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DEVELOPMENT AGREEMENT FOR STATION SQUARE DEVELOPMENT AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY (Station Square Development) This Agreement for Development and Disposition of Property ("Agreement") is made as of this 17th day of February, 2004, 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 STATION SQUARE, LLC, a Florida limited liability company ("Developer"). WIT N E SSE T H: WHEREAS, as of June 23, 2003, pursuant to the Request for Proposals, dated May 14, 2003, the Community Redevelopment Agency of the City of Clearwater, Florida (the "Agency") tentatively accepted the proposal of Developer, dated June 13, 2003, 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 not to exceed 146 residential condominiums, 15,000 square feet of retail, and approximately 326 parking spaces including 100 public parking spaces, known as Station Square in the community redevelopment area of the City; WHEREAS, the Agency proceeded with the preparation of a definitive development and disposition agreement to set forth the respective duties and responsibilities of the parties pertaining to the conveyance of the Station Square Parking Lot Site (as hereinafter defined), and the design, development, construction, completion, operation and maintenance of the Station Square 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 February 17, 2004 ("Interlocal Agreement"), providing for the cooperation and assistance of the City and the Agency in accomplishing the goals and objectives of this Agreement, including establishing certain other 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 February 17, 2004, the Agency approved this Agreement and authorized and directed its execution by the appropriate officials of the Agency; WHEREAS, the members (as that term is defined in the operating agreement of the Developer) of 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 III, 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 "E." (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 "F." (6) "Allowable Retail Uses" means a retail establishment that sells or leases goods Station Square Development 2-10-04 Draft ? directly to the consumer, such as a book store, gift shop, antique store, florist, clothing store, video store; an art gallery; a gourmet grocery store, which may include accessory sales of alcoholic beverages; and prepared food for off site consumption; a restaurant with accessory sales of alcoholic beverages; a sidewalk cafe as accessory to the principal retail use. (7) "Alternative Retail Uses" means tailor or seamstress; dry cleaners; financial institution; or business office - but not medical or veterinary office. (8) "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 Commission in Resolution No. 81-67, adopted by the City Commission on August 6, 1981 and as amended by Resolution No. 03-22, adopted by the City Commission on May 1, 2003. (9) "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. (10) "Building Permit" means, for all or any part of the Station Square Project to be constructed on the Project, any permit issued by the City authorizing, allowing and permitting the commencement, prosecution and completion of construction to the extent provided in said permit. (11) "Cassano Property" means that property immediately to the east of the Station Square Parking Lot Site, as described in Exhibit A-2, which property is controlled by the Developer. (12) "City" means the City of Clearwater, Florida, a Florida Municipal Corporation, and any successors or assigns thereto. (13) "City Commission" means the governing body of the City, by whatever name known or however constituted from time to time. (14) "Closing Date" means the date on which title to the Station Square Parking Lot Site is conveyed by the Agency to the Developer in accordance with and as contemplated by the provisions of Article 7 hereof. (15) "Commencement Date" means the date of issuance of the first Building Permit for any part of the Station Square Project. (16) "Completion Date" means the date on which construction of the Station Square Project is substantially complete as evidenced by a Completion Certificate. Station Square Development 2-10-04 Draft ':\ (17) "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. (18) "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 Station Square Project, or any portion thereof, on the Project Site, including, but not limited to, acquisition of the Station Square Parking Lot Site, financing costs, "soft costs," overhead, and the design, construction and equipping of the Station Square Project. (19) "Construction Lender" means any person or persons providing the Construction Financing or any portion thereof. (20) "Developer" means Station Square, LLC, a Florida limited liability company, and any successors and assigns thereof, including any entity, partnership, joint venture, or other person in which Station Square, LLC, is a general partner or principal, but not including any entity, partnership, joint venture, or other person in which Station Square, LLC is a general partner or principal which is not undertaking or participating in any development of the Station Square Project, or any part thereof. (21) "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. (22) "Exhibits" means those agreements, diagrams, drawings, specifications, instruments, forms of instruments, and other documents attached hereto and designated as exhibits to, and incorporated in and made a part of, this Agreement. (23) "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. (24) "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 Station Square Project. (25) "Infrastructure Improvements" means the improvements to Station Square Park and Cleveland Street, more particularly described in Exhibit G, be designed, constructed and installed by the Agency or caused to be designed, constructed and installed by the Station Square Development 2-10-04 Draft 4 Agency in substantial accordance with the Infrastructure Improvements Plans and Specifications. (26) "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. (27) "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 "H." (28) "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. (29) "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. (30) "Interlocal Agreement" means the interlocal agreement between the City and the Agency, dated as of February 17, 2004, 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, purchase of the public parking spaces within the Project Site, which agreement is further described in Section 2.05 hereof. (31) "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. (32) "Plan" means the community redevelopment plan for the Area, including the Project Site, as adopted by the City Commission on September 18, 2003, by enactment of its Ordinance No. 7153-03, and including any amendments to the Plan. (33) "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 Station Square Project, Station Square Development 2-10-04 Draft ~ but does not include the Developer. (34) "Project Site" means the tract of land located in the Area part of which is to be conveyed to the Developer by the CRA constituting the Station Square Parking Lot Site together with the Cassano Property as described in Exhibit A on which the Station Square Project will be located, as more particularly described and depicted on Exhibit "A." (35) "Proposal" means the proposal for redevelopment of the Project Site, dated June 13,2003, submitted by the Developer to the Agency in response to the RFP. (36) "Public Parking Condominiums" means the approximately 100 parking spaces contained within the Station Square Project to be owned by the CRA or the City. (37) "RFP" means the Request for Proposals initially published by the Agency on May 14, 2003, soliciting proposals from persons interested in redeveloping the Project Site in accordance with the Act and the Plan. (38) "Site Plan" means the depiction and description of the Station Square Project on the Project Site, the initial version of which is attached hereto as Exhibit "B." (39) "Station Square Project" or "Project" means the not more than 146 residential condominium units and appurtenant facilities, not more than 15,000 square foot allowable retail space, and approximately 326 parking spaces, approximately 100 of which will be public parking, to be located on the Project Site as contemplated by the Proposal and this Agreement and constructed substantially in accordance with the Station Square Plans and Specifications. (40) "Station Square Project Plans and Specifications" means the plans and specifications pertaining to the construction, installation and equipping of the Station Square Project, including the schedule for completing the Station Square Project. (41) "Station Square Parking Lot Site" means that part of the Project Site that is conveyed to the Developer by the Agency pursuant to the terms of Article 7 hereof. (42) "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. (43) "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 construed to include correlative words of the feminine and neuter genders. Unless the Station Square Development 2-10-04 Draft n 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 (1997), as amended from time to time. 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 Station Square Parking Lot Site to the Developer and the development and construction and operation of the Station Square Project thereon in accordance with the Station Square 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) (1) The Project Site is to be redeveloped according to Station Square Project Plans and Specifications for use as not more than 146 residential condominium units and 15,000 square feet of Allowable Retail Uses, together with approximately 326 parking spaces, 100 of which will be public parking. (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 Station Square 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 Station Square Parking Lot Site by purchasing the Station Square Parking Lot Site from the Agency, and assembling it with the Cassano Property, obtaining approvals by governmental authorities necessary for development of the Station Square Project, constructing various private improvements on the Project Site, and causing the Station Square Project to be developed as described herein. 2.02. Developer's Proposal. (a) The Proposal for the redevelopment of the Project Site, specifically including the acquisition of the Station Square Parking Lot Site by the Developer from the Agency and Station Square Development 2-10-04 Draft 7 the consolidation of that property with the Cassano Property 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 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 further 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 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. Authori7ed 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 Station Square Development 2-10-04 Draft R 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 relied upon by the other party. (c) The Developer does hereby notify the Agency that its initial Authorized Representative for the Project is Nick Pavonetti. (d) The Agency does hereby notify the Developer that its initial Authorized Representative is Ralph Stone, Executive Director. 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 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 and purchase of the public parking spaces. (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 Station Square Development 2-10-04 Draft <) any right to recover damages in any action brought by the Developer contemplated by this subsection (c) pertaining to the Interlocal agreement. 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 regarding the Station Square 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 terms 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, firm 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 AND RESTRICTIONS ON USE. 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 permit development of the Project on the Station Square Parking Lot Site. The parties further recognize and acknowledge that the City has in the Interlocal Agreement agreed not to rezone the Station Square Parking Lot Site so as to prevent subsequent development of the Project to the extent and for the uses currently contemplated. 3.02. Redevelopment Plan. The Agency represents to the Developer and the Developer acknowledges that as of the date of the RFP and the Proposal the provisions of the Plan pertaining to the Project Site were not consistent with the Station Square Project as contemplated by the Proposal. Station Square Development 2-10-04 Draft 10 The Agency represents and warrants to the Developer that it initiated actions necessary to amend the Plan to make it consistent with the Station Square Project contemplated by the Proposal and such amendment has been approved by the City Commission and the County Commission and the amendment to the Plan to make it consistent with the Station Square Project as contemplated by the Proposal went into effect prior to the Effective Date. 3.03. 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. 3.04. 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 Station Square Project, and shall bear all costs of preparing such applications, applying for and obtaining such permits including applicable application, inspection, regulatory and Impact Fees or charges pertaining to the Station Square Project, including, but not limited to, any such permit, review, application, inspection, regulatory or Impact Fees. The Agency agrees to reimburse Developer the cost of such applications, inspections, regulatory and impact fees up to $460,000. Such reimbursement shall be paid in two equal installments over two years commencing one year following the Completion Date of the Station Square Project. (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 Station Square 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. Station Square Development 2-10-04 Draft 11 (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. 3.05. 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 Station Square 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 Station Square 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. (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's concurrency management system, and does further agree to maintain such certificate 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. 3.06. 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. 3 07 Permitted Uses Station Square Development 2-10-04 Draft 11. (a) The Project shall consist of not less than 100 and not more than 146 residential condominium dwelling units and associated appurtenances such as parking spaces, swimming pool. (b) The project shall have approximately 326 parking spaces, 100 of which are public parking spaces. (c) The project shall contain approximately 15,000 square feet of Allowable Retail Uses on the first floor (d) The Developer shall actively market and use his best efforts to obtain tenants for the first floor retail space as one or more of the Allowable Retail Uses described above However, should the Developer be unable to obtain an allowable retail use within one year of issuance of the temporary Certificate of Occupancy for the retail space, the City may allow, upon written request of the Developer, one or more Alternative Retail Uses to occupy the first floor retail space. (e) The following uses are prohibited: 1. All uses prohibited by the Clearwater Downtown Redevelopment Plan; 2. All other retail uses not specifically defined herein as Allowable Retail Uses or Alternative Retail Uses, pursuant to the Community Development Code's definition of retail sales and services; 3. Nightclub or bar; 4. Alcoholic beverage package store; 5. Medical or veterinary offices; ARTICLE 4. STATION SQUARE 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 Station Square Project consistent with this agreement and the current zoning classification for the Station Square Parking Lot 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. (b) The Site Plan approved by the Agency shall be the basis for and incorporated into the Station Square Project Plans and Specifications. 4.02. Preparation of Station Square Project Plans and Specifications. (a) The Developer shall prepare the Station Square Project Plans and Specifications in sufficient detail and description of the Station Square Project, graphically and Station Square Development 2-10-04 Draft 11 narratively if requested, 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) (1) The Developer is responsible for the cost of preparing, submitting and obtaining approval of the Station Square Project Plans and Specifications (2) The Developer has retained and shall retain the Project Professionals to prepare the Station Square 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 with respect to the Station Square Project. The Developer shall cause the Project Professionals to prepare the Station Square Project Plans and Specifications. (c) (1) The Agency does hereby consent to the preparation of the Station Square Project Plans and Specifications, and any revisions thereto, by the Project Professionals, and the Agency will not withhold approval of the Station Square 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 has 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 Station Square Project Plans and Specifications with the Agency no later than six months following the Closing Date. The Agency and the Developer recognize and acknowledge the need for expedited review of the Station Square Project Plans and Specifications and approval by the Agency. (e) The Station Square 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 Station Square 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 Station Square Project Plans and Specifications with any review or approvals by the City or other governmental entities. 4.04. Agency Review of Station Square Project Plans and Specifications. (a) During the term of this Agreement, Agency review and approval of the Station Station Square Development 2-10-04 Draft 14 Square Project Plans and Specifications is a prerequisite for issuance of the initial Building Permit for construction of the Station Square Project, or any part thereof. In the discretion of the Agency's governing body, the Agency's review and approval of the Station Square Project Plans and Specifications may be delegated in whole or in part to an individual or group of individuals other than the governing body. (b) Upon the Developer submitting the Station Square Project Plans and Specifications to the Agency for review, the Agency agrees to diligently proceed with and complete its review of the Station Square Project Plans and Specifications and respond to the Developer as soon as reasonably possible after receipt thereof, but in no event later than fifteen (15) days after receipt of such Station Square Project Plans and Specifications, and advise the Developer in writing of the Agency's reasonable objections thereto or that the Station Square Project Plans and Specifications have been approved as submitted. (c) If the Agency gives written notice of specific objections to or deficiencies in the Station Square 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 Station Square 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 Station Square 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 are necessary for development of the Station Square Project. (e) If the Developer does not dispute the objections to any proposed Station Square Project Plans and Specifications contained in any notice from the Agency, it shall submit revised Station Square Project Plans and Specifications satisfying such objections. Any changes in the Station Square Project Plans and Specifications made by the Developer in response to such a notice shall be made without charge to the Agency. 4.05 Project Schedule. Prior to the Closing Date, Developer shall submit to the Agency a mutually agreed upon development schedule for the Station Square Project, including significant construction milestones. ARTICLE 5. INFRASTRUCTURE IMPROVEMENTS. 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 Station Square Development 2-10-04 Draft 1~ substantially complete in accordance with the Infrastructure Improvements Plans and Specifications no later than the Infrastructure Improvements Completion Date. The Agency agrees to coordinate the planning, design and construction and installation of the Infrastructure Improvements with the Station Square 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. The Agency shall be responsible for the preparation of the Infrastructure Improvements Plans and Specifications. During the preparation of the Infrastructure Improvements Plans and Specifications the Agency shall consult with the Developer and the Project Professionals and coordinate the planning, design, and construction of the Infrastructure Improvements with the Station Square Project. 5.03. Infrastructure Improvements Financing. (a) The cost of the Infrastructure Improvements shall be paid from funds legally available to the Agency. The Agency covenants and agrees with the Developer to have funds in sufficient amounts to pay the costs of the Infrastructure Improvements and to have such funds available when needed to pay such costs. (b) 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 property 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 Station Square Project, but in no event Station Square Development 2-10-04 Draft ln 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. It is the intent of the parties to this Agreement that construction of the Infrastructure Improvements will be substantially complete by the dates agreed to by the parties in the Infrastructure Schedule. (b) The Infrastructure Improvements and the Station Square 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, and deliver it to the Developer. Upon receipt of the certificate, the Developer shall determine if construction, installation and equipping of the Infrastructure Improvements have been so completed, and, if so, shall execute the certificate and return it to the Agency. (b) The Infrastructure Improvements Completion Certificate 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 part of the Infrastructure Improvements and the Station Square Project be coordinated with other parts of the Project and the design, construction, installation and equipping of the Infrastructure Improvements and the Station Square 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 Station Square Project. (2) The Developer designates Nick Pavonetti to coordinate the planning, construction, installation, equipping and completion of the Station Square Project with the Station Square Development 2-10-04 Draft 17 construction of the Infrastructure Improvements. ARTICLE 6. STATION SQUARE 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 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 development and construction of the Station Square Project and that such proceeds, together with its own funds or other funds available to it, shall be sufficient to pay the costs of acquiring the Station Square Parking Lot Site and the development, construction and completion of the Station Square 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 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 certified 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 Station Square Development 2-10-04 Draft lR 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 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 Station Square Parking Lot 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 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 Station Square Development 2-10-04 Draft 1<) 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 the Station Square Project 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 the Station Square 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 Station Square Project, but fails to complete such construction by the Completion Date (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 Station Square Parking Lot Site, or any part thereof, as a result of foreclosure proceedings or any other action in lieu thereof, including (I) any other party who thereafter obtains title to the Station Square Parking Lot 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 Station Square Project, 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 Station Square Parking Lot Site, or any part thereof, to devote the Station Square Parking Lot 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 Station Square Project Plans and Specifications, unless prior to commencement of such use, approval thereof is obtained from the Agency, which approval shall not be unreasonably withheld or delayed. Station Square Development 2-10-04 Draft 1.0 6.05. AgenC'.y Cures Developer's Default. If prior to the issuance of the Station Square Project Completion Certificate, 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 Station Square Parking Lot 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 Station Square Parking Lot 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 Station Square Parking Lot Site in favor of the Construction Lender. ARTICLE 7. STATION SQUARE PARKING LOT SITE CONVEYANCE. 7.01. Findings; Representations. (a) The Agency is the owner of 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-1" attached hereto and made a part hereof. (the "Station Square Parking Lot Site"). (b) Developer desires to purchase the Station Square Parking Lot Site from Agency. (c) Agency desires to selland convey the Station Square Parking Lot Site to Developer. (d) Agency desires to purchase approximately 100 parking spaces in the Station Square Parking Project garage from the developer. (e) Developer desires to sell and convey 100 parking spaces in the Station Square Parking Project to the Agency. 7 .02. Agreement to Sell and Purchase. The Agency hereby agrees to sell and convey the Station Square Parking Lot Site to Developer, Developer hereby agrees to purchase the Station Square Parking Lot Site from Agency and to sell and convey 100 parking spaces in the parking garage to the Agency, upon the terms and conditions hereinafter in this Article 7. 7.03. Purchase Price. Station Square Development 2-10-04 Draft 7.1 The purchase price of the Station Square Parking Lot Site is SEVEN HUNDRED TWENTY THOUSAND DOLLARS ($720,000.00). The amount to be paid by the Developer to the Agency in consideration of the conveyance of the Station Square Parking Lot Site 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 Station Square Parking Lot 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. Developer will restore any disturbance to the Station Square Parking Lot 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 on or before March 1, 2004 (which the parties acknowledge to be the anticipated Closing Date), to review and examine the Station Square Parking Lot 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 Station Square Parking Lot Site or the contemplated development or construction thereon is not economically or otherwise acceptable to Developer. Developer may terminate this Agreement as provided in Section 13.05 hereof. 7.05. Iitla. (a) Within five (5) days after the Effective Date, the Agency shall furnish to Developer, at Agency's expense, a commitment for the issuance of an owner's policy of title insurance for the Station Square Parking Lot Site by Commonwealth Land Title Insurance Company, through its Agent, David E. Platte, in the standard form adopted by the American Land Title Association, at no more than the promulgated rate. This commitment shall be in the amount of the total Purchase Price of the Station Square Parking Lot Site, shall show in Agency a good and merchantable 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" . (b) If the Title Commitment, any update thereof or subsequent title commitment or the Station Square Development 2-10-04 Draft ?? survey delivered to Developer in connection with the Station Square Parking Lot Site shows that the title is defective or unmerchantable or that any part of the Station Square Parking Lot Site 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 termination 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 AL TA Marketability Form B-1970 (Rev. 10/17/70 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, as the case may be, to the Station Square Parking Lot 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 Station Square Parking Lot Site. (d) Prior to closing of the transfer of the Station Square Park site from Agency to Developer, Agency and City shall enter into a restrictive covenant by which the Agency (or the City, if appropriate) agrees that it shall never construct any permanent structures within the area described in Exhibit K, so as to allow the Developer to maximize the number of openings contained in the Station Square Project, pursuant to existing building codes. 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 Station Square Parking Lot Site, which survey shall be delivered and certifiedJo Developer, its construction lender and its title insurance company on or before closing date. (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 Station Square Parking Lot Site. (ii) Set forth an accurate metes and bounds description of the Station Square Parking Lot Site, the gross number of acres contained in the Station Square Parking Lot Site. Station Square Development 2-10-04 Draft ?1 (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 Station Square Parking Lot Site from adjoining property and any encroachments from the Station Square Parking Lot Site onto adjoining property. (v) Show all existing improvements (such as buildings, power lines, fences, roads, driveways, railroads, underground pipelines, cables, etc.) and all rivers, creeks drainage ditches or other water courses. (vi) Show all dedicated public streets providing access to the Station Square Parking Lot Site and whether such access is paved to the property line of the Station Square Parking Lot 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 Station Square Parking Lot Site. (viii) Show all applicable set back lines with reference to the source of the set backs. In the event the survey shows any encroachments of any improvement upon, from or onto the Station Square Parking Lot Site or shows any other matter of survey which is objectionable to Developer, in Developer's sole discretion, then Developer shall provide Agency with notice of such defect and the same shall be deemed a title defect and shall be treated as an objection to title by Developer as provided under Section 7 .05(b). 7.07. Rights and Duties of Agency. (a) Agency shall cooperate in good faith with Developer in Developer's evaluation of the Station Square Parking Lot Site and shall execute all documents or perform such other acts, reasonably necessary to enable Developer to satisfactorily complete its evaluation of the Station Square Parking Lot 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 commence and pursue its evaluation of the Station Square Station Square Development 2-10-04 Draft ?4 Parking Lot 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). 7.09. Agency'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 Station Square Parking Lot Site. Payment of the entire Purchase Price shall be made by the Developer's execution and delivery of a promissory note and mortgage to the Agency in the amount of the full Purchase Price. The promissory note and Mortgage shall be subject to the approval of the Agency, such approval shall not be unreasonably withheld. Said note and mortgage shall bear interest at the rate of 4% per annum, with all principal and interest being due in full at the time the Developer shall obtain and close an acquisition and/or construction loan from a lender obligated to loan Developer all funds necessary for the acquisition, development and construction of the Station Square Project. 7.10. Conditions to Closing. (1) The obligation of Developer to purchase the Station Square Parking Lot Site is subject to the following unless waived by the Developer on or before the Closing Date: (2) 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; (3) Developer shall have received its Site Plan approval of the Station Square Project. (4) The Station Square Project shall be in compliance with the zoning, land use and concurrency requirements for the Station Square Project. (5) The obligation of the Agency to convey the Station Square Parking Lot Site to the Developer is subject to the following unless waived by the Agency on or before the Closing Date: (a) 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; (b) The Developer is not then in default of this Agreement as provided in Section 13.01. (c) The Agency shall have approved the Station Square Project development Station Square Development 2-10-04 Draft ?5 schedule and Specifications. (d) The City shall have approved the Site Plan for the Station Square Project. (e) The parties shall have agreed to the construction schedule and milestones for development of the Station Square Project and the Infrastructure Improvements and arrangements for coordination of the construction thereof. 7.11. Closing. Provided all conditions to conveyance of the Station Square Parking Lot Site to the Developer have been satisfied, Developer shall purchase the Station Square Parking Lot Site on or before April 1, 2004 (herein referred to as the "Closing Date"). The parties may mutually agree to change the Closing Date. 7.12. Closing 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 to the Station Square Parking Lot Site, free and clear 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 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 Station Square Parking Lot Site as provided herein, all at Agency's expense. (c) Developer shall pay the Purchase Price for the Station Square Parking Lot Site to Agency as provided in Section 7.09. (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 Station Square Parking Lot Site prior to the Closing Date. (f) Agency has terminated all original leases, if any, for the Station Square Parking Lot Site or any part thereof and all tenants will have vacated the Station Square Parking Lot Site by the Closing Date. (g) Agency shall deliver to Developer all original documents pertaining to the Station Station Square Development 2-10-04 Draft ?n Square Parking Lot Site 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. (i) Closing shall be conducted at the law offices of David Platte, Esq., 603 Indian Rocks Road, Belleair, FL 33756, or elsewhere by mutual agreement. 7.13. Possession. Possession of the Station Square Parking Lot Site shall pass to Developer upon completion of the Closing. Developer agrees to allow Agency to continue use of the Station Square Parking Lot Site as a public parking lot until such time as the Site is needed for construction. Agency will vacate the property and remove the meters and wheel stops 15 days after notice is received. All revenues generated by the public parking lot shall be retained by the Agency. 7.14. Condition of Title. Title to the Station Square Parking Lot Site 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) Real estate taxes for 2004 and subsequent years that are a lien but not yet due and payable. (b) Comprehensive land use planning, zoning and building ordinances, regulations and requirements adopted by governmental or municipal authority having jurisdiction. (c) 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 Station Square Parking Lot Site prior to the Closing Date promptly when due. All special assessments applicable to any portion of the Station Square Parking Lot 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. Station Square Development 2-10-04 Draft 7.7 7.16. Covenants, Warranties and Representations. Agency hereby covenants, warrants and represents to Developer that: (a) The title of Agency to the Station Square Parking Lot Site hereby sold is absolute, good and merchantable 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 Station Square Parking Lot 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 Station Square Parking Lot Site or which give or will give rise to any claims or liens against the Station Square Parking Lot Site or affect Agency's right to transfer the Station Square Parking Lot 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 Station Square Parking Lot Site and no materials have been furnished to Agency or the Station Square Parking Lot 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. (f) No assessment for public improvements or otherwise have been made against the Station Square Parking Lot 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 Station Square Parking Lot Site which would prevent, limit, impede or make more costly the present or proposed use of the Station Square Parking Lot Site, provided, however, the City is in the process of adopting amendments to the land development code, but, if adopted, it will not adversely affect the proposed use or contemplated development of the Station Square Parking Lot Site. (h) From and after the date hereof, Agency shall refrain from (1) making any material Station Square Development 2-10-04 Draft ?~ changes on or about the Station Square Parking Lot 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 Station Square Parking Lot Site; or (3) committing any waste or nuisance on the Station Square Parking Lot 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 Station Square Parking Lot Site, including easements or rights of way, to any person, corporation (public or private), governmental body or political subdivision without the written permission of Developer. U) (1) Compliance with Environmental Law. Agency has: (i) materially complied with all applicable Environmental Law; and (ii) not received any notice of alleged outstanding violation of Environmental Law, nor does Agency have knowledge of any facts or circumstances that could constitute such a violation. To the best of Agency's knowledge, there are no Hazardous Substances on, above, within, underneath or in groundwater underlying the Property which exceed applicable standards under any Environmental Law. (2) Definitions. For purposes of this Article 7, the terms in this paragraph (2) 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. 99601, 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, including but not limited to (i) hazardous wastes as identified pursuant to the Resource Conversation and Recovery Act, 42 U.S.C. 96901, 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" means 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 any adverse fact relating to the physical condition of Station Square Development 2-10-04 Draft J.q the Station Square Parking Lot Site or any portion thereof which has not been specifically disclosed in writing to Developer, including without limitation landfills, hazardous wastes, fault lines, sinkholes or other geological conditions or adverse soil conditions. (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 Station Square Parking Lot 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 Station Square Parking Lot Site. (m) There are no facts known to Agency materially affecting the value of the Station Square Parking Lot 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 Station Square Parking Lot Site according to the current and applicable zoning ordinances and the applicable land use plan is satisfactory for the utilization of the site for retail and residential development 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 Station Square Parking Lot Site. (0) The Station Square Parking Lot Site is not included in any national, state, county or municipal historic registry or similar classification, nor does the Station Square Parking Lot 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 is subject. No further approvals or consents by third parties or governmental bodies are required in order for the Agency to enter into this Agreement and consummate the transactions contemplated hereby. (q) The covenants, representations and warranties of the Agency 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 Station Square Parking Lot Site or any rights or easements therein shall be taken by condemnation or rights of Station Square Development 2-10-04 Draft ':\0 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 Station Square Parking Lot 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 Station Square Parking Lot Site, (b) delete the portion of the Station Square Parking Lot 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 Station Square Parking Lot 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 Station Square Parking Lot Site. Through Closing during its continued position pursuant to FS 97.13, the Agency shall maintain the Station Square Parking Lot Site in good order and shall carry reasonable amounts of physical damage and liability insurance on the Station Square Parking Lot Site and any improvements thereon existing as of the date hereof. 7.20. Radon Gas Notice. (a) As required by Section 404.056(6), Florida Statutes, the following notice is hereby given to the Developer as the prospective purchaser of the Station Square Parking Lot 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 regarding radon and radon testing may be obtained from your county public health unit." (b) To exercise its indemnification rights hereunder, Developer shall promptly notify Agency of any such claim in respect of which indemnity is sought hereunder. Any such notice shall be given in good faith, be reasonably specific and shall set forth in Station Square Development 2~10-04 Draft 11 reasonable detail, if available, the nature of the alleged loss, claim, expense or liability or the action or proceeding. A Developer Indemnified Party shall advise Agency of all material facts relating to such assertion within the direct and actual knowledge of a Developer Indemnified Party and, in the event of a third party claim or action, shall afford Agency the opportunity, at Agency's sole cost and expense, to defend against such claims, actions or proceedings. In any such claim, a Developer Indemnified Party shall have the right to retain its own counsel, and the fees and expenses of such counsel shall be at Agency's expense unless the Agency and the Developer Indemnified Party mutually agree otherwise in writing. (c) A Developer Indemnified Party shall have no right to settle or compromise any claims subject to indemnification hereunder if Agency notifies Developer that Agency intends to defend against such claim and undertakes such defense immediately after receiving notice of such claim and continues such defense throughout the pendency of such claim. If Agency fails to undertake such defense or continue such defense as aforesaid, then, in such event, the Developer Indemnified Party may undertake to settle or compromise any claim upon such terms and conditions as the Developer Indemnified Party deems necessary or appropriate. All amounts incurred by the Developer Indemnified Party in connection with the settlement or compromise of such claim shall be indemnified by the Agency hereunder. Except as provided above, Agency shall not be liable for any settlement effected without Agency's consent of any claim for which indemnity may be sought hereunder. 7.21 Purchase of Parking Spaces by Agency a. The Agency hereby agrees to purchase or cause the City of Clearwater to purchase from Developer 100 parking spaces in the to-be-constructed parking garage as part of the Station Square Project, upon the terms and conditions herein set forth in this section 7.21. (Said 100 parking spaces shall hereinafter be referred to as the "Public Parking Condominiums"). It is contemplated by the parties hereto that the Public Parking Condominiums will consist of 100 public parking spaces located on the first and second levels of the to-be-constructed parking garage. Each of said first and second levels of the parking garage shall constitute a separate Parking Condominium Unit; provided, however, any space located on the first or second level of the parking garage in excess of the 100 parking spaces comprising the Public Parking Condominiums to be transferred to Agency shall be common elements or limited common elements of the Station Square Condominiums. b. The purchase price of the Public Parking Condominiums shall be One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00). The amount to be paid by Agency to the Developer in consideration of the conveyance of the Public Parking Condominiums to Agency is hereinafter referred to as the "Public Parking Condominiums Purchase Price". Upon the filing and recording of the contemplated Declaration of Condominium for Station Square Condominiums, as required by Florida Station Square Development 2-10-04 Draft 11. law, the Developer and Agency shall execute a purchase and sale agreement in the form attached to the contemplated Declaration of Condominium and consistent with the purchase and sale agreement to be executed by all other purchasers of Condominium Units in the Station Square Project, provided, however, any conflict between the terms of the purchase and sale agreement and this Agreement shall be controlled by this Agreement. c. The Agency shall have the right to review and approve the construction plans and specifications for the Public Parking Condominiums. Such approval may not be unreasonably withheld. The Agency may, at its own expense, provide for owner's representation during construction of the Public Parking Condominiums. d. Title. (i) Within the time limit set forth in the purchase and sale agreement to be executed by Developer and Agency, the Developer shall furnish to Agency, at Developer's expense, a commitment for the issuance of an owners policy of title insurance for the Public Parking Condominiums by Commonwealth Land Title Insurance Company in the standard form adopted by the American Land Title Association. This commitment shall be in the amount of the total Public Parking Condominiums Purchase Price, shall show in the Developer a good and merchantable title in fee simple, free and clear of all liens and encumbrances without exception, other than those permitted under the provisions of subsection h. of this section 7.21 (the "Permitted Exceptions") in a form reasonably acceptable to Agency and shall be referred to as the "Title Commitment". (ii) If the Title Commitment, any update thereof or subsequent title commitment delivered to Agency in connection with the Public Parking Condominiums, shows that the title is defective or unmerchantable or that any part of the Condominiums is subject to liens, restrictions, easements, encroachments or encumbrances of any nature whatsoever, other than those permitted under the provisions of subsection h. hereof, or those which will be satisfied at closing, Agency shall give Developer a reasonable time (not to exceed sixty [60] days after Agency has given written notice to Developer of any unacceptable conditions of title) within which to remedy or remove any such unacceptable conditions of title. Failure of Developer to remedy or remove any such unacceptable condition of title shall constitute grounds for termination as provided in section 13.5, unless Agency gives Developer its written waiver of such unacceptable condition of title. (iii) Within thirty (30) days of closing, Developer shall furnish to Agency, a standard AL TA marketability form 8-1970 (rev. Station Square Development 2-10-04 Draft 11 10/17/70 and rev. 10/17/84) owners 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 Public Parking Condominiums Purchase Price and will insure Agency's fee simple title to the Public Parking Condominiums subject to no exceptions other than the exceptions permitted pursuant to subsection h. of this section 7.21. e. Developer's Obligation to Convey. At such time as Developer has received payment in full of the Public Parking Condominiums Purchase Price in cash equivalent or certified funds, Developer shall immediately convey to Agency the Public Parking Condominiums. f. Conditions to Closing. (i) The obligation of Agency to purchase the Public Parking Condominiums is subject to the following, unless waived by Agency on or before the Closing Date: (1) The representations and warranties of Developer 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 Declaration of Condominium and attendant documents do not restrict or interfere with the reasonable operation of the Public Parking. (3) The contemplated Declaration of Condominium and all attendant documents thereto have been approved by the appropriate State of Florida departments, divisions and agencies and the Declaration of Condominium has been properly filed and recorded in the Public Records of Pinellas County, Florida. !4) The Agency shall have the right to approve the Declaration of Condominium and attendant documents. Such approval shall not be unreasonably withheld. Under no circumstances shall the Agency be responsible for maintenance costs of such elements as the swimming pool, air conditioning or amenities unrelated to the parking. (5) A Certificate of Occupancy or the equivalent thereof has been issued for the Public Parking Condominiums by the Station Square Development 2-10-04 Draft 14 appropriate governmental authority. (6) The Developer is not then in default of this Agreement in any fashion. (ii) The obligation of Developer to convey the Public Parking Condominiums to the Agency 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 in this Agreement 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 Agency is not then in default of this Agreement in any fashion. (3) A Certificate of Occupancy or the equivalent thereof has been issued for the Public Parking Condominiums by the appropriate governmental authority. g. Closing. Provided all conditions to conveyance of the Public Parking Condominiums to Agency have been satisfied, Agency shall Purchase the Public Parking Condominiums on or before thirty (30) days after issuance of a Certificate of Occupancy or the equivalent thereof (hereinafter referred to as the "Closing Date"). h. Closing Procedure. (i) At closing, the Developer shall deliver to Agency by special warranty deed, in the form attached hereto as Exhibit "C", title and fee simple title to the Public Parking Condominiums, free and clear of all liens, encumbrances, conditions, easements, assessments, restrictions, except those permitted in this Agreement and the Permitted Exceptions. (ii) At closing, the Developer shall deliver any endorsements to the title insurance commitment required herein and such further instruments as may be required by Agency, Agency's counselor the title company to vest in the Agency, title to the Public Parking Condominiums, as provided herein, all at Developer's expense. (iii) Agency shall pay the Public Parking Condominium Purchase Price for the Public Parking Condominiums to Developer in immediately available funds acceptable to Developer. Station Square Development 2-10-04 Draft 1~ (iv) Ad Valorem real estate taxes and any personal property taxes shall be pro rated as of the Closing Date, based on application of the preceding year's rates to the latest assessed valuation or statements issued to Developer for the current year's assessment, if available, subject to re- proration when the actual tax bill is issued for the year of closing. (v) Developer shall pay all special assessments and taxes, interest and penalties levied against the Public Parking Condominiums, prior to the Closing Date. (vi) Developer shall deliver to Agency all pertinent Condominium Documents pertaining to the Public Parking Condominiums. (vii) Developer 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 fees, the premiums for the owners title insurance policy, and for the recording of the deed. (viii) Closing shall be conducted at the law offices of David E. Platte, or elsewhere by mutual agreement. i. Condition of Title. Title to the Public Parking Condominiums at the time of conveyance shall be free of all liens, restrictions, easements and encroachments and encumbrances of any nature whatsoever except the following (the "Permitted Exceptions"): (i) Real estate taxes for the year of closing and subsequent years that are a lien but not yet due and payable. (ii) Comprehensive land use planning, zoning and building ordinances, regulations and requirement adopted by governmental or municipal authority having jurisdiction. (iii) The recorded Declaration of Condominium and all other appropriate condominium documents. (iv) Those additional exceptions as contained in the Title Commitment to be delivered by the Developer to Agency at closing which Agency, in its sole and absolute discretion, has elected to accept. j. Possession. Possession of the Public Parking Condominiums shall pass to Agency upon completion of a closing. Station Square Development 2-10-04 Draft ~n k. Taxes and Assessments. The Developer agrees to pay all taxes and assessments that become a lien on the Public Parking Condominiums prior to the Closing Date promptly when due. All special assessments applicable to any portion of the Public Parking Condominiums, delinquent taxes and delinquent installment of special assessments, together with any penalties and interest thereon, shall be paid by the Developer on or before the Closing Date. I. Covenants, Warranties and Representations. Developer hereby covenants, warrants and represents to Agency that: (i) The title of Developer to the Public Parking Condominiums to be sold hereby will be absolute, good and merchantable and free and clear of all liens and encumbrances except for the Permitted Exceptions. (ii) Developerwill have the full legal power to own and convey the Public Parking Condominiums as provided for herein, without any consent or proceeding required from any other person, entity or other organization. (iii) There are no legal proceedings pending, threatened or contemplated against Developer in any court, tribunal or administrative Developer which affects the Public Parking Condominiums or which give or will give rise to any claims or liens against the Public Parking Condominiums or affect Developer's right to transfer the Public Parking Condominiums. (iv) 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 Developer, other than leases disclosed to Agency and which have been terminated and will be vacated prior to the Closing Date. (v) There are no covenants, restrictions, or limitations which would limit the use of the Public Public Parking Condominiums for use as public parking, paid or otherwise. (vi) No work has been performed or is in progress on or at the Parking Condominiums and no materials have been furnished to Developer or the Public Parking Condominiums or any portion thereof which after closing could give rise to any mechanics', materialmen, or other liens, and at the Closing, Developer shall furnish to Agency an affidavit attesting to the absence of any such liens or rights to liens. Station Square Development 2-10-04 Draft ~7 (vii) No assessment for public improvements or otherwise have been made against the Public Parking Condominiums 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. (viii) Developer 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 Parking Condominiums which would prevent, limit, impede or make more costly the present or proposed use of the Public Parking Condominiums. (ix) From and after the date hereof, and at any time prior to transfer of title to Agency, Developer shall not grant, sell or convey any interest in the Public Parking Condominiums, including easements or rights of way, to any person, corporation (public or private), governmental body or political subdivision without the written permission of Agency. (x) (1) Compliance with Environmental Law. Developer has: (i) to the best of Developer's knowledge, materially complied with all applicable Environmental Law; and (ii) not received any notice of alleged outstanding violation of Environmental Law, nor does Developer have knowledge of any facts or circumstances that could constitute such a violation. To the best of Developer's knowledge, there are no Hazardous Substances on, above, within, underneath or in groundwater underlying the Property which exceed applicable standards under any Environmental Law. (2) Definitions. For purposes of this Article 7, the terms in this paragraph shall have the following meanings: (a) "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. ~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, including but not limited to (i) hazardous wastes as identified pursuant to the Resource Conversation and Recovery Act, 42 Station Square Development 2-10-04 Draft ~R U.S.C. 96901, 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. (b) "Environmental Law" means 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. (xi) Developer has no knowledge of any adverse fact relating to the physical condition of the Public Parking Condominiums or any portion thereof which has not been specifically disclosed in writing to Agency, including without limitation landfills, hazardous wastes, fault lines, sinkholes or other geological conditions or adverse soil conditions. (xii) Developer 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 Public Parking Condominiums which would impose an obligation upon Agency 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 Public Parking Condominiums. (xiii) There are no facts known to Developer materially affecting the value of the Public Parking Condominiums which are not readily observable by Agency or which have not been disclosed to Agency. (xiv) Present zoning and land use classification of the Public Parking Condominiums according to the current and applicable zoning ordinances and the applicable land use plan is satisfactory for the utilization of the site for public parking as contemplated by this Agreement. There are no proceedings to change such zoning or land use classifications or the conditions applicable thereto. There Station Square Development 2-10-04 Draft 1q exists no violation of any requirement or condition to such zoning or land use classifications, which is applicable to the Public Parking Condominiums. (xv) The Public Parking Condominiums are not included in any national, state, county or municipal historic registry or similar classification, nor do the Public Parking Condominiums include any historical or archeological artifacts. (xvi) The Developer 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 Developer is subject. No further approvals or consents by third parties or governmental bodies are required in order for the Developer to enter into this Agreement and consummate the transactions contemplated hereby. (xvii) The covenants, representations and warranties of the Developer as contained herein shall be true and correct as of the Closing and shall survive the Closing of this transaction. m. Condemnation. In the event that prior to the Closing Date, all or any portion of the Public Parking Condominiums 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 Agency's reasonable opinion, would have a materially adverse impact upon Agency's use of the Public Parking Condominiums, Agency shall, within fifteen (15) days after having received notice thereof from Developer, elect in writing to either (a) continue this Agreement in full force and effect, notwithstanding such taking or threatened taking, in which case Agency shall be required to continue the purchase of the Public Parking Condominiums, (b) delete the portion of the Public Parking Condominiums condemned or threatened to be condemned from this Agreement, with a proportionate reduction in the Purchase Price, or (c) terminate this Agreement. n. Real Estate Commission. Developer and Agency represent that they have not used any brokerage services with respect to the conveyance of the Public Parking Condominiums to Agency as herein contemplated. The Developer and Agency 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 Station Square Development 2-10-04 Draft 40 contemplated herein. o. Maintenance of Public Parking Condominiums. Through Closing, the Developer shall maintain the Public Parking Condominiums in good order and shall carry reasonable amounts of physical damage and liability insurance on the Public Parking Condominiums and any improvements thereon existing as of the date hereof. p. Radon Gas Notice. (i) As required by Section 404.056(6), Florida Statutes, the following notice is hereby given to the Agency as the prospective purchaser of the Public Parking Condominiums, which may have buildings located thereon, and the Agency 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 regarding radon and radon testing may be obtained from your county public health unit." (ii) To exercise its indemnification rights hereunder, Agency shall promptly notify Developer of any such claim in respect of which indemnity is sought hereunder. 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, expense or liability or the action or proceeding. An Agency Indemnified Party shall advise Developer of all material facts relating to such assertion within the direct and actual knowledge of an Agency Indemnified Party and, in the event of a third party claim or action, shall afford Developer the opportunity, at Developer's sole cost and expense, to defend against such claims, actions or proceedings. In any such claim, an Agency Indemnified Party shall have the right to retain its own counsel, and the fees and expenses of such counsel shall be at Developer's expense unless the Developer and the Agency Indemnified Party mutually agree otherwise in writing. (iii) An Agency Indemnified Party shall have no right to settle or compromise any claims subject to indemnification hereunder if Station Square Development 2-10-04 Draft 41 Developer notifies Agency that Developer intends to defend against such claim and undertakes such defense immediately after receiving notice of such claim and continues such defense throughout the pendency of such claim. If Developer fails to undertake such defense or continue such defense as aforesaid, then, in such event, the Agency Indemnified Party may undertake to settle or compromise any claim upon such terms and conditions as the Agency Indemnified Party deems necessary or appropriate. All amounts incurred by the Agency Indemnified Party in connection with the settlement or compromise of such claim shall be indemnified by the Developer hereunder. Except as provided above, Developer shall not be liable for any settlement effected without Developer's consent of any claim for which indemnity may be sought hereunder. ARTICLE 8. CONSTRUCTION OF THE STATION SQUARE PROJECT. 8.01. Site Clearance. The Developer shall be responsible for clearance of the Station Square Parking Lot Site such that it is in a condition ready for development to commence as of the Commencement Date. Permits issued by the City for pre-construction activities on the Station Square Parking Lot Site, including site clearance, shall not be considered a Building Permit for purposes of this Agreement. 8.02. Construction of the Project. (a) (1) The Developer shall construct the Station Square Project on the Station Square Parking Lot Site substantially in accordance with the Station Square Project Plans and Specifications therefor. Subject to Unavoidable Delay and the terms and conditions in this Agreement, the Developer shall commence construction of the Station Square Project within two hundred forty (240) days of the Closing Date. (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 Station Square Project. (3) If for any reason, including Unavoidable Delay, the Developer does not commence construction of the Station Square Project on or before the two hundred fortieth (240th) 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 Station Square Development 2-10-04 Draft 4? 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 the Station Square 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 Station Square Parking Lot Site. For purposes of this subsection (b), "abandoned" means to have ceased any construction work, which effectively advances the construction of that Phase toward completion, including all or substantially all the construction work force withdrawing from the Station Square Parking Lot Site. (2) All obligations of the Developer with respect to commencement, continuation and completion of construction of the Station Square 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 Station Square 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 the retail space of the Station Square Project, a certificate of occupancy for the shell of any structure (not including any tenant improvements for the retail space) has been issued by the City; or for the residential and garage areas, the issuance of a Certificate of Occupancy for each residential condominium unit and the garage. (d) (1) 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, the Developer shall make quarterly 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 the Station Square Project. 2) If the Agency believes adequate progress in the construction of the Station Square Project is not being made, the Agency shall give notice to the Developer that adequate progress is apparently not being made in the Station Square Project and to respond within ten (10) business days thereafter as to why adequate progress is or is not being made toward completion of the Station Square Project. (e) (1) The Developer agrees that each contract between the Developer and a Contractor for the Station Square 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 Station Square Development 2-10-04 Draft 41 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 Station Square 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 cure such default. 8.03. Maintenance and Repairs. During the construction of the Station Square Project, the Developer shall, at its own expense, keep the Station Square 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. Station Square Project Alterations or Improvements. During the construction of the Station Square Project, the Developer may, from time to time, make alterations and improvements, structural or otherwise, to the Station Square Project as the Developer deems desirable and consistent with the Station Square 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 Station Square Project Plans and Specifications, the Developer shall notify the Agency of such material change and may submit a change, amendment or revision to the Station Square 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 the Station Square 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, which shall then be delivered to the Agency. Upon receipt of the certificate the Agency shall promptly Station Square Development 2-10-04 Draft 44 and diligently proceed to determine if construction has been completed substantially in accordance with the Station Square 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 the last of the 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 Station Square Project; 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. (3) The parties agree that it is their intent that the review by the Agency for purposes of the Completion Certificate 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 Station Square Project has been substantially completed in accordance with the Station Square Project Plans and Specifications, the issuance of a certificate of occupancy 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) 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 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. Agencqt 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 the Project. Station Square Development 2-10-04 Draft 4~ 8.07. Repurchase of the Site Property. (a) In the event Developer shall not have commenced construction of the Station Square Project within twelve months following the Closing Date, then in such event, Agency shall have an option to purchase the Property upon the terms and conditions as set forth in this Section 8.07 (the "Property Option"). The Property Option shall be exercised by Agency within ninety (90) days following the expiration of the twelve month period following the Closing Date. The Property Option shall be exercised by Agency providing written notice to Developer of its intent to exercise the 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 Property Option within said ninety (90) day period, then the Property Option shall immediately and automatically lapse. (b) Upon proper and timely exercise of the Property Option, Agency and Developer shall undertake to close the conveyance of the Property by Developer to Agency within sixty (60) days following the date of notice of the exercise of the Property Option upon the following terms and conditions: (1) The price to be paid by Agency to Developer for the Station Square Parking Lot Site Property shall equal Seven Hundred Twenty Thousand ($720,000.00) Dollars. (2) The Property shall be conveyed by Developer to Agency pursuant to a special warranty deed, which deed shall be subject to taxes for the year of Closing and the other Permitted Exceptions to which the Property was subject on the Closing Date. (3) Developer shall pay for the cost of any documentary stamp taxes imposed upon the deed conveying the Property from Developer to Agency. In addition, Developer 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 Property or the expiration of the twelve month 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 Property, the Developer covenants and agrees with the Agency not to cause any mortgage or lien to be levied, assessed or placed on the Property with respect to any financing of Developer's construction of the Station Square Project or other corporate financings of any type without the prior consent of the Agency. (d) Upon conveyance of the Property to the Agency pursuant to the exercise of its option to repurchase the Property, this Agreement shall terminate as provided in Section 13.05. (e) This option to repurchase the Property shall survive a termination of this Station Square Development 2-10-04 Draft 4n Agreement by the Developer pursuant to Section 13.05. 8 08 Staging Areas for Construction The Agency agrees to make Station Square Park available as a construction staging area upon commencement of construction of the Station Square Project. Developer agrees to pay for boxing of existing live oak trees to be saved in Station Square Park. The Agency will obtain a license agreement from the City for the benefit of Developer for the length of the construction period, but not to exceed 24 months. 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 Station Square 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. (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 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) (1) 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 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. Station Square Development 2-10-04 Draft 47 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 1 O.INDEMNIFICA 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 performance of such services. (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 Agency. (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 Station Square Development 2-10-04 Draft 4R services. (b) The Agency shall indemnify, defend and hold harmless the Developer, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the Agency, as the case may be, of any covenants, representations or warranties contained in Section 3.02, Section 3.05, Section 7.16 or Section 12.01, or covenants contained in Section 12.02. (c) 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. 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), 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 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. REPRESENTATIONS, WARRANTIES 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 Limited Liability Company duly organized and validly Station Square Development 2-10-04 Draft 4<) 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. (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 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 form 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. (f) All financial information and other documentation, including that pertaining to the Station Square Development 2-10-04 Draft ~o Station Square 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 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 financial 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 Station Square Parking Lot 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 Station Square Project and, oversee and manage the design, planning, construction, and completion of the Station Square Project, and to acquire the Station Square Parking Lot Site as provided herein. 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 Station Square Project by the Developer in accordance with this Agreement, and the Station Square 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. (e) Subsequent to the Effective Date, the Developer shall maintain its financial capability to develop, construct and complete the Station Square Project and shall Station Square Development 2-10-04 Draft ~1 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 Station Square Project as contemplated hereby. (f) The Developer shall promptly cause to be filed when due all federal, state, local and foreign tax returns required to be filed by it, and shall promptly pay when due any tax required thereby so as to avoid an uncured tax lien against the Station Square Parking Lot Site. (g) Subject to and except as permitted 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 Station Square Parking Lot Site after the Closing Date necessary for construction of the Station Square Project to commence and continue, the Developer shall not permit, commit, or suffer any waste or impairment of the Station Square Parking Lot 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 the Station Square Project such that it is substantially complete as provided in this Agreement no later than the Completion Date. 11.03 Covenant: Nondiscrimination. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the marketing, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or Station Square Development 2-10-04 Draft ~? occupancy of tenants, lessees, subtenants, sub lessees or vendees of the Site. 11 04 Survival The representations, warranties and covenants of Developer as contained in Section 11.01 and 11.02hereof shall survive the conveyance of the Station Square Parking Lot Site to the Developer by the Agency. The representations, warranties and covenants of Developer as contained in Section 11.03 hereof shall survive the conveyance of the Station Square Parking Lot Site to the Developer by the Agency and Termination or Expiration. ARTICLE 12. REPRESENTATIONS, WARRANTIES AND COVENANTS 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 carry on 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 Station Square Development 2-10-04 Draft ~1 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 aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Agency. (e) The Interlocal Agreement is a valid and binding obligation of the Agency and the City. (f) Section 768.28, Florida Statutes, is the only statutory limitation on the Agency's indemnification obligations under this Agreement, and furthermore the Agency's indemnity obligations hereunder are not restricted by anything in its bylaws or in Part III, Chapter 163, Florida Statutes. 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 performed 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 Station Square Project in accordance with this Agreement and the Station Square 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 Station Square Parking Lot Site, or any part thereof, which will prevent or adversely affect the development of the Station Square Project. Station Square Development 2-10-04 Draft ~4 (e) The Agency shall maintain its financial capability to carry out its responsibilities as contemplated by this Agreement and shall notify the Developer of any event, condition, occurrence, or change in its financial condition that 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. (f) 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. 12.03. Survival. The representations, warranties and covenants of Agency as contained in Section 12.01 and 12.02 hereof shall survive the conveyance of the Station Square Parking Lot Site to the Developer by the Agency. ARTICLE 13. DEFAULT; TERMINATION. 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 Developer upon the occurrence of any one or more of the following after the Effective Date: (1) The Developer shall fail to perform 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 Station Square Development 2-10-04 Draft ~~ 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) (1) 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 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 Station Square 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 Station Square 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 Station Square Project Plans and Specifications, working drawings, construction contracts, contract documents, financial commitments, management agreements, and all Permits. Station Square Development 2-10-04 Draft ~() (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 repayments of any Impact Fees. 13.02. Default by 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) 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 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 negotiation of this Agreement as well as any investigation, due diligence, development, design or construction costs incurred by the Developer in connection with the proposed acquisition and development of the Station Square Parking Lot Site, unless any such default by the Agency was willful and committed in bad faith with reckless disregard for the rights of the Developer. (c) The Developer may not terminate this Agreement or institute an action described in paragraphs (a) or (b) 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 will be required (and shall be given or withheld in Developer's sole discretion) if the curative period is to be extended beyond thirty (60) 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 Station Square Development 2-10-04 Draft ~7 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. (d) In the event of a default by Agency in the construction and completion of the Infrastructure Improvements which is not cured within the cure period provided in paragraph (c) above, Developer may elect, at its option, without limiting Developer's right to pursue any other remedy provided in this Agreement, to undertake to complete construction of the Infrastructure Improvements in such a manner as Developer deems reasonably necessary or appropriate under the circumstances. In such event, the I nfrastructure Plans and Specifications, working drawings, construction contracts, contract documents, Building Permits, Permits and any other documents or information related to the construction of the Infrastructure Improvements will be deemed then assigned by Agency to Developer without the necessity of any other action being taken or not taken by any party hereto, and Agency shall undertake all steps as are reasonably necessary to assist Developer in gaining access to the areas upon which the Infrastructure Improvements are to be made. In the event Developer elects to exercise such construction of the Infrastructure Improvements, Agency shall be obligated to promptly reimburse Developer for all costs (including any costs of overtime or premium work necessary to achieve the completion of the Infrastructure Improvements in accordance with the Infrastructure Schedule or as required to avoid delay in completion), incurred by Developer in connection with such construction of the Infrastructure Improvements to the extent that funds are available in the same and shall then be made from such other funds as are legally available to the Agency. Such reimbursement shall include interest on the amounts so expended by Developer at the rate of twelve percent (12%) per annum from the date such amounts were expended by Developer until the date they have been reimbursed by Agency. (e) Any attempt by the Developer to pursue any of the remedies referred to in paragraphs (a), (b), (c) or (d) 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. (f) 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 Station Square Development 2-10-04 Draft ~R 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 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 termination 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 Station Square Parking Lot 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 Station Square Parking Lot Site is taken by the power of eminent domain so as to render the Station Square 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 Station Square Project on the Station Square Parking Lot Site; Station Square Development 2-10-04 Draft ~Q (3) The City has denied or failed to approve Infrastructure Improvements Plans and Specifications or has 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 Station Square Project to commence; (5) The City or other appropriate governmental authority has issued a concurrency compliance certificate or a reservation of services capacity as described in Section 3.05 and such certificate or reservation has been 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 certificate or reservation is required for development of the Station Square Project on the Station Square Parking Lot Site, and the Developer cannot obtain a new or replacement certificate or reservation for the Station Square Project; (6) The Station Square Parking Lot 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; (8) The City approves an amendment to the Plan, which is inconsistent with the Station Square Project being located on the Station Square Parking Lot Site. (9) Utilities are not readily available at the boundaries of the Station Square Project Site at locations satisfactory to the Developer by the Closing Date. (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 Station Square 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),(8), and(9). (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 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 Station Square Development 2-10-04 Draft nO 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 terminated in accordance with its terms, is no longer of any force and effect except for those provisions hereof which expressly survive termination, that the rights, duties and obligations of the parties hereto have been terminated and released (subject to those surviving provisions hereof) and that the Station Square Parking Lot 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 termination certificate shall be paid by the terminating party. 13 07 Remedies' All remedies provided for herein and under Florida law shall be cumulative and shall survive the technical termination of this Agreement pursuant to execution, delivery and recordation of a Termination Certificate or otherwise hereunder. 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 Station Square Development 2-10-04 Draft nl 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 performance 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 filed with the other party to this Agreement within thirty (30) days following the occurrence of the event or condition causing the Unavoidable Delay or thirty (30) 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. ARTICLE 15. RESTRICTIONS ON USE. 15.01. Restrictions on Use. Prior to the earlier of the Termination Date or the Expiration Date, no use of the Station Square Project or the Station Square Parking Lot Site other than as 146 residential condominium units retail space, and parking 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 Station Square Project or Station Square Parking Lot 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. The restrictions contained in this Article 15 shall not apply to the Construction Lender or any other person who obtains title to the Station Square Project or the Station Square Parking Lot Site through foreclosure or conveyance in lieu of and in Station Square Development 2-10-04 Draft fi? anticipation of foreclosure. The restrictions contained herein shall automatically terminate upon the earlier of the Termination Date or the Expiration Date contained in this Section 15.01 . The parties acknowledge and agree that this Section 15.01 survives the early termination of this Agreement by the Developer pursuant to subsection (g) of Section 13.05. ARTICLE 16. FIRE OR OTHER CASUAL TV; CONDEMNATION. 16.01. Loss or Damage to Project. If economically reasonable, 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 Station Square Project 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 Station Square 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 PrQject. Any loss or damage by fire or other casualty or exercise of eminent domain to the Station Square Project or Station Square Parking Lot Site, or any portion thereof, which does not render the Station Square Project or Station Square Parking Lot Site reasonably 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 Project. The Developer shall promptly give the Agency written notice of any significant damage or destruction to the Station Square 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 repair or reconstruction of the Station Square Project. If the Developer determines the Station Square Project cannot be repaired or restored in an economically justifiable or other manner, then the Developer shall so notify the Agency and state reasons supporting its determination. 16.04. Subject 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. Station Square Development 2-10-04 Draft n1 (a) (1) 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 Station Square Project, or any part thereof to any person with the prior written consent of the Agency, which shall not be unreasonably withheld, 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 Station Square Project as is subject to such sale, conveyance, assignment or other disposition, except for the sale of a condominium in the ordinary course of business. (2) If the assignee of Developer's right, title, interest and obligations in and to the Station Square Project, or any part thereof, assumes all of Developer's obligations hereunder for the Station Square 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 Station Square Project, or any part thereof, by the Developer to any corporation, limited partnership, limited liability company. 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. 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 certified mail, Station Square Development 2-10-04 Draft M 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: Station Square, LLC 639 Cleveland St., Ste. 310 Clearwater, FL 33755 Community Redevelopment Agency of the City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attention: Ralph Stone with copies to: with copies to: The Beck Group, Inc. 5100 W. Kennedy Blvd., Ste. 250 Tampa, FL 33604 City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attention: City Manager And David E. Platte, Esq. 603 Indian Rocks Rd. Belleair, FL 33756 (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 ConstnJction. The laws of the State of Florida shall govern 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 Station Square Development 2-10-04 Draft n~ 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 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 Station Square Development 2-10-04 Draft nn of the respective interest in the Station Square 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 Station Square Parking Lot Site, specifically including the conveyance of the Station Square Parking Lot Site by the Agency to the Developer, except for the Justice Corporation. 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 by the Developer (and any of its agents, assigns, or successors) with respect to the Station Square Project, and the Agency is not an agent of the Developer (and any Station Square Development 2-10-04 Draft n7 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 "D," 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 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 fifth (5th) anniversary of the Effective Date. Station Square Development 2-10-04 Draft nR (b) Upon completion of the term of this Agreement, all parties hereto shall execute the Agreement Expiration Certificate. The Agreement Expiration Certificate shall constitute (and it shall be so provided in the certificate) a conclusive determination of satisfactory completion of all obligations hereunder and the expiration of this Agreement; provided, however, and notwithstanding the foregoing provisions of this Section 17.19. (c) 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 Marketing Plan. The Developer shall be required to implement the Marketing Plan, attached hereto as Exhibit I. 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 part~s hereto have set their hands and their respective seals affixed as of the~ day of ~ , 2004. , By: rian J. Aung Chairperson . Community Redevelopment Agency Approved as to form: Attest: Ml Pamela K. Akin Attorney for Community Redevelopment Agency . C. Station Square Development 2-10-04 Draft nq c~~~ Print/Type Name: Notary Public l~l"'''~~~ Car.Olyn L BrInk =": :,,~ MY COMMISSION # 00203569 EXPIRES ~. '. ....~l May 22, 2007 ""I..fif. ~1:Icr-' BONDED THPU TROY FAIN INSURANCE INC STATION SQUARE LLC -"'-.. ond Paul Cassano naging Member STATE OF FLORIDA ) COUNTY OF PINELLAS ) ~The foregoing instrument was acknowledged before me this f1t1-- day of _ , 200Y I by Raymond Paul Cassano, Managing Member of Station Square LL ., who is personally known to me or who produced R-uupt').. 't:>L- as identification. ~ ' .L~ ,OLu~ P n~pe Name: R~lr1o- {\1 .\;XW\~ Notary Public ~a\ ReginaMDeVWt . ~ ; My Cornmiasion 00139427 ~Of...d' Expires April 02, 2004 Station Square Development 2-10-04 Draft 70 Exhibit List Project Site Description Station Square Parking Lot Site legal description Cassano property legal description Preliminary Site Plan Form of Special Warranty Deed Memorandum of Development Agreement Agreement Expiration Certificate Agreement Termination Certificate Infrastructure Improvements Infrastructure Improvements Completion Certificate Marketing Plan Survey of Restrictive Covenant Area Exhibit A Exhibit A-1 Exhibit A-2 Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit K Station Sauare Proiect Site Leaal Description Lots 4,5,6,7,8,9,10, and 11, and the West 2 feet 4 inches of the South 101 feet of lot 12, Block 19, Gould and Ewings 2nd Addition to Clearwater Harbor, Florida, as recorded in Plat Book 1, Page 52, public records of Hillsborough County, Florida, of which Pinellas County was formerly a part. Exhibit A Station Square Parkina Lot Parcel Leaal Description Lots 4,5,6,7,8,9, and 10 of Block 19, Gould and Ewings 2nd Addition to Clearwater Harbor, Florida, as recorded in Plat Book 1, Page 52, public records of Hillsborough County, Florida, of which Pinellas County was formerly a part. Exhibit A-1 Cassano Prooertv Leaal Descriotion Lot 11 and the West 2 feet 4 inches of the South 101 feet of lot 12, Block 19, Gould and Ewings 2nd Addition to Clearwater Harbor, Florida, as recorded in Plat Book 1, Page 52, public records of Hillsborough County, Florida, of which Pinellas County was formerly a part. Exhibit A-2 EXHIBIT ~13" PLANS IN FILE ..' 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 STATION SQUARE, LLC, a Florida limited liability company, whose address is 639 Cleveland St., Ste. 310, Clearwater, FL 33755 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 I.D. # 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 , 2004. [SIGNATURE PAGE FOLLOWS] PREPARED BY AND RETURN TO: C-1 ,. ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER By: Chairman Executive Director WITNESSES (as to all signatures): Printed Name: Printed Name: STATE OF FLORI DA COUNTY OF PINELLAS The foregoing SPECIAL WARRANTY DEED was acknowledged before me this day of , 2004, 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 w! ~ ~. KARLEEN F. DE BLAKER, CLERK OF COURT PINELLAS COUNTY FLORIDA INST# 200409991503/0812004 at 06:12 PM OFF REC BK: 13421 PG: 906-908 DocType:NOTICE RECORDING: $15.00 EXHIBIT D MEMORANDUM OF DEVELOPMENT AGREEMENT [Station Square] This Memorandum of Agreement for Development and Disposition of Property ("Memorandum") is made this 23rdday of February , 2004, 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 STATION SQUARE, LLC, a Florida limited liability company (the "Developer"), whose address is 639 Cleveland St., Ste. 310, Clearwater, FL 33755. This Memorandum pertains to an Agreement for Development and Disposition of Property (Station Square), by and between the Agency and the Developer, dated as of February 23 , 2004, (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 Station Square 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 23rd day of February , 2004. [SIGNATURE PAGE FOLLOWS] D-l ;iETURN TO: CITY CLERK 112 S. OSCEOLA AVE ~LEARWATEA, FL 33756 ,. . (SEAL) ATTEST: as By: Its: Secretary , as COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA BY:~ It;-&irman ~ , as STATION SQUARE, LLC D-2 ~ ~ STATE OF FLORIDA COUNTY OF PINELLAS '#I-- ~ The foregoing. instrument was acknowledged before me this ~ day of ~ ' 2004, by , airman of the Community Redevelopment Agency of the City of Clearwater, a body orate and politic of the State of Florida, on behalf of the Agency. He is personally known to me or has produced a valid driver I s license as identification. STATE OF FLORIDA COUNTY OF PINELLAS (SEAL) Ca,u. ~ eX. ~:"L Printed/Typed "MaIlle: Notary Public-State of Florida Commission Number: "'i-.w-.~';'US:'< Carolyn L Brink {j'"J:i.?f().. MY COMMISSION (I 00203569 EXPIRES ~:.~~! May 22. 2007 '{~,<ir;,f.,~" BONDEO THRU TROYfAlN INSURANCE.INC. The foregoing instrument was acknowle,9ged before me this \(~ day of \=='"-cb~ ' 2004, by~~r"'~~~~~<h)~ATION SQUARE, LLC, a Florida limited liab ity company, on behalf of the corporatIOn. He IS personally known to me or has produced a valid driver's license as identification. ~ ~ ...(SEAL) )1M. LJ . ~ PrmtedJTyped Name: ~LJLe /1.-1. 'i)., w;16 Notary Public-State of Florida Commission Number: ~a\. Regina M DeIJllitt . ~ . My Commission 00139427 '\;01...'.1 Expires April 02, 2004 D-3 EXIDBIT "E" AGREEMENT EXPIRATION CERTIFICATE [Station Square] 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 STATION SQUARE, LLC, a Florida limited liability company (the "Developer"), whose address is 639 Cleveland St., Ste. 310, Clearwater, FL 33755. This Certificate pertains to an Agreement for Development and Disposition of Property (Station Square), 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 Station Square Project, as same is defmed 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 Station Square 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 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 E-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 STATION SQUARE, LLC By: Its , as E-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 I 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: E-3 EXIDBIT "F" AGREEMENT TERMINATION CERTIFICATE [Station Square] 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 STATION SQUARE, LLC, a Florida limited liability company (the "Developer"), whose address is 639 Cleveland St., Ste. 310, Clearwater, FL 33755. This Certificate pertains to an Agreement for Development and Disposition of Property (Station Square Project), by and between the Agency and the Developer, dated as of , 2004 (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 Station Square Project, as same is defined in the Development Agreement. The Development Agreement has terminated in accordance with its own terms as provided in Section 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 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 Station Square 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 F-l (SEAL) ATTEST: By: , as Its: Executive Director (SEAL) ATTEST: By: Its: Secretary , as By: Its Chairman , as STATION SQUARE, LLC By: Its , as F-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 STATION SQUARE, LLC, 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: F-3 Required infrastructure improvements consist of streetscaping of Cleveland Street between Osceola Avenue and Myrtle Avenue, plus improvement of Station Square Park, all as shown on the approved conceptual plans prepared by Bellomo- Herbert, Inc. The streetscaping project is to include construction of a new storm sewer outfall system in Cleveland Street which can be used for the stormwater outfall for the Beck project. Exhibit G ~ (/ tfi " <> D II llr' " nr 9 br:.{'I \' .~g 5 Pri~ " ~~t 6 ~~ ~1 ~ c' ~ a ~ \P ~ y -I ~!li-~\9 'h !w ~-,'~) L Y 111 , IV' - -~, I \ "1~' <,.../ \ I ~ ~ ''-." 1 "I \ , \ I -' 11- l- ,(1 A_ i" (II I \) -1 c~ cr- il~ ~ .~ , ~ ~ > ,- 19 'll 'ill 5 ~ (] H ij ~ 7' I .~ ----==-....-- " - -- , \ , \ \ \ I I Sl ~ EXHIBIT j G-- I EXl5TING CLEAR- WATER TOWER ~ ~ ~ eRA..... ~~~ n...rJ-.llo @ SCAoLC: 1"- to. -0" NORTH DATE: APRIL :50. 2003 CITY OF CLEARWATER <> STATION <> .. ... SQUARE PARK .. CONCEPT DESIGN BELLOUO . HERBERT '01) ~ _ ~ ..," .0- -..- ~ .a7...u....-s "'_.a'7__II.-' ( ~ . EXHIBIT I &~~ iii r EXHIBIT H INFRASTRUCTURE IMPROVEMENTS COMPLETION CERTIFICATE [Station Square] This Infrastructure Improvements Completion Certificate ("Certificate") is made this_ day of , 2004, 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 STATION SQUARE, LLC, a Florida limited liability company (the "Developer"), whose address is 639 Cleveland St., Ste. 310, Clearwater, FL 33755. This Certificate pertains to an Agreement for Development and Disposition of Property (Station Square), by and between the Agency and the Developer, dated as of , 2004 (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 Station Square Project, as same are defined in the Development Agreement. As provided in Section 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. H-l IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the _ day of , 2004. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA By: Brian J. Aungst, Chairperson ATTEST: By: Ralph Stone, Executive Director STATION SQUARE, LLC 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 , 2004, 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) Printed/Typed Name: Notary Public-State of Florida Commission Number: STATE OF FLORIDA COUNTY OF PINELLAS H-2 ! The foregoing instrument was acknowledged before me this day of , 2004, by , of STATION SQUARE, LLC, a Florida limited liability company, on behalf of the limited liability company. He is personally known to me or has produced a valid driver's license as id entification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: H-3 STATION SQUARE MARKETING PLAN All condominium units will be marketed to the general public through a variety of methods. They are described below. 1. Sii!nai!e - The project site will contain signage that includes a rendering of the building with general information about the project and a contact person. 2. Internet Site - The project currently has a website, www.stationsquarerealtv.com. that displays renderings for the project, current floor plans, and general information about the project. 3. Advertisements - The project will be marketed by advertisements placed in local newspapers and regional magazine publications. 4. Realtors - Local realtors have been contacted about the project and will assist in the sales ofthe units. They will market the units to the entire general public. Realtors will be solicited to assist in leasing the retail space. 5. Sales Center - The sales center will be located across the street from the project at 639 Cleveland Street. It will be open upon construction of the project.The sales center will contain more specific information about the project including unit floor plans. 6. Information Sessions - Prior to construction, the project team will host an information session with each ofthe two office buildings to the west ofthe project. These sessions will provide specific information about the project as well as describe the construction process. 7. Printed Material- A brochure will be prepared which will include a project rendering, site plan, project description, floor plans, and unit plans. This material will be distributed by direct mail and be available in the sales center. Exhibit I CERTIFIED TO: BECK DEVELOPMENT EAGLECONSU LTANTS INC. CONSUL lING ENGINEERS . PLANNERS . SURVEYORS 8514 OLD COUNTY ROAD 54 NEW PORT RICHEY, FLORIDA 34653 OFFICE (727) 375-1101 FAX (727) 375-1116 CERTIFICATE OF AUTHORIZATION L.B. NO. 7240 JOB No. 03D133LGL. 2 SEC. 16, TWP. 29 S., RGE. 15 E. PINELLAS COUNTY, FLORIDA N Eel SOUlH LINE OF LOT 2. CLEARWATER TOWER, PLAT BOOK 104, PAGES 81 AND 827 N 88710' 4O"/E 24.19 SCALE: 1" 30' LEGAL DESCRIPTION' THAT PORTION OF UNPLATTED LAND LOCATED IN SECTION 16. TOWNSHIP 29 SOUTH, RANGE 15 EAST, PINELLAS COUNTY. FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS' BEGIN AT THE SOUTHWEST CORNER OF LOT 8, BLOCK 19, GOULD AND EWING'S 2ND ADDITION TO CLEARWATER HARBOR, FLORIDA, AS RECORDED IN PLAT BOOK I. PAGE 52, OF THE PUBLIC RECORDS OF HILLSBORoUGH COUNTY, FLORIDA, OF WHICH PINELLAS COUNTY WAS FORMERLY A PART, THENCE SOUTH 8S' 47' os' WEST ALONG THE WESTERLY EXTENSION OF THE SOUTH LINE OF SAID BLOCK 19, SAME LINE BEING THE NORTHERLY RIGHT OF WAY LINE Dr CLEVELAND STREET (A 80.00 rOOT RIGHT or WAY). 9.22 FEETI THENCE NORTH OP 12' 52' WEST 197.74 FEET TO THE SOUTH LINE OF LOT 2. CLEARWATER TOWER, AS RECORDED IN PLAT BOOK 104, PAGES 81 AND 82 OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDAJ THENCE ALONG SAID SOUTH LINE NORTH 8S. 30' 40. EAST, 24.19 rE[T TO f1"'E WESTERLY LINE OF LOT 7, BLOCK 19, GOULD AND EWING'S 2ND ADDITION TO CLEARWATER HARBOR, FLORIDA, THENCE SOUTH 03' 06' 40' WEST, ALONG THE WEST LINE OF SAID BLOCK 19, 19S.42 FEET TO THE POINT OF BEGINNING. CONTAINING 3304 SQUARE FEET MORE OR LESS CLOSURE O. 00 GDW F.I.R. S.I.R. F.I.P. r.N.O. S.N.D. F.C.M P.R.M. P,C,? P.I. P.C P.O.B. R/W TYP. PP O.R P.S,M ____ WESTERLY LINE OF LOT 7, BLOCK 19 ___ GOULD AND EWING'S 2ND ADDITION TO CLEARWATER HARBOR, FLORIDA z ~ 9 cd ~ l!! I\) ~ ~ ~ S! cO ~ :-I ~ 1Il WESTERLY EXTENSION or THE SOUTH LINE OF BLOCK 19, AND lHE NORlH RIGHT OF WAY LINE or ClE\iELANO STREET SOUlHWEST CORNER or LOT 8, BLDO< 19, GOULD AND EWlNG'S 2ND ADDITION TO ClEARWATER HARBOR S 88.47'08" W 9.22 BASIS or BEARINGS: N. R/W LINE OF CLEVELAND ST. BEING S S8'47'D8" W (PER PLAT BOOK 104, PAGES 81 & 82). ABBREVlA TION LEGEND: co FOUND IRON ROO (SIZE INDICA TED) = SET IRON ROD 1/2~ LB 7240 "" fOUND IRON PIPE (SIZE INOICA TED) = fOUND NAIL & DlSt< .. SET NAIL & DISK La 7240 "" fOUNO CONCRETE MONUMENT .. PERMANENT REfERENCE MONUMENT .. PERMANENT CON TROL POINT = POINT Of INTERSEcnON '" POINT Of CURVE = POINT OF" BEGINNING .. RIGHT-OF-WAY = TYPICAL = POWf;R POLE "" OF"F'lCIAl RECORDS .. PROFESSIONAL SURVEYOR & MAPPER SEC. = SECTION TiM>, = TOWNSHIP RGE "" RANGE !~l' : ~mUREO (d = CALCULAl[O (F) - FlELD (R) "" RADIAL PD. - PLAT BOOK PC - PAGE CONC. "" CONCRETE COV. "" COVERED A$PH. "" ASPHALT PVMT. ... PAVEMENT ELEV. "" ELEVATION CERTIFIED AS A SKETCH & LEGAL DESCRIPTION UNLESS IT BEARS THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF A FLORIDA LICENSED SURVEYOR AND MAPPER THIS DRAWING. SKETCH, PLAT OR MAP IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT VALID. /{l (J 4- 1/28/04 DATE: EDWARD C ELLIOTT, P.S.M. # 3983 ~ ~ j E '" iii EXHIBIT k