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 _________, 2001 (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, or its designee and its successors and assigns (Deerfield Beach Energy Center and its permitted asigneesassignees are referred to as "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, DBEC has applied for site plan approval for the Facility on the property; and
WHEREAS, the Deerfield Beach Energy Center will be a power generating facility designed for the production of electrical energy, comprised of the Property and the permanent improvements made thereto; 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 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 (the “Zoning District”); and
WHEREAS, based upon the mitigation measures contained in this agreement and the conditions which may be set forth in the DRC staff report, the City finds that the proposed use is a permitted use in the zoning district; 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 was conducted by the City DRC, and the City DRC imposed certain conditions which are to be implemented pursuant to an agreement between the City and DBEC; and
WHEREAS, based upon the findings of the City DRC and the conditions which are set forth in the DRC final development order granting site plan approval, the City finds that the proposed use is a permitted use in the Zoning District; and
WHEREAS, DBEC recognizes that the City DRC has relied upon the covenants and conditions set forth herein in granting site plan approval and that they are a necessary condition to said approval; and
WHEREAS, the City and DBEC are entering into this Agreement to assure that certain development and site operational issues are addressed; and
WHEREAS, DBEC acknowledges and agrees that these conditions are appropriate to the circumstances, directly related to impacts imposed by the Facility, legally imposed, and binding on DBEC; and
WHEREAS DBEC recognizes that the City  DRC has relied upon the covenants and conditions set forth herein in granting site plan approval and that they are a  necessary condition to said approval;
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, DBEC and City do hereby agree as follows:
1.	Recitals.  The recitals above are true and correct and are incorporated herein by this reference.
32.	Landscaping.  PriorSubsequent to the issuance of a building permit but prior to the issuance of a Certificate of Occupancy for the Facility, 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.  Where the DRC   requires landscaping to be in place prior to issucanceissuance of a certificate of occupancy that condition shall control.
43.	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.   DBEC acknowledges and agrees that, as a condition to receiving site plan approval for the Facility, the City DRC required that the covenants set forth herein must be implemented.  Therefore, an initial paymentmunicipal fee of -----$1,500,000.00 shall be madepaid to the City as follows: (i) no later than September 1, 30, 2001, DBEC shall make a payment of  -------pay $500,000.00 to the City.  A; and (ii) a second paymentmunicipal fee of -----$1,000,000.00 shall be madepaid to the City  prior to receipt of the first building permit or engineering work permit for the Facility.     Such paymentsfees, when madepaid,   shall also constitute compliance with Section  38-321 of the City Code of Ordinances, City Public Safety Impact Fee, as well as the requirements of Section  98-154 of the City Land Development Code, Interim Services Fee .  DBEC shall, simultaneously with execution of this agreementAgreement, provide the City with an irrevocable letterabsolute and unconditional guarantee from Enron North America Corp., a Delaware Corporation (“Enron”) of credit, in a form acceptable to the City Attorney,  in the amount of  ---- to secure the payment due on September 1, 2001.5DBEC’s obligations set forth in this Paragraph 3.  This guarantee shall provide:
(i)	That it shall be liberally construed to assure that, should there be any default or breach of the obligations of DBEC set forth in this Paragraph 3, then City may look to Enron for full compliance with said obligations of DBEC, with no requirement that City first undertake judicial action against DBEC; 
(ii)	That Enron shall be responsible for the obligations of DBEC and for assuring that said obligations are fully honored;
(iii)	An acknowledgement by Enron that it has a beneficial interest in the Facility and that this Agreement inures to its benefit;
(iv)	An acknowledgement that Enron has received adequate and sufficient consideration for the execution of the guarantee; and
(v)	That this guarantee may be extinguished at any time by pre-payment of DBEC’s financial obligations as set forth in this Paragraph 3.
4.	Construction and Operating Tax PaymentsDBECPayments.  DBEC recognizes the continuing City obligation to provide municipal services to this unique facility and agrees that the payments set forth in this section are necessary and justified and should continue for the life of the Facility. It is therefore the intent of the parties to assure that a minimum annual payment, as set forth in this section, be made to and received by the City.  Subsequent to the date on which DBEC commences construction of the Facility, the Parties acknowledge that DBEC will be required by law to pay certain annual ad valorem taxes, including ad valorem taxes that will be allocable to the City based on the valuation of DBEC's real and personal and the City's millage rate ("City Ad Valorem Taxes").   It is understood and agreed that DBEC’s real and personal property shall be, at a minimum, considered to be the Property, all facilities , improvements, and buildings constructed thereon, all property subject to the site plan approval referred to herein,   and any   additions thereto.     Therefore, commencing on November  1st in the calendar year in which DBEC obtains a Certificate of Occupancy for the Facility ( or when the certificate of occupancy is issued if between November  1 and December  31), and on each November 1st of each calendar year thereafter, in the event the City millage and/or valuation of the Facility results in City Ad Valorem Taxes attributable to such calendar year in an amount of less than [$__________]1,726,000.00 (the "Base Amount"), DBEC shall pay directly to the City the difference between the Base Amount and the City Ad Valorem Taxes (the "Additional Tax Payment").    In the event that the City Ad Valorem Taxes attributable to such calendar year are greater than or equal to the Base Amount, DBEC shall not make any Additional Tax Payment to the City. Should DBEC or the Facility be exempted or otherwisedotherwise released from the obligation to pay ad valorem taxes for any reason of whatsoever nature, DBEC agressagrees to continue to pay , on November  1 of each year, the Base Amount or   the amount of the last ad valorem tax payment   made for City ad valorem taxes   whichever amount is greater.     This provision shall be liberally construed in favor of the City to assure that, in no event, shall the City receive an annual payment less than the Base Amount.
6. Late Payment  In the event DBEC fails to make a payment  on the date it is due5.	Default by DBEC.  Should DBEC default on the payment obligations contained herein, it shall be liable for interest on the amount outstanding at a rate of one and one/-half percent   (11/2%) per month or each portion thereof.  Should the City obtain enforcement of the payment obligations contained herein through judicial action, then, in that event, the City shall be reimbursed by DBEC for all costs and attorneys fees including the costs of any appeals.
7.  Attorneys Fees.  Should either party6.	Default by the City.  Should the City default on the obligations contained herein, and DBEC obtain enforcement of any rights or obligations set forth herinherein through   judicial action, then, in that event, the prevailing partyDBEC shall be reimbursed by the nonprevailing partyCity for all costs and attorneys fees including the costs of any appeals.    
7.	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 datethedate the permit is issued..  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").
8.	Easements 
.UTILITY(a)	Utility EASEMENTSEasements.  The City shall offer its good faith cooperation in assisting DBEC   in obtaining necessary easements   as may be reasonably required by DBEC for utility connections with other utility providers...  This shall not require the City to use its power of eminent domain or   to require easements   from third parties.
(b)	Cellular Tower Easement.  Prior to the issuance of a Certificate of Occupancy, 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").  The Cellular Tower Easement 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, and operating restrictions..
9.9. Precondition to Development .  No  delopment development (as that term is defined in Section  380.031, Florida Statutes (2000) may be begun or building or engineering work permits issued or plat recorded for all or part of the Property prior to the recordation of this agreement in the Public Records of Broward County, Florida, which recording must be accompianiedaccompanied by the following:
a. a. A titiletitle opinion evidencing   marketable title to the Property in the party which executes same; said opinion shall list andall parties with an interest in the Property of a nature as would require their consent or joinder for this Agreement to be binding on the propertyProperty.  The opinion shall be directed to the City for its reliance and shall be acceptable to the City Attorney; and 
b.	An opinion of counsel forb.	Documentation from DBEC directed to the City for its reliance and use which setsevidences: forth(i) the authority of the signatory   on behalf of DBEC and opines to; (ii) the fact that the signatory and the form of execution is sufficient to bind DBEC to the agreement andthis Agreement; (iii) that execution   of thethis agreementAgreement has been properly authorized by resolution or other act of the entity signing the agreement.  Anythis Agreement; (iv) any necessary authorizations shall be attached to thesuch opiniondocumentation and referenced therein.The opinion shall also state; (v) that no other consents or approvals or signatures are necessary in order for thethis agreementAgreement to be immediately binding and enforceable.  TheSuch documentdocumentation must be acceptable in form and substance to the City Attorney.;
c. c. An opinion of counsel for DBEC directed to the City for its reliance and use which opines that said counsel has reviewed this Agreement and the circumstances of its execution, has reviewed all the applicable laws which may relate thereto , including any case law, and that all statements contained in are true and correct and that the agreementAgreement is valid and binding according to its terms and shall be immediately enforceable. upon its execution.; and
d.	An opinion of counsel for Enron ------d.	Documentation from ENRON North America Corp., a Delaware corporation, directed to the City for its reliance and use which contains the same opinionevidence as set forth in Paragraph b. above and additionally acknowledges the validity and binding nature of the ENRON guarantee provided in Paragraph 3 of Enronthis Agreement.

NOTE:  WILL NEED OPINIONS SUCH AS  SET FORTH IN D AND E BEFORE THE DRC MEETING.
910.	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.
1011.	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.  Venue shall be in Broward County  , Florida.
1112.	Entire Agreement; Modifications.  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.
NOTICE PROVISION
13.	Notices.  Whenever any of the parties desire to give notice to the other, such notice must be in writing, sent by U.S. Mail, postage prepaid, addressed to the party for whom it is intended at the place last specified; the place for giving of notice shall remain such until it is changed by written notice in compliance with the provisions of this paragraph.  For the present, the parties designate the following as the respective places for giving notice:
12
For the City:	Larry R. Deetjen
City of Deerfield Beach
150 NE Second Avenue
Deerfield Beach, FL  33441
	
With a Copy to:	Andrew S. Maurodis
City of Deerfield Beach
150 NE Second Avenue
Deerfield Beach, FL  33441	
		
For DBEC:	Mr. Steven Krimsky
ENRON North America Corp.
1400 Smith Street
Houston, TX  77002-7361
	
With a copy to:	Kay Mann, Esq.
ENRON North America Corp.
1400 Smith Street
Houston, TX  77002-7361
	
	Debbie M. Orshefsky, Esq.
Greenberg Traurig, P.A.
515 E. Las Olas Boulevard
Fort Lauderdale, FL  33301
	
14.	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.
1315.	Recording.  The parties hereto agree that prior to the issuance of a building permit for the Facility this Agreement shall be recorded in the publicPublic recordsRecords of Broward County, Florida, and shall run with and bind the Property and all future owners   or parties in interest thereof. and constitute and act as a restriction on the Property and all future owners or parties in interest thereof.
1416.	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.
1517.	Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of DBEC, its successors and assigns.  DBEC may assign this agreement in its sole and absolute discretion without the consent of the City to any entity lawfully authorized to conduct business in the State of Florida provided such assignee first acknowledges, in a form acceptable to the City Attorney, acceptance of the terms of this agreement and issue and provided that said assignee provide acknowledgement and opinion from its counsel inshall provide the same form and content as required aboveCity with written notice of any such assignment within ten (10) days of such assignment.  
18.	Effective Date.  This Agreement shall be effective (the “Effective Date”) upon execution by DBEC and enactment of a Resolution approving same by the City Commission.
16.19.	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 at such time as the Property ceases to be used as a power generating facility.  In the event of a termination as provided herein, the City and DBEC shall be relieved of all obligations hereunder and shall unconditionally execute and record an instrument in the Public Records of Broward County, Florida, releasing each other from all obligations hereunder.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written.

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 __________, 20002001	
	APPROVED AS TO FORM:

City Attorney	

				ABSOLUTE

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

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

			ABSOLUTE AND UNCONDITIONAL GUARANTEE

	Enron ------------ (Enron) does hereby absolutely, unconditionally, and without reservation guarantee the obligations of DBEC as set forth above.  This guarantee shall be liberally construed to assure that, should there be any default or breach of the obligations of DBEC then City may look to Enron for full compliance with said obligations of DBEC.  There shall be no requirement  that City first  undertake judicial action against DBEC .   Enron shall be responsible for the obligations of DBEC and for assuring that said obligations are fully honored. Upon and default of DBEC then, in that event, Enron shall be liable to the same extent as DBEC. Enron recognizes that it has a beneficial interest in the Deerfield Beach Energy Center and that this agreement inures to its benefit.  Enron acknowledges that it has received adequate and sufficient consideration for the execution of this guarantee. 

Signature block
STATE OF _____________	)
)	SS:
COUNTY OF ___________	)
The foregoing instrument was acknowledged before me this _____ day of __________, 2001 by _______________________ as ____________________________ of DEERFIELD BEACH ENERGY CENTER, a(n) ____________ limited liability company, on behalf of the limited liability company.  He/she personally appeared before me, is personally known to me or produced _________________________ as identification.

		Notary: ______________________________		
[NOTARY SEAL]		Print Name:  ______________________________	
		Notary Public, State of Florida	
		My commission expires: _________________ 	

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