Loading...
08-30-99 Special/Workshop CITY COMMISSION CITY OF DELRAY BEACH~ FLORIDA Ail-America City The City will furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program or activity conducted by the City. Contact Doug Randolph at 243-7127 (voice) or 243-7199 (TDD) , 24 hours prior to the program or activity in order for the City to reasonably accommodate your request. Adaptive listening devices are available for meetings in the Commission Chambers. NOTE: The Community Redevelopment Agency Board has one item of business they need to deal with prior to convening the joint session with the City Commission. It will be very quick. SPECIAL WORKSHOP AGENDA (1) Joint work session with the Community Redevelopment Agency on the proposed Block 77 redevelopment project. (2) Commission comments. Please be advised that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is based. The City neither provides nor prepares such record. CITY OF DELRAY BEACH, FLORIDA - CITY COMMISSION SPECIAL MEETING - AUGUST.30, 1999 (TO FOLLOW SPECIAL WORKSHOP MEETING AT 6:00 P.M.) FIRST FLOOR CONFERENCE ROOM 1. CLOSED ATTORNEY/CLIENT SESSION pursuant to F.S. 286.011(8) re: Tate v. City of Delray Beach and Lake Worth Drainage District. Attendees: Mayor Jay Alperin Commissioner David Schmidt Commissioner Patricia Archer Commissioner Michael Wright Commissioner David Randolph City Manager David T. Harden City Attorney Susan A. Ruby Assistant City Attorney Jay Jambeck Bill Doney, Esquire A certified court reporter Purpose: Discuss settlement negotiations and strategy related to litigation expenditures in the referenced case. 2. Consideration of ~otential settlement/Tate v. City of Delra~ Beach and Lake Worth Drainage District. Please be advised that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is based. The City neither provides nor prepares such record. Ref: Addendum. 8/30/99 [ITY OF DELRI:IY BEfiEH CITY ATTORNEY'S OFFICE TM TELEPHONE 561/243-7090- FACSIMILE 561/278-4755 DEL~AY BEACH ~MO~D~ III.America City DATE: Au~st 30, 1999 ~9~)3 FROM: Susan A. Ruby, City Attorney SUBJECT: Tatev. CiW of Delray Beach and L~e Wo~ DraYage District The pu~ose of this memorandum is to call for a closed attorney-client session pursuant m Florida Statutes ~286.011(8) for ~e Au~st 30, 1999 City Co~ission meeting m discuss settlement negotiatiom and strategy related m litigation expenditures in ~e above case. Law requires strict compliance with Florida Statutes §286.011(8). Therefore, prior to the commencement of the closed attorney-client session, the Mayor should read the following: "The City has scheduled a closed attorney-client session pursuant to Florida Statutes §286.011(8) in the case of Stanley Tare vs. the City of Delray Beach and Lake Worth Drainage District. The estimated length of the closed session shall be 15 minutes. The following persons will be attending: Mayor Jay Alperin, Commissioners David Randolph, David Schmidt, Michael Wright, and Pat Archer, City Manager David Harden, City Attorney Susan Ruby, Bill Doney, lawyer for the City, and a certified court reporter." After the closed session is over, the Mayor should announce that the regular meeting is reopened, and the closed session is terminated. By copy of this memorandum to David Harden, our office requests that the agenda be prepared giving reasonable public notice of the time and date of the closed attorney-client session for August 30, 1999 and that the agenda item include the name of the case, the names set forth above of those persons attending the session, and identify the item as a closed door session pursuant to Florida Statutes {}286.011. Our office will arrange for a court reporter to be present as required by statute. Attached is a copy of Fla. Stat. §286.011. cc: David Harden, City Manager Alison MacGregor Harty, City Clerk Bill Doney, Esq. FSA § 286.011, Public meetings and records; public inspection; criminal and civil penalties Page 1 *29301 West's F.S.A. § 286.011 degree, punishable as provided in s. 775.082 or s. 775.083. WEST'S FLORIDA STATUTES ANNOTATED (c). Conduct which occurs outside the state TITLE XlX. PUBLIC BUSINESS which would constitute a knowing violation of CHAPTER 286. PUBLIC this section is a misdemeanor of the second BUSINESS; MISCELLANEOUS degree, punishable as provided in s. 775.082 or s. 775.083. PROVISIONS (4) Whenever an action has been filed against Current through Enfll of 1996 2nd Reg. Sess. any board or commission of any state agency or authority or any agency or authority of any 286.011. Public meetings and records; county, municipal corporation, or political public inspection; criminal and civil subdivision to enforce the provisions of this penalties section or to invalidate the actions of any such board, commission, agency, or authority, which (1) All meetings of any board or commission action was taken in violation of this section, and of any state agency or authority or of any the court determines that the defendant or agency or authority of any county, municipal defendants to such action acted in violation of corporation, or political subdivision, except as this section, the court shall assess a reasonable otherwise provided in the Constitution, at which attorney's fee against such agency, and may official acts are to be taken are declared to be assess a reasonable attorney's fee against the public meetings open to the public at all times, individual filing such an action if the court finds and no resolution, rule, or formal action shall be it was filed in bad faith or was frivolous. Any considered binding except as taken or made at fees so assessed may be assessed against the such meeting. Tile board or commission must individual member or members of such board or provide reasonable notice of all such meetings, commission; provided, that in any case where the board or commission seeks the advice of its (2) The minutes of a meeting of any such attorney and such advice is followed, no such board or commission of any such state agency fees shall be assessed against the individual or authority shall be promptly recorded, and member or members of the board or such records shall be open to public inspection, commission. However, this subsection shall not The circuit courts of this state shall have apply to a state attorney or his or her duly jurisdiction to issue injunctions to enforce the authorized assistants or any officer charged with purposes of this section upon application by any enforcing the provisions of this section. citizen of this state. *29302 (5) Whenever any board or (3)(a) Any public officer who violates any commission of any state agency or authority or provision of this section is guilty of a any agency or authority of any county, noncriminal infraction, punishable by fine not municipal corporation, or political subdivision exceeding $500. appeals any court order which has found said board, commission, agency, or authority to have (b) Any person who is a member of a board or violated this section, and such order is affirmed, commission or of any state agency or authority the court shall assess a reasonable attorney's fee of any county, municipal corporation, or for the appeal against such board, commission, political subdivision who knowingly violates the agency, or authority. Any fees so assessed may provisions of this section by attending a meeting be assessed against the individual member or not held in accordance with the provisions members of such board or commission; hereof is guilty ora misdemeanor of the second provided, that in any case where the board or Copyright (c) West Group 1997 No claim to original U.S. Govt. works FSA § 286.011, Public meetings and records; public inspection; criminal and civil penalties Page 2 commission seeks the advice of its attorney and No portion of the session shall be off the record, such advice is followed, no such fees shall be The court reporter's notes shall be fully assessed against the individual member or transcribed and filed with the entity's clerk members of the board or commission, within a reasonable time after the meeting. (6) Ail persons subject to subsection (l) are (d) The entity shall give reasonable public prohibited from holding meetings at any facility notice of the time and date of the attorney-client or location which discriminates on the basis of session and the names of persons who will be sex, age, race, creed, color, origin, or economic attending the session. The session shall status or which operates in such a manner as to commence at an open meeting at which the unreasonably restrict public access to such a persons chairing the meeting shall announce the facility, commencement and estimated length of the attorney-client session and the names of the (7) Whenever any member of any board or persons attending. At the conclusion of the commission of any state agency or authority or attorney-client session, the meeting shall be any agency or authority of any county, reopened, and the person chairing the meeting municipal corporation, or political subdivision shall announce the termination of the session. is charged with a violation of this section and is subsequently acquitted, the board or (e) The transcript shall be made part of the commission is authorized to reimburse said public record upon conclusion of the litigation. member for any portion of his or her reasonable *29303 attorney's fees. CR0 I (8) Notwithstanding the provisions of CREDIT(S) subsection (l), any board or commission of any 1997 Electronic Update state agency or authority or any agency or authority of any county, municipal corporation, CROI ,4mended by Laws 1991, c. 91-224, :[ 33: Laws or political subdivision, and the chief 1993, c. 93-232, 3q 1, eft. June 30, 1993; Laws 1995, c. administrative or executive officer of the 95-148, 3~ 210. eft. July 10, 1995; Laws 1995, c. 95-353, 3g governmental entity, may meet in private with I. eft. June 17, 1995. the entity's attorney to discuss pending litigation <<For additional credits, if any, see Historical Note to which the entity is presently a party before a court or administrative agency, provided that the field.>> following conditions are met: HISTORICAL NOTES (a) The eutity's attorney shall advise the entity HISTORICAL AND STATUTORY NOTES at a public meeting that he or she desires advice concerning the litigation. 1997 Electronic Update (b) The subject matter of the meeting shall be Laws 1991, c. 91-224, a reviser's bill, modified confined to settlement negotiations or strategy provisions for punishment of misdemeanors as contained in sessions related to litigation expenditures, this section by deleting reference to punishment pursuant to § 775.084 to conform with Laws 1988, c. 88-131 which deleted all references to misdemeannm from § 775.084. (C) The entire session shall be recorded by a certified court reporter. The reporter' shall Laws 1993, c. 93-232. § I, eff. June 30, 1993, added record the times of commencement and subsec. {8). termination of the session, all discussion and Laws 1995, c. 95-148, a reviser's bill, removed gender- proceedings, the names of all persons present at specific references applicable to human beings without any time, and the names of all persons speaking, substantive changes in legal effect. Copyright (c) West Group 1997 No claim to original U.S. Govt. works Dharma Holdings Limited Rodney G. Romano, Esq., General Counsel The Rectory Voice: 561-243-2400 14 South Swinton Avenue Fax: 561-243-3157 Delray Beach, Florida 33444-3654 Wheelhorse@mindspring.com Monday, August 30, 1999 Mayor and City Commissioners City of Delray Beach 100 NW 1't Avenue Delray Beach, Florida 33dqq HAND DELIVERY Re: Block 77 Dear Mayor and Commissioners: Please do not consent to approve these contracts tonight. At the very least, require the developer to place detailed site plans, parking plans, traffic study and architectural renderings on file with the city for a period of two weeks to give the public a chance to review and comment. That's a no risk, no cost alternative to rushing a decision that could plague the city for decades. You are about to get snookered into waiving valuable rights. Do you really want to give the Block 77 Group permission to bypass the planning review process and public participation'? Article F of the addendum grants automatic approvals if the city does not act on a request within an unspecified number of days. What if a request cannot be addressed due to a lack of a quorum? This provision constitutes and illegal waiver of the Land Development Regulations and unequal treatment. The contract allows an increase in density of 10%. The contract allows the developer to sell the unfinished project to an unknown third party - what if it's a REIT? The first right of refusal is unrealistic. The community strongly feels that Worthing Park should remain a public and passive park, but the contract gives the developer exclusive use of a significant part of Worthing Park for commercial purposes. Last October, the commission unanimously instructed the CRA to carefully consider the impact of each proposal on traffic congestion and parking, notwithstanding the TCEA. What is the answer? Who will suffer the impact of such density and intensity? How will this affect Atlantic Avenue as an escape route? In April, Mr. Siegal brought Mayor Alperin to my office to make clear that the mayor fully supported the Block 77 project. Attempting to be reassuring, the mayor told us that the city intended to have no more than three or four more such projects downtown. In July, the Mayor criticized me for being premature in opposing the project and upsetting the citizens, but now it is clear that my comments about Block 77 were accurate. Even Michael Weiner, a well-respected and hked member of the community, argued that a project of less than 60 owner occupied condominiums was more appropriate for the site than the Block 77 proposal. One big selling point is tax and business revenue. But the developer has up to four years to complete the project so the money won't come until then. Even then, that money goes to the CRA, not into the City budget. But the city will have to pay the increased expenses for parking garage security and park maintenance. It has been said that the density is necessary to keep local businesses from dying. However, Atlantic Avenue has sustained strong economic growth without prostituting itself up until now, and will continue to do so. A better, more sustainable way to increase the tax base is to concentrate on the revitalization of West Atlantic Avenue as a compliment and continuation of the success to the east. As of today, there are no site plans or project details on file with the city. If Block 77 is such a good deal why hasn't the developer shown its details before the city considers a contract? I know that community members will be glad to brainstorm ways that the Block 77 project can be modified to be good for the community and also profitable for the developer. Hopefully a reasonable compromise can be reached. Sincerely, [ITY OF I]ELAI:IY BEI1[H CiTY ATTORNEY'S OFFICE ,w TELEPIIONE 561/243-7090 · FACSIMII.E 561/278-4755 DFLRAY BI:ACH  Writer's Direct Line: 561/243-709 Ali. America City DATE: August 20, 1999 1993 TO: City Commission David Harden, CityManager FROM: Susan A. Ruby, City Attorn SUBJECT: Three Proposed Contracts for the Block 77 Development The attached draft agreements are submitted for your review prior to the August 30, 1999 meeting on the Development of Block 77. Below is an outline of the highlights of these agreements. Another agreement between the City and CRA shall also be needed in order to convey City property to the CRA. Please call me if you have any questions regarding any of these draft agreements. Contract for Sale and Purchase Between the CRA and Block 77 1. The City is going to convey or abandon property shown as parcels P, R, U, V, W, X, Y and Z (highlighted in yellow) to the CRA. The CRA will convey Parcel S (Lots 14 and 15) (highlighted in pink) and the lots highlighted in yellow to Block 77. [See the attached map]. 2. Block 77 shall construct 219 residential units with a 10% variance and 12,000 rental square feet of commercial/retail space with a 10% variance on Block 77 and a portion of Block 69. The number of residential units and square footage may be further adjusted if Block 77 acquires additional property subject to approval of the CRA and the City. 3. Closing is to occur thirty (30) days following Block 77 obtaining: (a) a 25 million dollar financing commitment, (b) site plan approvals, licenses, building permits and all other required governmental approvals, City Commission David Harden, City Manager Page 2 (c) control of Grip property (d) release of unity of title on Grip Parking (e) a market study showing economic viability of the project (f) presentation to CRA of a schedule of predevelopment costs and paid receipts (g) a performance bond in an amount to cover 110% of the construction costs of the project callable by the City and the CRA. (h) obtaining title to all the property from CRA. (i) the entering into of the Parking Agreement with the City and the Worthing Park Improvements Agreement with the City. 4. City retains all its governmental authority for approvals, including, but not limited to, zoning and site plan approval. CRA retains contractual rights to approve architectural design and site plans 5. CRA retains rights to repurchase property conveyed to Block 77 from Block 77 for the same price, if Block 77 fails to commence construction within thirty (30) days of closing, subject to acts of God. 6. Disputes shall be attempted to be resolved by mediation. If not resolved by mediation, they will be resolved by the court. 7. After commencement, but prior to issuing of a Certification of Occupancy, if Block 77 receives a bonafide offer to acquire the property, CRA shall have a right of first refusal to purchase the project, upon the same conditions contained in the bonafide offer. 8. Block 77 shall, at its expense, provide utility easements and pay for all costs of relocation, and for the streetscape. 9. If the contract does not close thirty (30) days after conditions set forth in Paragraph 3 above have been met or within one year from the date of execution, whatever occurs first, either party may terminate the Agreement. 10. The City is a third party beneficiary to the contract between Block 77 and the CRA. City Commission David Harden, City Manager Page 3 Worthing Park Improvement Agreement 1. City retains all ownership rights to Worthing Park. 2. Block 77 shall construct amenities, as will be depicted on site plans approved by the City and to be included as Exhibit A to the agreement. 3. The improvements will be completed forty-eight (48) months from issuance of a building permit, subject to extensions of time as may be required due to acts of God. 4. All improvements will be the property of the City and the City will maintain the improvements. 5. Block 77 shall not interfere with the use of the Park by the public, unless approved by the City. City shall issue permits for use of the Park and require security for cleanup, etc., in the City's sole discretion. 6. Block 77 may use the portions of Worthing Park adjacent to the commercial space for a sidewalk cafe or outdoor dining, if approved by the City and in compliance with City codes. Block 77 will cease immediately any illegal use, upon notice by the City. All uses must be approved by the City. 7. Block 77 will indemnify the City for damages and claims resulting from the installation of improvements. Separate indemnifications will be provided for other use of the park. 8. Block 77 insists on including a provision that the prevailing party's attorney's fees and costs be paid by the non-prevailing party in the event of a dispute. Parking Management, Maintenance, Security Agreement 1. Block 77 shall grant to the City i07 public parking spaces by an exclusive perpetual easement in the parking facility, either below grade or on grade level which will be separated and buffered from private parking on Block 77. Block 77 shall also grant non-exclusive access easements thereto and a non-exclusive license for 40 (Grip) spaces between 6:01 p.m. and 7:59 a.m., Monday through Friday, and 12:01 p.m. Saturdays through 7:59 a.m. Mondays, in addition to easements for drainage and utilities. City Commission David Harden, City Manager Page 4 2. During construction, Block 77 will provide approximately 50 temporary spaces to be located in the Sun Trust lot by lease. The lease shall be for 60 months and renewable for 4 additional months. Block 77 shall be responsible for all lease costs. If Block 77 defaults, the City may cure the default and become the prime tenant under the lease or cancel the lease and pursue remedies per contract. At Block 77's sole discretion it may permit the City to retain the City's existing parking at its present location during construction and Block 77 will construct the private parking garage first, and the City will then, upon receipt of a temporary Certificate of Occupancy, occupy the private parking until the public parking is complete. If the public parking is not constructed in forty-eight (48) months, the City retains an easement in the private parking facility. As mentioned above, this option is at Block 77's sole discretion. If Block 77 does not exercise this option, the City's only security is the sixty (60) month lease on the Suntrust lot and the performance payment bond. 3. City may install parking meters or other parking revenue collection systems. All monies to be retained by the City. 4. The City's easements shall be clear of liens and encumbrances and superior to any mortgages. 5. Block 77 is required to complete the construction of the parking facility not later than 48 months from building permit issuance, which may be extended by acts of God. 6. The parties will attempt to resolve disputes by mediation. If they cannot be resolved, the dispute will be decided by the court. 7. Performance and payment bond is required for the costs of construction of the public parking facility and is callable as by the City and CRA. Other security in the amount of $100,000 is provided for maintenance for a two year period. This obligation to maintain is not limited to the time or amount of the maintenance bond. 8. If Block 77 fails to timely construct the parking, the City may call on the bond to complete the public parking portion of the project. If the security is inadequate, the City may complete the parking at Block 77's expense and the City shall have lien rights superior to all mortgages, leases, and encumbrances. City Commission David Harden, City Manager Page 5 9. Block 77 is responsible for all maintenance and security cots, and all costs of constructing the public parking. If Block 77 closes the public parking, they will give fifteen (15) days prior written notice to the City and use due diligence in making the repair. 10. If Block 77 fails to pay for repairs, a first lien will be placed on the property which may be foreclosed by the City. Other collection remedies shall also be available to the City. 11. If there is damage to the public parking by fire or any other cause Block 77 shall restore and/or repair the facility. 12. City is to pay for signage unless upgraded signs are desired by Block 77. Block 77 will pay for the upgraded signs. Block 77 will pay for and provide for lighting, security, janitorial services, and pay all utilities, taxes and assessments. 13. Block 77 shall provide insurance (as included in Exhibit D) and shall indemnify the City. 14. The Agreement provides for assignment, if certain conditions are met (see Paragraph 12 of the Parking Agreement), however, the City may reject an assignment if the City reasonably determines that the conditions are not met. 15. Block 77 insists on including a provision for attorney's fees and costs to the prevailing party in any dispute. Please call me to discuss the agreement if you have any questions. SAR:ci Attachments cc: Chris Brown, Director, CRA Mitch Kirschner, Esq. Bruce Grundt, Esq. Bob Federspiel, Esq. LOT 7 BLOCK 77 ~ LOT J J ~ BLOCK 77 , ...... ~'~ ...... 80.20"- LOT 13 __ BLOCK 77 139. 92' ~r *'~'~ J I I ~ - C S.~ 2ND ~ VENUE L CONTRACT FOR SALE~ PURCHASE~ AND DRVELOPM~NT AGREEMENT PARTIES: DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY, of 24 North Swinton Avenue, Delray Beach, Florida 33444 (Phone: 276-8640), ("Seller"), and BLOCK 77 DEVELOPMENT GROUP, L.C., ("Buyer"), of 5000 Blue Lake Drive, Suite 150, Boca Raton, Florida 33431, (Phone: ), hereby agree that the Seller shall sell and Buyer shall buy the following real property ("Real Property") and personal property ("Personalty") (collectively "Property") upon the following terms and conditions which INCLUDE the Standards for Real Estate Transactions attached ("Standard(s)") and any addendum to this instrument. I. DESCRIPTION: (a)Legal descriptions of Real Property located in Palm Beach County, Florida: Parcel P: That part of the 16 foot wide alley right of way lying South of and adjacent to Lots 4, 5 and 6, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3 (sheet 2) of the Public Records of Palm Beach County, Florida. Parcel R: That part of the 16 foot wide alley right of way lying West of and adjacent to Lots 14 and 15, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3 (sheet 2) of the Public Records of Palm Beach CountY, Florida. Parcel S: All of Lot 14 and the North 65.2 feet of Lot 15, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3 (sheet 2) of the Public Records of Palm Beach County, Florida. Parcel U: The South 59.84 feet of Lots 4, 5, and 6, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3 (sheet 2) of the Public Records of Palm Beach County, Florida. Parcel V: The North 16.0 feet of Lot 13, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3 (sheet 2) of the Public Records of Palm Beach County, Florida. parcel W: Lot 13, LESS the North 16.00 feet thereof, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3 (sheet 2) of the Public Records of Palm Beach County, Florida. Parcel ~: The North 16.0 feet of Lot 7, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3 (sheet 2) of the Public Records of Palm Beach County, Florida. Parcel Y: Lot 7, LESS the North 16.0 feet thereof, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3 (sheet 2) of the Public Records of Palm Beach County, Florida. Parcel Z: That part of the 16 foot wide alley Right-of-Way lying West of and adjacent to Lot 13, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3 (sheet 2) of the Public Records of Palm Beach County, Florida. (b) Street address, city, zip, of the Properties are: (c) Personalty: None II. PURCHASE PRICE PAID TO CRA: ........................... $ 180,000.00 PAYMENT: (a) Deposit to be held in escrow by Robert W. Federspiel in the amount of $ 50,000.00 (b) Balance to close (U.S. cash, LOCALLY DRAWN certified or cashier's check), subject to adjustments and prorations $ 130,000.00 III. TITLE EVIDENCE: Within seven (7) days after the execution of this Contract Seller shall, at Seller's expense, deliver to Buyer or Buyer's attorney, in accordance with Standard A, (CHECK (1) OR (2)): (1)Dabstract of title or (2)[] title insurance commitment and, after closing, owner's policy of title insurance. IV. CLOSING DATE: SEE ADDENDUM TO CONTRACT FOR SALE AND PURCHASE CLAUSE C ATTACHED ~ERETO. V. RESTRICTIONS; EASEMENTS; LIMITATIONS: Buyer shall take title subject to: zoning, restrictions, prohibitions and other requirements imposed by governmental authority; restrictions and matters appearing on the plat or otherwise common to the subdivision; public utility easements of record (easements are to be located contiguous to Real Property lines and not more than 10 feet in width as to the rear or front lines and 7½ feet in width as to the side lines, unless otherwise stated herein); taxes for year of closing and subsequent years; assumed mortgages and purchase money mortgages, if any; other None; provided that there exists at closing no violation of the foregoing and none of them prevents use of Real Property for residential purposes. VI. OCCUPANCY: The property shall be unoccupied as of the date of closing. Seller agrees to delivery occupancy of Property at time of closing unless otherwise stated herein. If occupancy is to be delivered before closing, Buyer assumes all risk of loss to Property from date of occupancy, shall be responsible and liable for maintenance from that date, and shall be deemed to have accepted Property in their existing condition as of time of taking occupancy unless otherwise stated herein or in a separate writing. VII. TYPEWRITTEN OR HANDWRITTEN PROVISIONS: Typewritten or handwritten provisions shall control all printed provisions of Contract in conflict with them. VIII. RIDERS: (CHECK if any of the following Riders are applicable and are attached to this Contract): a)DCoastal Construction Control Line Rider b)DCondominium Rider c)DForeign Investment in Real Property Tax Act Rider d)DInsulation Rider e)DFHA/VA Rider f)DOther: IX. ASSIGNABILITY: (CHECK (1) oR (2)): Buyer (1)Dmay assign or (2)~may not assign Contract. X. SPECIAL CLAUSES: (CHECK (1) OR (2)): Addendum (1)~is attached OR~ (2)Dis not applicable. XI. TIME IS OF THE ESSENCE OF THIS CONTRACT. XII. DISCLOSURES: Buyer ~acknowledges or Odoes not acknowledge receipt of the agency/radon/compensation and estimated closing costs disclosures. BUYER'S INITIALS Buyer Date Seller Date Social Security Social Security or Tax ID No. or Tax ID No. Buyer Date Seller Date Social Security Social Security or Tax ID No. or Tax ID No. STANDARDS FOR REAL ESTATE TRANSACTIONS A. E~-/DENC~ OF TITLE: (1)An abstract of title prepared or brought current by a reputable and existing abstract firm (if not existing then certified as correct by an existing firm) purporting to be an accurate synopsis of the instruments affecting title ~ Real Property recorded in the public records of the county wherein Real Property is located, through Effective Date and which .hall commence with the earliest public records, or such later date as may be customary in the county. Upon closing of this transaction the abstract shall become the property of Buyer, subject to the right of retention thereof by first mortgagee until fully paid. (2) A title insurance commitment issued by a Florida licensed title insurer agreeing to issue to Buyer, upon recording of the Warranty Deed to Buyer, an owner's policy of title insurance in the amount of the purchase price, insuring Buyer's title to Real Property, subject only to liens, encumbrances, exceptions or qualification set forth in this Contract and those which shall be discharged by Seller at or before closing. Seller shall convey a marketable title subject only to liens, encumbrances, exceptions or qualifications set forth in Contract. Marketable title shall be determined according to applicable Title Standards adopted by authority of The Florida Bar and in accordance with law. Buyer shall have 30 days, if abstract, or 5 days, if title commitment, from date of receiving evidence of title to exafaine it. If title is found defective, Buyer shall, within 3 days, notify Seller in writing specifying defect(a). If the defect(s) render title unmarketable, Seller will have 120 days from receipt of notice within which to remove the defect(s)· failing which Buyer shall have the option of either accepting the title as it then is or demanding a refund of deposit(s) paid which shall immediately be returned to Buyer; thereupon Buyer and Seller shall release one another of all further obligations under the Contract. Seller will, if title is found unmarketable, use diligent effort to correct defect(s) in title within the time provided therefor, including the bringing of necessary suits. B. [=~J'~E~R~E; S,~,CUI~'~'~'A~[:~ ~ S~T'T'~: A purchase money mortgage and mortgage note to Seller shall provide for a 30 day grace period in the event of default if a first mortgage and a 15 day grace period if second or lesser mortgage; shall provide for right of prepayment in whole or in part without penalty; shall not permit acceleration or interest adjustment in event of resale of Real Property; shall require all prior lien and encumbrances to be kept in good standing and forbid modifications of or future advances under prior mortgage(s); and the mortgage, note and security agreement shall be otherwise in form and content required by Seller; but Seller may only require clauses customarily found in mortgages, mortgage notes, and security agreements generally utilized by saving and loan institutions, or state or national banks located in the county wherein Real Property is located. All Personalty and leases being conveyed or assigned will, at Seller's option, be subject to the lien of a security agreement evidenced by recorded financing statements. If a balloon mortgage, the final payment will exceed the periodic payments thereon. C. SURVEY: Buyer, at Buyer's expense, within time allowed to deliver evidence of title and to examine same, may have Real Property surveyed and certified by a registered Florida surveyor. If survey shows encroachment on Real Property or that improvements located on Real Property encroach on setback lines, easements, lands of others, or violate any restrictions, Contract covenants or applicable governmental regulation· the same shall constitute a title defect. Property lnapcctc~ by a Florida Ccrtific~ Pc£t -~"~ 9pcratcr tc '~ctcrmino ~ ~ ir -._~' _ the F!erida Past Ccntrc! Act. ;. INGRESS ~ EGRESS: Seller warrants and represents that there is ingress and egress to the Real Property sufficient for the intended use as described in Paragraph VII hereof, title to which is in accordance with Standard A. F. LIENS: Seller shall furnish to Buyer at time of closing an affidavit attesting to the absence, unless otherwise provided for herein, of any financing statements, claims of lien or potential lienors known to Seller and further attesting that there have been no improvements or repairs to Property for 90 days immediately preceding date of closing. If Property has been improved, or repaired within that time, Seller shall deliver releases or waivers of mechanics' liens executed by all general contractors, subcontractors, suppliers· and materialmen in addition to Seller's lien affidavit setting forth the names of all such general contractors, subcontractors, suppliers and materialmen and further affirming that all charges for improvements or repairs which could serve as a basis for a mechanic's lien or a claim for damages have been paid or will be paid at closing of this Contract. G. PLACE OF CLOSING: Closing shall be held in the county where Real Property is located, at the office of the attorney or other closing agent designated by Seller. H. TIber: Time periods herein of less than 6 days shall in the computation exclude Saturdays, Sundays and state or national legal holiday~, and any time period provided for herein which shall end on Saturday, Sunday or legal holiday shall extend to 5:00 p.m. of the next business day. I. ~S FOR CLOSINg: Seller shall furnish Warranty Deed, bill of sale, mechanic's lien affidavit, assignments of leases, tenant and mortgage estoppel letters, and corrective instruments. Buyer shall furnish closing statement, mortgage, mortgage note, security agreement, and financing statements. J. EXPENSES: Documentary atamps on the Warranty Deed and recording corrective instruments shall be paid by Seller. Documentary stamps, intangible tax and recording purchase money mortgage to Seller, Warranty Deed and financing statements shall be paid by Buyer. K. PRORATIONS; CREDITS: Taxes, assessments, rent, interest, insurance and other expenses and revenue of Property shall be prorated through day before closing. Buyer shall have the option of taking over any existing policies of insurance, if assumable, in which event premiums shall be prorated. Cash at closing shall be increased or decreased as may be required by prorations. Prorations will be made through day prior to occupancy if occupancy occurs before closing. Advance rent and security deposits will be credited to Buyer and escrow deposits held by mortgagee will be credited to Seller. Taxes shall be prorated based on the current year's tax with due allowance made for maximum allowable discount, homestead and other exemptions. If closing occurs at a date when the current year's millage is not fixed, and current year's assessment is available, taxes will be prorated based upon such assessment and the prior year's millage. If current year's assessment is not available, then taxes will be prorated on the prior year's tax. If there are completed improvements on Real Property by January let of year of closing which improvements were not in existence on January 1st of the prior year then taxes shall be prorated based upon the prior year's millage and at an equitable assessment to be agreed upon between the parties, failing which, request will be made to the County Property Appraiser for an informal assessment taking into consideration available exemptions. Any tax proration based on an estimate may, at request of either Buyer or Seller, be subsequently readjusted upon receipt of tax bill on condition that a statement to that effect is in the closing statement. %. SPECIAL A~SESS~4ENT LIENS: Certified, confirmed and ratified special assessment liens as of date of closing (not as of Effective Date) are to be paid by Seller. Pending liens as of date of closing shall be assumed by Buyer. If the improvement has been substantially completed as of Effective Date, such pending lien shall be considered as certified, confirmed or ratified and Seller shall, at closing, be charged an amount equal to the last estimate of assessment for the improvement by the public body. ofo~tc not rope:Lcd. If repair: or __~ ........... 2r~ ........................................ If the cent for :u:h repair: =r :op!nccmcnt oxoccd~ 2% cf the purcha:e pr!cc, ~uycr cr Se!lo: moy elect tc ~:y =ach oncocc, N. RISK OF LOSS: If the Property is damaged by fire or other casualty before closing and cost of restoration does not exceed 3% of the assessed valuation of the Property so damaged, cost of restoration shall be an obligation of the Seller and closing shall proceed pursuant to the terms of Contract with restoration costs escrowed at closing. If the cost of restoration exceeds 3% of the assessed valuation of the improvements so damaged, Buyer shall have the option of either taking Property as is, together with either the 3% or any insurance proceeds payable by virtue of such loss or damage, or of canceling Contract and receiving return of deposit(s}. O. PROCEEDS OF SAX, E; CLOSIN~ PROCEDURE: The Warranty Deed shall be recorded upon clearance of funds. If abstract, evidence of title shall be continued at Buyer's expense to show title in Buyer, without any encumbrancea or charge which would render Seller's title unmarketable from the date of the last evidence. Proceeds of the sale shall be held in escrow by Seller's attorney or by such other mutually acceptable escrow agent for a period of not longer than 5 days from and after closing date. If Seller's title is rendered unmarketable, through no fault of Buyer, Buyer shall, within the 5 day period, notify Seller in writing of the defect and Seller shall have 30 days from date of receipt of such notification to cure the defect. If Seller fails to timely cure the defect, all deposit(s) shall, upon written demand by Buyer and within 5 days after demand, be returned to Buyer and simultaneously with such repayment, Buyer shall return Personalty and vacate Real Property and reconvey it to Seller by Warranty Deed. If Buyer fails to make timely demand for refund, Buyer shall take title as is, waiving all rights against Seller as to any intervening defect except as may be available to Buyer by virtue of warranties contained in the Warranty Deed. If a portion of the purchase price is to be derived from institutional financing or refinancing, requirements of the lending institution as to place, time of day and procedures for closing, and for disbursement of mortgage proceeds shall control over contrary provision in this Contract. Seller shall have the right to require from the lending institution a written commitment that it will not withhold disbursement of mortgage proceeds aa a result of any title defect attributable to Buyer-mortgagor. The escrow and closing procedure required by this Standard may be waived if title agent insures adverse matters pursuant to Section 627.7841, F.S.(1989), aa amended. P. ESCROW: Any escrow agent ("Aqent") receiving funds or equivalent is authorized and agrees by acceptance of them to deposit them promptly, hold s~e in escrow and, subject to clearance, disburse them in accordance with terms and conditions of Contract. Failure of clearance of funds shall not excuse Buyer's performance. If in doubt as to Agent's duties or liabilities under the provisions of Contract, Agent may, at Agent's option, continue to hold the subject matter of the escrow until the parties mutually agree to its disbursement, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties or Agent may deposit with the clerk of the circuit cou~t having jurisdiction of the dispute. Upon notifying ali parties concerned of such action, all liability on the part of Agent shall fully terminate, except to the extent of accounting for any ttems previously delivered out of escrow. If a licensed real estate broker, Agent will comply with provisions of Chapter 475, .S.(1989), as emended. Any suit between Buyer and Seller where Agent ia made a party because of acting as Agent hereunder, or in any suit wherein Agent interpleada the subject matter of the escrow, Agent shall recover reasonable attorneys' fees and costs incurred with the fees and costs to be paid from and out of the escrowed funds or equivalent and charged and awarded aa court costs in favor of the prevailing party. Parties agree that Agent shall not be liable to any party or person for misdelivery to Buyer or Seller of items subject to this escrow, unless such misdelivery ia due to willful breach of Contract or gross negligence of Agent. Q. A-~TOP/~EY FEES; COSTS: In any litigation arising OUt of this Contract, the prevailing party in such litigation which, for the purposes of this Standard, shall include Seller, Buyer, listing broker, Buyer's broker and any aubagents to the listing broker or Buyer's broker, shall be entitled to recover reasonable attorney's fees and costs. R. FAXLUR~ OF P~R~O~h%NCE: If Buyer faila to perform this Contract within the time specified (including payment of all deposit(s)), the deposit(s} paid by Buyer and deposit(s} agreed to be paid, may be retained by or for the account of Seller aa agreed upon liquidated damages, consideration for the execution of this Contract and in full settlement of any claims; whereupon, Buyer and Seller shall be relieved of all obligations under Contract; or Seller, at Seller's option, may proceed in equity to enforce Seller's rights under this Contract. If, for any reason other than failure of Seller to make Seller'a title marketable after diligent effort, Seller fails, neglects or refuses to perform thin Contract, the Buyer may seek specific performance or elect to receive the return of Buyer's depoait(s) without thereby waiving any action for damages resulting from Seller's breach. S. CONTRACT NOTP, F~COR~IAm~F; PEIt~O~S~H~); NOTICE: Neither this Contract nor any notice of it shall be recorded in any public records. This Contract shall bind and inure to the benefit of the parties and their successors in interest. Whenever the context permits, singular shall include plural and one gender shall include all. Notice given by or to the attorney for any party shall be aa effective aa if given by or to that party. T. CONVEYANCE: Seller shall convey title to Real Property by statutory warranty, trustee's, personal representative's or guardian's deed, as appropriate to the staten of Seller, subject only to matters contained in Paragraph VII and those otherwise accepted by Buyer. Personalty shall, at request of Buyer, be transferred by an absolute bill of sale with warranty of title, subject only to such matters aa may be otherwise provided for herein. U. OTHE~A~RF22~ENTS: No prior or present agreements or representations shall be binding upon Buyer or Seller unless included in this Contract. No modification or change in this Contract shall be valid or binding upon the parties unless in writing and executed by the party or parties intended to be bound by it. V. WARRANTIES: Seller warrants that there are no facts known to Seller materially affecting the value of the Real Property which are not readily observable by Buyer or which have not been disclosed to Buyer. ADDENDUM TO CONTRACT FOR SALE AND PURCHASE SELLER: DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY BUYER: BLOCK 77 DEVELOPMENT GROUP, L.C. XIII. SPECIAL CLAUSES (Continued): A. RADON GAS: Radon gas is naturally occurring radioactive gas that, when it is accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. Paragraph N of the Standards for Real Estate Transactions attached to this contract is hereby deemed to include an inspection for radon gas. B. DUE DILIGENCE/BUYER'S RIGHT TO CANCEL. The parties acknowledge and agree that the Property is being sold in its "as-is" condition and the Buyer hereby acknowledges that Buyer has heretofore had an opportunity to inspect the Property and perform such tests as desired and have determined the same to be acceptable. Notwithstanding which, Seller represents that to the best of Seller's knowledge there are no latent defects known to Seller, the existence of which are not readily discoverable by standard due diligence undertakings. C. Notwithstanding the provisions of Article 4 of this Contract, the title insurance commitment, together with copies of each such exception, or at a minimum a list of proposed permitted exceptions to appear in the title insurance w/block77/cra/addendum.0 ! n.da.080699 Page 1 commitment, shall be delivered to Buyer not later than ten (10) days following the Effective Date of the Contract. D. The Closing of the transaction herein contemplated shall occur on the first business day, thirty (30) days following the satisfaction of each of the conditions precedent to Closing hereinafter numbered as Items 1 through 8, inclusive, the satisfaction of each of which Buyer shall exert diligent effort to obtain: 1. Buyer having obtained a financing commitment for the lending of funds to be utilized to construct and develop the Property, in conjunction with other properties under the ownership or control of Buyer to be integrated into the Project as contemplated in Buyer's response to the Request for Proposals ("RFP") issued by the Seller and as otherwise specified in this Contract in an amount of not less than $25,000,000.00, unless a lesser amount is determined by Buyer to be satisfactory in Buyer's sole and absolute discretion upon terms acceptable to the Buyer. Buyer will provide Seller with a copy of the loan commitment which Buyer intends to execute for Seller's consent which consent shall not be unreasonably withheld or delayed by Seller. The financing commitment shall include an express provision for the partial release of the Property from the lien of the lender's mortgage and other collateralizing instruments on the Project, in the event Seller shall elect its buy-back rights, as provided for in Paragraph F herein. 2. Buyer having obtained all approvals necessary for the development and construction of the Project, including but not limited,,to, site plan acceptance, permits (including all requisite building permits) and licenses, as applicable from Seller, the City of Delray Beach, County of Palm Beach and such other governmental authorities and/or agencies for wfolock77/cra/addendum.01 ri.da.080699 Page 2 the construction and operation of the Project as may be required by law, ordinance and as defined in this Contract. The CRA shall reasonably cooperate with Buyer in Buyer's efforts to secure the t~erein contemplated approvals. 3. Buyer having provided to Seller proof of site control of the parking facilities serving the GRIP Building (the "GRIP Parking") as was incorpc~rated in the Buyer's response to Seller's RFP. The legal description for GRIP Parking is attached hereto and made a part hereof as Exhibit "A" to this Addendum. Buyer has previously delivered to Seller proof of site control of all other parcels to be integrated into the Project as of the date of Closing. For purposes of this Agreement the term "Project" includes the Property herein being acquired together with those additional parcels of real property under the ownership or control of Buyer, the legal descriptions of which are attached hereto and made a part hereof as composite Exhibit "B" to this Addendum, the "Additional Parcel(s) together with the improvements contemplated to be constructed on the Property and the Additional Parcels Property in a comprehensive integrated residential/retail and commercial multi-use integration. 4. The obtaining from the City of Delray Beach the termination, modification or substitution of the Unity of Title between the GRIP Building and the GRIP Parking so as to enable the conveyance of the GRIP Parking by the owner of the GRIP Parking to Buyer. 5. Buyer's obtaining of a market study evidencing the economic viability of the proposed Project. Such study may be the same study required to be presented to the Buyer's lender. The results of the market study shall w/block77/cra/addendum.01 n.da.080699 Page 3 be satisfactory to Seller in Seller's commercially reasonable discretion. Buyer shall reimburse Seller for Seller's reasonably incurred expenses for economic analysts employed to provide assistance to Seller in Seller's review of the market study, as provided in Section K hereof. 6. Not later than concurrently with the execution of this Contract, the Buyer shall deliver to the Seller a schedule of predevelopment costs and expenses incurred to date by the Buyer together with either (i) paid receipts therefor, or (ii) evidence of line-items under the Construction Schedule to pay for same, together with a projection of those costs anticipated to be incurred prior to Closing. At Closing, Buyer shall deliver to Seller paid receipts for such further incurred expenses. 7. Buyer shall, at Closing, obtain or cause to be obtained a Material and Labor Payment and Performance Bond ("Performance Bond"). The Performance Bond must be issued by an insurance company or surety company on the U.S. Department of Treasury current approved list of acceptable sureties on Federal Bonds, as found in U.S. Department of the Treasury, Circular 570, as same may be updated from time to time (current list effective 7-1-93). The Performance Bond must be in accordance with Section 713.23, Florida Statutes, and must serve to guarantee completion of construction of the Project in accordance with the approved Site Plan and this Contract and the payment of all costs incurred therein. The Performance Bond shall include an obligee rider naming the Seller, City and Buyer's mortgagees, as obligees and shall,, by its terms, specifically be callable by Seller or City, as each of their respective interests appear in the event of Buyer's failure to construct the Project (including the Public Parking Facility) in accordance with the provisions of this Agreement and approved site plan, which shall include w/block77/cra/addendum.O In.da.080699 Page 4 the Public Parking Facility and col lateral improvements referenced in the Parking, Management, Maintenance and Security Agreement attached hereto as Exhibit "D" in consideration for which, in part, the parties acknowledge and stipulate that the City has a specific interest in this Performance Bond. Seller and City agree that prior to calling the Performance Bond, the Seller and/or City, as applicable shall give written notice to Buyer and Buyer's mortgagees of City or Seller's intention to do so and thirty (30) days opportunity to cure the matter(s) which would, in the Seller's or City's determination, otherwise give rise to the Seller's or City's right to call such Performance Bond which such matter(s) shall be specified in that notice. The Performance Bond shall be in an amount equal to One Hundred Ten (110%) Percent of the budgeted costs for the construction of the Project (including the Public Parking Facility), in accordance with the site plan and approved plans and specifications for the Project. Not later than the time the Performance Bond is required to be delivered to Seller, Buyer shall also cause to be delivered to Seller and City, an agreement(s) of the architects and engineers who prepared tt~e plans for the Project that, if Seller calls the Performance Bond in accordance with the terms of this Agreement, Seller shall have the right to utilize said plans to construct the Project. 8. Closing under this Contract is contingent upon the Seller obtaining title from the City by conveyance, right-of-way or abandonment to those parcels of property owned by the City (the "City Parcels"), as shown in cross-grid on that certain survey prepared by O'Brien, Suiter & O'Brien, Inc., dated December 18, 1997 as revised through March 31, 1999, appended hereto as Exhibit "C" and made a part of this Addendum. w/block77/cra/addendum.01 n.da.080699 Page 5 E. The development of the Property, the Additional Parcels and the comprehensive Project shall be made subject to the following mandates and qualifications: 1. Buyer shall construct and develop Two Hundred Nineteen (219) residential units, subject, however, to a ten ('10%) percent variance in the number of residential units to be constructed, plus or minus. 2. Buyer shall construct and develop not less than Twelve Thousand (12,000) rentable square feet of commercial and/or retail space, subject, however, to a ten (10%) percent variance in the amount of rentable square fee, plus or minus. 3. The foregoing conditions in subsections (1) and (2) above as to the number of residential units and the total rentable square footage of retail and/or commercial space in the Project, may be further adjusted in the event Buyer acquires title and/or control to additional Parcel(s) proposed to be incorporated in the Project. Provided further, however, that any adjustment to the total number of residential units or square feet of retail and/or commercial space to be developed and constructed as part of the Project shall be subject to the approval of Seller and, as applicable, the appropriate jurisdiction of other agencies of the City as may relate to, by way of example but not limitation, density and in all other respects the Seller's approval rights to utilization of additional properties to be incorporated in the Project, other than the Additional Parcels. 4. Closing under this Contract is made expressly contingent upon the execution by Buyer and the City of that certain PARKING MANAGEMENT, MAINTENANCE AND SECURITY AGREEMENT attached hereto and made a part hereof as Exhibit "D" to this wPolock77/cra/addendum.O1 n.da.080699 Page 6 Addendum, to which the Seller is not a signatory but is a third party beneficiary. This Agreement is made subject to the Seller's approval of the PARKING MANAGEMENT, MAINTENANCE AND SECURITY AGREEMENT, which approval shall be evidenced by Seller's execution of this Contract. 5. Closing under this Contract is made further expressly contingent upon the execution by Buyer and City of that certain WORTHING PARK IMPROVEMENTS AGREEMENT in the form attached hereto and made a part hereof as Exhibit "E" to this Addendum to which the Seller is not a signatory but is an acknowledged third party beneficiary. This Agreement is made subject to the Seller's approval of the WORTHING PARK IMPROVEMENTS AGREEMENT, which approval shall be evidenced by Seller's execution of this Contract. F. Seller shall, in its conveyance of the Property to Buyer, reserve its authority to approve the architectural design and site plan of the Project to be developed on the Property and the Additional Parcels as an integrated, comprehensive Project. The hereinabove referenced approvals shall be in the sole discretion of Seller and the City, with such reservation of approval rights running with the Property. Nothing contained in this Paragraph F shall limit in any way the approvals required by the City, nor shall this Paragraph F create any right not otherwise vested in the City. Any request for approval not acted upon by Seller within five (5) business days of proper application by Buyer shall be deemed approved and granted. Notwithstanding the foregoing, following the completion of the Project, as evidenced by the issuance of a Certificate of Occupancy, Seller's reservation of approval to subsequent modifications to the structures on the Property shall be limited to a standard of reasonableness. w/block77/cra/addendum.01 n.da.080699 Page 7 G. SELLER'S REPURCHASE RIGHTS. 1. PRIOR TO COMMENCEMENT OF SUBSTANTIAL CONSTRUCTION. Seller expressly reserves the right to repurchase the Property being sold by Seller to Buyer hereunder, for the same Purchase Price as paid by Buyer to Seller hereunder, in the event the Buyer shall fail to commence construction of the Project. Subject however to extensions for delays attributable to Force Majeure as hereinafter provided. For purposes of this Section, the term "commencement of construction" shall mean: (i) the initiation and continuance by Buyer of site preparation work which shal I, for purposes of this Section incl ude excavation, fencing of the site, installation of a construction trailer, clearing and relocation of utilities on the Project within the initial thirty (30) days following the later to occur of (a) the Closing or (b) the issuance of the building permit(s) requisite to performing site work; and (ii) the commencement of the installation of the concrete foundation for at least one of the structures to be constructed within the Project upon Block 77 within One Hundred Eighty (180) days of the later to occur of items (a) and (b) of (i) above. Notwithstanding the provisions of the immediately preceding sentence, the commencement dates time initiations provided above may be extended on a day-for-day basis for delays occasioned by acts of God, catastrophe and inclement weather which is in excess of those days normally forecasted by the National Weather Service for the give month in South Florida which interfere with construction, unforeseen physical conditions on the site, unavailability or shortages of material or labor, labor disputes, governmental approvals or restrictions or other matters beyond the reasonable control of Buyer (collectively "Force Majeure"). By the tenth (10) business day of each of each month, Buyer shall deliver or cause to be delivered to Seller a list of the days during each proceeding month as to which Buyer believes the Force Majeure wPolock77/cra/addendum.01 n.da.080699 Page 8 provisions apply and the reasons therefore. Seller shall, within ten (10) business days after receipt of any such list provide notice to Buyer as to whether Seller disputes that any of the days set forth on that list would give rise to an extension of time for Buyer's performance based on Force Majeure. Any days claimed to be subject to the foregoing Force Majeure provision by Buyer which are not so disputed by Seller within said time period shall be deemed approved by Seller. In the event of a dispute between Seller and Buyer as to whether there has been a commencement of construction as provided in this Section G.1, or whether a claim for delay is valid or otherwise in connection with this Agreement and the transactions contemplated thereby shall be endeavored to be resolved and settled by mediation using a mutually acceptable third-party mediator. Such mediator shall be appointed upon the written demand of either party. Upon such appointment, the mediation shall be held within fifteen (1 5) days at a mutually agreeable site in Palm Beach County, Florida. The fees and expenses of such mediator shall be borne equally by the parties hereto. In the event of the failure of the parties to settle the dispute by mediation, either party may bring the dispute for legal redress before the Circuit Court in and for Palm Beach County, Florida. 2. SUBSEQUENT TO COMMENCEMENT OF SUBSTANTIAL CONSTRUCTION/PRIOR TO CERTIFICATE OF OCCUPANCY. Subsequent to Buyer's commencement of construction as said term is defined is Section G. 1. above, but prior to the issuance of a Certificate of Occupancy for the Project, should Buyer receive a bona-fide offer to purchase the Project from a non-affiliated third-party in an arms-length transaction ("Offer") to acquire the Project which Buyer wishes to accept, Seller shall have a first right of refusal to purchase the Project wfolock771craladdendum.Oln.da.080699 Page 9 upon the same terms and conditions contained in the offer. In the event of the receipt of the Offer during the term herein, Buyer shall present to Seller a true copy of the Offer which Buyer intends to accept. Upon the presentation of the Offer to Seller by Buyer, Seller shall have thirty (30) days within which to elect to exercise its right of first refusal to the Offer by the delivery of written notice to Buyer of its exercise of its right of first refusal to the Project in accordance with the terms and conditions contained in the Offer and this Section. The closing between Buyer and Seller under the right of first refusal this Section G.2, following Seller's notice of its election, shall occur within thirty (30) days following the Seller's exercise of its right of right refusal. In the event Seller fails to timely exercise its first right of refusal, Buyer shall be free to close under the Offer pursuant to the terms of the Offer. In the event Seller shall not exercise its right of first refusal hereunder, the party making the Offer ("Offeror") shall acquire the Project in conformance with all surviving terms and conditions of this Agreement (which shall include all addenda hereto) as well as all easements granted by Buyer to the public pursuant to the terms of this Agreement or otherwise granted in the course of the development of the Project. H. The Buyer further acknowledges that Buyer shall be required to provide, at Buyer's expense, such utility easements or replacement easements for the relocated utilities as the City and applicable utilities may reasonably require. Buyer shall be responsible for all costs of relocating and substituting any required utilities. I. Buyer agrees to construct and provide the streetscape on the perimeter of the Property in a manner as approved by the CRA and the City of Delray Beach w/block77/cra/addendum.O 1 n.da.080699 Page 10 from Atlantic Avenue to the South end of its project on both Southeast First Avenue and Southeast Second Avenue on the adjacent right-of-way. J. The parties warrant and agree that there is no broker involved in this transaction and each party hereto indemnifies the other against any claims made in contradiction to the warrant herein contained. K. In the event the closing of the transaction contemplated under the Contract shall not have occurred as of the later of (i) the satisfaction of all of the conditions precedent contained in Section D hereinabove, or (ii) twelve (12) months from the date of the execution of this Agreement and all Exhibits hereto, either party may elect to terminate this Contract upon ten (10) days prior notice to the other, whereupon all deposit monies paid, by or on behalf of Buyer together with all interest accruing thereon shall be returned to Buyer where upon each of the parties shall be released from any obligations pursuant to this Contract, except however Buyer shall reimburse Seller for Seller's expenses incurred in the review of the market study and parking plans as contained in this Agreement up to the maximum amounts to follow: Market Study: $2,500.00 Parking Plan: $6,000.00 In addition, Buyer shall be required to have paid all of Buyer's consultants and advisors who have performed services for Buyer pursuant to this Contract who have any lien rights as to the Property as evidenced by obtaining paid receipts therefor and presenting same to Seller. L. The parties hereto acknowledge that while not joining in this Agreement, City is a third-party beneficiary to this Agreement and has, by virtue of this wPolock77/cra/addendum.OIn.da.080699 Page 11 Agreement, acquired certain herein specified rights notwithstanding the fact that City is not a signor to this Agreement. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this day of ,1999. Signed, sealed and delivered in the presence of: Buyer: BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company By: Name: Title: SELLER: DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY By: Name: Title: w/block77/cra/addendum.O1n.da.080699 Page 12 EXHIBIT "A" GRIP PARKING w/block77/cra/addendum.O1n.da.080699 Page 13 EXHIBIT "B" ADDITIONAL PARCELS w/block77/cra/addendum.O1n.da.080699 Page 14 EXHIBIT "C" CITY PARCELS w/block77/cra/addendum.O1n.da.080699 Page 15 EXHIBIT "D" PARKING, MANAGEMENT, MAINTENANCE AND SECURITY AGREEMENT wPolock77/cra/addendum. Oln.da.080699 Page 16 EXHIBIT "E" WORTHING PARK IMPROVEMENTS AGREEMENT w/block77/cra/addendum. Oln.da,080699 Page 1 7 WORTHING PARK IMPROVEMENTS AGREEMENT THIS AGREEMENT is made this __ day of ,1999 by and between the CITY OF DELRAY BEACH, FLORIDA ("City") and Block 77 Development Group, L.C. ("Block 77"). WITNESSETH: WHEREAS, the City owns property within the City of Delray Beach, known as "Worthing Park" described on the survey attached hereto as Exhibit "A"(hereinafier referred to as the Subject Property and/or Worthing Park); and WHEREAS, the City in the Request for Proposal ("RFP") prepared by the Community Redevelopment Agency ("CRA"), has provided that Worthing Park may be improved by the respondent to the RFP; and WHEREAS, Block 77 was the successful applicant to the RFP and wishes to, in cooperation with and subject to the approval of the City design and install certain improvements and amenities to Worthing Park; and WHEREAS, this Agreement shall in no way be deemed to be a conveyance, transfer or an actual, constructive or in any way an abandonment by the City of Worthing Park; and, WHEREAS, the City reserves all rights to Worthing Park, and the improvements by Block 77 to Worthing Park shall not confer any property rights whatsoever in Worthing Park; and g:\s\w\block77~maintcnanceagt~naintenanceagt.Ole.da.081799 Page 1 of '1 '1 WHEREAS, the public will benefit from the beautification of and improvements to Worthing Park; and WHEREAS, the ability of Block 77 to make improvements to Worthing Park in coordination with, and as a compliment to Block 77's development of Block 77 (the "Project") was a substantial basis and consideration for Block 77's response to the RFP; and WHEREAS, this Agreement shall not become effective unless and until the last to occur of (i) Block 77 receives site plan and landscape plan approval from the City, (ii) Block 77 closes and receives title to the Block 77 parcel pursuant to that certain Contract for Sale and Purchase of Block 77 with the CRA; and WHEREAS, the parties hereto mutually recognize the need for entering into an Agreement designating and setting forth the responsibilities of each party. NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the mutual covenants and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Incorporation of recitals. The Parties hereby represent and warrant that the above recitals are accurate and correct and hereby incorporate them as if fully set forth in this Agreement. 2. Improvements to Worthing Park. Block 77 shall beautify and improve Worthing Park by the installation in Worthing Park of certain improvements which are to be contained in and made subject to the approval of a site plan for said improvements to Worthing Park (the "Improvements), which shall be incorporated herein as Exhibit "A" once the Site Plan is approved by the City. Block 77 shall perform all site plan conditions or as otherwise required by the City. The Improvements shall, at the time of installation, comply with all site, architectural and g:Xs\w\block77Xmaintenanceagt~naintenanceagt.01e.da.081799 Page 2 of 11 landscaping plans as approved by the City. Block 77 shall not construct, install or place any improvements, other than those Improvements authorized by the City of Delray Beach, on and about the Subject Property without the express written consent of the City. 3. Purchase and Installation of Improvements including Landscape and Hardseape. Block 77 shall be responsible for purchasing and installing all plant, tree, hedge or grass material and hardscape, which may include, but not be limited to, fountains, walkways, furniture, adequate and sufficient lighting, lamp posts, or any other material, improvements, hardscape, furniture or landscape as incorporated in Block 77's approved architectural, site and landscaping plans for Worthing Park. Subject to provisions for extension due to Force Majeure as herein below provided, Block 77 shall have Forty-eight (48) months from the issuance of the Worthing Park Improvements building permit, to complete the Improvements (the "Completion Date"). Block 77 stipulates that the completion of the Improvements are required in the Contract with the CRA and are to be completed prior to the issuance of a Certificate of Occupancy to the balance of the Project. Should Block 77 fail to substantially complete the Improvements by the Completion Date (subject however to extensions of the Completion Date as hereinafter provided), the City may, in its sole discretion, terminate this Agreement. The Completion Date shall be extended for delays occasioned by acts of God, catastrophe, inclement weather which reasonably interfere with the completion of construction, unforeseen physical conditions on the site, unavailability or shortages of materials or labor, labor disputes, governmental restrictions or other matters beyond the reasonable control of Block 77 (collectively "Force Majeure"). By the tenth (10th) Business Day of each month, Block 77 shall deliver or cause to be delivered to the City a list of the days during the preceding month as to which Block 77 believes the Force Majeure provisions apply and the reasons therefor. CITY shall within ten (10) Business Days after receipt of any such Page 3 of 11 list provide written notice to Block 77 as to whether CITY disputes that any of the days set forth on that list would give rise to an extension of time for the Block 77'S performance based upon Force Majeure. Any days claimed to be subject to the foregoing Force Majeure provision by Block 77 which are not so disputed by the City within said time period shall be deemed approved the City. In the event of a dispute as to whether a claim for delay is valid or otherwise in connection with this Agreement the parties shall endeavor to resolve and settle the issue by mediation using a mutually acceptable third-party mediator. Such mediator shall be appointed upon the written demand of either party. Upon such appointment, the mediation shall be held within fifteen (15) days at a mutually agreeable site in Palm Beach County, Florida. The fees and expenses of such mediator shall be borne equally by the parties hereto. In the event of the failure of the parties to settle the dispute by mediation, or to mutually agree to the appointment of a mediator, either party may bring the dispute for legal redress before the Circuit Court in and for Palm Beach County, Florida; whereupon the prevailing party in the action shall be entitled to reimbursement of its reasonable costs and attorneys' fee through and including appellate proceedings. 4. Dedication of Improvements. The Improvements made to Worthing Park by Block 77 shall constitute a gift to the City of Delray Beach and shall be retained by the City of Delray Beach for so long as Worthing Park shall be used for and devoted to the continued use as a public park. 5. Retention of Name. In consideration for the Improvements herein to be made by Block 77 to Worthing Park, and in consideration for and acknowledgment by the City that Block 77's project will incorporate the name "Worthing." The City agrees not to change the name of the subject property from its current name of Worthing Park without the prior written consent of Block 77. i} g:\s\w\block77Xmaintenanceagt\maintenanceagt. Ole.da.081799 Page 4 of 11 6. Maintenance of Worthing Park. The City of Delray Beach by its appropriate agency shall continue to maintain Worthing Park, including the landscape, hardscape and other Improvements designed, installed and erected by Block 77 in accordance with the City's standards, as amended from time to time for the maintenance of public parks. 7. City Owns Improvements. Upon installation of the Improvements and at all times thereafter, City shall own all the Improvements including landscaping and hardscape permanently installed as fixtures in Worthing Park by the Block 77. Block 77 may, however, from time to time or at the termination of this Agreement, remove its personalty, including decorative items or retail and/or commercial personalty, personally used in coordination with any permitted retail or commercial utilization of any portion of Worthing Park by Block 77, its tenants or licensees. 8. Use of Worthing Park by Public. Block 77 shall not, in any manner whatsoever, interfere with the public's use or enjoyment of Worthing Park other than incidental interference which may occur from the activities explicitly set forth in this Agreement or otherwise approved by the City in writing. Notwithstanding the foregoing, however, in consideration of Block 77's improvements to Worthing Park as herein provided and further in consideration of the situs of Worthing Park as a compliment to and inducement of Block 77's affirmative response to the RFP, City shall utilize its best efforts to prohibit utilization of Worthing Park in a manner or for purposes which would impose a hardship, endangerment, or impediment to Block 77's Project, tenants of the Project or their guests or invitees. In addition, the City shall, in its sole and reasonable discretion, require in individual instances, as deemed applicable by the City, that any licensing or permitting of Worthing Park to any third-party shall require the posting of security by bond or other collateralization deemed reasonable by the City for post-event clean-up of Worthing Park. i:, g:~s\w\block77Xmaintenanceagt\maintenanceagt. Ole.da.081799 Page 5 of 11 9. Use of Worthing Park by Block 77. It is anticipated that the Block 77 and/or its commercial and/or retail tenants, as applicable, shall use portions of Worthing Park for retail and/or commercial purposes subject to, but not limited to, kiosks, sidewalk cafes and outside dining adjacent to tenant restaurants in the commercial and/or non-residential portions of the Project. Notwithstanding the foregoing, all utilization of Worthing Park by Block 77 or its tenants which is otherwise in addition to those uses to which the public is entitled to must be approved by the City prior to the initiation of any said use. If Block 77 engages in any use, or installs any improvements, landscape or hardscape, beyond that approved by the City, then the City may at its option issue a written notice by certified letter that Block 77 is engaging in an unlawful use of the subject property. Block 77 shall have a period of thirty calendar days from the receipt of the certified letter to cease and desist from the improper use. If Block 77 fails to discontinue such use, the City may resort to any legal, equitable or other remedy available to it, including but not limited to termination of this Agreement. 10. Indemnification. Block 77 shall indemnify, defend and hold harmless the City, its officers, agents and employees from all suits, actions, claims and liability arising out of the Block 77's acts and omissions arising from the installation of Improvements (including the landscaping and hardscape as defined in this Agreement on the Worthing Park). 11. Insurance. Block 77 shall provide the City with a properly executed insurance certificate indicating that Block 77 has general liability insurance in an amount of $2,000,000.00 per occurrence and workers' compensation insurance in an amount of $100,000 per claim during the course of the installation of the Improvements and shall name the City as an additional insured for each policy. ','~ g:\s\w\block77~maintenanceagt\maintenanceagt. Ole.da.081799 Page 6 of 11 12. Entire Agreement. This Agreement shall constitute the entire Agreement of the parties with respect to the subject matter of it. All prior understandings and agreements between the parties with respect to such matters are merged into this Agreement, which alone fully and completely expresses their understanding. 13. Assignment or Transfer. This Agreement may not be assigned or transferred by the Block 77, in whole or part without the written consent of the City, which shall not be unreasonably withheld or denied, particularly in the instance of a conveyance by Block 77 of the Project or of a conveyance to an unrelated third-party of the majority interest in Block 77's entity. 14. Binds Successors. This Agreement shall be binding on the Parties, their respective heirs, successors, legal representatives, and permitted assigns and shall be recorded in the Public Records of Palm Beach County and shall run with the land. 15. Applicable Laws. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 16. No Beneficiary_. This agreement is not intended to create, nor be interpreted or construed in any way to create any third party beneficiary rights in any person not a party hereto. 17. Choice of Lawl Venue. All claims, disputes or suits arising out of this Agreement shall be interpreted under the laws of Florida with venue in Palm Beach County, Florida. 18. No Partnership. The parties do not in any way or for any purpose, become a partner each of the other in the conduct of the ownership or maintenance of Worthing Park nor does either party otherwise become a joint venturer or a member of a joint venture enterprise or partner of, or with, the other. 19. Authority to Bind. Each party by signing this Agreement warrants to each other that they have full authority to enter into this Agreement. This Agreement shall not be effective unless g:\s\w\block77\maintenanceagt~maintenanceagt. O I e.da.081799 Page 7 of 11 signed by the City's Mayor and City Clerk, and the seal of the City affixed and approved as to legal sufficiency and form by the City Attorney. 20. Waiver of Liabilit3'_. The failure of the Block 77 or the City to insist upon strict performance of any provisions of this Agreement, or failure to excuse any right, option or remedy shall not be construed as a waiver. No provision of this Agreement shall be deemed waived unless such waiver shall be in writing and signed by the party to be charged. No payment made or charges paid shall be deemed an accord and satisfaction. 21. Compliance with Laws. Block 77 shall comply with all local, state and federal laws. 22. Notices. All notices which are required or permitted hereunder must be in writing and shall be deemed to have been given, delivered or made, as the case may be, (i)when delivered by personal delivery, or (ii) three (3) business days after having been deposited in the United States mail, certified or registered mail, return receipt requested, with sufficient postage affixed and prepaid, or (iii) one (1) business day after having been deposited with an expedited, overnight courier service (such as, by way of example but not limitation, Federal Express) provided same was deposited at a time when it would normally be delivered on the next business day, otherwise on the second business day after having been so deposited or (iv) when received via telecopy (fax) provided that it is received not later than 2:00 P.M. (E.S.T.) at the location of the recipient on a business day, otherwise on the next business day thereafter; in each case addressed to the party to whom notice is intended to be given at the address set forth below: Block 77: Block 77 Development Group, L.C. 5000 Blue Lake Drive, Suite 150 Boca Raton, Florida 33431 Attn: Ned L. Siegel Telephone: (561) 998-9200 Facsimile: '(561) 998-7882 g:\s\w\block77~maintenanceagt\maintenaneeagt. Ole.da.081799 Page 8 of 11 With a copy to: Mandel, Weisman & Kirschner, P.A. 2101 Corporate Boulevard, N.W. Suite 300 Boca Raton, Florida Attn: Mitchell B. Kirschner, Esquire Telephone: (561) 989-0300 Facsimile: (561) 989-0304 City: City of Delray Beach 100 N.W. 1~ Avenue Delray Beach, FL 33444 Attn: City Manager Telephone: (561 ) 243-7000 Facsimile: (561) 243-3774 With a Copy to: City of Delray Beach 200 N.W. 1st Avenue Delray Beach, FL 33444 Attn: City Attorney Telephone: (561 ) 243-7091 Facsimile: (561) 278-4755 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on their behalf this ... day of ,199_. ATTEST: CITY OF DELRAY BEACH, FLORIDA By: City Clerk Jay Alperin Mayor Approved as to Form: City Attorney WITNESSES: BLOCK 77 DEVELOPMENT GROUP, L.C. (Print or Type Name) By: Name: Title: i' g:'ts\w\block77~maintenanceagt~maintenanceagt. Ole.da.081799 Page 9 of 11 (Print or Type Name) STATE OF FLORIDA COUNTY OF PALM BEACH 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, personally appeared as of BLOCK 77 DEVELOPMENT GROUP, L.C., who is [] personally known to me or [] produced proper identification, and who [] did [] did not take an oath and did execute the foregoing instrument before me. Witness my hand and official seal in the County and State last aforesaid this day of ,1999. NOTARY PUBLIC My commission expires: g:\s\w\block77Xmaintenanceagt\maintenanceagt. O I e.da.081799 Page 10 of 11 EXHIBIT "A" Worthing Park Improvements Survey 4' g:\s\w\block77~maintenanceagt~naintcnanceagt.01e.da.081799 Page 11 of 11 PARKING MANAGEMENT, MAINTENANCE AND SECURITY AGREEMENT THIS AGREEMENT is made this __ day of ,1999, by and between the CITY OF DELRAY BEACH, FLORIDA, ("CITY") and BLOCK 77 DEVELOPMENT GROUP, L.C. ("MANAGER"). WITNESSETH: WHEREAS, MANAGER has entered into a contract with the Community Redevelopment Agency of the City of Delray Beach dated (the "CRA Contract") for the sale, purchase and development of portions of Block 77, as more specifically defined in the CRA Contract, the terms of which are hereby incorporated by reference as if fully set forth herein (which Block 77 is sometimes hereinafter referred to as "Block 77" or the "Property"). WHEREAS, the CRA Contract provides for the acquisition by MANAGER of certain lands from the CRA, certain of which lands are currently owned by the CITY ("City Lands") which will be acquired by the CRA by deed and dedication; and WHEREAS, certain portions of the City Lands are currently used by the CITY for public parking, as hereinafter defined, and alleyways; and WHEREAS, the CRA Contract provides certain guidelines for the development by MANAGER of residential apartments, commercial and retail spaces (the "Project") upon the acquired portion of Block 77, the City Lands and other properties owned by MANAGER. WHEREAS, the CRA, pursuant to the CRA Contract has agreed to transfer the City Lands and additional lands owned by the CRA to the MANAGER upon certain conditions including as to Public Parking on the Project together with the management, maintenance and security thereof; and WHEREAS, the City Lands consist of those parcels distinguished in cross-grid on that certain survey prepared by O'Brien, Suiter & O'Brien, Inc., dated December 18, 1997 as revised through March 31, 1999 appended hereto as Exhibit "A" and incorporated herein; and WHEREAS, the MANAGER has agreed to provide 107 parking spaces for parking use by the public at a herein defined and described parking facility on the Project (the "Public Parking"); and WHEREAS, the Public Parking to be provided by MANAGER shall conform to all CITY codes applicable to public parking spaces; and WHEREAS, the MANAGER shall ensure that the Public Parking will be located on the Project and will be separated or buffered from private parking and the Public Parking is reasonably accessible and available to the public; and WHEREAS, the Public Parking to be provided by MANAGER shall be depicted on a parking design plan (the "Design Plan"). A Proposed Design Plan prepared by and acceptable to MANAGER is attached hereto and made a part hereof as Exhibit "B". Upon approval of the Proposed Design Plan, the final approved Design Plan shall be attached hereto and substituted for the proposed Design Plan as the "Approved Design Plan" as substituted Exhibit "B" and made a part hereof; and WHEREAS, the Proposed Design Plan, which, among other pertinent matters includes the location of and access to separate and buffered Public Parking from private parking for the residents, their guests and invitees ("Private Parking"), shall be subject to approval, as may be from time to time modified during the approval process, by the CRA and the CITY; and WHEREAS, the MANAGER shall convey to the CITY an exclusive and perpetual easement for the Public Parking, together with a non-exclusive perpetual easement to the CITY over such portions of Block 77 as reflected on the approved Design Plan, for the purpose of affording ingress and egress to Land from the Public Parking for the purposes hereinafter provided; and WHEREAS, the MANAGER will locate the Public Parking in a specifically designated portion of the Project to be constructed by MANAGER (the "Public Parking Facility") with the intention of locating all or substantially all, of the Public Parking on grade and/or below-grade levels of the Public Parking Facility; and WHEREAS, the MANAGER shall be responsible for the development, construction, maintenance and repair of the Public Parking Facility and the providing of certain security provisions for the Public Parking Facility and the management of the Public Parking Facility, all as hereinafter more specifically provided; and g:~S\vAblock77XparkingL4gt. O I s.da.O$2099 2 NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, the parties hereby agree as follows: 1. Recitals. The recitals set forth above are true and accurate, and are hereby incorporated as if fully set forth herein. 2. Definitions. Whenever used herein, the following terms shall have the meanings set forth: A. "Easement(s)" or "Easement Area" shall mean the exclusive perpetual easement granted to the CITY with respect to Public Parking Spaces and the non-exclusive perpetual easement(s) granted to the CITY for access, including but not limited to easements for access on driveways, sidewalks, pedestrian ways, alleys, stairwells, elevators, for utilities and drainage purposes, signage, and encroachments as more particularly to be described in an Exhibit to be attached hereto and the Temporary Easements described in Exhibit "C" during the temporary relocation of the Existing Public Parking during the pendency of the construction of the Project. B. "Existing Public Parking" shall mean the 63 parking spaces currently situated on the City Lands. C. "Private Parking Garage" shall mean an intended parking structure for residents and their guests of the Project and the private parking spaces to be available to the residents and their guests. D. "Public Parking Facility" shall include the entire portion of the Project designated by MANAGER for the Public Parking. E. "Public Parking Spaces" shall mean and include the parking spaces within the Public Parking Facility portion of the Project designated for the Pubic Parking. F. "Project" shall refer to the development of the Property, the CITY lands and certain other tracts of land owned by MANAGER which development shall include the residential units, retail and commercial space, the Public Parking Facility and private parking to be constructed by MANAGER in accordance with the CRA Contract. G. "Public Parking" shall mean the 107 Public Parking Spaces in the Public Parking Facility and shall include the Public Parking Facility in which the Public Parking shall be g:~s\w\block7Zparking~S, gt.01 s.da.082099 3 located, to be constructed by MANAGER in accordance with the Design Plan heretofore identified as Exhibit "B"; together with a non-exclusive license to an additional 40 parking spaces in the Public Parking Facility which MANAGER shall license to the CITY for CITY's use as Public Parking (the "License"), between the hours of 6:01 p.m. and 7:59 a.m., Mondays through Fridays and from 12:01 p.m. Saturdays through 7:59 a.m. Mondays, hereinafter referred to as the "GRIP Parking"; together With driveways, sidewalks, pedestrian ways, access ways, and alleys necessary to access the Public Parking which shall include but not be limited to all stairwells and/or elevators necessary to access the Public Parking being provided by the MANAGER. The easements and license to be granted to CITY pursuant to the provisions of this Agreement, shall cover all of the foregoing, and shall also include easements for utilities and drainage purposes, (any required relocation of which shall be at MANAGER'S expense) signage and encroachments serving the Public Parking. The Easements shall be defined in Exhibit "C" and as referred to in Paragraph 2. H. "Existing Public Parking Spaces" shall mean the sixty-three (63) spaces currently utilized by the CITY for public parking on a portion of the CITY lands which Existing Public Parking Spaces shall be relocated to the Public Parking Facility upon the completion of the Project. 3. Public Parking, Perpetual Easements and Licenses. A. Public Parking. MANAGER shall convey to the City Public Parking which consists of 107 Public Parking Spaces together with exclusive perpetual easements thereto and therefor and the 40 GRIP Parking Spaces licensed on a non-exclusive basis during the days and hours identified in Paragraph 2.Go, of this Agreement. MANAGER shall grant and convey to CITY exclusive, perpetual Easements in the form described in Exhibit "C" as attached hereto for the Public Parking spaces together with a non-exclusive perpetual Easement for access to the Public Parking spaces all as more specifically provided in Section 2. A hereof. The exclusive Easements, the non- exclusive License for the Public Parking Spaces as hereinabove allocated and the non-exclusive Easement for access to the Public Parking Spaces are sometimes hereinafter collectively referred to as the "Easements." MANAGER shall obtain at its expense a survey of the Public Parking and Easements, which shall provide accurate legal descriptions for the Easements to be included in g:~s\v6block77~parkingLa, gt.01 s.da.082099 4 Exhibit "C". MANAGER shall have granted and conveyed to the CITY, to be held in escrow by the CITY the Easements thirty (30) days prior to MANAGER submitting its application for site plan approval for the Project to the CITY. If the MANAGER fails to convey the easement(s) by the date provided, the CITY and MANAGER agree that the CITY shall not be required to process the MANAGER'S site plan application for the Project until the Easement(s) are received by the CITY in recordable form. In the event the site plan is not ultimately approved by the CITY the CITY shall release the Easements from escrow and return same to MANAGER and this Agreement shall be deemed null and void and each of the parties shall, as applicable, be subject to the terms and provisions of the CRA Contract. B. Easements. The recording of the Easements in the Public Records of Palm Beach County, Florida shall constitute MANAGER's irrevocable dedication, grant, bargain, sale and conveyance to CITY, its successors and assigns forever, such Easements, being over, along, through, in, above and under the Easement area to the extent reasonably necessary for the public's use of the Easements granted in this Agreement for the purposes herein set forth. C. MANAGER shall also convey to the CITY exclusive perpetual easement rights to install at CITY'S sole~ expense parking meters and maintenance and replacements at CITY'S sole expense for said parking meters or such other systems as from time to time utilized by the CITY for the collection of revenue or the regulation of the Public Parking Spaces at the CITY'S sole option, cost and expense, and for the purpose of the CITY'S collecting fees directly from the members of the public utilizing the Public Parking, together with the power in the CITY to enforce parking regulations and provide security and enforcement within the CITY'S standard police powers, including without limitation the issuance of citations and imposition of fines. Nothing contained in this Subsection C., shall constitute, incur or invoke a special duty or obligation of the CITY. D. MANAGER shall also convey to CITY non-exclusive perpetual easement rights for vehicular ingress and egress over the subject driveways within the Easement areas accessing the Public Parking Spaces within the Public Parking Facility and temporary parking and from the public rights-of-way. g:~s\w~block77~parking~Agt.01 s.da.082099 5 E. MANAGER shall also convey to CITY non-exclusive perpetual pedestrian easement rights of ingress and egress over and upon the subject driveways, elevators (as applicable), walkways, sidewalks, and concourses within the Easement Area for the purpose of maintaining pedestrian access to and from the permanent and temporary Public Parking Spaces identified above to the public rights-of-way. F. MANAGER shall also convey to CITY non-exclusive easement rights for access, use and enjoyment within the easement area of portions of the Public Parking improvements for the purpose of installing, servicing or maintaining elements of the Public Parking Spaces, including, without limitation, the rights to install, construct, maintain, operate, repair and reconstruct machinery or equipment reasonably necessary or incidental to the operation or servicing of the Public Parking Spaces, provided, however, nothing contained herein shall release MANAGER of the primary obligation of repair and maintenance of the Public Parking and Parking Garage. G. The Easement to repair, maintain and operate the Public Parking shall be exercised by the CITY as and when deemed appropriate by the CITY and the CITY shall use reasonable care not to interrupt, to the extent possible, the utilization of the GRIP Parking Spaces by GRIP. H. MANAGER shall also convey to CITY, as necessary, non-exclusive easements for drainage and utilities facilities (the term "utilities facilities" including without limitations, water, gas, electrical, telephone, telecommunication and other similar technologies existing now or at any time in the future) within the Easement area, including, without limitation, the rights, at the CITY'S sole expense and option to install, construct, maintain, operate, repair and reconstruct such drainage and utilities facilities as reasonably necessary for the beneficial use of the Public Parking provided that MANAGER shall be primarily responsible for the installation, construction, relocation and maintenance of the utilities facilities at its sole cost and expense and MANAGER'S exercise of such rights shall not unreasonably interfere with the CITY'S use of the Public Parking Spaces. I. MANAGER shall also convey to CITY non-exclusive easements for the placement, maintenance of directional and intbrmational signage reasonably necessary or incidental g:Xs\w~block?'hparking~Agt.0 ! s. da.082099 6 to the operation of the Public Parking Facility or the Temporary Public Parking. The fabrication construction and installation and maintenance of the said signs shall be at the sole cost of the CITY except, however in the instance where the MANAGER wishes to create its own signage for purposes of aesthetic conformance with the Project or such other reasonable objective of the MANAGER, in which instance the cost and maintenance of said signage shall be borne by the MANAGER. The CITY and MANAGER shall cooperate in the creation of a signage program for all directional or informational signage applicable to the Public Parking within the Public Parking Facility and the signage shall be approved by the CITY. J. Neither CITY nor anyone acting by, through or under the CITY including, without limitation, any contractors or subcontractors of the CITY shall unreasonably interfere with the construction and completion of the Public Parking Facility. K. The CITY recognizes that the Public Parking Facility has not been constructed as of the date of this Agreement. Thus, while it is anticipated that the Public Parking Facility and access ways will be in the locations conceptually depicted on the Design Plan, the Public Parking Facility and the various portions thereof and the Easements and/or License to the CITY are and shall be subject to easements for encroachments which now or hereafter exist, caused by settlement or movement of any improvements upon the land or caused by inaccuracies in building or rebuilding of such improvements which such easements for encroachments shall continue until such encroachments no longer exist. However, notwithstanding the immediately preceding sentence, the number of Public Parking Spaces to be provided by MANAGER shall not be reduced. L. MANAGER hereby covenants and warrants that the conveyance of the Easement(s) to the CITY shall be flee and clear of any liens and encumbrances except as shall be contained in the conveyance from the CITY to the CRA or from the CRA to the MANAGER and further except as may be specifically excepted in this Agreement. MANAGER'S mortgagee shall subordinate the lien of its mortgage to the Easement(s), if the mortgage would otherwise have been superior to the Easement. In conjunction therewith, MANAGER shall provide to the CITY, a title insurance policy in the amount of $1,500,000 insuring title to the Easement(s) as aforesaid. Notwithstanding anything to the contrary hereinbefore contained, the title insurance policy insuring g:\s\w~block77~parkingLAgt. O I s.da.082099 7 title to the Easements shall not reflect an exception for any lien except those liens, if any, to which MANAGER'S title from the CRA was made subject and taxes for the then current year not yet due and payable (though notation may be made for a mortgage provided that said mortgage is stated to be subordinate to the easement) and there shall be no exception for any encumbrance which would impair, in any material way, the CITY'S right to use and enjoy the easement(s) as contemplated in this Agreement. The Title Commitment shall be delivered to the CITY at least seven (7) days (or such shorter period as the City Manager approves) from the approval of the site plan application. Such Title Commitment must be in compliance with the requirements of this Agreement unless any noncompliance is waived by the City Manager. In its utilization of its herein granted Easements and such other rights and privileges reserved by or granted to the CITY hereunder, the CITY shall utilize its best efforts not to interfere with those parking spaces in the Parking Garage reserved for private (i.e., non-public parking), parking except as may be necessary in emergency situations or otherwise in the exercise by the CITY of its health and safety powers, including but not limited to its police powers. 4. Construction of Public Parking. A. Provided that MANAGER acquires title to Block 77 and the City Lands from the CRA, and further provided that the site plan application for the Project is approved, and further provided that MANAGER receives all requisite building permit(s) for construction of the Project, including the Public Parking Facility, MANAGER shall cause the Public Parking Facility to be constructed and the Public Parking Spaces to be made available. B. Building Permit. The CRA Contract specifically provides that Closing of the transaction under the CRA Contract shall not be consummated until such time as MANAGER (i.e. Block 77 Development Group, L.C.) receives site plan approval and permitting for all construction, including but not limited to all facets of the Project (i.e. the Public Parking Facility). MANAGER shall use its best faith efforts to obtain a building permit for the construction of the Public Parking following the execution of the CRA Contract. Subject to permissible extensions as provided in Section C herein, MANAGER shall complete construction of the Public Parking Facility not later than forty-eight (48) months from the date of the issuance of the building permit g:\s\w~blockT/XparkingXAgt.01 s.da.082099 8 (hereinafter the "Completion Date") subject to the extensions of the Completion Date as provided in Section C. C. The Completion Date shall be extended for delays occasioned by acts of God, catastrophe, inclement weather which reasonably interfere with the construction unforeseen physical conditions on the site, unavailability or shortages of materials or labor, labor disputes, governmental restrictions or other matters beyond the reasonable control of MANAGER (collectively "Force Majeure"). By the tenth (10') Business Day of each month, MANAGER shall deliver or cause to be delivered to the CITY a list of the days during the preceding month as to which MANAGER believes the Force Majeure provisions apply and the reasons therefor. CITY shall within ten (10) Business Days after receipt of any such list provide written notice to MANAGER as to whether CITY disputes that any of the days set forth on that list would give rise to an extension of time for the MANAGER'S performance based upon Force Majeure. Any days claimed to be subject to the foregoing Force Majeure provision by MANAGER which are not so disputed by the CITY within said time period shall be deemed approved the CITY. In the event of a dispute as to the entitlement of MANAGER to a Force Majeure extension the parties shall endeavor to settle the dispute by mediation using a mutually acceptable third party mediator. Such mediator shall be appointed upon the written demand of either party. Upon such appointment, the mediation shall be held within fifteen (15) days at a site selected by the mediator, in Palm Beach County, Florida. The fees and expenses of such mediator shall be borne equally by the parties hereto. If the Force Majeure extension entitlement or claim has not been resolved pursuant to the aforesaid mediation procedure within forty-five (45) days of the commencement of such procedure (which period may be extended by mutual agreement), or if any party shall not participate in such procedure, the controversy shall be brought at either party's initiation for adjudication in the Circuit Court in and for Palm Beach County, Florida. Whereupon the prevailing party in the action shall be entitled to all costs and reasonable attorneys' fees and costs through and including appellate proceedings. Failure to complete construction within the aforementioned periods of time absent extension by virtue of Force Majeure may be treated by CITY as a default of MANAGER. Prior to issuance of a building permit for the Public Building, MANAGER shall submit g:\s\w~blo~k77¥arking~Agt.01 s.da.082099 9 construction plans and specifications to the CITY for review. The plans must show that the fifty (50) year industry standard design criteria for a parking structure is met. Any costs for this review shall be the responsibility of the MANAGER, and MANAGER shall be responsible for all fees and costs associated with the planning, permitting and constructing of the Parking Building. D. Performance Bond. Prior to the commencement of the construction, MANAGER shall obtain and provide to CITY or have its contractor furnish the Material and Labor Payment and Performance Bond required to be delivered to the City and CRA ensuring their respective interests under this Agreement and CRA contract of even date, as required by the CRA contract to which City is not a signatory but is, by stipulation, a third party beneficiary ("Performance Bond") which shall be in an amount equal to One Hundred Ten (110%) Percent of the cost of the construction of the entire Project (which incorporates the Public Parking Facility and Public Parking). City acknowledges that is callable interest under the Performance Bond shall be the amount required to complete the Public Parking Facility at the time of a callable event of default. The Performance Bond must be issued by an insurance company or surety company on the U.S. Department of Treasury current approved list of acceptable sureties on Federal Bonds, as found in U.S. Department of the Treasury, Circular 570, as same may be updated from time to time (current list effective 7-1-93). The Performance Bond must be in accordance with Section 713.23, Florida Statutes, and must serve to guarantee completion of construction of the Public Parking in accordance with the approved Site Plan and payment of all costs incurred therein and shall furthermore include a dual obligee rider naming the CITY and MANAGER, as well as any MANAGER'S mortgagees, as dual obligees, each to their respective interests, CITY'S maximum interest being hereinabove defined. The form of the Performance Bond must be approved by the CITY. The CITY agrees that prior to calling the Performance Bond, the CITY shall give written notice to MANAGER, CRA and MANAGER'S mortgagees of CITY'S intention to do so and thirty (30) days opportunity to cure the matter(s) which would, in the CITY'S determination, otherwise give rise to the CITY'S right to call such Performance Bond which such matter(s) shall be specified in that notice. The amount of the Performance Bond shall be in the stipulated amount which, in the aggregate, would serve to ensure te completion of the Project, including, as to CITY'S interest the Public Parking Facility, but g:Ls\w\block77~parking~A gl.O I s.da.082099 lO in no less amount than the minimum required amount required by the MANAGER'S mortgagees. For purposes of this Section 4 the "stipulated amount" shall be the aggregate amount of constructing the Project (including the Public Parking Facility) as budgeted in conformance with the approved site plan and final construction plans. By the time the Performance Bond is required to be delivered to CITY, MANAGER shall also cause to be delivered to CITY, an agreement(s) of the architects and engineers who prepared the plans for the Public Parking that, if CITY calls the Performance Bond in accordance with the terms of this Agreement, CITY shall have the right to utilize said plans to construct the Public Parking on the Block 77 land. The MANAGER agrees to deliver or cause to be delivered the form of the surety bond to be provided and any other documentation requested by CITY reasonably necessary to show that MANAGER has the ability to meet the requirements of providing a surety bond as provided in this Agreement, at least four (4) days prior to the issuance of the building permit. CITY shall notify MANAGER in writing in the event the surety bond is not acceptable to CITY within ten (10) days of the CITY'S receipt of same specifying the defects. CITY'S approval of the surety bond will not be withheld unreasonably. The Performance Bond shall remain in effect until the Public Parking is completed and approved by the CITY. Upon completion and approval of the Public Parking, MANAGER shall deliver to the CITY a maintenance security in a form reasonably acceptable to the CITY for a term of two (2) years for the sum of One Hundred Thousand ($100,000.00) Dollars securing MANAGER'S obligation to remedy any potential defective construction work or faulty materials in the Public Parking Facility. Notwithstanding the immediately preceding sentence, the MANAGER'S obligation to correct any defective or faulty work or materials in the Public Parking Facility shall apply to the total cost of any such remediation and shall not be limited to the amount of the maintenance security. If MANAGER fails to complete construction within the time provided in Paragraph 3B of this Agreement, then CITY shall have the right to call upon the Performance Bond for completion of the Public Parking or portion. In the event the surety is inadequate to restore the Public Parking, CITY shall have the right to take such action necessary to complete the Facility and MANAGER shall be responsible for such costs and expenses associated thereto. In the event CITY must use its g:~s\w\block77¥arking'~Agt.01 s.da.082099 11 own funds to complete the Public Parking Facility, CITY may have all remedies including but not limited to lien rights for the costs and expenses incurred by the CITY to complete the Public Parking for the reasonable cost and expense thereof, which such claim of lien shall be effective and have over all mortgages, leases and encumbrances and shall be on a par with taxes. 5. Temporary Public Parking and Easements During Project Construction During the pendency of the construction of the Project, until such time as the Public Parking Facility is available for Public Parking as herein provided, MANAGER shall, in the interest of expediting completion of the Project and to optimize construction activities, substitute for the Existing Public Parking approximately fifty (50) parking spaces to be located in the Sun Trust Bank's parking lot located as shown in cross-grid on Exhibit "E" attached hereto and made a part hereof(the "Temporary Parking Spaces"). MANAGER shall enter into a lease with Sun Trust Bank for a term of not less than sixty (60) months, renewable for two (2) periods of two (2) additional months. MANAGER shall be solely responsible for all costs, including, as applicable, base rent, operating expenses and additional rent for the lease of the Temporary Parking Spaces. The lease shall provide that in the event of a default by MANAGER, that Sun Trust Bank shall provide the CITY with notice and opportunity to cure reasonably acceptable to the CITY. The lease of the Temporary Occupancy Spaces shall specifically provide that in the event MANAGER shall commit an Event of Default under the lease that CITY may cure said default and become the prime tenant under the lease or, at its sole option, the CITY may cancel the lease and have no further obligation under the lease and pursue all of CITY'S here;.n remedies. However, notwithstanding the foregoing, if MANAGER determines that neither the length of the construction period nor the administration of resources for construction will be unduly prejudiced by attempting to provide continuous Public Parking on the grounds of the Project during the course of construction, then, and in that event, MANAGER shall attempt to schedule and stage the construction of the Project so as to permit the CITY to maintain the Existing Public Parking at its present location whereupon MANAGER shall first construct the Private Parking Garage in order for the Existing Public Parking to be temporarily relocated to the Private Parking Garage upon the receipt of a permanent, temporary or partial Certificate of Occupancy for the Private Parking Garage. In the event MANAGER elects the g:~s\w\block77~parkin g~. gL 01 s.da.O 82099 12 foregoing option, MANAGER shall, at all times during the construction of the Project, leave unobstructed the Private Parking Garage as well as all ingress and egress thereto. At such time as the Public Parking Facility has received a permanent, temporary or partial Certificate of Occupancy to accommodate the Public Parking, the Public Parking Facility thereupon shall be utilized for Public Parking during the pendency of construction and continuing thereafter. In the event of the temporary relocation of the Existing Public Parking to the Private Parking Garage pending the availability of the Public Parking Facility, MANAGER shall convey to CITY a Temporary Exclusive Easement over such portions of Block 77, as are necessary for utilization of and access to and from the Temporary Public Parking in the Private Parking Garage until the availability of the Public Parking Facility. The Temporary Easement upon Block 77 shall be sufficient to provide a replacement of the Existing Public Parking Spaces. Notwithstanding the foregoing, if the Public Parking Facility, as defined in this Agreement, is not completed by the Completion Date as defined in this Agreement, the CITY shall retain an exclusive Easement in the Parking Spaces in the Private Parking Garage and a non-exclusive Easement on Block 77 for ingress and egress to the Private Parking Garage containing the Public Parking Facility is completed. MANAGER shall provide all maintenance and security in the Private Parking Garage used by the CITY for Public Parking in accordance with the terms set forth herein for the Public Parking Facility in addition to all other remedies available pursuant to this Agreement and in law or equity. 6. Term of Management and Maintenance Agreement. MANAGER, its successors- in-interest from time to time or its permitted assigns, as hereinafter provided, shall provide for the management and maintenance and security (to the extent herein required) of the Public Parking Facility and access Easement(s) thereto pursuant to the terms of this Agreement which or a memorandum of which shall be recorded in the Public Records of Palm Beach County and run with the land. 7. Additional Rights and Responsibilities of MANAGER. A. Maintenance and Repair. Except as otherwise specifically provided, MANAGER shall be responsible for all maintenance costs and fees or assessments attributable to MANAGER'S ownership of the Public Parking Facility and operation of the Public Parking Spaces g:\s\w\block77¥arkingLa, gL 01 s.da.O 82099 13 and shall not, except in the instance of special requests or requirements of the CITY not otherwise anticipated in this Agreement, not levy any costs, fees or assessments against the CITY. Notwithstanding the foregoing however, MANAGER shall not be responsible for any costs, fees, or liabilities related to or arising from CITY'S machinery utilized in the assessing and collection of parking fees, signage, maintenance or replacing thereof. Except as may be otherwise specifically provided for herein, during the term, MANAGER shall be responsible for all costs, expenses in connection with the Public Parking Facility, including, without limitation, construction, reconstruction, operation, repair and maintenance of the Public Parking as provided in this Agreement. MANAGER shall be responsible for maintaining in good order the Public Parking and entrances and exits with respect thereto including, without limitation, the area which includes the Public Parking Facility and access Easements thereto. Such maintenance by MANAGER shall include, without limitation, payment for utilities the relocation thereof, necessary restriping, resealing, repair and replacement of broken bumper stops, and general maintenance such as, without limitation, sweeping and trash collection. Notwithstanding the foregoing, in connection with MANAGER'S obligation to maintain the Public Parking Facility and Public Parking Spaces, MANAGER shall have the right and obligation to engage in needed maintenance, repair work, construction and reconstruction as the case may be and, in connection therewith, MANAGER shall have the right upon not less than Fifteen (15) days prior advance notice to the CITY so as to cooperatively arrange for mutually agreed upon days and times, except, however in the instances of emergencies, to close all or such portions of the Public Parking Facility as may be necessary or appropriate to accomplish the foregoing. During such periods of maintenance, repair work, construction and reconstruction; provided, however, that MANAGER shall use good faith reasonable efforts to minimize the period, area and timing of such closure and to minimize such disruption to the normal operation of the Public Parking. MANAGER shall not be liable for any closures of all or any portion of the Public Parking Facility in connection with any such work to be performed by, or on behalf of MANAGER provided MANAGER is using good faith reasonable efforts to minimize such closure, and secures the written consent of the CITY prior to closure. B. Determination as to Satisfactory Maintenance and Repair. If the CITY g:~s\w\block77¥arking~Agt.01 s.da.082099 14 determines that MANAGER is not properly maintaining the Public Parking and keeping same in good repair or otherwise not operating the Public Parking Spaces and the ancillary improvements attendant thereto, as required by this Agreement, the City Manager shall give the MANAGER written notice thereof specifying the deficiencies and, as available the City Manager's proposal for appropriate cure. If the MANAGER has not cured the deficiencies so specified within fifteen (15) days from the MANAGER'S receipt of such notice or such longer time as may be reasonably required if the deficiencies are not reasonably susceptible of cure within such fifteen (15) days provided MANAGER commenced such cure within such fifteen (15) day period and thereafter diligently prosecutes same to completion, the CITY shall have the right, but not the obligation, to maintain, repair, replace, reconstruct, install, construct, and operate (collectively "Repair" or "Repairs"). those portions of the Parking Building and the components thereof necessary for the beneficial use and enjoyment of the Public Parking necessary to cure the deficiency and MANAGER shall be responsible for all costs and expenses incurred by the CITY, including but not limited to the securing of substitute parking, which shall constitute a first lien on the entire Public Parking Facility which may be foreclosed according to law or the CITY may seek any other legal available remedy to collect the costs and expenses. MANAGER shall be responsible for all collection costs incurred by the CITY. C. Damage or Destruction of the Public Parking Facility. If during the term of this Agreement the Public Parking or any portion of the Public Parking Facility affecting the use of the Public Parking shall be destroyed or damaged in whole or in part by fire or any other cause, other than the negligence of the CITY or its agents, MANAGER shall give to CITY immediate notice thereof, and MANAGER shall seek the necessary permits from CITY, to repair, replace and rebuild the same or cause the same to be repaired, replaced or rebuilt as nearly as possible to their value and condition immediately prior to such damage or destruction and shall commence and diligently pursue such repair or replacement. All such repair, restructure and replacement shall be paid solely by MANAGER. If, however, MANAGER, or the City Manager, as loss payee, receives insurance proceeds payable to or for the benefit of MANAGER or the Public Parking Facility, MANAGER shall apply such insurance proceeds towards the repair and replacement and shall pay g:\s\w\blockT~parkingL~gt.01 s.da.082099 1 5 any shortfall of insurance proceeds for the repair or replacement. However, nothing herein shall constitute a waiver of subrogation rights of MANAGER'S insurer in the event the damage or destruction was caused by a party other than MANAGER or its agents. D. ~. In cooperation with the MANAGER providing convenient access to the Public Parking, the CITY shall provide appropriate signage to the Public Parking. The CITY shall maintain, repair and replace the signage relating to the Public Parking, if the CITY reasonably determines the signage is in such condition as to not adequately inform the public or the aesthetics thereof have deteriorated and is not in keeping with the aesthetics required by the CITY. However, in the event the MANAGER determines that, in accordance with the MANAGER'S Signage Program, promulgated and adopted in cooperation with the CITY, the MANAGER prefers to utilize its own style or form of signage (which shall in all events serve the same purposes as those signs made available by the CITY), MANAGER shall be responsible for the payment of the upgraded signage and the maintenance of same. E. Identification. MANAGER shall provide for a sufficient identification of the Public Parking. F. Location. MANAGER shall make a best faith effort to locate the Public Parking Spaces where possible at grade and/or the highest below of the Public Parking Facility or as near as possible thereto. G. Striping. MANAGER shall provide striping for all Public Parking Spaces in the Public Parking Facility where, in the opinion of the CITY, curb stops are appropriate, and MANAGER shall maintain the striping and curb stops by repainting and restriping as determined needed by MANAGER or, at the request of CITY not less than once every five (5) years. H. Cracks and Potholes. MANAGER shall pave all parking spaces and access thereto and maintain said paving and access in a condition as free of cracks and potholes as are reasonable possible in light of normal settlement cracks of not more than one-quarter (1/4) inch except as otherwise may be provided by code, as applicable. Nothing herein shall constitute an acceptance by CITY of any liability in the event of any claim for accident or injury relating to the existence of cracks and/or potholes in concrete otherwise within the acceptable parameters of this g:~s\w\block 77XparkingLA gL 01 s.da. O82099 1 6 Subsection H. I. Litter and Debris. Additional maintenance responsibilities of MANAGER include, but shall not be limited to, keeping the Public Parking and access easements free of litter and debris or refuse, free of standing water or overhead leaks in the parking garage. All litter, debris or refuse removal from the Public Parking or access easements and roadways shall be disposed of in an appropriate waste disposal facility in a timely manner. J. Deterioration. MANAGER shall be responsible to repair, replace and repaint, if necessary, any part of the Public Parking Facility, and accesses thereto, including but not limited to structural elements, if in the opinion of the CITY same have deteriorated to such an extent that there is a negative impact on the public aesthetics, or public safety or enjoyment and use of the Public Parking. MANAGER shall immediately remove any graffiti on the Public Parking. K. Impediments. MANAGER shall keep all Public Parking and access easements thereto free of any obstacles or impediments that may prohibit or impede the Publics' transversing or access to Public Parking. L. No Fees. MANAGER shall not charge any fees or require any permits to use the Public Parking. M. Insurance. MANAGER shall provide insurance as set forth in Exhibit "D." N. Availabili _ty to Public. The Public Parking shall be available for use by the public for vehicle parking purposes, in accordance with the hours prescribed by the CITY which from time to time CITY may, but shall not be obligated to take into consideration any security program in place for the Parking Garage. MANAGER shall not reserve or otherwise utilize any Public Parking for private purposes without the prior written consent of the CITY. O. Other Improvements. MANAGER shall not construct or place any improvements on the Public Parking or accesses and access easements not related or ancillary or not benefitting the Public Parking or the easements thereto without the express written consent of the CITY. P. Lighting. MANAGER shall provide adequate and sufficient lighting of all Public Parking Spaces and access easements thereto as is reasonably determined to be required by g:~s\w\block77Xparking~Agt.01 s.da.082099 17 the CITY in its sole discretion. MANAGER shall repair and replace all lights and lighting fixtures so that the lighting is operational at all times. Q. Security. MANAGER and/or MANAGER's building or Public Parking Facility manager shall contract with a licensed security company or employ contract labor from the CITY'S police department for regular monitoring of the Public Parking, together with access to Public Parking, in support and coordination with the CITY'S regular police department's enforcement. The security contracted for by MANAGER pursuant to the provisions of this Section is intended to supplement the security of the Public Parking and is not intended in any manner to supercede any standard security enforcement, if any, provided by the City of Delray Beach Police Department as relates to the Public Parking. R. Other Responsibilities. Except as specifically provided herein, MANAGER shall be responsible for all other repairs, replacement, maintenance, janitorial, housekeeping or any other function not expressly reserved to the CITY. S. Taxes, Utilities and Janitorial Services. MANAGER shall be liable for the payment of all real and personal property taxes, and any other taxes and or assessments assessed against any of the property located on Block 77, including but not limited to the property described in Exhibit "B" and shall pay all costs incurred as to the Block 77 property for trash, garbage or debris removal and water, sewer, gas, electricity, telephone and all other utilities and for the Temporary Public Parking. This Section S., notwithstanding, nothing herein shall prevent MANAGER from appealing any tax or other imposition assessed against the Public Parking Facility or Public Parking Spaces provided, however the appeal should be taken in such a manner so as to prevent the attachment of any lien of said assessment against the property and, in the event that the appeal should be unsuccessful, MANAGER shall immediately pay the full amount of any assessment. T. Compliance with Laws. MANAGER shall comply with all local, state and federal laws and shall not discriminate based on age, sex, marital status, race, religion, handicap and shall not violate the Americans with Disabilities Act in the construction and management of the Public Parking. U. Noise and Disturbances. MANAGER shall take all appropriate measures g:~s\w\block77~parking~A gr.01 s.da.082099 18 to assure that there are no unreasonable noises or disturbances that interfere with the public's use of the Public Parking. V. Fire Hazards. MANAGER shall be responsible to ensure that any activities or improvements under MANAGER'S control, do not cause or contribute to an increased fire hazard on the premises and will comply with applicable ordinances, laws, rules and regulations governing fire safety and directives of the Fire Department and/or insurance policy on the Parking Building or any part thereof. Likewise, CITY shall be responsible to ensure that its machinery, installations or replacement for parking fee assessment, collection or any such other machinery or installations of the CITY do not cause or contribute to an increased fire hazard on the Premises and will comply. W. Mechanics Liens. MANAGER shall immediately discharge by payment or removal by bond any mechanics liens for materials or labor claimed to have been furnished on MANAGER'S behalf. X. Subordination. MANAGER shall not subordinate the CITY'S easements to any lease, mortgage, or encumbrance which may now or later affect same and no foreclosure action shall be maintained that shall adversely affect CITY'S easements. Y. Insurance. MANAGER shall at all times maintain in good standing all policies and coverage as provided in Exhibit "D" attached hereto and made a part hereof. 8. CITY'S Rights and Responsibilities. A. Hours. The CITY has the sole right to set the hours of use of Public Parking. B. Fees. The CITY has the sole right to charge fees by meters, permits, or other systems deemed appropriate by the CITY fi.om time to time for Public Parking directly to the public using the parking but not, however, to the MANAGER. C. Right of Entry. The CITY, its officers, agents and employees shall have the right to come on to the premises during reasonable hours and times in order to work with the MANAGER and its officers, agents and employees to ensure compliance with this Agreement and shall at all times have access to the Public Parking. 9. Waiver of Liability. The failure of the MANAGER or the CITY to insist upon strict performance of any provisions of this Agreement, or failure to excuse any right option or g:Ls\v6block77XparkingLS, gt.01 s.da.082099 19 remedy shall not be construed as a waiver. No provision of this Agreement shall be deemed waived unless such waiver shall be in writing and signed by the party to be charged. No payment made or charges paid shall be deemed an accord and satisfaction. 10. Indemnification. MANAGER shall protect, defend, indemnify and hold harmless the CITY, its officers, employees and agents from and against any and all lawsuits, penalties, damages, settlements, judgments, decrees, costs, charges, claims, demands, liens of any kind and other expenses including liabilities of every kind arising in connection with or arising out of the location, improvement, construction, operation, control, maintenance and use of the Public Parking or private parking, including the Easements or the breach or default by MANAGER of any covenant or provision of this Agreement except for, but such exception shall only be to the extent of, any occurrence arising, in whole or in part, out of or resulting from torts or negligence of the CITY, its officers, agents and employees or anyone acting by, through or under any of them subject to the limitations of Florida Statute {}768.28 and the doctrine of sovereign immunity. Without limiting the foregoing, any and all such claims, suits, demands or causes of action relating to personal injury, death, damage to property, defects in construction, rehabilitation or restoration of the Public Parking or the Private Parking, or any actual or alleged violation of any applicable statute, ordinance, administrative order rule or regulation or decree of any court, by MANAGER is included in the indemnity. MANAGER further agrees to investigate, handle, respond to, provide defense for, and defend any such claims at its sole expense and agrees to bear all other costs and expenses related thereto even if the claim is groundless, false or fraudulent and if called upon by the CITY, MANAGER shall assume and defend not only itself but also the CITY in connection with any suit or cause of action, and any such defense shall be at no cost or expense whatsoever to CITY. 11. Partial Invalidity. If for any reason any provision of this Agreement shall be declared invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect. 12. Assignment. MANAGER may assign this Agreement, or any interest herein upon the following terms and conditions: A. The proposed assignee shall be: g:~s\w\block77Xparking~.gt.O 1 s.da.082099 2O (i) a successor-in-interest to MANAGER; or (ii) a permitted assignee or vendee under the CRA Contract; or (iii) a professionally Florida licensed and insured property manager; or (iv) an affiliate of MANAGER as defined in this Section 12; or (v) a financing joint venturer receiving less than a majority of interest in the venture. B. The proposed assignee shall have or provide experience and acumen in the management of a Public Parking Facility. C . The proposed assignee shall have a net worth of not less than MANAGER as of the execution of this Agreement. D. The proposed assignee shall have a good professional representation in the community. E. The proposed assignee shall be prepared to, and following the assignment shall execute an Addendum to this Agreement with such other documentation as the CITY deems appropriate by which the assignee shall reaffirm this Agreement and represent and warrant its intention and ability to abide by all conditions, obligations and responsibilities of a "Manager" hereunder, which Addendum or Memorandum to this Agreement may be recorded in the Public records of Palm Beach County, Florida by the CITY. F. Any intention to assign this Agreement in accordance with the foregoing conditions shall be delivered to the CITY not less than thirty (30) days prior notice of the proposed Assignment. The CITY may reject any assignment that the CITY reasonably determines does not meet the terms and conditions of an assignment hereinabove provided, in which instance the CITY shall provide to MANAGER written advice of the terms and/or conditions not complied with within ten (10) days of CITY'S rejection of the proposed assignee. G. For purposes of this Section 12 "affiliate" shall mean: (i) any person or entity, directly or indirectly owning, controlling or holding power to vote ten (10%) percent or more of the outstanding voting rights of MANAGER; (ii) any person or entity ten (10%) percent or more of whose outstanding g:~s\w\block7 ~parking~,A gl.0 i s.da.082099 21 voting shares are directly or indirectly owned, controlled or held with power to vote by MANAGER; (iii) any person or entity directly or indirectly controlling, controlled by or under common control with MANAGER; (iv) as to any corporation, any executive officer or director of the corporation in question or any corporation directly or indirectly controlling MANAGER; (v) any person or entity as a "member" of MANAGER owning or controlling ten (10%) percent or more of either the capital or profit interest in MANAGER. 13. Default/Termination. It is understood that the remedies the defaults herein enumerated in this Section shall be non-exclusive and cumulative, and the exercise of any one remedy shall not be to the exclusion of any other remedy provided for herein and as otherwise allowed by law. A. Failed Payment. In the event MANAGER shall fail to make payment to CITY of any cost or fee which has become a lien on the Public Parking as provided in this Agreement, and such default in payment shall continue for a period of thirty (30) days after notice by CITY unless however, MANAGER takes recourse in any available appeal of any such cost or fee; or B. Insurance. MANAGER shall fail to provide insurance as provided in this Agreement for any consecutive thirty (30) day period absent an instance of impossibility such as a moratorium on the issuance of insurance for the requested exposure; or C. Taxes, Etc.. MANAGER shall fail to pay any tax, assessment, rate or charge or other governmental imposition or any other charge or lien against the Public Parking Facility which MANAGER is required to pay prior to said failure of payment shall allow for the imposition ora lien upon the property. Nothing herein shall however prohibit the filing of an appeal against any such tax, assessment rate or charge by the MANAGER provided, however that any such appeal shall be filed in an manner so as to protect the Public Parking space against a lien for taxes on a showing by MANAGER to the CITY that in the event of the failure of the appeal, the MANAGER has adequate segregated funding for the payment of all such taxes or assessments; or D. Obstructions. MANAGER obstructs public use of the Public Parking for g:~s\w\block77~parking~Agt.01 s.da.082099 22 a period in excess of twenty-four (24) continuous hours or for more than ten (10) business days thereof within any calendar year without the CITY'S prior approval, unless such closure is caused by an emergency situation or unless such closure is necessary to conduct maintenance, repairs or replacement in accordance with this Agreement. If in the opinion of a qualified professional it is determined that the Public Parking is unsafe due to conditions as shall be stated in writing by said qualified professional and if it is determined that the conditions so rendering the Public Parking unsafe resulted from MANAGER'S failure to maintain, repair or replace any improvements in accordance with the terms of this Agreement and as a result CITY determines that the Public Parking must be closed to the public until said repairs, maintenance or replacements have been made, such closure shall be considered an obstruction by MANAGER of public passage as provided herein. In the event of such obstruction for a period in excess of twenty-four (24) continuous hours or for more than ten (10) business days within any calendar year, the CITY shall have the right to do that which is reasonably necessary to cause the removal of such obstruction and, in addition, the MANAGER shall pay to CITY, for each day such obstruction exceeds twenty-four (24) continuous hours or more than ten (10) business days thereof in any calendar year, additional out-of-pocket expenses directly or indirectly incurred for each day of such excess period the obstruction exists, in addition to any other remedy the CITY may have in law or equity including but not limited to any civil action for damages the CITY would otherwise have against MANAGER; or E. If MANAGER shall default in complying with any other agreement, term, covenant or condition of this Agreement and such default in compliance shall continue for a period of thirty (30) days after notice by CITY specifying the claimed default, and MANAGER shall not, in good faith, have commenced within said thirty (30) day period, to remedy such default and diligently and continuously proceed therewith; then, if any of the above-referenced events should occur and remain uncured for six (6) months, CITY may either (i) serve a written fifteen (15) day notice of cancellation and termination of this Agreement, and upon the expiration of fifteen (15) days following such notice, this Agreement shall terminate except with respect to the easement(s) and CITY'S rights to foreclose on any liens on the Public Parking and to pursue any other equitable or legal remedy or CITY'S rights to take possession of the Public Parking, or (ii) enter upon the g:Xs\wXblockT~parking~Agt.01 s.da.082099 23 parking facility and make such repairs as is reasonably required; all costs incurred by the CITY constitutes a forecloseable first lien on a parity with taxes which may be foreclosed according to law or the CITY may pursue any other legal or equitable remedy. In addition to the foregoing, the CITY may, at its option, following an event of default notwithstanding timely cure of same, to require the MANAGER to deliver into the escrow of the CITY or its nominee or designee reasonably estimated funding for repairs maintenance or upkeep, in advance for the next six (6) months maintenance and repair of the Public Parking. F. Receivership or Assignment for Benefit of Creditors; Bankruptcy; Abandonment; Failure to Maintain or Repair. Either the appointment of a receiver to take possession of all or part of the assets of MANAGER or a general assignment by MANAGER for the benefit of creditors or any action taken or suffered by MANAGER under any insolvency or bankruptcy act shall constitute a breach of this agreement. If MANAGER shall be adjudicated bankrupt or insolvent or take the benefit of any federal reorganization or composition proceeding, make a general assignment, or take the benefit of any insolvency law; or in the event of abandonment or desertion; or if this Management Agreement be transferred or pass to or devolve upon any persons, firms, partnerships or corporation other than MANAGER by operation of law or otherwise, then MANAGER shall constitute a default under this Agreement immediately availing CITY of all remedies herein reserved or otherwise available to the CITY. G. Non-Disturbance. As to each mortgagee of the Public Parking Facility and the Public Parking Spaces, the MANAGER will advise any of said mortgagees for the need of and shall provide for the delivery to the CITY of a Non-Disturbance Agreement from any such mortgagee agreeing that it or they will not disturb the Public Parking under this Agreement upon any judicial or non-judicial foreclosure of the Parking Garage or the Public Parking Spaces or upon acquiring title to the Parking Garage by deed-in-lieu of foreclosure. 14. Insurance/Bond Proceeds. All insurance policies and surety bonds which relate solely to the Public Parking and all insurance moneys or surety monies relating to the Public Parking shall be utilized by the MANAGER for the repair replacement and reconstruction of the Public Parking or any portion thereof. To the extent MANAGER shall fail to utilize the proceeds of the g:~s\w\block77~parkin§~.gt.01 s.da.082099 24 insurance monies for the heretofore enumerated purposes, such funds shall be paid to the CITY for said purposes. 15. Records. The MANAGER shall keep books and records with respect to costs and expenses of operating, maintaining, repairing and securing the Public Parking for a period of three (3) years after same is incurred and shall make the books and records available to the CITY for inspection, review and audit, at the CITY'S sole expense, at reasonable times during normal business hours and upon not less than thirty (30) days prior written notice. 16. Binding Effect on Successors and Assigns. The covenants and conditions contained within this agreement subject to the provision as to assignment, shall apply to the legal heirs, successors, legal representatives and permitted assigns of all parties to this agreement. This Agreement shall be recorded in the Public Records of Palm Beach County pursuant to Paragraph 22. 17. Estoppel Certificate~ Further Assurances. Each party shall deliver to the other upon request within seven (7) business days, a writing certifying that this Agreement (and as modified) is in full force and effect, that the requesting party is not in default or if in default the nature of the default. The parties shall also from time to time provide to each other documents and instruments necessary to carry out the interest of this agreement. 18. Authority to Bind. Each party by signing this Agreement warrants to the other that they have full authority to enter into this agreement. This Agreement shall not be effective unless signed by the CITY'S Mayor and City Clerk, and the seal of the CITY affixed and approved as to legal sufficiency and form by the City Attorney. 19. Notices. All notices which are required or permitted hereunder must be in writing and shall be deemed to have been given, delivered or made, as the case may be, (I) when delivered by personal delivery or (ii) three (3) business days after having been deposited in the United States mail, certified or registered mail, return receipt requested, with sufficient postage affixed and prepaid, or (iii) one (1) business day after having been deposited with an expedited, overnight courier service (such as, by way of example but not limitation, Federal Express) provided same was deposited at a time when it would normally be delivered on the next business day, otherwise on the second business day after having been so deposited or (iv) when received via telecopy (fax) provided g:~s\w~block77~parking~Agt.01 s.da.082099 25 that is received not later than 2:00 P.M. (local time) at the location of the recipient on a business day, otherwise on the next business day thereafter; in each case addressed to the party to whom notice is intended to be given at the address set forth below: MANAGER: Block 77 Development Group, LC 5000 Blue Lake Drive, Suite 150 Boca Raton, Florida 33431 Attn: Ned L. Siegel, Co-Managing Partner Telephone: (561) 998-9200 Facsimile: (561) 998-7882 With a copy to: Mandel, Weisman & Kirschner, P.A. 2101 Corporate Boulevard, Suite 300 Boca Raton, Florida 33431 Attn: Mitchell B. Kirschner, Esq. Telephone: (561) 989-0300 Facsimile: (561) 989-0304 City: City of Delray Beach 100 N.W. 1 st Avenue Delray Beach, FL 33444 Attn: City Manager Telephone: (561) 243-7000 Facsimile: (561) With a copy to: City of Delray Beach 200 N.W. 1st Avenue Delray Beach, FL 33444 Attn: City Attorney Telephone: (561) 243-7091 Facsimile: (561) 278-4755 Any party may change the address to which its notices are sent by giving the other party five (5) business days prior written notice of any such change in the manner provided in this paragraph, but notice of change of address is effective only upon receipt. 19. CRA Agreement. Although not a signatory to this Agreement, the parties hereto acknowledge that the CRA is a third-party beneficiary of certain provisions of this Agreement. 20. Choice of Lawl Venue. All claims, disputes or suits arising out of this agreement shall be interpreted under the laws of Florida with venue in Palm Beach County, Florida. g:~w\block77~pa~kin§\Agt.01 $.da.052099 26 21. No Partnership. The parties do not in any way or for any purpose, become a partner of the other in the conduct of the ownership or operation of the Public Parking Facility or Public Parking nor does either party otherwise become a joint venturer or a member of a joint venture enterprise or partner of, or with, the other. 22. No Third Party Beneficiary_. This Agreement is not intended to create, nor be interpreted or construed in any way to create any third party beneficiary rights in any person not a party hereto unless otherwise expressly provided herein. 23. Recordation. This Agreement or a memorandums of this Agreement may be recorded in the Public Records of Palm Beach County at CITY'S expense upon the effective date and upon MANAGER'S receipt of the recorded Agreement, CITY shall forward a copy of the recorded Agreement to MANAGER. 24. Non-Discrimination. As it relates to this Agreement, the parties to this Agreement shall not discriminate in employment or the maintenance, operation or construction contemplated in this Agreement or by reason of race, religion, creed, national origin, sex, handicap or disability. 25. Entire Agreementl Modificationsl Conflict. This Agreement, along with documents incorporated herein together with all insurance documents required represents the entire Agreement. This Agreement and incorporations may not be changed other than in writing and signed by the parties. If there is an express conflict between this Agreement and the documents referenced herein, this Agreement shall control. g:~s\w\block77~parking~Agt.01 s.da.082099 27 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their proper officials on the day and year first above written. ATTEST: CITY OF DELRAY BEACH, FLORIDA CITY CLERK By: Printed Name: JAY ALPERIN, Mayor Approved as to Form: CITY ATTORNEY Printed Name: ATTEST: BLOCK 77 DEVELOPMENT GROUP, L.C. By:. Printed Name: Print Name: Title: STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ~ day of ., 1999 by (name of officer or agent, title of officer or agent) of (name of corporation acknowledging), a (state or place of incorporation) corporation, on behalf of the corporation. He/She is personally known to me or has produced (type of identification) as identification and did (did not) take an oath. Notary Public My Commission Expires: g:~s\w~block77¥arking~Agt.01 s.da.082099 28 STATE OF FLORIDA CO UNTY OF PA LM BEA CH The foregoing instrument was acknowledged before me this ~ day of , 1999 by (name of officer or agent, title of officer or agent) of (name of limited liability company acknowledging), a (state or place of organization) limited liability company, on behalf of the limited liability company. He/She is personally known to me or has produced (type of identification) as identification and did (did not) take an oath. Notary Public My Commission Expires: g:~s\w~block77~parking~Agt.01 s.da.082099 29 EXHIBIT "A" The Lands g:~\w~block7~parkingL~.OIs.da.082099 3O EXHIBIT "B" Design Plan g:\s\w~block77~parkingLa, gt.O I s.da. O82099 3 ] EXHIBIT "C" Easements g:~s\w~block77XparkingXAgt.01 s.da.082099 3 2 EXHIBIT "D" INSURANCE At all times during the term of this Agreement MANAGER, at its expense, shall keep or cause to be kept in effect the following: 1. Fire and All Risk Property coverage (including flood insurance, if applicable, to the extent available through a federally sponsored program for flood insurance) on the entire Parking Building, the public parking and access ways and easements, improvements, fixtures and machinery contained therein constructed or under construction by MANAGER in an amount equal to its full insurable value with a deductible(s) of not more than two percent (2%) of the full insurable value provided that such deductible(s) may be increased so as to be commercially reasonable with the consent of the City Manager, such consent not to be unreasonably withheld. The All Risk policy shall include CITY'S interest as loss payee. 2. Workers' Compensation Insurance to the extent required by Florida Statutes, for all persons employed by MANAGER, its contractors, agents or independent contractors who, in the course of their employment, come upon the Public Parking and easements. 3. A commercial general liability insurance policy, including garage keepers liability insurance, in standard form, insuring MANAGER and CITY as an additional insured (in addition to any other person or entity who may be an insured thereunder), against bodily injury or property damage per the standard ISO commercial general liability policy in the amount of not less than Five Million Dollars ($5,000,000). All such policies shall cover the Public Parking as defined herein which includes all easements and alleyways. The CITY shall have the right to review the amount of the commercial general liability insurance policy provided by MANAGER at ten (10) year intervals following the date of this Agreement. If, at the time of such review, the CITY determines that the amount of insurance then being carried is not commercially reasonable, the CITY shall notify the MANAGER of the increased amount of such commercial general liability insurance required to be commercially reasonable in the CITY'S judgment. If MANAGER agrees with the CITY'S determination, the commercial general liability insurance policy shall be increased to such amount as determined by CITY. 4. Any and all net insurance proceeds received by or on account of MANAGER, as the case may be, shall be held in trust by the recipient thereof, who shall administer and apply such proceeds in accordance with the provisions of this Agreement. 5. All of the policies of insurance provided for in this Agreement: (i) shall be in the form and substance approved by the Insurance Department of the State of Florida, (ii) shall be issued g:~a\w\block77~parking\Agt. 01 s. da.082099 33 only by companies licensed by the Insurance Department of the State of Florida, (iii) Certificates of Insurance pertaining to same shall be delivered to CITY, prior to the commencement of the Term of this Agreement, (iv) shall be with a carrier having a Best's Rating of not less than B+ Class VII, (v) shall bear endorsements showing the receipt by the respective companies of the premiums thereon or shall be accompanied by other evidence of payment of such premiums to the insurance companies, including evidence of current annual payment, if on any installment payment basis, and (vi) shall provide that they may not be canceled by the insurer without service of notice of the proposed cancellation upon CITY (at least thirty (30) days notice) and shall not be invalidated as to the interest of CITY by any act, omission or neglect of MANAGER; and (v) shall name the CITY as an additional insured as to paragraphs 1 and 3 above. A copy of the policy, including all amendments or endorsements, shall be delivered to the CITY within fifteen (15) days of the commencement of the policy's term and within fifteen (15) days of any amendment or endorsement thereof. In any case where the original policy of any such insurance shall be delivered to MANAGER, a duplicate original or certificate of such policy shall thereupon be delivered to CITY. All insurance policies shall be renewed by MANAGER, and certificates evidencing such renewals, bearing endorsements or accompanied by other evidence of the receipt by the respective insurance companies of the premiums thereon, shall be delivered to CITY, at least twenty (20) days prior to their respective expiration dates. 6. If MANAGER fails to obtain and maintain insurance as provided in this Agreement and such failure shall continue for a period of thirty (30) days after notice by CITY, CITY may, but shall not be obligated to, effect and maintain any such insurance coverage and pay premiums therefor of pursue any other remedy provided by contract or allowed by law. 7. The obligation of collection upon the insurance policies furnished and provided for by MANAGER, or obtained by CITY by reasons of the failure of MANAGER to obtain them, shall be upon MANAGER, but CITY shall cooperate in such collection (but without expense to CITY) in such reasonable degree as may be requested by MANAGER. g:~s\w\block77¥arking\Agt.01 s.da.082099 34 EXHIBIT "E" Sun Trust Bank Substitute Parking g:\s\w~block77~parkingLa, gt.O 1 s.da.082099 35 E. ATLANTIC. AVENUE mmmmmmmmmmm~ $.E. IST STREET pLAN