THE PEOPLE’S COMMUNITY BENEFITS AGREEMENT VILLAGE OF ... · Hempstead CBA draft 8-2-12 9 any...

Hempstead CBA draft 8-2-12 1

THE PEOPLE’S COMMUNITY BENEFITS AGREEMENT

VILLAGE OF HEMPSTEAD DEVELOPMENT PROJECT

DRAFT

This Community Benefits Agreement (this “Agreement” or this “CBA”) dated as of

__________, 2012 is entered into by and between RENAISSANCE DOWNTOWNS

URBAN AMERICA LLC, a New York limited liability company, having an office at c/o

Renaissance Downtowns LLC, 9 Gerhard Road, Plainview, NY 11803 (the “Developer,” as

more fully defined in Article 1 hereof), the VILLAGE OF HEMPSTEAD, a New York State

municipal corporation, having an office at 99 Nichols Court, Hempstead, NY 11550 (the

“Village,” as more fully defined in Article 1 hereof), and the following entities also listed in

Exhibit A, attached hereto (each, a “Coalition Member,” two or more of whom, “Coalition

Members,” and, collectively, the “Coalition”):

- ABBA Leadership Center, Inc., a New York State not-for-profit corporation;

- Helping End Violence Now Inc., a New York State not-for-profit corporation;

- Hempstead Classroom Teachers Association, a local of New York State United Teachers,

American Federation of Teachers and National Education Association, AFL-CIO;

- Hempstead Coordinating Council of Civic Associations, Inc., a New York State not-for-

profit corporation;

- La Fuente, a Tri-State Worker & Community Fund, Inc., a New York State not-for-profit

corporation;


- New York Communities for Change, Inc., a New York State not-for-profit corporation;

- Youth Empowerment Institute, Inc., a New York State not-for-profit corporation;

- ___________________________________________;

- ___________________________________________;

- ___________________________________________; and

- ___________________________________________.

W I T N E S S E T H:

WHEREAS, the Developer intends to lead an effort to construct a housing and mixed-use

development in the Village;

WHEREAS, the Developer has entered into a Master Development Agreement (“MDA”) with

the Village and the Incorporated Village of Hempstead Community Development Agency, a

New York public benefit corporation, which requires the creation of a “comprehensive

community benefits program”;

WHEREAS, the Village has adopted a new Section 139-216 of the Code of the Village of

Hempstead, which requires that development in the Project Area that seeks to take advantage

of an optional zoning overlay (the “Downtown Overlay Zone”) comply with certain

“community benefits policies”;

WHEREAS, the Coalition, the Developer, and the Village seek to maximize the benefit of the

Development to the residents and businesses of the Village, not merely to increase population

density;

WHEREAS, pursuant to this Agreement, the Coalition, Village, and Developer hereby


establish policies and programs that meet the requirements for both the community benefits

program and the community benefits policies that are described in the MDA and in Section

139-216 of the Code of the Village of Hempstead;

WHEREAS, the Village has adopted the terms of this Agreement as the Community Benefits

Policies described in Section 139-216 of the Code of the Village of Hempstead;

NOW, THEREFORE, in furtherance of the foregoing recitals and for other good and valuable

consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree

as follows:

ARTICLE 1

DEFINITIONS

As used in this Agreement, the following capitalized terms shall have the following meanings,

unless otherwise noted. All below definitions include both the singular and plural forms of

these terms, unless otherwise specified.

“Affordable” means housing that costs no more than thirty (30%) of a household’s

gross annual income.

“Affordable Homeownership” means housing that is available for sale to certain

households in the AMI tiers listed in the Affordable Housing Table.

“Affordable Housing Table” means the table and the information enclosed therein in

Section 7.2 of this Agreement.


“Affordable Housing Units” means the total combined Affordable Homeownership

units and Affordable Rental units.

“Affordable Rentals” means housing that is available for rent to certain households in

the AMI tiers listed in the Affordable Housing Table.

“Agreement” means this contract, including all Exhibits and the Final CBA

Implementation Plan, as they may be modified. This Agreement may also be known as a

“Community Benefits Agreement” or “CBA.”

“Agreement Text” means this contract, including all Exhibits, but excluding the Final

CBA Implementation Plan.

“AMI” means the median income for the Village of Hempstead, as calculated by the

Village using data from HUD, adjusted for household size, and as adjusted from time to time

based on the release of new HUD data. If data from HUD specific to the Village is

unavailable, AMI may be calculated by using other publicly-available and credible data

specific to the Village and adjusted for household size. AMI shall in no case mean data for the

whole of Nassau and/or Suffolk Counties or the broader region beyond the Village.

“Approved Foundation” means the Long Island Community Foundation, the Hagedorn

Foundation, or any other 501(c)(3) tax-exempt foundation that is mutually agreed to in writing

by the Coalition and the Developer.

“Assumption Agreement” shall have the meaning set forth in Section 14.2.

“Coalition” means the entities described in Exhibit A.

“Coalition Member” means any one of the entities described in Exhibit A.

“Coalition Members” means any two or more, but not necessarily all or a majority of,


the entities described in Exhibit A.

“Community” means the residents of the Village of Hempstead and the owners of

businesses located in the Project Area.

“Community Benefits Policies For Zoning” means the community benefits policies, as

defined in Section 139-216 of the Code of the Village of Hempstead.

“Complete” or “Completed” means a unit of housing or other construction project for

which a final Certificate of Occupancy has been issued for such unit or project.

“Covered Job” means any job or position, whether held by an employee or an

independent contractor, for which at least half of the work hours are performed within the

Project Area, as determined by the First Source Referral System. Covered Jobs shall not

include positions for which hiring procedures are governed by a collective bargaining

agreement that conflicts with the First Source Hiring Program.

“Debt Instruments” shall have the meaning set forth in Section 16.1.2.

“Default” by Developer is defined in Section 12.3; “Default” by Coalition Member is

defined in Section 12.5.

“Developer” means (a) RENAISSANCE DOWNTOWNS URBAN AMERICA LLC,

a New York limited liability company, having an office at c/o Renaissance Downtowns

LLC, 9 Gerhard Road, Plainview, NY 11803; (b) Renaissance Downtowns at Hempstead LLC,

having an office at c/o Nu-Horizons Management Corp., 9 Gerhard Road, Plainview, NY

11803; (c) UrbanAmerica LLC, c/o UrbanAmerica Advisors, 30 Broad Street, 31st Floor, New

York, NY 10004; (d) any Person that owns, controls, is controlled by, or is under common

control with any of the entities in (a), (b) or (c) of this paragraph; and (e) any Person that owns,


constructs, or manages any building in the Project, of which any of the entities in (a), (b), (c),

or (d) of this paragraph is a general partner or managing member.

“Developer ICM Payment” is defined in Section 3.2 hereof.

“Developer Implementation Fee” is defined in Section 3.1 hereof.

“Downtown Overlay Zone” is used in the meaning given to the term by Section 139-

201 of the Code of the Village.

“Draft CBA Implementation Plan” is defined in Section 3.4 hereof.

“Education, Career, Safety, and Literacy Program Contribution” is defined in Section

9.7 hereof.

“Education, Career, Safety, and Literacy Program Development Fund” is defined in

Section 9.7 hereof.

“Employer” means a business or nonprofit corporation that conducts any portion of its

operations in the Project Area, with at least four (4) regular full time equivalent employees.

Employer includes but is not limited to Tenants, general contractors, subcontractors, and

landowners conducting any portion of operations in the Project Area. Employer shall include

the Developer.

“Employment Goal” is defined in Section 4.6.3.

“Escrow/Funding Agreement” is defined in Article 15.

“Final CBA Implementation Plan” is defined in Section 3.4 hereof.

“First Source Hiring Program” is defined in Section 4.6 hereof.

“First Source Referral System” means any system established by HCBA-IG or its

designee to operate and administer the First Source Hiring Program.


“Hempstead CBA Implementation Group, Inc.” or “HCBA-IG” is defined in Section

3.1 hereof.

“HUD” means the United States Department of Housing and Urban Development.

“Impacted By Construction” means when a residential lessee or commercial lessee is

forced to vacate its rental space, including when the development of the Project causes a

commercial lessee to suffer a commercial loss that can be reasonably attributed to the

Project. A commercial lessee will be Impacted By Construction when part or all of its

commercial space is inaccessible to pedestrian traffic for two or more consecutive days,

when a street on which its commercial space is closed to vehicle traffic for two or more

consecutive days, and when a commercial space has its signage or frontage limited in its

visibility by construction for a period of two or more consecutive days, among other

times. A residential lessee will be Impacted By Construction when all or part of its

residential space is inaccessible for eight (8) or more consecutive hours, or when noise,

dust, fumes or other effects of construction cause health problems or an inability to sleep.

“Independent Compliance Monitor” or “ICM” is defined in Section 3.2 hereof.

“Jobs Program Contribution” is defined in Section 4.2 hereof.

“Jobs Program Development Fund” is defined in Section 4.2 hereof.

“Low-Income” means an individual whose household income is no greater than eighty

percent (80%) of AMI.

“Mailing” is defined in Section 11.1 hereof.

“Master Development Agreement” or “MDA” means an agreement between the

Village, the Village of Hempstead Community Development Agency, and the Developer,


entitled Master Development Agreement, and dated February 9, 2012.

“Minority” means: A United States citizen or permanent resident alien who can

demonstrate membership in one of the following groups: Black persons having origins in any

of the Black African or Caribbean racial groups; Hispanic persons of Mexican, Puerto Rican,

Dominican, Cuban, Central or South American descent of either Indian or Hispanic origin,

regardless of race; Native American or Alaskan native persons having origins in any of the

original peoples of North America; Asian and Pacific Islander persons having origins in any

of the Far East countries, South East Asia, the Indian subcontinent or the Pacific Islands; and

such other individuals determined by HCBA-IG to be rightfully considered Minority persons.

“Minority/Women-owned Business Enterprise” or “M/WBE” means a business that is

51% or more owned and controlled by people who are women and/or minorities. For purposes

of this definition, a person who is both a Minority and a Woman shall be counted either a

Minority or a Woman, but not counted twice.

“Moderate-Income” means an individual whose household income is no greater than

one hundred percent (130%) of AMI.

“Neighboring Communities” means Elmont, NY; Freeport, NY; Lakeview, NY; New

Cassel, NY; Roosevelt, NY; and Uniondale, NY.

“Nonprofit Workforce Development Program” is defined in Section 4.4 hereof.

“Party” means each of the signatories to this Agreement and “Parties” means all of

such signatories.

“Permitted Transferee” means any Person or Persons that is a successor in interest or

assign of Developer to all or any portion of Developer’s interest in this Agreement or all or


any portion of the Project, including without limitation any entity in which Developer may

become a member, any Person or entity that acquires a fee simple interest, license, lease, or

ground lease for the purpose of developing or building all or any portion of the Project or

retail developers participating in the Project.

“Person” means any one or more natural persons, sole proprietorship, partnership,

association, joint venture, coalition, limited liability company, corporation, or any business

form.

“Phase” shall mean any part of the Project if it is segmented into two or more separate

development projects.

“Pre-Apprentice Training Program” is defined in Section 4.4.2 hereof.

“Project” means the development of the Project Area, including any improvements or

work necessary to make any improvements in the Project Area.

“Project Area” means all property within the area defined as the “Downtown Overlay

Zones” in the Code of the Village of Hempstead Section 139-201.

“Project Labor Agreement” is defined in Section 4.4.2.1 hereof.

“Reasonably Comparable Commercial Space” means a commercial unit with

approximately the same square footage and street frontage as a commercial space that a

business must vacate.

“Reasonably Comparable Living Space” means an apartment or house with

approximately the same square footage and number of bedrooms as an apartment or house a

Resident must vacate.

“Resident” means a Person who rents or owns property in a given area as of the date


of this Agreement.

“Targeted Job Applicant” shall mean an individual referred to an Employer by the

First Source Referral System. The First Source Referral System shall refer individuals for

employment, as said First Source Referral System believes them to be qualified, in the same

order as the priority for enrollment in the Workforce Development Program.

“Tenant” means any Person or entity that conducts any portion of its operations within

the Project Area, including without limitation, any Person leasing space within the Project,

except that Tenant shall not include natural persons whose primary legal residence is within

the Project Area at the time of the execution of this Agreement.

“Trades Council” means the Nassau-Suffolk Building Trades Council.

“Transfer” is defined in Section 14.1.

“Village” means the Village of Hempstead, a New York municipal corporation.

“Village-Based M/WBE Assistance Program” is defined in Section 5.5 hereof.

“Village Project Completion” means the Developer has satisfied all of its obligations

under the MDA and it ceases all efforts to develop, seek to develop, or otherwise take

ownership of properties in the Project Area.

“Village Project Termination” means the Developer or the Village has not satisfied all

of its obligations under the MDA but the MDA is terminated and the Developer ceases all

efforts to develop, seek to develop, or otherwise take ownership of properties in the Project

Area.

“Woman” means: a female citizen or permanent resident alien of the United States.


ARTICLE 2

TERM

This Agreement shall commence on the date of the execution of this Agreement and shall

remain in effect for thirty (30) years, or for ten (10) years after Village Project

Completion or Village Project Termination, if either occurs prior thereto. Specific terms

herein that exceed thirty (30) years, including but not limited to the durational

requirements for affordable housing compliance described in Article 7, shall remain in

effect for a longer or different term, as described more particularly in those provisions.

ARTICLE 3

GOVERNANCE AND OVERSIGHT

3.1 CREATION OF A NEW YORK STATE NOT-FOR-PROFIT

CORPORATION TO OVERSEE IMPLEMENTATION. To assist with implementation of

this Agreement and facilitate an ongoing dialogue between the Coalition and the Developer,

the Coalition agrees to hereby form a New York State not-for-profit corporation to be known

as Hempstead CBA Implementation Group, Inc. (“HCBA-IG”), to be governed by one

representative from each of the Coalition Members, plus a representative selected by the New

York Communities for Change Small Business Collective, an unincorporated association

comprised of small business owners whose principal place of business is located in the Village,

plus a representative chosen by the Village. A draft copy of the HCBA-IG Certificate of


Incorporation is attached hereto as Exhibit B and shall be caused to be filed the Coalition

within ten (10) days of the execution of this Agreement. HCBA-IG will act as the

implementation body through which formal meetings between representatives of the

Developer and representatives of the Coalition Members shall meet. Developer shall provide

_____________________ dollars ($________) per year to HCBA-IG for its operation,

including its staff and accounting, legal, and other consultant fees (“Developer

Implementation Fee”). The Developer Implementation Fee shall be paid annually by the

Developer for the longer of eight (8) years from the date of this Agreement or Village Project

Completion, unless Village Project Termination happens prior to either of those events, in

which case the Liquidated Damages provisions of Section 12.4 apply. The initial Developer

Implementation Fee shall be due ten (10) days from the execution of this Agreement.

3.2 INDEPENDENT COMPLIANCE MONITOR. Within thirty (30) days of

the execution of this Agreement, HCBA-IG shall publish a Request for Proposals to qualified,

independent Persons with experience in overseeing compliance with similar arrangements

or who have other experience deemed by HCBA-IG to be sufficiently relevant. The terms

of employment and evaluation shall be determined by HCBA-IG. Such Independent

Compliance Monitor (“ICM”) shall be selected by HCBA-IG, at an annual payment of up to

_____________________ dollars ($________) to be paid by Developer, and shall be

responsible for oversight of the obligations of the Developer, Village, and Coalition under

this Agreement, investigation of any complaints brought against the Developer, Village, or

any Coalition Member regarding implementation of this Agreement, and review of the reports


required to be produced by the Developer pursuant to Article 10 hereof. After review of the

Developer Reports, the ICM shall provide a report to HCBA-IG on the status of the

implementation of all CBA initiatives. The Developer, the Coalition, and HCBA-IG shall

comply with all requests for information and records that the ICM reasonably determines are

necessary to fulfill its duties. HCBA-IG shall enter into a contract for the services of its

chosen ICM within thirty (30) days of the execution of this Agreement. Within thirty (30)

days of the execution of this Agreement, Developer must make an initial payment of

_____________________ dollars ($________) to HCBA-IG, to be used by HCBA-IG solely

for compensation of the ICM (the initial “Developer ICM Payment”). The Developer ICM

Payment shall be paid annually by the Developer for the longer of eight (8) years from the

date of this Agreement or Village Project Completion, unless Village Project Termination

happens prior to either of those events, in which case the Liquidated Damages provisions of

Section 12.4 apply. HCBA-IG shall have the right to replace the ICM at any time upon the

vote of two-thirds of its Board of Directors.

3.3 PUBLIC TRANSPARENCY. HCBA-IG shall make all reasonable good

faith efforts to be open and transparent with the Community and shall provide periodic status

reports to the Community and the Village.

3.4 CBA IMPLEMENTATION PLAN. The Developer, in consultation with

HCBA-IG, will prepare a draft of a manual for the implementation of all programs and goals

described in this Agreement (the “Draft CBA Implementation Plan”) as soon as practicable


but in no event later than thirty (30) days. The Draft CBA Implementation Plan shall be

delivered to HCBA-IG for review and comment. HCBA-IG shall have twenty (20) days to

deliver written comments (“HCBA-IG Implementation Plan Comments”) to the Developer, if

any. Immediately after said twenty (20) day period, HCBA-IG and the Developer shall then

have a five (5) day period in which:

3.4.1 HCBA-IG and Developer may mutually agree to amend the Draft

CBA Implementation Plan to their mutual satisfaction. If HCBA-IG and

Developer reach agreement on all terms in the Draft CBA Implementation

Plan, said document shall become the Final CBA Implementation Plan.

3.4.2 HCBA-IG and Developer may be unable to reach a full agreement

on the Draft CBA Implementation Plan, in which case the Draft CBA

Implementation Plan, along with the HCBA-IG Implementation Plan

Comments, shall together be given to the Independent Compliance

Monitor, which shall modify the sections of the Draft CBA Implementation

Plan on which there is disagreement to most closely adhere to the terms of

this Agreement.

In accordance with Article 13 and Article 16 of this Agreement, the Coalition and Developer

shall jointly advocate for the Final CBA Implementation Plan to be adopted by the Village as

the Community Benefits Policies For Zoning. The Final CBA Implementation Plan shall

become a part of this Agreement and the ICM shall use the Final CBA Implementation

Plan, along with the rest of this Agreement, as a tool for judging the progress of the

Developer and the Coalition Members in achieving the objectives set forth in this


Agreement and the Final CBA Implementation Plan. The Final CBA Implementation

Plan shall be in all material respects consistent with the terms of the Agreement Text,

and in the event of any inconsistency between them, the Final CBA Implementation

Plan shall be interpreted so that it meaning is most consistent with the Agreement Text.

ARTICLE 4

WORKFORCE DEVELOPMENT AND FIRST SOURCE HIRING PROGRAM

4.1 PURPOSE. The purpose of this Article is to establish a Nonprofit

Workforce Development Program and First Source Hiring Program (together, the “Jobs

Program”) that addresses the problem of long-term, disproportionately high unemployment

within the Community by seeking to facilitate the employment of Targeted Job Applicants by

Employers in the Project Area. Another intended benefit of the Jobs Program is to provide

Employers in the Project Area with a pool of qualified job applicants whose job training has

been specifically tailored to the needs of Employers in the Project Area through a non-

exclusive referral system. The Jobs Program created by this Article will establish training,

hiring and referral initiatives for pre-construction, construction, and permanent jobs for Low-

Income and Moderate-Income Residents of the Community and Neighboring Communities,

including Minorities and Women. The Jobs Program shall feature a continuum of workforce

development services for Low-Income and Moderate-Income Residents of the Community

and Neighboring Communities, including job readiness, skills development, and job-training

and career- ladder programs. The Final CBA Implementation Plan shall include expansion of


the Jobs Program created by this Article to facilitate the ongoing employment of Targeted Job

Applicants by Employers in the Project Area.

4.2 JOBS PROGRAM DEVELOPMENT FUND. Developer shall contribute or

cause to be contributed _____________________ dollars ($________) (the “Jobs Program

Contribution”) to a fund to be entitled the “Jobs Program Development Fund” to be held by an

Approved Foundation. Developer shall work cooperatively with HCBA-IG to increase

funding to the Jobs Program Development Fund beyond the Jobs Program Contribution by

seeking additional funds from the Town of Hempstead, Nassau County, New York State, the

federal government, and private donors. Developer shall deposit the Jobs Program

Contribution in the Jobs Program Development Fund in the following installments:

4.2.1 _____________________ dollars ($________) within ten (10) days

of the execution of this Agreement;

4.2.2 _____________________ dollars ($________) by September 1,

2012 (estimated date of initial construction work);


2013; and


2014.

In the event that Village Project Termination happens prior to the Developer fulfilling its

obligation to fund the Jobs Program Contribution, the Liquidated Damages provisions of

Section 12.4 apply.


4.3 CREATION OF THE JOBS PROGRAM. Within forty-five (45) days of

the execution of this Agreement, HCBA-IG and the Developer shall establish or cause to be

established a Nonprofit Workforce Development Program and First Source Hiring Program,

as further defined herein, which shall be managed by, or report to, HCBA-IG.

4.4 NONPROFIT WORKFORCE DEVELOPMENT PROGRAM. HCBA-IG

shall use funds from the Jobs Program Development Fund to establish or cause to be

established a Nonprofit Workforce Development Program, which shall provide a range of

services targeting Low-Income and Moderate-Income Residents of the Community and

Neighboring Communities, and that meets all of the requirements of this Article 4.

4.4.1 Priority. Priority for enrollment in the Workforce Development

Program shall be given:

.1 first, to Low-Income Individuals residing in the Community;

.2 second, to Moderate-Income Individuals residing in the Community;

.3 third, to Low-Income Individuals residing in the Neighboring

Communities;

.4 fourth, to Moderate-Income Individuals residing in the Neighboring

Communities;

.5 fifth, to Women and Minorities residing in the Community;

.6 sixth, to all others residing in the Community;

.7 seventh, to Women and Minorities residing in the Neighboring


Communities;

.8 eighth, to all others residing in the Neighboring Community; and

.9 then to the general public.

4.4.2 Pre-Apprentice Training Program. Commencing upon execution of

this Agreement, Developer and HCBA-IG shall initiate and coordinate a

job training program to train Community residents for construction jobs

within the Project, and, as necessary, to assist those residents with

obtaining GED certificates (the “Pre-Apprentice Training Program”).

Developer and HCBA-IG shall make every effort to enroll participants

according to the priority order specified in Section 4.4.1. The Developer

shall assist HCBA-IG in finding suitable space within the Community to

operate this program.

4.4.2.1 Project Labor Agreement. Developer and Village

intend to negotiate with the Trades Council to enter into a

Project Labor Agreement (“PLA”) for the Project to provide for

uniformity of wages and benefits and to promote employment

of Community residents. Developer and Village agree to work

with HCBA-IG to use substantial, demonstrable good faith

efforts to cause the Trades Council to accept two thousand

five-hundred (2,500) or more workers from the Pre-

Apprentice Training Program into the Trade Council’s

apprentice program, so as permit Employers within the Project


Area to comply with the requirements of this Article 4.

4.4.3 Job Training Program for Non-Union Construction Work and All

Other Work. Within forty-five (45) days of the execution of this

Agreement, Developer and HCBA-IG shall initiate and coordinate a job

training program to train Community residents for any non-union

construction-related jobs within the Project Area and all other work within

the Project Area, as more fully described in Sections 4.5, 4.6, and 4.7.

Developer and HCBA-IG shall make every effort to enroll Community

residents according to the priority specified in Section 4.4.1. The Developer

shall assist HCBA-IG in finding suitable space within the Community to

operate this program.

4.5 PROFESSIONAL SERVICES EMPLOYMENT. The Developer will

require that all professional services firms employed by the Developer, or used as independent

contractors or consultants by the Developer, have adopted appropriate diversity policies and

will work with such firms to foster the hiring and promotion of qualified Minority and

Women professional employees and, to the extent feasible, to have such employees work on

matters related to the Project. Developer will require that all professional services firms

employed by the Developer that seek to hire staff in any capacity for work on the Project give

preference to, first, qualified residents of the Community, and, second, to qualified residents

of the Neighboring Communities. In awarding this work, Developers shall give preference

to those professional service firms that have demonstrated a commitment to the goals of


hiring and promoting qualified residents of the Community and the Neighboring

Communities, and qualified Minority and Women professionals.

4.6 REQUIREMENTS OF THE HIRING PROCESS. The First Source Hiring

Program shall apply to hiring by Employers for all Covered Jobs. The First Source Hiring

Program shall require the following:

4.6.1 Notification of job opportunities. No later than ninety (90) days prior

to hiring for any Covered Job, an Employer must notify the First Source

Referral System of available positions and provide a description of work

responsibilities and qualifications, including expectations, salary, work

schedule, duration of employment, required standard of appearance, and

any special requirements (e.g., language skills, drivers license, etc.). Work

qualifications shall be limited to skills directly related to performance of

work duties. An Employer who first enters into a contract or lease

agreement less than ninety (90) days prior to initial hiring for Covered Jobs

shall provide such information within ten (10) days of entering into the

contract or lease agreement. Each Employer shall, at the time of provision

of information under this Section 4.6.1, designate a liaison for issues

related to this First Source Referral System.

4.6.2 Hiring Process. When hiring employees or contracting with

independent contractors for any Covered Job prior to commencement of an

Employer’s operations in the Project Area, an Employer will hire only


qualified Targeted Job Applicants for a three- (3-)week period following

the notification of job opportunities described in Section 4.6.1. When hiring

employees or contracting with independent contractors after the

commencement of operations in the Project Area, an Employer will, for any

Covered Job, hire or contract with only Targeted Job Applicants for a five-

day period following the notification of job opportunities described in

Section 4.6.1. Employers are entitled to use any normal hiring practices,

including interviews and evaluations, to consider all individuals referred by

the First Source Referral System. After the periods described in this

Section, Employers shall make good faith efforts to hire Targeted Job

Applicants, but may hire any applicant recruited or referred through any

source. Employers shall promptly inform the First Source Referral System

once a Covered Job is filled, and whether or not the Employer hired a

Targeted Job Applicant for that position. Employers shall not be required to

pay any fee, cost or expense of the First Source Referral System or any

potential employees referred to the Employer by the First Source Referral

System in connection with such referral.

4.6.3 Employment Goal. When hiring employees or contracting with

independent contractors for any Covered Job in the Project Area, an

Employer must reserve (.1) sixty percent (60%) of jobs for Low-Income

Individuals, or Moderate-Income Individuals, or unemployed members of

any Construction Trades unions residing in the Community, and (.2) an


additional twenty-five percent (25%) of jobs for Low-Income Individuals

or Moderate-Income Individuals residing in the Neighboring Communities

(together, the “Employment Goal”). Any Employer who has met or

exceeded the Employment Goal for the Covered Jobs available during a

particular three-month period shall be deemed to be in compliance with this

First Source Hiring Program for all hiring during that quarter. Any

Employer who has failed to meet the Employment Goal for the Covered

Jobs during a particular three-month period shall have a thirty (30) day

period in which to cure this non-compliance. It is a responsibility of

Developer to ensure that Employers follow the requirements of this Section

4.6.3 in good faith. Any Employer who fails to be in compliance with this

Section 4.6.3 for a particular three-month period and who fails to cure such

non-compliance within thirty (30) days shall be warned in writing by

Developer and Coalition. Repeated failures by Employers to be in

compliance with this Section 4.6.3 shall be a Default of this Agreement by

Developer.

4.7 OTHER REQUIREMENTS OF THE JOBS PROGRAM. As part of its

implementation, the Jobs Program shall also provide for: (.1) development and maintenance

of a technological infrastructure that promotes efficient program operations; (.2) performance

evaluations to refine strategies and foster continuous improvement of the Jobs Program; (.3)

dissemination of information about outcomes of the Jobs Program to the Community and the


Village; (.4) outreach and marketing of the Jobs Program to the Community and Neighboring

Communities; and (.5) implementing a reporting and recordkeeping system to monitor

Employer compliance that includes New York State Department of Labor employment data

for the Village of Hempstead.

4.8 LEASE AGREEMENTS AND CONTRACTS. Developer shall require that

Tenants and Contractors not execute any contract, lease agreement, or similar agreement

related to the rental, lease, sale, or occupancy of the entirety of or any portion of the Project

Area, unless the entirety of this Jobs Program is included as a material term of the Contract or

lease agreement in question. The provisions of this Jobs Program are material terms of any

deed, lease, or contract in which it is included. Copies of all contracts, leases, and similar

agreements related to the rental, lease, sale, or occupancy of the entirety or any portion of the

Project Area, or of the sections of any such agreements that include the terms of the Jobs

Program, shall be provided to HCBA-IG within ten (10) days after the execution of any such

agreements.

ARTICLE 5

CONTRACTING

5.1 PURPOSE. The purpose of this Article is to foster the successful growth

and establishment of Minority- and Women-Owned Business Enterprises (“M/WBEs”),

especially those based in the Village, and to create opportunities for the M/WBEs to benefit


from the economic activity generated by the Project.

5.2 PRE-CONSTRUCTION SERVICES. Upon execution of this Agreement,

Developer will seek to award not less than ten percent (10%) of the total dollar value of

pre-construction service contracts for the Project to M/WBEs. These services shall include

architectural, engineering, legal, financial and other consulting services. For all of these

M/WBE contracts, first priority shall be given to M/WBEs whose principal office is located in

the Village.

5.3 CONSTRUCTION SERVICES. Developer will seek to award not less

than twenty percent (20%) of the total construction contract dollars to M/WBEs. For all of

these M/WBE contracts, first priority shall be given to M/WBEs whose principal office is

located in the Village of Hempstead.

5.4 POST-CONSTRUCTION SERVICES. Developer will seek to award not

less than twenty (20%) percent of the total contract dollars for post-construction

purchasing and service contracts to qualified M/WBEs. For all of these M/WBE contracts,

first priority shall be given to M/WBEs whose principal office is located in the Village of

Hempstead.

5.5 VILLAGE-BASED M/WBE ASSISTANCE PROGRAM. The Developer

will identify a group of M/WBEs whose principal office is located in the Village of


Hempstead who have been awarded, or who are likely or expected to be awarded, contracts

in the Project to be part of a program (“Village-Based M/WBE Assistance Program”) to

help those firms expand and become eligible for increasingly more substantial contract

awards over the life of the Project. The selection of the firms shall be determined by the

Developer, at its discretion, but in consultation with HCBA-IG. The Village-Based M/WBE

Assistance Program shall consist of the following actions by the Developer, in

collaboration with HCBA-IG:

5.5.1 Targeted-outreach within the Community to M/WBEs;

5.5.2 Unbundling of construction projects into smaller bid sizes that allow

for smaller M/WBEs to compete with larger potential bidders for work;

5.5.3 Assistance with access to bonding or reduced bonding requirements

to allow for smaller M/WBEs to obtain duly required bonding when

necessary;

5.5.4 Assistance with access to insurance, procurement, and on other

matters where smaller M/WBEs may require assistance to compete fairly

with larger potential bidders; and

5.5.5 For the selected Village-Based M/WBEs, as necessary, assistance in

the preparation of loan applications and training on the basics of bank

underwriting criteria, financial management, and business development.

ARTICLE 6

LIVING WAGE AND PREVAILING WAGE JOBS


6.1 PREVAILING WAGES. Developer shall comply and shall cause all

Employers in the Project Area and Permitted Transferees to comply with New York State

Labor Law Articles 8 and 9. Developer acknowledges that all construction in the Project Area

shall be considered Public Work within the meaning of New York State Labor Law Article 8,

and all Building Service Contracts, within the meaning of New York State Labor Law Article

9, shall be considered contracts with one or more Public Agencies.

6.2 LIVING WAGES. All work in the Project Area not covered by New York

State Labor Law Article 8 or Article 9 shall require the payment of a Living Wage, as defined

by Chapter 11 of the Code of the Village.

ARTICLE 7

HOUSING

7.1 PURPOSE. The purpose of this Article is to foster the successful creation

of housing that is attainable by, and affordable to, current residents of the Village of

Hempstead, and to require that such housing remain affordable in the long-term to the

Community.

7.2 PROJECT-WIDE AFFORDABILITY REQUIREMENTS. Developer shall

cause to be constructed not less than thirty-five percent (35%) of the housing units in the


Project as Affordable Housing Units in the proportions and with the characteristics set forth in

the table contained in this Section 7.2 (the “Affordable Housing Table”). For example, when

all housing units in the Project have been Completed, three and one-half percent (3.50%) of

all such housing units shall be rental units Affordable to households whose income is equal to

or less than forty percent (40%) of AMI. Thus, if 3,400 housing units were Completed in the

Project, the number and type of Affordable Housing Units reserved for households qualifying

for each AMI tier described in the Affordable Housing Table would be as shown in column 4

of such table; the qualifying income, based on the most recent AMI data available, would be

as shown in column 5 of such table.

AMI Percentage Range

Affordable Housing Type

Percentage of Total Project

Affordable Housing Units if 3,400 Total Housing Units are Created in the Project (for illustrative purposes only)

Qualifying Income for 4-person Household (most recent data available; for illustrative purposes only)

40% AMI or lower Affordable Rentals 3.50% 119 $21,964






100% AMI or lower

Affordable Rentals 3.50% 119 $54,910

110% AMI or lower


120% AMI or lower


130% AMI or lower

Affordable Rentals or Affordable Homeownership

3.50% 119 $71,383

Total Affordable Housing Units

35.00% 1,190


7.3 PHASE-SPECIFIC REQUIREMENTS. Developer shall ensure that: (.1)

when all housing units in any Phase of the Project is Completed, at least one-third (33.33%) of

such housing units shall be Affordable Housing Units; (.2) when all housing units in any

Phase are Completed, of the Affordable Housing Units, at least one-half (50.0%) of those

Affordable Housing Units will be units reserved for households in the 40%, 50%, 60%, and/or

70% income tiers; (.3) the Phases are built sequentially such that the construction of housing

units will not commence in any given Phase until the Affordable Housing Units in the prior

Phase have been Completed; (.4) the Affordable Housing Units shall be integrated within the

larger Project and not segregated onto separate floors, separate streets, separate buildings, or

otherwise made to stand separate from the other units; and (.5) the infrastructure work,

including grading and paving, is completed for any Affordable Housing Units will be

constructed simultaneously with completion of such work for market rate housing in such

Phase.

7.4 NUMBER OF BEDROOMS FOR AFFORDABLE HOUSING UNITS.

Developer shall ensure that: (.1) the Affordable Rentals shall include a range of housing

options including studio, 1-, 2-, and 3-bedroom units; (.2) the average number of bedrooms of

all Affordable Rentals, including studio apartments (which shall be counted as .5 bedroom

units for purposes of this Section 7.4), taken as a whole, shall greater than or equal to 2.0; and

(.3) the average number of bedrooms of all for-sale Affordable Homeownership Units, taken

as a whole, shall be greater than or equal to 2.0. These averages shall be maintained during

each Phase.


7.5 AFFORDABLE HOUSING PREFERENCE. Developer, in consultation

with HCBA-IG, shall create a marketing strategy and screening process to target Affordable

Housing Units, to the maximum extent allowed by law, to the following people to the extent

they are income-qualified, in order of priority:

7.5.1 First, to current residents in the Project Area who have lost their

homes, or been relocated by the Developer in accordance with Section 7.7

hereof due to the Project;

7.5.2 Then, to other current residents in the Project Area;

7.5.3 Then, to other residents of the Village of Hempstead;

7.5.4 Then, to residents of the Neighboring Communities.

7.6 LONG-TERM AFFORDABILITY. Developer, and any successor owner or

lessee of any building in the Project will maintain income and rent restrictions on each

Affordable Housing Unit in the Project so that such unit remains affordable for the income

tier for which such unit was created in accordance with this Article 7 for a period of

ninety-nine (99) years after such unit is first placed in service. The goal of the Developer

shall be to maintain the affordability of the units for the term and income tiers specified

above and, accordingly, rent increases applicable to both continuing tenants and vacancies

will be consistent with this goal and maintaining the economic viability of the Project.

HCBA-IG and Developer will develop together the term and mechanism for long-term

affordability restrictions on Affordable Homeownership units consistent with any applicable


governmental programs. Where any law, regulation, or rule requires or allows for a longer

period of affordability for any of the units in the Project than the term described in this

Section 7.6, such longer period shall apply.

7.7 RELOCATED FAMILIES. The Developer will provide all residential

tenants currently renting and legally occupying a legal residential dwelling unit as their

primary residence within the Project Area who are in good standing under the terms of a

valid written lease agreement at such time as their premises are Impacted By Construction of

the Project with Reasonably Comparable Living Spaces in new units within the Project Area

at their then-current rent, along with a reasonable cash stipend to pay reasonable relocation

costs in full. Such cash stipend shall be paid prior to relocation. If a Reasonably Comparable

Living Space at the same rent is not available for any particular family, Developer shall pay

the difference in rent for a Reasonably Comparable Commercial Space within the Project

for a time period equal to the duration of any lease, plus an additional period of twelve (12)

months.

ARTICLE 8

SMALL BUSINESS OWNER RIGHTS

8.1 PURPOSE. The purpose of this Article is to provide benefits to the small

businesses that currently operate in the Project Area and to give them an opportunity to

continue to operate their businesses in the Village during and after the construction of the


Project.

8.2 RELOCATED BUSINESSES. The Developer will provide all commercial

tenants currently renting and legally occupying a legal commercial unit within the Project

Area who are in good standing under the terms of a valid written lease agreement at such time

as their premises are scheduled to be impacted by construction of the Project with

Reasonably Comparable Commercial Space in a new commercial space within the Project at

their then-current rent, along with a cash stipend to pay reasonable relocation costs in full,

including any licensing fees. Such amounts shall be paid by Developer to a commercial tenant

prior to its relocation. If a Reasonably Comparable Commercial Space at the same rent is not

available for any particular commercial tenant, Developer shall pay the difference in rent

for a Reasonably Comparable Commercial Space within the Project for a time period equal to

the duration of any lease, plus an additional period of twenty-four (24) months.

8.2.1 Loss of Business Due To Relocation. A commercial tenant that

relocates its business pursuant to Section 8.2 and which can

demonstrate that it has lost income due to such relocation shall be

reimbursed for such losses by Developer. Commercial tenants seeking

payment for losses due to relocation shall provide proof of revenue before

and after their relocation to HCBA-IG and the Developer, and the

Developer shall reimburse those businesses within thirty (30) days of any

request. Commercial tenants shall have a right to be made whole for such

losses for the remainder of the term of their commercial lease. It is


expressly acknowledged that a business that can show its profits have

fallen by five percent (5%) or more from the same month of the prior year

has suffered those losses because of the relocation and shall be owed said

payment by Developer.

Notwithstanding this Section 8.2, all commercial tenants within the Project Area shall

have all rights and remedies available to them under their leases, including the right to

remain undisturbed in their leased premises.

ARTICLE 9

COMMUNITY AMENITIES AND FACILITIES

9.1 PURPOSE. The purpose of this Article is to provide other needed benefits

to the Community and to make sure that the benefits of the Project do not become limited to

only new residents of the Village who move to the market rate units in the Project.

9.2 RECREATION CENTER AND COMMUNITY CENTER. The Project

shall include a centrally-located recreation center and community center open to the

Community. The facilities shall include:

.1 At least two computerized classrooms that would each hold 25

students for GED and vocational training;

.2 A gymnasium that would support one hundred (100) simultaneous

users with new fitness equipment, and an indoor courts that would be


suitable for basketball and other team sports;

.3 A 25 yard, 8 lap indoor swimming pool; and

.4 A full commercial kitchen.

9.3 OUTDOOR PARKS AND RECREATION. The Project shall include at

least three (3) acres of outdoor parks, green spaces, and recreational areas that are open to the

Community free of charge.

9.4 PERFORMING ARTS THEATER AND CULTURAL AND

PERFORMING ARTS COUNCIL. The Project shall include the creation of a performing arts

theater that shall offer nonprofit programming to the Community. Said theater shall be of at

least ten thousand (10,000) square feet and have at least one thousand five hundred (1,500)

seats for audience members. HCBA-IG shall establish or cause to be established a cultural and

performing arts council that shall oversee programming at the performing arts theater, and

which shall be able to negotiate fees to be paid to said cultural and performing arts council

with individual acts.

9.5 INFRASTRUCTURE. The Project shall include Community-wide

upgrades to infrastructure in the Community, including but not limited to upgrades to the

Community’s water and sewer system and power grid.

9.6 SCHOOL SYSTEM EXPANSION. The Project shall include the


construction of additions to the current public school buildings for students of all grades, pre-

K through high school, or include the construction of additional school buildings for students

of all grades. The Project shall increase the number of classrooms available to students in

grades from pre-K through 12th grade by a sufficient size to hold an additional fifty (50)

students per grade without increasing current class sizes. This means an expansion of the high

school facilities, which house four (4) grades, by at least eight (8) classrooms; an expansion of

the middle school facilities, which house three (3) grades, by at least eight (8) classrooms; and

an expansion of the elementary schools, which house six (6) grades, by at least ten (10)

classrooms. In addition to that expansion, the Project must also expand schools that currently

house students in trailers by a sufficient number of classrooms so that no students are housed

in trailers without increasing current class sizes. The Project must also fund school busses that

provide transportation to and from school for all students from pre-K through 12th grade who

live in the Village of Hempstead.

9.7 EDUCATION, CAREER, SAFETY, AND LITERACY DEVELOPMENT

FUND. Developer shall contribute or cause to be contributed _____________________

dollars ($________) (the “Education, Career, Safety, and Literacy Program Contribution”) to

a fund to be entitled the “Education, Career, Safety and Literacy Program Development Fund”

to be held by an Approved Foundation. Developer shall work cooperatively with HCBA-IG to

increase funding to the Education, Career, Safety, and Literacy Program Development Fund

beyond the Education, Career, Safety, and Literacy Program Contribution by seeking

additional funds from the Town of Hempstead, Nassau County, New York State, the federal


government and private donors. Developer shall deposit the Education, Career, Safety, and

Literacy Program Contribution in the Education, Career, Safety and Literacy Program

Development Fund in the following installments:

9.7.1 _____________________ dollars ($________) within ten (10) days

of the execution of this Agreement;


2012 (estimated date of initial construction work);


2013;


2014;


2015; and


2015.

In the event that Village Project Termination happens prior to the Developer fulfilling its

obligation to fund the Education, Career, Safety and Literacy Contribution, the Liquidated

Damages provisions of Section 12.4 apply.

9.8 CREATION OF THE EDUCATION, CAREER, SAFETY AND

LITERACY PROGRAM. Within sixty (60) days of the execution of this Agreement, HCBA-

IG shall establish or cause to be established an Education, Career, Safety, and Literacy


Program, which shall be managed by, or report to, HCBA-IG. HCBA-IG shall use funds from

the Education, Career, Safety, and Literacy Program Development Fund to do the following:

(.1) expand early childhood (pre-K through second grade); (.2) expand afterschool and

academic support programs; (.3) expand or create career training programs for students of all

grade levels; (.4) provide funding for transportation for students following afterschool and

other programs that run later than the traditional school day; (.5) provide funding for a

physical expansion of the public library building; (.6) provide funding for increased policing

to areas around the construction site during the construction period; (.7) provide increased

funding for the Village fire department; and (.8) provide funding for school busses for

students of all grades in the Village of Hempstead.

ARTICLE 10

DEVELOPER STANDARD OF CARE AND REPORTING OBLIGATIONS

10.1 STANDARD OF CARE. The Developer, Village, and Coalition shall use

their skill, care, judgment, and experience to manage, lead, guide, assist, coordinate, oversee

and supervise, as appropriate and necessary, all parties, processes and tasks involved in the

implementation of this Agreement. At all times, the Developer shall adhere to the highest

professional standards of care and shall dedicate such resources to fulfilling its obligations

under this Agreement that would be consistent with a developer exercising such highest

professional standards of care.


10.2 REPORTING OBLIGATIONS. Within thirty (30) days after the end of

each calendar quarter, the Developer will prepare and submit to the Village, HCBA-IG, and

the ICM a status report that shall analyze the progress of the Developer in its obligations

under this Agreement and shall include, without limitation, the following information, as

relevant for such quarter, for the prior most recent four quarters, and overall, with a

primary focus on benefits delivered to the Community and Neighboring Communities:

10.2.1 Status of the Jobs Program, including but not limited to statistics

regarding the enrollment in the Workforce Development Program,

participation in the Pre-Apprentice Training Program, the job training

program for non-union construction work and other work, professional

services employment, employment through the First Source Referral

System, and continuing employment.

10.2.2 Status of the Contracting program, including but not limited to

statistics regarding M/WBE contracts awarded and M/WBE contracts

awarded to M/WBEs whose principal office is located in the Village, for

pre-construction services, construction services, and post-construction

services. Status of the Village-Based M/WBE Assistance Program,

including progress in Community outreach, unbundling of construction

projects into smaller bid sizes, assistance provided with bonding or

reduced bonding requirements, assistance with access to insurance,

procurement, and related matters, and assistance in preparation of loan

applications and trainings on bank underwriting, financial management,


and business development.

10.2.3 Statistics on wages for workers in the Project, including wages

for Residents of the Community and Neighboring Communities, broken

down into wages for construction work, building service work, and other

work.

10.2.4 Statistics on housing, including the number and size of units

created in each AMI tier; number of bedrooms in each AMI tier,

numbers and percentages of people who have been screened and offered

Affordable Housing Units from the Community and Neighboring

Communities, and numbers of relocated families.

10.2.5 Statistics on small businesses in the Community, including

numbers of businesses that have been relocated, numbers of businesses

that have chosen to lease or purchase commercial space in the Project

Area;

10.2.6 Statistics on the construction and use of the community facilities

described in Article 9, including but not limited to the recreation center

and community center, outdoor parks and recreation, performing arts

theater, infrastructure upgrades, school system expansion, and

Education, Career, Safety, and Literacy Program.

10.3 MONTHLY NOTICE OF UPCOMING BIDS. Each month, Developer will

prepare and submit to HCIM and the ICM a schedule of the contracts that Developer expects


to obtain bids for over the upcoming three- (3-)month period and the expected scope and

value of each contract.

ARTICLE 11

NOTICES

11.1 NOTICES. All notices, requests, demands, consents and approvals under

this Agreement (each, a “Mailing”) shall be in writing and shall be hand delivered, send by

registered U.S. Mail, return receipt requested, or sent by overnight courier service, designated

for next-day delivery, as follows:

If to Developer: RENAISSANCE DOWNTOWNS URBAN AMERICA LLC

c/o Renaissance Downtowns LLC

9 Gerhard Road

Plainview, NY 11803

With a copy to: [RDUA COUNSEL]

If to the Village:

VILLAGE OF HEMPSTEAD

99 Nichols Court

Hempstead, NY 11550


With a copy to: [Village Counsel]

If to any Coalition Member or HCBA-IG:

[Coalition Member]

c/o Hempstead CBA Implementation Group, Inc.

____________________

[address]

With a copy to: [HCBA-IG COUNSEL]

And if such Mailing is directed toward solely one Coalition Member, also with a copy to that

Coalition Member at the address listed on Schedule A attached hereto. Any valid notice sent

by an attorney representing a Party shall qualify as a valid Mailing under this Agreement.

11.2 CHANGES OF ADDRESS. Any party hereto may designate a different

address to which, or Person to whom, Mailings shall be directed by written notice given in

the same manner and directed to each other party at its address listed on Schedule A attached

hereto, as amended.

11.3 RECEIPT. Any Mailing given hereunder shall be deemed received one

(1) business day after delivery to an overnight delivery service, designated for next-day

delivery; two (2) business days after mailing if sent by registered U.S. mail, return receipt


requested; or when actually received if sent in any other permissible fashion.

ARTICLE 12

ENFORCEMENT

12.1 PAYMENT INTO ESCROW BY DEVELOPER. To partially ensure

compliance with the terms of this Agreement, Developer shall deposit

_____________________ dollars ($________) into an escrow account overseen by an

Approved Foundation within ten (10) days of the execution of this Agreement. These funds

shall be released to the Developer upon the achievement of the following benchmarks:

12.1.1 Initial, timely funding of the ICM by Developer shall cause the release

of _____________________ dollars ($________);

12.1.2 Initial, timely annual funding payment to HCBA-IG shall cause the

release of _____________________ dollars ($________);

12.1.3 Satisfactory, timely contribution to the Jobs Program Development

Fund under both Section 4.2.1 and Section 4.2.2 and satisfactory contribution

to the Education, Career, Safety, and Literacy Program Development Fund

under both Sections 9.7.1 and 9.7.2 shall cause the release of

_____________________ dollars ($________);

12.1.4 Complete, timely funding of the Jobs Program Development Fund

under Article 4 and the Education, Career, Safety, and Literacy Program


Development Fund under Article 9 shall cause the release of the remaining

_____________________ dollars ($________).

Failure to meet these benchmarks shall cause the funds in escrow to be delivered to HCBA-IG

to pursue other enforcement mechanisms in this Article 12.

12.2 HCBA-IG TAX STATUS. The Coalition agrees, as a further incentive to

Developer, to encourage HCBA-IG to file for federal tax exempt status pursuant to Section

501(c)(3) of the Internal Revenue Code of 1986, as amended, upon the release of escrow

described in Section 12.1.4.

12.3 DEFAULT BY DEVELOPER. Failure by the Developer to perform any

term or provision of this Agreement, after notice and ten-day right to cure as provided

below, shall constitute a Default under this Agreement. Unless otherwise specified in the

Agreement, the following procedures will govern:

12.3.1 Ten-Day Right to Cure. If, after review of the ICM report by HCBA-

IG, HCBA-IG, the Village, or any two Coalition Members believe that

Developer is in Default of this Agreement, HCBA-IG, the Village, or said

two Coalition Members shall provide written notice to Developer of the

alleged Default; offer to meet and confer in a good-faith effort to resolve the

issue; and provide Developer ten (10) days to cure the alleged Default

commencing with the date of the notice (unless additional time is specifically

provided for in this Agreement). Any notice given pursuant to this provision


shall specify the nature of the alleged Default, and, where appropriate, a letter

stating the manner in which the alleged Default may be satisfactorily cured

shall be sent to the Developer.

12.3.2 Mediation. To the extent there is any disagreement regarding a

Default by Developer of its obligations under this Agreement, the Coalition

Members, the Village, and the Developer will first attempt to resolve the

disagreement at a special meeting of the Board of HCBA-IG. If the parties are

unable to resolve the disagreement(s) at the meeting, any of the parties may

request mediation by notice to the ICM, who shall pick an appropriate,

independent mediator. Developer shall pay the reasonable costs of a mediator

for the dispute resolution, and each party will bear its own fees and other

costs, if any. The mediation period shall not exceed an additional twenty (20)

days subsequent to the cure period described in 12.3.1.

12.3.3 Remedies. In the event that Developer is allegedly in Default under

the terms of this Agreement, the Coalition Members and/or Village may elect,

in their sole and absolute discretion, to waive the Default or to pursue either

binding arbitration, or judicial remedies, each as described in this Section.

These remedies may be pursued only after exhaustion of processes described

in 12.3.1 and 12.3.2, except where an alleged Default may result in

irreparable injury, in which case the Coalition Members or HCBA-IG may

immediately pursue the judicial or binding arbitration remedies described in

Sections 12.3.3.1 and 12.3.3.2.


12.3.3.1 Judicial Remedy. The Village or any Coalition Member may,

singly or jointly, act to enforce any term of this Agreement through

litigation in a court of competent jurisdiction. The Village or Coalition

Members may seek judicial relief ordering, and the court shall have the

power to order, affirmative equitable and/or affirmative injunctive

relief, temporary or permanent, requiring Developer to comply with

this Agreement or monetary damages. Developer hereby acknowledges

that monetary damages may not be an adequate remedy for Defaults

under this Agreement by Developer. Each Party shall bear its own fees

and costs of court enforcement.

12.3.3.2 Binding Arbitration Remedy. The Village or any Coalition

Member may, singly or jointly, act to enforce any term of this

Agreement through binding arbitration. Any such binding arbitration

shall be conducted in Nassau County, New York, conducted by a single

arbitrator selected by the Nassau County Bar Association under the

rules of the American Arbitration Association. Developer shall pay the

costs of the arbitrator. Each Party shall bear its own fees and other

costs. The Village or Coalition Members may seek arbitration relief

ordering, and the arbitrator shall have the power to order, affirmative

equitable and/or affirmative injunctive relief, temporary or permanent,

requiring Developer to comply with this Agreement or monetary

damages.


12.4 LIQUIDATED DAMAGES. In the event of a Default by Developer or

Village Project Termination, Coalition Members may pursue any remedies available under

this Agreement. In the event of a Village Project Termination prior to Developer fully funding

the Developer Implementation Fee, the Developer ICM Payment, the Jobs Program

Contribution or the Education, Career, Safety, and Literacy Contribution, Developer shall

offer the remaining funding for these payments to the Coalition, by certified check, which, if

accepted and deposited by the Coalition, shall constitute liquidated damages in full settlement

of all claims of against Developer. Nothing herein shall prevent the Coalition from declining

said tender of liquidated damages and pursuing equitable relief.

12.5 DEFAULT BY COALITION MEMBER. Failure by a Coalition Member

to perform any term or provision of this Agreement, after notice and ten-day right to cure as

provided below, shall constitute a Default under this Agreement. Unless otherwise

specified in the Agreement, the following procedures will govern:

12.5.1 Ten-Day Right to Cure. If, after review of the ICM report by HCBA-

IG, HCBA-IG or any two Coalition Members believe, or if Developer or

Village believes, that a Coalition Member is in Default of this Agreement,

Developer, Village, HCBA-IG, or said two Coalition Members shall provide

written notice to the Coalition Member of the alleged Default; offer to meet

and confer in a good-faith effort to resolve the issue; and provide the

allegedly Defaulting Coalition Member ten (10) days to cure the alleged


Default commencing with the date of the notice (unless additional time is

specifically provided for in this Agreement). Any notice given pursuant to

this provision shall specify the nature of the alleged Default, and, where

appropriate, a letter stating the manner in which the alleged Default may be

satisfactorily cured shall be sent to the allegedly Defaulting Coalition

Member.


Default by a Coalition Member of its obligations under this Agreement,

HCBA-IG, the Village, any two Coalition Members, or the Developer and the

allegedly Defaulting Coalition Member will first attempt to resolve the

disagreement at a special meeting of the Board of HCBA-IG. If the parties are

unable to resolve the disagreement(s) at the meeting, any of the parties may

request mediation by notice to the ICM, who shall pick an appropriate,

independent mediator. Developer shall pay the reasonable costs of a mediator

for the dispute resolution, unless the dispute is only between two or more

Coalition Members, and each party will bear its own fees and other costs, if

any. The mediation period shall not exceed an additional twenty (20) days

subsequent to the cure period described in 12.5.1.

12.5.3 After Mediation. After mediation, if the parties have not agreed on a

course of action to remedy a Coalition Member’s Default, the responsibilities

of said Defaulting Coalition Member under this Agreement shall become the

responsibilities of the non-Defaulting Coalition Members, who may agree to


transfer said responsibilities to HCBA-IG or to a not-for-profit organization

with tax exempt status under Section 501(c)(3) of the Internal Revenue Code

of 1986, as amended.

12.5.4 Bad Faith. If the ICM has cause to believe that the Village or

Developer is utilizing this Section 12.5 in bad faith, including but not limited

to not seeking to resolve disagreements informally or through mediation, the

ICM shall have the authority to declare that a Coalition Member is not in

Default or to declare a past Default void ab initio.

12.6 EQUITABLE RELIEF. Subject to Section 12.4, the Parties hereto agree that

monetary damages would be an inadequate remedy for any breach of this Agreement and

agree that this Agreement shall be enforced by preliminary or permanent injunction, by a

decree of specific performance, or other such order or decree of an arbitrator as described

above or a court of competent jurisdiction. With the exception of an order or award to a Party

to pay sums it has agreed to pay under this Agreement, and the liquidated damages provisions

in Section 12.4, monetary damages shall in no circumstances be available as a remedy for

Default of this Agreement.

12.7 EQUITABLE RELIEF IN CASES OF ALLEGED IRREPARABLE INJURY.

Notwithstanding anything to the contrary in this Article 12, in the event that any objecting

Party reasonably believes that it will suffer irreparable injury if it follows the right to cure and

mediation procedures of Sections 12.3.1 and 12.3.2 or 12.5.1 and 12.5.2, that objecting Party


may institute legal proceedings in any court of competent jurisdiction to enforce the specific

performance of this Agreement by another Party, and/or temporarily, preliminarily or

permanently enjoin that Party from violation of this Agreement, but only to the extent that the

objecting Party provides written notice it intends to seek such relief. Such proceedings shall

be in addition to, and not in lieu of, any other right which a Party may have under this

Agreement.

12.8 DEFAULT BY VILLAGE. Failure by Village to perform any term or

provision of this Agreement, after notice and ten-day right to cure as provided below, shall

constitute a Default under this Agreement. Unless otherwise specified in the Agreement,

the following procedures will govern:

12.8.1 Ten-day Right to Cure. If, after review of the ICM report by HCBA-

IG, HCBA-IG or any two Coalition Members believe that the Village is in

Default of this Agreement, HCBA-IG or said two Coalition Members shall

provide written notice to the Village of the alleged Default; offer to meet and

confer in a good-faith effort to resolve the issue; and provide the Village with

ten (10) days to cure the alleged Default commencing with the date of the

notice (unless additional time is specifically provided for in this Agreement).

Any notice given pursuant to this provision shall specify the nature of the

alleged Default, and, where appropriate, a letter stating the manner in which

the alleged Default may be satisfactorily cured shall be sent to the allegedly

Defaulting Village.



Default by the Village of its obligations under this Agreement, HCBA-IG or

any two Coalition Members will first attempt to resolve the disagreement at a

special meeting of the Board of HCBA-IG. If the parties are unable to resolve

the disagreement(s) at the meeting, any of the parties may request mediation

by notice to the ICM, who shall pick an appropriate, independent mediator.

Developer shall pay the reasonable costs of a mediator for the dispute

resolution, unless the dispute is only between two or more Coalition

Members, and each party will bear its own fees and other costs, if any. The

mediation period shall not exceed an additional twenty (20) days subsequent

to the cure period described in 12.5.1.

12.5.3 After Mediation. After mediation, if the parties have not agreed on a

course of action to remedy the Village’s Default, the responsibilities of the

Village, to the extent permitted by law, under this Agreement shall become

the responsibilities of the non-Defaulting Coalition Members, who may agree

to transfer said responsibilities to HCBA-IG or to a not-for-profit organization

with tax exempt status under Section 501(c)(3) of the Internal Revenue Code

of 1986, as amended.

ARTICLE 13

SUPPORT OBLIGATIONS AND JOINT ADVOCACY


13.1 COALITION SUPPORT FOR THE PROJECT. In light of the Community

benefits contained herein, Coalition Members shall take the following positions and provide

the assistance contained in this Article 13 with respect to the Project through the Completion

of the Project.

13.1.1 Coalition Members shall publicly support the Project, including in

any public hearing or other public event;

13.1.2 Coalition Members shall use reasonable, good faith efforts to

encourage the individuals and entities affiliated with said Coalition

Members to fully support the Project. Such reasonable, good faith efforts

shall mean a series of attempts to persuade the individuals or entities

affiliated with the Coalition Member in question, but shall not require a

Coalition Member to terminate a relationship with an employee, officer,

director, or corporate member of a Coalition Member that does not in his or

her individual capacity support the Project.

13.1.3 Coalition Members shall agree to refrain from filing any lawsuit

against the Developer or the Village, including any lawsuit against the

Village pursuant to Article 78 of the New York Civil Practice Laws and

Rules in relation to the environmental review process (“Article 78s”) for

the Project. Coalition Members will publicly support the Village in its

defense against any Article 78s filed by third parties. Any Article 78s filed

by any Coalition Member prior to the execution of this Agreement shall be

voluntarily withdrawn by said Coalition Member upon execution of this


Agreement.

13.1.4 Upon the request of Developer or the Village, each Coalition

Member shall send a letter in support of the Project, the text of which is set

forth in Exhibit C, to any governmental or public entity specified by

Developer. The parties may mutually agree to revise the text of such letter.

13.1.5 Upon the request of Developer or the Village, one or more

Coalition Members shall, upon reasonable notice, agree to speak in support

of the Project at a public hearing with a message generally consistent with

that contained in Exhibit C.

13.2 COALITION SUPPORT FOR ONLY THIS CBA. The Coalition shall

publicly oppose any efforts by private individuals or organizations to require greater

commitments from the Village or Developer for the provisions of community benefits related

to the topics covered herein.

13.3 JOINT ADVOACY. The Coalition and Developer shall jointly advocate for

the Final CBA Implementation Plan to be adopted by the Village as the Community Benefits

Plan For Zoning.

13.4 BREACH OR DEFAULT. Upon a breach or Default of this Agreement by

Developer, the Coalition and all Coalition Members shall be released from all obligations

under this Article 13.


ARTICLE 14

TRANSFER AND ASSUMPTION AGREEMENTS

14.1 TRANSFER. Developer shall not assign, sell, or otherwise transfer

(“Transfer”) all, or any part of, or any interest in this Agreement. Developer may only

Transfer all, or any part of, or any interest in this Agreement upon (.1) the prior written

consent of the Coalition; and (.2) said Transfer being in full compliance with the requirements

of Section 14.2.

14.2 ASSUMPTION AGREEMENTS. Developer shall not execute any deed,

lease, use agreement, license, or other conveyance of any property rights or interest in or to all

or any portion of the Project, and shall not transfer all or any portion of its interest in this

Agreement or the Project, unless Developer and the relevant transferee have executed an

assumption agreement governing conveyance of such interest in the Project (an “Assumption

Agreement”), which shall require:

14.2.1 Transferee shall assume all terms of this Agreement with respect to

the interest in the Project being acquired;

14.2.2 Such Assumption Agreement shall include all terms of this

Agreement as material terms therein;

14.2.3 Such Assumption Agreement shall provide that such requirements are

enforceable by HCBA-IG, any Coalition Member, or the Village as intended


third party beneficiaries, specifically, that HCBA-IG, the Village, and

Coalition Members shall have the same right to enforce such assumed

obligations against such transferee as they had against Developer prior to

execution of any Assumption Agreement;

14.2.4 In the case of the Transfer of all or substantially all of Developer’s

obligations, the transferee shall expressly agree, as a material term of the

Assumption Agreement, that it has financial resources reasonably sufficient to

perform the obligations of Developer under this Agreement that are being

Transferred.

Thirty (30) days prior to the execution by any entity of any Assumption Agreement,

Developer shall deliver to Coalition a copy of each such Assumption Agreement. Prior to the

execution of any Assumption Agreements between Developer and any transferee, Developer,

HCBA-IG, and the ICM shall also meet and confer regarding such agreements to confirm the

mechanism by which transferee shall assume all obligations of Developer pursuant to this

Agreement in order to ensure that this Agreement is implemented by any transferee as

intended by the Parties. Upon execution of any such Assumption Agreements, Developer shall

deliver an executed copy thereof to Coalition, at which point time transferee shall become a

Permitted Transferee.

14.3 DEVELOPER LIABILITY. Developer shall be relieved of any obligations

under this Agreement as a result of any such Transfer to the extent, but only to the extent, that

Permitted Transferee assumes such obligations in an Assumption Agreement that satisfies all


terms of this Article 14.

ARTICLE 15

MANAGEMENT OF FUNDS

Developer, Village, and HCBA-IG shall jointly negotiate an agreement with an Approved

Foundation regarding that foundation’s acceptance of funds provided by Developer under this

Agreement (the “Escrow/Funding Agreement”). This agreement shall require the foundation

to maintain such funds in a reputable, insured bank or credit union designated in the

Escrow/Funding Agreement and to restrict releases of funds to those approved in writing by

HCBA-IG.

ARTICLE 16

PROPERTY TAXES; OBLIGATIONS OF THE VILLAGE

16.1 No PILOTS. Developer agrees that it shall not seek nor accept from the Village

an agreement to pay, instead of property taxes, an alternative amount known as a Payment In-

Lieu of Taxes. Developer agrees to pay full property taxes to the Village for all properties it

owns, with no reductions or limits. Developer shall not execute any contract, lease agreement,

or similar agreement related to the rental, lease, sale, or occupancy of the entirety of or any

portion of the Project, unless Article 16 is included as a material term of the Contract or lease

agreement in question.


16.2 Obligations of the Village. Upon execution of this Agreement, the Village,

acting through its Board of Trustees in a meeting duly called and at which a quorum was

present throughout, has approved the terms of this Agreement to be adopted as the

Community Benefits Policies For Zoning. The Village is not obligated to adopt the Final CBA

Implementation Plan as the Community Benefits Policies For Zoning, although the Coalition

and Developer agree to jointly advocate for the Village to do so in accordance with Article 3

hereof.

ARTICLE 17

MISCELLANEOUS PROVISIONS

17.1 BINDING ON SUCCESSORS. Subject to Article 14, this Agreement shall be

binding upon and inure to the benefit of the Parties and each of their respective heirs,

administrators, executors, successors in interest and assigns, including, but not limited to, any

Permitted Transferees. To the extent permitted by Section 17.2, this Agreement may be

enforced by any Committee Member and by Developer, and may be enforced against each of

the Committee Members, together with their respective successors and assigns in interest.

References in this Agreement to a transferee or a Permitted Transferee shall be deemed to

apply to any successor or assign of that transferee.

17.1.1 Not a Lien. The Parties agree and acknowledge that this Agreement

shall not be deemed to be a lien on the Project or the Project Area, and that

under no circumstances shall any Committee Member or their successors in


interest be entitled to foreclose upon or otherwise be entitled to obtain any

interest in the Project or the Project Area as a result of this Agreement. Should

any Permitted Transferee require of Developer or its successors that this

Agreement not apply to the interest in the Project Area acquired by such

Permitted Transferee, the Parties may agree to execute and deliver in

recordable form such instruments as such Permitted Transferee shall

reasonably request in order to meet such requirement.

17.1.2 Notwithstanding any other provision of this Agreement, mortgages,

deeds of trust, and personal property and fixture security interests (“Debt

Instruments”) are permitted to be placed upon the Project, the Project Area and

this Agreement or any interest in them for the purpose of securing loans and

other obligations related to acquiring or improving the Project Area. Under no

circumstances shall the holders (which are not owned, controlled or under

common control with Developer or any constituent entity of Developer) of

such Debt Instruments or their successors or assigns in interest have any

liability or obligation under this Agreement; provided, that should such holders

or their successors in interest (whether through foreclosure or otherwise) elect

to construct improvements in the Project Area (other than to preserve the value

thereof or for public health or safety purposes), such holders and successors in

interest shall be bound by the provisions of this Agreement to the extent of

their interest in the Project. Coalition Members agree to execute and deliver in

recordable form such documents and instruments as may reasonably be


requested by the holder or holders, or prospective holder or holders, of Debt

Instruments in order to clarify and confirm the provisions of this Section

17.1.2.

17.2 RECORDATION. The obligations of the Parties set forth herein shall

constitute covenants running with the land and promptly upon Developer's purchase of any

fee interest in the Project, whether or not such purchase happens before or after the execution

of this Agreement, Developer shall prepare a private land use restriction memorializing all

obligations set forth in this Agreement, acceptable to the Coalition in their reasonable

discretion, which private land use restriction shall be recorded in office of the Nassau County

Clerk, and, upon recordation, such private land use restriction shall inure to the benefit of, and

be binding upon, any future owner of an interest in the Project and each of their respective

heirs, successors in interest and assigns.

17.3 WAIVER. No provision of this Agreement shall be deemed waived except by

a signed writing executed by the waiving party. The waiver by any Party of any provision or

term of this Agreement shall not be deemed a waiver of any other provision or term of this

Agreement or a waiver of any provision or term of this Agreement by any other Party. The

mere passage of time, or failure to act upon a breach, shall not be deemed a waiver of any

provision or term of this Agreement.

17.4 CONSTRUCTION. Each of the Parties has had the opportunity to be advised


by counsel with regard to this Agreement. Accordingly, this Agreement shall not be strictly

construed against any Party, and any rule of construction that any ambiguities be resolved

against the drafter shall not apply to this Agreement.

17.5 ENTIRE AGREEMENT. The Agreement (including all Exhibits identified

herein and the Final CBA Implementation Plan, each of which is hereby incorporated by

reference) contains the entire agreement between the Parties with respect to the subject matter

hereof. Any prior correspondence, memoranda, agreements, warranties or representations

relating to such subject matter, whether written or oral, are superseded in total by this

Agreement. This Agreement may be amended solely by a written instrument executed and

delivered by Developer and the Coalition.

17.6 AGREEMENT LAWFUL AND ENFORCEABLE. All Parties agree that this

Agreement is lawful, enforceable, and binding on all Parties; agree to waive any challenges to

the enforceability of this Agreement; and agree not to either affirmatively, or by way of

defense, seek to invalidate or otherwise avoid application of the terms of this Agreement in

any judicial action or arbitration proceeding.

17.7 TIME OF THE ESSENCE. Time is of the essence with respect to each

provision of this Agreement in which time is a factor.

17.8 GOVERNING LAW. This Agreement has been entered into in the State of


New York, this Agreement and all rights of the parties hereunder shall be governed by and

construed in accordance with the internal laws of the State of New York without regard to

principles of conflicts of law.

17.9 SEVERABILITY. Each provision of this Agreement is severable. If any such

provision is determined by a court of competent jurisdiction to be invalid, void, unenforceable

or illegal, the validity and enforceability of the remainder of this Agreement shall be

unaffected and shall continue in full force and effect.

17.10 GENDER AND NUMBER. Whenever the context requires or clearly indicates,

the singular shall include the plural, and vice versa, and the male, female and neuter genders

shall include each of the others.

17.11 AUTHORITY OF SIGNATORIES. The individuals executing this Agreement

represent and warrant that they have the authority to sign on behalf of their respective Parties.

17.12 COUNTERPARTS. This Agreement may be executed in two or more

counterparts, each of which shall be deemed an original, but all of which taken together shall

constitute one and the same instrument.

17.13 FURTHER ASSURANCES. The Parties agree, without further consideration,

to take such actions and execute such additional documents as are reasonably necessary to


carry out the provisions of this Agreement.

17.14 COMPLIANCE INFORMATION. Upon a reasonable written request from any

Party, Coalition Member, Developer, or Permitted Transferee, another Person shall provide

reasonable records or information demonstrating that the requested Person is in compliance

with responsibilities set forth in this Agreement. No Party shall make such request of any

other single Person more often than twice per year, except to the extent that the nature of the

obligation being monitored requires more frequent reporting, as reasonably agreed upon by

the Parties.

17.15 CAPTIONS. The captions in this Agreement are intended only for

convenience of reference, do not constitute a part of this Agreement and shall not be

construed to define, interpret, describe or limit the scope or intent of any provision of this

Agreement.

17.16 EXCULPATION. No member, shareholder, officer, director or

employee of the parties hereto shall have any personal liability under this Agreement.

17.17 NO POLITICAL SUPPORT. No payment provided pursuant to this

Agreement is intended to or shall be construed as (.1) a payment or offer of payment in

consideration for any Person to vote or refrain from voting at any election, or (.2) a payment

or offer of payment in consideration for any Person to publicly endorse or support or refrain


from endorsing or supporting any candidate in any election.

17.18 NO EMINENT DOMAIN. Developer agrees that it shall not seek nor accept

any property acquired by eminent domain from the State of New York, Nassau County, Town

of Hempstead, the Village, or any entities or agencies affiliated therewith.

17.18 SUPPLEMENTAL DOCUMENTS. Recognizing that the implementation of

the provisions hereof with respect to various actions of the Parties hereto may require the

execution of supplemental documents, the precise nature of which cannot now be

anticipated, each of the Parties agrees to assent to, execute, and deliver such other and

further documents as may be reasonably required by other parties hereto so long as such

other and further documents are consistent with the terms and provisions hereof, shall not

impose additional obligations on any parties, shall not deprive any party of the privileges

herein granted to it and shall be in furtherance of the intent and purposes of this Agreement.

[This space intentionally left blank.]


IN WITNESS WHEREOF, the parties hereto have hereby duly executed and delivered this

Agreement as of the date first above written.

____________________________________

ABBA Leadership Center, Inc.

By:


____________________________________

Helping End Violence Now, Inc.

By:


____________________________________

Hempstead Classroom Teachers Association

By:


____________________________________

Hempstead Coordinating Council of Civic Associations, Inc.

By:


____________________________________

La Fuente, a Tri-State Worker & Community Fund, Inc.

By:


____________________________________

New York Communities for Change, Inc.

By:


____________________________________

Youth Empowerment Institute, Inc.

By:


____________________________________

By:


____________________________________

By:


EXHIBIT A

COALITION MEMBERS

ABBA Leadership Center, Inc.

[address]

Helping End Violence Now, Inc.

[address]

Hempstead Classroom Teachers Association

[address]

Hempstead Coordinating Council of Civic Associations, Inc.

[address]

La Fuente, a Tri-State Worker & Community Fund, Inc.

[address]

New York Communities for Change, Inc.

[address]


Youth Empowerment Institute, Inc.

[address]

____________________________

[address]

____________________________

[address]

____________________________

[address]


EXHIBIT B

HEMPSTEAD CBA IMPLEMENTATION GROUP, INC.

DRAFT CERTIFICATE OF INCORPORATION

[ATTACHED]


EXHIBIT C

MODEL LETTER OF SUPPORT

[ATTACHED]

Date post:	03-Aug-2020
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