Loading...
ESTOPPEL CERTIFICATE ESTOPPEL CERTIFICATE THIS ESTOPPEL CERTIFICATE, made effective as of the .J:i!day of June, 2007, by THE CITY OF CLEAR WATER, FLORIDA, a Florida municipal corporation ("City"), whose mailing address is 112 S. Osceola Avenue, Clearwater, FL 33756, to DOUGHERTY FUNDING, LLC, a Delaware limited liability company ("Lender"), whose mailing address is 90 South Seventh Street, Suite 4300, Minneapolis, MN 55402, and/or its participants, successors or assigns, and HVP II NR INVESTMENTS LLC, a Delaware limited liability company, whose mailing address is 191 North Wacker Drive, Suite 4500, Chicago, IL 60606 ("Mezzanine Lender"). WIT N E SSE T H: A. WHEREAS, City entered into a Second Amended and Restated Development Agreement For Property in the City of Clearwater with Beachwalk Resort, LLC ("Beachwalk"), dated December 1 0, 2004 and that certain First Amendment to Second and Amended and Restated Development Agreement dated February 1, 2006 with Crystal Beach Capital, LLC ("Borrower") and that certain Second Amendment to Second Amended and Restated Development Agreement For Property in the City of Clearwater dated March 6, 2007 (as so amended, the "Development Agreement"); B. WHEREAS, Borrower has obtained or will obtain a loan from Lender secured by, among other things, a Mortgage, Security Agreement, and Fixture Financing Statement, and a loan from Mezzanine Lender, and as a condition to making such loan, it was agreed between Borrower, Lender, and Mezzanine Lender that Borrower would obtain from City certain written agreements, including this Estoppel Certificate; and NOW THEREFORE, for and in consideration of the premises and of the mutual covenants and promises herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City certifies to Lender and Mezzanine Lender as follows: 1. The City has approved the site plan and agrees that the site plan conforms with Section 2.03(1) of the Development Agreement. 2. The City agrees that the Project (as defined in the Development Agreement) satisfies the concurrency requires of Florida law and that construction commenced on or before December 31, 2006, pursuant to Section 3.03 of the Development Agreement. Accordingly, the City waives the (i) right to purchase the Project Site (as defined in the Development Agreement) pursuant to Section 5.04(2) of the Development Agreement N :\pl~wj\60 1922.doc and (ii) any right to terminate the Development Agreement due to Borrower's failure to commence construction. 3. The City has commenced work on the South Gulfview and Beach Walk Improvements pursuant to Section 5.04(1) of the Development Agreement, and the City agrees to make reasonable efforts to complete construction of the portion abutting the Project prior to the issuance of the Certificate of Occupancy for the Project. 4. The City has adopted vacating ordinances relating to the Right-of- Ways pursuant to Section 5.04(2) of the Development Agreement. 5. The Borrower has paid all costs to be paid to the City required under the Development Agreement as of the date hereof, including but not limited to the costs described in Section 5.05(5)(b) of the Development Agreement. 6. The piling & foundation permit, All demolition permit, site alteration/drainage permit, vacation condition and building permit package identified on Exhibit G of the Development Agreement, have been issued and the re-plat approval and utility relocation permit identified on Exhibit G of the Development Agreement are not applicable. 7. Pursuant to Section 6.04 of the Development Agreement Borrower may collaterally assign its interest in the Development Agreement to the Lender without City consent. 8. Except as stated in the Recitals hereto, there have been no amendments or modifications to the Development Agreement; the Development Agreement is in full force and effect; and, to the City's knowledge, there is no Default by the Borrower under the Development Agreement. 9. Following receipt of the notice of the project financing being provided by Lender as required pursuant to Section 6.01 of the Development Agreement, the City agrees to deliver a copy to Lender of all notices provided to the Borrower simultaneously with delivery to the Borrower. 10. Pursuant to Section 17.05 of the Development Agreement if part of the Project or Project Site, or both, shall be taken by the exercise of the power of eminent domain at any time before the Expiration Date, subject to the rights of a Project Lender, the compensation awarded to and received by the Developer shall be applied first to restoration of the Project, provided the Project can be restored and be commercially feasible for the intended use as contemplated by Section 2.03(1) of the Development Agreement after the taking and, if not, retained by the Developer. 11. To the City's best knowledge, Borrower is in compliance in all material respects with the terms of the Development Agreement. - 2- 12. The City agrees to inform Lender and Mezzanine Lender if at any time it believes the parking rates charged Developer are unreasonable under Section 5.03 of the Development Agreement, and if the City exercises its right to purchase under Section 5.03, it will not pay the proceeds to Borrower without first obtaining a partial release of the mortgage of such property purchased. [signature page follows] - 3- IN WITNESS WHEREOF, the City has caused this instrument to be executed as of the day and year first above written. CITY OF CLEARWATER, FLORIDA By: @~~.~:n: William B. Home II City Manager Approved as to form: Attest: QJl~ Pamela K. Akin City Attorney ~ ~.