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COMMUNITY REDEVELOPMENT AGENCY
AGENDA
Location: Council Chambers - City Hall
Date: 12/12/2006- 1 :30 PM
1. Call to Order
2. Approval of Minutes
2.1 Approve the minutes of the October 2, 2006, Community Redevelopment Agency Meeting as submitted
in written summation by the City Clerk.
I@l Attachments
3. CRA Items
3.1 Approve a Development Agreement between the CRA and OPUS South Development, LLC concerning
"Water's Edge" project, 331 Cleveland Street, delineating the terms and conditions for the provision of
certain economic assistance by the CRA.
@) Attachments
3.2 Clearwater Aqua Project Status Review
I@l Attachments
4. Other Business
5. Adjourn
Meeting Date: 12/12/2006
Community Redevelopment
Agency Agenda
Council Chambers - City Hall
SUBJECT / RECOMMENDATION:
Approve the minutes of the October 2, 2006, Community Redevelopment Agency Meeting as submitted in written summation by the City
Clerk.
SUMMARY:
Review Approval: 1) Clerk
COMMUNITY REDEVELOPMENT AGENCY MEETING MINUTES
CITY OF CLEARWATER
October 2, 2006
unapproved
Present:
Frank Hibbard
Hoyt P. Hamilton
William C. Jonson
John Doran
David Albritton
Chair/CRA Trustee
CRA Trustee
CRA Trustee
CRA Trustee
Ex-Officio
Absent:
Carlen Petersen
CRA Trustee
Also present:
William B. Horne II
Garry Brumback
Rod Irwin
Pamela K. Akin
Cynthia E. Goudeau
Patricia O. Sullivan
City Manager
Assistant City
Assistant City
City Attorney
City Clerk
Board Reporter
The Chair called the meeting to order at 1:30 p.m. at City HaiL
To provide continuity for research, items are in agenda order although
necessarily discussed in that order.
2. Approval of Minutes
2.1 Approve the minutes of the Auaust 15, 2006, Community Redevelopment Aaency Meetina
as submitted in written summation by the City Clerk.
moved to approve the minutes of theregular meeting of August 15,
in written summation by the City Clerk to each
duly seconded.
It was
Clerk Cyndie Goudeau
for change was
minutes' Jormat be changed to include specific comments.
professionaFstandards and the current format. No other
the vote being
motion carried unanimously.
Community Redevelopment Agency 2006-10-02
1
3. eRA Items
3.1 Approve the Interlocal AQreement with the Downtown Development Board (DDB) to provide
personnel. administrative and manaQement responsibilities durinQ Fiscal Year 2006/07 in the
amount of $53,143 and refund of the $114,400 difference between the CRA tax increment fee of
$167,543 and the manaQement fee of $53,143.
Florida Statutes 163.387 requires all taxing authorities, whichincludestheDDB
(Downtown Development Board), to make an annual appropriation in an amount equal to the
incremental increase in the ad valorem revenue within the CRA{CommunityRedevelopment
Agency) area.
The DDB's increment payment is $167,543, according tothePinellas County Property
Appraiser's office. The CRA Trustees executed the first InterlocaFAgreement to provide
personnel, administrative and management responsibilities to theDDBinFiscal Year
1999/2000. This is the eighth fiscal year that the CRA would enter into the agreement. The
DDB shall pay the CRA $13,961.92 per month for the services agreed to inthelnterlocal
Agreement. The compensation shall be deducted fromthetaxincrement payment.
The CRA and DDB wish to enter into an Interlocal Agreementpursuant to FloridaStatute
163.01, in which the DDB agrees to perform certainresponsibilitiesandfunctions consistent
with and in furtherance of the redevelopment of downtown andprovidefinancial support for
Clearwater's Main Street Program, in return fOfanamount equal to the difference between the
increment payment and the management fee. The management of the DDBby CRA staff
enables the CRA and the DDB to utilizethe public dollars more efficiently and provides
additional support to the Main Streetprogram. The DDBdesires to financially support the
construction debt service, operation and maintenanceofthe boat slips, docks, boardwalk,
promenade, and related facilities proposed to be constructedintheDowntown Waterfront.
FolloWing approval of the proposed facilities at referendum and upon request of and at
the directionoftheCRA,the DDB shaH contribute $50,000. The intent of the DDB is to
contribute up to $50,000 a year for 10 yearsfor a total not to exceed $500,000.
In response to a question, Economic Development & Housing Director Geri Campos
said the TIF (Tax Increment Financing) is a large portion of the DDB budget. Without it, the
DDB would have insufficient funds to address doWntown issues. The City Attorney said the
proposal is a legitimate use of theTIF.
Trustee Jonson moved to approve the Interlocal Agreement with the Downtown
Development Board (DDB) to provide personnel, administrative and management
responsibilities during Fiscal Year2006/07 in the amount of $53,143 and refund of the $114,400
difference between the CRAtaxincrement fee of $167,543 and the management fee of
$53, 143. The motion was duly seconded and carried unanimously.
4. Other Business: None.
5. Adjourn
The meeting adjourned at 1:43 p.m.
Community Redevelopment Agency 2006-10-02
2
Chair
Community Redevelopment Agency
Attest:
City Clerk
Community Redevelopment Agency 2006-10-02
3
Meeting Date: 12/12/2006
Community Redevelopment
Agency Agenda
Council Chambers - City Hall
SUBJECT / RECOMMENDATION:
Approve a Development Agreement between the CRA and OPUS South Development, LLC concerning "Water's Edge" project, 331
Cleveland Street, delineating the terms and conditions for the provision of certain economic assistance by the CRA.
SUMMARY:
OPUS South Development, LLC is developing the Water's Edge project located at 331 Cleveland Street. The Project is a mixed use
development with a maximum of 157 residential condominium units, approximately 310 private parking spaces, not more than 10,600
square feet of ground level retail and sidewalk and site improvements. Flexible Development Approval was issued by the Community
Development Board (CDB) on August 16, 2005 that permits the development of the Project. The purpose of this Development Agreement is
to secure economic assistance through the Community Redevelopment Agency (CRA) to increase the economic feasibility of a project
which supports the implementation of the City of Clearwater's "District Vision" for the revitalization of the Downtown Core; and to further
the implementation of the Downtown Redevelopment Plan by the development and construction and operation of the Project to enhance the
quality of life, increase employment and improve the aesthetic and useful enjoyment of the downtown. The main business terms of the
Agreement are for (1) the reimbursement of impact fees not to exceed $535,000 and (2) the reimbursement of sidewalk and site
improvements following the Osceola Streetscape Conceptual Design not to exceed $500,000. The total reimbursement to the Developer will
not exceed $1,035,000. The project is estimated to generate between $750,000 and $1,000,000 in tax increment in the first full year of
assessment the project is operational (estimated to be received in 2009). Starting in the fiscal year in which tax increment revenue is
expected to be generated (most likely 2009), the CRA will budget for the anticipated reimbursement to the Developer, and in each annual
budget thereafter until the reimbursement is paid in full. Upon execution and recordation of the Completion Certificate, the Developer will
provide the CRA with documentation verifying both the amount and payment of Impact Fees for the Project by the Developer and the
Developer's expenditures for the Sidewalk and Site Improvements. Within thirty (30) days after receipt of such documentation, the Agency
will acknowledge in writing to the Developer the amount of: a) the Impact fees to be reimbursed to the Developer and b) the cost of the
Sidewalk and Site Improvements constructed by the Developer. Within sixty (60) days after the Developer has paid its annual Ad Valorem
Taxes, the Agency shall pay the Developer the lesser of the amount necessary to satisfy the total reimbursement due Developer, or fifty
percent (50%) of the increment of the Project's Annual Ad Valorem Taxes that are paid to the City of Clearwater and/or the Agency that
year. Ifthe first Annual Reimbursement (50% of the City of Clearwater's and Agency's Tax Increment) is not sufficient to satisfy the Total
Reimbursement Due Developer, then the Annual Reimbursement shall be continued for up to three (3) additional years (for a maximum total
of four (4) years after recordation of the Certificate of Completion) until the Agency has paid the Developer the Total Reimbursement Due
Developer. Upon completion of the terms of this Agreement all parties will execute an Agreement Expiration Certificate. If the Agreement
is not terminated earlier, it will terminate on the 10th anniversary of the effective date.
Type:
Current Year Budget?:
Other
None
Budget Adjustment:
None
Budget Adjustment Comments:
Current Year Cost:
Not to Exceed:
For Fiscal Year:
o
$1,035,000
2009 to 2012
Annual Operating Cost:
Total Cost:
o
$1,035,000
Review Approval: 1) Office of Management and Budget 2) Legal 3) Clerk 4) City Manager 5) Clerk 6) City Manager 7) Clerk
DEVELOPMENT AGREEMENT
(Waters Edge Development)
This Development Agreement ("Agreement") is made as of 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 created pursuant to Part III, Chapter 163, Florida Statutes ("Agency"), and OPUS
SOUTH DEVELOPMENT, L.L.C., a Delaware limited liability company ("Developer").
WIT N E SSE T H:
WHEREAS, Developer proposes to develop certain parcels located at the southwest
corner of the intersection of Cleveland Street and Osceola A venue, Clearwater, Florida, and
legally described as set forth in Exhibit A, as a development to be known as the Waters Edge
project ("Waters Edge Project" or "Project") as more specifically described and defined herein,
in the community redevelopment area of the City;
WHEREAS, Developer has requested certain assurances and incentives to insure the
success of the Project, which negotiations have resulted in this Agreement;
WHEREAS, at a duly called public meeting on , 200 , the
Agency approved this Agreement and authorized and directed its execution by the appropriate
officials of the Agency;
WHEREAS, the members (as that terms 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 otherwise expressly provided:
(1) "Act" means the Constitution of the State of Florida; Section 163.01, Florida
Statutes, Part III, Chapter 163, Florida Statutes; Chapter 166, Florida Statutes, other applicable
provisions of law, and ordinances and resolutions of the City and the Agency implementing
them.
(2) "Agency" means the Community Redevelopment Agency of the City, as created
by Resolution No. 81-68 of the City, adopted by the City Council on August 6, 1981, including
any amendments thereto, and any successors or assigns thereto.
(3) "Agreement" means this 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 F.
(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.
(6) "Allowable Retail Uses" means a neighborhood commercial retail establishment
that sells or leases goods directly to the consumer, including but not limited to a book store, gift
shop, antique store, florist, clothing store, video store, art gallery, tailor or seamstress, gourmet
grocery store (including accessory sales of alcoholic beverages and prepared food for off site
consumption), restaurant (including accessory sales of alcoholic beverages), and sidewalk cafe as
accessory to the principal retail/restaurant use.
(7) "Alternative Retail Uses" means dry cleaners, financial institution, or business
office, but not medical or veterinary office.
(8) "Area" means the area located within the corporate limits of the City having
conditions of slum and blight (as those conditions are defined in the Act) as found by the City
Council in Resolution No. 81-67, adopted by the City Council on August 6, 1981, and as
amended by Resolution No. 03-22, adopted by the City Council on May 1, 2003.
(9) "Authorized Representative" means the person or persons designated and
appointed from time to time as such by the Developer or the Agency, respectively, pursuant to
Section 2.04.
2
(10) "Building Permit" means, for all or any part of the Waters Edge Project to be
constructed on the Site, any permit issued by the City authorizing, allowing and permitting the
commencement, prosecution and completion of construction to the extent provided in said
permit.
(11) "City" means the City of Clearwater, Florida, a Florida municipal corporation,
and any successors or assigns thereto.
(12) "City Council" means the governing body of the City, by whatever name known
or however constituted from time to time.
(13) "Commencement Date" means the date of issuance of the first Building Permit for
any part ofthe Waters Edge Project.
(14) "Completion Date" means the date on which construction of the Project IS
substantially complete as evidenced by a Completion Certificate.
(15) "Contractor" means one or more individuals or firms constituting a general
contractor or other type of construction contractor properly licensed by the State of Florida or
other appropriate jurisdiction to the extent required by applicable law, authorized to perform
construction contractor services in the State of Florida, registered with the City as required by
applicable law, bonded and insured to the extent required by applicable law and this Agreement,
including the Developer or any affiliates of the Developer.
(16) "Developer" means Opus South Development, L.L.C., a Delaware limited liability
company, and any successors and assigns thereof, including any entity, partnership, joint
venture, or other person in which Opus South Development, L.L.C., is a general partner or
principal, but not including any entity, partnership, joint venture, or other person in which Opus
South Development, L.L.C. is a general partner or principal which is not undertaking or
participating in any development of the Waters Edge Project, or any part thereof.
(17) "Effective Date" means the date determined in accordance with Section 11.20
when the Memorandum of Development Agreement is recorded and this Agreement becomes
effective.
(18) "Exhibits" means those agreements, diagrams, drawings, specifications,
instruments, forms of instruments, and other documents attached hereto and designated as
exhibits to, and incorporated in and made a part of, this Agreement.
(19) "Expiration Date" means the date on which this Agreement expires, as evidenced
by the Agreement Expiration Certificate being recorded in the public records of Pinellas County,
Florida, as provided in Section 11.19 hereof.
3
(20) "Impact Fees" means those fees and charges levied and imposed by the City,
Pinellas County and any other governmental entity on projects located on the Site for certain
facilities and services impacted by development such as the Project.
(21) "Permits" means all zoning, variances, approvals and consents required to be
granted, awarded, issued, or given by any governmental authority in order for construction of the
Project, or any part thereof, to commence, continue, be completed or allow occupancy and use,
but does not include the Building Permit.
(22) "Plan" means the community redevelopment pIan for the Area, including the Site,
as adopted by the City Council on _, _, by enactment of its Ordinance No.
, and including any amendments to the Plan.
(23) "Project" means the Waters Edge Project.
(24) "Project Plans and Specifications" means the plans and specifications pertaining
to the construction, installation and equipping of the Waters Edge Project, including the schedule
for completing the Project, consisting of the plans and specifications.
(25) "pr,oject 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.
(28) "Sidewalk and Site Improvements" means construction of public sidewalks,
including but not limited to sidewalks, site furnishings, landscaping, public art and sidewalk
material finishes to be located on the Site and adjacent public right-of-way as provided in the
Sidewalk and Site Improvements Plan attached as Exhibit D.
(29) "Site" means that certain property with a street address of 331 Cleveland Street,
located in Clearwater, Florida, as more particularly described on Exhibit A attached hereto, on
which the Waters Edge Project is to be located.
(30) "Site Plan" means the depiction and description of the Project on the Site, as
approved by the City of Clearwater Community Development Board ("CDB"), and 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.
4
(33) "Waters Edge Project" means the development comprised of not more than 157
residential condominium units and appurtenant facilities, approximately 310 private parking
spaces, not more than 10,600 square foot of ground level Allowable Retail Uses, and Sidewalk
and Site 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 A2reement.
(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 157 residential condominium units, approximately 310 private parking
spaces, not more than 10,600 square foot of ground level Allowable Retail Uses, and Sidewalk
and Site 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 govermhental authorities as are necessary for development of the
Project.
5
(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. The redevelopment of the Site, specifically including the
design, construction, equipping, completion and use of the Project, and each component thereof,
is hereby found by the Agency and acknowledged by the Developer: (1) to be consistent with
and in furtherance of the objectives of the Plan, (2) to conform to the provisions of the Act, (3) to
be in the best interests of the citizens of the City, (4) to further the purposes and objectives of the
Agency, and (5) to further the public purpose of eradicating conditions of blight in the Area.
The parties recognize and agree that during the process of review and approval provided for in
the Agreement the design of the Project may be subject to change and modification as may be
either agreed to by the parties or required as provided herein or by the appropriate regulatory
authority, and should any changes be necessary or desirable the parties agree that they will act
expeditiously and reasonably in reviewing and approving or disapproving any changes or
modifications to the Project.
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.
6
(c) The Developer does hereby notify the Agency that its initial Authorized
Representative for the Project is William R. West of Opus South Development, L.L.C.
(d) The Agency does hereby notify the Developer that its initial Authorized
Representative is Rod Irwin, Executive Director of the CRA.
ARTICLE 3. LAND USE REGULATION.
3.01. Zonin2;. On the Effective Date, the zoning classification for the Site is
"Downtown District", abbreviated as "D." The parties recognize and acknowledge that the
zoning classification of the Site as of the Effective Date, as well as the Flexible Development
Approval issued by the Community Development Board (CDB) on August 16, 2005, permits
development of the Project.
3.02. Redevelopment Plan. The Agency represents to the Developer and the
Developer acknowledges that as of the Effective Date, the provisions of the Plan pertaining to
the Site were consistent with the Waters Edge Project as contemplated by the Proposal and this
Agreement.
3.03. Development of Re2;ional Impact. The parties hereto acknowledge and agree
that the Project as contemplated by the Proposal and this Agreement was not and is not as of the
Effective Date a "development of regional impact" within the meaning of Section 380.06, Florida
Statutes.
3.04. Permits.
(a) The Developer shall prepare and submit to the 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.
(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.
7
(d) Notwithstanding any other provisions of this Agreement, any required permitting,
licensing or other regulatory approvals by the Agency or the City shall be subject to the
established procedures and requirements of the Agency or the City with respect to review and
permitting of a project of a similar or comparable nature, size and scope. In no event shall the
Agency or the City, due to any provision of this Agreement, be obligated to take any action
concerning regulatory approvals except through its established processes and in accordance with
applicable provisions of law.
3.05. Concurrency.
(a) The parties hereto recognize and acknowledge that Florida law (specifically, Part
II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, collectively the
"Growth Management Act") impose restrictions on development if adequate public
improvements are not available concurrently with that development to absorb and handle the
demand on public services caused by that development. The City has created and implemented a
system for monitoring the effects of development on public services within the City. The
Developer recognizes and acknowledges it must satisfy the concurrency requirements of Florida
law as applied to the Project. Specifically, the Developer covenants and agrees to comply with
the City's land development code, including providing to the City any and all data and analysis
that shows the Project will be consistent with the goals, objectives and policies of the
comprehensive plan for the City, adopted by the City and in effect on the Effective Date, and the
Developer further covenants and agrees to comply with concurrency certification provisions of
the City's land development code.
(b) The Agency represents and warrants and the Developer acknowledges that as of
the Effective Date the Project as contemplated by this Agreement does not require any
reservation of capacity or to seek any approvals as a result of the concurrency requirements
described in subsection (a). If legally obligated in the future to comply with such requirements,
the Developer agrees to seek issuance of a concurrency compliance certificate or other similar
document by whatever name known and a reservation of services capacity under the City's
concurrency management system, and does further agree to maintain such certificate and
reservation. The Developer covenants and agrees with the Agency not to undertake any action, or
fail to take any action, which would cause the City to revoke or invalidate the concurrency
compliance certificate or the reservation of services capacity.
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 157 residential condominium dwelling
units and associated amenities.
8
(b) The Project shall have approximately 310 private parking spaces.
(c) The project shall contain approximately 10,600 square feet of Allowable Retail
Uses on the first floor.
(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 above.
However, should the Developer be unable to obtain an allowable retail use within one year of
issuance of a Certificate of Occupancy for the retail space, the City may allow, upon written
request of the Developer, one or more Alternative Retail Uses to occupy the first floor retail
space.
( e) Provided however, the following uses are prohibited:
1. All uses prohibited by the Clearwater Downtown Redevelopment Plan;
2. All other retail uses not specifically defined herein as Allowable Retail
Uses or Alternative Retail Uses, pursuant to the Community Development
Code's definition of retail sales and services;
3. Nightclub or bar;
4. Alcoholic beverage package store;
5. Medical or veterinary offices.
ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS.
4.01. Site Plan.
(a) The Developer has prepared and received approval from the CDB of a
preliminary Site Plan, a copy of which is attached hereto as Exhibit B, that contemplates
development of the Project consistent with this Agreement. The Developer agrees that during
the term of this Agreement any material changes to the preliminary Site PIan 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 approved by the Agency and shall
be the basis for and incorporated into the Project Plans and Specifications.
9
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, shall not be considered a Building Permit for purposes of this
Agreement.
5.02. Construction of the Project.
(a) (1) The Developer shall construct the Project on the Site substantially in
accordance with the Project Plans and Specifications therefor. Subject to Unavoidable Delay and
the terms and conditions in this Agreement, the Developer shall commence construction of the
Project by August 2006.
(2) For purposes of this Section 5.02, "commence construction" of the Project
means commencement of meaningful physical development of that part of the Project as
authorized by the Building Permit, which shall include construction pursuant to a foundation
permit, which is continued and prosecuted with reasonable diligence toward and with the
objective of completion ofthe Project.
(b) (1) After the Commencement Date, the Developer shall continue, pursue and
prosecute the construction of the Project with reasonable diligence to completion by the
Completion Date and shall not at any time actually or effectively have abandoned (or its
Contractor having actually or effectively abandoned) the Site. For purposes of this subsection
(b), "abandoned" means to have ceased any construction work which effectively advances the
construction of the Project toward completion. The Developer shall complete construction of the
Project no later than three (3) years from the Commencement Date.
(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
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not being made in the construction of the Project and to respond within ten (10) business days
thereafter as to why adequate progress is or is not being made toward completion of the Project.
5.03. Project Alterations or Improvements. During the construction of the Project,
the Developer may, from time to time, make alterations and improvements, structural or
otherwise, to the Project as the Developer deems desirable and consistent with the Project Plans
and Specifications for the use contemplated by this Agreement; provided, however, that prior to
the commencement of any material alterations or improvements of sufficient size and scope as to
constitute a material change in the previously approved Project Plans and Specifications, the
Developer shall notify the Agency of such material change and may submit a change,
amendment or revision to the Project Plans and Specifications to the Agency for review.
Nothing in this Section 5.03 is intended nor shall be deemed to limit or restrict the exercise of
governmental or regulatory powers or authority by the City or any other governmental entity or
to enlarge its regulatory authority.
5.04. Completion Certificate.
(a) (1) Upon the substantial completion of the construction of the Project in
accordance with the provisions of this Article 5, the Developer shall execute the Completion
Certificate, the form of which is attached hereto as Exhibit C, which shall then be delivered to
the Agency. Upon receipt of the certificate the Agency shall promptly and diligently proceed to
determine if construction of the Project has been completed substantially in accordance with the
Project Plans and Specifications and this Agreement. Upon making such a determination, the
Agency shall execute the certificate and return it to the Developer. The date of the Completion
Certificate shall be the date when all parties shall have executed said certificate.
(2) The Completion Certificate shall constitute a conclusive determination by
the parties hereto of the satisfaction and termination of the obligations of the Developer
hereunder to construct the Project; provided, however, that nothing in this Section 5.04 shall be a
waiver of the rights, duties, obligations or responsibilities of the City or any other governmental
entity acting in its regulatory or governmental capacity or an approval of said construction for
purposes of the issuance of a certificate of occupancy for the Project.
(3) The parties agree that it is their intent that the review by the Agency for
purposes of the Completion Certificate determination pursuant to this Section 5.04 is not to be an
additional or duplicate inspection over and above that required for purposes of the Building
Permit, including the issuance of a certificate of occupancy. The Agency agrees that for
purposes of determining if the Project has been substantially completed in accordance with the
Project Plans and Specifications, the issuance of a certificate of occupancy for the Project shall
be a conclusive determination of substantial completion for purposes ofthis subsection (a) and, if
such certificate has been determined to have been issued, then the Agency agrees to execute the
Completion Certificate.
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(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)(l) for the
original request.
( c) The Completion Certificate shall be in a form sufficient to be recorded in the
public records of Pinellas County, Florida. After execution by the Agency, it shall be promptly
returned to the Developer who shall record the certificate in the public records of Pinellas
County, Florida, and pay the cost of such recording.
5.05. A2encv Not in Privity with Contractors. The Agency shall not be deemed to be
in privity of contract with any Contractor or provider of goods or services with respect to the
construction of any part of the Project.
ARTICLE 6. REIMBURSEMENTS BY AGENCY.
6.01. Reimbursement of Impact Fees. Following execution and recordation of the
Completion Certificate and upon payment by the Developer of ad valorem taxes for the Project,
the Agency shall reimburse the Developer in a total amount not to exceed $535,000 for Impact
Fees paid by the Developer for the Project in accordance with Section 6.03 hereof.
6.02 Reimbursement of Sidewalk and Site Improvements. Following execution and
recordation of the Completion Certificate and upon payment by the Developer of ad valorem
taxes for the Project, the Agency shall reimburse the Developer in accordance with Section 6.03
hereof, in a total amount not to exceed $500,000 for Sidewalk and Site Improvements
constructed by the Developer as provided in the Sidewalk and Site Improvements Plan attached
hereto as Exhibit D, and as part of the Project.
6.03 Reimbursement Requirements and Process. Upon execution and
recordation of the Completion Certificate, the Developer shall provide the Agency with
documentation verifying both the amount and payment of Impact Fees for the Project by the
Developer and the Developer's expenditures for the Sidewalk and Site Improvements. Within
thirty (30) days after receipt of such documentation, the Agency shall acknowledge in writing to
the Developer the amount of: a) the Impact Fees to be reimbursed to the Developer (as set forth
in the submitted documentation, but not to exceed $535,000.00, as provided in Section 6.01
hereof); and b) the cost of the Sidewalk and Site Improvements constructed by the Developer to
be reimbursed to the Developer (as set forth in the submitted documentation, not to exceed
$500,000.00, as provided in Section 6.02 hereof). The total amount of Impact Fees and the
construction costs for the Sidewalk and Street Improvements to be reimbursed by the Agency to
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the Developer (subject to the foregoing monetary limitations and as confirmed in writing by the
Agency after documentation thereof by the Developer) is hereinafter referred to as the "Total
Reimbursement Due Developer".
The Total Reimbursement Due Developer shall be made by the Agency to the
Developer, after the issuance of the Certificate of Completion, in accordance with the following:
a) Within sixty (60) days after the Developer has paid its annual ad valorem taxes
due in connection with the Project (the "Project's Annual Ad Valorem Taxes"), the
Agency shall pay Developer the lesser of the amount necessary to satisfy the Total
Reimbursement Due Developer, or fifty percent (50%) of the increment of the Project's
Annual Ad Valorem Taxes that are paid to the City of Clearwater and/or the Agency that
year (the "50% of the City of Clearwater's and Agency's Tax Increment" or the "Annual
Reimbursement"); and
b) If the first Annual Reimbursement (i.e., 50% of the City of Clearwater's and
Agency's Tax Increment) is not sufficient to satisfy the Total Reimbursement Due
Developer, then the Annual Reimbursement shall be continued in accordance with
Section 6.03(a) above for up to three (3) additional years (for a maximum total of four (4)
years after recordation of the Certificate of Completion) until the Agency has paid to the
Developer the Total Reimbursement Due Developer hereunder; and
c) Notwithstanding any provision herein to the contrary, it is understood and agreed
that: i) the total amount paid by the Agency to the Developer pursuant to the terms
hereof shall not exceed the Total Reimbursement Due Developer; and b) the Agency
shall only be required to make payments to the Developer in accordance with this Section
6.03 for a maximum of four (4) years after recordation of the Certificate of Completion.
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 Delaware limited liability company duly organized and validly
existing under the laws of the State of Florida, has all requisite power and authority to carryon
its business as now conducted, to own or hold its properties and to enter into and perform its
obligations hereunder and under each document or instrument contemplated by this Agreement
to which it is or will be a party, is qualified to do business in the State of Florida, and has
consented to service of process upon a designated agent for service of process in the State of
Florida.
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(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which Developer is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and delivered by, the Developer,
and neither the execution and delivery thereof, nor compliance with the terms and provisions
thereof or hereof: (1) requires the approval and consent of any other party, except such as have
been duly obtained or as are specifically noted herein, (2) contravenes any existing law,
judgment, governmental rule, regulation or order applicable to or binding on the Developer, (3)
contravenes or results in any breach of, default under or, other than as contemplated by this
Agreement, results in the creation of any lien or encumbrance upon any property of the
Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the
Developer's articles of organization, or, any other agreement or instrument to which the
Developer is a party or by which the Developer may be bound.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Developer is or will be a party constitutes, or when entered into will
constitute, a legal, valid and binding obligation of the Developer enforceable against the
Developer in accordance with the terms thereof, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles in the event that equitable
remedies are involved.
(d) There are no pending or, to the knowledge ofthe Developer, threatened actions or
proceedings before any court or administrative agency against the Developer, or against any
controlling manager, member, employee or agent of the Developer, which question the validity
of this Agreement or any document contemplated hereunder, or which are likely in any case, or
in the aggregate, to materially adversely affect the consummation of the transactions
contemplated hereunder or the financial condition of the Developer.
(e) The Developer has filed or caused to be filed all federal, state, local and foreign
tax returns, if any, which were required to be filed by the Developer, and has paid, or caused to
be paid, all taxes shown to be due and payable on such returns or on any assessments levied
against the Developer.
(f) All financial information and other documentation, including that pertaining to
the Project or the Developer, delivered by the Developer to the City and the Agency, was, on the
date of delivery thereof, true and correct.
(g) The principal place of business and principal executive offices of the Developer
are in Tampa, Florida and, until the expiration or termination of this Agreement, the Developer
will keep original or duplicate records concerning the Project (such as construction contracts,
financing documents and corporate documents) and all contracts, licenses and similar rights
relating thereto at an office located in the corporate limits of the City of Clearwater.
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(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 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 11.01, 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 ofthe corporation of Developer.
(f) The Developer shall not sell, lease, transfer or otherwise dispose of all or
substantially all its assets without adequate consideration and will otherwise take no action
which shall have the effect, singularly or in the aggregate, of rendering Developer unable to
15
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 carryon its business as now conducted and to perform its
obligations hereunder and under each document or instrument contemplated by this Agreement
to which it is or will be a party.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and delivered by, the Agency, and
neither the execution and delivery thereof, nor compliance with the terms and provisions thereof
or hereof (1) requires the approval and consent of any other party, except such as have been duly
obtained or as are specifically noted herein, (2) contravenes any existing law, judgment,
governmental rule, regulation or order applicable to or binding on the Agency, (3) contravenes or
results in any breach of, or default under or, other than as contemplated by this Agreement,
results in the creation of any lien or encumbrance upon any property of the Agency under any
indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances,
resolutions or, on the date of this Agreement, any other agreement or instrument to which the
Agency is a party, specifically including any covenants of any bonds, notes, or other forms of
indebtedness of the Agency outstanding on the Effective Date.
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(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 ofthe
Termination Date or the Expiration Date:
(a) The Agency shall timely perform or cause to be performed all of the obligations
contained herein which are the responsibility of the Agency to perform.
(b) During each year that this Agreement and the obligations of the Agency under
this Agreement shall be in effect, the Agency shall cause to be executed and to continue to be in
effect those instruments, documents, certificates, permits, licenses and approvals, and shall cause
to occur those events contemplated by this Agreement that are applicable to and are the
responsibility of the Agency.
( c) The Agency shall assist and cooperate with the Developer to accomplish the
development of the Project in accordance with this Agreement and the Project Plans and
Specifications, will carry out its duties and responsibilities contemplated by this Agreement, and
will not violate any laws, ordinances, rules, regulations, orders, contracts, or agreements that are
or will be applicable thereto, and, to the extent permitted by law, the Agency will not enact or
adopt or urge or encourage the adoption of any ordinances, resolutions, rules, regulations or
orders or approve or enter into any contracts or agreements, including issuing any bonds, notes,
or other forms of indebtedness, that will result in any provision of this Agreement to be in
violation thereof.
(d) The Agency shall maintain its financial capability to carry out its responsibilities
as contemplated by this Agreement and shall notify the Developer of any event, condition,
occurrence, or change in its financial condition which adversely affects, or with the passage of
time is likely to adversely affect, the Agency's financial capability to carry out its responsibilities
contemplated hereby.
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ARTICLE 9. DEFAULT; TERMINATION.
9.01. Default by Developer.
(a) Provided the Agency is not then in default of this Agreement under Section 9.02
hereof, there shall be an "event of default" by the Developer upon the occurrence of anyone 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
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
18
default, then the Agency may proceed to enforce other available remedies without providing any
additional notice to the Developer.
(2) Any attempt by the Agency to pursue any of the above referenced
remedies will not be deemed an exclusive election of remedy or waiver of the Agency's right to
pursue any other remedy to which either may be entitled.
(3) Any time periods or deadlines provided in this Agreement shall be tolled
or extended by the amount of time to cure any event of default hereunder if such event affects the
Developer's or Agency's ability to perform by such deadline or the expiration of such period.
(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 of reimbursements
for Impact Fees or Sidewalk and Site Improvements.
9.02. Default bv the Ae:encv.
(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 ofthe 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
19
in good faith, the curative period shall be extended for a period of not exceeding an aggregate of
thirty (30) days without any approval or consent of the Developer being required, but such
approval will be required (and shall be given or withheld in Developer's sole discretion) if the
curative period is to be extended beyond thirty (30) days after the notice of default has been
given by the Developer to the Agency if the Agency has commenced to cure such default within
such thirty (30) day period and is diligently prosecuting such curative action to completion. The
Agency shall within said thirty (30) day period or such longer period promptly, diligently and in
good faith proceed to cure such event of default after receipt of the notice from the Developer
and shall succeed in curing such event of default within said period of time, provided, however,
if the Agency shall fail to cure such event of default within said thirty (30) day or longer period
or ceases to proceed diligently to timely cure such event of default, then the Developer may
proceed with its available remedies without providing any additional notice to the Agency.
(d) Any attempt by the Developer to pursue any of the remedies referred to in
paragraphs (a), (b), or (c) above will not be deemed an exclusive election of remedy or waiver of
the Developer's right to pursue any other remedy to which it might be entitled.
(e) Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if such event affects the
Developer's or Agency's ability to perform by such deadline or the expiration of such period.
9.03. Oblh!ations. Ri2hts 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 A2reement. 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
20
development of the Project have not been satisfied or are subject to certain conditions, legal
requirements or approvals beyond the control of any of the parties hereto or which cannot be
definitely resolved under this Agreement. In recognition of these events or conditions, the
parties hereto mutually agree that, provided the appropriate or responsible party therefor
diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or
condition to occur or be satisfied, the failure of the events or conditions listed in subsection (b)
below to occur or be satisfied shall not constitute an event of default by any party under this
Article 9, but may be the basis for a termination of this Agreement as provided in this Section
9.05.
(b) In addition to any other rights of termination provided elsewhere in this
Agreement, this Agreement may be terminated as provided in subsection (c) after the occurrence
of any ofthe following events or conditions:
(1) All of the Site is taken by the exercise of the power of eminent domain by
a governmental authority (except the City or the Agency) or a person entitled to exercise such
power or benefiting therefrom, or such part of the Site is taken by the power of eminent domain
so as to render the Project commercially unfeasible or unusable for its intended uses as
contemplated by this Agreement;
(2) The appropriate governmental authority (but not including the City in
exercise of its governmental and regulatory authority and responsibility), upon petition by the
Developer, unduly delays or denies or fails to issue the Permits, issue the Building Permits, or
approve any other land use approval necessary to commence construction of the Project on the
Site;
(3) A moratorium on new construction is imposed by a governmental
authority within the City or Pinellas County so as to prevent construction of the Project to
commence;
(4) The City or other appropriate governmental authority has issued a
concurrency compliance certificate or a reservation of services capacity as described in Section
3.05 and such certificate or reservation has been revoked, repealed, superseded, or otherwise no
longer of any effect or the Developer is unable to rely upon such certificate or reservation, if
such a certificate or reservation is required for development of the Project on the Site, and the
Developer cannot obtain a new or replacement certificate or reservation for the Project.
(5) The City approves an amendment to the Plan which is inconsistent with
the Project being located on the Site.
(6) Utilities are not readily available at the boundaries of the Site at locations
satisfactory to the Developer by the Closing Date.
21
(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(c), 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 for any reason prior to the
Expiration Date, each of the parties hereto do covenant and agree with each other to promptly
execute a certificate prepared by the party electing to terminate this Agreement, which certificate
shall expressly state that this Agreement has been terminated in accordance with its terms, is no
longer of any force and effect except for those provisions hereof which expressly survive
termination, that the rights, duties and obligations of the parties hereto have been terminated and
released (subject to those surviving provisions hereof) and that the 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.
22
ARTICLE 10.
UNAVOIDABLE DELAY.
10.01. Unavoidable Delav.
(a) Any delay in performance of or inability to perform any obligation under this
Agreement (other than an obligation to pay money) due to any event or condition described in
paragraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in
this Section 10.01.
(b) "Unavoidable Delay" means any of the following events or conditions or any
combination thereof: acts of God, acts of the public enemy, riot, insurrection, terrorist attack,
war, pestilence, archaeological excavations required by law, unavailability of materials after
timely ordering of same, epidemics, quarantine restrictions, freight embargoes, fire, lightning,
hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement
weather (as indicated by the records of the local weather bureau for a five-year period preceding
the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73
and 74, Florida Statutes, restoration in connection with any of the foregoing or any other cause
beyond the reasonable control of the party performing the obligation in question, including,
without limitation, such causes as may arise from the act of the other party to this Agreement, or
acts of any governmental authority (except that acts of the Agency shall not constitute an
Unavoidable Delay with respect to performance by the Agency).
(c) An application by any party hereto (referred to in this paragraph ( c) and in
paragraph (d) as the "Applicant") for an extension of time pursuant to subsection (a) must be in
writing, must set forth in detail the reasons and causes of delay, and must be filed with the other
party to this Agreement within thirty (30) days following the occurrence of the event or
condition causing the Unavoidable Delay or thirty (30) days following the Applicant becoming
aware (or with the exercise of reasonable diligence should have become aware) of such
occurrence.
(d) The Applicant shall be entitled to an extension of time for an Unavoidable Delay
only for the number of days of delay due solely to the occurrence of the event or condition
causing such Unavoidable Delay and only to the extent that any such occurrence actually delays
that party from proceeding with its rights, duties and obligations under this Agreement affected
by such occurrence.
ARTICLE 11.
MISCELLANEOUS.
11.01. Assh~:nments.
(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
23
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 Assi2ns. The terms herein contained shall bind and inure to the
benefit of the Agency, and its successors and assigns, and the Developer, and its successors and
assigns, except as may otherwise be specifically provided herein.
11.03. Notices.
(a) All notices, demands, requests for approvals or other communications given by
either party to another shall be in writing, and shall be sent by registered or certified mail,
postage prepaid, return receipt requested or by overnight courier service, or by hand delivery to
the office for each party indicated below and addressed as follows:
To the Developer:
Opus South Development, L.L.C.
4200 West Cypress St.
Suite 444
Tampa, FL 33607
Attention: William R. West
24
with copies to:
Jerry Shaw
4200 West Cypress St.
Suite 444
Tampa, FL 33607
Barry Greenfield
4200 West Cypress St.
Suite 444
Tampa, FL 33607
Hill, Ward & Henderson, P .A.
Bank of America Plaza, Suite 3700
101 East Kennedy Boulevard
Tampa, FL 33602
Attn: R. James Robbins, Jr., Esq.
To the Agency:
Community Redevelopment Agency of the City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention: Rod Irwin
with copies to:
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention: City Attorney
(b) Notices given by courier service or by hand delivery shall be effective upon
delivery and notices given by mail shall be effective on the third (3rd) business day after mailing.
Refusal by any person to accept delivery of any notice delivered to the office at the address
indicated above (or as it may be changed) shall be deemed to have been an effective delivery as
provided in this Section 11.03. The addresses to which notices are to be sent may be changed
from time to time by written notice delivered to the other parties and such notices shall be
effective upon receipt. Until notice of change of address is received as to any particular party
hereto, all other parties may rely upon the last address given.
11.04. Severability. If any term, provision or condition contained this Agreement shall,
to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the
application of such term, provision or condition to persons or circumstances other than those in
respect of which it is invalid or unenforceable, shall not be affected thereby, and each term,
provision and condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
25
11.05. Applicable Law and Construction. The laws of the State of Florida shall
govern the validity, performance and enforcement of this Agreement. This Agreement has been
negotiated by the Agency and the Developer, and the Agreement, including, without limitation,
the Exhibits, shall not be deemed to have been prepared by the Agency or the Developer, but by
all equally.
11.06. Venue; Submission to Jurisdiction.
(a) For purposes of any suit, action, or other proceeding arising out of or relating to
this Agreement, the parties hereto do acknowledge, consent, and agree that venue thereof is
Pinellas County, Florida.
(b) Each party to this Agreement hereby submits to the jurisdiction of the State of
Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States
District Court for the Middle District of Florida, for the purposes of any suit, action, or other
proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of
a motion as a defense or otherwise that such action is brought in an inconvenient forum or that
the venue of such action is improper or that the subject matter thereof may not be enforced in or
by such courts.
(c) If at any time during the term of this Agreement the Developer is not a resident of
the State of Florida or has no office, employee, agency or general partner thereof available for
service of process as a resident of the State of Florida, or if any permitted assignee thereof shall
be a foreign corporation, partnership or other entity or shall have no officer, employee, agent, or
general partner available for service of process in the State of Florida, the Developer hereby
designates the Secretary of State, State of Florida, its agent for the service of process in any court
action between it and the Agency arising out of or relating to this Agreement and such service
shall be made as provided by the laws of the State of Florida for service upon a non-resident;
provided, however, that at the time of service on the Florida Secretary of State, a copy of such
service shall be delivered to the Developer at the address for notices as provided in Section
11.03.
11.07. Ae:reement Not a Chapter 86-191, Laws of Florida, Development Ae:reement.
The Developer and the Agency acknowledge, agree and represent that this Agreement, including,
without limitation, any of the Exhibits, is not a development agreement as described in Sections
19-31, Chapter 86-191, Laws of Florida, codified as Sections 163.3220-163.3243, Florida
Statutes.
11.08. Estoppel Certificates. The Developer and the Agency shall at any time and
from time to time, upon not less than ten (10) days prior notice by another party hereto, execute,
acknowledge and deliver to the other parties a statement in recordable form certifying that this
Agreement has not been modified and is in full force and effect (or if there have been
modifications that the said Agreement as modified is in full force and effect and setting forth a
26
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 Ae:reement: Amendments.
(a) This Agreement, and all the terms and provisions contained herein, including
without limitation the Exhibits hereto, constitute the full and complete agreement between the
parties hereto to the date hereof, and supersedes and controls over any and all prior agreements,
understandings, representations, correspondence and statements whether written or oral,
including the RFP and the Proposal.
(b) Any provisions of this Agreement shall be read and applied in para materia with
all other provisions hereof.
( c) This Agreement cannot be changed or revised except by written amendment
signed by all parties hereto.
11.10. Captions. The article and section headings and captions of this Agreement and
the table of contents preceding this Agreement are for convenience and reference only and in no
way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any
way affect this Agreement or construe any article, section, subsection, paragraph or provision
hereof.
11.11. Holidays. It is hereby agreed and declared that whenever a notice or performance
under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal
holiday observed in the City, it shall be postponed to the next following business day.
11.12. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential
part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not
physically attached hereto shall be treated as if they are part of this Agreement.
11.13. No Brokers. The Agency and the Developer hereby represent, agree and
acknowledge that no real estate broker or other person is entitled to claim or to be paid a
commission as a result of the execution and delivery of this Agreement, including any of the
Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any
or all of the Site.
11.14. Not an Ae:ent. 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
27
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 Aereement. The Agency and the Developer
agree to execute, in recordable form, on the Effective Date, the short form "Memorandum of
Development Agreement," the form of which is attached hereto as Exhibit E, 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 Oblieation. 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
pI edge of the ad valorem taxing power of the City or the Agency or a general obligation or
indebtedness of the City or the Agency within the meaning of the Constitution of the State of
Florida or any other applicable laws, but shall be payable solely from legally available revenues
and funds. Neither the Developer nor any other party under or beneficiary of this Agreement
shall ever have the right to compel the exercise of the ad valorem taxing power of the City, the
Agency or any other governmental entity or taxation in any form on any real or personal property
to pay the City's or the Agency's obligations or undertakings hereunder.
11.18. Technical Amendments: Survey Corrections. In the event that due to minor
inaccuracies contained herein or any Exhibit attached hereto or any other agreement
contemplated hereby, or due to changes resulting from technical matters arising during the term
of this Agreement, the parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances 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 (lOth) anniversary of the
Effective Date.
(b) Upon completion of the term of this Agreement, all parties hereto shall execute
the Agreement Expiration Certificate, the form of which is attached hereto as Exhibit F. The
Agreement Expiration Certificate shall constitute (and it shall be so provided in the certificate) a
28
conclusive determination of satisfactory completion of all obligations hereunder and the
expiration of this Agreement.
( c) The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records of Pinellas County, Florida. Following execution by all of the
parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer
in the public records of Pinellas County, Florida, and the Developer shall pay the cost of such
recording.
11.20. Effective Date. Following execution of this Agreement (and such of the Exhibits
as are contemplated to be executed simultaneously with this Agreement) by the authorized
officers of the Agency and by authorized representatives of the Developer following approval
hereof by the Agency and the Developer, this Agreement (and any executed Exhibits) shall be in
full force and effect in accordance with its terms and upon the recording of the Memorandum of
Development Agreement as contemplated by Section 11.15 hereof.
[SIGNATURE PAGES FOLLOW]
29
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of this day of , 200_.
COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLEARWATER, FLORIDA
By:
, Chairperson
Approved as to form:
ATTEST:
By:
Pamela K. Akin, City Attorney
Cynthia E. Goudeau, City Clerk
By:
Print Name:
Signed, sealed and delivered
~~~ By
Print Name: ~J eqyo-..,
P~~i~ Co><
OPUS SOUTH DEVELOPMENT, L.L.C.
, as
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200_, by , Chairperson of the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER, a public body corporate and politic of the
State of Florida, on behalf of the Agency. He is personally known to me or has produced a
valid driver's license as identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
30
ST ATE OF FLORIDA
COUNTY OF HILLS BOROUGH W,
~ The. foregoing instrumept was acknowledged before me thi~day of
, fJe//Vl~20cl..1, by ve/'f\L ,SJ1.a U , vP of OPUS SOUTH
EVELOPMENT, L.L.C., a Delaw~e limited liability company, on behalf of the limited
liability company. He is personally known to me or has produced a valid driv ' . ense as
identification. #fi:7ii4-, LAURA J. COPLON
!;.t~.>f;.. Commission # 00284314
~~:"i Expires 2/2/08
"~'l.1/r"i~'j.."i Old "'=ref~pany
G:\RJR\OPUS\Calvary Baptist Church\Development Agreement\Waters Edge Development Agreement I2-I-06.I.doc
31
LIST OF EXHIBITS
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
Legal Description
Site Plan Approved by CDB
Completion Certificate
Sidewalk and Site Improvements Plan
Memorandum of Development Agreement
Agreement Expiration Certificate
32
EXHIBIT A
Legal Description
Parcel 6
Commence at the Northeast corner of Block A, John R. Davey Subdivision, as recorded in Plat
Book 1, Page 87 of the Public Records of Hillsborough County, Florida, of which Pinellas
County was formerly a part, and proceed S 01022'45" E, along the Easterly line of said Block A,
43.12 feet to the Point of Beginning:
From said Point of Beginning proceed N 90000'00" W, 354.40 feet; said line being the South
right-of-way line of Cleveland Street; thence S 00000'00" E, 174.82 feet; thence N 90000'00" E,
23.61 feet; thence S 01 022'45" E, 56.00 feet; thence N 90000'00" E, 335.00 feet; thence N
01022'45" W, 230.88 feet; said line being the West right-of-way line of Osceola Avenue to the
Point of Beginning.
33
EXHIBIT B
Site Plan Approved by CDB
34
EXHIBIT C
Completion Certificate
This Completion Certificate ("Certificate") 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 OPUS
SOUTH DEVELOPMENT, L.L.C., a Delaware limited liability company (the "Developer"),
whose address is 4200 West Cypress Street, Ste. 444, Tampa, FL 33607.
This Certificate pertains to a Development Agreement (Waters Edge 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
Waters Edge Project as same is defined and provided in the Development Agreement.
As provided in Section 5.04 of the Development Agreement, the construction of the
Project has been completed substantially in accordance with the requirements of the
Development Agreement and such improvements are substantially complete. The parties hereto
acknowledge and agree that the Project has been so completed and have executed this
Certificate as conclusive determination of such completion and satisfaction of the Developer's
obligation under the Development Agreement' to construct the Project.
A copy of the fully-executed Development Agreement is on file with the City Clerk, City
of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida; which
is available for review and copying by the public.
[SIGNATURE PAGES FOLLOW]
35
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as ofthe DAY OF , 200_.
COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLEARWATER, FLORIDA
By:
Name [printed]:
Title: Chairperson
ATTEST:
By:
Name [printed]:
Title: Executive Director
Signed, sealed and delivered
in the presence of:
OPUS SOUTH DEVELOPMENT, L.L.C.
By:
Print Name:
, as
Print Name:
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200_, by , Chairperson of the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER, a public body corporate and politic of the
State of Florida, on behalf of the Agency. He is personally known to me or has produced a
valid driver's license as identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
36
STATE OF FLORIDA
COUNTY OF HILLS BOROUGH
The foregoing instrument was acknowledged before me this _ day of
,200_, by of OPUS SOUTH
DEVELOPMENT, L.L.C., a Delaware limited liability company, on behalf of the limited
liability company. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
37
EXHIBIT D
Sidewalk and Site Improvements Plan
38
EXIDBIT D
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PROPOSED PUBLIC AR~W:~ ] - - - - - I
EXHIBIT E
Memorandum of Development Agreement
[Waters Edge]
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, Clearw3;ter, FL 33756, and
OPUS SOUTH DEVELOPMENT, L.L.C., a Delaware limited liability company (the
"Developer"), whose address is 4200 West Cypress Street, Ste. 444, Tampa, FL 33607.
This Certificate pertains to a Development Agreement (Waters Edge 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
Waters Edge 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.
[SIGNATURE PAGES FOLLOW]
39
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of the _ day of , 200_.
COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLEARWATER, FLORIDA
By:
Name [printed]:
Title: Chairperson
ATTEST:
By:
Name [printed]:
Title: Executive Director
Signed, sealed and delivered
in the presence of:
OPUS SOUTH DEVELOPMENT, L.L.C.
By:
Print Name:
, as
Print Name:
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200 , by , Chairperson of the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER, a public body corporate and politic of the
State of Florida, on behalf of the Agency. He is personally known to me or has produced a
valid driver's license as identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
40
STATE OF FLORIDA
COUNTY OF HILLS BOROUGH
The foregoing instrument was acknowledged before me this _ day of
,200_, by of OPUS SOUTH
DEVELOPMENT, L.L.C., a Delaware limited liability company, on behalf of the limited
liability company. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
41
EXHIBIT F
Agreement Expiration Certificate
[Waters Edge]
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 OPUS SOUTH DEVELOPMENT, L.L.C., a Delaware limited liability company (the
"Developer"), whose address is 4200 West Cypress Street, Ste. 444, Tampa, FL 33607.
This Certificate pertains to a Development Agreement (Waters Edge 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
Waters Edge 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 Waters Edge
site is no longer subject to any restriction, limitation, or encumbrance imposed by the
Development Agreement. This Certificate has been executed by the parties to the Development
Agreement as provided in Section 11.19 thereof and constitutes a conclusive determination of
satisfactory completion of all obligations under such Development Agreement and that the
Development Agreement has expired.
A copy of the fully-executed Development Agreement is on file with the City Clerk, City
of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater, Florida, which
is available for review and copying by the public.
[SIGNATURE PAGES FOLLOW]
42
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of the DAY OF ,200_.
COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLEARWATER, FLORIDA
By:
Name [printed]:
Title: Chairperson
ATTEST:
By:
Name [printed]:
Title: Executive Director
Signed, sealed and delivered
in the presence of:
OPUS SOUTH DEVELOPMENT, L.L.C.
By:
Print Name:
, as
Print Name:
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200-, by , Chairperson of the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER, a public body corporate and politic of the
State of Florida, on behalf of the Agency. He is personally known to me or has produced a
valid driver's license as identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
43
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this _ day of
,200_, by of OPUS SOUTH
D EVELO PMENT, L.L.C., a Delaware limited liability company, on behalf of the limited
liability company. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
44
=
Hill, ':~ & Hende~~g:' P.i\..
RevIsed: 09 05 06
DEVELOPMENT AGREEMENT
(Waters Edge Development)
This Development Agreement ("Agreement") is made as of 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 created pursuant to Part III, Chapter
163, Florida Statutes ("Agency"), and OPUS SOUTH DEVELOPMENT, L.L.C., a
Delaware limited liability company ("Developer").
WIT N E SSE T H:
WHEREAS, Developer proposes to develop certain parcels located at the
southwest corner of the intersection of Cleveland Street and Osceola Avenue,
Clearwater, Florida, and legally described as set forth in Exhibit A, as a development to
be known as the Waters Edge project ("Waters Edge Project" or "Project") as more
specifically described and defined herein, in the community redevelopment area of the
City;
WHEREAS, Developer has requested certain assurances and incentives to
insure the success of the Project, which negotiations have resulted in this Agreement;
WHEREAS, at a duly called public meeting on _, 200_,
the Agency approved this Agreement and authorized and directed its execution by the
appropriate officials of the Agency;
WHEREAS, the members (as that terms 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 otherwise expressly provided:
(1) "Act" means the Constitution of the State of Florida; Section 163.01,
Florida Statutes, Part III, Chapter 163, Florida Statutes; Chapter 166, Florida Statutes,
other applicable provisions of law, and ordinances and resolutions of the City and the
Agency implementing them.
(2) "Agency" means the Community Redevelopment Agency of the City, as
created by Resolution No. 81-68 of the City, adopted by the City Council on August 6,
1981, including any amendments thereto, and any successors or assigns thereto.
(3) "Agreement" means this 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 -4911.19 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 eE.
(5) "Agreement Termination Certificate" means the instrument executed by
the parties hereto as provided in Section ----:009.06 stating that this Agreement has
been terminated prior to its Expiration Date as provided in Section _.05, the form of
\J'lhich is attached hereto as Exhibit ~.9.05.
(6) "Allowable Retail Uses" means a neighborhood commercial retail
establishment that sells or leases goods directly to the consumer, including but not
limited to a book store, gift shop, antique store, florist, clothing store, video store, art
gallery, tailor or seamstress, gourmet grocery store (including accessory sales of
alcoholic beverages and prepared food for off site consumption), restaurant (including
accessory sales of alcoholic beverages), and sidewalk cafe as accessory to the
principal retail/restaurant use.
(7) "Alternative Retail Uses" means dry cleaners, financial institution, or
business office, but not medical or veterinary office.
(8) "Area" means the area located within the corporate limits of the City
having conditions of slum and blight (as those conditions are defined in the Act) as
found by the City Council in Resolution No. 81-67, adopted by the City Council on
August 6, 1981, and as amended by Resolution No. 03-22, adopted by the City Council
on May 1, 2003.
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(9) "Authorized Representative" means the person or persons designated and
appointed from time to time as such by the Developer or the Agency, respectively,
pursuant to Section _.0-1.2.04.
(10) "Building Perm it" means, for all or any part of the Waters Edge Project to
be constructed on the Site, any permit issued by the City authorizing, allowing and
permitting the commencement, prosecution and completion of construction to the extent
provided in said perm it.
(11) "City" means the City of Clearwater, Florida, a Florida municipal
corporation, and any successors or assigns thereto.
(12) "City Council" means the governing body of the City, by whatever name
known or however constituted from time to time.
(13) "Commencement Date" means the date of issuance of the first Building
Permit for any part of the Waters Edge Project.
(14) "Completion Date" means the date on which construction of the Project is
substantially complete as evidenced by a Completion Certificate.
(15) "Contractor" means one or more individuals or firms constituting a general
contractor or other type of construction contractor properly licensed by the State of
Florida or other appropriate jurisdiction to the extent required by applicable law,
authorized to perform construction contractor services in the State of Florida, registered
with the City as required by applicable law, bonded and insured to the extent required
by applicable law and this Agreement, including the Developer or any affiliates of the
Developer.
(16) "Developer" means Opus South Development, L.L.C., a Delaware limited
liability company, and any successors and assigns thereof, including any entity,
partnership, joint venture, or other person in which Opus South Development, L. L. C., is
a general partner or principal, but not including any entity, partnership, joint venture, or
other person in which Opus South Development, L. L. C. is a general partner or principal
which is not undertaking or participating in any development of the Waters Edge
Project, or any part thereof.
(17) "Effective Date" means the date determined in accordance with Section
_.2011.20 when the Memorandum of Development Agreement is recorded and this
Agreement becomes effective.
(18) "Exhibits" means those agreements, diagrams, drawings, specifications,
instruments, forms of instruments, and other documents attached hereto and
designated as exhibits to, and incorporated in and made a part of, this Agreement.
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(19) "Expiration Date" means the date on which this Agreement expires, as
evidenced by the Agreement Expiration Certificate being recorded in the public records
of Pinellas County, Florida, as provided in Section _.1911.19 hereof.
(20) "Impact Fees" means those fees and charges levied and imposed by the
City, Pinellas County and any other governmental entity on projects located on the Site
for certain facilities and services impacted by development such as the Project.
(21) "Permits" means all zoning, variances, approvals and consents required to
be granted, awarded, issued, or given by any governmental authority in order for
construction of the Project, or any part thereof, to commence, continue, be completed or
allow occupancy and use, but does not include the Building Permit.
(22) "Plan" means the community redevelopment plan for the Area, including
the Site, as adopted by the City Council on _" by enactment of its
Ordinance No. , and including any amendments to the Plan.
(23) "Project" means the Waters Edge Project.
(24) "Project Plans and Specifications" means the plans and specifications
pertaining to the construction, installation and equipping of the Waters Edge Project,
including the schedule for completing the Project, consisting of the plans and
specifications.
(25) "Project Professionals" means any architects, attorneys, brokers,
engineers, consultants, planners, construction managers or any other persons, or
combination thereof, retained or employed by the Developer in connection with the
planning, design, construction, permit applications, completion and opening of the
Project, but does not include the Developer.
(28) "Sidewalk and Site Improvements" means construction of public
sidewalks, including but not limited to sidewalks, site furnishings, landscaping, public art
and sidewalk material finishes to be located on the Site and adjacent public right-of-way
as provided in the Sidewalk and Site Improvementlmprovements Plan described
mattached as Exhibit GO.
(29) "Site" means that certain property with a street address of 331 Cleveland
Street, located in Clearwater, Florida, as more particularly described on Exhibit A
attached hereto, on which the Waters Edge Project is to be located.
(30) "Site Plan" means the depiction and description of the Project on the Site,
as approved by the initial version ofCity of Clearwater Community Development Board
("COB"), and which is attached hereto as Exhibit B.
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(31) "Termination Date" means the date on which this Agreement is terminated
by any party hereto as provided in Section _.05,9.05, 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 -iQ hereof.
(33) "Waters Edge Project" means the development comprised of not more
than 157 residential condominium units and appurtenant facilities, approximately 310
private parking spaces, not more than 10,600 square foot of ground level Allowable
Retail Uses, and Sidewalk and Site 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 157 residential condominium units,
approximately 310 private parking spaces, not more than 10,600 square foot of ground
level Allowable Retail Uses, and Sidewalk and Site Improvements.
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(2) As provided in this Agreement, the Agency shall undertake certain
public actions pursuant to the Act and as implementation of the Plan, and provide
assistance in obtaining such approvals by governmental authorities as are necessary
for development of the Project.
(c) As provided in this Agreement, the Developer shall carry out the
redevelopment of the Site by obtaining approvals by governmental authorities
necessary for development of the Project, and constructing various private
improvements on the Site.
2.02. Developer's Proposal. The redevelopment of the Site, specifically
including the design, construction, equipping, completion and use of the Project, and
each component thereof, is hereby found by the Agency and acknowledged by the
Developer: (1) to be consistent with and in furtherance of the objectives of the Plan, (2)
to conform to the provisions of the Act, (3) to be in the best interests of the citizens of
the City, (4) to further the purposes and objectives of the Agency, and (5) to further the
public purpose of eradicating conditions of blight in the Area. The parties recognize
and agree that during the process of review and approval provided for in the Agreement
the design of the Project may be subject to change and modification as may be either
agreed to by the parties or required as provided herein or by the appropriate regulatory
authority, and should any changes be necessary or desirable the parties agree that they
will act expeditiously and reasonably in reviewing and approving or disapproving any
changes or modifications to the Project.
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
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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 of
William R. West of Opus South Development, L.L.C.
(d) The Agency does hereby notify the Developer that its initial Authorized
Representative is Rod Irwin, Executive Director of the CRA.
ARTICLE 3. LAND USE REGULATION.
3.01. ZoninQ. On the Effective Date, the zoning classification for the Site is
"Downtown District", abbreviated as "D." The parties recognize and acknowledge that
the zoning classification of the Site as of the Effective Date, as well as the Flexible
Development Approval issued by the Community Development Board (CDB) on August
16, 2005, perm its development of the Project.
3.02. Redevelopment Plan. The Agency represents to the Developer and the
Developer acknowledges that as of the Effective Date, the provisions of the Plan
pertaining to the Site were consistent with the Waters Edge 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 impact" 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.
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(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 --:-G43.04 do not affect
the Agency's or the City's right, duty, obligation, authority and power to act in its
governmental or regulatory capacity in accordance with applicable laws, ordinances,
codes or other building or project regulation.
(d) Notwithstanding any other provisions of this Agreement, any required
permitting, licensing or other regulatory approvals by the Agency or the City shall be
subject to the established procedures and requirements of the Agency or the City with
respect to review and permitting of a project of a similar or comparable nature, size and
scope. In no event shall the Agency or the City, due to any provision of this Agreement,
be obligated to take any action concerning regulatory approvals except through its
established processes and in accordance with applicable provisions of law.
3.05. Concurrency.
(a) The parties hereto recognize and acknowledge that Florida law
(specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative
Code, collectively the "Growth Management Act") impose restrictions on development if
adequate public improvements are not available concurrently with that development to
absorb and handle the demand on public services caused by that development. The
City has created and implemented a system for monitoring the effects of development
on public services within the City. The Developer recognizes and acknowledges it must
satisfy the concurrency requirements of Florida law as applied to the Project.
Specifically, the Developer covenants and agrees to comply with the City's land
development code, including providing to the City any and all data and analysis that
shows the Project will be consistent with the goals, objectives and policies of the
comprehensive plan for the City, adopted by the City and in effect on the Effective Date,
and the Developer further covenants and agrees to comply with concurrency
certification provisions of the City's land development code.
(b) The Agency represents and warrants and the Developer acknowledges
that as of the Effective Date the Project as contemplated by this Agreement does not
require any reservation of capacity or to seek any approvals as a result of the
concurrency requirements described in subsection (a). If legally obligated in the future
to comply with such requirements, the Developer agrees to seek issuance of a
concurrency compliance certificate or other similar document by whatever name known
and a reservation of services capacity under the City's concurrency management
system, and does further agree to maintain such certificate and reservation. The
Developer covenants and agrees with the Agency not to undertake any action, or fail to
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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 157 residential condominium
dwelling units and associated amenities.
(b) The Project shall have approximately 310 private parking spaces.
(c) The project shall contain approximately 10,600 square feet of Allowable
Retail Uses on the first floor.
(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 above. However, should the Developer be unable to obtain an allowable
retail use within one year of issuance of a Certificate of Occupancy for the retail space,
the City may allow, upon written request of the Developer, one or more Alternative
Retail Uses to occupy the first floor retail space.
(e) Provided however, the following uses are prohibited:
1. All uses prohibited by the Clearwater Downtown Redevelopment
Plan;
2. All other retail uses not specifically defined herein as Allowable
Retail Uses or Alternative Retail Uses, pursuant to the Community
Development Code's definition of retail sales and services;
3. Nightclub or bar;
4. Alcoholic beverage package store;
5. Medical or veterinary offices.
ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS.
4.01. Site Plan.
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(a) The Developer has prepared and received approval from the CDB of a
preliminary Site Plan, a copy of which is attached hereto as Exhibit WB, that
contemplates development of the Project consistent with this Agreement. The
Developer agrees that during the term of this Agreement any material changes to the
preliminary Site Plan or any subsequent versions of the Site Plan will be submitted to
the 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 approved 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, shall not be considered a Building Permit for
purposes of this Agreement.
5.02. Construction of the Project.
(a) (1) The Developer shall construct the Project on the Site substantially
in accordance with the Project Plans and Specifications therefor. Subject to
Unavoidable Delay and the terms and conditions in this Agreement, the Developer shall
commence construction of the Project by August 2006.
(2) For purposes of this Section _.02,5.02, "commence construction"
of the Project means commencement of meaningful physical development of that part of
the Project as authorized by the Building Permit, which shall include construction
pursuant to a foundation permit, which is continued and prosecuted with reasonable
diligence toward and with the objective of completion of the Project.
(b) (1) After the Commencement Date, the Developer shall continue,
pursue and prosecute the construction of the Project with reasonable diligence to
completion by the Completion Date and shall not at any time actually or effectively have
abandoned (or its Contractor having actually or effectively abandoned) the Site. For
purposes of this subsection (b), "abandoned" means to have ceased any construction
work which effectively advances the construction of the Project toward completion. The
Developer shall complete construction of the Project no later than three (3) years from
the Commencement Date.
(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
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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 _.02,5.02, "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 governmental or
regulatory powers or authority by the City or any other governmental entity or to enlarge
its regulatory authority.
5.04. Completion Certificate.
(a) (1) Upon the substantial completion of the construction of the Project in
accordance with the provisions of this Article _,~ the Developer shall prepare and
execute the Completion Certificate, the form of which is attached hereto as Exhibit C,
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
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responsibilities of the City or any other governmental entity acting in its regulatory or
governmental capacity or an approval of said construction for purposes of the issuance
of a certificate of occupancy for the Project.
(3) The parties agree that it is their intent that the review by the Agency
for purposes of the Completion Certificate determination pursuant to this Section
~5.04 is not to be an additional or duplicate inspection over and above that required
for purposes of the Building Permit, including the issuance of a certificate of occupancy.
The Agency agrees that for purposes of determining if the Project has been
substantially completed in accordance with the Project Plans and Specifications, the
issuance of a certificate of occupancy for the Project shall be a conclusive determ ination
of substantial completion for purposes of this subsection (a) and, if such certificate has
been determined to have been issued, then the Agency agrees to execute the
Completion Certificate.
(b) (1) If the Agency shall refuse or fail to execute the Completion
Certificate after receipt of a request by the Developer to do so, then the Agency shall,
within ten (10) days after its receipt of such request, provide the Developer with a
written statement setting forth in reasonable detail the reason(s) why the Agency has
not executed the Completion Certificate and what must be done by the Developer to
satisfy such objections so that the Agency would sign the certificate. Upon the
Developer satisfying the Agency's objections, then the Developer shall submit a new
request to the Agency for execution of the Completion Certificate and that request shall
be considered and acted upon in accordance with the procedures in paragraph (a)(1)
for the original request.
(c) The Completion Certificate shall be in a form sufficient to be recorded in
the public records of Pinellas County, Florida. After execution by the Agency, it shall be
promptly returned to the Developer who shall record the certificate in the public records
of Pinellas County, Florida, and pay the cost of such recording.
5.05. AQency Not in Privity with Contractors. The Agency shall not be
deemed to be in privity of contract with any Contractor or provider of goods or services
with respect to the construction of any part of the Project.
ARTICLE 6. REIMBURSEMENTS BY AGENCY.
6.01. Reimbursement of Impact Fees. Following execution and recordation of
the Completion Certificate and upon payment by the Developer of ad valorem taxes for
the Project, the Agency shall reimburse the Developer in a total amount not to exceed
$535,000 for Impact Fees paid by the Developer for the Project in accordance with
Section 6.03 hereof.
6.02 Reimbursement of Sidewalk and Site Improvements. Following
execution and recordation of the Completion Certificate and upon payment by the
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Developer of ad valorem taxes for the Project, the Agency shall reimburse the
Developer in;;tQ~QQ[g~~;mQsLYI{jlb~~~~S~~QliQn~~~LQ3~~~~bJ~[~Qf~a total amount not to exceed
$500,000 for Sidewalk and Site Improvements constructed by the Developer as
provided in the Sidewalk and Site Improvements Plan attached hereto as Exhibit D,
and as part of the Project in accordance "^lith Section 6.03 hereof.
6.03 Reimbursement Requirements and Process. Upon execution and
recordation of the Completion Certificate, the Developer shall provide the Agency with
documentation verifying both the amount and payment of Impact Fees for the Project by
the Developer and the Developer's expenditures for the Sidewalk and Site
Improvements. Within thirty (30) days after receipt of such documentation, the Agency
shall acknowledge in writing to the Developer the amount of: a) the Impact Fees to be
reimbursed to the Developer (as set forth in the submitted documentation, but not to
exceed $535,000.00, as provided in Section 6.01 hereof); and b) the cost of the
Sidewalk and Site Improvements constructed by the Developer to be reimbursed to the
Developer (as set forth in the submitted documentation, not to exceed $500,000.00, as
provided in Section 6.02 hereof). The total amount of Impact Fees and the construction
costs for the Sidewalk and Street Improvements to be reimbursed by the Agency to the
Developer (subject to the foregoing monetary limitations and as confirmed in writing by
the Agency after documentation thereof by the Developer) is hereinafter referred to as
the "Total Reimbursement Due Developer".
The Total Reimbursement Due Developer shall be made by the Agency to the
Developer, after the issuance of the Certificate of Completion, in accordance with the
following:
a) Within sixty (60) days after the Developer has paid its annual ad valorem
taxes due in connection with the Project (the "Project's Annual Ad Valorem
Taxes"), the Agency shall pay Developer the lesser of the amount necessary to
satisfy the Total Reimbursement Due Developer, or fifty percent (50%) of the
increment of the Project's Annual Ad Valorem Taxes that are paid to the City of
Clearwater and/or the Agency that year (the "50% of the City of Clearwater's and
Agency's Tax Increment" or the "Annual Reimbursement"); and
b) If the first Annual Reimbursement CI-e-i.e., 50% of the City of Clearwater's
and Agency's Tax Increment) is not sufficient to satisfy the Total Reimbursement
Due Developer, then the Annual Reimbursement shall be continued in
accordance with Section 6.03(a) above for up to three (3) additional years (for a
maximum total of four (4) years after recordation of the Certificate of Completion)
until the Agency has paid to the Developer the Total Reimbursement Due
Developer hereunder; and
c) Notwithstanding any provision herein to the contrary, it is understood and
agreed that: i) the total amount paid by the Agency to the Developer pursuant to
the terms hereof shall not exceed the Total Reimbursement Due Developer; and
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b) the Agency shall only be required to make payments to the Developer in
accordance with this Section 6.03 for a maximum of four (4) years after
recordation of the Certificate of Completion.
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 Delaware limited liability company duly organized and
validly existing under the laws of the State of Florida, has all requisite power and
authority to carryon its business as now conducted, to own or hold its properties and to
enter into and perform its obligations hereunder and under each document or
instrument contemplated by this Agreement to which it is or will be a party, is qualified to
do business in the State of Florida, and has consented to service of process upon a
designated agent for service of process in the State of Florida.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required
by this Agreement to which Developer is or will be a party have been duly authorized by
all necessary action on the part of, and have been or will be duly executed and
delivered by, the Developer, and neither the execution and delivery thereof, nor
compliance with the terms and provisions thereof or hereof: (1) requires the approval
and consent of any other party, except such as have been duly obtained or as are
specifically noted herein, (2) contravenes any existing law, judgment, governmental
rule, regulation or order applicable to or binding on the Developer, (3) contravenes or
results in any breach of, default under or, other than as contemplated by this
Agreement, results in the creation of any lien or encumbrance upon any property of the
Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement,
the Developer's articles of organization, or, any other agreement or instrument to which
the Developer is a party or by which the Developer may be bound.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required
by this Agreement to which the Developer is or will be a party constitutes, or when
entered into will constitute, a legal, valid and binding obligation of the Developer
enforceable against the Developer in accordance with the terms thereof, except as such
enforceability may be limited by applicable bankruptcy, insolvency or similar laws from
time to time in effect which affect creditors' rights generally and subject to usual
equitable principles in the event that equitable remedies are involved.
14
(d) There are no pending or, to the knowledge of the Developer, threatened
actions or proceedings before any court or administrative agency against the Developer,
or against any controlling manager, member, employee or agent of the Developer,
which question the validity of this Agreement or any document contemplated hereunder,
or which are likely in any case, or in the aggregate, to materially adversely affect the
consummation of the transactions contemplated hereunder or the financial condition of
the Developer.
(e) The Developer has filed or caused to be filed all federal, state, local and
foreign tax returns, if any, which were required to be filed by the Developer, and has
paid, or caused to be paid, all taxes shown to be due and payable on such returns or on
any assessments levied against the Developer.
(f) All financial information and other documentation, including that pertaining
to the Project or the Developer, delivered by the Developer to the City and the Agency,
was, on the date of delivery thereof, true and correct.
(g) The principal place of business and principal executive offices of the
Developer are in Tampa, Florida
and, until the expiration or termination of this Agreement, the Developer will keep
original or duplicate records concerning the Project (such as construction contracts,
financing documents and corporate documents) and all contracts, licenses and similar
rights relating thereto at 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.
15
(c) Subsequent to the Effective Date, the Developer shall maintain its
financial capability to develop, construct and complete the Project and shall promptly
notify the Agency of any event, condition, occurrence, or change in its financial
condition which materially adversely affects, or with the passage of time is likely to
adversely affect, the Developer's financial capability to successfully and completely
develop, construct and complete the Project as contemplated hereby.
(d) The Developer shall promptly cause to be filed when due all federal, state,
local and foreign tax returns required to be filed by it, and shall promptly pay when due
any tax required thereby so as to avoid an uncured tax lien against the Site.
(e) Subject to and except as permitted by Section _.01,11.01, prior to the
expiration or termination of this Agreement, the Developer shall maintain its existence,
will not dissolve or substantially dissolve all of its assets and will not consolidate with or
merge into another limited liability company, corporation, limited partnership, or other
entity without the prior approval of the Agency, unless the Developer is the surviving
entity or retains a controlling interest in the consolidated or merged entity, in which case
no consent by Agency shall be required. In any event, prior to the expiration or
termination of this Agreement, the Developer, will promptly notify the Agency of any
changes to the existence or form of the corporation of Developer.
(f) The Developer shall not sell, lease, transfer or otherwise dispose of all or
substantially all its assets without adequate consideration and will otherwise take no
action which shall have the effect, singularly or in the aggregate, of rendering Developer
unable to continue to observe and perform the covenants, agreements, and conditions
hereof and the performance of all other obligations required by this Agreement.
(g) Provided all conditions precedent thereto have been satisfied or waived as
provided herein, the Developer shall design, construct and complete the Project such
that it is substantially complete as provided in this Agreement no later than the
Completion Date.
7.03 Covenant: Nondiscrimination. The Developer covenants by and for
itself and any successors in interest that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
sex, marital status, ancestry or national origin in the marketing, sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the site, nor shall the 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.
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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 carryon its business as now
conducted and to perform its obligations hereunder and under each document or
instrument contemplated by this Agreement to which it is or will be a party.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required
by this Agreement to which the Agency is or will be a party have been duly authorized
by all necessary action on the part of, and have been or will be duly executed and
delivered by, the Agency, and neither the execution and delivery thereof, nor
compliance with the terms and provisions thereof or hereof (1) requires the approval
and consent of any other party, except such as have been duly obtained or as are
specifically noted herein, (2) contravenes any existing law, judgment, governmental
rule, regulation or order applicable to or binding on the Agency, (3) contravenes or
results in any breach of, or default under or, other than as contemplated by this
Agreement, results in the creation of any lien or encumbrance upon any property of the
Agency under any indenture, mortgage, deed of trust, bank loan or credit agreement,
applicable ordinances, resolutions or, on the date of this Agreement, any other
agreement or instrument to which the Agency is a party, specifically including any
covenants of any bonds, notes, or other forms of indebtedness of the Agency
outstanding on the Effective Date.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required
by this Agreement to which the Agency is or will be a party constitute, or when entered
into will constitute, legal, valid and binding obligations of the Agency enforceable
against the Agency in accordance with the terms thereof, except as such enforceability
may be limited by public policy or applicable bankruptcy, insolvency or similar laws from
time to time in effect which affect creditors' rights generally and subject to usual
equitable principles in the event that equitable remedies are involved.
(d) There are no pending or threatened actions or proceedings before any
court or administrative agency against the Agency, or against any officer of the Agency,
which question the validity of any document contemplated hereunder, or which are likely
in any case, or in the aggregate, to materially adversely affect the consummation of the
transactions contemplated hereunder or the financial condition of the Agency.
17
8.02. Covenants. The Agency covenants with the Developer that until the
earlier of the Termination Date or the Expiration Date:
(a) The Agency shall timely perform or cause to be performed all of the
obligations contained herein which are the responsibility of the Agency to perform.
(b) During each year that this Agreement and the obligations of the Agency
under this Agreement shall be in effect, the Agency shall cause to be executed and to
continue to be in effect those instruments, documents, certificates, permits, licenses and
approvals, and shall cause to occur those events contemplated by this Agreement that
are applicable to and are the responsibility of the Agency.
(c) The Agency shall assist and cooperate with the Developer to accomplish
the development of the Project in accordance with this Agreement and the Project Plans
and Specifications, will carry out its duties and responsibilities contemplated by this
Agreement, and will not violate any laws, ordinances, rules, regulations, orders,
contracts, or agreements that are or will be applicable thereto, and, to the extent
permitted by law, the Agency will not enact or adopt or urge or encourage the adoption
of any ordinances, resolutions, rules, regulations or orders or approve or enter into any
contracts or agreements, including issuing any bonds, notes, or other forms of
indebtedness, that will result in any provision of this Agreement to be in violation
thereof.
(d) The Agency shall maintain its financial capability to carry out its
responsibilities as contemplated by this Agreement and shall notify the Developer of any
event, condition, occurrence, or change in its financial condition which adversely affects,
or with the passage of time is likely to adversely affect, the Agency's financial capability
to carry out its responsibilities contemplated hereby.
ARTICLE 9. DEFAULT; TERMINATION.
9.01. Default by Developer.
(a) Provided the Agency is not then in default of this Agreement under
Section ~9.02 hereof, there shall be an "event of default" by the Developer upon the
occurrence of anyone 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
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(2) The Developer shall make a general assignment for the benefit of
its creditors, or shall admit in writing its inability to pay its debts as they become due or
shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall
file a petition seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute, law or
regulation or shall file an answer admitting, or shall fail reasonably to contest, the
material allegations of a petition filed against it in any such proceeding, or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the
Developer or any material part of such entity's properties; or
(3) Within sixty (60) days after the commencement of any proceeding
by or against the Developer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceeding shall not have been dismissed or otherwise
terminated, or if, within sixty (60) days after the appointment without the consent or
acquiescence of the Developer of any trustee, receiver or liquidator of any of such
entities or of any material part of any of such entity's properties, such appointment shall
not have been vacated.
(b) (1) If an event of default by the Developer described in subsection (a)
above shall occur, the Agency shall provide written notice thereof to the Developer, and,
if such event of default shall not be cured by the Developer within thirty (30) days after
receipt of the written notice from the Agency specifying in reasonable detail the event of
default by the Developer, or if such event of default is of such nature that it cannot be
completely cured within such time period, then if the Agency is not then in default of this
Agreement and the Developer shall not have commenced to cure such default within
such thirty (30) day period and shall not diligently prosecute such cure to completion
within such reasonable longer period of time as may be necessary then, in addition to
any remedy available under Section _.03,9.03, 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.
(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.
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(d) In the event of a termination of this Agreement pursuant to this Section
_.01,9.01, the Agency shall not be obligated to make or to continue to make any
payments of reimbursements for Impact Fees or Sidewalk and Site Improvements.
9.02. Default by the AQency.
(a) Provided the Developer is not then in default under Section _.01,9.01,
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 -------:G49.01 hereof will not constitute an event of default by the
Agency under this subsection (a).
(b) If an event of default by the Agency described in subsection (a) shall
occur, the Developer shall provide written notice thereof to the Agency, and, after
expiration of the curative period described in paragraph (c) below, may terminate this
Agreement, institute an action to compel specific performance of the terms hereof by
the Agency or pursue any and all legal or equitable remedies to which the Developer is
entitled; provided, however, if the event of default by the Agency occurs on or prior to
the Commencement Date, any monetary recovery by the Developer in any such action
shall not include any lost profits or consequential damages and shall be limited to bona
fide third-party out-of-pocket costs and expenses, including reasonable attorneys' fees,
incurred by the Developer in connection with the negotiation of this Agreement as well
as any investigation, due diligence, development, design or construction costs incurred
by the Developer in connection with the proposed acquisition and development of the
Site, unless any such default by the Agency was willful and committed in bad faith with
reckless disregard for the rights of the Developer.
(c) The Developer may not terminate this Agreement or institute an action
described in paragraph (b) above if the Agency cures such event of default within thirty
(30) days after receipt by the Agency of written notice from the Developer specifying in
reasonable detail the event of default by the Agency, or if any such event of default is of
such nature that it cannot be completely cured within such period, then within such
reasonably longer period of time as may be necessary to cure such default, provided
however, if the Agency is proceeding diligently and in good faith, the curative period
shall be extended for a period of not exceeding an aggregate of thirty (30) days without
any approval or consent of the Developer being required, but such approval will be
required (and shall be given or withheld in Developer's sole discretion) if the curative
period is to be extended beyond thirty (30) days after the notice of default has been
given by the Developer to the Agency if the Agency has commenced to cure such
default within such thirty (30) day period and is diligently prosecuting such curative
action to completion. The Agency shall within said thirty (30) day period or such longer
period promptly, diligently and in good faith proceed to cure such event of default after
receipt of the notice from the Developer and shall succeed in curing such event of
20
default within said period of time, provided, however, if the Agency shall fail to cure such
event of default within said thirty (30) day or longer period or ceases to proceed
diligently to timely cure such event of default, then the Developer may proceed with its
available remedies without providing any additional notice to the Agency.
(d) Any attempt by the Developer to pursue any of the remedies referred to in
paragraphs (a), (b), or (c) above will not be deemed an exclusive election of remedy or
waiver of the Developer's right to pursue any other remedy to which it might be entitled.
(e) Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if such event
affects the Developer's or Agency's ability to perform by such deadline or the expiration
of such period.
9.03. 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 AQreement. 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
21
shall not constitute an event of default by any party under this Article _,.9., but may be
the basis for a termination of this Agreement as provided in this Section _.05.9.05.
(b) In addition to any other rights of termination provided elsewhere in this
Agreement, this Agreement may be terminated as provided in subsection (c) after the
occurrence of any of the following events or conditions:
(1) All of the Site is taken by the exercise of the power of eminent
domain by a governmental authority (except the City or the Agency) or a person entitled
to exercise such power or benefiting therefrom, or such part of the Site is taken by the
power of eminent domain so as to render the Project commercially unfeasible or
unusable for its intended uses as contemplated by this Agreement;
(2) The appropriate governmental authority (but not including the City
in exercise of its governmental and regulatory authority and responsibility), upon petition
by the Developer, unduly delays or denies or fails to issue the Permits, issue the
Building Permits, or approve any other land use approval necessary to commence
construction of the Project on the Site;
(3) A moratorium on new construction is imposed by a governmental
authority within the City or Pinellas County so as to prevent construction of the Project
to commence;
(4) The City or other appropriate governmental authority has issued a
concurrency compliance certificate or a reservation of services capacity as described in
Section -:-Ga3.05 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.
(6) Utilities are not readily available at the boundaries of the Site at
locations satisfactory to the Developer by the Closing Date.
(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,
22
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(e~), 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 for any reason prior to the
Expiration Date, each of the parties hereto do covenant and agree with each other to
promptly execute a certificate prepared by the party electing to terminate this
Agreement, which certificate shall expressly state that this Agreement has been
terminated in accordance with its terms, is no longer of any force and effect except for
those provisions hereof which expressly survive termination, that the rights, duties and
obligations of the parties hereto have been terminated and released (subject to those
surviving provisions hereof) and that the Site is no longer subject to any restrictions,
limitations or encumbrances imposed by this Agreement.
(b) The certificate described in subsection (a) shall be prepared in a form
suitable for recording and promptly after execution by all of the parties hereto shall be
recorded in the public records of Pinellas County, Florida. The cost of recording the
termination certificate shall be paid by the terminating party.
9.07 Remedies. All remedies provided for herein and under Florida law shall
be cumulative and shall survive the technical termination of this Agreement pursuant to
execution, delivery and recordation of a Termination Certificate or otherwise hereunder.
ARTICLE 10.
UNAVOIDABLE DELAY.
10.01. Unavoidable Delay.
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(a) Any delay in performance of or inability to perform any obligation under
this Agreement (other than an obligation to pay money) due to any event or condition
described in paragraph (2) as an event of "Unavoidable Delay" shall be excused in the
manner provided in this Section _.01.10.01.
(b) "Unavoidable Delay" means any of the following events or conditions or
any combination thereof: acts of God, acts of the public enemy, riot, insurrection,
terrorist attack, war, pestilence, archaeological excavations required by law,
unavailability of materials after timely ordering of same, epidemics, quarantine
restrictions, freight embargoes, fire, lightning, hurricanes, earthquakes, tornadoes,
floods, extremely abnormal and excessively inclement weather (as indicated by the
records of the local weather bureau for a five-year period preceding the Effective Date),
strikes or labor disturbances, delays due to proceedings under Chapters 73 and 74,
Florida Statutes, restoration in connection with any of the foregoing or any other cause
beyond the reasonable control of the party performing the obligation in question,
including, without limitation, such causes as may arise from the act of the other party to
this Agreement, or acts of any governmental authority (except that acts of the Agency
shall not constitute an Unavoidable Delay with respect to performance by the Agency).
(c) An application by any party hereto (referred to in this paragraph (c) and in
paragraph (d) as the "Applicant") for an extension of time pursuant to subsection (a)
must be in writing, must set forth in detail the reasons and causes of delay, and must be
filed with the other party to this Agreement within thirty (30) days following the
occurrence of the event or condition causing the Unavoidable Delay or thirty (30) days
following the Applicant becoming aware (or with the exercise of reasonable diligence
should have become aware) of such occurrence.
(d) The Applicant shall be entitled to an extension of time for an Unavoidable
Delay only for the number of days of delay due solely to the occurrence of the event or
condition causing such Unavoidable Delay and only to the extent that any such
occurrence actually delays that party from proceeding with its rights, duties and
obligations under this Agreement affected by such occurrence.
ARTICLE 11.
MISCEllANEOUS.
11.01. AssiQnments.
(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
24
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
_.01,11.01, 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 ---:-G4-11.01 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 otherwise be specifically provided
herein.
11.03. Notices.
(a) All notices, demands, requests for approvals or other communications
given by either party to another shall be in writing, and shall be sent by registered or
certified mail, postage prepaid, return receipt requested or by overnight courier service,
or by hand delivery to the office for each party indicated below and addressed as
follows:
To the Developer: To the /\gency:Opus South Development, L.L.C.
4200 West Cypress St.
Suite 444
Tampa, FL 33607
Attention: William R. West
25
with copies to:
Jerry Shaw
4200 West Cypress St.
Suite 444
Tampa, FL 33607
Barry Greenfield
4200 West Cypress St.
Suite 444
Tampa, FL 33607
Hill, Ward & Henderson, P.A.
Bank of America Plaza, Suite 3700
101 East Kennedy Boulevard
Tampa, FL 33602
Attn: R. James Robbins, Jr., Esq.
To the Agency: Community Redevelopment Agency of
the City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756Attention:
Attention: Rod Irwin
with copies to:
'Nith copies to:
City of Clearwater
112 S. Osceola
Avenue
Clearwater, FL
33756
Attention: City
Attorney
(b) Notices given by courier service or by hand delivery shall be effective
upon 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 _.03.11.03. 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.
26
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.
(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 between it and
the Agency arising out of or relating to this Agreement and such service shall be made
as provided by the laws of the State of Florida for service upon a non-resident;
provided, however, that at the time of service on the Florida Secretary of State, a copy
of such service shall be delivered to the Developer at the address for notices as
provided in Section _.03.11.03.
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.
27
11.08. Estoppel Certificates. The Developer and the Agency shall at any time
and from time to time, upon not less than ten (10) days prior notice by another party
hereto, execute, acknowledge and deliver to the other parties a statement in recordable
form certifying that this Agreement has not been modified and is in full force and effect
(or if there have been modifications that the said Agreement as modified is in full force
and effect and setting forth a notation of such modifications), and that to the knowledge
of such party, neither it nor any other party is then in default hereof (or if another party is
then in default hereof, stating the nature and details of such default), it being intended
that any such statement delivered pursuant to this Section -:-0011.08 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.
(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.
28
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 short form
"Memorandum of Agreement for Development and Disposition of PropertyAgreement,"
the form of which is attached hereto as Exhibit D-E, 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 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: Survey Corrections. In the event that due to
minor inaccuracies contained herein or any Exhibit attached hereto or any other
agreement contemplated hereby, or due to changes resulting from technical matters
arising during the term of this Agreement, the parties agree that amendments to this
Agreement required due to such inaccuracies, unforeseen events or circumstances
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
29
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 _.05,9.05, the term of this
Agreement shall expire and this Agreement shall no longer be of any force and effect
(except for those matters which specifically survive such expiration) on the tenth (10th)
anniversary of the Effective Date.
(b) Upon completion of the term of this Agreement, all parties hereto shall
execute the Agreement Expiration Certificate, the form of which is attached hereto as
Exhibit F. The Agreement Expiration Certificate shall constitute (and it shall be so
provided in the certificate) a conclusive determination of satisfactory completion of all
obligations hereunder and the expiration of this Agreement.
(c) The Agreement Expiration Certificate shall be in such form as will enable it
to be recorded in the public records of Pinellas County, Florida. Following execution by
all of the parties hereto, the Agreement Expiration Certificate shall promptly be recorded
by the Developer in the public records of Pinellas County, Florida, and the Developer
shall pay the cost of such recording.
11.20. Effective Date. Following execution of this Agreement (and such of the
Exhibits as are contemplated to be executed simultaneously with this Agreement) by the
authorized officers of the Agency and by authorized representatives of the Developer
following approval hereof by the Agency and the Developer, this Agreement (and any
executed Exhibits) shall be in full force and effect in accordance with its terms and upon
the recording of the Memorandum of Development Agreement as contemplated by
Section ~ 11 .15 hereof.
[SIGNATURE PAGES FOllOW]
30
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of this day of , 200 .
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF CLEARWATER, FLORIDA
By:
, Chairperson
Approved as to form:
ATTEST:
By:
Pamela K. Akin, City Attorney
Cynthia E. Goudeau, City Clerk
By:
Print Name:
Signed, sealed and delivered
OPUS SOUTH DEVELOPMENT, L.L.C.,
a Delavlare limited liability company
8y7
, its
ATTEST:
in the presence of:
By:
Print Name:
, as
Print Name:
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
31
The foregoing instrument was acknowledged before me this --== day of
200_, by
President/CEO and Secretary, respectively of Opus South Development, L.L.C., a Delaware
limited liability company, on behalf of such limited liability company. They are
,Chairperson of the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY
OF CLEARWATER, a public body corporate and politic of the State of Florida, on behalf of
the Agencv. He is personally known to me or iliwehas produced a valid driver~) license as
identification.
(SEAL)
Printed/Typed Name:
Notary Public-;State of Florida
Commission Number:
G:\RJR\OPUS\Cl.L Vl.RY R^.PTIST CHURCH\ DEVELOPMENT l.GREEMENT\ DEVELOPMENT l.GREEMENT 1 11 06.DOC
32
EXHIBIT A.
33
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this dav of
, 200 , bv , of OPUS SOUTH
DEVELOPMENT, L.L.c., a Delaware limited liability company, on behalf of the limited
liability company. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
LECA.L DESCRIPTION
Printed/Tvoed Name:
Notary Public-State of Florida
Commission Number:
[TO BE FUR..c~ISHED]
G:IRJRIOPUSICalvil1J1 Baptist ChurchlDevelol'ment A.Efeementl Waters Ec!ge DevelojJment Agreement 12-1-06.1.doc
34
LIST OF EXHIBITS
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
Legal Description
Site Plan Approved bv CDB
Special '1'1 arranty DeedCompletion Certificate
Mcmorandum of Agrccmcnt for Dcvclopmcnt and Disposition of
EXHIBIT E
L^..greement Expiration Certificate
Sidewalk and Site Improvements Plan
Memorandum of Development Agreement
.A..gr~~!ll~nl:f;~.]imj:iQ!Lk~J:ti.fif;:!l~
EXHIBIT HE
EXHIBIT F
35
EXHIBIT A
Le!!al Descriotion
Parcel 6
Commence at the Northeast corner of Block A, John R. Davev Subdivision, as recorded in Plat
Book 1. Page 87 of the Public Records of Hillsborough County. Florida. of which Pinellas
County was formerly a part, and proceed S 01022' 45" E, along the Easterly line of said Block A,
43.12 feet to the Point of Beginning:
From said Point of Beginning proceed N 90000'00" W. 354.40 feet: said line being the South
right-of-wav line of Cleveland Street; thence S 00000'00" E, 174.82 feet; thence N 90000'00" E,
23.61 feet: thence S 01022'45" E. 56.00 feet: thence N 90000'00" E. 335.00 feet: thence N
01022' 45" W, 230.88 feet; said line being the West right-of-way line of Osceola Avenue to the
Point of Beginning.
36
EXHIBIT B
Site Plan ADD roved bv CDB
37
EXHIBIT C
Comoletion Certificate
This Completion Certificate ("Certificate") is made this dav of
200 ,by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
CLEARWATER, FLORIDA, a public bodv corporate and politic of the State of Florida (the
"Agency"). whose address is 112 S. Osceola Avenue. Clearwater. FL 33756. and OPUS
SOUTH DEVELOPMENT, L.L.C., a Delaware limited liability company (the "Developer"),
whose address is 4200 West Cvpress Street, Ste. 444, Tampa, FL 33607.
This Certificate pertains to a Development Agreement (Waters Edge Development) bv
and between the Agencv and the Developer. dated as of . 200 (the
"Development Agreement"), which provides, among other things, for the construction of the
Waters Edge Project as same is defined and provided in the Development Agreement.
As provided in Section 5.04 of the Development Agreement, the construction of the
Project has been completed substantially in accordance with the requirements of the
Development Agreement and such improvements are substantially complete. The parties hereto
acknowledge and agree that the Project has been so completed and have executed this
Certificate as conclusive determination of such completion and satisfaction of the Developer's
obligation under the Development Agreement' to construct the Project.
A copv of the fullv-executed Development Agreement is on file with the Citv Clerk, Citv
of Clearwater, Florida, located at Citv Hall, 112 S. Osceola Avenue, Clearwater, Florida; which
is available for review and copving bv the public.
rSIGNA TURE PAGES FOLLOWl
38
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
ATTEST:
Name rprintedl:
Title: Executive Director
Signed, sealed and delivered
in the presence of:
OPUS SOUTH DEVELOPMENT, L.L.c.
Print Name:
, as
Print Name:
(SEAL )
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this dav of
200 ,bv , Chairperson of the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER, a public body corporate and politic of the
State of Florida, on behalf of the Agencv. He is personallv known to me or has produced a
valid driver's license as identification.
(SEAL)
Printed/Tvped Name:
Notary Public-State of Florida
Commission Number:
39
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this dav of
, 200 , bv , of OPUS SOUTH
DEVELOPMENT, L.L.c., a Delaware limited liability company, on behalf of the limited
liability company. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printed/Tvped Name:
Notary Public-State of Florida
Commission Number:
40
EXHIBIT D
Sidewalk and Site Improvements Plan Approval
41
EXIDBIT D
.. ..tol... tlli.. a 1"."'8111: !t
"'l"l'nu'~'vln' i
I
SCOPE OF SIDEW4K
IMPROVEMENTS'
Illll(1l1111l
t. II ~
1111'11 n IIIIIIIIII-U i
I ~ I I II i i I . I ~
~
Hhl'Hw~~~wm~q ·
H~ nHa~hHUl~~U
;' i.ilP I~ I P~~ii
t 41 I I
~ _...1'8~lla.a..~s
1 JlI a i i q;,e4Inl=1I
l
1111I11I111111111
1111
JIJ
11I1 ! 111I f. 1I1l!
II
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~ni i;IHtual~
ill'l u ~I
! I I I
- ,
i. of"! or'-
lij II i!n i~i ~i ; ~~ ~~i
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II ;! ~!~I .;; II ~ RJ n~ ~
u ~i ~ill Ii~! ~ Ii ~~I i
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~. ~ ~~ ~~ ~ ~~I
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II
EXHIBIT D.l
1~f
" I
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I
PROPOSED PUBLIC AR~W:~ ] - - - - - I
EXHIBIT E
Memorandum of Development Agreement
[Waters Edge]
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 OPUS SOUTH DEVELOPMENT,
L.L.C., a Delaware limited liability company (the "Developer"), whose address is 4200
West Cypress Street, Ste. 444, Tampa, FL 33607.
This Certificate pertains to a Development Agreement (Waters Edge
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 Waters Edge 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.
[SIGNATURE PAGES FOLLOW]
42
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of the day of , 200
Name [printed]:
Title: Chairperson
ATTEST:
Sianed. sealed and delivered
in the presence of:
OPUS SOUTH DEVELOPMENT. L.L.C.
By:
Print Name:
, as
Print Name:
(SEAL )
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this dav of ,
200 ,bv , Chairperson of the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER, a public body corporate and politic of the
State of Florida, on behalf of the Agency. He is personally known to me or has produced a
valid driver's license as identification.
(SEAL)
Printed/Tvoed Name:
Notary Public-State of Florida
Commission Number:
43
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this dav of
, 200 , bv , of OPUS SOUTH
DEVELOPMENT, L.L.c., a Delaware limited liability company, on behalf of the limited
liability company. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printed/Tvped Name:
Notary Public-State of Florida
Commission Number:
44
EXHIBIT F
Agreement Expiration Certificate
[Waters Edge]
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 OPUS SOUTH DEVELOPMENT,
L.L.C., a Delaware limited liability company (the "Developer"), whose address is 4200
West Cypress Street, Ste. 444, Tampa, FL 33607.
This Certificate pertains to a Development Agreement (Waters Edge
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 Waters Edge 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 Waters
Edge site is no longer subject to any restriction, limitation, or encumbrance imposed by
the Development Agreement. This Certificate has been executed by the parties to the
Development Agreement as provided in Section 11.19 thereof and constitutes a
conclusive determination of satisfactory completion of all obligations under such
Development Agreement and that the Development Agreement has expired.
A copy of the fully-executed Development Agreement is on file with the City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue,
Clearwater, Florida, which is available for review and copying by the public.
[SIGNATURE PAGES FOLLOW]
45
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of the DAY OF , 200
Name [printed]:
Title: Chairperson
ATTEST:
Sianed. sealed and delivered
in the presence of:
OPUS SOUTH DEVELOPMENT. L.L.C.
By:
Print Name:
, as
Print Name:
(SEAL )
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this dav of ,
200 ,bv , Chairperson of the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER, a public body corporate and politic of the
State of Florida, on behalf of the Agency. He is personally known to me or has produced a
valid driver's license as identification.
(SEAL)
Printed/Tvoed Name:
Notary Public-State of Florida
Commission Number:
46
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this dav of
, 200 , bv , of OPUS SOUTH
DEVELOPMENT, L.L.c., a Delaware limited liability company, on behalf of the limited
liability company. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printed/Tvped Name:
Notary Public-State of Florida
Commission Number:
G:\RJR\OPUS\Calvary Baptist Church\Development Agreement\\.^oiaters Edge Development Agreement 9 5 06.doc
47
arison done b DeltaView on Frida , December 01, 2006 11 :35:41 AM
file:/IG:lRJR/OPUS/Calvary Baptist Church/Development
Document 1 Agreement/Waters Edge Development Agreement 9-5-06
(vers. 2).doc
file:/IG:lRJR/OPUS/Calvary Baptist Church/Development
Document 2 Agreement/Waters Edge Development Agreement 12-1-
06.1.doc
Rendering set Standard
Insertion
Deletion
Mffired..ffeffi~
Mov.edto
St Ie chan e
Format change
Inserted cell
Deleted cell
Moved cell
Split/Merged cell
Padding cell
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Deletions
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233
85
5
5
o
o
328
SUBJECT / RECOMMENDATION:
Clearwater Aqua Project Status Review
SUMMARY:
Community Redevelopment
Agency Agenda
Council Chambers - City Hall
Meeting Date: 12/12/2006
Review Approval: 1) Clerk
A' ~;~ y"{'-" '> I=\:~I ;'<, I
, , kt<s;;;s0\Y &~0";j/if.X;i
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November 3, 2006
Mr. Rod Irwin
Assistant City Manager
CITY OF CLEARWATER
112 S. Osceola Ave.
Clearwater, FL 33756
Re: FLD2005-08084 - 400 Cleveland Street (CW Acqua)
Project Status and Request for Assistance
Dear Rod,
On behalf of TH Management, LLC and its joint venture development partner, MLG Commercial, we would
again like to thank you, Bill, Pam, Michael, Mashid and Tracey for meeting with us last week to review the
status of the above project, and we once again extend our appreciation to your currently assigned staff for their
hard work and responsiveness throughout the development cycle of the project. We have now received the one
year extension of our CDB approval from Michael Delk, and we appreciate that as well.
During our presentation, we highlighted the extensive work and documentation produced for the project, and
illustrated the culmination of our efforts over the past year, which have cost in excess of $4 million. In
summary, we have completed the following since the approvals were granted by the CDB in November of
2005:
. 100% design development of the entire project, including the theater, with over 600 drawings and 3
detailed specification booklets.
. Complete geotechnical engineering, including preliminary pile tests.
. Complete wind tunnel testing for the structure and refmements to the structural design.
. Complete parking garage design, including meetings and input from City staff and consultants.
. Complete theater design, including input from the consultants and operators retained for the project.
. Complete coordination of floor plan development and publication of Sales plans.
. Marketing and collateral materials, web site development, etc.
. Detailed pricing and value engineering by two highly qualified contractors.
. Thorough market analysis and operational pro-formas have been developed for the theater development
(which identified need for destination retail to support the success of the theater).
. Extensive work has been performed by our consultants (and the CRA) with regard to TIF valuations.
During the presentation we also outlined the impacts in the real estate market and the significant increases in
construction pricing that have taken hold since the time our development workshops began in July 2004. These
changes, coupled with the complexity of the proposed theater construction, the quantity of parking, the cost of
the enormous beams needed to transfer structural loads from the residential tower grid to the parking garage
grid, the inefficient design parameters imposed by City parking garage codes, the double-ramping required in
order to isolate the public and private portions of the garage, and the need to retain high quality retail spaces
Commercial Development/Construction/Project Management Services
300 S. Orange Ave., Suite 1525, Orlando, FL 32801 ph: 321.206.3399 fax: 407.872.7334
A' ~;~ y"{'-" '> I=\:~I ;'<, I
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adjacent to the theater, have acted together to limit our ability to reduce costs and/or improve the design
efficiencies of the theater and City parking components of the project.
Consequently, in order to build the project as it is currently approved and designed, particularly considering the
current market factors and the economic (lending) climate, we would need to obtain a total of approximately
$27 million in cash and direct incentives ($18 million beyond what was contemplated previously) for
construction of the theater and City parking, in addition to a guaranty fully backed by the City or CRA for the
proposed theater lease revenues totaling $24.75 million.
We are hereby requesting the City's assistance with the project's aforementioned needs, and we respectfully
request that the City expedite its response to us, as time is of the essence. Should the potential for such
assistance exist, we are further requesting that they City validate its capacity to perform before we share our
private development pro-formas, consultant reports, or other sensitive information, although we understand
these documents may need to be provided in the event that the funds and commitments are made available.
Thank you, and please do not hesitate to contact us should you have any questions.
Sincerely,
RIEKER & ASSOCIATES, INC.
~~
Mark Rieker
President
Encl.
Cc: Bill Home, City Manager
Elias Jafif, TH Management, LLC
John O. Graham, MLG
Kevin Burke, Wiseman & Burke
Rhea Law, Fowler White
Mary Repper
Commercial Development/Construction/Project Management Services
300 S. Orange Ave., Suite 1525, Orlando, FL 32801 ph: 321.206.3399 fax: 407.872.7334
From: 95624257
Page: 1/1
Date: 11/8/2006 3: 17: 14 PM
.p~'~~~
.#~\Ab 01= rNt;;~~
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CITY OF
CLEARWATER
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
Cny HAu, 112 Soum OSCEOlA AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4040 FAX (727) 562"4052
CrlY MANAGER
SENT VIA EMAIL
November 8, 2006
Mr. Mark Rieker, President
Rieker and Associates, Inc.
300 So. Orange Avenue, Suite 1525
Orlando, FL 32801
RE: FLD1005-08404-400 Cleveland Street (CW Aqua)
Proj ect Status and Request for Assistance
Dear Mark:
This acknowledges receipt of your letter of November 3, 2006 concerning the above referenced. I
appreciate you sharing this information on the status of the project.
Mayor Hibbard has requested that your status report and request for assistance be scheduled for
discussion by the Community Redevelopment Agency (CRA) as soon as practical so that the CRA and
the City can respond to your request in tht:: most informed manner possible.
This is to advise you that the request has been scheduled for consideration at the December 12, 2006 CRA
meeting. The meeting will be held at 1:30 P. M. in the ClealWater City Council Chamber.
The Mayor has requested that the principals of the project be present at that meeting. The principals and
development team will be afforded the opportunity to expand on the points raised in your letter and CRA
members will have the opportunity to clarify their understanding of your project status and request.
Please confirm to me as soon as possible the availability of the principals and development team, so we
may formalize our December 12 agenda.
Again, thank you for your letter. We look forward to a discussion oftrus important project.
v~
Rod Irwin
eRA Executive Director
Cc:
CRA Board Members
William Home, City Manager
Pam Akin, Esq., City Attorney
Elias Jatif, TH Management, LLC
John o. Graham, MLG
Rhea Law, Esq., Fowler White
FRANK HIBBARD, MAYOR
BILL JONSON, VICE-MAYOR
HOYT HAMILTON, COUNClI.MEMBER
(i)
JOliN DORAN, COI.'t\CII"'lEMl.lER
CARLEN A. PETERSEN. COL'NCII"'IEMBER
"EQUAL EMrl.oYME"T AT'm AFFIRMATIVE ACTION EMPLOYEH"
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