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ESTABLISHMENT OF THE GROW CLEARWATER FUND J I AGREEMENT BYAND BETWEEN THE CITY OF CLEARWATER AND THE NATIONAL DEVELOPMENT COUNCIL Part I THIS AGREEMENT, entered into as of the 1 st of November, 1997 and ending the 31 st of October, 1998, by and between the City of Clearwater, Florida, a municipal corporation organized and existing under the laws of the State of Florida (hereinafter referred to as the "City"), and the National Development Council (hereinafter referred to as "NDC"), a not-for-profit corporation organized and existing under the laws of the State of New York and having principal offices at 51 East 42nd Street, New York, New York. WITNESSETH THAT: WHEREAS, the City desires to expand economic opportunity for residents of Clearwater so that these residents may become economically self-sufficient; and WHEREAS, the City desires to encourage sustainable community development activities so that neighborhoods can revitalize themselves; and WHEREAS, the City has determined that it needs the professional services of an advisor to work with the City to develop and assist in the implementation of the Community and Economic Development Programs; and, WHEREAS, National Development Council desires and is willing to assist the City to achieve its goals to expand economic opportunity and revitalize its neighborhoods; and, WHEREAS, the City has selected NDC and NDC has agreed to perform the services set forth hereunder; and, WHEREAS, the compensation to be paid NDC is comparable to compensation normally paid for such services by other communities which have retained the services ofNDC; NOW, THEREFORE, the City and NDC hereby agree as follows: SECTION 1: EMPLOYMENT 101. The City hereby employs NDC and NDC hereby agrees to perform the services set forth herein in accordance with the stated terms and conditions for the consideration set forth in Section 5. 102. The City hereby designates the Housing and Urban Development Department to administer this Agreement in behalf of the City. () ) i , / I I 103. The person responsible for the services to be rendered on behalf of the NDC may be designated in writing by NDC and accepted by the City. 104. The City authorizes NDC to subcontract with Grow America Fund, Inc. (GAF) which will assist the City in creating a self sustaining community economic development loan pool for Clearwater businesses referred for consideration by the City to be known as the Grow Clearwater Fund (GCF). NDC will be authorized to direct GAF to originate loans utilizing equity funds committed to NDC by the City and use its SBLC license to make SBA guaranteed loans and provide staff to operate the Grow Clearwater Fund in conjunction with local staff to be provided by the City. In addition, at the City's option, NDC will authorize GAF to reinvest loan repayments less approved expenses into Grow Clearwater Fund. SECTION 2: SCOPE OF SERVICES 201. NDC shall perform the services set forth under this Agreement in a satisfactory manner, as determined by the City. NDC shall make such revision or modifications to its work, at its own cost and expense, as may be required by the City; provided, however, NDC shall not be required to make revisions at its sole cost and expense where the revisions are based in considerations outside the scope of services initially given to NDC. 202. In performing the services required under this Agreement, NDC shall consult with the staff of the City, and shall meet, as appropriate, with other employees or City officials and with other persons or entities, as necessary, including State and Federal officials and/or neighborhood groups or organizations 203. NDC offers the City a full scope of economic, community, and housing development services and training. The City will select the services, the timing and order of the delivery of the services, and the degree to which the services are provided. The City, in its sole discretion, will determine the adequacy of the services provided and may add or delete services as it sees fit. The initial tasks comprising this Agreement may include, but need not be limited to the following: I I 203.1 Training To improve the analytical, financial and structuring skills of City staff and staff or non-profit community-based organizations (as designated by the City) involved in the various State and Federal community and economic development programs as well as develop their abilities to communicate and negotiate effectively with lenders, developers, and equity investors so that projects move quickly to completion, NDC shall make available I (one) pre- paid scholarship (consisting of up to one work of training) in its version of its HousinglEconomic Development Finance Professional (H/EDFP) Training Program. The curriculum will be specific sections of NDC's (combined) seven (7) week H/EDFP Program and NDC shall work with the City to select those areas most appropriate for staff training. The full curriculum includes: a. Financing Principles Credit analysis Ratio analysis Cash flow/repayment ability b. Structuring Development Financing GAP Filling Problem solving Negotiation User financing Investor fmancing c. Financing Affordable Housing Single Family Multiple- Family d. Financing Programs Conventional HUD SBA Other (TBD) Training will be conducted in a classroom style in designated areas across the country. The emphasis is on the analysis of case studies of real development projects that NDC staff has structured and implemented in conjunction with client communities across the country. I I 203.2 Community Based Housing Development Organization (CHDO) At the City's election, NDC will provide technical assistance to up to two CHDO's of the City's choosing. The cost of this assistance will be underwritten by the U.S. Department of Housing and Urban Development. HUD will compensate NDC for providing this technical assistance to the CHDO's and the City will bear no cost of this assistance. 203.3 Small Business Lending Company (Grow America Fund)!Communitv Development Finance Institution (SBLC/CDF) Pursuant to Section 104, NDC shall execute a sub-contractual agreement with The Grow America Fund, Inc. which will assist the City in establishing a self-sustaining community economic development loan pool for Clearwater businesses referred for consideration by the City, said RLF shall be known as the "Grow Clearwater Fund." NDC will direct and oversee, under its sub- contractual agreement with GAF, that the activities listed below are performed. The Subcontractor Agreement will require GAF to incorporate all applicable U.S. HUD and SBA requirements and regulations. NDC will authorize GAF to use its SBLC license to make SBA guaranteed loans sponsored by Grow Clearwater Fund and operate Grow Clearwater Fund in conjunction with the local staff provided by the City in a prudent and businesslike manner. GAF will perform the following services: . assist in marketing the Grow Clearwater Fund program; . assist in originating and packaging loans; . obtain GAF and SBA approvals; . close, service, and collect loans; . perform annual reviews of each loan; . perform the fiduciary responsibilities; . . provide periodic reporting to the City; and The City shall provide at least one (I) full time local staff person to coordinate the Grow Clearwater Fund. Local staff will assist to market the program, originate loan applications, and assist in closing and servicing loans. 203.4 Special Proiects NDC shall assist the City through a mutually agreed upon "due diligence process" resulting in a financial and/or organizational analysis and recommendation for action regarding: a. Development of structure and application for a citywide Section 108 loan b. Development of policies and procedures to include the City in NDC's "Environmental Economic Development Initiative" through the Center for Environmental Economic Development and the U.S. Department of Commerce Economic Development Administration. c. Other projects as mutually agreed upon by NDC and the City I J' 203.5 CommunitylEconomic Development NDC will assist the City in the development and implementation of financing programs, financial review, and packaging for development projects as determined by the City. At the City's election, assistance can include, but need not be limited to; a. Participation in negotiations and meeting between the client and. developers, analysis of financing feasibility, and implementation of financing alternatives for developers located in proposing to locate the City. b. Meeting with private and public sector financing sources and negotiating with related parties. c. Introducing, as appropriate, developers to the City (NDC maintains working relationships with numerous national and regional development groups as a consequence of its other contract relationships). d. Providing training to City staff on development finance issues and technical aspects of project development through informal on-site training and reduced tuition for City personnel in NOC's Economic Development Professional Certification Program as outlined above. e. Providing organizational training to key board members, non-profit neighborhood and development corporations, and other key participants in economic development process on issues of doing development. 203.6 Other Services NDC offers a full range of community and economic development, and housing services which are available to the City. These services may include but not need be limited to the following: a. Establish City/NDC joint venture program for industrial and commercial development projects through NDC Housing and Economic Development Corporation (HEDC) and Community Development Group, Inc. (COG). b. Establish City participation in NDC's 501 (c) (3) Bond and Donation Program. c. Establish City participation in NDC's "Affordable Home-Ownership Program" through NDC Housing and Economic and Economic Development Corporation (NDC HEOC). d. Establish City participation in NDC's "Corporate Equity Fund." e. Establish City participation in all other programs as developed and introduced by NDC during the contract term. SECTION 3: INFORMATION TO BE FURNISHED TO NDC 301. The City shall provide NOC with all documents, data, and other materials in its possession appropriate to the services to be performed hereunder and will use its best efforts to secure materials or information from other sources requested by NDC for the purpose of carrying out services under this Agreement. SECTION 4: TIME OF PERFORMANCE 401. NDC shall perform the services set forth in Section 2 of this Agreement in the period commencing November 1, 1997 and ending October 31, 1998. 402. This Agreement shall remain in effect until October 31, 1998, unless otherwise terminated or extended by the parties hereto, by giving the other part forty eight (48) hours written notice. SECTION 5: COMPENSATION 501. The City shall compensate NDC for satisfactory performance of the services set forth in Section 2 of this Agreement in the amount of Forty Thousand Five Hundred Dollars and no cents ($40,500.00), ("The Base Contract Amount"). Payments shall be made at the rate of$3,375.00 per month, due and payable on the first of each month. 502. Payments to NDC under this Agreement shall be made by the City upon approval of payment requisitions certified by a principal ofNDC submitted not more often than once a month. Each requisition shall be in a form acceptable to the City, and shall set forth the compensation due NDC based upon the fee amount set forth in Section 501. 503. Compensation provided under this Section 5 constitutes full and complete payment for all costs assumed by NDC in performing this Agreement including but not limited to: salaries; consultant fees; costs of materials and supplies; printing and reproduction; meeting, consultations, and presentations; travel expenses, postage; telephone; and similar expenses. No direct costs shall be reimbursed by the City. 504. The Grow Clearwater Fund will be capitalized with equity funds provided by the City. These funds will be used solely for eligible SBA guaranteed loans within the City, which are sponsored by the City and neighborhood community development organizations and which meet the purposes of job creation, increased investment, or the elimination of blight as determined by the City. Under this Agreement, the City subject to City Commission approval authorizes to commit an investment of $100,000 into the Grow Clearwater Fund. NDC. will match this investment with an additional $100,000. NDC anticipates that this $200,000 of invested capital will create an approximately $ 1,000,000 community economic development finance bank. NDC will be authorized to submit to the City invoices for the disbursement of said fund to NDC for GAF, in an amount equal to the loan commitments made by GAP for which loan funds have not been previously disbursed by the City. All invoices for said funds will be accompanied by commitment documents and other reporting requirements, which shall substantiate the amount of loan funds requested in the accompanying invoice. All invoices are to be initiated by NDC I I 609. Except as otherwise specifically provided in this Agreement, whenever under this Agreement approvals, authorizations, determinations, satisfactions or waivers are required or permitted, such approvals, authorizations, determinations, satisfactions or waivers shall be effective and valid only when given in writing signed by a duly authorized officer of the City of NDC, and delivered in hand or sent by mail, postage prepaid, to the principal officer of the party to whom it is directed, which until changed by written notice from one party to the other, are as follows: NDC: Robert W. Davenport President National Development Council 51 East 42nd Street, Suite 300 New York, New York 10017 CITY: Alan J. Fern, Director Housing and Urban Development Department City of Clearwater P. O. Box 4748 Clearwater, FL 34618 610. NDC agrees to permit at all reasonable times and places an audit of its books and records as these may pertain to this agreement by duly authorized representatives of the City. 611. Notwithstanding any of the provisions of this contract, it is agreed that the City has no financial interest in the business of NDC, and shall not be liable for any debts of obligations incurred by NDC, nor shall the City be deemed or construed to be a partner, joint venturer or otherwise interested in the assets of NDC, or sums earned or derived by NDC, nor shall at any time or times use the name or credit of the City in purchasing or attempting to purchase any car, equipment, supplies or other things whatsoever. 612. NDC, in the performance of its operations and obligations hereunder, shall not be deemed to be the agent of the City, but shall be deemed to be an independent contractor in every respect and shall take all steps at its own expense, as the City may from time to time request, to indicate that it is an independent contractor. 613. NDC agrees that it will comply with Title 6 of the Civil Rights Act of 1964 and shall assure that no person will be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination on the grounds of race, sex, color, national origin or handicap. SECTION 7: TERMINATION 701. With the exception of the terms and conditions for participation on the SBLC program as described in Attachment A, it is understood and agreed that either I I party may cancel this Agreement at any time, for any reason, after forty-eight (48) hours written notice of such cancellation of this agreement prior to the end of the twelve (12) month term hereof. The fees to be paid to NDC shall be pro-rated to the date of cancellation. CITY F CLEARWATER, FLORIDA By: RIta Garvey Mayor-Commissioner Michael J. Roberto City Manager Approved as to form: Attest: ~ John Carassas Assistant City Attorney r ~Ul-.; 2 Ji~. .J)o~__ ~thi~ KGoudeau co'"... ..CityClerk Attest: ~~~ 7'- ~ ./ I I ATTACHMENT A SUB-CONTRACT BY AND BETWEEN THE NATIONAL DEVELOPMENT COUNCIL AND THE GROW AMERICA FUND" INC." FOR THE ESTABLISHMENT OF THE GROW CLEARWATER FUND A B C D E F G SECTION INTRODUCTION I I ATTACHMENT A TABLE OF CONTENTS TITLE RECITALS GENERAL PROVISIONS AND RESPONSIBILITIES GAP AND SBA GUARANTEED LOANS CAPITALIZING GAP-CLEARWATER GAFAD~STRATIVEFEE DISTRIBUTION OF REVENUES DURATION OFAGREEMENTAND DISTRIBUTION OF ASSETS OTHER TERMS AND CONDITIONS I I ATRACHMENT A SUBCONTRACTAGREEMENT BYANDBETWEEN THE NATIONAL DEVEWPMENT COUNCIL AND THE GROW AMERICA FUND, INC. FOR THE ESTABLISHMENT OF THE GROW CLEARWATER FUND INTRODUCTION: RECITALS TillS AGREEMENT entered into as of the 1st day of November 1997 by and between the National Development Council a New York not-for profit corporation with its principal office at 51 East 42nd Street, New York, New York 10017, (hereinafter referred to as the "NDC"), and the Grow America Fund, Inc., a corporation organized and existing under the laws of the State of Delaware and having its principal office at 51 East 42nd Street, New York, New York, 10017 (hereinafter referred to as "GAF") herein contracts to provide Small Business Lending as may be desired, pursuant to the terms and conditions of the attached Agreement, by and between NDC and the City of Clearwater, Florida, a municipal corporation organized and existing under the laws of the State of Florida (hereinafter called the "City'). WIlNESSETH THAT: WHEREAS, the City desires to expand economic opportunity for residents of Clearwater so that these residents may become economically self-sufficient; and, WHEREAS, the City desires to encourage sustainable community development activities so that its various neighborhoods can revitalize themselves; and, WHEREAS, the City desires to establish a community banking partnership known as the Grow Clearwater Fund to achieve these goals; and, WHEREAS, NDC and its sub-contractor, GAF, are desirous and are willing to assist the City to achieve its goals to expand economic opportunity and revitalize its neighborhoods; and, WHEREAS, the City has selected the NDC and NDC with GAF has agreed to perform the services set forth hereunder; NOW, THEREFORE, the NDC and the GAF hereby agree as follows: A. GENERAL PROVISIONS AND RESPONSIBILITIES .< The NDC and GAF, a wholly owned subsidiary of the National Development Council (hereinafter ''NDC'') a national 501 (c) (3) not-for-profit corporation engaged in economic and community development, intend to enter into a contract to create a self-sustaining community development bank (hereinafter "Grow Clearwater Fund for small business financing in the City. I I The purpose of Grow Clearwater Fund is twofold: to create an economic development finance bank which will leverage the City's limited investment capital many times and make loans to eligible small businesses which create jobs and economic opportunity, stimulate investment, or eliminate blight in the target neighborhood; and, to use the net revenues to promote additional investment into or -to fund additional community economic development programs in the target neighborhoods and/or for the benefit of the City's low/moderate income target population. Under the terms of the contract, Grow Clearwater Fund will be capitalized with equity funds provided by the City (as described in Section C below). These funds will be used solely for loans within the City which are sponsored by the City and which meet the purposes of job creation, increased investment, or the elimination of blight as determined by the City or its designee. Under the terms of the contract, GAP will use its SBLC license (as described in Section B below) to make SBA guaranteed loans sponsored by Grow Clearwater Fund, provide staff to operate Grow Clearwater Fund in conjunction with the local staff provided by the City, and provide training and capacity' building services to enhance the ability of local staff to operate the community development bank in a prudent and businesslike manner. Staff provided by GAF will perform the following services: assist in marketing the Grow Clearwater Fund program assist in originating and packaging loans obtain GAF and SBA approvals (as described in Section B below) close, service, and collect loans perform annual reviews of each loan perform the fiduciary responsibilities of the corporation provide periodic reporting to the City provide training and capacity building services to the local staff as agreed with the City. In addition to making loans to small businesses in Clearwater, the intent of this contract is to create a self-sustaining community development fund whose net returns revenues provide a long-term recurring income stream to the City to fund additional community economic development activities as the City elects. In other words, a preferred return will be made to the City in consideration for its equity investment. For providing its services, GAF will be entitled to an underwriting, training, servicing, and management fee as described in Section D below. I I B. GAF AND SBA GUARANTEED LOANS GAF, an SBA licensed and regulated Small Business Lending Company (SBLC) entitled to make SBA guaranteed loans to eligible small businesses, is the nation's only SBLC devoted solely to economic and community development financing. Under the SBLC license agreement, the SBA agrees to guarantee a portion of loans (typically 75%-80%) made by GAF to eligible businesses for eligible business purposes. Each loan must be approved by the SBA. Upon approval, the SBA issues a "Loan Authorization and Guaranty Agreement" which stipulates the terms and conditions of the loan. GAF may sell the guaranteed portion of the loans into a large and active secondary market. By selling the loans into the secondary market, GAP may recapitalize itself many times over. The proceeds of the guaranteed loans which are sold into the secondary market will be used to make additional SBA guaranteed loans in the City or, where appropriate, to pay the expenses of managing and operating the SBLC and servicing the loan portfolio. An SBLC earns revenue in four ways: first, it earns interest on the unguaranteed portion of the loans which are not sold into the secondary market (the retained portion); second, it earns a servicing fee on the portion of the loans which are sold into the secondary market; third, it may earn a one time premium for selling a loan into the secondary market; finally, it will earn interest on cash balances ("idle funds") which are not loaned out to businesses. Under SBA regulations, GAP has a fiduciary responsibility to underwrite, approve, close, and service, and otherwise operate GAF in a prudent and businesslike fashion. In addition, the SBA requires all SBLCs to follow SBA regulations and to use SBA documents and procedures in making and servicing loans. These fiduciary responsibilities and SBA regulations cannot be delegated or waived and they are hereby incorporated by reference into this Agreement. C. CAPITALIZING GROW CLEARWATER FUND As described in Section A above, Grow Clearwater Fund will be capitalized with equity funds provided by the City and the National Development Council. These funds will be used solely for eligible SBA guaranteed loans within the City which are sponsored by the City and neighborhood community development organizations and which meet the purposes of job creation, increased investment, or the elimination of blight as detennined by the City. 1. The Parties agree that GCF will be capitalized with equity provided by the City. These funds will be used solely for eligible SBA-guaranteed loans within the City. 2. The City will invest $100,000 and NDC will match this amount to capitalize the GCF program within sixty (60) day of the effective date of this Agreement. The City may elect to invest additional equity from time to time. Payments made under this section shall be made by check payable to "Grow America Fund"(City of Clearwater, Florida). I I 3. Revenues generated by the financing activities of GCF, including but not limited to, all net interest earned on loans and cash balances (uninvested funds), servicing fees on the portion of loans sold into the secondary market will be credited to GCF and used for program purposes as described in Section D and E below. D. RETURN TO INVESTOR. The GCF will be paid a preferred return on its equity which is invested in small business loans. As of the date this Agreement, the preferred return is three (3%) percent. That return may be changed from time to time at the sole discretion of GAF, but will at all times be the same rate of preferred return as paid to other investors in GAF. E. DISTRIBUTION OF REVENUES Revenues generated by GCF activities will be distributed in the following order: a. First, at the written election of GCF, to pay the "Return to investor" outlined in Section D. Such return may be remitted quarterly to the City, or reinvested into the GCF account, at the discretion of the City; b. Second, the balance will be paid to GAF for the operation of GCF as a GAF Administrative Fee. F. DURATION OF AGREEMENT AND DISTRIBUTION OF ASSETS 1. GENERAL TERM This Agreement will become effective upon its execution by NDC and GAP and shall continue in effect for a period of at least three (3) years to permit the Grow Clearwater Fund program sufficient time to develop into a functioning and successful program. However, the City may direct NDC to terminate this Agreement at anytime prior to the expiration of three (3) years by mutual agreement. After three years, the City may direct NDC to terminate the Agreement with or without cause by giving ninety (90) days prior written notice to NDC of their election to terminate this Agreement. Without limiting such right to terminate, it is the present intent of the parties not to terminate this Agreement if the administrative costs of the Grow Clearwater Fund program are being paid from revenues generated by the program. 2. THE DISTRIBUTION ASSETS Should termination occur GCF program assets (cash and loans outstanding to borrowers) will be distributed and the Agreement will be closed out as provided under this section. The "close-out period" is defined as the period beginning at the date of termination and ending on the date of the last payment of principal and interest by the borrowers. I I Upon the termination of this Agreement, GAF will determine the assets eligible for distribution (hereinafter "Distribution Assets") which will be defined as the total equity invested by the City less any loan losses incurred and any unpaid annual CloseMOut Portfolio Management Fee. The annual Close-Out Portfolio Management Fee will be equal to 2 1/2% of the loan portfolio outstanding for the previous twelve months plus reasonable out of pocket costs incurred in servicing and collecting the outstanding loans, but not less than $5,000 per annum unless otherwise mutually agreed by the City, NDC, and GAF. This fee shall be paid first from the interest and servicing fee revenue generated by GAP from the Grow Clearwater Fund portfolio. If the revenues generated are not sufficient to pay the annual Close-Out Portfolio Management Fee, the unpaid balance will be deducted from the Distribution Assets. The annual Close-Out Portfolio Management Fee will be paid in monthly installments. The pay-out of the Distribution Assets will be made to the City on a quarterly schedule which is tied to the repayment schedule of the loans outstanding in the Grow Clearwater Fund portfolio. The formula will be the percentage, in accordance with this paragraph and 3(a)(b)(c) or (d) below, times the amount of Grow Clearwater Fund net loan repayments received each quarter. "Net loan repayments" is equal to the principal repayment received less the principal due to any secondary market holder(s). In the event that the City's percentage of net loan repayments received is less than the amount calculated in accordance with this paragraph and paragraph 3 below, then GAP will have no further obligation to repay the City. 3. THE AMOUNT OF DISTRIBUTION OF ASSETS In addition, GAP shall receive "incentive compensation" under one of the three methods described below. The City will be entitled to all principal and interest payments and program assets (cash and loans outstanding to borrowers) except as described in Paragraphs 2, 3 ( a), 3 ( b ), and 3 ( c ): a. If GAP terminates the Agreement, or if the City terminates the Agreement and total GCF loans are less than 100% of the equity invested, GAP will not receive any incentive compensation. The principal and interest will be returned to the City as they are paid by the borrowers, net of the Close-out Portfolio Management Fee described in Paragraph 2 above. b. If the City terminates this Agreement and has invested equity in excess of $100,000 and total GCF total loans exceed the amount of the equity invested, then GAP will receive incentive compensation in accordance with the following formula: · If the loans under GCF are less than 200% of the equity invested, GAP's incentive compensation will equal 10% of the equity invested and be paid from servicing fees and debt service payments made by borrowers. I I · If the loans under GCF equal or exceed 200% of the equity invested, GAF's incentive compensation will be 25% of the equity invested and be paid from servicing fees and debt service payments made by borrowers. c. The City shall not be obligated to make payments to GAF beyond. the equity invested into GCF. G. OTHER TERMS AND CONDITIONS 1. Compliance with Law GAF agrees to comply with all applicable federal, state and local laws in the conduct of the work hereunder. GAF accepts full responsibility for payments of all unemployment compensation, insurance premiums, workers compensation premiums, all income. tax deductions, social security deductions, and any and all other taxes or payroll deductions required for all employees engaged by GAF on the performance of the work authorized by this Agreement. 2. Modifications This Agreement may be amended at any time by a written modification. Modifications which affect the rights and obligations of either party shall be executed by NDC and GAF with approval of form and content by the City. 3. Right to Audit The City shall have the right ,during GAF's normal business hours for the duration of this Agreement and for a period of three (3) years after final payment or termination of this Agreement, whichever is later, to conduct the following audits at the GAF office: a. Audits of OAF's performance of services under this Agreement. b. Audits of books and accounts maintained under this Agreement. Such audits shall be performed either by City personnel or by an independent third party whom the City may employ for the purpose of making such audits. The City and OAF shall establish procedures for performing such audits and shall preserve the confidential and proprietary status of audited documents and information. GAF will not required to relocate records form their normal location. GAF will provide copies of OCF records to the GCF local office upon request. I I 4. Assignment Neither this Agreement nor any rights, duties or obligations described herein shall be assigned by either party hereby without the prior expressed written consent oft e other party. 5. Severability and Waiver This Agreement incorporates all the understanding of the parties hereto and IS incorporated into the contract by and between NDC and the City of Clearwater. If any provision of this Agreement is held invalid, the balance of the provisions of this Agreement shall not be affected thereby if the balance of the provisions of this Agreement would then continue to conform to the requirements of the applicable Agreement. Any waiver of the terms and conditions of this Agreement by either of the parties hereto shall not be construed to be a waiver of any other terms or condition of this Agreement. 6. Construction This Agreement shall be construed, interpreted, and the rights of the parties determined, in accordance with the laws of the State of Florida. I I IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. Countersigned: Rita Garvey Mayor-Commissioner Approved as to form: .-:::> ~~ John Carassas Assistant City Attorney ATTESTED ACKNOWLEDGEDMENTOF THE TERMS BY CITY OF CLEARWATER, FLORIDA By: l- Michael J. Roberto City Manager Attest: (~ 'i' ~... '-- c.. ;. g) CYIi ia K Goudeau' ... CitJK:"krk .nOf . AGREED: GROW AMERICA FUND, INC. ATTESTED ~C4~