the in the Master Development Schedule Exhibit "B," as may be amended from time-to-time, provided that Developer's failure to meet the Interim Milestone Date is not caused by the City, C-RA and/or the District; or (c) If Developer fails to observe or perform in any material term set fortl1 in this Agreement and such failure continues for a period of ninety (90) days after the Developer has received notice of such Default from the City or CRA; provided that if the breach is of the nature that it cannot be cured within the ninety (90) day period, the Developer shall have a period of one hundred fifty (150) days to cure its breach as long as it is acting diligently to cure such breach. (d) The voluntary or involuntary petition is filed by or against the Developer seeking relief under the Bankruptcy Code, which petition is not stayed or dismissed within ninety (90) days after such filing; Section 4.6 Enforcement of Performance: Damages: and Termination. (a) If an Event of Default occurs, the City and/or CRA may elect to do any or all of the following: (1) enforce performance or observance by Developer of the applicable provisions of this Agreement; (2) recover from actual damages from the Developer as determined by a court of competent jurisdiction, plus interest thereon at the rate of ten (10%) percent per annum; (3) enforce the Completion Guarantees; (4) terminate this Agreement in accordance with Section 4.7 below; and (5) recover any payment due from the Developer under this Agreement. The City's right to pursue its remedies shall be cumulative, and its exercise of one remedy shall not preclude the exercise of another. The City and/or CRA's election of a remedy hereunder with respect to an Event of Default shall not limit or otherwise affect the City and/or CRA' s right to elect any of the other remedies available to the City and/or CRA hereunder; provided that. if the City and/or CRA is enforcing any Completion Guarantee, the City and/or CRA may not elect to pursue its other remedies based on a Default arising from such failure to achjeve Substantial Completion. Section 4.7 Termination of Agreement Upon Default. If an Event of Default occurs, which is continuing and not cured within any applicable cure period, the City and/or CRA shall have the right to terminate this Agreement by giving the Developer written notice thereof stating the date such termination is to be effective. . Section 4.8 No Waiver. The failure by the City and/or CRA to insist upon strict performance of any covenant, agreement, term or condition of this Agreement or to exercise any right or remedy available to such party by reason of Developer's Default or an Event of Default, shall not be construed as a waiver by.tl].e City and/or CRA of any other Event of Default. Section 4.9 Right to Perform Developer's Obligations. Upon the occurrence of an Event of Default, which is continuing and is not cured within the applicable cure period allowed for her~in, the City and/or CRA shall have the right, but shall not be obligated to, perform the 9 obligations of the Developer, without waiving or releasing Develop~ from any of its obligations contained herein. The City and/or CRA shall only exercise such right in the event of a bona fide emergency or after giving written notice to the Developer of its intent, five (5) business days in advance of the City and/or CRA taking such action. The Developer hereby grants the City and/or CRA access to the Project Site in order to perform any such obligation in accordance with this Agreement. Any amount paid by the City and/or CRA in performing Developer's obligations. shall be reimbursed to the City and/or CRA within thirty (30) days following the City and/or CRA's demand therefor. , Section 4.10 Waiver. Release and Assumption of Obligations. The City and/or CRA's payment or performance pursuant to the provisions of this Article shall not be, nor be deemed to constitute the City and/or CRA's assumption of Developer's obligations to payor perform any of Developer's past, present or future obligations hereunder ARTICLE V PROJECT REPRESENTATIVES: KEY PERSONNEL: PROJECT ADMINISTRATION Section 5.1 Proiect Representatives. (a) Developer hereby designates Samantha Simons (or her successor or alternate for such purpose) as the "Developer's Proiect Representative" to represent Developer in all of its dealings with the City and eRA and the CRA's Project Representative relating to the implementation and enforcement of this Agreement; provided that it is acknowledged and agreed that Developer may delegate in writing (a copy of which shall be made available to the City and/or CRA upon request) certain of her responsibilities to another person to be determined by the Developer. The City and CRA shall direct all communication regarding this Agreement to Developer's Project Representative. (b) Within thirty (30) days after execution of this Agreement, the CRA will designate an individual (or his successor appointed for such purpose) as the "CRA's Project /f Representative" to represent the CRA in all of its dealings with Developer and Developer's Project Representative relating to this Agreement. Developer shall direct all communication /' regarding this Agreement to the CRA's Project Representative. The Project Representative shall be qualified in the areas of development, construction, construction management, urban planning, and such other areas necessary to effectively and efficiently proceed with the development of the Project as contemplated by this Agreement. (c) Within thirty (30) days after execution of this Agreement, the City will designate an individual (or his successor appointed for such purpose) as the "City's Project Representative" to represent the City in all of its dealings with Developer and Developer's Project Representative relating to this Agreement. Developer shall direct all communication regarding this Agreement to the City',s,Project Representative. The City's Project Representative shall be qualified in ,the areas of development, construction, construction management, urban planning, and such other areas necessary to effectively and efficiently proceed with the development of the Project as contemplated by this Agreement. 10 Section 5.2 CRA's Right to Inspect. The CRA reserves the right, at its sole cost and expense, to conduct inspections of the Project Site. Developer agrees to provide safe access to the Project Site, including, without limitation, access to inspect the Improvements. CRA's field personnel shall not interfere with the construction of the Improvements at the Project Site and shall comply with all safety standards and other job-site rules and regulations of Developer. Any material interference which is caused by the CRA' s field personnel shall extend the date for completion of the Improvements by the actual length of the delay caused by the interference. Section 5.4 Access and Review of Developer's Books and Records. Developer shall at all times keep and maintain accurate and complete records pertaining to acquisition of the Parcels and including such matters required to demonstrate Developer's compliance with its obligations under this Agreement; provided that such records shall not include proprietary and financial information relating to the allocation of profits and losses among the Developer's Affiliates nor information concerning leasing incentives offered or provided to prospective tenants or sub-tenants. The City, CRA and/or their representatives shall have, during normal business hours and upon reasonable advance notice, access to inspect, review and photocopy any and all such books and records of Developer relating to the Project as described above. The City and eRA shall sign a log book for Developer whenever records are inspected. ARTICLE VI RELOCATION ASSISTANCE PROCEDURE Section 6.1. Compliance With Relocation Assistance Policy. In acquiring the Third- Party Parcels, the following provisions shall apply to the relocation of the current residents and occupants of the Project Site: (a) Residents who have homesteads in the MLK Corridor within the designated site plan area will be eligible for relocation assistance; (b) Small Businesses in the site area will be relocated by CRA in accordance with its Business Genesis Program; (c) Churches located within the designated site plan area shall be relocated In accordance with agreements with the Developers/CRA/City. (d) Developer shall pay reasonable moving expenses for homeowner residents, in accordance with Federal Relocation o-uidelines, if required ; and (e) Developer shall use best efforts to relocate homeowner residents living in a home to another home in the Heart of Boynton neighborhood, or within the local area, with a similar mortgage or no mortgage, in an effort to maintain their status quo. Developer shall not be responsible for any increase in taxes, insurance or other fees outside the control of the Developer. ARTICLE VII ACQUISITION OF THIRD-PARTY PROPERTIES AND 11 .F CITY /CRA SALES TRANSACTION ;,1 Section 7.l. Land Acquisition Phase. (a) Commencing on the Effective Date, the Developer, CRA and the City shall cooperate in the acquisition of all Third-Party Properties within the Project Site. The Developer shall attempt to assemble all Parcels necessary for the development of the Project within twenty- four (24) months of the Effective Date ("Land Acquisition Phase"). (b) If a sufficient number of Parcels have not been acquired by the Parties to commence development of one (1) Phase of the Project within the twenty-four (24) month period, the Parties shall meet and jointly determine whether: (1) the Land Acquisition Phase should be extended, and/or (2) the City's power of eminent domain will be necessary to acquire sufficient Parcels. (c) To facilitate assemblage of the Parcels, the City shall impose a development and permitting moratorium for the MLK Corridor during the Land Acquisition Phase, if necessary. 7.2 Cooperation by. City. CRA and Developer for Acquisition of Third-Party Properties by Developer. (a) Commencing on the Effective Date, Developer will proceed with the acquisition of Third Party Properties within the Project Site. The City and CRA shall assist the Developer in implementing its acquisition strategy and will not intercede in Developer's negotiations for the purchase of the subject Parcels. If the Developer needs assistance from the CRA and the City to acquire one or more Parcels, Developer shall make a specific request for aid to City/CRA, detailing what staff and/or financial resources are being requested, and shall provide the City/CRA with all relevant information in its possession regarding the subject Parcel(s) including (1) the address of the parcel(s), (2) a copy of the independent appraisal of the Parcel(s), and (3) copies of written offers and counteroffers made with regard to the Parcel(s). (b) Any Parcels acquired by the City/CRA with City/CRA funds shall be transferred to the Developer in accordance with Section 7.3, below. Section 7.3. Acquisition of Land from City and CRA. The City and CRA each agree to sell to the Developer all Parcels acquired by the City and CRA within the Project Site that the Developer needs to complete development of the Project. The sale and purchase of those Parcels may be completed in I) a single transaction; and/or 2) several transactions. (a) The purchase price ("Purchase Price") for the City Properties and the CRA Properties shall be as follows: (1) Developer shall pay the City up to $1,981,153 for the City Properties; (2) Developer shall.pay the CRA up to $1,378,587 for the CRA Properties. , Section 7.4 eRA/City Deliveries. During the Land Acquisition Phase, the CRA and the City shall provide to Developer copies of all surveys, tests, studies and reports which the CRA and the City have with respect to the City Properties and the CRA Properties. Any reliance 12 upon such items provided by the CRA and City is at the sole risk o~ Developer, and the City and the CRA make no representations or warranties with respect thereto. Section 7.5 Condition of Title. The City and the CRA shall convey to Developer fee simple, good and marketable title to the City Properties and the CRA Properties respectively, free and clear of all liens, encumbrances, easements and restrictions, encroachments and survey exceptions, except for easements and restrictions which do not adversely affect the development of the Project (the "Permitted Exceptions"). From and after the Effectiv.e Date, to the extent that any of the City Properties or CRA Properties are the subject of a lease, the City or the CRA shall not amend, extend, renew or otherwise modify any lease without the express written consent of Developer. Section 7.6 Title Defects. The City and CRA shall provide the Developer with a title commitment for each of its Parcels not less than thirty (30) days prior to anticipated closing date on the subject Parcel, along with copies of all easements and restrictions contained in the title commitment. The Developer shall notify the City and the CRA of any matters to which it objects which are disclosed in the title commitment and/or survey. The CRA and the City shall make reasonable efforts to cure any such defect prior to closing and shall pay any monetary liens at closing. The City or the CRA shall institute eminent domain proceedings to eliminate such title problems to the extent it is legally possible. In the event that City and eRA are unable to deliver title in the condition required by this Agreement, Developer may accept such title in its "as is" condition, without abatement of the Purchase Price. Section 7.7 Inspections. During the Land Acquisition Phase, Developer may conduct such investigations and inspections of the condition of the City Properties and the CRA Properties, including but not limited to: surveys, environmental assessments (phase on and phase two, if necessary), and other inspection and tests it deems necessary ("Inspections"), at Developer's sole cost and expense. City or CRA shall be advised three (3) business days prior to Developer conducting such Inspections. If a phase two environmental assessment report reveals the existence of any Hazardous Substances, then the Developer shall request that its environmental consultants recommend any remediation that might be required by any governmental authority as a result of such condition. The consultant shall also provide a good faith estimate, to the extent possible, of the anticipated cost of such remediation. The seller of the affected Parcel may retain its own consultant to review the conclusions of Developer's consultant. The applicable seller shall proceed with remediation of the environmental contamination and pay for any required remediation costs. If the applicable seller fails to remediate the environmental contamination, Developer may either (i) refuse to close on the subject Parcel, or (ii) may close on the subject property and remediate the environmental contamination, and the cost thereof shall be an offset against the purchase price set forth above. Section 7.8 Indemnity. Developer shall indemnify City and CRA of, from and against any and all costs, losses, claims, damages, liabilities, expenses and other obligations (including reasonable attorneys' fees and court costs) arising from, out of or in connection with the Inspections. Developer provide evid~pce to the City and the CRA that it has liability insurance coverage sufficient tp insure against any risk of loss or damage incurred as a result of the Developer conducting 'its Inspections. Section 7.9 Closing. The Developer shall deliver a Notice of Commencement to the 13 CRA and the City once the Developer determines that the Partfes hereto have collectively acquired and assembled sufficient Parcels in the Project Site to commence construction of the Project or a Phase thereof. Closing and conveyance of the City Properties and the CRA Properties necessary to commence construction on the Project or Phase shall occur within thirty (30) days of the Developer's delivery of its Notice of Commencement; provided that the Developer has provided the CRA and the City with written evidence that the Developer has received all Development Approvals and financing commitments necessary to proceed with development ofthe Project or Phase therein. , Section 7.10 Seller's Closinl$ Documents. The City and the CRA shall deliver the following documents at the City/CRA Closing: (a) General Warranty Deeds to the Parcels. (b) Title Affidavits. (c) Required easements and restrictions, if any, as needed per Approval Plan. (d) Other documents necessary and appropriate, reasonably required by Developer. Section 7.11 Developer's Closing Documents and Deliverables. The Developer shall deliver the following doc~ents to the City and the CRA, respectively at the City/CRA Closing: (a) Required easements and restrictions, of any, as needed per Approval Plan. (b) Other documents necessary and appropriate, reasonably required by Seller. Section 7.12 Prorations. Seller shall pay all real estate taxes payable with respect to any year prior to the year of the City/CRA Closing. The following items shall be prorated and adjusted between the City and Developer and between the CRA and Developer as of midnight of the day preceding the City/CRA Closing, except as otherwise specified: Real estate taxes, any items of income and expense, payable for or in connection with the use or occupancy of the properties, gas, water, electricity, heat, fuel, sewer and other utilities and other operating expenses relating to the properties.. Section 7.13 City/CRA Closing Costs. City and CRA shall pay for the following items at the time ofthe City/CRA Closing: (a) Costs of demolition, site preparation and environmental cleanup costs, if required. (b) City and CRA own legal costs. Section 7.14 Developer Closing Costs. The Developer shall pay for the following items at the time of the City/CRA Closing: .., . (a) Purchase Price. (b) Title Insurance Premiums. 14 (c) Due diligence costs, including legal costs. Section 7.15 Conditions to Closing. (a) The City and CRA's obligation to close the sale of their properties shall be conditioned on Developer not being in Default hereunder beyond any applicable cure period, and Developer having complied and performed its obligations contemplated hereunder with respect to the City/CRA Closing. (b) Developer's obligation to close the City/CRA purchase of the CRA Properties and the City Properties shall be conditioned on the City and the CRA not being in Default hereunder beyond any applicable cure period, and each of the City and the CRA having complied and preformed its obligations contemplated hereunder with respect to the City/CRA Closing. Section 7.16 Possession. Developer shall be granted full possession of the City Properties and the CRA Properties at closing on the subject Parcels, subject to parties in possession under exi~ting leases. ' Section 7.17 Assignment. Dev.eloper may assign its rights to acquire the City Properties and the CRA Properties to an Affiliate of Developer upon notice to and with the prior written consent of the City and CRA and provided that Developer's assignee shall be obligated to close under this Article in the same manner as Developer. Section 7.18 Deeds to Rights-Of-Way. To the extent that any of the City Properties or the CRA Properties constitute (or will constitute following construction) a public street or other right-of-way (or part thereof), Developer or a CDD as appropriate, shall execute and deliver deed( s) to said parcels to the City or the CRA following the Completion of Construction of the Infrastructure Improvements thereon. ARTICLE VIII DEVELOPER COMMITMENTS Section 8.1 Contributions by the Developer: The Developer agrees to contribute the following public and community assets: 1 (a) Public Safety Building; with commitment from the City for lease space, and '" . commitment for youth programming Urban Strategies; (b) Lighted pedestrian walkways and connections throughout the Project;- (!4J.( GfIJ. (c) Street signage to incorporate history of the community including, but not limited to names of matriarchs and leaders oLtpe community; (d) Fitnes; 'tenter with free or reduced membership fees for police, fIre department and governmental workers who participate in the community mentoring program; ]5 (e) Gateways at both ends of the community - one at Seacrest Blvd. main entrance and one at Federal Highway. The design of the eastern gateway along Federal Highway shall be ,.y emphasized by a retail corridor which opens up onto a community plaza. The design could easily embrace the addition of a potential SFEC light rail stop in the future to coordinate with the new commuter SFEC planned rail-line; (f) Incorporation of urban smart growth and sustainable design features. . ~,1 CommunIty Center; '" oJ '" .. (g) (h) Community Trust Fund to be established; Developer shall use its best efforts to provide programs including, but not limited to, job training, healthcare, youth programs, homeownership programs, and ongoing community outreach programs as suggested by the community . '1 (i) Developer shall establish a college scholarship program that will be offered to / students that graduate High School who live within the Seacrest Village Community; and -,1 G) Developer shall provide up to $150,000 for revitalization of Sarah Sims Park based on said project approvals and project feasibility. Section 8.2 Contribution for Affordable and Workforce Housing Programs (b) phase; and Seacrest Village will include no less than 20% of "Workforce Housing" in each (c) Workforce housing will blend architecturally with other residences. Section 8.3 Contributions bv CRA 1. (a) CRA commits to contribute no more than $ TBD towards the implementation of ,.,.7 the Project including the cost of land acquisition, infrastructure improvements, and financial assistance for demolition and removal of existing structures. . ~ 1 (b) CRA shall assist in the relocation of churches other than Deliverance by Faith'" . Church; schools; and neighborhood businesses. (c) CRA shall commit to renting space in the Public Safety Building. ,. 1 , 1 (d) CRA shall be responsible for public nuisance abatement within the Project Site, " including the elimination of business involved in illegal activities. (d) Tax Increment Financing; Upon the completion of the Project, or any Phase thereof, the Developer shall be entitled to receive 90% of the increased tax revenues ("Tax /' Increment Revenues") generated by the Project or a completed Phase, for a period of 15 years, provided Developer is' not in default as to any provision of this Agreement and provided that Developer has met all of its obligations in this Agreement. 1 16 Section 8.4 Commitments by City (a) The City commits to contribute no more than $ TBD towards the implementation 1 of the Project including the cost of land acquisition, infrastructure improvements, and financial - ( assistance for demolition and removal of existing structures. (b) The City shall assist the Developer with public nuisance abatement. ( c) The City will fund payment of impact fees, building permit fees, and connection charges and capital costs for construction and installation of water and sewer facilities. (d) The City shall assist in the relocation of Deliverance by Faith Church. (e) The City shall provide the Developer with regulatory relief from Zoning and Building Codes to assist the Developer with the efficient and expeditious development of the Project. ARTICLE IX FINANCING Section 9.1 Developer Financing. Upon commencement of construction of the Project or a Phase therein, the Developer shall provided written evidence to the CRA and City that, it has secured a commitment to finance development of the Project by providing copies of its loan commitments to the City and CRA. Section 9.2 CDD (Community Development District) Revenue Sources. As set forth 1 in the recitals to this Agreement and in Article XII, the Parties have determined to work / cooperatively to create the MLK Corridor Community Development District. The City and CRA agree to support the creation of the District which will enable the issuance of CDD Bonds, a portion of which may be secured by Tax Increment Revenues pursuant to an Interlocal Agreement, as defined in Article I, to finance qualifying infrastructure costs related to the Project. If requested, the CRA shall pledge Tax Increment Revenues as security for one or more issues of CDD Bonds for the Project. ARTICLE X PROJECT CONSTRUCTION. OPERA TrON AND MANAGEMENT REQUIREMENTS Section 10.1 Construction Obligations. (a) Within 240 days of notifying the City and CRA in writing that a sufficient number of Parcels have been acquired to prQceed with the Project or a Phase thereof, Developer shall submit the following to the City and eRA: (1) the Master Site Plan, (2) the updated Conceptual Master Development'Scp.edule, (3) the list of required Infrastructure Improvements, and (4) a detailed budget for the construction and development of the Infrastructure Improvements for the Project or Phase of the Project that the Developer proposes to proceed with. 17 H (b) Developer shall design and construct the Project. Developer will initially be obligated, subject to Force Majeure, to commence construction of the Project within six (6) months following closing and conveyance of City and CRA Properties to the Developer necessary for the development of the Project or Phase therein. (b) The Developer shall achieve Substantial Completion of the Project or Phase at the time(s) set forth in the Master Site Plan and Conceptual Master Development Schedule, subject to Force Majeure. During construction, the Developer will, at all times: (1) ensure that sufficient manpower and materials are deployed throughout the development and construction of the Project Phase, (2) proceed diligently and continuously towards the completion of the development and construction of the Project Phase, (3) not abandon or otherwise terminate the development and construction of the Project Phase, and (4) substantially complete the Project or Phase by the dates set for in the Conceptual Master Development Schedule. Section lO.2 Regulatory and Design Requirements. Developer shall construct the Improvements in accordance with all Development Approvals and all other Requirements, including, without limitation, the ADA. Developer shall be responsible for timely payment of all applicable permitting, licensing, utility connection and similar fees and charges in connection with the design and construction of the Project. Section 10.3 Design and Construction Review ProceduresIProvisions Applicable to Construction. (a) Any material changes to the Master Site Plan and Master Density, Intensity and Mix of Use Table shall be submitted by Developer to City and CRA for their review and approval. (b) In no event shall the CRA Representative or the CRA have any liability in connection with the construction or operation of the Project as a result of or arising from any approvals relating thereto given or withheld (or the right t.o give or withhold such approvals) pursuant to this Agreement, or as a result of or arising from any other right to review documents in connection with the construction or operation of the Project. In no event shall any such review, approval, comment or evaluation by the CRA relieve Developer of any liability or responsibility under this Agreement, it being understood and agreed that the CRA is at all times ultimately relying on Developer's skill, knowledge and professional training and experience in preparing (or causing the preparation of) any project documents. (c) Developer shall notify the CRA in writing of the names of all architects, engineers, construction contractors, project managers, program managers and other design and construction consultants engaged by Developer in connection with the design and construction of the Project (collectively, the "Project Design and Construction Contractors"). The CRA shall have no right of approval with respect to any such engagement; provided, however, that Developer covenants and agrees that-all Project Design and Construction Contractors shall have experience with the t~e of project being undertaken and shall be duly licensed to practice under the laws of the State of Florida. The CRA shall have no right of approval with respect to any contract entered into by Developer with any Project Design and Construction Contractor; provided, however, each such contract shall contain the "Required Contract Provisions" attached 18 .>- as Exhibit "0" hereto. Upon execution of any such contract, DevJoper shall provide the eRA with appropriate written evidence of its compliance with the preceding sentence. (d) Developer shall prosecute any claims it may have against any Project Design and Construction Contractor for failure by any such contractor to comply in any material respect with the standards of performance imposed upon it in any applicable contract if it deems such prosecution to be in the best interest of the Project, in the exercise of its reasonable business judgment. Nothing contained in this Agreement shall grant or be deemed to grant any Project Design and Construction Contractor or any other Person engaged by Developer with any right of action or claim against the CRA with respect to any work any of them may do in connection with the Project. Nothing contained herein shall create or be deemed to create any relationship between the CRA and any Project Design and Construction Contractor or any such other Person engaged by Developer, and the CRA shall not be responsible to any of the foregoing for any payments due or alleged to be due thereto for any work pertained or materials purchased in connection with the Project. ( e) In connection with the Project, Developer shall require all project design and construction contractors to comply with the EEO Program (as set forth in Section 10.11), as modified or adjusted from time to time. The provisions of the EEO Program shall be applicable to all Project design and construction contractors and subcontractors at any tier of construction. Developer shall furnish to the CRA data, including but not limited to compliance reports, related to the operation of the EEO Program, as reasonably requested by the CRA. (f) Developer shall be responsible for initiating, maintaining and supervising all . security precautions and programs reasonably required in connection with the performance of the construction work. Section 10.4 Proiect Overshrht Prior to Completion. Prior to Substantial Completion of the Project (or any or portion thereof), the Developer, the City and the CRA shall cooperate to exchange information relevant to Parcel acquisition and the development of the Project (or any or portion thereof), provided that information exchanged by and among the Parties shall remain confidential at all time and not disclosed to the public without consent of the Parties hereto. Section 10.5 Progress Meetings. The Developer agrees to schedule regular progress meetings to report on the status of the Project and to review the progress under the Conceptual Master Development Schedule. The CRA's Project Representative may attend each of such meetings. The meetings shall be held at the Project Site or at a location to be designated by the Developer. Section 10.6 Progress Reports. The Developer shall endeavor in good faith to submit to the CRA a quarterly written progress report (the "Progress Report") that shall include a description of activities completed, the activities to be undertaken prior to the next quarterly progress report, the status of all Development Approvals, the status of any Project financing, an explanation of each activity, if any, ..that is causing delay, a description of problem areas, and their estimated impact, on performance of other activities and scheduled completion dates in the Conceptual Master Development Schedule and an explanation of corrective action taken or proposed. 19 .y Section 10.7 Construction and Operation Standards. (a) Developer shall construct the Project with due diligence and In a good and workmanlike manner. (b) Developer shall operate and manage the Project with that degree of skill, care and diligence normally exercised by operators and managers of first-class, mixed-use development projects with a scope, magnitude and location that is comparable to the Project and otherwise in compliance with this Agreement. Section 10.8 Legal and Prohibited Uses. (a) Developer shall use and operate the Project Site throughout the Term as required by this Agreement. In any event, the Project Site shall be used only in accordance with the Final CO(s) therefor (or Temporary CO(s), to the extent that Final CO(s) have not been issued therefor). (b) Without limiting the provisions of subparagraph (a) above, Developer shall not use or occupy the Project Site or any part of the Project Site, and neither permit nor suffer the Project Site to be used or occupied, for any of the following ("Prohibited Use(s)"): (i) for any unlawful or illegal business, use or purpose or for any business, use or purpose which violates any Requirements; (ii) for any use which is a public nuisance; or (iii) in such manner as may make void or voidable any insurance then in force with respect to the Project Site. (c) Immediately upon its discovery of any Prohibited Use, Developer shall take all reasonably necessary steps, legal and equitable, to compel discontinuance of such business or use, including, if necessary, the removal from the Project Site of any subtenants, licensees, invitees or concessionaires. (d) Notwithstanding anything in this Agreement to the contrary, Developer reserves the right to close or restrict access to any portion of the Project Site in connection with improvements undertaken in accordance with the provisions of this Agreement or to such extent as may, in the reasonable opinion of Developer's counsel, be legally necessary to prevent a dedication thereof or the accrual of prescriptive rights to any Person or Persons. Section 10.9 Design and Construction of the Infrastructure Improvements Infrastructure shall be designed and constructed by the CDD pursuant to the Interlocal Agreement. In no event shall the Developer, the CRA or any other CRA Indemnified Party have any liability in connection with the construction of the Infrastructure Improvements as a result of or arising from any approvals relating thereto given or withheld (or the right to give or withhold such approvals) pursuant to this Agreement, or as a result of or arising from any other right to review, comment on or evaluate any plans, drawings, specifications or other documents in connection with the construction or operation of the Infrastructure Improvements. Section 10.10.. Cooperation Developer shall use all reasonable efforts not to disrupt the construction of other development and construction projects within the City. The City and CRA shall use all reasonable efforts not to disrupt, and to prevent other persons from disrupting the construction of the Project or the Infrastructure Improvements. 20 Section 10.11 Equal Opportunity Program Developer hereby establishes an equal opportunity program ("EEO Program") with respect to the construction of the Improvements. Developer shall: (a) Comply with the City Ordinance Number , as amended from time to time; (b) Utilize minority business enterprises ("MBE") and women's business enterprises ("WBE") participation of at least fifteen percent (15%), cumulatively, in the design, development and construction of [each Component of] the Improvements (the "Participation Percentage"). Developer is required to utilize at least MBE's or WBE's to meet the Participation Percentage. MBE's and WBE's shall be those enterprises which are certified as MBE's and WBE's under the applicable regulations of Palm Beach County. Developer shall utilize best efforts to use MBE's or WBE's which have their principal place of business within miles of the City, but Developer shall utilize its bests efforts to retain WBE's and MBE's which are located within the City; (c) Developer shall use best efforts to cooperate with agencies to implement job training programs for women and minority workers, as well as local residents, throughout the development and construction of the Improvements (e) Developer shall submit written reports to the CRA no later than January 31 of each year regarding compliance with the EEO Program for the prior calendar year. The EEO Program stated herein shall be modified from time to time to incorporate such reasonable comments and suggestions by the CRA as are deemed appropriate. Developer shall use all reasonable efforts to implement the EEO Program and satisfy the various requirements hereof. ARTICLE XI INTENTIONALL Y OMITTED ARTICLE XII COMMUNITY DEVELOPMENT DISTRICT Section 12.1 MLK Corridor Community Development District. The City, CRA and Developer agree to work cooperatively to create the District, pursuant to Chapter 190, Fla. Stats., to provide for financing, construction and operation and maintenance of certain of the Infrastructure Improvements for the Project Site and to exercise the general powers and powers for public improvements and community facilities enumerated in Sections 190.011 and 190.012, Fla. Stats. CRA and.-Qeveloper each covenant to use all reasonable efforts to cooperate with the City to set the boundaries of the District so as to be consistent with the boundaries set forth in or referred to in the Interlocal Agreement. 21 ARTICLE XIII II TRANSFERS AND ASSIGNMENTS . Section 13.1 Limitations on Transfers and Assignments by Developer. (a) Prior to Substantial Completion, Developer may transfer ownership of a Phase or a Parcel with the prior written consent of the City and the CRA which will not be unreasonably withheld, denied or delayed. However, the City and CRA may require any tran&feree to demonstrate its financial ability to comply with the obligations that it has undertaken. Such transfer shall not release Developer from its obligations with respect to such Phase or Parcel under this Agreement. (b) Developer may in the ordinary course (a) transfer ownership of a portion of a Phase in the ordinary course to purchasers of residential units, (b) lease a portion of a Phase to residential tenants in the ordinary course, and (c) sell, lease or sub-lease completed portions of a Phase to end users, purchasers and investors consistent with this Agreement. Upon such conveyance, Developer's liability under this Agreement with respect to such transferred portion of a Phase shall be terminated. Section 13.2 Transfer and Assignment by CRA and City. The CRA and the City shall not transfer or assign any of its rights, interests and obligations under this Agreement except to one another. ARTICLE XIV DAMAGE. DESTRUCTION AND RESTORATION Section 14.1 Effect of Damage. Destruction or Restoration. The rights and obligations of the Parties under this Agreement shall not be modified or terminated if the Project Site is damaged or destroyed in whole or in material part by fire or other casualty prior to Substantial Completion; provided that any such event shall be deemed Force Majeure, which shall excuse the Developer's obligation to Substantially Complete the Project or Phase in accordance with the Conceptual Master Plan Development Schedule. ARTICLE XVI NO SUBORDINATION Section 16.1 Rights of the City and CRA. The City and CRA' s interest in or rights under this Agreement as the same may be modified, amended or renewed in accordance with the provisions of this Agreement, shall not be encumbered by or subordinated in any way to (a) any mortgage now or hereafter existing~..{b). any other liens or encumbrances hereafter affecting, created or suffered bY.Developer on its leasehold interest or otherwise, or (c) any sublease or any mortgage liens or encumbrances now or hereafter placed on any interest of any subtenant. Developer shall in no event have any right or authority to create liens or encumbrances on or affecting any interest in or rights of the City or CRA in this Agreement. 22 ARTICLE XVII REQUIREMENTS Section 17.1 Requirements. (a) In connection with its performance of each and every one of its obligations hereunder, Developer shall comply promptly with any and all applicable Require~nts. No consent to, approval of or acquiescence in any plans or actions of Developer by the City or CRA (or any agent or representative thereof) under this Agreement, shall be relied upon or construed as being a determination that such are in compliance with the Requirements or, in the case of construction plans, are structurally sufficient, prudent or in compliance with the Requirements. (b) For purposes hereof, the term "Requirement(s)" means (1) any and all laws, rules, regulations constitutions, orders, ordinances, charters, statutes, codes, executive orders and requirements (now existing or hereafter applicable) of all Governmental Authorities having jurisdiction over Developer or other Persons, or the Project, or any street, road, avenue or sidewalk comprising a part of, or lying in front of, the Project Site, or above or below the Project Site (including, without limitation, the ADA and any of the foregoing relating to handicapped access or parking, the building code of the City and the laws, rules, regulations, orders, ordinances, statutes, codes and requirements of any applicable fire rating bUreau or other body exercising similar functions); (2) the Temporary and/or Final COs issued for the Project or the Infrastructure Improvements, as then in force; (3) any and all provisions and requirements of any property, casualty or other insurance policy required to be carried by Developer under this Agreement; (4) any and all terms, conditions or covenants of any and all easements covenants, conditions or restrictions of record, declarations, or other indentures documents or instruments of record; and (5) the Project Documents. ARTICLE XVIII NO LIABILITY FOR INJURY OR DAMAGE ETC. Section 18.1 CRA's Exculpation; Developer's Indemnification; Waiver of Subrogation. (a). The CRA Indemnified Parties shall not be liable to Developer for, and Developer shall indemnify, defend and hold the CRA Indemnified Parties harmless from and against, any loss, cost, liability, claim, damage, expense (including, without limitation, reasonable attorneys' fees and disbursements) penalty or fine incurred in connection with or arising from: (1) any injury (whether physical, economic or otherwise) to Developer or to any other Person in, about or concerning the Project Site or the Infrastructure Improvements; (2) any damage to, or loss (by theft or otherwise) of, any of Developer's property or of the property of any other Person in, about or concerning the Project Site, or the use or occupancy thereof, irrespective of the cause of injury, damage or lo;s (including, without. limitation, the acts or negligence of any tenant or occupant of the Project Site or of any owners or occupants of adjacent or neighboring property or caused by any construction or by operations in construction of any private, public or quasi-public 23 work) or any latent or patent defects in the Project Site; or (3) any Jet, omission or negligence of Developer or its Affiliates or of the contractors, agents, servants, employees guests, invitees or licensees of Developer or its Affiliates, including, without limitation, acts, omissions and negligence arising out of the Due Diligence undertaken by ~he Developer; except to the extent any of the matters described in clauses (1) or (2) are due to the gross negligence or willful misconduct of any CRA Indemnified Party. The CRA Indemnified Parties shall not be liable, to the extent of Developer's insurance coverage (if available to cover the loss and in any case exclusive of deductibles), for any loss or damage to any Person or property even if due to the gross negligence or willful misconduct of any CRA Indemnified Party and, to that extent, Developer relieves the CRA Indemnified Parties from such liability. Without limiting the generality of the foregoing, except to the extent caused by the gross negligence or willful misconduct of any of the CRA Indemnified Parties (and then only in such CRA Indemnified Party's proprietary capacity as opposed to its governmental capacity), the CRA Indemnified Parties shall not be liable for (1) any failure of water supply, gas or electric current (2) any injury or damage to person or property resulting from gasoline, oil, steam, gas, electricity, or hurricane, tornado, act of God, act of war, enemy action, flood, wind or similar storms or disturbances, water, rain or ice, or (3) leakage of gasoline or oil from pipes, appliances, sewer or plumbing works. Section 18.2 Notice of Iniury or Damage. Developer shall notify the CRA within thirty (30) days of any occurrence at the Project Site of which Developer has notice and which Developer believes could give rise to a claim of $1,000,000 (adjusted for inflation) or more, whether or not any claim has been made, complaint filed or suit commenced. Section 18.3 Contractual Liability. The obligations of Developer under this Article shall not be affected in any way by the absence or presence of insurance coverage (or any limitation thereon, including any statutory limitations with respect to workers' compensation insurance), or by the failure or refusal of any insurance carrier to perform any obligation on its part under insurance policies affecting the Project Site; provided, however, that if the CRA actually receives any proceeds of Developer's insurance with respect to an obligation of Developer under this Article, the amount thereof shall be credited against, and applied to reduce, any amounts paid and/or payable hereunder by Developer with respect to such obligation. Section 18.4 Defense of Claim, Etc. If any claim, action or proceeding is made or brought against any CRA Indemnified Party which is or may be subject to indemnification by Developer hereunder, then, upon demand by the CRA or such CRA Indemnified Party, Developer shall either resist, defend or satisfy such claim, action or proceeding in such CRA Indemnified Party's name, by the attorneys for, or approved by, Developer's insurance carrier (if such claim, action or proceeding is covered by insurance) or such other attorneys as the CRA shall reasonably approve. The foregoing notwithstanding, such CRA Indemnified Party may, at its own expense, engage its own attorneys to defend such CRA Indemnified Party, or to assist such CRA Indemnified Party in such CRA Indemnified Party's defense of such claim action or proceeding as the case may be. Section 18.5. .Notification and Payment. Each CRA Indemnified Party shall promptly notify Developer of the imposition of, incurrence by or assertion against such CRA Indemnified Party of any cost or expense as to which Developer has agreed to indemnify such CRA Indemnified Party pursuant to the provisions of this Article. Developer agrees to pay such CRA 24 Indemnified Party all amounts due under this Article within sixty J(60) days after receipt of the notice from such CRA Indemnified Party. Section 18.6 Survival. The provisions of this Article shall survive the termination of this Agreement. ARTICLE XIX REPRESENTATIONS AND WARRANTIES Section 19.1 Mutual Representations. (a) No Brokers. City,CRA and Developer each represents to the other that it has not dealt with any broker, finder or like entity in connection.with this Agreement or the transactions contemplated hereby, and each party shall indemnify the other against any claim for brokerage commissions, fees or other compensation by any Person alleging to have acted for or dealt with the indemnifying party in connection with this Agreement or the transactions contemplated hereby. (b) Authority to Execute. City, CRA and Developer each represents to the other that each Person executing this Agreement on behalf of City, CRA or Developer (or in any representative capacity), as applicable, has full right and lawful authority to execute this Agreement. Developer agrees to furnish to City and CRA on or prior to the date of execution of this Agreement true and correct copies of such instruments or documents evidencing to the CRA's reasonable satisfaction the authority of each such Person executing this Agreement on behalf of Developer (or in any representative capacity). Section 19.2 CRA and City Representations. CRA and City each represent and warrant to Developer that: (a) To the best of the CRA and City's knowledge, the Project is not in violation of any order or decree of any court of competent jurisdiction or any governmental agency and City or entity having jurisdiction. There are no pending or, to the best of the CRA's and City's knowledge, threatened judicial or administrative proceedings which, if determined adversely to the interest of the CRA and City, could materially affect the contemplated development or use of the Project Site as set forth in this Agreement or the other documents contemplated by this Agreement (collectively the "Project Documents" Exhibit "N"). (b) Prior Contracts. There are no existing agreements or contracts regarding the development of the Project Site other than those contemplated with the Developer under the Development Documents. (c) No Legal Conflicts. The execution, delivery and performance of its obligations under the Development Documents\~y the CRA and City will not: (1) violate, conflict with, result in a material ejefault (following notice and/or expiration of the related grace/cure period without cure or both, as applicable) under any agreement or other instrument to which the CRA and City is a party or by which the property may be bound or affected, or any requirements of law; (2) result in the creation or imposition of any lien whatsoever upon any of its assets, except 25 as may be permitted by the Development Documents; nor (3) fequire any authorization or consent from, or any filing with, any governmental authority, except as contemplated by the Development Documents. Section 19.3 Developer Representations. Developer represents and warrants to the CRA and City that: (a) Organization~ Legal Status. Developer is duly organized, validly existing and in good standing under the laws of its state of formation and; (a) is duly qualified to. transact business and is in good standing in the State of Florida; and (b) has all necessary approvals, governmental and otherwise, and full power and authority to own, operate and sell and construct the Project and otherwise carry on its business as now conducted and proposed to be conducted. Developer's correct legal name is set forth on the first page of this Development Agreement. (b) Power. Authorization: Enforceable Obligations. Developer has full power, authority and legal right to execute, deliver and perform its obligations under the Development Documents. Developer has taken all necessary action to authorize the execution of the Development Documents on the terms and conditions contained herein or as may be subsequently negotiated, and Developer has taken all necessary action to authorize the execution and delivery of its performance under the Development Documents. The officer or representative of Developer signing the Development Documents has been duly authorized and empowered to do so. The Development Documents constitute legal, valid and binding obligations of Developer, enforceable against Developer in accordance with their terms. ( c) No Legal Conflicts. The execution, delivery and performance of its obligations under the Development Documents by Developer or its members will not: (a) violate, conflict with, result in a material default (following notice and/or expiration of the related grace/cure period without cure or both, as applicable) under any agreement or other instrument to which Developer is a party or by which the property may be bound or affected, or any requirements of law; (b) result in the creation or imposition of any lien whatsoever upon any of its assets, except as may be permitted by the Development Documents; nor (c) require any authorization or consent from, or any filing with, any governmental authority, except as contemplated by the Development Documents. (d) No Litigation. Except as previously disclosed to the City and CRA, no action, suit or proceeding, or investigation, judicial, administrative or otherwise (including, without limitation, any reorganization, bankruptcy, insolvency or similar proceeding) currently is pending or, to the best of Developer's knowledge, threatened or contemplated against or affecting Developer or any of its members, partners or shareholders or the property that has not been disclosed by Developer in writing to City and CRA and which, if adversely determined, could reasonably be expected to have a material adverse effect on Developer's ability to perform under the Development Documents. (e) Financial Condition. Developer and each of its members are currently solvent. No change has occurred)n the financial condition of Developer or any of its members or their respective constituent equity owners, general partners or managing members, which would have a material adverse effect since the date of most recent financial statements submitted to the CRA and City with respect to each such party, other than has been disclosed in writing to the CRA and 26 City. (f) No Illegal Activity as Source of Funds. No portion of the Site has been or will be purchased, improved, equipped or furnished with proceeds of any illegal activity. (g) Complete Disclosure: No Change in Facts or Circumstances. Developer has disclosed to the CRA or City all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially inaccurate, incomplete or misleading. All information provided in or supplied with the bid for the Project, or in satisfaction of the terms thereof, remains true, complete and correct in all material respects, and no adverse change in any condition or fact has occurred that would make any of such information materially inaccurate, incomplete or misleading. Section 19.4 No Other Representation. Developer confirms that, except for the representations contained in this Agreement, (1) no representations statements or warranties, express or implied, have been made by, or on behalf of, City or CRA with respect to the Project Site or the transactions contemplated by this Agreement, the status of title thereto, the physical condition thereof (including but not limited to subsurface conditions) the leases and occupancies thereof or with respect thereto, if any, the zoning, wetlands or other laws, regulations, rules and orders applicable thereto or the use that may be made of the Project Site, or the presence or absence of Hazardous Substances on or under the Project Site, (2) Developer has relied on no such representations, statements or warranties (3) City and CRA shall not be liable to Developer, in any event whatsoever to correct any latent or patent defects in the Project Site, and (4) any and all copies of the environmental reports provided by the City or the CRA to the Developer have been delivered without representation or warranty. ARTICLE XX OMITTED ARTICLE XXI NOTICES, CONSENTS AND APPROVALS Section 21.1 Service of Notices and Other Communications. (a) Whenever it is provided herein that notice, demand, request, consent, approval or other communication shall or may be given to, or served upon, either of the parties by the other, or whenever either of the parties desires to give or serve upon the other any notice, demand, request, consent, approval or other communication with respect hereto or to the Project Site, each such notice, demand, request, consent, approval or other communication (referred to in this Section 21.1 as a "Notice") shall be in writing (whether or not so indicated elsewhere in this Agreement) and shall be effective for any purpose only if given or served by (i) certified or registered United States Mail, postage prepaid, return receipt requested~ (ii) personal delivery with a signed receipt pr (iii) a recognized national courier service, addressed as follows: IF TO DEVELOPER: 27 IF TO CRA: IF TO CITY: Any Notice may be given, in the manner provided in this Section 21.1 (1) on either party's behalf by its attorneys designated by such party by Notice hereunder, and (2) at Developer's request, on its behalf by any Recognized Mortgagee designated in such request. I (b) Every Notice shall be effective on the date actually received, as indicated on the receipt therefor or on the date delivery thereof is refused by the recipient thereof. (c) All references in this Agreement to the "date" of Notice shall mean the effective date, as provided in the preceding subsection (b). Section 21.2 Consents and Approvals. (a) All consents and approvals which may be given under this Agreement shall, as a condition of their effectiveness, be in writing. The granting by a party of any consent to or approval of any act requiring consent or approval under the terms of this Agreement, or the failure on the part of a party to object to any such action taken without the required consent or approval, shall not be deemed a waiver by the party whose consent was required of its right to require such consent or approval for any other act. The Executive Director of the CRA in 'conjunction with the CRA Board of Directors shall be deemed to have all necessary authority to act on the CRA's behalf and to give all approvals hereunder, and that any reference herein to consent of the CRA shall mean the Executive Director in conjunction with the CRA Board of Directors. (b) All consents and approvals which may be given by a party under this Agreement shall not (whether or not so indicated elsewhere in this Agreement) be unreasonably withheld or conditioned by such party and shall be given or denied within the time period provided, and if no such time period has been provided, within a reasonable time. Upon disapproval of any request for a consent or approval, the disapproving party shall, together with notice of such disapproval, submit to the requesting party a written statement setting forth with specificity its reasons for such disapproval. (c) If a party entitled to grant or deny its consent or approval (the "Consenting ~") within the specified time period shall fail to do so, then, except as otherwise provided herein, and provided that the request for consent or approval (and the envelope in which such request is transmitted to the extent permitted by the carrier) bears the legend set forth below in capital letters and in a type size not less than that provided below, the matter for which such consent or approval is requested shall be deemed consented to or approved, as the case may be: "FAILURE TO RESPOND TO THIS REQUEST WITHIN THE TIME PERIOD PRQVIDED IN THE DEVELOPMENT AGREEMENT BETWEEN THE BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY ("CRA") AND INTOWN PARTNERS, LLC SHALL CONSTITUTE AUTOMATIC APPROVAL OF THE 28 MA TTERS DESCRiBED HEREIN WITH RESPECT TP SECTION [FILL IN APPLICABLE SECTION] OF SUCH DEVELOPMENT AGREEMENT." ARTICLE XXII INDICTMENT. INVESTIGATIONS. ETC. Section 22.1 Cooperation by Developer. Developer shall cooperate fully and fflithfully with any investigation, audit or inquiry conducted by any Governmental Authority that is empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by a Governmental Authority that is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the investigation, audit or inquiry relating to affecting the performance of this Agreement or any other Project Document. In addition, Developer shall promptly report in writing to the City Attorney and the CRA' s General Counsel any solicitation, of which Developer's officers or directors have knowledge, of money, goods, requests for future employment or other benefit or thing of value, by or on behalf of any employee of City or CRA, or other Person relating to the procurement or obtaining of this Agreement or any other Project Document by Developer or affecting the performance of this Agreement. ARTICLE XXIII OMITTED ARTICLE XXIV MISCELLANEOUS Section 24.1 Governing Law and Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, without regard to principles of conflict of laws. Venue of all proceedings in connection herewith shall be exclusively in Palm Beach County, Florida. Section 24.2 Dispute Resolution. All Disputes under this Agreement shall be fIrst subject to binding Arbitration. Section 24.3 Attorney's Fees. In the event of binding arbitration, the Arbitrator may award the prevailing party its reasonable attorneys' fees and costs. In the event of litigation, the prevailing party shall be entitled to an award of its reasonable attorneys' fees and costs (including all fees and costs through all levels of appeal. Section 24.4 ,No Waiver of Sovereign Immunity. Nothing contained in this Section or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the eRA's liability and the City's liability, as set forth in ~768.28, Fla. Stats" or of any other constitutional, statutory, common law or other protections afforded to public bodies or 29 .y governments. Section 24.5 References. (a) The captions of this Agreement are for the purpose of convenience of reference only, and in no way define, limit or describe the scope or intent of this Agreement or in any way affect this Agreement. (b) The Table of Contents is for the purpose of convenience of reference only, and is not to be deemed or construed in any way as part of this Agreement. (c) Nothing in this Agreement or in the parties' acts or omissions in connection herewith shall be deemed in any manner to waive, impair, limit or otherwise affect the authority of the CRA or City in the discharge of its police or governmental powers. (d) All references in this Agreement to the terms "herein", "hereunder" and words of similar import shall refer to this Agreement, as distinguished from the paragraph, Section or Article within which such term is located. Section 24.6 Entire Agreement, Etc. (a) This Agreement, together with the exhibits and attachments hereto, contains all of the promises, agreements, conditions, inducements and understandings between the City, CRA and Developer concerning the Project and there are no promises, agreements, conditions, understandings, inducements, warranties or representations, oral or written, express or implied, between them other than as expressly set forth herein and in such attachments hereto or as may be expressly contained in any enforceable written agreements or instruments executed simultaneously herewith by the parties hereto, except for the other Project Documents. (b) No covenant, agreement, term or condition of this Agreement shall be changed, modified, altered, waived or terminated except by a written instrument of change, modification, alteration, waiver or termination executed by City, CRA and Developer. No waiver of any Default or default shall affect or alter this Agreement, but each and every covenant, agreement, term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent Default or default thereof. Section 24.7 Invalidity of Certain Provisions. Any provision of this Agreement or the application thereof to any Person or circumstances is, to any extent, finally determined by a court of competent jurisdiction to be invalid and unenforceable, the remainder of this Agreement, and the application of such provision to Persons or circumstances other than those as to which it is held invalid and unenforceable shall not be affected thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Section 24.8 Successors and,Assigns. The agreements, terms, covenants and conditions herein shall be bindin& upon, and inure to the benefit of, City, CRA and Developer and, except as otherwise provided herein, their respective successors and permitted assigns and shall be construed as a covenant running with the land. 30 " Section 24.9 Non-liability of Officials and Employees~ No member, official or employee of the CRA, the City, or any other governing body (including, without limitation, the Chair or Members of the CRA, the Mayor or the Commissioners) shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by the City or eRA for any amount or obligation which may become due to Developer or successor under the terms of this Agreement; and any and all such personal liability, either at common law or in equity or by constitution or Statute, of, and any and all such rights and claims against, every such Person, or under or by reason of the obligations, covenants or agreements contained in this Agreement or implied therefrom are expressly waived and released as a condition of, and as a cons\deration for, the execution of this Agreement. Section 24.10 Conflict of Interest. Developer represents and warrants that, to the best of its actual knowledge, no member, official or employee of the CRA or the City has any direct or indirect financial interest in this Agreement, nor has participated in any decision relating to this Agreement that is prohibited by law. Developer represents and warrants that, to the best of its knowledge, no officer, agent, employee or representative of the City or the CRA has received any payment or other consideration for the making of this Agreement, directly or indirectly from Developer. Developer represents and warrants that it has not been paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers, and attorneys. Developer acknowledges that City and CRA are relying upon the foregoing representations and warranties in entering into this Agreement and would not enter into this Agreement absent the same. Section 24.11 No Partnership. The parties hereby acknowledge that it is not their intention under this Agreement to create between themselves a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or agency relationship for any purpose whatsoever. Accordingly, notwithstanding any expressions or provisions contained herein, nothing in this Agreement or the other Project Documents shall be construed or deemed to create, or to express an intent to create, a partnership, joint venture, tenancy-in-comrnon, joint tenancy, co-ownership or agency relationship of any kind or nature whatsoever between the parties hereto. The provisions of this Section shall survive termination of this Agreement. Section 24.12 No Permit. This Agreement is not and shall not be construed as a development permit, development approval or authorization to commence development, nor shall it relieve the Developer of the obligations to obtain necessary Comprehensive Plan amendments and development approvals that are required under applicable law and under and pursuant to the terms of this Agreement. Section 24.13 Not a Section 163.3220 Fla. Stats. Develo{)ment Agreement. Developer and City acknowledge and agree that this Agreement is not intended to and does not constitute a Development Agreement under the Florida Local Government Development Agreement Act (Sections 163.3220 - 163.3243, Fla. Stats.). Section 24.14F Time Periods. Any time period which shall end on a day other than a Business Day shall be deemed to extend to the next Business Day. Section 24.15 No Third Partv Beneficiaries. Nothing in this Agreement shall confer upon 31 any Person, other than the parties hereto and their respective succ~sors and permitted assigns, any rights or remedies under or by reason of this Agreement; provided, however, that a Developer lender shall be a third party beneficiary hereunder to the extent such Recognized Mortgagee is granted rights hereunder. Section 24.16 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, DEVELOPER, CITY AND CRA WAIVE KNOWINGLY AND VOLUNT ARIL Y FOR ITSELF AND ALL PERSONS CLAIMING BY OR THROUGH THEM, ALL RIGHT TO TRIAL BY JURY IN ANY OTHER JUDICIAL PROCEEDINGS HEREAFTER INSTITUT.ED. IN RESPECT OF THIS AGREEMENT. Section 24.17 Recordation. A short form Memorandum of Development and Disposition Agreement, in the form attached hereto as Exhibit "X", shall be recorded by the Developer. The CRA agrees to execute the short form Memorandum of Agreement for this purpose. CITY OF BOYNTON BEACH By: Title: BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY By: Title: INTOWN PARTNERS, LLC By: Title: 32 HEART OF BOYNTON COMMUNITY REDEVELOPMENT MARTIN LUTHER KING CORRIDOR PROJECT BOYNTON BEACH, FLORIDA DEVELOPMENT AND BY AND~QNG CITY OF BOYN;:J?ON .. . . < ,,/ /' ("City:') '''''.;:.:' ,',,:.'( 'i." :". (::." ,',: .', \:,:,:' BOYNTON BEA~"f:COMMUNITYR:ErrEVELOPMENT AGENCY ("CRA") AND LLC ("Developer") , .:.. Dated as of _.2006 C:RARevised DRAFT -Confidential Gl-m02/10/2006 WPB:273992:2 IV. V. VI. +% VII. Acquisition of Third-Party Properties flPd'G.i~/CRA Transaction........................... ........................ Page +9 VIII. Developer Commitments........ ............. .. ..~.:{...~t............... .... Page;g Financing. . . . . . . . . . . . . . . . . . . . . . . . . . . .... . . . . . . .. . . . . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . Page ~ Project Construction, ope~j~on and Man~!7~e~t~~iqUirements.......... Page ~ Intentionally Omitted.,....;~\.... . .. . ... . ..... ;~..... ;}.~:. ......................................... 1\")~"i>':'}'_:-':;':; __,J~--~-;._-,- _.', P ') 1 i-:f;: age ::H- "'''F;,{~"; . XII. Com~~t>.:!.,Q,~'.'elopm~~"f>l~'tlntentionally Omitted..;.....:.:. .......:... ........... .... Page ~ I. II. III. IX. X. XI. TABLE OF CONTENTS Definitions..................................................................... .. Page ~ Page & The Project................................................. Regulatory Development Approvals.................. Page 9 Effectiveness, Parties' Obligations, Default;.!........... .0....... Project Representatives, Key Personnel, PtOJ(~lj Relocation Assistance PolicyProcedure.. . .... .~:'1';~ -l-+ Page ~ Page ~ Page ~ Page ~ Page J4 Page ~ Page 36 Page J-9 Page 4Q Page e- Page e- WPB:273992:2 XXIV. Miscellaneous....................................................................... Page 4J- WPB:273992:2 Exhibit A Exhibit A-Ii Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit I Exhibit J Exhibit M Exhibit N Exhibit 00 Exhibit P Exhibit Q Exhibit R LIST OF EXHIBITS Conceptual Master Project Site Plan Conceptual Density, Intensity and Mix of Use Table Conceptual Master Development Schedule Development Approvals .i City Properties - Property Control Numbe~~,i:j,i~ CRA Properties - Property Control Numbers>;:" Third:-Party Properties - Property Control OmittedRelocation Assistance Policy Omitted Omitted Form of Interloeal "^~greementOmittearr Project Documents ..',:.;.,.\~ Required Contract Provisions Memorandum of Development and Disposition N Insurance Requirements Site Legal Description ,::;'." WPB:273992:2 MLK CORRIDOR DEVELOPMENT CITY OF BOYNTON BEACH THIS DEVELOPMENT AND DISPOSITION AGREEMENT (the "Agreement") is made this _ day of , 2007, by and among the City of Boynton Beach, Florida, a municipal corporation existing under the laws of the State of Florida (the "City"), the Boynton Beach Community Redevelopment Agency, a public body corporate and politic created pursuant to Chapter 163, Part III, Fla. Stats. (the "CRA") and Into\yn Partners, LLC, a Florida limited liability company (the "Developer"). WITNESSifi'H: *' -:;~} '; ,Developer on ("MLK "-; :,; <,':. -',' ". '..: WHEREAS, the CRA approved the issuance of~~~,~~st,fQl':' 0 '. for the redevelopment of the_Martin_Luther King'E3~tCop;id6r in the fr Corridor Development"); and WHEREAS, Developer submitted a proposal ("Developehf'sProposal") in response to the RFP; and WHEREAS, after presentations by.~~~~t() CRA selected the Developer's Prop ", hus Developer for the MLK Corridor Devel 'ent; a~ public input, on August 17, 2006, the eloper as the preferred Master WHEREAS, the CRA,,~l~y and Developer agreement concerning their respe<;:tive obligations; and into a definitive WHEREAS, the Dey,~l()p~r's Proposal is hereby merged into and completely superseded by this Agreement; and "};l-IE~~,~e pevelopefh,~de~eloped a conceptual master project site plan and a conceptlii};illlas'teideye, ~nt schedule'fQr irnplementation of the plan, which are the subjects oft' " ement; aHd" . "'W, THEREFOREP tkthis Agreement hereby covenanted and agreed by and among the parties upon the terms, covenants and conditions hereinafter set ARTICLE I DEFINITIONS For all purposes of this Agreement, the following terms shall have the following meanIngs: "ADA" means The Americans with Disabilities Act of 1990, as amended, together with any rules or regulations promulgated thereunder, or any successor act thereto. WPB:273992:2 RGSZ 434677 2 1/4/07 "Affiliates" means, with respect to the Developer, any other Person directly or indirectly controlling or controlled by Developer, or under direct or indirect common control with the Developer or any charitable entity or trust created by any of the foregoing. "Agency" or "CRA" means the Boynton Beach Community Redevelopment Agency and any assignee or transferee of all of the Agency's rights, obI' tions and interests herein, from and after the date of any such assignment or transfer thereo. . n of law or otherwise); provided, however, that any such assignment shall be' nly if such assignee or transferee is a governmental or quasi-governmental body or e without limitation, the City or any agency thereof). "Agreement" means, collectively, this De~~;l~' exhibits and attachments hereto, as any of the sam' restated, severed, consolidated, extended, revised either in accordance with the terms of this Agreemenfor by g responsibility for the s the context requires. "Architect" means the architect de$l overall design of the Project or any "City" means the City of13oynton Beach,-Elorida. i0: 'i1 "City/CRA Closing City/CRA Sale TransactioBi ...., " shall mean' led in Section '~j'Wlien the closing(s) shall be held on the of this Agreement. s" means,: ain parcels of real property within the MLK Corridor hich a'::qy the City, which are required for development of e,acquired 'yeveloper from the City under the terms set forth in , ontrol numbers for the City Properties are set forth on Exhibit x:: lude all improvements now or hereafter situated on the said ores, easements, rights-of-way, privileges and appurtenances . 'j~ll,~luding, without limi .,.. , n, all leases and all rents and other income derived therefrom permits, en~itlernents and governmental approvals pertaining to the said body. the City Commission or its successors as the City's governing "Completion Guarantee" shall mean any and all guarantees provided to assure completion of construction of the Project or a Project Component. "Completion Guarantor" shall mean any person or entity giving a Completion Guarantee. "Conceptual Master Development Schedule" means the development schedule attached WPB:273992:2 RGSZ 434677 2 ]/4/07 2 hereto as Exhibit "B," as it may be amended from time to time pursuant to Article II of this Agreement.~ "ConceDtual Master Plan" shall mean the Dlan for development of the MLK Corridor Development as proposed by Developer in its RFP. which is.attaJ;hed.hereto.as Exhibit A. as it may be amended from time to time pursuant to Article II of this agreemet.~ "Concept Plan" has the same meaning provided in and their or and the "County" means Palm Beach County, "CRA Indemnified Party or Parties" me respective elected and appointed officials (incluct Commissioners), employees, permitted successors "CRA Master Plan" or "CRA Plan" means. tJi:eijitJ~ of Boynton Community Redevelopment Plan, as the same may be amended from tIme tOtlt):1~;-< . -~;-' "CRA's Project Representative" hasitherrreaningprovided in Section 5.1 (b) below. ',' ., ':"..':.::. :'<>"<---:---""---:.."-'-:-\~':;-':::;':: "CRA Properties" means those certain parcels ofreal:p~Qperty within the MLK Corridor Development Project Site which are owned by the eRA, which are required for development of the Project and which must be a~'luired by Developer fro~,the CRA under the terms set forth in this Agreement. The property c9p:ttol numbers for the (3~ Properties are set forth on Exhibit "E." The CRA Properties sh~lljI:tclude all impr6vemelJ.tshow or hereafter situated on the said parcels, option rights, strips~_gap~~ig?res, easements, rights-of-way, privileges and appurtenances thereto, including, without limitat~~IJ:,allleases and all rents and other income derived therefrom and all licenses, permits, entitlements and governmental approvals pertaining to the said premIses. dition or event, or failure of any condition or event to occur, w~~~~~"constitutes, or won ; .<.: the giving of notice, lapse of time or both, constitute (in aC,S9~~li\Ilce with the terms ofthi$~~greement), an Event of Default. . "Defl;tult Notice" has the meaning provided in Section 4.5(c) below. "Developer" ..1TIeans~aster Developer for the MLK Corridor Development, Intown Partners, LLC, and ally' assignee or transferee of the Developer that is permitted under this Agreement, from and afterthe date of such permitted assignment or transfer. "Developer's Project Representative" has the meaning provided in Section 5.I(a) below. "Development Approval" or "Development Approvals" means all City and CRA approvals, consents, permits, amendments, zonings decisions, conditional uses or variances as well as such other official actions of the federal, state or local governments that are necessary to develop the MLK Corridor Development as contemplated by the Agreement, as described in WPB:273992:2 RGSZ 434677 2 1/4/07 3 Article III below. "Due Diligence" means examination of the history and physical characteristics of any portion of the Project Site to determine if it is suitable for development for the purpose intended as set forth in the Agreement "Effective Date" means the date this Agreement is parties hereto. and delivered by all "EEO Program" shall have the meaning provided 11 below. "Event of Default" has the meaning by the City's Building "Governmental Authority or Autho. .. the City, the County, the CRA, agency, department, commission, bo (including any county or district) of:,,<)[ having jurisdiction over Developer or 0 r or under the the Infrastructure Improvementstt:)tIa.nY portion-m~reof). of America, the State, and any tality or political subdivision ;existing or hereafter created, or any portion thereof) or over "Improvements" means all items which are to be constructed as part of the MLK Corridor Development. "Infrastructure Improvements" means additional infrastructure and/or renovations and repairs to existing infrastructure required for the Project or a Phase thereof. "Infrastructure Improvements Budget" shall mean the detailed budget for the WPB:273992:2 RGSZ 434677 2 1/4/07 4 construction and development of the Infrastructure Improvements for the Project or a Phase thereof. "Interim Milestone Dates" are the estimated dates for completion of a certain activities as provided in the Conceptual Master Development Schedule, attached hereto as Exhibit "B." m "Notice" has the meaning provided in "Parcel" means a parcel of real property Development or a portion thereof. of the MLK Corridor "Party" means Developer, the CRA ()rthe'G:iiy asindicated !',,~\J;.!'::-^_;:ns "Parties" means, collectively, the);lT>evelop ). ~\1';~~ "Person" means an indiY;!~\lal, corporation, part ~hip, joint venture, limited liability company, limited liability partrtet$IDp, estate, ',' W)' ..... orated association or other entity; , l ,:;,,:'.,'_ .," any Federal, state, county or municipal gov..nt.. or any bureau, department, political subdivision or agency therep"~. c~ny fiduciary a'c1:ing in such capacity on behalf of any of the foregoing. . .. . '-'.c"'; "Plans-ait& '. ifications;'means, schematic plans, design development plans and constru9ti9~pfansfo "'~~ct comp~berit~ /,-);::;,:,">V':_; , :,' liii- 'J:"i'::<,~" ) "all have the meaning as set forth in Section 4.2. oject" means the L',4escribed in A orridor Development depicted and described in Exhibit "A" ell. "'.".'. ::-<",>':.<'" "Proj~df,eotnponenf~;or "Component" has the meaning as set forth in Section 3 .1. . , "Project Doc~~rits" means this Agreement, the Exhibits attached hereto. and--the Interlocal Agreement artdthe other documents listed on Exhibit "N" hereto. "Project Site" means the property depicted in Exhibit "R" and described in Section 7.1 below, for development of the MLK Corridor Development. "Redevelopment Trust Fund" or "Trust Fund" has the meaning pursuant to Section 163.387, Fla. Stats. WPB:273992:2 RGSZ 434677 2 1/4107 5 "Relocation Assistance Policy" is as described in Article VI. "Requirements" has the meaning provided in Section 17.1 below. "State" means the State of Florida. "Substantial Completion" means (i) the' .' ,respect to the Project or a Project Component in substart Plans and Specifications therefor and all applicable Require . denced by t ce of a Final CO, together with a certification by the Architect . . oject Representative and that such Improvements have been substantially comp eted ce with such Plans and Specifications and all applicable Requirement~;;%~ii), delivery , of a final "as-built" survey showing the completed Improvement~;'(itr,;~~livery to the ;a full and complete set of "as-built" Plans and Specifications, orttI,~~,equiy~~~t~ rtified by t Architect, as amended, for construction of Improvements; a~~'(iv) deli~~~l~ ~ CRA of evidence reasonably satisfactory to the CRA that such Impr0"X~ll1ents)l1ave -b~,.,~tantially completed, including receipt of final contractor affidavits and lien waivers and ases, except for any such liens being contested in accordance witl1the provisions of this Agreement. "Sufficient Number Developer, the Parcels 0 Developer, will allow for with the COI];c,~Pt\1 ,Master Phi arcels" -meahsW~~rillmber of Parcels, according to the e Developer, City and CRA together that, according to the cement of the Project or a Phase thereof in accordance ~o Section 7.1 of this Agreement.. ~-~;,-; , ~'fl taxabl~properties abov Redevelopment Trust Fun "Tax Incr eBt'!Revenue" mean ad valorem taxes collected on ',Jncrement Base year within the Project Site and deposited in the ~'Tax Increment Base Year" means , the year of the most recent ad valorem tax assess~~ntr()ll used by eac~{~~xing authority prior to the effective date of the ordinance providing for 'the:fynding of the' Redevelopment Trust Fund. "Term" ',' . ',period commencing on the Effective Date and, subject to earlier termination as pro,;,. ".... under, expiring on the earlier to occur of the dissolution of the CRA or Substantial Completion of the Project. "Third-Party Properties" shall mean all properties within the Project Site that are owned by persons other than Developer, the City or the CRA~ "TIF" means tax increment financing pursuant to Chapter 163, Fla. Stats., including TIF Bonds or BANS or other obligations, including CDD Bonds, _which are secured by Tax WPB:273992:2 RGSZ 434677 2 1/4/07 6 Increment Revenue pursuant to Section l63.3 87, Fla. Stats. "TIF Bonds" means any bonds or other long term financing permitted to be issued by the CRA or the City under Chapter 163 or 166, Fla. Stats. "Title Commitment" shall mean a commitment from the Title Company to issue the Title Policy. "Title Policy" shall mean a title policy i Company, insuring Developer's title interest in "Unavoidable Delays" means delays due e following ed that such delay is beyond a Party's reasonable control): strikes,,~> ockouts, acts of God, inability to obtain labor or materials, war, enemy action, civil cd, fire, casualty, abnormal weather conditions, litigation, including eminent domain litigafi Urt order which causes a delay, delays in governmental approvals, the apptjcanonof any Req<'ent, or other such cause beyond such Party's reasonable controL,S'P:9h P~sli~lJ use reasonable good faith efforts to notify the other Party not later than twenty~:(20) da~~,'~~ . P~rty knows of the occurrence of an Unavoidable Delay. In no event shall (i~L~ny P '. ','s fi I:,;~ndition or inability to fund or obtain funding or financing consti~pte ari"Una' . ble '.~'"".. .with respect to such Party, and (ii) any delay arising from a P~:s (or its\/.'ate's),~efault under any Project Document constitute an "Unavoidable DelaX!t.\Vith respectt~#'~'9h~~'s obligations hereunder. :,U . .... ;(:;(~"';" "Workforce Housit;19~'l11e,ans housing that which will be sold or rented to persons earning between 60% to lQ.40%orthe Palm Beach County median household income, adjusted for household size. ARTICLE II THE PROJECT : ):';' ~::,' :.t~:'_~]S;:~--; 2.1 Proiect Site'~;~ including south side of in Exhibit "R." eet Site is from the east side of North Seacrest Boulevard to and . ,Vbetween the north side of N .E. 9th Avenue to and including the tie, as set forth in the legal description of the Project Site contained Section 2.2 Proiect Description (a) The Project consists of a cohesive plan for a mixed-use development composed of single and multifamily housing and neighborhood retail with service uses, as depicted on the Conceptual Master Plan attached as Exhibit "A" and the Conceptual Density, Intensity and Mix of Use Table attached as Exhibit A-I. which provides for ## residential units and ## square feet WPB:273992:2 RGSZ 434677 2 1/4/07 7 of retail/commercial space. attached hereto as Exhibits "fi" and ",,\ i. "L: , . 'c.<;,-., .""-.,:,-,, (c) Upon the Developer notifying tll.~'~~~t. a.l1d>}CRA sufficient number of Parcels have been acquired by the Partie~)!<:>ilptoceed wit or a Phase thereof in accordance with the Conceptual Master P,lj,b:~, oper shall p cause to be prepared a detailed "Master Site Plan" for the Pf()j~t hase thereof with which the Developer wishes to proceed. The Master Site PlanS'hall nce with the Cit 's Lar e Scale Amendment A lication re uirements andshall include . representation of I) the location of proposed commercial, residenti, other use , roposed densities and intensities of the proposed uses at each ;l~, :.... proposed t sition between uses and densities and intensities; 4) a depiction~f~the nU1l'!Q'~'J~c.~~ion of workforce housing units within the Project and/or Phase thereof;'. 5) adepic n.'fof:all infrastructure improvements required to implement the Project or Phase thereof; and,6} ..... .The Master Site Plan, once submitted to the City and CRA Plll'~'lJ:ant to Section 7.1 oftlUS agreement, may be amended, with the approval of the City and C~iasnecessaryd.:4er~o,.cl:l~ged assumptions and conditions or as required to obtain the nec~ DevelopmejWt':~~Qvals. The City and CRA agree that agreement to the amendm~ . +'1-aster Site Plail"sh'all not be unreasonably withheld, delayed or denied. Nothing in thi 'f:t;l is intended to commit, limit or restrict the powers and responsibilit' 89 ' 5=ity an '~(;~ing under their police power/quasi-judicial capacities with regar'r~ conslr~~cpevelopment Approavls required by the Project or a Phase' , t'i' the ~sterSite Planes). (d) Section 2.3 Sequence of Development/Phasing. - (a):};'heiRr"pject will commence, pursuant to the terms of this Agreement and the "Conceptual';M~" ev ment Schedule" attached hereto as Exhibit B. until such time as Develo er subfft'" and CRA ursuant to Section 7.1 of this a reement a Master Development schell'1~.'I.~8h will supercede the Conceptual Master Development Schedule.,:, '.":"":'.~.--' :,.. (b) Upon the Developer notifying the City and CRA in writing that a sufficient number of Parcels have been acquired by the Parties to proceed with the Project or a Phase thereof in accordance with the Conceptual Master Plan, Developer shall prepare or cause to be prepared a detailed "Master Development Schedule" for the Project or Phase thereof, which will supercede the Conceptual Master Development Schedule and which will contain the following Milestones in accordance with the deadlines set forth in this Agreement: I) the date on which applications WPB:273992:2 RGSZ 434677 2 1/4/07 8 for all required Development Approvals for the Project or Phase thereof are to be submitted; 2) the date when Plans and Specifications will be submitted for review to the City and CRA; 3) (financial milestones); 4) the date on which construction will commence pursuant to Article _; 5) the timeline for implementing the Relocation Program set forth in Article _; 6) ..... . The Master Development Schedule, once submitted to the City and CRA pursuant to Section 7.1 of this agreement, may be amended, with the approval of the City and CRA, as necessary due to changed assumptions and conditions or as required to obtain the necessary Development Approvals. The City and CRA agree that agreementtQ the~endment of the Master Developmemt Plan shall not be unreasonably withheld,d~,t denied. If the Project is completed in Phases, the First Phase Master D~V'~J9pmeIl will be superceded by Master Development Schedules for subsequent .. of th are tQ be submitted to the City and CRA after the Land Acquisitio Project in conformance with this Section 2.3 and Section 7:. provision is intended to commit, limit or restrict the powers < ............. and CRA in acting under their police power/quasi-judicial cap' regard to reviewing and considering any Development Approavls required by the Pr thereof in connection with any Master Development Schedule. ARTICLE III DEVELOPMENTAPPRO~~LS Section 3.1 and Fast-Track Processing. Eac' . on a re ular monthl basis durin the "Pre-A roval Period" provide the otherPartyj~ith a written report describing the status of its efforts to secure the Development Approvals.'1\s reasonably requested by each Party, the Parties shall meet to discuss these efforts and the information provided in such reports. CfLFollowing acquisition of a sufficient number of parcels pursuant to Section 7.1 of this Agreement, the Developer, the CRA or the City, as applicable, shall apply for all remaining Development Approvals necessary to develop the Project pursuant to the Master Development Schedule submitted to the City and CRA pursuant to Section 7.2 of this Agreement. WPB:273992:2 RGSZ 434677 2 1/4/07 9 consider taking other govel"f!t~lliti~~ions: The term "Developm'en~ L^.pprovals" 'as used in. this L'\greement sbal~'l'l'l~,,!l~ll CIty. alf~;;;~~\~pprovals, consents, permIts, amendments, rezonmgs, conditio~~i,~~:~~;;~~;ir{.~~s as vi~lr~i~~~:~,?ther official actions of the federal, state or local gove~.~~;i~JHiifi::~~;;~~~.~s~ry to cfe;r.~~9p the Project as contemplated by this L'\greement, incl~~g,without lirriit~1!~~,;~?se approvals set forth on Exhibit "C," attached hereto. All pal't~~~ereto shall use thei!t~~~j~~~fforts to apply for the Development i\ppro'.'als pursuant to the Ma"Development Schedule~' ' (b)l11e obligations of~parties to obtain the Development Approvals shall be deemed satisfiedem~r~fill~d at st!!\ll1'time as the Development L^.pprovals are fully adopted by all requisite federe.~?~!~,.~~~or city governmental actions with conditions, if any, reasonably acceptable to tn.e~~f1.~rthe City and the C~'\, and the same ha','e become final, bi~ding and no longer subJect. t~;:,;!!weal. In the e'lent any of the Development Appro'lals mclude a requirement that the eity' or CRf.., as a property owner, provide its joinder or consent to the De'leloper, the City and the CR.^. agree to provide such joinders and consents. (~e) TO BE FURTHER NEGOTIATED WITH CITY/DEVELOPER -The CRA and City agree, to the extent not otherwise prohibited by the Florida Building Code or other applicable law, the City will "Fast-Track Permits and Approvals." Fast- Track Permits and Approvals means that Developer may submit separate Plans and Specifications as to a portion of WPB:273992:2 RGSZ 434677 2 1/4/07 10 the Project then being built; e.g, the residential development, and that City will assign senior staff persons to be in charge of processing the required permits. Under Fast-Track Permits and Approvals, Developer may separately request and City shall separately issue the following permits for the various portions of the Project to be constructed: (a) demolition; (b) formal life safety review; (c) pilings; (d) foundation; (e) structural framing and exterior cladding (collectively, shell permit); (f) interior framing and interior partitioning; (g) full mechanical, electrical and finish package; (h) all other permits or appr yals nesessary for the completion of the construction of that portion of the Project being bui . i~r shall provide as many copies of the Plans and Specifications as necessaIj'Jor th,.: "'epartments to review the Plans and Specifications simultaneously (instead qt~~quentik xtent such simultaneous review is not prohibited by the Florida Buildingi ., .ae or ot' law. City shall also Fast- Track Processing of any necessary new ro " ..iti ds for the Project. Further, it is understood and agreed upo .. ......f~ hibited by the Florida Building Code or other applicable'cla, Engineeringof Develo ment and the De artment of'~b1i and Specifications and/or work for portions of the Pfbject Plans and Specifications for the entire Project. However, in nb'e, work to be performed on any portion ofth~ Et'(>ject without an": Specifications for that portion of the Project. forCooperation in the Application for Development Approvals. (a) Promptlyf.()ll~wing the date of this Agreement, and immediately follo\ving the acquisition of a suffieient number of parcels as pro'lided in Seotion 7.1 of this ,\greement, Developer, the City and the CR}. shall initiate and diligently pursue the Development ,^~ppro'lal applioations in substantial accordance '.vith the Master Development Schedule submitted to the City and CRi'~ pursuant to Section 7.2 of this ,\greement (b) The City and the CRA shall consent to the filing of all applieations for the foregoing as necessary, and that the Developer may file applications on behalf of the City and CR.\ when WPB:273992:2 RGSZ 434677 2 1/4/07 II appropriate. In the e','ent this :\greement requires modifications of any comprehensive plan, ordinances, resolutions, rules or regulations of the City, the CR.^. or other gO'lernmental entity which must (as a matter of la\'.') be initiated by the City or the CR.^., then, any modifications to such ordinances, resolutions, rules and/or regulations "vill be initiated by the City and/or the CR}. follo'Ning the date of this f.greement. Developer, City and CR!. agree that Developer shall act us the City's and/or the CR.'\'s agent on all Development ,^.pprovals for '",hich the City uncI/or the CRt. shall be required to be the applicant. Dec;y.!;:lloper agrees to pay all application . . . ,~~" ..,'" . . which . Limitations,;, '1,' ..'".; ',':;:".:,! i)(~ Ie addition to eoop~t~ in obtaining the Development Appro','als, Ithe City and the CRA;t9l. . tent permitted,~t>t'14~, shall cooperate and assist Developer in the applications for and proces,~~y and.. Ddevelopment Aapprovals or other appro'/als with respect to the develop'! . . P including, without limitation, any building permit requested by the Developer) uired to allow the construction of the Improvements as long as and to the extent that s '. vements are consistent with the terms of this Agreement and as long as such cooperation aft ssistance does not include the exercise of the City's and the CRA's police power or arise out of the exercise of the City's and the CRA's powers when acting in a quasi-judicial capacity. The City and the CRA will process all such Development Approval applications in a timely manner as permitted by law and agree to expedite such approvals to the extent practicable. However, the City and the CRA shall not be obligated to expend any funds in support of any such applications~;- apart from customary and routine internal staff and other processing costs. WPB:273992:2 RGSZ 434677 2 1/4/07 12 (b) As provided above, the parties recognize and agree that certain provisions of this Agreement may require the City and/or its boards, departments or agencies, or the CRA, acting in their police power/quasi-judicial capacities, to consider certain changes in the City's Comprehensive Plan, City zoning code or other applicable City codes, plans or regulations, the CRA Plan, as well as to consider other governmental actions. It is acknowledged that the City and/or its boards, departments or agencies, or the CRA mu~l.observ~. all obligations as regulatory bodies, and that all actions taken hereunder shall be done i,' ., with the requirements of the Florida Statutes, the City Charter and City ordin'U}ces. is Agreement is intended to limit or restrict the powers and responsibilities,.9~~e Cit CRA in acting on such applications by virtue of the fact that the City an," e C requ' ed to consent to such applications as a property owner or pu' a statutes. The parties further recognize and agree that the enly, fully, freely and fairly in full accordance with law an procedura stantive due process to be accorded the applicant and any meni .,ublic that may be entitled to participate in any proceeding. si judicial capacities, f the Project, Developer (c) Should the City/CRA, in e~er~i~~~' deny any Development Approval necess~':for" ....... may . ", i~I;'. +.t~..j..\ 1~-\ (d) The City/CRA is n.9t lia;~. "0 D~~~ioper agreement should the City/CRAf ",l;:xer~ising~~lr polic any Development Approval n" for the Oi~ exercise of the olice/ uasi..... lower is non. law.-;- ARTICLE IV EF1FEC:rIi\lENESS AN[).,'TBRMINA TION OBUGA TIONS: EV'E!f;!I;~~FR DEFA{JL TS: BREACH: REMEDIES ss and Termination ,- -. -', ~s;i~~eeIIlent Sl}~1 . ffective as of the Effective Date and shall terminate on the Date of Subs < (as defined in Article I) of the Project, unless sooner terminated pursuant to the Agreement, and subject to all provisions of this Agreement which specifically survive .... ..... c termination of the Agreement. From and after the Effective Date, Developer shall be the designated "Master Developer" for the MLK Corridor and shall construct, or cause to be constructed, the Project in substantially the form depicted and described on Exhibit "A," as amended from time to time pursuant to Article III of this Agreement~ and in accordance with the Conceptual Master Development Schedule set forth on Exhibit "B-;-~~" and all superceding Master Development Schedules. Section 1.2 Parties' Termination Rights During the Land /\equisition Phase WPB:273992:2 RGSZ 434677 2 1/4107 13 (a) (b) Seetion 1.3 Parties' Obligations During Pre Approval Period or agents relating to the @~~eal, geotee~t~~h ._~~ronmental, chemieal, geologieal, hydrological, archaeological,bist~eal or biologie-.l~~~ameteristics of the Projeot Site. I( e).oeveloper shall u~~<~ll reasonable efforts to cause the Conoept Plans to be prepared and submitt~~~o the CRJ\,. il'l . aecordance 'Nith the Interim Milestone Dates set forth in the . . " " Section 4.24, Termination Ri hts. Developer shall have the right, upon written notice to the fty and the CRA, to terminate this Agreement and all other Project Documents to which it is a party if: (a) The CRA's or City's authority to enter into and carry out the provision of this Agreement is invalidated pursuant to a final decree of a Court of competent jurisdiction, but then Developer may only terminate the agreement as to the Party without authority; WPB:273992:2 RGSZ 434677 2 1/4/07 14 (b) The City or CRA is otherwise in default under any provision of this Agreement or other agreements entered between the Parties, which are not cured after thirty (30) days advance written notice unless same cannot be cured within such thirty (30) day period in which event City or CRA shall have up to one hundred fifty (ISO) days to cure such default so long as City or CRA is diligently pursuing the cure thereof but then Developer may only terminate the agreement as to the Party in default. In the event of a default by City or CRA, Developer shall have such rights or causes of action that may exist under cQmmon law, Florida statutes, or those equivalent to those remedies of the City or CRA pur$~~ ~Qf~~ections 4.5- 4.13 of this Agreement, as appropriate, in the event of a default by Develop', (e) Development (c) If, according to Developer, aA ,S.s Conceptual Master Projeet Site Plan have ca . proceed with the Project or a Phase thereof, as pr ( d) If Developer is unable to Approvals required for the Proiect. Section 4.JS City/CRA Termination Rights;\'ftle,Qity and/or CRA shall have the right, upon written notice to the Developer, to. terminate this Agr~ement and all other Project Documents to which it is a party: (a) If the Developer' Agreement is invalidated pur .' hl~Q,~;@:l.d carry out the provisions of this . ::~,""~':,~>>' ,;fl~~i~ourt of competent jurisdiction; (b) If the Develop .;'~ise in default under any provisions of this Agreement or other agreem~Il;~~~~t~red betwee.:!.~,P~ies which are not cured after thirty (30) days advance written notic~utl~e~~/s!-Wl~ cannotHeePr~4within such thirty (30) day period in which event Devel~g~r shall hav~.' . one hundr~~"fifty (150) days to cure such default so long as Develweris diligently e cure thereof; or (d) .... Each of the following events shall be an "Event of Default" hereunder: (a) If the Substantial Completion of uny Project Phase (or, if the Project is not phased, then the Projeet)the Proiect or any Phase thereof is not completed by the date one vear after the ~specified in the Conceptual Master Development Schedule, Exhibit "B" of this .^..greement, WPB:273992:2 RGSZ 434677 2 1/4/07 IS as re'/ised pursuant to this "^~greement,DATE TO BE DETERMINED as such date may be extended by Unavoidable Delays. Holdouts or as a result of acts or omissions of the CRA, or of the District or the City purS\:loot to the provisions of the Interlocal "^1greement, such failure shall be deemed to be an Event of Default if such failure continues for a period of ninety (90) days after delivery by the CRA to Developer of a Default Notice (as defined below) and Developer shall fail to diligently and continuously prosecute to completion the remedy of such Default; provided that during such cure period, Developer shall r ort to the CRA and its designated representatives on a regular basis (but in no event less. an monthly), and upon request provide such information and document~~ion t and/or such designated representatives, regarding the status of completiQnQf cons .d Developer's efforts to cure such Default; or (b) If Developer (c) If Developer fails to observe () spect any other term, covenant or condition of this Agreement0 art to be b erved or performed and Developer shall fail to remedy such De days after notice is given by the CRA (any such notice of Default giv Agreement being referred to herein as a "Default Notice") with resp 0 sU~~;.})efaulf,.eveloper shall fail to diligently and continuously prosecute to c~.~p;tetion the r~~7dy of sl..\ch Default; provided that during such cure period, Developer shall rep;~F,to the CRA.i~~itsd~signated representatives on a regular basis (but in no event less fre'l~~i:1tly than monthly), and upon request provide such information and documentation to theCRA:,ilillld/or such designated representatives, regarding the status of completion of construction atidi.]Jt;:yeloper's efforts to cure such Default; any 6tiliJ'. ',pl~r's Affiliates involved in the Project (if as a result ance or ao 't~"perform any of Developer's obligations under this ly affected)ildmits, in writing, that it is generally unable to pay . (e~)f Developer or any;'ot'Developer's Affiliates involved in the Project (if as a result there()f.[)ev~loper's perform'lll8~ior ability to perform any of Developer's obligations under this Agreement is materially adverSely affected) makes an assignment for the benefit of creditors; or :',',,:',;", '., .'::'..' (f) If Dev~l~t>~r~r"ahy of Developer's Affiliates involved in the Project (if as a result thereof Developer'sp~~tmance or ability to perform any of Developer's obligations under this Agreement is materially adversely affected) files a voluntary petition under Title 11 of the United States Code, or if Developer, or any of Developer's Affiliates involved in the Project files a petition or an answer seeking, consenting to or acquiescing in, any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future Federal bankruptcy code or any other present or future applicable Federal, state or other bankruptcy or insolvency statute or law, or seeks, consents to, acquiesces in or suffers the appointment of any trustee, receiver, custodian assignee, sequestrator, liquidator or WPB:273992:2 RGSZ 434677 2 1/4/07 16 other similar official of Developer, or any of Developer's Affiliates involved in the Project, of all or any substantial part of its properties or of all or any part of Developer's interest in the Project, and the foregoing are not stayed or dismissed within ninety (90) days after such filing or other action; or (g) If, within ninety (90) days after the commencement of a proceeding against Developer or any of Developer's Affiliates involved in.the Project (if as a result thereof Developer's performance or ability to perform any ofi~ e "~;'I1:S obligations under this Agreement is materially adversely affected) ~eeking,r anization, arrangement, composition readjustment, liquidation, dissolutiof1.,~tsimil/ der the present or any future Federal bankruptcy code or any other pr 'tor future:, '",federal, state or other bankruptcy or insolvency statute or law, such . i,b~'not if, within ninety (90) days after the appointment without tli"'!f acquiesc per or any of Developer's Affiliates involved in the Project, tee, receiver, an, assignee, sequestrator, liquidator or other similar official ofe.!/,. any of Developer's Affiliates involved in the Project, of all or any substantial part of . s, or of all or any part of Developer's Interest in the Project, such appoin~~t:nt has not or stayed on appeal or otherwise, or if, within ninety (90) days aftertlleex.pir~tion of an tay, such appointment has not been vacated. (h) ..... (i) ...... Section 4.~-+ Enforcement of Performano~t,iDamages; and Termination. (a) If an Event of rs, the City and/or CRA may elect to do any or all of the following: (Q erform])s~rvance by Developer of the applicable provisions of this Agr~' r from ", er Actual Damages (as defined below), plus interest thereon a !O%) pere~tper annum; (iii) enforce any of the Completion Gu .~s; (iv) temii . greemenfi'in accordance with Section 4;f _ below; and (v) ect to a Default an m Developer's failure to satisfy its payment obligations under eement, recover sai ent. The City and/or CRA's election of a remedy hereunder wi>" .J~ctto an Event of It shall not limit or otherwise affect the City and/or CRA' s right4q:h~l~~hany of the '.k remedies available to the City and/or CRA hereunder. Notwiths ..".:~ything L, "foregoing to the contrary, if the City and/or CRA is enforcing any Compte ',." '"" nt,~~?:t1le City and/or CRA may not elect to pursue its other remedies based on a Default . jfrom such failure to achieve Substantial Completion. (b) "Actual Damages" means an amount equal to the sum of (i) any and all amounts paid by the City and/or CRA to cure any Default; but shall not include the cost of development and construction and (ii) reasonable costs, fees and expenses incurred by the City and/or CRA, whether through direct personnel cost or through engaging third-party consultants, to pursue the rights and remedies of the City and/or CRA, as a result of or in connection with an Event of Default. WPB:273992:2 RGSZ 434677 2 1/4/07 17 Section 4.Q& Termination of Agreement Upon Default. If an Event of Default occurs, the City and/or CRA shall have the right to give Developer notice stating that this Agreement shall terminate on the date specified in such notice and this Agreement and all rights of Developer under this Agreement shall expire and terminate as of the date specified in the notice. Section 4.19 Strict Performance. No failure by the City and/or CRA to insist upon strict performance of any covenant, agreement, term or; ,?ondition of this Agreement or to exercise any right or remedy available to such party by . '~veloper's Default or an Event of Default, and no payment or acceptance of fu 1 od ents of amount due under this Agreement during the continuance (or wi' Ci 's knowledge of the occurrence) of any Default or Event of Default~ any sl,i;ch Default or Event of Default or of such covenant, agreem covenant, agreement, term or condition. No covenant, agree,>.., ment to be performed or complied with by either party andno8'~~.by either pa be waived, altered or modified except by a written instrument execu ...... other party. No waiver of any Default or Event of Default shall affect or alter this Agreeh1\lt each and every covenant, agreement, term and condition of this Agre~m~~t shall contI,) . . '.)ll force and effect with respect to any other then existing or sub~~'~f~]l)~fa,~lt. Payme .... .. ....Developer to the City and/or CRA of any amounts due under th~~'~greettrepis.s~~ll be without prejudice to, and shall not fGonstitute a waiver of, any rights ofDeveloperag~i~~tth~ City and/or CRA provided for under this Agreement or at law or in equity.Developer'scoti,tp'liance with any request or demand made by the City and/or CRA shall not he deemed a waiverof.Developer's right to contest the validity of such request or demand. Section 4.~W Rig~~t?~p.ioin Defaults. lIt the ~vent of Developer's Default or Event of Default, the City and/or C~s,~~llbe entitled to seek to enjoin the Default or Event of Default and shall have the right to inyo1<:e.apy rights and remedies allowed at law or in equity or by statute or 'es Undef;:r~; tc and lnsolvenc Codes. If an order for relief ding or other act becomes effective against Developer or in any g which is com "y or against Developer, under the present or any future federal t~y code or in a Prdq~f<y g which is commenced by or against Developer, seeking a reo. <<'" .~ion, arrangement, c~~osition, readjustment, liquidation, dissolution or similar relief undet'~y!:9~~r present or . '." .. ~ applicable federal, state or other bankruptcy or insolvency statute orl~~,~~e~RA sh~\l~ . entitled to invoke any and all rights and remedies available to it under such b~ptcy.~:m,itl$~l ency code, statute or law or this Agreement. J-;;,,';< .;....:t':::...:;\' ::',:-. ..,.'.....:..':, Section 4.1~Ri~f to Perform Developer's Obligations. If a Default shall occur and be continuing beyond any applicable notice and cure period, the City and/or CRA may, but shall be under no obligation to, perform the obligations of Developer, the breach of which gave rise to such Default, without waiving or releasing Developer from any of its obligations contained herein, provided that the City and/or CRA shall exercise such right only in the event of a bona fide emergency or after five (5) business days' notice, and Developer hereby grants the City and/or CRA access to the Project Site in order to perform any such obligation. Any amount paid by the City and/or CRA in performing Developer's obligations as provided in this Section-, WPB:273992:2 RGSZ 434677 2 1/4/07 18 including all costs and expenses incurred by the City and/or CRA in connection therewith, shall be reimbursed to the City and/or CRA within thirty (30) days following the City and/or CRA's demand therefor, together with a late charge on amounts actually paid by the City and/or CRA, calculated at the Late Charge Rate from the date of notice of any such payment by the City and/or CRA to the date on which payment of such amounts is received by the City and/or CRA. Section 4.l1J Reimbursement for Amounts Paid Pl.lf.suant to this Article. Any amount paid by the City and/or CRA in performing Developer's OI1I '. provided in this Article, including all costs and expenses incurred by the City and/or onnection therewith, shall be reimbursed to the City and/or CRA within thirty (30) da,/! ~ the City and/or CRA's demand therefor, together with a late charge on anl9unts p~id~' . ' d/or C~ calculated at the rate of ten (lO%) percent per annum from,th~.d~~~;i~f such ";>/(pty and/or CRA to the date on which payment of such amounts.isre~~ived by the .1~< ;; Section 4.12.4 Waiver Release and Assum trott' payment or performance pursuant to the provisions of this constitute the City and/or CRA's assumption ofD~yeloper's 011 Developer's past, present or future obligati9~~'; '. 'der tions. The City and/or CRA's 1 not be, nor be deemed to payor perform any of !,:".;.(""", ,', ... . ~';~T" ICLE' . '1 .'if:. ~,.":t!:( .'.. :- " PROJECT'REPRBSENT A ~S: KEY PERSONNEL: PROJECT ADMINISTRATION Section 5.1 Pro'ect Re reSentatives. (a) Developer 11' signates Samantha Simons (or her successor or alternate for such purpose) as the "Deve'rqject Representative" to represent Developer in all of its dealings \\T'tPi~~Sity and C",lattd the CRA's Project Representative relating to the impleme~~~&~i;..,~fI1ent of this Agreement; provided that it is acknowledged and agreed that D 'erma)r;",in writing (a .copy of which shall be made available to the City and/.o '" .'C.... upon reque ".ir of her responsibilities to another person to be determined by th " '~ioper. The City a ',' shall direct all communication regarding this Agreement to El Project Represert~e. i~in thirty (30)$-Y'&' after execution of this Agreement, the CRA will designate an . '" ccesso,," '~inted for such purpose) as the "CRA's Project Representative" of its dealings with Developer and Developer's Project is Agreement. Developer shall direct all communication regarding lS Project Representative. individij' to represert Representative,. this Agreement to t (c) Within thirty (30) days after execution of this Agreement, the City will designate an individual (or his successor appointed for such purpose) as the "City's Project Representative" to represent the City in all of its dealings with Developer and Developer's Project Representative relating to this Agreement. Developer shall direct all communication regarding this Agreement to the City's Project Representative. WPB:273992:2 RGSZ 434677 2 ]/4/07 19 Section 5.2 Principal Members. In addition' to the.. designation pfDeveloper's Project Representative, Developer shall assign and direct principal' members of Developer's Affiliates involved in the Project to assist in the development and implementation of the Improvements. Section 5.3 CRA's Right to Use Field Personnel. The CRA reserves the right, at its sole cost and expense, to conduct inspections of the Project Site, to the extent reasonably necessary to perform such inspections. Developer agrees to provide safe,l:iccess to the Project Site, including, without limitation, access to inspect the Improvements. N" . ction by the CRA's field personnel shall impose upon the CRA any responsi}),~lity o' '.. any failure by Developer to observe any Requirements or safety practi~~~.'1-ip- co> ith the construction of Improvements, or constitute an acceptance of:' work< ot ly with the provisions of this Agreement, and no such insp">".~g~ '...' 1 U .. the CRA of any responsibility or liability for the performc;t'o$.... .....eloper's 0 ...; eunder, nor any liability arising from the improper performance ther~~~'J:l1e CRA's fie 'rtlSi.1nnel shall not interfere with the construction of the Improvementsatthe~' tSite and shall comply with all safety Standards and other job-site rules and regulations orD. ;.. Any material interference which is caused by the CRA's field personneL shall extend,:":i ' for completion of the Improvements one day for each day of suc .., ence.:., . 0- interference. The CRA's field personnel such communications with Developer reasonably necessary to enable such onl epr event shall the field personnel give'directions to e field personnel shall make only or any other Person as are uct its investigations, and in no ons. ~.~~b':\hl~ij ." , ':~<"~(" ',';' ,';~<: ,'<. X,.,_ _', ,',:.:,;'.:._...- Section 5.4 Access and"Iti~view of Devel~et'~!Bboks and Records. Developer shall at all times keep and mainta.i~[~~~prate and complete records pertaining to acquisition of the Parcels and including such D:1" ~.r~quired to demonstrate Developer's compliance with its obligations W19~~~N~ Agreeme '.?~i~~d that such records shall not include proprietary and financiali~~6~~~H". ~ing to ttieIl1l~;~~~~9n of profits and losses among the Developer's Affili ' . . Q'f :infbl'Ii!~ '~oncemingl~~ing incentives offered or provided to prospective ten sub-tenants.' '" ~ CRA arid/or their representatives shall have, during normal bhours and upon r e advance notice, access to inspect, review and photocopy any uch books and recor.. eveloper relating to the Project as described above. The City shall sign a log book'~ eveloper whenever records are inspected. ARTICLE VI RELOCA TION ASSISTANCE PROCEDURE pSUBJECT TO FURTHER NEGOTIA TIONSl Section 6.1. Compliance With Relocation Assistance Policy. Developer shall, in purchasing the Third-Party Parcels under this Article VI, comply with the Relocation Assistance Policy attached hereto as Exhibit "G", including the payment of all costs due hereunder. The following are entitled to relocation assistance: (a) Residents who have homesteads in the MLK Corridor within the designated site WPB:273992:2 RGSZ 434677 2 1/4/07 20 plan ttreawithin the Proiect Site; (b) Businesses - the CRA, in accordance with its Business Genesis Program shall provide assistance to all small businesses in the site area, as consistent with this program; (c) Churches located within the designated site plan area shall be relocated In accordance with agreements with the Developer;Develooers. (d) Developer shall pay reasonable moving exp~, accordance with Federal Relocation Guidelines; a~~.;J . (e) Developer shall use best efforts t" ' to another home in the Heart of Boynton neighl:>" "", mortgage or no mortgage, in an effort to maintaHi, '. responsible for any increase in taxes, insurance/or Developer. homeowner residents In in a home a similar shall not be control of the ARTICLENII ACQUISITION OF THIRD-PARTY PROPERTIES AND CITY /CRA SALESll?RANSAe'mON Section 7.1. ,i:,:it:tl'.,~(;~;{,:,,:\,'):/~):-:- :' (a) During the~~ quisition Phasg!~'~6mmencing on the Effective Date, the Developer, CRA and the . t l;c;ooperate in the acquisition of all Third-Party Properties within the f> until t ,er determines that a sufficient number of the Parcels within t~~!h. "x~been a v "k.ythe Parties to proceed with the Project or a Phase thereofJtf;.ae ,'m~/ConceptllalM'aster Project Plan. ? (b) (QLIf the Developer has not notified the City and CRA in writing that a sufficient nurnber'()fParcels have been aqq\J.ired by the Parties to proceed with any portion of the Project by '"i ' DATE.,'q'O BE DETERMINED. the Parties shall meet and jointly determine'w-~F~~r (a) theijAcquisition Phase shall be extended, b) the agreement should be terminated ini:,~~ rticle _ of this Agreement, or c) (~e) With ER OF DAYS TO BE DETERMINED Upon of notifiying the City and CRA in writiffg'that a sufficient number of Parcels have been acquired to proceed with the Project or a Phase thereof, Developer shall provide the City and CRA with a) the Master Site Plan, b) the updated Master Development Schedule c) the list of required Infrastructure Improvments and c) the Infrastructure Improvements Budget for the Project or Phase of the Project with which the Developer proposes to proceed. (gd) Upon notifying the City and CRA that a sufficient number of parcels have been WPB:273992:2 RGSZ 434677 2 1/4/07 21 acquired to proceed with the Project or a Phase thereof (hereinafter referred to as "Project/Phase Commencement"), Developer shall commence the Project or a Phase thereof in accordance with the terms, conditions and deadlines set forth in Articles _ of this Agreement. (~e) Subsequent to first Phase Commencement - if the Project is to be constructed in Phases - Developer, City and CRA shall proceed to acquire Third Party Properties pursuant to the provisions of Section 7.2 of this Agreement until such, time as. Developer notifies the City and CRA, pursuant to the provisions of this Section 7.1, th~~' , t number of parcels have been acquired to commence additional Phases ofthe<I'rojee~').. nal Phases of the Project shall proceed in accordance with this Provision 7 .l~). e exerCIse pment and Land Section 7.2 Cooperation by the City, ORA and Develo-per.for Acquisition of Third- Party Properties During the Land AcquisitigpPhase.",... '(,iCl~/ Jit;j~)i!' ",' (a) Commencing onii:'t}1~ Eff~~t~.ve loper will proceed with the acquisition of Third Party Properties wit'~the ~~Ject Sit ...... the Land Ac uisition Phase the Proiect Representative, C~'\~~epresenta~~e and~~ty Representative shall meet on a biweekly basis to discuss the statU$i~iitd strategyofacquirpg Third-Party Parcels. (b) When Developerdetermines that it requires the cooperation of the CRA and the City ("CitY/c;gA")in order toacq\lir~()ne or more Parcels, Developer shall make a specific request .fo.'.r l;\i....d.....toC......i....ty..... /ORA..:......' detailingw.:i. h,a. t.s.t.aff and/or financial resources are being requested, and sh~l,ptovidetli.e<:;i~/qRA with all relevant information in its possession regarding the sub' . "cel(s) inchf he address of the parcel(s), (2) a copy of the independent a of the Parcel(s), 1copies of written offers and counteroffers made with regard to To the extent tA~City/CRA is authorized and to the extent that funds are available (if required),tlpEffl:-within. NlJ'MBER OF DAYS TO BE DETERMINED of receiving both Developer's '.1J~.'. . '.R.:.i~.nition and all relevant information regarding the specific Parcel, the City/CRA Sll<.> e'tts written notice of consent to tts-cooperat~tefl in acquiring the subject Parcel(s)~ ~anijsuch notice shall detail those proyiding the staff and/or financial resources requested by the Developer that it shall commit to the effort.~ (d) Any Parcels acquired by the City/CRA with City/CRA funds pursuant to the terms of this Section 7.2 shall constitute "Additional City Properties" and/or "Additional CRA Properties" and shall be transferred to the Developer in accordance with Section_ of this Agreement subject to all conditions thereto and otherwise contained in this Agreement so long as this Agreement continues in effect. The City/CRA shall seek to have all contracts for their WPB:273992:2 RGSZ 434677 2 1/4/07 22 purchase of Third-Party Parcels be assignable without the consent of the Seller so the same may eb assigned to the Developer. (e) The City/CRA will not be required to purchase any Parcel for more than _% 115% of its appraised value. to sell to (a) Purchase Price. Th~purchase priCE:("Purch,~~~ Price") for the City Properties and C,""____',,:,,;: \_:_'_: ,.f':> the CRA Properties shall be as D"'OWS::i">s'( (I) Develo 11 pay the Ci~il:R!~i$l ,981,153 for the City Properties; (2) Developer he CRA up to"$1;561,3 '19.L.3..:z.8~8J for the CRA Properties. (3) Deve ay the City up to $ per square foot for any and all City Properties. eloper s "~e CRA up to $ per square foot_for any dditiori " RA Properties. . (b) Closing Datef:,;,;~e closing on the City Properties, Additional City Properties, C~~roperties, and AdditidP.,~l,pRA Properties shall occur within XX days after the Project Co~~'?ment or the First Phase Commencement. The Closing on the City Properties, Adcflti~n~IS!ty Properties, C~ Properties and Additional CRA Properties is contingent on (1) Developelj;p .. g the . and CRA with the Master Site Plan, Master Development Schedule,n e Improvements and Infrastructure Improvements Budget in accordance with f this Agreement and (2) Developer providing the City and CRA with evidence of i. . ction financing for the Project or that Phase of the project. The Closing Date for Ad Itlonal City Properties and Additional CRA Properties acquired for subsequent Phases of the Project by the City and/or CRA after the first Phase Commencement shall occur within XX days after Phase Commencement for each subsequent Phase and is contingent upon (1) Developer providing the City and CRA with the Master Site Plan, Master Development Schedule, List of Infrastructure Improvements and Infrastructure Improvements Budget for that Phase in accordance with Section 7.1 of this agreement and (2) Developer providing the City and CRA with evidence of its construction financing for that Phase of the WPB:273992:2 RGSZ 434677 2 1/4/07 23 project. (c) CRA/City Deliveries. The CRA and the City shall provide to Developer, for inspection and review, copies of all surveys, tests, studies and reports which the CRA and the City have with respect to the City Properties, Additional City Properties, CRA Properties, and the Additional CRA Properties. Any reliance upon such items provided by the CRA and City is at the sole risk of Developer, and the City and the CRA m,ake no representations or warranties with respect thereto. (d) Condition of Title. The City shall fee simple, good and marketable title to the City Properties and Add' d cle r of all liens, encumbrances, easements and restrictions, en except for easements and restrictions which do not adv r intended development of the City Properties for the purpose . . ect (the "Pe xceptions"). The CRA shall convey to Developer fee simple, goodple title to the CRA Properties and Additional CRA Properties, free and clear of all 1 .... brances, easements and restrictions, encroachments and survey exceptions, except fories.... ts and restrictions which do not adversely affect the Developer's use.()T' g.~d developm~n.. the CRA Properties for the purposes of the Project (the "Permitt~;~i,~xn:$'n..From and after the Effective Date, to the extent that any of the City Prope~~~ Add' ..... . Properties, CRA Properties and Additional CRA Properties are the sUQJ~~t of a. (or the CRA shall not amend, extend, renew or otherwise modify any le1ise (ei,'tiby dir~~~taq~fon or inaction as any lease may provide) without the express wri, onsent of; loperC'f4bt less than (thirty) 30 days prior to City/CRA Closing, the City ami.' shalF' ,~!to Developer a commitment for title insurance (subject only to t~,~.,) itted Excep 1,,< .....'e amount of the applicable Purchase Price, covering the City ~J?~tti~~~ Additional City Properties and the CRA Properties and Additional CRA Properties, respecH~~ly, along with copies of all easements and restrictions. (~)]~t!.~:.~tlcts.J)evelope:r~~~n,~~(ise the City and the CRA of any title matters revealeg.;r.~i'l'>y;'tne1'.~ ' itmento~\.$~eys which it may obtain, which constitute objl;( le title defi are not Permitted Exceptions. The applicable Seller shall make re, e efforts to cur ch defect and shall satisfy any monetary liens. If legally the City or the C institute eminent domain proceedings to eliminate such title ';;'W.the event that .,' d CRA are unable to deliver title in accordance with this Sectt ..:.e~~lpper may acce . . eh title as the City or the CRA can provide, without abatement of the PUrch~~~~pe. If th~l~i"mation of the property makes the Project infeasible, Developer, the City andth~;;~s ',ilipooperate to revise the Project to accommodate such problem, in accordance with: . ':"ent. (f) Inspections. Developer may, within 60 days (the "Inspection Period") perform, at Developer's sole cost and expense, such investigations and inspections of the City Properties, Additional City Properties ,CRA Properties and Additional CRA Properties, the physical condition thereof, survey and environmental condition and all other matters with respect to the said properties (collectively, the "Inspections") as it deems advisable. City or CRA, respectively, shall be advised three (3) business days prior to such Inspections. If a phase one environmental audit as to any property reflects a recommendation for further environmental audits (a "phase WPB:273992:2 RGSZ 434677 2 1/4/07 24 two report"), the City and the CRA acknowledge that Developer shall be authorized, at its sole cost and expense, to obtain same. If the phase two report and Inspections reveal the existence of any Hazardous Substances, then Developer shall request that its environmental consultants recommend any remediation that might be required by any governmental authority as a result of such condition. The consultant shall also provide a good faith estimate, to the extent possible, of the anticipated cost of such remediation. The seller of the affected property may retain its own consultant to review the conclusions of Developer's co ultant. ~ The applicable Seller shall proceed with remediation of the environmental conta d pay for any required remediation costs. If the applicable Seller fails to r~medi .. ronmental contamination, Developer may either (i) refuse to close on the s4pj~pt prope . play close on the subject property and remediate the environmental contamination. rties shall be in compliance with 1 have committed to issue the s of this Agreement. (g) Indemnity. Developer shall indemni'@,C:i~>' against any and all costs, losses, claims, damages,lif!~' (including reasonable attorneys' fees and court cost~~);. the Inspections. Developer shall evidence to the City~~nd with respect to said Inspections. (h) Title. Title to the City the requirements of this Agreement, a Title Policy insuring Developer's title itil (i) Seller's Closing DoctiUnents. The City and.ithe CRA shall deliver the following documents at the City/CRA Clo~~ng: s to the Parcels. .. . (~)AJtl~ Affidavits.. (4) Other dO~t1ments necessarv and aODfooriate. reasonablv reauired bv D~X~l~D~. Documents and Deliverables. The Developer shall deliver the and the CRA, respectively at the City/CRA Closing: (2) Other documents necessarv and aODfoDfiate. reasonablv reauired bv Seller. (k) Prorations. Seller shall pay all real estate taxes payable with respect to any year prior to the year of the City/CRA Closing. The following items shall be prorated and adjusted between the City and Developer and between the CRA and Developer as of midnight of the day preceding the City/CRA Closing, except as otherwise specified: Real estate taxes, any items of income and WPB:273992:2 RGSZ 434677 2 1/4/07 25 expense, payable for or in connection with the use or occupancy of the properties, gas, water, electricity, heat, fuel, sewer and other utilities and other operating expenses relating to the properties. (I) City/CRA Closing Costs. City and CRA shall pay for the following items at the time of the City/CRA Closing: (I) Purchase Price. (1) Citv and CRA own leQal cost~. (m) Developer Closing Costs. The Dev time of the City/CRA Closing: (2) Title Insurance Premiums. (n) Additional Conditions to Closing; '-',:-;',,"''',-::',. ,i' .'..... ':.....,.....;., ,,>;?~,;;~'?'~~,.. ,; :.'~s~:}'>' ".'j'~0' (1) The City and CRA's'ob1igatio11;;Jo clos< y/CRA Sales Transaction shall be conditioned on Developer no eipg in Defa, 'ereunderbeyond any applicable cure period, and Developer having compli '. : perform" ',)ions contemplated hereunder with respect to the City/CRA ClosiIl (2) Developerts'1",. tion to close the City/CRA Sales Transaction shall be conditioned~,~tpey~loper' s optf ~e City and the CRA not being in Default hereunder beyond tulY"'apt>Ji,<, ') e period" .,,~,.~~ch of the City and the CRA having complied and prefoflIleddts.obliga '1:1 ' emplatedlietellllder with respect to the City/CRA Closing. .,',?;:,.~i~;'i~',~~~;'; ,.. ," .... ",~"~ ',_Y:"::,-~; , .. ..., , "J 0) Possession. al City Properties, bject to parties in p ,r shall be granted full possession of the City Properties, ~roperties and the Additional CRA Properties at the City/CRA !!lion under existing leases. t"'J\.s~i ent. Developer may assign its rights to acquire the City Properties, Additional CitY, ~~rt,i?~,~~:R.A Properties and the Additional CRA Properties to an Affiliate of Developer upon . ~elo':ahd with the prior written consent of the City and CRA and provided that Developer's assignee shall be obligated to close under this Article in the same manner as Developer. (q) Deeds to Rights-Of-Way. To the extent that any of the City Properties, Additional City Properties, CRA Propertiesor the Additional CRA Properties constitute (or will constitute following construction) a public street or other right-of-way (or part thereof), Developer shall execute and deliver deed(s) to said parcels to the City or the CRA following the Completion of Construction of the Infrastructure Improvements thereon. WPB:273992:2 RGSZ 434677 2 1/4/07 26 ARTICLE VIII DEVELOPER COMMITMENTS [SUBJECT TO FURTHER NEGTOTIA TIONS] Section 8.1 Contributions by the Developer: (a) Public Safety Building; i,:-:'.," ....'....... (b) Li!:!hted pedestrian walkways and~9iiri~ct!~J:!~'@oug 't' " y>,<.:~.:~j;,,>,c, (d) Fitness Center with free or reduced membership' ..... and governmental workers who participate in.~e{~CUl:ltnunity menta olice, fire department ogram; (e) Showcase public art in addition Jopq~k:~tp~rks, fountains, water features, environmentally friendly design, shaded courtyards, l~shlandscaping, open plaza areas, pedestrian friendly side streets, on-street,struct~d and sUrfao~ parking; public amenities such as pools, tennis courts and basketball courts, seatlftg areas and gathering places; (f) Gateways at b ds of the co.~itYi:ione at Seacrest Blvd. main entrance and one at Federal Highwayesign of the eastern gateway along Federal Highway shall be emphasized by a retail co', ,,:~~~ opens up onto a community plaza. The design could easily embraqethe addition of . ~tia.lSFEC light rail stop in the future to coordinate with the .,' -'. rail-line"':' " rate trolley. stops for connection to the downtown core which for residents and visitors; and ii€~) Site sha '., wiUbe'a transportation conri (h) Incorporation of,ur'ban smart growth and sustainable design features. U) $300-( mmunity Trust Fund to be established - - Developer to use best efforts to provide pro .' ams including, but not limited to, job training, healthcare, youth programs, homeownership programs, and ongoing community outreach programs as suggested by the community. (k) Developer shall establish a college scholarship program that will provide $25,000 a year to a student within the Heart of Boynton community; and WPB:273992:2 RGSZ 434677 2 1/4/07 27 (1) Developer shall donate $150.000 for revitalization of Sarah Sims Park Section 8.3 Contribution for Affordable and Workforce Housing Programs [SUBJECT TO FURTHER NEGOTIA TIONSl (a) Residential Workforce Housing Buy-down Program - $30,000 for each family who qualifies for Workforce Housing as defined herein. oavable at closinl! and based on oroiect f~asib.iLit~; ~";' Section 8.5 Contribud~'by CRA ii';,::<;::'" i~:/:):6:"j,:: '''',''-''1 I!(' (b) Seacrest Village will include -l4---8~% of "W~~ ,;Jlousing" in each phase; and (c) Workforce housing will blend program. (a) (a) To the exte~f'~~~, ds are the CRA commits to contribute no more than $ toward~(r:the plementation of the Project including the cost of land acquisition, infrastructure improvements, and financial assistance for demolition and removal of existing ~truG~~s. < . @J) In additio~j.toproviding cooperation in the purchase of Third Party Properties Elti'to Section 7.2, their. . ommits to provide .... . " "':,f;:i(Q :Financial assistanc,~~;f~~ demolition and removal of existing structures not to exceed ';';E~BELOW TO BB;NEGOTIA TED FURTHER] (2)'" Rel~~'~ti6ri of Deliverance by Faith Church????????; (3) Relocation of Delray Boynton Academy Charter School ???????? ~ ~mand (4) Commitments to rent space~ in oublic safetv buildinl! if develooer QIQyide_s..._Q.QmmituleIiliL_1Q__YQuth_JLtmrranLmiuJLJhaL_will be soecified and jdentiHe..d ~ Communi1Y_PIogI~ml!ling whiSh _ willb~ identified tht:oug,hJ::1IJ2~n__Stratel!ieLProl!ramrpin,g outline which will be determined. - ?????? WPB:273992:2 RGSZ 434677 2 1/4107 28 (6) (f) (5) Tax Increment Financing. Upon the completion of the Project, or any Phase thereof, and the placing of the improvements constructed pursuant to this Agreemenet on the tax rolls, the Developer shall be entitled to receive _% of the Tax Increment Funds generated by the placing of the improvements constructed qfsuantJo this Agreement on the tax rolls for a period of _ years provided Developer is not, ' to any provision of this Agreement and provided that Developer has met all of its 0 vided herein. (6) Infrastructure Improvements. : commits to contribute no more luding the cost of land for demonlistion and Section 8.6 Commitments by City (a) To the extent that funds are available~ the, than $ towards the implementation of the acquisition, 2) infrastructure improvements, ap,4;}) financia removal of existing structures. < ',.;i. ',-, ........ ," :><'... ;-" ,'.,<..~.;'.' "c.. '; ,-,.'..-/., ,} ;'~i.,,;-_j;'>'''~ ',:,"'/t,'; .r..- ... .., (b) In addition to providingc99peratiolt'iintllepurchase of Third Party Properties pursuant to Section 7.2, the City commits.toprovide (I) Financial assisW-nce for demolition andr~moval of existing structures not to exceed $ capital (2) public nuisaiid~ abatement building permit fees, and connection charges and water and sewer facilities. ARTICLE IX FINANCING SectiQIL9.1 Developer Financing. ....,,,, (a) Up~' ,', . .base Commencement and prior to the City/CRA Closing Date, Developer shall ',' shall demonstrate to the CRA and City that, it has secured a commitment to finance" evelopment of the Project by providing copies of its loan commitments to the City and CRA and by evidencing its construction financing WPB:273992:2 RGSZ 434677 2 [/4/07 29 ARTICLE X PROJECT CONSTRUCTION, OPERATION AND MANAGEMENT REQYIREMENTS [DETAILS SUBJECT TO FURTH~~~J::~~!~TIONSl i,".'(' .',,' ,c', .' ' ,-~;~": 2'~', i;>":'. Section I O.l Construction Obligations. (a) Developer shall design and constru: Project pursuant to the terms of this Agreement. Unavoidable Delays, to commence construction 0 """ following Project or Phase Commencement pursuantfo (b) Construction and development of the Project ~nced and substantially completed in accordance with ",tJle Master Site Plan and Master Development Schedule mutually~dreason~bly acceptable to Developer and CRA, which shall be agreed upon by the Partiespnor to c()mm 1J?;~?t of constru~tion of the Project or Project Component, subiect to Section'?;!. Following " scheduleProiect or Phase Commencemel'lt~ subj~ctto Un i15le Delay and without limiting the provisions of subparagraph (~;,',ove:'DeveI9Btr will: 1 times subsequent to the Effective Date: (i) ensure that sufficient mwer and mate~al~~~"" ployed throughout the development and construction of the Project otherwise proc~~d,,~~ligently and continuously towards the completion of the develop construction of the Project, (iii) not abandon or otherwise terminate the developmenta,"t:, >;ction of the Project, and (iv) substantially complete the Project or Pr9ject C9111Ponent by '., '. te agreed to by the parties in the applicable development scheduleMastel'I>ev~16~ment Schedule; '.- ';<,-,L.,' ~.,' ..... ;,::..., ......-,,:~~~r;>,::'../~";<-'it:;;~' (c) The approved,',"aIConceptualMaster Development Schedule is attached hereto as E~,i~it"B." The subsequ~' ,', 'ter Development Schedule(s) submitted to the City and CRA p'urSWm~to Section 7.1 shall 'in Interim Milestone Dates as set forth in Section 2.3 of this ell;t. Failure to satis Interim Milestone Dates, as amended from time to time ~i~ection 2.3, sha< deemed a breach by Developer of its obligations and shall t under t . :J~eement if such failure is not caused by Unavoidable Delay and 1eveloper pursuant to Section _ of this Agreement. " " (i) the completion of all Improvements therein (ineluding, \-vithout limitation, leasehold improvements to the extent provided herein) in substantial accordance with the applicable Plans and 8pecifieations therefor and all applicable Requirements, as evidenced by the issuance of a Final Certificate of Occupanoy or Completion, together with a certification by the Architeot and Developer's Project Representative that such WPB:273992:2 RGSZ 434677.2 1/4/07 30 Improvements have been substantially completed in accordance \-vith such Plans and Speoifications and all applioable Requirements; (ii) substantial completion of all related Infrastructure Improvements necessary for the operation of the Projeet or Projeet Component; (a) Developer shall construct the ir~4~;(j,C:,;-'f!:i:-?~i:-j'~,~,j":~;~~ ''__''' _ In accordance with the Master Site Plan~~' and'Jit,r ,,~."... ......ent Approvals and all other Requirements, including, without limitatioIl, the ADA. Deve opei shall be responsible for timely payment of all applicable permittj};lrg, licensing, utility connection and similar fees and charges in connection with the design and <?Rpstruction ofthe}->fgject. Section 10.3 Design and Construction Review ProcedureslProvisions Applicable to Construction. "':',,.,:;. ter Project Site Plan and Master Density, Intensity efined iri'i..'~m 2.2 of this Agreement shall be submitted by , eir review and approval. [A NEW SUBMISSION PROCESS TIONS - WITH REGARD TO BOTH CONSTRUCTION TED INFRASTRUCTURE IMPROVEMENTS - AND A 'NI.. . '.1'J],\1ELINE FOR T ...I)\PROCESS NEEDS TO BE DEVELOPED BASED ON DA TE.e:FPROJECT OR PHaSE COMMENCEMENT AS DESCRIBED IN SECTION 7.1 OF'tltl~A(jREEMENl'.] , ' (b) In n()i~Y:<3;i Wthe CRA Representative or the CRA have any liability in connection with the constructioff .peration of the Project as a result of or arising from any approvals relating thereto given () ithheld (or the right to give or withhold such approvals) pursuant to this Agreement, or as a result of or arising from any other right to review documents in connection with the construction or operation of the Project. In no event shall any such review, approval, comment or evaluation by the CRA relieve Developer of any liability or responsibility under this Agreement, it being understood and agreed that the CRA is at all times ultimately relying on Developer's skill, knowledge and professional training and experience in preparing (or causing the preparation of) any project documents. WPB:273992:2 RGSZ 434677 2 1/4/07 31 (c) Developer shall notify the CRA in writing of the names of all architects, engineers, construction contractors, project managers, program managers and other design and construction consultants engaged by Developer in connection with the design and construction of the Project (collectively, the "Project Design and Construction Contractors"). The CRA shall have no right of approval with respect to any such engagement; provided, however, that Developer covenants and agrees that all Project Design and Construction Contr~Ftors shC:ill have experience with the type of project being undertaken and shall be duly license' ,. der the laws of the State of Florida. The CRA shall have no right of approval with y contract entered into by Developer with any Project Design and Construct~2n Contr . ed, however, each such contract shall contain the "Required Contract Provisions" a 'pit "0" hereto. Upon execution of any such contract, Developer s v" . . . te written evidence of its compliance with the preceding se -~>,':\<:::: -,:. ,: ''>';-'--:-::~ upon it in any applieable contract. NothiIl~';~~ 't.'!Q;in~~i~Agreemea~:~hall grant or be deemed to grant any Project Design and Cons~ction C,6htrac~9rprany other Person engaged by Developer with any right of action or cl~~!p agai~$t the:~~,~th respect to any work any of them may do in connection with the Proje~t Notb-ipg contl!t~~cl)herein shall create or be deemed to create any relationship betwee '.~ CRA anq~~ Projy esign and Construction Contractor or any such other Person enga ;'4'Develop' shall not be responsible to any of the foregoing for any pay e or alleged, e thereto for any work pertained or materials purchased in con.,ith the Project. (e) I~,9P~~91~?n with',:QJ7ct, Developer shall require all Project Design and Construction'<i,J~l11'rili9tQ~S '. to compIY~~i'tlf\t~e EEO Program (as defined in Section 10.11), as modifiedp~adj1isted " . . e to time.Th~'provisions of the EEO Program shall be applicable to alh'ect Design an . "ftion Contractors and subcontractors at any tier of construction. Develpper shall furnish to < ',' ~ data, including but not limited to compliance reports, related to the operation of the EEO Program, as reasonably requested by the CRA. <~iI.?~~eloper shall bs,t~sponsible for initiating, maintaining and supervising all security precautions~d'.wograms:r~C:ls'onably required in connection with the performance of the ConstructionWOfK. :,",'.'.', " .<> <; Seotion 10. 4< Pi~eerOversight Prior to Completion. (a) Prior to Completion of the Project (or any or portion thereof), the Developer and the City and the CR.'\. shall cooperate to exchange information relevant to parcel acquisition and the development of the Project (or any or portion thereof), subjeet to compliance ''lith third party confidentiality agreements, and the restrictions placed on the diselosure of material non public information by applicable law and/or the terms of any corporate or similar agreements, by la'lls, formation documents, operating agreements, etc. WPB:273992:2 RGSZ 434677 2 1/4/07 32 (b) During construetion of the Projeet, the Developer shall prepare an updated Conceptual Master Deyelopment Schedule, subject to the provisions of Section of this agreement and no less frequently than the first day of each quarter commencing on the first day of the month immediately follO\,ying commencement of physical 'Nork on the Project. The initial Coneeptual Master De'lelopment Schedule is attached hereto as Exhibit"B." ., Section 1 O.~~ Progress Meetings. The Developer;' meetings everv DATE TO BE DETERMINED ~g"rep6, review the progress under the applicable ':;"" , Develo ment Site Plan and Master Develo may attend each of such meetings. chedule regular progress tus of the Project and to Master oject Representative f'ft;lt> II be held at the Project Site or at a location to be designated/by' veloper. Prior to the Meeting, representatives of the eRA may, in compliance with St eral laws, regulations and ordinances, visit the Project Site accompanied byrepresentativ'e .~veloper to inspect the progress of the work on the Project. The ag .",' ". ..emeeting~h ude, but not be limited to, a status report with regard to Devel ...... '"" submission'and approvals, financial commitments, construction of the ProjectH the Infi'as" Jure Improvements. At the meeting, this information may be reasonably eval'-Ulted by the CRA.t~ct~~ine whether the Developer is materially in compliance with the material terms and cOlldltions of this Agreement and the Conceptual Master Development Schedule. :.Y::..". ~:-.;":"! ;,,: ;,:.', '" :::~ Section 10.6 Progres~~eForts. The Developer snall endeavor in good faith to submit to the CRA a quarterly written progress report (the "Progress Report") (or more frequently information regarding the pr()gi'es~. he Project, if reasonably requested in writing by the CRA) that shall inclu cription oti~ ti~~ completed, the activities to be undertaken prior to the next qU:Qrt, thes,",x.ll,lJ pevelopment Approvals, the status of any Project financ~J:l' ch activt LanY' that is showing delay, a description of problem areas~[:f\~~ent and antit(laying factors and their estimated impact on performance of oth~,:;~ctivities and sChed,!, '. mpletion dates in the Master Development Schedule and an ex::p~AA'lltion of corrective actio or proposed. ~e,(;tion 10.7 Construction and Operation Standards. (a) Developt(r workmanlike manner. construct the Project with due diligence and In a good and (b) Developer shall operate and manage the Project with that degree of skill, care and diligence normally exercised by operators and managers of first-class, mixed-use development projects with a scope, magnitude and location that is comparable to the Project and otherwise in compliance with this Agreement. (c) Concept Plans. Within NUMBER OF DAYS TO BE NEGOTIATED ofProiect or Phase Commencement. Developer shall submit schematic plans, design development plans and WPB:273992:2 RGSZ 434677 2 1/4/07 33 construction pland (the "Plans and Specificatins") which detail REVIEW/APPROV AL TO BE DETERMINED. - LEVEL OF Architecture. The architeotural standards shall be included in the Concept Plan. (d) Design details: 7. * FLOORING 8. * ROOFS 9. *'NINDOWS '^1ND DOORS 10. * PLUMBING II. * MECH'^1NIC^1L 12. * FLOOR PLANS Section 10.8 Legal and Prohibited Uses. . . . . (a) Developer shall use~d"()perate the~~JeptSit~<thrOughout the Term as required by this Agreement. In any event~t~~'Project Site shll.~lbeused only in accordance with the Final CO(s) therefor (or Temporary.<i:O(s), to the extent that Final CO(s) have not been issued thereforj. reasonably use, including, }'" invitees or concessi' (b)~ith()~tlil1litWg the provisi~J}s,,2fsubparagraph (a) above, Developer shall not use or occuP~~A,~i'oject Si~~;o:r~Y part ofthept()Ject Site, and neither permit nor suffer the Project Site~;~used or occupi' . . y of the following ("Prohibited Uses"): (i) for any unlawful or illeSI1ibusiness, use or p,>or for any business, use or purpose which violates any ments; (ii) for any us~:/Wli:i(;h is a public nuisance; or (iii) in such manner as may make any insuranc .. in force with respect to the Project Site. discovery of any Prohibited Use, Developer shall take all "W and equitable, to compel discontinuance of such business or ~':the removal from the Project Site of any subtenants, licensees, s,subject to applicable Requirements. (d) Notwithstanding anything in this Agreement to the contrary, Developer reserves the right to close or restrict access to any portion of the Project Site in connection with improvements undertaken in accordance with the provisions of this Agreement or to such extent as may, in the reasonable opinion of Developer's counsel, be legally necessary to prevent a dedication thereof or the accrual of prescriptive rights to any Person or Persons. WPB:273992:2 RGSZ 434677 2 1/4/07 34 Section 10.9 Design and Construction of the Infrastructure Improvements (a) PROVISIONS DETAILING THE CONSTRUCTION OF INFRASTRUCTURE IMPROVEMENTS NEEDED (12a) In no event shall the Developer, the CRA or any other CRA Indemnified Party have any liability in connection with the construction of the Infr or arising from any approvals relating thereto given or wit., such approvals) pursuant to this Agreement, or as a .resulti review, comment on or evaluate any plans, dr~~gs, s connection with the construction or operation of~~/Infrast ructure. Improvements as a result of ,- right to give or withhold 'g from any other right to or other documents in ents. ,~ Section 1 O.l 0 Cooperation Developer shalll.1~EJ.ll:reasonable disrupt the construction of other development and construction'pi tswithin the Cif. ity and CRA shall use all reasonable efforts not to disrupt, and tqpreY~~~,j~~~r persons from disrupting the construction of the Project or the Infrastructure Improvements,/::+'~t\" ';'<<f"~J; establishes an equal n of the Improvements. S.ection 10.11 Equal Opportunitx'_,:Reveloper";;~',; opportumty program ("EEO Program") wltftrespecttQ~.'~e construc Developer shall: 'i' " ':!,~,::{:~ (a) Comply with the City Ordinance NU1!J1ber , as amended from time to time; (b) Utilize minority l:>~~i~ess enterprises (!tMBE") and women's business enterprises ("WBE") participation 0 ':,~st fifteen percent (15%), cumulatively, in the design, development and construe . .. ~\;h Component of] the Improvements (the "Participation Percentage").; er is requ . 'ze at least MBE's or WBE's to meet the Particip~t' BE's a ",~. shall be those enterprises which are certified as MBE' applica.bl~ 'lations of Palm Beach County. Developer shall ",.".ti;',',":';:,:,::! utili or WBE'swhich have their principal place of business within oper shall utilize its bests efforts to retain WBE's and MBE's '>, ,',:...,{.<:., ".',.C> "(c)D~v~loper shall us~b~st efforts to cooperate with agencies to implement job training programsfOI~~Il1en andm-inority workers, as well as local residents, throughout the developmentan~j'$()tlS . q~:of the Improvements development, and cort~ction of the Improvements who v,ill cooperate '.'lith the CDD to promote and enhanoe minority participation in the design, development and oonstruction of the Improvements. and (ge) Developer shall submit written reports to the CRA no later than January 31 of each year regarding compliance with the EEO Program for the prior calendar year. WPB:273992:2 RGSZ 434677 21/4/01 35 The EEO Program stated herein shall be modified from time to time to incorporate such reasonable comments and suggestions by the CRA as are deemed appropriate. Developer shall use all reasonable efforts to implement the EEO Program and satisfy the various requirements hereof. ARTICLE XI ARTI ARTICLE XIII . .':J!:~i~,;~:~::,:::~t" TRANSFEItSANDASSIGNMENTS . '''; >""i':. Section 13.1 Limitations on Transfers andiAssigi1tn:~tts~)" Developer. (a) Prior to Substanti y transfer ownership of a Project Component or a Parcel with e City and the CRA which will not be unreasonably withheld, delayed. However, the City and CRA may require any transferee to demonstrate "~,ial ability to comply with the obligations that it has ~~~:~:~~~~~i ferc~~:nd~t f,~t!;~~ee~~per from its obligations with respect to such (t>)Developerri1aY;'~IlJthe ordinary course (a) transfer ownership of a portion of a Project Comp'(jnent in the ordinarY~ourse to purchasers of residential units, (b) lease a portion of a PrQ' Component to residetlp~l,~enants in the ordinary course, and (c) sell, lease or sub-lease co. ortions of a ProjeciComponent to end users, purchasers and investors consistent witH. ment. Upon>> .......... onveyance, Developer's liability under this Agreement with respect .... ,~ferred -BQ~~ofa Project Component shall be terminated. nd Assi nment b CRA and Cit . The CRA and the City shall not rights, interests and obligations under this Agreement except to one ARTICLE XIV DAMAGE, DESTRUCTION AND RESTORATION WPB:273992:2 RGSZ 434677 2 1/4/07 36 Section 14.1 Effect of Damage. Destruction or Restoration. The rights and obligations of the Parties under this Agreement shall not be modified or terminated if the Project Site is damaged or destroyed in whole or in material part by fire or other casualty prior to Substantial Completion; provided that any such event shall be deemed an Unavoidable Delay for Purposes of compliance with the provisions of Article I of this Agreement. ARTICLE XV CONDE Section 15.1 Effect of Condemnation. (a) If all or substantially all of the Project Site istak;~n for any public or quasi-public purpose by any Governmental Authority by the exercise oftheri '. of condemnation or eminent domain (a "Taking"), this Agreement shall term,i,llate and the shall have no further rights, interests or obligations with respect ,(}l~ct or Pro . If a Taking is of an individual Project Component, Develop. . "t\l,rther rig , interests or obligations with respect to the Project Component.,.,' aking of a Critical Parcel within the Project Site, Developer shall have t t to)~~ . ative Master Conceptual Plan and Alternative Master Development .... ule~~descri . ,Section 2.2. The terms of this provision do not apply to any t~gs undertake1.\py the,~lD' or CRA in the furtherance of the Project." . (b) The Parties hereoyagree to look solely tothe condemnation award for compensation for their respective interestsitlthe Project Site. (~~~~th~~yentofanY Taking~?the9ondemnation award shall be paid to Developer for all Parcel~;p~~tit)yit~f' ,,' f>"" ,-,...." :t: the right to intervene in any condemnation proceeding e'CRA Properties prior to transfer to Developer. ..;: (d) Developer sh invbr~ing the City Properties' ARTICLE XVI NO SUBORDINATION Section 16.1 Rights of the City and CRA. Except as set forth in Section _, the City and CRA' s interest in or rights under this Agreement as the same may be modified, amended or renewed in accordance with the provisions of this Agreement, shall not be encumbered by or subordinated in any way to (a) any mortgage now or hereafter existing, (b) any other liens or encumbrances hereafter affecting, created or suffered by Developer on its leasehold interest or otherwise, or (c) any sublease or any mortgage liens or encumbrances now or hereafter placed on any interest of any subtenant. Developer shall in no event have any right or authority to create WPB:273992:2 RGSZ 434677 2 liALDl 37 liens or encumbrances on or affecting any interest in or rights of the City or CRA in this Agreement. ARTICLE XVII REQUIREMENTS Section 17.1 Requirements. (a) In connection with its performance of each hereunder, Developer shall comply promptly 'Yitb:~any apd< consent to, approval of or acquiescence in any p . (or any agent or representative thereof) under th as being a determination that such are in complia construction plans, are structurally sufficient, prude (b) For purposes hereof, the term "Reg y and all laws, rules, regulations constitutions, orders, ordinanc ........ executive orders and requirements (now existing or hereafte~<>..... fi e)xQ't'i~}l Govern ntal Authorities having jurisdiction over Developer or other Pe.~~ons, or..~~;",,~~' or any street, road, avenue or sidewalk comprising a part of, or lying in front of,th~ proj ...........~!~;or above or below the Project Site (including, without limitation, the ADA anqany of thef'oregoing relating to handicapped access or parking, the buildin~,i~~de of thek~i1:y and 'e laws, rules, regulations, orders, ordinances, statutes, codes and.t~~irements of' i'; le fire rating bureau or other body exercising similar functions); iij';~ne Temporary", al COs issued for the Project or the Infrastructure Improvemen ' n in force; (iii) and all provisions and requirements of any property, casualty or o. ce policy required to be carried by Developer under this Agreement; ~i~)anaIl~ all te itions or covenants of any and all easements covenants, conditio~SO~l'ti,... ,:',';" .' f record, ";tfpns, or other indentures documents or instruments of record;.~d (v)'the Pr "Qcuments. ' ,.' (c) Developer shalf be an equal opportunity employer, and shall not engage in any unl~'Yful discrimination against any Person because of race, creed, national ongm, sex, age, disl:l.1:!>ili1:y,J;Ilarital status, or sexualorientation. ARTICLE XVIII i' ";).< '::'5~@'i!#MBILITY FOR INJURY OR DAMAGE ETC. iSk:',"t;:':, . .,.,."".....'.'" Section 18.ICf{A's Exculpation: Developer's Indemnification: Waiver of Subrogation. (a) The CRA Indemnified Parties shall not be liable to Developer for, and Developer shall indemnify, defend and hold the CRA Indemnified Parties harmless from and against, any loss, cost, liability, claim, damage, expense (including, without limitation, reasonable attorneys' fees and disbursements) penalty or fine incurred in connection with or arising from: (i) any WPB:273992:2 RGSZ 434677 2 1/4/07 38 injury (whether physical, economic or otherwise) to Developer or to any other Person in, about or concerning the Project Site or the Infrastructure Improvements; (ii) any damage to, or loss (by theft or otherwise) of, any of Developer's property or of the property of any other Person in, about or concerning the Project Site, or the use or occupancy thereof, irrespective of the cause of injury, damage or loss (including, without limitation, the acts or negligence of any tenant or occupant of the Project Site or of any owners or occupants of adjacent or neighboring property or caused by any construction or by operations in construction ()f any private, public or quasi-public work) or any latent or patent defects in the Project Site; or (r' omission or negligence of Developer or its Affiliates or of the contractors, agel1ts, s oyees guests, invitees or licensees of Developer or its Affiliates, inclu with acts, omissions and negligence arising out of the Due Diligence un n by rsuant to Section of this Agreement; except to the extent any of the' are due to the gross negligence or willful misconduct,\'J< ...., The CRA Indemnified Parties shall not be liable, to the exten~,9~'fD~veloper's ins coverage (if available to cover the loss and in any case exclusive of deU'ucti~les), for any loss or damage to any Person or property even if due to the gross negligence()rL~tlm~> misconduct of any CRA Indemnified Party and, to that extent, Developer relieves the CRA~~~ified Parties from such liability. Without limiting the generality?f me foregoing, excepttQ.>the extent caused by the gross negligence or willful misconduct of any of the C~,Indemnified Parties (and then only in such CRA Indemnified Party's propriet~~apacity.a$;<Jo its governmental capacity), the CRA Indemnified Parties shall not be li~R~ie for(i?any "f water supply, gas or electric current (ii) any injury or damage to per~9n or pr9perty re g from gasoline, oil, steam, gas, electricity, or hurricane, tornadof,.~C~ of God, act of war~"~nemy action, flood, wind or similar storms or disturbances, water,~ain or ice, ()~.(ii,i) l~"awage of gasoline or oil from pipes, appliances, sewer or plumbingwqrks. Section 18.2 Notice of InlUI')' or Damage. Developer shall notify the CRA within thirty (30) days of any .occurrence at th~.J>roject Site of which Developer has notice and which Developl;:rbeliey~s,c9uldgive rise to" a claim of $1,000,000 (adjusted for inflation) or more, wheth~~'R:rt).otanyclai~,~~~b~en made,c91nplaint filed or suit commenced. "c'_',',.,. ',' j ~'.:: i,' "" > ' '_~}:';:';fW>__:/'-'~:"i ,-'.: , :> :Wi"Section 18.3 Contra...tLiabilit . The obligations of Developer under this Article shall notig~.~ffected in any way l:WWC? absence or presence of insurance coverage (or any limitation the~~8~;" )~ding any statutort.lil1litations with respect to workers' compensation insurance), or by th'e...For refusal of anyinsurance carrier to perform any obligation on its part under insurance~plicie~~ffectin~tl1~Project Site; provided, however, that if the CRA actually receives any proceeds 9~~~rrl,?~~(s insurance with respect to an obligation of Developer under this Article, the amdQt).!"~~r~~fshall be credited against, and applied to reduce, any amounts paid and/or payable hereUhoerby Developer with respect to such obligation. Section 18.4 Defense of Claim, Etc. If any claim, action or proceeding is made or brought against any eRA Indemnified Party which is or may be subject to indemnification by Developer hereunder, then, upon demand by the CRA or such CRA Indemnified Party, Developer shall either resist, defend or satisfy such claim, action or proceeding in such CRA Indemnified Party's name, by the attorneys for, or approved by, Developer's insurance carrier (if such claim, action or proceeding is covered by insurance) or such other attorneys as the CRA WPB:273992:2 RGSZ 434677 2 1/4/07 39 shall reasonably approve. The foregoing notwithstanding, such CRA Indemnified Party may, at its own expense, engage its own attorneys to defend such CRA Indemnified Party, or to assist such CRA Indemnified Party in such CRA Indemnified Party's defense of such claim action or proceeding as the case may be. Section 18.5 Notification and Payment. Each CRA Indemnified Party shall promptly notify Developer of the imposition of, incurrence by or assel'tipn against such CRA Indemnified Party of any cost or expense as to which Developer h. . indemnify such CRA Indemnified Party pursuant to the provisions of this agrees to pay such CRA Indemnified Party all amounts due under this days after receipt of the notice from such CRA Indemnified Party. Section 18.6 Survival. The provisions oft1i.isAt#~il'shall Agreement. . ARTICLE XIx bon of this Section 19.1 Mutual Representatiqns. t;~F; ";.":,' (a) No Brokers. City, CRA andDevelop~reach r~:tesents to the other that it has not dealt with any broker, finder or~~e.!Fntity in co~~ction ~~ this Agreement or the transactions contemplated hereby, and each pai;ty shall indemn!:i}' the.pther against any claim for brokerage commissions, fees or other <; .. .' . sation by anY~!~~<:>Il.,~leging to have acted for or dealt with the indemnifying party in," "on with this A'gre~ment or the transactions contemplated hereby. (~)~~~~"t~'~~ecute. Cit)r,ClA.apd Developer each represents to the other that each Personr~ecutiilitHi$~~~~l1lent on behalf'pf City, CRA or Developer (or in any representative capa~io/', as applicable, has full right and lawful authority to execute this Agreement. Developer agJ;e~to furnish to City andC~on or prior to the date of execution of this Agreement true and correctcopies of such instruments or documents evidencing to the CRA's reasonable satisfaction the~lJ~~9ty of each such Person executing this Agreement on behalf of Developer (or in any represen.tative capacity). Sectt6tri;\r'~l~'fs~t~(fiiCity Representations. CRA and City each represent and warrant to Developer that: ',Y': (a) To the besfofthe CRA and City's knowledge, the Project is not in violation of any order or decree of any court of competent jurisdiction or any governmental agency and City or entity having jurisdiction. There are no pending or, to the best of the CRA's and City's knowledge, threatened judicial or administrative proceedings which, if determined adversely to the interest of the CRA and City, could materially affect the contemplated development or use of the Project Site as set forth in this Agreement or the other documents contemplated by this Agreement (collectively the "Project Documents" Exhibit "N"). WPB:273992:2 RGSZ 434677 2 1/4/07 40 (b) Prior Contracts. There are no eXIstmg agreements or contracts regarding the development of the Project Site other than those contemplated with the Developer under the Development Documents. (c) No Le~al Conflicts. The execution, delivery and performance of its obligations under the Development Documents by the CRA and City will not,: (I) violate, conflict with, result in a material default (following notice and/or expiration of the 'i> /cure period without cure or both, as applicable) under any agreement or otheIjnst ch the CRA and City is a ;,\"", party or by which the property may be bound or~i'~~t'ed, ments of law; (2) result in the creation or imposition of any lien whats ,"':et upol) ts, exc~pt as may be permitted by the Development Documents; nor ( Hi, ' t from, or any filing with, any governmental authority,e t velopment Documents. Section 19.3 Developer Representations. Developerrep and City that: (a) Or~anization; Legal Status. DeyeloperisdulY9rganized, validly existing and in good standing under the laws of its state of fOmf~tion and;'{a) ualified to transact business and is in good standing in the State of Flori~~;,'~d (b)l1~ all, approvals, governmental and otherwise, and full power and authoritiJoown(Qperate and construct the Project and otherwise carryon its business,~~/1I!ow condu~tecf,and B:, sed to be conducted. Developer's correct legal name is set forth onjt>>~'first page df~*s~.Q~y~lopment Agreement. ts and warrants to the CRA "'{.,,.< ":;' ;,"'(~::,':\I:::(' .,' ,~.\:, ;,,'-:'<:n~:" forceable ogl~\;::Wtio~s. Developer has full power, authority "and perform its obligations under the Development !<p~cessary action to authorize the execution of the , /lAd conditions contained herein or as may be 'en all necessary action to authorize the execution der the evelopment Documents. The officer or representative , , ,'" ent Documents has been duly authorized and empowered to do'so. The Development Docu " ,8 constitute legal, valid and binding obligations of Developer, erltJrfcea,{?le against Developer'iil~ccordance with their terms. (c},~() Legal, Conflicts", The execution, delivery and performance of its obligations under the Developll1~ptDocumerl'tsi/by Developer or its members will not: (a) violate, conflict with, result in a mateIjald~fa~'lt(following notice and/or expiration of the related grace/cure period without cure or botn,as:~pplicable) under any agreement or other instrument to which Developer is a party or by which tHe property may be bound or affected, or any requirements of law; (b) result in the creation or imposition of any lien whatsoever upon any of its assets, except as may be permitted by the Development Documents; nor (c) require any authorization or consent from, or any filing with, any governmental authority, except as contemplated by the Development Documents. (d) No Litigation. No action, suit or proceeding, or investigation, judicial, administrative WPB:273992:2 RGSZ 434677 2 1/4/07 41 or otherwise (including, without limitation, any reorganization, bankruptcy, insolvency or similar proceeding) currently is pending or, to the best of Developer's knowledge, threatened or contemplated against or affecting Developer or any of its members, partners or shareholders or the property that has not been disclosed by Developer in writing to City and CRA and which, if adversely determined, could reasonably be expected to have a material adverse effect on Developer's ability to perform under the Development Documents. (e) Financial Condition. Developer and each of if change has occurred in the financial condition of, pevel respective constituent equity owners, general pa '~;,or m a material adverse effect since the date of most r " fina and City with respect to each such party, other t b City. " ~:'}~,;ti~". re currently solvent. No of its members or their bers, which would have ubmitt d to the CRA CRA and (f) No Illegal Activity as Source of Funds.i'~6f . ,,~') . purchased, improved, equipped or furnished with proceed f the Site has been or will be '., al activity. (g) Com liance with Anti- Terroris,~)i<,oSanction" "'," ,< ti-Mone Launderin Laws. Developer, each of its members, ~~~'after ll&ri~~made reas6ft~ble inquiry each person owning an interest of 20% or more in Developer orit~rttem~~f~ (i) is not currently identified on OF AC List, and (ii) is not a person with'Yhom a citizeno-fili:e'United States is prohibited to engage in transaction by any trade embargo, eCQ~omic san~tion, or other prohibition of United States law, regulation, or Exe~u,tive Order of the President of the United States, including, without limitation, any anti- Tert'9~~in Laws. D~ . "r~~~es to confirm this representation and warranty in writing on an ann1;l,sis if request't1;).~ <:;RA or City to do so. han e in Facts or Circumstances. Developer has disclosed " d, has not failed to disclose any material fact that could r warr',z}~~4~..,rerein to be materially inaccurate, incomplete or ',f()vided in o~s'B-pplied with the bid for the Project, or in satisfaction ,~e, complete and correct in all material respects, and no adverse ch~geih any condition of:'llas occurred that would make any of such information materially inaccUrate, incomplete or misleading. <~ecti()n 19.4 No Oth~rI~1Re resentation. Developer confirms that, except for the represen'tati Qntained ill ns and (and any other representation expressly set forth in this Agreement . t Documents) (i) no representations statements or warranties, express or Imp made by, or on behalf of, City or CRA with respect to the Project Site or the transac", emplated by this Agreement, the status of title thereto, the physical condition thereof (inct g but not limited to subsurface conditions) the leases and occupancies thereof or with respect thereto, if any, the zoning, wetlands or other laws, regulations, rules and orders applicable thereto or the use that may be made of the Project Site, or the presence or absence of Hazardous Substances on or under the Project Site, (ii) Developer has relied on no such representations, statements or warranties (iii) City and CRA shall not be liable to Developer, in any event whatsoever to correct any latent or patent defects in the Project Site, and (iv) any and all copies of the environmental reports provided by the City or the CRA to the WPB:273992:2 RGSZ 434677 2 1/4/07 42 Developer have been delivered without representation or warranty. Without limiting the generality of the foregoing, but rather in confirmation and furtherance thereof, Developer shall be obligated to perform its duties and obligations under this Agreement regardless of any condition of or defect in the Project Site. ARTICLE XX CERTIFICATES BY CRA CITY A Section 20.1 Certificate of Developer. Qcr~il.!()per .. .'!t."'i\;;;-:-:;~ request by the CRA or City for reasonable pu~~i~~, exe CRA, or any other Person specified by the CRA;~rj)jt> . by such Person) (a) certifying that this Agreemenl there are modifications, that this Agreement, as mo' ... such modifications) (and, if so requested, that the EI1ll1 correct and complete copy of this Agreement), and (b) stir the CRA or City written notice of any default,gr ,anY event th passage of time, or both, would constitute .... "t,RY the C covenant, agreement, obligation or condit' has not been cured, and (ii) whetheq independent inquiry), the CRA or City.' obligation or condition contained in this default. Section 20.2 Certifi~~t~.pf CRA. CRA shall, Within fifteen (l5) days after request by Developer for reasonableP\U'Poses, execute, acknowledge and deliver to Developer, or such other Person specified by Developl;(r, a written statement (which may be relied upon by such Person) (a) certifying that this Agreement is unmodified and in full force and effect (or if there are modific '?t!~,tl:1.~tfui~" Agreement,~sI'tl()dified, is in full force and effect and stating such modifi..9:, . '(and~!c' ested, that;tp.eannexed copy of this Agreement is a true, correct and ete copy 0 ement), aid (b) stating (i) whether an Event of Default has o or whether the given Developer notice of any event that, with the giving of ri the passage of tim th, would constitute an Event of Default, which Default or fault has not been, d, and (ii) whether, to the actual knowledge of the CRA (but ndent inquiq~ .,.veloper is in default in the performance of any covenant, '...;l.ion or c. o....ft1.......:. '.' ...... n contained in this Agreement, and, so, specifying, in detail, tor Eventof'I:)efault and concerning such other matters as reasonably requested agreem each such De by Developer. Section 20.3 Certificate of City. City shall, within fifteen (15) days after request by Developer for reasonable purposes, execute, acknowledge and deliver to Developer, or such other Person specified by Developer, a written statement (which may be relied upon by such Person) (a) certifying that this Agreement is unmodified and in full force and effect (or if there are modifications, that this Agreement, as modified, is in full force and effect and stating such modifications) (and, if so requested, that the annexed copy of this Agreement is a true, correct and complete copy of this Agreement), and (b) stating (i) whether an Event of Default has WPB:273992:2 RGSZ 434677 2 1/4/07 43 occurred or whether City has given Developer notice of any event that, with the giving of notice or the passage of time, or both, would constitute an Event of Default, which Default or Event of Default has not been cured, and (ii) whether, to the actual knowledge of City (but without independent inquiry), Developer is in default in the performance of any covenant, agreement, obligation or condition contained in this Agreement, and, so, specifying, in detail, each such Default or Event of Default and concerning such other matters as reasonably requested by Developer. Section 21.1 Service of Notices and Oth ARTICLE XXI (a) Whenever it is provided herein that n request, consent, approval or other communication shall or may be given to, or se of the parties by the other, or whenever either of the parties desires to gt f serve up r any notice, demand, request, consent, approval or other communJ9' respect he 0 the Project Site, each such notice, demand, request, consent, , .r commUnI ion (referred to in this Section 21.1 as a "Notice") shall be invVl"iting (W' qt so indicated elsewhere in this Agreement) and shall be effective for any purpOSe only jf':~n or served by (i) certified or registered United States Mail, postage prepaid, r~tllrn receiprequested, (ii) personal delivery with a signed receipt or (iii) a reco.gtl,ized national9,ourier service, addressed as follows: IF TO IF TO CRA: IF T0 ClmY: -- <r; .... "<f-"r<.,.::;-' -.,.-:" ,-:<-,' ~/,:.; :}~'.:'.>\"l;.:, Any~&tice may be given, in'tJie.manner provided in this Section 21.1 (i) on either party's behalf by its attorneys designated bysllbh party by Notice hereunder, and (ii) at Developer's request, on its oelial,t!1:>Y any Recognized Mortgagee designated in such request. e effective on the date actually received, as indicated on the livery thereof is refused by the recipient thereof. (c) All refe as provided in the pre , this Agreement to the "date" of Notice shall mean the effective date, nlg subsection (b). Section 21.2 Consents and Approvals. (a) All consents and approvals which may be given under this Agreement shall, as a condition of their effectiveness, be in writing. The granting by a party of any consent to or approval of any act requiring consent or approval under the terms of this Agreement, or the WPB:273992:2 RGSZ 434677 2 ]/4/07 44 failure on the part of a party to object to any such action taken without the required consent or approval, shall not be deemed a waiver by the party whose consent was required of its right to require such consent or approval for any other act. The Executive Director of the CRA in conjunction with the CRA Board of Directors shall be deemed to have all necessary authority to act on the CRA's behalf and to give all approvals hereunder, and that any reference herein to consent of the CRA shall mean the Executive Director in conjunction with the CRA Board of Directors. (b) All consents and approvals which maype shall not (whether or not so indicated elsewhere i. ')Agr conditioned by such party and shall be given or withi such time period has been provided, within a r for a consent or approval, the disapproving party...... ..... . ..<'er with n submit to the requesting party a written statement settiqg':fop:h with spec such disapproval. under this Agreement nreasonably withheld or d provA;ged, and if no y request isapproval, s reasons for (c) If a party entitled to grant or deny its consent or apPtQ~a{'the "Consenting Party") within the specified time period shall fail tod~..s~!tl1~p,except as otlre~se provided in Section below, and provided that the requ~stf()f C(;n.~~nt,9Lapproval (~nd the envelope in which such request is transmitted to the extent, . itted bears the legend set forth below in capital letters and in a type size not 1 '1han lOw, the matter for which such consent or approval is requested shall befued pproved, as the case may be: "FAILURE TO RESPO ..<,,0 THIS~~Wi~.lHWITHIN THE TIME PERIOD PROVIDEP,IN THE DE~E0PM'ENT AGREEMENT BETWEEN THE .. BOYNTON . BEACH COMMUNITY REDEVELOPMENT;\.~~1'rC;Y ("CR4") AND INTOWN PARTNERS, LLC..SIiAh.L . CONSTI_ AUTOMATIC APPROVAL OF THE ~mRS...J)ESC~IBEDHl$REINWITH RESPECT TO SECTION [Pl~P INAPP: .,. ..... BLE SECtiON] OF SUCH DEVELOPMENT AGREEMENT.'t.: .;:' , ,'''':i,i -;;1" 'i,,' ARTICLE XXII ~<.,. , ""'-<'" ,::)0 ,_, '0' ,"./;,,;.:.,>.. ,,-,,";"'''';'''," Section2'~.t!(C;~.~~~ration by Developer. Developer shall cooperate fully and faithfully with any investig~'ti()rf;'~l;1~it or inquiry conducted by any Governmental Authority that is empowered directly Of by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by a Governmental Authority that is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the investigation, audit or inquiry relating to affecting the performance of this Agreement or any other Project Document. In addition, Developer shall promptly report in writing to the City Attorney and the CRA' s General Counsel any solicitation, of which Developer's officers or directors have knowledge, of money, goods, requests for future employment or other benefit or thing of value, by or on behalf of any employee of City or CRA, WPB:273992:2 RGSZ 434677 2 1/4/07 45 or other Person relating to the procurement or obtaining of this Agreement or any other Project Document by Developer or affecting the performance of this Agreement. ARTICLE XXIII ENVIRONMENTAL INDEMNIFICATION Section 23.1 Environmental Indemnification. i''i(:]!cr'h ,'~l:,;";;:,~N,:~j: 'ii','.,.:'.:!.""; nt' ,"' i"'I\~':;;; ,", , (a) Without limitation on any obligation which the have as a matter of law, the Developer shall indemnify, defend, release and ho~cith Ciess against (i) all claims or alleged cairns and response costs and fin~sand penalties\ City, CRA or the Developer by any Governmental Authority orth~r~Lpy which con presence of Hazardous Substances which become present on or \Yii:h,oject Site, or the discharge of Hazardous Substances in excess of any limitations prcivid whenever such Hazardous Substances become present on or within the P . ~Site, whe or after the Effective Date, (ii) all claims or alleged claims agains r CRA by rnmental Authority or third party for injunctive relief for the '" . sance or re ated to the presence of Hazardous Substances which become prt t on Project Site or the discharge of Hazardous Substances in excess of anyli*itatio..,:pplicable law, whenever such Hazardous Substances become present on or witltirtthe Pr te, whether prior to or after the Effective Date, and (iii) all claims or alleged claims of bodily injury or property damage asserted against the City and CRA bytliird parties which are.rebited to the presence of Hazardous Substances which become present on or within the> Ptoject Site, or the discharge of Hazardous Substances in excess of aqy .... tions provided by applicable law, whenever such Hazardous Substances become presenf'lo. "~I"~ in the Project Site whether prior to or after the Effective Date, but, with ctt? disch . .,s,;~()W Hazardous Substances which become present on the ProjectS' .~~ing Date,oii.lYJi~;'~7extent that such discharge directly results from, (a) failure.; . operly deSlgI:1;dmplement, construct, perform or supervise any , or (b) any action or failure to act by the Developer or any per~~n ting on behalf o<>>eveloper, or (c) any failure by the Developer or any Person act!9 on behalf of the De~~loper to observe the requirements of applicable law. The ind~ifj<;:~tion under this Secti~n shall not apply to conditions which existed in any City ProperijotGRA Property prior to conveyance to Developer. (b) An.y~ $IJ14~~pursuant to this Section may include all reasonable attorneys', engineers' and c ' ,fees and costs incurred by the City and/or CRA in defending against any matter as to w . ..... .. .:itDeveloper is required to indemnify the City and/or CRA under the foregoing clauses (a)(i)through (a)(iii), inclusive. (c) The provisions of this Section shall not apply and may not be relied upon by the City and/or CRA, with respect to claims or alleged claims, damages and response costs and fines and penalties to the extent that such claim or liability was caused by the gross negligence or willful conduct of the City and/or CRA. WPB:273992:2 RGSZ 434677 2 1/4/07 46 (d) The Developer's obligations under this Section shall be secured under the Comprehensive General Liability Policy described in Section hereof and this Agreement shall constitute a "covered contract" for such purpose. ARTICLE XXIV MISCELLANEOUS Section 24.2 Dispute Resolution. be governed by, and t regard to principles of exclu ively in Palm Section 24.1 Governing Law and Venue. 1'11is construed in accordance with, the laws of the Sof Flor conflict of laws. Venue of all proceedings in ion h Beach County, Florida. '{"..t" (a) ALL DISPUTES UNDER THIS AGREEMENT!t. BINDING ARBITRATION. Section 24.3 Attorney's Fees. In the everif9fbP1ding the Arbitrator may award the prevailing party its reasonableattbrneys~~es.~f sts. In the event of litigation, the prevailing party shall be entitled to.~,.~ward"~l itsr: ole attorneys' fees and costs (including all fees and costs through alll~yels of~~peal. Section 24.4 No Waiv elsewhere in this Agreement.~i~ the CRA' s liability and th, '.' constitutional, statutory, c ., . bthing contained in this Section or waiver of the limitation placed upon rth in 9768.28, Fla. Stats" or of any other protections afforded to public bodies or "i;~\;:_~~ The captions ofi;tli~$()\greement are for the purpose of convenience of reference only, art~;iil.h() way define, limit ord~~cribe the scope or intent of this Agreement or in any way affect thi's~gree:ment. ,'.':.'. .::" (b) The'Fable of Contents is for the purpose of convenience of reference only, and is not to be deemed orCc:)l1strued iriany way as part of this Agreement. (c) Nothing in this Agreement or in the parties' acts or omissions in connection herewith shall be deemed in any manner to waive, impair, limit or otherwise affect the authority of the eRA or City in the discharge of its police or governmental powers. (d) All references in this Agreement to the terms "herein", "hereunder" and words of similar import shall refer to this Agreement, as distinguished from the paragraph, Section or Article within which such term is located. WPB:273992:2 RGSZ 434677 2 1/4/07 47 Section 24.6 Entire Agreement. Etc. (a) This Agreement, together with the exhibits and attachments hereto, contains all of the promises, agreements, conditions, inducements and understandings between the City, CRA and Developer concerning the Project and there are no promises, agreements, conditions, understandings, inducements, warranties or representation~, oral or written, express or implied, between them other than as expressly set forth herein an' hments hereto or as may be expressly contained in any enforceable wri, n r instruments executed simultaneously herewith by the parties hereto, exS . r the t Documents. (b) No covenant, agreement, term or modified, altered, waived or terminated except b alteration, waiver or termination executed by Cit Default or default shall affect or alter this Agreeme~'ti;: term and condition of this Agreement shall continue/in fu other then existing or subsequent Default or defau!tthereof. Section 24.7 Invaliditv of Certain "Provisions. Subject to prOVISIOns of Section of this Agreement, any provIsion oftllisAgr~ement or the application thereof to any Person or circumstances is, to any extent,<j;'inally d~t~~ined by a court of competent jurisdiction to be invalid and unenforceable, the remainder of this Agreement, and the application of such provision to~~~pns or circums~ancesotl:1er than those as to which it is held invalid and unenforceable shaU':i'1pt be affected<tll~r~ ", .and each term and provision of this Agreement shall be valid andS;I1forceable to thefu~~$t ent permitted by law. ulative. Each right and remedy of either party provided for '......... .f~d shall be in addition to every other right or remedy ent, or:~.1pJ.;'~~reafter existing at law or in equity or by statute or e expressl~':~hhited by the terms of this Agreement), and the cise by a:party of anyone or more of the rights or remedies , now or hereafter existing at law or in equity or by statute or ,pressly limited by the terms of this Agreement, shall not pr '.' .... / :Th-~.simultaneous or n'~exercise by such party of any or all other rights or remedies provid;!~(~~()J:s~'ipthis Agreem~"iirnow or hereafter existing at law or in equity or by statute or otherwiseeXceptas otherwi~ee'xp-ressly limited by the terms of this Agreement. Section2? rs and Assi ns. The agreements, terms, covenants and conditions herein shall be bin ,.'~p<m, and inure to the benefit of, City, CRA and Developer and, except as otherwise providedJIerein, their respective successors and permitted assigns and shall be construed as a covenant running with the land. Section 24.10 Non-liability of Officials and Employees. No member, official or employee of the CRA, the City, or any other governing body (including, without limitation, the Chair or Members of the CRA, the Mayor or the Commissioners) shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by the City or CRA WPB:273992:2 RGSZ 434677 2 1/4/07 48 for any amount or obligation which may become due to Developer or successor under the terms of this Agreement; and any and all such personal liability, either at common law or in equity or by constitution or Statute, of, and any and all such rights and claims against, every such Person, or under or by reason of the obligations, covenants or agreements contained in this Agreement or implied therefrom are expressly waived and released as a condition of, and as a consideration for, the execution of this Agreement. Section 24.11 Conflict of Interest. Developer repres,~Ats an its actual knowledge, no member, official or employc:;e of", indirect financial interest in this Agreement, nor artici' Agreement that is prohibited by law. Develope' sent~ knowledge, no officer, agent, employee or rep' any payment or other consideration for the makiri Developer. Developer represents and warrants that It or give, any third person any money or other consi than normal costs of conducting business and costs of pr engineers, and attorneys. Developer aCkno\\-,led- c:;~ that City foregoing representations and warranties ill ",~~to this A into this Agreement absent the same.'''<'' ;',. ..,.', ','::"'.);:..<: Section 24.12 No Partnership..~~ parti~~ hef~l#}~~~~owledge that it is not their intention under this Agreement to create betW'~~n them~~t~es a partnership, joint venture, tenancy-in-common, joint tenaIl-~.~t co-ownersHip or ~~~pcy relationship for any purpose whatsoever. Accordingly, notwi'tfi$tanding any ~xpre~~iQns or provisions contained herein, nothing in this Agreementgrthe other Project DoCuments shall be construed or deemed to create, or to express an intetlttocreate, a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or ag~ncy.relationship of any kind or nature whatsoever between the parties hereto. Th~ prgvisions bfthisS.~ct!on shall survive termination of this Agreement. "drl"2~;'I3;tJ;i~1;,:1~'ermit. This#~~ement is not and shall not be construed as a t permit, pt approval or authorization to commence development, nor lieve the DevJ the obligations to obtain necessary Comprehensive Plan nts and developme '';I'ovals that are required under applicable law and under and the terms of this ent. ,<1':.$ non 163.3220 Fla. Stats. Develo ment A reement. Developer ';e that this Agreement is not intended to and does not constitute a Government Development Agreement Act Section 24.15 Time Periods. Any time period which shall end on a day other than a Business Day shall be deemed to extend to the next Business Day. Section 24.16 No Third Party Beneficiaries. Nothing in this Agreement shall confer upon any Person, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement; provided, however, that a WPB:273992:2 RGSZ 434677 2~ 49 Developer lender shall be a third party beneficiary hereunder to the extent such Recognized Mortgagee is granted rights hereunder. Section 24.17 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, DEVELOPER, CITY AND CRA WAIVE KNOWINGLY AND VOLUNT ARIL Y FOR ITSELF AND ALL PERSONS CLAIMING BY OR THROUGH THEM, ALL RIGHT TO TRIAL BY JURY IN ANY OTHER JUDICIAL PROCEEDINGS,:>.HEREAFTER INSTITUTED IN RESPECT OF THIS AGREEMENT.::;':;':\";\ Section 24.18 Recordation. A short form Agreement, in the form attached hereto as Exhi CRA agrees to execute the short form Memoran' WPB:273992:2 RGSZ 434677 2 1/4/07 lopment and Disposition the Developer. The BEACH COMMUNITY REDEVELOPMENT AGENCY By: Title: INTOWN PARTNERS, LLC By: Title: 50 WPB'273992'2 R(1SZ 4346773 Jli!lJ1 1 cdocs:/ /docsstl/434677 /2 cdocs:/ /docsstl/434677 /3 standard 23 11 o o o o 34