PUT AGREEMENT - SURF STYLE CONDOMINIUM - PARKING UNITPUT AGREEMENT
(Surf Style Condominium - Parking Unit)
THIS PUT AGREEMENT (Surf Style Condominium - Parking Unit) (the
"Agreement") is made and entered into as of this-day of October, 2010, by and
between Branch Banking and Trust Company, a North Carolina banking corporation
(the "Lender"), and THE CITY OF CLEARWATER, FLORIDA, a Florida municipal
corporation (the "City").
RECITALS:
A. The City and L.O.M., Inc., a Florida corporation (the "Developer") have
entered into that certain Agreement for Development of Property in the City of
Clearwater (Surf Style Condominium Project) dated February 18, 2010 and recorded in
Official Records Book 16836, Page 1817, of the Public Records of Pinellas County,
Florida, as amended by that certain First Amendment to Agreement for Development of
Property between the Developer and the City executed as of October 25, 2010
(collectively, the "Development Agreement"). The Development Agreement sets forth
the terms and conditions governing the development and construction of a 41,000+/-
square foot retail/commercial project, including a parking garage containing
approximately 344 parking spaces, of which 300 spaces will be open to the public
(collectively, the "Project"), on certain real property located on South Gulfview
Boulevard in the City of Clearwater, Florida, more particularly described in Exhibit A
attached hereto (the "Property").
B. The Development Agreement contemplates that the Property will be
submitted to the condominium form of ownership pursuant to Chapter 718 of the Florida
Statutes and condominium documents in substantially the form attached to the
Development Agreement as Exhibit D. The condominium will be known as "Surf Style
Condominium" and will contain three (3) units, two (2) "Retail Units" and one (1)
"Parking Unit", as defined and described in Section 2.3 of the Development Agreement.
C. Pursuant to Section 6.01 of the Development Agreement, the City agreed
to enter into a "put" agreement with Developer's lender providing construction financing
for the Project, pursuant to which such lender would have the option to require the City
to purchase the Parking Unit (defined below) under certain circumstances in the event it
acquired title to the Project following an event of default by Developer.
D. Contemporaneously herewith, Lender is making a loan to Developer to
finance the development and construction of the Project (as amended, restated,
assigned and renewed from time to time, the "Project Financing"). Lender has required
as a condition to the closing of the Project Financing, inter alia, that the City agree to
purchase the Parking Unit under certain circumstances in the event Lender acquires
title to the Project under the Project Financing documents (through foreclosure, deed in
lieu of foreclosure or otherwise) following an event of default by Developer under the
Project Financing.
MIA180, 691, 00604 10-27-10
E. This Agreement constitutes the (and satisfies the requirement for a) "put"
agreement between Lender and the City as contemplated by the Development
Agreement and the Project Financing documents, pursuant to which the City has
agreed to purchase the Parking Unit from Lender, subject to and upon the terms and
conditions hereinafter set forth. At a duly called public meeting on February 18, 2010,
the City Commission approved this Agreement and, through its approval of the
Development Agreement, authorized and directed the City to enter into this Agreement
simultaneously with the closing of the Project Financing. The appropriate shareholders,
directors and/or officers of Lender have approved this Agreement and have authorized
certain individuals to execute this Agreement on its behalf.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein set forth, the parties agree that the foregoing recitals are true and correct and
further agree as follows:
1. Put Option. If, following the Completion Date (as defined in the
Development Agreement) and prior to the date which is five (5) years following the
completion of the Project (the "Put Trigger Deadline"), an event of default by Developer
occurs under the Project Financing, Lender may require the City to purchase from
Lender the parking unit delineated on Exhibit A-1 attached hereto (the "Parking Unit") in
Surf Style Condominium, a Condominium, according to the Declaration of Condominium
recorded or to be recorded in the Public Records of Pinellas County, Florida (as
amended and supplemented from time to time, the "Declaration"), subject to the terms
and conditions of this Agreement, including without limitation the "Put Conditions"
(defined below). If Lender elects to exercise the "put", Lender shall exercise the
foregoing right to "put" the Parking Unit to the City by written notice (the "Put Trigger
Notice") to the City provided in accordance with paragraph 12 of this Agreement,
provided that the Put Trigger Notice is sent to the City prior to the Put Trigger Deadline.
The form of the Put Trigger Notice is attached hereto as Exhibit B. For purposes
hereof, the Project shall be deemed complete when conditional or final certificate(s) of
occupancy have been issued for the entire Project. The Parking Unit shall include an
undivided interest in the common elements appurtenant thereto as described in the
Declaration. Lender agrees not to provide a Put Trigger Notice to the City if the sole
event of default under the Project Financing is an event of default under any other loan
that is cross-collateralized or cross-defaulted with the Project Financing.
Notwithstanding any provision in this Agreement to the contrary, the City's
obligation to purchase the Parking Unit shall be subject to the following conditions
(collectively, the "Put Conditions"):
(a) Lender shall have acquired title to the Project through foreclosure, deed in
lieu of foreclosure or otherwise following an event of default by Developer
under the Project Financing documents;
(b) A certificate of occupancy (or its local equivalent) shall have been issued
for the Parking Unit;
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(c) The Project shall have been submitted to the condominium form of
ownership under Chapter 718 of the Florida Statutes and the Declaration
shall have been recorded in the Public Records of Pinellas County,
Florida;
(d) The Parking Unit shall be substantially in the condition required under
Exhibit J to the Development Agreement; and
(e) Lender shall provide written notice (the "Put Conditions Notice") to the City
certifying that the Put Conditions set forth in clauses (a) through (d) above
have been satisfied. The form of the Put Conditions Notice is attached
hereto as Exhibit 6-1 and shall be provided to the City in accordance with
paragraph 12 of this Agreement.
Lender and the City acknowledge and agree that this Agreement shall be null and void,
and of no force and effect, if either Lender has not provided the Put Trigger Notice to
the City by the Put Trigger Deadline or any of the Put Conditions are not met by the
date which is six (6) years following completion of the Project (the "Put Outside Date").
2. Purchase Price. The purchase price to be paid by the City to Lender for
the Parking Unit is Nine Million Three Hundred Thousand and No/100 Dollars
($9,300,000.00) (the "Purchase Price"), subject to adjustments and prorations as
provided herein. The proceeds of the Purchase Price will be applied by Lender to the
principal balance of the Project Financing, and any fees, costs, interest, penalties and/or
other charges or sums accrued thereon or due thereunder.
3. Terms of Payment. The Purchase Price shall be paid to Lender as
follows:
$ 9,300,000.00 approximately, in current funds at time of Closing, subject
to adjustments as provided in paragraph 2 and subject to
prorations and adjustments as hereinafter provided, to be
paid by cashier's check or by wire transfer of federal
funds.
$ 9,300 000.00 Total Purchase Price, subject to adjustment as provided
in paragraph 2.
4. Condition of Title. At the Closing, fee simple title to the Parking Unit shall
be conveyed to the City by special warranty deed, subject to the following matters: (a)
ad valorem real estate taxes for the year of Closing and subsequent years; (b) the
Development Agreement (if still in effect); (c) the Declaration and other condominium
documents; (d) the parking covenant contemplated by Section 2.03(3) of the
Development Agreement; (e) the covenants, restrictions, easements and other
exceptions specifically identified on Exhibit C attached hereto; (f) all laws, ordinances,
regulations, restrictions, prohibitions and other requirements imposed by governmental
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authority, including, but not limited to, all applicable building, zoning, land use and
environmental ordinances and regulations, and the instruments required by the
Development Order - Case No. FLD2009-09032 dated December 16, 2009 issued by
the City for the Project; (g) matters affecting the condition of title to the Property (or any
part thereof) created by or with the written consent of the City; and (h) any other
exceptions or matters recorded against the Property (or any part thereof) after the date
of this Agreement with respect to the development, construction, operation and
management of the Project (such as reservations, covenants, utility easements,
reciprocal easement agreements and any amendments or supplements thereto) and
which do not adversely affect the ownership or operation of the Parking Unit. Title to
the Parking Unit will be conveyed to the City at Closing free and clear of any mortgage,
lien or other encumbrance securing the Project Financing.
5. Closing. The closing (the "Closing") shall be held on the date which is
sixty (60) days following the City's receipt of the Put Conditions Notice, provided that the
City shall have no obligation to purchase the Parking Unit and close this transaction if
the Put Conditions Notice is not delivered or Put Conditions are not met by the Put
Outside Date as provided in paragraph 1 above. Closing shall take place at the offices
of attorneys for Lender, Ruden McClosky, located at 200 East Broward Boulevard, Suite
1500, Ft. Lauderdale, Florida 33301, or through an escrow with Lender's attorneys
whereby Lender, the City and their attorneys need not be physically present at Closing
and may deliver documents by courier or other means.
(a) At Closing, Lender shall execute and deliver to the City the following
Closing documents:
(i) a special warranty deed in the form attached hereto as Exhibit D,
subject only to the matters permitted under paragraph 4 of this
Agreement;
(ii) a customary and appropriate mechanic's lien affidavit, affidavit of
exclusive possession, "gap" affidavit, and non-foreign affidavit
and/or certificate pursuant to subparagraph 8(a)(iv) below; and
(iii) appropriate evidence of Lender's formation, existence and authority
to sell and convey the Parking Unit, including a partner or member
consent, corporate resolution and/or such other evidence of
authority and good standing (as appropriate) with respect to Lender
as may be reasonably required by the title insurance company
issuing title insurance covering the Parking Unit in favor of the City.
(b) At Closing, Lender and the City shall each execute counterpart closing
statements and such other documents as are reasonably necessary to
consummate the transaction contemplated by this Agreement.
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6. Prorations; Utilities.
(a) Prorations Genera. Real estate and personal property taxes, costs and
revenues and all other proratable items for the Parking Unit shall be
prorated as of the date of Closing, except that all current, pending and/or
levied condominium assessments or fees which were enacted, approved
or originated prior to Closing shall be paid by Lender. The City shall pay
assessments and fees levied after the Closing date. For purposes of this
provision, the term "levied" shall mean when the Board of the
Condominium Association or required Unit Owners or both have voted in
accordance with Florida law and the Declaration to approve an
assessment or fee. All capitalized terms used in this provision without
definition in this Agreement shall have the meanings given to them in the
Declaration.
(b) Taxes. In the event real estate and personal property taxes for the year of
Closing are unknown, the tax proration will be based upon the taxes for
the prior year, and at the request of either party, the taxes for the year of
Closing shall be reprorated and adjusted when the tax bill for such year is
received and the actual amount of taxes is known. If the Parking Unit is
included within the tax identification folio number for the balance of the
Property at the time of Closing (or at the time of reproration hereunder),
then, for purposes of allocating real estate taxes and assessments during
the calendar year of Closing to the Parking Unit, the parties agree that the
share of such real estate taxes and assessments attributable to the
Parking Unit shall be equal to the product of (a) the aggregate real estate
taxes and assessments determined to be due for the entire Property for
the year of Closing, multiplied by (b) the percentage interest of common
elements allocated to the Parking Unit under the Declaration.
(c) Utilities. With respect to electricity, water and sewer services and other
utilities (collectively, "Utilities"), the parties shall endeavor to have the
respective companies providing the Utilities read the meters for the
Utilities on or immediately prior to the Closing date. Lender shall be
responsible for all charges based on such final meter reading, and the City
shall be responsible for all charges relating to the Parking Unit thereafter.
If such readings are not obtainable, then, until such time as readings are
obtained, charges for all Utilities for which readings were not obtained
shall be prorated as. of the Closing date based upon the per diem rate
. obtained by using the last period and bills for such Utilities that are
available. Upon the taking of a subsequent actual reading, such
apportionment shall be adjusted and reprorated to reflect the actual per
diem rate for the billing period prior to Closing and Lender or the City, as
the case may be, shall promptly deliver to the other the amount
determined to be due with respect to the Parking Unit upon such
adjustment. To the extent Utilities are not separately metered to the
Parking Unit, a fair and equitable portion of such Utilities shall be allocated
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MIA180, 691,006x13 10-20-10
to the Parking Unit (for the initial proration and any subsequent
reproration) using the same the methodology for cost allocation of utilities
between condominium units provided in the Declaration.
The provisions of this paragraph shall survive the Closing.
7. Closing Costs. The Lender shall pay the cost of documentary stamps due
on the special warranty deed and recording costs for the deed. The Lender shall be
solely responsible for the cost of examining title and obtaining the title insurance policy
update or report on the Parking Unit, and the premiums and any other related fees and
costs for any owner's title insurance policies update and/or report. Each party shall pay
its own legal fees except as provided in subparagraph 15(c) below. All other closing
costs shall be apportioned in the manner customary for commercial for real estate
transactions in Pinellas County, Florida.
8. Representations and Warranties.
(a) Lender represents and warrants to the City and agrees with the City that
each of the following statements is currently true and accurate and shall
be true and accurate at the time of closing, and agrees that the City may
rely upon each of the following statements:
(i) Lender is a validly existing North Carolina banking corporation, and
has all requisite power and authority to carry on its business as now
conducted and to perform its obligations hereunder and under each
document or instrument contemplated by this Agreement to which it
is or will be a party.
(ii) This Agreement and, to the extent such documents presently exist
in a form accepted by the City and Lender, each document
contemplated or required by this Agreement to which Lender 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, Lender, and neither the execution and delivery thereof, nor
compliance with the terms and provisions thereof or hereof (i)
requires the approval and consent of any other party, except such
as have been duly obtained or as are specifically noted herein, (ii)
contravenes any existing law, judgment, governmental rule,
regulation or order applicable to or binding on Lender, or (iii)
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 Lender 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 Lender is a
party, specifically including any covenants of any bonds, notes, or
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MIA180, 691, 00603 10-20-10
other forms of indebtedness of Lender outstanding on the date of
this Agreement.
(iii) This Agreement and, to the extent such documents presently exist
in a form accepted by the City and Lender, each document
contemplated or required by this Agreement to which Lender is or
will be a party constitute, or when entered into will constitute, legal,
valid and binding obligations of Lender enforceable against Lender
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.
(iv) Lender is not a "foreign person" within the meaning of the United
States tax laws and to which reference is made in Internal Revenue
Code Section 1445(b)(2). At Closing, Lender shall deliver to the
City an affidavit to such effect, and also stating Lender's tax
identification number. Lender acknowledges and agrees that the
City shall be entitled to fully comply with Internal Revenue Code
Section 1445 and all related sections and regulations, as same may
be modified and amended from time to time, and Lender shall act in
accordance with all reasonable requirements of the City to effect
such full compliance by the City.
(b) The City represents and warrants to Lender and agrees with Lender that
each of the following statements is currently true and accurate and shall
be true and accurate at the time of closing, and agrees that Lender may
rely upon each of the following statements:
(i) The City is a validly existing body corporate and politic of the State
of Florida, and has all requisite power and authority to carry on its
business as now conducted and to perform its obligations
hereunder and under each document or instrument contemplated
by this Agreement to which it is or will be a party.
(ii) This Agreement and, to the extent such documents presently exist
in a form accepted by the City and Lender, each document
contemplated or required by this Agreement to which the City 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 City, and neither the execution and delivery thereof, nor
compliance with the terms and provisions thereof or hereof (i)
requires the approval and consent of any other party, except such
as have been duly obtained or as are specifically noted herein, (ii)
contravenes any existing law, judgment, governmental rule,
regulation or order applicable to or binding on the City, or (iii)
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MIA180, 691, 00603 10-20-10
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 City 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 City is
a party, specifically including any covenants of any bonds, notes, or
other forms of indebtedness of the City outstanding on the date of
this Agreement.
(iii) This Agreement and, to the extent such documents presently exist
in a form accepted by the City and Lender, each document
contemplated or required by this Agreement to which the City is or
will be a party constitute, or when entered into will constitute, legal,
valid and binding obligations of the City enforceable against the
City 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.
(iv) The City has established Capital Improvement Project 315-92649
(Surf Style Condominium - Parking Unit) and has transferred the
amount of $9,300,000 to this project to be used only for the
purposes expressly provided herein. The $9,300,000 project is
earmarked for the purchase of the Parking Unit by the City under
the terms and conditions of this Agreement during the term hereof.
Accordingly, from and after the date of this Agreement throughout
the entire term hereof, the City shall maintain the $9,300,000
balance in this project, and shall not spend any portion of such
funds for any purpose (other than the purchase of the Parking Unit)
for so long as the City's obligations under this Agreement remain in
effect. The resolution of the City Commission approving this
Agreement shall specifically approve the foregoing $9,300,000
project on the terms stated herein and direct the Office of
Management and Budget to insure the reserve is maintained on all
appropriate operating plans, budgets and accounts of the City.
Notwithstanding any provision in this Agreement to the contrary, if
the City breaches its obligations under this provision at any time
during the term of this Agreement (whether before or after the date
of the Put Conditions Notice), Lender shall have all rights and
remedies available to it at law and in equity with respect to such
breach, including without limitation the right to specific performance
of the City's obligations hereunder.
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(v) The Retail Units, its Owners and Permittees shall have access,
easements and other use rights over, across and upon the Parking
Unit pursuant to and to the extent provided in the Declaration.
Capitalized terms used in this clause without definition shall have
the meaning given to them in the Declaration.
All of the foregoing representation and warranties shall be true and correct on the date
of this Agreement and on the date of Closing. The provisions of this paragraph shall
survive the Closing.
9. Default Provisions. The following default provisions shall apply to any
default by a party under this Agreement after the date of the Put Conditions Notice:
(a) City Default. In the event of a default by the City under this Agreement
which is not cured within ten (10) days following written notice from
Lender, Lender shall have the right to: (i) terminate this Agreement,
whereupon the parties shall be released from all further obligations under
this Agreement, except the obligations which by their express terms
survive a termination, or, alternatively, (ii) seek specific performance of the
City's obligations hereunder and/or any other equitable remedies, without
thereby waiving damages. In addition to the foregoing, if the City defaults
in the payment. of any amount due to Lender hereunder, then such unpaid
amount shall accrue interest at the per annum rate of eighteen percent
(18%) accruing from the date of such default.
(b) Lender Default. In the event of a default by Lender under this Agreement
which is not cured within ten (10) days following written notice from the
City, the City at its option shall have the right to: (i) terminate this
Agreement, whereupon the parties shall be released from all further
obligations under this Agreement, except the obligations which by their
express terms survive a termination, or, alternatively, (ii) seek specific
performance of Lender's obligations hereunder and/or any other equitable
remedies, without thereby waiving damages.
10. Brokers. The parties each represent and warrant to the other that they
have not dealt with any real estate broker, salesman or finder in connection with this
transaction. If a claim for brokerage in connection with the transaction is made by any
broker, salesman or finder claiming to have dealt through or on behalf of one of the
parties hereto ("Indemnitor"), Indemnitor shall indemnify, defend and hold harmless the
other party hereunder ("Indemnitee"), and Indemnitee's members, shareholders,
partners, officers, directors, employees, agents and representatives, from all liabilities,
damages, claims, costs, fees and expenses whatsoever (including reasonable
attorney's fees and court costs at trial and all appellate levels) with respect to said claim
for brokerage. The provisions of this paragraph shall survive the Closing and any
cancellation or termination of this Agreement.
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11. Assignability. The City shall not be entitled to assign this Agreement, or
its rights or obligations hereunder, without the prior written consent of Lender, which
may be granted or withheld in Lender's sole discretion. Lender shall be entitled to freely
assign this Agreement (including all of its rights and obligations hereunder) without
restriction; provided, however, that the assignee shall assume all obligations of Lender
hereunder.
12. Notices. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given if delivered by
hand, sent by facsimile transmission, sent by recognized overnight courier (such as
Federal Express) or mailed by certified or registered mail, return receipt requested, in a
postage prepaid envelope, and addressed as follows:
If to the City at: City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attn: City Manager
Fax. No. (727) 562-4052
With a copy to: Pamela K. Akin, Esq.
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
Fax No. (727) 562-4021
If to Lender at: Branch Banking and Trust Company
110 East Broward Blvd., 21St floor
Ft. Lauderdale, FL 33301
Attn: Iwan Mohamed
Fax No. (954) 522-9583
With a copy to: Ruden McClosky
200 East Broward Blvd., Suite 1500
Ft. Lauderdale, FL 33301
Attn: Mark Somerstein, Esq.
Fax No. (954) 333-4015
Notices personally delivered, sent by facsimile transmission or sent by overnight courier
shall be deemed given on the date of delivery and notices mailed in accordance with the
foregoing shall be deemed given three (3) days after deposit in the U.S. mails. Each
party shall be entitled to change its address for notices from time to time by delivering to
the other party notice thereof in the manner herein provided for the delivery of notices.
13. Risk of Loss. If, between the date of the Put Conditions Notice and
Closing, the Parking Unit or any portion thereof is damaged or destroyed by fire or other
casualty or taken by eminent domain, Lender shall promptly repair and restore the
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Parking Unit to the same condition as existed before the fire or casualty and Closing
shall be deferred for a commensurate period of time to permit such repair and
restoration. In such event, Closing shall be rescheduled to the date which is ten (10)
days following the restoration of the Parking Unit to the condition that existed
immediately prior to the damage or taking (or as close to such condition as possible, in
the case of eminent domain) and issuance of a new certificate of occupancy for the
Parking Unit (if such restoration requires same). In the case of eminent domain, at
Closing, the City shall be entitled to all condemnation awards for the Parking Unit, less
any portion thereof used to restore the Parking Unit to the condition required herein.
14. Radon Gas. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your county health department.
15. Miscellaneous.
(a) This Agreement shall be construed and governed in accordance with the
laws of the State of Florida. All of the parties to this Agreement have
participated fully in the negotiation and preparation hereof; and,
accordingly, this Agreement shall not be more strictly construed against
any one of the parties hereto.
(b) In the event any term or provision of this Agreement be determined by
appropriate judicial authority to be illegal or otherwise invalid, such
provision shall be given its nearest legal meaning or be construed as
deleted as such authority determines, and the remainder of this
Agreement shall be construed to be in full force and effect.
(c) In the event of any litigation between the parties under this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees and court
costs at all trial and appellate levels. The provisions of this subparagraph
shall survive the Closing coextensively with other surviving provisions of
this Agreement.
(d) In construing this Agreement, the singular shall be held to include the
plural, the plural shall include the singular, the use of any gender shall
include every other and all genders, and captions and paragraph headings
shall be disregarded. Handwritten or typewritten provisions initialed by
Lender and the City shall prevail over any conflicting printed provisions of
this Agreement.
(e) All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
(f) Time shall be of the essence for each and every provision hereof.
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MIA 180, 691, 006v 13 10-20-10
(g) If any date upon which, or by which, action required under this Agreement
is a Saturday, Sunday or legal holiday recognized by the Federal
government, then the date for such action shall be extended to -the first
day that is after such date and is not a Saturday, Sunday or legal holiday
recognized by the Federal government.
(h) This Agreement constitutes the entire agreement between the parties and
there are no other agreements, representations or warranties with respect
to the subject matter hereof other than as set forth herein. This Agreement
may not be changed, altered or modified except by an instrument in
writing signed by City and Lender. This Agreement shall be binding upon
the parties hereto and their respective successors and permitted assigns.
(i) This Agreement may be executed in multiple counterparts each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
(j) Lender and the City each knowingly, irrevocably, voluntarily and
intentionally waive any right such party may have to a trial by jury in
respect of any action, proceeding or counterclaim based on this
Agreement, or arising out of, under or in connection with this Agreement.
This waiver of jury trial provision is a material inducement to the parties to
enter into this Agreement.
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MIA180, 691, OO603 10-2040
EXECUTED as of the date first above written.
WITNESSES: LENDER:
Print N IAey ?>?a4q sj e:
ciiq
i4 L
'2?(a Print Name: 0 -e &u CC'-
- CITY.
Attest: r , "THE CITY OF CLEARWATER, FLORIDA, a
;. ` F1torida municipal corporation
gy.
Rosemarie Call, City CI ?K?,r Frank V. Hibbard, Mayor
Approved as to form:
Pamela K. Akin
City Attorney
Branch Banking and Trust Company, a
Nei Carolina banking porporation ,
4A
Y
i ?
Title: U` ? i
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EXECUTED as of the date first above written.
WITNESSES: LENDER:
Branch Banking and Trust Company, a
North Carolina banking corporation
Print Name:
By: _
Name:
Title:
Print Name:
CITY:
Attest:
By:
Rosemarie Call, City
S ?*
C) _
Approved a to form:
U k tL
Pamela K. kin
City Attorney
CITY OF CLEARWATER, FLORIDA, a
la municipal corporation
rank V. Hibbard, Mayor
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MIA180, 691, 00603 10-20-10
EXHIBIT A
Legal Description of Property
Legal Description of Property prior to Vacation of Right-of-Way (as defined in the
Development Agreement):
PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat
thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas
County, Florida.
PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the
Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat
thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas
County, Florida.
Legal Description of Property after Vacation of Right-of-Way:
PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat
thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas
County, Florida.
PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the
Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat
thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas
County, Florida.
TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS:
The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly
boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as
recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County,
Florida, more particularly described as follows:
Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly
boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a
radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing
S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24' W along the
Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to
a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right
of way; thence 179.08 feet along said centerline and along the arc of a curve to the left
with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing
N08°35'03"E to a point of intersection with the Westerly extension of the Northerly
boundary of said Lot 60; thence S82°15'44°E a distance of 35.00 feet to the Point of
Beginning.
MIA180, 691, 00603 10-20-10
EXHIBIT A-1
Delineation of Parking Unit
The "Unit" delineated as the "Parking Unit" in the Declaration.
MIA 180, 691, 00603 10-20-10
EXHIBIT B
Form of Put Trigger Notice
[INSERT LETTERHEAD OF LENDER]
20_
VIA [ ]
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attn: City Manager
Fax. No. (727) 562-4052
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attn: City Attorney
Fax No. (727) 562-4021
Re: Put Trigger Notice under Put Agreement (Surf Style Condominium - Parking Unit) dated
_, 2010 (as amended, modified, assigned and supplemented from
time to time, the "Put Agreement") by and between Branch Banking and Trust Company,
a North Carolina banking corporation, its successors and assigns (the "Lender'), and the
City of Clearwater, Florida, a Florida municipal corporation (the "City")
Dear Sir or Madam:
Please accept this letter as Lender's official notice to the City that an event of default has
occurred under the Project Financing documents and Lender hereby elects to "put" the Parking Unit to the
City. This Put Trigger Notice is being provided to the City in accordance with the terms and conditions of
the Put Agreement, including, without limitation, the requirement for delivery of the Put Trigger Notice
prior to the Put Trigger Deadline under paragraph 1 thereof. Please note that capitalized terms not
defined herein shall have the meanings provided in the Put Agreement.
If you have any questions or wish to discuss the Closing, please contact me.
Sincerely,
Branch Banking and Trust Company, a North
Carolina banking corporation
By:
Name:
Title:
MIA180, 691, 00603 10-20-10
EXHIBIT B-1
Form of Put Conditions Notice
[INSERT LETTERHEAD OF LENDER]
20_..
VIA [ ]
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attn: City Manager
Fax. No.
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attn: City Attorney
Fax No.
Re: Put Conditions Notice under Put Agreement (Surf Style Condominium - Parking Unit)
dated _, 2010 (as amended, modified, assigned and supplemented
from time to time, the "Put Agreement") by and between Branch Banking and Trust
Company, a North Carolina banking corporation, its successors and assigns (the
"Lender"), and the City of Clearwater, Florida, a Florida municipal corporation (the "City")
Dear Sir or Madam:
As you know, Lender exercised its right to "put" the Parking Unit to the City by that certain Put
Trigger Notice dated , 20- This Put Conditions Notice is being provided to the City in
accordance with the terms and conditions of the Put Agreement, including, without limitation, the
requirement for delivery of the Put Conditions Notice prior to the Put Outside Date. As required under
paragraph 1 of the Put Agreement, Lender hereby certifies that all of the Put Conditions in the Put
Agreement have been met before the Put Outside Date. Accordingly, the closing for the Parking Unit
shall occur within sixty (60) days following the City's receipt of this Put Conditions Notice and the parties
shall close on the purchase and sale of the Parking Unit, subject and pursuant to the terms and
conditions provided in the Put Agreement. Please note that capitalized terms not defined herein shall
have the meanings provided in the Put Agreement.
If you have any questions or wish to discuss the Closing, please contact me.
Sincerely,
Branch Banking and Trust Company, a North
Carolina banking corporation
By:
Name:
Title:
MIA180, 691, 00603 10-20-10
EXHIBIT C
Existing Title Exceptions
1. Rights, if any, of the public to use as a public beach or recreation area any part
of the land lying between the body of water abutting the subject property and the
natural line of vegetation, bluff, extreme high water line, or other apparent
boundary line separating the publicly used area from the upland private area.
2. Rights of the State of Florida based on the doctrine of the state's sovereign
ownership of lands lying below the mean high water line of any navigable or
tidally influenced waters.
3. Rights of the United States government, arising by said government's control
over navigable waters involving navigation and commerce, with respect to any
portion of the Property which is artificially filled land in what was formerly
navigable waters.
4. Coastal Construction set back line as established by Section 161.052 and
Section 161.053, Florida Statutes.
5. Easements, claims of easements, boundary line disputes, overlaps,
encroachments or other matters not shown by the public records which would be
disclosed by an accurate survey of the Property.
6. Agreement for Development of Property in the City of Clearwater (Surf Style
Condominium Project) dated February 18, 2010 and recorded in Official Records
Book 16836, Page 1817, of the Public Records of Pinellas County, Florida, as
amended by First Amendment to Agreement for Development of Property
between the Developer and the City executed as of October 25, 2010 recorded
in Official Records Book , Page , of the Public Records of Pinellas
County, Florida. [Recording information to be filled in prior to Closing]
7. Terms and conditions of Construction, Access and Maintenance Easement
Agreement, by and between the City of Clearwater, Florida and L..O.M., Inc.,
dated December 17, 2009 and recorded in Official Records Book 16817, Page
1071 of the Public Records of Pinellas County, Florida.
8. Terms and conditions of that City Ordinance No. 8145-10, vacating right-of-way
recorded in Official Records Book 16856, Page 2433, of the Public Records of
Pinellas County, Florida.
MIA180, 691, 00604 10-27-10
EXHIBIT C
Existing Title Exceptions continued
9. The following state of facts as disclosed by survey prepared by SUNCOAST
LAND SURVEYING, Inc., dated June 24,2010:
a) Metal eave, masonry wall with .15' wood and vinyl covering, and concrete
footer encroach beyond the property's Northerly boundary.
b) Electric Vault encroaches beyond the property's Easterly boundary.
c) Possible easements evidenced by light poles, water valves, water meter
boxes, reclaimed water valves, irrigation control valves, telephone boxes,
cleanouts, drainage grate inlet, sanitary lines, sanitary manholes, electric boxes
and transformers located throughout the subject property.
10. Terms and conditions of that Declaration of Unity of Title (Condominiums)
recorded October 18, 2010 in Official Records Book 17061, Page 1124, of the
Public Records of Pinellas County, Florida.
MIA 180,691,00603 10-20-10
EXHIBIT D
Form of Special Warranty Deed
THIS INSTRUMENT PREPARED BY (OR
UNDER THE SUPERVISION OF) AND AFTER
RECORDING SHOULD BE RETURNED TO:
NAME:
ADDRESS:
(SPACE RESERVED FOR CLERK OF COURT)
Tax Folio No.: [a portion of] ^T
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made and entered into as of the day
of ,
address is
20 by whose mailing
("Grantor'),
to THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation, whose
mailing address is 112 S. Osceola Avenue, Clearwater, Florida 33756, Attn: City
Manager ("Grantee'). Wherever used herein, the terms "Grantor" and "Grantee" shall
include all of the parties to this instrument and their successors and assigns.
WITNESSETH:
GRANTOR, for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, has granted, bargained and sold, and by these presents does hereby
grant, bargain and sell to Grantee and Grantee's successors and assigns forever, the
following described land situate and being in Pinellas County, Florida (the "Pro a "), to
wit:
Parking Unit in SURF STYLE CONDOMINIUM, a
Condominium, according to the Declaration of Condominium
thereof, as recorded in Official Records Book
, Page , of the Public
Records of Pinellas County, Florida (as amended and
supplemented from time to time), together with an undivided
interest in the common elements appurtenant thereto.
TOGETHER WITH all the tenements, hereditaments and appurtenances
thereunto belonging or in anywise appertaining.
MIA 180, 691, 00603 10-20-10
THIS CONVEYANCE is subject to: (a) taxes and assessments for the year 20_
and all subsequent years; (b) all laws, ordinances, regulations, restrictions, prohibitions
and other requirements imposed by governmental authority, including, but not limited to,
all applicable building, zoning, land use and environmental ordinances and regulations;
(c) conditions, restrictions, limitations and easements of record, if any, but this reference
shall not operate to reimpose same; (d) Parking Covenant dated ,
20_ and recorded in Official Records Book , Page of the Public Records of
Pinellas County, Florida; and (e) the above referenced Declaration of Condominium, as
amended and supplemented from time to time.
TO HAVE and to hold the same in fee simple forever.
GRANTOR hereby covenants with Grantee that it is lawfully seized of the
Property in fee simple, that it has good right and lawful authority to sell and convey the
Property, that it hereby specially warrants the title to the Property and will defend the
same against the lawful claims of all persons claiming by, through or under Grantor, but
against no others.
IN WITNESS WHEREOF, Grantor has hereunto set its hand and seal as of the
day and year first above written.
Signed, sealed and delivered in
the presence of:
Print Name:
Print Name:
STATE OF
COUNTY OF
)
)ss:
[insert signature block for Grantor], a
By:_
Name:
Title:
The foregoing instrument was acknowledged before me this
20 by
a
as
of the bank. He is personally known to me or has produced
as identification.
_ day of
of
on behalf
Name:
My commission expires:
Notary Public, State of Florida
Commission No.
[Notarial Seal]
MIA180, 691, 00603 10-20-10