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R18-044 RESOLUTION NO.R18-044 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 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 1 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 1 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: There is a public need for and benefit derived from the CFP Improvements; The estimated cost of the CFP Improvements is reasonable in relation to other similar facilities; and . 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 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: . 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; . 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; . 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; '. 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 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 3 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, 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. 4 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 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 5 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 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 6 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. 7 Section 9. This instrument shall take effect immediately upon its adoption. 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: I Judi/ . Pyle, CMC, ' y Clerk (CORPORATE SEAL) 8 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 2"a 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 Pt Street, in the 9 City, and is bounded by NE 1st Avenue. The portion of the improvements to be constructed within the North-East Pt 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. 10 EXHIBIT B FORM OF THE MASTER DEVELOPMENT AGREEMENT 11 MASTER DEVELOPMENT AGREEMENT THIS MASTER DEVELOPMENT AGREEMENT, made effective as of the 7$day of f')Are,k 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 1 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 2 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. [R18-044] 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 3 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 4 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 2" 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. 5 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 6 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 7 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 Pt 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 Pt 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, 8 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. 9 (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. 10 (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 party 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. 11 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. 12 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 13 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. 14 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 BO T NB H BY: STEVEN$. GRANT,MAYOR DATE: ATTEST: BY: C ty Clerk APPROVED AS TO FORM AND anLEGAL SUFFICIEN 01P 4 80YNl0 J.les A. Cher.r City Attorney 15 CFP BOYNTON BEACH TOWN SQUARE, LLC, a Florida limited liability company BY: e, By: Steve Collins pre,ssd&s-)k DATE: 3 2 17 APPENDIX A FORM OF DEVELOPMENT AGREEMENT 17 APPENDIX B-1 DESIGN-BUILDERS 18 APPENDIX B-2 FORM OF DESIGN-BUILD CONTRACT 19 APPENDIX C FORM OF THE SITE LEASE 20 APPENDIX D FORM OF THE FACILITIES LEASE 21 Working Draft: March 2, 2018 EXHIBIT E MEMORANDUM OF FACILITIES LEASE Working Draft: March 2, 2018 EXHIBIT F DISPUTE RESOLUTION PROCEDURE Working Draft: March 2, 2018 EXHIBIT G FORM OF ELECTION: OPTION TO PURCHASE Working Draft: March 2, 2018 EXHIBIT H FORM OF NOTICE ELECTION: PARTIALLY PREPAY PERIODIC RENT Working Draft: March 2, 2018 EXHIBIT I MINIMUM INSURANCE REQUIREMENTS: DEVELOPER Working Draft: March 2, 2018 EXHIBIT J MINIMUM INSURANCE REQUIREMENTS: DESIGN-BUILDER Working Draft: March 2, 2018 EXHIBIT K MINIMUM INSURANCE REQUIREMENTS: LANDLORD t � Working Draft: March 2, 2018 EXHIBIT N FINANCED FF&E