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ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT TRADITION TOWERS THIS ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT (the “Agreement”) is made and entered into this _____ day of _______________, 2005, (the “Effective Date”) by and between the City of Orlando, Florida, a municipal corporation organized and existing under the laws of the state of Florida (City), the City of Orlando, Florida Community Redevelopment Agency, an entity created pursuant to Part III of Chapter 163, Florida Statutes (CRA), and Broad Street Partners, LLC, a North Carolina limited liability company authorized to do business in the state of Florida (Developer). WHEREAS, Developer is the contract purchaser of certain real property and improvements within the Downtown Orlando Community Redevelopment Area (Downtown Redevelopment Area) commonly known as the University Club, generally located on the west side of Rosalind Avenue between Central Boulevard and Pine Street, as more particularly described in Exhibit A, attached hereto (the “Property”); and WHEREAS, Developer desires to redevelop and revitalize the Property as a mixed-use residential, office and retail development to be know as the “Tradition Towers”, consisting of approximately three hundred eight (308) residential condominium units, approximately fifty five thousand (55,000) s.f. of office space, approximately eighteen thousand (18,000) s.f. of retail space (including an approximately 4,000 s.f. restaurant), a new approximately 35,000 s.f. University Club, and an approximately nine hundred (900) space parking facility (the “Project”); and WHEREAS, the CRA was created as a public body corporate and agency of the City of Orlando for the purpose of, among others, carrying out the community redevelopment purposes of Ch. 163, Part III, Florida Statutes; and WHEREAS, the CRA has adopted a Downtown Residential Investment Program that provides incentives for residential development in the Downtown Redevelopment Area through a tax increment recapture, and the residential portion of this Project is eligible for such incentives; and WHEREAS, the Project will help to achieve the goals of the Downtown Community Redevelopment Area Plan (Downtown Outlook) to provide a downtown mixed-use, multi-family, retail and office development, and to encourage other retail and office development in the vicinity of the Project; and WHEREAS, the City and CRA are committed to the continual redevelopment and revitalization of downtown Orlando, and like many cities and redevelopment agencies, have focused on economic development to improve the local economy by attracting business, creating jobs and expanding the tax base; and WHEREAS, the Florida Legislature has encouraged the use of public-private partnerships to rehabilitate and redevelop property within a Community Redevelopment Area; and ORLDOCS 10294303 4 WHEREAS, residential development is a key component to successful downtown revitalization, and provides public benefits in the form of an expanded tax base, increased retail demand, increased overall vitality, expanded customer base for existing businesses, efficient use of existing infrastructure and encouragement of responsible development patterns; and WHEREAS, the City and CRA desire to encourage and accelerate the timing of the Project, thereby generating additional tax increment revenue in the Downtown Redevelopment Area, enhancing the economic benefits to downtown Orlando, and providing stability and potential for future development of adjacent properties. NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, and such other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: Section 1. Recitals. The foregoing recitals are true and correct and are incorporated into and made a part of this Agreement as if fully set forth herein. Section 2. Definitions. The following terms shall have the following meanings: “CRA” means the City of Orlando, Florida Community Redevelopment Agency for which the City Council of the City of Orlando, Florida serves as the governing body, as previously designated and established by Resolution dated February 11, 1980. “CRA Debt” means all senior lien and second level junior lien debt service obligations of the CRA under bonds or other form of debt currently outstanding or to be issued in the future which pledge tax increment revenues on deposit in the Downtown Trust Fund (as defined herein). “Downtown Trust Fund” means the Redevelopment Trust Fund for the Downtown Community Redevelopment Area established pursuant to §163.387, Florida Statutes, into which are deposited the “increment revenues” (as defined in Section 163.340(22), Part III of Chapter 163, Florida Statutes) appropriated and paid each Fiscal Year by each taxing authority in connection with the Downtown Community Redevelopment Area. “Lender” means the bank or banks, or other financial institution or institutions, or other persons or entities primarily responsible for providing financing to the Developer for the construction of the Project. “Office Development” means the approximately fifty five thousand (55,000) s.f. of office space on floors 5 through 9 of the Project, all or a portion of which may be office condominiums, to be constructed by the Developer on the Property pursuant to plans and specifications approved by the City and Downtown Development Board Development Review Committee. “Parking Facility” means the approximately nine hundred space parking facility to be constructed by the Developer on the Property. “Project” means collectively, the Office Development, Residential Development, Retail Development and Parking Facility. 2 ORLDOCS 10294303 4 “Purchase Contract” means the Agreement of Purchase and Sale with an effective date of May 6, 2004 between the Developer, as Purchaser, and the University Club of Orlando, Inc., and Wall Street Holding Corporation, collectively, as Seller, as amended, for the Developer‟s acquisition of fee simple title or a long term ground lease to the Property with a scheduled closing date no later than November 29, 2005. “Residential Development” means the approximately three hundred twenty-five (325) residential condominium units (for sale) and related amenities located within two (2) approximately twenty-five (25) floor towers (the “Towers”) located above the Parking Facility, a portion of which may be operated as a hotel or suite hotel. “Retail Development” means the approximately eighteen thousand (18,000) s.f. of retail space (including an approximately 4,000 s.f. restaurant) on the ground floor of the Project fronting Pine Street, Rosalind Avenue and Central Boulevard, all or a portion of which may be retail condominiums, to be constructed by the Developer on the Property pursuant to plans and specifications approved by the City and Downtown Development Board Development Review Committee. "Tax Increment Recapture" means the percentage of the Tax Increment Revenue directly attributable to the Project to be provided to the Developer by the CRA pursuant to Section 4.A of this Agreement. “Tax Increment Revenue” means the “increment revenues” (as defined in Section 163.340(22), Part III of Chapter 163, Florida Statutes) deposited into the Downtown Trust Fund that are directly attributable to the Residential Development calculated in accordance with the formula set forth in section 163.387(1), Florida Statutes. For purposes of part (b) of the formula for calculating the Tax Increment Revenue, the base year value of the Residential Development shall be $2,910,342.00 (the “Base Year Value”). “Tax Parcel” means each unit of subdivided real property given a separate and distinct tax identification number by the Orange County Property Appraiser. “Taxable Assessed Value” means, for any Tax Parcel, the assessed value for property-tax purposes as determined by the Orange County Property Appraiser or, if applicable, the Value Adjustment Board or the Ninth Judicial Circuit. Section 3. Project Design and Construction. A. Design. Developer shall hire a licensed and certified architect (the “Architect”) to design the Project in accordance with all applicable laws, codes, statutes, ordinances, rules and regulations, including, but not limited to, the Orlando City Code, Florida Building Code and American With Disabilities Act. The Developer shall incorporate substantial building materials and high quality design to achieve outstanding civic architecture. The Developer has made a reasonable effort to use a local design team for the Project design. 3 ORLDOCS 10294303 4 B. Construction. The Developer shall hire a licensed and qualified contractor(s) to construct the Project on the Property (the “Contractor”) in a safe and professional manner and pursuant to, and in accordance with, plans and specifications approved by the City and Downtown Development Board Development Review Committee (the “Plans”). The Project shall be constructed in accordance with all applicable laws, codes, statutes, ordinances, rules and regulations, including, but not limited to, the Orlando City Code, Florida Building Code and American With Disabilities Act. C. Streetscape. The Developer shall replace the existing streetscape located adjacent to the Project along Central Boulevard and Pine Street that is damaged or removed during the construction of the Project, and shall install new streetscape improvements on Rosalind Avenue between Pine Street and Central Boulevard. All such replacement and installation of streetscape improvements shall comply with the Downtown Streetscape Design Guidelines. The Developer will be eligible for reimbursement of a portion of the cost to install new streetscape improvements on Rosalind Avenue pursuant to the CRA‟s streetscape reimbursement program. Section 4. Incentives. A. Downtown Residential Investment Program. (1) Tax Increment Recapture. The City and CRA have previously used tax increment revenues to encourage residential development in the Downtown Redevelopment Area pursuant to the Downtown Residential Investment Program. The City and CRA are proposing to provide tax increment revenues to the Developer pursuant to the Downtown Residential Investment Program in the form of a Tax Increment Recapture (as defined herein), contingent upon the Developer demonstrating, to the reasonable satisfaction of the CRA, its need for such Tax Increment Recapture, and providing the CRA with a market study report that demonstrates sufficient demand for the Residential Development. Provided that the real estate taxes levied on the Property are timely paid and the Developer complies at all times with the performance benchmarks referenced in section 11 below, the Tax Increment Recapture will be provided to the Developer (and not to individual condominium owners) on an annual basis over a twelve (12) year period (the “Recapture Period”) beginning on May 1 of the City‟s Fiscal Year (FY) that commences after January 1 after a C.O. is issued for the Project and the Orange County Property Appraiser assesses the value of the Project. For example, it is anticipated that the Project will be completed in calendar year 2007 so that the property taxes for the completed Project will be paid during the City‟s Fiscal Year (FY) 2008/2009 (i.e. after October 1, 2008). Therefore, the first of the twelve (12) annual tax increment recapture payments would be provided to the Developer no later than May 1, 2009; provided, however, that the Developer may elect to accelerate or defer for one (1) year the commencement of the Recapture Period. (2) Calculation of Tax Increment Recapture. The amount of the Tax Increment Recapture shall be a percentage of the Tax Increment Revenue. If the taxable assessed value of the Residential Development (as determined by the Orange County Property Appraiser, taking into consideration any allowable adjustments by the Value Adjustment Board) in any year during the Recapture Period exceeds the Base Year Value of $2,910,342.00, the Tax Increment Recapture shall equal thirty-five percent (35%) of the Tax Increment Revenue for years 1 through 4 ORLDOCS 10294303 4 4, 30% of the Tax Increment Revenue for years 5 through 8, and 25% of the Tax Increment Revenue for years 9 through 12. (3) Subordinate to CRA Debt. The Tax Increment Recapture shall be subordinate in all respects to all senior lien and second level junior lien debt service obligations of the CRA under bonds or other forms of debt currently outstanding or to be issued in the future, which pledge tax increment revenues on deposit in the Redevelopment Trust Fund for the Downtown Redevelopment Area. The Tax Increment Recapture is classified as a third level debt service obligation of the CRA and shall be in parity with all current and future third level debt service obligations of the CRA which pledge tax increment revenues on deposit in the Redevelopment Trust Fund for the Downtown Development Area. B. Height Restriction of Adjacent City-Owned Library Parking Garage. The estimated value of the completed Project is approximately $170,000,000.00 and the completed Project will significantly increase the tax increment revenue available within the Downtown Redevelopment Area by significantly expanding the tax base. In addition, the Project offers a unique design and high quality architecture that will help to reshape the downtown skyline. For these reasons, among others, the City is willing to assist in preserving the character of the Residential Development, and the view of its residents by placing a height restriction on the City- owned Library Parking Garage (the “Library Parking Garage”) located adjacent to the Property. To that end, the Library Parking Garage shall not be expanded, renovated or reconstructed to a height that would obscure the view of the residents of the Residential Development. (the “Garage Height Restriction”). The exact height of the Garage Height Restriction shall be mutually determined by the parties and included in the Memorandum described below. The purpose of this Garage Height Restriction is to insure that the westerly view from the residential units within the Residential Development is not obscured, thereby preserving the market and taxable value of such residential units within the Residential Development. A memorandum, restrictive covenant or other form of document (the “Memorandum”) describing the “Garage Height Restriction” shall be recorded in the public records of Orange County, Florida as a covenant running with the Property, and shall not be amended or terminated without the written consent of the Developer or the residential condominium owners‟ association (to be formed); provided, however, that the Memorandum and Garage Height Restriction may be terminated by the City without the consent of the Developer or residential condominium owners‟ association upon (i) the intentional demolition of the Residential Development, (ii) the unintentional destruction of all or a substantial portion of the Residential Development and the failure to rebuild the Residential Development to substantially the same condition as existed prior to such destruction [construction must be “commenced” (as defined in section 5.A below) within four (4) years from the date of such destruction, and construction must be completed and a Certificate of Occupancy issued within thirty (30) months from the date of commencement], (iii) a change in use of the Residential Development so that it is no longer used for residential purposes, (iv) conversion of the Residential Development from a condominiums form of ownership to multi-family rental (provided that rentals of individual condominium units shall not constitute a conversion); or (v) failure of the Developer or Lender to cure the Developer‟s material breach of this Agreement within the time periods described in section 15.A below. Upon the happening of any of the above events, the City and Developer or residential condominium association, as appropriate, shall execute and record a release of the Memorandum in the Orange County Public Records. 5 ORLDOCS 10294303 4 C. Additional Short-term Parking. While the Parking Facility will be designed and constructed to provide adequate parking to meet the parking demands of the Project, the demands for short-term (transient) parking may, from time-to-time, exceed the available supply of parking in the Parking Facility. In an effort to assist the Developer with such excess parking, short-term (transient) parkers to the completed Project may park in the Library Parking Garage on a first- come, first-serve basis at the prevailing hourly or daily rates, as applicable, for the Library Parking Garage. At the written request of the Developer, the City will provide a parking validation program for short-term (transient) parking associated with the completed Project. Section 5. Performance Benchmarks. The Tax Increment Recapture proposed to be provided to the Developer pursuant to section 4.A above is expressly contingent upon the Developer‟s compliance at all times with the following performance benchmarks: A. Commencement and Completion Dates. Construction of the Project shall be commenced within twenty-four (24) months from the Effective Date. The Project shall be completed and a C.O. for the shell of the Residential Development issued within thirty (30) months from the commencement of construction. For purposes of this section, the terms “commenced” and “commencement of construction” shall be defined as having received an approved foundation inspection for the Project. The Developer shall provide the City and CRA with a final construction schedule showing commencement and completion dates for the Project. B. Retail. The Retail Development shall include ground floor retail along Central Boulevard, Rosalind Avenue, and Pine Street. C. Restaurant. The Developer will make a good-faith effort to cause the Retail Development to include a full service restaurant with outdoor dining. D. Special Event Funding. The Developer shall fund or provide in kind donations of $3,000 annually for the life of the agreement to community special events as approved by the City‟s Downtown Development Board. E. Window Design. Design of the Project shall include at least 40% open clear windows in the lower fourteen (14) feet of the ground floor of the Project along Central Boulevard, Pine Street and Rosalind Avenue. F. Public Art. The Developer shall provide public art consisting of paintings, photographs, drawings, sculptures, murals, mosaics, frescoes or other works of art, or any combination thereof, as determined by the Developer, which public art shall be located within the lobby of the Office Development, and be available for viewing by the general public from the public right-of-way. G. Local Artists. At least 33% of the public art required to be located in the Office Development lobby pursuant to subsection F above shall consist of artworks by local Central Florida artists. In addition, at least three (3) times per calendar year the Developer shall hold an exhibit of artwork by local artists in the lobby of the Office Development. Each such exhibit shall be for a minimum duration of one (1) month. In addition, the Developer shall make a 6 ORLDOCS 10294303 4 reasonable effort to schedule additional rotating exhibits of local artists. The contents of the exhibits shall be determined in the sole discretion of the Developer. H. Timely Payment of Taxes. Developer shall timely pay the annual Orange County Real Property Tax Bill for ad valorem real property taxes levied in Orange County, Florida owed by Developer on any portion of the Property owned by Developer. I. MBE/WBE Participation. The Developer shall require its contractor(s) to comply with Articles II and III of Chapter 57 of the Orlando City Code (the “M/WBE Ordinance”) relating to the participation of minority business enterprises (MBE) and women business enterprises (WBE) in the construction of the Project. The Developer is encouraged to exceed the minimum MBE/WBE goals established in the M/WBE Ordinance, and the City will assist the Developer in its effort to exceed such goals. The Developer shall require its contractor(s) to submit quarterly reports in a format acceptable to the City and the MBE/WBE Department, documenting MBE/WBE firms used, their scopes of work, dollar value of contracts, work performed to date, and dollar amounts paid to date. The initial report shall be submitted to the City‟s MBE Director within forty-five (45) days of the Effective Date of the Incentive Agreement to be executed between the City, CRA and Developer. At the City‟s sole risk and expense, a City MBE/WBE Compliance Officer may visit the job site and may interview firms and employees in order to observe and document participation by MBE/WBE firms and minority and women employees. J. Living Wage. The Developer shall pay to all of its employees, contractors and first tier subcontractors providing services to the Project, a living wage for the time spent providing such services (This provision does not include general administrative personnel). “Living wage” means compensation for employment of not less than $8.50 per hour for straight time, exclusive of FICA, unemployment taxes, and workers compensation insurance and employee benefits. Necessary payroll documentation shall be provided to confirm compliance with this provision or the Developer shall allow the City to audit (at Developer‟s place of business) its payroll records to determine if compliance has been achieved. K. Responsible Contractor‟s Policy. The Developer shall require its contractor (hereinafter “Contractor”) to pay the workers for work done on the Project an hourly wage, based on classification, for the Orlando region established by the Davis-Bacon Act (40 U.S.C. 276a-7) as supplemented by the Department of Labor regulations (29 CFR part 5) (hereinafter “hourly wage”). Additionally, the Contractor shall provide said workers with health benefits. The Contractor may satisfy this health benefits requirement by providing to the workers on this Project either 1) health benefits through a bona fide program or 2) by increasing the hourly wage by 20%. Evidence of the existence of a bona fide health benefits program, satisfactory to the City, must be submitted to the City‟s Public Works Department. Payment of the appropriate wages must be documented in the Contractor‟s progress payment applications by the submission of certified payrolls by the Contractor for the duration of the Agreement. Moreover, the Developer shall require that the Contractor include this provision in its contracts with all subcontractors and the Developer will be held responsible for compliance by any subcontractor or lower tier subcontractor. Notwithstanding the foregoing, the Developer acknowledges and agrees that no hourly wage paid on this Project will be less than the living wage referenced in Subsection J above. 7 ORLDOCS 10294303 4 L. Purchase Contract/Construction Loan/MPB Approval. Within one hundred eighty (180) days from the Effective Date, the Developer shall provide the City and CRA with evidence reasonably acceptable to the City of the following: (1) Purchase Contract. A fully-executed copy of the Purchase Contract, which evidence may be in the form of an affidavit duly executed by the Developer and seller(s) of the Property evidencing the Purchase Contract; (2) Construction Loan. A binding construction loan from an institutional lender in an amount adequate to finance the construction of the Project, less the amount of Developer equity, and evidence of the Developer‟s compliance with all conditions precedent to funding of the loan. (3) MPB Approval. Municipal Planning Board (MPB) approval of all aspects necessary to develop the Project on the Property. In providing the City and the CRA with satisfactory evidence of the above items (reasonably acceptable to the City), the Developer shall be entitled to exclude and/or delete any financial or other proprietary information from any applicable documentation and, notwithstanding any other provision herein to the contrary, the Developer shall not be required to disclose any financial or other proprietary information pertaining to the Project. Section 6. Covenants and Representations of Developer. The Developer hereby covenants, represents, and acknowledges the following covenants and representations that the City and CRA have relied upon in agreeing to provide the Residential Catalyst Incentive described herein: A. Acquisition of Property. The Developer is the contract purchaser of the Property pursuant to the Purchase Contract and will acquire a long-term ground lease or fee simple title to the Property on or before the scheduled closing date of November 29, 2005, or any extension thereof, but in any event no later than twenty-four (24) months following the effective date of this Agreement (the “Closing Date”). B. Payment of Taxes. All ad valorem real estate taxes assessed against the Property that are due and payable through the Closing Date shall have been paid in full at or prior to the closing of the Developer‟s purchase of the Property. C. Taxable Value of Property. Once the Developer acquires a long term ground lease or fee simple title to the Property, the Developer shall not intentionally take any action or omit to take any action that would cause the taxable value of the Property (excluding individual residential condominium units, if applicable) to materially diminish (other than as provided by law to petition the Value Adjustment Board or to otherwise challenge the property appraiser‟s valuation). The Developer shall provide written notice to the City of the Developer‟s filing a petition with the Orange County Value Adjustment Board with respect to the valuation assigned to the Property by the Orange County Property Appraiser. Such notice shall be provided to the City within fifteen (15) days of the filing of the petition. 8 ORLDOCS 10294303 4 D. Material Changes and Delays. The Developer shall immediately notify the City‟s Chief Financial Officer (CFO) and the CRA‟s Executive Director in writing upon becoming aware of any actual or reasonably anticipated material delays in the construction of the Project. E. Construction Schedule. The Developer shall provide the City and CRA with a preliminary construction schedule showing the anticipated completion dates for the Project, and any updated construction schedules that show substantial changes to the preliminary schedule during the course of construction. Section 7. Covenants and Representations of City. The City hereby covenants and represents the following: A. To the extent reasonably feasible, the City will cooperate with and assist the Developer in connection with the Developer‟s application for the required FAA approval of the Project. B. The Developer may assign particular names to squares and intersections located within and adjacent to the Project, subject to the City‟s approval, which shall not be unreasonably withheld, conditioned or delayed. Section 8. Annual Status Reports. Developer shall submit to the City by no later than each January 31st, commencing January 31, 2006, annual status reports evidencing and certifying compliance with the Performance Benchmarks and the Covenants and Representations contained in sections 6 and 7 above, such annual status reports to be in a form reasonably acceptable to the City‟s CFO and the CRA‟s Executive Director. Section 9. Utility Service Provider. The Developer shall use the Orlando Utilities Commission (“OUC”) to provide electric utilities and water service to the Project at the prevailing OUC electric and water rates pursuant to an agreement between OUC and the Developer. The Developer shall use chilled water services provided by OUCooling at the prevailing chilled water rates for the OUCooling district in which the Project is located pursuant to an agreement between OUC and the Developer. Section 10. City Communications Services. Developer agrees to exclusively use the City or City-selected contractor(s) to provide video programming, telecommunications, high-speed internet and other broadband services (hereinafter “Services”) for the Project to the extent allowed by law, subject to the following: If Developer receives and desires to accept a bona fide offer (a “Services Offer”) from a communications provider to provide Services to be provided by the City or City-selected contractor(s), which Services Offer may include rates for the Services, infrastructure installation costs to be charged to Developer, and other charges to be payable by Developer or its successors, and other proposed material terms and conditions (including, but not limited to, the demonstrable ability to deliver the Services through high quality technology and service), Developer shall deliver, at a commercially reasonable time, written notice to City of such Services Offer, and the terms and conditions of such Services Offer. City shall have the right to match the Services Offer on substantially the same terms and conditions set forth in Developer‟s notice to City by providing written notice to Developer of the City‟s decision to 9 ORLDOCS 10294303 4 match the Services Offer within thirty (30) days after receipt of Developer‟s notice of the Services Offer (hereinafter “Election Period”). If City elects not to exercise its right of first refusal, or fails to deliver notice of exercise of the right of first refusal prior to expiration of the Election Period, Developer may contract for services pursuant to the Services Offer on substantially the same terms and conditions set forth in Developer‟s notice to City. If City matches the Services Offer, or if Developer‟s contracting for the Services pursuant to said Services Offer is not completed, then City, to the extent provided by law, shall be the exclusive Services provider to the Project subject to the following. If Developer or its successors subsequently receives and desires to accept a bona fide Services Offer from a communications services provider to provide all of the Services as those then provided by the City or City-selected contractor(s), at rates or other material terms and conditions (including, but not limited to, the demonstrable ability to deliver the Services through high-quality technology and service) more favorable than those offered by the City or City-selected contractor(s) for all such Services, Developer or its successors shall deliver written notice to City of such Services Offer, including the terms and conditions of such Services Offer, which will initiate the election procedure set forth above for such subsequent Services Offer. Section 11. Communication Antennae. The Developer will allow the City to place communication antennae and related equipment and electronics (Antennae Facilities) on the roofs of either or both of the Towers, at the City‟s cost, for use by the City and other governmental agencies for communications or other technological needs, subject to the following: (a) the location and number of such antennae will be mutually agreed upon by the City and Developer, such agreement not to be unreasonably withheld by the Developer; (b) the antennae shall not adversely impact the Project, the FAA approval, or the appearance or architectural integrity of the Residential Development and, any such antennae will be located in the most inconspicuous location possible including underneath or inside the roof structure; (c) Developer shall not be required to incur any material out-of-pocket costs associated with the Antennae Facilities (d) the City shall reimburse Developer for any material out-of-pocket additional costs incurred by the Developer as a result of the Antennae Facilities; (e) the parties shall each accommodate the reasonable requirements of the other, including cooperation to avoid or eliminate any interference between the parties‟ respective communication systems located on the Residential Development; (f) the City shall be allowed reasonable access to the Antennae Facilities for repair and maintenance; (g) the City‟s placement of the Antennae Facilities on the roof shall comply with all applicable federal, state and local laws, statutes, ordinances, codes, rules and regulations; (h) subject to the City‟s sovereign immunity under Florida law, the City shall indemnify and hold harmless the Developer from and against any liability and damages caused by the City‟s installation and operation of the Antennae Facilities as provided for herein and (i) no rent shall be paid by the City for the placement and operation of the Antennae Facilities. The forgoing Antennae Facilities shall not be used by any entities other than the City and governmental agencies or their authorized agents. The City shall not install Antennae Facilities that would void any roof warranties on the Residential Development. The City shall be responsible for the repair of any damage caused to the roof by the installation or operation of the Antennae Facilities. The City shall maintain and repair the Antennae Facilities, and releases the Developer from any liability for damage to the Antennae Facilities, unless such damage is caused by the sole negligence or intentional acts of the Developer. Nothing contained herein shall prohibit the Developer from placing communication antennas and related equipment on the Residential Development in accordance with all applicable federal, state and local laws, statutes, ordinances, 10 ORLDOCS 10294303 4 codes, rules and regulations. The electronics will be installed in a secure area not to exceed 100 square feet, the exact dimension of which shall be determined by the mutual agreement of the parties, and will be connected to an available power source, or if no power source is available, then the City may install a power generator, at its cost. The Developer will also allow the City to install within the available conduit of the Tower or Towers, as applicable, the cable necessary for the operation of the equipment. In order to insure that the City‟s communication service is provided on a continuous and uninterrupted basis to protect the health, safety and welfare of the residents and guests of the Project as well as the general public, this section and the rights and obligations set forth herein shall survive the expiration or earlier termination of this Agreement. Section 12. Performance and Payment Bonds. Developer shall require the Contractor to provide a Performance Bond and a Labor and Material Payment Bond each in an amount not less than the aggregate construction costs of the Project (base buildings, core and shell), less amounts covered by subcontractors bonds, provided that 100% of the construction cost of the Project is bonded in aggregate. To be acceptable as Surety for Performance Bonds and Labor and Material Payment Bonds, a Surety Company shall comply with the following provisions: A. The Surety Company shall have a currently valid Certificate of Authority, issued by the State of Florida, Department of Insurance, authorizing it to write surety bonds in the State of Florida. B. The Surety Company shall be named in the most current listing of “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” as published in Circular 570 by the U.S. Department of the Treasury. C. The Surety Company shall be in full compliance with the provisions of the Florida Insurance Code. D. The Surety Company shall have at least an “A-” financial strength rating in accordance with the most current A.M. Best Company ratings. E. If the surety on any Bond furnished by the Contractor is declared bankrupt or becomes insolvent or if its assets are acquired by regulatory agencies or if liquidation proceedings begin or its license to do business in the state is terminated or it ceases to meet the requirements of this Section 12, Developer shall require the Contractor to substitute an acceptable surety and provide Performance and Labor and Material Payment Bonds to the City within ten (10) business days of obtaining actual knowledge of the occurrence of any such event. Section 13. Insurance. The Developer shall require the Contractor to provide the following types and amounts of insurance with an insurer rated A- or better by A.M. Best: A. Commercial General Liability Insurance coverage in the minimum amount of Five Million Dollars ($5,000,000) for bodily injury (or death) of, and One Million Dollars ($1,000,000) property damage. B. Full and complete Workers‟ Compensation Insurance Coverage as required by State of Florida law. 11 ORLDOCS 10294303 4 C. Automobile Liability Insurance coverage in the minimum amount of One Million Dollars ($1,000,000) per occurrence for BI/PD, including hired/non-owned vehicles regardless of number of passengers transported. The Developer shall provide the City and CRA with a certificate of insurance evidencing the required coverage within ten (10) calendar days of the Effective Date, and shall furnish the City evidence of renewals of each such policy no less than thirty (30) days prior to the expiration of the applicable policy. Section 14. Indemnification. The Developer agrees to indemnify and hold harmless the City and CRA, their elected and appointed officials, from and against any and all liability, losses, claims, demands, damages, fines, fees, expenses, penalties, suits, proceedings, actions and cost of actions, including reasonable attorney‟s fees for trial and on appeal, of any kind and nature arising or growing out of or in any way connected with the design and construction of the Project by the Developer or its Contractor, Architect and consultants (“Claims”), other than Claims resulting from the negligent acts or omissions or willful misconduct of the City or CRA, or any of their respective elected or appointed officials, employee, agents or representatives. Section 15. Default and Remedy. A. Developer‟s Default. Subject to Force Majeure (as defined in section 33 herein), the Developer‟s failure to comply at all times with its obligations contained herein, including, but not limited to, the Performance Benchmarks and the Covenants and Representations described in sections 5 and 6 above, shall be a material breach of this Agreement (“Event of Default”). Upon such Event of Default, the City and CRA may suspend the payment of the incentive payments contemplated hereunder until such Event of Default is cured to the reasonable satisfaction of the City and CRA within the required time periods described below. The City or CRA shall provide written notice of such Event of Default to the Developer (“Notice of Default”), and the Developer‟s failure to cure such Event of Default within thirty (30) calendar days from the date of its receipt of the Notice of Default (the “Initial Cure Period”) shall result in the immediate termination of this Agreement and the incentives provided for herein, provided, however, that if the nature of the Event of Default is such that it cannot reasonably be cured within such 30 day period, then the Developer shall have up to an additional ninety (90) days (as determined in the City‟s reasonable discretion) to cure such Event of Default (the “Extended Cure Period”) provided that it diligently undertakes and pursues such cure, and further provided that the Developer provides the City with documentation evidencing that it is diligently undertaking and pursuing such cure to the City‟s reasonable satisfaction, but in any event, the Developer shall not have more than one hundred twenty (120) days from its receipt of the Notice of Default to cure the Event of Default. The failure to cure Event of Default within the time period provided for above shall result in the immediate termination of this Agreement. In the event of such termination, all incentive payments contemplated hereunder shall immediately cease and the obligation to provide such incentives shall be forever discharged, and the Developer shall reimburse the City the full amount of any incentives provided to the Developer as of the date of termination. Additionally, City shall 12 ORLDOCS 10294303 4 have the right to require the Developer's specific performance under the terms and conditions of this Agreement. B. City/CRA Default. In the event that the City or CRA materially defaults in any of their respective obligations contained herein, including, but not limited to the obligation to provide the incentives, and fails to cure such default within thirty (30) calendar days from the date of its receipt of written notice of such default from the Developer, then the Developer shall have the right to require the City‟s and/or CRA‟s specific performance under the terms and conditions of this Agreement. If the Developer prevails in any legal proceeding requiring the City or CRA to pay an economic development incentive provided for herein, then the City or CRA, as applicable, shall pay interest on the amount due at the rate of 200 b.p. over 30 day LIBOR. C. Lender‟s Right to Cure. If the Developer provides the City with the name and address of the Lender, then the City shall provide the Lender with a copy of the Notice of Default and the opportunity to cure the Event of Default on behalf of the Developer under the same terms and conditions as provided herein, provided, however, that if the Event of Default cannot practically be cured by the Lender without the Lender taking possession of the Property, then the City shall grant the Lender such additional time as is reasonable necessary in order for the Lender to obtain possession of the Property and cure such Event of Default, provided that the Lender diligently undertakes and proceeds to obtain possession of the Property and cure such Event of Default, and further provided that the Lender provides the City with documentation evidencing that it is diligently undertaking and proceeding to obtain such possession and cure such breach to the City‟s reasonable satisfaction, but in any event, the Lender shall not have more than one hundred eighty (180) days from the end of the Initial Cure Period or Extended Cure Period described in section 15.A above, as applicable, to cure such breach. Section 16. Assignment. A. Assignment of Incentive Agreement. 1. Primary Assignment. The Owner may assign all of its right, title and interest in, and its obligations under this Incentive Agreement to one or more single purpose entities created specifically for the development of the Project and that is/are at least 25% owned and controlled by the Developer or to one or more condominium owner associations (the “Primary Assignee”), without the prior consent of the City or CRA, but provided that such assignment is not effective as to the City and CRA until such time as the City and CRA receive written notice of such assignment (“Primary Assignment”). The notice shall contain the Primary Assignee‟s name, address, telephone and facsimile number and such other information relating to the Primary Assignee as the City may reasonably require. 2. General Assignment. The Developer may assign all of its right, title and interest in, and its obligations under, this Agreement to a person or entity other than the Primary Assignee upon the prior, written consent of the City and CRA, such consent not to be unreasonably withheld, conditioned or delayed („General Assignment”). The Developer shall provide the City and CRA with written notice of such proposed General Assignment along with the name, address and such financial information relating to the proposed assignee as the City or CRA may 13 ORLDOCS 10294303 4 reasonably require (the “Assignment Information”). The City shall notify the Developer of its‟ and the CRA‟s approval or disapproval of the proposed General Assignment within thirty (30) days from its receipt of the notice and Assignment Information. The City‟s failure to notify the Developer within such thirty (30) day period shall constitute its approval of the General Assignment. In determining whether or not to consent to the proposed General Assignment, the City shall consider, among other factors, the reputation, experience and financial ability of the proposed assignee and whether or not the assignee is not “in good standing” with the City. Upon approval of the General Assignment, the assignment instrument shall be sent to the City and must include the street address, phone number and facsimile number of the assignee. Such contact information shall be used by the parties under the notices provision herein. B. Assumption. In connection with the Developer‟s assignment of this Agreement pursuant to subsections A.1 and A.2 above, either the Developer shall remain responsible for, or the assignee must assume in writing, the responsibilities, obligations and duties associated with the interests being assigned by the Developer. Upon the assignee's assumption of such responsibilities, obligations and duties, the Developer shall be relieved of same. C. Third Parties. The interests of the Developer in this Agreement are personal to it and although its interests may be expressly assigned in accordance with the provisions of this section, they do not run with the land. The Agreement has been entered into for the benefit of the parties and there are no third party beneficiaries. Unless expressly granted in a written instrument executed by Developer and approved by the City and CRA, third parties acquiring any indicia of ownership in the Property or any portion of the Project shall not, by virtue of such acquisition or otherwise, acquire or receive any right, title or interest whatsoever in any of the incentives, monetary payments or benefits to arise or be made by the City or CRA under this Incentive Agreement, except for the Memorandum of the Garage Height Restriction, which shall benefit the owners of the Residential Development as a covenant running with the land. Section 17. Resolving any Invalidity. The parties hereby agree that in the event the Tax Increment Recapture is ever challenged by any person and held to be invalid by a court of competent jurisdiction, each will cooperate with the other, in good faith, to resolve the invalidity. Section 18. Bankruptcy. In the event (a) an order or decree is entered appointing a receiver of the Developer or its assets, which is not appealed (or if appealed is determined adverse to the Developer) or (b) a petition is filed by the Developer for relief under federal bankruptcy laws or any other similar law or statute of the United States, which action is not dismissed, vacated or discharged within sixty days after the filing thereof, then the City shall have the right to terminate immediately this Agreement. Section 19. No Liability or Monetary Remedy. The Developer hereby acknowledges and agrees that it is sophisticated and prudent in business transactions and proceeds at its own risk under advice of its own counsel and advisors and without reliance on the City or CRA, and that the City and CRA bear no liability for direct, indirect or consequential damages. The only remedy available to the Developer for any breach by the City or CRA is to require the City‟s or CRA‟s specific performance under the terms and conditions of this Agreement. 14 ORLDOCS 10294303 4 Section 20. Severability. Any provision of this Agreement held by a court of competent jurisdiction to be invalid, illegal or unenforceable shall be severable and shall not be construed to render the remainder to be invalid, illegal or unenforceable. Section 21. Effective Date and Term. This Agreement shall become effective on the Effective Date first written above, and end, subject to the termination and severability provisions set forth herein, upon satisfaction in full of all of the obligations of the parties. Section 22. Relationship. This Agreement does not evidence the creation of, nor shall it be construed as creating, a partnership or joint venture among the City, the CRA, and the Developer. The Developer cannot create any obligation or responsibility on behalf of the City or the CRA or bind the City or the CRA in any manner. Each party is acting for its own account, and it has made its own independent decisions to enter into this Agreement and as to whether the same is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. Each party acknowledges that none of the other parties hereto is acting as a fiduciary for or an adviser to it in respect of this Agreement or any responsibility or obligation contemplated herein. The Developer further represents and acknowledges that no one was paid a fee, commission, gift or other consideration by the Developer as an inducement to entering into this Agreement. Section 23. Personal Liability. No provision of this Agreement is intended, nor shall any be construed, as a covenant of any official (either elected or appointed), director, employee or agent of the Developer, City or the CRA in an individual capacity and neither shall any such individuals be subject to personal liability by reason of any covenant or obligation of the Developer, City or the CRA hereunder. Section 24. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Any action, in equity or law, with respect to this Incentive Agreement must be brought and heard in Orange County, Florida. Section 25. Amendment. This Incentive Agreement may not be amended, unless evidenced in writing and executed by all parties hereto. Section 26. Notices. Any notices required to be given hereunder shall be effective upon receipt and sent by either facsimile, hand-delivery, U.S. mail, first class, postage prepaid, or by certified or registered mail (return receipt requested) to the following addresses: To the City: City Clerk City of Orlando 400 South Orange Avenue, 2nd Floor Orlando, Florida 32801 Telephone: (407) 246-2251 Facsimile: (407) 246-3010 (With copy to the City Attorney (Facsimile: (407) 246-2854)) 15 ORLDOCS 10294303 4 and Chief Financial Officer City of Orlando 400 South Orange Avenue, 4th Floor Orlando, Florida 32801 Telephone: (407) 246-2341 Facsimile: (407) 246-2707 To the CRA: Community Redevelopment Agency 201 South Orange Avenue, Suite 1230 Orlando, Florida 32801 Attention: Executive Director Telephone: (407) 246-2555 Facsimile: (407) 246-3359 To Developer: Broad Street Partners, LLC 250 Park Avenue South, Suite 200 Winter Park, FL 32789 Attention: Stephen R. Walsh, Managing Partner Telephone: 407-647-3290 Facsimile: 407-647-7865 and Shutts & Bowen LLP 300 South Orange Avenue Lincoln Plaza, Suite 1000 Orlando, Florida 32801 Attention: Michael J. Grindstaff Telephone: 407-835-6927 Facsimile: 407-425-8316 The parties hereby agree to notify each other of any change of address. Section 27. Captions. The captions and headings of sections or paragraphs used in this Agreement are for convenient reference only and shall not limit, define or otherwise affect the substance or construction of provisions of this Agreement. Section 28. No City/CRA Security. In no event shall the City or CRA be required to provide security for repayment of any portion of any outstanding loans to the Developer with respect to the Property nor shall the City or CRA be obligated under any mortgage or promissory note as the same relate to the Property. Section 29. Permits. The Developer shall obtain all state and local permits or other governmental authorizations and approvals required by law in order to construct the Project on the Property. 16 ORLDOCS 10294303 4 Section 30. Compliance with Laws. The Developer shall at all times be in compliance with all applicable federal, state and local laws, statutes, rules and regulations, including, but not limited to the Orlando City Code and City Code sections pertaining specifically to planning, zoning and permitting. This paragraph is not intended to preclude the City from granting the Developer certain waivers, exemptions or variances under the Orlando City Code as allowed therein. Section 31. Survey. The Developer shall provide the City and CRA with a survey of the Property, with a legal description or descriptions thereof, certified to the City and CRA prior to the City‟s execution of the Garage Height Restriction. Section 32. Entire Agreement; Conflicts. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof. Any representations or statements heretofore made with respect to such subject matter, whether verbal or written, are merged herein. Section 33. Force Majeure. The parties shall use reasonable diligence to ultimately accomplish the purpose of this Agreement but shall not be liable to each other, or their successors or assigns, for breach of contract, including damages, costs, and attorney‟s fees (including costs or attorney‟s fees on appeal) as a result of such breach, or otherwise for failure to timely perform its obligations under this Agreement occasioned by any cause beyond the reasonable control and without the fault of the parties. Such causes may include but shall not be limited to Acts of God, acts of terrorism or of the public enemy, acts of other governments (including regulatory entities or courts) in their sovereign or contractual capacity, fires, hurricanes, tornadoes, floods, epidemics, quarantines, restrictions, strikes, substantial shortages of building materials within the Orlando Metropolitan Area, or failure or breakdown of transmission or other facilities (“Force Majeure”). Notwithstanding anything herein to the contrary, if the Developer, City, or CRA is delayed, hindered or prevented in or from performing its respective obligations under this Agreement by any occurrence or event of Force Majeure, then the period for such performance shall be extended for the period that such performance is delayed, hindered or prevented, and the party delayed, hindered or prevented in or from performing shall not be deemed in breach hereunder. IN WITNESS WHEREOF, the City, CRA and Developer have executed this Economic Development Incentive Agreement for the Tradition Towers as of the Effective Date. 17 ORLDOCS 10294303 4 CITY OF ORLANDO, FLORIDA By: ____________________________________ Mayor/Pro Tem Attest: By: ____________________________ Alana C. Brenner, City Clerk Approved as to form and legality for the use and reliance of the City of Orlando, Florida only. this ____ day of _________________, 2005. ________________________________________. City Attorney, City of Orlando, Florida STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this ____ day of ______________, 2005, by ____________________ and Alana C. Brenner, as the Mayor/Mayor Pro Tem and City Clerk, respectively, of the City of Orlando, Florida on behalf of the City of Orlando, Florida, who are personally known to me. __________________________________ Notary Public, State of Florida Printed Name:______________________ SIGNATURES CONTINUED ON FOLLOWING PAGES Economic Development Incentive Agrt. Tradition Towers 18 ORLDOCS 10294303 4 COMMUNITY REDEVELOPMENT AGENCY By: ____________________________________ Chairman Attest: By: ____________________________ William F. Billingsley, III Executive Director STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this ____ day of ______________, 2005, by Buddy Dyer and William F. Billingsley, III, as the Chairman and Executive Director, respectively, of City of Orlando, Florida Community Redevelopment Agency, on behalf of City of Orlando, Florida Community Redevelopment Agency and who are personally known to me. __________________________________ Notary Public, State of Florida Affix Stamp SIGNATURES CONTINUED ON FOLLOWING PAGE Economic Development Incentive Agrt. Tradition Towers 19 ORLDOCS 10294303 4 DEVELOPER: BROAD STREET PARTNERS, LLC, a North Carolina limited liability company By: _____________________________________ Name: ___________________________________ Title: ____________________________________ Witnesses: (1) Sign Name: __________ __________________ Print Name: ____________________________ (2) Sign Name: ____________________________ Print Name: ____________________________ STATE OF ___________________ COUNTY OF ________________ The foregoing instrument was acknowledged before me this ____ day of ______________, 2005, by ____________________, as the _________________ of Broad Street Partners, LLC, a North Carolina limited liability company, and who has acknowledged that he/she has executed the same on behalf of Broad Street Partners, LLC and that he/she was authorized to do so. He/She is personally known to me or has produced _______________________ as identification. __________________________________ Notary Public, State of Florida Affix Stamp Economic Development Incentive Agrt. Tradition Towers C.My Documents/Incentive Agrts./Tradition Towers/Incentive Agrt.Clean.9.27.05 20 ORLDOCS 10294303 4 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Lots 1 through 8, inclusive, SPERRY‟S SUBDIVISION of the North ½ of Block 13 of SUMMERLIN‟S ADDITION TO ORLANDO, according to the plat thereof as recorded in Plat Book B, Page 89, Public Records of Orange County, Florida, LESS AND EXCEPT THEREFROM the West 15 feet of Lots 4 and 5. 21 ORLDOCS 10294303 4
"MEMORANDUM OF UNDERSTANDING"