04-05-04 Agenda Special CITY I~OMMISSION
CITY OF DELRAY BEACH. FLORIDA
SPECIAL MEETING - MONDAY. APRIL 5. 2004
4:00 P.M. CITY MANAGER'S CONFERENCE ROOM
1993
2001
The City will furnish appropriate auxilLary 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, 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.
SPECIAL MEETING AGENDA
Pursuant to Section 3.12 of the Charter of the City of Delray Beach, Mayor Jeff Perlman, has
instructed me to announce a Special Meeting of the City Commission to be held for the following
purposes:
CONVEYANCE AGREEMENT/MEDIA ENTERTAINMENT PRODUCTIONS
(USA). INC.: Provide direction regarding further negotiations on the draft Media
Entertainment Productions (USA), Inc. Contract.
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.
Me131o
· re." City Commission
Fmm~ David Harden ~l
/
CC;
13at~ Apdl 2, 20O4
Draft MEP Conveyance Contract
City Commission direction is requested concerning further negotiations on the attached draft
contract.
MEP has made it very dear that they want the City to deed them the land and parking for
their building in exchange for the advertising and promotion we would receive as outlined in
Exhibit "B,' Buyer's Services. Based on the appraisal of the library site, this land is worth at
least $450,000, and 50 parking spaces are worth at least $200,000 based on the $4,000 per
space in lieu fee which applies for this area. Actually, the land value alone for 50 parking
spaces in this area (at 300 square feet gross area per space) would be more like $750,000.
The threshold question is, does the Cit7 Commission believe it is worth $650,000 -
$1,200,000 to bdng this business and its 35 jobs to Delray Beach? We are certainly not
beggars for economic development. I feel sure that if we issued an RFP f~e'this property, we
would receive a great deal of interest in response.
If the Commission determines that the answer to the first question is "yes," then staff needs
direction on the other issues raised in the City Attorney's memo.
Planning & Zoning Department
MEMORANDUM
TO:
FROM:
DATE:
RE:
Paul Dorling, Direc~//of Planning & Zoning Department
April 2, 2004
Tennis Center Development
NI-Ametica City
1993
2001
Il
To construct a mixed use building on a portion of the Tennis Stadium site (southeast
corner) the following activities must occur:
· A Future Land Use Map change to redesignate the property from CF-P
(Community Facilities - Public Buildings) to CC (Commercial Core).
· Modification of LDR Section 4.6.9(E)(3)(b)4 and the associated in-lieu map to
allow the purchase of parking spaces in-lieu.
Parkin,q Requirements:
Pursuant to Land Development Regulations (LDR) Section 4.4.9(G)(1)(e) a
10,000 sq. ft. office and 5,000 sq. ft. commercial development would require 50
parking spaces (1 space per every 300 sq. ft. of gross total floor area). Any
restaurant uses would require 6 spaces per 1,000 sq. ft. of gross area rather than
1 per 300.
Surroundin,q Parkinq Inventory:
Monterey Lot (owned by the CRA) contains forty-nine (49) spaces assigned in the
following manner:
· Twelve (12) spaces owned by the City of Delray Beach,
· Six (6) spaces owned by Hampton Bay,
· Nine (9) spaces dedicated to the CRA Office and,
· Twenty two (22) spaces owned by the CRA and available to the general public.
CRA Lot (behind Stofft building) contains forty-three (43) spaces assigned
following manner:
· Twenty (20) spaces owned by the CRA and available to the general public,
· Nine (9) spaces owned by Manimal
· Five (5) spaces owned by 42 N. Swinton Ave. and,
· Nine (9) spaces owned by Delray New Wave
in the
Tennis Center Development
Page 2 of 2
The north side of Atlantic Avenue has seven (7) on streetparking spaces between NW
1st and 2nd Avenues and seven (7) spaces between NW 2nd and 3rd Avenues.
NW 1st Avenue has eight (8) on street parking spaces south of NW 1st Street
(immediately east of the Community Center parking lot) and thirteen (13) on street
parking spaces south from the Community Center parking lot to Atlantic Avenue.
Parking Options:
LDR Section 4.6.9(E)(4) allows utilization of off site parking on other property
within 300 feet provided both properties are of the same general type of zone
designation (i.e., commercial, industrial, offices, etc.) or when the off-site parking
site is zoned CF and a conditional use approval for use as a parking lot has been
approved. Both parking lots on the east side of NW lS'Avenue (CRA lot,
Monterey lot) are zoned OSSHAD and received conditional use approvals for
stand alone parking lots which will serve the needs of adjacent uses.
The parking needs for this use can be accomplished by:
2.
3.
4.
Providing the necessary parking on site (under building parking/surface
parking);
Purchase in-lieu spaces $4,000 per space pursuant to LDR Section
4.6.9(E)(3)(G)(4);
Entering into a shared parking agreement with the CRA and the City for the
required spaces (56 total available in Monterey and CRA lot);
Entering into an agreement with the City to build the extension of the
Courthouse garage (this would have to wait until the construction of the
Library is completed) or;
Any combination of the above.
Attachments:
Monterey parking lot rendering
CRA parking lot rendering
25' ~o' Ys' ~oo' I
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PAVED
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£1T¥ I)F I)ELII;I¥ BER£H
CITY ATTORNEY'S OFFICE
'!111.'
March 22, 2004
Danielle DeV'~o-Hurley
Gunster, Yoakley & Stewart, P.A.
500 East Broward Blvd.. Suite 1400
Fort Lauderdale, FL 33394-3076
200 NW 1st AVENUE. DELRAY BEACH, FLORIDA 33444
TELEPHONE 561/243-7090 · FACSIMILE 561/275-4755
WRITER'S DIRECT LINE 581/243-7091
Re: Contract for Convevan~
Dear Ms. Devito-Hurley:
I have reviewed the contract and have prepared the following outline of the
contract's main points and my response to some of those points. As stated
previously, due to the need to negotiate an agreement acceptable to both parties
and to advertise the agreement for two weeks prior to consideration by the City
Commission, the time frame referenced in the contract is impossible to meet.
Please cell me upon your receipt of same to further discuss the agreement. By
copy to the parties listed below, I am requesting thaHhey review the summary and
contract and provide additional comments.
Thanks.
Sincerely,
OFF~E CiTY ATT-~NEY
FC ,D^
· san A. Ruby, Esq.
City Attomey ~
SAR:sink
Attachment
CC'
City CommL~ionere
David T. Harden, City Manager
Joseph Safford, Finance Director
Paul Doding, Planning & Zoning Director
Summary of Main Points and Comments
The Contract for Conveyance provides in pertinent part as follows:
The closing Date is set for 10 business days after Buyer's conditions are
met. The conditions reference approvals and they are defined as all
development permits (except building permits). Further, the required
parking agreements must also be in place to meet parking requirements
and the property must be legally separated, etc. [It will be difficult to
meet the closing date because the contract provides that all the
above approvals must be obtained in 8 weeks.] (Paragraphs 1.2 and
3.7).
The property to be conveyed is 9,000 square feet located at S.E. comer of
Tennis Center, 137 feet from east to west from edge of curb and
approximately 75 feet in length from North to South from edge of curb - to
be described legally by a survey. (Paragraph 1.5)
The Buyer's consideration will be to provide buyers services (see Exhibit B
attached to contract). Buyer's services are estimated by buyer at
$2,968,000.00. [I would suggest that Exhibit B be scrutinized by the
City Commission to determine value.] (Paragraph 2).
The Buyer will commence construction within 12 months after the closing
date. Construction commencement is to be evidenced by poured footers
and slabs for an office building (not exceeding four stories). The contract
allows Buyer to condominimize certain parts of the development. [This
may affect negatively the City's ability to repurchase or to foreclose
on a mortgage if the city is to secure the property with a mortgage.]
(Paragraph 3.1 ).
The contract requires the City and Buyer to use reasonable efforts to
obtain development approvals (on behalf of Buyer). Further, the
approvals will not be deemed granted until all appeal periods have been
exhausted and/or expired. [City cannot agree to this language. The
City cannot legally promise as drafted and further the 8 week time
frame to secure the approvals does not leave time for such appeals.
Further, the City cannot promise to give its consents for approval to
other agencies. Further, only Buyer has the right of termination if
approvals are not obtained in 8 weeks. I would suggest Buyer and
Seller have the right to terminate with no other remedies for both
parties. Same with Paragraph 7.6] (See Paragraphs 3.2, 3.3, 3.4 and
3.7).
The City is required to apply for and pay for the applications for
development approvals except the Buyer will pay for the site plan approval
and for building permits. The approvals must be obtained in eight weeks.
[I would recommend that Buyer pay for all applications. Further, as
stated, 8 weeks is insufficient.] (Paragraph 3.3).
Further, the City is required to give notice to Buyer of all meetings and be
allowed take part in the telephone calls in which the project is discussed
be given a chance to review all documents prior to approval including staff
reports, ordinances, etc. [The prior approval of staff reports and
ordinances would violate due process and the City's responsibility to
review the project in accordance with its police powers and
ordinances in a nonarbitrary fashion. Further, it has the effect of
having the City wait for review by Buyer of the documents, causing
project delays and disruptions. Further, the contract does not
provide that the City retains control of video content or the product
ultimately produced. Thus, the City could not be guaranteed it will
be portrayed in the best light..] (Paragraph 3.3).
The Buyer has the right to marketable and insurable title subject to
permitted exceptions not objected to by the Buyer in the objection notice.
The City has 30 days to clear any defects. If the City cannot, then the
agreement is terminated unless the Buyer accepts the defect. [I would
recommend instead that the contract list the permitted exceptions at
the outset so that the Buyer and Seller are certain of what would be
considered acceptable or not.] (Paragraph 4.1, 4.1.2).
The City, within 30 days of the effective date of the agreement, shall
deliver to Buyer a current boundary survey. The Buyer, no later than
closing, may request an updated survey. The City and Buyer are to split
the cost of the surveys. [I would suggest that Buyer pay for all
surveys.] (Paragraph 4.3).
10.
During the inspection period (60 days from execution of the contract),
Buyer will pay all costs of any and all inspections and may terminate the
agreement at any time during the inspection period and also may
terminate if the approvals do not occur within 8 weeks of contract date (i.e.
60 days). (Closing is scheduled for 10 days after the 8 week period).
[Eight weeks is not enough time to obtain all approvals.] (Paragraph
5.2).
11.
The City must obtain, at its own expense with no cost to Buyer, the
parking and parking agreements sufficient to provide needed parking for
the building. [I recommend the Buyer should be responsible for
obtaining all parking agreements and funding the cost of all parking.]
(Paragraph 5.3).
12.
The City must obtain an appraisal to confirm that the fair market value of
the property is less than the value of Buyer's services set forth in Exhibit B
to the contract per[ormed by a mutually agreeable appraiser, with each
party sharing one half the cost. [The City should obtain the appraisals
from an appraiser of its choice. The services list in Exhibit B needs
to be reviewed and perhaps negotiated.] (Paragraph 5.4).
13.
Buyer shall pay the following expenses at closing: title insurance,
recording deed, costs of inspections, 50% of survey preparation, 50% of
appraisal fees, their own attorney fees. [I would recommend that the
Buyer should pay all expenses.] (Paragraph 9.1).
14. City to pay:
1)
2)
3)
Documentary stamps;
50% of cost preparation for survey and appraisal;
own attorney fees.
[The City cannot pay doc stamps pursuant to law. Also, I would
recommend that all costs, except for the City's attorney's fees, be
paid by the Buyer.] (Paragraph 9.2).
15.
Under the contract in Paragraph 13, the City will have a right of
repumhase for 36 months from the closing date if commencement of
improvements (i.e. construction of footers and slabs) do not occur on or
before 24 months from the date closing, or the completion of construction
does not occur on or before 36 months from the closing date (completion
of construction is defined as the issuance of a CO). The repumhase price
will be the higher of Buyer's actual out-of-pocket costs, including hard and
soft development costs, construction, architectural, engineering, planning
or other costs (excluding interest on loans, less the balance of any
mortgage and liens paid or assumed by Seller in connection with the
repurchase, or the costs of releasing the property from any construction
liens and mortgages or deeds of trust and Buyer satisfying all other liens
and encumbrances. If the City exercises its right of repurchase any
"mortgagee" is entitled to assume Buyer's obligations and cure any default
and complete the construction and the City's rights to repurchase are
inferior and subordinate to those rights. [The City should have a
superior first mortgage lien that it can foreclose upon in the amount
of the appraised value of the land and all the City's costs and
expenses expended to the date of the foreclosure. The contract
does not sufficiently protect the City's repurchase rights in the land
because the City's rights are inferior to all mortgages on the
property. Also, the City's repurchase rights end upon Buyer
obtaining a "CO".] (Paragraph 13.3).
3
16.
17.
18.
19.
20.
21.
22.
The contract provides that if there is a default prior to closing, the City's
sole remedy is to terminate the agreement. If the City defaults, the Buyer
has a right to terminate, and the right to damages and specific
performance. If the Buyer defaults post closing, the Seller shall recover
only the actual damages from the Buyer which shall not exceed the
appraised property value less the value of Buyer's services which have
been actually provided by Buyer to Seller. [Prior to closing, Buyer
should be limited to termination if City defaults and should, after
closing, pay to City all costs expended by the City if Buyer defaults.
The City should have the right to foreclose a first mortgage in the
amount of the appraised value of the land and the value of all
expenses incurred by the City which right should be superior to all
other loans, etc.] (Paragraph 14).
The contract provides for prevailing party attorney's fees. [I recommend
that each party bear its own attorney's fees and costs]. {Paragraph
16).
The law of the State of Florida applies and venue is in Palm Beach
County. The parties agree services of court papers by mail are sufficient.
[I do not recommend accepting service by mail]. (Paragraph 17).
Time for acceptance of the contract is March 18, 2004 at 5:00 p.m. [This
time frame is not possible. The contract needs to be negotiated and
the contract needs to be advertised for 2 weeks prior to acceptance].
(Paragraph 18).
There is a waiver of trial by jury in the contract. [A waiver of jury trial is
not acceptable.] (Paragraph 35).
The agreement is not to be construed against the Buyer as the drafter
[The drafter should be placed in the position of superior knowledge.
I recommend this paragraph be omitted.] (Paragraph 28).
There are restrictive covenants for a period of time on the uses permitted
for the development. The restrictive covenant provides that the Buyer
shall not re-plat, rezone or subdivide any portion of the property nor shall
anything be constructed nor shall construction be commenced unless the
City approves of it. No exterior change will be permitted unless approved
by City with 30 days after permission. There are other restrictions
regulating to "no trash", etc. "no tents, trailers", etc. except for
construction trailers, etc. during actual construction. The City can enforce
the covenant by going to court or the City may correct the problem and file
a lien if the City needs to correct a deed restriction violation. The lien can
be foreclosed upon but the lien will be inferior to first mortgages. The
restrictions last 25 years. [I would suggest the restrictions last longer.
4
Also, we need assurances that all condominium properties will be
subject to restrictions.] (Paragraph 8.31).
23.
The agreement does not have assignment prohibitions. Il'he agreement
should have a prohibition against assignment especially in light of
the Buyer's services the City is receiving as consideration.]
24.
Lastly, there does not appear to be any promise in the agreement itself
that the building will be designed by Michael Graves and constructed in
accordance with his design. There is a reference to Michael Graves in
Exhibit B but I would suggest that a definite commitment to providing a
Michael Graves designed product and construction in accordance with its
design so long as it meets City criteria. Further, there needs to be review
by the City prior to the release of any video with the City having right to
either approve the video and/or an agreement that the video show the City
in the best light, etc.
GunsterYoakle¥
Our File Nnmher: 16016.9000
Writer's Direct Dial Number: 954-468-1328
Writer's E-Mail Address: ddevito~gumter, com
March 10, 2004
BY ELECTRONIC MAIl,
Susan A. Ruby, Esquire
City Attomey's Office
200 NW 1~t Avenue
Delray Beach, FL 33437
Re:
Conveyance Agreement ("Conve ce A ement") between Media
Entertainment Productions (USA), Inc. ("MEP") and City of Delray Beach
("City")
· Dear Susan:
It was a pleasure meeting with you to discuss the formulation of an agreement between
MEP and the City with respect to the approximately 9,000 square feet of vacant land located in
the southeastern comer of the parcel commonly known as the City of Delray Beach "Tennis
Center" ("PropertV').
We have enclosed herewith for your review a proposed Conveyance Agreement, which,
in pertinent part, provides that the City will convey fee simple title to the Property to MEP once
the applicable development approvals have been issued in order for MEP to consmact a
maximtun of four story office building, with retail/restaurant related uses. The Property would
be conveyed subjeet t o r estrictions a nd covenants t hat pmvide t hat t he Property m ay only b e
used for office/retail/restaurant uses and which explicitly prohibit certain uses, which the City
finds objectionable. Furthermore, if construction is not commenced and/or completed within
certain time fi~nes, the City may elect to reacquire the Property. After many discussions with
our client, due to financing and other issues, our client would much prefer to receive fee simple
title to the Property, with the foregoing protections built in for the City.
In exchange for this conveyance, MEP will feature the City in its television series,
Architecture and Design Television, and the City will receive the promotional and other benefits
specifically listed on Exhibit B attached to the Agreement. Our client is confident that the City
will agree that the value of these promotional and other benefits to the City, together with the
intrinsic value of having a Michael Graves designed "flagship" office building at this prominent
location within the City, far outweighs the present fair market value of the Property.
Susan A. Ruby, Esquire
March 10, 2004
Page 2
In addition to the services to be provided by MEP to the City, which are listed on Exhibit
B of the Conveyance Agreement, we believe that the City would also receive the following
benefits from this arrangement, which are worth noting here:
1. New Office Building:
a. The City will have an architecturally significant building, designed by the
world famous Michael Graves, as a flagship building located in a prominent
location within the City, which would be a rarity within the State of Florida,
and could potentially be used in the City's brochures, website, cultural events,
etc.
b. This new office building would generate significant ad valorem tax revenues
to the City;,
c. The building would help attract office space downtown and continue the
expansion of the business commRuity West;
d. First class retail space will be available on the street level to attract pedestrian
traffic to area, resulting in increased dollars to local economy;,
e. Potentially, as part of the design of the building, Michael Graves could design
a sculpture garden dedicated to local students work. This site could be
changed with the seasons and promote the culture in the City;
f. Potentially, Michael Graves could open a second "Michael Graves Design
Store" (the first is located in Princeton, NJ) continuing the image value of the
City and senring as a destination city for such works.
2. Relocation of MEP's existing headquarters:
The relocation o f M BP's existing headquarters from Boca R aton w ill b ting
approximately forty to fifty new employees to the City contributing to the
local economy, potentially purchasing homes, etc.;
MEWs two (2) existing series, World Business Review and Health Journal
Television, hosts between 150 and 250 Presidents, Chief Executive Officers
and Upper Level Management for taping of such shows. Each is an ideal
candidate for the city's chamber of commerce to develop relocation prospects,
tourism, and to cultivate nationwide relationships.
The City will receive siguificant public relations value as a result of MEP
choosing the City for the location of its new series (above and beyond what is
specifically set forth in Exhibit B). For example, as a result of MEP selecting the
City as the feature city of the show, the City would receive valuable and positive
exposure to assist in attracting new individuals and new business to relocating to
Guuster, Yoaldey & Stewart, P.A.
ATTORNEYS AT LAW
Susan A. Ruby, Esquire
March 10, 2004
Page 3
the City, the City could potentially be included in the published collections of
Michael Graves' works and be included in public speald~g engagements given by
Michael Graves, be used as a "branded" name for specialty product lines, which
would associated t he City with i terns o f quality a nd distinction, b e included i n
promotional demo tapes and web pages of dozens of manufacturers of products
used on the show, etc..
MEP is very excited about the prospect of producing its show in the City and successfully
negotiating and executing the enclosed Conveyance Agreement. However, due to the time
constraints imposed by the production schedule of the television series, MEP must condition its
offer to the City as contingent upon acceptance by the City Commission and execution by both
parties of a mutually acceptable Conveyance Agreement by no later than March 18~ 2004. ffthe
Conveyance Agreement is not approved and executed within such time flame, regrettably, MEP
will have no choice but to relocate the location of the series to another venue.
We very much look forward to working with you on this matter. Upon your review of
the enclosed Conveyance Agreement, please do not hesitate to contact us as soon as possible so
that we can discuss any questions or comments that you may have. Thank you.
Very Truly Yours,
Danielle DeVtto-Hurley
Denielle DeVito-Hurley
For the Firm
DDH/Enclosures
cc: Tom Clynes
John Sasson
FTL 25268~. I
Gunster, Yoakley & Stewart, P.A.
ATTORNEYS AT LAW
CONVEYANCE AGREEMENT
This CONVEYANCE AGREEMENT is made and entered into this day of March,
2004, by and between MEDIA ENTERTAINbIENT PRODUCTIONS (USA), INC., a Florida
corporation ("Buyer"), and CITY OF DELRAY BEACH, a Florida municipal corporation
("Seller" or "Cit~").
WITNESSETH:
WHEREAS, Seller has agreed to sell and convey to Buyer, and Buyer has agreed to
purchase and acquire from Seller, on the t~ms, covenants and conditions hereinafter set forth, the
Property, as hereinafter defined.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
contained herein, the sum ofTEN AND NO/100 DOLLARS ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer
agree as follows:
1. DEFINITIONS. The following terms as used herein shall have the following meanings:
1.1
hereto.
"Agreement" - this insmmaent, together with all exhibits, addenda and amendments
1.2 "Closing Date" - No later than ten (10) business days after all of Buyer's
Conditions Precedent to Closing have been satisfied or otherwise waived by Buyer as set forth in
Section 7 hereof.
1.3
and Buyer.
"Effective Date" - the date upon which this Agreement is last executed by Seller
1.4 "Insoecfion Period" - that certain period of time commencing on the Effective Date
and tvmfinafing at 5:00 p.m. eastern standard time on the sixtieth (60) day after the Effective Date.
1.5 "Properrf' - that certain real property located in Palm Beach County, Florida to be
transferred and conveyed by Seller to Buyer under this Agreement, as generally described in
Exhibit "A' attached hereto and incorporated herein by reference, together with all development
entitlements and rights applicable thereto, and all appurtenances, rights, easements, rights-of-way,
tenements and hereditaments incident thereto. Buyer and Seller agree that, upon issuance of a
mutually acceptable S arvey i n accordance with Section 4.3 hereof, t he 1 egal description o f t he
Property set forth on such Survey shall be substituted as Exhibit 'W' attached hereto.
2. CONVEYANCE OF PROPERTY: CONSIDERATION. In consideration for Buyer's
providing to Seller those certain services from and after Closing more particularly described on
Exhibit "B' attached hereto and incorporated herein (the "Buyer's Services"), Seller hereby
agrees to sell and convey to Buyer and Buyer hereby agrees to purchase from Seller, on the t.tins,
covenants and conditions hereinafter set forth, the Property. Buyer's obligation to provide the
Buyer's Services to Seller shall survive Closing.
3. APPROVAL FOR BUYER'S INTENDED USE.
~ Dated 3/3/2004
FTL 252247.5
3.1 Intended Use. Buyer proposes to'commence construction within twelve (12)
months after the Closing Date, as evidenced by poured footers and slabs, of an office building
(which shall not exceed four (4) stories in height), which shall contain retail, restaurant and/or
office uses on the first floor, together with all amenities and facilities in connection with the
operation and maintenance thereof (collectively, the "Proposed Improvements" or the "Intended
Use"). All or any portion(s) of the Proposed Improvements may, at Buyer's discretion, be
conveyed by Buyer as separate condominium parcel(s), subject to the Restrictive Covenants (as
defined herein).
3.2 Develot)ment Approvals. From and after the Effective Date, Seller and Buyer
agree to use reasonable, good-faith efforts in order to obtain thc "Development Approvals" (as
defined herein) for the Proposed Improvements. For purposes hereof, the t=un "Development
Approvals" shall be deemed to mean all governmental approvals, permits and licenses required in
order for Buyer to construct the Proposed Improvements on the Property, except for building
permit(s) for the Proposed Impwvements, all on terms and conditions acceptable to Buyer. Thc
Development Approvals shall be deemed to include, without limitation, as applicable: (i)
amendment(s) to the City of Delray Beach's comprehensive plan; (ii) development order
amendment(s) and amendment(s) of the land use designation, (iii) special exception(s) and
variances, if necessary, (iv) plat/replat, (v) rezoning end any other approvals necessary to p~mit
the Proposed Improvements (i.e., office and retail use) as an allowable use for the Property, (vi)
South Florida Water Management District and US Army Corps of Engineers permits, and (vii) site
plan approval. The Development Approvals shall not be deemed to have been issued unless and
until Buyer prevails in any actions or proceedings that may be commenced with respect to the
Development Approvals a nd all appellate p wceedings and appeal p er/ods h ave been exhausted
and/or have expired.
3.3 Seller's Cooveration. From and after the Effective Date, Seller agrees to promptly
apply for and diligently process as expeditiously as possible, at Seller's expense, those certain
Development Approvals set forth in subsections (i) through (vi) of Section 3.2 above.
Notwithstanding anything contained herein to the contrary, nothing herein shall be deemed to limit
or prevent Buyer from also using reasonable, good-faith efforts, in cooperation with Seller, to also
obtain such Development Approvals. Seller shall provide to Buyer written notice of and the
opportunity for Buyer to attend any meetings and/or telephone calls with any governmental or
quasi-governmental authority with respect to the Development Approvals for the Properly and the
opportunity to review and approve in a timely fashion, staff reports, ordinances, resolutions,
conditions of approval, development orders and other documents filed by the Seller in association
with the Development Approvals. Furthermore, Seller shall join in and consent to any
applications submitted by Buyer to any governmental agencies and shall execute any and all
documents reasonably necessary for Buyer to obtain approval.
3.4 Seller's Disclaims. Notwithstanding anything contained to the contrary in th/s
Agreement, the parties reco~i=e and agree that certain provisions of this Agreement may requh-e
the City and/or its boards, departments or agencies, acting in the/r governmental capacity, to
consider certain changes in applicable City codes, ordinances, plans or regulations, as well as to
cons/der other governmental actions. All such considerations and actions shall be undertaken/n
accordance w/th established requirements of state statute and City ordinances, in the exercise of
the City's jurisdiction under the police power. Nothing in this Agreement is intended to 1/m/t or
restrict the powers and responsibilities of the City in acting on applications for Development
FTL 252247.5
Approvals which may be required in connection with the Proposed Improvements by virtue of the
fact that the City may have consented to such applications as a property owner hereunder. The
parties further recognize and agree that these proceedings shall be conducted openly, fully, freely
and fairly in full accordance with law and with both procedural and substantive due process to be
accorded the applicant and any member of the public. Nothing contained in this Agreement shall
entitle Buyer to compel the City to take any such actions, save and except the consents to the filing
of such applications for Development Approvals, as more fully set forth herein, and to process
such applications in an expeditious fashion.
3.5 Fees and Costs for Approvals. All fees, costs and expenses incurred in connection
with obtaining the those certain Development Approvals set forth in subsections (i) through (vi) of
Section 3.2 above shall be the obligation of Seller. All fees, costs and expenses incurred in
connection with obtaining the site plan approval and the issuance of the applicable building
permit(s) for the Proposed Improvements shall be the obligation of Buyer.
3.6 Ownership of Approvals. Buyer and Seller agree that all materials received
pursuant to this Agreement and in conjunction with Buyer obtaining the Development Approvals
for Buyer's Intended Use of the Property shall be the sole pmperty of Buyer. On the Closing
Date, Seller shall assign to Buyer all of Seller's right, title and interest, if any, in and to any
Development Approvals obtained by or on behalf of Buyer.
3.7 Termination for Failure to Obtain the Development Approval~. Notwithstanding
anything contained herein to the contrary, in the event that the Development Approvals are not
issued within eight (8) weeks from the Effective Date hereof, then Buyer shall have the right, in its
sole and absolute discretion, to t~mdnate this Agreement by written notice to Seller (which..d'ate
may be extended by Buyer at its option), in which event this Agreement shall be cancelled, and
neither party shall have any further obligations to each other with respect to the matters contained
in this Agreement, except for those matters which survive the termination of this Agreement.
4. TITLE AND SURVEY.
4.1 Title Commi~nent.
4.1.1 Not later than the expiration of the Inspection Period, Buyer will obtain, at
Buyer's expense, a title insurance commilment (the "Commitment.") issued by a title insurance
company authorized to transact business in the State of Florida (the "Title Insurer"), naming Buyer
as the proposed insured and committing to insure for the amount of the Appraised Property Value
(as defined herein) Buyer's fee simple title to the Property, and stating all exceptions and
conditions to such title, including, without limitation, all easements, restrictions, covenants,
reservations, and other encumbrances affecting title. It is a condition of Buyer:s obligation to
close that title to the Property is marketable and insurable subject only to: (i) real property taxes
and assessments for the year in which the Closing occurs, which shall be prorated as provided for
herein, and for subsequent years, and (ii) those other items which are not objected to by Buyer in
an Objection Notice pursuant to this Section 4 (collectively, the "Permitted ~'').
4.1.2 If Buyer determines that any matter adversely impacts Buyer's Intended
Use of the Property, Buyer will notify Seller in writing on or before the expiration of the
Inspection Period of Buyer's objections (the "Objection Notice"). If Buyer timely delivers the
FTL 252247.$
Objection Notice to Seller, Seller will usc reasonable good faith efforts to cure thc title matters
described in the Objection Notice within thirty (30) days aider receipt of such Objection Notice
(provided, however, that Buyer shall have the right, from time to time, in its sole discretion, to
extend such 30-day time fxame by providing written notice thereof to Seller, during which time
Seller shall continue to use reasonable, good-faith efforts to cure the same). In the event that
Seller, using reasonable good faith efforts, is unable to cure the title matters described in the
Objection Notice, then Buyer shall have the option of either (x) proceeding to Closing and
accepting titie to the Property "as is, or (y) terminating this Agreement by written notice to Seller,
in which event this Agreement shall be cancelled, and neither party shall have any further
obligations to each other with respect to the matters contained in this Agreement, except for those
matters which survive the t~mtination of this Agreement. Notwithstanding anything contained in
this Agreement to the contrary, Seller shall be obligated to discharge, either at or before Closing,
ail mortgages, conslxuction liens, liens which are evidenced by an instrument executed by Seller,
other liquidated liens and judgments, and past due taxes.
4.2 Uvdated Tire Commitment,
4.2.1 On or before the Closing, Buyer will obtain an endorsement bringing the
effective date of the Commi~raent forward to a date within thirty (30) days of the Closing Date
(the "Updated Commilment"). If the Updated Commitment discloses any matters that are not
Permitted Exceptions ("Additional Title D elects"), then Buyer shall h ave the right to object to
such Additional Title Defects by providing written notice of same to Seller, within the earlier of (i)
five (5) days after receipt of such Updated Commiffnent or (ii) the Closing Date. If Buyer timely
delivers notice of such Additional Title Defects to Seller, Seller will use reasonable good faith
efforts to cure such Additional Title Defects prior to Closing; provided, however, that: (i) Seller
shall have the right to extend the Closing for a period not longer than fiReen (15) days in order to
cure such Additional Title Defects; and (ii) notwithstanding anything contained herein to the
contrary, Seller shall have the absolute duty to cure Additional Title Defects caused by Seller [i.e.,
executed by Seller or authorized in writing by Seller] after the Inspection Period and prior to
Closing.
4.2.2 In the event that Seller, using reasonable good faith efforts, is unable to
timely cure such Additional Title Defects (other than those caused by Seller), then Buyer shall
have the option of either (x) proceeding to Closing and accepting title to the Property "as is, or (y)
tcusfinating this Agreement by written notice to Seller, in which event this Agreement shall be
cancelled, and neither party shall have any further obligations to each other with respect to the
matters contained in this Agreement, except for those matters which survive the termination of this
Agreement.
4.3 Boundary Survey. Within thirty (30) days fxom the Effective Date, Seller shall
deliver to Buyer a current boundary survey of the Property (the "Survey") prepared by a Florida
licensed surveyor in accordance with the minlrrlum technical standards for surveys lmder Florida
law, certified to Seller, Buyer and the Title Insurer (and the agent issuing the Commim~ent),
showing the legal description for the Property and specifying the ground surface area thereof. The
cost of the Survey shall be shared equally by Buyer and Seller. Buyer will have until the
expiration of the Inspection Period to review the Survey and to deliver in the Objection Notice its
objections to any matters that adversely impact Buyer's use of the Property disclosed by such
Survey. If Buyer has any objections to matters shown on, or omitted from, the Survey, then such
FTL 252247.5
objections, if any, shall be made in the same manner and subject to thc same conditions and
review periods as objections to the Coramitment as provided in Section 4.1 abovc.
4.4 Ur~lated Survey. Not later than the Closing Date, Buyer, at Buyer's expense, may
obtain an updated boundary survey meeting the requirements of the Survey (the "Updated
Survey"). If the Updated Survey discloses any matters not shown on the Survey that are not
Permitted Exceptions, then Buyer may object to such additional matters in the same manner, and
subject to the same conditions and review periods, as objections to the Additional Title Defects as
provided in Section 4.1 above.
INSPECTION PERIOD.
5.1 Inspections. During the Inspection Period, Buyer and its engineers, surveyors,
agents and representatives shall, subject to the terms and conditions hereof, have access to the
Property, for the purposes of conducling surveys, tests, environmental audits, analyses, inspections
and such other tests in connection with of the Property (collectively the "Inspections") which
Buyer deems desirable, provided, however, that no Inspection shall result in the imposition of a
hen or other encumbrance on the Property or any part thereof. Buyer covenants and agrees to
indemnify and hold harmless Seller from any and all liability, costs, claims, demands, damages,
actions, causes of action and suits arising out of the exercise by Buyer of Buyer's rights under this
paragraph. Buyer shall return the Property to the same condition it was in prior to conducting any
Inspections, and this obligation shall survive the termination of this Agreement. Any such
Inspections shall be subject to the following terms and conditions:
5.1.1 Buyer's Cost. All Inspections shall be at Buyer's sole cost and expense.
5.1.2 Insurance. Prior to any such Inspections of the physical condition of the
Property, Buyer shall obtain or cause to be obtained and provide or cause to be provided to Seller
evidence of comprehensive general liability insurance coverage in an amount not less than
$1,000,000 naming Seller as an additional insured.
5.2 Buyer's Right to Te~,,inate. Buyer shall have the right, in its sole and absolute
discretion, t o terminate t his Agreement a t a ny time during t he Inspection P cried. I n t he e vent
Buyer elects to terminate this Agreement, Buyer shall notify Seller in writing of its intention to
terminate this Agreement pursuant to this Section. To be effective, this notice must be received by
Seller prior to 5:00 p.m. eastern standard time on the last day of the Inspection Period.
5.3 OffsitcParldn~,Arran~ementq. During the Inspection Period, Seller shall
obtain and deliver to Buyer off-site parking agreement(s) with adjacent property owner(s), at no
cost to Buyer and otherwise reasonably acceptable to Buyer, which parking agreements shall
satisfy the City's and/or any applicable governmental authority's parking requirements for Buyer's
Proposed Improvements on the Property (the "Parking"). In the event that such
Parking A grcement(s) h ave not been entered into o n o r before t he ¢xpiration o f t he Inspection
Period, then Buyer shall have the right, but not the obligation, to extend the Inspection Period
solely with respect to Seller's obtaining SUCh Parking Agreement(s) prior to Closing.
5.4 Avvraisal. During the Inspection Period, Seller shall obtain an M.I.A. appraisal
of the Property in order to confirm that the fair market value of the Property as of the Effective
Date (the "Avvraisod Proverty Value") is less than the value of the Buyer's Services set forth on
FTL 252247.5
Exhibit B attached hereto and mutually agreed to by Seller and Buyer. The appraiser shall be
mutually acceptable to Seller and Buyer and the cost of said appraisal shall be shared equally by
Buyer and Seller.
6. ACKNOWLEDGMENTS, REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER. As a material inducement to Buyer to enter into this Agreement, Seller hereby
acknowledges and represents to Buyer as follows:
6.1 That Seller is indefeasibly seized of good, marketable, fee simple title to the
Property, and that Seller is the sole owner of and has good fight, title and authority to convey and
transfer all Property, rights and benefits which are the subject matter of this Agreement, and the
Property shall at Closing be free and clear of all hens and encumbrances, excepting only the
Permitted Exceptions. Except for the Permitted Exceptions and matters that will be discharged by
Seller at Closing including any and all mortgages or notes encumbering the Property, there are no
other liens or clalm.n on or affecting the Property.
6.2 That Seller is a municipal corporation duly formed and validly existing under the
laws of the State of Florida; and all documents, including this Agreement, executed or to be
executed by Seller which are to be delivered to Buyer at closing have been or will be duly
authorized, executed, and delivered by Seller and are or will be legal, valid, and binding
obligations of Seller sufficient to convey title (if they purport to do so), and do not, or will not
violate any judgment, order, writ, decree or injunction or provisions of any agreement to which the
Seller is a party or to which it is subject; and that Seller has full right, power and authority,
without the necessity, consent or approval of any other person or entity to enter into this
Agreement and to transfer the Property to Buyer pursuant to the terms of this Agreement.
6.3 No action, suit, investigation or other proceeding is pending or, to Seller's
knowledge, has been threatened, that concerns or involves the Property or Seller's interest in the
Property.
6.4 There currently exist no violations of any applicable federal, state or local law,
ordinance, regulation, order, rule or requirement affecting the Property.
6.5 There are no pending, threatened, or, to Seller's knowledge, contemplated,
condemnation proceedings affecting the Property.
6.6 There are no hazardous substances in, on, under or about the Property in violation
of any environmental law applicable to the Property, including, without limitation, (i) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as the same
may have been or may be amended from time to time, and similar federal, state or local statutes,
and any regulations promulgated thereunder, and (ii) any other federal, state or local law,
ordinance, role or regulation, now or hereafter in effect, that deals with or otherwise in any manner
relates to, environmental matters of any kind. For the purposes of this Agreement, the tv~m
"hazardous substances" shall have the meaning given to such term or similar terms under any
applicable federal, state or local laws, rules or regulations.
7. BUYER'S CONDITIONS PRECEDENT TO CLOSE. In addition to any other conditions
set forth in this Agreement, Buyer's obligation to consummate the purchase of the Property is
Fit. 252247.5
expressly contingent upon the following provisions (any of which may be waived by written
notice from Buyer to Seller):
7.1 All of the representations and warranties of Seller contained in this Agreement
shall continue to be tree as of the Closing Date and said representations and warranties shall be
deemed to be restated and affirmed by Seller as of the Closing Date, as if first made on the
Closing Date, without the necessity of Seller's execution of any document with regard thereto. All
of Seller's representations and warranties contained in this Agreement shall surv/ve Closing.
7.2 From and a tier t he Effective D ate o f t his Agreement, Seller s hall h ave taken n o
action which would impair or otherwise affect the Property or title to any portion of the Property,
and shall record no documents in the Public Records which would affect title to the Property,
without the prior written consent of Buyer.
7.3 All of the Development Approvals necessary to develop the Property for Buyer's
Intended Use shall have been issued (other than the building permit(s) for the Proposed
Improvements, which may be obtained by Buyer after Closing).
7.4 All Parking Agreement(s) necessary to satisfy the applicable parking requirements
for the Proposed Improvements have been executed by Buyer and the applicable providers of such
off-site parking, in form and substance acceptable to Buyer in its sole discretion.
7.5 To the extent required by any applicable law, nde, regulation or other restriction
governing the Property ("Applicable Laws"), the Property shall be legally separated into a separate
legal parcel in order for Buyer to own, operate and reconvey, subject to the Restrictive Covenants
(as defined herein) the Property after Closing in compliance with Applicable Laws.
7.6 In the event that any of Buyer's Conditions Precedent to Closing should not be
satisfied by the Closing Date, Buyer shall promptly notify Seller of any such unsatisfied condition
and Buyer may (i) extend the Closing Date for a reasonable I/me thereafter to attempt to have said
condition(s) satisfied or (ii) Buyer may, at its option: (a) terminate this Agreement at any time
prior to closing by giving written notice thereof to Seller, or (b) waive such condition proceed and
proceed to close on this Agreement with said condition(s) precedent unsatisfied.
8. CLOSING. T beparties agreethat the closing ontheProperty (the "Closing") shall be
consummated as follows:
8.1 "Place of Closing" - the Closing shall be held at the offices of Seller's attorney,
unless otherwise agreed to by the parties.
8.2 "Closing Date" - the Closing Date is as specified in Section 1.3 hereof.
8.3 "Seller's Closing Documents" - at Closing, Seller shall deliver or cause to be
delivered to Buyer, the following documents, each fully executed and acknowledged as required:
8.3.1 "Soecial Warranty Deed" - a Special Warranty Deed conveying f~e simple
title to the Real Property (the "Deed"), subject only to the Permitted Exceptions and the
Declaration of Restrictive Covenants and Conditions which are attached hereto as Exhibit "C"
FTL 252247.5
and which shall be attached asan exhibit to the Deed upon recording thereof (the "Restrictive
Covenants").
8.3.2 "Affidavit of Seller" - an Affidavit in the form to be delivered by Buyer,
and sufficient to permit a title insurer to delete the "Mechanics' Lien" exception and "Parties in
Possession" exception from the title insurance policy, and stating that the Property is free and clear
of ail liens, encumbrances, leases, licenses, contracts or claims of rights, which claims may serve
as the basis of a lien or charge against the Property, whether due to services, materiai or lshor
supplied for the benefit of or delivered to the Property, or otherwise; that there are no parties in
possession; and that there are no judgments or other liens outstanding again.~t the Property, except
as set forth in the P~mitted Exceptions.
8.3.3 "Assionment of Riv. hts" - an assi~ment by Seller, in the form to be
delivered by Buyer, whereby Seller shall assign ail of its fight, title and interest in ail
developments or other rights relating to the Property (which Buyer elects to assume at closing and
which are transferable).
8.3.4 "FIRPTA" - a non-foreign certificate in form to be provided by Seller.
8.4 "Possession" - at Closing, Seller shall deliver full, complete and exclusive
possession of the Property to the Buyer subject only to the Permitted Exceptions and the
Restrictive Covenant.
9. EXPENSES.
9.1 Buyer shail pay the following expenses at Closing:
9.1.1 All costs and premium, for an owner's end mortgagee's title insurance
commi~nent and title insurance policy and all endorsements thereto.
9.1.2 The cost ofrecoraing the deed in connection with the conveyance.
9.1.3 All costs for the Inspections of the Property.
9.1.4 Fifty percent (50%) of the cost of the preparation of the Survey.
9.1.5 Fifty percent (50%) of the cost of the appraisal.
9.2 Seller shall pay the following expenses at Closing:
9.2.1 All documentary stamp taxes in connection with the deed of conveyance of
the Reai Property, which shall be based upon the Appraised Property Value.
9.2.2 All costs necessary to cure any title defects or encumbrances, other than
matters described in the Permitted Exceptions.
9.2.3 Fifty percent (50%) of the cost of the preparation of the Survey.
9.2.4 Fifty percent (50%) of the cost of the appraisai.
FTL 252247.5
9.3 The Seller and Buyer shall each pay their own attorney's fees in connection with
the negotiation and execution of this Agreement and the Closing of the transaction contemplated
by this Agreement.
10. PRORATIONS AND CP~D1TS
10.1 Real and personal property taxes (if any) and assessments shall be prorated for the
tax fiscal year in which the Closing Date occurs on the basis of the then most current assessed
value and tax rate available with respect to the Property and said fiscal year, Seller being charged
with said proration through the date prior to the Closing Date and Buyer with the Closing Date and
thereaRer. Such proration shall be recalculated upon the issuance of final bills for such taxes and
any amount due from one party by reason of such recalculation to the other shall be paid in cash at
that time. Seller shall pay and discharge on or before the Closing Date any assessment of any
public taxing authority which affects or is a lien upon the Property or any part thereof.
Notwithsta~dlng the foregoing, if the only tax bill available for the Property includes real property
which is not a part of the Property, then taxes will be prorated based on the number of gross
square feet of the Property's area compared with the total gross square feet of all land included in
the tax bill and the amount prorated for the remainder of the applicable tax year shall be paid by
Buyer to Seller at Closing. After the Closing, if a separate tax bill is ultimately issued for the tax
year in which the Closing occurs, then, upon request t~om Buyer, Seller shall remit to Buyer
Seller's prorata portion of the taxes due for the period through the date prior to the Closing Date,
plus the amount paid by Buyer to Seller at Closing as provided for in the immediately preceding
sentence. The provisions of this Section shall survive Closing.
10.2 Insurance. There shall be no prorations for insurance premiums, it being the
intention that Seller shall cancel all insurance coverage for the Property as of 3:00 P.M. on the
Closing Date. Buyer shall be responsible to procure its own insurance coverage for the Property
I 1. BROKER. Neither Buyer nor Seller has dealt with any real estate agent, broker or finder
in connection with the transaction contemplated by this Agreement. Each pa~cy hereby agrees to
indemnify (to the extent permitted by Florida law as provided in § 768.28 Florida Statutes), defend
and save the other harmless from the claims and demands of any real estate agent, broker or finder
claiming to have dealt with the indenmifying party in connection herewith. Each indemnity shall
include all costs and expenses incurred by the indenmified party in enforcing this indemnity,
including without I imitation, all attorney's fees and other professional c har§es. T he covenants
contained in this Section shall survive the Closing of the transaction contemplated by this
Agreement, or any termination of this Agreement.
12. RISK OF LOSS. Seller will have the risk of loss to the Property before the Closing,
whether due to governmental condemnation or casualty loss. If such event occurs or is threatened,
Seller will notify Buyer promptly, and Buyer may within ten (10) days after such notice elect to
t~w,inate this Agreement.
13. RIGHTS OF REPURCHASE.
13.1 For a period of thirty-six (36) months from the Closing Date, Seller shall have the
right to elect to repurchase the Property if (i) commencement of construction of the Proposed
FTL 252247.5
Improvements does not occur on or before twenty four (24) months from the Closing Date, or (ii)
completion of construction does not occur on or before thirty-six (36) months f~om the Closing
Date. Commencement of construction shall be defined as the pouring of the building slab and/or
footers. Completion of construction shall be defined as the issuance of a p~tmanent certificate of
occupancy for the Proposed Improvements or the opening of the Proposed Improvements for
business. Thc right of repurchase shall bc cxereised in accordance with the following provisions:
13.2 Election Notice. Seller may elect to exercise its rights of repurchase by giving
written notice thereof ("Election Notice") to Buyer. The Election Notice shall also be given by
Seller to any Institutional Mortgagee, as defined below, holding a mortgage on the Property if said
mortgagee has theretofore provided Seller with notice (in the manner provided herein) of its name
and address along with a copy of the mortgage it holds.
13.3 Reuurchase Price. The repurchase price ("Repurchase Price") to be paid by Seller
for the Property shall be equal to the higher of:
13.3.1 Buyer's actual out-of-pocket costs incurred in connection with improving
the Property, including without limitation, hard and "soft" development, construction,
architectural, engineering, planning and other costs (excluding interest on loans), less the balance
of any mortgages and liens paid or assumed by Seller in connection with such repurchase; or
13.3.2 the cost of releasing the Property from any construction and acquisition
mortgages or deeds of ffust held by Institutional Mortgagees (which costs shall be paid directly to
such Institutional Mortgagees), and Buyer shall be responsible for satisfying and releasing all
other liens and encumbrances.
In the case of Seller's election to exercise its repurchase rights as a result of the occurrence
of the events in (i) or (ii) of Section 13.1 above, then following the determination of the
Repurchase Price of the Property, the Seller may elect not to repurchase the Property by giving to
Buyer written notice within five (5) business days of the detr~fnation of the Repurchase Price,
whereupon Seller shall be deemed to have forever waived its repurchase rights hereunder, but such
waiver shall not waive any remedy which may be available to the Seller under this Agreement, at
law or in equity for breach of this Agreement by Buyer.
13.4 Indemnity. Buyer agrees to indemnify and hold harmless Seller f~m and against
any and all claims, damages, expenses (including reasonable attorney's fees and court costs) and
liabilities of any nature whatsoever asserted against or incurred by Seller in connection with any
mortgages, mechanic's liens, judgment liens and other matters pertaining to the Property arising on
or after the Closing Date not satisfied and released by Buyer or other~vise assumed by Seller or
otherwise satisfied and released by Seller and taken into the calculation of the Repurchase Price
under Section 13.3 above.
13.5 Closing. Closing on repurchase of the Property shnl! occur at the office of Seller or
such other place in the C ounly as Seller may designate. The date and time for closing on the
repurchase shall be specified by Seller in the Election Notice and be no sooner than ten (10) days
thereafter and no later than thirty (30) days after the Election Notice is given.
13.6 Title Insurance. At closing on the repurchase, Buyer shall deliver to Seller a
marked-up title commitment committing the title company to issue an owner's title insurance
FTL 252247.5
policy (ALTA Form B) issued by a duly licensed title insurer insuring title to the Property (and
any improvements located thereon) in Seller subject to only the l>~,,dtted Exceptions. Costs of
clearing title, and all other costs incurred incidental to reconveyance of the Property (including,
but not by way of limitation, recording fees) shall be paid by Buyer; provided, however, that the
costs of title insurance and documentary stamp tax shall be paid by Seller.
13.7 Institutional Mortgagee. In the event that Seller elects to exercise its fights to
repurchase pursuant t o t his S ecfion, any Institutional Mortgagee entitled t o receive an Election
Notice, may, within thirty (30) days of receipt of such notice, elect to assume Buyer's obligations
hereunder and promptly cure the default and proceed to complete construction in accordance with
the approved plans a nd specifications whereupon Seller s hall b e deemed t o waive i ts rights o f
repurchase as to the specific default, but not as to any future default hereunder. Any such election
shall be exercised by such Institutional Mortgagee giving written notice thereof to Seller in the
manner required herein whereupon the Institutional Mortgagee shall execute promptly formal
assumption documents, in such form and content as Seller may reasonably require. For purposes
of this Agreement, an "Institutional Mortgagee" shall mean only any bank: savings and loan
association, credit union, life insurance company or recognized real estate investment trust holding
a first mortgage on the Property to secure a loan for the sole purpose of financing acquisition of
the Property and/or construction of improvements thereon in accordance with plans and
specifications approved by Seller.
Seller's right to repurchase pursuant to this Section 13 is subject, subordinate and inferior
to all acquisition and construction mortgages or deeds of trust held by Institutional Mortgagees,
provided that Seller shall have the right to release the Property being repurchased from such a
mortgage or deed of trust by paying to the Institutional Mortgagee the release price for such
Property agreed to by Buyer and the Institutional Mortgagee in the mortgage or deed of trust.
However, all of Seller's rights to release the Property from a mortgage or deed of trust shall
t~J,~inate upon the issuance of certificates of occupancy or written approval of final inspection
from the applicable government agency, for all Proposed Improvements.
13.8 Memorandum of A~reement. A "Memorandum of Agreement" shall be recorded at
Closing to reflect the terms of this Section 13. This Section 13 shall automatically terminate upon
the earlier to occur of the following events ('~r=~,,ination Events"): (i) thirty-six (36) months from
the Closing Date; (ii) receipt of a certificate of occupancy or written approval of final inspection
from the applicable government agency with respect to the Proposed Improvements; or (iii) the
opening of the Proposed Improvements for business, and such termination shall be self-executing
and no further documentation shall be required from either party in order to evidence the same;
provided, however, notwithstanding the serf-executing nature of the foregoing t~afination upon
the occurrence of a Termination Event, Buyer shall have the right to unilaterally execute and
record in the Public Records of the County a document terminating the Memorandum of
Agreement and releasing same of record.
13.9 Rights and Remcdies Cumulative: Survival. Thc rights, remedies and options
granted to Seller pursuant to this Section 13 arc in addition to, and not exclusive of, any other
rights or remedies to which Seller is entitled hereunder, at law or in equity, or in any other
agreement, declaration, covenant or restriction which may be recorded in the public records of the
County. The provisions of this Section shall survivc Closing and delivery of the deed or
conveyance.
252247.5
13.10 Force Maieure. Notwithstanding anything contained herein to the contrary, in the
event commencement of construction or completion of construction, ns defined in Section 13.1
above, is delayed or hindered in or prevented as a result of any strike, lock-out, civil commotion,
warlike operation, invasion, rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or controls, inability to obtain any materials or service or through an act
of God or any other cause reasonably beyond the control of Buyer (each an "Event of Force
Majeure"), then the time for performance for such activities and all corresponding time periods
shall be extended on a day-for-day basis for a period equal to the unavoidable delay period caused
directly as a result of the Event of Force Majeure.
14. DEFAULT.
14.1 Buyer's Pre-Closing Default. In the event Buyer shall default in the performance
of its obligations under this Agreement prior to Closing, which default remains uncured for a
period of thirty (30) days after written notice thereof from Seller to Buyer, Seller's sole and
cxclusive remedy shall be to terminate this Agreement in full settlement of all claims of Seller
against Buyer arising from or related to this Agreement.
14.2 Buyer's Post-Closing Default. In the event that Buyer defaults in the provision of
Buyer's Services to Seller alter Closing, which default remains uncured for a period of thirty (30)
days after written notice thereof from Seller to Buyer, Seller's sole and exclusive remedy shall be
to recover Seller's actual damages from Buyer, which shall in no event exceed the Appraised
Property Value less the value of Buyer's Services which were actually provided by Buyer to
Seller.
14.3 Seller's Default. In the event that Seller defaults in the performance of its
obligations under this Agreement and such default rero~in.~ uncured for a period of thirty (30) days
after written notice thereof from Buyer to Seller, Buyer shall be entitled to either (i) terminate this
Agreement and recover all damages available at law or in equity, or (ii) compel the completion of
this transaction by specific performance; provided, however, that in the event that specific
performance is unavailable to Buyer, then Buyer shall have the right to seek all remedies available
at law or in equity. For purposes hereof, specific performance shall be considered unavailable to
Buyer if a court of competent jurisdiction determines conclusively that Buyer is entitled to specific
performance on the merits of its claim but said court is unable to enforce specific performance due
to reasons beyond the control of the court.
15. NOTICES. All notices, demands, requests and other communications hereunder will be in
writing and will be deemed to have been given (i) on the same business day if delivered
personally, (ii) three (3) business days following mailing by registered o r certified mail, return
receipt requested, postage pre-paid, (iii) on the date transmitted if sent by facsimile on a business
day with printed confirmation of transmittal (so long as such notice is also sent by another means
permitted under this section) or (iv) on the following business day if delivered by Federal Express
or other similar reputable national overnight delivery service, to either party at its address set forth
below.
FTL 252247.5
15.1
Seller:
CITY OF DELRAY BEACH
200 N.W. 1~t Avenue
Delray Beach, FL 33437
Phone: (561) 243-7091
Fax: (561) 2784755
At'm: City Attorney
And with a copy to:
15.2 Buyer:
MEDIA ENTERTAINMENT PRODUCTIONS, INC.
And with a copy to:
Gunster, Yoakley & Stewart, P.A.
Broward Financial Centre, Suite 1400
500 East Broward Boulevard
Fort Lauderdale, FL 33394
Atto: Danielle DeVito-Hurley
Phone: (954) 462-2000
Fax: (954) 523-1722
or at such other address as the party may specify from time to time by written notice to the other
party. Seller's and Buyer's attorneys are hereby authorized to send and receive notices hereunder
on behalf of their respective clients.
16. ATTORNEY'S FEES AND COSTg. In the event of any litigation arising out of this
Agreement, the prevailing party shall be entitled to recover all expenses and costs incurred,
including reasonable attorney's fees and paralegal charges. This Section shall survive the Closing
of the transaction contemplated by this Agreement or the termination of this Agreement.
17. GOVERNING LAW, VENUE AND JURISDICTION. This Agreement and all
transactions contemplated by this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Florida without regard to principles of enntlicts of
laws. The parties acknowledge that a substantial portion of negotiations and anticipated
FTL 252247.5
performance of this Agreement occurred or shall occur in Palm Beach County, Florida, and that,
therefore, without limiting the jurisdiction or venue of any other federal or state courts, each of the
parties irrevocably and unconditionally (a) agrees that any suit, action or other legal proceeding
arising out of or relating to this Agreement may be brought in the courts of record of the State of
Florida in Palm Beach Count]r, (b) consents to thc jurisdiction of such court in any such suit,
action or proceeding; (c) waives any objection which it may have to the laying of venue of any
such suit, action or proceeding in such court; and (d) agrees that service of any court paper may be
effected on such party by mail as provided in this Agreement, or in such other manner as may be
provided under applicable laws or court rules in said State.
18. TIME FOR ACCEPTANCE. ffthis Agreement is not fully executed by the Seller and an
executed or~nal hereof delivered to Buyer on or before March 18, 2004, at 5:00 p.m., eastern
standard time, it shall be null and void and neither party shall have any obligation hereunder.
19. CAPTIONS. The descriptive captions contained herein are for convenience only and shall
not control or affect the meaning or construction of any provision hereof.
20. INTEGRATION. This Agreement constitutes the entire agreement between the parties
hereto in respect of the subject matter hereof and supersedes any and all other written or oral
agreements, representations, documents, memoranda, and understandings between the parties
relating to such subject matter.
21. AMENDMENTS. The provisions of this Agreement may not be amended, supplemented,
waived or changed orally, but only by a writing, signed by the party as to whom enforcement of
any such amendment, supplement, waiver or modification is sought in making specific reference
to this Agreement.
22: BINDING EFFECT. TMs Agreament shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective legal representatives, successors and permitted assigns.
23. FURTHER ASSURANCES. The parties hereby agree from time to time to execute and
deliver such further and other transfers, assi..~nments and documents and do ali matters and things
that are legally required or reasonably necessary to more effectively and completely carry out the
intentions of this Agreement. This Section shall survive the Closing of this transaction
contemplated by this Agreement.
24. SEVERABILITY. If any part of this Agreement or any other Agreement entered into
pursuant hereto is contrary to, prohibited by or deemed invalid under applicable law or regulation,
such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder hereof shall not be invalidated thereby and shall be given full force and
effect so far as possible. Provided, however, that any pmvision which would be held invalid shall
be first construed so as to render the clause valid and enforceable, and in accordance with the
intentions of the parties as expressed by this Agreement.
25. THIRD PARTIES. Nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any persons other than the
parties hereto and their respective legal representatives, successors and permitted assigns, nor is
anything in this Agreement intended to relieve or discharge the obligation or liability of any third
FTL 252247.5
persons to any party to this Agreement, nor shall any provision give any third persons any right of
subrogation or action over or again.~t any pan'y to this Agreement.
26. REMEDIES CUMULATIVE. No remedy herein conferred upon any party is intended to
be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or othenarise. No single or partial exercise by any party ofeny fight, power or
remedy hereunder shall preclude any other or further exercise thereof.
27. WAIVERS. The failure or delay of any party at any time to require performance by
another party of any provision of this Agreement, even if known, shall not affect the right of such
party to require performance of that provision or to exercise any right, power or remedy
hereunder, and any waiver by any party of any breach of any provision of this Agreement should
not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of
the provision itself, or a waiver of any right, power or remedy under this Agreement. No notice to
or demand on any party in any case shall, of itself, entitle such party to any other or further notice
or demand in similar or other circumstances.
28. PREPARATION OF AGREEMENT, This Agreement shall not be cons~'ued more
stxongly against any party regardless of who is responsible for its preparation.
29. SURVIVAL. Except as otherwise specifically set fogdi in this Agreement, all of the terms,
conditions, representations, warranties, rights and remedies of the parties contained in this
Agreement shall survive the Closing Date and the conveyance of the Property to Buyer.
30. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
31. TIME OF ESSENCE. Time shall be of the essence with respect to Seller's and Buyer's
obligations as set forth in this Agreement.
32. BUSINESS DAY. If any date herein set forth for the performance of any obligations by
Seller or Buyer or for the delivery of any instrument or notice as herein provided should be on a
Saturday, Sunday or legal holiday, the compliance with such obligations or delivery shall be
deemed acceptable on the next business day following such Saturday, Sunday or legal holiday. As
used herein, the term "legal holiday" means any state or federal holiday for which financial
institutions or post offices are generally closed in the State of Florida for observance thereof.
33. RADON DISCLOSURES. Buyer acknowledges the following Radon Gas disclosures
required by Florida Statutes Section 404.056, Subsection 8.
RADON GAS: Radonis a naturally oeeurringradioactive gas that, when it has
accumulated in a building in sufficient quantifies, 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 county public health units.
FTL 252247.5
34. ADVICE OF COUNSEL. EACH PARTY ACKNOWLEDGES THATIT HAS BEEN
ADVISED BY ITS OWN COUNSEL WITH RESPECT TO THE TRANSACTION GOVERNED
BY THIS AGREEMENT, AND SPECIFICALLY W1TH RESPECT TO THE TERMS OF
SECTION 34, WHICH CONCERNS THE WAIVER OF EACH PARTY'S RIGHT TO TRIAL
BY JURY.
35. ]LrRy WAIVER. IN ANY CIVIL ACTION, COUNTERCLAIM, OR PROCEEDING,
VffffETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR
RELATES TO THIS AGREEMENT, ANY AND ALL TRANSACTIONS CONTEMPLATED
HEREUNDER, THE PERFORMANCE HEREOF, OR THE RELATIONSHIP CREATED
HEREBY, WHETHER SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, OR
OTHERWISE, TRIAL SHALL BE TO A COURT OF COMPETENT JURISDICTION AND
NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY. ANY PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT, AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO OF THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY. NEITHER PARTY HAS MADE OR RELIED UPON ANY
ORAL REPRESENTATIONS TO OR BY ANY OTHER PARTY REGARDING THE
ENFORCEABILITY OF THIS PROVISION. EACH PARTY HAS READ AND
UNDERSTANDS THE EFFECT OF THIS JURY WAIVER PROVISION.
[NO FURTHER TEXT ON THIS PAGE]
FTL~2~7.5
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in their
respective names, on the dates set forth below.
Signed, sealed and delivered
in the presence of.'
"Buyer'
MEDIAENTERTAINMENT
PRODUCTIONS (USA), INC., a Florida
corporation
B~.
Print Name:
TRIo:
ATTEST CITY CLERK:
CITY OF DELRAY BEACH, a Florida
municipal corporation
By:
Print Name:
Title:
Print name:
FORM APPROVED BY CITY A'tTORNEY:
Print name:
FTL 25224'7.5
SCI~F, DULE OF EX]qIIlVI'S
Exhibit "A" - Legal Description of Real Property
Exhibit ~B~ - Buyer's Services
Exhibit "C"- Declaration of Restrictive Covenants and Conditions
FTL 252247.5
EXI~IRIT "A"
"Legal Description"
Approximately 9,000 square feet of vacant land located on the southeastern comer of the parcel
commonly known as the City of Delray Beach "Tennis Center" which is bounded on the south by
West Atlantic Avenue and on the east by Northwest 1st Avenue, which is approximately 137 feet
in length from east to west from edge of curb and approximately 75 feet in length from north to
south from edge of curb.
Upon completion of the Survey pursuant to Section 4.3 of the Contract, this Exhibit "A" shall be
replaced with the legal description contained on the Survey.
FTL 252247.5
EXItlRIT "B'
Buyer's Services
From and al~er the Closing Date and in consideration for Seller's conveyance of the
Property to Buyer, Buyer hereby agrees to provide the following to Seller:
1. (a) Television Production: Buyer will feature the City on the Buyer's television series,
Architecture and Design Television (ADTV), as the lead story, on thirteen, one-half (½) hour
episodes. The series hosted by Hunter Tylo will hi~hlight the various phases of design and
construction of the Proposed Improvements to be designed by Michael Graves & Associates. This
shall include:
City featllred within some of the editorial content throughout the 13 part series.
City appears within the content of the design and construction of the building.
The series will air on networks such as CN-BC and Bravo as paid programming and Tech
TV based on Buyer's ultimate det~jmlnation of venue. Buyer will distribute the series to
approximately 80 million potential households for each of the 13 episodes.
In connection with the foregoing, City acknowledges and agrees that prior to any
appearance on the ADTV series by any employee or elected official of the City, such person shall
execute and deliver to Buyer a written authorization and release for such appearance, in form and
substance reasonably acceptable to Buyer.
Co) 13 Special 90 Second VNR's: Thirteen (13) 90 second Video News Release (VNR)
will be fully produced featuring a variety of Delray Beach Attributes: Beach and Ocean Activities,
Parks and Leisure, Atlantic Ave Restaurants and Shops, Hotels, Real Estate, Business Friendly
City, Residential areas, Tennis Center, City Government, Police and Fire, Multi-Cultural Events,
Future Development.
Each VNR will open a segment within the Architecture and Design Television series.
All 13 VNR's to be fully digitized to provide for a high quality format, ready for web site
inclusion
Mayor and President of Chamber of Commerce to serve on advisory panel to assist in
selection of subjects of 13 VNRs and otherwise provide creative input for highlighting City
of Delray Beach
(c) Streaming Video Intemet Broadcast: Video On-Demand' The thirteen VNRs will
be available to City on-demand digitized in streaming video accessible via the World Wide Web
24/7 to approximately 75 million PC users.
(d) License Rights and Copy of Customized Show Tap: City will be provides license
rights to use each VNR on City and Chamber Web Site and to use as individual tapes, CD's and
DVD's to use as mailers or as giveaways by the City and the Chamber of Commerce. Buyer will
provide City with a Beta SP for further duplication to be used for future promotions for City.
(e) Press Releases: City will be the subject of 1,000 emails of press releases
collectively from Hunter Tylo, Michael Graves and/or ADTV for the promotion of each of the 13
FTL 252247.5
episodes. These em/fils will notify readers of where and when they can view the show as well as
provide links for 24/7 on-demand viewing. Total of at least 13,000 dedicated emails to be sent
over the course of the series.
Estimated value of(a) through (e) above: $1,690,000 (note: to underwrite a ½ hour episode of
World Business Review or Life & Leisure and obtain comparable benefits is approximately
$130,000 per episode X 13 episodes)
2. Anoearance in Opening Introduction, Closing Titles and Vis~al.~: In addition to
undenYriting benefits above, for each of the thirteen {13) episodes, City will appear in the opening
introduction, visuals throughout and closing titles.
Estimated Value: $200,000
3. Show Credits. In addition to underwriting benefits above, for each of the thirteen (13)
episodes, the City, together with the City's web address, will be featured in the closing show
Estimated Value: $100,000
4. Press Releases: The city will appear in all press releases created by the show
(approximately 2 50,000 press releases). Releases will incorporate t he description o f t he s how,
Hunter Tylo, Michael Graves and the award winning producers along with why Buyer chose
Delray Beach as the exclusive City for this series.
Estimated Value: $100,000
5. City to be featured in Print and CD Rom in ADTV Bwchures: A full page graphically
designed print piece and City's inclusion on haifial Demo tape, along with show credits and Web
site info, discussing the City's selection as the exclusive City chosen for the series will appear in
hundreds of packages which will be sent to selected corporations throughout the country.
Estimated Value: $200,000
6. Tanes and DVDs: Buyer will provide City an additional I00 video tapes and/or DVDs
of the combined 13 VNRs in fully produced and packaged format.
Estimated Value: $10,000
7. Internet and New Media:
A full feature story about your City and why it was chosen for the ADTV show and what
benefits Delray offers for business to relocate will be featured on Arctv. com for one full
year;
Each of the 13 featured V'NR's to be featured separately on Arctv.com, with links to
pertinent information on each attraction highlighted in the applicable VNR;
Link.~ to your City home page and Chamber web s/re to be pwvided on every page of the
above (Minimum 20 pages).
FTL 252247.5
Estimated Value: $10,000
8. License Rights to Series: The City will receive a nonbmadcast license to nsc all or any
portion of the series for its own use (it being understood that City shall not be p~xu,itted to
broadcast the series over public airways without Buyer's consent), which series includes the
implicit endorsement of Hunter Tylo, as host, and Michael Graves, as architect.
Estimated Value: $500,000
9. Exposure on Alexander Haig's World Bnsiness Review: The Mayor and/or city official
will appear for a fifteen minute (or two separate seven minute) panel discnssion to promote the
city to World Bnsiness Reviews audience, which targets an Educated and Successful Business
Audience.
North American TV Exposure: 86 Million North American honseholds: CNBC, DirecTV
& Dish Network, TechTV, Bravo. As paid programming;
United Airlines In-Flight Programming: airs in main cabins and/or in-seat multi channel
viewing International flights;
International TV Exposure: Hong Kong - AsiaTV. Canada- major technology cities;
On-Campns TV/Curricula at Leading Universities: Approved for continuing education,
library reference or on campus TV stations at many universities such as Dartmouth, Notre
Dame, DePaul University, Georgetown, University of Florida, Georgia Tech, University of
Texas, New York University and more.
Streaming Video Broadcast - Video On-Demand: A library of 26 full-length episodes of
World Business Review will be available on demand via the world-wide-web in streaming
video. A hyperlink will be featured on WBRTV.com for three (3) full months.
Two Phase Corporate Executives & Manaoer~ E-Mall Data R~e: Up to 1,000 emall press
releases will be issued notifying recipients regarding the appearance. The email will also
have linkg to City web site as well as the World Business Review website.
Custom Demo Tape: Production ora cnstom demo tape will be introduced by General
Alexander Haig will contain the World Business Review show open, mission statement,
your 15 r~inute segment, end contact information. Limited license rights for you to use
your footage for non-television broadcast use.
Licensinz Riohts for Cnstom Demo Tape: Delray Beach will receive the Beta SP of the
Custom Demo Tape for non-television broadcast use.
On Location Field Report: Delray Beach will receive one half day on location shoot at the
one location within city limits.
Licensin~ Pdv. hts for On Location Field Footage~ Delray Beach to receive the Beta SP of
your raw field footage. Full license fights of all raw footage from the on location shoot to
use in any format.
Digitized Video: Delray Beach will be provided in digitized format to use on your web
site, in emalls end other electronic venues.
Estimated Value: $58,000
Total Estimated Value of Buyer's Services: $2~68,000
VI'L 252247.$
EXNIRIT C
RESTRICTIVE COVENANTS AND CONDITIONS
(TO BE ATTACI~.D TO SPECIAL WARRANTY DEED)
In consideration of the conveyance made in the deed to which these Restrictive Covenants
and Conditions are attached, Grantor hereby establishes, declares and prescribes that the Property
shall be owned, held, transferred and conveyed subject to the restrictive covenants and conditions
hereinafter set forth, which shall apply to and be covenants nmning with the Property; Grantee, its
successors and assignees, and every owner, present or past of the Property or any part thereof,
including any purchaser at a judicial sale Coy acceptance of a deed therefor, whether or not it shall
be so expressed in such deed of conveyance) hereby covenants and agrees to covenant, to comply
with, abide and be bound by these Restrictive Covenants and Conditions.
1. RESTRICTION ON USE. For a period of * * years from the recording
hereof, the Property may be used only for a mixed commercial use consisting of office, retail and
restaurant uses and for no other use or purpose whatsoever. No part of the Real Proper~y shall be
used for the purpose of operating a massage parlor, adult video store, nightclub, bar, package
store, * * [INSERT .4NY OTHER PROHIBITED USES DF~.VIRF. I) BY
C Trl.
2. DESIGN, CONTROL AND MAINTENANCE. It is specifically agreed and
acknowledged that Grantee, its successors and assigns, shall not re-plat, re-zone or subdivide all or
any portion of the Property, nor shall any building, driveway, parking area, walk, wall, sign, fence,
mailboxes, landscaping or any other s~,ucture or improvement whatsoever be constructed, erected,
placed or pe,,,,itted to remain upon the Property or any part thereof, nor shall any construction or
erection of any of the foregoing commence, until Grantor shall have approved in writing the
detailed plans and specifications for such construction and plot plan, building setbacks, building
heights and layouts of such plans, proposed improvement or landscaping. No cons/ruction,
alteration or addition shall change the external elevation, design or appearance of any
improvement or landscaping aider such improvement or landscaping has been constructed or
installed according t o plans o riginaily approved b y Grantor unless a nd until detalled plans a nd
specifications for such construction, alteration or addition have been approved in writing by
Grantor (it being understood that any change in the exterior appearance of any building, wall, or
other structure, sign o r improvement, a nd a ny change i n t he appearance o f t he 1 andscaping, a s
approved and installed initially, shall be deemed an alteration requiring approval).
Within thirty (30) days following Grantor's receipt of the detailed plans and
specifications from Grantee for any conslruction, alteration or addition to the Propen'y
(collectively, the "Plans"), Grantor shall notify Grantee of its approval or disapproval of the
proposed Plans, and, if disapproved, the specific reasons for such disapproval and the
modifications deemed necessary by Grantor in order for the proposed Plans to be acceptable
("Plan Disapproval Notice''). In the event Grantor docs not deliver to Grantee a Plan Disappwval
Notice within said thirty (30) day period, the proposed Plans, as subm/tted by Grantee, shall be
deemed approved by Grantor and Grantor shall have no further fight to object to same. In the
event Grantor timely delivers to Grantee, a Plan Disapproval Notice, Grantee shall revise the
proposed Plans to address Grantor's concerns or objections and resubmit same to Grantor within
FTL 252247.5
fifteen (15) days following Grantee's receipt of Grantor's Plan Disapproval Notice, whereupon
Grantor shall have fil~een (15) days following the receipt of Grantee's revised Plans to review
same and notify Grantee of its appwval or to deliver to Grantee a Plan Disappwval Notice. In the
event Grantor does not deliver to Grantee a Disapproval Notice within said fifteen (15) day period,
the revised Plans shall be deemed approved by Grantor and Grantor shall have no further tight to
object to same. The parties shall continue the foregoing process until the proposed Plans are
approved by Grantor.
3. CARE AND APPEARANCE OF PREMISES. No tents, trailers of any
description, whether readily movable or not, campers, motor homes, vans without side windows
other than for those in the front doors, shacks, tanks or temporary or accessory buildings or
structures, shall be placed or permitted to remain on the Property except those needed during
construction; and aRer the completion of construction of the structures on the Property and
issuance of all applicable final certificates of occupancy or acknowledgments of final inspection
(by the relevant local government agency), all such tents, trailers of any description, campers,
motor homes, vans, shacks, tank.~j temporary and accessory buildings or structures shall be
removed forthwith. However, Grantee and its successors in title shall be entitled to continue the
use of construction offices, in temporary buildings or trailers, during active construction and until
construction has been completed on the Property.
At all times during the course of construction of improvements and landscaping upon the
Property, construction debris of all kinds will be removed from the Property and adjoiniug streets
and when such construction is substantially completed, all debris, equipment and excess, surplus
or remaining construction materials, of whatever nature, shall be promptly cleared and removed
from the Property and all adjoining premises.
All utilities within the Prope~, whether in sR~et rights-of-way or utility easements or on
private property, shall be installed and maintained underground.
No weeds, underbrush o r other unsightly growths s hall b e p ~zmitted t o g row o r remain
upon the Property, and no waste paper, trash, refuse pile or unsightly objects shall be allowed to
be placed or s~ to remain anywhere on the Property. All garbage or trash containers must be
placed in walled-in areas so that they shall not be visible from the adjoirfing properties, or from
any street, or placed in containers as required by the Grantor.
At all times prior to construction of any improvements on the Properly, the entire surface
of the Property shall be maintained with grass which shall be properly maintained (i.e., watered,
fertilized, mown, etc.) to give the Prope~y a park-like appearance.
4. AMENDMENT TO RESTRICTIONS. Grantor may, with the approval and
joinder o f Grantee, modify, walve o r cancel t he restrictive covenants a nd conditions herein s et
forth, in whole or in part, at any time, or from time to time.
5. RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND. T he
restrictions, covenants, conditions, obligations, reservations, rights, powers and charges herein
provided for shall constitute a servitude in and upon the Property and every part thereof, and shall
nm with the Propen'y and inure to the benefit of and be enforceable by Grantor. Any failure to
enforce any restriction, covenant, condition, obligation, reservation, right, power, or charge herein
FTL 252247.5
contained shall in no event be deemed a waiver of the right to thereafter enforce any such
restriction, covenant, condition, obligation, reservation, right, power or charge.
6. REMEDIES FOR VIOLATION. Violation or breach of any restriction,
covenant, condition, obligation, reservation, right, power or charge herein set forth shall give
Grantor, in addition to all other remedies, the right to proceed at law or in equity to compel a
compliance with the terms of such violated or breached covenant, condition, obligation,
reservation, right, power or charge, and to prevent the violation or breach thereof (even if
compliance requires the demolition of improvements on the Property); and the expenses of such
litigation (including all appellate levels) shall be borne by the party losing such litigation.
In addition to, and not in limitation of the foregoing remedies, Grantor shall have the
following rights and remedies with respect to violations of the restrictive covenants, including,
without limitation, those set forth in ParanraDh 3 ("Care and Appearance of Premises") hereof:
Grantor shall give written notice to the Grantee, by posting such notice on the Property or
delivering such notice to any office or place of business of the Grantee on the Property or,
if no such office of place of bnsiness is kept or maintained on the Property, to any office
or place of buainess, wherever located, of Grantee, of any violation of these restrictive
covenants, and in the event that any such violation shall not be remedied or corrected by
or for and at the expense of the Grantee within thirty (30) days af[cr the date of delivery of
such notice, Grantor may, at Grantor's option, enter upon the Property and remedy and
correct any such violation at the cost of the Grantee. If, a~er Grantor has entered upon the
Property and remedied or corrected a violation that the Grantee has failed or refused to
remedy or correct aRer notice and the Grantee shall fail or refuse to pay to Grantor all
costs of remedying or correcting such violations reasonably paid or incurred by Grantor,
within thirty (30) days aRer the date of delivery of the bill(s) therefor, Grantor shall have,
and is hereby given and granted, a lien upon the Grantee's fight, title and interest in and to,
the Property for the amount of all such costs and expenses. Grantor's lien shall be
effective fi'om and after recording, in the public records of the County, a claim of lien
stating the description of that portion of the Property encumbered thereby, the name of the
Grantee, and the amount thereof. The amount of the lien claim shall include interest, from
the date Grantor paid or incurred the costs and expenses resulting in the lien claim, at the
highest rote permissible by law per annum, until paid to Grantor, and all attorneys' fees
incurred by Grantor in effecting collection. Such claims of lien shall be signed and
verified by an officer or agent of Grantor. Upon full payment of all sums secured by such
claim of lien, the same shall be satisfied of record. Grantor may bring action to foreclose
the lien against the encumbered Property in like manner as a foreclosure of a mortgage on
real property, or a suit on the personal obligation again.~t the Grantee or both, and there
shall be included in thc amount of such lien claim, thc court costs incurred in such action,
including attorneys' fees. The lien for which provision is herein made shall be subordinate
to the lien of any f~st mortgage to a federal or state chartered bank; life insurance
company, federal or state savings and loan association, credit union or real estate
investment trust. Such subordination shall apply only to lien claims which have been
recorded prior to a foreclosure sale or a conveyance in lieu of foreclosure. As used herein
"attorneys' fees" shall include those actually incurred by Grantor, regardless of whether
suit is brought or any appeal is taken therefrom.
FTL 252247.5
7. DURATION. These restrictions shall remain in effect fi~m thc date of recording
in the public records of the County, for a t~xm of twenty-five (25) years, and shall be automatically
extended for consecutive terms of twenty-five (25) years, unless the owner of the Property, joined
by Grantor, shall elect to terminate these restrictions upon the expiration of the then current term.
Termination shall be evidenced by an instrument in writing, executed by the then owner of the
Property and the Grantor, which shall be recorded in the public records of the County. These
restrictions may otherwise be t~x~inated by Grantor at any time, in Grantogs sole and absolute
discretion, by the execution and recordation of an instrument evidencing the same in the public
records of the County.
8. INVALIDITY OF CERTAIN PROVISIONS. If any term or provision of this
instrument or the application thereof to any entity, person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this insWament, or the application of such term or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this Insmunent shall
be valid and be enforced to the riffle, st extent p~mitted by law.
FTL 252247.5