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 _________, 20002001 (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 (“Deerfield Beach Energy Center and its permitted asignees 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, 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, DBEC desires to construct the Facility if it receives all requisite local, city, county, state, federal and other approvals for development and construction thereof; and
WHEREAS, the City and DBEC acknowledge that the 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 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 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 Facility 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 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, the City and DBEC are entering into this Agreement to assure that certain development and site operational issues are addressed; 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.	Recitals.  The recitals above are true and correct and are incorporated herein by this reference.
1.2.	Development Approvals.  The City hereby acknowledges that the only City land use approval other than the City DRC approved site plan, and not including building permits, required to develop the Facility is plat approval.  The application for plat 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.  City shall use its best efforts to expeditiously process the application for plat 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.
2.3.	Landscaping.  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.
3.4.	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, Pat the endno later than December 31st of the calendar year in which DBEC receives its building permit for the Facility, DBEC shall pay to the City the sum of one 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 98-154 of the City Land Development Code, Interim Services Fee; provided, however, said one million five hundred thousand dollar ($1,500,000) payment shall be reduced by the sum of (i) any City ad valorem taxes paid by DBEC during the calendar year in which DBEC receives its building permit for the Facility, and (ii) any application fees and other costs or other assessments paid by DBEC to City related to the building permit for the Facility..
4. 5. Construction and Operating Tax Payments.   Subsequent to the date on which PBECDBEC commences construction of the Facility, the Parties acknowledge that PBECDBEC will be required under state statute to pay certain annual ad valorem taxes, including ad valorem taxes that will be allocable to the City based on the valuation of PBEC’DBEC's real and personal property and the City’'s millage rate (“"City Ad Valorem Taxes”").  Therefore, commencing on November 1st in the calendar year in which PBECDBEC obtains a Certificate of Occupancy for the Facility, and on each November 1st of each calendar year thereafter in which PBEC owns the Facility, 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 [$1,500,000] (the "Base Amount"), PBECDBEC 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, PBECDBEC shall not make any Additional Tax Payment to the City.   5.    
6. 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.
6.7. 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 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”").
7.8.	Easements and Rights of Way.
(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)	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..
8.9.	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.
9.10.	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.
10.11.	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.10
12.	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.
1113.	Recording.  The parties hereto agree that prior to the issuance of a building permit for the Facility this Agreement shall be recorded in the public records of Broward County.
1214.	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.
1315.	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. In such event, PBECDBEC shall so advise the City of such assignment.14
16.	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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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	

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	

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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