DEVELOPMENT AGREEMENT - CLEARWATER CENTRE DEVELOPMENTDEVELOPMENT AGREEMENT
(Clearwater Centre Development)
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This Deye ment Agreement ("Agreement") is made as of this �'i day
of , 200 ��and between the COMMUNITY REDEVELOPMENT AGENCY OF
T CI OF CLE�RWATER, FLORIDA, a public body corporate and politic of the State
of lorida created pursuant to Part III, Chapter 163, Florida Statutes ("Agency"), and
CLEARWATER CENTRE, L.L.C., a Florida limited liability company ("Developer").
WITNESSETH:
WHEaEAS, the Agency and Developer have entered into and concluded negotiations of
a developmemt agreement pursuant to Developer's request for specific assistance as outlined
herein, pertaining to and setting forth the terms and conditions for the development of certain
parcels located at the northeast corner of the intersection of Cleveland Street and MLK Jr.
Avenue, Clearwater, Florida, and legally described as set forth in Exhibit A, known as
Clearwater Centre in the community redevelopment area of the City;
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WHEREAS, at a duly called public meeting on 1�, 200(� the
Agency approved this Agreement and authorized and direct its exe ution by the appropriate
officials of the Agency;
WHEREAS, the Members (as that term is defined in the operating agreement of the
Developer) of Developer have approved this Agreement and has authorized and directed
certain individuals to execute this Agreement on behalf of Developer; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.01. Definitions. The terms defined in this Article I shall have the following
meanings, except as herein othervvise 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.
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(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 Development Agreement, including any Exhibits, and
any amendments hereto or thereto.
(4) "Agreement Expiration Certificate means the instrument executed by the parties
hereto as provided in Section 11.19 certifying that all obligations of the parties hereto have been
satisfied and this Agreement has expired in accordance with its terms, the form of which is
attached hereto as Exhibit E.
(5) "Agreement Termination Certificate" means the instrument executed by the
parties hereto as provided in Section 9.06 stating that this Agreement has been terminated prior
to its Expiration Date as provided in Section 9.05, the form of which is attached hereto as
Exhibit F.
(6) "Allowable Retail Uses" means a neighborhood commercial retail establishment,
not otherwise prohibited by zoning, that sells or leases goods directly to the consumer. The
Town Lake Residential District envisions a residential district with neighborhood commercial
uses. New commercial uses should be of the type and scale to serve the new residential
development. More intense commercial and office development may be permitted, however,
along major streets such as Myrtle Avenue, Cleveland Street, Martin Luther King, Jr. Avenue
and Court and Chestnut Streets.
(7) "Area" means the area located within the corporate limits of the City having
conditions of slum and blight (as those conditions are defined in the Act) as found by the City
Council in Resolution No. 81-67, adopted by the City Council on August 6, 1981, and as
amended by Resolution No. 03-22, adopted by the City Council on May 1, 2003.
(8) "Authorized Representative" means the person or persons designated and
appointed from time to time as such by the Developer or the Agency, respectively, pursuant to
Section 2.04.
(9) "Building Permit" means, for all or any part of the CleanNater Centre Project to be
constructed on the Site, a permit issued by the City authorizing, allowing and permitting the
commencement, prosecution and completion of construction to the extent provided in said
permit.
(10) "City" means the City of Clearwate�, Florida, a Florida municipal corporation, and
any successors or assigns thereto.
(11) "City Council" means the governing body of the City, by whatever name known or
however constituted from time to time.
(12) "Commencement Date" means the date of issuance of the first Building Permit
for any part of the Clearwater Centre Project.
(13) "Completion Date" means the date on which construction of the Project is
substantially complete as evidenced by a Completion Certificate.
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(14) "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 Clearwater Centre Project, or any portion thereof, on the Project
Site, including, financing costs, "soft costs," overhead, and the design, construetion and
equipping of the Clearwater Centre Project.
(15) "Construction Lender" means any person or persons providing the
Construction Financing or any portion thereof.
(16) "Contractor" means one or more individuals or firms constituting a general
contractor or other type of construction contractor properly licensed by the State of Florida or
other appropriate jurisdiction to the extent required by applicable law, authorized to perform
construction contractor services in the State of Florida, registered with the City as required by
applicable law, bonded and insured to the extent required by applicable law and this Agreement,
including the Developer or any affiliates of the Developer.
(17) "Developer" means Clearwater Centre, L.L.C., a Florida limited liability company,
and any successors and assigns thereof, including any entity, partnership, joint venture, or other
person in which Clearwater Centre, L.L.C., is a general partner or principal, but not including
any entity, partnership, joint venture, or other person in which Clearwater Centre, L.L.C. is a
general partner or principal which is not undertaking or participating in any development of the
Clea►water Centre Project, or any part thereof. For purposes of the Performance Mortgage
provided as security for performance of obligations contained herein, Developer shall also
include Sebastian Dorner and Elizabeth Dorner, his wife ("Dorner") whose mailing address is
1180 Gulf Blvd., Clearwater Florida 33767. Nevertheless, Dorner shall have no personal liability
for the obligations of the Developer herein beyond providing security in the form of the
Performance Mortgage.
(18) "Effective Date" means the date determined in accordance with Section 11.20
when the Memorandum of Development Agreement is recorded and this Agreement becomes
effective.
(19) "Exhibits" means those agreements, diagrams, drawings, specifications,
instruments, forms of instruments, and other documents attached hereto and designated as
exhibits to, and incorporated in and made a part of, this Agreement.
(20) "Expiration Date" means the date on which this Agreement expires, as evidenced
by the Agreement Expiration Certificate being recorded in the public records of Pinellas County,
Florida, as provided in Section 11.19 hereof.
(21) "Impact Fees" means those fees and charges levied and imposed by the City,
Pinellas County and any other governmental entity on projects located on the Site for certain
facilities and services impacted by development such as the Project but for the purposes of this
Development Agreement, shall not include the fees or costs pursuant to the Public Art and
Design Program (section 3-2401 through 3.2406 of the Clearwater Community Development
Code)
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(22) "Permits" means all zoning, variances, approvals and consents required to be
granted, awarded, issued, or given by any governmental authority in order for construction of
the Project, or any part thereof, to commence, continue, be completed or allow occupancy and
use, but does not include the Building Permit.
(23) "Plan" means the community redevelopment plan for the Area, including the Site,
as adopted by the City Council on September 18, 2003, by enactment of its Ordinance No. 7153-
03, and including any amendments to the Plan.
(24) "Project" means the Clearwater Centre Project. The Project is a mixed-use
development with a maximum of 88 residential condominium units; approximately 214 private
parking spaces; and not more than 21,498 square feet of non-residential area comprised of
approximately 15,498 square feet of ground level retail space and approximately 6,000 square
feet of office space and Sidewalk Improvements. The Community Development Board (CDB)
issued flexible Development Approval on July 18, 2006.
(25) "Project Plans and Specifications" means the plans and specifications pertaining
to the construction, installation and equipping of the Clearwater Centre Project, including the
schedule for completing the Project, consisting of the plans and specifications.
(26) "Project Professionals" means any architects, attorneys, brokers, engineers,
consultants, planners, construction managers or any other persons, or combination thereof,
retained or employed by the Developer in connection with the planning, design, construction,
permit applications, completion and opening of the Project, but does not include the Developer.
(27) "Proposal" means the proposal for redevelopment of the Site, per the Site Plan
submitted by Developer and approved by the CDB on July 18, 2006.
(28) "Sidewalk Improvements" means construction of public sidewalks, including but
not limited to sidewalks, site fumishings, landscaping, public art and sidewalk material finishes
to be located on the Site and adjacent public right-of-way.
(29) "Site" means that certain property with a street address of 1100 Cleveland Street,
located in Clearwater, Florida, as more particularly described on Exhibit A attached hereto, on
which the Clearwater Centre Project is to be located.
(30) "Site Plan" means the depiction and description of the Project on the Site, the
initial version of which is attached hereto as Exhibit B.
(31) "Termination Date" means the date on which this Agreement is terminated by
any party hereto as provided in Section 9.05, and as evidenced by the Agreement Termination
Certificate.
(32) "Unavoidable Delay" means those events constituting excuse from timely
performance by a party hereto from any of its obligations hereunder, as such events are defined
in and subject to the conditions described in Article 10 hereof.
(33) "Clearwater Centre ProjecY' means the development comprised of not more than
88 residential condominium units and appurtenant facilities, approximately 214 private parking
spaces, and not more than 21,498 square feet of non-residential area comprised of
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approximately 15,498 square feet of ground level Allowable Retail Uses, approximately 6000 sq.
ft. of office and Sidewalk Improvements, to be located on the Site as contemplated by the
Proposal and this Agreement and constructed substantially in accordance with the Plans and
Specifications.
1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Unless the context
shall otherwise indicate, the singular shall include the plural as well as the singular number, and
the word "person" shall include corporations and associations, including public bodies, as well
as natural persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and
other equivalent words refer to this Agreement and not solely to the particular portion thereof in
which any such word is used.
1.03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes
(2005), as amended from time to time.
ARTICLE 2. PURPOSE; PROPOSAL
2.01. Intent; Purpose of Aqreement.
(a) The purpose of this Agreement is to (i) secure economic assistance through the
Agency which supports the implementation of the City of Clearwater's "District Vision" for the
revitalization of the Downtown Core; and (ii) to further the implementation of the Plan by the
development and construction and operation of the Project thereon in accordance with the
Project Plans and Specifications, all to enhance the quality of life, increase employment and
improve the aesthetic and useful enjoyment of the Area through the eradication of conditions of
blight, all in accordance with and in furtherance of the Plan and as authorized by and in
accordance with the Act.
(b) (1) The Site is to be redeveloped according to Project Plans and
Specifications for use as not more than 88 residential condominium units, approximately 214
private parking spaces, approximately 15,498 square foot of ground level Allowable Retail Uses,
approximately 6000 sq. ft. of office and Sidewalk Improvements.
(2) As provided in this Agreement, the Agency shall undertake certain public
actions pursuant to the Act and as implementation of the Plan, and provide assistance in
obtaining such approvals by govemmental authorities as are necessary for development of the
Project.
(c) As provided in this Agreement, the Developer shall carry out the redevelopment
of the Site by obtaining approvals by governmental authorities necessary for development of the
Project, and constructing various private improvements on the Site.
2.02. Developer's Proposal.
(a) The Proposal for the redevelopment of the Site, specifically including the design,
construction, equipping, completion and use of the Project, and each component thereof, is
hereby found by the Agency and acknowledged by the Developer: (1) to be consistent with and
in furtherance of the objectives of the Plan, (2) to conform to the provisions of the Act, (3) to be
in the best interests of the citizens of the City, (4) to further the purposes and objectives of the
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Agency, and (5) to further the public purpose of eradicating conditions of blight in the Area.
The parties recognize and agree that during the process of review and approval provided for in
the Agreement the design of the Project may be subject to change and modification as may be
either agreed to by the parties or required as provided herein or by the appropriate regulatory
authority, and should any changes be necessary or desirable the parties agree that they will act
expeditiously and reasonably in reviewing and approving or disapproving any changes or
modifications to the Project.
(b) Based upon and as a result of the findings set forth in subsection (a) above, the
Proposal, including such changes and revisions as are provided by this Agreement, is hereby
affirmed by the Developer and approved and accepted by the Agency.
2.03. Cooperation of the Parties. The parties hereto recognize that the successful
development of the Project and each component thereof is dependent upon continued
cooperation of the parties hereto, and each agrees that it shall act in a reasonable manner
hereunder, provide the other party with complete and updated information from time to time,
with respect to the conditions such party is responsible for satisfying hereunder and make its
good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this
Agreement are carried out to the full extent contemplated hereby and the Project is designed,
constructed, equipped, completed and operated as provided herein.
2.04. Authorized Representative.
(a) Each party shall designate an Authorized Representative to act on its behalf to
the extent of the grant of any authority to such representative. Written notice of the designation
of such a representative (and any subsequent change in the Authorized Representative) shall
be given by the designating party to the other party in writing in accordance with the procedure
set forth in Section 11.03 hereof.
(b) Except as otherwise expressly provided in this Agreement, whenever approval or
action by the Developer or the Agency is required by this Agreement, such action or approval
may, in the discretion of the party considering such approval or action, be taken or given by the
Authorized Representative thereof. A party to this Agreement may rely upon the representation
of the other party's Authorized Representative that such person has the requisite authority to
give the approval or take the action being done by that Authorized Representative. A party may
not later deny that its Authorized Representative had the authority represented to and relied
upon by the other party or revoke or deny any action taken by such Authorized Representative
which was relied upon by the other party.
(c) The Developer does hereby notify the Agency that its initial Authorized
Representative for the Project is Guy M. Bonneville of Clearwater Centre, LLC.
(d) The Agency does hereby notify the Developer that its initial Authorized
Representative is Rod Inivin, Executive Director of the CRA.
ARTICLE 3. LAND USE REGULATION.
3.01. Zonin . On the Effective Date, the zoning classification for the Site is "Downtown
District", abbreviated as "D." The parties recognize and acknowledge that the zoning
classification of the Site as of the Effective Date, as well as the Flexible Development Approval
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issued by the Community Development Board (CDB) on July 18, 2006, permits development of
the Project.
3.02. Redeveloqment Plan. The Agency represents to the Developer and the
Developer acknowledges that as of the Effective Date, the Site is in the Town Lake Residential
District and the provisions of the Plan pertaining to the Site were consistent with the Clearwater
Centre Project as contemplated by the Proposal and this Agreement.
3.03. Development of Reqional 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 impacY' within the meaning of Section 380.06,
Florida Statutes.
3.04. Permits.
(a) The Developer shall prepare and submit to the appropriate governmental
authorities, including the City, the applications for each and every Building Permit and any and
all necessary Permits for the Project, and shall bear all costs of preparing such applications,
applying for and obtaining such permits including applicable application, inspection, regulatory
and Impact Fees or charges pertaining to the Project, including, but not limited to, any such
permit, review, application, inspection, regulatory or Impact Fees except as otherwise provided
in Article 6.
(b) The Agency shall cooperate with the Developer in obtaining all necessary
Permits and the Building Permits required for the construction and completion of the Project.
(c) The Agency's duties, obligations, or responsibilities under any section of this
Agreement, specifically including but not limited to this Section 3.04 do not affect the Agency's
or the City's right, duty, obligation, authority and power to act in its governmental or regulatory
capacity in accordance with applicable laws, ordinances, codes or other building or project
regulation.
(d) Notwithstanding any other provisions of this Agreement, any required permitting,
licensing or other regulatory approvals by the Agency or the City shall be subject to the
established procedures and requirements of the Agency or the City with respect to review and
permitting of a project of a similar or comparable nature, size and scope. In no event shall the
Agency or the City, due to any provision of this Agreement, be obligated to take any action
concerning regulatory approvals except through its established processes and in accordance
with applicable provisions of law.
3.05. Concurrencv.
(a) The parties hereto recognize and acknowledge that Florida law (specifically, Part
II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, collectively the
"Growth Management Act") impose restrictions on development if adequate public
improvements are not available concurrently with that development to absorb and handle the
demand on public services caused by that development. The City has created and
implemented a system for monitoring the effects of development on public services within the
City. The Developer recognizes and acknowledges it must satisfy the concurrency requirements
of Florida law as applied to the Project. Specifically, the Developer covenants and agrees to
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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 simifar
document by whatever name known and a reservation of services capacity under the City's
concurrency management system, and does further agree to maintain such certificate and
reservation. The Developer covenants and agrees with the Agency not to undertake any action,
or fail to take any action, which would cause the City to revoke or invalidate the concurrency
compliance certificate or the reservation of services capacity.
3.06. Not a Development Order or Permit. The parties do hereby acknowledge, agree
and represent that this Agreement is not intended to be and should not be construed or deemed
to be a"development order" or "development permit" within the meaning of those terms in
Section 163.3164, Florida Statutes.
3.07. Permitted Uses.
(a) The Project shall consist of not more than 88 residential condominium dwelling
units and associated amenities.
(b) The Project shall have approximately 214 private parking spaces.
(c) The project shall contain not more than 21,498 square feet of non-residential
area that includes approximately 15,498 square feet of Allowable Retail Uses on the first floor
and approximately 6000 sq. ft. of office.
(d) The Developer shall actively market and use his best efforts to obtain tenants for
the first floor retail space as one or more of the Allowable Retail Uses described herein.
(e) Provided however, the following uses are prohibited:
All uses prohibited by the Clean�vater powntown Redevelopment Plan.
2. A liquor store, however excluding a wine store.
3. A lounge and/or nightclub, however excluding a wine bar.
(fl Notwithstanding the uses prohibited in (e)2 and 3 above, an otherwise properly
licensed and permitted, allowable retail use as defined in 1.01.(6) hereinabove, including, but
not limited to a restaurant, deli, grocery store, convenience store, etc., shall not be prohibited
from package sales and/or sale by the drink for consumption on premises of beer, wine and
liquor.
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2. A liquor store, however excluding a wine store.
3. A lounge and/or nightclub, however excluding a wine bar.
(� Notwithstanding the uses prohibited in (e)2 and 3 above, an otherwise properly
licensed and permitted, allowable retail use as defined in 1.01.(6) hereinabove, including, but
not limited to a restaurant, deli, grocery store, convenience store, etc., shall not be prohibited
from package sales and/or sale by the drink for consumption on premises of beer, wine and
liquor.
(g) Establishments offering package sales and/or sale by the drink for consumption
on premises of beer, wine and liquor, shall be limited as follows:
1. The hours of operation for such sales shall be limited to 11 P.M. Sundays
through Thursdays and 12 A.M. Fridays and Saturdays; and
2. Unless otherwise prohibited by law, the hours of operation may be
extended until 1 A.M. Sundays through Thursdays and 2 A.M. Fridays and Saturdays on those
days and only those days on which a public event, that is well publicized within local
newspapers, that takes place within the boundaries of the downtown expanded periphery, that
invites the general public, and which operates to at least 10 P.M. on the day extended hours are
made available.
ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS.
4.01. Site Plan.
(a) The Developer has prepared and received approval from the CDB of a Site Plan,
a copy of which is attached hereto as Exhibit B, that contemplates development of the Project
consistent with this Agreement. The Developer agrees that during the term of this Agreement
any material changes to the Site Plan or any subsequent versions of the Site Plan will be
submitted to the City, for review in accordance with the Land Development Code and Agency
for approval which Approval shall not be unreasonably withheld or delayed.
(b) The Site Plan approved by the CDB, is hereby accepted by the Agency and shall
be the basis for and incorporated into the Project Plans and Specifications.
ARTICLE 5. CONSTRUCTION OF THE PROJECT.
5.01. Site Clearance. Permits issued by the City for pre-construction activities on the
Site, including site clearance, utility relocation, and interior demolition, shall not be considered a
Building Permit for purposes of this Agreement.
5.02. Construction of the Proiect.
(a) (1) The Developer shall construct the Project on the Site substantially in
accordance with the Project Plans and Specifications therefor. Subject to Unavoidable Delay
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(b), "abandoned" means to have ceased any construction work which effectively advances the
construction of the Project toward completion. The Project shall be completed by no later than
two years from the issuance of the first building permit.
(2) All obligations of the Developer with respect to commencement,
continuation and completion of construction of the Project shall be subject to delays and
extensions from time to time for Unavoidable Delay. The Developer shall not be deemed to be
in default of this Agreement to the extent construction or completion of the Project, or any part
thereof, is not complete by reason of Unavoidable Delay.
(c) For purposes of this Section 5.02, "completion," "complete," "substantially
complete" or "substantial completion" means, with respect to construction of the retail space of
the Project, a Certificate of Occupancy for the shell of any structure (not including tenant
improvements for the retail space) has been issued by the City; or for the residential and garage
areas, the issuance of a Certificate of Occupancy for each residential condominium unit and the
garage.
(d) If the Agency believes adequate progress in the construction of the Project is not
being made, the Agency shall give notice to the Developer that adequate progress is apparently
not being made in the construction of the Project and to respond within ten (10) business days
thereafter as to why adequate progress is or is not being made toward completion of the
Project.
5.03. Proiect 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 use contemplated by this Agreement; provided, however, that prior to the
commencement of any material alterations or improvements of sufficient size and scope as to
constitute a material change in the previously approved Project Plans and Specifications, the
Developer shall notify the Agency of such material change and may submit a change,
amendment or revision to the Project Plans and Specifications to the Agency for review.
Nothing in this Section 5.03 is intended nor shall be deemed to limit or restrict the exercise of
govemmental or regulatory powers or authority by the City or any other governmental entity or
to enlarge its regulatory authority.
5.04. Completion Certificate.
(a) (1) Upon the substantial completion of the construction of the Project in
accordance with the provisions of this Article 5, the Developer shall prepare and execute the
Completion Certificate, which shall then be delivered to the Agency. Upon receipt of the
certificate the Agency shall promptly and diligently proceed to determine if construction of the
Project has been completed substantially in accordance with the Project Plans and
Specifications and this Agreement. Upon making such a determination, the Agency shall
execute the certificate and return it to the Developer. The date of the Completion Certificate
shall be the date when all parties shall have executed said certificate.
(2) The Completion Certificate shall constitute a conclusive determination by
the parties hereto of the satisfaction and termination of the obligations of the Developer
hereunder to construct the Project; provided, however, that nothing in this Section 5.04 shall be
a waiver of the rights, duties, obligations or responsibilities of the City or any other governmental
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entity acting in its regulatory or governmental capacity or an approval of said construction for
purposes of the issuance of a certificate of occupancy for the Project.
(3) The parties agree that it is their intent that the review by the Agency for
purposes of the Completion Certificate determination pursuant to this Section 5.04 is not to be
an additional or duplicate inspection over and above that required for purposes of the Building
Permit, including the issuance of a certificate of occupancy. The Agency agrees that for
purposes of determining if the Project has been substantially completed in accordance with the
Project Plans and Specifications, the issuance of a certificate of occupancy for the Project shall
be a conclusive determination of substantial completion for purposes of this subsection (a) and,
if such certificate has been determined to have been issued, then the Agency agrees to execute
the Completion Certificate.
(b) (1) If the Agency shall refuse or fail to execute the Completion Certificate
after receipt of a request by the Developer to do so, then the Agency shall, within ten (10) days
after its receipt of such request, provide the Developer with a written statement setting forth in
reasonable detail the reason(s) why the Agency has not executed the Completion Certificate
and what must be done by the Developer to satisfy such objections so that the Agency would
sign the certificate. Upon the Developer satisfying the Agency's objections, then the Developer
shall submit a new request to the Agency for execution of the Completion Certificate and that
request shall be considered and acted upon in accordance with the procedures in paragraph
(a)(1) forthe original request.
(c) The Completion Certificate shall be in a form sufficient to be recorded in the
public records of Pinellas County, Florida. After execution by the Agency, it shall be promptly
returned to the Developer who shall record the certificate in the public records of Pinellas
County, Florida, and pay the cost of such recording.
5.05. Aqencv Not in Privitv with Contractors. The Agency shall not be deemed to be in
privity of contract with any Contractor or provider of goods or services with respect to the
construction of any part of the Project.
5.06 Securitv for Develoaer's Performance. In consideration of the advancements,
reimbursements and payments made by the Agency pursuant to Article 6 hereof, Developer
shall provide a Performance Mortgage to secure the funds so paid, in substantially the form as
set forth and attached hereto as Exhibit C. Before any funds are paid, the mortgage shall be in
place, securing a second lien position on the property so identified for Agency payments. This
obligation and the Performance Mortgage provided hereto shall survive termination as provided
in paragraph 9.05 and 9.06. Upon issuance of the Completion Certificate, the Agency shall
cancel and release the Performance Mortgage and the same shall be of no further force and
effect.
ARTICLE 6. PAYMENTS BY AGENCY.
6.01. Pavment of BuildinQ Permit and Impact Fees. The Agency shall pay the Projects'
Building Permit and Impact Fees in a total amount not to exceed $425,000. Such payment shall
be made as they become due and payable as provided in the Clearwater Code of Ordinances
and the Clearwater Community Development Code.
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6.02 Pavment of Utilitv Relocation Costs. The Agency shall fund and pay the costs to
relocate the existing water and sewer utilities on the property of the Project into the NE
Cleveland Street right of way per the solution provided by Developer's civil engineer, Keith
Zayac & Associates, as provided in Exhibit G, in a total amount not to exceed $260,000.
6.03 Pavment of Streetscape / Landscape Imqrovements. Upon completion of the
Sidewalk Improvements), the Agency shall pay Developer a total amount not to exceed
$500,000 for Streetscape / Landscape Improvements constructed by the Developer as part of
the Project. Developer shall provide the Agency with documentation verifying expenditures for
the Streetscape / Landscape Improvements. Provided further, the total amount of
reimbursement payments said improvements shall not exceed the total expenditures made by
the Developer for Streetscape / Landscape Improvements for the Project.
6.04 Nothwithstanding paragraphs 6.01 through 6.03 above, the aggregate amount
payable by the CRA shall not exceed $1,040,000.
ARTICLE 7. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE DEVELOPER.
7.01. Representations and Warranties. The Developer represents and warrants to the
Agency that each of the following statements is currently true and accurate and agrees the
Agency may rely upon each of the following statements:
(a) The Developer is a Florida limited liability company duly organized and validly
existing under the laws of the State of Florida, has all requisite power and authority to carry on
its business as now conducted, to own or hold its properties and to enter into and perform its
obligations hereunder and under each document or instrument contemplated by this Agreement
to which it is or will be a party, is qualified to do business in the State of Florida, and has
consented to service of process upon a designated agent for service of process in the State of
Florida.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which Developer is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and delivered by, the Developer,
and neither the execution and delivery thereof, nor compliance with the terms and provisions
thereof or hereof: (1) requires the approval and consent of any other party, except such as have
been duly obtained or as are specifically noted herein, (2) contravenes any existing law,
judgment, governmental rule, regulation or order applicable to or binding on the Developer, (3)
contravenes or results in any breach of, default under or, other than as contemplated by this
Agreement, results in the creation of any lien or encumbrance upon any property of the
Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the
Developer's articles of organization, or, any other agreement or instrument to which the
Developer is a party or by which the Developer may be bound.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Developer is or will be a party constitutes, or when entered into will
constitute, a legal, valid and binding obligation of the Developer enforceable against the
Developer in accordance with the terms thereof, except as such enforceability may be limited by
12
applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles in the event that equitable
remedies are involved.
(d) There are no pending or, to the knowledge of the Developer, threatened actions
or proceedings before any court or administrative agency against the Developer, or against any
controlling manager, member, employee or agent of the Developer, which question the validity
of this Agreement or any document contemplated hereunder, or which are likely in any case, or
in the aggregate, to materially adversely affect the consummation of the transactions
contemplated hereunder or the financial condition of the Developer.
(e) The Developer has filed or caused to be filed all federal, state, local and foreign
tax returns, if any, which were required to be filed by the Developer, and has paid, or caused to
be paid, all taxes shown to be due and payable on such returns or on any assessments levied
against the Developer.
(fl All financial information and other documentation, including that pertaining to the
Project or the Developer, delivered by the Developer to the City and the Agency, was, on the
date of delivery thereof, true and correct.
(g) The principal place of business and principal executive offices of the Developer
are in 1100 Cleveland Street, Suite 101, Clearwater, FL 33755 and, until the expiration or
termination of this Agreement, the Developer will keep original or duplicate records concerning
the Project (such as construction contracts, financing documents and corporate documents) and
all contracts, licenses and similar rights relating thereto at an office located in the corporate
limits of the City of Clearwater.
(h) As of the Effective Date, the Developer has the financial capability to carry out its
obligations and responsibilities in connection with the development of the Project as
contemplated by this Agreement.
(i) The Developer (with the assistance of its Project Professionals) has the
experience, expertise, and capability to develop, cause the construction, and complete the
Project and, oversee and manage the design, planning, construction, and completion of the
Project, and to acquire the Site as provided herein.
7.02. Covenants. The Developer covenants with the Agency that until the earlier of the
Termination Date or the Expiration Date:
(a) The Developer shall timely perform or cause to be performed all of the
obligations contained herein which are the responsibility of the Developer to perform.
(b) The Developer shall assist and cooperate with the Agency to accomplish the
development of the Project by the Developer in accordance with this Agreement, and the
Project Plans and Specifications and will not violate any laws, ordinances, rules, regulations,
orders, contracts or agreements that are or will be applicable thereto, including the Plan and the
Act.
(c) Subsequent to the Effective Date, the Developer shall maintain its financial
capability to develop, construct and complete the Project and shall promptly notify the Agency of
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any event, condition, occurrence, or change in its financial condition which materially adversely
affects, or with the passage of time is likely to adversely affect, the Developer's financial
capability to successfully and completely develop, construct and complete the Project as
contemplated hereby.
(d) The Developer shall promptly cause to be filed when due all federal, state, local
and foreign tax returns required to be filed by it, and shall promptly pay when due any tax
required thereby so as to avoid an uncured tax lien against the Site.
(e) Subject to and except as permitted by Section 7.01, prior to the expiration or
termination of this Agreement, the Developer shall maintain its existence, will not dissolve or
substantially dissolve all of its assets and will not consolidate with or merge into another limited
liability company, corporation, limited partnership, or other entity without the prior approval of
the Agency, unless the Developer is the surviving entity or retains a controlling interest in the
consolidated or merged entity, in which case no consent by Agency shall be required. In any
event, prior to the expiration or termination of this Agreement, the Developer, will promptly notify
the Agency of any changes to the existence or form of the corporation of Developer.
(� The Developer shall not sell, lease, transfer or otherwise dispose of all or
substantially all its assets without adequate consideration and will otherwise take no action
which shall have the effect, singularly or in the aggregate, of rendering Developer unable to
continue to observe and perform the covenants, agreements, and conditions hereof and the
performance of all other obligations required by this Agreement.
(g) Provided all conditions precedent thereto have been satisfied or waived as
provided herein, the Developer shall design, construct and complete the Project such that it is
substantially complete as provided in this Agreement no later than the Completion Date.
7.03 Covenant: Nondiscrimination. The Developer covenants by and for itself and any
successors in interest that there shall be no discrimination against or segregation of any person
or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or
national origin in the marketing, sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the site, nor shall the Developer itself or any person claiming under or through it
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the Site.
ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE AGENCY.
8.01. Representations and Warranties. The Agency represents and warrants to the
Developer that each of the following statements is currently true and accurate and agrees that
the Developer may rely on each of the following statements:
(a) The Agency is a validly existing body corporate and politic of the State of Florida,
is the duly created community redevelopment agency of the City under Part III, Chapter 163,
Florida Statutes (known as the Community Redevelopment Act of 1969), has all requisite
corporate power and authority to carry on its business as now conducted and to perform its
14
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,
govemmental rule, regulation or order applicable to or binding on the Agency, (3) contravenes
or results in any breach of, or default under or, other than as contemplated by this Agreement,
results in the creation of any lien or encumbrance upon any property of the Agency under any
indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances,
resolutions or, on the date of this Agreement, any other agreement or instrument to which the
Agency is a party, specifically including any covenants of any bonds, notes, or other forms of
indebtedness of the Agency outstanding on the Effective Date.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party constitute, or when entered into will
constitute, legal, valid and binding obligations of the Agency enforceable against the Agency in
accordance with the terms thereof, except as such enforceability may be limited by public policy
or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles in the event that equitable
remedies are involved.
(d) There are no pending or threatened actions or proceedings before any court or
administrative agency against the Agency, or against any officer of the Agency, which question
the validity of any document contemplated hereunder, or which are likely in any case, or in the
aggregate, to materially adversely affect the consummation of the transactions contemplated
hereunder or the financial condition of the Agency.
8.02. Covenants. The Agency covenants with the Developer that until the earlier of the
Termination Date or the Expiration Date:
(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
15
adopt or urge or encourage the adoption of any ordinances, resolutions, rules, regulations or
orders or approve or enter into any contracts or agreements, including issuing any bonds, notes,
or other forms of indebtedness, that will result in any provision of this Agreement to be in
violation thereof.
(d) The Agency shall maintain its financial capability to carry out its responsibilities
as contemplated by this Agreement and shall notify the Developer of any event, condition,
occurrence, or change in its financial condition which adversely affects, or with the passage of
time is likely to adversely affect, the Agency's financial capability to carry out its responsibilities
contemplated hereby.
ARTtCLE 9. DEFAULT; TERMINATION.
9.01. Default bv Developer.
(a) Provided the Agency is not then in default of this Agreement under Section 9.02
hereof, there shall be an "event of default" by the Developer upon the occurrence of any one or
more of the following after the Effective Date:
(1) The Developer shall fail to perform or comply with any material provision
of this Agreement applicable to it within the time prescribed therefor; provided, however, that
suspension of or delay in performance by the Developer during any period in which the Agency
is in default of this Agreement as provided in Section 9.02 hereof will not constitute an event of
default by the Developer under this subsection (a); or
(2) The Developer shall make a general assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a
petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition
seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation or shall file an answer
admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it
in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or
(3) Within sixty (60) days after the commencement of any proceeding by or
against the Developer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute, law or regulation,
such proceeding shall not have been dismissed or otherwise terminated, or if, within sixty (60)
days after the appointment without the consent or acquiescence of the Developer of any trustee,
receiver or liquidator of any of such entities or of any material part of any of such entity's
properties, such appointment shall not have been vacated.
(b) (1) If an event of default by the Developer described in subsection (a) above
shall occur, the Agency shall provide written notice thereof to the Developer, and, if such event
of default shall not be cured by the Developer within thirty (30) days after receipt of the written
notice from the Agency specifying in reasonable detail the event of default by the Developer, or
if such event of default is of such nature that it cannot be completely cured within such time
period, then if the Agency is not then in default of this Agreement and the Developer shall not
have commenced to cure such default within such thirty (30) day period and shall not diligently
prosecute such cure to completion within such reasonable longer period of time as may be
16
necessary then, in addition to any remedy available under Section 9.03, the Agency may
terminate this Agreement or pursue any and all legal or equitable remedies to which the Agency
is entitled, provided, however, if the Developer shall fail to cure such event of default within said
thirty (30) day or longer period or ceases to proceed diligently to timely cure such event of
default, then the Agency may proceed to enforce other available remedies without providing any
additional notice to the Developer. The Agency shall have no obligation to make the payments
provided in Article 6 herein, while developer is in default.
(2) Any attempt by the Agency to pursue any of the above referenced
remedies will not be deemed an exclusive election of remedy or waiver of the Agency's right to
pursue any other remedy to which either may be entitled.
(3) Any time periods or deadlines provided in this Agreement shall be tolled
or extended by the amount of time to cure any event of default hereunder if such event affects
the Developer's or Agency's ability to perform by such deadline or the expiration of such period.
(d) In the event of a termination of this Agreement pursuant to this Section 9.01, the
Agency shall not be obligated to make or to continue to make any payments provided for in
Article 6.
9.02. Default bv the Aqencv-
(a) Provided the Developer is not then in default under Section 9.01, there shall be
an "event of default" by the Agency under this Agreement in the event the Agency shall fail to
perform or comply with any material provision of this Agreement applicable to it; provided,
however, that suspension of or delay in performance by the Agency during any period in which
the Developer is in default of this Agreement as provided in Section 9.01 hereof will not
constitute an event of default by the Agency under this subsection (a).
(b) If an event of default by the Agency described in subsection (a) shall occur, the
Developer shall provide written notice thereof to the Agency, and, after expiration of the curative
period described in paragraph (c) below, may terminate this Agreement, institute an action to
compel specific performance of the terms hereof by the Agency or pursue any and all legal or
equitable remedies to which the Developer is entitled; provided, however, if the event of default
by the Agency occurs on or prior to the Commencement Date, any monetary recovery by the
Developer in any such action shall not include any lost profits or consequential damages and
shall be limited to bona fide third-party out-of-pocket costs and expenses, including reasonable
attorneys' fees, incurred by the Developer in connection with the negotiation of this Agreement
as well as any investigation, due diligence, development, design or construction costs incurred
by the Developer in connection with the proposed acquisition and development of the Site,
unless any such default by the Agency was willful and committed in bad faith with reckless
disregard for the rights of the Developer.
(c) The Developer may not terminate this Agreement or institute an action described
in paragraph (b) above if the Agency cures such event of default within thirty (30) days after
receipt by the Agency of written notice from the Developer specifying in reasonable detail the
event of default by the Agency, or if any such event of default is of such nature that it cannot be
completely cured within such period, then within such reasonably longer period of time as may
be necessary to cure such default, provided however, if the Agency is proceeding diligently and
in good faith, the curative period shall be extended for a period of not exceeding an aggregate
17
of thirty (30) days without any approval or consent of the Developer being required, but such
approval will be required (and shall be given or withheld in Developer's sole discretion) if the
curative period is to be extended beyond thirty (30) days after the notice of default has been
given by the Developer to the Agency if the Agency has commenced to cure such default within
such thirty (30) day period and is diligently prosecuting such curative action to completion. The
Agency shall within said thirty (30) day period or such longer period promptly, diligently and in
good faith proceed to cure such event of default after receipt of the notice from the Developer
and shall succeed in curing such event of default within said period of time, provided, however,
if the Agency shall fail to cure such event of default within said thirty (30) day or longer period or
ceases to proceed diligently to timely cure such event of default, then the Developer may
proceed with its available remedies without providing any additional notice to the Agency.
(d) Any attempt by the Developer to pursue any of the remedies referred to in
paragraphs (a), (b), or (c) above will not be deemed an exclusive election of remedy or waiver of
the Developer's nght to pursue any other remedy to which it might be entitled.
(e) Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if such event affects the
Develope�'s or Agency's ability to perform by such deadline or the expiration of such period.
9.03. Obliqations, Riqhts and Remedies Cumulative. Unless specifically stated herein
to the contrary, the specified rights and remedies to which either the Agency or the Developer
are entitled under this Agreement are not exclusive and are intended to be in addition to any
other remedies or means of redress to which the Agency or the Developer may lawfully be
entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in,
the performance of its obligations by the Developer, while the Agency shall at such time be in
default of their obligations hereunder shall not be deemed to be an "event of default." The
suspension of, or delay in, the performance of the obligations by the Agency while the
Developer shall at such time be in default of its obligations hereunder shall not be deemed to be
an "event of default" by the Agency.
9.04. Non-Action on Failure to Observe Provisions of this Actreement. The failure of
the Agency or the Developer to promptly or continually insist upon strict performance of any
term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other
agreement, instrument or document of whatever form or nature contemplated hereby shall not
be deemed a waiver of any right or remedy that the Agency or the Developer may have, and
shall not be deemed a waiver of a subsequent default or nonperformance of such term,
covenant, condition or provision.
9.05. Termination.
(a) The Developer and the Agency acknowledge and agree that as of the Effective
Date certain matters mutually agreed by the parties hereto are essential to the successful
development of the Project have not been satisfied or are subject to certain conditions, legal
requirements or approvals beyond the control of any of the parties hereto or which cannot be
definitely resolved under this Agreement. In recognition of these events or conditions, the
parties hereto mutually agree that, provided the appropriate or responsible party therefor
diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or
condition to occur or be satisfied, the failure of the events or conditions listed in subsection (b)
below to occur or be satisfied shall not constitute an event of default by any party under this
18
Article 9, but may be the basis for a termination of this Agreement as provided in this Section
9.05.
(b) In addition to any other rights of termination provided elsewhere in this
Agreement, this Agreement may be terminated as provided in subsection (c) after the
occurrence of any of the following events or conditions:
(1) All of the Site is taken by the exercise of the power of eminent domain by
a governmental authority (except the City or the Agency) or a person entitled to exercise such
power or benefiting therefrom, or such part of the Site is taken by the power of eminent domain
so as to render the Project commercially unfeasible or unusable for its intended uses as
contemplated by this Agreement;
(2) The appropriate governmental authority (but not including the City in
exercise of its govemmental and regulatory authority and responsibility), upon petition by the
Developer, unduly delays or denies or fails to issue the Permits, issue the Building Permits, or
approve any other land use approval necessary to commence construction of the Project on the
Site;
(3) A moratorium on new construction is imposed by a governmental
authority within the City or Pinellas County so as to prevent construction of the Project to
commence;
(4) The City or other appropriate governmental authority has issued a
concurrency compliance certificate or a reservation of services capacity as described in Section
3.05 and such certificate or reservation has been revoked, repealed, superseded, or otherwise
no longer of any effect or the Developer is unable to rely upon such certificate or reservation, if
such a certificate or reservation is required for development of the Project on the Site, and the
Developer cannot obtain a new or replacement certificate or reservation for the Project.
(5) The City approves an amendment to the Plan which is inconsistent with
the Project being located on the Site.
(c) Upon the occurrence of an event described in subsection (b), then the Developer
or the Agency may upon determining that such event cannot reasonably be expected to change
in the foreseeable future so as to allow development of the Project, may elect to terminate this
Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence
of such event or the determination of inability to cause a condition precedent to occur or be
satisfied, stating its election to terminate this Agreement as a result thereof, in which case this
Agreement shall then terminate, provided, however, only the Developer may elect to terminate
this Agreement upon the occurrence of an event described in paragraph (5) and (6).
(d) In the event of a termination pursuant to Section 9.05(b), neither the Developer
nor the Agency shall be obligated or liable one to the other in any way, financially or otherwise,
for any claim or matter arising from or as a result of this Agreement or any actions taken by the
Developer and the Agency, or any of them, hereunder or contemplated hereby, and each party
shall be responsible for its own costs.
(e) Nofinrithstanding 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
19
such a certificate or reservation is required for development of the Project on the Site, and the
Developer cannot obtain a new or replacement certificate or reservation for the Project.
(5) The City approves an amendment to the Plan which is inconsistent with
the Project being located on the Site.
(c) Upon the occurrence of an event described in subsection (b), then the Developer
or the Agency may upon determining that such event cannot reasonably be expected to change
in the foreseeable future so as to allow development of the Project, may elect to terminate this
Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence
of such event or the determination of inability to cause a condition precedent to occur or be
satisfied, stating its election to terminate this Agreement as a result thereof, in which case this
Agreement shall then terminate, provided, however, only the Developer may elect to terminate
this Agreement upon the occurrence of an event described in paragraph (5).
(d) In the event of a termination pursuant to Section 9.05(b), neither the Developer
nor the Agency shall be obligated or liable one to the other in any way, financially or otherwise,
for any claim or matter arising from or as a result of this Agreement or any actions taken by the
Developer and the Agency, or any of them, hereunder or contemplated hereby, and each party
shall be responsible for its own costs.
(e) Notwithstanding anything to the contrary contained herein, in the event that any
party shall have, but shall not exercise, the right hereunder to terminate this Agreement
because of the non-satisfaction of any condition specified herein, and such condition is
subsequently satisfied, then the non-satisfaction of such condition shall no longer be the basis
for termination of this Agreement.
9.06. Termination Certificate.
(a) In the event of a termination of this Agreement as provided in 9.05 prior to the
Expiration Date, each of the parties hereto do covenant and agree with each other to promptly
execute a certificate prepared by the party electing to terminate this Agreement, which
certificate shall expressly state that this Agreement has been terminated in accordance with its
terms, is no Ionger of any force and effect except for those provisions hereof which expressly
survive termination, that the rights, duties and obligations of the parties hereto have been
terminated and released (subject to those surviving provisions hereof, including but not limited
to paragraph 5.06) and that the Site is no longer subject to any restrictions, limitations or
encumbrances imposed by this Agreement.
(b) The certificate described in subsection (a) shall be prepared in a form suitable for
recording and promptly after execution by all of the parties hereto shall be recorded in the public
records of Pinellas County, Florida. The cost of recording the termination certificate shall be
paid by the terminating party.
9.07 Remedies. All remedies provided for herein and under Florida law shall be
cumulative and shall survive the technical termination of this Agreement pursuant to execution,
delivery and recordation of a Termination Certificate or otherwise hereunder.
ARTICLE 10. UNAVOIDABLE DELAY.
20
party to this Agreement within thirty (30) days following the occurrence of the event or condition
causing the Unavoidable Delay or thirty (30) days following the Applicant becoming aware (or
with the exercise of reasonable diligence should have become aware) of such occurrence.
(d) The Applicant shall be entitled to an extension of time for an Unavoidable Delay
only for the number of days of delay due solely to the occurrence of the event or condition
causing such Unavoidable Delay and only to the extent that any such occurrence actually
delays that party from proceeding with its rights, duties and obligations under this Agreement
affected by such occurrence.
ARTICLE 11. MISCELLANEOUS.
11.01. Assignments.
(a) (1) Prior to the earlier of the Termination Date or the Expiration Date, the
Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest
and obligations in and to the Project, or any part thereof to any person with the prior written
consent of the Agency, provided that such party (hereinafter referred to as the "assignee"), to
the extent of the sale, conveyance, assignment or other disposition by the Developer to the
assignee, shall be bound by the terms of this Agreement the same as the Developer for such
part of the Project as is subject to such sale, conveyance, assignment or other disposition,
except for the sale of a condominium in the ordinary course of business.
(2) If the assignee of Developer's right, title, interest and obligations in and to
the Project, or any part thereof, assumes all of Developer's obligations hereunder for the
Project, or that part subject to such sale, conveyance, assignment or other disposition, then the
Developer shall be released from all such obligations hereunder which have been so assumed
by the assignee, and the Agency agrees to execute an instrument evidencing such release,
which shall be in recordable form.
(b) An assignment of the Project, or any part thereof, by the Developer to any
corporation, limited partnership, general partnership, or joint venture, in which the Developer is
the or a general partner or has either the controlling interest or through a joint venture or other
arrangement shares equal management rights with a financial institution and maintains such
controlling interest or equal management rights for the term of this Agreement shall not be
deemed an assignment or transfer subject to any restriction on or approvals of assignments or
transfers imposed by this Section 11.01, provided, however, that notice of such assignment
shall be given by the Developer to the Agency no less than thirty (30) days prior to such
assignment being effective and the assignee shall be bound by the terms of this Agreement to
the same extent as would the Developer in the absence of such assignment. If the Developer
shall at any time withdraw or be replaced as a general partner or no longer have the controlling
interest or management rights as described in this subsection, then that event shall constitute
an assignment of the Developer's right, title, interest or obligations under this Agreement for
purposes of this Section 11.01 and the prior approval of the Agency shall be obtained before
such an event shall be effective.
11.02. Successors and AssiQns. The terms herein contained shall bind and inure to the
benefit of the Agency, and its successors and assigns, and the Developer, and its successors
and assigns, except as may othervvise be specifically provided herein.
21
11.03. Notices.
(a) All notices, demands, requests for approvals or other communications given by
either party to another shall be in writing, and shall be sent by registered or certified mail,
postage prepaid, return receipt requested or by overnight courier service, facsimile
transmission, or by hand delivery to the office for each party indicated below and addressed as
follows:
To the Developer:
Clearwater Centre, L.L.C.
1100 Cleveland Street
Suite 101
Clearwater, FL 33755
Attention: Guy M. Bonneville
FAX # (727) 588-9404
with copies to:
MacFarlane, Ferguson & McMullen
625 Court Street, Suite 200
Clearwater, FL 33755
Attention: Harry Cline
FAX # (727) 442-8470
To the Agency:
Community Redevelopment Agency of
the City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention: Rod Irwin
FAX # (727) 562-4021
with copies to:
City of Clearwater
112 S. Osceola Avenue
Clearvvater, FL 33756
Attention: City Attorney
FAX # (727) 562-4021
(b) Notices given by courier service or by hand delivery shall be effective upon
delivery and notices given by mail shall be effective on the third (3rd) business day after mailing.
Refusal by any person to accept delivery of any notice delivered to the office at the address
indicated above (or as it may be changed) shall be deemed to have been an effective delivery
as provided in this Section 11.03. The addresses to which notices are to be sent may be
changed from time to time by written notice delivered to the other parties and such notices shall
be effective upon receipt. Until notice of change of address is received as to any particular
party hereto, all other parties may rely upon the last address given.
11.04. Severabilitv. If any term, provision or condition contained this Agreement shall,
to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the
application of such term, provision or condition to persons or circumstances other than those in
respect of which it is invalid or unenforceable, shall not be affected thereby, and each term,
provision and condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
11.05. Applicable Law and Construction. The laws of the State of Florida shall govern
the validity, performance and enforcement of this Agreement. This Agreement has been
negotiated by the Agency and the Developer, and the Agreement, including, without limitation,
the Exhibits, shall not be deemed to have been prepared by the Agency or the Developer, but
by all equally.
11.06. Venue; Submission to Jurisdiction.
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(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 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 befinreen it and the Agency arising out of or relating to this Agreement and such
service shall be made as provided by the laws of the State of Florida for service upon a
non-resident; provided, however, that at the time of service on the Florida Secretary of State, a
copy of such service shall be delivered to the Developer at the address for notices as provided
in Section 11.03.
11.07. Aqreement Not a Chapter 86-191, Laws of Florida, Development Aqreement.
The Developer and the Agency acknowledge, agree and represent that this Agreement,
including, without limitation, any of the Exhibits, is not a development agreement as described in
Sections 19-31, Chapter 86-191, Laws of Florida, codified as Sections 163.3220-163.3243,
Florida Statutes.
11.08. Estoqael Certificates. The Developer and the Agency shall at any time and from
time to time, upon not less than ten (10) days prior notice by another party hereto, execute,
acknowledge and deliver to the other parties a statement in recordable form certifying that this
Agreement has not been modified and is in full force and effect (or if there have been
modifications that the said Agreement as modified is in full force and effect and setting forth a
notation of such modifications), and that to the knowledge of such party, neither it nor any other
party is then in default hereof (or if another party is then in default hereof, stating the nature and
details of such default), it being intended that any such statement delivered pursuant to this
Section 11.08 may be relied upon by any prospective purchaser, mortgagee, successor,
assignee of any mortgage or assignee of the respective interest in the Project, if any, of any
party made in accordance with the provisions of this Agreement.
11.09. Complete Aqreement; Amendments.
(a) This Agreement, and all the terms and provisions contained herein, including
without limitation the Exhibits hereto, constitute the full and complete agreement between the
parties hereto to the date hereof, and supersedes and controls over any and all prior
agreements, understandings, representations, correspondence and statements whether written
or oral, including the RFP and the Proposal.
23
(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.
11.10. Captions. The article and section headings and captions of this Agreement and
the table of contents preceding this Agreement are for convenience and reference only and in
no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any
way affect this Agreement or construe any article, section, subsection, paragraph or provision
hereof.
11.11. Holidavs. It is hereby agreed and declared that whenever a notice or
performance under the terms of this Agreement is to be made or given on a Saturday or Sunday
or on a legal holiday observed in the City, it shall be postponed to the next following business
day.
11.12. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential
part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not
physically attached hereto shall be treated as if they are part of this Agreement.
11.13. No Brokers. The Agency and the Developer hereby represent, agree and
acknowledge that no real estate broker or other person is entitled to claim or to be paid a
commission as a result of the execution and delivery of this Agreement, including any of the
Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of
any or all of the Site.
11.14. Not an AQent. During the term of this Agreement, the Developer hereunder shall
not be an agent of the City or the Agency, with respect to any and all services to be performed
by the Developer (and any of its agents, assigns, or successors) with respect to the Project, and
the Agency is not an agent of the Developer (and any of its agents, assigns, or successors).
11.15. Memorandum of Development Aqreement. The Agency and the Developer
agree to execute, in recordable form, on the Effective Date, the sho�t form "Memorandum of
Agreement for Development," the form of which is attached hereto as Exhibit D, and agree,
authorize and hereby direct such Memorandum to be recorded in the public records of Pinellas
County, Florida, as soon as possible after execution thereof. The Agency shall pay the cost of
such recording.
11.16. Public Purpose. The parties acknowledge and agree that this Agreement
satisfies, fulfills and is pursuant to and for a public purpose and municipal purpose and is in the
public interest, and is a proper exercise of the Agency's power and authority under the Act.
11.17. No General Obliqation. In no event shall any obligation of the Agency under this
Agreement be or constitute a general obligation or indebtedness of the City or the Agency, a
pledge of the ad valorem taxing power of the City or the Agency or a general obligation or
indebtedness of the City or the Agency within the meaning of the Constitution of the State of
Florida or any other applicable laws, but shall be payable solely from legally available revenues
and funds. Neither the Developer nor any other party under or beneficiary of this Agreement
shall ever have the right to compel the exercise of the ad valorem taxing power of the City, the
24
Agency or any other governmental entity or taxation in any form on any real or personal
property to pay the City's or the Agency's obligations or undertakings hereunder.
11.18. Technical Amendments. In the event that due to minor inaccuracies contained
herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to
changes resulting from technical matters arising during the term of this Agreement, the parties
agree that amendments to this Agreement required due to such inaccuracies, unforeseen
events or circumstances which do not change the substance of this Agreement may be made
and incorporated herein. The Chairman of the Agency is authorized to approve such technical
amendments on behalf of the Agency, respectively, and is authorized to execute any required
instruments, to make and incorporate such amendment to this Agreement or any Exhibit
attached hereto or any other agreement contemplated hereby.
11.19. Term; Expiration; Certificate.
(a) If not earlier terminated as provided in Section 9.05, the term of this Agreement
shall expire and this Agreement shall no longer be of any force and effect (except for those
matters which specifically survive such expiration) on the tenth (10th) anniversary of the
Effective Date.
(b) Upon completion of the term of this Agreement, all parties hereto shall execute
the Agreement Expiration Cert�cate. The Agreement Expiration Certificate shall constitute (and
it shall be so provided in the certificate) a conclusive determination of satisfactory completion of
all obligations hereunder and the expiration of this Agreement.
(c) The Agreement Expiration Certrficate shall be in such form as will enable it to be
recorded in the public records of Pinellas County, Florida. Following execution by all of the
parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the
Developer in the public records of Pinellas County, Florida, and the Developer shall pay the cost
of such recording.
11.20. Effective Date. Following execution of this Agreement (and such of the Exhibits
as are contemplated to be executed simultaneously with this Agreement) by the authorized
officers of the Agency and by authorized representatives of the Developer following approval
hereof by the Agency and the Developer, this Agreement (and any executed Exhibits) shall be
in full force and effect in accordance with its teRns and upon the recording of the Memorandum
of Development Agreement as contemplated by Section 11.15 hereof.
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of this a�-f`�``day of , 200��'J
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
,
By: - _�� .
nk V. Hibbard
Chairperson
25
Approved as to form:
Pamela K. Akin
City Attorney
Witnesses:
Witnesses:
��-�
Witnesses:
/ , n ,/ ��
, I' - .�
Attest:
. .,.; ,,��,. g�, �
Cyn ia E. Goudeau � �, J�, �� ,��
City lerk A� ��.. .�
_ .__ - s� �\.`,,
_ ��
CLEARWATER CENTRE, L.L.C., '�� �������o�
a Flonda limited liability company /P F`o�
By. �
Sebastian Dorner, its Executive Mem er
� �By:
liz th Dorner
�
By:
� `
�. �
Guy M. nneville, its Managing Member
ATTEST:
�
� �
Secretary
(SEAL) ��
I..
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ��� day of
�E�t�l � , 200 �, by Sebastian Domer and Guy M. Bonneville, Executive Member and
Managing Member, respectively of Clearwater Centre, L.L.C., a Florida limited liability company,
on behalf of such limited liability company. They are personally known to me or have produced
a valid driver's license as identification.
(SEAL)
;1�Y o �.,, I I I��..
:� , No�► PuOie - 8hb d f1oM1�
�• • co��c�o�.�►�e,
c�.�oa r ao samt
eo�ew y w�e� ,�,,,
27
/��
fC�; �o cJR�� s K,�
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
LIST OF EXHIBITS
-- Legal Description
-- Site Plan
-- Performance Mortgage
-- Memorandum of Agreement for Development
-- Agreement Expiration Certificate
— Agreement Termination Certificate
— Utility Relocation Plan
h:\data�aty�hsc\clearwatercentre\developmentagnt.d20'06.doc
29
DEVELOPMENT AGREEMENT
EXHIBIT A
LEGAL DESCRIPTION —1100 CLEVELAND STREET
Lots 1 thru 14 uiclusive, Lot 15, less the East 23.0 feet thereof, all in Block "A", BA5SEUENA
SUBDIVISION as recorded in Plat Book 6, Page 26, of the public records of Pinellas County,
Florida. LESS the West 10.0 feet of said Lot 1, deeded to the City of Clearwater for right-of-
way purposes.
Lots 1, 2, 10 and that part of Lots 3 and 4 which lie West of a Southerly extension of the
Westerly line of the Easterly 23.0 feet of Lot 15, Block "A", (of BASSEDENA SUBDIVISION
as recorded in Plat Book 6, Page 26, public records of Pinellas County, Florida), LESS the East
23.0 feet of said Lot 4 thereof, all in H. A. KILGORE'S SUBDNISION as recorded in Plat
Book 3, Page 58, public records of Pinellas County, Florida.
Vacated portion of NE Cleveland Street (66.0 feet width) described as follows: That portion
lying between Blocks "A" and "B" of BASSEDENA SUBDIVISION as recorded in Plat Book 6,
Page 26, public records of Pinellas County, Florida, being more particularly described as
follows: From the most Easterly corner of Lot 25, of said Block "B", BASSEDENA
SUBDNISION, said corner being on the Northwesterly right-of-way line of NE Cleveland
Street, run thence South 58°27'00" West, along said Northwesterly rigl�t-of-way line, 50.0 feet;
thence continue along said right-of-way line, South 51 °00'30" West, 41.58 feet to the Point of
Beginning; thence run South 84° 10'09" East, 99.84 feet to a point on the Southeasterly right-of-
way line of said NE Cleveland Street; thence run South 58°27'00" West, along said
Southeasterly right-of-way line, 33.8i feet; thence continue, along said Southeasterly right-of-
way line, South 51°00'30" West, 310.43 feet to a point, said point being on the Southerly
extension of a line lying 10.0 feet East of the East right-of-way line of Greenwood Avenue as
shown adjacent to Block "B" of said BASSEDENA SUBDIVISION; thence run North
00°12'00" West, along a line 10.0 feet East of a parallel to the Southerly extension of the East
right-of-way line of Greenwood Avenue as shown on said Block "B", 84.68 feet to the
Northwesterly right-of-way line of NE Cleveland Street; thence run North 51 °00' 30" East, along
said right-of-way line, 220.09 feet to the Point of Beginning.
AND
Lots 9 thru 25 inclusive and that part of Lot 50, described as follows: Begin at the most
Southerly comer of said Lot 50 for the Point of Beginning; thence run North, along the West line
of said Lot 50, to the Northeast corner of said Lot 9; thence East along the Easterly eartension of
the North line of said Lot 9 to the Northerly line of said Lot 24; thence Southwesterly, along the
Northerly line of said Lot 24, to the Point of Beginning, all in Block "B", BASSEDENA
SUBDNISION, as recorded in Plat Book 6, Page 26, public records of Pinellas County, Florida,
LESS the following described tract: Begin at the Northwest comer of said Lot 11 for the Point
of Begi.nning; thence run South 42°19'40" East, 14.91 feet; thence South 84°10'09" East, 248.03
feet to the most Easterly comer of said Lot 25, said corner being on the Northwesterly right-of-
DEVELOPMENT AGREEMENT
E�IIIIBIT A (cont'd.)
way line of NE Cleveland Street; thence South 58°27'00" West, along said Northwesterly right-
of-way line, 50.0 feet; thence contrnue along said right-of-way line, South 51 °00'30" West,
41.58 feet; thence North 84°10'09" West, 152.60 feet; thence South 47°48'S6r West, 26.76 feet
to a point 10.0 feet East of the East right-of-way line of Greenwood Avenue; thence South
00°12'00" East, along a line of 10.0 feet East of the parallel to the East line of Greenwood
Avenue, 136.01 feet to the Northwesterly right-of-way line of NE Cleveland Street; thence South
51 °00'30" West, along the Northwesterly right-of-way of NE Cleveland Street, 12.83 feet to the
East right-of-way line of Greenwood Avenue, 235.10 feet to the Point of Beginning. (For right-
of-way purposes for realignment of NE Cleveland Street and for widening of Greenwood
Avenue.)
DEVELOPMENT AGREEMENT
EXHIBIT B
SITE PLAN -1100 CLEVELAND STREET
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THESE DOCUMENTS ARE INSTRUMENTS
OF PROFESSIONAL SERVICE AND MAY
NOT BE COPIED OR USED iN ANY FASHION
EXCEPT WITH TNE RERMISSION OF THE
ARCHITECT AND MAY ONLY BE USED
FOR Tt1E REFERENCED PROJECT IN
ACCORDANCE WITH FEDERAL COPYRIC,HT
LAW.
DATE: SEPTEMBER 29, 2006
Qc Copyright 2006
SCALE: AS SHOWN .
TOWNHOME LEVEL 3
SITE PL�N -
SHEET NUMBER:
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PREPARED BY AND RETURN TO:
HARRY S. CLINE, Esquire
Maciarlane Ferguson & McMullen
625 Court Street/Suite 200
Post Office Boa 1669
Clearwater, Florida 33757
NO DOCUMENTARY STAMP TAXES ARE DUE ON THIS MORTGAGE BECAUSE IT
SECURES TFIE PERFORMANCE OF AN OBLIGATION, NOT THE PAYMENT OF
MONEY.
PERFORMANCE MORTGAGE
THIS PERFORMANCE MORTGAGE, made and entered into this day of
, 2006, between SEBASTIAN DORNER and ELIZABETH DORNER, his wife, ,
hereinafter referred to as "Mortgagor", whose mailing address is: 1180 Gulf Boulevard, Clearwater,
FL 33767, and COMMUIYITY REDEVELOPMENT AGENCY OF THE CITY OF
CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida created
pursuant to Part III, Chapter 163, Florida Statutes , hereinafter referred to as "Mortgagee", whose
mailing address is: 112 S. Osceola Avenue, Cleatwater, FL 33756,
WITNESSETH:
WHEREAS, Mortgagor and Mortgagee entered into that certain Development Agreement
dated , 2006, [the "Agreement"], a memorandum of which agreement is to be
recorded simultaneously herewith, wherein it is agreed that the Mortgagor has certain development
obligations as to that certain lend situate in Pinelles County, Florida, as described in Exhibit "A"
attached hereto; and
WHEREAS, it is the intention by virtue of this Mortgage to secure the full performance by
the Mortgagor, in accordance with the said Agreement and proper application of all credits and fees
applicable or payable under said Agreement in the amou�t of $1,040,000.00; it is
NOW, THEREFORE, to secure the performance and observance by Mortgagor of all
covenants and conditions in the Agrceement and in this Mortgage and in all other instruments
securing the Agreement, and in order to charge the properties, interest and rights hereinafter
described with such payment, pedormance and observance and for and in consideration of the sum
of One Dollar ($1.00) paid by Mortgagee to Mortgagor this date, and for other valuable considera-
tions as provided in the Agreement, the receipt of which is acknowledged, Mortgagor dces hereby
grant, bargain, sell, alien, remise, release, convey, assi�, transfer, mortgage, hypoihecate, pledge,
deliver, set over, wamdnt and confirm unto Mortgagee, its successors and assigns forever, the
property described in Exhibit "B" attached hereto and made a pazt hereof by reference and situated in
Pinellas County, Florida.
TOGETHER with all buildings, structures and improvements of every nature whatscever
now or hereafter situated on the land, and all fixtures, machinery, appliances, equipment, fumiture,
and personal property of every nature whatsoever now or hereafter owned by Mortgagor and located
in or on, or attached to, or used or intended to be used in connection with or without the operation
of, the land, buildings, structw�es or other improvements, and owned by Mortgagor, including all
extensions, additions, improvements, betterments, renewals, substitutions, and replacements to any
of the foregoing and all of the right, tide and interest of mortgagor in and to any such personal
property or fixtures.
TOGETHER with all easements, rights of way, streets, ways, alleys, passages, sewer rights,
waters, water courses, water rights and powers, and all tenements, hereditaments and appurtenances
whatsoever, in any way belonging, relating or appertaining to any of the pmperty hereinabove
described, or which hereafter shall in any way belong, relate or be appurtenant thereto, whether now
owned or hereafter acquired by Mortgagor, and the reversion and reversions, remainder and
remainders, and all the estate, right, title, interest, property, possession, claim and demand
whatsoever, at law as well as in equity, of Mortgagor of, in and to the same.
TOGETHER with all rents, royalties, issues, profits, revenue, income and other benefits from
the property described herein, to be applied against the indebtedness and other sums secumd hereby,
provided, however, that permission is hereby �ven to Mortgagor so long as no default has occurred
hereunder, to collect, receive, take, use and enjoy such rents, royalties, issues, profits, revenue,
income and oiher benefits as they become due and payable, but not in advance thereof. The forego-
ing assignment shall be fully operative without any further action on the part of either party and
specifically Mortgagee shall be entitled, at its option, upon the occurrence of a default hereunder, to
all rents, myalties, issues, profits, revenue, income, and other benefits from the pmperty whether or
not Mortgagee takes possession of the pmperty. Upon any such defaWt hereunder, the permission
hereby given to Mortgagor to collect such rents, myalties, issues, pmfits, revenue, income and other
benefits from the property shall terminate and such permission shall not be reinstated upon a cure of
the default without Mortgagee's specific consent. Neither the exercise of any rights under this
paragraph by Mortgagee nor the application of any such rents, royalties, issues, profits, revenue,
income or other benefits to the indebtedness and other sums secured hereby, shall cure or waive any
default or notice of default hereunder or invalidate any act done pursuant hereto or to any such
notice, but shall be cumulative of all other rights and remedies.
TOGETHER with a security interest in all articles of personal property and all materials
delivered to the pmperty described herein for use in any construction being conducted thereon, and
owned by Mortgagor, and all contract rights, general intangibles, actions and rights in action,
including all rights to insurance proceeds, and all proceeds, pmducts, replacements, additions,
substitutions, renewals and accessions of any of the foregoing. This Mortgage is a self-operative
security agreement with respect to such property, but Mortgagor agrees to execute and deliver on
demand such other security ageements, financing statements and other instruments as Mortgagee
may request in order to perfect its security interest or to impose the lien hereof more specifically
upon any of such property. Mortgagee shall have all the rights and remedies in addition to those
specified herein of a secured pariy under the Uniform Commercial Code of Florida.
ALL OF WHICH real and personal pmperiy, rights and intangibles are herein referred to as
the "Mortgaged Property".
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto Mortgagee, its
successors and assigns, to its own property use and benefit forever, subject, however, to the terms
and conditions herein.
PROVIDED ALWAYS, that if all obligations are timely performed and the warranties and
conditions of this Mortgage are complied with, this Mortgage shall be null and void, and so long as
MoRgagor is not in default under the Agreement, it shall be entitled to the full benefit of its contract
rights under said Agreement.
Mortgagor covenants and agrees with Mortgagee as follows:
ARTICLE ONE
COVENANTS OF MORTGAGOR
1.01 Performance of A¢rcement, Morteaee. Mortgagor shall pedorm, observe and comply
with all provisions hereof, of the Agreement and of every other instrument securing the Agreement.
1.02 Warrantv of Title. Mortgagor covenants and warrants that it is seized of an
indefeasible estate in fee simple in the real property hereby mortgaged, has good and absolute tide to
all existing personal property hereby mortgaged or made subject to the security interest hereby
created and has good right, full power and lawful authority to convey, mortgage and encumber the
same as provided herein; that Mortgagee may at all times peaceably and quiedy enter upon, hold,
occupy and enjoy the real property hereby mortgaged and every part thereof; that the real property
and all existing personal property hereby mortgaged or made subject to the security interest hereby
created is free and clear of all liens, security interests, charges and encumbrances whatsoever, except
for easements of record and the lien for pmperty taxes not yet due and payable. Mortgagor shall and
will make such further assurances to perfect Mortgagee's fee simple title to the real pmperty hereby
mortgaged, and the title to the personal property hereby mortgaged or made subject to the security
interest hereby created as may reasonably be required. Except as herein pmvided, Mortgagor fiilly
warrants the tide to the real property and all existing personal property hereby mortgaged or made
subj ect to the security interest hereby created, and every part hereof, and will forever defend the same
against the claims of all persons whomscever.
1.03 Taxes and Liens.
A. Mortgagor shall pay promptly, when and as due, and shall promptly exhibit to Mortgagee
receipts for the payment of, all ta�ces, assessments, rates, dues, charges, fees, levies, fines,
impositions, liens, liabilities, obligations and encumbrances of every kind whatsoever now or
hereafter imposed, levied or assessed upon or against the Mortgaged Property or any part thereof, and
any charge which, if unpaid, would become a lien or charge upon the Mortgaged Property prior to or
equal to the lien of this mortgage, before they become delinquent and before any interest attaches or
any penalty is incurred.
B. Mortgagor shall not permit or suffer any mechanics', laborers', materialmen's, statutory
or other lien which might or could be prior or equal to the lien of this Mortgage to be created or to
remain a lien upon any of the Mortgaged Properiy.
1.04 Insurance.
A. Mortgagor shall at its sole expense obtain for, deliver to and maintain for the benefit of
Mortgagee, during tl�e life of this Mortgage, insurance policies in such amounts as Mortgagee may
require, insuring the Mortgaged Property against fire, flood, extended coverage, and such other
insurable hazards, casualties, contingencies and public liability insurance, as Mortgagee may require,
and shall pay promptly, when due, any premiums on such insurance policies and on any renewals
thereof. The form of such policies and the companies issuing them shall be acceptable to Mortgagee.
All such policies and renewals thereof shall be held by Mortgagee and shall contain a non-
contributory mortgagee endorsement making losses payable to Mottgagee. T6e coverage under such
policies shall be limited to the improvements now or hereafter located on the Mortgaged Property.
At least fifteen ( l 5) days prior to the expiration date of all such policies, renewals thereof satisfactory
to Mortgagee shall be delivered to Mortgagee, Mortgagor shall deliver to Mortgagee receipts
evidencing the payment of all premiums on such insurance policies and renewals. Delivery of the
insurance policies and renewals thereof shall consritute an assigtunent to Mortgagee, as further
security, of all unearned premiums. In the event of loss, Mortgagor will give immediate written
notice to Mortgagee and Mortgagee may make proof of loss if not made pmmptly by Mortgagor. In
the event of the foreclosure of this Mortgage or any other transfer of title to the Mortgaged Property
in extinguishment of the indebtedness and other sums secured hereby, all right, tide and interest of
Mortgagor in and to all insurance policies and renewals thereof then in force shall pass to the
purchaser or grantee.
B. Mortgagor hereby assigns to Mortgagee all proceeds from any insurance policies, and
Mortgagee is hereby authorized and empowered, at its option, to adjust or compmmise any loss
under any insurance policies on the Mortgaged Property, and to collect and receive the proceeds from
any such policy or policies. Each insurance company is hereby authorized and directed to make
payment for all such losses directly to Mortgagee alone, and not to Mortgagor and Mortgagee jointly.
After deducting from such insurance proceeds any expenses incurred by Mortgagee in the collection
or handling of such funds, Mortgagee may apply the net proceeds, at its option, either toward
restoring the improvements or as a credit on any portion of the indebtedness and other sums secured
hereby, whether then matured or to mature in the future, or at the option of Mortgagee such sums
either wholly or in part may be paid over to the Mortgagor to be used to repair such improvements or
to build new improvements in their place or for any other purpose or object satisfactory to
Mortgagee, without affecting the lien of this Mortgage for the fWl amount secured hereby before
such payment took place. Mortgagee shall not be responsible for any failure to collect any insurance
proceeds due under the terms of any policy regardless of the cause of such failure.
C. Mortgagor shall at its sole expense obtain for, deliver to and maintain for the benefit of
Mortgagee, during the life of this Mortgage, liabiliry insurance policies relating to the Mortgaged
Property, in such amounts, with such companies and in such form as may be required by Mortgagee.
Mortgagee may require such policies to contain an endorsement, in form satisfactory to Mortgagee,
naming Mortgagee as an additional insured thereunder. Mortgagor shall pay promptly, when due,
any premiums on such insurance policies and renewals thereof.
D. In the event of a foreclosure of this Mortgage, the purchaser of the Mortgaged Property
shall succeed to all the rights of Mortgagor, including any right to unearned premiums, in and to all
policies of insurance assigned and delivered to Mortgagee, with respect to all property herein
encumbered.
E. Mortgagee may, at its option, direct the payment ofthe insurance proceeds into an escrow
account at a banlc, title insurance company or law fum desi�nated by Mortgagee to be held for the
benefit of the Mortgagor and Mortgagee during the re-building of the Mortgaged Pmperty and shall
be released by Mortgagee upon the appmval of the inspecting architect or engineer that the
Mortgaged Property has been restored to the condition it was prior to the loss. In the event additional
financing is necessary to meet the requirements of any general contract which might be used to effect
such reconstruction, then the Mortgagor shall place said additional funds into the escmw account.
1.05 INTENTIONALLY DELETED.
1.06 Condemnation. If all or a material part (which determination shall be made by
Mortgagee in its sole and absolute discretion) of the Mortgaged Property shall be damaged or taken
through condemnation (which term when used herein shall include any damage or taking by any
govemmental authority or any other suthority authorized by the laws of the State of Florida or the
United States of America to so damage or take, and any t�ansfer by private sale in lieu thereo�, either
temporarily or permanently, at the option of Mortgagee, Mortgagor shall be deemed in default
hereunder. Mortgagee shall be entitled to all compensation awards, damages, claims, rights of
action and proceeds of, or on account of, any damage or taking through condemnation and is hereby
authorized, at its option, to commence, appeaz in and prosecute, in its own or Mortgagor's name, any
action or proceeding relating to any condemnation, and to settle or compromise any claim in
connection therewith. All such compensation awards, damages, claims, rights of action and
proceeds, and any other payments or relief, and the right thereto, are hereby assigned by Mortgagor
to Mortgagee, which, after deducting therefrom all its expenses, including, without limitation,
attomeys' fees, may release any monies so received by it without at%cting the lien of this Mortgage
or may apply the same, in such manner as Mortgagee shall determine, to the reduction of the sums
secured hereby and to any prepayment chazge provided in the Agreement, this Mortgage or other
instniment securing the Agreement. Any balance of such monies then remaining shall be paid to
Mortgagor. Mortgagor agrees to execute such further assignments of any compensation, awards,
damages, claims, rights of action and proceeds as Mortgagee may require.
1.07 Care of Proper�t .
A. Mortgagor shall preserve and maintain the Mortgaged Property in good condition and
repair. Except as contemplated and permitted elsewhere in this mortgage, Mortgagor shall not
remove, demolish, alter or change the use of any building, structure or other improvement presently
or hereafter on the Mortgaged Property without the prior written consent of Mortgagee, nor permit,
commit or suffer any waste, impairment or deterioration of the Mortgaged Property or of any part
thereof, and will not take any action which will increase the risk of fire or other hazard to the
Mortgaged Pmperiy or to any part thereof.
B. Mortgagee may enter upon and inspect the Mortgaged Property at any reasonable time
during the life of this Mortgage.
C. Mortgagor will promptly comply with all present and future laws, ordinances, rules and
regulations of any govemmental authority affecting the Mortgaged Property or any part thereof.
1.08 Transfer of Property Title. If all or any part of the mortgaged property or any interest
therein is sold or transferred by Mortgagor without Mortgagee's prior written consent, excluding (a)
the creation of a lien or encumbraoce subordinate to this mortgage, (b) the creation of a purchase
money security interest for appliances, fixtures or equipment, (c) a transfer by devise, descent or by
operation of law upon the death of a joint tenant, or (d) the grant of any leasehold interest of three
years or less not containing an option to purchase, Mortgagee may, at Mortgagee's option, declare a
default hereunder. Mortgagee shall have waived such option to accelerate if, prior to the sale or
transfer, Mortgagee and the person to whom the mortgaged property is to be sold or hansferred reach
agreement in writing that the credit of such person is satisfactory to Mortgagee and that the interest
payment on the sums secured by this mortgage shall be at such rate as Mortgagee shall request.
1.09 Further Assurances. At any time and from time to time, upon Mortgagee's request,
Mortgagor shall make, execute and deliver or cause to be made, executed and delivered to Mortgagee
any and all such further mortgages, instruments of further assurance, certificates, updated financial
statements and secure financial information and any other documents as Mortgagee may consider
necessary or desirable in order to effectuate, complete or perfect, or to continue and preserve the
obligations of Mortgagor under the Agreement and this Mortgage, and the lien of this Mortgage as a
valid and existing lien upon all of the Mortgaged Property, whether now owned or hereafter acquired
by Mortgagor. Upon any failure by Mortgagor to do so, Mortgagee may make, execute, record, file,
re-record or refile any and all such mortgages, instruments, certificates and documents for and in the
name of Mortgagor, and Mortgagor hereby irrevocably appoints Mortgagee the agent and attomey-
in-fact of Mortgagor to do so. Mortgagor shall promptly deliver to Mortgagee receipts showing
payment in full of all of the above items which are not paid from the escrow account, if any, herein
established.
1.10 INTENTIONALLY DELETED
1.1 l After Acquired Pro ,_yrt . The lien of tivs Mortgage will automatically attach, without
further act, to all after acquired property located in or on, or attached to, or used or intended to be
used in connection with or with the operation of, the mortgaged Pmperty or any part thereof.
1.12 Expenses. Mortgagor shall pay or reimburse Mortgagee for all costs, charges and
expenses, including reasonable attomeys' fees and disbursements and costs incwred or paid by Mort-
gagee in any threatened, pending or completed action, proceeding or dispute in which Mortgagee is
or might be made a party or appears as a party plaintiff or party defendant and which affects or might
affect the Agreement, this Mortgage or any other instrument securing the Agreement, or the
Mortgaged Property or any part thereof, or the interests of Mortgagor or Mortgagee therein, including
but not limited to the foreclosure of this Mortgage, condemnation involving all or part of the
Mortgaged Property or any action to protect the security hereof, including all appellate proceedings
in connection with or arising out of any of the foregoing. All costs, charges and expenses so incurred
or paid by Mortgagee shall become due and payable immediately, whether or not there be notice,
demand, attempt to collect or stit pending. The amounts so incurred or paid by Mortgagee, together
with interest thereon at the Default Rate as hereinafter defined from the date incurred until paid by
Mortgagor, shall be secured by the lien of this mortgage.
1.13 Pedormance of Defaults. If Mortgagor defaults in the payment of any taac,
assessment, encumbrance or other imposition, in its obligation to furnish insurance hereunder or in
the performance or observation of any other covenant, condition or term in this Mortgage or in any
other instrument securing the Agreement, Mortgagee may at its option perform, correct or observe
the same, and all payments made (whether such payments are regular or accelerated payments) and
costs and expenses incurred or paid by Mortgagee in connection therewith shall become due and
payable immediately, whether or not there be notice or demand. The amounts so incurred or paid by
Mortgagee, together with interest thereon at the Default Rate as hereinafter defined from the date
incurred until paid by Mortgagor, shall be secured by the lien of this Mortgage. Nothing contained
herein shall be construed as requiring Mortgagee to advance or expend monies for any pwpose
mentioned in this paragraph, or for any other putpose. Mortgagee is hereby empowered to enter and
to authorize others to enter upon the Mortgaged Property or any parc thereof for the purpose of
performing or observing any such defaulted covenant, condition or term, without thereby becoming
liable to Mortgagor or any person in possession holding under Mortgagor.
I.14 Estovnel Affidavits. Either Mortgagor or Mortgagee within ten (10) days after written
request from the other shall fumish a written statement, duly acknowledged, setting forth the ongoing
or urunet obligations under the Agreement, and any other unpaid sums secured hereby, and whether
or not any offsets or defenses exist.
ARTICLE TWO
DEFAULTS
2.01 Event of Default. The term default, wherever used in this Mortgage, shall mean any
one or more of the following events:
A. Breach of or failure by Mortgagor to duly keep, perform and observe any other covenant,
condition or agreement in the Agreement, tivs Mortgage, any other instrument securing the
Agreement or any other instrument collateral to the Agreement or executed in connection with the
sums secured hereby.
B. If the Mortgagor at any time shall: (i) file a voluntary petition in bankruptcy, or (ii) be
adjudicated as bankrupt or insolvent, or (iii) seek or consent to or acquiesce in the appointrnent of a
trustee, receiver, master or liquidator of all or any substantial part of the Mortgaged Pmperty or of
any or all of the rents, revenues, issues, earnings, profits or income thereof; or (iv) make any general
assignment for the benefit of creditors; or make an admission in writing of its inability to pay its
debts generally as they become due; or (v) if a court of competent jurisdiction enters an order,
judgment or decree appmving a petition filed against Mortgagor seeking any amangement, composi-
tion, readjustment, liquidation, or similar relief under any present or future federal, state or other
statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors.
C. Material breach of any warranty or material untruth of any representation of Mortgagor
contained in the Agreement, this Mortgage or any other instrument securing the Agreement.
D. Should foreclosure proceedings (whether judicial or otherwise) be instituted on any
mortgage or any junior lien of any kind secured by any portion of the Mortgaged Property, and not be
terminated within forty-five (45) days.
E. Should Mortgagor default in any other loan from Mortgagee to Mortgagor.
F. Except for sale of portions of the Mortgaged Property made in the ordinary course of
business for which a partial release or consent is obtained, should Mortgagor encumber, sell or
otherwise dispose of the Mortgaged Property, or any part or interest thereof, without the consent in
writing of the Mortgagee.
2.02 Mort�agee's Power of Enforcement. If an event of default shall have occurred,
Mortgagee may, either with or without entry or taking possession as hereinabove provided or other-
wise, proceed by suit or suits at law or in equity or by any other appropriate proceeding or remedy;
(a) to enforce the Agreement or the performance of any term hereof or any other right; (b) to
foreclose this Mortgage and to sell, as an entirery or in separate lots or parcels, the Mortgaged
Property, under the judgment or decree of a court or courts of competent jurisdiction; or (c) to pursue
any other remedy available to it. Mortgagee may take action either by such proceedings or by the
exercise of its powers with respect to entry or taking possession, or both, as the Mortgagee may
determine.
2.03 Receiver. If an event of default shall have occurred, Mortgagee, to the extent
permitted by law and without regazd to the value or occupancy of the security, shall be entitled as a
matter of right if it so elects to the appointment of a receiver to enter upon and take possession of the
Mortgaged Property and to collect all rents, revenues, issues, income, products and profits thereof
and apply the same as the court may direct. The receiver shall have all rights and powers permitted
under the laws of the State of Florida and such other powers as the court making such appointment
shall confer. The expenses, including receiver's fees, attomey's fees, costs and agent's
compensation, incurred pursuant to the powers herein contained shall be secured by this Mortgage.
The right to enter and take possession of and to manage and operate the Mortgaged Property, and to
col lect the rents, issues and profits thereof, whether by a receiver or otherwise, shall be cumulative to
any other right or remedy hereunder or afforded by law, and may be exercised concurrently therewith
or independently thereof. Mortgagee shall be liable to account only for such rents, issues and profits
as are actually received by Mortgagee.
2.04 Deficiencv. In case of a foreclosure sale of all or ariy part of the Mortgaged Property
and of the application of the proceeds of sale Mortgagee shall be entitled to enforce payment of and
to receive any and all amounts due as a result of Mortgagor's failure to perform and to recover
judgment for any portion thereof remaining unpaid, with interest. Mortgagor hereby agees, to the
extent permitted by law, that no recovery of any such judgment by Mortgagee and no attachment or
levy of any execution upon any of the Mortgaged Property or and othet property shall in any way
affect the lien of this Mortgage upon the Mortgaged Property or any part thereof, or any lien, rights,
powers or remedies of Mortgagee hereunder, but such lien, rights, powers and remedies shall
continue unimpaired as before.
2.05 Delav or Omission No Waiver. No delay or omission of Mortgagee or any holder or
the Agreement to exercise any right, power or remedy accruing upon any event of default shall
exhaust any such event of default or to constitute acquiescence therein. Every right, power and
remedy given to Mortgagee may be exercised from time to time and as often as may be deemed
expedient by Mortgagee.
2.06 No Waiver of One Default to Affect Another. No waiver of any event of default
hereunder shall extend to or affect any subsequent or any other event of default then existing, or
impair any rights, powers or remedies consequent thereon. If Mortgagee (a) grants forbearance or an
extension of time for performance secured hereby; (b) takes other or additional security for the
performance thereof; (c) waives or does not exercise any right granted in the Agreement, this
Mortgage or any other instrument securing the Agreement; (d) releases any part of the Mortgaged
Property from the lien of this Mortgage or ariy other instrument securing the Ageement; (e) consents
to the filing of any declaration of condominium, map, plat or replat of the land; or (� makes or
consents to any agreement changing the terms of this Mortgage or subordinating the lien or any
charge hereof, no such act or omission shall release, discharge, modify, change or affect the original
liability under the Agreement, this Mortgage, or otherwise of Mortgagor, or any subsequent
purchaser of the Mortgaged Property or any part thereof or any maker, co-signer, endorser, surety or
guarantor. No such act or omission shall preclude Mortgagee from exercising any right, power or
privilege herein granted or intended to be granted in case of any event of default then existing or of
any subsequent event of default nor, except as otherwise expressly provided in an instrument or
instruments executed by Mortgagee, shall the lien of this Mortgage be altered thereby. In the event
of the sale or transfer by operation of law or otherwise of all or any part of the Mortgaged Property,
MoRgagee, without notice to any petson, firm or corporation, is hereby authorized and empowered to
deal with any such vendee or transferee with reference to the Mortgaged Property or the indebtedness
secured hereby, or with reference to any of the terms or conditions hereof, as fully and to the same
extent as it might deal with the original parties hereto and without in any way releasing or
discharging any of the liabilities or undertakings hereunder of the original Mortgagor.
2.07 Cumulative. No right, power or remedy conferred upon or reserved to Mortgagee by
the Agreement, this mortgage or any other instrument securing the Agreement is exclusive of any
other right, power or remedy, but each and every such right, power and remedy shall be cumulative
and concurrent and shall be in addition to any other right, power and remedy given hereunder or
under the Agreement or any other instrument securing the Agreement, or now or hereafter existing at
law, in equity or by statute.
2.08 Default Rate. Any advancements made by and expenses incurred by Mortgagee,
shall bear interest from the due date or the date of advancement or payment by Mortgagee at the
highest contract rate of interest permitted to be charged under the laws of the State of Florida, which
rate is herein referred to as the "Default Rate".
2.09 JURY WAIVER
NOW, SAOULD IT BECOME NECESSARY TO ENFORCE THE AGREEMENT
THROUGH AN ATTORNEY, ANY OF US, WHETHER MAKER, SURETY, OR
ENDORSER ON THIS AGREEIV�NT, HEREBY AGREES TO PAY ALL COSTS OF
COLLECTION, INCLUDING A REASONABLE ATTORNEYS' FEE, AND INCLUDING
ANY ATTORNEYS' FEES INCURRED BY ANY APPEAL. THE UNDERSIGNED
JOINTLY AND SEVERALLY DO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGNT EITHER MAY HAVE TO A TRIAL BY JURY IN
RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCI', COiJRSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRI7TE1�, OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR MORTGAGEE ACCEPTING THIS AGREEMENT.
ARTICLE THREE
SUBORDINATION
3.01 Subordination of Mortea�e Ri ts. Mortgagee dces hereby acknowledge that this
Performance Mortgage is subordinate to that certain mortgage given by Mortgagor to GREATER
CLEARWATER C�iAMBER OF COMMERCE, INC., a Florida non-pmfit corporation, in the face
amount of $710,000.00, as recorded in O.R. Book 15260, page 1410, public records of Pinellas
County, Florida, as to the property described as Parcel "A" herein, being the same property described
herein.
3.02 Subordination of Easement Rights. Provided that Mortgagor is not in default
hereunder, Mortgagee a�ees to subordinate the lien of this Mortgage to the rights of the holders of
any easement hereafter granted by Mortgagor which may reasonably be required to fumish to the
Mortgaged Property utilities such as, but not limited to, water, electricity, sanitary and storm sewers,
gas and telephone.
ARTICLE FOUR
HAZARDOUSSUBSTANCE
4.01 Mortgagor hereby represents that neither Mortgagor nor, to Mortgagor's knowledge,
any other person has ever used the mortgaged pmperty as a storage facility for any "Hazardous
Substance" other than gasoline or motor oil (to the extent same may be Hazardous Substances) used
in the ordinary course of Mortgagor's business.
Mortgagor hereby agrees to indemnify Mortgagee and hold Mortgagee harmless from and
against any and all losses, liabilities, induding strict liability, damages, injuries, expenses, including
reasonable attomeys' fees, costs of any settlement or jud�ent and claims of any and every kind
whatsoever paid, incurred or suffered by, or asserted against, Mortgagee by any person or entity or
govemmental agency for, with respect to, or as a direct or indirect result of, the presence on or under,
or the escape, seepage, leakage, spillage, discharge, emission, discharging or release from the
premises of any Hazardous Substance (including, without limitation, any losses, liabilities, including
strict liability, substances or standards of conduct concerning any Hazardous Substance), regazdless
of whether within the control of Mortgagee, so long as the act or omission in question occurs prior to
the sale of the premises and complete dispossession of Mortgagor thereunder.
For purposes of this instrument, "Hazardous Substances" shall mean and include those
elements or compounds which are contained in the list of hazardous substances adopted by the
United States Environmental Protection Agency (EPA) and the list of toxic pollutants designated by
Congress or the EPA or defined by any other Federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material as now or at any time
hereafter in effect.
If Mortgagor receives any notice of (i) the happening of any material event involving the
spill, release, leak, seepage, dischazge or cleanup of any Hazardous Substance on the premises or in
connection with Mortgagor's operations thereon or, (ii) any complaint, order, citation or material
notice with regazd to air emissions, water discharges, or any other environmental, health or safety
matter af�'ecting Mortgagor (an "Environmental Complaint") from any person or entity (including,
without limitation, the EPA), then Mortgagor shall immediately notify Mortgagee orally and in
writing of said notice.
Mortgagee shall have the right, but not the obligation, and without limitation of Mortgagee's
rights under this instrument, to enter onto the mortgaged property or to take such other actions as it
deems necessary or advisable to clean up, remove, resolve or minimize the impact of, or otherwise
deal with, any such Hazardous Substance or Environmental Complaint following receipt of any
notice from any person or entity (including, without limitation, the EPA) asserting the existence of
any Hazardous Substance or an Environmental Complaint pertaining to the mortgaged pmperry or
any part thereof which, if true, could result in an order, suit or other action against Mortgagor and/or
which, in the sole opinion of Mortgagee, could jeopardize its security under this instrument. All
reasonable costs and expenses incurred by Mortgagee in the exercise of any such rights shall be
secured by this instrument and shall be payable by Mortgagor upon demand.
Mortgagee shall have the right, in its reasonable discretion, to require Mortgagor to
periodically (but not more frequently than annually unless an Environmental Complaint is then out-
standing) perform (at Mortgagor's expense) an environmental audit and, if deemed necessary by
Mortgagee, an environmental risk assessment, each of which must be satisfactory to Mortgagee, of
the mortgaged property, hazardous waste management practices and/or hazardous waste disposal
sites used by Mortgagor. Said audit and/or risk assessment must be by an environmental consultant
satisfactory to Mortgagee. Should Mortgagor fail to perform said environmental audit or risk
assessment within thirty (30) days of the Mortgagee's written request, Mortgagee shall have the
right, but not the obligation, to retain an envimnmental consultant to perform said environmental
audit or risk assessment. All costs and expenses incurred by Mortgagee in the exercise of such rights
shall be secured by this instrument and shall be payable by Mortgagor upon demand or charged to
Mortgagor's loari balance at the discretion of Mortgagee.
Any breach of any wamanty, representation or agreement contained in this section shall be an
event of default hereunder and shall entide Mortgagee to exercise any and all remedies pmvided in
this inshvment, or otherwise permitted by law.
ARTICLE FNE
MISCELLANEOUS PROVISIONS
5.01 Successors and Assigns Included in Parties. Whenever one of the parties hereto is
named or referred to herein, the successors and assigns of such party shall be induded and all
covenants and agreements contained in this Mortgage, by or on behalf of Mortgagor or Mortgagee,
shall bind and inure to the benefit of theu respective successors and assigns, whether so expressed or
not.
5.02 Headin . The headings of the articles, sections, paragraphs and subdivision of this
Mortgage are for convenience of reference only, are not to be considered a part hereof, and shall not
limit or expand or otherwise affect any of the terms hereof.
5.03 Invalid Provisions to Affect no Others. In the event that any of the covenants,
agreements, terms or pmvisions contained in the Agreement, this Mortgage or any other instrument
securing the Agreement shall be invalid, illegal or unenforceable in any respect, the validity of the
remaining covenants, ageements, terms or provisions contained herein and in the Agreement and
any other instrument securing the Agreement shall be in no way af%cted, prejudiced or disturbed
thereby.
5.04 Chan�es. Neither this Mortgage nor any term hereof may be changed, waived,
discharged or terminated orally, or by any action or inaction, but only by an instnunent in writing
signed by the party against which enforcement of the change, waiver, dischazge or termination is
sought. Any agreement hereafter made by Mortgagor and Mortgagee relating to this Mortgage shall
be superior to We rights of the holder of any intervening lien or encumbrance.
5.05 Govemin�,Law. 7'his Mortgage is made by Mortgagor and accepted by Mortgagee
with reference to the laws of the State of Florida and shall be construed, interpreted, enforced and
govemed by and in accordance with such law.
5.06 Effect of Change in Law; Accelerated Date Due. In the event of the enactrnent after
this date of any law of Florida or the municipality in which the Mortgaged Pmperty is located
deducting from the value of the land for the purpose of taxation of any lien thereon, or imposing
upon Mortgagee the payment of the whole or any part of the ta�ces or assessments or charges or liens
herein required to be paid by Mortgagor, or changing in any way the laws relating to the taxation of
mortgages or debts secured by mortgages or the Mortgagor's interest in the property, or the ma�uier
of collection of taxes, so as to affect this Mortgage or the debt secured hereby or the holder thereof,
then, and in any such event, the Mortgagor upon demand by the Mortgagee shall pay such taxes or
assessments, or reimburse the Mortgagee therefor; provided, however, that if in the opinion of
counsel for the Mortgagee (a) it might be unlawful to require Mortgagor to make such payment or (b)
the making of such payment might result in the imposition of interest beyond We maximum amount
determined by prime rate, plus 100 basis points, as quoted in the Wall Street Journal, as of the
ef%ctive day of any default and shall accrue at that rate, from time to time, as of the date of default,
then and in such event the Mortgagee may elect, by notice in writing given to the Mortgagor, to
declare all of the indebtedness secured hereby to be and become due and payable sixty (60) days
from the giving of such Agreement.
5.07 Mort�a�or as Lessor. Mortgagor shall faithfWly perform the covenants of Mortgagor
as lessor under any present and future leases, affecting all or any portion of the Mortgaged Property,
and neither do nor neglect to do, nor permit to be done, anything which may cause the ternunation of
said leases, or any of them, or which may diminish or impair their value, or the rents provided for
therein, or the interest of Mortgagor or Mortgagee therein or thereunder.
5.08 A�vroval for LendinQ Purposes. All forms of lease, rental or use agreements (and
amendments thereto) for the Mortgaged Property, or any part thereof, shall be submitted to the
Mortgagee for appmval for lending purposes prior to becoming binding upon the Mortgagor, unless
this requirement is waived in writing by the Mortgagee.
5.09 Waiver of Homestead Exemption; Time of Essence. Each individual Mortgagor, for
himself and faznily, hereby waives and renounces a11 horoestead exemption rights provided for by the
Constitution and Laws of the United States and of the State of Florida in and to the Mortgaged
Property as against the collection of the secured indebtedness, or any part thereof; and Mortgagor
agrees that where, by the terms of the conveyance or the Agreement secured hereby, a day is named
or a time fixed for the payment of any sum of money or the performance of any agreement, the time
stated enters into the consideration and is of the essence of the whole contract.
10
5.10 Prior Liens. Mortgagor shall keep the Premises free from all other prior liens and,
upon demand of Mortgagee, pay and procure release of any such other lien which in any way may
impair the security of this Mortgage.
5.11 MortQa�or's Duty to Defend. Mortgagor will defend, at its own cost and expense, and
indemnify and hold Mortgagee harmless from, any action, proceeding or claim affecting the
Mortgaged Property, the Agreement or any other loan document Costs and expenses will include all
reasonable attomey's fees.
If Mortgagor neglects or refuses to act pursuant to this paragraph, Mortgagee, at its option
(whether electing to declare the entire secured indebtedness due and collectible or not, or to pursue
other remedies for an event of default), may pay for all reasonable attomey's fees, costs and expenses
incurred in any such action. All such payments, bearing interest thereon from the time of default as
determined by prime rate, plus 100 basis points, as quoted in the Wall Street Joumal, as of the
effective day of any default and shall accrue at that rate, from time to time, as of the date of default,
shall be deemed a part of the secured indebtedness and shall be immediately due and payable by
Mortgagor to Mortgagee.
5.12 Compliance with Law. The Mortgagor warrants and represents the Mortgagor has
complied, and shall hereafter comply, with all valid laws, niles, ordinances and regulations of the
federal, state and local government, and all agencies and subdivisions thereof which laws rules,
ordinances and regulations apply or relate to the Mortgaged Property, the development, construction
and improvements existing or contemplated thereon or as a part thereof, and the sale or other
disposition of the Mortgaged Pmperty, or parts thereof, or the improvements now or hereafter
located thereon or a part thereof, including, but not limited to, all such laws, rules, ordinances, and
regulations regarding land use, zoning, building, subdivision, environment, OSHA, pollution and
sales practices.
5.13 Construction. Ttris Mortgage and all related loan documents, including but not
limited to the Ageement, shall not be construed more strongly against any party regardless of who
was more responsible for its preparation.
5.14 Addresses for Notices.
A. Any notice, report, demand or other instrument authorized or required to be given
or fumished under this Mortgage to Mortgagor or Mortgagee shall be deemed given or fumished
when addressed to the party intended to receive t6e same, at the address of such party on the first
page hereof, and delivered at such address by personal delivery, national ovemight courier
company, or when mailed by first class U.S. Mail, postage prepaid and deposited into the U.S.
Mail, being deemed the delivery of notice, or when given by facsimile transmission or via e-mail,
as follows:
To Mortgagor: Mr. and Mrs. Sebastian Domer
1180 Gulf Boulevard
Clearwater, FL 33767
FAX # (72� 588-9404
To Mortgagee: Attn: City Attomey
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
FAX # (727) 562-4021
B. Either party may change the address to which any such notice, report, demand or other
instrument is to be delivered or mailed, by fumishing written notice of such change to the other
party, but no such notice of change shall be effective unless and until received by such other party.
5.15 Termination of Agreement. This Performance Mortgage shall not be affected by
termination of the Agreement, to the extent that the CRA (Mortgagee) has expended funds or is
obligated to expend funds pursuant to the Agreement, all obligations under this Performance
Mortgage shall survive.
11
NO DOCUMENTARY STAMP TAXES OR INTANGIBLE PERSONAL PROPERTY
TAXES ARE DUE ON THIS MORTGAGE BECAUSE IT SECURES THE PERFORMANCE
OF AN OBLIGATION, NOT THE PAYMENT OF MONEY.
II�I WITNESS WHEREOF, the Mortgagor has made, executed, sealed and delivered this
Mortgage, the day and year first above written.
Signed, sealed and delivered
in the presence of:
� �_��vt�
y ��
Prll'1� Yl.� N M� 1�!'1
Print Name �{SG
As to "Mortgagor"
STATE OF FLORIDA
COUNTY OF PINELLAS
.d���a.� �et�f , _ �y,
�j Sebastian Dorner
� � � 1..�/. �� i ✓
���- � �� i-
I HEREBY CERTIFY, that on this day personally appeared before me, an officer duly
authorized to administer oaths and take acknowledgments, by SEBASTIAN DORNER and
ELIZABETH DORNER, his wife, me l�own to be the individuals described in, or who produced
as identification, and who executed the foregoing instrument, and they
acknowledged before me that they executed the same as their free act and deed for the purposes
therein expressed.
WIT'NESS my hand and official seal at Clearwater, said County and State, this a�T� day of
� i'� � E PZ , 2006.
12
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EXHIBIT D
Memorandum of Development Agreement
[Clearwater Centre]
This Memorandum of Development Agreement ("Memorandum") is made this
day of , 200_, by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public
body corporate and politic of the State of Florida (the "Agency"), whose address is 112
S. Osceola Avenue, Clearwater, FL 33756, and CLEARWATER CENTRE, L.L.C., a
Florida limited liability company ("Developer"), whose address is 1100 Cleveland St.,
Ste. 101, Clearwater, FL 33755.
This Certificate pertains to a Development Agreement (Clearwater Centre
Development) by and between the Agency and the Developer, dated as of
, 200_ (the "Development Agreement"), which provides, among
other things, for the construction of the Cleannrater Centre Project as same is defined
and provided in the Development Agreement.
The Development Agreement is incorporated herein and made a part hereof by
reference as fully as though it were set forth herein in its entirety. It is the intention of the
parties to hereby ratify, approve and confirm the Development Agreement as a matter of
public notice and record. Nothing herein shall in any way affect or modify the
Development Agreement, nor shall the provisions of this Memorandum be used to
interpret the Development Agreement. In the event of conflict between the terms of this
document and those contained in the Development Agreement, the terms in the
Development Agreement shall control.
A copy of the fully-executed Development Agreement is on file with the. City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue,
Clearwater, Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of the day of , 200_
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF
CLEARWATER, FLORIDA
�
Approved as to form: Attest:
Frank V. Hibbard
Chairperson
Pamela K. Akin Cynthia E. Goudeau
City Attorney City Clerk
CLEARWATER CENTRE, L.L.C.,
a Florida limited liability company
Witnesses:
BY:
Sebastian Dorner, its Executive Member
Witnesses:
By:
Elizabeth Dorner
Witnesses: By:
Guy M. Bonneville, its Managing Member
By:
STATE OF FLORIDA
COUNTY OF PINELLAS
ATTEST:
Secretary
(SEAL)
The foregoing instrument was acknowledged before me this day of
, 200_, by Sebastian Dorner and Guy M. Bonneville, Executive
Member and Managing Member, respectively of Clearwater Centre, L.L.C., a Florida
limited liability company, on behalf of such limited liability company, and by Elizabeth
Dorner. They are personally known to me or have produced a valid driver's license as
identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
EXHIBIT E
Agreement Expiration Certificate
[Clearvvater Centre]
This Agreement Expiration Certificate ("Certificate") is made this day of
, , by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public
body corporate and politic of the State, of Florida (the "Agency"), whose address is 112
S. Osceola Avenue, Clearwater, FL 32521, and CLEARWATER CENTRE, L.L.C., a
Florida limited liability company ("Developer"), whose address is 1100 Cleveland St.,
Ste. 101, Clearwater, FL 33755.
This Certificate pertains to a Development Agreement (Clearwater Centre
Development) by and between the Agency and the Developer, dated as of
, 200_ (the "Development Agreement"), which provides, among
other things, for the construction of the Cleanivater Centre Project as same is defined
and provided in the Development Agreement.
The Development Agreement has expired in accordance with its own terms as of
, , and is no longer of any force or effect, and the
Clearwater Centre site is no longer subject to any restriction, limitation, or encumbrance
imposed by the Development Agreement. This Certificate has been executed by the
parties to the Development Agreement as provided in Section 11.19 thereof and
constitutes a conclusive determination of satisfactory completion of all obligations under
such Development Agreement and that the Development Agreement has expired.
A copy of the fully-executed Development Agreement is on file with the City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue,
Cleannrater, Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of the DAY OF , 200_.
[SIGNATURE PAGES FOLLOW]
Witnesses:
Witnesses:
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF
CLEARWATER, FLORIDA
By:
Frank V. Hibbard
Chairperson
Attest:
Cynthia E. Goudeau
City Clerk
CLEARWATER CENTRE, L.L.C.,
a Florida limited liability company
BY:
Sebastian Dorner, its Executive Member
By:
Elizabeth Dorner ,
Witnesses: By:
Guy M. Bonneville, its Managing Member
ATTEST:
By:
Secretary
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 200_, by Sebastian Dorner and Guy M. Bonneville, Executive
Member and Managing Member, respectively of Clearwater Centre, L.L.C., a Florida
limited liability company, on behalf of such limited liability company, and by Elizabeth
Dorner. They are personally known to me or have produced a valid driver's license as
identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
EXHIBIT "F"
AGREEMENT TERMINATION CERTIFICATE
[Ciearwater Centre]
This Agreement Termination Certificate ("Certificate") is made this day of
, , by and between the COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State of
Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL 32521, and
CLEARWATER CENTRE, LLC, a Florida limited liability company (the "Developer"), whose
address is 1100 Cleveland St., Suite 101, Clearwater, FL 33755.
This Certificate pertains to an Agreement for Development and Disposition of
Property (Clearwater Centre Project), by and between the Agency and the Developer, dated as
of , 2004 (the "Development Agreement"), which provides, among
other things, for the sale of property within a project site as described in Exhibit "A" attached
hereto and made a part hereof for the development and construction of the Clearwater Centre
Project, as same is defined in the Development Agreement.
The Development Agreement has terminated in accordance with its own terms as
provided in Section thereof as of _, , and is no longer of any force
or effect except for those provisions which expressly survive termination. This Certificate has
been executed by the parties to the Development Agreement as provided in Section
thereof and constitutes a conclusive determination that the Development Agreement has been
terminated, the rights, duties and obligations of the parties hereto have been terminated and
released (subject to those surviving provisions) and Clearwater Centre is no longer subject to
any restrictions, limitations or encumbrances imposed by the Development Agreement.
A copy of the fully-executed Development Agreement is on file with the City Clerk,
City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida,
which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of the _ day of ,
COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLEARWATER, FLORIDA
ey:
Frank V. Hibbard
Chairperson
Attest:
Cynthia E. Goudeau
City Clerk
Witnesses:
Witnesses:
CLEARWATER CENTRE, L.L.C.,
a Florida limited liability company
BY:
Sebastian Dorner, its Executive Member
By:
Elizabeth Dorner
Witnesses: By:
Guy M. Bonneville, its Managing Member
ATTEST:
By:
Secretary
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 200_, by Sebastian Dorner and Guy M. Bonneville, Executive Member and
Managing Member, respectively of Clearwater Centre, L.L.C., a Florida limited liability company,
on behalf of such limited liability company, and by Elizabeth Dorner. They are personally known
to me or have produced a valid driver's license as identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
DEVELOPMENT AGREEMENT
EXHIBIT G
UTILITY RELOCATION PLAN -1100 CLEVELAND STREET
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REPLACE E�ISTING, ; � � 3 � �1 ' R�k,� A (1) 9d ELBOW (TYP.) ; r .;,,. .- .� •� ; ; :j ; _�__� _ - ; ^ ��,, 5. ACCORDING TO F.I.R.M COMMUNITY PANEL # 12103C0108H THIS SITE LIES OUTSIDE
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ASPHALT ••�---- -�.: ,- a �_.�.; _ ' _--__ ,{
- - -_ �. -- 37'0 37 �`' �l THE 5U0-YEAR FLOOD PLAIN ZONED X" DATED MAY 17TH 2O05 ��
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' '`�' -�- ' `"'Y ' 37.5 � �- (1 } 8" STUB CONSTRUCTION. FAILURE TO INSTALL OR PROPERLY MAINTAIN THESE
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'R BARRICADES WILL RESULT IN ENFORCEMENT ACTION WHICH MAY INCLUDE
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; � , ., �,�� ; S 1: - � � x� �,�'" ,,� '' 89 �Z � �, �� INITIATION OF CIVIL PENALIY PROCEDURES PURSUANT TO SECTION
' '� � " '' `"-�; � �R 373.129, F.A.C_, CAN RESULT IN A PENALTY NOT TO EXCEED $10,004 �
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` R�"" � ��F; ! � _' �� � � 80 '' 7° `?8 77 76 ?5 7�- 7.3 72 -•"'� 71 70 �' PER OFFENSE WITH EACH DATE DURING WHICH SUCH VIOLATION OCCURS � [-a
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� --� ' � ' - � ` , 13 °'- � �� ` '` ! 1- � 11 � � 11 a � 25 �� ;la � � "�, ; SERVICE WITH CITY OF CLEARWATER PUBLIC WORKS DEPARTMENT. � ~
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~ �'�t `-' `� � FIRE HYDRANT ASSEMBLY AT APPLICANT'S EXPENSE 15. ANY VAULTS OR RAMPS OVER WHICH EMERGENCY VEHICLES MAY HAVE TO TRAVEL MUST ���-,
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i� I _ t�. _ ' ~ FDC NOTE: '` �' �`�, 15. F1RE DEPARTMENT CONNECTIONS SHALL BE IDENTIFIED BY A SIGN THAT STATES "NO PARKING ORIGINAL DATE: 05.31.05
� T: � ' 0 FIRE DEPARTMENT CONNECTION" AND SHALL BE DESIGNED IN ACCORDANCE WITH FLORIDA DEPARTMENT
i�,,,, �'-�: �;" E:'!_ -.��.�=3 ��,�' �;_- - FDC LOCATIONS ARE FOR GRAPHICAL PURPOSES ONLY. OF TRANSPQRTATION STANDARDS FOR INFQRMATION SIGNAGE AND BE MAINTAINED WITH A CLEARANCE SHEET
� 4� � FOR EXACT LOCATION AND DESIGN SEE FIRE PROTECTION
�� $; '} .i ____ ,., ;,, ___ .. .,: __ F,7��l2 FEET dl�<FRONT_OF„AND TO THE SIDES OF APPLIANCE AS PER FLORIDA FIRE PREVENTION CODE
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ISSUE DATE: 11.30.06