DEVELOPMENT AGREEMENT - MAINSTREET CLEARWATER LLC - TONY'S PIZZA RESTAURANTDEVELOPMENT AGREEMENT
(Mainstreet Clearwater, LLC "Tony's Pizza" Restaurant)
This Development Agreement ("Agreement") is made as of this f day
of July, 2010, 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 Mainstreet
Clearwater Development, LLC, a Florida limited liability company ("Developer").
WITNESSETH:
WHEREAS, the Agency and Developer have entered into and concluded negotiations of
a development agreement pursuant to Developer's request for specific assistance as outlined
herein, pertaining to and setting forth the terms and conditions for the development of certain
parcels located at 426 and 428 Cleveland St, Clearwater, Florida, and legally described as set
forth in Exhibit A, known as "Tony's Pizza" Restaurant in the community redevelopment area of
the City;
WHEREAS, at a duly called public meeting on July 13, 2010, 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 III, Chapter 163, Florida Statutes; Chapter 166, Florida Statutes, other applicable
provisions of law, and ordinances and resolutions of the City and the Agency implementing
them.
(2) "Agency" means the Community Redevelopment Agency of the City, as created
by Resolution No. 81-68 of the City, adopted by the City Council on August 6, 1981, including
any amendments thereto, and any successors or assigns thereto.
(3) "Agreement" means this Development Agreement, 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 11.19 certifying that all obligations of the parties hereto have been
satisfied and this Agreement has expired in accordance with its terms, the form of which is
attached hereto as Exhibit E.
(5) "Agreement Termination Certificate" means the instrument executed by the
parties hereto as provided in Section 9.06 stating that this Agreement has been terminated prior
to its Expiration Date as provided in Section 9.05, the form of which is attached hereto as
Exhibit F.
(6) "Area" means the area located within the corporate limits of the City having
conditions of slum and blight (as those conditions are defined in the Act) as found by the City
Council in Resolution No. 81-67, adopted by the City Council on August 6, 1981, and as
amended by Resolution No. 03-22, adopted by the City Council on May 1, 2003.
(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 the "Tony's Pizza" Restaurant Project to be
constructed on the Site, a 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 Council" means the governing body of the City, by whatever name known or
however constituted from time to time.
(112) "Commencement Date" means the date of issuance of the first Building Permit
for the "Tony's Pizza" Restaurant Project.
(12) "Completion Date" means the date on which construction of the Project is
substantially complete as evidenced by a Completion Certificate.
(13) "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 "Tony's Pizza" Restaurant Project, or any portion thereof, on the Project Site, including,
financing costs, "soft costs," overhead, and the design, construction and equipping of the
Project.
(14) "Construction Lender" means any person or persons providing the Construction
Financing or any portion thereof.
(15) "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.
2
(16) "Developer" means Mainstreet Clearwater Development, LLC, a Florida limited
liability company, and any successors and assigns thereof, including any entity, partnership,
joint venture, or other person in which Mainstreet Clearwater Development, LLC, is a general
partner or principal, but not including any entity, partnership, joint venture, or other person in
which Mainstreet Clearwater Development, LLC is a general partner or principal which is not
undertaking or participating in any development of the "Tony's Pizza" Restaurant Project, or any
part thereof.
(17) "Effective Date" means the date determined in accordance with Section 11.20
when the Memorandum of Development Agreement is recorded and this Agreement becomes
effective.
(18) "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.
(19) "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 11.19 hereof.
(20) "Impact Fees" means those fees and charges levied and imposed by the City,
Pinellas County and any other governmental entity on projects located on the Site for certain
facilities and services impacted by development such as the Project but for the purposes of this
Development Agreement, shall not include the fees or costs pursuant to the Public Art and
Design Program (section 3-2401 through 3.2406 of the Clearwater Community Development
Code)
(21) "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.
(22) "Plan" means the community redevelopment plan for the Area, including the Site,
as adopted by the City Council on September 18, 2003, by enactment of its Ordinance No. 7153-
03, and including any amendments to the Plan.
(23) "Project" means the "Tony's Pizza" Restaurant Project. More specifically, the
Project is the internal build out, including installation of a commercial kitchen, for an
approximately 3785 square foot full service restaurant, to be leased by Developer to a tenant
who will operate "Tony's Pizza".
(24) "Project Plans and Specifications" means the plans and specifications pertaining
to the construction, installation and equipping of the "Tony's Pizza" Restaurant Project, including
the schedule for completing the Project, consisting of the plans and specifications.
(25) "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.
3
(26) "Proposal" means the proposal for redevelopment of the Site, per the Site Plan
submitted by Developer.
(27) "Site" means that certain property with a street address of 426 and 428
Cleveland Street, located in Clearwater, Florida, as more particularly described on Exhibit A
attached hereto, on which the "Tony's Pizza" Restaurant Project is to be located.
(28) "Site Plan" means a floor plan that depicts the internal build out of the restaurant,
the initial version of which is attached hereto as Exhibit B.
(29) "Termination Date" means the date on which this Agreement is terminated by
any party hereto as provided in Section 9.05, and as evidenced by the Agreement Termination
Certificate.
(30) "Unavoidable Delay" means those events constituting excuse from timely
performance by a party hereto from any of its obligations hereunder, as such events are defined
in and subject to the conditions described in Article 10 hereof.
(31) ""Tony's Pizza" Restaurant Project" means the development consisting of the
internal build out of an approximately 3785 square foot full service restaurant; with access to 25
private parking spaces immediately adjacent, and others located nearby, to be located on the
Site as contemplated by the Proposal and this Agreement and constructed substantially in
accordance with the Plans and Specifications.
1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Unless the 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
(2009), as amended from time to time.
ARTICLE 2. PURPOSE; PROPOSAL
2.01. Intent: Purpose of Agreement.
(a) The purpose of this Agreement is to (i) secure economic assistance through the
Agency which supports the implementation of the City of Clearwater's "District Vision" for the
revitalization of the Downtown Core; and (ii) to further the implementation of the Plan by the
development and construction and operation 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.
4
(b) (1) The Site is to be redeveloped according to Project Plans and
Specifications for use as an approximately 3785 square foot full service restaurant; with access
to 25 private parking spaces immediately adjacent, and others located nearby. Developer
commits to maintain the operation of the Project as a full service restaurant for a period of not
less than 5 years.
(2) As provided in this Agreement, the Agency shall undertake certain public
actions pursuant to the Act and as implementation of the Plan, and provide assistance in
obtaining such approvals by governmental authorities as are necessary for development of the
Project.
(c) As provided in this Agreement, the Developer shall carry out the redevelopment
of the Site by obtaining approvals by governmental authorities necessary for development of the
Project, and constructing various private improvements on the Site.
2.02. Developer's Proposal.
(a) The Proposal for the redevelopment of the Site, specifically including the design,
construction, equipping, completion and use of the Project, and each component thereof, is
hereby found by the Agency and acknowledged by the Developer: (1) to be consistent with and
in furtherance of the objectives of the Plan, (2) to conform to the provisions of the Act, (3) to be
in the best interests of the citizens of the City, (4) to further the purposes and objectives of the
Agency, and (5) 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.
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 11.03 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 relied upon by the other party.
(c) The Developer does hereby notify the Agency that its initial Authorized
Representative for the Project is Kevin Burke of Mainstreet Clearwater Development, LLC.
(d) The Agency does hereby notify the Developer that its initial Authorized
Representative is Rod Irwin, Executive Director of the CRA.
ARTICLE 3. LAND USE REGULATION.
3.01. Zo^ nina. On the Effective Date, the zoning classification for the Site is "Downtown
District", abbreviated as "D." The parties recognize and acknowledge that the zoning
classification of the Site as of the Effective Date permits development of the Project.
3.02. Redevelopment Plan. The Agency represents to the Developer and the
Developer acknowledges that as of the Effective Date, the Site is in the Downtown Core District
and the provisions of the Plan pertaining to the Site were consistent with the "Tony's Pizza"
Restaurant Project as contemplated by the Proposal and this Agreement.
3.03. Permits.
(a) The Developer shall cause the tenant's contractor to 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. The Developer shall bear all
costs of preparing such applications, applying for and obtaining such permits including
applicable application, inspection, regulatory and Impact Fees or charges pertaining to the
Project, including, but not limited to, any such permit, review, application, inspection, regulatory
or Impact Fees except as otherwise provided in Article 6.
(b) The Agency shall cooperate with the Developer in obtaining all necessary
Permits and the Building Permits required for the construction and completion of the Project.
(c) The Agency's duties, obligations, or responsibilities under any section of this
Agreement, specifically including but not limited to this Section 3.04 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.
(d) 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
6
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. Not a Development Order or Permit. The parties do hereby acknowledge, agree
and represent that this Agreement is not intended to be and should not be construed or deemed
to be a "development order" or "development permit" within the meaning of those terms in
Section 163.3164, Florida Statutes.
3.05. Permitted Uses.
(a) The Project shall consist of an approximately 3785 square foot full service
restaurant and associated amenities.
(b) The Project shall have access to 25 adjacent private parking spaces and others
located nearby.
ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS.
4.01. Site Plan.
(a) The Developer has prepared a Site Plan, a copy of which is attached hereto as
Exhibit B, which contemplates development of the Project consistent with this Agreement. The
Developer agrees that during the term of this Agreement, any material changes to the Site Plan
or any subsequent versions of the Site Plan will be submitted to the City for review, if such
review is required by the Land Development Code, and Agency for approval, which Approval
shall not be unreasonably withheld or delayed.
ARTICLE 5. CONSTRUCTION OF THE PROJECT.
5.01. Site Clearance. Permits issued by the City for pre-construction activities on the
Site, including site clearance, utility relocation, and interior demolition, shall not be considered a
Building Permit for purposes of this Agreement.
5.02. Construction of the Project.
(a) (1) The Developer shall construct the Project on the Site substantially in
accordance with the Project Plans and Specifications therefor. Subject to Unavoidable Delay
and the terms and conditions in this Agreement, the Developer shall submit plans for permit
approval by no later than July 31, 2010.
(2) For purposes of this Section 5.02, "commence construction" of the Project
means commencement of meaningful physical development of that part of the Project as
7
authorized by the Building Permit therefor which is continued and prosecuted with reasonable
diligence toward and with the objective of completion of the Project.
(b) (1) After the Commencement Date, the Developer shall continue, pursue and
prosecute the construction 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 the Project toward completion. Subject to Unavoidable Delay and the terms and
conditions in this Agreement, the Project shall be completed by no later than January 2011.
(2) All obligations of the Developer with respect to commencement,
continuation and completion of construction 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 5.02, "completion," "complete," "substantially
complete" or "substantial completion" means, with respect to construction of the retail space of
the Project, a Certificate of Occupancy for the restaurant has been issued by the City
(d) If the Agency believes adequate progress in the construction 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 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 the
Project.
5.03. Project Alterations or Improvements. During the construction of the Project, the
Developer may, from time to time, minor 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 use 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. Any change to the facade improvements during or after construction must be approved
by the Agency prior to implementation. Nothing in this Section 5.03 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.
5.04. Completion Certificate.
(a) (1) Upon the substantial completion of the construction of the Project in
accordance with the provisions of this Article 5, the Developer shall prepare and execute the
Completion Certificate, which shall then be delivered to the Agency. Upon receipt of the
certificate the Agency shall promptly and diligently proceed to determine if construction of the
Project 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.
8
(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 Project; provided, however that nothing in this Section 5.04 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. The remaining obligations
of the Developer, including but not limited to the obligation to operate the Project as full service,
restaurant for of a period of not less than five years shall survive and are not affected by the
filling of the Completion Certificate.
(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 5.04 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 Project has been substantially completed in accordance with the
Project Plans and Specifications, the issuance of a certificate of occupancy for the Project 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)(1) for the original request.
(c) The Completion Certificate shall be in a form sufficient to be recorded in the
public records of Pinellas County, Florida. After execution by the Agency, it shall be promptly
returned to the Developer who shall record the certificate in the public records of Pinellas
County, Florida, and pay the cost of such recording.
5.05. 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.
5.06 Security for Developer's Performance. In consideration of the advancements,
reimbursements and payments made by the Agency pursuant to Article 6 hereof, Developer
shall provide a Performance Mortgage to secure the funds so paid, in substantially the form as
set forth and attached hereto as Exhibit C. Before any funds are paid, the mortgage shall be in
place, securing a second lien position on the property so identified for Agency payments. This
obligation and the Performance Mortgage provided hereto shall survive termination as provided
in paragraph 9.05 and 9.06. Pursuant to the provisions of Section 6.02 herein, the Agency
shall cancel and release the Performance Mortgage, and the same shall be of no further force
and effect, at the earlier of (a) the end of the 5-year period contemplated therein during which
9
the property is maintained as a full service restaurant or (b) the date on which repayment is
made pursuant to the provisions of Section 6.03.
ARTICLE 6. PAYMENTS BY AGENCY.
6.01 Restaurant Buildout Grant. The Agency shall reimburse Developer for restaurant
buildout and/or permanent fixtures for the project in an amount not to exceed $50,000.
Developer shall provide the Agency with documentation verifying expenditures for the restaurant
buildout. Provided further, that the total amount of reimbursement payments for said
improvements shall not exceed the total amount of expenditures made by Developer for the
restaurant buildout.
6.02 Reoavment by Developer. All payments by the Agency pursuant to this article 6
are subject to repayment by Developer if Developer fails to maintain the property as a full-
service restaurant for a period of five years. If at any time during the first five years following the
issuance of the certificate of completion, the project fails to be operated as a full-service
restaurant, Developer shall repay to the Agency the amounts paid by the Agency pursuant to
this article. The amount to be repaid by the Developer shall be reduced by 20% for each year
the full service restaurant is open and operating as provided herein. The Developer's obligation
to repay the incentives provided herein shall be secured by a performance mortgage as
provided in section 5.06.
ARTICLE 7. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE DEVELOPER.
7.01. Representations and Warranties. The Developer represents and warrants to the
Agency that each of the following statements is currently true and accurate and agrees the
Agency may rely upon each of the following statements:
(a) The Developer is a Florida limited liability company duly organized and validly
existing under the laws of the State of Florida, has all requisite power and authority to carry on
its business as now conducted, to own or hold its properties and to enter into and perform its
obligations hereunder and under each document or instrument contemplated by this Agreement
to which it is or will be a party, is qualified to do business in the State of Florida, and has
consented to service of process upon a designated agent for service of process in the State of
Florida.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which Developer is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and delivered by, the Developer,
and neither the execution and delivery thereof, nor compliance with the terms and provisions
thereof or hereof: (1) requires the approval and consent of any other party, except such as have
been duly obtained or as are specifically noted herein, (2) contravenes any existing law,
judgment, governmental rule, regulation or order applicable to or binding on the Developer, (3)
contravenes or results in any breach of, default under or, other than as contemplated by this
Agreement, results in the creation of any lien or encumbrance upon any property of the
Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the
10
Developer's articles of organization, 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 manager, member, employee or agent of the Developer, which question the validity
of this Agreement or any document contemplated hereunder, or which are likely in any case, or
in the aggregate, to materially adversely affect the consummation of the transactions
contemplated hereunder or the financial condition of the Developer.
(e) The Developer has filed or caused to be filed all federal, state, local and foreign
tax returns, if any, which were required to be filed by the Developer, and has paid, or caused to
be paid, all taxes shown to be due and payable on such returns or on any assessments levied
against the Developer.
(f) All financial information and other documentation, including that pertaining to the
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 400 Cleveland Street, Suite 200, Clearwater, FL 33755 and, until the expiration or
termination of this Agreement, the Developer will keep original or duplicate records concerning
the Project (such as construction contracts, financing documents and corporate documents) and
all contracts, licenses and similar rights relating thereto at an office located in the corporate
limits of the City of Clearwater.
(h) As of the Effective Date, the Developer has the financial capability to carry out its
obligations and responsibilities in connection with the development of the Project as
contemplated by this Agreement.
(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.
7.02. 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.
11
(b) 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.
(c) Subsequent to the Effective Date, the Developer shall maintain its financial
capability to develop, construct, complete and maintain 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.
(d) 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.
(e) Subject to and except as permitted by Section 7.01, 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 limited
liability company, 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 entity, 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.
(f) 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.
(g) Provided all conditions precedent thereto have been satisfied or waived as
provided herein, the Developer shall design, construct and complete the Project such that it is
substantially complete as provided in this Agreement no later than the Completion Date.
7.03 Covenant: Nondiscrimination. The Developer covenants by and for itself and any
successors in interest that there shall be no discrimination against or segregation of any person
or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or
national origin in the marketing, sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the site, nor shall the Developer itself or any person claiming under or through it
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the Site.
ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE AGENCY.
12
8.01. Representations and Warranties. The Agency represents and warrants to the
Developer that each of the following statements is currently true and accurate and agrees that
the Developer may rely on each of the following statements:
(a) The Agency is a validly existing body corporate and politic of the State of Florida,
is the duly created community redevelopment agency of the City under Part III, Chapter 163,
Florida Statutes (known as the Community Redevelopment Act of 1969), has all requisite
corporate power and authority to carry on its business as now conducted and to perform its
obligations hereunder and under each document or instrument contemplated by this Agreement
to which it is or will be a party.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and delivered by, the Agency, and
neither the execution and delivery thereof, nor compliance with the terms and provisions thereof
or hereof (1) requires the approval and consent of any other party, except such as have been
duly obtained or as are specifically noted herein, (2) contravenes any existing law, judgment,
governmental rule, regulation or order applicable to or binding on the Agency, (3) contravenes
or results in any breach of, or default under or, other than as contemplated by this Agreement,
results in the creation of any lien or encumbrance upon any property of the Agency under any
indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances,
resolutions or, on the date of this Agreement, any other agreement or instrument to which the
Agency is a party, specifically including any covenants of any bonds, notes, or other forms of
indebtedness of the Agency outstanding on the Effective Date.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party constitute, or when entered into will
constitute, legal, valid and binding obligations of the Agency enforceable against the Agency in
accordance with the terms thereof, except as such enforceability may be limited by public policy
or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles in the event that equitable
remedies are involved.
(d) There are no pending or threatened actions or proceedings before any court or
administrative agency against the Agency, or against any officer of the Agency, which question
the validity of any document contemplated hereunder, or which are likely in any case, or in the
aggregate, to materially adversely affect the consummation of the transactions contemplated
hereunder or the financial condition of the Agency.
8.02. 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
13
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 maintain its financial capability to carry out its responsibilities
as contemplated by this Agreement and shall notify the Developer of any event, condition,
occurrence, or change in its financial condition which adversely affects, or with the passage of
time is likely to adversely affect, the Agency's financial capability to carry out its responsibilities
contemplated hereby.
ARTICLE 9. DEFAULT; TERMINATION.
9.01. Default by Developer.
(a) Provided the Agency is not then in default of this Agreement under Section 9.02
hereof, there shall be an "event of default" by the Developer upon the occurrence of any one or
more of the following after the Effective Date:
(1) The Developer shall fail to perform or comply with any material provision
of this Agreement applicable to it within the time prescribed therefor; provided, however, that
suspension of or delay in performance by the Developer during any period in which the Agency
is in default of this Agreement as provided in Section 9.02 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.
14
(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 9.03, the Agency may
terminate this Agreement or pursue any and all legal or equitable remedies to which the Agency
is entitled, provided, however, if the Developer shall fail to cure such event of default within said
thirty (30) day or longer period or ceases to proceed diligently to timely cure such event of
default, then the Agency may proceed to enforce other available remedies without providing any
additional notice to the Developer. The Agency shall have no obligation to make the payments
provided in Article 6 herein, while developer is in default.
(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) In the event of a termination of this Agreement pursuant to this Section 9.01, the
Agency shall not be obligated to make or to continue to make any payments provided for in
Article 6.
9.02. Default by the Agency.
(a) Provided the Developer is not then in default under Section 9.01, 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 9.01 hereof will not
constitute an event of default by the Agency under this subsection (a).
(b) If an event of default by the Agency described in subsection (a) shall occur, the
Developer shall provide written notice thereof to the Agency, and, after expiration of the curative
period described in paragraph (c) 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 Commencement Date, any monetary recovery by the
Developer in any such action shall not include any lost profits or consequential damages and
shall be limited to bona fide third-party out-of-pocket costs and expenses, including reasonable
attorneys' fees, incurred by the Developer in connection with the negotiation of this Agreement
as well as any investigation, due diligence, development, design or construction costs incurred
by the Developer in connection with the proposed acquisition and development of the Site,
unless any such default by the Agency was willful and committed in bad faith with reckless
disregard for the rights of the Developer.
15
(c) The Developer may not terminate this Agreement or institute an action described
in paragraph (b) above if the Agency cures such event of default within thirty (30) days after
receipt by the Agency of written notice from the Developer specifying in reasonable detail the
event of default by the Agency, or if any such event of default is of such nature that it cannot be
completely cured within such period, then within such reasonably longer period of time as may
be necessary to cure such default, provided however, if the Agency is proceeding diligently and
in good faith, the curative period shall be extended for a period of not exceeding an aggregate
of thirty (30) days without any approval or consent of the Developer being required, but such
approval will be required (and shall be given or withheld in Developer's sole discretion) if the
curative period is to be extended beyond thirty (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
Agenoy 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.
(d) Any attempt by the Developer to pursue any of the remedies referred to in
paragraphs (a), (b), or (c) 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.
(e) 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.
9.03. Obligations, Rights and Remedies Cumulative. Unless specifically stated herein
to the contrary, the specified rights and remedies to which either the Agency or the Developer
are entitled under this Agreement are not exclusive and are intended to be in addition to any
other remedies or means of redress to which the Agency or the Developer may lawfully be
entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in,
the performance of its obligations by the Developer, while the Agency shall at such time be in
default of their obligations hereunder shall not be deemed to be an "event of default." The
suspension of, or delay in, the performance of the obligations by the Agency while the
Developer shall at such time be in default of its obligations hereunder shall not be deemed to be
an "event of default" by the Agency.
9.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of
the Agency or the Developer to promptly or continually insist upon strict performance of any
term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other
agreement, instrument or document of whatever form or nature contemplated hereby shall not
be deemed a waiver of any right or remedy that the Agency or the Developer may have, and
shall no& be deemed a waiver of a subsequent default or nonperformance of such term,
covenant, condition or provision.
9.05. Termination.
16
(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 9, but may be the basis for a termination of this Agreement as provided in this Section
9.05.
(b) In addition to any other rights of termination provided elsewhere in this
Agreement, this Agreement may be terminated 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 there from, 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) 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;
(4) The City or other appropriate governmental authority has issued a
concurrency compliance certificate or a reservation of services capacity as described in Section
3.05 and such certificate or reservation has been revoked, repealed, superseded, or otherwise
no longer of any effect or the Developer is unable to rely upon such certificate or reservation, if
such a certificate or reservation is required for development of the Project on the Site, and the
Developer cannot obtain a new or replacement certificate or reservation for the Project.
(5) 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 (5).
17
(d) In the event of a termination pursuant to Section 9.05(b), neither the Developer
nor the Agency shall be obligated or liable one to the other in any way, financially or otherwise,
for any claim or matter arising from or as a result of this Agreement or any actions taken by the
Developer and the Agency, or any of them, hereunder or contemplated hereby, and each party
shall be responsible for its own costs.
(e) Notwithstanding anything to the contrary contained herein, in the event that any
party shall have, but shall not exercise, the right hereunder to terminate this Agreement
because of the non-satisfaction of any condition specified herein, and such condition is
subsequently satisfied, then the non-satisfaction of such condition shall no longer be the basis
for termination of this Agreement.
9.06. Termination Certificate.
(a) In the event of a termination of this Agreement as provided in 9.05 prior to the
Expiration Date, each of the parties hereto do covenant and agree with each other to promptly
execute a certificate prepared by the party electing to terminate this Agreement, which
certificate shall expressly state that this Agreement has been terminated in accordance with its
terms, is no longer of any force and effect except for those provisions hereof which expressly
survive termination, that the rights, duties and obligations of the parties hereto have been
terminated and released (subject to those surviving provisions hereof, including but not limited
to paragraph 5.06) and that the Site is no longer subject to any restrictions, limitations or
encumbrances imposed by this Agreement.
(b) The certificate described in subsection (a) shall be prepared in a form suitable for
recording and promptly after execution by all of the parties hereto shall be recorded in the public
records of Pinellas County, Florida. The cost of recording the termination certificate shall be
paid by the terminating party.
9.07 Remedies. All remedies provided for herein and under Florida law shall be
cumulative and shall survive the technical termination of this Agreement pursuant to execution,
delivery and recordation of a Termination Certificate or otherwise hereunder.
ARTICLE 10. UNAVOIDABLE DELAY.
10.01. Unavoidable Dew[.
(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 10.01.
(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, terrorist attack,
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
18
Chapters 73 and 74, Florida Statutes, restoration in connection with any of the foregoing or any
other cause beyond the reasonable control of the party performing the obligation in question,
including, without limitation, such causes as may arise from the act of the other party to this
Agreement, or acts of any governmental authority (except that acts of the Agency shall not
constitute an Unavoidable Delay with respect to performance by the Agency).
(c) An application by any party hereto (referred to in this paragraph (c) and in
paragraph (d) as the "Applicant") for an extension of time pursuant to subsection (a) must be in
writing, must set forth in detail the reasons and causes of delay, and must be filed with the other
party to this Agreement within thirty (30) days following the occurrence of the event or condition
causing the Unavoidable Delay or thirty (30) days following the Applicant becoming aware (or
with the exercise of reasonable diligence should have become aware) of such occurrence.
(d) The Applicant shall be entitled to an extension of time for an Unavoidable Delay
only for the number of days of delay due solely to the occurrence of the event or condition
causing such Unavoidable Delay and only to the extent that any such occurrence actually
delays that party from proceeding with its rights, duties and obligations under this Agreement
affected by such occurrence.
ARTICLE 11. MISCELLANEOUS.
11.01. Assi nments.
(a) (1) Prior to the earlier of the Termination Date or the Expiration Date, the
Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest
and obligations in and to the 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,
except for the sale of a condominium in the ordinary course of business.
(2) If the assignee of Developer's right, title, interest and obligations in and to
the Project, or any part thereof, assumes all of Developer's obligations hereunder for the
Project, or that part subject to such sale, conveyance, assignment or other disposition, then the
Developer shall be released from all such obligations hereunder which have been so assumed
by the assignee, and the Agency agrees to execute an instrument evidencing such release,
which shall be in recordable form.
(b) An assignment of the Project, or any part thereof, by the Developer to any
corporation, limited partnership, general partnership, or joint venture, in which the Developer is
the or a general partner or has either the controlling interest or through a joint venture or other
arrangement shares equal management rights with a financial institution and maintains such
controlling interest or equal management rights for the term of this Agreement shall not be
deemed an assignment or transfer subject to any restriction on or approvals of assignments or
transfers imposed by this Section 11.01, 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
19
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 11.01 and the prior approval of the Agency shall be obtained before
such an event shall be effective.
11.02. 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.
11.03. 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, facsimile
transmission, or by hand delivery to the office for each party indicated below and addressed as
follows:
20
To the Developer:
Kevin Burke
Mainstreet Clearwater Development, LLC
400 Cleveland St., Suite 200
Clearwater, FL 33755
Attention:
FAX # (727)
with copies to:
Andrea E. Zelman, Esquire and
Dale M. Vash, Esquire
Fowler White Boggs P.A., Suite 1700
Tampa, Florida 33602
FAX# (813) 229-8313
To the Agency:
Community Redevelopment Agency of
the City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention: Rod Irwin
FAX # (727)
with copies to:
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention: City Attorney
FAX # (727) 562-4021
(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 11.03. 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.
11.04. 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.
11.05. Applicable Law and Construction. The laws of the State of Florida shall govern
the validity, performance and enforcement of this Agreement. This Agreement has been
negotiated by the Agency and the Developer, and the Agreement, including, without limitation,
the Exhibits, shall not be deemed to have been prepared by the Agency or the Developer, but
by all equally.
11.06. 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.
21
(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 11.03.
11.07. 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.
11.08. Estoppel Certificates. The Developer and the Agency shall at any time and from
time to time, upon not less than ten (10) days prior notice by another party hereto, execute,
acknowledge and deliver to the other parties a statement in recordable form certifying that this
Agreement has not been modified and is in full force and effect (or if there have been
modifications that the said Agreement as modified is in full force and effect and setting forth a
notation of such modifications), and that to the knowledge of such party, neither it nor any other
party is then in default hereof (or if another party is then in default hereof, stating the nature and
details of such default), it being intended that any such statement delivered pursuant to this
Section 11.08 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.
11.09. Complete Agreements 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.
22
(c) This Agreement cannot be changed or revised except by written amendment
signed by all parties hereto.
11.10. Captions. The article and section headings and captions of this Agreement and
the table of contents preceding this Agreement are for convenience and reference only and in
no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any
way affect this Agreement or construe any article, section, subsection, paragraph or provision
hereof.
11.11. 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.
11.12. 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.
11.13. 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.
11.14. Not an Agent. During the term of this Agreement, the Developer hereunder shall
not be an agent of the City or the Agency, with respect to any and all services to be performed
by the Developer (and any of its agents, assigns, or successors) with respect to the Project, and
the Agency is not an agent of the Developer (and any of its agents, assigns, or successors).
11.15. 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," the form of which is attached hereto as Exhibit D , and agree,
authorize and hereby direct such Memorandum to be recorded in the public records of Pinellas
County, Florida, as soon as possible after execution thereof. The Agency shall pay the cost of
such recording.
11.16. Public Purpose. The parties acknowledge and agree that this Agreement
satisfies, fulfills and is pursuant to and for a public purpose and municipal purpose and is in the
public interest, and is a proper exercise of the Agency's power and authority under the Act.
11.17. No General_Oblioation. In no event shall any obligation of the Agency under this
Agreement be or constitute a general obligation or indebtedness of the City or the Agency, a
pledge of the ad valorem taxing power of the City or the Agency or a general obligation or
indebtedness of the City or the Agency within the meaning of the Constitution of the State of
Florida or any other applicable laws, but shall be payable solely from legally available revenues
and funds. Neither the Developer nor any other party under or beneficiary of this Agreement
shall ever have the right to compel the exercise of the ad valorem taxing power of the City, the
Agency or any other governmental entity or taxation in any form on any real or personal
property to pay the City's or the Agency's obligations or undertakings hereunder.
23
11.18. Technical Amendments. 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.
11.19. Term: Expiration: Certificate.
(a) If not earlier terminated as provided in Section 9.05, 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.
(b) Upon completion of the term of this Agreement, all parties hereto shall execute
the Agreement Expiration Certificate. The Agreement Expiration Certificate shall constitute (and
it shall be so provided in the certificate) a conclusive determination of satisfactory completion of
all obligations hereunder and the expiration of this Agreement.
(c) The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records of Pinellas County, Florida. Following execution by all of the
parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the
Developer in the public records of Pinellas County, Florida, and the Developer shall pay the cost
of such recording.
11.20. 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, 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 11.15 hereof.
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of this day of 2010.
COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLEARWATER, FLORIDA
r/
By:
Frank V. Hibbard
Chairperson
aHnnniuU,q
?pP MF/?? ii
Approved as to form: Attest: *????.1??WATE;Q•q
??.ttr `Q?pgRATE C)nc
F6
JJ?JJJII I l l l l i 11111?1?``
Pamela K. Akin
City Attorney
Witnesses:
Cynthia E. Goudeau
City Clerk
MAINSTREET CLEARWATER DEVELOPMENT, LLC,
a Florida limited liability company
By:
Kevin urke, i Waging Member
STATE OF 2t== (f,- COUNTY OF PLS?-
The foregoing instrument was acknowledged before me this day of
_ U_UL-V , 2010 by Kevin Burke, Managing Member of Mainstreet Clearwater
Development, LLC, a Florida limited liability company and on behalf of said company. They are
personally known to me or have produced a valid d 'ver's license as identification.
(SEAL) Tt f_. (A- /v 6 f2-156 )C
un Printe !Typed Name: C kA/TM - 4vd iZ? tZ-?-
Cominbalon # 1776"1 Notary Public-State ofd [1`rLf Fd 21V l A
Los AnpeW Cowwy Commission Number: 0-1-774,
NMCtC1e?R?Qd?9.?1 T
25
LIST OF EXHIBITS
EXHIBIT A -- Legal Description
EXHIBIT B -- Site Plan
EXHIBIT C -- Performance Mortgage
EXHIBIT D -- Memorandum of Agreement for Development
EXHIBIT E -- Agreement Expiration Certificate
EXHIBIT F -- Agreement Termination Certificate
27
Dots 5 and 6 of Earll and Tate's Subdivision, according to the map or plat thereof as
recorded in Plat Book 1, Page 20, of the Public Records of Hillsborough County,
Florida, of which Pinellas County was formerly a part.
Exhibit A
77-
j
Exhibit B
$26 GLMMNS ST.
`'r-?`?' FLQGR pM_!1N
PLAN
eeu.e rr
•.r
earrMAarpri r?r rp.`?wrcwncr`-'_ ...
?r? r\ 6wC.rYN.y
rnr •w.c.w...o vr.rr.t
er.r.r.u?.?r? s?+a
cw rn?rur
r.. 77r.t•r??
u
Ary
r4 SEAL
.rcr+r?cr .,pa.r Kw wa
ewr-?cr y .?.. etirr
I.L. CpC ?rDCy lM'l?+ll ?"J'l?
i?._ w rw
PREPARED BY AND RETURN TO:
Dale M. Vash, Esquire
Fowler White Boggs P.A.
501 E. Kennedy Blvd., Suite 1700
Tampa, Florida 33602
NO DOCUMENTARY STAMP TAXES ARE DUE ON THIS MORTGAGE BECAUSE IT
SECURES THE PERFORMANCE OF AN OBLIGATION, NOT THE PAYMENT OF
MONEY.
PERFORMANCE MORTGAGE
THIS PERFORMANCE MORTGAGE, made and entered into this day of
, 2010, between MAINSTREET CLEARWATER DEVELOPMENT, LLC.,
a Florida limited liability company, hereinafter referred to as "Mortgagor", whose mailing
address is: 400 Cleveland Street, Suite 200, Clearwater, Florida 33755, and 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, hereinafter referred to as "Mortgagee", whose mailing address is: 112 S.
Osceola Avenue, Clearwater, FL 33756,
WITNESSETH:
WHEREAS, Mortgagor and Mortgagee entered into that certain Development Agreement
dated , 2010, [the "Agreement"], a memorandum of which Agreement is
to be recorded simultaneously herewith, wherein it is agreed that the Mortgagor has certain
development obligations as to that certain land situate in Pinellas County, Florida, as described in
Exhibit "A" attached hereto; and
WHEREAS, until the Termination Date or Expiration Date of the Agreement, it is the
intention by virtue of this Mortgage to secure the full performance by the Mortgagor, in
accordance with the said Agreement and proper application of all credits and fees applicable or
payable under said Agreement in the amount of fifty-thousand dollars ($50,000.00); it is
NOW, THEREFORE, to secure the performance and observance by Mortgagor of all
covenants and conditions in the Agreement and in this Mortgage and in all other instruments
securing the Agreement, and in order to charge the properties, interest and rights hereinafter
described with such payment, performance and observance and for and in consideration of the
sum of One Dollar ($1.00) paid by Mortgagee to Mortgagor this date, and for other valuable
considerations as provided in the Agreement, the receipt of which is acknowledged, Mortgagor
does hereby grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage,
hypothecate, pledge, deliver, set over, warrant and confirm unto Mortgagee, its successors and
assigns forever, the property described in Exhibit "A" attached hereto and made a part hereof by
reference and situated in Pinellas County, Florida.
1
Exhibit C
TOGETHER with all buildings, structures and improvements of every nature whatsoever
now or hereafter situated on the land, and all fixtures, machinery, appliances, equipment,
furniture, and personal property of every nature whatsoever now or hereafter owned by
Mortgagor and located in or on, or attached to, or used or intended to be used in connection with
or without the operation of, the land, buildings, structures or other improvements, and owned by
Mortgagor, including all extensions, additions, improvements, betterments, renewals,
substitutions, and replacements to any of the foregoing and all of the right, title and interest of
mortgagor in and to any such personal property or fixtures.
TOGETHER with all easements, rights of way, streets, ways, alleys, passages, sewer
rights, waters, water courses, water rights and powers, and all tenements, hereditaments and
appurtenances whatsoever, in any way belonging, relating or appertaining to any of the property
hereinabove described, or which hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by Mortgagor, and the reversion and rever-
sions, remainder and remainders, and all the estate, right, title, interest, property, possession,
claim and demand whatsoever, at law as well as in equity, of Mortgagor of, in and to the same.
TOGETHER with all rents, royalties, issues, profits, revenue, income and other benefits
from the property described herein, to be applied against the indebtedness and other sums
secured hereby, provided, however, that permission is hereby given to Mortgagor so long as no
default has occurred hereunder, to collect, receive, take, use and enj oy such rents, royalties,
issues, profits, revenue, income and other benefits as they become due and payable, but not in
advance thereof The foregoing assignment shall be fully operative without any further action on
the part of either party and specifically Mortgagee shall be entitled, at its option, upon the
occurrence of a default hereunder, to all rents, royalties, issues, profits, revenue, income, and
other benefits from the property whether or not Mortgagee takes possession of the property.
Upon any such default hereunder, the permission hereby given to Mortgagor to collect such
rents, royalties, issues, profits, revenue, income and other benefits from the property shall termi-
nate and such permission shall not be reinstated upon a cure of the default without Mortgagee's
specific consent. Neither the exercise of any rights under this paragraph by Mortgagee nor the
application of any such rents, royalties, issues, profits, revenue, income or other benefits to the
indebtedness and other sums secured hereby, shall cure or waive any default or notice of default
hereunder or invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
TOGETHER with a security interest in all articles of personal property and all materials
delivered to the property described herein for use in any construction being conducted thereon,
and owned by Mortgagor, and all contract rights, general intangibles, actions and rights in action,
including all rights to insurance proceeds, and all proceeds, products, replacements, additions,
substitutions, renewals and accessions of any of the foregoing. This Mortgage is a self operative
security agreement with respect to such property, but Mortgagor agrees to execute and deliver on
demand such other security agreements, financing statements and other instruments as
Mortgagee may request in order to perfect its security interest or to impose the lien hereof more
specifically upon any of such property. Mortgagee shall have all the rights and remedies in
addition to those specified herein of a secured party under the Uniform Commercial Code of
Florida.
2
ALL OF WHICH real and personal property, rights and intangibles are herein referred to
as the "Mortgaged Property".
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto
Mortgagee, its successors and assigns, to its own property use and benefit forever, subject,
however, to the terms and conditions herein.
PROVIDED ALWAYS, that if all obligations are timely performed and the warranties
and conditions of this Mortgage are complied with, this Mortgage shall be null and void, and so
long as Mortgagor is not in default under the Agreement, it shall be entitled to the full benefit of
its contract rights under said Agreement.
Mortgagor covenants and agrees with Mortgagee as follows:
ARTICLE ONE
COVENANTS OF MORTGAGOR
1.01 Performance of Agreement,_ Mortgage. Mortgagor shall perform, observe and
comply with all provisions hereof, of the Agreement and of every other instrument securing the
Agreement.
1.02 Warranty of Title. Mortgagor covenants and warrants that it is seized of an
indefeasible estate in fee simple in the real property hereby mortgaged, has good and absolute
title to all existing personal property hereby mortgaged or made subject to the security interest
hereby created and has good right, full power and lawful authority to convey, mortgage and
encumber the same as provided herein; that Mortgagee may at all times peaceably and quietly
enter upon, hold, occupy and enjoy the real property hereby mortgaged and every part thereof;
that the real property and all existing personal property hereby mortgaged or made subject to the
security interest hereby created is free and clear of all liens, security interests, charges and
encumbrances whatsoever, except for easements of record and the lien for property taxes not yet
due and payable and any mortgage described in Section 3.01 below. Mortgagor shall and will
make such further assurances to perfect Mortgagee's fee simple title to the real property hereby
mortgaged, and the title to the personal property hereby mortgaged or made subject to the securi-
ty interest hereby created as may reasonably be required. Except as herein provided, Mortgagor
fully warrants the title to the real property and all existing personal property hereby mortgaged or
made subject to the security interest hereby created, and every part hereof, and will forever
defend the same against the claims of all persons whomsoever.
1.03 Taxes and Liens.
A. Mortgagor shall pay promptly, when and as due, and shall promptly exhibit to
Mortgagee receipts for the payment of, all taxes, assessments, rates, dues, charges, fees, levies,
fines, impositions, liens, liabilities, obligations and encumbrances of every kind whatsoever now
or hereafter imposed, levied or assessed upon or against the Mortgaged Property or any part
thereof, and any charge which, if unpaid, would become a lien or charge upon the Mortgaged
Property prior to or equal to the lien of this mortgage, before they become delinquent and before
any interest attaches or any penalty is incurred.
3
B. Mortgagor shall not permit or suffer any mechanics', laborers', materialmen's,
statutory or other lien which might or could be prior or equal to the lien of this Mortgage to be
created or to remain a lien upon any of the Mortgaged Property.
1.04 Insurance.
A. Mortgagor shall at its sole expense obtain for, deliver to and maintain for the
benefit of Mortgagee, during the life of this Mortgage, insurance policies in such amounts as
Mortgagee may require, insuring the Mortgaged Property against fire, flood, extended coverage,
and such other insurable hazards, casualties, contingencies and public liability insurance, as
Mortgagee may require, and shall pay promptly, when due, any premiums on such insurance
policies and on any renewals thereof. The form of such policies and the companies issuing them
shall be acceptable to Mortgagee. All such policies and renewals thereof shall be held by
Mortgagee and shall contain a non-contributory mortgagee endorsement making losses payable
to Mortgagee subject to the rights of any mortgagee described in Section 3.01 below. The
coverage under such policies shall be limited to the improvements now or hereafter located on
the Mortgaged Property. At least fifteen (15) days prior to the expiration date of all such
policies, renewals thereof satisfactory to Mortgagee shall be delivered to Mortgagee, Mortgagor
shall deliver to Mortgagee receipts evidencing the payment of all premiums on such insurance
policies and renewals. Delivery of the insurance policies and renewals thereof shall constitute an
assignment to Mortgagee, as further security, of all unearned premiums. In the event of loss,
Mortgagor will give immediate written notice to Mortgagee and Mortgagee may make proof of
loss if not made promptly by Mortgagor. In the event of the foreclosure of this Mortgage or any
other transfer of title to the Mortgaged Property in extinguishment of the indebtedness and other
sums secured hereby, all right, title and interest of Mortgagor in and to all insurance policies and
renewals thereof then in force shall pass to the purchaser or grantee.
B. Mortgagor hereby assigns to Mortgagee all proceeds from any insurance policies,
and Mortgagee is hereby authorized and empowered, at its option, to adjust or compromise any
loss under any insurance policies on the Mortgaged Property, and to collect and receive the
proceeds from any such policy or policies. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Mortgagee alone, and not to Mortgagor
and Mortgagee jointly. After deducting from such insurance proceeds any expenses incurred by
Mortgagee in the collection or handling of such funds, Mortgagee may apply the net proceeds, at
its option, either toward restoring the improvements or as a credit on any portion of the
indebtedness and other sums secured hereby, whether then matured or to mature in the future, or
at the option of Mortgagee such sums either wholly or in part may be paid over to the Mortgagor
to be used to repair such improvements or to build new improvements in their place or for any
other purpose or object satisfactory to Mortgagee, without affecting the lien of this Mortgage for
the full amount secured hereby before such payment took place. Mortgagee shall not be
responsible for any failure to collect any insurance proceeds due under the terms of any policy
regardless of the cause of such failure. Notwithstanding anything in the foregoing to the
contrary, the rights of Mortgagee under this Subsection B shall be subject and subordinate to the
rights of any mortgagee described in Section 3.01 below.
C. Mortgagor shall at its sole expense obtain for, deliver to and maintain for the
benefit of Mortgagee, during the life of this Mortgage, liability insurance policies relating to the
4
Mortgaged Property, in such amounts, with such companies and in such form as may be required
by Mortgagee. Mortgagee may require such policies to contain an endorsement, in form satis-
factory to Mortgagee, naming Mortgagee as an additional insured thereunder. Mortgagor shall
pay promptly, when due, any premiums on such insurance policies and renewals thereof
D. In the event of a foreclosure of this Mortgage, the purchaser of the Mortgaged
Property shall succeed to all the rights of Mortgagor, including any right to unearned premiums,
in and to all policies of insurance assigned and delivered to Mortgagee, with respect to all
property herein encumbered.
E. Subject to the rights of any mortgagee described in Section 3.01 below,
Mortgagee may, at its option, direct the payment of the insurance proceeds into an escrow
account at a bank, title insurance company or law firm designated by Mortgagee to be held for
the benefit of the Mortgagor and Mortgagee during the re-building of the Mortgaged Property
and shall be released by Mortgagee upon the approval of the inspecting architect or engineer that
the Mortgaged Property has been restored to the condition it was prior to the loss. In the event
additional financing is necessary to meet the requirements of any general contract which might
be used to effect such reconstruction, then the Mortgagor shall place said additional funds into
the escrow account.
1.05 INTENTIONALLY DELETED.
1.06 Condemnation. If all or a material part (which determination shall be made by
Mortgagee in its sole and absolute discretion) of the Mortgaged Property shall be damaged or
taken through condemnation (which term when used herein shall include any damage or taking
by any governmental authority or any other authority authorized by the laws of the State of
Florida or the United States of America to so damage or take, and any transfer by private sale in
lieu thereof), either temporarily or permanently, at the option of Mortgagee, Mortgagor shall be
deemed in default hereunder. Mortgagee shall be entitled to all compensation awards, damages,
claims, rights of action and proceeds of, or on account of, any damage or taking through
condemnation and is hereby authorized, at its option, to commence, appear in and prosecute, in
its own or Mortgagor's name, any action or proceeding relating to any condemnation, and to
settle or compromise any claim in connection therewith. All such compensation awards,
damages, claims, rights of action and proceeds, and any other payments or relief, and the right
thereto, are hereby assigned by Mortgagor to Mortgagee, which, after deducting therefrom all its
expenses, including, without limitation, attorneys' fees, may release any monies so received by it
without affecting the lien of this Mortgage or may apply the same, in such manner as Mortgagee
shall determine, to the reduction of the sums secured hereby and to any prepayment charge
provided in the Agreement, this Mortgage or other instrument securing the Agreement. Any
balance of such monies then remaining shall be paid to Mortgagor. Mortgagor agrees to execute
such further assignments of any compensation, awards, damages, claims, rights of action and
proceeds as Mortgagee may require. Notwithstanding anything in the foregoing to the contrary,
the rights of the Mortgagee under this Section 1.06 shall be subject and subordinate to the rights
of any mortgagee described in Section 3.01 below.
5
1.07 Care of Property.
A. Mortgagor shall preserve and maintain the Mortgaged Property in good condition
and repair. Except as contemplated and permitted elsewhere in this mortgage, Mortgagor shall
not remove, demolish, alter or change the use of any structure or other improvement presently or
hereafter on that portion of the Mortgaged Property described as the Project in the Agreement
without the prior written consent of Mortgagee, nor permit, commit or suffer any waste,
impairment or deterioration of the Mortgaged Property or of any part thereof, and will not take
any action which will increase the risk of fire or other hazard to the Mortgaged Property or to
any part thereof.
B. Mortgagee may enter upon and inspect the Mortgaged Property at any reasonable
time during the life of this Mortgage.
C. Mortgagor will promptly comply with all present and future laws, ordinances,
rules and regulations of any governmental authority affecting the Mortgaged Property or any part
thereof.
1.08 Transfer of Pro Rea Title. If all or any part of the Mortgaged Property or any
interest therein is sold or transferred by Mortgagor without Mortgagee's prior written consent,
excluding (a) the creation of a lien or encumbrance subordinate to this mortgage, (b) the creation
of a purchase money security interest for appliances, fixtures or equipment, (c) a transfer by
devise, descent or by operation of law upon the death of a joint tenant, (d) the grant of any
leasehold interest of ten (10) years or less not containing an option to purchase, or (e) the
refinancing of any mortgage described in Section 3.01 below in an amount not to exceed the loan
amount described in Section 3.01 below. Mortgagee may, at Mortgagee's option, declare a
default hereunder. Mortgagee shall have waived such option to accelerate if, prior to the sale or
transfer, Mortgagee and the person to whom the mortgaged property is to be sold or transferred
reach agreement in writing that the credit of such person is satisfactory to Mortgagee and that the
interest payment on the sums secured by this mortgage shall be at such rate as Mortgagee shall
request.
1.09 Further Assurances. At any time and from time to time, upon Mortgagee's
request, Mortgagor shall make, execute and deliver or cause to be made, executed and delivered
to Mortgagee any and all such further mortgages, instruments of further assurance, certificates,
updated financial statements and secure financial information and any other documents as
Mortgagee may consider necessary or desirable in order to effectuate, complete or perfect, or to
continue and preserve the obligations of Mortgagor under the Agreement and this Mortgage, and
the lien of this Mortgage as a valid and existing lien upon all of the Mortgaged Property, whether
now owned or hereafter acquired by Mortgagor. Upon any failure by Mortgagor to do so,
Mortgagee may make, execute, record, file, re-record or refile any and all such mortgages,
instruments, certificates and documents for and in the name of Mortgagor, and Mortgagor hereby
irrevocably appoints Mortgagee the agent and attorney-in-fact of Mortgagor to do so. Mortgagor
shall promptly deliver to Mortgagee receipts showing payment in full of all of the above items
which are not paid from the escrow account, if any, herein established.
1.10 INTENTIONALLY DELETED
6
1.11 After Acquired Property. The lien of this Mortgage will automatically attach,
without further act, to all after acquired property located in or on, or attached to, or used or
intended to be used in connection with or with the operation of, the Mortgaged Property or any
part thereof.
1.12 Expenses. Mortgagor shall pay or reimburse Mortgagee for all costs, charges and
expenses, including reasonable attorneys' fees and disbursements and costs incurred or paid by
Mortgagee in any threatened, pending or completed action, proceeding or dispute in which
Mortgagee is or might be made a party or appears as a party plaintiff or party defendant and
which affects or might affect the Agreement, this Mortgage or any other instrument securing the
Agreement, or the Mortgaged Property or any part thereof, or the interests of Mortgagor or
Mortgagee therein, including but not limited to the foreclosure of this Mortgage, condemnation
involving all or part of the Mortgaged Property or any action to protect the security hereof,
including all appellate proceedings in connection with or arising out of any of the foregoing. All
costs, charges and expenses so incurred or paid by Mortgagee shall become due and payable
immediately, whether or not there be notice, demand, attempt to collect or suit pending. The
amounts so incurred or paid by Mortgagee, together with interest thereon at the Default Rate as
hereinafter defined from the date incurred until paid by Mortgagor, shall be secured by the lien
of this mortgage.
1.13 Performance of Defaults. If Mortgagor defaults in the payment of any tax,
assessment, encumbrance or other imposition, in its obligation to furnish insurance hereunder or
in the performance or observation of any other covenant, condition or term in this Mortgage or in
any other instrument securing the Agreement, Mortgagee may at its option perform, correct or
observe the same, and all payments made (whether such payments are regular or accelerated
payments) and costs and expenses incurred or paid by Mortgagee in connection therewith shall
become due and payable immediately, whether or not there be notice or demand. The amounts
so incurred or paid by Mortgagee, together with interest thereon at the Default Rate as
hereinafter defined from the date incurred until paid by Mortgagor, shall be secured by the lien
of this Mortgage. Nothing contained herein shall be construed as requiring Mortgagee to
advance or expend monies for any purpose mentioned in this paragraph, or for any other
purpose. Mortgagee is hereby empowered to enter and to authorize others to enter upon the
Mortgaged Property or any part thereof for the purpose of performing or observing any such
defaulted covenant, condition or term, without thereby becoming liable to Mortgagor or any
person in possession holding under Mortgagor.
1.14 Estoppel Affidavits. Either Mortgagor or Mortgagee within ten (10) days after
written request from the other shall furnish a written statement, duly acknowledged, setting forth
the ongoing or unmet obligations under the Agreement, and any other unpaid sums secured
hereby, and whether or not any offsets or defenses exist.
ARTICLE TWO
DEFAULTS
2.01 Event of Default. The term default, wherever used in this Mortgage, shall mean
any one or more of the following events:
7
A. Breach of or failure by Mortgagor to duly keep, perform and observe any other
covenant, condition or agreement in the Agreement, this Mortgage, any other instrument
securing the Agreement or any other instrument collateral to the Agreement or executed in
connection with the sums secured hereby.
B. If the Mortgagor at any time shall: (i) file a voluntary petition in bankruptcy, or
(ii) be adjudicated as bankrupt or insolvent, or (iii) seek or consent to or acquiesce in the appoint-
ment of a trustee, receiver, master or liquidator of all or any substantial part of the Mortgaged
Property or of any or all of the rents, revenues, issues, earnings, profits or income thereof; or (iv)
make any general assignment for the benefit of creditors; or make an admission in writing of its
inability to pay its debts generally as they become due; or (v) if a court of competent jurisdiction
enters an order, judgment or decree approving a petition filed against Mortgagor seeking any
arrangement, composition, readjustment, liquidation, or similar relief under any present or future
federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief
for debtors.
C. Material breach of any warranty or material untruth of any representation of
Mortgagor contained in the Agreement, this Mortgage or any other instrument securing the
Agreement.
D. Should foreclosure proceedings (whether judicial or otherwise) be instituted on
any mortgage or any junior lien of any kind secured by any portion of the Mortgaged Property,
and not be terminated within forty-five (45) days.
E. Should Mortgagor default in any other loan from Mortgagee to Mortgagor.
F. Except for sale of portions of the Mortgaged Property made in the ordinary course
of business for which a partial release or consent is obtained, should Mortgagor encumber, sell or
otherwise dispose of the Mortgaged Property, or any part or interest thereof, without the consent
in writing of the Mortgagee.
2.02 Mortgap-ee's Power of Enforcement. If an event of default shall have occurred,
Mortgagee may, either with or without entry or taking possession as hereinabove provided or
otherwise, proceed by suit or suits at law or in equity or by any other appropriate proceeding or
remedy; (a) to enforce the Agreement or the performance of any term hereof or any other right;
(b) to foreclose this Mortgage and to sell, as an entirety or in separate lots or parcels, the
Mortgaged Property, under the judgment or decree of a court or courts of competent jurisdiction;
or (c) to pursue any other remedy available to it. Mortgagee may take action either by such
proceedings or by the exercise of its powers with respect to entry or taking possession, or both,
as the Mortgagee may determine.
2.03 Receiver. If an event of default shall have occurred, Mortgagee, to the extent
permitted by law and without regard to the value or occupancy of the security, shall be entitled as
a matter of right if it so elects to the appointment of a receiver to enter upon and take possession
of the Mortgaged Property and to collect all rents, revenues, issues, income, products and profits
thereof and apply the same as the court may direct. The receiver shall have all rights and powers
permitted under the laws of the State of Florida and such other powers as the court making such
appointment shall confer. The expenses, including receiver's fees, attorney's fees, costs and
agent's compensation, incurred pursuant to the powers herein contained shall be secured by this
Mortgage. The right to enter and take possession of and to manage and operate the Mortgaged
Property, and to collect the rents, issues and profits thereof, whether by a receiver or otherwise,
shall be cumulative to any other right or remedy hereunder or afforded by law, and may be
exercised concurrently therewith or independently thereof. Mortgagee shall be liable to account
only for such rents, issues and profits as are actually received by Mortgagee.
2.04 Deficiency. In case of a foreclosure sale of all or any part of the Mortgaged
Property and of the application of the proceeds of sale Mortgagee shall be entitled to enforce
payment of and to receive any and all amounts due as a result of Mortgagor's default as defined
in Section 2.01 of this Mortgage and to recover judgment for any portion thereof remaining
unpaid, with interest. Mortgagor hereby agrees, to the extent permitted by law, that no recovery
of any such judgment by Mortgagee and no attachment or levy of any execution upon any of the
Mortgaged Property or and other property shall in any way affect the lien of this Mortgage upon
the Mortgaged Property or any part thereof, or any lien, rights, powers or remedies of Mortgagee
hereunder, but such lien, rights, powers and remedies shall continue unimpaired as before.
2.05 Delay or Omission No Waiver. No delay or omission of Mortgagee or any holder
or the Agreement to exercise any right, power or remedy accruing upon any event of default
shall exhaust any such event of default or to constitute acquiescence therein. Every right, power
and remedy given to Mortgagee may be exercised from time to time and as often as may be
deemed expedient by Mortgagee.
2.06 No Waiver of One Default to Affect Another. No waiver of any event of default
hereunder shall extend to or affect any subsequent or any other event of default then existing, or
impair any rights, powers or remedies consequent thereon. If Mortgagee (a) grants forbearance
or an extension of time for performance secured hereby; (b) takes other or additional security for
the performance thereof; (c) waives or does not exercise any right granted in the Agreement, this
Mortgage or any other instrument securing the Agreement; (d) releases any part of the
Mortgaged Property from the lien of this Mortgage or any other instrument securing the
Agreement; (e) consents to the filing of any declaration of condominium, map, plat or replat of
the land; or (f) makes or consents to any agreement changing the terms of this Mortgage or
subordinating the lien or any charge hereof, no such act or omission shall release, discharge,
modify, change or affect the original liability under the Agreement, this Mortgage, or otherwise
of Mortgagor, or any subsequent purchaser of the Mortgaged Property or any part thereof or any
maker, co-signer, endorser, surety or guarantor. No such act or omission shall preclude
Mortgagee from exercising any right, power or privilege herein granted or intended to be granted
in case of any event of default then existing or of any subsequent event of default nor, except as
otherwise expressly provided in an instrument or instruments executed by Mortgagee, shall the
lien of this Mortgage be altered thereby. In the event of the sale or transfer by operation of law
or otherwise of all or any part of the Mortgaged Property, Mortgagee, without notice to any
person, firm or corporation, is hereby authorized and empowered to deal with any such vendee or
transferee with reference to the Mortgaged Property or the indebtedness secured hereby, or with
reference to any of the terms or conditions hereof, as fully and to the same extent as it might deal
with the original parties hereto and without in any way releasing or discharging any of the liabili-
ties or undertakings hereunder of the original Mortgagor.
9
2.07 Cumulative. No right, power or remedy conferred upon or reserved to Mortgagee
by the Agreement, this mortgage or any other instrument securing the Agreement is exclusive of
any other right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and remedy given
hereunder or under the Agreement or any other instrument securing the Agreement, or now or
hereafter existing at law, in equity or by statute.
2.08 Default Rate. Any advancements made by and expenses incurred by Mortgagee,
shall bear interest from the due date or the date of advancement or payment by Mortgagee at the
highest contract rate of interest permitted to be charged under the laws of the State of Florida,
which rate is herein referred to as the "Default Rate".
2.09 JURY WAIVER
NOW, SHOULD IT BECOME NECESSARY TO ENFORCE THE AGREEMENT
THROUGH AN ATTORNEY, ANY OF US9 WHETHER MAKER, SURETY, OR
ENDORSER ON THIS AGREEMENT, HEREBY AGREES TO PAY ALL COSTS OF
COLLECTION, INCLUDING A REASONABLE ATTORNEYS' FEE, AND INCLUDING
ANY ATTORNEYS' FEES INCURRED BY ANY APPEAL. THE UNDERSIGNED
JOINTLY AND SEVERALLY DO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR MORTGAGEE ACCEPTING THIS AGREEMENT.
ARTICLE THREE
SUBORDINATION
3.01 Subordination of Mortgage Rights. Mortgagee does hereby acknowledge that this
Performance Mortgage is subordinate to that certain mortgage given by Mortgagor to Yo Nancy,
Inc. for a total loan amount of $1,550,000.00. Furthermore, Mortgagee shall subordinate this
Performance Mortgage to any mortgage given by Mortgagor to secure an indebtedness incurred
by Mortgage to re-finance the total loan amount secured by the aforesaid mortgage and upon
Mortgagor's written request, Mortgagee shall execute a written subordination of this
Performance Mortgage to said re-financing mortgage; however, such subordination may be
withheld by Mortgagee until such time that Mortgagor presents Mortgagee with reasonable
evidence that at said time the Mortgaged Property is of a market value that is equal to or exceeds
the total amount being refinanced plus $50,000.00.
3.02 Subordination of Easement Rights. Provided that Mortgagor is not in default
hereunder, Mortgagee agrees to subordinate the lien of this Mortgage to the rights of the holders
of any easement hereafter granted by Mortgagor which may reasonably be required to furnish to
the Mortgaged Property utilities such as, but not limited to, water, electricity, sanitary and storm
sewers, gas and telephone.
10
ARTICLE FOUR
HAZARDOUS SUBSTANCE
4.01 Mortgagor hereby represents that neither Mortgagor nor, to Mortgagor's
knowledge, any other person has ever used the Mortgaged Property as a storage facility for any
"Hazardous Substance" other than gasoline or motor oil (to the extent same may be Hazardous
Substances) used in the ordinary course of Mortgagor's business.
Mortgagor hereby agrees to indemnify Mortgagee and hold Mortgagee harmless from
and against any and all losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys' fees, costs of any settlement or judgment and claims of any and
every kind whatsoever paid, incurred or suffered by, or asserted against, Mortgagee by any
person or entity or governmental agency for, with respect to, or as a direct or indirect result of,
the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, dis-
charging or release from the premises of any Hazardous Substance (including, without limitation,
any losses, liabilities, including strict liability, substances or standards of conduct concerning any
Hazardous Substance), regardless of whether within the control of Mortgagee, so long as the act
or omission in question occurs prior to the sale of the premises and complete dispossession of
Mortgagor thereunder.
For purposes of this instrument, "Hazardous Substances" shall mean and include those
elements or compounds which are contained in the list of hazardous substances adopted by the
United States Environmental Protection Agency (EPA) and the list of toxic pollutants designated
by Congress or the EPA or defined by any other Federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of
conduct concerning any hazardous, toxic or dangerous waste, substance or material as now or at
any time hereafter in effect.
If Mortgagor receives any notice of (i) the happening of any material event involving the
spill, release, leak, seepage, discharge or cleanup of any Hazardous Substance on the premises or
in connection with Mortgagor's operations thereon or, (ii) any complaint, order, citation or
material notice with regard to air emissions, water discharges, or any other environmental, health
or safety matter affecting Mortgagor (an "Environmental Complaint") from any person or entity
(including, without limitation, the EPA), then Mortgagor shall immediately notify Mortgagee
orally and in writing of said notice.
Mortgagee shall have the right, but not the obligation, and without limitation of
Mortgagee's rights under this instrument, to enter onto the Mortgaged Property or to take such
other actions as it deems necessary or advisable to clean up, remove, resolve or minimize the
impact of, or otherwise deal with, any such Hazardous Substance or Environmental Complaint
following receipt of any notice from any person or entity (including, without limitation, the EPA)
asserting the existence of any Hazardous Substance or an Environmental Complaint pertaining to
the Mortgaged Property or any part thereof which, if true, could result in an order, suit or other
action against Mortgagor and/or which, in the sole opinion of Mortgagee, could jeopardize its
security under this instrument. All reasonable costs and expenses incurred by Mortgagee in the
exercise of any such rights shall be secured by this instrument and shall be payable by Mortgagor
upon demand.
11
Mortgagee shall have the right, in its reasonable discretion, to require Mortgagor to
periodically (but not more frequently than annually unless an Environmental Complaint is then
outstanding) perform (at Mortgagor's expense) an environmental audit and, if deemed necessary
by Mortgagee, an environmental risk assessment, each of which must be satisfactory to
Mortgagee, of the Mortgaged Property, hazardous waste management practices and/or hazardous
waste disposal sites used by Mortgagor. Said audit and/or risk assessment must be by an
environmental consultant satisfactory to Mortgagee. If the environmental audit or environmental
risk assessment reveals no recognized environmental concerns, Mortgagee shall be solely liable
for the cost of said audit or assessment and shall reimburse Mortgagor for said cost upon
demand. Should Mortgagor fail to perform said environmental audit or risk assessment within
thirty (30) days of the Mortgagee's written request, Mortgagee shall have the right, but not the
obligation, to retain an environmental consultant to perform said environmental audit or risk
assessment. All costs and expenses incurred by Mortgagee in the exercise of such rights shall be
secured by this instrument and shall be payable by Mortgagor upon demand.
Any breach of any warranty, representation or agreement contained in this section shall
be an event of default hereunder and shall entitle Mortgagee to exercise any and all remedies
provided in this instrument, or otherwise permitted by law.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
5.01 Successors and Assigns Included in Parties. Whenever one of the parties hereto is
named or referred to herein, the successors and assigns of such party shall be included and all
covenants and agreements contained in this Mortgage, by or on behalf of Mortgagor or
Mortgagee, shall bind and inure to the benefit of their respective successors and assigns, whether
so expressed or not.
5.02 Headings. The headings of the articles, sections, paragraphs and subdivision of
this Mortgage are for convenience of reference only, are not to be considered a part hereof, and
shall not limit or expand or otherwise affect any of the terms hereof.
5.03 Invalid Provisions to Affect no Others. In the event that any of the covenants,
agreements, terms or provisions contained in the Agreement, this Mortgage or any other
instrument securing the Agreement shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining covenants, agreements, terms or provisions contained herein and in the
Agreement and any other instrument securing the Agreement shall be in no way affected,
prejudiced or disturbed thereby.
5.04 Changes. Neither this Mortgage nor any term hereof may be changed, waived,
discharged or terminated orally, or by any action or inaction, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge or termination is
sought. Any agreement hereafter made by Mortgagor and Mortgagee relating to this Mortgage
shall be superior to the rights of the holder of any intervening lien or encumbrance.
12
5.05 Governing Law. This Mortgage is made by Mortgagor and accepted by
Mortgagee with reference to the laws of the State of Florida and shall be construed, interpreted,
enforced and governed by and in accordance with such law.
5.06 INTENTIONALLY DELETED.
5.07 Mortgagor as Lessor. Mortgagor shall faithfully perform the covenants of
Mortgagor as lessor under any present and future leases, affecting all or any portion of the
Mortgaged Property, and neither do nor neglect to do, nor permit to be done, anything which
may cause the termination of said leases, or any of them, or which may diminish or impair their
value, or the rents provided for therein, or the interest of Mortgagor or Mortgagee therein or
thereunder.
5.08 INTENTIONALLY DELETED.
5.09 Waiver of Homestead Exemption; Time of Essence. Each individual Mortgagor,
for himself and family, hereby waives and renounces all homestead exemption rights provided
for by the Constitution and Laws of the United States and of the State of Florida in and to the
Mortgaged Property as against the collection of the secured indebtedness, or any part thereof;
and Mortgagor agrees that where, by the terms of the conveyance or the Agreement secured
hereby, a day is named or a time fixed for the payment of any sum of money or the performance
of any agreement, the time stated enters into the consideration and is of the essence of the whole
contract.
5.10 Prior Liens. Except for any mortgage or easement described in Sections 3.01 and
3.02 of this Mortgage, Mortgagor shall keep the Mortgaged Property free from all other prior
liens and, upon demand of Mortgagee, pay and procure release of any such other lien which in
any way may impair the security of this Mortgage.
5.11 Mortgagor's Duty to Defend. Mortgagor will defend, at its own cost and expense,
and indemnify and hold Mortgagee harmless from, any action, proceeding or claim affecting the
Mortgaged Property, the Agreement or any other loan document. Costs and expenses will
include all reasonable attorney's fees.
If Mortgagor neglects or refuses to act pursuant to this paragraph, Mortgagee, at its
option (whether electing to declare the entire secured indebtedness due and collectible or not, or
to pursue other remedies for an event of default), may pay for all reasonable attorney's fees,
costs and expenses incurred in any such action. All such payments, bearing interest thereon from
the time of default as determined by prime rate, plus 100 basis points, as quoted in the Wall
Street Journal, as of the effective day of any default and shall accrue at that rate, from time to
time, as of the date of default, shall be deemed a part of the secured indebtedness and shall be
immediately due and payable by Mortgagor to Mortgagee.
5.12 Compliance with Law. The Mortgagor warrants and represents the Mortgagor has
complied, and shall hereafter comply, with all valid laws, rules, ordinances and regulations of the
federal, state and local government, and all agencies and subdivisions thereof which laws rules,
ordinances and regulations apply or relate to the Mortgaged Property, the development,
construction and improvements existing or contemplated thereon or as a part thereof, and the sale
13
or other disposition of the Mortgaged Property, or parts thereof, or the improvements now or
hereafter located thereon or a part thereof, including, but not limited to, all such laws, rules,
ordinances, and regulations regarding land use, zoning, building, subdivision, environment,
OSHA, pollution and sales practices.
5.13 Construction. This Mortgage and all related loan documents, including but not
limited to the Agreement, shall not be construed more strongly against any party regardless of
who was more responsible for its preparation.
5.14 Addresses for Notices.
A. Any notice, report, demand or other instrument authorized or required to be given
or furnished under this Mortgage to Mortgagor or Mortgagee shall be deemed given or furnished
when addressed to the party intended to receive the same, at the address of such party on the first
page hereof, and delivered at such address by personal delivery, national overnight courier
company, or when mailed by first class U.S. Mail, postage prepaid and deposited into the U.S.
Mail, being deemed the delivery of notice, or when given by facsimile transmission or via e-
mail, as follows:
To Mortgagor: MAINSTREET CLEARWATER DEVELOPMENT, LLC.
400 Cleveland Street, Suite 200
Clearwater, Florida 33755
Fax: (727)
To Mortgagee: Attn: City Attorney
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
FAX # (727) 562-4021
B. Either party may change the address to which any such notice, report, demand or
other instrument is to be delivered or mailed, by furnishing written notice of such change to the
other party, but no such notice of change shall be effective unless and until received by such
other party.
5.15 Termination of Agreement. This Performance Mortgage shall not be affected by
termination of the Agreement, to the extent that the CRA (Mortgagee) has expended funds or is
obligated to expend funds for which Mortgagor is liable to reimburse Mortgagee pursuant to the
Agreement and all obligations under this Performance Mortgage shall survive until Mortgagee
has satisfied its liabilities and fulfilled its obligations to Mortgagee under the Agreement.
5.16 Mortgagee's Satisfaction of Morta e. Notwithstanding anything to the contrary
elsewhere contained in this Mortgage, if during the term of this Mortgage, Mortgagor seeks to
sell the Mortgaged Property or re-finance the mortgage indebtedness described in Section 3.01
above and the Purchaser of the Mortgaged Property or the lender refinancing said indebtedness
requires that this Mortgage be satisfied as a condition to its closing of said sale or re-financing,
then in such event, Mortgagee shall furnish a written satisfaction of this Mortgage in recordable
14
form upon (a) Mortgagor's presentation of reasonable evidence that one of the foregoing events
has occurred and (b) Mortgagor's payment to Mortgagee of an amount equal to the sum which
would be due Mortgagee if Mortgagor had failed to comply with the provisions of Section 6.02
of the Agreement as of the date of the closing of any such sale or re-financing.
NO DOCUMENTARY STAMP TAXES OR INTANGIBLE PERSONAL PROPERTY
TAXES ARE DUE ON THIS MORTGAGE BECAUSE IT SECURES THE
PERFORMANCE OF AN OBLIGATION, NOT THE PAYMENT OF MONEY.
IN WITNESS WHEREOF, the Mortgagor has made, executed, sealed and delivered this
Mortgage, the day and year first above written.
Signed, sealed and delivered
in the presence of:
Print Name
Print Name
STATE OF
COUNTY OF
MAINSTREET CLEARWATER
DEVELOPMENT, LLC,
a Florida limited liability company
By:
Kevin Burke, its managing member
I HEREBY CERTIFY, that on this day personally appeared before me, an officer duly
authorized to administer oaths and take acknowledgments, by Kevin Burke, as managing
member of MAINSTREET CLEARWATER DEVELOPMENT, LLC., a Florida limited
company, known to be the individual described in, or who produced as
identification, and who executed the foregoing instrument, and acknowledged before me that he
executed the same as his free act and deed for the purposes therein expressed.
WITNESS my hand and official seal at
this day of
2010.
said County and State,
Notary Public
Print Name
My Commission Expires:
15
EXHIBIT "A"
Lots S and 6 of EARLL AND TATE'S SUBDIVISION, according to the map or plat thereof as
recorded in Plat Book 1, page 20, of the Public Records of Hillsborough County, Florida, of
which Pinellas County was formerly a part.
42775721x3
16
KEN BURKE, CLERK OF COURT
PINELLAS COUNTY FLORIDA
1NST# 2010228920 08/13/2010 at 10:54 AM
OFF REC BK: 17001 PG: 319,322
DocType:AGM RECORDING. $35.50
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
[Tony's Pizza Restaurant]
This Memorandum of Agreement for Development and Qisposition of Property
("Memorandum") is made this day of JWA 2040, 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 Mainstreet
Clearwater Developmerf LLC, a Florida limited liability partnership (the "Developer"),
whose address is 400 Cleveland St., Suite 200, Clearwater, FL 33755.
This Memorandum pertains to an Agreement for Development of Property
(Tony's Pizza Restaurant), by and between the Agency and the Developer, dated as of
2 , ZM , (the "Development Agreement"), for a project site as
described in Exhibit "A" attached hereto and made a part hereof for the development,
construction and operation of the Tony's Pizza Restaurant 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 /ZA day of 2010.
[SIGNATURE PAGES FOLLOW]
D-]
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
Approved as to form:
G
Pamela K. Akin
City Attorney
By: l/
KmgrKk V. Hibbard
Chairperson
Attest-
C
D-2
`'pjjIPI I I I IIf,, i ,If
4-a-z.
?•• TFR ??Fy.?
is E. Gou eau tOjkpOpATE ?.o5i-/- .
lerk o * _
. z
15, L)
FL i O
MAINSTREET CLEARWATER
DEVELOPMENT, LLC
(SEAL)
ATTEST:
By:, as
Its
By: , as
Its: Secretary
,
STATE OF FLORIDA D
COUNTY OF PINELLAS
The foregoing instrument was ackno,wiedged before me this day of
2010, by .'` of MAINSTREET CLEARWATER
DEVELOPMENT, LLC, a Florida limited '"liability partnership, on behalf of the
partnership. He is personally known 9p,,1 ie or has produced a valid driver's license as
identification. r'
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
D-3
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
[TONY'S PIZZA RESTAURANT]
ALL-PURPOSE ACKNOWLEDGEMENT
State of California.
County of Los Angeles
On July 26, 2010 before me, Michelle Maltar, Notary Public, personally appeared
Kevin Burke, who proved to me on the basis of satisfactory evidence to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
Carr. rug"
WITNESS my hand and official seal.., Marrw,?uc.rara?
cor?a? •
1 :
(Affix seal in the above blank space)
Signature of Notary
EXHIBIT "E"
AGREEMENT EXPIRATION CERTIFICATE
[Tony's Pizza Restaurant]
This Agreement Expiration Certificate ("Certificate") is made this day of
by and between the COMMUNITY REDEVELOPMENT
I _I 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 MAINSTREET CLEARWATER DEVELOPMENT, LLC, a
Florida limited liability partnership (the "Developer"), whose address is 400 Cleveland
St., Suite 200, Clearwater, FL 33755.
This Certificate pertains to an Agreement for Development (Tony's Pizza
Restaurant), by and between the Agency and the Developer, dated as of
, 2010, (the "Development Agreement"), for a project site as
described in Exhibit "A" attached hereto and made a part hereof for the development,
construction and operation of Tony's Pizza Restaurant 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 Tony's
Pizza Restaurant Project is no longer subject to any restriction, limitation, or
encumbrance imposed by the Development Agreement. This Certificate has been
executed by the parties to the Development Agreement as provided in Section
thereof and constitutes a conclusive determination of satisfactory completion of all
obligations under such Agreement and that the Development Agreement has expired,
except for those matters which survive as noted above.
A copy of the fully-executed Development Agreement is on file with the
City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue,
Clearwater, Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and
their respective seals affixed as of the day of ,
E-1
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
(SEAL)
ATTEST:
By:
Its Chairman
F?'P?
By: , as
Its: Executive Director
MAINSTREET CLEARWATER
DEVELOPMENT, LLC
By:_
Its
(SEAL)
ATTEST:
By: , as
Its: Secretary
E-2
STATE OF FLORIDA
COUNTY OF PINELLAS
E?1?
The foregoing instrument was acknowledged before me this day of
by of MAINSTREET CLEARWATER
DEVELOPMENT, LLC., 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)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
EXHIBIT "F"
AGREEMENT TERMINATION CERTIFICATE
[Tony's Pizza Restaurant]
This Agreement Termination Certificate ("Certificate") is made this _ day of
, , by and between the COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State
of Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL 32521, and
MAINSTREET CLEARWATER DEVELOPMENT, LLC„ a Florida limited liability partnership
(the "Developer"), whose address is 400 Cleveland St., Suite 200, Clearwater, FL 33755.
This Certificate pertains to a Development Agreement (Tony's Pizza Restaurant),
by and between the Agency and the Developer, dated as of , 2010 (the
"Development Agreement"), which provides, among other things, for certain incentives to be
provided for the project site as described in Exhibit "A" attached hereto and made a part hereof,
for the development, construction and operation of Tony's Pizza Restaurant, as same is defined
in the Development Agreement.
The Development Agreement has terminated in accordance with its own terms as
provided in Section 9.05 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 9.06 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 Project is no longer subject to any restrictions, limitations or
encumbrances imposed by the Development Agreement.
A copy of the fully-executed Development Agreement is on file with the City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater,
Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of the - day of ,
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
(SEAL)
ATTEST:
By: , as
Its: Executive Director
By:
Its Chairman
MAINSTREET CLEARWATER
DEVELOPMENT, LLC
By:_
Its
(SEAL)
ATTEST:
By: , as
Its: Secretary
F-2
as
as
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
by , Chairman of the Community Redevelopment
Agency of the City of Clearwater, a public body corporate and politic of the State of Florida, on
behalf of the Agency. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, by of Mainstreet Clearwater Development, LLC, 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)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
F-3
PREPARED BY AND RETURN TO:
Dale M. Vash, Esquire
Fowler White Boggs P.A.
501 E. Kennedy Blvd., Suite 1700
Tampa, Florida 33602
KEN BURKE, CLERK OF COURT
PINELLAS COUNTY FLORIDA
INST## 2010228921 08/13/2010 at 10;54 AM
OFF REC SK: 17001 PG: 323338
DOCType:MTGET RECORDING: $137.60
NO DOCUMENTARY STAMP TAXES ARE DUE ON THIS MORTGAGE BECAUSE IT
SECURES THE PERFORMANCE OF AN OBLIGATION, NOT THE PAYMENT OF
MONEY.
PERFORMANCE MORTGAGE
THIS PERFORMANCE MORTGAGE, made and entered into this IZ day of
u.( , 2010, between MAINSTREET CLEARWATER DEVELOPMENT, LLC.,
a Florid limited liability company, hereinafter referred to as "Mortgagor", whose mailing
address is: 400 Cleveland Street, Suite 200, Clearwater, Florida 33755, and 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, hereinafter referred to as "Mortgagee", whose mailing address is: 112 S.
Osceola Avenue, Clearwater, FL 33756,
WITNESSETH:
WHEREAS, Mortgagor and Mortgagee entered into that certain Development Agreement
dated J u.?j /Z , 2010, [the "Agreement"], a memorandum of which Agreement is
to be recorded simultaneously herewith, wherein it is agreed that the Mortgagor has certain
development obligations as to that certain land situate in Pinellas County, Florida, as described in
Exhibit "A" attached hereto; and
WHEREAS, until the Termination Date or Expiration Date of the Agreement, it is the
intention by virtue of this Mortgage to secure the full performance by the Mortgagor, in
accordance with the said Agreement and proper application of all credits and fees applicable or
payable under said Agreement in the amount of fifty-thousand dollars ($50,000.00); it is
NOW, THEREFORE, to secure the performance and observance by Mortgagor of all
covenants and conditions in the Agreement and in this Mortgage and in all other instruments
securing the Agreement, and in order to charge the properties, interest and rights hereinafter
described with such payment, performance and observance and for and in consideration of the
sum of One Dollar ($1.00) paid by Mortgagee to Mortgagor this date, and for other valuable
considerations as provided in the Agreement, the receipt of which is acknowledged, Mortgagor
does hereby grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage,
hypothecate, pledge, deliver, set over, warrant and confirm unto Mortgagee, its successors and
assigns forever, the property described in Exhibit "A" attached hereto and made a part hereof by
reference and situated in Pinellas County, Florida.
1
TOGETHER with all buildings, structures and improvements of every nature whatsoever
now or hereafter situated on the land, and all fixtures, machinery, appliances, equipment,
furniture, and personal property of every nature whatsoever now or hereafter owned by
Mortgagor and located in or on, or attached to, or used or intended to be used in connection with
or without the operation of, the land, buildings, structures or other improvements, and owned by
Mortgagor, including all extensions, additions, improvements, betterments, renewals,
substitutions, and replacements to any of the foregoing and all of the right, title and interest of
mortgagor in and to any such personal property or fixtures.
TOGETHER with all easements, rights of way, streets, ways, alleys, passages, sewer
rights, waters, water courses, water rights and powers, and all tenements, hereditaments and
appurtenances whatsoever, in any way belonging, relating or appertaining to any of the property
hereinabove described, or which hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by Mortgagor, and the reversion and rever-
sions, remainder and remainders, and all the estate, right, title, interest, property, possession,
claim and demand whatsoever, at law as well as in equity, of Mortgagor of, in and to the same.
TOGETHER with all rents, royalties, issues, profits, revenue, income and other benefits
from the property described herein, to be applied against the indebtedness and other sums
secured hereby, provided, however, that permission is hereby given to Mortgagor so long as no
default has occurred hereunder, to collect, receive, take, use and enjoy such rents, royalties,
issues, profits, revenue, income and other benefits as they become due and payable, but not in
advance thereof. The foregoing assignment shall be fully operative without any further action on
the part of either party and specifically Mortgagee shall be entitled, at its option, upon the
occurrence of a default hereunder, to all rents, royalties, issues, profits, revenue, income, and
other benefits from the property whether or not Mortgagee takes possession of the property.
Upon any such default hereunder, the permission hereby given to Mortgagor to collect such
rents, royalties, issues, profits, revenue, income and other benefits from the property shall termi-
nate and such permission shall not be reinstated upon a cure of the default without Mortgagee's
specific consent. Neither the exercise of any rights under this paragraph by Mortgagee nor the
application of any such rents, royalties, issues, profits, revenue, income or other benefits to the
indebtedness and other sums secured hereby, shall cure or waive any default or notice of default
hereunder or invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
TOGETHER with a security interest in all articles of personal property and all materials
delivered to the property described herein for use in any construction being conducted thereon,
and owned by Mortgagor, and all contract rights, general intangibles, actions and rights in action,
including all rights to insurance proceeds, and all proceeds, products, replacements, additions,
substitutions, renewals and accessions of any of the foregoing. This Mortgage is a self-operative
security agreement with respect to such property, but Mortgagor agrees to execute and deliver on
demand such other security agreements, financing statements and other instruments as
Mortgagee may request in order to perfect its security interest or to impose the lien hereof more
specifically upon any of such property. Mortgagee shall have all the rights and remedies in
addition to those specified herein of a secured party under the Uniform Commercial Code of
Florida.
2
ALL OF WHICH real and personal property, rights and intangibles are herein referred to
as the "Mortgaged Property".
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto
Mortgagee, its successors and assigns, to its own property use and benefit forever, subject,
however, to the terms and conditions herein.
PROVIDED ALWAYS, that if all obligations are timely performed and the warranties
and conditions of this Mortgage are complied with, this Mortgage shall be null and void, and so
long as Mortgagor is not in default under the Agreement, it shall be entitled to the full benefit of
its contract rights under said Agreement.
Mortgagor covenants and agrees with Mortgagee as follows:
ARTICLE ONE
COVENANTS OF MORTGAGOR
1.01 Performance of Agreement, Morta e. Mortgagor shall perform, observe and
comply with all provisions hereof, of the Agreement and of every other instrument securing the
Agreement.
1.02 Warranty of Title. Mortgagor covenants and warrants that it is seized of an
indefeasible estate in fee simple in the real property hereby mortgaged, has good and absolute
title to all existing personal property hereby mortgaged or made subject to the security interest
hereby created and has good right, full power and lawful authority to convey, mortgage and
encumber the same as provided herein; that Mortgagee may at all times peaceably and quietly
enter upon, hold, occupy and enjoy the real property hereby mortgaged and every part thereof;
that the real property and all existing personal property hereby mortgaged or made subject to the
security interest hereby created is free and clear of all liens, security interests, charges and
encumbrances whatsoever, except for easements of record and the lien for property taxes not yet
due and payable and any mortgage described in Section 3.01 below. Mortgagor shall and will
make such further assurances to perfect Mortgagee's fee simple title to the real property hereby
mortgaged, and the title to the personal property hereby mortgaged or made subject to the securi-
ty interest hereby created as may reasonably be required. Except as herein provided, Mortgagor
fully warrants the title to the real property and all existing personal property hereby mortgaged or
made subject to the security interest hereby created, and every part hereof, and will forever
defend the same against the claims of all persons whomsoever.
1.03 Taxes and Liens.
A. Mortgagor shall pay promptly, when and as due, and shall promptly exhibit to
Mortgagee receipts for the payment of, all taxes, assessments, rates, dues, charges, fees, levies,,
fines, impositions, liens, liabilities, obligations and encumbrances of every kind whatsoever now
or hereafter imposed, levied or assessed upon or against the Mortgaged Property or any part
thereof, and any charge which, if unpaid, would become a lien or charge upon the Mortgaged
Property prior to or equal to the lien of this mortgage, before they become delinquent and before
any interest attaches or any penalty is incurred.
3
B. Mortgagor shall not permit or suffer any mechanics', laborers', materialmen's,
statutory or other lien which might or could be prior or equal to the lien of this Mortgage to be
created or to remain a lien upon any of the Mortgaged Property.
1.04 Insurance.
A. Mortgagor shall at its sole expense obtain for, deliver to and maintain for the
benefit of Mortgagee, during the life of this Mortgage, insurance policies in such amounts as
Mortgagee may require, insuring the Mortgaged Property against fire, flood, extended coverage,
and such other insurable hazards, casualties, contingencies and public liability insurance, as
Mortgagee may require, and shall pay promptly, when due, any premiums on such insurance
policies and on any renewals thereof. The form of such policies and the companies issuing them
shall be acceptable to Mortgagee. All such policies and renewals thereof shall be held by
Mortgagee and shall contain a non-contributory mortgagee endorsement making losses payable
to Mortgagee subject to the rights of any mortgagee described in Section 3.01 below. The
coverage under such policies shall be limited to the improvements now or hereafter located on
the Mortgaged Property. At least fifteen (15) days prior to the expiration date of all such
policies, renewals thereof satisfactory to Mortgagee shall be delivered to Mortgagee, Mortgagor
shall deliver to Mortgagee receipts evidencing the payment of all premiums on such insurance
policies and renewals. Delivery of the insurance policies and renewals thereof shall constitute an
assignment to Mortgagee, as further security, of all unearned premiums. In the event of loss,
Mortgagor will give immediate written notice to Mortgagee and Mortgagee may make proof of
loss if not made promptly by Mortgagor. In the event of the foreclosure of this Mortgage or any
other transfer of title to the Mortgaged Property in extinguishment of the indebtedness and other
sums secured hereby, all right, title and interest of Mortgagor in and to all insurance policies and
renewals thereof then in force shall pass to the. purchaser or grantee.
B. Mortgagor hereby assigns to Mortgagee all proceeds from any insurance policies,
and Mortgagee is hereby authorized and empowered, at its option, to adjust or compromise any
loss under any insurance policies on the Mortgaged Property, and to collect and receive the
proceeds from any such policy or policies. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Mortgagee alone, and not to Mortgagor
and Mortgagee jointly. After deducting from such insurance proceeds any expenses incurred by
Mortgagee in the collection or handling of such funds, Mortgagee may apply the net proceeds, at
its option, either toward restoring the improvements or as a credit on any portion of the
indebtedness and other sums secured hereby, whether then matured or to mature in the future, or
at the option of Mortgagee such sums either wholly or in part may be paid over to the Mortgagor
to be used to repair such improvements or to build new improvements in their place or for any
other purpose or object satisfactory to Mortgagee, without affecting the lien of this Mortgage for
the full amount secured hereby before such payment took place. Mortgagee shall not be
responsible for any failure to collect any insurance proceeds due under the terms of any policy
regardless of the cause of such failure. Notwithstanding anything in the foregoing to the
contrary, the rights of Mortgagee under this Subsection B shall be subject and subordinate to the
rights of any mortgagee described in Section 3.01 below.
C. Mortgagor shall at its sole expense obtain for, deliver to and maintain for the
benefit of Mortgagee, during the life of this Mortgage, liability insurance policies relating to the
4
Mortgaged Property, in such amounts, with such companies and in such form as may be required
by Mortgagee. Mortgagee may require such policies to contain an endorsement, in form satis-
factory to Mortgagee, naming Mortgagee as an additional insured thereunder. Mortgagor shall
pay promptly, when due, any premiums on such insurance policies and renewals thereof.
D. In the event of a foreclosure of this Mortgage, the purchaser of the Mortgaged
Property shall succeed to all the rights of Mortgagor, including any right to unearned premiums,
in and to all policies of insurance assigned and delivered to Mortgagee, with respect to all
property herein encumbered.
E. Subject to the rights of any mortgagee described in Section 3.01 below,
Mortgagee may, at its option, direct the payment of the insurance proceeds into an escrow
account at a bank, title insurance company or law firm designated by Mortgagee to be held for
the benefit of the Mortgagor and Mortgagee during the re-building of the Mortgaged Property
and shall be released by Mortgagee upon the approval of the inspecting architect or engineer that
the Mortgaged Property has been restored to the condition it was prior to the loss. In the event
additional financing is necessary to meet the requirements of any general contract which might
be used to effect such reconstruction, then the Mortgagor shall place said additional funds into
the escrow account.
1.05 INTENTIONALLY DELETED.
1.06 Condemnation. If all or a material part (which determination shall be made by
Mortgagee in its sole and absolute discretion) of the Mortgaged Property shall be damaged or
taken through condemnation (which term when used herein shall include any damage or taking
by any governmental authority or any other authority authorized by the laws of the State of
Florida or the United States of America to so damage or take, and any transfer by private sale in
lieu thereof), either temporarily or permanently, at the option of Mortgagee, Mortgagor shall be
deemed in default hereunder. Mortgagee shall be entitled to all compensation awards, damages,
claims, rights of action and proceeds of, or on account of, any damage or taking through
condemnation and is hereby authorized, at its option, to commence, appear in and prosecute, in
its own or Mortgagor's name, any action or proceeding relating to any condemnation, and to
settle or compromise any claim in connection therewith. All such compensation awards,
damages, claims, rights of action and proceeds, and any other payments or relief, and the right
thereto, are hereby assigned by Mortgagor to Mortgagee, which, after deducting therefrom all its
expenses, including, without limitation, attorneys' fees, may release any monies so received by it
without affecting the lien of this Mortgage or may apply the same, in such manner as Mortgagee
shall determine, to the reduction of the sums secured hereby and to any prepayment charge
provided in the Agreement, this Mortgage or other instrument securing the Agreement. Any
balance of such monies then remaining shall be paid to Mortgagor. Mortgagor agrees to execute
such further assignments of any compensation, awards, damages, claims, rights of action and
proceeds as Mortgagee may require. Notwithstanding anything in the foregoing to the contrary,
the rights of the Mortgagee under this Section 1.06 shall be subject and subordinate to the rights
of any mortgagee described in Section 3.01 below.
5
.1.07 Care of Property.
A. Mortgagor shall preserve and maintain the Mortgaged Property in good condition
and repair. Except as contemplated and permitted elsewhere in this mortgage, Mortgagor shall
not remove, demolish, alter or change the use of any structure or other improvement presently or
hereafter on that portion of the Mortgaged Property described as the Project in the Agreement
without the prior written consent of Mortgagee, nor permit, commit or suffer any waste,
impairment or deterioration of the Mortgaged Property or of any part thereof, and will not take
any action which will increase the risk of fire or other hazard to the Mortgaged Property or to
any part thereof.
B. Mortgagee may enter upon and inspect the Mortgaged Property at any reasonable
time during the life of this Mortgage.
C. Mortgagor will promptly comply with all present and future laws, ordinances,
rules and regulations of any governmental authority affecting the Mortgaged Property or any part
thereof.
1.08 Transfer of Property If all or any part of the Mortgaged Property or any
interest therein is sold or transferred by Mortgagor without Mortgagee's prior written consent,
excluding (a) the creation of a lien or encumbrance subordinate to this mortgage, (b) the creation
of a purchase money security interest for appliances, fixtures or equipment, .(c) a transfer by
devise, descent or by operation of law upon the death of a joint tenant, (d) the grant of any
leasehold interest of ten (10) years or less not containing an option to purchase, or (e) the
refinancing of any mortgage described in Section 3.01 below in an amount not to exceed the loan
amount described in Section 3.01 below. Mortgagee may, at Mortgagee's option, declare a
default hereunder. Mortgagee shall have waived such option to accelerate if, prior to the sale or
transfer, Mortgagee and the person to whom the mortgaged property is to be sold or transferred
reach agreement in writing that the credit of such person is satisfactory to Mortgagee and that the
interest payment on the sums secured by this mortgage shall be at such rate as Mortgagee shall
request.
1.09 Further Assurances. At any time and from time to time, upon Mortgagee's
request, Mortgagor shall make, execute and deliver or cause to be made, executed and delivered
to Mortgagee any and all such further mortgages, instruments of further assurance, certificates,
updated financial statements and secure financial information and any other documents as
Mortgagee may consider necessary or desirable in order to effectuate, complete or perfect, or to
continue and preserve the obligations of Mortgagor under the Agreement and this Mortgage, and
the lien of this Mortgage as a valid and existing lien upon all of the Mortgaged Property, whether
now owned or hereafter acquired by Mortgagor. Upon any failure by Mortgagor to do so,
Mortgagee may make, execute, record, file, re-record or refile any and all such mortgages,
instruments, certificates and documents for and in the name of Mortgagor, and Mortgagor hereby
irrevocably appoints Mortgagee the agent and attorney-in-fact of Mortgagor to do so. Mortgagor
shall promptly deliver to Mortgagee receipts showing payment in full of all of the above items
which are not paid from the escrow account, if any, herein established.
1.10 INTENTIONALLY DELETED
6
1.11 After Acquired Property. The lien of this Mortgage will automatically attach,
without further act, to all after acquired property located in or on, or attached to, or used or
intended to be used in connection with or with the operation of, the Mortgaged Property or any
part thereof.
1.12 Expenses. Mortgagor shall pay or reimburse Mortgagee for all costs, charges and
expenses, including reasonable attorneys' fees and disbursements and costs incurred or paid by
Mortgagee in any threatened, pending or completed action, proceeding or dispute in which
Mortgagee is or might be made a party or appears as a party plaintiff or party defendant and
which affects or might affect the Agreement, this Mortgage or any other instrument securing the
Agreement, or the Mortgaged Property or any part thereof, or the interests of Mortgagor or
Mortgagee therein, including but not limited to the foreclosure of this Mortgage, condemnation
involving all or part of the Mortgaged Property or any action to protect the security hereof,
including all appellate proceedings in connection with or arising out of any of the foregoing. All
costs, charges and expenses so incurred or paid by Mortgagee shall become due and payable
immediately, whether or not there be notice, demand, attempt to collect or suit pending. The
amounts so incurred or paid by Mortgagee, together with interest thereon at the Default Rate as
hereinafter defined from the date incurred until paid by Mortgagor, shall be secured by the lien
of this mortgage.
1.13 Performance of Defaults. If Mortgagor defaults in the payment of any tax,
assessment, encumbrance or other imposition, in its obligation to furnish insurance hereunder or
in the performance or observation of any other covenant, condition or term in this Mortgage or in
any other instrument securing the Agreement, Mortgagee may at its option perform, correct or
observe the same, and all payments made (whether such payments are regular or accelerated
payments) and costs and expenses incurred or paid by Mortgagee in connection therewith shall
become due and payable immediately, whether or not there be notice or demand. The amounts
so incurred or paid by Mortgagee, together with interest thereon at the Default Rate as
hereinafter defined from the date incurred until paid by Mortgagor, shall be secured by the lien
of this Mortgage. Nothing contained herein shall be construed as requiring Mortgagee to
advance or expend monies for any purpose mentioned in this paragraph, or for any other
purpose. Mortgagee is hereby empowered to enter and to authorize others to enter upon the
Mortgaged Property or any part thereof for the purpose of performing or observing any such
defaulted covenant, condition or term, without thereby becoming liable to Mortgagor or any
person in possession holding under Mortgagor.
1.14 Estoppel Affidavits. Either Mortgagor or Mortgagee within ten (10) days after
written request from the other shall furnish a written statement, duly acknowledged, setting forth
the ongoing or unmet obligations under the Agreement, and any other unpaid sums secured
hereby, and whether or not any offsets or defenses exist.
ARTICLE TWO
nF.F A T TT .TC
2.01 Event of Default. The term default, wherever used in this Mortgage, shall mean
any one or more of the following events:
7
A. Breach of or failure by Mortgagor to duly keep, perform and observe any other
covenant, condition or agreement in the Agreement, this Mortgage, any other instrument
securing the Agreement or any other instrument collateral to the Agreement or executed in
connection with the sums secured hereby.
B. If the Mortgagor at any time shall: (i) file a voluntary petition in bankruptcy, or
(ii) be adjudicated as bankrupt or insolvent, or (iii) seek or consent to or acquiesce in the appoint-
ment of a trustee, receiver, master or liquidator of all or any substantial part of the Mortgaged
Property or of any or all of the rents, revenues, issues, earnings, profits or income thereof, or (iv)
make any general assignment for the benefit of creditors; or make an admission in writing of its
inability to pay its debts generally as they become due; or (v) if a court of competent jurisdiction
enters an order, judgment or decree approving a petition filed against Mortgagor seeking any
arrangement, composition, readjustment, liquidation, or similar relief under any present or future
federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief
for debtors.
C. Material breach of any warranty or material untruth of any representation of
Mortgagor contained in the Agreement, this Mortgage or any other instrument securing the
Agreement.
D. Should foreclosure proceedings (whether judicial or otherwise) be instituted on
any mortgage or any junior lien of any kind secured by any portion of the Mortgaged Property,
and not be terminated within forty-five (45) days.
E. Should Mortgagor default in any other loan from Mortgagee to Mortgagor.
F. Except for sale of portions of the Mortgaged Property made in the ordinary course
of business for which a partial release or consent is obtained, should Mortgagor encumber, sell or
otherwise dispose of the Mortgaged Property, or any part or interest thereof, without the consent
in writing of the Mortgagee.
2.02 Mortgagee's Power of Enforcement. If an event of default shall have occurred,
Mortgagee may, either with or without entry or taking possession as hereinabove provided or
otherwise, proceed by suit or suits at law or in equity or by any other appropriate proceeding or
remedy; (a) to enforce the Agreement or the performance of any term hereof or any other right;
(b) to foreclose this Mortgage and to sell, as an entirety or in separate lots or parcels, the
Mortgaged Property, under the judgment or decree of a court or courts of competent jurisdiction;
or (c) to pursue any other remedy available to it. Mortgagee may take action either by such
proceedings or by the exercise of its powers with respect to entry or taking possession, or both,
as the Mortgagee may determine.
2.03 Receiver. If an event of default shall have occurred, Mortgagee, to the extent
permitted by law and without regard to the value or occupancy of the security, shall be entitled as
a matter of right if it so elects to the appointment of a receiver to enter upon and take possession
of the Mortgaged Property and to collect all rents, revenues, issues, income, products and profits
thereof and apply the same as the court may direct. The receiver shall have all rights and powers
permitted under the laws of the State of Florida and such other powers as the court making such
8
appointment shall confer. The expenses, including receiver's fees, attorney's fees, costs and
agent's compensation, incurred pursuant to the powers herein contained shall be secured by this
Mortgage. The right to enter and take possession of and to manage and operate the Mortgaged
Property, and to collect the rents, issues and profits thereof, whether by a receiver or otherwise,
shall be cumulative to any other right or remedy hereunder or afforded by law, and may be
exercised concurrently therewith or independently thereof. Mortgagee shall be liable to account
only for such rents, issues and profits as are actually received by Mortgagee.
2.04 Deficiency. In case of a foreclosure sale of all or any part of the Mortgaged
Property and of the application of the proceeds of sale Mortgagee shall be entitled to enforce
payment of and to receive any and all amounts due as a result of Mortgagor's default as defined
in Section 2.01 of this Mortgage and to recover judgment for any portion thereof remaining
unpaid, with interest. Mortgagor hereby agrees, to the extent permitted by law, that no recovery
of any such judgment by Mortgagee and no attachment or levy of any execution upon any of the
Mortgaged Property or and other property shall in any way affect the lien of this Mortgage upon
the Mortgaged Property or any part thereof, or any lien, rights, powers or remedies of Mortgagee
hereunder, but such lien, rights, powers and remedies shall continue unimpaired as before.
2.05 Delay_or Omission No Waiver. No delay or omission of Mortgagee or any holder
or the Agreement to exercise any right, power or remedy accruing upon any event of default
shall exhaust any such event of default or to constitute acquiescence therein. Every right, power
and remedy given to Mortgagee may be exercised from time to time and as often as may be
deemed expedient by Mortgagee.
2.06 No Waiver of One Default to Affect Another. No waiver of any event of default
hereunder shall extend to or affect any subsequent or any other event of default then existing, or
impair any rights, powers or remedies consequent thereon. If Mortgagee (a) grants forbearance
or an extension of time for performance secured hereby; (b) takes other or additional security for
the performance thereof, (c) waives or does not exercise any right granted in the Agreement, this
Mortgage or any other instrument securing the Agreement; (d) releases any part of the
Mortgaged Property from the lien of this Mortgage or any other instrument securing the
Agreement; (e) consents to the filing of any declaration of condominium, map, plat or replat of
the land; or (f) makes or consents to any agreement changing the terms of this Mortgage or
subordinating the lien or any charge hereof, no such act or omission shall release, discharge,
modify, change or affect the original liability under the Agreement, this Mortgage, or otherwise
of Mortgagor, or any subsequent purchaser of the Mortgaged Property or any part thereof or any
maker, co-signer, endorser, surety or guarantor. No such act or omission shall preclude
Mortgagee from exercising any right, power or privilege herein granted or intended to be granted
in case of any event of default then existing or of any subsequent event of default nor, except as
otherwise expressly provided in an instrument or instruments executed by Mortgagee, shall the
lien of this Mortgage be altered thereby. In the event of the sale or transfer by operation of law
or otherwise of all or any part of the Mortgaged Property, Mortgagee, without notice to any
person, firm or corporation, is hereby authorized and empowered to deal with any such vendee or
transferee with reference to the Mortgaged Property or the indebtedness secured hereby, or with
reference to any of the terms or conditions hereof, as fully and to the same extent as it might deal
with the original parties hereto and without in any way releasing or discharging any of the liabili-
ties or undertakings hereunder of the original Mortgagor.
9
2.07 Cumulative. No right, power or remedy conferred upon or reserved to Mortgagee
by the Agreement, this mortgage or any other instrument securing the Agreement is exclusive of
any other right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and remedy given
hereunder or under the Agreement or any other instrument securing the Agreement, or now or
hereafter existing at law, in equity or by statute.
2.08 Default Rate. Any advancements made by and expenses incurred by Mortgagee,
shall bear interest from the due date or the date of advancement or payment by Mortgagee at the
highest contract rate of interest permitted to be charged under the laws of the State of Florida,
which rate is herein referred to as the "Default Rate".
2.09 JURY WAIVER
NOW, SHOULD IT BECOME NECESSARY TO ENFORCE THE AGREEMENT
THROUGH AN ATTORNEY, ANY OF US, WHETHER MAKER, SURETY, OR
ENDORSER ON THIS AGREEMENT, HEREBY AGREES TO PAY ALL COSTS OF
COLLECTION, INCLUDING A REASONABLE ATTORNEYS' FEE, AND INCLUDING
ANY ATTORNEYS' FEES INCURRED BY ANY APPEAL. THE UNDERSIGNED
JOINTLY AND SEVERALLY DO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF9
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR MORTGAGEE ACCEPTING THIS AGREEMENT.
ARTICLE THREE
SUBORDINATION
3.01 Subordination of Mortgage Rights. Mortgagee does hereby acknowledge that this
Performance Mortgage is subordinate to that certain mortgage given by Mortgagor to Yo Nancy,
Inc. for a total loan amount of $1,550,000.00. Furthermore, Mortgagee shall subordinate this
Performance Mortgage to any mortgage given by Mortgagor to secure an indebtedness incurred
by Mortgage to re-finance the total loan amount secured by the aforesaid mortgage and upon
Mortgagor's written request, Mortgagee shall execute a written subordination of this
Performance Mortgage to said re-financing mortgage; however, such subordination may be
withheld by Mortgagee until such time that Mortgagor presents Mortgagee with reasonable
evidence that at said time the Mortgaged Property is of a market value that is equal to or exceeds
the total amount being refinanced plus $50,000.00.
3.02 Subordination of Easement Rights. Provided that Mortgagor is not in default
hereunder, Mortgagee agrees to subordinate the lien of this Mortgage to the rights of the holders
of any easement hereafter granted by Mortgagor which may reasonably be required to furnish to
the Mortgaged Property utilities such as, but not limited to, water, electricity, sanitary and storm
sewers, gas and telephone.
10
ARTICLE FOUR
HAZARDOUS SUBSTANCE
4.01 Mortgagor hereby represents that neither Mortgagor nor, to Mortgagor's
knowledge, any other person has ever used the Mortgaged Property as a storage facility for any
"Hazardous Substance" other than gasoline or motor oil (to the extent same may be Hazardous
Substances) used in the ordinary course of Mortgagor's business.
Mortgagor hereby agrees to indemnify Mortgagee and hold Mortgagee harmless from
and against any and all losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys' fees, costs of any settlement or judgment and claims of any and
every kind whatsoever paid, incurred or suffered by, or asserted against, Mortgagee by any
person or entity or governmental agency for, with respect to, or as a direct or indirect result of,
the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, dis-
charging or release from the premises of any Hazardous Substance (including, without limitation,
any losses, liabilities, including strict liability, substances or standards of conduct concerning any
Hazardous Substance), regardless of whether within the control of Mortgagee, so long as the act
or omission in question occurs prior to the sale of the premises and complete dispossession of
Mortgagor thereunder.
For purposes of this instrument, "Hazardous Substances" shall mean and include those
elements or compounds which are contained in the list of hazardous substances adopted by the
United States Environmental Protection Agency (EPA) and the list of toxic pollutants designated
by Congress or the EPA or defined by any other Federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of
conduct concerning any hazardous, toxic or dangerous waste, substance or material as now or at
any time hereafter in effect.
If Mortgagor receives any notice of (i) the happening of any material event involving the
spill, release, leak, seepage, discharge or cleanup of any Hazardous Substance on the premises or
in connection with Mortgagor's operations thereon or, (ii) any complaint, order, citation or
material notice with regard to air emissions, water discharges, or any other. environmental, health
or safety matter affecting Mortgagor (an "Environmental Complaint") from any person or entity
(including, without limitation; the EPA), then Mortgagor shall immediately notify Mortgagee
orally and in writing of said notice.
Mortgagee shall have the right, but not the obligation, and without limitation of
Mortgagee's rights under this instrument, to enter onto the Mortgaged Property or to take such
other actions as it deems necessary or advisable to clean up, remove, resolve or minimize the
impact of, or otherwise deal with, any such Hazardous Substance or Environmental Complaint
following receipt of any notice from any person or entity (including, without limitation, the EPA)
asserting the existence of any Hazardous Substance or an Environmental Complaint pertaining to
the Mortgaged Property or any part thereof which, if true, could result in an order, suit or other
action against Mortgagor and/or which, in the sole opinion of Mortgagee, could jeopardize its
security under this instrument. All reasonable costs and expenses incurred by Mortgagee in the
exercise of any such rights shall be secured by this instrument and shall be payable by Mortgagor
upon demand.
11
Mortgagee shall have the right, in its reasonable discretion, to require Mortgagor to
periodically (but not more frequently than annually unless an Environmental Complaint is then
outstanding) perform (at Mortgagor's expense) an environmental audit and, if deemed necessary
by Mortgagee, an environmental risk assessment, each of which must be satisfactory to
Mortgagee, of the Mortgaged Property, hazardous waste management practices and/or hazardous
waste disposal sites used by Mortgagor. Said audit and/or risk assessment must be by an
environmental consultant satisfactory to Mortgagee. If the environmental audit or environmental
risk assessment reveals no recognized environmental concerns, Mortgagee shall be solely liable
for the cost of said audit or assessment and shall reimburse Mortgagor for said cost upon
demand. Should Mortgagor fail to perform said environmental audit or risk assessment within
thirty (30) days of the Mortgagee's written request, Mortgagee shall have the right, but not the
obligation, to retain an environmental consultant to perform said environmental audit or risk
assessment. All costs and expenses incurred by Mortgagee in the exercise of such rights shall be
secured by this instrument and shall be payable by Mortgagor upon demand.
Any breach of any warranty, representation or agreement contained in this section shall
be an event of default hereunder and shall entitle Mortgagee to exercise any and all remedies
provided in this instrument, or otherwise permitted by law.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
5.01 Successors and Assigns Included in Parties. Whenever one of the parties hereto is
named or referred to herein, the successors and assigns of such party shall be included and all
covenants and agreements contained in this Mortgage, by or on behalf of Mortgagor or
Mortgagee, shall bind and inure to the benefit of their respective successors and assigns, whether
so expressed or not.
5.02 Headings. The headings of the articles, sections, paragraphs and subdivision of
this Mortgage are for convenience of reference only, are not to be considered a part hereof, and
shall not limit or expand or otherwise affect any of the terms hereof.
5.03 Invalid Provisions to Affect no Others. In the event that any of the covenants,
agreements, terms or provisions contained in the Agreement, this Mortgage or any other
instrument securing the Agreement shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining covenants, agreements, terms or provisions contained herein and in the
Agreement and. any other instrument securing the Agreement shall be in no way affected,
prejudiced or disturbed thereby.
5.04 Changes. Neither this Mortgage nor any term hereof may be changed, waived,
discharged or terminated orally, or by any action or inaction, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge or termination is
sought. Any agreement hereafter made by Mortgagor and Mortgagee relating to this Mortgage
shall be superior to the rights of the holder of any intervening lien or encumbrance.
12
. 5.05 Governing Law. This Mortgage is made by Mortgagor and accepted by
Mortgagee with reference to the laws of the State of Florida and shall be construed, interpreted,
enforced and governed by and in accordance with such law.
5.06 INTENTIONALLY DELETED.
5.07 Mortgagor as Lessor. Mortgagor shall faithfully perform the covenants of
Mortgagor as lessor under any present and future leases, affecting all or any portion of the
Mortgaged Property, and neither do nor neglect to do, nor permit to be done, anything which
may cause the termination of said leases, or any of them, or which may diminish or impair their
value, or the rents provided for therein, or the interest of Mortgagor or Mortgagee therein or
thereunder.
5.08 INTENTIONALLY DELETED.
5.09 Waiver of Homestead Exemption; Time of Essence. Each individual Mortgagor,
for himself and family, hereby waives and renounces all homestead exemption rights provided
for by the Constitution and Laws of the United States and of the State of Florida in and to the
Mortgaged Property as against the collection of the secured indebtedness, or any part thereof;
and Mortgagor agrees that where, by the terms of the conveyance or the Agreement secured
hereby, a day is named or a time fixed for the payment of any sum of money or the performance
of any agreement, the time stated enters into the consideration and is of the essence of the whole
contract.
5.10 Prior Liens. Except for any mortgage or easement described in Sections 3.01 and
3.02 of this Mortgage, Mortgagor shall keep the Mortgaged Property free from all other prior
liens and, upon demand of Mortgagee, pay and procure release of any such other lien which in
any way may impair the security of this Mortgage.
5.11 Mortgagor's Duty to Defend. Mortgagor will defend, at its own cost and expense,
and indemnify and hold Mortgagee harmless from, any action, proceeding or claim affecting the
Mortgaged Property, the Agreement or any other loan document. Costs and expenses will
include all reasonable attorney's fees.
If Mortgagor neglects or refuses to act pursuant to this paragraph, Mortgagee, at its
option (whether electing to declare the entire secured indebtedness due and collectible or not, or
to pursue other remedies for an event of default), may pay for all reasonable attorney's fees,
costs and expenses incurred in any such action. All such payments, bearing interest thereon from
the time of default as determined by prime rate, plus 100 basis points, as quoted in the Wall
Street Journal, as of the effective day of any default and shall accrue at that rate, from time to
time, as of the date of default, shall be deemed a part of the secured indebtedness and shall be
immediately due and payable by Mortgagor to Mortgagee.
5.12 Compliance with Law. The Mortgagor warrants and represents the Mortgagor has
complied, and shall hereafter comply, with all valid laws, rules, ordinances and regulations of the
federal, state and local government, and all agencies and subdivisions thereof which laws rules,
ordinances and regulations apply or relate to the Mortgaged Property, the development,
construction and improvements existing or contemplated thereon or as a part thereof, and the sale
13
or other disposition of the Mortgaged Property, or parts thereof, or the improvements now or
hereafter located thereon or a part thereof, including, but not limited to, all such laws, rules,
ordinances, and regulations regarding land use, zoning, building, subdivision, environment,
OSHA, pollution and sales practices.
5.13 Construction. This Mortgage and all related loan documents, including but not
limited to the Agreement, shall not be construed more strongly against any party regardless of
who was more responsible for its preparation.
5.14 Addresses for Notices.
A. Any notice, report, demand or other instrument authorized or required to be given
or furnished under this Mortgage to Mortgagor or Mortgagee shall be deemed given or furnished
when addressed to the party intended to receive the same, at the address of such party on the first
page hereof, and delivered at such address by personal delivery, national overnight courier
company, or when mailed by first class U.S. Mail, postage prepaid and deposited into the U.S.
Mail, being deemed the delivery of notice, or when given by facsimile transmission or via e-
mail, as follows:
To Mortgagor: MAINSTREET CLEARWATER DEVELOPMENT, LLC.
400 Cleveland Street, Suite 200
Clearwater, Florida 33755
Fax: (727)
To Mortgagee: Attn: City Attorney
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
FAX # (727) 562-4021
B. Either party may change the address to which any such notice, report, demand or
other instrument is to be delivered or mailed, by furnishing written notice of such change to the
other party, but no such notice of change shall be effective unless and until received by such
other party.
5.15 Termination of Agreement. This Performance Mortgage shall not be affected by
termination of the Agreement, to the extent that the CRA (Mortgagee) has expended funds or is
obligated to expend funds for which Mortgagor is liable to reimburse Mortgagee pursuant to the
Agreement and all obligations under this Performance Mortgage shall survive until Mortgagee
has satisfied its liabilities and fulfilled its obligations to Mortgagee under the Agreement.
5.16 Mortgagee's Satisfaction of Mortgage. Notwithstanding anything to the contrary
elsewhere contained in this Mortgage, if during the term of this Mortgage, Mortgagor seeks to
sell the Mortgaged Property or re-finance the mortgage indebtedness described in Section 3.01
above and the Purchaser of the Mortgaged Property or the lender refinancing said indebtedness
requires that this Mortgage be satisfied as a condition to its closing of said sale or re-financing,
then in such event, Mortgagee shall furnish a written satisfaction of this Mortgage in recordable
14
form upon (a) Mortgagor's presentation of reasonable evidence that one of the foregoing events
has occurred and (b) Mortgagor's payment to Mortgagee of an amount equal to the sum which
would be due Mortgagee if Mortgagor had failed to comply with the provisions of Section 6.02
of the Agreement as of the date of the closing of any such sale or re-financing.
NO DOCUMENTARY STAMP TAXES OR INTANGIBLE PERSONAL PROPERTY
TAXES ARE DUE ON THIS MORTGAGE BECAUSE IT SECURES THE
PERFORMANCE OF AN OBLIGATION, NOT THE PAYMENT OF MONEY.
IN WITNESS WHEREOF, the Mortgagor has made, executed, sealed and delivered this
Mortgage, the day and year first above written.
Signed, sealed and delivered
in the presence of:
MAINSTREET CLEARWATER
DEVELOPMENT, LLC,
a Florida limited liability company
14'fintlNam C A ,---c- n --
Print Name
i -e
STATE OF C (-)N O.
COUNTY OF LQj
2S
By:
Ke . Burke ' managing member
I HEREBY CERTIFY, that on this day personally appeared before me, an officer duly
authorized to administer oaths and take acknowledgments, by Kevin Burke, as managing
member of MAINSTREET CLEARWATER DEVELOPMENT, LLC., a Florida limited
company, known to be the individual described in, or who produced ;veC''5 4COA'` "- as
identification, and who executed the foregoing instrument, and acknowledged before me that he
executed the same as his free act and deed for the purposes therein expressed.
WITNESS my hand and official seal at said County and State,
this 2C day of JLI?V , 2010.
Notary Public
+ euewurN Print Name ° cti,ktkA-,
QA ?rAv
cpw. ear
"°
PUo My Commission Expires: S
Lft
15
EXHIBIT "A"
Lots S and 6 of EARLL AND TATE'S SUBDIVISION, according to the map or plat thereof as
recorded in Plat Book 1, page 20, of the Public Records of Hillsborough County, Florida, of
which Pinellas County was formerly a part.
427757210
16