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AGREEMENT FOR DEVELOPMENT AND PURCHASE AND SALE OF PROPERTYAGREEMENT FOR DEVELOPMENT AND PURCHASE AND SALE OF PROPERTY BETWEEN THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA AND PROSPECT PARK DEVELOPMENT, LLC A FLORIDA LIMITED LIABILITY COMPANY ARTICLE 1. Section Section Section ARTICLE 2. Section Section Section Section ARTICLE 3. Section TABLE OF CONTENTS DEFINITIONS..................................................... ............................... . 1.01 Definitions 1.02 Use of Words and Phrases 1.03 Florida Statutes PURPOSE; PROPOSAL.. 2.01 Intent; Purpose of Agreement 2.02 Developer's Proposal...... 2.03 Cooperation of the Parties 2.04 Authorized Representative ........................... •......... LAND USE REGULATION AND RESTRICTIONS ON USE 3.01 Zoning Section 3.02 Section 3.03 Section 3.04 Section 3.05 Section 3.06 Section 3.07 Section 3.08 Redevelopment Plan.... Development of Regional Impact Permits Concurrency Not a Development Order or Permit Permitted Uses......... Mixed Use Project ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS... Section 4.01 Section 4.02 Section 4.03 Section 4.04 Section 4.05 Section 4.06 ARTICLE 5. Section Section Section Section Section ARTICLE 6. Section Section Site Plan Preparation of Project Plans and Specifications Coordination with City Review Agency Review of Plans and Specifications Retail Use Identification and Approval Process Project Schedule...... PROJECT FINANCING 5.01 Construction Financing 5.02 Notice of Developer's Default 5.03 Cure of Developer's Default by Lender 5.04 Construction Lender Not Obligated to Construct 5.05 Agency Cures Developer's Default... ................. PROJECT SITE CONVEYANCE 6.01 Findings; Representations... 6.02 Agreement to Sell and Purchase Section 6.03 Section 6.04 Section 6.05 Section 6.06 Section 6.07 Section 6.08 Section 6.09 Section 6.10 Section 6.11 Section 6.12 Section 6.13 Section 6.14 Section 6.15 Purchase Price /Deposit Site Evaluation Title Survey Rights and Duties of Agency Rights and Duties of Developer Conditions to Closing Closing Closing Procedure Possession Condition of Title..... Taxes and Assessments Covenants, Warranties and Representations ii Section 6.16 Section 6.17 Section 6.18 Section 6.19 Condemnation. Real Estate Commission... Maintenance of Project Site Radon Gas Notice ARTICLE 7. CONSTRUCTION OF THE PROJECT Section 7.01 Section 7.02 Section 7.03 Section 7.04 Section 7.05 Section 7.06 Section 7.07 Section 7.08 Site Clearance and Utility Relocation Construction of the Project.. ..... ............................... Maintenance and Repairs.. Project Alterations or Improvements Completion Certificate............ Agency Not in Privity with Contractors Repurchase of the Project Site Easements ARTICLE 8. INSURANCE Section 8.01 Section 8.02 Section 8.03 ARTICLE 9. Section Section Section ARTICLE 10. Section Section Section Section ARTICLE 11. Section Section Section ARTICLE 12. Insurance Requirements Generally Intentionally Omitted. No Waiver of Sovereign Immunity........ INDEMNIFICATION 9.01 Indemnification by the Developer 9.02 Indemnification by the Agency 9.03 Limitation of Indemnification REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER 10.01 Representations and Warranties..... 10.02 Covenants 10.03 Covenant: Nondiscrimination 10.04 Survival REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE AGENCY 11.01 Representations and Warranties...... 11.02 Covenants......... 11.03 Survival DEFAULT; TERMINATION... Section 12.01 Section 12.02 Section 12.03 Section 12.04 Section 12.05 Section 12.06 Section 12.07 ARTICLE 13. Section ARTICLE 14 Section Section Section Section 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 Remedies UNAVOIDABLE DELAY 13.01 Unavoidable Delay... FIRE OR OTHER CASUALTY; CONDEMNATION... 14.01 Loss or Damage to Project... 14.02 Partial Loss or Damage to Project 14.03 Notice of Loss or Damage to Project... 14.04 Subject to Financing iii ARTICLE 15. MISCELLANEOUS Section 15.01 Assignments Section 15.02 Successors and Assigns Section 15.03 Notices......... Section 15.04 Severability Section 15.05 Applicable Law and Construction Section 15.06 Venue; Submission to Jurisdiction Section 15.07 Agreement Not a Chapter 86 -191, Laws of Florida, Development Agreement Section 15.08 Estoppel Certificates Section 15.09 Complete Agreement; Amendments Section 15.10 Captions... Section 15.11 Holidays Section 15.12 Exhibits... Section 15.13 No Brokers Section 15.14 Not an Agent... Section 15.15 Memorandum of Development Agreement ................ Section 15.16 Public Purpose Section 15.17 No General Obligation... Section 15.18 Technical Amendments; Survey Corrections Section 15.19 Term; Expiration; Certificate... ...... ............ ......... Section 15.20 Effective Date Exhibit "A" Exhibit "B" Exhibit "C" Exhibit "D" Exhibit "E" Exhibit "F" Exhibit "G" Exhibit "H" Exhibit "I" Exhibit "J" Exhibit "K" Exhibit "L" Exhibit "M" Exhibit "N" EXHIBIT LIST Project Site Description and Map Proposed Site Plan Special Warranty Deed Memorandum of Agreement for Development and Purchase and Sale of Property Agreement Expiration Certificate Escrow Agreement Survey Requirements and Certification Intentionally Omitted Intentionally Omitted Intentionally Omitted Park Access Agreement Form of Completion Certificate Correspondence between City of Clearwater and US Environmental Protection Agency Form of Agreement for Restricted Land Use iv AGREEMENT FOR DEVELOPMENT AND PURCHASE AND SALE OF PROPERTY This Agreement for Development and Purchase and Sale of Property ( "Agreement ") is made as of this June 10 , 2014, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida created pursuant to Part III, Chapter 163, Florida Statutes ( "Agency "), and PROSPECT PARK DEVELOPMENT, LLC, a Florida limited liability company ( "Developer "). WITNESSETH: WHEREAS, as of June 18, 2013, pursuant to the Request for Proposals, dated February 19, 2013, the Agency tentatively accepted the proposal of Prospect Real Estate Group, LLC, dated April 2, 2013, in response thereto, subject to negotiation of a definitive agreement governing the terms and conditions of disposition and development of the property owned by the Agency. Prospect Real Estate Group, LLC is a member of Developer, a single purpose entity established to own and develop the property pursuant to the terms and conditions set forth in this Agreement for the development of 257 residential multi - family dwelling units (including 7 live/work units) and between 10,000 to 15,000 square feet of ground floor retail (the "Project ") in the community redevelopment area of the City; WHEREAS, the Agency and Developer proceeded with the preparation of a definitive Development and Purchase and Sale Agreement to set forth the respective duties and responsibilities of the parties pertaining to the conveyance of the Project Site (as hereinafter defined), and the design, development, construction, completion, operation and maintenance of the Project; WHEREAS, the Agency and Developer have entered into and concluded negotiations for said definitive Development and Purchase and Sale Agreement, which negotiations have resulted in this Agreement; WHEREAS, at a duly called public meeting on June 2, 2014 the Agency approved this Agreement and authorized and directed its execution by the appropriate officials of the Agency; WHEREAS, the Developer is a limited liability company organized under the laws of the State of Florida and the members (as that term is defined in the operating agreement of the Developer) of Developer have approved this Agreement and have authorized and directed certain individuals to execute this Agreement on behalf of Developer; and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby agree as follows: ARTICLE 1. DEFINITIONS. 1.01. Definitions. The terms defined in this Article I shall have the following meanings, except as herein otherwise expressly provided: (1) "Act" means the Constitution of the State of Florida; Section 163.01, Florida Statutes, Part III, Chapter 163, Florida Statutes; Chapter 166, Florida Statutes, other applicable provisions of law, and ordinances and resolutions of the City and the Agency implementing them. (2) "Agency" means the Community Redevelopment Agency of the City, as created by Resolution No. 81 -68 of the City, adopted by the City Council on August 6, 1981, including any amendments thereto, and any successors or assigns thereto. (3) "Agreement" means this Agreement for Development and Purchase and Sale of Property, including all exhibits and amendments hereto. (4) "Agreement Expiration Certificate" means the instrument executed by the parties hereto as provided in Section 15.19 certifying that all obligations of the parties hereto have been satisfied and this Agreement has expired in accordance with its terms, the form of which is attached hereto as Exhibit "E." (5) "Agreement Termination Certificate" means the instrument executed by the parties hereto as provided in Section 12.06 stating that this Agreement has been terminated prior to its Expiration Date as provided in Section 12.05. (6) "Allowable Retail Uses" means uses to be identified by the Developer's retail development partner and approved by the Agency. Allowable retail uses may include but not be limited to retail establishments that sell or lease goods and /or services directly to the consumer, including, but not limited to, a book store, gift shop, antique store, florist, clothing store, art gallery, gourmet grocery store, which may include accessory sales of alcoholic beverages and prepared food for off site consumption, kiosk/booth video rental (i.e. red box or similar vendor), a restaurant with accessory sales of alcoholic beverages including beer, wine and liquor, hair and nail salons, pet grooming salons (but not animal boarding), dry cleaners (drop off /pick up only), a bar with a 2 COP license and no amplified out door music and a sidewalk cafe as accessory to the principal retail use. However, Allowable Retail Uses shall not include any uses not permitted by the Plan or the Community Development Code. (7) "Alternative Retail Uses" means tailor or seamstress, financial institution or office (as defined in the Community Development Code), but not medical or veterinary office. (8) "Area" means the area located within the corporate limits of the City having conditions of slum and blight (as those conditions are defined in the Act) as found by the City Council in Resolution No. 81 -67, adopted by the City Council on August 6, 1981 and as amended by Resolution No. 03 -22, adopted by the City Council on May 1, 2003 and as subsequently amended thereafter.. (9) "Authorized Representative" means the person or persons designated and appointed from time to time as such by the Developer or the Agency, respectively, pursuant to Section 2.04. (10) "Building Permit" or "Building Permits" shall mean, for all or any part of the Project to be constructed on the Project Site, any one or more permits issued by the City authorizing, allowing and permitting the commencement, prosecution and completion of construction to the extent provided in said permit(s). (11) "City" means the City of Clearwater, Florida, a Florida municipal corporation, and any successors or assigns thereto. (12) "City Council" means the governing body of the City, by whatever name known or however constituted from time to time. (13) "Closing Date" means the date on which title to the Project Site is conveyed by the Agency to the Developer in accordance with and as contemplated by the provisions of Article 6 hereof. (14) "Commencement Date" means the earlier of: (i) the date of Commencement of Construction or (ii) the date which is twelve (12) months after the effective date of this Development Agreement. (15) "Commencement of Construction" or "Commence Construction" means the commencement of site work, utility relocation, above grade beams, floor slabs or other foundation component on the Project pursuant to a properly issued foundation permit. (16) "Completion Certificate" means the certificate, in a form as set forth in Exhibit "L ", to be executed by Agency and Developer stating that construction of the Project has been substantially completed. (17) "Completion Date" means the date on which construction of the Project is substantially complete as evidenced by a Completion Certificate. 2 (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, including the Developer or any affiliates of the Developer. (19) "Construction Financing" means the funds provided by the Construction Lender to the Developer during the term of this Agreement to pay the cost of developing and constructing the Project, or any portion thereof, on the Project Site, including, but not limited to, acquisition of the Project Site, financing costs, "soft costs," overhead, and the design, construction and equipping of the Project. (20) "Construction Lender" means any person or persons providing the Construction Financing or any portion thereof. (21) "Developer" means Prospect Park Development, LLC, a Florida limited liability company, and any successors and assigns thereof. (22) "Effective Date" means the date determined in accordance with Section 15.20 when the Memorandum of Agreement for Development and Purchase and Sale of Property is recorded and this Agreement becomes effective. (23) Intentionally Omitted. (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) "Expiration Date" means the date on which this Agreement expires, as evidenced by the Agreement Expiration Certificate being recorded in the public records of Pinellas County, Florida, as provided in Section 15.19 hereof. (26) "Impact Fees" means those fees and charges levied and imposed by the City, Pinellas County and any other governmental entity on projects located on the Project Site for certain services impacted by development such as the Project. (27) "Live/Work Units" means units shown on the Site Plan with entrances on Cleveland Street and S. Prospect Avenue which units shall consist of both a commercial /office component, which may be used for Allowable Retail Uses or Alternative Retail Uses, and a residential component, which shall be used as a residential dwelling. (28) "Permits" means all zoning, variances, approvals and consents required to be granted, awarded, issued, or given by any governmental authority in order for construction of the Project, or any part thereof, to commence, continue, be completed or allow occupancy and use, but does not include the Building Permit(s). (29) "Plan" means the community redevelopment plan for the Area, including the Project Site, as adopted by the City Council on September 18, 2003, by enactment of its Ordinance No. 7153 -03, and including any amendments to the Plan. (30) "Project" means the 257 residential multi - family dwelling units, including 7 Live/Work Units, and appurtenant facilities, and up to 15,000 square feet allowable ground floor retail space, to be located on the Project Site as contemplated by the Proposal and this Agreement and constructed substantially in accordance with the Project Plans and Specifications. (31) "Project Plans and Specifications" means the plans and specifications pertaining to the construction, installation and equipping of the Project, including the schedule for completing the Project. (32) "Project Professionals" means any architects, attorneys, brokers, engineers, consultants, planners, 3 construction managers or any other persons, or combination thereof, retained or employed by the Developer in connection with the planning, design, construction, permit applications, completion and opening of the Project, but does not include the Developer. (33) "Project Site" means the tract of land located in the Area which is to be conveyed to the Developer by the Agency on which the Project will be located, as more particularly described and depicted on Exhibit "A. (34) "Proposal" means the proposal for redevelopment of the Project Site, dated April 2, 2013, submitted by the Prospect Real Estate Group, LLC to the Agency in response to the RFP. (35) "RFP" means the Request for Proposals #12 -13 initially published by the Agency on February 19, 2013, soliciting proposals from persons interested in redeveloping the Project Site in accordance with the Act and the Plan. (36) "Site Plan" means the depiction and description of the Project on the Project Site, the initial version of which is attached hereto as Exhibit "B." (37) "Public Amenities Incentive Pool" means the public amenities incentive pool established by the Clearwater Downtown Redevelopment Plan. (38) "Termination Date" means the date on which this Agreement is terminated by any party hereto as provided in Section 12.05, and as evidenced by the Agreement Termination Certificate. (39) "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 13 hereof. (40) "Vertical Construction" means commencement of work on the Project pursuant to a properly issued Building Permit. (41) 'Vertical Construction Date" means the date upon which a permit for construction of a building on the Project Site has been issued. 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 (2013), as amended from time to time. ARTICLE 2. PURPOSE; PROPOSAL. 2.01. Intent; Purpose of Agreement. (a) The purpose of this Agreement is to further the implementation of the Plan by providing for the sale and conveyance of the Project Site to the Developer and the development, construction and operation of the Project thereon in accordance with the Project Plans and Specifications, all to enhance the quality of life, add new residents to the Town Lake Character District, and improve the aesthetic and useful enjoyment of the Area through the eradication of conditions of blight, all in accordance with and in furtherance of the Plan and as authorized by and in accordance with the Act. 4 (2) As provided in this Agreement, the Agency shall undertake certain public actions pursuant to the Act and as implementation of the Plan, including making the Project Site available for redevelopment and assistance in obtaining such approvals by governmental authorities as are necessary for development of the Project. (c) As provided in this Agreement, the Developer shall carry out the redevelopment of the Project Site by obtaining approvals by governmental authorities necessary for development of the Project as more particularly described in Section 3.04 hereof, obtaining the Project Financing, purchasing the Project Site from the Agency, constructing various private improvements on the Project Site, and causing the Project to be developed as described herein. 2.02. Developer's Proposal. (a) The Proposal for the redevelopment of the Project Site, specifically including the acquisition of the Project Site by the Developer from the Agency and the design, construction, equipping, completion and use of the Project, and each component thereof, is hereby found by the Agency and acknowledged by the Developer: (1) to be consistent with and in furtherance of the objectives of the Plan, (2) to conform to the provisions of the Act, (3) to be responsive 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 blight in the Area. The parties recognize and agree that during the process of review and approval provided for in the Agreement the design of the Project may be subject to change and modification as may be either agreed to by the parties or required as provided herein or by the appropriate regulatory authority, and should any changes be necessary or desirable the parties agree that they will act expeditiously and reasonably in reviewing and approving or disapproving any changes or modifications to the Project. (b) Based upon and as a result of the findings set forth in subsection (a) above, the Proposal, including such changes and revisions as are provided by this Agreement, is hereby affirmed by the Developer and approved and accepted by the Agency. (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 hereto, and each agrees that it shall act in a reasonable manner hereunder, provide the other party with complete and updated information from time to time with respect to the conditions such party is responsible for satisfying hereunder and make its good faith reasonable effort to ensure that such cooperation is continuous, the purposes of this Agreement are carried out to the full extent contemplated hereby and the Project is designed, constructed, equipped, completed and operated as provided herein. 2.04. Authorized Representative. (a) Each party shall designate an Authorized Representative to act on its behalf to the extent of the grant of any authority to such representative. Written notice of the designation of such a representative (and any subsequent change in the Authorized Representative) shall be given by the designating party to the other party in writing in accordance with the procedure set forth in Section 15.03 hereof. (b) Except as otherwise expressly provided in this Agreement, whenever approval or action by the Developer or the Agency is required by this Agreement, such action or approval may, in the discretion of the party considering such approval or action, be taken or given by the Authorized Representative thereof. A party to this Agreement may rely upon the representation of the other party's Authorized Representative that such person has the requisite authority to give the approval or take the action being done by that Authorized Representative. A party may not later deny that its Authorized Representative had the authority represented to and relied upon by the other party or revoke or deny any action taken by such Authorized Representative which was relied upon by the other party. (c) The Developer does hereby notify the Agency that its initial Authorized Representatives for the 5 Project are Frank Tetel, Roxanne Amoroso and Mark Filburn. (d) The Agency does hereby notify the Developer that its initial Authorized Representative is Rod Irwin, Executive Director. ARTICLE 3. LAND USE REGULATION AND RESTRICTIONS ON USE. 3.01. Zoning. On the Effective Date, the zoning classification for the Project Site is Downtown, abbreviated as "D." The parties recognize and acknowledge that the zoning classification of the Project Site as of the Effective Date permits residential development of the Project Site of 30 residential dwelling units per acre. The Project Site is approximately 6.4 acres which will currently allow development of 191 residential multi - family dwelling units. Developer shall apply to the City for an allocation of an additional 56 to 69 residential multi - family dwelling units, of which 7 residential units shall be Live -Work Units as shown in Exhibit B (except as provided in Section 3.07(f)), and between 10,000 to 15,000 square feet of retail use from the Public Amenities Incentive Pool, as more particularly described in Section 3.04 hereof. 3.02. Redevelopment Plan. The Agency represents to the Developer and the Developer acknowledges that as of the date of the RFP and the Proposal the provisions of the Plan pertaining to the Project Site are consistent with the Project as contemplated by the Proposal. 3.03. Development of Regional Impact.The parties hereto acknowledge and agree that the Project as contemplated by the Proposal and this Agreement was not and is not as of the Effective Date a "development of regional impact" within the meaning of Section 380.06, Florida Statutes. 3.04. Permits. (a) The Developer shall prepare and submit to the City by no later than three months following the approval of the Development Agreement, (i) a complete and sufficient application for flexible development approval of a comprehensive infill redevelopment project to allow development of the Project in accordance with the Project Plans and Specifications; and (ii) a complete and sufficient public amenities incentive pool use application requesting between 56 and 69 residential multi - family dwelling units and at least 10,000 square feet and no more than 15,000 square feet of retail be allocated to the Project Site from the Public Amenities Incentive Pool (collectively, "Applications "). The Applications are subject to approval by the Clearwater Community Development Board ( "CDB "). The parties acknowledge that the CDB is an independent entity which is not a party to this Agreement and will render its independent decision concerning the Applications. (b) The Developer shall prepare and submit to the appropriate governmental authorities, including the City, by no later than six months following receipt of CDB Approval described in 3.04(a), the applications for each and every Building Permit and any and all necessary Permits for the Project, and shall bear all costs of preparing such applications, applying for and obtaining the Building Permits and Permits including applicable application, inspection, regulatory and Impact Fees or charges pertaining to the Project, including, but not limited to, any Building Permits or Permits, review, application, inspection, regulatory or Impact Fees. (c) The Agency, as the property owner, shall cooperate with the Developer in making the Applications, and the Agency shall cooperate with the Developer in obtaining all necessary Permits and the Building Permits required for the construction and completion of the Project. (d) The Agency's duties, obligations, or responsibilities under any section of this Agreement, specifically including but not limited to this Section 3.04, do not affect the Agency's or the City's right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laws, ordinances, codes or other building or project regulation. (e) Notwithstanding any other provisions of this Agreement, any required permitting, licensing or other regulatory approvals by the Agency or the City shall be subject to the established procedures and requirements of the Agency or the City with respect to review and permitting of a project of a similar or comparable nature, size and scope. In no event shall the Agency or the City, due to any provision of this 6 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) imposes restrictions on development if adequate public improvements are not available concurrently with that development to absorb and handle the demand on public services caused by that development. The City has created and implemented a system for monitoring the effects of development on public services within the City. The Developer recognizes and acknowledges it must satisfy the concurrency requirements of Florida law as applied to the Project. Specifically, the Developer covenants and agrees to comply with the City's land development code, including providing to the City any and all data and analysis that shows the Project will be consistent with the goals, objectives and policies of the comprehensive plan for the City, adopted by the City and in effect on the Effective Date, and the Developer further covenants and agrees to comply with concurrency certification provisions of the City's land development code. (b) The Agency represents and warrants and the Developer acknowledges that as of the Effective Date the Project as contemplated by this Agreement does not require any reservation of capacity or to seek any approvals as a result of the concurrency requirements described in subsection (a). If legally obligated in the future to comply with such requirements, the Developer agrees to seek issuance of a concurrency compliance certificate or other similar document by whatever name known and a reservation of services capacity under the City's concurrency management system, and does further agree to maintain such certificate and reservation. The Developer covenants and agrees with the Agency 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. Permitted Uses. (a) The Project shall consist of no fewer than 225 and not more than 260 residential multi - family dwelling units and approximately 23,000 square feet of associated appurtenances and amenity space. Seven (7) residential multi - family dwelling units fronting on Cleveland St. and Prospect Avenue as identified in Exhibit B shall be mixed use Live/Work Units except as otherwise permitted in §3.07(f), herein. (b) The Project shall contain between 10,000 square feet and 15,000 square feet of Allowable Retail Uses to be located on the first floor. (c) The Developer shall actively market and use its best efforts to obtain tenants for the first floor retail space as one or more of the Allowable Retail Uses. However, should the Developer determine in its sole discretion that it has been unable to obtain satisfactory tenants operating Allowable Retail Uses within one year of issuance of the temporary Certificate of Occupancy for the retail space, the Executive Director shall allow, upon written request of the Developer, one or more Alternative Retail Uses to occupy the first floor retail space. (d) The following uses are prohibited: (1) All uses prohibited by the Clearwater Downtown Redevelopment Plan; (2) All other retail uses not specifically defined herein as Allowable Retail Uses or Alternative Retail Uses, pursuant to the Community Development Code's definition of retail sales and services; (3) Nightclub; (4) Alcoholic beverage package store; (5) Medical or veterinary offices; (e) Developer or any person or entity proposing to use the Project Site for a use not consistent with this 7 Section 3.07, shall file with the Agency a request for a release of part or all of the restrictions imposed by this section. Within thirty days of receipt of such a request, the Agency shall 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 require. Any such release of a restriction shall be evidenced by an amendment to this Development Agreement executed by Agency and the Developer and recorded in the public records of Pinellas County, Florida, the cost of which recording shall be paid by Developer. Nothing in this Section 3.07 is intended to effect or override any law, ordinance, regulation or other legal restriction set forth in this Agreement. (f) Live/Work Units are anticipated to be spaces which combine the residence and retail or office business use of the resident. The uses permitted in the Live/Work Units include any of the Allowable Retail Uses or Alternative Retail Uses. Examples of permitted uses include but are not limited to artist gallery space, architect or accountant offices, and jewelry or clothing retailers. Developer shall coordinate with tenants to provide separation between the "live" and "work" spaces within each unit which is appropriate to each tenants' intended use of its unit. Each Live/work Unit shall be permitted signage for the "Work" use, pursuant to Community Development Code Section 3 -1808, the "Comprehensive Sign Program ". Notwithstanding the foregoing, in the event Developer has made reasonable but unsuccessful efforts for at least one (1) year to lease a Live/Work Unit for its intended live /work purpose, Developer may request approval by the Agency Executive Director to lease such unit solely for residential use. Developer shall submit evidence to the Director of Developer's reasonable efforts to lease the unit for live/work, and the Director shall not unreasonably withhold approval of the use of the unit as residential. Developer agrees that notwithstanding the Director's approval to allow the unit to be leased for residential use, Developer shall continue to market the unit as a Live/Work Unit and, upon the expiration of the residential lease, shall lease the unit for live /work if such a tenant is available and willing to pay rent that is no less than the lowest rent being charged to existing tenants in Live/Work Units or the residential tenants in the Project at the time the unit becomes available. 3.08. Mixed Use Project. The Project is being developed as a mixed use condominium with at least one residential condominium unit (comprised of one or more multi - family dwelling units) and one or more commercial condominium units (comprised of one or more retail /office units) contained within one or more buildings. ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS. 4.01. Site Plan. (a) The Developer has prepared a preliminary Site Plan, a copy of which is attached hereto as Exhibit "B," that contemplates development of the Project consistent with this Agreement. The Developer agrees that during the term of this Agreement any material changes to the preliminary Site Plan or any subsequent versions of the Site Plan will be submitted to the Agency for approval. (b) The Site Plan approved by the Agency shall be the basis for and incorporated into the Project Plans and Specifications. 4.02. Preparation of Project Plans and Specifications. (a) The Developer shall prepare the Project Plans and Specifications in sufficient detail and description of the Project, graphically and narratively if requested, to allow the Agency the opportunity to determine if those plans and specifications are consistent with the Proposal, the Site Plan and the Plan. (b) (1) The Developer is responsible for the cost of preparing, submitting and obtaining approval of the Project Plans and Specifications (2) The Developer has retained and shall retain the Project Professionals to prepare the Project Plans and Specifications, and shall notify the Agency of the names of such Project 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 Project Plans and Specifications. 8 (c) (1) The Agency does hereby consent to the preparation of the Project Plans and Specifications, and any revisions thereto, by the Project Professionals, and the Agency will not withhold approval of the Project 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 responsibility of, and within the sole 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 provide the Project Plans and Specifications to the Agency for review and approval, which approval shall not be unreasonably withheld, prior to submittal of the Applications. The Agency and the Developer recognize and acknowledge the need for expedited review of the Project Plans and Specifications and approval by the Agency. (e) The Project Plans and Specifications contemplated by this subsection (d) shall be sufficient for a determination by the City required by the ordinances and regulations of the City. 4.03. Coordination with City Review. The Developer has represented to the Agency and the Agency acknowledges the need to expedite the process for review of the Project Plans and Specifications and the issuance of any Building Permits and Permits. The Agency agrees to use its best efforts to coordinate and expedite its review of the Project Plans and Specifications with any review or approvals by the City or other governmental entities. 4.04. Agency Review of Project Plans and Specifications. (a) During the term of this Agreement, Agency review and approval of the Project Plans and Specifications is a prerequisite for issuance of the initial Building Permit for construction of the Project, or any part thereof. Rod Irwin, the Executive Director, is hereby delegated by the Agency to review and approve the Project Plans and Specifications for substantial compliance with the Site Plan. (b) Upon the Developer submitting the Project Plans and Specifications to the Agency for review, the Agency agrees to diligently proceed with and complete its review of the Project Plans and Specifications and respond to the Developer as soon as reasonably possible after receipt thereof, but in no event later than fifteen (15) days after receipt of such Project Plans and Specifications, and advise the Developer in writing of the Agency's reasonable objections thereto or that the Project Plans and Specifications have been approved as submitted. (c) If the Agency gives written notice of specific objections to or deficiencies in the Project Plans and Specifications as provided in subsection (b), then the Agency and the Developer shall expeditiously, diligently and reasonably negotiate to resolve such objections. (d) If the Project Plans and Specifications submitted to the Agency by the Developer substantially comply with this Agreement, including being substantially in accordance with the Site Plan, and further the purposes of the Plan, the Agency shall approve the Project Plans and Specifications as submitted, and shall notify the City and other pertinent governmental entities of such approval and recommend the City and such other pertinent governmental entities give such approvals and issue such Permits and Building Permits or licenses as are necessary for development of the Project. (e) if the Developer does not dispute the objections to any proposed Project Plans and Specifications contained in any notice from the Agency, it shall submit revised Project Plans and Specifications satisfying such objections. Any changes in the Project Plans and Specifications made by the Developer in response to such a notice shall be made without charge to the Agency. 4.05 Retail Use Identification and Approval Process. 9 (a) Retail Storyboarding Process. The Developer and the Agency will collaborate to identify additional retail uses other than the Allowable Retail Uses and Alternative Retail Uses for which there is sufficient market demand and which the Agency and the Developer agree should be permitted. The Agency will support applications for amendments to the Community Development Code and /or the Clearwater Downtown Redevelopment Plan to permit such uses, if such use is prohibited by either the Clearwater Downtown Development Plan or the Community Development Code. (b) Retail Development. Developing retail uses in the Project is consistent with the Plan and the Agency recognizes that providing economic support for retail development is necessary for its success. In order to facilitate the development and leasing of retail uses in the Project, the Agency agrees to reimburse the Developer seven hundred thousand dollars ($700,000.00) representing a portion of the impact fees, mobility fees, permitting review fees, water, sewer and fire fees paid to the City of Clearwater (the "Retail Support Funds ") during development. Upon Developer's receipt of a certificate of occupancy for the first retail building constructed on the Project Site, Agency shall deliver fifty percent (50 %) of the Retail Support Funds to the Developer. Upon Developer's receipt of a certificate of occupancy for the second retail building constructed on the Project Site, Agency shall deliver the remaining fifty percent (50 %) of the Retail Support Funds to the Developer. Payment shall be made within thirty (30) days of the date the relevant certificate of occupancy is issued. In addition to the Retail Support Funds, the Developer and retail tenants shall be eligible to apply for all other Agency retail incentive programs to the extent such programs are offered by the Agency. 4.06 Project Schedule. (a) Developer shall submit complete applications for all necessary Permits and Building Permits, as described in Section 3.04(b) hereof, within six (6) months after the date on which the Agency approves the Development Agreement. (b) Developer shall Commence Construction of the Project within twelve (12) months after the date on which the Agency approves the Development Agreement. (c) Developer shall commence Vertical Construction within six (6) months of the Commencement Date. (d) Developer shall have substantially completed construction of the Project in accordance with Section 7.05, within fourteen (14) months after the Commencement Date. ARTICLE 5. PROJECT FINANCING. 5.01. Project Financing. (a) If the Developer elects to obtain Construction Financing, the Developer shall use its reasonable efforts to obtain from each Lender a term sheet for provision of the Construction Financing as soon as is reasonably possible. Upon obtaining such Construction Financing, the Developer shall notify the Agency that it has obtained said financing and provide to the Agency the name and address of the Construction Financing Lender. (b) If permitted by the terms of the construction financing, the Agency shall have an affirmative right, but not an obligation, to cure any default by the Developer under 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 hen or right of any Lender to enforce its rights and remedies under the financing documents pertaining to the Project Financing. (c) The Developer 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 the development and construction of the Project and that such proceeds, together with its own funds or other funds available to it from capital sources shall be sufficient to pay the costs of acquiring the Project Site and the development, construction and completion of the Project. 10 5.02. Notice of Developers Default. (a) The Developer covenants and agrees with the Agency that Developer shall notify the Agency in writing within 5 days of Developer receiving notice that Construction Lender declares the Developer to be in default or if an event of default has occurred under the financing documents for the Construction Financing. The notice from the Developer to the Agency shall state the basis of the default by the Developer, shall identify the particular provision of the financing documents under which the Developer is in default and shall include copies of any pleadings in any proceeding instituted by the Construction Lender incident thereto. (b) Any notice from the Agency to the Developer specifying an event of default by the Developer under Section 12.01 hereof shall, at the same time it is provided to the Developer, be mailed by the Agency to any Construction 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 Construction 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 Agency from proceeding with or enforcing any right or remedy available to it under this Agreement. The notice from the Agency to the Construction Lender shall state the basis of the default, the particular provision of this Agreement under which the Developer is in default and shall include copies of any pleadings in any proceedings instituted by the Agency incident thereto. 5.03. Cure of Developer's Default by Lender. (a) (1) Following the Agency providing the notice under Subsection 5.02(b) hereof, the Construction Lender may, at its election, cure or remedy the default by the Developer described in such notice. If the Construction Lender 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 12.01 hereof. (2) So long as the Construction Lender proceeds to cure or remedy the Developer's default of this Agreement, the Agency agrees not to exercise any right or remedy available to it resulting from the Developer's default described in the notice and which the Construction Lender has elected to cure for such period of time as shall be reasonably necessary for the Construction Lender to cure or remedy such default, including any time reasonably necessary for the Construction Lender to obtain possession of the Project Site, if possession is necessary to enable the Construction Lender to cure or remedy such default. (b) If a default by the Developer under this Agreement is timely cured or remedied by the Construction Lender pursuant to this Section 5.03, then the Agency shall not have any rights or remedies against the Developer with regard to such default. (c) If the Construction Lender elects to cure or remedy the Developer's default hereunder as provided in subsection (a) hereof, it shall then be subject to and bound by the provisions of this Agreement and the actions required to be taken to remedy or cure said default that, but for the default by the Developer, would have been applicable to the Developer. (d) If, as a result of the Construction Lender curing or remedying a default by the Developer under this Agreement, the Construction Lender completes the construction of the Project upon receipt of a written request by the Construction Lender to the Agency for a construction Completion Certificate, the Agency shall execute and deliver to the Construction Lender a construction Completion Certificate for the Project, in the same manner and procedure as if the Developer has requested such a certificate under Section 7.05 hereof. (e) Subsequent to a default under this Agreement by the Developer, if the Construction Lender does not timely elect to cure such default as provided in subsection (a) hereof, or makes such election and proceeds to construct and complete the Project, but fails to complete such construction by the 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 and mutually agreed upon by the Agency and the Construction Lender), then the Agency may proceed with any remedies available to it under Section 12.01 11 hereof. 5.04. Construction Lender Not Obligated to Construct. (a) If the Construction Lender elects not to cure a default by the Developer hereunder as provided in Subsection 5.03(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 (I) any other party who thereafter obtains title to the Project Site or such part from and through such holder or, (ii) any other purchaser at a foreclosure sale, or (iii) 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 5.04 or any other provisions of this Agreement shall be deemed or construed to permit or authorize any Construction Lender 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 and improvements provided in the Plan and in the Project Plans and Specifications, unless prior to commencement of such use, approval thereof is obtained from the Agency, which approval shall not be unreasonably withheld or delayed. 5.05. Agency Cures Developer's Default. If prior to the issuance of the Project Completion Certificate, the 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, if permitted by the terms of the Construction Financing, 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 twelve percent (12 %) 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 and subordinate to the lien of any then existing mortgage of the Project Site in favor of the Construction Lender. ARTICLE 6. PROJECT SITE CONVEYANCE. 6.01. Findings; Representations. (a) The Agency is or will be, the owner of the Project Site by the Closing Date. (b) Developer desires to purchase from Agency and Agency desires to sell to Developer the Project Site. 6.02. Agreement to Sell and Purchase. The Agency hereby agrees to sell and convey the Project Site to Developer and Developer hereby agrees to purchase the Project Site from Agency, upon the terms and conditions set forth in this Article 6. 6.03. Purchase Price/Deposit. (a) The Developer shall pay to the Agency as the purchase price for the Project Site the sum of Two Million Five Hundred Thousand and 00/100 Dollars ($2,500,000.00), which is subject to adjustment as set forth in this Section 6.03 ( "Purchase Price. "). (b) In the event Developer receives approval of the Project with less than 247 residential multi - family dwelling units, the Purchase Price shall be reduced by the sum of $10,000.00 for each dwelling unit less than 242 units ( "Unit Price Minimum "). For example, in the event the Project is approved for 239 units, representing a reduction of 3 units from the Unit Price Minimum, the adjusted Purchase Price shall be $2,470,000.00 [$2,500,000.00 less $30,000.00 (3x $10,000.00)]. 12 (c) Upon execution of this Agreement by Agency and Developer, Developer shall deliver an earnest money deposit in the amount of $250,000, to be paid as follows: $125,000.00 upon execution of the Agreement and $125,000.00 upon approval of the application by the Community Development Board to Escrow Agent, to be held by Escrow Agent in accordance with the terms of an Escrow Agreement, in the form attached hereto and incorporated herein as Exhibit "F" ( "Deposit "). The Deposit shall be paid to Agency and applied to the Purchase Price at closing, unless otherwise disbursed in accordance with the terms of the Agreement and the Escrow Agreement. (d) As a result of the findings in the Report of the Preliminary Geotechnical Investigation, prepared by Driggers Engineering Services Incorporated, dated January 27, 2014, the Agency agrees to provide Developer with a credit at closing of $725,000.00. (e) In accordance with Section 7.01(a) herein, Developer shall provide a credit at closing to Agency of $7,500.00. 6.04. Site Evaluation. (a) From and after the Effective Date hereof during the term of this Agreement, the Developer and its agents and representatives shall be entitled to enter upon the Project Site for inspection, soil tests, examination, and such other matters and investigations as Developer deems necessary and appropriate. In this regard, no such examination will be deemed to constitute a waiver or a relinquishment on the part of Developer of its right to rely on the covenants, representations, warranties and agreements made by Agency or upon the agreements provided to Developer by Agency. Developer will restore any disturbance to the Project Site caused by its acts and will hold Agency harmless and indemnify Agency from and against any and all damages and liability occasioned by any claim asserted against Agency caused by such examination, excluding all damages and liability as a result of (i) a pre- existing condition on the Project Site, or (ii) the negligence and willful misconduct of the Agency. (b) Notwithstanding any other provision of this Agreement, Developer shall have the absolute right for a period of forty-five (45) days following the date upon which the Community Development Board has approved the Applications, inclusive of any appeal period, in which to review and examine the Project Site and the items provided from Agency (herein referred to as the "Evaluation Period "). At any time prior to the expiration of the Evaluation Period, Developer may terminate this Agreement if, in its sole discretion, Developer determines that the Project Site or the contemplated development or construction thereon is not economically or otherwise acceptable to Developer. Developer may terminate this Agreement as provided in Section 12.05, however, Developer shall not be entitled to a return of the Deposit. (c) Notwithstanding any other provision of this Agreement, in the event Developer does not receive approval of the Project after diligent effort and compliance with the timelines for submittal set forth herein and the procedural requirements of the City for submitting plans and specifications for approval to the City, Developer shall be entitled to terminate this Agreement as provided in Section 12.05 hereof, and shall receive a return of the Deposit. (d) Notwithstanding any other provision of this Agreement, in the event Developer is unable to obtain financing on commercially reasonable terms prior to the Closing Date, Developer may elect to terminate this Agreement as provided in Section 12.05. 6.05. Title. (a) Within twenty (20) days after the Effective Date, the Agency shall furnish to Developer, at Agency's expense, a commitment for the issuance of an owner's policy of title insurance for the Project Site by Old Republic National Title Insurance Company, by its agent Fletcher & Fischer, P.L. (collectively, "Title Company "), in the standard form adopted by the American Land Title Association, at no more than the promulgated rate, accompanied by one copy of all documents affecting the Project Site which constitute exceptions to the commitment. This commitment shall be in the amount of the total Purchase Price of the Project Site, shall show in Agency or the City, a good and marketable title in fee simple, free and clear of all 13 liens and encumbrances without exception other than those permitted under the provisions of Section 6.13 hereof (the "Permitted Exceptions ") in a form reasonably acceptable to Developer and shall be referred to hereinafter as the "Title Commitment ". (b) If the Title Commitment, any update thereof or subsequent title commitment or the survey delivered to Developer in connection with the Project Site shows that the title is defective or unmarketable or that any part of the Project Site is subject to liens, restrictions, easements, encroachments or encumbrances of any nature whatsoever other than the Permitted Exceptions, Developer shall give Agency a reasonable time (not to exceed sixty (60) days after Developer has given written notice to Agency of any unacceptable conditions of title) within which to remedy or remove any such unacceptable conditions of title. Failure of Agency to remedy or remove any such unacceptable condition of title shall constitute a grounds for termination as provided in Section 12.05, unless Developer gives Agency its written waiver of such unacceptable condition of title. (c) Within thirty (30) days after closing, Agency shall furnish to Developer, at Agency's expense, a standard ALTA Marketability Form B -1970 (Rev. 10/17/70 and Rev. 10/17/84) owner's policy of title insurance based on the Title Commitment. Such policy will be issued by the title company that issued the Title Commitment, will be in the amount of the Purchase Price and will insure Developer's fee simple title, as the case may be, to the Project Site subject to no exceptions other than the Permitted Exceptions. Agency shall pay the premium charged for the issuance of any owner's policy of title insurance to the extent of the Purchase Price showing Developer as the fee simple owner of the Project Site. 6.06. Survey. (a) The Developer, shall employ a surveyor licensed by the State of Florida to prepare a current survey of the Project Site. (b) The survey shall: (1) Include the sealed Survey Certification attached hereto as Exhibit "G" for the Project Site. (2) Set forth an accurate metes and bounds description of the Project Site, which metes and bounds description shall be used for the purposes of conveying the Project Site to Developer hereunder, and the gross number of acres contained in the Project Site. (3) Locate all existing easements and rights of way, whether recorded or visible (setting forth the book and page number of the recorded instruments creating the easement). (4) Show any encroachments onto the Project Site from adjoining property and any encroachments from the Project Site onto adjoining property. (5) Show all existing improvements (such as buildings, power lines, fences, roads, driveways, railroads, underground pipelines, cables, etc.) and all rivers, creeks, drainage ditches or other water courses. (6) Show all dedicated public streets providing access to the Project Site and whether such access is paved to the property line of the Project Site. (7) Identify any flood zones as defined on Federal Flood Insurance Rate Maps (F.I.R.M.) for Pinellas County, Florida that affect the Project Site. (8) Show all applicable set back lines with reference to the source of the set backs. In the event the survey shows any encroachments of any improvement upon, from or onto the Project Site or shows any other matter of survey which is objectionable to Developer, in Developer's sole discretion, then Developer shall provide Agency with notice of such defect and the same shall be deemed a title defect and shall be treated as an objection to title by Developer as provided under Section 6.05(b). 14 6.07. Rights and Duties of Agency. (a) Agency shall cooperate in good faith with Developer in Developer's evaluation of the Project Site and shall execute all documents or perform such other acts, reasonably necessary to enable Developer to satisfactorily complete its evaluation of the Project Site and shall provide to Developer and its consultants any information or documents reasonably required by Developer and in Agency's or its consultant's possession which would assist Developer in such evaluation and preparation. (b) Agency shall reaffirm in writing to Developer that the covenants, warranties and representations set forth herein are true and correct as of the Closing Date. Rights and Duties of Developer. Developer agrees to timely commence and pursue its evaluation of the Project Site hereunder in good faith; provided, however, at any time, Developer may cease such evaluations and terminate this Agreement as provided in Section 6.04(b). 6.09. Conditions to Closing. (a) The obligation of Developer to purchase the Project Site is subject to the following ( "Conditions to Closing ") unless waived by the Developer on or before the Closing Date: (1) Developer's purchase of the Project Site is contingent upon Developer obtaining approval of the Applications, resulting in a site plan approval of the Project for no fewer than 225 multi - family residential dwelling units and 10,000 square feet of ground floor retail space. Approval of 257 multi - family residential dwelling units and up to 15,000 square feet of ground floor retail shall be sought by Developer but are not conditions precedent to closing. (2) The representations and warranties of Agency set forth herein being true on and as of the Closing Date with the same force and effect as if such representations and warranties were made on and as of the Closing Date. (3) The Project shall be in compliance with the zoning, land use and concurrency requirements for the Project for no fewer than 225 multi - family residential dwelling units. (4) Developer making a determination that the Town Lake has adequate capacity to accept stormwater drainage from the Project Site and obtaining any necessary stormwater drainage easements for the benefit of the Project Site. (5) Intentionally Omitted. (6) Intentionally Omitted. (7) Conveyance by the City to the Agency, fee simple title to any portion of the Project Site owned by the City. (8) Repayment by the Agency of all funds due to the U.S. Department of Housing and Urban Development related to the Project Site. (9) Developer obtaining financing for construction of the Project on commercially reasonable terms. (10) The City granting easements at the Prospect Lake Park/Project Site boundary to permit construction of the Project as contemplated in the Plans and Specifications, as further described in Section 7.08. (11) The City entering into a Park Access Agreement in the form attached hereto as Exhibit "K ". In the event the Conditions to Closing are not satisfied on or before the Closing Date, as hereinafter defined, 15 Developer may terminate this Agreement as set forth in Section 12.05 or may, at Developer's option, extend the Closing Date to permit the Agency to satisfy the Conditions to Closing. If Developer terminates because the Conditions to Closing are not satisfied, Developer shall be entitled to return of the Deposit except as otherwise provided herein. (b) The obligation of the Agency to convey the Project Site to the Developer is subject to the following unless waived by the Agency on or before the Closing Date: (1) The representations and warranties of the Developer set forth in Section 10.01 being true on and as of the Closing Date with the same force and effect as if such representations and warranties were made on and as of the Closing Date. (2) The Developer is not then in default of this Agreement as provided in Section 12.01. (3) The Agency shall have approved the Project Plans and Specifications. (4) The City shall have approved the Site Plan for the Project for no fewer than 225 multi - family dwelling units and at least 10,000 square feet of ground floor retail space. Closing. Provided all conditions to conveyance of the Project Site to the Developer have been satisfied, Developer shall purchase the Project Site on or before the date which is 30 days after issuance of all Building Permits (herein referred to as the "Closing Date "). The parties may mutually agree to change the Closing Date, provided however that in no instance shall the Closing Date occur later than October 31, 2014. 6.11. Closing Procedure. (a) At closing, the Agency shall convey to Developer by special warranty deed, in the form attached hereto as Exhibit "C ", title in fee simple to the Project Site, free and clear of any and all liens, encumbrances, conditions, easements, assessments, restrictions except those permitted in this Agreement and the Permitted Exceptions. (b) At closing, the Agency shall execute and deliver to Developer and Title Company an Affidavit of No Liens in a form satisfactory to Title Company and Developer, so as to cause Title Company to remove the "gap," unrecorded easements and other standard exceptions from the Title Commitment including the construction liens and parties in possession. (c) At closing, the Agency shall deliver to Title Company and Developer a certified copy of the organic document (e.g., the ordinances and resolutions) and all amendments thereto, that legally formed Agency and /or pursuant to which Agency holds title to the Project Site, along with evidence satisfactory to Title Company of Agency's authority to execute and deliver the documents necessary or advisable to consummate the transaction contemplated hereby. (d) At closing, the Agency shall deliver an endorsement to the Title Commitment required herein and such further instruments as may be required by Developer, Developer's counsel or the Title Company to vest in Developer title of the Project Site as provided herein, all at Agency's expense. (e) Developer shall pay the Purchase Price for the Project Site to Agency as provided in Section 6.03. (f) The Project Site is currently exempt from ad valorem real estate taxes. Commencing on the Closing Date, Developer shall be responsible for all ad valorem real estate taxes on the Project Site and any personal property taxes. (g) Agency shall pay all special assessments and taxes, interest and penalties levied against the Project Site prior to the Closing Date. (h) Agency has terminated all original leases, if any, for the Project Site or any part thereof and all 16 tenants will have vacated the Project Site by the Closing Date. (i) Agency shall deliver to Developer all original documents pertaining to the Project Site including licenses and permits, if any. Q) Agency shall pay for all documentary stamps and transfer taxes, if any, for the deed, and for the preparation, recording and documentary stamps for all closing documents, lien releases and title curative instruments, its own attorney's fees, the premiums for the owners title insurance policy, and for recording the deed and all other closing costs and expenses. (k) Intentionally Omitted. (I) Intentionally Omitted. (m) Intentionally Omitted. (n) Closing shall be conducted at the law offices of Fletcher & Fischer, P.L., Tampa, Florida, or elsewhere by mutual agreement. 6.12. Possession. Possession of the Project Site shall pass to Developer upon completion of the closing. 6.13. Condition of Title. Title to the Project Site at the time of conveyance shall be free of all liens, restrictions, easements, encroachments and encumbrances of any nature whatsoever except the following (the "Permitted Exceptions "): (a) Real estate taxes for the year of closing and subsequent years that are a lien but not yet due and payable. (b) Comprehensive land use planning, zoning and budding ordinances, regulations and requirements adopted by govemmental or municipal authority having jurisdiction. (c) Those additional exceptions as contained in the Title Commitment to be delivered by Agency to Developer at closing which Developer, in its sole and absolute discretion, has elected to accept. 6.14. Taxes and Assessments. Agency agrees to pay all taxes and assessments that become a lien on the Project Site prior to the Closing Date promptly when due. All special assessments applicable to any portion of the Project Site, delinquent taxes and delinquent installment of special assessments, together with any penalties and interest thereon, shall be paid by Agency on or before the Closing Date. 6.15. Covenants, Warranties and Representations. Agency hereby covenants, warrants and represents to Developer that: (a) The title of Agency to the Project Site hereby sold is absolute, good and marketable and free and clear of all liens and encumbrances except for the Permitted Exceptions. (b) Agency will have the full legal power to own and convey the Project Site as provided for herein, following conveyance to the Agency of that portion of the property owned by the City. (c) There are no legal proceedings pending, threatened or contemplated against Agency or the City in any court, tribunal or administrative agency which affect the Project Site or which give or will give rise to any claims or liens against the Project Site or affect Agency's right to transfer the Project Site. The Agency entered into a prior development agreement on the Project Site, which prior agreement has been terminated by the Agency in accordance with its terms. The developer under that prior agreement has not executed a 17 termination certificate as required by the prior agreement. The developer under the prior development agreement included the legal description of the Project Site as land it intended to make subject to Declaration of Covenants and Restrictions for Mediterranean Village in the Park, Stage I recorded in O.R. Book 13604 Page 750 of the Public Records of Pinellas County, Florida together with O.R. Book 14122, Page 1362, O.R. Book 14780, Page 768 and O.R. Book 14780, Page 771 of the Public Records of Pinellas County, Florida (the "CCRs "). The Agency shall undertake all reasonably necessary actions to fulfill all of the requirements of Schedule B -1 of the Title Commitment, including the bringing of suit, if necessary, in order to extinguish any rights of third parties that may exist in connection with the prior Development Agreement and the CCRs. (d) Except with regard to the prior development agreement and CCRs as provided above, there are no rights of possession, use, rights of first refusal or otherwise to the Project Site outstanding in third persons by reason of unrecorded leases, land contracts, sale contracts, options or other documents. (e) No work has been performed or is in progress on or at the Project Site and no materials have been furnished to Agency or the Project Site or any portion thereof which after closing could give rise to any mechanics', materialmen, or other liens, and at the closing, Agency shall furnish to Developer an affidavit attesting to the absence of any such liens or rights to liens. (f) No assessment for public improvements or otherwise have been made against the Project Site which remain unpaid, including without limitation, any special assessments or those for construction of water, sewer, gas and electric lines, nor have any been proposed. (g) Except as disclosed in subsection 6.15(j), below, Agency has no information or knowledge of any change contemplated in the applicable laws, ordinances or restrictions, or any judicial or administrative action, or any action by adjacent land owners or natural or artificial conditions upon the Project Site which would prevent, limit, impede or make more costly the present or proposed use of the Project Site, provided, however, the City is in the process of adopting amendments to the land development code, but, if adopted, it will not adversely affect the proposed use or contemplated development of the Project Site. (h) From and after the date hereof, Agency shall refrain from (1) making any material changes on or about the Project Site; (2) creating and incurring or permitting to exist any mortgage, lien, pledge or other encumbrance in any way affecting the Project Site; or (3) committing any waste or nuisance on the Project Site. (i) From and after the date hereof, and at any time prior to transfer of title to Developer, Agency shall not grant, sell or convey any interest in the Project Site, including easements or rights of way, to any person, corporation (public or private), governmental body or political subdivision without the written permission of Developer. (j) Agency has delivered to Developer and Developer acknowledges receipt of: (i) Phase I of St. Vincent DePaul ESA (Cardno TBE 10/2010) and Phase II of St. Vincent DePaul ESA (Cardno TBE 3/2011); (ii) Phase II 1021 Park St. (Shaw 3/2013; (iii) Phase II 1005 Park St. (Shaw 12/2012; (iv) the Phase I Environmental Site Assessment for the Property (URS September 2013) ( "Phase I ESA "); (v) the Phase II Environmental Site Assessment Report, St. Vincent De Paul Property (URS January 2013); and (vi) the Hydraulic Lift Removal and Phase II Environmental Site Assessment Report, Park Street Properties, Clearwater, Florida (URS January 2014) ( "Phase II ESA "). The Phase II ESA confirms the completion of the removal of four hydraulic lifts from the St. Vincent De Paul parcel in November 2013 and the removal of five hydraulic lifts and some impacted soil from the Ace Auto parcel in November 2013. Following the completion of this removal effort, confirmation soil samples were below the residential soil cleanup target level ( "SCTL ") at the soil excavation areas on both parcels, and the groundwater sampled was below the groundwater cleanup target level ( "GCTL "). The Phase II ESA also described the results of additional soil sampling conducted throughout the Property and concluded no further remedial action is warranted for the Property. Finally, URS recommended in the Phase II ESA that if any soil is excavated from the Property that is to be removed from the Property, such soil should be analyzed for benzo(a)pyrene in order to determine appropriate off site uses (k) (1) Compliance with Environmental Law. Agency has: (I) materially complied with all applicable 18 Environmental Law; and (ii) not received any notice of alleged outstanding violation of Environmental Law, nor does Agency have knowledge of any facts or circumstances that could constitute such a violation. To the best of Agency's knowledge, there are no Hazardous Substances on, above, within, underneath or in groundwater underlying the Property which exceed applicable standards under any Environmental Law, other than the contaminants described in the Phase II ESA. (2) Definitions. For purposes of this Article 7, the terms in this paragraph (2) shall have the following meanings: (i) "Hazardous Substances" means any substance or material: (a) identified in Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §9601, as the same may be amended from time to time; or (b) determined to be toxic, a pollutant or contaminant, under Federal, state or local statute, law, ordinance, rule or regulation or judicial or administrative order or decision, as same may be amended from time to time, including but not limited to (i) hazardous wastes as identified pursuant to the Resource Conversation and Recovery Act, 42 U.S.C. §6901, et seq., as the same may be amended from time to time, or (ii) pollutants, petroleum and petroleum products as defined in either Chapter 403 or Chapter 376, Florida Statutes, as the same may be amended from time to time. (ii) "Environmental Law" means any Federal, state or local statutory or common law relating to pollution or protection of the environment, including without limitation, any common law of nuisance or trespass, and any law or regulation relating to emissions, discharges, releases or threatened releases of Hazardous Substances into the environment (including without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances. (I) Other than the information contained in in the reports described in 0) above, the series of email exchanges and correspondence between the United States Environmental Protection Agency and City (copies of which have been provided to Developer and are identified in Exhibit "M ", attached hereto), and the Report of the Preliminary Geotechnical Investigation, prepared by Driggers Engineering Services Incorporated, dated January 27, 2014, Agency has no knowledge of any adverse fact relating to the physical condition of the Project Site or any portion thereof which has not been specifically disclosed in writing to Developer, including without limitation landfills, hazardous wastes, fault lines, sinkholes or other geological conditions or adverse soil conditions. (m) Agency has no knowledge that any commitments have been made to any governmental authority, utility company, school board, church or other religious body, homeowners' association, or any other organization, group or individual relating to the Project Site which would impose an obligation upon Developer or its successors or assigns to make any contributions or dedications of money or and or to construct, install or maintain any improvements of a public or private nature on or off the Project Site. (n) There are no facts known to Agency materially affecting the value of the Project Site which are not readily observable by Developer or which have not been disclosed to Developer or identified by Developer in its site investigation. (o) There exists no violation of any requirement or condition to current zoning or land use classifications applicable to the Project Site. (p) The Project Site is not included in any national, state, county or municipal historic registry or similar classification, nor does the Project Site include any historical or archeological artifacts. (q) The Agency has full power and authority to enter into this Agreement and consummate the transactions contemplated hereby and neither this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation of any order, rule, regulation, agreement or instrument or any charter or organizational documents to which the Agency is subject. No further approvals or consents by third parties or governmental bodies are required in order for the Agency to enter into this Agreement and 19 consummate the transactions contemplated hereby. (r) The covenants, representations and warranties of the Agency as contained herein shall be true and correct as of the Closing Date and shall survive the closing of this transaction. 6.16. Condemnation. In the event that prior to the Closing Date, all or any portion of the Project Site or any rights or easements therein shall be taken by condemnation or rights of eminent domain or like process, or shall be threatened therewith, and the same, in Developer's reasonable opinion, would have a materially adverse impact upon Developer's use of the Project Site, Developer shall, within fifteen (15) days after having received notice thereof from Agency, elect in writing to either (a) continue this Agreement in full force and effect, notwithstanding such taking or threatened taking, in which case Developer shall be required to continue the purchase of the Project Site, in which event Agency shall assign or pay to Developer the applicable portion of the proceeds payable under such condemnation proceedings, (b) delete the portion of the Project Site condemned or threatened to be condemned from this Agreement, with a proportionate reduction in the Purchase Price, or (c) terminate this Agreement and receive a return of the Deposit. 6.17. Real Estate Commission. Developer and Agency represent that they have not used any brokerage services with respect to the conveyance of the Project Site to the Developer as herein contemplated. The Agency and the Developer shall each hold the other harmless and indemnify the other party, its respective successors, assigns, employees, directors and agents from any and all costs, damages, liabilities and expenses, including reasonable attorney's fees, incurred by reason of any claim for fee or commission of any kind based on the sale contemplated herein. 6.18. Maintenance of Project Site. Prior and up to the Closing Date during its continued possession, the Agency shall maintain the Project Site in good order. 6.19. Radon Gas Notice. (a) As required by Section 404.056(6), Florida Statutes, the following notice is hereby given to the Developer as the prospective purchaser of the Project Site, which may have buildings located thereon, 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 quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit." ARTICLE 7. CONSTRUCTION OF THE PROJECT. 7.01. Site Clearance and Utility Relocation. (a) Except as noted below, the Developer shall be responsible for clearance of the Project Site such that it is in a condition ready for Commencement of Construction as of the Commencement Date. Permits issued by the City for pre - construction activities on the Project Site, including site clearance, shall not be considered a Building Permit for purposes of this Agreement. Agency has partially demolished a concrete block and metal shed on a portion of 1005 -1009 Park Street, including the removal of all debris and Brazilian Pepper trees, and cleanup of the general site. The cost to perform work was $7,500 which amount shall be credited to the Agency at Closing. (b) To the extent required for construction of the Project, the Developer shall be responsible for relocation on the Project Site of the following City utilities: 310 feet of 8 inch sanitary sewer running north — south between Park Street and Pierce Street; 150 feet of 42 inch storm sewer and 200 feet of 36 inch storm sewer running north -south between Park Street and Pierce Street. Developer shall be responsible for design and permitting of the improvements to City standards. The Agency shall reimburse Developer for the approved costs of relocating said utilities in an amount not to exceed two hundred and fifty thousand dollars 20 ($250,000). Developer shall submit contractors bid prices with the reimbursement request and proof of payment. The reimbursement of these utility relocation costs shall be paid from funds legally available to the Agency subject to the limitations contained in Section 15.17. 7.02. Construction of the Project. (a) The Developer shall construct the Project on the Project Site substantially in accordance with the Project Plans and Specifications. Subject to Unavoidable Delay and the terms and conditions in this Agreement, the Developer shall Commence Construction of the Project no later than twelve (12) months after the approval of the Development Agreement. (b) (1) After the Commencement Date and no later than six months following that date, the Developer shall commence Vertical Construction of the Project. The Developer shall continue, pursue and prosecute the Vertical Construction of the Project with reasonable diligence to substantial completion by the Completion Date and shall not at any time actually or effectively have abandoned (or its Contractor having actually or effectively abandoned) the Project Site. For purposes of this subsection (b), "abandoned" means to have ceased all construction work, including all or substantially all the construction work force withdrawing from the Project Site for a period of sixty (60) days. (2) AU obligations of the Developer with respect to commencement, continuation and completion of construction of the Project shall be subject to delays and extensions from time to time for Unavoidable Delay. The Developer shall not be deemed to be in default of this Agreement to the extent construction or completion of the Project, or any part thereof, is not complete by reason of Unavoidable Delay. (c) For purposes of this Agreement, "completion," "complete," "substantially complete" or "substantial completion" means, that a certificate of occupancy for the shell of the retail portion of the structure (not including any tenant improvements for the retail space) and a Certificate of Occupancy for each residential building has been issued by the City. (d) (1) 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 shall make quarterly reports to the Agency in such detail and in such form as may reasonably be requested by the Agency as to the actual progress of the construction of the Project. (2) If the Agency reasonably believes adequate progress in the construction of the Project is not being made, the Agency shall give written notice to the Developer that adequate progress is apparently not being made in the Project and Developer shall have a period of ten (10) business days after receipt of such notice in which to respond to Agency as to why adequate progress is or is not being made toward completion of the Project. (e) (1) The Developer agrees that each contract between the Developer and a Contractor for the Project shall provide, among other things, that: (i) notice shall be given to the Agency of any material defaults thereunder by the Developer or the Contractor; and (ii) in the event of a material breach by the Developer of such contract that is not being contested by the Developer, 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. (2) If the Agency elects to cure a material default by the Developer under a contract between the 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, specifications, 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 subject and subordinate to the right of the Construction Lender to cure such default. 21 (f) The Agency agrees to request that the City cooperate to allow the Developer to stage construction activity off the Property, including but not limited to, on the property identified as all of Lots P -65 through P -74 of MEDITERRANEAN VILLAGE IN THE PARK, according to the map or plat thereof as recorded in Plat Book 125, Page 44 of the Public Records of Pinellas County, Florida, and on any other property owned by the Agency which is near the Property. 7.03. Maintenance and Repairs. During the construction of the Project, the Developer shall, at its own expense, keep the Project in good and clean order and condition and the Developer shall promptly make all necessary or appropriate repairs, replacements and renewals thereof, whether 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 applicable laws, ordinances, codes and regulations. 7.04. Protect Alterations or Improvements. During the construction of the Project, the Developer may, from time to time, make alterations and improvements, structural or otherwise, to the Project as the Developer deems desirable and consistent with the Project Plans and Specifications for the 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 Project Plans and Specifications, the Developer shall notify the Agency of such material change and shall submit a change, amendment or revision to the Project Plans and Specifications to the Agency for review as provided in Sections 4.03 and 4.04 hereof. Nothing in this Section 7.04 is intended nor shall be deemed to limit or restrict the exercise of governmental or regulatory powers or authority by the City or any other governmental entity or to enlarge its regulatory authority. 7.05. Completion Certificate. (a) (1) Upon the substantial completion of the construction of the Project in accordance with the provisions of this Article 7 (particularly including subsection 7.02(c)), the Developer shall prepare and execute the Completion Certificate, which shall then be delivered to the Agency. Upon receipt of the Completion Certificate, the Agency shall promptly and diligently proceed to determine if construction has been completed substantially in accordance with the Project Plans and Specifications and this Agreement. Upon making such a determination the Agency shall execute the Completion Certificate and return it to the Developer. The date of the Completion Certificate shall be the date when the last of the parties shall have executed the Completion Certificate. (2) The Completion Certificate shall constitute a conclusive determination by the parties hereto of the satisfaction and termination of the obligations of the Developer hereunder to construct the Project; provided, however, that nothing in this Section 7.05 shall be a waiver of the rights, duties, obligations or responsibilities of the City or any other governmental entity acting in its regulatory or governmental capacity or an approval of said construction for purposes of the issuance of a certificate of occupancy for the Project. (3) The parties agree that it is their intent that the review by the Agency for purposes of the Completion Certificate determination pursuant to this Section 7.05 is not to be an additional or duplicate inspection over and above that required for purposes of the Building Permit, including the issuance of a certificate of occupancy. The Agency agrees that for purposes of determining if the Project has been substantially completed in accordance with the Project Plans and Specifications, the issuance of a certificate of occupancy shall be a conclusive determination of substantial completion for purposes of this subsection (a) and, if such certificate of occupancy has been determined to have been issued, then the Agency agrees to execute the Completion Certificate. (b) If the Agency shall refuse or fail to execute the Completion Certificate after receipt of a request by the Developer to do so, then the Agency shall, within ten (10) days after its receipt of such request, provide the Developer with a written statement setting forth in reasonable detail the reason(s) why the Agency has not executed the Completion Certificate and what must be done by the Developer to satisfy such objections so that the Agency would sign the Completion Certificate. Upon the Developer satisfying the Agency's objections, then the Developer shall submit a new request to the Agency for execution of the Completion Certificate and that request shall be considered and acted upon in accordance with the procedures in 22 paragraph (a)(1) for the original request. (c) The Completion Certificate shall be in a form sufficient to be recorded in the public records of Pinellas County, Florida. After execution by the Agency, it shall be promptly returned to the Developer who shall record the Completion Certificate in the public records of Pinellas County, Florida, and pay the cost of such recording. 7.06. Agency Not in Privity with Contractors. The Agency shall not be deemed to be in privity of contract with any Contractor or provider of goods or services with respect to the construction of the Project. 7.07. Repurchase of the Project Site. (a) In the event Developer does not commence Vertical Construction of the Project in accordance with the Project Schedule set forth in Sections 4.06 and 7.02 hereof, Agency shall have an option to purchase the Project Site upon the terms and conditions as set forth in this Section 7.07 (the "Property Option "). The Property Option shall be exercised by Agency within ninety (90) days following the last date on which Developer was required to commence Vertical Construction. The Property Option shall be exercised by Agency providing written notice to Developer of its intent to exercise the Property Option within said ninety (90) day period (time being of the essence with respect to such notice); provided, however, that Agency shall not have the right to exercise such Property Option in the event Developer cures its failure to commence Vertical Construction within thirty (30) days following its receipt of such written notice. In the event that Agency should fail to provide such written notice of its exercise of the Property Option within said ninety (90) day period, then the Property Option shall immediately and automatically lapse. (b) Upon proper and timely exercise of the Property Option, Agency and Developer shall undertake to close the conveyance of the Project Site by Developer to Agency within sixty (60) days following the date of notice of the exercise of the Property Option upon the following terms and conditions: (1) The Project Site shall be acquired subject to any recorded mortgages, notes, or other debt instruments in favor of third parties encumbering the title to the Project Site as evidenced in the Public Records of Pinellas County, Florida. (2) The price to be paid by Agency to Developer for the Project Site shall equal the Purchase Price paid by Developer to Agency at closing less the amount of outstanding debt encumbering the Project Site pursuant to paragraph (b)(1) above that is assumed by the Agency. (3) The Project Site shall be conveyed by Developer to Agency pursuant to a special warranty deed, which deed shall be subject to taxes for the year of closing and the other Permitted Exceptions to which the Project Site was subject on the Closing Date. (c) Upon the commencement of Vertical Construction by Developer in accordance with the Project Schedule, the Agency shall, within five (5) days of Developer's request, execute and deliver to Developer, in recordable form, a termination of the Agency's Property Option. (d) Upon conveyance of the Project Site to the Agency pursuant to the exercise of the Property Option, this Agreement shall terminate as provided in Section 12.05. (e) The Property Option shall survive a termination of this Agreement by the Developer pursuant to Section 12.05. 7.08 Easements. Upon approval of the Plans and Specifications, the Agency shall work with the Developer to obtain from the City any additional required easement agreements to permit construction of the Project with zero foot setbacks on the Project Site /Park boundary, which agreements shall be substantially in the form provided in Exhibit "N ", hereto. 23 ARTICLE 8. INSURANCE. 8.01. Insurance Requirements Generally. (a) The Developer agrees to purchase and maintain or cause its construction Contractor to purchase and maintain) in full force and effect such insurance policies with coverages generally applicable to projects in the State of Florida and Pinellas County similar in size and scope to the Project. All insurance 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. (b) The insurance coverages and limits shall be evidenced by properly executed certificates of insurance, copies of which shall be provided to the Agency during the term of this Agreement. No less than thirty (30) days written notice by registered or certified mail must be given by the Developer to the Agency of any cancellation, intent not to renew, or reduction in the policy coverages. (c) Nothing in this Agreement is intended or shall be deemed to be designed by the Agency as a recommended insurance program for the Developer. (d) (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. 8.02. Intentionally Deleted. 8.03. No Waiver of Sovereign Immunity. Nothing in this Article 8 is intended or shall be deemed to constitute a waiver in whole or in part of any sovereign immunity applicable to and that may be asserted by the City or the Agency. ARTICLE 9. INDEMNIFICATION. 9.01. 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 contemplated 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 contemplated by this Agreement, or which 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. (c) The Developer's indemnity hereunder 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. 24 9.02. Indemnification by the Agency. (a) To the extent permitted by law, specifically including Section 768.28, Florida Statutes, and any insurance coverage available to the Agency, 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 obligations of the Agency contemplated 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 obligations of the Agency contemplated by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such obligations. (b) To the extent permitted by law, specifically including Section 768.28, Florida Statutes, and any insurance coverage available to the Agency, 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 covenants, representations or warranties contained in Section 3.02, Section 3.05, Section 6.15 or Section 11.01, or covenants contained in Section 11.02. (c) The Agency's indemnity obligations under this Section 9.02 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. 9.03. Limitation of Indemnification. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations of the Developer (as set forth in Section 9.01) and the Agency (as set forth in Section 9.02), the following shall apply: (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, or the breach of any representations or warranties contained herein by, 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 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER. 10.01. Representations and Warranties. The Developer represents and warrants to the Agency that each of the following statements is currently true and accurate and agrees the Agency may rely upon each of the following statements: (a) The Developer is a Florida Limited Liability Company duly organized and validly existing under the laws of the State of Florida, has all requisite power and authority to carry on its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party and has consented to 25 service of process upon a designated agent for service of process in the State of Florida. (b) This Agreement and, to the extent such documents presently exist in form accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which Developer is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Developer, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof: (1) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (2) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, (3) contravenes or results in any breach of, default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the Developer's articles of organization, or, any other agreement or instrument to which the Developer is a party or by which the Developer may be bound. (c) This Agreement and, to the extent such documents presently exist in form accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Developer enforceable against the Developer in accordance with the terms thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (d) There are no pending or, to the knowledge of the Developer, threatened actions or proceedings before any court or administrative agency against the Developer, or against any controlling 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 Longwood, Florida, and, until the expiration or termination of this Agreement, the Developer will keep original or duplicate records concerning the Project (such as construction contracts, financing documents and corporate documents) and all contracts, licenses and similar rights relating thereto at its office located in Longwood, Florida, copies of which shall be made available to Agency upon 24 hours' written notice. (h) As of the Closing Date, the Developer will have the financial capability to carry out its obligations and responsibilities in connection with the development of the Project as contemplated by this Agreement, including the purchase of the Project Site from the Agency as contemplated by Article 6. (i) The Developer (with the assistance of its Project Professionals) has the experience, expertise, and capability to develop, cause the construction, and complete the Project and, oversee and manage the design, planning, construction, and completion of the Project, and to acquire the Project Site as provided herein. 10.02. 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 26 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 contemplated by this Agreement that are applicable to, and that are 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 this Agreement and the Project Plans and Specifications and will not violate any laws, ordinances, rules, regulations, orders, contracts or agreements that are or will be applicable thereto, including the Plan and the Act. (d) The Developer shall comply with all provisions of the financing documents for any Construction Financing. (e) Subsequent to the Effective Date, the Developer shall maintain its financial capability to develop, construct and complete the Project and shall promptly notify the Agency of any event, condition, occurrence, or change in its financial condition which materially adversely affects, or with the passage of time is likely to adversely affect, the Developer's financial capability to successfully and completely develop, construct and complete the Project as contemplated hereby. (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 so as to avoid an uncured tax lien against the Project Site. (g) Subject to and except as permitted by Section 15.01, 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 without the prior approval of the Agency, unless the Developer is the surviving entity or retains a controlling interest in the consolidated or merged corporation, in which case no consent by Agency shall be required. In any event, prior to the expiration or termination of this Agreement, the Developer, will promptly notify the Agency of any changes to the existence or form of the limited liability company of Developer. (h) 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 commence and continue, the Developer shall not permit, commit, or suffer any waste or impairment of the Project Site prior to the earlier of the Termination Date or the Expiration Date. (j) 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 set forth in Section 4.06 of this Agreement. 10.03 Covenant: Nondiscrimination. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the marketing, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Project Site, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the Project Site. 10.04. Survival. The representations, warranties and covenants of Developer as contained in Section 10.01 and 10.02 hereof shall survive the conveyance of the Project Site to the Developer by the Agency. The representations, warranties and covenants of Developer as contained in Section 10.03 hereof shall survive the conveyance of the Project Site to the Developer by the Agency and Termination or Expiration. 27 ARTICLE 11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE AGENCY. 11.01. Representations and Warranties. The Agency represents and warrants to the Developer that each of the following statements is currently true and accurate and agrees that the Developer may rely on each of the following statements: (a) The Agency is a validly existing body corporate and politic of the State of Florida, is the duly created community redevelopment agency of the City under Part III, Chapter 163, Florida Statutes (known as the Community Redevelopment Act of 1969), has all requisite corporate power and authority to carry on its business as now conducted and to perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party. (b) This Agreement and, to the extent such documents presently exist in form accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which the Agency is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Agency, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof (1) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (2) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Agency, (3) contravenes or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Agency under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the Agency is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the Agency outstanding on the Effective Date. (c) This Agreement and, to the extent such documents presently exist in form accepted by the Agency and the Developer, each document contemplated or required by this Agreement to which the Agency is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of the Agency enforceable against the Agency in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (d) There are no pending or threatened actions or proceedings before any court or administrative agency against the Agency, or against any officer of the Agency, which question the validity of any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Agency. 11.02. Covenants. The Agency covenants with the Developer that until the earlier of the Termination Date or the Expiration Date: (a) The Agency shall timely perform or cause to be performed all of the obligations contained herein which are the responsibility of the Agency to perform. (b) During each year that this Agreement and the obligations of the Agency under this Agreement shall be in effect, the Agency shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals, and shall cause to occur those events contemplated by this Agreement that are applicable to and are the responsibility of the Agency. (c) The Agency shall assist and cooperate with the Developer to accomplish the development of the Project in accordance with this Agreement and the Project Plans and Specifications, will carry out its duties and responsibilities contemplated by this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts, or agreements that are or will be applicable thereto, and, to the extent permitted by law, the Agency will not enact or adopt or urge or encourage the adoption of any ordinances, resolutions, rules, regulations or orders or approve or enter into any contracts or agreements, including issuing any bonds, notes, or other forms of indebtedness, that will result in any provision of this Agreement to be in violation thereof. 28 (d) The Agency shall not 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 to the best of its ability, 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 that 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. (f) The Agency shall cause the City, subject to the requirements of storm water permitting requirements, to maintain the Prospect Lake Park facility in its current condition, including but not limited to continuing to maintain the sidewalks and bubbler currently constructed and operated therein. 11.03. Survival. The representations, warranties and covenants of Agency as contained in Section 11.01 and 11.02 hereof shall survive the conveyance of the Project Site to the Developer by the Agency. ARTICLE 12. DEFAULT; TERMINATION. 12.01. Default by Developer. (a) Provided the Agency is not then in default of this Agreement under Section 12.02 hereof, the occurrence of any one or more of the following after the Effective Date shall constitute an event of default by Developer ( "Developer Event of Default "): (1) The Developer shall fail to perform or comply with any material provision of this Agreement applicable to it within the time prescribed therefor; provided, however, that suspension of or delay in performance by the Developer during any period in which the Agency is in default of this Agreement as provided in Section 12.02 hereof will not constitute a Developer Event of Default under this subsection (a); or (2) The Developer shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or (3) Within sixty (60) days after the commencement of any proceeding by or against the Developer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed or otherwise terminated, or if, within sixty (60) days after the appointment without the consent or acquiescence of the Developer of any trustee, receiver or liquidator of any of such entities or of any material part of any of such entity's properties, such appointment shall not have been vacated. (b) (1) If a Developer Event of Default shall remain uncured thirty (30) days after written notice thereof to the Developer, then, in addition to any remedy available under Section 12.03, the Agency may terminate this Agreement or pursue any and all legal or equitable remedies to which the Agency is entitled. In the event the Developer has commenced to cure the Developer Event of Default but it is of such nature that it cannot be completely cured within thirty (30) days, then Developer shall have such reasonable additional time as is necessary to cure the Developer Event of Default provided that the entire cure period shall not exceed ninety (90) days after Developer's initial receipt of notice of the Developer Event of Default. Notwithstanding any provision in this Agreement to the contrary, if a Developer Event of Default shall occur prior to the Closing Date, Agency's sole and exclusive remedy shall be to terminate this Agreement and retain the Deposit as agreed upon liquidated damages and in full settlement of all claims. (2) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any Developer Event of Default hereunder if such event affects the Agency's ability to 29 perform by such deadline or the expiration of such period. (c) Subject to the rights of any Lender, any Contractor, creditors of the Developer, and others claiming a legal or equitable interest in the Project, or a portion thereof, if the Agency elects under Section 5.05 to cure a Developer Event of Default and complete the construction of the Project, all plans and specifications, 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 5.05, 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 Project Plans and Specifications, working drawings, construction contracts, contract documents, financial commitments, management agreements, and all Permits. 12.02. Default by the Agency. (a) Provided the Developer is not then in default under Section 12.01, there shall be an "Agency Event of Default" 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 12.01 hereof will not constitute an Agency Event of Default under this subsection (a). (b) If an Agency Event of Default described in subsection (a) shall occur, the Developer shall provide written notice thereof to the Agency, and, after expiration of the curative period described in paragraph (b) 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 Agency Event of Default occurs on or prior to the Closing Date, any monetary recovery by the Developer in any such action shall not include any lost profits or consequential damages and shall be limited to bona fide third -party out -of- pocket costs and expenses, including reasonable attorneys' fees, incurred by the Developer in connection with the negotiation of this Agreement as well as any investigation, due diligence, development, design or construction costs incurred by the Developer in connection with the proposed acquisition and development of the Project Site, unless any such Agency Event of Default was willful and committed in bad faith with reckless disregard for the rights of the Developer. Additionally, if the Agency Event of Default occurs prior to the Closing Date, Developer shall be entitled to return of the deposit provided in Section 6.03. If the Agency Event of Default occurs following the Closing Date, Developer shall provide written notice thereof to the Agency, and, after the expiration of the curative period described in paragraph (c) below, may terminate this Agreement, institute an action to compel specific performance of the terms hereof by the Agency or pursue any and all legal or equitable remedies to which the Developer is entitled; any monetary recovery by the Developer in any such action shall include any lost profits or consequential damages in addition to reimbursement for bona fide third -party out -of- pocket costs and expenses, including reasonable attorneys' fees, incurred by the Developer in connection with the negotiation of this Agreement as well as any investigation, due diligence, development, design or construction costs incurred by the Developer in connection with the proposed acquisition and development of the Project Site. (c) The Developer may not terminate this Agreement or institute an action described in paragraphs (a) or (b) above if the Agency cures such Agency Event of Default within thirty (30) days after receipt by the Agency of written notice from the Developer specifying in reasonable detail the Agency Event of Default, or if any such Agency 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 Agency Event of Default. If the Agency is proceeding diligently and in good faith to cure such Agency Event of Default, the curative period shall be extended for a period of not exceeding an additional thirty (30) days without any approval or consent of the Developer being required, but such approval will be required (and shall be given or withheld in Developer's sole discretion) if the curative period is to be extended beyond the aggregate of sixty (60) days after the notice of such Agency Event of Default has been given by the Developer to the Agency. If the Agency shall fail to cure such Agency Event of Default within said thirty (30) day or longer period (as extended above) or ceases to proceed diligently to timely cure such Agency Event Default, then the Developer may proceed with its available remedies without providing any additional notice to the Agency. 30 (d) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any Agency Event of Default hereunder if such event affects the Developer's ability to perform by such deadline or the expiration of such period. 12.03. Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to the contrary, the specified rights and remedies to which either the Agency or the Developer are entitled under this Agreement are not exclusive and are intended to be in addition to any other remedies or means of redress to which the Agency or the Developer may lawfully be entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in, the performance of its obligations by the Developer, while the Agency shall at such time be in default of their obligations hereunder shall not be deemed to be a Developer 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 Agency Event of Default. 12.04. Non - Action on Failure to Observe Provisions of this Agreement. The failure of the Agency or the Developer to promptly or continually insist upon strict performance of any term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other agreement, instrument or document of whatever form or nature contemplated hereby shall not be deemed a waiver of any right or remedy that the Agency or the Developer may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or provision. 12.05. Termination. (a) The Developer and the Agency acknowledge and agree that as of the Effective Date, certain matters mutually agreed upon by the parties hereto, which are essential to the successful development of the Project, have not been satisfied or are subject to certain conditions, legal requirements or approvals beyond the control of any of the parties hereto or which cannot be definitely resolved under this Agreement. In recognition of these events or conditions, the parties hereto mutually agree that, provided the appropriate or responsible party therefor diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or condition to occur or be satisfied, the failure of the events or conditions listed in subsection (b) below to occur or be satisfied shall not constitute an event of default by any party under this Article 12, but may be the basis for a termination of this Agreement as provided in this Section 12.05. (b) In addition to any other rights of termination provided elsewhere in this Agreement, this Agreement may be terminated prior to the Closing Date as provided in subsection (c) after the occurrence of any of the following events or conditions: (1) Failure to satisfy the Conditions to Closing set forth in Section 6.09. (2) All of the 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, in Developer's sole discretion, commercially unfeasible or unusable for its intended uses as contemplated by this Agreement. (3) The appropriate governmental authority (but not including the City in exercise of its governmental and regulatory authority and responsibility), upon petition by the Developer, unduly delays or denies or fails to issue the Permits, issue the Building Permits, or approve any other land use approval necessary to Commence Construction of the Project on the Project Site. (4) A moratorium on new construction is imposed by a governmental authority within the City or Pinellas County so as to prevent construction of the Project to commence. (5) The City or other appropriate governmental authority has issued a concurrency compliance certificate or a reservation of services capacity as described in Section 3.05 and such certificate or reservation has been revoked, repealed, superseded, or otherwise no longer of any effect or the Developer is unable to rely upon such certificate or reservation, if such a certificate or reservation is 31 required for development of the Project on the Project Site, and the Developer cannot obtain a new or replacement certificate or reservation for the Project. (6) The City approves an amendment to the Plan, which is inconsistent with the Project being located on the Project Site. (7) Utilities are not readily available at the boundaries of the Project Site at locations satisfactory to the Developer by the Closing Date. (c) In the event of a termination pursuant to Section 12.05(b), neither the Developer nor the Agency shall be obligated or liable one to the other in any way, financially or otherwise, for any claim or matter arising from or as a result of this Agreement or any actions taken by the Developer and the Agency, or any of them, hereunder or contemplated hereby, and each party shall be responsible for its own costs, excluding provisions of this Agreement which specifically survive the termination of this Agreement. (d) 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. 12.06. 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 encumbrances imposed by this Agreement. (b) The certificate described in subsection (a) shall be prepared in a form suitable for recording and promptly after execution by all of the parties hereto shall be recorded in the public records of Pinellas County, Florida. The cost of recording the termination certificate shall be paid by the terminating party. 12.07 Remedies. All remedies provided for herein and under Florida law shall be cumulative and shall survive the technical termination of this Agreement pursuant to execution, delivery and recordation of a Termination Certificate or otherwise hereunder. ARTICLE 13. UNAVOIDABLE DELAY. 13.01. Unavoidable Delay. (a) Any delay in performance of or inability to perform any obligation under this Agreement (other than an obligation to pay money) due to any event or condition described in paragraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in this Section 13.01. (b) "Unavoidable Delay" means any of the following events or conditions or any combination thereof: acts of God, acts of the public enemy, riot, insurrection, war, pestilence, archaeological excavations required by law, unavailability of materials after timely ordering of same, building moratoria, discovery and remediation of previously unidentified environmental contamination discovered after the Closing Date, epidemics, quarantine restrictions, freight embargoes, fire, lightning, hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement weather (as indicated by the records of the local weather bureau for a five -year period preceding the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73 and 74, Florida Statutes, restoration in connection with any of the foregoing or any other cause beyond the reasonable control of the party performing the obligation in question, including, without limitation, such causes as may arise from the act of the other party to this Agreement, or acts of any governmental authority (except that acts of the Agency shall not constitute an Unavoidable Delay 32 with respect to performance by the Agency). (c) An application by any party hereto (referred to in this paragraph (c) and in paragraph (d) as the "Applicant ") for an extension of time pursuant to subsection (a) must be in writing, must set forth in detail the reasons and causes of delay, and must be filed with the other party to this Agreement within thirty (30) days following the occurrence of the event or condition causing the Unavoidable Delay or thirty (30) days following the Applicant becoming aware (or with the exercise of reasonable diligence should have become aware) of such occurrence. (d) The Applicant shall be entitled to an extension of time for an Unavoidable Delay only for the number of days of delay due solely to the occurrence of the event or condition causing such Unavoidable Delay and only to the extent that any such occurrence actually delays that party from proceeding with its rights, duties and obligations under this Agreement affected by such occurrence. ARTICLE 14. FIRE OR OTHER CASUALTY; CONDEMNATION. 14.01. Loss or Damage to Project. If economically reasonable as determined by Developer, the Developer covenants and agrees to diligently commence and complete the reconstruction or repair of any Toss 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 to substantially the same as existed prior to the occurrence of such loss or damage. Any reconstruction or repair of any loss or damage to the Project shall be to the standards, design, plans and specifications of the original construction unless any change therefrom is approved by the Agency. 14.02. Partial Loss or Damage to Project. 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 reasonably unusable for the use contemplated by 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 Agreement, subject to an extension of time for an Unavoidable Delay. 14.03. Notice of Loss or Damage to Project. 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. If the Developer determines the Project cannot be repaired or restored in an economically justifiable or other manner, then the Developer shall so notify the Agency and state reasons supporting its determination. 14.04. Subject to Financing. The Developer's obligations under this Article 14 are subject to the terms and conditions of the Construction Financing or any other mortgage financing in effect at the time any such obligations hereunder would otherwise be applicable. ARTICLE 15. MISCELLANEOUS. 15.01. Assignments. (a) (1) Prior to the earlier of the Termination Date or the Expiration Date, the Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Project, or any part thereof to any person with the prior written consent of the Agency, which shall not be unreasonably withheld, provided that such party (hereinafter referred to as the "assignee "), to the extent of the sale, conveyance, assignment or other disposition by the Developer to the assignee, shall be bound by the terms of this Agreement the same as the Developer for such part of the Project as is subject to such sale, conveyance, assignment or other disposition, except for the sale of a condominium in the ordinary course of business. (2) If the assignee of Developer's right, title, interest and obligations in and to the Project, or any 33 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, limited liability company, general partnership, or joint venture, in which the Developer 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 for the term of this Agreement shall not be deemed an assignment or transfer subject to any restriction on or approvals of assignments or transfers imposed by this Section 15.01, provided, however, that notice of such assignment shall be given by the Developer to the Agency no less than thirty (30) days prior to such assignment being effective and the assignee shall be bound by the terms of this Agreement to the same extent as would the Developer in the absence of such assignment. If the Developer shall at any time withdraw or be replaced as a general partner or no longer have the controlling interest or management rights as described in this subsection, then that event shall constitute an assignment of the Developer's right, title, interest or obligations under this Agreement for purposes of this Section 15.01 and the prior approval of the Agency shall be obtained before such an event shall be effective. 15.02. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the Agency, and its successors and assigns, and the Developer, and its successors and assigns, except as may otherwise be specifically provided herein. 15.03. Notices. (a) All notices, demands, requests for approvals or other communications given by either party to another shall be in writing, and shall be sent by registered or certified mail, postage prepaid, return receipt requested or by overnight courier service, or by hand delivery to the office for each party indicated below and addressed as follows: To the Developer: Prospect Park Development, LLC c/o Prospect Real Estate Group, LLC 477 Commerce Way, Suite 115 Longwood, Florida 32750 Attention: Frank Tetel, Vice President with copies to: Leigh Kellett Fletcher, Esquire Fletcher & Fischer, P.L. 801 E. Kennedy Blvd. Suite 802 Tampa, Florida 33602 Forge Development Group, LLC 102 West Whiting Street Suite 600 Tampa, Florida 33602 Attention: Robert Moreya and Peter H. Collins To the Agency: Community Redevelopment Agency of the City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attention: Rod Irwin with copies to: City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attention: City Attorney (b) Notices given by courier service or by hand delivery shall be effective upon deposit with the courier or delivery service. Notices given by overnight delivery company shall be deemed received on the first (1St) business day after deposit with the overnight delivery company. Notices given by mail shall be deemed received 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 15.03. The addresses to which notices are to be sent 34 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. 15.04. Severability. If any term, provision or condition contained this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision or condition to persons or circumstances other than those in respect of which it is invalid or unenforceable, shall not be affected thereby, and each term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 15.05. Applicable Law and Construction. The laws of the State of Florida shall govern the validity, performance and enforcement of this Agreement. This Agreement has been negotiated by the Agency and the Developer, and the Agreement, including, without limitation, the Exhibits, shall not be deemed to have been prepared by the Agency or the Developer, but by all equally. 15.06. Venue; Submission to Jurisdiction. (a) For purposes of any suit, action or other proceeding arising out of or relating to this Agreement, the parties hereto do acknowledge, consent and agree that venue thereof is Pinellas County, Florida. (b) Each party to this Agreement hereby submits to the jurisdiction of the State of Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States District Court for the Middle District of Florida, for the purposes of any suit, action or other proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of a motion as a defense or otherwise that such action is brought in an inconvenient forum or that the venue of such action is improper or that the subject matter thereof may not be enforced in or by such courts. (c) If, at any time during the term of this Agreement, the Developer is not a resident of the State of Florida or has no office, employee, agency, registered agent or general partner thereof available for service of process as a resident of the State of Florida, or if any permitted assignee thereof shall be a foreign corporation, partnership or other entity or shall have no officer, employee, agent, or general partner available for service of process in the State of Florida, the Developer hereby designates the Secretary of State, State of Florida, its agent for the service of process in any court action between it and the Agency arising out of or relating to this Agreement and such service shall be made as provided by the laws of the State of Florida for service upon a non - resident; provided, however, that at the time of service on the Florida Secretary of State, a copy of such service shall be delivered to the Developer at the address for notices as provided in Section 15.03. 15.07. Agreement Not a Chapter 86 -191, Laws of Florida, Development Agreement. The Developer and the Agency acknowledge, agree and represent that this Agreement, including, without limitation, any of the Exhibits, is not a development agreement as described in Sections 19 -31, Chapter 86 -191, Laws of Florida, codified as Sections 163.3220- 163.3243, Florida Statutes. 15.08. 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 15.08 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. 15.09. Complete Agreement; Amendments. (a) This Agreement, and all the terms and provisions contained herein, including without limitation the 35 Exhibits hereto, constitute the full and complete agreement between the parties hereto to the date hereof, and supersedes and controls over any and all prior agreements, understandings, representations, correspondence and statements whether written or oral, including the RFP and the Proposal. (b) Any provisions of this Agreement shall be read and applied in para materia with all other provisions hereof. (c) This Agreement cannot be changed or revised except by written amendment signed by all parties hereto. 15.10. 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. 15.11. 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. 15.12. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not physically attached hereto shall be treated as if they are part of this Agreement. 15.13. No Brokers. The Agency and the Developer hereby represent, agree and acknowledge that no real estate broker or other person is entitled to claim or to be paid a commission as a result of the execution and delivery of this Agreement, including any of the Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any or all of the Project Site, specifically including the conveyance of the Project Site by the Agency to the Developer. 15.14. Not an Agent. During the term of this Agreement, the Developer hereunder shall not be an agent of the City or the Agency, with respect to any and all services to be performed by the Developer (and any of its agents, assigns, or successors) with respect to the Project, and the Agency is not an agent of the Developer (and any of its agents, assigns, or successors). 15.15. Memorandum of Development Agreement. The Agency and the Developer agree to execute, in recordable form, on the Effective Date, the short form "Memorandum of Agreement for Development and Purchase and Sale of Property," the form of which is attached hereto as Exhibit "D," and agree, authorize and hereby direct such Memorandum to be recorded in the public records of Pinellas County, Florida, as soon as possible after execution thereof. The Agency shall pay the cost of such recording. 15.16. 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. 15.17. No General Obligation. In no event shall any obligation, express or implied, 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. 15.18. Technical Amendments; Survey Corrections. In the event that due to minor inaccuracies contained herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to changes resulting from technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances 36 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. 15.19. Term; Expiration; Certificate. (a) If not earlier terminated as provided in Section 12.05, the term of this Agreement shall expire and this Agreement shall no longer be of any force and effect (except for those matters which specifically survive such expiration) on the tenth anniversary of the Effective Date. (b) Upon completion of the term of this Agreement, all parties hereto shall execute the Agreement Expiration Certificate. The Agreement Expiration Certificate shall constitute (and it shall be so provided in the certificate) a conclusive determination of satisfactory completion of all obligations hereunder and the expiration of this Agreement; provided, however, and notwithstanding the foregoing provisions of this Section 15.19. (c) The Agreement Expiration Certificate shall be in such form as will enable it to be recorded in the public records of Pinellas County, Florida. Following execution by all of the parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer in the public records of Pinellas County, Florida, and the Developer shall pay the cost of such recording. 15.20. Effective Date. Following execution of this Agreement (and such of the Exhibits as are contemplated to be executed simultaneously with this Agreement) by the authorized officers of the Agency and by authorized representatives of the Developer following approval hereof by the Agency and the Developer this Agreement (and any executed Exhibits) shall be in full force and effect in accordance with its terms and upon the recording of the Memorandum of Agreement for Development and Purchase and Sale of Property as contemplated by Section 15.15 hereof. 15.21. Cooperation of City. The City of Clearwater, a municipal corporation, has joined in this Agreement for the sole purpose of reflecting its agreement to cooperate and support the Agency in meeting the obligations of the Agency as set forth in this Agreement, including without limitation, conveyance, at least thirty (30) days prior to the Closing Date, of that portion of the Property currently owned by the City to the Agency, the grant of easements over City property required for construction of the Project pursuant to approved Plans and Specifications, and the entry into the Park Access Agreement attached hereto as Exhibit "K ". 15.22 Ownership of Development Related Intellectual Property. The Developer shall have the right to develop and market the Project under a name or names selected by Developer. Ownership of trademarked names or other intellectual property associated with Developer's development and marketing of the Project shall be retained by the Developer in the event of termination or expiration of this Agreement. [SIGNATURE PAGES FOLLOW] 37 IN WITNESS WH EOF, the parties hereto have set their hands and their respective seals affixed as of the 10 day of ` u , 2014. Approved as to form: Attest: 1L amela K. Akin Attorney for Community Redevelopment Agency STATE OF FLORIDA ) COUNTY OF PINELLAS ) AGENCY COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA —qec 1ef\Crte(Cas By: Rosemarie Call City Clerk Chairperson C) , zz ifCi f 0i;NTE •' 1.1T4 7. ' /i,,,4 tli mO ��0 The foregoing instr men was acknowledged before me this i day of 2014, by C'10W1'T, 1(ekjt_(,) S , Chairperson of the Community Redevelopment Agency, who is personally known to me. (1 iRT11sAI Print/Type Name Notary Public 38 •.....YP1j , AnneMarie Wills e_ COMMISSION # EE 843159 W EXPIRES: NOV, 24, 2016 Wp;�.•` WWW.AARONNOTARY.com STATE OF FL COUNTY OF DEVELOPER PROSPECT PARK DEVELOPMENT, LLC a Florida limited liability company By: FDG — Prospect Park Development, LLC a Florida limited liability company its Operating Manager By ~ be0- fPUY (dt -- Its: WO /IaGj�'1/ Name: The for irlg instrument was acknowledged before me this 'W K V� !ii (, '� as / l�G day of la fJ 2014, by {i7 i? P fijo PV of F Prospect Real Estate Group, LL, the Operating Manager of Prospect Park Development, LLC, a Florida limited liability company, on behalf of the company.�1 he is personally_ known to me or who produced as identification. ' pros"', SARA L DELANEY `* Notary Publk - State o1 Florida My Comm. Expires Jun S. 2017 ,°, Commission ii EE 874131 ••� °F " --/ Bonded Through National Notary Assn. Bunn,.. Countersigned: ctpprie4C(.4\445 Mayor Ap o ed as t form: I4 Pamela K. Aki City Attorney STATE OF FLORIDA ) COUNTY OF Pri ype �/ Notary Public CITY Name: CITY OF CLEARWATER FLORIDA, a municipal corporation of the State of Florida Ali if' Rosemarie Call City Clerk T S for goin instrument was acknowledged before me this Ule\ day of �, 2014, by Or q _r.e vQ� as LAC1 I, 0 of the City of Clearwater, a municipal corporation of the State of Florida. He /she is personally known to me or [ ] has produced the following as identification: 39 ". °. AnneMarie Wilis. s ?` "=_ coma ISSION#EE843159 15" a: ,,�,... '� EXPIRES: NOV. 24, 2016 WWW.AARONNOTARY.com EXHIBIT A 'Project Site Description and Map] BEGINNING AT THE SOUTHEAST CORNER OF LOT 11, BLOCK 2, MAGNOLIA PARK SUBDIVISION, AS RECORDED IN PLAT BOOK 3, PAGE 43 PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA, SAID POINT ALSO BEING ON THE BOUNDARY LINE OF MEDITERRANEAN VILLAGE IN THE PARK SUBDIVISION AS RECORDED IN PLAT BOOK 125, PAGES 44 THROUGH 46, PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA, THENCE ALONG THE BOUNDARY LINE OF SAID MEDITERRANEAN VILLAGE IN THE PARK, THE FOLLOWING THREE COURSES: SOUTH 00 °02'16" WEST, 8.16 FEET; THENCE NORTH 89 °57'44" WEST, 21.42 FEET; THENCE SOUTH 00 °17'21" WEST, 52.12 FEET TO A POINT ON THE SOUTH RIGHT OF WAY LINE OF PARK STREET; THENCE LEAVING THE SAID BOUNDARY LINE OF MEDITERRANEAN VILLAGE IN THE PARK AND ALONG THE SAID SOUTH RIGHT OF WAY LINE OF PARK STREET, SOUTH 89 °39'49" EAST 288.90 FEET TO A POINT ON THE WEST RIGHT OF WAY LINE OF SOUTH MARTIN LUTHER KING, JR. AVENUE; THENCE LEAVING THE SAID SOUTH RIGHT OF WAY LINE OF PARK STREET AND ALONG THE SAID WEST RIGHT OF WAY LINE OF SOUTH MARTIN LUTHER KING, JR. AVENUE, SOUTH 00 °04'00" WEST 264.88 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF PIERCE STREET; THENCE LEAVING THE SAID WEST RIGHT OF WAY LINE OF SOUTH MARTIN LUTHER KING, JR. AVENUE AND ALONG THE SAID NORTH RIGHT OF WAY LINE OF PIERCE STREET AND THE EXTENSION THEREOF, NORTH 89 °39'04" WEST 386.83 FEET; THENCE LEAVING THE SAID EXTENSION OF THE NORTH RIGHT OF WAY LINE OF PIERCE STREET, NORTH 05 °34'56" WEST 61.39 FEET; THENCE NORTH 15 °56'32" WEST, 122.03 FEET; THENCE NORTH 29 °12'41" WEST, 115.70 FEET; THENCE NORTH 53 °04'15" WEST, 52.08 FEET; THENCE NORTH 89 °54'47" WEST, 252.52 FEET TO A POINT ON THE EAST RIGHT OF WAY LINE OF SOUTH PROSPECT AVENUE; THENCE ALONG THE SAID EAST RIGHT OF WAY LINE OF SOUTH PROSPECT AVENUE, NORTH 00 °0513" EAST, 251.17 FEET TO A POINT ON THE SOUTH RIGHT OF WAY LINE OF CLEVELAND STREET, SAID POINT BEING THE NORTHWEST CORNER OF TRACT 2 OF SAID MEDITERRANEAN VILLAGE IN THE PARK; THENCE LEAVING THE SAID EAST RIGHT OF WAY LINE OF SOUTH PROSPECT AVENUE, ALONG THE SAID SOUTH RIGHT OF WAY LINE OF CLEVELAND STREET, SOUTH 89 041120" EAST, 647.02 FEET TO A POINT ON THE WEST LINE OF THE EAST 50 FEET OF BLOCK 5, MRS. SARAH MCMULLEN'S SUBDIVISION, AS RECORDED IN PLAT BOOK 1, PAGE 41, PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; THENCE LEAVING THE SAID SOUTH RIGHT OF WAY LINE OF CLEVELAND STREET, ALONG THE SAID WEST BOUNDARY LINE OF THE EAST 50 FEET OF BLOCK 5, SOUTH 00 °03'59" WEST, 235.00 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF PARK STREET; THENCE LEAVING THE SAID WEST BOUNDARY LINE OF THE EAST 50 FEET OF BLOCK 5, ALONG THE SAID NORTH RIGHT OF WAY LINE OF PARK STREET, NORTH 89 °41'20" WEST, 137.10 FEET TO THE POINT OF BEGINNING. CONTAINING 279,998 SQUARE FEET (6.428 ACRES) MORE OR LESS. 40 EXHIBIT B JProposed Site Plan] 41 12 13 D - DOWNTOWN CBD - CENTRAL BUSINESS DISTRICT CLEVELAND STREET ASPlialr PAVEMENT 589-A3'20 "8 $4702 (F)....._ RS EITa1Rl T 7 — — 0189'41'20" 137.10(F) SITE PLAN NOTES: I. ALL DIMENSIONS SHOWN ARE TO FACE OF CURB. 2. EXISTING IMPROVEMENTS SHOWN ARE TAKEN FROM BOUNDARY 8 TOPOGRAPHIC SURVEY PREPARED BY DEDEL 6 ASSOCIATES. 3. BUILDING ANDSIDEWALK DIMENSIONS ARE TO OUTSIDE EWE OF STRUCTURE ABOVE GROUND. 4. ALL TIES TO E PROPERTY LINE ARE BASED ON THE BOUNDARY d TOPOGRAPHIC SURVEY. 5. INSTALL ISOLATION JOINTS WHERE EDGE OF ASPHALT PAVEMENT ABUTS CONCRETE DRIVEWAYS ALONG EWE OF CURB LINES ABUTTING CONCRETE PAVEMENT, ALONG WE OF SIDEWALKS ABUTTING CONCRETE PAVEMENT, AROUND ALL STORM INLETS MANHOLES, VALVE BOXES AND BOLLARDS (ABOVE GROUND APPURTENANCES. COORDINATE W/ ARCHITECTURAL PLANS FOR ISOLATION JOINTS ADJACENT TO BUILDING EWES. 6. SEE GENERAL NOTE SHEET FOR MAINTENANCE OF TRAFFIC NOTES. T. ALL MECHANICAL EQUIPMENT SHALL BE SCREENED IN ACCORDANCE WITH CITY OF CLEARWATER REQUIREMENTS. 8. SITE CONTRACTOR TO SUBMIT FIVE (5) COPIES OF AS- SUILTS THAT ARE SIGNED AND SEALED.' A PROFESSIONAL SURVEYOR REG. IN THE STATE OF FLORIDA PRIOR TO ANY C.O. BEING ISSUED. PUBLIC WORKS/ ENGINEERING TO FIELD INSPECT AS.BUILTS FOR ACCURACY. 9. SITE CONTRACTOR TOSCHEDULE A PRESITE INSPECTION PRIOR TO ISSUANCE OF A BUILDING PERMIT. CALL THE ENGINEERING DEPARTMENT AT 727502 -4750 AT LEAST 24 HOURS PRIOR TO THE APPOINTMENT. 10. SITE CNTRACTOR'. ANY /ALL EASEMENT(S) SHALL BE OBTAINED (RECORDED) PRIOR TO A C O. BEING ISSUED FOR THE BUILDING(S). PLEASE CONTACT CHUCK LANE, REAL ESTATE SERVICE COORDINATOR AT 727862 -4750. 11. SITE CONTRACTOR TO PROVIDE RECORDED NOTICE OF COMMENCEMENT PRIOR TO ISSUANCE OF PERMIT. 12. SITE NOTES APPLY TO ALL SHEETS WHERE APPLICABLE. 13. BASE FLOOD ELEVATION FOR THE SITE IS 3.0 FT. 14. REFER TO HORIZONTAL CONTROL PLAN FOR CURVE AND LINE TABLES. 15. REFER TO PAVING, GRADING, AND DRAINAGE PUNS AND POND CROSS SECTIONS FOR STORMWATER POND DESIGN. 16. REFER TO PAVING, GRADING, AND DRAINAGE PLANS FOR CURB TRANSITIONS WITHIN ISLANDS ADJACENT TO PROPOSED SIDEWALKS. 0189°50 47 0 252.52(F). 0153{34 l5'W_i 52.013(F) EXISTING STORMWATER MANAGEMENT POND RaR1 -PE NG 34'S8 ") 01.39(F) N9.39 Gd W 23;8' flirF sc PIERCE STREET .v D - DOWNTOWN CBD - CENTRAL BUSINESS DISTRICT 0 40' 9 9 12 19 iH BEST OF THE PPOIRECTS OR ENDNEERS MONIED. MO MHO( IH PUNSAND NATIONS WAP.YWOH THE AWIICAOF • ef,an L. Zarkn9 Baker Barrios IODENMRON STREET, SURF 100 TAMPA SAMOA 33401 813.511 ,1900 INICCILAKOWARIOLCOPI BNCERI RBIDS.COM CLEVELAND STREET REDEVELOPMENT PROSPECT LAKE PARK SITE PROSPECT REAL ESTATE GROUP CLEARWATER, FL 33614 PROSPECT I "op� t51ATE MASTER SITE PLAN PROMO' NO 130001.00 SC3.00 LEGEND Tr HC HANDICAP RADIUS 4/W RIGHT- OF.WAY © N OF PARKING SPACES , TRAFFIC FLOW (PAINTED MARKINGS) .R PROPOSED STREET LIGHT PROPOSED BOLLARD LIGHT 63 HANDICAP PARKING TYPES' PROPOSED CURB - — -— PROPERTY LINE EXISTING EWE OF PAVEMENT SETBACK LINE RETAINING WALL PROPOSED CONCRETE 'i EXISTING CONCRETE PROPOSED ASPHALT PAVEMENT ILIGMT DUtt -SEE DETAIL) =r/ITXEDABPHALi PAVEMENT L_) (FIEAW DUtt � SEE DETAL) PROPOSED POROUS PAVEMENT 05-09-2019 COB Submittal ] 01-30,019 FDA Submittal I ]DP 1.2 01162014 Informal CIIABUbHIa5lelVreulew u 2 TOP 910 1 12- 13.2013 Informal City submiakn /review e1 3 K No. Date e a ns /SUbmBalens D.1 G. iH BEST OF THE PPOIRECTS OR ENDNEERS MONIED. MO MHO( IH PUNSAND NATIONS WAP.YWOH THE AWIICAOF • ef,an L. Zarkn9 Baker Barrios IODENMRON STREET, SURF 100 TAMPA SAMOA 33401 813.511 ,1900 INICCILAKOWARIOLCOPI BNCERI RBIDS.COM CLEVELAND STREET REDEVELOPMENT PROSPECT LAKE PARK SITE PROSPECT REAL ESTATE GROUP CLEARWATER, FL 33614 PROSPECT I "op� t51ATE MASTER SITE PLAN PROMO' NO 130001.00 SC3.00 PuS 10 10 12 13 14 OL it 0051CLW ` 1(f) ,TOF ENC. CLEVELAND STREET PO' PUBLIC RICHF —OF —WAY ASPHALT- FAVEVE, S89°41'20 "E 647.02'(FL _.� ' R 4,000 USE r CONCRETE a3CEWALIE e'CONCREII SIDEWALK EL 10' CORC 6W N89 °54'47 "W 252.52 F) 0 �� J / N53 °,04'15 "W / // 52.08(F) , , EXISTING STORMWATER MANAGEMENT POND IY PVC FENCE AORWCE W/ CITY O R CLEARWATER CODE J \ • t \ 3 01 0 301 COB submittal F. Submittal BLZ 1031 BIZ 01.10.2114 Flamm! y s bmlulonfmiew 43 30P No. Cote Informal City submissIonfreview a1 Revisions f Swmnalana ECT90NENOINEERS SPECI VWNE IMF AMr bbliARwt CODES. N NF MHIG &E ( )c9/dno TBE N5 °34'56 "W ,..I 31.39(F) Baker Barrios BLZ 100 E MANSON STREET, St TANPti KOREA 33003 11lF 100 eta. SN. 1000 INFOGRAKERBARRICCCOM SAKE EARRO ICOM CLEVELAND STREET REDEVELOPMENT PROSPECT LAKE PARK SITE PROSPECT REAL PROSPECT ESTATE GROUP CLEARWATER FL 33614 SITE PLAN 1 PROJECT NO.: 130001.00 SC3.01 CLEVELAND STREET SO• PUBLIC RIGHT —OF —WAY ASPHALT PAVEMENT S89'41'20 "E 647,02'(F� 920 CONCS/N 50.00'(09F) SOLO WAE2 F B 1,7]0 USF 110,333 Total USF 14014 LDING 0 'B' - 4 2,455 USF 1,748 USF Y° SCREENED IN CE WI CITY EP CL TERCDDE MEN —M PVC FENCE W KCCOADANCE YR CITY OF C1LAI WATER CODE N89 "41.20 "r f137 10(F) GATED MX /NNOX NOTCH AND EA NAMUR FOR / FIRE UM a. CONCRETE NIOEWALN _/ N5 34'56 "W 61.39(F) PIERCE STREET 0 . 1457, P0. 524 si T-O• PVC FENCE IN ACCORDANCE 00' PUBLIC TIGHT —OF —WAY WI CRY OF CLEARWATER CODE S. MARTIN LUTHER KING JR. AVENUE (F) 13 14 six 10 4 OS-09-2014 CD. submittal lOP 3 01-30-2014 FDA Submittal 7D3 B. 2 01 1s 2014 Informal c I7 FwmIsslonf,<.!<w n2 1D0 NLz 1 12-13.2013 Inro.m<! CBS <Nbm2sslon /reW<w AI IDA B. < 51,1,0n1 / Submissions TOTH BEST OF TxEARCNRECP3 OP ENGINEERS SPECI !CATIONS OA POMNI HTHE /WOMB. ASIMUKABLIILDHO CODES Cardno T8E Baker Barrios A.40001151 • 1.024000417 01-30.2014 100 E MOWN * sun 5E0T. TU 100 TAMPA FIOO 5 DA 3X02 013.549.1900 194300011AKNILA0.0100.031 9URRBANUO .CDM CLEVELAND STREET REDEVELOPMENT PROSPECT LAKE PARK SITE PROSPECT REAL ESTATE GROUP CLEARWATER, FL 33614 f ROS CT1.13 "TE SITE PLAN 2 PROJECT NO 130001.00 SC3.02 EXHIBIT C SPECIAL WARRANTY DEED COMMUNITY REDEVELOPMENT AGENCY, also known as THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, a body politic and corporate of the State of Florida created pursuant to Part III, Ch. 163 Fla. Stat., whose address is 112 S. Osceola Avenue, Clearwater, Florida 33756, hereinafter called the GRANTOR, for and in consideration of Ten and 00/100 Dollars ($10.00), and other valuable consideration the receipt of which is hereby acknowledged, does bargain, sell, convey and grant unto PROSPECT PARK DEVELOPMENT, LLC, a Florida limited liability company, whose address is 477 Commerce Way Suite 115, Longwood, Florida 32750 hereinafter called The GRANTEE, the federal tax identification number of which is: , its successors and assigns forever, the real property, situate, lying and being in Pinellas County, Florida, more particularly described in EXHIBIT "A" attached hereto. TAX PARCEL I.D. # Subject to taxes for current year and to those matters listed in EXHIBIT "B" attached hereto. TO HAVE AND TO HOLD unto the said GRANTEE, its successors and assigns forever, and said GRANTOR warrants and shall defend the title against the lawful claims of all persons claiming by, through, or under it, but against none other. TOGETHER with all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining. IN WITNESS WHEREOF, GRANTOR has caused these presents to be executed in its name by its Chairman this day of , 2014. [SIGNATURE PAGE FOLLOWS] C -1 42 COMMUNITY REDEVELOPMENT AGENCY ATTEST: OF THE CITY OF CLEARWATER By: Executive Director Chairman WITNESSES (as to all signatures): Printed Name: Printed Name: STATE OF FLORIDA COUNTY OF PINELLAS The foregoing SPECIAL WARRANTY DEED was acknowledged before me this day of 2014, by , as Chairman, and ROD IRWIN, as the Executive Director of the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, a body politic and corporate, on behalf of said entity. Such persons are personally known to me or presented as identification. My Commission Expires: My Commission Number: C -2 43 Notary Public, State of Florida EXHIBIT D MEMORANDUM OF AGREEMENT FOR DEVELOPMENT AND PURCHASE AND SALE OF PROPERTY This Memorandum of Agreement for Development and Purchase and Sale of Property ( "Memorandum ") is made this _ day of , 2014, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency "), whose address is 112 S. Osceola Avenue, Clearwater, FL 33756, and PROSPECT PARK DEVELOPMENT LLC, a Florida limited liability company, whose address is 477 Commerce Way, Suite 115, Longwood, Florida 32750. This Memorandum pertains to an Agreement for Development and Purchase and Sale of Property, by and between the Agency and the Developer, dated as of , 2014, (the "Development Agreement "), which provides, among other things, for the sale of property within a project site as described in Exhibit "A" attached hereto and made a part hereof for the development and construction of the Project, as same is 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 hereby ratify, approve and confirm the Development Agreement as a matter of public notice and record. Nothing herein shall in any way affect or modify the Development Agreement, nor shall the provisions of this Memorandum be used to interpret the Development Agreement. In the event of conflict between the terms of this document and those contained in the Development Agreement, the terms in the Development Agreement shall control. A copy of the fully- executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the day of , 2014. [SIGNATURE PAGE FOLLOWS] D -1 44 Memorandum of Development Agreement Prospect Park Development LLC COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER By: Exec tive Director ` Chairman STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this day of , 2014, by , as Chairman, and ROD IRWIN, as the Executive Director of the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, a body politic and corporate, on behalf of said entity. Such persons are personally known to me or presented as identification. My Commission Expires: My Commission Number: Notary Public, State of Florida PROSPECT PARK DEVELOPMENT, LLC a Florida limited liability company By: FDG — Prospect Park Development, LLC a Florida limited liability company its Operating Manager By: Name: Its: STATE OF FLORIDA ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2014, by , as of FDG - Prospect Real Estate Group, LLC, the Operating Manager of Prospect Park Development, LLC, a Florida limited liability company, on behalf of the company. He /She is personally known to me or who produced as identification. Print/Type Name: Notary Public D -2 45 EXHIBIT E AGREEMENT EXPIRATION CERTIFICATE This Agreement Expiration Certificate ( "Certificate ") is made this _ day of , , by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency "), whose address is 112 S. Osceola Avenue, Clearwater, FL 32521, and PROSPECT PARK DEVELOPMENT, LLC, a Florida limited liability company ( "Developer"), whose address is 477 Commerce Way, Suite 115, Longwood, Florida 32750. This Certificate pertains to an Agreement for Development and Purchase and Sale of Property, by and between the Agency and the Developer, dated as of , 2014, (the "Development Agreement "), which provides, among other things, for the sale of property within a project site as described in Exhibit "A" attached hereto and made a part hereof for the development and construction of the Project, as same is defined in the Development Agreement. The Development Agreement has expired in accordance with its own terms as of 20 , and is no longer of any force or effect, and the Project site is no longer subject to any restriction, limitation, or encumbrance imposed by the Development Agreement. This Certificate has been executed by the parties to the Development Agreement as provided in Section 15.19 thereof and constitutes a conclusive determination of satisfactory completion of all obligations under such Agreement and that the Development Agreement has expired, except for those matters which survive as noted above. A copy of the fully- executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the _ day of [SIGNATURE PAGE FOLLOWS] E -1 46 COMMUNITY REDEVELOPMENT AGENCY ATTEST: OF THE CITY OF CLEARWATER By: Executive Director Chairman STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this day of , 2014, by , as Chairman, and as the Executive Director of the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, a body politic and corporate, on behalf of said entity. Such persons are personally known to me or presented as identification. Notary Public, State of Florida My Commission Expires: My Commission Number: PROSPECT PARK DEVELOPMENT, LLC a Florida limited liability company By: FDG — Prospect Park Development, LLC a Florida limited liability company its Operating Manager By: Name: Its: STATE OF FLORIDA ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2014, by , as of FDG - Prospect Real Estate Group, LLC, the Operating Manager of Prospect Park Development, LLC, a Florida limited liability company, on behalf of the company. He /She is personally known to me or who produced as identification. Print/Type Name: Notary Public E -2 47 EXHIBIT F ESCROW AGREEMENT THIS ESCROW AGREEMENT ( "Escrow Agreement ") is made and entered into on , 2014, by and among the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida ( "Agency "), PROSPECT PARK DEVELOPMENT, LLC, a Florida limited liability company ( "Developer "), and FLETCHER & FISCHER, P.L. ( "Escrow Agent "). WITNESSETH: WHEREAS, pursuant to its Request for Proposals, dated February 19, 2013, the Agency has tentatively accepted the proposal of Developer in response thereto, subject to negotiation of a definitive Development and Purchase and Sale Agreement with Developer ( "Agreement ") setting forth the terms and conditions by which Developer may develop and purchase from Agency the real property more particularly described on Exhibit "A" attached hereto and incorporated herein ( "Property "); WHEREAS, Developer has agreed to deposit the sum of two hundred fifty thousand and 00/100 Dollars ($250,000.00) (the "Escrowed Funds ") in escrow with the Escrow Agent as security for Developer's good faith negotiation of the Agreement and which shall become the security deposit required under the terms of the Agreement should the Agreement be executed; WHEREAS, Escrow Agent is an Attorney at Law in the State of Florida, is independent of Developer and is duly qualified to act as escrow agent; WHEREAS, the parties have requested that the Escrow Agent act as escrow agent in accordance with the terms of this Escrow Agreement and Escrow Agent has agreed to do so. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The above recitals are true and correct and are incorporated herein by reference. 2. Deposit of Funds. Simultaneously with the execution of this Escrow Agreement, Developer has delivered one hundred and twenty -five thousand dollars ($125,000.00) to the Escrow Agent and it is anticipated that the balance of the security deposit will be delivered to the Escrow Agent in accordance with the terms of the Agreement. Escrow Agent hereby acknowledges receipt of the Escrowed Funds and agrees to hold same in escrow for the parties under the terms of this Escrow Agreement. All funds held in escrow shall be placed in an interest - bearing account, with interest accruing to the benefit of Developer. The Escrowed Funds shall be applied to the purchase price of the Property as set forth in the Agreement ( "Purchase Price ") at closing, unless Developer is in default under the Agreement, in which event the interest shall be paid to the Agency, or unless this Escrow Agreement is terminated pursuant to Section 3(d) hereof. 3. Disbursement of Funds from Escrow. The Escrowed Funds shall be disbursed as follows: (a) Unless otherwise disbursed as provided herein, the Escrowed Funds and shall be paid to Agency at closing and shall be credited to the Purchase Price. F -1 48 (b) In the event the parties enter into the Agreement and either party is in default under the terms of the Agreement, within fifteen (15) days after receipt of notice of such default given by the non - defaulting party to Escrow Agent with copies to all parties set forth in Section 7 hereof, expiration of all notice and cure periods set forth in the Agreement and receipt of all wiring instructions or other documentation necessary to deliver the Escrow Funds, Escrow Agent shall promptly deliver the Escrowed Funds, and all accrued interest thereon, to the party entitled to the Deposit in accordance with the terms of the Agreement. (c) If a conflict shall have arisen as to the default described in subparagraph (b) above, upon receipt by the Escrow Agent of (i) joint written instructions signed by Developer and by the Agency directing payment of all or a portion of the Escrowed Funds, or (ii) a final judgment or order of a court of competent jurisdiction directing the payment of all or a portion of the Escrowed Funds held hereunder, the Escrow Agent shall promptly deliver to the person or persons specified, out of the escrow created hereunder and in the manner specified in the instructions, judgment or order, the amount or amounts of Escrowed Funds specified in such instructions, judgment or order, and the Escrow Agent shall thereupon be relieved and discharged from any responsibility or obligation with respect to such amount or amounts of the Escrowed Funds delivered in accordance with this Agreement. (d) Notwithstanding the provisions of subparagraph (c) above, in the event a dispute should arise regarding the Escrowed Funds, the Escrow Agent shall have the right, in its sole discretion, to deposit with the registry of any State court located in the Pinellas County, Florida, the amount remaining in escrow. In such a case, the Escrow Agent shall implead Developer and the Agency in any such action filed with the court. 4. (a) Except as set forth in this Escrow Agreement or as may be agreed to in writing by Developer, Agency and Escrow Agent, Escrow Agent shall have no obligation to take any action or perform any act other than to receive and hold the Escrowed Funds and to disburse same in accordance with the terms and conditions of this Escrow Agreement. (b) Escrow Agent agrees to perform the duties herein required of it to the best of its ability and in such manner that the interests of Developer and Agency may be adequately and effectively protected. Escrow Agent shall not be answerable, liable or accountable except for its own bad faith, willful misconduct or negligence. (c) Escrow Agent shall not be under any obligation to take any action toward the execution or enforcement of the rights or interests of Developer or Agency under the Agreement, whether on its own motion or on the request of any other person or entity, whether or not a party hereto. Escrow Agent is authorized to act on any document believed by it in good faith to be genuine and to be executed by the proper party or parties, and will incur no liability by so acting. Agency and Developer agree to indemnify and hold harmless Escrow Agent from any and all claims, actions, damages, demands and judgments from or to Agency, Developer, or third parties, arising out of any act or omission of Agency or Developer and not caused by bad faith, willful misconduct or negligence of Escrow Agent. (d) Escrow Agent shall be obligated to perform only such duties as are herein set forth, and no implied duties or obligations shall be read into this Escrow Agreement. (e) Should Escrow Agent receive or become aware of conflicting demands or claims with respect to this Escrow Agreement, the Escrowed Funds or the rights of any party hereto, Escrow Agent shall be entitled to refuse to comply with any such demand or claim, and in the event of such demand or claim, Escrow Agent shall deliver the Escrowed Funds to the registry of the appropriate court, whereupon Escrow Agent shall be relieved of any further duties or obligations hereunder. 5. This Escrow Agreement is to be performed in the State of Florida and shall be governed by and construed in accordance with the laws of the State of Florida. F -2 49 6. This Escrow Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto, provided that Escrow Agent shall not assign its rights, duties or obligations hereunder in whole or in part without the prior written consent of the Agency and Developer, and any such assignment without said consent shall be void. 7. All notices hereunder shall be deemed delivered (a) on the date of delivery, if hand delivered, (b) three (3) days after deposit, if sent by United States registered or certified mail, postage prepaid, addressed to the parties at the respective addresses shown below, (c) on the date of dispatch, if sent by Federal Express, UPS or other over -night courier, or (d) on the date of transmission if sent by fax, but only if a notice by fax is accompanied by another method permitted hereunder; in any event in accordance with the address set forth below, provided, however, the parties may, by like notice, designate any further or different addresses to which subsequent notices shall be sent: To Escrow Agent: Fletcher & Fischer, P.L. Attn: Leigh K. Fletcher, Esquire 801 E. Kennedy Blvd., Suite 802 Tampa, FL 33602 Fax: 727 - 898 -2838 To Agency: Community Redevelopment Agency of the City of Clearwater Attn: Rod Irwin 112 South Osceola Avenue Clearwater, Florida 33756 Fax: (727) 562 -4052 With copy to: Pamela K. Akin, Esquire City of Clearwater 112 South Osceola Avenue Clearwater, Florida 33756 Fax: (727) 562 -4021 To Developer: Prospect Park Development, LLC Attention: Frank Tetel, Vice President 477 Commerce Way Suite 115 Longwood, Florida 32750 Fax: (407) 926 -0815 With copy to: Leigh Kellett Fletcher, Esquire Fletcher & Fischer, P.L. 501 E. Kennedy Blvd. Suite 802 Tampa, FL 33602 Fax: (813) 898 -2838 With Copy to: Forge Development Group, LLC 102 West Whiting Street Suite 600 Tampa, Florida 33602 Attention: Robert Moreya and Peter H. Collins 8. if any clause, provision or section of this Escrow Agreement shall be ruled invalid or unenforceable by any court of competent jurisdiction, the invalidity or unenforceability or such clause, provision or section shall not affect any of the remaining clauses, provisions or sections hereof. F -3 50 9. This Escrow Agreement contains all of the escrow instructions to Escrow Agent and shall not be modified or supplemented without the written approval of Agency, Developer and Escrow Agent. 10. All personal pronouns used in this Escrow Agreement whether used in the masculine, feminine or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. 11. Developer and Agency hereby authorize, direct and request Escrow Agent to invest and reinvest the Escrowed Funds in such savings accounts, certificates of deposit, repurchase obligations, money- market funds or such other forms of investments as the Escrow Agent may determine in its sole discretion. 12. This Escrow Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument and all of such counterparts shall constitute one and the same agreement. 13. Time is of the Essence of this Escrow Agreement. IN WITNESS WHEREOF, Developer, Agency and Escrow Agent acting by and through their respective duly authorized and empowered officers and representatives, have executed and sealed this Escrow Agreement the day and year first written. Approved as to form: Attest: Pamela K. Akin City Attorney AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA By: Chairperson City Clerk F -4 51 DEVELOPER: PROSPECT PARK DEVELOPMENT, LLC a Florida limited liability company By: FDG — Prospect Park Development, LLC a Florida limited liability company its Operating Manager By: Name: Its: ESCROW AGENT: By: F -5 52 EXHIBIT G SURVEY REQUIREMENTS The Survey shall comply with the following requirements which may be in addition to the requirements of Florida Administrative Code, Rule No. 21 HH -6. 1. Field Note Description. The Survey shall contain a certified metes and bounds description and shall comply with the following requirements: (i) The beginning point, which should be established by a monument located at the beginning point, or by reference to a nearby monument, shall be shown. (ii) The boundary of the Property shall be described by giving the distances and bearings of each. (iii) The distances, bearings, and angles shall be taken from a recent instrument survey, or recently recertified instrument survey, by a licensed Professional Engineer or Registered Surveyor. (iv) Curved sides shall be described by data including length of arc, central angle, radius of circle for the arc and chord distance, and bearing. (v) The legal description shall be a single perimeter description of the entire Property. (vi) The description shall include a reference to all streets, alleys, and other rights -of -way that abut the Property surveyed, and the width of all rights -of -way mentioned shall be given the first time these rights -of -way are referred to. (vii) If the Property surveyed has been recorded on a map or plat as part of an abstract or subdivision, reference to such recording data shall be made. 2. Lot and Block Description. If the Property is included within a properly established, recorded subdivision or addition, then a lot and block description will be an acceptable substitute for a metes and bounds description, provided that the lot and block description shall completely and properly identify the name or designation of the recorded subdivision or addition and give the recording information therefor. 3. Map or Plat. The Survey shall also contain a certified map or plat showing and identifying the following: (i) All of the distances, bearings, angles and curves used in the legal description. (ii) The relation of the point of beginning of said plot to the monument from which it is fixed. (iii) Any discrepancies between the map or plat and the description. (iv) All easements showing recording information therefor by volume and page. (v) The established building line, if any. G -1 53 (vi) All easements appurtenant to the Property. (vii) The boundary line of the street or streets abutting the Property, the width of said streets, and whether each street is dedicated or private. (viii) Ingress and egress to the Property by the name of street(s) or road(s) upon which the Property fronts, the same being a paved and dedicated public right - of -way; and the name of the governmental entity which maintains the same. (ix) Encroachments and the extent thereof in terms of distance upon the Property or any easement appurtenant thereto. 4. Improvements. The Survey shall also show all structures and improvements on the Property with horizontal lengths of all sides, and the distance from such structures and improvements to (a) all boundary lines of the Property, (b) easements, (c) established building lines, and (d) street lines. 5. Certification. The certification for the Property description and the map or plat should be addressed to Buyer, any lender involved in the transaction contemplated hereby, FLETCHER & FISCHER, P.L. and to the interested title company, if required by the title company, signed by the surveyor, bearing current date, registration number, and sealed and returned to FLETCHER & FISCHER, P.L., 501 E. Kennedy Blvd Suite 802, Tampa Florida 33602 in order that it be received along with the seven (7) copies of the survey no later than twenty (20) days prior to Closing. The Survey shall contain the following certificate: G -2 54 SURVEYOR'S CERTIFICATE This survey is made for the benefit of and I hereby certify that this survey: (1) was made on the ground as per the field notes shown hereon, and correctly shows the boundary lines and dimensions, area of the Property indicated hereon and each individual parcel indicated hereon; (2) (3) delineates all lot lines, shows the location and dimension of all buildings, structures, improvements, parking areas, and any other matters on the Property; correctly shows the location and dimensions of all alleys, streets, roads, rights -of- way, easements, and other matters of record, or which are visible, of which the undersigned has been advised or as indicated in that certain Title Insurance Commitment issued by as Commitment No. , affecting the Property according to the legal description in such easements and other matters (with instrument, book, and page number indicated); and except as shown, there are no easements, rights -of- way, party walls, or conflicts, and there are no encroachments on adjoining premises, streets, or alleys by any of said buildings, structures, or other improvements, and there are no encroachments on the Property by buildings, structures, or other improvements situated on adjoining premises; and the distance of the nearest intersecting street and road is as shown hereon; (4) shows the means of access and location of all adjoining streets; and that ingress and egress to the Property is provided by [name(s) of street(s) or road(s)] upon which the Property fronts, the same being a paved and dedicated public right -of- way maintained by [governmental authority maintaining right -of -way]; (5) shows the zoning and land use designations of the Property; (6) shows the flood zone designation of the Property, and the community name and parcel number where the information was obtained; (7) shows the location of the coastal construction control line and seasonal high -water line, as defined in Florida Statutes §161.053 (1985), if applicable; and (8) shows the location of any wetlands by which the Department of Environmental Regulation of the State of Florida and /or the Army Corps of Engineers has or may exercise jurisdiction pursuant to the Warren S. Henderson Wetlands Protection Act of 1984, the Federal Water Pollution Control Act Amendments of 1972 and the Clean Water Act. I do further certify that: (1) the Property does not serve any adjoining property for drainage, ingress, and egress, or any other purpose; G -3 55 (2) the street address of the Property is: ; and (3) the Property and all improvements located thereon comply with all dimensional and other requirements of the applicable zoning district; and the use upon the Property is permitted by the zoning and land use designations; (4) the total square -foot area, or acreage to the nearest one one - thousandth (1/1000) of an acre, of the Property is: ; and (5) that the survey represented hereon meets the requirements of the Florida Statutes §472.027 and the minimum requirements under Florida Administrative Code, Rule No. 21HH-6. By: Registration No. (Affix Seal) EXHIBIT "K" PARK ACCESS AGREEMENT THIS AGREEMENT is made this day of , 2014, by and between THE CITY OF CLEARWATER, a municipal corporation of the State of Florida ( "City ") and PROSPECT PARK DEVELOPMENT, LLC, a Florida limited liability company ( "Developer "). WHEREAS, Developer has acquired title to the real property described in Exhibit "A" (the "PROSPECT PROPERTY ") hereto and is developing that property pursuant to a development agreement dated , 2014 ( "Development Agreement ") by and between Developer and COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida created pursuant to Part III, Chapter 163, Florida Statutes, for which a Memorandum of Agreement for Development and Purchase and Sale of Property is recorded in O.R. Book , Page , in the public records of Pinellas County, Florida; and WHEREAS the PROSPECT PROPERTY is located adjacent to a public park and stormwater treatment facility owned by the City; and WHEREAS the development plans for the PROSPECT PROPERTY include access to the development on the PROSPECT PROPERTY from the sidewalks constructed within the public park and access to the park by the general public during business hours through a retail plaza to be constructed on the PROSPECT PROPERTY; and WHEREAS, the City and the Developer desire to memorialize the rights of access by entering into this Agreement. NOW THEREFORE, the parties agree, as follows: 1. GATED ENTRIES ONTO PARK SIDEWALK PERMITTED. Access shall be provided to the public park sidewalk via the gate located along the PROSPECT PROPERTY boundary and between Buildings C and D, between the hours of 9:00 am and 6:00 pm. 2. ACCESS TO PARK THROUGH RETAIL PLAZA. Access shall be provided to the public park via a gate located within the retail plaza on the PROSPECT PROPERTY and located between Buildings A and B, between the hours of 9:00 am and 6:00 pm. [SIGNATURE PAGES FOLLOW] K -1 57 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year first above written. Signed, Sealed and Delivered in the Presence Of: DEVELOPER: PROSPECT PARK DEVELOPMENT, LLC, a Florida limited liability company Sign: By: FDG- Prospect Park Development, LLC a Florida limited liability company, Print: its Operating Manger Sign: By: Print: Name: Its: STATE OF FLORIDA ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2014, by , as of FDG - Prospect Real Estate Group, LLC, the Operating Manager of Prospect Park Development, LLC, a Florida limited liability company, on behalf of the company. He /Shen is personally known to me or who produced as identification. Print/Type Name: Notary Public K -2 58 Countersigned: Mayor Approved as to form: Pamela K. Akin City Attorney STATE OF FLORIDA ) COUNTY OF CITY: CITY OF CLEARWATER FLORIDA, a municipal corporation of the State of Florida By: By: Rosemarie Call City Clerk The foregoing instrument was acknowledged before me this day of , 2014, by as of CITY OF CLEARWATER, a municipal corporation of the State of Florida. He /she [ ] is personally known to me or [ ] has produced the following as identification: Notary Public K -3 59 EXHIBIT L COMPLETION CERTIFICATE [PROSPECT PARK] This Completion Certificate ( "Certificate ") is made this _ day of by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the "Agency "), whose address is 112 S. Osceola Avenue, Clearwater, FL 32521, and PROSPECT PARK DEVELOPMENT, LLC, a Florida limited liability company (the "Developer "). This Certificate pertains to an Agreement for Development and Purchase and Sale of Property ( "Prospect Lake "), by and between the Agency and the Developer, dated as of , 2014 (the "Development Agreement "), which provides, among other things, for the development and construction of the Prospect Park Project, within a project site as described in Exhibit "A" attached hereto and made a part hereof, as same are defined in the Development Agreement. As provided in Article 7 of the Development Agreement, the construction and installation of the Prospect Park Project has been completed substantially in accordance with the requirements of the Development Agreement and such improvements are substantially complete. The parties hereto acknowledge and agree that such Project has been so completed and have executed this Certificate as conclusive determination of such completion and satisfaction of the Developer's obligation under the Development Agreement to construct and install such Project. A copy of the fully- executed Development Agreement is on file with the City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which is available for review and copying by the public. A copy of the Prospect Park Project Plans and Specifications is on file with the City Engineer, City of Clearwater, Florida, located at Municipal Services Building, 100 S. Myrtle Avenue, Clearwater, Florida, which is available for review and copying by the public. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the _ day of [SIGNATURE PAGE FOLLOWS] L -1 60 Approved as to form: Pamela K. Akin City Attorney STATE OF FLORIDA ) COUNTY OF ) COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA By: Attest: Rod Irwin Executive Director Rosemarie Call City Clerk PROSPECT PARK DEVELOPMENT, LLC a Florida limited liability company By: FDG — Prospect Park Development, LLC a Florida limited liability company its Operating Manager By: Name: Its: The foregoing instrument was acknowledged before me this day of 2014, by , as of FDG - Prospect Real Estate Group, LLC, the Operating Manager of Prospect Park Development, LLC, a Florida limited liability company, on behalf of the company. He /She is personally known to me or who produced as identification. Print/Type Name: Notary Public L -2 61 EXHIBIT M [CORRESPONDENCE BETWEEN CITY OF CLEARWATER AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ] 62 Lopez, Geraldine Campos From: Sent: To: Subject: Chesney, Ed Friday, March 07, 2014 11:02 AM Lopez, Geraldine Campos FW: Clearwater From: Rosen, Bob [ma ilto: Rosen .Bo bCc�epa.goy] Sent: Monday, February 03, 2014 12:19 PM To: Chesney, Ed Subject: RE: Clearwater Ed My management thinks it would not be appropriate for the Agency (me) to make the type of statement you are hoping for. It would be more appropriate for such to come from the FLDEP Brownfields program since that's the entity which would have authority to issue those comments and make those determinations. I'm not sure DEP would even weigh in on this since it was an assessment and not a cleanup. Please keep in mind that there must be hundreds or even thousands of private BF sites (sites not tied to BF grants) nationwide where reuse determinations are based on results obtained through contractors /consultants (such as UR5) and without further regulatory review. Your grant has expired. There really isn't a need for EPA "approval ". Now on the issue of the I6 investigation and Region 4's desire to perform sampling in Clearwater.......I have no clue if my upper management really cares to return to Clearwater. I think your information supports our assertions that there's no reason to perform more sampling, but I can't imagine anyone in HQ coming out and making that statement until this whole issue has been resolved and put to bed. Unfortunately, I don't have a clue if /when the I6 issue will terminate so for now carry on with your plans and don't worry about what we may or may not need. As for me, I will say that the work performed for you by UR5 appears to be totally consistent with industry (and Agency) standards and should provide the City of Clearwater with confidence in existing site conditions. Any future land use considerations should rely on that analytical basis and absolutely not on the I6 results. I can't say the I6 results don't potentially reflect site conditions but their total absence of adherence to Agency QA /QC policy makes their results invalid and they should be discarded, never considered, particularly in Tight of your subsequent work. Hope this helps a little. I will certainly keep you posted if anything changes. Bob From: Ed.Chesney @myClearwater.com [ mailto :Ed.Chesney@myClearwater.com] Sent: Thursday, January 30, 2014 10:37 AM 1 CITY OF CLEARWATER Kr 13111( 1 I3ti\ 4-48. C1.1.110.; .NII It, I'1()KI M 33758_i -iS Nti vK 1111 Sh.K1u 1 I3111,�nti�.. 100 S,ITn! NISIC111 AirNr1:,S1 III' 220.CIfAK1c11iu,F1(4411)1 33756 1l l'n,\1 (727) 562- 1-'5() 1:‘‘ (727) 562 -4755 t:�td \1 r:Ki' I)rV1111 ln NI January 17, 2014 Mr. Bob Rosen EPA Region 4 Brownfields Program 61 Forsyth Street SW Atlanta GA 30303 Subject: Office of Inspector General (010) Response Dear Mr, Rosen, Bob, as f mentioned to you during our telephone conversation last month, the City of Clearwater (City) has undertaken substantial work at the St. Vincent DePaul site since receipt of your email dated August 14, 2013. In that email, you advised the City that the Inspector General (10) had performed soil sampling at several properties owned by the City, including the St. Vincent DePaul site located at 1015 Cleveland Street, Clearwater, Florida. With respect to the St. Vincent DePaul site, you advised me that the ICI's office had collected four soil samples, the results of which allegedly identified the presence of antimony, arsenic, barium and vanadium above State of Florida soil cleanup target levels (SCTI_,$), as set forth in 62 -777, Florida Administrative Cade. In response to questions from the City, you indicated that EPA was unable to confirm that the [G's sampling protocol followed any EPA- established protocol. Delivery of the results of the IG's sampling data created an immediate concern for the City. At the time of the IG's entry onto the St. Vincent DePaul site, the City was engaged in very active negotiations with a prospective purchaser for the beneficial redevelopment of this vacant commercial parcel. Those negotiations are continuing but have been slowed a bit due to receipt of the IG's data. Notwithstanding the lack of any evidence that the IG's data was properly collected, the City was compelled to retain a consultant to immediately evaluate the conditions reportedly identified by the IG's sampling data in order to address the understandable concerns that would be raised by any prospective purchaser. In October 2013, the City's consultant, URS, mobilized to the St. Vincent DePaul site for the purpose of collecting confirmation soil samples at the locations provided by EPA to the City for the previous samples collected by the IG. Four soil samples were collected by URS at the same locations reported by the 10 and were sent for laboratory analysis for antimony, arsenic, barium and vanadium using EPA Method 6010. Only arsenic was identified above the residential SCTL in any of the four samples; arsenic was not present in any of the soil samples above the commercial /industrial SCTL. 'EV raia•i „s'4 \I H L ■It ,>r, tl .,. Etia� Mr. Bob Rosen January 17, 2014 Page 2 of 3 Concentrations of antimony, barium, and vanadium were not detected in any of the lour soil samples above residential SCTi,s. Based on the results of that sampling effort, additional soil samples were collected from the St. Vincent DcPaul site by URS in November 2013. At that time, soil samples were collected from eleven locations in an effort to delineate the extent of arsenic impacts in surface soils above residential SC "1'I,s. The soil samples collected in November 2013 were analyzed for arsenic by EPA Method 6010. None of the eleven soil samples collected in November 2013 contained arsenic above the residential SCTL. Attached is a signed and sealed Phase 11 Environmental Site Assessment Report (Phase 11 Report), dated January 2014, prepared by URS. The Phase 1I Report describes, in detail, the soil sampling events performed by URS at the St. Vincent DePaul site in October and November 2013. The report also provides detail of the sampling protocols employed by URS for each sampling event. A copy of the fit!! laboratory reports for the two ,sampling events is also included in the Phase II Report. Contrary to the unverifiable data collected by the 10, the results of the work performed by URS in 2013 at the St. Vincent DePaul site clearly establish that antimony, barium and vanadium are not present in surface soils at concentrations above residential SC'I'Ls. The data properly collected by URS also show that arsenic is not present on the St. Vincent DePaul site above commercial/industrial SCTLs and that residential SCTLs for arsenic are only exceeded at two discrete locations on the site. The attached Phase II Report obviates the need for any additional sampling by any party at the St. Vincent DePaul site. Because of the adverse impact that receipt of the unverifiable IG's soil sampling data has had on negotiations with the prospective purchaser, we are requesting your prompt review of the attached Phase 11 Report and confirmation that no further sampling is required by EPA. We appreciate your continued cooperation in this matter. If you have any questions following your receipt and review of this email and the attached Phase II Report, please feel free to contact me at any time. We can include URS in any follow -up conversation, if EPA so desires. You've also requested permission to collect soil samples at the Blue Chip Bar and Clearwater Auto Salvage sites. It is our understanding that the purpose of such sampling is to evaluate the validity of data generated by the IG during its previous sampling performed on these two sites. It is the City's understanding that these two sites were sampled by the 1G using the same protocol as was used on the St. Vincent DePaul site. I'm sure that EPA has performed its own internal review of the methods employed by the IG at these two sites. It is our expectation that the results of such a review would have concluded that the IG's data is incapable of validation based, in part, on the absence of any evidence that the 10 followed any acceptable protocol for the collection and analyses of soil samples from the sites, coupled with a cornplete absence of any quality control data and a quality assurance project plan. To the contrary, the sampling performed on behalf of the City at the St. Vincent DePaul site followed acceptable protocol, and was performed in accordance with a quality assurance project plan in compliance with Florida Department of Environmental Protection guidelines. Since the data generated by URS for the St. Vincent DePaul site establishes that the IG's data is not valid, firther sampling at the Blue Chip Bar and Clearwater Auto Salvage sites does not appear warranted. Mr. Bob Rosen January 17, 2014 Page 3 of 3 The City remains prepared to discuss this matter further with EPA should you so desire. I may be reached at (727) 562 -4742. Thank you in advance for your prompt review of this transmittal. Sincerely, Ed Chesney, P.H. Environmental Manager City of Clearwater PHASE II ENVIRONMENTAL SITE ASSESSMENT REPORT ST. VINCENT DE PAUL PROPERTY 1015 CLEVELAND STREET CLEARWATER, FLORIDA JANUARY 2014 PHASE II ENVIRONMENTAL SITE ASSESSMENT REPORT ST. VINCENT DE PAUL PROPERTY 1015 CLEVELAND STREET CLEARWATER, FLORIDA JANUARY 2014 PREPARED FOR: The City of Clearwater 100 South Myrtle Avenue, #220 Clearwater, Florida 33756 PRESENTED BY: URS Corporation 7650 West Courtney Campbell Causeway Tampa, Florida 33607 (813) 286 -1711 Job Number 12011545.00001 PREPARED BY: REVIEWED BY: Thomas J. Carberry Senior Project Manager 602935338.1 Edwin W. Siersema, Jr. P.G. Vice President, Manager Waste Management Group TABLE OF CONTENTS 1.0 INTRODUCTION 1 2.0 BACKGROUND AND OBJECTIVE 1 2.1 SITE DESCRIPTION 1 2.2 SUMMARY OF PREVIOUS ACTIVITIES 1 2.3 OBJECTIVE 2 3.0 FIELD ACTIVITIES 2 4.0 RESULTS AND DATA EVALUATION 3 5.0 CONCLUSIONS 3 LIST OF FIGURES Figure 1 Figure 2 Soil Sample Location Map Extent of Arsenic Impacted Soill LIST OF TABLES Table 1 Summary of Soil Analytical Results LIST OF APPENDICES Appendix A Preliminary Soil Assessment Report, St. Vincent de Paul Property, October 2013 R: \WASTE\20131Projects \City of Clearwater — St. Vincent de Paul 120115451Reports \Phase [1 ESA Report.doc 1 602935338.1 1.0 INTRODUCTION URS Corporation Southern (URS) was retained by the City of Clearwater (City) to conduct a Phase II Environmental Site Assessment (ESA) at the St. Vincent de Paul property (subject property) located at 1015 Cleveland Street in Clearwater, Florida. The City is the current owner of the subject property. The City has been negotiating with a third party for the sale of the subject property. In 2013, the Inspector General of the Environmental Protection Agency performed soil sampling on the subject property that reportedly identified elevated concentrations of antimony, arsenic, barium, and vanadium at some surface soil sample locations. As a result of this data, the City committed to undertake a more detailed surface soil investigation in order to facilitate the sale of the subject property. This Phase II ESA Report describes field work performed by URS to properly evaluate surface soil quality using appropriate sampling and laboratory analytical protocols. This Report includes the site background, a description of field activities, an evaluation of analytical data, and conclusions. This Phase II ESA was conducted in accordance with the scope of work presented in URS' Work Order Initiation Form dated October 30, 2013. 2.0 BACKGROUND AND OBJECTIVE 2.1 SITE DESCRIPTION The St. Vincent de Paul property is located on the south side of Cleveland Street and approximately 100 feet west of South Martin Luther King, Jr. Avenue. The subject property encompasses approximately one acre of land and includes a 16,000 square foot concrete block structure. Asphalt -paved parking areas and planters are located on the west side of the property. The subject property was recently used as a thrift store. Previously, the property had been used as an automobile dealership and automobile repair facility. A map depicting the subject property is presented in Figure 1. 2.2 SUMMARY OF PREVIOUS ACTIVITIES URS conducted a preliminary assessment of shallow soil quality at the subject property on October 2, 2013. Soil samples were collected at four locations (SV -SB -1 through SV -SB -4) as shown on Figure 1. At each location, soil samples were collected using pre - cleaned, stainless steel hand augers. Soil samples were collected from land surface to approximately six inches R: \WASTE\2013\Projects \City of Clearwater — St. Vincent de Paul 12011545\Reports\Phase II ESA Report.doc 1 602935338.1 below land surface using the five point composite method that were spaced approximately five feet apart. Each soil aliquot was placed in a stainless steel bowl and thoroughly mixed. The soil samples were analyzed for antimony, arsenic, barium, and vanadium using EPA Method 6010. Concentrations of antimony, arsenic, barium, and vanadium in soil samples SV -SB -3 and SV- SB-4 were non - detectable or below the residential and leachability soil cleanup target levels (SCTLs), as established in Chapter 62 -777, Florida Administrative Code. Soil samples collected at locations SV -SB -1 and SV -SB -2 contained arsenic at concentrations of 3.8 milligrams per kilogram (mg/kg) and 5.3 mg/kg, respectively. The concentrations of arsenic in these two samples exceeded the residential SCTL (2.1 mg /kg), but were below the commercial /industrial SCTL (12 mg /kg). Concentrations of antimony, barium, and vanadium in soil samples SV -SB -1 and SV -SB -2 were non - detectable or below residential and leachability SCTLs. Based on these findings, URS recommended further evaluation of arsenic concentrations in the unsaturated portion of soil at the subject property. The results of this investigation were presented in a Preliminary Soil Assessment Report dated October 2013. A copy of the Preliminary Soil Assessment Report is provided in Appendix A. 2.3 OBJECTIVE The objective of this investigation was to further evaluate concentrations of arsenic metals in unsaturated soil at the subject property. 3.0 FIELD ACTIVITIES URS conducted field activities on November 18, 2013. Soil samples were collected at eleven boring locations (SV -SB -5 through SV- SB -15) on the subject property as shown in Figure 1. At each boring location, a Geoprobe drill rig was used to penetrate asphalt covered areas. Discrete soil samples were then collected with stainless steel hand augers. Sampling equipment was decontaminated between soil boring locations. At each boring location, discrete soil samples were collected from land surface to six inches below land surface (0 — 0.5 feet), six inches to two feet below land surface (0.5 — 2.0 feet), and two feet to four feet below land surface (2.0 — 4.0 feet). At a depth of approximately 4.0 feet below land surface, the surficial aquifer was encountered and soil was damp to saturated. The soil samples were placed in laboratory supplied containers, labeled, and immediately placed in R:IWASTE12013Wrojects \City of Clearwater — St. Vincent de Paul 120115451Reports'Phase II ESA Report.doc 2 602935338.1 ice - filled coolers. Chain -of- Custody forms were completed and the samples were delivered to Pace Analytical Services, Inc., for analysis. The soil samples were analyzed for arsenic using U.S. EPA Method 6010. 4.0 RESULTS AND DATA EVALUATION A summary of soil analytical results is provided in Table 1. Soil analytical results were compared to residential and commercial/industrial SCTLs. Concentrations of arsenic in soil samples collected at the three depth intervals from borings SV- SB-8 through SV -SB -12 and SV -SB -15 were non - detectable. Concentrations of arsenic in soil samples collected from the remaining five boring locations (SV -SB -5, SV -SB -6, SV -SB -7, SV- SB-13, and SV- SB -14) were non - detectable or below the residential SCTL of 2.1 mg /kg. 5.0 CONCLUSIONS Based on the results of this Phase II ESA, it appears that concentrations of arsenic above the residential SCTL appears to be limited to the upper six inches of soil in the areas in the immediate vicinity of boring locations SV -SB -1 and SV -SB -2. Concentrations of arsenic in soil samples collected at three intervals from land surface to the top of the water table from eleven borings were non - detectable or below the residential SCTL. The approximate extent of soil impacted with arsenic at the subject property is shown in Figure 2. R: \WASTE\2013\Projects\City of Clearwater — St. Vincent de Paul 12011545\Reports \Phase 1I ESA Report.doc 3 602935338.1 FIGURES 602935338.1 N CMS bt, • SV SB -10 URS 7650 W Courtney Campbell Cswy, Suite 700 Tampa, Florida 33607 Ph: (813) 286 -1711 Fax: (813) 286 -6587 Florida Engineering Number: 000002 LEGEND Soil Sample Location L__J Property Boundary Soil Sample Location Map ST. VINCENT de PAUL 1015 CLEVELAND STREET CLEARWATER, FLORIDA PROJECT NO. 12001466 DESN/ APVD BH/TC DATE 01/15/2014 FIGURE NO. 1 Approximate extent of arsenic at concentrations greater than residential soil cleanup target level 0 30 60 120 Feet URS 7650 W Courtney Campbell Cswy, Suite 700 Tampa, Florida 33607 Ph: (813) 286 -1711 Fax: (813) 286 -6587 Florida Engineering Number: 000002 LEGEND Soil Sample Location , Property Boundary Extent of Arsenic Impacted Soil ST. VINCENT de PAUL 1015 CLEVELAND STREET CLEARWATER, FLORIDA PROJECT NO. 12001466 DESN /APVD BH/TC DATE 01115/2014 FIGURE NO. 2 TABLES 602935338.1 SV -SB -8 11/18/13 - V. 0.26 (U) 0.5 - 2.0 0.36 (U) 2.0 - 4.0 SV -SB -9 11/18/13 0 - 0.5 0.5 - 2.0 2.0 - 4.0 SV -SB -10 11/18/13 0 - 0.5 0,5 - 2.0 2.0 - 4.0 SV -SB -11 11/18/13 0 -0.5 0.5 - 2.0 2.0 - 4.0 S V -SB -12 11/18/13 0 - 0.5 0.5 - 2.0 2.0 - 4.0 SV -SB -13 11/18/13 0 - 0.5 0.5 - 2.0 0.30 (U) 0.26 (U) 0.26 (U) 0.31 (U) 0.32 (U) 0.30 (U) 0.26 (U) 0.26 (U) 0.29 (U) 0.27 (U) 0.25 (U) 0.26 (U) 0.31 (U) 0.27 (U) 2.0 - 4.0 SV -SB -14 11/18/13 0 - 0.5 0.5 - 2.0 0.27 (I) 0.31 (U) 0.28 (U) 2.0 - 4.0 SV -SB -15 11/18/13 0 - 0.5 0.5 - 2.0 2.0 - 4.0 SOIL CLEANUP TARGET LEVELS(I) Residential 0.29 (I) 0.29 (U) 0.27 (U) 0.32 (U) 0.29 (U) 2.1 Commercial/Industrial 12 Leachability * NOTES: mg/kg - milligrams per kilogram 0.26 (U) - Detection Limit (Not Detected) 0.39 (I) - Estimated Concentration (I) - Table II - Soil Cleanup Target Levels (SCTL), Chapter 62 -777, Florida Administrative Code * - Leachability value may be derived using synthetic precipitate leaching procedure to calculate site - specific SCTLs. R: \WASTE120131Projects \City ofClearwater\St. Vincent de Paul1Tables\Table I Soil Analytical Phase II ESA.doc TABLE 1 SUMMARY OF SOIL ANALYTICAL RESULTS ST. VINCENT DE PAUL PROPERTY 1015 CLEVELAND STREET CL EARWATER, FLORIDA SAMPLE LOCATION DATE DEPTH (feet) ARSENIC (mg/kg) SV -SB -1 10/2/13 0 - 0.5 3.8 SV -SB -2 10/2/13 0 - 0.5 5.3 SV -SB -3 10/2/13 0 - 0.5 0.78 SV -SB -4 10/2/13 0 - 0.5 1.4 SV -SB -5 11/18/13 0 -0.5 0.39(I) 0.5 - 2.0 0.26 (U) 2.0 -4.0 0.31 (U) SV -SB -6 1 1/18/13 0 - 0.5 0.64 0.5 - 2.0 0.30 (U) 2.0 - 4.0 0.32 (U) SV -SB -7 11/18/13 0 - 0.5 0.55 0.5 - 2.0 0.36 (I) 2.0 - 4.0 0.44 (I) SV -SB -8 11/18/13 - V. 0.26 (U) 0.5 - 2.0 0.36 (U) 2.0 - 4.0 SV -SB -9 11/18/13 0 - 0.5 0.5 - 2.0 2.0 - 4.0 SV -SB -10 11/18/13 0 - 0.5 0,5 - 2.0 2.0 - 4.0 SV -SB -11 11/18/13 0 -0.5 0.5 - 2.0 2.0 - 4.0 S V -SB -12 11/18/13 0 - 0.5 0.5 - 2.0 2.0 - 4.0 SV -SB -13 11/18/13 0 - 0.5 0.5 - 2.0 0.30 (U) 0.26 (U) 0.26 (U) 0.31 (U) 0.32 (U) 0.30 (U) 0.26 (U) 0.26 (U) 0.29 (U) 0.27 (U) 0.25 (U) 0.26 (U) 0.31 (U) 0.27 (U) 2.0 - 4.0 SV -SB -14 11/18/13 0 - 0.5 0.5 - 2.0 0.27 (I) 0.31 (U) 0.28 (U) 2.0 - 4.0 SV -SB -15 11/18/13 0 - 0.5 0.5 - 2.0 2.0 - 4.0 SOIL CLEANUP TARGET LEVELS(I) Residential 0.29 (I) 0.29 (U) 0.27 (U) 0.32 (U) 0.29 (U) 2.1 Commercial/Industrial 12 Leachability * NOTES: mg/kg - milligrams per kilogram 0.26 (U) - Detection Limit (Not Detected) 0.39 (I) - Estimated Concentration (I) - Table II - Soil Cleanup Target Levels (SCTL), Chapter 62 -777, Florida Administrative Code * - Leachability value may be derived using synthetic precipitate leaching procedure to calculate site - specific SCTLs. R: \WASTE120131Projects \City ofClearwater\St. Vincent de Paul1Tables\Table I Soil Analytical Phase II ESA.doc APPENDIX A PRELIMINARY SOIL ASSESSMENT REPORT ST. VINCENT DE PAUL PROPERTY OCTOBER 2013 602935338.1 PRELIMINARY SOIL ASSESSMENT REPORT ST. VINCENT DE PAUL PROPERTY 1015 CLEVELAND STREET CLEARWATER, FLORIDA OCTOBER 2013 PRELIMINARY SOIL ASSESSMENT REPORT ST. VINCENT DE PAUL PROPERTY 1015 CLEVELAND STREET CLEARWATER, FLORIDA OCTOBER 2013 PREPARED FOR: The City of Clearwater 100 South Myrtle Avenue, #220 Clearwater, Florida 33756 PRESENTED BY: URS Corporation 7650 West Courtney Campbell Causeway Tampa, Florida 33607 (813) 286-1711 Job Number 12011466.00001 PREPARED BY: Thomas J. Carberry Senior Project Manager REVIEWED BY: Edwin W. Siersema, Jr. P.G. Vice President, Manager Waste Management Group TABLE OF CONTENTS 1.0 INTRODUCTION 1 2.0 BACKGROUND AND OBJECTIVE 1 2.1 SITE DESCRIPTION 1 2.2 OBJECTIVE 1 3.0 FIELD ACTIVITIES 1 4.0 RESULTS AND DATA EVALUATION 2 5.0 CONCLUSIONS AND RECOMMENDATIONS 3 LIST OF FIGURES Figure 1 Soil Sample Location Map LIST OF TABLES Table 1 Summary of Soil Analytical Results LIST OF APPENDICES Appendix A Photographs Appendix B Laboratory Report and Chain -of- Custody Form R:\WASTE120131Projects\City of Clearwater —St. Vincent de Paul 12011466\Reports \Soil Assessment Report.doc 1 1.0 INTRODUCTION URS Corporation Southern (URS) was retained by the City of Clearwater to conduct a preliminary assessment of shallow soil quality at the St. Vincent de Paul property (subject property) located at 1015 Cleveland Street in Clearwater, Florida. This Preliminary Soil Assessment Report includes the site background, a description of field activities, an evaluation of analytical data, conclusions, and recommendations. This Preliminary Soil Assessment Report was conducted in accordance with the scope of work presented in URS' Work Order Initiation Form dated September 30, 2013. 2.0 BACKGROUND AND OBJECTIVE 2.1 SITE DESCRIPTION The St. Vincent de Paul property is located on the south side of Cleveland Street and approximately 100 feet west of South Martin Luther King, Jr. Avenue. The subject property encompasses approximately one acre of land and includes a 16,000 square foot concrete block structure. Asphalt -paved parking areas and planters are located on the west side of the property. The subject property was recently used as a thrift store. Previously, the property had been used as an automobile dealership and automobile repair facility. A map depicting the subject property and surrounding area is presented in Figure 1. 2.2 OBJECTIVE The objective of this investigation was to evaluate concentrations of select metals in shallow soil samples at the subject property. For data comparison purposes, background soil samples were collected at two locations. 3.0 FIELD ACTIVITIES URS conducted field activities on October 2, 2013. Soil samples were collected at four locations (SV -SB -1 through SV -SB -4) on the subject property as shown in Figure 1. Soil samples at locations SV -SB -1 and SV -SB -2 were collected from planters located on the north and west side R:\WASTE \2013\Projects \City of Clearwater — St. Vincent de Paul I20114661Reports \Soil Assessment Report.doc 1 of the property, respectively. Soil samples SV -SB -3 and SV -SB -4 were collected along the chain -link fence and adjacent to the asphalt -paved parking lot. Photographs of the sample locations are provided in Appendix A. Soil samples were also collected at two background locations as shown in Figure 1. One background sample (LS -SB -1) was collected along the right -of -way adjacent to a vacant parcel of land located at the northwest corner of the intersection of Laura Street and S. Martin Luther King, Jr., Avenue. The second background sample (PL -SB -1) was collected at a man -made peninsula located on the west site of Prospect Lake. At each location, soil samples were collected using pre- cleaned, dedicated stainless steel hand augers. Soil samples were collected from land surface to approximately six inches below land surface using the five point composite method that were spaced approximately five feet apart. Each soil aliquot was placed in a stainless steel bowl and thoroughly mixed. The soil samples were placed in laboratory supplied containers, labeled, and immediately placed in an ice -filled cooler. A Chain -of- Custody form was completed and the samples were delivered to Pace Analytical Services, Inc., for analysis. The soil samples were analyzed for the following metals using U.S. EPA Method 6010: Antimony Barium Arsenic Vanadium For quality assurance /quality control purposes, an equipment blank was collected using laboratory- supplied analyte free deionized water. This equipment blank was analyzed for the parameters listed above. 4.0 RESULTS AND DATA EVALUATION A summary of soil analytical results is provided in Table 1 and the complete laboratory report and Chain -of- Custody form are provided in Appendix B. Soil analytical results were compared to residential, commercial /industrial, and groundwater leachability soil cleanup target levels (SCTLs) as established in Chapter 62 -777, Florida Administrative Code. R: \WASTE\20131Projects \City of Clearwater — St. Vincent de Paul 12011466\Reports \Soil Assessment Reportdoc 2 Concentrations of antimony, arsenic, barium, and vanadium in background soil samples PL -SB -1 and LS -SB -1 and two of the four samples collected on the subject property (SV -SB -3 and SV- SB-4) were non - detectable or below the residential and leachability SCTLs. Soil samples collected at locations SV -SB -1 and SV -SB -2 contained arsenic at concentrations of 3.8 milligrams per kilogram (mg/kg) and 5.3 mg /kg, respectively. The concentrations of arsenic in these two samples exceeded the residential SCTL (2.1 mg /kg) but were below the commercial /industrial SCTL (12 mg /kg). Concentrations of antimony, barium, and vanadium in soil samples SV -SB -1 and SV -SB -2 were non - detectable or below residential and leachability SCTLs. 5.0 CONCLUSIONS AND RECOMMENDATIONS Based on the results of this soil assessment, it appears that surficial soil at two locations (SV -SB- 1 and SV -SB -2) at the St. Vincent de Paul property contain arsenic at concentrations that exceeded the residential SCTL but were below the commercial /industrial SCTL. Concentrations of arsenic in soil at the remaining locations on the subject property (SV -SB -3 and SV -SB -4) and the two background sample locations (PL -SB -1 and LS -SB -1) were below the residential SCTL. Concentrations of antimony, barium, and vanadium in all six soil samples were non - detectable or below residential and leachability SCTLs. Based on these conclusions, URS recommends further evaluation of arsenic concentrations in the unsaturated portion of soil at the St. Vincent de Paul property. R:\WASTE \2013\Projects \City of Clearwater— St. Vincent de Paul 12011466\Reports \Soil Assessment Reporkdoc 3 FIGURE 4 1' CLEVEt„AND STREET SV-SB-1., SV-SB-2 SV-SB-3 4$` SV-SB-4 W pwor! , 200' 400' UPS 7650 West Courtney Campbell Cswy, Suite 700 Tampa, Florido 33607 Ph: (813) 286-1711 Fox. (813) 2136-6587 Florid., Engineering Number 000002 IS, SOIL SAMPLE LOCATION 4 A BACKGROUND SOIL SAMPLE LOCATION Soil Sample Location Map ST. VINCENT de PAUL 1015 CLEVELAND STREET CLEARWATER, FLORIDA PROJECT NO. 1 2001 466 DESN/APV0 JRS TC DATE 10/8/13 FICUREI NO. TABLE R: \WASTE\2013\Projects\City of Clearwater - St. Vincent de Paul \Tables \Table 1 Soil Analytical - Metals.doc TABLE 1 SUMMARY OF SOIL ANALYTICAL RESULTS - ST. VINCENT DE PAUL PROPERTY 1015 CLEVELAND STREET CLEARWATER, FLORIDA OCTOBER 2, 2013 SAMPLE LOCATION St. Vincent de Paul Property Prospect Lake Peninsula Laura Street Right-of-Way LS -SB-1 SOIL CLEANUP TARGET LEVELS' SAMPLE NUMBER SV -SB-1 SV -SB -2 SV -SB -3 SV -SB-4 PL -SB -1 SAMPLE DEPTH (feet) 0.0 - 0.5 0.0 - 0.5 0.0 - 0.5 0.0 - 0.5 0.0 - 0.5 0.0 - 0.5 Residential Commercial/ Industrial Leachability PARAMETER METALS ( mg/kg) Antimony 0.041 (U) 0.41 (U) 0.42 (U) 0.063 (I) 0.43 (U) 0.40 (U) 27 370 5.4 Arsenic 3.8 5.3 0.78 1.4 0.78 0.43 (I) 2.1 12 Barium 8.9 5.0 7.4 7.1 21.8 22.3 120 130,000 1,600 Vanadium 12.9 19.2 10.0 13.2 5.0 2.2 67 10,000 980 NOTES: mg/kg - milligrams per kilogram 0.41 (U) - Detection Limit (Not Detected) 0.63 (I) - Estimated Concentration (1) - Table II - Soil Cleanup Target Levels (SCTL), Chapter 62 -777, Florida Administrative Code * - Leachability value may be derived using synthetic precipitate leaching procedure to calculate site - specific Soil samples collected using five point composite method. Soil samples collected at Pros sect Lake Peninsula and the Laura Street Ri: t -of -Wa are considered back :round SCTLs. sam i les. R: \WASTE\2013\Projects\City of Clearwater - St. Vincent de Paul \Tables \Table 1 Soil Analytical - Metals.doc APPENDIX A PHOTOGRAPHS Client Name: City of Clearwater PHOTOGRAPHIC LOG Site Location: St. Vincent de Paul /Preliminary Soil Assessment Project No. 12011466 Photo No, 1 Description: 10/2/13 St. Vincent de Paul — Soil sample location SV -SB -1 Photo No. 2 Date: 10/2/13 Description: St. Vincent de Paul — Soil sample location SV -SB -2 R \waste\2013 \projects \City of Clearwater — St. Vincent de Paul\Photos \Soil Assessment Photolog.doc URS PHOTOGRAPHIC LOG Client Name: City of Clearwater Photo No. 3 Date: 10/2/13 Description: St. Vincent de Paul — Soil sample location SV -SB -3 Site Location: St. Vincent de Paul /Preliminary Soil Assessment Project No. 12011466 Photo No. 4 Date: 10/2/13 Description: St. Vincent de Paul — Soil sample location SV -SB -4 R: \wastel2013 \projects \City of Clearwater — St. Vincent de Paul \ Photos \Soil Assessment Photolog.doc URS PHOTOGRAPHIC LOG Client Name: City of Clearwater Photo No, 5 Date: 10/2/13 Description: Prospect Lake Park Peninsula - Background soil sample location PL- SB-1 Site Location: St. Vincent de Paul /Preliminary Soil Assessment Project No. 12011466 Photo No. 6 Date: 10/2/13 Description: Laura Street Right -of -Way — Background sample locations LS -SB -1 R: \waste12013\projects\City of Clearwater— St. Vincent de Paul \Photos \Soil Assessment Photolog.doc APPENDIX B LABORATORY REPORT AND CHAIN -OF- CUSTODY FORM aceAnalytical6 www.pecelabs.com October 08, 2013 Mr. Tom Carberry URS Corporation 7650 W. Courtney Campbell Cswy Tampa, FL 33607 RE: Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 Dear Mr. Carberry: Enclosed are the analytical results for sample(s) received by the laboratory on October 03, 2013. The results relate only to the samples included in this report. Results reported herein conform to the most current TNI standards and the laboratory's Quality Assurance Manual, where applicable, unless otherwise noted in the body of the report. If you have any questions concerning this report, please feel free to contact me. Sincerely, mac_ Sakina Mckenzie sakina.mckenzie @pacelabs.com Project Manager Enclosures REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 1 of 16 aceAnalytical wwwpacelabs.cam CERTIFICATIONS Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 Ormond Beach Certification IDs 8 East Tower Circle, Ormond Beach, FL 32174 Alabama Certification #: 41320 Arizona Certification #: AZ0735 Colorado Certification: FL NELAC Reciprocity Connecticut Certification #: PH -0216 Delaware Health and Social Services Florida Certification #: E83079 Georgia Certification #: 955 Guam Certification: FL NELAC Reciprocity Hawaii Certification: FL NELAC Reciprocity Illinois Certification #: 200068 Indiana Certification: FL NELAC Reciprocity Kansas Certification #: E -10383 Kentucky Certification #: 90050 Louisiana Certification #: FL NELAC Reciprocity Louisiana Environmental Certificate #: 05007 Maine Certification #: FL01264 Maryland Department of the Environment Massachusetts Certification #: M- FL1264 Michigan Certification #: 9911 Mississippi Certification: FL NELAC Reciprocity Missouri Certification #: 236 Montana Certification #: Cert 0074 Nevada Certification: FL NELAC Reciprocity New Hampshire Certification #: 2958 New Jersey Certification #: FL765 New York Certification #: 11608 North Carolina Environmental Certificate #: 667 North Carolina Certification #: 12710 Pennsylvania Certification #: 68 -00547 Puerto Rico Certification #: FL01264 South Carolina Department of Health and Environmental Control Tennessee Certification #: TN02974 Texas Certification: FL NELAC Reciprocity US Virgin Islands Certification: FL NELAC Reciprocity Virginia Environmental Certification #: 460165 Washington Certification #: C955 West Virginia Certification #: 9962C Wisconsin Certification #: 399079670 Wyoming (EPA Region 8): FL NELAC Reciprocity REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 2 of 16 aceAnalytical wwwpacetabs.com SAMPLE SUMMARY Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 Lab ID Sample ID Matrix Date Collected Date Received 35110578001 SV -SB -1 Solid 10/02/13 10:30 10/03/13 03:00 35110578002 SV -SB -2 Solid 10/02/13 10:45 10/03/13 03:00 35110578003 SV -SB -3 Solid 10/02/13 11:14 10/03/13 03:00 35110578004 SV -SB -4 Solid 10/02/13 12:02 10/03/13 03:00 35110578005 PL -SB -1 Solid 10/02/13 13:21 10/03/13 03:00 35110578006 LS -SB -1 Solid 10/02/13 13:53 10/03/13 03:00 35110578007 Equipment Blank Water 10/02/13 15:10 10/03/13 03:00 REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 3 of 16 aceAnalyfical www.pecelabs.com SAMPLE ANALYTE COUNT Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 Lab ID Sample ID Method 35110578001 SV -SB -1 35110578002 SV -SB -2 35110578003 SV SB -3 35110578004 SV -SB -4 35110578005 PL -SB -1 35110578006 LS -SB -1 35110578007 Equipment Blank Analytes Analysts Reported Laboratory EPA 6010 JTJ 4 PASI -O ASTM D2974 -87 VAB 1 PASI -O EPA 6010 TAP 4 PASI -O ASTM D2974 -87 VAB 1 PASI -O EPA 6010 JTJ 4 PASI -O ASTM D2974 -87 VAB 1 PASI -O EPA 6010 JTJ 4 PASI -O ASTM D2974 -87 VAB 1 PASI -O EPA 6010 JTJ 4 PASI -O ASTM D2974 -87 VAB 1 PASI -O EPA 6010 JTJ 4 PASI -O ASTM D2974 -87 VAB 1 PASI -O EPA 6010 TAP 4 PASI -O REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 4 of 16 aceAnalytical ww`vpecelabs.com ANALYTICAL RESULTS Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 Sample: SV -SB -1 Lab ID: 35110578001 Collected: 10/02/13 10:30 Received: 10/03/13 03:00 Matrix: Solid Results reported on a "dry- weight" basis Parameters Results Units PQL MDL DF Prepared Analyzed CAS No. Qual 6010 MET ICP Analytical Method: EPA 6010 Preparation Method: EPA 3050 Antimony Arsenic 0.41 U mg /kg 0.82 0.41 1 10/05/13 09:30 10/06/13 04:18 7440 -36 -0 3.8 mg /kg 0.55 0.27 1 10/05/13 09:30 10/06/13 04:18 7440 -38 -2 Barium 8.9 mg /kg 0.55 027 1 10/05/13 09:30 10/06/13 04:18 7440 -39 -3 Vanadium 12.9 mg /kg 0.55 0.27 1 10/05/13 09:30 10/06/13 04:18 7440 -62 -2 Percent Moisture Analytical Method: ASTM D2974 -87 Percent Moisture 11.8 % 0.10 0.10 1 10/04/13 02:55 Sample: SV SB -2 Lab ID: 35110578002 Collected: 10/02/13 10:45 Received: 10/03/13 03:00 Matrix: Solid Results reported on a "dry- weight" basis Parameters Results Units PQL MDL DF Prepared Analyzed CAS No. Quaff 6010 MET ICP Analytical Method: EPA 6010 Preparation Method: EPA 3050 Antimony 0.41U mg /kg 0.82 0.41 1 10/08/13 06:23 10/08/13 09:50 7440 -36 -0 Arsenic 5.3 mg /kg 0.55 0.27 1 10/08/13 06:23 10/08/13 09:50 7440 -38 -2 Barium 5.0 mg /kg 0.55 0.27 1 10/08/13 06:23 10/08/13 09:50 7440 -39 -3 Vanadium 19.2 mg /kg 0.55 0.27 1 10/08/13 06:23 10/08/13 09:50 7440 -62 -2 J(M1) Percent Moisture Analytical Method: ASTM D2974 -87 Percent Moisture 8.1 % 0.10 0.10 1 10/04/13 02:55 Sample: SV SB -3 Lab ID: 35110578003 Collected: 10/02/13 11:14 Received: 10/03/13 03:00 Matrix: Solid Results reported on a "dry- weight" basis Parameters Results Units PQL MDL DF Prepared Analyzed CAS No. Qual 6010 MET ICP Analytical Method: EPA 6010 Preparation Method: EPA 3050 Antimony 0.42U mg /kg 0.84 0.42 1 10/05/13 09:30 10/06/13 04:21 7440 -36 -0 Arsenic 0.78 mg /kg 0.56 0.28 1 10/05/13 09:30 10/06/13 04:21 7440 -38 -2 Barium 7.4 mg /kg 0.56 0.28 1 10/05/13 09:30 10/06/13 04:21 7440 -39 -3 Vanadium 10.0 mg /kg 0.56 0.28 1 10/05/13 09:30 10/06/13 04:21 7440 -62 -2 Percent Moisture Analytical Method: ASTM D2974 -87 Percent Moisture 12.5 % 0.10 0.10 1 10/04/13 02:55 Date: 10/08/2013 01:42 PM REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 5 of 16 aceAnalytical wwwpecelabs.com ANALYTICAL RESULTS Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 Sample: SV -SB -4 Lab ID: 35110578004 Collected: 10/02/13 12:02 Received: 10/03/13 03:00 Matrix: Solid Results reported on a "dry- weight" basis Parameters Results Units PQL MDL DF Prepared Analyzed CAS No. Qual 6010 MET ICP Analytical Method: EPA 6010 Preparation Method: EPA 3050 Antimony 0.63 I mg /kg 0.90 0.45 1 10/05/13 09:30 10/06/13 04:25 7440 -36 -0 Arsenic 1.4 mg /kg 0.60 0.30 1 10/05/13 09:30 10/06/13 04:25 7440 -38 -2 Barium 7.1 mg /kg 0.60 0.30 1 10/05/13 09:30 10/06/13 04:25 7440 -39 -3 Vanadium 13.2 mg /kg 0.60 0.30 1 10/05/13 09:30 10/06/13 04:25 7440 -62 -2 Percent Moisture Analytical Method: ASTM D2974 -87 Percent Moisture 18.0 % 0.10 0.10 1 10/04/13 02:59 Sample: PL-S121-1 Lab ID: 35110578005 Collected: 10/02/13 13:21 Received: 10/03/13 03:00 Matrix: Solid Results reported on a "dry- weight" basis Parameters Results Units PQL MDL DF Prepared Analyzed CAS No. Qual 6010 MET ICP Analytical Method: EPA 6010 Preparation Method: EPA 3050 Antimony 0.43U mg /kg 0.87 0.43 1 10/05/13 09:30 10/06/13 04:40 7440 -36 -0 Arsenic 0.78 mg /kg 0.58 0.29 1 10/05/13 09:30 10/06/13 04:40 7440 -38 -2 Barium 21.8 mg /kg 0.58 0.29 1 10/05/13 09:30 10/06/13 04:40 7440 -39 -3 Vanadium 5.0 mg/kg 0.58 0.29 1 10/05/13 09:30 10/06/13 04:40 7440 -62 -2 Percent Moisture Analytical Method: ASTM D2974 -87 Percent Moisture 10.8 % 0.10 0.10 1 10/04/13 03:02 Sample: LS -SB -1 Lab ID: 35110578006 Collected: 10/02/13 13:53 Received: 10/03/13 03:00 Matrix: Solid Results reported on a "dry- weight" basis Parameters Results Units PQL MDL DF Prepared Analyzed CAS No. Qual 6010 MET ICP Analytical Method: EPA 6010 Preparation Method: EPA 3050 Antimony 0.40U mg /kg 0.80 0.40 1 10/05/13 09:30 10/06/13 04:50 7440 -36 -0 Arsenic 0.43 I mg /kg 0.53 0.27 1 10/05/13 09:30 10/06/13 04:50 7440 -38 -2 Barium 22.3 mg /kg 0.53 0.27 1 10/05/13 09:30 10/06/13 04:50 7440 -39 -3 Vanadium 2.2 mg /kg 0.53 0.27 1 10/05/13 09:30 10/06/13 04:50 7440 -62 -2 Percent Moisture Analytical Method: ASTM D2974 -87 Percent Moisture 5.3 % 0.10 0.10 1 10/04/13 03:02 Date: 10/08/2013 01:42 PM REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 6 of 16 aceAnalytical www.pecelabs.com ANALYTICAL RESULTS Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 Sample: Equipment Blank Lab ID: 35110578007 Collected: 10/02/13 15:10 Received: 10/03/13 03:00 Matrix: Water Parameters Results Units PQL MDL DF Prepared Analyzed CAS No. Quaff 6010 MET ICP Antimony Arsenic Barium Vanadium Date: 10/08/2013 01:42 PM Analytical Method: EPA 6010 Preparation Method: EPA 3010 5.0U ug /L 5.0U ug /L 5.0U ug /L 5.0U ug /L 15.0 5.0 1 10/04/13 05:24 10/04/13 18:43 7440 -36 -0 10.0 5.0 1 10/04/13 05:24 10/04/13 18:43 7440 -38 -2 10.0 5.0 1 10/04/13 05:24 10/04/13 18:43 7440 -39 -3 10.0 5.0 1 10/04/13 05:24 10/04/13 18:43 7440 -62 -2 REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 7 of 16 aceAnalytical www.pacelabs.com QUALITY CONTROL DATA Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 QC Batch: MPRP/15332 Analysis Method: EPA 6010 QC Batch Method; EPA 3050 Analysis Description: 6010 MET Solid Associated Lab Samples: 35110578001, 35110578003, 35110578004, 35110578005 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 METHOD BLANK 736402 Matrix: Solid Associated Lab Samples: 35110578001, 35110578003, 35110578004, 35110578005 Blank Reporting Parameter Units Result Limit Analyzed Qualifiers Antimony mg /kg 0.38U 0.75 10/06/13 15:05 Arsenic mg /kg 0.25U 0.50 10/06/13 15:05 Barium mg /kg 0.25U 0.50 10/05/13 18:55 Vanadium mg /kg 0.25U 0.50 10/06/13 15:05 LABORATORY CONTROL SAMPLE: 736403 Spike LCS LCS % Rec Parameter Units Conc. Result % Rec Limits Qualifiers Antimony mg /kg 12.8 13.4 105 80 -120 Arsenic mg /kg 12.8 13.3 104 80 -120 Barium mg /kg 12.8 12.6 98 80 -120 Vanadium mg /kg 12.8 13.7 107 80 -120 MATRIX SPIKE & MATRIX SPIKE DUPLICATE: 736404 736405 MS MSD 35110045001 Spike Spike MS MSD MS MSD % Rec Max Parameter Units Result Conc. Conc. Result Result % Rec % Rec Limits RPD RPD Qual Antimony mg /kg 0.075U 2.5 2.5 2.6 2.5 103 102 75 -125 2 20 Arsenic mg /kg 0.0500 2.5 2.5 2.6 2.5 102 102 75 -125 2 20 Barium mg /kg 0.050U 2.5 2.5 2.5 2.5 97 99 75 -125 .4 20 Vanadium mg /kg 0.050U 2.5 2.5 2.6 2.5 102 103 75 -125 2 20 Date: 10/08/2013 01:42 PM REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services Inc Page 8 of 16 aceAnal tiical www.pacelabs.com QUALITY CONTROL DATA Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 QC Batch: MPRP/15333 Analysis Method: EPA 6010 QC Batch Method: EPA 3050 Analysis Description: 6010 MET Solid Associated Lab Samples: 35110578006 METHOD BLANK: 736406 Matrix: Solid Associated Lab Samples: 35110578006 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 Blank Reporting Parameter Units Result Limit Analyzed Y Qualifiers Antimony mg /kg 0.36U 0.72 10/05/13 19:40 Arsenic mg /kg 0.24U 0.48 10/05/13 19:40 Barium mg /kg 0.24U 0.48 10/05/13 19:40 Vanadium mg /kg 0.24U 0.48 10/05/13 19:40 LABORATORY CONTROL SAMPLE: 736407 Spike LCS LCS % Rec Parameter Units Conc. Result % Rec Limits Qualifiers Antimony mg /kg 12.1 12.3 102 80 -120 Arsenic mg /kg 12.1 12.3 101 80 -120 Barium mg /kg 12.1 12.0 99 80 -120 Vanadium mg /kg 12.1 12.7 105 80 -120 MATRIX SPIKE & MATRIX SPIKE DUPLICATE: 736408 736409 MS MSD 35110028001 Spike Spike MS MSD MS MSD % Rec Max Parameter Units Result Conc. Conc. Result Result % Rec % Rec Limits RPD RPD Qual Antimony mg /kg 0.45U 15.8 16.1 14.6 15.2 92 94 75 -125 4 20 Arsenic mg /kg 0.601 15.8 16.1 16.0 16.5 98 98 75 -125 3 20 Barium mg /kg 2.9 15.8 16.1 17.9 18.6 95 97 75 -125 3 20 Vanadium mg /kg 3.3 15.8 16.1 18.5 19.0 96 97 75 -125 3 20 Date: 10/08/2013 01:42 PM REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 9 of 16 aeAnaIyticaI www.pecelabs.com QUALITY CONTROL DATA Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 QC Batch: MPRP /15354 Analysis Method: EPA 6010 QC Batch Method: EPA 3050 Analysis Description: 6010 MET Solid Associated Lab Samples: 35110578002 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 METHOD BLANK: 737442 Matrix: Solid Associated Lab Samples: 35110578002 Blank Reporting Parameter Units Result Limit Analyzed Qualifiers Antimony mg /kg 0.37U 0.75 10/08/13 09:43 Arsenic mg /kg 0.25U 0.50 10/08/13 09:43 Barium mg /kg 0.25U 0.50 10/08/13 09:43 Vanadium mg /kg 0.25U 0.50 10/08/13 09:43 LABORATORY CONTROL SAMPLE: 737443 Spike LCS LCS % Rec Parameter Units Conc. Result % Rec Limits Qualifiers Antimony mg/kg 12.3 12.9 105 80 -120 Arsenic mg /kg 12.3 12.7 103 80 -120 Barium mg /kg 12.3 13.0 106 80 -120 Vanadium mg /kg 12.3 13.2 107 80 -120 MATRIX SPIKE & MATRIX SPIKE DUPLICATE: 737444 737445 MS MSD 35110578002 Spike Spike MS MSD MS MSD % Rec Max Parameter Units Result Conc. Conc. Result Result % Rec % Rec Limits RPD RPD Quai Antimony mg /kg 0.41U 13.1 13.7 13.7 13.5 105 98 75 -125 2 20 Arsenic mg /kg 5.3 13.1 13.7 20.8 20.0 118 107 75 -125 4 20 Barium mg /kg 5.0 13.1 13.7 18.7 20.1 105 110 75 -125 7 20 Vanadium mg /kg 19.2 13.1 13.7 38.8 36.3 151 125 75 -125 7 20 J(M1) Date: 10/08/2013 01:42 PM REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 10 of 16 7eAnaIyticaI www.pacelabs.com QUALITY CONTROL DATA Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 QC Batch: MPRP /15303 Analysis Method: EPA 6010 QC Batch Method: EPA 3010 Analysis Description: 6010 MET Associated Lab Samples: 35110578007 METHOD BLANK: 735132 Matrix: Water Associated Lab Samples: 35110578007 Blank Reporting Parameter Units Result Limit Analyzed Qualifiers Antimony ug /L 5.0U 15.0 10/04/13 13:47 Arsenic ug /L 5.0U 10.0 10/04/13 13:47 Barium ug /L 5.0U 10.0 10/04/13 13:47 Vanadium ug /L 5.0U 10.0 10/04/13 13:47 LABORATORY CONTROL SAMPLE: 735133 Spike LCS LCS % Rec Parameter Units Conc. Result % Rec Limits Qualifiers Antimony ug /L 250 260 104 80-120 Arsenic ug /L 250 252 101 80 -120 Barium ug /L 250 263 105 80 -120 Vanadium ug /L 250 258 103 80 -120 MATRIX SPIKE & MATRIX SPIKE DUPLICATE: 735134 735135 MS MSD 35110673004 Spike Spike MS MSD MS MSD % Rec Max Parameter Units Result Conc. Conc. Result Result % Rec % Rec Limits RPD RPD Qual Antimony ug /L 6.51 250 250 277 271 108 106 75-125 2 20 Arsenic ug /L 5.0U 250 250 267 261 105 103 75 -125 2 20 Barium ug /L 30.2 250 250 300 295 108 106 75 -125 2 20 Vanadium ug /L 11.5 250 250 275 270 105 103 75 -125 2 20 Date: 10/08/2013 01:42 PM REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, inc.. Page 11 of 16 7 aceAnalytical www.pecelabs.com QUALITY CONTROL DATA Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 QC Batch: PMST /2122 Analysis Method: ASTM D2974 -87 QC Batch Method: ASTM D2974 -87 Analysis Description: Dry Weight/Percent Moisture Associated Lab Samples: 35110578001, 35110578002, 35110578003, 35110578004, 35110578005, 35110578006 SAMPLE DUPLICATE: 735083 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 10244284001 Dup Max Parameter Units Result Result RPD RPD Qualifiers Percent Moisture SAMPLE DUPLICATE: 735084 8.9 9.4 5 10 35110578005 Dup Max Parameter Units Result Result RPD RPD Qualifiers Percent Moisture % 10.8 11.1 3 10 SAMPLE DUPLICATE: 735085 35110609002 Dup Max Parameter Units Result Result RPD RPD Qualifiers Percent Moisture Date: 10/08/2013 01:42 PM 42.5 43.0 1 10 REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 12of16 /eAnaIyticaI www.pecelabs.com QUALIFIERS Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 Pace Analytical Services, Inc, 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 DEFINITIONS DF - Dilution Factor, if reported, represents the factor applied to the reported data due to changes in sample preparation, dilution of the sample aliquot, or moisture content. ND - Not Detected at or above adjusted reporting limit. MDL - Adjusted Method Detection Limit. PRL - Pace Reporting Limit. RL - Reporting Limit. S - Surrogate 1,2- Diphenylhydrazine (8270 listed analyte) decomposes to Azobenzene. Consistent with EPA guidelines, unrounded data are displayed and have been used to calculate % recovery and RPD values. LCS(D) - Laboratory Control Sample (Duplicate) MS(D) - Matrix Spike (Duplicate) DUP - Sample Duplicate RPD - Relative Percent Difference NC - Not Calculable. SG - Silica Gel - Clean -Up U - Indicates the compound was analyzed for, but not detected. N- Nitrosodiphenylamine decomposes and cannot be separated from Diphenylamine using Method 8270. The result reported for each analyte is a combined concentration. Pace Analytical is TNI accredited. Contact your Pace PM for the current list of accredited analytes. TNI - The NELAC Institute. LABORATORIES PASI -O Pace Analytical Services - Ormond Beach ANALYTE QUALIFIERS J(M1) The reported value is between the laboratory method detection limit and the laboratory practical quantitation limit. Estimated Value. Matrix spike recovery exceeded QC limits. Batch accepted based on laboratory control sample (LCS) recovery. Date: 10/08/2013 01:42 PM REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 13 of 16 aeAflaIyticaI e www.pacetabs.com QUALITY CONTROL DATA CROSS REFERENCE TABLE Project: Clearwater -St. Vincent de Paul Pace Project No.: 35110578 Pace Analytical Services, Inc. 8 East Tower Circle Ormond Beach, FL 32174 (386)672 -5668 Analytical Lab ID Sample ID QC Batch Method QC Batch Analytical Method Batch 35110578001 SV -SB -1 EPA3050 MPRP/15332 EPA6010 ICP/9621 35110578002 SV -SB -2 EPA 3050 MPRP /15354 EPA 6010 ICP/9631 35110578003 SV SB -3 EPA 3050 MPRP /15332 EPA 6010 1CP /9621 35110578004 SV -SB -4 EPA 3050 MPRP/15332 EPA 6010 ICP/9621 35110578005 PL -SB -1 EPA 3050 MPRP/15332 EPA 6010 ICP/9621 35110578006 LS -SB -1 EPA3050 MPRP /15333 EPA6010 ICP/9622 35110578007 Equipment Blank EPA 3010 MPRP /15303 EPA 6010 ICP/9607 35110578001 SV -SB -1 ASTM D2974 -87 PMST /2122 35110578002 SV -SB -2 ASTM D2974 -87 PMST /2122 35110578003 SV-SB-3 ASTM D2974 -87 PMST /2122 35110578004 SV -SB-4 ASTM D2974 -87 PMST /2122 35110578005 PL -SB -1 ASTM D2974 -87 PMST /2122 35110578006 LS -SB -1 ASTM D2974 -87 PMST /2122 Date: 10/08/2013 01:42 PM REPORT OF LABORATORY ANALYSIS This report shall not be reproduced, except in full, without the written consent of Pace Analytical Services, Inc.. Page 14 of 16 WO* : 851105 78 HAIN -OF- CUSTODY / Analytical Request Document t NoN: Ey sigpMg this form you are accepting Pace's NET 30 day payment terms and agreeing to late cremes at 1.5% per month for any In t in 30 days. F- ALL- Q- 020rev.07,15 -May -2007 II!! . Chain -of- Custody is a LEGAL DOCUMENT. All relevant fields must be completed accurately. . • 3311 0578 _ Section C Riigmre�cmn.r,,,.m,.,emx.. -_. _._ - . , invoice Information: Pte, of f Company. w/iJr t...�7�'-tp3►' �V f 7; t,/ /'� �r Report To: �►ii1 Coo 4 Copy To: ,on. is s4 L r�JI Js4 �5,i1 Company Name: u rzi ` Ad d, =.:. (JJ' J � �� 06 REGULATORY AGENCY L -a 1- NPDES r � GROUND WATER j, DRINKING WATER r UST r RCRA ; OTHER Email To: �I. d'04.(414,4 yrp of eas ws Purchase Order No.: Pace Quote nce: � Fax r 21. ,30.1 i �(�`J I Protect Name: - /' �� J �: Vi�+a�iA�` � ` AQW� -- p ,�" w f "I.�, � Site Location STATE: '^ �r �u, ��1 Requested Due Date/TAT: y !t� L Project Number: d i 3' / R e' J 3 6 i 1 i �O manager: c�, ,l�Lf Requesteaf Analysis Filtered (YIN) et W Section D Matrix Codes Req.*edMent Inkrmedon MATRIX 1 CODE A 0 , • C� X F PI ra I SAMPLE TYPE (G =GRAB C=COMP) COLLECTED t I SAMPLE TEMP AT COLLECTION # OF CONTAINERS 1 Preservatives ~ .`Y. Drinking Water OW Water WT Waste Water MN Product P S VSobd SL SAMPLE ID oil VVI (A -Z, 0-9 i ;) Aires Alt Sample IDs MUST BE UNIQUE Tissue TS Other OT COmPOSI E START COMPOSITE BID/GRAS - -I -4 Unpreserved O 1r ■.uunI II <., 9 = x =O z .o z Methanol Other • IjAnalystsTest1 J _ I'e��■ MIII ffli II..IIIIII.II' El MI nil��v�� II�� Residual Chlorine (YIN) I Pace Project No.! Lab ID. DATE I 1 '1 TIME IRIPM DATE TIME /o .0 1 _ 1111 U iitsIimu■ uuuiu•i 1/. 3I ® < G Fia r, e i ► - — . 3 I I Id Ali la 4 _ Z�,s�° -`i PI as M Hi ■�1111••uuuuiuuu c c 4. +' WTIM 11 E$i� I .�� n WAIMI hIMEIli an -- - — 1 + I AI��IlII ©i smuuu i III I 11111 I.S.IIouuiiRiI•.IuUI ` 6 J S - 7 £ ' /444$41, LAW ' 10 kill I•aIu ■�� i AFFILIATION DATE TIME ii 'ir 11 �11111111111IIIIi11C ACCEPTED BY 12 ADDITIONAL COMMENTS " - DATE TIME SAMPLE CONDMONS °a- iG / 1 t 1111 ' ~ia! MI r" I t! ami =II m SAMPLER NAME AND SIGNATURE Temp in °C g c a m `-- Custody Sealed Cooler (YIN) m 2 E m al PRINT Name of SAMPLER: ,;,,,,(Q4 O F ORIGINAL '' SIGNATURE of SAMPLER %�'. cr) iG>' .,. /� DATE Signed p� ,,, J tMNUDDIYYj: r`� %� f •� t NoN: Ey sigpMg this form you are accepting Pace's NET 30 day payment terms and agreeing to late cremes at 1.5% per month for any In t in 30 days. F- ALL- Q- 020rev.07,15 -May -2007 Document Name: Sample Condition Upon Receipt Form Document No.: F -FL-C -007 rev. 04 Oocu an ev so : Ss temp b 2011 suing u or es: Pace Florida Quality Office Sample Condition Upon Receipt Form (SCUR) Table Number: Client Name: u-.S Project # 35 1 0 5i 5? Courier: ❑ Fed Ex ❑ UPS ❑ USPS ❑ Client Commercial ❑ Pace Tracking # Custody Seal on Cooler/Box Present: ❑ yes no Seats intact: Oyes 0 no Packing Material: eBubble Wrap l7�Bubble Bags 0 None 0 Other Thermometer Used 7744! 7. t' Type of ice Cooler Temperature'c / 7 (Visual) Receipt of samples satisfactory: . tf yes, then all conditions below were met Blue None Q! (temp shouid be above freezing to 6'C). If below 0'C, then was Y ,(Correction,Factor) / V. (Actual) sample frozen? ❑ other Date and Initials .f erson e�earyry ing contents: /a,3'/ 3 UJ �fea • QYes ONo ❑No. Rush TAT requested on COC: • Chainof•Custtod Present - O•i IV II MI 0 main WA ■ QesclaTO issue USV comments area n neces Chain of Custo. Rtiled•Out 0 • Rein ished S nature & Sa • er Name COC - 0 Samples Arrived within Hold Time • R Sufficient Volume Lt. Correct Contained Used o Containers intact • _ _ • Sample Labels match COC (sample Ids & date/time of collection) 0 No Labels: ❑ No Time/Daleon Labels: ❑ All containers needinpreservation are found to be in cam •liancewithEPA'recommendation. - 0 No Headfpace III VOA Vials (>6mm): .. 0 ' ^IL—. 111...7[7...:7,. _7 w--- a - -.r. _ Person Contacted: . Comments/Resolution (use back for addi@ona) comments): Date/Time: Project Manager Review: Date: F.P. Sample JD Production Code: Finished Produ orination Only. OateITfine Opened: Number of Unopened Bottles Remaining: Extra Sample in Shed: Yes No Size 8, Qty of Bottles Received x 5 Gal x 2.5 Dal x f Gat x 1 Liter x 500 mL x 250 mL x Other sary); Page 16 of 16 10 sto- s UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ,/ `' WASHINGTON, D.C. 20460 fife �`,,.) qt. PFO DEC 12 1015 Mr. Ed Chesney, P.E. Environmental Manager City of Clearwater 100 South Myrtle Avenue, #220 Clearwater, Florida 33756 OFFICE:: OF INSPECTOR GENERAL. Dear Mr. Chesney, The Office of Inspector General (01G) is an independent office within the U.S. Environmental Protection Agency (EPA) that helps the agency protect the environment in a more efficient and cost effective manner. We consist of auditors, program analysts, investigators and others with extensive expertise. Although we are a part of the EPA, Congress provides us with our funding separate from the agency, to ensure our independence. We were created pursuant to the Inspector General Act of 1978, as amended. The OIG is working on a program evaluation to determine whether the EPA's designation of assessed and cleaned up sites that have achieved the "ready for anticipated uses" (RAU) and/or "protective for people" (PFP) Performance Measures include effective controls to ensure long -term protection to human health and the environment. Secondly, the 01G is evaluating whether hyperspectral imaging data is a useful oversight tool for the OIG for assessing contamination and cleanup at Brownfields, Resource Conservation and Recovery Act (RCRA) Corrective Action, Leaking Underground Storage Tank, and Superfund sites. To accomplish our evaluation, we selected sites that the EPA had deemed RAU and conducted soils sampling and flyovers of the selected sites. Some of the sites selected were in the Tampa and Clearwater, Florida areas. The intent of the soils sampling is to ground truth the hyperspectral imaging data. The OIG was provided with your August 28, 2013, e -mail to Bob Rosen of EPA Region 4, regarding the EPA's access to three City of Clearwater Brownfields sites. In your email, you said that the OIG conducted soils sampling at the three sites without the City's authorization. You also raised several questions regarding sampling methodology, the purpose of the sampling and the intended use of the data. The 010 believes that we have had a misunderstanding regarding site access. We've included some information about the communication that explains how the OIG believed we acted in good faith when the OIG conducted its sampling. We've also included information that we hope will answer your questions about our soil sampling assessment. i Ure 2r s 'URA, e f . • ._ Ot t }It o5••: . 'r.F:es6 i11:, rp t ri • 2 : On April 15, 2013, several 0I0 members conducted a conference call with Brownfields and RCRA site owners in the Tampa/Clearwater area to explain the program evaluation and discuss the OIG's soils sampling and site visits scheduled in the Tampa/Clearwater area. Attendees included 0I0 representatives, the Cities of Clearwater and Tampa, and other site owners. We discussed the 0I0 scope, objectives and methodology, including our sampling methodology. A representative of a private company denied OIG access to its site. In contrast, the representatives from the Cities of Tampa (Ed Johnson) and Clearwater (you) focused your discussion on City -owned Brownfields sites the OIG selected for its evaluation. Mr. Johnson and you told the OIG staff in attendance that they would have no problem with site access if the OIG selected Brownfields sites that were owned by the two cities. During the meeting, Mr. Johnson identified two Tampa sites that were privately owned and he suggested that the OIG replace those sites with City -owned sites. In subsequent communications with Mr. Johnson and you, the OIG recommended three other Tampa/Clearwater -area sites, whereby you identified two of the three sites as being owned by the City of Clearwater, with the third site being privately owned. We agreed to not include the privately owned site in our sample. During the April 15, 2013, conference call, you did not deny the OIG access to its sites. Instead, you encouraged the OIG to select City -owned sites so that there would be no site access issues. After the meeting concluded on April 15, 2013, the OIG's understanding of site access was that it had received authorization from the City of Clearwater to access the City -owned Brownfields sites to conduct its soils sampling. In email correspondence following that meeting, you raised questions about the intended use of the OIG data and assurances that might be provided by the OIG, but did not specifically deny the OIG access to any of its sites. The OIG continued to operate with the understanding that you had provided verbal access and that the 0I0 could visit and sample soil from the City's sites. Consequently, the OIG's focus was on making sure the sites were owned by the City. On April 29, 2013, OIG's contractor sampled at three Clearwater Brownfield sites: Blue Chip Bar, Clearwater Automotive Salvage Yard and St. Vincent de Paul. We collected near - surface grab samples in a rough, widely spaced grid that covered each site. We can provide exact locations of the soils samples and the lab data results. We used a portable X -ray fluorescence (XRF) unit to obtain a field scan of the metal composition of the soil prior to taking each soil sample. Near where we observed high metal concentrations with the portable unit, we deviated from the grid- sampling pattern and took additional samples. Samples were dried and analyzed in a U.S. Geological Survey research laboratory using the operating procedure for the Niton XRF XL3 Analyzer. Five of the samples taken at the Clearwater Automotive Salvage Yard site were analyzed twice to confirm the elevated results. The OIG chose the XRF method for laboratory analysis of our soils samples, as it provides results more quickly and at a lower cost than the inductively coupled plasma method typically used to measure metal concentrations in soils. The primary limitation of the XRF method is its relatively high levels of detection. This limitation does not affect our work, as our intended use of the XRF results is to verify the hyperspectral imaging analysis. However, we recognize that use of the XRF method limits the applicability of our XRF results for assessing whether a site is protective of human health and the environment. As such, our concentrations should be considered screening results that will help guide confirmatory sampling. As some of the soils sampling results were above state standards, the 0I0 notified the EPA, as is the OIG's normal practice when we find potential concerns. The 010 recommended that the EPA conduct confirmatory sampling. Concerns could be raised if the EPA cannot perform the confirmatory sampling and test the validity of the OIG sampling results. We regret any misunderstanding regarding site access and hope that you will reconsider your denial of access so that the EPA can conduct appropriate follow -up sampling based on the OIG's screening results. Sincerely, Carolyn Copper Assistant Inspector General Office of Program Evaluation cc: Alan Farmer, Director, Resource Conservation Recovery Act Division, Region 4 David Lloyd, Director, Office of Brownfields and Land Revitalization, EPA Headquarters Charles Sheehan, Deputy Inspector General Alan Larsen, Counsel to the Inspector General Christine El- Zoghbi, Deputy Assistant Inspector General, Office of Program Evaluation Tina Lovingood, Director, Land Cleanup and Waste Management Issues, 010, Office of Program Evaluation Lopez, Geraldine Campos From: Chesney, Ed Sent: Wednesday, August 28, 2013 9:36 AM To: 'Rosen.Bob @epa.gov' Cc: Hufford, Diane; Akin, Pam; Lopez, Geraldine Campos; Sanderson, Denise Subject: IG Soil Screening and Site Access Bob, your August 14, 2013 request to Diane Hufford for access to the Blue Chip Bar, St. Vincent de Paul, and Clearwater Auto Salvage sites for the purpose of collecting samples has been forwarded to me for response. At this time, the City of Clearwater denies your request for access to any of the sites requested. We first discussed EPA's initial request for access to certain properties in the City of Clearwater during a conference call in early April 2013. At that time, EPA identified several properties for which access was sought that were not owned by the City and I so advised EPA's participants in the call of that fact. By email dated April 19, 2013, Bakari Baker, on behalf of EPA, advised me that EPA had revised the sites for which it sought access from the City to collect samples; access was formally sought for the "St. Vincent de Paul of Pinellas County Site ", "Clearwater Automotive Salvage Yard ", and "1573 5 Fort Harrison Ave Site" properties. I responded to Mr. Baker's email on April 23, 2013, in which I advised EPA that the City did not own the "1573 S Fort Harrison Ave Site" property and "so we cannot speak to its availability." With respect to EPA's request for access to the other two sites, I advised Mr. Baker that additional information was required from EPA before access could be granted. Specifically, I requested information on the sampling protocol, how the data would be used, and assurance that "allowing access to these sites to evaluate new technologies would not jeopardize the status of these sites ". Mr. Baker replied by email dated April 25, 2013, in which he stated "I have forwarded your questions to OIG management. You will receive a reply to your questions soon." The City never received a reply to the questions presented in my April 23, 2013 email to Mr. Baker. It now appears that EPA entered upon certain properties owned by the City on May 15, 2013, and actually collected samples from the sites. This activity was performed without the City's consent and directly contrary to EPA's indication that my questions would be answered before such work would be performed. At no time did the City give EPA access to the referenced properties for the purpose of collecting samples of any nature. The results of the unauthorized May 15, 2013 sampling events were forwarded to the City by cover of your email dated August 14, 2013. There is no information in your email that describes the authorization for site access to collect the samples, the methodology employed by EPA for sample collection and analysis, the locations of the sampling points, the quality assurance and quality control measures employed by EPA during the sampling event, or the proposed use of such data. You merely suggest that the sampling performed on May 15, 2013 may not "prove to be reliable" and that EPA seeks "access to the sites in order to conduct more thorough sampling. The main reason for this is that we believe that accurate, appropriate sampling will show that the sites do not have elevated levels of contaminants and that the IG results are sort of a forced bias based on their collection practices." Prior to further consideration of your request for access to Blue Chip Bar, St. Vincent de Paul, and Clearwater Auto Salvage sites, the City requires written responses from EPA to the following questions: 1. Under what authority did EPA enter upon the Blue Chip Bar, St. Vincent de Paul, and Clearwater Auto Salvage sites on May 15, 2013, and collect samples? 2. What was the methodology employed by EPA in the collection of the samples on May 15, 2013? 3. Where were the samples collected on each respective property? Please provide a figure with accurate locations for the samples collected. 4. What was the laboratory methodology employed by EPA in its analysis of the samples? Is this an approved EPA methodology? 1 5. What quality assurance /quality control measures were employed by EPA in its collection of the samples? 6. What quality assurance /quality control measures were employed by EPA in the laboratory analyses of the samples? 7. What is the purpose for which the samples were collected? How does EPA plan to use the data? 8. What is the purpose for the request for additional sampling at the site? How does EPA plan to use that data? 9. With respect to the additional sampling proposed to by undertaken by EPA at the properties, a. What methodology will be employed by EPA in the collection of the additional samples? b. What quality assurance /quality control measures will be employed by EPA in the collection of the additional samples? c. What laboratory methodology will be employed by EPA in its analyses of the additional samples? d. What quality assurance /quality control measures will be employed by EPA in the laboratory analyses of the additional samples? e. How many samples are proposed for each property? Please provide a figure depicting the proposed sampling locations. Upon receipt of your responses to each of the questions presented above, the City will further evaluate your request for site access. To be clear, until such information is provided and further evaluated by the City, and until formal written site access has been granted by the City to EPA, EPA does not have the City's consent to access the requested properties. We look forward to hearing from you and working with you on this matter. Ed Chesney, P.E. Environmental Manager City of Clearwater 100 South Myrtle Avenue, #220 Clearwater Florida, 33756 727 -562 -4742 2 Lopez, Geraldine Campos From: Chesney, Ed Sent: Thursday, April 25, 2013 2:10 PM To: Lopez, Geraldine Campos; Sanderson, Denise Subject: FW: Additional Florida BF Sites FYI From: Baker, Bakari [mailto:Baker.Bakari @epa.gov] Sent: Thursday, April 25, 2013 10:15 AM To: Chesney, Ed Cc: Milligan, Patrick Subject: RE: Additional Florida BF Sites Good morning Ed. I apologize for the delayed response. I have forwarded your questions to OIG management. You will receive a reply to your questions soon. From: Ed.Chesney@myClearwater.com [ mailto :Ed.Chesney@myClearwater.com] Sent: Tuesday, April 23, 2013 2:30 PM To: Baker, Bakari; Ed.Johnson @tampagov.net Cc: Geraldine .Lopez@myClearwater.com; Denise .Sanderson MyClearwater.com Subject: RE: Additional Florida BF Sites Bakari, I was out the last half of last week so just getting back with you. Only the first two sites listed below are controlled by the city. The 1573 S Fort Harrison site is privately owned so we cannot speak to its availability. I have been asked if you could provide some more information with respect to the sampling protocol and how any results would be used? Will the city be provided with any kind of assurances from EPA, that allowing access to these sites to evaluate new technologies would not jeopardize the status of these sites? From Baker, Bakari [mailto:Baker.Bakark epa.gov] Sent: Friday, April 19, 2013 1:41 PM To: Chesney, Ed; Ed Johnson Subject: FW: Additional Florida BF Sites We have chosen three different sites as an alternatives to the Singleton Battery and Joshua sites. Would we be able to visit these sites while we are in Tampa? Please see below. St. Vincent de Paul of Pinellas County Site Clearwater Automotive Salvage Yard 1573 S Fort Harrison Ave Site 110042301265 110038699281 110042300364 27.96519 - 82.79248 27.96210 - 82.79176 1015 Cleveland Street 205, 317 & 319 S. Martin Luther King Blvd. Clearwater Clearwater 27.94037 - 82.79816 1573 S Fort Harrison Avenue Clearwater Petroleum Products, Asbestos, PARS, VOCS Soil, Ground Water 1 EXHIBIT N [Form of Agreement for Restricted Land Use] THIS AGREEMENT is made and entered into this _ day of , by and between PROSPECT PARK DEVELOPMENT, LLC, located at 477 Commerce Way Suite 115, Longwood, Florida 32750 ( "DEVELOPER ") and the City of Clearwater, a municipal corporation of the State of Florida, located at ( "CITY ") (collectively the "PARTIES "). WHEREAS, the DEVELOPER is the owner of that certain real property as described in Exhibit "A" ( "Developer Property "), attached hereto and made a part hereof. WHEREAS, the CITY is the owner of that certain real property as described in Exhibit "B" ( "City Property "), attached hereto and made a part hereof; and WHEREAS, the DEVELOPER and the CITY agree that placing certain land use restrictions on the City Property will accommodate and allow for the required permitting and approval of the intended development of the Developer Property; and WHEREAS, the City, on behalf of its citizens, encourages and shall benefit from such development. THEREFORE, for and in consideration of the mutual covenants herein contained, together with other good and valuable consideration, the receipt of which is herby acknowledged, the PARTIES agree as follows: 1. It is distinctly understood and agreed to by the PARTIES hereto that the City Property shall not be used for the development or building of any habitable structure within 30 feet of the Developer Property, and that such area is hereby designated as a zone that limits construction so as to provide for the applicable code compliance standards required for any buildings neighboring on the Developer Property with respect to Table 600 and horizontal separations (as provided for in the 2010 Florida Building Code). 2. That this Agreement shall be recorded in the Public Records of Pinellas County, Florida, to serve as record notice to successors in interest of the restriction on the City Property. 3. It is agreed that this document contains the entire agreement between the PARTIES as to the matter herein contained, and this Agreement shall not be modified except by an amendment in writing, signed by all PARTIES hereto. IN WITNESS WHEREOF, the parties have executed this agreement on the day and year first above written. [SIGNATURE PAGE FOLLOWS] N -1 63 Countersigned: Mayor Approved as to form: Pamela K. Akin City Attorney STATE OF FLORIDA ) COUNTY OF ) CITY OF CLEARWATER FLORIDA, a municipal corporation of the State of Florida By: By : Rosemarie Call City Clerk The foregoing instrument was acknowledged before me this day of , 2014, by , as of , a limited liability company. He /she [ ] is personally known to me or [ ] has produced the following as identification: on behalf of the Company. STATE OF FLORIDA ) COUNTY OF ) Notary Public PROSPECT PARK DEVELOPMENT, LLC a Florida limited liability company By: FDG — Prospect Park Development, LLC a Florida limited liability company its Operating Manager By: Name: Its: The foregoing instrument was acknowledged before me this day of 2014, by , as of FDG - Prospect Real Estate Group, LLC, the Operating Manager of Prospect Park Development, LLC, a Florida limited liability company, on behalf of the company. He /She is personally known to me or who produced as identification. Print/Type Name: Notary Public N -2 64