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03-04-2002 AGENDA . COMMUNITY . REDEVELOPMENT AGENCY 03/04/02 . ., . ". . . -. , , . " '., '.'.', ,. " , , ACTION AGENDA - COMMUNITY REDEVELOPMENT AGENCY MEETING Monday, March 4, 2002 - Commission Chambers Item #1 - Call to Order - 9:05 a.m. Item #2 - Approval of Minutes - 2-4-02 regular meeting ACTION: Approved. ITEM #3 - CRA (Community Redevelopment Agency) Rules ACTION: Approved. ITEM #4 - Approve Development Agreement between the Community Redevelopment Agency of the City of Clearwater and The Balk Company, Inc. for a residential townhome development proposal fronting on Cleveland Street. ACTION: Approved. ITEM #5 - Approve the Interlocal Agreement between the Community Redevelopment Agency of the City of Clearwater and the City of Clearwater regarding The Balk Company, Inc. residential townhome development proposal fronting on Cleveland Street, and authorize the payment of $386,771 in various development, impact, and stormwater fees to the City over a three year period in Fiscal Years 2001/02 through 2003/04. ACTION: Approved. ITEM #6 - Executive Director (Assistant City Manager) Verbal Reports Ralph Stone thanked Trustees Gray and Hamilton for their time and commitment as Ex- Officio Members of the DDS and the City Attorney Pam Akin for help with the development and interlocal agreements regarding The Balk Company, Inc. project. ITEM #7 - Other Business It was suggested the City consider applying for designation of the downtown, as a Historic District to qualify for tax credits. ITEM #8 - Adjournment - 9:35 a.m. acr0302 1 03/04/02 Community Redevelopment Agency Agenda Cover Memorandum Worksession Item #: C f<.A 3 Final Agenda Item # Meeting Date: Mar. 4, 2002 SUBJECT/RECOMMEN DATION: Approve the revisions to the Community Redevelopment Agency Rules. o and that the appropriate officials be authorized to execute same. SUMMARY: · The rules for governing the Community Redevelopment Agency (herein to be referred to as the "Agency") have not been updated since 1993. · The rules for the most part do not need to be changed, but certain procedures have been changed since the last rules were adopted. · Major changes are for the use of the City Clerk for recording minutes, keeping records and distributing agendas, and the Executive Director responsibilities. Reviewed by: Originating Dept: t>; Costs -0- legal a Info Tech NA Economic Deve Total Budget NA Public Works NAn- User Dept. ,~ Funding Source: Purchasing NA DCMlACM ~. Economic Devel C~pilo' "nprovemenl Current fiscal Year Risk Mgmt NA Other NA Attachments Oper~lIn& Revised CRA Rules OIher C None Appropriation Code: Rev. 2/98 Revised: 2/20/2002 Community Redevelopment Agency Rules Rule 1 The membership of the Community Redevelopment Agency of the City of Clearwater, Florida {"Agency"}, shall be composed of the five members of the Clearwater City Commission and two ex-officio non-voting members of the Downtown Development Board. A quorum for the transaction of business by the Agency shall consist of three voting members, Any action to be approved will need a majority vote of the voting membership. Chair aAd Vice ChaH:-Gf--the-AgeRGy.-shall be elected at-the secoRd meeURg in April of each year by tRe votin9-ffiembers oR-aR-aflffilal-basls-tG-SePla-fGf-GRe year.. The Mayor shall serve as Chair and the Vice-Mayor as Vice Chair of the Agency'. In case of the Chair's absence, the Vice Chair shall assume the responsibilities of the Chair. If both are absent, the senior Agency member in years of service shall preside. The Chair shall run the meeting and preserve order. The Chair shall recognize all members who seek the floor under correct procedure. Members of the public shall be allowed to speak. Rule2 The Agency shall Ah:e approve the appointment of Executive Director whose presence is required at all Agency meetings. The Executive Director of the Agency shall be the Assistant City Manager and report directly to the City ManaQer and.-witA-tAe-at>proval-of t~e Agency. The Executive Director shall report dlreGtJy-to the Agency and make recommendations as to how CRA programs and funding should be executed. The Executive Director shall establish the staffing of the office. The Executive Directorst:lall GEHlifeG-and removed by a majority of-.tAe-voUR~emGe~Ae-AgeRGYshall be hired and removed by the City ManaQer with the concurrence of the Agency. Rule 3 The Secretary for tRe The City of Clerk A!}8rlGY shall provide minutes of the proceedings of each Agency meeting, and shall furnish copies of the minutes of each regularly scheduled meeting to the Chair and to each Agency member at least seven days prior to the next regular meeting. Such minutes shall stald confirmed at the regular meeting of the Agency without the reading thereof in open meeting unless some inaccuracy or error be pointed out by some member of the agency present, and t in such event, an appropriate correction shall be made. Upon request, the Executive Director WUI-GaUS8 the Secretary of the Agency will ask the City Clerk to provide any member with transcribed excerpts of tapes of Agency meetings. Rule 4 A copy of the minutes of each Agency meeting and of each resolution when passed shall be furnished by the ~tWe-rnf8GtGf the CM Clerk to the City Manager. Rule 5 The Agency shall meet immediatelHfiGl:-to-t~&-OOAduGt-oH:egutar daytime meeURgs-Gf the city commission aAd-may schedule-wofk.-sessloo&-as needed. The Agency shall conduct business on a regular basis as scheduled by. the Executive Director. These meetings shall normally be conducted in advance of the City Commission Work Session. Revised: 2/20/2002 Special Meetings of the Agency shall be called from time to time by the Chair, Executive Director, or any voting member, Not less than 48 hours publiC notice for any special meetings shall be provided. Except for items advertised for public hearings, items may be removed from the agenda and additional iter.1s may be added; this shall not apply to special meetings. The agenda may be re-ordered. Rule 6 The Agency shall appoint any committees or advisory boards as may be required for successful execution of Agency business. The Agency shall appoint an Aqency member to the Main Street Joint Venture for a term of two years. Rule 7 According to applicable provision of state law, no votinq member shall voluntarily or involuntarily acquire any personal interest, direct or indirect, in any community redevelopment project, in any property included or proposed to be included in any community redevelopment project, or in any contract or proposed contract in connection with any community redevelopment project. Should any member involuntarily acquire any interest in a community redevelopment project, that interest shall be immediately disclosed in writing. If any member presently owns or controls or owned or controlled within the preceding two years any interest, direct or indirect, any property included or planned to be included in a community redevelopment project, that interest shall immediately be disclosed in writing, and such disclosure shall be entered upon the minutes of the Agency. Any voting member disclosing such interest shall not participate in any decision of the Agency affecting such property. Rule 8 The City official whose regular attendance shall be required during the sittings of the Agency shall be the City Manager, the City Attorney and Executive Director or their substitutes; but all or any officers of the City shall be bound to attend any meetings upon request of any voting member of the Agency. Rule 9 No citizen, except those determined to be out of order and subject to removal by the Chief of Police or the Chiefs designee, shall be excluded from any meeting of the Agency whether it be regularly scheduled or specially called. Rule 10 Any voting member of the Agency who voted with the prevailing side may move a reconsideration of any action of the whole Agency provided that the motion be made at the same meeting at which the action was taken.A motion to reconsider shall be in order at any time (during the meeting at which the action was taken) except when a motion on some other subject is pending. No motion to reconsider shall be made more than once on any subject or matter at the same meeting. Rule 11 The Executive Director, City Attorney, City Manager or any member may agenda an item. Any citizen may request to be agendaed on the agenda, even though staff has assured petitioner that adverse action may result. The Chair cannot depart from the prescribed agenda but the Agency may do so by a majority vote or by consensus in response to a suggestion from the Chair. 2 Revised: 2/20/2002 Rule 12 These rules, or any of them, with the exception of provisions of state law, may be amended or temporarily suspended at any meeting of the Agency by a majority vote, These rules are for the efficient and orderly conduct of the business of the Agency only, and no violation of such rules shall invalidate any action of the Agency when approved by the majority votes. Rule 13 When a motion is made and seconded, it shall be state..Q by the Chair before any debate shall be in order. The person making the motion is entitled to the floor first for debate. No one is entitled to the floor a second time on the same motion as long as any other member who has not spoken on the issue desires the floor. Motions and any amendments can be withdrawn or modified by the maker at any time prior to the Chair stating the question on the motion; after that time, the permission of the Agency majority must be obtained. The Chair cannot close debate as long as any member who has not exhausted the right to debate desires the floor except by a majority lote. A tie vote shall constitute a continuance to the next regularly scheduled meeting Ru Ie 14 The Execut~FeGtor for the Agern;y City Clerk shall provide material to the press and to the public via a s~l-bGx-as part of the City Commission Work Session package in the City Clerk's office. Reports shall be made available in the Clerk's office for the public to check out and study at their leisure. Rule 15 All mail to the Agency arriving at City Hall and received pursuant to the Public Records law or in connection with the transaction of official business by the Agency shall be copied and provided to all members and to the press with the following exceptions: (a) Mail from governmental agencies, addressed to the Chair which is clearly intended for administrative action will be delivered to the Executive Director with informational copies to all Agency members as deemed necessary. (b) Anonymous letters will not be distributed, but shall be retained in compliance with Public Records law. (c) Only the agendas will be circulated. Items of considerable length (such as Petitions) will not be copied, but instead a memorandum will be distributed announcing the availability of the addressee to comply with the Public Records law. (d) The Executive Director will be responsible for seeing that the mail addressed to the Agency members is properly answered or placed on the agenda. Rule 16 As used in these rules, "majority vote" means the concurring vote of a majority of the voting membership of the Agency. Rule 17 Except as provided herein, or as may be required by Florida lawor the City Chafter, the rules of the Agency for the conduct of its business shall be as provided in the most recent edition of Robert's Rules of Order. 3 e-r:;; '6'Z~'.I1 ~ ~i ___ ~ ~=- ~ ~If.4TEl,\~ Community Redevelopment Agency Agenda Cover Memorandum Final Agenda Item # ~ J2 A- If_ Mecti ng Date: Mar. 4.2002 SUBJECT/RECOMMEN DATION: Approve the Development Agreement between the Community Redevelopment Agency of the City of Clearwater and The Balk Company, Inc. for a residential townhome development proposal fronting on Cleveland Street, [8J and that the appropriate officials be authorized to execute same, SUMMARY: · In December of 1999, the CRA issued the Request for Proposal for the development of an approximately 5- acre site fronting on Cleveland Street, commonly known as the Dimmitt property. · As a result of that process, the CRA selected The Balk Company, Inc., for the purpose of negotiation for the redevelopment of the site in conjunction with the City's development of the proposed City lake and adjoining public park. · The Balk Company proposes to build 100 residential townhomes, a swimming pool, and a community facility. · The development agreement between the CRA and The Balk Company defines the terms of land acquisition, timing of development, environmental responsibilities, development incentives and scope of the proposed development. · The Balk Company anticipates purchasing the property in three stages at a rate of $7.75 per square foot. · The total land cost is $1,823,560 based on 235,298 square feet (5.4 acres mol); Stage 1 is 37,117 square feet or $287,657, Stage 2 is 120,740 square feet or $935,735 and Stage 3 is 77,441 square feet or $600,168. · The City has taken the necessary steps to declare surplus and sell to the CRA the property necessary for the project. TheCRA will purchase the Stage III property and the portion of the Stage II property from the City as needed for closing with the Balk Company. , · The CRA and Brownfields Program agree to pay certain development related fees, estimated to be $386,771, on behalf of the project. Those fees include impact fees, permit fees, utility connections fees and stormwater "buy-in". The fees will be paid as construction occurs. NA . '7t\-'T ~S Originating Dept: () i:::y Economic Developme!Y User Dept. () i~~ Economic Developm~ Attachments Development Agreement Costs $386,771 Reviewed by: 011. legal ~ Budget ';r4' "J Purchasing ~ - Risk Mgmt NA Info Tech Public Works DCMlACM Other Total Funding Source: C.lpilol IInl"o\ ClIICII' Current Fiscal Year Opcr,lUng OIlier x Brownfields & CRA Submitted by: -D .." ~ City Manager ~ ~~- o Printed on recycled paper o None Appropriation Code: lBB-0931'-592400-552-000 lB1-99972 Rev. 2/98 · The City agrees to reduce the Stormwater buy-in fee pursuant to City resolution No. 99-43 from $200,000 to $100,000. The remaining Stormwater buy-in fee of $100,000 will be paid by the CRA. The City has committed to certain remedial actions on the property pursuant to the Brownfields Site Rehabilitation Agreement entered into between the City and Florida Department of Environmental Protection. The total site cleanup to date is $834,447. This funding is provided by state and federal Brownfields program funding. Balk has agreed to pay $130,000 for soil remediation on the Stage II property and will be responsible for all backfill costs on the site. In addition the City will provide an estimated $101,300 to finish the soil remediation and provide water quality monitoring. · The CRA will have the responsibility to hold The Balk Company harmless on pre-existing environmental issues relating to existing site conditions except as provided in the agreement. · Additional construction costs if any, related to groundwater contamination will be borne by the eRA. · The total estimated construction value of the project at buildout is $16,425,000. A total of $224,808 of annual ad valorem and non ad valorem revenues are projected for this project at buildout. 2 2/20/02 AGREEl\'1ENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY (l\'1editerranean Village in the Park) This Agreement for Development and Disposition of Property ("Agreement") is made as of this 4th day of March, 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida created pursuant to Part III, Chapter 163, Florida Statutes ("Agency"), and THE BALK COMPANY, INC., a Florida Corporation ("Developer"). WIT N E SSE T H: WHEREAS, on December 6, 1999, pursuant to the Request for Proposals, dated October 22, 1999, the Community Redevelopment Agency of the City of Clearwater, Florida (the "Agency") tentatively accepted the proposal of Developer, dated November 22, 1999, in response thereto, subject to negotiation of a definitive agreement with Developer pertaining to and setting forth the terms and conditions for the development of a 100-unit residential townhouse development known as Mediterranean Village in the Park in the community redevelopment area of the City; WHEREAS, the Agency proceeded with the preparation of a development and disposition agreement to set forth the respective duties and responsibilities of the parties pertaining to the conveyance of the Site (as hereinafter defined), and the design, development, construction, completion, operation and maintenance of the Project (as hereinafter defined), and design, construction and installation of the Infrastructure Improvements (as hereinafter defined); WHEREAS, the Agency and Developer have entered into and concluded negotiations for said definitive development and disposition agreement, which negotiations have resulted in this Agreement; WHEREAS, due to certain tenns and conditions of this Agreement and in order to provide for the successful development of the Project, the Agency has entered into an interlocal agreement with the City of Clearwater, Florida ("City"), dated as of March7, 2002 ("Interlocal Agreement"), providing for the cooperation and assistance of the City and the Agency in MetJiterranean Village Project De\'elopmetrt Agreement 1 accomplishing the goals and objectives of this Agreement, including establishing certain duties. obligations, terms and conditions of the Agency and the City pertaining to the Project Site and the Infrastructure Improvements; WHEREAS. at a duly called public meeting on March 4 Jafmary 22, 2002. the Agency approved this Agreement and authorized and directed its execution by the appropriate officials of the Agency; WHEREAS, the Developer has approved this Agreement and has authorized and directed certain individuals to execute this Agreement on behalf of Developer; and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby agree as follows: ARTICLE 1. DEFINITIONS. 1.01. Definitions. The terms defined in this Article I shall have the following meanings, except as herein otherwise expressly provided: (1) "Act" means the Constitution of the State of Florida; Section 163.01, Florida Statutes, Part m, Chapter 163, Florida Statutes; Chapter 166. Florida Statutes, other applicable provisions of law, and ordinances and resolutions of the City and the Agency implementing them. (2) "Agency" means the Community Redevelopment Agency of the City, as created by Resolution No. 81-68 of the City, adopted by the City Commission on August 6, 1981, including any amendments thereto, and any successors or assigns thereto. (3) "Agreement" means this Agreement for Development and Disposition of Property, including any Exhibits, and any amendments hereto or thereto. (4) "Agreement Expiration Certificate" means the instrument executed by the parties hereto as provided in Section 17.19 certifying that all obligations of the parties hereto have been satisfied and this Agreement has expired in accordance with its terms, the form of which is attached hereto as Exhibit "G." (5) "Agreement Termination Certificate" means the instrument executed by the parties hereto as provided in Section 13.06 stating that this Agreement has been terminated prior to its Expiration Date as provided in Section 13.05, the form of which is attached hereto as Exhibit "H." (6) "Area" means the area located within the corporate limits of the City having conditions of slum and blight (as those conditions are defined in the Act) as found by the City Met/iterrarrean Village Project Development Agreemerrt 2 Commission in Resolution No. 81-67, adopted by the City Commission on August 6, 1981. (7) "Authorized Representative" means the person or persons designated and appointed from time to time as such by the Developer or the Agency, respectively, pursuant to Section 2.04. (8) "Building Permit" means, for all or any part of the Project to be constructed on the Site, any permit issued by the City authorizing, allowing and permitting the commencement, prosecution and completion of construction to the extent provided in said permit. (9) "City" means the City of Clearwater, Florida, a Florida municipal corporation, and any successors or assigns thereto. (10) "City Commission" means the governing body of the City, by whatever name known or however constituted from time to time. (11) "Closing Date" means the date on which title to the Stage I. Stage II or Stage III Property is conveyed by the Agency to the Developer in accordance with and as contemplated by the provisions of Article 7 hereof. (12) "Commencement Date" means the date of issuance of the first Building Permit for any part of the Project. (13) "Completion Date" means the date on which construction of any Stage of the Project is substantially complete as evidenced by a Completion Certificate. (14) "Contractor" means one or more individuals or firms constituting a general contractor or other type of construction contractor properly licensed by the State of Florida or other appropriate jurisdiction to the extent required by applicable law, authorized to perform construction contractor services in the State of Florida, registered with the City as required by applicable law, bonded and insured to the extent required by applicable law and this Agreement, including the Developer or any affiliates of the Developer. (15) "Construction Financing" means the funds provided by the Construction Lender to the Developer during the term of this Agreement to pay the cost of developing and constructing the Project, or any portion thereof, on the Project Site, including, but not limited to, acquisition of the Site, financing costs, "soft costs," overhead, and the design, construction and equipping of the Center Project. ' (16) "Construction Lender" means any person or persons providing the Construction Financing or any portion thereof. (17) "Developer" means THE BALK COMPANY, INC., a Florida Corporation, and Medilerraneall Village Project Developmetll Agreement 3 (18) "Effective Date" means the date determined in accordance with Section 17.20 when the Memorandum of Development Agreement is recorded and this Agreement becomes effective. any successors and assigns thereof, including any entir)', partnership, joint venture, or other person in which THE BALK COMPANY, INC" is a general partner or principal, but not including any entity, partnership, joint venture, or other person in which THE BALK COMPANY. INC.. is a general partner or principal which is not undertaking or participating in any development of the Project, or any part thereof, The Developer shall not mean a purchaser or lender of individual units within the Project. (19) "Exhibits" means those agreements, diagrams, drawings, specitications, instruments, forms of instruments. and other documents attached hereto and designated as exhibits to, and incorporated in and made a part of, this Agreement. (20) "Expiration Date" means the date on which this Agreement expires, as evidenced by the Agreement Expiration Certificate being recorded in the public records of Pinellas County. Florida, as provided in Section 17.19 hereof. (21) "Impact Fees" means those fees and charges levied and imposed by the City, Pinellas County and any other governmental entity on projects located in the Project Site for certain services impacted by development such as the Project. (22) "Infrastructure Improvements" means the improvements to be designed, constructed and installed by the Agency or caused to be designed. constructed and installed by the Agency in substantial accordance with the Infrastructure Improvements Plans and Specifications on the Project Site. (23) "Infrastructure Improvements Completion Date" means the date on which construction and installation of the Infrastructure Improvements are substantially complete as contemplated by this Agreement and as evidenced by the Infrastructure Improvements Completion Certificate. (24) "Infrastructure Improvements Completion Certificate" means the instrument executed by the Agency certifying that design, construction, installation and equipping of the Infrastructure Improvements are substantially complete and usable for the purposes contemplated by this Agreement and setting forth the Infrastructure Improvements Completion Date, the form of which is attached hereto as Exhibit "F." (25) "Infrastructure Improvements Plans and Specifications" means the plans and specifications pertaining to the Infrastructure Improvements, including the Infrastructure Schedule for commencing, continuing and completing such improvements. all as prepared. reviewed and approved as provided in Article 5 hereof. Mediterraneall Village Project Del'elopmenl Agreemefll 4 (26) "Infrastructure Schedule" means th~ schedule for commencing, continuing and completing the design, construction, and installation of the Infrastructure Improvements, as prepared, reviewed and agreed to as provided in Article 5. (27) "Interlocal Agreement" means the interlocal agreement between the City and the Agency, dated as of March 7 January 21, 2002, entered into pursuant to Sections 163.01 and 163.400, Florida Statutes. which establishes certain duties and responsibilities of each party thereto pertaining to the Project and the implementation of this Agreement. including, but not limited to, the Infrastructure Improvements and the Project Site. which agreement is further described in Section 2.05 hereof. (28) "Mediterranean Village Plans and Specifications" means the plans and specifications pertaining to the construction, of the Project, including the schedule for completing the Project, consisting of the plans and specifications for each Stage. (29) "Permits" means all zoning, variances, approvals and consents required to be granted, awarded, issued, or given by any governmental authority in order for construction of the Project, or any part thereof, to commence, continue, be completed or allow occupancy and use, but does not include the Building Permit. (30) "Stage" means Stage I, Stage II, or Stage ill of the Project, as the case may be. (31) "Stage I" means the initial Stage of the Project, which shall consist of 15 units, the community hall and swimming pool. (32) "Stage II" means the second Stage of the Project which consists of 49 units. (33) "Stage III" means the third Stage of the Project which consists of 36 units. (34) "Stage Property" means Stage I Property, Stage II Property, or Stage ill Property as the case may be. (35) "Stage I Property" means that portion of the Site described or depicted on Exhibit "A-!" upon which Stage I shall be constructed. (36) "Stage II Property" means that portion of the Site as described and depicted on Exhibit "A-2" upon which Stage II shall be constructed. (37) "Stage ill Property" means that portion of the Site as described and depicted on Exhibit" A-3" upon which Stage m shall be constructed. (38) "Plan" means the community redevelopment plan for the Area, including the Medilermnean Vii/age Project Development Agreement 5 Project Site, as adopted by the City Commission on August 17. 1995. by enactment of its Resolution No. 95-68, and including any amendments to the Plan. (39) "Project" means the 100 residential townhouse fee simple units together with a swimming pool and community hall to be located on the Site as contemplated by the Proposal and this Agreement and constructed substantially in accordance with the Mediterranean Village in the Park Plans and Specifications. consisting of Stage I. Stage II. and Stage III. (40) "Project Professionals" means any architects. attorneys. brokers. engineers, consultants, planners, construction managers or any other persons, or combination thereof, retained or employed by the Developer in connection with the planning, design, construction, permit applications, completion and opening of the Project, but does not include the Developer. (41) "Project Site" means the tract of land located in the Area on part of which the Infrastructure Improvements will be constructed and installed and that part of which is to be conveyed to the Developer constituting the Site on which the Project will be located, as more particularly described and depicted on Exhibit "A," including the public rights-of-way and any land to be dedicated to public use or across which there is a pennanem public access easement or easement in favor of the Developer. (42) "Proposal" means the proposal for redevelopment of the Project Site. dated November 22, 1999, submitted by the Developer to the Agency in response to the RFP. (43) "RFP" means the Request for Proposals initially published by the Agency on October 22, 1999, soliciting proposals from persons interested in redeveloping the Project Site in accordance with the Act and the Plan. (44) "Site" means that part of the Project Site which is conveyed to the Developer by the Agency pursuant to the terms of Article 7 hereof and on which the Mediterranean Village in the Park is to be located. (45) "Site Plan" means the depiction and description of the Project on the Project Site, the initial version of which is attached hereto as Exhibit "B." (46) "Tennination Date" means the date on which this Agreement is terminated by any party hereto as provided in Section 13.05, and as evidenced by the Agreement Termination Certificate. (47) "Unavoidable Delay" means those events constituting excuse from timely performance by a party hereto from any of its obligations hereunder, as such events are detined in and subject to the conditions described in Article 14 hereof. 1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and MetliUrra1lea1l Village Project Developme1lt Agreeme1lt 6 1.03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (200 I ), as amended from time to time. construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate. the singular shall include the plural as well as the singular number. and the word "person" shall include corporations and associations. including public bodies, as well as natural persons. "Herein." "hereby," "hereunder," "hereof." "hereinbefore, II "hereinafter" and other equivalent words refer to this Agreement and not solely to the particular portion thereof in which any such word is used. ARTICLE 2. PURPOSE; PROPOSAL. 2.01. Intent; Purpose of Agreement. (a) The purpose of this Agreement is to further the implementation of the Plan by providing for the planning, construction and installation of the Infrastructure Improvements, the conveyance of the Site to the Developer and the development and construction of the Project thereon in accordance with the Project Plans and Specifications, all to enhance the quality of life, increase employment and improve the aesthetic and useful enjoyment of the Area through the eradication of conditions of blight, all in accordance with and in furtherance of the Plan and as authorized by and in accordance with the Act. (b)(l) The Site, which may be conveyed to Developer in three (3) Stages and may be constructed in three (3) Stages, is to be redeveloped according to Project Plans and Specifications. (2) As provided in this Agreement, the Agency shall undertake certain public actions pursuant to the Act and as implementation of the Plan, including making the Project Site available for redevelopment, assistance in obtaining such approvals by governmental authorities as are necessary for development of the Project, and the construction and installation of the Infrastructure Improvements. (c) As provided in this Agreement, the Developer shall carry out the redevelopment of the Site by purchasing the Site from the Agency, obtaining approvals by governmental authorities necessary for development of the Project, constructing various private improvements on the Site, and causing the Project to be developed. 2.02. Developer's Proposal. (a) The Proposal for the redevelopment of the Project Site, specifically including the acquIsItion of the Site by the Developer from the Agency and the design, construction, equipping, completion and use of the Project, and each component thereof, is hereby found by the Agency and acknowledged by the Developer: (1) to be consistent with and in furtherance of Mediterranean Village Project Developmellt Agreement 7 the objectives of the Plan, (2) to conform to the provisions of the Act, (3) to be responsive to the RFP, (4) to be in the best interests of the citizens of the City. (5) to further the purposes and objectives of the Agency, and (6) to funher the public purpose of eradicating conditions of blight in the Area. The parties recognize and agree that during the process of review and approval provided for in the Agreement the design of the Project may be subject to change and modification as may be either agreed to by the parties or required as provided herein or by the appropriate regulatory authority, and should any changes be necessary or desirable the parties agree that they will act expeditiously and reasonably in reviewing and approving or disapproving any changes or modifications to the Project. (b) Based upon and as a result of the findings set forth in subsection (a) above, the Proposal, including such changes and revisions as are provided by this Agreement. is hereby affirmed by the Developer and approved and accepted by the Agency. (c) The parties hereto find that the terms and conditions set forth in this Agreement do not, individually or collectively, constitute a substantial deviation from the RFP or the Proposal. 2.03. Cooperation of the Parties. The panies hereto recognize that the successful development of the Project and each component thereof is dependent upon continued cooperation of the parties hereto, and each agrees that it shall act in a reasonable manner hereunder, provide the other party with complete and updated information from time to time, with respect to the conditions such party is responsible for satisfying hereunder and make its good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this Agreement are carried out to the full extent contemplated hereby and the Project is designed, constructed, equipped, completed and operated as provided herein. 2.04. Authorized Representative. (a) Each party shall designate an Authorized Representative to act on its behalf to the extent of the grant of any authority to such representative. \Vritten notice of the designation of such a representative (and any subsequent change in the Authorized Representative) shall be given by the designating party to the other party in writing in accordance with the procedure set forth in Section 17.03 hereof. (b) Except as otherwise expressly provided in this Agreement, whenever approval or action by the Developer or the Agency is required by this Agreement, such action or approval may, in the discretion of the party considering such approval or action, be taken or given by the Authorized Representative thereof. A party to this Agreement may rely upon the representation of the other party's Authorized Representative that such person has the requisite authority to give the approval or take the action being done by that Authorized Representative. A party may not later deny that its Authorized Representative had the authority represented to and relied upon by the other party or revoke or deny any action taken by such Authorized Representative which was Mediterranean Village Project Development Agreement 8 relied upon by the other party. (c) The Developer does hereby notify the Agency that its initial Authorized Representative for the Project is Bruce Balk. (d) The Agency does hereby notify the Developer that its initial Authorized Representative is the Executive Director of the Agency. 2.05. Interlocal Agreement. (a) As of the Effective Date, the Agency and the City have entered into the Interlocal Agreement, a true and correct copy of which has previously been provided to the Developer. The parties recognize and acknowledge that the City, as a general purpose unit of local goverrunent possessing certain sovereign and governmental powers, including the power to tax, may not contractually obligate itself to a private party now or in the future to exercise or not exercise those powers or subject the exercise of those powers to certain terms and conditions. The parties further recognize and acknowledge that Section 163.400, Florida Statutes, authorizes units of local government, such as the City and the Agency, to enter into agreements to carry out the powers granted by Part III, Chapter 163, Florida Statutes, and Section 163.01, Florida Statutes, authorizes units of government, such as the City and the Agency, to enter into agreements such as the Interlocal Agreement whereby the powers and duties and obligations of one unit of government may be exercised by another or one unit of government may obligate itself to the other to undertake or not undertake certain actions. (b) The parties acknowledge that in the Interlocal Agreement the City has agreed with the Agency to take certain actions or to refrain from taking certain actions which the Developer has represented to the Agency are critical to the successful development of the Project as contemplated by this Agreement, specifically including the design, construction, installation and completion of the Infrastructure Improvements. . (c)(1) Based on the Developer's representation described in subsection (b), the Agency agrees to take such actions as may be necessary from time to time to implement, commence and complete the actions required to be taken by the City pursuant to the Interlocal Agreement and, further agrees, that in the event the Agency fails to do so, the Developer may seek an appropriate order, ruling, judgment or other directive to the Agency from a court of competent jurisdiction to enforce this obligation of the Agency to cause the City to do or not to do certain things under the Interlocal Agreement, provided that nothing in this subsection (c) is intended or shall be deemed to give the Developer any right to recover damages in any action brought by the Developer contemplated by this subsection (c). Nothing in this subsection (c) is intended to deprive the Developer of any rights, remedies or actions it may take pursuant to sections 13.02 or 13.05 hereof. (2) The Agency covenants and agrees with the Developer that in any legal proceeding Mediterraneall Village Project Developmellt Agreeme"t 9 regarding the Project it will not assert or agree that the Interlocal Agreement is void or invalid, in whole or in part. (d) The Agency covenants and agrees with the Developer that for so long as this Agreement is in effect it will take such actions as are necessary to maintain the Interlocal Agreement in full force and effect and will not take any action or fail to take any action that will result in the termination of the Interlocal Agreement before it is scheduled to expire by its own tenns or will result in changes to the Interlocal Agreement which would have the effect of adversely affecting the rights and obligations of any party to this Agreement. (e) Nothing in this Agreement, specifically including this Section 2.05 expressly or implied, is intended to or shall be construed to confer upon any person, finn or corporation other than the parties hereto, any right, remedy, or claim, legal or equitable, under or by reason of this Agreement or any provision hereof. It is the intent. of the parties hereto that this Agreement and all its provisions are intended to be and are for the sole and exclusive benefit of the parties hereto. (f) The Agency shall provide to the Developer any proposed amendments to the Interlocal Agreement at least thirty (30) days before such amendments will be considered by the governing body of the Agency. ARTICLE 3. LAND USE REGULATION. 3.01., Zoning. On the Effective Date, the zoning classification for the Project Site is Downtown, abbreviated as "0." The parties recognize and acknowledge that the zoning classification of the Project Site as of the Effective Date does permit development of the Project on the Site. The parties further recognize and acknowledge that the City has in the Interlocal Agreement agreed not to rezone the Site so as to prevent subsequent development of Stage I, Stage il, or Stage III to the extent and for the uses currently contemplated. 3.02. Development of Regional Impact. The parties hereto acknowledge and agree that the Project as contemplated by the Proposal and this Agreement was not and is not as of the Effective Date a "development of regional impact" within the meaning of Section 380.06, Florida Statutes. 3.03. Permits. (a) The Developer shall prepare and submit to the appropriate governmental authorities, including the City, the applications for each and every Building Permit and any and all necessary Permits for the Project, and shall bear all costs of preparing such applications, , Medilerranecul Village Project Development Agreement 10 applying for and obtaining such permits (excluding permit and review costs which shall be payable by the Agency as hereinafter provided}. (b) The Agency shall cooperate with the Developer in obtaining all necessary Permits and the Building Permit required for the construction and completion of the Project. (c) The Agency shall prepare and submit, or pursuant to the Interlocal Agreement cause the City to prepare and submit, to the appropriate governmental authorities. including the City, the applications for all necessary Permits for the Infrastructure Improvements, and shall bear all costs of preparing such applications, applying for and obtaining such permits and pay any and all applicable permit, review, application, inspection, regulatory and Impact Fees or charges pertaining to the Infrastructure Improvements. (d) The Agency's duties, obligations, or responsibilities under any section of this Agreement, specifically including but not limited to this Section 3.03 do not affect the Agency's or the City's right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laws. ordinances, codes or other building or project regulation. (e) Notwithstanding any other provisions of this Agreement, any required permitting, licensing or other regulatory approvals by the Agency or the City shall be subject to the established procedures and requirements of the Agency or the City with respect to review and permitting of a project of a similar or comparable nature, size and scope. In no event shall the Agency or the City, due to any provision of this Agreement, be obligated to take any action concerning regulatory approvals except through its established processes and in accordance with applicable provisions of law. 3.04. Concurrency. (a) The parties hereto recognize and acknowledge that Florida law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, collectively the "Growth Management Act") impose restrictions on development if adequate public improvements are not available concurrently with that development to absorb and handle the demand on public services caused by that development. The City has created and implemented a system for monitoring the effects of development on public services within the City. The Developer recognizes and acknowledges it must satisfy the concurrency requirements of Florida law as applied to the Project. Specifically, the Developer covenants and agrees to comply with the City's land development code, including providing to the City any and all data and analysis that shows the Project will be consistent with the goals, objectives and policies of the comprehensive plan for the City, adopted by the City and in effect on the Effective Date, and the Developer further covenants and agrees to comply with concurrency certification provisions of the City's land development code. MediJerranean Village Project Deve/opmmt Agreement II (b) The Agency represents and warrants and the Developer acknowledges that as of the Effective Date the Project as contemplated by this Agreement does not require any reservation of capacity or to seek any approvals as a result of the concurrency requirements described in subsection (a). If legally obligated in the future to comply with such requirements, the Developer agrees to seek issuance of a concurrency compliance certificate or other similar document by whatever name known and a reservation of services capacity under the City I S concurrency management system, and does further agree to maintain such certiticate and reservation. The Developer covenants and agrees with the Agency to not undertake any action or fail to take any action which would cause the City to revoke or invalidate the concurrency compliance certificate or the reservation of services capacity. 3.05. Not a Development Order or Permit. The parties do hereby acknowledge, agree and represent that this Agreement is not intended to be and should not be construed or deemed to be a "development order" or "development permit" within the meaning of those terms in Section 163.3164, Florida Statutes. ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS. 4.01. Site Plan. (a) The Developer has prepared a preliminary Site Plan, a copy of which is attached hereto as Exhibit "B," that contemplates development of the Project consistent with the Proposal and the current zoning classification for the Site. The Developer agrees that during the term of this Agreement any material changes to the preliminary Site Plan or any subsequent versions of the Site Plan will be submitted to the Agency for approval. The Agency shall not unreasonably withhold, delay or deny its consent to changes which are consistent with the current proposal. (b) The Site Plan approved by the Agency shall be the basis for and incorporated into the Project Plans and Specifications. 4.02. Preparation of Proiect Plans and Specitications. (a) The Developer shall prepare the Project Plans and Specifications in sufficient detail and description of the Project, and each Stage thereof, both narratively and graphically, to allow the Agency the opportUnity to determine if those plans and specifications are consistent with the Proposal, the Site Plan and the Plan. (b)(I) The Developer is responsible for the cost of preparing, submitting and obtaining approval of the Project Plans and Specifications (2) The Developer has retained and shall retain the Project Professionals to prepare the Project Plans and Specifications, and shall notify the Agency of the names of such Project Professionals and any subsequent changes thereto or additional Project Professionals retained Mediterralleall Village Project Developme1lt Agreement 12 with respect to the Project. The Developer shall cause the Project Professionals to prepare the Project Plans and Specifications. (c)(l) The Agency does hereby consent to the preparation of the Project Plans and Specifications, and any revisions thereto, by the Project Professionals, and the Agency will not withhold approval of the Project Plans and Specifications because they were prepared by the Project Professionals. The Agency hereby acknowledges and agrees that the selection of the Project Professionals is the sole responsibility of, and within the discretion of, the Developer, and the Agency will not participate, and have not previously participated, in such selection by the Developer. (2) The panies hereto mutually acknowledge and agree the Project Professionals are not, individually or collectively, agents or representatives, either expressed or implied. of the City or the Agency. (d) The Developer shall file the Project Plans and Specifications with the Agency for each Stage. The Project Plans and Specifications for each Stage shall be filed by the Developer with the Agency no later than ten (10) business days prior to the Closing Date. (e) The Project Plans and Specifications contemplated by this subsection (d) shall be sufficient for a determination by the City required by the ordinances and regulations of the City. 4.03. Coordination with City Review. The Developer has represented to the Agency and the Agency acknowledges the need to expedite the process for review of the Project Plans and Specifications and the issuance of any Building Permits and Permits. The Agency agrees to use its best efforts to coordinate and expedite its review of the Project Plans and Specifications with any review or approvals by the City or other governmental entities. 4.04. Agency Review of Proiect Plans and Specifications. (a) During the term of this Agreement, Agency review and approval of the Project Plans and Specifications is a prerequisite for issuance of the initial Building Permit for construction of the Project, or any part thereof. (b) Upon the Developer submitting the Project Plans and Specifications, or any part thereof (including the plans and specifications for any Stage), to the Agency for review, the Agency agrees to diligently proceed with and complete its review of the Project Plans and Specifications and respond to the Developer as soon as reasonably possible after receipt thereof, but in no event later than ten (10) business days after receipt of such Project Plans and Specifications, and advise the Developer in writing of the Agency's reasonable objections thereto or that the Project Plans and Specifications have been approved as submitted. (c) If the Agency gives written notice of specific objections to or deficiencies in the MediJerraneall Village Project Development Agreement 13 Project Plans and Specifications as provided in subsection tb), then the Agency and the Developer shall expeditiously, diligently and reasonably negotiate to resolve such objections. (d) If the Project Plans and Specifications submitted to the Agency by the Developer substantially comply with this Agreement, including being substantially in accordance with the Site Plan, and further the purposes of the Plan, the Agency shall approve the Project Plans and Specifications as submitted, and shall notify the City and other pertinent governmental entities of such approval and recommend the City and such other pertinent governmental entities give such approvals and issue such permits or licenses as arc necessary for development of the Project (or the Stage included in the approved Project Plans and Specifications). (e) If the Developer does not dispute the objections to any proposed Project Plans and Specifications contained in any notice from the Agency, it shall submit revised Project Plans and Specifications satisfying such objections. Any changes in the Project Plans and Specifications made by the Developer in respunse to such a notice shall be made without charge to the Agency. (t) The parties acknowledge and agree that the review and approval of the Project Plans and Specifications with respect to Stage I shall be completed before the Closing Date, and that included in such approval will be a mutually agreed upon development schedule, including significant construction milestones for the Project (or a Stage thereot) and the Infrastructure Improvements . ARTICLE 5. INFRASTRUCTURE ~IPROVEMENTS. 5.01. Infrastructure Improvements. (a) The Agency agrees to or cause other(s) to plan, construct, install, equip and complete the Infrastructure Improvements so that the Infrastructure Improvements are substantially complete in accordance with the Infrastructure Improvements Plans and Specifications no later than the Infrastructure Improvements Completion Date as shown on Exhibit D, Infrastructure Improvements Schedule. The Agency agrees to coordinate the planning, design and construction and installation of the Infrastructure Improvements with the Project design, construction, equipping and completion as provided in the Infrastructure Schedule. (b) The parties recognize and acknowledge that in the Interlocal Agreement the City has agreed to design, construct and install the Infrastructure Improvements for the Agency as provided in that agreement. The Developer acknowledges and agrees that the design, construction and installation of the Infrastructure Improvements may be undertaken by the City and that the provisions of the Interlocal Agreement pertaining to such actions by the City satisfy the requirements of this Agreement. 5.02. Infrastructure Improvements Plans and Specifications. MediJerranean Village Project Development Agreement 14 (a) The Agency shall be responsible for the preparation of the Infrastructure Improvements Plans and Specitications. 5.03. Infrastructure Improvements Financing. (a) In no event shall the obligations, either express or implied, of the Agency under the provisions of this Agreement to pay the costs of the Infrastructure Improvements be or constitute a general obligation or indebtedness of the City or the Agency, or both, or a pledge of the ad valorem taxing power of the City or the Agency, or both, within the meaning of the Constitution of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds. The Developer, any Construction Lender or any Contractor, subcontractor, materialman, or supplier for any part of the Project, shall not have the right to compel the exercise of the ad valorem taxing power of the Agency or the City or any other governmental entity on any real or personal propeny or taxation in any form to pay the Agency's obligations or undertakings hereunder. 5.04. Construction of the Infrastructure Improvements. (a) Following approval of the Infrastructure Improvements Plans and Specifications and in coordination with the construction of the Project. but in no event earlier than the Commencement Date, as provided in the Interlocal Agreement, the Agency will cause the City to commence construction of the Infrastructure Improvements and cause it to proceed to substantial completion in accordance with the Infrastructure Schedule except as otherwise agreed, the Infrastructure Improvements shall be at no expense to the Developer. It is the intent of the parties to this Agreement that construction of the Infrastructure Improvements will be substantially complete and the Infrastructure Improvements will be completed by the dates agreed to by the parties in the Infrastructure Schedule. (b) The Infrastructure Improvements and the Project shall be undertaken and completed at such times and in such a manner as may be mutually agreed upon by the Agency and the Developer taking into account the schedule for specific aspects of the construction of such improvements. 5.05. Infrastructure Improvements Completion Certificate. (a) Upon the completion of the construction, installation and equipping of the Infrastructure Improvements in accordance with the provisions of this Article 5 and the Infrastructure Improvements Plans and Specifications such that the improvements are substantially complete, the Agency shall prepare and execute the Infrastructure Improvements Completion Certificate (Exhibit F), and deliver it to the Developer. Upon receipt of the certificate, the Developer shall detennine if construction, installation and equipping of the Infrastructure Improvements has been so completed, and, if so, shall execute the certificate and Mediterranean Village Project Development Agreement 15 return it to the Agency. (b) The Infrastructure Improvements Completion Certiticate shall be in a fonn sufticient to be recorded in the public records of Pinellas County, Florida. After execution thereof by the parties hereto, it shall be returned to the Agency, which shall be responsible for having the certificate promptly recorded in the public records of Pinellas County, Florida. The Agency shall be responsible for the cost of such recording. 5.06. Infrastructure Improvements Coordination. (a) It is the intent and desire of the parties hereto that the design and construction of each part of the Infrastructure Improvements and the Project be coordinated with other parts of the Project and the design, construction, installation and equipping of the Infrastructure Improvements and the Project so as to minimize conflicts, improve efficiency and avoid delays in completion of the Project and each part thereof. (b)(l) The Agency shall designate a person to coordinate the planning, construction, installation, equipping and completion of the Infrastructure Improvements with the construction of the Project. (2) The Developer shall designate a person to coordinate the planning, construction, installation, equipping and completion of the Project with the construction of the Infrastructure Improvements. ARTICLE 6. PROJECT FINANCING. 6.01. Construction Financing. (a) If the Developer elects to obtain Construction Financing, the Developer shall use its reasonable efforts to obtain from a Construction Lender a commitment to provide the Construction Financing as soon as is reasonably possible. Upon obtaining such Construction Financing, the Developer shall notify the Agency that it has obtained said financing and provide to the Agency the name and address of the Construction Lender. (b) The Agency shall have an affirmative right, but not an obligation, to cure any default by the Developer under the Construction Financing, which right shall be expressly provided for in the financing documents providing for the ConstriJction Financing. The parties recognize and acknowledge that the Agency's right under this paragraph (2) is not intended to be superior or ahead of any lien or right of the Construction Lender to enforce its rights and remedies under the financing documents pertaining to the Construction Financing. (c) The Developer covenants and agrees with the Agency that the proceeds of the Construction Financing shall be solely for the purpose of paying costs and fees related to the Mediterranean Vii/age. Project Development Agreement 16 development and construction of the Project and that such proceeds. together with its own funds or other funds available to it, shall be sur"ticiem to pay the costs of acquiring the Site and the development, construction and completion of the Project. 6.02. Notice of Developer's Default. (a) The Developer covenants and agrees with the Agency that any Construction Financing documents shall include provisions that if the Construction Lender declares the Developer to be in denlUlt or if an event of default has occurred under the financing documents for the Construction Financing, such Construction Lender shall promptly give written notice thereof to the Agency by certitied mail, return receipt requested at its respective address last given to the Construction Lender by the Developer prior to such notice; provided, however, the failure of the Developer to provide the Agency's address to the Construction Lender or for the Construction Lender to receive any such notice shall not constitute a waiver by or preclude or delay the Agency from proceeding with or enforcing any right or remedy available to it under this Agreement, nor shall it constitute a waiver by or preclude or delay the Construction Lender from enforcing any right or remedy available to the Construction Lender. The notice from the Construction Lender to the Agency shall state the basis of the default by the Developer, shall identify the particular provision of the financing documents under which the Developer is in default and shall include copies of any pleadings in any proceeding instituted by the Construction Lender incident thereto. (b) Any notice from the Agency to the Developer specifying an event of default by the Developer under Section 13.01 hereof shall, at the same time it is provided to the Developer, be mailed by the Agency to any Construction Lender by certified mail, return receipt requested, at its address last given to the Agency by the Developer prior to such notice; provided, however, the failure of the Agency to mail any such notice or the Construction Lender to receive any such notice shall not constitute a material breach or default of this Agreement by the Agency, nor shall it constitute a waiver by or preclude or delay the Agency from proceeding with or enforcing any right or remedy available to it under this Agreement. The notice from the Agency to the Construction Lender shall state the basis of the default, the particular provision of this Agreement under which the Developer is in default and shall include copies of any pleadings in any proceedings instituted by the Agency incident thereto. 6.03. Cure of Developer's Default by Lender. (a)(1) Following the Agency providing the notice under Subsection 6.02(b) hereof, the Construction Lender may, at its election, cure or remedy the default by the Developer described in such notice. If the Construction Lender elects to cure such default, it shall give notice of such election to the Agency and the Developer within sixty (60) days after the Agency issued its notice of default by the Developer as provided in Section 13.01 hereof. (2) So long as the Construction Lender proceeds to cure or remedy the Developer's Mediterranean Village Project Development Agreemelll 17 default of this Agreement, the Agency agrees not to exercise any right or remedy available to it resulting from the Developer's default described in the notice and which the Construction Lender has elected to cure for such period of time as shall be reasonably necessary for the Construction Lender to cure or remedy such default, including any time reasonably necessary for the Construction Lender to obtain possession of the Site, if possession is necessary to enable the Construction Lender to cure or remedy such default. (b) If a default by the Developer under this Agreement is timely cured or remedied by the Construction Lender pursuant to this Section 6.03. then the Agency shall not have any rights or remedies against the Developer with regard [0 such default, except in such an event, the Developer shall be obligated to pay and the Agency may recover from the Dt..:veloper any reasonable fees, costs or other expenses (including reasonable attorneys fees) incurred by the Agency as a result of said det:lult by the Developer, plus interest on such fees. costs or other expenses from the date they were incurred at an annual percentage rate of twel ve percent (12 %). (c) If the Construction Lender elects to cure or remedy the Developer's default hereunder as provided in subsection (a) hereof, it shall then be subject to and bound by the provisions of this Agreement and the actions required to be taken to remedy or cure said default that, but for the default by the Developer, would have been applicable to the Developer. (d) If, as a result of the Construction Lender curing or remedying a default by the Developer under this Agreement, the Construction Lender completes the construction of that part of the Project for which the default occurred upon receipt of a written request by the Construction Lender to the Agency for a construction completion certificate, the Agency shall execute and deliver to the Construction Lender a construction completion certificate for that part of the Project, in the same manner and procedure as if the Developer has requested such a certificate under Section 8.05 hereof. (e) Subsequent to a default under this Agreement by the Developer, if the Construction Lender does not timely elect to cure such default as provided in subsection (a) hereof, or makes such election and proceeds to construct and complete the Project, but fails to complete such construction by the Completion Date for that Stage (subject to extensions for Unavoidable Delays) and such failure shall not have been cured within sixty (60) days (or such longer period as may be reasonably necessary and mutually agreed upon by the Agency and the Construction Lender), then the Agency may proceed with any remedies available to it under Section 13.01 hereof. 6.04. Construction Lender Not Obligated to Construct. (a) If the Construction Lender elects not to cure a default by the Developer hereunder as provided in Subsection 6.04(a) hereof, the Construction Lender and any other holder who obtains title to or possession of the Site, or any part thereof, as a result of foreclosure proceedings or any other action in lieu thereof, including G I) any other party who thereafter Mediterrallew, Vii/age Project Development Agreement 18 6.06. Agencv Cures Developer's Default. If prior to the issuance of the Project Completion Certificate for Stage I, the Developer defaults under this Agreement or under, and to the holder of, any mortgage or other instrument creating an encumbrance or lien upon the Site, or any part thereof, the Agency may cure such default or breach. In such an event, the Agency, as the case may be, shall be entitled, in addition to and without limitation upon any other rights or remedies or payment of any other amounts to which it shall be entitled by this Agreement, operation of law, or otherwise, to reimbursement from the Developer for all costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by the Agency in curing such default, together with interest thereon at a per annum rate equal to twelve percent (12 % ). Until such amount is paid, the Agency shall have a lien on the Site for the amount of such reimbursement~ provided, that any such lien shall be subject and subordinate to the lien of any then existing mortgage of the Site in favor of the Construction Lender. obtains title to the Site or such part from and through such holder or, (ii) any other purchaser at a foreclosure sale, or (iii) any other grantee und~r a deed in lieu of foreclosure, and any of such parties' successors and assigns, shall not be obligated by this Agreement to construct or complete the Project, or any Stage, or to guarantee such construction or completion or to perform any of the Developer's other agreements, obligations or covenants under this. Agreement. (b) Nothing in this Section 6.04 or any other provisions of this Agreement shall be deemed or construed to permit or authorize any Construction Lender or any other party obtaining title to or possession of the Site, or any part thereof, to devote the Site, or any part thereof, to any use, or to construct any improvements thereon, other than the uses and improvements provided in the Plan and in the Project Plans and Specifications. ARTICLE 7. SITE CONVEYANCE. 7.01. Findings: Representations. (a) The Agency and the City own certain real property located in the corporate limits of the City and in the Area, the legal description of which is set forth as Exhibit "A" attached hereto and made a part hereof. (the "Site"). (b) Pursuant to the Interlocal Agreement, the City has agreed to convey certain property withinthe Site to Agency (Exhibit" A-3"). (c) Developer desires to purchase the Site from Agency. (d) Agency desires to sell and convey the Site to Developer. 7.02. Agreement to Sell and Purchase. The Agency hereby agrees to sell and convey the Site to Developer and Developer hereby Mediterraneall Village IJroject Development Agreement 19 agrees to purchase the Site from Agency, upon the terms and conditions hereinafter in this Article 7. 7.03. Purchase Price. The purchase price of the Stage I Property is TWO HUNDRED EIGHTY SEVEN THOUSAND FIVE HUNDRED FORTY THREE DOLLARS ($287,543.00), more or less. The purchase price of the Stage II Property is NINE HUNDRED THIRTY FIVE THOUSAND SEVEN HUNDERED THIRTY FOUR DOLLARS ($935, 734.00), more or less. The purchase price of the Stage III Property is SIX HUNDRED THOUSAND SIXTY SEVEN DOLLARS ($600,067.00), more or less. The Purchase Price or each property is $7.75 per square foot with the square footage to be determined by a survey. The amount to be paid by the Developer to the Agency in consideration of the conveyance of the Property to the Developer is hereinafter referred to as the "Purchase Price." 7 .04. Site Evaluation. (a) From and after the Effective Date hereof during the term of this Agreement, the Developer and its agents and representatives shall be entitled to enter upon the Site for inspection, soil tests, examination, and such other matters and investigations as Developer deems necessary and appropriate. In this regard, no such examination will be deemed to constitute a waiver or a relinquishment on the part of Developer of its right to rely on the covenants, representations, warranties and agreements made by Agency or upon the agreements provided to Developer by Agency. However, the aforementioned notwithstanding, Developer has exclusive responsibility for determining the geotechnical status and sufficiency of the site. Developer will restore any disturbance to the Site caused by its acts and will hold Agency harmless and indemnify Agency from and against any and all damages and liability occasioned by any claim asserted against Agency caused by such examination. (b) Notwithstanding any other provision of this Agreement, Developer shall have the absolute right until April March 28, 2002, (which the parties acknowledge to be the anticipated Closing Date) for the Stage I Property to review and examine the Site and the items provided from Agency (herein referred to as the "Evaluation Period"). At any time prior to the expiration of the Evaluation Period, Developer may terminate this Agreement if, in its sole discretion, Developer determines that the Site or the contemplated development or construction thereon is not economically or otherwise acceptable to Developer notwithstanding anything contained in Paragraph 13.05 of this Agreement to the contrary. Developer may terminate this Agreement as provided in Section 13.05 hereof. 7.05. Title. (a) Five (5) days before the Closing Date for each Stage, the Agency shall furnish to Ml!diterra1leall Village Project Developme1lt Agreeme1lt 20 Developer, at Agency's expense, a commitment for the issuance of an owner's policy of title insurance for the Stage Property (including any easements to be granted by Agency to Developer hereunder) by a title insurance company acceptable to Developer in the standard form adopted by the American Land Title Association. This commitment shall be in the amount of the total Purchase Price of the Stage Property, shall show in Agency a good and marketable title in fee simple, free and clear of all liens and encumbrances without exception other than those permitted under the provisions of Section 7.14 hereof (the "Permitted Exceptions") in a form reasonably acceptable to Developer and shall be refereed to hereinafter as the "Title Commitment". Agency shall cause the standard exceptions to be deleted. (b) If the Title Commitment, any update thereof or subsequent title commitment or the survey delivered to Developer in connection with the Stage Property shows that the title is defective or unmarketable or that any part of the Stage Property is subject to liens, restrictions, easements, encroachments or encumbrances of any nature whatsoever other than those permitted under the provisions of Section 7 .14 hereof, Developer shall give Agency a reasonable time (not to exceed sixty (60) days after Developer has given written notice to Agency of any unacceptable conditions of title) within which to remedy or remove any such unacceptable conditions of title. Failure of Agency to remedy or remove any such unacceptable condition of title shall constitute a grounds for tern1ination as provided in Section 13.05, unless Developer gives Agency its written waiver of such unacceptable condition of title. (c) Within thirty (30) days after closing, Agency shall furnish to Developer, at Agency's expense, a standard ALTA Marketability Form B-1970 (Rev. 10/17170 and Rev. 10/17/84) owner's policy of title insurance based on the Title Commitment. Such policy will be issued by the title company that issued the Title Commitment, will be in the amount of the Purchase Price and will insure Developer's fee simple title or easement interests, as the case may be, to the Site subject to no exceptions other than the exceptions permitted pursuant to Section 7.14. Agency shall pay the premium charged for the issuance of any owner's policy of title insurance to the extent of the Purchase Price showing Developer as the fee simple owner or easement holder, as the case may be, of the Stage Property. 7.06. Survey. (a) The Agency, at Agency's sole cost and expense, shall employ a surveyor licensed by the State of Florida to prepare a current survey of the Stage Property, which survey shall be delivered to Developer five days before the closing date for each stage. (b) The survey shall: (i) Be prepared in accordance with the minimum standards (including Surveyor's Certification) required in the State of Florida for removal of the survey exception from the owner's policy of title insurance issued for the Site. MediteTTallea1l Vii/age Project DevelopmeTll Agreeme1lt 21 (ii) Set forth an accurate metes and bounds description of the Site, the gross number of acres contained in the Site. (iii) Locate all existing easements and rights of way, whether recorded or visible (setting forth the book and page number of the recorded instruments creating the easement). (iv) Show any encroachments onto the Site from adjoining property and any encroachments from the Site onto adjoining property. (v) Show all existing improvements (such as buildings, power lines, fences, roads, driveways, railroads, underground pipelines, etc.) and all rivers, creeks drainage ditches or other water courses. (vi) Show all dedicated public streets providing access to the Site and whether such access is paved to the property line of the Site. (vii) Identify any t100d zones as defined on Federal Flood Insurance Rate Maps (F.I.R.M.) for Pinellas County, Florida that affect the Site. (viii) Show all applicable set back lines with reference to the source of the setbacks. (ix) Show all existing trees located upon the Stage Property. (The Developer agrees to pay the cost of any tree survey). (x) Be certified to the Developer. 7.07. Ri~hts and Duties of Agency. (a) Agency shall cooperate in good faith with Developer in Developer's evaluation of the Site and shall execute all documents or perform such other acts, reasonably necessary to enable Developer to satisfactorily complete its evaluation of the Site and shall provide to Developer and its consultants any information or documents reasonably required by Developer and in Agency's or its consultant's possession which would assist Developer in such evaluation and preparation. (b) Agency shall reaffirm in writing to Developer that the covenants, warranties and representations set forth herein are true and correct as of the Closing Date. 7.08. Rights and Duties of Developer. Developer agrees to timely commcncc and pursue its evaluation of the Site hereunder in good faith; provided, however, at any time, Developer may cease such evaluations and tenninate this Agreement as provided in Section 7.04(b). MediJerranean Vii/age Project Development Agreement 22 7.09. Agencv's Obligation to Convey. At such time as Agency has received payment in full of the Purchase Price, Agency shall immediately convey to Developer the Stage Property. 7.10. Conditions to Closing. (a) The obligation of Developer to purchase the Site is subject to the following unless waived by the Developer on or before the Closing Date: (1) The representations and warranties of Agency set forth herein being true on and as of the Closing Date with the same force and effect as if such representations and warranties were made on and as of the Closing Date; (2) The Developer has approved the Infrastructure Improvements Plans and Specifications, and the Infrastructure Schedule for the installation and completion of the Infrastructure Improvements. (3) The Project shall be in compliance with the zoning, land use and concurrency requirements for the Site. (4) Developer shall have received its Building Permit for the Stage I, as well as any other Permits required in connection with Stage I of the Project. (5) The Agency shall have either paid or shall reimburse the Developer for all required Sitt Plan review fees, Building Permit fees and Preliminary Plat review fee imposed by the City with respect to the Stage. (6) As a condition to closing on the Stage II Property only, the Agency shall have obtained from the Florida Department of Environmental Protection (the Department) and provided Developer a copy of a letter or other written documentation from the Department documenting that the environmental remediation work has been completed at the Site in compliance with all the requirements of the Brownfield Site Rehabilitation Agreement (BSRA) and the applicable rules of the Department for issuance of a Site Rehabilitation Completion Order, except for the requirement that the Agency comply with and continue implementing the plan for natural attenuation of the groundwater contamination, with monitoring (the Monitoring Only Plan), followed by the submittal and approval of a Site Rehabilitation Completion Report once all monitoring or other requirements of the MOP have been met. Developer and the City acknowledge, however, that if the monitoring under the Monitoring Only Plan fails to show that the groundwater has met cleanup target levels within five years after approval of the plan, the City may have an obligation under the BSRA to conduct further assessment and remediation at the Site, in order to obtain the Site Rehabilitation Completion Mediterranean Village Project Development Agreement 23 Order. (b) The obligation of the Agency to convey each Stage Property to the Developer is subject to the following unless waived by the Agency on or before the Closing Date: (1) The representations and warranties of the Developer sct forth in Section 11.01 being true on and as of the Closing Date with the same force and effect as if such representations and warranties were made on and as of the Closing Date; (2) 13.01. The Developer is not then in default of this Agreement as provided in Scction (3) The Agency shall have approved the Project Plans and Specifications. (4) The Developer shall have approvcd the Infrastructure Improvements Plans and Specifications and the Infrastructure Schedule. (5) The parties shall have agrced to the construction schedule and milestones for development of the Stages of the Project and the Infrastructure Improvements and arrangements for coordination of the construction thereof. (6) The Developer has paid $130,000 to the City as provided in paragraph 11.01(j). (7) Prior to closing on Stage II Property, Developer shall have binding contracts for sale on at least 50% of the Stage I units. (8) Prior to closing on Stage ill Property, Developer shall have binding contracts for sale on at least 50% of the Stage II units. 7.11. Closing. Provided all conditions to conveyance of the Stage I Property to the Developer have been satisfied, Developer shall purchase the Stage I Property on or before April 28, 2002, (herein referred to as the "Closing Date" on Stage I Property). Provided all conditions to conveyance of the Stage II Property to the Developer have been satisfied, Developer shall purchase the Stage II Property on or before April 28, 2003, (herein referred to as the "Closing Date" on Stage II Property). Provided all conditions to conveyance of the Stage III Property to the Developer have been satisfied, Developer shall purchase the Stage III Property on or before April 28, 2004 (herein referred to as the "Closing Date" on Stage III Property). The parties may mutually agree to change the Closing Dates. In the event Agency is delayed in fulfilling the closing conditions set forth in Section 7. lO(a) , Developer shall be entitled to an extension for the period of delay but not to exceed 60 days. Mediterrallean Village Project Development Agreement 24 7.12. Closinl! Procedure. (a) At closing, the Agency shall convey to Developer by special warranty deed, in the form attached hereto as Exhibit "C", title in fee simple of the Stage Property to Developer as provided on Exhibit~ "A-l \ "A-2".. and .. A-3", free and cleaf of any and all liens, encumbrances, conditions, easements. assessments, restrictions except those permitted in this Agreement and the Permitted Exceptions. (b) At closing, the Agency shall deliver an endofsement to the title insurance commitment required herein and such further instruments as may be required by Developer, Developer's counselor the title company to vest in Developer title of the Stage Property as provided herein, all at Agency's expense. (c) Developer shall pay the Purchase Price for the Stage Property to Agen.:y in immediately available funds acceptable to Agency. (d) Ad valorem real estate taxes and any personal property taxes shall be prorated as of the Closing Date, based on application of the preceding year's rates to the latest assessed valuation or statements issued to Agency for the current year's assessment, if available. (e) Agency shall pay all special assessments and taxes, interest and penalties levied against the Stage Property prior to the Closing Date. (f) Agency has terminated all original leases, if any, for the Site or any part thereof and all tenants will have vacated the Stage Property by the Closing Date. (g) Agency shall deliver to Developer all original documents pertaining to the Stage Property including licenses and permits, if any. (h) Agency shall pay for all documentary stamps and transfer taxes, if any, for the deed, and for the preparation, recording and documentary stamps for all closing documents, lien releases and title curative instruments, its own attorney's fees, the premiums for the owner's title insurance policy, and for recording the deed and all other closing costs and expenses. The Developer shall pay its own attorneys' fees. (i) As required by paragraph 7.10(a)(6) above, Agency shall provide written documentation from the Department that Agency has completed all the environmental remediation work at the Site required by the BSRA except with respect to groundwater contamination, which will be addressed by the Monitoring Only Plan. It is anticipated that the letter will require monitoring only and deed restrictions governing the use of ground water in the site described in Exhibit A and construction activities requiring the removal or penetration of the protective cover over any subsurface soil meeting alternative cleanup target levels rather than statewide default levels for any contaminant, in the area described in Exhibit K. Mediterranean Village Project Development Agreement 25 7.13. Possession. (a) Possession of the Stage Property shall pass to Developer upon completion of the Closing on the Stage. (b) Agency agrees to grant a license (Exhibit E) to Developer to place a temporary sales facility on the Stage I Property upon the effective date of this Agreement, provided, however, that Developer must meet all applicable Code requirements. ~ An!!ency agrees to grant the developer a ri!!ht of entrv to the Stage II propertv for the purpose of removal of peat and backfilling the propertv as provided in Exhibit M. 7.14. Condition of Title. Title to the Stage Property at the time of conveyance shall be free of all liens, restrictions, easements, encroachments and encumbrances of any nature whatsoever except the following (the "Permitted Exceptions"): (a) payable. Real estate taxes for 2001 and subsequent years that are a lien but not yet due and (b) Comprehensive land use planning, zoning and building ordinances, regulations and requirements adopted by governmental or municipal authority having jurisdiction. (c) It is anticipated that DEP will require a restrictive covenant prohibiting the use of ground water in the area described in Exhibit A and may at least temporarily require a restrictive covenant governing construction activities requiring the removal or penetration of the protective cover over subsurface soil in the area described in Exhibit K. These restrictive covenants_shall constitute a permitted exception. (d) Those additional exceptions as contained in the Title Commitment to be delivered by Agency to Developer at closing which Developer, in its sole and absolute discretion, has elected to accept. 7.15. Taxes and Assessments. Agency agrees to pay all taxes and assessments that become a lien on the Site prior to the Closing Date promptly when due. All special assessments applicable to any portion of the Site, delinquent taxes and delinquent installment of special assessments, together with any penalties and interest thereon, shall be paid by Agency on or before the Closing Date. 7.16. Covenants. Warranties and Representations. MediJemureall Village Project Developmerrt Agreement 26 Agency hereby covenants, warrants and represents to Developer that: (a) The title of Agency to the Stage Property will at time of closing be absolute, good and marketable and free and clear of all liens and encumbrances except for the Pem1itted Exceptions. (b) Agency has the full legal power to own and convey the Site as provided for herein, without any other consent or proceeding required from any other person, entity or organization. (c) There are no legal proceedings pending, threatened or contemplated against Agency or the City in any court, tribunal or administrative agency which affects the Site or which give or will give rise to any claims or liens against the Site or affect Agency's right to transfer the Site. (d) There are no rights of possession, use or otherwise, outstanding in third persons by reason of unrecorded leases, land contracts, sale contracts, options or other documents other than in favor of the Agency, other than leases disclosed to Developer and which have been tenninated and will be vacated prior to the Closing Date. (e) No work has been performed or is in progress on or at the Site and no materials have been furnished to Agency or the Site or any portion thereof which after closing could give rise to any mechanics I I materialmen, or other liens, and at the Closing Agency shall furnish to Developer an affidavit attesting to the absence of any such liens or rights to liens. (f) No assessment for public improvements or otherwise have been made against the Site which remain unpaid, including without limitation, any special assessments or those for construction of water, sewer, gas and electric lines, nor have any been proposed. (g) Agency has no information or knowledge of any change contemplated in the applicable laws, ordinances or restrictions, or any judicial or administrative action, or any action by adjacent land owners or natural or artificial conditions upon the Site which would prevent, limit, impede or make more costly the present or proposed use of the Site except as disclosed herein. (h) From and after the date hereof; Agency shall refrain from (1) making any material changes on or about the Site other than as required by this Agreement; (2) creating and incurring or permitting to exist any mortgage, lien, pledge or other encumbrance in any way affecting the Site; or (3) committing any waste or nuisance on the Site. (i) From and after the date hereof, and at any time prior to transfer of title to Developer, Agency shall not grant, sell or convey any interest in the Site, including easements or Mediterralleall Village Project Del'elopmeTll Agreement 27 U)(1) Compliance with Environmental Laws. The Agency acknowledges that the Developer is an innocent prospective purchaser who has neither caused nor contributed to any environmental contamination of the Site before its conveyance by the Agency to the Developer. Reflecting this acknowledgement. this Agreement sets forth special provisions for environmental indemnification of the Developer by the Agency in section 10.03 below. In addition, the Agency has disclosed the environmental condition of the Site, as assessed and reported by URS/Dames & Moore in the following reports: (a) Thomas Carberry, URS. Summary Report of Environmental Activities [for] Property B, 901-927 Cleveland Street, Clearwater, Florida (December 2000) (Job No. 38894-017-141; (b) Site Assessment and Remedial Action Plan prepared by URS Corporation and dated April 2001; (c) Summary Report of Supplemental Soil Delineation Activities prepared by URS and dated August 2001; and (d) Site Assessment Summary Letter Report (to David Gerard of DEP) dated November 16. 2001. \Vith respect to the Stage II Property, the Developer acknowledges receipt of the Phase I and Phase II Environmental Site Assessment (ESA) Report, Town Pond Project, Downtown Clearwater, Dimmitt Chevrolet Properties, Properties C, D, and E, completed by International Technology Corporation dated March 4, 1999. The Agency acquired the Site from the City, which shall remediate the soil contaminatioIl by excavating and removing the contaminated soil in accordance with the Brownfield Site Rehabilitation Agreement (BSRA) dated July 12, 2001, between the City and the Florida Depar~ment of Environmental Protection (the Department), the Interim Source Removal Plan prepared b)' VRS Corporation and dated November 2001, and the Focused Risk Assessment (Property B) prepared by Hazardous Substance & Waste Management Research, Inc., for URS and dated November 2001. At its own expense the City shall monitor the groundwater contamination and enter into a restrictive covenant restricting the use of groundwater in the Site described in Exhibit A in accordance with the BSRA and the Department's approval of the City's Monitoring Only Plan to be submitted in the revised Remedial Action Plan required by the BSRA. Subject to these disclosures, the Agency has: (i) materially complied with all applicable Environmental Laws and (ii) not received any notice of alleged outstanding violation of such laws, nor does the Agency have knowledge of any facts or circumstances that could constitute such a violation. Subject to the disclosure described above, to the best of the Agency's knowledge, there are no Hazardous Substances on, above, within, underneath or in groundwater underlying the Site which exceed applicable standards under any Environmental Laws. rights of way, to any person, corporation (public or private), governmental body or political subdivision without the written permission of Developer. (2) Definitions. For purposes of this Article 7, the terms "Hazardous Substances" and "Environmental Laws" shall have the following meanings: (i) "Hazardous Substances" means any substance or material: (a) identitied in Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 V.S.C. ~9601, as the same may be amended from time to time; or (b) determined to be toxic, a pollutant or contaminant, under Federal, state or local statute, law, ordinance, rule or regulation or judicial or administrative order or decision, as same may be amended from time to time, Mediterralleall Village Project Development Agreement 28 including but not limited to (i) hazardous wastes as identified pursuant to the Resource Conversation and Recovery Act, 42 U. S. C. ~690 1, et seq., as the same may be amended from time to time, or (ii) pollutants, petroleum and petroleum products as defined in either Chapter 403 or Chapter 376, Florida Statutes. as the same may be amended from time to time. (ii) "Environmental Law" or "Environmental Laws" shall mean any Federal, state or local statutory or common law relating to pollution or protection of the environment, including without limitation, any common law of nuisance or trespass, and any law or regulation relating to emissions, discharges, releases or threatened releases of Hazardous Substances into the environment (including without limitation, ambient air, surface water, groundwater. land surface or subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances. (k) Agency has no knowledge of and makes no representations concerning the physical condition of the Site or any portion thereof except as has been specifically disclosed in writing to Developer in Exhibit J. (I) Agency has no knowledge that any commitments have been made to any governmental authority, utility company, school board, church or other religious body, homeowners' association, or any other organization, group or individual relating to the Site which would impose an obligation upon Developer or its successors or assigns to make any contributions or dedications of money or land or to construct, install or maintain any improvements of a public or private nature on or off the Site. (m) There are no facts known to Agency materially affecting the value of the Site which are not readily observable by Developer or which have not been disclosed to Developer. (n) Present zoning and land use classification of the Site according to the current and applicable zoning ordinances and the applicable land use plan is satisfactory for the utilization of the Site for residential dwelling as contemplated by this Agreement. There are no proceedings to change such zoning or land use classifications or the conditions applicable thereto. There exists no violation of any requirement or condition to such zoning or land use classifications which is applicable to the Project. (0) The Site is not included in any national, state, county or municipal historic registry or similar classification, nor does the Site include any historical or archeological artifacts. (p) The Agency has full power and authority to enter into this Agreement and consummate the transactions contemplated hereby and neither this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation of any order, rule, regulation, agreement or instrument or any charter or organizational documents to which the Agency or the City is subject. No further approvals or consents by third parties or Mediterranea" Village Project De~'e/op"'elll Agreemetlt 29 governmental bodies are required in order for the Agency to enter into this Agreement and consummate the transactions contemplated hereby, except for the conveyance of the Stage III Properties by the City to the Agency. (q) The covenants, representations and warranties of the Agency and the City as contained herein shall be true and correct as of the Closing and shall survive the Closing of this transaction. 7.17. Condemnation. In the event that prior to the Closing Date, all or any portion of the Site or any rights or easements therein shall be taken by condemnation or rights of eminent domain or like process, or shall be threatened therewith, and the same. in Developer's reasonable opinion, would have a materially adverse impact upon Developer's use of the Site, Developer shall, within fifteen (15) days after having received notice thereof from Agency, elect in writing to either (a) continue this Agreement in full force and effect, notwithstanding such taking or threatcned taking, in which case Developer shall be required to continue the purchase of the Site, (b) delete the portion of the Site condemned or threatened to be condemned from this Agreement, with a proportionate reduction in the Purchase Price, or (c) terminate this Agreement. 7.18. Real Estate Commission. Developer and Agency represent that they have not used any brokerage services with respect to the conveyance of the Site to the Developer as herein contemplated. The Agency and the Developer shall each hold the other harmless and indemnify the other party, its respective successors, assigns, employees, directors and agents from any and all costs, damages, liabilities and expenses, including reasonable attorney's fees, incurred by reason of any claim for fee or commission of any kind based on the sale contemplated herein. 7.19. Maintenance of Site. Through Closing, the Agency shall maintain the Site in good order. 7.20. Radon Gas Notice. As required by Section 404.056(6), Florida Statutes, the following notice is hereby given to the Developer as the prospective purchaser of the Site, which may have buildings, located thereon, and the Dcveloper acknowledges receipt of such notice: "Radon Gas: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information MediteTTcllIeall Village Project Del'elopment Agreemellt 30 regarding radon and radon testing may be obtained from your county public h~alth unit. II 7.21. Impact Fees. The Agency agrees to satisfy on behalf of the Developer the following fees for each Stage of the Project: Building permit fees, plan review fees and preliminary plat review fees. Reimbursement shull be within 45 days. The Agency agrees to payor otherwise satisfy the following fees for Stage I units for which a certiticate of occupancy is issued by May 30, 2003: Development impact fees, sewer impact fees, transportation impact fee, water impact fees including water meter and tapping fees, state surcharge fee, certificate of occupancy fees, stormwater buy-in fee, community development approval fee, and any other City impact fees which are subsequently adopted. For units for which a certificate of occupancy is issued after May 30, 2003, and before May 30, 2004, the Agency shall pay 50% of the above fees for each unit. For units for which a certificate of occupancy is issued after May 30, 2004, the Developer shall be responsible for payment of all fees. The Agency agrees to payor otherwise satisfy the following fees for all Stage II units for which a certificate of occupancy is issued by May 30, 2004: Development impact fees, sewer impact fees, water impact fees, state surcharge fee, certificate of occupancy fees, stonnwater buy-in fee, and community development approval fee. For units for which a certificate of occupancy is issued after May 30, 2004, and before May 30, 2005, the Agency shall pay 50% of the above fees. For units for which a certificate of occupancy is issued after May 30, 2005, the Developer shall be responsible for payment of all fees. The Agency agrees to payor otherwise satisfy the following fees for all Stage III units for which a certificate of occupancy is issued by May 30, 2005: Development impact fees, sewer impact fees, water impact fees, state surcharge fee, certificate of occupancy fees, stormwater buy-in fee, and community development approval fee. For units for which a certificate of occupancy is issued after May 30, 2005, and before May 30, 2006, the Agency shall pay 50% of the above fees. For units for which a certificate of occupancy is issued after May 30, 2006. the Developer shall be responsible for payment of all fees. In the event that the Infrastructure Improvement known as the Town Pond is not substantially completed by May 30, 2003, the dates contained in this Section 7.21 shall be extended for a like period for the period that the Town Pond is delayed until completion of the Town Pond. 7.22 Tax Credit. Agency agrees to apply for or cause the City to apply for the Tax Credit for the voluntary Mediurnmeall Village /Jr(Jject Development r\greeme1lt 31 cleanup activity for the site pursuant to S199.1055 and S376.80, Florida Statutes. The Agency agrees to cause such credits to be transferred at the direction of the Developer to the extent allowed by law. ARTICLE 8. CONSTRUCTION OF THE PROJECT. 8.0t. Site Clearance. The Developer shall be responsible for clearance of the Site such that each part thereof is in a condition ready for development to commence as of the Commencement Date of each Stage. Permits issued by the City for pre-construction activities on the Site, including site clearance, shall not be considered a Building Permit for purposes of this Agreement. 8.02. Construction of the Proiect. (a)(1) The Developer shall construct the Project on the Site substantially in accordance with the Project Plans and Specifications therefor. Subject to Unavoidable Delay and the terms and conditions in this Agreement, the Developer shall commence construction of each Stage of the Project within ninety (90) days of the Closing Date for each Stage. (2) For purposes of this Section 8.02, "commence construction" of the Project means commencement of meaningful physical development of that part of the Project as authorized by the Building Permit therefor which is continued and prosecuted with reasonable diligence toward and with the objective of completion of that part of the Project. (3) If for any reason, excluding Unavoidable Delay, the Developer does not commence construction of Stage I on or before the ninetieth (90th) day after the Closing Date, then as of that date the Agency shall no longer be obligated to plan, design, construct or install the Infrastructure Improvements in accordance with the Infrastructure Schedule, and Agency and Developer shall thereafter undertake to mutually agree upon a revised Infrastructure Schedule for the design, construction and installation of the Infrastructure Improvements by Agency. (b)(1) After the Commencement Date, the Developer shall continue, pursue and prosecute the construction of each Stage of the Project with reasonable diligence to completion by the Completion Date and shall not at any time actually or effectively have abandoned (or its Contractor having actually or effectively abandoned) the Site. For purposes of this subsection (b), "abandoned" means to have ceased any construction work which effectively advances the construction of that Stage toward completion, including all or substantially all the construction work force withdrawing from the Site. This section shall apply to each Stage of the Project as construction commences on the Stage. (2) All construction work on each Stage of the Project shall be done substantially in accordance with the Project Plans and Specifications approved therefor pursuant to Article 4 Mediterranean Village Project Developmetrl Agreement 32 hereof. (3) All obligations of the Developer with respect to commencement, continuation and completion of construction of each part of the Project shall be subject to delays and extensions from time to time for Unavoidable Delay. The Developer shall not be deemed to be in default of this Agreement to the extent construction or completion of the Project, or any part thereof, is not complete by reason of Unavoidable Delay. (c) For purposes of this Section 8.02, "completion," "complete," "substantially complete" or "substantial completion" means, with respect to construction of either of Stage I or Stage II of the Project, the later of a certiticate of occupancy for ninety (90%) percent of the units for that Stage of the Project has been issued by the City or other appropriate governmental authority having jurisdiction over the Site. (d)(I) For each Stage of the Project, commencing on the fifteenth (15th) day of the calendar month following the calendar month in which the Commencement Date occurs and continuing until the Completion Date for that Stage, the Developer shall make monthly reports to the Agency in such detail and in such form as may reasonably be requested by the Agency as to the actual progress of the construction of that Stage of the Project. (2) If the Agency believes adequate progress in the construction of any part of the Stage of the Project is not being made, the Agency shall give notice to the Developer that adequate progress is apparently not being made in the construction of that Stage of the Project and to respond within ten (10) business days thereafter as to why adequate progress is or is not being made toward completion of that Stage of the Project. (e)(1) The Developer agrees that each contract between the Developer and a Contractor for any part of the Project shall provide, among other things, that: (i) notice shall be given to the Agency of any material defaults thereunder by the Developer or the Contractor; and (ii) in the event of a material breach by the Developer of such contract that is not being contested by the Developer, the Agency shall have the right, but not the obligation, to cure any defaults by the Developer under such contract without penalty to the Agency or stoppage of the work. (2) If the Agency elects to cure a material default by the Developer under a contract between the Developer and a Contractor, upon receipt of a notice to that effect from the Agency, the Developer shall immediately deliver to the Agency all plans, specifications, drawings, contracts and addenda thereto pertaining to the construction of that part of the Project which are in its possession or control (and shall instruct the Project Professionals and any other persons in possession or control of such plans, specifications, drawings and contracts to deliver them to the Agency). (3) The right of the Agency to cure any default by the Developer as provided in paragraph (1) above shall be subject and subordinate to the right of the Construction Lender to Mediterrarrearr Village Project Developmellt Agreemellt 33 cure such default. 8.03. Maintenance and Repairs. During the construction of each Stage of the Project, the Developer shall, at its own expense, keep that Stage of the Project in good and clean order and condition and the Developer shall promptly make all necessary or appropriate repairs, replacements and renewals thereof, whether ordinary or extraordinary, foreseen or unforeseen. All repairs, replacements and renewals shall be equal in quality and class to the original work. When making such repairs, replacements or renewals, the Developer shall comply with all applicable laws, ordinances, codes and regulations. 8.04. Project Alterations or Improvements. During the construction of any Stage of the Project, the Developer may, from time to time, make alterations and improvements, structural or otherwise, to the Project as the Developer deems desirable and consistent with the Project Plans and Specifications for the uses contemplated by this Agreement; provided, however, that prior to the commencement of any material alterations or improvements of sufficient size and scope as to constitute a material change in the previously approved Project Plans and Specifications, the Developer shall notify the Agency of such material change and may submit a change, amendment or revision to the Project Plans and Specifications to {he Agency for review as provided in Sections 4.03 and 4.04 hereof. Nothing in this Section 8.04 is intended nor shall be deemed to limit or restrict the exercise of governmental or regulatory powers or authority by the City or any other governmental entity or to enlarge its regulatory authority. 8.05. Completion Certificate. (a)(I) Upon the substantial completion of the construction of a Stage of the Project in accordance with the provisions of this Article 8 (particularly including subsection 8.02(c)), the Developer shall prepare and execute the Completion Certificate for that Stage, which shall then be delivered to the Agency. Upon receipt of the certificate the Agency shall promptly and diligently proceed to determine if construction of the applicable Stage has been completed substantially in accordance with the Project Plans and Specifications and this Agreement. Upon making such a determination the Agency shall execute the certificate and return it to the Developer. The date of the Completion Certificate shall be the date when all parties shall have executed said certificate. (2) The Completion Certificate shall constitute a conclusive determination by the parties hereto of the satisfaction and termination of the obligations of the Developer hereunder to construct the Stage described in the certificate; provided, however, that nothing in this Section 8.05 shall be a waiver of the rights, duties, obligations or responsibilities of the City or any other governmental entity acting in its regulatory or governmental capacity or an approval of said construction for purposes of the issuance of a certificate of occupancy for the Project or any Stage thereof. Mediterraneal/ Vii/age Project DCl'elopmmt Agreemel/t 34 (3) The parties agree that it is their intent that the review by the Agency for purposes of the Completion Certiticate determination pursuant to this Section 8.05 is not to be an additional or duplicate inspection over and above that required for purposes of the Building Permit, including the issuance of a certificate of occupancy. The Agency agrees that for purposes of determining if the Stage has been substantially completed in accordance with the Project Plans and Specifications, the issuance of a certiticate of occupancy for the Stage shall be a conclusive determination of substantial completion for purposes of this subsection (a) and, if such certificate has been determined to have been issued. then the Agency agrees to execute the Completion Certificate. (b)(l) If the Agency shall refuse or fail to execute the Completion Certiticate after receipt of a request by the Developer to do so, then the Agency shall, within ten (10) days after its receipt of such request, provide the Developer with a written statement setting forth in reasonable detail the reason(s) why the Agency has not executed the Completion Certificate and what must be done by the Developer to satisfy such objections so that the Agency would sign the certificate. Upon the Developer satisfying the Agency's objections, then the Developer shall submit a new request to the Agency for execution of the Completion Certificate and that request shall be considered and acted upon in accordance with the procedures in paragraph (a)(l) for the original request. (c) The Completion Certificate shall be in a form sufficient to be recorded in the public records of Pinellas County, Florida. After execution by the Agency, it shall be promptly returned to the Developer who shall record the certificate in the public records of Pinellas County, Florida, and pay the cost of such recording. 8.06. Agencv Not in Privity with Contractors. The Agency shall not be deemed to be in privity of contract with any Contractor or provider of goods or services with respect to the construction of any part of the Project or any Stage thereof. 8.07. Repurchase of Stage I Property. Stage II Property or Stage III Proper(V. (a) In the event Developer shall not have commenced construction of Stage I, Stage II or Stage III of the Project within one (1) year following each Closing Date, in such event, Agency shall have an option to purchase the Stage Property upon the terms and conditions as set forth in this Section 8.07 (the "Stage Property Option"). The Stage Property Option shall be exercised by Agency within ninety (90) days following the expiration of the one (1) year period following the Closing Date. The Stage Property Option shall be exercised by Agency providing written notice to Developer of its intent to exercise the Stage Option within said ninety (90) day period (time being of the essence with respect to such notice). In the event that Agency should fail to provide such written notice of its exercise of the Stage Property Option within said ninety (90) day period, then the Stage Property Option shall immediately and automatically lapse. (b) Upon proper and timely exercise of the Stage Property Option, Agency and Mediterranean Vii/age Project DCl'clopment Agreement 35 Developer shall undertake to close the conveyance of the Stage Property by Developer to Agency within sixty (60) days following the date of notice of the exercise of the Stage Property Option upon the following terms and conditions: (l) The price to bc paid by Agency to Developcr for the Stage Property shall equal the price per square foot of the Site paid by Developer to Agency at the Closing Date multiplied by the square footage of the Stage Propcrty, plus Developer's costs of any infrastructure improvements or drainage or utility improvemcnts which have been installed by Developer after notice thereof to the Agency and which bcnetit the Stage Property (such costs to be calculated on a pro rata basis based upon the benefit such improvements provide to the Property as compared to the Property not purchased by the Agency). (2) Agency shall pay for thc cost of any documentary stamp taxes imposed upon the deed conveying the Stage Property from Developer to Agency. In addition, Agency shall pay for any surveyor title insurance Agency elects to obtain in connection with such conveyance. (c) Until the commencement of construction by the Developer on the Stage Property or the expiration of the one (1) year period in which such construction was to commence plus the ninety (90) day period during which the Agency may exercise its option to repurchase the Stage Property 1 the Developer covenants and agrees with the Agency not to cause any mortgage or lien to be levied, assessed or placed on the Stage Property with respect to any financing of Developer's construction of the Project or other corporate financings of any type without the prior consent of the Agency. (d) Upon conveyance of the Stage Property to the Agency pursuant to the exercise of its option to repurchase the Stage Property, this Agreement shall terminate as to the Stage conveyed as provided in Section 13.05. (e) This option to repurchase the Stage Property shall survive a termination of this Agreement by the Developer pursuant to Section 13.01. ARTICLE 9. INSURANCE. 9.01. Insurance Requirements Generally. (a) The Developer agrees to purchase and maintain in full force and effect such insurance policies with coverages generally applicable to projects in the State of Florida and PineUas County similar in size and scope to the Project, or the Stage under construction if less than the entire Project. All insurance shall be obtained from financially responsible insurance companies either duly authorized under the laws of the State of Florida to do insurance business in the State of Florida (or subject to legal process in the State of Florida) and shall be issued and countersigned by duly authorized representatives of such companies for the State of Florida. Mediterrallean Village Project Del'elopme1lt Agreement 36 (b) The insurance coverages and limits shall be evidenced by properly executed certiticates of insurance. No less than thirty (30) days written notice by registered or certified mail must be given by the Developer to the Agency of any cancellation, intent not to renew, or reduction in the policy coverages. (c) The Developer shall cause to be provided to the Agency certified true copies of any insurance policy required by this Article 9 upon written request of the Agency. (d) Nothing in this Agreement is intended or shall be deemed to be designed by the Agency as a recommended insurance program for the Developer. (e)(l) The Developer alone shall be responsible for the sufficiency of its own insurance program. The Agency will in no way be responsible to the Developer or any other party for any inadequacy of the Developer's overall insurance program. (2) The Agency shall be responsible for the sufficiency of its insurance program. The Developer will in no way be responsible to the Agency or any other party for any inadequacy of the Agency's overall insurance program. 9.02. Insurance Exclusive of Indemnirv. The insurance policies and coverages of the Developer contemplated by this Article 9 are exclusive of. and in addition to, any and all indemnity obligations of the Developer and the Agency under this Agreement. 9.03. No Waiver of Sovereilm Immunity. Nothing in this Anicle 9 is intended or shall be deemed to constitute a waiver in whole or in part of any sovereign immunity applicable to and that may be asserted by the City or the Agency, or the Developer. ARTICLE 10. INDEMNIFICATION. 10.01. Indemnification bv the Developer. (a) For consideration of $10.00 and other good and valuable consideration herein provided, the receipt of which is hereby acknowledged by the Developer, the Developer agrees to indemnify, defend and hold harmless, the Agency, its respective agents, officers, or employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of any act or omission of the Developer, its agents, employees or contractors arising out of, in connection with or by reason of, the performance of any and all services contemplated by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of any and all services contemplated by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such services. Mediterranean Vii/age Project Developme"t Agreemmt 37 (b) The Developer's indemnity obligations under subsection (a) shall survive the earlier of the Termination Date or the Expiration Date, but shall apply only to occurrences, acts, or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. (c) The Developer's indemnity hereunder is in addition to and not limited by any insurance policy and is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, nor as a waiver of sovereign immunity for any party entitled to assert the defense of sovereign immunity. 10.02. Indemnification bv the Al!encv. (a) To the extent permitted by law, specitically including Section 768.28, Florida Statutes, and any insurance coverage available to the Agency, the Agency agrees to indemnify, defend and hold harmless, the Developer, its respective. officers. and employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of, any act or omission of the Agency, its respective agents or employees arising out of, in connection with or by reason of, the performance of any and all services contemplated by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of any and all services contemplated by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such services. (b) The Agency's indemnity obligations under this Section 10.02 shall survive the earlier of the Termination Date or the Expiration Date, but shall only apply to occurrences, acts or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. The Agency's indemnity hereunder is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, but is in addition to and not limited by any insurance policy provided that said obligation shall not be greater than that permitted and shall be limited by the provisions of Section 768.28, Florida Statutes, or any successor statute thereto. 10.03. Environmental Indemnification by the Agencv. (a) The Agency agrees to indemnify, defend, and hold harmless the Developer, its officers, directors, employees, agents, attorneys, contractors, lenders, successors, and assigns (including any successors or assigns to any interest of the Agency in the Site) (collectively, the Indemnified Parties) from all actions, claims, administrative proceedings, damages (except for punitive damages), losses (excluding those resulting from any diminution of value or marketability of the Site) including those resulting from delay or increased costs of construction, {such as the cost of dewatering during the construction of the swimming pool), expenses, costs (including those for remediation), fines, judgments, or other liabilities, including reasonable attorneys' fees, which may at any time be tiled against, imposed upon, incurred by, or asserted or awarded against any of the Indemnified Parties, arising from or in connection with Mediterrallea1l Vii/age Project Del'e[opmellt Agreeme1lt 38 (i) the presence, discharge, or release of any Hazardous Substances on, in, under, or about the Site at any time before the conveyance of the Site to the Developer by the Agency; or (ii) the application of any Environmental Law to the acts or omissions of the City or the Agency or their respective officers, employees, agents. successors. or assigns in connection with the Site; or (iii) the City's failure to comply with any Environmental Law with respect to the Site. With respect to any contaminant identified by the URS reports identitied above as having been detected on the Site, the Developer acknowledges receipt of the reports and represents that, to the best of the Developer's knowledge, the presence of the contaminants detected by URS will not delay or increase the cost of the construction or development planned by the Developer for the Site. With respect to the Stage III Property, the Developer acknowledges receipt of the Phase I and Phase II Environmental Site Assessment (ESA) Report, Town Pond Project, Downtown Clearwater, Dimmitt Chevrolet Properties, Properties C, D, and E, completed by International Technology Corporation dated March 4, 1999, and represents that the site conditions identified in the report will not delay or increase the cost of the construction or development planned by the Developer for the Site. (b) To exercise its indemnification rights under this section, an Indemnified Party shall promptly notify the Agency of any such claim for which indemnity is sought. Any such notice shall be given in good faith, be reasonably specific, and shall set forth in reasonable detail, if available, the nature of the alleged loss, claim, damage, expense, or liability of the action or proceeding. An Indemnified Party shall advise the Agency of all facts material to the claim in the direct and actual knowledge of an Indemnified Party and, in the event of a third-party claim or action, shall afford the Agency the opportunity, at the Agency's sole cost, to defend against such claims, actions, or proceedings. In any such claim, the Indemnified Party shall have the right to retain its own counsel, and the fees and expenses of such counsel shall be at its own expense unless the Agency and the Indemnified Party agree in writing to the retention of such counsel at the Agency's expense. (c) An Indemnified Party shall have no right to settle or compromise any claims subject to such indemnification if the Agency notifies the Indemnified Party that the Agency intends to defend against the claim and undertakes the defense of it within fifteen days after receiving written notice of the claim and continues the defense throughout the pendency of the claim. If the Agency fails to undertake or continue the defense, then the Indemnified Party may settle or compromise any claim upon such terms and conditions as the Indemnified Party deems necessary or appropriate, and, subject to the provisions of section 10.04 below, all amounts incurred by the Indemnified Party (including reasonable attorneys' fees) in connection with the Mediterranean Vii/age Project Developme1lt Agreeme1lt 39 settlement or compromise shall be paid by the Agency to the extent that such amounts are covered by the indemnification provided in this Agreement. (d) The provisions of this section 10.03 shall survive the expiration or termination of this Agreement and shall be in addition to any other remedy or indemnitication provided to the Developer under this Agreement. This indemnity by the Agency is not and shall not be interpreted as an insuring agreement between or among the parties but is in addition to and not limited by any insurance policy. This indemnity by the Agency shall not be affected, moditied, extinguished, or impacted in any way by any provision of the State of Florida BrowntieJds Redevelopment Act set forth in ~~376. 77 through 376.86. F.S... 10.04. Limitation of Indemnification. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations of the Developer (as set forth in Section 10.01) and the Agency (as set forth in Section 10.02 and 10.03), the following shall 'apply: (a) the indemnifying party shall not be responsible for damages that could have been, but were not, mitigated by the indemnified party; (b) the indemnifying party shall not be responsible for that ponion of any damages caused by the negligent or willful acts or omissions of the indemnified party; and (c) there shall be no obligation to indemnify hereunder in the event that the indemnified party (1) shall have effected a settlement of any claim without the prior written consent of the indemnifying party, or (2) shall not have subrogated the indemnifying party to the indemnified party's rights against any third party by an assignment to the indemnifying party of any cause or action against such third party. ARTICLE 11. REPRESENT A TIONS, \V ARRANTIES AND COVENANTS OF THE DEVELOPER. 11.01. Representations and Warranties. The Developer represents and warrants to the Agency that each of the following statements is currently true and accurate and agrees the Agency may rely upon each of the following statements: (a) The Developer is a Florida corporation duly organized and validly existing under the laws of the State of Florida, has all requisite power and authority to carryon its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is 01' will be a party, is qualified lo do business in lhe State of Florida, and has consented to service of process upon a designated agent for service of process in the State of Florida. Metliterrallean Village Project Deve[opmetlt Agreemellt 40 (b) This Agreement and, to the extent such documents presently exist in form accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which Developer is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Developer, and neither the execution and delivery thereof, nor compliance with the temlS and provisions thereof or hereof: (1) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (2) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, (3) contravenes or results in any breach of, default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the Developer's articles of incorporation, or, any other agreement or instrument to which the Developer is a party or by which the Developer may be bound. (c) This Agreement and, to the extent such documents presently exist in foml accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Developer enforceable against the Developer in accordance with the terms thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (d) There are no pending or, to the knowledge of the Developer, threatened actions or proceedings before any court or administrative agency against the Developer, or against any controlling shareholder, officer, employee or agent of the Developer, which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Developer. (e) The Developer has filed or caused to be filed all federal, state, local and foreign tax returns, if any, which were required to be filed by the Developer, and has paid, or caused to be paid, all taxes shown to be due and payable on such returns or on any assessments levied against the Developer. (t) All financial information and other documentation, including that pertaining to the Project or the Developer, delivered by the Developer to the City and the Agency, was, on the date of delivery thereof, true and correct. (g) The principal place of business and principal executive offices of the Developer are in Clearwater, Florida, and, until the expiration or termination of this Agreement, the Developer will keep original or duplicate records concerning the Project (such as construction contracts, financing documents and corporate documents) and all contracts, licenses and similar Mediterranean Village Project Developmmt Agreemellt 41 rights relating thereto at an office located in the corporate limits of the City of Clearwater. (h) As of the Closing Date, the Developer will have the tinancial capability to curry out its obligations and responsibilities in connection with the development of the Project us contemplated by this Agreement, including the purchase of the Site from the Agency as contemplated by Article 7. (i) The Developer (with the assistance of its Project Professionals) has the experience, expertise, and capability to develop, cause the construction, and complete the Project and, oversee and manage the design, planning. construction, and completion of the Project, and to acquire the Site as provided herein. (j) Developer hereby covenants, warrants, and represents to Agency that with respect to the remediation of soil contamination at the Site, Developer will pay the City on or before March 14th, 2002 the sum of $130,000 in rerum for the City's proceeding with a remedy that removes soil in accordance with the scope of work set forth in Exhibit L. to a greater extent and greater depth than would be required to meet alternative soil cleanup target levels based on the Focused Risk Assessment identified in paragraph 0)(1) in this section, above, in the expectation that the Department would either require no deed restriction pertaining to soil or would ultimately release any portion of the Site initially subjected to such a deed restriction after remediation. In addition, Developer shall be responsible for all costs of backfilling the site due to soil remediation and peat removal.:. 11.02. Covenants. The Developer covenants with the Agency that until the earlier of the Termination Date or the Expiration Date: (a) The Developer shall timely perform or cause to be perfonned all of the obligations contained herein which are the responsibility of the Developer to perform. (b) During each year this Agreement and the obligations of the Developer under this Agreement shall be in effect, the Developer shall cause to be executed and to continue to be in effect those instruments, documents, certificates, pennits, licenses and approvals and shall cause to occur those events contemplated by this Agreement that are applicable to, and that are the responsibility of, the Developer. (c) The Developer shall assist and cooperate with the Agency to accomplish the development of the Project by the Developer in accordance with this Agreement, and the Project Plans and Specifications and will not violate any laws, ordinances, rules, regulations, orders, contracts or agreements that are or will be applicable thereto, including the Plan and the Act. (d) The Developer shall comply with all provisions of the financing documents for any Construction Financing. Mediterrancall Vii/age Project Development Agreement 42 (e) Subsequent to the Effective Date, the Developer shall maintain its financial capability to develop. construct and complete the Project and shall promptly notify the Agency of any event, condition. occurrence, or change in its financial condition which materially adversely affects, or with the passage of time is likely to adversely affect, the Developer's financial capability to successfully and completely develop, construct and complete the Project as contemplated hereby. (0 The Developer shall promptly causc to be filed when due all federal, state. local and foreign tax returns required to be tiled by it, and shall promptly pay when due any tax required thereby so as to avoid an uncured tax licn against the Site. (g) Subject to and except as pern1itted by Section 17.01, prior to the expiration or termination of this Agreement, the Developer shall maintain its existence, will not dissolve or substantially dissolve all of its assets and will not consolidate with or merge into another corporation, limited partnership, or other entity without the prior approval of the Agency, unless the Developer is the surviving entity or retains a controlling interest in the consolidated or merged corporation. in which case no consent by Agency shall be required. In any event, prior to the expiration or termination of this Agreement, the Developer, will promptly notify the Agency of any changes to the existence or form of the corporation of Developer. (h) The Developer shall not sell, lease, transfer or otherwise dispose of all or substantially all its assets without adequate consideration and will otherwise take no action which shall have the effect, singularly or in the aggregate, of rendering Developer unable to continue to observe and perform the covenants, agreements, and conditions hereof and the performance of all other obligations required by this Agreement. (i) Except for the removal of any structures, plants, items or other things from the Site after the Closing Date necessary for construction of the Project to commence and continue, the Developer shall not permit, commit, or suffer any waste or impairment of the Site prior to the earlier of the Termination Date or the Expiration Date. (j) Provided all conditions precedent thereto have been satisfied or waived as provided herein, the Developer shall design, construct and complete each Stage of the Project such that it is substantially complete as provided in this Agreement no later than the Completion Date for that Stage. (k) Subject to the Agency's indemnification obligation set forth in ~ 10.03, to the extent that the . BSRA between the City and the Department remains in effect and imposes continuing obligations after closing, Developer agrees to perform any actions necessary to ensure continued compliance with those obligations, including signing an access agreement in substantially the same form as in Exhibit C to the SSRA and complying with any deed restrictions or other conditions imposed by the Department on the Monitoring Only Plan or other order issued under the BSRA for the Site. Mediterranean Village Project Development Agreement 43 ARTICLE 12. REPRESENTATIONS, \VARRANTIES AND COVENAi~TS OF THE AGENCY. 12.01. Representations and Warranties. The Agency represents and warrants to the Developer that each of the following statements is currently true and accurate and agrees that the Developer may rely on each of the following statements: (a) The Agency is a validly existing body corporate and politic of the State of Florida, is the duly created community redevelopment agency of the City under Part III, Chapter 163, Florida Statutes (known as the Community Redevelopment Act of 1969), has all requisite corporate power and authority to carryon its business as now conducted and to perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party. (b) This Agreement and, to the extent such documents presently exist in form accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which the Agency is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Agency, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof (1) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (2) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Agency, (3) contravenes or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Agency under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the Agency is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the Agency outstanding on the Effective Date. (c) This Agreement and, to the extent such documents presently exist in form accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which the Agency is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of the Agency enforceable against the Agency in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (d) There are no pending or threatened actions or proceedings before any court or administrative agency against the Agency, or against any officer of the Agency, which question the validity of any document contemplated hereunder, or which are likely in any case, or in the Mediterraneall Vil/ag~ Project DCl'e/opmellt Agreemellt 44 aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Agency. (e) The lnterlocal Agreement is a valid and binding obligation of the Agency and the City. 12.02. Covenants. The Agency covenants with the Developer that until the earlier of the Termination Date or the Expiration Dare: (a) The Agency shall timely perform or cause to be perfonned all of the obligations contained herein which are the responsibility of the Agency to perform. (b) During each year that this Agreement and the obligations of the Agency under this Agreement shall be in effect, the Agency shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals, and shall cause to occur those events contemplated by this Agreement that are applicable to and are the responsibility of the Agency. (c) The Agency shall assist and cooperate with the Developer to accomplish the development of the Project in accordance with this Agreement and . the Project Plans and Specifications, will carry out its duties and responsibilities contemplated by this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts, or agreements that are or will be applicable thereto, and, to the extent permitted by law, the Agency will not enact or adopt or urge or encourage the adoption of any ordinances, resolutions, rules. regulations or orders or approve or enter into any contracts or agreements, including issuing any bonds, notes, or other forms of indebtedness, that will result in any provision of this Agreement to be in violation thereof. (d) The Agency shall not request or recommend any rezoning of the Site, or any part thereof, which will prevent or adversely affect the development of the Project. (e) The Agency shall maintain its financial capability to carry out its respo~sibilities as contemplated by this Agreement and shall notify the Developer of any event, condition, occurrence, or change in its financial condition which adversely affects, or with the passage of time is likely to adversely affect, the Agency's financial capability to carry out its responsibilities contemplated hereby. (t) So long as this Agreement is in effect and the Developer is not in default hereunder, the Agency shall maintain the Interlocal Agreement in effect and will not terminate it or do anything or not do anything that would be the basis for the City to terminate such agreement prior to its scheduled expiration. ARTICLE 13. DEF AUL T; TERl'UNA TION. Mediterraneall Village Project Del'elopmc1It Agrcement 45 13.01. Default by Developer. (a) Provided the Agency is not then in default of this Agreement under Section 13,02 hereof, there shall be an "event of default" by the Dcveloper upon the occurrence of anyone or more of the following after the Effective Date: (1) The Developer shall fa il to perform or comply with any material provis ion of this Agreemcnt applicable to it within the time prescribed thcrefor; provided, however, that suspension of or delay in performance by the Developer during any period in which the Agency is in default of this Agreement as provided in Section 13.02 hercof will not constitute an evcnt of default by (hc Dcveloper under this subscction (a); or (2) Thc Dcveloper shall make a general assignment for the benetit of its creditors, or shaJl admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent. or shall file a petition seeking any reorganization, arrangement, composition, rcadjustment, liquidation, dissolution or similar relief under any present or future statute. law or regulation or shaJl file an answer admitting, or shall fail reasonably to contest, the material aJlegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or (3) Within sixty (60) days after the commencement of any proceeding by or against the Developer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed or otherwise terminated, or if, within sixty (60) days after the appointment without the consent or acquiescence of thc Developer of any trustee, receiver or liquidator of any of such entities or of any material part of any of such entity's properties, such appointment shall not have been vacated. (b)(l) If an event of default by the Developer described in subsection (a) above shall occur, the Agency shall provide written notice thereof to the Developer, and, if such event of default shall not be cured by the Developer within thirty (30) days after receipt of the written notice from the Agency specifying in reasonable detail the event of default by the Developer, or if such event of default is of such nature that it cannot be completely cured within such time period, then if the Agency is not then in default of this Agreement and the Developer shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary then, in addition to any remedy available under Section 13.03, the Agency may terminate this Agreement or pursue any and aJllegal or equitable remedies to which the Agency is entitled, provided, however, if the Developer shall fail to cure such event of default within said thirty (30) day or longer period or ceases to proceed diligently to timely cure such event of default, then the Agency may proceed to enforce other available remedies without providing any Mediterratleatl Village Project Dc~'elopmetlt Agrecmellt 46 (3) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or Agency's ability to perform by such deadline or the expiration of such period. additional notice to the Developer. (2) Any attempt by the Agency to pursue any of the above referenced remedies will not be deemed an exclusive election of remedy or waiver of the Agency's right to pursue any other remedy to which either may be entitled. (c) Subject to the rights of the Construction Lender, any Contractor, creditors of the Developer, and others claiming a legal or equitable interest in the Project, or a portion thereof, if the Agency elects under Section 6.06 to cure a default under subsection (a) by the Developer and complete the construction of the Project, all plans and specifications. working drawings, construction contracts, contract documents, Building Permits, Permits, management agreements, and tinancial commitments (all only to the extent assignable) with respect to the Project shall, if such default has not been previously cured, on the day following receipt by the Developer of notice from the Agency of its election to cure under Section 6.06, be deemed then assigned to the Agency making said election, without necessity of any other action being taken or not taken by any party hereto. The Developer shall transfer and deliver to the Agency upon making said election, all assignable Project Plans and Specifications, working drawings, construction contracts, contract documents, financial commitments, management agreements, and all Permits. (d) In the event of a temlination of this Agreement pursuant to this Section 13.01, the Agency shall not be obligated to make or to continue to make any payments of any Impact Fees or using any increment revenues attributed to the Project for Infrastructure Improvements. 13.02. Default bv the Agency. (a) Provided the Developer is not then in default under Section 13.01, there shall be an "event of default" by the Agency under this Agreement in the event the Agency shall fail to perform or comply with any material provision of this Agreement applicable to it; provided, however, that suspension of or delay in performance by the Agency during any period in which the Developer is in default of this Agreement as provided in Section 13.01 hereof will not constitute an event of default by the Agency under this subsection (a). (b)(1) If an event of default by the Agency described in subsection (a) shall occur, the Developer shall provide written notice thereof to the Agency, and, after expiration of the curative period described in paragraph (2) below, may terminate this Agreement, institute an action to compel specific performance of the terms hereof by the Agency or pursue any and all legal or equitable remedies to which the Developer is entitled; provided, however, if the event of default by the Agency occurs on or prior to the Closing Date, any monetary recovery by the Developer in any such action shall not include any lost profits or consequential damages and Mediterraneall Village Project Development Agreeme1lt 47 (2) The Developer may not terminate this Agreement or institute an action described in paragraph (1) above if the Agency cures such event of default within thirty (30) days after receipt by the Agency of written notice from the Developer specifying in reasonable detail the event of default by the Agency, or if any such event of default is of such nature that it cannot be completcly curcd within such period, then within such reasonably longer period of time as may be necessary to cure such default, provided however, if the Agency is proceeding diligently and in good faith. the curative period shall be extended for a period of not exceeding an aggregate of thirty (30) days without any approval or consent of the Developer being required, but such approval will be required (and shall be given or withheld in Developer's sole discretion) if the curative period is to be extended beyond sixty (30) days after the notice of default has been .given by the Developer to the Agency if the Agency has commenced to cure such default within such thirty (30) day period and is diligently prosecuting such curative action to completion. The Agency shall within said thirty (30) day period or such longer period promptly, diligently and in good faith proceed to cure such event of default after receipt of the notice from the Developer and shall succeed in curing such event of default within said period of time, provided, however, if the Agency shall fail to cure such event of default within said thirty (30) day or longer period or ceases to proceed diligently to timely cure such event of default, then the Developer may proceed with its available remedies without providing any additional notice to the Agency. shall be limited to bona fide third-party out-of-pocket costs and expenses, including reasonable attorneys' fees, incurred by the Developer in connection with the transactions contemplated hereby on and after the Effective Date. (3) Any attempt by the Developer to pursue any of the remedies referred to in paragraphs (1) and (2) above will not be deemed an exclusive election of remedy or waiver of the Developer's right to pursue any other remedy to which it might be entitled. (4) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or Agency's ability to perform by such deadline or the expiration of such period. 13.03. Obligations. Rights and Remedies Cumulative. Unless specifically stated herein to the contrary, the specified rights and remedies to which either the Agency or the Developer are entitled under this Agreement are not exclusive and are intended to be in addition to any other remedies or means of redress to which the Agency or the Developer may lawfully be entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in, the performance of its obligations by the Developer, while the Agency shall at such time be in default of their obligations hereunder shall not be deemed to be an "event of default." The suspension of, or delay in, the performance of the obligations by the Agency while the Developer shall at such time be in default of its obligations hereunder shall not be deemed to be an "event of default" by the Agency. 13.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of MetlitetTlllleall Village Project Developmellt Agreemetrt 48 the Agency or the Developer to promptly or continually insist upon strict perfornmnce of any term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other agreement, instrument or document of whatever form or nature contemplated hereby shall not be deemed a waiver of any right or remedy that the Agency or the Developer may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term. covenant, condition or provision. 13.05. Termination. (a) The Developer and the Agency acknowledge and agree that as of the Effective Date certain matters mutually agreed by the parties hereto are essential to the successful development of the Project have not been satisfied or are subject to certain conditions, legal requirements or approvals beyond the control of any of the parties hereto or which cannot be definitely resolved under this Agreement. In recognition of these events or conditions, the parties hereto mutually agree that, provided the appropriate or responsible party therefor diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or condition to occur or be satisfied, the failure of the events or conditions listed in subsection (b) below to occur or be satisfied shall not constitute an event of default by any party under this Article 13, but may be the basis for a ternlination of this Agreement as provided in this Section 13.05. (b) In addition to any other rights of termination provided elsewhere in this Agreement, this Agreement may be terminated prior to the Closing Date as provided in subsection (c) after the occurrence of any of the following events or conditions: (1) All of the Site is taken by the exercise of the power of eminent domain by a governmental authority (except the City or the Agency) or a person entitled to exercise such power or benefiting therefrom, or such part of the Site is taken by the power of eminent domain so as to render the Project commercially unfeasible or unusable for its intended uses as contemplated by this Agreement; (2) The appropriate governmental authority (but not including the City in exercise of its governmental and regulatory authority and responsibility), upon petition by the Developer, unduly delays or denies or fails to issue the Permits, issue the Building Permits, or approve any other land use approval necessary to commence construction of the Project on the Site; (3) The City has denied or failed to approve Infrastructure Improvements Plans and Specifications or has improperly denied or failed to issue the Building Permit. (4) A moratorium on new construction is imposed by a governmental authority within the City or Pinellas County so as to prevent construction of the Project to commence; (5) The City or other appropriate governmental authority has issued a concurrency Mediterrallean Vii/age Project Developmellt Agreemetlt 49 compliance certificate or a reservation of services capacity as described in Section 3.05 and such certificate or reservation has been properly revoked. repealed, superseded, or otherwise no longer of any effect or the Developer is unable to rely upon such certificate or reservation, if such a certiticate or reservation is required for development of the Project on the Site, and the Developer cannot obtain a new or replacement certificate or reservation for the Project. (6) The Site is not conveyed to the Developer by the Agency due to a condition to closing described in Section 7.10 not being timely satisfied or waived. (7) The City fails to approve any zoning, site plan or building plan before May 30, 2002. (8) The City approves an amendment to the Plan, which is inconsistent with the Project being located on the Site. (c) Upon the occurrence of an event described in subsection (b), then the Developer or the Agency may upon determining that such event cannot reasonably be expected to change in the foreseeable future so as to allow development of the Project, may elect to terminate this Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence of such event or the determination of inability to cause a condition precedent to occur or be satisfied, stating its election to terminate this Agreement as a result thereof, in which case this Agreement shall then terminate, provided, however, only the Developer may elect to terminate this Agreement upon the occurrence of an event described in paragraph (3), (7), and (8). (d) In the event of a termination pursuant to Section 13.05(c), neither the Developer nor the Agency shall be obligated or liable one to the other in any way, financially or otherwise, for any claim or matter arising froD I or as a result of this Agreement or any actions taken by the Developer and the Agency, or any of them, hereunder or contemplated hereby, and each party shall be responsible for its own costs. (e) Notwithstanding anything to the contrary contained herein, in the event that any party shall have, but shall not exercise, the right hereunder to terminate this Agreement because of the non-satisfaction of any condition specified herein, and such condition is subsequently satisfied, then the non-satisfaction of such condition shall no longer be the basis for termination of this Agreement. 13.06. Termination Certificate. (a) In the event of a termination of this Agreement for any reason prior to the Expiration Date, each of the parties hereto do covenant and agree with each other to p~omptJy execute a certificate prepared by the party electing to terminate this Agreement, which certificate shall expressly state that this Agreement has been terminated in accordance with its terms, is no longer of any force and effect except for those provisions hereof which expressly survive Mediterralleall Vii/age Project Del'elopmellt Agreemellt 50 termination, that the rights, duties and obligations of the parties hereto have been tern1inated and released (subject to those surviving provisions hereot) and that the Site is no longer subject tCl any restrictions, limitations or encumbrances imposed by this Agreement. (b) The certificate described in subsection (a) shall be prepared in a form suitable for recording and promptly after execution by all of the parties hereto shall be recorded in the public records of Pinellas County, Florida. The cost of recording the termination certiticate shall be paid by the terminating party. ARTICLE 14. UNAVOIDABLE DELAY. 14.01. Unavoidable Delay. (a) Any delay in performance of or inability to perform any obligation under this Agreement (other than an obligation to pay money) due to any event or condition described in paragraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in this Section 14.01. (b) "Unavoidable Delay" means any of the following events or conditions or any combination thereof: acts of God, acts of the public enemy, riot, insurrection, war, pestilence, archaeological excavations required by law, unavailability of materials after timely ordering of same, epidemics, quarantine restrictions, freight embargoes, fire, lightning, hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement weather (as indicated by the records of the local weather bureau for a five-year period preceding the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73 and 74, Florida Statutes, restoration in connection with any of the foregoing or any other cause beyond the reasonable control of the party performing the obligation in question, including, without limitation, such causes as may arise from the act of the other party to this Agreement, or acts of any governmental authority (except that acts of the Agency shall not constitute an Unavoidable Delay with respect to perfonnance by the Agency). (c) An application by any party hereto (referred to in this paragraph (c) and in paragraph (d) as the II Applicant") for an extension of time pursuant to subsection (a) must be in writing, must set forth in detail the reasons and causes of delay, and must be filed with the other party to this Agreement within seven (7) days following the occurrence of the event or condition causing the Unavoidable Delay or seven (7) days following the Applicant becoming aware (or with the exercise of reasonable diligence should have become aware) of such occurrence. (d) The Applicant shall be entitled to an extension of time for an Unavoidable Delay only for the number of days of delay due solely to the occurrence of the event or condition causing such Unavoidable Delay and only to the extent that any such occurrence actually delays that party from proceeding with its rights, duties and obligations under this Agreement affected by such occurrence. Mediterraneall Village Project Developme1lt Agreement 51 ARTICLE 15. RESTRICTIONS ON USE. 15.01. Restrictions on Use No use of the Project or the Site other than as 100-unit residential townhouse development with swimming pool and community hall as described in the Proposal, this Agreement and the Plan shall be permitted unless and until the Developer or the person, if other than the Developer, intending to so use the Project or Site, shall file with the Agency a request for a release from the any part of or all of the restriction imposed by this Section 15.01. The Agency shall promptly consider such request and either deny the request, approve the request as filed. or approve the request subject to such terms, conditions and limitations as the Agency may reasonably require. Unless specifically requested and approved, any release of the restriction imposed by this Section 15.01 shall not by its own terms without the consent of the Agency release the Developer from any obligations or restrictions imposed by this Agreement or any agreement, instrument or document contemplated hereby. If any release of the restriction imposed by this Section 15.01 is approved by the Agency, an instrument evidencing such release and in such form that it may be recorded, shall be recorded in the public records of Pinellas County, Florida, and the cost of such recording shall be paid by the Developer. Nothing in this Section 15.01 is intended to affect or override any law, ordinance, regulation, or other legal restriction not set forth in this Agreement. ARTICLE 16. FIRE OR OTHER CASUALTY; CONDE~lNA TION. 16.01. Loss or Damage to Proiect. If economically feasible, the Developer covenants and agrees to diligently commence and complete the reconstruction or repair of any loss or damage caused by fire or other casualty or by eminent domain (provided the City or the Agency is not the condemning authority) to each and every part of the Project then owned by Developer to substantially the same as existed prior to the occurrence of such loss or damage. Any reconstruction or repair of any loss or damage to the Project shall be to the standards, design, plans and specifications of the original construction unless any change therefrom is approved by the Agency. 16.02. Partial Loss or Damage to Proiect. Any loss or damage by fire or other casualty or exercise of eminent domain to the Project or Site, or any portion thereof, which does not render the Project or Site unusable for the use contemplated by this Agreement, shall not operate to terminate this Agreement or to relieve or discharge the Developer from the timely performance and fulfillment of the Developer's obligations pursuant to this Agreement, subject to an extension of time for an Unavoidable Delay. 16.03. Notice of Loss or Damage to Proiect. The Developer shall promptly give the Agency written notice of any significant damage or destruction to the Project stating the date on which such damage or destruction occurred, the expectations of the Developer as to the effect of such damage or destruction on the use of the Project, and the proposed schedule, if any I for Mediterraman Village Project Developme"t Agreeme"t 52 repair or reconstruction of the Project. If the Developer determines the Project cannot be repaired or restored in an economically justitiable or other manner, then the Developer shall so notify the Agency and state reasons supporting its determination. 16.04. Subiect to Financing. The Developer's obligations under this Article 16 are subject to the terms and conditions of the Construction Financing or any other mortgage financing in effect at the time any such obligations hereunder would otherwise be applicable. ARTICLE 17. MISCELLANEOUS. 17.01. Assignments. (a)(l) Prior to the earlier of the Termination Date or the Expiration Date, the Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Project, or any part thereof to any person with the prior written consent of the Agency, provided that such party (hereinafter referred to as the "assignee"), to the extent of the sale, conveyance, assignment or other disposition by the Developer to the assignee, shall be bound by the terms of this Agreement the same as the Developer for such part of the Project as is subject to such sale, conveyance, assignment or other disposition. (2) If the assignee of Developer's right, title, interest and obligations in and to the Project, or any part thereof, assumes all of Developer's obligations hereunder for the Project, or that part subject to such sale, conveyance, assignment or other disposition, then the Developer shall be released from all such obligations hereunder which have been so assumed by the assignee, and the Agency agrees to execute an instrument evidencing such release, which shall be in recordable form. (b) An assignment of the Project, or any part thereof, by the Developer to <tilY corporation, limited partnership, general partnership, or joint venture, in which the Developer is the or a general partner or has either the controlling interest or through a joint venture or other arrangement shares equal management rights with a financial institution and maintains such controlling interest or equal management rights for the term of this Agreement shall not be deemed an assignment or transfer subject to any restriction on or approvals of assignments or transfers imposed by this Section 17.01, provided, however, that notice of such assignment shall be given by the Developer to the Agency no less than thirty (30) days prior to such assignment being effective and the assignee shall be bound by the terms of this Agreement to the same extent as would the Developer in the absence of such assignment. If the Developer shall at any time withdraw or be replaced as a general partner or no longer have the controlling interest or management rights as described in this subsection, then that event shall constitute an assignment of the Developer's right, title, interest or obligations under this Agreement for purposes of this Section 17.01 and the prior approval of the Agency shall be obtained before such an event shall be effective. Mediterranean Village Project Development Agreement 53 17.02. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the Agency, and its successors and assigns, and the Developer, and its successors and assigns, except as may otherwise be specifically provided herein. 17.03. Notices. (a) All notices, demands, requests for approvals or other communications given by either party to another shall be in writing, and shall be sent by registered or certitied mail, postage prepaid, return receipt requested or by overnight courier service, or by hand delivery to the office for each party indicated below and addressed as follows: To the Developer: To the Agency: Clearwater, FL 33761 Attention: Community Redevelopment Agency of the City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attention: THE BALK COMPANY, INC. with copies to: with copies to: Clearwater, Florida 337_ City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attention: City Manager (b) Notices given by courier service or by hand delivery shall be effective upon delivery and notices given by mail shall be effective on the third (3rd) business day after mailing. Refusal by any person to accept delivery of any notice delivered to the office at the address indicated above (or as it may be changed) shall be deemed to have been an effective delivery as provided in this Section 17.03. The addresses to which notices are to be sent may be changed from time to time by written notice delivered to the other parties and such notices shall be effective upon receipt. Until notice of change of address is received as to any particular party hereto, all other parties may rely upon the last address given. 17.04. Severability. If any term, provision or condition contained this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision or condition to persons or circumstances other than those in respect of which it is invalid or unenforceable, shall not be affected thereby, and each term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law, 17.05. Applicable Law and Construction. The laws of the State of Florida shall govern Mediterranean Village Project Development Agreement 54 the validity, performance and enforcement of this Agreement. This Agreement has been negotiated by the Agency and the Developer, and the Agreement, including. without limitation, the Exhibits, shall not be deemed to have been prepared by the Agency or the Developer, but by all equally. 17.06. Venue: Submission to Jurisdiction. (a) For purposes of any suit. action, or other proceeding arising out of or relating to this Agreement, the parties hereto do acknowledgc, consent. and agree that venue thereof is Pine lias County, Florida. (b) Each party to this Agreement hereby submits to the jurisdiction of the State of Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States District Court for the Middle District of Florida, for the purposes of any suit, action, or other proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of a motion as a defense or otherwise that such action is brought in an inconvenient forum or that the venue of such action is impropcr or that the subject matter thereof may not be enforced in or by such courts. (c) If at any time during the term of this Agreement the Developer is not a resident of the State of Florida or has no office, employee, agency or general partner thereof available for service of process as a resident of the State of Florida, or if any permitted assignee thereof shall be a foreign corporation, partnership or other entity or shall have no officer, employee, agent, or general partner available for service of process in the State of Florida, the Developer hereby designates the Secretary of State, State of Florida. its agent for the service of process in any court action between it and the Agency arising out of or relating to this Agreement and such service shall be made as provided by the laws of the State of Florida for service upon a non-resident; provided, however, that at the time of service on the Florida Secretary of State, a copy of such service shall be delivered to the Developer at the address for notices as provided in Section 17.03. 17.07. Agreement Not a Chapter 86-191. Laws of Florida. Development Agreement. The Developer and the Agency acknowledge, agree and represent that this Agreement, including, without limitation, any of the Exhibits, is not a development agreement as described in Sections 19-31, Chapter 86-191, Laws of Florida, codified as Sections 163.3220-163.3243, Florida Statutes. 17.08. Estoppel Certificates. The Developer and the Agency shall at any time and from time to time, upon not less than ten (10) days prior notice by another party hereto, execute, acknowledge and deliver to the other parties a statement in recordable form certifying that this Agreement has not been modified and is in full force and effect (or if there have been modifications that the said Agreement as modified is in full force and effect and setting forth a notation of such modifications), and that to the knowledge of such party, neither it nor any other Mediterralleall Village Project Del'elopment Agreemerrt 55 party is then in default hereof (or if another party is then in default hereof, stating the nature and details of such default), it being intended that any such statement delivered pursuant to this Section 17.08 may be relied upon by any prospective purchaser, mortgagee, successor, assignee of any mortgage or assignee OC the respective interest in the Project, if any, of any party made in accordance with the provisions of this Agreement. 17.09. Complete Agreement; Amendments. (a) This Agreement, and all the terms and provisions contained herein, including without limitation the Exhibits hereto, constitute the full and complete agreement between the parties hereto to the date hereof, and supersedes and controls over any and all prior agreements, understandings, representations. correspondence and statements whether written or oral, including the RFP and the Proposal. (b) Any provisions of this Agreement shall be read and applied in para materia with all other provisions hereof. (c) This Agreement cannot be changed or revised except by written amendment signed by all parties hereto. 17.10. Captions. The article and section headings and captions of this Agreement and the table of contents preceding this Agreement are for convenience and reference only and in no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way affect this Agreement or construe any article, section, subsection, paragraph or provision hereof. 17.11. Holidays. It is hereby agreed and declared that whenever a notice or performance under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal holiday observed in the City, it shall be postponed to the next following business day. 17.12. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not physically attached hereto shall be treated as if they are part of this Agreement. 17.13 . No Brokers. The Agency and the Developer hereby represent, agree and acknowledge that no real estate broker or other person is entitled to claim or to be paid a commission as a result of the execution and delivery of this Agreement, including any of the Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any or all of the Site, specifically including the conveyance of the Site by the Agency to the Developer. 17.14. Not an Agent. During the term of this Agreement, the Developer hereunder shall not be an agent of the City or the Agency, with respect to any and all services to be performed Mediterranean Village Project Developmellt Agreemellt 56 by the Developer (and any of its agents, assigns, or successors) with respect to the Project, and the Agency is not an agent of the Developer (and any of its agents, assigns, or successors). 17.15. Memorandum of Development Agreement. The Agency and the Developer agree to execute, in recordable form, on the Effective Date. the short form "Memorandum of Agreement for Development and Disposition of Property," the form of which is attached hereto as Exhibit "I f>," and agree, authorize and hereby direct such Memorandum to be recorded in the public records of Pine lias County, Florida, as soon as possible after execution thereof. The Agency shall pay the cost of such recording. 17.16. Public Purpose. The parties acknowledge and agree that this Agreement satisties. fulfills and is pursuant to and for a public purpose and municipal purpose and is in the public interest, and is a proper exercise of the Agency's power and authority under the Act. 17.17. No General Obligation. In no event shall any obligation of the Agency under this Agreement be or constitute a general obligation or indebtedness of the City or the Agency, a pledge of the ad valorem taxing power of the City or the Agency or a general obligation or indebtedness of the City or the Agency within the meaning of the Constitution of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds. Neither the Developer nor any other party under or beneficiary of this Agreement shall ever have the right to compel the exercise of the ad valorem taxing power of the City, the Agency or any other governmental entity or taxation in any form on any real or personal property to pay the City's or the Agency's obligations or undertakings hereunder. 17.18. Technical Amendments: Survey Corrections. In the event that due to minor inaccuracies contained herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to changes resulting from technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances which do not change the substance of this Agreement may be made and incorporated herein. The Chairman of the Agency is authorized to approve such technical amendments on behalf of the Agency, respectively, and is authorized to execute any required instruments, to make and incorporate such amendment to this Agreement or any Exhibit attached hereto or any other agreement contemplated hereby. 17.19. Term: Expiration: Certificate. (a) If not earlier terminated as provided in Section 13.05, the term of this Agreement shall expire and this Agreement shall no longer be of any force and effect (except for those matters which specifically survive such expiration) on the tenth (10th) anniversary of the Effective Date. Mediterralleall Village Project De~'elopmellt Agreemellt 57 (b) The Agreement Expiration Certificate shall be in such form as will enable it to be recorded in the public records of Pinellas County. Florida. Following execution by all of the parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer in the public records of Pine lias County. Florida, and the Developer shall pay the cost of such recording. 17.20. Effective Date. Following execution of this Agreement (and such of the Exhibits as are contemplated to be executed simultaneously with this Agreement) by the authorized officers of the Agency and by authorized representatives of the Developer following approval hereof by the Agency and the Developer and following the approval by the City and the Agency, respectively of the Interlocal Agreement, this Agreement (and any executed Exhibits) shall be in full force and effect in accordance with its terms and upon the recording of the Memorandum of Development Agreement as contemplated by Section 17.15 hereof. IN WITNESS WHEREOF, the parries hereto have set their hands and their respective seals affixed as of the day of , 2002. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA Brian J. Aungst, Chairperson Approved as to form: ATTEST: Pamela K. Akin, City Attorney Cynthia E. Goudeau, City Clerk THE BALK COMPANY, INC., By: , President ATTEST: By: Secretary (SEAL) MedilerrtJllea1l Village Projecl Developme1lt Agreemetrl 58 STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this _ day of , 2002, by BRIAN J. AUNGST and CYNTHIA E. GOUDEAU, Chairperson and City Clerk, respectively, of Community Redevelopment Agency of the City of Clearwater, Florida, They are personally known to me or have produced valid Florida drivers' licenses as identification. (SEAL) Printed/Typed Name: . Notary Public-State of Florida Commission Number: STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this ~ day of 2002, by and and , respectively of THE BALK COMPANY, INC. They are personally known to me or have produced a valid driver's license as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Conunission Number: Medi/trrcUleall Village Project Developme"t Agreeme"t 59 Exhibit "A" Exhibit" A-I" Exhibit" A-2" Exhibit" A-3" Exhibit "B" Exhibit "C" Exhibit "D" Exhibit "E" Exhibit "F" Exhibit"G" Exhibit "H" Exhibit "I" Exhibit" J" Exhibit "K" Exhibit "L" Exhibit "M" Development Agreement Exhibit List Project/Propaty Description Property Description Stage I Property Description Stage II Property Description Stage III Site Plan Special Warranty Deed (Form) Infrastructure Improvement Schedule License for Temporary Facility Infrastructure Improvement Completion Certificate (Form) Agreement Expiration Certificate Agreement Termination Certificate Memorandum of Agreement for Development and Disposition of Property List of environmental documents prepared by Danes & Moore/URS Property potentially subject to arsenic Restrictive covenant to meet alternative SCTL of 1.4 mg/kg for arsenic URS Scope of Work License and Escrow Agreement EXHIBIT A Legal Descriptions and Sketches for parcels: lA, IB, 2 &3 Parcel lA Begin at the Southeast corner of Lot 14, Block 1, Magnolia Park, as recorded in Plat Book 1, Page 70 of the Public Records of Hills borough County, Florida, of which Pinellas County was once a part; thence NOOo 17' 56"W along the East line of said Lot 14 and Lot 3, Block 1, of said Magnolia Park, 235.00 feet to a point on the apparent South right of way line of Cleveland Strcet as described by the survey map prepared for the City of ClealWater by Florida Dcsign Consultants. job number 212-07, dated 04/03/01; thence N89057' 12"E, along said apparent South right of way line of Cleveland Street 270.00 feet to a intersection of the East line of Lot 8, Block I, of said rvfagnolia Park and the West right of way line of Prospect Avcnue; thence soao 17'56"E along said \Vest right of way line of Prospect Avenue 97.87 fcet; thcnce Icaving said West right of way line East, 14.49 feet; thence South, 30.00 fcet; thence West, 1.t.J3 feet to a point on said West right of way line of Prospect Avenue; thcnce SOO l7'56"E, along said West right of way line of Prospect Avenue 107.14 feet to the Southwest corner of Lot 9, Block 1, of said Magnolia Park; thence S89057' l2"W, along the N0I1h right of way of Park Street, 54.00 feet to the Southeast comer of Lot 10, Block 1 of said Magnolia Park; thence NOao 17' 56"W, along the East line of said Lot 1 0, 132.50 feet to the Northeast corner of said Lot 10, thence S89057' 12"W, 202.00 feet; thence SOOO 17' 56"E, 13 2.50 feet to the North right of way line of Park Street; thence S89057' 12"W nlong said North right of way line of said Park Street 14.00 feet to the point of beginning. (Containing 37102.27 S.F., M.O.L.) S:\Projects\Downtown Pond - #98-01 16-EN\legals for plat and lease.doc .... 4J 4J e: (/)0 010 z. <a:: -'(/) ~ ~ () ~ rr o 2 L .... -I o -I J -L - J.\ 'V l03dSO~d SOOTH 30.00' ~ . ~o ....C! r.:~ IllI III 2 ... o -' "--"--'..--...-- :: I .... o -I " --" --" . --- . . ~ ... o -I I " --" --" . . ---- . . ~ ... 9 .., ... o -' :! .... 9 '---'.--... . ---..--..--..-- c-. ... o -' "S ~, ~ ~i I ~~ ;.. : co ~~ 1- . . - . . - . . _ .<:S, :..i.. . I Cl' "- "--"---.. .... 4J 4J ~ (/) ::..:: Q: < a. ... o. Co (JJl() <(' (JJ 1/ .- .- -1~--- W .. <.> .. V ""'cu_ ......0 <('00 o.zC/) ..- ~ (j) ~ >.. Q) > "'- :J (JJ o ..- ..- > w cr Parcell B Begin at the Southeast corner of Lot 8, Block 2, Magnolia Park as recorded in Plat Book I, Page 70, of the Public Records of Hills borough County, Florida, of which Pinellas County was once a part, thence NS905T l2"E along the South line of said Lot 9 and Lot 10, Block 2, of said Magnolia Park, 101.90 feet, to the Southeast corner of said Lot 10; thence SODa IT 56"E, along the East line of Lot 11, Block 2 of said Magnolia Park, 132.50 feet to the southeast corner of said Lot 11; thence continue SODa 17' 56"E, 8.16 feet; thence S89042'04"W, 21.42 feet; thence SOoo02'4S"E, 22.38 feet; thence S89057' l2"W, 46.67 feet; thence SOoo02'4S"E, 29.37 feet to the South right of way line of Park Street; thence S8905T l2"\V, along the said South right of way I ine of Park Street, 63.71 feet; thence N23029'22"\V, 34.41 feet; thence S66030'38"W, 14.94 feet; thence N23029'22"W, 11.89 feet; thence N83053 'OO"W, 188.67 feet, thence N0600TOO"E. 3.23 feet to the North right of way line of said Park Street; thence S89057' 12"W, along said North right of way line of Park Street, 5.08 feet; thence S81018'37''\V, 157.33 feet; thence N08041 '23"W, 46.67 feet; thence N81018'37"E, 8.85 feet to the East right of way line of Prospect Avenue;" thence NOOO 17' 56"W, along the said East right of line of Prospect Avenue, 20.22 feet; thence S8Io1S'37"W, 1.05 feet; thence N08041 '23"W, 46.67 feet; thence N8l 0 18 '37"E, 7.93 feet to the said East right of way line of Prospect Avenue; thence NOool7'56"W, along said East right of way line of Prospect Avenue, 143.79 feet to a point on the apparent South right of way line of Cleveland Street as described by the survey map, prepared for the City of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/0 I; thence N89057' 12"E, 408.00 feet along said apparent South right of way line of Cleveland Street to the West line of said Lot 9; thence SOooIT56"E. along the West line of said Lot 9, 102.50 feet, to the point of beginning. (containing 120739.82 S.F., M.O.L.) S:\ENGIN\Projects\Downtown Pond - #98-0 lI6-EN\legals for plat and lease. doc o C/) c: ., ~ ':< ~ 6i PROSPECT A \IE :j <>>. ....... ~.~ / I u>z-o OO}> 0......,., - (t) AJ (t) .. C") " fT1 ->.~r- v::r -.--a. I/C/)cn 0') Ch' 0::1 .0 ... i III i1 ~ -I I I ~ ~ 11I,- "> ;Vz 010 0(1) i1 fT1 fT1 -I 2 I . 0 i I JJ .'-..-.. -f I ---.. - I I I I I Parcel 2 Begin at the Northwest corner of Lot 5, Block 3, i'vlagnolia Park, as recorded in Plat Book I, Page 70, of the Public Records of Hills borough County, Florida, of which Pinellas County was formerly a part, also being a point on the SOllth right of way line of Park Street; thence N89 '57' l2"E, along said South right of way line of Park Street, 33.58 feet; thence leaving said South right of way line of Park Street, NOoo02'48"W, 29.37 feet; thence NS9057' l2"E, 46.67 feet; thence SOoo02'4S"E, 29.37 feet, to a point of intersection of the East right of way line of Ewing A venue and said South right of way line of Park Street; thence SOOo 17' 56"E, along said East right of way line of Ewing Avenue, 65.30 feet to a point on the centerline of a vacated alley as recorded in O.R. Book 6228. Page 113 I, of said Public Records; thence N89057' l2"E, along said centerline, 139.40 feet; thence SOOo 16' l7"E, 199.70 feet, to the North right of way line of Pierce Street; thence S89057' l2"W, along the said North right of way line of Pierce Street, 179.76 feet to the intersection of the West right of way line of Ewing Avenue, thence NOo020'23"W, along the said East right of way line of Ewing Avenue, 36.45 feet; thence S840I0'05"W, 57.03 feet, thence N05049'5S"W, 126.00 feet; thence N23029'22"W, 8.83 feet, thence S66030'3S"W, 4.40 feet; thence N23029'22"W, 126.00 feet; thence N66030'3S"E, 46.67 feet; thence S23029'22"E, 34.41 feet to a point on the said South right of way line of Park Street; thence N89057' l2"\V along said South right of way line of Park Street, 30.12 feet to the point of beginning. (containing 59327.88 S.F., M.O.L.) S:\ENG1N\Projects\Downtown Pond - #98-0 lI6-EN\legals for plat and lease.doc ~ I I ~I I I ... 0 ... . -J 0 :r .5 -J . ~ I 2! I I ~ I I ... ... 0 ,.. ~ 0 .... .,. ,.. -J ,.. ... '", ... VI i : i 9 I " I a I ... ..: ., . ~. ~ 0 ...... I ~ I I .<( I- lul I ~ w S Z . ~. b W e: f ... -+ II) . I ~ I II:: <( I a. CIt- . .,. Z tJ on I ~ a.g :> . i! -..... :2 a:i a> I ~a: I::: . ~ iii ~ I '" :2 I l- I W W m I w u f5 it ;::.:, Q) ;:. L.. :J C/J o I I ~jD I ~ ... UO ... 0 j~b 0 I .... oJ I ilj. ~:r: a~ f< I -"-"-j ~i/lgR ~a M I ~8~ I I S" a. I "'~a ~ ~r> "'3 0') i: ... I 0 a. < .... <~~ I .< g -:' i/ ~ID I G: I ..-..-{ r" I I N I I - - . . "[-"-"1--- I-Il tJ tl" ~ .,. IJ'J - w! :i~ w 5:11 :! ... 3 ~ >- o ... .... 0' .... .,. N on I l- t::: ~ III ~ ~ .-~ "~'~"""" "'. '- .... ...>oo,__""~'''"'. -.. ,,,,,,, Parcel 3 Begin at the Northwest corner of Lot 9, Tack and Warren Subdivision, as recorded in Plat Book 21, Page 48, of the Public Records of Pine lias County, Florida, also being a point on the South right of way line of Park Street; thence N89057'12"E along said South right of way line, 160.00 feet; to the Northeast corner of Lot 11, of said Tack and Warren Subdivision, also being a point on the West right of way line of Prospect Avenue; thence SOool7'56"E, along said West right of way line of Prospect Avenue, 110.00 feet, to the Southeast corner of said Lot II; thence S89057' l2"\V, 110.00 feet to the SOllthwest corner of Lot 10 of said Tack and \Varren Subdivision; thence SOool7'56"E, 10.00 feet; to a point on the centerline of a vacated alley as recorded in O.R. Book 4616, page 1440, of said Public Records; thence 589057' l2"\V, along said centerline, 50.00 feet; thence NOQol7'56"\V, 10.00 feet, to the Southwest corner of said Lot 9; thence continue NOQol7'56"W along the West line of said Lot 9, 110.00 feet to the point of beginning. (containing 18100.18 S.F., M.O.L.) S:\Projects\Downtown Pond - #98-0l16-EN\legals for plat and lease.doc I I I L..-. ~ . .._..J.. ,... o ... . UlZ-o nO}> 0,........., - (l) ;'V ~ .. (') rrl __-ir .:J II 00' LJ (J1 00' 0:3 .0 ,..... .0- U) c ., < (l) ":< ,... o ... N I I I I ..- I - I < I > r> J ,... o ... l.o ,.. o ... .. ,.. o ... (,It ._ I ", l ,... o ... QI r- o ... ~ > " 51 r- o ... 'ol :; ... I -'. I r- o ... 01 ~ . . _ . . _ . . _ M.9li.LI.OONI . . I ,00"01 r- o . ... r- o ... . :; ... ~ PROSPECT AVE. 2 o D -I I ..~ ~i;b - p I~i =;c., "0 > ~ ^ Vl ~ fTI fTI -i EXHIBIT A-I Legal Descriptions and Sketches for parcel: .IA Parcel lA Begin at the Southeast corner of Lot 14, Block 1, Magnolia Park, as recorded in Plat Book 1, Page 70 of the Public Records of Hills borough County, Florida, of which Pinellas County was once a part; thence NOOo 17' 56"W along the East line of said Lot 14 and Lot 3, Block 1, of said Magnolia Park, 235.00 feet to a point on the apparent South right of way line of Cleveland Street as described by the survey map prepared for the City of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/01; thence N89057' 12"E, along said apparent South right of way line of Cleveland Street 270,00 feet to a intersection of the East line of Lot 8, Block I, of said Magnolia Park and the West right of way line of Prospect Avenue; thence SOool7'56"E along said West right of way line of Prospect Avenue 97.87 feet; thence leaving said West right of way line East, 14.49 feet; thence South, 30.00 feet; thence West, 14.33 feet to a point on said West right of way line of Prospect Avenue; thence SOO 17' 56"E, along said West right of way line of Prospect Avenue 107.14 feet to the Sc .Ilwest corner of Lot 9, Block I, of said Magnolia Park; thence S89057' lZ"W, along tr l~ .lIth light of way of Park Street, 54.00 feet to the Southeast corner of Lot 10, Block 1 of said Magnolia Park; thence NOool7'56"W, along the East line of said Lot 1 0, 13Z.50 feet to the Northeast comer of said Lot 10, thence S89057' 12"W, 202.00 feet; thence SOool7'56"E, 132.50 feet to the North right of way line of Park Street; thence S89057' lZ"W along said North right of way line of said Park Street 14.00 feet to the point of beginning. (Containing 371OZ.Z7 S.F., M.O.L.) S:\Projects\Downtown Pond - #98-0 lI6-EN\legals for plat and lease. doc C/)z-o (0)> 0.-...,., -Cb"'V Cb..() . . l"TI ~~r- -.~ "Ch)> tnCh O::J .0 .- o Ch c: ., < Cb ":c: ;0 rrt < ~ - ~ to 'd ~ :tl T 'c' - l:1~' Ii !:n .-a :b5 ,~ ~.... ~=tl- l;l(')uo ...PJ <:I t; i7 "-"-.. -L '. --.. r- o .... '-J 1J > ;0 ^ l/) iJ ", ", -i -"-"-.. "-""--"-" r- o .... . r- o .... u (; .... t:: '. --" "-"-.. r- o .... ;:; . . --- . "--"- I r- o .... :: --"-"-"---" r- o .... o g: ~o .<11 8~ "N . . .OO'OS: HLnos PROSPECT A~ r - -, 1 E! ~ z o 1) -f I () f;l rii l/)r- .> ?Oz 010 OCJ) il ITI ITI -i EXHIBIT A-2 Legal Descriptions and Sketches for parcel: IB Parcell B Begin at the Southeast corner of Lot 8, Block 2, Magnolia Park as recorded in Plat Book I, Page 70, of the Public Records of Hills borough County, Florida, of which Pinellas County was once a part, thence NS9057' l2"E along the South line of said Lot 9 and Lot 1 0, Block 2, of said Magnolia Park, 10 1.90 feet, to the Southeast corner of said Lot 10; thence SOool7'56"E, along the East line of Lot II, Block 2 of said Magnolia Park, 132.50 feet to the southeast corner of said Lot 11; thence continue SOool7'56"E, 8.16 feet; thence S89042'04"W, 21.42 feet; thence SOoo02'48"E, 22.38 feet; thence S8905T 12"W, 46.67 feet; thence SOoo02'4S"E, 29.37 feet to the South right of way line of Park Street; thence S89057' 12"W, along the said South right of way line of Park Street, 63.71 feet; thence N23029'22"W, 34.41 feet; thence S66030'38"W, 14.94 feet; thence N23029'22"'vV, 11.89 feet; thence NS3053 'OO"W. 188.67 feet, thence N0600TOO"E, 3.23 feet to the North right of way line of said Park Street; thence S8905T12"W, along said North right of way line of Park Street, 5.08 feet; thence S81018'37"W, 157.33 feet; thence N08041 '23"W, 46.67 feet; thence N81018'37"E, 8.85 feet to the East right of way line of Prospect Avenue;' thence NOOo IT 56"W, along the said East right of line of Prospect Avenue, 20.22 feet; thence S81018'37"W, 1.05 feet; thence N08041 '23"W, 46.67 feet; thence N81018'37"E, 7.93 feet to the said East right of way line of Prospect Avenue; thence NOool7'56"W. along said East right of way line of Prospect Avenue, 143.79 feet to a point on the apparent South right of way line of Cleveland Street as described by the survey map, prepared for the City of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/01; thence N8905T 12"E, 408.00 feet along said apparent South right of way line of Cleveland Street to the West line of said Lot 9; thence SOool7'56"E, along the West line of said Lot 9,102.50 feet, to the point of beginning. (containing 120739.82 S.F., M.O.L.) S:\ENGIN\Projects\Downtown Pond - #98-0 lI6-E1\l\legals for plat and lease.doc f r t I- '.-.. f It ~ llJ .. - f s "'", f 0 ~ ~l ~.:. - Z co ,~ c:i ~ co (1,' ~. .. 0 '"" f I >., <I.l > '- f :l en f 0 ~ 0 Co .~ to men" ..- .- ..... ..c:~ w -11-"- w lU e: () .. Q; III ~Q)- t <t:oB 0..2(1) ..... w w t! III 0 0\0 Zci <. -'Ill ~ d f I I I jJ~ ~,..; ... r 3-\v l03dSOIJd i EXHIBIT A-3 Legal Descriptions and Sketches for parcels: 2&3 Parcel 2 Begin at the Northwest corner of Lot 5, Block 3, Magnolia Park, as recorded in Plat Book I, Page 70, of the Public Records of Hills borough County, Florida, of which Pinellas County was formerly a part, also being a point on the South right of way line of Park Street; thence N89057'12"E, along said South right of way line of Park Street, 33.58 feet; thence leaving said South right ofw3.Y line of Park Street, NOoo02'48"W, 29.37 feet; thenceN89057'12"E. 46.67 feet; thence SOoo02'48"E, 29.37 feet, to a point of intersection of the East right of way line of Ewing Avenue and said South right of way line of Park Street; thence SOOo 17' 56"E, along said East right of way line of Ewing Avenue, 65.30 feet to a point on the centerline ofa vacated alley as recorded in O.R. Book 6228, Page 1131, of said Public Records; thence N89057' l2"E, along said centerline, 139.40 feet; thence SODa 16' 17"E, 199.70 feet, to the North right of way line of Pierce Street; thence SS9057' l2"W, along the said North right of way line of Pierce Street, 179.76 feet to the intersection of the West right of way line of Ewing Avenue, thence NOoo20'23"W, along the said East right of way line of Ewing Avenue, 36.45 feet; thence S84010'05"W, 57.03 feet, thence N05049'5S"W, 126.00 feet; thence N23029'22"\V, 8.83 feet, thence S66030'38"W, 4.40 feet; thence N23029'22"W, 126.00 feet; thence N66030'38"E, 46.67 feet; thence S23029'22"E, 34.41 feet to a point on the said South right of way line of Park Street; thence N89057' l2"W along said South r:ght of way line of Park Street, 30.12 feet to the point of beginning. (containing 59327.88 S.F., M.O.L.) S:\ENGIN\Projects\Downtowll Pond - #98-0 lI6-EN\legals for plat and lease. doc ~ J ~I I I 0 I .. ~ .. :r .5 I ; I ~ I 2! I I .. .. 0 ,.. ~ 0 ... .. .... ... N .... .. ... 0 I I i ~ i ... u a I 4. .... .. ~ :!: 0 . q' I ~ I I I c..i I I ~ I- Z .. w 5 . ~. ;, w eE J .. -+ ~ . ~ I Q: < "'- I Q.. . .. z ." ~ u" 5 ":~ ~ --' ::II ai If> I :r:o.: < ! iii on IX g I ':' .... w w ~ ~ W <.J a: w a: >, Q.) > I... :::J (f'J o I .... I 0_ Co (f'J (Q I (f'J 1/ C'\I .- I .c:- -1~"'" W .. I U"(1) ~~8 :1 Q.zC/) 9: I I ~ ... e .... ! l- e ... ... N '" I ,... W ~ II) :.c a: < a. I I . . . . "!-..-..t-.. tif W,.: ~ ; II) - W ! <.J~ 5 .. a: la .-~ ._-, ", "'" to .""'" ...._u....,..."..._, _" ...,,,, Parcel 3 Begin at the Northwest corner of Lot 9, Tack and Warren Subdivision, as recorded in Plat Book 21, Page 48, of the Public Records of Pine lias County, Florida, also being a point on the South right of way line of Park Street; thence N89057' 12"E along said South right of way line, 160.00 feet; to the Northeast corner of Lot II, of said Tack and Warren Subdivision, also being a point on the West right of way line of Prospect Avenue; thence SOool7'56"E, along said \Vest right of way line of Prospect Avenue, 110.00 feet, to the Southeast comer of said Lot II; thence S89057' 12"\V, 110.00 feet to the Southwest corner of Lot 10 of said Tack and Warren Subdivision; thence SOooI7'56"E, 10.00 feet; to a point on the centerline ofa vacated alley as recorded in O.R. Book4616, page 1440, of said Public Records; thence S89057' 12"W, along said centerline, 50.00 feet; thence NOoo17'56"W, 10.00 feet, to the Southwest comer of said Lot 9; thence continue NOQol7'56"W along the West line of said Lot 9,110.00 feet to the point of beginning. (containing 18100.18 S.F., M.O.L.) S:\Projects\Downtown Pond - #98-01 16-EN\legals for plat and lease.doc tii ) ~lA sj _.. - ..' .N. ..- ~r" -..-.. ~ -"~"-"T" ~ . . ~ ............ N (0 ............ o ~ ) ; ) ) , 1 .. ,--- I ~ o -< ~ o -< .... r- o -< N ~ o -< ~ " 6 -< .... o ..... ell . . . _ . . _ . . _ .o,#;.LI.OONI .... . . - . . I .OO'OL o . -4 .... o ..... ....1 o :1 N . - c.. PROSPECT A~. 2 o IJ ~ :I ~I~ ;b ~ !) I~i ~;I.o " > :;0 ^ en :il ,." ,." -l :. = 0:: UJ t- <t ~ 0:: <t UJ ....J (j l- t) UJ J o 0:: n.. ,., " 'G:: - = ~ .r -I ~I . I ~; ;1 r :;, . =1 " i ~ ! t ;: ~~ ~ ",,-. >- l- t) e::: UJ I- Z UJ (j ;- ~, : ~ ~ " ~ l.. :. :. - ~ - : 0 ~ -~'. ~ ~ = <: . , ..:: .. ~.: ~!; \,;J~ :.. LU _ '" = ~ r t. :' , . : :- : y. .. ... :; Co t ~ ~l ~ 0:; :: = :- = :: :: - :: :. ~ H > <: ~~. .~ ~ ,,-- 1 . ~ Z ~ ...-..oj - ~ ........ ~ ~ -. ~ ...-I .. - S '" ri -- 0:; .... nil "'" '*'_ ~ - - '. ~ - ~ ~ c: - I c: ~ . c: .. .. . .. ~ ~ . .. . - c . - '" ! It EXHIBIT "C" SPECIAL WARRANTY DEED COMMUNITY REDEVELOPMENT AGENCY, also known as THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, a body politic and corporate of the State of Florida created pursuant to Part III, Ch. 163 Fla. Stat., whose address is 112 S. Osceola Avenue, Clearwater, Florida 33756, hereinafter called the GRANTOR, for and in consideration of Ten and 00/100 Dollars ($10.00), and other valuable consideration the receipt of which is hereby acknowledged, does bargain, sell. convey and grant unto THE BALK COMPANY, INC., a Florida corporation, whose address is , hereinafter called The GRANTEE, the federal tax identification number of which is: , its successors and assigns forever, the real property, situate, lying and being in Pinellas County, Florida, more particularly described in EXHIBIT "An attached hereto. TAX PARCEL 1.0. # Subject to taxes for current year and to those matters listed in EXHIBIT "_" attached hereto. TO HAVE AND TO HOLD unto the said GRANTEE, its successors and assigns forever, and said GRANTOR warrants and shall defend the title against the lawful claims of all persons claiming by, through, or under it, but against none other. TOGETHER with all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining. IN WITNESS WHEREOF, GRANTOR has caused these presents to be executed in its name by its Chairman this day of I 2002. [SIGNATURE PAGE FOLLOWS] PREPARED BY AND RETURN TO: C-1 EXHIBIT "0" MEDITERRANEAN VILLAGE PUBLIC WORKS INFRASTRUCTURE IMPROVEMENTS SCHEDULE Public Works Administration will accomplish the following items: 1. Vacate Park Street from Ewing Avenue to Prospect Avenue, including one small parcel east of Ewing Avenue. 2. Vacate Ewing Avenue from Pierce Street to Park Street. 3. Vacate three parcels on Prospect Avenue north of Park Street. 4. Remove asphalt pavement and base and City water line from vacated Park Street. 5. Remove asphalt pavement and base from vacated Ewing Avenue. 6. Coordinate undergrounding of other utilities (Florida Power, Verizon Telephone) in vacated Park Street and Ewing Avenue. 7. Relocate sanitary sewer on Ewing Avenue and Park Street east of Ewing Avenue. 8. Construct downtown lake. 9. Construct downtown lake park amenities. The above items will be completed based on the following schedule: Item Completion Date 11/15/01 11/15/01 01110/02 03/15/02 03/15/02 04/10/02 03/15/02 03/31/03 03/31/03 Vacate Park Street Vacate Ewing Avenue Prospect Avenue Vacations Remove Asphalt and Water Line from Park Street Remove Asphalt from Ewing Avenue Coordinate Other Utility Undergrounds Relocate Sanitary Sewer Construct Downtown Lake Construct Downtown Lake Amenities Exhibit E LICENSE AGREEMENT THIS LICENSE AGREEMENT, made and entered into this day of , 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA (CRA), a public body corporate and politic of the State of Florida, created pursuant to Part Ill, Chapter 163, F.S., hereinafter referred to as "Licensor," and THE BALK COMPANY, INC., hereinafter referred to as "Licensee": WHEREAS, Licensor is the owner of the fee simple title to the area described in Exhibit 1 and hereinafter referred to as the "Premises"; and WHEREAS, Licensor is willing to grant a license to Licensee to use the Premises for the purposes stated in this agreement; NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS: 1. The term of this agreement is for 120 days from the Effective Date of the Agreement for Development and Disposition of Property (Mediterranean Village in the Park) between Licensor and Licensee. Reference to the Executive Director throughout this agreement refers to Licensor's Executive Director or designated agent. The term "Licensor" refers to the eRA and any act to be taken by the Licensor under this agreement must be taken by the eRA Trustees. 2. The Licensor may cancel this agreement at any time by giving 6 days prior written notice to the Licensee, or any of its agents. This right of termination is to be considered in addition to the right of termination set out in this agreement. 3. The Licensee shall have the right to place and maintain a temporary sales office facility for the purpose of marketing the construction project for the Mediterranean Village in the Park. Any other use of the premises described is prohibited unless specifically authorized by Licensor. 4. The Licensee is responsible for the cleanliness and maintenance of the premises. 6. The hours of operation for the authorized use shall be as agreed to between the parties. 6. The Licensee hereby covenants and agrees to pay all costs associated with the maintenance of the premises and any improvements thereon necessary for such use. 7. The Licensee hereby covenants and agrees to make no unlawful, improper, or offensive use of the Premises and shall meet all relevant code requirements. Licensee shall not permit any other business to be operated in or from the Premises. Licensee further covenants and agrees not to assign, pledge, hypothecate, or sublet this agreement in whole or in part. This paragraph shall be construed to include a prohibition against any assignment or subletting by operation of law. 8. Licensee agrees that it will promptly pay all ad valorem real property taxes and personal property taxes that may be assessed against the Premises during the 2 term of this agreement. Licensee further agrees that it will pay any other taxes, including but not limited to, licenses and permits relating to the operation of the business conducted on the Premises, which are required by law. 9. Licensee hereby covenants and agrees to pay all bills for electrical current, gas, water, heat, refuse collection, and other services to the Premises when due. 10. Licensee is not authorized to make any structural improvements or changes to the premises unless expressly agreed to in writing by Licensor. 11. Licensee will be responsible for picking up and disposing of all trash, garbage, and other debris, whether or not initiated from the sales of the premises. Licensee is authorized to place trashcans in the immediate area of the Premises, said trashcans to be maintained by the Licensee. 12. Licensee agrees to indemnify and hold Licensor and its employees harmless from and against any and all claims, demands, causes of action or lawsuits of whatever kind or character arising directly or indirectly out of this agreement and/or performance hereof. This indemnity clause includes, but is not limited to, claims, demands, causes of action or lawsuits for damages or injuries to goods, wares, merchandise and property and/or for any bodily or personal injury or loss of life in, upon or about the Premises or the surrounding premises the Licensee is required to maintain or which the Licensee uses in connection with the business operated at, on or from the Premises. All personal property, including trade fixtures, in the Premises shall be at the risk of Licensee, and Licensor shall not be liable for any damage to such property arising from any cause. Licensee agrees to investigate, handle, provide defense for and 3 4 alcoholic beverages, if Licensee at any time during the term of this agreement obtains a license to serve any type of alcoholic beverages. (f) The eRA, as Licensor, shall be named as an additional insured. 14. If at any time during the term of this agreement, the premises or any improvement is damaged or destroyed, Licensee agrees to immediately repair or remove damaged improvements and restore premises to its original condition at the Licensee's risk and expense. 15. Licensee shall secure prior written approval from Licensor for modifications or remodeling of existing facilities or for the construction of any new facilities. 16. Licensee shall, at its expense, at all times during the terms of this agreement keep the Premises and all improvements and facilities thereon in good order, condition, and repair. It is specifically understood by Licensee that the Licensor has the right to inspect the premises and improvements at any time to ensure that the premises and improvements are indeed in good order, condition, and repair. Upon the termination or expiration of this agreement, Licensee shall repair any and all damages to the premises. 17. Upon the termination or expiration of the agreement for whatever cause, the Licensee shall have the privilege at its own expense of removing its equipment, signs, insignia, and other indicia of its tenancy or use. 18. Licensee agrees to indemnify and save harmless the Licensor by reason of any mechanic's lien which may be asserted as a claim against the property, and to furnish Licensor a good and sufficient bond signed by a reputable bonding company 5 doing business in Florida, which bond shall be in an amount equal to 100 percent (100%) of the cost of construction of the contemplated improvements to the demised premises. 19. Notices hereunder shall be given only by registered letter and shall, unless otherwise expressly provided, be deemed given when the letter is deposited in the mail, postage prepaid, addressed to the party for whom intended at such party's address first herein specified or to such other address as may be substituted therefore by proper notice hereunder. Notice to be provided to Licensor and Licensee as stated below: As to Licensor: Community Redevelopment Agency City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 As to Licensee: The Balk Company, Inc. 20. No sign of any type will be posted, erected, hung or otherwise placed in view of the general public so as to advertise any product or identify the premises unless permitted by the City of Clearwater Code of Ordinances, as they now exist or as they may be amended, and unless authorized and approved by the City. 21. In the event the Licensor retains an attorney to enforce any of the provisions of this agreement or renewals of or addenda to this agreement, or to effect the enforcement of any legal right of the Licensor against the Licensee, the Licensee 6 agrees to pay the Licensor all costs of said enforcement reasonably incurred, including court costs and reasonable attorney's fees. IN WITNESS WHEREOF, this agreement is executed as of the date first above written. Licensor: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA By: Brian J. Aungst Chairperson Approved as to form: Attest: Cynthia E. Goudeau City Clerk Pamela K. Akin City Attorney Licensee: THE BALK COMPANY, INC. 7 EXHIBIT A 8 Exhibit 1 Parcel1.~ Begin at the Southe3st corner of Lot 14, Block 1, Magnolia Park, as recorded in Plat Book 1, Page 70 of the Public Records of Hills borough County, Florida, of which Pinellas County was once a part; thence NOao IT 56"W along the E:lSt line of said Lot 14 and Lot 3, Block 1, of said Magnolia Park, 235.00 feet to a point on the apparent South right of way line of Cleveland Street as described by the survey map prepared for the City of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/01; thence N89057' 12"E, along said apparent South right of way line of Cleveland Street 270.00 feet to a intersection of the East line of Lot 8, Block 1, of said Magnolia Park and the \Vest right of way line of Prospect Avenue; thence SOooI7'56"E along said \Vest right of way line of Prospect Avenue 97.87 feet; thence leaving said West right of way line East, 14.49 feet; thence South, 30.00 feet; thence West, 14.33 feet to a point on said \Vest right of way line of Prospect Avenue; thence SOO 17' 56"E, along said West right of way line of Prospect Avenue 107.14 feet to the Southwest corner of Lot 9, Block 1, of said Magnolia Park; thence S89057' 12"\V, along the North right of way of Park Street, 54.00 feet to the Southeast comer of Lot 10, Block 1 of said ~lagnolia Park; thence NOool7'56"W, along the East line of said Lot 10, 132.50 feet to the Northeast corner of said Lot 10, thence S89057' 12"W. 202.00 feet; thence SOool7'56"E, 132.50 feet to the North right of way line of Park Street; thence S89057' 12"W along said North right of way line of said Park Street 14.00 feet to the point of beginning. (Containing 37102.27 S.F., M.O.L.) S:\Projects\Downtown Pond - #98-0116-EN\1egals for plat and lease. doc ~ &.oJ &.oJ Cl:: ~ t/)o otO z. <0; ....Jt/) ~ &.oJ ....J U Z l- II o Z 1 .... .... o -J --L - ~ V l03dSO~d SOU'7ll 30.00' 2 ... o ... . . '0- . . - . . _ . . _ . . _ ,.. :: ... o .... " -" ---" . --" ... - ... o -I "-"--. " --" :::? ... o .... .., ... o ... :! t- o ... ..--...--....--.. "-'0--'..--- '" ~ "f - ... .. ~f1;S : ~;I 9~ ~~. t:j ~ '._..-.._c;:).~.. ~ ... o ... . . ---. . "-.. I I I J .~ ~ "0 " C! on .. Co II'l III III ~ &.oJ 4J ~ t/) ~ Cl:: <: a. >; Q) > ~ ::l CI) o ...... o C:o Cl)ll) <:CI)/1 -.- ....J~~ lLJ .. <..> .. CU ,..,Q)- .............0 <:00 a..ZU) .. ~ 0') ~ .- .- > W cr EXHIBIT F INFRASTRUCTURE IMPROVEMENTS COMPLETION CERTIFICATE [Mediterranean Village in the Park] This Infrastructure Improvements Completion Certificate ("Certificate") is made this _ day of , 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL 33756, and THE BALK COMPANY, INC., a Florida corporation (the "Developer"), whose address is This Certificate pertains to an Agreement for Development and Disposition of Property (Mediterranean Village in the Park), by and between the Agency and the Developer, dated as of , 2002 (the "Development Agreement"), which provides, among other things, for the sale of property within a project site as described in Exhibit "A" attached hereto and made a part hereof and the granting of certain easements (the "Property Site") for the development and construction of the Infrastructure Improvements and the Mediterranean Village in the Park Project, as same are defined in the Development Agreement. As provided in Section 5.05 of the Development Agreement, the construction and installation of the Infrastructure Improvements have been completed substantially in accordance with the requirements of the Development Agreement and such improvements are substantially complete. The parties hereto acknowledge and agree that such Infrastructure Improvements have been so completed and have executed this Certificate as conclusive determination of such completion and satisfaction of the Agency's obligation under the Development Agreement to construct and install the Infrastructure Improvements. A copy of the fully-executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. A copy of the Infrastructure Improvements Plans and Specifications is on file with the City Engineer, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the _ day of , 2002. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA By: Brian J. Aungst, Chairperson ATTEST: By: Ralph Stone, Executive Director o THE BALK COMPANY, INC. By: , as Its (SEAL) ATTEST: By: , as Its Secretary STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this day of , 2002, by Brian J. Aungst, Chairperson of the Community Redevelopment Agency of the City of Clearwater, a public body corporate and politic of . the State of Florida, on behalf of the Agency. He is personally known to me or has produced a valid driver's license as identification. (SEAL) PrintedlTyped Name: Notary Public-State of Florida Commission Number: . . STATE OF FLORIDA COUNTY OF PINELLAS day of of The Balk He is personally The foregoing instrument was acknowledged before me this , 2002, by , Company, Inc., a Florida corporation, on behalf of the corporation. known to me or has produced a valid driver's license as identification. (SEAL) Printedrryped Name: Notary Public-State of Florida Commission Number: . EXHIBIT "G" AGREEl\lENT EXPIRATION CERTIFICATE [Mediterranean Village in the Park] This Agreement Expiration Certificate ("Certificate") is made this _ day of , _, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency"), whose address is 112 S. Osceola A venue, Clearwater, FL 32521, and THE BALK COMPANY, INC., a Florida corporation (the "Developer"), whose address is , FL . This Certificate pertains to an Agreement for Development and Disposition of Property (Mediterranean V illage in the Park), by and between the Agency and the Developer, dated as of , 2002, (the "Development Agreement"), which provides, among other things, for the sale of property within a project site as described in Exhibit "A" attached hereto and made a part hereof for the development and construction of the Mediterranean Village in the Park Project, as same is defined in the Development Agreement. The Development Agreement has expired in accordance with its own terms as of , and is no longer of any force or effect, and that the Mediterranean Village in the Park site is no longer subject to any restriction, limitation, or encumbrance imposed by the Development Agreement. This Certificate has been executed by the parties to the Development Agreement as provided in Section 17.19 thereof and constitutes a conclusive determination of satisfactory completion of all obligations under such Agreement and that the Development Agreement has expired, except for those matters which survive as noted above. A copy of the fully-executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola A venue, Clearwater, Florida, which is available for review and copying by the public. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the _ day of G-l (SEAL) ATTEST: By: ,~ Its: Executive Director (SEAL) ATTEST: By: Its: Secretary . as COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA By: Its Chairman . as THE BALK COMPANY, INC. By: Its _' as 0-2 STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this day of by , Chairman of the Community Redevelopment Agency of the City of Clearwater, a public body corporate and politic of the State of Florida, on behalf of the Agency. He is personally known to me or has produced a valid driver's license as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: STATE OF FLORIDA COUNTY OF PINELLAS The foregoing , , by on behalf of the corporation. license as identification. instrument was acknowledged before me this day of of The Balk Company, Inc., a Florida corporation, He is personally known to me or has produced a valid driver's (SEAL) Printed/Typed Name: Notary Public-State of Florida Conunission Number: G-3 EXIDBIT "H" AGREE~1EI"T TERl\IINA TION CERTIFICATE [1\'lediterranean Village in the Park] This Agreement Termination Certificate ("Certificate") is made this _ day of . _, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency"), whose address is 112 S. Osceola A venue, Clearwater. FL 32521, and THE BALK COMPANY, INC., a Florida corporation (the "Developer"), whose address is This Certificate pertains to an Agreement for Development and Disposition of Property (Mediterranean Village in the Park Project), by and between the Agency and the Developer, dated as of , 2002 (the "Development Agreement"), which provides, among other things, for the sale of property within a project site as described in Exhibit "A" attached hereto and made a part hereof for the development and construction of the Mediterranean Village in the Park Project, as same is defined in the Development Agreement. The Development Agreement has terminated in accordance with its own terms as provided in Section 13.05 thereof as of , and is no longer of any force or effect except for those provisions which expressly survive termination. This Certificate has been executed by the parties to the Development Agreement as provided in Section 13.06 thereof and constitutes a conclusive determination that the Development Agreement has been terminated, the rights, duties and obligations of the parties hereto have been terminated and released (subject to those surviving provisions) and the Mediterranean V ill age in the Park is no longer subject to any restrictions, limitations or encumbrances imposed by the Development Agreement. A copy of the fully-executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the _ day of COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA H-l (SEAL) ATTEST: ~: ,~ Its: Executive Director (SEAL) ATTEST: By: Its: Secretary , as By: Its Chairman , as . THE BALK COMPANY, INC. By: Its , as H-2. STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged. before me this day of by , Chairman of the Community Redevelopment Agency of the City of Clearwater, a public body corporate and politic of the State of Florida, on behalf of the Agency. He is personally known to me or has produced a valid driver's license as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Conunission Number: STATE OF FLORIDA COUNTY OF PINELLAS The foregoing ,_,by on behalf of the corporation. license as identification. instrument was acknowledged before me this day of of The Balk Company, Inc., a Florida corporation, He is personally known to me or has produced a valid driver's (SEAL) . Printed/Typed Name: Notary Public-State of Florida Conunission Number: H-3 EXHIBIT I MEMORANDUWI OF DEVELOP:\IENT .-\GREE~IENT [Mediterranean Village in the Park] This Memorandum of Agreement for Development and Disposition of Property ("Memorandum") is made this Jay of , 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL 32521. and THE BALK COMPANY, INC., a Florida corporation (the "Developer"), whose address IS This Memorandum pertains to an Agreement for Development and Disposition of Property (Mediterranean Village in the Park), by and between the Agency and the Developer, dated as of , 2002, (the "Development Agreement"), which provides, among other things, for the sale of property within a project site as described in Exhibit "A" attached hereto and made a part hereof for the development and construction of the Mediterranean Village in the Park Project, as same is defined in the Development Agreement. The Development Agreement is incorporated herein and made a part hereof by reference as fully as though it were set forth herein in its entirety. It is the intention of the parties to hereby ratify, approve and confirm the Development Agreement as a matter of public notice and record. Nothing herein shall in any way affect or modify the Development Agreement, nor shall the provisions of this Memorandum be used to interpret the Development Agreement. In the event of conflict between the terms of this document and those contained in the Development Agreement, the terms in the Development Agreement shall control. A copy of the fully-executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affIxed as of the day of , 2002. COlVli\'IUNITY REDEVELOPlVlENT AGENCY OF THE CITY OF CLEAR\V A TER, FLORIDA By: Its Chairman I-I , as (SEAL) ATTEST: By: , as Its: Executive Director (SEAL) ATTEST: By: Its: Secretary ,.as l THE BALK COMPANY, INC. By: Its , as I-2 STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this day of , 2002, by , Chairman of the Community Redevelopment Agency of the City of Clearwater, a body corporate and politic of the State of Florida, on behalf of the Agency. He is personally known to me or has produced a valid driver's license as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: STATE OF FLORIDA COUNTY OF PINELLAS The foregoing , 2002, by corporation, on behalf of the corporation. valid driver's license as identification. instrument was acknowledged before me this day of of The Balk Company, Inc. , a Florida He is personally known to me or has produced a (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: I-3 Exhibit J Reports 1. Geotecnical Data Sheet for Town Lake Project by P.S.I. dated October 1995; 2. Phase I Environmental Site Assessment (Property A) by IT Corporation dated March 1999; 3. Phase I Environmental Site assessment (property B) by IT Corporation dated March 1999; 4. Phase I Environmental Site assessment (Property C) by IT Corporation dated March 1999; 5. Phase I Environmental Site assessment (Property D/901-909 Park Street) by IT Corporation dated March 1999; 6. Phase I Environmental Site assessment (Property E) by IT Corporation dated March 1999; 7. Phase I Environmental Site assessment (Property F/900 Pierce Street) by IT Corporation dated March 1999; 8. Phase I Environmental Site assessment (Property G) by IT Corporation dated March 1999; 9. Phase I Environmental Site assessment (Property H) by IT Corporation dated March 1999; 10. Phase II Environmental Site Assessment (ESA) - Property A and Property B by Dames & Moore dated June 2, 1999; 11. Supplemental Phase II Environmental Assessment - (property D&E) by ECT dated June 4, 1999; 12. Supplemental Phase II ESA - Property B by Dames & Moore dated September 13, 1999 ; 13. Report - Supplemental Groundwater Assessment - Property B by Dames & Moore dated February 8, 2000; 14. Report - Semiannual Groundwater Monitoring - PropertyB by Dames & Moore dated May 17,2000; 15. Report - Semiannual Groundwater Monitoring - Property B by Dames & Moore dated October 18, 2000; 16. Hydraulic Lift Removal Report - Property B by Dames & Moore dated October 2000; 17. Tank Closure Assessment Report - Property B by Dames & Moore dated October 2000; 18. Supplemental Groundwater Monitoring - Tank Closure Assessment - Property B by Dames & Moore dated October 27, 2000; 19. Report of Geotecnical Investigations for the Town Pond Rehabilitation Project by Parsons Engineering dated November 6, 2000; 20. Monitor Only Plan - Property B by URS/Dames & Moore dated December 2000; Site Assessment and Remedial Action Plan - Property B by URS/Dames & Moore dated April 2001; 21. Summary of Environmental Activities by URS/Dames & Moore dated February 20 200 I ; Exhibit J 22. Summary Document: Site Assessment and Remedial Action Plan - Property B by URS/Dames & Moore dated April 2001; 23. Summary Report of Supplemental Soil Delineation Activities - Property B by URS dated August 2001; 24. Site Assessment Summary Letter Report - Property B by URS dated November 16, 2001; 25. Focused Risk Assessment - Property B by Hazardous Substance & Waste Management Research, Inc., dated November 2001; 26. Interim Source Removal Plan - Property B by URS dated November 2001; 27. Report of Hydraulic Equipment Disposal and Assessment Report for Property D by URS dated November 2001. Correspondence 1. Response to FDEP Review Comments - Property B by URS dated May 15, 2001; 2. Response to FDEP Re\"jew Comments - Property B by URS dated May 25, 2001; 3. Response to FDEP Review Comments - Property B by URS dated September 4,2001; 4. Response to FDEP Review Comments (DRAFT) - Property B by URS dated November 19, 2001 (Note: This document has not yet been sent to the FDEP); 5. Subsurface Peat Layer - Property B by URS dated October 12, 2001; 6. Preliminary Opinion of Estimated Cost for the Removal of Organic Materials - Property B by URS dated October 22,200 I; 7. Project Status Report Number 1 for September 2001; 8. Project Status Report Number 2 for October 2001; and 9. Project Status Report Number 3 for November 2001. I , I ~ Q.-:-' U ...J Z ...J ~ W xo C> ~ Z <(z"" 5 0 :to{ >!' ~ ~ ~~~ 5 g l?~ ~ ~ ~~~ z Z <izl- ~ ~ ~~ffi 0{ <%l xl-I- Cl ~ ~ :!~iti z w 0 Ow?:; W ll. {/) U'l...J'-' ~ ~~ D :.. _ Q:.t '.....- ''I'~ 1-';;"" ~~ ;-~ ~5 z.... .:,(:lC !,~, ,or " ;..l ~ es;Q :~Z~Ez . I ;.J;zz.".< , I W '- ~II Q<~~~ " r..::_Cl::zr- I ;...~~~C( i <~-"=~ 1,,- ...:C ...~ --- ~, . ". I ~... ... CIJ ~ ,---- ...- (J'J~ ~o w:C 10. ~~, ~:n ...H.,j -"'" .....; --: \ \.../~ \ \ \ ........~ \. .. .._,-_..,--_. \ \ . \ (' \ ~,/\ '. _..);--' ;~ ~ \ \,-,1\\, ~ /' ,.". . \ \ /' --- ..... ........ \ '" \ t.., . ......'. /'{/ ~ / \ ~\/-'...,,/ .,'- .~. y./ -v- ... "(. .....\.~ '-. .,' >,/ /,k' c.: \\.).,/' / W ::2: I- Z - W ~ :3 ....I - > Z <C W Z C( a:: a:: ~w ...1- -- me J:W ~:E --- -- /'~-~ ,: r--.. _.~ ..'\ /.' _:' ! . -"1 ::..... /":"---:-.J I~..... (.. '-(,I" I Z " . ," __ ~ ~: ~-<], _'h~ i I , I / I i 4S \ '. - 'r ~. ~ ,tI~ ~ ~~ ~ ...._._~ . ~.._-~ ~~~ --- ...; ....~ c ; i , ~- n N 3 It", ; /'~~~~ i!~, ~ , , I : , .:'~7~ ; . I"~ , I I r - , W-' Ur""IE....... I 1'1 I I rr' __LL.L..: '! I L~ Il-tt; I EXHIBIT L SCOPE OF \VORK SOIL REMEDIATION PROPERTY B 901-927 CLEVELAND STREET CLEARWATER, FLORIDA Soil will be rcmovcd from arc as on the subject propcrty that have been impacted with polynuclear aromatic hydrocarbons at concentrations that exceed soil cleanup target levcls established in Chapter 62-777, Florida Administrative Code. Soil will aJ.m be removcd from arcas that contain arscnic at concentrations greatcr than 1.4 milligrams per kilogram (half of thc risk-based soil cleanup target level of 2.8 milligrams per kilogram). Bascd on analytical data, soil impactcd with polynuclear aromatic hydrocarbons is limited to the southern portion of the property. URS Corporation (URS) estimates that approximately 8,130 cubic yards (12,200 tons) of soil will be removed from the subject property. Approximately 6,190 cubic yards (9,290 tons) of soil will be removed from the southern portion of the propelty. Approximately 1,940 cubic yards (2,910 tons) of soil will be removed from the northern portion of the property. The limits of excavation are shown in Figure 1. The maximum depth of excavation will be approximately four feet below land surface. At cCItain locations, the depth of excavation will be two feet below land surface. These locations are depicted in Figure 1. Excavated soil will be loaded onto trucks and transported to a thermal treatment facility for proper disposal. Manifests and certificates of disposal will be provided. Following excavation, confirmation soil samples will be collected for laboratory analysis. Confirmation soil samples will be analyzed for polynuclear aromatic hydrocarbons and arsenic, as appropriate. Following receipt and evaluation of the confirmation soil sample analytical results, the excavated areas will be backfilled with clean soil. Soil will be placed in one-foot lifts and compacted in accordance with City of Clearwater requirements. R :\waSlc\rcports\200 I \cnc\prophIC"IC"hi bi l.une ;.: ;..l , " :::; :::~c 'J:. -= :J1 6:E ~ ~ :..~~ O~iO~G~ .... :.LI.':.I.... c~ .. Z ~:;Z] .~~ ; 0 :;',:O.::'~,: ~ ;-=~:;:~-= ~ ..:~Q,,;:~- IX -;..giX-5-g..g O..;~O~::::: I =- ~ ;,=- ]~; Z ~~ R~ r IX..= =0=: E~:: - ---~-~~:....,.t..IJ..:=...,. ..---- :c ~-:c~':....: :- ~ '- ~~ L ~ N'r, -.; = :-., "'-' " .... \.t __ e:n ..- CX 0" ~ \"' \..:::'j~'-'/' Z :J1 0: \ \ \.. ~ \ -.:---.--- \ \ \ \. ~ .......... /\.- A\ \ />/...../ ~ \ \,\1\:\ \>/,/~ a: "\~. 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EXHIBIT M LICENSE AND ESCROW AGREEMENT STAGE II PROPERTY This License and Escrow Agreement made and entered into this 4th day of March, 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA a public body corporate and politic of the City of Clearwater, Florida, created pursuant to Part III, Chapter 163 F,S" hereinafter referred to as "CRA" and the BALK COMPANY, INC, a Florida corporation, hereinafter referred to as "Balk." WHEREAS, CRA is the owner of the fee simple title to the area described in Exhibit "A" and hereinafter referred to as the Stage II Property; and WHEREAS, CRA is willing to grant a license to Balk to enter onto and occupy the Stage II Property for the purposes and under the conditions stated in this Agreement; and WHEREAS, in order to secure performance by Balk of certain obligations under this Agreement, the parties desire to enter into this License and Escrow Agreement. NOW, THEREFORE, it is mutually agreed as follows: 1. BackQround. The parties acknowledge that Balk has contracted to purchase certain real property from CRA to be developed as a 100::l.Jnit residential townhouse development known as Mediterranean Village in the Park in the Community Redevelopment Area, consistent with that certain Agreement for Development and Disposition of property between the parties of even date herewith, hereinafter referred to as the Development Agreement. The parties also acknowledge that that remediation for existing environmental conditions ("Remediation") is required to be performed and completed by the CRA as described in the Development Agreement and the Brownfields Site Rehabilitation Agreement and desire to allocate the expenses of implementing the Remediation. Further, for its convenience and in order to avoid additional cost, Balk desires to undertake certain activities, Le. peat removal and associated backfilling, prior to closing on the Stage II Property. All such activities are at Balk's sole cost and risk. 2. Balk obliQations, Pursuant to Section 11.010) of the Development Agreement, Balk agrees to contribute the sum of One Hundred Thirty Thousand and no/100 ($130,000.00) to be paid to the CRA by cashier's check within ten (10) days from the date of this Agreement as its contribution for the removal of soil to effectuate the Remediation. Balk, at its sole expense, shall perform the backfill work (Le., the "Work") required by DEP as part of the environmental remediation for which the eRA is responsible under the Brownfields Site Rehabilitation Agreement. In addition, removal of peat from the site, may be done at the discretion of Balk who shall be solely responsible for all cost related to such removal including the cost of backfilling. CRA shall be responsible for funding and performing all other work required to effectuate the Remediation. 3. CRA approval of fill. With respect to all fill used on the Stage II Property, the CRA shall have the right to disapprove the fill unless Balk demonstrates that it meets the "no further action" criteria of rule 62-785.680(1)(b) of the Florida Administrative Code (including the soil cleanup target levels set forth in rule chapter 62- 777 and the additive effects of multiple contaminants), No fill that exceeds these criteria shall be used for any backfilling at the Stage II Property. Balk shall be responsible for any sampling and analysis required to ensure compliance with this provision, including any required by the CRA in order to determine suitability of the fill for such backfilling. 4, Responsibility for Contractor fees, Balk shall be solely responsible for all work performed by Balk's contractor, In addition to any other requirements herein, Balk shall provide CRA with a certification signed by Balk's contractor verifying receipt of payment due (and payment of subcontractors if any), for the cost of all work performed on the Stage II Property in excess of the Work as described in paragraph 2. Balk agrees to indemnify and save harmless the CRA by reason of any mechanics lien which may be asserted as a claim against the property, 5. Notices, All notices which are required or permitted hereunder must be in writing and shall be deemed to have been given, delivered, or made as the case may be, notwithstanding lack of actual receipt by the addressee; (1) three (3) business days after having been deposited in the U,S, Mail, certified or registered, return receipt requested, sufficient postage affixed and prepaid, or (2) one (1) business day after having been deposited in an expedited overnight courier serJice such as by way of example but not limitation, U.S, Express Mail or Federal Express addressed to the party to whom notice is intended to be given at the address set forth below: Balk - Balk Company, Inc, 290 Cocoanut Avenue Sarasota, Florida 34236 Attn: Mr. Bruce Balk Copy to- E.D. Armstrong, III, Esquire Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P,A, p.a, Box 1368 Clearwater, Florida 33757-1368 City- William B. Horne, II City Manager City of Clearwater 2 P,O, Box 4748 Clearwater, Florida 33758-4748 Copy to- Pamela K, Akin, Esquire City Attorney City of Clearwater P,O. Box 4748 Clearwater, Florida 33758-4748 Any party may change address to which notices are sent by giving the other party written notice of any such change in the manner provided in this section, but notice of address changes is effective only upon receipt. 5, Term of Aqreement. The term of this Agreement is for 180 days from the effective date of the Agreement for Development and Disposition of Property Mediterranean Village in the Park between CRA and Balk, All work permitted or required pursuant to this Agreement shall be completed by Balk within 180 days, 6, Escrow Aqreement. In order to ensure that the Work is completed to the satisfaction of CRA and DEP, Balk, upon its execution of this Agreement, shall deliver to Fowler White Boggs Banker P,A. (ie, "Escrow Agent") the sum of $160,000.00 in good and sufficient funds to be held by Escrow Agent in escrow pursuant to the terms and conditions set forth in this section 6, (a) Upon receipt of the sum of $160,000,00 (hereinafter the "Escrow Fund") in good and sufficient funds from Balk, Escrow Agent shall hold and retain the same in trust in a non-interest bearing bank account. The Escrow Fund shall be disbursed by Escrow Agent in accordance with the following provisions: (i) Within ten (10) days after Balk has provided Escrow Agent with an invoice from a contractor for costs incurred in performing the Work and certification from the CRA that the Work has been done in compliance with the remediation requirements and that the CRA has received a certification from the Contractor as provided in paragraph 4, the invoice amount shall be disbursed from the Escrow Fund to the contractor; (ii) Within ten (10) days after Balk or CRA has provided Escrow Agent with reasonable written evidence establishing that DEP has accepted and approved the Work, and certification signed by Balk's contractor verifying receipt of payment due (and payment of subcontractors if any), the remaining amount, if any, in the Escrow Fund shall be disbursed to Balk; (iii) Escrow Agent shall disburse the Escrow Fund or any portion thereof at any time in accordance with any written direction duly executed by both Balk and CRA. 3 (b) Escrow Agent's duties hereunder shall terminate upon the disbursement of the entire Escrow Fund. (c) In the event of any dispute between Balk or CRA concerning the disbursement of the Escrow Fund under this Agreement, each party hereby agrees not to bring any action, whatsoever, against Escrow Agent or to otherwise involve Escrow Agent, as a party, in any such dispute or conflict. CRA hereby acknowledges that it has been advised that Escrow Agent currently acts and plans to continue to act as counsel for Balk in this matter and in other matters and that no confidential, fiduciary, or attorney-client relationship is established by and between CRA and Escrow Agent as a result of this Agreement and that eRA is not looking to Escrow Agent for any legal advice or consultation hereunder and waives any claim of conflict of interest that might be asserted as a result of Escrow Agent also representing Balk in connection with this matter or other matters related to or arising under this Agreement. (d) Balk and CRA do hereby release and further agree to defend and indemnify Escrow Agent from any and all actions, claims, damages and liabilities of whatever nature or kind, whether at law or in equity, which may be asserted against Escrow Agent by any of the parties hereto or any third parties and which actions, claims, damages, (including costs and reasonable attorneys fees incurred by Escrow Agent) and liabilities arise from, are related to or are associated with Escrow Agent's actions or omissions under this Paragraph 6, except nothing contained herein shall relieve Escrow Agent from liability arising out of Escrow Agent's gross negligence or willful malfeasance, (e) If Escrow Agent is in doubt as to its duties or liabilities under the provisions of this paragraph 6, or in the event a dispute arises between the parties or any of them regarding the disbursement of the Escrow Fund, Escrow Agent may interplead the Escrow Fund into the Circuit Court of Pinellas County, Florida, whereupon, after notifying all parties concerned with such action, all liability on the part of Escrow Agent shall terminate. Escrow Agent shall be reimbursed its reasonable attorneys fees and costs incurred in connection with the interpleader action either out of the funds deposited or by the parties to this Agreement. (f) The parties hereto agree that Escrow Agent shall not be required to make any disbursement of the Escrow Fund or any portion thereof except in accordance with the terms as set forth in this Section. (g) Any notice to be given under this paragraph 6 must be given in writing and either sent by certified mail, return receipt requested, postage prepaid, or, sent by overnight or hand delivery courier service to the party at the address hereinafter specified, or sent by facsimile transmission to the fax number of a party as hereafter specified, and shall be deemed to have been given, when sent if by certified mail or overnight delivery service or when delivered if by hand delivery courier service or when transmitted if by facsimile transmission, Such notice shall be given to the parties hereto at the addresses or fax numbers below. Any party hereto may, by giving five (5) days' 4 notice to the other in accordance with the aforesaid provisions, designate another address or fax number for notices, Balk: The Balk Company, Inc, 290 Cocoanut Avenue Sarasota, FL 342356 Facsimile: (941) 366-3301 Agency: Community Redevelopment Agency of the City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756-5103 Facsimile: (727) 562- Escrow Agent: Fowler White Boggs Banker P,A. P.O, Box 1438 Tampa, FL 33601 Attn: Ronald H. Noble, Esq, Facsimile: 813-229-8313 7. Indemnity, Developer shall indemnify against and hold the City harmless from any liability for negligence or intentional wrongful acts or omissions of Developer or its employees, agents, contractors, or subcontractors, with respect to any activity at the Stage II Property related to the peat removal and all backfilling, This Indemnity provision shall survive the term of this agreement. 8. Entire AQreement. This Agreement and the exhibits referenced herein embodies and constitutes the entire understanding among the parties with respect to the transaction contemplated herein and all prior or contemporaneous agreements, understanding, representations and statements, oral or written, are merged into this Agreement. Neither this Agreement nor any provisions hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the party against which the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. 9, Applicable Law. This Agreement is construed in accordance with the laws of the State of Florida. 10. HeadinQs, Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this contract. 5 11, Bindinq Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, personal representative and successors by law. 12, Interpretation. Whenever the context hereof shall so require, the singular shall include the plural, the male gender shall include the female gender and neuter and vice versa. This Agreement and any related instruments shall not be construed more strictly against one party than against the other by virtue of the fact that initial drafts were made and prepared by counsel for one of the parties, it being recognized that this contract and any related instruments are the product of extensive negotiations between the parties and that both parties have contributed substantially and materially to the final preparation of this contract and all related instruments. 13, Time is of the Essence, Time is of the essence of this Agreement. Should any period of time specified herein and on a Saturday, Sunday or legal holiday (recognized in Clearwater, Florida), the period of time shall automatically be extended to 5:00 p.m. on the next full business day, 14, Other Aqreements. No prior or present agreements or representations shall be binding upon either party unless included in this Agreement. No modification or change in this Agreement shall be valid or binding upon the parties unless in writing and executed by the party or parties to be bound thereby. 15. Nothing in this Agreement shall be construed to constitute the creation of a partnership or joint venture between the parties. Countersigned: CITY OF CLEARWATER, FLORIDA By: Brian J. Aungst Mayor-Commissioner William B, Horne II City Manager Approved as to form: Attest: Pamela K. Akin City Attorney Cynthia E. Goudeau City Clerk THE BALK COMPANY, INC. 6 By: Bruce Balk, President The undersigned Escrow Agent acknowledges receipt of the sum of $ by way of check (subject to COllection) from The Balk Company, Inc, as the Escrow Fund described in Section 6 of this Agreement and the terms of the escrow arrangements set forth in Section 6 are accepted by the undersigned. FOWLER WHITE BOGGS BANKER P.A, By: Its: Execution Date: 7 e~ (g~ ,~= ~ ~~n....fc'l: Community Redevelopment Agency Agenda Cover Memorandum Final Agenda Item # rf2A 5 Meeting Date: Mar, 4, 2002 SU BJECl/RECOMMEN DA liON: Approve the Interlocal Agreement between the Community Redevelopment Agency of the City of Clearwater and the City of Clearwater regarding The Balk Company, Inc, residential town home development proposal fronting on Cleveland Street, and authorize the payment of $386,771 in various development, impact, and stormwater fees to the City over a three year period in fiscal years 2001/02 through 2003/04, C8J and that the appropriate officials be authorized to execute same, SUMMARY: · In December of 1999, the CRA issued the Request for Proposal for the development of an approximately 5- acre site fronting on Cleveland Street, commonly known as the Dimmitt property. . As a result of that process, the CRA selected The Balk Company, Inc., for the purpose of negotiation for the redevelopment of the site in conjunction with the City's development of the proposed City lake and adjoining public park. . The Balk Company proposes to build 100 residential townhomes, a swimming pool. and a community facility, The purpose of the Interlocal Agreement is to facilitate the proposed redevelopment of the site by providing for the cooperation of the CRA and the City for site consolidation, site rehabilitation and payment of development related fees, The Balk Company anticipates purchasing the property in three stages at a rate of $7.75 per square foot. The total land cost is $1.823,560 based on 235,298 square feet (5.4 acres mol); Stage 1 is 37,117 square feet or $287,657, Stage 2 is 120,740 square feet or $935,735 and Stage 3 is 77,441 square feet or $600,168 . The City has taken the necessary steps to declare surplus and sell to the CRA the property necessary for the project. The CRA will purchase the Stage III property and the portion of the Stage II property from the City as needed for closing with the Balk Company. . The CRA and Brownfields Program agree to pay certain development related fees, estimated to be $386,771, on behalf of the project. Those fees include impact fees, permit fees, utility connections fees and stormwater "buy-in". The fees will be paid as construction occurs. Reviewed by: 0 I A legal ~ Budget ~ Purchasing NA - Risk Mgmt NA Info Tech ~ Public WoM;!'- ' DCNVACM _____ Other ' NA Originating Dept: f7 J.L, Economic Development{ ~ User Dept. 1k.-~ Economic Developmenl Attachments Inlerlocal Agreement Costs $386,771 Total Funding Source: Capilollmprovemenl Current Fiscal Year Opcf,lIlnll Other x CRA & Brownfields Submitted by: n. a. ~ . City Manager ~ ~ ~ o Printed on recycled paper o None Appropriation Code: 188.09311-592400-552-000 181.99972 Rev. 2/98 · The City agrees to reduce the Stormwater buy-in fee pursuant to City resolution No. 99-43 from $200,000 to $100,000, · The remaining Stormwater buy-in fee of $100,000 will be paid by the CRA, · The City has committed to certain remedial actions on the property pursuant to the Brownfields Site Rehabilitation Agreement entered into between the City and Florida Department of Environmental Protection, The total site cleanup to date is $834,447, This funding is provided by state and federal Brownfields program funding. · Balk has agreed to pay $130,000 for soil remediation on the Stage II property and will be responsible for all backfill costs on the site. In addition the City will provide an estimated $101,300 to finish the soil remediation and provide water quality monitoring, · The CRA will have the responsibility to hold The Balk Company harmless on pre-existing environmental issues relating to existing site conditions except as provided in the agreement. · Additional construction costs if any, related to groundwater contamination will be borne by the CRA. · The total estimated construction value of the project at buildout, is $16,425,000, A total of $224,808 of annual ad valorem and non ad valorem revenues are projected for this project at build out. 2 ~ 2/20/02 . . AGREEl\'IENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY ~'1editerranean Village in the Park) This Agreement for Development and Disposition of Property ("Agreement") is made as of this 4th day of March, 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida created pursuant to Part III, Chapter 163, Florida Statutes ("Agency"), and THE BALK COMPANY, INC., a Florida Corporation ("Developer"). WIT N E SSE T H: WHEREAS, on December 6, 1999, pursuant to the Request for Proposals, dated October 22, 1999, the Community Redevelopment Agency of the City of Clearwater, Florida (the "Agency") tentatively accepted the proposal of Developer, dated November 22, 1999, in response thereto, subject to negotiation of a definitive agreement with Developer pertaining to and setting forth the terms and conditions for the development of a l00-unit residential townhouse development known as Mediterranean Village in the Park in the community redevelopment area of the City; WHEREAS, the Agency proceeded with the preparation of a development and disposition agreement to set forth the respective duties and responsibilities of the parties pertaining to the conveyance of the Site (as hereinafter defined), and the design, development, construction, completion, operation and maintenance of the Project (as hereinafter defined), and design, construction and installation of the Infrastructure Improvements (as hereinafter defined); WHEREAS, the Agency and Developer have entered into and concluded negotiations for said definitive development and disposition agreement, which negotiations have resulted in this Agreement; WHEREAS, due to certain terms and conditions of this Agreement and in order to provide for the successful development of the Project, the Agency has entered into an interlocal agreement with the City of Clearwater, Florida ("City"), dated as of March?, 2002 ("Interlocal Agreement"), providing for the cooperation and assistance of the City and the Agency in Mediterranean Village Project Development Agreeme1lt 1 J accomplishing the goals and objectives of this Agreement, including establishing certain duties, . obligations, terms and conditions of the Agency and the City pertaining to the Project Site and the Infrastructure Improvements; WHEREAS, at a duly called public meeting on March 4 January 22, 2002, the Agency approved this Agreement and authorized and directed its execution by the appropriate officials of the Agency; WHEREAS, the Developer has approved this Agreement and has authorized and directed certain individuals to execute this Agreement on behalf of Developer; and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby agree as follows: ARTICLE 1. DEFINITIONS. 1.01. Definitions, The terms defined in this Article I shall have the following meanings, except as herein otherwise expressly provided: (1) "Act" means the Constitution of the State of Florida; Section 163.01, Florida Statutes, Part ill, Chapter 163, Florida Statutes; Chapter 166, Florida Statutes, other applicable provisions of law, and ordinances and resolutions of the City and the Agency implementing them. (2) "Agency" means the Community Redevelopment Agency of the City, as created by Resolution No. 81-68 of the City, adopted by the City Commission on August 6, 1981, including any amendments thereto, and any successors or assigns thereto. . (3) "Agreement" means this Agreement for Development and Disposition of Property, including any Exhibits, and any amendments hereto or thereto. (4) "Agreement Expiration Certificate" means the instrument executed by the parties hereto as provided in Section 17.19 certifying that all obligations of the parties hereto have been satisfied and this Agreement has expired in accordance with its terms, the form of which is attached hereto as Exhibit "G." (5) "Agreement Termination Certificate" means the instrument executed by the parties hereto as provided in Section 13.06 stating that this Agreement has been terminated prior to its Expiration Date as provided in Section 13.05, the form of which is attached hereto as Exhibit "H." (6) "Area" means the area located within the corporate limits of the City having conditions of slum and blight (as those conditions are defined in the Act) as found by the City Mediterranean Village Project Deve/opmellt Agreement . 2 - , . Commission in Resolution No, 81-67, adopted by the City Commission on August 6, 1981. (7) "Authorized Representative" means the person or persons designated and appointed from time to time as such by the Developer or the Agency, respectively, pursuant to Section 2,04, (8) "Building Permit" means, for all or any part of the Project to be constructed on the Site, any permit issued by the City authorizing, allowing and permitting the commencement, prosecution and completion of construction to the extent provided in said permit. (9) "City" means the City of Clearwater, Florida, a Florida municipal corporation, and any successors or assigns thereto. (10) "City Commission" means the governing body of the City, by whatever name known or however constituted from time to time. (11) "Closing Date" means the date on which title to the Stage I. Stage II or Stage II! Property is conveyed by the Agency to the Developer in accordance with and as contemplated by the provisions of Article 7 hereof. (12) "Commencement Date" means the date of issuance of the first Building Permit for any part of the Project. . (13) "Completion Date" means the date on which construction of any Stage of the Project is substantially complete as evidenced by a Completion Certificate, (14) "Contractor" means one or more individuals or firms constituting a general contractor or other type of construction contractor properly licensed by the State of Florida or other appropriate jurisdiction to the extent required by applicable law, authorized to perform construction contractor services in the State of Florida, registered with the City as required by applicable law, bonded and insured to the extent required by applicable law and this Agreement, including the Developer or any affiliates of the Developer. (15) "Construction Financing" means the funds provided by the Construction Lender to the Developer during the term of this Agreement to pay the cost of developing and constructing the Project, or any portion thereof, on the Project Site, including, but not limited to, acquisition of the Site, financing costs, "soft costs," overhead, and the design, construction and equipping of the Center Project. (16) "Construction Lender" means any person or persons providing the Construction Financing or any portion thereof. (17) "Developer" means THE BALK COMPANY, INC., a Florida Corporation, and . MediJerranean Village Project De~lelopment Agreemellt 3 any successors and assigns thereof, including any entity, partnership, joint venture, or other . person in which THE BALK COMPANY. INC.. is a general partner or principal, but not including any entity, partnership. joint venture, or other person in which THE BALK COMPANY, INC., is a general partner or principal which is not undertaking or participating in any development of the Project, or any part thereof. The Developer shall not mean a purchaser or lender of individual units within the Project. (18) "Effective Date" means the date determined in accordance with Section 17.20 when the Memorandum of Development Agreement is recorded and this Agreement becomes effective, (19) "Exhibits" means those agreements, diagrams. drawings, specifications. instruments, fOnTIS of instruments, and other documents attached hereto and designated as exhibits to, and incorporated in and made a part of, this Agreement. (20) "Expiration Date" means the date on which this Agreement expires, as evidenced by the Agreement Expiration Certificate being recorded in the public records of Pinellas County, Florida, as provided in Section 17.19 hereof. (21) "Impact Fees" means those fees and charges levied and imposed by the City, Pinellas County and any oth~r governmental entity on projects located in the Project Site for certain services impacted by development such as the Project. (22) "Infrastructure Improvements" means the improvements to be designed, constructed and installed by the Agency or caused to be designed, constructed and installed by the Agency in substantial accordance with the Infrastructure Improvements Plans and Specifications on the Project Site. . (23) "Infrastructure Improvements Completion Date" means the date on which construction and installation of the Infrastructure Improvements are substantially complete as contemplated by this Agreement and as evidenced by the Infrastructure Improvements Completion Certificate. (24) "Infrastructure Improvements Completion Certificate" means the instrument executed by the Agency certifying that design, construction, installation and equipping of the Infrastructure Improvements are substantially complete and usable for the purposes contemplated by this Agreement and setting fortbthe Infrastructure Improvements Completion Date, the form of which is attached hereto as Exhibit "P." (25) "Infrastructure Improvements Plans and Specifications" means the plans and specifications pertaining to the Infrastructure Improvements, including the Infrastructure Schedule for commencing, continuing and completing such improvements, all as prepared, reviewed and approved as provided in Article 5 hereof. Mediterranean Village Project DeJ'elopment Agreeme1lt . 4 , . . . (26) "Infrastructure Schedule" means the schedule for commencing, continuing and completing the design, construction, and installation of the Infrastructure Improvements, as prepared, reviewed and agreed to as provided in Article 5, (27) "Interlocal Agreement" means the interlocal agreement between the City and the Agency, dated as of March 7 January 24, 2002, entered into pursuant to Sections 163,01 and 163.400, Florida Statutes, which establishes certain duties and responsibilities of each party thereto pertaining to the Project and the implementation of this Agreement, including, but not limited to, the Infrastructure Improvements and the Project Site, which agreement is further described in Section 2.05 hereof, (28) "Mediterranean Village Plans and Specifications" means the plans and specifications pertaining to the construction, of the Project, including the schedule for completing the Project, consisting of the plans and specifications for each Stage, (29) "Permits" means all zoning, variances, approvals and consents required to be granted, awarded, issued, or given by any governmental authority in order for construction of the Project, or any part thereof, to commence, continue, be completed or allow occupancy and use, but does not include the Building Permit. (30) "Stage" means Stage I, Stage II, or Stage III of the Project, as the case may be. (31) "Stage I" means the initial Stage of the Project, which shall consist of 15 units, the community hall and swimming pool. (32) "Stage II" means the second Stage of the Project which consists of 49 units. (33) "Stage III" means the third Stage of the Project which consists of 36 units, (34) "Stage Property" means Stage I Property, Stage II Property, or Stage III Property as the case may be. , (35) "Stage I Property" means that portion of the Site described or depicted on Exhibit "A-I" upon which Stage I shall be constructed, 00 "Stage II Property" means that portion of the Site as described and depicted on Exhibit "A-Z" upon which Stage II shall be constructed. (37) "Stage III Property" means that portion of the Site as described and depicted on Exhibit" A-3" upon which Stage III shall be constructed. (38) "Plan" means the community redevelopment plan for the Area, including the . MediterrQlrean Village Project Development Agreement 5 Project Site, as adopted by the City Commission on August 17, 1995, by enactment of its . Resolution No, 95-68, and including any amendments to the Plan, (39) "Project" means the 100 residential townhouse fee simple units together with a swimming pool and community hall to be located on the Site as contemplated by the Proposal and this Agreement and constructed substantially in accordance with the Mediterranean Village in the Park Plans and Specifications, consisting of Stage 1, Stage II, and Stage III, (40) "Project Professionals" means any architects, attorneys, brokers, engineers, consultants, planners, construction managers or any other persons. or combination thereof. retained or employed by the Developer in connection with the planning, design, construction, permit applications, completion and opening of the Project. but does not include the Developer. (41) "Project Site" means the tract of land located in the Area on part of which the Infrastructure Improvements will be constructed and installed and that part of which is to be conveyed to the Developer constituting the Site on which the Project will be located, as more particularly described and depicted on Exhibit "A," including the public rights~of-way and any land to be dedicated to public use or across which there is a permanent public access easement or easement in favor of the Developer. (42) "Proposal" means the proposal for redevelopment of the Project Site, dated November 22, 1999, submitted by the Developer to the Agency in response to the RFP. (43) "RFP" means the Request for Proposals initially published by the Agency on . October 22, 1999, soliciting proposals from persons interested in redeveloping the Project Site in accordance with the Act and the Plan, (44) "Site" means that pan of the Project Site which is conveyed to the Developer by the Agency pursuant to the terms of Article 7 hereof and on which the Mediterranean Village in the Park is to be located. (45) "Site Plan" means the depiction and description of the Project on the Project Site, the initial version of which is attached hereto as Exhibit "B." (46) "Termination Date" means the date on which this Agreement is terminated by any party hereto as provided in Section 13,05, and as evidenced by the Agreement Termination Certificate. (47) "Unavoidable Delay" means those events constituting excuse from timely performance by a party hereto from any of its obligations hereunder, as such events are defined in and subject to the conditions described in Article 14 hereof. 1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and Mediterranean Village Project Development Agreement . 6 . . . . . construed to include correlative words of the feminine and neuter genders, Unless the context shall otherwise indicate, the singular shall include the plural as well as the singular number, and the word "person" shall include corporations and associations, including public bodies, as well as natural persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this Agreement and not solely to the particular portion thereof in which any such word is used, 1,03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (2001), as amended from time to time, ARTICLE 2. PURPOSE; PROPOSAL. 2,01. Intent: Purpose of Agreement. (a) The purpose of this Agreement is to funher the implementation of the Plan by providing for the planning, construction and installation of the Infrastructure Improvements, the conveyance of the Site to the Developer and the development and construction of the Project thereon in accordance with the Project Plans and Specifications, all to enhance the quality of life, increase employment and improve the aesthetic and useful enjoyment of the Area through the eradication of conditions of blight, all in accordance with and in furtherance of the Plan and as authorized by and in accordance with the Act. (b)(l) The Site, which may be conveyed to Developer in three (3) Stages and may be constructed in three (3) Stages, is to be redeveloped according to Project Plans and Specifications . (2) As provided in this Agreement, the Agency shall undertake celtain public actions pursuant to the Act and as implementation of the Plan, including making the Project Site available for redevelopment, assistance in obtaining such approvals by governmental authorities as are necessary for development of the Project, and the construction and installation of the Infrastructure Improvements. (c) As provided in this Agreement, the Developer shall carry out the redevelopment of the Site by purchasing the Site from the Agency, obtaining approvals by governmental authorities necessary for development of the Project, constructing various private improvements on the Site, and causing the Project to be developed. 2.02, Developer's Proposal. (a) The Proposal for the redevelopment of the Project Site, specifically including the acquisltlon of the Site by the Developer from the Agency and the design, construction, equipping, completion and use of the Project, and each component thereof, is hereby found by the Agency and acknowledged by the Developer: (1) to be consistent with and in furtherance of Medilerranean Village Project Development Agreement 7 the objectives of the Plan, (2) to conform to the provisions of the Act, (3) to be responsive to the . RFP, (4) to be in the best interests of the citizens of the City. (5) to further the purposes and objectives of the Agency, and (6) to funher the public purpose of eradicating conditions of blight in the Area, The parties recognize and agree that during the process of review and approval provided for in the Agreement the design of the Project may be subject to change and modification as may be either agreed to by the parties or required as provided herein or by the appropriate regulatory authority. and should any changes be necessary or desirable the parties agree that they will act expeditiously and reasonably in reviewing and approving or disapproving any changes or modifications to the Project. (b) Based upon and as a result of the findings set forth in subsection (a) above, the Proposal, including such changes and revisions as are provided by this Agreement, is hereby aftirnled by the Developer and approved and accepted by the Agency, (c) The parties hereto tind that the terms and conditions set forth in this Agreement do not, individually or collectively. constitute a substantial deviation from the RFP or the Proposal. 2,03, Cooperation of the Panies. The parties hereto recognize that the successful development of the Project and each component thereof is dependent upon continued cooperation of the parties hereto, and each agrees that it shall act in a reasonable manner hereunder, provide the other party with complete and updated information from time to time, with respect to the conditions such party is responsible for satisfying hereunder and make its good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this Agreement are carried . out to the full extent contemplated hereby and the Project is designed, constructed, equipped, completed and operated as provided herein. 2.04. Authorized Representative. (a) Each party shall designate an Authorized Representative to act on its behalf to the extent of the grant of any authority to such representative. Written notice of the designation of such a representative (and any subsequent change in the Authorized Representative) shall be given by the designating party to the other party in writing in accordance with the procedure set forth in Section 17.03 hereof, (b) Except as otherwise expressly provided in this Agreement, whenever approval or action by the Developer or the Agency is required by this Agreement, such action or approval may. in the discretion of the party considering such approval or action, be taken or given by the Authorized Representative thereof. A party to this Agreement may rely upon the representation of the other party's Authorized Representative that such person has the requisite authority to give the approval or take the action being done by that Authorized Representative. A party may not later deny that its Authorized Representative had the authority represented to and relied upon by the other party or revoke or deny any action taken by such Authorized Representative which was MedilermllCan Village Project De)'elopnre"t Agreement . 8 . relied upon by the other party, (c) The Developer does hereby notify the Agency that its initial Authorized Representative for the Project is Bruce Balk, (d) The Agency does hereby notify the Developer that its initial Authorized Representative is the Executive Director of the Agency. 2.05, Interlocal Agreement. . (a) As of the Effective Date, the Agency and the City have entered into the Interlocal Agreement, a true and correct copy of which has previously been provided to the Developer. The parties recognize and acknowledge that the City, as a general purpose unit of local government possessing certain sovereign and governmental powers, including the power to tax, may not contractually obligate itself to a private party now or in the future to exercise or not exercise those powers or subject the exercise of those powers to certain tenns and conditions. The parties further recognize and acknowledge that Section 163.400, Florida Statutes, authorizes units of local government, such as the City and the Agency, to enter into agreements to carry out the powers granted by Part III, Chapter 163, Florida Statutes, and Section 163.01, Florida Statutes, authorizes units of government, such as the City and the Agency, to enter into agreements such as the Interlocal Agreement whereby the powers and duties and obligations of one unit of government may be exercised by another or one unit of government may obligate itself to the other to undertake or not undertake certain actions. (b) The parties acknowledge that in the Interlocal Agreement the City has agreed with the Agency to take certain actions or to refrain from taking certain actions which the Developer has represented to the Agency are critical to the successful development of the Project as contemplated by this Agreement, specifically including the design, construction, installation and completion of the Infrastructure Improvements. (c)(1) Based on the Developer's representation described in subsection (b), the Agency agrees to take such actions as may be necessary from time to time to implement, commence and complete the actions required to be taken by the City pursuant to the Interlocal Agreement and, further agrees, that in the event the Agency fails to do so, the Developer may seek an appropriate order, ruling, judgment or other directive to the Agency from a court of competent jurisdiction to enforce this obligation of the Agency to cause the City to do or not to do certain things under the Interlocal Agreement, provided that nothing in this subsection (c) is intended or shall be deemed to give the Developer any right to recover damages in any action brought by the Developer contemplated by this subsection (c). Nothing in this subsection (c) is intended to deprive the Developer of any rights, remedies or actions it may take pursuant to sections 13.02 or 13,05 hereof. (2) The Agency covenants and agrees with the Developer that in any legal proceeding . Mediterranean Village Project Development Agreement 9 regarding the Project it will not assert or agree that the Interlocal Agreement is void or invalid, in whole or in part, . Cd) The Agency covenants and agrees with the Developer that for so long as this Agreement is in effect it will take such actions as are necessary to maintain the Interlocal Agreement in full force and effect and will not take any action or fail to take any action that will result in the teooination of the Interlocal Agreement before it is scheduled to expire by its own teoos or will result in changes to the Interlocal Agreement which would have the effect of adversely affecting the rights and obligations of any party to this Agreement, (e) Nothing in this Agreement, specifically including this Section 2.05 expressly or implied, is intended to or shall be construed to confer upon any person, fioo or corporation other than the parties hereto, any right, remedy, or claim, legal or equitable, under or by reason of this Agreement or any provision hereof. It is the intent of the parties hereto that this Agreement and all its provisions are intended to be and are for the sole and exclusive benefit of the parties hereto. (f) The Agency shall provide to the Developer any proposed amendments to the Interlocal Agreement at least thirty (30) days before such amendments will be considered by the governing body of the Agency. ARTICLE 3. LAND USE REGULATION. 3.01. Zoning, . On the Effective Date, the zoning classification for the Project Site is Downtown, abbreviated as "D." The parties recognize and acknowledge that the zoning classification of the Project Site as of the Effective Date does pennit development of the Project on the Site. The parties further recognize and acknowledge that the City has in the Interlocal Agreement agreed not to rezone the Site so as to prevent subsequent development of Stage I, Stage II, or Stage III to the extent and for the uses currently contemplated. 3.02. Development of Regional Impact. The parties hereto acknowledge and agree that the Project as contemplated by the Proposal and this' Agreement was not and is not as of the Effective Date a "development of regional impact" within the meaning of Section 380.06, Florida Statutes. 3.03. Permits.. (a) The Developer shall prepare and submit to the appropriate governmental authorities, including the City, the applications for each and every Building Permit and any and all necessary Permits for the Project, and shall bear all costs of preparing such applications, Mediterranean Village Project De~lelopment Agreement . 10 . . . applying for and obmining such permits (excluding permit and review costs which shall be payable by the Agency as hereinafter provided}, (b) The Agency shall cooperate with the Developer in obtaining all necessary Permits and the Building Permit required for the construction and completion of the Project. (c) The Agency shall prepare and submit, or pursuant to the Interlocal Agreement cause the City to prepare and submit, to the appropriate governmental authorities, including the City, the applications for all necessary Permits for the Infrastructure Improvements, and shall bear all costs of preparing such applications, applying for and obtaining such permits and pay any and all applicable permit, review, application, inspection, regulatory and Impact Fees or charges pertaining to the Infrastructure Improvements, (d) The Agency's duties, obligations, or responsibilities under any section of this Agreement. specifically including but not limited to this Section 3.03 do not affect the Agency's or the City's right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laws, ordinances, codes or other building or project regulation. (e) Notwithstanding any other provisions of this Agreement, any required permitting, licensing or other regulatory approvals by the Agency or the City shall be subject to the established procedures and requirements of the Agency or the City with respect to review and permitting of a project of a similar or comparable nature, size and scope. In no event shall the Agency or the City, due to any provision of this Agreement,. be obligated to take any action concerning regulatory approvals except through its established processes and in accordance with applicable provisions of law. 3.04. Concurrency. (a) The parties hereto recognize and acknowledge that Florida law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, collectively the "Growth Management Act") impose restrictions on development if adequate public improvements are not available concurrently with that development to absorb and handle the demand on public services caused by that development. The City has created and implemented a system for monitoring the effects of development on public services within the City. The Developer recognizes and acknowledges it must satisfy the concurrency requirements of Florida law as applied to the Project. Specifically, the Developer covenants and agrees to comply with the City's land development code, including providing to the City any and all data and analysis that shows the Project will be consistent with the goals, objectives and policies of the comprehensive plan for the City, adopted by the City and in effect on the Effective Date, and the Developer further covenants and agrees to comply with concurrency certification provisions of the City's land development code. MedileTTCmean Village Project Developmerrt Agreement 11 (b) The Agency represents and warrants and the Developer acknowledges that as of . the Effective Date the Project as contemplated by this Agreement does not require any reservation of capacity or to seek any approvals as a result of the concurrency requirements described in subsection (a). If legally obligated in the future to comply with such requirements. the Developer agrees to seek issuance of iI cllncurn.:ncy compliance certiticate or other similar document by whatever name known and a reservation of services capacity under the City's concurrency management system. and does further agree to maintain such certiticate and reservation. The Developer covenants :Ind agrees with the Agency to not undertake any action or fail to take any action which woulJ calise the City to revoke or invalidate the concurrency compliance certificate or the reservation of services capacity. 3.05. Not a Develooment Order or Permit. The parties do hereby acknowledge, agree and represent that this Agreement is not intended to be and should not be construed or deemed to be a "development order" or "development permit" within the meaning of those terms in Section 163.3164, Florida Statutes, ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS. 4,01. Site Plan. (a) The Developer has prepared a preliminary Site Plan, a copy of which is attached hereto as Exhibit "B," that contemplates development of the Project consistent with the Proposal and the current zoning classification for the Site. The Developer agrees that during the term of . this Agreement any material changes to the preliminary Site Plan or any subsequent versions of the Site Plan will be submitted to the Agency for approval. The Agency shall not unreasonably withhold, delay or deny its consent to changes which are consistent with the current proposal. (b) The Site Plan approved by the Agcm.:y shall be the basis for and incorporated into the Project Plans and Specifications, 4,02. Preparation of Proiect Plans and Specjlicatinns. (a) The Developer shall prepare the Projet.:t Plans and Specifications in sufficient detail and description of the Project, and each Stage thereof, hoth narratively and graphically, to allow the Agency the opportunity to determine if those plans and specifications are consistent with the Proposal, the Site Plan and the Plan. (b)(l) The Developer is responsible for the cost of preparing, submitting and obtaining approval of the Project Plans and Specifications (2) The Developer has retained and shall retain the Project Professionals to prepare the Project Plans and Specifications, and shall notify the Agency of the names of such Project Professionals and any subsequent changes thereto or additional Project Professionals retained Mediterralleall Village Project Del'e/opmellt Agreement . 12 . . . with respect to the Project. The Developer shall cause the Project Professionals to prepare the Project Plans and Specifications, (c)(1) The Agency does hereby consent to the preparation of the Project Plans and Specifications, and any revisions thereto, by the Project Professionals, and the Agency will not withhold approval of the Project Plans and Specifications because they were prepared by the Project Professionals, The Agency hereby acknowledges and agrees that the selection of the Project Professionals is the sole responsibility of, and within the discretion of, the Developer, and the Agency will not participate, and have not previously participated, in such selection by the Developer, (2) The parties hereto mutually acknowledge and agree the Project Professionals are not, individually or collectively, agents or representatives, either expressed or implied, of the City or the Agency. (d) The Developer shall file the Project Plans and Specifications with the Agency for each Stage. The Project Plans and Specifications for each Stage shall be tiled by the Developer with the Agency no later than ten (10) business days prior to the Closing Date. (e) The Project Plans and Specifications contemplated by this subsection (d) shall be sufficient for a determination by the City required by the ordinances and regulations of the City, 4,03, Coordination with City Review. The Developer has represented to the Agency and the Agency acknowledges the need to expedite the process for review of the Project Plans and Specifications and the issuance of any Building Permits and Permits. The Agency agrees to use its best efforts to coordinate and expedite its review of the Project Plans and Specifications with any review or approvals by the City or other governmental entities. 4,04. Agency Review of Proiect Plans and Specifications, (a) During the term of this Agreement, Agency review and approval of the Project Plans and Specifications is a prerequisite for issuance of the initial Building Permit for construction of the Project, or any part thereof. (b) Upon the Developer submitting the Project Plans and Specifications, or any part thereof (including the plans and specifications for any Stage), to the Agency for review, the Agency agrees to diligently proceed with and complete its review of the Project Plans and Specifications and respond to the Developer as soon as reasonably possible after receipt thereof, but in no event later than ten (to) business days after receipt of such Project Plans and Specifications, and advise the Developer in writing of the Agency I s reasonable objections thereto or that the Project Plans and Specifications have been approved as submitted. (c) If the Agency gives written notice of specific objections to or deficiencies in the Mediterranean Village Project Development Agreement 13 Project Plans and Specifications as provided in subsection (b), then the Agency and the Developer shall expeditiously, diligently and reasonably negotiate to resolve such objections. . (d) If the Project Plans and Specifications submitted to the Agency by the Developer substantially comply with this Agreement, including being substantially in accordance with the Site Plan, and further the purposes of the Plan, the Agency shall approve the Project Plans and Specifications as submitted, and shall notifY the City and other pertinent governmental entities of such approval and recommend the City and such other pertinent governmental entities give such approvals and issue such pennits or licenses as are necessary for development of the Project (or the Stage included in the approved Project Plans and Specitications). (e) If the Developer does not dispute the objections to any proposed Project Plans and Specitications contained in any notice from the Agency, it shall submit revised Project Plans and Specifications satisfying such objections, Any changes in the Project Plans and Specifications made by the Developer in response to such a notice shall be made without charge to the Agency, (t) The parties acknowledge and agree that the review and approval of the Project Plans and Specifications with respect to Stage I shall be completed before the Closing Date, and that included in such approval will be a mutually agreed upon development schedule, including significant construction milestones for the Project (or a Stage thereot) and the Infrastructure Improvements. ARTICLE 5. INFRASTRUCTURE ~lPROVEMENTS. . 5,01. Infrastructure Improvements. (a) The Agency agrees to or cause other(s) to plan, construct, install, equip and complete the Infrastructure Improvements so that the Infrastructure Improvements are substantially complete in accordance with the Infrastructure Improvements Plans and Specifications no later than the Infrastructure Improvements Completion Date as shown on Exhibit D, Infrastructure Improvements Schedule, The Agency agrees to coordinate the planning, design and construction and installation of the Infrastructure Improvements with the Project design, construction, equipping and completion as provided in the Infrastructure Schedule. (b) The parties recognize and acknowledge that in the Interlocal Agreement the City has agreed to design, construct and install the Infrastructure Improvements for the Agency as provided in that agreement. The Developer acknowledges and agrees that the design, construction and installation of the Infrastructure Improvements may be undertaken by the City and that the provisions of the Interlocal Agreement pertaining to such actions by the City satisfy the requirements of this Agreement. 5.02. Infrastructure Improvements Plans and Specifications. Mediterranean Village Project Del'eloprnent Agreement . 14 . . . (a) The Agency shall be responsible for the preparation of the Infrastructure Improvements Plans and Specifications, 5.03. Infrastructure Improvements Financing. (a) In no event shall the obligations. either express or implied. of the Agency under the provisions of this Agreement to pay the costs of the Infrastructure Improvements be or constitute a general obligation or indebtedness of the City or the Agency. or both. or a pledge of the ad valorem taxing power of the City or the Agency. or both. within the meaning of the Constitution of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds. The Developer. any Construction Lender or any Contractor. subcontractor. materialman. or ~upplier for any part of the Project. shall not have the right to compel the exercise of the ad valorem taxing power of the Agency or the City or any other governmental entity on any real or personal property or taxation in any fonn to pay the Agency I s obligations or undertakings hereunder, 5.04. Construction of the Infrastructure Improvements, (a) Following approval of the Infrastructure Improvements Plans and Specifications and in coordination with the construction of the Project, but in no event earlier than the Commencement Date, as provided in the Interlocal Agreement, the Agency will cause the City to commence construction of the Infrastructure Improvements and cause it to proceed to substantial completion in accordance with the Infrastructure Schedule except as otherwise agreed, the Infrastructure Improvements shall be at no expense to the Developer. It is the intent of the parties to this Agreement that construction of the Infrastructure Improvements will be substantially complete and the Infrastructure Improvements will be completed by the dates agreed to by the parties in the Infrastructure Schedule, (b) The Infrastructure Improvements and the Project shall be undertaken and completed at such times and in such a manner as may be mutually agreed upon by the Agency and the Developer taking into account the schedule for specific aspects of the construction of such improvements. 5.05. Infrastructure Improvements Completion Certificate. (a) Upon the completion of the construction, installation and equipping of the Infrastructure Improvements in accordance with the provisions of this Article 5 and the Infrastructure Improvements Plans and Specifications such that the improvements are substantially complete, the Agency shall prepare and execute the Infrastructure Improvements Completion Certificate (Exhibit F), and deliver it to the Developer, Upon receipt of the certificate, the Developer shall determine if construction, installation and equipping of the Infrastructure Improvements has been so completed, and, if so, shall execute the certificate and MediteTTtlnean Village Project Development Agreement 15 return it to the Agency. . (b) The Infrastructure Improvements Completion Certiticate shall be in a form sufficient to be recorded in the public records of Pinellas County, Florida, After execution thereof by the parties hereto, it shall be returned to the Agency. which shall be responsible for having the certificate promptly recorded in the public records of Pinellas County, Florida. The Agency shall be responsible for the cost of such recording, 5,06, Infrastructure Improvements Coordination. (a) It is the intent and desire of the parties hereto that the design and construction of each pan of the Infrastructure Improvements and the Project be coordinated with other parts of the Project and the design, construction, installation and equipping of the Infrastructure Improvements and the Project so as to minimize conflicts, improve efficiency and avoid delays in completion of the Project and each part thereof. (b)(1) The Agency shall designate a person to coordinate the planning, construction, installation, equipping and completion of the Infrastructure Improvements with the construction of the Project. (2) The Developer shall designate a person to coordinate the planning, construction, installation, equipping and completion of the Project with the construction of the Infrastructure Improvements . ARTICLE 6. PROJECT FINANCING. . 6,01. Construction Financing, (a) If the Developer elects to obtain Construction Financing, the Developer shall use its reasonable efforts to obtain from a Construction Lender a commitment to provide the Construction Financing as soon as is reasonably possible. Upon obtaining such Construction Financing, the Developer shall notify the Agency that it has obtained said financing and provide to the Agency the name and address of the Construction Lender, (b) The Agency shall have an affinnative right, but not an obligation, to cure any default by the Developer under the Construction Financing, which right shall be expressly provided for in the financing documents providing for the Construction Financing, The parties recognize and acknowledge that the Agency's right under this paragraph (2) is not intended to be superior or ahead of any lien or right of the Construction Lender to enforce its rights and remedies under the financing documents pertaining to the Construction Financing. (c) The Developer covenants and agrees with the Agency that the proceeds of the Construction Financing shall be solely for the purpose of paying costs and fees related to the Mediterranean Village Project De~'elopment Agreement . 16 . . . development and construction of the Project and that such proceeds. together with its own funds or other funds available to it, shall be sufticient to pay the costs of acquiring the Site and the development, construction and completion of the Project. 6,02, Notice of Developer's Default. (a) The Developer covenants and agrees with the Agency that any Construction Financing documents shaH include provisions that if the Construction Lender declares the Developer to be in default or if an event of default has occurred under the financing documents for the Construction Financing, such Construction Lender shall promptly give written notice thereof to the Agency by certitied mail, return receipt requested at its respective address last given to the Construction Lender by the Developer prior to such notice; provided, however, the failure of the Developer to provide the Agency I s address to the Construction Lender or for the Construction Lender to receive any such notice shall not constitute a waiver by or preclude or delay the Agency from proceeding with or enforcing any right or remedy available to it under this Agreement, nor shall it constitute a waiver by or preclude or delay the Construction Lender from enforcing any right or remedy available to the Construction Lender, The notice from the Construction Lender to the Agency shaH state the basis of the default by the Developer, shall identify the particular provision of the financing documents under which the Developer is in default and shall include copies of any pleadings in any proceeding instituted by the Construction Lender incident thereto. (b) Any notice from the Agency to the Developer specifying an event of default by the Developer under Section 13.01 hereof shaH, at the same time it is provided to the Developer, be mailed by the Agency to any Construction Lender by certified mail, return receipt requested, at its address last given to the Agency by the Developer prior to such notice; provided, however, the failure of the Agency to mail any such notice or the Construction Lender to receive any such notice shall not constitute a material breach or default of this Agreement by the Agency, nor shall it constitute a waiver by or preclude or delay the Agency from proceeding with or enforcing any right or remedy available to it under this Agreement, The notice from the Agency to the Construction Lender shall state the basis of the default, the particular provision of this Agreement under which the Developer is in default and shall include copies of any pleadings in any proceedings instituted by the Agency incident thereto. 6.03. Cure of Developer's Default by Lender. (a)(1) Following the Agency providing the notice under Subsection 6,02(b) hereof, the Construction Lender may, at its election, cure or remedy the default by the Developer described in such notice. If the Construction Lender elects to cure such default, it shaH give notice of such election to the Agency and the Developer within sixty (60) days after the Agency issued its notice of default by the Developer as provided in Section 13,01 hereof, (2) So long as the Construction Lender proceeds to cure or remedy the Developer's Met/itennl,eafl Village Project Developme," Agreement 17 default of this Agreement. the Agency agrees not to exercise any right or remedy available to it . resulting from the Developer's default described in the notice and which the Construction Lender has elected to cure for such period of time as shall be reasonably necessary for the Construction Lender to cure or remedy such default, including any time reasonably necessary for the Construction Lender to obtain possession of the Site, if possession is necessary to enable the Construction Lender to cure or remedy such default. (b) If a default by the Developer under this Agreement is timely cured or remedied by the Construction Lender pursuant to this Section 6,03. then the Agency shall not have any rights or remedies against the Developer with regard to such default, except in such an event. the Developer shall be obligated to pay and the Agency may recover from the Developer any reasonable fees. costs or other expenses (including reasonable attorneys fees) incurred by the Agency as a result of said default by the Developer, plus interest on such fees. costs or other expenses from the date they were incurred at an annual percentage rate of twelve percent (12%), (c) If the Construction Lender elects to cure or remedy the Developer's default hereunder as provided in subsection (a) hereof, it shall then be subject to and bound by the provisions of this Agreement and the actions required to be taken to remedy or cure said default that, but for the default by the Developer, would have been applicable to the Developer. (d) If. as a result of the Construction Lender curing or remedying a default by the Developer under this Agreement, the Construction Lender completes the construction of that part of the Project for which the default occurred upon receipt of a written request by the . Construction Lender to the Agency for a construction completion certificate, the Agency shall execute and deliver to the Construction Lender a construction completion certificate for that part of the Project, in the same manner and procedure as if the Developer has requested such a certificate under Section 8,05 hereof. (e) Subsequent to a default under this Agreement by the Developer, if the Construction Lender does not timely elect to cure such default as provided in subsection (a) hereof, or makes such election and proceeds to construct and complete the Project, but fails to complete such construction by the Completion Date for that Stage (subject to extensions for Unavoidable Delays) and such failure shall not have been cured within sixty (60) days (or such longer period as may be reasonably necessary and mutually agreed upon by the Agency and the Construction Lender), then the Agency may proceed with any remedies available to it under Section 13.01 hereof. 6.04, Construction Lender Not Obligated to Construct. (a) If the Construction Lender elects not to cure a default by the Developerhereunder as provided in Subsection 6,04(a) hereof, the Construction Lender and any other holder who obtains title to or possession of the Site, or any part thereof, as a result of foreclosure proceedings or any other action in lieu thereof, including (i I) any other party who thereafter Mediterranean Village Project Development Agreement . 18 . . . obtains title to the Site or such part from and through such holder or. (ii) any other purchaser at a foreclosure sale, or (iii) any other grantee under a deed in lieu of foreclosure. and any of such parties' successors and assigns, shall not be obligated by this Agreement to construct or complete the Project, or any Stage, or to guarantee such construction or completion or to perform any of the Developer's other agreements, obligations or covenants under this, Agreement, (b) Nothing in this Section 6.04 or any other provisions of this Agreement shall be deemed or construed to permit or authorize any Construction Lender or any other party obtaining title to or possession of the Site, or any part thereof, to devote the Site, or any part thereof, to any use, or to construct any improvements thereon, other than the uses and improvements provided in the Plan and in the Project Plans and Specifications, 6,06. Agency Cures Developer's Default. If prior to the issuance of the Project Completion Certificate for Stage I, the Developer defaults under this Agreement or under, and to the holder of, any mortgage or other instrument creating an encumbrance or lien upon the Site, or any part thereof, the Agency may cure such default or breach. In such an event, the Agency, as the case may be, shall be entitled, in addition to and without limitation upon any other rights or remedies or payment of any other amounts to which it shall be entitled by this Agreement, operation of law I or otherwise, to reimbursement from the Developer for all costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by the Agency in curing such default, together with interest thereon at a per annum rate equal to twelve percent (12 %), Until such amount is paid, the Agency shall have a lien on the Site for the amount of such reimbursement; provided, that any such lien shall be subject and subordinate to the lien of any then existing mortgage of the Site in favor of the Construction Lender, ARTICLE 7. SITE CONVEYANCE. 7.01. Findings: Representations, (a) The Agency and the City own certain real property located in the corporate limits of the City and in the Area, the legal description of which is set forth as Exhibit "A" attached hereto and made a part hereof. (the "Site"), (b) Pursuant to the Interlocal Agreement, the City has agreed to convey certain property within the Site to Agency (Exhibit "A-3"). (c) Developer desires to purchase the Site from Agency. (d) Agency desires to sell and convey the Site to Developer. 7 .02. Agreement to Sell and Purchase, The Agency hereby agrees to sell and convey the Site to Developer and Developer hereby Mcclilcrrallcarr Village Project Developme1lt Agreemellt 19 agrees to purchase the Site from Agency, upon the terms and conditions hereinafter in this . Article 7, 7,03. Purchase Price. The purchase price of the Stage I Property is TWO HUNDRED EIGHTY SEVEN THOUSAND FIVE HUNDRED FORTY THREE DOLLARS ($287,543,00), more or less, The purchase price of the Stage II Property is NINE HUNDRED THIRTY FIVE THOUSAND SEVEN HUNDERED THIRTY FOUR DOLLARS ($935.734,00), more or less, The purchase price of the Stage III Property is SIX HUNDRED THOUSAND SIXTY SEVEN DOLLARS ($600,067,00), more or less, The Purchase Price of each property is $7,75 per square foot with the square footage to be determined by a survey, The amount to be paid by the Developer to the Agency in consideration of the conveyance of the Property to the Developer is hereinafter referred to as the "Purchase Price," 7.04. Site Evaluation, (a) From and after the Effective Date hereof during the term of this Agreement, the Developer and its agents and representatives shall be entitled to enter upon the Site for inspection, soil tests, examination, and such other matters and investigations as Developer deems necessary and appropriate. In this regard, no such examination will be deemed to constitute a waiver or a relinquishment on the part of Developer of its right to rely on the covenants, . representations, warranties and agreements made by Agency or upon the agreements provided to Developer by Agency. However, the aforementioned notwithstanding, Developer has exclusive responsibility for determining the geotechnical status and sufficiency of the site. Developer will restore any disturbance to the Site caused by its acts and will hold Agency harmless and indemnify Agency from and against any and all damages and liability occasioned by any claim asserted against Agency caused by such examination. (b) Notwithstanding any other provision of this Agreement, Developer shall have the absolute right until April March 28, 2002, (which the parties acknowledge to be the anticipated Closing Date) for the Stage I Property to review and examine the Site and the items provided from Agency (herein referred to as the "Evaluation Period"). At any time prior to the expiration of the Evaluation Period, Developer may terminate this Agreement if, in its sole discretion, Developer determines that the Site or the contemplated development or construction thereon is not economically or otherwise acceptable to Developer notwithstanding anything contained in Paragraph 13 .05 of this Agreement to the contrary, Developer may terminate this Agreement as provided in Section 13 .05 hereof, 7.05. Title. (a) Five (5) days before the Closing Date for each Stage, the Agency shall furnish to Mediterranean Village Project Development Agreement . 20 . . . Developer, at Agency's expense, a commitment for the issuance of an owner's policy of title insurance for the Stage Property (including any easements to be granted by Agency to Developer hereunder) by a title insurance company acceptable to Developer in the standard form adopted by the American Land Title Association. This commitment shall be in the amount of the total Purchase Price of the Stage Property, shall show in Agency a good and marketable title in fee simple, free and clear of all liens and encumbrances without exception other than those pennitted under the provisions of Section 7,14 hereof (the "Permitted Exceptions ") in a form reasonably acceptable to Developer and shall be refereed to hereinafter as the "Title Commitment", Agency shall cause the standard exceptions to be deleted. (b) If the Title Commitment, any update thereof or subsequent title commitment or the survey delivered to Developer in connection with the Stage Property shows that the title is defective or unmarketable or that any part of the Stage Property is subject to liens, restrictions, easements, encroachments or encumbrances of any nature whatsoever other than those pennitted under the provisions of Section 7,14 hereof. Developer shall give Agency a reasonable time (not to exceed sixty (60) days after Developer has given written notice to Agency of any unacceptable conditions of title) within which to remedy or remove any such unacceptable conditions of title, Failure of Agency to remedy or remove any such unacceptable condition of title shall constitute a grounds for tennination as provided in Section 13,05, unless Developer gives Agency its written waiver of such unacceptable condition of title, (c) Within thirty (30) days after closing, Agency shall furnish to Developer, at Agency's expense, a standard ALTA Marketability Form B-1970 (Rev, 10/17/70 and Rev. 10/17/84) owner's policy of title insurance based on the Title Conunitment. Such policy will be issued by the title company that issued the Title Commitment, will be in the amount of the Purchase Price and will insure Developer's fee simple title or easement interests, as the case may be, to the Site subject to no exceptions other than the exceptions permitted pursuant to Section 7.14, Agency shall pay the premium charged for the issuance of any owner's policy of title insurance to the extent of the Purchase Price showing Developer as the fee simple owner or easement holder, as the case may be, of the Stage Property. 7,06, Survey. (a) The Agency, at Agency's sole cost and expense, shall employ a surveyor licensed by the Stare of Florida to prepare a current survey of the Stage Property, which survey shall be delivered to Developer five days before the closing date for each stage. (b) The survey shall: (i) Be prepared in accordance with the minimum standards (including Surveyor's Certification) required in the State of Florida for removal of the survey exception from the owner's policy of title insurance issued for the Site. Mediterrallean Village Project Developmellt Agreemellt 21 (ii) Set forth an accurate metes and bounds description of the Site, the gross number . of acres contained in the Site, (iii) Locate all existing easements and rights of way, whether recorded or visible (setting forth the book and page number of the recorded instruments creating the easement), (iv) Show any encroachments Onto the Site from adjoining property and any encroachments from the Site ontO adjoining property, (v) Show all existing improvements (such as buildings, power lines, fences, roads, driveways, railroads, underground pipelines, etc,) and all rivers, creeks drainage ditches or other water courses, (vi) Show all dedicated public streets providing access to the Site and whether such access is paved to the propeny line of the Site, (vii) Identify any flood zones as defined on Federal Flood Insurance Rate Maps (F.I.R.M.) for Pinellas County, Florida that affect the Site. (viii) Show all applicable set back lines with reference to the source of the setbacks, (ix) Show all existing trees located upon the Stage Propeny, (The Developer agrees to pay the cost of any tree survey). . (x) Be certified to the Developer, 7,07. Rights and Duties of Agency, (a) Agency shall cooperate in good faith with Developer in Developer's evaluation of the Site and shall execute all documents or perform such other acts, reasonably necessary to enable Developer to satisfactorily complete its evaluation of the Site and shall provide to Developer and its consultants any information or documents reasonably required by Developer and in Agency's or its consultant's possession which would assist Developer in such evaluation and preparation. (b) Agency shall reaffinn in writing to Developer that the covenants, warranties and representations set forth herein are true and correct as of the Closing Date. 7.08, Rights and Duties of Developer. Developer agrees to timely commence and pursue its evaluation of the Site hereunder in good faith; provided, however, at any time, Developer may cease such evaluations and terminate this Agreement as provided in Section 7.04(b). Meclilemmean Village Project Development Agreement . 22 . . . 7,09, Agencv's Obligation to Convev. At such time as Agency has received payment in full of the Purchase Price. Agency shall immediately convey to Developer the Stage Property. 7,10. Conditions to Closing, (a) The obligation of Developer to purchase the Site is subject to the following unless waived by the Developer on or before the Closing Date: (1) The representations and warranties of Agency set forth herein being true on and as of the Closing Date with the same force and effect as if such representations and warranties were made on and as of the Closing Date; (2) The Developer has approved the Infrastructure Improvements Plans and Specifications, and the Infrastructure Schedule for the installation and completion of the Infrastructure Improvements. (3) The Project shall be in compliance with the zoning, land use and concurrency requirements for the Site, (4) Developer shall have received its Building Permit for the Stage I. as well as any other Permits required in connection with Stage I of the Project. (5) The Agency shall have either paid or shall reimburse the Developer for all required Site Plan review fees, Building Permit fees and Preliminary Plat review fee imposed by the City with respect to the Stage. (6) As a condition to closing on the Stage II Property only, the Agency shall have obtained from the Florida Department of Environmental Protection (the Department) and provided Developer a copy of a letter or other written documentation from the Department documenting that the environmental remediation work has been completed at the Site in compliance with all the requirements of the Brownfield Site Rehabilitation Agreement (BSRA) and the applicable rules of the Department for issuance of a Site Rehabilitation Completion Order, except for the requirement that the Agency comply with and continue implementing the plan for natural attenuation of the groundwater contamination, with monitoring (the . Monitoring Only Plan), followed by the submittal and approval of a Site Rehabilitation Completion Report once all monitoring or other requirements of the MOP have been met. Developer and the City acknowledge, however, that if the monitoring under the Monitoring Only Plan fails to show that the groundwater has met cleanup target levels within five years after approval of the plan, the City may have an obligation under the BSRA to conduct further assessment and remediation at the Site, in order to obtain the Site Rehabilitation Completion Meditermneall Village Project De~'elopme"t Agreement 23 Order, . (b) The obligation of the Agency to convey each Stage Property to the Developer is subject to the following unless waived by the Agency on or before the Closing Date: (1) The representations and warranties of the Developer set forth in Section 11.01 being true on and as of the Closing Date with the same force and effect as if such representations and warranties were made on and as of the Closing Date; (2) The Developer is not then in default of this Agreement as provided in Section 13,01. (3) The Agency shall have approved the Project Plans and Specifications, (4) The Developer shall have approwd the Infrastructure Improvements Plans and Specifications and the Infrastructure Schedule, (5) The parties shall have agreed to the construction schedule and milestones for development of the Stages of the Project and the Infrastructure Improvements and arrangements for coordination of the construction thereof. (6) The Developer has paid $130,000 to the City as provided in paragraph 11.010). (7) Prior to closing on Stage II Property. Developer shall have binding contracts for sale on at least 50% of the Stage I units. . (8) Prior to closing on Stage ill Property. Developer shall have binding contracts for sale on at least 50% of the Stage II units. 7.11. Closing, Provided all conditions to conveyance of the Stage I Property to the Developer have been satisfied, Developer shall purchase the Stage I Property on or before April 28, 2002, (herein referred to as the "Closing Date" on Stage I Property). Provided all conditions to conveyance of the Stage II Property to the Developer have been satisfied, Developer shall purchase the Stage II Property on or before April 28, 2003, (herein referred to as the "Closing Date" on Stage II Property). Provided all conditions to conveyance of the Stage ill Property to the Developer have been satisfied, Developer shall purchase the Stage ill Property on or before April 28, 2004 (herein referred to as the "Closing Date" on Stage III Property), The parties may mutually agree to change the Closing Dates, In the event Agency is delayed in fulfilling the closing conditions set forth in Section 7.10(a), Developer shall be entitled to an extension for the period of delay but not to exceed 60 days. Mediterranean Village Project Del'e(opment Agreement . 24 . . . 7.12, Closing Procedure. (a) At closing, the Agency shall convey to Developer by special warranty deed, in the form attached hereto as Exhibit "e", title in fee simple of the Stage Property to Developer as provided on Exhibit~ "A-I".. "A-2.... and "A-3" , free and clear of any and all liens, encumbrances, conditions, easements, assessments, restrictions except those permitted in this Agreement and the Permitted Exc~ptions, (b) At closing, the Agency shall deliver an endorsement to the title insurance commitment required herein and such further instruments as may be required by Developer, Developer's counselor the title company to vest in Developer title of the Stage Property as provided herein, all at Agency's expense, (c) Developer shall pay the Purchase Price for the Stage Property to Agency in immediately available funds acceptable to Agency, (d) Ad valorem real estate taxes and any personal property taxes shall be prorated as of the Closing Date, based on application of the preceding year's rates to the latest assessed valuation or statements issued to Agency for the current year's assessment, if available, (e) Agency shall pay all special assessments and taxes, interest and penalties levied against the Stage Property prior to the Closing Date, (f) Agency has terminated all original leases, if any, for the Site or any part thereof and all tenants will have vacated the Stage Property by the Closing Date. (g) Agency shall deliver to Developer all original documents pertaining to the Stage Property including licenses and pennits, if any. (h) Agency shall pay for all documentary stamps and transfer taxes, if any, for the deed, and for the preparation, recording and documentary stamps for all closing documents, lien releases and title curative instruments, its own attorney's fees, the premiums for the owner's title insurance policy, and for recording the deed and all other closing costs and expenses. The Developer shall pay its own attorneys' fees. (i) As required by paragraph 7.1O(a)(6) above, Agency shall provide written documentation from the Department that Agency has completed all the environmental remediation work at the Site required by the BSRA except with respect to groundwater contamination, which will be addressed by the Monitoring Only Plan. It is anticipated that the letter will require monitoring only and deed restrictions governing the use of ground water in the site described in Exhibit A and construction activities requiring the removal or penetration of the protective cover over any subsurface soil meeting alternative cleanup target levels rather than statewide default levels for any contaminant, in the area described in Exhibit K. Medilerrallean Village Project Development Agreement 25 7,13. Possession. (a) Possession of the Stage Property shall pass to Developer upon completion of the Closing on the Stage. (b) Agency agrees to grant a license (Exhibit E) to Developer to place a temporary sales facility on the Stage I Property upon the effective date of this Agreement, provided, however, that Developer must meet all applicable Code requirements. if} Angencv agrees to grant the developer a ri~ht of entrY to the Stal!e II property for the purpose of removal of peat and backfiJ1ing the property as provided in Exhibit M. 7.14. Condition of Title, Title to the Stage Property at the time of conveyance shall be free of all liens, restrictions, easements, encroachments and encumbrances of any nature whatsoever except the following (the "Permitted Exceptions"): (a) payable. Real estate taxes for 2001 and subsequent years that are a lien but not yet due and (b) Comprehensive land use planning, zoning and building ordinances, regulations and requirements adopted by governmental or municipal authority having jurisdiction. (c) It is anticipated that DEP will require a restrictive covenant prohibiting the use of ground water in the area described in Exhibit A and may at least temporarily require a restrictive covenant governing construction activities requiring the removal or penetration of the protective cover over subsurface soil in the area described in Exhibit K, These restrictive covenants_shall constitute a permitted exception, (d) Those additional exceptions as contained in the Title Commitment to be delivered by Agency to Developer at closing which Developer, in its sole and absolute discretion, has elected to accept. 7.15, Taxes and Assessments. Agency agrees to pay all taXes and assessments that become a lien on the Site prior to the Closing Date promptly when due. All special assessments applicable to any portion of the Site, delinquent taxes and delinquent installment of special assessments, together with any penalties and interest thereon, shall be paid by Agency on or before the Closing Date. 7.16. Covenants . Warranties and Reoresentations. . . Mediterranean Villnge Project De.'clopmc"t Agreemetlt . 26 . . . Agency hereby covenants, warrants and represents to Developer that: (a) The title of Agency to the Stage Property will at time of closing be absolute, good and marketable and free and clear of all liens and encumbrances except for the Permitted Exceptions, (b) Agency has the full legal power to own and convey the Site as provided for herein, without any other consent or proceeding required from any other person, entity or organization. (c) There arc no legal proceedings pending, threatened or contemplated against Agency or the City in any court, tribunal or administrative agency which affects the Site or which give or will give rise to any claims or liens against the Site or affect Agency's right to transfer the Site. (d) There are no rights of possession, use or otherwise, outstanding in third persons by reason of unrecorded leases, land contracts, sale contracts, options or other documents other than in favor of the Agency, other than leases disclosed to Developer and which have been terminated and will be vacated prior to the Closing Date. (e) No work has been performed or is in progress on or at the Site and no materials have been furnished to Agency or the Site or any portion thereof which after closing could give rise to any mechanics', materialmen, or other liens, and at the Closing Agency shall furnish to Developer an affidavit attesting to the absence of any such liens or rights to liens. (t) No assessment for public improvements or otherwise have been made against the Site which remain unpaid, including without limitation, any special assessments or those for construction of water, sewer, gas and electric lines, nor have any been proposed. (g) Agency has no information or knowledge of any change contemplated in the applicable laws, ordinances or restrictions, or any judicial or administrative action, or any action by adjacent land owners or natural or artificial conditions upon the Site which would prevent, limit, impede or make more costly the present or proposed use of the Site except as disclosed herein. (h) From and after the date hereof, Agency shall refrain from (1) making any material changes on or about the Site other than as required by this Agreement; (2) creating and incurring or permitting to exist any mortgage, lien, pledge or other encumbrance in any way affecting the Site; or (3) committing any waste or nuisance on the Site~ (i) From and after the date hereof, and at any time prior to transfer of title to Developer, Agency shall not grant, sell or convey any interest in the Site, including easements or /'rIedi/efTaneall Village Project De~'e/opmellt Agreement 27 rights of way, to any person. corporation (public or private), governmental body or political subdivision without the written permission of Developer, 0)(1) Compliance with Environmental Laws, The Agency acknowledges that the Developer is an innocent prospective purchaser who has neither caused nor contributed to any environmental contamination of the Site before its conveyance by the Agency to the Developer. Reflecting this acknowledgement. this Agreement sets forth special provisions for environmental indemnification of the Developer by the Agency in section 10,03 below. In addition. the Agency has disclosed the environmental condition of the Site, as assessed and reported by URS/Dames & Moore in the following reports: (a) Thomas Carberry. URS, Summary Report of Environmental Activities [for] Property B. 901-927 Cleveland Street. Clearwater. Florida (December 2000) (Job No, 38894-017-141: (b) Site Assessment and Rcmedial Action Plan prepared by URS Corporation and dated April 2001: (c) Summary Report of Supplemcntal Soil Delineation Activities prepared by URS and dated August 2001; and (d) Site Assessment Summary Letter Report (to David Gerard of DEP) dated November 16. 2001. With rcspect to the Stage II Property, the Developer acknowledges receipt of the Phase I and Phase II Environmental Site Assessment (ESA) Report, Town Pond Project, Downtown Clearwater, Dimmitt Chevrolet Properties, Properties C, D. and E. completed by International Technology Corporation dated March 4, 1999. The Agency acquired the Site from the City, which shall remediate the soil contamination by excavating and removing the contaminated soil in accordance with the Brownfield Site Rehabilitation Agreement (BSRA) dated July 12,2001, between the City and the Florida Department of Environmental Protection (the Department), the Interim Source Removal Plan prepared by URS Corporation and dated November 200 I, ami the Focused Risk Assessment (Property B) prepared by Hazardous Substance & Waste Management Research, Inc" for URS and dated November 2001. At its own expense the City shall monitor the groundwater contamination and enter into a restrictive covenant restricting the use of groundwater in the Site described in Exhibit A in accordance with the BSRA and the Department's approval of the City's Monitoring Only Plan to be submitted in the revised Remedial Action Plan required by the BSRA. Subject to these disclosures, the Agency has: (i) materially complied with all applicable Environmental Laws and (ii) not received any notice of alleged outstanding violation of such laws, nor does the Agency have knowledge of any facts or circumstances that could constitute such a violation. Subject to the disclosure described above, to the best of the Agency's knowledge, there are no Hazardous Substances on, above, within, underneath or in groundwater ~ ~ underlying the Site which exceed applicable standards under any Environmental Laws, (2) Definitions, For purposes of this Article 7, the terms "Hazardous Substances" and "Environmental Laws" shall have the following meanings: (i) "Hazardous Substances" means any substance or material: (a) identified in Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U . S. C. ~960 I, as the same may be amended from time to time; or (b) determined to be toxic, a pollutant or contaminant, under Federal, state or local statute, law, ordinance, rule or regulation or judicial or administrative order or decision, as same may be amended from time to time, . . Mediterranean Village Project De.'elopmellt Agreement . 28 . including but not limited to (i) hazardous wastes as identified pursuant to the Resource Conversation and Recovery Act, 42 U.S.C, S6901, et seq., as the same may be amended from time to time, or (ii) pollutants, petroleum and petroleum products as detined in either Chapter 403 or Chapter 376, Florida Statutes. as the same may be amended from time to time. (ii) "Environmental Law" or "Environmental Laws" shall mean any Federal, state or local statutory or common law relating to pollution or protection of the environment, including without limitation, any common law of nuisance or trespass, and any law or regulation relating to emissions, discharges, releases or threatened releases of Hazardous Substances into the environment (including without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances. (k) Agency has no knowledge of and makes no representations concerning the physical condition of the Site or any portion thereof except as has been specifically disclosed in writing to Developer in Exhibit J, (I) Agency has no knowledge that any commitments have been made to any governmental authority, utility company, school board, church or other religious body, homeowners' association, or any other organization, group or individual relating to the Site which would impose an obligation upon Developer or its successors or assigns to make any contributions or dedications of money or land or to construct, install or maintain any . improvements of a public or private nature on or off the Site. (m) There are no facts known to Agency materially affecting the value of the Site which are not readily observable by Developer or which have not been disclosed to Developer. (n) Present zoning and land use classification of the Site according to the current and applicable zoning ordinances and the applicable land use plan is satisfactory for the utilization of the Site for residential dwelling as contemplated by this Agreement. There are no proceedings to change such zoning or land use classifications or the conditions applicable thereto. There exists no violation of any requirement or condition to such zoning or land use classifications which is applicable to the Project. (0) The Site is not included in any national, state, county or municipal historic registry or similar classification, nor does the Site include any historical or archeological artifacts . (p) The Agency has full power and authority to enter into this Agreement and consummate the transactions contemplated hereby and neither this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation of any order, rule, regulation, agreement or instrument or any charter or organizational documents to which the Agency or the City is subject. No further approvals or consents by third parties or . Mec/i/erranean Village Project De~'elopmetl/ Agreement 29 governmental bodies are required in order for the Agency to enter into this Agreement and . consummate the transactions contemplated hereby, except for the conveyance of the Stage III Properties by the City to the Agency, (q) The covenants, representations and warranties of the Agency and the City as contained herein shall be true and correct as of the Closing and shall survive the Closing of this transaction, 7.17, Condemnation, In the event that prior to the Closing Date, all or any portion of the Site or any rights or easements therein shall be taken by condemnation or rights of eminent domain or like process, or shall be threatened therewith, and the same, in Developer's reasonable opinion, would have a materially adverse impact upon Developer's use of the Site, Developer shall, within fifteen (15) days after having received notice thereof from Agency, elect in writing to either (a) continue this Agreement in full force and effect, notwithstanding such taking or threatened taking, in which case Developer shall be required to continue the purchase of the Site, (b) delete the portion of the Site condemned or threatened to be condemned from this Agreement, with a proportionate reduction in the Purchase Price, or (c) tenninate this Agreement. 7.18, Real Estate Commission, Developer and Agency represent that they have not used any brokerage services with respect to the conveyance of the Site to the Developer as herein contemplated. The Agency and the Developer shall each hold the other harmless and indemnify the other party, its respective successors, assigns, employees, directors and agents from any and all costs, damages, liabilities and expenses, including reasonable attorney's fees, incurred by reason of any claim for fee or commission of any kind based on the sale contemplated herein. . 7,19. Maintenance of Site. Through Closing, the Agency shall maintain the Site in good order, 7.20. Radon Gas Notice. As required by Section 404,056(6), Florida Statutes, the following notice is hereby given to the Developer as the prospective purchaser of the Site, which may have buildings, located thereon, and the Developer acknowledges receipt of such notice: "Radon Gas: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information Mediterranean Village Project Development Agreement . 30 . . . regarding radon and radon testing may be obtained from your county public health unit. " 7,21, Impact Fees, The Agency agrees to satisfy on behalf of the Developer the following fees for each Stage of the Project: Building pennit fees. plan review fees and preliminary plat review fees, Reimbursement shall be within 45 days, The Agency agrees to payor otherwise satisfy the following fees for Stage I units for which a certificate of occupancy is issued by May 30, 2003: Development impact fees, sewer impact fees, transportation impact fee, water impact fees including water meter and tapping fees. state surcharge fee, certificate of occupancy fees, stormwater buy-in fee, community development approval fee, and any other City impact fees which are subsequently adopted, For units for which a certificate of occupancy is issued after May 30, 2003, and before May 30, 2004, the Agency shall pay 50% of the above fees for each unit. For units for which a certificate of occupancy is issued after May 30, 2004, the Developer shall be responsible for payment of all fees. The Agency agrees to payor otherwise satisfy the following fees for all Stage II units for which a certificate of occupancy is issued by May 30, 2004: Development impact fees, sewer impact fees, water impa~t fees, state surcharge fee, certificate of occupancy fees, stormwater buy-in fee, and community development approval fee. For units for which a certificate of occupancy is issued after May 30, 2004, and before May 30, 2005, the Agency shall pay 50% of the above fees. For units for which a certificate of occupancy is issued after May 30, 2005, the Developer shall be responsible for payment of all fees. The Agency agrees to payor otherwise satisfy the following fees for all Stage III units for which a certificate of occupancy is issued by May 30, 2005: Development impact fees, sewer impact fees, water impact fees, state surcharge fee, certificate of occupancy fees, stormwater buy-in fee, and community development approval fee. For units for which a certificate of occupancy is issued after May 30, 2005, and before May 30, 2006, the Agency shall pay 50% of the above fees, For units for which a certificate of occupancy is issued after May 30, 2006, the Developer shall be responsible for payment of all fees, In the event that the Infrastructure Improvement known as the Town Pond is not substantially completed by May 30, 2003, the dates contained in this Section 7.21 shall be extended for a like period for the period that the Town Pond is delayed until completion of the Town Pond. 7,22 Tax Credit. Agency agrees to apply for or cause the City to apply for the Tax Credit for the voluntary Mediterranean Village Project Del'e/opme"t Agreement 31 cleanup activity for the site pursuant to ~199.1055 and ~376.80, Florida Statutes, The Agency . agrees to cause such credits to be transferred at the direction of the Developer to the extent allowed by law. ARTICLE 8. CONSTRUCTION OF THE PROJECT. 8,01, Site Clearance. The Developer shall be responsible for clearance of the Site such that each part thereof is in a condition ready for development to commence as of the Commencement Date of each Stage. Permits issued by the City for pre-construction activities on the Site, including site clearance. shall not be considered a Building Permit for purposes of this Agreement. 8.02. Construction of the Proiect. (a)(1) The Developer shall construct the Project on the Site substantially in accordance with the Project Plans and Specifications therefor. Subject to Unavoidable Delay and the terms and conditions in this Agreement, the Developer shall commence construction of each Stage of the Project within ninety (90) days of the Closing Date for each Stage. (2) For purposes of this Section 8,02, "commence construction" of the Project means commencement of meaningful physical development of that pan of the Project as authorized by the Building Pennit therefor which is continued and prosecuted with reasonable diligence toward . and with the objective of completion of that part of the Project. (3) If for any reason, excluding Unavoidable Delay, the Developer does not commence construction of Stage I on or before the ninetieth (90th) day after the Closing Date, then as of that date the Agency shall no longer be obligated to plan, design, construct or install the Infrastructure Improvements in accordance with the Infrastructure Schedule, and Agency and Developer shall thereafter undertake to mutually agree upon a revised Infrastructure Schedule for the design, construction and installation of the Infrastructure Improvements by Agency. (b)(I) After the Commencement Date, the Developer shall continue, pursue and prosecute the construction of each Stage of the Project with reasonable diligence to completion by the Completion Date and shall not at any time actually or effectively have abandoned (or its Contractor having actually or effectively abandoned) the Site. For purposes of this subsection (b), "abandoned" means to have ceased any construction work which effectively advances the construction of that Stage toward completion, including all or substantially all the construction work force withdrawing from the Site. This section shall apply to each Stage of the Project as construction commences on the Stage, (2) All construction work on each Stage of the Project shall be done substantially in accordance with the Project Plans and Specifications approved therefor pursuant to Article 4 MediteTTOntan Village Project Development Agreement . 32 . . . hereof. (3) All obligations of the Developer with respect to commencement, continuation and completion of construction of each part of the Project shall be subject to delays and extensions from time to time for Unavoidable Delay, The Developer shall not be deemed to be in default of this Agreement to the extent construction or completion of the Project, or any part thereof. is not complete by reason of Unavoidable Delay, (c) For purposes of this Section 8,02, "completion." "complete." "substantially complete" or "substantial completion" means. \vith respect to construction of either of Stage I or Stage II of the Project. the later of a certificate of occupancy for ninety (90%) percent of the units for that Stage of the Project has been issued by the City or other appropriate governmental authority having jurisdiction over the Site, (d)(l) For each Stage of the Project, commencing on the fifteenth (15th) day of the calendar month following the calendar month in which the Commencement Date occurs and continuing until the Completion Date for that Stage, the Developer shall make monthly reports to the Agency in such detail and in such form as may reasonably be requested by the Agency as to the actual progress of the construction of that Stage of the Project. (2) If the Agency believes adequate progress in the construction of any part of the Stage of the Project is not being made, the Agency shall give notice to the Developer that adequate progress is apparently not being made in the construction of that Stage of the Project and to respond within ten (10) business days thereafter as to why adequate progress is or is not being made toward completion of that Stage of the Project. (e)(1) The Developer agrees that each contract between the Developer and a Contractor for any part of the Project shall provide, among other things, that: (i) notice shall be given to the Agency of any material defaults thereunder by the Developer or the Contractor; and (ii) in the event of a material breach by the Developer of such contract that is not being contested by the Developer, the Agency shall have the right, but not the obligation, to cure any defaults by the Developer under such contract without penalty to the Agency or stoppage of the work. (2) If the Agency elects to cure a material default by the Developer under a contract between the Developer and a Contractor, upon receipt of a notice to that effect from the Agency, the Developer shall immediately deliver to the Agency all plans, specifications, drawings, contracts and addenda thereto pertaining to the construction of that part of the Project which are in its possession or control (and shall instruct the Project Professionals and any other persons in possession or control of such plans, specifications, drawings and contracts to deliver them to the Agency), (3) The right of the Agency to cure any default by the Developer as provided in paragraph (1) above shall be subject and subordinate to the right of the Construction Lender to MedilCrranean Village Project Developmelll Agreemellt ..,.., ,,"' cure such default. . 8,03, Maintenance and Repairs. During the construction of each Stage of the Project, the Developer shall, at its own expense, keep that Stage of the Project in good and clean order and condition and the Developer shall promptly make all necessary or appropriate repairs, replacements and renewals thereof, whether ordinary or extraordinary, foreseen or unforeseen, All repairs, replacements and renewals shall be equal in quality and class to the original work, \Vhen making such repairs, replacements or renewals. the Developer shall comply with all applicable laws, ordinances, codes and regulations. 8.04, Proiect Alterations or Improvements, During the construction of any Stage of the Project, the Developer may, from time to time. make alterations and improvements, structural or otherwise, to the Project as the Developer deems desirable and consistent with the Project Plans and Specifications for the uses contemplated by this Agreement; provided, however, that prior to the commencement of any material alterations or improvements of sufficient size and scope as to constitute a material change in the previously approved Project Plans and Specifications, the Developer shall notify the Agency of such material change and may submit a change, amendment or revision to the Project Plans and Specifications to the Agency for review as provided in Sections 4,03 and 4.04 hereof. Nothing in this Section 8,04 is intended nor shall be deemed to limit or restrict the exercise of governmental or regulatory powers or authority by the City or any other governmental entity or to enlarge its regulatory authority . 8,05, Completion Certificate. . (a)(1) Upon the substantial completion of the construction of a Stage of the Project in accordance with the provisions of this Article 8 (particularly including subsection 8.02(c)), the Developer shall prepare and execute the Completion Certificate for that Stage, which shall then be delivered to the Agency. Upon receipt of the certificate the Agency shall promptly and diligently proceed to determine if construction of the applicable Stage has been completed substantially in accordance with the Project Plans and Specifications and this Agreement. Upon making such a detennination the Agency shall execute the certificate and return it to the Developer. The date of the Completion Certificate shall be the date when all parties shall have executed said certificate, (2) The Completion Certificate shall constitute a conclusive determination by the parties hereto of the satisfaction and termination of the obligations of the Developer hereunder to construct the Stage described in the certificate; provided, however, that nothing in this Section 8.05 shall be a waiver of the rights, duties, obligations or responsibilities of the City or any other governmental entity acting in its regulatory or governmental capacity or an approval of said construction for purposes of the issuance of a certificate of occupancy for the Project or any Stage thereof. Mediterranean Village Project Development Agreement . 34 . . . (3) The parties agree that it is their intent that the review by the Agency for purposes of the Completion Certiiicate determination pursuant to this Section 8,05 is not to be an additional or duplicate inspection over and above that required for purposes of the Building Permit, including the issuance of a certificate of occupancy. The Agency agrees that for purposes of determining if the Stage has been substantially completed in accordance with the Project Plans and Specifications, the issuance of a certificate of occupancy for the Stage shall be a conclusive detemlination of substantial completion for purposes of this subsection (a) and, if such certificate has been determined to have been issued, then the Agency agrees to execute the Completion Certificate, (b)(1) If the Agency shall refuse or fail to execute the Completion Certificate after receipt of a request by the Developer to do so, then the Agency shall, within ten (10) days after its receipt of such request, provide the Developer with a written statement setting forth in reasonable detail the reason(s) why the Agency has not executed the Completion Certificate and what must be done by the Developer to satisfy such objections so that the Agency would sign the certificate. Upon the Developer satisfying the Agency's objections, then the Developer shall submit a new request to the Agency for execution of the Completion Certificate and that request shall be considered and acted upon in accordance with the procedures in paragraph (a)(1) for the original request. (c) The Completion Certificate shall be in a fonn sufficient to be recorded in the public records of Pinellas County, Florida. After execution by the Agency, it shall be promptly returned to the Developer who shall record the certificate in the public records of Pinellas County, Florida, and pay the cost of such recording. 8.06. Agencv Not in PrivitY with Contractors, The Agency shall not be deemed to be in privity of contract with any Contractor or provider of goods or services with respect to the construction of any part of the Project or any Stage thereof. 8,07. Repurchase of Stage I Propertv. Stage IT Property or Stage III Property. (a) In the event Developer shall not have commenced construction of Stage I, Stage II or Stage ill of the Project within one (1) year following each Closing Date, in such event, Agency shall have an option to purchase the Stage Property upon the tenns and conditions as set forth in this Section 8.07 (the "Stage Property Option"). The Stage Property Option shall be exercised by Agency within ninety (90) days following the expiration of the one (1) year period following the Closing Date. The Stage Property Option shall be exercised by Agency providing written notice to Developer of its intent to exercise the Stage Option within said ninety (90) day period (time being of the essence with respect to such notice). In the event that Agency should fail to provide such written notice of its exercise of the Stage Property Option within said ninety (90) day period, then the Stage Property Option shall immediately and automatically lapse. (b) Upon proper and timely exercise of the Stage Property Option, Agency and Mediterranean Village Project De~'eloptnellt Agreement 35 Developer shall undertake to close the conveyance of the Stage Property by Developer to Agency . within sixty (60) days following the date of notice of the exercise of the Stage Property Option upon the following terms and conditions: (1) The price to be paid by Agency to Developer for the Stage Property shall equal the price per square foot of the Site paid by Developer to Agency at the Closing Date multiplied by the square footage of the Stage Property, plus Developer's costs of any infrastructure improvements or drainage or utility improvements which have been installed by Developer after notice thereof to the Agency and which benetit the Stage Property (such costs to be calculated on a pro rata basis based upon the benefit such improvements provide to the Property as compared to the Property not purchased by the Agency). (2) Agency shall pay for the cost of any documentary stamp taxes imposed upon the deed conveying the Stage Property from Developer to Agency, In addition, Agency shall pay for any surveyor title insurance Agency elects to obtain in connection with such conveyance, (c) Until the commencement of construction by the Developer on the Stage Property or the expiration of the one (1) year period in which such construction was to commence plus the ninety (90) day period during which the Agency may exercise its option to repurchase the Stage Property, the Developer covenants and agrees with the Agency not to cause any mortgage or lien to be levied, assessed or placed on the Stage Property with respect to any financing of Developer's construction of the Project or other corporate financings of ;.my type without the prior consent of the Agency. . (d) Upon conveyance of the Stage Property to the Agency pursuant to the exercise of its option to repurchase the Stage Property, this Agreement shall terminate as to the Stage conveyed as provided in Section 13,05. (e) This option to repurchase the Stage Property shall survive a termination of this Agreement by the Developer pursuant to Section 13.01, ARTICLE 9. INSURANCE. 9.01. Insurance Requirements Generally. (a) The Developer agrees to purchase and maintain in full force and effect such insurance policies with coverages generally applicable to projects in the State of Florida and Pinellas County similar in size and scope to the Project, or the Stage under construction if less than the entire Project. All insurance shall be obtained from financially responsible insurance companies either duly authorized under the laws of the State of Florida to do insurance business in the State of Florida (or subject to legal process in the State of Florida) and shall be issued and countersigned by duly authorized representatives of such companies for the State of Florida. Mediterranean Village Project Developmellt Agreemetlt . 36 . . . (b) The insurance coverages and limits shall be evidenced by properly executed certificates of insurance, No less than thirty (30) days written notice by registered or certified mail must be given by the Developer to the Agency of any cancellation, intent not to renew, or reduction in the policy coverages. (c) The Developer shall cause to be provided to the Agency certitied true copies of any insurance policy required by this Article 9 upon wrilten request of the Agency. (d) Nothing in this Agreement is intended or shall be deemed to be designed by the Agency as a recommended insurance program for the Developer, (e)(l) The Developer alone shall be responsible for the sufficiency of its own insurance program, The Agency will in no way be responsible to the Developer or any other pany for any inadequacy of the Developer's overall insurance program. (2) The Agency shall be responsible for the sufticiency of its insurance program. The Developer will in no way be responsible to the Agency or any other party for any inadequacy of the Agency's overall insurance program. 9,02. Insurance Exclusive of Indemnity, The insurance policies and coverages of the Developer contemplated by this Article 9 are exclusive of, and in addition to, any and all indemnity obligations of the Developer and the Agency under this Agreement. 9,03, No Waiver of Sovereign Immunity. Nothing in this Article 9 is intended or shall be deemed to constitute a waiver in whole or in part of any sovereign immunity applicable to and that may be asserted by the City or the Agency, or the Developer. ARTICLE 10. INDEIHNIFICA TION. 10,01. Indemnification by the Developer. (a) For consideration of $10,00 and other good and valuable consideration herein provided, the receipt of which is hereby acknowledged by the Developer, the Developer agrees to indemnify, defend and hold harmless, the Agency, its respective agents, officers, or employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of any act or omission of the Developer, its agents, employees or contractors arising out of, in connection with or by reason of, the performance of any and all services contemplated by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of any and all services contemplated by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the perfonnance of such services, Mediterralleall Vii/age Project Development Agreement 37 (b) The Developer's indemnity obligations under subsection (a) shall survive the . earlier of the Termination Date or the Expiration Date, but shall apply only to occurrences. acts, or omissions that arise on or before the earlier of the Termination Date or the Expiration Date, (c) The Developer's indemnity hereunder is in addition to and not limited by any insurance policy and is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, nor as a waiver of sovereign immunity for any party entitled to assert the defense of sovereign immunity. 10,02. Indemnification by the Agencv, (a) To the extent permitted by law, specifically including Section 768,28. Florida Statutes, and any insurance coverage available to the Agency, the Agency agrees to indemnify, defend and hold harmless, the Developer, its respective, officers, and employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of, any act or omission of the Agency, its respective agents or employees arising out of, in connection with or by reason of, the performance of any and all services contemplated by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of any and all services contemplated by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such services. (b) The Agency's indemnity obligations under this Section 10.02 shall survive the . earlier of the Termination Date or the Expiration Date, but shall only apply to occurrences, acts or omissions that arise on or before the earlier of the Tennination Date or the Expiration Date. The Agency's indemnity hereunder is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, but is in addition to and not limited by any insurance policy provided that said obligation shall not be greater than that permitted and shall be limited by the provisions of Section 768.28, Florida Statutes, or any successor statute thereto, 10.03. Environmental Indemnification by the Agency. (a) The Agency agrees to indemnify, defend, and hold harmless the Developer, its officers, directors, employees, agents, attorneys, contractors, lenders, successors, and assigns (including any successors or assigns to any interest of the Agency in the Site) (collectively, the Indemnitied Parties) from all actions, claims, administrative proceedings, damages (except for punitive damages), losses (excluding those resulting from any diminution of value or marketability of the Site) including those resulting from delay or increased costs of construction, (such as the cost of dewatering during the construction of the swimming pool), expenses, costs (including those for remediation), fines, judgments, or other liabilities, including reasonable attorneys' fees, which may at any time be filed against, imposed upon, incurred by, or asserted or awarded against any of the Indemnified Parties, arising from or in connection with Mediterra1lea1l Village Project Developme1lt Agreeme1lt . 38 . . . (i) the presence, discharge, or release of any Hazardous Substances on, in, under, or about the Site at any time before the conveyance of the Site to the Developer by the Agency; or (ii) the application of any Environmental Law to the acts or omissions of the City or the Agency or their respective officers, employees, agents, successors, or assigns in connection with the Site; or (iii) the City's failure to comply with any Environmental Law with respect to the Site. With respect to any contaminant identified by the URS reports identified above as having been detected on the Site, the Developer acknowledges receipt of the reports and represents that, to the best of the Developer's knowledge, the presence of the contaminants detected by URS will not delay or increase the cost of the construction or development planned by the Developer for the Site, With respect to the Stage III Property, the Developer acknowledges receipt of the Phase I and Phase II Environmental Site Assessment (ESA) Report, Town Pond Project, Downtown Clearwater, Dimmitt Chevrolet Properties, Properties C, D, and E, completed by International Technology Corporation dated March 4, 1999, and represents that the site conditions identified in the report will not delay or increase the cost of the construction or development planned by the Developer for the Site, (b) To exercise its indemnification rights under this section, an Indemnified' Party shall promptly notify the Agency of any such claim for which indemnity is sought. Any such notice shall be given in good faith, be reasonably specific, and shall set forth in reasonable detail, if available, the nature of the alleged loss, claim, damage, expense, or liability of the action or proceeding. An Indemnified Party shall advise the Agency of all facts material to the claim in the direct and actual knowledge of an Indemnified Party and, in the event of a third-party claim or action, shall afford the Agency the opportunity, at the Agency's sole cost, to defend against such claims, actions, or proceedings. In any such claim, the Indemnified Party shall have the right to retain its own counsel, and the fees and expenses of such counsel shall be at its own expense unless the Agency and the Indemnified Party agree in writing to the retention of such counsel at the Agency's expense, (c) An Indemnified Party shall have no right to settle or compromise any claims subject to such indemnification if the Agency notifies the Indemnified Party that the Agency intends to defend against the claim and undertakes the defense of it within fifteen days after receiving written notice of the claim and continues the defense throughout the pendency of the claim. If the Agency fails to undertake or continue the defense, then the Indemnified Party may settle or compromise any claim upon such tenns and conditions as the Indemnified Party deems necessary or appropriate, and, subject to the provisions of section 10.04 below, all amounts incurred by the Indemnified Party (including reasonable attorneys' fees) in connection with the Mediterranean Village Project Developrnenlltgreetneflt 39 settlement or compromise shall be paid by the Agency to the extent that such amounts are covered by the indemnification provided in this Agreement. . (d) The provisions of this section 10,03 shall survive the expiration or termination of this Agreement and shalI be in addition to any other remedy or indemnitication provided to the Developer under this Agreement. This indemnity by the Agency is not and shall not be interpreted as an insuring agreement between or among the parties but is in addition to and not limited by any insurance policy. This indemnity by the Agency shall not be affected. modified. extinguished, or impacted in any way by any provision of the State of Florida Browntields Redevelopment Act set forth in ~~376,77 through 376,86. F,S:. 10,04. Limitation of Indemnitication. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations of the Developer (as set forth in Section 10.01) and the Agency (as set forth in Section 10,02 and 10.03), the following shall apply: (a) the indemnifying party shall not be responsible for damages that could have been, but were not, mitigated by the indemnified party; (b) the indemnifying party shall not be responsible for that portion of any damages caused by the negligent or willful acts or omissions of the indenmitied party; and (c) there shall be no obligation to indemnify hereunder in the event that the . indemnified party (1) shall have effected a settlement of any claim without the prior written consent of the indemnifying party, or (2) shall not have subrogated the indemnifying party to the inllcmnified party's rights against any third party by an assignment to the indemnifying party of any cause or action against such third parry, ARTICLE 11. REPRESENTATIONS, WARRANTIES At'll) COVENANTS OF THE DEVELOPER. 11.01. Representations and Warranties. The Developer represents and warrants to the Agency that each of the following statements is currently true and accurate and agrees the Agency may rely upon each of the following statements: (a) The Developer is a Florida corporation duly organized and validly existing under the laws of the State of Florida, has all requisite power and authority to carry on its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party, is qualified to do business in the State of Florida, and has consented to service of process upon a designated agent for service of process in the State of Florida, Mediterra"ean Village Project Developmeflt Itgree11lefll . 40 (b) This Agreement and, to the extent such documents presently exist in form accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which Developer is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Developer, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof: (1) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (2) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, (3) contravenes or results in any breach of, default under or, other than as contemplated by this Agreement, results in the creation of any I ien or encumbrance upon any property of the Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the Developer's articles of incorporation, or, any other agreement or instrument to which the Developer is a party or by which the Developer may be bound, (c) This Agreement and, to the extent such documents presently exist in fonn accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Developer enforceable against the Developer in accordance with the terms thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (d) There are no pending or, to the knowledge of the Developer, threatened actions or proceedings before any court or administrative agency against the Developer, or against any controlling shareholder, officer, employee or agent of the Developer, which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Developer. (e) The Developer has filed or caused to be filed all federal, state, local and foreign tax returns, if any, which were required to be filed by the Developer" and has paid, or caused to be paid, all taxes shown to be due and payable on such returns or on any assessments levied against the Developer. (1) All financial information and other documentation, including that pertaining to the Project or the Developer, delivered by the Developer to the City and the Agency, was, on the date of delivery thereof, true and correct. (g) The principal place of business and principal executive offices of the Developer are in Clearwater, Florida, and, until the expiration or termination of this Agreement, the Developer will keep original or duplicate records concerning the Project (such as construction contracts, financing documents and corporate documents) and all contracts, licenses and similar MedilerraJ.eatl Village Project Developmellt Agreement 41 rights relating thereto at an office located in the corporate limits of the City of Clearwater, (h) As of the Closing Date, the Developer will have the tinancial capability to carry out its obligations and responsibilities in connection with the development of the Project as contemplated by this Agreement. including the purchase of the Site from the Agency as contemplated by Article 7, (i) The Developer (with the assistance of its Project Professionals) has the experience. expertise. and capability to develop, cause the construction. and complete the Project and, oversee and manage the design, planning. construction. and completion of the Project. and to acquire the Site as provided herein, (j) Developer hereby covenants. warrants, and represents to Agency that with respect to the remediation of soil contamination at the Site, Developer will pay the City on or before March 14th, 2002 the sum of $130,000 in return for the City's proceeding with a remedy that removes soil in accordance with the scope of work set forth in Exhibit L, to a greater extent and greater depth than would be required to meet alternative soil cleanup target levels based on the Focused Risk Assessment identified in paragraph 0)(1) in this section, above. in the expectation that the Department would either require no deed restriction pertaining to soil or would ultimately release any portion of the Site initially subjected to such a deed restriction after remediation. In addition, Developer shall be responsible for all costs of backfilling the site due to soil remediation and peat removal.:. 11.02. Covenants, The Developer covenants with the Agency that until the earlier of the Termination Date or the Expiration Date: (a) The Developer shall timely perform or cause to be performed all of the obligations contained herein which are the responsibility of the Developer to perform, (b) During each year this Agreement and the obligations of the Developer under this Agreement shall be in effect, the Developer shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals and shall cause to occur those events contemplated by this Agreement that are applicable to, and that are the responsibility of, the Developer. (c) The Developer shall assist and cooperate with the Agency to accomplish the development of the Project by the Developer in accordance with this Agreement, and the Project Plans and Specifications and will not violate any laws, ordinances, rules, regulations, orders, contracts or agreements that are or will be applicable thereto, including the Plan and the Act. (d) The Developer shall comply with all provisions of the financing documents for any Construction Financing. Mediterranean Village Project Development Agreement 42 . (e) Subsequent to the Effective Date, the Developer shall maintain its financial capability to develop. construct and complete the Project and shall promptly notify the Agency of any event, condition, occurrence, or change in its tinancial condition which materially adversely affects, or with the passage of time is likely to adversely affect, the Developej's tinancial capability to successfully and completely develop, construct and complete tht: Project as contemplated hereby, (0 The Developer shall promptly cause to be tiled when due all federal, state, local and foreign tax returns required to be tiled by it, and shall promptly pay when due any tax required thereby so as to avoid an uncured tax lien against the Site. (g) Subject to and except as permitted by Section 17.0 I, prior to the expiration or termination of this Agreement, the Developer shall maintain its existence, will not dissolve or substantially dissolve all of its assets and will not consolidate with or merge into another corporation, limited partnership, or other entity without the prior approval of the Agency, unless the Developer is the surviving entity or retains a controlling interest in the consolidated or merged corporation, in which case no consent by Agency shall be required, In any event, prior to the expiration or termination of this Agreement, the Developer, will promptly notify the Agency of any changes to the existence or forn1 of the corporation of Developer, . (h) The Developer shall not sell, lease, transfer or otherwise dispose of all or substantially all its assets without adequate consideration and will otherwise take no action which shall have the effect, singularly or in the aggregate, of rendering Developer unable to continue to observe and perform the covenants, agreements, and conditions hereof and the performance of all other obligations required by this Agreement, (i) Except for the removal of any structures, plants, items or other things from the Site after the Closing Date necessary for construction of the Project to commence and continue, the Developer shall not permit, commit, or suffer any waste or impairment of the Site prior to the earlier of the Termination Date or the Expiration Date. G) Provided all conditions precedent thereto have been satisfied or waived as provided herein, the Developer shall design, construct and complete each Stage of the Project such that it is substantially complete as provided in this Agreement no later than the Completion Date for that Stage. (k) Subject to the Agency's indemnification obligation set forth in ~ 10.03, to the extent that the BSRA between the City and the Department remains in effect and imposes continuing obligations after closing, Developer agrees to perform any actions necessary to ensure continued compliance with those obligations, including signing an access agreement in substantially the same form as in Exhibit C to the BSRA and complying with any deed restrictions or other conditions imposed by the Department on the Monitoring Only Plan or other order issued under the BSRA for the Site, . Medi/errntrean Village Project Development Agreement 43 . ARTICLE 12. REPRESENTATIONS, 'VARR.\1~TIES AND COVENANTS OF THE AGENCY. 12~1. Representations and Warranties. The Agency represents and warrants to the Developer that each of the follo\ving statements is currently true and accurate and agrees that the Developer may rely on each of the following statements: (a) The Agency is a validly existing body corporate and politic of the State of Florida, is the duly created community redevelopment agency of the City under Part III, Chapter 163, Florida Statutes (known as the Community Redevelopment Act of 1969), has all requisite corporate power and authority to carryon its business as now conducted and to perfoml its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party. (b) This Agreement and, to the extent such documents presently exist in form accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which the Agency is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Agency, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof (1) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (2) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Agency, (3) contravenes . or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Agency under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the Agency is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the Agency outstanding on the Effective Date. (c) This Agreement and, to the extent such documents presently exist in form accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which the Agency is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of the Agency enforceable against the Agency in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (d) There are no pending or threatened actions or proceedings before any court or administrative agency against the Agency, or against any officer of the Agency, which question the validity of any document contemplated hereunder, or which are likely in any case, or in the Mediterra1lea1l Village Project De~'e/op",ellt Agreeme1lt . 44 . . . aggregate. to materially adversely affect the consummation of the transactions contemplated hereunder or the tinancial condition of the Agency. (e) The lnterlocal Agreement is a valid and binding obligation of the Agency and the City. , 12,02. Covenants, The Agency covenants with the Developer that until the earlier of the Termination Date or the Expiration Date: (a) The Agency shall timely perform or cause to be perfom1ed all of the obligations contained herein which are the responsibility of the Agency to perform. (b) During each year that this Agreement and the obligations of the Agency under this Agreement shall be in effect. the Agency shall cause to be executed and to continue to be in effect those instruments, documents, certificates. permits, licenses and approvals, and shall cause to occur those events contemplated by this Agreement that are applicable to and are the responsibility of the Agency. (c) The Agency shall assist and cooperate with the Developer to accomplish the development of the Project in accordance with this Agreement and the Project Plans and Specifications, will carry out its duties and responsibilities contemplated by this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracL", or agreements that are or will be applicable thereto, and, to the extent permitted by law, the Agency will not enact or adopt or urge or encourage the adoption of any ordinances, resolutions, rules, regulations or orders or approve or enter into any contracts or agreements, including issuing any bonds, notes, or other forms of indebtedness, that will result in any provision of this Agreement to be in violation thereof, (d) The Agency shall not request or recommend any rezoning of the Site, or any part thereof, which will prevent or adversely affect the development of the Project. (e) The Agency shall maintain its financial capability to carry out its respo~sibilities as contemplated by this Agreement and shall notify the Developer of any event, condition, occurrence, or change in its financial condition which adversely affects, or with the passage of time is likely to adversely affect, the Agency's financial capability to carry out its responsibilities contemplated hereby, (t) So long as this Agreement is in effect and the Developer is not in default hereunder, the Agency shall maintain the Interlocal Agreement in effect and will not terminate it or do anything or not do anything that would be the basis for the City to terminate such agreement prior to its scheduled expiration. ARTICLE 13. DEFAULT; TERl\UNATION. Mediterral/ean Village Project De.'elopmetrtltgreemeTlt 45 13.01. Default bv Developer, . (a) Provided the Agency is not then in default of this Agreement under Section 13,02 hereof, there shall be an "event of default" by the Developer upon the occurrence of anyone or more of ttte following after the Effective Date: (1) The Developer shall fail to perfonn or comply with any material provision of this Agreement applicable to it within the time prescribed therefor; provided. however, that suspension of or delay in performance by the Developer during any period in which the Agency is in default of this Agreement as provided in Section 13,02 hereof will not constitute an event of default by the Developer under this subsection (a); or (2) The Developer shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or (3) Within sixty (60) days after the commencement of any proceeding by or against the Developer seeking any reorganization, arrangement, composition, readjustment, liquidation, . dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed or otherwise terminated, or if, within sixty (60) days after the appointment without the consent or acquiescence of the Developer of any trustee, receiver or liquidator of any of such entities or of any material part of any of such entity's properties, such appointment shall not have been vacated. (b)(l) If an event of default by the Developer described in subsection (a) above shall occur, the Agency shall provide written notice thereof to the Developer, and, if such event of default shall not be cured by the Developer within thirty (30) days after receipt of the written notice from the Agency specifying in reasonable detail the event of default by the Developer, or if such event of default is of such nature that it cannot be completely cured within such time period, then if the Agency is not then in default of this Agreement and the Developer shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary then, in addition to any remedy available under Section 13.03, the Agency may terminate this Agreement or pursue any and all legal or equitable remedies to which the Agency is entitled, provided, however, if the Developer shall fail to cure such event of default within said thirty (30) day or longer period or ceases to proceed diligently to timely cure such event of default, then the Agency may proceed to enforce other available remedies without providing any Mediterranean Village Project Del'elopmmt Agreemellt . 46 . . . additional notice to the Developer. (2) Any attempt by the Agency to pursue any of the above referenced remedies will not be deemed an exclusive election of remedy or waiver of the Agency's right to pursue any other remedy to which either may be entitled. (3) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or Agency's ability to perform by such deadline or the expiration of such period. (c) Subject to the rights of the Construction Lender, any Contractor, creditors of the Developer, and others claiming a legal or equitable interest in the Project, or a portion thereof, if the Agency elects under Section 6.06 to cure a default under subsection (a) by the Developer and complete the construction of the Project, all plans and specifications, working drawings, construction contracts, contract documents, Building Permits, Permits, management agreements, and financial commitments (all only to the extent assignable) with respect to the Project shall, if such default has not been previously cured, on the day following receipt by the Developer of notice from the Agency of its election to cure under Section 6,06, be deemed then assigned to the Agency making said election, without necessity of any other action being taken or not taken by any party hereto. The Developer shall transfer and deliver to the Agency upon making said election, all assignable Project Plans and Specifications, working drawings, construction contracts, contract documents, financial commitments, management agreements, and all Permits. (d) In the event of a termination of this Agreement pursuant to this Section 13.01, the Agency shall not be obligated to make or to continue to make any payments of any Impact Fees or using any increment revenues attributed to the Project for Infrastructure Improvements, 13,02. Default bv the Agency. (a) Provided the Developer is not then in default under Section 13.01, there shall be an "event of default" by the Agency under this Agreement in the event the Agency shall fail to perform or comply with any material provision of this Agreement applicable to it; provided, however, that suspension of or delay in performance by the Agency during any period in which the Developer is in default of this Agreement as provided in Section 13.01 hereof will not constitute an event of default by the Agency under this subsection (a). (b)(l) If an event of default by the Agency described in subsection (a) shall occur, the Developer shall provide written notice thereof to the Agency, and, after expiration of the curative period described in paragraph (2) below, may terminate this Agreement, institute an action to compel specitic perfonnance of the terms hereof by the Agency or pursue any and all legal or equitable remedies to which the Developer is entitled; provided, however, if the event of default by the Agency occurs on or prior to the Closing Date, any monetary recovery by the Developer in any such action shall not include any lost profits or consequential damages and Mediterranean Village Project Developmelll Agreemellt 47 (2) The Developer may not terminate this Agreement or institute an action described in paragraph (1) above if the Agency cures such event of default within thirty (30) days after receipt by the Agency of written notice from the Developer specifying in reasonable detail the event of default by the Agency, or if any such event of default is of such nature that it cannot be completely cured within such period, then within such reasonably longer period of time as may be necessary to cure such default, provided however. if the Agency is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding an aggregate of thirty (30) days without any approval or consent of the Developer being required, but such approval wiII be required (and shaII be given or withheld in Developer's sole discretion) if the curative period is to be extended beyond sixty (30) days after the notice of default has been given by the Developer to the Agency if the Agency has commenced to cure such default within such thirty (30) day period and is diligently prosecuting such curative action to completion, The Agency shall within said thirty (30) day period or such longer period promptly, diligently and in good faith proceed to cure such event of default after receipt of the notice from the Developer and shall succeed in curing such event of default within said period of time, provided, however, if the Agency shall fail to cure such event of default within said thirty (30) day or longer period or ceases to proceed diligently to timely cure such event of default, then the Developer may proceed with its available remedies without providing any additional notice to the Agency, shaII be limited to bona fide third-party out-of-pocket costs and expenses. including reasonable . attorneys' fees, incurred by the Developer in connection with the transactions contemplated hereby on and after the Effective Date, (3) Any attempt by the Developer to pursue any of the remedies referred to in . paragraphs (1) and (2) above will not be deemed an exclusive election of remedy or waiver of the Developer's right to pursue any other remedy to which it might be entitled. (4) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or Agency's ability to perform by such deadline or the expiration of such period. 13.03. Obligations. Rights and Remedies Cumulative. Unless specifically stated herein to the contrary, the specified rights and remedies to which either the Agency or the Developer are entitled under this Agreement are not exclusive and are intended to be in addition to any other remedies or means of redress to which the Agency or the Developer may lawfully be entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in, the performance of its obligations by the Developer, while the Agency shall at such time be in default of their obligations hereunder shall not be deemed to be an "event of default." The suspension of, or delay in, the performance of the obligations by the Agency while the Developer shall at such time be in default of its obligations hereunder shall not be deemed to be an "event of default" by the Agency. 13.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of Mediterranean Village Project De~'el()pmelll Agreement . 48 . . . the Agency or the Developer to promptly or continually insist upon strict performance of any term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other agreement, instrument or document of whatever form or nature contemplated hereby shall not be deemed a waiver of any right or remedy that the Agency or the Developer may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or provision, 13,05, Termination, (a) The Developer and the Agency acknowledge and agree that as of the Effective Date certain matters mutually agreed by the parties hereto are essential to the successful development of the Project have not been satisfied or are subject to certain conditions, legal requirements or approvals beyond the control of any of the parties hereto or which cannot be definitely resolved under this Agreement, In recognition of these events or conditions, the parties hereto mutually agree that, provided the appropriate or responsible party therefor diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or condition to occur or be satisfied, the failure of the events or conditions listed in subsection (b) below to occur or be satisfied shall not constitute an event of default by any party under this Article 13, but may be the basis for a tem1ination of this Agreement as provided in this Section 13.05. (b) In addition to any other rights of termination provided elsewhere in this Agreement, this Agreement may be terminated prior to the Closing Date as provided in subsection (c) after the occurrence of any of the following events or conditions: (1) All of the Site is taken by the exercise of the power of eminent domain by a goverrunental authority (except the City or the Agency) or a person entitled to exercise such power or benefiting therefrom, or such part of the Site is taken by the power of eminent domain so as to render the Project commercially unfeasible or unusable for its intended uses as contemplated by this Agreement; (2) The appropriate governmental authority (but not including the City in exercise of its governmental and regulatory authority and responsibility), upon petition by the Developer, unduly delays or denies or fails to issue the Permits, issue the Building Permits, or approve any other land use approval necessary to commence construction of the Project on the Site; (3) The City has denied or failed to approve Infrastructure Improvements Plans and Specifications or has improperly denied or failed to issue the Building Permit. (4) A moratorium on new construction is imposed by a governmental authority within the City or Pinellas County so as to prevent construction of the Project to commence; (5) The City or other appropriate governmental authority has issued a concurrency Mediterra"ean Village Project Developme"t Agreeme"t 49 compliance certificate or a reservation of services capacity as described in Section 3.05 and such . certificate or reservation has been properly revoked, repealed, superseded, or otherwise no longer of any effect or the Developer is unable to rely upon such certiticate or reservation, if such a certificate or reservation is required for development of the Project on the Site, and the Developer cannot obtain a new or replacement certificate or reservation for the Project. (6) The Site is not conveyed to the Developer by the Agency due to a condition to closing described in Section 7.10 not being timely satisfied or waived, (7) The City fails to approve any zoning, site plan or building plan before ro.'lay 30, 2002. (8) The City approves an amendment to the Plan, which IS inconsistent with the Project being located on the Site. (c) Upon the occurrence of an event described in subsection (b), then the Developer or the Agency may upon determining that such event cannot reasonably be expected to change in the foreseeable future so as to allow development of the Project, may elect to terminate this Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence of such event or the determination of inability to cause a condition precedent to occur or be satisfied, stating its election to terminate this Agreement as a result thereof, in which case this Agreement shall then terminate, provided, however, only the Developer may elect to terminate this Agreement upon the occurrence of an event described in paragraph (3). (7), and (8). . (d) In the event of a termination pursuant to Section I3.0S(c), neither the Developer nor the Agency shall be obligated or liable one to the other in any way, financially or otherwise, for any claim or matter arising from or as a result of this Agreement or any actions taken by the Developer and the Agency, or any of them, hereunder or contemplated hereby, and each party shall be responsible for its own costs. (e) Notwithstanding anything to the contrary contained herein. in the event that any party shall have, but shall not exercise, the right hereunder to terminate this Agreement because of the non-satisfaction of any condition specified herein, and such condition is subsequently satisfied, then the non-satisfaction of such condition shall no longer be the basis for termination of this Agreement. 13.06. Termination Certificate. (a) In the event of a termination of this Agreement for any reason prior to the Expiration Date,each of the parties hereto do covenant and agree with each other to promptly execute a certificate prepared by the party electing to terminate this Agreement, which certificate shall expressly state that this Agreement has been tenninated in accordance with its tenns, is no longer of any force and effect except for those provisions hereof which expressly survive Mediterranean Village Project Development Agreement . 50 . . . termination, that the rights, duties and obligations of the parties hereto have been tenninated and released (subject to those surviving provisions hereof) and that the Site is no longer subject to any restrictions, limitations or encumbrances imposed by this Agreement. (b) The certificate described in subsection (a) shall be prepared in a form suitable for recording and promptly after execution by all of the parties hereto shall be recorded in the public records of Pinellas County, Florida, The cost of recording the temlination certificate shaH be paid by the tenninating party. ARTICLE 14. UNAVOIDABLE DELAY. 14,01, Unavoidable Delav. (a) Any delay in performance of or inability to perform any obligation under this Agreement (other than an obligation to pay money) due to any event or condition described in paragraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in this Section 14.01. (b) "Unavoidable Delay" means any of the following events or conditions or any combination thereof: acts of God, acts of the public enemy, riot, insurrection, war, pestilence, archaeological excavations required by law, unavailability of materials after timely ordering of same, epidemics, quarantine restrictions, freight embargoes, fire, lightning, hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement weather (as indicated by the records of the local weather bureau for a five-year period preceding the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73 and 74, Florida Statutes, restoration in connection with any of the foregoing or any other cause beyond the reasonable control of the party perfonning the obligation in question, including, without limitation, such causes as may arise from the act of the other party to this Agreement, or acts of any governmental authority (except that acts of the Agency shall not constitute an Unavoidable Delay with respect to perfonnance by the Agency). (c) An application by any party hereto (referred to in this paragraph (c) and in paragraph (d) as the "Applicant") for an extension of time pursuant to subsection (a) must be in writing, must set forth in detail the reasons and causes of delay, and must be tiled with the other party to this Agreement within seven (7) days following the occurrence of the event or condition causing the Unavoidable Delay or seven (7) days following the Applicant becoming aware (or with the exercise of reasonable diligence should have become aware) of such occurrence. (d) The Applicant shall be entitled to an extension of time for an Unavoidable Delay only for the number of days of delay due solely to the occurrence of the event or condition causing such Unavoidable Delay and only to the extent that any such occurrence actually delays that party from proceeding with its rights, duties and obligations under this Agreement affected by such occurrence. Mediterralleall Village Project Del'elopmellt Agreeme"t 51 ARTICLE 15. RESTRICTIONS ON USE. . 15,01. Restrictions on Use No use of the Project or the Site other than as lOO-unit residential townhouse development with swimming pool and community hall as described in the Proposal, this Agreement and the Plan shall be permitted unless and until the Developer or the person, if other than the Developer, intending to so use the Project or Site, shall file with the Agency a request for a release from the any part of or all of the restriction imposed by this Section 15,01. The Agency shall promptly consider such request and either deny the request, approve the request as filed, or approve the request subject to such terms, conditions and limitations as the Agency may reasonably require, Unless specifically requested and approved, any release of the restriction imposed by this Section 15,01 shall not by its own terms without the consent of the Agency release the Developer from any obligations or restrictions imposed by this Agreement or any agreement, instrument or document contemplated hereby, If any release of the restriction imposed by this Section 15.01 is approved by the Agency, an instrument evidencing such release and in such form that it may be recorded, shall be recorded in the public records of Pine lias County, Florida, and the cost of such recording shall be paid by the Developer. Nothing in this Section 15,01 is intended to affect or override any law, ordinance, regulation, or other legal restriction not set forth in this Agreement, ARTICLE 16. FIRE OR OTHER CASUALTY; CONDEl\-INATION. 16.01. Loss or Damage to Proiect. If economically feasible, the Developer covenants and agrees to diligently commence and complete the reconstruction or repair of any loss or damage caused by tire or other casualty or by eminent domain (provided the City or the Agency is not the condemning authority) to each and every part of the Project then owned by Developer to substantially the same as existed prior to the occurrence of such loss or damage, Any reconstruction or repair of any loss or damage to the Project shall be to the standards, design, plans and specifications of the original construction unless any change therefrom is approved by the Agency. . 16.02. Partial Loss or Damage to Proiect. Any loss or damage by tire or other casualty or exercise of eminent domain to the Project or Site, or any portion thereof, which does not render the Project or Site unusable for the use contemplated by this Agreement, shall not operate to terminate this Agreement or to relieve or discharge the Developer from the timely performance and fulfillment of the Developer's obligations pursuant to this Agreement, subject to an extension of time for an Unavoidable Delay. 16.03. Notice of Loss or Damage to Proiect. The Developer shall promptly give the Agency written notice of any significant damage or destruction to the Project stating the date on which such damage or destruction occurred, the expectations of the Developer as to the effect of such damage or destruction on the use of the Project, and the proposed schedule, if any, for Mediterranean Village Project De~'elopmerlt Agreement . 52 , . . . repair or reconstruction of the Project. If the Developer determines the Project cannot be repaired or restored in an economically justitiable or other manner, then the Developer shall so notify the Agency and state reasons supporting its determination. 16.04. Subiect to Financing. The Developer's ohligations under this Article 16 are subject to the terms and conditions of the Construction Financing or any other mortgage financing in effect at the time any such obligations hereunder would otherwise be applicahle. ARTICLE 17. i\nSCELLAl~EOUS. 17.01. Asshmments, (a)(I) Prior to the earlier of the Termination Date or the Expiration Date, the Developer may sell, convey. assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Project. or any part thereof to any person with the prior written consent of the Agency. provided that such party (hereinafter referred to as the "assignee"), to the extent of the sale. conveyance, assignment or other disposition by the Developer to the assignee, shall be bound by the tenns of this Agreement the same as the Developer for such part of the Project as is subject to such sale, conveyance. assignment or other disposition, (2) If the assignee of Developer's right, title, interest and obligations in and to the Project, or any part thereof, assumes all of Developer's obligations hereunder for the Project, or that part subject to such sale, conveyance, assignment or other disposition. then the Developer shall be released from all such obligations hereunder which have been so assumed by the assignee, and the Agency agrees to execute an instrument evidencing such release, which shall be in recordable form. (b) An assignment of the Project, or any part thereof, by the Developer to any corporation, limited partnership, general partnership. or joint venture, in which the Developer is the or a general partner or has either the controlling interest or through a joint venture or other arrangement shares equal management rights with a financial institution and maintains such controlling interest or equal management rights for the term of this Agreement shall not be deemed an assignment or transfer subject to any restriction on or approvals of assignments or transfers imposed by this Section 17.01, provided, however, that notice of such assignment shall be given by the Developer to the Agency no less than thirty (30) days prior to such assignment being effective and the assignee shall be bound by the terms of this Agreement to the same extent as would the Developer in the absence of such assignment. If the Developer shall at any time withdraw or be replaced as a general partner or no longer have the controlling interest or management rights as described in this subsection, then that event shall constitute an assignment of the Developer's right. title. interest or obligations under this Agreement for purposes of this Section 17.01 and the prior approval of the Agency shall be obtained before such an event shall be effective. Mediterranean Village Project Development Agreement 53 , 17,02. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the Agency, and its successors and assigns, and the Developer, and its successors and . assigns, except as may otherwise be specificaIly provided herein. 17.03. Notices, (a) AIl notices, demands, requests for approvals or other communications given by either pany to another shaIl be in writing, and shaIl be sent by registered or certified mail, postage prepaid, return receipt requested or by overnight courier service, or by hand delivery to the office for each party indicated below and addressed as foIlows: To the Developer: To the Agency: Clearwater, FL 33761 Attention: Community Redevelopment Agency of the City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attention: THE BALK COMPANY, INC. with copies to: with copies to: Clearwater, Florida 337_ City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attention: City Manager . (b) Notices given by courier service or by hand delivery shall be effective upon delivery and notices given by mail shall be effective on the third (3rd) business day after mailing. Refusal by any person to accept delivery of any notice delivered to the office at the address indicated above (or as it may be changed) shaIl be deemed to have been an effective delivery as provided in this Section 17.03. The addresses to which notices are to be sent may be changed from time to time by written notice delivered to the other parties and such notices shall be effective upon receipt. Until notice of change of address is received as to any particular party hereto, all other parties may rely upon the last address given. 17.04. Severability. If any term, provision or condition contained this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision or condition to persons or circumstances other than those in respect of which it is invalid or unenforceable, shall not be affected thereby, and each term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 17.05. Applicable Law and Construction. The laws of the State of Florida shall govern Mediterranean Vil14ge Project Development Agreement . 54 . . . the validity, perfom1ance and enforcement of this Agreement. This Agreement has been negotiated by the Agency and the Developer, and the Agreement, including, without limitation, the Exhibits, shall not be deemed to have been prepared by the Agency or the Developer, but by all equally. 17,06. Venue: Submission to Jurisdiction, (a) For purposes of any suit, action, or other proceeding arising out of or relating to this Agreement, the parties hereto do acknowledge, consent, and agree that venue thereof is Pinellas County, Florida. (b) Each party to this Agreement hereby submits to the jurisdiction of the State of Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States District Court for the Middle District of Florida, for the purposes of any suit, action, or other proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of a motion as a defense or otherwise that such action is brought in an inconvenient forum or that the venue of such action is improper or that the subject matter thereof may not be enforced in or by such courts. (c) If at any time during the term of this Agreement the Developer is not a resident of the State of Florida or has no office, employee, agency or general partner thereof available for service of process as a resident of the State of Florida, or if any permitted assignee thereof shall be a foreign corporation, partnership or other entity or shall have no officer, employee, agent, or general partner available for service of process in the State of Florida, the Developer hereby designates the Secretary of State, State of Florida, its agent for the service of process in any court action between it and the Agency arising out of or relating to this Agreement and such service shall be made as provided by the laws of the State of Florida for service upon a non-resident; provided, however, that at the time of service on the Florida Secretary of State, a copy of such service shall be delivered to the Developer at the address for notices as provided in Section 17.03, 17.07. Agreement Not a Chapter 86-191. Laws of Florida, Development Agreement. The Developer and the Agency acknowledge, agree and represent that this Agreement, including, without limitation, any of the Exhibits, is not a development agreement as described in Sections 19-31, Chapter 86-191, Laws of Florida, codified as Sections 163.3220-163,3243, Florida Statutes. 17.08. Estoppel Certificates. The Developer and the Agency shall at any time and from time to time, upon not less than ten (10) days prior notice by another party hereto, execute, acknowledge and deliver to the other parties a statement in recordable form certifying that this Agreement has not been modified and is in full force and effect (or if there have been modifications that the said Agreement as modified is in full force and effect and setting forth a notation of such modifications), and that to the knowledge of such party, neither it nor any other Medi/erral,eall Village Project Developmellt Agreemelll 55 party is then in default hereof (or if another party is then in default hereof, stating the nature and details of such default), it being intended that any such statement delivered pursuant to this . Section 17,08 may be relied upon by any prospective purchaser, mortgagee, successor, assignee of any mortgage or assignee of the respective interest in the Project, if any, of any party made in accordance with the provisions of this Agreement. 17,09, Complete Agreement; Amendments. (a) This Agreement, and all the temlS and provisions contained herein, including without limitation the Exhibits hereto, constitute the full and complete agreement between the parties hereto to the date hereof, and supersedes and controls over any and all prior agreements, understandings, representations, correspondence and statements whether written or oral, including the RFP and the Proposal. (b) Any provisions of this Agreement shall be read and applied in para materia with all other provisions hereof, (c) This Agreement cannot be changed or revised except by written amendment signed by all parties hereto, 17,10. Captions. The article and section headings and captions of this Agreement and the table of contents preceding this Agreement are for convenience and reference only and in no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way affect this Agreement or construe any article, section, subsection, paragraph or provision . hereof. 17 .11. Holidays. It is hereby agreed and declared that whenever a notice or performance under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal holiday observed in the City, it shall be postponed to the next following business day, 17.12. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not physically attached hereto shall be treated as if they are part of this Agreement. 17.13. No Brokers, The Agency and the Developer hereby represent, agree and acknowledge that no real estate broker or other person is entitled to claim or to be paid a commission as a result of the execution and delivery of this Agreement, including any of the Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any or all of the Site, specifically including the conveyance of the Site by the Agency to the Developer. 17.14. Not an Agent. During the term of this Agreement, the Developer hereunder shall not be an agent of the City or the Agency, with respect to any and all services to be performed Mediterra"ea" Village Project Developme1lt Agreeme"t . 56 , . . . by the Developer (and any of its agents, assigns, or successors) with respect to the Project, and the Agency is not an agent of the Developer (and any of its agents, assigns. or successors). 17,15. Memorandum of Development Agreement. The Agency and the Developer agree to execute, in recordable form, on the Effective Date, the short fonn "Memorandum of Agreement for Development and Disposition of Property," the fom1 of which is attached hereto as Exhibit "I g," and agree, authorize and hereby direct such Memorandum to be recorded in the public records of Pinellas County, Florida, as soon as possible after execution thereof. The Agency shall pay the cost of such recording. 17.16. Public Purpose, The parties acknowledge and agree that this Agreement satisfies. fulfills and is pursuant to and for a public purpose and municipal purpose and is in the public interest, and is a proper exercise of the Agency's power and authority under the Act. 17,17. No General Obligation, In no event shall any obligation of the Agency under this Agreement be or constitute a general obligation or indebtedness of the City or the Agency, a pledge of the ad valorem taxing power of the City or the Agency or a general obligation or indebtedness of the City or the Agency within the meaning of the Constinuion of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds. Neither the Developer nor any other parry under or beneficiary of this Agreement shall ever have the right to compel the exercise of the ad valorem taxing power of the City, the Agency or any other governmental entity or taxation in any form on any real or personal property to pay the City's or the Agency's obligations or undertakings hereunder, 17.18, Technical Amendments: Survey Corrections, In the event that due to minor inaccuracies contained herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to changes resulting from technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances which do not change the substance of this Agreement may be made and incorporated herein. The Chairman of the Agency is authorized to approve such technical amendments on behalf of the Agency, respectively, and is authorized to execute any required instruments, to make and incorporate such amendment to this Agreement or any Exhibit attached hereto or any other agreement contemplated hereby. 17.19. Term: Expiration: Certificate, (a) If not earlier terminated as provided in Section 13.05, the tenn of this Agreement shall expire and this Agreement shall no longer be of any force and effect (except for those matters which specifically survive such expiration) on the tenth (10th) anniversary of the Effective Date. Mediterral/eal/ Village Project Developmel/t .4greemel/t 57 , (b) The Agreement Expiration Certificate shall be in such form as will enable it to be recorded in the public records of Pinellas County, Florida. Following execution by all of the . parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer in the public records of Pinellas County, Florida, and the Developer shall pay the cost of such recording, 17.20. Effective Date, Following execution of this Agreement (and such of the Exhibits as are contemplated to be executed simultaneously with this Agreement) by the authorized officers of the Agency and by authorized representatives of the Developer following approval hereof by the Agency and the Developer and following the approval by the City and the Agency, respectively of the lnterlocal Agreement, this Agreement (and any executed Exhibits) shall be in full force and effect in accordance with its terms and upon the recording of the Memorandum of Development Agreement as contemplated by Section 17.15 hereof. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the day of , 2002. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA Brian J, Aungst, Chairperson Approved as to fonn: ATTEST: Pamela K. Akin, City Attorney Cynthia E. Goudeau, City Clerk THE BALK COMPANY, INC., By: , President ATTEST: By: Secretary (SEAL) Mediterranean Village Project Developmtnt Agreement 58 . . .. 'P . . . STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this _ day of , 2002, by BRIAN J, AUNGST and CYNTHIA E. GOUDEAU, Chairperson and City Clerk, respectively, of Community Redevelopment Agency of the City of Clearwater, Florida, They are personally known to me or have produced valid Florida drivers I licenses as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this _ day of 2002, by and , and , respectively of THE BALK COMPANY, INC. They are personally known to me or have produced a valid driver's license as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: Mediterranean Village Project Development Agreement 59 . Exhibit "A" Exhibit" A-I" Exhibit "A-2" Exhibit" A-3" Exhibit "B" Exhibit "C" Exhibit "D" Exhibit "E" . Exhibit "F" Exhibit "G" Exhibit "H" Exhibit "I" Exhibit "J" Exhibit "K" Exhibit "L" Exhibit "M" . Development Ag:reement Exhibit List Project/Property Description Property Description Stage I Property Description Stage II Property Description Stage III Site Plan Special Warranty Deed (Form) Infrastructure Improvement Schedule License for Temporary Facility Infrastructure Improvement Completion Certificate (Form) Agreement Expiration Certificate Agreement Termination Certificate Memorandum of Agreement for Development and Disposition of Property List of environmental documents prepared by Danes & Moore/URS Property potentially subject to arsenic Restrictive covenant to meet alternative SCTL of 1.4 mg/kg for arsenic URS Scope of Work License and Escrow Agreement . . . EXHIBIT A Legal Descriptions . and Sketches for parcels: lA, lB, 2 & 3 . .. Parcel L~ . Begin at the Southeast corner of Lot 14, Block 1, Magnolia Park, as recorded in Plat Book 1, Page 70 of the Public Records of Hills borough County, Florida, of which Pinellas County was once a part; thence NOOo 17' 56"W along the East line of said Lot 14 and Lot 3, Block I, of said Magnolia Park, 235,00 feet to a point on the apparent South right of way line of Cleveland Street as described by the survey map prepared for the City of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/01; thence N89057' 12"E, along said apparent South right of way line of Cleveland Street 270.00 feet to a intersection of the East line of Lot 8, Block 1, of said Magnolia Park and the West right of way line of Prospect Avenue; thence SOool7'56"E along said \-Vest right of way line of Prospect Avenue 97.87 feet; thence leaving said West right of way line East, 14.49 feet; thence South, 30,00 feet; thence West, 14.33 feet to a point on said West right of way line of Prospect Avenue; thence SOOI7'56"E, along said West right of way line of Prospect Avenue 107,14 feet to the Southwest corner of Lot 9, Block 1, of said Magnolia Park; thence S89057' 12"W, along the North right of way of Park Street, 54.00 feet to the Southeast corner of Lot 10, Block 1 of said Magnolia Park; thence NOOo 17' 56"W, along the East line of said Lot 10, 132,50 feet to the Northeast corner of said Lot 10, thence S89057' 12"W, 202.00 feet; thence SOool7'56"E, 132,50 feet to the North right of way line of Park Street; thence S89057' 12"W along said North right of way line of said Park Street 14.00 feet to the point of beginning. (Containing 37102.27 S.F., M.O,L.) . S:\Projects\Downtown Pond - #98-0116-EN\legals for plat and lease,doc I- W W ~ VlO 010 Z. <0:; -JI/) ~ ~ U ~ rr o z L .... ... b ... -L - 31\ V l03dSO~d SOUT)f JO.oo' 2 ~ o -J '.-'.-..-,.-.,- o ,... :: 6 -J "-'0--.. . --'. C'I .. I- o ... I '.--...---.. " --" ::? l- S .., I- o ../ ;! I- o -I "--'0--..--.. "-"--'..--... C'I I- o -J :! =. ~ Sf ."u ~ .:~; S Q: ! " co ;b .._,._.._.c).~ a: " --. " --" r- 1 , ~ 3t . ~b ,,~ lZ;;; 31 .-- .-- > w 0::: I I- t1 ~ (f) ~ a:: < Q. >; Cl) > ~ :J (J) o g. (J) <( (/) /I .-- .- -1~".-- w .. (J..v rvCl)_ .....~o <(00 a..Z(I) . . Parcel 1 B . Begin at the Southeast corner of Lot 8, Block 2, Magnolia Park as recorded in Plat Book 1, Page 70, of the Public Records of Hillsborough County, Florida, of which Pinellas County was once a part, thence N89057' 12"E along the South line of said Lot 9 and Lot 1 0, Block 2, of said Magnolia Park, 101.90 feet, to the Southeast corner of said Lot 10; thence SOOo 17' S6"E, along the East line of Lot 11, Block 2 of said Magnolia Park, 13:!,50 feet to the southeast corner of said Lot 11; thence continue SOool7'56"E, 8.16 feet; thence SS9042'04"W, 21.42 feet; thence SOoo02'48"E, 22,38 feet; thence S8905TI2"W, 46,67 feet; thence SOoo02'48"E, 29.37 feet to the South right of way line of Park Street; thence S89057' 12"W, along the said South right of way line of Park Street, 63,71 feet; thence N23029'22"\V, 34.41 feet; thence S66030'38"W, 14,94 feet; thence N23029'22"W, 11.89 feet; thence NS3053 'OO"W. IS8,67 feet, thence N0600TOO"E, 3,23 feet to the North right of way line of said Park Street; thence S89057' 12"W, along said North right of way line of Park Street, 5,08 feet; thence SSI01S'37"\V, 157.33 feet; thence NOso41 '23"W, 46.67 feet; thence N81018'37"E, 8,85 feet to the East right of way line of Prospect Avenue;' thence NOOo 17' 56"W, along the said East right of line of Prospect Avenue, 20.22 feet; thence S8I018'37"W, 1.05 feet; thence N08041 '23"W, 46,67 feet; thence NSloI8'3T'E, 7.93 feet to the said East right of way line of Prospect Avenue; thence NOooIT56"W, along said East right of way line of Prospect Avenue, 143,79 feet to a point on the apparent South right of way line of Cleveland Street as described by the survey map, prepared for the City of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/0 I; thence N89057' 12"E, 40S.00 feet along said apparent South right of way line of Cleveland Street to the West line of said Lot 9; thence SOOo IT 56"E, along the West line of said Lot 9, 102,50 feet, to the point of beginning, (containing 120739.82 S.F" M,Q.L.) . S:\ENGIN\Projects\Downtown Pond - #98-0 116-EN\legals for plat and lease,doc I I t . l- I '-"-. '-" cr !? co .. ~ f I 0 9 ...J., ~ ~i Z ,~.~.- aj ,~ c:i ~ .. Q.' l'l- ... 0 ... I I >.. (L) > L.. I :J I CI) 0 ....... . 0 Co .~ to OJ en 1/ '<'- .- I- ..c~ tI -/1-'<'- f!E W U .. Q; U) a:(L)- :.:: <(oB ~ Cl..Z(/) I- w &..J I! U)o 010 z' <Il; ....JU) ~ I I d I I . Pa reel 2 . . Begin at the NOl1hwest corner of Lot 5, Block 3, ~vlagnolia Park, as recorded in Plat Book I, Page 70, of the Public Records of Hills borough County, Florida, of which Pinellas County was formerly a part, also being a point on the South right of way line of Park Street; thence NS9057' 12"E, along said South right of way line of Park Street, 33.58 feet; thence leaving said South right of way line of Park Street, NOoo02'4S"W, 29,37 feet; thence N89057' 12"E, 46,67 feet; thence SOoo02'4S"E, 29.37 feet, to a point of intersection of the East right of way line ofE\ving Avenue and said South right of way line of Park Street; thence SOool7'56"E, along said East right of way line of Ewing Avenue, 65,30 feet to a point on the centerline of a vacated allcy as recorded in a.R. Book 6228, Page 1131, of said Public Records; thence NS9057' 12"E, along said centerline, 139.40 feet; thence SOoo16' l7"E, 199.70 fect, to the NOl1h right of way line of Pierce Street; thence S89057' 12"W, along the said NOl1h right of way line of Pierce Street, 179.76 feet to the intersection of the West right of way line of Ewing Avenue, thence NOoo20'23"W, along the said East right of way line of Ewing Avenue, 36.45 feet; thence S84010'05"W, 57.03 feet, thence N05049' 55"W, 126.00 feet; thence N23029'22"W, 8,83 feet, thence S66030'3S"W, 4.40 feet; thence N23029'22"W, 126.00 feet; thence N66030'38"E, 46.67 feet; thence S23 o29'22"E, 34.41 feet to a point on the said South right of way line of Park Street; thence NS9057' 12"W along said South right of way line of Park Street, 30.12 feet to the point of beginning. (containing 59327,88 S,F., M,O.L.) . S:\ENGTN\Projects\Downtown Pond - #98-0 I 16-EN\legals for plat and lease,doc . :e I I ~I I I >- 9 >- 0 . 5 ...J . :r I !!! I I ~ I I ~ >- I- 0 ~ 0 -' .. .. ...J N I- N, >- ., , '" g I I II i~l " I 4- ~. ...' ., o .~. ~f' : i ~ I I 3 I I f- I ~ w f Z :~: Q w '" e: ! -I- III I :.: I Q: 0( "'- I 11. . ... ~d" I s'":g ~ --' :t cb as I :ra: ! /.~ N. ~ 'i:: , ~ I 'l'l .'" Ii - I- W W ~ / w u ~ Ii: . I- 0' .... ;::.:, Q) > L.. :J (J) o I "- I I I I I ~ ... o ... ~ 9 I I I I I t-.. / I -"-"-1 I i : ~R., 9 G.ft 1;8 J I "-. '-I I !!! ... o ... .. .... ., I- f tJ,..: ~ ~ VI - w ! :i~ w Ii: lil / I ,.t-"-"t-.. I f-. ItJ ~ I/) !lC Q: ~ N '-"",,-- '--. 'W'"" " '...... .... _""'...."'~"'.,_....... ..."., . Parcel 3 Begin at the Northwest corner of Lot 9, Tack and Warren Subdivision, as recorded in Plat Book 21, Page 48, of the Public Records of Pine lias County, Florida, also being a point on the South right of way line of Park Street; thence N89057' 12"E along said South right of way line, 160,00 feet; to the Northeast corner of Lot 11, of said Tack and Warren Subdivision, also being a point on the West right of way line of Prospect Avenue; thence SOool7'56"E, along said West right of way line of Prospect Avenue, 110.00 feet, to the Southeast corner of said Lot 11; thence S89057' 12"W, 110,00 feet to the Southwest corner of Lot 10 of said Tack and Warren Subdivision~ thence SOOo 17' 56"E, 1 0,00 feet; to a point on the centerline ofa vacated alley as recorded in Q,R, Book 4616, page 1440, of said Public Records~ thence S89057' 12"W, along said centerline, 50,00 feet; thence NOOO 17' 56"W, 1 0,00 feet, to the Southwest corner of said Lot 9; thence continue NOool7'56"W along the West line of said Lot 9,110.00 feet to the point of beginning. . (containing 18100,18 S,F., M.O,L.) . S:\Projetts\Downtown Pond - #98-0116-EN\legals for plat and lease.doc '3!\'t/ 103dSO~d ::! I- W W ~ III ~ ~ < a.. .....- o ""- 0') N ""- .....- '. ( ~:~:~ J~ N . :~ ~ -", I'.... L " " 9 ,NOO'7'~.W - . , - , , - ~ I- o -J I- o -J ~ III l5 -J I ~ I . - . l- S >. Q,) > ~ :J en -0' u Cl.. l-, . ., -ft i:t ~;~ ~fi~ l'" ~ i , 3 I ~ I , ::i ' ,< ", ~ I > . !:: I- g ..... o ca o .~ Il1 to.~ II ..c a .....Jt-"-- W () .. V a:: Q,)- <{.....O 0....00 Z(f) to- I- g I IC I- o -J I "r"-"l I l t-.. -"- . , . - . ,.- I ,.- III - ,.- J: l5 I -J l- I IE - I I 0 . .... .... l- I 0 g N -' .... Z I g I l ... 9 . . . ( L ( ( L ( . , . EXHIBIT A-I Legal Descriptions and Sketches for parcel: lA . . I- W W ~ t/)o 0<0 z. <0:; -it/) ~ W -i U :r f- a o 2 1 ... b J . ... ..J L .-. - ~ 0) ~ .-. 31\ V lO3dSOHd .-. SOUlli > 30.00' W ~ ~ bg " . tn. ",l/') fa &II E I- g .. -" ---.. o " ---..--..--- >; (l) ..... > W l... W .:l ~ en . CI) ~ 0 Q: -+oJ <' 0 Q. Co enl{) <(C/) 1/ ....... "- ..c: . ....J to- 0- W U .. (U cr (l)_ -+oJ 0 <(OU o..Z(/) - - I I- g '.-'.-..-"-., ~ l- e oJ I "-"-- '. .. . --. . . ::? l- e ..... ,., l- e oJ :! l- e oJ ..--~.--..---.. ..:..-. ..--..--..--.. f'f I- o oJ "It ..- r - "l ij 3; W'loa ~~ ;.: Cti K ,bil$ "-'.-.._0.___,. Q..' . . . --- . " --. r- . EXHIBIT A-2 Legal Descriptions and Sketches for parcel: IB . .. Parcel IB Begin at the Southeast corner of Lot 8, Block 2, Magnolia Park as recorded in Plat Book I, Page 70, of the Public Records of Hills borough County, Florida, of which Pinellas County was once a part, thence N890ST 12"E along the South line of said Lot 9 and Lot 10, Block 2, of said Magnolia Park, 101.90 feet, to the Southeast corner of said Lot 10; thence SOooIT56"E, along the East line of Lot II, Block 2 of said Magnolia Park, 132.50 feet to the southeast corner of said Lot 11; thence continue SOooIT56"E, 8,16 feet; thence S89042'04"vV, 21.42 feet; thence SOoo02'48"E, 22,38 feet; thence S89057'12"W, 46.67 feet; thence SOoo02'48"E, 29.37 feet to the South right of way line of Park Street; thence S8905T 12"W, along the said South right of way line of Park Street, 63,71 feet; thence N23029'22"W, 34.41 feet; thence S66030'3S"W, 14.94 feet; thence N23029'22"W, 11.89 feet; thence N83053'OO"W, 188.67 feet, thence N0600TOO"E, 3,23 feet to the North right of way line of said Park Street; thence S8905T 12"W, along said North right of way line of Park Street, 5.08 feet; thence S81018'37"W, 157.33 feet; thence N08041 '23"W, 46,67 feet; thence N81 018 '37"E, 8.85 feet to the East right of way line of Prospect Avenue;'thence NOooIT56"W, along the said East right of line of Prospect Avenue, 20.22 feet; thence S81018'37"W, 1.05 feet; thence N08041 '23"W, 46,67 feet; thence NSI 018 '3T'E, 7,93 feet to the said East right of way line of Prospect Avenue; thence NOooIT56"W, along said East right of way line of Prospect Avenue, 143.79 feet to a point on the apparent South right of way line of Cleveland Street as described by the survey map, prepared for the City of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/0 I; thence N89057' 12"E, 408,00 feet along said apparent South right of way line of Cleveland Street to the West line of said Lot 9; thence SOool7'56"E, along the West line of said Lot 9,102,50 feet, to the point of beginning. (containing 120739.82 S.F., M.Q,L.) S:\ENGIN\Projects\Downtown Pond - #98-0 116-EN\legals for plat and lease. doc . . . . PROSPECT AVE . I I . (.I)Z-u ("')0)> Q,......... -(t)-'V !T? " (') f'T1 _-;r- -:::r -'- 1/ en OJ 0) CE' q:J o r-.- "1) ~ t/) i1 m -. I Q en c ..., ~ ':< I . i z o %J .., :r Q I -" -., I I ~ I 1Il~ ?~ 010 Ot/) it ,., ", -. I I I · EXHIBIT A-3 Legal Descriptions and Sketches for parcels: 2&3 . . . . :? I 1 01 ... N 9 ... . :r .::; . '3 . ~ 1 ~ 1 u I ... 1 ~ 1 0 0 ,.. :::: ...J .. .... ... ... ' .. ... .... 0 1 1 i ~ i ..J U a I "- ...' . ~, :; 0 -' 1 3 I 1 '''t /0/ I ~ I- Z ~ w J . ;; . 0 w f!E f .. -+ 111 . ~ I 0: <( "'- I a.. . .. z ., ~ a!~ ~ ...:~ ::II aj <II I za: .. ~ vi ~ I "" :II l- . W w f!E (I) w U Q: w ii: . I "- I I -"-"-1 I j : i~., 9 ~g~ I , ;'. (lQ. / " -"--1 I I .... w w 1= VI ~ ~ >, <V > I... ::J CI) o (JO ... :z~ g ~~b ~. n ~H~;< ~alJo'~ ~~a~i!/ Q....~ll! 3~uQ. ...=~ "'5 i~ :c ::: ... o ..J I / / I .. N .. .... .. w .. w ~ ~ ~ (I) - w ! u ~ 5 II: ii: a ... l!! ... o ... I I I / I J-" ~ ... o ..J ... 0' ...J. I I "/-"-"j-" .-~ ._-, ....d 'S>, '" "".,,.. ...._"""...."'~,,__" -r"d"", Parcel 3 Begin at the Northwest corner of Lot 9, Tack and \Varren Subdivision, as recorded in Plat Book 21, Page 48, of the Public Records of Pine lias County, Florida, also being a point on the South right of way line of Park Street; thence N8905T 12"E along said South right of way line, 160,00 feet; to the Northeast corner of Lot 11, of said Tack and Warren Subdivision, also being a point on the West right of way line of Prospect Avenue; thence SOoo IT 56"E, along said \Vest right of way line of Prospect Avenue, 110,00 feet, to the Southeast corner of said Lot 11; thence S89057' 12"W, 110,00 feet to the Southwest corner of Lot 10 of said Tack and Warren Subdivision; thence SOooIT56"E, 10.00 feet; to a point on the centerline ofa vacated alley as recorded in Q,R. Book 4616, page 1440, of said Public Records; thence S89057' 12"W, along said centerline, 50,00 feet; thence NOooI7'S6"W, 10,00 feet, to the Southwest corner of said Lot 9; thence continue NOooI7'S6"W along the West line of said Lot 9, 110.00 feet to the point of beginning, (containing 18100.18 S,F., M,Q,L.) S:\Projects\Downtown Pond - #98-0 116-EN\legals for plat and lease,doc , , . . , . '31\ V 1:l3dSO~d t- 9 N ,- t- ,9 ::! I- W W ~ en ~ ~ <: a. ..- o ""'- en N ""'- ..- ..--L.._..~ J: . . _ . , <1> (" ~ . ~~ - ~ - .. - ", . 0 1'000' L . . " Noo,r56"W - , . - . . - . . . .-.. :! t- o ... .... 9 ~ II) .... o ... :>.. Q) > I... 1-.. ~ -.'- : "-"-0' I u I ~ I ~ :! u ,,- ~ I wi ~ ~ "'~I I~i ~I- ~~R ... o c.o .~ l!) f"").~ " ...c. l ~~~ ~Q)- <("'0 Q.~~ "_"_'._0. ,... 9 I~ ...J ....J <: !: ..- I t- 9 I-"-.ft - -" I- o ... . I r-.._.._.._..~ . , I l/'I .... 9 I ..~.._..l I -" I "- I .., l- I N 0 ... ' .... 9 I --1. t- 9 I I I :I l- II: o 2 . t- o ... l . . ~ , L , ( L C . = 0::: w I- o::! ~ 0::: o::! W -I U I- () w ..., o c:: 0. '\ , ~ c' ~ ! C =: - - -- <: :.. : <: '" -I ::! <:1 ,,- f ~ 'I . " i ",! .' . . -, ~. ..' ;; = ..:. ., 0"- :.. -: .. :: .:: - '" .:: :- <: -' - ~, =.. . l.: !- - .' ~ .. =~ - : f ~ >- I- :.. = =, u.: : () 0:: w I- Z w () :: I.' '- .' "- - :: c: -:- :: '- :: :. .~ ...... -" :- ... ... ~ , i; ': .21:' ~~ ...' '" 1 " ,...--~ . ~ ~ ........-.; ~ ~ -, -- --, H ~ ~ ..,. ~ . . . EXHIBIT "C" SPECIAL WARRANTY DEED COMMUNITY REDEVELOPMENT AGENCY, also known as THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, a body politic and corporate of the State of Florida created pursuant to Part III, Ch, 163 Fla. Stat., whose address is 112 S. Osceola Avenue, Clearwater, Florida 33756, hereinafter called the GRANTOR, for and in consideration of Ten and 00/100 Dollars ($10.00), and other valuable consideration the receipt of which is hereby acknowledged, does bargain, sell, convey and grant unto THE BALK COMPANY, INC" a Florida corporation, whose address is , hereinafter called The GRANTEE, the federal tax identification number of which is: , its successors and assigns forever, the real property, situate, lying and being in Pinellas County, Florida, more particularly described in EXHIBIT "A" attached hereto. TAX PARCEL 1.0. # Subject to taxes for current year and to those matters listed in EXHIBIT "_" attached hereto. TO HAVE AND TO HOLD unto the said GRANTEE, its successors and assigns forever, and said GRANTOR warrants and shall defend the title against the lawful claims of all persons claiming by, through, or under it, but against none other. TOGETHER with all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining. IN WITNESS WHEREOF, GRANTOR has caused these presents to be executed in its name by its Chairman this day of 12002, [SIGNATURE PAGE FOLLOWS] PREPARED BY AND RETURN TO: C-1 ~ ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER By: Executive Director Chairman WITNESSES (as to all signatures): Printed Name: Printed Name: STATE OF FLORIDA COUNTY OF PINELLAS The foregoing SPECIAL WARRANTY DEED was acknowledged before me this day of , 2002, by BRIAN J. AUNGST, as Chairman, and RALPH STONE, as the Executive Director of the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, a body politic and corporate, on behalf of said entity. Such persons are personally known to me or presented as identification. Notary Public, State, of Florida My Commission Expires: My Commission Number: C-2 . . . . EXHIBIT "0" MEDITERRANEAN VILLAGE PUBLIC WORKS INFRASTRUCTURE IMPROVEMENTS SCHEDULE Public Works Administration will accomplish the following Items: 1. Vacate Park Street from Ewing Avenue to Prospect Avenue. including one small parcel east of Ewing Avenue, 2. Vacate Ewing Avenue from Pierce Street to Park Street. 3, Vacate three parcels on Prospect Avenue north of Park Street. 4. Remove asphalt pavement and base and City water line from vacated Park Street. 5. Remove asphalt pavement and base from vacated Ewing Avenue. . 6. Coordinate undergrounding of other utilities (Florida Power, Verizon Telephone) in vacated Park Street and Ewing Avenue. 7. Relocate sanitary sewer on Ewing Avenue and Park Street east of Ewing Avenue, 8, Construct downtown lake. 9. Construct downtown lake park amenities. The above items will be completed based on the following schedule: Item Completion Date 11/15/01 11/15/01 01/10/02 03/15/02 03/15/02 04/10/02 03/15/02 03/31/03 03/31/03 . Vacate Park Street Vacate Ewing Avenue Prospect Avenue Vacations Remove Asphalt and Water Line from Park Street Remove Asphalt from Ewing Avenue Coordinate Other Utility Undergrounds Relocate Sanitary Sewer Construct Downtown Lake Construct Downtown Lake Amenities . . . , Exhibit E LICENSE AGREEMENT THIS LICENSE AGREEMENT, made and entered into this day of , 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA (CRA), a public body corporate and politic of the State of Florida, created pursuant to Part III, Chapter 163, F.S., hereinafter referred to as "Licensor," and THE BALK COMPANY, INC" hereinafter referred to as "Licensee": WHEREAS, Licensor is the owner of the fee simple title to the area described in Exhibit 1 and hereinafter referred to as the "Premises"; and WHEREAS, Licensor is willing to grant a license to Licensee to use the Premises for the purposes stated in this agreement; NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOllOWS: 1. The term of this agreement is for 120 days from the Effective Date of the Agreement for Development and Disposition of Property (Mediterranean Village in the Park) between Licensor and Licensee. Reference to the Executive Director throughout this agreement refers to Licensor's Executive Director or designated agent. The term "Licensor" refers to the CRA and any act to be taken by the Licensor under this agreement must be taken by the CRA Trustees. 2, The Licensor may cancel this agreement at any time by giving 5 days prior written notice to the Licensee, or any of its agents, This right of termination is to be considered in addition to the right of termination set out in this agreement. 3, The Licensee shall have the right to place and maintain a temporary sales office facility for the purpose of marketing the construction project for the Mediterranean Village in the Park, Any other use of the premises described is prohibited unless specifically authorized by Licensor. 4. The Licensee is responsible for the cleanliness and maintenance of the premises. 5, The hours of operation for the authorized use shall be as agreed to between the parties. 6. The Licensee hereby covenants and agrees to pay all costs associated with the maintenance of the premises and any improvements thereon necessary for such use. 7. The Licensee hereby covenants and agrees to make no unlawful, improper, or offensive use of the Premises and shall meet all relevant code requirements. Licensee shall not permit any other business to be operated in or from the Premises. Licensee further covenants and agrees not to assign, pledge, hypothecate, or sublet this agreement in whole or in part. This paragraph shall be construed to include a prohibition against any assignment or subletting by operation of law. , . . 8. Licensee agrees that it will promptly pay all ad valorem real property taxes and personal property taxes that may be assessed against the Premises during the . 2 . . . ~ term of this agreement. Licensee further agrees that it will pay any other taxes, including but not limited to, licenses and permits relating to the operation of the business conducted on the Premises, which are required by law. 9. Licensee hereby covenants and agrees to pay all bills for electrical current, gas, water, heat, refuse collection, and other services to the Premises when due, 10. Licensee is not authorized to make any structural improvements or changes to the premises unless expressly agreed to in writing by Licensor. 11. Licensee will be responsible for picking up and disposing of all trash, garbage, and other debris, whether or not initiated from the sales of the premises. Licensee is authorized to place trashcans in the immediate area of the Premises, said trashcans to be maintained by the Licensee. 12. Licensee agrees to indemnify and hold Licensor and its employees harmless from and against any and all claims, demands, causes of action or lawsuits of whatever kind or character arising directly or indirectly out of this agreement and/or performance hereof. This indemnity clause includes, but is not limited to, claims, demands, causes of action or lawsuits for damages or injuries to goods, wares, merchandise and property and/or for any bodily or personal injury or loss of life in, upon or about the Premises or the surrounding premises the Licensee is required to maintain or which the Licensee uses in connection with the business operated at, on or from the Premises. All personal property, including trade fixtures, in the Premises shall be at the risk of Licensee, and Licensor shall not be liable for any damage to such property arising from any cause, Licensee agrees to investigate, handle, provide defense for and 3 . alcoholic beverages, if Licensee at any time during the term of this agreement obtains a license to serve any type of alcoholic beverages. (f) The eRA, as Licensor, shall be named as an additional insured. 14. If at any time during the term of this agreement, the premises or any improvement is damaged or destroyed, Licensee agrees to immediately repair or remove damaged improvements and restore premises to its original condition at the Licensee's risk and expense. 15. Licensee shall secure prior written approval from Licensor for modifications or remodeling of existing facilities or for the construction of any new facilities. 16. Licensee shall, at its expense, at all times during the terms of this . agreement keep the Premises and all improvements and facilities thereon in good order, condition, and repair. It is specifically understood by Licensee that the Licensor has the right to inspect the premises and improvements at any time to ensure that the premises and improvements are indeed in good order, condition, and repair. Upon the termination or expiration of this agreement, Licensee shall repair any and all damages to the premises. 17. Upon the termination or expiration of the agreement for whatever cause, the Licensee shall have the' privilege at its own expense of removing its equipment, signs, insignia, and other indicia of its tenancy or use. 18. Licensee agrees to indemnify and save harmless the Licensor by reason of any mechanic's lien which may be asserted as a claim against the property, and to . furnish Licensor a good and sufficient bond signed by a reputable bonding company 5 doing business in Florida, which bond shall be in an amount equal to 100 percent (100%) of the cost of construction of the contemplated improvements to the demised . premises. 19. Notices hereunder shall be given only by registered letter and shall, unless otherwise expressly provided, be deemed given when the letter is deposited in the mail, postage prepaid. addressed to the party for whom intended at such party's address first herein specified or to such other address as may be substituted therefore by proper notice hereunder. Notice to be provided to Licensor and Licensee as stated below: As to Licensor: Community Redevelopment Agency City of Clearwater Post Office Box 4748 Clearwater. Florida 34618-4748 . As to Licensee: The Balk Company. Inc. 20. No sign of any type will be posted, erected, hung or otherwise placed in view of the general public so as to advertise any product or identify the premises unless permitted by the City of Clearwater Code of Ordinances. as they now exist or as they may be amended, and unless authorized and approved by the City. 21. In the event the Licensor retains an attorney to enforce any of the provisions of this agreement or renewals of or addenda to this agreement, or to effect the enforcement of any legal right of the Licensor against the Licensee, the Licensee . 6 . . . agrees to pay the Licensor all costs of said enforcement reasonably incurred, including court costs and reasonable attorney's fees. IN WITNESS WHEREOF, this agreement is executed as of the date first above written. Licensor: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA By: Brian J. Aungst Chairperson Approved as to form: Attest: Pamela K. Akin City Attorney Cynthia E. Goudeau City Clerk Licensee: THE BALK COMPANY, INC. 7 . . . . Exhibit 1 Parcel lA, Begin at the Southeast comer of Lot 14, Block I, ~fJgnolia Park, as recorded in Plat Book I, Page 70 of the Public Records of Hills borough County, Florida, of which Pinellas County was once a part; thence NOOo 17' 56"W along the East line of said Lot 14 and Lot 3, Block I, of said Magnolia Park, 235.00 feet to a peine on the apparent South right of way line of Cleveland Street as described by the survey map prepared for the City of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/01; thence NS9057' 12"E, along said apparent South right of way line of Cleveland Street 270.00 feet to a intersection of the East line of Lot S, Block I, of said Magnolia Park and the \Vest right of way line of Prospect Avenue; thence SOooI T56"E along said West right of way line of Prospect Avenue 97.87 feet; thence leaving said West right of way line East, 14,49 feet; thence South, 30.00 feet; thence West, 14,]3 feet to a point on said West right of way line of Prospect Avenue; thence S0017'56"E, along said West right of way line of Prospect Avenue 107.14 feet to the Southwest comer of Lot 9, Block 1, of said Magnolia Park; thence 589057' 12"\V, along the North right of way of Park Street, 54.00 feet to the Southeast comer of Lot 10, Block 1 of said ~ragnolia Park; thence NOool7'56"W, along the East line of said Lot 10, 132.50 feet to the Northeast corner of said Lot 10, thence S89057'12"W, 202,00 feet; thence SOool7'56"E, 132.50 feet to the North right of way line of Park Street; thence S89057'I2"W along said North right of way line of said Park Street 14,00 feet to the point of beginning, (Containing 37102,27 S.F., M,Q,L.) S:\Projects\Downtown Pond - #98-0116-EN\Jegals for plat and lease,doc . . . ... w w cr t- "'0 CD o z. <~ ..JVl ~ W ..J U I I- a o z 1 ~ (, ... J - 31\ 'V l03dSOCJd SOUlli 30.00' .~ ... . -0 h~ lI). all) III III S! ... o .../ "--"-"--'0-- :: I ... o .../ '. -. ~ --" . --" ~ ... o ... I "- "--" . . --- . . ::: .. o ... .., .. o -' :! ... o ... . . - .. . -- . . --. . . "-",--.. ... '"' ..', - - .. Lj 9; ..,u a :~ ; gll: a-' co R . lit "-"-"-.O.-L.. ~ ... o -' "-.. I I- W w f:: '" ~ cr < a. >. cv > ~ :::J '" o ......, o Co ",tl') .- <(",II ...- '- .c . -1'--"'- W .. U .. (1.) ,....(1)- u.."""'o <(ou Q..Z(/) . ~ O"J ~ .- ..... > W 0:: EXHIBIT F . INFRASTRUCTURE IMPROVEMENTS COMPLETION CERTIFICATE [Mediterranean Village in the Park] This Infrastructure Improvements Completion Certificate ("Certificate") is made this _ day of , 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL 33756, and THE BALK COMPANY, INC., a Florida corporation (the "Developer"), whose address is This Certificate pertains to an Agreement for Development and Disposition of Property (Mediterranean Village in the Park), by and between the Agency and the Developer, dated as of , 2002 (the "Development Agreement"), which provides, among other things, for the sale of property within a project site as described in Exhibit "A" attached hereto and made a part hereof and the granting of certain easements (the "Property Site") for the development and construction of the Infrastructure Improvements and the Mediterranean Village in the Park Project, as same are defined in the Development Agreement. . As provided in Section 5.05 of the Development Agreement, the construction and installation of the Infrastructure Improvements have been completed substantially in accordance with the requirements of the Development Agreement and such improvements are substantially complete. The parties hereto acknowledge and agree that such Infrastructure Improvements have been so completed and have executed this Certificate as conclusive determination of such completion and satisfaction of the Agency's obligation under the Development Agreement to construct and install the I nfrastructure Improvements. A copy of the fully-executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. A copy of the Infrastructure Improvements Plans and Specifications is on file with the City Engineer, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. . IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the _ day of , 2002. . COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA By: ATTEST: By: Brian J. Aungst, Chairperson Ralph Stone, Executive Director THE BALK COMPAt\IY, INC. By: (SEAL) ATTEST: By: STATE OF FLORIDA COUNTY OF PINELLAS , as Its . , as Its Secretary The foregoing instrument was acknowledged before me this day of , 2002, by Brian J. Aungst, Chairperson of the Community Redevelopment Agency of the City of Clearwater, a public body corporate and politic of the State of Florida, on behalf of the Agency. He is personally known to me or has produced a valid driver's license as identification. (SEAL) PrintedlTyped Name: Notary Public-State of Florida Commission Number. lj . . . . . . . STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this , 2002, by , Company, Inc., a Florida corporation, on behalf of the corporation. known to me or has produced a valid driver's license as identification. day of of The Balk He is personally (SEAL) PrintedlTyped Name: Notary Public-State of Florida Commission Number: . . . . EXHIBIT "G" AGREEMENT EXPIRATION CERTIFICATE [Mediterranean Village in the Park] This Agreement Expiration Certificate ("Certificate") is made this _ day of , , by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL 32521, and THE BALK COMPANY, INC., a Florida corporation (the "Developer"), whose address is , FL . This Certificate pertains to an Agreement for Development and Disposition of Property (Mediterranean Village in the Park), by and between the Agency and the Developer, dated as of , 2002, (the "Development Agreemem"), which provides, among other things, for the sale of property within a project site as described in Exhibit "A" attached hereto and made a part hereof for the development and construction of the Mediterranean Village in the Park Project, as same is defined in the Development Agreement. The Development Agreement has expired in accordance with its own terms as of _, , and is no longer of any force or effect, and that the Mediterranean Village in the Park site is no longer subject to any restriction, limitation, or encumbrance imposed by the Development Agreement. This Certificate has been executed by the parties to the Development Agreement as provided in Section 17.19 thereof and constitutes a conclusive determination of satisfactory completion of all obligations under such Agreement and that the Development Agreement has expired, except for those matters which survive as noted above. A copy of the fully-executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the _ day of G-1 (SEAL) ATTEST: By: ,as Its: Executive Director (SEAL) ATTEST: By: Its: Secretary , as COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARW A TER, FLORIDA By: Its Chairman , as THE BALK COMPANY, INC. By: Its , as 0-2 . . . . . . STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this day of by , Chairman of the Community Redevelopment Agency of the City of Clearwater, a public body corporate and politic of the State of Florida, on behalf of the Agency. He is personally known to me or has produced a valid driver's license as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: ST ATE OF FLORIDA COUNTY OF PINELLAS The foregoing ,_, by on behalf of the corporation. license as identification. instrument was acknowledged before me this day of of The Balk Company, Inc., a Florida corporation, He is personally known to me or has produced a valid driver's (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: G-3 . . . EXHIBIT "H" AGREEl\-IENT TERMINATION CERTIFICATE [Mediterranean Village in the Park] This Agreement Termination Certificate ("Certificate") is made this _ day of , _, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL 32521, and THE BALK COMPANY, INC., a Florida corporation (the "Developer"), whose address is This Certificate pertains to an Agreement for Development and Disposition of Property (Mediterranean Village in the Park Project), by and between the Agency and the Developer, dated as of , 2002 (the "Development Agreement"), which provides, among other things, for the sale of property within a project site as described in Exhibit "A" attached hereto and made a part hereof for the development and construction of the Mediterranean Village in the Park Project, as same is defined in the Development Agreement. The Development Agreement has terminated in accordance with its own terms as provided in Section 13.05 thereof as of _, , and is no longer of any force or effect except for those provisions which expressly survive termination. This Certificate has been executed by the parties to the Development Agreement as provided in Section 13.06 thereof and constitutes a conclusive determination that the Development Agreement has been terminated, the rights, duties and obligations of the parties hereto have been terminated and released (subject to those surviving provisions) and the Mediterranean Village in the Park is no longer subject to any restrictions, limitations or encumbrances imposed by the Development Agreement. A copy of the fully-executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the _ day of COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA H-l (SEAL) A TrEST: By: , as Its: Executive Director (SEAL) A TrEST: By: Its: Secretary , as By: Its Chairman . I as THE BALK COMPANY, INC. By: Its ,as. H-2 . . . . STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this day of by , Chairman of the Community Redevelopment Agency of the City of Clearwater, a public body corporate and politic of the State of Florida, on behalf of the Agency. He is personally known to me or has produced a valid driver's license as identification. STATE OF FLORIDA COUNTY OF PINELLAS The foregoing ,_,by on behalf of the corporation. license as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: instrument was acknowledged before me this day of of The Balk Company, Inc., a Florida corporation, He is personally known to me or has produced a valid driver's (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: H-3 . . . EXHIBIT I ME~IORANDlJ~I OF DEVELOPMENT AGREEi\-IENT ~Iediterranean Village in the Park] This Memorandum of Agreement for Development and Disposition of Property ("Memorandum") is made this _ day of , 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEAR\VATER, FLORIDA. a public body corporate and politic of the State of Florida (the" Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL 32521, and THE BALK COMPANY, INC., a Florida corporation (the "Developer"), whose address IS This Memorandum pertains to an Agreement for Development and Disposition of Property (Mediterranean Village in the Park), by and between the Agency and the Developer, dated as of , 2002, (the "Development Agreement"), which provides, among other things, for the sale of property within a project site as described in Exhibit "A" attached hereto and made a parr hereof for the development and construction of the Mediterranean Village in the Park Project, as same is defined in the Development Agreement. The Development Agreement is incorporated herein and made a part hereof by reference as fully as though it were set forth herein in its entirety. It is the intention of the parties to hereby ratify, approve and confirm the Development Agreement as a matter of public notice and record. Nothing herein shall in any way affect or modify the Development Agreement, nor shall the provisions of this Memorandum be used to interpret the Development Agreement. In the event of conflict between the terms of this document and those contained in the Development Agreement, the terms in the Development Agreement shall control. A copy of the fully-executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the day of , 2002. COMl\tIUNITY REDEVELOPl\-IENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA By: Its Chairman I-I , as (SEAL) ATTEST: By: ,as Its: Executive Director (SEAL) ATTEST: By: Its: Secretary , as THE BALK COlVIPANY, INC. By: Its , as I-2 . . . . . . STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this day of I 2002, by I Chairman of the Community Redevelopment Agency of the City of Clearwater, a body corporate and politic of the State of Florida. on behalf of the Agency, He is personally known to me or has produced a valid driver's license as identification. STATE OF FLORIDA COUNTY OF PINELLAS The foregoing , 2002, by corporation, on behalf of the corporation. valid driver's license as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: instrument was acknowledged before me this day of of The Balk Company, Inc., a Florida He is personally known to me or has produced a (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: I-3 Exhibit J . Reports . 1. Geotecnical Data Sheet for Town Lake Project by P.S.I. dated October 1995; 2. Phase I Environmental Site Assessment (property A) by IT Corporation dated March 1999; 3. Phase I Environmental Site assessment (property B) by IT Corporation dated March 1999; 4. Phase I Environmental Site assessment (property C) by IT Corporation dated March 1999; 5. Phase I Environmental Site assessment (property D/901-909 Park Street) by IT Corporation dated March 1999; 6. Phase I Environmental Site assessment (property E) by IT Corporation dated March 1999; 7. Phase I Environmental Site assessment (Property F/900 Pierce Street) by IT Corporation dated March 1999; 8. Phase I Environmental Site assessment (Property G) by IT Corporation dated March 1999; 9. Phase I Environmental Site assessment (Property H) by IT Corporation dated March 1999; 10. Phase II Environmental Site Assessment (ESA) - Property A and Property B by Dames & Moore dated June 2, 1999; 11. Supplemental Phase II Environmental Assessment - (Property D&E) by ECT dated June 4, 1999; 12. Supplemental Phase II ESA - Property B by Dames & Moore dated September 13, 1999; 13. Report - Supplemental Groundwater Assessment - Property B by Dames & Moore dated February 8,2000; 14. Report - Semiannual Groundwater Monitoring - Property B by Dames & Moore dated May 17, 2000; 15. Report - Semiannual Groundwater Monitoring - Property B by Dames & Moore dated October 18, 2000; 16. Hydraulic Lift Removal Report - Property B by Dames & Moore dated October 2000; 17. Tank Closure Assessment Report - Property B by Dames & Moore dated October 2000; 18. Supplemental Groundwater Monitoring - Tank Closure Assessment - Property B by Dames & Moore dated October 27,2000; 19. Report of Geotecnical Investigations for the Town Pond Rehabilitation Project by Parsons Engineering dated November 6, 2000; 20. Monitor Only Plan - Property B by URSfDames & Moore dated December 2000; Site Assessment and Remedial Action Plan - Property B by URS/Dames & Moore dated April 2001; , 21. Summary of Environmental Activities by URS/Dames & Moore dated February 20 2001 ; . Exhibit J 22. Summary Document: Site Assessment and Remedial Action Plan - Property B by URSlDames & Moore dated April 2001; 23. Summary Report of Supplemental Soil Delineation Activities - Property B by URS dated August 2001; 24. Site Assessment Summary Letter Report - Property B by URS dated November 16, 2001; 25. Focused Risk Assessment - Property B by Hazardous Substance & Waste Management Research, Inc., dated November 2001; 26. Interim Source Removal Plan - Property B by URS dated November 2001; 27. Report of Hydraulic Equipment Disposal and Assessment Report for Property D by URS dated November 2001. . Correspondence 1. Response to FDEP Review Comments - Property B by URS dated May 15,2001; 2. Response to FDEP Review Comments - Property B by URS dated May 25, 2001; 3. Response to FDEP Review Comments - Property B by URS dated September 4, 2001; 4. Response to FDEP Review Comments (DRAFT) - Property B by URS dated November 19, 2001 (Note: This document has not yet been sent to the FDEP); 5. Subsurface Peat Layer - Property B by URS dated October 12, 2001; 6. Preliminary Opinion of Estimated Cost for the Removal of Organic Materials - Property B by URS dated October 22,2001; 7. Project Status Report Number 1 for September 2001; . 8. Project Status Report Number 2 for October 2001; and 9. Project Status Report Number 3 for November 2001. . . ..-.--.-------. I '. 1, .. cb 'h'~ff "\ . l-{T~--- I J JlLt~UlJ 'j; 1 ' '----1' '- ( <J . I -- '----- F~ C'- ----ll. .- II t , . " r--f-,"-- LU , -- ..-.--.-.-.- / '\v' r -- ~~\k"~_ ..oL.- ---- ./ - ,.- . ...... . '. j \ 1i.I .1 ::) II I L z 1--" --.. W ~~ /'\ ~ ,.... ~~ I ~, l/" " r- """l - - /f'o..M .rk~ --' .------....- --- . "4' / / ---_.,-, Ji"'-'-' ----- ~ J! ~ -&-<' , >-,.~ ! ~J ! '" ..2--..:.j..,.... ,-"'.. -.. "1 .... ' i I." ~~_ J.... i. ___.__l....; I ! AS-1 " AS.2 ; d~." , , I I - ..~..~_.._---+-.........--- ; ...; _! \ r-1 &! & I .-JA SW:1 ..- -,71'J & K--, _-\6.'1 S~.. ... SW.31 J . ACH4, ..! 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'-'" \ & - .~ G-1 ',~ ; Gt4 ~.5 1--G-6 i , : .r) G-8 \NjI ., NW~50[5] .... ; "-'j __,_ IV.W'1 ~ \ t I, \ 'I' . r \ ':' ..&: 0' -. -1 \ , \ i 8' 1', . \ ' \ A' . / & ' r "'I' "0 ' F-9 , '" ' . i-.-j I r I L.._ ___ . & ~ & r-~~ _..- .T & _ & -~ L. -- , v , E-10- ~.!l 78\ E-7 \ El~ E-1 f-c..~~a-(p'""Ef4 ~.o_ -.-'J .. . - 'K'" ~. "'- /1"... I r ,. , 1 . . !<\::- : .: ~ Y' , I 'r I " 1 .. ' .1.& " : - -/ ,/ . 1 _, '_...__.,.~~.._. . · ~_.~. ~~~.'-A&--a:- .--, -.... f ~.tt ""1 .,.. \ _ _' - -12, ""'-," l--:;"-~'~ J:1.._; Co2._J... C~.._]T.1,: " ..T1:~._.~C.7 C-8;,... '-. f- --.-.......-J. \ t" ...r .A.-~, ..... ... .. _ -./ /.... ---,--+-_ ' I U...__.__L. - ~ A . & ~ ~ ~ ~ ~..~ ;..- ~. .L.-_L=:_ ..=r} I A.11 A-10 A-9 A.a A-1 A.2 A-3 A~ A-5 A-6 A-7 P ~ R K' \ \ 8 PMW.3 ~~...lll\ ~t~UIl~\ll '{l IIjll I I i\lIf Ii'l~ \ ~~ \ \ ',1.-"- .. \~., . \. " I \ \.... '\ ' ..' \" \ ~ \,.. '. y\\ ~ ~\\i/ , . , ..........~,~.........._- --- --- ----. , -- "" ~-_...~~ " /0 ~ .' - / , .' ..; I ... , 1- EXHIBIT K MEDITERRANEAN VILLAGE IN THE PARK ! I I I I I ! I I i ~ 0 to 20 JO 60 1.-'-' , , LEGEND 8 PERMANENT MONITOR WELL . SOIL BORING LOCATION CJ SOIL REMAINING WITH ARSENIC LESS THAN 1.4 mg/kg AND GREATER THAN <r,B mg/kg i i I ~'-<1 ~._> I I. i f-' !! I! ~ I d 1,1 I I I] SW.13r- / ~ .,'" ,'" '\. / / , /' '., "-' "- : ~~~ Ur';:'-':/! : l ' --r I i ~ .60[1V !eo90[ir:F\:""; ~ 140 ] j... :"\.:. ~. . '. V ,\ / .. , /0" ;':1'-\.,: '- ! '\ '., V .~/ o i .t r p.:,l :.1' '} '..: '~r: .. 'I...." ";. .J.".." '. ./ - --.,,-- 0' '.,..,.. _ _____ ,.....-~ I /"- I '/"-:1 ,.----- .--- - /- , (- .,.. \ ~ J ESTIMATED EXTENT OF SOIL REMAINING WITH ARSENIC LESS THAN 1.4 mg/kg AND GREATER THAN 0.8 mg/kg "/1',/ ~ I f"-- "v I',v --.-- I I . EXHIBIT L SCOIJE OF '''ORK SOIL REMEDIATION PROPERTY B 901-927 CLEVELAND STREET CLEARWATER, FLORIDA Soi I will he removed from areas on the subject property that have been impacted with polynuclear aromatic hydrocarbons at concentrations that exceed soil cleanup target levels established in Chapter 62-777, Florida Administrative Code. Soil will also be removed from areas that contain arsenic at concentrations greater than 1.4 milligrams per kilogrmn (half of the risk-based soil cleanup target level of 2.8 milligrams per kilogram). Based on analytical data, soil impacted with polynuclear aromatic hydrocarbons is limited to the southern portion of the property. . URS Corporation (URS) estimates that approximately 8,130 cubic yards (12,200 tons) of soil will be removed from the subject property. Approximately 6,190 cubic yards (9,290 tons) of soil will be removed from the southern portion of the property. Approximately 1,940 cubic yards (2,910 tons) of soi I will be removed from the n011hern pOl1ion of the property. The limits of excavation are shown in Figure 1. The maximum depth of excavation will be approximately four feet below land surface. At certain locations, the depth of excavation wi\1 be two feet below land surface. These locations are depicted in Figure I. Excavated soil will be loaded onto trucks and transp011ed to a thermal treatment facility for proper disposal. Manifests and certificates of disposal will be provided. Following excavation, confirmation soil samples will be collected for laboratory analysis. Confirmation soil samples will be analyzed for polynuclear aromatic hydrocarbons and arsenic, as appropriate. Following receipt and evaluation of the confirmation soil sample analytical results, the excavated areas will be backfilled with clean soil. Soil will be placed in one-foot lifts and compacted in accordance with City of Clearwater requirements. . 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'7 Z ...~ ' ~ en ~~ ,<( <( 'rrt - --- :', '-.j '. , ... ...~ <( i ~... z' ;"'-3;, :< _A_.~_ r-. .....7--... ~~ '-'- ..I ',:" qo ... .....e.....J '. ~~ <( - ..;';"., :.. ':' ~ ':' ~ '.....e ......u.....~ 5l", - .~'. ". ~" t' -*z;.>_ '.7 <flIIlII::).. ~ \.-.... ...~~~~ ..;~ '" ... ....:7 :. ""'IIIIIIIII en ~ . <( , i . -.... ........ ...~ I .....:t- ... ~~- ~ "'~:'IlII:i: " , '~---i ...r~' ;g: ,''''l~ ~ 1.'-- ..... ~-'l~ -_. . J. : ~ .i!i~ ...~ ....~~.~t...:: .. .. --. - ~:::=;r"'~ ~l ~~ dr-"'~ ...~-~~ "'3"~ " _ .. ',1 ' ';-' <, ...~~--~~...~ ...~. ~~ , ..- -~ , ~~ \ ....:L-.:: ;t3~...~... - \ ~ ..'...-;. ~-~t-' > ~ ,- ~~ ~N~ ....,.-- ,,;;,:. \~.:: ~ I l .....,,--.t': \W-:E: .c ::: 1 ,_.,,' -~ ,!r--, . -' ..... \ ~-: -.~...~....-: .1. <(: .-.....0..... w ~ I J : OJ ~~ \ I... I ./ ~~ l '- "p'~ i __ .., ~ ~ . . ~i".,. \i<::. ~.~~..;, . .. '....----:;. I f-' -., , , : l' t_-_.-r. ~~ , .:.--.---7 ._;L.-_,l-,- .- / r.... " \"-~ :...;~=~~ I ! 1-T1lI.-: , :f~~~.~ ; ,-::11 ':. - I , !;r ' " t- ~liL~~D-~ I . ,-- , --.., ''; ,1/ -+ ' ... .( '" .c ~ .c ~IT --'-1 j , 1 ,-I \ '--/ , . \~_:~ .,./~ <9 .~; ""-I 1/ '/. fi ~ l 8l ::::J ~ ~ i ~ / ~ n N 3 Ittif ' EXHIBIT M LICENSE AND ESCROW AGREEMENT STAGE II PROPERTY This License and Escrow Agreement made and entered into this 4th day of March, 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA a public body corporate and politic of the City of Clearwater, Florida, created pursuant to Part III, Chapter 163 F.S" hereinafter referred to as "CRA" and the BALK COMPANY, INC, a Florida corporation, hereinafter referred to as "Balk." WHEREAS, eRA is the owner of the fee simple title to the area described in Exhibit "A" and hereinafter referred to as the Stage II Property; and WHEREAS, CRA is willing to grant a license to Balk to enter onto and occupy the Stage II Property for the purposes and under the conditions stated in this Agreement; and WHEREAS, in order to secure performance by Balk of certain obligations under this Agreement, the parties desire to enter into this License and Escrow Agreement. NOW, THEREFORE, it is mutually agreed as follows: 1. BackQround. The parties acknowledge that Balk has contracted to purchase certain real property from CRA to be developed as a 100-unit residential townhouse development known as Mediterranean Village in the Park in the Community Redevelopment Area, consistent with that certain Agreement for Development and Disposition of property between the parties of even date herewith, hereinafter referred to as the Development Agreement. The parties also acknowledge that that remediation for existing environmental conditions ("Remediation") is required to be performed and completed by the CRA as described in the Development Agreement and the Brownfields Site Rehabilitation Agreement and desire to allocate the expenses of implementing the Remediation. Further, for its convenience and in order to avoid additional cost, Balk desires to undertake certain activities, Le. peat removal and associated backfilling, prior to closing on the Stage II Property. All such activities are at Balk's sole cost and risk. 2. Balk obligations. Pursuant to Section 11.010> of the Development Agreement, Balk agrees to contribute the sum of One Hundred Thirty Thousand and no/100 ($130,000.00) to be paid to the CRA by cashier's check within ten (10) days from the date of this Agreement as its contribution for the removal of soil to effectuate the Remediation. Balk, at its sole expense, shall perform the backfill work (Le., the "Work") required by DEP as part of the environmental remediation for which the eRA is responsible under the Brownfields Site Rehabilitation Agreement. In addition, removal of peat from the site, may be done at the discretion of Balk who shall be solely responsible for all cost related to such removal including the cost of backfilling, CRA shall be responsible for funding and performing all other work required to effectuate the Remediation. 3. CRA approval of fill. With respect to all fill used on the Stage II Property, the CRA shall have the right to disapprove the fill unless Balk demonstrates that it meets the "no further action" criteria of rule 62-785.680(1 }(b) of the Florida Administrative Code (including the soil cleanup target levels set forth in rule chapter 62- 777 and the additive effects of multiple contaminants), No fill that exceeds these criteria shall be used for any backfilling at the Stage II Property. Balk shall be responsible for any sampling and analysis required to ensure compliance with this provision, including any required by the CRA in order to determine suitability of the fill for such backfilling, 4. Responsibility for Contractor fees. Balk shall be solely responsible for all work performed by Balk's contractor. In addition to any other requirements herein, Balk shall provide CRA with a certification signed by Balk's contractor verifying receipt of payment due (and payment of subcontractors if any), for the cost of all work performed on the Stage II Property in excess of the Work as described in paragraph 2. Balk agrees to indemnify and save harmless the CRA by reason of any mechanics lien which may be asserted as a claim against the property. 5. Notices. All notices which are required or permitted hereunder must be in writing and shall be deemed to have been given, delivered, or made as the case may be, notwithstanding lack of actual receipt by the addressee; (1) three (3) business days after having been deposited in the U.S. Mail, certified or registered, return receipt requested, sufficient postage affixed and prepaid, or (2) one (1) business day after having been deposited in an expedited overnight courier service such as by way of example but not limitation, U.S. Express Mail or Federal Express addressed to the party to whom notice is intended to be given at the address set forth below: Balk - Balk Company, Inc. 290 Cocoanut Avenue Sarasota, Florida 34236 Attn: Mr. Bruce Balk Copy to- E.D. Armstrong, III, Esquire Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A. P.O. Box 1368 Clearwater, Florida 33757-1368 City- William B. Horne, II City Manager City of Clearwater 2 P.O. Box 4748 Clearwater, Florida 33758-4748 Copy to- Pamela K. Akin, Esquire City Attorney City of Clearwater P.O. Box 4748 Clearwater, Florida 33758-4748 Any party may change address to which notices are sent by giving the other party written notice of any such change in the manner provided in this section, but notice of address changes is effective only upon receipt. 5. Term of AQreement. The term of this Agreement is for 180 days from the effective date of the Agreement for Development and Disposition of Property Mediterranean Village in the Park between CRA and Balk. All work permitted or required pursuant to this Agreement shall be completed by Balk within 180 days. 6. Escrow AQreement. In order to ensure that the Work is completed to the satisfaction of eRA and DEP, Balk, upon its execution of this Agreement, shall deliver to Fowler White Boggs Banker P.A. (ie, "Escrow Agent") the sum of $160,000.00 in good and sufficient funds to be held by Escrow Agent in escrow pursuant to the terms and conditions set forth in this section 6. (a) Upon receipt of the sum of $160,000.00 (hereinafter the "Escrow Fund") in good and sufficient funds from Balk, Escrow Agent shall hold and retain the same in trust in a non-interest bearing bank account. The Escrow Fund shall be disbursed by Escrow Agent in accordance with the following provisions: (i) Within ten (10) days after Balk has provided Escrow Agent with an invoice from a contractor for costs incurred in performing the Work and certification from the CRA that the Work has been done in compliance with the remediation requirements and that the CRA has received a certification from the Contractor as provided in paragraph 4, the invoice amount shall be disbursed from the Escrow Fund to the contractor; (ii) Within ten (10) days after Balk or CRA has provided Escrow Agent with reasonable written evidence establishing that DEP has accepted and approved the Work, and certification signed by Balk's contractor verifying receipt of payment due (and payment of subcontractors if any), the remaining amount, if any, in the Escrow Fund shall be disbursed to Balk; (iii) Escrow Agent shall disburse the Escrow Fund or any portion thereof at any time in accordance with any written direction duly executed by both Balk and CRA. 3 (b) Escrow Agent's duties hereunder shall terminate upon the disbursement of the entire Escrow Fund. (c) In the event of any dispute between Balk or eRA concerning the disbursement of the Escrow Fund under this Agreement, each party hereby agrees not to bring any action, whatsoever, against Escrow Agent or to otherwise involve Escrow Agent, as a party, in any such dispute or conflict. eRA hereby acknowledges that it has been advised that Escrow Agent currently acts and plans to continue to act as counsel for Balk in this matter and in other matters and that no confidential, fiduciary, or attorney-client relationship is established by and between CRA and Escrow Agent as a result of this Agreement and that CRA is not looking to Escrow Agent for any legal advice or consultation hereunder and waives any claim of conflict of interest that might be asserted as a result of Escrow Agent also representing Balk in connection with this matter or other matters related to or arising under this Agreement. (d) Balk and CRA do hereby release and further agree to defend and indemnify Escrow Agent from any and all actions, claims, damages and liabilities of whatever nature or kind, whether at law or in equity, which may be asserted against Escrow Agent by any of the parties hereto or any third parties and which actions, claims, damages, (including costs and reasonable attorneys fees incurred by Escrow Agent) and liabilities arise from, are related to or are associated with Escrow Agent's actions or omissions under this Paragraph 6, except nothing contained herein shall relieve Escrow Agent from liability arising out of Escrow Agent's gross negligence or willful malfeasance. (e) If Escrow Agent is in doubt as to its duties or liabilities under the provisions of this paragraph 6, or in the event a dispute arises between the parties or any of them regarding the disbursement of the Escrow Fund, Escrow Agent may interplead the Escrow Fund into the Circuit Court of Pinellas County, Florida, whereupon, after notifying all parties concerned with such action, all liability on the part of Escrow Agent shall terminate. Escrow Agent shall be reimbursed its reasonable attorneys fees and costs incurred in connection with the interpleader action either out of the funds deposited or by the parties to this Agreement. (f) The parties hereto agree that Escrow Agent shall not be required to make any disbursement of the Escrow Fund or any portion thereof except in accordance with the terms as set forth in this Section. (g) Any notice to be given under this paragraph 6 must be given in writing and either sent by certified mail, return receipt requested, postage prepaid, or, sent by overnight or hand delivery courier service to the party at the address hereinafter specified, or sent by facsimile transmission to the fax number of a party as hereafter specified, and shall be deemed to have been given, when sent if by certified mail or overnight delivery service or when delivered if by hand delivery courier service or when transmitted if by facsimile transmission. Such no~ice shall be given to the parties hereto at the addresses or fax numbers below. Any party hereto may, by giving five (5) days' 4 notice to the other in accordance with the aforesaid provisions, designate another address or fax number for notices. Salk: The Balk Company, Inc. 290 Cocoanut Avenue Sarasota, FL 342356 Facsimile: (941) 366-3301 Agency: Community Redevelopment Agency of the City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756-5103 Facsimile: (727) 562- Escrow Agent: Fowler White Boggs Banker P.A. P.O. Box 1438 Tampa, FL 33601 Attn: Ronald H. Noble, E~q. Facsimile: 813-229-8313 7. Indemnitv. Developer shall indemnify against and hold the City harmless from any liability for negligence or intentional wrongful acts or omissions of Developer or its employees, agents, contractors, or subcontractors, with respect to any activity at the Stage II Property related to the peat removal and all backfilling. This Indemnity provision shall survive the term of this agreement. 8. Entire AQreement. This Agreement and the exhibits referenced herein embodies and constitutes the entire understanding among the parties with respect to the transaction contemplated herein and all prior or contemporaneous agreements, understanding, representations and statements, oral or written, are merged into this Agreement. Neither this Agreement nor any provisions hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the party against which the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only waiver, modification, amendment, discharge Or termination is sought, and then only to the extent set forth in such instrument. 9. Applicable Law. This Agreement is construed in accordance with the laws of the State of Florida. 10. HeadinQs. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this contract. 5 11. Bindinq Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, personal representative and successors by law. 12. Interpretation. Whenever the context hereof shall so require, the singular shall include the plural, the male gender shall include the female gender and neuter and vice versa. This Agreement and any related instruments shall not be construed more strictly against one party than against the other by virtue of the fact that initial drafts were made and prepared by counsel for one of the parties, it being recognized that this contract and any related instruments are the product of extensive negotiations between the parties and that both parties have contributed substantially and materially to the final preparation of this contract and all related instruments. 13. Time is of the Essence. Time is of the essence of this Agreement. Should any period of time specified herein and on a Saturday, Sunday or legal holiday (recognized in Clearwater, Florida), the period of time shall automatically be extended to 5:00 p.m. on the next full business day, 14. Other AQreements. No prior or present agreements or representations shall be binding upon either party unless included in this Agreement. No modification or change in this Agreement shall be valid or binding upon the parties unless in writing and executed by the party or parties to be bound thereby. 15. Nothing in this Agreement shall be construed to constitute the creation of a partnership or joint venture between the parties. Countersigned: CITY OF CLEARWATER, FLORIDA By: William B. Horne II City Manager Brian J. Aungst Mayor-Commissioner Approved as to form: Attest: Pamela K. Akin City Attorney Cynthia E. Goudeau City Clerk THE BALK COMPANY, INC. 6 By: Bruce Balk, President The undersigned Escrow Agent acknowledges receipt of the sum of $ by way of check (subject to collection) from The Balk Company, Inc. as the Escrow Fund described in Section 6 of this Agreement and the terms of the escrow arrangements set forth in Section 6 are accepted by the undersigned. FOWLER WHITE BOGGS BANKER P.A. By: Its: Execution Date: 7