AMENDED AND RESTATED DEVELOPMENT AGREEMENTAMENDED AND RESTATED DEVELOPMENT AGREEMENT
This AMENDED AND RESTATED DEVELOPMENT AGREEMENT made as of September
20th, 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 Ill, Chapter 163, Florida Statutes (the "Agency") and CLEARWATER ESPACIO DEVELOPMENT,
LLC, a Florida limited liability company ("Developer").
Recitals
A. On or about January 24, 2007, Agency and Clearwater Centre, LLC, a Florida limited
liability company ("Centre") entered into that certain Development Agreement (together with the
Assignment (defined below), the "Original Development A reement') whereby Agency agreed to
reimburse Centre for the cost of certain improvements associated with that certain tract of land located in
Pinellas County, Florida, located at the northeast corner of the intersection of Cleveland Street and MLK
Jr. Avenue, Clearwater, Florida, and legally described as set forth in Exhibit A in the community
redevelopment area of Clearwater Florida (the "Pro a ").
B. Subsequent to the execution of the Original Development Agreement, Centre formed
Developer to develop the Property. The membership interests in Developer were owned fifty percent
(50%) by Centre and fifty percent (50%) by Espacio USA, Inc., a Delaware corporation ("Es if).
C. Pursuant to that certain Assignment of Development Agreement (the "Assignmen
dated June 22nd, 2007, with the consent of Agency, Centre assigned its right, title and interest in and to
the Original Development Agreement to Developer.
D. Developer is developing a mixed use project on the Property which would include
residential, retail office facilities and associated infrastructure facilities (the "Strand Project").
E. On or about August 23, 2010, Espacio acquired one hundred percent (100%) of the
membership interests in Developer (the "Transfer").
F. Developer and Agency desire to modify the Original Development Agreement as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
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 Amended and Restated 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) "Allowable Retail Uses" means a neighborhood commercial retail establishment, not
otherwise prohibited by zoning, that sells or leases goods directly to the consumer. The Town Lake
Residential District envisions a residential district with neighborhood commercial uses. New commercial
uses should be of the type and scale to serve the new residential development. More intense commercial
and office development may be permitted, however, along major streets such as Myrtle Avenue,
Cleveland Street, Martin Luther King, Jr. Avenue and Court and Chestnut Streets.
(7) "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.
(8) "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.
(9) "Building Permit" means, for all or any part of the Strand 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.
(10) "City" means the City of Clearwater, Florida, a Florida municipal corporation, and any
successors or assigns thereto.
(11) "City Council" means the governing body of the City, by whatever name known or
however constituted from time to time.
(12) "Commencement Date" means the date of issuance of the first Building Permit for any
part of the Strand Project.
(13) "Completion Date" means the date on which construction of the Project is substantially
complete as evidenced by a Completion Certificate.
(14) "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 Strand Project, or any portion thereof, on the Project Site, including, financing
costs, "soft costs," overhead, and the design, construction and equipping of the Strand Project.
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(15) "Construction Lender" means any person or persons providing the Construction
Financing or any portion thereof.
(16) "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.
(17) "Developer" means Clearwater Espacio Development, LLC, a Florida limited liability
company, and any successors and assigns thereof, including any entity, partnership, joint venture, or other
person in which Clearwater Espacio Development, LLC, is a general partner or principal, but not
including any entity, partnership, joint venture, or other person in which Clearwater Espacio
Development, LLC is a general partner or principal which is not undertaking or participating in any
development of the Strand Project, or any part thereof.
(18) "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.
(19) "Exhibits" means those agreements, diagrams, drawings, specifications, instruments,
forms of instruments, and other documents attached hereto and designated as exhibits to, and incorporated
in and made a part of, this Agreement.
(20) "Expiration Date" means the date on which this Agreement expires, as evidenced by the
Agreement Expiration Certificate being recorded in the public records of Pinellas County, Florida, as
provided in Section 11.19 hereof.
(21) "Impact Fees" means those fees and charges levied and imposed by the City, Pinellas
County and any other governmental entity on projects located 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)
(22) "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.
(23) "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.
(24) "Project" means the Strand Project. The Project is a mixed-use development with a
maximum of 89 residential condominium units, but not less than 88 residential condominium units as
currently approved by the City of Clearwater; approximately 214 private parking spaces; and not more
than 21,498 square feet of non-residential area comprised of approximately 15,498 square feet of ground
level retail space and approximately 6,000 square feet of office space and Sidewalk Improvements. The
Community Development Board (CDB) issued flexible Development Approval on July 18, 2006.
(25) "Project Plans and Specifications" means the plans and specifications pertaining to the
construction, installation and equipping of the Strand Project, including the schedule for completing the
Project, consisting of the plans and specifications.
(26) "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.
(27) "Proposal" means the proposal for redevelopment of the Site, per the Site Plan submitted
by Developer and approved by the CDB on July 18, 2006.
(28) "Sidewalk Improvements" means construction of public sidewalks, including but not
limited to sidewalks, site furnishings, landscaping, public art and sidewalk material finishes to be located
on the Site and adjacent public right-of-way.
(29) "Site" means that certain property with a street address of 1100 Cleveland Street, located
in Clearwater, Florida, as more particularly described on Exhibit A attached hereto, on which the Strand
Project is to be located.
(30) "Site Plan" means the depiction and description of the Project on the Site, the initial
version of which is attached hereto as Exhibit B.
(31) "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.
(32) "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.
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. Recitals. The Recitals to this Agreement are true and correct and constitute a material
part of this Agreement. This Agreement amends, restates, renews and supersedes the Original
Development Agreement.
2.02 Intent; Purpose of Agreement.
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(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.
(b) (1) The Site is to be redeveloped according to Project Plans and Specifications for
use as not more than 89 residential condominium units, but not less than 88 residential condominium
units as currently approved by the City of Clearwater, approximately 214 private parking spaces,
approximately 15,498 square foot of ground level Allowable Retail Uses, approximately 6000 sq. ft, of
office and Sidewalk Improvements.
(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.
(d) By its execution of this Agreement, Agency hereby consents to the Transfer and
acknowledges that Espacio is the sole member of Developer.
2.03. 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.
2.04. 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.
2.05. 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 Alberto Munoz.
(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. Zoning. 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, as well as the Flexible Development Approval issued by the Community
Development Board (CDB) on July 18, 2006, 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 Town Lake Residential District and the
provisions of the Plan pertaining to the Site were consistent with the Strand Project as contemplated by
the Proposal and this Agreement.
3.03. Development of Regional Impact. The parties hereto acknowledge and agree that the
Project as contemplated by the Proposal and this Agreement was not and is not as of the Effective Date a
"development of regional impact" within the meaning of Section 380.06, Florida Statutes.
3.04. Permits.
(a) The Developer shall, to the extent not previously obtained and currently in effect, prepare
and submit to the appropriate governmental authorities, including the City, the applications for each and
every Building Permit and any and all necessary Permits for the Project, and shall bear all costs of
preparing such applications, 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.
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(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 established
procedures and requirements of the Agency or the City with respect to review and permitting of a project
of a similar or comparable nature, size and scope. In no event shall the Agency or the City, due to any
provision of this Agreement, be obligated to take any action concerning regulatory approvals except
through its established processes and in accordance with applicable provisions of law.
3.05. Concurrenc .
(a) The parties hereto recognize and acknowledge that Florida law (specifically, Part Il,
Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, collectively the "Growth
Management Act") impose restrictions on development if adequate public improvements are not available
concurrently with that development to absorb and handle the demand on public services caused by that
development. The City has created and implemented a system for monitoring the effects of development
on public services within the City. The Developer recognizes and acknowledges it must satisfy the
concurrency requirements of Florida law as applied to the Project. Specifically, the Developer covenants
and agrees to comply with the City's land development code, including providing to the City any and all
data and analysis that shows the Project will be consistent with the goals, objectives and policies of the
comprehensive plan for the City, adopted by the City and in effect on the Effective Date, and the
Developer further covenants and agrees to comply with concurrency certification provisions of the City's
land development code.
(b) The Agency represents and warrants and the Developer acknowledges that as of the
Effective Date the Project as contemplated by this Agreement does not require any reservation of capacity
or to seek any approvals as a result of the concurrency requirements described in subsection (a). If legally
obligated in the future to comply with such requirements, the Developer agrees to seek issuance of a
concurrency compliance certificate or other similar document by whatever name known and a reservation
of services capacity under the City's concurrency management system, and does further agree to maintain
such certificate and reservation. The Developer covenants and agrees with the Agency not to undertake
any action, or fail to take any action, which would cause the City to revoke or invalidate the concurrency
compliance certificate or the reservation of services capacity.
3.06. Not a Development Order or Permit. The parties do hereby acknowledge, agree and
represent that this Agreement is not intended to be and should not be construed or deemed to be a
"development order" or "development permit" within the meaning of those terms in Section 163.3164,
Florida Statutes.
3.07. Permitted Uses.
(a) The Project shall consist of not more than 89 residential condominium dwelling units, but
not less than 88 residential condominium units as currently approved by the City of Clearwater, and
associated amenities.
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(b) The Project shall have approximately 214 private parking spaces.
(c) The project shall contain not more than 21,498 square feet of non-residential area that
includes approximately 15,498 square feet of Allowable Retail Uses on the first floor and approximately
6000 sq. ft. of office.
(d) The Developer shall actively market and use his best efforts to obtain tenants for the first
floor retail space as one or more of the Allowable Retail Uses described herein.
(e) Provided however, the following uses are prohibited:
1. All uses prohibited by the Clearwater Downtown Redevelopment Plan, dated
February 3, 2004.
2. A liquor store, however excluding a wine store.
A lounge and/or nightclub, however excluding a wine bar.
(f) Notwithstanding the uses prohibited in (e)2 and 3 above, an otherwise properly licensed
and permitted, allowable retail use as defined in 1.01.(6) hereinabove, including, but not limited to a
restaurant, deli, grocery store, convenience store, etc., shall not be prohibited from package sales and/or
sale by the drink for consumption on premises of beer, wine and liquor.
(g) Establishments offering package sales and/or sale by the drink for consumption on
premises of beer, wine and liquor, shall be limited as follows:
1. The hours of operation for such sales shall be limited to 11 P.M. Sundays through
Thursdays and 12 A.M. Fridays and Saturdays; and
2. Unless otherwise prohibited by law, the hours of operation may be extended until
1 A.M. Sundays through Thursdays and 2 A.M. Fridays and Saturdays on those days and only those days
on which a public event, that is well publicized within local newspapers, that takes place within the
boundaries of the downtown expanded periphery, that invites the general public, and which operates to at
least 10 P.M. on the day extended hours are made available.
ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS.
4.01. Site Plan.
(a) The Developer has prepared and received approval from the CDB of a Site Plan, a copy
of which is attached hereto as Exhibit B, that 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 in
accordance with the Land Development Code and Agency for approval which Approval shall not be
unreasonably withheld or delayed.
(b) The Site Plan approved by the CDB, is hereby accepted by the Agency and shall be the
basis for and incorporated into the Project Plans and Specifications.
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) The Developer shall construct the Project on the Site substantially in accordance with the
Project Plans and Specifications therefor. Developer and the Agency acknowledge that construction on
the Project has commenced.
(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. The
Project shall be completed by no later than October 1, 2012.
(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 shell of any structure (not including tenant improvements for the retail
space) has been issued by the City; or for the residential and garage areas, the issuance of a Certificate of
Occupancy for each residential condominium unit and the garage.
(d) 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, 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. 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. Com letion Certificate.
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(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.
(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.
(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 Privi 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 Develo is Performance. In consideration of the advancements,
reimbursements and payments made by the Agency pursuant to Article 6 hereof, Developer shall provide
a Letter of Credit in the amount of four hundred twenty five thousand dollars ($425,000.00) to secure a
portion of the funds so paid, in substantially the form as set forth and attached hereto as Exhibit C (the
"Letter of Credit"). Prior to the Effective Date of this Agreement, the Letter of Credit shall be in place,
securing the Agency's payments. This obligation and the Letter of Credit provided hereto shall survive
termination as provided in paragraph 9.05 and 9.06. The parties acknowledge and agree that they shall
cause the Letter of Credit to be terminated upon either (a) the issuance of the Completion Certificate, or
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(b) the issuance of joint notice by Developer and Agency to the applicable financial institution requesting
the termination of the Letter of Credit.
ARTICLE 6. PAYMENTS BY AGENCY.
6.01. Payment of Building Permit and Impact Fees. The Agency shall pay the Projects'
Building Permit and Impact Fees in a total amount not to exceed $425,000. Such payment shall be made
as they become due and payable as provided in the Clearwater Code of Ordinances and the Clearwater
Community Development Code.
6.02 Pa ment of Utility Relocation Costs. The Agency shall fund and pay the costs to
relocate the existing water and sewer utilities on the property of the Project into the NE Cleveland Street
right of way per the solution provided by Developer's civil engineer, Keith Zayac and Associates, Inc., as
provided in Exhibit G. in a total amount of $260,000.
6.03 Payment of Streetsca e / Landsca a Improvements. Upon completion of the Sidewalk
Improvements), the Agency shall pay Developer a total amount not to exceed $500,000 for Streetscape /
Landscape Improvements constructed by the Developer as part of the Project. Developer shall provide
the Agency with documentation verifying expenditures for the Streetscape / Landscape Improvements.
Provided further, the total amount of reimbursement payments said improvements shall not exceed the
total expenditures made by the Developer for Streetscape / Landscape Improvements for the Project.
6.04 Nothwithstanding paragraphs 6.01 through 6.03 above, the aggregate amount payable by
the Agency shall not exceed $1,040,000.
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 Developer's articles of
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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 in
1100 Cleveland Street, Clearwater, Florida 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.
(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
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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 and complete the Project and shall promptly notify the Agency of any event, condition,
occurrence, or change in its financial condition which materially adversely affects, or with the passage of
time is likely to adversely affect, the Developer's financial capability to successfully and completely
develop, construct and complete the Project as contemplated hereby.
(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.
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 1.63, Florida Statutes
(known as the Community Redevelopment Act of 1969), has all requisite corporate power and authority
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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 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.
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(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.
(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
15
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.
(d) 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 9.0 1, 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.
(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 Agency shall within said thirty (30) day period or such longer period promptly,
diligently and in good faith proceed to cure such event of default after receipt of the notice from the
Developer and shall succeed in curing such event of default within said period of time, provided,
16
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 Aizencv.
9.04. Non-Action on Failure to Observe Provisions of this A reement. The failure of the
Agency or the Developer to promptly or continually insist upon strict performance of any term, covenant,
condition or provision of this Agreement, or any Exhibit hereto, or any other agreement, instrument or
document of whatever form or nature contemplated hereby shall not be deemed a waiver of any right or
remedy that the Agency or the Developer may have, and shall not be deemed a waiver of a subsequent
default or nonperformance of such term, covenant, condition or provision.
9.05. Termination.
(a) The Developer and the Agency acknowledge and agree that as of the Effective Date
certain matters mutually agreed by the parties hereto are essential to the successful development of the
Project have not been satisfied or are subject to certain conditions, legal requirements or approvals
beyond the control of any of the parties hereto or which cannot be definitely resolved under this
Agreement. In recognition of these events or conditions, the parties hereto mutually agree that, provided
the appropriate or responsible party therefor diligently and in good faith seeks to the fullest extent of its
capabilities to cause such event or condition to occur or be satisfied, the failure of the events or conditions
listed in subsection (b) below to occur or be satisfied shall not constitute an event of default by any party
under this Article 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 therefrom, or such part of the Site is taken by the power of eminent domain so as to render the
Project commercially unfeasible or unusable for its intended uses as contemplated by this Agreement;
17
(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).
(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.
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(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 Dem.
(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 _De " 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 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. Assignments.
(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
19
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
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:
To the Developer:
Clearwater Espacio Development, LLC
1100 Cleveland Street
Clearwater, Florida 33755
Attention: Alberto Munoz
FAX # (305) 704-7907
with copies to:
Holland & Knight LLP
701 Brickell Avenue, Suite 3000
Miami, FL 33131
Attention: Alberto M. Hernandez, Esq
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
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FAX # (305) 789-7799 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.
(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.
21
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 Agreement; Amendments
(a) This Agreement, and all the terms and provisions contained herein, including without
limitation the Exhibits hereto, constitute the full and complete agreement between the parties hereto to the
date hereof, and supersedes and controls over any and all prior agreements, understandings,
representations, correspondence and statements whether written or oral, including the RFP and the
Proposal.
(b) Any provisions of this Agreement shall be read and applied in para materia with all other
provisions hereof.
(c) This Agreement cannot be changed or revised except by written amendment signed by all
parties hereto.
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).
22
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 Obligation. In no event shall any obligation of the Agency under this
Agreement be or constitute a general obligation or indebtedness of the City or the Agency, a pledge of the
ad valorem taxing power of the City or the Agency or a general obligation or indebtedness of the City or
the Agency within the meaning of the Constitution of the State of Florida or any other applicable laws,
but shall be payable solely from legally available revenues and funds. Neither the Developer nor any
other party under or beneficiary of this Agreement shall ever have the right to compel the exercise of the
ad valorem taxing power of the City, the Agency or any other governmental entity or taxation in any form
on any real or personal property to pay the City's or the Agency's obligations or undertakings hereunder.
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.
23
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals
affixed as of this 20?" day of September, 2010.
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
By
Approved as to form:
Pamela K. M
City Attorney
Frank V. Hibbard
Chairperson
``SOP MENT ??,Attest:
pgORATE
Rosemarie Call
S City Clerk
? PLOgtDP,,p?
?? IG ?LDF
CLEARWATER ESPACIO DEVELO
a Florida limited liability cgwpry?
Witnesses:
By:
STATE OF FLORIDA
COUNTY OF
its
, LLC,
The foregoing instrument was acknowledged before me this _2?1_ day '5e-o
2010, by AI6ex4--3 Tip, as P. , of Clearwater Espacio Development, LLC, a Florida
limited liability company, on behalf of such limited liability compan
or have produced a valid driver's license as identification. a MADE
N"yPow-I tdP4"
my Conan. son my Ze, 2019
(SEAL) Commb WN • oD $me
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rrmteai i ypea ivame:
Notary Public-State of Florida
Commission Number: # DC)?n3r-aD8
24
THIS PAGE LEFT INTENTIONALLY BLANK
25
Lots 9 thru 25 imsive and tint part of Lat d as --
egm at?nmst
Southerly comm of said Lot 50 fac the Foist of Beginmg thence nn North, along the West lime
.of said Lot 50, to the Northmst corer ofsaid Lot 9; dh East a1 mg the F.adrly won of
the North line of said Lot 9 to the Nagy lime of acid Lot 24; d um Southwesterly, Wong the
N, Army line of said Lot 24, to the Paint of Beginning, All in Bloch "T, BASSEDENA
SUBDIVISION, as ro , I Win Plat Book 6. Page 24 public records of Pinellas County, Fkdda,
LESS dw fol owing described tract: Begin at the Northymst cower of acid Lot 11 for the Pout
of Beginning d mm sm South 42°19'40' FA#,14.91 t+e4 thence South Wl0'W Feet, 248.03
feet to the most Fuedy comer of said Lot 25, said Darner bang on the N?iy right-of-
LIST OF EXHIBITS
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT .F
EXHIBIT G
#9652432_v5
-- Legal Description
-- Site Plan
-- Letter of Credit
-- Memorandum of Agreement for Development
-- Agreement Expiration Certificate
-- Agreement Termination Certificate
-- Utility Relocation Plan
26
Lots l tbru 14 inclusive, Lot 15, loathe East 23.0 fad thrrcot all in Block "A", BASSEDENA
SUBDIVISION r recorded in Plat Book 6, Page 26, of the public records of Pinellas County,
Florida. LESS rho West 10.0 fat of sad Lot 1, deeded to the City of Clearwater for right-of
way Pte.
Lou 1, 2,10 and that part of Lots 3 and 4 which He Wet of a Southerly cdonsi m of the
WeW* line of the Easterly 23.0 fed of Lot 15, Block "A", (of BASSEDENA SUBDIVISION
as recorded in Plat Book 6, Pap 26, public rec n - I - of Pinellas County, FloridaN LESS the Fast
23.0 feet of said to 4 thereo& all.in H. A. KHAORE'S SUMMON as recorded in Plat
Book 3, Page 58, public records of Pinellas County, Florida.
Vacated pardon ofNE Cleveland Street (66.0 foot width) described as follows: That portion
lying betw+eva Blodm "A" and "B" of BASSEDENA SUBDIVISION as rocarded in Plat Book 6,
Page 26, public records of Pi wUu County, Florida, being mare particularly der scribed as
follows: From the most Farly corner of Lot 25, of said Block "B; &ASSWEKA
SUBDIVISION, said corner being an the NordreeMerly tight-of-way line ofNE Cleveland
Stro:t, run thence South 58°27'00" West, along said NoW rift-of-way tine, 50.0 £xt,
thence eonrtism along said r &-of-way Barg South 51°00'30" Wad, 41.58 fagot to the Point of
Begiming; duet ran South 84°10'09" Bast, 99.84 fiord to a poke an rho So eriy right *f-
way lure of said NE Cleveland Skew, thence rent South SV 27'00" West, along said
3otathaeasterly right-of way line, 33.81 feet; thence coating along said Solt' right-d-
way lino, Saudi 51°'00'30" West, 310.43 feet to a port, said point being an the Souixr
ercteaaaioan of a live lying 10.0 feet East of the Bat dgbtrof-way line of Cmcawvod Aveaue as
sham a4acent to Block `B" of said BASSEDENA SUBDIVISION; thamce run North
00112100" West, along a line 10.0 feet Fast of a puatlel to the Southerly adensim of the Fast
right-of-way line of Cneenwood Avenue as shown on acid Blade "B ; 84.68 &d to the
Nay fight-of-way lino of NE Aovdend Street; t1>?x rum Nardi 51800'30" Fast, along
acid right-of-way line, 220.09 fiW to the Paint of B .
FAZIO]
Lots 9 thru 25 inchs&e and that pert of Lot 50, dow nI d as follows: Begin at rho most
Soutba9y coa m of said Lot 50 for the Point ofBeginning; tboux run North, along the West line
of said Lot 50, to the Northend corner of said Lot 9; thence East along the Emle iy oftmoo of
the North lime of said Lot 9 to rho Noodiedy line of said Lot 24; thence Southaaeatcrly, 'along the
Northerly line of said Lot 24, to the Poise of Ba inning, all in Block 'W, BASSEDENA
SUBDIVISION, as reconfed in Plat Book 6, Page 26, public rata at 6 of Pinellas County, Florida,
LESS the following d=mlxd t=* Begin at the Northwest comer of said Lot 11 for the Point
of Beginning; thence run South 4201940" Eno, 14.91 fi ck thence South 84°10'09" East, 248.03
feet to the most Early comer of said Lot 25, said corner being on the Narthvvatcriy rigltt?f0
way lips of NE Ckvelmd Stred; d mm South sr 2ro0" west, along said North !ly rigli-
of-way line, 50.0 fm:4 thence contmw along said t&-of-way lim South 51 °00'30" Went,
41.581nct; theam North 64°10'09" Woo, IS2.60 fleet; thence South 4r48'56" Went, 26.76 fiat
to a paint 10.0 fed Fast of the Fast right-of-way line of Cmmnwood Avenue; thmce South
00°12'00" East, along a lime of 10.0 feet East of the parallel to the East line of Qreeawood
Avemm,136.01 feet to the Northwestaly right-of-way lme of NB Clabvclmd SUeet; thence South
51 °00'30" West, along the Nardn+moerly right-d-%W of NE CIwdmd SUvd, 12.$3 fed to the
Bast right-of-way line of (39 P F -od Avenue. 235.10 fed to the Point of Big. (Far right-
of-way purposes for rew"O yka t of NE Ckveland Stred and for widening of Gmzwood
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t° to tC V to t t
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BANCO ESPAOOL DE CRtDITO, S.A.
Date:
Beneficiary:
September 23, 2010
Community Redevelopment Agency of the City of
Clearwater, FL
Letter of Credit No.
By order of
liability corn
Letter of Ci
aggregate L
00/100), efi
counters in'
Funds here
drawn on B
Letter of C
Statement,
follows:
"The
'ANDBY LETTER OF CREDIT
LCO1516/S
client, Clearwater Espacio Development, LLC, a Florida limited
y (the "Applicant'), we hereby open our irrevocable Standby
No.LC01516/S, in your favor for an amount not to exceed in
$425,000.00 (Four Hundred Twenty Five Thousand Dollars and
re immediately and expiring on September 24, 2012 at our
Fifth Ave. 7 Floor, New York, N.Y. 10019. U.S.A.
in er are available to you against presentation of your Sight Draft(s),
an Espanol de Credito, New York Agency, mentioning thereon our
-ed t Number LC01516/S, accompanied by your written and dated
du signed by an authorized officer of your company, stating as
certifies that Cl
obligations un er
dated Septem r
Developer and the
Florida (the " e
breach of its lig
condition(s).
therefore ent'
LC01516/S"
signed, authorized representative of the beneficiary hereby
nNater Espacio Development, LLC ("Developer') is in default of its
that certain Amended and Restated Development Agreement
21, 2010 (herein called the "Contract") by and between
Community Redevelopment Agency of the City of Clearwater,
nDeveloper has failed to deliver or committed a material
ations under the Contract and has failed to correct such default
Agency has complied with all contractual obligations and is
to draw $425,000.00 under standby letter of credit number
EXHIBIT
Z
a
m
?est
BANCO ESPANOL DE CRtDITO, S.A.
LC015161S
2 of 2
We hereby agr %me to honor each Draft drawn under this Standby Letter of Credit
provided docu ents submitted are in full compliance with the terms and
conditions of is Standby Letter of Credit if presented, as specified, at our
counters on or efore the expiration date.
Any correspon ence regarding this Standby Letter of Credit must be addressed
to Banco Espa of de Credito, 730 Fifth Ave., 7t' Floor, New York 10019, to the
attention of C dit Administration Department, mentioning our reference number
LC01516/S
Except as far s otherwise expressly stated herein, this Standby Letter of Credit
is subject to th International Standby Practices CISP98"), International Chamber
of Commerce, ublication No. 590, and as to matters not governed by the ISP98,
shall be gove ed by and construed in accordance with the laws of the State of
New York and pplicable U.S. Federal Law.
-war- - - -
uan Galan, S VP Esteban Femande , SVP
EXHIBIT
C'
m
KEN BURKE, CLERK OF COURT
PINELLAs COUNTY FLORIDA
INST# 2010288750 10/12/2010 at 04:18 PISA
OFF REc BK: 17057 PG: 322-323
DocType:AGM RECORDING: $18.50
EXHIBIT D
Memorandum of Development Agreement -._...,..
(The Strand]
This Memorandum of Development Agreement ("Memorandum") is made this
day of 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 (the "Agency"), whose address is 112 S. Osceola Avenue,
Clearwater, FL 33756, and CLEARWATER ESPACIO DEVELOPMENT, L.L.C., a
Florida limited liability company ("Developer"), whose address is 1100 Cleveland St.,
Clearwater, FL 33755.
This Certificate pertains to an Amended and Restated Development Agreement
(The Strand Development) by and between the Agency and the Developer, dated as of
209H (the "Development Agreement'), which provides, among
other things, for the construction of the Clearwater Centre Project as same is defined
and provided 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, tle parties hereto have set their hands and their
respective seals affixed as of the V"' day of Qdib?Y 2010.
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF
CLEARWATER, FLORIDA
Approved a to form:
Pamela K. Akin
City Attorney
Attest:
r
By:
Frank V. Hibbard
Chairperson
Rosemarie Call
City Clerk
Q
CLEARWATER ESPACIO
Witnesses:
STATE OF FLORIDA
COUNTY OF PINELLAS
L.L.C.,
a Florida limited liability company
BY:
ATTEST:
By:
DEVELOPMENT,
Secretary
(SEAL)
The foregoing instrument was acknowledged before me this C) )^ day of
Oc?cpLnr_ , 2010, by of Clearwater Espacio Development, L.L.C., a Florida
limited liability company, on behalf of such limited liability company. They are personally
known to me or have produced a valid driver's license as identification.
(SEAL)
MMUMM
Nowt' PoW - fto a ane.
•= MV C*W. E*=Mq?26.201
Commission DD
"''• Bonaed Through NslionM IWn
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
EXHIBIT E
Agreement Expiration Certificate
[The Strand]
This Agreement Expiration Certificate ("Certificate") is made this day of
, by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public
body corporate and politic of the State, of Florida (the "Agency"), whose address is 112
S. Osceola Avenue, Clearwater, FL 32521, and CLEARWATER ESPACIO
DEVELOPMENT, L.L.C., a Florida limited liability company ("Developer"), whose
address is 1100 Cleveland St., Ste. 101, Clearwater, FL 33755.
This Certificate pertains to an Amended and Restated Development Agreement
(The Strand Development) by and between the Agency and the Developer, dated as of
, 200 (the "Development Agreement"), which provides, among
other things, for the construction of the Strand Project as same is defined and provided
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 the Strand
site is no longer subject to any restriction, limitation, or encumbrance imposed by the
Development Agreement. This Certificate has been executed by the parties to the
Development Agreement as provided in Section 11.19 thereof and constitutes a
conclusive determination of satisfactory completion of all obligations under such
Development Agreement and that the Development Agreement has expired.
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 , 200_
[SIGNATURE PAGES FOLLOW]
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF
CLEARWATER, FLORIDA
By:
Frank V. Hibbard
Chairperson
Attest:
Rosemarie Call
City Clerk
Witnesses:
CLEARWATER ESPACIO DEVELOPMENT,
L.L.C., a Florida limited liability company
BY:
its
ATTEST:
By:
Secretary
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 20W, by of Clearwater Espacio
Development, L.L.C., a Florida limited liability company, on behalf of such limited liability
company. They are personally known to me or have produced a valid drivers license as
identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
EXHIBIT "F"
AGREEMENT TERMINATION CERTIFICATE
[The Strand]
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
CLEARWATER ESPACIO DEVELOPMENT, a Florida limited liability company (the
"Developer"), whose address is 1100 Cleveland St., Suite 101, Clearwater, FL 33755.
This Certificate pertains to an Amended and Restated Development Agreement
(The Strand Project), by and between the Agency and the Developer, dated as of
, 2010 (the "Development Agreement"), which provides, among
other things, for the sale of property within a project site as described in Exhibit "A" attached
hereto and made a part hereof for the development and construction of the Strand Project, as
same is defined in the Development Agreement.
The Development Agreement has terminated in accordance with its own terms as
provided in Section thereof as of and is no longer of any force
or effect except for those provisions which expressly survive termination. This Certificate has
been executed by the parties to the Development Agreement as provided in Section
thereof and constitutes a conclusive determination that the Development Agreement has been
terminated, the rights, duties and obligations of the parties hereto have been terminated and
released (subject to those surviving provisions) and Clearwater Centre 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
By:
Frank V. Hibbard
Chairperson
Attest:
Rosemarie Call
City Clerk
CLEARWATER ESPACIO DEVELOPMENT, L.L.C.,
a Florida limited liability company
Witnesses:
STATE OF FLORIDA
COUNTY OF PINELLAS
BY:
its Executive Member
ATTEST:
By:
Secretary
(SEAL)
The foregoing instrument was acknowledged before me this day of
, 20, by of Clearwater Espacio Development,
L.L.C., a Florida limited liability company, on behalf of such limited liability company. They are
personally known to me or have produced a valid driver's license as identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
DEVELOPMENT AGREEMENT
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