Agenda 03-13-18 CITY OF BOYNTON BEACH
SPECIAL MEETING
DATE: Tuesday, March 13, 2018 TIME: 4:00 PM
PLACE: Library Program Rm. 208 S. Seacrest Blvd.
1. AGENDA ITEMS
A. OPENING:
Call to Order by Steven B. Grant Mayor
I nvocation
Pledge of Allegiance to the Flag led by Commissioner McCray
Roll Call
Agenda Approval
1. Deletions, Corrections
2. Approval of Agenda
Powerpoint Presentation by Staff
Public Audience
Recess- Commission Meeting
Call to Order CRA Meeting
1. CRA Business
Recess CRA Meeting
Resume Commission Meeting
B. PUBLIC HEARING to acknowledge appropriate advertising in accordance with Internal Revenue
Code of 1986, as amended, Section 147(f) for the purposes of acknowledging the proposed
issuance by Public Finance Authority of its Capital Improvement Revenue Bonds, Series 2018 in
one or more taxable or tax-exempt series, in an amount not to exceed $78,000,000 and to conduct
a public hearing as referenced in the advertising.
C. PROPOSED RESOLUTION NO R18-041 - Authorize the Mayor to sign an Interlocal
Agreement with the Boynton Beach Community Redevelopment Agency for the funding for certain
portions of the Town Square Project.
D. PROPOSED RESOLUTION NO. R18-042- Amend the adopted FY 2017-2018 General Fund
Budget from$89,752,645 to $93,253,628, an increase of$3,500,983.
E. PROPOSED RESOLUTION NO. R18-043- Authorize the Mayor to sign the Town Square
Page 1 of 172
Redevelopment Phase 2 Services Agreement with E2L Real Estate Solutions, LLC of Winter
Park, FL.
F. PROPOSED RESOLUTION NO. R18-044-Authorize the Mayor to sign a Master Development
Agreement with CFP Boynton Beach Town Square, LLC for the development of certain
improvements within the Town Square Project and approval for the purposes of Section 147(F) of
the Internal Revenue Code and general authorization to obtain permanent financing for the CFP
improvements and providing for other related matters.
G. Motion to approve general terms of Ground Lease Agreement and Facilities Lease Agreement
between the City and CFP subject to approval by City Attorney.
H. PROPOSED RESOLUTION NO. R18-045- Authorize the Mayor to sign the New Markets Tax
Credit (NMTC) Consulting agreement with Atwater Infrastructure Partners, LLC to provide
consulting services in connection with the potential allocation of New Market Tax Credits to fund
the redevelopment of the Old High School and related services.
I. PROPOSED RESOLUTION R18-046- Authorize the Mayor to sign the following agreements
with J KM Developers/Blackrock or its successors and assigns, for (1) The sale and purchase of
real property owned by the city, and (2)A Development Agreement for Multi-Family rental housing
with associated parking facilities, and (3) a parking license to provide parking for city facilities;
and (4) an option agreement City re-acquisition of real property, all in furtherance of development
of the City's Town Square Project.
2. ADJOURN
The Board may only conduct public business after a quorum has been established. If
no quorum is established within twenty minutes of the noticed start time of the meeting
the City Clerk of her designee will so note the failure to establish a quorum and the
meeting shall be concluded. Board members may not participate further even when
purportedly acting in an informal capacity.
NOTICE
NOTICE IF A PERSON DECIDES TO APPEAL ANY DECISION MADE BY THE CITY
COMMISSION WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING,
HE/SHE WILL NEED A RECORD OF THE PROCEEDINGS AND, FOR SUCH
PURPOSE, HE/SHE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE
PROCEEDING IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND
EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. (F.S. 286.0105)
THE CITY SHALL FURNISH APPROPRIATE AUXILIARY AIDS AND SERVICES
WHERE NECESSARY TO AFFORD AN INDIVIDUAL WITH A DISABILITY AN EQUAL
OPPORTUNITY TO PARTICIPATE IN AND ENJOY THE BENEFITS OF A SERVICE,
PROGRAM, OR ACTIVITY CONDUCTED BY THE CITY. PLEASE CONTACT THE
CITY CLERK'S OFFICE, (561) 742-6060 OR (TTY) 1-800-955-8771, AT LEAST 48
HOURS PRIOR TO THE PROGRAM OR ACTIVITY IN ORDER FOR THE CITY TO
REASONABLY ACCOMMODATE YOUR REQUEST. ADDITIONAL AGENDA ITEMS
MAY BE ADDED SUBSEQUENT TO THE PUBLICATION OF THE AGENDA ON THE
CITY'S WEB SITE. INFORMATION REGARDING ITEMS ADDED TO THE AGENDA
AFTER IT IS PUBLISHED ON THE CITY'S WEB SITE CAN BE OBTAINED FROM
THE OFFICE OF THE CITY CLERK.
Page 2 of 172
1.A.
AGENDA ITEMS
3/13/2018
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
REQUESTED ACTION BY COMMISSION:
OPENING:
Call to Order by Steven B. Grant Mayor
I nvocation
Pledge of Allegiance to the Flag led by Commissioner McCray
Roll Call
Agenda Approval
1. Deletions, Corrections
2. Approval of Agenda
Powerpoint Presentation by Staff
Public Audience
Recess- Commission Meeting
Call to Order CRA Meeting
1. CRA Business
Recess CRA Meeting
Resume Commission Meeting
EXPLANATION OF REQUEST:
HOW WILL THIS AFFECT CITY PROGRAMS OR SERVICES?
FISCAL IMPACT:
ALTERNATIVES:
STRATEGIC PLAN:
STRATEGIC PLAN APPLICATION:
Page 3 of 172
CLIMATE ACTION:
CLIMATE ACTION DISCUSSION:
Is this a grant?
Grant Amount:
Page 4 of 172
1.B.
AGENDA ITEMS
3/13/2018
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
REQUESTED ACTION BY COMMISSION: PUBLIC HEARING to acknowledge appropriate advertising
in accordance with Internal Revenue Code of 1986, as amended, Section 147(f)for the purposes of
acknowledging the proposed issuance by Public Finance Authority of its Capital Improvement Revenue
Bonds, Series 2018 in one or more taxable or tax-exempt series, in an amount not to exceed $78,000,000 and
to conduct a public hearing as referenced in the advertising.
EXPLANATION OF REQUEST: In accordance with Internal Revenue Code of 1986, Section 147(f) a
notice is required to be published 14 days prior to a public hearing to receive comments from interested
persons in connection with the proposed issuance by Public Finance Authority of its Capital Improvement
Revenue Bonds (City of Boynton Beach Municipal Improvement Project, series 2018 in the amount not to
exceed $78,000,000.
HOW WILL THIS AFFECT CITY PROGRAMS OR SERVICES? N/A
FISCAL IMPACT: N/A
ALTERNATIVES: N/A
STRATEGIC PLAN:
STRATEGIC PLAN APPLICATION:
CLIMATE ACTION: No
CLIMATE ACTION DISCUSSION:
Is this a grant? No
Grant Amount:
ATTACHMENTS:
Type Description
D Attachment Proof of Publication TEFRA
Page 5 of 172
Florida Public Notices: Search for Public and Legal Notices in FL newspapers Page 14 of 33
reserves the right to accept or reject any or all Bid submittals, in whole or in part,with or without cause,to waive any
irregularities and/or technicalities,and to award the contract on such coverage and terms it deems will best serve the
interests of the City.CITY OF PALM BEACH GARDENS Patricia Snider, CMC, City Clerk Publish: Palm Beach Post
2-27.2018
Palm Beach Post,The
Feb.27,2018
Miscellaneous Notices
Notice of Lien Sale Legal"In accordance with the provisions of State law,there being due and unpaid charges for
which the undersigned is entitled to satisfy an owner and/or manager's lien of the goods hereinafter described and
stored at the Life Storage location(s)listed below.And,due notice having been given,to the owner of said property
and all parties known to claim an interest therein,and the time specified in such notice for payment of such having
expired,the goods will be sold at public auction at the below stated location(s)to the highest bidder or otherwise
disposed of on Friday 3/16/2018 @ 9:00am. Life Storage#486 6800 N Military Trail West Palm Beach , FL 33407
Phone 561-845-8711 Donald St.A Cunningham= Hsld gds/Furn/Boxes Sondra Millman=Account Records/Clothes,
Sales Samples/Christmas Roderick Hunt=Hsld gds/Furn Alexandra Russo = Hsld gds/Furn/Clothes Joel Nunez=
Hsld gds/Furn Jenisa Kenty= Boxes/Bins Felicia Slappy= Hsld gds/Furn Shakena Miller=Toys/Clothes/Bed
Cheralyn Joseph= Hsld gds/Furn Kynan Mc Donald =Car Parts 2-27,3-6/2018
Palm Beach Post,The
Feb.27,2018
Miscellaneous Notices
CITY OF BOYNTON BEACH,FLORIDA NOTICE OF PUBLIC HEARING For the purposes of Section 147(f)of the
Internal Revenue Code of 1986,as amended, notice is hereby given that the City Commission of the City of Boynton
Beach,Florida(the"City Commission")will hold a public hearing on March 13,2018 at 4:00 p.m.,or at a time as soon
thereafter as practicable, in the Library Program Room located at the City Library,208 S. Seacrest Blvd., Boynton
Beach,Florida 33435,Palm Beach County, in connection with the proposed issuance by Public Finance Authority,a
commission organized under and pursuant to the provisions of Sections 66.0301,66.0303 and 66.0304 of the
Wisconsin Statutes,as amended(the"Issuer"),of its Capital Improvement Revenue Bonds(City of Boynton Beach
Municipal Improvement Project),Series 2018, in one or more taxable or tax-exempt series(the"Bonds"),in an amount
not to exceed$78,000,000.The Bonds are expected to be issued pursuant to Section 66.0304 of the Wisconsin
Statutes,as amended.The proceeds of the Bonds will be loaned to CFP Boynton Beach Town Square, LLC,a Florida
limited liability company("CFP").CFP will use the proceeds of the Bonds to provide permanent financing and/or
refinancing for the acquisition,construction and equipping of all or a portion of the Project,which will be leased to the
City of Boynton Beach, Florida(the"City").The Project will include the following components including,without
limitation,any and all design, planning,surveying,engineering,permitting,and pre-development services and
expenditures related thereto,and all related and supporting infrastructure(together,the"CFP Improvements"): (1)The
Town Square Property Improvements:The Town Square Property consists of approximately 16 acres,and is bounded
by East Boynton Beach Boulevard, South Seacrest Boulevard,SE 2nd Avenue,and SE 1st Street, in the City.The
improvements to be constructed within the Town Square Property are anticipated to include,but not be limited to:(a)
the construction of a combined City Hall and Library,to consist of approximately 65,000 square feet for the City Hall
needs,and approximately 44,000 square feet for the Library needs;(b)the construction of parks,to consist of
approximately 0.90 acres and approximately 0.22 acres,and other open space enhancements;and(c)the
reconstruction of Kids Kingdom Playground,to consist of approximately 15,000 square feet. (2)High Ridge Road
Property Improvements.The High Ridge Road Property consists of approximately 5.46 acres,and is bounded by West
Gateway Boulevard, High Ridge Road,and 1-95 in the City.The portion of the improvements to be constructed within
the High Ridge Road Property shall inclu$e a new Police Station,consisting of approximately 56,000 square feet and
related improvements.(3)North-East 1 st Street Property.The North-East 1 st Street Property consists of
Page 6 of 172
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Florida Public Notices: Search for Public and Legal Notices in FL newspapers Page 15 of 33
approximately 1 acre,and is located at North-East 1st Street, in the City,and is bounded by NE 1st Avenue.The
portion of the improvements to be constructed within the North-East 1st Street Property shall include Fire Station#1,
consisting of approximately 10,000 square feet and related improvements.(4)Infrastructure Improvements.The
Infrastructure Improvements includes construction of all infrastructure necessary to support the CFP Improvements
and future development.CFP will also use the proceeds of the Bonds to fund necessary debt service reserves,and/or
capitalized interest on the Bonds, if any,and to pay costs associated with the issuance of the Bonds.The Project will
be financed as part of on an ongoing plan of financing for the Project.The CFP Improvements will be initially managed
and/or operated by the City.The Bonds shall be payable solely from the revenues derived from a loan and other
financing documents to be executed between the Issuer and CFP prior to or contemporaneously with the issuance of
the Bonds.The Issuer will not be obligated to pay the principal of,premium, if any,or interest on the Bonds except
from the payments of CFP,respectively.Neither the Bonds, nor any interest thereon,shall constitute an indebtedness
or pledge of the general credit or taxing power of the State of Florida,the City of Boynton Beach,Florida,or any
political subdivision or agency thereof.The Issuer has no taxing power. Issuance of the Bonds is subject to several
conditions including satisfactory documentation and receipt of necessary approvals for the financing.The
aforementioned meeting shall be a public meeting and all persons who may be interested will be given an opportunity
to be heard concerning the same.Written comments may also be submitted prior to the hearing to the City Clerk's
Office, 100 E.Boynton Beach Blvd., Boynton Beach, Florida 33435,directed to the City Clerk.ALL PERSONS FOR
OR AGAINST SAID APPROVAL CAN BE HEARD AT SAID TIME AND PLACE. IF A PERSON DECIDES TO
APPEAL ANY DECISION MADE BY THE CITY COMMISSION WITH RESPECT TO SUCH HEARING OR MEETING
(S)HE WILL NEED TO ENSURE THAT A VERBATIM RECORD OF SUCH HEARING OR MEETING IS MADE
WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS BASED(F.S.
286.0105)THE CITY SHALL FURNISH APPROPRIATE AUXILIARY AIDS AND SERVICES WHERE NECESSARY
TO AFFORD AN INDIVIDUAL WITH A DISABILITY AN EQUAL OPPORTUNITY TO PARTICIPATE IN AND ENJOY
THE BENEFITS OF A SERVICE, PROGRAM,OR ACTIVITY CONDUCTED BY THE CITY.PLEASE CONTACT THE
CITY CLERK'S OFFICE,(561)742-6060 OR(TTY)1-800-955-8771 AT LEAST FORTY-EIGHT HOURS PRIOR TO
THE PROGRAM OR ACTIVITY IN ORDER FOR THE CITY TO REASONABLY ACCOMMODATE YOUR REQUEST.
CITY OF BOYNTON BEACH,FLORIDA 2-27/2018
Palm Beach Post,The
Feb.27,2018
Miscellaneous Notices
Notice Under Fictitious Name Law Pursuant to Section 865.09 Florida Statutes NOTICE IS HEREBY GIVEN that the
undersigned desiring to engage in business under the fictitious name of Thrive Earth located at 340 Royal Poinciana
Way,Ste 317#323 in the County of PALM BEACH in the City of Palm Beach Florida 33480 intends to register the
said name with the Division of Corporations of the Florida Department of State Tallahassee Florida. Dated at West
Palm Beach Florida this 1 day of February,2018. Kelly Cain 2-9/2018
Show results beginning at page:
1 2 3 4 ... 13
Page 7 of 172
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1.C.
AGENDA ITEMS
3/13/2018
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
REQUESTED ACTION BY COMMISSION:
PROPOSED RESOLUTION NO R18-041 -Authorize the Mayor to sign an Interlocal Agreement with the
Boynton Beach Community Redevelopment Agency for the funding for certain portions of the Town Square
Project.
EXPLANATION OF REQUEST:
The I LA outlines CRA annual funding commitment for the Town Square Project beginning with FY 18/19 thru
FY 43/44.
Town Square Project is a mixed use project on approximately 16 acres of land in downtown. The project will
include a Hotel, residential properties, two parking garages, City Hall/Library, Refurbished Hlgh School, Fire
Station, open space, new Police Headquarters off 95/Gateway.
HOW WILL THIS AFFECT CITY PROGRAMS OR SERVICES?
FISCAL IMPACT:
ALTERNATIVES:
STRATEGIC PLAN: Energetic Downtown: Focal Point for Boynton Beach
STRATEGIC PLAN APPLICATION: Provides funding in support of redevelopment of Town Square into a
Mixed Use center.
CLIMATE ACTION: No
CLIMATE ACTION DISCUSSION:
Is this a grant? No
Grant Amount:
ATTACHMENTS:
Type Description
D Resolution Resolution approving the ILA with C RA for Town
Square Funding
Attachment ILA with CRA
Page 8 of 172
I RESOLUTION NO. R18-
2 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
3 FLORIDA, APPROVING AND AUTHORIZING THE MAYOR TO
4 SIGN AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF
5 BOYNTON BEACH AND THE BOYNTON BEACH COMMUNITY
6 REDEVELOPMENT AGENCY FOR FUNDING CERTAIN
7 PORTIONS OF THE TOWN SQUARE PROJECT; AND
8 PROVIDING AN EFFECTIVE DATE.
9 WHEREAS; the City and the CRA desire to provide funding for a project known as
10 Town Square Redevelopment Project which falls within the CRA boundaries and more
11 specifically within the Cultural District and the Boynton beach Boulevard Districts; and
12 WHEREAS, the Town Square project furthers the CRA's Community Redevelopment
13 Plan to prevent and eliminate slum and blight within the Redevelopment Area; and
14 WHEREAS, the this Interlocal Agreement outlines the CRA annual funding
15 commitment for the Town Square Proej ect beginning with fiscal year 2018/19 through 2043/44.
16 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
17 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
18 Section 1. Each Whereas clause set forth above is true and correct and incorporated
19 herein by this reference.
20 Section 2. The City Commission of the City of Boynton Beach,Florida does hereby
21 approve and authorize the Mayor to sign the Interlocal Agreement between the City of Boynton
22 Beach and the Boynton Beach Community Redevelopment Agency for CRA funding of
23 portions of the Town Square Project, a copy of said Interlocal Agreement is attached hereto as
24 Exhibit"A".
25 Section 3. That this Resolution shall become effective immediately upon passage.
Page 9 of 172
26 PASSED AND ADOPTED this day of , 2018.
27 CITY OF BOYNTON BEACH, FLORIDA
28
29 YES NO
30
31 Mayor— Steven B. Grant
32
33 Vice Mayor—Justin Katz
34
35 Commissioner—Mack McCray
36
37 Commissioner—Christina L. Romelus
38
39 Commissioner—Joe Casello
40
41 VOTE
42 ATTEST:
43
44
45
46 Judith A. Pyle, CMC
47 City Clerk
48
49
50 (City Seal)
51
Page 10 of 172
INTERLOCAL AGREEMENT BETWEEN THE CITY
OF BOYNTON BEACH AND THE BOYNTON
BEACH COMMUNITY REDEVELOPMENT
AGENCY FOR THE FUNDING OF CERTAIN
PORTIONS OF THE TOWN SQUARE PROJECT
THIS AGREEMENT is made this day of , 2018 by and
between the CITY OF BOYNTON BEACH, a Florida Municipal Corporation, ("City"),
and the BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY,
("CRA") (individually and collectively, the"Party" or"Parties").
WITNESSETH:
WHEREAS, the 2016 Boynton Beach Community Redevelopment Plan ("Plan")
calls for the redevelopment of the Cultural District and the Boynton Beach Boulevard
District as those Districts are described in the Plan; and
WHEREAS, the City and the CRA desire to provide funding for a project known
as the Town Square Redevelopment Project ("Project"), which falls within the CRA
boundaries, and more specifically, in the Cultural District and the Boynton Beach
Boulevard District; and
WHEREAS, the City contracted with E2L, LLC for the Project under the "Town
Square Project-Phase 1 Services Agreement;" and that is now completed; and
WHEREAS, the City has decided to move forward with Town Square-Phase 2,
which includes construction and financing of the Project; and
WHEREAS, the Project furthers the CRA's Community Redevelopment Plan
("Plan") because the Project will help prevent and eliminate slum and blight within the
Redevelopment Area, and will provide the opportunity to redevelop the area within the
Project("Project Area")in accordance with the Plan; and
00824643-1
Page 11 of 172
WHEREAS, the CRA is limited by § 163.370(3), Florida Statutes from making
certain expenditures; and
WHEREAS, the Palm Beach Board of County Commissioners at their January
17, 2018 meeting, approved the City and CRA's request to permit CRA funds to be used
for the Proj ect; and
WHEREAS, the CRA desires to reimburse the City for certain expenses related
to the Project that are not prohibited by the Florida Statutes; and
WHEREAS, the CRA Board finds that this Agreement, and the use of the CRA's
funds to implement the Project to be consistent with the Plan and Florida Statutes; and
WHEREAS, the CRA and the City find that this funding agreement serves a
municipal and public purpose, furthers the Plan, and is in the best interest of the health,
safety, and welfare of the residents and business owners within the Community
Redevelopment Area; and
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the Parties hereby agree as follows:
1. Recitals. The recitals set forth above are hereby incorporated herein.
2. Obligations of the CRA.
a. The CRA shall provide funding to the City in an amount not too
exceed $3,700,000 per fiscal year beginning with FY 2018/19 thru FY
2043/44, consistent with the terms of this Agreement, to be used for
reimbursement of certain costs not prohibited by § 163.370(3), Florida
Statutes.
b. The CRA's obligation to provide funding to the City is contingent
upon
00824643-1
Page 12 of 172
i. The inclusion of the funding in the CRA's approved Budget
for the given fiscal year, and
ii. The CRA's receipt of sufficient Tax Increment Revenue each
fiscal year to fund the Project up to $3,700,000 in any given
fiscal year after all preexisting funding obligations of the CRA
are met.
3. Obligations of the City.
a. The City shall ensure funds provided by the CRA are not used for any
purposes prohibited by § 163.370(3), Florida Statutes, or otherwise
prohibited by law.
b. The City shall ensure that the Project is designed and constructed in
compliance with the Plan.
c. The City shall be responsible for overseeing the Project and
contracting with EM, LLC and other entities as necessary to effectuate
the Project, but shall coordinate with the CRA concerning compliance
with the Plan.
d. Upon request from the CRA, or an authorized agent of the CRA,
including the Executive Director and the CRA Attorney, the City shall
provide all documents reasonably requested by the CRA or CRA's
agent concerning compliance with this Agreement, specifically
including any documentation concerning compliance with §
163.370(3), Florida Statutes.
4. Annual Budget Request.
00824643-1
Page 13 of 172
a. As a prerequisite for receiving funding in any given year pursuant to
this Agreement, no later than the last day of April every year through
the life of this Agreement, the City shall provide the CRA with an
Annual Budget Request.
b. Consistent with the terms of this Agreement, the Annual Budget
Request shall state the amount of funding the City is requesting the
CRA include for the Project in its budget for the subsequent fiscal
year.
c. The Annual Budget Request shall also include a summary of the
portions of the Project for which the funding is requested to ensure
CRA funds are not used for any purposes prohibited by § 163.370(3),
Florida Statutes, or any other law.
d. The first Annual Budget Request shall be due on April 30, 2018, for
funds to be include in the CRA's budget for the 2018/2019 fiscal year.
e. Upon receipt of the timely submitted Annual Budget Request, the
CRA shall include the funding amount requested in its proposed
Budget to be considered for approval by the CRA Board.
5. Reimbursement of Funds
a. The CRA shall disburse funding to the City annually for the
reimbursement of direct expenses related to the Project consistent with
the Plan and the terms of this Agreement.
b. The amount of funding disbursed to the City shall not exceed the
amount included for the Project in the CRA's approved Budget for the
given fiscal year.
00824643-1
Page 14 of 172
c. The City shall provide a written request for reimbursement
("Reimbursement Request")to the CRA no later than September 1st of
each year, which shall include the following information:
i. A summary of the status of the Project;
ii. A statement and evidence that the Project is in compliance with
the Plan.
iii. Copies of all invoices, receipts, and any other documentation
necessary to evidence the amount and purpose for each
payment made by the City for the Project for which the City is
seeking reimbursement that year.
d. Upon receipt of a Request for Reimbursement from the City meeting
the requirements of this Agreement, the CRA shall remit funding in
the amount requested, consistent with this Agreement, to the City
within thirty (30) days of receipt of the Request for Reimbursement.
6. Limits of CRA Obligations for the Project. The Parties agree that the
CRA shall be responsible to the City for providing reimbursement for eligible expenses
for the Project only, and shall not otherwise be responsible for effectuating the Project.
7. Indemnification. The City shall indemnify, save, and hold harmless the
CRA, its agents, and its employees from any liability, claim, demand, suit, loss, cost,
expense or damage which may be asserted, claimed, or recovered against or from the
CRA, its agents, or its employees, by reason of any property damages or personal injury,
including death, sustained by any person whomsoever, which damage is incidental to,
occurs as a result of, arises out of, or is otherwise related to the negligent or wrongful
conduct or the faulty equipment (including equipment installation and removal) of the
00824643-1
Page 15 of 172
Project. Nothing in this Agreement shall be deemed to affect the rights, privileges, and
sovereign immunities of the CRA or the City as set forth in Section 768.28, Florida
Statutes. This paragraph shall not be construed to require the City to indemnify the CRA
for its own negligence, or intentional acts of the CRA, its agents or employees. Each
party assumes the risk of personal injury and property damage attributable to the acts or
omissions of that party and its officers, employees and agents.
8. Term of the Agreement. This Agreement shall become valid and
commence upon execution by the last Party to this Agreement, and shall terminate on
September 30, 2044 ("Termination Date"). The CRA shall not be required to reimburse
the City for any requests submitted after the Termination Date. The term of the
Agreement may be extended one time for a period of one year and may only be extended
upon approval by the CRA Board and upon the appropriation of CRA funds for intended
purposes of this Agreement in the subsequent fiscal year's budget. Such extension is
only effective upon the execution of a written amendment signed by both Parties.
Nothing in this paragraph shall be construed so as to affect a Party's right to terminate
this Agreement in accordance with other provisions in this Agreement.
9. Records. The City and the CRA each shall maintain their own records
and documents associated with this Agreement in accordance with the requirements set
forth in Chapter 119, Florida Statutes. All such records shall be adequate to justify all
charges, expenses, and costs incurred in accordance with generally accepted accounting
principles. Each Party shall have access to the other Party's books, records and
documents as required in this Agreement for the purpose of inspection or audit during
normal business hours during the term of this Agreement and at least 1 year after the
termination of the Agreement.
00824643-1
Page 16 of 172
10. Filing. The City shall file this Interlocal Agreement pursuant to the
requirements of Section 163.01(11) of the Florida Statutes
11. Default. If either Party defaults by failing to perform or observe any of
the material terms and conditions of this Agreement for a period of ten (10) calendar days
after receipt of written notice of such default from the other Party, the Party giving notice
of default may terminate this Agreement through written notice to the other Party, and
may be entitled, but is not required, to seek specific performance of this Agreement on an
expedited basis, as the performance of the material terms and conditions contained herein
relate to the health, safety, and welfare of the residents of the City and Redevelopment
Area. Failure of any Party to exercise its right in the event of any default by the other
Party shall not constitute a waiver of such rights. No Party shall be deemed to have
waived any rights related to the other Party's failure to perform unless such waiver is in
writing and signed by both Parties. Such waiver shall be limited to the terms specifically
contained therein. This section shall be without prejudice to the rights of any Party to
seek a legal remedy for any breach of the other Party as may be available to it in law or
equity.
12. No Third Party Beneficiaries. Nothing in this Agreement shall be
deemed to create any rights in any third parties that are not signatories to this Agreement.
13. Compliance with Laws. The City and the CRA shall comply with all
statutes, laws, ordinances, rules, regulations and lawful orders of the United States of
America, State of Florida and of any other public authority which may be applicable.
14. Entire Agreement. This Agreement represents the entire and sole
agreement and understanding between the Parties concerning the subject matter
expressed herein. No terms herein may be altered, except in writing and then only if
00824643-1
Page 17 of 172
signed by all the Parties hereto. All prior and contemporaneous agreements,
understandings, communications, conditions or representations, of any kind or nature,
oral or written, concerning the subject matter expressed herein, are merged into this
Agreement and the terms of this Agreement supersede all such other agreements. No
extraneous information may be used to alter the terms of this Agreement.
15. Severability. If any part of this Agreement is found invalid or
unenforceable by any court, such invalidity or unenforceability shall not affect the other
parts of the Agreement if the rights and obligations of the parties contained herein are not
materially prejudiced and if the intentions of the parties can continue to be achieved. To
that end, this Agreement is declared severable.
16. Governing Law and Venue. The validity, construction and effect of this
Agreement shall be governed by the laws of the State of Florida. Any and all legal
actions necessary to enforce the terms of this Agreement shall be conducted in the
Fifteenth Judicial Circuit in and for Palm Beach County, Florida, or, if in federal court, in
the United States District Court for the Southern District of Florida, to which the Parties
expressly agree and submit.
17. No Discrimination. Parties shall not discriminate against any person on
the basis of race, color, religion, ancestry, national origin, age, sex, marital status, sexual
orientation or disability for any reason in its hiring or contracting practices associated
with this Agreement.
18. Notice. Whenever either Party desires to give notice to the other, such
notice must be in writing and sent by United States mail, return receipt requested, courier,
evidenced by a delivery receipt, or by overnight express delivery service, evidenced by a
delivery receipt, addressed to the Party for whom it is intended at the place last specified;
00824643-1
Page 18 of 172
and the place for giving of notice shall remain until it shall have been changed by written
notice in compliance with the provisions of this paragraph. For the present, the Parties
designate the following as the respective places for giving of notice.
CITY: Lori LaVerriere, City Manager
City of Boynton Beach
100 E. Boynton Beach Boulevard
Boynton Beach, FL 33435
CRA: Michael Simon, Executive Director
Boynton Beach CRA
710 N. Federal Highway
Boynton Beach, Florida 33435
Copies To: James A. Cherof
Goren, Cherof, Doody& Ezrol, P.A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale,Florida 33308
Tara Duhy, Esquire
Lewis, Longman& Walker, P.A.
515 North Flagler Drive, Suite 1500
West Palm Beach, Florida 33401
19. No Transfer. The Parties shall not, in whole or in part, subcontract,
assign, or otherwise transfer this Agreement or any rights, interests, or obligations
hereunder to any individual, group, agency, government, non-profit or for-profit
corporation, or other entity without first obtaining the written consent of the other Party.
20. Interpretation. This Agreement shall not be construed more strictly
against one Party than against the other merely by virtue of the fact that it may have been
prepared by counsel for one of the Parties.
00824643-1
Page 19 of 172
IN WITNESS WHEREOF, the City and the CRA hereto have executed this
Agreement as of the date set forth above.
ATTEST: CITY OF BOYNTON BEACH,
a Florida municipal corporation
By:
Judith Pyle, City Clerk Steven B. Grant, Mayor
Approved as to Form:
(SEAL)
Office of the City Attorney
Approved as to Form: BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
By:
Office of the CRA Attorney Steven B. Grant, Chair
00824643-1
Page 20 of 172
EXHIBIT
"A
Anticipated Town Square Funding
Fiscal Yr CRA
2018/19 3,700,000
2019/20 3,700,000
2020/21 3,700,000
2021/22 3,550,000
2022/23 3,550,000
2023/24 3,550,000
2024/25 3,550,000
2025/26 3,550,000
2026/27 2,800,000
2027/28 2,800,000
2028/29 2,800,000
2029/30 2,800,000
2030/31 2,800,000
2031/32 2,800,000
2032/33 2,800,000
2033/34 2,800,000
2034/35 2,800,000
2035/36 2,800,000
2036/37 2,800,000
2037/38 2,800,000
2038/39 2,800,000
2039/40 2,800,000
2040/41 2,800,000
2041/42 2,800,000
2042/43 2,800,000
2043/44 2,800,000
2044/45 0
79,250,000
00824643-1
Page 21 of 172
00824643-1
Page 22 of 172
1.D.
AGENDA ITEMS
3/13/2018
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
REQUESTED ACTION BY COMMISSION: PROPOSED RESOLUTION NO. R18-042-Amend the
adopted FY 2017-2018 General Fund Budget from$89,752,645 to $93,253,628, an increase of$3,500,983.
EXPLANATION OF REQUEST:
The General Fund FY 2017-18 Budget was adopted in September of 2017, via resolution R17-088 and
amended in December 2017 with resolution R17-120. The FY17/18 Amended Budget for the General Fund
(Fund 001) has to be adjusted to appropriate funds for the for the Town Square Redevelopment Phase 2
Services Agreement with E2L Real Estate Solutions, LLC..
Part of Phase 2 of the Town Square project is the issuance of permanent financing for the public building and
infrastructure. There is a need to continue design and development work prior to the issuance of the bonds,
the amendment is needed to provide appropriations for those additional costs in the unlikely event that the
bonds are not issued. When the bonds are issued the costs incurred for Phase I and additional design and
development costs in Phase 2 will be paid for by the bond proceeds.
The budget amendment to amend the General Fund requires City Commission approval.
• The General Fund (001)will be amended from$89,752,645 to $93,253,628 to appropriate an additional
$3,500,983 for Town Square Redevelopment Phase 2.
• The fund balance in the General Fund is approximately:
o $16,005,000
o ( 8,324,108) Emergency Reserve
o ( 2,383.523)Appropriated in FY17/18Amended Budget
* $ 5,297,369 Unassigned Fund Balance
HOW WILL THIS AFFECT CITY PROGRAMS OR SERVICES?
The City would continue to follow good and appropriate budgeting practices.
FISCAL IMPACT:
See Exhibit A for a summary of the fiscal impact.
ALTERNATIVES: Do not approve budget amendment.
STRATEGIC PLAN:
STRATEGIC PLAN APPLICATION:
CLIMATE ACTION:
Page 23 of 172
CLIMATE ACTION DISCUSSION:
Is this a grant? No
Grant Amount:
ATTACHMENTS:
Type Description
D Resolution Reso Budget Amendment E21- Phase 2
D Exhibit Exhibit A
Page 24 of 172
1 RESOLUTION R18-
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, AMENDING THE ADOPTED BUDGET FOR
5 VARIOUS FUND FOR THE FISCAL YEAR BEGINNING
6 OCTOBER 1, 2017, AND ENDING SEPTEMBER 30, 2018;
7 PROVIDING FOR SEVERABILITY, CONFLICTS, AND
8 AN EFFECTIVE DATE.
9
10 WHEREAS, a final budget was approved by the City Commission on September 19,
11 2017, for the fiscal year 2017-2018; and
12 WHEREAS, the City Manager is recommending amend the amount necessary to be
13 appropriated for fiscal year 2017-2018 for various funds (see Exhibit A).
14 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
15 THE CITY OF BOYNTON BEACH, FLORIDA:
16 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
17 being true and correct and are hereby made a specific part of this Resolution upon adoption
18 hereof.
19 Section 2. The City Commission of the Boynton Beach, Florida, hereby
20 amending the current appropriated FY 2017-2018 budget for the General Fund from
21 $89,752,645 to $93,253,628. A copy of such amendment and/or adjustment is attached
22 hereto as Exhibit "A" and the appropriations set out therein for the fiscal year beginning
23 October 1, 2017 and ending September 30, 2018, to maintain and carry on the government
24 of the City of Boynton Beach.
25 Section 3. That there is hereby appropriated revised amounts to various funds
26 (see Exhibit A) pursuant to the terms of the budget.
27 Section 4. If any clause, section or other part of this Resolution shall be held by
28 any court of competent jurisdiction to be unconstitutional or invalid, such unconstitutional
Page 25 of 172
29 or invalid part shall be considered as eliminated and shall in no way affect the validity of the
30 remaining portions of this Resolution.
31 Section 5. All Resolutions or parts of Resolutions in conflict herewith are hereby
32 repealed to the extent of such conflict.
33 Section 6. This Resolution shall become effective immediately upon passage.
34 PASSED AND ADOPTED this 13ffi day of March, 2018.
35 CITY OF BOYNTON BEACH, FLORIDA
36
37 YES NO
38
39 Mayor— Steven Grant
40
41 Vice Mayor—Justin Katz
42
43 Commissioner—Mack McCray
44
45 Commissioner—Christina Romelus
46
47 Commissioner—Joe Casello
48
49
50 VOTE
51 ATTEST:
52
53
54
55 Judith A. Pyle, CMC
56 City Clerk
57
58
59
60 (Corporate Seal)
Page 26 of 172
CITY OF BOYNTON BEACH Exhibit A
EXPENDITURE& REVENUE AMENDMENTS
BUDGET YEAR 2017-18
2017/18 2017/18
CURRENT Amendment AMENDED
GENERAL FUND DEPARTMENTS BUDGET Revenue Expenditures BUDGET
001-0000-369-22-00 CRA Reimbursement 0 0 0
001-0000-389-91-00 Fund Balance Appropriated 2,383,523 3,500,983 5,884,506
Adopted Fund Total Revenues 89,752,645 3,500,983 93,253,628
001-1211-512-34-55 Other Cont Svc/Town Sq Agreement 6,511,568 3,500,983 10,012,551
Adopted Fund Total Expenditures 89,752,645 3,500,983 93,253,628
S:\Finance\Town Square\Agenda 3-13-18\FY2017-18_Budget_Amendment_031318 Page 27 of 1 72o 1
1.E.
AGENDA ITEMS
3/13/2018
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
REQUESTED ACTION BY COMMISSION: PROPOSED RESOLUTION NO. R18-043-Authorize the
Mayor to sign the Town Square Redevelopment Phase 2 Services Agreement with E2L Real Estate Solutions,
LLC of Winter Park, FL.
EXPLANATION OF REQUEST:
On April 18, 2017 the Commission approved the selection of the top ranked qualifier as determined by the
Evalution Committee from the Part I I responses and oral presentations to the Request for Qualifications for
City of Boynton Beach Town Square Redevelopment, RFQ No. 004-1210-17/J MA; and authorized City Staff
to conduct negotiations for a Master Development Contract for Phase I of the project with E2L Real Estate
Solutions of Winter Park, FL, the top ranked firm according to Florida State Statute 287.55, Consultants'
Competitive Negotiation Act (CCNA).
Staff has negotiated a Phase I Services Agreement with E2L Real Estate Solutions, LLC for the Town
Square Redevelopment Project. Phase I Services generally consists of;
• Services to prepare final plans and specifications for construction of Municipal improvements;
• Confirming programmatic scope of each component of the municipal improvements;
• Preparation of guaranteed maximum fixed price for municipal improvements for the City to consider;
• Financing plan for the project for City to consider;
• Community outreach.
Phase 1 is completed and the City is being asked to continue into the construction phase of the project.
Part of the next phase of the project is for CFP to issue bonds for the construction and associated
infrastructure costs for the public buildings and open space. This is anticipated to be complete in 90- 120
days from date of authorization.
During this time work needs to continue on design and development costs for the projects, Phase 2
agreement will allow contractors to continue working until the permanent financing is issued.
Some additional refinement of this agreement may occur prior to adoption.
HOW WILL THIS AFFECT CITY PROGRAMS OR SERVICES?
This agreement will provide the continuation of design and development of the construction plans for Town
Square until CFP issues permanent financing for the project.
FISCAL IMPACT:
If at the end of Phase I the City decides not to proceed with E2L Real Estate Solutions, LLC as provided for
in the agreement, the City agrees to pay an amount not to exceed $4,365,423 (City has I LA with CRA for
$2,100,000 funding) so net cost to the City would be $2,265,423.
ALTERNATIVES: Do not approve agreement with E2L Real Estate Solutions, LLC.
Page 28 of 172
STRATEGIC PLAN:
STRATEGIC PLAN APPLICATION:
CLIMATE ACTION: No
CLIMATE ACTION DISCUSSION:
Is this a grant? No
Grant Amount:
ATTACHMENTS:
Type Description
D Resolution eso-Town Square Phase 2
D Agreement Phase 2 Agreement E21-
Page 29 of 172
I RESOLUTION NO. R18-
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, APPROVING THE PHASE 2 SERVICES
5 AGREEMENT WITH E2L REAL ESTATE SOLUTIONS,
6 LLC FOR THE DEVELOPMENT OF THE TOWN
7 SQUARE PROPERTY; AUTHORIZING THE MAYOR
8 TO SIGN THE AGREEMENT; AND PROVIDING FOR
9 AN EFFECTIVE DATE.
10
11 WHEREAS, the City of Boynton Beach (the "City") issued Request for
12 Qualifications for the City of Boynton Beach Town Square Redevelopment RFQ No. 004-
13 1210-17/JMA (the "RFQ") for the planning, developing, financing, and completing of certain
14 public improvements and private improvements for redevelopment of an approximately 16
15 acre site described as the Boynton Beach Town Square Project(the"Project"); and
16 WHEREAS, E2L Real Estate Solutions, LLC, a Florida limited liability company,
17 (the "Company") submitted a response to the RFQ on March 9, 2017, and was selected as the
18 successful proposer; and
19 WHEREAS, the Company, has completed the Phase 1 Services Agreement dated
20 June 21, 2017, and now needs to enter into a Phase 2 services agreement with the City, which
21 is attached hereto as Exhibit "A", (the "Agreement") shall provide the specific Phase 2
22 Services as identified in the Agreement with respect to the planning, developing, financing,
23 and completing of the Project; and
24 WHEREAS, the public improvements components to be developed pursuant to the
25 Agreement include the following: a new City Hall, a new Police Station, a new Fire Station
26 #1, a new public parking ramp, public park and open space improvements, and infrastructure
27 improvements throughout the Project(together, the"Municipal Improvements"; and
28 WHEREAS,the RFQ included a request to provide renovations and improvements to
29 a historic High School Building located on East Ocean Avenue east of Seacrest Boulevard in
t00187240.1 306-9001821)
Page 30 of 172
30 the City (the"High School Improvements"); and
31 WHEREAS, the RFQ included a request to provide other privately owned
32 commercial and residential developments to be constructed on land in the Project currently
33 owned or controlled by the City (the "Private Improvements"); and
34 WHEREAS, as part of the Agreement, the City Commission agrees, by separate
35 resolution, to budget and appropriate as a separate budgetary line item, funds sufficient to
36 pay the Company for the Phase 2 Services, which include the development of plans for the
37 Municipal Improvements, High School Improvements, Private Improvements, as well as
38 stabilization of the High School, as provided in the Agreement; and
39 WHEREAS, City Staff has reviewed the Company's response and the Agreement,
40 and recommends that the Commission approve the service agreement.
41 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
42 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
43 Section 1. The foregoing "WHEREAS" clauses are true and correct and hereby
44 ratified and confirmed by the City Commission.
45 Section 2. The City Commission hereby approves the Town Square
46 Redevelopment Phase 1 Services Agreement with E2L Real Estate Solutions, LLC (the
47 "Agreement").
48 Section 3. The Mayor is authorized to sign the Agreement with E2L Real Estate
49 Solutions, LLC, and to take any and all actions necessary to implement the Agreement, a
50 copy of which is attached hereto as Exhibit"A".
51 Section 4. That this Resolution will become effective immediately upon passage.
52
t00187240.1 306-9001821}
Page 31 of 172
53 PASSED AND ADOPTED this day of , 2018.
54 CITY OF BOYNTON BEACH, FLORIDA
55 YES NO
56
57 Mayor— Steven B. Grant
58
59 Vice Mayor—Justin Katz
60
61 Commissioner—Mack McCray
62
63 Commissioner—Christina L. Romelus
64
65 Commissioner—Joe Casello
66
67
68
69 VOTE
7o ATTEST:
71
72
73
74 Judith A. Pyle, CMC
75 City Clerk
76
77 (Corporate Seal)
t00187240.1 306-9001821}
Page 32 of 172
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TOWN SQUARE REDEVELOPMENT
PHASE 2 SERVICES AGREEMENT
THIS TOWN SQUARE REDEVELOPMENT PHASE 2 SERVICES
AGREEMENT (this "Agreement"), made effective as of the day of March 2018, by and
between the City of Boynton Beach, Florida (hereinafter referred to as the "City"), and having its
principal office at 100 East Boynton Beach Boulevard, Boynton Beach, Florida 33425-0310, and
E2L Real Estate Solutions, LLC, a Florida Limited Liability Company (the "Company"), having its
principal office at 1400 W. Fairbanks Ave.,Winter Park,Florida 32789.
WITNESSETH:
WHEREAS, the City is a body politic and corporate under the laws of the State of
Florida; and
WHEREAS, the Company leads a development team formed to undertake, in partnership
with the City, certain public improvements and private improvements to redevelop an
approximately sixteen (16) acre site described as the Boynton Beach Town Square Project plus
an approximately four(4) acre site for a new police station (collectively, the "Project"); and
WHEREAS, part of the public improvements in the Project include renovations and
improvements to a historic High School Building located on East Ocean Avenue east of Seacrest
Boulevard in the City (the "High School Improvements") and the construction of a district
energy plant(the "DEP Improvements") all as more specifically described on Exhibit A, which
is attached hereto and incorporated herein by reference; and
WHEREAS, REG Architects ("REG") is the architect and designer of the High School
Improvements and Straticon, Inc. ("Straticon") is the contractor for the High School
Improvements; and
WHEREAS, Baker Barios Architects ("Baker") is the architect and designer of the DEP
Improvements and The Haskell Company ("Haskell") is the contractor and Sims Wilkerson
Cartier Engineering, Inc. ("Sims")is the engineer for the DEP Improvements; and
WHEREAS, part of the public improvements in the Project include a new City Hall,
Library improvements, a new Police Station, a new Fire Station #1, a joint use public private
parking garage to be designed and built by 7KM BTS South, LLC or an affiliate thereof, public
park and open space improvements and infrastructure improvements throughout the Project
(collectively, the "Municipal Improvements," and individually each constituting a
"Component" of the Municipal Improvements); and
WHEREAS, Kimley Horn Engineers ("Kimley Horn") is the civil engineer for the
infrastructure improvements; Haskell is the contractor for the City Hall, Library, infrastructure
1
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and public park improvements; Baker is the architect and designer of the City Hall, Library and
public park improvements; H. J. High Construction ("HJ High") is the contractor for the Police
Station and the Fire Station; and ADG Architects ("ADG") is the architect and designer of the
Police Station and the Fire Station; and
WHEREAS, REG, Straticon, Baker, Haskell, Kimley Horn, HJ High, ADG and Sims are
collectively referred to in this Agreement as the "Development Team;" and
WHEREAS, the High School Improvements, the DEP Improvements and the Municipal
Improvements are collectively referred to herein as the "Improvements;" and
WHEREAS, on June 21, 2017, the City Commission and the Company entered into that
certain Town Square Redevelopment Phase 1 Services Agreement, as amended pursuant to that
First Amendment dated August 21, 2017 and that Second Amendment dated December 14, 2017
(collectively, the "Phase 1 Agreement") setting forth the parties' obligations relative to the
performance of pre-development services relating to the Project, including, but not limited to, the
development of preliminary design proposals, preliminary project scheduling, the development
of guaranteed maximum fixed priced construction contracts, and the coordination of the
financing of the Project(the "Phase 1 Services"); and
WHEREAS, Dougherty Funding LLC, a Delaware limited liability company (the
"Lender") has loaned the Company $2,875,000 (the "Loan") for the purposes of financing the
Phase 1 Services and related costs and expenses, pursuant to which the Company assigned to the
Lender its rights in and under the Phase 1 Agreement; and
WHEREAS, the City is currently paying the monthly interest on the Loan, and has
agreed to repay the Loan if the Project doesn't move forward to the next phase; and
WHEREAS, the Company has completed the Phase 1 Services and provided the City
Commission with the deliverables required under the Phase 1 Agreement, and the City has
acknowledged its receipt and approval of the deliverables; and
WHEREAS, the City and the Development Team have agreed that the design and
construction of the DEP Improvements shall be completed for the guaranteed maximum price of
$[ ], all in accordance with that certain Design Build Contract dated as of [ ] (a
"Design Build Contract"), between the Company and Haskell/Sims (a "Design-Builder"); and
WHEREAS, the City and the Development Team have agreed that the design and
construction of the High School Improvements shall be completed for the guaranteed maximum
price of$[ ], all in accordance with that certain Design Build Contract dated as of [ ]
(a "Design Build Contract"), between the Company and Straticon (a "Design-Builder"); and
WHEREAS, the City and the Development Team have agreed that the design and
construction of each Component of the Municipal Improvements shall be completed for a
guaranteed maximum price, all in accordance with those certain contracts (each a "Design Build
Contract," and together with each other Design Build Contract, the "Design Build Contracts")
between the Company and certain members of the Development Team (each a "Design-
2
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Builder," and together with each other Design-Builder, the "Design-Builders"), identified on
Exhibit B, which is attached hereto and incorporated herein by reference; and
WHEREAS, the City desires the Company to continue to oversee and manage the
completion of the design, permitting and construction of the Improvements, all as more
specifically set forth in Article III of this Agreement(the "Phase 2 Services"); and
WHEREAS, subject to the terms and conditions hereof, the Company desires to
perform the Phase 2 Services; and
WHEREAS, the City understands that the Company will perform no design or
construction services, and that the parties intend for the Company to contract directly and
separately with: (i) the Design-Builders who have been, or will, be engaged to design and
construct the Improvements, and (ii) such other contractors or consultants who may be engaged
to perform discrete elements of design or construction work on the Improvements to the extent
not covered by the Design-Build Contracts (collectively, the "Construction Contracts"); and
WHEREAS, the Company desires to borrow from the Lender up to an additional
$3,500,000 for the purpose of financing the Phase 2 Services relating solely to the Municipal
Improvements, including certain costs, fees and expenses relating thereto (the "Phase 2 Loan,"
and together with the Loan, the "Project Loans"); and
WHEREAS, the City agrees to pay the monthly interest on the Project Loans and
guarantee the repayment of the outstanding principal under the Project Loans in accordance with
the terms of this Agreement; and
WHEREAS, in addition to the Phase 2 Services, the City is working with Atwater
Boynton Beach Project LLC, Florida limited liability company ("Atwater"), to cause the
issuance of new market tax credits in order to provide funding for the High School
Improvements (the "New Market Tax Credits"); and
WHEREAS, the City is also working with CFP Boynton Beach Town Square, LLC, a
Florida limited liability company to cause the issuance of the Capital Improvement Revenue
Bonds (City of Boynton Beach Municipal Improvements Project), Series 2017, in order to
provide permanent financing for the costs associated with the construction and completion of the
public improvements, to pay off the Project Loans, and to pay certain costs of issuance in
connection with the permanent financing (the "Permanent Financing"); and
WHEREAS, the City and the Company each acknowledge and agree that the guaranteed
maximum price amount set forth in the Design Build Contracts (the "GMPs") shall not change
prior to the earlier of. (a) June 15, 2018 or(b) closing on the Permanent financing; and
WHEREAS, the City and the Company each acknowledge that the final scope of work
and associated design shall not exceed the GMPs set forth in the Phase 1 Agreement
deliverables.
NOW, THEREFORE, in consideration of the mutual covenants and obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows:
3
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ARTICLE I
SCOPE OF SERVICES
Section I.I. Services Rendered by the Company. The Company agrees to perform (or,to
the extent the services are to be provided by the Development Team to cause the appropriate
member of the Development Team to perform)the Phase 2 Services. The Company shall cooperate
with the City and any other attorneys, consultants or contractors providing services to the City as
needed in the performance of the Phase 2 Services. The Company may recommend replacement of
a current member of the Development Team with another professional service provider and/or
consultant as determined in the Company's sole discretion; provided, however, the Company may
not do so without the prior approval of the City. The City will not contract with or engage any
member of the Development Team for any professional services related to or in connection with the
Project without the prior approval of the Company.
Section 1.2. Standard of Care. The Company hereby represents and warrants that each person
providing Phase 2 Services, including the Company and each member of the Development Team, has
the requisite skills and expertise necessary to perform the Phase 2 Services. Accordingly, the Company
and each such person shall be obligated to perform the Phase 2 Services with the same degree of, care,
skill and diligence as would be ordinarily exercised by a competent practitioner of the same profession
in which such person is engaged in providing similar services in major United States metropolitan areas
under the same or similar circumstances. If any member of the Development Team fails to perform to
the City's reasonable expectations during the term of this Agreement, the City shall have the right to
request that the Company replace that Development Team member with another Development Team
member having equal or better requisite skills and expertise than the member being replaced, and the
Company shall comply with the City's request. The City shall be liable for any and all costs, expenses
and fees associated with, related to or as a result the City's request to replace any Development Team
member in accordance with this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the City. The City represents and
warrants that:
(a) The City is a municipal corporation of the State of Florida, duly created and
validly existing under the laws of the State of Florida and has all requisite power and authority to
enter into the transactions contemplated by this Agreement, and to carry out its obligations
hereunder.
(b) The City is not in default under any provisions of applicable law material to the
performance of its obligations under this Agreement.
(c) The City has duly authorized the execution and delivery of this Agreement, and
assuming the due authorization, execution and delivery by the other parties hereto and thereto,
this Agreement constitutes a valid and legally binding obligation of the City, enforceable in
accordance with its respective terms, except to the extent that the enforceability thereof may be
limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other similar
4
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laws affecting creditors' rights generally, or by the exercise of judicial discretion in accordance
with general principles of equity.
(d) The authorization, execution and delivery of this Agreement, and the compliance
by the City with the provisions hereof will not conflict with or constitute a material breach of, or
default under, any existing law, court or administrative regulation, decree, order or any provision
of the Constitution or laws of the State of Florida relating to the City or its affairs, or any
ordinance, resolution, agreement, mortgage, lease or other instrument to which the City is subject
or by which it is bound.
(e) There is no action, suit, proceeding or investigation at law or in equity before or
by any court, public board or body pending or, to the best knowledge of the City, threatened
against or affecting the City, wherein an unfavorable decision, ruling or finding would materially
adversely affect the transactions contemplated hereby, or which, in any way, would materially
adversely affect the validity of this Agreement, or any agreement or instrument to which the City
is a party and which is used or contemplated for use in the consummation of the transactions
contemplated hereby.
Section 2.2. Representations and Warranties of the Company. The Company
represents and warrants that:
(a) The Company, through its duly authorized representative, has the full power and
authority to enter into and execute this Agreement and, as such, this Agreement is legally binding upon
and enforceable against the Company in accordance with its terms;
(b) The Company is not under any obligation to any other parry that would be inconsistent
with or in conflict with this Agreement or that would prevent,limit or impair in any way its performance of
any obligations hereunder,
(c) The Company and each person selected by the Company to perform the Phase 2 Services
in connection with the Project has the requisite expertise, qualifications, staff, materials and equipment in
place and available to enable it to fully perform the Phase 2 Services and the Company and such third
persons, along with their respective employees, as required, and all sub-contractors, if any and as required,
possess all necessary permits, licenses, consents, registrations and/or certifications required under federal,
state and/or local law to perform the Phase 2 Services; and
(d) The Company has read and fully understands the terms, covenants and conditions set forth
in this Agreement and is executing the same willingly and voluntarily of its own volition.
Section 2.3. Reliance on Representations, Warranties and Covenants. All representations,
warranties, covenants and agreements made in this Agreement are intended to be material and shall be
conclusively deemed to have been relied upon by the receiving parry.
5
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ARTICLE III
SCOPE AND FUNDING OF PHASE 2 SERVICES
Section 3.1. General. The Company agrees to provide the Phase 2 Services as
contained in this Agreement.
Section 3.2. Phase 2 Services. The Phase 2 Services to be performed hereunder will be
rendered and paid for as provided herein. The execution of this Agreement constitutes the City's
authorization for the Company to perform the Phase 2 Services. The Company is not authorized to
proceed with any additional services or work unless and until it receives a written notice to proceed from
the City. The Phase 2 Services include oversight and management, for the benefit and on behalf of the
City, of the services required by the Design-Build Contracts,including the following:
(a) Consult with the City and act as the City's representative during design and/or construction
phases of the Improvements;
(b) Participate in conferences between the City and Design-Builders;
(c) Review submittals prepared by or for Design-Builders including drawings, specifications,
shop drawings and samples and other submittals required by the Construction Contracts for acceptability
and conformance with the Construction Contracts;
(d) Visit the Improvements' sites during construction for general inspection and observation,
meetings with the parties, and to determine in general if the work is proceeding in accordance with the
Construction Contracts;
(e) Assist the City in issuing clarifications and interpretations of the Construction Contracts;
(f) Advise the City on claims between the City and Design-Builders;
(g) Review and approve requests for payment pursuant to the Construction Contracts; and
(h) Accompany the City with pre-occupancy and/or final inspections of the completed work.
The Phase 2 Services shall be considered complete when the Improvements have been finally
accepted under the Design-Build Contracts and final payment authorized to the Design-Builders.
Section 3.3. Fees; Payment of Expenses.
(a) Phase 2 Fee. The Company will perform the Phase 2 Services for the amount as
more specifically described on Exhibit C, which is attached hereto and incorporated herein by
reference (the "Phase 2 Fee"). The Phase 2 Fee will be full compensation for all Phase 2 Services
performed by the Company. The Phase 2 Fee will be earned and payable by the City, including any
third party expenses incurred by the Company for the benefit of the Project, to the Company monthly
on a pro rata basis as described on Exhibit C. The total of the Phase 2 Fee shall not exceed the
amount described herein, unless the City requests additional services and approves such additional
services in writing. The City acknowledges and agrees that the Phase 2 Loan will be issued to finance
the Phase 2 Fee.
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(b) Phase 2 Loan. The City acknowledges and agrees that the Company shall coordinate
with the Lender to facilitate the funding of the Phase 2 Loan in order to provide the interim financing
for the costs of the Phase 2 Services, including the Phase 2 Fee, to pay certain professional fees and
costs incurred in connection with and for the benefit of the Project, and to pay certain costs
associated with the Phase 2 Loan (collectively, the "Phase 2 Costs"). Notwithstanding anything
contained herein to the contrary, the Company shall not proceed with the Phase 2 Services until
the date the Phase 2 Loan is closed.
(c) Payment of Invoices for Services. The Company shall review any and all
invoices for Phase 2 Costs. The Company shall be responsible for determining that any such
invoiced services have been duly performed and invoiced in accordance with the agreements for
the provision of such third party Phase 2 Costs.
(d) Project Loans. The City acknowledges and agrees that it is responsible for the
payment of, and it hereby agrees to pay to such person or entity as directed by the Company,
without delay: (i) all monthly interest costs when and as due and payable in accordance with the
terms of the Project Loans; (ii) all costs and fees incurred by the Company in connection with
obtaining and maintaining the Project Loans; and (iii) all outstanding principal and accrued and
unpaid interest under the Project Loans no later than July 2, 2018.
Section 3.4. Proof of Funding for the Improvements. The City acknowledges and
agrees that proof of its ability to fully fund all costs associated with the design and
construction of the Improvements must be provided to the Company's reasonable satisfaction
("Proof of Funding") before the Company can perform any Phase 2 Services. Proof of
Funding shall include, without limitation, the following:
(a) High School Improvements. The City shall, with the help of Atwater, obtain
and close on the New Market Tax Credits within forty-five (45) days after March 13, 2018.
(b) Phase 2 Loan. On or before March 13, 2018: (i) the City shall pass a
resolution providing for the City to use its best efforts to assist the Company in obtaining the
Phase 2 Loan; and (ii) the City and the Lender shall provide the Company with drafts of the
material agreements relating to the Phase 2 Loan.
(c) DEP Improvements. Within forty-five (45) days after March 13, 2018, the
City shall: (i) pass a resolution providing for the City, or an affiliate of the City, to undertake
the necessary steps to obtain the funds to pay the full amount of the GMP for the DEP
Improvements; and (ii) obtain the written consent or approval of any third party required in
order to obtain such funding. Completion of the scope of work for the DEP Improvements is
subject to finalization of the site location and establishment of the public district which must
be accomplished within the overall proposed schedule. Notwithstanding anything contained
herein to the contrary, if the DEP Improvements are not completed, the Company's fees for
services provided in connection with the Project, including the Phase 2 Fee, shall not be less
than the current agreed upon amount; provided, however, if completion of the DEP
Improvements is delayed for any reason beyond the current schedule, such fees shall be
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increased, pro-rata, to adequately reflect any such delay in completion beyond the current
schedule.
ARTICLE IV
TERM
Section 4.1. Term. This Agreement shall commence on the date hereof, and shall
continue until the earlier of: (a) the completion of the Phase 2 Services and the payment of the
Phase 2 Fee; or (b) the termination of this Agreement by either party as provided herein or by
law.
ARTICLE V
NON-DISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY
Section 5.1. Company Shall Not Discriminate. In the performance of this Agreement,
the Company agrees not to discriminate on the basis, whether in fact or perception, of a person's
race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity,
domestic partner status, marital status, physical or mental disability or AIDS- or HIV-status
against:
(a) Any employee of the City or any employee working with the Company in any of
the Company's operations involving the Project; or
(b) Any person seeking accommodations, advantages, facilities, privileges, services,
or membership in all business, social, or other establishments or organizations operated by the
Company. The Company agrees to comply with and abide by all applicable federal, state and
local laws relating to non-discrimination, including, without limitation, Title VI of the Civil
Rights Act of 1964, Section V of the Rehabilitation Act of 1973 and the Americans with
Disabilities Act of 1990.
Section 5.2. Equal Employment Opportunity. The Company further agrees not to
discriminate on the basis, whether in fact or perception, of a person's race, color, creed, religion,
national origin, ancestry, age, sex, sexual orientation, gender identity, domestic partner status,
marital status, physical' or mental disability or AIDS- or HIV-status against any applicant for
employment with the Company. Further, the Company agrees to take affirmative action to ensure
that that the applicants are considered for employment and that employees are treated during
employment without unlawful regard to such person's race, color, creed, religion, national origin,
ancestry, age, sex, sexual orientation, gender identity, domestic partner status, marital status,
physical or mental disability or AIDS- or HIV-status. Such action shall include, without limitation,
the following areas: employment, promotion, demotion, transfer or layoff, recruitment or
recruitment compensation; and selection for training. The Company agrees to post in conspicuous
places, available to employees and applicants for employment, notices setting forth the provisions of
this non-discrimination clause. Further, the Company agrees all solicitations or advertisements for
employees placed by or on behalf of the Company shall state that all qualified applicants will
receive consideration for employment without regard to race, creed, color, sex or national origin.
ARTICLE VI
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INDEMNIFICATION
Section 6.1. Duty to Indemnify the City Against Loss. The Company agrees to protect,
defend, indemnify and hold harmless the City, its elected officials and employees (collectively, the
"Indemnified Parties") from and against all claims, actions, liabilities, losses (including, without
limitation, economic losses) and costs, arising out of or related to a breach or default by the Company
of its obligations under this Agreement. The indemnification shall include any reasonable attorney's
fees and paralegal expenses, and court costs incurred at both the trial and appellate levels.
Section 6.2. Limit on Duty to Indemnify. Notwithstanding anything to the contrary herein,the
Company shall not be required to indemnify the Indemnified Parties to the extent of their fault for any
loss that results from the negligence or breach of contract of any of the Indemnified Parties.
Section 6.3. City's Duty to Indemnify and Hold Harmless the Company. The City agrees to
protect, defend, indemnify and hold harmless the Company, its managers, officers, employees,
members and affiliates (collectively, the "Company Indemnified Parties") from and against all
claims, actions, liabilities, losses (including, without limitation, economic losses) and costs incurred
by any of the Company Indemnified Parties as a result of, arising out of or related to: (a) a breach or
default by the City of its obligations under this Agreement; (b) non-payment by the City of any
interest, principal and any other fees, costs and expenses due and payable under the Project Loans; (c)
any Design Build Contract; or (d) the City's negligence or willful misconduct. The City's
indemnification obligations under this Agreement shall include any reasonable attorney's fees and
paralegal expenses, and court costs incurred at both the trial and appellate levels.
Section 6.4. Limit on Duty to Indemnify. Notwithstanding anything to the contrary herein,the
City shall not be required to indemnify the Company Indemnified Parties to the extent of their fault for
any loss that results from the negligence or breach of contract of any of the Company Indemnified
Parties.
Section 6.5. City Insurance Coverages. In connection with the City's obligations under this
Agreement, including this Article VI, the City shall maintain commercially reasonable insurance
coverage on the Project, including errors and omissions and general liability insurance. The City shall
also list the Company as an additional insured on each insurance policy, and provide the Company with
a Certificate of Insurance to that effect.
Section 6.6. Survival. The provisions of this Article VI will survive the termination of this
Agreement until the earlier of completion of the Project or three(3)years.
ARTICLE VH
INDEPENDENT CONTRACTOR STATUS
Section 7.1 Independent Company Status. The Company shall not be deemed an
employee of the City. As such, the Company agrees that it shall not hold itself or any of its
employees, subcontractors or agents to be an employee of the City. Further, the Company
acknowledges and agrees that, as an independent contractor, neither the Company nor any of its
employees shall be entitled to receive any benefits that employees of the City are entitled to receive,
including, without limitation, workers' compensation coverage, unemployment compensation
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coverage, medical insurance, life insurance, paid vacations, paid holidays, sick leave, pension, or
Social Security for any services rendered to the City under this Agreement.
Section 7.2. No Withholding; Form 1099 Reporting. The Company understands and
agrees that:
(a) The City will not withhold on behalf of the Company any sums for any federal, state
or local income tax, unemployment insurance, social security, or any other withholding pursuant to
any law or requirement of any governmental body, and that the City will not make available to the
Company any of the benefits afforded to employees of the City;
(b) All of such withholdings and benefits, if applicable, are the sole responsibility of
the Company; and
(c) The Company will indemnify and hold the City harmless from any and all loss or
liability arising with respect to any such withholdings and benefits. The parties agree that if the
Internal Revenue Service questions or challenges the Company's independent contractor status,
both the Company and the City shall have the right to participate in any discussion or negotiation
with the Internal Revenue Service. The Company acknowledges that all compensation paid to the
Company pursuant to this Agreement will be reported annually by the City to the Internal
Revenue Service on Form 1099.
ARTICLE VII'
GOVERNING LAW; VENUE
This Agreement shall be construed and enforced in accordance with the laws of the State
of Florida, excepting its conflict of law provisions. Venue for any litigation filed to enforce any
right, obligation, or responsibility of either party under this Agreement shall be filed in the
appropriate state or federal court located in Palm Beach County, Florida.
ARTICLE IX
RETENTION,ACCESS AND OWNERSHIP OF RECORDS
Section 9.1. Florida Public Records Law. Pursuant Section 119.07, Florida Statutes,
as may be amended from time to time, the Company shall keep and maintain public records that
ordinarily and necessarily would be required by the City in order to perform the Company's
obligations pursuant to the terms of this Agreement, including all information provided by the
Company in connection with the Phase 1 Agreement (collectively, the "Project Records"). The
Company agrees to comply with the following requirements:
(a) Upon request from the City's custodian of public records, provide the City with a
copy of the Project Records or allow the Project Records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes
or as otherwise provided by law.
(b) Ensure that the Project Records that are exempt or confidential and exempt from
public records disclosure requirements (the "Exempt Records") are not disclosed except as
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authorized by law for the duration of this Agreement term and following completion of this
Agreement if the Company does not transfer the Project Records to the City.
(c) Upon completion of this Agreement, transfer, at no cost, to the City all Project
Records in possession of the Company or keep and maintain the Project Records required by the
City to perform the services required pursuant to this Agreement. If the Company transfers all
Project Records to the City upon completion of this Agreement, the Company shall destroy any
duplicate Exempt Records. Notwithstanding the foregoing, the Company shall be permitted to
retain: (i) one (1) copy of the Exempt Records in the Company's required by law, regulation or
compliance policies to be retained; and (ii) any copies stored pursuant to an electronic back-up
system in accordance with records management policies. If the Company keeps and maintains
Project Records upon completion of this Agreement, the Company shall meet all applicable
requirements for retaining public records. All Project Records stored electronically must be
provided to the City, upon request from the City's custodian of public records, in a format that is
compatible with the information technology systems of the City.
(d) Failure of the Company to abide by the terms of this provision shall be deemed a
material breach of this Agreement. This provision shall survive any termination or expiration of
this Agreement.
IF THE COMPANY HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER
119, FLORIDA STATUTES, TO THE COMPANY'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS AGREEMENT, THE COMPANY, ITS OFFICERS,
REPRESENTATIVES, AND EMPLOYEES MUST CONTACT THE CITY OF BOYNTON
BEACH'S RECORDS CUSTODIAN AT 561-629-8585, PYLEjkBBFL.US, OR 100 EAST
BOYNTON BEACH BOULEVARD,BOYNTON BEACH,FL 33425.
Section 9.2. Right to Audit; Access. At any time during normal business hours, upon
receipt of reasonable notice and as often as the City may deem necessary, the Company shall make
all data, records, reports and all other materials relating to this Agreement available to the City for
examination and copying. In addition, the Company shall permit the City to audit, and shall
cooperate fully in any such audit of, all invoices, materials, payrolls, work papers, personnel records
and other data necessary to enable the City to verify the accuracy of the Company's invoices for
payment for the performance of the Phase 2 Services.
Section 9.3. Ownership of Project Records, Confidential Information. Notwithstanding
anything to the contrary set forth in this Agreement, the City acknowledges and agrees that the
Project Records, including Work Product and the Exempt Records, and the information contained
therein, is confidential and proprietary information belonging exclusively to the Company
("Confidential Information"). As such, the City and its commissioners, other elected officials, staff,
employees and consultants shall not use or disclose, directly or indirectly, the Confidential
Information in any way or to anyone, or permit anyone access to the Confidential Information, other
than directly in connection with the Project during the term of this Agreement, without the prior
written consent of the Company. "Work Product" means any and all plans, designs, project
drawings, notes, tables, graphs, reports, files, documents, records, disks, or other such material,
regardless of form and whether finished or unfinished, of the Company or members of the
Development Team.
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ARTICLE X
DEFAULT
Section 10.1 Default. If any parry (the "Defaulting Party") materially breaches or defaults
on any of its obligations under this Agreement, the non-defaulting parry may give notice that remedial
action must be taken by the Defaulting Party within thirty (30) days of the notice. The Defaulting
Parry shall correct such breach or default within thirty (30) days after such notice; provided, however
if(a) the default is one which cannot with due diligence be remedied by the Defaulting Parry within
thirty (30) days, and (b) the Defaulting Party proceeds as promptly as reasonably possible after such
notice with all due diligence to remedy such default, the period after such notice within which to
remedy such default shall be extended for such period as may be necessary to remedy the same with
due diligence. If such action is not taken, the non-defaulting parry may, in pursue all remedies
available at law or in equity, including, but not limited to, specific performance and/or recovery of
damages.
ARTICLE XI
INSURANCE
During the Term of this Agreement, the Company shall, at all times, maintain: (a) adequate
worker's compensation and unemployment insurance coverage for its employees, if applicable, in
accordance with state law; and(b) comprehensive general liability insurance in amounts not less than
$1,000,000 per occurrence. Company's general liability insurance shall name the City as an
additional insured and shall provide that any such policy will not be subject to cancellation or change
except after at least thirty (30) days' prior written notice to the City. The policies or duly executed
certificates for the same, together with satisfactory evidence of the payment of the premium thereon,
shall be provided to the City, and upon renewals of such policies, not less than thirty (30) days prior
to the expiration of the term of such policies.
ARTICLE XII
NOTICE
Section 12.1. Notice Addresses. Any notice, demand, communication or request
required or permitted hereunder shall be in writing and delivered in person or by certified mail,
return receipt requested as follows:
(a) in the case of the City, addressed to or delivered personally to the City of
Boynton Beach, at 100 East Boynton Beach Boulevard, Boynton Beach, Florida 33425-0310, Attention:
City Manager with a copy to James A. Cherof, City Attorney, 100 East Boynton. Beach Boulevard,
Boynton Beach,Florida 33425-0310.; and
(b) in the case of the Company, addressed to or delivered personally to the
Company at E2L Real Estate Solutions,LLC, 1400 W.Fairbanks Ave., Suite 201,Winter Park,Florida
3.2789., Attention Mark Hefferin, Manager; with a copy to Jamie Campbell, Esq., 180 Park Avenue
North, Suite 2A,Winter Park,Florida 32789.
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Section 12.2. Notice Effective Dates. Notices shall be effective when received by each of the
above-referenced individuals at the addresses specified above. Each party shall be responsible for
notifying the other in writing of any changes in the respective addresses set forth above.
Section 12.3. Routine Communications. Nothing contained in this Article shall be construed to
restrict the transmission of routine communications between representatives of the City and the Company.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1. No Assignment Without Consent. This Agreement is personal to each of the
parties hereto, and neither party may assign or delegate any rights or obligations hereunder without first
obtaining the written consent of the other party.
Section 13.2. Conflict of Interest. Company agrees to decline any offer of work,
whether as an independent contractor or employee, if such work would: affect Company's
independent professional judgment with respect to its performance of the Services; or In any way
interfere with Company's ability to discharge any of its obligations under this Agreement. The initial
determination of whether any offer of work would present such a conflict of interest shall rest with
Company. However, Company shall be obligated to notify the City and provide full disclosure as to any
possible adverse effects of such work as it relates to Company's independent professional judgment or the
discharge of any of its obligations under this Agreement. Final decision as to whether any such work
proposes a prohibited conflict of interest shall rest with the City.
Section 13.3. Compliance with Laws; Duty to Notify of Wrongdoing; Cooperation
with Investigations. In performing the Services, Company shall, at its own expense, comply with
all applicable federal, state and local laws, regulations and codes. Company shall be obligated to
immediately notify the City of any notice or allegation of wrongdoing or of any material third-party
complaint relating to this Agreement. Upon request of the City, the Company shall fully cooperate
in any investigation by furnishing any documents, records or other testimonial evidence pertinent to
such investigation.
Section 13.4. Nonwaiver. The failure of either party to insist upon strict compliance with any
provision of this Agreement,to enforce any right or to seek any remedy upon discovery of any default
or breach of the other party at such time as the initial discovery of the existence of such
noncompliance, right, default or breach shall not affect, nor constitute a waiver of, any party's right to
insist upon such compliance, exercise such right or seek such remedy with respect to that default or
breach or any prior, contemporaneous or subsequent default or breach.
Section 13.5. Severability. The parties hereto intend all provisions of this Agreement to be
enforced to the fullest extent permitted by law. Accordingly, if a court of competent jurisdiction finds
any provision to be unenforceable as written, the parties intend and desire that the court will reform
the provision so that it is enforceable to the maximum extent permitted by law. If, however, the court
finds such provision to be illegal and not subject to reformation, such provision shall be fully
severable. In such event, this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision was never a part hereof, and the remaining provisions of this Agreement
shall remain in full force and effect.
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Section 13.6. Schedules and Exhibits. All Schedules and Exhibits attached hereto shall
be and hereby are incorporated into this Agreement as if fully .rewritten herein.
Section 13.7. Rules of Construction. The headings and captions of this Agreement are
provided for convenience only and are not intended to have effect in the construction or interpretation
of this Agreement. Whenever herein the singular number is used, the same shall include the plural,
where appropriate, and neutral words and words of any gender shall include the neutral and other
gender, where appropriate. Neither this Agreement nor any uncertainty or ambiguity herein shall be
construed or resolved in favor of or against the City or Company on the basis of which party drafted
the uncertain or ambiguous language. On the contrary, this Agreement has been reviewed by all
parties and shall be construed and interpreted according to the ordinary meaning of the words used so
as to fairly accomplish the purposes and intentions of all parties hereto.
Section 13.8. Amendment. No amendment of or modification to this Agreement shall be
valid unless and until executed in writing by the duly authorized representatives of both parties
to this Agreement.
Section 13.9. Third-Party Beneficiaries. This Agreement is entered into for the
exclusive benefit of the Company and the City, and the Company and the City expressly disclaim
any intent to benefit anyone not a party hereto.
Section 13.10. Time is of the Essence. The City and the Company each acknowledge
and agree that time is of the essence in the performance of this Agreement.
Section 13.11. Non-Exclusive. This Agreement shall be non-exclusive. Accordingly,
subject to Section 13.2 of this Article XIII, the Company shall be free to provide services to
other clients, and City shall be free to engage the services of other contractors unrelated to the
Proj ect.
Section 13.12. Prohibition Against Financial Interest in Agreement. No elected
official or employee of City shall have a financial interest, direct or indirect, in this Agreement.
For purposes of this Section, a financial interest held by the spouse, child or parent of any elected
official or employee of City shall be deemed to be a financial interest of such elected official or
employee of City.
Section 13.13. Remedies Cumulative. No remedy set forth in this Agreement or
otherwise conferred upon or reserved to any party shall be considered exclusive of any other
remedy available to a party. Rather, each remedy shall be deemed distinct, separate and
cumulative and each may be exercised from time to time as often as the occasion may arise or as
may be deemed expedient.
Section 13.14. Complete Agreement. Company specifically acknowledges that in
entering into and accepting this Agreement, Company relies solely upon the representations and
agreements contained in this Agreement and no others. This Agreement supersedes and replaces
any and all prior agreements, negotiations and discussions between the parties hereto with regard
to the terms, obligations and conditions herein.
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Section 13.15. Representatives Not Individually Liable. No member, official, or
employee of either party shall be personally liable to the other party, or any successor in interest,
in the event of any default or breach or on any obligations under the terms of this Agreement.
Section 13.16. Disclaimer of Relationships. The City and the Company acknowledge
that nothing contained in this Agreement nor any act by the City or the Company shall be
deemed or construed by any of them or by any third person to create any relationship of principal
and agent, limited or general partner, or joint venture between or among the City, the Company
and/or any third party.
Section 13.17. Original Copy. One original of this Agreement will be executed and
maintained by the City Clerk of the City. The City Clerk will provide a certified copy to the
Company.
Section 13.18. Whereas Clauses. The "Whereas" clauses at the beginning of this
Agreement are hereby ratified as being true and correct, and incorporated herein.
IN WITNESS WHEREOF, the City has caused this Phase 2 Services Agreement to be
duly executed in its name and behalf and the Company has caused this Agreement to be duly
executed in its name and behalf on the dates set forth below.
CITY OF BOYNTON BEACH, FLORIDA
CITY OF BOYNTON BEACH
BY:
STEVEN B. GRANT, MAYOR
DATE:
ATTEST:
BY:
City Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
City Attorney
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E2L Real Estate Solutions, LLC, a Florida limited
liability company
By:
Mark Hefferin, Manager
DATE:
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EXHIBIT A
HIGH SCHOOL AND DEP IMPROVEMENTS
[Insert scope of work for High School and DEP]
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EXHIBIT B
DESIGN BUILD CONTRACTS
FOR
MUNICIPAL IMPROVEMENTS
1. DBIA Standard Form of Preliminary Agreement Between Owner and Design-Builder
dated August 2, 2017 by and between E2L Real Estate Solutions, LLC and H. J. High
Construction regarding the City of Boynton Beach Fire Station One;
2. DBIA Standard Form of Preliminary Agreement Between Owner and Design-Builder
dated August 2, 2017 by and between E2L Real Estate Solutions, LLC and H. J. High
Construction regarding the City of Boynton Beach Police Station;
3. DBIA Standard Form of Preliminary Agreement Between Owner and Design-Builder
dated August 2, 2017 by and between E2L Real Estate Solutions, LLC and The Haskell
Company regarding the City of Boynton Beach City Hall and Library Renovations; and
4. DBIA Standard Form of Preliminary Agreement Between Owner and Design-Builder
dated August 2, 2017 by and between E2L Real Estate Solutions, LLC and The Haskell
Company regarding the City of Boynton Beach Infrastructure Improvements.
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1.F.
AGENDA ITEMS
3/13/2018
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
REQUESTED ACTION BY COMMISSION: PROPOSED RESOLUTION NO. R18-044-Authorize the
Mayor to sign a Master Development Agreement with CFP Boynton Beach Town Square, LLC for the
development of certain improvements within the Town Square Project and approval for the purposes of
Section 147(F) of the Internal Revenue Code and general authorization to obtain permanent financing for the
CFP improvements and providing for other related matters.
EXPLANATION OF REQUEST:
The master agreement provides for the development of certain public improvements for the Town Square
Project. This includes but not limited to construction of City Hall/Library, construction of open space,
reconstruction of kids kingdom playground, construction of Police Headquarter on High Ridge Road,
construction of Fire Station#1, and related infrastructure improvements.
Also provides approval for the purposes of Section 147(F) of the Internal Revenue Code in regards to
TEFRA approval and provides general authorization for issuance of CFP bonds, solely for purposes of
Section 147(f) of the Code.
Some additional refinement of this agreement may occur prior to adoption
HOW WILL THIS AFFECT CITY PROGRAMS OR SERVICES?
FISCAL IMPACT:
ALTERNATIVES: Do not approve master development agreement.
STRATEGIC PLAN: Energetic Downtown: Focal Point for Boynton Beach
STRATEGIC PLAN APPLICATION:
Provide authorization to move forward with Town Square Project.
CLIMATE ACTION: No
CLIMATE ACTION DISCUSSION:
Is this a grant? No
Grant Amount:
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ATTACHMENTS:
Type Description
D Resolution R ® CFP Authorizing
D Agreement Master Agreement CFP
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RESOLUTION NO.R18-
A RESOLUTION OF THE CITY OF BOYNTON BEACH,
FLORIDA, AUTHORIZING THE EXECUTION OF THE
MASTER DEVELOPMENT AGREEMENT WITH CFP
BOYNTON BEACH TOWN SQUARE, LLC, A FLORIDA
LIMITED LIABILITY COMPANY ("CFP"), FOR THE
DEVELOPMENT OF CERTAIN PUBLIC IMPROVEMENTS
WITHIN THE TOWN SQUARE PROJECT (THE "CFP
IMPROVEMENTS"); PROVIDING FOR A COVENANT TO
BUDGET AND APPROPRIATE; PROVIDING FOR AN ANTI-
DILUTION COVENANT; PROVIDING APPROVAL FOR
THE PURPOSES OF SECTION 147(F) OF THE INTERNAL
REVENUE CODE AND GENERAL AUTHORIZATION TO
OBTAIN PERMANENT FINANCING FOR THE CFP
IMPROVEMENTS; AND PROVIDING FOR OTHER
RELATED MATTERS.
WHEREAS, in accordance with Section 255.065, Florida Statutes, the City of Boynton
Beach, Florida (the "City") issued the Request for Qualifications for the City of Boynton
Beach Town Square Redevelopment RFQ No. 004-1210-17/JMA (the "RFQ") for the planning,
development, financing, and completion of certain public improvements and private
improvements for redevelopment of an approximately 16 acre site described as the Boynton
Beach Town Square Project (the "Town Square Project"); and
WHEREAS, E2L Real Estate Solutions, LLC, a Delaware limited liability company
("E2L") submitted a response to the RFQ on March 9, 2017, and was selected as the successful
proposer; and
WHEREAS, a portion of the Town Square Project includes the construction of a new
City Hall, Library, Police Station, Fire Station, and related amenities and infrastructure, as
more specifically described on Exhibit "A" attached hereto (the "CFP Improvements"); and
WHEREAS,pursuant to the Phase 1 Services Agreement dated June 21, 2017 between
the City and E2L, as amended to the date hereof(the "Phase 1 Agreement"), E2L provided pre-
development services for the CFP Improvements, in the capacity of the master development
manager; and
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WHEREAS, the Phase 1 Agreement identified the professional service providers and
consultants to be utilized in connection with the completion of the CFP Improvements
including, but not limited to, CFP Boynton Beach Town Square, LLC, a Florida limited
liability company ("CFP"), which is described in the Phase 1 Agreement as the developer of
and obligor for the financing of the CFP Improvements; and
WHEREAS, E2L has provided the City with the deliverables required under the Phase
1 Agreement, and the City hereby renders its approval of the deliverables; and
WHEREAS, the Phase I Agreement will be supplemented by a Phase 2 Services
Agreement dated March 13, 2018 (the "Phase 2 Agreement"), which sets forth the parties'
obligations relative to, among other things, the completion of additional pre-development
services for the CFP Improvements, as are more particularly set forth in the Phase 2 Agreement
(the "Additional Services"); and
WHEREAS, the City has determined that time is of the essence to complete the CFP
Improvements and, as such, has requested that in conjunction with, or upon completion of the
Additional Services pursuant to the Phase 2 Agreement, CFP shall proceed with the
completion of the planning, design, engineering, surveying, permitting, consulting,
construction and other activities for the CFP Improvements, all as more particularly set forth
in the Master Development Agreement, the substantial form of which is attached hereto as
Exhibit `B" (the "CFP Master Development Agreement"); and
WHEREAS, the City has evaluated the CFP Improvements and such other data and
information that the City has deemed reasonable and necessary, and in accordance with Section
255.065(5)(d) and (e), Florida Statutes, the City has determined the following:
1. There is a public need for and benefit derived from the CFP Improvements;
2. The estimated cost of the CFP Improvements is reasonable in relation to other
similar facilities; and
3. The plans of CFP, working in conjunction with E2L, will result in the timely
acquisition, design, construction, improvement, renovation, expansion, equipping
and maintenance of the CFP Improvements; and
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WHEREAS, the City has evaluated each of the factors set forth in Section 255.065(9),
Florida Statutes, and in accordance with Section 255.065(3)(d), Florida Statutes, the City
hereby makes the following additional findings:
1. The CFP Improvements are in the public's best interest;
2. The CFP Improvements include facilities that are owned by the City and facilities
that will be conveyed to the City in the future;
3. The agreements and transactions contemplated herein include adequate safeguards
to ensure that additional costs or service disruptions will not be imposed on the
public in the event of a material default or cancellation of the agreements or
transactions by the City;
4. The CFP Improvements will have adequate safeguards in place to ensure that the
City or CFP will have the opportunity to add capacity to the CFP Improvements or
other facilities servicing similarly predominantly public purposes;
5. The CFP Improvements will be owned by the City upon completion, expiration, or
termination of the agreements and transactions provided for herein and upon
payment of the amounts financed by the CFP Bonds; and
WHEREAS, CFP will be requesting Public Finance Authority, a Wisconsin bond
issuing commission (the "Issuer") to issue its Capital Improvement Revenue Bonds (City of
Boynton Beach Municipal Improvements Project), Series 2018 in an amount not to exceed
$78,000,000 (the "CFP Bonds"), and
WHEREAS, CFP has selected Dougherty & Company LLC, to serve as Underwriter
for the CFP Bonds, and Broad and Cassel LLP to serve as Bond Counsel and Disclosure
Counsel in connection with the offering and issuance of the CFP Bonds, and the City concurs
with such selections; and
WHEREAS, the proceeds of the CFP Bonds will be loaned to CFP for purposes which
include, but are not limited to, financing or refinancing the costs of designing, permitting and
constructing the CFP Improvements, as well as related reserves, capitalized interest and costs
of issuance, including the financing, refinancing or payment of costs incurred in connection
with the Phase 1 Services and Additional Services; and
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WHEREAS, pursuant to the CFP Master Development Agreement and the forms of the
agreements attached thereto, the City intends to lease to CFP a portion of the land upon which
the CFP Improvements shall be constructed and lease back the completed CFP Improvements,
in exchange for the payment of rent to CFP in an aggregate amount sufficient to pay debt
service on the CFP Bonds and other ongoing costs and expenses incurred in connection with
the CFP Bonds, all in accordance with the terms and conditions of one or more Ground
Lease(s) and Facility Lease(s) (the "Leases"); and
WHEREAS, to secure the amounts due from the City under the Leases, the City shall
covenant to budget and appropriate Available Non-Ad Valorem Revenues (as defined below) to
pay for the amounts due under the Leases; and
WHEREAS, the issuance of the CFP Bonds requires a public hearing and approval by
the City for the purposes of Section 147(f) of the Internal Revenue Code of 1986, as amended
(the "Code").
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA,THAT:
Section 1. The foregoing "WHEREAS" clauses are true and correct and are hereby
ratified, confirmed and adopted by the City Commission as its legislative findings relative to the
subjects and matters set forth in this Resolution.
Section 2. The City Commission hereby approves the CFP Master Development
Agreement, in the substantial form attached hereto as Exhibits `B", as well as the forms of the
agreements attached thereto, with such changes, corrections, insertions and deletions thereto, or
subsequent minor amendments to the CFP Master Development Agreement as shall be approved
by the Mayor, Vice-Mayor, or the City Manager (each, an "Authorized Officer"), with the
approval of the City Attorney, the execution thereof by an Authorized Officer being deemed
conclusive evidence of the approval of such changes.
Section 3. The City Commission acknowledges this Authorizing Resolution and the
agreements and transactions contemplated herein will be an integral part of the financing for the
CFP Bonds. Consequently, each Authorized Officer and the City Attorney is hereby authorized
and directed, either alone or jointly, under the official seal of the City, to execute and deliver
certificates of the City certifying such facts as Bond Counsel shall require in connection with the
issuance, sale, and delivery of the CFP Bonds, and to execute and deliver such other instruments,
including but not limited to, applications, agreements, assignments, financing statements,
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mortgage instruments, closing certificates and instruments, and opinions, as shall be necessary or
desirable to perform CFP's obligations under the bond, underwriting, and offering documents, and
to take any and all actions necessary in order to consummate the transactions authorized herein,
subject to the terms and conditions hereunder and the approval of the City Attorney.
Section 4. Security for Amounts due under the Leases; Permanent Financing for the
CFP Improvements.
A. CFP shall proceed with causing the completion of the CFP
Improvements, all in accordance with the CFP Master Development Agreement and Leases. The
City shall be responsible for paying from Available Non- Ad Valorem Revenues (as defined in
5.A. below) rent payment amounts which shall be sufficient to pay the debt service on the CFP
Bonds (the "Rent Payments"), until the date the CFP Bonds are paid in full.
B. In connection with the issuance of the CFP Bonds, CFP shall
pledge the Rent Payments to secure the repayment of the CFP Bonds.
Section 5. Covenant to Budget and Appropriate.
A. The City Commission covenants that it will budget and
appropriate Available Non-Ad Valorem Revenues, in amounts sufficient to pay the amounts
(including interest on such amounts) as described in Section 4, above. The phrase "Non-Ad
Valorem Revenues" shall mean all revenues of the City not derived from ad valorem taxation.
The phrase "Available Non-Ad Valorem Revenues" shall mean all Non-Ad Valorem
Revenues other than (A) any revenues which are restricted by a contract in existence on the
date hereof, (B) any revenues which are prohibited by law from being used to pay the
payments required under the CFP Master Development Agreement and the Leases, and any
revenues which are not otherwise legally available to pay the payments required under the
CFP Master Development Agreement and the Leases, such as but not limited to, revenues
generated by the imposition of special assessments which have been adopted to fund projects
which are not part of the CFP Improvements.
B. Such covenant and agreement on the part of the City to budget
and appropriate such amounts of Available Non-Ad Valorem Revenues shall be cumulative to
the extent not paid, and shall continue until such Available Non-Ad Valorem Revenues or
other legally available funds in amounts sufficient to make all such required payments shall
have been budgeted, appropriated and actually paid. Notwithstanding the foregoing covenant
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of the City, the City does not covenant to maintain any services or programs, now provided or
maintained by the City, which generate Available Non-Ad Valorem Revenues.
C. Such covenant to budget and appropriate does not create any
lien or pledge of Available Non-Ad Valorem Revenues, nor does it require the City to levy
and collect any particular Available Non-Ad Valorem Revenues, nor does it give the holders
of any obligation payable from such covenant to budget and appropriate a prior claim on the
Available Non-Ad Valorem Revenues as opposed to claims of general creditors of the City.
Such covenant to budget and appropriate is subject in all respects to the payment of
obligations secured by a pledge of Available Non-Ad Valorem Revenues heretofore or
hereafter entered into (including debt service on bonds and other obligations). However, the
covenant to budget and appropriate in its general annual budget or amendments thereto for the
purposes and in the manner stated herein shall have the effect of making available for payment
of the obligations of the City under the Master Agreement and the Leases, in the manner
described herein, the Available Non-Ad Valorem Revenues of the City, and of placing on the
City a positive duty to appropriate and budget, by amendment, if necessary, amounts
sufficient to meet its obligations therein; subject, however, to the payment of services and
programs which are Essential Government Services or which are legally mandated by
applicable law. For purposes of this Section, the phrase "Essential Government Services"
means public safety and general governmental services provided by the City, the expenditures
for which are currently set forth as the line items entitled "General Government" and Public
Safety in the City's Comprehensive Annual Financial Report for the Fiscal Year ended
September 30, 2017, and any equivalent line items in any future financial statements of the
City.
Section 6. Anti-Dilution Covenant. In addition to its covenant to budget and
appropriate as set forth in Section 5, above, the City further covenants that during the period
that all or a portion of the CFP Bonds remain outstanding, the City will not incur additional
debt that is secured by all or a portion of Available Non-Ad Valorem Revenues unless there
shall be filed with the City a report by an independent certified public accountant,
demonstrating that the total amount of Available Non-Ad Valorem Revenues for the prior
fiscal year is at least 1.50 times (or such other amount as may be agreed to by an Authorized
Officer and set forth in the bond documents) the maximum annual debt service of all debt
(including all long-term financial obligations appearing on the City's most recent audited
financial statements and any additional debt proposed to be incurred) to be paid from
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Available Non-Ad Valorem Revenues (collectively, "Debt"), including Debt payable from
one or several specific revenue sources.
Section 7. TEFRA Approval. Having considered any and all comments and concerns
expressed at the public hearing, the City Commission hereby approves the issuance of the CFP
Bonds, solely for purposes of Section 147(f) of the Code.
A. The Issuer is hereby authorized to take all action necessary to do
all things necessary to issue the CFP Bonds.
B. Except as otherwise provided for herein, the City shall have no
obligation with respect to the CFP Bonds, and, except as otherwise provided in this Resolution,
the approval given herein shall not be deemed to create any obligation or liability, pecuniary or
otherwise, of the City in any respect whatsoever. The general credit or taxing power of the City
and the State of Florida or any political subdivision or public agency thereof shall not be pledged
to the payment of the CFP Bonds. No statement, representation or recital made herein shall be
deemed to constitute a legal conclusion or a determination by the City that any particular action or
proposed action is required, authorized or permitted under the laws of the State of Florida or the
United States.
C. The approval given herein shall not be construed as (i) an
endorsement of the creditworthiness of CFP, or the financial viability of the CFP
Improvements, (ii) a recommendation to any prospective purchaser of the CFP Bonds, (iii) an
evaluation of the likelihood of the repayment of the debt service on the CFP Bonds, or (iv) an
approval of any necessary zoning applications nor for any development plan approvals or
other regulatory permits relating to the CFP Improvements, and the City shall not be construed
by reason of its adoption of this resolution to have made any such endorsement, finding or
recommendation or to have waived any of the City's rights or estopping the City from
asserting any rights or responsibilities it may have in that regard.
Section 8. In the event that the definitive agreements referenced herein are not
executed by the parties, or in the event that the transactions contemplated herein fail to close
on or before November 1, 2018, the City agrees to reimburse CFP, the Underwriter, and Bond
Counsel for each entity's reasonable and customary fees and out of pocket expenses incurred
in connection with the transactions contemplated herein, all in accordance with the terms,
conditions and limitations as are more fully set forth in the Master Agreement.
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Section 9. This instrument shall take effect immediately upon its adoption.
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PASSED AND ADOPTED this 13th day of March, 2018.
CITY OF BOYNTON BEACH,FLORIDA
YES NO
Mayor- Steven B. Gant
Vice Mayor- Justin Katz
Commissioner- Mack McCray
Commissioner- Christina L. Romelus
Commissioner- Joe Casello
VOTE
ATTEST:
Judith A. Pyle, CMC,
City Clerk
(CORPORATE SEAL)
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EXHIBIT A
DESCRIPTION
OF THE
CFP IMPROVEMENTS
CFP will use the proceeds of the CFP Bonds to provide permanent financing and/or
refinancing for the acquisition, construction and equipping of all or a portion of the Town
Square Project, which will be leased to the City of Boynton Beach, Florida (the "City"),
including, without limitation, the following components and any and all design, planning,
surveying, engineering, permitting, and pre-development services and expenditures related
thereto, and all related and supporting infrastructure (together, the"CFP Improvements"):
(1) The Town Square Property Improvements: The Town Square Property consists
of approximately 16 acres, and is bounded by East Boynton Beach Boulevard, South Seacrest
Boulevard, SE 2nd Avenue, and SE 1st Street, in the City. The improvements to be constructed
within the Town Square Property are anticipated to include, but not be limited to:
(a) the construction of a combined City Hall and Library, to consist of
approximately 65,000 square feet for the City Hall needs, and approximately 44,000 square
feet for the Library needs;
(b) the construction of improvements to parks, to consist of approximately
0.90 acres and approximately 0.22 acres, and other open space enhancements; and
(c) the reconstruction of Kids Kingdom Playground, to consist of
approximately 15,000 square feet.
(2) High Ridge Road Property Improvements. The High Ridge Road Property
consists of approximately 5.46 acres, and is bounded by West Gateway Boulevard, High
Ridge Road, and I-95 in the City. The portion of the improvements to be constructed within
the High Ridge Road Property shall include a new Police Station, consisting of approximately
56,000 square feet and related improvements.
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(3) North-East 1st Street Property Improvements. The North-East 1st Street
Property consists of approximately 1 acre, and is located at North-East 1st Street, in the City,
and is bounded by NE 1st Avenue. The portion of the improvements to be constructed within
the North-East 1st Street Property shall include Fire Station #1, consisting of approximately
10,000 square feet and related improvements.
(4) Infrastructure Improvements. The Infrastructure Improvements includes
construction of all infrastructure necessary to support the CFP Improvements and future
development.
CFP will also use the proceeds of the CFP Bonds to fund necessary debt service
reserves, and/or capitalized interest on the CFP Bonds, if any, and to pay costs associated with
the issuance of the CFP Bonds.
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EXHIBIT B
FORM OF THE MASTER DEVELOPMENT AGREEMENT
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MASTER DEVELOPMENT AGREEMENT
THIS MASTER DEVELOPMENT AGREEMENT, made effective as of the day
of 2018, by and between the City of Boynton Beach, Florida (the "City"), and
having its principal office at 100 East Boynton Beach Boulevard, Boynton Beach, Florida 33425,
and CFP Boynton Beach Town Square, LLC, a Florida limited liability company ("CFP"), and
having its principal office at 18336 Minnetonka Blvd., Suite #C, Deephaven, Minnesota 55391.
WITNESSETH:
WHEREAS, the City of Boynton Beach (the "City") issued the Request for
Qualifications for the City of Boynton Beach Town Square Redevelopment RFQ No. 004-1210-
17/JMA (the "RFQ") for the planning, development, financing, and completion of certain public
improvements and private improvements for redevelopment of an approximately 16 acre site
described as the Boynton Beach Town Square Project(the "Town Square Project"); and
WHEREAS, E2L Real Estate Solutions, LLC, a Delaware limited liability company
("E2L") submitted a response to the RFQ on March 9, 2017 (the "E2L Proposal"), and was
selected by the City as the successful proposer; and
WHEREAS, a portion of the Town Square Project includes the construction of a new City
Hall, Library, Police Station, Fire Station, and related amenities and infrastructure, as more
specifically described in Section 3.01, below(the "CFP Improvements"); and
WHEREAS, E2L has provided certain pre-development services for the CFP
Improvements pursuant to that certain Town Square Redevelopment Phase 1 Services
Agreement dated June 21, 2017, as amended to the date hereof(the "Phase 1 Agreement"); and
WHEREAS, the Phase 1 Agreement will be supplemented by that certain Phase 2
Services Agreement dated March 13, 2018 between the City and E2L (the "Phase 2
Agreement"), which sets forth the parties' obligations relative to, among other things, the
completion of additional pre-development services for the CFP Improvements, as are more
particularly set forth in the Phase 2 Agreement(the"Additional Services"); and
WHEREAS, pursuant to the work performed in conjunction with the Phase 1
Agreement, and upon completion of the Additional Services, the parties have determined that the
CFP Improvements shall be constructed on property owned by the City as further described in
Section 3.0, below (the "Property" and together with the CFP Improvements, collectively, the
"CFP Project"); and
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WHEREAS, the City intends to lease the Property to CFP pursuant to one or more Site
Lease(s) (as defined herein); and
WHEREAS, CFP along with E2L as an independently engaged project manager, intend
to develop and construct the CFP Improvements on the Property, all in accordance with a
Development Agreement(as defined herein); and
WHEREAS, CFP intends to lease back the Property and CFP Improvements to the City
pursuant to one or more Facilities Lease(s) (as defined herein) for the operation and maintenance
of the CFP Improvements, all as set forth herein; and
WHEREAS, the financing for the CFP Project will be pursuant to the issuance of tax-
exempt and taxable Bonds (as defined herein) which will be secured, in part, by the rent
payments that CFP receives from the City in accordance with the Facilities Lease; and
WHEREAS, upon the defeasance or full payment of the Bonds, CFP shall be obligated
to tender to the City unencumbered title to the CFP Project, and the City shall be obligated to
accept unencumbered title to the CFP Project; and
WHEREAS, the City hereby legislatively finds and determines that the development and
operation of the CFP Project will serve a valid and paramount public purpose; and
WHEREAS, in order to facilitate the financing, construction and operation of the CFP
Project, the parties to this Master Agreement are prepared to agree upon their respective
obligations and to approve the substantial form of various documents to be executed by the
parties.
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein and other valuable consideration, receipt of which is hereby
acknowledged, the parties hereby covenant and agree as follows:
ARTICLE I
RECITALS AND INTERPRETATION
SECTION 1.01. RECITALS. The parties agree that the recitals are true and correct
and by this reference incorporated and made a part of this Master Agreement.
SECTION 1.02. INTERPRETATION. Words importing the singular number shall
include the plural in each case and vice versa, and words importing persons shall include firms
and corporations. The terms "herein", "hereunder", "hereby", "hereof', and any similar terms,
shall refer to this Master Agreement; the term "heretofore" shall mean before the date this
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Master Agreement is executed; and the term "hereafter" shall mean after this Agreement is
executed. Whenever the word "including" is used herein, it shall be deemed to mean "without
limitation." Each recital, covenant, agreement, representation, and warranty made by a party
herein shall be deemed to have been material and to have been relied on by the other parties to
this Master Agreement. All parties have participated in the drafting and preparation of this
Master Agreement, and the provisions hereof shall not be construed for or against any party by
reason of authorship.
SECTION 1.03. SECTION HEADINGS. Any headings preceding the texts of the
several Sections of this Master Agreement, shall be solely for convenience of reference and shall
neither constitute a part of this Master Agreement nor affect its meaning, construction or effect.
ARTICLE II
REPRESENTATIONS
SECTION 2.01. REPRESENTATIONS OF THE CITY. The City makes the
following representations as the basis for the undertakings on the part of herein contained:
(A) The City is a municipal corporation of the State of Florida, duly created and
validly existing under the laws of the State of Florida and has all requisite power and authority to
adopt the City's Resolution No. [ ] approved on March 13, 2018 (the "Authorizing
Resolution") and to enter into the transactions contemplated by this Master Agreement, the
Ground Lease(s), the Facilities Lease(s), and the Development Agreement (collectively, the
"CFP Improvement Agreements"), and to carry out its obligations hereunder and thereunder.
(B) The City is not in default under any provisions of applicable law material to the
performance of its obligations under the CFP Improvement Agreements and the Authorizing
Resolution.
(C) The City has duly authorized the Authorizing Resolution and the execution and
delivery of the CFP Improvement Agreements, and assuming the due authorization, execution
and delivery by the other parties hereto and thereto, the CFP Improvement Agreements and the
Authorizing Resolution constitute valid and legally binding obligations of the City, enforceable
in accordance with their respective terms, except to the extent that the enforceability thereof may
be limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting creditors' rights generally, or by the exercise of judicial discretion in accordance
with general principles of equity.
(D) The authorization, execution and delivery of the CFP Improvement Agreements
and the Authorizing Resolution, and the compliance by the City with the provisions hereof and
thereof will not conflict with or constitute a material breach of, or default under, any existing
law, court or administrative regulation, decree, order or any provision of the Constitution or laws
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of the State of Florida relating to the City or its affairs, or any ordinance, resolution, agreement,
mortgage, lease or other instrument to which the City is subject or by which it is bound.
(E) There is no action, suit, proceeding or investigation at law or in equity before or
by any court, public board or body pending or, to the best knowledge of the City, threatened
against or affecting the City, wherein an unfavorable decision, ruling or finding would materially
adversely affect the transactions contemplated hereby, or which, in any way, would materially
adversely affect the validity of the CFP Improvement Agreements and the Authorizing
Resolution, or any agreement or instrument to which the City is a party and which is used or
contemplated for use in the consummation of the transactions contemplated hereby.
SECTION 2.02 REPRESENTATIONS OF CFP. CFP makes the following
representations as the basis for the undertakings on the part of the City herein contained:
(A) CFP is a Florida limited liability company, authorized to transact business in
Florida, and has all requisite power and authority to enter into the transactions contemplated by
the CFP Improvement Agreements, and to carry out its obligations hereunder and thereunder.
(B) CFP is not in default under any provisions of applicable law material to the
performance of its obligations under the CFP Improvement Agreements.
(C) CFP has duly authorized the execution and delivery of the CFP Improvement
Agreements, and assuming the due authorization, execution and delivery by the other parties
hereto and thereto, the CFP Improvement Agreements constitute legally binding obligations of
CFP, enforceable in accordance with their respective terms, except to the extent that the
enforceability thereof may be limited by any applicable bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors' rights generally, or by the exercise of
judicial discretion in accordance with general principles of equity.
(D) The authorization, execution and delivery of the CFP Improvement Agreements,
and the compliance by CFP with the provisions hereof and thereof will not conflict with or
constitute a material breach of, or default under, any existing law, court or administrative
regulation, decree, order or any provision of the Constitution or laws of the State of Florida or
any other applicable law relating to CFP or its affairs, any ordinance, resolution, agreement,
mortgage, lease or other instrument to which CFP is subject or by which it is bound.
(E) There is no action, suit, proceeding or investigation at law or in equity before or
by any court, public board or body pending or, to the best knowledge of CFP, threatened against
or affecting CFP, wherein an unfavorable decision, ruling or finding would materially adversely
affect the transactions contemplated hereby or which, in any way, would materially adversely
affect the validity of the CFP Improvement Agreements, or any agreement or instrument to
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which CFP is a party and which is used or contemplated for use in the consummation of the
transactions contemplated hereby.
ARTICLE III
THE PROJECT
SECTION 3.01 THE PROPERTY AND CFP IMPROVEMENTS. The
following improvements including, without limitation, any and all design, planning, surveying,
engineering, permitting, and pre-development services and expenditures related thereto, and all
related and supporting infrastructure, comprise the CFP Improvements:
(1) The Town Square Property Improvements: The Town Square Property consists of
approximately 16 acres, and is bounded by East Boynton Beach Boulevard, South Seacrest
Boulevard, SE 2nd Avenue, and SE 1st Street, in the City. The improvements to be constructed
within the Town Square Property are anticipated to include, but not be limited to:
(a) the construction of a combined City Hall and Library, to consist of
approximately 65,000 square feet for the City Hall needs, and approximately 44,000 square
feet for the Library needs;
(b) the construction of improvements to parks, to consist of approximately
0.90 acres and approximately 0.22 acres, and other open space enhancements; and
(c) the reconstruction of Kids Kingdom Playground, to consist of
approximately 15,000 square feet.
(2) High Ridge Road Property Improvements. The High Ridge Road Property
consists of approximately 5.46 acres, and is bounded by West Gateway Boulevard, High Ridge
Road, and I-95 in the City. The portion of the improvements to be constructed within the High
Ridge Road Property shall include a new Police Station, consisting of approximately 56,000
square feet and related improvements.
(3) North-East 1st Street Property Improvements. The North-East 1st Street Property
consists of approximately 1 acre, and is located at North-East 1st Street, in the City, and is
bounded by NE 1st Avenue. The portion of the improvements to be constructed within the
North-East 1st Street Property shall include Fire Station #1, consisting of approximately 10,000
square feet and related improvements.
(4) Infrastructure Improvements. The Infrastructure Improvements includes
construction of all infrastructure necessary to support the CFP Improvements and future
development.
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CFP will also use the proceeds of the CFP Bonds (as hereinafter defined) to fund
necessary debt service reserves, and/or capitalized interest on the CFP Bonds, if any, and to pay
costs associated with the issuance of the CFP Bonds.
SECTION 3.02. DESIGN AND CONSTRUCTION.
(A) The City has received and approved all development documents and other
deliverables required under the Phase 1 Agreement, for each component of the CFP
Improvements.
(B) In conjunction with, or upon completion of, the Additional Services and approval
by the City of all associated deliverables, CFP agrees to cause the completion of the design,
permitting, and construction of the CFP Improvements, which services shall include, but shall
not be limited to, the following:
(1) building and installing the CFP Improvements and coordinating with the
City on the construction and installments;
(2) arranging for and coordinating with the City the supervision of all plans
necessary to construct and install the CFP Improvements, including the preparation of
budgets for various stages of the CFP Project;
(3) letting all contracts necessary to implement the construction and
installation of the CFP Improvements and supervising all improvements so as to assure
the prompt completion thereof,
(4) arranging for and coordinating with the City the provision of all insurance
necessary in connection with the CFP Project;
(5) performing or causing to be performed, general management and
administrative services in connection with the construction and installation of the CFP
Improvements; and
(6) contracting for and providing all necessary legal, appraisal and accounting
services in connection with the construction and installation of the CFP Improvements.
(C) In furtherance of CFP's obligations set forth herein, CFP will be requesting Public
Finance Authority, a Wisconsin bond issuing commission (the "Issuer") to issue its Capital
Improvement Revenue Bonds (City of Boynton Beach Municipal Improvements Project), Series
2018 in an amount not to exceed $78,000,000 (the "CFP Bonds"), the proceeds of which will be
loaned to CFP for the purposes of financing or refinancing the costs of designing, permitting and
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constructing the CFP Improvements, as well as related reserves, capitalized interest and costs of
issuance, including the financing, refinancing or payment of costs incurred in connection with the
Phase 1 Services and Additional Services.
(D) On or before the date the CFP Bonds are issued (the "Bond Closing Date"), CFP
and E2L shall enter into the Development Agreement, in substantially the form attached hereto
as Appendix A, wherein E2L commits to using commercially reasonable efforts to administer,
implement and enforce the Design-Build Contracts so that the Design Builders cause substantial
completion of the CFP Project and deliver the completed CFP Project to CFP by the "Project
Delivery Date" for a fixed price (the "Total Project Price"). The terms of the Development
Agreement shall provide that in the event the City provides written notice to CFP that E2L is
failing to perform in furtherance of the material obligations of CFP pursuant to this Master
Agreement, such notice shall be sufficient grounds for CFP to terminate the Development
Agreement, and such termination shall be without liability to CFP or the City.
(E) Following the completion of the Additional Services, and on or before the Bond
Closing Date, CFP shall enter into (or accept the assignment of) the guaranteed maximum price
construction contract(s) (the "Design-Build Contracts") with the Design-Builders listed in
Appendix B-1, in substantially the forms attached hereto as Appendix B-2. CFP shall require the
contractors to provide a performance and payment bond covering the full construction cost of the
CFP Improvements, in a form acceptable to the City. Following the execution of the Design-
Build Contracts, CFP agrees that it shall not amend or modify the Design-Build Contracts
without the prior written consent of the City, which consent shall not be unreasonably delayed,
denied or withheld.
(F) Notwithstanding anything contained herein to the contrary, the total project costs
associated with the design, permitting, and construction of the CFP Improvements, together with
the costs to fund necessary reserves or capitalized interest for the CFP Bonds, if any, and to pay
costs associated with the issuance of the CFP Bonds, shall not exceed $78,000,000 unless
another amount is mutually agreed to in writing by the parties.
(G) CFP shall cause the completion of the design, permitting, and the construction of
the CFP Improvements to be in compliance with all applicable City ordinances and codes and
state and federal statutes, rules and regulations, and in conformance with the terms and
conditions of the CFP Improvement Agreements and the Design-Build Contracts.
(H) The City shall assign a dedicated, experienced project manager to work with CFP
and E2L to ensure that the design and construction of the CFP Project is on schedule.
(I) CFP hereby appoints Doug Holmberg, President, PPM, Inc., as its dedicated,
experienced project manager to act as its representative (the "CFP Project Manager"), who shall
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be authorized to act on CFP's behalf with respect to the CFP Project. The duties of, and
identification of, the CFP Project Manager may be changed by CFP from time to time, upon
written notice to the City. In the event that E2L is terminated pursuant to the provisions of the
Development Agreement, CFP agrees to expand the duties of the CFP Project Manager to
assume the role of E2L as the project manager, or to take such other action as may be necessary
to ensure that CFP satisfies its obligations hereunder and in furtherance of the Leases, in
consideration for the payment of the remainder of the Development Fee (as defined in the
Development Agreement) not due and owing to E2L.
SECTION 3.03. LAND USE ENTITLEMENTS. On or before the Bond Closing
Date, the City shall obtain all land use entitlements necessary to commence construction of the
CFP Project. Said entitlements shall include, but not be limited to, comprehensive land use
approvals, zoning, site plan and construction plan approvals.
SECTION 3.04. CRA CONVEYANCE. The parties acknowledge that the North-
East 1st Street Property is currently owned by the Boynton Beach Community Redevelopment
Agency (the "CRA"). The City agrees to acquire fee simple ownership of the North-East 1st
Street Property on or before the Bond Closing Date.
ARTICLE IV
LEASE AGREEMENTS
SECTION 4.01. GROUND LEASE.
(A) On the Bond Closing Date (defined herein), the City and CFP agree to enter into
one or more ground leases, in substantially the form attached hereto as Appendix C (together, or
singularly, referred to herein as applicable, as the "Ground Lease"). Unless extended or sooner
terminated in accordance with its terms, the Ground Lease will expire on the earlier of
September 1, 2044, or the date that the CFP Bonds have been paid or defeased in full.
(B) CFP shall pay for the use of the Property the sum of One Dollar ($1.00) per year
to the City as basic rent, or such other amount as the parties may mutually agree upon, in writing.
(C) CFP's use of the Property shall be solely for the development, operation, use,
repair and maintenance of the Project, all as set forth in the Ground Lease.
SECTION 4.02 FACILITIES LEASE.
(A) On the Bond Closing Date, CFP and the City agree to enter into one or more
facilities leases, in substantially the form attached hereto as Appendix D (together, or singularly,
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referred to herein as applicable, the "Facilities Lease"). Unless extended or sooner terminated in
accordance with its terms, the Facilities Lease will expire on the earlier of September 1, 2044, or
the date that the Bonds have been paid or defeased in full.
(B) Pursuant to the Facilities Lease, the City shall be obligated to pay Rent, which
shall include (i) Periodic Rent (as defined in the Facilities Lease) pursuant to a schedule of
payments attached to the Facilities Lease in the aggregate amount sufficient to pay debt service
on the Bonds, and (ii) Additional Rent(as defined in the Facilities Lease).
(C) The City shall be obligated to begin paying Rent on the "Rent Commencement
Date" as defined in the Facilities Lease. The City has, by the passage of the Authorizing
Resolution, covenanted to budget and appropriate non-ad valorem revenues in such sufficient
amounts to secure its obligations to pay Rent, as required the Facilities Lease. The City's
obligation to pay Rent when due shall be a general fund obligation of the City and shall not
constitute a debt of the City for which the City will be obligated to pledge or levy any form of
taxation.
(D) Upon completion of the CFP Improvements, the City shall manage and operate
the CFP Improvements. CFP shall not be required to make any expenditures in connection with
the CFP Improvements, or to make any repairs, replacements or otherwise maintain the CFP
Improvements, except as may be otherwise provided for in the Facilities Lease.
(E) Upon payment of all outstanding Rent obligations, and all other outstanding
payments, fees, expenses due with respect to the Bonds, CFP shall be obligated to tender to the
City unencumbered title to the Property and the CFP Improvements; and
(F) City shall have the option to prepay any Rent payments and to acquire all interests
to the CFP Improvements. Such option shall be subject to the optional prepayment rights for the
CFP Bond financing.
ARTICLE V
FINANCING
SECTION 5.01. FINANCING OBLIGATIONS OF THE PARTIES
(A) Responsibilities for Financing.
(1) The CFP Improvements shall be financed by CFP with the proceeds of the
issuance of the CFP Bonds by the Issuer.
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(2) The Indenture, Loan Agreement and any mortgage documents securing the
CFP Bonds shall be provided to and shall be approved by an Authorized Officer, as defined in
the Authorizing Resolution and such approval and execution shall not be unreasonably withheld
or delayed.
(B) Security. The CFP Bonds will be secured by a Trust Estate established under the
Indenture. The Trust Estate will be primarily comprised of the revenues of CFP, including
without limitation, Rent payments made by the City under the Facilities Lease. The City has
covenanted to budget and appropriate non-ad valorem revenues to secure its payment obligations
under the Facilities Lease. The CFP Bonds shall not constitute the general obligation of the
Public Facilities Authority, or the City, and shall be payable from available monies constituting
the Trust Estate. Neither the full faith credit or taxing power of the State of Florida, the Public
Facilities Authority, or the City shall be pledged to the repayment of the CFP Bonds.
(C) Bond Closing Date. CFP and the City shall use commercially reasonable efforts
to consummate the Bond financing on or before August 30, 2018.
(D) Fees and Expenses. In addition to the obligations and agreements of the City as
set forth in the Phase 1 Services Agreement, as amended, and the Phase 2 Agreement as such
agreements pertain to the CFP Improvements, the City acknowledges and agrees that in the event
that the CFP Bonds are not issued as contemplated herein, or the transactions contemplated
herein otherwise fail to close by November 1, 2018, the City shall reimburse CFP, Dougherty &
Company LLC, as underwriter, and Broad and Cassel LLP, as Bond Counsel and Disclosure
Counsel, for each entity's reasonable and customary fees and out of pocket expenses incurred in
connection with the transactions contemplated herein. Each entity shall provide the City with
such documentation as it reasonably may require to support its request for reimbursement, but in
no event shall such reimbursement exceed the following amounts: $180,000 for CFP; $100,000
for Dougherty & Company LLC, and $200,000 for Broad and Cassel LLP. Upon the payment of
the fees and expenses required herein, this Master Agreement shall automatically terminate, and
shall be of no further force and effect.
SECTION 5.02. REFINANCING.
(A) Consent Required. CFP shall not enter into any Refinancing without the prior
written consent of the City, which consent shall not be unreasonably delayed, denied or withheld.
CFP shall provide written notice of any Refinancing no later than 90 days prior to the expected
closing date of such Refinancing, which notice shall include all proposed revisions to the
applicable Bond documents.
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(B) Cooperation. The City shall cooperate, as reasonably requested by CFP in
connection with the closing of any Refinancing, including providing customary legal opinions
and instruments.
(C) CFP shall pay the City's reasonable internal administrative and personnel costs
and all reasonable and properly incurred out-of-pocket professional costs in connection with a
Refinancing.
ARTICLE VI
NOTICE
SECTION 6.01. NOTICE ADDRESSES. Any notice, demand, communication or
request required or permitted hereunder shall be in writing and delivered in person or by certified
mail, return receipt requested as follows:
(A) In the case of the City, addressed to or delivered personally to the City of Boynton Beach,
at 100 East Boynton Beach Boulevard, Boynton Beach, Florida 33425-0310, Attention: City Manager
with a copy to James A. Cherof, City Attorney, 100 East Boynton Beach Boulevard, Boynton Beach,
Florida 33425-0310.; and
(B) In the case of CFP, addressed to or delivered personally to CFP at 18336 Minnetonka
Blvd., Suite #C, Deephaven, Minnesota 55391, Attention: Steve Collins, President, with a copy
to Daniel R. W. Nelson, Esquire, Best and Flanagan LLP, 60 South Sixth Street, Suite 2700,
Minneapolis, MN 55402.
SECTION 6.02. NOTICE EFFECTIVE DATES. Notices shall be effective when
received by each of the above-referenced individuals at the addresses specified above. Each parry shall
be responsible for notifying the other in writing of any changes in the respective addresses set forth
above.
SECTION 6.03. ROUTINE COMMUNICATIONS. Nothing contained in this Article
shall be construed to restrict the transmission of routine communications between representatives of the
City and CFP.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01. NO ASSIGNMENT WITHOUT CONSENT. Other than the
assignment of this Master Agreement to the Trustee for the CFP Bonds, which is hereby approved, this
Master Agreement is personal to each of the parties hereto, and neither party may assign or delegate any
rights or obligations hereunder without first obtaining the written consent of the other party.
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SECTION 7.02. CONFLICT OF INTEREST. CFP agrees to decline any offer of
work, whether as an independent contractor or employee, if such work would:
(A) Affect CFP's independent professional judgment with respect to its performance
of the Services; or
(B) In any way interfere with CFP's ability to discharge any of its obligations under this
Master Agreement. The initial determination of whether any offer of work would present such a conflict of
interest shall rest with CFP.However, CFP shall be obligated to notify the City and provide full disclosure
as to any possible adverse effects of such work as it relates to CFP's independent professional judgment or
the discharge of any of its obligations under this Master Agreement. Final decision as to whether any such
work proposes a prohibited conflict of interest shall rest with the City.
SECTION 7.03. COMPLIANCE WITH LAWS. In performing its obligations
pursuant to this Master Agreement, CFP shall, at its own expense, comply with all applicable
federal, state and local laws, regulations and codes. CFP shall be obligated to immediately notify the
City of any notice or allegation of wrongdoing or of any material third-party complaint relating to
this Master Agreement. Upon request of the City, the CFP shall fully cooperate in any investigation
by furnishing any documents, records or other testimonial evidence pertinent to such investigation.
SECTION 7.04. NONWAIVER. The failure of either party to insist upon strict
compliance with any provision of this Master Agreement, to enforce any right or to seek any remedy
upon discovery of any default or breach of the other party at such time as the initial discovery of the
existence of such noncompliance, right, default or breach shall not affect, nor constitute a waiver of,
any party's right to insist upon such compliance, exercise such right or seek such remedy with respect
to that default or breach or any prior, contemporaneous or subsequent default or breach.
SECTION 7.05. SEVERABILITY. The parties hereto intend all provisions of this
Master Agreement to be enforced to the fullest extent permitted by law. Accordingly, if a court of
competent jurisdiction finds any provision to be unenforceable as written, the parties intend and
desire that the court will reform the provision so that it is enforceable to the maximum extent
permitted by law. If, however, the court finds such provision to be illegal and not subject to
reformation, such provision shall be fully severable. In such event, this Master Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision was never a part hereof,
and the remaining provisions of this Master Agreement shall remain in full force and effect.
SECTION 7.06. SCHEDULES AND EXHIBITS. All Schedules and Exhibits
attached hereto shall be and hereby are incorporated into this Agreement as if fully .rewritten
herein.
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SECTION 7.07. AMENDMENT. No amendment of or modification to this Master
Agreement shall be valid unless and until executed in writing by the duly authorized
representatives of both parties to this Master Agreement.
SECTION 7.08. NO THIRD-PARTY BENEFICIARIES. This Master
Agreement is entered into for the exclusive benefit of CFP and the City, and CFP and the City
expressly disclaim any intent to benefit anyone not a party hereto.
SECTION 7.09. TIME IS OF THE ESSENCE. The City and the CFP each
acknowledge and agree that time is of the essence in the performance of this Master Agreement.
SECTION 7.10. NON-EXCLUSIVE. This Master Agreement shall be non-
exclusive. Accordingly, CFP shall be free to provide services to other clients, and City shall be
free to engage the services of other companies unrelated to CFP.
SECTION 7.11. PROHIBITION AGAINST FINANCIAL INTEREST. No
elected official or employee of the City shall have a financial interest, direct or indirect, in this
Master Agreement. For purposes of this Section, a financial interest held by the spouse, child or
parent of any elected official or employee of City shall be deemed to be a financial interest of
such elected official or employee of City.
SECTION 7.12. REMEDIES CUMULATIVE. No remedy set forth in this Master
Agreement or otherwise conferred upon or reserved to any party shall be considered exclusive of
any other remedy available to a party. Rather, each remedy shall be deemed distinct, separate and
cumulative and each may be exercised from time to time as often as the occasion may arise or as
may be deemed expedient.
SECTION 7.13. COMPLETE AGREEMENT. CFP specifically acknowledges
that in entering into and accepting this Master Agreement, CFP relies solely upon the
representations and agreements contained in this Master Agreement and no others. This Master
Agreement supersedes and replaces any and all prior agreements, negotiations and discussions
between the parties hereto with regard to the terms, obligations and conditions herein.
SECTION 7.14. REPRESENTATIVES NOT INDIVIDUALLY LIABLE. No
member, official, or employee of either party shall be personally liable to the other party, or any
successor in interest, in the event of any default or breach or on any obligations under the terms of
the Master Agreement.
SECTION 7.15. DISCLAIMER OF RELATIONSHIPS. The City and CFP
acknowledge that nothing contained in this Master Agreement nor any act by the City or CFP
shall be deemed or construed by any of them or by any third person to create any relationship of
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principal and agent, limited or general partner, or joint venture between or among the City, CFP
and/or any third party.
SECTION 7.16. ORIGINAL COPY. One original of this Master Agreement will
be executed and maintained by the City Clerk of the City. The City Clerk will provide a certified
copy to CFP.
SECTION 7.17. GOVERNING LAW; VENUE. This Master Agreement shall be
construed and enforced in accordance with the laws of the State of Florida, excepting its conflict
of law provisions. Venue for any litigation filed to enforce any right, obligation, or responsibility
of either party under this Master Agreement shall be filed in the appropriate state or federal court
located in Palm Beach County, Florida.
SECTION 7.18. SOVEREIGN IMMUNITY. Nothing in this Master Agreement
shall abrogate or waive the City's sovereign immunity or the provisions of Section 768.28,
Florida Statutes.
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IN WITNESS WHEREOF, the City has caused this Master Agreement to be duly
executed in its name and behalf and CFP has caused this Master Agreement to be duly executed
in its name and behalf on the dates set forth below.
CITY OF BOYNTON BEACH, FLORIDA
CITY OF BOYNTON BEACH
BY:
STEVEN B. GRANT, MAYOR
DATE:
ATTEST:
BY:
City Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
James A. Cherof
City Attorney
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CFP BOYNTON BEACH TOWN SQUARE, LLC, a
Florida limited liability company
BY:
By:
Thomas Anderson
DATE:
(SEAL)
ATTEST:
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APPENDIX A
FORM OF DEVELOPMENT AGREEMENT
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APPENDIX B-1
DESIGN-BUILDERS
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APPENDIX B-2
FORM OF DESIGN-BUILD CONTRACT
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APPENDIX C
FORM OF THE SITE LEASE
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APPENDIX D
FORM OF THE FACILITIES LEASE
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1.G.
AGENDA ITEMS
3/13/2018
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
REQUESTED ACTION BY COMMISSION: Motion to approve general terms of Ground Lease Agreement
and Facilities Lease Agreement between the City and CFP subject to approval by City Attorney.
EXPLANATION OF REQUEST:
In connection with the Town Square project the City is proposing to enter into the following:
• A ground lease with CFP, for CFP to lease the land being used for public use in order to construct
improvements on land; and
• A facilities lease where the City leases back the public buildings from CFP after construction for a
period of appro)amately 25 years and will pay annual lease payments;
• Once lease payments have been satisfied the buildings are turned over to the City.
HOW WILL THIS AFFECT CITY PROGRAMS OR SERVICES?
FISCAL IMPACT:
ALTERNATIVES:
Do not approve agreements
STRATEGIC PLAN:
STRATEGIC PLAN APPLICATION:
CLIMATE ACTION: No
CLIMATE ACTION DISCUSSION:
Is this a grant? No
Grant Amount:
ATTACHMENTS:
Type Description
D Attachment Ground Lease
D Attachment Facilities Lease
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GROUND LEASE AGREEMENT
between
CITY OF BOYNTON BEACH, FLORIDA
and
CFP BOYNTON BEACH TOWN SQUARE, LLC,
a Florida limited liability company
as Lessee
[Insert Date]
CITY OF BOYNTON BEACH TOWN SQUARE REDEVELOPMENT PROJECT
For The
[City Hall/Library][Police Station][Fire Station]
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GROUND LEASE AGREEMENT
THIS GROUND LEASE AGREEMENT ("Ground Lease"") is dated for reference purposes
[ ], and is made by and between the CITY OF BOYNTON BEACH, FLORIDA ("Lessor"),
and CFP BOYNTON BEACH TOWN SQUARE, LLC, a Florida limited liability company
("CFP" or"Lessee").
RECITALS
A. Lessor is the owner of the real estate described on EXHIBIT A attached hereto (the
"Property")located in the City of Boynton Beach,Florida.
B. Lessor intends to lease the Property to Lessee pursuant to this Ground Lease, and
Lessee intends to construct and equip thereon certain public improvements (the "CFP
Improvements"), all as more fully described on the [Preliminary][Final] Plans as shown in Exhibit
C of that certain Facilities Lease Agreement between the parties of even date herewith (the
"Facilities Lease").
C. Lessee anticipates that financing for the CFP Improvements will be pursuant to its
issuance of tax-exempt and taxable obligations, to be issued by the Public Facilities Authority (the
"CFP Bonds").
D. All capitalized terms used in this Ground Lease but not otherwise defined herein
(including these Recitals hereto) shall have the meanings given to such terms in the Facilities Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are mutually acknowledged, the parties hereto agree as follows:
1. The Demise.
1.1 Demise. In consideration of the rents, covenants and agreements contained in
this Ground Lease, Lessor hereby leases the Property to Lessee, and Lessee hereby leases the
Property from Lessor upon and subject to the conditions set forth in this Ground Lease, and subject
to all encumbrances and matters of record as of the date of this Ground Lease.
1.2 Use of the Property. The Property shall be used and occupied only for the
purpose of the development, operation, use, repair and maintenance of the CFP Improvements but,
until Lessee commences such use and occupancy, Lessor reserves the right to continue to use and
occupy the Property for its purposes at no cost. Lessee shall not use or permit the Property to be used
for any other purpose without the prior written approval of Lessor. Lessee is hereby authorized to
lease back to Lessor, and Lessor agrees to lease, the Property as improved by the CFP Project
pursuant to the Facilities Lease.
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1.3 Access and Utilities. Lessor and Lessee shall mutually cooperate regarding
the provision of reciprocal temporary and permanent pedestrian and vehicular access and utilities to,
from, and over the Property and the CFP Improvements to, from, and over adjacent lands of Lessor.
Lessor and Lessee shall execute such instruments as may be necessary to provide for such pedestrian
and vehicular access, and utilities at no additional cost to Lessee and agree to cooperate in the
location thereof.
1.4 Leasehold Title Insurance. The leasehold interest in the Property granted to
Lessee by Lessor shall be subject only to those exceptions set forth in the attached Exhibit B, based
upon a preliminary commitment for title insurance obtained by Lessee, a copy of which has been
previously provided to and approved by Lessor. The leasehold interest granted to Lessee by Lessor
shall be insured by a title insurance company acceptable to Lessor and Lessee, and the cost of the
policy of title insurance shall be a cost of the CFP Improvements.
2. Term.
2.1 Commencement. The term of this Ground Lease shall commence on the
"Effective Date," which is the date that this Ground Lease is fully executed, acknowledged and
delivered by Lessor and Lessee.
2.2 Duration. The term of this Ground Lease shall commence on the Effective
Date and shall terminate on the earlier of(i) September 1, 2044 or (ii) the date that the CFP Bonds
have been paid and retired and the Premises have been conveyed by Lessee to Lessor as set forth in
Section 4.4 of the Facilities Lease, unless sooner terminated hereunder(the "Term").
Notwithstanding the foregoing, if on the Expiration Date of the Facilities Lease, the
total Rent (as defined in the Facilities Lease) otherwise payable has not been fully paid as a result of
an Abatement of Rent (as defined in the Facilities Lease) and the CFP Bonds have not been fully
paid, then, as provided in the Facilities Lease, the term of the Facilities Lease may, at the option of
Landlord thereunder, be extended until the total Monthly Rent otherwise payable thereunder shall be
fully paid and the Bonds have been fully paid, except that the term of the Facilities Lease shall in no
event be extended beyond [ ]. In the event of such an extension, the Term of this Ground Lease
shall be deemed extended for the same period of time that the term of the Facilities Lease is
extended.
3. Rent. Lessee shall pay to Lessor as rent for the Term the sum of $1.00 payable in
whole in advance on or before the first day of the Term, the sufficiency and receipt of which is
hereby acknowledged by the parties.
4. Development of the CFP Improvements.
4.1 Construction. Lessor agrees that Lessee shall cause the CFP Improvements
to be constructed and developed on the Property pursuant to the Facilities Lease. Lessee shall not
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permit any development or construction on the Property except as contemplated by the Facilities
Lease or as otherwise specifically approved in writing by Lessor.
4.2 Ownership of Improvements. During the Term, the CFP Improvements and
all other improvements on the Property paid for by Lessee shall be owned by Lessee. The CFP
Improvements include no ownership interest in the Property other than Lessee's leasehold interest
hereunder. It is the intention of the parties that separation of the title to the Property from the title to
the CFP Improvements shall not change the character of the CFP Improvements as real property.
(a) No Conveyance of Improvements. During the term of this Ground Lease,
the CFP Improvements shall not be conveyed, transferred or assigned except for a lien to be granted
by the Lessee under the terms of the Leasehold Mortgage for the benefit of the Trustee, as further
described in that certain Indenture to be entered into in furtherance of the issuance of the CFP Bonds.
In its capacity as the beneficiary of the Leasehold Mortgage herein, the Trustee is hereafter referred
to as the "Leasehold Mortgagee." At all times, the owner of the leasehold interest of the Lessee under
this Ground Lease shall also be the owner of the CFP Improvements. Any attempted conveyance,
transfer or assignment, whether voluntarily or by operation of law or otherwise, to any person or
entity not in compliance with the preceding sentence shall be void and of no effect whatsoever.
Lessee shall allow no other party to construct any improvements on the Property.
(b) Vesting of Improvements in Lessor. Upon any termination of this Ground
Lease and payment in full and retirement of the CFP Bonds, all of Lessee's right, title and interest in
and to the CFP Improvements shall terminate and title to the CFP Improvements shall automatically
vest in the Lessor and the CFP Improvements shall be surrendered by Lessee to the Lessor. No
further deed or other instrument shall be necessary to confirm the vesting in the Lessor of title to the
CFP Improvements. However, Lessee shall upon request of the Lessor execute, acknowledge and
deliver to Lessor a quitclaim deed to convey all of Lessee's leasehold interest in the Property and its
fee ownership of the CFP Improvements constructed by Lessee thereon to Lessor and to confirm that
title to the CFP Improvements has vested in the Lessor.
5. Taxes and Utilities. Lessee shall be solely responsible for the payment of and shall
pay and discharge all Taxes and Utilities which are incurred as part of Project Costs as defined in the
Facilities Lease.
6. Condition of the Property.
6.1 "As Is". Lessee hereby accepts the Property "as is" in its existing condition;
provided, however, that except for environmental remediation, if any, specifically covered by the
approved Project Budget as defined in the Facilities Lease, Lessor shall be solely responsible for all
claims, judgments, damages, penalties, fines, expenses, liabilities or losses relating to the presence,
release or disposal of hazardous substances that(i) were present in the soil, groundwater or soil vapor
on or under the Property as of the Effective Date of this Ground Lease, (ii) are at any time present on
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any adjacent property owned or controlled by Lessor and which result in contamination of the
Property, or (iii) contaminate the Property as a result of the act or omission of Lessor or the act or
omission of any party for which Lessor is liable. Lessor's obligation shall include any costs of
investigation or remediation of such toxic or hazard substances that may be required by any federal,
state or local government agency. Lessor shall not be responsible for any claims, judgments,
damages, penalties, fines, expenses, liabilities or losses relating to the release or disposal of
hazardous substances on the Property during construction of the Project by Lessee or the act or
omission of Lessee's contractors or their subcontractors or any other party for which Lessee is liable,
and the responsibility for the same shall remain with Lessee.
6.2 Lessor's Right to Inspect. Lessor shall have the right to inspect the Property
at any time.
7. Liens; Security Interest.
7.1 Leasehold Mortgage. Except for a leasehold deed of trust ("Leasehold
Mortgage") to be granted by Lessee to Trustee in its capacity as beneficiary under the Leasehold
Mortgage as security for the CFP Bonds to be issued to finance the CFP Improvements or as
specifically approved in writing by Lessor, Lessee will not directly or indirectly create or permit to
be created or to remain, and will discharge any mortgage, lien, security interest, encumbrance or
charge on the Property, any part thereof, the CFP Improvements, Lessee's interest therein, or any
equipment, fixtures or personalty on the Property that is imposed by or as a result of the actions of
Lessee. The term "Leased Premises" as used in this Section 7 shall have the meaning assigned to it
in the Leasehold Mortgage.
7.2 Protection of Leasehold Mortgagee. If Lessee shall mortgage its leasehold
interest under this Ground Lease, then so long as such Leasehold Mortgage remains in full force and
effect the following provisions shall apply:
(a) Notice of Default. Lessor upon serving Lessee any notice of default
pursuant to the provisions of this Ground Lease shall also serve a copy of such notice upon
Leasehold Mortgagee at the address provided to Lessor. No notice to Lessee under this Ground Lease
shall be deemed to have been duly given unless and until a copy thereof has been served on such
Leasehold Mortgagee. From and after the date such notice has been given to Leasehold Mortgagee,
such Leasehold Mortgagee shall have the same period, after the giving of such notice upon it, for
remedying any default or acts or omissions which are the subject matter of such notice, or causing
the same to be remedied, as is given Lessee after the giving of such notice to Lessee under this
Ground Lease,plus in each instance the additional periods of time specified in subsections (b) and(c)
of this Section 7.2 to remedy, commence remedying or cause to be remedied, the defaults or acts or
omissions which are specified in such notice.
(b) Right To Cure. Leasehold Mortgagee shall have the right, but not the
obligation, to remedy such default or cause the same to be remedied for a period of ninety (90) days
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after the expiration of the cure period, if any, provided for under this Ground Lease, for Lessee to
remedy same and Lessor shall accept such performance by or at the instance of Leasehold Mortgagee
as if the same had been made by Lessee.
(c) Extended Cure Period. If the default is reasonably susceptible of
cure, but cannot reasonably be remedied within ninety (90) days, Lessor shall not terminate this
Ground Lease, so long as (i) defaults in the payment of money under this Ground Lease are cured
within ninety (90) days and all rent and all other items required to be paid by Lessee under this
Ground Lease are paid as and when the same becomes due and payable, and(ii) the cure for any non-
monetary default under this Ground Lease has commenced, and is thereafter diligently and in good
faith continuously prosecuted to completion. Such cure period shall include any time required to
obtain possession of the Leased Premises by foreclosure of the Leasehold Mortgage or by other
appropriate means by reasonable diligence, or until such earlier time as all defaults of Lessee are
cured. Nothing in this clause (c), however, shall be construed to extend this Ground Lease beyond the
Term, nor to require a Leasehold Mortgagee to continue such foreclosure proceedings after all
defaults are cured. Once all defaults are cured, this Ground Lease, shall continue in full force and
effect as if Lessee had not defaulted.
(d) New Ground Lease. In the event of the termination of this Ground
Lease prior to the expiration of the Term for any reason, including a termination by reason of a
bankruptcy by Lessee, Lessor shall serve upon the Leasehold Mortgagee written notice that the
Ground Lease has been terminated together with a statement of any and all sums which would at the
time be due under this Ground Lease but for such termination and of all other defaults, if any, under
this Ground Lease then known to Lessor. Leasehold Mortgagee shall thereupon have the option, but
shall in no event be obligated, to obtain a new lease in accordance with and upon compliance with
each of the following terms and conditions:
(1) Leasehold Mortgagee shall within ninety (90) days
following service of notice of termination of this Ground Lease,provide written notice to Lessor that
it desires to enter into a new lease of the Leased Premises with Lessor; and
(2) Lessor shall enter into a new lease which shall be effective
as of the date of the termination of this Ground Lease and shall be for the remainder of the Term of
this Ground Lease and at the Rent and upon all other terms, covenants and conditions as this Ground
Lease (excluding requirements which are inapplicable or have already been fulfilled).
(e) Notices. Any notice or other communication which Lessor shall
desire or is required to give or serve upon Leasehold Mortgagee shall be in writing and shall be
served by registered mail addressed to Leasehold Mortgagee at the address set forth in such
Leasehold Mortgage a copy of which has been provided to Lessor or such other address as shall be
designated by Leasehold Mortgagee by notice in writing given to Lessor by registered mail. Any
notice or other communication which such Leasehold Mortgagee shall desire or is required to give
or serve upon Lessor shall be in writing and shall be served by registered mail addressed to Lessor
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at the address set forth in Section 15 of this Ground Lease or such other address as shall be
designated by Lessor by notice in writing given to Leasehold Mortgagee by registered mail.
(f) Amendments. No agreement between Lessor and Lessee modifying,
canceling or surrendering this Ground Lease shall be effective without(i) the prior written consent of
the Leasehold Mortgagee, acting upon the direction of the holders of a majority in aggregate
principal amount of the Bonds and (ii) a written opinion from nationally recognized bond counsel
that any such modification, cancelation or surrender will not have an adverse effect on the tax exempt
status of interest on the Bonds.
(g) Insurance Clauses. A standard mortgagee clause naming Leasehold
Mortgagee may be added to any and all insurance policies required to be carried by Lessee hereunder
and the Leasehold Mortgage shall so provide.
(h) Leasehold Mortgage Not a Transfer. For the purposes of Section
16 of this Ground Lease, the making of a Leasehold Mortgage shall not be deemed to constitute
an assignment or transfer of this Ground Lease or the leasehold estate hereby created, nor shall
any Leasehold Mortgagee, as such, be deemed to be an assignee or transferee of the Lessee's
interest under this Ground Lease or of the leasehold estate created hereby so as to require such
Leasehold Mortgagee as such to assume the performance of any of the terms, covenants or
conditions on the part of the Lessee to be performed prior to foreclosure of the Leasehold
Mortgage; provided, however, that upon foreclosure of the Leasehold Mortgage, the Leasehold
Mortgagee or any purchaser at any sale of the Lessee's rights under this Ground Lease in any
proceedings for the foreclosure of any Leasehold Mortgage, or the assignee or transferee of the
Lessee's rights under this Ground Lease created under any instrument of assignment or transfer in
lieu of foreclosure of any Leasehold Mortgage, shall be deemed to have agreed to perform all of
the terms, covenants and conditions on the part of the Lessee to be performed hereunder (except
any indemnification obligations of the Lessee) from and after the date of such purchase and
assignment.
(i) Leasehold Mortgagee's Right to Assign. Notwithstanding any
provision of this Ground Lease to the contrary, Leasehold Mortgagee may upon acquiring the
Lessee's interest under this Ground Lease pursuant to foreclosure, assignment in lieu of foreclosure
or other proceedings may, upon acquiring the Lessee's interest under this Ground Lease, or a new
lease as provided above, and without further consent of Lessor sell and assign such leasehold interest
on such terms and to such persons and organizations as are acceptable to such Leasehold Mortgagee
and thereafter be relieved of all obligations under this Ground Lease, which accrue after the date of
such sale or assignment so long as each of the following conditions are met:
(1) There is no default on the part of Leasehold Mortgagee
under this Ground Lease and no event that with the giving of notice, the passage of time, or both,
would constitute an Event of Default by Leasehold Mortgagee under this Ground Lease, all such
defaults having been cured to the reasonable satisfaction of Lessor prior to the effective date of such
assignment;
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(2) If such assignee will not itself manage the CFP
Improvements, its proposed operator shall have sufficient experienced and competent personnel to
operate, manage, maintain and repair the CFP Improvements in accordance with the requirements of
this Ground Lease;
(3) As part of such assignment the assignee shall assume the
obligations of Lessee under this Ground Lease by executing, acknowledging and recording one or
more assumption agreements in form and substance reasonably satisfactory to Lessor. The assignee
shall thereafter have all the rights and shall perform all the duties and obligations of Lessee under this
Ground Lease; and
(4) No Leasehold Mortgagee or assignee shall have any
liability under this Ground Lease beyond its interest in this Ground Lease, even if it becomes Lessee.
Any such liability shall: (a) not extend to any defaults that occurred before Leasehold Mortgagee or
such Assignee took title to Lessee's interest under this Ground Lease; and (b) terminate if and when
any such Leasehold Mortgagee or Assignee assigns (and the assignee assumes) this Ground Lease.
Any such sale or assignment shall not release Leasehold Mortgagee or such Assignee from any
claims or obligations under this Ground Lease, which arose while Leasehold Mortgagee or any of its
affiliates or Assignee held the Lessee's interest under this Ground Lease or was in possession of the
Premises.
(j) Rejection of Unexpired Ground Lease by Lessee or Lessee's
Bankruptcy Trustee. If Lessee or Lessee's Bankruptcy Trustee rejects this Ground Lease during
the Term in a proceeding under Section 365 of the United States Bankruptcy Code or similar or
successor statute, such rejection will have no effect on the rights of Leasehold Mortgagee under
this Section 7.2, which rights will remain in full force and effect notwithstanding such rejection as
if the same were provided for in a separate and independent agreement between Lessor and such
Leasehold Mortgagee, and such Leasehold Mortgagee shall have the right to a new Ground Lease
on the same terms and conditions set forth in Section 7.2 above. The provisions set forth in
Section 7.2 of this Ground Lease granting Leasehold Mortgagee certain rights are for the express
benefit of each such Leasehold Mortgagee for the term set forth in this Section 7.2 and are
independent of the other provisions of this Ground Lease.
(k) No Merger. So long as any Leasehold Mortgage is in existence,
unless the Leasehold Mortgagee otherwise consents in writing at the direction of the holders of a
majority in aggregate principal amount of the Bonds, the fee title to the Leased Premises and the
leasehold estate of Lessee therein created by this Ground Lease shall not merge but shall remain
separate and distinct, notwithstanding the acquisition of said fee title and said leasehold estate by
Lessor or by Lessee or by a third party, by purchase or otherwise.
(1) Further Assurances. Upon request from Lessee or any Leasehold
Mortgagee (prospective or current), Lessor shall promptly and in writing, under documentation
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reasonably satisfactory to Lessor and the requesting party: certify that this Ground Lease is in full
force and effect, that to Lessor's knowledge no Default exists, the date through which Rent has been
paid, and such other similar matters as may be reasonably requested, all subject to any then
exceptions reasonably specified in such certificate.
(m) Miscellaneous. Notwithstanding anything to the contrary in this
Ground Lease, Leasehold Mortgagee: (a) may exercise its rights through an affiliate, assignee,
designee, nominee, subsidiary or other person, acting in its own name or in Leasehold Mortgagee's
name (and anyone so acting shall automatically have the same protections, rights, and limitations of
liability as Leasehold Mortgagee); (b) shall never be obligated to cure any Lessee Default; (c) may
abandon such cure at any time; and (d) may withhold its consent or approval for any reason when
acting upon the direction of the holders of a majority in aggregate principal amount of the Bonds.
Any such consent or approval must be in writing.
8. Indemnity and Hold Harmless.
8.1 Indemnification by Lessor. Lessor shall indemnify, defend and hold
harmless Lessee and its elected and appointed officers, officials, representatives, employees, and
agents (the "Indemnified Lessee Parties") from and against any and all liability, demands, liens,
damages, claims, causes of action, expenses, and fees (including reasonable attorney's fees and costs
and expert witness fees) for bodily injury, property damage, and death (hereinafter collectively
referred to as "Liabilities"), arising out of or relating to the negligent acts, errors, or omissions of
Lessor including, without limitation, any breach of this Ground Lease except to the extent that such
Liabilities are caused by the negligence or willful misconduct of Lessee.
8.2 Indemnification by Lessee. Lessee shall indemnify, defend and hold
harmless Lessor and its officers, employees, and agents (the "Indemnified Lessor Parties") from and
against any and all Liabilities (as defined in Section 8.1), arising out of or relating to the negligent
acts, errors, or omissions of Lessee including, without limitation, any breach of this Ground Lease
except to the extent that such Liabilities are caused by the negligence or willful misconduct of
Lessor.
8.3 Survival. The indemnification provisions of this Section shall remain in full
force and effect and survive the termination and/or expiration of this Lease.
9. Minimum Scope of Insurance Coverage for Lessee. For so long as the Facilities
Lease remains in effect, the insurance provisions thereof shall be deemed to be substituted in their
entirety for this Section 9. At any other time, the following provisions shall be applicable.
9.1 Property Insurance. In the event that Lessor is not maintaining property
insurance with respect to all improvements constructed on the Property, Lessee shall maintain
property insurance insuring all improvements constructed on the Property, as well as all of Lessor's
personal property and trade fixtures located on the Property as part of the Project, against loss or
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damage by fire and other perils currently covered by a special causes of loss commercial property
insurance form. Lessee shall also cause the improvements to be insured against the perils of
earthquake and flood, either as part of the aforementioned property insurance, or under a separate
policy or policies; provided, however, that such coverage shall be maintained only so long as it is
available at a commercially reasonable cost and in coverage amounts which are commercially
available,but Lessee shall not be in default under this Ground Lease if coverage is no longer written,
is unavailable for comparable properties or is not available at commercially reasonable premium
amounts. The property insurance policy shall meet the requirements set forth in this Section and in
the Facilities Lease.
9.2 Lessee's Coverages. Lessee shall at a minimum maintain: Commercial
General Liability Insurance, covering Commercial General Liability with a limit of not less than
$1,000,000 combined single limit per occurrence; $2,000,000 aggregate. In addition, Lessee shall
maintain workers' compensation coverage as required by the laws of the State of Florida, statutory
limits.
9.3 Deductibles and Self-Insured Retentions. Any deductibles or self-insured
retentions in insurance coverage maintained by Lessee must be declared to and approved by Lessor.
The deductible and/or self-insured retention of the policies shall not limit or apply to Lessor and shall
be the sole responsibility of Lessee.
9.4 Other Insurance Provisions. The insurance policies required by this Ground
Lease are also to contain or be endorsed to contain the following provisions where applicable:
(a) Liability Policies:
(1) Lessor, Leasehold Mortgagee (i.e., Trustee) and their
respective officers, officials, employees and agents are to be covered as an additional insured as
respects liability arising out of activities performed by or on behalf of Lessee in connection with this
Lease.
(2) Lessee's insurance coverage shall be primary insurance as
respects Lessor, its officers, officials, employees and agents. Any insurance and/or self-insurance
maintained by Lessor, Leasehold Mortgagee (i.e., Trustee) and their respective officers, officials,
employees and agents shall not contribute with Lessee's insurance or benefit Lessee in any way.
(3) Lessee's insurance shall apply separately to each insured
against whom a claim is made and/or lawsuit is brought, except with respect to the limits of the
insurer's liability.
(b) All Policies. Coverage shall not be suspended, voided, canceled,
reduced in coverage or in limits except by the reduction of the applicable aggregate limits by claims
paid, until after thirty (30) days'prior written notice has been given to Lessor.
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(c) Acceptability of Insurers.Unless otherwise approved by Lessor:
(1) Insurance is to be placed with insurers with a Best's rating
of no less than ANIII, or, if not rated by Best's with a rating in one of the two highest categories
maintained by Standard&Poor's Rating Group and Moody's Investors Service.
(2) If at any time any of the foregoing policies shall fail to
meet the above minimum standards, Lessee shall, upon notice to that effect from Lessor, promptly
obtain a new policy and shall submit the same to Lessor with certificates and endorsements for
approval.
9.5 Waiver of Subrogation. Lessee shall cause its property insurance carrier(s)
to release and waive all rights of subrogation against Lessor to the extent a loss is covered by
property insurance in force; provided, however, that this Section 9.5 shall be inapplicable if it would
have the effect of invalidating any insurance coverage of Lessee.
to. Eminent Domain. In the event of any taking of the Property, partial or whole,
Lessor shall be entitled to the entire award judgment or settlement from the condemning authority
for the value of the Property taken by the condemning authority, and any taking of the
Improvements, partial or whole, shall be subject to the provisions of Section 20 of the Facilities
Lease.
11. Events of Default by Lessee and Lessor's Remedies.
11.1 Events of Default. The following occurrences or acts shall constitute an
event of default under this Ground Lease:
(a) Failure to Perform. If Lessee shall (i) default in making payment
when due of any rent or any other amount payable by Lessee hereunder; or (ii) default in the
observance or performance of any other substantial provision of this Ground Lease to be observed
or performed by Lessee hereunder; and, in either case, if such default shall continue for thirty (30)
days, in each case after Lessor shall have given to Lessee notice specifying such default and
demanding that the same be cured, or, with respect to a default under subsection (ii), if by reason
of the nature thereof such default cannot be cured by the payment of money and cannot with due
diligence be wholly cured within such period of thirty (30) days, if Lessee shall fail to proceed
promptly to cure the same and thereafter prosecute the curing of such default and with all due
diligence, it being intended in connection with a default not susceptible of being wholly cured with
due diligence within such period that the time within which to cure the same shall be extended for
such period as may be necessary to complete the curing of the same with all due diligence; or
(b) Lessee's Financial Condition. If Lessee shall make a general
assignment for the benefit of creditors, or shall file a petition in bankruptcy, or shall be adjudicated as
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bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or future statute, law or
regulation, or shall file an answer admitting or shall fail seasonably to contest the material allegations
of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Lessee or any material part of its properties.
11.2 Remedies Upon Lessee's Default. In the event of any default by Lessee as
defined hereinabove which default remains uncured after the expiration of the respective period set
forth above, Lessor may exercise any remedy which may be available to Lessor at law or equity,
including but not limited to actions for damages, and/or injunctive relief, including termination of
this Ground Lease; provided, that, unless the CFP Bonds have been paid in full, Lessor may not
terminate this Ground Lease or the Facilities Lease prior to the end of the Term.
11.3 Cumulative Rights and Remedies. The rights and remedies reserved to
Lessor herein, including those not specifically described, shall be cumulative, and except as provided
by Florida statutory law in effect at the time, Lessor may pursue any and all such rights and remedies
at the same time or independently.
11.4 No Waiver. No delay or omission of Lessor to exercise any right or remedy
shall, except as expressly provided herein, be construed as a waiver of any such right or remedy or
of any default by Lessee hereunder. The acceptance by Lessor of rent shall not be a waiver of any
preceding breach or default by Lessee of any provision hereof, other than the failure of Lessee to
pay the, particular rent accepted, regardless of Lessor's knowledge of such preceding breach or
default at the time of acceptance of such rent, or, except as expressly set forth herein, a waiver of
Lessor's right to exercise any remedy available to Lessor by virtue of such breach or default.
11.5 Attorneys' Fees. In the event suit is brought by Lessor or Lessee relating to
this Lease, including for the breach of any covenant or condition of this Lease, the prevailing party
shall be entitled to a reasonable sum for attorneys' fees, witness fees, and court costs, including
costs of appeal.
12. Quiet Enjoyment. If and so long as Lessee shall pay all rent and all other amounts
payable by Lessee hereunder whenever the same shall become due and shall keep all of the
covenants and conditions required by it to be kept during this Ground Lease and shall perform all
of its other obligations hereunder, Lessor covenants and agrees that, except as may otherwise be
provided in the Facilities Lease, Lessor will not interfere with the peaceful and quiet occupation
and enjoyment of the Property by Lessee, which occupation and enjoyment shall be without
hindrance, ejection or molestation by Lessor.
13. Compliance with Laws. Lessee shall not use the Property or permit anything to be
done in or about the Property which will in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted or promulgated.
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Lessee shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may hereafter be in force, and
obtain all permits, licenses or other approvals required by governmental agencies or bodies. Lessee
shall further comply with the requirements of any board or fire insurance underwriters or other
similar bodies now or hereafter constituted, relating to, or affecting the condition, use or occupancy
of the Property.
14. Waiver Limitations. The waiver by either party of any term, covenant or condition
herein contained on the part of the other party to be performed shall not be deemed a waiver of such
term, covenant or condition for any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance by Lessor of Lessee's performance of any
obligations hereunder shall not be deemed to be a waiver of any preceding breach by Lessee of any
term, covenant or condition of this Ground Lease.
15. Notices. All notices or requests required or permitted under this Ground Lease shall
be in writing, shall be personally delivered or sent by certified mail, return receipt requested, postage
prepaid, by nationally recognized overnight courier or by confirmed email transmission and shall be
deemed given when so delivered, received or email (provided sender obtains a confirmation of
receipt). All notices or requests shall be sent as follows:
If to Lessor: City of Boynton Beach
Attention: City Manager
100 East Boynton Beach Boulevard
Boynton Beach,Florida 33425-0310
Email: [�
If to Lessee: CFP Boynton Beach Town Square, LLC
18336 Minnetonka Boulevard, Suite 9C
Deephaven, Minnesota 55391
Email: [ ]
Any party may change the address to which notices shall be sent by notice to the other party in the
manner and with the effect set forth in this Section 15.
16. Assignment and Subleasing.
16.1 Subleasing. Lessor and Lessee intend that Lessee shall enter into the
Facilities Lease with Lessor. Any other proposed subleases of the Property shall be subject to the
review and written approval of Lessor.
16.2 Assignment Except for the Leasehold Mortgage granted by Lessee to the
Trustee to secure the repayment of the CFP Bonds for the CFP Improvements, Lessee shall not
assign, mortgage, or encumber this Ground Lease or delegate the duties of Lessee under this Ground
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Lease without the prior written consent of Lessor. A consent to one assignment shall not be deemed
to be a consent by Lessor to any subsequent assignment by another person. This Ground Lease shall
not, nor shall any interest of Lessee herein, be assignable by operation of law, without prior written
consent of Lessor.
17. Miscellaneous.
17.1 Time of Essence. Time is of the essence in regard to performance of the
covenants and agreements, stated herein.
17.2 No Joint Venture or Agency. Nothing contained in this Ground Lease nor
any of the acts of the parties hereto shall be construed nor is it the intent of the parties, to create a
joint venture or partnership between Lessor and Lessee, nor is either party the agent or representative
of the other, and nothing in this Ground Lease shall be construed to create any such agency
relationship or to hold either party liable to anyone for goods delivered or services performed at the
request of the other party.
17.3 Amendments. No change in or addition to or waiver or termination of this
Ground Lease any part hereof, shall be valid unless made in writing and signed by or on behalf of the
party charged therewith. Lessor and Lessee agree to negotiate in good faith any amendments to this
Ground Lease that may be requested or required in connection with the issuance of the Bonds to
finance the Project.
17.4 Governing Law. This Ground Lease shall be construed in accordance with
and governed by the laws of the State of Florida.
17.5 Headings. The article, section and paragraph headings herein contained are
for the purposes of identification and reference convenience only and shall not be considered in
construing this Ground Lease.
17.6 Successors and Assigns. Subject to the provisions hereof restricting the
sublease or assignment by Lessee, all the terms and provisions of this Lease shall be binding upon
and to the benefit of and be enforceable by the parties and the successors and assigns of the parties.
17.7 No Merger. In no event shall the leasehold interest of Lessee hereunder
merge with any estate of Lessor in or to the Property or the leasehold interest of Lessor under the
Facilities Lease. In the event that Lessor acquires the leasehold interest of Lessee, such leasehold
interest shall not merge with Lessor's fee interest in the Property or the leasehold interest of
Lessor under the Facilities Lease, and this Ground Lease and the Facilities Lease shall remain in
full force and effect.
17.8 Counterparts; Recording of Memorandum. This Ground Lease may be
executed in several counterparts, each of which shall be deemed an original for all purposes. Either
Lessor or Lessee shall have the right to record a memorandum of this Ground Lease in a form
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comparable to that provided in the Facilities Lease and the parties shall cooperate in execution of
such memorandum.
17.9 Schedule of Exhibits. This Ground Lease includes the following exhibits
attached hereto and incorporated herein by this reference.
EXHIBIT A Property Legal Description
EXHIBIT B Permitted Encumbrances
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IN WITNESS WHEREOF, the City has caused this Ground Lease to be duly executed in its
name and behalf and CFP has caused this Ground Lease to be duly executed in its name and behalf on the
dates set forth below.
CITY OF BOYNTON BEACH,FLORIDA
CITY OF BOYNTON BEACH
BY:
STEVEN B. GRANT, MAYOR
DATE:
ATTEST:
BY:
City Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
James A. Cherof
City Attorney
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CFP BOYNTON BEACH TOWN SQUARE, LLC, a
Florida limited liability company
BY:
By:
Thomas Anderson
DATE:
(SEAL)
ATTEST:
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
TOWN SQUARE PROPERTY
A PARCEL OF LAND LYING IN SECTION 28, TOWNSHIP 45 SOUTH, RANGE 43 EAST, SAID
LAND BEING DESCRIBED AS FOLLOWS:
1) LOTS 2 THRU 25, OF THE PLAT OF BOYNTON CENTER, AS RECORDED IN
PLAT BOOK 8, PAGE 12, OF THE PUBLIC RECORDS OF PALM BEACH
COUNTY, FLORIDA, LESS RIGHT OF WAY FOR N.E. 2ND AVENUE (BOYNTON
BEACH BLVD) AND SEACREST BLVD.
2) ALL OF LOTS 1 THRU 6, AND THAT PORTION OF PUBLIC SCHOOL TRACT
SHOWN IN BLOCK 14; ALL OF LOTS 1-6, BLOCK 15; AND ALL OF LOTS 1-6,
BLOCK 16, LESS THE RIGHT-OF-WAY FOR SEACREST BOULEVARD, AND
SUBJECT TO EASEMENTS AND RIGHTS OF WAY OF RECORD, LYING IN THE
PLAT OF SAWYER'S ADDITION TO THE TOWN OF BOYNTON IN PLAT BOOK
1, PAGE 69, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA.
NORTH-EAST IST STREET PROPERTY (Fire Station)
LOTS 11, 12, 13 AND 14 OF BLOCK 3, TOWN OF BOYNTON BEACH, ACCORDING TO THE
PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 23 OF THE PUBLIC RECORDS OF
PALM BEACH COUNTY, FLORIDA.
HIGH RIDGE ROAD PROPERTY (Police Station)
[To Be Provided]
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EXHIBIT B
PERMITTED ENCUMBRANCES
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FACILITIES
LEASE AGREEMENT
between
CFP BOYNTON BEACH TOWN SQUARE, LLC,
a Florida limited liability company
as Landlord
and
CITY OF BOYNTON BEACH, FLORIDA
as Tenant
[Insert Date]
CITY OF BOYNTON BEACH TOWN SQUARE REDEVELOPMENT PROJECT
For The
[City Hall/Library][Police Station][Fire Station]
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FACILITIES
LEASE AGREEMENT
THIS FACILITIES LEASE AGREEMENT ("Lease") is dated for reference purposes
[ ] and is made by and between CFP BOYNTON BEACH TOWN SQUARE, LLC, a
Florida limited liability company ("CFP" or "Landlord") and the CITY OF BOYNTON
BEACH, FLORIDA ("Tenant"). Landlord and Tenant agree as follows:
RECITALS
A. Landlord is the lessee under that certain Ground Lease dated [ ] (the
"Ground Lease"), with Tenant as lessor, pursuant to which Landlord leases that certain real
property located in the City of Boynton Beach, Florida (the "Property"), more specifically
described on the attached EXHIBIT A.
B. Tenant desires to have Landlord construct on the Property, municipal buildings
and associated improvements (the "CFP Improvements" and together with the Property,
collectively, the "Project"). The following improvements including, without limitation, any and
all design, planning, surveying, engineering, permitting, and pre-development services and
expenditures related thereto, and all related and supporting infrastructure, comprise the CFP
Improvements:
[City Hall/Library Description][Police Station Description][Fire Station
Description]
C. Landlord and Tenant desire to enter into this Lease whereby Tenant shall lease
and, upon substantial completion, shall occupy the Premises (as defined below) at the rent and
subject to all of the terms, covenants and conditions set forth herein.
D. Landlord will engage E2L Real Estate Solutions, LLC, a Delaware limited
liability company, as Developer to develop, oversee and manage the design, permitting and
construction phases of the Project in accordance with the terms and conditions of a
Development Agreement and for a Total Project Price as provided herein, all of which shall
be subject to Tenant's Concurrence as provided herein.
E. Landlord anticipates that financing for the Project will be pursuant to its issuance
of tax-exempt and taxable bonds (the "Bonds"). Upon payment in full of the Bonds, or earlier
defeasance thereof, Landlord will convey the Premises to Tenant for no additional consideration.
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein and other valuable consideration, receipt of which is hereby
acknowledged, the parties hereby covenant and agree as follows:
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1. Definitions. As used in this Lease, the following capitalized terms shall have the
following meanings:
1.1 "Abatement" means a reduction in the Rent payable by Tenant hereunder
as a result of damage, destruction or partial condemnation of the Premises or a defect in
Landlord's title to the Premises not resulting from Tenant's ownership of the Property, any of
which results in substantial interference with Tenant's right to use and occupancy of the
Premises.
1.2 "ADA" means the Americans With Disabilities Act of 1990, as amended
from time to time.
1.3 "Additional Rent" means any and all sums of money or other charges
required to be paid by Tenant under this Lease other than Periodic Rent, regardless how
designated hereunder, and shall include any applicable sales tax thereon.
1.4 "Administrative Fees and Expenses" shall have the meaning set forth in
the Indenture.
1.5 "Architect" means Baker Barrios, the architect for the Project selected by
Haskell Construction, pursuant to that certain Design Build Construction Contract dated [ ]
with the Tenant's Concurrence (as defined in Section 1.70 below).
1.6 "Bond Closing" refers to the date the Bond proceeds are available to the
Trustee.
1.7 "Bonds" means those tax-exempt and taxable obligations to be issued by
Landlord for design, permitting and construction of the Project pursuant to the Indenture. From
the proceeds of such Bonds, Landlord intends to pay all costs associated with the Ground Lease
of the Property, the development of the Project for the Total Project Price, all costs of issuing the
CFP Bonds, [and capitalized interest during the construction period].
1.8 "Business Day" shall have the meaning set forth in the Indenture.
1.9 "Calendar Year" means a calendar year commencing with January 1 and
ending with December 31.
1.10 "Code" means the Internal Revenue Code of 1986, as amended, or any
successor federal income tax statute or code. Any reference to a provision of the Code shall
include the applicable Department of Treasury regulations.
1.11 "Construction Contracts" means (i) the Design-Build Contract and (ii)
all other contracts for construction services entered into between Landlord, or Developer, on
behalf of and acting as agent for Landlord, and any Contractor, for construction of any portion of
the Project not covered by the Design-Build Contract.
1.12 "Construction Documents" mean the Construction Drawings and
Detailed Specifications approved, in writing, by Landlord with Tenant's Concurrence, for the
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construction of the Project, including technical drawings, schedules, diagrams, plans and
specifications setting forth in detail the requirements for construction of the Project and
providing information customarily required for the use of the building trades.
1.13 "Construction Drawings" means drawings setting forth in detail the
requirements for the construction of the Project. As used herein, "Construction Drawings"
include all graphic and pictorial documents depicting the design, location and dimensions of the
elements of the Project (including Tenant Improvements) and include plans, elevations, sections,
details, schedules and diagrams for the Project, all of which shall be consistent with the Project
Requirements. The general design and location of the improvements are based upon the general
design and concepts presented to Tenant by Landlord in Tenant's Request for Proposal process.
1.14 "Contract Documents" means the contract with the Architect,
Construction Documents, the Construction Contracts and the other documents identified as
Contract Documents in the Design-Build Contract, all of which shall be subject to Tenant's
Concurrence as defined herein.
1.15 "Contractors" means the Design-Builder and any other construction
contractors with whom Landlord enters into direct contracts upon the written recommendation of
Developer, or with whom Developer on behalf of and acting as the Landlord's agent, enters into
contracts; provided, however, that all such contracts shall be entered into with Tenant's
Concurrence.
1.16 "Design-Build Contract" means the DBIA Document No. 530, Standard
Form of Agreement between Owner and Design Builder — Cost plus Fee with an option for
Guaranteed Maximum Price (2010 Edition), dated [ ] between Owner and Design-Builder
for construction of the Project.
1.17 "Design-Builder" means: Haskell Construction, for the City Hall and
Library; H7 High Construction for the High Ridge Road Property Improvements; H7 High
Construction for the North East 1st Street Property Improvements; and Haskell Construction for
the Infrastructure Improvements.
1.18 "Detailed Specifications" means all written detailed requirements for
materials, equipment, construction systems, standards and workmanship for the construction of
the Proj ect.
1.19 "Developer" means E2L Real Estate Solutions, LLC, a Delaware limited
liability company, and its successors and permitted assigns under the Development Agreement.
1.20 "Development Agreement" means that certain Development Agreement
of even date herewith, as amended from time to time, between Developer and Landlord which
provides for the development, design, permitting and construction of the Project, and which has
received Tenant's Concurrence.
1.21 "Effective Date" means the date that this Lease is fully executed,
acknowledged and delivered by Landlord and Tenant.
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1.22 "Environmental Laws" means all federal, state, and local laws,
statutes, rules, regulations, ordinances, and codes relating to the regulation or protection of
human health, safety, the environment, and natural resources, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §§ 9601
et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.), the Clean Air Act (42 U.S.C. §§
7401 et seq.), the Clean Water Act (33 U.S.C. §§ 1251 et seq.), the Solid Waste Disposal Act
(42 U.S.C. §§ 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the
Emergency Planning and Community Right-To-Know Act (42 U.S.C. §§ 11001 et seq.), the
Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.), and any similar or comparable
state or local laws, as such federal, state, and local laws exist as of the Effective Date and as
amended in the future.
1.23 "Event(s) of Default" has the meaning set forth in Section 22 of this
Lease.
1.24 "Expiration Date" means the earlier of September 1, 2044, or the date
on which this Lease terminates in accordance with its terms; provided, however, that the
Expiration Date may be extended as provided in Section 3 in the event of an Abatement of Rent
under Section 19.4 or Section 20.2 below.
1.25 "Fair Market Rent" means the fair market rent (other than rent to cover
current operating expenses) payable for office premises in Boynton Beach, Florida comparable
to the Premises hereunder, determined as of the Effective Date. The Fair Market Rent shall be
determined by a qualified MAI appraiser selected by Tenant and reasonably acceptable to
Landlord. The Fair Market Rent shall be calculated as of the Effective Date and thereafter shall
be re-calculated in the event of damage, destruction or partial condemnation of the Premises as
contemplated in Sections 19 and 20, or in the event of a defect in Landlord's title to the Premises
not resulting from Tenant's ownership of the Property and resulting in substantial interference
with Tenant's right to use and occupancy of the Premises.
1.26 "Final Acceptance" means that the following events have occurred with
respect to the Project:
(a) The City of Boynton Beach, Florida has issued all certificates of
occupancy for the Project.
(b) Each Contractor has issued its "Certificate of Substantial
Completion" together with its "Affidavit of Payment of Debts and Claims" ( A Forms 706
and 706A), together with final waivers and releases of lien, in form satisfactory to Landlord,
from Contractors and all subcontractors who have performed work on site.
(c) All Punch List items for the Project have been completed to the
reasonable satisfaction of Landlord with Tenant's Concurrence, but if Landlord consents to
Final Acceptance, with Tenant's Concurrence, without completion of all Punch List items,
Landlord and Design-Builder shall have agreed upon the estimated cost of any Punch List
items remaining to be completed and [150'/0 of such estimated costs] shall be withheld by the
Trustee in the Project Costs Account until the Punch List items have been completed to the
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reasonable satisfaction of Landlord with Tenant's Concurrence. When the Punch List items
have been completed, and Design-Builder has so notified Landlord, upon Landlord's
reasonable satisfaction (with Tenant's Concurrence) that such Punch List items have been
completed, Landlord shall deliver its requisition to the Trustee for payment of such funds being
withheld by Trustee.
(d) Design-Builder has submitted its application for Final Payment
together with evidence reasonably satisfactory to Landlord that all construction costs for the
Project have been paid in full including evidence of full payment for any personal property
installed on the Property as part of the Project Costs.
(e) The period for filing construction liens for the Project has expired
and none have been filed or releases or discharges of construction liens in form and substance
satisfactory to Landlord have been obtained by Design-Builder from all Contractors in
accordance with all Construction Contracts and from such laborers, Contractors and
subcontractors performing work on site as Landlord, with Tenant's Concurrence, may require.
(f) Architect has issued its "Certificate of Final Completion" for the
Project and Landlord has received the certificate of any other architect or engineer reasonably
requested by Landlord.
(g) Design-Builder has issued a certificate that (i) the Project has been
finally completed in substantial accordance with the Contract Documents and (ii) no Hazardous
Substances were incorporated into the structure of the Project.
(h) Design-Builder has delivered to Landlord a written report showing
the allocation of Project Costs among the categories of the Project Budget and the remaining
specified dollar amount of the Project Contingency and the undisbursed portion of the
Developer's Fee (as defined in the Development Agreement).
(i) Landlord has received an endorsement to its title policy and Trustee
shall have received an endorsement to its title policy, each dated as of and issued on the date of
Final Acceptance, which shall (i) insure Landlord and Trustee, respectively, against any liens for
labor or materials, whether or not of record, which may have arisen in connection with the
construction of the Project, and (ii) show no additional exceptions to such title policy other than
those approved by or arising through Landlord.
1.27 "Final Payment" means payment to the Developer, the Architect,
Design-Builder and any other Contractors by Landlord following Final Acceptance.
1.28 "Financed FF&E" means furniture, fixtures, equipment and movable
property as set forth on EXHIBIT N attached hereto, the costs of which will (i) be included in
Project Costs, but only to the extent of the Financed FF&E Allowance set forth in the approved
Project Budget, and (ii) financed through the Bonds. Any cost of Financed FF&E that is in
excess of the Financed FF&E Allowance set forth in the approved Project Budget shall not be
part of the Total Project Price. The Financed FF&E will be designed, provided and installed as
set forth on EXHIBIT N.
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1.29 "Total Project Price" means an amount not to exceed $[To Be
Determined at Final Design Approval by City], the total amount to be paid by Landlord for
Project Costs. A detailed description of Project Costs by line item and category is set forth in the
Project Budget.
1.30 "Ground Lease" means the long-term ground lease entered into, or to be
entered into, by the City of Boynton Beach, Florida, as lessor for the Property, and CFP Boynton
Beach Town Square, LLC, as lessee for the Property.
1.31 "Hazardous Substance" means any material, waste, substance, industrial
waste, toxic waste, chemical contaminant, petroleum, asbestos, polychlorinated biphenyls,
radioactive materials, or other substances regulated or classified by Environmental Laws as
hazardous, toxic or lethal to persons or property.
1.32 "Indenture" means the trust indenture pursuant to which Landlord will
cause the issuance of the Bonds.
1.33 "Landlord" means CFP Boynton Beach Town Square, LLC, a Florida
limited liability company, and its successors and permitted assigns.
1.34 "Laws" means any constitution, statute, ordinance, regulation, rule,
resolution, judicial decision, administrative order or other requirement of any federal, state,
county, municipal or other governmental agency or authority having jurisdiction over the parties
or the Premises, or both, in effect either at the time of execution of this Lease or at any time
during the Term, including without limitation, any regulation or order of a quasi-official entity or
body (e.g., board of public utilities) and all rules, laws and regulations issued thereunder, as the
same may be amended from time to time.
1.35 "Leasehold Mortgage" means the (a) Construction Leasehold Deed of
Trust, Security Agreement, Assignment of Leases and Rents, and Fixture Filing; (b)
Assignment of Leases and Cash Collateral; (c) applicable Uniform Commercial Code
financing statements; and (d) other security documents executed by Landlord in connection
with or to secure the Bonds.
1.36 "Liens" means any lien, charge, security interest or encumbrance, except
the Indenture and the Leasehold Mortgage, which may be attached to, upon or against the
Premises or any portion thereof.
1.37 "Notice Address" means, as to each of the Notice Parties, its respective
address as specified in or pursuant to Section 32.8 of this Lease.
1.38 "Notice Parties" means each of Landlord, Tenant and Trustee.
1.39 "Periodic Rent" means the rent payable by Tenant under this Lease from
the Rent Commencement Date to and including the Expiration Date in the amounts set forth on
the Schedule of Periodic Rent, annexed hereto as EXHIBIT B and by this reference incorporated
herein. Periodic Rent is the amount necessary to pay principal and interest with respect to the
Bonds in accordance with the Indenture.
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1.40 "Permitted Use" means use of the Premises by Tenant for its municipal
operations and/or any other lawful use consistent with the provisions of Section 7.
1.41 "Preliminary Plans" are the initial renditions for the CFP Improvements
pursuant to site plan approvals issued with respect to the Project by the City of Boynton Beach, a
schedule of which Preliminary Plans is attached hereto as EXHIBIT C and incorporated herein
by this reference. The Preliminary Plans include a design intent summary regarding the quality
of construction, and general intent of design.
1.42 "Premises" means the entirety of the CFP Improvements and any other
improvements on the Property, together with a leasehold interest in the Property pursuant to the
Ground Lease
1.43 "Project" means the total design, permitting and construction, all design
and other professional services, and all labor, materials and equipment used or incorporated in
such design and construction of the CFP Improvements on the Property. The Project shall be
consistent with and reasonably inferable from the approved Project Requirements as being
necessary to produce the intended results.
1.44 "Project Budget" means the budget for development of the Project
attached hereto as EXHIBIT D-2 and as revised from time to time by Developer, Design-
Builder, and Landlord with Tenant's Concurrence, and in accordance with the Development
Agreement.
1.45 "Project Contingency" means the contingency by that name set forth in
the Project Budget and further defined in the Development Agreement.
1.46 "Project Costs" means all costs for the completion of the development,
design, permitting and construction of the Project, including, without limitation, all site work,
including utility relocation and installation of utilities as required to serve the Project, all
roadway improvements (if any), sidewalks and landscaping, all permit fees, all costs of the CFP
Improvements, HVAC, electrical and other building systems, including but not limited to
conduit rough-in for data, telephone, and security, all costs of Tenant Improvements including
HVAC thermostats and operating controls, all costs of Financed FF&E (but only to the extent of
the Financed FF&E Allowance set forth in the approved Project Budget), all costs of
architectural services provided by the Architect under the Architect's Agreement, all other
professional design services and other services provided by Contractors or other professionals
engaged by Developer or Design-Builder, costs of reproductions of plans, specification, reports,
manuals and similar materials, all amounts paid to Design-Builder under the Design-Build
Contract including all labor, material, and equipment used or incorporated in such design and
construction, all amounts paid to other Contractors and subcontractors, if any, under any other
Construction Contract or subcontract entered into by Landlord upon the written approval of
Design-Builder or by Developer on behalf of and acting as the Landlord's agent in connection
with the Project, including all labor, material, equipment used or incorporated in such design and
construction, services provided by engineers, environmental consultants, surveyors and other
professionals and consultants retained by Landlord in connection with the Project, reasonable
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travel costs incurred by Developer in connection with the performance of its services, including,
but not limited to mileage charges, meals and lodging, the Developer's Fee (as defined in the
Development Agreement)], insurance (other than Bond insurance and other than builders risk
insurance which shall be purchased by Landlord and not by Developer or Design-Builder),
payment and performance bonds, applicable state and local retail sales taxes, and the Project
Contingency.
Notwithstanding anything to the contrary herein, Project Costs do not include and Landlord has
no responsibility for (a) Tenant's Personal Property and any taxes thereon (which shall be paid by
Tenant at its sole cost and expense); (b) Owner Discretionary Costs; (c) Costs Resulting from
Tenant-Caused Delay; (d) any increase in the cost of the Project resulting from Tenant-initiated
change orders; (e) real property taxes and assessments with respect to the Property and the
improvements thereon; and (f) Other Costs. [Owner Discretionary Costs, Costs Resulting from
Tenant-Caused Delay and Other Costs each shall have the meaning assigned to them in the
Development Agreement.
1.47 "Project Requirements" means the Preliminary Plans, Construction
Documents, Requirements of Law, and any other requirements for the Project specifically agreed
to by Landlord and Developer with Tenant's Concurrence.
1.48 "Project Schedule" means the schedule for development and construction
of the Project as revised from time to time by Developer and Landlord in accordance with the
Development Agreement, and with Tenant's Concurrence. The initial Project Schedule is set
forth in EXHIBIT D-1 attached hereto and by this reference incorporated herein.
1.49 "Punch List" means a list of items required to be completed prior to Final
Acceptance that are minor items which do not affect Landlord's ability to lease the Premises to
Tenant and do not affect Tenant's ability to use the Premises for their Permitted Use. The Punch
List shall be subject to Tenant's Concurrence.
1.50 "Rent" means the sum of Periodic Rent and Additional Rent.
1.51 "Rent Commencement Date" means the date that Tenant's obligation to
pay Periodic Rent commences, which is [ ], 2018.
1.52 "Requirements of Law" means all requirements relating to land and
building construction (including those specifically applicable to Tenant's contemplated use of
the Premises for the Permitted Use, and planning, zoning, subdivision, environmental, air
quality, flood hazard, fire safety, accessibility, and other governmental approvals, permits,
licenses and/or certificates as may be necessary from time to time to comply with all the
foregoing and other applicable statutes, rules, orders, regulations, laws, ordinances, and
covenants, conditions and restrictions, which now apply to and/or affect the design,
construction, existence, intended use, operation and/or occupancy of the Property, and the
Premises or any part thereof.
1.53 "Substantial Completion Date" means the date of Substantial
Completion of the Project.
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1.54 "Substantial Completion of the Project" means that each of the
following events has occurred with respect to the Project:
(a) Design-Builder has notified Landlord and Tenant in writing that
the Project, including all Tenant Improvements, are Substantially Complete in substantial
accordance with the Contract Documents, subject only to the completion of normal Punch List
items (or as otherwise agreed by Landlord and Tenant);
(b) Architect has issued its "Certificate of Substantial Completion"
(AIA Document 0;704) stating that the work under the Construction Contracts is sufficiently
complete in substantial accordance with the Contract Documents to permit Tenant to occupy or
utilize the Premises for its Permitted Use;
(c) The City of Boynton Beach, Florida has issued a temporary or final
certificate of occupancy or other approval sufficient for initial occupancy of the Premises and the
City's Fire Department has also issued its approval for occupancy such that Tenant is permitted
to and could, pursuant to such issued certificate of occupancy, physically occupy the Premises
for its Permitted Use; provided, however, if the delay in the issuance of the certificate of
occupancy is attributable to the Tenant's work, including, without limitation Tenant's installation
of Tenant's Personal Property [and any portion of the Financed FF&E that is to be provided or
installed by 'Tenant in accordance with EXHIBIT NJ, then this condition shall be deemed
satisfied;
(d) Each Contractor has issued its "Certificate of Substantial
Completion" together with its "Affidavit of Payment of Debts and Claims" (AIA Forms 706 and
706A), together with partial waivers and releases of lien for work performed prior to the date of
its "Certificate of Substantial Completion" in form satisfactory to Landlord, with Tenant's
Concurrence, from such materialmen, laborers, contractors and subcontractors as Landlord, with
Tenant's Concurrence, may reasonably require;
(f) Landlord, with Tenant's Concurrence, has accepted the Project as
Substantially Complete, subject to completion of the Punch List items agreed upon by Landlord,
with Tenant's Concurrence; and
(g) Landlord shall, or shall cause Developer to, have caused a Notice of
Completion to be recorded.
1.55 "Substantially Complete" means that the Project has been constructed
in substantial accordance with the Contract Documents and: (a) all elements required for the
functioning of the Project are operational and in good working order and condition including
satisfying applicable ADA building requirements, as well as regulations adopted thereunder; (b)
the fire and life safety systems within the Project are operational and in good working order and
condition; (d) the Municipal Improvement elevators operate and function in good working order
and condition, but may still require minor touch up installation and cleaning; (e) the mechanical
and electrical systems, including but not limited to the HVAC systems, have been individually
tested and verified that they are in good working order and able to support the Permitted Use of
the Project by the Tenant, and have been tested to assure that the Project systems operate on an
integrated basis; (f) the finish work has been substantially completed, including, but not limited
to public lobby, elevator, HVAC, plumbing, fire and life safety, sprinkler and electrical systems,
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doors, partitions, cabinetry, carpet and base, including removal of all construction debris; and
(g) all roadway improvements, site utilities, sidewalks and landscaping have been substantially
completed and construction barricades and equipment have been removed, except in each case
minor Punch List items which do not materially affect use and occupancy of the Project for its
Permitted Use.
1.56 "Taxes" means all real and personal property taxes and assessments
(including assessments for special assessment district improvements), supplemental
assessments, license and permit fees, leasehold excise taxes, other excise taxes, levies, sales,
use and occupancy taxes, any tax or charge assessed against the Rent or fair market value of
the Premises and any taxes levied or assessed in addition to or in lieu of, in whole or in part,
such taxes, assessments or other charges and all other governmental impositions and charges of
every kind and nature, general and special, ordinary and extraordinary, foreseen and
unforeseen of every character which at any time from and after the Substantial Completion
Date may be imposed, levied upon or assessed against or which arise with respect to or
constitute a lien upon the Property, the Premises (or any part thereof), the leasehold estate
created by this Lease or any part thereof, or any estate, right or interest therein, or any
occupancy, use or possession of or activity conducted on the Premises or any part thereof.
Taxes shall not include any tax computed on the basis of Landlord's net income.
1.57 "Tenant" means the City of Boynton Beach, Florida, and its successors
and permitted assigns, as the tenant under this Lease.
1.58 "Tenant Improvements" means any improvements to the interior
buildings of the CFP Improvements including but not limited to HVAC thermostats, operating
controls and conduit rough-in for data, telephone, and security wiring, all of which are more
specifically described in the Construction Documents and subject to Tenant's Concurrence.
1.59 "Tenant's Concurrence" means, with respect to any Contract
Documents or any action to be taken by Landlord with respect to the Project for which
Tenant's concurrence is specified, the written approval of Tenant to such Contract Document
or action following (i) written notice to Tenant from Landlord requesting such concurrence and
(ii) the period of time expressly stated in days for Tenant to consider such request either as
specified herein or, if not specified, a commercially reasonable period of time. If Tenant fails
to respond within such period, Tenant's Concurrence shall be deemed granted. Tenant's
Concurrence shall not be unreasonably withheld or delayed.
1.60 "Tenant's Construction Representative" means the designee of [To Be
Provided by the City], or such other individual named in a notice from Tenant to Landlord given
from time to time.
1.61 "Tenant's Personal Property" means Tenant's furniture, equipment and
movable property placed in the Premises. Tenant shall provide and install Tenant's Personal
Property at Tenant's sole cost and expense. [Tenant's Personal Property does not include
Financed FF E.]
1.62 "Term" means the period beginning on the Effective Date and ending on
the Expiration Date.
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1.63 "Trustee" means a national bank or other financial institution with trust
powers selected by Landlord to serve as the bond trustee under the Indenture or any duly
authorized successor thereto appointed pursuant to the Indenture.
1.64 "Utilities" means all utilities and services furnished to the Premises, after
the Substantial Completion Date including without limitation, gas, electricity, water and sewer.
2. Premises. Landlord leases to Tenant and Tenant leases from Landlord the
Premises for the Term. Tenant shall not, however, be entitled to occupy the Premises until the
date of Substantial Completion of the Project.
3. Term. The Term shall commence on the Effective Date and shall expire on the
Expiration Date; provided, however, that the right of Tenant to occupy the Premises shall not
commence until the Substantial Completion Date.
If on the Expiration Date, the total Periodic Rent otherwise payable hereunder has not
been fully paid as a result of an Abatement of Rent under Section 19.4 or Section 20.2 below and
the Bonds have not been fully paid, then the Term of this Lease may, at the option of Landlord,
be extended until the total Periodic Rent otherwise payable hereunder shall be fully paid and the
Bonds have been fully paid, except that the Term of this Lease shall in no event be extended
beyond [ ]. In the event of any such extension of the Term, the Periodic Rent shall be the
amount payable by Tenant immediately prior to such extension period.
Notwithstanding that the right of Tenant to occupy the Premises shall not commence until
the Substantial Completion Date, all of the other terms and provisions of this Lease shall be
effective from and after the Effective Date (except as otherwise provided herein, such as
provisions related to Tenant's obligation to pay Rent and to procure insurance).
4. Periodic Rent; Conveyance of Premises.
4.1 Obligation to Pay Periodic Rent. Tenant shall pay the Periodic Rent to
the Trustee at the Trustee's address set forth in Section 32.8 and without deduction, offset, prior
notice or demand, in advance on the Rent Commencement Date and thereafter in advance on the
first day of [ ] and [ ], throughout the Term. ['Tenant may elect to offset against its
obligation to pay Periodic Pent amounts in the Capitalized Interest Fund (as defined in the
Indenture) or otherwise held by 'Trustee and that are available to pay principal of and/or interest
on the Bonds., all to the extent permitted under the Indenture.] Tenant acknowledges that time is
of the essence in payment of Periodic Rent since Landlord intends to use Periodic Rent to make
principal and interest payments on the Bonds.
4.2 Defeasance. In the event that money and/or "Government Obligations,"
as such obligations are now or may hereafter be defined in the Indenture, maturing at such
time or times and bearing interest to be earned thereon in amounts sufficient to pay or prepay
all Periodic Rent then due under this Lease in accordance with the terms of this Lease, are
irrevocably set aside and pledged in a special account created pursuant to the requirements of
the Indenture to effect such payment or prepayment and defeasance of the Bonds, then upon
such pledge, and provided that Tenant has fulfilled all other obligations under this Lease,
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Landlord shall convey unencumbered title to the Premises to Tenant (subject to Section 4.4),
this Lease shall automatically terminate, no further payments need be made of any Rent under
this Lease and Landlord shall not be entitled to any lien, benefit or security in the Premises,
except the right to receive the funds so set aside and pledged, and neither Landlord nor Tenant
shall have any further obligation to the other hereunder. Landlord shall apply such prepaid
Periodic Rent to the defeasance or redemption of Bonds in accordance with the Indenture. In
the event the Premises are conveyed to Tenant pursuant to this Section, the Ground Lease
executed between the parties shall automatically terminate.
4.3 Options to Prepay Rent and Purchase Premises; Conveyance of
Title.
(a) Option to Purchase. Tenant shall have the option to purchase the
Premises and thereby terminate this Lease and the Ground Lease at any time on or after [ ],
subject to the provisions of [Article VI] of the Indenture. The purchase price of the Premises
shall be the amount required to fully redeem or defease all outstanding Bonds, plus accrued
interest, as set forth in [Section 6.01] of the Indenture, plus all costs associated with such
purchase.
(b) Exercise of Option. Tenant shall give Landlord not less than
forty-five (45) days' prior written notice of its irrevocable election to exercise its option to
purchase under Section 4.3(a) in the form set forth on the attached EXHIBIT G. Within fifteen
(15) days thereafter and in accordance with Section 4.30 hereof, Landlord shall provide Tenant
with an accounting of the amounts necessary to complete the purchase on the date set forth in
such notice. The purchase price shall be paid in cash or same-day available funds by 12:00 noon
Eastern Standard Time on the payment date specified in such notice (or such other earlier date as
Tenant and Landlord may mutually agree).
(c) Option to Partially Prepay Lease. Tenant shall have the option to
partially prepay the principal component of Periodic Rent, in $[ increments for periods to
be determined by Tenant (as represented by the principal components of Periodic Rent due each
year as set forth on the attached EXHIBIT B). Notice of Tenant's intent to prepay shall be given
to Landlord in writing not less than forty-five (45) days in advance of the intended prepayment
date. Such prepayment may be at any time on or after [ ]. The notice of partial prepayment
shall be substantially in the form set forth on the attached EXHIBIT H. By 10:00 a.m. Eastern
Time on the date set for such prepayment, Tenant shall pay to Trustee in cash or same-day
available funds, an amount equal to the principal component of Periodic Rent to be prepaid,
together with interest thereon to the date of prepayment, with instructions that such funds shall
be used to optionally redeem Bonds. Upon such prepayment, EXHIBIT B attached hereto shall
be amended to reflect the reduction in Periodic Rent resulting from such prepayment. Tenant
shall be responsible for paying all costs associated with the partial prepayment.
(d) Defeasance of a Portion of Bonds. Tenant shall have the option
to have Landlord defease a portion of the Bonds in accordance with the applicable
requirements of the Indenture. Upon written notice from Tenant and deposit by Tenant with
Trustee of funds sufficient to accomplish the defeasance in accordance with the Indenture,
Landlord shall take all reasonable steps in an expedited manner to effect such defeasance.
Tenant shall be responsible for paying all costs associated with the defeasance. Upon such
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defeasance, EXHIBIT B attached hereto shall be amended to reflect the reduction in Periodic
Rent resulting from such defeasance.
(e) No Requirement to Purchase. Nothing herein shall be
construed to require Tenant to exercise the purchase option herein granted.
(f) Accounting; Disputed Amounts. Within fifteen (15) days of its
receipt of notice under Section 4.3(b), Landlord shall provide Tenant with an accounting of all
Additional Rent then due and expected to be due on the purchase date set forth in the notice. If
Tenant does not dispute such accounting, Tenant shall pay all such Additional Rent and other
amounts due and owing on the purchase date. If Tenant disputes the amounts set forth in the
accounting provided by Landlord and an agreement cannot be reached within twenty (20) days
of receipt of the accounting, then Tenant shall pay all undisputed amounts on the purchase
date, and any amounts remaining in dispute are not waived by Landlord, and, notwithstanding
the conveyance of the Premises, Landlord may seek those amounts per the Dispute Resolution
Procedure in EXHIBIT F. It is contemplated that amounts remaining in controversy, if any,
will relate to Additional Rent, including but limited to prorations of expenses, reserve
accounts, ongoing or estimated expenses. Amounts paid by Tenant to defease the Bonds and
casue conveyance of the Premises shall be used only for that purpose and shall not be first
applied to Additional Rent. Payment may, to the extent permitted by the Indenture, be
partially made by demand to use amounts remaining in any operating, capital, or replacement
reserve accounts not already allocated to work actually performed or equipment purchased.
4.4 Conveyance of Premises. Landlord shall convey to Tenant unencumbered
title to the Premises without recourse or warranty (except by assignment of warrantees provided
by Contractors and their equipment suppliers) and in its then condition, upon (i) the termination
of this Lease, as a result of the full payment and retirement or defeasance of all outstanding
Bonds pursuant to the terms of the Indenture and (ii) discharge of the Indenture. The deed by
which Landlord conveys the Premises to Tenant may list as exceptions all covenants,
conditions and restrictions then recorded against the Premises so long as such exceptions: (i)
were approved by Tenant prior to the Substantial Completion Date; (ii) consist of non-
delinquent real estate taxes and assessments or (iii) arise by reason of Tenant's activities.
Tenant shall pay the cost for any owner's policy of title insurance it elects to obtain in
connection with such conveyance. Landlord shall not be required to make any representations
regarding the conditions of the Premises, and Tenant agrees to accept the Premises in an "as is"
condition. Upon conveyance, the Ground Lease executed between the parties shall
automatically terminate, and, upon request by either party, the parties shall execute and record
a termination of Ground Lease and this Lease in the real property records of Palm Beach
County. In addition, prior to the conveyance, maintenance records, management records and
records of contracts and payments with vendors for the entire Lease period shall be made
available to Tenant, or transferred into the Tenant's possession. Complete transfer of records is
not required until disputes, if any, are resolved.
4.5 Covenant to Budget and Appropriate for Rent. Tenant covenants that it
will appropriate in its annual budget, by amendment if required, from the Available Non-Ad
Valorem Revenues, amounts sufficient to pay Rent when due. The phrase "Non-Ad Valorem
Revenues" shall mean all revenues of the City not derived from ad valorem taxation. The phrase
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"Available Non-Ad Valorem Revenues" shall mean all Non-Ad Valorem Revenues other than
(A) any revenues which are restricted by a contract in existence on the date hereof, and (B) any
revenues which are prohibited by law from being used to pay Rent.
Such covenant and agreement on the part of the City to budget and appropriate
such amounts of Available Non-Ad Valorem Revenues shall be cumulative to the extent not
paid, and shall continue until such Available Non-Ad Valorem Revenues or other legally
available funds in amounts sufficient to make all such required payments shall have been
budgeted, appropriated and actually paid. Notwithstanding the foregoing covenant of the City,
the City does not covenant to maintain any services or programs, now provided or maintained by
the City, which generate Available Non-Ad Valorem Revenues.
Such covenant to budget and appropriate does not create any lien or pledge of
Available Non-Ad Valorem Revenues, nor does it preclude the City from pledging in the future
Available Non-Ad Valorem Revenues, nor does it require the City to levy and collect any
particular Available Non-Ad Valorem Revenues, nor does it give the Bondholders (as defined in
the Indenture) a prior claim on the Available Non-Ad Valorem Revenues as opposed to claims of
general creditors of the City. Such covenant to budget and appropriate is subject in all respects
to the payment of obligations secured by a pledge of Available Non-Ad Valorem Revenues
heretofore or hereafter entered into (including debt service on bonds and other obligations).
However, the covenant to budget and appropriate in its general annual budget or amendments
thereto for the purposes and in the manner stated herein shall have the effect of making available
for payment of Rent, in the manner described herein, the Available Non-Ad Valorem Revenues
of the City, and of placing on the City a positive duty to appropriate and budget, by amendment,
if necessary, amounts sufficient to meet its obligations herein; subject, however, to the payment
of services and programs which are Essential Government Services or which are legally
mandated by applicable law. For purposes of this Section 4.5, the phrase "Essential Government
Services" means public safety and general governmental services provided by the City, the
expenditures for which are currently set forth as the line items entitled ["General Government"]
and ["Public Safety"] in the City's Comprehensive Annual Financial Report for the Fiscal Year
ended September 30, 2017, and any equivalent line items in any future financial statements of
the City.
4.6 Anti-Dilution Covenant. In addition to its covenant to budget and
appropriate as set forth in Section 4.5, above, Tenant further covenants that during the period
that all or a portion of the CFP Bonds remain outstanding, Tenant will not incur additional debt
that is secured by all or a portion of Available Non-Ad Valorem Revenues unless there shall be
filed with Tenant a report by an independent certified public accountant, demonstrating that the
total amount of Available Non-Ad Valorem Revenues for the prior fiscal year is at least 2.0
times the maximum annual debt service of all debt (including all long-term financial obligations
appearing on the Tenant's most recent audited financial statements and any additional debt
proposed to be incurred) to be paid from Available Non-Ad Valorem Revenues (collectively,
"Debt"), including Debt payable from one or several specific revenue sources. Tenant agrees to
deliver to CFP and the Trustee for the CFP Bonds a certification, in a form and at such intervals
as shall be mutually agreed upon by CFP and Tenant (but in no event more frequently than on a
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semi-annual basis), which demonstrates the Tenant's compliance with the Anti-Dilution
Covenant set forth herein.
5. Triple Net Lease;Additional Rent.
5.1 Triple Net Lease. Tenant acknowledges that this Lease is a triple net
lease, it being understood that Landlord shall receive all Rent, as provided in this Lease, free and
clear of any and all impositions, encumbrances, charges, obligations or expenses of any nature
whatsoever in connection with the ownership and operation of the Property. In addition to the
payment of all Periodic Rent and Additional Rent required by this Lease, the Tenant shall pay to
the parties respectively entitled thereto all Taxes, assessments, insurance premiums, operating
costs, maintenance costs, repair costs, construction costs, and any other charges, costs and
expenses which may arise or may be contemplated under any provisions of this Lease during the
Term. All of such charges, costs, charges and expenses shall constitute Additional Rent, and
upon the failure of the Tenant to pay any such charges, costs and expenses, the Landlord shall
have the same rights and remedies as otherwise provided in this Lease for the failure of the
Tenant to pay Periodic Rent.
5.2 Right to Audit. Tenant shall have the right either before or after Final
Acceptance to cause Landlord to undertake an audit of the books and records of Developer and
Design-Builder, or any Project contractor in accordance with Section 18 of the Development
Agreement, in a method and at a budget approved by Tenant, and to submit the results of any
such audit to Tenant. Costs incurred by Landlord in connection with any such audit shall be
reimbursed by Tenant except to the extent otherwise reimbursed under Section 19 of the
Development Agreement.
6. Utilities. Landlord shall be solely responsible for and shall pay for all charges for
Utilities used or consumed in the Premises from the Effective Date until the Substantial
Completion Date, and Landlord shall make any necessary arrangements to have all such Utilities
billed directly to and paid for directly by Landlord during this time. Upon written notice from
Tenant following the Substantial Completion Date, Landlord shall arrange for the transfer of any
specified Utility account into Tenant's name. Thereafter, Tenant shall be responsible for and shall
pay for all charges for such Utility or Utilities used or consumed on the Premises. Notwithstanding
anything to the contrary herein, until Substantial Completion of the Project has occurred, Landlord
shall be solely responsible for and shall pay for all charges for Utilities used or consumed in the
Premises.
7. Use. Tenant intends to use the Premises for the Permitted Use. Any sublease by
Tenant to private persons as defined in the Code shall require that Landlord, Trustee and Tenant
receive an opinion of nationally recognized bond counsel that any such sublease will not
adversely affect the tax-exempt status of interest payable on the Bonds. Furthermore, no such
sublease shall adversely affect the status of Landlord as a 501(c)(3) organization as defined in
the Code. Tenant has determined to its satisfaction that the Premises can be used for the
Permitted Use. Tenant's use of the Premises shall be in accordance with the following:
7.1 No Insurance Cancellation. Tenant shall not do, bring, or keep anything
in or about the Premises that will cause a cancellation of any insurance covering the Premises.
7.2 Compliance with Laws.From and after the Substantial Completion Date,
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Tenant shall comply with all Laws concerning the Premises and Tenant's use of the Premises,
including without limitation, Environmental Laws. Tenant shall not use the Premises for the
transportation, storage or generation of any Hazardous Substances in violation of
Environmental Laws. From and after the Substantial Completion Date, and to the extent
permitted by law, Tenant shall absolutely and unconditionally indemnify, defend and hold
Landlord harmless from and against any and all debts, demands, obligations, liens,judgments,
claims, liabilities, losses, damages, cleanup costs and expenses (including reasonable
attorneys' fees) now or hereafter arising in connection with the presence, transportation,
storage, disposal or handling of Hazardous Substances located in, on or about the Premises or
Land which are proven to be caused by or resulting from the actions of Tenant, its agents or
employees after the Substantial Completion Date, excluding (a) any Hazardous Substances
introduced on the Land or the Premises by Landlord or its agents prior to the Substantial
Completion Date or which migrate onto the Land from property not owned by Tenant through
any act or omission of Landlord or its agents; (b) any such debt, demand, obligation, lien,
judgment, claim, liability, loss, damage, cleanup cost or expense resulting from the actions or
omissions of Landlord, Developer, Design-Builder and their respective agents, employees,
contractors, subcontractors or invitees; or (c) any debt, demand, obligation, lien, judgment,
claim, liability, loss, damage, cleanup cost or expense as a result of Landlord's violation of
any contractual obligation under this Lease, the Indenture, or any other document executed by
Landlord in connection with a Leasehold Mortgage incurred in connection with Section 11.
This indemnification shall survive the Expiration Date.
7.3 No Waste, Nuisance or Damage. Tenant shall not use the Premises in
any manner that will constitute waste of the Premises or nuisance and Tenant shall not do
anything on the Premises that will cause damage to the Premises.
7.4 Tax Covenants. At all times from and after the Effective Date, Landlord
(a) shall maintain its purposes and engage only in activities which are in furtherance of its
purposes; will maintain its status as a nonprofit corporation and as an organization described in
Section 501(c)(3) of the Code whose income does not inure to the benefit of any private person;
(b) shall not encumber, pledge, hypothecate or grant a security interest in all or any part of the
Premises (except for the Indenture and the Leasehold Mortgage which comply with the
provisions of Section 11) or except as consented to in writing by Tenant and, if so directed in
writing by holders of a majority in aggregate principal amount of the Bonds, Trustee; (d) shall
not engage in any activities related to the Premises or the Leasehold Mortgage (except those
specifically set forth in Sections 9 and 11) which would cause the transaction contemplated
under this Lease to constitute an unrelated trade or business determined by applying Section
513(a) of the Code; and (e) will not take any action or omit to take any action which, if
taken or omitted, would adversely affect the tax-exempt status of interest payable on the
Bonds. At all times during the Term, Landlord shall not assign its rights under this Lease
(except to Trustee pursuant to the Indenture and the Leasehold Mortgage) without the prior
written consent of Tenant and, if so directed in writing by holders of a majority in aggregate
principal amount of the Bonds, Trustee and the opinion of nationally recognized bond
counsel to the effect that such assignment will not adversely affect the tax-exempt status of
interest payable on the Bonds. Such consent shall not be unreasonably denied by the Tenant
At all times from and after the Effective Date, Tenant covenants that it will not take any
action or omit to take any action which, if taken or omitted, would adversely affect the tax-
exempt status of interest payable on the Bonds.
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8. Liens.
8.1 Covenant Against Liens. Except for the Indenture and the Leasehold
Mortgage incurred by Landlord in compliance with the provision of Section 11 to secure the
Bonds, Landlord covenants and agrees that it shall not during the Term suffer or permit any
Liens to be attached to, upon or against the Premises, or any portion thereof or any Rent payable
under this Lease for any reason, including without limitation, Liens arising out of the possession,
use, occupancy, acquisition, construction, repair, or rebuilding of the Premises or by reason of
the furnishing of labor, services, materials, or equipment to the Premises or to Landlord. Tenant
acknowledges that Landlord shall cause Design-Builder to keep the Premises free and clear of all
construction liens resulting from the construction of the Project (including the right to contest
same by appropriate proceedings conducted in good faith with due diligence) under the terms of
the Development Agreement prior to the Substantial Completion Date. If Design-Builder shall
fail to do so, Landlord shall protect, defend, indemnify and hold Tenant harmless against any
such liens. Landlord agrees to indemnify, protect, defend and hold Tenant harmless from and
against all liabilities, losses, damages, expenses and costs (including reasonable attorneys' fees
and costs) incurred in connection with any such Lien. Landlord's obligations pursuant to this
Section 8.1 shall survive the Expiration Date. Tenant covenants and agrees that, from and after
the Substantial Completion Date, it shall not during the Term suffer or permit any Liens to be
attached to, upon or against the Premises, or any portion thereof or its leasehold interest in the
Premises for any reason, including without limitation, Liens arising out of the possession, use,
occupancy, acquisition, maintenance, operation, repair, or rebuilding of the Premises or by
reason of the furnishing of labor, services, materials, or equipment to the Premises or to Tenant.
8.2 Covenant to Remove Liens. Landlord will promptly, and in all events
within thirty (30) days following the attachment of same, remove and discharge any and all Liens
which attach to, upon or against the Premises or any portion thereof, or any leasehold interest of
Tenant created under this Lease (other than liens or encumbrances arising through the actions of
Tenant). Landlord reserves the right to contest the validity or amount of any such Lien in good
faith provided that, within thirty (30) days after the filing of such Lien, Landlord discharges such
Lien of record or records a bond which complies with the requirements of applicable law
eliminating such Lien as an encumbrance against the Premises. In the event Landlord shall fail to
so remove any such Lien, Tenant may take such action as Tenant shall reasonably determine to
remove such Lien and all costs and expenses incurred by Tenant including, without limitation,
amounts paid in good faith settlement of such Lien and attorneys' fees and costs shall be paid by
Landlord to Tenant together with interest thereon at the rate of twelve percent (12%) interest per
annum from the date advanced until paid. Landlord's obligations pursuant to this Section 8.2
shall survive the Expiration Date and, unless properly incurred under other provisions of this
Lease, the costs of such obligations shall not be included as Operating Costs hereunder.
8.3 Tenant's Disclaimer. Notwithstanding the consent or request of Tenant,
express or implied, for the performance of any labor or services or for the furnishing of any
materials or equipment for any construction, alteration, addition, or repair to the Premises (or any
part thereof), Landlord and Tenant agree and notice is hereby given that Tenant will not be liable
for any labor, services, materials or equipment furnished or to be furnished to Landlord, Design-
Builder or anyone holding an interest in the Premises (or any part thereof) through or under
Landlord or Design-Builder, and that no construction or other liens for any such labor, services,
materials or equipment shall attach to or affect the interest of Tenant in the Premises. Nothing in
this Section shall relieve Tenant of its obligation to pay Rent hereunder.
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9. Construction of Project. Tenant would not have entered into this Lease but for
the agreement by Landlord to undertake the Project, including without limitation (i)the obtaining
of financing for the Project, (ii) the acquisition of a leasehold interest in the Land by way of the
Ground Lease, and (iii) the construction and equipping of the Premises for use by Tenant for the
Permitted Use. It is of critical importance to Tenant that the construction of the Project be
completed in a timely manner and within the Project Budget. Accordingly, Landlord shall
diligently cause the Project to be designed, permitted and constructed in a good and workmanlike
manner and delivered to Tenant Substantially Complete by the date set forth in the approved
Project Schedule. Upon Final Acceptance, the Project shall be free of patent or latent defects,
free and clear of all Liens and otherwise in accordance with the requirements of this Lease. In
order to assure timely communications between Landlord and Tenant during the construction
process, any notice to Tenant requiring or permitting a response by Tenant shall specify the
outside date by which Tenant's response must be received to be effective, which response date
shall not be less than three (3)Business Days.
9.1 Development Agreement. To meet the requirements of this Lease for
completion of the Project, Landlord shall, simultaneously with the execution of this Lease by the
parties, enter into the Development Agreement with Developer, that has received Tenant's
Concurrence. Landlord shall also cause Developer to procure and maintain, at a minimum, for
the duration of the Development Agreement, insurance as more particularly described in the
attached EXHIBIT I, against claims for injuries to persons or damages to property which may
arise from, or in connection with, the performance of work pursuant to the Development
Agreement by Developer, its agents, representatives, employees and/or subcontractors. The cost
of such insurance shall be paid by the Developer or its subcontractors.
9.2 Schedule for Design and Construction. The dates set forth in the initial
Project Schedule attached hereto as EXHIBIT D-1 and by this reference incorporated herein,
and as revised from time to time, with Tenant's Concurrence, shall serve as target dates for
achieving the matters set forth therein. Landlord shall require Design-Builder to agree that time
is of the essence and Substantial Completion of the Project must occur by the date set forth in the
approved Project Schedule, subject to Unavoidable Delays as defined the Development
Agreement. In order to ensure to the greatest extent practicable that the Project is designed,
permitted and completed on or before the dates set forth in the Project Schedule, Landlord and
Tenant shall each proceed with all necessary due diligence and in good faith to complete such
matters as require action or approval on the part of Tenant and Landlord. Landlord shall,
following consultation with Tenant's Construction Representative, promptly and diligently
respond to all questions and concerns raised by Developer, Design-Builder or by the Architect,
Contractors, engineers or other consultants.
(a) Notices from Developer to Landlord. To ensure that Tenant is
fully apprised of decisions required of Landlord pursuant to the Development Agreement,
Landlord shall require Design-Builder (if specifically requested by Tenant in writing) to
simultaneously provide to Tenant a copy of notices, plans and specifications or other documents
required to be delivered by Design-Builder to Landlord under the Development Agreement and
Landlord shall also simultaneously provide to Tenant a copy of notices, plans and specifications
or other documents required to be delivered by Landlord to Design-Builder under the
Development Agreement. In addition, Tenant shall have the right, but not the obligation, to
attend design meetings with Developer, Design-Builder, Architect, and other design
professionals as appropriate in the course of development of Construction Documents.
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(b) Notices by Tenant to Landlord and Design-Builder. To ensure
that Design-Builder is fully apprised of Tenant's position on Project decisions to be made by
Landlord, Tenant shall have the right to simultaneously provide to Design-Builder and
Developer, a copy of any notice Tenant issues to Landlord hereunder. Such notice shall be sent
to Developer at the following address by messenger or fax:
To Developer:
1400 W. Fairbanks Avenue, Suite 201
Winter Park, Florida 32789
Attention: Mark Hefferin
Email MarkHefferin@E2LHoldings.com
To Design-Builder
11
(c) Tenant's Construction Representative. Landlord shall, and shall
direct Design-Builder and Developer to, direct all notices and submittals required to be sent to
Tenant hereunder to the attention of Tenant's Construction Representative.
9.3 Plans and Specifications.
(a) Preliminary Plans. As of the date of this Lease, Tenant has
reviewed and accepted the Project Requirements for the Project to be constructed on the Land,
including the Preliminary Plans, a list of which is attached to this Lease as EXHIBIT C. In
addition, Tenant has reviewed and accepted the Project Budget, which is attached as EXHIBIT
D-2,which sets forth a detailed itemization by line item and category for all Project Costs.
(b) Construction Drawings and Detailed Specifications. Landlord
will cause the preparation by Architect of Construction Drawings and Detailed Specifications for
the Project and plans and specifications for Tenant Improvements, in each case for review and
acceptance by Tenant. Landlord shall, following consultation with Tenant, cooperate in good
faith with Design-Builder to cause a completed design which meets all Requirements of Law
and is consistent with all Project Requirements and the building quality reflected therein, in an
amount not to exceed the Project Budget, as expeditiously as possible to ensure the Substantial
Completion of the Project by the date set forth in the approved Project Schedule. Accordingly,
as provided above, Design-Builder will provide Tenant a copy of all submittals requiring
Landlord's review and approval pursuant to the Development Agreement, as and when such
submittals are provided to Landlord. Tenant shall only have the right to withhold Tenant's
Concurrence to interim and final sets of such Construction Drawings and Detailed
Specifications which (i) do not meet the Project Requirements, or (ii) do not comply with
Requirements of Law, or (iii) do not comply with previous iterations of the Construction
Drawings and Detailed Specifications in all material respects, or (iv) propose changes in work
or materials that would result in a material change in appearance or diminution in quality of the
Project. Tenant shall have the right to give notice to Landlord disapproving any such iterations
of the Construction Drawings and Detailed Specifications and Landlord shall notify Design
Builder and Developer in the manner and within the time period set forth in the Development
Agreement. Tenant's written Concurrence, objection or comments shall be provided within five
(5) Business Days of receiving iterations of the Construction Drawings and Detailed
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Specifications. Tenant's failure to respond within such time period shall be deemed a
Concurrence. The final Construction Drawings and Detailed Specifications setting forth in
detail the requirements for the construction of the entire Project which have been approved by
Landlord, with Tenant's Concurrence, are called the Construction Documents.
(c) Changes to Construction Documents. Landlord has directed
that Design-Builder provide Tenant a copy of all proposed changes in the Construction
Documents requiring Landlord's review and/or approval pursuant to the Development
Agreement, as and when such proposed changes are provided to Landlord. Tenant shall have
the right to give notice to Landlord disapproving any such proposed change in the Construction
Documents within the time period set forth in the notice of any such proposed change, but in
no event shall the time period be less than seven (7) days. If Tenant fails to issue such notice
so as to allow Landlord to make timely objection or comment, any such change shall be
deemed approved by Tenant. If Tenant timely disapproves any such proposed change, Tenant
shall notify Landlord in writing specifying the reason for its disapproval and Landlord shall
so notify Design-Builder. Tenant shall only have the right to disapprove changes which (i)
are not a consistent development of the Project Requirements, (ii) do not meet Project
Requirements, (iii) do not comply with Requirements of Law, (iv) would violate the terms of
any permits for the Project, (v) would cause the Project Schedule to be adversely impacted or
the Project Budget to be exceeded, or (vi) involve proposed changes in work or materials
which would result in a material change in appearance or diminution in quality of the Project.
Disputes regarding a proposed change in the Construction Documents shall be subject to the
dispute resolution process set forth in Section 9.5.
9.4 Tenant Improvements. The Total Project Price shall include the design,
permitting and construction of Tenant Improvements. As is the case for the Project in general,
the aspects of the Construction Documents, the Project Schedule and the Project Budget that
relate to the Tenant Improvements shall be subject to Tenant's Concurrence. Final plans for the
Tenant Improvements must be completed within the applicable period set forth in the Project
Schedule. The Tenant Improvements must not exceed the amount budgeted in EXHIBIT D-2.
9.5 Dispute Resolution Process. Tenant and Landlord have the option to
follow the independent resolution process set forth in this Section 9.5 to resolve disputes
regarding preparation of the Construction Drawings and Detailed Specifications and changes to
Construction Documents in an economic and time efficient manner so that such documents
conform to the requirements of this Lease, the Project Schedule is not adversely impacted, and
the Project as constructed will satisfy the Project Requirements. In the event that a dispute
arises between Tenant and Landlord during the design or construction of the Project regarding
the adequacy of any Drawings or Specifications or the responsibility for any costs associated
with any design development, addition or change (e.g., whether any design development is
consistent with and reasonably inferable from the Project Requirements), the parties shall
attempt to resolve such dispute as expeditiously as possible and shall cooperate so that the
progress of the design and construction of the Project is not delayed. If, however, the parties
are unable to resolve the dispute within three (3) Business Days, either party may, by
delivering written notice to the other and Trustee, refer the matter to a dispute resolution
mediator as set forth on the attached EXHIBIT F.
9.6 Project Contingency. To the extent the actual Project Costs in any line
item of the Project Budget exceed the amount shown for such line item, Design-Builder shall
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first allocate amounts in other line items, in which the actual known Project Costs will be less
than the amount of the Project Budget, to the line item in which the excess Project Costs have
been incurred. However, Design-Builder must first provide a written explanation to Landlord and
Tenant explaining why, with documentary support, the budgeted amount was exceeded.
Following the allocation by Design-Builder as set forth in the preceding sentence with respect to
all line items, Design-Builder is entitled to draw upon the Project Contingency for such excess
Project Costs; provided, however, Design-Builder must first provide a written explanation to
Landlord and Tenant explaining why, with documentary support, the Project Contingency must
be drawn upon. If the Project Contingency is not sufficient to pay such excess Project Costs,
Design-Builder shall be responsible therefor in accordance with Section 9.6 of the Development
Agreement.
9.7 Permits; Costs; Compliance with Legal Requirements. Landlord shall
cause Design-Builder to secure all permits for the Project, licenses, permissions, consents and
approvals required to be obtained from governmental agencies or third parties in connection
with construction of the Project pursuant to Requirements of Law. Tenant shall join in the
application for such permits or authorizations whenever such joinder is required; provided,
however, Tenant shall incur no expense or liability in connection therewith. Landlord shall
cause all work on the Project to be performed in accordance with (i) the Development
Agreement., and (ii) all Requirements of Law and all directions and regulations of all
governmental agencies and the representatives of such agencies having jurisdiction over the
Project and/or the Premises.
9.8 Construction Contracts. Landlord intends to contract for the construction
of the Project directly with the Design-Builder and to cause Developer to serve as construction
manager in connection therewith pursuant to the provisions of the Development Agreement.
Prior to its execution, Landlord shall provide Tenant with a copy of the Design-Build Contract
for Tenant's Concurrence. In addition, Tenant shall have the right to view, for its own
information, all Construction Contracts and the bids submitted by potential Contractors and
subcontractors.
(a) Design-Builder's Insurance. By the date of the execution of the
Design-Build Contract, Landlord shall cause the Design-Builder to procure and maintain, at a
minimum, for the duration of that Design-Build Contract the insurance more particularly
described in the attached EXHIBIT J against claims for injuries to persons or damages to
property which may arise from, or in connection with the performance of work thereunder by
the Design-Builder, its agents, representatives, employees and/or subcontractors. The cost of
such insurance shall be paid by the Design-Builder or its subcontractor.
(b) No Assumption of Risk. By requiring such minimum insurance,
Landlord shall not be deemed to, or construed to, have assumed the risks that may be applicable
to the Design-Builder in the Design-Build Contract.
9.9 Construction of Project. Landlord shall use its reasonable best efforts to
commence initial construction of the Project following receipt of the clearing and grading
permits. Thereafter, following receipt of the building permits for the Project, Landlord shall use
its best efforts to cause construction of the Project to be diligently and continuously prosecuted.
All work shall be performed in a good and workmanlike manner, shall be free of defects in the
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work and materials and shall be constructed in substantial accordance with the Contract
Documents, the requirements of this Lease and Requirements of Law. Landlord shall use its
best efforts to cause Substantial Completion of the Project in accordance with the Project
Schedule attached hereto as EXHIBIT D-1. In addition, Landlord shall use its best efforts to
cause all Project Costs to be paid within the Total Project Price; provided, however, that (i)
Landlord shall have no obligation to pay Project Costs in excess of the Total Project Price, and
(ii )Tenant, whose only payment obligation hereunder is the payment of Rent and other amounts
specifically set forth herein, shall have no obligation for the payment of any Project Costs. [As
reflected in EXlll II` N, Tenant may directly procure certain Financed FF E. In such event.,
upon written request by Tenant (including such supporting documentation as l..,andlord may
reasonably require), l..,andlord shall reimburse Tenant as a Project Cost for Tenant's costs of
procuring such Financed FF E, prodded that such reimbursement shall not exceed the amount
of the Financed FF&E Allowance as set forth in the Project Budget., and any costs in excess of
such FF&E Allowance shall be borne by Tenant and are not part of the Total Project Price.]
9.10 Payment of Project Costs and Other Costs Associated with the
Project. Throughout the course of construction of the Project, Design-Builder shall submit to
Landlord on a monthly basis Project Applications for Payment, as defined in, and in the manner,
and with all supporting documentation described in, the Development Agreement. Pursuant to
Section 9.2(a) above, Landlord shall require Design-Builder to simultaneously provide Tenant
with a copy of all such Project Applications for Payment and supporting documentation. Tenant
shall have the right, but not the obligation, to give notice to Landlord objecting to any aspect of
such submittals and Landlord shall notify Design-Builder in the manner and within the time
period set forth in the Development Agreement. If Tenant fails to give such notice so as to allow
Landlord to make timely objection, Landlord shall be free to approve or to take such other action
as it deems appropriate with respect to any such submittal. Any dispute with respect to Project
Applications for Payment may be subject to dispute resolution pursuant to Section 9.5 above. [In
no event shall I..,andlord approve any Project Application for payment unless and until the Project
is in balance in accordance with Section 9.6 of the Development Agreement.]
9.11 Savings. Upon Final Acceptance, Landlord shall provide Tenant and
Trustee notice of the unexpended amount, if any, of the Project Contingency. Subject to the
payment to Developer of the incentive fee specified in Section 12.7 of the Development
Agreement [and Share savings clauses in the Design Build Contract(s)], one hundred percent
(100%) of the remaining savings shall be used, at the direction of the Tenant with approval from
bond counsel and consistent with the Indenture, to finance other capital improvements related to
the Project or to pay or redeem Bonds, which shall result in a corresponding reduction to the
Periodic Rent due from the Tenant.
9.12 Substantial Completion of Project. Substantial Completion of the
Project shall have occurred when all of the events described in Section 1.65 have occurred.
9.13 Final Acceptance. Final Acceptance shall have occurred when all of the
events set forth in Section 1.31 have occurred.
9.14 As-Constructed Plans and Specifications; Manuals; Warranties;
Permits and Licenses; and Survey. On or before Final Acceptance, Landlord shall provide
Tenant with a complete and detailed set of "as constructed" plans and specifications for the
Project (Tenant Improvements to be provided in a CAD—computer-aided design—format),
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together with copies of all other materials received from Design-Builder pursuant to the
Development Agreement including manuals, warranties, permits and licenses and a survey.
Landlord shall ensure that Tenant has the right and irrevocable license to use the Construction
Documents for repairs and additions to the Project following Final Acceptance.
9.15 Inspection by Tenant. Tenant shall have the right to inspect the
ongoing construction of the Project and the Contract Documents upon reasonable prior notice
to Landlord.
9.16 No Amendment of Documents. In the event Landlord desires to amend
the agreement with the Architect, the Design-Build Contract, any Contract Document, the
Development Agreement, the Indenture, the Leasehold Mortgage, or any other document,
contract or agreement entered into in connection with the Project or the Bonds, Landlord shall
submit a copy of such proposed amendment to Tenant. In the event Tenant notifies Landlord
within fifteen (15) days following receipt of such proposed amendment of its objection to such
proposed amendment, stating any conditions for assent and reasons for the objections, Landlord
shall not enter into the proposed amendment unless Landlord first (i) responds to the concerns
expressed by Tenant, (ii) determines that any such amendment does not materially and adversely
affect the Project, and (iii) confirms that any such amendment complies with the provisions of
the Indenture. Landlord agrees not to enter into any amendment without Tenant's Concurrence.
9.17 Tenant's Construction Representative. Tenant's Construction
Representative shall have the right, but not the obligation, to (i) review and suggest revisions to
the Construction Contracts prior to their execution, (ii) review and suggest revisions to the
Construction Documents prior to or during construction in order to clarify, correct or properly
reflect the intent of design (as defined below), (iii) review, comment on, or suggest actions with
respect to all submittals and change orders concurrently with the Architect's review and with a
reasonable time for such comments prior to final approval of the change order or submittal, and
(iv) provide written notice to Landlord of any known or suspected failure of the Project to
comply with the Construction Documents, or any other construction related defects in the Project
or construction means and methods.
(a) Copies of Review Items. Landlord shall require Design-Builder
to provide, or make available, to the Tenant's Construction Representative copies of all potential
Construction Contracts, Construction Documents, submittals and change orders. Tenant
Construction Representative's efforts shall be coordinated with Landlord and Design-Builder so
as to not interfere with or delay design, development or construction of the Project.
(b) Notices to Landlord. If during the course of such construction
Tenant Construction Representative notifies Landlord that it believes that the Project is not
proceeding in accordance with the Contract Documents, Landlord shall provide a copy of such
notice to Design-Builder for review and response and Landlord shall thereafter require Design-
Builder to take, or cause to be taken, any steps necessary to correct any deficiency or omission
that is determined to exist. The failure of Tenant's Construction Representative or Tenant to give
such notice or to take advantage of such rights listed above shall not give rise to any liability for
Tenant and shall not be considered a waiver of any right of Tenant under this Lease.
(c) Intent of Design. As of the Effective Date of this Lease, the
Construction Documents are in development and are not complete. Accordingly, to the extent
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such Contract Documents are silent or internally inconsistent as to various design and
construction matters, Tenant Construction Representative may issue notice to Landlord and
Design-Builder as to what it considers to be the intent of design. For purposes of this Section,
"intent of design" shall mean what would be naturally and reasonably inferable from the
Contract Documents by an experienced professional in the construction industry accustomed to
projects similar to the Project as being necessary for the construction of a fully complete and
operational project.
10. Maintenance and Alterations.
10.1 Maintenance and Repair. Tenant shall, at Tenant's sole cost and
expense, and in accordance with this Lease, maintain, repair and replace in an attractive
condition, good order and function throughout the Term the Premises, including but not limited
to the following: (a) the structural portions of the Premises (understood to include the roof,
foundation and load bearing walls); (b) the non structural portions of the Premises (understood
to include the roof covering and membrane), including but not limited to all improvements,
alterations and fixtures, but excluding furnishings; (c ) all systems and equipment, including
but not limited to electrical, plumbing, fire sprinkler, fire suppression system, fire/life/safety
system, elevators, security systems, flooring, ceiling, doorways, windows, hardware, fixtures,
lighting, heating, ventilating and air conditioning system ("HVAC"), and loading doors; (d) the
exterior of the Premises including, but not limited to, landscaping, driveways, sidewalks,
lighting and parking facilities, and storm water maintenance servicing the Premises. Tenant
shall take all action and will perform all interior and exterior, structural and non-structural,
foreseen and unforeseen, ordinary and extraordinary, maintenance and repairs required to keep
all parts of the Premises in good repair and condition, subject only to ordinary wear and tear. It
is the intent of this Section that Tenant agrees to perform all maintenance and make all repairs to the
Premises that may become necessary by reason of industry standard for age, wear and tear.
10.2 Alterations by Tenant. During the Term, Tenant shall, at its own
expense, have the right to make repairs to the Premises, and to make repairs, replacements,
substitutions and modifications to all or any parts thereof. All such work and any part of
component used or installed to make a repair, or as a replacement substitution or modification
shall thereafter comprise part of the Premises and be subject to the provisions of this Lease.
Such work shall not in any way damage the Premises or cause them to be used for purposes
other than those authorized under the provisions of law or those contemplated by this Lease,
and upon completion of any such work, the value of the Premises shall not be less than the
value of the Premises prior to the commencement of the work.
11. Landlord Financing of Project. Landlord shall not have the right to mortgage,
pledge, encumber or assign the Premises in whole or in part except in connection with its
financing of the Project through the Bonds issued by Landlord. Copies of the Indenture and the
Leasehold Mortgage securing the Bonds shall be provided to and shall be approved by Tenant,
which approval shall not be unreasonably denied, withheld or delayed. Pursuant to a
subordination, non-disturbance and attornment agreement entered into by Landlord and Tenant
with the Trustee as the beneficiary under the Leasehold Mortgage, so long as Tenant is not in
default under any of the terms, covenants or conditions of this Lease, the beneficiary under the
Leasehold Mortgage shall not disturb Tenant's possessory rights in the Premises in the event
such beneficiary should foreclose the Leasehold Mortgage.
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12. Construction Liens. From and after the Substantial Completion Date, Tenant
shall pay all costs for modifications, alterations and additions done by it or caused to be done by
it on the Premises as permitted or required by this Lease (other than the construction of the
Project) and Tenant shall keep the Premises free and clear of all Liens resulting from
modifications, alterations and additions done by or for Tenant; provided, however, Tenant shall
have the right to contest the correctness or validity of any such Lien by appropriate proceedings
conducted in good faith with due diligence. Within thirty (30) days following written notice
from Landlord, Tenant shall discharge such Lien of record or record a bond which complies
with the requirements of law for eliminating such Lien as an encumbrance against the Premises
if in the reasonable exercise of Landlord's judgment the protection of the Premises or Landlord's
interest therein shall require such payment. In the event Tenant shall fail to so remove any such
Lien, Landlord may take such action as Landlord shall reasonably determine to remove such
Lien and all costs and expenses incurred by Landlord including, without limitation, amounts
paid in good faith settlement of such Lien and attorneys' fees and costs shall be paid by Tenant
to Landlord. Tenant's obligations pursuant to this Section shall survive the Expiration Date.
13. Indemnity and Hold Harmless.
13.1 Indemnification by Landlord. Landlord shall indemnify, defend and hold
harmless Tenant and its elected and appointed officers, officials, representatives, employees,
and agents (the "Indemnified Tenant Parties") from and against any and all liability, demands,
liens, damages, claims, causes of action, expenses, and fees (including reasonable attorneys'
fees and costs and expert witness fees) for bodily injury, property damage, and death
(hereinafter collectively referred to as "Liabilities"), arising out of or relating to the
negligence, acts, errors, or omissions of Landlord including, without limitation, any breach of
this Lease except to the extent that such Liabilities are caused by the negligence or willful
misconduct of Tenant.
Landlord shall require the Developer, Design-Builder and Contractors to agree to and abide by
the indemnification requirements set forth in this Section in favor of Tenant, as such may be
applicable to the work and/or services being provided by Landlord's contractors and consultants.
13.2 Indemnification by Tenant. Tenant shall indemnify, defend and hold
harmless Landlord and its officers, employees, and agents (the "Indemnified Landlord
Parties") from and against any and all Liabilities (as defined in Section 13.1), arising out of or
relating to the negligent acts, errors, or omissions of Tenant including, without limitation, any
breach of this Lease except to the extent that such Liabilities are caused by the negligence or
willful misconduct of Landlord, Developer, the Design-Builder, or their consultants, agents or
employees.
13.3 Survival. The indemnification provisions of this Section shall remain in full
force and effect and survive the termination and/or expiration of this Lease.
14. Minimum Scope of Insurance Coverage for Landlord. After the Effective
Date, Landlord shall at a. minimum maintain insurance coverage of the type and amount
specified on the attached EXHIBIT K.
15. Minimum Scope of Insurance Coverage for Tenant.
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15.1 General Liability. After the Substantial Completion Date, Tenant shall have
the right to self-insure under Section 15.2 or, at its sole cost and expense, shall obtain and keep
in force throughout the Term a Commercial General Liability insurance policy on an occurrence
basis insuring Tenant against claims for injuries to persons and property damage liability.
"Commercial General Liability" insurance shall mean Insurance Services Office form number
(CGOO 001) with a limit of not less than $1,000,000 combined single limit per occurrence,
$5,000,000 aggregate. Tenant agrees to add Landlord and Trustee as additional insureds to any
Commercial General Liability insurance policy.
15.2 Self-Insurance by Tenant. Notwithstanding anything herein to the contrary,
Tenant may self-insure for general liability coverage. Upon request by Landlord or Trustee (the
Trustee having no obligation to make such request) to Tenant's Risk Manager, Tenant shall
provide Landlord and Trustee with at least thirty (30) days' prior written notice of any change in
Tenant's self-insured status and will provide Landlord and Trustee with a certificate of self-
insurance as adequate proof of insurance. If Tenant elects to self-insure as set forth in this
Section, Tenant acknowledges and agrees that Landlord shall have no liability for such losses or
damage which would otherwise have been covered by the general liability insurance which
Tenant could have provided in accordance with Section 15.1, nor shall Tenant's failure to obtain
commercial general liability insurance have any effect on Tenant's obligations under this Lease.
15.3 Workers' Compensation. [Tenant is self-insured for all of its workers'
compensation liability exposure. Tenant shall., at its own expense., maintain through its self-
insurance
elfinsurance program coverage for its workers' compensation liability exposure for the duration of
the Term. Tenant shall provide I..,andlord and Trustee with at least thirty (30) days' prior written
notice of any change in the Tenant's self-insured status and will provide l..,andlord and Trustee
with a certificate of self-insurance as adequate proof of insurance.]
16. Property Insurance.
16.1 Coverage for Premises. From and after the Substantial Completion Date,
Landlord shall cause the Premises to be insured for fire and other perils currently covered by a
special causes of loss commercial property insurance form. Such coverage shall include
eighteen (18) months of rental interruption coverage for the costs of Periodic Rent and
Additional Rent, with Extra Expense coverage and shall name Trustee and Tenant as loss
payee as each of their interests may appear. Landlord shall further cause the Premises to be
insured against the perils of earth movement and flood, either as part of the aforementioned
commercial property policy, or under a separate policy or policies. Such earth movement and
flood insurance shall include eighteen (18) months of rental interruption coverage and shall
name Trustee as loss payee as its interests may appear. Landlord shall cause coverage to be
maintained against loss arising from earth movement and flood so long as such coverage is
available at a commercially reasonable cost and in coverage amounts which are commercially
available, but shall not be in default under this Lease if coverage is no longer written, is
unavailable for properties comparable to the Premises or is not available at commercially
reasonable premium amounts. Landlord will provide Tenant and Trustee with thirty (30) days'
prior written notification of material changes in coverage. Landlord will, upon request, furnish
Tenant and Trustee with satisfactory evidence that such coverage is in effect.
16.2 Coverage for Tenant's Personal Property. Landlord shall have no
obligation to insure any of Tenant's Personal Property.
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17. Waiver of Subrogation. Landlord and Tenant shall cause their respective
property insurance carriers to release and waive all rights of subrogation against the other to the
extent a loss is covered by property insurance in force. Landlord and Tenant hereby mutually
release each other from liability and waive all right of recovery against each other for any loss
from perils insured against under their respective fire insurance policies, including any extended
coverage endorsements hereto; provided, that this provision shall be inapplicable if it would
have the effect of invalidating any insurance coverage of Landlord or Tenant.
18. [Intentionally Omitted.]
19. Destruction.
19.1 Insured Damage. If during the Term, the Premises are partially or totally
destroyed by any casualty that is covered by insurance described in Section 16, rendering the
Premises partially or totally inaccessible or unusable, Landlord shall restore the Premises to
substantially the same condition as they were in immediately before such destruction, if(i) the
insurance proceeds available to Landlord equal or exceed the cost of such restoration, (ii) such
restoration can be completed within a period which is not longer than eighteen (18) months
from date of such destruction, and (iii) such restoration is permitted under then existing Laws
to be done in such a manner as to return the Premises to substantially the same condition as it
was immediately before the destruction. Landlord will advise Tenant and Trustee with respect
to the preceding conditions and, accordingly, whether such restoration of the Premises can
proceed, on or before that date which is ninety (90) days after the date of destruction. If the
foregoing conditions cannot be met, such destruction shall be treated as "Underinsured
Damage" in accordance with the provisions of Section 19.2. The insurance proceeds shall be
retained by Trustee who shall disburse same to Landlord from time to time as the restoration
work progresses, provided, however, that Landlord shall complete such restoration as soon as
reasonably practical, but in any event not longer than that period which is eighteen (18)
months from the date of such destruction.
19.2 Underinsured Damage. If during the Term the Premises are partially or
totally destroyed by any casualty and the conditions set forth in Section 19.1, captioned
"Insured Damage" cannot be met, Landlord shall provide written notice to Tenant and Trustee
within ninety (90) days after the date of destruction. Such notice shall describe the extent of
the destruction, which of the conditions(s) cannot be met, and the estimated time necessary for
restoration of the Premises. Within thirty (30) days of Tenant's receipt of Landlord's notice,
Tenant shall notify Landlord in writing whether Tenant will proceed to satisfy the conditions
which cannot be met, including the deposit of funds with the Trustee sufficient to restore any
Underinsured Damage.
(a) If Tenant so fulfills such conditions, then Landlord shall proceed to
restore the Premises in accordance with the terms agreed between Landlord and Tenant. In that
event, the insurance proceeds shall be retained by Trustee who shall disburse same to Landlord
from time to time as the restoration work progresses.
(b) If Tenant elects not to fulfill such conditions and the Premises are totally
destroyed, this Lease shall terminate and the entire amount of the insurance proceeds held by
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Trustee shall be used to repay or defease Bonds and to reimburse Trustee for any costs incurred
by Trustee for which it is entitled to reimbursement under the Indenture.
(c) If Tenant elects not to fulfill such conditions and the Premises are
partially destroyed, this Lease shall not terminate, Tenant shall continue to pay Rent subject to
Abatement and the amount of the insurance proceeds held by Trustee shall be disbursed to
Landlord to complete such restoration as Landlord reasonably determines to be practicable to
allow for Tenant's partial use of the Premises for its intended purposes. Any insurance proceeds
not disbursed for such restoration shall be used to repay or defease Bonds and to reimburse
Trustee for any costs incurred by Trustee for which it is entitled to reimbursement under the
Indenture.
(d) If any monies deposited by Tenant in connection with any restoration
pursuant to this Section 19.2 remain after the Premises have been restored, those monies shall be
returned to Tenant.
19.3 Extent of Landlord's Obligation to Restore. If Landlord is required or
elects to restore the Premises or such portion thereof which has been destroyed as provided in
this Section 19, Landlord shall not be required to restore Tenant's Personal Property, such
excluded items being the sole responsibility of Tenant to restore.
19.4 Abatement of Rent. In the event that (i) the Premises are (i) damaged or
destroyed by fire or other casualty following the Rent Commencement Date resulting in
substantial interference with Tenant's right to the use and occupancy of the Premises or (ii) a
defect in Landlord's title occurs, other than a defect that results from Tenant's ownership of the
Land resulting in substantial interference with Tenant's right to the use and occupancy of the
Premises, this Lease shall not terminate (except as provided in Section 19.2), but the Rent
otherwise payable by Tenant hereunder shall be subject to Abatement during the period of such
interference.
20. Condemnation.
20.1 Total Condemnation. If there is a taking or damaging of all or any portion
of the Premises by the exercise of any governmental power, whether by legal proceedings or
otherwise, by a governmental agency with jurisdiction over the Premises or a transfer by
Landlord either under threat of condemnation or while legal proceedings for condemnation are
pending (a "Condemnation") such that there can be no reasonable use of the Premises by
Tenant, as reasonably determined by Tenant, this Lease shall terminate on the date the
condemnor has the right to possession of the Premises. The entire award with respect to a taking
of the Premises (including Tenant's leasehold estate under this Lease) shall be paid to Trustee
and applied at Tenant's direction to repay or defease Bonds or to reimburse Trustee for any costs
incurred by Trustee for which it is entitled to reimbursement under the Indenture. Any
Condemnation proceeds remaining after Bonds have been paid in full shall be paid to Tenant.
20.2 Partial Condemnation. If, prior to Substantial Completion of the Project,
there is a partial taking of the Premises by Condemnation but the Project can be completed
substantially in accordance with the Project Requirements, such condemnation proceeds shall be
paid to Trustee who shall deposit such condemnation proceeds into the Non-Bond Proceeds
Account established under the Indenture for purposes of paying Project Costs. Following
Substantial Completion of the Project, if there is a partial taking of the Premises by
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Condemnation, and Tenant determines that restoration is possible or a reasonable use can be
made of the Premises without restoration, then the condemnation proceeds shall be paid to
Trustee who shall, as applicable, (i) deposit such condemnation proceeds [into the Capital
Repairs Fund and shall disburse such condemnation proceeds to I..,andlord from time to time as
restoration progresses, or (ii) deposit such condemnation proceeds in the Bond Fund to be
used to repay or defease Bonds]. In no event shall this Lease terminate as a result of a partial
taking (except a partial taking which results in no reasonable use of the Premises by Tenant as
determined pursuant to Section 20.1), but Rent hereunder shall be subject to Abatement to the
extent and during the period that the partial condemnation results in substantial interference
with Tenant's right to the use and occupancy of the Premises.
21. Assignment of Project; Subletting. Except as provided in the Indenture
including as described in Section 32.13 below, Landlord shall not sell, transfer, convey or
assign all or any portion of its interest in this Lease or in the Premises (except to Trustee)
without the prior written consent of Tenant and, at the written direction of the holders of a
majority in aggregate principal amount of the Bonds, Trustee and a written opinion from
nationally recognized bond counsel that any such sale, transfer, conveyance or assignment will
not have an adverse effect on the tax exempt status of interest payable on the Bonds. Tenant
shall not sell, transfer, convey or assign all or any portion of its interest in this Lease or in the
Premises without the prior written consent of Landlord and, at the written direction of the
holders of a majority in aggregate principal amount of the Bonds, Trustee together with an
opinion of nationally recognized bond counsel that any such sale, transfer, conveyance or
assignment will not adversely affect the tax exempt status of interest payable on the Bonds.
Notwithstanding the foregoing sentence, Tenant may sublease the Premises or any portion
thereof without the consent of Landlord or Trustee, to the extent and on the terms and
conditions set forth under Section 7 so long as the execution of such sublease would not violate
the provisions of Section 7; provided, however, that under no circumstances shall Tenant be
released or relieved from any of its obligations hereunder.
Any sale, transfer, conveyance, assignment or sublease permitted under this Section shall be in
writing and shall require the purchaser, transferee, grantee, assignee or subtenant to comply fully
with the terms of this Lease, including, without limitation, the provisions of Section 7 regarding
use of the Premises. Tenant shall provide Landlord and Trustee with written notice of any such
sale, transfer, conveyance, assignment or sublease and a copy of all documentation relating
thereto. Any attempted sale, transfer, conveyance, assignment or sublease in material violation of
the requirements set forth in this Section 21 shall be null and void and shall constitute an event of
default under the Indenture.
22. Default by Tenant. The occurrence of any of the following shall constitute an
Event of Default by Tenant under this Lease:
22.1 Payment; Insurance. Failure (a) to make any Periodic Rent or Additional
Rent payments due under this Lease if the failure to pay is not cured within ten (10) Business
Days after written notice of such failure has been given by Trustee or Landlord to Tenant, (b)
failure to make any other payment required if the failure to pay is not cured within fifteen (15)
Business Days after written notice of such failure has been given by Landlord to Tenant, or (c)
failure to maintain insurance coverage as required herein if the failure to maintain such
insurance is not cured within fifteen (15) Business Days after written notice of such failure has
been given by Landlord to Tenant.
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22.2 Other Failure to Perform. Failure to materially perform any other
provision of this Lease if the failure to perform is not cured within thirty (30) days after written
notice of such default has been given by Trustee or Landlord to Tenant. If the default cannot
reasonably be cured within thirty (30) days, then such default shall not constitute an Event of
Default if Tenant commences to cure the default within thirty (30) days and diligently and in
good faith continues to cure the default within one hundred eighty (180) days from the delivery
of such default notice.
22.3 Remedies for Tenant Default. If Tenant commits an Event of Default under
this Section 22 and fails to cure such default within the time period provided therein, then
Landlord shall have the right to pursue any and all remedies available at law or in equity,
including without limitation, the right to (i) terminate this Lease or, with the consent of Tenant,
which consent shall not be unreasonably withheld, to keep this Lease in full force and effect and,
in either event, to re-enter the Premises and eject all parties in possession therefrom and re-let the
Premises as the agent and for the account of Tenant upon such terms and conditions as Landlord
may deem advisable, in which event the rents received on such re-letting will be applied first to
the expenses of re-letting and collection, including expenses necessary for repair or restoration of
the Premises to its condition as of the Rent Commencement Date (taking into account normal
wear and tear), reasonable attorneys' fees and any real estate commissions actually paid, and
second to the [Revenue Fund for the payment of Periodic Pent] and to Landlord for the payment
of Additional Rent, both in accordance with this Lease and the Indenture; or (ii) in lieu of the
above, so long as Landlord or its assignee does not terminate Tenant's right to possession, this
Lease shall continue in effect and Landlord or its assignee shall have the right enforce all of its
rights and remedies under this Lease.
[Notwithstanding the foregoing, in no event shall I:..,andlord have the right to
accelerate any payments owing by Tenant under this I..,ease].
Notwithstanding anything to the contrary herein, in the event Tenant commits an
Event of Default under Section 5.11 and fails to cure such default within the time period
provided herein, Landlord shall have no right to cancel and terminate this Lease or evict Tenant
and re-enter the Premises through an unlawful detainer action or otherwise.
23. Default by Landlord. Landlord shall be in default if Landlord fails to perform
its obligations (i) within five (5) Business Days after notice by Tenant specifying the
obligation which Landlord has failed to perform if such failure occurs prior to the Substantial
Completion Date and (ii) within thirty (30) days after notice by Tenant specifying the
obligation which Landlord has failed to perform if such failure occurs after the Substantial
Completion Date; provided, that if the nature of Landlord's obligation is such that more than
five (5) Business Days or thirty (30) days, as applicable, are required for performance,
Landlord shall not be in default if Landlord commences diligent performance within such
period following Tenant's notice and thereafter completes performance within a reasonable
time. In the event that Landlord fails to cure any such default within the time periods permitted,
Tenant shall have the right to pursue any and all remedies available at law or in equity, or have
the option to pursue such remedies after resort to the procedure in EXHIBIT F; provided,
however, that Tenant shall have (i) no right to offset against Rent payable under this Lease and
(ii) no right to terminate this Lease or the Ground Lease so long as the Bonds remain
outstanding.
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24. Signs. Tenant shall have the right to place identification signage, other signage,
advertisements, awnings, banners or other exterior decorations on the exterior of the Premises
without any further consent or approval from Landlord. Any sign that Tenant has the right to
place, construct and maintain shall comply with all laws, and Tenant shall obtain any approval
required by such laws. Landlord makes no representation with respect to Tenant's ability to
obtain such approval.
25. Landlord's Right to Enter the Premises. Landlord shall have the right to enter
the Premises at reasonable times during Tenant's normal business hours for the purposes listed
below; provided, however, Landlord acknowledges and agrees to comply with Tenant's requests
regarding security. Landlord shall conduct its activities on the Premises as allowed in this
Section in a manner that will cause the least possible inconvenience, annoyance or disturbance
to Tenant. Should any disturbance or security violation occur, then Tenant may require that all
future entries into the Premises be only during working hours after twenty-four (24) hours'
written notice from Landlord to Tenant. This does not affect Landlord's right to enter in case of
emergency. Landlord shall not be liable in any manner for any inconvenience, annoyance,
disturbance, loss of business, nuisance, or other damage arising out of Landlord's entry on the
Premises as provided in this Section, except damage resulting from the negligent acts, willful
misconduct or omissions of Landlord. Tenant shall not be entitled to an abatement or reduction
of Rent if Landlord exercises any right reserved in this Section.
25.1 Condition. To determine whether the Premises are in good condition,
whether Tenant is complying with its obligations under this Lease and to perform any
maintenance, repair or replacement obligations of Landlord pursuant to Section 10.
25.2 Notices. To serve, post or keep posted any notices required or allowed
under the provisions of this Lease.
26. No Encumbrances by Landlord. Except to the extent expressly authorized in
Sections 11 and 21, Landlord shall not at any time during the Term sell, transfer, lease (other
than to Tenant pursuant to this Lease), convey, encumber (other than to Trustee pursuant to the
Leasehold Mortgage), pledge (other than to Trustee pursuant to the Indenture), hypothecate or
otherwise grant a security interest in the Premises or any portion thereof.
27. Right to Estoppel Certificates. Each party, within fifteen (15) days after notice
from the other party, shall, unless it is in default hereunder, execute and deliver to the other
party, in recordable form, a certificate stating that this Lease is unmodified and in full force and
effect, or in full force and effect as modified and stating the modifications. Unless the party
requested to provide such a certificate is in default, failure to deliver the certificate within such
fifteen (15) day period shall be conclusive upon the party failing to deliver the certificate for the
benefit of the party requesting the certificate and any successor to the party requesting the
certificate, that this Lease is in full force and effect and has not been modified except as may be
represented by the party requesting the certificate.
28. Limitation on Landlord's Liability. Notwithstanding any provision in this
Lease to the contrary, Tenant shall look solely to the estate and property of Landlord in the
Property and buildings constituting the Premises, any insurance proceeds or condemnation
proceeds payable to Landlord under this Lease, any sums paid to Landlord under the
Development Agreement and any amounts payable to Landlord under any warranty or other
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contract with respect to the Project for the collection of any judgment requiring the payment of
money by Landlord or for the enforcement of any other judgment or remedy against Landlord
and no other assets of Landlord shall be subject to levy, execution or other procedure for the
satisfaction of Tenant's remedies.
29. Attorneys' Fees. In the event suit is brought by Landlord or Tenant relating to
this Lease, including for the breach of any covenant or condition of this Lease, the party
prevailing on a majority of the issues shall be entitled to a reasonable sum for attorney' fees,
witness fees, and court costs, including costs of appeal.
30. Surrender. Tenant shall, on the Expiration Date, surrender and deliver up the
Premises, including all improvements then located thereon and the appurtenances thereto, into
the possession of Landlord, in good order, condition and repair, free and clear of all lettings and
occupancies, and free and clear of all liens and encumbrances other than those existing on the
date of this Lease and those, if any, created by Landlord, without any payment or allowance
whatsoever by Landlord, unless Tenant exercises the Option to Purchase as set forth in Section
4.3 and 4.4 of this Facilities Lease Agreement. Tenant shall execute, acknowledge and deliver
to Landlord such instruments of further assurance as in the opinion of Landlord are necessary or
desirable to confirm or perfect Landlord's right, title and interest in and to all of the above-
described property.
30.1 Conveyance of Premises. Notwithstanding Tenant's obligation to surrender
the Premises on the Expiration Date, Landlord shall nonetheless be obligated to convey the
Premises to Tenant pursuant to Sections 4.3 and 4.4 above.
30.2 Survival. The provisions of this Section shall survive the expiration or
termination of this Lease.
31. Broker. Landlord and Tenant each represent to the other that neither is
represented by any broker, agent or finder with respect to this Lease in any manner. Each party
agrees to indemnify and hold the other party harmless from and against any and all liability, costs,
damages, causes of action or other proceedings instituted by any other broker, agent or finder,
licensed or otherwise, claiming through, under or by reason of the conduct of the indemnifying party
in any manner whatsoever in connection with this Lease.
32. Miscellaneous Provisions.
32.1 Entire Agreement. This Lease sets forth the entire agreement of the
parties as to the subject matter hereof and supersede all prior discussions and understandings
between them. This Lease may not be amended or rescinded in any manner except by an
instrument in writing signed by a duly authorized officer or representative of each party hereto
and the consent of the Bondholders if required pursuant to the provisions of Section 32.13.
Furthermore, Landlord shall not assign nor amend the Development Agreement without the
Tenant's prior approval, which approval shall not be unreasonably withheld.
32.2 Quiet Enjoyment So long as Tenant pays the Periodic Rent,
Additional Rent, and all other sums payable under this Lease as and when due and performs
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Tenant's covenants and complies with all of the terms and provisions of this Lease, Landlord
covenants that Tenant shall at all times during the Term of this Lease peaceably and quietly
have, hold and enjoy the use of the Premises.
32.3 Governing Law. This Lease shall be governed by and construed and
enforced in accordance with the laws of the State of Florida.
32.4 Severability/Construction of Lease. Should any of the provisions of this
Lease be found to be invalid, illegal, unconstitutional or unenforceable by any court of
competent jurisdiction, such provision shall be stricken and the remainder of this Lease shall
nonetheless remain in full force and effect unless striking such provision shall materially alter
the intention of the parties. The parties hereby acknowledge and agree that each was
represented by counsel and this Lease was negotiated and drafted at arms' length.
Accordingly, the judicial rule of construction that any ambiguities are to be construed against
the drafting party shall be inapplicable in the interpretation of this Lease. The provisions of
this Lease shall be construed as a whole according to their common meaning and consistent
with the other provisions contained herein in order to achieve the objectives and purposes of
this Lease.
32.5 JurisdictionNenue. In the event any action is brought to enforce any of the
provisions of this Lease, the parties agree to be subject to exclusive jurisdiction [ ]
32.6 Waiver. No waiver of any right under this Lease shall be effective unless
contained in writing signed by a duly authorized officer or representative of the party sought
to be charged with the waiver and no waiver of any right arising from any breach or failure to
perform shall be deemed to be a waiver of any future right or of any other right arising under
this Lease.
32.7 Captions. Section captions contained in this Lease are included for
convenience only and form no part of the agreement between the parties.
32.8 Notices. All notices or requests required or permitted under this Lease shall
be in writing, shall be personally delivered or sent by certified mail, return receipt requested,
postage prepaid, by nationally recognized overnight courier or by email and shall be deemed
given when so delivered, received or emailed (provided sender obtains a confirmation of
receipt). All notices or requests to any party shall be sent to all other parties as follows:
If to Landlord:
[ ]
If to Tenant:
[ ]
If to Trustee:
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Any party may change the address to which notices shall be sent by notice to the other party in
the manner and with the effect set forth in this Section.
32.9 Binding Effect. Subject to the provisions of Sections 11 and 21, this Lease
shall be binding upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. No permitted assignment of this Lease or Tenant's rights hereunder
shall be effective against Landlord unless and until an executed counterpart of the instrument
of assignment shall have been delivered to Landlord and Landlord shall have been furnished
with the name and address of the assignee. The term "Tenant" shall be deemed to include the
assignee under any such permitted assignment. The term "Landlord" shall include any
successors to or assigns of the Landlord's interest in the Premises following any foreclosure of
the Leasehold Mortgage, including Trustee (except with respect to the Landlord's obligations
and representations hereunder) or any purchaser at a trustee's or sheriffs sale of the Premises.
Notwithstanding anything to the contrary herein, Landlord and Tenant agree that Trustee, in
acting under this Lease, acts not in its individual capacity but solely as Trustee under the
Indenture and Trustee shall be entitled to the same rights, protections and immunities hereunder
to which it is entitled as Trustee under the Indenture. In furtherance and not in limitation of the
foregoing, the exercise of the rights of Trustee and the duties of Trustee hereunder, or under any
assignment hereof to Trustee, shall be, in each and every case, subject to the express provisions
of Articles VII and VIII of the Indenture; provided, that the Indenture shall not operate to limit
Trustee's rights to compensation and indemnification provided hereunder.
32.10 Gender and Number. As used in this Lease, the masculine shall include
the feminine and neuter, the feminine shall include the masculine and neuter, the neuter shall
include the masculine and feminine, the singular shall include the plural and the plural shall
include the singular, as the context may require.
32.11 Recording; Memorandum of Lease. Neither Landlord nor Tenant shall
record this Lease without the written consent of the other; provided, however, that a
Memorandum of this Lease in the form attached hereto as EXHIBIT E and by this reference
incorporated herein shall be recorded upon the Effective Date.
32.12 Amendment of Lease. So long as the Bonds remain outstanding, any
amendment of this Lease must comply with applicable provisions of the Indenture. Without
limitation, Landlord and Tenant may, from time to time, amend this Lease to exclude any surplus
portion of the Property in accordance with Section 9.06 of the Indenture.
32.13 Time Is of the Essence. Time is of the essence in the performance of each
party's obligations under this Lease. Each party will carry out its obligations under this Lease
diligently and in good faith.
33. Reserved.
34. Force Majeure. Landlord and Tenant shall not be deemed in default with
respect to the performance of any of the terms, conditions and covenants of this Lease (other
than the payment of Rent or other amounts due hereunder) if Landlord's or Tenant's failure to
perform shall be due to any strike, lockout, war, sabotage, governmental action, Unavoidable
Delays as defined in the Development Agreement, or act of God or other cause beyond the
reasonable control of Landlord or Tenant, providing such cause is not due to the willful act or
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neglect of Landlord or Tenant. In the event either party is delayed or prevented from
performing any of its respective obligations under this Lease (other than the payment of Rent
or other amounts due hereunder) due to force maj eure, then the time period for performance of
such obligations shall be extended for the period of such delay. Nothing contained in this
Section 34 shall be deemed to extend the Rent Commencement Date nor to excuse Tenant's
obligation to pay Rent as and when required by the terms of this Lease.
35. Failure to Achieve Substantial Completion of Project by the Project
Delivery Date. In the event that Substantial Completion of the Project is not achieved by the
Project Delivery Date (as defined in the Development Agreement), the following provisions shall
apply until such time as Substantial Completion is achieved.
35.1 Enforcement of Development Agreement. Landlord shall vigorously
enforce the provisions of the Design-Build Contract with regard to the failure of the Design
Builder to cause Substantial Completion of the Project to occur by the Project Delivery Date.
Amounts received from Design-Builder thereunder for the payment of debt service on the Bonds
shall be deposited with the Trustee as provided under the Indenture.
35.2 Enforcement of Design-Build Contract. Landlord shall vigorously
enforce the provisions of the Design-Build Contract including, without limitation, provisions
requiring the payment of liquidated damages in the event Design-Builder fails to achieve
completion of construction of the Project by the date set forth therein. Amounts received from
Design-Builder and available for payment of debt service on the Bonds shall be deposited with
the Trustee as provided under the Indenture.
IN WITNESS WHEREOF, the City has caused this Facilities Lease to be duly executed in its
name and behalf and CFP has caused this Facilities Lease to be duly executed in its name and behalf on
the dates set forth below.
CITY OF BOYNTON BEACH,FLORIDA
CITY OF BOYNTON BEACH
BY:
STEVEN B. GRANT,MAYOR
DATE:
ATTEST:
BY:
City Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
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James A. Cherof
City Attorney
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CFP BOYNTON BEACH TOWN SQUARE, LLC, a
Florida limited liability company
BY:
By:
Thomas Anderson
DATE:
(SEAL)
ATTEST:
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
TOWN SQUARE PROPERTY
A PARCEL OF LAND LYING IN SECTION 28, TOWNSHIP 45 SOUTH, RANGE 43 EAST, SAID
LAND BEING DESCRIBED AS FOLLOWS:
1) LOTS 2 THRU 25, OF THE PLAT OF BOYNTON CENTER, AS RECORDED IN PLAT
BOOK 8, PAGE 12, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA,
LESS RIGHT OF WAY FOR N.E. 2ND AVENUE (BOYNTON BEACH BLVD) AND
SEACREST BLVD.
2) ALL OF LOTS 1 THRU 6,AND THAT PORTION OF PUBLIC SCHOOL TRACT SHOWN IN
BLOCK 14; ALL OF LOTS 1-6, BLOCK 15; AND ALL OF LOTS 1-6, BLOCK 16, LESS THE
RIGHT-OF-WAY FOR SEACREST BOULEVARD, AND SUBJECT TO EASEMENTS AND
RIGHTS OF WAY OF RECORD, LYING IN THE PLAT OF SAWYER'S ADDITION TO
THE TOWN OF BOYNTON IN PLAT BOOK 1, PAGE 69, PUBLIC RECORDS OF PALM
BEACH COUNTY, FLORIDA.
NORTH-EAST 1ST STREET PROPERTY (Fire Station)
LOTS 11, 12, 13 AND 14 OF BLOCK 3, TOWN OF BOYNTON BEACH, ACCORDING TO THE
PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 23 OF THE PUBLIC RECORDS OF
PALM BEACH COUNTY, FLORIDA.
HIGH RIDGE ROAD PROPERTY (Police Station)
[To Be Provided]
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EXHIBIT B
SCHEDULE OF PERIODIC RENT
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EXHIBIT C
PRELIMINARY PLANS
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EXHIBIT D-1
PROJECT SCHEDULE
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EXHIBIT D-2
PROJECT BUDGET
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EXHIBIT E
MEMORANDUM OF FACILITIES LEASE
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EXHIBIT F
DISPUTE RESOLUTION PROCEDURE
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EXHIBIT G
FORM OF ELECTION: OPTION TO PURCHASE
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EXHIBIT H
FORM OF NOTICE ELECTION: PARTIALLY PREPAY PERIODIC RENT
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EXHIBIT I
MINIMUM INSURANCE REQUIREMENTS: DEVELOPER
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EXHIBIT J
MINIMUM INSURANCE REQUIREMENTS: DESIGN-BUILDER
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EXHIBIT K
MINIMUM INSURANCE REQUIREMENTS: LANDLORD
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EXHIBIT N
FINANCED FF&E
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1.H.
AGENDA ITEMS
3/13/2018
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
REQUESTED ACTION BY COMMISSION: PROPOSED RESOLUTION NO. R18-045-Authorize the
Mayor to sign the New Markets Tax Credit(NMTC) Consulting agreement with Atwater Infrastructure
Partners, LLC to provide consulting services in connection with the potential allocation of New Market Tax
Credits to fund the redevelopment of the Old High School and related services.
EXPLANATION OF REQUEST:
The consulting agreement will allow Atwater to assist the City in the marketing the project and securing New
Market Tax Credits funding. Based on initial project costs and research, Atwater is anticipating the project will
qualify for approximately $2.5M worth of NMTC's.
This funding will reduce the amount of project funding that the City will need to allocate. I n addition the City
will be eligible for a low interest leverage loan for the remainder of the construction costs. Atwater will review
potential financial institutions for this and coordinate with the City. The leverage loan does not have a pre-
payment penalty so the City can pay it off at any time. The intent is to pay off the loan with City and CRA
funds within the next 12-18 months.
HOW WILL THIS AFFECT CITY PROGRAMS OR SERVICES?
FISCAL IMPACT:
The allocation of New Market Tax Credits can provide approximately $2.5M worth of funding that can be used
for the rehabilitation of the High School.
ALTERNATIVES: Do not approve consulting agreement
STRATEGIC PLAN: Energetic Downtown: Focal Point for Boynton Beach
STRATEGIC PLAN APPLICATION:
CLIMATE ACTION: No
CLIMATE ACTION DISCUSSION:
Is this a grant? No
Grant Amount:
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ATTACHMENTS:
Type Description
D Resolution Resolution approving NIVITC Consultant
Agreement with Atwater
D Agreement NIVITC Consulting Agreement
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I RESOLUTION NO. R18-
2 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
3 FLORIDA, APPROVING AND AUTHORIZE THE MAYOR TO
4 SIGN THE NEW MARKETS TAX CREDIT(NMTC)CONSULTING
5 AGREEMENT WITH ATWATER INFRASTRUCTURE
6 PARTNERS, LLC TO PROVIDE CONSULTING SERVICES IN
7 CONNECTION WITH THE POTENTIAL ALLOCATION OF NEW
8 MARKET TAX CREDITS TO FUND THE REDEVELOPMENT OF
9 THE HIGH SCHOOL AND RELATED SERVICES; AND
10 PROVIDING AN EFFECTIVE DATE.
11 WHEREAS; the Consulting Agreement will allow Atwater to assist the City in the
12 marketing the project and securing New Market Tax Credits funding; and
13 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
14 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
15 Section 1. Each Whereas clause set forth above is true and correct and incorporated
16 herein by this reference.
17 Section 2. The City Commission of the City of Boynton Beach,Florida does hereby
18 approve and authorize the Mayor to sign the NMTC Consulting Agreement with Atwater
19 Infrastructure Partners, LLC., which sets forth the exclusive understanding for Atwater to
20 provide consulting services in connection with potential allocation and monetization of New
21 Market Tax Credits to fund the redevelopment of the facility located at 126 East Ocean Avenue,
22 Boynton Beach, a copy of said Agreement is attached hereto as Exhibit"A".
23 Section 3. That this Resolution shall become effective immediately upon passage.
24
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25 PASSED AND ADOPTED this day of , 2018.
26 CITY OF BOYNTON BEACH, FLORIDA
27
28 YES NO
29
30 Mayor— Steven B. Grant
31
32 Vice Mayor—Justin Katz
33
34 Commissioner—Mack McCray
35
36 Commissioner—Christina L. Romelus
37
38 Commissioner—Joe Casello
39
40 VOTE
41 ATTEST:
42
43
44
45 Judith A. Pyle, CMC
46 City Clerk
47
48
49 (City Seal)
50
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NMTC Consulting Agreement
This New Markets Tax Credit("NMTC") Consulting Agreement(the "Agreement") dated March 9,
2018 (the "Effective Date") is by and between City of Boynton Beach, FL, a Florida municipality
("Sponsor"), and Atwater Infrastructure Partners, LLC, a Florida Corporation ("Atwater"). This
Agreement sets forth the exclusive understanding between Sponsor and Atwater with respect to
Atwater's agreement to provide certain consulting services to Sponsor in connection with the potential
allocation and monetization of NMTCs to fund the redevelopment of the facility located at 126 E
Ocean Ave.,Boynton Beach,FL(collectively,the"Project").
Description of*Transaction
Atwater has expertise with New Markets Tax Credits ("NMTC"), including but not limited
to relationships with Community Development Entities ("CDEs")that have received allocations of
NMTCs and debt and equity investors interested in participating in NMTC transactions.
Sponsor desires to engage Atwater to perform consulting work respect to the possible allocation, and
monetization of NMTCs necessary to fully fund the Project.
Accordingly, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sponsor and Atwater hereby agree as follows:
1. Services to be provided by Atwater. Sponsor hereby engages Atwater on an exclusive
basis, as the Sponsor's NMTC consultant, to assist in determining if the development of the
Project will qualify for NMTCs, and to provide certain additional consulting services
described in Section 2 and in the Scope of Work attached hereto as Exhibit A (collectively,
the "Services"). Atwater hereby accepts such engagement in accordance with the terms and
conditions set forth in this Agreement. Atwater shall have no duty or obligation to provide any
services other than the Services, and no work beyond the Services shall be performed by Atwater
unless such services(and any additional compensation for such services)have been approved in
by Sponsor and Atwater by duly approved amendment to this Agreement or duly approved
separate agreement.
Specifically, Atwater will be responsible for identifying or securing a"leverage loan" for
the Project. The source for any leverage loan for the Project will be identified by the
Atwater. Furthermore, the Sponsor requires and desires support from Atwater in finding
and securing a leverage lender for the leverage loan, the compensation for this service is
fully covered under this agreement.
Atwater shall be solely responsible for determining the details, method and means of
performing the Services. Atwater shall devote sufficient time to perform the Services
required by this Agreement in a competent and timely manner.
Nothing in this Agreement shall preclude (i) Atwater from representing any other party
involved in transactions similar to those described in this Agreement and earning a fee
for such services, or (ii) Atwater or its affiliates from earning additional compensation in
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connection with services provided to or in connection with the Project (other than the
Services).
2. Structure. The process of obtaining NMTC is dependent on many factors, including,
without limitation, a CDE providing its allocation of NMTCs to the Project. As described
on Exhibit A, Atwater will assist Sponsor in securing an allocation of NMTCs for the Project
on terms acceptable to Sponsor, in structuring the Project financing so as to utilize NMTCs,
and in monetizing the NMTCs through participation of an NMTC tax credit investor.
3. Compensation to Atwater. Except as otherwise provided herein, Atwater will be
compensated only if the Project is funded directly with the benefit of NMTCs, with the
exception of a $25,000 retainer ("Retainer Fee"), which will be credited back to the project
Sponsor when the NMTC Loans fund. The fee payable to Atwater(the"Performance
Fee") shall be equal to $250,000. The Performance Fee shall be paid in full in a single
payment from the proceeds of monetizing the NMTCs at the QEI closing. In the event that
the Sponsor determines at any time prior to QEI closing, in its sole and absolute discretion,
not to proceed with the transaction or is unsuccessful in securing NMTC allocation, then
Atwater shall only be entitled to retain the $25,000 Retainer Fee for its time and services.
Atwater shall not be entitled to retain the Retainer Fee if Sponsor terminates this
Agreement pursuant to Section 21 (Term and Termination), herein below for Cause. The
Retainer Fee will be earned and payable by Sponsor at such time Atwater presents Sponsor
with a commitments, non-binding letters or memoranda of intent or similar documents
from a CDE with Allocation.
In addition, in any action initiated by Atwater in connection with the enforcement of
its rights under this Agreement, the prevailing party shall be entitled to its reasonable
attorneys' fees, costs and expenses.
4. Exclusivity. During the period beginning on the Effective Date and ending 180 calendar
days later, or such earlier date on which this Agreement shall have been terminated for
Cause, as defined herein below, Atwater shall be the exclusive representative of Sponsor in
seeking NMTC financing or equity for the Project.
Atwater will have 180 calendar days to obtain commitments, non-binding letters or
memoranda of intent or similar documents ("Commitments") for NMTC Allocation
and/or a NMTC equity investor for the Project. If Atwater can secure Commitments, the
parties will proceed to close the transaction in a reasonable amount of time(as determined
by NMTC investors and CDEs). However, Sponsor may, at any time prior to QEI closing,
in its sole and absolute discretion, determine not to proceed with transaction. Should
Atwater obtain Commitments from particular CDEs at any time during the term of this
Agreement, then those CDEs shall remain exclusive to Atwater, and Atwater shall be
entitled to a Performance Fee in connection with the closing of any NMTC transaction
with such CDEs with respect to the Project (payable immediately at the time of such
closing), unless Sponsor shall have terminated this Agreement for Cause. In addition,
Atwater shall be entitled to the Performance Fee with respect to any NMTC transaction
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that occurs with respect to the Project with any CDE or CDEs introduced to Sponsor(but
for which a Commitment is not actually obtained) by Atwater for a period of eighteen
(18) months commencing from the date of any such introduction provided that Sponsor
is given written notice identifying such CDE or CDEs within 30 calendar days of such
introduction. For purposes of the previous sentence, the term "introduce(d)" or
"introduction" shall include the discussion (e.g., e-mail exchanges, in-person meetings,
teleconferences, etc., in which the Project was discussed between Atwater and the CDE)
of the Project by Atwater, on behalf of the Sponsor, with the CDE, irrespective of whether
the Sponsor had any prior contact with or knowledge of the CDE in any context other
than with respect to the Project.
5. Third Party Professional Services. If and when Atwater concludes that it is advisable
that Sponsor retain third party professional services, such as legal and accounting services,
in order to more thoroughly evaluate or otherwise facilitate the financing described in this
Agreement, Atwater shall so advise Sponsor and shall make referrals to such third party
providers. Sponsor is not obligated to engage the referred third party providers and can
engage third party providers of their choosing. If and when Sponsor chooses to engage
such professional services, Sponsor agrees to pay for such services from transaction
proceeds, contingent upon the successful QEI closing. Atwater shall have no responsibility or
obligation to assume payment of any third parry professional services fees, costs or expenses
associated with the Services set forth in this section.
6. Confidentiality. All opinions and advice(written or oral) given by Atwater to Sponsor in
connection with this engagement are intended solely for the benefit of and use
by Sponsor in considering the transaction to which they relate, and Sponsor agrees that
no person or entity other than Sponsor, its accountants, lenders, lawyers and other
advisors shall be entitled to make use of or rely upon the advice of Atwater to be given
hereunder, and no such opinion or advice shall be used for any other purpose or reproduced,
disseminated, quoted or referred to at any time, in any manner or for any other
purpose without Atwater's prior written consent. The public approval of this Agreement
by the Sponsor, or any subsequent approval of a modification or extension of this Agreement
shall not create a breach of confidentiality defined herein. Any obligation of Sponsor in this
section is subject to Sponsor's obligations created by any law, rule, regulation or other
authority related to public records, including without limitation, the Florida Public Records
Act and/or Statutes and any judicial or administrative order or rule.
7. Independent Contractor. Sponsor acknowledges that Atwater shall perform its services
hereunder as an independent contractor and not as a partner, employee or an affiliate of
Sponsor. It is expressly understood and agreed to by the parties hereto that Atwater
shall have no authority to act for or bind Sponsor, and that Atwater owes no duty or obligation
to Sponsor except as specifically described in this Agreement. However, Atwater shall, in
carrying out its responsibilities hereunder, have a fiduciary duty to act on behalf of the
Sponsor and represent its interests. Sponsor assumes no liability for Atwater's actions and
performance, nor assumes responsibility for taxes, bonds, payments or other commitments,
implied or explicit by or for Atwater. Atwater acknowledges that it is aware that because it
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is an independent contractor, Sponsor is making no deductions from its fee and is not
contributing to any fund on its behalf. Atwater disclaims the right to any fee or benefits
except as expressly provided for in this Agreement.
8. Reliance. Sponsor recognizes and confirms that, in fulfilling its engagement hereunder,
Atwater will use and rely on data, material and other information furnished to Atwater by
Sponsor and its advisors. Sponsor acknowledges and agrees that in performing its
services under this Agreement, Atwater may rely upon the data, material and other
information supplied by Sponsor without independently verifying the accuracy,
completeness or veracity of the data, material and other information.
9. Investment Agreement. Sponsor understands and agrees that any NMTC investment for
the Project will be pursuant to additional contractual arrangements between Sponsor,
affiliates, and Atwater and/or the CDE's. The terms of such agreements may incorporate
many or all of the terms contained in this Agreement, as well as additional provisions to
be agreed upon by the parties to an Investment Agreement. However, Sponsor may, at any
time prior to QEI closing, in its sole and absolute discretion, determine not to proceed with
transaction.
10. No Insurer of Project Success. Atwater represents that it has a proven record of success in
obtaining NMTCs, is aware of the Project, has determined that such Project is preliminarily
eligible for NMTC, based on its census tract, and shall use its best efforts to obtain such
financing. Sponsor acknowledges and agrees that, although Atwater shall act responsibly
and faithfully in using its best efforts in performing the services required pursuant to this
Agreement, Atwater does not ensure or guarantee the success of the Project, economically or
otherwise. Sponsor agrees and acknowledges that Atwater is not providing legal, tax or
accounting advice and that Sponsor will rely on legal advice of its own tax, legal and
accounting advisors and counsel for such matters, and will make its own independent analysis
and decision regarding any transaction involving the Project.
The Services provided by Atwater pursuant to this Agreement are intended to assist
Sponsor with obtaining funding to develop the Project however, this Agreement does not
transfer to Atwater the obligation to develop the Project. Sponsor remains the exclusive
decision-making authority over all matters relating to the construction and renovation of
the Project and the transactions contemplated by this Agreement. Atwater shall have no
responsibility for any action or inaction taken by Sponsor relating to a Project. In no event
shall Sponsor be deemed to have delegated to either Atwater, or to any other person or
entity (including, without limitation, any investor, co-general partner, property manager,
lender, state tax credit agency, partner or other third party) any of Sponsor's duties,
obligations or responsibilities with respect to development of the Project.
11. Representations, Warranties and Covenants. Each party to this Agreement represents
and warrants to the other that: (i)it has the requisite power and authority to execute, deliver
and perform their respective obligations under this Agreement, (ii)this Agreement is valid,
binding and enforceable against it in accordance with the terms of this Agreement, except
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as may be subject to applicable bankruptcy, insolvency, moratorium or other similar laws,
now or hereinafter in effect, relating to or affecting the rights of creditors generally and by
legal and equitable limitations, and (iii) to the knowledge of such party, there is no
litigation, proceeding or investigation pending or threatened against such party (or any
director, manager, officer, owner or employee of such party) which would negatively
impact such party's ability in to perform its obligations under this Agreement.
12. Counterparts. This Agreement may be executed in any number of counterparts,
which together shall constitute one and the same original document.
13. Assignment; Amendment. This Agreement is not assignable and cannot be modified or
changed, nor can any of its provisions be waived, except by the mutual agreement in
writing of both parties.
14. Severability. Each paragraph, term or provision of this Agreement shall be considered
severed and if, for any reason, any paragraph, term or provision is determined to be
invalid or contrary to any existing or future law or regulation, such will not impair
the operation, or affect the remaining portions, of this Agreement.
15. Entire Agreement. This Agreement constitutes the entire Agreement between the
parties concerning the subject matter hereof, and any additional conditions or terms must
be agreed to by both parties and expressed in a written agreement executed by the
parties.
16. Governing Law. This Agreement will be governed and construed in accordance with
the laws of the State of Florida including all matters of construction, performance and
validity without giving effect to the principles of conflicts of law.
17. Joint Preparation; Advice of Counsel. The parties acknowledge that they have
participated jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by such parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement. Each party acknowledges that, in executing this Agreement, such party
has had the opportunity to seek the advice of independent legal counsel, and has read and
understood the terms and provisions of this Agreement.
18. Cooperation. The parties shall cooperate with each other and furnish each other with all
reasonably available information needed to apply for and obtain all financing, tax credits
and approvals, and Sponsor shall execute whatever instruments are reasonably necessary
and take whatever action is reasonably necessary to obtain such financing, tax credits,
and/or approvals.
19. Limited Liability. Atwater shall have no liability to Sponsor or any affiliate or
successor of Sponsor for any reason if it is determined that the Project fails to
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qualify for NMTCs, or if the Project is unable to be developed or renovated with NMTC
financing for any reason.
20. Term and Termination. This Agreement will be effective as of the Effective Date and
shall remain in effect until all Services required hereunder shall have been performed
within the time frames established herein and all compensation earned hereunder shall have
been paid. Notwithstanding the foregoing, Sponsor shall have the right to terminate this
Agreement for by providing written notice to Atwater. In the event that this Agreement is
terminated for any reason other than for Cause, the Sponsor shall immediately pay any and
all expenses incurred by Atwater in connection with this this Agreement, but only to the
extent such expenses are in accordance with Section 3, herein, and in addition to any other
amounts that due to Atwater under this Agreement.
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Atwater— City of Boynton Beach, FL
NMTC Consulting Agreement
Signature Pak
Executed as of the date first written above.
CITY OF BOYNTON BEACH, ATWATER INFRASTRUCTURE
FLORIDA PARTNERS, LLC
By: By:_
J. Albert Lemus,
By: Partner
Title:
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Exhibit A: Scope of Work
• Atwater understands that the Project will have a total project cost of
between approximately $12,000,000 to $15,000,000 dollars
Project Milestones & Timeline
• Within 7 days of the Effective Date, Sponsor shall assign a Project Manager
to work exclusively with Atwater.
• Atwater will work with the Project Manager to ascertain all Project details,
including,but not limited to:
■ Construction Costs
■ Sources of Funds
■ Construction Timeline
■ Identify Community Outcomes
■ To Be Completed: 30 Days after a Project Manager is
assigned, Atwater will prepare a written memo summarizing
the potential NMTC Structure customized to reflect actual
Project information (it being understood that the failure of the
Sponsor to provide information requested by Atwater within 21
days of such request shall constitute a breach of this Agreement
by the Sponsor)
• Atwater will prepare a Project summary and no less than two NMTC
Community Development Entities("CDEs") Intake Forms
■ To Be Completed: 60 Days after a Project Manager is Assigned and all
information requested by Atwater is provided by the Sponsor or Project
Manager(it being understood that the failure of the Sponsor to provide
information requested by Atwater within 21 days of such request shall
constitute a breach of this Agreement by the Sponsor)
• Atwater will secure NMTC Commitments from CDEs for the Project.
To Be Completed: 90 Days after the Effective Date
• Throughout the term of this Agreement, Atwater will be available at
Sponsor's request to consult with, or present to, Sponsor's staff,
Commissioners, and consultants, concerning NMTC transactions,
including by phone and in-person meetings.
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1.1.
AGENDA ITEMS
3/13/2018
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
REQUESTED ACTION BY COMMISSION: PROPOSED RESOLUTION R18-046-Authorize the
Mayor to sign the following agreements with J KM Developers/Blackrock or its successors and assigns, for (1)
The sale and purchase of real property owned by the city, and (2)A Development Agreement for Multi-Family
rental housing with associated parking facilities, and (3) a parking license to provide parking for city facilities;
and (4) an option agreement City re-acquisition of real property, all in furtherance of development of the City's
Town Square Project.
EXPLANATION OF REQUEST:
In connection with construction phase of Town Square project.
Agreements will be available in advance of the Commission meeting.
HOW WILL THIS AFFECT CITY PROGRAMS OR SERVICES?
FISCAL IMPACT:
ALTERNATIVES:
STRATEGIC PLAN:
STRATEGIC PLAN APPLICATION:
CLIMATE ACTION:
CLIMATE ACTION DISCUSSION:
Is this a grant? No
Grant Amount:
ATTACHMENTS:
Type Description
D Resolution R Std - J KM
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I RESOLUTION NO. R18-
2 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
3 FLORIDA, APPROVING AND AUTHORIZING THE MAYOR TO
4 SIGN THE FOLLOWING AGREEMENTS WITH JKM
5 DEVELOPERSBLACKROCK OR ITS SUCCESSORS AND
6 ASSIGNS, FOR (1) THE SALE AND PURCHASE OF REAL
7 PROPERTY OWNED BY THE CITY, AND (2) A DEVELOPMENT
8 AGREEMENT FOR MULTI-FAMILY RENTAL HOUSE WITH
9 ASSOCIATED PARKING FACILITIES, AND (3) A PARKING
10 LICENSE TO PROVIDE PARKING FOR CITY FACILITIES; AND
11 (4) AN OPTION AGREEMENT FOR CITY RE-ACQUISITION OF
12 REAL PROPERTY, ALL IN FURTHERANCE OF THE
13 DEVELOPMENT OF THE CITY'S TOWN SQUARE PROJECT;
14 AND PROVIDING AN EFFECTIVE DATE.
15 Whereas; the City and 7KM Developers/Blackrock, a development team member of
16 the town square development team have negotiated the terms and conditions necessary to
17 facilitate the (1) the sale and purchase of real property owned by the city, and (2) a
18 development agreement for multi-family rental house with associated parking facilities, and
19 (3) a parking license to provide parking for city facilities; and (4) an option agreement for city
20 re-acquisition of real property, all in furtherance of the development of the City's Town
21 Square project.
22 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
23 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
24 Section 1. Each Whereas clause set forth above is true and correct and
25 incorporated herein by this reference.
26 Section 2. The City Commission of the City of Boynton Beach, Florida does
27 hereby approve and authorize the Mayor to sign the following documents and such other
28 collateral documents necessary thereto with 7KM Developer/Blackrock or its successors and
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29 assigns at such time as they are finalized to the satisfaction of the City Manager and City
30 Attorney:
31 (1) The sale and purchase of real property owned by the city, a copy of which is attached as
32 Exhibit"A", and
33 (2) A development agreement for multi-family rental house with associated parking facilities,
34 a copy of which is attached as Exhibit"B", and
35 (3) A parking license, a copy of which is attached as Exhibit"C", to provide parking for City
36 facilities; and
37 (4) an option agreement, a copy of which is attached as Exhibit"D" for City re-acquisition of
38 real property;
39 all in furtherance of the development of the City's Town Square project
40 Section 3. That this Resolution shall become effective immediately upon passage.
41 PASSED AND ADOPTED this day of , 2018.
42 CITY OF BOYNTON BEACH, FLORIDA
43
44 YES NO
45
46 Mayor— Steven B. Grant
47
48 Vice Mayor—Justin Katz
49
50 Commissioner—Mack McCray
51
52 Commissioner—Christina L. Romelus
53
54 Commissioner—Joe Casello
55
56 VOTE
57 ATTEST:
58
59
60
61 Judith A. Pyle, CMC
62 City Clerk
63
64
65 (City Seal)
100220646.1306-90018211
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