NOTICE OF UNSAFE BUILDING - 1100 CLEVELAND STREET FORBEARANCE STIPULATION AND AGREEMENTCLEARWATER FIRE & RESCUE
Division of Fire Prevention Services
1140 Court St. Clearwater, FL 33756
Phone 562 -4327
NOTICE OF UNSAFE BUILDING —1100 CLEVELAND STREET
FORBEARANCE STIPULATION AND AGREEMENT
WHEREAS, the City of Clearwater (City) Fire Marshal (Marshal) on April 27,
2015 issued a Notice of Unsafe Building (Notice), attached, regarding property located
at 1100 Cleveland St., Clearwater, Florida, 33755 (Premises); and
WHEREAS, the Premises is owned by CLEARWATER ESPACIO DEV LLC CIO
CLEARWATER CENTRE LLC (Owner); and
WHEREAS, on June 2, 2015, the Building /Flood Board of Adjustment (Board)
denied Owner's appeal and affirmed the Notice ordering demolition, as detailed in its
order (Order), attached; and
WHEREAS, as of the drafting of this agreement, the Marshal has determined that
the Premises remains in violation of certain Fire Code sections concerning life safety
and is under threat of demolition, stayed pending litigation at Clearwater Espacio
Development, LLC v. City of Clearwater, Case No. 8:15 -cv- 01761- JDW -AEP, Middle
District of Florida (Federal Lawsuit); and
WHEREAS, INVESTORS' REALTY LTD., INC. is a prospective purchaser of the
Premises, and Buyer does not currently have a duty to bring the property into
compliance, but pursuant to the discretion of the Marshal, as the Authority Having
Jurisdiction pursuant to Fire Code, may have standing to request a forbearance and
eventual rescission of the Notice ordering demolition of the Premises; and
WHEREAS, it is the intention of the Marshal, Owner, and Buyer (Parties) to
reach a stipulated agreement in an effort to effectuate Owner's sale of the Premises to
Buyer, and thereafter to give guidance to Buyer to achieve compliance with the Fire
Code; and
NOW THEREFORE, the Parties agree as follows:
1. The attachments and information contained in the recitals above is
incorporated into this Forbearance Stipulation and Agreement by reference.
2. Owner and Marshal acknowledge that Owner disputes the validity of the
Notice ordering demolition, and Owner has filed a Federal Lawsuit which has stayed the
Notice pending resolution.
3. This Forbearance Stipulation and Agreement is entered into freely and
voluntarily and this Agreement entered into between the Parties shall not preclude the
Marshal or other appropriate City officials from revisiting this matter and taking further
action in the future should violations of applicable codes occurring at the Premises fail
to be brought into compliance.
4. The Owner and Buyer state that they have agreed to and executed a
Purchase and Sale Agreement (PSA) for the Premises. The enforceability of the PSA
between the Owner and Buyer is contingent upon the Marshal providing some certainty
regarding the Notice ordering demolition of the Premises, which is currently stayed.
5. As the intent of this Forbearance Stipulation and Agreement is to provide
certainty to Buyer as to the Notice and as to Buyer's obligations and duties under the
Notice, this Forbearance Stipulation and Agreement will be null and void unless: 1) the
Owner and Buyer successfully close (Closing) on the sale of the Premises from Owner
to Buyer on or before May 18, 2016; and 2) following that closing, Owner validly
executes a general release and voluntarily dismisses the Federal Lawsuit with prejudice
with all parties bearing their own expenses, including all attorneys' fees and costs
(Contingencies).
6. As the Notice runs with the Premises, once the Contingencies are met
Owner shall have no further liability regarding the Notice, and City shall fully acquit,
release and forever discharge Owner from any and all claims, demands, damages,
costs, attorneys' fees, actions and causes of action concerning any and all claims which
were raised or could have been raised in the Federal Lawsuit.
7. To the extent assignable, the City will permit, allow and recognize the
validity of Owner granting, transferring, assigning, setting over, conveying and delivering
to Buyer all of Owner's right, title and interest, if any, to any and all licenses, permits,
authorizations, waivers, variances, certificates of occupancy, credits, or other approvals
that are in effect for the Premises or improvements thereon, or any personal property
associated with same, along with any guaranties, warranties, credits, or development
rights that relate to the Premises, improvements thereon, or any personal property
associated with same.
8. Once the Contingencies are met, Marshal agrees to hold the Notice
ordering demolition in forbearance (Forbearance Period) until the date which is twelve
(12) months following the Closing and Buyer will take the following actions to bring the
Premises into compliance with the Fire Code:
a. Apply for site plan (flexible development) approval (Site Plan Approval) no
later than November 18, 2016 by submitting a complete and sufficient
application package for the Premises to the City Planning and
Development Department; and
b. Apply for any and all necessary building and construction permits
(Permits) per the Site Plan Approval within thirty (30) days of Site Plan
Approval; and
c. Diligently pursue and seek to obtain Site Plan Approval and Permits; and
d. In seeking the Site Plan Approval and all necessary Permits, comply with
all applicable construction National Fire Protection Association (NFPA)
Code sections, including but not limited to NFPA 241, Standard for
Safeguarding Construction, Alteration, and Demolition Operations.
Notwithstanding the foregoing to the contrary, the expiration of the
Forbearance Period shall be tolled for such period as necessary provided that Buyer
diligently pursues and seeks to obtain Plan Approvals, Permits and construction and
completion of the project in accordance with the Plan Approvals and Permits.
9. In the event that the forbearance period expires and Buyer has failed to
bring the Premises into compliance within the time specified, and in no event later than
November 18, 2017 regardless of tolling, this Forbearance Stipulation and Agreement
will be null and void, and the Marshal and appropriate City officials may avail
themselves of all rights under the Notice as to the Premises and the Buyer, including
but not limited to demolition of the Premises, and all rights under federal, state, and
local law to recover from Buyer the amount of the demolition, investigative costs, and
attorney's time expended in the prosecution and attempt at resolution in this matter.
10. If Buyer brings the Premises into compliance within the time specified
herein, then the Marshal shall rescind and dissolve the Notice ordering demolition.
11. The Parties agree that Buyer may only assign this Forbearance Stipulation
and Agreement to a related entity controlled by Buyer with the permission of the Fire
Marshal, and that such permission shall not be unreasonably withheld.
(remainder of page left blank intentionally, signatures on page to follow)
IN WITNESS WHEREOF, all Parties hereto have the capacity and ability to bind
themselves and have caused this Forbearance Stipulation and Agreement to be
executed on this day of , 2016,
John H. Marling
Chairman
INVESTORS' REALTY LTD., INC.
Dudley Q. Sharp, Esq.
South Milhausen P. A.
Attorney for Buyer/
INVESTORS' REALTY LTD., INC.
Countersigned:
Fire Divisil n Chief /Fire Marshal
41 i/!i�_
�C. Strong CFO, FM, CFFEI, CFII
Appr• ed . to fo
at hew M. S i ith, Esq.
Assistant City Attorney
Alberto Munoz Petiin, aka Alberto S. Munoz
aka Alberto M. Munoz
Managing Director
CLEARWATER ESPACIO DEVELOPMENT, LLC
Eric E. Page, Esq.
Shutts & Bowen LLP
Attorney for Owner/ CLEARWATER ESPACIO
DEVELOPMENT LLC
Attest:
Rosemarie Call
City Clerk
g. if Buyer complies with requirements of this Stipulation and Agreement within
the times specified herein,then the Marshal shall rescind and dissolve the Notice ordering
demolition.
10. This Stipulation and Agreement may be executed in counterparts, each of
which shall be deemed one and the same instrument. Any signature transmitted by
facsimile of electronic mail shall be binding as if an original.
IN WITNESS WHEREOF, all Parties hereto have the capacity and ability to bind
themselves and have caused this Stipulation and Agreement to be executed on this
day of December, 2016,
taw nce Debb Alberto Murloz Penin, aka Alberto S. Munoz
Manager aka Alberto M. Munoz
1100 CLEVELAND LLC Managing Director
CLEARWATER ESPAC10 DEVELOPMENT, LLC
v
-Kinin eth H. Br 64 W ffsiq�. --,_ Fria E. Page, Esq.
Brown & Brown P.C. Shutfs & Bowen LLP
Attorney for Buyer/ Attorney forOwner/CLEARWATER ESPACIO
1100 CLEVELAND LLC DEVELOPMENT LLC
Countersigned:
Fire i io Chief/Fire Marshal
S/ C. Strong CFO, FM, CPFEI, LFII
d
i �s a
Appr ed a to rr : Attest: 01, A
jy - i
t m 4
Matthew M. Srn. Esq. Rosemarie Calf
Assistant City A omey City Cleat
at 10
[LT15-1430C 1 56YI
9� If Buyer complies with requirements of this Stipulation and Agreement within
the times specified herein, then the Marshal shall rescind and dissolve the Notice ordering
demolition,
10, This Stipulation and Agreement may be executed in counterparts, each of
which shall be deemed one and the same instrument. Any signature transmitted by
facsimile of electronic mail shall be binding as If an original.
IN WITNESS WHEREOF, all Parties hereto have the capacity and ability to bind
themselves and have caused this Stipulation and Agreement to be executed on this
day of December, 2016,
Lawrence Debb Albertcr-M—uK6-2TPehn,4ka Alberto S. Munoz
Di
Manager aka Albert Munoz
gir�dor—
Albert
-131 Ham r
1100 CLEVELAND LLM-,a
C negi
CLEA ATER ESPACIO DEVEL PMENT, LLC
Kenneth H. Brown Esq, Eric E, Page, Esq.
Brown & Brown P.C. Shutts & Bowen LLP
Attorney for Buyer/ Attorney for Owner/CLEARWATER ESPACIO
1100 C LEVELAN D LLC DEVELOPMENT LLC
Countersigned:
Fire Division Chief/Fire Marshal
S. C. Strong CFO, FM, CFFEI, CF1I
Approved as to form: Attest:
Matthew M. Smith, Esq, Rosemarie Call
Assistant City Attorney City Clerk
(LTJ 5-14390-440/196563/11
CLEAR WA TER FIRE & RESCUE
Division of Fire Prevention Services
1140 Court Si. Clearwater. EL 33756
Phone 562-4327
April 27. 2015
Clearwater Espacio Development 1.1,C
1444 Biscayne Blvd, Suite 110
Florida 33132-1430
NOTICE OF UNSAFE BUILDING
Street address: 1100 Cleveland Street. Clearwater, Florida
Legal description; BASSEDLNA BLK A. LOTS I THRLi 14 INCL. & LO!' 15 LESS E'LY 23FT & BLK B LOTS
14 TIIRU, 21 INCL. & 10FT X 101:71,SWA IN SW COR OF LOT 22 & LESS T/A IN NW COR
LOT AND VAC NE CLEVELAND & KILGORES II.A.SUB LOTS 1,2.10 LOT 3
1,ESS 37FT X tiOFT TA IN NU: COR & W 17F r OF S 137FT (S) OF LOT 4
An ort-site .alet.v inspection was completed at 1100 C Itn, eland Street on April 27. 2015 at 10:30 am with permission from
Maribel Goldar. the representative for Lspacio Deiopnient. 1.1.C, he following Life Safety and imminent dangers
were found and are at least part of the reason the structure has been declared unsafe:
. No ■+ ater supply to structure
2. linusahle, inoperable standpipe
3. Unprotected elevator openings from the top to the ground floor crossing a fall fuuard.
4. laninished stairs in the upper floors
Non-compliant stairs to roof NN h MI are made of wood creating Life Safety hazard and any person getting
access to roof.
6. Elevator shaft pits filled with water creating drowning. hazard.
7. Open electrical junction boxes w ith protrudin g. unc.ipped wires that arc live, powered by 460 volt
transformer.
8. Cell tower CPS s.v stem and air conditioner systems on roof that create lire luvard, that are unprotected by
required fire suppression SVSICM.
9, C'ombustible refuse and storage all over site.
10. Site has become home site for residentially challenged
11. The site remains unsecure allowing people into the site.
At this time. Clearwater Fspacio Development LLC is given 48 hour to notify- its cellular tower clients, if any, that power
to the structure will he removed on April 30, 2015 in the morning, hours. Ibis action is necessary to partiall. abate the fire
harard. From this time period until April 30, 2015 Espacio Development. 1.1 C will be responsible for providing on site
security by hiring a professional security company at their cost to protect the lite safety of any persons tr) ing to reside
within the structure.
As per the National Fire Protection Association (NFPA) section 1.7„15 oldie Florida Fire Prevention Code and FS
033.202, -Imminent Danger i and Evacuation,- it i in the opinion of the Authority Hav ing _Jurisdiction that an imminent
danger exists at this location and the structure is declared unsafe pursuant to *47.161 of the Clearwater Code of
Ordinances.
You are hereby ordered to demolish the structure to abate the unsafe condition. he premises shall he vacated
immediately follow ine sert ice of notice due to the immediate ha7ard to life or to the safety of the public. All required
permits for demolition shall be secured and the work commenced w ulna sc■ ell calendar days following service of notice,
and the demolition be completed within 110 longer than 20 calendar days tnllowing issuance of the permit.
Page 2
[he Strand
lithe above required action k not commenced within or completed bv the time specified. the demolition shall be done by
the City and all cost; incurred charged to you.
Any persuu Ii ing any beat or equitable interest in the property may appeal this notice by the Fire Marshal to the
buildineflood hoard of adjustment and appeals; such appeal shall be in S1, riting in the form specified m Section +O1 of the
Standmd Unsafe Building Abatement Code and shall he tiled with the Fite Mat shal within seven calendar days follow ing
service of the notice. Upon a failure to appeal in the time specified, this notice shall constitute a final order and no
additional notice shall be required or provided. Failure to appeal in the time specified will constitute a waiver of all rights
tv an administrative hearing.
S.C. Strong Ct.O. I'M. C 12 El, (111
Fire Division Chief Fire Marshal
Fire Prevention Services & Support Services
BEFORE THE BUILDING/FLOOD BOARD OF ADJUSTMENT OF APPEALS
CITY OF CLEARWATER
CASE NO. 9AA2015-05003;
Clearwater Espacio Development LLC,
1100 Cleveland Street,
Appellant.
I
ORDER
This matter came before the City of Clearwater Building/Flood Board of Adjustment and
Appeals on the appeal of Clearwater Espacio Development LLC from a determin ation of the Fire
Division Chief /Fire Marshal that the Appellant's structure located at 1100 Cleveland Street.
Clearwater, is an unsafe structure constituting an immediate hazard to life or to the safety of the
public, and that such condition should be made safe by demolishing the structure.
The Fire Marshal's Notice of Unsafe Building ordering demolition of the structure is dated
April 27, 201 5. Appellant's application for this appeal was submitted on April 28, 2015, was duly
noticed for hearing, and was heard by the Board on June 2, 2015.
Testimony ryas heard from counsel for the Appellant and from City staff, and the parties
were given lengthy opportunity to examine and cross - examine the testifying witnesses. Exhibits
were introduced by both parties and reveiveti by the Board. Appellant presented a PowerPoint
stideshow, which included within it reports or portions of reports alleged to have been prepared by
expert witnesses acting on behalf of the Appellant. Expert reports were also included as exhibits
to the presentation and submitted by the Appellant. 'prose experts did not testify before the Board.
Community Development Code Chapter 47, Article VIII, Unsafe Buildings and Systems,
Section 47.161, provides that unsafe buildings and structures shall be abated by repair and
rehabilitation or by demolition pursuant to the provisions of the Standard Unsafe Building
Abaternent Code, which is adopted in Section 47.051 of the Code. Section 47.161 modifies Section
105 of the Standard Unsafe Building Abatement Code as follows:
Section 105. Section 105 i.s onrefrrler1 to renal in its entirety:
105. Board of adjustment and appears. The building/flood board of
adjustment and appeals shall have the authority to provide for
adjustments and appeals to the Standard tor Unsafe Budding
Abatement Code, and shall have the authority to make the final
interpretation of provisions of such code. This section shall not be
consented as depriving the Municipa I Code Enforcement Board of
its authority to conduct hearings relating to violations of the
Standard Unsafe Building Abatement Code or to carry out its
powers pursuant to Division 9 of Ai tick lit of Chapter 2 of the Code
of Ordinances.
Section 47.161 of the Community Development Code also amends Section 401.1 of the
Standard Unsafe Building Abate Code as follows:
Section 401.1. Section 401.1 is amended to read inn its
entirely:
401.1. Right of Appeal—Filing.
Any person entitled to service in accordance with the
provisions of chapter 3 of this Standard Unsafe Building
Abatement Code may appeal any action of the building
official under this code to the building/flood board of
adjustment and appeals_ Such appeal must be filed in writing
with the 'wilding official within seven calendar days from
the date of service on a form provided by the bur (ding official
containing at least the following information:
1. Identification of the building or structure by street
address or legal description.
2. A statement identifying the legal or equitable interest of
each appellant.
3. A statement identifying the specific order of the building
official or section of the code being appealed.
4. A statement detailing the issues on which the appellant
desires to be heard.
2
5. The signature or all appellants and their mailing
addresses.
6. An application fee as determined in the fee schedule. If
appellant is successful, the fee will be refunded.
Accordingly, the Board found that the appeal was properly filed by the Appellant and that
action on the appeal was within the Board's authority,
Based upon the evidence and testimony presented in the application, the Staff Report, and
at the hearing, the Board determined that:
1. The stricture located at 1 100 Cleveland Street is an unsafe building as that tern)
is defined in Chapter 2, Section 202 ofthe Standard Unsafe Building Abatement
Code; and
2. The structure constitutes an immediate hazard to life or to the safety of the
public; and
3, The Fire Division Chief/Fire Marshal acted within his authority under Sections
103.2 and 303 nf'the Standard 1Jnsafe Building Abair( ent Code, as amended
by Section 47.161 of the Community Development Code, in ordering the
demolition of the structure in order to make it safe.
Therefore, the Board, with five members being present, upon motion duly seconded, voted
four to one to deny the appeal application and affirm the Fire Division Chief/Fire Marshal's
decision/interpretation concer ►ling those issues.
The unofficial minutes of the Board's June 2, 2015 meeting are attached hereto and
incorporated herein by reference, which minutes shalt be replaced by the official minutes once
approved by the Board, The application, supporting material, agenda packet, and exhibits are found
in the Building Department's file and are incorporated herein by reference.
3
Based upon the foregoing and the record evidence, it is therefore:
ORDERED that the appeal of the Fire Division Chiet7Fire Marshal's decision in Case No.
BAA2015-05003 is hereby DENIED.
DONE AND ORDERED at Clearwater, Horida this day olJune, 2015.
v
Chair, Building/Flood Board of Adjustment and Appeals
City of Clearwater
Copies to
City Clerk
Katherine O Donn iley, Esquire
Matthew Smith, Esquire
4
;
GENERAL RELEASE
I,ALBERTO MUROZ PENIN,aka Alberto S. Munoz aka Alberto M.Munoz,as Manager
and Vice President for CLEARWATER ESPACIO DEVELOPMENT, LLC ("ESPACIO"), for
and in consideration of the City's (as defined below) promise to release ESPACIO from all duties
and liabilities connected with the property located at 1100 Cleveland Street, Clearwater, Florida
("Property"), contingent upon and subsequent to the sale and closing of the Property to 1100
Cleveland LLC, the receipt and sufficiency of which is hereby acknowledged, does hereby and by
these presents, for himself, his heirs, executors, administrators, representatives, successors, and,
assigns, fully acquitl release and forever discharge the CITY OF CLEARWATER, FLORIDA
("City"), its employees, commissioners, representatives, successors and assigns of and from any
and all claims, demands, damages,cost,attorneys' fees, actions and causes of action whether rising
at law or in equity which he or the Estate had, may now have, or may hereafter have against the
City, concerning any and all claims which were raised, or could have been raised, in Clearwater
i
Espacio Development, LLC v. City of Clearwater, Case No. 8:15-ev-01761-JDW-AEP, Middle
District of Florida(the "Federal Lawsuit"). Furthermore, ESPACIO agrees to voluntarily dismiss !
the Federal Lawsuit, with prejudice.
i
IT IS UNDERSTOOD that the acceptance by the undersigned of the aforesaid
consideration and execution and delivery of this Release is not to be considered an admission of
liability on the part of City; but is in full settlement and compromise of disputed Claims which the
undersigned has against City,
i
I
I
(LT15-143OC-440/175992/2] Page 1 of 2
I
THE UNDERSIGNED FURTHER REPRESENTS that he has read and understands this
General Release, and specifically understands that this is a General Release of all claims.
SIGNED AND SEALED this day of , 2016.
(CAUTION; READ BEFORE SIGNING)
z),,.
ERIC E.PAGE,Esq, Albert y I'e n , aka Alhe o S. .
Shutts&Bowen,LLC M�p z aka Alb M—Mu
.,manager
ESPACIO
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME the undersigned authority personally appeared, ALBERTO MUNOZ
PENIN, to me well known to be the same person described in the above instrument, or who has
produced (1t '-" x nick f�c�Dai ref j l7 Lr;'d as identification, and he/she
acknowledged to me that he/she executed same for the uses and purposes stated therein,
SWORN TO AND SUBSCRIBED before me this /9day of .�°2-yt7�
2016.
GRACEMARQUEZ
j. Commission#GG 004660 otary� ublic
Expires July 8,2020
0onded Thru Troy Pain lnsuranoo 80k 570t9
(Print or type name)
My Commission expires;
[1,T]5.1430C-440/175992/1]
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