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SECOND AMENDED AND RESTATED AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY (WATERFRONT PROJECT) BETWEEN CRA AND WALTEMATH INTERESTS, INC. I I I I'. .,,: : '. I I I I I I I I I I I I'-'-~' I . -. - ---- --.. I I-~;-~;---- I I u ,(~c ~ (~~. .~'{}) J! (f) ,":- ~~\, 1/ V~ 3. ;;l-oo :, f'e SECOND AMENDED AND RESTATED AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY (Waterfront Project) between COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PUNTA GORDA, FLORIDA, and WALTEMATH INTERESTS, INC. Originally Dated as of March 7, 1990 and Amended and Restated as of October 4, 1995 Second Amendment and Restatement as of July 16, 1997 I I I I I I I I I I I I I I I 1_- ___ I I I ARTICLE 1. 1. 01 SECOND AMENDED AND RESTATED AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF-PROPERTY (WATERFRONT PROJECT) TABLE OF CONTENTS DEFINITIONS . . . . . . . . .. ...... Definitions ... ..... . . . . . . . . (1) l'Act'l. ... . . . . . . . . . . . . ( 2 ) "Agency"..... ......... ( 3) "Agreement"......... .... (4) "Agreement Expiration Certificate . . . . ( 5 ) "l\greement Termination Certi ficate" ( 6 ) 'f Area II .. . . . . . . . . . . . . . . . (7) "Authorized Representative" . . . . . . . (8) "Building Permit" . ......... (9) "City".... . . . . . . . . . ( 1 0 ) "c i t Y Counc i 1 " ........ . . . . . (11) "Closing Date" .... ....... (12) "Commencement Date" ......... (13) "Commercial Project" . . . . . . (14) "Completion Date" . . . . . . . . . . . . (15) "Construction Completion Certificate" . . (16) "Construction Financing" . . . . (17) "Construction Lender" . ....... (18) "Contractor" ...... ...... (19) "County........... (20) "County Judicial Center Project (21) "County Judicial Center Site (22) "Developer"............... ( 2 3 ) "DRI"....... ......... (24) "Exhibits" .... ... (25) "Existing Submerged Lands Lease" (26) "Expiration Date" (27) "Interlocal Agreement II .... ( 28) II Leas ell. . . . . . . . . (29) "Lease Commencement Date" . . . . . . . . (30) "Marina projectll .... ...... (31) "Marina Project Permitll . ...... (32) "Nesbit Street Improvementsll .. . . . . (33) "New Submerged Lands Leasell . . (34) "Notice of Intention to Purchase [Lease] II . . . . . . . . 1I0ffice Projectll . . .. ... 1I0riginal Effective Datell ... "Parcel" . . . . . . . . . . . "Parcel Planll . .. ..... II Park" ...... ....... "Pedestrian Walkway and Bikepath" . . _. . "Permanent Financingll . . . . . . . . . . (35) (36) (37) (38) (39) (40) (41 ) 6 . . . . 6 . .. 6 . .. 6 7 7 7 7 2 2 2 2 3 3 .., ..) 3 3 3 3 3 3 3 4 4 4 4 4 4 4 4 4 5 5 5 5 5 5 5 6 6 6 6 6 I I I I I I I I I I I I I I I I__H_ I I I 1. 02 1. 03 ARTICLE 2. 2.01 2.02 2.03 2.04 2.05 ARTICLE 3. 3.01 3.02 3.03 3.04 3.05 3.06 (42) "Permanent Lender" . . . . . . . 7 (43) "Permits" . . . . . . . . . . . . 7 (44) "Permitted Exceptions" . . . . . . . . . 7_ (45) "Plan" . . . . .- . . . . 7 (46) "Plans and Specifications" . . . 7 (47) "Project" . . . . . . . . . . . . . . . . 7 (48) "Project Completion Date" . . . . . . 8 (49) "Project Coordinator" . . . . . . . . . . 8 (50) "Project Financing" . . . . . . . 8 (51) "Project Financing Documents" . . . 8 (52) "Project Lender" . . . . . . . . . . . 8 (53) "Project Professionals" . . . . . . . 8 (54) "Project Schedule" . . . . . . . . . 8 (55) "Project Site" . . . . . . . 8 (56) "Proposal" . . . . . . . . . . . . . 8 (57) "Public Financing" . . . . . . . . . . 8 (58) "Public Improvements Project" 8 (59) "PUD Ordinance" . . . . . . . . . 9 (60) "Purchase Price" . . . . . . . . . . 9 (61) "Residential Project" . . . . . . . . 9 ( 6 2) "Restated Effective Date . . . . . . 9 (63) "Retail Project" . . . . . . . . . . . . . 9 (64) "Revised Site Plan . . . . 9 ( 65) RFP" . . . . . . . . . . . . . . . . 9 (66) Right to Contest" . . . . . . . . . . 9 (67) SeaHall" . . . . . . . . . . . . . . 10 (68) Subdivision Plat" 10 (69) Substitute Parcel" . . . . . . . 10 (70) Takedown Schedule Commencement Date" 10 (71) "Takedown Schedule" 10 (72) "Termination Date" . . . . . . 10 (73) "Unavoidable Delay" . . . . . . . 10 (74) "Waltemath" . . . . . . . . . . . . 10 Use of Words and Phrases . Florida Statutes . . . . . ....... 10 11 PURPOSE; PROPOSAL; PROJECT SCHEDULE Purpose of Agreement . . . . . . . . Developer's Proposal. .. ... Cooperation of the Parties ... proj ect Schedule . . . .. ... Authorized Representative . . . . . . . . . . . 11 11 12 12 12 14 . . . . . . . . . . . . REGULATORY PROCESS. .............. Zoning . . . . . . . . . . . . . . . . . . . Development of Regional Impact . ...... Submerged Lands Lease . . . . . . . . . . . Permi ts . . . . . . . .. ......... Concurrency . . . . . .. . .. .... Not a Development Order or Permit . . . . . . . 14 14 16 16 17 18 19 ii Subdivision Plat. ............... PLANS AND SPECIFICATIONS . . . . . . . . . . . . Revised Site Plan . .. . . . . . . . . Preparation of Plans and Specifications . . . . Agency Review of Plans and Specifications . . . Agency's Scope of Review of Plans and Spec- ifications . . . . . . . . . . . . .. ... Project Ingress and Egress ... .... PUBLIC IMPROVEMENTS PROJECT PLANS I BUDGET AND FINANCING . . . . . . . . . . . . . . . . . . . Plans and Specifications . ......... Project Financing . . . . . . . . . . . . . PROJECT FINANCING ... Construction Financing Permanent Financing . . . Notice of Developer's Default. Cure of Developer's Default by Bond Company or Construction Lender . . . . . . . . . . . Construction Lender"Not Obligated to Construct. Option to Pay Mortgage Debt or Purchase Project Site. . . . . . . . . . Agency Cures Developer's Default. PROJECT SITE ...... ... ... Ownership of the Site . . . . . . Parcels . . . . . . . . .. .... Notice of Intention to Purchase or Lease . . . . Title . . . . . . . . . . . .. ...... Sale of Parcels to Developer . ....... Lease of Parcels to Developer. ....... Develop~r's Right of Access to the Project Site. . . . . . . . . . . . . Signs . . . . . . . . . . . . Determi~ing Values of Parcels CONSTRUCTION OF THE PROJECT . . . . . . . . . . Site Clearance . . . . . . . . . . . Construction of the Project . . . . . . . . Payment of Contractors and Suppliers Mechanic's and Materialmen's Liens. .... Maintenance and Repairs . . . . . . . . . . . . Project Alterations or Improvements . . . . Construction Completion Certificate . . . . . . Agency Not in Privity with Contractors ... . . . . PROJECT COORDINATION . . . . . . . .. ... Project Coordinator . . . . . . . . . . . . . . Project Construction Coordination Services . iii 19 19 . 19 20 20 21 22 22 22 23 24 24 25 25 26 27 28 29 29 29 29 36 37 38 39 40 41 42 43 43 44 46 46 47 47 47 48 49 49 49 I I I I I I I I I I I I I I I 1---- I I :1 ARTICLE 10. 10.01 10.02 10.03 10.04 ARTICLE 11. 11. 01 11. 02 11.03 11.04 ARTICLE 12. 12.01 12.02 12.03 ARTICLE 13. 13.01 13.02 ARTICLE 14. 14.01 14.02 ARTICLE 15. 15.01 15.02 15.03 15.04 ARTICLE 16. 16.01 16.02 16.03 16.04 16.05 16.06 16.07 ARTICLE 17. 17.01 17.02 ARTICLE 18. 18.01 THE PUBLIC IMPROVEMENTS PROJECT . . . . Construction of the Public Improvements Project . . . . . . . . . .. ....... Nesbit Street . . . . . . . . . . . Additional Public Improvements . . . . . . . . . Maintenance of Public Improvements . . . . . . . . . . . INSURANCE Insurance Insurance Waiver of Insurance ........... . . . . . . Requirements Generally ... During Construction of the Project . . Subrogation Requirement . . . . . . . Exclusive of Indemnity . . . . . . . . INDEMNIFICATION . . . . . . . . Indemnification by the Developer . Indemnification by the Agency. Limitation of Indemnification REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER . . . . . . . . . . Representations and Warranties . Covenants . . . . . . . . REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE AGENCY . . . . . . . . . . Representations and Warranties . Covenants . . . .. .... CONDITIONS PRECEDENT . ..... Developer Acquiring or Leasing Project Site Agency Conveying Project Site . .. ... Construction of Project . . . . . . . . . . Responsibilities of the Parties for Conditions Precedent . . . . . . . . . . . DEFAULT; TERMINATION . ... . . . Parcel Default by the Developer . . . . . . Project Default by Developer .. ...... Default by the Agency . . . .. ...... Obligations, Rights and Remedies Cumulative Non-Action on Failure to Observe Provisions of this Agreement . . . . . . . . . Termination . . . . . . . . . . . . Termination Certificate . . . . . . RIGHT TO CONTEST . Right to Contest . Conditions . . . . ......... ....... ............ ARBITRATION . . . . . Agreement to Arbitrate iv 50 50 50 51 51 52 52 54 56 56 56 56 57 57 58 58 60 61 61 62 63 63 65 65 66 66 66 68 70 71 71 71 74 74 74 74 75 75 il I I I I I I I I I I I I I I 1_____ I I I 18.02 18.03 18.04 18.05 18.06 18.07 18.08 18.09 18.10 ARTICLE 19. 19.1 ARTICLE 20. 20.01 ARTICLE 21. 21.01 21.02 21. 03 21. 04 21.05 ARTICLE 22. 22.01 22.02 22.03 22.04 22.05 22.06 22.07 22.08 22.09 22.10 22.11 22.12 22.13 22.14 22.15 22.16 22.17 22.18 22.19 22.20 22.21 22.22 22.23 Appointment of Arbitrators General Procedures . . . . Majority Rule . . . . . . . . .. . . Replacement of Arbitrator Decision of Arbitrators . . . . . . Expense of Arbitration . . Accelerated Arbitration . . . . . . Applicable Law . . . . . . Arbitration Proceedings and Records . . . . . . . UNAVOIDABLE DELAY Unavoidable Delay . . . . . . RESTRICTIONS ON USE Project . . . . FIRE OR OTHER CASUALTY; CONDEMNATION Loss or Damage to Project . . . . . . . . . . . Partial Loss or Damage to Project . . . . . . . Project Insurance Proceeds . . . . . . . Notice of Loss or Damage to Project . . . . . . Condemnation of Project or Project Site; Application of Proceeds . . . MISCELLANEOUS . . . . .. ......... Assignments ... . . . . . . . . . Successors and Assigns . .......... Notices . . . . . . . . . . . . . Severability . . . . . . . . . . . . . . Applicable Law and Construction . . . . . . Venue; Submission to Jurisdiction . . . . . . . Agreement Not a Chapter 86-191, Laws of Florida, Development Agreement . . . . . . . . . . Estoppel Certificates . . .. ....... Complete Agreement; Amendments . ...... Captions . . . . . . . . . . . . . . . Holidays . . . . . . . . . . . . . . . . . Exhibi ts . .. ....... . . . . No Brokers . . .. .............. Not an Agent of City or Agency . ...... Memorandum of Development Agreement . . . . Public Purpose . . . . . . . . . . . . . . . . . No General Obligation . . . . . . . . . . . Technical Amendments; Survey Corrections . . . . Term; Expiration; Certificate . . . . . . . . . Effective Date . . . . . . . . . . . . . . . . . Approvals Not Unreasonably Withheld . . . . . . Effect of Amended and Restated Agreement . . . . Justice Center Site . . . . . . . . . . . . . . v 75 76 77 77 77 77 78 78 78 79 79 81 81 81 81 82 82 82 82 83 83 83 84 84 85 85 85 86 86 86 86 86 87 87 87 87 87 87 88 89 89 89 89 I I I I I I I I I I I I I I, I I I-_Uh I, I I EXHIBIT "A" "B" "C" "0" "E" "F" "G" "H" "I" "J" "K" "L" "M" "N" LIST OF EXHIBITS DESCRIPTION Project Description Project Site Parcel Plan Takedown Schedule 99 Year Lease Form Fee Simple Deed Form Mechanics Lien and Possession Affidavit Form Park Pond Weir Revised Site Plan Public Improvements Reimbursement Schedule Memorandum of Agreement for Development and Disposition of Property Existing Submerged Lands Lease Second Mortgage Form Maintenance Reimbursement Schedule vi I I I I I I I I I I I I I I I I- I I I SECOND AMENDED AND RESTATED AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY (Waterfront Project) This Second Amended and Restated Agreement for Development and Disposition of Property (the "Agreement") is made as of this 16th day of July, 1997, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PUNTA GORDA, FLORIDA, a public body corporate and politic of the state of Florida (the "Agency"), and WALTEr-IATH INTERESTS, INC., a Florida corporation ("Wa1 temath") . RECITALS: In January 1990, Daltemath responded to a request for proposals for a waterfront project in Punta Gorda, which the Agency accepted as of February 21, 1990. The Agency accepted the proposal subject to negotiation of an agreement between the Agency and Waltemath pertaining to and setting forth the terms and conditions for the development and operation of the Waterfront Project. The Agency and Waltemath entered into and concluded negotiations for a development and disposition agreement setting forth the respective duties and responsibilities of the parties pertaining to the conveyance of the Project Site, including each parcel constituting part of the Project Site and the design, development, construction, completion, operation and maintenance of the Project. Due to certain terms and conditions of the negotiated Agreement and in order to provide for the successful development of the Project, the Agency entered into an interlocal agreement with the City of Punta Gorda, Florida, a Florida municipal corporation (the "City"), dated as of March 7, 1990 (the "Interlocal Agreement"), providing for the conveyance of the Project Site by the City to the Agency and establishing certain other duties, obligations, terms and conditions pertaining to the Agency and the Project. At a duly called public meeting on March 7, 1990, the Agency approved the negotiated Agreement for Development and Disposition of Property and authorized and directed its execution by the appropriate officials of the Agency. The board of directors of Waltemath approved the said negotiated Agreement for Development and Disposition of Property and authorized and directed its executive officer to execute the Agreement on behalf of Waltemath. The Agreement for Development and Disposition of Property (Waterfront Project), was entered into as of March 7, 1990. II I.. I I I I I I I I I I I I I 1- - -- I I I Thereafter, the City entered into an Interlocal Agreement with Charlotte County to provide land for a new proposed Justice Center. The Agency and Waltemath executed a Letter of Intent dated September 6, 1995, establishing the parties' intention and desire to remove approximately ten acres of land from the Waterfront Project so that Charlotte County could construct a new County Justice Center thereon, and to provide compensation to Waltemath for his loss of development rights to the said land. Pursuant to the Letter of Intent, the Agency and Waltemath thereafter entered into an Amended and Restated Agreement for Development and Disposition of Property as of October 4, 1995. Since the execution of the Amended and Restated Agreement I the Agency and Hal temath have agreed upon further amendments in order to provide additional parkland in the Waterfront Project, to make adjustments in the Agreement in order to compensate Waltemath for the creation of the additional parkland within the Waterfront Project, and to simplify and clarify the language of the Agreement where appropriate and possible. Waltemath and the Agency desire to also eliminate further ~eference to completed activities and to incorporate all of their amendments into this Second Amended and Restated Agreement for Development and Disposition of Property. NOW, THEREFORE, in consideration of Ten Dollars and other good and valuable consideration, in hand paid by Waltemath to the Agency, and in further consideration of the mutual promises and covenants herein contained, the parties hereby agree as follows: ARTICLE 1. DEFINITIONS. 1.01 Definitions. The terms in this Second Amended and Restated Agreement shall have the following meanings, except as otherwise expressly provided: (1) "Act" means the Constitution of the State of Floridai Section 163.01, Florida Statutes, Part III, Chapter 163, Florida Statutes i 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 Conununity Redevelopment Agency of the City, as created by Resolution No. 955-89 of the City, adopted by the City Council on December 20, 1989, including any amendments thereto, and any successors or assigns thereto. _ . ( 3) . "Agreement" means this Second Amended and Restated Agreement for Development and Disposition of Property, including any Exhibits, and any amendments hereto or thereto. 2 I I I I I I I I I I I I I I I 1- _ I I I (4) "Agreement Expiration Certificate" means the instrument executed by the parties hereto as provided in Section 22.19 certifying that all obligations of the parties hereto have been satisfied and this Agreement has expired in accordance with its' terms. . (5) "Agreement Termination Certificate" means the instrument executed by the parties hereto as provided in Section 16.07, stating that this Agreement has been terminated prior to its Expiration Date as provided in Section 16.06. (6) "Area" means the area located wi thin 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 its Resolution No. 952-89, adopted on November 15, 1989, and established as the area of operation of the Agency by Resolution No. 955-89, adopted by the City Council on December 20, 1989. (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 2.05. (8) "Building Permit" means, for each part of the Project to be constructed on a Parcel, any permit issued by the appropriate department, office or official of the City having the authority to and being charged with reviewing the Plans and Specifications for compliance with the building or other similar codes applicable to that part of the Project being constructed, but "Building Permit" does not mean the Permits or the Marina Project Permit. (9) "City" Florida municipal thereto. means the City of Punta Gorda, corporation, and any successors Florida, a or assigns (10) "City Council" means the governing body of the City, by whatever name known or however constituted from time to time. (11) "Closing Date" means, for each Parcel, the date on which title to that Parcel is conveyed by the Agency or is caused by the Agency to be conveyed to the Developer in accordance with the applicable provisions of Article 7 hereof. ( 12) "Commencement Date" means, for that part of the Proj ect to be developed on a Parcel, the date on which the Developer of that part of the Project commences or causes a Contractor to commence construction thereon as provided in Section 8.02 hereof. ( 13) -. consisting of operation of improvements "Commercial Project" means that part of the Project the design, development, construction, completion and those buildings, structures, facilities and other to be constructed and installed on Parcel "I" (as 3 ;1 I I I I I I I I I I ~I I I I I-- I I I depicted on the Parcel Plan} which are to be used for commercial office or retail purposes, all as more particularly described in the PUD Ordinance. (14) "Completion Date" means, as to each part of the Project developed on each Parcel, the date on which construction thereof is substantially complete as evidenced by a Construction Completion Certificate. (15) "Construction Completion Certificate" means, as to each part of the Project developed on each Parcel, the certificate evidencing completion of construction thereof as provided in Section 8.07. (l6) "Construction Financing" means, for each part of the Project to be developed on each Parcel, the funds provided by the Construction Lender to pay the cost to the Developer of developing the part of the Project to be developed on that Parcel, including acquisition of the Parcel, and the design, construction and equipping of the part of the Project to be developed on that Parcel, and may also include funds available to the Developer through internal funds of the Developer or funds raised through sales of stock, partnership units, or other equity participation in the Developer. ( 17) "Construction Lender" means any person or persons providing the Construction Financing. (18) "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. (19) "County" means Charlotte County, Florida, a political subdivision of the State of Florida. (20) "County Judicial Center Project" means the design, development, construction, completion and operation of those buildings, structures, facilities, and other improvements to be constructed and installed on the County Judicial Center Site. (21) "County Judicial Center Site" means the property located in the Area consisting of land constituting the former parcels "F," "G," "H," an a portion of former parcels "A" and "K," under the original Agreement for Development and Disposition of Property, which totals approximately ten (IO) acres on which the County Judicial Center Project will be constructed. 4 I I I I I I I I I I I I I I I 1---- I I I (22) "Developer" means Waltemath Interests, Inc., a Florida corporation, and any successors and assigns thereof, including any enti ty, partnership / j oint venture / or other person in which. Waltemath Interests, Inc., or DavidWaltemath individually is a general partner or principal, but not including any entity, partnership / j oint venture / or other person in which Wal temath Interests / Inc., or David Wal temath individually is a general partner or principal which is not undertaking or participating in any development of the project, or any part thereof. (23) "DRI" means the development of regional impact review for the Project pursuant to Section 380.06/ Florida Statutes/ or any successor law, rule or regulation thereto, including preparation and filing an Application for Development Approval, proceedings before governmental agencies, including the regional planning council and state and local agencies, and preparation and approval of ~ final non-appealable development order and modifications thereto including determinations of substantial deviation. (24) "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. (25) "Existing Submerged Lands Lease" means the lease between the City and the State of Florida for Parcel "C-2/" which expires September 23/ 2001. (26) "Expiration Date" means the date on which this Agreement expires, as evidenced by the Agreement Expiration Certificate being recorded in the public records of Charlotte County, Florida, as provided in Section 22.19 hereof. (27) "Interlocal Agreement" means the inter10cal agreement between the City and the Agency/dated as of March 7/ 1990, as amended, entered into pursuant to Sections 163.01 and 163.400/ Florida Statutes, which establishes certain duties and responsibilities of each party thereto pertaining to the Project and the implementation of this Agreement, including, but not limited to/ conveyance of the Project Site by the City to the Agency and development of the Project. (28) "Lease" means the lease agreement for any Parcel being leased by the Agency to the Developer / the form of which is attached hereto as Exhibit "E". (29) "Lease Commencement Date" means/ for any Parcel being leased by the Agency to the Developer, the date on which the Lease therefor commences. 5 I I I I I I I I I I I I I I I I ,I I I (30) "Marina Project" means that part of the Project consisting of the design, development, construction, completion and operation of those structures , facilities, boat slips, piers, docks, and other improvements, including any dredging and filling of Parcel "C-2" (as depicted on the Parcel Plan) to be constructed and installed on Parcel "C-2," which are to be used as a marina and uses appurtenant thereto, all as more particularly described in the PUD Ordinance. (31) "Marina Project Permit" means any and all permits required for the construction, dredge and fill of Parcel "C-2" (as depicted on the Parcel Plan) and any channels, entrances or access routes thereto, including any permits, licenses, or other requirements of the State of Florida Department of Environmental Protection, the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, U.S. Army Corps of Engineers, and any other governmental agency having jurisdiction over the Marina Project or Parcel "C-2," and any successors or assigns thereto. ( 3 2 ) "Nesbi t Street Improvements" means a three (3) lane urban cross-section road extending from Marion Avenue to the point depicted on the Parcel Plan as the terminus of Nesbit Street, up to a maximum right-of-way of seventy feet (70'). (33) "New Submerged Lands Lease" means the lease between the City and the State of Florida for Parcel "C-2" as more particularly described in Section 3.03. ( 3 4 ) "Notice of Intention to Purchase [Lease]" means the notice given by the Developer to the Agency no later than the date determined in accordance with Section 7.03 stating the Developer's intention to either acquire or lease the Parcel or a Substitute Parcel, as and if provided in this Agreement, by the date set forth in the Takedown Schedule. (35) "Office Project" means that part of the Project consisting of the design, development, construction, completion and operation of those buildings, structures, facilities and other improvements to be constructed and installed on Parcel "D-l" (as depicted on the Parcel Plan) which are to be used for office purposes. (36) "Original Effective Date" means March 7, 1990. (37) "Parcel" means each distinct part of the Project Site as identified and depicted on the Parcel Plan. (38) "Parcel Plan" means the depiction and description of each Parcel on Exhibit "C." 6 I I I I I I I I I I I I I I il il I I I (39) "Park" means that part of the Public Improvements Project consisting of an open space, public park as identified and depicted on the Parcel Plan. (40) "Pedestrian Walkway and Bikepath" means the sidewalk, pedestrian way and bikepath located on Parcel "K" and Parcel "K-l" (as depicted on the Parcel Plan). (41) "Permanent Financing" means, for each part of the Project to be developed on each Parcel, the funds to be provided by the Permanent Lender, which redeems or pays the then outstanding amount of the Construction Financing and which may be secured by a mortgage, security interest, pledge, lien or other encumbrance on the rights and interests of the Developer in the Parcel or that part of the Project to be developed on that Parcel, or both, and may also include funds available to the Developer through internal funds of the Developer or funds raised through sales of stock, partnership units, or other equity participation in the Developer. (42) "Permanent Lender" means any person or persons providing the Permanent Financing. (43) "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 or be completed, but does not include the Marina Project Permit or Building Permit. (44) conveyed by encumbrances Closing Date "Permitted Exceptions" means, as to each Parcel being the Agency to the Developer, those liens and on the Parcel agreed to by the parties prior to the as provided in Section 7.04 hereof. (45) "Plan" means the community redevelopment plan for the Area, including the Project Site, as approved by the Agency on January 17, 1990 and adopted by the City Council on January 17, 1990, by adoption of its Resolution No. 956-90, and including any amendments to the Plan. (46) "Plans and Specifications" means, as to each part of the Project to be developed on a particular Parcel, the schematic, design development, and construction documents, any concept plans, and the site plan for the part of the Project to be developed on that Parcel, filed with the City as required by and in accordance with the PUD Ordinance. (47) "Project" means, collectively, the Residential Project, the Retail Project, the Commercial Project, Hotel/Residential Project, the Marina Project, the Office Project, and the Public Improvements Project. 7 I I I I I I I I I I I I I I I I I I I (48) construction contemplated evidenced by "Project Completion Date" means the date on which of the entire Project is substantially complete as by this Agreement and the PUD Ordinance and as the Project Completion Certificate. (49) "Project Coordinator" means the person appointed by the Agency from time to time to provide the project coordination services described in Section 9.02. (50) "Project Financing" means, collectively, the Construction Financing and the Permanent Financing. (51) "Project Financing Documents" means any loan commitment, agreement, note, mortgage or other instrument setting forth the terms of the Construction Financing or the Permanent Financing. (52) "Project Lender" means, either, the Construction Lender or the Permanent Lender. (53) "Project Professionals" means, as to that part of the Project to be developed on a particular Parcel, any architects, 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, completion and opening of that part of the Project, but does not include the Developer. (54) "Project Schedule" means those times, dates and time periods set forth herein or as agreed to by the parties for the acquisition or lease of each Parcel and the commencement, undertaking and completion of the Project, including various parts thereof, as provided in this Agreement, including Section 2.04 and the Takedown Schedule. (55) "Project Site" means the area described and depicted on Exhibit "B," consisting of each and every Parcel. (56) "Proposal" means the proposal for redevelopment of the Project Site, dated January 22, 1990, submitted by the Developer to the Agency in response to the RFP. (57) "Public Financing" means the funds available to the Agency to pay the Public Improvements Project Cost and such other costs as may be required by this Agreement to be paid by the Agency. (58) "Public Improvements Project" means the public improvements that were constructed, installed and equipped after the Restated Effective Date, including the Park, the Pedestrian Walkway and Bikepath, and the Seawall, as well as the Nesbit Street 8 I I I I I I I I I I I II I I I I I I I, and Retta Esplanade imprevements that are the respensibility ef the Agency. (59) "PUD Ordinance" means the ordinance or erdinances, including amendments er supplements thereto, enacted by the City Council pursuant to Sections 26-7(1)(0.) and 26-9(6), ef the City's Land Development Regu1atiens (or any successer Regulatiens thereto.) , which rezones the preject Site and establishes terms, conditions, standards and requirements fer the development of each Parcel. (60) "Purchase Price" means, as applied to each Parcel, the aggregate ameunt paid by the Develeper to the Agency to. acquire that Parcel. (61) "Residential preject" means that pertion of the Project consisting of the design, development, construction, completion and operatien ef tho.se buildings, structures, facilities and other improvements to be constructed and installed on Parcel "A," which is to be used for condominium residences, all as more particularly described in the Revised Site Plan and in the PUD Ordinance. (62) "Restated Effective Date" means the date of execution of this Second Amended and Restated Agreement fer Develepment and Disposition of Preperty by the last necessary party. (63) "Retail Project" means that portion ef the Project consisting of the design, development, construction, completion and operation of those buildings, structures, facilities and other improvements to be constructed and installed en Parcel "B," Parcel "D, "and Parcel "C," which are to be used for commercial retail purposes, all as more particularly described in the PUD Ordinance. (64) "Revised Site Plan" means the plan, dated and initialed by the parties executing this Agreement, depicting the Parcels and the proposed develepment en each Parcel as centemplated by this Agreement, specifically Sectien 4.01. (65) "RFP" means the Request fer Preposals published by the Agency on January 19, 1990, soliciting proposals from persons interested in redeveloping the Project Site in accordance with the Act and the Plan. (66) "Right to. Contest" means the procedure set forth in Section 17.01 hereof fer challenging any lien, payment, charge, or cempliance with any law, rule, regulatien or other legal requirement as described therein. (67) "Seawall" means the waller embankment lecated on the Project Site and extending from the beat ramp in existence en the original Effective Date to. the seutheast end ef the wall or 9 I I I I Ii I I I I I I I I I I I I I I embankment and made to break the force of the waves and to protect the shore from erosion, and the Pedestrian Walkway atop such wall or embankment. (68) "Subdivision Plat" means the plat of the Project Site prepared by the Agency, approved by the City in accordance with applicable laws, codes, ordinances, resolutions, and policies, and recorded in the public records of Charlotte County, Florida, including any amendments or revisions thereto from time to time. ( 69) "Substi tute Parcel" means a Parcel for which the Developer has given notice of its intention to buy or lease in lieu of another Parcel previously scheduled to be acquired or leased by the date set forth in Exhibit "D" for that Parcel, all as provided in Section 7.03. (70) "Takedown Schedule Commencement Date" means January 1, 1997. (71) "Takedown Schedule" means the schedule of dates set forth in Exhibit "D" by when the Developer is to have acquired or commenced to lease the Parcel as set forth in the schedule, subject to such adjustments as are provided in this Agreement. ( 7 2 ) Agreement is Section 16.06. "Termination Date" terminated by any the date on which this hereto as provided in means party ( 73) "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 19 hereof. (74 ) corporation, the assignee Partnership, "Waltemath" means Waltemath Interests, Inc., a Florida which is the initial Developer under this Agreement or of Waltemath Interests, Inc., Waltemath Family Limited David Waltemath General Partner. 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 (1995), as amended from time to time. 10 I I I I I I I I I I I I I I I I I I 'I ARTICLE 2. PURPOSE; PROPOSAL; PROJECT SCHEDULE. 2.01 Purpose of Aqreement. (a) The purpose of this Agreement is to further the implementation of the Plan by providing for the conveyance or lease of each Parcel which collectively constitute the Project Site, to the Developer and, the development and construction of the Project on the Project Site in accordance wi th the Plans and Specifications, including the construction, equipping and completion of the Project thereon as set forth in the Proposal and this Agreement, and the design, construction and completion of the Public Improvements Project in accordance with the Public Improvements 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 slum and blight, all in accordance with and in furtherance of the Plan and as authorized by and in accordance with the Act. (b) The proj ect Site is to be redeveloped according to Plans and Specifications for a multi-use project which includes residential, retail, office, marina and public use components, with related park, pedestrian walkways, streets, parking and infrastructure improvements. As provided in this Agreement, the Agency intends to undertake certain public actions pursuant to the Act and as implementation of the Plan, including improvement and maintenance of the Project Site and making it available for redevelopment, transfer of all or part of the Project Site, assistance in obtaining such approvals by governmental authorities as are necessary for development of the Project, construction of certain public improvements, maintenance and operation of certain public areas and providing adequate utilities to the Project Site necessary to serve the needs of the Project. (c) As provided in this Agreement, the Developer shall carry out the redevelopment of the Project Site by purchasing or leasing individual parcels, obtaining approvals by governmental authorities necessary for development of the Project, constructing various private improvements on the Project Site, constructing and maintaining certain public improvements, and operating the Project as a unified and integrated multi-use project. (d) The parties recognize, acknowledge and agree that Waltemath is the initial Developer under this Agreement for the entire Project, but they further recognize, acknowledge and agree that it is the intention of Waltemath to assign, convey, transfer or otherwise dispose of its rights, duties, obligations and interests in some or all of the Parcels (and those parts of the Project to be developed thereon) to other persons from time to time. As provided in this Agreement, and to the extent permitted hereunder, Waltemath mayor may not retain any interest in that 11 I I I I I I I I I I I I I I I I I I I part of the Project or any Parcel so assigned, conveyed, or transferred. 2.02 Developer's Proposal. (a) The Proposal for the redevelopment of the Project Site, specifically including the acquisition or leasing of each Parcel comprising part of the Project Site and the design, construction, equipping, completion and operation of the Project, and each part thereof, is hereby found by the parties hereto: (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 responsi ve to the RFP, (4) to be in the best interests of the citizens of the City, (5) to further the purposes and objectives of the Agency and (6) to further the public purpose of eradicating conditions of slum and blight in the Area. (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. (c) The parties hereto find that the terms and conditions set forth in this Agreement do not, individually or collectively, constitute a substantial deviation from the RFP or the Proposal. 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. Each party agrees that it shall act in a reasonable manner. Each party shall provide the other party with complete and updated information from time to time with respect to the conditions such party is responsible for satisfying. Each party shall make its good faith, reasonable efforts to ensure that such cooperation is continuous, that the purposes of this Agreement are carried out to the full extent contemplated hereby, and that the Project is designed, constructed, equipped, completed and operated as provided herein. 2.04 Proiect Schedule. (a) The parties hereto recognize, acknowledge and agree that the acquisition or leasing of each Parcel from time to time as provided in Article 7 hereof, and the design, construction, .equipping, completion and operation of the Project requires coordination of the project schedules for the Residential Project, the Retail Project, the Commercial Project, the Marina Project, the Office Project, and the Public Improvements Project. The planning, design, development, construction, completion and availability for operation of each of the Residential Project, the Retail Project, the Commercial Project, the Marina Project, the Office Project, and the Public Improvements Project shall be undertaken, diligently 12 I I I I I I I I II I I I I I I I I I I continued and completed in accordance with and by or within the dates, times and time periods set forth in this Agreement and the Takedown Schedule (such dates, times and time periods being hereinafter referred to collectively as the "Project Schedule"). (b) The Project Schedule may be changed or revised by either party from time to time. Such change or revision shall not be effective until the party proposing such revision shall have given prior written notice of such revision to the other party and, for all changes or revisions to the Project Schedule except for a Completion Date, the other party shall have approved such revision. Within fourteen (14) business days after receipt of a request from the other party for a revision of the Project Schedule, the party receiving such request shall notify the party making such request of its approval or disapproval of such proposed revision. Failure of a respondent party to respond within said fourteen (14) day period shall be deemed an approval of such revision. A revision or change to the Project Schedule shall become effective upon the earlier of either the approval by the other party or expiration of the fourteen (14) day review period without such change being rejected by the non-proposing party. (c)(l) In addition to any changes in the Project Schedule made pursuant to subsection (b), without the necessity of the prior approval of the other party hereto, the Project Schedule may be revised by the Agency or the Developer to provide an extension of time for either the Agency or the Developer to obtain the Permits, provided the applicant for such extension certifies to the other party hereto that the failure to obtain the Permits was beyond the reasonable expectation or control of the applicant, the Permits should be issued by the appropriate governmental authority within a reasonable period of time thereafter and the extension is not due to any delay or failure to act by the applicant. (2) The Project Schedule shall also be revised without necessity of the approval of the other party pursuant to subsection (b) in the event of the inability of the Agency or the Developer, respectively, to timely perform any of its obligations hereunder by the dates set forth in the Project Schedule due to Unavoidable Delay as provided in Article 19 and the procedures set forth therein are invoked and implemented. (3) In case of the occurrence of any event set forth in paragraphs (1) or (2) above, any subsequent and affected date, time .or time period of the Project Schedule shall, to the extent necessary, be extended by the number of days of delay caused by such event, provided the parties hereto agree they shall, individually and collectively, exert all reasonable efforts and due diligence to minimize or avoid such delays. (d) and shall The provisions of this Section 2.04 are not intended not inure to the benefit of any Contractor, proj ect 13 I I I I I I I I I I I I I I I I I I I Lender (unless such Project Lender assumes the rights, duties and obligations of the Developer hereunder) or any person not a party to this Agreement. (e) Any Completion Date in the Project Schedule may also be revised or changed by the Developer without necessity of the approval by the Agency of such revision or change. The Developer shall notify the Agency of any such change or revision promptly after learning of the need for such change or revision in any Completion Date. 2.05 Authorized Representative. (a) Each party hereto 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 22.03 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. ARTICLE 3. REGULATORY PROCESS. 3.01 Zoninq. (a) On the Original Effective Date, the zoning classificat- ion for the Project Site was Commercial (CBD). The parties recognize and acknowledge that the zoning classification of the Project Site at that time did not permit redevelopment thereof in accordance with the Plan or the Proposal. (b) The Agency, the City and the Developer prepared and submitted to the City an application for rezoning of the Project Site to the category of Planned Unit Development ("PUD") pursuant to Sections 26-7(1)(0) and 26-9(6) of the City's Land Development Regulations. The application for rezoning was approved by the City subject to final approvals for each Parcel under the PUD Ordinance, 14 I I I I I I I I I I I I I I I I I I I which permits development of the Project in accordance with the Agreement. (c) The parties recognize and acknowledge that the Developer and Agency will have to prepare and file an application to revise the PUD approval for the Project Site based upon the Revised Site Plan, for which the Agency shall provide a Revised Site Plan, survey and a waiver or payment of fees. Agency will file the application for a revised PUD approval within thirty (30) days after the full execution of this Agreement. (d) The parties recognize and acknowledge that the Developer will have to make additional applications with the City for final approvals for each Parcel under the PUD Ordinance in order for each Parcel to be developed in accordance with the Plans and Specifications and the Revised Site Plan. The Developer covenants and agrees to prepare and submit such additional applications under the PUD Ordinance as are necessary for further development of the Project on each Parcel, except that Developer has no obligation to prepare PUD amendments for the County Judicial Center Site, the Public Improvements Project, or the Park. The Developer further covenants and agrees to initiate and diligently proceed with the review and approval process required or contemplated by the PUD Ordinance so as to allow for timely completion of any reviews and, approvals by the City under the PUD Ordinance either prior to the scheduled Closing Date or Lease Commencement Date of the affected Parcel as set forth in the Takedown Schedule, or after the said Closing Date or Lease Commencement date, but before commencement of construction; however, in the event the Final PUD application is submitted after the Closing Date or Lease Commencement Date, Waltemath shall be an applicant or co-applicant for the final PUD approval. (e) The Agency agrees it will not submit any request or recommendation to the City Council that the Council approve or enact an ordinance making any change or repeal of the sixty (60) feet height allowed under the PUD for the Residential Project unless requested to do so by the Developer. (f) The Agency covenants and agrees to cooperate with the Developer concerning any rezoning of the Project Site or any individual Parcel, including the final approvals under the PUD Ordinance, and will, to the extent the Agency finds such rezoning or final approval requests to be consistent with the Plan and this Agreement and further the objectives of both, submit a recommendation to the City that such rezoning or final approvals be granted, specifically including any rezoning of Parcel "D-I" to allow a ten-foot or less setback from Retta Esplanade, and from the adj acent property because of the need to accommodate a 25,000 square foot building on the Parcel. 3.02 Development of Reqional Impact. 15 I I I I I I I I I I I I I I I I I I I (a) The proj ect and the County Judicial Center proj ect collectively is a "development of regional impact" as described in Section 380.06, Florida Statutes. (b) The development of regional impact was approved by development order of the City on February 19, 1997; and the State Department of Community Affairs issued its no-appeal letter on March 18, 1997. (c) The Developer shall reimburse the Agency for the DRI fees and expenses incurred by the Agency in the initial Application for Development Approval in the amount of Forty Thousand Dollars ($40,000.00), payable on the Closing Date or the Lease Commencement Date, as the case may be, of the first of Parcels "B," "C," "D" or "I" taken by the Developer. The Agency shall be responsible for the off-site exactions required by any state agencies or the City as a condition of approval of the development order for the DRI. (d) The changes to the Waterfront Project resulting from this Second Amended and Restated Agreement for Development and Disposi tion of Property may cause a review of the proj ect for Substantial Deviation to the DRI Development Order and may cause further review through a modification of the Development Order. All the costs of, and the responsibility to prosecute, such reviews shall be the sole responsibility of the Agency, as shall the cost of any additional off-site exactions. Agency shall apply for such review, and an amended DRI Development Order, within thirty (30) days after full execution of this Agreement. 3.03 Submerqed Lands Lease. (a) The parties recognize and acknowledge that Parcel "C-2" includes submerged lands which are sovereign lands owned by the State of Florida and can only be used pursuant to, and subject to the terms and conditions of, a lease with the State of Florida. (b)(l) The parties acknowledge that the City and the State of Florida are parties to the Existing Submerged Lands Lease, a copy of which is attached hereto as Exhibit "L". (2) The Agency will also seek or cause the City to seek a New Submerged Lands Lease and marina permit with twenty (20) year minimum term which will allow Developer or Agency to operate a commercial, pleasure craft marina, as well as to increase the .number of marina slips allowed to at least 50 slips, being 30 more than presently exist. The New Submerged Land Lease shall have terms and conditions that will facilitate development of the marina project in a manner envisioned by the Revised Site Plan. The New Submerged Land Lease shall allow the 30 additional slips to be constructed by Developer in accordance with the Revised Site Plan and this Agreement, and the Lease shall allow the 30 additional slips to be offered and available to purchasers of the condominium 16 I I I I I I I I I I I I I: I I I I I I I units on Parcel A of the Waterfront Project on a first-come, first- served basis during the marketing phase of the Residential Project at market rates and terms. The parties agree to assist, support and cooperate with the City in any discussions or negotiations with the State for the New Submerged Land Lease of Parcel "C-2." The Agency may, at its sole discretion and expense, obtain a marina permi t and construct docking facilities for more than the 30 additional slips. (c) If the City is able to obtain a lease from the State of Florida for Parcel "C-2" so that it can be used for a commercial, pleasure craft marina, then the Agency agrees it will seek to enter into an agreement with the City to sub-lease Parcel "C-2," and if the Agency is able to do so, it may in turn sub-sub- lease Parcel "C-2" to any third party. If the Agency is unable to lease Parcel "C-2" to a third party, but may grant a license, permit or concession to any third party to operate a marina at Par- cel "C-2," then the Agency may grant such a license, permit or concession to a third party or Developer, but Developer shall have no obligation to accept such sublease, license, permit or concession. 3.04 Permits. (a) The Developer shall 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 (except for the Park and Public Improvements permits and the marina permit), and shall bear all costs of preparing such applications, applying for and obtaining such permits, including payment of any and all applicable application, inspection, regulatory and impact fees or charges except as otherwise provided in this Agreement. (b) The Agency shall cooperate with the Developer in obtaining all necessary Permits and the Building Permits required for the construction, completion and opening for business of the Project. If requested by the Developer, the Agency will join in any application for any Building Permit or Permits, or, alternatively, recommend to and urge any governmental authority to which application for a Building Permit or any Permits has been made that such Building Permit or Permits be issued or approved. (c) The Agency shall be responsible for preparing, filing . and pursuing issuance of the Marina Project Permit from the State, and shall be responsible for the payment of all costs for such preparation, filing and pursuit. The Agency agrees to consult with the Developer from time to time during the preparation and review of the application for the Marina Project Permit and keep the Developer apprised of the status of the application. Nothing herein prohibits the Agency from using the Developer or any of the Project Professionals to prepare the Marina Project Permit 17 I I I I I I I I I I I I I I I I I I I application, though any costs incurred as a result of such use shall be the responsibility of the Agency. (d) (1) The Agency's duties, obligations, or respon- sibilities under any section of this Agreement, specifically including but not limited to this Section 3.04, shall 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 regulations. (2) Notwi thstanding any other provisions of this Agreement, any required permitting, licensing or other regulatory approvals by the Agency or the City shall be subj ect 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 Section 26-10(5)(d)-(h) of the City's Land Development Regulations, 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, and the Developer further covenants and agrees to comply with concurrency certification provisions of Section 26-10(5)(e)-(h), of the City's Land Development Regulations. (b) The parties hereto acknowledge and agree that as of the Restated Effective Date, the Project as described in the PUD Ordinance satisfies the concurrency requirements of Florida law. The Agency agrees to seek, within thirty (30) days of the Restated Effective Date, issuance of a concurrenCy compliance certificate and a reservation of services capacity under the City's concurrency management system. The Agency does further agree to maintain such certificate and reservation. The Agency recognizes and 18 I I I I I I I I I I I I I I I I I I I acknowledges that the Developer will rely upon such certificate and reservation in proceeding with the planning and development of the Project, and the parts thereof. The Agency hereby agrees to allocate from such reservation sufficient facility capacity to the Developer in order that the Project be completed as approved in the amended preliminary PUD Ordinance. Such allocation shall be made in such amount as is needed for that part of the Project being developed when requested by the Developer thereof and shall be made by the Agency without delay or development deferral occasioned by application of the concurrency provisions of the Growth Management Act and Section 26-10(5)(e)-(h), of the City's Land Development Regulations. The Developer covenants and agrees with the Agency to not undertake any action or fail to take any action which would cause the City to revoke or invalidate the concurrency compliance certificate or the reservation of services capacity. 3.06 Not a Development Order or Permit. The parties do hereby acknowledge, agree and represent that this Agreement is not intended to be and should not be construed or. deemed to be a "development order" or development permit" within the meaning of those terms in Section 163.3164, Florida Statutes. 3.07 Subdivision Plat. (a) The Agency agrees to prepare a Subdivision Plat and file such plat with the appropriate governmental authorities no later than twenty (20) days after the approval of a revised PUD application. All costs of preparing and filing the Subdivision Plat shall be paid by the Agency. (b) The Subdivision Plat shall include all easements contemplated by this Agreement pertaining to the proj ect Site, including drainage, public utilities and irrigation easements. The subdivision plat utilities easement to Parcel "A" shall parallel the ingress and egress easement to the parcel, which is the roadway to be constructed by the Agency as provided herein. The water utility easement shall, however, also be provided in the subdivision plat so as to allow a looped system for Parcel "A" if such a design is appropriate. ARTICLE 4. PLANS AND SPECIFICATIONS. 4.01 Revised Site Plan. Prior to the Restated Effective Date, the Agency has delivered a revised site plan to the Developer, which has been reviewed by the Developer and accepted. The Agency will process and pay for any revisions to the PUD and DRI approval necessitated by the Revised Site Plan. 4.02 Preparation of Plans and Specifications. 19 I I I I I 'I I I I I " I I. I I I I I I I (a) The Developer is responsible for and shall pay the cost , of preparing, submitting and obtaining approval of the Plans and Specifications for Parcels "A," "B," "C," "D," "D-l" and "I." (b) The Developer shall retain the Project Professionals to prepare the Plans and Specifications, and shall notify the Agency of the names of such professionals and any subsequent changes thereto or additional Project Professionals retained with respect to the Project. The Developer shall cause the Project Professionals to prepare the Plans and Specifications. (c)(l) The Agency does hereby consent to the preparation of the Plans and Specifications, and any revisions thereto, by the Project Professionals, and the Agency will not withhold approval of the Plans and Specifications because they were prepared by the Project Professionals. The Agency hereby acknowledges and agrees that the selection of the Project Professionals is the sole respon- sibility of, and within the discretion of, the Developer, and the Agency will not participate, and has not previously participated, in such selection by the Developer. (2) The parties hereto mutually acknowledge and agree the Project Professionals are not, individually or collectively, agents or representatives, either expressed or implied, of the City or the Agency. (d) The Developer shall file the Plans and Specifications for that part of the Project to be located on a Parcel with the Agency prior to construction on that parcel. The Plans and Specifications contemplated by this subsection (d) shall be sufficient for a determination by the City required by the PUD Ordinance, and need not be plans and specifications of the detail required for review by the City prior to issuance of a Building Permit. 4.03 Aqency Review of Plans and Specifications. (a) The Developer and Agency acknowledge that the Plans and Specifications must be submitted to the City for review and approval by the City and are subject to the requirements of the PUD Ordinance. Agency review and approval of the Plans and specifications is not a condition or requirement for development of the Project, or any part thereof, nor is it a precondition or requirement for City approval of the Plans and Specifications or ~ompliance with the PUD Ordinance. But nothing herein prohibits the Developer from submitting any proposed Plans and Specifications, or part thereof, to the Agency for review and comment. (b) If the Developer submits the Plans and Specifications, or any part thereof, to the Agency for review, upon receipt thereof, the Agency agrees to diligently proceed with and complete 20 I I I I I I its review of the Plans and Specifications and respond to the Developer as soon as reasonably possible after receipt thereof and advise the Developer in writing of the Agency's objections thereto. The Agency shall notify the Developer in writing within a reasonable period that the Plans and Specifications have or have not been approved, and in the case of disapproval, the specific reason(s) for such disapproval. (c) If the Agency gives written notice of specific objections to or deficiencies in the Plans and Specifications a~. provided in subsection (b), the Developer may, in its discretion)) diligently and r~asonably negotiate with the Agency to resolve such objections. At any time the Developer may terminate such negotiations and submit the proposed Plans and Specifications for review by the City pursuant to the PUD Ordinance. II I I Cd) If the Plans and Specifications submitted to the Agency by the Developer substantially comply with this Agreement and further the purposes of the Plan, the Agency shall approve the Plans and Specifications as submitted, and shall notify the City of such approval and recommend the City approve such Plans and Specifications as contemplated by the PUDOrdinance. I I I I I I I I I I (e) If the Developer does not dispute the objections to proposed Plans and Specifications contained in any notice from the Agency, it shall submit revised Plans and Specifications satisfying such objections. Any changes in the Plans and Specifications made by the Developer in response to such a notice shall be made without charge to the Agency. (f) Failure of the Developer to revise any proposed Plans and Specifications not approved by the Agency, shall not prohibit, prevent or otherwise stop the Developer from filing such Plans and Specifications with the City pursuant to the PUD Ordinance. (g) Nothing herein prevents or inhibits the Developer from making changes in the Plans and Specifications after such Plans and Specifications have been reviewed and approved, or have been deemed approved, by the Agency pursuant to this Section 4.03 without the approval of the Agency, provided, however, in such an event the Agency shall not be deemed to have reviewed said Plans and Specifications as changed and made a recommendation to the City concerning such changes. 4.04 Aqency's Scope of Review of Plans and Specifications. (a) The scope of review by the Agency of the Plans and Specifications shall be solely for the purposes of determining that (i) the improvements described in the Plans and Specifications for the Project satisfy the requirements of this Agreement, (ii) the requirements of the PUD Ordinance are satisfied, and (iii) the 21 I I I I I I I II I I I goals, standards, and intent of the Plan are met to the reasonable satisfaction of the Agency. (b) The scope of review and basis for approval of the Plans and Specifications and any amendments or revisions thereto, by the Agency set forth in this Section 4.04, shall not in any way limit the rights, responsibilities, obligations, authority or powers of the City (or any other appropriate governmental official, agency or entity having jurisdiction over the Project or the Project Site, or any part thereof) from acting in its governmental and regulatory capacity, including acting under zoning and building codes and any other applicable laws, codes, ordinances and regulations. (c) The Agency shall not require any change in or withhold approval of, or give a notice of its objections for, any or all of the Plans and Specifications, including any amendments or revisions thereto, based upon any objection that would require violation of any applicable zoning or building law, code, ordinance, regulation or ruling in order to satisfy such objection, nor can the Developer be compelled to make any change in any of the Plans and Specifications, including any amendments or revisions thereto, which change would be in violation of any applicable zoning or building law, code, ordinance, regulation or ruling or which would cause the Plans and Specifications to be in violation. (d) The Agency shall not be responsible in any way for any error or omission in the Plans and Specifications either before or after approval thereby, or for the failure of such Plans and Specifications, or any part thereof, either before or after approval thereby, to comply with any law, code, ordinance or regulation. I I I I I I I I 4.05 Proiect Inqress and Eqress. It shall be the responsibility of the Developer to design the Project so that there will be pedestrian ingress and egress to the Park and the Pedestrian Walkway and Bikepath and shall provide pedestrian ingress and egress to the Park and Pedestrian Walkway and Bikepath to an extent reasonably acceptable to the Agency, including reasonable public access to the waterfront as reflected in the PUD Ordinance. The Developer agrees to execute such agreements, documents, deeds, or instruments necessary to insure such ingress and egress and public use. ARTICLE 5. PUBLIC IMPROVEMENTS PROJECT PLANS, BUDGET AND FINANCING. 5.01 Plans and Specifications. (a) The Developer is not responsible for additional Public Improvements Project Plans and Specifications, specifically the Park, the Nesbit Street improvements and the Retta Esplanade improvements. 22 I I I I I I I I I I I I I I I I I I I (b) The Public Improvements plans and specifications included maintenance specifications for the Pedestrian Walkway and Bikepath in the Park. Developer is responsible for reimbursing the Agency for the expenses of the Public Improvements, completed prior to this Second Amended and Restated Agreement for Development and Disposition of Property in the amount of $183,888.88, which shall be repaid to the Agency over time in accordance with the Public Improvements Project repayment schedule attached as Exhibit "J". The Developer acknowledges and agrees to make the payments contemplated by that schedule at the times and in the amounts so indicated. Failure of the Developer to make any such payment shall constitute a material breach of this Agreement. In the event a Parcel is conveyed or leased to the Developer prior to the end of the time period specified in Exhibit "J," the Public Improvements Project reimbursement payment for such Parcel shall be paid to the Agency on the Closing Date or Lease Commencement Date for such Parcel, except for Parcel "A." If Parcel "A" is conveyed prior to the end of the period specified in Exhibit "J," one-third (1/3) of the required Public Improvements Project reimbursement payment shall be paid to the Agency on the Closing Date for Parcel "Ai" one-third (1/3) of such payment shall be paid to the Agency upon the issuance of the building permit for the second building to be constructed on Parcel "A" or the expiration of the period specified in Exhibit "J," whichever occurs first; and one-third (1/3) of such payment shall be paid to the Agency upon the issuance of the building permit for the third building to be constructed on Parcel "A" or the expiration of the period specified in Exhibit "J," whichever occurs first. 5.02 Proiect Financinq. (a) The cost of additional Public Improvements shall be paid from funds legally available to the Agency. The Agency covenants and agrees with the Developer to exercise its best reasonable efforts to obtain lawfully available funds in sufficient amounts to pay the costs of additional Public Improvements and to have such funds available when needed to pay such costs. (b) In no event shall the obligations, either express or implied, of the Agency under the provisions of this Agreement to pay the costs of the Public Improvements Project be or constitute a general obligation or indebtedness of the City or the Agency, or both, or a pledge of the ad valorem taxing power of the City or the Agency, or both, 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. The Developer, any Project Lender or any Contractor, subcontractor, materialman, or supplier for any part of the Project, shall not have the right to compel the exercise of the ad valorem taxing power of the Agency or any other governmental entity on any real or personal property or taxation in any form to pay the Agency's obligations or undertakings hereunder. 23 I ,I I I I I I I I I I I I I I I I I I ARTICLE 6. PROJECT FINANCING. 6.01 Construction Financing. (a)(1) The Developer shall use its reasonable best efforts so that no later than sixty (60) days before commencement of construction on any Parcel, the Developer shall have obtained from a Construction Lender a commitment to provide the Construction Financing for that portion of the Project on that Parcel. No later than said sixtieth (60th) day before commencement of construction, the Developer shall notify the Agency that it has obtained said financing and provide to the Agency the name and address of the Construction Lender, the amount of such financing, the interest rate and maturity date, and a copy of the executed Construction Financing agreement. However, if the Construction Financing includes a payment and performance bond in favor of both the Construction Lender and the Agency, providing for sixty (60)-day notice to the Agency of any intent to cancel the bond, and if a copy of the bond is provided to the Agency, then; for as long as the bond is maintained in force, the Agency shall look to the Bond Company for satisfaction of any obligation under this Article 6 and the Developer and Construction Lender shall only be obligated concerning subparagraphs (a)(1) and (a)(3) of Section 6.01. (2) The Agency shall have an affirmative right to cure any default by the Developer under the Construction Financing, which right shall be expressly provided for in the documents providing for the Construction Financing. The parties recognize and acknowledge that the Agency's right under this paragraph (2) is not intended to be superior or ahead of any lien or right of the Construction Lender to enforce its rights and remedies under the Project Construction Documents pertaining to the Construction Financing. (3) For each part of the Project located on each Parcel, the Developer thereof covenants and agrees with the Agency that the proceeds of the Construction Financing shall be solely for the purpose of paying costs and fees related to that part of the Project and that such proceeds, together with its own funds or other funds available to it, shall be sufficient to pay the costs of acquiring or leasing the Parcel and the development, construction and completion of that part of the Project located on that Parcel. (b) If performance and payment bonds are not required by a Project Lender or by any regulatory agency for Construction Financing for any Parcel in the Waterfront Project, the Agency may require such payment and performance bonds, by written notice given prior to the start of construction, provided the premium for such bonds is paid by the Agency. 24 I I I I I I I I I I I I I I I I I I I 6.02 Permanent Financinq. the Permanent thereto, shall (specifically The Developer acknowledges and agrees that Financing, and any documents or instruments relating be subject to the provisions of this Agreement including, but not limited to) Section 6.03 hereof) to the extent this Agreement applies to a Parcel subject to that Permanent Financing. 6.03 Notice of Developer's Default. (a) The Developer covenants and agrees with the Agency that any Project Financing Documents shall include provisions that if the Project Lender declares the Developer to be in default or if an event of default has occurred under the Project Loan Documents, such Project Lender shall promptly give written notice thereof to the Agency by certified mail, return receipt requested at its respective address last given to the Project Lender by the Developer prior to such notice; provided, however, the failure of the Developer to provide the Agency's address to the Project Lender or for the Project Lender to receive any such notice shall not consti tute a material breach or default of this Agreement, nor shall it constitute a waiver by or preclude or delay the Agency from proceeding with or enforcing any right or remedy available to it under this Agreement, nor shall it constitute a waiver by or preclude or delay the Project Lender from enforcing any right or remedy available to the proj ect Lender. The notice from the Project Lender to the Agency shall state the basis of the default by the Developer, shall include a description of the Project Loan Documents, shall identify the particular provision thereof under which the Developer is in default and shall include copies of any pleadings in any proceeding instituted by the Project Lender incident thereto. (b) Any notice from the Agency to the Developer specifying an event of default by the Developer under either Section 16.01 or 16.02 hereof shall, at the same time it is provided to the Developer pursuant to either Subsection 16.01(b)(2) or 16.02(b)(1) hereof, be mailed to any Project Lender by certified mail, return receipt requested, at its address last given to the Agency by the Developer prior to such notice; provided, however, the failure of the Agency to mail any such notice or the Project Lender to receive any such notice shall not constitute a material breach or default of this Agreement by the Agency, nor shall it . constitute a waiver by or preclude or delay the Project Lender from proceeding with or enforcing any right or remedy available to it under the Project Financing, nor shall it constitute a waiver by or preclude or delay the Agency from enforcing any rights or remedies available to Agency in connection with this Agreement. The notice from the Agency to the Project Lender shall state the basis of the default, the particular provision of this Agreement under which the 25 I I I I II I I I I I I I I I I I I I I Developer is in default and shall include copies of any pleadings in any proceedings instituted by the Agency incident thereto. 6.04 Cure of Developer's Default by Bond Company or Construction Lender. (a) (1) Following the Agency providing the notice under Subsection 6.03(b) hereof, a Construction Lender or Bond Company may, at its election, cure or remedy the default by the Developer described in such notice. If the Construction Lender or Bond Company elects to cure such default, it shall give notice of such election to the Agency and the Developer within sixty (60) days after the Agency issued its notice of default by the Developer as provided in Section 16.01 or 16.02 hereof. (2) Provided the Bond Company or Construction Lender proceeds with due diligence, the Agency agrees not to exercise any right or remedy available to it resulting from the Developer's defaul t described in the notice and which the Bond Company or Construction Lender has elected to cure for such period of time as shall be reasonably necessary for the Construction Lender or Bond Company to cure or remedy such default, including any time reasonably necessary for the Construction Lender or Bond Company to obtain possession of the Project Site, if possession is necessary to enable the Construction Lender or Bond Company to cure or remedy such default. (3) The Project Lender or Bond Company shall not be precluded by the terms of this Agreement from curing any default by the Developer hereunder, notwithstanding an event of default by the Developer as described in Subsections 16.01(a)(2) and 16.02(a)(2) shall occur. (b) If a default by the Developer under this Agreement is timely cured or remedied by the Project Construction Lender or Bond Company pursuant to this Section 6.04, then the Agency shall not have any rights or remedies against the Developer with regard to such default, except in such an event, the Developer shall be obligated to pay and the Agency may recover from the Developer any fees, costs or other expenses (including reasonable attorneys fees) incurred by the Agency as a result of said default by the Developer, plus interest on such fees, costs or other expenses from the date they were incurred at an annual percentage rate of eighteen percent (18%). (c) As to any particular Parcel, if the Construction Lender or Bond Company elects to cure or remedy the Developer's default hereunder as provided in Subsection 6.04(a) hereof, it shall then be subject to and bound by the provisions of this Agreement to the extent such provisions apply to that Parcel and the actions required to be taken to remedy or cure said default that, but for 26 I I I II I I I I I I I I I I I I I I I the default by the Developer, would have been applicable to the Developer. (d) If, as a result of the Construction Lender or Bond Company curing or remedying a default by the Developer under this Agreement, the Construction Lender or Bond Company completes the construction of that part of the Project for which the default occurred)': upon receipt of a written request by the Construction Lender or Bond Company to the Agency for a Completion Certificate, the Agency shall execute and deliver to the Construction Lender or Bond Company a Construction Completion Certificate for that part of the Project, in the same manner and procedure as if the Developer has requested such a certificate under Section 8.07 hereof. (e) Subsequent to a default under this Agreement by the Developer, if the Construction Lender and Bond Company: (1) do not timely elect to cure such default as provided in Subsection 6.04(a) hereof, or (2) make such election and proceed to construct and complete the Project, but fail to complete such construction by the Project Completion Date (subject to extensions for Unavoidable Delays) and such failure shall not have been cured within sixty (60) days (or such longer period as may be reasonably necessary) after written demand by the Agency, provided the Construction Lender or Bond Company proceeds promptly and thereafter prosecutes the curing of such default with all due diligence, then the Agency may proceed under subsection 6.06(b). 6.05 Construction Lender Not Obliqated to Construct. (a) If the Construction Lender elects not to cure a default by the Developer hereunder as provided in Subsection 6.04 (a) hereof, the Construction Lender and any other holder who obtains title to or possession of the Project Site, or any part thereof, as a result of foreclosure proceedings or any other action in lieu thereof, including (1) any other party who thereafter obtains title to the Project Site or such part from and through such holder or, (2) any other purchaser at a foreclosure sale, or (3) any other grantee under a deed in lieu of foreclosure, and any of such parties' successors and assigns, shall not be obligated by this Agreement to construct or complete the Project or to guarantee such construction or completion or to perform any of the Developer's 'other agreements, obligations or covenants under this Agreement. (b) Nothing in this Section 6.05 or any other provisions of this Agreement shall be deemed or construed to permit or authorize any Construction Lender or Bond Company or any other party obtaining title to or possession of the Project Site, or any part thereof, to devote the Project Site, or any part thereof, to any use, or to construct any improvements thereon, other than the uses 27 I I I I I. i. I I I I I I il I I I I I I and improvements provided in the PUD Ordinance and in the Plans and Specifications, unless prior to commencement of such use, approval thereof is obtained from the Agency, which approval shall not be unreasonably withheld. 6.06 Option to Pay Mortqaqe Debt or Purchase Proiect Site. (a) Any mortgage instrument pertaining to the Project Site in effect prior to issuance of the Construction Completion Certificate shall provide that following a default by the Developer which is not cured, the Agency is entitled, upon giving reasonable written notice to the Developer, the Construction Lender and any other holder of such a mortgage, to an assignment of the mortgage securing the Construction Financing by paying to the Construction Lender an amount of money not to exceed a sum equal to. the amount of money advanced by the Construction Lender to the Developer with respect to the Project Site, together with unpaid accrued interest on such amount, prepayment penalties, and all other accrued charges of the Construction Lender (including, without limitation, reasonable attorneys' fees incurred as a result of a default by the Developer under the Construction Financing) . (b) If prior to the Completion Date for any part of the Project on a particular Parcel, the ownership of the part of the Project located thereon has vested in the Construction Lender or any other person by foreclosure or any other action in lieu thereof, the Agency shall be entitled (and any mortgage instrument pertaining to the Project Site in effect prior to issuance of the Construction Completion Certificate shall so provide), at its election exercisable within sixty (60) days after the Construction Lender or other person obtains or receives title to the Parcel or part of the Project Site by notice to such Construction Lender or other person, to a conveyance of the Parcel or that part of the Project for which ownership has vested in the Construction Lender or other person to the Agency upon payment to the Construction Lender or other person of an amount not greater than the sum of (1) the larger of the money advanced by the Construction Lender or other person to the Developer with respect to that Parcel and due and owing at the time of the foreclosure or any other action in lieu thereof or the amount paid at foreclosure, less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings; (2) all reasonable expenses of the Construction Lender or other person incurred in connection with the foreclosure of the -Parcel or part of the Project; (3) the expense, if any, incurred by the Construction Lender or other person in and as a direct result of the subsequent management of the Project; (4) any prepayment penalties and (5) an amount equivalent to the interest that would have accrued on the aggregate of such amount had all such amounts become part of the money advanced by the Construction Lender or other person to the Developer with respect to the Project Site and such money advanced had continued to be due and owing; and less 28 I I I I I I I I I I I il II I I I I I I income resulting from the management of the Project subsequent to the termination of foreclosure proceedings or the date that the Construction Lender or other person obtained title to the Project Site by deed in lieu of foreclosure, whichever is the earlier. 6.07 Aqency Cures Developer's Default. rfM prior to the issuance of the Construction Completion Certificate;dthe Developer defaults under this Agreement or under, and to the holder of, any mortgage or other instrument creating an encumbrance or lien upon the Project Site, or any part thereof, the Agency may cure such default or breach. In such an event, the Agency, as the case may be, shall be entitled, in addition to and without limitation upon any other rights or remedies or payment of any other amounts to which it shall be entitled by this Agreement, operation of law, or otherwise, to reimbursement from the Developer for all costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by the Agency in curing such default, together with interest thereon at a per annum rate equal to eighteen percent (18%). Until such amount is paid, the Agency shall have a lien on the Project Site for the amount of such reimbursement; provided, that any such lien shall be subject to the lien of any then existing mortgage of the proj ect Site in favor of the proj ect Lender securing all or any part of the Project Financing. ARTICLE 7. PROJECT SITE. 7.01 Ownership of the Site. The Agency is the owner of all of the Project Site, except for Parcel IC-2" and the public street crossing Parcel "1." Prior to closing on Parcel "1," the City has agreed to vacate the public street crossing Parcel "1" and convey such land to the Agency. 7.02 Parcels. (a) The Project Site consists of approximately 23.34 acres and has for purposes of the Project and the disposition of the Project Site for development of the Project been divided into Parcels, which are depicted on the Parcel Plan. Any reference to an individual Parcel in this Agreement is to the letter identifying that Parcel on the Parcel Plan. (b) The Parcels identi f ied on the Parcel Plan (and the currently contemplated use of each) are as follows: Parcel Proposed Use C 60 condominium units up to 25,000 sq. ft. n.r.a. retail and up to 10,000 sq. n.r.a. of office up to 18,000 sq. ft. n.r.a. retail of ft. A B of 29 I I I I I I I I I I I I I I I I I I I C-2 Marina basin D up to 40,000 sq. ft. n.r.a. of retail and up to 10,000 sq. ft. n.r.a. of office D-1 up to 25,000 sq. ft. n.r.a. of commercial office E Park I up to 15,000 sq. ft. n.r.a. of commercial office or retail (c) The uses and disposition of each Parcel shall be as follows: (1)(i) The Residential Project will be developed on Parcel "A" and shall consist of (60) condominium units in three (.3) buildings of twenty (20) units each. (ii) Upon the Notice of Intention to Purchase Parcel "A" being timely given by the Developer in accordance with the Takedown Schedule, the Agency shall convey Parcel "A" by Fee Simple Deed. to the Developer for the Purchase Price described in subparagraph (iii) below. The Agency shall receive a second mortgage on the property in the form as provided in Exhibit "M," which shall be subordinate to that of the Construction Lender, to insure that payments by Developer will be made. (iii) The Purchase Price of Parcel "A" shall be an amount equal to Eleven Thousand Seven Hundred Fifty Dollars ($11,750) per each of the twenty (20) condominium units in the most southerly building to be constructed on Parcel "Ai" Eleven Thousand Seven Hundred Fifty Dollars ($11,750)for the first ten (10) units and Sixteen Thousand Seven Hundred Fifty Dollars ($16,750)for the second ten (10) units in the middle building to be constructed on Parcel "Ai" and Sixteen Thousand Seven Hundred Fifty Dollars ($16,750) per condominium unit in the most Northerly building to be constructed on Parcel "Ai" all payable at the closing of each individual unit. (iv) The parties agree an easement will be needed across the Park to permit a road for the benefit of Parcel "A." Such easement shall be reflected in the subdivision plat, and is shown on the Revised Site Plan. Such road shall be constructed by the Agency to City street Specifications (with swales, Type B stabilization, Option Base Group 9, and one and one-half inch (1!") asphalt Type III), and shall include water and sewer lines paralleling the road, and the Developer shall contribute Twenty Thousand Dollars ($20,000.00) toward the cost of this construction. After construction, the road shall be maintained by the Agency or the City. Construction of the road shall be completed within four. (4) months after the Developer gives Notice of Intention to Purchase Parcel "A." Payment of Developer's contribution of Twenty Thousand Dollars ($20,000.00) toward the cost of the road shall be due on 30 I ! I II I I I I I I I I I I I I I I I I the scheduled Closing Date for Parcel "A," whether or not the closing actually occurs. (v) Construction of the first building on Parcel "A" shall commence within twelve (12) months after the Parcel Closing Date. Construction of the second building on Parcel "A" shall commence within three (3) years after issuance of a certificate of occupancy for the first building. Construction of the third building on Parcel "A" shall commence within three (3) years after issuance of a certificate of occupancy for the second building. (vi) Parcel "A" shall use the Park pond for its stormwater drainage. There is adequate capacity in the pond design as modified by the raised weir structure indicated in the graphic depiction, Exhibit "H," to accommodate the Parcel "A" .stormwater treatment requirements of all governmental agencies with jurisdiction. Any necessary raising of the weir shall be at the cost of the Agency. (vii) While the condominium units on Parcel "A" are being marketed, the Developer may use Parcel "I" or Parcel "C" for marketing, in accordance with City regulations governing such sales from a trailer or mobile structure. (viii) Upon the Agency's conveyance of Parcel "A," Developer shall contribute to the Punta Gorda Garden Club the sum of Five Thousand Dollars ($5,000), one-half of which shall be required to be spent in additional landscaping in the Park. In addition, if the development and construction of the Residential Project on Parcel "A," Pursuant to the Revised Site Plan, encroaches on the existing "Friendship Garden," Developer shall relocate said "Friendship Garden" to a site within the Park agreed to by the City and the Agency. (2)(i) A portion of the Retail Project shall be developed on Parcel "B." (ii) Parcel "B" may be leased by the Developer from the Agency, but the Developer must make its election to lease Parcel "B" or a Substitute Parcel within thirty-six (36) months of the Takedown Schedule Commencement Date. (iii) If the Developer elects to lease Parcel "B," the terms and conditions of the lease shall be determined as provided in Section 7.06, and rent payments are to be: (A) waived prior to the issuance of the Certificate of Occupancy; (B) waived for the first two years after the issuance of the Certificate of Occupancy; and (C) subordinated to operating expenses and debt service for the third year of operation. (iv) Developer may subdivide Parcel "B" into three (3) development pads upon notifying Agency. The Developer shall have 31 I I I I I I I I I I I I I I I II II I I the right to either lease the sub-parcels to third parties or cause the Agency to sell the sub-parcels to third parties pursuant to this subsection (iv). The purchase price of Parcel "B" if sold to a third party by the Agency at the direction of Developer shall be fair market value. The Agency shall receive sixty percent (60%) of the net purchase price and forty percent (40%) shall be retained by the Developer. (A) For three hundred sixty-five (365) days from the date of execution of this Agreement, Agency shall have the right to acquire Developer's right to all of Parcel "B" for forty percent (40%) of the fair market value of Parcel "B," as determined by the provisions of Section 7.09 (but with the Agency initiating the appraisal process, rather than Developer). (B) If, during the three hundred sixty-five (365) days from the date of execution of this Agreement, Developer receives an offer to purchase or lease all or a portion of Parcel "B," which it desires and intends to accept, then Developer shall give the Agency thirty (30) days' notice in writing of such offer, setting forth the name and address of the offeror, the amount of the purchase price or lease rate, and all of the terms and conditions of such offer. Agency shall have the right to acquire Developer's right to all of Parcel "B" by giving Developer written notice of its intention to acquire Developer's right within said thirty (30)-day period as provided in paragraph (A) above. Closing shall occur within ninety (90) days after the said notice by Agency. (C) In the event Agency does not give notice of its intention to acquire Developer's right within the thirty (30)-day period given under paragraph (B), then the Agency's right to acquire Developer's right to Parcel "B" shall terminate. In the event Agency gives notice but fails to close, then Developer shall have all rights and remedies provided by law for breach of contract and Agency shall have no further right to acquire Parcel "B." (D) If acquired by the Agency, Parcel "B" shall only be used for park purposes as long as Developer retains the right to acquire any Parcel under this Agreement. (v) There shall be perpetual cross-easements regarding use of Parcels "B," "c," "C-2," and "D" in the Subdivision Plat for ingress and egress. 2. " (3)(i) The Marina Project shall be developed on Parcel "C- (ii) After the Closing Date for Parcel "A," the Agency will proceed to finalize the New Submerged Land Lease and obtain the Marina Project Permit. Upon Agency obtaining the New Submerged 32 I I I I I I I I I I I I I I I I I I I Land Lease, Developer may construct docking facilities for an additional thirty (30) wet slips, which shall be those closest to the existing twenty (20). If Developer elects to construct such wet slips, they shall be constructed in accordance with the Marina Project Permit; they shall include water and electrical facilities; and Developer shall perform the associated dredging, if any, required for the additional thirty (30) slips. The New Submerged Land Lease and the construction of the new facilities shall conform to the revised marina plan as indicated in the Revised Site Plan. Agency may, at its discretion and expense, obtain approvals and construct additional docking facilities. (iii) The public boat ramp may remain at Agency's discretion. Developer shall have no obligation concerning the operation or maintenance of the ramp or parking therefor. (iv) The Agency shall exercise its diligent, good faith, reasonable efforts to lease from the State of Florida property within the northeast right-of-way of U.S. Highway 41 adjacent to the Project Site. If such lease permits it, the Agency shall use this area to provide parking for the public boat ramp and the Marina Project. (v) The Agency agrees to grant an easement across the Pedestrian Walkway and Bikepath adjacent to the Marina Project to permit ingress and egress to boats docked at the Marina and to permit such other uses customary for the operation and use of a marina, including utilities and fuel lines to service the boats using the Marina Project. (vi) In the event Developer constructs the dock facilities for thirty (30) additional wet slips, then those slips shall be available to the condominium purchasers on Parcel "A" of the Waterfront Project on a first come, first served basis at market lease rates and terms. Upon the sale of the last condominium on 32A I I I I I I I I I I I I I I I I I I I Parcel "A," then the said thirty (30) wet slips may be rented to the general public. Condominium owners in the Waterfront Project shall thereafter have no right to rent the spaces greater than the general public. Nothing herein shall prevent or preclude the rental of slips to the general public on a month-to-month basis during the condominium marketing period, as long as the slips are available to the condominium purchasers as needed. (4)(i) A portion of the Retail Project shall be developed on Parcel "C." (ii) Upon g.1v.1ng the Notice of Intention to Acquire Parcel "C" according to the Takedown Schedule, the Developer shall either purchase or lease Parcel "C." (iii) purposes. Developer may divide Parcel "C" to use for retail (iv) The purchase price of Parcel "c" shall be fair market value, and Developer shall pay Agency seventy-five per cent (75%) of the net purchase price, while Developer retains twenty-five per cent (25%). If Parcel "C" is leased for retail uses, the lease terms shall be controlled by Section 7.06 except that rent payments are: (A) waived prior to the issuance of the Certificate of Occupancy; (B) waived for the first two years after the issuance of the Certificate of Occupancy; and (C) subordinated to operating expenses and debt service for the third year of operation. (v) Parcel "D" The Subdivision Plat shall include an easement across for public access to the boat ramp. (5)(i) A portion of the Retail Project shall be developed on Parcel "D." (ii) Parcel "D" may be leased by the Developer from the Agency, but the Developer must make its election to lease Parcel "D" cr a Substitute Parcel within thirty-six (36) months of the Takedown Schedule Commencement Date. (iii) If the Developer elects to lease Parcel "D," the terms and conditions of the lease shall be determined as provided in Section 7.06 and rent payments are to be: (A) waived prior to the issuance of the Certificate of Occupancy; (B) waived for the first two years after the issuance of the Certificate of Occupancy; and (C) subordinated to operating expenses and debt service for the third year of operation. (iv) Developer may subdivide Parcel "D" into four (4) development pads upon notifying Agency. The Developer shall have the right to lease the sub-parcels to third parties. 33 I I I I I I I I I I I I I I I I I I I (6)(i) The Office Project shall be developed and constructed on Parcel "0-1." (ii) Parcel "0-1" may be purchased by the Developer from the Agency for Ten ($10.00) Dollars by Developer giving Notice of Intention to Acquire Parcel "0-1" as provided in Section 7.03. The nominal money consideration for this purchase reflects a portion of the consideration due to Waltemath for the enlarged Park on the former Parcel E. The Developer shall provide notice of Takedown for Parcel "0-1" wi thin 12 months of the Takedown Schedule Commencement Date. (iii) Stormwater drainage shall be permitted from Parcel "0- 1" to the pond located in the Park. There is adequate capacity in the pond design as modified by the raised weir structure indicated in the graphic depiction, Exhibit "H," to accommodate the Parcel "0-1" stormwater treatment requirements of all governmental agencies with jurisdiction. Any necessary raising of the weir shall be at the cost of the Agency. (iv) The Commencement Date for construction on Parcel "0-1" shall be twelve (12) months after Closing Date or twelve (12) months after groundbreaking on the County Judicial Center Project, whichever is later. (v) Agency shall provide a location for directional signs, in accordance with the City's sign ordinance, on land adjacent to Parcel "I" at the corner of Marion Avenue and Nesbit Street and shall provide direction and location signs within the Waterfront Project for Parcel "0-1." (7)(i) The Commercial Project shall be developed and constructed on Parcel "I." (ii) Parcel "I" may be leased by the Developer from the Agency, but the Developer must make its election to lease Parcel "I" or a Substitute Parcel wi thin thirty (30) months of the Takedown Schedule Commencement Date. (iii) The Lease Commencement Date shall be no later than the date set forth in the Takedown Schedule, subject to adjustment as provided in this Agreement. The terms and conditions of the lease shall be as provided in Section 7.06 (a); however, the provisions of the balance of Section 7.06 shall not apply. Rent payments shall be as follows: (a) $5,500.00 per year; (b) waived prior to issuance of Certificate of Occupancy; (c) waived for the first two years after the Certificate of Occupancy is issued; and (d) subordinated to operating expenses and debt services for the third year of operation. 34 I I I I I I I I I I I I I I I I I I I (i v) Developer may subdivide Parcel "I" into three (3) development pads upon notifying Agency. The Developer shall have the right to lease the sub-parcels to third parties. (v) Stormwater drainage shall be permitted from Parcel "I" to the pond located in the Park. There is adequate capacity in the pond design as modified by the raised weir structure indicated in the graphic depiction, Exhibit "H," to accommodate the Parcel "I" stormwater treatment requirements of all governmental agencies with jurisdiction. Any necessary raising of the weir shall be at the cost of the Agency. (vi) The Agency shall make provision for the Trabue Cottage, currently located on Parcel "I," to be placed adjacent to Parcel "I" on the corner of Nesbit street and Marion Avenue. (v i i) Only as it relates to the disposition of Parcel "I," this Agreement is contingent upon the Agency's publication of notice, within thirty (30) days after execution of this Agreement, of its intention to dispose of Parcel "I" pursuant to this Agreement and its solicitation of alternate proposals for the development and disposition of Parcel "I" in accordance with the Plan, as provided in Florida Statutes, Section 163.380(3). Should the Agency accept any proposal for the development and disposition of Parcel "I," other than as called for by this Agreement, the Agency shall pay the Developer the sum of $200,000.00 as substitute partial compensation for the loss of development rights to the Justice Center Site and the former Hotel Site. (8) Developer may give Notice of Intention to Purchase (Lease) divided portions of Parcels "B," "C," "D" and "I" at different times, provided Notices of Intention to Purchase (Lease) all portions of such Parcels are given prior to the date set forth for such Parcels in the Takedown Schedule. Failure to give Notice of Intention to Purchase (Lease) any portion of any such Parcel by the date set out in the Takedown Schedule shall constitute a Parcel Default. Only whole Parcels can be substituted for other whole Parcels in the Takedown Schedule. If a Parcel is divided and only a portion is conveyed or leased, such portion shall be planned and developed in such fashion as to be self-sufficient if other portions are not developed and so as to provide for the intended development on other portions of such Parcel in accordance with the Revised Site Plan. (9) (i) The Park and part of the Pedestrian Walkway and Bikepath were developed and constructed on Parcel "K," and were or will be dedicated for permanent, perpetual public use, enjoyment and benefit on the Subdivision Plat and such other action by the Agency or the Developer, or both, as may be reasonably necessary and appropriate. In accordance with the Revised Site Plan, additional Park is to be created and dedicated by the Agency on a portion of the original Parcel "E." Any and all improvements to 35 --'--- I I I I I I I I I I I I I I I I I I I the said additional Park shall be constructed and maintained at the sole cost of Agency. (ii) Part of the Pedestrian Walkway and Bikepath were developed and constructed on Parcel "K-I," and were or will be dedicated for permanent, perpetual public use, enjoyment and benefit on the Subdivision Plat and by such other action by the Agency or the Developer, or both, as may be reasonably necessary and appropriate. (iii) The depictions of Parcels ilK" and "K-I" on the Parcel Plan are for illustrative purposes and the parties acknowledge and agree the final boundaries of such parcels shall be subject to the Revised Site Plan and the Survey (as that term is defined in Section 7.04(a)(2)). This paragraph is intended to allow for minor boundary changes to correspond to the Revised Preliminary PUD Ordinance. In addition to Parcel "K" and Parcel "K-I", it is the intent of the parties that the public plazas on Parcels liB" and "D" be incorporated into the Pedestrian Walkway and Bikepath. 7.03 Notice of Intention to Purchase or Lease. (a) For each Parcel which the Developer elects to purchase or lease as provided herein, the Developer shall give notice to the Agency of its election to either purchase in fee or lease, such Parcel, as the case may be, by the date set forth in the Takedown Schedule for that Parcel. Such notice shall be given in the manner provided in Section 22.03. (b) In lieu of the notice contemplated by subsection (a), the Developer may, no later than sixty (60) days before the date set forth in the Takedown Schedule for a Parcel to be acquired or leased, give notice of its intention to substitute another Parcel for the one contemplated by the Takedown Schedule to be acquired or leased. If notice is timely given of the Developer's election to purchase or lease a Substitute Parcel, as the case may be,.then the dates, time periods, conditions, obligations, duties and actions applicable to the Parcel originally contemplated by the Takedown Schedule (including the repayment schedule and obligations set forth in the Public Improvements Project Repayment Schedule attached hereto as Exhibit IIJ") shall be applied to the Substitute Parcel. The Parcel substituted shall then be subject to the date for purchase or lease, as the case may be, set forth in the Takedown Schedule originally applicable to the Substitute Parcel. The election by the Developer to acquire or lease a Substitute Parcel in lieu of the Parcel originally on the Takedown Schedule shall have the effect of automatically amending the Takedown Schedule without any further action, notice or approval by any party hereto (or any third party) to exchange the positions on the schedule of each of the two Parcels. 36 I I I I I I I I I I I , I I I I I I I I 7.04 Title. (a) (1) No later. than ten (10) days prior to each parcel takedown closing date, the Agency shall, at the Agency's expense, deliver to the Developer an ALTA Form B-1970 (rev. 10/17/70 and 10/17/84) title insurance commitment issued by Chicago Title Insurance Company, or other nationally-recognized title insurance company mutually acceptable to the parties (the "Title Company"), with respect to the Parcel to be conveyed or leased as provided herein (the "Title Insurance Commitment"). The issuance of the Title Insurance Commitment shall be conclusive evidence of and shall constitute compliance with the Agency's obligation hereunder to deliver insurable title to the Project Site to the Developer as of the date of the delivery of the Title Insurance Commitment to the Developer, subject to the review and acceptance by the Developer as provided in subparagraph (b)(l). A title insurance policy shall, for each parcel, be issued at or promptly following the Closing Date. (2) No later than ten (10) days prior to each parcel takedown closing date, the Agency shall deliver to the Developer a boundary survey of the Parcel certified by a licensed surveyor to the Developer (and its attorney), the Agency (and its attorney), and the Title Company, which survey shall indicate the metes and bounds thereof, the location of any easements of record, rights-of-way, watercourses, drains, sewers and roads affecting development of that Parcel and the location of all underground utilities shown on records of the City (the "Survey"). (3)(i) The Agency had, at its expense, an environmental risk assessment of the Project Site done by a reputable engineering or other firm acceptable to the Developer and provided a copy of the report from such assessment to the Developer no later than ten (10) months after the Original Effective Date. The report was certified to the Agency and the Developer and may be relied upon by each. The Developer reviewed said report and within fifteen (15) days after receipt of the report notified the Agency it accepts the Project Site subject to any conditions set forth in the report. (ii) As the Developer accepted the environmental assessment report described in paragraph (i), the Agency has no further obligation, responsibility or duty to undertake any future environmental risk assessment for the Project Site or any Parcel and the Developer may not hereafter request, demand or require the Agency to undertake an additional environmental risk assessment, and the Developer accepted and acknowledged all conditions disclosed in said report, and may not hereafter refuse or fail to purchase or lease any Parcel due to environmental conditions of such Parcel or any other part of the Project Site (except as provided in subparagraph (iii) reflected in the environmental risk assessment report referred to above). 37 I I I I I I I I I I I I I I I I I I I (b) ( 1) On or before five (5) days after the Developer's receipt of the Title Insurance Commitment and the Survey, respectively, the Developer shall have completed its review thereof and notified the Agency of any matters set forth in the Title Insurance Commitment or the Survey which are unacceptable to the Developer because such matter(s) will adversely affect development of the Parcel or any part thereof. Any matter set forth in the Title Insurance Commitment or the Survey to which the Developer does not timely object, shall be deemed accepted by the Developer and shall be referred to collectively herein as the "Permitted Exceptions." (2) The Agency shall (and, if necessary, the Agency will cause the City to) exercise its reasonable efforts to eliminate those conditions and matters in the Title Insurance Commitment and the Survey which are not Permitted Exceptions (or which cannot be insured over) in such reasonable manner and as promptly as is reasonably possible. In the event that any matter is insured over then the Agency shall cause the title insurance company to reinsure over the matter at such additional amounts based upon value of the property which obligation shall continue with subsequent loans for development secured by a mortgage. If the Agency determines it will be unable to convey insurable title to the Project Site and each Parcel in accordance with the terms of this Agreement, free and clear of all defects in title and survey not waived by the Developer, the Agency shall promptly notify the Developer that it Yiill be unable to convey insurable title for a Parcel to be acquired by the Developer or have insurable title for a Parcel to be leased to the Developer. (3) Promptly following receipt of the notice from the Agency described in paragraph (2) above, the Developer shall notify the Agency that with respect to the affected Parcel it has elected to either: (i) acquire title to the Parcel on the Closing Date or lease the Parcel on the Lease Commencement Date, subject to such exceptions as the Agency (or the City, if necessary), shall be unable to eliminate, without any reduction in the Purchase Price or the lease payments; or (ii) terminate this Agreement as to that Parcel as provided in Section 16.06 hereof. The Developer may not terminate this Agreement as to a particular Parcel if the condi tions or matters described in the Agency's notices under paragraphs (1) or (2) do not adversely affect the development and use of that part of the Project contemplated by this Agreement for that Parcel or can be insured over as provided in paragraph (2). 7.05 Sale of Parcels to Developer. (a) Conveyance of any Parcel by the Agency to the Developer shall be by the Fee Simple Deed in the form attached hereto as Exhibit "F", and in addition to the delivery thereof and of the title insurance policy required by Section 7.04, the Agency shall 38 I I I I I I I I I I I I I I I I I 'I I prepare, execute and deliver to the Developer on the Closing Date an affidavit in the form attached hereto as Exhibit "G". (b) Provided the Agency is, or on the Closing Date will be, able and then willing to convey title to the Parcel to the Developer, in the event of a failure or refusal by the Developer to acquire the Parcel in accordance with this Article 7, the Agency may declare the Developer to be in default of this Agreement as to that Parcel only as provided in Section 16.01 and may exercise any remedies available under subsection l6.0l(b). (c) Taxes and assessments shall be prorated as of the Closing Date. (d) If required, the Agency shall pay for the documentary stamps on each Fee Simple Deed and the Developer shall pay for the cost of recording each Fee Simple Deed. All costs associated with any mortgage shall be paid by the Developer. (e) The Agency and the Developer represent and warrant to each other that neither they nor their affiliates have dealt with any broker, finder or the like who may be entitled to a real estate commission in connection with the conveyance of any Parcel by the Agency to the Developer. The Agency and Developer each agree to indemnify, defend and hold the other harmless from and against any and all loss, expense (including attorneys' fees), damage and liability resulting from the claims of any broker or finder (or anyone claiming to be a broker or finder), or resulting from any services claimed to have been rendered to the indemnifying party. This provision shall survive the Closing Date or the Termination Date. (f) The Agency covenants and agrees with the Developer that it will not undertake any action or fail to take any action subsequent to the issuance of the Title Insurance Commitment which would encumber or place a condition upon title to the Parcel which would not be a Permitted Exception, recommend rezoning the Parcel to a classification or category which would prevent or adversely affect development of the Project on the Parcel, or any other action or non-action which would prevent or adversely affect development of that part of the Project on the Parcel. 7.06 Lease of Parcels to Developer. (a) Each lease of any Parcel by the Agency to the Developer shall be substantially in the form of the 99 Year Lease form attached hereto as Exhibit "E." (b) (1) The lease payments by the Developer shall, unless otherwise provided in this Agreement, be Five and One-Half Percent (5.5%) of the appraised value of the Parcel (determined as provided in subsection 7.09), plus ten percent (10%) of the annual cash flow 39 derived from the use of that Parcel plus ten percent (10%) of the proceeds from any sale or refinancing of the Developer's interest in the Parcel or the part of the Project located thereon. (2) For purposes of this subsection (b), "cash flow" means net operating income less debt service and a return on investor equity of not more than Ten and One-Half percent (10.5%) per year. In determining "net operating income," any and all fees, charges, and payments by the Developer shall be reasonable and in accordance with commonly accepted industry practice and custom and shall be good faith, arms-length transactions not involving any arrangements, conditions, requirements or understandings concerning distribution of such fees, charges and payments to the Developer or affiliates thereof, provided, however, nothing herein is intended to preclude the Developer from managing any part of the project and being pa~d a reasonable and customary fee for doing so, all in the ordinary course of business. (3) For purposes of determining annual "cash flow," the Developer shall notify the Agency within sixty (60) days after the end of each fiscal year of the amount of "annual cash flow" and how it was determined and make payment of the amount due the Agency based on the "annual cash flow." If the Agency does not accept the Developer's determination of "annual cash flow," it may cause an audit to be made of the operations on the Parcel, which audit shall be made in accordance with generally accepted accounting principles by a certi f ied public accountant. I f such audit reveals that "annual cash flow" is greater than that previously determined by the Developer, then the Developer shall promptly pay to the Agency double the difference between the amount initially reported by the Developer and the amount determined by the Audit, and, if the discrepancy is greater than five percent (5%), the Developer shall pay directly or reimburse the Agency for the cost of such audit. If the audit does not reveal a discrepancy of at least five percent (5%), then the Agency shall bear all costs of the Audit. (4) For purposes of paragraph (1), "proceeds from any sale or refinancing" means gross sales price less debt less equity less reasonable costs and expenses of sale. 7.07 Developer's Riqht of Access to the Proiect Site. (a)(l) Prior to the Closing Date or Lease Commencement Date, the Agency shall given written notice to the Developer of the acquisition by the Agency of title to or possession of the Project Site, or any part thereof. As to each Parcel, effective upon such acquisition of title and possession, the Agency hereby grants to the Developer, subject to the rights of tenants in possession and compliance with the insurance provisions of subsection (c), the right to enter the same, together with men and materials, for the purposes described in subsection (b). 40 I I I I I I I I I I I I I I I I I I I (2) The Agency shall seek to have the City allow the Developer access to any Parcel owned by the City on the same basis as access provided under this Section 7.07. (b) The Developer may enter upon a Parcel when authorized as provided in this Section 7.07 only for the following purposes: ( I) To make physical inspection of the Parcel, including subsurface tests, soil test borings, water surveys, topographical surveys, sewage disposal surveys and drainage determinations; (2) To make an accurate survey of the boundaries of the Parcel, or any part or parts thereof, showing the exact location of any encroachments, easements, rights-of-way, covenants or restrictions burdening or appurtenant thereto, any improvements thereon, and any streets, alleys, thoroughfares, ways and highways bordering the Parcel; (3) To make any other inspections, tests, surveys and appraisals deemed necessary by the Developer; (4) To conduct and to carry out any and all engineering studies and operations that it may desire, at the sole cost and expense of the Developer; and (5) To show the Parcel, or any part or parts thereof to any prospective, tenants or Project Lenders. (c) In addition to the provisions of Section 12.01, the Developer agrees to indemnify, defend and save the Agency harmless from any and all losses, costs, damages, expenses and reasonable attorneys' fees which the Agency may suffer or incur from damages to person or property as a result of the entering upon the Project Si te or any Parcel by the Developer or any of its agents, employees, invitees or representatives. The Developer shall obtain and maintain liability insurance protecting the Developer and the Agency against liability for personal injury and property damage resulting from or in connection with such entry to the extent of one million dollars ($1,000,000). 7.08 Siqns. Subject to the written approval of the Agency, which approval shall not be unreasonably withheld or delayed, and compliance with any applicable law, ordinance, or regulation (including any insurance indemnification or easement requirement), as of the Effective Date and thereafter, the Developer may place one or more signs announcing the Project and containing information about the Developer, the Project Lender and the Project upon the part of the Project Site then owned or controlled by the Agency, and, subject to the approval by the City, those portions of the Project Site owned or controlled by the City. The Agency shall seek to have the Interlocal Agreement provide that the Developer may place a permanent sign pertaining to the Project on Parcel "I." 41 I I I I I I I I I I I I I I I I I I I 7.09 Determininq Values of Parcels. (a) The procedure set forth in this Section 7.09 shall be followed in determining the fair market value, appraised value or Purchase Price of any Parcel which is required to be determined for purposes of this Agreement. Upon receipt of a notice from the Developer (which shall be no later than one hundred fifty (150) days before the contemplated Closing Date or Lease Commencement Date and may be at any earlier time for any parcel) that the procedure for determining a Parcel's value should be invoked, the Agency shall promptly select and retain at its expense an M.A.I. appraiser and shall notify the Developer of the appraiser selected. (Such appraiser being hereinafter referred to as the "First Appraiser") . The First Appraiser shall wi thin sixty (60) days after selection by the Agency prepare an appraisal report for the Parcel setting forth the value of the Parcel as of the date of the report taking into account any improvements, either public or private, in the vicinity, and considering the .obligations and benefits of the Developer pertaining to that Parcel as provided in this Agreement. (b) Upon receipt of the report from the First Appraiser, the Agency shall promptly deliver a copy of the report to the Developer, who shall within thirty (30) days after receipt thereof notify the Agency that it accepts or rejects the value for the Parcel set forth in the report. Failure of the Developer to respond within said thirty (30) days shall constitute an acceptance of the value in the report. If accepted, the value in the report shall be used to establish the Purchase Price or the amount of lease payment, as may be the case depending on the Parcel and the election of the Developer to purchase or lease the Parcel to the extent provided in this Agreement. (c) If the Developer gives timely notice of his rejection of the value set forth in the First Appraiser's report, then the Developer shall promptly select and retain at his expense an M.A.I. appraiser (hereinafter referred to as the "Second Appraiser") who shall prepare within sixty (60) days an appraisal report setting forth the value of the Parcel as of the date of that report. Upon receipt of said report, the Developer shall promptly deliver a copy to the Agency. (d) If the two appraisal reports described in paragraphs (a) and (c) do not agree as to the value of the Parcel, and the Agency and Developer are unable to agree to a value of the Parcel within thirty (30) days after the Agency's receipt of the Second Appraiser's report, then upon either party giving notice to the other, the First Appraiser and the Second Appraiser shall promptly select a third M.A.I. appraiser (hereinafter referred to as the "Review Appraiser") who, within fifteen (15) days after being selected, shall review the two reports prepared by the First Appraiser and the Second Appraiser and shall then notify the 42 I I I I I I I I I I I I I I I I I I I parties of his determination of the value of the Parcel based upon those reports and not upon an independent appraisal of the Parcel by the Review Appraiser. The determination of Parcel's value by the Review Appraiser shall be final and conclusive and shall not be subject to challenge, review or reconsideration and shall not be challenged or disputed by either party to this Agreement by judicial or administrative proceedings, including arbitration under Article 18. The costs and fees of the review of the Review Appraiser shall be shared equally and be paid by the Agency and the Developer. (e) At any time during the process described in this Section 7.09, the Developer may notify the Agency of its election to not proceed at that time with the acquisition or lease of the affected Parcel. In such an event, the appraiser then preparing an appraisal report shall be promptly notified by the party retaining that appraiser to cease all work on the affected Parcel and the Developer shall pay any fees or costs incurred by that appraiser for the affected Parcel up to the notice to cease work. Provided the time set forth in the Takedown Schedule for the affected Parcel has not passed, the Developer may give the Agency its Notice of Intention to Acquire [Lease] a Substitute Parcel by the date in the Takedown Schedule for the initially affected Parcel. If the time set forth in the Takedown Schedule for the affected Parcel has passed after the Developer has invoked the notice and appraisal termination process in this subsection (e), then the Developer shall lose, forfeit and waive any and all rights it may have to acquire or lease the affected Parcel the same as if the Developer had not invoked the appraisal process under this Section 7.09 initially. (f) The value determined by this process shall bind the parties for six (6) months, provided a Notice of Intention to Purchase or Lease is properly and timely given within said six (6)- month period. The value so established may be extended for an additional six (6) months on the request of either party. If the other party objects to the extension, the objecting party shall pay for an updated appraisal. ARTICLE 8. CONSTRUCTION OF THE PROJECT. 8.01 Site Clearance. (a) The Agency shall be responsible for clearance of the Project Site such that each Parcel is in a condition ready for development to commence as of the Closing Date or Lease Commencement Date for that Parcel. "Ready for development" means clearing and rough grading of everything man-made above ground except main electrical lines along Nesbit Street. Such clearance may be done in stages pursuant to a schedule provided by the Developer to the Agency. 43 I I 'I I I I I I I I I ,I I I I I 'I I I (b) The Agency may clear any part of the Project Site at any time, provided, however, if the Developer gives written notice prior to demolition of any structure or other improvement, that it does not want it to be demolished, then the Agency shall not demolish and the demolition of that structure or other improvement shall then be the responsibility of the Developer at its cost. (c) As required by Chapter 88-285, Laws of Florida, the following notice is hereby given to the Developer as the prospective purchaser of some of the Parcels which may have buildings located on them, and the Developer acknowledges receipt of such notice: "Radon Gas": Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quanti ties, may present health risk 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 informa- tion regarding radon and radon testing may be obtained from your county public health unit." 8.02 Construction of the Proiect. (a) (1) The Developer of each part of the proj ect shall construct that part of the Project on the Parcel designated for that part of the Project substantially in accordance with the Plans and Specifications therefor. Subject to Unavoidable Delay and the conditions precedent set forth in Section 16.03 hereof, the Developer shall commence construction of that part of the Project to be on the particular Parcel on the Commencement Date for that part of the Project, which shall be no later than twelve (12) months following the Closing Date or Lease Commencement Date, as the case may be, provided, however, the Commencement Date may be delayed for up to twelve ( 12) months upon a request from the Developer to the Agency showing good cause for the extension and the Agency approving it. The Construction Commencement Date for Parcel "D-l" shall be 12 months from the Closing Date or 12 months from the commencement of construction on the Justice Center Project, whichever is later. (2) For purposes of this Section 8.02, "commence construction" of that part 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 diligently prosecuted toward and with the objective of completion of that part of the Project. (b) ( 1) After the Commencement Date, the Developer shall continue, pursue and prosecute the construction of that part of the Project on a Parcel with due diligence to completion by the 44 I I I I I I I I I I I I I !I il II I I I Completion Date and shall not at any time actually or effectively have abandoned (or its Contractor having actually or effectively abandoned) the Project Site. For purposes of this subsection (b), "abandoned" means to have ceased any construction work which effectively advances the construction of that part of the Project on the Parcel toward completion, including removing all or substantially all the construction work force from the Project Site. (2) All construction work on each part of the Project shall be done substantially in accordance with the Plans and Specifications approved therefor pursuant to Article 4 hereof, and shall be of a quality generally recognized as standard for projects of a type and character similar to that part of the Project. (3) All obligations of the Developer (including deadlines in the Project Schedule) with respect to commencement, continuation and completion of construction of each part 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 of the Project, or any part the~eof, is not complete by reason of Unavoidable Delay. (c) For purposes of this Section 8.02, "completion," "complete," "substantially complete" or "substantial completion" means, with respect to construction of part of the Project, the later of a certificate of occupancy for the shell of any structure(s) (not including any tenant improvements) for that part of the Project has been issued by the City or other appropriate governmental authority having jurisdiction over the Project Site or that portion of the Project has been deemed completed by the Construction Lender under the Construction Financing therefor. (d) (1) For each part of the Project, commencing on the fifteenth (15th) day of the calendar month following the calendar month in which the Commencement Date occurs and continuing until the Completion Date, the Developer of that part of the Project shall make monthly reports to the Project Coordinator in such detail and in such form as may reasonably be requested by the Project Coordinator as to the actual progress of the construction of that part of the Project. (2) If the Agency or the Project Coordinator believes adequate progress in the construction of any part of the Project is not being made, the Agency or the Project Coordinator shall give notice to the Developer of that part of the Project, with a copy thereof provided to the Agency or the Project Coordinator not giving the notice, that adequate progress is apparently not being made in the construction of that part of the Project and to respond within ten (10) days thereafter as to why adequate progress is or is not being made toward completion of that part of the Project. 45 I I I I I I I I I I I Ii I I I I I I I (e)(1) Each contract between the Developer and any Contractor for the part of the Project being developed by that Developer shall provide, among other things, that: (i) notice shall be given to the- Agency and the Project Coordinator of any material defaults thereunder by the Developer or the Contractor; (ii) in the event of a material breach by the Developer of such contract, the Agency shall have the right, but not the obligation, to cure any defaults by the Developer under such contract without penalty to the Agency or stoppage of the work; and (iii) upon the Developer not exercising any right to contest or cure an alleged material default or upon any such contest being exhausted with a finding of default having been made or sustained or such default having not been cured in a timely manner, then such contract shall be deemed assigned to and may be relied upon by the Agency. (2) If the Agency elects to cure a material default by the Developer under a contract between that Developer and a Contractor, upon receipt of a notice to that effect from the Agency, the Developer shall immediately deliver to the Agency all plans, specifications, drawings, contracts and addenda thereto pertaining to the construction of that part of the Project which are in its possession or control (and shall instruct the Project Professionals and any other persons in possession or control of such plans, speci fications, drawings and contracts to deliver them to the Agency) . (3) The right of the Agency to cure any default by the Developer as provided in paragraph (1) above shall be subordinate to the right of the Project Lender or Bond Company to cure such default. 8.03 Payment of Contractors and Suppliers. The Developer of each part of the Project shall promptly pay, or cause to be paid, all moneys due and legally owing to all persons doing any vlork or furnishing any materials, fuel, machinery or supplies to the Developer or any Contractors in connection with construction of that part of the Project for which that Developer is responsible. There shall not be a breach of this Section 8.03 unless and until a lien is filed against the Parcel or that part of the Project being developed or constructed thereon and the Developer fails to comply with the requirements of Section 8.04 hereof. 8.04 Mechanic's and Materialmen's Liens. The payment by the Developer of the amount required to satisfy any liens against the Parcel or the part of the Project which that Developer is responsible for developing under this Agreement shall be subject to the Right to Contest as provided in Section 17.01. If, however, because of any act or omission of the Developer or any Contractor o~ subcontractor, any mechanics' or materialmen's lien or other lien for labor, material, fuel, machinery or supplies shall be filed against the Project, the Project Site, or any building, structure or improvement thereon or lands thereunder, the Developer 46 I I" I- I I I I I I I I I I . ii, , , I I I I I I shall promptly cause the same to be canceled and discharged of record, bonded off or insured against by the Title Company. 8.05 Maintenance and Repairs. During the construction of each part of the Project, the Developer of that part of the Project shall, at its own expense, keep that part of the Project developed by Developer and all lands owned by Developer within the Project Site in good and clean order and condition and the Developer shall promptly make all necessary or appropriate repairs, replacements and renewals thereof, whether interior or exterior, structural or non-structural, ordinary or extraordinary, foreseen or unforeseen. All repairs, replacements and renewals shall be equal in quality and class to the original work. When making such repairs, replacements or renewals, the Developer shall comply with all laws, ordinances, codes and regulations then applicable to that part of the Project or the Parcel on which it is being developed. The Developer shall have the right, after written notice to the Agency, to contest by appropriate legal proceedings conducted in good faith, the validity or applicability of any such'law, ordinance, code or regulation, and to delay compliance therewith pending the prosecution of such proceeding, provided that such contest shall be in accordance with the Right to Contest provisions of Section 17.01. 8.06 Proiect Alterations or Improvements. During the construction of the part of the Project for which it is responsible, the Developer may, from time to time, make alterations and improvements, structural or otherwise, to that part of the Project as the Developer deems desirable and consistent with the Plans and Specifications for the uses 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 Plans and Specifications, the Developer shall notify the Agency of such material change and may submit a change, amendment or revision to the Plans and Specifications to the Agency for review as provided in Section 4.03 hereof. Nothing in this Section 8.06 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. 8.07 Construction Completion Certificate. (a)(l) Upon the substantial completion of the construction of each part of the Project in accordance with the provisions of this Article 8, the Developer shall prepare and execute the Construction 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 Plans and Specifications and this Agreement. Upon making such a determination the Agency shall execute the certificate and return 47 I I' I I I I I I I I I I I I I I ,I I I it to the Developer. The date of the Construction Completion Certificate shall be the date when all parties shall have executed said certificate. t,t (2) The Construction 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 described in the certificate; provided, however, that nothing in this Section 8.07 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 that part of the Project. (b) (1) I f the Agency shall refuse or fail to execute the Construction Completion Certificate after receipt of a request by the Developer to do so, then the Agency shall, Hithin 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 Construction 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 Construction Completion Certificate and that request shall be considered and acted upon in accordance Hith the procedures in this paragraph (1) for the original request. (2) If the Agency refuses to execute the certificate and the Developer does not agree vli th the obj ections set forth in the Agency's statement, then the Developer may invoke the arbitration procedures set forth in Article 18 hereof for the purpose of determining if the prerequisites for execution by all parties of the Construction Completion Certificate have been met, and if not, what actions must be taken to satisfy such prerequisites. (c) The Construction Completion Certificate shall be in a form sufficient to be recorded in the public records of Charlotte 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 Charlotte County, Florida, and pay the cost of such recording. 8.08 Aqency Not in Pri vi ty with Contractors. The Agency shall not be deemed to be in pri vi ty of contract with any Contractor or provider of services with respect to the construction of any part of the Project not constituting all or any part of the Public Improvements Project. . - -. 48 I I- I I I I I I I I I I I I I I I I I ARTICLE 9. PROJECT COORDINATION. 9.01 Proiect Coordinator. (a) It is the intent and desire of the parties hereto that the construction of each part of the Project be coordinated with other parts of the Project so as to minimize conflicts, improve efficiency and avoid delays in completion of the Project and each part thereof. To further the intent of the parties set forth herein and to provide the coordination necessary for the successful and timely completion of the construction of the Project, the parties agree and acknowledge that there is a need for a project construction coordinator who shall be responsible for coordinating construction of the various parts of the Project. (b) The Agency and Waltemath agree Waltemath shall be the initial Project Coordinator. The Agency may replace the Project Coordinator or the Project Coordinator may resign upon at least ten (10) days notice of such change or resignation being provided to the Project Coordinator or the Agency as the case may be. 9.02 Proiect Construction Coordination Services. To provide the coordination of construction of the Project as contemplated by Section 9.01, the Project Coordinator shall provide the following services: (a) Schedule and conduct pre-construction, construction and progress meetings concerning procedures, progress, problems and scheduling. (b) Update the construction schedule (and, if necessary, make recommendations for changes to the Project Schedule) reflecting the work and anticipated schedule of the Contractors on the Project Site. (c) Make recommendations to the Developer and Contractors as necessary to provide that the construction of the parts of the Project (including the Public Improvement Project) are coordinated, such that the likelihood of on-site disputes has been minimized and proper coordination has been provided for phased or concurrent construction. (e) Monitor and record the progress of the construction of each part of the Project and have regular, periodic meetings with the Authorized Representative of the Agency concerning such progress. (f) Coordinate the construction work on the Project Site. 49 I I I I I I I I I I I I I. I I I --- --.--- --- I I.. I ARTICLE 10. THE PUBLIC IMPROVEMENTS PROJECT. 10.01 Construction of the Public Improvements Proiect. (a) (1) The Developer has designed and constructed or caused to be constructed on Parcels owned by the Agency all of the Public Improvements Project for which Developer was responsible. (b) The Agency and the Developer shall cooperate in causing, to the extent of their responsibilities hereunder, the completion of the construction of the Park, the Public Pedestrian Walkway and Bikepath, the Nesbit Road Improvements (including utilities and landscaping from Marion Avenue to the Park and East Retta Esplanade) in accordance with the Revised Site Plan. 10.02 Nesbit Street (a) The Agency is responsible for completing the remaining Nesbit Street and Retta Esplanade improvements in'accordance with the Revised Site Plan. Engineering design shall commence immediately upon the signing of this Second Amended Restated Agreement. Construction shall commence upon the first takedown notice. Construction shall be completed prior to the completion of construction on any Parcel. (b) The Agency represents to Developer that to the best of its knowledge normal and customary public utilities are in place and available for use along Nesbit Street at the boundary of the Project Site and the Agency will not take any action, or fail to act, which will cause such utilities to not continue to be available when needed for the Project. (c) The Agency covenants and agrees to construct, install or equip, or cause the City to construct, install or equip, sewer and water facilities from Marion Avenue to the end of Nesbit Street which will be sufficient to serve the various components of the Project no later than when Nesbit Street is constructed. Agency shall provide an easement to Developer on and under the Park in order to allow a loop system for water service if such a design is appropriate. (d) Utilities extended as a result thereof will be of sufficient size and capacity to serve anticipated future development of the Project Site and will be paid for by Developer on the same basis as other utility customers. Nothing herein shall be deemed to prejudice or recognize impact fee credits claimed by Developer. (e) Rights-of-way easements from Nesbit Street to all parcels f6r utilities.will be granted. 50 I. I I I I I I I I I I I I I I I I I I 10.03 Additional Public Improvements. (a) The Developer agrees to allow the Agency to extend the. Public Pedestrian Walkway and Bikepath to a mutually agreed upon location along the river and adjacent to Parcel "A." The Agency shall construct the extension of the Public Pedestrian Walkway and Bikepath in a manner consistent with the original portion thereof and of like quality. The Agency shall be responsible for all costs associated with the costs of the design, construction, landscaping and fencing of the extension. If extended, the Public Pedestrian Walkway and Bikepath shall be located as depicted on the Revised Site Plan, shall not encroach on any parcel developed for residential purposes, and shall be completed by the time a Certificate of Occupancy is issued for the first building to be constructed on Parcel "A." The currently-existing v7alkway and Bikepath impacting on the Revised Parcel A shall be removed at Developer's expense, except to the extent that the Agency notifies Developer in writing that it wishes to remove any reusable materials or improvements which are part of, or" are associated with, said v7alkway and Bikepathi replacement Walkway and Bikepath, if any, shall be at Agency's expense. (b) The Developer and Agency agree that the Agency shall be responsible for rededicating previously-vacated portions of Nesbi! Street and Retta Esplanade and for repaving Retta Esplanade StreetW and Agency will be responsible for all costs associated with such repaving. The repaving shall be started upon Developer's notice to take down the first parcel and shall be completed prior to completion of the remaining improvements of such parcel. The construction of improvements to Nesbit Street shall be done by the Agency. 10.04 Maintenance of Public Improvements. (a) The Agency covenants and agrees to pay for the maintenance and repair of the Public Pedestrian Walkway and Bikepath and the Park and to be reimbursed for such cost by the Developer in accordance with the schedule set forth in Exhibit "N." The Agency shall pay all costs of maintenance and repair on those portions of the Pedestrian Walkway and Bikepath or the Park which do not have, an adjacent or abutting Parcel which has been acquired or leased by the Developer. As the Developer acquires or leases Parcels "A," "B" and "D," the Developer shall be responsible for paying the pro rata share of the cost of maintenance, repair, electricity, and insurance based upon the number of linear feet of the Public Pedestrian vlalkway and Bikepath abutting any Parcel owned or leased by the Developer. (b) Upon the acquisition of Parcel "A," the Developer shall be- responsible for a portion of the total maintenance, repair, electricity and insurance costs for the Park and Nesbit Street as provided in Exhibit "N." The Developer shall be responsible 51 --:-- I I I I I I I I I I I I I I I I I I I initially for fifty percent (SO%) of its designated maintenance share as provided in Exhibit "Nil on completion of the first structure (20 units) and its full share for Parcel "A" upon- completion of its second structure (20 units), or $lS per condominium unit per month, whichever is less. The Agency shall be responsible for costs attributable to Parcel "A" which are in excess of $15 per unit, per month. (c) The cost of maintenance is based upon a set of maintenance specifications agreed to by the parties, which are part of the Public Improvement Project Plans and Specifications. (e ) Notwithstanding the other provisions of this Section 10.04, for maintenance payments for Parcels "B" and "D" and for any building or portion of a building on either of such parcels, the Developer and any subsequent owners and lessees shall be responsible for a monthly maintenance payment in the amount of $O.SO per year per square foot of net rentable area, commencing upon the issuance of a Certificate of Occupancy fer such building or portion thereof. Such payments shall be made quarterly, in advance, on January 1, April 1, June 1, and October 1 of each year, with a pro-rated, current-year payment due upon issuance of the Certificate of Occupancy. (f) The Developer shall pay any costs to repair any construction-related damage to Nesbit Street, Retta Esplanade or any other Public Improvements or property of the Agency or City caused by the Developer. ARTICLE 11. INSURANCE. 11.01 Insurance Requirements Generally. (a) (1) All insurance required by this Agreement shall be obtained from financially responsible insurance companies either duly authorized under the laws of the State of Florida to do insurance business in the State of Florida (or subject to legal process in the State of Florida) and shall be issued and countersigned by duly authorized representatives of such companies for the State of Florida. (2) The insurance coverages and limits required shall be evidenced by properly executed certificates of insurance. No less than thirty (30) days written notice by registered or certified mail must be given the Developer and the Agency of any cancellation, intent not to renew, or reduction in the policy coverages. (3) The liability insurance coverages required by this Agreement are to be endorsed to be primary to any insurance carried by the Agency (or for the benefit of the Agency) or any self- insurance program thereof. S2 I 1'-'- 1 I I I I I I I I I I I I I I I I (b) (1) All of the required insurance coverages set forth in this Article 11 must be issued as required by law and must be endorsed, where necessary, to comply with the minimum requirements contained herein. (2) Renewal certificates of insurance which conform in every respect with the requirements of this Article 11 are to be provided the Agency prior to expiration of current coverages provided that if the renewal certificates are not available prior to the expiration date of current coverages and renewal coverages have been obtained, the Developer will notify the Agency of the identity of the renewal insurance carriers no later than 5:00 p.m. on the date of expiration of the then current coverage. (3) The party required by this Agreement to obtain any policy of insurance shall cause to be provided to the other party hereto certified true copies of any such insurance policy upon written request of any other party hereto. (c) ( 1) I f at any time should either the Developer or the Agency not maintain the insurance coverages required by this Article II, the Agency with respect to insurance required to be carried by the Developer, and the Developer with respect to insurance required to be carried by the Agency, each at its sole discretion, may purchase such coverage upon reasonable prior written notice to the Developer or the Agency, as the case may be, and shall be reimbursed by the other party Hithin thirty (30) days after demand therefor, together with interest at the annual rate of eighteen percent (18%). (2) The right of any party to purchase such insurance coverage on behalf of the other shall in no way be construed to be a waiver, in whole or in part, of any of the rights of such party under this Agreement or otherwise. None of the parties hereto shall be under any obligation to purchase the insurance coverage required of any other party or be responsible for the coverages purchased or the financial stability of the insurance company issuing said insurance. (d) The Developer may not enter onto the proj ect Site pursuant to Section 7.07 nor may construction of the Project by the Developer commence or continue at or on the Project Site unless and until the insurance coverage required of the Developer by this Article 11 is in effect and evidence of such insurance has been provided to the Agency. (e) (1) The insurance coverages and limits required of the Developer under this Agreement are designed to meet the minimum requirements of the Developer. (2) The coverages and limits required of the Developer by this Agreement are not designed by the Agency as a recommended 53 I I I I I I I I I I" I I I I I I I I I insurance program for the Developer. The coverages and limits required of the Agency by this Agreement are not designed as a recommended insurance program by the Developer for the Agency. (f) (1) The Developer alone shall be" responsible for the sufficiency of its own insurance program. The Agency will in no way be responsible to the Developer or any other party for any inadequacy of the Developer's overall insurance program. (2) The Agency shall be responsible for the sufficiency of its insurance program. The Developer will in no way be responsible to the Agency or any other party for any inadequacy of the Agency's overall insurance program. 11.02 Insurance Durinq Construction of the Proiect. (a) 1'7i"th respect "to each Parcel, beginning on "the Closing Date or Lease Commencement Date, as the case may be, and continuing until the Project Completion Date, except as otherwise expressly set forth herein, the Developer shall provide or cause to be provided, pay for and keep in full force and effect with insurance companies satisfying the requirements of Subsection 11.01(a), the types and amounts of insurance described in Subsection 11.02(b). All liability policies of the Developer shall provide that the City and the Agency named as additional insureds as to the operations of the Developer under this Agreement and shall also provide the "Severability of Interests Provision." (b) The follo\oling insurance coverages are required to be obtained and maintained by the Developer from the Closing Date or Lease Commencement Date until the Completion Date: (1) Horkers' compensation and employer's liability insurance for all employees engaged in work under this Agreement in accordance with the laws of the State of Florida. The amount of the employer's liability insurance shall not be less than: Employer's Liability $100,000 Limit Each Accident $500,000 Limit Disease Aggregate $100,000 Limit Disease Each Employee If any class of employees engaged in work under this Agreement is not protected under the applicable workers' compensation law, but is pr"otected" under some other statutory form of employee protection, the Developer shall be required to provide similar protection for all such employees as required by applicable law. 54 I- I I. I I I. I I I. I I I I I I I I I I (2) Comprehensive general liability insurance with a limit of not less than that necessary to comply with the umbrella or excess liability policy required in Paragraph ll.02(b)(4) as to primary. liability coverages and limits. Coverage shall include personal injury, contractual for this agreement; independent contractors; broad form property damage including completed operations; and products and completed operations coverages and shall include coverage for "(X) Explosion," "(C) Collapse," and "(U) Underground Property Damage Liability" exposures. "Completed Operations Liability Coverage" shall be maintained by the Developer for a period of two (2) years following the Completion Date in an amount not less than $2,000,000 combined single limit per occurrence and aggregate as provided herein and in the umbrella or excess liability policy as provided in Paragraph ll.02(b) (4). This insurance coverage shall be issued on an "occurrence" basis. (3) Automobile liability insurance with a limit of not less than that necessary to comply with the umbrella or excess liability policy required in Paragraph ll.02(b)(4) as to primary liability coverages and limits. Coverages shall be in accordance with the laws of the State of Florida as to the ownership, maintenance, and use of vehicles, including all owned, non-owned, leased, or hired vehicles. (4) Umbrella liability insurance or excess liabili ty insurance in addition to the required primary comprehensive general liability, automobile liability, and employer's liability coverage with a limit of not less than: Bodily Injury, Personal Injury & Property Damage Liability --$2,000,000 Combined Single Limit per Occurrence & Aggregate This insurance coverage shall be issued on the "occurrence basis." (5) OWner's protective liability insurance or, alternatively, the Developer shall, at its option, cause the Contractor to name the Developer under the Contractor's blanket comprehensive general liability insurance as an additional insured. (6) Builder's risk insurance shall be purchased, kept in full force and effect, and paid for by the Developer or the Contractor during the construction period for the Project on an "all risk" form, subj ect to the policy exclusions, deductibles and other provisions in an amount not less than the replacement cost of the Project with a maximum deductible of $50,000 each occurrence. The builder's risk policy shall waive the subrogation rights of the insurance company against the City and the Agency. (7) Other insurance coverages may be required when unusual operations are necessary to complete the construction of the 55 I I- I I I I I I I- I I I I I I I I I I Project, including, but not limited to, use of aircraft (including helicopters and balloons), pile drivers, cranes, barges, underwater equipment or explosives, and any other high risk circumstances. No aircraft or explosives shall be usedcwithout prior written notice to, and approval by, the Agency. Minimum insurance coverages and limits shall be determined at the time of such advance written notice at the sole discretion of the Agency. Required limits shall not exceed $2,000,000 each occurrence and aggregate. 11.03 Waiver of Subroqation Requirement. The Developer, with respect to construction of the Project, shall cause its insurance carriers to agree to a joint waiver of subrogation with respect to builders risk insurance covering said construction project, which waivers shall include the Contractors and all subordinate contrac- tors. The Developer shall furnish to the Agency a certified true copy of its respective builders risk insurance policy with copies of all endorsements added during the policy term. 11.04 Insurance Exclusive of obligations of the Developer and the Article 11 are exclusive of, and in indemnity obligations of the Developer Agreement. Indemnity. . The insurance Agency specified in this addi tion to, any and all and the Agency under t~is ARTICLE 12. INDEMNIFICATION. 12.01 Indemnification by the Developer. (a) For consideration of $10.00 and other good and valuable consideration herein provided, the receipt of which is hereby acknowledged by the Developer, the Developer agrees to indemnify, defend and hold harmless, the Agency, its respective agents, officers, or employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of any act or omission of the Developer, its agents, employees or contractors arising out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or vThich are alleged to have arisen out of, in connection with, or by reason of, the performance of such services. (b) The Developer's indemnity obligations under subsection (a) shall survive the earlier of the Termination Date or the Expiration Date, but shall apply only to occurrences, acts, or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. 56 I. I I I I I I I I I I I I I I I - ----- --- I I I (c) The Developer's indemnity hereunder is in addition to and not limited by any insurance policy and is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, nor as a waiver of sovereign immunity for any party entitled to assert the defense of sovereign immunity. 12.02 Indemnification by the Aqency. (a) To the e~tent permitted by law, the Agency agrees to indemnify, defend and hold harmless, the Developer, its respective, officers, and employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of, any act or omission of the Agency, its respective agents or employees arising out of, in "connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performanc~ of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection vlith, or by reason of, the performance of such services. (b) The Agency shall indemnify, defend and hold harmless the Developer, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the Agency, as the case may be, of any representations or warranties contained in Section 14.0 I, or covenants contained in Section 14.02. (c) The Agency's indemnity obligations under this Section 12.02 shall survive the earlier of the Termination Date or the Expiration Date, but shall only apply to occurrences, acts or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. The Agency's indemnity hereunder is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, but is in addition to and not limited by any insurance policy provided that said obligation shall not be greater than that permitted and shall be limited by the provisions of Section 768.28, Florida Statutes, or any successor statute thereto. 12.03 Limitation of Indemnification. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations of the Developer (as set forth in Section 12.01) and the Agency (as set forth in Section 12.02), the following shall apply: 57 I I I I I I I I I I I I I I I I I I I (a) the indemnifying party - shall not be responsible for damages that could have been, but were not, mitigated by the indemnified party; (b) the indemnifying party shall not be responsible for that portion of any damages caused by the negligent or willful acts or omissions of the indemnified party; and (c) there shall be no obligation to indemnify hereunder in the event that the indemnified party (1) shall have effected a settlement of any claim without the prior written consent of the indemnifying party, or (2) shall not have subrogated the indemnifying party to the indemnified party's rights against any third party by an assignment to the indemnifying party of any cause or action against such third party. ARTICLE 13. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER. 13.01 Representations and Warranties. The Dev~loper 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 corporation duly organized and validly existing under the laws of the State of Florida, has all requisi te pOHer and authority to carryon its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party, is qualified to do business in the State of Florida, and has consented to service of process upon a designated agent for service of process in the State of Florida. If this agreement is assigned, then Waltemath Family Limited Partnership is a Louisiana Partnership, David Waltemath, General Partner. (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 58 I I I I I I I I I I I I I I I I I I I Incorporation, 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 '~he 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 O~- pr:oceedings before any court 01.- administrative agency against the Developer, or against any controlling shareholder, officer, 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 New Orleans, Louisiana, and the Developer will keep 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 in the City. (h) As of the Closing Date, financial capability to carry responsibilities in connection with as contemplated by this Agreement. the Developer will have the out its obligations and the development of the Project - (i) The Developer has the experience, expertise, and capability -to develop, cause the construction, and complete the Project and, oversee and manage the design, planning, construction, completion and opening for business of the Project, and to acquire 59 I I' I I I I I I I I I I I I I I I I I or lease the Project Site from the Agency as provided in Article 7 hereof. 13.02 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) During each year this Agreement and the obligations of the Developer under this Agreement shall be in effect, the Developer 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 contemplClted by this Agreement -that m:e applicable -Lo, and that ar:e the responsibility of, the Developer. (c) The Developer shall assist and cooperate with the Agency to accomplish the development of the Project by the Developer in accordance with the Plan, the Proposal, this Agreement, and the Plans and Specifications and will not violate any laHs, ordinances, rules, regulations, orders, contracts or agreements that are or will be applicable thereto, including the Plan and the Act. (d) The Developer shall comply with all provisions of the instrument or instruments establishing the terms and conditions of the Project Financing provided by the Project Lender. (e) Subs equent to the Clos ing Date or Lease Commencement 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 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. (f) 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. (g) Subject to Section 22.01, 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 corporation, limited partnership, or other entity or permit one or more other corporations or other entity to consolidate with or merge into it without the prior approval of the Agency, excepting only Waltemath Family Limited Partnership, David Waltemath, General Partner, unless the Developer retains a controlling interest in the 60 I I I I I I I I I I I I I I I I I I I consolidated or merged corporation, and will promptly notify the Agency of any changes to the existence or form of the corporation or any change in the controlling shareholder( s), officers or- directors of the Developer. (h) Other than sales and assignments contemplated by this Agreement, 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. (i) Except for the removal of any structures, plants, items or other things from the Project Site after the Closing Date necessary for construction of the Project to COllU"nenCe and con"tinue, the Developer shall not permit, commit, or suffer any waste or impairment of the Proj ect or the Proj ect Site prior to the Expiration Date. (j) Provided all conditions precedent thereto have been satisfied or waived as provided herein, the Developer shall acquire or lease the Parcels as provided in Article 7 hereof and shall pay the Purchase Price or the rent, as the case may be, when due and payable as provided therein. (k) 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 Project Completion Date. ARTICLE 14. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE AGENCY. 14.01 Representations and Harranties. The Agency represents and vlarrants 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 the Redevelopment Act, has all requisite corporate power and authority to carryon 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 61 I I. I I I I I I I I I I I I I I I I I 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, resul ts 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 req~ired 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. (e) The Agency and the city now own all of the Project Site. (f) The appropriate officials of the Agency and the City have executed the Interlocal Agreement. 14.02 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. 62 I I:" I I I I I. I I I I I :.... I I I I- I I I (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 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) Except for the demolition of existing structures on the Project Site and the removal of objects from the Project Site as contemplated by' this Agreement, the Agency shall not permit, commit, or suffer any waste or impairment of each Parcel before the Closing Date or the Lease Commencement Date for that Parcel, nor shall the Agency request or recommend any rezoning of the Project Site, or any part thereof, which will prevent or adversely affect the development of the Project. (e) 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 15. CONDITIONS PRECEDENT. 15.01 Developer Acquirinq or Leasinq Proiect Site. Subject to termination of this Agreement pursuant to Section 16.06 hereof, the obligation of the Developer to acquire or lease each particular Parcel on the Closing Date as provided in Article 7 hereof is subject to the fulfillment to the satisfaction of, or waiver in wri ting by, the Developer of each of the following conditions precedent: (a)(I) The Developer shall have received a title insurance commitment or policy with respect to the Parcel which is in accordance with the requirements of Subsection 7.06 (a) hereof containing no exceptions other than the Permitted Exceptions and a 63 I I'" I I I I I I I I I I I I I I I I- I survey of the Parcel certified to the Developer and to the Construction Lender as required by Paragraph 7.06(a)(I). (2) The Agency shall not take any action, nor allow any action, that would adversely affect the condition of the title to the Project Site, less the County Judicial Center Project'Site;~and the Agency shall deliver marketable title (as provided in Section 7.04 hereof) to the Developer as to each Parcel when the Developer desires to take down such Parcel as provided in this Agreement. If necessary, the Agency will use the power of eminent domain to clear any adverse title conditions that prevent~ the delivery of marketable title (as provided in Section 7.04 hereof). (b) The Developer shall have received evidence satisfactory to the Developer that the Parcel is zoned to permit the use of that part of the Project contemplated thereon, and each' component thereof, as contemplated by the PUD Ordinance and this Agreement, all necessary variances have been granted and a development order for the proj ect shall have been adopted by the City or other governmental entity responsible for issuing such development order, under Section 380.06, Florida Statutes. (c) The Plans and Specifications as are required for issuance of the Building Permit required to commence construction of that part of the Project on the Parcel shall have been approved by the Agency in accordance with Article 4 and by the City in accordance with the PUD Ordinance and applicable ordinances, land use regulations, building codes and other regulations of the City. (d) The Developer shall have received results satisfactory to the Developer in its sole discretion of all tests and inspections with respect to the physical condition of the Parcel indicating the Parcel is satisfactory for the contemplated use. (e) The Agency shall have established and provided for the Public Financing. (f) The Developer shall have obtained commitments, from the Construction Lender as provided in Subsection 6.01(a) hereof. (g) The City shall have vacated the rights-of-way and closed any streets, alleys or other public rights-of-way as may be necessary for the construction and use of the Project according to the Revised Site Plan, PUD Ordinance and the approved Plans and Specifications therefor. (h) All Permits and the Building Permit necessary for construction of that part of the Project on the Parcel to commence as provided in Subsection 4.05(b) hereof shall have been issued or are reasonably expected to be issued when needed. 64 I I" I I I I I I I I I I I I I I I I I (i) If the Developer is to acquire or lease the Parcel, the Agency shall be able to convey to the Developer insurable title to the Parcel in accordance with Article 7 hereof. (j) The Agency and the Developer shall have agreed to the Permitted Exceptions. (k) The Agency shall have delivered to the concurrency compliance certificate and reservation capacity. Developer a of service 15.02 Aqency Conveyinq Proiect Site. Subject to termination of this Agreement pursuant to Section 16.06, the obligation of the Agency to convey any Parcel to the Developer on the Closing Date pursuant to Article 7 hereof is subject to the fulfillment to the satisfaction of, or waiver, in writing, by the Agency of each of the following conditions precedent: (a) The City shall have vacated the rights-oi-way and closed any streets, alleys or other public rights-of-way as may be necessary for the construction and use of the Project according to the PUD Ordinance and the approved Plans and Specifications therefor. (b) All Permits and the Building Permits necessary for construction of that part of the Project on the Parcel to commence shall have been issued or are reasonably expected to be issued when needed. (c) The City and the Agency shall have entered into the Interlocal Agreement and it shall be in full force and effect under Section 163.01, Florida Statutes. (d) The Agency and the Developer shall have agreed to the Permitted Exceptions. 15.03 Construction of Proiect. Subject to termination of this Agreement pursuant to Section 16.06, the obligation of the Developer to commence construction of each part of the Project on the Commencement Date for that part of the Project is subject to the fulfillment to the satisfaction of, or waiver in writing by, the Developer of the following conditions: (a) The conveyance or lease of the Parcel to the Developer pursuant to Article 7 hereof has occurred; and (b) Such of the Plans and Specification that are necessary to commence construction of that part of the Project on the Parcel shall have been approved by the City, and the initial Building Permit for the commencement of construction of that part of the Project and all other Permits necessary for construction to commence have been issued. 65 I I I I I I I I I-- I I I I- I I I I I I 15.04 Responsibilities of the Parties for Conditions Pre- cedent. The parties hereto shall not, individually or collectively, knowingly, intentionally or negligently prevent any condition precedent from occurring; provided, however, nothing in this Section 15.04 is intended or shall be deemed to deny -any party- the right to reasonably exercise its discretion to the extent permitted by law or this Agreement. ARTICLE 16. DEFAULT; TERMINATION. 16.01 Parcel Default by the Developer. (a) On or after the Restated Effective Date _through and including the Project Completion Date, there shall be an "event of default" by the Developer as pertains to a particular Parcel under this Agreement upon the occurrence of anyone or more of the following: (1) Provided all conditions precedent thereto have been satisfied or waived and the Developer has exercised its election to purchase or lease the Parcel (including any Substituted Parcel) and delivered the Notice of Intention to Purchase (or lease) pursuant to Section 7.03, the Developer shall fail or refuse to pay the Purchase Price in accordance with Article 7 hereof or to enter into the lease of that Parcel; or (2) The Developer fails or refuses to give Notice of Intention to Purchase [Lease] the Parcel by the date required by Section 7.03 (as may be extended by the terms hereof), or the Developer fails to timely issue a Notice of Intention to Acquire [Lease] a Substitute Parcel in lieu of the one scheduled to be acquired or leased by the date set forth in the Takedown Schedule; or ( 3) An event of default by the Developer declared by the Project Lender as provided in the documents or instruments evidencing the Project Financing shall have occurred and not been timely remedied as provided therein; or (4) The Developer shall not have commenced construction of the Project by the Commencement Date, provided all necessary Permits have been obtained, including the initial Building Permit, and the applicable conditions precedent set forth in Section 15.03 for commencement of construction of the Project have occurred or been waived; or (5) An event of default by the Developer under any construction contract pertaining to the Project between the Developer and any Contractor shall have occurred and not been remedied by the Developer or waived by the Contractor as provided therein. 66 I 10. I I I I I- I I' In I: I I I I I I I;.' - - I- (b)(l) If an event of default by the Developer described in subsection (a) shall occur, the Agency shall provide written notice thereof to the Developer, and, after expiration of the curative period described in paragraph (2) below and such default has not been cured to the satisfaction of the Agency, shall terminate the Developer's opportunity to acquire or lease the Parcel not timely acquired, leased or constructed upon, and the Agency shall retain any and all payments made by the Developer pursuant to this Agreement. . (2) The Agency may not terminate the Developer's opportunity to acquire or lease the affected Parcel as described in paragraph (1) above if the Developer cures such event of default within sixty (60) days after receipt by the Developer of written notice from the Agency specifying in reasonable detail the event of default by the Developer, 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 the Developer has commenced to cure such default within such sixty (60) day period and diligently prosecutes such cure to completion and the Agency agrees to such longer curative period. The Developer shall, within said sixty (60) 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 Agency and shall succeed in curing such event of default within said period of time; provided, however, if the Developer shall fail to cure such event of default within said sixty (60) day or longer period or ceases to proceed diligently to timely cure such event of defaul t, then the Agency may proceed to enforce any available remedies, including the Developer's opportunity to acquire or lease the affected Parcel and develop part of the Project thereon, without providing any additional notice to the Developer. (3) If an event of default described in this Section 16.01 should occur and the Developer does not cure the default, then the Agency shall terminate the Developer's opportunity to develop the affected Parcel. (c) In the event of a termination of the Developer's right under this Agreement to acquire or lease a Parcel, the Developer covenants and agrees to execute a Parcel Release Certi f icate, evidencing such termination and agreeing that Parcel is released from this Agreement and may be sold, leased or developed by any other person. Such certificate shall be recorded by the Agency in the public records of Charlotte County, Florida. The cost of recording such certificate shall be paid by the Developer. (d) Any attempt, whether or not completed 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. 67 I I: I I I I I I I I I, I I I I I I I I 16.02 Proiect Default by Developer. (a) There shall be an "event of default" by the Developer pertaining to the entire Project upon the occurrence of anyone or more of the following after the Closing Date or Lease Commencement 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 (which does not include an event described in Section l6.01(a)), after receipt of a notice from the Agency pursuant to Paragraph l6.02(b)(l); or (2) The Developer shall make a general assignment for the benefit of i~s 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) Hi thin 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, wi thin 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; or (4) The Developer fails or refuses to acquire or lease any Parcel for a period of four (4) years from the most recent Closing Date or Lease Commencement Date for any other Parcel. (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 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 68 I 1<- I I I I I- I I I I I I I I I I I I (provided, however, if the Developer is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of the Agency being required, but such-approval will be required if the curative period is to be extended beyond six (6) months (after the notice of default has been given by the Agency to the-Developer and such extended curative period may be ended by the Agency electing to do so upon any Project Lender finding the Developer to be in default of any Project Financing and the curative period therefor has expired without such event of default being cured) then, in addition to any remedy available under Section 16.05, 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 Hithout providing any additional notice to the Developer. (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) Subject to the rights of the Project Lender, if the Agency elects under Section 6.06 to cure a default under Subsection l6.02(a) by the Developer and complete the construction of the proj ect, all Plans and Speci fications, working drawings, construction contracts, contract documents, Building Permits, Permits, management agreements, and financial commitments (all only to the extent assignable) with respect to the Project shall, if such default has not been previously cured, on the day following receipt by the Developer of notice from the Agency of its election to cure under Section 6.06, be deemed then assigned to the Agency making said election, without necessity of any other action being taken or not taken by any party hereto. The Developer shall transfer and deliver to the Agency upon making said election, all assignable Plans and Specifications, working drawings, construction contracts, contract documents, financial commitments, management agreements, and all Permits, and, at the direction of the Agency, the defaulting Developer shall vacate the Parcel(s). (d) In the event of a termination of this Agreement pursuant to this Section 16.02, the Developer shall not be entitled to any reimbursement from the Agency_for costs incurred by the Developer 69 I I" I I I I I- I I I I I I I I I I I I which have not already been reimbursed or owing at the time of such termination. (e) In the event of a termination of this Agreement pursuant to this Section 16.02, the amount required to be paid to the Agency by the Developer pursuant to subsection 3.02(b) of this -Agreement- shall, if still unpaid, immediately become due and payable. 16.03 Default by the Aqency. (a) Provided the Developer is not then in default under Section 16.01 or 16.02, 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 16.01 or 16.02 hereof will not constitute an event of default by the Agency under this Subsection 16.03(a). (b) ( 1) I f an event of default by the Agency described in Subsection 16.03(a) shall occur, the Developer shall provide written notice thereof to the Agency, and, after expiration of the curative period described in paragraph (2) 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 Closing Date, any monetary recovery by the Developer in any such action 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 this Agreement and the transactions contemplated hereby, unless any such default by the Agency was willful and committed in bad faith with reckless disregard for the rights of the Developer. (2) The Developer may not terminate this Agreement or institute an action described in paragraph (1) 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 - defaul t 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 six (6) months without any approval or consent of the Developer being required, but such approval will be required if the curative period is to be extended beyond six (6) months 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 70 1- I"." I I. I I I I I I I I I I I I I J- t- 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. (3) Any attempt by the Developer to pursue any of the remedies referred to in paragraphs (1) and (2) 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. (4) 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. 16.04 Obliqations, Riqhts 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 off 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. 16.05 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. 16.06 Termination. (a) The Developer and the Agency acknowledge and agree that as of the Original Effective Date certain matters mutually agreed by the parties hereto to be essential to the successful development 71 I. I~': I I I I I I I I ,I I I I I I I I I 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, including, but-not limited to, the exercise of the condemnation power, failure of a governmental authority to grant an approval required for development of the Project, aDRL development order has not been issued, insurable title to the Project Site has not been obtained, the Submerged Lands Lease has not been entered into, or unreasonable exactions (which are contrary to those contemplated by this Agreement) are imposed as a condition of governmental approval of the Project. 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 capabili ties 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 16, but may, upon the election of any party hereto, be the basis for a termination of this Agreement in accordance with this Section 16.06. (b) In addition to any other rights of termination provided elsewhere in this Agreement, this Agreement may be terminated as provided in subsection (c) by the Agency or the Developer after the occurrence of any of the following events or conditions: (1) the entire Project 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 Project Site is taken by the power of eminent domain so as to render the Project unusable for its intended uses as contemplated by this Agreement; or (2) the appropriate governmental authority (including the City in exercise of its governmental and regulatory authority and responsibility), upon petition by the Developer, denies or fails to: approve the rezoning of the Project Site, grant a variance, issue the necessary order or other action necessary under Section 380.06, Florida Statutes, issue the Permits, issue the Building Permits, or approve any other land use approval necessary to commence construction of the Project on the Project Site, provided the Developer has proceeded diligently, expeditiously and in good faith to obtain such approval, permits or other necessary actions; or (3) the City has issued to the Agency 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 72 I I- I I I I I- I I' I- I; I I-- I I I I I I- reservation and cannot obtain a new or replacement certificate or reservation for the Project; or (4) the City fails to approve, or if approved, fails to maintain in effect the height limits described in Section 3.0l(e) as applied to the Project and the Developer fails or refuses to develop the part of the Project on any Parcel subject to height limits lower than those described in Section 3.01(e). (c) Upon the occurrence of an event described in subsection (b) or in the event that the Developer or the Agency, after diligently and in good faith to the fullest extent its capabil i ties, is unable to cause a condition precedent to its respective obligations to occur or be satisfied, then the Developer or the Agency 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; except that a termination as a result of a failure of the City to approve and keep in effect as applied to the Project the height limits for Parcel "A" and the Developer not developing that part of the Project with lower height limits may, in the election of the Developer exercising the right of termination hereunder be either as to the affected Parcel or the entire Agreement and, in the election of the Agency exercising the right of termination hereunder be only as to the Affected Parcel. (d) In the event of a termination pursuant to this Section 16.06, 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; provided, however, the provisions of Sections 12.01 and 12.02 shall apply and shall survive termination of this Agreement, the provisions of this Subsection 16.06(d) to the contrary notwithstanding. (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. (f) If the Developer unilaterally decides not to proceed with the Project and terminates the Agreement, Developer will pay Fifteen Thousand Dollars ($15,000) to the Agency and the parties will execute the appropriate releases. 73 I I I I I I I I I I- fl: I I I I I- I I~ I 16.07 Termination Certificate. (a) In the event of a termination of this Agreement for any reason 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) and that the Project Site is no longer subject to any restrictions, limitations or en- cumbrances imposed by this Agreement. (b) The certificate described in Subsection (a) shall be prepared in a form sui table for recording and promptly after execution by all of the parties hereto shall be recorded in the public records of Charlotte County, Florida. ARTICLE 17. RIGHT TO CONTEST. 17.01 Riqht to Contest. Subject to the conditions set forth in Section 17.02 below, the Agency or the Developer each may, at its sole discretion and expense, after prior written notice to the other parties hereto, contest by appropriate action or proceeding conducted in good faith and with due diligence, the amount or validity or application, in whole or in part, of any lien, any payment of any taxes, assess- ments, impact fees or other public charges of a similar nature that may from time to time be levied upon or assessed by any appropriate governmental authority against the Developer, the Project (or any part thereof), the Project Site, furniture, fixtures, equipment or other personal property thereon, and the revenues generated from the use or operation of any or all of the above, any other payment specifically identified in this Agreement, or compliance with any law, rule, regulation, or other such legal requirement. 17.02 Conditions. The right to contest any charge, payment or requirement pursuant to Section 17.01 is subject to the following: (a) such proceeding shall suspend the execution or enforcement of such charge, payment or requirement; (b) such proceeding will not create any risk of impairment of the acquisition or preparation of the Project Site, the construction, completion, operation or use of the Project, the Project Site, or any part thereof, in any material respect, and neither the Project or Project Site, nor any part of the Project or 74 I I:... I I I I I- I I I I I I I I I I I I the Project Site, involuntarily sold, Project Site or the Project or any part would be subject to any risk of forfeited or lost or the acquisition construction, equipping, or completion thereof be delayed or prohibited; being of the of the (c) such proceeding will not subj ect any other. party to- criminal liability or risk of material civil liability for failure to comply therewith, or involve risk of any material claim against such party; and (d) the party seeking the benefit of this Section 17.02 shall have furnished to the other parties such security, if any, as may be required in such proceeding or as may be reasonably requested by the others, to protect the Project and the Project Site, and any part thereof, and any interest of such parties hereunder. ARTICLE 18. ARBITRATION 18.01 Aqreement to Arbitrate. Only as specifically provided in this Agreement and only if any judicial or administrative action or proceeding has not been commenced with regard to the same matter and, if so, the party hereto commencing such action has not dismissed it, any disagreement or dispute between the parties may be arbitrated in the manner set forth in this Article 18. All parties hereby agree such arbitration, once commenced, shall be the exclusive procedure for resolving such disagreement or dispute and agree to be bound by the result of any such arbitration proceeding unless all parties mutually agree to terminate such proceeding prior to decision. If any arbitration proceeding under this part adversely affects the performance of any party hereunder, then any time periods provided herein for such performance by that party shall be tolled during the pendency of the arbitration proceeding affecting such performance. 18.02 Appointment of Arbitrators. (a)(1) Unless accelerated arbitration as provided in Section 18.08 hereof is invoked, any party invoking arbitration herewith shall, within five (5) days after giving notice of impasse in the dispute resolution process or upon following the expiration of the time period for such dispute resolution occurrence of the event permitting arbitration to be invoked, give written notice to that effect to the other parties, and shall in such notice appoint a disinterested .person who is on the list of qualified arbitrators maintained by the American Arbitration Association or a disinterested person not on such list to whom an objection is not made by any other party hereto within five (5) days of receipt of the notice of such appointment as the arbitrator or, if more than one (1) arbitrator is to be appointed, as one of the arbitrators. (2) Within ten (10) days after receipt of the notice described in paragraph (1), the other parties shall by written 75 I .. I I I I 1'-- I I It I I' I I I I I I I 1- notice to the original party acknowledge that arbitration has been invoked as permitted by this Agreement, and shall either accept and approve the appointment of such individual set forth in the original notice as a sole arbitrator or shall appoint one (1) disinterested person per party of recognized competence in such field as an arbitrator. . - - (b) ( 1) I f two (2) arbitrators are appointed pursuant to subsection (a) above, the arbitrators thus appointed shall appoint a third disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association, and such three (3) arbitrators shall as promptly as possible determine such matter. (2) If the second arbitrator shall not have been appointed as provided in subsection (a), the first arbitrator shall, after ten (10) days notice to the parties, proceed to determine such matter. (3) I f the two (2) arbitrators appointed." by the parties pursuant to subsection (a) shall be unable to agree within fifteen (15) days after the appointment of the second arbitrator upon the appointment of a third arbitrator, they shall give written notice of such failure to agree to the parties, and, if the parties then fail to agree upon the selection of such third arbitrator within fifteen (15) days thereafter, then within ten (10) days thereafter each of the parties upon written notice to the other parties hereto may request the appointment of a third arbitrator by the office in or for the state of Florida (or if more than one office, the office located closest to the City) of the American Arbitration Association (or any successor organization thereto), or, in its absence, refusal, failure or inability to act, request such appointment of such arbitrator by the United States District Court for the Middle District of Florida (which request shall be filed in the division of that court responsible for the geographic area including the City), or as otherwise provided in Chapter 682, Florida Statutes, known and referred to as the Florida Arbitration Act, as amended. 18.03 General Procedures. In any arbitration proceeding under this part, those parties appointing arbitrators shall each be fully entitled to present evidence and argument to the sole arbitrator or panel of arbitrators. The arbitrator or panel of arbi trators shall only interpret and apply the terms of this Agreement and may not change any such terms, or deprive any party to this Agreement of any right or remedy expressed or implied in this Agreement, or award any damages or other compensation to any party hereto. The arbitration proceedings shall follow the rules and procedures of the American Arbitration Association (or any successor organization thereto) unless specifically modified by this Agreement, or as then agreed to by the parties hereto. 76 I I,', . . I I I I I I I IL, I- I I'" I I I I I I 18.04 Maiority Rule. In any arbitration proceeding under this part, the determination of the majority of the panel of arbitrators, or of the sole arbitrator if only one (1) arbitrator is used, shall be conclusive upon the-parties and judgment upon the same may be entered in any court having jurisdiction ~he~eof._ . Th~ arbitrator or panel of arbitrators shall give written notice to the parties stating his or their determination within thirty (30) days after the conclusion of the hearing or final submission of all evidence or argument. 18.05 Replacement of Arbitrator. In the event of the failure, refusal or inability of any arbitrator to serve as such, promptly upon such determination being made by the affected arbitrator, the affected arbitrator shall give notice to the other two (2) arbitrators (if applicable) and to the parties hereto, and then a new arbitrator shall be promptly appointed as a replacement, which appointment shall be made by the party or the arbitrators who appointed the affected arbitrator in the same manner as provided for in the original appointment of the affected arbitrator in Section 18.02 hereof. 18.06 Decision of Arbitrators. (a) If any decision reached by arbitration as provided in this part requires performance by the Developer, the Developer covenants and agrees to comply with any decision of the arbitrator(s) promptly after the date of receipt by the Developer of such decision, and to continue such performance to completion with due diligence and in good faith. (b) If any such decision requires performance by the Agency, the Agency covenants and agrees to comply promptly with any decision reached by arbitrator(s) promptly after the date of receipt by the Agency of such decision, and to continue such performance to completion with due diligence and in good faith. (c) Nothing in this part, nor in any arbitration decision rendered under this part, shall be construed to require any payment by the Agency to the Developer not otherwise provided for herein. 18.07 Expense of Arbitration. The expenses of any arbitration proceeding pursuant to this part shall be borne equally by the parties to such proceeding, provided, however, for the purpose of this Section 18.07, "expenses" shall include the fees and expenses of the arbitrators and the American Arbitration Association with respect to such proceeding, but shall not include attorneys' fees or expert witness fees, or any costs incurred by attorneys or expert witnesses, unless (and to the extent) agreed to by the parties to such proceeding, which in the absence of such Agreement shall be the responsibility of the party incurring such fees or costs. 77 1- I_~ I I- I I I I I 1-. I I I I I I I I I 18.08 Accelerated Arbitration. (a)(I) If any of the parties to any arbitration proceeding under this part determines the matter for arbitration should be decided on an expedited basis, then after an initial election to invoke arbitration pursuant to Section 18.02 hereof has been made, either party to such proceeding may invoke accelerated arbitration by giving notice thereof to the other parties no later than three (3) days after arbitration has been initially invoked and the other parties do not object within three (3) days thereafter. (2) Accelerated arbitration, for purposes of this Section 18.08, shall be accomplished by either party notifying the American Arbitration Association (or any successor organization thereto) that the parties have agreed to a single arbitrator, qualified to decide the matter for arbitration, to be appointed by the American Arbitration Association (or any successor organization thereto) with the consent of the parties to such proceeding within three (3) days after receipt of the request and to decide such matter within five (5) days after such appointment. (3) If an arbitrator is not so appointed with consent of the parties to the proceeding within three (3) days after the notice referred to in paragraph (2) is received by the American Arbitra- tion Association, the accelerated proceeding under this Section 18.08 shall terminate and the procedures otherwise set forth in this Article 18 shall apply, unless the parties mutually agree to an extension of such time period. (b) The Developer and the Agency hereby agree to use such accelerated procedure only when reasonably necessary, to not contest the appointment of the arbitrator or his or her decision except as may be permitted by law, and that all other provisions of this part, except as are in conflict with this Section 18.08, remain i1) effect and applicable to an accelerated arbitration proceeding. 18.09 Applicable Law. this part, any arbitration governed by the provisions amended, known and referred To the extent not inconsistent with proceeding under this part shall be of Chapter 682, Florida Statutes, as to as the Florida Arbitration Code. 18.10 Arbitration Proceedinqs and Records. Any arbitration hearing under this part shall be considered a meeting subject to Section 286.011, Florida Statutes, and shall be open to any member of the public. Unless otherwise rendered confidential pursuant to or by the operation of any applicable law or order (other than an order by a sole arbitrator or panel of arbitrators acting under this part), the record of such proceedings shall be a public record under Chapter 119, Florida Statutes. 78 I I I I I I a- I I I- I I I I I I I I I ARTICLE 19. UNAVOIDABLE DELAY. 19.01 Unavoidable Delay. (a)(l) Any delay in performance of or inability to perform any obligation under this Agreement (other than an obllgatibn 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 19.01. (2) "Unavoidable Delay" means any of the following events or conditions or any combination thereof: acts of God, acts of the public enemy, riot, insurrection, 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, extr:emely 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). (3) An application by any party hereto (referred to in this paragraph (3) and in paragraph (4) as the "Applicant") for an extension of time pursuant to this 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 seven (7) days following the occurrence of the event or condition causing the Unavoidable Delay or seven (7) days following the Applicant becoming aware (or with the exercise of reasonable diligence should have become aware) of such occurrence. (4) 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. (b)(l) The parties recognize and agree that under certain economic conditions in the nation or in the southwest Florida area certain parts of the Project may not be economically feasible at the time provided in the Takedown Schedule when the Developer must decide whether to proceed with that part of the Project or some other part through acquisition or lease of a Substitute Parcel. In such an event, which is beyond the control of the parties to this 79 I I I I I I I I I rn I I I I I I I I I I Agreement, it is the intent and desire of the parties that the rights, duties and obligations of the Developer to develop various parts of the Project should not be lost, waived or forfeited solely as a result of such severe, adverse economic conditions. In such an event, the parties agree the provisions of this subsection (b) may be invoked by the Developer for an extension of -time in which to proceed with the acquisition or lease of Parcels and the development of the Project. The Agency finds that it is in the best interest of the citizens of the City and in the interest of furthering the redevelopment of the Area pursuant to the Plan that the extension of time provisions of this subsection (b) be available to the Developer under certain limited circumstances beyond the control of the parties to this Agreement, and that allowing such extension of time for development of the Project does not adversely affect the redevelopment of the Area. (2) In the event adverse economic conditions in the southwest Florida area prevent the successful development of any part of the Project at the time set forth in the Takedown Schedule for the acquisition or lease of any Parcel, the Developer may at least one hundred twenty (120) days before the date for that Parcel in the Takedown Schedule submit a request to the Agency for an extension of time in the Takedown Schedule for up to six (6) months per request, up to a maximum of four (4) years. In its request, the Developer shall certify that adverse economic conditions in the southwest Florida area prevent the successful economic development of any part of the Project, that substitution of a Substitute Parcel is not economically feasible, and that an extension of time is needed. The Developer shall provide reasonable detail evidencing the basis for the adverse economic conditions preventing successful development of the Project, or any part thereof. Inability to obtain Project Financing can be evidence of such advers e economic conditions, but may not be the sole basis or evidence of such conditions. (3) The Agency shall promptly consider the request from the Developer and within thirty (30) days of receipt of the request from the Developer shall either approve or reject the request. The Agency may approve an extension of time for up to six (6) months per request, but not to exceed a total of four (4) years. If an extension of time is granted by the Agency, all dates, time periods, deadlines and other times in which actions are to be taken, notices given, or Parcels acquired or leased shall be extended by the time period of the extension approved by the Agency. (4) At the expiration of any six (6)pmonth or other extension period, the Developer may request another extension of time and shall present evide~ce of the adverse economic conditions at that time preventing successful development of any part of the Project, provided that any such extension shall not cause the total 80 I I""' I I I I I I I" I", I" I I:" I I I-- I 1"- 1- extension of time granted pursuant to this subsection (b) to extend beyond four (4) years. ARTICLE 20. RESTRICTIONS ON USE. 20.01 Proiect. Prior to the earlier of the Termination-Date or the Expiration Date, no use of the Project other than as a mixed use project with the uses on each Parcel as described in Section 7.02. shall be permitted unless and until the Developer or the person, if other than the Developer, intending to so use the Project or Project Site, shall file with the Agency a request for a release from the restriction imposed by this Section 20.01. The Governing Body of the Agency shall promptly consider such request and either deny the request, approve the request as filed, or approve the request subject to such terms, conditions and limitations as the Agency may reasonably require. Unless specifically requested and approved, a release of the restriction imposed by this Section 20.01 shall not release the Developer from any obligations or restrictions imposed by this Agreement or any agreement, instrument or document contemplated hereby. ARTICLE 21. FIRE OR OTHER CASUALTY; CONDEMNATION. 21.01 Loss or Damaqe to Proiect. (a) Until the Project Completion Date, and without regard to the extent or availability of any insurance proceeds, the Developer covenants and agrees to diligently commence and complete the reconstruction or repair of any loss or damage caused by fire or other casualty or by eminent domain (provided the City or the Agency is not the condemning authority) to each and every part of the Project on a Parcel which it owns or leases to substantially the same size, floor area, cubic content and general appearance as existed prior to the occurrence of such loss or damage, promptly after the Agency approves the Plans and Specifications for such reconstruction or repairs; provided, however, that nothing contained herein shall obligate the Developer to restore any retail tenant's leasehold improvements. (b) The Agency shall review the Plans and Specifications for such reconstruction or repairs as soon as possible after filing thereof by the Developer, which review shall be in accordance with the provisions of Article 4 hereof. The Agency agrees to approve the Plans and Specifications for such reconstruction or repairs if the reconstruction or repairs contemplated by such Plans and Specifications will restore the Project, or the damaged portion thereof, to substantially the same condition as existed prior to the occurrence of such loss or damage and if such Plans and Specifications conform to the applicable laws, ordinances, codes, and regulations in effect at the time of filing with the City of the plans and specifications for such reconstruction or repairs. 81 I I... .. I- I I I 1--: I I I- I I I: I I I I I I (c) If the Developer fails to repair or restore any significantly damaged portion of the Project, the Agency may, at its election and after thirty (30) days notice to the Developer, bring an action in a court of competent jurisdiction to recover title or control of the affected Parcel and repair or restore such damage. The costs incurred by the Agency in recovering the Parcel- and repairing or restoring the damaged part of the Project shall be recoverable from the Developer. 21.02 Partial Loss or Damaqe to Proiect. Any loss or damage by fire or other casualty or exercise of eminent domain to the Project or Project Site, or any portion thereof, which does not render the Project or Project Site unusable for the use contemplated by Section 20.01 of this Agreement, shall not operate to terminate this Agreement or to relieve or discharge the Developer from the timely performance and fulfillment of the Developer's obligations pursuant to this Agreementi subject to an extension of time for an Unavoidable Delay. 21.03 Proiect Insurance Proceeds. (a) Whenever the Project, or any part thereof, shall have been damaged or destroyed, the Developer shall promptly make proof of loss and shall proceed promptly to collect, or cause to be collected, all valid claims which may have arisen against insurers or others based upon such damage or destruction. (b) The Developer agrees that all proceeds of property or casualty insurance received by the Developer as a result of such loss or damage shall be available and shall be used for payment of the costs of the reconstruction or repair of the Project to the extent necessary to repair or reconstruct the Project. 21.04 Notice of Loss or Damaqe to Proiect. The Developer shall promptly give the Agency written notice of any significant damage or destruction to the Project stating the date on which such damage or destruction occurred, the expectations of the Developer as to the effect of such damage or destruction on the use of the Project, and the proposed schedule, if any, for repair or reconstruction of the Project. 21.05 Condemnation of Proiect or Proiect Site; Application of Proceeds. In the event that part, but not all, of the Project or Project Site, or both, shall be taken by the exercise of the power of eminent domain at any time before the Expiration Date, the compensation awarded to and received by the Developer shall be applied first to the restoration of the Project, provided the proj ect can be restored and be commercially feasible for its intended use as contemplated by Section 20.01 of this Agreement after the taking, and, if not, can be retained by the Developer. 82 I I~..' I I I I 1"-. I I. I I I I- I I I- I I I ARTICLE 22. MISCELLANEOUS 22.01 Assiqnments. (a) (1) Prior to 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, with the prior written consent of the Agency, to another party 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. (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 j oint venture, in which the Developer or David Wal temath individually is 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 shall not be deemed an assignment or transfer subj ect to any restriction on or approvals of assignments or transfers imposed by this Section 22.01, 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 vlould the Developer in the absence of such assignment. (c) No assignee, purchaser, sublessee or acquirer of all or any part of the Developer's rights and obligations with respect to anyone Parcel shall in any way be obligated or responsible for any of the Developer's obligations with respect to any other Parcel by virtue of this Agreement unless and until such assignee, purchaser, sublessee or acquirer has expressly assumed Developer's such other obligations. 22.02 Successors and Assiqns. 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. 83 II I': I I I I I' I I I I I I I I I I I I 22.03 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 courier service, or by'hand delivery to the office for each party indicated below and addressed as follows: To the Developer: To the Agency: Waltemath Interests, Inc. Suite 1100 3520 General DeGaulle Drive New Orleans, LA 70114 Community Redevelopment Agency 326 West Marion Avenue Punta Gorda, FL 33950 Attention: Waterfront Project l1anager with copies to with copies to: Camille Cutrone, Esq. Faris, Ellis, Cutrone & Gilmore 1207 Whitney Bank Building New Orleans, LA 70130 City Attorney City Hall 326 West Marion Avenue Punta Gorda, FL 33950 and and Michael P. Haymans, Esq. P. o. Box 2159 Port Charlotte, FL 33949 Holland & Knight P. O. Box 1288 Tampa, FL 33601 Attention: David E. Cardwell (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 22.03. 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. 22.04 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, provisi~n or condition to persons or circumstances 84 I 1:- I I I I I I I I I- I I I I I I I I 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. 22.05 Applicable Law and Construction. The laws -of~the Stat~ 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. 22.06 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 Charlotte County, Florida. (b) Each party to this Agreement hereby submits to the jurisdiction of the State of Florida, Charlotte 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 City or the Agency, or both, 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 22.03. 22.07 Aqreement Not a Chapter 86-191, Laws of Florida, Development Aqreement. 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 85 I I-- I I I I 1:- I I I I I I I I I I I I described in Sections 19-31, Chapter 86-191, Laws of Florida, codified as Sections 163.3220-163.3243, Florida statutes. 22.08 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 22.08 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.- 22.09 Complete Aqreement; Amendments. (a) This Agreement, and all the terms and provlslons 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, corres- pondence and statements whether written or oral~ including the RFP and the Proposal. (b) Any provisions of this Agreement shall be read and applied in pari materia with all other provisions hereof. (c) This Agreement cannot be changed or revised except by written amendment signed by all parties hereto. 22.10 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. 22.11 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. 22.12 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 86 I I.' I I I I I I I. I I I I I I I I I I physically attached hereto shall be treated as if they are part of this Agreement. 22.13 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 cOrnri1is.sion-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 Project Site. 22.14 Not an Aqent of City or Aqency. During the term of this Agreement, the Developer hereunder shall not be an agent of the City and 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. 22.15 Memorandum of Development Aqreement. The Agency and the Developer agree to execute, in recordable form, on the Effective Date, the short form "Memorandum of Agreement for Development and Disposition of Property," the form of which is attached hereto as Exhibit "K," and agree, authorize and hereby direct such Memorandum to be recorded in the public records of Charlotte County, Florida, as soon as possible after execution thereof. The Developer shall pay the cost of such recording. 22.16 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. 22.17 No General Obliqation. 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. 22.18 Technical Amendments; Survey Corrections. (a) 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 87 I I". I I I I I: I I I I I n I I I I I I 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. (b) (1) It is recognized that by reason of construction errors, or mutually-agreed upon changes, the Project may not be precisely constructed within the areas as described in the Exhibits. (2) As soon as reasonably possible after completion of the construction of the Project, the Developer shall cause an "as- built" survey and an as-built set of construction plans to be made of the Project. (3) The Developer shall pay the cost of. the survey and preparing the as-built construction plans for the Project. (4) In the event such surveyor plans shall disclose that any portion of the Project has not been precisely constructed within its respective area, or that a precise description of the Project Site or any Parcel may now be desirable, then promptly upon the request of either the Developer or the Agency, except with respect to encroachments in public rights-of-way, the other party will join in the execution of an instrument or instruments, in recordable form, giving valid easements recognizing any new encroachments, eliminating any unnecessary easements or otherwise revising the descriptions of the Project Site. 22.19 Term; Expiration; Certificate. (a) If not earlier terminated as provided in Section 16.06, this Agreement shall expire and no longer be of any force and effect on the ninety-ninth (99th) anniversary of the Original 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) In the event of any dispute as to whether any party is required to execute the Agreement Expiration Certificate, the dispute shall be resolved by arbitration as provided in Article 18. (d) The Agreement Expiration Certificate shall be in such form as will enable it to be recorded in the public records of 88 I n" I I I I I I I I. I I I I I I I I I Charlotte 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 Charlotte County, Florida and the Developer shall pay the cost of such recording. 22.20 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 the date of such execution shall be the Effective Date. 22.21 Approvals Not Unreasonably Withheld. The parties hereto represent that it is their respective intent as of the Effective Date and do covenant and agree in the future that all approvals, consents, and reviews will be undertaken and completed as expeditiously as possible, in good faith, and will not be arbitrarily or unreasonably withheld, unless otherwise expressly authorized by the terms of this Agreement. 22.22 Effect of Amended and Restated Aqreement. This Second Amended and Restated Agreement has been prepared, approved and executed by the parties for their mutual benefit and convenience so as to incorporate multiple amendments to the original Agreement, and for no other purpose. The term of this Agreement is intended to relate back to the effective date and term of the original Agreement, dated as of March 7, 1990, except to the extent of any express changes thereto that have been approved by the parties and incorporated herein. 22.23 Justice Center Site. The Agency agrees to exercise its best efforts so that the County Judicial Center will be constructed substantially as follows: (a) The County shall minimize adverse impacts resulting from the County Judicial Center Project occurring within a two-hundred (200) foot radius of the residential development in Parcel "A" with respect to view, vista, sunline and other similar issues. The Judicial Center Project will be compatible" with the residential development as well as the other development contemplated to occur on the Project Site. (b) The County will establish a design review process that permits the Agency to provide input to the County at the schematic design stage of the County Justice Center Project for the purpose of ensuring the County Judicial Center Project is consistent with the Project located on the Project Site. The County will comply with the City's design review process under its planned unit development ordinance and land use regulations. 89 I I" I I I I I I I I . 1;- I I" I I I I I,' I IN WITNESS WHEREOF, the parties hereto have set their hands and, their respective seals' ~ffixed as of the '16th day of July, 1997. ' ATTEST: .c\ By: &~~UJ~ Ellen Diomedes, as its Secretary APPROVED AS TO FORM AND CORRECTNESS: By:.jJ~~?~ Community Redevelopment Agency Attorney STATE OF FLORIDA COUNTY OF CHARLOTTE COMMUNITY REDEVELOPMENT AGENCY-OF . THE CITY OF PUNTA GORDA, FLORIDA BY:~. -7€/~ Wi iam F. Richards, as its Chairman 7//k-/9;? Date WALTEMATH INTERESTS, INC., a Florida corporation BY~C- ~ '-- ~ David Waltemath, as its President The foregoing instrument was acknowledged ,before me this 16th day of July, 1997, by William F. Richards and Ellen Diomedes, Chairman and Secretary, respectively, of Community Redevelopment 90 I I I I I I I I I I I I I I I I I I I Agency of the ~y of Punta Gorda, Florida. They are personally known to me ~ or have produced valid Florida drivers' licenses as identification. (SEAL) /i'?'~:~~:;;"", . SUSAN SELNER ~(ib:';}:~ MY COMMISSIO~ ' CC450591 E;:PIRF;.~ v>.~...~., Apn/4, 1999 i{,?f.,f'i.\'" BONDED THRU TP.OY FAlN INSU~~:CE iNC STATE OF FLORIDA COUNTY OF CHARLOTTE The foregoing instrument was acknowledged before me this 16th day of July, 1997, by David Waltemath, as President of Waltemath Interests, Inc., a Florida corporation. He is personally known to me 2l or has produced a valid driver's license as identification. (SEAL) ~~ .\j~~ Printed/Typed ame: f:-I \ e..n :r:-'t> \c;,Y"Y\~d~ Notary Public- tate of Florida Commission Number: ..;:.~~::~t;;,. Ellen J. Diomedes {rA';t:~ MY COMMISSION' CC634421 EXPIRES :,:.'~'~'l July 15. 2001 "/{;;;'i-~~.., BONDED TIiRU T~OY fAIN INSURANCE,INC. ...."... 91 t~~ ~~~~,~~';~~'-~~~_/~~~~~~--:'=-=~-'~~'~~:=r--. ~ '- I. ..J ., .. It " " ~. ~ ~ \ '''",,,,., -':-,""",,,c.. c, :;';;C.;" :...._"-"c.c.. C-.,~. , ~ , , I J. I I I I ._'.. .. .._-. . .:~ ,,"-= . ..~ ( - . . EXHIBIT hA" The Project consists of the acquisition of some or all of the various parcels constituting the proj ect Site, the preparation of such parcels for development, and the development on those parcels of various facilities for the Uses indicated on the Parcel Plan and in the PUD Ordinance (as those ter~s are-defined in the Development Agreement), including residential, commercial (includ~ng restaurants, offices and retail), :narina (and Uses adjacent thereto, including dry boat storage)., and hotel. The proj ect also consists of the construction and maintenance of a public pedestrian walkway and a public passive "botanical park, all in accordance with plans and specifications to be approved by the parties to the Agreement. :-.~.- -' ~', .-. :':'~~~~.~~::.~;r..:.""=:i.~': :~~.~:.~~:~~-~~~.~~ ';':~~.~-~!~:.:~;;. -;-?,~:'~;'~f;f-:'S;:-=-~;:-:-~ .-i:.:=" :.~-~': .&.. --~ '-:.~ 95806dda exhA:41 Exhibit B I I: ~ I \\ ..' 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X (<~' :'. 0.: .:':.--".:. ~ ":9, ~ ":;~~'t:~:~\~~.:<j:~< .. / " r.'-- /~ ....... ..~...";:), ..T.>;.................. d.:'-(' '\~. CITY 0 F ,'; "''' ",9 i :-'(0 ""'/' (/ /p., . '. "';/ ~?-':~"/ uG,~-.. v}~>.'. PUNTA GORDA' ? ,,~, <.,<:"//'",'9 !:.' ...."'. .U'..:.:",;:~.,"'..~ ")O::';i..;f<G"I:":<~<-"" I . .' . i> ,/ /' .'. .' . '<-~ . 7.., :A . <(\ \ . '. .' \ ~'- ~ It.. '" .? :\ O''{ . .. - --~'. 'o~" v~' Cj "", .. _ . ~~s . ,,:'" ~0-"-'" . .f :;----- /~:/" 0.\> '" ":, ("t..:'~ ~ .:-;.---' . . " -;>-".\ ... .<C-.,.:/....\~:.J I ' . It ~ ,,'r) ro .... ......... _ \ .' ..' . '. . .'. I '" ...;/~.' / /"" \ y. /"0 .\'[-1.-',.. "'<>. "./ ".:\. .<_ " .... ':'.. '"( ,",~.~:..j ..../ ,,- ----. v" A "'~ /.Q 'U"~" . -? \ '- ~'.... '. . \.\.1.. " - ....<../ .'// ... 0" ~ ", %"..~?""o '~-:l..~ '. 15';. ~"'\. ". ~ ;.....-.. :. ') '. . .;., .., .( . ."/.,' . /\S'. 't:'..", '" v ,,\. ~ . ':r "" , _ .~. .... . ...... .....':' /,/';"x:2'V'~"~' ',i.PLO., \~ ~ "'>" 1:;.... ..~...... ..... ...,~".' 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"'~ .': ./;....z '''. ,;:!<"" ..' .. : / / .. ; / X .' .,"'...... ;. ~ CAR MA LIT A .,' // -~~:/ ~-' /~'':'/ / .,---: .....<:. ;" '" -,.:: -:1~ -===...:. :..:..::.=. .=:::,-: _ ':'_ ........... ) ~' - tS> /". '''''::-b.''' ; ~ // '. " ~ . . ~ J-' y/ , ..~. ~.~. /~~: '.7 . -- ' "';. v . '9- ~_ :"".L.L~._ PROJ Eer: Punta Garda Waterfront Development Project cs.n . . .':~'~ .. 1..- t* -, '. .-~;.. -;". ., ':- ..;:~~.,...~ I I I I I I 1ocation M~ PUXTA' GORDA, flORIDA 4 SCAlf: NO SCALE - 1987 - PUNTA GORDA ZONING .& .... LANN ING DEPARTi\'1ENT ~ e <:n",,... _.. I . )O.''''~ 'Lcr I"': I 'w .:i .~.f ~~~ ,<.~\ ,\~' :'i \ t +t"':~~-f'~ -~"''''''Xl''~-- ~i \ ( ------ 1".1) lr .." t::... J"'~'r ".~'..,.-~!... ~. , ,'t"'''I''- .,.~:"cr , '.S"''"''.'' ",.c.. I to.JS' \~ .:.....".'rlO.. I ""1:':';<-"- I \ fUr __......,...:;.1':___.__ _____._ I .".r'.'l/ . .~,-:or--'- ~'ITn-.:._~:.:I.~_____-==",. I : 'L""" !~\-_.,~;;;;..-..~ " . J,':. 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'=,~. .'\.'('? .....'.~ . . . ~.~~.or I \ ~: " a':! lH7 A:Rrsl 2\ ~r >~ ~\ /~f.\.~ '----'1r.~i_l!.L- ~'.: ".r'- -L ".." l____~~~~ ..' _'''''''( >L!!!,._........ . .,." - .---- .,5.. ._ uur__ 3H;lj"- ~" R~L_ANAOE. - -, ..<1 I '-. ~"~_. l~ ,~~~l i t~ I .~ ~I~ a:o W' ~~ ~;; ~I j ~<i i . ~J ~= "'.... . n~ ~~' l. ~~.. ~ at.. ii' ~ ->>:01-- I ~i; ~~ I I I I I I I. I i... ;:3 ~: . t . ~J_.j ~<..-~~ - ,,' .;. J ~U I.. ... "1"4.=0' I. COUNTY JUOICIAL CENTER SITE .. 10 Ola ACR!S ",;.w >- ~ E t'. 'I ~ ~:: ~ :.~' I 1- EAST ~IAP.ION AVE. I. EXHIBIT 1.le" I I' I I I I I: I I I I I I I I I I I lu (( 1. " ,<( <-'.J J ///" -------........."\ ':h ;:(.'::,,":,."~. TAKE~9-wN SCHEDULE MAXIMUM PERIOD TO ACQUIRE OR LEASE EXHIBIT "b" ,~u~ r q1~~ /b 97 YJ , {/ af~ 13J!}. C~~ r.t '11 Parcel ProDosed Schedule U~1-~Jt:; c-</.,/.~ I' /::....<;.;_<_.(.J~.-_. _.__ A , ~._- ~~_._.r"'__ 36 months B 48 months . '. )'. "J . .( I .-(.c, , . .-- "-.-,.., :. t-:'/ ,j I . i : 18 months; 24 months for 2nd part if the parcel is split per Amended Develop- ment Agreement '.../..: -,. (i Ci C , ' "'- '.' I D 36 months D-1 cf/:u~J If. 12 months . . , ,. I 30 months .., "j ! i L [': _:.u l 1.- I " I .~ 1'-' I. I' . I. I I :. -=-".. .". . .." -::~_.".'-.--':'.- I I I I- I I l I. Exhibit.E NINETY-NINE YEAR G~OUND LEASE THIS LEASE is entered into effective as of the day of , 19 , between the C01.il-ruNITY REDEVELOPMENT p.GENCY OF THE CITY OF PUNTA GORDA, FLORIDA, a public body corporate and politic of the State of Florida (the IILessorll), whose address is , and (the "Lessee II) . .I \'7I{EREAS, Lessor and Hal tei:iath, Inc, I a Florida corporation (the II Developer") I are parties to an agreement for development and disposition of property dated effective as of _, 19_ (the "Development J..greement"), which provides, among other things, for the construction and operation by Lessee of certain Improvements pursuant to a planned unit development order (IIPUD") of the city of Punta Gorda, Florida (the IIci tyll), upon the property described in Exhibit IIAII attached hereto and made' a part hereof (the IIHaroor Developr;lent Propertyll) i and WHEREAS, the Developer, pursuant to the Development Agreement Can, under certain conditions, take a leasehold interest or' a fee simple interest into portions of the Harbor Development Property; and' \~HEREAS, the Developer is permitted under certain conditions to assign its interests under the Development Agreement in the Harbor -Devel"opii1ent dProperty to:::thTraCparty'-~:'f~s'-sEfes r~providirig::khe-:;-.--: . --~ third party lessee agrees to become fully bound with all obligations, liabilities and duties of the Developer under the Development Agreement with respect to the Property leased hereby; and ~mEREAS, the Developer has assigned all of its right, title and interest under the Development Agreement. with respect to that certain portion of the Harbor Development, ;property hereinafter described to (the. IILesseell) whose address is: ; NOW, THEREFORE, in consideration of the covenants and agreements herein mentioned and to be performed by the respective parties hereto, and the payment of Rent herein designated to be paid by the Lessee in accordance Hith the provisions of this Lease, the Lessors have leased, rented, let and demised, and ,by these presence do lease, tent, let and demise unto said Lessee, its successors and assigns, the property situate in Charlotte 1- I'- -. I I I I I., I I I: I I' I I I I I I I. County, Florida, and described and set forth in Exhibit liB" (the "Property") . TO HAVE AND TO HOLD the Property, together with all and singular the tenements, hereditaments, and appurtenances thereunto' belonging, or in any wise incident or -appertaining, unto the Lessee for the, term of NINETY-NINE YEARS (99) -commenci~g effective on the day of ,19 Unless sooner terminated pursuant to the provisions hereof;-this lease shall continue in full force and effect until the day of _, 20_, the earlier of ,.:hich dates shall~e the "Termination Date". I. PelT.1i tted Use. Lessee nay use the Property only for those purposes set forth in the PUD and in accordance with the Development Agreement. Lessee shall not use or allow the use of the Property in any manner that constitutes ,.,'aste, creates a 'nuisance, or violates any applicable law, ordinance, or govern- mental regulation. II. Title to Imorovements. Title to any and all Improve- ments constructed upon the Property shall be in Lessee during the term of this Lease. Upon termination of this Lease, whether by expiration of the term or by reason of the occurrence of an event of default (as hereinafter defined), or for any other reason whatsoever, the Improvements (together with all _fixtures, . equipment ,and articles of personal property which.the Lessee may have installed in or affixed to any Buildings or Improvements for the purposes of operating the Building or Improvements, but excluding trade fixtures ~ furnishings, lighting equipment, and other personal property that may be removed without damage to the Improvements or the Building at the termination of this Lease and \olhich Hill not leave the Improvements or Building or any part : - - thereof,'-in '.an ..- untenantable . condition .: shall' '-"merge""Hi tn:~-'0the"" Lessor I s freehold estate and - become the property of Lessor .as part of the realty. NotHithstanding anything herein contained to the contrary, .nei ther Lessee I s construction of any Building or Improvements from time to time comprising a part of the Property, nor the Lessee's making any alterations thereto, nor the merger thereof with the freehold estate upon the termination of this Lease, shall be deemed to be a R~nt payment paid or payable by the Lessee' to the Lessor. .The word IIBuilding" or "Improvements" as used herein refers to any Buildings or Improvements that may be constructed upon the Property pursuant to this Lease and the PUD. The Hord "Building" or "Improvements" also includes future additions, alterations and other Improvements placed on, under or above the Property subsequent to the execution of this Lease. Lessor's approval of the plans (or any future plans) shall not be construed as approval of the structural adequacy of the improve- ments detailed therein or their conformity' to applicable building codes or other legal requirements. 2 1"- :: ; I~..: I:;:. 1-- I:.~ 1.- .~ .; I.~:' I I', , , I 3 , I: I I' . I I I. I 1.-- 1-- III. Defined Terms. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Development Agreement. IV. Title and Survey. The Lessor covenants that it has lawful title to said preIilises, free and clear of -'all-liens, mortgages and .encumbrances, except for permitted. exceptions under the DevelopIilent Agreement, and Lessor has full authority to make this Lease on the terms herein set forth. Lessor will furnish to Lessee a title insurance commitment and policy I and survey in accordance with the Development Agreement. V. Rent. .- (a) The Lessee shall pay the Lessor, at such place as the Lessor may designate in writing, an annual Rent sum equal to Five and One-Half Percent (5.5%) of the appraised value of the Property (determined as provided in subsection 7.02 (d) of the Development Agreement, plus Ten Percent (10%) of the annual cash flow derived froIil the use of the Property plus Ten Percent (10%) of the proceeds from any sale or refinancing of the Developer1s interest in the Property or the part of the proj ect located thereon. IICash Flowll means net operating' income less debt service and a return on investor equity of not more than Ten and One-Half percent per'year. (The IIRentll) The Rent payment shall COill.iitence' twelve :months from the COB.l'TIencement date of the Lease and shall be payable on the same day of each year month there-' after during the term of the'Lease, and on'the Termination Date for the prorated portion of the final year. The Rent payment shall be paid to Lessor without counterclaim, deduction, set-off or abatement of any nature or kind. (b) All Rent shall be payable .iD..~urrent _lega~..!:~!.ls':.~.?;....,- .... ..~---~-of'- .the~Uni ted " states. of "l"-'lTIerica~;-"'as'- the-;"'same'''is..--theh'; -- l:5y"" 'law (:.~"~ ---, constituted. The extension of any time or times for the payment of any installment or installments of rent, or the acceptance by the Lessor of .any money other thal'l the kind herein specified, shall not be a waiver or release of the right of the Lessor to insist on having any or all of said payments of said rent made in the manner and at the time herein set forth. (c) Les?ee shall also pay when due all sales taxes or similar excise taxes imposed upon or with respect to the Rent. (d)" This Lease is a net Lease and shall yield, net to Lessor, the Rent as and when due and Lessee shall bear all costs and expenses of taxes, insurance, utilities, maintenance and repair. ' (e) Lessee shall pay Lessor interest at the Prime Rate (or another rate. that may" be later established for similar purposes) (the IIprime Ratell)~ of Bank, its 3 I,. I:" I~ I. I. I I I I I I I I I I I I I I successors or assigns, or if no longer conducting banking business, then the largest National Bank (in terms of net worth) located in the state of New York on the amount of any rent not paid when due, for the time period that the delinquency exists. '(f) Lessor, after thirty days notice to Lessee,_shall have the right to assign ~r pledge,th~ Rent payable hereund~r to Lessor by Lessee. (g) Notwithstanding anything in this Lease to the contrary, all amounts payable by Lessee to or on behalf of Lessor under this Lease,whether or not expressly denominated as rent payment, shall constitute lease Rents for the purpose of Section S02(b) (7) of the Bankruptcy Code, Title 11 of the United states Code. VI. Lessor I s Lien for Rent. The Lessor shall have the first lien, paramount to all others on every right and interest of the Lessee in and to this lease on any Building, Buildings, or Improvements placed on the premises, and on any furnishings and equipment, fixtures or personal. property of any kind, or the equity of the Lessee therein i ,.,'hich lien is granted for the purpose of securing the payment of Rent, taxes, assessments, charges, liens and penalties herein covenanted to be paid by the Lessee, and for the purpose of securing the performance of all and singular the covenants, conditions and obligations of this lease to be performed and observed by the Lessee, subject only to any mortgages joined in by the Lessor pursuant to the terms hereof. Such lien shall be in addition to all rights of a landlord given under the statutes of the state of.Florida which are now or might hereafter be in effect. VII. All Taxes Pavable bv Lessee. In addition to the Rent hereinabove specified, .,-and .as a, further part'-of the consideration-::- to be furnished by the Lessee, and as additional Rent for the term demised, the Lessee covenants and agrees with the Lessors that the Lessee will promptly pay all taxes levied or assessed at any or all times during the tern hereby demised, by any and all taxing authorities, including all taxes, charges, assessments, impositions, liens for public improvements, special charges and assessments (including specifically all special assessments and liens on the date of the presents) and, in general, all ta~es, , tax liens or liens in the nature of taxes ,,,,hich may. be' assessed, imposed, or levied against the premises, including the land and all Buildings, fixtures and Improvements which may be here~fter placed thereon, 'and all taxes levied upon the personal property ",hich from tiiTle to time constitutes the furniture, furnishings, fixtures and equipment of any Building or Buildings placed on the Property premises, including all taxes which are assessed by any and all governmental authorities, (city, state, county, Federal, special drainage, school, or other taxing agencies, authorities, or districts, or otherwise), together with any interest, 4 -- I~. '., I., I-c; I-- I:: t I: I: I.' :\ I~~ I I I I I I I I 1- penalties or other charges which may accrue thereon; PROVIDED that in the event any of said taxes or assessments are payable according to the terms of their impositions, in installments, then the Lessee shall have the right to pay the same as s,uch installments fall due. , '- The certificate, bill or statement of the .existence, non- payment or amount of any such taxes or charges described herein issued or given by the appropriate official authorized or designated by law to issue or give the same or to receive pa~ent of any such taxes or other charges shall be prina facie evidence for all purposes of the existence, non-payment or amount of such taxes or charges levied or assessed. Nothing in this paragraph contained shall obligate the Lessee to pay any tax which may be levied or assessed against the Lessor. The Parties understand and agree that the :Lessee shall pay taxes and other charges as enumerated in this numbered section of the lease, and shall deliver official receipts evidencing such payments unto the Lessor at the place at which Rent is required to be made, which payment of taxes shall be made and said receipts delivered at least twenty (20) days before the said tax itself \{ould become delinquent in accordance with the law then in force governing the payment of such tax or taxes. If, hOHever, the Lessee desires to contest the validity of any tax or tax claim, the Lessee nay do so without being in default hereunder as to its obligation to pay said taxes; provided the Lessee gives the Lessor notice of its intention to do so and furnishes the Lessors with a bond with surety made by a surety company qualified to do business in Florida, in one-and-one half times the amount of the tax item or items intended to be contested ""-~"'--':- -,: .condi tioned.- to. =-pay,the ..tax, i tem~_or.o:items,:::in'.:-such ~t'i1i1e:';'as:-:when~~t-he::~~-:"",-",::-,~, . - - validity thereof shall finally have been determined, which said written notice and bond shall be given by the Lessee unto the Lessors not la~er than a day which is thirty (30) days before,the tax item or items proposed to be contested would otherwise become as enumerated in this Paragraph, and furnish the receipts therefore, or to furnish the written notice and bond just herein referred to, not later than twenty (20) days before the said taxes or tax, or any item of them Hould becone delinquent, otherwise the Lessee shall be in default under this lease. In case the Lessee shall fail, refuse or neglect to make any or either of the payments in and by this Paragraph required, then the Lessor, at its option, may, and without constituting a waiver of the default thus occurring in the lease, pay the same, and the amount or amounts of money so paid, including reasonable attorney I s fees and expenses which might have been reasonably incurred because of, or in connection with; such payments together with interest on all of such amounts at the Prime Rate - . 5 L 1-; I I I' I I I I I I -_-=--____ -~\lt~9t~9~__ ~_n_d/ pr I~proy~ments ,__~r said personal p~operty J?Y_ fire:, ...__ 1-- ---- _0- ~~n~-~~~~'~ ~r ~~~y ~~~t:-e{ns~~~~~let~~;~t-- ~~~i~--- ~~e~r~~~~~~~~:Y';~n~;~---:: ::~7~~ Lessor and the Lessee, said suns so paid shall be deposited to the account of the Lessor in a bank in the City of Punta Gorda, I Florida, designated by the Lessor, and shall be available to the . Lessee for the_ reconstruction or repair, as the case may be, of any Building or Buildings damaged or destroyed by fire, ~indsto~ I. - or other cause herein set forth ~or which insurance money shall be payable, and shall be by the Lessor paid out from -said account from time to time on the estimates of any architect I licensed in the state of Florida and approved by Lessor having . supervision of such reconstruction and repair, certifying that the amount of each estimate is being applied to the payment of I. . the reconstruction or repair, and at a reasonable cost therefor; provided, hm.;ever, that it first be made to appear to the satisfaction of the Lessor that the amount of money necessary to I.. provide for the reconstruction or repair and refurnishing of -any Building or Buildings destroyed or injured, as aforesaid, according to the plans ad6pted therefor, which may be in excess I I per annum, shall be repaid by the Lessee unto the Lessor upon demand of the Lessor and the payment thereof may be collected or enforced by the Lessor in the same manner as though said amount were an installment of Rent specifically required by the terms of . this lease to be paid by the Lessee unto the Lessor upon the day when the Lessor demands the repayment thereof or t-he rightful 'reimbursement -therefor of and from the-Lessee. ;- The Parties intend that any temporary extension by tax collecting authorities, or by ordinances, or by statute, of the due or delinquency date of taxes shall not accrue to the benefit of the Lessee, but the Lessee shall, in any event, pay taxes at least thirty- (30) days before the same become delinquent under the general law governing payment of same. VIII. Insurance. The Lessee does hereby covenant and agree ~,'ith the Lessor that it Hill, at all times during the term of this lease, keep insured any and all Buildings and/or Improvements that may be built or placed up-on said Property premises and all personal property which nay be subject to the Lessor's lien hereunder, in 'good and responsible insurance companies authorized to do business in the state of Florida and approved by the Lessor, and any First Leasehold Mortgagee then holding a mortgage encumbering the Property premises, for protection against all losses or damage by windstorm, fire and other casualty and against damage resulting from the use of any boilers situ.ated on said premises, to an ar.-:ount that will be sufficient to prevent co-insurance on the part of the Lessor, and. all such policies issued and the renetvals thereof shall be. payable in the event of loss, jointly to the Lessor, any First Leasehold Mortgagee, and the Lessee, to the extent, if any, as their interest may appear. In the event of destruction of said 6 -- I I: I I I' I I:' I I I I I I I I I, I I I of the amount received upon such policies, hcs been provided by the Lessee for such purpose and its application for such purpose assured; and the Lessee covenants and agrees that in the event of the destruction or damage of the said Buildings and Improvements, or any part thereof, and'as often as any Building or Improvement on said premises shall be destroyed or damaged by fire., windstorm or other casualty, that the said Lessee shall at its expense rebuild and repair the same upon the same general plans 'and dimensions as before the said fire, windstorm or other casualty, or other plan to be agreed upon, in writing, by the Lessor and Lessee, respectively, the reconstruction so rebuilt and repaired and the personal property as so replaced to be of the same value as the Buildings and Improvements upon the Property property prior to such damage or destruction, and shall have the same rebuilt and ready for occupancy within ( ) months from the time when the loss or destruction occurred, This obligation of Lessee to rebuild, renovate or repalr, shall exist irrespective of the availability of insurance funds with which to accomplish such repair, renovation or rebuilding, If, at any time, any such insurance money comes into the possession of the Lessor and the Lessee after destruction or dcDcge by fire and windstorm or other ccsuclty, and the Lessee is in default in the'payment of any Rent, tax, cssessment, lien or other damage which, by the terms of this lease, has been agreed to be paid by the Lessee, or if such default shcll occur during the time said insurance money or any part thereof, is in the bank account, as aforesaid, then the Lessor shall be entitled to receive so much of the insurance money as maybe necessary fully to payor discharge any such sums of money in the payment of which the Lessee is in default, as aforesaid, and this shall be done whenever and as often as any such default shall occur on the part of the Lessee. Nothing herein contained, however, shall be 'coris'E:tuea "as"permitting'. the Le'ss-ee~o-.:.d~faul t......in..'the':::paymeI\t~r -~.~:"'.:.,;:-: the Rent or other charges herein stipulated to be paid or in the performance of the other covenants of this lease, and the Lessor may, at their.option, in case of default in the performance of any other covenant in this lease~ proceed against the Lessee for the collection of such Rent and charges hereby accrued and recover and take possession of the premises herein described, in accordance -vlith the provisions of this lease herein set forth, and without pr'ejudice to their rights to the benefit of such insurance !i'.Oney as security' for the payment of such Rent and other charges. Lessee will forthwith reimburse Lessor for such bcnk account and cause to be deposited therein, for the purpose of reconstruction or repair any amount so paid thereout on account of default of the Lessee; and if the fact that the Lessor has utilized the fund to pay Lessee's Rent which would otherwise be in default, diminishes the fund to the point where there are insufficient funds therein to accomplish the Hork or repair, renovation or rebuilding, the failure of the Lessee forthwith to reimburse Lessor for a sufficient and proper amount to give 7 I I- I I I I I' I I I ; I I I I I I I I I. effect to the terms of this paragraph shall constitute a default in the lease; nor shall the fact that the Lessor utilized a portion of. the funds to pay then maturing and past due Rent, constitute a waiver of the Lessee's default arising by reason of the Lessee~s failure to reimburse Lessor accordingly. It is agreed ..by and between the Lessor and the Lessee that any excess of money received from insurance remaining in the bank account, after the reconstruction or repair of such Building or Buildings, if there be no default on the part of. the 'Lessee in the performance of the covenants herein, shall be paid to the said Lessee; but in case of the Lessee's not co~~encing the reconstruction or repair of said Buildings and prosecuting them continuously to completion and causing such completion to be accomplished within ( ) months after the occurrence of such damage or loss occasioned, as aforesaid, then the amount so collected or the balance thereof remaining in the account, as the case may be, shall be paid to the Lessor, and it will be at its option to terminate this lease" and retain such amount as .liquidated damages resulting from the failure upon the part of the Lessee promptly, -within the time specified, to complete such work or reconstruction or repair. Notwithstanding the provisions herein to the contrary, any and all insurance proceeds in excess of the cost of reconstruction or repair may be applied by the holder of the First Leasehold Hortgage hereunder in reduction of the unpaid principal and other indebtedness due -under such First Leasehold Hortgage provided that no insurance proceeds in excess of the cost of reconstruc- tion or repair shall be applied to reduce the amount of the First Leasehold Mortgage indebtedness unless and until full reconstruc- tion and reoair is comoleted to the reasonable satisfaction of the Lessor ~nd no event.of default shall then exist hereunder. - "d_ ',-:-:'-'-Prbv ided t~::hbweve'r".,-::-tna:t :-:-i.t-~is':'~he:rehy:-;;agreed'=-='b~l;o-~n'a. ';:hetw~e'ii':,. -, . the Lessor and the Lessee that should any claim for damages to the premises, such claim being covered by the insurance provided for herein, be.made, and such claim or claims in the aggregate do not exceed $ , the Lessor does hereby agree to endorse over to the Lessee said proceeds for use in repair to the' premises without conforming to those provisions set forth in this section as may regard the Bank account provided herein. Notwi thstanding the occurrence of any casualty, the Rent provided for herein shall not be abated and the happening of any casualty shall not cause the termination of this Lease (except as specifically herein ~rovided). IX. First Leasehold MortGaGee's Interest in Insurance Proceeds. The Lessee likewise covenants and agrees that in the event any First Leasehold Hortgage has been placed against the Property premises, the Lessee shall be permitted to attach the necessary mortgage and loss-payable clauses, making loss payable a 1-. 1-' I I I I I I: I It is further covenented end egreed that in case, at any I'. tiJll.e, during the continuence of this Lease, the Lessee shall fail, refuse or neglect, after being given ten (20) days' notice to pay premiums for the policies of insurence required in and by I this instrument to be procured by the Lessee, or to keep and maintain the same in full force and effect, the Lessor, at its =":',:..:".k=-=< option -.( and -without such. act- con st-;i:t.ut ing ':.awaiver ,-of:.i:h.e ~.de.f~~~.~:-:.,._ =-~ I by the Lessee thus occurring) may procure or renew such insurance and thereupon, the amount or emounts of money paid as the premium .- or premiums tl1ereon, plus interest et the Prine Rate per annum shall be collectible as thouah it were Rent then matured I hereunder and shall be due and J payable within thirty (30) days after written demand for reiJll~ursement therefor shall have been made by the Lessor upon the Lessee and the Lessee's _ failure to I', effect such reimbursement v;ithin such tir.te thereafter, such demand shall constitute a default herein. I I I I I under such insurance policies payable to the holder of such mortgage, as well as to the Lessor and the Lessee, as their interests may appear. In the event any First Leasehold Mortga- gee, having the right to collect and apply upon the mortgage any amount as a result of loss under the said policies of'insurance, shall so collect any such sums and shall apply it in the payment or in reduction of the First Leasehold Nortgage debt owned to such Ffist Leasehold Mortgagee, then,' ih such case, the ~essor agrees to permit Lessee to obtain funds through a new First Leasehold Mortgagee and deliver in escrow toa duly established national bank, located in the City of Punta Gorda, Florida, and approved by Lessor for the purpose of repairing, rebuilding and reconstructing the improvements then. located upon the Property premises in accordance with and in the manner as provided herein for the rebuilding and reconstruction thereof. Such new mortgage may exceed the amount of the mortgage outstanding against the Property at the time of such loss or destruction, but otherwise shall be in conformity with the requirements of this lease. x. Payment of Insurance Premiums. The Lessor shall, in no way, be or become liable for the payment of any c;>f the premiums required to be paid for any of the policies of insurance required in and by this instrument to be procured by the Lessee, nor shall the Lessor, in any way, be and become liable for the collection or non-collection of any of the proceeds from any of the policies of insurance. XI. Subroaation and Insurance Coveraae Cancellation or Revision. Lessee shall promptly furnish owner with the originals or complete true copies of all .the policies or contracts of insurance and all revisions and replacements thereof, together with certificates or other proofs and assurances, as Lessor may reasonably require, that the insurance coverage is .and at all times remains in full force and effect. All insurance obtained by Lessee shall contain: . (1) a Haiver of subrogation by the 9 - i insurer, releasing and waiving all of its right to recover the amount of any loss resulting from the acts or negligent omissions of Lessor, Lessee and the holders of any. First Leasehold Mortgages and their respective employees, agents and licensees; (2) a provision that no act or omission of Lessee shall affect or limit the' ob1igatiori of the insurance company to pay the_amoqnt of any loss sustained; - and (3), an agreement by the insurer that the policy shall not _ be cancelled, modified or denied renewal without at least thirty (30) days I prior written notice to Lessor, Lessee and the holder of the First Leasehold Mortgagee named as an additional insured thereunder. XII. Assiqnment and Sub1ettina. (1) This Lease shall be assignable only upon ~he following terms and conditions: (a) provisions of Agreement. The Assignment must comply with the terms and Section 22.01 of Article 22 of' the Development (b) The' Lessor must be notified in writing of the assignment and the name and address of the assignee, and that said notice described herein must be received at least five (5) days prior to the execution of any assig~uent of lease as contemplated herein. (c) .P.t the time of the assignment, good standing and shall not be in default. the lease is in - (e) Any person or e~t~ty to which this Lease is assigned pursu.ant to the prov~s~on herein, shall be deemed without further act or deed to have assumed all of the obliga- tions under this Lease on and after the date of such assignment. Any such assignee shall, upon demand, execute and deliver tq Lessor an instrument confirming such assumption. [FOR PARCEIS CONTAINING COMMERCIAL RETAIL SUBLEASES ONLY (1) Lessee shall have the. right to sublet all or any portion of the Property, but" only in . the normal conduct of its business in arms length transactions entered into in good faith. (2) Subject to' the provisions of this Paragraph 3, if for any ,reason this Lease and the leasehold estate of Lessee, or Lessee1s right to possession of the Property, is terminated -by Lessor .in accordance with the terms of this Lease, such.termina- '10 I I I I I I I I I I (b) subject to any offsets or defenses "Which the Sublessor may have against any prior lessor (including, without limitation, the then defaulting lessor), or I (c) bound by any pa}'1ilent of rent which the Sublessee -~~~-:",-'>"": .'::might"'have- p'cdd: ,for - more than -,-th'e:7.'"current .'::ni6:hth::;-to-:' -:-ahy::-~'pri'or~:::"""-:',:':=:f;~ I lessor (including, "Without limitation, the then defaulting lessor), or I I I I I I I tion shall not result in a ternination of any subleases affecting the Property that have been entered into by Lessee prior to the termination in accordance with the preceding Paragraph (2)., (3) ,In the event of a termination of this Lease prior to the Termination Date, each of the subleases shall (provided no default exists unde:r: such sublease W"hich at such tiIue". would them permit the 'lessor thereunder to terminate the SaIne or to exercise any dispossess remedy provided for therein or at law)continue for the duration of its respective term and any extensions thereof (but not, in any event, beyond the Termination Date), as a direct lease between Lessor and the sublessee (each a "Subtenant") thereunder, with the SaIne force and effect as if Lessor had originally entered into each sublease as lessor. However, in exchange for continued possession each Sublessee under a sublease shall deliver to Lessor an instrument (~hich instrument may be contained W"ithin the Sublessee t s sublease) confircing the agreement of the Sublessee to attorn to Sublessor and to recognize Sublessor as the Sublesseets lessor under its sublease in the event of a termination of this Lease. The instrument shall also provide that neither Lessor, nor anyone clai.:m.ing by, through or under Lessor, shall be: lessor, lessor), (a) liable (including, or for any act or onission of without limitation, the then any prior defaulting (d) bound by any covenant to undertake or complete any construction of the Property or any portion thereof demised by the sublease, or (e) Sublessee, or bound by any obligation to :make any payment. to the (f) bound by any !:lodification of the sublease which reduces the basic rent, additional rent, supplemental rent, revenues of other charges payable under the sublease (except to the extent equitably reflecting any reduction in space covered by the sublease), or otherwise" W"hich materially adversely affect the rights of the lessor thereunder, !:lade "Without the written consent of Lessor. 11 1:. I. I: I. I I. I I I I I I I I I I I I' I (4) The linitations of Subsections (d) and (e) of Sub- paragraph B(4) above shall not affect the right, if any, of any Sublessee to terminate its sublease if Lessor refuses to be bound by the obligations referenced in Subsections (d) and (e). Lessor's recognition of each sublease shall include recognition of the rights granted to Sublessees under a sublease to remove furnishings and trade :Eixtures of the. Sub~essee upon the terms set forth in a sublease. Any Sublessee which delivers the aforementioned instrument to Lessor shall not be named or joined in any action or proceeding hyLessor to recover possession of the Property or for any other relief, provided no default exists under the sublease "Which at the tiIne 'Would permit the lessor thereunder to terminate the sublease or to exercise any dispos- sess remedy provided for therein or at la~. (5) Lessor shall, upon the reasonable request of Sublessee, execute, acknowledge and deliver an agreement in and substance reasonably satisfactory to Lessor and the lessee, evidencing its agreenent to the provisions Qf Paragraph 5. any form Sub- this (6) To secure the prompt and full payment by Lessee of all Lease Rent and the faithful performance by Lessee of all of the other terms and conditions herein contained, Lessee hereby assigns and transfers to Lessor (subject to the First Leasehold Mortgage and any collateral assignments of subleases :made in connection therewith and the conditions - hereinafter set forth) all of Lessee's right, title and interest .in and to all sub- leases. Lessee confe:;r:-s upon Lessor a right of entry in, and sufficient possession of, the Property to pernit and insure the collection by Lessor of the Rents and other SUJ:ilS payable under such subleases. The exercise of such right of entry and qualified possession hy Lessor shall not constitute an eviction . of. . Lessee'. rrom the.. Property~.":or ..::.:any. "-p'ort.ion.-::.::t:b.ere'bf ;..:- ~:This;.~~-':": C._A.:; assignment shall become and be operative only: (a) if an Event of Default shall have occurred and is continuing, or Cb) if this Lease and the tern hereof shall be cancelled or terminated pursuant to the terms, cov~nants and . conditions hereof, and, then, in each of such eyents, only as to such of the subleases that Lessor :may elect or is obligated hereunder to take over and assume pursuant to Paragraph 7. (7) At any ti-me and from time to tiJ:ne upon Lessor r s reasonable demand, Lessee shall promptly deliver to Lessor a schedule of all subleases setting forth the names of all Subtenants and other occupants of the Property, a description of the space sublet or otherwise occupied, expiration dates, Rents and such other information the Lessor reasonably requests and a photostatic copy of each of the subleases. Lessee sl1all also 12 I I I I I I I I I I I -.-.-.. - . . . -,-.-.-.- -- -. -- - -- . I I I I I I I I permit Lessor to inspect original copies of all subleases affecting all or any portion of the Property_] XIII. Lessor I s Interest not Sub; ect to Mechanics I Liens. During the demised tern the Lessee is expressly prohib- ited from causing or permitting any nechanics I liens to be placed up'on the Lessor I s interest in the Property and in th~ 'Buildings and Improvements located thereon, or against the furnishings which constitute the equipment thereof, arising through the act of the Lessee, or any person claiming unde~, by or through the Lessee; and that no person who furnishes work, labor, services or naterials, to the Property premises, or to the furniture, furnishings, fixtures and equipment thereof, and claiming directly or indirectly through or under the Lessee, or through or under any act or omission of the Lessee, shall ever become entitled to a lien which is superior in rank and dignity to that of this Lease reserved unto the Lessor upon the lands hereby demised or upon any improvements now or hereafter situate thereon, or upon any insurance policies or...insurance money aforesaid, or on account of any labor or materials furnished for any such improvements, or for or.on account of any other material or thing whatsoever, and nothing in this Lease shall be construed in such a way as to contradict this provision in this Lease. All persons furnishing any such labor or material to the Lessee, or to the premises, at Lessee's order, or at the order of any person dealing directly or indirectly \-lith the Lessee, as well as all other persons whomsoever, shall be bound by this provision and by notice thereof from and after the date of this Lease, and all. materialmen, contractors, ~echanics and labo~ers are here~y charged yl1th notice that they !imst look to the Lessee and the Lessee's interest in all Buildings and Improvements thereon situate, to secure the payment of any and all bills for ~.;ork done, or materials furnished or performed during the term hereby granted .~::-:.~ ':'-.-:."i"-,:....;. . .:~ ':~.--' :::~. :'>:::":-::?"-'~-'--:,~','~";'~- :~"f:;:'=:~'_:.' '-.: :"','.~:._..:.-.' "'~-:":~':.~""~-i<'-: _ _-:_"~; Prior to the co~~encement of any work on the Property for Hhich a Notice of Commencement is required or allowed pursuant to Chapter 713, Florida statutes (or its successor statute), Lessee shall record such notice in the Office of the Clerk of the Circuit Court, Charlotte County, Florida, identifying Lessee as the party for whom such work is being performed and requiring the service of copies. of all notices, liens or" claims of lien upon Lessor. The Lessee shall have no power or authority to create any lien for labor or material upon the Lessor I s interest in the Property, and neither the Lessee nor anyone claiming by, through or under the Lessee shall have any right to file and place any labor or material lien of any kind or character Hhatsoever upon the Property, and the Building and Improvements thereon located so as to encumber or affect the title of the Lessor in said land and the Buildings and Improvements thereon located, and all 13 1= I:' I I I I I.... . . I I I' I .._____ -0 I I I I I I I- I- persons contracting with the Lessee, directly or indirectly, or with any person who in turn is contracting with the Lessee, for the erection, construction, installation, alteration or repair of any Building, Buildings or other Improvements or for the .destruction. or removal of any" Building or Buildings upon the Property premises, including furnishings and fixtures, and all materialmen, contractors, mechanics and. laborers, as .heretofore stated, are hereby charged with notice that as and from the date of this instrument they must look to the Lessee and the Lessee~s interest only in and to the Property to secure the payment of any bill for work done or materials furnished or performed during the term hereby granted. The mere fact of the existence of a mechanics' or material- men's lien or liens, however, shall not, of itself, operate as a forfeiture or terBination of this Lease, PROVIDED, the Lessee, within fifteen (15) days after the recording of such notice of lien among the Public Records of Charlotte County, Florida, shall cause the same to be cancelled, released and extinguished or the premises released therefrom by the posting of bond, or by any other method prescribed by laT,o,', . and proper evidence thereof be furnished to the Lessor, and if such lien or liens appear of record, the Lessee shall cause the same to be cancelled, satisfied and discharged of record. (a) Prior to the Lessor corr~encing the construction of any Improvements upon the property, the Lessee shall cause a performance bond and a labor and material payment bondi each in the sum of one hundred percent (100%) of the Construction Contract price executed by a svrety company'reasonably satisfac- tory to the Lessor, licensed to transact business in the state of Florida, and having a rating of not less than A: Class X, 'as evaluated in the most recently circulated Best's Key Rating --Guide Property-L-iabili ty:. (the-':.ltB6lids 'T>....-..Said:,Bonds::.'..=sn-all :.{~B-a.m~::::-:~..:-.::;~:~ the Lessor and any construction lender as co-obligees, and shall be . conditioned upon full and satisfactory performance by the Contractor of its obligations under the Construction Contract for prompt and' - full payment of all persons providing labor, materials, services, supplies or equipment used directly or indirectly in the performance of the work. The Bonds shall comply with Part II, Chapter 713, Florida statutes, to render inapplicable under law any lien rights against any underlying fee interests in the Property (or any part thereof) owned by the Lessor. !i The Bonds shall also comply with the requirements of section 255.05, Florida statutes, applicable to prosecution and comple- tion of public works projects and the rights of. persons entering into formal contracts \-lith a city, solely in order to protect and preserve the Lessor's fee interest in the Property (or any part thereof), if any, from any.. claim of lien for any such, labor, 14 l I., I: I I 1\ Ii I: I I: I I I I I I I I I service or materials; provided, however, the obtaining and existence of any such Bonds shall not be an ,admission, conces- sion, or determination by the Lessee or the Lessor that all or any portion of the Improvements constitutes a public works proj ect of the Lessor and is subj ect to any and all laws, ordinances, or regulations applicable to such pUblic work projects, except as spe,cifically provided in this Agreement. XIV. Mortaaae of Lessee's Interest' First Leasehold Hortaaaee's Notice and ODDortuni tv to Cure. Lessee shall have the right to mortgage and pledge this lease and all improvements placed on the Property. No holder of a First Leasehold Mortgage on this lease shall have the rights or benefits mentioned in this section nor shall the provisions of this section be binding upon Lessor, unless and until the name and address. of the First Leasehold Hortgagee shall have been delivered to Lessor. If Lessee shall :mortgage this lease in compliance with the provi- sions of this section, then so long as any such mortgage shall remain unsatisfied of record, the following ..provisions shall apply: (a) Lessor, upon serving upon Lessee any notice of default pursuant to the provisions of Paragraph 17 hereof, shall also serve a copy of such notice upon the holder of such :mortgage (the IIFirst Leasehold Hortgageell), at the address provided for below in this section, and no notice by Lessor. to Lessee' hereunder shall. be deemed to have been duly given unless and until .a copy thereof has been so served. (b) Any holder of such First Leasehold Hortgage, in case Lessee sha.ll be in default hereunder, shall, within the period provided in subsection (d) hereof or as otherwise herein provided, have the right to remedy such default, or cause the .,.::--.::.:::.. -..- _same. to .be 'remedied,'.'and Lessor.-:osha-l-F-accept ~:such "performahce=c.':'by;~~,:' :.'_~::"~' or at the instance of such holder as if the sane had been made by Lessee under this Lease. (c) For the purposes of this section, no event of default shall be deemed to exist under Paragraph 17 or this lease in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall, in good faith, have been co~~enced by or on behalf of the First Leasehold i10rtgage within the time permitted therefor t.o rectify the same and shall be. prosecuted to completion with diligence and continuity as provided in this Paragraph 14. (d) Anything herein contained to the" contrary notwithstand- ing, upon the occurrence of an event of Lessee's default under this lease, Lessor shall take no action to effect a termination of this lease without first giving to the First Leasehold Hortgagee written notice thereof and a reasonable time there- after, at its election, either to (i) ~ure said default or, (ii) 15 I-- I I-- I I I I I I I obtain possession of the mortgaged property (including possession by a receiver) by instituting, prosecuting, and completing foreclosure proceedings or otherwise acquire Lessee r s interest und~r this lease with diligence. In the event the First Leasehold l10rtgagee elects under item (ii) above, such holder upon obtaining possession or acquiring Lessee r s interest under this lease shall be required promptly to cure all _default? then reasonably susceptible of being cured by such holder. ~rovided, however, that: (i) such holder shall. not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured; (ii) nothing herein contained shall preclude Lessor, subj ect to the provisions of this section, from exercising any rights or remedies under this lease with respect to any other default by Lessee during the pendency of such foreclosure proceedings; and (iii) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such terms, condi- ti6ns, and covenant~ of this lease which are reasonably suscep- tible of being complied with by such holder... Any default by Lessee not reasonably susceptible of being cured by such holder, shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee's interest in this lease, except that any of such events of default which are reasonably susceptible of being cured after such conmletion and acauisition shall then be cured with reasonable diligence. Such holder, or its designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of t;his lease through such foreclosure proceedings or by assignment of this lease in lieu of foreclosure. (e) In the event of the termination of this lease. prior to . the expiration of the term, except by eminent domain as provided I, ",=,c~~~c:a:~:;~~ e !;ri ~~~~o ~~t f~:S ~~a :ht"nYs~ ~~~'~~~~b:~:ct~%~~~t~~ 'iC ... together with a statement of any and- all SU1"'i\S which 1-lOuld at that time be due under this lease but for such termination, and of all oth~r defaults, if any, under this lease then known to Lessor. Such holder shall thereupon have the option to obtain a new lease in accordance with and upon the. following terms and conditions I I I I I I- I- I Such written request shall be served upon Lessor not later than sixty (60) days after the service of the aforemen- tioned notice by Lessor on such holder, and within thirty (30) days after the ~ervice of such written request, Lessor and the holder of such mortgage, or such holder's designee, shall enter into a neH lease of the Leased Premises as follOivs. Such neH lease shall be entered into at the reasonable cost and expense of the lessee thereunder, shall be effective as of the date of termination of the then current term of this lease, and at the. rent and upon all agreements, terms, covenants, and conditions hereof. Such new lease ?hall require the lessee to perform any 16 I I I I I I I I I I 1- ----.. -. I I I I I I I I unfulfilled obligation of Lessee under this lease which is reasonably susceptible of being performed by the lessee. Upon the execution of such new lease, the lessee therein named shall pay any and all sums remaining unpaid under this lease then unpaid, plus the reasonable expenses incurred by Lessor in connection with the preparation, execution, and delivery of such new lease. During the time period that any p.ortgagee shall hold title to Lessee's interests hereunder through a mortgage foreclosure proceeding or a conveyance in lieu of foreclosure proceeding, and the business use of the property has ceased, then the mortgagee shall not be required to make the annual Rent payments hereunder or any prorated portion hereof, as the case may be. However, upon resumption of the business use of the property the annual Rent payments or the appropriate pro rata portion thereof, as the case may be, shall be resumed and become an obligation of the mortgagee or his designated assignee. (f) No agreement between Lessor and Lessee modifying, cancelling, or surrendering this lease shall be effective without prior written consent of any holder of a first leasehold mortgage on the Property. (g) Any notice of other comrnunication which Lessor shall desire or is required to give to or serve upon the holder of a first leasehold mortgage on the Property' shall.be in i~riting and addressed to such holder at its address as set forth in such mortgage, or in 'the last assign~ent of first leasehold mortgage thereof delivered to Lessor, or at such other address as shall be designated by such holder by notice or writing given to Lessor, and any such notice of communication shall be governed by the notice provisions in Section of the Development Agreement. .. Any' no'tice' or ." other COIn.iilunication<' which- cthe'-holder ::'of ".-a -<first-=>.-. leasehold mortgage on this lease shall desire or is required to give to or serve upon Lessor shall be governed and deemed to have been duly give.n or served in accordance with the notice provi- sions of Section 22.03 of the Development Agreement. ._~ XV. Lessee to Carry Liabilitv Insurance. The. Lessee shall, at .all times, and at its m-m 'expense, . keep the Building and Improvements situated on the Property premises at any time, and all property which is subj ect to the Lessor I s lien .hereunder, during the terms of this lease, in good order , condition and repair, and shall, at all times, save and keep the Lessors free and harmless from any and all damage and liability occasioned by the use of the said premises, and shall indemnify and keep harmless the Lessors from and against any loss, cost, damage and expense arising out of and in connection with any accident causing injury to any person or property whomsoever or whatsoever and due directly or indirectly to the use or occupancy of sa~d premises; and the Lessee covenants and agrees to provide "policies 17. I I I I I I' I I I I I I ~.~-_. I I- I I I I I of insurance generally known as public liability and/or owners', landlord and tenant policies, boiler policies, and elevator policies, insuring the Lessee and the Lessors against. all claims and demands made by any person or persons whatsoever for injuries received in connection with the operation and maintenance of the Improvements and Building or Buildings located therein, to the extent of not less. than. to cover any claim that may arise or be claiDed to have arisen against the Lessor or the Lessee as aforesaid. Said policies, shall be taken with insurance comnanies authorized to do business in the state of Florida and approved by the Lessor. XVI. utilities Charaes. This being a net lease, Lessee shall arrange and pay for all utility services (including but not limited to water, electricity, gas, telephone service, garbage and trash collection, sewer service, and fire protection) used or consumed by Lessee (or Lessee'.s, sublessees) '\olith respect to the Property, and shall indemnify Owner and hold Owner harmless from and against any charge, lien, claim, or demand arising out of Lessee's (or sublessee's) use or consumption of such utilities. XVII. Default bv Lessee. (1) The, occurrence of ,one or more of the following shall be an event of default ("Event of Default") by Lessee: (a) Lessee fails to pay Rent or make any other payment required by this Lease when due and the failure continues for ten days after Lessor gives Lessee written notice thereof. '.." ..- " ., '.'. ~::-;-:9b)Lessee fails.to';',perform ,,'and-:comply~.:~wi'!:l:1~,;~!lY-._. ;"".'. ~..",'::; obligation imposed upon Lessee by. this Lease, other tha'n' .the' _e. obligation to pay ,money, and the failure continues for 30 days after Lessor gives Lessee written notice thereof, or, if the failure cannot be cured within 30 days even with the exercise of all reasonable and diligent effort, Lessee fails to commence all reasonable curative action within ten days after Owner gives' Lessee written notice thereof and fails to diligently and continuously prosecute the curative action to completion. (c) proceedings under the Bankruptcy Act for bankruptcy or corporate reorganization or arrangement have been filed by or against Lessee, and if filed against Lessee have not been dismissed within 60 days after the filing. (d) Lessee makes an assignment of Lessee's property for the benefit of creditors. .18 I I I I I I I (a) Re~enter and re-possess.. the Property (including all Buildi~gs and other Improvements then comprising a part thereof),. and remove any personal property therein that does I not become titled in Lessor and store the same elsewhere at Lessee's expense, without being liable to indictment or for damages therefor, without being deemed guilty of any manner of I trespass and without prejudice to any of Lessor's remedies .for any breaches of covenants by Lessee (including the payment of rent) then existing pr thereafter occurring, and without I relieving Lessee from any liability or obligation. In addition, in the event Lessee is in the process of constructing improve- ments, alterations or restoration of improvements on the property, then Lessor shall receive all of Lessee's right, title I and possession of any plans, construction drawings, specifica- tions, and as-built drawings of any such improvements, or '.,L-;:_ -:--:restoration of. improvements, and.:-:t-hat-:.:..thereafter._.(at~~-'Lesso~.s-T:-:'-:~:-'-;.~. I election) use such items to complete the construction of improvements or restoration of improvements on the Property, and to enter into agreements directly with Lessee's general contrac- I tor, subcontractors and suppliers regarding the completion of any said improvements. I I I I I I (e) A receiver, conservator, or similar officer is appointed by a court or competent jurisdiction to take charge of all or a sub~tantial part of Lessee's property, and within 30 days after appointment the officer is not discharged and possession of the Property is not restored to Lessee. '. (f) Lessee I sinterest in the Property or under this Lease is the subj ect of taking or levy under. execution, attachment, or other process of law and the action is not cancelled and discharged within 30 days after its occurrence~ (g). Lessee abandons the Property. (2) If any Event of Default occurs and exists, subject to the rights. of the First Leasehold Hortgagee, Lessor may (without further demand or notice) immediately or at any time thereafter do one or more of the following: (b) Re-Iet the Property or any part thereof for Lessee's account, but without obligation to do so and without relieving Lessee from any liability or obligation. out of .any rent and other sums collected or received as a result of such reletting,Lessor shall: (a) first, pay to itself the cost and expense of terminating this Lease, re-entering, retaking, repossessing, repairing, altering and/or completing construction at the Property, or any portion thereof, and the cost and expense of removing all persons and property therefrom, including in such costs reasonable attorneys' fees and disbursements through . appellate proceedings and any other expenses of preparing the Property for reletting, (b). second, pay to itself the costs and 19 I I.. I I I I I I I I I I I I I I I I I expenses sustained in securing any net lessees, including the costs of all brokerage commissions and reasonable attorney's fees and any other expenses incurred in preparing the Property for reletting, (c) third, to the extent that Lessor shall maintain and operat~ the Property, pay to itself the cost and expense of operating and maintaining the Property plus interest thereon at the Prime Rate, . and (d) fourth, pay to itself any balance remaining on account of the liability of Lessee to Lessor under this Lease. Lessor shall not be responsibl~ or liable for any failure to. relet the Property or any part thereof, or for any failure to collect any rent due on any such reletting, although Lessor agrees ~hat it shall use reasonable efforts to do so. No such failure to relet or to collect rent shall operate to relieve Lessee of any liability uz:1der this Lease or to otherwise affect any such liability. (c) Bring an action then or thereafter against Lessee to recover the amount of any payment owing by Lessee to Lessor as the same is due, becomes due, or. accumulates. (d) Terminate this Lease by giving Lessee written notice thereof, without relieving Lessee from any liability or obligation for payments theretofore becoming due or for present and prospective damages resulting from Lessee's default. (3) Lessor shall be entitled to recover as dam"ages, any deficiency .("Deficiencyll) between the Rent reserved in this Lease for the period which otherwise would have constituted the unexpired portion of the term hereof and the net amount, if any, of Rent collected under any reletting effected pursuant to the provisions of Subparagraph (2) (b) above for any part of such period (first deducting from the Rent collected under any such reletting all of the payments to Lessor described in subparag~~ph . ~.'":'O".-;-""' (2) (b) "above).-. "Any' such DeficiencY'"shall "be 'p~dd -in '~'iristailfuenb;'-"."-'<'- on the days otherwise specified in this Lease for payment of installments of Rent (or any part thereof), and Lessor shall be entitled to rec~ver each Deficiency installment as .the same shall arise. No suit to collect the amount of the Deficiency" for any installment period shall prejudice Lessor's right to collect the Deficiency for any subsequent installment period by a similar proceeding. (4) ~hethe~ or not Lessor has collected any Deficiency installments, Lessor shall be entitled to recover, on demand, in lieu of any further Deficiencies, as liquidated and agreed final damages (it being agreed that it would be impracticable or extremely difficult to fix the actual damage), a sum equal to the amount by which the Rent reserved in this Lease for the period which otherwise would have consfituted the unexpired portion of the term hereof exceeds the then fair and reasonable Rent value of the Property for the same period, both discounted ~o present value at the rate 01: twelve percent (12%) per annum, less the 20 --.~::-: I I I I I I I I I I I ------ I I I I I I I I aggregate amount of Deficiencies theretofore collected by Lessor pursuant t6 the provisions of Subparagraph (3) above for the same period. Before presentation of proof of "liquidated damages to any court, commission or tribunal, if the Property (or any part thereof) shall have been relet by Lessor for the period which otherwise would have constituted the unexpired portion of the term hereof: (or any part thereof) . the amount .of rent reserved upon such reletting shail be deemed, prima facie, to be the fair and reasonable Rent for the part or the whole of the Property so relet during the term of the reletting. (5) If Lessee fails to pay Lessor any amount that Lessee is obligated to pay, Lessee shall pay Lessor interest thereon at the Prime Rate per year on the amount of the delin- quency 0:1: deficiency from the date due until the date paid, which interest becomes due daily upon accrual. (6) Lessor I s remedies set forth in this Lease are cumulative and not in limitation of any remedy given by law. (7) No taking possession of and/or reletting the property (or any part thereof) pursuant to Subparagraphs 2(a) and 2{b) . above, and no termination of this Lease pursuant to Subparagraph 2(d) above, shall relieve Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, repossession or reletting. (8)' Judicial proceedings for the recover. of Rent payable hereunder or any Deficiencies or other sums payable. by Lessee to Lessor pursuant to this Agreement may be brought by Lessor from time to time at Lessor's election. . XVIII. Receivershin. In addit.ion. to ,the _ oth.~~_._l?~f.~!tty~.,"-.__ "--for'the performance of the lease'~-'the Lessee pledges' with~.~tlie'- . Lessor all of the Rent, issues and profits which might otherwise secure unto the Lessee for the use, enjoyment and operation of the Property premises; and in connection with such pledging of Rent, the Lessee covenants and agrees with the Lessor that if the Lessor I upon default of the Lessee, elect to file a suit to enforce the lease and protect the Lessor's rights thereunder, the Lessor may as ancillary to such suit apply to any court having jurisdiction, for the appointment of a Receiver of all and singular the Property premises, the Improvements and Buildings located thereon, and the personal property located tnerein, and thereupon it is expressly covenanted an agreed that the court shall without notice forthwith appoint a Receiver with the usual powers and duties of receivers in like cases, and such appoint- ment shall be made by such court as a matter of strict right to the Lessor, and without reference to the adequacy or inadequacy of .the . value of the property \-Thrch is subj ect to the Lessor's lien, or .Iche solvency or insolvency of the Lessee; and Hithout reference to the commission of waste. -~;:.: ..... 21 I I: I I I I I- I I I I I I I I I I I I XIX. Relation of Lessor and Lessee. Though this be a long term lease, the parties understand and agree that the relation- ship between them is that of landlord'and tenant, and the Lessee specifically acknowledges that all statutory proceedings in_the state of Florida regulating the relationship of Lessor and Lessee and the remedies accruing to the Lessor upon default of the Lessee, respecting collection-of rent or -repossession of the premises accrue to the Lessor hereunder. XX. Effect of Termination. In the event of the termination of this lease, at any time before the expiration of the term hereof for the breach of any of the covenants herein contained and subject to the First Leasehold Hortgagee's rights hereunder, then, in such case, all of the rights, estate and interest of the Lessee in and under this Lease and in the Property premises hereinabove described, and all Improvements, Buildings cmd the Lessee's interest in all furniture, furnishings, fixtures and equipment then situate in s~id Property premises, together with all Rent, issues and profits (subsequent to the termination) of said premises and the Improvements thereon, whether then accrued or to accrue, and all insurance policies, and all insurance moneys paid or payable thereunder shall, without any compensation made therefor unto the Lessee, at once pass to and become the property of the Lessor, not as a penalty or forfeiture, but as liquidated damages to the Lessor because of such default 'by the Lessee hereby fixed and agreed upon between the parties hereto, all of the parties hereto recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained by the Lessor in consequence of such default, and all parties desiring to obviate any question or dispute, concerning the amount of such damage and the cost and effect of such default in consequence of such forfeiture, have taken these elements into consideration :-:in fixing and agreeing --upon - the:amount.-.'of-'reht.':to:;- be paid by the Lessee to the Lessor. XXI. Enforcement Costs. In case the Lessor shall without fault on its part, be made parties to any litigation commenced by or against the Lessee, then the Lessee shall pay all costs and reasonable attorneys' fees through appellate proceeding~ incurred by or against the Lessor, or in connection with such litigation, and the Lessee shall and will also pay all costs and ~easonable attorneys' fees incurrec;l by, or against the said Lessor in enforcing the covenants, agreements, terms and provisions of this lease, and/or in terminating this lease by reason of the Lessee's default; and that all such costs and reasonable attorneys' fees, if paid by the Lessor, and the rent reserved in this lease, and. all taxes and assessments, and the payment of all money proviQed in this lease, to be made by the Lessor, shall be, and they are hereby declared to be a first lien upon any Building and Improvement placed upon said Property premises at any time during said term. 22 I 1.::- I I I I I I I I I I I I I I I I I XXII. Notices. - (a) All notices, demands, re.quests for approvals or other communications given as required hereunder shall be in writing , and shall be sent by registered or certified mail, postage prepaid, return. receipt requested or by .courier service, or by hand delivery to the.office for each party indicated below and addressed as follows: To the Lessee: To the Agency: Haltemath Interests of Florida Limited Community Redevelopment Agency 326 West Marion Avenue Punta Gorda, Florida. 33950 326 W. Marion Avenue Punta Gorda, Florida 33950 Attention: Waterfront Project Nanager with copy to: , . with copy to: city Attorney City Hall 326 W. Marion Avenue Punta Gorda, Florida 33950 and Holland & Knight Post Office Box 32092 Lakeland, Florida 33802 Attention: David E. Cardwell ~~.-....:..- . (b)- ;Notices given by courier.~service-:or-:,by...;.,hand:::delivery,,"" shall be effective upon delivery and notices given by mail shal.l 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 (pr as it may be changed) shall be deemed to have been an effective delivery as provided in this Paragraph 22. 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. XXIII. Condemnation. (a) If there is a taking of the. vlhole or a. "Substantial Taking" of .the Premises (which term "Taking" when used in this Paragraph 23 shall include any conveyance in avoidance or settlement of condemnation ~r eminent domain proceedings) for any 23 I I: I I I I I I I. I I I I. I I I I I I' public or quasi-public purpose by the exercise of the right of condemnation or eminent domain by any Governmental Authori ty, this Lease (unless otherwise agreed to. the contrary by Lessor) shall terminate as of the date .possession is. taken of the Property by the condemning authority. If there is any taking of the Lessor's and Lessee's Interest in the Property, the aggregate of the award made in connection therewith (including interest) (the "Award")' shall be distributed pursuant to Exhibit lie" hereto and oshall. be treated for all purposes as proceeds from such . taking. (b) A "Substantial Taking" shall be. deemed to hav~ occurred if the Improvements to the Property cannot be replaced or restored to an economically viable unit which is substantially similar in function and appearance to the improvements existing prior to the taking. If Lessor and Lessee cannot agree as to whether a Substantial Taking has occurred the issue will be decided by arbitration pursuant to the Developwent Agreement. (c) If a part (but less than a Substantial Taking, as herein defined) of Lessor's and Lessee's Interests in the Property is taken by any Governmental Authority, then Lessee shall restore the Building or other Buildings' and Improvements affected thereby. If Restoration does not occur because the taking was a Substantial Taking of the Property, Lessor and Lessee will cause a joint sale of the remaining portion of their respective interests in his Lease and the Property to occur as promptly thereafter as possible. The proceeds of such sale (net of all costs and expenses incurred by Lessor and Lessee in good faith and on an arms length basis and directly relating to such sale) shall be distributed pursuant to Exhibit "e" hereto and treated for all purposes as proceeds from the taking. The terms of the sale shall be subject to the reasonable approval of both parties. -- .-- .- - -, 0... '_ --,:.:....:.:~ '.: . "0__ --.:_~:-:--o .~_~~-:;+-~_'.:'_;~;':~-"_:.-:. _.___, (d) If Lessor and Lessee cannot agree on the proposed terms of any sale required within thirty (30) days after Lessee has submitted to Lessor the proposed terms, the reasonableness of the proposed terms shall be submitted to arbitration pursuant to the Development Agreement. (e) The reconstruction period required fo+ restoration shall be determined by an estimate of a qualified architect or engineer selected by Lessee and approved by Lessor (which approval shall not be unreasonably withheld) based on a restora- tion schedule (assuming all building and other permits required for such reconstruction have been obtained prior to the commence- ment of restoration and that there will be no delays due to settlement of any condemnation claims or aHards or the use by Lessee of such proceeds) which shall be reasonable and ap- propriate under the circumstances. 24 I I I I I I I I I I. I I" I I I I I I I (f) If Lessee is required to make any repairs, alterations or restorations following a taking referred to in Subparagraph (c) above, then the following provisions shall apply: (i) ,. i (ii) '. . ... --.-.-.......-.---...:___ w_ _.- . ".... .. ...-.. This Lease shall continue in full force and effect as to the remai~der of the Property. .However, Rent payable during the. remainder of the term occurring after the taking by the condemning authority shall be reduced as of the date of the taking (or the date Lessor receives the portion of the Award, if any, to which it is entitled pursuant to Exhibit lie" hereto, if later) by an amount per year equal to twelve percent (12%) of the portion of the Award received by Lessor, allocated :t;o the Land taken. The Lessee I s portion of the Award shall be paid, held and/or disbursed in the same manner and under the same terms and conditions as if it were proceeds of casualty insurance pursuant to Paragraph 8 hereof, ,.,ith the work required to repair the Property from the effects of the taking or condemna- tion pursuant to Subparagraph 23(f) (iii) below being deemed a Restoration. _u --..-. -.' -.' . _...._ ~,~""~'';~?';'>:~,~~':'';.':;'5==?:~'-:~~,==.'.~.-:.~:~:.:..._- . (iii)Lessee (at its sole cost and expense) to the extent of its portion of the Award shall promptly COIiunence and thereafter proceed with due diligence to repair, alter and restore the remaining part of the Building (or the other Buildings and Improvements) so as to constitute a complete and self- contained architectural unit and, to the extent practicable, of a character and condition substan- tially similar to the character and condition existing immediately prior to such taking (or as nearly as practicable in accordance \.d th the foregoing standards as may be accomplish~d with the Award 25. I I I I I I I I I I I I I I I I I I I available therefor). Any portion of the Award remaining after the making of the Restoration shall be distributed pursuant to Exhibit "C" hereto, and shall be treated for all purposes as proceeds of such taking. If the taking dO!3s. not involve a taking of' any part of Lessor's interest in the Property (including Lessor's residual interest) then the remaining proceeds shall be paid to Lessee. (g) If the whole or any part of the Property shall be taken in condemnation proceedings or by any right of eminent domain for a temporary use or occupancy, the term of this Lease shall not be reduced or affected in any way and Lessee shall continue to pay in full the Rent herein reserved, without reduction or abatement in the manner and at .the times herein specified. In such circumstances Lessee shall continue to perform and observe all of the other covenants, agreements, terms and provisions of this Lease as though such taking had not occurred, except to the extent that Lessee is prevented from so doing pursuant to the terms of the order of the condemning authori ty. In the event of any such temporary taking, Lessee shall (subject to Exhibit "C" hereof) be entitled to receive the entire amount of any award made, whether the award is paid by Vay of damages, rent or otherwise, unless the period of temporary use or occupancy extends beyond the Termination Date. If the taking extends beyond the Termination Date the award, after paying Lessor the estimated cost of restoration of the Property to the -extent that the award is intended to compensation for damage to the Property, shall be apportioned between Lessee and Lessor as of . the Termination Date in the, same.,,-ratio.that-::-ther.~part-.,.;;of"1:.:the - . entire period for which such compensation is made falling before the Termination Date and that part falling after, bear to such. entire period. Notwithstanding the foregoing provisions of this Paragraph (g),. if a First Leasehold Nortgage exists on the Property, any lump-sum payment shall. (at the election of the holder) be paid to the holder of the First Leasehold Hortgage. The holder of the First Leasehold Mortgage shall hold and apply said sum: .(1) first to the payment of all Rent from time to time becoming due to Lessor under the terms of this Lease during the period of such temporary occupancy, (2) next to the payment of all amounts from time to time becoming. due under the First Leasehold Mortgage, (3) next to the making of any Restorations on account of such taking as herein provided and (4) any balance, if any, to Lessee. (h) Lessor and Lessee shall" if possible,. separately prosecute their respective claims for damages arising by virtue of any condemnation or emi~ent domain proceedings referred to in 26 I I I I I I I I I I I I I I I I I I I this Paragraph 23. Any awards received therefrom shall be subject to the provisions of this Paragraph 23 as to the ultimate apportionment of the award as between the parties. (i) If during the tem of this Lease any portion of the Property (that is, with respect to Lessee's leasehold interest therein) shall be voluI1tarily devote<:1 to public or quasi-public use by Lessee, it is expressly agreed there shall be no abatement of any Rent on account. of said voluntary application to public use, nor shall Lessee thereby perruit the public to acquire any right to or interest in any part of the Property. XXIV. Lessor's Riahts Under Bankruotcv. (a) Subject to the rights of the First Leasehold Mortgagee described, if an order for relief is entered or if any stay of proceedings or other act becomes effective in favor of Lessee or Lessee's Interest in this Lease in any proceeding which is commenced by or against Lessee under the pres.ent or any future Federal bankruptcy code (or any other present or future ap- plicable Federal, State or other statute or law) Lessor shall be entitled to invoke any and all rights and re~edies available ~o it under such ,bankruptcy code, statute, law or this Lease. Lessor's rights shall include, without limitation, such rights and remedies as may be necessary to adequately protect Lessor's right, title and interest in and to the Property (or any part thereof) and adequately assure the complete and contin~ous future performance of Lessee's obligations under this Lease. (b) If this Lease is assigned to any person or entity pursuant to current or future provisions of the Bankruptcy Code, 11 U.S.C. }} 101 et. seg., any and all monies 'or other considera- tion payable or otherYlise delivered in connection with such assignment sha;Ll be paid or .deliyered to..::.r.essor, .shall....be ..,.,and. remain the exclusive property of Lessor and shall not constitute property of Lessee or the estate of Lessee with the meaning of the Bankruptcy Code. . (c) If. this Lease shall be assigned .pursuant to the provisions of the Bankruptcy code, such assignment snall only occur if the assignee shall have a net worth, determined in accordance with generally. accepted accounting principles consistently applied, .of at least $ In confirma- tion of such net worth, the assignee shall deliver to Lessor a satisfactory balance sheet of said assignee effective as of. a date not more than thirty (30) days prior to the proposed date of assignment. If the assignee fails to deliver its balance sheet in accordance with the provisions of this Subparagraph, such assignment shall not be deemed to satisfy the requirement ,?f providing adequate assurance of future performance under th~s Lease. 27 -, _: -- ;-;: I I I I I I I I I I I I I I I I I I I xxv. Disbursements bv Lessee After Default. From and after the date which Lessee receives written notice from Lessor that a Default has occurred hereunder, and until all such Defaults (or Events of Default) shall have been cured, Lessee shall not pay, disburse or distribute any undistributed cash, certificates of deposit, united states Treasury bills or similar cash equivalents or any other assets belongin~ to Lessee.which.are then held by or on behalf of Lessee to any person or entity other than a creditor in the ordinary course of business (which is not an Affiliate of Lessee) in payment of sums then due and owing by Lessee to such creditor. XXVI. Ecruitv Particinant. If at any time no First Leasehold Mortgage shall be in effect, all references in this Lease regarding notices to and. curative rights reserved for a First Leasehold Hortgagee shall be de..emed to nean notices to and curative rights reserved to any partnership or other equity participation pursuant to which an institutional lender or investor has acquired an equity participation in..the Project. In such case the term First Leasehold Mortgagee shall ref~r to the institutional partner or the ins~itutional holder of such. equity participation. XXVII. Iniunctive and Other Relief. In the event of any Default by Lessee of any of the covenants, agreements, terms or conditions contained in this Lease, Lessor shall be. entitled to enjoin such Default and shall have the right to invoke a~y and all rights and remedies allowed at law or in equity or by statute or otherwise as though re-entry, sUifuuary proceedings. and other remedies were not provided for in this Lease. XXVIII. Remedies Cumulative. SUbj.ect to the notice and curative provisions herein contained for the benefit of Lessee, . each right and --remedy of Lessor provided for in .this .:Lease ..shall.. be cumulative, in addition to every other right or remedy herein provided or now or hereafter existing at law or in equity or by statute or otherwise. The exercise by Lessor of' anyone or more of its rights provided for in this Lease, existing at law or in equity, or by\ statute shall not preclude the simultaneous. or later exercise by Lessor of any or all other rights or. remedies provided for in this Lease or now or hereafter existing at la or in equity or by statute or otherwise. XXIX. Lease Not Affected bv Damaqe to Prooertv. No destruction or damage to any Building or Improvements by fire, windstorm or other casualty of any kind, character, or nature, shall be deemed to entitle the Lessee to surrender possession of the Property premises or to terminate this lease, or to violate any of its provisions, or to cause any rebate or abatement in rent then due, 'or thereafter becoming due under the terms hereof. 28 I I I I I I I I I I I I I I I I I I I IN WITNESS WHEREOF,the parties hereto have executed this lease as . of the date first written above. LESSEE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF Pu~TA GORDA,. FLORIDA, a public body corporate.and.politic in the state of Florida LESSOR STATE OF FLORIDA COUNTY OF CHARLOTTE day The foregoing instrument.was.acknowledgedbefore.me.this of , 19 , by for . as .- ---- _.. ._-~. ~-.- ... . .-_.. .. -- . - -;. ...-:.::--~.~-~~-.:::;;:.:.::~=..:..~-::-..~. - :-_ __0. ..., -_ ~::-;~.:-...:~~._-=-~~_..~-:-.~.~.::.,.:-c~:: '. Notary Public (AFFIX NOTARIAL SEAL) My cOIi\Ii\ission Expires: STATE OF FLORIDA COUNTY OF Ca~OTTE The foregoing instrument was acknowledged before me this day of , 1990 by as of the Community Redevelopment Agency of the city of Punta Gorda, Florida, a public body corporate and politic in the State of Florida, on behalf of the city. .' Notary Public (AFFIX NOTARIAL SEAL) My Commission Expires: I; I I I I I I I I I I I I I I I I I I Exhibit "FII FEE SIKPLE DEED The 'Grantor., COHHONITY REDEVELoPMENT AGENCY OF THE CITY OF PUNTA GORDA, FLORIDA,..a. public body corporate and politic of the state. of Florida, in consideration of the sum of Ten Dollars ($10.00), and other valuable considerations received from the Grantee, , whose mailing address is . , hereby conveys in fee simple to the Grantee the land described in Exhibit "A" attached hereto and made a part hereof, SUBJECT TO: (1) city of Punta Gorda, Florida, and Charlotte County, Florida, taxes. for the year and taxes. or assessments'which. are not shown as existing liens by the Public Records; (2) the nature and extent of riparian rights; and (3) zoning regulation~ of the City of Punta Gorda, Florida. Date of this fee simple deed: , 19 COMMUNITY REDEVELOPHENT AGENCY OF THE CITY OF PUNTA GORDA, FLORIDA, a public body corporate and politic in the state of Florida ....- .-'" -- - .... . ... .. . GR"l\.NTOR.,.., J-= .~"'_ :::.-:. :_-=:..: '. '. . - .--.--... --- .--..-- . .,:,.'~~",:,=--'-:~_=.'....:::;.:.- !~~.7' -::," .- .. - .--:_~:..~ By: as its GRANTEE Charlotte County Property Appraiser Parcel No. This instrument prepared by: I I I I I I I I I. I I I I I. I I I I I STATE OF FLORIDA COUNTY OF CHARLOTTE The foregoing instrument was acknowledged before me .this day of , 19. , by' as -for Notary Public (AFFIX NOTARIAL SEAL) My Commission Expires: STATE OF FLORIDA COUNTY OF CHARLOTTE The foregoing instrument was acknowledged before me this ___ day of . , 19_, by as of.the COInIilunity~Redevelop:ment Agency of the city of Punta Gorda, Florida, a public body. corporate and politic in the State of Florida, on behalf of.the city. (AFFIX NOTARIAL SEAL) Notary Public My commission:Expires: ___ __::_ ~...::.:_:-: . ':'..:: _-=- -:-_." "=.__:.-:-:- .,>_~~::,_~_~~:,~~_:~&~,,":.~'::';..:-:.-,' '.;0 ;'~::--~___~_:'-'_--_'_<: _~.~ ~~._... PGFee Deed:41 2 I I- I I I I I I I I I I I I I I I I I Exhibit "G" MECHANICS' LIEN .AND POSSESSION AFFIDAVIT STATE OF FLORIDA COUNTY OF CHARLOTTE . : BEFORE ME, the undersigned authority, this day personally appeared who being by me first duly sworn says: . J.. That the Affiant is. community Redevelopment Agency of the city Florida (the IIAgencyll) and is permitted.to make its behalf. ,of the of Punta Gorda, this Affidavit on 2. The Agency' is' the .owner of _ certain real . property located in Charlotte County, Florida, which is more particularly described in Exhibit "A" attached hereto and made a part. hereof (the' ,IIProperty") .... . 3. The Agency has the sole and exclusive possession of the Property. 4. No labor,' services, or ,materials have.been furnished by any person or entity employed' by the JI.gencyin connection . with the improvement of. the Property within 90 days immediately preceding the date of this' Affidavit for which any sums remain unpaid; there are' no. mechanics', materialmen' s or other labor liens against==the' property; a'nd'~'ho:;--pers6h' or~ehtlty':is "en'tItled to claim or file such a lien against the Property. 5. Ther~ are no unrecorded mortgages, easements, leases, utility liens, or option agreements affecting the Property. .. . ..... . 6.' There'are no taxes or special assessments affecting the Property. which. are not' shown :as.. existing liens' by the :public records, except ~axes for the year- which are not yet due and payable. ---- . No. 7. He is familiar with chicago Title In.surance Commitment 8. Records There have been no documents recorded in the Public of . Charlotte County, Florida, subsequent to , J.9 , at '8:00 a.lil. which effect title to the insured,--and the Agency has not entered into any for the sale, disposition or leasing of the subject Property contracts Property. I 100 I I" , I i I I I I: I I I I I I I I I I 9. Insurance estatel This Affidavit is Company to issue given to a(n) ~ti tle induce Chicago Title rovners leasehold insurance policy to Affiant STATE OF FLORIDA.. COUNTY OF CHARLOTTE Sworn to and subscribed by me this 19__, by , Affiant. day . of (AFFIX NOTARIAL SEAL) Notary Public My Commission Expires: PGMechoLienAf:41 -- --. -- . .... . ..- _.. -- -- - '. . . . ...... .. ..... "'-:_-:::-=~.""=~~~:~.~.:'~-'--=::.'::::".:~!~_~.' _.-:- ~':~-,:;.~-:":'-""::7..~~-=:-:: ~.. ~~'-"-'.- . ~. ... . .. _<0 _. .. . T'1. .. . . T'" __...... ~.. _. . , .. . . - ... ... .. ..... . - .. . -;. ... =-.:...".. -.. .':.. ':..':.. .. ..: . .. _.. ... .. . . . ..... . "0' . :. .0' ...,..... _...o. .o.... . . ".: ._ 0.__ .. ...... __ .. ..._ . .10 I".".. . 2 I I' I I I.. I -. .-', I . ---- - .,- - ---..... I '. '.,~: ~ '. . . . .~! ..,0 , I. -....-. '"'..' '-.. I I I I I I I I "Z 4, It a .I o ~ ~ , Cl. I .t . I I '---------, I I ~ \lie! J~ ~Q. 0( J IIJ~ i J , i", ~J ..... ~ . 'f · ;t-rt! I I , ,----------- II n I I ~ ~ ~ .. ~. ; ,.J . > == LU :> Z <{ ...J 0.. \ \ II .. '2 ~ \I. 1 c. i ~~ .w 1) ia. ':,0 '! II '> 1 l. oJ t:t .. ~ == LU '~:1 0 1-. i "<:' Z .0 O::~ u.: '; L ~ <<Ii ~~ ;' en ~". 8 ~w1" c.. . '.' . ~:.:!.,.. _ ~s:~f:..'I._7. 0__ ~~... ~ .- ---"0 -."". -;.1'. . 1 ..- 0 --'-'-.--CJ- -. -- ."! .' ~~. .. z ,. . p.v ""l 0 4 , ~ 0: CJ 'Z P.)" '1 L z ~ rl '2 S ~ f. 8 : . ~ ,( ~ .. I CJ ~: I ~ ~~ I H all I G g ;. ~ ~ , ~J · ~ Q. j 5 . : 8 .; g c: 8 tn ..:l o c: 8 Z o tJ EXHIBIT "W >0 c: :z: o tn < :i: C:._ CJZ- H Q: LI'I<O ....Q:g:j NC - "<:' Nt:J. NCC HO II en"<:' "'" E-o H :.;:: Lt, . z < ....ot:J HQ: ~E-o< ,( OQ:E-otr.l ....E-<CJt:J (:)~t:Jc: -H~CJ "<:'1:..0< .... Q: Z E-<c.o o II:Z: . H ~:i:0'I E-< C::JO < Z~Q:c:' :> OC:.C:.O . t:J . c. C:." .. ~ t:JC:.,( ~ I:.. C:.~ O>OOC: :i: ~z< o t:J ::J c: :i:tr.lC:E-< C:. ::JH Z ~ 1:..t:J Z 0t:J0:i: o :>~ c.. H c:: = 0 8 81(N~ < Z::r::......t:J :> t:JCJ....:> t:J :i:tr.l t:J ~ E-<HtnC ~ <CH r>J ..:l 8 C::r>Jt:J1( ~ 8SS~ c:: >O~~8 CJZ800 OH:>:>tr.l C:H~ t:J HE-<<88~ t:JtJ::JZZ... :';:::Jot:J~~ r>J'~ c: ~ E-4 tntr.lr>JI(I(C HZ8r>Jt:JZ ,(o,(c:g::o C:CJ~88c.. o e-. o l""l u u ... ci5 .. c: .,g ~ ~ ~ -..l ~ ~ \ -= ~ . : '1 " " i \: k.::'J ... U > .~ U u ... ~ __J ... ... - _. ... '. '- ': .>< .W ~ >tb ~g ;; - II t~ ~. <C u \I) .z~ ..~ ~ ~~ P-i;:, ~..... E-< ~ CI) 'Q ~ CI) ~ > ~ ~>< f'U O\Z O\UJ MO ..< E-<f-< 'U z ~UJ .....,;:E ~g P-i. ~ ~~ ~~ ~>< ~t ~5 ~~ QO ~U O~ C> ~. o fSO Z~ ::>~ I I I I I I I I I I I I I I I I I I I EXHIBIT "J" PUBLIC IMPROVEMENTS REIMBURSEMENT SCHEDULE Phase Parcel Maximum Time Period 36 months ~. .3.Lt:.. i-eJ <1~,,~ 12 months 48 months Subtotal 18 months 36 months 30 months I A II C-2 III B IV c V D IX I Subtotal Total Reimbursement $ 68,718.33 22,986.11 22,986.11 22,986.11 $ 68,958.33 $183,888.88 If the Developer does not acquire or lease a parcel in accordance with the Agreement at the times provided in the Takedown Schedule, subject to adjustment as provided in the Agreement, then the Developer forfeits, waives" and loses any right which the Developer may have to acquire or lease that Parcel, as the case may be, and in that event, the Developer shall not be responsible for paYment of the amount in the "Reimbursement" column for that Parcel. I I. I I I I I I I I I I I I I I I I I Exhibit "K" MEMORANDUM OF AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY This Memorandum of Agreement for Development and Disposition of Property (hereinafter, "Memorandum") is made this day of , 1997, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PUNTA GORDA, FLORIDA, a public body corporate and politic of the State of Florida (hereinafter, the "Agency"), and WALTEMATH INTERESTS, INC. a Florida corporation (hereinafter, the "Developer"). This MemorandQ~ pertains to an agreement by and between the Agency and the Developer, originally dated as .of March 7, 1990, amended and restated as of October 4, 1995, and further amended and restated as of . , 1997 (hereinafter, the "Development Agreement") which provides, among other things, for the sale and lease of various parcels of property within a project site, described in Exhibit "A" attached hereto and made a part hereof, for the development and construction of the Residential Project, the Retail Project, the Commercial Project, the Office Project, the Marina Project and the Public Improvement Project as same are defined in the Development Agreement. The Development Agreement is incorporated herein and made a part hereof by reference as fully as though it were set forth herein in its entirety. It is the intention of the parties . .to . herepy r~t.~.fy.l. approve and confirm .the.. D.eyeJ.opment_ ~g~,~~~~I}t '~'_'__ as a matter of public notice and record. Nothing' he"rein" sha'll"" 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 Memorandum 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 Punta Gorda, Florida. This Memorandum supersedes and replaces that Memorandum of Agreement for Development and Disposition of Property, dated as of September 6, 1995, and recorded on September 27, 1995, at OR Book 1423, page 1348 of the Public Records. of Charlotte County, Florida (hereinafter, the "Original Memorandum"), as previously amended. By the execution of this Memorandum, the parties hereto acknowledge and agree that the Original Memorandum, as previously amended, is null and void and no longer of any effect. 1 I I": I I I I I I I I I I I I I I I I I IN WITNESS WHEREOF, the parties hereto have set their hands and had their respective seals affixed as of the day and year first written above. (SEAL) ATTEST: By: , as its Secretary - .. --.- -_......... . ... .:. :.,~:..:- .:.... e_:- _'.~.:. ::. .. :_-:- ___, ...._ . (SEAL) ATTEST: By: , as its Secretary COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PUNTA GORDA, FLORIDA By: , as its Chairman WALTEMATH INTERESTS, INC. By: David Waltemath, as its President .. ..~~. '-==~:::::::. ~:::""":. -: "'_ -.:.; ........~~.~-;... '..-:-.:~9"~~.~~-::':-::~_'-:~":, __ -;--. >. . . . _." .- - . ..---- 2 I I. I I I I I I I I I I I I I I I I I STATE OF FLORIDA COUNTY OF CHARLOTTE l ~ Execution of the foregoing instrument was acknowledged before me this ___ day of , 1997, by , as of the Community Redevelopment Agency of the City of Punta Gorda, a pUblic.body corporate and politic of the State of Florida, on behalf of the Agency. He is personally known to me___ or has produced a valid driver's license as identification. ( SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Expires: STATE OF COUNTY OF Execution of the foregoing instrument was acknowledged before me this day of , 1997, by David Waltemath, President of Waltemath Interests, Inc., a Florida corporation, on behalf of the corporation. He is personally known to me __ or has produced a valid driver's license ---:"'?l-.~_.~d~.I} ti f ic.a tio.n. . .._:"_....:-:'-.~:-:"_:"::"':__: -=.-:-:-~-':~:-'-.~.,.~:-:::"i:~..,.:...7:.:...'.:~ .;:...; 'C-'. ". . . ( SEAL) Printed/Typed Name: Notary Public-State of Commission Expires: 3 I I I I I I I I I I I I I I I I I I I ~ ... co ;:, co .... ..,..,. -... .......... ...... 0.0 u ... '" ... "'" ... >- e-. z ::> o ri U M M ~ ri e-. , e-. OD 0 -ri o-J III ~ ri 0:: :I: WC--U CJ~ 0:: .. I Cl.C-- 'Ille-. :.: .. ~ Ori::> OriO CQ U C-- ~0'Ie-. O,~ M::> ri'U MM~ ~..H OOU C--W oqoOW "~:I: WOe-. o-JU ~Wt<, t<,~0 :.: =~ ===W =o-J ==U - ~ -.. 5S~ =0 -U ==(1) = - . =e-. E~ =.:: -CQ -~ =.:: =fXl , . J '.~~ Exhibit "L" *RG-m~ /0:" . - (! //~ ~,c jJUPTrr:C-o.o4- <::$(!)~77/ tfJ~(/P7J'/JtU~ " fJ/~I<--~ /l "" . . This Instrument Prep:ll'ed By: . Debornh Trim Submersed Lands Section . Bure:lu or Land Manasement Services 3900 Common~c:allh Boulevard Mail Stalion No. 12S Tallahwce, Florida 32399 IM~GE{J'~ G BOARD OF TRUSTEES OF nIB tNlERNAL IMPR.OVEMENt' TRUST FUND OF nIB STATE OF FL~IUDA SOVEREIGNTY SUBMERGED UNDS LEASE RENEWAL No. 080000095 U .". . C::C ... ... - co -... ~ a nns LEASE is hereby issued by the Board OrTru.slees orllle Inlernal Improvemenl Trusl Fund o:lhe Stale or Florida, hereinafter rererred 10 as the Lessor. ..: Wl1N~SETH: Th:ll ror and in considernlion or p:Iyment or IIle ;mnual lease rees herein:lfler provided and Ihe r:lithful and timely perrormance or and compliance wilh alllenn.s and conditions staled herein, the Lessor does hereby lease to City or Punta Gorda. a munic:i031 coroorntion. hereinaner rerc:rred 10 as the Lessee, the sovereign lands described as rollows: ~COllll YC.~ltiEll'll"-~iAl!A T. xm: C , LS~ BY .!...AT STU~ D.C. "A pareel or sovereisn submersed land in Section ~ Township 41 So 11th. R.:1lIge 23 Eastin Ihe PC<lce River. Charlorre County, conlaining"272,320 square reel, more or less, as is more particul:lrly described and shown On All:ldullent A, d:lled October 26. 1986, ,-0 HAVE nm l!~~Or-Ihe herein:lb~ve d~cribc:d pre~~rrom SeDtember23. 199G.IIIC;e,r.r~~.!h:~ I!?t~~.lh.is !~e ~~~~7C;:=_"=-~:" " renew:ll, through September 23. 200 I . IIle expirntion dale or Ihis lease r~ne\'(al. The terms and conditions .on and ror which this lease renewal is grnnted arc: as follows: I. USE OF PROPERIT: The Lc.ssee is hereby authorized to Opel'llle exclusively a DubHe marina facility and bo3t rnmD used in coniunclion Wilh nn IInl:lnd nark. without rueling faelJilies, with a sewOlge pumpout rOlcllity lrit meets the requirements oflhe Division or Environmental Resource Penniuing or local autllority, whichever entity applies IIle more slringent criteri:l, and ~ Iiveabo:ll'ds, D.S shown and conditioned in AUachmen~ A. . 2. LEASE FEES: 11le Lessee hereby lIg,recs to pay to Ihe Lessor an :1lInuallease fee or ~~~ (lease rees assessed on 3 1.302 squ:ll'e feet; lease rees on 241. 018 squ:Il'e feet are waived) plus sales ta.,,< pursuant to Section 212.03 I, Florida Statutes, ir applicable, within 30 days or the d:lte of receipt or the Invoice. 11le annual fee ror the remaining years or the IC:lSe shall be adjusted pursU:1llt to provisions or Section 18-21.0 I I, Florida Adminisirntive Code. The Division or StOlte Lands will notify the Lessee in writing orthe anlount and the due date Orllle annual paymenl The lease ree shall be remitted annually to IIle Division or State Lands as the asent ror the Lessor, beginning willI the erreclive and due date or this le:ISC renewal, and cac:b YC:ll' thereafter unlilthe tenn or this lease renewal tenninates or expires. [01] t-:' .' ," " :. '; " '. : ' '.' ", .. ", ,. '. I 1- I I I I I I I I I I I I I I I I I 3, WET SLIP ReITAL CERnFICAnONISUPPLEMEm'AL I'A YMEm': TIle Lessee shall provide upon ~ueSt by Lie Lessor any and all information in a certified form needed to calculate the 1= fee specified in p=graph two (2) above, ineluding wet slip renlal informOl!ion,.i( appliCOlble. In addition, i(the wet slip rcnbl rates chanse during the year, the Lessee shalt submit a revised nte sclledule within 30 days following tile c(reetivc dOlte ofllle nle chanse. The Lessor reserves the risht to assess retrOOlctively additional paymcnts when tile actual renbl rates or lobI number o(linear feet for rent used to determine the :lnnual p"ymcnt dirrers from the renlal nIcs or tobl number ortinear feet for rent supplied by the Lessee. 4. LATE FEE ASSESSMENTS: The Lessee shall pay a laIc cllarge equal 10 inlerest at the nte of twelve percent (12%) per annum (rom Ihe due date unlil paid on any le3Se fees due hereunder which are not paid willI in 30 days of Illeir due dates. S. EXAMINA nON or- LESSEE'S RECORDS: For purposes o(this le3Se renew.,I, the Lessor is hereby speeifie:lIly aulllorized :lnd empowered 10 examine, for the lerm o(this 1= renewal including any exlensions tllereto plus three (3) additional YCOIrs, at all re3Sonable 110urs, the books, records, contracts, and oilIer documents confirming and p~.;Jining to the eompubtion o( annualle3$C payments as specified in pangnph two (2) above. ' 6. MAINTENANCE OF LESSEE'S RECORDS: TIle Lesscc shall secure, maintain, and keep all records for the entire term "flllis Ic:\'ic ren:wJI, plus Lire: (3) ~c!ditio;;:\l years. 11:is period shall b,; cxtcndec for an ~;!J::ioila( two (2) i'cars ujlon request for examination o( all records and accounts for lease payment vcrific::tion purposes by the Lc.s.sor. 7. AGREEMENT TO EXTENT Or- USE: TIlLs 1= renewal is given to the Lc.s.see to use or occupy the leased premises only for those purposes specified herein. The Lessee shalt no~ alter the approved use of the sovereignty lands or tile type of use of the riparian uplands (e.g., commereial to multi.family residcntial) without first obbinins the Lessoe's written authorization in the form o( a modified lease and the payment of additional fees, if applicable, and the removal of that portion of thc original structures which a.-c no longer authorized under the modified Iwe. 8. PROPERTY RIGHTS: TIle Lessee shall make no claim of tide or interest to said bnc!s hereinbefore described by rcason of the occupancy or use thereof, and all title and interest to said !.'\IId hereinbefore described is ves:ed in the Lessor. 9, INTEREST IN RIPARIAN UPLAND PROPERTY: During tile term of this le:l.SC renew:ll, the Lessee sh~1I maintain a le3Schold or fee simple title interest in the riparian upl:lnd property and if such interest is tenninated. the IQSc may be terminated :It the ppt[on of the Lessor. Prior to sale anc!lor terrninationofthe Lesscc's lc.1Sehold or fee simple lide interest in the upland property, Lessee shall inform any potential buyer or ~feree onbe Lessee's upl:lnd property in:e:-cs: of the existence of this Ic.1SC rene\V~1 and all its terms and conditions and shall complete and execute any documents requir-...d by the Lessor to effect an :!SSignment of this lease renew:!I, ifconsented to by the Lessor. Failure to do so will not relieve Lie Lessee from responsibility for full eompli:!nce with the terms and conditions of this le:lSe renewal which include, but are not limited 10, payment of all fees ancllor pen:!lty assessments incurred prior to such :leI. ~.. ;: .:~..;~_.:-:~-~~~ = ~--;-:-'.-.:- 10. ASSIGNMENT OF LEASE RENEWAL: This lease'rencw:l1 sh.1I1 not be assigned or otherwise transferred , without prior written consent o(the Lessor or its duly authorized agen.1. Such assignment or other transfer shall be subject to the lenns, conditions and provisions o( man~gement slandards and applicable I:!ws, rules and regul~tions in erreet at that time. Any assignment or odler lransfer without prior written consent of the Lessor shall be null141d void and withoulleg~1 crrecl. I I. INDEMNIr-ICA TIONIlNVr~IGA TION OF ALL CLA IMS: The Lessee shall investigate all claims of eveI)' n~ture arising out of this lease:lt its expense, and shall indemnify, defend and save and hold harmless the Lessor and the State of Florid,~ from all cl:lims,.aetions, I:lwsuits and demands arising out oftllis lease renew:ll. 12. VENUE: Lessee w:livcs venue as to any litigation arising from matters relating to this leasc renewal and any such litigation between Lessor and Lessee sl1:1l1 be initiated and maintained only in Leon County, Floridil. N M M rf ~ t:) 0( A. . Page.1.. of -L Pages Sovereignty Submerj;ed Lands Lease No, 030000095 .0 rf It) rf :;: o o CQ p: o :"; ::. :::. :;. :: . r i~. ,: {;'. .:. . ,. ~~: -'. " ;. .' f. ," o. I I' I I I I I I I I' I, I I I I I I I I . , 13. NOTICESlCOMPLTANCElrERMTNA nON: The Lessee binds itself, its successors and assisns, to abide by the provisions llIld conditions herein set forth, and said provisions llIld conditions shall be deemed covenllllts of the Lessee, it successors and assisns. In the event the Lessee fails or refuses 10 comply wiih the provisions llIld conditions herein set forth, or in Ih: event the Lessee violates any of dIe provisions llIld conditions herein, or fails or relUses to comply with the provisions and conditions herein set forth within 20 days of receipt of dIe Lessor's notice to correct, this Ic;ue renew:ll may be lenninated by dIe Lessor upon dtirty (30) days wriuen notice to. Lessee. Ifcancelcd, all of the above-describcd parcel orllllld shall revert 10 the Lessor. All costs llIld attorneys' fees incurred by the Lessor 10 enforce the provisions of this lease shall be p:lid by the Lessee, All notices required to be given lo the Lessee by this lease renewal or applic:lble law or administrative rules shall be sufficient ifsent by U.S. Mail to the following address: . City ofPunb Gorda , 326 West Marion Avenue : ' Punr~ Gorda, Florida 33950 The Lessee shall notify the Lessor by certified mail of any ch~ge 10 this address at lcast ten (10) days belore rhe cllange is effective. 14, TAXES AND ASSESSMENTS: The'Lessee sh:dlassume allr-.sponsibility for liabilities dlat accrue io the subject property or to the improvements thereon, including lInyand all drainage or special asswments or ta."(:s of every kind and. description which arc now or mllY be herellflcr lawfully assessed and levied against the subject property during the effective period orthis lease renew:d, ' : IS, NUISANCES OR ILLEGAL OPERA nONS: The Lessee shall not permit the lcased premises or any part thereofto be used or occupied for any purpose or business other thlln herein specified unless such proposed use a..,d occupancy arc consented 10 by dIe Lessor and the lease is modified aceordin:;ly, 'l1ur shaii Lessee knowin:;l)' permit IJr SUrr(r lIll)' nui::ances or ilIegal,oper.ttions of lIny kind on the lcased premises. ' 16. MAINTENANCE OF FACILl1Y /RIGHT TO TNSPECT: The Lesseesltall mOlinbin the leased premises in good condition, keeping Ille structures :md equipment 10c:lted thereon in a good sbte ofrep;tir in the interests of public hc::lltll, safety and welfOlre, 111e leased premiscs sh:l!l be subject to inspection by Ihe Lessor or its dcsignOlted asent lit any reasonable: lime.. . . . - '. :,... ", ~:~ ;:* t ", ;..' ". " .... .. ..-.. ~:: ,,' .., . ' " ,", " .c .' :.. :: ': ~ 17, NON-DISCRIMINATION: The Lessee shall not diseriminOl:e against :l.,y individual becOluse of that individual's COIce, color. religion, sex, national origin, age. handic:lp. or maribl status with respect to any activity occurring wilhin Ille Mea subject 10 this lC<!.Se renewOlI or upon lands adjacent to and used as an adjuncI of the leased arc:\, During the: leasc term, the Lesse:e shall post and mainlain tile plaeMd furnished to the: Lessee by tile in II prominent and visible location on Ille lcased premises or adjacent business office orthe Lessee. It shOlll bc the responsibility orllle Lessee 10 post the placard in a manner which will :' provide protection from the clements, and. in the event thOlt SOlid pla?~d becomcs illegible lit any time during the: tcnn orthi.s ,lease: ~ _--',-::-f'-',~~-.::..:. _ , renewOlI (including any exlensions Illereol), to notify the Lessor in wriling. so thOlt:z replaeemcnt may be pr?vidcd. IS. ENFORCEMENT OF PROVISIONS: No failure, or successive failures, on IllC part of dIe Lessor to enforce any provision, nor any waiver or successive w:livers on its part ofllllY provision herein, shall operate as a disehOlll;e Illcreof or render L'1e samc inoperative or impOlir Ihe risht ofllle Lessor to cnforee Ille saine upon any rcnew:lllllercof or ill the evenl of subsequent brClleh or breaches. 19. PERMISSION GRANTED: Upon expiration or canecllOltion orthis lease renewal all permission granted hereunder shall cease Olnd lenninalc. M M M rl W CI 0( Po Page -L of -2... Pages , Sovereignty Submersed Lands Lease No, 080000095 \0 rl It) rl X o o ~ c: o :., .' . ., '.' I I I I I I I I I I I. I I. I I I I I I 20. RENEWAL PROVISIONS; Renewal oftbis lcase shall be at the sole option orthe Lessor. Such renewal shall be subjcc! to IIle terms, conditions lInd provisions of mllnagement standOU'ds lInd applicable laws, rules a.,d regulations In effect at that time. In the event that Lessce is in Cu!1 compliance with the terms of this lease renewa~ the Lessee may apply In writing for a . renewal. Such IIpplication for renewal must be received by Lessor no sooner th:ll\ 120 ~ys IInd no latcr than 30 days prior to the expiration date of the original or current term hereor. The term ot any renewal gl':ll\led by tile Lessor shalt commence on the 1000t day of the previous ICOISe tenn. If the Lessee tails to timely apply tor a renewal, or in the event the Lessor does not gr.IlIta renewal, tile Lessee shall vacate IIle /cased premises and remove all structures and equipment occupying and erected thereon at its expense. The obligation to remove all structures authorized herein upon termination of III is lease renewal shall constitute an art"umative coven:ll\t upon the ripllri:lll uplllnd property more specifically described in the Ai~pace LCOISe Agreement between !oie Florida Department otTransporation and 1I1e City ot Punta Oorda dated April 6, 1995, the Lc:asc Agreement between the Community Development Agency of the City ot Punta Oorda, Florida, a.1d 1I1e City ot Punta Oorda, Florid3, a municipal corporation, dated November 6, 19%, lIlId the Board ofTrustccs otllle Internal Improvement Trust Fund otthe State of Flori~ Dedication to the City ot Punta Oorda, Florida, a municipal cotpOr3tion, dated July 2, 1973, which arc herein incotpOr3ted by reference, which shall run with the title to S3id riparian upland property,lIlId sl1:1I1 be binding upon Lessee and Lessee's sUcccsso~ in tille or successo~ In interest. . 21. REMOVAL OF STRUCTUREs/ADMINISTRATIVE FINES: If the Lessee does not rcmove said structures and equipment occupying and erected upon the ICOISed premises aner expir3tion or C3l\cellation or this lease renewal, sueh structures and equipment will be dcemed forfeited to the Lessor, and 1I1e Lessor may authorize removal and may sell such forfeitcd structures and equ ipment aner ten (10) days written notice by certificd mail addressed to the Lessee at the address specified in Paragraph 13 or at such address on record a.s provided to the Lessor by the Lessee. However, such remedy shall be in addition to all olher remedies 3vailable to the Lessor under applicable laws, rules 3nd reguJ3tions Including the right to compel removal or all Structures and the right to impose administrative fines. 21. REMOVAL COSTS/LIEN ON RIPARIAN UPi.A,l'~D I'ROPERTY: Any cos:s incurred by tll': Lcuor in the removal ofllnY Structures and equipment constructed or m3int3incd C?n s:ale lands shall be paid by the Lessee and any unp;lid costs and e:(penses shall constitute a lien upon the interest orllle Lessee in its ripari:ll\ uplomd property enforceable in summlll)' proceedings as provided .by Law. .23. RECORDATION OF LEASE: The Lessee, at its own expense, shall record this fully executed lease renewal in its entirety in the public records of the county willtin which the lC3Se site is located within fourteen (14) days aner receipt. and shall provicte to.the Lessor within ten (10) clays following the recordation a copy or the recorded lease in its entirety which conrains IIle O.ll book and pages at which the Ica.se is recorded. 24. RIPARIAN RIOI-ITS/r-INAL ADJUDICATION: In the evcnt Ih:lt any part ofllny structure authorized hereunder is determined by a final adjudication issued by a eourt of competent jurisdiction to encroach on or inlcrfere with adjac:c:nt riparian rights, Lessee agrees to either obtain written consent for the oITending structurc from 1I1e arTecled riparian owner or to remove the interference or eneroachment wiihin GO days from the d3te of tile adjudi~lion. Failure to comply with this p:lragraph shall constitule a material breach orlllis lease renewal agreement llnd sh:lll be grounds for immediate termination of III is lC3Se renewal IIsreement at the option of the Lessor. 25. AMENDMENTSIMODlfolCA TIONS: TItis 1<:'1Se renewal is the entire and only agreement between tile p3rties. Its provisions are not severable. Any amendment or modification to this lea.se renewal must be in writin::, must be ac:c:epted, acknowledged and executed by IIle Lessee llnd Lessor, lInd must comply with the rules and slatutes in existence at the time orthe execution of the modification or amendment. Notwithstanding the provisions of IIlis paragraph, if mooring is aulllorized by chis lease,II1e Lessee may instllll bOlltlins willlin the lea.sed premises willlout formal modification ofllle lea.se provided that (a) che Lessce Oblail!S any state or 10cO\I regulatory permit that m:lY be required; and (b) the location or size orlhe lin docs not incrC3Se the mooring capacity of the facility. "" M M ri rot C) os: p., Page...i. of...2... P3ges Sovereignty Submerged Lands Lc:a.se No. 080000095 10 ri III ri :.: 8 ~ cz: o '. ,. . .' .'. ;.. ~.'l : . .; "- eo._ :!. '. I. , ~:: . ;~ . ~. . '. . . " .. .. : ,. .; .0. , '.' .' I I I I I I I I I I I I I I I I' I I I '26. DVERTIS'MENTISION ON-WA'R 0 'PENDENT A VITIES/ DOmONAL ACTIVm . INO STRUCTURAL REPAIRS: No pcnnanenl or temporary,signs directeclto the boati.,g public advertising the sale otalcoholic bever:lges shall be erected or placed "'rithln the leased area. No restiUr:lnt or dining activities are to occur within the lc:J.Sedarea. Thc Lessee shall ensure that no pcnnanenl, tempor:ll)' or nontlng structures, fences, docks, pilin~ or any struel'.Ires whose use is not WlIter-depcndent shall be erected or conducted over sovereignly submersed lands without prior written consent from tile Lessor. No additional structures and/or activities Including dredging. reloc:ationln:alignment or major repairs or renovations to authorized structures, shall be erected or conducted on or over sovereignly, submerged lands without prior wriuen consent frem tile ~or. Unless specifically authorized In writing by tile Lessor, such activities or structures shall be considered unauthorized llI\d a violation of Chapter 253, Florida Statutes. llI\d shall subject tile Lessee to administrative fines under ~pter 18-14, Florida AdminisCr:ltive Code. nlis condition does not apply 10 minor structur1ll repairs required to maintain the authorized structures In a goOd state of repair in the Interests of public health, safcly or welfare; provided, howC\'er, that such activities shall not exceed the activities authorized by tlli~ agreement. . 27. SPECIAL LEASECONOmON: . 'll. Lessee hcreby agrees to ensure that no midwater mooring will be allowed within the basin except as a sare harbor dLliing a storm event or for special events such as "Armed Services Day" to allow public access to large boats. b, Lessee hereby understands that no additional structures may be placed within the lease area WicIloUt additional consent from the Lessor. Additionally, Lessee agrees th111 no rental fees shall be lISSess ror the use of any other area within the lease area. e. Lessee shall maintain ror the term orthis leasc and any subsequent renewl1l periods, the manatee infonnl1tionlll displl1Y and "!anatee awareness signs. _. __ ' 111 CO') CO') rf tot C) < 11. . . - .. . .. ---.........- --~ - '. . .. -.. _.- -. . Page..L 0'-..2... Pages Sovereignty Submcrged Lands Lcl1sc No. 080000095 .; ~' " \ I " \0 rf 111 rf ~ o o rQ &l:: o " ;. . " " '" ~{ ,', ;.. ::. ~;. .:~. " :.: ...:. ;-:. ", ~:.. r. " ~. " . .._.---. ',' I I I I I I I I I I I I I I I I I I I ~4~,~k~ rigma 'ignature ' . . 1'-1/1 ,. ~, _ ,.......,. . K I ~'?' ~''''"'' N'm' .'Wi.... - . ~~~~ "(S' - ~ nglna Ignature . })~~;A L..i!"C,C,..,,'x TypcdIPrintcd Name ofWitnc:ss . STATEOF . F / LP",,.I,, COLTN1Y OF t' W ff r I &--rf. ~ . ~:r-! , The foregoing instrument w~ lleknowledged before me this day of Glenn A, rrnzee ~ Mavor. for nnd on bchlllfoflhe Cit ofPunla Gorda n muniei III or who ,,~ produeed , as idcntitie..tion. WITNESSES: &di, ePf= Original Signllluro . fL,ilL ~,IA 'If~rJ TypedlPrinted Nouno ofWitnc:ss ~~~ Original Sign..turc ::DOf' i ~ -1/ f;ro Cd Ji T)'pedIPrinted Noune ofWitnc:ss WITNESSES: My Commission Expires: \0 M M .... W Cl J( Po. CommissionlSeri..l No. \0 .... 111 .... Page J.... of...2.... P..ges Sovereignty Submerged Land Lease No. 0110000095 :.: o o era p: o DOARD OF nUSTEES OF THE INTERNAL IMPROXEMENT TRUST FUND OF TIm STATE OF FLORIDA (SEAL) "LESSOR." 19$)' No Printed, Typed or Stamped" ,"'.. ~. LElGHO'SIlIE My Commission Expires: j.lA''t) !.IY COM.\!:SSlOH I c: 4la32O, , ~~.il . EXl'&s: ~U7, 1m , ~,.d0nd04'nrvlloCllyI'lQ6:Ik~'11 CommissionlScrial No, SEAt . :-". -..:---.- ~ -- ~ -". Mnvor IIlle of Executing Authority "LESSEE" 19~by oralion. He is ~ on..lly known to me , .. ~ . ~~~~~~~ Nob Publae, Sl..te of ' Printed, Typed or Sbmped Noune DAVID LA CiIOIX IdY CCMloaSSIOH I CClI!814 ElCPlRES . HCMIIlbII t, 1M ICIClQ IIf'lIIIlll'f IUI HlUWa, IIC. :' ~i~ " " " '. :' i..~. ~~.: . " f: ..: :: , ' '. " ..0:0 .:' ", '~ ~; .' " ... " " " I I: I I I I I I I I I I I I I I I I I '. . e.. ~"""'h. ........ ,..r'"UIl tJr "')U::l.-":'I\U~ ~~ ':"':'-'':'-:-_-;:::--:-;-:. . -:--. ,.~: . SHLEY ?AlU::' ,.,.ARlHA .:~. -:-.:.. ~~~=.-"'~..:.:.:!...:: - "'."::;" "_.::'- ITY F 0 IDA , -::Z:-:::.:...:.:.._, _. .' . C OF PUHTA GORDA. Lit. _.: .- J. _':-"'.'" -. '... .... "';... . - =A..:.04rc~l.:oC:.Jand. lying In Sectlon.6.To....nshlp.(1 South,. Range..2J !4st, Charlotte . :County.' FlorIda, beIng more speclflcalJy descrIbed u follolls: .. -." . . . . .----. - . ... ,:';roo.'the'.lntersection'of 'the centerJJnes of Marlon Avenue and Nesbit Street as shown In''Plat.800k.1, p.age I, of. the PublIc Records.of Charlotte County, Florida, run 'Nor.t.h ,~2-DO'DO" -Uest along the centerUne of saId NesbIt Street a distance of 483.62 i~et'~o~e'jn~ersectlon wIth ~he centerlIne of Rett! Esplanade Avenue; thence :'JIorth :52-15'.33" Uest .a.dls~ance .of ~eS.65. feet "to a drill hole In the seawall cap at .'Lalshley Park Harlna said drill hole also beIng the Point of BeginnIng: . ., .J . . Thence South'. 4 1-40'08" ~est along the sea....alJ. a dIstance of BO.54 feet to the edge of 'the sea....all.and 'the start of safe upland boundary line (1.6'foot elevation H.G.V.D.): ~hence'meandering along the safe upland boundary line 'the follo....lng descrIbed courses: , South ~4-38' 13" E!st'a dist~nce of 5.66 feet; thence South 04029'13" Yest ~ dis~ance of 11.91 feet: thence South 18032'21" Uest a dist~nce Dr 17.57 feet: thence South 32040'510 West a distance Df 23.75 feet; thence South J~~Z4'09" West ! dist~n~e of 23.83 feet; thence South 33033'52" West ~ distance Df 25.56 reet: thence' South 40057'59" West a distance or 25.36 feet; thence Souyn ~3009'Zo" Uest a dist~nce of 32.07 feet: 'thence South 32055'01" ~est a distance Dr 27.7\ feet: thence South 50032117" West a di stance of 25.45 feet: thence South ~5045' 39" West a ',di stance' of 35.5a f.eet: thence South 45045'50" Yes~ a distance of 32.86 feet: thence South 51043'58" ~est a di~tance of 37.31 feet:.thence South 52000'1:" ~est ~ distance . of 30.83 feet; thence South 56-0\'27" West a distance of 25.83 feet to the ~asterly P.!ght-of-~ay line of U.S. Highway Ho. 41; thence 'Horth 41-57'~2. ~est along said E!ste~ly Right-of-Way line a distance of 548.24 feet to the safe upland boundary line (1.5 foot elevation H.~V_D.): thence meandering ,along the safe upland boundary Jine of the 7011 o,,!i ng descr! bed courses: Horth 210~5'17" E~st a dist~nce'of 5.~8 feet:. t~ence North 01-48'35" East a distance. of Z5.~1 feet: thence North 10-48'20" E!st'a distance of 20.31 feet; thence aeparting the s~fe upl~nd boundary line.Hoith 40-10'30" East a distance of 277.c3 feet.to the ~est side of a conc.ete fishing pi~r: thence Haith 49049'30" ~est ~long the West side of said concrete fishing pier! 'distance of 301.61 fee:: thence NOith 40010'30" East !Iong the NOith side of said fiShing pier. a distance of 12.00 feet: thence Sou'U'1 49049'30" ::ast, along the E!St side of said fist!ing pier a distance of 400.00 fee.: !henc~ South 7504~'17" ~!s" a distance of 14,94 fee. to a point intersecting with a seawall cap: thence Soutt! 3J-2~'~9" ~est' along said seawall cap! dist!nce of iO.g5 feet: thence.South 47-41'33" East along said seawall cap a . distance of 46.47 feet; thence Harth 40050'5<" East along said seawall cap a distance)--:- of 7i.<3 feet: ~hence South 49017'40- E~st ~Iong said seawall cap a distance of ~38.52 feet to the ~oint of 5eginning. c:-n /,,;4 c-.l ;S$M 'li'j- Said submerged lands situate lying and being iil Cnarlotte County, Floiida. --. _..."'-::"~-77.'-:' - - Containing 5.!50 ACies or Z~I.018 square feet. more or less. . L~GAL DESCRiPTION OF BOAT COCKS . ......::: :-. n.:.::..~.._..... LAlSHLEY PAR~ HARINA ' -.._... .:... .: CITY OF PUNTA GORDA, FLORiDA :... I.-;;~': ~A"paicel of land lying in Section 6, Township 41 South. Range 23 E!st. Chailotte County, Florida, b~ing mOie speclffc~lly described es follows: From ~he Intersec~ion of the centerJlnes 'of Mdrlon Avenue and Nesbit Street as shown in Plat Book 1. Page 1. of the Public Records of Charlotte County, Florid!, run Horth~-42000'00" ~es~ along the center! ine or said tlesbit Street a distance of 483.62 feet to the Intersection wIth the centerline of Retta Esplanade Avenue; thence .North 52015'33~ Uest a distance of 685.66 feet to a drfll hole in 'the seawall cap .at Lalshler Park Marina said drill hole also'being the Point or Beginning: . :-- n n -t Thence South 41~40'D8" West along the se~wall cap.a distance of 71.44 feet; .thence Harth 49017'40~ ~est: a distance of 437.59 feet to ~ point Intersecting with a seawall cap: thence Horth 40050'54- East, along said seawall cap. a distance of ,71:43 feet: thence South_49017'40~,E!st. along saId sea....all cap. a distance of 438.62 feet to the Point of Beginning. '. '. Said lands ~ontalning 0.719 Acres. or 31,302 square feet. more or less., Said submerged lands situate. lyIng and being in Charlotte County, Florida. :oJ ~ cC .:l. D -t Il -t Attachment A 5 Page 7 of 9 Pages g SSLL No. 080000095 a: o .... .... -::.' . . ~~.: .... .:- '. '.: . ... :;.. :.0 ..... " '. ',' -:.... - -.. .~.. . '0 .'. '. .' )1- ., . ' \ , .' ~ . . - " . : .- '. J, f; - ..... .... ~ $/ .. . " ..~ I I I I I I I I I I I I I I I I I I I .. ., . -' .' . '.. . -- :-!....:.:::.2~::... .l:.l.~_ :~-:;~_.:-_=.. ... ..-_ . .. r:' ... - ." ,. . ..... ~.I..,.- . ..1 _ -.... .- . .-, ...- --- .-. ........ ------ ----...-.. . . . . . .. . -- . .. " . .. -. --.. . .. .. . ~ --.--,-.--'.---.-..,... -.. , ., UJ J . '-'- I ""~\ - I '!1~ '/. . ... , r ..........( , r > . .z 0. '. -Jh ,J bi ~. ~ ;i~: "" \' ' I" " \ '"'. . : * 1~~ . ~I ":x.. ~!< 0 ~'i~1 '\\\' ~;.;... :. ,- Cot , '- i.~ ";. ~:~ ~ .E1. :~":.....: ." I' . . ==- - ~'- \. . ~?lb.. J' ~\" -~ --'--~:: ' ~. -0' \ 1..l; ~ ~ "\~ l \. ~,~~ .:t~ ",: -::' t>" ~ 0 ::I~'I')tl\II~1 . " "'(\ 1 , ..,.:,I.I:I~::I ._ !;:; I :~: r::i . ~ ~ ..-........'oc o' ~bl.".- I' ~: ,; ':l'!~t : . 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J J s!t; ~;irl i! !;f I; IJ': a!h;r rr J~I I I l"l "h" I, j' "J :rJ~ ':~.r f' I' I .C- "'''I' :r fit . f J..mj E~ rl r1' J J ! l-jT~ J"!lfl'(. .' , r '1, lfir. J J - ;1:1' lr~i1 I ' . .,., 1 ,,- I! .. 1 . r f ':i:llU"':r 'i!H:r.r:r:r.r 11'( llir.' JI- '". ! ,1.1.. ri~u .....,., Je, " I 'f'r',r ~l~r: f~lf~rnlim ,lr "1111 f~ . 1 - · '1' ~'r' ( ....., ........1' 'i ':1.- 11 r i 'rr;:'r'~ril~11! it~l!Iml!r! Jl', hW -If . I' [..~ p'r' I. m-l.h'.,.,. I r r..I~" J r Jj~/Jrllrnl'I:II:'r.'.~m~i~m Ji!ll;Sttrl'U' J I I I J'l ~.I' "I{ .'10"""" f' ., I I ~ ii, 1,"- , .1.""'- I~ ,II r: '" ...: .- "J'. -,.,..- l. ,. I, R~~h!!rfI .I~I:r:r:r:rtI Jr! J~ ; If ,I" Jr ~ 1S~mwr ksrmutur ~ ~j{~ "fr pI: r l........r(,J .a1~.hI ffi' .. IT' r I, . .llr. mo..' ~h.'~.''''1 [! {'" .1J . !'t~Jrtiif tc[!~:r:IU, tc ~fi'J( J' ~ . J~i!nh(~ Jlt'~I~l!Im. If; 1ft,!. f \ ~ . 'PI: :l'1 t/~.I j'f.! ,~L~! I } ~ l'€/: . ~ . 1 ! co M M rt ~ ~ ...:: Po .' .. ~i: In .... ~ · .Attachlllent A o . Page 8 of 9 Pages ~ - SSLL No. 080000095 c: o \ , ~ "" <.' . .... '1: ~ l- . .~ t c D . t - ! f] ~ ~ ~ ~. ( I: t '., , . "-:'p ~ ~. '. . -.c' !( - -: .~ ~ .Q ~ ! . ... )::0' .,' ,'. ~~~ .~ :~.:: :.... " ::. ' " .:;. ..... '. :. ': . .;. . . , , g ~ , . " ',. ., , ' .... .... . ~t :.. -o': ': '. '. -.' ::. ," " " .; I I. I I I I I I I I I I I I I I I I I ! " i I ! " . . , :~. . " ..: :: , ! .' :: ~ ~ ,~ ~ " 'I \ " I. -. ')) A ~ ~ ~ ~ .~ :\0 I 0 '~\ ~;~ \\ L" ~ .. \~ ~ -4. ,- ~L~~ -rl t . f(\ l>. ~j.. ~- ' {T1 j ", - i. ~:\~' . 'rl ~ .... -r ~ Z:~,' < I - .....1, \' roL .'~ ~\ .' ,,~ \ \ ~~ "llJ ~ th . ~ \) ~ k- .~ ~ Ji. ~ ' 11- . ~ ~ ~ ~ 'i ~ ~ ~ " (') f\ r) 'i N ~ ~ ~ ~ "'" ~ ~ ~ ,); 0\ . ~ ~ M .5) M ,.. rC t' r&I CI -< II. \0 rC , i It) rC I OJ ~. ~ ,', . ~. 0) ...... ~ ~ \~. . \---- - \ I .... .... .....--..--- .. . i ~ '< o' f;! ! I ~. \ \ , .c, . ~ . ~ 'l C' .,: .....,7'" '.." , ~'''''''1:''~......, {l t.. . . r~....r I.. Attachment A rage 9 of'9 Pages SSLL No. 080000095 7/. ~3 I I I I I I I I I I I I I I I I I I I EXHIBIT "N" PURCHASE MONEY SECOND MORTGAGE THIS MORTGAGE DEED, executed the day of 199___, by [Name of mortgagor], whose address is: of County, State of , party of the first part, hereinafter called the Mortgagor, to Community Redevelopment Agency of the City of Punta Gorda, Florida, a public body corporate and politic of the State of Florida, whose mailing address is: City Hall, 326 West Marion Avenue, Punta Gorda, of the County of Charlotte, State of Florida, party of the second part, (hereinafter called the "Mortgagee") . The "Mortgagor" and "Mortgagee" \olhenever used in this instrument shall include the heirs, personal representatives, successors and assigns of the respective parties hereto. Wherever used the singular number shall include the plural and the plural the singular, and the use of any gender shall include all genders. WITNESSETH THAT for divers good and valuable considerations, and also in consideration of the aggregate sum of payments to be made by Mortgagor to Mortgagee as purchase money for the tract of land described below, l,olhich payments are described in the Second Amended and Restated Agreement for Development and Disposition of Property dated concerning Parcel "A," and which has been partially assigned to Mortgagee (the partial assignment contains .all of the portions of. the Second Amended and .Restated Agreement for Development and Disposition of Property pertinent to Parcel "A," the below-described property, and is hereinafter "Development Agreement") the said Mortgagor does hereby grant, bargain, sell, alien, remise, release, convey, and confirm unto the said Mortgagee, in fee simple, all the certain tract of land, of which the said Mortgagor is now seized and possessed, and in actual possession situate in Charlotte County, State of Florida, described as follows: [See Attachment "A"] TO HAVE AND TO HOLD the same, together with the tenements, hereditaments and appurtenances, unto the said Mortgagee in fee simple. AND said Mortgagor does covenant with said Mortgagee that said Mortgagor is indefeasibly seized of said land in fee simple; that the said Mortgagor has full power and lawful right to convey said land in fee simple as aforesaid; that said land is free from all encumbrances, excepting only the first mortgage granted to , whose address is I I I I I I I I I I I I I I I I I I I , dated and recorded in Official Records Book Page of th ' . ,e Public Records of Charlotte County,. Florida; Second Amended and Restated Agreement for Development and Disposition of Property dated ; and the Development Agreement; that said Mortgagor will make such further assurances to perfect the fee simple title to said land in said Mortgagee as may reasonably be required; and that said Mortgagor does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever. PROVIDED ALWAYS, that if said Mortgagor shall pay unto the said Mortgagee the sums required by the Development Agreement, a true copy of the pertinent portion of which is Attachment liB II , and shall perform, comply with and abide by each and every the stipulations, agreements, conditions and covenants of said Development Agreement, and of this deed, then this deed and the estate hereby created shall cease and be null and void. AND the said Mortgagor hereby covenants and agrees: 1. To pay all and singular the money payable by virtue of said Development Agreement, and this deed, or either, promptly on the days respectively the same severally corne due. 2. To pay all and singular the taxes, assessments, levies, liabilities, obligations and encumbrances of every nature on said described property each and every, and if the same be not promptly paid the said Mortgagee may at any time pay the same without waiving or affecting the option to foreclose or any right hereunder, and every payment so made shall bear interest from the date thereof at the rate of ten (lO.O%) percent, per annum. 3. To pay all and singular the costs, charges and expenses, including lawyer's fees, reasonably incurred or paid at any time by said Mortgagee because bf the failure on the part of the said Mortgagor to perform, comply with and abide by each and every the stipulations, . conditions and covenants of said Development Agreement and this deed, or either, and every such payment shall bear interest from date at the rate of ten (lO.O%) percent, per annum. 4. To keep the buildings now or hereafter on said land insured in a sum not less than THE FULL INSURABLE VALUE in a company or companies to be approved by said Mortgagee, and the policy or policies held by and payable to said Mortgagee, and in the event any sum of money becomes payable under such policy or policies, the Mortgagee shall have the option to ~eceive and apply the same on account of the indebtedness hereby secured or to permit the Mortgagor to receive and use it, or any part thereof, for other purposes, without thereby waiving or impairing any equity lien or Page 2 I I' I I I I I I I I I I t I I I I I I right under or by virtue of this mortgage, and may place and pay for such insurance or any part thereof, without. waiving or affecting the option to foreclose or any right hereunder, and each and every such payment shall bear interest from date at the rate of ten (10.0%) percent per annum. 5. To permit, commit or suffer no waste, impairment or deterioration of said property or any part thereof. 6. To perform, comply with and abide by each and every the stipulations, agreements, conditions and covenants in said Development Agreement and in this deed set forth. 7. If any of said sums of money herein referred to be not promptly and fully paid within thirty (30) days next after the same severally become due and pa.yablel or if each and eve:cy the stipulations, agreements, conditions and covenants of said Development Agreement and this deed or the first.mortgage, or any of them, are not duly performed, complied with and abided by, the said aggregate sum of the Deve~opment Agreement then remaining unpaid shall become due and payable forthwith or thereafter at the option of the Mortgagee as fully and completely as if the said aggregate sum of $855,000.00 was originally stipulated to be paid on such day, anything in said Development Agreement or herein to the contrary notwithstanding. The mortgagee shall receive a copy of all notices from the First mortgagee and Mortgagor shall require such a notice provision in any mortgage it executes. Mortgagee shall provide notice of default of this mortgage to First and Third mortgagees. .i 8. The Mortgagee may, at any time while a suit is pending to foreclose or to reform this mortgage or to enforce any claims arising hereunder, apply to the court, having jurisdiction thereof for the appointment of a receiver, and such court shall forthwith appoint a receiver of the premises and all other property covered hereby, including all and singular the income, profits, rents, issues and revenues from whatever source derived, and such receiver shall have all the broad and effective functions and powers in anywise entrusted by a court to a receiver and such appointment shall be made by such court as an admitted equity and a matter of absolute right to said Mortgagee, and without reference to the adequacy or' inadequacy of the value of the property mortgaged or to the solvency or insolvency of said Mortgagor or the defendants, and such income, profits, rents, issues and revenues shall be applied by such receiver according to the lien of this mortgage and the practice of such court. 9. Failure by the Mortgagee to exercise any of the rights or options herein provided shall not constitute.a waiver of any rights or options under this mortgage accrued or thereafter accruing. . Page 3 I I I I I I I I I I I I I I I I I I I ~o. The Mortgagee hereby agrees to the Partial Releases provision of Attachment "C". ~~. Mortgagee hereby agrees to and does hereby subordinate this Purchase Money Second Mortgage to the first mortgage lien of subsequent construction financing. for the additional condominiums to be constructed on the property as contemplated in the Development Agreement. ~2. Mortgagee shall J01n in and consent to the Declaration of Condominium for the property, conditioned upon the said Declaration being consistent with and furthering the Development Agreement. IN WITNESS WHEREOF, the said Mortgagor hereunto set his hand and seal the day and year first above written. Signed, Sealed and Delivered in our presence: (First Witness) [Name of mortgagor] Typed/printed name of witness (Second i'1itness) Typed/printed name of witness STATE OF FLORIDA COUNTY OF CHARLOTTE who The foregoing day of is personally , produced instrument \olas acknowledged before , ~997 .by known to me or who has as identification. me this Notary Public My Commission Expires: C:\word\gayle\jun\walt-2nd.pmm. Page 4 I I I I I I I I I I I I I I I I I I I ATTACHMENT C PARTIAL RELEASES Subj ect to the prov~s~ons set forth herein, Mortgagor may apply for and shall receive from Mortgagee partial releases of the mortgage encumbering the Property. Mortgagee shall not be obligated to execute and deliver any partial release unless and until the following conditions are satisfied: 1. . There shall be existing no default by Mortgagor under the Development Agreement or the Purchase Money Second Mortgage. 2. The building in which the condominium unit being released is located has been completed. 3. Mortgagee shall have received as repayment the sum for the condominium unit to be released indicated in the following schedule: Eleven Thousand Seven Hundred Fifty Dollars ($11,750) per each of the twenty (20) condominium units in the most Southerly building to be constructed on Parcel "A;" Eleven Thousand Seven Hundred Fifty Dollars ($11,750) for the first ten (10) units and Sixteen Thousand Seven Hundred Fifty Dollars ($16,750) for the second ten (10) units in the middle building to be constructed on Parcel "A;" and Sixteen Thousand Seven Hundred Fifty Dollars ($16,750) per condominium unit in the most Northerly building to be constructed on Parcel "A;" all payable at the closing of each individual unit. C:\word\gayLe\jun\dev-swfL.Btc I I I I I I I I I I ., I I I I I I I I --.;. ....- EXHIBIT uNll . ." HAINTEffANce RZIKaURSEHEnT SCHEDtiLE (Color References Are Described Below) .Clt~ Developer Maintenance Blue Pink-Green l?drk "Nesbit Street Landscape* 82\ 45% 82\ 93'& 18' 55% 18\ 7% . , Repairs Blue 'pink-Green Park 100\ 45' !OO~ O~ SSt 0\ Electricity: Blue , P.1nR-Green'.,. , Park: Nesbit Street* 100\ 63% 1'00.' 0%' 37% 0% Il'1::7urc::nce Blue Pin~-Green Park Nesbit street* 100~ 63\ 100\ 0% 37% O~ ~The cost of maintaining the Nesbit Street landscape shall be shBred by the Developer and the City or Agency, with the Developer maintaining the landscapi~g and the City or the Agency reimbursing the Developer for its share of the costs. Repair6, electricity and insurance shall be the responsibility of the City or Agency with no Developer participation. ._~~ . .' f, . o..? - : \i" \\,\ ," " . ... .,.- I I I " I I I I I I I I ,I I :1 " I II I i. Blue:' Parcel IK-1" and that portion of Parcel "K" containing the Pqblic Pedestrian Wal~way and Bikepath extending froIil.Parcel "K-l" and around Parcels "A" and "A-l" to where the walkw'axlbikepath connects to the Seawall east of Parcel 'liE. II ' . Pink-Green:: Parcel ilK" containing the Public Pedestrian Walkway and "Bikepath beginning from a point where the walkway.leaves the water's edge east of Parcel "E" and then running west 'on Parcel "E~" the Retail proj ect, . Parcel "e" along the water's edge, and then to the state DOT right-of- way adjacent t~ the Project site. , .. " -I · , I I I I II I I I I I I J I I I I I RESOLUTION NO. 2009-97 A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PUNTA GORDA, FLORIDA, APPROVING A SECOND AMENDED AND RESTATED AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY WITH WALTEMATH INTERESTS; INC.; AUTHORIZ ING THE CHAIR TO EXECUTE SAME; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Community Redevelopment Agency of the City of Punta Gorda, Florida (hereinafter, "CRA"), has previously entered into an agreement with Waltemath Interests, Inc.~ for the disposi tion and development of property located in Punta Gorda (known as the Waterfront Project) and has previously approved an amended and restated agreement; and WHEREAS, the CRA desires to enter into a further amended and restated agreement with Waltemath Interests, Inc., so as to clarify various provisions of the previously approved agreement and amended agreement and so as to provide for additional parkland in the Waterfront Project and to compensate Waltemath Interests, Inc., for agreeing to relinquish development rights to the land which is to become additional parkland; NOW, THEREFORE, be it RESOLVED by the CRA that: 1. The Second Amended and Restated Agreement for Development and Disposition of Property, between the CRA and Walternath Interests, Inc., a copy of which is attached hereto as "Exhibit 1," is hereby approved, and the Chair of the CRA is hereby authorized to execute same on behalf of the CRA, provided the disposition of the various parcels included within the Waterfront Project is first approved by the City Council of the City of Punta Gorda. 1 I I I I I I I I I I !I I '-~t., I I I 4 a- S I I I I 2. This Resolution shall take effect immediately upon its adoption. ADOPTED at a regular meeting of the Community Redevelopment Agency of the City of Punta Gorda, Florida, this 16th day of July , 1997. ~ -;;;:~ William F. Richards, CRA Chair ATTEST: fo~ ~~~ Ellen Diomedes, Clerk to CRA Approved as to Form: ~~~:Z:;;-~_ .;, David La Croix, Attorney for CRA /~b/9 "7 Date' 2 I. I I I I I I I I I I I I I I I I I I . ,.. 7/7/97 DRAFT SECOND AMENDED AND RESTATED AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY (Waterfront Project) between COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PUNTA GORDA, FLORIDA, and WALTEMATH INTERESTS, INC. Originally Dated as of March 7, 1990 and Amended and Restated as of October 4, 1995 Second Amendment and Restatement as of Exhibit 1 I- I I I I ,I I I I I I I I I I I ~I II II SECOND AMENDED AND RESTATED AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY (WATERFRONT PROJECT) TABLE OF CONTENTS ARTICLE 1. DEFINITIONS . . . . . . . . . . . . . . . . . . 2 1.01 . Definltions . . . . . . . . . . . . . . . . 2 (1 ) "Act" . . . . . . . . . . . . . . . . 2 (2 ) "Agency" . . . . . . . . . . . . . . . . 2 (3) "Agreement" . . . . . . . . . . . 3 (4 ) "Agreement Expiration Certificate . . . . 3 (5) "Agreement Termination Certificate" . 3 (6 ) "Area" . . . . . . . . . . . . . . . . 3 (7 ) "Authorized Representative" . . . . . . . 3 (8 ) "Building Permit" . . . . . . . . . . 3 (9 ) "City" - 3 . . . . . . . . . . . . . . . (10) "City Council" . . . . . . . . . 3 (11) "Closing Date" . . . . . . . . . . . . . 3 (12) "Commencement Date" . . . . . . . . . . . 3 (13) "Commercial Project" . . . . . . . . . . 4 (14) "Completion Date" . . . . . . . . . . . . 4 (15) "Construction Completion Certificate" 4 (16) "Construction Financing" . . . . . . . . 4 (17) "Construction Lender" . . . . . . . . 4 (18) "Contractor" . . . . . . . . . . . . . . 4 (19) "County . . . . . . . . . . . 4 (20) "County Judicial Center Project . . . 4 (21 ) "County Judicial Center Site 4 (22) "Developer" . . . . . . . . . . . 5 (23) "DRI" . . . . . . . . . . . . . . 5 (24) "Exhibits" . . . . . . . . . . . . . 5 (25) "Existing Submerged Lands Lease" 5 (26) "Expiration Date" 5 (27) "Interlocal Agreement" . . . . . . . . . 5 (28) "Lease" . . . . . . . . . . . . . . . . . 5 (29) "Lease Commencement Date" . . . . 6 (30) "Marina Project" . . . . . . . . . . 6 (31) "Marina Project Permit" . . . . . . . . . 6 (32) "Nesbit Street Improvements" 6 (33) "New Submerged Lands Lease" . . . . . 6 (34) "Notice of Intention to Purchase [Lease]" . . . . . . . . . . . . . . . . 6 (35) "Office Project" . . . . . . . . . . . 6 (36) "Original Effective Date" . . . . . . . . 6 (37) "Parcel" . . . . . . . . . . . . . . 6 (38) "Parcel Plan" . . . . . . . . . . . . . . 7 (39) "Park" . . . . . . . . . . . . . . . . . 7 7/7/97 DRAFT I I 3.05 3.06 3.07 I ARTICLE 4. 4.01 I 4.02 4.03 4.04 I 4.05 ARTICLE 5. I 5.01 5.02 I ARTICLE 6. 6.01 6.02 I 6.03 6.04 I 6.05 6.06 I 6.07 ARTICLE 7. 7.01 I 7.02 7.03 7.04 I 7.05 7.06 7.07 I 7.08 7.09 I ARTICLE 8. 8.01 8.02 I 8.03 8.04 8.05 I 8.06 8.07 8.08 I ARTICLE 9. 9.01 I 7/7/97 DRAFT I Concurrency . . . . . . . . . . . . . . . Not a Development Order or Permit Subdivision Plat. ........... PLANS AND SPECIFICATIONS .. ........ Revised Site Plan . . . . . . . . . . . Preparation of Plans and Specifications Agency Review of Plans and Specifications . . . Agency's Scope of Review of Plans and Spec- . ifications . . . . . . . .. ...... Project Ingress and Egress . . . .. .... PUBLIC IMPROVEMENTS PROJECT PLANS, BUDGET AND FINANCING . . . . . . . . . Plans and Specifications . . . . Project Financing . . . . . . . . . . . PROJECT FINANCING . . . . . . . . . . . Construction Financing . .. .... Permanent Financing . . .. ........ Notice of Developer's Default. . . . . . Cure of Developer's Default by Bond Company or Construction Lender . . . . . . . . . . . Construction Lender Not Obligated to Construct . Option to Pay Mortgage Debt or Purchase Project Site . . . . . . . . . . . . . . Agency Cures Developer's Default PROJECT SITE ...... Ownership of the Site . . . Parcels . . . . . . Notice of Intention to Purchase or Lease Title . . . . . . . . . . . . . . . . . . . . . Sale of Parcels to Developer . ....... Lease of Parcels to Developer. ... Developer's Right of Access to the Project Site . . . . . . . . . . . . . . . . . . . . . . Signs .. . . . . . . . . . . . Determining Values of Parcels . . . . . CONSTRUCTION OF THE PROJECT Site Clearance . . . . . . . Construction of the Project Payment of Contractors and Suppliers . . Mechanic's and Materialmen's Liens. . . . . Maintenance and Repairs . . . . .. .... Project Alterations or Improvements ... . Construction Completion Certificate . . . . Agency Not in Privity with Contractors . . . . . PROJECT COORDINATION . Project Coordinator . . . ....... ........... iii 18 19 19 19 19 20 20 21 22 22 22 23 24 24 25 25 26 27 28 29 29 29 29 36 37 38 39 40 41 42 43 43 44 46 46 47 47 47 48 49 49 I I ARTICLE 18. ARBITRATION . . . . . . . . . . . . . . . . 75 18.01 Agreement to Arbitrate . . . . . . . . . . . 75 18.02 Appointment of Arbitrators . . . . . . . 75 I 18.03 General Procedures . . . . . . . . . 76 18.04 Majority Rule . . . . . . . . . . . 77 18.05 Replacement of Arbitrator . . . . . . . . . 77 18.06 Decision of Arbitrators . . . . . . . . 77 I 18.07 Expense of Arbitration . . . . . . . . . 77 18.08 Accelerated Arbitration . . . . . . . . . . 78 18.09 Applicable Law . . . . . . . . . . . 78 I 18.10 Arbitration Proceedings and Records 78 ARTICLE 19. UNAVOIDABLE DELAY 79 . . . . . . . . . . . I. 19.1 Unavoidable Delay . . . . . . . . . 79 ARTICLE 20. RESTRICTIONS ON USE . . . . . . 81 20.01 Project . . . . . . . . . . . . . . . . 81 I ARTICLE 21. FIRE OR OTHER CASUALTY; CONDEMNATION 81 21.01 Loss or Damage to Project . . . . . . . 81 I 21.02 Partial Loss or Damage to Project . . . 82 21.03 Project Insurance Proceeds . . . . . . . . . 82 21. 04 Notice of Loss or Damage to Project 82 I 21.05 Condemnation of Project or Project Site; Application of Proceeds . . . . . . . . 82 ARTICLE 22. MISCELLANEOUS . . . . . . . . . . . . . 83 I 22.01 Assignments . . . . . . . . . . . . . . 83 22.02 Successors and Assigns . . . . . . . 83 22.03 Notices . . . . . . . . . . . . . . . . 84 I 22.04 Severability . . . . . . . . . . . . 84 22.05 Applicable Law and Construction . . . . 85 22.06 Venue; Submission to Jurisdiction . . . . . 85 I 22.07 Agreement Not a Chapter 86-191, Laws of Florida, Development Agreement . . . . . . . . . 85 22.08 Estoppel Certificates . . . . . . . . . 86 22.09 Complete Agreement; Amendments . . . . . 86 I 22.10 Captions . . . . . . . . . . . . 86 22.11 Holidays . . . . . . . . . . . . 86 22.12 Exhibits . . . . . . . . . . . . . . . . 86 I 22.13 No Brokers . . . . . . . . . 87 22.14 Not an Agent of City or Agency . . . 87 22.15 Memorandum of Development Agreement 87 I 22.16 Public Purpose . . . . . . . . . . . . . . . 87 22.17 No General Obligation . . . . . . . 87 22.18 Technical Amendments; Survey Corrections 87 22.19 Term; Expiration; Certificate . . . . . . . 88 I 22.20 Effective Date . . . . . . . . . . . . . 89 22.21 Approvals Not Unreasonably Withheld 89 22.22 Effect of Amended and Restated Agreement 89 I 22.23 Justice Center Site . . . . . . . . . . . . . . 89 I 7/7/97 DRAFT V I I I I I ,I I I I I I I I I I I, I I 'I I SECOND AMENDED AND RESTATED AGREEMENT FOR DEVELOPMENT AND DISPOSITION OF PROPERTY (Waterfront Project) This Second Amended and Restated Agreement for Development and Disposition of Property (the "Agreement") is made as of this , by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PUNTA GORDA, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency"), and WALTEMATH INTERESTS, INC., a Florida corporation ("Waltemath"). RECITALS: In January 1990, Wa1temath responded to a request for proposals for a waterfront project in Punta Gorda, which the Agency accepted as of February 21, 1990. The Agency accepted the proposal subject to negotiation of an agreement between the Agency and Waltemath pertaining to and setting forth the terms and conditions for the development and operation of the Waterfront project. The Agency and Waltemath entered into and concluded negotiations for a development and disposition agreement setting forth the respective duties and responsibilities of the parties pertaining to the conveyance of the Project Site, including each parcel constituting part of the Project Site and the design, development, construction, completion, operation and maintenance of the Project. Due to certain terms and conditions of the negotiated Agreement and in order to provide for the successful development of the Project, the Agency entered into an interlocal agreement with the city of Punta Gorda, Florida, a Florida municipal corporation (the "City"), dated as of March 7, 1990 (the "Interloca1 Agreement"), providing for the conveyance of the project Site by the City to the Agency and establishing certain other duties, obligations, terms and conditions pertaining to the Agency and the Project. At a duly called public meeting on March 7, 1990, the Agency approved the negotiated Agreement for Development and Disposition of Property and authorized and directed its execution by the appropriate officials of the Agency. The board of directors of Wa1temath approved the said negotiated Agreement for Development and Disposition of Property and authorized and directed its executive officer to execute the Agreement on behalf of Waltemath. 7/7/97 DRAFT