Common use of FINAL VERSION Clause in Contracts

FINAL VERSION. executed construction contract that covers the performance of the structural demolition work, (iv) an executed construction contract that covers the performance of the site work, foundation work and soils work for the Project, and (v) an executed construction contract that covers the performance of construction, mechanical and electrical work to enable that portion of the existing Burlington Town Center mall building that will not be demolished to continue to function once structural demolition of the Project commences. Owner agrees that prior to commencing foundation work for the construction of the Project, it shall provide the City with a copy of an executed construction contract that contains a guaranteed maximum price to construct the Public Improvements, consistent with the agreed upon Budget required by Section 3(c)(ii)(B) of this Agreement. The guaranteed maximum price contract shall include an allowance for (i) the Public Improvements and (ii) any Additional Public Improvements the City has proposed that the Owner will construct, all in an amount up to the Not to Exceed TIF Funding Amount, less any of the approved TIF Funding Amount the City has otherwise allocated to acquisition, related, or other TIF-eligible costs. Prior to commencement of foundation work for construction of the Project, Owner shall provide the City with evidence that the obligation to construct the Private Improvements is subject to a guaranteed maximum price contract that is secured by payment and performance bonds for the benefit of the construction lender, a completion guaranty for the benefit of the construction lender, or another customary and commercially reasonable form of financial surety reasonably satisfactory to the City. Owner further agrees that 30 days prior to the commencement of construction of the Public Improvements and Additional Public Improvements, if applicable, Owner shall provide the City with a commercially reasonable performance guaranty (if the Additional Public Improvements are built in phases each separate phase will require its own performance guaranty). The Parties agree Owner’s satisfaction of Condition 11 of the DRB Approval will fulfill this Agreement’s performance guaranty requirements for the Public Improvements, and that with respect to any Additional Public Improvements that Owner undertakes to perform in accordance with this Agreement Owner may satisfy its obligation to provide the City with a performance guaranty by providing the City with a performance guaranty that is analogous to that provided to satisfy Condition 11 of the DRB Approval. Owner agrees that the City will not have an adequate remedy at law for Owner’s noncompliance with the provisions of this Section 3(b) and, therefore, the City shall have the right to equitable remedies, such as, without limitation, injunctive relief and specific performance, to enforce the foregoing covenant and agreement.

FINAL VERSION. executed The Parties agree and acknowledge that the Owner may pledge any rights it has to reimbursement for the agreed-upon cost of constructing the Public Improvements and any Additional Public Improvements as additional security to its lender(s) or other financing parties. At Owner’s request, the City shall enter into a separate agreement with Owner and/or with Owner’s construction contract that covers lender solely with regard to the performance City’s reimbursement of the structural demolition workagreed-upon cost of constructing the Public Improvements and any Additional Public Improvements so long as such separate agreement contains terms and conditions that are consistent with those contained in this Agreement with respect to such matters and that do not impose any additional material obligations on the City or the Owner. Without limiting the foregoing, the City agrees to work cooperatively and in good faith with the Owner’s construction lender to provide the construction lender with assurance of funding for the Public Improvements in accordance with the terms and provisions of this Agreement, including without limitation by entering into a customary and commercially reasonable intercreditor agreement or collateral assignment agreement required by said construction lender (ivmeaning that Owner may assign its rights under this Agreement to receive payment and reimbursement from the City as security for Owner’s construction loan, with the understanding that although such assignment shall be a present assignment of its rights under this Agreement, the construction lender will only enforce the assignment if Owner defaults under its construction loan). There shall be no conditions to the Owner receiving the reimbursement from the City other than the conditions set forth in Section 4(c)(i) an executed construction contract that covers the performance of the site work, foundation work and soils work for - (vii) with respect to the Project, and (vthe condition set forth in Section 4(c)(viii) an executed construction contract that covers the performance of construction, mechanical and electrical work to enable that portion of the existing Burlington Town Center mall building that will not be demolished to continue to function once structural demolition of the Project commences. Owner agrees that prior to commencing foundation work for the construction of the Project, it shall provide the City with a copy of an executed construction contract that contains a guaranteed maximum price to construct the Public Improvements, consistent with the agreed upon Budget required by Section 3(c)(ii)(B) of this Agreement. The guaranteed maximum price contract shall include an allowance for (i) the Public Improvements and (ii) any Additional Public Improvements the City has proposed that the Owner will construct, all in an amount up to the Not to Exceed TIF Funding Amount, less any of the approved TIF Funding Amount the City has otherwise allocated to acquisition, related, or other TIF-eligible costs. Prior to commencement of foundation work for construction of the Project, Owner shall provide the City with evidence that the obligation to construct the Private Improvements is subject to a guaranteed maximum price contract that is secured by payment and performance bonds for the benefit of the construction lender, a completion guaranty for the benefit of the construction lender, or another customary and commercially reasonable form of financial surety reasonably satisfactory to the City. Owner further agrees that 30 days prior to the commencement of construction of the Public Improvements and Additional Public Improvements, if applicable, Owner shall provide the City with a commercially reasonable performance guaranty (if the Additional Public Improvements are built in phases each separate phase will require its own performance guaranty). The Parties agree Owner’s satisfaction of Condition 11 of the DRB Approval will fulfill this Agreement’s performance guaranty requirements for the Public Improvements, and that with respect to any Additional Public Improvements that are not complete at the time that the Project is complete. Owner undertakes shall not be obligated to perform start the construction of the Project until the City provides the required assurances to the construction lender as set forth in accordance with this Agreement section and until the City provides documentation reasonably satisfactory to the Owner may satisfy its obligation that the City is obligated to reimburse the Owner for the agreed-upon cost of constructing the Public Improvements in the manner set forth in this Agreement. The City shall be obligated to provide the City with a performance guaranty by providing documentation and the City with a performance guaranty that is analogous to that provided to satisfy Condition 11 assurances referenced above even if the Owner starts construction of the DRB Approval. Owner agrees that the City will not have an adequate remedy at law for Owner’s noncompliance with the provisions Project prior to finalization of this Section 3(b) and, therefore, the City shall have the right to equitable remedies, such as, without limitation, injunctive relief assurances and specific performance, to enforce the foregoing covenant and agreementdocumentation.