09/20/2010
COMMUNITY REDEVELOPMENT AGENCY
AGENDA
Location: Council Chambers - City Hall
Date: 9/20/2010- 9:00 AM
1. Call to Order
2. Approval of Minutes
2.1 Approve the minutes of the September 7, 2010 CRA Meeting as submitted in written summation by the
City Clerk.
Attachments
3. CRA Items
3.1 Approve a Contract For Purchase of Real Property with Society of St. Vincent de Paul Council of Upper
Pinellas County, Inc., to purchase real property described as SARAH MCMULLEN’S SUBDIVISION,
All of Block 5 North of Park Street, LESS the East 50m feet and LESS road on the North, according to
the plat thereof as recorded in Plat Book 1, Page 41, Public Records of Pinellas County, Florida; together
with MAGNOLIA PARK SUBDIVISION, Block 2, Lots 9 and 10, LESS road on the north, according to
the plat thereof as recorded in Plat Book 3, Page43, Public Records of Pinellas County, Florida, for the
sum of $587,000; authorize appropriate officials to execute same, together with all documentation
required to effect closing; authorize establishment of a project account in the amount of $625,000 to cover
purchase, closing and related expenses; and, Approve the terms and conditions of the related temporary
occupancy lease between the CRA and the Society as referenced and attached to the Contract for Purchase
as Exhibit A., and authorize the appropriate officials to execute same.
Attachments
3.2 Approve a Development Agreement between the CRA and Mainstreet Clearwater Development LLC of
Clearwater, Florida concerning the Peter Gillham’s Nutrition Center, retail and restaurant project, 422-424
Cleveland Street, delineating the terms and conditions for the provision of certain economic assistance by
the CRA.
Attachments
3.3 Approve second amendment to Development Agreement between the Clearwater Redevelopment Agency
and Clearwater Espacio Development, LLC, and authorize the appropriate officials to execute same.
Attachments
4. Adjourn
Community Redevelopment
Agency Agenda
Council Chambers - City
Hall
Meeting Date:9/20/2010
SUBJECT / RECOMMENDATION:
Approve the minutes of the September 7, 2010 CRA Meeting as submitted in written summation by the City Clerk.
SUMMARY:
Review Approval:1) Clerk
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Community Redevelopment
Agency Agenda
Council Chambers - City
Hall
Meeting Date:9/20/2010
SUBJECT / RECOMMENDATION:
Approve a Contract For Purchase of Real Property with Society of St. Vincent de Paul Council of Upper Pinellas County, Inc., to
purchase real property described as SARAH MCMULLEN’S SUBDIVISION, All of Block 5 North of Park Street, LESS the East
50m feet and LESS road on the North, according to the plat thereof as recorded in Plat Book 1, Page 41, Public Records of Pinellas
County, Florida; together with MAGNOLIA PARK SUBDIVISION, Block 2, Lots 9 and 10, LESS road on the north, according to
the plat thereof as recorded in Plat Book 3, Page43, Public Records of Pinellas County, Florida, for the sum of $587,000; authorize
appropriate officials to execute same, together with all documentation required to effect closing; authorize establishment of a
project account in the amount of $625,000 to cover purchase, closing and related expenses; and, Approve the terms and conditions
of the related temporary occupancy lease between the CRA and the Society as referenced and attached to the Contract for Purchase
as Exhibit A., and authorize the appropriate officials to execute same.
SUMMARY:
The subject property is located at 1015 Cleveland Street in the Town Lake Residential District of Downtown Clearwater. It directly
abuts the CRA Owned redevelopment site, known as the “Town Lake Parcel” on the West. The parcel is approximately 44,965 sq.
ft., 1.03 acres, and is comprised of a 17,800 sq. ft. building(thrift store and warehouse) and asphalt pavement /parking.
This property has presented an “acquisition opportunity” for the CRA at this time as the property has recently been listed for sale by
the Society.
The rationale for this acquisition is that the addition of this parcel to the CRA prime future development site—the Town Lake
parcel---materially increases the likelihood that pivotal site will realize the development objectives of the CRA and City in the
Downtown redevelopment agenda---a mixed-use residential/retail development with sufficient density to assist in the revitalization
and reinvigoration of the Downtown.
The development of rental, workforce housing for young professionals and urban residents not able to access the “for sale” market
has always been seen as the most potentially successful scenario for the site. In order to get the quality of design, retail component
and appropriate amenities, however, a project size of 200 units +/- has been sought by development interests. This “threshold”
allows for on-site management and leasing, as well as a distribution of fixed and operating costs across a sufficient base to generate
an acceptable per unit cost.
However, the constraints of the site under these development parameters necessitate structured, expensive parking integrated with
the residential component, generating an expensive construction cost per square foot that challenges the ability for projects to
achieve profitability with supportable rent levels. This was an issue with the Miles Development project, and has been cited as a
problem by other developers who have contemplated a project of the density and quality desired by the CRA. It will likely be an
issue of greater magnitude in the immediate future development environment.
Acquisition/availability of the St. Vincent de Paul parcel has always been seen as a means to increase the feasibility of
development, by allowing a better segregation of uses, less costly construction costs, and better site functionality. For example, the
additional acre along Cleveland Street could allow for the “de-coupling” of the parking and the residential structures—a significant
cost savings-- and more opportunity to accommodate required amenities at a lesser cost.
However, to date the property has not been available for purchase. CRA acquisition and consolidation of the parcel with the
existing Town Lake property would allow the CRA to take a much more attractive project site to market and significantly heighten
our prospect of achieving our development objective for the site.
The purchase price of $587,000 represents the mid- point between appraisals of $600,000 and $575,000 obtained on the property.
The listing price was $660,000.
Because the Society has the need and desire to find a relocation site for the Thrift Store location as a major concern—and an
acceptable alternative has not yet been found-- a companion lease would allow the Society to lease back the property for $1 per
annum, triple net, with the CRA held completely harmless, for up to one year. An additional lease period of six (6) months could be
exercised, at the option of the Society, if relocation space had not been located within one year. That extension would be at a triple-
net rate of $3/square foot. No further extension would be allowed.
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Since the CRA does not anticipate the need to occupy the site over the next eighteen months, accommodating the Society would
allow us to close the transaction without negative impact to the CRA. Should a development interest come forward in the interim,
we would have ownership and could allow development planning to move forward with surety.
Funding for this acquisition is recommended to be from the CRA Redevelopment Fund and the acquisition cost was included in the
updated Five Year Financial Plan presented in conjunction with the FY 2010/2011 CRA Budget. If approved, a new project #388-
94867 entitled “St Vincent de Paul Property Acquisition” will be established for this purchase transferring $625,000 from project
#388-94714 to the new project..
Staff recommends approval of the Contract for Purchase and the lease contract.
Type:Purchase
Current Year Budget?:Yes Budget Adjustment:None
Budget Adjustment Comments:
Current Year Cost:Annual Operating Cost:
Not to Exceed:Total Cost:
For Fiscal Year: to
Appropration Code Amount Appropriation Comment
388-94867 $625,000
Bid Required?:No Bid Number:
Other Bid / Contract:Bid Exceptions:None
Review Approval:1) Legal 2) Clerk 3) Assistant City Manager ED 4) City Manager 5) Clerk
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CONTRACT FOR PURCHASE OF REAL PROPERTY
BY
THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA
PARTIES: SOCIETY OF ST. VINCENT DE PAUL COUNCIL OF UPPER PINELLAS COUNTY, INC., a
not-for-profit corporation, having its principal place of business at 1015 Cleveland Street, Clearwater,
Florida 33755 (herein "Seller"), and the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida, 112 South
Osceola Avenue, Clearwater, Florida 33756 (herein "Buyer" or "CRA"), (collectively "Parties") hereby
agree that the Seller shall sell and Buyer shall buy the following real property, including all
improvements thereon and fixtures attached thereto ("Property"), upon the following terms and
conditions.
1. PROPERTY DESCRIPTION Pinellas County Parcel I. D. 15-29-15-53928-005-0010 and 15-29-
15-54450-002-0090
LEGAL DESCRIPTION: SARAH MCMULLEN’S SUBDIVISION, All of Block 5 north of Park Street,
LESS the east 50 feet and LESS road on the north, according to the plat thereof as recorded in Plat
Book 1, Page 41, Public Records of Pinellas County, Florida; together with MAGNOLIA PARK
SUBDIVISION, Block 2, Lots 9 and 10, LESS road on the north, according to the plat thereof as
recorded in Plat Book 3, Page 43, Public Records of Pinellas County, Florida.
2. FULL PURCHASE PRICE ...........................................………………….. $ 587,000.00
3. MANNER OF PAYMENT: City of Clearwater check in U.S. funds
at time of closing ...............................…….... $ 587,000.00
4. PURCHASE PRICE
The Full Purchase Price as established herein has been reached through CRA representative
discussions and negotiations with Seller and Seller real estate representatives, upon and following due
consideration of that certain real estate appraisal dated March 15, 2010 as developed for Seller by
James M. Millspaugh, MAI; that valued the Property at $600,000; and that certain real estate appraisal
dated June 2, 2010 as developed for Buyer by K. Mitchell Caldwell, MAI, that valued the Property at
$575,000.
5. TIME FOR ACCEPTANCE
Following execution of this Contract by Seller, the price, terms and conditions as contained herein shall
remain unchanged and be held unconditionally open for a period of 45 days following delivery in
duplicate original to the CRA for acceptance and approval, or rejection, by action of the CRA Board of
Directors (“Board”). If this Contract is accepted and approved by the Board, it will be executed by duly
authorized CRA officials (the “Effective Date”) and delivered to Seller within 10 business days
thereafter. If the Board rejects this contract upon initial presentation, this contract shall be null and void
in all respects and the Seller shall be so informed in writing within 5 business days thereafter. A
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facsimile or electronically transmitted copy of this Contract and any signatures hereon shall be
considered for all purposes as an original.
6. TITLE
Seller warrants legal capacity to and shall convey marketable title to the Property by Statutory Warranty
Deed, subject only to matters contained in Paragraph 7 acceptable to Buyer. Otherwise title shall be
free of liens, easements and encumbrances of record or known to Seller, but subject to property taxes
for the year of closing; covenants, restrictions and public utility easements of record; and no others
provided there exists at closing no violation of the foregoing and none of them prevents Buyer's
intended use of the Property. Seller warrants and represents that there is ingress and egress to the
Property sufficient for the Buyer’s intended use to hold for redevelopment.
7. TITLE EVIDENCE
Seller shall, at Seller expense and within 15 days prior to closing date obtain a title insurance
commitment issued by a licensed Florida title insurance agent agreeing to liens, encumbrances,
exceptions or qualifications set forth in this Contract, and those which shall be discharged by Seller at
or before closing. Seller shall convey a marketable title subject only to liens, encumbrances, exceptions
or qualifications set forth in this Contract. Marketable title shall be determined according to applicable
Title Standards adopted by The Florida Bar and in accordance with law. Buyer shall have 5 days from
receiving evidence of title to examine it. If title is found defective, Buyer shall, within 3 days thereafter,
notify Seller in writing specifying defect(s). If the defect(s) render title unmarketable, Seller will have
120 days from receipt of notice within which to remove the defect(s), failing which Buyer shall have the
option of either accepting the title as it then is or withdrawing from this Contract. Seller will, if title is
found unmarketable, make diligent effort to correct defect(s) in title within the time provided therefor,
including the bringing of necessary suits.
8. SURVEY
Buyer, at Buyer's option and expense, within time allowed to deliver evidence of title and to examine
same, may have Real Property surveyed and certified to the Buyer, Seller and closing agent by a
registered Florida land surveyor of Buyer’s choice. If survey shows any encroachment on Real
Property, or that improvements located on Real Property encroach on setback lines, easements, lands
of others, or violate any restrictions, contract covenants or applicable governmental regulation, the
same shall constitute a title defect. The survey shall be performed to minimum technical standards of
the Florida Administrative Code and may include a description of the property under the Florida
Coordinate System as defined in Chapter 177, Florida Statutes.
9. CLOSING PLACE AND DATE
Seller shall designate closing agent and this transaction shall be closed at a mutually agreed time in the
offices of the designated closing agent in Pinellas County, Florida, on or before sixty (60) days
following the Effective Date as set forth in paragraph 5 above, unless extended by other provisions
of this contract. If either party is unable to comply with any provision of this contract within the time
allowed, and be prepared to close as set forth above, after making all reasonable and diligent efforts to
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comply, then upon giving written notice to the other party, time of closing may be extended up to 60
days without effect upon any other term, covenant or condition contained in this contract.
10. CLOSING DOCUMENTS
Seller shall furnish closing statements for the respective parties, provide and deliver the deed, bill of
sale, mechanic's lien affidavit, tenant and mortgage release estoppel letters, and corrective instruments
as may be applicable. If Seller is a corporation, Seller shall deliver a resolution of its Board of Directors
authorizing the sale and delivery of the deed and certification by the corporate Secretary certifying the
resolution and setting forth facts showing the conveyance conforms to the requirements of local law.
11. CLOSING EXPENSES
Seller, unless this transaction is exempt under Chapter 201.24, Florida Statutes, shall pay documentary
stamps on the deed. Seller shall pay the costs of recording any corrective instruments. Buyer shall pay
for recordation of the deed.
12. PRORATIONS; CREDITS
Property taxes and any governmental assessments accruing against the Property shall be paid by
Seller and prorated through the day before closing. Closing agent shall collect all ad valorem taxes
uncollected but due through day prior to closing and deliver same to the Pinellas County Tax Collector
with notification to thereafter exempt the Property from taxation as provided in Chapter 196.012(6),
Florida Statutes. If the amount of taxes and assessments for the current year cannot be ascertained,
rates for the previous year shall be used with due allowance being made for improvements and
exemptions. Assessments for any improvements that are substantially complete at time of closing shall
be paid in full by Seller.
13. OCCUPANCY
Seller warrants and shall validate and affirm at or prior to closing that the property has no tenancies or
others in occupancy other than the Seller.
14. PROPERTY CONDITION
Seller shall deliver the property to Buyer at time of closing in its present “as is” condition, subject to
Buyer Right of Inspection as provided hereafter, ordinary wear and tear excepted, and shall maintain
the landscaping and grounds in a comparable condition as to the date of Seller execution hereof.
Buyer may, at Buyer option and expense within 45 days following the Effective Date (“Inspection
Period”), conduct inspections, tests, environmental and any other investigations of the Property Buyer
deems necessary to determine suitability for Buyer’s intended use for future redevelopment. Seller
shall grant reasonable access to the Property to Buyer, its employees, agents, contractors and assigns
for the purposes of conducting the inspections as provided herein; however, that all such persons
entering upon the Property and conducting the inspections and investigations shall do so at their own
risk. Seller will, upon reasonable notice, provide utilities services as may be required for Buyer’s
inspections and investigations. Buyer shall not engage in any activity that could result in mechanics lien
being filed against the Property without Seller’s prior written consent. Buyer may terminate this contract
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by written notice to Seller prior to expiration of the Inspection Period if the inspections and/or
investigations reveal conditions which are reasonably unsatisfactory to Buyer. If this transaction does
not close, Buyer agrees, at Buyer expense, to repair all damages to the Property resulting from the
inspections and investigations, and return the Property to Seller in its present condition.
15. WALK-THROUGH INSPECTION
At a time mutually agreeable between the parties, but not later than the day prior to closing, Buyer may
conduct a final “walk-through” inspection of the Property to determine compliance with any Seller
obligations under Paragraphs 13 and 14 hereof. No new issues may be raised as a result of the walk-
through.
16. RISK OF LOSS
If the property is damaged by fire or other casualty before closing, and the cost of restoration does not
exceed 10% of the appraised valuation of the Property so damaged, cost of restoration shall be an
obligation of the Seller and closing shall proceed pursuant to the terms of this contract with restoration
costs credited to Buyer at closing. If the cost of restoration exceeds 10% of the appraised valuation of
the improvements so damaged, Buyer shall have the option of either taking the Property “as is”;
together with either 10% of any insurance proceeds payable by virtue of such loss or damage, or of
cancelling this contract.
17. PROCEEDS OF SALE; CLOSING PROCEDURE
The deed shall be recorded upon clearance of funds. Proceeds of sale shall be held in escrow by
Seller's attorney or by such other mutually acceptable escrow agent for a period of not longer than 5
days from and after closing, during which time evidence of title shall be continued at Buyer's expense to
show title in Buyer, without any encumbrances or change which would render Seller's title unmarketable
from the date of the last title evidence. If Seller's title is rendered unmarketable through no fault of the
Buyer, Buyer shall, within the 5-day period, notify the Seller in writing of the defect and Seller shall have
30 days from the date of receipt of such notification to cure the defect. If Seller fails to timely cure the
defect, all funds paid by or on behalf of the Buyer shall, upon written demand made by Buyer and within
5 days after demand, be returned to Buyer and simultaneously with such repayment, Buyer shall return
Personalty and vacate Real Property and reconvey it to Seller by special warranty deed. If Buyer fails
to make timely demand for refund, Buyer shall take title "as is", waiving all rights against Seller as to
any intervening defect except as may be available to Buyer by virtue of warranties contained in the
deed. The escrow and closing procedure required by this provision may be waived if title agent insures
adverse matters pursuant to Section 627.7841, F.S. (2009), as amended.
18. DEFAULT
If this transaction is not closed due to any default or failure on the part of the Seller, other than to make
the title marketable after diligent effort, Buyer may seek specific performance or unilaterally cancel this
agreement upon giving written notice to Seller. If this transaction is not closed due to any default or
failure on the part of the Buyer, Seller may seek specific performance. If a Broker is owed a brokerage
fee regarding this transaction, the defaulting party shall be liable for such fee.
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19. SELLER WARRANTIES
Seller warrants that there are no facts known to Seller that would materially effect the value of the
Property, or which would be detrimental to the Property, or which would effect Buyer's desire to
purchase the property except as follows: (Specify known defects. If none are known, write “NONE”.
If no entry, it will be deemed that Seller has entered “NONE”)
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
Buyer shall have fifteen (30) days following the Effective Date to investigate said matters as disclosed
by the Seller, and shall notify Seller in writing whether Buyer will close on this contract notwithstanding
said matters, or whether Buyer shall elect to cancel this contract. If Buyer fails to so notify Seller within
said time period, Buyer shall be deemed to have waived any objection to the disclosed matters and
shall have the obligation to close on the contract.
20. RADON GAS NOTIFICATION
In accordance with provisions of Section 404.056(5), Florida Statutes (2009), as amended, Buyer is
hereby informed as follows:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons
who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your County public health unit.
21. CONTRACT NOT RECORDABLE; PERSONS BOUND
Neither this contract nor any notice of it shall be recorded in any public records. This contract shall bind
and inure to the benefit of the parties and their successors in interest. Whenever the context permits,
singular shall include plural and one gender shall include all.
22. NOTICE
All notices provided for herein shall be deemed to have been duly given if and when deposited in the
United States Mail, properly stamped and addressed to the respective party to be notified, including the
parties to this contact, the parties attorneys, escrow agent, inspectors, contractors and all others who
will in any way act at the behest of the parties to satisfy all terms and conditions of this contract.
23. ASSIGNABILITY; PERSONS BOUND
This contract is not assignable. The terms "Buyer", "Seller", and "Broker" (if any) may be singular or
plural. This Contract is binding upon Buyer, Seller, and their heirs, personal representatives, successors
and assigns (if assignment is permitted).
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24. BROKER REPRESENTATION
Seller is represented in this transaction by Colliers Arnold Clearwater (“Broker”) and shall be
responsible for payment of any fees and commissions due and payable to Broker. Buyer represents
that Buyer is not represented by any Broker in this transaction and that Buyer is not obligated for any
fees and commissions to any real estate Broker or agent in connection with this Contract.
25. ATTORNEY FEES; COSTS
Each party shall be responsible for its own attorney’s fees in connection with this Contract, including
any litigation arising out of this contract.
26. TYPEWRITTEN OR HANDWRITTEN PROVISIONS
Typewritten or handwritten provisions shall control all printed provisions of contract in conflict with them.
27. EFFECT OF PARTIAL INVALIDITY
The invalidity of any provision of this contract will not and shall not be deemed to affect the validity of
any other provision. In the event that any provision of this contract is held to be invalid, the parties
agree that the remaining provisions shall be deemed to be in full force and effect as if they had been
executed by both parties subsequent to the expungement of the invalid provision.
28. GOVERNING LAW
It is agreed by and between the parties hereto that this contract shall be governed by, construed, and
enforced in accordance with the laws of the State of Florida.
29. COUNTERPARTS; FACSIMILE COPY
This contract may be executed in two or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one instrument. A facsimile copy of this contract, including any
addendum, attachments and any written modifications hereof, and any initials or signature thereon shall
be deemed an original.
30. BUSINESS LEASE CONTRACT ADDENDUM
It is agreed by and between the parties that execution, implementation and fulfillment of the terms and
provisions of that certain Business Lease Contract respective to the subject Property, an exact copy of
which is appended hereto as EXHIBIT “A”, is integral, appurtenant to and a part of this Contract.
31. ENTIRE AGREEMENT
Upon execution by Seller and Buyer, this contract shall constitute the entire agreement between the
parties, shall supersede any and all prior and contemporaneous written and oral promises,
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representations or conditions in respect thereto. All prior negotiations, agreements, memoranda and
writings shall be merged herein. Any changes to be made in this agreement shall only be valid when
expressed in writing, acknowledged by the parties and incorporated herein or attached hereto.
EXECUTED this _______ day of ________________________, 2010 by Seller.
SOCIETY OF ST. VINCENT DE PAUL OF
UPPER PINELLAS COUNTY, INC.
By: _______________________________________
Patrick J. Farmer, President
APPROVED BY BUYER & EFFECTIVE this _______ day of __________________________, 2010.
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER,
FLORIDA
By: ___________________________________
Frank V. Hibbard, its CHAIRMAN
____________________________________
Rod Irwin, its EXECUTIVE DIRECTOR
Approved as to form: Attest:
___________________________________ _________________________________
Laura Mahony Rosemarie Call
Assistant City Attorney City Clerk
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BUSINESS LEASE CONTRACT
THIS LEASE CONTRACT, entered into 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, as Lessor, and the SOCIETY
OF ST. VINCENT DEPAUL COUNCIL OF UPPER PINELLAS COUNTY, INC., a not-for-profit
corporation, as Lessee.
W I T N E S S E T H:
That the Lessor does lease to the Lessee the following premises consisting of the land and all
improvements thereon addressed at 1015 Cleveland Street, Clearwater, Florida, Pinellas County,
Florida, and being more specifically described as follows:
SARAH MCMULLEN’S SUBDIVISION, all of Block 5 north of Part Street, LESS the
east 50 feet and LESS the road on the north, according to the plat thereof as
recorded in Plat Book 1, Page 41, Public Records of Pinellas County, Florida;
together with MAGNOLIA PARK SUBDIVISION, Block2, Lots 9 and 10, LESS road
on the north, according to the plat thereof as recorded in Plat Book 3, Page 43,
Public Records of Pinellas County, Florida.
Such property shall hereinafter be referred to as the "leased premises" or the “demised
premises" or the "leased property."
1. LEASE TERM.
The term of this lease shall be for one (1) year; which term will commence on the day of closing
of that certain Contract For Purchase of Real Property by and between the parties entered into the
______ day of ____________________, 2010, a true and correct copy of this instrument being
appended thereto as EXHIBIT “A”, being integral and appurtenant to said Contract; and shall
continue until midnight on the 365th day thereafter (herein called the "initial term"). Lessee shall have
the option to extend the term of this lease for one successive period not to exceed six (6) months (the
“extended term”) with written consent of Lessor, and upon prompt and timely payment of Rent as
provided in Article 2 hereafter. No such renewal or extension shall be deemed a waiver by Lessor of
any breach or default which may then exist. The extended term shall be upon the same conditions
and terms, and the rent shall be payable, as provided in this agreement, except that there shall be no
privilege to extend the term beyond the expiration of the extended term period as hereinabove
specified. The Lessee shall exercise the option for an extended term by notifying the Lessor in writing
at least two (2) calendar months prior to the expiration of the initial term. Upon such exercise, this
lease shall be deemed to be extended without the execution of any further lease or other instrument.
Failure to exercise the option as required herein shall nullify the option for the extended term. If
Lessee is not in default of any lease provision, Lessee shall further have the privilege and option of
terminating this lease upon giving Lessor not less than thirty (30) days written notice prior to vacating
the lease premises, and fully paying any and all costs, including, but not limited to, rent, utilities,
taxes and insurance expenses for which Lessee is responsible.
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2. RENT.
The Lessee agrees to pay and the Lessor agrees to accept as rent during the initial term of
this lease, the sum of One and 00/100 Dollars ($1.00), the receipt and sufficiency of which is hereby
acknowledged. Should Lessee exercise its privilege to extend the term hereof as provided above,
Lessee shall pay to Lessor the total sum $26,700.00, payable in monthly installments of $4,450.00,
plus applicable sales tax, if any, commencing upon the first day of the extended term and due and
promptly payable in monthly calendar date thereafter throughout the extended term.
3. USE OF PREMISES.
The premises are leased to Lessee solely for the following uses and no other use can be
made of the premises during the term without the written consent of the Lessor: The premises will be
used by Lessee in continuance of its operations as a “thrif t store” as functioning and operating prior
to entering into this Lease Contract.
4. UTILITIES.
Water, sewer, electric and all other utilities of any kind shall be billed directly to Lessee and are
or shall be individually metered for the subject premises. All deposits for such utilities shall be the
sole responsibility of Lessee.
5. TAXES.
Lessee shall be responsible for and pay any real and intangible personal property taxes, if any,
that may be assessed and levied on the property or on the leasehold created by this document.
6. OBSERVANCE OF LAWS AND ORDINANCES.
Lessee agrees to observe, comply with and execute promptly at its expense during the term
hereof, all laws, rules, requirements, orders, directives, codes, ordinances and regulations of
governmental authorities and agencies and of insurance carriers which relate to its use or occupancy
of the demised premises.
7. ASSIGNMENT OR SUBLEASE.
Lessee shall not, without first obtaining the written consent of Lessor, assign, mortgage,
pledge, or encumber this lease, in whole or in part, or sublet the premises or any part thereof. Lessor
may withhold such consent at its discretion. This covenant shall be binding on the legal
representatives of Lessee, and on every person to whom Lessee's interest under this lease passes
by operation of law, but it shall not apply to an assignment or subletting to the parent or subsidiary of
a corporate lessee or to a transfer of the leasehold interest occasioned by a consolidation or merger
involving such lessee.
If the premises are sublet or occupied by anyone other than Lessee, and Lessee is in default
hereunder, or if this lease is assigned by Lessee, Lessor may collect rent from the assignee,
subtenant, or occupant, and apply the net amount collected to the rent herein reserved. No such
collection shall be deemed a waiver of the covenant herein against assignment and subletting, or the
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acceptance of such assignee, subtenant, or occupant as Lessee, or a release of Lessee from further
performance of the covenants herein contained.
8. ALTERATIONS AND IMPROVEMENTS.
The Lessee shall not make any structural alterations or modifications or improvements which
are part of the leased property without the written consent of the Lessor, and any such modifications
or additions to said property shall become the property of the Lessor upon the termination of this
lease or, at Lessor's option, the Lessee shall restore the leased property at Lessee's expense to its
original condition. The restrictions of this paragraph shall not apply to maintenance of the leased
property, but shall apply to any change which changes the architecture or purpose of the property or
which changes any of the interior walls of the improvements or which annexes a fixture to any part of
the leased property which cannot be removed without damage thereto. In the event Lessee desires
to make any alterations or modifications, written notice shall be given to the Lessor. Unless the
Lessor objects to such proposals by notice to Lessee within twenty (20) days after written notice from
Lessee, the proposal shall be deemed approved. Lessee shall have no power or authority to permit
mechanics’ or materialmen's liens to be placed upon the leased property in connection with
maintenance, alterations or modifications. Lessee shall, within fifteen (15) days after notice from
Lessor, discharge any mechanic's liens for materials or labor claimed to have been furnished to the
premises on Lessee's behalf. Not later than the last day of the term Lessee shall, at Lessee's
expense, remove all of Lessee's personal property and those improvements made by Lessee which
have not become the property of Lessor, including trade fixtures and the like. All property remaining
on the premises after the last day of the term of this lease shall be conclusively deemed abandoned
and may be removed by Lessor and Lessee shall reimburse Lessor for the cost of such removal.
9. RISK OF LOSS.
All personal property placed or moved onto or into the premises shall be at the risk of the
Lessee or owner thereof. The Lessor shall not be responsible or liable to the Lessee for any loss or
damage that may be occasioned by or through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connected with the premises hereby leased or
any part of the building which the leased premises are a part of or any loss or damage resulting to
the Lessee or its property from bursting, stopped up or leaking water, gas, sewer or steam pipes
unless the same is due to the negligence of the Lessor, its agents, servants or employees.
10. RIGHT OF ENTRY.
Lessor, or any of its agents, shall have the right to enter said premises during all reasonable
hours, to examine the same to make such repairs, additions or alterations as may be deemed
necessary for the safety, comfort, or preservation thereof, or of said building, or to exhibit said
premises. The right of entry shall likewise exist for the purpose of removing placards, signs, fixtures,
alterations or additions, which do not conform to this agreement.
11. RESTORING PREMISES TO ORIGINAL CONDITION.
Lessee represents that the premises leased are in good, sanitary and tenantable condition for
use by Lessee. Lessee's acceptance or occupancy of the leased premises shall constitute a
recognition of such condition. Lessee hereby accepts the premises in the condition they are in at the
beginning of this lease and agrees to maintain said premises in the same condition, order and repair
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as they are at the commencement of said term, and to return the premises to their original condition
at the expiration of the term, excepting only reasonable wear and tear arising from the use thereof
under this agreement. Lessee agrees to make good to said Lessor immediately upon demand, any
damage to water apparatus, or electric lights or any fixture, appliances or appurtenances of said
premises, or of the walls or the building caused by any act or neglect of Lessee or of any person or
persons in the employ or under the control of the Lessee.
12. INSURANCE.
Lessee agrees to comply with all terms, provisions and requirements contained in Exhibit “B”
attached hereto and made a part hereof as if said document were fully set forth at length herein.
13. MAINTENANCE.
Lessee shall keep the foundation, outer walls, roof and buried conduits of the premises in
good repair. The Lessor shall not be called on to make any such repairs occasioned by the
negligence of the Lessee, its agents, express or implied invitees, or employees. Lessee shall keep
the inside of said premises and the interior doors, windows and window frames of said premises in
good order, condition and repair and shall also keep the premises in a clean, sanitary and safe
condition in accordance with law and in accordance with all directions, rules and regulations of
governmental agencies having jurisdiction. The Lessee shall be responsible for providing all light
bulbs used on the premises. The plumbing facilities shall not be used for any other purposes than
that for which they are constructed and no foreign substances of any kind shall be thrown therein,
and the expense of any breakage, stoppage or damage resulting from the violation of this provision
shall be borne by the Lessee. The heating and air-conditioning system and plumbing facilities shall
be under the control of Lessee, and Lessee agrees that all operation, upkeep, repairs and
replacements will be at Lessee's expense. In the event Lessor pays any monies required to be paid
by Lessee hereunder, Lessor shall demand repayment of same from Lessee and Lessee shall make
payment within ten (10) days of receipt of said demand. Lessee's failure to make such repayment
within the ten (10) day period shall constitute a default under the terms of this lease.
14. DESTRUCTION OF PREMISES.
In the event that the building should be totally destroyed by fire, earthquake or other cause, to
such an extent that it cannot be rebuilt or repaired within one hundred twenty (120) days after the
date of such destruction, either party may terminate this lease.
In the event that the building should be partially damaged by fire, earthquake or other cause,
but only to such an extent that it can be rebuilt or repaired within one hundred twenty (120) days after
the date of such destruction, the lease shall be void or voidable, but not terminated, except as
otherwise provided herein. If the Lessee intends to rebuild or repair the premises, Lessee shall,
within fifteen (15) days after the date of such damage, give written notice to Lessor of the intention to
rebuild or repair and shall proceed with reasonable diligence to restore the building and other
improvements to substantially the same condition as existed immediately prior to the destruction.
During the period of rebuilding or repairing, there shall be no diminution of rents. If, after rebuilding or
repairing has commenced, such rebuilding or repairing can not be completed within one hundred
twenty (120) days after the date of commencement, the Lessor, at Lessor option, may terminate the
lease.
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15. EMINENT DOMAIN.
If the whole or any part of the premises hereby leased shall be taken by any public authority
under power of eminent domain, then the term of this lease shall cease on the part so taken from the
date title vests pursuant to such taking, and the rent and any additional rent shall be paid up to that
day, and if such portion of the demised premises is so taken as to destroy the usefulness of the
premises for the purpose for which the premises were leased, then from that day the Lessee shall
have the right to either terminate this lease or to continue in possession of the remainder of the same
under the terms herein provided. The parties agree that the Lessee shall not be entitled to any
damages by reason of the taking of this leasehold, or be entitled to any part of the award for such
taking, or any payment in lieu thereof.
16. SUBORDINATION.
This lease and the rights of the Lessee hereunder are hereby made subject and subordinate
to all bona fide mortgages now or hereafter placed upon the said premises by the Lessor and any
other owner provided, however, that such mortgages will not cover the equipment and furniture or
furnishings on the premises owned by the Lessee. The Lessee further agrees to execute any
instrument of subordination which might be required by mortgagee of the Lessor.
17. DEFAULT; REMEDIES.
(a) If the Lessee shall violate any of the covenants of this lease and fail to correct such default
within fifteen (15) days after a written request by the Lessor to do so, then the Lessor may, at its
option, deem this lease terminated, accelerate all rents and future rents called for hereunder and
Lessee shall become a tenant at sufferance, and the Lessor shall be entitled to obtain possession of
the premises as provided by law.
(b) In case the leased property shall be abandoned, as such term is defined by Florida
Statutes, the Lessor, after written notice as provided by Florida Statutes to the Lessee, Lessor may
(i) re-enter the premises as the agent of the Lessee, either by force or otherwise, without being liable
to any prosecution or claim therefore, and may relet the leased property as the agent of the Lessee
and receive the rent therefore and apply the same to the payment of such expenses as Lessor may
have incurred in connection with the recovery of possession, reduction, refurbishing or otherwise
changing or preparing for reletting, including brokerage and reasonable attorneys fees. Thereafter, it
shall be applied to the payment of damages and to the cost and expenses of performance of the
other covenants of Lessee as provided herein; or (ii) the Lessor may, at its option, terminate this
lease by giving the Lessee fifteen (15) days' written notice of such intention served upon the Lessee
or left upon the leased property, and the term hereof shall absolutely expire and terminate
immediately upon the expiration of said fifteen (15) day period.
(c) The Lessor, at its option, may terminate this lease as for a default upon the occurrence of
any or all of the following events: an assignment by Lessee for the benefit of creditors; or the filing of
a voluntary or involuntary petition by or against Lessee under any law for the purpose of adjudicating
Lessee bankrupt; or for reorganization, dissolution, or arrangement on account of or to prevent
bankruptcy or insolvency; or the appointment of a receiver of the assets of Lessee; or the bankruptcy
of the Lessee. Each of the foregoing events shall constitute a default by Lessee and breach of this
lease.
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18. MISCELLANEOUS.
(a) The Lessor shall have the unrestricted right of assigning this lease at any time, and in the
event of such assignment, the Lessor shall be relieved of all liabilities hereunder.
(b) This contract shall bind the Lessor and its assigns or successors, and the Lessee and
assigns and successors of the Lessee.
(c) It is understood and agreed between the parties hereto that time is of the essence of this
contract and this applies to all terms and conditions contained herein.
(d) It is understood and agreed between the parties hereto that written notice sent by certified
or registered mail, or hand delivered to the premises leased hereunder, shall constitute sufficient
notice to the Lessee, and written notice sent by certified or registered mail or hand delivered to the
office of the Lessor shall constitute sufficient notice to the Lessor, to comply with the terms of this
contract.
(e) The rights of the Lessor under the foregoing shall be cumulative, and failure on the part of
the Lessor to exercise promptly any rights given hereunder shall not operate to forfeit any of the said
rights.
(f) It is hereby understood and agreed that any signs to be used by Lessee, except inside the
building, shall be subject to the prior approval of the Lessor.
(g) It is understood that no representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some future writing signed by the
party making such representations or promises.
(h) It is hereby agreed that if any sum due from Lessee is not received by Lessor within five (5)
days after such amount shall be due, Lessee shall pay to Lessor a late charge equal to ten percent
(10%) of such overdue amount. The Lessor shall not be required to accept any sum not paid within
five (5) days subsequent of the date when due absent the simultaneous payment of this late charge.
The requirement for a late charge set out herein shall not be construed to create a curative period or
a grace period for the timely payment of any sum due hereunder.
19. SUBROGATION.
The Lessor and Lessee do agree that each will cause its policies of insurance for fire and
extended coverage to be so endorsed as to waive any rights of subrogation which would be
otherwise available to the insurance carriers, by reason of any loss or damage to the leased property
or property of Lessor. Each party shall look first to any insurance in its favor before making any claim
against the other party. Nothing contained herein shall in any way be considered or construed as a
waiver or release by the Lessor of any and all of the other covenants and conditions contained in this
lease to be performed by the Lessee.
20. ESTOPPEL LETTER.
In the event Lessor shall obtain a loan from an institutional lender, and if the following shall be
a requirement of such loan, the Lessee agrees to execute an estoppel letter in favor of the lender
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verifying the standing of the lease, the terms thereof, and all amounts paid thereunder and such
other matters as may be reasonably requested.
21. INDEMNIFICATION.
The Lessee shall indemnify the Lessor against all liabilities, expenses and losses incurred by
the Lessor arising out of or related to the leased premises or Lessee's use or occupancy thereof, to
include but not being limited to (a) failure by the Lessee, or its agents, to perform any provision, term,
covenant or agreement required to be performed by the Lessee under this agreement; (b) any
occurrence, injury or personal or property damage which shall happen in or about the leased property
or appurtenances resulting from the condition, maintenance, construction on or of the operation of
the leased property; (c) failure to comply with any requirements of any governmental authority or
insurance company insuring the leased property or its contents; (d) any security agreement,
conditional bill of sale or chattel mortgage or mechanic's lien connected with Lessee, its obligations
or operations, filed against the leased property, fixtures, equipment or personalty therein; and (e) any
construction, work, alterations or improvements by Lessee on the leased property. Such
indemnification shall include reasonable attorney’s fees for all proceedings, trials and appeals.
22. “AS IS” CONDITION.
The Lessee accepts the leased premises on an “as is” basis as of the commencement date,
and Lessor shall have no obligation to improve or remodel the leased premises.
23. CONSTRUCTIVE EVICTION.
Lessee shall not be entitled to claim a constructive eviction from the premises unless Lessee
shall have first notified Lessor in writing of the condition or conditions giving rise thereto and, if the
complaints be justified, unless Lessor shall have failed within a reasonable time after receipt of such
notice to remedy such conditions.
24. JANITORIAL EXPENSES.
Lessee shall obtain janitorial services for the leased premises at its expense.
25. SEVERANCE.
The invalidity or unenforceability of any portion of this lease shall in nowise affect the
remaining provisions and portions hereof.
26. CAPTIONS.
The paragraph captions used throughout this lease are for the purpose of reference only and
are not to be considered in the construction of this lease or in the interpretation of the rights or
obligations of the parties hereto.
29. NO HAZARDOUS MATERIALS.
The Lessee herewith covenants and agrees that no hazardous materials, hazardous waste, or
other hazardous substances will be used, handled, stored or otherwise placed upon the property or,
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in the alternative, that such materials, wastes or substances may be located on the property, only
upon the prior written consent of the Lessor hereunder, and only in strict accord and compliance with
any and all applicable state and federal laws and ordinances. In the event such materials are
utilized, handled, stored or otherwise placed upon the property, Lessee expressly herewith agrees to
indemnify and hold Lessor harmless from any and all costs incurred by Lessor or damages as may
be assessed against Lessor in connection with or otherwise relating to said hazardous materials,
wastes or substances at anytime, without regard to the term of this lease. This provision shall
specifically survive the termination hereof.
30. CONFORMANCE WITH LAWS.
Lessee agrees to comply with all applicable federal, state and local laws during the life of this
Contract.
31. ATTORNEY’S FEES.
In the event that either party seeks to enforce this Contract through attorneys at law, then the
parties agree that each party shall bear its own attorney fees and costs.
32. GOVERNING LAW.
The laws of the State of Florida shall govern this Contract; any action brought by either party
shall lie in Pinellas County, Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the date set
forth above.
SOCIETY OF ST. VINCENT DE PAUL COUNCIL
OF UPPER PINELLAS COUNTY, INC.
Date: ______________________, 2010 By: _____________________________________
Patrick J. Farmer, President
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER,
FLORIDA
Date: _______________________ 2010 By:____________________________________
Frank V. Hibbard, its CHAIRMAN
____________________________________
Rod Irwin, its EXECUTIVE DIRECTOR
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EXHIBIT “A”
CONTRACT FOR PURCHASE OF REAL PROPERTY
BY
THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA
PARTIES: SOCIETY OF ST. VINCENT DE PAUL COUNCIL OF UPPER PINELLAS COUNTY, INC., a
not-for-profit corporation, having its principal place of business at 1015 Cleveland Street, Clearwater,
Florida 33755 (herein "Seller"), and the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida, 112 South
Osceola Avenue, Clearwater, Florida 33756 (herein "Buyer" or "CRA"), (collectively "Parties") hereby
agree that the Seller shall sell and Buyer shall buy the following real property, including all
improvements thereon and fixtures attached thereto ("Property"), upon the following terms and
conditions.
1. PROPERTY DESCRIPTION Pinellas County Parcel I. D. 15-29-15-53928-005-0010 and 15-29-
15-54450-002-0090
LEGAL DESCRIPTION: SARAH MCMULLEN’S SUBDIVISION, All of Block 5 north of Park Street,
LESS the east 50 feet and LESS road on the north, according to the plat thereof as recorded in Plat
Book 1, Page 41, Public Records of Pinellas County, Florida; together with MAGNOLIA PARK
SUBDIVISION, Block 2, Lots 9 and 10, LESS road on the north, according to the plat thereof as
recorded in Plat Book 3, Page 43, Public Records of Pinellas County, Florida.
2. FULL PURCHASE PRICE ...........................................………………….. $ 587,000.00
3. MANNER OF PAYMENT: City of Clearwater check in U.S. funds
at time of closing ...............................…….... $ 587,000.00
4. PURCHASE PRICE
The Full Purchase Price as established herein has been reached through CRA representative
discussions and negotiations with Seller and Seller real estate representatives, upon and following due
consideration of that certain real estate appraisal dated March 15, 2010 as developed for Seller by
James M. Millspaugh, MAI; that valued the Property at $600,000; and that certain real estate appraisal
dated June 2, 2010 as developed for Buyer by K. Mitchell Caldwell, MAI, that valued the Property at
$575,000.
5. TIME FOR ACCEPTANCE
Following execution of this Contract by Seller, the price, terms and conditions as contained herein
shall remain unchanged and be held unconditionally open for a period of 45 days following delivery in
duplicate original to the CRA for acceptance and approval, or rejection, by action of the CRA Board
of Directors (“Board”). If this Contract is accepted and approved by the Board, it will be executed by
duly authorized CRA officials (the “Effective Date”) and delivered to Seller within 10 business days
thereafter. If the Board rejects this contract upon initial presentation, this contract shall be null and
void in all respects and the Seller shall be so informed in writing within 5 business days thereafter. A
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facsimile or electronically transmitted copy of this Contract and any signatures hereon shall be
considered for all purposes as an original.
6. TITLE
Seller warrants legal capacity to and shall convey marketable title to the Property by Statutory Warranty
Deed, subject only to matters contained in Paragraph 7 acceptable to Buyer. Otherwise title shall be
free of liens, easements and encumbrances of record or known to Seller, but subject to property taxes
for the year of closing; covenants, restrictions and public utility easements of record; and no others
provided there exists at closing no violation of the foregoing and none of them prevents Buyer's
intended use of the Property. Seller warrants and represents that there is ingress and egress to the
Property sufficient for the Buyer’s intended use to hold for redevelopment.
7. TITLE EVIDENCE
Seller shall, at Seller expense and within 15 days prior to closing date obtain a title insurance
commitment issued by a licensed Florida title insurance agent agreeing to liens, encumbrances,
exceptions or qualifications set forth in this Contract, and those which shall be discharged by Seller at
or before closing. Seller shall convey a marketable title subject only to liens, encumbrances, exceptions
or qualifications set forth in this Contract. Marketable title shall be determined according to applicable
Title Standards adopted by The Florida Bar and in accordance with law. Buyer shall have 5 days from
receiving evidence of title to examine it. If title is found defective, Buyer shall, within 3 days thereafter,
notify Seller in writing specifying defect(s). If the defect(s) render title unmarketable, Seller will have
120 days from receipt of notice within which to remove the defect(s), failing which Buyer shall have the
option of either accepting the title as it then is or withdrawing from this Contract. Seller will, if title is
found unmarketable, make diligent effort to correct defect(s) in title within the time provided therefor,
including the bringing of necessary suits.
8. SURVEY
Buyer, at Buyer's option and expense, within time allowed to deliver evidence of title and to examine
same, may have Real Property surveyed and certified to the Buyer, Seller and closing agent by a
registered Florida land surveyor of Buyer’s choice. If survey shows any encroachment on Real
Property, or that improvements located on Real Property encroach on setback lines, easements, lands
of others, or violate any restrictions, contract covenants or applicable governmental regulation, the
same shall constitute a title defect. The survey shall be performed to minimum technical standards of
the Florida Administrative Code and may include a description of the property under the Florida
Coordinate System as defined in Chapter 177, Florida Statutes.
9. CLOSING PLACE AND DATE
Seller shall designate closing agent and this transaction shall be closed at a mutually agreed time in the
offices of the designated closing agent in Pinellas County, Florida, on or before sixty (60) days
following the Effective Date as set forth in paragraph 5 above, unless extended by other provisions
of this contract. If either party is unable to comply with any provision of this contract within the time
allowed, and be prepared to close as set forth above, after making all reasonable and diligent efforts to
comply, then upon giving written notice to the other party, time of closing may be extended up to 60
days without effect upon any other term, covenant or condition contained in this contract.
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10. CLOSING DOCUMENTS
Seller shall furnish closing statements for the respective parties, provide and deliver the deed, bill of
sale, mechanic's lien affidavit, tenant and mortgage release estoppel letters, and corrective instruments
as may be applicable. If Seller is a corporation, Seller shall deliver a resolution of its Board of Directors
authorizing the sale and delivery of the deed and certification by the corporate Secretary certifying the
resolution and setting forth facts showing the conveyance conforms to the requirements of local law.
11. CLOSING EXPENSES
Seller, unless this transaction is exempt under Chapter 201.24, Florida Statutes, shall pay documentary
stamps on the deed. Seller shall pay the costs of recording any corrective instruments. Buyer shall pay
for recordation of the deed.
12. PRORATIONS; CREDITS
Property taxes and any governmental assessments accruing against the Property shall be paid by
Seller and prorated through the day before closing. Closing agent shall collect all ad valorem taxes
uncollected but due through day prior to closing and deliver same to the Pinellas County Tax Collector
with notification to thereafter exempt the Property from taxation as provided in Chapter 196.012(6),
Florida Statutes. If the amount of taxes and assessments for the current year cannot be ascertained,
rates for the previous year shall be used with due allowance being made for improvements and
exemptions. Assessments for any improvements that are substantially complete at time of closing shall
be paid in full by Seller.
13. OCCUPANCY
Seller warrants and shall validate and affirm at or prior to closing that the property has no tenancies
or others in occupancy other than the Seller.
14. PROPERTY CONDITION
Seller shall deliver the property to Buyer at time of closing in its present “as is” condition, subject to
Buyer Right of Inspection as provided hereafter, ordinary wear and tear excepted, and shall maintain
the landscaping and grounds in a comparable condition as to the date of Seller execution hereof.
Buyer may, at Buyer option and expense within 45 days following the Effective Date (“Inspection
Period”), conduct inspections, tests, environmental and any other investigations of the Property Buyer
deems necessary to determine suitability for Buyer’s intended use for future redevelopment. Seller
shall grant reasonable access to the Property to Buyer, its employees, agents, contractors and assigns
for the purposes of conducting the inspections as provided herein; however, that all such persons
entering upon the Property and conducting the inspections and investigations shall do so at their own
risk. Seller will, upon reasonable notice, provide utilities services as may be required for Buyer’s
inspections and investigations. Buyer shall not engage in any activity that could result in mechanics lien
being filed against the Property without Seller’s prior written consent. Buyer may terminate this contract
by written notice to Seller prior to expiration of the Inspection Period if the inspections and/or
investigations reveal conditions which are reasonably unsatisfactory to Buyer. If this transaction does
not close, Buyer agrees, at Buyer expense, to repair all damages to the Property resulting from the
inspections and investigations, and return the Property to Seller in its present condition.
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15. WALK-THROUGH INSPECTION
At a time mutually agreeable between the parties, but not later than the day prior to closing, Buyer may
conduct a final “walk-through” inspection of the Property to determine compliance with any Seller
obligations under Paragraphs 13 and 14 hereof. No new issues may be raised as a result of the walk-
through.
16. RISK OF LOSS
If the property is damaged by fire or other casualty before closing, and the cost of restoration does not
exceed 10% of the appraised valuation of the Property so damaged, cost of restoration shall be an
obligation of the Seller and closing shall proceed pursuant to the terms of this contract with restoration
costs credited to Buyer at closing. If the cost of restoration exceeds 10% of the appraised valuation of
the improvements so damaged, Buyer shall have the option of either taking the Property “as is”;
together with either 10% of any insurance proceeds payable by virtue of such loss or damage, or of
cancelling this contract.
17. PROCEEDS OF SALE; CLOSING PROCEDURE
The deed shall be recorded upon clearance of funds. Proceeds of sale shall be held in escrow by
Seller's attorney or by such other mutually acceptable escrow agent for a period of not longer than 5
days from and after closing, during which time evidence of title shall be continued at Buyer's expense to
show title in Buyer, without any encumbrances or change which would render Seller's title unmarketable
from the date of the last title evidence. If Seller's title is rendered unmarketable through no fault of the
Buyer, Buyer shall, within the 5-day period, notify the Seller in writing of the defect and Seller shall have
30 days from the date of receipt of such notification to cure the defect. If Seller fails to timely cure the
defect, all funds paid by or on behalf of the Buyer shall, upon written demand made by Buyer and within
5 days after demand, be returned to Buyer and simultaneously with such repayment, Buyer shall return
Personalty and vacate Real Property and reconvey it to Seller by special warranty deed. If Buyer fails
to make timely demand for refund, Buyer shall take title "as is", waiving all rights against Seller as to
any intervening defect except as may be available to Buyer by virtue of warranties contained in the
deed. The escrow and closing procedure required by this provision may be waived if title agent insures
adverse matters pursuant to Section 627.7841, F.S. (2009), as amended.
18. DEFAULT
If this transaction is not closed due to any default or failure on the part of the Seller, other than to make
the title marketable after diligent effort, Buyer may seek specific performance or unilaterally cancel this
agreement upon giving written notice to Seller. If this transaction is not closed due to any default or
failure on the part of the Buyer, Seller may seek specific performance. If a Broker is owed a brokerage
fee regarding this transaction, the defaulting party shall be liable for such fee.
19. SELLER WARRANTIES
Seller warrants that there are no facts known to Seller that would materially effect the value of the
Property, or which would be detrimental to the Property, or which would effect Buyer's desire to
purchase the property except as follows: (Specify known defects. If none are known, write “NONE”.
If no entry, it will be deemed that Seller has entered “NONE”)
_________________________________________________________________________________
Attachment number 2
Page 12 of 16
Item # 2
U:\Leases\St Vincent De Paul 0810. doc Page 13 of 16
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
Buyer shall have fifteen (30) days following the Effective Date to investigate said matters as disclosed
by the Seller, and shall notify Seller in writing whether Buyer will close on this contract notwithstanding
said matters, or whether Buyer shall elect to cancel this contract. If Buyer fails to so notify Seller within
said time period, Buyer shall be deemed to have waived any objection to the disclosed matters and
shall have the obligation to close on the contract.
20. RADON GAS NOTIFICATION
In accordance with provisions of Section 404.056(5), Florida Statutes (2009), as amended, Buyer is
hereby informed as follows:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons
who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your County public health unit.
21. CONTRACT NOT RECORDABLE; PERSONS BOUND
Neither this contract nor any notice of it shall be recorded in any public records. This contract shall bind
and inure to the benefit of the parties and their successors in interest. Whenever the context permits,
singular shall include plural and one gender shall include all.
22. NOTICE
All notices provided for herein shall be deemed to have been duly given if and when deposited in the
United States Mail, properly stamped and addressed to the respective party to be notified, including the
parties to this contact, the parties attorneys, escrow agent, inspectors, contractors and all others who
will in any way act at the behest of the parties to satisfy all terms and conditions of this contract.
23. ASSIGNABILITY; PERSONS BOUND
This contract is not assignable. The terms "Buyer", "Seller", and "Broker" (if any) may be singular or
plural. This Contract is binding upon Buyer, Seller, and their heirs, personal representatives, successors
and assigns (if assignment is permitted).
24. BROKER REPRESENTATION
Seller is represented in this transaction by Colliers Arnold Clearwater (“Broker”) and shall be
responsible for payment of any fees and commissions due and payable to Broker. Buyer represents
that Buyer is not represented by any Broker in this transaction and that Buyer is not obligated for any
fees and commissions to any real estate Broker or agent in connection with this Contract.
Attachment number 2
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25. ATTORNEY FEES; COSTS
Each party shall be responsible for its own attorney’s fees in connection with this Contract, including
any litigation arising out of this contract.
26. TYPEWRITTEN OR HANDWRITTEN PROVISIONS
Typewritten or handwritten provisions shall control all printed provisions of contract in conflict with them.
27. EFFECT OF PARTIAL INVALIDITY
The invalidity of any provision of this contract will not and shall not be deemed to affect the validity of
any other provision. In the event that any provision of this contract is held to be invalid, the parties
agree that the remaining provisions shall be deemed to be in full force and effect as if they had been
executed by both parties subsequent to the expungement of the invalid provision.
28. GOVERNING LAW
It is agreed by and between the parties hereto that this contract shall be governed by, construed, and
enforced in accordance with the laws of the State of Florida.
29. COUNTERPARTS; FACSIMILE COPY
This contract may be executed in two or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one instrument. A facsimile copy of this contract, including any
addendum, attachments and any written modifications hereof, and any initials or signature thereon shall
be deemed an original.
30. BUSINESS LEASE CONTRACT ADDENDUM
It is agreed by and between the parties that execution, implementation and fulfillment of the terms and
provisions of that certain Business Lease Contract respective to the subject Property, an exact copy of
which is appended hereto as EXHIBIT “A”, is integral, appurtenant to and a part of this Contract.
31. ENTIRE AGREEMENT
Upon execution by Seller and Buyer, this contract shall constitute the entire agreement between the
parties, shall supersede any and all prior and contemporaneous written and oral promises,
representations or conditions in respect thereto. All prior negotiations, agreements, memoranda and
writings shall be merged herein. Any changes to be made in this agreement shall only be valid when
expressed in writing, acknowledged by the parties and incorporated herein or attached hereto.
Attachment number 2
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EXECUTED this _______ day of ________________________, 2010 by Seller.
SOCIETY OF ST. VINCENT DE PAUL OF
UPPER PINELLAS COUNTY, INC.
By: ______________________________________
Patrick J. Farmer, President
APPROVED BY BUYER & EFFECTIVE this _______ day of __________________________, 2010.
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER,
FLORIDA
By: ___________________________________
Frank V. Hibbard, its CHAIRMAN
____________________________________
Rod Irwin, its EXECUTIVE DIRECTOR
Approved as to form: Attest:
___________________________________ _________________________________
Laura Mahony Rosemarie Call
Assistant City Attorney City Clerk
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EXHIBIT “B”
Lessee agrees to provide at Lessee sole cost and expense the following policy or policies of
insurance through firms authorized to provide such insurance within the State of Florida. If Lessee
presently maintains policies of insurance in amounts and coverages equal to or exceeding the
following, Lessee, upon Lessor approval and acceptance of such policies, and being designated as
“Additional Insured” under such policies, shall maintain such policies in force throughout the initial
term and extended term, if any, of the subject lease:
Property Insurance: Lessee shall procure and maintain for the full term of the Lease, Property
Insurance to cover any loss resulting from destruction or damage to real property. The policy of
insurance shall be an “All Risk” type, excluding Flood Insurance in acknowledgment that lease
premises are largely outside of a 100-year storm event flood zone designation per FEMA Rate Map
Community Panel No. 12103C0108H (Rev. 5/17/2005). Such policy of property insurance shall be
written on a 100% replacement value basis and Lessee may elect a deductible amount up to but not
more than $1,000. Lessor shall be included and identified as Additional Insured under the policy and
on the Certificate of Insurance.
Liability Insurance: Lessee shall procure and maintain for the life of the Lease, General Liability
Insurance and Auto Liability Insurance, each in an amount of $1,000,000. These coverages shall be
on an “Occurrence” basis. The Lessor shall be included and identified as an Additional Insured under
the policy and on the Certificate of Insurance.
The insurance coverages and conditions afforded by these policies shall not be suspended, voided,
cancelled or modified except after thirty (30) days prior written notice by certified mail, return receipt
requested, has been given to the City’s Risk Management Office.
All insurance policies required within this provision shall provide full coverage from the first dollar of
exposure unless stipulated. No deductibles will be accepted other than as stipulated herein.
Certificates of Insurance Meeting the specific required insurance provisions specified in this Lease
shall be forwarded to the City’s Risk Management Office and approved prior to Lease
commencement. After review, the Certificate will be filed as part of the official Lease file.
Attachment number 2
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Item # 2
Attachment number 3
Page 1 of 1
Item # 2
Community Redevelopment
Agency Agenda
Council Chambers - City
Hall
Meeting Date:9/20/2010
SUBJECT / RECOMMENDATION:
Approve a Development Agreement between the CRA and Mainstreet Clearwater Development LLC of Clearwater, Florida
concerning the Peter Gillham’s Nutrition Center, retail and restaurant project, 422-424 Cleveland Street, delineating the terms and
conditions for the provision of certain economic assistance by the CRA.
SUMMARY:
Mainstreet Clearwater Development LLC is developing the Peter Gillham’s Nutrition Center retail health food store and healthy
restaurant project located at 422-424 Cleveland Street. The project is a build out of the existing structure, with outdoor dining, to
create a 3900 square foot health food store and restaurant, a significant expansion from the current 1800 square foot operation.
The Development Agreement is to secure economic assistance through the Community Redevelopment Agency (CRA) to increase
the economic feasibility of a project which supports the implementation of the City of Clearwater’s District Vision for the
revitalization of the CRA area, and to further the implementation of the Downtown Redevelopment Plan by the development,
construction and operation of the Project to enhance the quality of life, increase employment and improve the aesthetic and useful
enjoyment of the downtown.
This agreement provides CRA funding of a $50,000 restaurant build out loan-to-grant generally mirroring the DDB Restaurant
Relocation Program, which provides for incentive reimbursement funding of eligible restaurant build out expenses, up to a
maximum of $50,000. Since the project involves the relocation and expansion of an existing business within the Cleveland Street
District, rather than a new business coming to the District, the DDB Restaurant Relocation grant is not available.
Staff supports CRA participation in this project for several reasons. First, Peter Gillham’s is an established, successful business in
the District that indicates the likelihood of continued successful operation at the new location. Second, Peter Gillham’s
contemplates a significant expansion of their operation to leverage their regional leadership position in the gluten-free market –an
expanding sector of the food industry-- with an expanded retail and restaurant operation consistent with the CRA recruitment
strategy. Third, the cost of the tenant improvements necessary to install a kitchen and associated facilities are significant and
unlikely to be affordable without incentive financing. Finally, the ability and willingness of the owner to fund and move forward
with the project at this time of economic downturn, with the assistance delineated above, is very helpful in maintaining downtown's
redevelopment momentum.
Facilitation of this project will keep a proven business in the District and further the objective of expanding quality restaurant and
retail space on Cleveland Street.
The incentive is to be structured as a five-year "forgivable" loan, secured with a performance mortgage, with 20 % forgiven
annually as long as the property continues to be used as a full-service restaurant. If it ceases to be so operated during the five-year
period, the owner will have to reimburse the CRA for the outstanding balance. Similarly, if the property was sold during the five-
year period, the outstanding balance will become due and payable to the CRA, unless the CRA agreed to the assumption of the
development agreement by the new owner. The source of funds is the CRA Retail Attraction /Assistance Project Account 94852.
Type:Other
Current Year Budget?:No Budget Adjustment:None
Budget Adjustment Comments:
Current Year Cost:Annual Operating Cost:
Not to Exceed:$50,000 Total Cost:
For Fiscal Year: to
Appropration Code Amount Appropriation Comment
Cover Memo
Item # 3
388-94852 $50,000
Review Approval:1) Financial Services 2) Office of Management and Budget 3) Clerk 4) Legal 5) Clerk 6) City Manager 7) Clerk
Cover Memo
Item # 3
DEVELOPMENT AGREEMENT
(Mainstreet Clearwater , LLC “Peter Gillham’s Nutritional Center, LLC”café/grocery)
This Development Agreement ("Agreement") is made as of this __________ day
of July, 2010, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY
OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida
created pursuant to Part III, Chapter 163, Florida Statutes ("Agency"), and Mainstreet
Clearwater Development, LLC, a Florida limited liability company ("Developer").
W I T N E S S E T H:
WHEREAS, the Agency and Developer have entered into and concluded negotiations of
a development agreement pursuant to Developer’s request for specific assistance as outlined
herein, pertaining to and setting forth the terms and conditions for the development of certain
parcels located at 422-424 Cleveland St, Clearwater, Florida, and legally described as set forth
in Exhibit A, to be operated by ”Peter Gillham’s Nutritional Center, LLC ” as an Organic Cafe
and Gourmet Organic Grocery in the community redevelopment area of the City;
WHEREAS, at a duly called public meeting on________ , 2010, the Agency approved
this Agreement and authorized and directed its execution by the appropriate officials of the
Agency;
WHEREAS, the Developer has approved this Agreement and has authorized and
directed certain individuals to execute this Agreement on behalf of Developer; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.01. Definitions. The terms defined in this Article I shall have the following
meanings, except as herein otherwise expressly provided:
(1) "Act" means the Constitution of the State of Florida; Section 163.01, Florida
Statutes, Part III, Chapter 163, Florida Statutes; Chapter 166, Florida Statutes, other applicable
provisions of law, and ordinances and resolutions of the City and the Agency implementing
them.
(2) "Agency" means the Community Redevelopment Agency of the City, as created
by Resolution No. 81-68 of the City, adopted by the City Council on August 6, 1981, including
any amendments thereto, and any successors or assigns thereto.
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(3) "Agreement" means this Development Agreement, including any Exhibits, and
any amendments hereto or thereto.
(4) "Agreement Expiration Certificate" means the instrument executed by the parties
hereto as provided in Section 11.19 certifying that all obligations of the parties hereto have been
satisfied and this Agreement has expired in accordance with its terms, the form of which is
attached hereto as Exhibit E.
(5) "Agreement Termination Certificate" means the instrument executed by the
parties hereto as provided in Section 9.06 stating that this Agreement has been terminated prior
to its Expiration Date as provided in Section 9.05, the form of which is attached hereto as
Exhibit F.
(6) "Area" means the area located within the corporate limits of the City having
conditions of slum and blight (as those conditions are defined in the Act) as found by the City
Council in Resolution No. 81-67, adopted by the City Council on August 6, 1981, and as
amended by Resolution No. 03-22, adopted by the City Council on May 1, 2003.
(7) "Authorized Representative" means the person or persons designated and
appointed from time to time as such by the Developer or the Agency, respectively, pursuant to
Section 2.04.
(8) "Building Permit" means, for the “Peter Gillham’s Nutritional Center, LLC”
Organic Cafe and Gourmet Organic Grocery (“Café/Grocery”)Project to be constructed on the
Site, a permit issued by the City authorizing, allowing and permitting the commencement,
prosecution and completion of construction to the extent provided in said permit.
(9) "City" means the City of Clearwater, Florida, a Florida municipal corporation, and
any successors or assigns thereto.
(10) "City Council" means the governing body of the City, by whatever name known or
however constituted from time to time.
(112) "Commencement Date" means the date of issuance of the first Building Permit
for the “Peter Gillham’s Nutritional Center, LLC ” Café/Grocery Project.
(12) "Completion Date" means the date on which construction of the Project is
substantially complete as evidenced by a Completion Certificate.
(13) "Construction Financing" means the funds provided by the Construction Lender to
the Developer during the term of this Agreement to pay the cost of developing and constructing
the “Peter Gillham’s Nutritional Center, LLC” Cafe/Grocery Project, or any portion thereof, on the
Project Site, including, financing costs, "soft costs," overhead, and the design, construction and
equipping of the Project.
(14) "Construction Lender" means any person or persons providing the Construction
Financing or any portion thereof.
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(15) "Contractor" means one or more individuals or firms constituting a general
contractor or other type of construction contractor properly licensed by the State of Florida or
other appropriate jurisdiction to the extent required by applicable law, authorized to perform
construction contractor services in the State of Florida, registered with the City as required by
applicable law, bonded and insured to the extent required by applicable law and this Agreement,
including the Developer or any affiliates of the Developer.
(16) "Developer" means Mainstreet Clearwater Development, LLC, a Florida limited
liability company, and any successors and assigns thereof, including any entity, partnership,
joint venture, or other person in which Mainstreet Clearwater Development, LLC, is a general
partner or principal, but not including any entity, partnership, joint venture, or other person in
which Mainstreet Clearwater Development, LLC is a general partner or principal which is not
undertaking or participating in any development of the “Peter Gillham’s Nutritional Center, LLC”
Café/Grocery Project, or any part thereof.
(17) "Effective Date" means the date determined in accordance with Section 11.20
when the Memorandum of Development Agreement is recorded and this Agreement becomes
effective.
(18) "Exhibits" means those agreements, diagrams, drawings, specifications,
instruments, forms of instruments, and other documents attached hereto and designated as
exhibits to, and incorporated in and made a part of, this Agreement.
(19) "Expiration Date" means the date on which this Agreement expires, as evidenced
by the Agreement Expiration Certificate being recorded in the public records of Pinellas County,
Florida, as provided in Section 11.19 hereof.
(20) "Impact Fees" means those fees and charges levied and imposed by the City,
Pinellas County and any other governmental entity on projects located on the Site for certain
facilities and services impacted by development such as the Project but for the purposes of this
Development Agreement, shall not include the fees or costs pursuant to the Public Art and
Design Program (section 3-2401 through 3.2406 of the Clearwater Community Development
Code)
(21) "Permits" means all zoning, variances, approvals and consents required to be
granted, awarded, issued, or given by any governmental authority in order for construction of
the Project, or any part thereof, to commence, continue, be completed or allow occupancy and
use, but does not include the Building Permit.
(22) "Plan" means the community redevelopment plan for the Area, including the Site,
as adopted by the City Council on September 18, 2003, by enactment of its Ordinance No. 7153-
03, and including any amendments to the Plan.
(23) "Project" means the “Peter Gillham’s Nutritional Center, LLC ” Organic Café and
Gourmet Organic Grocery Project. More specifically, the Project is the internal build out for an
approximately 3,668 square foot café/grocery, to be leased by Developer to a tenant, Peter
Gillham Nutrition Center, LLC., who will operate an organic café and gourmet grocery.
Attachment number 1
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(24) “Project Plans and Specifications” means the plans and specifications pertaining
to the construction, installation and equipping of the “Peter Gillham’s Nutritional Center, LLC”
Cafe/Grocery Project, including the schedule for completing the Project, consisting of the plans
and specifications.
(25) "Project Professionals" means any architects, attorneys, brokers, engineers,
consultants, planners, construction managers or any other persons, or combination thereof,
retained or employed by the Developer in connection with the planning, design, construction,
permit applications, completion and opening of the Project, but does not include the Developer.
(26) "Proposal" means the proposal for redevelopment of the Site, per the Site Plan
submitted by Developer.
.
(27) "Site" means that certain property with a street address of 422-424 Cleveland
Street, located in Clearwater, Florida, as more particularly described on Exhibit A attached
hereto, on which the “Peter Gillham’s Nutritional Center, LLC” café/grocery Project is to be
located.
(28) "Site Plan" means a floor plan that depicts the internal build out of the
cafe/grocery, the initial version of which is attached hereto as Exhibit B.
(29) "Termination Date" means the date on which this Agreement is terminated by
any party hereto as provided in Section 9.05, and as evidenced by the Agreement Termination
Certificate.
(30) "Unavoidable Delay" means those events constituting excuse from timely
performance by a party hereto from any of its obligations hereunder, as such events are defined
in and subject to the conditions described in Article 10 hereof.
(31) "“Peter Gillham’s Nutritional Center, LLC” Cafe/Grocery Project means the
development consisting of the internal build out of an approximately 3,668 square foot
cafe/grocery; with access to 4 private parking spaces immediately adjacent, and others located
nearby, to be located on the Site as contemplated by the Proposal and this Agreement and
constructed substantially in accordance with the Plans and Specifications.
1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Unless the context
shall otherwise indicate, the singular shall include the plural as well as the singular number, and
the word "person" shall include corporations and associations, including public bodies, as well
as natural persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and
other equivalent words refer to this Agreement and not solely to the particular portion thereof in
which any such word is used.
1.03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes
(2009), as amended from time to time.
ARTICLE 2. PURPOSE; PROPOSAL
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Item # 3
5
2.01. Intent; Purpose of Agreement.
(a) The purpose of this Agreement is to (i) secure economic assistance through the
Agency which supports the implementation of the City of Clearwater’s "District Vision" for the
revitalization of the Downtown Core; and (ii) to further the implementation of the Plan by the
development and construction and operation of the Project thereon in accordance with the
Project Plans and Specifications, all to enhance the quality of life, increase employment and
improve the aesthetic and useful enjoyment of the Area through the eradication of conditions of
blight, all in accordance with and in furtherance of the Plan and as authorized by and in
accordance with the Act.
(b) (1) The Site is to be redeveloped according to Project Plans and
Specifications for use as an approximately 3,668 square foot cafe/grocery; with access to 4
private parking spaces immediately adjacent, and others located nearby. Developer commits to
maintain the operation of the Project as a cafe/grocery for a period of not less than 5 years.
(2) As provided in this Agreement, the Agency shall undertake certain public
actions pursuant to the Act and as implementation of the Plan, and provide assistance in
obtaining such approvals by governmental authorities as are necessary for development of the
Project.
(c) As provided in this Agreement, the Developer shall carry out the redevelopment
of the Site by obtaining approvals by governmental authorities necessary for development of the
Project, and constructing various private improvements on the Site.
2.02. Developer's Proposal.
(a) The Proposal for the redevelopment of the Site, specifically including the design,
construction, equipping, completion and use of the Project, and each component thereof, is
hereby found by the Agency and acknowledged by the Developer: (1) to be consistent with and
in furtherance of the objectives of the Plan, (2) to conform to the provisions of the Act, (3) to be
in the best interests of the citizens of the City, (4) to further the purposes and objectives of the
Agency, and (5) to further the public purpose of eradicating conditions of blight in the Area.
The parties recognize and agree that during the process of review and approval provided for in
the Agreement the design of the Project may be subject to change and modification as may be
either agreed to by the parties or required as provided herein or by the appropriate regulatory
authority, and should any changes be necessary or desirable the parties agree that they will act
expeditiously and reasonably in reviewing and approving or disapproving any changes or
modifications to the Project.
(b) Based upon and as a result of the findings set forth in subsection (a) above, the
Proposal, including such changes and revisions as are provided by this Agreement, is hereby
affirmed by the Developer and approved and accepted by the Agency.
2.03. Cooperation of the Parties. The parties hereto recognize that the successful
development of the Project and each component thereof is dependent upon continued
cooperation of the parties hereto, and each agrees that it shall act in a reasonable manner
hereunder, provide the other party with complete and updated information from time to time,
with respect to the conditions such party is responsible for satisfying hereunder and make its
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good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this
Agreement are carried out to the full extent contemplated hereby and the Project is designed,
constructed, equipped, completed and operated as provided herein.
2.04. Authorized Representative.
(a) Each party shall designate an Authorized Representative to act on its behalf to
the extent of the grant of any authority to such representative. Written notice of the designation
of such a representative (and any subsequent change in the Authorized Representative) shall
be given by the designating party to the other party in writing in accordance with the procedure
set forth in Section 11.03 hereof.
(b) Except as otherwise expressly provided in this Agreement, whenever approval or
action by the Developer or the Agency is required by this Agreement, such action or approval
may, in the discretion of the party considering such approval or action, be taken or given by the
Authorized Representative thereof. A party to this Agreement may rely upon the representation
of the other party's Authorized Representative that such person has the requisite authority to
give the approval or take the action being done by that Authorized Representative. A party may
not later deny that its Authorized Representative had the authority represented to and relied
upon by the other party or revoke or deny any action taken by such Authorized Representative
which was relied upon by the other party.
(c) The Developer does hereby notify the Agency that its initial Authorized
Representative for the Project is Kevin Burke of Mainstreet Clearwater Development, LLC.
(d) The Agency does hereby notify the Developer that its initial Authorized
Representative is Rod Irwin, Executive Director of the CRA.
ARTICLE 3. LAND USE REGULATION.
3.01. 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 permits development of the Project.
3.02. Redevelopment Plan. The Agency represents to the Developer and the
Developer acknowledges that as of the Effective Date, the Site is in the Downtown Core District
and the provisions of the Plan pertaining to the Site were consistent with the “Peter Gillham’s
Nutritional Center, LLC” Cafe/Grocery Project as contemplated by the Proposal and this
Agreement.
3.03. Permits.
(a) The Developer shall cause the tenant’s contractor to prepare and submit to the
appropriate governmental authorities, including the City, the applications for each and every
Building Permit and any and all necessary Permits for the Project. The Developer shall bear all
costs of preparing such applications, applying for and obtaining such permits including
applicable application, inspection, regulatory and Impact Fees or charges pertaining to the
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Project, including, but not limited to, any such permit, review, application, inspection, regulatory
or Impact Fees except as otherwise provided in Article 6.
(b) The Agency shall cooperate with the Developer in obtaining all necessary
Permits and the Building Permits required for the construction and completion of the Project.
(c) The Agency's duties, obligations, or responsibilities under any section of this
Agreement, specifically including but not limited to this Section 3.04 do not affect the Agency's
or the City's right, duty, obligation, authority and power to act in its governmental or regulatory
capacity in accordance with applicable laws, ordinances, codes or other building or project
regulation.
(d) Notwithstanding any other provisions of this Agreement, any required permitting,
licensing or other regulatory approvals by the Agency or the City shall be subject to the
established procedures and requirements of the Agency or the City with respect to review and
permitting of a project of a similar or comparable nature, size and scope. In no event shall the
Agency or the City, due to any provision of this Agreement, be obligated to take any action
concerning regulatory approvals except through its established processes and in accordance
with applicable provisions of law.
3.04. Not a Development Order or Permit. The parties do hereby acknowledge, agree
and represent that this Agreement is not intended to be and should not be construed or deemed
to be a "development order" or "development permit" within the meaning of those terms in
Section 163.3164, Florida Statutes.
3.05. Permitted Uses.
(a) The Project shall consist of an approximately 3,668 square foot cafe/grocery and
associated amenities.
(b) The Project shall have access to 4 adjacent private parking spaces and others
located nearby.
ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS.
4.01. Site Plan.
(a) The Developer has prepared a Site Plan, a copy of which is attached hereto as
Exhibit B, which contemplates development of the Project consistent with this Agreement. The
Developer agrees that during the term of this Agreement, any material changes to the Site Plan
or any subsequent versions of the Site Plan will be submitted to the City for review, if such
review is required by the Land Development Code, and Agency for approval, which Approval
shall not be unreasonably withheld or delayed.
ARTICLE 5. CONSTRUCTION OF THE PROJECT.
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5.01. Site Clearance. Permits issued by the City for pre-construction activities on the
Site, including site clearance, utility relocation, and interior demolition, shall not be considered a
Building Permit for purposes of this Agreement.
5.02. Construction of the Project.
(a) (1) The Developer shall construct the Project on the Site substantially in
accordance with the Project Plans and Specifications therefor. Subject to Unavoidable Delay
and the terms and conditions in this Agreement, the Developer shall submit plans for permit
approval by no later than October 15, 2010.
(2) For purposes of this Section 5.02, "commence construction" of the Project
means commencement of meaningful physical development of that part of the Project as
authorized by the Building Permit therefor which is continued and prosecuted with reasonable
diligence toward and with the objective of completion of the Project.
(b) (1) After the Commencement Date, the Developer shall continue, pursue and
prosecute the construction of the Project with reasonable diligence to completion by the
Completion Date and shall not at any time actually or effectively have abandoned (or its
Contractor having actually or effectively abandoned) the Site. For purposes of this subsection
(b), "abandoned" means to have ceased any construction work which effectively advances the
construction of the Project toward completion. Subject to Unavoidable Delay and the terms and
conditions in this Agreement, the Project shall be completed by no later than January 15, 2011.
(2) All obligations of the Developer with respect to commencement,
continuation and completion of construction of the Project shall be subject to delays and
extensions from time to time for Unavoidable Delay. The Developer shall not be deemed to be
in default of this Agreement to the extent construction or completion of the Project, or any part
thereof, is not complete by reason of Unavoidable Delay.
(c) For purposes of this Section 5.02, "completion," "complete," "substantially
complete" or "substantial completion" means, with respect to construction of the retail space of
the Project, a Certificate of Occupancy for the cafe/grocery has been issued by the City.
(d) If the Agency believes adequate progress in the construction of the Project is not
being made, the Agency shall give notice to the Developer that adequate progress is apparently
not being made in the construction of the Project and to respond within ten (10) business days
thereafter as to why adequate progress is or is not being made toward completion of the
Project.
5.03. Project Alterations or Improvements. During the construction of the Project, the
Developer may, from time to time, minor make alterations and improvements, structural or
otherwise, to the Project as the Developer deems desirable and consistent with the Project
Plans and Specifications for the use contemplated by this Agreement; provided, however, that
prior to the commencement of any material alterations or improvements of sufficient size and
scope as to constitute a material change in the previously approved Project Plans and
Specifications, the Developer shall notify the Agency of such material change and may submit a
change, amendment or revision to the Project Plans and Specifications to the Agency for
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review. Any change to the façade improvements during or after construction must be approved
by the Agency prior to implementation. Nothing in this Section 5.03 is intended nor shall be
deemed to limit or restrict the exercise of governmental or regulatory powers or authority by the
City or any other governmental entity or to enlarge its regulatory authority.
5.04. Completion Certificate.
(a) (1) Upon the substantial completion of the construction of the Project in
accordance with the provisions of this Article 5, the Developer shall prepare and execute the
Completion Certificate, which shall then be delivered to the Agency. Upon receipt of the
certificate the Agency shall promptly and diligently proceed to determine if construction of the
Project has been completed substantially in accordance with the Project Plans and
Specifications and this Agreement. Upon making such a determination, the Agency shall
execute the certificate and return it to the Developer. The date of the Completion Certificate
shall be the date when all parties shall have executed said certificate.
(2) The Completion Certificate shall constitute a conclusive determination by
the parties hereto of the satisfaction and termination of the obligations of the Developer
hereunder to construct the Project; provided, however that nothing in this Section 5.04 shall be
a waiver of the rights, duties, obligations or responsibilities of the City or any other governmental
entity acting in its regulatory or governmental capacity or an approval of said construction for
purposes of the issuance of a certificate of occupancy for the Project. The remaining obligations
of the Developer, including but not limited to the obligation to operate the Project as a
cafe/grocery for of a period of not less than five years shall survive and are not affected by the
filling of the Completion Certificate.
(3) The parties agree that it is their intent that the review by the Agency for
purposes of the Completion Certificate determination pursuant to this Section 5.04 is not to be
an additional or duplicate inspection over and above that required for purposes of the Building
Permit, including the issuance of a certificate of occupancy. The Agency agrees that for
purposes of determining if the Project has been substantially completed in accordance with the
Project Plans and Specifications, the issuance of a certificate of occupancy for the Project shall
be a conclusive determination of substantial completion for purposes of this subsection (a) and,
if such certificate has been determined to have been issued, then the Agency agrees to execute
the Completion Certificate.
(b) (1) If the Agency shall refuse or fail to execute the Completion Certificate
after receipt of a request by the Developer to do so, then the Agency shall, within ten (10) days
after its receipt of such request, provide the Developer with a written statement setting forth in
reasonable detail the reason(s) why the Agency has not executed the Completion Certificate
and what must be done by the Developer to satisfy such objections so that the Agency would
sign the certificate. Upon the Developer satisfying the Agency's objections, then the Developer
shall submit a new request to the Agency for execution of the Completion Certificate and that
request shall be considered and acted upon in accordance with the procedures in paragraph
(a)(1) for the original request.
(c) The Completion Certificate shall be in a form sufficient to be recorded in the
public records of Pinellas County, Florida. After execution by the Agency, it shall be promptly
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returned to the Developer who shall record the certificate in the public records of Pinellas
County, Florida, and pay the cost of such recording.
5.05. Agency Not in Privity with Contractors. The Agency shall not be deemed to be in
privity of contract with any Contractor or provider of goods or services with respect to the
construction of any part of the Project.
5.06 Security for Developer’s Performance. In consideration of the advancements,
reimbursements and payments made by the Agency pursuant to Article 6 hereof, Developer
shall provide a Performance Mortgage to secure the funds so paid, in substantially the form as
set forth and attached hereto as Exhibit C. Before any funds are paid, the mortgage shall be in
place, securing a second lien position on the property so identified for Agency payments. This
obligation and the Performance Mortgage provided hereto shall survive termination as provided
in paragraph 9.05 and 9.06. Pursuant to the provisions of Section 6.02 herein, the Agency
shall cancel and release the Performance Mortgage, and the same shall be of no further force
and effect, at the earlier of (a) the end of the 5-year period contemplated therein during which
the property is maintained as a cafe/grocery or (b) the date on which repayment is made
pursuant to the provisions of Section 6.03.
ARTICLE 6. PAYMENTS BY AGENCY.
6.01 Restaurant Buildout Grant. The Agency shall reimburse Developer for
cafe/grocery buildout and/or permanent fixtures for the project in an amount not to exceed fifty-
thousand dollars ($50,000.00). Developer shall provide the Agency with documentation verifying
expenditures for the cafe/grocery buildout. Provided f urther, that the total amount of
reimbursement payments for said improvements shall not exceed the total amount of
expenditures made by Developer for the cafe/grocery buildout.
6.02 Repayment by Developer. All payments by the Agency pursuant to this article 6
are subject to repayment by Developer if Developer fails to maintain the property as a
cafe/grocery for a period of five years. If at any time during the first five years following the
issuance of the certificate of completion, the project fails to be operated as a cafe/grocery,
Developer shall repay to the Agency the amounts paid by the Agency pursuant to this article.
The amount to be repaid by the Developer shall be reduced by 20% for each year the
cafe/grocery is open and operating as provided herein. The Developer's obligation to repay the
incentives provided herein shall be secured by a performance mortgage as provided in section
5.06.
ARTICLE 7. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE DEVELOPER.
7.01. Representations and Warranties. The Developer represents and warrants to the
Agency that each of the following statements is currently true and accurate and agrees the
Agency may rely upon each of the following statements:
(a) The Developer is a Florida limited liability company duly organized and validly
existing under the laws of the State of Florida, has all requisite power and authority to carry on
its business as now conducted, to own or hold its properties and to enter into and perform its
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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 organization, or, any other agreement or instrument to which the
Developer is a party or by which the Developer may be bound.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Developer is or will be a party constitutes, or when entered into will
constitute, a legal, valid and binding obligation of the Developer enforceable against the
Developer in accordance with the terms thereof, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles in the event that equitable
remedies are involved.
(d) There are no pending or, to the knowledge of the Developer, threatened actions
or proceedings before any court or administrative agency against the Developer, or against any
controlling manager, member, employee or agent of the Developer, which question the validity
of this Agreement or any document contemplated hereunder, or which are likely in any case, or
in the aggregate, to materially adversely affect the consummation of the transactions
contemplated hereunder or the financial condition of the Developer.
(e) The Developer has filed or caused to be filed all federal, state, local and foreign
tax returns, if any, which were required to be filed by the Developer, and has paid, or caused to
be paid, all taxes shown to be due and payable on such returns or on any assessments levied
against the Developer.
(f) All financial information and other documentation, including that pertaining to the
Project or the Developer, delivered by the Developer to the City and the Agency, was, on the
date of delivery thereof, true and correct.
(g) The principal place of business and principal executive offices of the Developer
are 400 Cleveland Street, Suite 200, Clearwater, FL 33755 and, until the expiration or
termination of this Agreement, the Developer will keep original or duplicate records concerning
the Project (such as construction contracts, financing documents and corporate documents) and
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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 responsibilit y 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 Specifications and will not violate any laws, ordinances, rules, regulations,
orders, contracts or agreements that are or will be applicable thereto, including the Plan and the
Act.
(c) Subsequent to the Effective Date, the Developer shall maintain its financial
capability to develop, construct, complete and maintain the Project and shall promptly notify the
Agency of any event, condition, occurrence, or change in its financial condition which materially
adversely affects, or with the passage of time is likely to adversely affect, the Developer's
financial capability to successfully and completely develop, construct and complete the Project
as contemplated hereby.
(d) The Developer shall promptly cause to be filed when due all federal, state, local
and foreign tax returns required to be filed by it, and shall promptly pay when due any tax
required thereby so as to avoid an uncured tax lien against the Site.
(e) Subject to and except as permitted by Section 7.01, prior to the expiration or
termination of this Agreement, the Developer shall maintain its existence, will not dissolve or
substantially dissolve all of its assets and will not consolidate with or merge into another limited
liability company, corporation, limited partnership, or other entity without the prior approval of
the Agency, unless the Developer is the surviving entity or retains a controlling interest in the
consolidated or merged entity, in which case no consent by Agency shall be required. In any
event, prior to the expiration or termination of this Agreement, the Developer, will promptly notify
the Agency of any changes to the existence or form of the corporation of Developer.
(f) The Developer shall not sell, lease, transfer or otherwise dispose of all or
substantially all its assets without adequate consideration and will otherwise take no action
which shall have the effect, singularly or in the aggregate, of rendering Developer unable to
continue to observe and perform the covenants, agreements, and conditions hereof and the
performance of all other obligations required by this Agreement.
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(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 163,
Florida Statutes (known as the Community Redevelopment Act of 1969), has all requisite
corporate power and authority to carry on its business as now conducted and to perform its
obligations hereunder and under each document or instrument contemplated by this Agreement
to which it is or will be a party.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and delivered by, the Agency, and
neither the execution and delivery thereof, nor compliance with the terms and provisions thereof
or hereof (1) requires the approval and consent of any other party, except such as have been
duly obtained or as are specifically noted herein, (2) contravenes any existing law, judgment,
governmental rule, regulation or order applicable to or binding on the Agency, (3) contravenes
or results in any breach of, or default under or, other than as contemplated by this Agreement,
results in the creation of any lien or encumbrance upon any property of the Agency under any
indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances,
resolutions or, on the date of this Agreement, any other agreement or instrument to which the
Agency is a party, specifically including any covenants of any bonds, notes, or other forms of
indebtedness of the Agency outstanding on the Effective Date.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party constitute, or when entered into will
constitute, legal, valid and binding obligations of the Agency enforceable against the Agency in
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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.
(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
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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 the Developer. The Agency shall have no obligation to make the payments
provided in Article 6 herein, while developer is in default.
(2) Any attempt by the Agency to pursue any of the above referenced
remedies will not be deemed an exclusive election of remedy or waiver of the Agency's right to
pursue any other remedy to which either may be entitled.
(3) Any time periods or deadlines provided in this Agreement shall be tolled
or extended by the amount of time to cure any event of default hereunder if such event affects
the Developer's or Agency's ability to perform by such deadline or the expiration of such period.
(c) In the event of a termination of this Agreement pursuant to this Section 9.01, the
Agency shall not be obligated to make or to continue to make any payments provided for in
Article 6.
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9.02. Default by the Agency.
(a) Provided the Developer is not then in default under Section 9.01, there shall be
an "event of default" by the Agency under this Agreement in the event the Agency shall fail to
perform or comply with any material provision of this Agreement applicable to it; provided,
however, that suspension of or delay in performance by the Agency during any period in which
the Developer is in default of this Agreement as provided in Section 9.01 hereof will not
constitute an event of default by the Agency under this subsection (a).
(b) If an event of default by the Agency described in subsection (a) shall occur, the
Developer shall provide written notice thereof to the Agency, and, after expiration of the curative
period described in paragraph (c) below, may terminate this Agreement, institute an action to
compel specific performance of the terms hereof by the Agency or pursue any and all legal or
equitable remedies to which the Developer is entitled; provided, however, if the event of default
by the Agency occurs on or prior to the Commencement Date, any monetary recovery by the
Developer in any such action shall not include any lost profits or consequential damages and
shall be limited to bona fide third-party out-of-pocket costs and expenses, including reasonable
attorneys' fees, incurred by the Developer in connection with the negotiation of this Agreement
as well as any investigation, due diligence, development, design or construction costs incurred
by the Developer in connection with the proposed acquisition and development of the Site,
unless any such default by the Agency was willful and committed in bad faith with reckless
disregard for the rights of the Developer.
(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, 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.
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9.03. Obligations, Rights and Remedies Cumulative. Unless specifically stated herein
to the contrary, the specified rights and remedies to which either the Agency or the Developer
are entitled under this Agreement are not exclusive and are intended to be in addition to any
other remedies or means of redress to which the Agency or the Developer may lawfully be
entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in,
the performance of its obligations by the Developer, while the Agency shall at such time be in
default of their obligations hereunder shall not be deemed to be an "event of default." The
suspension of, or delay in, the performance of the obligations by the Agency while the
Developer shall at such time be in default of its obligations hereunder shall not be deemed to be
an "event of default" by the Agency.
9.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of
the Agency or the Developer to promptly or continually insist upon strict performance of any
term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other
agreement, instrument or document of whatever form or nature contemplated hereby shall not
be deemed a waiver of any right or remedy that the Agency or the Developer may have, and
shall 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 there from, or such part of the Site is taken by the power of eminent domain
so as to render the Project commercially unfeasible or unusable for its intended uses as
contemplated by this Agreement;
(2) The appropriate governmental authority (but not including the City in
exercise of its governmental and regulatory authority and responsibility), upon petition by the
Developer, unduly delays or denies or fails to issue the Permits, issue the Building Permits, or
approve any other land use approval necessary to commence construction of the Project on the
Site;
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(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 Delay.
(a) Any delay in performance of or inability to perform any obligation under this
Agreement (other than an obligation to pay money) due to any event or condition described in
paragraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in
this Section 10.01.
(b) "Unavoidable Delay" means any of the following events or conditions or any
combination thereof: acts of God, acts of the public enemy, riot, insurrection, terrorist attack,
war, pestilence, archaeological excavations required by law, unavailability of materials after
timely ordering of same, epidemics, quarantine restrictions, freight embargoes, fire, lightning,
hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement
weather (as indicated by the records of the local weather bureau for a five-year period
preceding the Effective Date), strikes or labor disturbances, delays due to proceedings under
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.
Attachment number 1
Page 19 of 27
Item # 3
20
(a) (1) Prior to the earlier of the Termination Date or the Expiration Date, the
Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest
and obligations in and to the Project, or any part thereof to any person with the prior written
consent of the Agency, provided that such party (hereinafter referred to as the "assignee"), to
the extent of the sale, conveyance, assignment or other disposition by the Developer to the
assignee, shall be bound by the terms of this Agreement the same as the Developer for such
part of the Project as is subject to such sale, conveyance, assignment or other disposition,
except for the sale of a condominium in the ordinary course of business.
(2) If the assignee of Developer's right, title, interest and obligations in and to
the Project, or any part thereof, assumes all of Developer's obligations hereunder for the
Project, or that part subject to such sale, conveyance, assignment or other disposition, then the
Developer shall be released from all such obligations hereunder which have been so assumed
by the assignee, and the Agency agrees to execute an instrument evidencing such release,
which shall be in recordable form.
(b) An assignment of the Project, or any part thereof, by the Developer to any
corporation, limited partnership, general partnership, or joint venture, in which the Developer is
the or a general partner or has either the controlling interest or through a joint venture or other
arrangement shares equal management rights with a financial institution and maintains such
controlling interest or equal management rights for the term of this Agreement shall not be
deemed an assignment or transfer subject to any restriction on or approvals of assignments or
transfers imposed by this Section 11.01, provided, however, that notice of such assignment
shall be given by the Developer to the Agency no less than thirty (30) days prior to such
assignment being effective and the assignee shall be bound by the terms of this Agreement to
the same extent as would the Developer in the absence of such assignment. If the Developer
shall at any time withdraw or be replaced as a general partner or no longer have the controlling
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:
Attachment number 1
Page 20 of 27
Item # 3
21
To the Developer: To the Agency:
Kevin Burke
Mainstreet Clearwater Development, LLC Community Redevelopment Agency of
400 Cleveland St., Suite 200 the City of Clearwater
Clearwater, FL 33755 112 S. Osceola Avenue
Attention: Clearwater, FL 33756
FAX # (727)_________ Attention: Rod Irwin
FAX # (727) 562-4052
with copies to: with copies to:
Andrea E. Zelman, Esquire and City of Clearwater
Dale M. Vash, Esquire 112 S. Osceola Avenue
Fowler White Boggs P.A., Suite 1700 Clearwater, FL 33756
Tampa, Florida 33602 Attention: City Attorney
FAX# (813) 229-8313 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.
Attachment number 1
Page 21 of 27
Item # 3
22
(b) Each party to this Agreement hereby submits to the jurisdiction of the State of
Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States
District Court for the Middle District of Florida, for the purposes of any suit, action, or other
proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way
of a motion as a defense or otherwise that such action is brought in an inconvenient forum or
that the venue of such action is improper or that the subject matter thereof may not be enforced
in or by such courts.
(c) If at any time during the term of this Agreement the Developer is not a resident of
the State of Florida or has no office, employee, agency or general partner thereof available for
service of process as a resident of the State of Florida, or if any permitted assignee thereof shall
be a foreign corporation, partnership or other entity or shall have no officer, employee, agent, or
general partner available for service of process in the State of Florida, the Developer hereby
designates the Secretary of State, State of Florida, its agent for the service of process in any
court action between it and the Agency arising out of or relating to this Agreement and such
service shall be made as provided by the laws of the State of Florida for service upon a
non-resident; provided, however, that at the time of service on the Florida Secretary of State, a
copy of such service shall be delivered to the Developer at the address for notices as provided
in Section 11.03.
11.07. Agreement Not a Chapter 86-191, Laws of Florida, Development Agreement.
The Developer and the Agency acknowledge, agree and represent that this Agreement,
including, without limitation, any of the Exhibits, is not a development agreement as described in
Sections 19-31, Chapter 86-191, Laws of Florida, codified as Sections 163.3220-163.3243,
Florida Statutes.
11.08. Estoppel Certificates. The Developer and the Agency shall at any time and from
time to time, upon not less than ten (10) days prior notice by another party hereto, execute,
acknowledge and deliver to the other parties a statement in recordable form certifying that this
Agreement has not been modified and is in full force and effect (or if there have been
modifications that the said Agreement as modified is in full force and effect and setting forth a
notation of such modifications), and that to the knowledge of such party, neither it nor any other
party is then in default hereof (or if another party is then in default hereof, stating the nature and
details of such default), it being intended that any such statement delivered pursuant to this
Section 11.08 may be relied upon by any prospective purchaser, mortgagee, successor,
assignee of any mortgage or assignee of the respective interest in the Project, if any, of any
party made in accordance with the provisions of this Agreement.
11.09. Complete 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.
Attachment number 1
Page 22 of 27
Item # 3
23
(c) This Agreement cannot be changed or revised except by written amendment
signed by all parties hereto.
11.10. Captions. The article and section headings and captions of this Agreement and
the table of contents preceding this Agreement are for convenience and reference only and in
no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any
way affect this Agreement or construe any article, section, subsection, paragraph or provision
hereof.
11.11. Holidays. It is hereby agreed and declared that whenever a notice or
performance under the terms of this Agreement is to be made or given on a Saturday or Sunday
or on a legal holiday observed in the City, it shall be postponed to the next following business
day.
11.12. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential
part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not
physically attached hereto shall be treated as if they are part of this Agreement.
11.13. No Brokers. The Agency and the Developer hereby represent, agree and
acknowledge that no real estate broker or other person is entitled to claim or to be paid a
commission as a result of the execution and delivery of this Agreement, including any of the
Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of
any or all of the Site.
11.14. Not an Agent. During the term of this Agreement, the Developer hereunder shall
not be an agent of the City or the Agency, with respect to any and all services to be performed
by the Developer (and any of its agents, assigns, or successors) with respect to the Project, and
the Agency is not an agent of the Developer (and any of its agents, assigns, or successors).
11.15. Memorandum of Development Agreement. The Agency and the Developer
agree to execute, in recordable form, on the Effective Date, the short form "Memorandum of
Agreement for Development," the form of which is attached hereto as Exhibit D , and agree,
authorize and hereby direct such Memorandum to be recorded in the public records of Pinellas
County, Florida, as soon as possible after execution thereof. The Agency shall pay the cost of
such recording.
11.16. Public Purpose. The parties acknowledge and agree that this Agreement
satisfies, fulfills and is pursuant to and for a public purpose and municipal purpose and is in the
public interest, and is a proper exercise of the Agency's power and authority under the Act.
11.17. No General 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.
Attachment number 1
Page 23 of 27
Item # 3
24
11.18. Technical Amendments. In the event that due to minor inaccuracies contained
herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to
changes resulting from technical matters arising during the term of this Agreement, the parties
agree that amendments to this Agreement required due to such inaccuracies, unforeseen
events or circumstances which do not change the substance of this Agreement may be made
and incorporated herein. The Chairman of the Agency is authorized to approve such technical
amendments on behalf of the Agency, respectively, and is authorized to execute any required
instruments, to make and incorporate such amendment to this Agreement or any Exhibit
attached hereto or any other agreement contemplated hereby.
11.19. Term; Expiration; Certificate.
(a) If not earlier terminated as provided in Section 9.05, the term of this Agreement
shall expire and this Agreement shall no longer be of any force and effect (except for those
matters which specifically survive such expiration) on the tenth (10th) anniversary of the
Effective Date.
(b) Upon completion of the term of this Agreement, all parties hereto shall execute
the Agreement Expiration Certificate. The Agreement Expiration Certificate shall constitute (and
it shall be so provided in the certificate) a conclusive determination of satisfactory completion of
all obligations hereunder and the expiration of this Agreement.
(c) The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records of Pinellas County, Florida. Following execution by all of the
parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the
Developer in the public records of Pinellas County, Florida, and the Developer shall pay the cost
of such recording.
11.20. Effective Date. Following execution of this Agreement (and such of the Exhibits
as are contemplated to be executed simultaneously with this Agreement) by the authorized
officers of the Agency and by authorized representatives of the Developer following approval
hereof by the Agency and the Developer, this Agreement (and any executed Exhibits) shall be
in full force and effect in accordance with its terms and upon the recording of the Memorandum
of Development Agreement as contemplated by Section 11.15 hereof.
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of this _______ day of __________, 2010.
COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLEARWATER, FLORIDA
By: __________________________
Frank V. Hibbard
Chairperson
Approved as to form: Attest:
Attachment number 1
Page 24 of 27
Item # 3
25
________________________ ______________________________
Pamela K. Akin Cynthia E. Goudeau
City Attorney City Clerk
Witnesses: MAINSTREET CLEARWATER DEVELOPMENT, LLC,
a Florida limited liability company
___________________________ By: ______________________________________
Kevin Burke, its Managing Member
___________________________
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2010 by Kevin Burke, Managing Member of Mainstreet Clearwater
Development, LLC, a Florida limited liability company and on behalf of said company. They are
personally known to me or have produced a valid driver's license as identification.
(SEAL)
________________________________
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
Attachment number 1
Page 25 of 27
Item # 3
26
EXHIBIT A
LEGAL DESCRIPTION
[TO BE FURNISHED]
Attachment number 1
Page 26 of 27
Item # 3
27
LIST OF EXHIBITS
EXHIBIT A -- Legal Description
EXHIBIT B -- Site Plan
EXHIBIT C -- Performance Mortgage
EXHIBIT D -- Memorandum of Agreement for Development
EXHIBIT E -- Agreement Expiration Certificate
EXHIBIT F -- Agreement Termination Certificate
Attachment number 1
Page 27 of 27
Item # 3
EXHIBIT “A”
Lots 5 and 6 of EARLL AND TATE’S SUBDIVISION, according to the map or plat thereof as
recorded in Plat Book 1, page 20, of the Public Records of Hillsborough County, Florida, of
which Pinellas County was formerly a part.
Attachment number 2
Page 1 of 1
Item # 3
Attachment number 3
Page 1 of 1
Item # 3
1
PREPARED BY AND RETURN TO:
Dale M. Vash, Esquire
Fowler White Boggs P.A.
501 E. Kennedy Blvd., Suite 1700
Tampa, Florida 33602
NO DOCUMENTARY STAMP TAXES ARE DUE ON THIS MORTGAGE BECAUSE IT
SECURES THE PERFORMANCE OF AN OBLIGATION, NOT THE PAYMENT OF
MONEY.
PERFORMANCE MORTGAGE
THIS PERFORMANCE MORTGAGE, made and entered into this _____ day of
_____________, 2010, between MAINSTREET CLEARWATER DEVELOPMENT, LLC.,
a Florida limited liability company, hereinafter referred to as “Mortgagor”, whose mailing
address is: 400 Cleveland Street, Suite 200, Clearwater, Florida 33755, and COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public
body corporate and politic of the State of Florida created pursuant to Part III, Chapter 163,
Florida Statutes, hereinafter referred to as “Mortgagee”, whose mailing address is: 112 S.
Osceola Avenue, Clearwater, FL 33756,
W I T N E S S E T H:
WHEREAS, Mortgagor and Mortgagee entered into that certain Development Agreement
dated ___________________, 2010, [the “Agreement”], a memorandum of which Agreement is
to be recorded simultaneously herewith, wherein it is agreed that the Mortgagor has certain
development obligations as to that certain land situate in Pinellas County, Florida, as described in
Exhibit “A” attached hereto; and
WHEREAS, until the Termination Date or Expiration Date of the Agreement, it is the
intention by virtue of this Mortgage to secure the full performance by the Mortgagor, in
accordance with the said Agreement and proper application of all credits and fees applicable or
payable under said Agreement in the amount of _______________dollars ($___________); it is
NOW, THEREFORE, to secure the performance and observance by Mortgagor of all
covenants and conditions in the Agreement and in this Mortgage and in all other instruments
securing the Agreement, and in order to charge the properties, interest and rights hereinafter
described with such payment, performance and observance and for and in consideration of the
sum of One Dollar ($1.00) paid by Mortgagee to Mortgagor this date, and for other valuable
considerations as provided in the Agreement, the receipt of which is acknowledged, Mortgagor
does hereby grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage,
hypothecate, pledge, deliver, set over, warrant and confirm unto Mortgagee, its successors and
assigns forever, the property described in Exhibit “A” attached hereto and made a part hereof by
reference and situated in Pinellas County, Florida.
Attachment number 4
Page 1 of 16
Item # 3
2
TOGETHER with all buildings, structures and improvements of every nature whatsoever
now or hereafter situated on the land, and all fixtures, machinery, appliances, equipment,
furniture, and personal property of every nature whatsoever now or hereafter owned by
Mortgagor and located in or on, or attached to, or used or intended to be used in connection with
or without the operation of, the land, buildings, structures or other improvements, and owned by
Mortgagor, including all extensions, additions, improvements, betterments, renewals,
substitutions, and replacements to any of the foregoing and all of the right, title and interest of
mortgagor in and to any such personal property or fixtures.
TOGETHER with all easements, rights of way, streets, ways, alleys, passages, sewer
rights, waters, water courses, water rights and powers, and all tenements, hereditaments and
appurtenances whatsoever, in any way belonging, relating or appertaining to any of the property
hereinabove described, or which hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by Mortgagor, and the reversion and rever-
sions, remainder and remainders, and all the estate, right, title, interest, property, possession,
claim and demand whatsoever, at law as well as in equity, of Mortgagor of, in and to the same.
TOGETHER with all rents, royalties, issues, profits, revenue, income and other benefits
from the property described herein, to be applied against the indebtedness and other sums
secured hereby, provided, however, that permission is hereby given to Mortgagor so long as no
default has occurred hereunder, to collect, receive, take, use and enjoy such rents, royalties,
issues, profits, revenue, income and other benefits as they become due and payable, but not in
advance thereof. The foregoing assignment shall be fully operative without any further action on
the part of either party and specifically Mortgagee shall be entitled, at its option, upon the
occurrence of a default hereunder, to all rents, royalties, issues, profits, revenue, income, and
other benefits from the property whether or not Mortgagee takes possession of the property.
Upon any such default hereunder, the permission hereby given to Mortgagor to collect such
rents, royalties, issues, profits, revenue, income and other benefits from the property shall termi-
nate and such permission shall not be reinstated upon a cure of the default without Mortgagee’s
specific consent. Neither the exercise of any rights under this paragraph by Mortgagee nor the
application of any such rents, royalties, issues, profits, revenue, income or other benefits to the
indebtedness and other sums secured hereby, shall cure or waive any default or notice of default
hereunder or invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
TOGETHER with a security interest in all articles of personal property and all materials
delivered to the property described herein for use in any construction being conducted thereon,
and owned by Mortgagor, and all contract rights, general intangibles, actions and rights in action,
including all rights to insurance proceeds, and all proceeds, products, replacements, additions,
substitutions, renewals and accessions of any of the foregoing. This Mortgage is a self-operative
security agreement with respect to such property, but Mortgagor agrees to execute and deliver on
demand such other security agreements, financing statements and other instruments as
Mortgagee may request in order to perfect its security interest or to impose the lien hereof more
specifically upon any of such property. Mortgagee shall have all the rights and remedies in
addition to those specified herein of a secured party under the Uniform Commercial Code of
Florida.
Attachment number 4
Page 2 of 16
Item # 3
3
ALL OF WHICH real and personal property, rights and intangibles are herein referred to
as the “Mortgaged Property”.
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto
Mortgagee, its successors and assigns, to its own property use and benefit forever, subject,
however, to the terms and conditions herein.
PROVIDED ALWAYS, that if all obligations are timely performed and the warranties
and conditions of this Mortgage are complied with, this Mortgage shall be null and void, and so
long as Mortgagor is not in default under the Agreement, it shall be entitled to the full benefit of
its contract rights under said Agreement.
Mortgagor covenants and agrees with Mortgagee as follows:
ARTICLE ONE
COVENANTS OF MORTGAGOR
1.01 Performance of Agreement, Mortgage. Mortgagor shall perform, observe and
comply with all provisions hereof, of the Agreement and of every other instrument securing the
Agreement.
1.02 Warranty of Title. Mortgagor covenants and warrants that it is seized of an
indefeasible estate in fee simple in the real property hereby mortgaged, has good and absolute
title to all existing personal property hereby mortgaged or made subject to the security interest
hereby created and has good right, full power and lawful authority to convey, mortgage and
encumber the same as provided herein; that Mortgagee may at all times peaceably and quietly
enter upon, hold, occupy and enjoy the real property hereby mortgaged and every part thereof;
that the real property and all existing personal property hereby mortgaged or made subject to the
security interest hereby created is free and clear of all liens, security interests, charges and
encumbrances whatsoever, except for easements of record and the lien for property taxes not yet
due and payable and any mortgage described in Section 3.01 below. Mortgagor shall and will
make such further assurances to perfect Mortgagee’s fee simple title to the real property hereby
mortgaged, and the title to the personal property hereby mortgaged or made subject to the securi-
ty interest hereby created as may reasonably be required. Except as herein provided, Mortgagor
fully warrants the title to the real property and all existing personal property hereby mortgaged or
made subject to the security interest hereby created, and every part hereof, and will forever
defend the same against the claims of all persons whomsoever.
1.03 Taxes and Liens.
A. Mortgagor shall pay promptly, when and as due, and shall promptly exhibit to
Mortgagee receipts for the payment of, all taxes, assessments, rates, dues, charges, fees, levies,
fines, impositions, liens, liabilities, obligations and encumbrances of every kind whatsoever now
or hereafter imposed, levied or assessed upon or against the Mortgaged Property or any part
thereof, and any charge which, if unpaid, would become a lien or charge upon the Mortgaged
Property prior to or equal to the lien of this mortgage, before they become delinquent and before
any interest attaches or any penalty is incurred.
Attachment number 4
Page 3 of 16
Item # 3
4
B. Mortgagor shall not permit or suffer any mechanics’, laborers’, materialmen’s,
statutory or other lien which might or could be prior or equal to the lien of this Mortgage to be
created or to remain a lien upon any of the Mortgaged Property.
1.04 Insurance.
A. Mortgagor shall at its sole expense obtain for, deliver to and maintain for the
benefit of Mortgagee, during the life of this Mortgage, insurance policies in such amounts as
Mortgagee may require, insuring the Mortgaged Property against fire, flood, extended coverage,
and such other insurable hazards, casualties, contingencies and public liability insurance, as
Mortgagee may require, and shall pay promptly, when due, any premiums on such insurance
policies and on any renewals thereof. The form of such policies and the companies issuing them
shall be acceptable to Mortgagee. All such policies and renewals thereof shall be held by
Mortgagee and shall contain a non-contributory mortgagee endorsement making losses payable
to Mortgagee subject to the rights of any mortgagee described in Section 3.01 below. The
coverage under such policies shall be limited to the improvements now or hereafter located on
the Mortgaged Property. At least fifteen (15) days prior to the expiration date of all such
policies, renewals thereof satisfactory to Mortgagee shall be delivered to Mortgagee, Mortgagor
shall deliver to Mortgagee receipts evidencing the payment of all premiums on such insurance
policies and renewals. Delivery of the insurance policies and renewals thereof shall constitute an
assignment to Mortgagee, as further security, of all unearned premiums. In the event of loss,
Mortgagor will give immediate written notice to Mortgagee and Mortgagee may make proof of
loss if not made promptly by Mortgagor. In the event of the foreclosure of this Mortgage or any
other transfer of title to the Mortgaged Property in extinguishment of the indebtedness and other
sums secured hereby, all right, title and interest of Mortgagor in and to all insurance policies and
renewals thereof then in force shall pass to the purchaser or grantee.
B. Mortgagor hereby assigns to Mortgagee all proceeds from any insurance policies,
and Mortgagee is hereby authorized and empowered, at its option, to adjust or compromise any
loss under any insurance policies on the Mortgaged Property, and to collect and receive the
proceeds from any such policy or policies. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Mortgagee alone, and not to Mortgagor
and Mortgagee jointly. After deducting from such insurance proceeds any expenses incurred by
Mortgagee in the collection or handling of such funds, Mortgagee may apply the net proceeds, at
its option, either toward restoring the improvements or as a credit on any portion of the
indebtedness and other sums secured hereby, whether then matured or to mature in the future, or
at the option of Mortgagee such sums either wholly or in part may be paid over to the Mortgagor
to be used to repair such improvements or to build new improvements in their place or for any
other purpose or object satisfactory to Mortgagee, without affecting the lien of this Mortgage for
the full amount secured hereby before such payment took place. Mortgagee shall not be
responsible for any failure to collect any insurance proceeds due under the terms of any policy
regardless of the cause of such failure. Notwithstanding anything in the foregoing to the
contrary, the rights of Mortgagee under this Subsection B shall be subject and subordinate to the
rights of any mortgagee described in Section 3.01 below.
C. Mortgagor shall at its sole expense obtain for, deliver to and maintain for the
benefit of Mortgagee, during the life of this Mortgage, liability insurance policies relating to the
Attachment number 4
Page 4 of 16
Item # 3
5
Mortgaged Property, in such amounts, with such companies and in such form as may be required
by Mortgagee. Mortgagee may require such policies to contain an endorsement, in form satis-
factory to Mortgagee, naming Mortgagee as an additional insured thereunder. Mortgagor shall
pay promptly, when due, any premiums on such insurance policies and renewals thereof.
D. In the event of a foreclosure of this Mortgage, the purchaser of the Mortgaged
Property shall succeed to all the rights of Mortgagor, including any right to unearned premiums,
in and to all policies of insurance assigned and delivered to Mortgagee, with respect to all
property herein encumbered.
E. Subject to the rights of any mortgagee described in Section 3.01 below,
Mortgagee may, at its option, direct the payment of the insurance proceeds into an escrow
account at a bank, title insurance company or law firm designated by Mortgagee to be held for
the benefit of the Mortgagor and Mortgagee during the re-building of the Mortgaged Property
and shall be released by Mortgagee upon the approval of the inspecting architect or engineer that
the Mortgaged Property has been restored to the condition it was prior to the loss. In the event
additional financing is necessary to meet the requirements of any general contract which might
be used to effect such reconstruction, then the Mortgagor shall place said additional funds into
the escrow account.
1.05 INTENTIONALLY DELETED.
1.06 Condemnation. If all or a material part (which determination shall be made by
Mortgagee in its sole and absolute discretion) of the Mortgaged Property shall be damaged or
taken through condemnation (which term when used herein shall include any damage or taking
by any governmental authority or any other authority authorized by the laws of the State of
Florida or the United States of America to so damage or take, and any transfer by private sale in
lieu thereof), either temporarily or permanently, at the option of Mortgagee, Mortgagor shall be
deemed in default hereunder. Mortgagee shall be entitled to all compensation awards, damages,
claims, rights of action and proceeds of, or on account of, any damage or taking through
condemnation and is hereby authorized, at its option, to commence, appear in and prosecute, in
its own or Mortgagor’s name, any action or proceeding relating to any condemnation, and to
settle or compromise any claim in connection therewith. All such compensation awards,
damages, claims, rights of action and proceeds, and any other payments or relief, and the right
thereto, are hereby assigned by Mortgagor to Mortgagee, which, after deducting therefrom all its
expenses, including, without limitation, attorneys’ fees, may release any monies so received by it
without affecting the lien of this Mortgage or may apply the same, in such manner as Mortgagee
shall determine, to the reduction of the sums secured hereby and to any prepayment charge
provided in the Agreement, this Mortgage or other instrument securing the Agreement. Any
balance of such monies then remaining shall be paid to Mortgagor. Mortgagor agrees to execute
such further assignments of any compensation, awards, damages, claims, rights of action and
proceeds as Mortgagee may require. Notwithstanding anything in the foregoing to the contrary,
the rights of the Mortgagee under this Section 1.06 shall be subject and subordinate to the rights
of any mortgagee described in Section 3.01 below.
Attachment number 4
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1.07 Care of Property.
A. Mortgagor shall preserve and maintain the Mortgaged Property in good condition
and repair. Except as contemplated and permitted elsewhere in this mortgage, Mortgagor shall
not remove, demolish, alter or change the use of any structure or other improvement presently or
hereafter on that portion of the Mortgaged Property described as the Project in the Agreement
without the prior written consent of Mortgagee, nor permit, commit or suffer any waste,
impairment or deterioration of the Mortgaged Property or of any part thereof, and will not take
any action which will increase the risk of fire or other hazard to the Mortgaged Property or to
any part thereof.
B. Mortgagee may enter upon and inspect the Mortgaged Property at any reasonable
time during the life of this Mortgage.
C. Mortgagor will promptly comply with all present and future laws, ordinances,
rules and regulations of any governmental authority affecting the Mortgaged Property or any part
thereof.
1.08 Transfer of Property Title. If all or any part of the Mortgaged Property or any
interest therein is sold or transferred by Mortgagor without Mortgagee’s prior written consent,
excluding (a) the creation of a lien or encumbrance subordinate to this mortgage, (b) the creation
of a purchase money security interest for appliances, fixtures or equipment, (c) a transfer by
devise, descent or by operation of law upon the death of a joint tenant, (d) the grant of any
leasehold interest of ten (10) years or less not containing an option to purchase, or (e) the
refinancing of any mortgage described in Section 3.01 below in an amount not to exceed the loan
amount described in Section 3.01 below. Mortgagee may, at Mortgagee’s option, declare a
default hereunder. Mortgagee shall have waived such option to accelerate if, prior to the sale or
transfer, Mortgagee and the person to whom the mortgaged property is to be sold or transferred
reach agreement in writing that the credit of such person is satisfactory to Mortgagee and that the
interest payment on the sums secured by this mortgage shall be at such rate as Mortgagee shall
request.
1.09 Further Assurances. At any time and from time to time, upon Mortgagee’s
request, Mortgagor shall make, execute and deliver or cause to be made, executed and delivered
to Mortgagee any and all such further mortgages, instruments of further assurance, certificates,
updated financial statements and secure financial information and any other documents as
Mortgagee may consider necessary or desirable in order to effectuate, complete or perfect, or to
continue and preserve the obligations of Mortgagor under the Agreement and this Mortgage, and
the lien of this Mortgage as a valid and existing lien upon all of the Mortgaged Property, whether
now owned or hereafter acquired by Mortgagor. Upon any failure by Mortgagor to do so,
Mortgagee may make, execute, record, file, re-record or refile any and all such mortgages,
instruments, certificates and documents for and in the name of Mortgagor, and Mortgagor hereby
irrevocably appoints Mortgagee the agent and attorney-in-fact of Mortgagor to do so. Mortgagor
shall promptly deliver to Mortgagee receipts showing payment in full of all of the above items
which are not paid from the escrow account, if any, herein established.
1.10 INTENTIONALLY DELETED
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1.11 After Acquired Property. The lien of this Mortgage will automatically attach,
without further act, to all after acquired property located in or on, or attached to, or used or
intended to be used in connection with or with the operation of, the Mortgaged Property or any
part thereof.
1.12 Expenses. Mortgagor shall pay or reimburse Mortgagee for all costs, charges and
expenses, including reasonable attorneys’ fees and disbursements and costs incurred or paid by
Mortgagee in any threatened, pending or completed action, proceeding or dispute in which
Mortgagee is or might be made a party or appears as a party plaintiff or party defendant and
which affects or might affect the Agreement, this Mortgage or any other instrument securing the
Agreement, or the Mortgaged Property or any part thereof, or the interests of Mortgagor or
Mortgagee therein, including but not limited to the foreclosure of this Mortgage, condemnation
involving all or part of the Mortgaged Property or any action to protect the security hereof,
including all appellate proceedings in connection with or arising out of any of the foregoing. All
costs, charges and expenses so incurred or paid by Mortgagee shall become due and payable
immediately, whether or not there be notice, demand, attempt to collect or suit pending. The
amounts so incurred or paid by Mortgagee, together with interest thereon at the Default Rate as
hereinafter defined from the date incurred until paid by Mortgagor, shall be secured by the lien
of this mortgage.
1.13 Performance of Defaults. If Mortgagor defaults in the payment of any tax,
assessment, encumbrance or other imposition, in its obligation to furnish insurance hereunder or
in the performance or observation of any other covenant, condition or term in this Mortgage or in
any other instrument securing the Agreement, Mortgagee may at its option perform, correct or
observe the same, and all payments made (whether such payments are regular or accelerated
payments) and costs and expenses incurred or paid by Mortgagee in connection therewith shall
become due and payable immediately, whether or not there be notice or demand. The amounts
so incurred or paid by Mortgagee, together with interest thereon at the Default Rate as
hereinafter defined from the date incurred until paid by Mortgagor, shall be secured by the lien
of this Mortgage. Nothing contained herein shall be construed as requiring Mortgagee to
advance or expend monies for any purpose mentioned in this paragraph, or for any other
purpose. Mortgagee is hereby empowered to enter and to authorize others to enter upon the
Mortgaged Property or any part thereof for the purpose of performing or observing any such
defaulted covenant, condition or term, without thereby becoming liable to Mortgagor or any
person in possession holding under Mortgagor.
1.14 Estoppel Affidavits. Either Mortgagor or Mortgagee within ten (10) days after
written request from the other shall furnish a written statement, duly acknowledged, setting forth
the ongoing or unmet obligations under the Agreement, and any other unpaid sums secured
hereby, and whether or not any offsets or defenses exist.
ARTICLE TWO
DEFAULTS
2.01 Event of Default. The term default, wherever used in this Mortgage, shall mean
any one or more of the following events:
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A. Breach of or failure by Mortgagor to duly keep, perform and observe any other
covenant, condition or agreement in the Agreement, this Mortgage, any other instrument
securing the Agreement or any other instrument collateral to the Agreement or executed in
connection with the sums secured hereby.
B. If the Mortgagor at any time shall: (i) file a voluntary petition in bankruptcy, or
(ii) be adjudicated as bankrupt or insolvent, or (iii) seek or consent to or acquiesce in the appoint-
ment of a trustee, receiver, master or liquidator of all or any substantial part of the Mortgaged
Property or of any or all of the rents, revenues, issues, earnings, profits or income thereof; or (iv)
make any general assignment for the benefit of creditors; or make an admission in writing of its
inability to pay its debts generally as they become due; or (v) if a court of competent jurisdiction
enters an order, judgment or decree approving a petition filed against Mortgagor seeking any
arrangement, composition, readjustment, liquidation, or similar relief under any present or future
federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief
for debtors.
C. Material breach of any warranty or material untruth of any representation of
Mortgagor contained in the Agreement, this Mortgage or any other instrument securing the
Agreement.
D. Should foreclosure proceedings (whether judicial or otherwise) be instituted on
any mortgage or any junior lien of any kind secured by any portion of the Mortgaged Property,
and not be terminated within forty-five (45) days.
E. Should Mortgagor default in any other loan from Mortgagee to Mortgagor.
F. Except for sale of portions of the Mortgaged Property made in the ordinary course
of business for which a partial release or consent is obtained, should Mortgagor encumber, sell or
otherwise dispose of the Mortgaged Property, or any part or interest thereof, without the consent
in writing of the Mortgagee.
2.02 Mortgagee’s Power of Enforcement. If an event of default shall have occurred,
Mortgagee may, either with or without entry or taking possession as hereinabove provided or
otherwise, proceed by suit or suits at law or in equity or by any other appropriate proceeding or
remedy; (a) to enforce the Agreement or the performance of any term hereof or any other right;
(b) to foreclose this Mortgage and to sell, as an entirety or in separate lots or parcels, the
Mortgaged Property, under the judgment or decree of a court or courts of competent jurisdiction;
or (c) to pursue any other remedy available to it. Mortgagee may take action either by such
proceedings or by the exercise of its powers with respect to entry or taking possession, or both,
as the Mortgagee may determine.
2.03 Receiver. If an event of default shall have occurred, Mortgagee, to the extent
permitted by law and without regard to the value or occupancy of the security, shall be entitled as
a matter of right if it so elects to the appointment of a receiver to enter upon and take possession
of the Mortgaged Property and to collect all rents, revenues, issues, income, products and profits
thereof and apply the same as the court may direct. The receiver shall have all rights and powers
permitted under the laws of the State of Florida and such other powers as the court making such
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appointment shall confer. The expenses, including receiver’s fees, attorney’s fees, costs and
agent’s compensation, incurred pursuant to the powers herein contained shall be secured by this
Mortgage. The right to enter and take possession of and to manage and operate the Mortgaged
Property, and to collect the rents, issues and profits thereof, whether by a receiver or otherwise,
shall be cumulative to any other right or remedy hereunder or afforded by law, and may be
exercised concurrently therewith or independently thereof. Mortgagee shall be liable to account
only for such rents, issues and profits as are actually received by Mortgagee.
2.04 Deficiency. In case of a foreclosure sale of all or any part of the Mortgaged
Property and of the application of the proceeds of sale Mortgagee shall be entitled to enforce
payment of and to receive any and all amounts due as a result of Mortgagor’s default as defined
in Section 2.01 of this Mortgage and to recover judgment for any portion thereof remaining
unpaid, with interest. Mortgagor hereby agrees, to the extent permitted by law, that no recovery
of any such judgment by Mortgagee and no attachment or levy of any execution upon any of the
Mortgaged Property or and other property shall in any way affect the lien of this Mortgage upon
the Mortgaged Property or any part thereof, or any lien, rights, powers or remedies of Mortgagee
hereunder, but such lien, rights, powers and remedies shall continue unimpaired as before.
2.05 Delay or Omission No Waiver. No delay or omission of Mortgagee or any holder
or the Agreement to exercise any right, power or remedy accruing upon any event of default
shall exhaust any such event of default or to constitute acquiescence therein. Every right, power
and remedy given to Mortgagee may be exercised from time to time and as often as may be
deemed expedient by Mortgagee.
2.06 No Waiver of One Default to Affect Another. No waiver of any event of default
hereunder shall extend to or affect any subsequent or any other event of default then existing, or
impair any rights, powers or remedies consequent thereon. If Mortgagee (a) grants forbearance
or an extension of time for performance secured hereby; (b) takes other or additional security for
the performance thereof; (c) waives or does not exercise any right granted in the Agreement, this
Mortgage or any other instrument securing the Agreement; (d) releases any part of the
Mortgaged Property from the lien of this Mortgage or any other instrument securing the
Agreement; (e) consents to the filing of any declaration of condominium, map, plat or replat of
the land; or (f) makes or consents to any agreement changing the terms of this Mortgage or
subordinating the lien or any charge hereof, no such act or omission shall release, discharge,
modify, change or affect the original liability under the Agreement, this Mortgage, or otherwise
of Mortgagor, or any subsequent purchaser of the Mortgaged Property or any part thereof or any
maker, co-signer, endorser, surety or guarantor. No such act or omission shall preclude
Mortgagee from exercising any right, power or privilege herein granted or intended to be granted
in case of any event of default then existing or of any subsequent event of default nor, except as
otherwise expressly provided in an instrument or instruments executed by Mortgagee, shall the
lien of this Mortgage be altered thereby. In the event of the sale or transfer by operation of law
or otherwise of all or any part of the Mortgaged Property, Mortgagee, without notice to any
person, firm or corporation, is hereby authorized and empowered to deal with any such vendee or
transferee with reference to the Mortgaged Property or the indebtedness secured hereby, or with
reference to any of the terms or conditions hereof, as fully and to the same extent as it might deal
with the original parties hereto and without in any way releasing or discharging any of the liabili-
ties or undertakings hereunder of the original Mortgagor.
Attachment number 4
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2.07 Cumulative. No right, power or remedy conferred upon or reserved to Mortgagee
by the Agreement, this mortgage or any other instrument securing the Agreement is exclusive of
any other right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and remedy given
hereunder or under the Agreement or any other instrument securing the Agreement, or now or
hereafter existing at law, in equity or by statute.
2.08 Default Rate. Any advancements made by and expenses incurred by Mortgagee,
shall bear interest from the due date or the date of advancement or payment by Mortgagee at the
highest contract rate of interest permitted to be charged under the laws of the State of Florida,
which rate is herein referred to as the "Default Rate".
2.09 JURY WAIVER
NOW, SHOULD IT BECOME NECESSARY TO ENFORCE THE AGREEMENT
THROUGH AN ATTORNEY, ANY OF US, WHETHER MAKER, SURETY, OR
ENDORSER ON THIS AGREEMENT, HEREBY AGREES TO PAY ALL COSTS OF
COLLECTION, INCLUDING A REASONABLE ATTORNEYS’ FEE, AND INCLUDING
ANY ATTORNEYS’ FEES INCURRED BY ANY APPEAL. THE UNDERSIGNED
JOINTLY AND SEVERALLY DO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR MORTGAGEE ACCEPTING THIS AGREEMENT.
ARTICLE THREE
SUBORDINATION
3.01 Subordination of Mortgage Rights. Mortgagee does hereby acknowledge that this
Performance Mortgage is subordinate to (i) that certain mortgage given by Mortgagor to Yo
Nancy, Inc. for a total loan amount of $1,550,000.00 (hereinafter the “Institutional Mortgage”)
and (ii) that prior Performance Mortgage dated July 12, 2010, between Mortgagor and
Mortgagee as the same was recorded on August 13, 2010 in Official Records Book 17001 at
Page 323 of the Public Records of Pinellas County, Florida. Furthermore, Mortgagee shall
subordinate this Performance Mortgage to any mortgage given by Mortgagor to secure an
indebtedness incurred by Mortgage to re-finance the total loan amount secured by the
Institutional Mortgage and upon Mortgagor’s written request, Mortgagee shall execute a written
subordination of this Performance Mortgage to said re-financing mortgage; however, such
subordination may be withheld by Mortgagee until such time that Mortgagor presents Mortgagee
with reasonable evidence that at said time the Mortgaged Property is of a market value that is
equal to or exceeds the total amount being refinanced plus $ ____________.
3.02 Subordination of Easement Rights. Provided that Mortgagor is not in default
hereunder, Mortgagee agrees to subordinate the lien of this Mortgage to the rights of the holders
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of any easement hereafter granted by Mortgagor which may reasonably be required to furnish to
the Mortgaged Property utilities such as, but not limited to, water, electricity, sanitary and storm
sewers, gas and telephone.
ARTICLE FOUR
HAZARDOUS SUBSTANCE
4.01 Mortgagor hereby represents that neither Mortgagor nor, to Mortgagor’s
knowledge, any other person has ever used the Mortgaged Property as a storage facility for any
“Hazardous Substance” other than gasoline or motor oil (to the extent same may be Hazardous
Substances) used in the ordinary course of Mortgagor’s business.
Mortgagor hereby agrees to indemnify Mortgagee and hold Mortgagee harmless from
and against any and all losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys’ fees, costs of any settlement or judgment and claims of any and
every kind whatsoever paid, incurred or suffered by, or asserted against, Mortgagee by any
person or entity or governmental agency for, with respect to, or as a direct or indirect result of,
the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, dis-
charging or release from the premises of any Hazardous Substance (including, without limitation,
any losses, liabilities, including strict liability, substances or standards of conduct concerning any
Hazardous Substance), regardless of whether within the control of Mortgagee, so long as the act
or omission in question occurs prior to the sale of the premises and complete dispossession of
Mortgagor thereunder.
For purposes of this instrument, “Hazardous Substances” shall mean and include those
elements or compounds which are contained in the list of hazardous substances adopted by the
United States Environmental Protection Agency (EPA) and the list of toxic pollutants designated
by Congress or the EPA or defined by any other Federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of
conduct concerning any hazardous, toxic or dangerous waste, substance or material as now or at
any time hereafter in effect.
If Mortgagor receives any notice of (i) the happening of any material event involving the
spill, release, leak, seepage, discharge or cleanup of any Hazardous Substance on the premises or
in connection with Mortgagor’s operations thereon or, (ii) any complaint, order, citation or
material notice with regard to air emissions, water discharges, or any other environmental, health
or safety matter affecting Mortgagor (an “Environmental Complaint”) from any person or entity
(including, without limitation, the EPA), then Mortgagor shall immediately notify Mortgagee
orally and in writing of said notice.
Mortgagee shall have the right, but not the obligation, and without limitation of
Mortgagee’s rights under this instrument, to enter onto the Mortgaged Property or to take such
other actions as it deems necessary or advisable to clean up, remove, resolve or minimize the
impact of, or otherwise deal with, any such Hazardous Substance or Environmental Complaint
following receipt of any notice from any person or entity (including, without limitation, the EPA)
asserting the existence of any Hazardous Substance or an Environmental Complaint pertaining to
the Mortgaged Property or any part thereof which, if true, could result in an order, suit or other
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action against Mortgagor and/or which, in the sole opinion of Mortgagee, could jeopardize its
security under this instrument. All reasonable costs and expenses incurred by Mortgagee in the
exercise of any such rights shall be secured by this instrument and shall be payable by Mortgagor
upon demand.
Mortgagee shall have the right, in its reasonable discretion, to require Mortgagor to
periodically (but not more frequently than annually unless an Environmental Complaint is then
outstanding) perform (at Mortgagor’s expense) an environmental audit and, if deemed necessary
by Mortgagee, an environmental risk assessment, each of which must be satisfactory to
Mortgagee, of the Mortgaged Property, hazardous waste management practices and/or hazardous
waste disposal sites used by Mortgagor. Said audit and/or risk assessment must be by an
environmental consultant satisfactory to Mortgagee. If the environmental audit or environmental
risk assessment reveals no recognized environmental concerns, Mortgagee shall be solely liable
for the cost of said audit or assessment and shall reimburse Mortgagor for said cost upon
demand. Should Mortgagor fail to perform said environmental audit or risk assessment within
thirty (30) days of the Mortgagee’s written request, Mortgagee shall have the right, but not the
obligation, to retain an environmental consultant to perform said environmental audit or risk
assessment. All costs and expenses incurred by Mortgagee in the exercise of such rights shall be
secured by this instrument and shall be payable by Mortgagor upon demand.
Any breach of any warranty, representation or agreement contained in this section shall
be an event of default hereunder and shall entitle Mortgagee to exercise any and all remedies
provided in this instrument, or otherwise permitted by law.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
5.01 Successors and Assigns Included in Parties. Whenever one of the parties hereto is
named or referred to herein, the successors and assigns of such party shall be included and all
covenants and agreements contained in this Mortgage, by or on behalf of Mortgagor or
Mortgagee, shall bind and inure to the benefit of their respective successors and assigns, whether
so expressed or not.
5.02 Headings. The headings of the articles, sections, paragraphs and subdivision of
this Mortgage are for convenience of reference only, are not to be considered a part hereof, and
shall not limit or expand or otherwise affect any of the terms hereof.
5.03 Invalid Provisions to Affect no Others. In the event that any of the covenants,
agreements, terms or provisions contained in the Agreement, this Mortgage or any other
instrument securing the Agreement shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining covenants, agreements, terms or provisions contained herein and in the
Agreement and any other instrument securing the Agreement shall be in no way affected,
prejudiced or disturbed thereby.
5.04 Changes. Neither this Mortgage nor any term hereof may be changed, waived,
discharged or terminated orally, or by any action or inaction, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge or termination is
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sought. Any agreement hereafter made by Mortgagor and Mortgagee relating to this Mortgage
shall be superior to the rights of the holder of any intervening lien or encumbrance.
5.05 Governing Law. This Mortgage is made by Mortgagor and accepted by
Mortgagee with reference to the laws of the State of Florida and shall be construed, interpreted,
enforced and governed by and in accordance with such law.
5.06 INTENTIONALLY DELETED.
5.07 Mortgagor as Lessor. Mortgagor shall faithfully perform the covenants of
Mortgagor as lessor under any present and future leases, affecting all or any portion of the
Mortgaged Property, and neither do nor neglect to do, nor permit to be done, anything which
may cause the termination of said leases, or any of them, or which may diminish or impair their
value, or the rents provided for therein, or the interest of Mortgagor or Mortgagee therein or
thereunder.
5.08 INTENTIONALLY DELETED.
5.09 Waiver of Homestead Exemption; Time of Essence. Each individual Mortgagor,
for himself and family, hereby waives and renounces all homestead exemption rights provided
for by the Constitution and Laws of the United States and of the State of Florida in and to the
Mortgaged Property as against the collection of the secured indebtedness, or any part thereof;
and Mortgagor agrees that where, by the terms of the conveyance or the Agreement secured
hereby, a day is named or a time fixed for the payment of any sum of money or the performance
of any agreement, the time stated enters into the consideration and is of the essence of the whole
contract.
5.10 Prior Liens. Except for any mortgage or easement described in Sections 3.01 and
3.02 of this Mortgage, Mortgagor shall keep the Mortgaged Property free from all other prior
liens and, upon demand of Mortgagee, pay and procure release of any such other lien which in
any way may impair the security of this Mortgage.
5.11 Mortgagor’s Duty to Defend. Mortgagor will defend, at its own cost and expense,
and indemnify and hold Mortgagee harmless from, any action, proceeding or claim affecting the
Mortgaged Property, the Agreement or any other loan document. Costs and expenses will
include all reasonable attorney’s fees.
If Mortgagor neglects or refuses to act pursuant to this paragraph, Mortgagee, at its
option (whether electing to declare the entire secured indebtedness due and collectible or not, or
to pursue other remedies for an event of default), may pay for all reasonable attorney’s fees,
costs and expenses incurred in any such action. All such payments, bearing interest thereon from
the time of default as determined by prime rate, plus 100 basis points, as quoted in the Wall
Street Journal, as of the effective day of any default and shall accrue at that rate, from time to
time, as of the date of default, shall be deemed a part of the secured indebtedness and shall be
immediately due and payable by Mortgagor to Mortgagee.
5.12 Compliance with Law. The Mortgagor warrants and represents the Mortgagor has
complied, and shall hereafter comply, with all valid laws, rules, ordinances and regulations of the
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federal, state and local government, and all agencies and subdivisions thereof which laws rules,
ordinances and regulations apply or relate to the Mortgaged Property, the development,
construction and improvements existing or contemplated thereon or as a part thereof, and the sale
or other disposition of the Mortgaged Property, or parts thereof, or the improvements now or
hereafter located thereon or a part thereof, including, but not limited to, all such laws, rules,
ordinances, and regulations regarding land use, zoning, building, subdivision, environment,
OSHA, pollution and sales practices.
5.13 Construction. This Mortgage and all related loan documents, including but not
limited to the Agreement, shall not be construed more strongly against any party regardless of
who was more responsible for its preparation.
5.14 Addresses for Notices.
A. Any notice, report, demand or other instrument authorized or required to be given
or furnished under this Mortgage to Mortgagor or Mortgagee shall be deemed given or furnished
when addressed to the party intended to receive the same, at the address of such party on the first
page hereof, and delivered at such address by personal delivery, national overnight courier
company, or when mailed by first class U.S. Mail, postage prepaid and deposited into the U.S.
Mail, being deemed the delivery of notice, or when given by facsimile transmission or via e-
mail, as follows:
To Mortgagor: MAINSTREET CLEARWATER DEVELOPMENT, LLC.
400 Cleveland Street, Suite 200
Clearwater, Florida 33755
Fax: (727) ___________
To Mortgagee: Attn: City Attorney
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
FAX # (727) 562-4021
B. Either party may change the address to which any such notice, report, demand or
other instrument is to be delivered or mailed, by furnishing written notice of such change to the
other party, but no such notice of change shall be effective unless and until received by such
other party.
5.15 Termination of Agreement. This Performance Mortgage shall not be affected by
termination of the Agreement, to the extent that the CRA (Mortgagee) has expended funds or is
obligated to expend funds for which Mortgagor is liable to reimburse Mortgagee pursuant to the
Agreement and all obligations under this Performance Mortgage shall survive until Mortgagee
has satisfied its liabilities and fulfilled its obligations to Mortgagee under the Agreement.
5.16 Mortgagee’s Satisfaction of Mortgage. Notwithstanding anything to the contrary
elsewhere contained in this Mortgage, if during the term of this Mortgage, Mortgagor seeks to
sell the Mortgaged Property or re-finance the Institutional Mortgage indebtedness described in
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Section 3.01 above and the Purchaser of the Mortgaged Property or the lender refinancing said
indebtedness requires that this Mortgage be satisfied as a condition to its closing of said sale or
re-financing, then in such event, Mortgagee shall furnish a written satisfaction of this Mortgage
in recordable form upon (a) Mortgagor’s presentation of reasonable evidence that one of the
foregoing events has occurred and (b) Mortgagor’s payment to Mortgagee of an amount equal to
the sum which would be due Mortgagee if Mortgagor had failed to comply with the provisions of
Section 6.02 of the Agreement as of the date of the closing of any such sale or re-financing.
NO DOCUMENTARY STAMP TAXES OR INTANGIBLE PERSONAL PROPERTY
TAXES ARE DUE ON THIS MORTGAGE BECAUSE IT SECURES THE
PERFORMANCE OF AN OBLIGATION, NOT THE PAYMENT OF MONEY.
IN WITNESS WHEREOF, the Mortgagor has made, executed, sealed and delivered this
Mortgage, the day and year first above written.
Signed, sealed and delivered
in the presence of: MAINSTREET CLEARWATER
DEVELOPMENT, LLC,
a Florida limited liability company
___________________________________ By:
Print Name__________________________ Kevin Burke, its managing member
___________________________________
Print Name__________________________
STATE OF ___________________
COUNTY OF _________________
I HEREBY CERTIFY, that on this day personally appeared before me, an officer duly
authorized to administer oaths and take acknowledgments, by Kevin Burke, as managing
member of MAINSTREET CLEARWATER DEVELOPMENT, LLC., a Florida limited
company, known to be the individual described in, or who produced __________________ as
identification, and who executed the foregoing instrument, and acknowledged before me that he
executed the same as his free act and deed for the purposes therein expressed.
WITNESS my hand and official seal at _____________________, said County and State,
this ______ day of ________________, 2010.
Notary Public
Print Name _________________________
My Commission Expires:
Attachment number 4
Page 15 of 16
Item # 3
16
EXHIBIT “A”
Lots 5 and 6 of EARLL AND TATE’S SUBDIVISION, according to the map or plat thereof as
recorded in Plat Book 1, page 20, of the Public Records of Hillsborough County, Florida, of
which Pinellas County was formerly a part.
42895901v1
Attachment number 4
Page 16 of 16
Item # 3
EXHIBIT D
Memorandum of Development Agreement
[Peter Gillham’s Nutritional Center, LLC café/grocery]
This Memorandum of Development Agreement (“Memorandum”) is made this
___ day of ___________, 200__, by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public
body corporate and politic of the State of Florida (the “Agency”), whose address is 112
S. Osceola Avenue, Clearwater, FL 33756, and MAINSTREET CLEARWATER
DEVELOPMENT, L.L.C., a Florida limited liability company ("Developer"), whose
address is 400 Cleveland St., Suite 200, Clearwater, FL 33755.
This Certificate pertains to a Development Agreement (Peter Gillham’s Nutritional
Center, LLC café/grocery) by and between the Agency and the Developer, dated as of
________________, 20__ (the “Development Agreement”), which provides, among
other things, for the construction of the Peter Gillham’s Nutritional Center, LLC
café/grocery 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, the parties hereto have set their hands and their
respective seals affixed as of the ____ day of ____________, 20__.
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF
CLEARWATER, FLORIDA
By: __________________________
Frank V. Hibbard
Chairperson
Approved as to form: Attest:
________________________ ______________________________
Pamela K. Akin Rosemarie Call
City Attorney City Clerk
Attachment number 5
Page 1 of 2
Item # 3
MAINSTREET CLEARWATER DEVELOPMENT,
LLC,
a Florida limited liability company
Witnesses:
BY:____________________________________
_________________________ Kevin Burke, its Managing Member
_________________________
ATTEST:
By:___________________________________
Secretary
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _____ day of
_______________, 20__, by Kevin Burke, Managing Member of Mainstreet Clearwater
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:
Attachment number 5
Page 2 of 2
Item # 3
EXHIBIT E
Agreement Expiration Certificate
[Peter Gillham’s Nutritional Center, LLC café/grocery]
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 MAINSTREET CLEARWATER
DEVELOPMENT, L.L.C., a Florida limited liability company ("Developer"), whose
address is 400 Cleveland St., Ste. 200, Clearwater, FL 33755.
This Certificate pertains to an Amended and Restated Development Agreement
(Clearwater Centre 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 Peter Gillham’s Nutritional Center, LLC
café/grocery 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 Peter
Gillham’s Nutritional Center, LLC café/grocery 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 ___________, 20__.
[SIGNATURE PAGES FOLLOW]
Attachment number 6
Page 1 of 2
Item # 3
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF
CLEARWATER, FLORIDA
By: __________________________
Frank V. Hibbard
Chairperson
Attest:
______________________________
Rosemarie Call
City Clerk
MAINSTREET CLEARWATER DEVELOPMENT,
L.L.C., a Florida limited liability company
Witnesses:
BY:____________________________________
_________________________ Kevin Burke, its Managing Member
_________________________
ATTEST:
By:___________________________________
Secretary
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _____ day of
_______________, 20__, by Kevin Burke, Managing Member of Mainstreet Clearwater
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:
Attachment number 6
Page 2 of 2
Item # 3
EXHIBIT "F"
AGREEMENT TERMINATION CERTIFICATE
[Mainstreet Clearwater, LLC “Peter Gillham’s Nutritional Center, LLC café/grocery]
This Agreement Termination Certificate ("Certificate") is made this ___ day of
_______________, ____, by and between the COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of
Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL 32521, and
MAINSTREET CLEARWATER DEVELOPMENT, LLC, a Florida limited liability company (the
"Developer"), whose address is 400 Cleveland St., Suite 200, Clearwater, FL 33755.
This Certificate pertains to a Development Agreement (Clearwater Centre
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 Peter Gillham’s
Nutritional Center, LLC café/grocery 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 Peter Gillham’s Nutritional
Center, LLC café/grocery 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:
______________________________
Attachment number 7
Page 1 of 2
Item # 3
Rosemarie Call
City Clerk
MAINSTREET CLEARWATER DEVELOPMENT, L.L.C.,
a Florida limited liability company
Witnesses:
BY:____________________________________
_________________________ Kevin Burke, its Managing Member
_________________________
ATTEST:
By:___________________________________
Secretary
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _____ day of
_______________, 200__, by Kevin Burke, Managing Member of Mainstreet Clearwater
Developent, L.L.C., a Florida limited liability company, on behalf of such limited liability
company. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
_____________________________
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
Attachment number 7
Page 2 of 2
Item # 3
Community Redevelopment
Agency Agenda
Council Chambers - City
Hall
Meeting Date:9/20/2010
SUBJECT / RECOMMENDATION:
Approve second amendment to Development Agreement between the Clearwater Redevelopment Agency and Clearwater Espacio
Development, LLC, and authorize the appropriate officials to execute same.
SUMMARY:
On January 24, 2007, the CRA entered into a Development Agreement to develop certain parcels of real estate on the northeast
corner or Cleveland Street and Martin Luther King, Jr. Avenue, known as Clearwater Centre.
On May 15, 2007, the CRA approved an assignment of the Development Agreement from the original Developer, Clearwater
Centre, LLC, to Clearwater Espacio Development, LLC.
Construction was commenced on the project, but has since stopped. Clearwater Espacio Development is planning on recommencing
construction, and is requesting an extension of the required completion date to October 1, 2012, and a change in the form of the
Security For Developer's Performance from a Performance Mortgage to a Letter of Credit.
Type:Other
Current Year Budget?:None Budget Adjustment:None
Budget Adjustment Comments:
Current Year Cost:Annual Operating Cost:
Not to Exceed:Total Cost:
For Fiscal Year: to
Review
Approval:
1) Office of Management and Budget 2) Legal 3) Clerk 4) Assistant City Manager ED 5) Clerk 6) City
Manager 7) Clerk
Cover Memo
Item # 4
AMENDED 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 III, 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 Agreement”) 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 "Property").
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 ("Espacio").
C. Pursuant to that certain Assignment of Development Agreement (the "Assignment"),
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.
Attachment number 1
Page 1 of 27
Item # 4
2
(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
Attachment number 1
Page 2 of 27
Item # 4
3
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.
(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.
Attachment number 1
Page 3 of 27
Item # 4
4
(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
Attachment number 1
Page 4 of 27
Item # 4
5
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.
(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.
Attachment number 1
Page 5 of 27
Item # 4
6
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 Muñoz.
(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.
Attachment number 1
Page 6 of 27
Item # 4
7
(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.
(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. Concurrency.
(a) The parties hereto recognize and acknowledge that Florida law (specifically, Part II,
Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, collectively the “Growth
Management Act”) impose restrictions on development if adequate public improvements are not available
concurrently with that development to absorb and handle the demand on public services caused by that
development. The City has created and implemented a system for monitoring the effects of development
on public services within the City. The Developer recognizes and acknowledges it must satisfy the
concurrency requirements of Florida law as applied to the 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.
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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.
(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.
3. 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.
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(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
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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. Completion Certificate.
(a) (1) Upon the substantial completion of the construction of the Project in accordance
with the provisions of this Article 5, the Developer shall prepare and execute the Completion Certificate,
which shall then be delivered to the Agency. Upon receipt of the certificate the Agency shall promptly
and diligently proceed to determine if construction of the Project has been completed substantially in
accordance with the Project Plans and Specifications and this Agreement. Upon making such a
determination, the Agency shall execute the certificate and return it to the Developer. The date of the
Completion Certificate shall be the date when all parties shall have executed said certificate.
(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.
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5.05. Agency Not in Privity with Contractors. The Agency shall not be deemed to be in privity
of contract with any Contractor or provider of goods or services with respect to the construction of any
part of the Project.
5.06. Security for Developer’s Performance. In consideration of the advancements,
reimbursements and payments made by the Agency pursuant to Article 6 hereof, Developer shall provide
a 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
(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 Payment 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 Streetscape / Landscape 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
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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
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.
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(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
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
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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 163, Florida Statutes
(known as the Community Redevelopment Act of 1969), has all requisite corporate power and authority
to carry on its business as now conducted and to perform its obligations hereunder and under each
document or instrument contemplated by this Agreement to which it is or will be a party.
(b) This Agreement and, to the extent such documents presently exist in form accepted by
the Agency and the Developer, each document contemplated or required by this Agreement to which the
Agency is or will be a party have been duly authorized by all necessary action on the part of, and have
been or will be duly executed and delivered by, the Agency, and neither the execution and delivery
thereof, nor compliance with the terms and provisions thereof or hereof (1) requires the approval and
consent of any other party, except such as have been duly obtained or as are specifically noted herein, (2)
contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding
on the Agency, (3) contravenes or results in any breach of, or default under or, other than as contemplated
by this Agreement, results in the creation of any lien or encumbrance upon any property of the Agency
under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances,
resolutions or, on the date of this Agreement, any other agreement or instrument to which the Agency is a
party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the
Agency outstanding on the Effective Date.
(c) This Agreement and, to the extent such documents presently exist in form accepted by
the Agency and the Developer, each document contemplated or required by this Agreement to which the
Agency is or will be a party constitute, or when entered into will constitute, legal, valid and binding
obligations of the Agency enforceable against the Agency in accordance with the terms thereof, except as
such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws
from time to time in effect which affect creditors' rights generally and subject to usual equitable principles
in the event that equitable remedies are involved.
(d) There are no pending or threatened actions or proceedings before any court or
administrative agency against the Agency, or against any officer of the Agency, which question the
validity of any document contemplated hereunder, or which are likely in any case, or in the aggregate, to
materially adversely affect the consummation of the transactions contemplated hereunder or the financial
condition of the Agency.
8.02. Covenants. The Agency covenants with the Developer that until the earlier of the
Termination Date or the Expiration Date:
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(a) The Agency shall timely perform or cause to be performed all of the obligations
contained herein which are the responsibility of the Agency to perform.
(b) During each year that this Agreement and the obligations of the Agency under this
Agreement shall be in effect, the Agency shall cause to be executed and to continue to be in effect those
instruments, documents, certificates, permits, licenses and approvals, and shall cause to occur those
events contemplated by this Agreement that are applicable to and are the responsibility of the Agency.
(c) The Agency shall assist and cooperate with the Developer to accomplish the development
of the Project in accordance with this Agreement and the Project Plans and Specifications, will carry out
its duties and responsibilities contemplated by this Agreement, and will not violate any laws, ordinances,
rules, regulations, orders, contracts, or agreements that are or will be applicable thereto, and, to the extent
permitted by law, the Agency will not enact or adopt or urge or encourage the adoption of any ordinances,
resolutions, rules, regulations or orders or approve or enter into any contracts or agreements, including
issuing any bonds, notes, or other forms of indebtedness, that will result in any provision of this
Agreement to be in violation thereof.
(d) The Agency shall 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
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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
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 9.01, there shall be an “event
of default” by the Agency under this Agreement in the event the Agency shall fail to perform or comply
with any material provision of this Agreement applicable to it; provided, however, that suspension of or
delay in performance by the Agency during any period in which the Developer is in default of this
Agreement as provided in Section 9.01 hereof will not constitute an event of default by the Agency under
this subsection (a).
(b) If an event of default by the Agency described in subsection (a) shall occur, the
Developer shall provide written notice thereof to the Agency, and, after expiration of the curative period
described in paragraph (c) below, may terminate this Agreement, institute an action to compel specific
performance of the terms hereof by the Agency or pursue any and all legal or equitable remedies to which
the Developer is entitled; provided, however, if the event of default by the Agency occurs on or prior to
the Commencement Date, any monetary recovery by the Developer in any such action shall not include
any lost profits or consequential damages and shall be limited to bona fide third-party out-of-pocket costs
and expenses, including reasonable attorneys' fees, incurred by the Developer in connection with the
negotiation of this Agreement as well as any investigation, due diligence, development, design or
construction costs incurred by the Developer in connection with the proposed acquisition and
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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,
however, if the Agency shall fail to cure such event of default within said thirty (30) day or longer period
or ceases to proceed diligently to timely cure such event of default, then the Developer may proceed with
its available remedies without providing any additional notice to the Agency.
(d) Any attempt by the Developer to pursue any of the remedies referred to in paragraphs (a),
(b), or (c) above will not be deemed an exclusive election of remedy or waiver of the Developer's right to
pursue any other remedy to which it might be entitled.
(e) Any time periods or deadlines provided in this Agreement shall be tolled or extended by
the amount of time to cure any event of default hereunder if such event affects the Developer's or
Agency's ability to perform by such deadline or the expiration of such period.
9.03. Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to the
contrary, the specified rights and remedies to which either the Agency or the Developer are entitled under
this Agreement are not exclusive and are intended to be in addition to any other remedies or means of
redress to which the Agency or the Developer may lawfully be entitled and are not specifically prohibited
by this Agreement. The suspension of, or delay in, the performance of its obligations by the Developer,
while the Agency shall at such time be in default of their obligations hereunder shall not be deemed to be
an “event of default.” The suspension of, or delay in, the performance of the obligations by the Agency
while the Developer shall at such time be in default of its obligations hereunder shall not be deemed to be
an “event of default” by the Agency.
9.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of the
Agency or the Developer to promptly or continually insist upon strict performance of any term, covenant,
condition or provision of this Agreement, or any Exhibit hereto, or any other agreement, instrument or
document of whatever form or nature contemplated hereby shall not be deemed a waiver of any right or
remedy that the Agency or the Developer may have, and shall not be deemed a waiver of a subsequent
default or nonperformance of such term, covenant, condition or provision.
9.05. Termination.
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(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;
(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
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matter arising from or as a result of this Agreement or any actions taken by the Developer and the
Agency, or any of them, hereunder or contemplated hereby, and each party shall be responsible for its
own costs.
(e) Notwithstanding anything to the contrary contained herein, in the event that any party
shall have, but shall not exercise, the right hereunder to terminate this Agreement because of the
non-satisfaction of any condition specified herein, and such condition is subsequently satisfied, then the
non-satisfaction of such condition shall no longer be the basis for termination of this Agreement.
9.06. Termination Certificate.
(a) In the event of a termination of this Agreement as provided in 9.05 prior to the Expiration
Date, each of the parties hereto do covenant and agree with each other to promptly execute a certificate
prepared by the party electing to terminate this Agreement, which certificate shall expressly state that this
Agreement has been terminated in accordance with its terms, is no longer of any force and effect except
for those provisions hereof which expressly survive termination, that the rights, duties and obligations of
the parties hereto have been terminated and released (subject to those surviving provisions hereof,
including but not limited to paragraph 5.06) and that the Site is no longer subject to any restrictions,
limitations or encumbrances imposed by this Agreement.
(b) The certificate described in subsection (a) shall be prepared in a form suitable for
recording and promptly after execution by all of the parties hereto shall be recorded in the public records
of Pinellas County, Florida. The cost of recording the termination certificate shall be paid by the
terminating party.
9.07 Remedies. All remedies provided for herein and under Florida law shall be cumulative
and shall survive the technical termination of this Agreement pursuant to execution, delivery and
recordation of a Termination Certificate or otherwise hereunder.
ARTICLE 10. UNAVOIDABLE DELAY.
10.01. Unavoidable Delay.
(a) Any delay in performance of or inability to perform any obligation under this Agreement
(other than an obligation to pay money) due to any event or condition described in paragraph (2) as an
event of “Unavoidable Delay” shall be excused in the manner provided in this Section 10.01.
(b) “Unavoidable Delay” means any of the following events or conditions or any
combination thereof: acts of God, acts of the public enemy, riot, insurrection, terrorist attack, war,
pestilence, archaeological excavations required by law, unavailability of materials after timely ordering of
same, epidemics, quarantine restrictions, freight embargoes, fire, lightning, hurricanes, earthquakes,
tornadoes, floods, extremely abnormal and excessively inclement weather (as indicated by the records of
the local weather bureau for a five-year period preceding the Effective Date), strikes or labor
disturbances, delays due to proceedings under 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).
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(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
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.
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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: To the Agency:
Clearwater Espacio Development, LLC Community Redevelopment Agency of
1100 Cleveland Street the City of Clearwater
Clearwater, Florida 33755 112 S. Osceola Avenue
Clearwater, FL 33756
Attention: Alberto Muñoz Attention: Rod Irwin
FAX # (305) 704-7907 FAX # (727) _________________
with copies to: with copies to:
Holland & Knight LLP City of Clearwater
701 Brickell Avenue, Suite 3000 112 S. Osceola Avenue
Miami, FL 33131 Clearwater, FL 33756
Attention: Alberto M. Hernandez, Esq. Attention: City Attorney
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.
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(b) Each party to this Agreement hereby submits to the jurisdiction of the State of Florida,
Pinellas County and the courts thereof and to the jurisdiction of the United States District Court for the
Middle District of Florida, for the purposes of any suit, action, or other proceeding arising out of or
relating to this Agreement and hereby agrees not to assert by way of a motion as a defense or otherwise
that such action is brought in an inconvenient forum or that the venue of such action is improper or that
the subject matter thereof may not be enforced in or by such courts.
(c) If at any time during the term of this Agreement the Developer is not a resident of the
State of Florida or has no office, employee, agency or general partner thereof available for service of
process as a resident of the State of Florida, or if any permitted assignee thereof shall be a foreign
corporation, partnership or other entity or shall have no officer, employee, agent, or general partner
available for service of process in the State of Florida, the Developer hereby designates the Secretary of
State, State of Florida, its agent for the service of process in any court action between it and the Agency
arising out of or relating to this Agreement and such service shall be made as provided by the laws of the
State of Florida for service upon a non-resident; provided, however, that at the time of service on the
Florida Secretary of State, a copy of such service shall be delivered to the Developer at the address for
notices as provided in Section 11.03
11.07. Agreement Not a Chapter 86-191, Laws of Florida, Development Agreement. The
Developer and the Agency acknowledge, agree and represent that this Agreement, including, without
limitation, any of the Exhibits, is not a development agreement as described in Sections 19-31, Chapter
86-191, Laws of Florida, codified as Sections 163.3220-163.3243, Florida Statutes.
11.08. Estoppel Certificates. The Developer and the Agency shall at any time and from time to
time, upon not less than ten (10) days prior notice by another party hereto, execute, acknowledge and
deliver to the other parties a statement in recordable form certifying that this Agreement has not been
modified and is in full force and effect (or if there have been modifications that the said Agreement as
modified is in full force and effect and setting forth a notation of such modifications), and that to the
knowledge of such party, neither it nor any other party is then in default hereof (or if another party is then
in default hereof, stating the nature and details of such default), it being intended that any such statement
delivered pursuant to this Section 11.08 may be relied upon by any prospective purchaser, mortgagee,
successor, assignee of any mortgage or assignee of the respective interest in the Project, if any, of any
party made in accordance with the provisions of this Agreement.
11.09. Complete 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.
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11.10. Captions. The article and section headings and captions of this Agreement and the table
of contents preceding this Agreement are for convenience and reference only and in no way define, limit,
describe the scope or intent of this Agreement or any part thereof, or in any way affect this Agreement or
construe any article, section, subsection, paragraph or provision hereof.
11.11. Holidays. It is hereby agreed and declared that whenever a notice or performance under
the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal holiday
observed in the City, it shall be postponed to the next following business day.
11.12. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of
this Agreement. The Exhibits and any amendments or revisions thereto, even if not physically attached
hereto shall be treated as if they are part of this Agreement.
11.13. No Brokers. The Agency and the Developer hereby represent, agree and acknowledge
that no real estate broker or other person is entitled to claim or to be paid a commission as a result of the
execution and delivery of this Agreement, including any of the Exhibits, or any proposed improvement,
use, disposition, lease, conveyance or acquisition of any or all of the Site.
11.14. Not an Agent. During the term of this Agreement, the Developer hereunder shall not be
an agent of the City or the Agency, with respect to any and all services to be performed by the Developer
(and any of its agents, assigns, or successors) with respect to the Project, and the Agency is not an agent
of the Developer (and any of its agents, assigns, or successors).
11.15. Memorandum of Development Agreement. The Agency and the Developer agree to
execute, in recordable form, on the Effective Date, the short form “Memorandum of Agreement for
Development,” the form of which is attached hereto as Exhibit D , and agree, authorize and hereby direct
such Memorandum to be recorded in the public records of Pinellas County, Florida, as soon as possible
after execution thereof. The Agency shall pay the cost of such recording.
11.16. Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills
and is pursuant to and for a public purpose and municipal purpose and is in the public interest, and is a
proper exercise of the Agency's power and authority under the Act.
11.17. No General 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
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to execute any required instruments, to make and incorporate such amendment to this Agreement or any
Exhibit attached hereto or any other agreement contemplated hereby.
11.19. Term; Expiration; Certificate.
(a) If not earlier terminated as provided in Section 9.05, the term of this Agreement shall
expire and this Agreement shall no longer be of any force and effect (except for those matters which
specifically survive such expiration) on the tenth (10th) anniversary of the Effective Date.
(b) Upon completion of the term of this Agreement, all parties hereto shall execute the
Agreement Expiration Certificate. The Agreement Expiration Certificate shall constitute (and it shall be
so provided in the certificate) a conclusive determination of satisfactory completion of all obligations
hereunder and the expiration of this Agreement.
(c) The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records of Pinellas County, Florida. Following execution by all of the parties
hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer in the public
records of Pinellas County, Florida, and the Developer shall pay the cost of such recording.
11.20. Effective Date. Following execution of this Agreement (and such of the Exhibits as are
contemplated to be executed simultaneously with this Agreement) by the authorized officers of the
Agency and by authorized representatives of the Developer following approval hereof by the Agency and
the Developer, this Agreement (and any executed Exhibits) shall be in full force and effect in accordance
with its terms and upon the recording of the Memorandum of Development Agreement as contemplated
by Section 11.15 hereof.
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals
affixed as of this _______ day of September, 2010.
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
By: __________________________
Frank V. Hibbard
Chairperson
Approved as to form: Attest:
________________________ ______________________________
Pamela K. Akin Cynthia E. Goudeau
City Attorney City Clerk
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CLEARWATER ESPACIO DEVELOPMENT, LLC,
a Florida limited liability company
Witnesses:
By: ______________________________________
_________________________ _________________, its __________________
_________________________
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _____ day of _______________,
2010, by ______________, as _______________, of Clearwater Espacio Development, LLC, 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:
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EXHIBIT A
LEGAL DESCRIPTION
[TO BE FURNISHED]
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LIST OF EXHIBITS
EXHIBIT A -- Legal Description
EXHIBIT B -- Site Plan
EXHIBIT C -- Letter of Credit
EXHIBIT D -- Memorandum of Agreement for Development
EXHIBIT E -- Agreement Expiration Certificate
EXHIBIT F -- Agreement Termination Certificate
EXHIBIT G -- Utility Relocation Plan
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EXHIBIT D
Memorandum of Development Agreement
[Clearwater Centre]
This Memorandum of Development Agreement (“Memorandum”) is made this
___ day of ___________, 200__, 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., Ste. 101, Clearwater, FL 33755.
This Certificate pertains to an Amended and Restated Development Agreement
(Clearwater Centre 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 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, the parties hereto have set their hands and their
respective seals affixed as of the ____ day of ____________, 200__.
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF
CLEARWATER, FLORIDA
By: __________________________
Frank V. Hibbard
Chairperson
Approved as to form: Attest:
________________________ ______________________________
Pamela K. Akin Rosemarie Call
City Attorney City Clerk
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CLEARWATER CENTRE, L.L.C.,
a Florida limited liability company
Witnesses:
BY:____________________________________
_________________________ _____________________, its ______________
_________________________
ATTEST:
By:___________________________________
Secretary
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _____ day of
_______________, 200__, 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:
Attachment number 4
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EXHIBIT E
Agreement Expiration Certificate
[Clearwater Centre]
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
(Clearwater Centre 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 Clearwater Centre 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
Clearwater Centre 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]
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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:
BY:____________________________________
_________________________ ____________________, its ________________
_________________________
ATTEST:
By:___________________________________
Secretary
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _____ day of
_______________, 200__, 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:
Attachment number 5
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EXHIBIT "F"
AGREEMENT TERMINATION CERTIFICATE
[Clearwater Centre]
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
(Clearwater Centre 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 Clearwater Centre
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
Attachment number 6
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CLEARWATER ESPACIO DEVELOPMENT, L.L.C.,
a Florida limited liability company
Witnesses:
BY:____________________________________
_________________________ ________________________, its Executive Member
_________________________
ATTEST:
By:___________________________________
Secretary
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _____ day of
_______________, 200__, 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:
Attachment number 6
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Attachment number 7
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Attachment number 7
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DRAFT OF STANDBY LETTER OF CREDIT
Date:
Beneficiary:
Letter of Credit No. ___________
By order of our client, Clearwater Espacio Development, LLC, a Florida limited liability company
(the “Applicant”), we hereby open our irrevocable Standby Letter of Credit No.______________, in
your favor for an amount not to exceed in aggregate USD $425,000.00 (Four Hundred Twenty Five
Thousand Dollars and 00/100), effective immediately and expiring at the office of our Servicer,
Citicorp North America, Inc. at 3800 Citibank Center, Building B, 3rd Floor, Tampa, Florida 33610
Attn. Standby Letter of Credit Unit or such other office located in the State of Florida as we may
advise you from time to time (the “Office”), on _________________.
Funds hereunder are available to you against presentation of your Sight Draft(s), drawn on us,
mentioning thereon our Letter of Credit Number ________________, accompanied by your written
and dated Statement, purportedly signed by an authorized officer of your company, stating the
following:
“The undersigned, authorized representative of the beneficiary hereby certifies that Clearwater
Espacio Development, LLC ("Developer") is in default of its obligations under that certain Amended
and Restated Development Agreement dated September __, 2010 (herein called the “Contract”) by and
between Developer and the Community Redevelopment Agency of the City of Clearwater, Florida (the
"Agency"). Developer has failed to deliver or committed a material breach of its obligations under the
Contract and has failed to correct such default condition(s). The Agency has complied with all
contractual obligations and is therefore entitled to draw $ (amount) under standby letter of credit
number {number} .”
We hereby agree to honor each Draft drawn under and in compliance with the terms and conditions
of this Letter of Credit if presented, as specified, at our Office on or before expiration date.
Should you have occasion to communicate with us regarding this Letter of Credit, please direct your
correspondence to our Office, making specific mention of the Letter of Credit number indicated
above.
Except as far as otherwise expressly stated herein, this Standby Letter of Credit is subject to the
International Standby Practices (“ISP98”), International Chamber of Commerce, Publication No.
590, and as to matters not governed by the ISP98, shall be governed by and construed in accordance
with the laws of the State of New York and applicable U.S. Federal Law.
Attachment number 8
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