AGREEMENT RELATED TO
THE USE AND DEVELOPMENT OF REAL PROPERTY
	THIS AGREEMENT RELATED TO THE USE AND DEVELOPMENT OF REAL PROPERTY (this “Agreement”) is made and entered into this ______ day of _________, 2000 (the “Effective Date”), by and between the CITY OF DEERFIELD BEACH, FLORIDA, a municipal corporation having a mailing address of 150 N.E. 2nd Avenue, Deerfield Beach, Florida 33441 (“City”), and DEERFIELD BEACH ENERGY CENTER, L.L.C., a _______________Delaware limited liability company  whose principal address is 1400 Smith Street, Houston, Texas  77002 (“DBEC”).
W I T N E S S E T H:
WHEREAS, DBEC plans to construct and operate an electrical generating facility (the “Deerfield Beach Energy Center” or the “Facility”) upon a parcel of land located within the municipal boundaries of the City of Deerfield Beach, Broward County, Florida, as more particularly described on Exhibit “A” hereto (the “Property”); and
WHEREAS, the Deerfield Beach Energy Center will be a non-utility power generating facility designed for the production of electrical energy, comprised of the Property and the permanent improvements made thereto (collectively, the “Real Property Assets”) together with tangible personal property as defined in Section 192.001(11)(d), Florida Statutes (the “Tangible Personal Property”); and
WHEREAS, the City and DBEC acknowledge that the proposed electrical generating Facility will help promote the economic growth of the City, Broward County and the region; and
WHEREAS, pursuant to the Laws of Florida, Chapter 90-486 (the “Act”), the Property was annexed into the corporate limits of the City of Deerfield Beach; and
WHEREAS, the proposed Facility is a use consistent with and permitted by the Industrial land use category contained in the Broward County Comprehensive Land Use Plan; and
WHEREAS, the City acknowledges that the proposed Facility is consistent with the effective land use plan; and
WHEREAS, the Act provides that the Property is zoned Limited Heavy Industrial M-4 District, pursuant to Article LXV of the  Broward County Zoning Ordinance as same existed on December 1, 1990; and
WHEREAS, the City acknowledges that the proposed facility is consistent withFacility is a permitted use pursuant to the zoning classification set forth in the Broward County Zoning Ordinance; and
WHEREAS, the Act provides that the Property shall be developed in accordance with the provisions of the Broward County Code of Ordinances (the “Code”), including, but not limited to, provisions relating to signs, parking, noise standards, building setbacks and heights, concurrency requirements, and other regulations affecting the conduct of business on, or use of the Property; and
WHEREAS, the Act provides that all site plans, or any application to amend any site plan for the Property shall be subject to the same standards, development review procedures, other procedures, and conditions as required pursuant to the Code as it existed on December 1, 1990, except that the City of Deerfield Beach Development Review Committee (“DRC”) shall review any applications which would have been reviewed by the Broward County Development Review Committee if the property were not annexed; and
WHEREAS, pursuant to the Act the site plan approval for the proposed Facility will bewas conducted solely by the City DRC, and, as such the City DRC imposed certain conditions which are to be implemented pursuant to an agreement between the City and DBEC; and
WHEREAS, the City and DBEC are entering into this Agreement to assure that certain development and site operational issues are addressed in accordance with the terms and provisions of this Agreement; and
WHEREAS, the parties hereto desire to enter into this Agreement to set forth their mutual obligations in connection with the development of the Facility.
NOW, THEREFORE, in consideration of TEN DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the mutual agreements contained herein, and the City’s commitment to use its good faith efforts to support the development of the Property for its intended use as an electrical generating Facility, DBEC and City do hereby agree as follows:
 1.1.	Recitals.  The recitals above are true and correct and are incorporated herein by this reference.
2.2.	Development Approvals.  The City hereby acknowledges that the only City land use approvals (approval other than the City DRC approved site plan, and not including building permits), required to develop the Facility areis plat approval and site plan approval (the “Development Approvals”).  The applicationsapplication for the Development Approvalsplat approval shall be processed in accordance with the requirements of the Act such that the plat will be reviewed for approval by the City and Broward County and the site plan will be reviewed for approval by the City DRC only.  City shall use its best efforts to expeditiously process the applicationsapplication for the Development Approvalsplat approval and any and all other applications that may from time-to-time be submitted by DBEC in connection with the development of the Facility (e.g., building permit applications).  Amendment of the plat or site plan shall not necessitate an amendment of this Agreement.
3.3.	Landscaping.  DBEC agrees to enhance the aesthetic appearance of the Facility by improving the Property beyond the requirements set forth in the Code in accordance with the landscape plan attached hereto and made a part hereof as Exhibit B (the “Landscape Plan”).  The Landscape Plan depicts the location of a preserve area in the northern quadrant of the Property, landscape berms and the locations, size and types to trees to be planted on the Property, all designed to provide a more dense buffer between the Facility and the surrounding community.

4.	Services.  In addition to the public safety services to be provided by the City, DBEC hereby agrees to provide an on-site first response emergency protection system for on-site emergency management.  The emergency response system for the Facility shall be designed, operated and managed pursuant to all applicable county, state and federal regulations including, but not limited to, the State of Florida Building Code; the National Fire Protection Association – NFPA 30 “Flammable and Combustible Liquids Code, 2000 Edition”; National Fire Protection Association – NFPA 850 “Recommended Practice for Fire Protection for Electric Generating Plants and High Voltage Direct Current Converter Stations, 2000 Edition”; Occupational Safety and Health Administration (OSHA) Regulations 1910.19 “Process Safety Management Regulations”; and Environmental Protection Agency (EPA) Risk Management Plan (RMP) Regulations 40 CFR 68.

5.	Fees.  
4.	Service Impacts and Community Enhancements.  DBEC and the City acknowledge that the Facility is a unique use and will have impacts upon services and facilities provided by the City which are peculiar to this type of use.  Therefore, DBEC hereby agrees to pay the following fees to the City to be utilized by the City for municipal services and facilities including but not limited to, public safety, fire safety, neighborhood beautification and the like.
(a.		Public Safety Impact)	Initial Fee.  Prior to the issuance of a certificate of occupancybuilding permit for the Facility, DBEC shall pay to the City a public safety impact fee to compensate the City for DBEC’s proportionate sharesum of the capital costs for infrastructure capacity for police and fire/rescue services in accordanceone million five hundred thousand dollars ($1,500,000).  Such payment shall constitute compliance with Section 38-321 of the City Code of Ordinances, City Public Safety Impact Fee, as well as the requirements of Section 3898-321154 of the City Land Development Code of Ordinances (the “Public Safety Impact, Interim Services Fee”).  The Public Safety Impact Fee shall be calculated based upon the total square footage of building floor area in the approved site plan and the fee factor for “light industrial” use as set forth in Section 38-321 of the City Code of Ordinances on the date of this Agreement (see copy of Section 38-321 attached hereto as Exhibit “B” and calculation attached as Exhibit “C”).  Payment of the Public Safety Impact Fee as; provided herein, however, said one million five hundred thousand dollar ($1,500,000) payment shall be deemed to satisfy the requirements of Section 38-321 of thecredited for City Code of Ordinancesad valorem taxes on the Real Property Assets paid by DBEC during the tax year in which the building permit for the Facility is obtained. 
(b.)	Interim Services Fee.Recurring Fee.  Prior to the issuance of a certificate of occupancyCommencing on November 1st of the calendar year in which DBEC obtains a Certificate of Occupancy for the Facility, DBEC shall pay to the City an interim services fee to compensate the City for DBEC’s proportionate share of the costs of additional City services incurred prior to the time that the Facility is placed on the tax roll in accordance with the requirements of Section 98-154 of the City Land Development Code (the “Interim Services Fee”).  The Interim Services Fee shall be calculated based upon the total square footage of building floor area in the approved site plan and the fee factor for “light industrial” use as set forth in Schedule A to Section 98-154 of the City Land Development Code on the date of this Agreement (see copy of Section 98-154 attached hereto as Exhibit “B” and calculation attached as Exhibit “C”).  The Interim Services Fee shall be payable for the number of weeks between the date of issuance of a Certificate of Occupancy for the Facility and the 31st day of the following December.  Payment of the Interim Services Fee as required herein shall be deemed to satisfy the requirements of Section 98-154 of the City Land Development Code. City ad valorem taxes (real and personal property) based on the City’s millage and the estimated value of the facility per year.  In the event the City millage and/or valuation of the Facility results in City ad valorem taxes of less than one million seven hundred twenty six thousand dollars ($1,726,000) (the “Base Amount”), DBEC shall pay directly to the City the difference between the actual City ad valorem taxes and the Base Amount.  In the event that the actual City ad valorem taxes are greater than the Base Amount, DBEC shall pay the actual amount.  Such difference shall be calculated and payable on or before November 1st of each year thereafter.  In the event DBEC obtains the necessary governmental permits and approvals to expand the electric generating capacity of the Facility above the ___________ megawatts currently contemplated, DBEC agrees to increase the Base Amount by thirty-five hundred dollars ($3,500) per megawatt of increased generating capacity; such increase in the Base Amount shall not be effective until November 1st of the calendar year in which DBEC obtains a Certificate of Occupancy for the expanded facility.
c.  	Payments in Lieu of Taxes.  DBEC shall pay all ad valorem taxes on the Real Property Assets and the Tangible Personal Property as required under state or local law.  In the event the Real Property Assets and/or the Tangible Personal Property are in the future deemed exempt from ad valorem taxation and the Broward County Property Appraiser removes the Real Property Assets and/or the Tangible Personal Property from the tax roll, DBEC agrees to make annual payments to City in lieu of ad valorem taxes (the Payments in Lieu of Taxes).  If the Real Property Assets are deemed to be one hundred percent (100%) exempt, then the Payment in Lieu of Taxes for the Real Property Assets shall be $__________.  If the Real Property Assets are deemed to be exempt in an amount less than one hundred percent, then the Payment in Lieu of Taxes for the Real Property Assets shall be $__________ multiplied by the percentage of said exemption.  If the Tangible Personal Property is deemed to be one hundred percent (100%) exempt, then the Payment in Lieu of Taxes for the Tangible Personal Property shall be $__________.  If the Tangible Personal Property is deemed to be exempt in an amount less than one hundred percent, then the Payment in Lieu of Taxes for the Tangible Personal Property shall be $__________ multiplied by the percentage of said exemption.  However, in no event shall the total Payments in Lieu of Taxes be less than ________.  The Payments in Lieu of Taxes (including the minimum payment described above) shall be subject to adjustment by the annual percentage of increase/decrease in the [Consumer Price Index for All Urban Consumers U. S. City Average, All Items (CPI-U 1982-84=100) prepared by the Bureau of Labor Statistics of the U.S. Department of Labor]; provided, however, that such increase/decrease shall not exceed ___% per year of the initial Payment in Lieu of Taxes.  The date by which said Payments in Lieu of Taxes are required to be made each year shall be the same as established for ad valorem taxes, pursuant to Chapter 197, Florida Statutes and the Payments in Lieu of Taxes shall be subject to the discount provisions applicable to ad valorem taxes as established by Chapter 197, Florida Statutes.  In consideration DBEC’s agreement to make Payments in Lieu of Taxes to the City, City agrees to cooperate and support any proposed changes to the energy regulations of the State of Florida which may provide DBEC with tax incentives or tax abatements.
d.(c)	Gross Receipts Tax.  In the event City enacts new gross receipts taxes on the purchase of utility commodities (e.g., natural gas, water), City shall provide an exemption to electricity generators generally or DBEC specifically.  Alternatively, City shall rebate one hundred (100%) percent of DBEC’s gross receipts tax liability.
(d)	e. 	Building Permit Fees.  The building permit fees payable by DBEC to the City for construction of the Facility shall be calculated using the City’s Building Permit Fee Schedule as it exists on the date of this Agreement.  For the purposes of calculating the building permit fee, the “Construction Type” of the Facility shall be deemed to be a “Factory”  (see copy of fee schedule attached hereto as Exhibit “B” and calculation attached as Exhibit “C”).
6.5.	Easements and Rights of Way.
a.(a)	Utility Easements.  City shall use its best efforts to assist and facilitate the acquisition of all necessary easements and rights-of-way as may be required by DBEC for utility connections with other utility providers.
b.(b)	Cellular Tower Easement.  DBEC shall grant to City an exclusive perpetual easement for the purpose of installing and maintaining a cellular telecommunications tower, at City’s sole cost and expense, consisting of a single pole or spire, self-supported by a permanent foundation, and constructed within the retention pond area located in the northern quadrant of the Property, without guy wires and ground anchors, for lease to cellular telephone companies (the “Cellular Tower Easement”).  On or before ________Within sixty (60) days of DBEC taking title to the Property, DBEC and City shall negotiate and execute an easement agreement granting the City the Cellular Tower Easement, which easement agreement shall contain, among other mutually acceptable terms customarily found in cellular easement agreements in Broward County, Florida, provisions related to permitted uses, maintenance, insurance, indemnification, restrictions and revenue sharing between the City and DBEC.  
6.	Priority Power:  Right of First Refusal.  In recognition of the efforts of the Governor's 20/20 Energy Commission and its examination of the issue of restructuring the State's electric industry, the City and DBEC agree that in the event future amendments to state statutes governing the generation and sale of electric power permit DBEC to provide a right of first refusal to the City to purchase power directly for City industry and residents, DBEC shall enter into the requisite agreements to effectuate such priority purchasing of electrical power, as may be permitted by law.
7.7.	Counterparts; Captions.  This Agreement may be executed in counterparts, each of which shall be deemed an original.  The captions are for convenience of reference only and shall not affect the construction to be given any of the provisions hereof.  Facsimile signatures shall be considered as originals for the purposes of this Agreement.
8.8.	Governing Law.  This Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of Florida applicable to agreements made and to be performed wholly within the State of Florida.
9.9.	Entire Agreement; No Third Party Beneficiaries.  This Agreement (including all exhibits hereto) contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings, if any, with respect thereto.  This Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing or as otherwise expressly permitted herein.  The parties do not intend to confer any benefit hereunder on any person, firm or corporation other than the parties hereto. 
10.10.	Waivers; Extensions.  No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof or of any other agreement or provision herein contained.  No extension of time for performance of any obligations or acts shall be deemed an extension of the time for performance of any other obligations or acts.
11.11.	No Recording.  The parties hereto agree that neitherprior to the issuance of a building permit for the Facility this Agreement nor any memorandum or notice hereof shall be recorded in the public records of Broward County.
12.12.	Pronouns; Joint and Several Liability.  All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the parties may require. 
13.13.	Successors and Assigns.  This Agreement shall bindbe binding upon and inure to the benefit of DBEC, the City and their respectiveits successors and assigns.  This Agreement is freely assignable by DBEC.   DBEC shall notify the City of any such assignment within ten (10) days of the assignment becoming effective.
14.14.	Termination.  In the event DBEC elects not to construct the proposed Facility within five (5) years from the Effective Date of this Agreement, this Agreement shall automatically terminate and be of no further force and effect.  In any event this Agreement shall terminate thirty (30) years from the Effective Date or at such time as the Property ceases to be used as a power generating facility, whichever occurs first.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written.
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						CITY:

Witnesses:					CITY OF DEERFIELD BEACH, a 							Florida municipal corporation

						By:						
Printed Name:					Printed Name:					
						Title:						
					
Printed Name:				

ATTEST:

						____ day of _____________, 2000
City Clerk

CORPORATE SEAL

						APPROVED AS TO FORM:

						City Attorney

Witnesses:	CITY:
CITY OF DEERFIELD BEACH, a Florida municipal corporation

Print Name:	
	
Print Name:		By:	
Printed Name:	
Title:		
ATTEST:

City Clerk
CORPORATE SEAL	_____ day of __________, 2000	
	APPROVED AS TO FORM:

City Attorney	

						DBEC:

Witnesses:	DEERFIELD BEACH ENERGY CENTER, L.L.C, a _________________ limited liability company 

						By:						
Printed Name:						Ben F. Jacoby, Director

Printed Name:				\DARELLIP\331391v02\73PB02!.DOC\11/29/00

Witnesses:	DBEC:
DEERFIELD BEACH ENERGY CENTER, L.L.C, a(n) __________ limited liability company

Print Name:	
	
Print Name:		By:	
Printed Name:	
Title:		

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