AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY
2/20/02
AGREEMENT FOR DEVELOPMENT
AND
DISPOSITION OF PROPERTY
(Mediterranean Village in the Park)
This Agreement for Development and Disposition of Property ("Agreement") is
made as of this 4th day of March, 2002, by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public
body corporate and politic of the State of Florida created pursuant to Part III, Chapter 163,
Florida Statutes ("Agency"), and THE BALK COMPANY, INC., a Florida Corporation
("Developer").
WIT N E SSE T H:
WHEREAS, on December 6, 1999, pursuant to the Request for Proposals, dated October
22, 1999, the Community Redevelopment Agency of the City of Clearwater, Florida (the
"Agency") tentatively accepted the proposal of Developer, dated November 22, 1999, in
response thereto, subject to negotiation of a defInitive agreement with Developer pertaining to
and setting forth the terms and conditions for the development of a 100-unit residential
townhouse development known as Mediterranean Village in the Park in the community
redevelopment area of the City;
WHEREAS, the Agency proceeded with the preparation of a development and disposition
agreement to set forth the respective duties and responsibilities of the parties pertaining to the
conveyance of the Site (as hereinafter defmed), and the design, development, construction,
completion, operation and maintenance of the Project (as hereinafter defIned), and design,
construction and installation of the Infrastructure Improvements (as hereinafter defIned);
WHEREAS, the Agency and Developer have entered into and concluded negotiations for
said defInitive development and disposition agreement, which negotiations have resulted in this
Agreement;
WHEREAS, due to certain terms and conditions of this Agreement and in order to
provide for the successful development of the Project, the Agency has entered into an interlocal
agreement with the City of Clearwater, Florida ("City"), dated as of March7, 2002 ("Interlocal
Agreement"), providing for the cooperation and assistance of the City and the Agency in
Mediterranean Village Project Development Agreement
1
accomplishing the goals and objectives of this Agreement, including establishing certain duties,
obligations, terms and conditions of the Agency and the City pertaining to the Project Site and
the Infrastructure Improvements;
WHEREAS, at a duly called public meeting on March 4 January 22, 2002, the Agency
approved this Agreement and authorized and directed its execution by the appropriate officials of
the Agency;
WHEREAS, the Developer has approved this Agreement and has authorized and directed
certain individuals to execute this Agreement on behalf of Developer; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.01. Definitions. The terms defined in this Article I shall have the following
meanings, except as herein otherwise expressly provided:
(1) "Act" means the Constitution of the State of Florida; Section 163.01, Florida
Statutes, Part ill, Chapter 163, Florida Statutes; Chapter 166, Florida Statutes, other applicable
provisions of law, and ordinances and resolutions of the City and the Agency implementing
them.
(2) "Agency" means the Community Redevelopment Agency of the City, as created
by Resolution No. 81-68 of the City, adopted by the City Commission on August 6, 1981,
including any amendments thereto, and any successors or assigns thereto.
(3) "Agreement" means this Agreement for Development and Disposition of
Property, including any Exhibits, and any amendments hereto or thereto.
(4) "Agreement Expiration Certificate" means the instrument executed by the parties
hereto as provided in Section 17.19 certifying that all obligations of the parties hereto have been
satisfied and this Agreement has expired in accordance with its terms, the form of which is
attached hereto as Exhibit "G."
(5) "Agreement Termination Certificate" means the instrument executed by the
parties hereto as provided in Section 13.06 stating that this Agreement has been terminated prior
to its Expiration Date as provided in Section 13.05, the form of which is attached hereto as
Exhibit "H."
(6) "Area" means the area located within the corporate limits of the City having
conditions of slum and blight (as those conditions are defmed in the Act) as found by the City
Mediterranean Village Project Development Agreement
2
t/J
Commission in Resolution No. 81-67, adopted by the City Commission on August 6, 1981.
(7) "Authorized Representative" means the person or persons designated and
appointed from time to time as such by the Developer or the Agency, respectively, pursuant to
Section 2.04.
(8) "Building Permit" means, for all or any part of the Project to be constructed on
the Site, any permit issued by the City authorizing, allowing and permitting the commencement,
prosecution and completion of construction to the extent provided in said permit.
(9) "City" means the City of Clearwater, Florida, a Florida municipal corporation,
and any successors or assigns thereto.
(10) "City Commission" means the governing body of the City, by whatever name
known or however constituted from time to time.
(11) "Closing Date" means the date on which title to the Stage I. Stage II or Stage III
Property is conveyed by the Agency to the Developer in accordance with and as contemplated by
the provisions of Article 7 hereof.
(12) "Commencement Date" means the date of issuance of the first Building Permit for
any part of the Project.
(13) "Completion Date" means the date on which construction of any Stage of the
Project is substantially complete as evidenced by a Completion Certificate.
(14) "Contractor" means one or more individuals or firms constituting a general
contractor or other type of construction contractor properly licensed by the State of Florida or
other appropriate jurisdiction to the extent required by applicable law, authorized to perform
construction contractor services in the State of Florida, registered with the City as required by
applicable law, bonded and insured to the extent required by applicable law and this Agreement,
including the Developer or any affiliates of the Developer.
(15) "Construction Financing" means the funds provided by the Construction Lender
to the Developer during the term of this Agreement to pay the cost of developing and
constructing the Project, or any portion thereof, on the Project Site, including, but not limited to,
acquisition of the Site, financing costs, "soft costs," overhead, and the design, construction and
equipping of the Center Project.
(16) "Construction Lender" means any person or persons providing the Construction
Financing or any portion thereof.
(17) "Developer" means THE BALK COMPANY, INC., a Florida Corporation, and
Mediterranean Village Project Development Agreement
3
,~
any successors and assigns thereof, including any entity, partnership, joint venture, or other
person in which THE BALK COMPANY, INC., is a general partner or principal, but not
including any entity, partnership, joint venture, or other person in which THE BALK
COMPANY, INC., is a general partner or principal which is not undertaking or participating in
any development of the Project, or any part thereof. The Developer shall not mean a purchaser
or lender of individual units within the Project.
(18) "Effective Date" means the date determined in accordance with Section 17.20
when the Memorandum of Development Agreement is recorded and this Agreement becomes
effective.
(19) "Exhibits" means those agreements, diagrams, drawings, specifications,
instruments, forms of instruments, and other documents attached hereto and designated as
exhibits to, and incorporated in and made a part of, this Agreement.
(20) "Expiration Date" means the date on which this Agreement expires, as evidenced
by the Agreement Expiration Certificate being recorded in the public records of Pinellas County,
Florida, as provided in Section 17.19 hereof.
(21) "Impact Fees" means those fees and charges levied and imposed by the City,
Pinellas County and any other governmental entity on projects located in the Project Site for
certain services impacted by development such as the Project.
(22) "Infrastructure Improvements" means the improvements to be designed,
constructed and installed by the Agency or caused to be designed, constructed and installed by
the Agency in substantial accordance with the Infrastructure Improvements Plans and
Specifications on the Project Site.
(23) "Infrastructure Improvements Completion Date" means the date on which
construction and installation of the Infrastructure Improvements are substantially complete as
contemplated by this Agreement and as evidenced by the Infrastructure Improvements
Completion Certificate.
(24) "Infrastructure Improvements Completion Certificate" means the instrument
executed by the Agency certifying that design, construction, installation and equipping of the
Infrastructure Improvements are substantially complete and usable for the purposes contemplated
by this Agreement and setting forth the Infrastructure Improvements Completion Date, the form
of which is attached hereto as Exhibit "F."
(25) "Infrastructure Improvements Plans and Specifications" means the plans and
specifications pertaining to the Infrastructure Improvements, including the Infrastructure
Schedule for commencing, continuing and completing such improvements, all as prepared,
reviewed and approved as provided in Article 5 hereof.
Mediterranean Village Project Development Agreement
4
iJ
(26) "Infrastructure Schedule" means the schedule for commencing, continuing and
completing the design, construction, and installation of the Infrastructure Improvements, as
prepared, reviewed and agreed to as provided in Article 5.
(27) "Interlocal Agreement" means the interlocal agreement between the City and the
Agency, dated as of March 7 January 21, 2002, entered into pursuant to Sections 163.01 and
163.400, Florida Statutes, which establishes certain duties and responsibilities of each party
thereto pertaining to the Project and the implementation of this Agreement, including, but not
limited to, the Infrastructure Improvements and the Project Site, which agreement is further
described in Section 2.05 hereof.
(28) "Mediterranean Village Plans and Specifications" means the plans and
specifications pertaining to the construction, of the Project, including the schedule for completing
the Project, consisting of the plans and specifications for each Stage.
(29) "Permits" means all zoning, variances, approvals and consents required to be
granted, awarded, issued, or given by any governmental authority in order for construction of
the Project, or any part thereof, to commence, continue, be completed or allow occupancy and
use, but does not include the Building Permit.
(30) "Stage" means Stage I, Stage II, or Stage III of the Project, as the case may be.
(31) "Stage I" means the initial Stage of the Project, which shall consist of 15 units,
the community hall and swimming pool.
(32) "Stage II" means the second Stage of the Project which consists of 49 units.
(33) .'Stage ill" means the third Stage of the Project which consists of 36 units.
(34) "Stage Property" means Stage I Property, Stage II Property, or Stage III Property
as the case may be.
(35) "Stage I Property" means that portion of the Site described or depicted on Exhibit
"A-I" upon which Stage I shall be constructed.
(36) "Stage II Property" means that portion of the Site as described and depicted on
Exhibit "A-2" upon which Stage II shall be constructed.
(37) "Stage ill Property" means that portion of the Site as described and depicted on
Exhibit "A-3" upon which Stage ill shall be constructed.
(38) "Plan" means the community redevelopment plan for the Area, including the
Mediterranean Village Project Development Agreement
5
,~
Project Site, as adopted by the City Commission on August 17, 1995, by enactment of its
Resolution No. 95-68, and including any amendments to the Plan.
(39) "Project" means the 100 residential townhouse fee simple units together with a
swimming pool and community hall to be located on the Site as contemplated by the Proposal
and this Agreement and constructed substantially in accordance with the Mediterranean Village
in the Park Plans and Specifications, consisting of Stage I, Stage II, and Stage III.
(40) "Project Professionals" means any architects, attorneys, brokers, engineers,
consultants, planners, construction managers or any other persons, or combination thereof,
retained or employed by the Developer in connection with the planning, design, construction,
permit applications, completion and opening of the Project, but does not include the Developer.
(41) "Project Site" means the tract of land located in the Area on part of which the
Infrastructure Improvements will be constructed and installed and that part of which is to be
conveyed to the Developer constituting the Site on which the Project will be located, as more
particularly described and depicted on Exhibit "A," including the public rights-of-way and any
land to be dedicated to public use or across which there is a permanent public access easement or
easement in favor of the Developer.
(42) "Proposal" means the proposal for redevelopment of the Project Site, dated
November 22, 1999, submitted by the Developer to the Agency in response to the RFP.
(43) "RFP" means the Request for Proposals initially published by the Agency on
October 22, 1999, soliciting proposals from persons interested in redeveloping the Project Site in
accordance with the Act and the Plan.
(44) "Site" means that part of the Project Site which is conveyed to the Developer by
the Agency pursuant to the terms of Article 7 hereof and on which the Mediterranean Village in
the Park is to be located.
(45) "Site Plan" means the depiction and description of the Project on the Project Site,
the initial version of which is attached hereto as Exhibit "B."
(46) "Termination Date" means the date on which this Agreement is terminated by any
party hereto as provided in Section 13.05, and as evidenced by the Agreement Termination
Certificate.
(47) "Unavoidable Delay" means those events constituting excuse from timely
performance by a party hereto from any of its obligations hereunder, as such events are defmed
in and subject to the conditions described in Article 14 hereof.
1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and
Mediterranean Village Project Development Agreement
6
tx::;
construed to include correlative words of the feminine and neuter genders. Unless the context
shall otherwise indicate, the singular shall include the plural as well as the singular number, and
the word "person" shall include corporations and associations, including public bodies, as well as
natural persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and
other equivalent words refer to this Agreement and not solely to the particular portion thereof in
which any such word is used.
1.03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes
(2001), as amended from time to time.
ARTICLE 2. PURPOSE; PROPOSAL.
2.01. Intent: Purpose of Agreement.
(a) The purpose of this Agreement is to further the implementation of the Plan by
providing for the planning, construction and installation of the Infrastructure Improvements, the
conveyance of the Site to the Developer and the development and construction of the Project
thereon in accordance with the Project Plans and Specifications, all to enhance the quality of life,
increase employment and improve the aesthetic and useful enjoyment of the Area through the
eradication of conditions of blight, all in accordance with and in furtherance of the Plan and as
authorized by and in accordance with the Act.
(b)(l) The Site, which may be conveyed to Developer in three (3) Stages and may be
constructed in three (3) Stages, is to be redeveloped according to Project Plans and
Specifications .
(2) As provided in this Agreement, the Agency shall undertake certain public actions
pursuant to the Act and as implementation of the Plan, including making the Project Site
available for redevelopment, assistance in obtaining such approvals by governmental authorities
as are necessary for development of the Project, and the construction and installation of the
Infrastructure Improvements.
(c) As provided in this Agreement, the Developer shall carry out the redevelopment
of the Site by purchasing the Site from the Agency, obtaining approvals by governmental
authorities necessary for development of the Project, constructing various private improvements
on the Site, and causing the Project to be developed.
2.02. Developer's Proposal.
(a) The Proposal for the redevelopment of the Project Site, specifically including the
acqUiSitIOn of the Site by the Developer from the Agency and the design, construction,
equipping, completion and use of the Project, and each component thereof, is hereby found by
the Agency and acknowledged by the Developer: (1) to be consistent with and in furtherance of
Mediterranean Village Project Development Agreement
7
kJ
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. Authorized Representative.
(a) Each party shall designate an Authorized Representative to act on its behalf to the
extent of the grant of any authority to such representative. Written notice of the designation of
such a representative (and any subsequent change in the Authorized Representative) shall be
given by the designating party to the other party in writing in accordance with the procedure set
forth in Section 17.03 hereof.
(b) Except as otherwise expressly provided in this Agreement, whenever approval or
action by the Developer or the Agency is required by this Agreement, such action or approval
may, in the discretion of the party considering such approval or action, be taken or given by the
Authorized Representative thereof. A party to this Agreement may rely upon the representation
of the other party's Authorized Representative that such person has the requisite authority to give
the approval or take the action being done by that Authorized Representative. A party may not
later deny that its Authorized Representative had the authority represented to and relied upon by
the other party or revoke or deny any action taken by such Authorized Representative which was
Mediterranean Village Project Development Agreement
8
~
relied upon by the other party.
(c) The Developer does hereby notify the Agency that its initial Authorized
Representative for the Project is Bruce Balk.
(d) The Agency does hereby notify the Developer that its initial Authorized
Representative is the Executive Director of the Agency.
2.05. Interlocal Agreement.
(a) As of the Effective Date, the Agency and the City have entered into the Interlocal
Agreement, a true and correct copy of which has previously been provided to the Developer.
The parties recognize and acknowledge that the City, as a general purpose unit of local
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 Ill, Chapter 163, Florida Statutes, and Section 163.01, Florida
Statutes, authorizes units of government, such as the City and the Agency, to enter into
agreements such as the Interlocal Agreement whereby the powers and duties and obligations of
one unit of government may be exercised by another or one unit of government may obligate
itself to the other to undertake or not undertake certain actions.
(b) The parties acknowledge that in the Interlocal Agreement the City has agreed with
the Agency to take certain actions or to refrain from taking certain actions which the Developer
has represented to the Agency are critical to the successful development of the Project as
contemplated by this Agreement, specifically including the design, construction, installation and
completion of the Infrastructure Improvements.
(c)(1) Based on the Developer's representation described in subsection (b), the Agency
agrees to take such actions as may be necessary from time to time to implement, commence and
complete the actions required to be taken by the City pursuant to the Interlocal Agreement and,
further agrees, that in the event the Agency fails to do so, the Developer may seek an appropriate
order, ruling, judgment or other directive to the Agency from a court of competent jurisdiction
to enforce this obligation of the Agency to cause the City to do or not to do certain things under
the Interlocal Agreement, provided that nothing in this subsection (c) is intended or shall be
deemed to give the Developer any right to recover damages in any action brought by the
Developer contemplated by this subsection (c). Nothing in this subsection (c) is intended to
deprive the Developer of any rights, remedies or actions it may take pursuant to sections 13.02
or 13.05 hereof.
(2) The Agency covenants and agrees with the Developer that in any legal proceeding
Mediterranean Village Project Development Agreement
9
Ii)
regarding the Project it will not assert or agree that the Interlocal Agreement is void or invalid,
in whole or in part.
(d) The Agency covenants and agrees with the Developer that for so long as this
Agreement is in effect it will take such actions as are necessary to maintain the Interlocal
Agreement in full force and effect and will not take any action or fail to take any action that will
result in the termination of the Interlocal Agreement before it is scheduled to expire by its own
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.
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 Site. The
parties further recognize and acknowledge that the City has in the Interlocal Agreement agreed
not to rezone the Site so as to prevent subsequent development of Stage I, Stage II, or Stage III
to the extent and for the uses currently contemplated.
3.02. Development of Regional Impact.
The parties hereto acknowledge and agree that the Project as contemplated by the
Proposal and this Agreement was not and is not as of the Effective Date a "development of
regional impact" within the meaning of Section 380.06, Florida Statutes.
3.03. Permits.
(a) The Developer shall prepare and submit to the appropriate governmental
authorities, including the City, the applications for each and every Building Permit and any and
all necessary Permits for the Project, and shall bear all costs of preparing such applications,
Mediterranean Village Project Development Agreement
10
;tJ
applying for and obtaining such permits (excluding permit and review costs which shall be
payable by the Agency as hereinafter provided}.
(b) The Agency shall cooperate with the Developer in obtaining all necessary Permits
and the Building Permit required for the construction and completion of the Project.
(c) The Agency shall prepare and submit, or pursuant to the Interlocal Agreement
cause the City to prepare and submit, to the appropriate governmental authorities, including' the
City, the applications for all necessary Permits for the Infrastructure Improvements, and shall
bear all costs of preparing such applications, applying for and obtaining such permits and pay
any and all applicable permit, review, application, inspection, regulatory and Impact Fees or
charges pertaining to the Infrastructure Improvements.
(d) The Agency's duties, obligations, or responsibilities under any section of this
Agreement, specifically including but not limited to this Section 3.03 do not affect the Agency's
or the City's right, duty, obligation, authority and power to act in its governmental or regulatory
capacity in accordance with applicable laws, ordinances, codes or other building or project
regulation.
(e) Notwithstanding any other provisions of this Agreement, any required permitting,
licensing or other regulatory approvals by the Agency or the City shall be subject to the
established procedures and requirements of the Agency or the City with respect to review and
permitting of a project of a similar or comparable nature, size and scope. In no event shall the
Agency or the City, due to any provision of this Agreement, be obligated to take any action
concerning regulatory approvals except through its established processes and in accordance with
applicable provisions of law.
3.04. Concurrency.
(a) The parties hereto recognize and acknowledge that Florida law (specifically, Part
II, Chapter 163, Florida Statutes, and Rule 91-5, Florida Administrative Code, collectively the
"Growth Management Act") impose restrictions on development if adequate public
improvements are not available concurrently with that development to absorb and handle the
demand on public services caused by that development. The City has created and implemented a
system for monitoring the effects of development on public services within the City. The
Developer recognizes and acknowledges it must satisfy the concurrency requirements of Florida
law as applied to the Project. Specifically, the Developer covenants and agrees to comply with
the City's land development code, including providing to the City any and all data and analysis
that shows the Project will be consistent with the goals, objectives and policies of the
comprehensive plan for the City, adopted by the City and in effect on the Effective Date, and the
Developer further covenants and agrees to comply with concurrency certification provisions of
the City's land development code.
Mediterranean Village Project Development Agreement
11
ptJ
(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.
3.05. Not a Development Order or Permit. The parties do hereby acknowledge, agree
and represent that this Agreement is not intended to be and should not be construed or deemed to
be a "development order" or "development permit" within the meaning of those terms in Section
163.3164, Florida Statutes.
ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS.
4.01. Site Plan.
(a) The Developer has prepared a preliminary Site Plan, a copy of which is attached
hereto as Exhibit "B," that contemplates development of the Project consistent with the Proposal
and the current zoning classification for the Site. The Developer agrees that during the term of
this Agreement any material changes to the preliminary Site Plan or any subsequent versions of
the Site Plan will be submitted to the Agency for approval. The Agency shall not unreasonably
withhold, delay or deny its consent to changes which are consistent with the current proposal.
(b) The Site Plan approved by the Agency shall be the basis for and incorporated into
the Project Plans and Specifications.
4.02. Preparation of Proiect Plans and Specifications.
(a) The Developer shall prepare the Project Plans and Specifications in sufficient
detail and description of the Project, and each Stage thereof, both narratively and graphically, to
allow the Agency the opportunity to determine if those plans and specifications are consistent
with the Proposal, the Site Plan and the Plan.
(b)(l) The Developer is responsible for the cost of preparing, submitting and obtaining
approval of the Project Plans and Specifications
(2) The Developer has retained and shall retain the Project Professionals to prepare
the Project Plans and Specifications, and shall notify the Agency of the names of such Project
Professionals and any subsequent changes thereto or additional Project Professionals retained
Mediterranean Village Project Development Agreement
12
tfJ
with respect to the Project. The Developer shall cause the Project Professionals to prepare the
Project Plans and Specifications.
(c)(1) The Agency does hereby consent to the preparation of the Project Plans and
Specifications, and any revisions thereto, by the Project Professionals, and the Agency will not
withhold approval of the Project Plans and Specifications because they were prepared by the
Project Professionals. The Agency hereby acknowledges and agrees that the selection of the
Project Professionals is the sole responsibility of, and within the discretion of, the Developer,
and the Agency will not participate, and have not previously participated, in such selection by
the Developer.
(2) The parties hereto mutually acknowledge and agree the Project Professionals are
not, individually or collectively, agents or representatives, either expressed or implied, of the
City or the Agency.
(d) The Developer shall file the Project Plans and Specifications with the Agency for
each Stage. The Project Plans and Specifications for each Stage shall be filed by the Developer
with the Agency no later than ten (10) business days prior to the Closing Date.
(e) The Project Plans and Specifications contemplated by this subsection (d) shall be
sufficient for a determination by the City required by the ordinances and regulations of the City.
4.03. Coordination with City Review. The Developer has represented to the Agency
and the Agency acknowledges the need to expedite the process for review of the Project Plans
and Specifications and the issuance of any Building Permits and Permits. The Agency agrees to
use its best efforts to coordinate and expedite its review of the Project Plans and Specifications
with any review or approvals by the City or other governmental entities.
4.04. Agency Review of Proiect Plans and Specifications.
(a) During the term of this Agreement, Agency review and approval of the Project
Plans and Specifications is a prerequisite for issuance of the initial Building Permit for
construction of the Project, or any part thereof.
(b) Upon the Developer submitting the Project Plans and Specifications, or any part
thereof (including the plans and specifications for any Stage), to the Agency for review, the
Agency agrees to diligently proceed with and complete its review of the Project Plans and
Specifications and respond to the Developer as soon as reasonably possible after receipt thereof,
but in no event later than ten (10) business days after receipt of such Project Plans and
Specifications, and advise the Developer in writing of the Agency's reasonable objections thereto
or that the Project Plans and Specifications have been approved as submitted.
(c) If the Agency gives written notice of specific objections to or deficiencies in the
Mediterranean Village Project Development Agreement
13
i/J
Project Plans and Specifications as provided in subsection (b), then the Agency and the
Developer shall expeditiously, diligently and reasonably negotiate to resolve such objections.
(d) If the Project Plans and Specifications submitted to the Agency by the Developer
substantially comply with this Agreement, including being substantially in accordance with the
Site Plan, and further the purposes of the Plan, the Agency shall approve the Project Plans and
Specifications as submitted, and shall notify the City and other pertinent governmental entities of
such approval and recommend the City and such other pertinent governmental entities give such
approvals and issue such permits or licenses as are necessary for development of the Project (or
the Stage included in the approved Project Plans and Specifications).
(e) If the Developer does not dispute the objections to any proposed Project Plans and
Specifications contained in any notice from the Agency, it shall submit revised Project Plans and
Specifications satisfying such objections. Any changes in the Project Plans and Specifications
made by the Developer in response to such a notice shall be made without charge to the Agency.
(f) The parties acknowledge and agree that the review and approval of the Project
Plans and Specifications with respect to Stage I shall be completed before the Closing Date, and
that included in such approval will be a mutually agreed upon development schedule, including
significant construction milestones for the Project (or a Stage thereof) and the Infrastructure
Improvements.
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
substantially complete in accordance with the Infrastructure Improvements Plans and
Specifications no later than the Infrastructure. Improvements Completion Date as shown on
Exhibit D, Infrastructure Improvements Schedule. The Agency agrees to coordinate the
planning, design and construction and installation of the Infrastructure Improvements with the
Project design, construction, equipping and completion as provided in the Infrastructure
Schedule.
(b) The parties recognize and acknowledge that in the Interlocal Agreement the City
has agreed to design, construct and install the Infrastructure Improvements for the Agency as
provided in that agreement. The Developer acknowledges and agrees that the design,
construction and installation of the Infrastructure Improvements may be undertaken by the City
and that the provisions of the Interlocal Agreement pertaining to such actions by the City satisfy
the requirements of this Agreement.
5.02. Infrastructure Improvements Plans and Specifications.
Mediterranean Village Project Development Agreement
14
~
(a) The Agency shall be responsible for the preparation of the Infrastructure
Improvements Plans and Specifications.
5.03. Infrastructure Improvements Financing.
(a) In no event shall the obligations, either express or implied, of the Agency under
the provisions of this Agreement to pay the costs of the Infrastructure Improvements be or
constitute a general obligation or indebtedness of the City or the Agency, or both, or a pledge of
the ad valorem taxing power of the City or the Agency, or both, within the meaning of the
Constitution of the State of Florida or any other applicable laws, but shall be payable solely from
legally available revenues and funds. The Developer, any Construction Lender or any
Contractor, subcontractor, materialman, or 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 Project, but in no event earlier than the
Commencement Date, as provided in the Interlocal Agreement, the Agency will cause the City to
commence construction of the Infrastructure Improvements and cause it to proceed to substantial
completion in accordance with the Infrastructure Schedule except as otherwise agreed, the
Infrastructure Improvements shall be at no expense to the Developer. It is the intent of the
parties to this Agreement that construction of the Infrastructure Improvements will be
substantially complete and the Infrastructure Improvements will be completed by the dates agreed
to by the parties in the Infrastructure Schedule.
(b) The Infrastructure Improvements and the Project shall be undertaken and
completed at such times and in such a manner as may be mutually agreed upon by the Agency
and the Developer taking into account the schedule for specific aspects of the construction of
such improvements.
5.05. Infrastructure Improvements Completion Certificate.
(a) Upon the completion of the construction, installation and equipping of the
Infrastructure Improvements in accordance with the provisions of this Article 5 and the
Infrastructure Improvements Plans and Specifications such that the improvements are
substantially complete, the Agency shall prepare and execute the Infrastructure Improvements
Completion Certificate (Exhibit F), and deliver it to the Developer. Upon receipt of the
certificate, the Developer shall determine if construction, installation and equipping of the
Infrastructure Improvements has been so completed, and, if so, shall execute the certificate and
Mediterranean Village Project Development Agreement
15
f1
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 Project be coordinated with other parts of
the Project and the design, construction, installation and equipping of the Infrastructure
Improvements and the Project so as to minimize conflicts, improve efficiency and avoid delays in
completion of the Project and each part thereof.
(b)(1) The Agency shall designate a person to coordinate the planning, construction,
installation, equipping and completion of the Infrastructure Improvements with the construction
of the Project.
(2) The Developer shall designate a person to coordinate the planning, construction,
installation, equipping and completion of the Project with the construction of the Infrastructure
Improvements.
ARTICLE 6. PROJECT FINANCING.
6.01. Construction Financing.
(a) If the Developer elects to obtain Construction Financing, the Developer shall use
its reasonable efforts to obtain from a Construction Lender a commitment to provide the
Construction Financing as soon as is reasonably possible. Upon obtaining such Construction
Financing, the Developer shall notify the Agency that it has obtained said fmancing 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
Mediterranean Village Project Development Agreement
16
/lA
development and construction of the 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 Site and the
development, construction and completion of the Project.
6.02. Notice of Developer's Default.
(a) The Developer covenants and agrees with the Agency that any Construction
Financing documents shall include provisions that if the Construction Lender declares the
Developer to be in 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 I s address to the Construction Lender or for the
Construction Lender to receive any such notice shall not constitute a waiver by or preclude or
delay the Agency from proceeding with or enforcing any right or remedy available to it under
this Agreement, nor shall it constitute a waiver by or preclude or delay the Construction Lender
from enforcing any right or remedy available to the Construction Lender. The notice from the
Construction Lender to the Agency shall state the basis of the default by the Developer, shall
identify the particular provision of the financing documents under which the Developer is in
default and shall include copies of any pleadings in any proceeding instituted by the Construction
Lender incident thereto.
(b) Any notice from the Agency to the Developer specifying an event of default by
the Developer under Section 13.01 hereof shall, at the same time it is provided to the Developer,
be mailed by the Agency to any Construction Lender by certified mail, return receipt requested,
at its address last given to the Agency by the Developer prior to such notice; provided, however,
the failure of the Agency to mail any such notice or the Construction Lender to receive any such
notice shall not constitute a material breach or default of this Agreement by the Agency, nor
shall it constitute a waiver by or preclude or delay the Agency from proceeding with or enforcing
any right or remedy available to it under this Agreement. The notice from the Agency to the
Construction Lender shall state the basis of the default, the particular provision of this
Agreement under which the Developer is in default and shall include copies of any pleadings in
any proceedings instituted by the Agency incident thereto.
6.03. Cure of Developer's Default bv Lender.
(a)(1) Following the Agency providing the notice under Subsection 6.02(b) hereof, the
Construction Lender may, at its election, cure or remedy the default by the Developer described
in such notice. If the Construction Lender elects to cure such default, it shall give notice of such
election to the Agency and the Developer within sixty (60) days after the Agency issued its
notice of default by the Developer as provided in Section 13.01 hereof.
(2) So long as the Construction Lender proceeds to cure or remedy the Developer's
Mediterranean Village Project Development Agreement
17
fJA
default of this Agreement, the Agency agrees not to exercise any right or remedy available to it
resulting from the Developer's default described in the notice and which the Construction Lender
has elected to cure for such period of time as shall be reasonably necessary for the Construction
Lender to cure or remedy such default, including any time reasonably necessary for the
Construction Lender to obtain possession of the Site, if possession is necessary to enable the
Construction Lender to cure or remedy such default.
(b) If a default by the Developer under this Agreement is timely cured or remedied by
the Construction Lender pursuant to this Section 6.03, then the Agency shall not have any rights
or remedies against the Developer with regard to such default, except in such an event, the
Developer shall be obligated to pay and the Agency may recover from the Developer any
reasonable fees, costs or other expenses (including reasonable attorneys fees) incurred by the
Agency as a result of said default by the Developer, plus interest on such fees, costs or other
expenses from the date they were incurred at an annual percentage rate of twelve percent (12 %).
(c) If the Construction Lender elects to cure or remedy the Developer's default
hereunder as provided in subsection (a) hereof, it shall then be subject to and bound by the
provisions of this Agreement and the actions required to be taken to remedy or cure said default
that, but for the default by the Developer, would have been applicable to the Developer.
(d) If, as a result of the Construction Lender curing or remedying a default by the
Developer under this Agreement, the Construction Lender completes the construction of that part
of the Project for which the default occurred upon receipt of a written request by the
Construction Lender to the Agency for a construction completion certificate, the Agency shall
execute and deliver to the Construction Lender a construction completion certificate for that part
of the Project, in the same manner and procedure as if the Developer has requested such a
certificate under Section 8.05 hereof.
(e) Subsequent to a default under this Agreement by the Developer, if the
Construction Lender does not timely elect to cure such default as provided in subsection (a)
hereof, or makes such election and proceeds to construct and complete the Project, but fails to
complete such construction by the Completion Date for that Stage (subject to extensions for
Unavoidable Delays) and such failure shall not have been cured within sixty (60) days (or such
longer period as may be reasonably necessary and mutually agreed upon by the Agency and the
Construction Lender), then the Agency may proceed with any remedies available to it under
Section 13.01 hereof.
6.04. Construction Lender Not Obligated to Construct.
(a) If the Construction Lender elects not to cure a default by the Developer hereunder
as provided in Subsection 6.04(a) hereof, the Construction Lender and any other holder who
obtains title to or possession of the Site, or any part thereof, as a result of foreclosure
proceedings or any other action in lieu thereof, including U I) any other party who thereafter
..
Mediterranean Village Project Development Agreement
18
40
obtains title to the Site or such part from and through such holder or, (ii) any other purchaser at a
foreclosure sale, or (iii) any other grantee under a deed in lieu of foreclosure, and any of such
parties' successors and assigns, shall not be obligated by this Agreement to construct or complete
the Project, or any Stage, or to guarantee such construction or completion or to perform any of
the Developer's other agreements, obligations or covenants under this. Agreement.
(b) Nothing in this Section 6.04 or any other provisions of this Agreement shall be
deemed or construed to permit or authorize any Construction Lender or any other party obtaining
title to or possession of the Site, or any part thereof, to devote the Site, or any part thereof, to
any use, or to construct any improvements thereon, other than the uses and improvements
provided in the Plan and in the Project Plans and Specifications.
6.06. Agency Cures Developer's Default. If prior to the issuance of the Project
Completion Certificate for Stage I, the Developer defaults under this Agreement or under, and to
the holder of, any mortgage or other instrument creating an encumbrance or lien upon the Site,
or any part thereof, the Agency may cure such default or breach. In such an event, the Agency,
as the case may be, shall be entitled, in addition to and without limitation upon any other rights
or remedies or payment of any other amounts to which it shall be entitled by this Agreement,
operation of law, or otherwise, to reimbursement from the Developer for all costs and expenses
(including, without limitation, reasonable attorneys' fees) incurred by the Agency in curing such
default, together with interest thereon at a per annum rate equal to twelve percent (12 %). Until
such amount is paid, the Agency shall have a lien on the Site for the amount of such
reimbursement; provided, that any such lien shall be subject and subordinate to the lien of any
then existing mortgage of the Site in favor of the Construction Lender.
ARTICLE 7. SITE CONVEYANCE.
7.01. Findings: Representations.
(a) The Agency and the City own certain real property located in the corporate limits
of the City and in the Area, the legal description of which is set forth as Exhibit "A" attached
hereto and made a part hereof. (the "Site").
(b) Pursuant to the Interlocal Agreement, the City has agreed to convey certain
property within the Site to Agency (Exhibit "A-3").
(c) Developer desires to purchase the Site from Agency.
(d) Agency desires to sell and convey the Site to Developer.
7 .02. Agreement to Sell and Purchase.
The Agency hereby agrees to sell and convey the Site to Developer and Developer hereby
Mediterranean Village Project Development Agreement
19
fI)
agrees to purchase the Site from Agency, upon the terms and conditions hereinafter in this
Article 7.
7.03. Purchase Price.
The purchase price of the Stage I Property is TWO HUNDRED EIGHTY SEVEN
THOUSAND FIVE HUNDRED FORTY THREE DOLLARS ($287,543.00), more or less. The
purchase price of the Stage II Property is NINE HUNDRED THIRTY FIVE THOUSAND
SEVEN HUNDERED THIRTY FOUR DOLLARS ($935, 734.00), more or less. The purchase
price of the Stage ill Property is SIX HUNDRED THOUSAND SIXTY SEVEN DOLLARS
($600,067.00), more or less. The Purchase Price of each property is $7.75 per square foot with
the square footage to be determined by a survey. The amount to be paid by the Developer to
the Agency in consideration of the conveyance of the Property to the Developer is hereinafter
referred to as the "Purchase Price."
7.04. Site Evaluation.
(a) From and after the Effective Date hereof during the term of this Agreement, the
Developer and its agents and representatives shall be entitled to enter upon the Site for
inspection, soil tests, examination, and such other matters and investigations as Developer deems
necessary and appropriate. In this regard, no such examination will be deemed to constitute a
waiver or a relinquishment on the part of Developer of its right to rely on the covenants,
representations, warranties and agreements made by Agency or upon the agreements provided to
Developer by Agency. However, the aforementioned notwithstanding, Developer has exclusive
responsibility for determining the geotechnical status and sufficiency of the site. Developer will
restore any disturbance to the Site caused by its acts and will hold Agency harmless and
indemnify Agency from and against any and all damages and liability occasioned by any claim
asserted against Agency caused by such examination.
(b) Notwithstanding any other provision of this Agreement, Developer shall have the
absolute right until April March 28, 2002, (which the parties acknowledge to be the anticipated
Closing Date) for the Stage I Property to review and examine the Site and the items provided
from Agency (herein referred to as the "Evaluation Period"). At any time prior to the expiration
of the Evaluation Period, Developer may terminate this Agreement if, in its sole discretion,
Developer determines that the Site or the contemplated development or construction thereon is
not economically or otherwise acceptable to Developer notwithstanding anything contained in
Paragraph 13.05 of this Agreement to the contrary. Developer may terminate this Agreement as
provided in Section 13.05 hereof.
7.05. Title.
(a) Five (5) days before the Closing Date for each Stage, the Agency shall furnish to
Mediterranean Village Project Development Agreement
20
~
Developer, at Agency's expense, a commitment for the issuance of an owner's policy of title
insurance for the Stage Property (including any easements to be granted by Agency to Developer
hereunder) by a title insurance company acceptable to Developer in the standard form adopted by
the American Land Title Association. This commitment shall be in the amount of the total
Purchase Price of the Stage Property, shall show in Agency a good and marketable title in fee
simple, free and clear of all liens and encumbrances without exception other than those permitted
under the provisions of Section 7.14 hereof (the "Permitted Exceptions ") in a form reasonably
acceptable to Developer and shall be refereed to hereinafter as the "Title Commitment". Agency
shall cause the standard exceptions to be deleted.
(b) If the Title Commitment, any update thereof or subsequent title commitment or
the survey delivered to Developer in connection with the Stage Property shows that the title is
defective or unmarketable or that any part of the Stage Property is subject to liens, restrictions,
easements, encroachments or encumbrances of any nature whatsoever other than those permitted
under the provisions of Section 7 .14 hereof, Developer shall give Agency a reasonable time (not
to exceed sixty (60) days after Developer has given written notice to Agency of any unacceptable
conditions of title) within which to remedy or remove any such unacceptable conditions of title.
Failure of Agency to remedy or remove any such unacceptable condition of title shall constitute a
grounds for 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 ALTA 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 or easement interests, as the case may
be, to the Site subject to no exceptions other than the exceptions permitted pursuant to Section
7.14. Agency shall pay the premium charged for the issuance of any owner's policy of title
insurance to the extent of the Purchase Price showing Developer as the fee simple owner or
easement holder, as the case may be, of the Stage Property.
7.06. Survey.
(a) The Agency, at Agency's sole cost and expense, shall employ a surveyor licensed
by the State of Florida to prepare a current survey of the Stage Property, which survey shall be
delivered to Developer five days before the closing date for each stage.
(b) The survey shall:
(i) Be prepared in accordance with the minimum standards (including Surveyor's
Certification) required in the State of Florida for removal of the survey exception from the
owner's policy of title insurance issued for the Site.
Mediterranean Village Project Development Agreement
21
/)()
(ii) Set forth an accurate metes and bounds description of the Site, the gross number
of acres contained in the Site.
(iii) Locate all existing easements and rights of way, whether recorded or visible
(setting forth the book and page number of the recorded instruments creating the easement).
(iv) Show any encroachments onto the Site from adjoining property and any
encroachments from the Site onto adjoining property.
(v) Show all existing improvements (such as buildings, power lines, fences, roads,
driveways, railroads, underground pipelines, etc.) and all rivers, creeks drainage ditches or other
water courses.
(vi) Show all dedicated public streets providing access to the Site and whether such
access is paved to the property line of the Site.
(vii) Identify any flood zones as defined on Federal Flood Insurance Rate Maps
(F.I.R.M.) for Pinellas County, Florida that affect the Site.
(viii) Show all applicable set back lines with reference to the source of the setbacks.
(ix) Show all existing trees located upon the Stage Property. (The Developer agrees
to pay the cost of any tree survey).
(x) Be certified to the Developer.
7.07. Rights and Duties of Agency.
(a) Agency shall cooperate in good faith with Developer in Developer's evaluation of
the Site and shall execute all documents or perform such other acts, reasonably necessary to
enable Developer to satisfactorily complete its evaluation of the Site and shall provide to
Developer and its consultants any information or documents reasonably required by Developer
and in Agency's or its consultant's possession which would assist Developer in such evaluation
and preparation.
(b) Agency shall 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 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).
Mediterranean Village Project Development Agreement
22
t:IJ
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 Stage Property.
7.10. Conditions to Closing.
(a) The obligation of Developer to purchase the Site is subject to the following unless
waived by the Developer on or before the Closing Date:
(1) The representations and warranties of Agency set forth herein being true on and
as of the Closing Date with the same force and effect as if such representations and warranties
were made on and as of the Closing Date;
(2) The Developer has approved the Infrastructure Improvements Plans and
Specifications, and the Infrastructure Schedule for the installation and completion of the
Infrastructure Improvements.
(3) The Project shall be in compliance with the zoning, land use and concurrency
requirements for the Site.
(4) Developer shall have received its Building Permit for the Stage I, as well as any
other Permits required in connection with Stage I of the Project.
(5) The Agency shall have either paid or shall reimburse the Developer for all
required Site Plan review fees, Building Permit fees and Preliminary Plat review fee imposed by
the City with respect to the Stage.
(6) As a condition to closing on the Stage II Property only, the Agency shall have
obtained from the Florida Department of Environmental Protection (the Department) and
provided Developer a copy of a letter or other written documentation from the Department
documenting that the environmental remediation work has been completed at the Site in
compliance with all the requirements of the Brownfield Site Rehabilitation Agreement (BSRA)
and the applicable rules of the Department for issuance of a Site Rehabilitation Completion
Order, except for the requirement that the Agency comply with and continue implementing the
plan for natural attenuation of the groundwater contamination, with monitoring (the
Monitoring Only Plan), followed by the submittal and approval of a Site Rehabilitation
Completion Report once all monitoring or other requirements of the MOP have been met.
Developer and the City acknowledge, however, that if the monitoring under the Monitoring
Only Plan fails to show that the groundwater has met cleanup target levels within five years
after approval of the plan, the City may have an obligation under the BSRA to conduct further
assessment and remediation at the Site, in order to obtain the Site Rehabilitation Completion
Mediterranean Village Project Development Agreement
23
/10
Order.
(b) The obligation of the Agency to convey each Stage Property to the Developer is
subject to the following unless waived by the Agency on or before the Closing Date:
(1) The representations and warranties of the Developer set forth in Section 11.01
being true on and as of the Closing Date with the same force and effect as if such representations
and warranties were made on and as of the Closing Date;
(2)
13.01.
The Developer is not then in default of this Agreement as provided in Section
(3)
The Agency shall have approved the Project Plans and Specifications.
(4) The Developer shall have approved the Infrastructure Improvements Plans and
Specifications and the Infrastructure Schedule.
(5) The parties shall have agreed to the construction schedule and milestones for
development of the Stages of the Project and the Infrastructure Improvements and arrangements
for coordination of the construction thereof.
(6) The Developer has paid $130,000 to the City as provided in paragraph 11.010).
(7) Prior to closing on Stage II Property, Developer shall have binding contracts for
sale on at least 50% of the Stage I units.
(8) Prior to closing on Stage ill Property, Developer shall have binding contracts for
sale on at least 50 % of the Stage II units.
7.11. Closing.
Provided all conditions to conveyance of the Stage I Property to the Developer have been
satisfied, Developer shall purchase the Stage I Property on or before April 28, 2002, (herein
referred to as the "Closing Date" on Stage I Property). Provided all conditions to conveyance of
the Stage II Property to the Developer have been satisfied, Developer shall purchase the Stage II
Property on or before April 28, 2003, (herein referred to as the "Closing Date" on Stage II
Property). Provided all conditions to conveyance of the Stage ill Property to the Developer have
been satisfied, Developer shall purchase the Stage ill Property on or before April 28, 2004
(herein referred to as the "Closing Date" on Stage III Property). The parties may mutually agree
to change the Closing Dates. In the event Agency is delayed in fulfilling the closing conditions
set forth in Section 7.1O(a), Developer shall be entitled to an extension for the period of delay
but not to exceed 60 days.
Mediterranean Village Project Development Agreement
24
(IJ
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 of the Stage Property to Developer as
provided on Exhibi~ " A-l".1. " A - 2" .1. and " A - 3", free and clear of any and all liens,
encumbrances, conditions, easements, assessments, restrictions except those permitted in this
Agreement and the Permitted 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 Stage Property as
provided herein, all at Agency's expense.
(c) Developer shall pay the Purchase Price for the Stage Property to Agency m
immediately available funds acceptable to Agency.
(d) Ad valorem real estate taxes and any personal property taxes shall be prorated as
of the Closing Date, based on application of the preceding year's rates to the latest assessed
valuation or statements issued to Agency for the current year's assessment, if available.
(e) Agency shall pay all special assessments and taxes, interest and penalties levied
against the Stage Property prior to the Closing Date.
(t) Agency has terminated all original leases, if any, for the Site or any part thereof
and all tenants will have vacated the Stage Property by the Closing Date.
(g) Agency shall deliver to Developer all original documents pertaining to the Stage
Property including licenses and permits, if any.
(h) Agency shall pay for all documentary stamps and transfer taxes, if any, for the
deed, and for the preparation, recording and documentary stamps for all closing documents, lien
releases and title curative instruments, its own attorney's fees, the premiums for the owner's title
insurance policy, and for recording the deed and all other closing costs and expenses. The
Developer shall pay its own attorneys' fees.
(i) As required by paragraph 7.1O(a)(6) above, Agency shall provide written
documentation from the Department that Agency has completed all the environmental
remediation work at the Site required by the BSRA except with respect to groundwater
contamination, which will be addressed by the Monitoring Only Plan. It is anticipated that the
letter will require monitoring only and deed restrictions governing the use of ground water in the
site described in Exhibit A and construction activities requiring the removal or penetration of the
protective cover over any subsurface soil meeting alternative cleanup target levels rather than
statewide default levels for any contaminant, in the area described in Exhibit K.
Mediterranean Village Project Development Agreement
25
;fi
7.13. Possession.
(a) Possession of the Stage Property shall pass to Developer upon completion of the
Closing on the Stage.
(b) Agency agrees to grant a license (Exhibit E) to Developer to place a temporary
sales facility on the Stage I Property upon the effective date of this Agreement, provided,
however, that Developer must meet all applicable Code requirements.
if} Angency agrees to grant the developer a right of entry to the Stage II property for
the purpose of removal of peat and backfilling the property as provided in Exhibit M.
7.14. Condition of Title.
Title to the Stage Property at the time of conveyance shall be free of all liens,
restrictions, easements, encroachments and encumbrances of any nature whatsoever except the
following (the "Permitted Exceptions "):
(a)
payable.
Real estate taxes for 2001 and subsequent years that are a lien but not yet due and
(b) Comprehensive land use planning, zoning and building ordinances, regulations
and requirements adopted by governmental or municipal authority having jurisdiction.
(c) It is anticipated that DEP will require a restrictive covenant prohibiting the use of
ground water in the area described in Exhibit A and may at least temporarily require a restrictive
covenant governing construction activities requiring the removal or penetration of the protective
cover over subsurface soil in the area described in Exhibit K. These restrictive covenants_shall
constitute a permitted exception.
(d) Those additional exceptions as contained in the Title Commitment to be delivered
by Agency to Developer at closing which Developer, in its sole and absolute discretion, has
elected to accept.
7.15. Taxes and Assessments.
Agency agrees to pay all taxes and assessments that become a lien on the Site prior to the
Closing Date promptly when due. All special assessments applicable to any portion of the Site,
delinquent taxes and delinquent installment of special assessments, together with any penalties
and interest thereon, shall be paid by Agency on or before the Closing Date.
7.16. Covenants . Warranties and Representations.
Mediterranean Village Project Development Agreement
26
~
Agency hereby covenants, warrants and represents to Developer that:
(a) The title of Agency to the Stage Property will at time of closing be absolute, good
and marketable and free and clear of all liens and encumbrances except for the Permitted
Exceptions .
(b) Agency has the full legal power to own and convey the Site as provided for
herein, without any other consent or proceeding required from any other person, entity or
organization.
(c) There are no legal proceedings pending, threatened or contemplated against
Agency or the City in any court, tribunal or administrative agency which affects the Site or
which give or will give rise to any claims or liens against the Site or affect Agency's right to
transfer the Site.
(d) There are no rights of possession, use or otherwise, outstanding in third persons
by reason of unrecorded leases, land contracts, sale contracts, options or other documents other
than in favor of the Agency, other than leases disclosed to Developer and which have been
terminated and will be vacated prior to the Closing Date.
(e) No work has been performed or is in progress on or at the Site and no materials
have been furnished to Agency or the Site or any portion thereof which after closing could give
rise to any mechanics', materialmen, or other liens, and at the Closing Agency shall furnish to
Developer an affidavit attesting to the absence of any such liens or rights to liens.
(f) No assessment for public improvements or otherwise have been made against the
Site which remain unpaid, including without limitation, any special assessments or those for
construction of water, sewer, gas and electric lines, nor have any been proposed.
(g) Agency has no information or knowledge of any change contemplated in the
applicable laws, ordinances or restrictions, or any judicial or administrative action, or any action
by adjacent land owners or natural or artificial conditions upon the Site which would prevent,
limit, impede or make more costly the present or proposed use of the Site except as disclosed
herein.
(h) From and after the date hereof, Agency shall refrain from (1) making any material
changes on or about the Site other than as required by this Agreement; (2) creating and incurring
or permitting to exist any mortgage, lien, pledge or other encumbrance in any way affecting the
Site; or (3) committing any waste or nuisance on the Site.
(i) From and after the date hereof, and at any time prior to transfer of title to
Developer, Agency shall not grant, sell or convey any interest in the Site, including easements or
Mediterranean Village Project Development Agreement
27
,fA
rights of way, to any person, corporation (public or private), governmental body or political
subdivision without the written permission of Developer.
(j)(1) Compliance with Environmental Laws. The Agency acknowledges that the
Developer is an innocent prospective purchaser who has neither caused nor contributed to any
environmental contamination of the Site before its conveyance by the Agency to the Developer.
Reflecting this acknowledgement, this Agreement sets forth special provisions for environmental
indemnification of the Developer by the Agency in section 10.03 below. In addition, the Agency
has disclosed the environmental condition of the Site, as assessed and reported by URS/Dames &
Moore in the following reports: (a) Thomas Carberry, URS, Summary Report of Environmental
Activities [for] Property B, 901-927 Cleveland Street, Clearwater, Florida (December 2000) (Job
No. 38894-017-141; (b) Site Assessment and Remedial Action Plan prepared by URS
Corporation and dated April 2001; (c) Summary Report of Supplemental Soil Delineation
Activities prepared by URS and dated August 2001; and (d) Site Assessment Summary Letter
Report (to David Gerard of DEP) dated November 16, 2001. With respect to the Stage II
Property, the Developer acknowledges receipt of the Phase I and Phase II Environmental Site
Assessment (ESA) Report, Town Pond Project, Downtown Clearwater, Dimmitt Chevrolet
Properties, Properties C, D, and E, completed by International Technology Corporation dated
March 4, 1999. The Agency acquired the Site from the City, which shall remediate the soil
contamination by excavating and removing the contaminated soil in accordance with the
Brownfield Site Rehabilitation Agreement (BSRA) dated July 12, 2001, between the City and the
Florida Department of Environmental Protection (the Department), the Interim Source Removal
Plan prepared by URS Corporation and dated November 2001, and the Focused Risk Assessment
(Property B) prepared by Hazardous Substance & Waste Management Research, Inc., for URS
and dated November 2001. At its own expense the City shall monitor the groundwater
contamination and enter into a restrictive covenant restricting the use of groundwater in the Site
described in Exhibit A in accordance with the BSRA and the Department's approval of the City's
Monitoring Only Plan to be submitted in the revised Remedial Action Plan required by the
BSRA. Subject to these disclosures, the Agency has: (i) materially complied with all applicable
Environmental Laws and (ii) not received any notice of alleged outstanding violation of such
laws, nor does the Agency have knowledge of any facts or circumstances that could constitute
such a violation. Subject to the disclosure described above, to the best of the Agency's
knowledge, there are no Hazardous Substances on, above, within, underneath or in groundwater
underlying the Site which exceed applicable standards under any Environmental Laws.
(2) Definitions. For purposes of this Article 7, the terms "Hazardous Substances"
and "Environmental Laws" shall have the following meanings:
(i) "Hazardous Substances" means any substance or material: (a) identified in Section
101 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42
U.S.C. g9601, as the same may be amended from time to time; or (b) determined to be toxic, a
pollutant or contaminant, under Federal, state or local statute, law, ordinance, rule or regulation
or judicial or administrative order or decision, as same may be amended from time to time,
Mediterranean Village Project Development Agreement
28
rA
including but not limited to (i) hazardous wastes as identified pursuant to the Resource
Conversation and Recovery Act, 42 D.S.C. ~6901, et seq., as the same may be amended from
time to time, or (ii) pollutants, petroleum and petroleum products as defined in either Chapter
403 or Chapter 376, Florida Statutes, as the same may be amended from time to time.
(ii) "Environmental Law" or "Environmental Laws" shall mean any Federal, state or
local statutory or common law relating to pollution or protection of the environment, including
without limitation, any common law of nuisance or trespass, and any law or regulation relating
to emissions, discharges, releases or threatened releases of Hazardous Substances into the
environment (including without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Substances.
(k) Agency has no knowledge of and makes no representations concerning the
physical condition of the Site or any portion thereof except as has been specifically disclosed in
writing to Developer in Exhibit J.
(1) Agency has no knowledge that any commitments have been made to any
governmental authority, utility company, school board, church or other religious body,
homeowners' association, or any other organization, group or individual relating to the Site
which would impose an obligation upon Developer or its successors or assigns to make any
contributions or dedications of money or land or to construct, install or maintain any
improvements of a public or private nature on or off the Site.
(m) There are no facts known to Agency materially affecting the value of the Site
which are not readily observable by Developer or which have not been disclosed to Developer.
(n) Present zoning and land use classification of the Site according to the current and
applicable zoning ordinances and the applicable land use plan is satisfactory for the utilization of
the Site for residential dwelling as contemplated by this Agreement. There are no proceedings to
change such zoning or land use classifications or the conditions applicable thereto. There exists
no violation of any requirement or condition to such zoning or land use classifications which is
applicable to the Project.
(0) The Site is not included in any national, state, county or municipal historic
registry or similar classification, nor does the Site include any historical or archeological
artifacts.
(p) The Agency has full power and authority to enter into this Agreement and
consummate the transactions contemplated hereby and neither this Agreement nor the
consummation of the transactions contemplated hereby will constitute a violation of any order,
rule, regulation, agreement or instrument or any charter or organizational documents to which
the Agency or the City is subject. No further approvals or consents by third parties or
Mediterranean Village Project Development Agreement
29
f/.'J
governmental bodies are required in order for the Agency to enter into this Agreement and
consummate the transactions contemplated hereby, except for the conveyance of the Stage III
Properties by the City to the Agency.
(q) The covenants, representations and warranties of the Agency and the City as
contained herein shall be true and correct as of the Closing and shall survive the Closing of this
transaction.
7.17. Condemnation.
In the event that prior to the Closing Date, all or any portion of the Site or any rights or
easements therein shall be taken by condemnation or rights of eminent domain or like process, or
shall be threatened therewith, and the same, in Developer's reasonable opinion, would have a
materially adverse impact upon Developer's use of the Site, Developer shall, within fifteen (15)
days after having received notice thereof from Agency, elect in writing to either (a) continue this
Agreement in full force and effect, notwithstanding such taking or threatened taking, in which
case Developer shall be required to continue the purchase of the Site, (b) delete the portion of
the Site condemned or threatened to be condemned from this Agreement, with a proportionate
reduction in the Purchase Price, or (c) terminate this Agreement.
7.18. Real Estate Commission.
Developer and Agency represent that they have not used any brokerage services with
respect to the conveyance of the Site to the Developer as herein contemplated. The Agency and
the Developer shall each hold the other harmless and indemnify the other party, its respective
successors, assigns, employees, directors and agents from any and all costs, damages, liabilities
and expenses, including reasonable attorney's fees, incurred by reason of any claim for fee or
commission of any kind based on the sale contemplated herein.
7.19. Maintenance of Site.
Through Closing, the Agency shall maintain the Site in good order.
7.20. Radon Gas Notice.
As required by Section 404.056(6), Florida Statutes, the following notice is hereby given
to the Developer as the prospective purchaser of the Site, which may have buildings, located
thereon, and the Developer acknowledges receipt of such notice:
"Radon Gas: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
Mediterranean Village Project Development Agreement
30
tp
regarding radon and radon testing may be obtained from your county public
health unit. "
7.21. Impact Fees.
The Agency agrees to satisfy on behalf of the Developer the following fees for each Stage
of the Project: Building permit fees, plan review fees and preliminary plat review fees.
Reimbursement shall be within 45 days.
The Agency agrees to payor otherwise satisfy the following fees for Stage I units for
which a certificate of occupancy is issued by May 30, 2003: Development impact fees, sewer
impact fees, transportation impact fee, water impact fees including water meter and tapping fees,
state surcharge fee, certificate of occupancy fees, stormwater buy-in fee, community
development approval fee, and any other City impact fees which are subsequently adopted. For
units for which a certificate of occupancy is issued after May 30, 2003, and before May 30,
2004, the Agency shall pay 50% of the above fees for each unit. For units for which a
certificate of occupancy is issued after May 30, 2004, the Developer shall be responsible for
payment of all fees.
The Agency agrees to payor otherwise satisfy the following fees for all Stage II units for
which a certificate of occupancy is issued by May 30, 2004: Development impact fees, sewer
impact fees, water impact fees, state surcharge fee, certificate of occupancy fees, stormwater
buy-in fee, and community development approval fee. For units for which a certificate of
occupancy is issued after May 30, 2004, and before May 30, 2005, the Agency shall pay 50% of
the above fees. For units for which a certificate of occupancy is issued after May 30, 2005, the
Developer shall be responsible for payment of all fees.
The Agency agrees to payor otherwise satisfy the following fees for all Stage III units for
which a certificate of occupancy is issued by May 30, 2005: Development impact fees, sewer
impact fees, water impact fees, state surcharge fee, certificate of occupancy fees, stormwater
buy-in fee, and community development approval fee. For units for which a certificate of
occupancy is issued after May 30, 2005, and before May 30, 2006, the Agency shall pay 50% of
the above fees. For units for which a certificate of occupancy is issued after May 30, 2006, the
Developer shall be responsible for payment of all fees.
In the event that the Infrastructure Improvement known as the Town Pond is not
substantially completed by May 30, 2003, the dates contained in this Section 7.21 shall be
extended for a like period for the period that the Town Pond is delayed until completion of the
Town Pond.
7.22 Tax Credit.
Agency agrees to apply for or cause the City to apply for the Tax Credit for the voluntary
Mediterranean Village Project Development Agreement
31
tfJ
cleanup activity for the site pursuant to g199.1055 and g376.80, Florida Statutes. The Agency
agrees to cause such credits to be transferred at the direction of the Developer to the extent
allowed by law.
ARTICLE 8. CONSTRUCTION OF THE PROJECT.
8.01. Site Clearance.
The Developer shall be responsible for clearance of the Site such that each part thereof is
in a condition ready for development to commence as of the Commencement Date of each Stage.
Permits issued by the City for pre-construction activities on the Site, including site clearance,
shall not be considered a Building Permit for purposes of this Agreement.
8.02. Construction of the Proiect.
(a)(l) The Developer shall construct the Project on the Site substantially in accordance
with the Project Plans and Specifications therefor. Subject to Unavoidable Delay and the terms
and conditions in this Agreement, the Developer shall commence construction of each Stage of
the Project within ninety (90) days of the Closing Date for each Stage.
(2) For purposes of this Section 8.02, "commence construction" of the Project means
commencement of meaningful physical development of that part of the Project as authorized by
the Building Permit therefor which is continued and prosecuted with reasonable diligence toward
and with the objective of completion of that part of the Project.
(3) If for any reason, excluding Unavoidable Delay, the Developer does not
commence construction of Stage I on or before the ninetieth (90th) day after the Closing Date,
then as of that date the Agency shall no longer be obligated to plan, design, construct or install
the Infrastructure hnprovements in accordance with the Infrastructure Schedule, and Agency and
Developer shall thereafter undertake to mutually agree upon a revised Infrastructure Schedule for
the design, construction and installation of the Infrastructure hnprovements by Agency.
(b)(l) After the Commencement Date, the Developer shall continue, pursue and
prosecute the construction of each Stage of the Project with reasonable diligence to completion
by the Completion Date and shall not at any time actually or effectively have abandoned (or its
Contractor having actually or effectively abandoned) the Site. For purposes of this subsection
(b), "abandoned" means to have ceased any construction work which effectively advances the
construction of that Stage toward completion, including all or substantially all the construction
work force withdrawing from the Site. This section shall apply to each Stage of the Project as
construction commences on the Stage.
(2) All construction work on each Stage of the Project shall be done substantially in
accordance with the Project Plans and Specifications approved therefor pursuant to Article 4
Mediterranean Village Project Development Agreement
32
;tJ
hereof.
(3) All obligations of the Developer with respect to commencement, continuation and
completion of construction of each part of the Project shall be subject to delays and extensions
from time to time for Unavoidable Delay. The Developer shall not be deemed to be in default of
this Agreement to the extent construction or completion of the Project, or any part thereof, is not
complete by reason of Unavoidable Delay.
(c) For purposes of this Section 8.02, "completion," "complete," "substantially
complete" or "substantial completion" means, with respect to construction of either of Stage I or
Stage II of the Project, the later of a certificate of occupancy for ninety (90 %) percent of the
units for that Stage of the Project has been issued by the City or other appropriate governmental
authority having jurisdiction over the Site.
(d)(1) For each Stage of the Project, commencing on the fifteenth (15th) day of the
calendar month following the calendar month in which the Commencement Date occurs and
continuing until the Completion Date for that Stage, the Developer shall make monthly reports to
the Agency in such detail and in such form as may reasonably be requested by the Agency as to
the actual progress of the construction of that Stage of the Project.
(2) If the Agency believes adequate progress in the construction of any part of the
Stage of the Project is not being made, the Agency shall give notice to the Developer that
adequate progress is apparently not being made in the construction of that Stage of the Project
and to respond within ten (10) business days thereafter as to why adequate progress is or is not
being made toward completion of that Stage of the Project.
(e)(I) The Developer agrees that each contract between the Developer and a Contractor
for any part of the Project shall provide, among other things, that: (i) notice shall be given to the
Agency of any material defaults thereunder by the Developer or the Contractor; and (ii) in the
event of a material breach by the Developer of such contract that is not being contested by the
Developer, the Agency shall have the right, but not the obligation, to cure any defaults by the
Developer under such contract without penalty to the Agency or stoppage of the work.
(2) If the Agency elects to cure a material default by the Developer under a contract
between the Developer and a Contractor, upon receipt of a notice to that effect from the Agency,
the Developer shall immediately deliver to the Agency all plans, specifications, drawings,
contracts and addenda thereto pertaining to the construction of that part of the Project which are
in its possession or control (and shall instruct the Project Professionals and any other persons in
possession or control of such plans, specifications, drawings and contracts to deliver them to the
Agency) .
(3) The right of the Agency to cure any default by the Developer as provided in
paragraph (1) above shall be subject and subordinate to the right of the Construction Lender to
Mediterranean Village Project Development Agreement
33
jIJ
cure such default.
8.03. Maintenance and Repairs. During the construction of each Stage of the Project,
the Developer shall, at its own expense, keep that Stage of the Project in good and clean order
and condition and the Developer shall promptly make all necessary or appropriate repairs,
replacements and renewals thereof, whether ordinary or extraordinary, foreseen or unforeseen.
All repairs, replacements and renewals shall be equal in quality and class to the original work.
When making such repairs, replacements or renewals, the Developer shall comply with all
applicable laws, ordinances, codes and regulations.
8.04. Proiect Alterations or Improvements. During the construction of any Stage of
the Project, the Developer may, from time to time, make alterations and improvements,
structural or otherwise, to the Project as the Developer deems desirable and consistent with the
Project Plans and Specifications for the uses contemplated by this Agreement; provided,
however, that prior to the commencement of any material alterations or improvements of
sufficient size and scope as to constitute a material change in the previously approved Project
Plans and Specifications, the Developer shall notify the Agency of such material change and may
submit a change, amendment or revision to the Project Plans and Specifications to the Agency
for review as provided in Sections 4.03 and 4.04 hereof. Nothing in this Section 8.04 is
intended nor shall be deemed to limit or restrict the exercise of governmental or regulatory
powers or authority by the City or any other governmental entity or to enlarge its regulatory
authority .
8.05. Completion Certificate.
(a)(1) Upon the substantial completion of the construction of a Stage of the Project in
accordance with the provisions of this Article 8 (particularly including subsection 8.02(c)), the
Developer shall prepare and execute the Completion Certificate for that Stage, which shall then
be delivered to the Agency. Upon receipt of the certificate the Agency shall promptly and
diligently proceed to determine if construction of the applicable Stage has been completed
substantially in accordance with the Project Plans and Specifications and this Agreement. Upon
making such a determination the Agency shall execute the certificate and return it to the
Developer. The date of the Completion Certificate shall be the date when all parties shall have
executed said certificate.
(2) The Completion Certificate shall constitute a conclusive determination by the
parties hereto of the satisfaction and termination of the obligations of the Developer hereunder to
construct the Stage described in the certificate; provided, however, that nothing in this Section
8.05 shall be a waiver of the rights, duties, obligations or responsibilities of the City or any other
governmental entity acting in its regulatory or governmental capacity or an approval of said
construction for purposes of the issuance of a certificate of occupancy for the Project or any
Stage thereof.
Mediterranean Village Project Development Agreement
34
~
(3) The parties agree that it is their intent that the review by the Agency for purposes
of the Completion 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 Stage has been substantially completed in accordance with the
Project Plans and Specifications, the issuance of a certificate of occupancy for the Stage shall be
a conclusive 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)(1) If the Agency shall refuse or fail to execute the Completion Certificate after
receipt of a request by the Developer to do so, then the Agency shall, within ten (10) days after
its receipt of such request, provide the Developer with a written statement setting forth in
reasonable detail the reason(s) why the Agency has not executed the Completion Certificate and
what must be done by the Developer to satisfy such objections so that the Agency would sign the
certificate. Upon the Developer satisfying the Agency's objections, then the Developer shall
submit a new request to the Agency for execution of the Completion Certificate and that request
shall be considered and acted upon in accordance with the procedures in paragraph (a)(l) for the
original request.
(c) The Completion Certificate shall be in a form sufficient to be recorded in the
public records of Pinellas County, Florida. After execution by the Agency, it shall be promptly
returned to the Developer who shall record the certificate in the public records of Pinellas
County, Florida, and pay the cost of such recording.
8.06. Agency Not in Privity with Contractors. The Agency shall not be deemed to be
in privity of contract with any Contractor or provider of goods or services with respect to the
construction of any part of the Project or any Stage thereof.
8.07. Repurchase of Stage I Property ~ Stage II Property or Stage III Property.
(a) In the event Developer shall not have commenced construction of Stage I, Stage II
or Stage III of the Project within one (1) year following each Closing Date, in such event,
Agency shall have an option to purchase the Stage Property upon the terms and conditions as set
forth in this Section 8.07 (the "Stage Property Option"). The Stage Property Option shall be
exercised by Agency within ninety (90) days following the expiration of the one (1) year period
following the Closing Date. The Stage Property Option shall be exercised by Agency providing
written notice to Developer of its intent to exercise the Stage Option within said ninety (90) day
period (time being of the essence with respect to such notice). In the event that Agency should
fail to provide such written notice of its exercise of the Stage Property Option within said ninety
(90) day period, then the Stage Property Option shall immediately and automatically lapse.
(b) Upon proper and timely exercise of the Stage Property Option, Agency and
Mediterranean Village Project Development Agreement
35
r.IJ
Developer shall undertake to close the conveyance of the Stage Property by Developer to Agency
within sixty (60) days following the date of notice of the exercise of the Stage Property Option
upon the following terms and conditions:
(1) The price to be paid by Agency to Developer for the Stage Property shall equal
the price per square foot of the Site paid by Developer to Agency at the Closing Date multiplied
by the square footage of the Stage Property, plus Developer's costs of any infrastructure
improvements or drainage or utility improvements which have been installed by Developer after
notice thereof to the Agency and which benefit the Stage Property (such costs to be calculated on
a pro rata basis based upon the benefit such improvements provide to the Property as compared
to the Property not purchased by the Agency).
(2) Agency shall pay for the cost of any documentary stamp taxes imposed upon the
deed conveying the Stage Property from Developer to Agency. In addition, Agency shall pay for
any surveyor title insurance Agency elects to obtain in connection with such conveyance.
(c) Until the commencement of construction by the Developer on the Stage Property
or the expiration of the one (1) year period in which such construction was to commence plus the
ninety (90) day period during which the Agency may exercise its option to repurchase the Stage
Property, the Developer covenants and agrees with the Agency not to cause any mortgage or lien
to be levied, assessed or placed on the Stage Property with respect to any financing of
Developer's construction of the Project or other corporate financings of any type without the
prior consent of the Agency.
(d) Upon conveyance of the Stage Property to the Agency pursuant to the exercise of
its option to repurchase the Stage Property, this Agreement shall terminate as to the Stage
conveyed as provided in Section 13.05.
(e) This option to repurchase the Stage Property shall survive a termination of this
Agreement by the Developer pursuant to Section 13.01.
ARTICLE 9. INSURANCE.
9.01. Insurance Requirements Generallv.
(a) The Developer agrees to purchase and maintain in full force and effect such
insurance policies with coverages generally applicable to projects in the State of Florida and
Pinellas County similar in size and scope to the Project, or the Stage under construction if less
than the entire Project. All insurance shall be obtained from financially responsible insurance
companies either duly authorized under the laws of the State of Florida to do insurance business
in the State of Florida (or subject to legal process in the State of Florida) and shall be issued and
countersigned by duly authorized representatives of such companies for the State of Florida.
Mediterranean Village Project Development Agreement
36
~
(b) The insurance coverages and limits shall be evidenced by properly executed
certificates of insurance. No less than thirty (30) days written notice by registered or certified
mail must be given by the Developer to the Agency of any cancellation, intent not to renew, or
reduction in the policy coverages.
(c) The Developer shall cause to be provided to the Agency 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.
9.03. No Waiver of Sovereign Immunity. Nothing in this Article 9 is intended or shall
be deemed to constitute a waiver in whole or in part of any sovereign immunity applicable to and
that may be asserted by the City or the Agency, or the Developer.
ARTICLE 10.
INDEMNIFICATION.
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.
Mediterranean Village Project Development Agreement
37
tJJ
(b) The Developer's indemnity obligations under subsection (a) shall survive the
earlier of the Termination Date or the Expiration Date, but shall apply only to occurrences, acts,
or omissions that arise on or before the earlier of the Termination Date or the Expiration Date.
(c) The Developer's indemnity hereunder is in addition to and not limited by any
insurance policy and is not and shall not be interpreted as an insuring agreement between or
among the parties to this Agreement, nor as a waiver of sovereign immunity for any party
entitled to assert the defense of sovereign immunity.
10.02. Indemnification bv the 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 services.
(b) The Agency's indemnity obligations under this Section 10.02 shall survive the
earlier of the Termination Date or the Expiration Date, but shall only apply to occurrences, acts
or omissions that arise on or before the earlier of the Termination Date or the Expiration Date.
The Agency's indemnity hereunder is not and shall not be interpreted as an insuring agreement
between or among the parties to this Agreement, but is in addition to and not limited by any
insurance policy provided that said obligation shall not be greater than that permitted and shall be
limited by the provisions of Section 768.28, Florida Statutes, or any successor statute thereto.
10.03. Environmental Indemnification by the Agencv.
(a) The Agency agrees to indemnify, defend, and hold harmless the Developer, its
officers, directors, employees, agents, attorneys, contractors, lenders, successors, and assigns
(including any successors or assigns to any interest of the Agency in the Site) (collectively, the
Indemnified Parties) from all actions, claims, administrative proceedings, damages (except for
punitive damages), losses (excluding those resulting from any diminution of value or
marketability of the Site) including those resulting from delay or increased costs of construction,
{such as the cost of dewatering during the construction of the swimming pool), expenses, costs
(including those for remediation), [mes, judgments, or other liabilities, including reasonable
attorneys' fees, which may at any time be filed against, imposed upon, incurred by, or asserted
or awarded against any of the Indemnified Parties, arising from or in connection with
Mediterranean Village Project Development Agreement
38
I/J
(i) the presence, discharge, or release of any Hazardous Substances on, in, under, or
about the Site at any time before the conveyance of the Site to the Developer by the Agency; or
(ii) the application of any Environmental Law to the acts or omissions of the City or
the Agency or their respective officers, employees, agents, successors, or assigns in connection
with the Site; or
(iii) the City's failure to comply with any Environmental Law with respect to the Site.
With respect to any contaminant identified by the URS reports identified above as having
been detected on the Site, the Developer acknowledges receipt of the reports and represents that,
to the best of the Developer's knowledge, the presence of the contaminants detected by URS will
not delay or increase the cost of the construction or development planned by the Developer for
the Site.
With respect to the Stage ill Property, the Developer acknowledges receipt of the Phase I
and Phase IT Environmental Site Assessment (ESA) Report, Town Pond Project, Downtown
Clearwater, Dimmitt Chevrolet Properties, Properties C, D, and E, completed by International
Technology Corporation dated March 4, 1999, and represents that the site conditions identified
in the report will not delay or increase the cost of the construction or development planned by the
Developer for the Site.
(b) To exercise its indemnification rights under this section, an Indemnified Party
shall promptly notify the Agency of any such claim for which indemnity is sought. Any such
notice shall be given in good faith, be reasonably specific, and shall set forth in reasonable detail,
if available, the nature of the alleged loss, claim, damage, expense, or liability of the action or
proceeding. An Indemnified Party shall advise the Agency of all facts material to the claim in
the direct and actual knowledge of an Indemnified Party and, in the event of a third-party claim
or action, shall afford the Agency the opportunity, at the Agency's sole cost, to defend against
such claims, actions, or proceedings. In any such claim, the Indemnified Party shall have the
right to retain its own counsel, and the fees and expenses of such counsel shall be at its own
expense unless the Agency and the Indemnified Party agree in writing to the retention of such
counsel at the Agency's expense.
(c) An Indemnified Party shall have no right to settle or compromise any claims
subject to such indemnification if the Agency notifies the Indemnified Party that the Agency
intends to defend against the claim and undertakes the defense of it within fifteen days after
receiving written notice of the claim and continues the defense throughout the pendency of the
claim. If the Agency fails to undertake or continue the defense, then the Indemnified Party may
settle or compromise any claim upon such terms and conditions as the Indemnified Party deems
necessary or appropriate, and, subject to the provisions of section 10.04 below, all amounts
incurred by the Indemnified Party (including reasonable attorneys' fees) in connection with the
Mediterranean Village Project Development Agreement
39
rfJ
settlement or compromise shall be paid by the Agency to the extent that such amounts are
covered by the indemnification provided in this Agreement.
(d) The provisions of this section 10.03 shall survive the expiration or termination of
this Agreement and shall be in addition to any other remedy or indemnification provided to the
Developer under this Agreement. This indemnity by the Agency is not and shall not be
interpreted as an insuring agreement between or among the parties but is in addition to and not
limited by any insurance policy. This indemnity by the Agency shall not be affected , modified,
extinguished, or impacted in any way by any provision of the State of Florida Brownfields
Redevelopment Act set forth in ~~376.77 through 376.86, F.S-,-
10.04. Limitation of Indemnification.
Notwithstanding anything to the contrary contained herein, with respect to the
indemnification obligations of the Developer (as set forth in Section 10.01) and the Agency (as
set forth in Section 10.02 and 10.03), the following shall apply:
(a) the indemnifying party shall not be responsible for damages that could have been,
but were not, mitigated by the indemnified party;
(b) the indemnifying party shall not be responsible for that 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 I 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 corporation duly organized and validly existing under
the laws of the State of Florida, has all requisite power and authority to carry on its business as
now conducted, to own or hold its properties and to enter into and perform its obligations
hereunder and under each document or instrument contemplated by this Agreement to which it is
or will be a party, is qualified to do business in the State of Florida, and has consented to service
of process upon a designated agent for service of process in the State of Florida.
Mediterranean Village Project Development Agreement
40
(J!J
(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 fmancial 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 fmancial information and other documentation, including that pertaining to the
Project or the Developer, delivered by the Developer to the City and the Agency, was, on the
date of delivery thereof, true and correct.
(g) The principal place of business and principal executive offices of the Developer
are in Clearwater, Florida, and, until the expiration or termination of this Agreement, the
Developer will keep original or duplicate records concerning the Project (such as construction
contracts, financing documents and corporate documents) and all contracts, licenses and similar
Mediterranean Village Project Development Agreement
41
~
rights relating thereto at an office located in the corporate limits of the City of Clearwater.
(h) As of the Closing Date, the Developer will have the fmancial capability to carry
out its obligations and responsibilities in connection with the development of the Project as
contemplated by this Agreement, including the purchase of the Site from the Agency as
contemplated by Article 7.
(i) The Developer (with the assistance of its Project Professionals) has the
experience, expertise, and capability to develop, cause the construction, and complete the Project
and, oversee and manage the design, planning, construction, and completion of the Project, and
to acquire the Site as provided herein.
(j) Developer hereby covenants, warrants, and represents to Agency that with respect
to the remediation of soil contamination at the Site, Developer will pay the City on or before
March 14th, 2002 the sum of $130,000 in return for the City's proceeding with a remedy that
removes soil in accordance with the scope of work set forth in Exhibit L, to a greater extent and
greater depth than would be required to meet alternative soil cleanup target levels based on the
Focused Risk Assessment identified in paragraph (j)(1) in this section, above, in the expectation
that the Department would either require no deed restriction pertaining to soil or would
ultimately release any portion of the Site initially subjected to such a deed restriction after
remediation. In addition, Developer shall be responsible for all costs of backfilling the site due to
soil remediation and peat removal.:.
11.02. Covenants. The Developer covenants with the Agency that until the earlier of the
Termination Date or the Expiration Date:
(a) The Developer shall timely perform or cause to be performed all of the
obligations contained herein which are the responsibility of the Developer to perform.
(b) During each year this Agreement and the obligations of the Developer under this
Agreement shall be in effect, the Developer shall cause to be executed and to continue to be in
effect those instruments, documents, certificates, permits, licenses and approvals and shall cause
to occur those events contemplated by this Agreement that are applicable to, and that are the
responsibility of, the Developer.
(c) The Developer shall assist and cooperate with the Agency to accomplish the
development of the Project by the Developer in accordance with this Agreement, and the Project
Plans and Specifications and will not violate any laws, ordinances, rules, regulations, orders,
contracts or agreements that are or will be applicable thereto, including the Plan and the Act.
(d) The Developer shall comply with all provisions of the financing documents for
any Construction Financing.
Mediterranean Vil/Qge Project Development Agreement
42
tJ;,
(e) Subsequent to the Effective Date, the Developer shall maintain its financial
capability to develop, construct and complete the Project and shall promptly notify the Agency of
any event, condition, occurrence, or change in its financial condition which materially adversely
affects, or with the passage of time is likely to adversely affect, the Developer's financial
capability to successfully and completely develop, construct and complete the Project as
contemplated hereby.
(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 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
Site after the Closing Date necessary for construction of the Project to commence and continue,
the Developer shall not permit, commit, or suffer any waste or impairment of the Site prior to
the earlier of the Termination Date or the Expiration Date.
G) Provided all conditions precedent thereto have been satisfied or waived as
provided herein, the Developer shall design, construct and complete each Stage of the Project
such that it is substantially complete as provided in this Agreement no later than the Completion
Date for that Stage.
(k) Subject to the Agency's indemnification obligation set forth in ~ 10.03, to the extent that the
BSRA between the City and the Department remains in effect and imposes continuing obligations after
closing, Developer agrees to perform any actions necessary to ensure continued compliance with those
obligations, including signing an access agreement in substantially the same form as in Exhibit C to the
BSRA and complying with any deed restrictions or other conditions imposed by the Department on the
Monitoring Only Plan or other order issued under the BSRA for the Site.
Mediterranean Village Project Development Agreement
43
III
ARTICLE 12.
REPRESENT ATIONS, 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 carryon its business as now conducted and to perform its
obligations hereunder and under each document or instrument contemplated by this Agreement to
which it is or will be a party.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and delivered by, the Agency, and
neither the execution and delivery thereof, nor compliance with the terms and provisions thereof
or hereof (1) requires the approval and consent of any other party, except such as have been duly
obtained or as are specifically noted herein, (2) contravenes any existing law, judgment,
governmental rule, regulation or order applicable to or binding on the Agency, (3) contravenes
or results in any breach of, or default under or, other than as contemplated by this Agreement,
results in the creation of any lien or encumbrance upon any property of the Agency under any
indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances,
resolutions or, on the date of this Agreement, any other agreement or instrument to which the
Agency is a party, specifically including any covenants of any bonds, notes, or other forms of
indebtedness of the Agency outstanding on the Effective Date.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party constitute, or when entered into will
constitute, legal, valid and binding obligations of the Agency enforceable against the Agency in
accordance with the terms thereof, except as such enforceability may be limited by public policy
or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors I 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
Mediterranean Village Project Development Agreement
44
~
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.
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 Project in accordance with this Agreement and the Project Plans and
Specifications, will carry out its duties and responsibilities contemplated by this Agreement, and
will not violate any laws, ordinances, rules, regulations, orders, contracts, or agreements that are
or will be applicable thereto, and, to the extent permitted by law, the Agency will not enact or
adopt or urge or encourage the adoption of any ordinances, resolutions, rules, regulations or
orders or approve or enter into any contracts or agreements, including issuing any bonds, notes,
or other forms of indebtedness, that will result in any provision of this Agreement to be in
violation thereof.
(d) The Agency shall not request or recommend any rezoning of the Site, or any part
thereof, which will prevent or adversely affect the development of the Project.
(e) The Agency shall maintain its [mancial 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 which adversely affects, or with the passage of
time is likely to adversely affect, the Agency's [mancial 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.
ARTICLE 13.
DEFAULT; TERMINATION.
Mediterranean Village Project Development Agreement
45
>~
13.01. Default bv Develo{>er.
(a) Provided the Agency is not then in default of this Agreement under Section 13.02
hereof, there shall be an "event of default" by the Developer upon the occurrence of anyone or
more of 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 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
Mediterranean Village Project Development Agreement
46
If>
additional notice to the Developer.
(2) Any attempt by the Agency to pursue any of the above referenced remedies will
not be deemed an exclusive election of remedy or waiver of the Agency's right to pursue any
other remedy to which either may be entitled.
(3) Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if such event affects the
Developer's or Agency's ability to perform by such deadline or the expiration of such period.
(c) Subject to the rights of the Construction Lender, any Contractor, creditors of the
Developer, and others claiming a legal or equitable interest in the Project, or a portion thereof, if
the Agency elects under Section 6.06 to cure a default under subsection (a) by the Developer and
complete the construction of the Project, all plans and specifications, working drawings,
construction contracts, contract documents, Building Permits, Permits, management agreements,
and financial commitments (all only to the extent assignable) with respect to the Project shall, if
such default has not been previously cured, on the day following receipt by the Developer of
notice from the Agency of its election to cure under Section 6.06, be deemed then assigned to the
Agency making said election, without necessity of any other action being taken or not taken by
any party hereto. The Developer shall transfer and deliver to the Agency upon making said
election, all assignable Project Plans and Specifications, working drawings, construction
contracts, contract documents, financial commitments, management agreements, and all Permits.
(d) In the event of a termination of this Agreement pursuant to this Section 13.01, the
Agency shall not be obligated to make or to continue to make any payments of any Impact Fees
or using any increment revenues attributed to the Project for Infrastructure Improvements.
13.02. Default 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)(1) If an event of default by the Agency described in subsection (a) shall occur, the
Developer shall provide written notice thereof to the Agency, and, after expiration of the
curative period described in paragraph (2) below, may terminate this Agreement, institute an
action to compel specific performance of the terms hereof by the Agency or pursue any and all
legal or equitable remedies to which the Developer is entitled; provided, however, if the event of
default by the Agency occurs on or prior to the Closing Date, any monetary recovery by the
Developer in any such action shall not include any lost profits or consequential damages and
Mediterranean Village Project Development Agreement
47
R
shall be limited to bona fide third-party out-of-pocket costs and expenses, including reasonable
attorneys' fees, incurred by the Developer in connection with the transactions contemplated
hereby on and after the Effective Date.
(2) The Developer may not terminate this Agreement or institute an action described
in paragraph (1) above if the Agency cures such event of default within thirty (30) days after
receipt by the Agency of written notice from the Developer specifying in reasonable detail the
event of default by the Agency, or if any such event of default is of such nature that it cannot be
completely cured within such period, then within such reasonably longer period of time as may
be necessary to cure such default, provided however, if the Agency is proceeding diligently and
in good faith, the curative period shall be extended for a period of not exceeding an aggregate of
thirty (30) days without any approval or consent of the Developer being required, but such
approval will be required (and shall be given or withheld in Developer's sole discretion) if the
curative period is to be extended beyond sixty (30) days after the notice of default has been given
by the Developer to the Agency if the Agency has commenced to cure such default within such
thirty (30) day period and is diligently prosecuting such curative action to completion. The
Agency shall within said thirty (30) day period or such longer period promptly, diligently and in
good faith proceed to cure such event of default after receipt of the notice from the Developer
and shall succeed in curing such event of default within said period of time, provided, however,
if the Agency shall fail to cure such event of default within said thirty (30) day or longer period
or ceases to proceed diligently to timely cure such event of default, then the Developer may
proceed with its available remedies without providing any additional notice to the Agency.
(3) Any attempt by the Developer to pursue any of the remedies referred to in
paragraphs (1) and (2) above will not be deemed an exclusive election of remedy or waiver of the
Developer's right to pursue any other remedy to which it might be entitled.
(4) Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if such event affects the
Developer's or Agency's ability to perform by such deadline or the expiration of such period.
13.03. Obli~ations. Rights and Remedies Cumulative. Unless specifically stated herein
to the contrary, the specified rights and remedies to which either the Agency or the Developer
are entitled under this Agreement are not exclusive and are intended to be in addition to any
other remedies or means of redress to which the Agency or the Developer may lawfully be
entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in,
the performance of its obligations by the Developer, while the Agency shall at such time be in
default of their obligations hereunder shall not be deemed to be an "event of default." The
suspension of, or delay in, the performance of the obligations by the Agency while the
Developer shall at such time be in default of its obligations hereunder shall not be deemed to be
an "event of default" by the Agency.
13.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of
Mediterranean Village Project Development Agreement
48
,(i()
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 Site is taken by the exercise of the power of eminent domain by a
governmental authority (except the City or the Agency) or a person entitled to exercise such
power or benefiting therefrom, or such part of the Site is taken by the power of eminent domain
so as to render the Project commercially unfeasible or unusable for its intended uses as
contemplated by this Agreement;
(2) The appropriate governmental authority (but not including the City in exercise of
its governmental and regulatory authority and responsibility), upon petition by the Developer,
unduly delays or denies or fails to issue the Permits, issue the Building Permits, or approve any
other land use approval necessary to commence construction of the Project on the Site;
(3) The City has denied or failed to approve Infrastructure Improvements Plans and
Specifications or has improperly denied or failed to issue the Building Permit.
(4) A moratorium on new construction is imposed by a governmental authority within
the City or Pinellas County so as to prevent construction of the Project to commence;
(5) The City or other appropriate governmental authority has issued a concurrency
Mediterranean Village Project Development Agreement
49
~
compliance certificate or a reservation of services capacity as described in Section 3.05 and such
certificate or reservation has been properly revoked, repealed, superseded, or otherwise no
longer of any effect or the Developer is unable to rely upon such certificate or reservation, if
such a certificate or reservation is required for development of the Project on the Site, and the
Developer cannot obtain a new or replacement certificate or reservation for the Project.
(6) The Site is not conveyed to the Developer by the Agency due to a condition to
closing described in Section 7.10 not being timely satisfied or waived.
(7) The City fails to approve any zoning, site plan or building plan before May 30,
2002.
(8) The City approves an amendment to the Plan, which IS inconsistent with the
Project being located on the Site.
(c) Upon the occurrence of an event described in subsection (b), then the Developer
or the Agency may upon determining that such event cannot reasonably be expected to change in
the foreseeable future so as to allow development of the Project, may elect to terminate this
Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence
of such event or the determination of inability to cause a condition precedent to occur or be
satisfied, stating its election to terminate this Agreement as a result thereof, in which case this
Agreement shall then terminate, provided, however, only the Developer may elect to terminate
this Agreement upon the occurrence of an event described in paragraph (3), (7), and (8).
(d) In the event of a termination pursuant to Section 13.05(c), neither the Developer
nor the Agency shall be obligated or liable one to the other in any way, fmancially or otherwise,
for any claim or matter arising from or as a result of this Agreement or any actions taken by the
Developer and the Agency, or any of them, hereunder or contemplated hereby, and each party
shall be responsible for its own costs.
(e) Notwithstanding anything to the contrary contained herein, in the event that any
party shall have, but shall not exercise, the right hereunder to terminate this Agreement because
of the non-satisfaction of any condition specified herein, and such condition is subsequently
satisfied, then the non-satisfaction of such condition shall no longer be the basis for termination
of this Agreement.
13.06. Termination Certificate.
(a) In the event of a termination of this Agreement for any reason prior to the
Expiration Date, each of the parties hereto do covenant and agree with each other to promptly
execute a certificate prepared by the party electing to terminate this Agreement, which certificate
shall expressly state that this Agreement has been terminated in accordance with its terms, is no
longer of any force and effect except for those provisions hereof which expressly survive
Mediterranean Village Project Development Agreement
50
IJ{)
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 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 Pine lIas County, Florida. The cost of recording the termination certificate shall be
paid by the terminating party.
ARTICLE 14.
UNAVOIDABLE DELAY.
14.01. Unavoidable Delay.
(a) Any delay in performance of or inability to perform any obligation under this
Agreement (other than an obligation to pay money) due to any event or condition described in
paragraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in
this Section 14.01.
(b) "Unavoidable Delay" means any of the following events or conditions or any
combination thereof: acts of God, acts of the public enemy, riot, insurrection, war, pestilence,
archaeological excavations required by law, unavailability of materials after timely ordering of
same, epidemics, quarantine restrictions, freight embargoes, fire, lightning, hurricanes,
earthquakes, tornadoes, floods, extremely abnormal and excessively inclement weather (as
indicated by the records of the local weather bureau for a five-year period preceding the
Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73 and
74, Florida Statutes, restoration in connection with any of the foregoing or any other cause
beyond the reasonable control of the party performing the obligation in question, including,
without limitation, such causes as may arise from the act of the other party to this Agreement, or
acts of any governmental authority (except that acts of the Agency shall not constitute an
Unavoidable Delay with respect to 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 seven (7) days following the occurrence of the event or condition
causing the Unavoidable Delay or seven (7) days following the Applicant becoming aware (or
with the exercise of reasonable diligence should have become aware) of such occurrence.
(d) The Applicant shall be entitled to an extension of time for an Unavoidable Delay
only for the number of days of delay due solely to the occurrence of the event or condition
causing such Unavoidable Delay and only to the extent that any such occurrence actually delays
that party from proceeding with its rights, duties and obligations under this Agreement affected
by such occurrence.
Mediterranean Village Project Development Agreement
51
PJ
ARTICLE 15.
RESTRICTIONS ON USE.
15.01. Restrictions on Use No use of the Project or the Site other than as 100-unit
residential townhouse development with swimming pool and community hall as described in the
Proposal, this Agreement and the Plan shall be permitted unless and until the Developer or the
person, if other than the Developer, intending to so use the Project or Site, shall file with the
Agency a request for a release from the any part of or all of the restriction imposed by this
Section 15.01. The Agency shall promptly consider such request and either deny the request,
approve the request as filed, or approve the request subject to such terms, conditions and
limitations as the Agency may reasonably require. Unless specifically requested and approved,
any release of the restriction imposed by this Section 15.01 shall not by its own terms without
the consent of the Agency release the Developer from any obligations or restrictions imposed by
this Agreement or any agreement, instrument or document contemplated hereby. If any release
of the restriction imposed by this Section 15.01 is approved by the Agency, an instrument
evidencing such release and in such form that it may be recorded, shall be recorded in the public
records of Pinellas County, Florida, and the cost of such recording shall be paid by the
Developer. Nothing in this Section 15.01 is intended to affect or override any law, ordinance,
regulation, or other legal restriction not set forth in this Agreement.
ARTICLE 16.
FIRE OR OTHER CASUALTY; CONDEMNATION.
16.01. Loss or Damage to Proiect.
If economically feasible, the Developer covenants and agrees to diligently commence and
complete the reconstruction or repair of any loss or damage caused by fire or other casualty or
by eminent domain (provided the City or the Agency is not the condemning authority) to each
and every part of the Project then owned by Developer to substantially the same as existed prior
to the occurrence of such loss or damage. Any reconstruction or repair of any loss or damage to
the Project shall be to the standards, design, plans and specifications of the original construction
unless any change therefrom is approved by the Agency.
16.02. Partial Loss or Damage to Proiect. Any loss or damage by fire or other casualty
or exercise of eminent domain to the Project or Site, or any portion thereof, which does not
render the Project or Site unusable for the use contemplated by this Agreement, shall not
operate to terminate this Agreement or to relieve or discharge the Developer from the timely
performance and fulfillment of the Developer's obligations pursuant to this Agreement, subject to
an extension of time for an Unavoidable Delay.
16.03. Notice of Loss or Damage to Proiect. The Developer shall promptly give the
Agency written notice of any significant damage or destruction to the Project stating the date on
which such damage or destruction occurred, the expectations of the Developer as to the effect of
such damage or destruction on the use of the Project, and the proposed schedule, if any, for
Mediterranean Village Project Development Agreement
52
/iO
repair or reconstruction of the Project. If the Developer determines the 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. Subiect to Financing. The Developer's obligations under this Article 16 are
subject to the terms and conditions of the Construction Financing or any other mortgage
financing in effect at the time any such obligations hereunder would otherwise be applicable.
ARTICLE 17.
MISCELLANEOUS.
17.01. Assignments.
(a)(l) Prior to the earlier of the Termination Date or the Expiration Date, the Developer
may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and
obligations in and to the Project, or any part thereof to any person with the prior written consent
of the Agency, provided that such party (hereinafter referred to as the "assignee"), to the extent
of the sale, conveyance, assignment or other disposition by the Developer to the assignee, shall
be bound by the terms of this Agreement the same as the Developer for such part of the Project
as is subject to such sale, conveyance, assignment or other disposition.
(2) If the assignee of Developer's right, title, interest and obligations in and to the
Project, or any part thereof, assumes all of Developer's obligations hereunder for the Project, or
that part subject to such sale, conveyance, assignment or other disposition, then the Developer
shall be released from all such obligations hereunder which have been so assumed by the
assignee, and the Agency agrees to execute an instrument evidencing such release, which shall be
in recordable form.
(b) An assignment of the Project, or any part thereof, by the Developer to any
corporation, limited partnership, general partnership, or joint venture, in which the Developer is
the or a general partner or has either the controlling interest or through a joint venture or other
arrangement shares equal management rights with a fmancial institution and maintains such
controlling interest or equal management rights for the term of this Agreement shall not be
deemed an assignment or transfer subject to any restriction on or approvals of assignments or
transfers imposed by this Section 17.01, provided, however, that notice of such assignment shall
be given by the Developer to the Agency no less than thirty (30) days prior to such assignment
being effective and the assignee shall be bound by the terms of this Agreement to the same extent
as would the Developer in the absence of such assignment. If the Developer shall at any time
withdraw or be replaced as a general partner or no longer have the controlling interest or
management rights as described in this subsection, then that event shall constitute an assignment
of the Developer's right, title, interest or obligations under this Agreement for purposes of this
Section 17.01 and the prior approval of the Agency shall be obtained before such an event shall
be effective.
Mediterranean Village Project Development Agreement
53
I.K)
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,
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:
THE BALK COMPANY, INC.
Clearwater, FL 33761
Attention:
Community Redevelopment Agency of
the City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention:
with copies to:
with copies to:
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention: City Manager
Clearwater, Florida 337_
(b) Notices given by courier service or by hand delivery shall be effective upon
delivery and notices given by mail shall be effective on the third (3rd) business day after mailing.
Refusal by any person to accept delivery of any notice delivered to the office at the address
indicated above (or as it may be changed) shall be deemed to have been an effective delivery as
provided in this Section 17.03. The addresses to which notices are to be sent may be changed
from time to time by written notice delivered to the other parties and such notices shall be
effective upon receipt. Until notice of change of address is received as to any particular party
hereto, all other parties may rely upon the last address given.
17.04. Severability. If any term, provision or condition contained this Agreement shall,
to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the
application of such term, provision or condition to persons or circumstances other than those in
respect of which it is invalid or unenforceable, shall not be affected thereby, and each term,
provision and condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
17.05. Applicable Law and Construction. The laws of the State of Florida shall govern
Mediterranean Village Project Development Agreement
54
/J()
the validity, performance and enforcement of this Agreement. This Agreement has been
negotiated by the Agency and the Developer, and the Agreement, including, without limitation,
the Exhibits, shall not be deemed to have been prepared by the Agency or the Developer, but by
all equally.
17.06. Venue: Submission to Jurisdiction.
(a) For purposes of any suit, action, or other proceeding arising out of or relating to
this Agreement, the parties hereto do 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
Mediterranean Village Project Development Agreement
55
l~
party is then in default hereof (or if another party is then in default hereof, stating the nature and
details of such default), it being intended that any such statement delivered pursuant to this
Section 17.08 may be relied upon by any prospective purchaser, mortgagee, successor, assignee
of any mortgage or assignee of the respective interest in the Project, if any, of any party made
in accordance with the provisions of this Agreement.
17.09. Complete Agreement: Amendments.
(a) This Agreement, and all the 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 defme, limit, describe the scope or intent of this Agreement or any part thereof, or in any
way affect this Agreement or construe any article, section, subsection, paragraph or provision
hereof.
17.11. Holidays. It is hereby agreed and declared that whenever a notice or performance
under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal
holiday observed in the City, it shall be postponed to the next following business day.
17.12. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential
part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not
physically attached hereto shall be treated as if they are part of this Agreement.
17.13. No Brokers. The Agency and the Developer hereby represent, agree and
acknowledge that no real estate broker or other person is entitled to claim or to be paid a
commission as a result of the execution and delivery of this Agreement, including any of the
Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any
or all of the Site, specifically including the conveyance of the Site by the Agency to the
Developer.
17.14. Not an Agent. During the term of this Agreement, the Developer hereunder shall
not be an agent of the City or the Agency, with respect to any and all services to be performed
Mediterranean Village Project Development Agreement
56
.-<<1
by the Developer (and any of its agents, assigns, or successors) with respect to the Project, and
the Agency is not an agent of the Developer (and any of its agents, assigns, or successors).
17.15. Memorandum of Development Agreement. The Agency and the Developer agree
to execute, in recordable form, on the Effective Date, the short form "Memorandum of
Agreement for Development and Disposition of Property," the form of which is attached hereto
as Exhibit "I I)," and agree, authorize and hereby direct such Memorandum to be recorded in the
public records of Pine lIas County, Florida, as soon as possible after execution thereof. The
Agency shall pay the cost of such recording.
17.16. Public Purpose. The parties acknowledge and agree that this Agreement 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 I 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 I S or the Agency I s obligations or undertakings hereunder.
17.18. Technical Amendments: Survey Corrections.
In the event that due to minor inaccuracies contained herein or any Exhibit attached
hereto or any other agreement contemplated hereby, or due to changes resulting from technical
matters arising during the term of this Agreement, the parties agree that amendments to this
Agreement required due to such inaccuracies, unforeseen events or circumstances which do not
change the substance of this Agreement may be made and incorporated herein. The Chairman of
the Agency is authorized to approve such technical amendments on behalf of the Agency,
respectively, and is authorized to execute any required instruments, to make and incorporate such
amendment to this Agreement or any Exhibit attached hereto or any other agreement
contemplated hereby.
17.19. Term: Expiration: Certificate.
(a) If not earlier terminated as provided in Section 13.05, the term of this Agreement
shall expire and this Agreement shall no longer be of any force and effect (except for those
matters which specifically survive such expiration) on the tenth (10th) anniversary of the
Effective Date.
Mediterranean Village Project Development Agreement
57
/Xl
(b) The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records of Pinellas County, Florida. Following execution by all of the
parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer
in the public records of Pine lIas County, Florida, and the Developer shall pay the cost of such
recording.
17.20. Effective Date. Following execution of this Agreement (and such of the Exhibits
as are contemplated to be executed simultaneously with this Agreement) by the authorized
officers of the Agency and by authorized representatives of the Developer following approval
hereof by the Agency and the Developer and following the approval by the City and the Agency,
respectively of the Interlocal Agreement, this Agreement (and any executed Exhibits) shall be in
full force and effect in accordance with its terms and upon the recording of the Memorandum of
Development Agreement as contemplated by Section 17.15 hereof.
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affIxed as of the ~ day of rY\~ , 2002.
COMMUNITY REDEVELOPMENT AGENCY
OF THE C Y OF CLEARWATER, FLORIDA
A7Jlform
Pamela K. Akin, City Attorney
THE BALK COMPANY, INC.,
By: ~tq" ~~
~ , President
ATTEST:
By: ;Jr./.e.~'~
~
(SEAL)
Mediterranean Village Project Development Agreement
58
~
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this g-~ day of ~ ,
2002, by BRIAN J. AUNGST and CYNTHIA E. GOUDEAU, Chairperson and City Clerk,
respectively, of Community Redevelopment Agency of the City of Clearwater, Florida, They are
personally known to me or have produced valid Florida drivers I licenses as identification.
(SEAL)
c~~.~
NOTARY PUBliC .ITATI Ol' ~ Pnnted/Typed Name:
c~S~~g~8 Notary Public-State of Florida
EXPIRES 5i22J2OO3 C .. N b
BONDEDTHRUASA l.all8-NOTARYf ommlsslon urn er:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing Z1 was acknowledged before me this 4~day of /J1~,
2002, by ~b and , and
, respectively of THE BALK COMPANY, INC. They are ~sonally known!Q..
me.or have produced a valid driver's license as identification. ----
L,a. u I!.. ~ -..:T'. g u ,ec, P F 5
Jt{i~"U~~- I1tAAj/~
Printed/Typed ame:
Notary Public-State of Florida
Commission Number:
(SEAL)
...,.~::.':>, L::llJro J. Burgess
.A>)>:;~':~ tW G:::;',~I:.:~ICJN # CC7621Sa EXPIRES
~,,~ . ::.' ,: October 29/ 2002
\; ;,;'C'.i.>~ SO;!DCD T:-',RJ TROY FAIN INSURANCF. INC
"'r~;'.,~i",,'
Mediterranean Village Project Development Agreement
59
IrO
.
EXHIBIT A
.
Legal Descriptions
and Sketches for
parcels:
lA, IB, 2 & 3
.
.
Parcel lA
.
Begin at the Southeast comer of Lot 14, Block 1, Magnolia Park, as recorded in Plat
Book 1, Page 70 of the Public Records of Hi lIs borough County, Florida, of which
Pinellas County was once a part; thence NOOO 17' 56"W along the East line of said Lot 14
and Lot 3, Block 1, of said Magnolia Park, 235.00 feet to a point on the apparent South
right of way line of Cleveland Street as described by the survey map prepared for the City
of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/01; thence
N89057' 12"E, along said apparent South right of way line of Cleveland Street 270.00 feet
to a intersection of the East line of Lot 8, Block 1, of said Magnolia Park and the West
right of way line of Prospect Avenue; thence SOool7'56"E along said West right of way
line of Prospect Avenue 97.87 feet; thence leaving said West right of way line East, 14.49
feet; thence South, 30.00 feet; thence West, 14.33 feet to a point on said West right of
way line of Prospect Avenue; thence SOOI7'56"E, along said West right of way line of
Prospect Avenue 107.14 feet to the Southwest comer of Lot 9, Block 1, of said Magnolia
Park; thence S89057' 12"W, along the North right of way of Park Street, 54.00 feet to the
Southeast comer of Lot 10, Block 1 of said Magnolia Park; thence NOool7'56"W, along
the East line of said Lot 1 0, 132.50 feet to the Northeast comer of said Lot 10, thence
S89057' 12"W, 202.00 feet; thence SOool7'56"E, 132.50 feet to the North right of way
line of Park Street; thence S89057' 12"W along said North right of way line of said Park
Street 14.00 feet to the point of beginning. (Containing 37102.27 S.F., M.O.L.)
.
S:\Projects\Downtown Pond - #98-0116-EN\legals for plat and lease.doc
~
~
NORTH
CLEVELAND STREET
S.R. 60
LOT 2
LOT 3
---t
LOT 13
LOT 10
LOT 15
P.Q.B. PARCEL 1A :
I_~ CCRNtR OF WT 14,
r- t. AW;M)U4 twlK
LOT 14
LOT 12
LOT 11
_I
S89'S712'W
54.00'
PARK STREET
.
PARCEL 1 A
Note: This is not a survey.
Scale: l' = .
~
c(
I-
U
W
Q.
en
o
0::
Q.
L(
~...
LO'
REV 11/29.
~
.
ParcellB
.
Begin at the Southeast corner of Lot 8, Block 2, Magnolia Park as recorded in Plat Book
1, Page 70, of the Public Records of Hills borough County, Florida, of which Pinellas
County was once a part, thence N89057' 12"E along the South line of said Lot 9 and Lot
1 0, Block 2, of said Magnolia Park, 10 1. 90 feet, to the Southeast corner of said Lot 10;
thence SOool7'56"E, along the East line of Lot 11, Block 2 of said Magnolia Park,
132.50 feet to the southeast corner of said Lot 11; thence continue SOoo17'56"E, 8.16
feet; thence S89042'04"W, 21.42 feet; thence SOoo02'48"E, 22.38 feet; thence
S89057' 12"W, 46.67 feet; thence SOoo02' 48"E, 29.37 feet to the South right of way line
of Park Street; thence S89057' 12"W, along the said South right of way line of Park
Street, 63.71 feet; thence N23029'22"W, 34.41 feet; thence S66030'38"W, 14.94 feet;
thence N23029'22"W, 11.89 feet; thence N83053 'OO"W, 188.67 feet, thence
N06007'00"E, 3.23 feet to the North right of way line of said Park Street; thence
S89057'12"W, along said North right of way line of Park Street, 5.08 feet; thence
S81018'37"W, 157.33 feet; thence N08041 '23"W, 46.67 feet; thence N81018'37"E, 8.85
feet to the East right of way line of Prospect Avenue;,thence NOoo17'56"W, along the
said East right ofline of Prospect Avenue, 20.22 feet; thence S81018'37"W, 1.05 feet;
thence N08041 '23"W, 46.67 feet; thence N81018'37"E, 7.93 feet to the said East right of
way line of Prospect Avenue; thence NOool7'56"W, along said East right of way line of
Prospect Avenue, 143.79 feet to a point on the apparent South right of way line of
Cleveland Street as described by the survey map, prepared for the City of Clearwater by
Florida Design Consultants, job number 212-07, dated 04/03/01; thence N89057' 12"E,
408.00 feet along said apparent South right of way line of Cleveland Street to the West
line of said Lot 9; thence SOoo17'56"E, along the West line of said Lot 9, 102.50 feet, to
the point of beginning. (containing 120739.82 S.F., M.O.L.)
.
S:\ENGIN\Projects\Downtown Pond - #98-0116-EN\legals for plat and lease. doc
.fIlJ
CLEVELAND SlREET
S.R. 60
~
NORTH
-,
LOT 10
LOT 9
P.O.B. ~ARCEL 18
SE CO/lNDI "OF LOT ~
1/tDt:I(~~_
I
PARKSlREET
r
-I
I
PARCEL 18
Note: This
.
Scale: 1 -
-,
.
is not a
60'
.
su rye y.
.
~
Parcel 2
.
Begin at the Northwest corner of Lot 5, Block 3, Magnolia Park, as recorded in Plat Book
1, Page 70, of the Public Records of Hills borough County, Florida, of which Pinellas
County was formerly a part, also being a point on the South right of way line of Park
Street; thence N89057' 12"E, along said South right of way line of Park Street, 33.58 feet;
thence leaving said South right of way line of Park Street, NOoo02'48"W, 29.37 feet;
thence N89057' 12"E, 46.67 feet; thence SOoo02'48"E, 29.37 feet, to a point of
intersection of the East right of way line of Ewing Avenue and said South right of way
line of Park Street; thence SOool7'56"E, along said East right of way line of Ewing
Avenue, 65.30 feet to a point on the centerline of a vacated alley as recorded in O.R.
Book 6228, Page 1131, of said Public Records; thence N89057' 12"E, along said
centerline, 139.40 feet; thence SOoo16' 17"E, 199.70 feet, to the North right of way line of
Pierce Street; thence S89057' 12"W, along the said North right of way line of Pierce
Street, 179.76 feet to the intersection of the West right of way line of Ewing Avenue,
thence NOo020'23"W, along the said East right of way line of Ewing Avenue, 36.45 feet;
thence S84010'05"W, 57.03 feet, thence N05049'55"W, 126.00 feet; thence
N23029'22"W, 8.83 feet, thence S66030'38"W, 4.40 feet; thence N23029'22"W, 126.00
feet; thence N66030'38"E, 46.67 feet; thence S23029'22"E, 34.41 feet to a point on the
said South right of way line of Park Street; thence N89057' 12"W along said South right
of way line of Park Street, 30.12 feet to the point of beginning. (containing 59327.88
S.F., M.O.L.)
.
.
S:\ENGIN\Projects\Downtown Pond - #98-0 lI6-EN\legals for plat and lease. doc
fIO
~
co,
f
vi
~
o
~
E
:i
Q.
....
on
..
...
c.;
o
I
~
't>
ci
o
o
o
~
f
:!l
r::
III
"
r::
!'!
~
'C
~
a:
~
'0'
cl:
't>
~
W
.
PARK SlREET
2
1-
1
I
I
-1
LOT 3
"MAGNOUA PARle'
P.B. I, PC. 70
BLOCK 3
.
.
I
.-L
LOT 19
P ARK STREET
.--
'MRS. SARAH McllULI..EN'S SUBOI\II~ION
P.B. 1, PG. 41
BLOCIe 5
NORTH
VAC. ALLEY OR 6228, PC 1131
..-..-..-..-.
"A REPLA T FOR PURPOSE OF SHDY.INO AU.EY
AT NORTH SlOE OF BLQCI(S . A' AND 'e"
OF COACHMAN HEIGHTS"
P .B. 20, PO. 28
BLOCK A
PIERCE SlREET
60' R/W OR 1437, PG 524
LOT 18
LOT 17
LOT 17
LOT 18
LOT 18
LOT 19
PARCEL 2
Note: This is not
Scale: l' = 60'
PIERCE STREET
a survey.
60' R!W OR 1437. PC 524
LOT 20
~
..-..-..-
~.._.._.
LOT 5
+
LOT 20
.
Parcel 3
.
Begin at the Northwest comer of Lot 9, Tack and Warren Subdivision, as recorded in Plat
Book 21, Page 48, of the Public Records of Pine lIas County, Florida, also being a point
on the South right of way line of Park Street; thence N89057' 12"E along said South right
of way line, 160.00 feet; to the Northeast comer of Lot 11, of said Tack and Warren
Subdivision, also being a point on the West right of way line of Prospect Avenue; thence
SOool7'56"E, along said West right of way line of Prospect Avenue, 110.00 feet, to the
Southeast comer of said Lot 11; thence S89057' 12"W, 110.00 feet to the Southwest
comer of Lot 10 of said Tack and Warren Subdivision; thence SOool7'56"E, 10.00 feet;
to a point on the centerline ofa vacated alley as recorded in O.R. Book 4616, page 1440,
of said Public Records; thence S89057' 12"W, along said centerline, 50.00 feet; thence
NOool7'56"W, 10.00 feet, to the Southwest comer of said Lot 9; thence continue
NOool7'56"W along the West line of said Lot 9, 110.00 feet to the point of beginning.
(containing 18100.18 S.F., M.O.L.)
.
S:\Projects\Downtown Pond - #98-0116-EN\legals for plat and lease. doc
.fJIJ
~.. _.. _I. - .,_1. _. VACIA~Y""'.PC'::.. ~~. ..0'
LOT3 I (--I-~r-~
L---1 I I
. .
. .
I I
. LOT 16 . LOT 15
. .
I I
. .
. .
I I
a survey. .
. .
I L
1
~
NORTH
LOT 4
T
I
I
I
LOT 5
LOT 2
I
"-"-"-"l
I
LOT 1
---1 .
.
u
L
_I
P.O.8. PARCEl. .J
NrI CORNCR Of" LOT I.
TACK ~ WARREN SUB.
LOT 7
P ARK STREET
-I
LOT 6 I
I
I
LOT 8
LOT 12
LOT 17
t-..-..-..-..
I
t-..-..-..-..
I
L
Rev. 11/29/01
LOT 13
PARCEL 3
Note: This is not
Scale: l' = 50'
1-
LOT 14
_I
r"IIlr-,....,...~ ,...,.
.
1
~
<
I-
U
I.lJ
g,
o
~
a.
.
~
EXHIBIT A-I
Legal Descriptions
and Sketches for
parcel: IA
ParcellA
Begin at the Southeast comer of Lot 14, Block 1, Magnolia Park, as recorded in Plat
Book 1, Page 70 of the Public Records of Hills borough County, Florida, of which
Pinellas County was once a part; thence N00017'56"W along the East line of said Lot 14
and Lot 3, Block 1, of said Magnolia Park, 235.00 feet to a point on the apparent South
right of way line of Cleveland Street as described by the survey map prepared for the City
of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/01; thence
N89057'12"E, along said apparent South right of way line of Cleveland Street 270.00 feet
to ~ intersection of the East line of Lot 8, Block 1, of said Magnolia Park and the West
right of way line of Prospect Avenue; thence SOOo 17' 56"E along said West right of way
line of Prospect Avenue 97.87 feet; thence leaving said West right of way line East, 14.49
feet; thence South, 30.00 feet; thence West, 14.33 feet to a point on said West right of
way line of Prospect Avenue; thence SOOl7'56"E, along said West right of way line of
Prospect Avenue 107.14 feet to the Sc .l1west comer of Lot 9, Block 1, of said Magnolia
Park; thence S89057' 12"W, along tr 8.Irth right of way of Park Street, 54.00 feet to the
Southeast comer of Lot 10, Block 1 of said Magnolia Park; thence NOool7'56"W, along
the East line of said Lot 10, 132.50 feet to the Northeast comer of said Lot 10, thence
S89057' 12"W, 202.00 feet; thence SOool7'56"E, 132.50 feet to the North right of way
line of Park Street; thence S89057' 12"W along said North right of way line of said Park
Street 14.00 feet to the point of beginning. (Containing 37102.27 S.F., M.O.L.)
S:\Projects\Downtown Pond - #98-0116-EN\legals for plat and lease. doc
tt!O
~
NORTH
LOT 2
I
LOT 15
P.:O.8. PARCEL 1A
1_ SE CORHCR OF LOT 14-
rOCK '0 MAGM>UI_
LOT 3
-I"
LOT 13
LOT 14
CLEVELAND STREET
S.R. 60
LOT 12
LOT 11
_I
PARK STREET
PARCEL 1 A
Note: This is not a survey.
Scale: l' = 50'
LOT 10
S89'S7'12"W
54.00'
~
<
I-
U
I.lJ
a.
I/)
o
0::
a.
LC
~.. .
LO'
REV 11/29/01
~
EXHIBIT A-2
Legal Descriptions
and Sketches for
parcel: IB
Parcel 1 B
Begin at the Southeast comer of Lot 8, Block 2, Magnolia Park as recorded in Plat Book
1, Page 70, of the Public Records of Hills borough County, Florida, of which Pinellas
County was once a part, thence N89051' 12"E along the South line of said Lot 9 and Lot
1 0, Block 2, of said Magnolia Park, 101. 90 feet, to the Southeast corner of said Lot 10;
thence SOool1'56"E, along the East line of Lot 11, Block 2 of said Magnolia Park,
132.50 feet to the southeast corner of said Lot 11; thence continue SOool1'56"E, 8.16
feet; thence S89042'04"W, 21.42 feet; thence SOoo02'48"E, 22.38 feet; thence
S89051'12"W, 46.67 feet; thence SOoo02'48"E, 29.37 feet to the South right of way line
of Park Street; thence S89051' 12"W, along the said South right of way line of Park
Street, 63.71 feet; thence N23029'22"W, 34.41 feet; thence S66030'38"W, 14.94 feet;
thence N23029'22"W, 11.89 feet; thence N83053 'OO"W, 188.67 feet, thence
N06001'OO"E, 3 .23 feet to the North right of way line of said Park Street; thence
S89051' 12"W, along said North right of way line of Park Street, 5.08 feet; thence
S81018'37"W, 157.33 feet; thence N08041 '23"W, 46.67 feet; thence N81018'37"E, 8.85
feet to the East right of way line of Prospect Avenue;' thence NOool1'56"W, along the
said East right ofline of Prospect Avenue, 20.22 feet; thence S81 oI8'37"W, 1.05 feet;
thence N08041 '23"W, 46.67 feet; thence N81 018'37"E, 7.93 feet to the said East right of
way line of Prospect Avenue; thence NOool7'56"W, along said East right of way line of
Prospect Avenue, 143.79 feet to a point on the apparent South right of way line of
Cleveland Street as described by the survey map, prepared for the City of Clearwater by
Florida Design Consultants, job number 212-07, dated 04/03/01; thence N89051' 12"E,
408.00 feet along said apparent South right of way line of Cleveland Street to the West
line of said Lot 9; thence SOoo17'56"E, along the West line of said Lot 9, 102.50 feet, to
the point of beginning. (containing 120739.82 S.F., M.O.L.)
S:\ENGIN\Projects\Downtown Pond - #98-0 116-EN\legals for plat and lease. doc
/~
CLEVELAND STREET
S.R. 60
~
NORTH
-,
LOT 9 LOT 10
P.D.S. ~ARCEL 1S
~ CO/fNOf 'Dr lOT 4
atlCIC ~ ~ _
I
PARK STREET
1
-I
I
PARCEL 18
Note: This is n,ot
Scale: l' = 60
-,
a surveyo
~
EXHIBIT A-3
Legal Descriptions
and Sketches for
parcels:
2&3
Parcel 2
Begin at the Northwest corner of Lot 5, Block 3, Magnolia Park, as recorded in Plat Book
1, Page 70, of the Public Records of Hills borough County, Florida, of which Pinellas
County was formerly a part, also being a point on the South right of way line of Park
Street; thence N89051'12"E, along said South right of way line of Park Street, 33.58 feet;
thence leaving said South right of way line of Park Street, NOoo02'48"W, 29.37 feet;
thence N89057'12"E, 46.67 feet; thence SOoo02'48"E, 29.37 feet, to a point of
intersection of the East right of way line of Ewing Avenue and said South right of way
line of Park Street; thence SOool1'56"E, along said East right of way line of Ewing
Avenue, 65.30 feet to a point on the centerline of a vacated alley as recorded in O.R.
Book 6228, Page 1131, of said Public Records; thence N89051'12"E, along said
centerline, 139.40 feet; thence SOoo16' IT'E, 199.70 feet, to the North right of way line of
Pierce Street; thence S89051' 12"W, along the said North right of way line of Pierce
Street, 179.76 feet to the intersection of the West right of way line of Ewing Avenue,
thence NOo020'23"W, along the said East right of way line of Ewing Avenue, 36.45 feet;
thence S84010'05"W, 57.03 feet, thence N05049'55"W, 126.00 feet; thence
N23029'22"W, 8.83 feet, thence S66030'38"W, 4.40 feet; thence N23029'22"W, 126.00
feet; thence N66030'38"E, 46.67 feet; thence S23029'22"E, 34.41 feet to a point on the
said South right of way line of Park Street; thence N89051'12"W along said South right
of way line of Park Street, 30.12 feet to the point of beginning. (containing 59327.88
S.F., M.O.L.)
S:\ENGIN\Projects\Downtown Pond - #98-0 116-EN\legals for plat and lease. doc
~
.~
I
~
~
o
~
E
:it
ll.
.....
ltl
"i
~
S
~
~
t
ci
o
o
o
~
o
~
f
:l2
Ii
"
r::
!!
~
l
0:
tj
"
'0'
Q.
't>
r::
~
Iii
PARK STREET
2
1-
1
I
I
LOT 3
"NAGNOUA PARK"
P.B. I, PO. 70
BLOCK 3
I
.-1
LOT IS
P ARK STREET
.--
"NRS. SARAH NcNULl.fN'S SUBOl"'~ON
P.B. I, PO. 41
BLOCK 5
NORTH
VAC. ALLEY OR 6228, PO 1131
"A REPLAT fOR PURPOSE Of SHOVtlNO AU.EY
AT NORTH SlOE Of BLOCKS " A." AND "e"
Of COACHMAN HtlGHTS"
P.B. 20, PO. 28
BlOCK A
PIERCE STREET
80' R/W OR 1437, PG 524
-L
LOT 18
LOT 17
LOT 17
LOT 18
LOT 18
LOT 19
PARCEL 2
Note: This is not a survey.
Scale: l' = 60'
PIERCE STREET
80' R/W OR 14J7, PG 524
LOT 20
.._.._..~
~
LOT 20
+~
LOT 5
Parcel 3
Begin at the Northwest comer of Lot 9, Tack and Warren Subdivision, as recorded in Plat
Book 21, Page 48, of the Public Records of Pine lIas County, Florida, also being a point
on the South right of way line of Park Street; thence N89051' 12"E along said South right
of way line, 160.00 feet; to the Northeast comer of Lot 11, of said Tack and Warren
Subdivision, also being a point on the West right of way line of Prospect Avenue; thence
SOool1'56"E, along said West right of way line of Prospect Avenue, 110.00 feet, to the
Southeast comer of said Lot 11; thence S89051'12"W, 110.00 feet to the Southwest
comer of Lot 10 of said Tack and Warren Subdivision; thence SOool1'56"E, 10.00 feet;
to a point on the centerline of a vacated alley as recorded in O.R. Book 4616, page 1440,
of said Public Records; thence S89051' 12"W, along said centerline, 50.00 feet; thence
NOool7'56"W, 10.00 feet, to the Southwest comer of said Lot 9; thence continue
NOo011'56"W along the West line of said Lot 9, 110.00 feet to the point of beginning.
(containing 18100.18 S.F., M.O.L.)
S:\Projects\Downtown Pond - #98-0116-EN\legals for plat and lease. doc
IJ
f-.. -" _I., -. '1-1.. _., _I.. _.. _I.. _" -::-.
I . VAC. ALLEY OR 4618. PC 1440 ~ 8 .
"'l . 50,00
i (.. -.. -.. ~.. - .~~.. ~
L---1 I I
. .
. .
I I
. LOT 16 . LOT 15
. .
I I
. .
. .
I I
a survey. .
. .
I L
1
u
~
NORTH
P.O.B. PARCEL .J
NW CORNCR Of" LOT I,
TACK ~ WARREN SlJIl.
T
-I
LOT 6 I
I
I
LOT 7
LOT 4
LOT S
LOT J
LOT 2
I
"-"-"-"l
I
LOT 17
LOT 1
PARCEL 3
Note: This is not
. Scale: l' = 50'
---1.1_
L
_I
LOT 8
"'....'""-.....P""' .....,.
1
P ARK STREET
LOT 12
_I
t-..-..-..-..
I
t-..-..-..-..
I
L
Rev. 11/29/01
LOT 13
LOT 14
~
<
I-
U
I.lJ
g,
o
0::
a.
~
-,
~
o
z
l!'
I EXHIBIT B
iii
---</'-
C L E 1j E I ^ II II
f
" II n I{
SJTB- PL^f:l
() F T II ~
~
CLEARWATER
CENTER CITY PROJECT
n R IJ r; ~ 1.1. 11 ^ L 1<. ~. I ^
~. I-I I:: II I T T (; -, 1 I) Ie 'I I' U I' E n
1...1 r
1 II r.:: Fl ^ 1_ f( C rl M " ^ r'.1
P.
I -r I: f1 !l /\ t J I~ ^ "1
11.1 r;
V I I I
^ GEL L",(~\L
~@/
~
I I
~ T n F. F. J
p n 0 J E C T S U t" M ^ II Y
:';1'(; II!) rl I.'U 1 (MH," 11011111 ur r'...nl\ SIIIE!:!!
~ I'll f, " ro <;
7. rr(l,U! I",I'~:"_____ (j~
"I '-MIIWl!, 1.1.1
!> f- C r II) II Illl ? (~IIE" :;'_'lJ III (I!- PAliK !i I IlEt; I J
, I' II .", ~; E S
I:~l or t Ii 'I!;
I',\IWI'I" II:'
'"
'"
l. ^ I( E
r I E n (: I,
sin E E -r
Rl-~ANE I ~N
] 11 t 11 e I~ '1) I~ k
. . ,
V I J~ _fJ A(lJ~~
EXHIBIT "C"
SPECIAL WARRANTY DEED
COMMUNITY REDEVELOPMENT AGENCY, also known as THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, a body politic and
corporate of the State of Florida created pursuant to Part III, Ch. 163 Fla. Stat., whose
address is 112 S. Osceola Avenue, Clearwater, Florida 33756, hereinafter called the
GRANTOR, for and in consideration of Ten and 00/100 Dollars ($10.00), and other
valuable consideration the receipt of which is hereby acknowledged, does bargain, sell,
convey and grant unto THE BALK COMPANY, INC., a Florida corporation, whose
address is , hereinafter called The GRANTEE,
the federal tax identification number of which is: , its successors
and assigns forever, the real property, situate, lying and being in Pinellas County,
Florida, more particularly described in EXHIBIT "A" attached hereto.
TAX PARCEL 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 , 2002.
[SIGNATURE PAGE FOLLOWS]
PREPARED BY AND RETURN TO:
C-1
ATTEST:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER
By:
Executive Director
Chairman
WITNESSES (as to all signatures):
Printed Name:
Printed Name:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing SPECIAL WARRANTY DEED was acknowledged before me this
day of , 2002, by BRIAN J. AUNGST, as Chairman, and
RALPH STONE, as the Executive Director of the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER, a body politic and corporate, on behalf of
said entity. Such persons are personally known to me or presented
as identification.
Notary Public, State of Florida
My Commission Expires:
My Commission Number:
C-2
.
EXHIBIT "0"
MEDITERRANEAN VILLAGE
PUBLIC WORKS INFRASTRUCTURE
IMPROVEMENTS SCHEDULE
Public Works Administration will accomplish the following items:
1. Vacate Park Street from Ewing Avenue to Prospect Avenue, including one
small parcel east of Ewing Avenue.
2. Vacate Ewing Avenue from Pierce Street to Park Street.
3. Vacate three parcels on Prospect Avenue north of Park Street.
4. Remove asphalt pavement and base and City water line from vacated Park
Street.
5. Remove asphalt pavement and base from vacated Ewing Avenue.
. 6. Coordinate undergrounding of other utilities (Florida Power, Verizon
Telephone) in vacated Park Street and Ewing Avenue.
7. Relocate sanitary sewer on Ewing Avenue and Park Street east of Ewing
Avenue.
8. Construct downtown lake.
9. Construct downtown lake park amenities.
The above items will be completed based on the following schedule:
.
Item Completion
Date
Vacate Park Street 11/15/01
Vacate Ewing Avenue 11/15/01
Prospect Avenue Vacations 01/10/02
Remove Asphalt and Water Line from Park Street 03/15/02
Remove Asphalt from Ewing Avenue 03/15/02
Coordinate Other Utility Undergrounds 04/10/02
Relocate Sanitary Sewer 03/15/02
Construct Downtown Lake 03/31/03
Construct Downtown Lake Amenities 03/31/03
.~
Exhibit E
LICENSE AGREEMENT
THIS LICENSE AGREEMENT, made and entered into this ~ day of
\-{A-~I4- ,2002, by and between the COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA (CRA), a public body corporate and politic
of the State of Florida, created pursuant to Part III, Chapter 163, F.S., hereinafter
referred to as "Licensor," and THE BALK COMPANY, INC., hereinafter referred to as
"Licensee":
WHEREAS, Licensor is the owner of the fee simple title to the area described in
Exhibit 1 and hereinafter referred to as the "Premises"; and
WHEREAS, Licensor is willing to grant a license to Licensee to use the Premises
for the purposes stated in this agreement;
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. The term of this agreement is for 120 days from the Effective Date of the
Agreement for Development and Disposition of Property (Mediterranean Village in the
Park) between Licensor and Licensee. Reference to the Executive Director throughout
this agreement refers to Licensor's Executive Director or designated agent. The term
"Licensor" refers to the CRA and any act to be taken by the Licensor under this
agreement must be taken by the CRA Trustees.
{)O
2. The Licensor may cancel this agreement at any time by giving 5 days
prior written notice to the Licensee, or any of its agents. This right of termination is to
be considered in addition to the right of termination set out in this agreement.
3. The Licensee shall have the right to place and maintain a temporary sales
office facility for the purpose of marketing the construction project for the Mediterranean
Village in the Park. Any other use of the premises described is prohibited unless
specifically authorized by Licensor.
4. The Licensee is responsible for the cleanliness and maintenance of the
premises.
5. The hours of operation for the authorized use shall be as agreed to
between the parties.
6, The Licensee hereby covenants and agrees to pay all costs associated
with the maintenance of the premises and any improvements thereon necessary for
such use.
7. The Licensee hereby covenants and agrees to make no unlawful,
improper, or offensive use of the Premises and shall meet all relevant code
requirements. Licensee shall not permit any other business to be operated in or from
the Premises. Licensee further covenants and agrees not to assign, pledge,
hypothecate, or sublet this agreement in whole or in part. This paragraph shall be
construed to include a prohibition against any assignment or subletting by operation of
law.
80 Licensee agrees that it will promptly pay all ad valorem real property taxes
and personal property taxes that may be assessed against the Premises during the
2
~
term of this agreement. Licensee further agrees that it will pay any other taxes,
including but not limited to, licenses and permits relating to the operation of the
business conducted on the Premises, which are required by law,
9. Licensee hereby covenants and agrees to pay all bills for electrical
current, gas, water, heat, refuse collection, and other services to the Premises when
due.
10. Licensee is not authorized to make any structural improvements or
changes to the premises unless expressly agreed to in writing by Licensor.
11, Licensee will be responsible for picking up and disposing of all trash,
garbage, and other debris, whether or not initiated from the sales of the premises.
Licensee is authorized to place trashcans in the immediate area of the Premises, said
trashcans to be maintained by the Licensee.
12. Licensee agrees to indemnify and hold Licensor and its employees
harmless from and against any and all claims, demands, causes of action or lawsuits of
whatever kind or character arising directly or indirectly out of this agreement and/or
performance hereof. This indemnity clause includes, but is not limited to, claims,
demands, causes of action or lawsuits for damages or injuries to goods, wares,
merchandise and property and/or for any bodily or personal injury or loss of life in, upon
or about the Premises or the surrounding premises the Licensee is required to maintain
or which the Licensee uses in connection with the business operated at, on or from the
Premises. All personal property, including trade fixtures, in the Premises shall be at the
risk of Licensee, and Licensor shall not be liable for any damage to such property
arising from any cause. Licensee agrees to investigate, handle, provide defense for and
3
M
defend any such claims, demands, causes of action or lawsuits at its sole expense and
agrees to bear all other costs and expenses related thereto, even if the claim, demand,
cause of action or lawsuit is groundless, false or fraudulent.
13. Licensee shall at its own expense purchase or maintain during the term of
this agreement, the insurance coverage set out below:
(1) Property Insurance - (Real property including improvements and/or
additions).
(a) Form - All Risk Coverage.
(b) Amount of Insurance - The full insurable value on replacement cost
basis.
(c) The CRA, as Licensor, shall be named as an additional insured.
(2) Comprehensive General Liability - Coverage must be afforded on
a form no more restrictive than the latest edition of the Comprehensive General
Liability Policy filed by the Insurance Services Offices and must include:
(a) Minimum limits of $1,000,000 per occurrence combined single
limits for Bodily Injury Liability, Personal Injury, and Property Damage
Liability.
(b) Premises and/or operations.
(c) Independent contractorso
(d) Products and/or completed operations.
(e) Personal injury coverage with employee and contractual exclusions
removed, including coverage for liability resulting from the dispensing of
4
;rC
alcoholic beverages, if Licensee at any time during the term of this
agreement obtains a license to serve any type of alcoholic beverages.
(f) The eRA, as Licensor, shall be named as an additional insured.
14. If at any time during the term of this agreement, the premises or any
improvement is damaged or destroyed, Licensee agrees to immediately repair or
remove damaged improvements and restore premises to its original condition at the
Licensee's risk and expense.
15. Licensee shall secure prior written approval from Licensor for
modifications or remodeling of existing facilities or for the construction of any new
facilities,
16. Licensee shall, at its expense, at all times during the terms of this
agreement keep the Premises and all improvements and facilities thereon in good
order, condition, and repair. It is specifically understood by Licensee that the Licensor
has the right to inspect the premises and improvements at any time to ensure that the
premises and improvements are indeed in good order, condition, and repair. Upon the
termination or expiration of this agreement, Licensee shall repair any and all damages
to the premises.
17. Upon the termination or expiration of the agreement for whatever cause,
the Licensee shall have the privilege at its own expense of removing its equipment,
signs, insignia, and other indicia of its tenancy or use.
18. Licensee agrees to indemnify and save harmless the Licensor by reason
of any mechanic's lien which may be asserted as a claim against the property, and to
furnish Licensor a good and sufficient bond signed by a reputable bonding company
5
fJl'
doing business in Florida, which bond shall be in an amount equal to 100 percent
(100%) of the cost of construction of the contemplated improvements to the demised
premises.
19. Notices hereunder shall be given only by registered letter and shall,
unless otherwise expressly provided, be deemed given when the letter is deposited in
the mail, postage prepaid, addressed to the party for whom intended at such party's
address first herein specified or to such other address as may be substituted therefore
by proper notice hereunder. Notice to be provided to Licensor and Licensee as stated
below:
As to Licensor:
Community Redevelopment Agency
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
As to Licensee:
The Balk Company, Inc.
~~A)J1 Ale
.9. A (L. 31-23<.,
20. No sign of any type will be posted, erected, hung or otherwise placed in
view of the general public so as to advertise any product or identify the premises unless
permitted by the City of Clearwater Code of Ordinances, as they now exist or as they
may be amended, and unless authorized and approved by the City.
21. In the event the Licensor retains an attorney to enforce any of the
provisions of this agreement or renewals of or addenda to this agreement, or to effect
the enforcement of any legal right of the Licensor against the Licensee, the Licensee
6
;tJ
agrees to pay the Licensor all costs of said enforcement reasonably incurred, including
court costs and reasonable attorney's fees.
IN WITNESS WHEREOF, this agreement is executed as of the date first above
written.
Licensor:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
By:
Approved as to form:
t)1-/
Pamela K. Akin
City Attorney
Attest:
Licensee:
THE BALK COMPANY, INC.
~
7
AO
EXHIBIT A
8
Exhibit 1
ParcellA
Begin at the Southeast corner of Lot 14, Block 1, Magnolia Park, as recorded in Plat
Book 1, Page 70 of the Public Records of Hills borough County, Florida, of which
Pinellas County was once a part; thence NOOo IT 56"W along the East line of said Lot 14
and Lot 3, Block 1, of said Magnolia Park, 235.00 feet to a point on the apparent South
right of way line of Cleveland Street as described by the survey map prepared for the City
of Clearwater by Florida Design Consultants, job number 212-07, dated 04/03/01; thence
N8905T 12"E, along said apparent South right of way line of Cleveland Street 270.00 feet
to a intersection of the East line of Lot 8, Block 1, of said Magnolia Park and the West
right of way line of Prospect Avenue; thence SOooIT56"E along said West right of way
line of Prospect Avenue 97.87 feet; thence leaving said West right of way line East, 14.49
feet; thence South, 30.00 feet; thence West, 14.33 feet to a point on said West right of
way line of Prospect Avenue; thence SOOIT56"E, along said West right of way line of
Prospect Avenue 107.14 feet to the Southwest comer of Lot 9, Block 1, of said Magnolia
Park; thence S89057' 12"W, along the North right of way of Park Street, 54.00 feet to the
Southeast comer of Lot la, Block 1 of said Magnolia Park; thence NOOo 11' 56"W, along
the East line of said Lot 10, 132.50 feet to the Northeast corner of said Lot 10, thence
S8905T12"W, 202.00 feet; thence SOoolT56"E, 132.50 feet to the North right of way
line of Park Street; thence S8905T 12"W along said North right of way line of said Park
Street 14.00 feet to the point of beginning. (Containing 37102.27 S.F., M.O.L.)
S:\Projects\Downtown Pond - #98-01 16-EN\legals for plat and lease.doc
,/)'0
~
NORTH
LOT 2
I
LOT 15
P.:O.8. PARCEL 1A
1_ SE CORNCR or LOT 14,
rOCK'o~-
LOT 3
-I'
LOT 14
LOT 12
_I
CLEVELAND STREET
S.R, 60
LOT 11
PARK STREET
PARCEL 1 A
Note: This is not a survey.
Scale: l' = 50'
LOT 10
S89'57'12"W
54.00'
u
~
<
I-
~2 ~
&i f}j
o
~
a.
~.. .
lO'
REV 11/29/('1
~
EXHIBIT F
INFRASTRUCTURE IMPROVEMENTS
COMPLETION CERTIFICATE
[Mediterranean Village in the Park]
This Infrastructure Improvements Completion Certificate ("Certificate") is made
this ~ day of J.\A-f(Q..~ , 2002, by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public
body corporate and politic of the State of Florida (the "Agency"), whose address is 112
S. Osceola Avenue, Clearwater, FL 33756, and THE BALK COMPANY, INC., a Florida
corporation (the "Developer"), whose address iS~o~,.;lJ7'kj ~c:m~ A- '3~l.../k .
.
This Certificate pertains to an Agreement for Development and Disposition of
Property (Mediterranean Village in the Park), by and between the Agency and the
Developer, dated as of _~A-eL \-\- \-.{ , 2002 (the "Development Agreement"),
which provides, among other things, for the sale of property within a project site as
described in Exhibit "A" attached hereto and made a part hereof and the granting of
certain easements (the "Property Site") for the development and construction of the
Infrastructure Improvements and the Mediterranean Village in the Park Project, as
same are defined in the Development Agreement.
As provided in Section 5.05 of the Development Agreement, the construction
and installation of the Infrastructure Improvements have been completed substantially
in accordance with the requirements of the Development Agreement and such
improvements are substantially complete. The parties hereto acknowledge and agree
that such Infrastructure Improvements have been so completed and have executed this
Certificate as conclusive determination of such completion and satisfaction of the
Agency's obligation under the Development Agreement to construct and install the
Infrastructure Improvements.
A copy of the fully-executed Development Agreement is on file with the City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue,
Clearwater, Florida, which is available for review and copying by the public. A copy of
the Infrastructure Improvements Plans and Specifications is on file with the City
Engineer, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue,
Clearwater, Florida, which is available for review and copying by the public.
~
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of the B!i day of 7l\wL~ , 2002.
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
By:
ATTEST:
By: l)tM:5 ~
Ralph ~ Executive Director
THE BALK COMPANY, INC.
By: (!}wQ~-as
,
Its ~5.f,ADRl.rr
(SEAL)
ATTEST:
By: ~V.l?~)
, as
Its Secretary
STATE OF FLORIDA
COUNTY OF PINELLAS
'f-/-
\-'\ _ The I foregoing instrument was acknowledged before me this f' day of
, ~ ,2002, by Brian J. Aungst, Chairperson of the Community
Redevelopment Agency of the City of Clearwater, a public body corporate and politic of
the State of Florida, on behalf of the Agency. He is personally known to me or has
produced a valid driver's license as identification.
P~N~/~
Notary Public-State of Florida
Commission Number:
(SEAL)
NOTARY JlUllue ollTA'l'l! 01' I'l~
CAROlYN l 8RINK
COMMISSION. CClI34678
EXPIRE8 5/2212003
BONOEO THRU ABA 1-8SS-NOTARY1
,-;
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was aCknowled~~e me this f'llt-day of
~ ' 2002, by j"1~"-<~~ " of The Balk
Company, Inc., a Florida corporation, on behalf of the corporation. He is personally
know!} to me or has produced a valid driver's license as identification. ----
- ~~~ '!~~~
~fedfTyped 2me: 1
Notary Public-State of Florida
Commission Number:
(SEAL)
",,-:;.~rit Laura J. Burgess
f:~?"{f;;'" :;~ MY COMMISSION # CC762258 EXPIRES
~;'..J'/'L.:;<,: October 29, 2002
\~.i,~~~~" BONDeD THRU TROY fAIN INSURANCE, INC.
11"111\\\
,rJ
EXHIBIT "G"
AGREEMENT EXPIRATION CERTIFICATE
[Mediterranean Village in the Park]
Jd . This Agreement Expiration Certificate ("Certificate") is made this ~day of
A-1lC~ , ~ by and between the COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the
State of Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL
32521, and THE BALK COMPANY, INC., a Florida corporation (the "Developer"), whose
address is 2<JD &uMVf tNE'. <S~01'4 , FL .
I
This Certificate pertains to an Agreement for Development and Disposition of
Property (Mediterranean Vil~e in the Park), by and between the Agency and the Developer,
dated as of N Aa..Q \\ , 2002, (the "Development Agreement"), which
provides, among other things, for the sale of property within a project site as described in
Exhibit "A" attached hereto and made a part hereof for the development and construction of
the Mediterranean Village in the Park Project, as same is defined in the Development
Agreement.
The Development Agreement has expired in accordance with its own terms as
of _, , and is no longer of any force or effect, and that the Mediterranean
Village in the Park site is no longer subject to any restriction, limitation, or encumbrance
imposed by the Development Agreement. This Certificate has been executed by the parties to
the Development Agreement as provided in Section 17.19 thereof and constitutes a conclusive
determination of satisfactory completion of all obligations under such Agreement and that the
Development Agreement has expired, except for those matters which survive as noted above.
A copy of the fully-executed Development Agreement is on file with the City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola 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 ofthe ~ day of '1'h.u.-\..~ , .J.,oo..t".
G-l
.~
(SEAL)
ATTEST:
By: 1iJf;/J, 11 (S ~ L , as
Its: E ec ive Director
(SEAL)
ATTEST:
By:~ji
Its: Secretary
~
--: as
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
By: ~ y~
Its Chairman f ~
, as
THE BALK COMPANY, INC.
BY:~r
Its' ~- -~
, as
G-2
STATE OF FLORIDA
COUNTY OF PINELLAS
h. ...A <III ~ The foregoing instrument was acknowledged before me this j> ~day of
"~ ;tD,,:1 by Bnllvl 3. A&JMisT Chairman of the Community Redevelopment
Agency of the City of Clearwater, a public body corporate and politic of the State of Florida,
on behalf of the Agency. He is personally known to me or has produced a valid driver's
~
license as identification.
(SEAL)
NOTAA\' flUtlf.lCl.II'I'."1 '" 'LOIIIIDA
CAROL"" I. D"INK
COMMISIION' CC834e711
EXPIRES 6/2212003
BONDED THRU ABA 1-8ll8-NOTARY1
C~~~~L
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instwment was acknowledged before me this .r:;I~ay of
lTJ;/.M-~ , ~p:l.by &tu./A./ LId; _of The Balk Company, Inc., a Florida corporation,
on behalf of the corporation. He is personally known to me or has produced a valid driver's
license as identification. - --
LCUI~'-v. tJ u~61/JS->
~-~.L5~~
Printed/Type ame: -
Notary Public-State of Florida
Commission Number:
(SEAL)
"',~:i{,:'H;;",, Laura J. Burgess
{~( (~:~ ..}:~ t.:1' CCMMIS~SIOi~ iF CC762258 EXPIRES
,_."".,.~:,~ Odober 29, 2002
".:,~' 2 ,::/ BO~DED TrlP.J TROY FAJN INSURANCf, INC.
<',/ll"-'
G-3
EXHIBIT "H"
AGREEMENT TERMINATION CERTIFICATE
[Mediterranean Village in the Park]
This Agreement Termination Certificate ("Certificate") is made this ~ay of
~ Mr_~ , ~ by and between the COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the
State of Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL
32521, and THE BALK COMPANY, INC., a Florida corporation (the "Developer"), whose
address is :;:tID ~ ~. I SAt2A;DrA, ~ 'J'I23l> .
This Certificate pertains to an Agreement for Development and Disposition of
Property (Mediterranean Village in the Park Project), by and between the Agency and the
Developer, dated as of J:{~reu. ~ ' 2002 (the "Development Agreement"),
which provides, among other things, for the sale of property within a project site as described
in Exhibit "A" attached hereto and made a part hereof for the development and construction of
the Mediterranean Village in the Park Project, as same is defined in the Development
Agreement.
The Development Agreement has terminated in accordance with its own terms
as provided in Section 13.05 thereof as of , and is no longer of any
force or effect except for those provisions which expressly survive termination. This
Certificate has been executed by the parties to the Development Agreement as provided in
Section 13.06 thereof and constitutes a conclusive determination that the Development
Agreement has been terminated, the rights, duties and obligations of the parties hereto have
been terminated and released (subject to those surviving provisions) and the Mediterranean
Village in the Park is no longer subject to any restrictions, limitations or encumbrances
imposed by the Development Agreement.
A copy of the fully-executed Development Agreement is on file with the City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater,
Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of the ~ day of 'rn~ ,~L.
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
H-1
~
(SEAL)
ATTEST:
By: , as
Its: Executi e Director
(SEAL)
ATTEST:
,t;tfJ
, as
THE BALK COMPANY, INC.
By: ~ ~f
Its. ~~(-
, as
H-2
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this F~day of
~, 2dOl... by B,eIAAlJ.llcJ~sT, Chairman of the Community Redevelopment
Agency of the City of Clearwater, a public body corporate and politic of the State of Florida,
on behalf of the Agency. He is personally known to me or has produced a valid driver's
license as identification.
(SEAL)
~~ o't.~
Printed/T ed Name:
NOTARY IIUBUC. BTAT! 0' FlORUMotary Public-State of Florida
CAROLYN L BRINK
COMUISSION.CC834878 Commission Number
EXPIRES 5/2212003 .
BONDED THRU ASA 1-888-NOTARY1
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ~ day of
l1h/1",,~ , ~ by~ If/-UA.-- of The Balk Company, Inc., a Florida corporation,
on behalf of the corporation, He is personally known to me or has produced a valid driver's
license as identification. -- --
/) (SEAL)
La...u~~' pu~t; eoS :i
~~---- L2. ~~A4<~
Printed/Typed ~e: ,7'
Notary Public-State of Florida
Commission Number:
l.c,\,_lrd J. I:r'..lrgess
",','" ".,~;ni\: # CC;62258 EXPIRES
r :\1 ." II' ",l~ '01' 'ooJ'.
" ~ J' ?Ci(l"~.8r 29, ~~~;ANC~ INC
:C:,Cl,D ,dnJ ",,); fAIN
H-3
AO
#I f'AG[S ...~O"~-___
AGel # ~O
CHG AMT ____
GK AMT ~___
R'EC-- r~ -
os DR219
DS
I~J~
FEES
I.m
PIC
REV
TOTAL tg.-
&.
IL
,
02- 1294 1 1 APR- 5-2002 9: 40PM
PINELLAS CO BK 11932 PG 1259
111I1111I111111I1111111111111111111111111111~IJm_________
MEMORANDUM OF DEVELOPMENT AGREEMENT
[Mediterranean Village in the Park]
EXHIBIT I
This Memorandum of Agreement for Development and Disposition of Property
("Memorandum") is made this ~ day of .idWJ1 , 2002, by and between the
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER,
FLORIDA, a public body corporate and politic of the State of Florida (the "Agency"), whose
address is 112 S. Osceola Avenue, Clearwater, FL 32521, and THE BALK COMPANY,
INC" a Florida corporation (the "Developer"), whose address IS
:Jq,) (J-1)&>1WJJ At) S~A, FG
This Memorandum pertains to an Agreement for Development and Disposition
of Property (Mediterranean Village in the Park), by and between the Agency and the
Developer, dated as of J"\f.\-l~w.. j . , 2002, (the "Development Agreement"),
which provides, among other things, for the sale of property within a project site as described
in Exhibit "A" attached hereto and made a part hereof for the development and construction of
the Mediterranean Village in the Park Project, as same is defined in the Development
Agreement.
The Development Agreement is incorporated herein and made a part hereof by
reference as fully as though it were set forth herein in its entirety. It is the intention of the
parties to hereby ratify, approve and confirm the Development Agreement as a matter of
public notice and record. Nothing herein shall in any way affect or modify the Development
Agreement, nor shall the provisions of this Memorandum be used to interpret the Development
Agreement. In the event of conflict between the terms of this document and those contained in
the Development Agreement, the terms in the Development Agreement shall control.
A copy of the fully-executed Development Agreement is on file with the City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater,
Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affIxed as of the 8~ day of '1h~ , 2002.
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
By:
Its Chairman
I-I
, as
RETURN 10:
CITY CLERK
~OST OFFICE BOX 4748
CLEARWATER, FL 33758.4748"
;QO .,
(SEAL)
ATTEST:
B~~: l:l!J~M;:tto~~ ' as
(SEAL)
ATTEST:
BY~~
Its: Secretary
/I(}
, as
THE BALK COMPANY, INC.
By: d).it~&
Its~
1-2
o
'"T1
'"T1lJ
. ~
:;OZ
PlPl
or
, r
m:D
A (I)
-0
-0
lOC
WZ
I'I}-I
-<
lJ
I Gl'"T1
r
-:D
I'I}.
, m
.0
, as
#l
.
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this f'/L day of
~ ,2002, by 8~11W cr. ~IJN&rr , Chairman of the Community Redevelopment
Agency of the City of Clearwater, a body corporate and politic of the State of Florida, on .
behalf of the Agency. He is personally known to me or has produced a valid driver's license
as identificationo
(SEAL)
NOTARY PUBLIC. BTATE OF FLORIDA
CAROLYN L BRINK
C~ISSlON . CC834678
EXPIRES 5/2212003
BONDED THRU ASA 1-888-NOTARY1
Pri~~!'~
Notary Public-State of Florida
Commission Number:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ~ day of
mt2A/A , 2002, by ~L<L~ L0~~ of The Balk Company, Inc., a Florida
corporation, on behalf of the corporation, He is personally known to me or has produced a
valid driver's license as identification. - - --
. Lo-vtkJO Ilu%er..s
CX?t:V~ i' Lr~
Printed/Typed N a e:
Notary Public-State of Florida
Commission Number:
(SEAL)
/:.'N'X"/.::~',
,,,'/..~";~/;o, laura 1. Burgess
€~Lf[r'L. i:1 1\, (COiviM!SSION # CC762258 EXPIRES
~;~1.~'TIl1'1)l October 29, 2002
"'l"<liI\I\" BONDED TH.~U TROY FAiN INSURANCE, INC.
1-3
o
'"TJ
'"TJ-o
;oz
f'lf'l
or
r
rn:D
AU)
_0
_0
(DC
wz
I\l-l
-<
-0
G)'"TJ
r
_:D
I\l.
(J)
Exhibit J
Reports
1. Geotecnical Data Sheet for Town Lake Project by P.S.I. dated October 1995;
2. Phase I Environmental Site Assessment (Property A) by IT Corporation dated March
1999;
3. Phase I Environmental Site assessment (Property B) by IT Corporation dated March
1999;
4. Phase I Environmental Site assessment (Property C) by IT Corporation dated March
1999;
5. Phase I Environmental Site assessment (Property D/901-909 Park Street) by IT
Corporation dated March 1999;
6. Phase I Environmental Site assessment (Property E) by IT Corporation dated March
1999;
7. Phase I Environmental Site assessment (Property F/900 Pierce Street) by IT
Corporation dated March 1999;
8. Phase I Environmental Site assessment (property G) by IT Corporation dated March
1999;
9. Phase I Environmental Site assessment (Property H) by IT Corporation dated March
1999;
10, Phase II Environmental Site Assessment (ESA) - Property A and Property B by
Dames & Moore dated June 2, 1999;
11. Supplemental Phase II Environmental Assessment - (Property D&E) by ECT dated
June 4, 1999;
12. Supplemental Phase II ESA - Property B by Dames & Moore dated September 13,
1999;
130 Report - Supplemental Groundwater Assessment - Property B by Dames & Moore
dated February 8,2000;
14. Report - Semiannual Groundwater Monitoring - Property B by Dames & Moore
dated May 17,2000;
15. Report - Semiannual Groundwater Monitoring - Property B by Dames & Moore
dated October 18,2000;
16. Hydraulic Lift Removal Report - Property B by Dames & Moore dated October
2000;
17. Tank Closure Assessment Report - Property B by Dames & Moore dated October
2000;
18. Supplemental Groundwater Monitoring - Tank Closure Assessment - Property B by
Dames & Moore dated October 27,2000;
19. Report of Geotecnical Investigations for the Town Pond Rehabilitation Project by
Parsons Engineering dated November 6, 2000;
20. Monitor Only Plan - Property B by URS/Dames & Moore dated December 2000; Site
Assessment and Remedial Action Plan - Property B by URS/Dames & Moore dated
April 2001;
21. Summary of Environmental Activities by URS/Dames & Moore dated February 20
2001;
!1>
Exhibit J
22. Summary Document: Site Assessment and Remedial Action Plan - Property B by
URS/Dames & Moore dated April 2001;
23. Summary Report of Supplemental Soil Delineation Activities - Property B by URS
dated August 2001;
24. Site Assessment Summary Letter Report - Property B by URS dated November 16,
2001 ;
25. Focused Risk Assessment - Property B by Hazardous Substance & Waste
Management Research, Inc., dated November 2001;
26. Interim Source Removal Plan - Property B by URS dated November 2001;
27. Report of Hydraulic Equipment Disposal and Assessment Report for Property D by
URS dated November 2001.
Correspondence
1. Response to FDEP Review Comments - Property B by URS dated May 15, 2001;
2. Response to FDEP Review Comments - Property B by URS dated May 25, 2001;
3. Response to FDEP Review Comments - Property B by URS dated September 4,2001;
4. Response to FDEP Review Comments (DRAFT) - Property B by URS dated November 19,
2001 (Note: This document has not yet been sent to the FDEP);
5. Subsurface Peat Layer - Property B by URS dated October 12, 2001;
6. Preliminary Opinion of Estimated Cost for the Removal of Organic Materials - Property B
by URS dated October 22,2001;
7. Project Status Report Number 1 for September 2001 ;
8. Project Status Report Number 2 for October 2001; and
90 Project Status Report Number 3 for November 2001.
hO
....----.~-----
J
---
-
URS
-----
/
8
,~Wc4
A
AS-2
1'jJ,
,1
::>
Z
W
~
''''.
8 - ~
PMW-J A~2 v t A~~ ;.. U ~t341".~' .:-:- ,t" -l...s. ,J8-<
PMW-20 - .-~!t J.
( ~ i r _________
\j/ C_.'. "G1 ....,1 r- !., N-60[1] """
\' - ~~ \'~ ~ ,l~, i A , NW:14] -!....-.:~1)\
("(,6. l H\ \ \ >~ " :! 'AJ ' A'
~.\.--4.m. ,m. )11..... '.~.. . "---' :t~~!..--"j~~~~1~"J' 'I
-+ \ ~ C.2 'C'L] C-4. ". ...iWS..1. li-5 t'.... c.~. C-7 --t:a., '.. .-1. __ 1'\
~~_.~:.J~'~~T' ... T~ - .---"i ';&" _J.. ~'. ~ --~---. !... .-.-of,
I l_L-_-1- .~ ~ A A ~ ~ ~ ~ ~J I~ ~-rtL~_-~J:=d \\
,. A.11 A-10 A.9 A-8 A-1 A-2. A.J A-4. A-5 A-6 A,7 . '. ~.
PAR K' ,
(; . / -----~
v\....\,,\\.\. k:;.~',.';! . .
, \, j .
\\\. \.\ ~'. ...----
\~- .
,,\.- /
\\\ ,:>
------
1\~1lln~1[l:lIr~U:n;illU~JJ\\IHllllll i I i\lIf1Ti1T1'
.~...... . ...--
-----...............,
EXHIBIT K
MEDITERRANEAN VILLAGE IN THE PARK
@
i....J"""'"
LEGEND
8 PERMANENT MONITOR WELL
A SOIL BORING LOCATION
c::J SOIL REMAINING WITH ARSENIC
~'kS~t~~~~:N mJl~k~~~~
,
---t.
ESTIMATED EXTENT OF
SOIL REMAINING WITH
ARSENIC
LESS THAN 1.4 mg/kg AND
GREATER THAN 0.8 mg/kg
.
EXHIBIT L
SCOPE OF WORK
SOIL REMEDIATION
PROPERTY B
901-927 CLEVELAND STREET
CLEARWATER, FLORIDA
Soil will be removed from areas on the subject property that have been impacted with
polynuclear aromatic hydrocarbons at concentrations that exceed soil cleanup target
levels established in Chapter 62-777, Florida Administrative Code. Soil will also be
removed from areas that contain arsenic at concentrations greater than 1.4 milligrams per
kilogram (half of the risk-based soil cleanup target level of 2.8 milligrams per kilogram).
Based on analytical data, soil impacted with polynuclear aromatic hydrocarbons is
limited to the southern portion of the property.
URS Corporation (URS) estimates that approximately 8,130 cubic yards (12,200 tons) of
soil will be removed from the subject property. Approximately 6,190 cubic yards (9,290
tons) of soil will be removed from the southern portion of the property. Approximately
1,940 cubic yards (2,910 tons) of soil will be removed from the northern portion of the
property. The limits of excavation are shown in Figure 1. The maximum depth of
excavation will be approximately four feet below land surface. At certain locations, the
depth of excavation will be two feet below land surface. These locations are depicted in
. Figure 1.
Excavated soil will be loaded onto trucks and transported to a thermal treatment facility
for proper disposal. Manifests and certificates of disposal will be provided.
Following excavation, confirmation soil samples will be collected for laboratory analysis.
Confirmation soil samples will be analyzed for polynuclear aromatic hydrocarbons and
arsenic, as appropriate.
Following receipt and evaluation of the confirmation soil sample analytical results, the
excavated areas will be backfilled with clean soil. Soil will be placed in one-foot lifts
and compacted in accordance with City of Clearwater requirements.
.
R:\waste\reports\200 1 \coc\propbtextexhibit.doc
,.<J
---._~_._~~--
, -.
'-,
J
-
-
URS
,
'\
I
-]
~
,or/'
-
ffi
~
LEGEND
8 PERMANENT MONITOR WELL
... SOIL BORING LOCATION
c:::J EXISTING EXCAVATION AREA
c:::J SOIL REMOVAL (0-2 FEET)
CJ SOIL REMOVAL (0-4 FEET)
----- - ~
PMW-28
V I ~L A G ~
AS.]] AS.]4
...
AS-]5
k- - ...
AS,]j _.~ AS.]2
... ~ ... ...
G,l ,f.J G'4
... '.
SW.11. ... .. ~ ...
F-1 "r2 . F.~ _ F-4'
c_
... ... ... ...
E'10\ \t9..1. ~ I, E-7
· I i' \AI \ ...".
ffittl. ~..::1<1b....J. llil,
~...T
t-C'lI -~.
... \.... ~ L
r-J I , -
... \,', .-.'. --.- j..--
I _~.12'
L1.__-L
r-.. ..
l&-{' "'"
(3;5 IG'6 ~1Q"~ - j ~ i.~ _Jf,1 5O[5J
; - L._. -r i-
:',:i ~:jf; :1
~1' E.1r I .:t--!F Er5 -.
""i ...: . _ ' Ji.. '.
0-2'1 O-~ 0,4; ~.~ . S-6 1).7 0-8 0:9
,t k~
1... m ...
B-1 B.2
... ... ... ... j~> ... ; !
C.4 ciVVS-1 cr-5 C-8 C-7 C-8 I :
... ... :.6. ... A- Ll . .
B.] B,4 B-5 B-8 B-7
'"
A-11 A,10 A-9 A-8 A,1 A.2 A-]. A-4 A,5 A.6 A,7
PARte
1JJ
,1
::>
z
UJ
~
".'
\\~~~run~1.u~\\1111IqJlII illllTI')n,
. ':.
--.......................
FIGURE 1
MEDITERRANEAN VILLAGE IN THE PARK
EXHIBIT M
LICENSE AND ESCROW AGREEMENT
STAGE II PROPERTY
This License and Escrow Agreement made and entered into this 4th day of
March, 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLEARWATER, FLORIDA a public body corporate and politic of the City
of Clearwater, Florida, created pursuantto Part III, Chapter 163 F.S., hereinafter
referred to as "CRA" and the BALK COMPANY, INC, a Florida corporation, hereinafter
referred to as "Balk."
WHEREAS, CRA is the owner of the fee simple title to the area described in
Exhibit "A" and hereinafter referred to as the Stage II Property; and
WHEREAS, CRA is willing to grant a license to Balk to enter onto and occupy the
Stage II Property for the purposes and under the conditions stated in this Agreement;
and
WHEREAS, in order to secure performance by Balk of certain obligations under
this Agreement, the parties desire to enter into this License and Escrow Agreement.
NOW, THEREFORE, it is mutually agreed as follows:
1. Backqround. The parties acknowledge that Balk has contracted to
purchase certain real property from CRA to be developed as a 100-unit residential
townhouse development known as Mediterranean Village in the Park in the Community
Redevelopment Area, consistent with that certain Agreement for Development and
Disposition of property between the parties of even date herewith, hereinafter referred
to as the Development Agreement. The parties also acknowledge that that remediation
for existing environmental conditions ("Remediation") is required to be performed and
completed by the CRA as described in the Development Agreement and the
Brownfields Site Rehabilitation Agreement and desire to allocate the expenses of
implementing the Remediation. Further, for its convenience and in order to avoid
additional cost, Balk desires to undertake certain activities, Le. peat removal and
associated backfilling, prior to closing on the Stage II Property. All such activities are at
Balk's sole cost and risk.
2. Balk obliqations. Pursuant to Section 11.01 (j) of the Development
Agreement, Balk agrees to contribute the sum of One Hundred Thirty Thousand and
no/100 ($130,000.00) to be paid to the CRA by cashier's check within ten (10) days
from the date of this Agreement as its contribution for the removal of soil to effectuate
the Remediation. Balk, at its sole expense, shall perform the backfill work (Le., the
"Work") required by DEP as part of the environmental remediation for which the CRA is
responsible under the Brownfields Site Rehabilitation Agreement. In addition, removal
of peat from the site, may be done at the discretion of Balk who shall be solely
,AO
responsible for all cost related to such removal including the cost of backfilling. CRA
shall be responsible for funding and performing all other work required to effectuate the
Remediation.
3. CRA approval of fill. With respect to all fill used on the Stage II Property,
the CRA shall have the right to disapprove the fill unless Balk demonstrates that it
meets the "no further action" criteria of rule 62-785.680(1)(b) of the Florida
Administrative Code (including the soil cleanup target levels set forth in rule chapter 62-
777 and the additive effects of multiple contaminants). No fill that exceeds these criteria
shall be used for any backfilling at the Stage II Property. Balk shall be responsible for
any sampling and analysis required to ensure compliance with this provision, including
any required by the CRA in order to determine suitability of the fill for such backfilling.
4. Responsibility for Contractor fees. Balk shall be solely responsible for all
work performed by Balk's contractor. In addition to any other requirements herein, Balk
shall provide CRA with a certification signed by Balk's contractor verifying receipt of
payment due (and payment of subcontractors if any), for the cost of all work performed
on the Stage II Property in excess of the Work as described in paragraph 2. Balk
agrees to indemnify and save harmless the CRA by reason of any mechanics lien which
may be asserted as a claim against the property.
5. Notices. All notices which are required or permitted hereunder must be
in writing and shall be deemed to have been given, delivered, or made as the case may
be, notwithstanding lack of actual receipt by the addressee; (1) three (3) business days
after having been deposited in the U.S. Mail, certified or registered, return receipt
requested, sufficient postage affixed and prepaid, or (2) one (1) business day after
having been deposited in an expedited overnight courier service such as by way of
example but not limitation, U.S. Express Mail or Federal Express addressed to the party
to whom notice is intended to be given at the address set forth below:
Balk -
Balk Company, Inc.
290 Cocoanut Avenue
Sarasota, Florida 34236
Attn: Mr. Bruce Balk
Copy to-
E.D. Armstrong, III, Esquire
Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A.
P.O. Box 1368
Clearwater, Florida 33757-1368
City-
William B. Horne, II
City Manager
City of Clearwater
2
1)14
P.O. Box 4748
Clearwater, Florida 33758-4748
Copy to-
Pamela K. Akin, Esquire
City Attorney
City of Clearwater
P.O. Box 4748
Clearwater, Florida 33758-4748
Any party may change address to which notices are sent by giving the other party
written notice of any such change in the manner provided in this section, but notice of
address changes is effective only upon receipt.
5. Term of AQreement. The term of this Agreement is for 180 days from the
effective date of the Agreement for Development and Disposition of Property
Mediterranean Village in the Park between CRA and Balk. All work permitted or
required pursuant to this Agreement shall be completed by Balk within 180 days.
6. Escrow AQreement. In order to ensure that the Work is completed to the
satisfaction of CRA and DEP, Balk, upon its execution of this Agreement, shall deliver to
Fowler White Boggs Banker P.A. (ie, "Escrow Agent") the sum of $160,000.00 in good
and sufficient funds to be held by Escrow Agent in escrow pursuant to the terms and
conditions set forth in this section 6.
(a) Upon receipt of the sum of $160,000.00 (hereinafter the "Escrow
Fund") in good and sufficient funds from Balk, Escrow Agent shall hold and retain the
same in trust in a non-interest bearing bank account. The Escrow Fund shall be
disbursed by Escrow Agent in accordance with the following provisions:
(i) Within ten (10) days after Balk has provided Escrow Agent with an
invoice from a contractor for costs incurred in performing the Work and certification from
the CRA that the Work has been done in compliance with the remediation requirements
and that the CRA has received a certification from the Contractor as provided in
paragraph 4, the invoice amount shall be disbursed from the Escrow Fund to the
contractor;
(ii) Within ten (10) days after Balk or CRA has provided Escrow Agent
with reasonable written evidence establishing that DEP has accepted and approved the
Work, and certification signed by Balk's contractor verifying receipt of payment due (and
payment of subcontractors if any), the remaining amount, if any, in the Escrow Fund
shall be disbursed to Balk;
(iii) Escrow Agent shall disburse the Escrow Fund or any portion thereof at
any time in accordance with any written direction duly executed by both Balk and CRA.
3
tIJ
(b) Escrow Agent's duties hereunder shall terminate upon the
disbursement of the entire Escrow Fund.
(c) In the event of any dispute between Balk or CRA concerning the
disbursement of the Escrow Fund under this Agreement, each party hereby agrees not
to bring any action, whatsoever, against Escrow Agent or to otherwise involve Escrow
Agent, as a party, in any such dispute or conflict. CRA hereby acknowledges that it has
been advised that Escrow Agent currently acts and plans to continue to act as counsel
for Balk in this matter and in other matters and that no confidential, fiduciary, or
attorney-client relationship is established by and between CRA and Escrow Agent as a
result of this Agreement and that CRA is not looking to Escrow Agent for any legal
advice or consultation hereunder and waives any claim of conflict of interest that might
be asserted as a result of Escrow Agent also representing Balk in connection with this
matter or other matters related to or arising under this Agreement.
(d) Balk and CRA do hereby release and further agree to defend and
indemnify Escrow Agent from any and all actions, claims, damages and liabilities of
whatever nature or kind, whether at law or in equity, which may be asserted against
Escrow Agent by any of the parties hereto or any third parties and which actions,
claims, damages, (including costs and reasonable attorneys fees incurred by Escrow
Agent) and liabilities arise from, are related to or are associated with Escrow Agent's
actions or omissions under this Paragraph 6, except nothing contained herein shall
relieve Escrow Agent from liability arising out of Escrow Agent's gross negligence or
willful malfeasance.
(e) If Escrow Agent is in doubt as to its duties or liabilities under the
provisions of this paragraph 6, or in the event a dispute arises between the parties or
any of them regarding the disbursement of the Escrow Fund, Escrow Agent may
interplead the Escrow Fund into the Circuit Court of Pinellas County, Florida,
whereupon, after notifying all parties concerned with such action, all liability on the part
of Escrow Agent shall terminate. Escrow Agent shall be reimbursed its reasonable
attorneys fees and costs incurred in connection with the interpleader action either out of
the funds deposited or by the parties to this Agreement.
(f) The parties hereto agree that Escrow Agent shall not be required to
make any disbursement of the Escrow Fund or any portion thereof except in
accordance with the terms as set forth in this Section.
(g) Any notice to be given under this paragraph 6 must be given in
writing and either sent by certified mail, return receipt requested, postage prepaid, or,
sent by overnight or hand delivery courier service to the party at the address hereinafter
specified, or sent by facsimile transmission to the fax number of a party as hereafter
specified, and shall be deemed to have been given, when sent if by certified mail or
overnight delivery service or when delivered if by hand delivery courier service or when
transmitted if by facsimile transmission. Such notice shall be given to the parties hereto
at the addresses or fax numbers below. Any party hereto may, by giving five (5) days'
4
~
notice to the other in accordance with the aforesaid provisions, designate another
address or fax number for notices.
Balk:
The Balk Company, Inc.
290 Cocoanut Avenue
Sarasota, FL 342356
Facsimile: (941) 366-3301
Agency:
Community Redevelopment Agency of the
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756-5103
Facsimile: (727) 562-
Escrow Agent:
Fowler White Boggs Banker P.A.
P.O. Box 1438
Tampa, FL 33601
Attn: Ronald H. Noble, Esq.
Facsimile: 813-229-8313
7. Indemnity, Developer shall indemnify against and hold the City
harmless from any liability for negligence or intentional wrongful acts or omissions of
Developer or its employees, agents, contractors, or subcontractors, with respect to any
activity at the Stage II Property related to the peat
removal and all backfilling. This Indemnity provision shall survive the term of this
agreement.
8. Entire Aqreement. This Agreement and the exhibits referenced herein
embodies and constitutes the entire understanding among the parties with respect to
the transaction contemplated herein and all prior or contemporaneous agreements,
understanding, representations and statements, oral or written, are merged into this
Agreement. Neither this Agreement nor any provisions hereof may be waived,
modified, amended, discharged or terminated except by an instrument in writing signed
by the party against which the enforcement of such waiver, modification, amendment,
discharge or termination is sought, and then only waiver, modification, amendment,
discharge or termination is sought, and then only to the extent set forth in such
instrument.
9. Applicable Law. This Agreement is construed in accordance with the laws
of the State of Florida.
10. Headinqs. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this contract.
5
h4
11. Bindino Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their heirs, personal representative and successors
bylaw.
12. Interpretation. Whenever the context hereof shall so require, the singular
shall include the plural, the male gender shall include the female gender and neuter and
vice versa. This Agreement and any related instruments shall not be construed more
strictly against one party than against the other by virtue of the fact that initial drafts
were made and prepared by counsel for one of the parties, it being recognized that this
contract and any related instruments are the product of extensive negotiations between
the parties and that both parties have contributed substantially and materially to the final
preparation of this contract and all related instruments.
13. Time is of the Essence. Time is of the essence of this Agreement.
Should any period of time specified herein and on a Saturday, Sunday or legal holiday
(recognized in Clearwater, Florida), the period of time shall automatically be extended to
5:00 p.m. on the next full business day.
14. Other Aoreements. No prior or present agreements or representations
shall be binding upon either party unless included in this Agreement. No modification or
change in this Agreement shall be valid or binding upon the parties unless in writing and
executed by the party or parties to be bound thereby.
15. Nothing in this Agreement shall be construed to constitute the creation of
a partnership or joint venture between the parties.
Countersigned:
CITY OF CLEARWATER, FLORIDA
By: ..~'B.~-:n:
IlIiam B. Horne II
City Manager
Approved as to form:
Jij~
Pamela K, Akin
City Attorney
Attest:
,
~.~~
Lu~ L. .. q,,"
Cy ia E. Goudeau
City lerk ...
THE BALK COMPANY, INC.
6
~
By:
~~e~Q~~l,
Bruce Balk, Pres (tent
. The undersigned Escrow Agent acknowledges receipt of the sum of
$ 160, () 0 0 · 0 0 by way of check (subject to collection) from The Balk Company,
Inc. as the Escrow Fund described in Section 6 of this Agreement and the terms of the
escrow arrangements set forth in Section 6 are accepted by the undersigned.
FOWLER WHITE BOGGS BANKER P.A.
By: rf!. ~
Its: 5"AArthoIJ-e-r'
Execution Date: ,,/ '2/0 u.
.
7