DEVELOPMENT AGREEMENT - CLEARWATER CENTRE DEVELOPMENT (2)
DEVELOPMENT AGREEMENT
(Clearwater Centre Development)
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This Dev~pment Agreement ("Agreement") is made as of this 1 day
of e' 20~ and between the COMMUNITY REDEVELOPMENT AGENCY OF
TH ITY OF CLEARWATER, FLORIDA. a public body corporate and politic of the State
of orida created pursuant to Part III, Chapter 163, Florida Statutes (IIAgencyll), and
CLEARWATER CENTRE, L.L.C., a Florida limited liability company ("Developer").
WIT N E SSE T H:
WHEREAS, the Agency and Developer have entered into and concluded negotiations of
a development agreement pursuant to Developer's request for specific assistance as outlined
herein, pertaining to and setting forth the terms and conditions for the development of certain
parcels located at the northeast corner of the intersection of Cleveland Street and MLK Jr.
Avenue, Clearwater, Florida, and legally described as set forth in Exhibit A, known as
Clearwater Centre in the community redevelopment area of the City;
WHEREAS, at a duly called public meeting on ~ ...JS:.. 20rl. the
Agency approved this Agreement and authorized and directed its xecution by the appropriate
officials of the Agency;
WHEREAS, the Members (as that term is defined in the operating agreement of the
Developer) of Developer have approved this Agreement and has authorized and directed
certain individuals to execute this Agreement on behalf of Developer; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.01. Definitions. The terms defined in this Article I shall have the following
meanings, except as herein otherwise expressly provided:
(1) "Actll 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 E.
(5) "Agreement Termination Certificate" means the instrument executed by the
parties hereto as provided in Section 9.06 stating that this Agreement has been terminated prior
to its Expiration Date as provided in Section 9.05, the form of which is attached hereto as
Exhibit F.
(6) "Allowable Retail Uses" means a neighborhood commercial retail establishment,
not otherwise prohibited by zoning, that sells or leases goods directly to the consumer. The
Town Lake Residential District envisions a residential district with neighborhood commercial
uses. New commercial uses should be of the type and scale to serve the new residential
development. More intense commercial and office development may be permitted, however,
along major streets such as Myrtle Avenue, Cleveland Street, Martin Luther King, Jr. Avenue
and Court and Chestnut Streets.
(7) "Area" means the area located within the corporate limits of the City having
conditions of slum and blight (as those conditions are defined in the Act) as found by the City
Council in Resolution No. 81-67, adopted by the City Council on August 6, 1981, and as
amended by Resolution No. 03-22, adopted by the City Council on May 1, 2003.
(8) "Authorized Representative" means the person or persons designated and
appointed from time to time as such by the Developer or the Agency, respectively, pursuant to
Section 2.04.
(9) "Building Permit" means, for all or any part of the Clearwater Centre Project to be
constructed on the Site, a permit issued by the City authorizing, allowing and permitting the
commencement, prosecution and completion of construction to the extent provided in said
permit.
(10) "City" means the City of Clearwater, Florida, a Florida municipal corporation, and
any successors or assigns thereto.
(11) "City Council" means the governing body of the City J by whatever name known or
however constituted from time to time.
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(12) "Commencement Date" means the date of issuance of the first Building Permit
for any part of the Clearwater Centre Project.
(13) "Completion Date" means the date on which construction of the Project is
substantially complete as evidenced by a Completion Certificate.
(14) "Construction Financing" means the funds provided by the Construction
Lender to the Developer during the term of this Agreement to pay the cost of developing
and constructing the Clearwater Centre Project, or any portion thereof, on the Project
Site, including, financing costs, "soft costs," overhead, and the design, construction and
equipping ofthe Clearwater Centre Project.
(15) "Construction Lender" means any person or persons providing the
Construction Financing or any portion thereof.
(16) "Contractor" means one or more individuals or firms constituting a general
contractor or other type of construction contractor properly licensed by the State of Florida or
other appropriate jurisdiction to the extent required by applicable law, authorized to perform
construction contractor services in the State of Florida, registered with the City as required by
applicable law, bonded and insured to the extent required by applicable law and this Agreement,
including the Developer or any affiliates of the Developer.
(17) "Developer" means Clearwater Centre, L.L.C., a Florida limited liability company,
and any successors and assigns thereof, including any entity, partnership, joint venture, or other
person in which Clearwater Centre, LL.C., is a general partner or principal, but not including
any entity, partnership, joint venture, or other person in which Clearwater Centre, L.L.C. is a
general partner or principal which is not undertaking or participating in any development of the
Clearwater Centre Project, or any part thereof. For purposes of the Performance Mortgage
provided as security for performance of obligations contained herein, Developer shall also
include Sebastian Domer and Elizabeth Domer, his wife ("Domer") whose mailing address is
1180 Gulf Blvd., Clearwater Florida 33767. Nevertheless, Domer shall have no personal liability
for the obligations of the Developer herein beyond providing security in the form of the
Performance Mortgage.
(18) "Effective Date" means the date determined in accordance with Section 11.20
when the Memorandum of Development Agreement is recorded and this Agreement becomes
effective.
(19) "Exhibits" means those agreements, diagrams, drawings, specifications,
instruments, forms of instruments, and other documents attached hereto and designated as
exhibits to, and incorporated in and made a part of, this Agreement
(20) "Expiration Date" means the date on which this Agreement expires, as evidenced
by the Agreement Expiration Certificate being recorded in the public records of Pinellas County,
Florida, as provided in Section 11.19 hereof.
(21) "Impact Fees" means those fees and charges levied and imposed by the City,
Pinellas County and any other governmental entity on projects located on the Site for certain
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facilities and services impacted by development such as the Project but for the purposes of this
Development Agreement, shall not include the fees or costs pursuant to the Public Art and
Design Program (section 3-2401 through 3.2406 of the Clearwater Community Development
Code)
(22) "Permits" means all zoning, variances, approvals and consents required to be
granted, awarded, issued, or given by any governmental authority in order for construction of
the Project, or any part thereof, to commence, continue, be completed or allow occupancy and
use, but does not include the Building Permit.
(23) "Plan" means the community redevelopment plan for the Area, including the Site,
as adopted by the City Council on September 18,2003, by enactment of its Ordinance No. 7153-
03, and including any amendments to the Plan.
(24) "Project" means the Clearwater Centre Project. The Project is a mixed-use
development with a maximum of 88 residential condominium units; approximately 214 private
parking. spaces; and not more than 21,498 square feet of non-residential area comprised of
approximately 15,498 square feet of ground level retail space and approximately 6,000 square
feet of office space and Sidewalk Improvements. The Community Development Board (COB)
issued flexible Development Approval on July 18, 2006.
(25) "Project Plans and Specifications" means the plans and specifications pertaining
to the construction, installation and equipping of the Clearwater Centre Project, including the
schedule for completing the Project, consisting of the plans and specifications.
(26) "Project Professionals" means any architects, attorneys, brokers, engineers,
consultants, planners, construction managers or any other persons, or combination thereof,
retained or employed by the Developer in connection with the planning, design, construction,
permit applications, completion and opening of the Project, but does not include the Developer.
(27) "Proposal" means the proposal for redevelopment of the Site, per the Site Plan
submitted by Developer and approved by the COB on July 18, 2006.
(28) "Sidewalk 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.
(29) ''Site'' means that certain property with a street address of 1100 Cleveland Street,
located in Clearwater, Florida, as more particular1y described on Exhibit A attached hereto, on
which the Clearwater Centre Project is to be located.
(30) "Site Plan" means the depiction and description of the Project on the Site, the
initial version of which is attached hereto as Exhibit B.
(31) ''Termination Date" means the date on which this Agreement is terminated by
any party hereto as provided in Section 9.05, and as evidenced by the Agreement Termination
Certificate.
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(32) "Unavoidable Delay" means those events constituting excuse from timely
performance by a party hereto from any of its obligations hereunder, as such events are defined
in and subject to the conditions described in Article 10 hereof.
(33) "Clearwater Centre Project" means the development comprised of not more than
88 residential condominium units and appurtenant facilities, approximately 214 private parking
spaces, and not more than 21,498 square feet of non-residential area comprised of
approximately 15,498 square feet of ground level Allowabfe Retail Uses, approximately 6000 sq.
ft. of office and Sidewalk Improvements, to be located on the Site as contemplated by the
Proposal and this Agreement and constructed substantially in accordance with the Plans and
Specifications.
1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Unless the context
shall otherwise indicate, the singular shall include the plural as well as the singular number, and
the word "person" shall include corporations and associations, including public bodies, as well
as natural persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and
other equivalent words refer to this Agreement and not solely to the particular portion thereof in
which any such word is used.
1.03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes
(2005), as amended from time to time.
ARTICLE 2. PURPOSE; PROPOSAL
2.01. Intent: Puroose of Aareement.
(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 II for the
revitalization of the Downtown Core; and (ii) to further the implementation of the Plan by the
development and construction and operation of the Project thereon in accordance with the
Project Plans and Specifications, all to enhance the quality of life, increase employment and
improve the aesthetic and useful enjoyment of the Area through the eradication of conditions of
blight, all in accordance with and in furtherance of the Plan and as authorized by and in
accordance with the Act.
(b) (1) The Site is to be redeveloped according to Project Plans and
Specifications for use as not more than 88 residential condominium units, approximately 214
private parking spaces, approximately 15,498 square foot of ground level Allowable Retail Uses.
approximately 6000 sq. ft. of offICe and Sidewalk Improvements.
(2) As provided in this Agreement. the Agency shall undertake certain public
actions pursuant to the Act and as implementation of the Plan, and provide assistance in
obtaining such approvals by 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.
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2.02. Deve/ooer's ProDOsaf.
(a) The Proposal for the redevelopment of the Site, specifically including the design,
construction, equipping, compfetion 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.
(b) Based upon and as a result of the findings set forth in subsection (a) above, the
Proposal, including such changes and revisions as are provided by this Agreement, is hereby
affirmed by the Developer and approved and accepted by the Agency.
2.03. Coooeration 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 compfete 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 Reoresentative.
(a) Each party shall designate an Authorized Representative to act on its behalf to
the extent of the grant of any authority to such representative. Written notice of the designation
of such a representative (and any subsequent change in the Authorized Representative) shall
be given by the designating party to the other party in writing in accordance with the procedure
set forth in Section 11.03 hereof.
(b) Except as otherwise expressly provided in this Agreement, whenever approval or
action by the Developer or the Agency is required by this Agreement, such action or approval
may, in the discretion of the party considering such approval or action, be taken or given by the
Authorized Representative thereof. A party to this Agreement may rely upon the representation
of the other party's Authorized Representative that such person has the requisite authority to
give the approval or take the action being done by that Authorized Representative. A party may
not later deny that its Authorized Representative had the authority represented to and relied
upon by the other party or revoke or deny any action taken by such Authorized Representative
which was relied upon by the other party.
(c) The Developer does hereby notify the Agency that its initial Authorized
Representative for the Project is Guy M. Bonneville of Clearwater Centre, LLC.
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(d) The Agency does hereby notify the Developer that its initial Authorized
Representative is Rod "win, Executive Director of the CRA.
ARTICLE 3. LAND USE REGULATION.
3.01. Zonina. On the Effective Date, the zoning classification for the Site is "Downtown
Districtn, abbreviated as no. n 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 (COB) on July 18, 2006, permits development of
the Project.
3.02. RedeveloDment Plan. The Agency represents to the Developer and the
Developer acknowledges that as of the Effective Date, the Site is in the Town Lake Residential
District and the provisions of the Plan pertaining to the Site were consistent with the Clearwater
Centre Project as contemplated by the Proposal and this Agreement.
3.03. DeveloDment of ReoionallmDact. 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 except as otherwise provided
in Article 6.
(b) The Agency shall cooperate with the Developer in obtaining all necessary
Permits and the Building Permits required for the construction and completion of the Project.
(c) The Agency's duties, obligations, or responsibilities under any section of this
Agreement, specifically including but not limited to this Section 3.04 do not affect the Agency's
or the City's right, duty, obligation, authority and power to act in its governmental or regulatory
capacity in accordance with applicable laws, ordinances, codes or other building or project
regulation.
(d) Notwithstanding any other provisions of this Agreement, any required permitting,
licensing or other regulatory approvals by the Agency or the City shall be subject to the
established procedures and requirements of the Agency or the City with respect to review and
permitting of a project of a similar or comparable nature, size and scope. In no event shall the
Agency or the City, due to any provision of this Agreement, be obligated to take any action
concerning regulatory approvals except through its established processes and in accordance
with applicable provisions of law.
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3.05. ConcurrencY.
(a) The parties hereto recognize and acknowledge that Florida law (specifically, Part
II, Chapter 163, Florida Statutes, and Rule 9J-5, Rorida 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 Citys 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 Mure 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 Develooment 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 perm if' within the meaning of those terms in
Section 163.3164, Florida Statutes.
3.07. Permitted Uses.
(a) The Project shall consist of not more than 88 residential condominium dwelling
units and associated amenities.
(b) The Project shall have approximately 214 private parking spaces.
(c) The project shall contain not more than 21,498 square feet of non-residential
area that includes approximately 15,498 square feet of Allowable Retail Uses on the first floor
and approximately 6000 sq. ft. of office.
(d) The Developer shall actively market and use his best efforts to obtain tenants for
the first floor retail space as one or more of the Allowable Retail Uses described herein.
(e) Provided however, the following uses are prohibited:
1. All uses prohibited by the Clearwater Downtown Redevelopment Plan.
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2. A liquor store, however excluding a wine store.
3. A lounge and/or nightclub, however excluding a wine bar.
(f) Notwithstanding the uses prohibited in (e)2 and 3 above, an otherwise properly
licensed and permitted, allowable retail use as defined in 1.01.(6) hereinabove, including, but
not limited to a restaurant, deli, grocery store, convenience store, etc., shall not be prohibited
from package sales and/or sale by the drink for consumption on premises of beer, wine and
liquor.
(g) Establishments offering package sales and/or sale by the drink for consumption
on premises of beer, wine and liquor, shall be limited as follows:
1. The hours of operation for such sales shall be limited to 11 P.M. Sundays
through Thursdays and 12 AM. Fridays and Saturdays; and
2. Unless otherwise prohibited by law, the hours of operation may be
extended until 1 AM. Sundays through Thursdays and 2 AM. Fridays and Saturdays on those
days and only those days on which a public event, that is well publicized within local
newspapers, that takes place within the boundalies of the downtown expanded periphery, that
invites the general public, and which operates to at least 10 P.M. on the day extended hours are
made available.
ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS.
4.01. Site Plan.
(a) The Developer has prepared and received approval from the COB of a Site Plan,
a copy of which is attached hereto as Exhibit B, that contemplates development of the Project
consistent with this Agreement The Developer agrees that during the term of this Agreement
any material changes to the Site Plan or any subsequent versions of the Site Plan will be
submitted to the City, for review in accordance with the Land Development Code and Agency
for approval which Approval shall not be unreasonably withheld or delayed.
(b) The Site Plan approved by the COB, is hereby accepted by the Agency and shall
be the basis for and incorporated into the Project Plans and Specifications.
ARTICLE 5. CONSTRUCTION OF THE PROJECT.
5.01. Site Clearance. Permits issued by the City for pre-construction activities on the
Site, including site clearance, utility relocation, and interior demolition, shall not be considered a
Building Permit for purposes of this Agreement.
5.02. Construction of the Proiect.
(a) (1) The Developer shall construct the Project on the Site substantially in
accordance with the Project Plans and Specifications therefor. Subject to Unavoidable Delay
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and the terms and conditions in this Agreement, the Developer shall commence construction of
the Project by June 15, 2007.
(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 therefor 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 Project shall be completed by no later than
two years from the issuance of the first building permit.
(2) All obligations of the Developer with respect to commencement,
continuation and completion of construction of the Project shall be subject to delays and
extensions from time to time for Unavoidable Delay. The Developer shall not be deemed to be
in default of this Agreement to the extent construction or completion of the Project, or any part
thereof, is not complete by reason of Unavoidable Delay.
(c) For purposes of this Section 5.02, "completion," "complete," "substantially
complete" or "substantial completion" means, with respect to construction of the retail space of
the Project, a Certificate of Occupancy for the shell of any structure (not including tenant
improvements for the retail space) has been issued by the City; or for the residential and garage
areas, the issuance of a Certificate of Occupancy for each residential condominium unit and the
garage.
(d) If the Agency believes adequate progress in the construction of the Project is not
being made, the Agency shall give notice to the Developer that adequate progress is apparently
not being made in the construction of the Project and to respond within ten (10) business days
thereafter as to why adequate progress is or is not being made toward completion of the
Project.
5.03. Proiect Alterations or Imorovements. 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. ComDletion Certificate.
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(a) (1) Upon the substantial completion of the construction of the Project in
accordance with the provisions of this Article 5, the Developer shall prepare and execute the
Completion Certificate, which shall then be delivered to the Agency. Upon receipt of the
certificate the Agency shall promptly and diligently proceed to determine if construction of the
Project has been completed substantially in accordance with the Project Plans and
Specifications and this Agreement. Upon making such a determination, the Agency shall
execute the certificate and return it to the Developer. The date of the Completion Certificate
shall be the date when all parties shall have executed said certificate.
(2) The Completion Certificate shall constitute a conclusive determination by
the parties hereto of the satisfaction and termination of the obligations of the Developer
hereunder to construct the Project; provided, however, that nothing in this Section 5.04 shall be
a waiver of the rights, duties, obligations or responsibilities of the City or any other governmental
entity acting in its regulatory or governmental capacity or an approval of said construction for
purposes of the issuance of a certificate of occupancy for the Project.
(3) The parties agree that it is their intent that the review by the Agency for
purposes of the Completion Certificate determination pursuant to this Section 5.04 is not to be
an additional or duplicate inspection over and above that required for purposes of the Building
Permit, including the issuance of a certificate of occupancy. The Agency agrees that for
purposes of determining if the Project has been substantially completed in accordance with the
Project Plans and Specifications, the issuance of a certificate of occupancy for the Project shall
be a conclusive determination of substantial completion for purposes of this subsection (a) and,
if such certificate has been determined to have been issued, then the Agency agrees to execute
the Completion Certificate.
(b) (1) If the Agency shall refuse or fail to execute the Completion Certificate
after receipt of a request by the Developer to do so, then the Agency shall, within ten (10) days
after its receipt of such request, provide the Developer with a written statement setting forth in
reasonable detail the reason(s) why the Agency has not executed the Completion Certificate
and what must be done by the Developer to satisfy such objections so that the Agency would
sign the certificate. Upon the Developer satisfying the Agency's objections, then the Developer
shan 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, Rorida, and pay the cost of such recording.
5.05. Aaencv 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.
5.06 Securitv for Develooer's Performance. In consideration of the advancements,
reimbursements and payments made by the Agency pursuant to Article 6 hereof, Developer
shall provide a Performance Mortgage to secure the funds so paid, in substantially the form as
set forth and attached hereto as Exhibit C. Before any funds are paid, the mortgage shall be in
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place, securing a second lien position on the property so identified for Agency payments. This
obligation and the Performance Mortgage provided hereto shall survive termination as prvided
in paragraph 9.05 and 9.06. Upon issuance of the Completion Certificate, the Agency shall
cancel and release the Performance Mortgage and the same shall be of no further force and
effect.
ARTICLE 6. PAYMENTS BY AGENCY.
6.01. Pavment of Buildina Permit and Imosct Fees. The Agency shall pay the Projects'
Building Permit and Impact Fees in a total amount not to exceed $425,000. Such payment shall
be made as they become due and payable as provided in the Clearwater Code of Ordinances
and the Clearwater Community Development Code.
6.02 Payment of Utilitv Relocation Costs. The Agency shall fund and pay the costs to
relocate the existing water and sewer utilities on the property of the Project into the NE
Cleveland Street right of way per the solution provided by Developer's civil engineer, Keith
Zayac & Associates, as provided in Exhibit G, in a total amount not to exceed $260,000.
6.03 Pavment of StreetscaDe I Landscaoe ImDrovements. Upon completion of the
Sidewalk Improvements), the Agency shaH pay Developer a total amount not to exceed
$500,000 for Streetscape I Landscape Improvements constructed by the Developer as part of
the Project. Developer shall provide the Agency with documentation verifying expenditures for
the Streetscape I Landscape Improvements. Provided further, the total amount of
reimbursement payments said improvements shall not exceed the total expenditures made by
the Developer for Streetscape I Landscape Improvements for the Project.
6.04 Nothwithstanding paragraphs 6.01 through 6.03 above, the aggregate amount
payable by the CRA shall not exceed $1,040,000.
ARTICLE 7. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE DEVELOPER.
7.01. Reoresentations and Warranties. The Developer represents and warrants to the
Agency that each of the following statements is currently true and accurate and agrees the
Agency may rely upon each of the following statements:
(a) The Developer is a Florida limited liability company duly organized and validly
existing under the laws of the State of Florida, has all requisite power and authority to carry on
its business as now conducted, to own or hold its properties and to enter into and perform its
obligations hereunder and under each document or instrument contemplated by this Agreement
to which it is or will be a party, is qualified to do business in the State of Florida, and has
consented to service of process upon a designated agent for service of process in the State of
Florida.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which Developer is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and delivered by, the Developer,
and neither the execution and delivery thereof, nor compliance with the terms and provisions
12
thereof or hereof: (1) requires the approval and consent of any other party, except such as have
been duly obtained or as are specifically noted herein, (2) contravenes any existing law,
judgment, governmental rule, regulation or order applicable to or binding on the Developer, (3)
contravenes or results in any breach of, default under or, other than as contemplated by this
Agreement, results in the creation of any lien or encumbrance upon any property of the
Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the
Developer's articles of organization, or, any other agreement or instrument to which the
Developer is a party or by which the Developer may be bound.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Developer is or will be a party constitutes, or when entered into will
constitute, a legal, valid and binding obligation of the Developer enforceable against the
Developer in accordance with the terms thereof, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles in the event that equitable
remedies are involved.
(d) There are no pending or, to the knowledge of the Developer, threatened actions
or proceedings before any court or administrative agency against the Developer, or against any
controlling 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 1100 Cleveland Street, Suite 101, Clearwater, FL 33755 and, until the expiration or
termination of this Agreement, the Developer will keep original or duplicate records concerning
the Project (such as construction contracts, financing documents and corporate documents) and
all contracts, licenses and similar rights relating thereto at an office located in the corporate
limits of the City of Clearwater.
(h) As of the Effective Date, the Developer has the financial capability to carry out its
obligations and responsibilities in connection with the development of the Project as
contemplated by this Agreement.
(i) The Devefoper (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.
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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 7.01, prior to the expiration or
termination of this Agreement, the Developer shall maintain its existence, will not dissolve or
substantially dissolve all of its assets and will not consolidate with or merge into another limited
liability company, corporation, limited partnership, or other entity without the prior approval of
the Agency, unless the Developer is the surviving entity or retains a controlling interest in the
consolidated or merged entity, in which case no consent by Agency shall be required. In any
event, prior to the eXpiration or termination of this Agreement, the Developer, will promptly notify
the Agency of any changes to the existence or form of the corporation of Developer.
(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
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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. Reoresentations 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 "', Chapter 163,
Florida Statutes (known as the Community Redevelopment Act of 1969), has all requisite
corporate power and authority to carry on its business as now conducted and to perform its
obligations hereunder and under each document or instrument contemplated by this Agreement
to which it is or will be a party.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and delivered by, the Agency, and
neither the execution and delivery thereof, nor compliance with the terms and provisions thereof
or hereof (1) requires the approval and consent of any other party, except such as have been
duly obtained or as are specifically noted herein, (2) contravenes any existing law, judgment,
governmental rule, regulation or order applicable to or binding on the Agency, (3) contravenes
or results in any breach of, or default under or, other than as contemplated by this Agreement,
results in the creation of any lien or encumbrance upon any property of the Agency under any
indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances,
resolutions or, on the date of this Agreement. any other agreement or instrument to which the
Agency is a party, specifically including any covenants of any bonds, notes, or other forms of
indebtedness of the Agency outstanding on the Effective Date.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party constitute, or when entered into will
constitute, legal, valid and binding obligations of the Agency enforceable against the Agency in
accordance with the terms thereof, except as such enforceability may be limited by public policy
or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles in the event that equitable
remedies are involved.
(d) There are no pending or threatened actions or proceedings before any court or
administrative agency against the Agency, or against any officer of the Agency, which question
the validity of any document contemplated hereunder, or which are likely in any case, or in the
aggregate, to materially adversely affect the consummation of the transactions contemplated
hereunder or the financial condition of the Agency.
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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 bv Develooer.
(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
16
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
default, then the Agency may proceed to enforce other available remedies without providing any
additional notice to the Developer. The Agency shall have no obligation to make the payments
provided in Article 6 herein, while developer is in default.
(2) Any attempt by the Agency to pursue any of the above referenced
remedies will not be deemed an exclusive election of remedy or waiver of the Agency's right to
pursue any other remedy to which either may be entitled.
(3) Any time periods or deadlines provided in this Agreement shall be tolled
or extended by the amount of time to cure any event of default hereunder if such event affects
the Developer's or Agency's ability to perform by such deadline or the expiration of such period.
(d) In the event of a termination of this Agreement pursuant to this Section 9.01, the
Agency shall not be obligated to make or to continue to make any payments provided for in
Article 6.
9.02. Default by the Aaencv.
(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).
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(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 ot 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-ot-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 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 remecly to which it might be entitled.
(e) Any time periods or deadlines providecl 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. Obliaations. Riahts 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
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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 Aareement. 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 acknowfedge and agree that as of the Effective
Date certain matters mutually agreed by the parties hereto are essential to the successful
development of the Project have not been satisfied or are subject to certain conditions, legal
requirements or approvals beyond the control of any of the parties hereto or which cannot be
definitely resolved under this Agreement. In recognition of these events or conditions, the
parties hereto mutually agree that, provided the appropriate or responsible party therefor
diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or
condition to occur or be satisfied, the failure of the events or conditions listed in subsection (b)
below to occur or be satisfied shall not constitute an event of default by any party under this
Article 9, but may be the basis for a termination of this Agreement as provided in this Section
9.05.
(b) In addition to any other rights of termination provided elsewhere in this
Agreement, this Agreement may be terminated as provided in subsection (c) after the
occurrence of any of the following events or conditions:
(1) All of the Site is taken by the exercise of the power of eminent domain by
a governmental authority (except the City or the Agency) or a person entitled to exercise such
power or benefiting therefrom, or such part of the Site is taken by the power of eminent domain
so as to render the Project commercially unfeasible or unusable for its intended uses as
contemplated by this Agreement;
(2) The appropriate governmental authority (but not including the City in
exercise of its 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
19
such a certificate or reservation is required for development of the Project on the Site, and the
Developer cannot obtain a new or replacement certificate or reservation for the Project.
(5) The City approves an amendment to the Plan which is inconsistent with
the Project being located on the Site.
(c) Upon the occurrence of an event described in subsection (b), then the Developer
or the Agency may upon determining that such event cannot reasonably be expected to change
in the foreseeable future so as to allow development of the Project, may elect to terminate this
Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence
of such event or the determination of inability to cause a condition precedent to occur or be
satisfied, stating its election to terminate this Agreement as a result thereof, in which case this
Agreement shall then terminate, provided, however, only the Developer may elect to terminate
this Agreement upon the occurrence of an event described in paragraph (5).
(d) In the event of a termination pursuant to Section 9.05(b), neither the Developer
nor the Agency shall be obligated or liable one to the other in any way, financially or otherwise,
for any claim or matter arising from or as a result of this Agreement or any actions taken by the
Developer and the Agency, or any of them, hereunder or contemplated hereby, and each party
shall be responsible for its own costs.
(e) Notwithstanding anything to the contrary contained herein, in the event that any
party shall have, but shall not exercise, the right hereunder to terminate this Agreement
because of the non-satisfaction of any condition specified herein, and such condition is
subsequently satisfied, then the non-satisfaction of such condition shall no longer be the basis
for termination of this Agreement.
9.06. Tennination Certificate.
(a) In the event of a termination of this Agreement as provided in 9.05 prior to the
EXpiration Date, each of the parties hereto do covenant and agree with each other to promptly
execute a certificate prepared by the party electing to terminate this Agreement, which
certificate shall expressly state that this Agreement has been terminated in accordance with its
terms, is no 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, including but not limited
to paragraph 5.06) and that the Site is no longer subject to any restrictions, limitations or
encumbrances imposed by this Agreement.
(b) The certificate described in subsection (a) shall be prepared in a form suitable for
recording and promptly after execution by all of the parties hereto shall be recorded in the public
records of Pinellas County, Florida. The cost of recording the termination certificate shall be
paid by the terminating party.
9.07 Remedies. All remedies provided for herein and under Florida law shall be
cumulative and shall survive the technical termination of this Agreement pursuant to execution,
delivery and recordation of a Termination Certificate or otherwise hereunder.
ARTICLE 10. UNAVOIDABLE DELAY.
20
10.01. Unavoidable Delav.
(a) Any delay in performance of or inability to perfonn any obUgation 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. Assianments.
(a) (1) Prior to the earlier of the Termination Date or the Expiration Date, the
Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest
and obligations in and to the Project, or any part thereof to any person with the prior written
consent of the Agency, provided that such party (hereinafter referred to as the "assignee"), to
the extent of the sale, conveyance, assignment or other disposition by the Developer to the
assignee, shall be bound by the terms of this Agreement the same as the Developer for such
part of the Project as is subject to such sale, conveyance, assignment or other disposition,
except for the sale of a condominium in the ordinary course of business.
(2) If the assignee of Developer's right, title, interest and obligations in and to
the Project, or any part thereof, assumes all of Developer's obligations hereunder for the
21
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 Assians. 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, facsimile
transmission, or by hand delivery to the office for each party indicated below and addressed as
follows:
To the Developer:
To the Agency:
Clearwater Centre, L.LC.
1100 Cleveland Street
Suite 101
Clearwater, FL 33755
Attention: Guy M. Bonneville
FAX # (727) 588-9404
Community Redevelopment Agency of
the City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention: Rod Irwin
FAX # (727)
with copies to:
with copies to:
MacFarlane, Ferguson & McMullen
625 Court Street, Suite 200
Clearwater, FL 33755
Attention: Harry Cline
FAX # (727) 442-8470
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention: City Attorney
FAX # (727) 562-4021
22
(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.
11.05. ADDlicable 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 othelWise 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.
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11.07. Aareement Not a ChaDter 86-191. Laws of Florida. DevelODment Aareement.
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. Estoooel Certificates. The Developer and the Agency shall at any time and from
time to time, upon not less than ten (10) days prior notice by another party hereto, execute,
acknowledge and deliver to the other parties a statement in recordable form certifying that this
Agreement has not been modified and is in full force and effect (or if there have been
modifications that the said Agreement as modified is in full force and effect and setting forth a
notation of such modifications), and that to the knowledge of such party, neither it nor any other
party is then in default hereof (or if another party is then in default hereof, stating the nature and
details of such default), it being intended that any such statement delivered pursuant to this
Section 11.08 may be relied upon by any prospective purchaser, mortgagee, successor,
assignee of any mortgage or assignee of the respective interest in the Project, if any, of any
party made in accordance with the provisions of this Agreement.
11.09. ComDlete Aareement: 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. CaDtions. 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.
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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, Jease, conveyance or acquisition of
any or all of the Site.
11.14. Not an Aaent. 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 Develooment Aareement. The Agency and the Developer
agree to execute, in recordable form, on the Effective Date, the short form "Memorandum of
Agreement for Development, II the form of which is attached hereto as Exhibit 0 , 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 PUrDOse. 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 Obliaation. 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. 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: EXDiration: Certificate.
(a) If not earlier terminated as provided in Section 9.05, the term of this Agreement
shall expire and this Agreement shall no longer be of any force and effect (except for those
matters which specifically survive such expiration) on the tenth (10th) anniversary of the
Effective Date.
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(b) Upon completion of the term of this Agreement, all parties hereto shall execute
the Agreement Expiration Certificate. The Agreement Expiration Certificate shall constitute (and
it shall be so provided in the certificate) a conclusive determination of satisfactory completion of
all. obligations hereunder and the expiration of this Agreement.
(c) The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records of Pinellas County, Aorida. Following execution by all of the
parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the
Developer in the pubtic 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.
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affIXed as of this 7..... day of~, 2lXlf 61
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
By. ~./' K~
~nk V. Hibbard "
Chairperson . , '
Approved as to form:
Attest:
-'
CLEARWATER CENTRE, L.L.C.,
a Florida limited liability company
By: j~ J-~I
~bastian Domer, its Executive Member
...... .....
~
Pamela K. Akin
City Attorney
P~g e.1h ~j?t!Z-
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By:
~
~.t~/)~./H O~
EI~thD';,Jer
By: O('~.
Guy M. Bonneville, its Managing Member
ATTEST:
By:
PS# e - /l,'~G~
~~
(SEAL)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this i ~ day of
~ . 200.:l" by Sebastian Domer and Guy M. Bonneville, Executive Member and
Managif,g ("ember, respectively of Clearwater Centre, LLC., a Florida limited liability company,
on. behalf of such limited liability company. They are personally known to me or have produced
a valid driver's license as identification. ~.L/ _. I! / .
(SEAL) ~
o t-JAl,.. S .
Printedrryped Name:
Notary Public-State of Florida
Commission Number: ~ bb 5"S'3' I g
..:. ':>.-' .... -"~"---"':'''-'''''
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EXHIBIT A
LEGAL DESCRIPTION
rrO BE FURNISHED)
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LIST OF EXHIBITS
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT 0
EXHIBIT E
EXHIBIT F
EXHIBIT G
Legal Description
Site Plan
Performance Mortgage
Memorandum of Agreement for Development
Agreement Expiration CertifICate
Agreement Termination Certificate
Utility Relocation Plan
b:\data\aty\bsc\clearwatercentre\developmentagmtn27'06.doc
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