Developer’s Obligations. During the Term of this ENA, Developer shall be responsible for meeting or causing to be met, all obligations related to the Project. Accordingly, Developer agrees that during the Term of this ENA: a. Developer shall diligently, and in good faith and its sole cost, pursue obtaining all regulatory approvals for the Project, including satisfaction of CEQA; b. As between Developer and City, Developer shall be solely responsible for all of its own costs and expenses, including, but not limited to, fees it incurs for its attorneys, architects, engineers, consultants, and other professionals, related to or arising from this ENA, or the negotiation and execution of any of the Transaction Documents. Developer shall not have any claim against City for reimbursement for any such costs and expenses irrespective of whether any of the Transaction Documents are approved by City Council, or whether regulatory approvals are secured; c. Developer shall bear all costs associated with or complying with all permit and processing fees related to the Project as well as the conditions of any necessary regulatory approval granted to Developer; d. To the extent applicable, Developer shall pay and discharge any fines or penalties imposed as a result of its failure to comply with the terms and conditions of any regulatory approval granted to Developer, and City shall have no liability, monetary or otherwise, for such fines and penalties; e. Developer, in accordance with the ENA, shall undertake and complete its “due diligence” review or investigations of the Property and, if requested by City, provide to City (at no cost to City) copies of all non-privileged, non-proprietary reports regarding the Property without warranty of any kind as to the completeness or accuracy of any information contained therein, as set forth in the Performance Benchmarks. f. Developer shall prepare financial projections, provide evidence of Developer’s financial ability to construct the Project, and shall prepare and provide to City (at no cost to City) complete concept plans and schematic design plans for the Project, including, but not limited to, floor plans, elevations and renderings, as set forth in the Performance Benchmarks; g. Developer shall submit in a timely manner to any regulatory body having approval over the Project, all specifications, descriptive information, studies, reports, disclosures and any other information required to satisfy the application filing requirements of those agencies; h. Developer shall diligently pursue completion of all Performance Benchmarks and additional Performance Benchmarks, if any, in a timely fashion; i. Developer shall not pay, or agree to pay, any fee or commission, or any other thing of value that is contingent on the entering of this ENA, any other Transaction Document, or any other agreement with City related to the Project, to any City employee or official or to any contracting consultant hired by City for purposes of the Project. By entering into this ENA, Developer certifies to City that it has not paid, nor agreed to pay, any fee or commission, or any other thing of value contingent on the entering of this ENA, any other Transaction Document, or any other agreement with City related to the Project, to any City employee or official or to any contracting consultant hired by City for purposes of the Project; j. During the Term of this ENA, with respect to its obligations hereunder, Developer shall comply with, in all respects, the requirements of all applicable laws, including City ordinances, resolutions, regulations, plans, development controls, or other regulatory approvals (e.g., planning, design, construction, management and occupancy). Notwithstanding the above, Developer shall file its Zoning Clearance Application in accordance with the Performance Benchmarks; and k. Developer shall commit sufficient financial and personnel resources required to undertake and to fulfill its obligations under this ENA, as reasonably determined by Developer.
Appears in 1 contract
Sources: Exclusive Negotiation Agreement
Developer’s Obligations. During Section 2.1 The Developer shall build the Term Public Improvements consistent with the Site Plan approved by the City Commission.
Section 2.2 The Developer shall perform the Public Improvements set forth in Exhibit "A". Such Public Improvements shall be completed no later than two (2) years from the Effective Date. The estimated value of this ENA, the Public Improvements set forth in Exhibit "A" is $5,000,000. The Developer shall be responsible for meeting or causing the actual payment of these Public Improvements. CRA shall reimburse the Developer for said Public Improvements in an amount not to be met, all obligations related to the Projectexceed $5,000,000. Accordingly, Developer agrees that during the Term of this ENA:
a. Developer shall diligently, and in good faith and its sole cost, pursue obtaining all regulatory approvals for the Project, including satisfaction of CEQA;
b. As between Developer and City, Developer Said reimbursement shall be solely responsible for all of its own costs and expenses, including, but not limited to, fees it incurs for its attorneys, architects, engineers, consultants, and other professionals, related to or arising from this ENA, or the negotiation and execution of any of the Transaction Documentsin accordance with Section 3.1 hereof. Developer shall not have any claim against City for reimbursement for any such costs and expenses irrespective of whether any of the Transaction Documents are approved by City Council, or whether regulatory approvals are secured;
c. The Developer shall bear all costs associated with for these Public Improvements exceeding $5,000.000. Further, Developer shall be required and be solely responsible for obtaining any and
Section 2.3 In order to protect the CRA and City from all accidents and occurrences that occur prior to the CRA’s or complying with City’s acceptance of the Public Improvements, the Developer shall:
(i) Indemnify, hold harmless and, at the City Attorney's/General Counsel's option, defend, or pay for an attorney selected by the City Attorney/General Counsel to defend the City and CRA, their officers, agents, servants and employees, against any and all permit claims, losses, liabilities, and processing fees expenditures of any kind, including attorney's fees, court costs, and expenses, caused by the negligent act or omission of contractor(s) or subcontractor(s), their employees, agents, servants or officers, or accruing, resulting from, or related to the Project as well as the conditions subject matter of this Agreement including, without limitation, any and all claims, demands, or causes of action of any necessary regulatory approval granted nature whatsoever resulting from injuries or damages to any person or property.
(ii) In order to insure the indemnification obligation contained above, the Developer;
d. To the extent applicable’s contractor(s) shall, Developer shall pay and discharge any fines or penalties imposed as a result minimum, provide, pay for, and maintain in force at all times during the term of its failure to comply this Agreement (unless otherwise provided), the insurance coverages set forth below, in accordance with the terms and conditions of any regulatory approval granted this section.
(iii) Such policy or policies shall contain deductible amounts no greater than those standard in the insurance industry and shall be issued by United States Treasury approved companies authorized to Developerdo business in the State of Florida, and having agents upon whom service of process may be made in Broward County, Florida. Contractor(s) shall specifically protect City shall have no liability, monetary or otherwise, for such fines and penalties;
e. Developer, in accordance with the ENA, shall undertake and complete its “due diligence” review or investigations of the Property and, if requested CRA by naming City, provide to CRA and the City (at no cost to City) copies of all non-privileged, non-proprietary reports regarding the Property without warranty of any kind Commission Members as to the completeness or accuracy of any information contained therein, as set forth in the Performance Benchmarksadditional insureds.
f. Developer shall prepare financial projections, provide evidence of Developer’s financial ability to construct the Project, and shall prepare and provide to City (at no cost to City) complete concept plans and schematic design plans for the Project, including, but not limited to, floor plans, elevations and renderings, as set forth in the Performance Benchmarks;
g. Developer shall submit in a timely manner to any regulatory body having approval over the Project, all specifications, descriptive information, studies, reports, disclosures and any other information required to satisfy the application filing requirements of those agencies;
h. Developer shall diligently pursue completion of all Performance Benchmarks and additional Performance Benchmarks, if any, in a timely fashion;
i. Developer shall not pay, or agree to pay, any fee or commission, or any other thing of value that is contingent on the entering of this ENA, any other Transaction Document, or any other agreement with City related to the Project, to any City employee or official or to any contracting consultant hired by City for purposes of the Project. By entering into this ENA, Developer certifies to City that it has not paid, nor agreed to pay, any fee or commission, or any other thing of value contingent on the entering of this ENA, any other Transaction Document, or any other agreement with City related to the Project, to any City employee or official or to any contracting consultant hired by City for purposes of the Project;
j. During the Term of this ENA, with respect to its obligations hereunder, Developer shall comply with, in all respects, the requirements of all applicable laws, including City ordinances, resolutions, regulations, plans, development controls, or other regulatory approvals (e.g., planning, design, construction, management and occupancy). Notwithstanding the above, Developer shall file its Zoning Clearance Application in accordance with the Performance Benchmarks; and
k. Developer shall commit sufficient financial and personnel resources required to undertake and to fulfill its obligations under this ENA, as reasonably determined by Developer.
Appears in 1 contract
Developer’s Obligations. During the Term of this ENAAgreement, Lead Developer shall be responsible for meeting or causing to be met, all obligations related to the Project, including those that will be completed by the Affordable Developer. Accordingly, Lead Developer agrees and Affordable Developer agree that during the Term of this ENAAgreement:
a. (a) Lead Developer shall diligently, diligently and in good faith and its sole cost, pursue obtaining all regulatory approvals for the Market-Rate Project and the Affordable Project, including satisfaction of CEQA;. The Affordable Developer shall diligently and in good faith assist the Lead Developer in pursuing all regulatory approvals for the Affordable Project; [Deleted text is inconsistent with Lead Developer’s responsibility for delivering the Affordable Project in its entirety. See Recital N.
b. (b) As between Developer it and CitySuccessor Agency, Lead Developer shall be solely responsible for all of its own costs and expenses, expenses (including, but not limited to, fees it incurs for its attorneys, architects, engineers, consultants, consultants and other professionals, ) related to or arising from this ENA, Agreement or the negotiation and execution of any of the Transaction Documents, which it incurs. Neither Developer shall not have any claim against City the Successor Agency for reimbursement for any such costs and expenses irrespective of whether any of the Transaction Documents are approved by City Councilthe Commission, or whether regulatory approvals are secured;
c. (c) Lead Developer shall bear all costs associated with or complying with all permit and processing fees related to the Project as well as the conditions of and any necessary regulatory approval granted to DeveloperDevelopers;
d. To the extent applicable, (d) Lead Developer shall pay and discharge any fines or penalties imposed as a result of its failure to comply with the terms and conditions of any regulatory approval granted to DeveloperDevelopers, and City the Successor Agency shall have no liability, monetary or otherwise, for such said fines and penalties;
e. (e) Lead Developer shall pay the Successor Agency the amount of $43,320,000 in consideration for the transfer of the Site (the “Purchase Price”) as more specifically described in the attached Term Sheet. Lead Developer shall also pay all costs associated with the transfer of the Site, including title insurance and escrow fees.
(f) Lead Developer shall be solely responsible to pay, based on direction from the Successor Agency, the Affordable Housing Fee as more specifically described in the Recitals and the attached Term Sheet, Exhibit C.
(g) Lead Developer and/or Affordable Developer, in accordance with the ENADevelopers’ Agreement, shall undertake and complete its “due diligence” review or investigations of the Property Site and, if requested by Citythe Successor Agency, provide to City (at no cost to City) copies of all non-privileged, non-proprietary reports regarding the Property without warranty of any kind as Site to the completeness or accuracy of any information contained thereinSuccessor Agency, as set forth in the Performance Benchmarks.
f. Developer shall prepare financial projections, provide evidence of Developer’s financial ability to construct the Project, projections and shall prepare and provide to City (at no cost to City) complete concept plans and schematic design plans for the Project, including, but not limited to, floor plans, elevations and renderings, as set forth in the Performance Benchmarks, copies of which shall be provided to the Successor Agency, without representation or warranty of any kind;
g. (h) Lead Developer and Affordable Developer shall conform, in all material respects, with all MOHCD or Successor Agency policies related to the financing, development, and operation of affordable housing.
(j) Lead Developer shall submit in a timely manner to any regulatory body having approval over the Project, all specifications, descriptive information, studies, reports, disclosures and any other information required to satisfy the application filing requirements of those agencies;
h. Developer (k) Each of the Developers shall diligently pursue completion of all Performance Benchmarks and additional Performance Benchmarks, if any, allocated to that Developer in a timely fashion;
i. (l) [reserved]
(m) Neither Developer shall not pay, or agree to pay, any fee or commission, or any other thing of value that is contingent on the entering of this ENAAgreement, any other Transaction Document, or any other agreement with City the Successor Agency related to the Project, to any City Successor Agency employee or official or to any contracting consultant hired by City the Successor Agency for purposes of the Project. By entering into this ENAAgreement, each of Lead Developer and Affordable Developer certifies to City the Successor Agency that it has not paid, nor agreed to pay, any fee or commission, or any other thing of value contingent on the entering of this ENAAgreement, any other Transaction Document, or any other agreement with City the Successor Agency related to the Project, to any City Successor Agency employee or official or to any contracting consultant hired by City the Successor Agency for purposes of the Project;
j. (n) During the Term term of this ENAAgreement, with respect to its obligations hereunder, each Developer shall comply with, in all material respects, the requirements of all applicable laws, including City Successor Agency ordinances, resolutions, regulations, plans, development controls, or other regulatory approvals in all aspects (e.g., planning, design, construction, management and occupancy) of developing the Site, including, without limitation, the terms of the Transbay Redevelopment Plan and Development Controls and Design Guidelines and the Streetscape and Open Space Plan and any amendments thereto, the Successor Agency’s Small Business Enterprise Program (including the selection of consultants during the pre-development period). Notwithstanding the above, Developer shall file its Zoning Clearance Application in accordance with the Performance Benchmarks; and;
k. Developer (o) The Developers shall commit reasonably sufficient financial and personnel resources required to undertake and to fulfill its obligations under this ENAAgreement in a reasonably expeditious fashion; and
(p) In making any entry onto the Site, the Developers shall not cause a Release of any Hazardous Substance and shall not cause the Incidental Migration of any Hazardous Substance.
(i) For purposes of this Section 9, the term “Hazardous Substance” shall have the meaning set forth in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as reasonably determined by Developeramended as of the date of this Agreement, 42 U.S.C. §9601(14), and in addition shall include, without limitation, petroleum (including crude oil or any fraction thereof) and petroleum products, asbestos, asbestos-containing materials, polychlorinated biphenyls (“PCBs”), PCB-containing materials, all hazardous substances identified in the California Health & Safety Code §§25316 and 25281(d), all chemicals listed pursuant to the California Health & Safety Code §25249.8, and any substance deemed a hazardous substance, hazardous material, hazardous waste, or contaminant under Environmental Law. The foregoing definition shall not include substances that occur naturally on the Site.
Appears in 1 contract
Sources: Exclusive Negotiation Agreement
Developer’s Obligations. 4.1 Provided that DEVELOPER elects to proceed with the Private Improvements, DEVELOPER agrees to build the Public Improvements. DEVELOPER shall have no obligation to construct the Public Improvements if DEVELOPER elects not to construct the Private Improvements or if for any reason DEVELOPER elects not to obtain reimbursement for the costs of the Public Improvements pursuant to this AGREEMENT.
4.2 DEVELOPER shall use good faith efforts to cause all Public Improvements to be completed in a timely manner, in accordance with the Three-Way Contract, plans and specifications approved by CITY. All payments for work performed under the construction contract shall be made by DEVELOPER. Following acceptance of the Public Improvements by the City (not to be unreasonably withheld), DEVELOPER shall review the final payment estimates and forward same to TIF BOARD with such supporting documentation as TIF BOARD may require, including final contractor’s certificate and a final lien waiver at the completion of construction. TIF BOARD reserves the right to perform reasonable inspections, measurements or verifications. Notwithstanding anything herein to the contrary, DEVELOPER is to make payments to the DEVELOPER’S Contractor for the Public Improvements from its own funds and obtain reimbursement from the TIF BOARD in accordance with the terms and provisions of this AGREEMENT.
4.3 DEVELOPER shall inspect the work of the DEVELOPER’S Contractor, without assuming responsibilities for means and methods used by the DEVELOPER’S Contractor. Upon completion and acceptance by CITY, DEVELOPER shall assign all warranties under the construction contract(s) for the Public Improvements to CITY.
4.4 During the Term of this ENAAGREEMENT, Developer shall be responsible for meeting or causing to be met, all obligations related to the Project. Accordingly, Developer agrees that during the Term of this ENA:
a. Developer shall diligently, and in good faith and its sole cost, pursue obtaining all regulatory approvals for the Project, including satisfaction of CEQA;
b. As between Developer and City, Developer shall be solely responsible for all of its own costs and expenses, including, but not limited to, fees it incurs for its attorneys, architects, engineers, consultants, and other professionals, related to or arising from this ENA, or the negotiation and execution of any of the Transaction Documents. Developer DEVELOPER shall not have any claim against City for reimbursement for any such costs and expenses irrespective of whether any of allow the Transaction Documents are approved by City Council, or whether regulatory approvals are secured;
c. Developer shall bear all costs associated with or complying with all permit and processing fees related ad valorem taxes owed to the Project as well as the conditions of any necessary regulatory approval granted to Developer;
d. To the extent applicable, Developer shall pay and discharge any fines or penalties imposed as a result of its failure to comply with the terms and conditions of any regulatory approval granted to Developer, and City shall have no liability, monetary or otherwise, for such fines and penalties;
e. Developer, in accordance with the ENA, shall undertake and complete its “due diligence” review or investigations of the Property and, if requested by City, provide to City (at no cost to City) copies of all non-privileged, non-proprietary reports regarding the Property without warranty of any kind as to the completeness or accuracy of any information contained therein, as set forth in the Performance Benchmarks.
f. Developer shall prepare financial projections, provide evidence of Developer’s financial ability to construct the Project, and shall prepare and provide to City (at no cost to City) complete concept plans and schematic design plans for the Project, including, but not limited to, floor plans, elevations and renderings, as set forth in the Performance Benchmarks;
g. Developer shall submit in a timely manner to any regulatory body having approval over the Project, all specifications, descriptive information, studies, reports, disclosures and any other information required to satisfy the application filing requirements of those agencies;
h. Developer shall diligently pursue completion of all Performance Benchmarks and additional Performance Benchmarks, if any, in a timely fashion;
i. Developer shall not pay, or agree to pay, any fee or commissionCITY on Property, or any other thing property owned by DEVELOPER and located within the City of value that is contingent on the entering of this ENA, any other Transaction Document, or any other agreement with City related to the ProjectArlington, to any City employee or official or to any contracting consultant hired by City for purposes of become delinquent beyond the Project. By entering into this ENA, Developer certifies to City that it has not paid, nor agreed to pay, any fee or commission, or any other thing of value contingent on the entering of this ENA, any other Transaction Document, or any other agreement with City related to the Project, to any City employee or official or to any contracting consultant hired by City for purposes of the Project;
j. During the Term of this ENA, with respect to its obligations hereunder, Developer shall comply with, in all respects, the requirements of all applicable laws, including City ordinances, resolutions, regulations, plans, development controls, or other regulatory approvals (e.g., planning, design, construction, management and occupancy). Notwithstanding the above, Developer shall file its Zoning Clearance Application in accordance with the Performance Benchmarks; and
k. Developer shall commit sufficient financial and personnel resources required to undertake and to fulfill its obligations under this ENAdate when due, as reasonably determined such date may be extended to allow for any protest of valuation or appeal. Nor shall DEVELOPER fail to render for taxation any property owned by DeveloperDEVELOPER and located within the City of Arlington.
Appears in 1 contract
Developer’s Obligations. During Section 2.1 The Developer shall build the Term Public Improvements consistent with the Site Plan approved by the City Commission.
Section 2.2 The Developer shall perform the Public Improvements set forth in Exhibit "A". Such Public Improvements shall be completed no later than two (2) years from the Effective Date. The estimated value of this ENA, the Public Improvements set forth in Exhibit "A" is $5,000,000. The Developer shall be responsible for meeting or causing the actual payment of these Public Improvements. CRA shall reimburse the Developer for said Public Improvements in an amount not to be met, all obligations related to the Projectexceed $5,000,000. Accordingly, Developer agrees that during the Term of this ENA:
a. Developer shall diligently, and in good faith and its sole cost, pursue obtaining all regulatory approvals for the Project, including satisfaction of CEQA;
b. As between Developer and City, Developer Said reimbursement shall be solely responsible for all of its own costs and expenses, including, but not limited to, fees it incurs for its attorneys, architects, engineers, consultants, and other professionals, related to or arising from this ENA, or the negotiation and execution of any of the Transaction Documentsin accordance with Section 3.1 hereof. Developer shall not have any claim against City for reimbursement for any such costs and expenses irrespective of whether any of the Transaction Documents are approved by City Council, or whether regulatory approvals are secured;
c. The Developer shall bear all costs associated for these Public Improvements exceeding $5,000.000. Further, Developer shall be required and be solely responsible for obtaining any and all federal, state and local approvals and permits relating to the Public Improvements. Developer shall obtain such approvals expeditiously and with reasonable due diligence.
Section 2.3 In order to protect the CRA and City from all accidents and occurrences that occur prior to the CRA’s or complying with City’s acceptance of the Public Improvements, the Developer shall:
(i) Indemnify, hold harmless and, at the City Attorney's/General Counsel's option, defend, or pay for an attorney selected by the City Attorney/General Counsel to defend the City and CRA, their officers, agents, servants and employees, against any and all permit claims, losses, liabilities, and processing fees expenditures of any kind, including attorney's fees, court costs, and expenses, caused by the negligent act or omission of contractor(s) or subcontractor(s), their employees, agents, servants or officers, or accruing, resulting from, or related to the Project as well as the conditions subject matter of this Agreement including, without limitation, any and all claims, demands, or causes of action of any necessary regulatory approval granted nature whatsoever resulting from injuries or damages to any person or property.
(ii) In order to insure the indemnification obligation contained above, the Developer;
d. To the extent applicable’s contractor(s) shall, Developer shall pay and discharge any fines or penalties imposed as a result minimum, provide, pay for, and maintain in force at all times during the term of its failure to comply this Agreement (unless otherwise provided), the insurance coverages set forth below, in accordance with the terms and conditions of any regulatory approval granted this section.
(iii) Such policy or policies shall contain deductible amounts no greater than those standard in the insurance industry and shall be issued by United States Treasury approved companies authorized to Developerdo business in the State of Florida, and having agents upon whom service of process may be made in Broward County, Florida. Contractor(s) shall specifically protect City shall have no liability, monetary or otherwise, for such fines and penalties;
e. Developer, in accordance with the ENA, shall undertake and complete its “due diligence” review or investigations of the Property and, if requested CRA by naming City, provide to CRA and the City (at no cost to City) copies of all non-privileged, non-proprietary reports regarding the Property without warranty of any kind Commission Members as to the completeness or accuracy of any information contained therein, as set forth in the Performance Benchmarksadditional insureds.
f. Developer shall prepare financial projections, provide evidence of Developer’s financial ability to construct the Project, and shall prepare and provide to City (at no cost to City) complete concept plans and schematic design plans for the Project, including, but not limited to, floor plans, elevations and renderings, as set forth in the Performance Benchmarks;
g. Developer shall submit in a timely manner to any regulatory body having approval over the Project, all specifications, descriptive information, studies, reports, disclosures and any other information required to satisfy the application filing requirements of those agencies;
h. Developer shall diligently pursue completion of all Performance Benchmarks and additional Performance Benchmarks, if any, in a timely fashion;
i. Developer shall not pay, or agree to pay, any fee or commission, or any other thing of value that is contingent on the entering of this ENA, any other Transaction Document, or any other agreement with City related to the Project, to any City employee or official or to any contracting consultant hired by City for purposes of the Project. By entering into this ENA, Developer certifies to City that it has not paid, nor agreed to pay, any fee or commission, or any other thing of value contingent on the entering of this ENA, any other Transaction Document, or any other agreement with City related to the Project, to any City employee or official or to any contracting consultant hired by City for purposes of the Project;
j. During the Term of this ENA, with respect to its obligations hereunder, Developer shall comply with, in all respects, the requirements of all applicable laws, including City ordinances, resolutions, regulations, plans, development controls, or other regulatory approvals (e.g., planning, design, construction, management and occupancy). Notwithstanding the above, Developer shall file its Zoning Clearance Application in accordance with the Performance Benchmarks; and
k. Developer shall commit sufficient financial and personnel resources required to undertake and to fulfill its obligations under this ENA, as reasonably determined by Developer.
Appears in 1 contract
Developer’s Obligations. 4.1 Provided that DEVELOPER elects to proceed with the Private Improvements, DEVELOPER agrees to build the Public Improvements. DEVELOPER shall have no obligation to construct the Public Improvements if DEVELOPER elects not to construct the Private Improvements or if for any reason DEVELOPER elects not to obtain reimbursement for the costs of the Public Improvements pursuant to this AGREEMENT.
4.2 DEVELOPER shall use good faith efforts to cause all Public Improvements to be completed in a timely manner, in accordance with the Three-Way Contract, plans and specifications approved by CITY. All payments for work performed under the construction contract shall be made by DEVELOPER. Following acceptance of the Public Improvements by the City (not to be unreasonably withheld), DEVELOPER shall review the final payment estimates and forward same to TIF BOARD with such supporting documentation as TIF BOARD may require, including final contractor’s certificate and a final lien waiver at the completion of construction. TIF BOARD reserves the right to perform reasonable inspections, measurements or verifications. Notwithstanding anything herein to the contrary, DEVELOPER is to make payments to the DEVELOPER’S Contractor for the Public Improvements from its own funds and obtain reimbursement from the TIF BOARD in accordance with the terms and provisions of this AGREEMENT.
4.3 DEVELOPER shall inspect the work of the DEVELOPER’S Contractor, without assuming responsibilities for means and methods used by the DEVELOPER’S Contractor. Upon completion and acceptance by CITY, DEVELOPER shall assign all warranties under the construction contract for the Public Improvements to CITY.
4.4 During the Term of this ENAAGREEMENT, Developer shall be responsible for meeting or causing to be met, all obligations related to the Project. Accordingly, Developer agrees that during the Term of this ENA:
a. Developer shall diligently, and in good faith and its sole cost, pursue obtaining all regulatory approvals for the Project, including satisfaction of CEQA;
b. As between Developer and City, Developer shall be solely responsible for all of its own costs and expenses, including, but not limited to, fees it incurs for its attorneys, architects, engineers, consultants, and other professionals, related to or arising from this ENA, or the negotiation and execution of any of the Transaction Documents. Developer DEVELOPER shall not have any claim against City for reimbursement for any such costs and expenses irrespective of whether any of allow the Transaction Documents are approved by City Council, or whether regulatory approvals are secured;
c. Developer shall bear all costs associated with or complying with all permit and processing fees related ad valorem taxes owed to the Project as well as the conditions of any necessary regulatory approval granted to Developer;
d. To the extent applicable, Developer shall pay and discharge any fines or penalties imposed as a result of its failure to comply with the terms and conditions of any regulatory approval granted to Developer, and City shall have no liability, monetary or otherwise, for such fines and penalties;
e. Developer, in accordance with the ENA, shall undertake and complete its “due diligence” review or investigations of the Property and, if requested by City, provide to City (at no cost to City) copies of all non-privileged, non-proprietary reports regarding the Property without warranty of any kind as to the completeness or accuracy of any information contained therein, as set forth in the Performance Benchmarks.
f. Developer shall prepare financial projections, provide evidence of Developer’s financial ability to construct the Project, and shall prepare and provide to City (at no cost to City) complete concept plans and schematic design plans for the Project, including, but not limited to, floor plans, elevations and renderings, as set forth in the Performance Benchmarks;
g. Developer shall submit in a timely manner to any regulatory body having approval over the Project, all specifications, descriptive information, studies, reports, disclosures and any other information required to satisfy the application filing requirements of those agencies;
h. Developer shall diligently pursue completion of all Performance Benchmarks and additional Performance Benchmarks, if any, in a timely fashion;
i. Developer shall not pay, or agree to pay, any fee or commissionCITY on Property, or any other thing property owned by DEVELOPER and located within the City of value that is contingent on the entering of this ENA, any other Transaction Document, or any other agreement with City related to the ProjectArlington, to any City employee or official or to any contracting consultant hired by City for purposes of become delinquent beyond the Project. By entering into this ENA, Developer certifies to City that it has not paid, nor agreed to pay, any fee or commission, or any other thing of value contingent on the entering of this ENA, any other Transaction Document, or any other agreement with City related to the Project, to any City employee or official or to any contracting consultant hired by City for purposes of the Project;
j. During the Term of this ENA, with respect to its obligations hereunder, Developer shall comply with, in all respects, the requirements of all applicable laws, including City ordinances, resolutions, regulations, plans, development controls, or other regulatory approvals (e.g., planning, design, construction, management and occupancy). Notwithstanding the above, Developer shall file its Zoning Clearance Application in accordance with the Performance Benchmarks; and
k. Developer shall commit sufficient financial and personnel resources required to undertake and to fulfill its obligations under this ENAdate when due, as reasonably determined such date may be extended to allow for any protest of valuation or appeal. Nor shall DEVELOPER fail to render for taxation any property owned by DeveloperDEVELOPER and located within the City of Arlington.
Appears in 1 contract