NO PROPERTY INTEREST OR DEVELOPMENT RIGHTS SHALL ARISE UNDER THIS AGREEMENT. THE PARTIES INTEND TO OUTLINE THEIR MUTUAL UNDERSTANDINGS AS OF THE DATE OF THIS AGREEMENT AND THE COMPANY’S RIGHTS TO THE PROPOSED PROJECTS SHALL BE LIMITED TO THE RIGHTS EXPRESSLY SET FORTH HEREIN. PROPERTY INTERESTS AND DEVELOPMENT RIGHTS SHALL ONLY ARISE UPON APPROVAL AND EXECUTION OF THE RESPECTIVE PROJECT SPECIFIC AGREEMENT BY THE APPLICABLE MUNICIPAL ENTITY, AND THEN THE PROPERTY INTERESTS AND DEVELOPMENT RIGHTS SHALL BE LIMITED TO THE RIGHTS SPECIFICALLY DESCRIBED IN THE RESPECTIVE PROJECT SPECIFIC AGREEMENT. NEITHER THE EXISTENCE OF THIS AGREEMENT NOR THE EXECUTION OF ANY PARTICULAR PROJECT SPECIFIC AGREEMENT SHALL GIVE THE COMPANY PROPERTY INTERESTS OR DEVELOPMENT RIGHTS FOR ANY PROPOSED PROJECTS FOR WHICH A PROJECT SPECIFIC AGREEMENT HAS NOT BEEN APPROVED BY THE APPLICABLE MUNICIPAL ENTITY AND EXECUTED BY THE APPLICABLE MUNICIPAL ENTITY WITHIN THE TIMEFRAMES DESCRIBED HEREIN.
MASTER DEVELOPER DESIGNATION AGREEMENT
This Agreement (“Agreement” or “MDDA”) dated as of April __, 2006 is between the YONKERS COMMUNITY DEVELOPMENT AGENCY, a public benefit corporation having its principal office at 87 Nepperhan Avenue, Yonkers, New York 10701 (the “CDA”), the CITY OF YONKERS, a municipal corporation, having its principal office at 40 South Broadway, Yonkers, New York 10701 (the “City”), the CITY OF Yonkers Industrial Development Agency, a public benefit corporation of the New York State industrial development agency having its principal office at 40 South Broadway, Yonkers, New York 10701 (the “YIDA”), the CITY OF YONKERS PARKING AUTHORITY, a body corporate and politic duly organized under the New York State Public Authorities Law, having its principal office at 40 South Broadway, Yonkers, New York 10701 (the “YPA”), and STRUEVER FIDELCO CAPPELLI, LLC, a Limited Liability Company with offices at 115 Stevens Avenue, Valhalla, New York 10595 (the “Company”).
RECITALS:
WHEREAS, in furtherance of the objectives of Articles 15 and 15-A of the General Municipal Law of the State of New York, as amended (the “Urban Renewal Law”), the City of Yonkers and the CDA have undertaken a program for the acquisition, clearance, replanning, reconstruction and neighborhood rehabilitation of slum and blighted areas in the City of Yonkers, and in connection with this program, the CDA has been engaged in carrying out a neighborhood development program and urban renewal program, as more particularly set forth in the Modified Urban Renewal Plan for N.D.P. Areas No. 1 and No. 2 (hereinafter referred to as the “Riverview Urban Renewal Plan”); and
WHEREAS, in order to facilitate the objectives of the Riverview Urban Renewal Plan, the CDA has approved a Downtown Waterfront Master Plan (the “Master Plan”) and in connection therewith, the CDA, as lead agency for the implementation of the Master Plan, has also prepared a Final Generic Environmental Impact Statement (“FGEIS”) in compliance with the State Environmental Quality Review Act (“SEQRA”), and by resolution adopted by the CDA on December 16, 1998 approved a Statement of Environmental Findings with respect to the Master Plan (the “Downtown Waterfront Findings Statement”); and
WHEREAS, the Master Plan calls for the redevelopment of a major portion of the downtown waterfront area of the City, extending north and south from the foot of Main Street and situated principally within N.D.P. Area No. 2 of the Riverview Urban Renewal Plan, including Parcels “H” and “I” of the Master Plan (the “Parcels H and I Project”); and
WHEREAS, the City is currently considering undertaking a program for the clearance and reconstruction of certain waterfront areas south of the neighborhoods described in the Riverview Urban Renewal Plan, which areas are in close proximity to the lands described in the Master Plan, and known as the “Ludlow Transit Area” and the “Hudson Riverfront American Sugar Refinery Area”, containing a number of sites that are in need of substantial improvement because of substandard, unsanitary, deteriorated or deteriorating conditions, factors, and characteristics, as well as for other certain areas of the City as described below; and
WHEREAS, in furtherance of the objectives of the Urban Renewal Law, the City and the CDA have undertaken a program for the clearance and reconstruction of the City’s Getty Square central business district, including the area known as “Chicken Island” (generally bounded by Nepperhan Avenue, New Main Street, Palisade Avenue and Elm Street), in accordance with an urban renewal plan known as the Urban Renewal Plan for the Getty Square Urban Renewal Area, dated September 19, 1975 and amended July 10, 1978 (the “Getty Square Urban Renewal Plan”); and
WHEREAS, the development and construction of a minor league ballpark and retail facilities has been proposed as part of an urban redevelopment in the area in downtown Yonkers known as Chicken Island, in accordance with certain amendments to be made to the Getty Square Urban Renewal Plan (referred to herein as the “Chicken Island Project”); and
WHEREAS, on or about June 5, 2003, the Yonkers City Council (“City Council”), as lead agency for the purposes of the Chicken Island Project, circulated and filed a duly adopted Final Environmental Impact Statement (the “Chicken Island FEIS”) together with a notice of completion under SEQRA, and adopted a Statement of Environmental Findings on or about June 24, 2003 (the “Chicken Island Findings Statement”); and
WHEREAS, on or about August 27, 2003, Yonkers Baseball Development, Inc. (“Yonkers Baseball”), an entity wholly-owned by the YIDA, issued a Request for Qualifications (“RFQ”) for a developer to plan, finance, construct, operate and manage urban retail facilities to complement and support the construction and development of a 6,500 seat baseball park on Chicken Island, to reconnect the Chicken Island site with downtown Yonkers, and provide a new downtown destination; and
WHEREAS, Struever Fidelco Yonkers LLC responded to the RFQ, and has since presented to the City and CDA proposals for the development of the Chicken Island Project and the Parcels H and I Project; and
WHEREAS, on July 6, 2005, the Real Estate Committee of the City Council reviewed portions of the development proposal of the Company for the Parcels H and I Project and Chicken Island Project (the “Preliminary Development Proposal”); on July 7, 2005, the City Council designated Struever Fidelco Yonkers LLC as the “qualified and eligible” sponsor under the Urban Renewal Law for the redevelopment of the Parcels H and I Project and the Chicken Island Project subject to the approval of such designation by the CDA; on October 19, 2005, the CDA authorized the designation of Struever Fidelco Yonkers, LLC as a qualified and eligible sponsor under the Urban Renewal Law for the redevelopment of the Parcels H and I Project and the Chicken Island Project; and on or about December 14, 2005, Struever Fidelco Yonkers LLC admitted LC Yonkers, LLC (changing its name to Struever Fidelco Cappelli, LLC, and hereinafter referred to as the “Company”); and
WHEREAS, the Company desires to: (i) modify the Chicken Island Project to, among other things, increase the retail and commercial density and construct the baseball stadium above the retail and commercial improvements; (ii) be designated as the “master developer” for the redevelopment of the Proposed Projects (as hereinafter defined) described in Section 1.1 hereof, and thereafter be designated as the “qualified and eligible sponsor” of those Proposed Projects that are duly constituted urban renewal projects under the Urban Renewal Law; and (iii) establish its right to, from time to time, introduce additional “co-developers” to redevelop any one or more of the Proposed Projects; and
WHEREAS, the Parcels H and I Project and the Chicken Island Project are currently urban renewal projects under the Urban Renewal Law, and the parties acknowledge that to accomplish the goals and objectives of this Agreement, it may be desirable that other Proposed Projects be duly constituted urban renewal projects under the Urban Renewal Law so that the CDA may take the actions contemplated herein; and
WHEREAS, the parties hereto are entering into this Agreement to set forth certain understandings and intentions of the Company, the CDA, the YIDA, the City and the YPA with respect to: (i) the terms and conditions for the Company to first be designated as “master developer” of each Proposed Project, and then, subject in all events to applicable law, as the “qualified and eligible sponsor” under the Urban Renewal Law for each Proposed Project that is a duly constituted urban renewal project (it being understood that designation as the qualified and eligible sponsor of the Parcels H and I Project and the Chicken Island Project has already been made); (ii) the review under SEQRA of the Company’s redevelopment proposals for the Proposed Projects; and (iii) the obligations of the parties to be performed prior to the execution of a Land Disposition Agreement under the Urban Renewal Law and/or purchase and sale agreement and/or separate agreement superseding this Agreement with respect to a Proposed Project, as the case may be (each a “Project Specific Agreement”), between the Company and the CDA the City, the YIDA, and/or the YPA, as applicable (each a “Municipal Entity” and collectively, the “Municipal Entities”), for each Proposed Project; and
WHEREAS, the Company will comply with all relevant requirements of the Urban Renewal Law with respect to designation of the Company as the “qualified and eligible sponsor” of each Proposed Project that is a duly constituted urban renewal project, including the filing with the CDA of a Redeveloper’s Statement of Qualifications and Financial Responsibility (form HUD 6004) and required attachments thereto for each Proposed Project located within a duly established urban renewal area.
IN ORDER TO ACCOMPLISH THE FOREGOING PURPOSES, THE PARTIES HEREBY AGREE AS FOLLOWS:
1.1. The Proposed Projects. The applicable Municipal Entity, and certain project-specific business entities created by the Company (each a “Project Entity”; the term “Company” means “Project Entity” where the context requires) shall execute a separate Project Specific Agreement for the real property to be conveyed by each such Municipal Entity within the project area of each Proposed Project identified below. The Project Specific Agreements will be consistent with the terms and conditions of this Agreement, including, but not limited to, the purchase price to be paid by the Project Entity for such parcels, set forth the specific terms and conditions for the transfers and/or plan of acquisition and transfer of the respective project parcels to the Project Entity, and identify the infrastructure (including, but not limited to, roads, sanitary sewers, domestic and fire service water facilities, stormwater drainage facilities, public parking facilities, and gas, electric and other utilities) (collectively, the “Infrastructure”) required for the Proposed Project. Each Project Specific Agreement shall be subject to the approval of the governing body of the applicable Municipal Entity, and, in the case of a Land Disposition Agreement between the CDA and a Project Entity or a Project Specific Agreement involving transfer of land owned by the CDA or the City, by the City Council.
Struever Fidelco Yonkers LLC has, prior to the date of this Agreement, presented a conceptual Preliminary Development Proposal to the City Council that outlines its development plans for the Parcels H and I Project and the Chicken Island Project. On or about the date of execution of this Agreement by the Company, the Company will coordinate a presentation to the City Council to outline the modifications to the previously presented Preliminary Development Proposal.
The Proposed Projects generally tie together with the initiative to “daylight” the Saw Mill and Nepperhan Rivers and are all described in concept below and on Exhibit A attached hereto with as much detail as currently exists, with the understanding that the project descriptions will be refined and potentially modified during the course of the SEQRA review process for each Proposed Project. The parcels of property on which each Proposed Project is to be developed are identified in Schedule 1.1(a) through (j) attached hereto, together with an identification of which parcels, if any, are currently owned by the Municipal Entities. As of the date hereof, the Proposed Projects are as follows:
(a) “Parcels H and I Project” under the Master Plan, to be developed on the parcels described in Schedule 1.1(a);
(b) “Gateway District Project” (as hereinafter defined), including the Chicken Island Project and the Main Street and Library Project (as hereinafter defined), to be developed on the parcels described in Schedule 1.1(b);
(c) “Ludlow Transit Area Project”, to be developed on the parcels described in Schedule 1.1(c);
(d) “American Sugar Refinery Area Project”, to be developed on the parcels described in Schedule 1.1(d);
(e) “Downtown Waterfront Corridor Project”, to be developed on the parcels described in Schedule 1.1(e);
(f) “Alexander Street Area Project”, to be developed on the parcels described in Schedule 1.1(f);
(g) “Post Office Square Project”, to be developed on the parcels described in Schedule 1.1(g); and
(h) “Nepperhan Valley Area Project”, to be developed on the parcels described in Schedule 1.1(h);
(i) “Post Office Project”, to be developed on the parcels described in Schedule 1.1(i); and
(j) “Larkin Square Project”, to be developed on the parcels described in Schedule 1.1(j).
1.2. City Representative(s). In order to coordinate all interaction with the Municipal Entities, the Mayor shall, after consultation with the Company, appoint by letter to the Company from time to time no more than two individuals whose primary responsibility shall be managing the Proposed Projects on behalf of the Municipal Entities, and assisting the Company in pursuing all necessary approvals from the Municipal Entities and any affiliated local development corporations and other governmental authorities of the City (the “City Representative”). The Company shall reimburse the City for the reasonable costs of services provided by the City Representative(s) in connection with the Proposed Projects, provided that from time to time upon the Company’s reasonable request, the City shall provide the Company with an accounting of such costs.
1.3. Project Materials. Upon execution of this Agreement, to the extent available, the Company shall deliver to the City Representative (and to the City Council, if the City Council so requests) copies of its development plans and program for each Proposed Project prepared by the Company prior to the date hereof. After the date hereof, the Company shall deliver to the City Representative copies of all other development plans and programs prepared by the Company during the term hereof relating to the Proposed Projects, as they become available.
Upon the execution of this Agreement by the Company (to the extent it has not already done so) and thereafter during the term of this Agreement, the Municipal Entities agree to provide the Company with: (i) copies of the Riverview Urban Renewal Plan, the Getty Square Urban Renewal Plan, and any proposed amendments to those plans; (ii) any other existing or proposed urban renewal plans and studies that have been prepared by or on behalf of the CDA or City with respect to any existing or proposed urban renewal areas within which any Proposed Project is or shall be located, as the case may be; (iii) copies of the Master Plan and the other duly adopted zoning and land use plans of the City (collectively, the “Comprehensive Plan”); (iv) all plans and information regarding existing City Infrastructure located within and in the vicinity of the site of each Proposed Project; and (v) such other information, documents, plans and studies as may be reasonably requested by the Company. The Company shall obtain title reports on all relevant parcels related to the Proposed Projects. Except with respect to representations expressly made by the Municipal Entities in this Agreement, the title reports shall be accepted by the Company in lieu of any other representations by the Municipal Entities as to the status of title to any parcel.
1.4. Development Proposals for the Proposed Projects.
(a) Parcels H and I Project. The Company proposes to redevelop the Parcels H and I Project as approximately 386 residential units within several buildings of varying heights with one tower of up to 30 stories and certain related infrastructure therefor, including the extension of Water Grant Street to Main Street; the construction of ancillary parking for the residential units of the Parcels H and I Project; the construction, subject to the receipt of sufficient Public Funding (as hereinafter defined), of a parking area for Scrimshaw House (which currently uses the site of Parcels H and I for parking); and the continuation of waterfront open space consistent with improvements to the north of this site. It is understood and agreed that amendments to the Master Plan and/or Riverview Urban Renewal Plan as adopted by the CDA are required in connection with the Parcels H and I Project. In connection therewith, the CDA agrees that it will, using commercially reasonable best efforts, seek to amend the Master Plan to permit development of the Parcels H and I Project as set forth in this Agreement.
Based on the Deed Chain Search run in Westchester County Clerks Office by Judicial Research Corp and dated October 27, 2003, the CDA represents that it is the owner of the parcels within the Parcels H and I Project area.
The parties acknowledge that the approval by the City Council and CDA of the Company as the qualified and eligible sponsor of the Parcels H and I Project was scheduled to expire on December 31, 2005. The City and CDA agree that they shall extend the approval of the Company as the qualified and eligible sponsor of the Parcels H and I Project (as modified by the proposal of the Company) through the date which is 180 days after this Agreement is approved by the City Council and CDA and executed by the Mayor and CDA, subject to the requirement that a Land Disposition Agreement is approved by the City Council and CDA and is executed by the Company by that date (subject, in all events, to the requirements of SEQRA).
It is currently contemplated that the Parcels H and I Project will be eligible for Brownfield Redevelopment Tax Credits (“BRTC”), subject to application by the Company to the New York State Department of Environmental Conservation (“DEC”). In connection therewith, the City agrees that it will, using commercially reasonable best efforts, cooperate as necessary to secure such credits for the Company.
(b) The Gateway District Project. The Company proposes to redevelop the “Gateway District” contained within the Getty Square Urban Renewal Plan (the “Gateway District Project”). The Gateway District Project as currently proposed is described in Exhibit A. The Company contemplates that the Gateway District Project will ultimately consist of (i) the Chicken Island Project, and (ii) the redevelopment of Main Street and the Library located on Main Street for commercial and residential uses (the “Main Street and Library Project”) (the “Chicken Island Project” and the “Main Street and Library Project” are collectively referred to as the “Gateway District Project”).
(i) Chicken Island Project. The Company has submitted a proposal to develop a modified Chicken Island Project, which entails the development and construction of an approximately 6,000 seat capacity minor league qualified baseball park (or “ballpark”) above a mixed use retail development of up to 750,000 square feet on the Chicken Island site, and up to 800 residential units on the Chicken Island site and within several buildings adjacent to the Chicken Island site and within the Gateway Project area. It is understood and agreed that the current Getty Square Urban Renewal Plan proposes the development of a planned regional retail center and an expanded government center, as well as the rehabilitation of remaining downtown buildings and uses, and that amendments to the Getty Square Urban Renewal Plan will be required in connection with the Chicken Island Project. In connection therewith, the CDA agrees that it will use commercially reasonable best efforts to amend the Getty Square Urban Renewal Plan to permit development of the Chicken Island Project as set forth in this Agreement. If any changes are made to the Chicken Island Project that require a change to the Chicken Island Findings Statement or the Chicken Island FEIS, a Supplemental Environmental Impact Statement will be required. It is currently contemplated that the Chicken Island Project will be eligible for BRTC, subject to application by the Company to the DEC. In connection therewith, the City agrees that it will, using commercially reasonable best efforts, cooperate as necessary to secure such credits for the Company.
The City and the Company agree that: (1) the City shall cause the School Street firehouse to be vacated as soon as is practicable after the full execution of this Agreement, but in no event later than the date on which ownership of that parcel is to be transferred to the Company pursuant to the applicable Land Disposition Agreement; (2) the Company shall at its cost and expense design and construct a new firehouse to replace the School Street firehouse at a City owned site yet to be identified by the City; (3) the City shall “de-map” and discontinue School Street as a public street of the City (by such date as is provided in the applicable Land Disposition Agreement(s) for the Chicken Island Project); and (4) the Company shall construct the same number of public parking spaces in the Chicken Island Project area as currently exists in the public parking lot on the Chicken Island site.
The parties acknowledge that the Company has not yet been designated as the qualified and eligible sponsor for the redevelopment of certain privately owned parcels within the area of the Chicken Island Project (as it is proposed to be modified by the Company), and that the approval by the City Council and CDA of the Company as the qualified and eligible sponsor of the Chicken Island Project is scheduled to expire on March 31, 2006. The City and CDA agree to cause the Company to be designated as the qualified and eligible sponsor for the redevelopment of those private parcels, and to extend the approval of the Company as the qualified and eligible sponsor of the Chicken Island Project (as modified by the proposal of the Company) through the date which is one hundred eighty (180) days after the approval of this Agreement by the City Council and CDA and execution by the Mayor and CDA, subject to the requirement that a Land Disposition Agreement is approved by the City Council and CDA and is executed by the Company by that date (subject, in all events, to the requirements of SEQRA).
Notwithstanding any provision of this Agreement to the contrary, within one hundred eighty (180) days after the approval of this Agreement by the City Council, the YIDA and/or CDA shall, to the extent permitted by law and subject to Section 1.5 herein, take preliminary actions under the New York Eminent Domain Procedure Law related to the acquisition by condemnation of any privately owned parcels in the Chicken Island Project area (as it is proposed by the Company to be modified).
(ii) Main Street and Library Project. As part of the Gateway District Project, the Company proposes to redevelop Main Street and the Library located on Main Street, for commercial and residential redevelopment. It is currently contemplated that the Main Street and Library Project will be eligible for BRTC, subject to application by the Company to the DEC. In connection therewith, the City agrees that it will, using commercially reasonable best efforts, cooperate as necessary to secure such credits for the Company.
(c) Larkin Square Project. The Company proposes to redevelop the Larkin Square Project for commercial and residential redevelopment. In connection with the Larkin Square Project, the Company will undertake the “daylighting” of portions of the Saw Mill and Nepperhan Rivers (the “River Daylighting”), from the Nepperhan Valley section of the City of Yonkers, through the Chicken Island Project and ending on Larkin Street in the Downtown Waterfront District of the City of Yonkers, and in its course passing through urban renewal areas, including the Getty Square Urban Renewal Area and the Riverview Urban Renewal Area. The concept of “daylighting” refers to exposing waters that have been covered or buried, to create pedestrian-friendly walks and public spaces within an urban landscape.
The River Daylighting is subject to the receipt of sufficient Public Funding to pay all of the costs of the project. The parties will, using continuous, commercially reasonable best efforts, seek to obtain such Public Funding. Subject to receiving sufficient Public Funding, as determined by the Company in its sole discretion, the Company has agreed to undertake the River Daylighting.
It is currently contemplated that the Larkin Square Project will be eligible for BRTC, subject to application by the Company to the DEC. In connection therewith, the City agrees that it will, using commercially reasonable best efforts, cooperate as necessary to secure such credits for the Company.
(d) Development Proposals for all Proposed Projects Except the Parcels H and I Project and the Chicken Island Project. The parties acknowledge that as of the date hereof, preliminary development proposals for all Proposed Projects other than the Parcels H and I Project and the Chicken Island Project (all such other Proposed Projects hereinafter collectively referred to as the “Phase II Projects”) have not yet been formulated. Within one hundred eighty (180) days after the approval of this Agreement by the Municipal Entities and execution of this Agreement by Company, the Mayor and the Municipal Entities, the Company will present to the City Council a conceptual master plan for the redevelopment of all of the Phase II Projects. Upon approval by the City Council of the conceptual master plan for the Phase II Projects, Exhibit A to this Agreement shall be deemed to be amended without need for any other or further act by any of the parties; provided, however, that the parties agree to execute appropriate documents to memorialize such amendments.
1.5 Assemblage of the Proposed Project Parcels; Condemnation; Purchase Price. Schedule 1.1(a) through (j) to this Agreement identifies the parcels in each Proposed Project area that to the Municipal Entities’ best knowledge, are currently owned by the Municipal Entities. To the extent that any Proposed Project involves parcels not owned by a Municipal Entity, marshaling said property and/or obtaining site access or site control agreements shall be the responsibility of the Company. However, in the event that the Company is unable, after good faith effort, to acquire any parcel of property not currently owned by a Municipal Entity needed for the development of a Proposed Project, then, at the expense of the Company and otherwise subject to all applicable State and local law, the Municipal Entities agree to use commercially reasonable best efforts to condemn parcels to complete the marshalling of property for the Proposed Project, or to cause the Empire State Development Corporation (“ESDC”) to condemn such properties. The Company agrees that it shall be solely liable for all expenses of condemnation, including but not limited to, the costs and expenses of outside legal counsel and other consultants to the condemning authority, and all acquisition damages paid to the owners of the property taken, whether such payments are voluntarily agreed to by the property owner, or awarded by a court (all such costs and expenses, and condemnation payments, “Condemnation Costs”). Notwithstanding the foregoing, the parties agree that the Company may obtain Public Funding to defray Condemnation Costs for which it is liable.
Notwithstanding any provision of this Agreement to the contrary: (i) it is the intent of the City and CDA to amend the Riverview Urban Renewal Plan and the Getty Square Urban Renewal Plan as necessary to accommodate the Parcels H and I Project and Chicken Island Project, respectively, and, if it is determined by the parties to be necessary or desirable to accomplish the goals and objectives of this Agreement, to establish one or more additional urban renewal plans, such that other Proposed Projects are located within urban renewal areas duly constituted under the Urban Renewal Law (and if located in urban renewal areas, to cause property owned by the Municipal Entities in such areas to be conveyed to the CDA for disposition to the Company); provided, however, that the failure of the CDA and City to take any such action shall not preclude the assemblage of the parcels necessary for a Proposed Project by any other lawful means, or the development of a Proposed Project; (ii) the purchase price to be paid by the Company for Parcels H and I and all property owned by any Municipal Entity in the Chicken Island Project area and the Main Street and Library Project area (Block 475, Lots 43, 50, 51, 55, 59 and 75; Block 483, Lots 50 and 60; Block 485, Lots 1, 2, 3, 4, 6, 7, 8, 10, 12, 14, 16 and 18; Block 486, Lots 15 and 16; Block 640, Lots 1, 25 and 38; Block 643, Lots 1, 24 and 40; Block 2003, Lots 24 and 37) shall be the aggregate total of Ten Million Four Hundred Thirty Two Thousand Dollars ($10,432,000), which is equal to One Million Two Hundred Thousand Dollars ($1,200,000) per acre to be transferred by the Municipal Entities to the Company (less acreage designed for public use or dedicated exclusively for public parking); (iii) the purchase price to be paid by the Company for any property owned by any Municipal Entity as of the date hereof and located within any other Proposed Project area shall be One Million Two Hundred Thousand Dollars ($1,200,000) per acre transferred by such Municipal Entity to the Company (less any acreage designed for public use or dedicated exclusively for public parking); (iv) the purchase price for any property condemned after the date of this Agreement by any Municipal Entity and transferred to the Company shall be the actual amount of Condemnation Costs incurred; and (v) the purchase price to be paid by the Company for any property owned by any Municipal Entity shall be paid on the closing date under the applicable Project Specific Agreement for such property, which shall be the date which is thirty (30) days after the date on which all governmental land use approvals for the development of the Proposed Project on such property have become final and unappealable.
In addition, notwithstanding any provision of this Agreement to the contrary, the parties agree that the Project Specific Agreement for the Downtown Waterfront Corridor Project shall include a provision whereby the air rights currently owned by CDA over the “Shop Rite Parcel” are transferred to the Company at appraised value provided said amount is reinvested by the CDA into the Downtown Waterfront Corridor Project upon redevelopment.
1.6. Assistance. The City will invite the ESDC to assist in the study and funding of the respective Proposed Projects, and potentially, to condemn property needed for the development of a Proposed Project.
1.7. Infrastructure Required for the Proposed Projects. It is currently contemplated that the cost of the Infrastructure required for the Proposed Projects, will be funded with: (i) Public Funding in the form of federal, state and other grants and/or subsidies, without direct cost (other than in connection with TIF programs) to the Municipal Entities or the respective Project Entities; (ii) to the extent that any Proposed Project is assisted by the YIDA (as set forth in Section 2.2(a), below), the payments in lieu of taxes to be made by the Company; and (iii) with respect to public parking facilities, the proceeds of bonds issued by the YPA. The parties contemplate utilizing “Tax Increment Financing”, whether under the New York State Municipal Redevelopment Law or the New York State Empire Zones Act (or both) (“TIF”) as one of the sources of funding to pay the costs of Infrastructure needed for the Proposed Projects (to the extent that any Proposed Project, or any portion of any Proposed Project, is not exempted from the payment of real estate taxes by virtue of assistance by the YIDA). Upon presentation of this Agreement for review by City Council, appropriate resolutions shall be offered for consideration by the City Council to establish TIF in the Proposed Project areas. Federal, State and other governmental and public grants and/or subsidies and TIF are collectively referred to herein as the “Public Funding”. The City, CDA and YIDA agree to use continuous best efforts to pursue all available Public Funding in connection with each of the Proposed Projects. To the extent that Public Funding is not available, or is not sufficient to fund the Infrastructure requirements for the Proposed Projects, and the respective Project Entity elects at its sole discretion to complete improvements to Infrastructure for which the Project Entity receives no Public Funding, the hard and soft costs related to such improvements shall be a credit against the purchase price of the parcels acquired from the Municipal Entities.
Notwithstanding any provision of this Agreement to contrary, TIF shall not be used to defray any potion of the purchase price for the acquisition by the Company of any property owned as of the date hereof by any Municipal Entity.
1.8. Financial Commitments of the Company/Project Entities. During the term of this Agreement, and in addition to other undertakings set forth elsewhere herein, the Company and/or the respective Project Entities, as the case may be, shall undertake certain tasks described below, subject in each case to the other provisions of this Agreement:
(a) The Project Entities shall work with the City Representative to negotiate the Project Specific Agreements to acquire the parcels necessary from the Municipal Entities to develop the Proposed Projects, and agree that the Project Entities shall pay the agreed upon purchase price for such parcels and reasonable relocation costs, if applicable, subject to all applicable laws. The Project Entities shall also work with the City Representative to negotiate the Development Leases (as hereinafter defined).
(b) The respective Project Entities shall, during the term of this Agreement, strive to contemporaneously develop the Parcels H and I Project and the Gateway District Project, as urban renewal projects, including taking action to acquire the properties necessary for development of the Gateway District Project, and assisting the CDA and/or the City in its condemnation, acquisition and land disposition activities related to the Gateway District Project. The respective Project Entities shall use their commercially reasonable best efforts to negotiate and execute Land Disposition Agreements and Development Leases for the Parcels H and I Project and the Gateway District Project, respectively, as soon as is practicable following the approval of this Agreement by the City Council, CDA, YPA and YIDA, and execution by the Mayor, CDA, YPA and YIDA. The Parcels H and I Project shall not be developed without development of the Chicken Island Project.
(c) The Company may at any time during the term of this Agreement, as it may elect in its sole discretion, admit a financial partner(s), co-venturer(s) and/or “co-developer(s)” for any one or more of the Proposed Projects. The Company shall provide the City Representative information concerning the resources, experience and proposed role of such partner(s), co-venturer(s) or “co-developers”, as the Municipal Entities may reasonably request.
1.9. Other Commitments of the Company.
(a) The parties acknowledge that the Company has already been designated as the “qualified and eligible sponsor” of the Parcels H and I Project and the Chicken Island Project. As soon as is practicable after any of the other Proposed Projects is established as a duly constituted urban renewal project under the Urban Renewal Law (and after the City Council has approved a preliminary development proposal for that Proposed Project), the Company and/or Project Entity shall file with the CDA a Redeveloper’s Statement of Qualifications and Responsibility (HUD form 6004) and required attachments thereto. To the extent permitted by law, the CDA agrees that upon receipt of HUD form 6004, it shall immediately commence appropriate proceedings under the Urban Renewal Law to designate the Company as the “qualified and eligible sponsor” of those Proposed Projects which are located in duly constituted urban renewal areas.
Notwithstanding anything in this Agreement to the contrary, the approval of this Agreement by the Municipal Entities and execution of this Agreement by such parties and by the Company, constitutes the designation by the Municipal Entities of the Company as the “master developer” for all of the Proposed Projects, subject to all other terms and conditions of this Agreement.
(b) The Company shall, at its sole cost and expense, and within the time periods set forth in Section 3.2, undertake all studies and applications required for the designated lead agency under SEQRA to comply with the SEQRA and for the land use approvals necessary to develop the Proposed Projects. As soon as is practicable following the execution of this Agreement, the Municipal Entities will provide to the Company copies of all environmental and historic resource studies and materials that have been prepared by or on behalf of the Municipal Entities or are otherwise in the possession, custody or control of the Municipal Entities with respect to any areas contained within the Proposed Projects.
(c) Subject to (i) being designated as the “qualified and eligible sponsor” for any Proposed Project that is currently a duly constituted urban renewal project, and (ii) this Agreement being approved by the appropriate governing bodies of the applicable Municipal Entities, the Company or Project Entity, as the case may be, may, if applicable, and if permitted by the DEC, submit an application to the DEC to undertake environmental remediation of any of the Proposed Projects as a “volunteer” under the New York State Brownfield Cleanup Program. Any related environmental investigation and remediation undertaken, shall be at the sole cost and expense of the Company or Project Entity, as the case may be. If deemed necessary by the Company, the Company shall also secure an environmental insurance policy that protects all the parties to this Agreement from future environmental liability and that qualifies for the BCP Environmental Remediation Insurance Credit. The applicable Municipal Entities shall be named as additional insureds and appropriate hold harmless provisions shall be agreed to as part of any site access/remediation agreement which may be entered into by the parties.
(d) The Company shall work with the City Representative in an effort to identify Public Funding for Infrastructure costs, including TIF, and through the application to Infrastructure costs of payments in lieu of taxes under the Development Leases, as shall be approved by the City Council on a project by project basis.
(e) The Company shall, as soon as practicable and so as to be timely concluded for financing purposes, at its sole cost and expense, make application to the City Council, Yonkers City Planning Board (the “Planning Board”) and/or the Yonkers Zoning Board of Appeals (“ZBA”), as may be applicable, for any and all land use approvals necessary to develop the Parcels H and I Project and the Chicken Island Project, and make any changes to its development plans which are consistent with the terms of this Agreement and the Land Disposition Agreements and are reasonably required by the Planning Board or the ZBA for the purposes of the approvals of the Planning Board or the ZBA. The Company shall, within the time periods set forth in Section 3.2, at its sole cost and expense, make application to the City Council, Planning Board and/or the ZBA, as may be applicable, for any and all land use approvals necessary to develop any of the other Proposed Projects.
(f) The Company shall reimburse and/or pay certain expenses of the applicable Municipal Entities (including Yonkers Baseball) in the amount of Nine Hundred and Eighty-Eight Thousand Two Hundred and Twelve Dollars and 23/100 ($988,212.23), representing amounts incurred by such agencies to date in connection with the Proposed Projects (the “Reimbursement”). The Reimbursement shall be paid upon the execution and delivery by the applicable Municipal Entities of the Land Disposition Agreements for the Parcels H and I Project and Chicken Island Project (it being agreed that one project shall not be developed without the other), which gives the Company property rights in the Parcels H and I Project and the Chicken Island Project that are sufficient to secure sufficient financing from an Institutional Lender (as that term is defined in each Project Specific Agreement) to develop those Proposed Projects, as determined by the Company or Project Entity in its sole discretion.
(g) In addition to other costs to be paid as described in this Agreement, and fees to be paid to the City as part of the zoning and building permit process, the Company or applicable Project Entity shall be liable for and shall reimburse the applicable Municipal Entities up to $100,000 in the aggregate for the costs and expense of their consultants in connection with the review of the Proposed Projects under SEQRA and up to $200,000 in the aggregate for the costs and expense of other consultants to the City Council (provided, however, that the Company may from time to time and in its sole discretion agree to reimburse in excess of that amount) (the “Reimbursable Municipal Expenses”). The Company or Project Entity shall pay Reimbursable Municipal Expenses within fifteen (15) days after the date on which copies of the bills and/or invoices to be paid are delivered to the Company or Project Entity. Any disputes regarding Reimbursable Municipal Expenses shall be decided by arbitration as provided in Section 6.13; provided, however, that the pendency of such dispute shall not be cause for non-performance by any party of any of its obligations hereunder. The Company agrees to pay the reasonable counsel fees and expenses of Harris Beach PLLC and Ferrick Lynch MacCartney PLLC, acting, respectively, as transaction counsel and general counsel to the Municipal Entities in accordance with separate agreements, and subject to budgets to be agreed upon by the Company and counsel. Upon the execution of this Agreement by the Mayor and approval of this Agreement by the City Council, the Company shall deposit the amount of three hundred thousand ($300,000) dollars with the City, which funds shall be held in escrow and applied solely to the payment of Reimbursable Municipal Expenses.
2.1. Essential Terms. Except to the extent that the purchase price is set forth in this Agreement, the purchase price to be paid by the respective Project Entity and all other essential terms and conditions of the disposition and transfer of the property for each Proposed Project, including, without limitation, in connection with requirements and contingencies relating to title, environmental, financing, and other conditions precedent to closing on such property, shall be set forth in detail in the Project Specific Agreement for the respective Proposed Projects. It is the intent of the parties hereto that this Agreement and each Project Specific Agreement meets or will meet the requirements of GML Section 507(2)(d) for the urban renewal projects, and to enter into a Project Specific Agreement for each Proposed Project irrespective of whether the Proposed Project is a duly constituted urban renewal project.
2.2. Development Leases.
(a) It is the intent of the parties that the YIDA and each Project Entity shall enter into a straight-lease transaction(s), whereby the parcels within each Proposed Project area (whether acquired by the Company/Project Entity from a private party or from a Municipal Entity) shall be conveyed by lease or deed by the Project Entity to the YIDA and leased by the YIDA back to the Project Entity (a “Development Lease”), such that the Company will benefit from a sales tax exemption, mortgage recording tax exemption, and real property tax exemption, subject to an agreement for payments in lieu of taxes. The Development Leases will contain such terms and conditions as are reasonably required to accommodate leasehold financing.
(b) Term; Annual Rent. The Development Lease(s) shall be for a term to be determined by the future agreement of the parties, but in no event less than ten (10) years. The Development Leases shall require the Company to annually pay to the YIDA a reasonable administrative fee and/or issuer fee at closing.
(c) Net Lease. The Development Leases shall be net leases. The Company shall be responsible for all maintenance and repairs of the Proposed Projects and their operating expenses, including but not limited to real estate taxes (in the form of payments in lieu of taxes), water, gas, electric and sewer charges and utilities; and any other state, county or municipal charges, and any special assessments, not subject to available exemptions.
(d) Insurance. During construction and the term of the Development Lease, the Company shall obtain commercial public liability insurance, on such terms and in such amounts reasonably acceptable to the YIDA, naming the YIDA and any other applicable Municipal Entities as additional insureds.
(e) Urban Renewal. The Development Leases shall be conditioned upon the Company’s agreement to develop and operate the Proposed Projects as required by the Project Specific Agreements, and, if applicable, as urban renewal projects for the purposes of the Urban Renewal Law, in accordance with the applicable urban renewal plans (until such plans expire), as such plans may be amended from time to time.
(f) Leasehold Mortgage(s). The Development Leases shall provide that the YIDA will cooperate with the Company in a commercially reasonable manner to meet the requirements of the Company’s lenders, so that the Company may mortgage its interest in the Proposed Projects and grant a security interest in personal property and improvements situated thereon, provided: (i) the holder of such mortgage shall be an Institutional Lender, as defined in each Project Specific Agreement (and Development Lease), and (ii) no mortgage shall extend to, affect, or be a lien or encumbrance upon, the estate and interest of the YIDA (except to the extent necessary to grant a mortgage tax exemption) in the Proposed Projects or any part thereof. The Company may, in connection with the execution and delivery of a mortgage, collaterally assign the Development Lease to the Institutional Lender, if required, as additional security for such financing, provided that the execution and delivery of a mortgage will not give nor shall be deemed to give a lender any greater rights against the YIDA than those granted to the Company under the Development Lease.
2.3. Transfer. Subject to the terms of the Project Specific Agreement and Development Lease for each Proposed Project, it is contemplated that the closing under a Project Specific Agreement and the execution of a Development Lease for that Proposed Project shall occur contemporaneously.
2.5. Condemnation Awards. The Project Specific Agreement for a Proposed Project will, if applicable, require the respective Project Entity to provide credit facilities to the applicable condemnor to secure the payment by the Company to the condemnor of the total estimated amount of acquisition damages (as determined by the condemnor’s appraiser in consultation with the Project Entity) required to be paid by the condemnor to the condemnee for any real property to be condemned subsequent to the execution of the Project Specific Agreement that the Company commits to acquire after condemnation. The condemnor will in turn pay acquisition damages to the affected condemnees, as required by applicable law and as set forth in the Project Specific Agreements for the Proposed Projects.
2.6. Downpayment Deposits. As set forth in the respective Project Specific Agreements, certain downpayment deposits shall be required of the Project Entities for the respective Proposed Projects, constituting good faith deposits to be applied as a credit against the purchase price required to be paid under the respective Project Specific Agreements (each a “Deposit”). Such Deposits may be in the form of a Letter of Credit, posted by the Project Entity. The amount of the Deposit shall be Two Hundred Thousand Dollars ($200,000) for each Proposed Project, to be paid upon the execution by the City, CDA or other Municipal Entity of the Project Specific Agreement for the respective Proposed Project.
2.7. Closing Costs. The real property transfer taxes payable by reason of the deed and/or lease by the Project Entity to the YIDA, and each Development Lease, are exempt from payment. Accordingly, any real property transfer taxes which occur upon the termination of the Development Lease and any costs related to the recordation of the Development Lease or the deed or any financing documents shall be paid by the Company. The Company shall pay the costs of any title insurance or surveys obtained by the Company. All other closing costs not specifically allocated by this Agreement shall be allocated in accordance with local custom in Westchester County.
2.8. Non-Binding Effect. The Company acknowledges and agrees that this Agreement has been amended since review by City Council and CDA and as such the Company agrees that this Agreement is not binding on the City or CDA until the City Council and CDA, respectively, have approved this Agreement. NO PROPERTY INTEREST OR DEVELOPMENT RIGHTS SHALL ARISE UNDER THIS AGREEMENT. THE PARTIES INTEND TO OUTLINE THEIR MUTUAL UNDERSTANDINGS AS OF THE DATE OF THIS AGREEMENT AND THE COMPANY’S RIGHTS TO THE PROPOSED PROJECTS SHALL BE LIMITED TO THE RIGHTS EXPRESSLY SET FORTH HEREIN. PROPERTY INTERESTS AND DEVELOPMENT RIGHTS SHALL ONLY ARISE UPON APPROVAL OF A RESPECTIVE PROJECT SPECIFIC AGREEMENT BY THE APPLICABLE MUNICIPAL ENTITY AND EXECUTION OF THE RESPECTIVE PROJECT SPECIFIC AGREEMENT BY THE APPLICABLE MUNICIPAL ENTITY AND THEN THE PROPERTY INTERESTS AND DEVELOPMENT RIGHTS SHALL BE LIMITED TO THE RIGHTS SPECIFICALLY DESCRIBED IN THE RESPECTIVE PROJECT SPECIFIC AGREEMENT. NEITHER THE EXISTENCE OF THIS AGREEMENT NOR THE EXECUTION OF ANY PARTICULAR PROJECT SPECIFIC AGREEMENT SHALL GIVE THE COMPANY PROPERTY INTERESTS OR DEVELOPMENT RIGHTS FOR ANY PROJECTS FOR WHICH A PROJECT SPECIFIC AGREEMENT HAS NOT BEEN APPROVED BY THE APPLICABLE MUNICIPAL ENTITY AND EXECUTED BY THE APPLICABLE MUNICIPAL ENTITY WITHIN THE TIMEFRAMES DESCRIBED HEREIN.
3.1 Consultation. It is the intent of the parties that during the term of this Agreement, representatives of the Company and the applicable Municipal Entities, including the City Representative and representatives of the YIDA shall meet regularly to confer about the progress of the parties’ activities under this Agreement. The parties shall endeavor to meet no less frequently than in two week intervals, unless otherwise agreed to by the parties.
3.2 Certain Performance Milestones; Term.
(a) This Agreement shall terminate with respect to the Parcels H and I Project and Chicken Island Project if the Company has failed to submit a preliminary Draft Environmental Impact Statement for the Parcels H and I Project and Chicken Island Project to the designated lead agency under SEQRA and prepared and submitted all relevant applications for discretionary land use approvals to the City Council, Planning Board and/or ZBA, as the case may be, by the which is one hundred eighty (180) days after the approval of this Agreement by the City Council and CDA and execution by the Mayor and CDA.
(b) This Agreement shall terminate with respect to the Phase II Projects if: (i) the Company fails to submit a conceptual master plan for the Phase II Projects to the City Council for its approval by the date which is one hundred eighty (180) days after the approval of this Agreement by the Municipal Entities and execution of this Agreement by Company, the Mayor and the Municipal Entities; or (ii) the Company fails to submit site specific development proposals (the “Phase II Project Development Proposals”) for the Phase II Projects to the City Council with respect to any Phase II Projects involving lands owned by the City and/or CDA, and to the YIDA for its approval for all other Phase II Projects, for approval by the date which is three hundred sixty (360) days after the approval of this Agreement by the Municipal Entities and execution of this Agreement by Company, the Mayor and the Municipal Entities.
(c) Notwithstanding any other term or condition contained herein: (i) from and after the approval by the City Council of the Phase II Project Development Proposals, the Company agrees that it shall use its best, commercially reasonable efforts to privately acquire the parcels within the Phase II Project areas and shall in good faith negotiate Project Specific Agreements for each Phase II Project, and shall use its best, commercially reasonable, efforts to as soon as is practicable after the negotiation of a Project Specific Agreement for a Phase II Project is completed to the satisfaction of the Company and the applicable Municipal Entities, submit to the designated lead agency under SEQRA appropriate materials to commence the SEQRA review process for such Phase II Project, and shall prepare and submit all relevant applications for discretionary land use approvals for such Phase II Project to the City Council, Planning Board and/or ZBA, as the case may be; (ii) this Agreement shall terminate as to any Proposed Project once a Project Specific Agreement is executed such that the parties operate under the terms of the Project Specific Agreement for the Proposed Project; and (iii) this Agreement in all events terminates as to any Phase II Project if a Project Specific Agreement is not executed for such Phase II Project by the date which is five (5) years after the date of full execution of this Agreement by the Company and the Municipal Entities.
(d) Notwithstanding any other term or condition contained herein, this Agreement shall terminate with respect to the American Sugar Refinery Area Project on the date which is three (3) years after the date of execution hereof if by such date, the Company fails to submit to the designated lead agency all necessary studies and materials for review of such Proposed Project under SEQRA and prepare and submit to the Planning Board and/or ZBA all relevant applications for discretionary land use approvals for such Proposed Project. If despite commercially reasonable good faith efforts, the Company has not obtained site control of the American Sugar Refinery property by said date, then provided that the Company is not then in default under any Project Specific Agreement for any other Proposed Project, this Agreement shall be further extended with respect to the American Sugar Refinery Area Project until the date which is six (6) years after the execution of this Agreement (the “Extension Date”), and shall terminate with respect to the American Sugar Refinery Area Project on the Extension Date if by such date, the Company fails to submit to the designated lead agency all necessary studies and materials for review of such Proposed Project under SEQRA and prepare and submit to the Planning Board and/or ZBA all relevant applications for discretionary land use approvals for such Proposed Project.
4.1 Default by the Municipal Entities.
(a) If any of the Municipal Entities fails to comply with any provision of this Agreement, or is otherwise in breach of this Agreement, and such failure continues for more than thirty (30) days after written notice from the Company is given to the City Representative that specifies the failure and requires it to be remedied, such failure shall constitute an event of default (a “Municipal Default”); provided, however, that if any such default is not reasonably capable of cure within thirty (30) days, then provided the Municipal Entity immediately commences to cure and diligently prosecutes the same, such cure period shall be extended for an additional period of time not to exceed one hundred eighty (180) days.
(b) In the event of a Municipal Default, the Company, in its discretion, may:
(i) Waive strict compliance with the pertinent provision of this Agreement and provide the Municipal Entity with an additional time period within which to rectify, or “cure” the Municipal Default; or
(ii) Terminate this Agreement, and upon such termination, the City shall be liable for and shall promptly reimburse to the Company: (a) all Reimbursable Municipal Expenses in connection with the Proposed Projects previously paid by the Company (and any Project Entities) to the Municipal Entities; and (b) all costs and expenses paid by the Company and any Project Entity to its outside consultants (but not legal counsel) in connection with this Agreement and the SEQRA review of the Proposed Projects, and upon such reimbursement, the City and CDA shall own the plans and specifications prepared by the Company for the Proposed Projects.
(iii) In addition to any other rights and remedies available at law or in equity, be entitled to seek equitable relief including, but not limited to, specific performance, with respect to the Municipal Default; provided, however, that no Municipal Entity shall be required to condemn any property, and further provided that the City shall not be liable for any consequential damages (except for the amounts set forth in subsection (ii), above) except in the event of willful misconduct and/or bad faith by a Municipal Entity.
(c) Nothing in this Agreement is intended to deprive the City Council, or any City board or commission, of its ability to review and approve or disapprove requested actions related to any of the Proposed Projects. The City shall make all good faith efforts to effectuate this Agreement.
4.2 Default by Company.
(a) If the Company fails to comply with any provision of this Agreement, or is otherwise in breach of this Agreement, and such failure continues for more than thirty (30) days after written notice from the City Representative is given to the Company that specifies the failure and requires it to be remedied, such failure shall constitute an event of default (a “Company Default”); provided, however, that if any such default is not reasonably capable of cure within thirty (30) days, then provided the Company immediately commences to cure and diligently prosecutes the same, such cure period shall be extended for an additional period of time not to exceed one hundred eighty (180) days. Notwithstanding any provision of this Agreement to the contrary, if this Agreement is terminated by the Municipal Entities with respect to any Proposed Project pursuant to Section 3.2, the Company shall pay any remaining unpaid Reimbursable Municipal Expenses of the Municipal Entities under this Agreement with respect to the terminated Proposed Project.
(b) In the event of a Company Default, the City, acting on behalf of itself and the Municipal Entities, may:
(i) Waive strict compliance with the pertinent provision of this Agreement and provide the Company with an additional time period to rectify, or “cure” the Company Default; or
(ii) Terminate this Agreement, and upon such termination, the City and CDA shall own the plans and specifications prepared by the Company for the Proposed Projects; and/or
(iii) Due to the fact that there would not be an adequate remedy at law, in addition to any other rights and remedies available at law or in equity, be entitled to seek equitable relief including, but not limited to, specific performance, with respect to the Company Default; provided, however, the Company shall not in any case be liable for money damages or consequential damages, or be required to purchase or acquire property, or to expend money to obtain insurable title.
4.3 Notwithstanding the foregoing and any provision in this Agreement to the contrary, once a Project Specific Agreement is executed for a Proposed Project, then this Agreement shall cease to be operative with respect to such Proposed Project (all of the rights and obligations of the parties with respect to such Proposed Project under this Agreement having been superseded by such Project Specific Agreement), and any subsequent termination of this Agreement shall not in any way whatsoever affect or impair the rights and obligations of the parties to such executed Project Specific Agreement.
5.1 Exclusivity. During the term of this Agreement, the Municipal Entities will not: (i) designate any person, firm or entity, other than the Company (or the applicable Project Entity), as a qualified and eligible sponsor or master developer for the redevelopment of any of the Proposed Projects; (ii) enter into any agreement with any other firm, person or other entity with respect to any of the Proposed Projects excepting however, zoning and land use actions and related building permits and customary City actions and providing financial assistance by YIDA for projects proposed by property owners or their designees in the Proposed Project areas (provided that such projects comply with any applicable urban renewal plan then in effect); (iii) authorize or direct, by written resolution or other formal act voted on by the Municipal Entities, any representative to act on their behalf in connection with any such agreement; or (iv) enter into any negotiation or discussions (or solicit or accept any offers) with respect to or related to any of the foregoing. The Company acknowledges that there are private projects being planned or that may arise after the date hereof that the Municipal Entities will need to take normal and customary action on to provide public services or financial assistance. Said actions shall not constitute a default hereunder by the Municipal Entities and in all events the Municipal Entities must comply with all laws, rules and regulations and provide services and assistance consistent with their charters.
6.1 Negotiated Document. The parties acknowledge that the provisions and language of this Agreement have been negotiated, and agree that no provision of this Agreement shall be construed against any party by reason of such party having drafted such provision of this Agreement.
6.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflict of laws principles.
6.3 Execution and Counterparts. This Agreement may be executed by the Mayor prior to approval by the City Council, but in such event shall be subject to the City Council’s approval. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument, and any of the parties or signatories hereto may execute this Agreement by signing any such counterpart.
6.4 Captions. The captions of this Agreement are for the purpose of convenience of reference only, and in no way define, limit or describe the scope or intent of this Agreement or in any way affect this Agreement.
6.5 Gender, Etc. As used in this Agreement, the masculine shall include the feminine and neuter, the singular shall include the plural, and the plural shall include the singular as the context may require.
6.6 No Third Party Beneficiaries. Except as may be expressly provided to the contrary in this Agreement, nothing contained in this Agreement shall or shall not be construed to confer upon any person other than the parties hereto, any rights, remedies, privileges, benefits or causes of action to any extent whatsoever.
6.7 Successors and Assigns. The agreements, terms, covenants and conditions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and, except as otherwise provided herein, their respective successors and permitted assigns.
6.8 Further Assurances. Each party hereto shall do all acts and things and make, execute and deliver such written instruments as shall from time to time be reasonably required to carry out the terms and provisions of this Agreement.
6.9 No Amendment. Neither this Agreement nor any provisions hereof may be changed, modified, amended, supplemented, altered, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against who enforcement of the change, modification, amendment, supplement, alteration, waiver, discharge or termination is sought, and, if required by any mortgage document, the applicable lender has consented thereto.
6.10 Unavoidable Delay. Notwithstanding any provision of this Agreement, the performance by the Municipal Entities and Company of their respective obligations under this Agreement and under the Project Specific Agreements, and all time periods for the performance of all such obligations, shall be subject to Unavoidable Delay, and shall be tolled day for day during a period of Unavoidable Delay. For the purposes of this Agreement, Unavoidable Delay means any delay, obstruction or interference resulting from any act or event which has a material adverse effect on a party’s rights or duties, provided such act or event is beyond the reasonable control of such party after pursuing all diligent efforts to remedy the delaying condition in an expedient and efficient manner and was not separately or concurrently caused by any negligent or willful act or omission of such party and/or could not have been prevented by reasonable actions on such party’s part (and such party shall have notified the other party herein not later than ten (10) days after the occurrence of any Unavoidable Delay), including, but not limited to, delay, obstruction, or interference resulting from:
(i) an act of God (but not including reasonably anticipated weather conditions), landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar occurrence, acts of a public enemy, war, blockage or insurrection, riot or civil disturbance;
(ii) any legal proceeding commenced by any third party seeking judicial review of this Agreement and/or any governmental approvals for any Proposed Project, and any restraint of law (e.g., injunctions, court or administrative orders, or legal moratorium imposed by a court, or administrative or governmental authority);
(iii) the failure of any utility or governmental entity to provide and maintain utilities, services, water and sewer lines and power transmission lines to the Project Site, which are required for the construction of a Proposed Project or for other obligations of the Company;
(iv) any unexpected or unforeseen subsurface condition at the construction site inconsistent with typical background conditions of a similar site, which shall prevent construction of, or require a material redesign or change in the construction of, or materially adversely affect the completion schedule for, a Proposed Project, such determination to be made by a qualified engineer;
(v) strikes, work stoppages or other substantial labor disputes;
(vii) the failure or inability of any subcontractor or supplier to furnish supplies or services if such failure or inability is itself caused by Unavoidable Delay and could not have been reasonably prevented and the affected party cannot reasonably obtain substitutes therefor; and
(viii) Company Default with respect to the Municipal Entities, and Municipal Default with respect to the Company, whether or not the same is caused by negligent or willful acts or omissions.
Notwithstanding any other term or provision contained in this Agreement, only subsections (i), (ii) and (viii) above shall be applicable to the time periods set forth in Section 3.2 of this Agreement.
6.11 Inconsistent Provisions. The terms and provisions of this Agreement shall prevail
over and hereby supersede that certain Memorandum of Agreement (the “MOA”) dated March, 2004, by and between Yonkers Baseball Development, Inc. (“Yonkers Baseball”) and the joint venture of Struever Bros. Eccles & Rouse Development Services, LLC and Fidelco Realty Group (together “SBER-Fidelco”). By execution of this Agreement, the Company hereby represents that it has succeeded to all rights of SBER-Fidelco or their affiliates under the MOA, agrees that any rights the Company or SBER-Fidelco, or their affiliates (collectively, “Company and its Affiliates”) may have had under the MOA are hereby terminated, and agrees to indemnify, defend and hold harmless the City, YIDA and CDA from any claims or causes of actions by Company and its Affiliates claiming any rights thereunder.
6.12 Entire Agreement. This Agreement, together with the Schedule and Exhibits
hereto, contain all of the promises, agreements, conditions, inducements and understandings between and amongst the parties hereto concerning the Proposed Projects and there are no promises, agreements, conditions, inducements or understandings, oral or written, expressed or implied, between them other than as expressly set forth herein and therein.
6.13 Arbitration. If there is any disagreement between the parties with respect to the interpretation of this Agreement, then such disagreement shall be determined by the American Arbitration Association, for matters in Yonkers, New York with the venue for any dispute resolution in Yonkers, New York. The then current rules of the American Arbitration Association shall govern the arbitration provided for herein.
6.14 No Recourse. All covenants, stipulations, promises, agreements and obligations of the Company and of the Municipal Entities contained in this Agreement shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Company and the Municipal Entities, respectively, and not of any officer, partner, member, shareholder, agent, servant or employee of the Company or of the Municipal Entities in any capacity, and no recourse under or upon any obligation, covenant or agreement contained in this Agreement, or otherwise based or in respect thereof, shall be had against any past, present or future officer, partner, member, shareholder, agent, servant or employee of the Company or of the Municipal Entities or any member of the Company, either directly or through the Company or any successor thereto or any person executing this Agreement. It is expressly understood that this Agreement is an obligation of the Company and of the Municipal Entities and that no personal liability whatever shall attach to, or is or shall be incurred by, any such officer, partner, member, shareholder, agent, servant or employee of the Company or of the Municipal Entities or any member of the Company, either directly or through the Company or any successor thereto or any person executing this Agreement. Any and all such personal liability of, and any and all such rights and claims against, every such officer, partner, member, shareholder, agent, servant or employee of the Company or of the Municipal Entities under or by reason of the obligations, covenants, or agreements contained in this Agreement or implied therefrom are, to the extent permitted by law, expressly waived and released as a condition of, and as a consideration for, the execution of this Agreement
6.15 Notice. Any notice, demand, request or other communication which under the terms of this Agreement must or may be given or made or served by any of the parties hereto shall be in writing and shall be given in person, by nationally recognized overnight express delivery service, by United States certified mail, with postage prepaid, or by facsimile transmission with a hard copy sent on the same day by a nationally recognized overnight express delivery service, properly addressed and directed to the party to receive the same at the following address as may hereafter be substituted by notice in writing. Notices shall be effective on the date of delivery and acquisition of a receipt by the sender.
To the Municipal Entities:
Yonkers Community Development Agency
87 Nepperhan Avenue
Yonkers, New York 10701
Attn: Executive Director
With a copy to:
Harris Beach PLLC
99 Garnsey Road
Pittsford, New York 14534
Attn: Shawn M. Griffen, Esq.
City of Yonkers
40 South Broadway
Yonkers, New York 10701
Attn: Mayor
With a copy to:
Corporation Counsel of the City of Yonkers
40 South Broadway
Yonkers, New York 10701
Attn: Frank J. Rubino, Esq.
City Council President
City of Yonkers
40 South Broadway
Yonkers, New York 10701
City Council Real Estate Committee
City of Yonkers
40 South Broadway
Yonkers, New York 10701
Attn: Chairperson
City of Yonkers Industrial Development Agency
40 South Broadway
Yonkers, New York 10701
Attn: Executive Director
With a copy to:
Ferrick Lynch MacCartney, PLLC
96 South Broadway
Nyack, New York 10960
Attn: Dennis E. A. Lynch, Esq.
City of Yonkers Parking Authority
40 South Broadway
Yonkers, New York 10701
Attn: Executive Director
With a copy to:
Corporation Counsel of the City of Yonkers
40 South Broadway
Yonkers, New York 10701
Attn: Frank J. Rubino, Esq.
To the Company:
Struever Fidelco Cappelli, LLC
115 Stevens Avenue
Valhalla, New York 10595
Attn: Louis R. Cappelli
With a copy to:
Mr. Carl William Struever
President and CEO
Struever Bros. Eccles & Rouse, Inc.
1040 Hull Street – Suite # 200
Baltimore, Maryland 21230
Mr. Lawrence J. White
Senior Development Director
Struever Bros. Eccles & Rouse, Inc.
1040 Hull Street – Suite # 200
Baltimore, Maryland 21230
Mr.
John P. Machen
DLA Piper Rudnick Gray Cary US LLP
6225 Smith Avenue
Baltimore, Maryland 21209
Joseph Apicella
Struever Fidelco Cappelli, LLP
115 Stevens Avenue
Valhalla, New York 10595
Marc E. Berson
Fidelco Yonkers LLC
225 Millburn Avenue – Suite # 202
Millburn, New Jersey 07041
Marla S. Smith
Fidelco Yonkers, LLC
225 Millburn Avenue – Suite # 202
Millburn, New Jersey 07041
DelBello Donnellan Weingarten Tartaglia Wise & Wiederkehr, LLP
One North Lexington Avenue
White Plains, New York 10601
Attn: Alfred B. DelBello, Esq.
Attn: Peter J. Wise, Esq.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below.
YONKERS COMMUNITY DEVELOPMENT
AGENCY
By: ___________________________________
Name:
Title:
Dated:
CITY OF YONKERS, NEW YOK
By: ___________________________________
Name:
Title:
Dated:
CITY OF YONKERS INDUSTRIAL DEVEL