R09-018 1
2 RESOLUTION NO. R09- C%6g
3
4 A RESOLUTION OF THE CITY COMMISSION OF
5 THE CITY OF BOYNTON BEACH, FLORI 1 • ,
6 AUTHORIZING EXECUTION BY THE MAYOR • ND
7 CITY CLERK OF A MASTER DEVELO' ENT
8 AGREEMENT BETWEEN THE CITY OF 0 YNTON
9 BEACH, THE BOYNTON BEACH C MUNITY
10 REDEVELOPMENT AGENCY AN AUBURN
11 DEVELOPMENT, LLC., FOR REDEV LOPMENT OF
12 THE MLK CORRIDOR; AND ' ROVIDING AN
13 EFFECTIVE DATE.
14
15 WHEREAS, the Boynton Beach Co • munity Redevelopment Agency selected
16 Auburn Development to undertake a major edevelopment project along the MLK corridor;
17 and
18 WHEREAS, to facilitate •-development on both an administrative and fiscal basis
19 the Agreement between the • ' • and Auburn includes the City of Boynton Beach as an
20 additional party; and
21 WHEREAS, ity staff recommends that that City Commission approve the Master
22 Development A: eement and authorize the Mayor and City Clerk to execute the document.
23 NO THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
24 THE CI,iY OF BOYNTON BEACH, FLORIDA, THAT:
25 ; Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
26 l ing true and correct and are hereby made a specific part of this Resolution upon adoption
27 / hereof
Section 2. The City Commission of the City of Boynton Beach, Florida does
f 29 hereby authorize and direct the Mayor and City Clerk to execute the Master Development
30 Agreement between the City of Boynton Beach, the Boynton Beach Community
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1 Redevelopment Agency and Auburn Development, LLC., a copy of which is attached h�.reto
2 as Exhibit "A ", and incorporated herein by reference. f
3 Section 3. That this Resolution shall take effect immediately upo • passage.
4 PASSED AND ADOPTED this A u day of January, 2009.
5
6 CITY OF BOYNT i BEACH, FLORIDA
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8
9 Mayor — Je. Taylor
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12 Vic- ayor— Jose Rodriguez
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15 Commissioner — Ronald Weiland
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18 Commissioner — Woodrow L. Hay
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21 Commissioner — Marlene Ross
22 ATTEST:
23
24
25 Janet M. Prainito, C C
26 City Clerk
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28
29
30 (Corporat /Seal)
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32
• I
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MASTER
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this_
day of , 2008, by and between AUBURN DEVELOPMENT, LLC with an address at 777
E. Atlantic Avenue, Suite 200, Delray Beach, FL 33483 ("Auburn"), and the CITY OF BOYNTON
BEACH ("City"), a municipal corporation ofthe State of Florida, with an address at 100 E. Boynton
Beach Boulevard, Boynton Beach, FL 33435 and the BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY ("CRA") with an address at 915 S. Federal Highway, Boynton
Beach, FL 33435.
WITNESSETH:
WHEREAS, in December, 2001, after several meetings with community residents, the City
and the CRA adopted a redevelopment plan entitled the "Heart of Boynton Community
Redevelopment Plan" (" HOB PLAN ") for redevelopment of approximately 480 acres of the CRA
District; and
WHEREAS, through a Request for Proposals ("RFP"), the CRA conducted a competitive
process to select a master developer for redevelopment of a portion of the HOB PLAN. In its
response to the RFP, Auburn, through its written proposal dated August 7, 2006, set forth its
qualifications to act as master developer; and
WHEREAS, the CRA has selected Auburn serve as the master developer of approximately
26.3 acres to be redeveloped (herein as the "PROJECT"). The PROJECT will be located generally he
Martin Luther King Jr. Blvd Corridor between Seacrest Boulevard and Federal Highway; and
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WHEREAS, the properties Auburn agrees to redevelop are currently owned by several
different property owners, including the City and the CRA. The CRA owned properties are listed on
Exhibit "A". The City owned properties are listed on Exhibit "B". The properties to be acquired by
Auburn from third parties are listed on Exhibit "C". Auburn owns or has legally enforceable
contracts to acquire the properties listed on Exhibit "D"; and
WHEREAS, to improve upon it and to reflect changes to market conditions, the City and the
CRA recognize the need to amend the HOB PLAN) to reflect the PROJECT contemplated by the
City, the CRA and Auburn and hereinafter describe in this Agreement. The HOB Plan amendment is
subject to a formal plan amendment process which will include neighborhood meetings, public
workshop(s) and public hearing(s); and
WHEREAS, the parties believe that it is in the best interest of each party to initiate the
process to redevelop the properties in accordance with the requirements described herein.
NOW, THEREFORE, for and in consideration of mutual benefits and the public interest and
other good and valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Recitals. The foregoing recitations are true and correct and are hereby incorporated
herein by reference. All exhibits to this Agreement are hereby deemed a part hereof. All references
to "parties", means the City, the CRA and Auburn collectively.
2. Authority. Each party to this Agreement represents to the other that it has legal
authority to enter into this Agreement.
3. Effective Date. This Agreement shall become effective upon the date the last party
executes the Agreement.
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4. Review. The City and the CRA will process, in the manner required by law, all
applications by Auburn for amendments to the City's Land Use Plan and zoning designations of the
PROJECT in order to develop the PROJECT in the manner described herein.
5. Property Ownership. The parties acknowledge that because the properties listed on
Exhibit "C" are owned by third parties, the development of such properties by Auburn is contingent
upon acquisition of these properties. In the event Auburn is unable to acquire some of these
properties, the parties agree that the PROJECT shall be modified to exclude the unobtainable
properties. The modification may require a change in the boundaries of the four proposed
development phases from the boundaries contemplated by the parties at the time this Agreement is
signed. The parties agree that both the first phase, planned for a gated senior rental community, and
the fourth phase, planned for condominium building( s), must be built on contiguous parcels, whereas
the second phase, planned for single family and townhouse buildings can be built on non-contiguous
parcels.
6. Duration of Al!reement. The duration of this Agreement shall be for a twelve (12)
year period from the date this Agreement is fully executed by the parties hereto ("Effective Date"),
provided the parties may extend the term by mutual written consent.
7. Phased Development. The PROJECT will be developed in four (4) phases, which
will include a total of seven hundred (700) total dwelling units. The phases are generally described
as:
Phase 1 A neighborhood retail complex consisting of approximately 2.5 acres, located on the
Seacrest frontage north of Martin Luther King Boulevard.
Phase 2 Up to 160 senior low income rental apartment units (on up to 4 acres of land,
designated for 30 units per acre) and a senior center.
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Phase 3 Up to 237 townhouses, condominiums or single family homes, or as modified by
mutual consent of the parties, on approximately twelve (12) acres, developed under
the City's Workforce Housing Ordinance.
Phase 4 Two (2) four-story buildings and two (2) mid-rise eight-story buildings on
approximately eight (8) acres, two (2) buildings on Federal Highway and two (2)
buildings on the west side of the FEC railroad tracks. The buildings shall contain
approximately 304 residential units with some retail and office space in the Federal
Highway buildings. Twenty percent (20%) of the units as work force units which
shall meet the requirements of the City's Workforce Housing Ordinance.
A more particular description of the PROJECT and the properties proposed for each phase of
development is set forth in Exhibit "E". The exact schedule for development and what type of
development will occur in each phase are subject to change based upon the mutual written agreement
of the parties. Except as specifically set forth herein, each phase shall constitute a separate
development and neither the CRA nor the City shall have any obligation to advance funds or convey
land for a phase until the previous phase is substantially complete. Auburn acknowledges and agrees
that all CRA funding and CRA obligations set forth in this Agreement shall be conditioned upon the
CRA's revenue and availability of adequate funding. Auburn further acknowledges that
appropriation of funds by the City and CRA is a legislative function.
8. City and CRA Land. Within thirty (30) days after the City and the CRA receives
written notice from Auburn that it intends to close, within the next thirty (30) days, on its
construction financing on the last of any parcels it intends to acquire (in Auburn's sole discretion) for
a particular phase, the City or the CRA, as applicable, shall convey title to Auburn, any portion of
land they own located within that particular phase, for the nominal price of$1 0.00. The conveyance
shall be of marketable title, free and clear of all encumbrances but shall contain a reversionary
interest in favor to the City or CRA which will require that the property be used for the PROJECT
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contemplated by this Agreement. The conveyance(s) shall take place at the same time as Auburn's
closing on its construction financing for that particular phase.
9. Development Support. The CRA and the City shall issue, at the request of Auburn,
adopt or issue Resolutions or letters of support to assist Auburn in obtaining licenses, approvals,
clearances or other cooperation from local, County, State, or Federal agencies or regulatory entities.
The CRA and the City shall adopt or issue, at the request of Auburn, Resolutions or letters of support
to assist Auburn in obtaining applications for allocations of Low Income Housing Tax Credits, tax-
exempt bond volume cap, Community Workforce Housing Incentive Pilot Program (CWHIP) funds,
and other State or local funding needed for the PROJECT.
10. Overall Commitment. The CRA, the City and Auburn shall coordinate outreach to
the neighborhood to provide information to the community about the PROJECT.
11. Land Use. Auburn shall submit applications for land use and zoning designations for
the PROJECT, within thirty (30) days ofthe date of this Agreement. The City will process the land
use plan amendments and rezonings needed for each phase of the PROJECT once a complete
application is submitted to the City. The City shall use its best efforts to complete consideration of
the land use and zoning applications for Phase 1 and Phase 2 as described herein by June 1,2009.
12. Fundinl! Conditions. The CRA advancements to Auburn described herein shall be
conditioned upon the appropriation of funds in the CRA' s budget for the fiscal year in which Auburn
requests the advancement for a particular phase. In the event that the CRA budget for appropriations
is reduced from the planned amount in the year an advancement of funds is requested, the
advancement shall be reduced in the same percentage as the percentage reduction in the CRA
appropriations budget. All funds advanced by the CRA to Auburn for a particular phase shall be
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advanced simultaneously with Auburn's actual closing on the construction financing for that
particular phase. Auburn shall provide an opinion letter prepared by a certified public accountant on
the one, two and three year anniversary of the advancement payment evidencing how Auburn utilized
the advancement funds.
13. Future CRA Land Acquisitions. Prior to Auburn's notice to the City and the CRA
that it intends to close within the next thirty (30) days, on its construction financing for a phase, the
CRA may use the advancement funds designated for a particular phase to purchase land, subject to
Auburn's written consent, required for that particular phase. Any land acquired by the CRA in such
a manner, shall be conveyed to Auburn manner described in section 8 above. Any CRA advancement
shall be reduced by the dollar amount the CRA paid to acquire any land approved by Auburn
between the Effective Date of this Agreement and Auburn's notice it intends to close on its
construction financing.
14. Grants and Loans. Auburn shall and CRA may, in an effort to accelerate the rate of
land acquisition and construction of the PROJECT, pursue grants, loans and other funding so as to
reduce the amount the CRA is obligated to advance to Auburn for each phase. See Exhibit "F",
attached hereto and made a part hereof for a more detailed example of how this intended work.
In the event that the CRA does not have to pay the maximum advancement amount for a
given phase due to any grants, loans or other funding obtained by Auburn or the CRA for that phase,
the amount of such advancement not paid to Auburn shall roll over for use in the next phase
("Rollover Amount"). In the event Rollover Funds exist for a subsequent phase, Auburn may choose
to begin a subsequent phase while still constructing the prior phase. Upon Auburn's request in
writing, the CRA shall release the Rollover Funds simultaneously with Auburn's closing on its
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construction financing for the subsequent phase. Auburn and the CRA agree that in order to acquire
tax-credit financing, Auburn needs to develop Phase 1 first to meet the tax credit grocery store
proximity requirement. The parties acknowledge that Phase 3 funding and construction will, in all
likelihood, take place before Phase 2 due to opportune acquisitions, a shorter approval period for
single family development and available funding.
15. Option to Proceed. Auburn shall have the option, in its sole discretion, to proceed
with the development of a subsequent phase of the Plan without completion of a prior phase. In such
event, however, Auburn shall have no right to any designated advancement from the CRA for the
new phase, until seventy-five percent (75%) of the units planned for the prior phase have received
certificates of occupancy or the grocery store has received its certificate of occupancy. Prior to
reaching seventy-five percent (75%) completion of the prior phase, Auburn, however, may utilize
any other funds received from other governmental agencies, grants or loans and Rollover Funds, if
any exist. The CRA shall pay any Rollover Funds at the time of Auburn's closing on its construction
financing for the subsequent phase.
16. Eminent Domain. In the event Auburn determines, in its sole discretion, that it has
exhausted all efforts to purchase a parcel needed for an assemblage for a particular phase, the City
agrees, upon a request in writing from Auburn or the CRA, to consider, but shall not be obligated to,
the use of its eminent domain powers to acquire such property for a public purpose. The parties shall
share equally in any attorneys' fees (including paralegal fees) and costs arising out of such litigation
and shall pay for such property, if acquired, by utilizing CRA funds for the PROJECT. The City
shall have the right to select counsel for such litigation and to settle or terminate such litigation at
any time in its sole discretion.
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17. Chapter 163 Development Al!reement. The parties acknowledge that when the land
use designation for a particular phase of the PROJECT is adopted by the City, and all applicable
appeal periods have expired, the parties intend to enter into a Florida Statutes, Chapter 163
Development Agreement for each such phase, provided that a Chapter 163 Agreement is otherwise
legally permissible.
PHASE 1
18. Phase 1 shall consist of the development and management of a neighborhood retail
complex consisting of approximately 2.5 acres, located on the Seacrest frontage north of Martin
Luther King Boulevard by Auburn, or by a partnership between Auburn and a third party or by a
third party subject to the agreement of the parties. Auburn may request the CRA advance up to
$1,500,000 from the advancement funds designated for Phase 2 which shall then reduce the funds
available to Auburn for Phase 2 by the same amount. If such funds are requested for Phase 1, the
funds shall be paid at the time the developer closes on its Phase 1 construction financing. The CRA
shall cooperate and assist in obtaining tenants or buyers for the retail complex.
PHASE 2
19. Phase 2 shall consist of up to 160 senior low income rental apartment units (on up to
4 acres of land, designated for 30 units per acre) and a senior center. Auburn shall determine, in its
sole discretion, the exact number of units to be developed and the exact location of the land to be
used for Phase 2. The CRA's contribution to Phase 2 shall be the land it owns in Phase 2 as of the
Effective Date of this Agreement, and a payment of up to, but not to exceed, a $1,920,000
advancement, which amount may be reduced pursuant to the terms and conditions contained herein.
The payment by the CRA is based upon the maximum number of units funded by Tax Credits, and in
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the event less than 160 units are developed, the advancement shall be reduced proportionately on a
unit by unit basis. For example, if the development is downsized to 140 units, the cash advance shall
be 1401160th of$I,920,000, or $1,680,000. The CRA and the City, as the case maybe, agree to enter
into a purchase and sale agreement with Auburn for the CRA owned land in Phase 2 for the purpose
of demonstrating site control to the Florida Housing Finance Corporation. The draft purchase and
sale agreement is attached hereto as Exhibit "G".
19.1 Auburn shall acquire, or place under contract, on or before December 31,
2012, all the Phase 2 properties it intends to acquire, in its sole discretion, for Phase 1. Within
thirty (30) days after the City and the CRA receive written notice from Auburn that it intends to close
within the next thirty (30) days on its Phase 2 construction financing and has fee simple title or is
under contract for the balance of the properties it intends to acquire, in its sole discretion, for Phase
2, the City and the CRA, as applicable, shall convey to Auburn, simultaneously with Auburn closing
on its construction financing, the Phase 2 land acquired by the City or the CRA, either before or after
the Effective Date of this Agreement, for the nominal price of $10, with marketable title in
accordance with Florida Statutes and free and clear of all encumbrances. At the same time, the CRA
shall pay Auburn up to a maximum advancement of $1 ,920,000 less any monies expended by the
CRA for acquisition of land within Phase 2 since the Effective Date of this Agreement, but not
before, and less any grants, loans or other funding obtained by Auburn or the CRA for Phase 2.
Auburn shall provide all other funds for the acquisition and development of Phase 2, through private
sources, loans, grants from other governmental agencies or mortgage lenders it selects, in its sole
discretion.
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19.2 At the same time as Auburn closes on its construction financing for Phase 2,
the CRA shall also provide a demolition grant in the amount of$300,000 for the cost of demolishing,
clearing, grubbing, and removing of all underground utilities and subsurface structures and bringing
the site to level grade. In the event that the actual demolition cost is less than $300,000, then the
balance of these funds shall be used by Auburn for Phase 2 construction costs.
19.3 The senior center shall be a minimum of3,500 square feet and shall be open to
the public but also serve as a clubhouse and leasing office for the Senior Apartments. There shall be
access from the gated senior apartments to the senior center through a pedestrian access gate.
Auburn shall manage and operate the senior center and shall have the right, in its sole discretion, to
contract with a third party for the center's management and operation for a period of fifty (50) years
after which the ownership of the senior center property shall be transferred to the City.
JAC NOTE: Added conveyance of center to city at end of auburn's 50 year operation and
maintenance period.
PHASE 3
20. Phase 3 shall consist of up to 237 townhouses, condominiums or single family
homes, or as modified by mutual consent of the parties, on approximately twelve (12) acres. Auburn
shall develop these units under the City's Workforce Housing Ordinance. Auburn shall commence
acquisition of the properties for the Phase 3 assemblage ("Phase 3 Assemblage") as soon as it
desires to do so but no later than the date upon which seventy-five percent (75%) ofthe units planned
for Phase 2 construction have received their certificate of occupancy. It is agreed that the Phase 3
land acquisition and development may occur in two (2) or more subphases, as funding sources and
market conditions allow.
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20.1 Within 30 days after the City and the CRA receive written notice from Auburn
that it intends to close, within the next thirty (30) days, on its Phase 3 construction financing and has
fee simple title, or is under contract for the balance ofthe properties it intends to acquire, in its sole
discretion, for Phase 3, the City and the CRA, as applicable, shall convey to Auburn, for the nominal
price of $10, simultaneously with Auburn's closing on its Phase 3 construction financing, the
Phase 3 land acquired by the City or the CRA, with marketable title in accordance with Florida
Statutes and free and clear of all encumbrances. At the same time, the CRA shall pay Auburn, up to
a maximum advancement of $2,844,000, less any monies expended by the CRA for acquisition of
land within Phase 3 since the Effective Date of this Agreement, but not before, and less any grants,
loans or other funding obtained by Auburn or the CRA for Phase 3. Auburn shall provide all other
funds for the acquisition and development of Phase 3 through private sources, loans, grants from
other governmental agencies or mortgage lenders it selects, in its sole discretion.
20.2 At the same time Auburn closes on its Phase 3 construction financing, the
CRA shall provide a demolition grant in the amount of$275,000 to Auburn to cover the estimated
cost of demolishing, clearing, grubbing, removing of all underground utilities, subsurface structures
and bringing the Phase 3 site to level grade. Ifthe actual demolition cost is less than $275,000, then
Auburn shall use the balance of these funds for Phase 3 construction costs. Within three (3) months
after Auburn commences construction ofthe Phase 3 units, the CRA shall complete the acquisition
of the land necessary for the Phase 3 streetscape improvements illustrated in Exhibit "G". Upon
completion of such acquisition, the City shall design and construct the proposed Phase 3 streetscape
improvements which may include, but are not limited to, the construction of the town circle, pavers,
benches, fountains, landscaping as well as curbs, gutters, parallel parking spaces, sidewalks, lighting
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and signage. The CRA shall pay to the City the actual costs of such improvements. The CRA shall
discuss with the owners of the church adjacent to the town circle, allowing the CRA to renovate the
exterior of the church. The City shall substantially complete the streetscape improvements within
one (1) year after Auburn has commenced Phase 3 construction. The term "substantially completed"
when used in this Agreement shall mean that the improvement can be used for the purpose for which
it was constructed.
JAC NOTE: Changed CRA's obligation from $1,000,000 to actual cost.
20.3 Auburn shall designate a number of the Phase 3 units as workforce units
which shall meet the requirements of the City's Workforce Housing Ordinance. The CRA shall
create a dedicated $2,500,000 fund earmarked exclusively for assistance to the purchasers of the
Phase 3 units to assist them in qualifying for mortgage financing according to their needs and
abilities, until the dedicated $2,500,000 fund is exhausted.
PHASE 4
21. Phase 4 shall consist oftwo (2) four-story buildings and two (2) mid-rise eight-story
buildings on approximately eight (8) acres. There will be two (2) buildings on Federal Highway and
two (2) buildings on the west side of the FEC railroad tracks. The buildings shall contain
approximately 304 residential units with some retail and office space in the Federal Highway
buildings. Auburn shall designate twenty percent (20%) of the units as work force units which shall
meet the requirements of the City's Workforce Housing Ordinance. Auburn's plan is to construct a
bridge connecting the two (2) buildings on Federal Highway with the two (2) buildings on the west
side ofthe FEC railroad tracks. The construction of the bridge shall require approvals from the FEC.
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The City and the CRA agree to cooperate and assist in obtaining these approvals in the manner
described in paragraph 9 above.
21.1 The CRA shall provide a demolition grant in the amount of$150,000 to cover
the cost of demolishing, clearing, grubbing, removing all underground utilities, subsurface structures,
and bringing the site to level grade. The CRA shall pay this grant at the same time it pays Auburn
the Phase 4 advancement described in Subparagraph 21.3. If the actual demolition cost is less than
$150,000, then Auburn shall use the balance of these funds for Phase 4 construction costs. Ifthe
actual cost exceeds $150,000, Auburn shall pay all costs which exceed $150,000.
21.2 The two (2) buildings on the west side of the Phase 4 development shall
consist of two (2) or three (3) floors of structured public parking and five (5) or six (6) stories of
residential units above the parking with no more than a total of eight (8) stories in such structures.
Auburn may commence construction of the parking structures only after Auburn has completed
Phases 1 and 2 and the acquisition of all the Phase 4 parcels it intends to acquire, in its sole
discretion, and has sold 75% ofthe Phase 3 units to third-party buyers. Auburn shall construct, at its
own expense, all the residential units above these parking structures.
21.3 Within thirty (30) days after the City and the CRA receive written notice from
Auburn that it intends to close, within the next thirty (30) days, on its Phase 4 construction financing
and has fee simple title, or is under contract for, the balance of the properties it intends to acquire, in
its sole discretion for Phase 4, the CRA, simultaneously with Auburn's closing on its Phase 4
construction financing, shall loan to Auburn up to $1,216,000 for the Phase 4 development costs and
loan the lump sum of $11,704,000 for the construction ofthe two (2) parking garages, all subject to
the condition that 75% of the Phase 3 units have been sold to third-party buyers. The CRA funding
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for the planned Phase 4 development is contingent upon approval for bond financing in a bond
validation proceeding. In the event that the bond validation proceeding does not permit bond
financing for the parking garages, then the loan contemplated for the parking garages shall be
designated for the construction of the work force housing units. The exact amount of the
advancement or the loan may be less than the amount set forth herein if Auburn and the CRA are
able to obtain grants, loans or funding from other sources or from remaining Rollover Funds.
Auburn shall provide all other funds for the acquisition and development of Phase 4 through private
sources, grants from other governmental agencies or mortgage lenders it selects, in its sole discretion.
The CRA's Phase 4 loans shall initially be subordinate, interest free loans against the Phase 4
property, but shall be forgiven by the CRA at the time of the completion of construction and the
issuance ofthe final certificates of occupancy for the Phase 4 buildings. If Auburn determines that
it is economically infeasible or impossible to acquire the property located on the northeast corner of
the PROJECT which is currently utilized for adult entertainment, then Phase 4 may be moved to the
south, but in no event shall the total PROJECT area exceed 26.3 acres. In the event that this change
is made, Auburn shall construct an attractive, architecturally compatible three or four story
commercial building on the northwest corner of US 1 and Martin Luther King, Jr. Boulevard
("MLK"), and the buildings envisioned for the Phase 4 area north of MLK shall be built along
Federal Highway and Railroad Avenue to the immediate south of the currently designated Phase 4
area. The total Phase 4 area may be larger, but not smaller, than is currently envisioned, but the total
PROJECT may not exceed approximately 26.3 acres.
CITY STAFF COMMENT: Phase IV should not be accepted at the proposed density and
intensity until after formal amendment of both redevelopment plans through proper public
involvement. Preliminarily, staff should not support, at minimum, the proposed height of 8
stories. With respect to building heights, at approximately 80 to 90 feet, this design is
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inconsistent with the scale of surrounding properties, does not further the visions represented
by the two redevelopment plans, and cannot be accommodated by the current mixed-use
zoning regulations and system. Staff recommends that the agreement be worded to emphasize
the prerequisite of amending the affected redevelopment plans, to reflect staffs general
opposition to the proposed scale of Phase IV, and that staff support of the proposed
scale/densitylheight is contingent upon pr~per amendment ofthe subject redevelopment plans.
22. General Contractor. Auburn shall have the right to serve as the general contractor
for all phases of development and, in the alternative, shall have the right to select, in its sole
discretion, general contractors for each phase of development.
23. Permits. The City shall designate a specific Building Department representative to
assist in the processing of building permits for the PROJECT.
24. Termination bv CRA. The CRA's obligations to provide any funds to Auburn is
contingent upon Auburn providing to the CRA, at least forty-five (45) days prior to the payment of
any CRA funds, an income tax basis financial statement representing the financial condition of
Auburn Development, LLC prepared by a certified public accountant. The CRA, in its sole and
absolute discretion, shall determine if Auburn has the financial ability to commence and complete
the particular phase for which funding is requested. In the event, in the sole and absolute discretion
of the CRA, Auburn lacks the financial ability to commence and complete that phase, then the CRA
may terminate this Agreement by providing a written notice of termination to Auburn, within 15 days
after receipt ofthe financial statement. Within forty-five (45) days of receipt ofthe written notice of
termination from the CRA, Auburn shall convey to the CRA and to the City all of the land in the
PROJECT it previously acquired from each ( the CRA and the City shall each receive back that
property the respective party conveyed to Auburn), with marketable title in accordance with Florida
Statutes and free and clear of any encumbrances. In the event, however, that Auburn has secured a
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construction loan commitment from a commercial lending institution for the construction of such
phase, then the right of termination contained herein shall be null and void.
JAC NOTE:.The last sentence negates the CRA's power to exit the agreement. At a minimum,
the term "commercial lending institution" should be defined and the amount of the
commitment (stated as a percentage of construction loan to project cost) should be stated.
Notwithstanding the level of respect the Developer expressed at the CRA meeting for current
lending practices, the judgment of a loan officer at a commercial lending institution should not
have greater weight than the judgment of the CRA and its professional consultants.
24.1 Phase 2 is intended to be a Housing Credit senior community of up to 160
apartment units and a senior center. If Auburn is unable to obtain an award of Housing Credits for
the Phase 2 Senior Apartments from the Florida Housing Finance Corporation, or a successor
agency, by January 15, 2012, then the CRA shall have the option to terminate this Agreement by
providing written notice of same to Auburn. In such event, within forty-five (45) days after receipt
of the written notice oftermination from the CRA, Auburn shall convey to the CRA or to the City (
the CRA and the City shall each receive back that property the respective party conveyed to Auburn)
all the land in the PROJECT acquired by Auburn with marketable title in accordance with Florida
Statutes, and free and clear of any encumbrances. At the time of the conveyance, the CRA shall pay
Auburn the amount Auburn paid for the land less any CRA contributions for the land and each party
shall no longer have any ongoing obligations to the others.
24.2 In the event the CRA terminates this Agreement without cause, the CRA shall
pay Auburn, at the time of conveyance of the land, the amount Auburn paid for the land plus
Auburn's verifiable development expenses and costs less any CRA contributions, with interest on the
net amount at the rate of 7.5% per annum from the Effective Date of this Agreement. All of
Auburn's development rights for the balance of the PROJECT shall be forfeited and the Agreement
shall terminate with each party having no ongoing obligations to the others. Auburn's verifiable
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development expenses shall not include the salaries of Auburn's five (5) highest paid executives.
Documentation for verifiable expenses shall include quarterly expense reports and copies of executed
contracts with any third party contractors and consultants. Any cost incurred in developing the
Request for Proposals for the PROJECT shall not be included.
25. Termination bv Auburn. If Auburn is unable to obtain Housing Credits for the
Phase 2 Senior Apartments which are acceptable to Auburn, in its sole discretion, by January 15,
2012, Auburn shall have the right to terminate this Agreement by providing written notice to the
CRA. In such event, Auburn shall convey to the CRA all the land in the PROJECT acquired by
Auburn within forty-five (45) days of the CRA's receipt of Auburn's written notification of
termination. At the time of the conveyance, the CRA shall pay Auburn the amount Auburn paid for
the land less any CRA contributions for the land and each party shall no longer have any ongoing
obligations to the others.
26. Independent Third Party Financial Analvsis. The CRA Board has directed the
CRA Executive Director to obtain an independent third party financial review to determine if Auburn
has the financial ability to undertake and complete the PROJECT as contemplated by the parties.
The independent third party financial review will also evaluate the CRA' s financial ability to fund
the project. In the event the CRA Board determines, based upon the report, that the PROJECT is not
feasible based upon Auburn's financial ability or the CRA's funding ability, the CRA may terminate
this Agreement and the Agreement will thereafter be deemed null and void. In the event of
termination under this provision of the Agreement all parties will be released of their respective
obligations as described herein and no party shall have recourse against another for any expenses
incurred in reliance upon this Agreement or damages of any kind. Auburn, by signing this
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Agreement, specifically acknowledges that it may not detrimentally on this Agreement until such
time as the independent third party financial analysis is delivered to the CRA and the CRA has had
thirty (30) days to evaluate and act on the financial analysis.
27. Notice. All notices pursuant to this Agreement shall be sent by hand delivery,
U.S. Postal Service, return receipt requested, or by a nationally recognized delivery service such as
Federal Express or United Parcel Service to the following addresses:
CITY:
with a copy to:
CRA:
with a copy to:
Auburn: Thomas Hinners
Auburn Group
777 E. Atlantic Ave., Suite 200
Delray Beach, FL 33483
with a copy to: Susan P. Motley, Esq.
Ruden McClosky
200 E. Broward Blvd., 15th Floor
Ft. Lauderdale, FL 33301
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AUBURN:
AUBURN DEVELOPMENT, LLC
WITNESSES:
By:
Print name: Print Name:
Title:
Print name:
day of ,2008
STATE OF )
) SS:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by , the of AUBURN
DEVELOPMENT, LLC, freely and voluntarily under authority duly vested in him/her by said
company. He/She is personally known to me or who has produced as identification.
WITNESS my hand and official seal in the County and State last aforesaid this _ day of
,2008.
Notary Public
Typed, printed or stamped name of Notary Public
My Commission Expires:
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CITY:
WITNESSES: CITY OF BOYNTON BEACH, a Florida
municipal corporation
By:
Print Name: , Mayor
day of ,2008
Print Name:
ATTEST: APPROVED AS TO FORM:
By:
, City Clerk , City Attorney
STATE OF FLORIDA )
) ss:
COUNTY OF BROW ARD )
I HEREBY CERTIFY that on this day before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by , as City Manager of the City of Boynton Beach, a
Florida municipal corporation, on behalf of the City, freely and voluntarily under authority duly
vested in him by said municipal corporation and that the seal affixed thereto is the true corporate seal
of said municipal corporation. He is personally known to me or has produced as
identification.
WITNESS my hand and official seal in the County and State last aforesaid this _ day of
,2008.
Notary Public, State of Florida
My Commission Expires: Typed, printed or stamped name of Notary
Public
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CRA:
WITNESSES: CITY OF BOYNTON BEACH
COMMUNITY REDEVELOPMENT
AGENCY
By:
Print Name: Chairman
day of ,2008
Print Name:
ATTEST: APPROVED AS TO FORM:
By:
, City Clerk , CRA Attorney
STATE OF FLORIDA )
) ss:
COUNTY OF BROW ARD )
I HEREBY CERTIFY that on this day before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by , as Administrator of the City of Boynton Beach
Community Redevelopment Agency, on behalf of the CRA, freely and voluntarily under authority
duly vested in him by said corporation and that the seal affixed thereto is the true corporate seal of
said CRA. He is personally known to me or has produced as identification.
WITNESS my hand and official seal in the County and State last aforesaid this _ day of
,2008.
Notary Public, State of Florida
My Commission Expires: Typed, printed or stamped name of Notary
Public
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LIST OF EXHIBITS
Exhibit "A" Properties owned by the CRA
Exhibit "B" Properties owned by the City
Exhibit "C" Properties to be acquired by Auburn from third parties
Exhibit "D" Properties owned by Auburn or to which it has legally enforceable
contracts
Exhibit "E" A description of the Project and the properties proposed for each phase of
development
Exhibit "F" Example of how grants, loans and other funding will work
Exhibit "G" Phase 3 streetscape improvements
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EXHIBIT" A"
NOTE: Add clause regarding financial study.
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