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AGREEMENT FOR FACADE IMPROVEMENTSAGREEMENT FOR FACADE IMPROVEMENTS THIS AGREEMENT for Facade Construction, Maintenance and Reimbursement is made by and between the Clearwater Community Redevelopment Agency, a public body corporate and politic of the State of Florida ("CRA" or "AGENCY") and Zaniboni Lighting ("APPLICANT"). WHEREAS, APPLICANT is the tenant of certain real property within the CRA Redevelopment Area as described below; and WHEREAS, APPLICANT desires to improve the facade of buildings/structures further described herein, located at 101 N. Garden Ave., as described in Exhibit A hereto and by this reference incorporated herein. WHEREAS, the AGENCY was created as a public body corporate and politic for the purpose of, among others, carrying out the community redevelopment purposes of the Community Redevelopment Act contained in Ch. 163, Part III, Florida Statutes; and WHEREAS, the Act authorizes the AGENCY to provide maximum opportunities for the rehabilitation and redevelopment of property within a Community Redevelopment Area by private enterprise; and WHEREAS, the AGENCY agrees to provide incentives in the form of partial reimbursement for eligible expenses incurred in completing the Project, pursuant to the terms of this Agreement; and NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, and such other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: ARTICLE 1. RECITALS and DEFINITIONS. 1.01 The foregoing recitals are true and correct and are incorporated into and made a part of this Agreement as if fully set forth herein. 1.02 The terms used in this Agreement shall have the following meanings: "Act" means the Community Redevelopment Act of 1969, as amended, codified as Part III, Chapter 163, Florida Statutes. "Agreement" means this Agreement for Facade Improvements, including any attached Exhibits, and any revisions. "Applicant" means the party that submitted the Application that was approved by the CRA. The Applicant may be the Owner or a Tenant of the Property. "City" means the City of Clearwater, Florida, a municipal corporation. Page 1 of 12 "Application" means the application for assistance pursuant to the Facade Improvement Program as submitted by the Owner, or by the Tenant with Owner's consent, on April 20, 2018 and approved by the CRA Director, with or without modification, on , a copy of which is on file in the office of the CRA Director. "Actual Incentives" means the total amount the AGENCY reimburses the APPLICANT. "Commencement Date" means the date on which the Application was approved. "Completion Date" means the date on which the CRA approves the Project as being constructed consistent with the Project Plans. "Facade Design Services Program" means the Facade Improvement Program Guidelines as approved by the CRA, under which the Project is being funded. The Program Guidelines adopted in the 2018 Downtown Redevelopment Plan are made a part hereof by reference. "Financial Incentive Program" means the Facade Improvement Program Guidelines as approved by the CRA, under which the Project is being funded. The Program Guidelines adopted in the 2018 Downtown Redevelopment Plan are made a part hereof by reference. "Force Majeure" means conditions beyond the reasonable control of OWNER that will excuse OWNER's untimely performance, as further described in Section 2.03. "Owner" means the person or entity holding title to the real property and building upon which the Facade improvements are to be constructed. "Project Plans" means the plans and specifications for the Project, consistent with the approved Application and submitted by the APPLICANT to the CRA Director prior to execution of this Agreement, including any changes or additions approved or required by the CRA. "Project" means design, construction and maintenance of the Facade Improvements in accordance with the Application and the Project Plans, including the constructing and equipping thereon of other improvements appurtenant thereto with no unapproved Substantial Changes thereto. "Project Site" or "Property" means the property described in Exhibit "A" attached hereto and by this reference made a part hereof. "Substantial Changes" as determined at the sole discretion of the AGENCY, means any substantial deletions from, or additions to, the exterior appearance of the structures and buildings, as described in the Project Plans (a copy of which are filed in the AGENCY Page 2 of 12 Manager's office), or any diminution in the quality and quantity of the specific improvements described in the Project Plans. ARTICLE 2. CONSTRUCTION/ REIMBURSEMENT AND MAINTENANCE. 2.01. The Project shall be constructed as described in the Project Plans, without unapproved Substantial Changes. There shall be no unapproved Substantial Changes for a period of five (5) years after the Completion Date, whether such occur by design, neglect, casualty or otherwise, except as provided in Section 2.04(a). 2.02. The APPLICANT and AGENCY acknowledge that in order to promote redevelopment and to encourage and make the Project financially feasible, the AGENCY is committing funding to improve and maintain the Facade on the Project Site. The AGENCY agrees that within 30 days after the Completion Date it will provide the funding by way of partial reimbursement (50% of cost) for actual documented costs, up to the indicated amounts listed below. Only those eligible improvements described in the Facade Improvement Incentive Program are eligible for reimbursement. The APPLICANT understands that if the actual cost is less than listed below, only 50% of the actual cost will be reimbursed. • The APPLICANT will be eligible for a maximum reimbursement of up to $63,540 for the Project. • The APPLICANT must match incentive funds dollar -for -dollar; the match shall be of cash value for goods and/or services. • Labor charges for work performed by APPLICANT or OWNER (if different from APPLICANT will not be eligible for reimbursement. 2.03. Construction. Once this Agreement is executed, significant, ongoing progress must be demonstrated in order to maintain eligibility for reimbursement. Grant funds allocated to the Project will revert back to the Redevelopment Area's facade grant fund and the Facade Reimbursement Agreement will terminate, if the APPLICANT fails to make progress towards completion according to a work schedule agreed upon in conjunction with this Agreement, and on file in the CRA Director's Office. APPLICANT is responsible for obtaining or having obtained all required building permits for the work undertaken and must have a current business license throughout the Project. 2.04. OWNER (if different from APPLICANT) agrees that facade/improvements made using these funds will stay in place a minimum of five years. To this effect, prior to receiving reimbursement, the OWNER shall execute and record a facade preservation easement, in substantially the same form as Exhibit B, attached hereto. If the facade/improvements are replaced or not maintained in completed condition, normal wear and tear excepted, within five years of facade project completion, the APPLICANT and OWNER (if different from APPLICANT) must repay a portion of the reimbursement paid. As a recorded easement running with the land, the same requirement shall be in effect if the ownership is transferred within five years of facade project completion and as such shall be binding on the successor in interest. Exceptions: Page 3 of 12 a. The improvement has been damaged beyond repair (i.e. broken awning) and the improvement has been replaced with one of comparable appearance and quality. b. The improvement was replaced for the purpose of further renovation that will enhance the Project, as determined in the sole discretion of the CRA Director or designee. 2.05. Subordinate to AGENCY Debt. The reimbursement obligation shall be subordinate in all respects to all debt service obligations of the AGENCY under bonds or other forms of debt currently outstanding or to be issued in the future, which pledge tax increment revenues on deposit in the Redevelopment Trust Fund for the CRA. The obligations of the AGENCY as to any funding required pursuant to this Agreement shall be limited by an obligation in any given fiscal year to budget and appropriate from legally available sums in its Redevelopment Trust Fund, pursuant to the requirements of § 163.387, Florida Statutes, the funding that is required during that fiscal year. The AGENCY shall not be prohibited from pledging any legally available revenues in its Redevelopment Trust Fund for any obligations heretofore or hereafter incurred, which pledge shall be prior and superior to any obligation of the AGENCY pursuant to this Agreement. ARTICLE 3. PROJECT PLANS. 3.01. The AGENCY is not responsible for any error or omission in the Project Plans or failure of the Project Plans to comply with any building, zoning, or other regulations of the CITY or other regulatory agency. 3.02. If Substantial Changes are proposed by the APPLICANT to the Project Plans, they shall be resubmitted to the CRA Director or designee. The CRA Director or designee shall review the amended Project Plans within 5 business days of receipt. If the CRA Director or designee determines that the amended Project Plans do not meet the requirements of the Program or this Agreement, the CRA Director or designee shall so notify the APPLICANT within three business days of such determination. Upon receipt of such notification, the APPLICANT shall have 15 calendar days to amend the Project Plans accordingly and resubmit them to the CRA Director or designee. 3.03. If any Substantial Changes are required to be made to the Project Plans during the construction of the Project, the amended Project Plans shall be submitted to the CRA Director or designee prior to the commencement of the construction of the changes. The CRA Director or designee shall review the amendments for conformance with the requirements of the Program or this Agreement as described in the above paragraph. ARTICLE 4. INDEMNIFICATION. 4.01. In consideration of the AGENCY granting incentives pursuant to this Agreement to APPLICANT in connection with the development of the Project, the APPLICANT and the Page 4 of 12 OWNER (if different from the APPLICANT) shall indemnify and hold harmless the AGENCY, its agents, elected and appointed officers, attorneys and employees from all suits, actions, claims, demands, damages of every kind and description to which the AGENCY, or their agents, officers, attorneys or employees may be held liable by a court of competent jurisdiction by reason of injury to persons or death or property damage, resulting from or growing out of any negligence, error, omission or fault of the APPLICANT and the OWNER (if different from the APPLICANT), and their respective agents or employees, or its contractors or subcontractors occurring in connection with (i) any building, construction, installation or development work, service or operation being undertaken or performed in, on or over the Project Site, or (ii) any uses, occupancy, maintenance, repair and improvements, or operation of the Project Site. Provided, however, that the indemnification provided in and contemplated by this section shall not be applicable to the extent that a decision or judgment of a court of competent jurisdiction holds that any injury to persons or death or property damage was solely attributable to acts of negligence or fault of the AGENCY, or their agents, officers, attorneys or employees. 4.02. Nothing in this Agreement shall be interpreted or construed as a waiver of the AGENCY'S sovereign immunity set forth in section 768.28, Florida Statutes. 4.03. No recourse shall be had for any damages or claims based upon any representation, obligations, covenant or agreement in this Agreement against any past, present or future officer, member, legal counsel, employee, director or agent, as such, of the AGENCY, either directly or through the AGENCY or respectively, any successor public or private corporation thereto under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such officers, members, legal counsels, employees, directors or agents as such is hereby expressly waived and released as a condition of and consideration for the execution of the Agreement. 4.04. This Article shall survive the Completion Date of the Project and shall remain in full force and effect until all obligations and requirements under this Agreement have been completed. ARTICLE 5. RESERVED. ARTICLE 6. REPRESENTATION, WARRANTIES AND COVENANTS OF OWNER 6.01. The APPLICANT represents and warrants to the AGENCY that the following statements are true: (a) The APPLICANT is a valid existing entity 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 property and to enter into and perform the obligations of this Page 5 of 12 Agreement and each instrument to which it is or will be a party, and has consented to service of process in the State of Florida. (b) Each document to which the APPLICANT is or will be a party has been duly authorized by all necessary action on the part of, and has been or will be duly executed and delivered by, the APPLICANT, and neither the execution and delivery, nor compliance with the terms and provisions: (i) requires the approval of any other party, except as have been obtained or as are noted herein, (ii) contravenes any law, judgment, governmental rule, regulation or order binding on the APPLICANT, or (iii) results in any default under or creates any lien upon any property of the APPLICANT. (c) Each document to which the APPLICANT is or will be a party constitutes a legal, valid, and binding obligation of the APPLICANT, enforceable against the APPLICANT, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws which affect creditor's rights generally and subject to usual equitable principles if equitable remedies are invoked. (d) There are no pending or threatened actions before any court or administrative agency against the APPLICANT, or against any officer of the APPLICANT that question the validity of any document contemplated herein, or that are likely to materially adversely affect this Agreement or the financial condition of the APPLICANT. (e) The APPLICANT is financially capable of carrying out all obligations in connection with the acquisition, construction and equipping of the Project contemplated by this Agreement. 6.02. The APPLICANT covenants with the AGENCY that: (a) The APPLICANT shall timely fulfill all the conditions herein that are within the control of APPLICANT and are the responsibility of APPLICANT. (b) The APPLICANT shall use its best efforts to accomplish the development of the Project, and will not knowingly violate any laws, ordinances, rules, regulations or orders that are or will be applicable thereto, including the Plan and the Act, nor permit others to do so. ARTICLE 7. DEFAULT; TERMINATION. 7.01. There shall be a default by the APPLICANT if the APPLICANT fails to perform or comply with any material provision of this Agreement. There shall be a default by the AGENCY if the AGENCY fails to perform or comply with any material provision of this Agreement. Page 6 of 12 7.02. Except as provided in the Facade Preservation Easement, attached as Exhibit B, if a default occurs, upon giving 15 days written notice of such default to the defaulting party, and upon expiration of such 15 day notice period if the default has not been cured, the non -defaulting party may terminate this Agreement. In the situation where the non -defaulting party is the APPLICANT, its sole remedy shall be the amount of approved Incentives, less reimbursements already made, provided that Completion has timely occurred prior to default. In the case of a default which also involves a violation of the Facade Easement, the remedies described in the Easement may also be pursued. 7.03. The failure of the AGENCY or APPLICANT to promptly insist upon strict performance of any provision shall not be deemed a waiver of any right or remedy that they may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such provision. 7.04. (a) The undertaking and completion of the Project and performance by the APPLICANT in accordance with the provisions of this Agreement are dependent upon the timely completion and approval of plans, permits and successful financing. In addition to a termination upon a default, this Agreement may be terminated by the APPLICANT or AGENCY if the APPLICANT does not commence construction or obtain a building permit for the Project within three months of the effective date of this Agreement, or complete construction in accordance with the agreed upon schedule. (b) The Agreement may be terminated by the APPLICANT for any reason prior to receiving payment of any Actual Incentives. (c) In the event of a termination pursuant to this Section 7.04, neither the APPLICANT nor AGENCY shall be obligated or liable one to the other in any way, for any claim or matter arising from this Agreement or any actions taken by the APPLICANT or AGENCY thereunder or contemplated hereby. Each party shall be responsible for its own costs. ARTICLE 8. DISPUTE RESOLUTION 8.01. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the alleged breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. 8.02 In the event of any alleged breach arising out of or relating to this Agreement, that is not resolved in accordance with 8.01 above, the matter may be entered by either party in any court having jurisdiction thereof. In any litigation, including breach, enforcement or interpretation, arising out of this Agreement, the prevailing party in such litigation, shall be entitled to recover from the non -prevailing party reasonable attorney's fees, costs and expenses. ARTICLE 9. ANTIDISCRIMINATION. Page 7 of 12 The APPLICANT agrees there shall be no discrimination against or segregation of any person, or group of persons, on account of age, sex, sexual orientation, race, color, marital status, creed, national origin, ancestry or disability in the employment of persons for the construction, sale or lease of any space in the Project. ARTICLE 10. MISCELLANEOUS. 10.01. Assignment. Prior to the Completion Date, the APPLICANT and OWNER (if different from the APPLICANT) may not sell, convey, assign, or otherwise transfer or dispose of any of its rights, title, and interest in the Project, or any duty or obligation of the APPLICANT and OWNER (if different from the APPLICANT) pertaining to the Project, or any part thereof without prior written consent of the AGENCY. The OWNER may mortgage its interest in the Project or Project Site, or any part thereof, to any Mortgagee. The OWNER may enter into leases in the Project in the ordinary course of business. 10.02. Beneficiaries. The Agreement has been entered into for the benefit of the parties and there are no third party beneficiaries. Unless expressly granted in a written instrument executed by the APPLICANT and OWNER (if different from the APPLICANT) and approved by the AGENCY, third parties acquiring any indicia of ownership in the Property or any portion of the Project shall not, by virtue of such acquisition or otherwise, acquire or receive any right, title or interest whatsoever in any of the incentives, payments or benefits to arise or be made by the AGENCY under this Agreement. 10.03. Notices. All notices, demands, requests for approvals, or other communications shall be deemed given and delivered on the date delivered in person or on the date mailed by registered or certified mail, postage prepaid, return receipt requested, and addressed: To the OWNER (if different from the APPLICANT) 101 N. Garden LLC 101 N. Garden Avenue Clearwater, FL 33755 To the AGENCY: Amanda C. Thompson Director Community Redevelopment Agency City of Clearwater 112 South Osceola Avenue Clearwater, FL 33756 To the Applicant: With copy to: CRA Attorney Office of the City Attorney City of Clearwater 112 South Osceola Avenue Clearwater, FL 33756 These addresses may be changed from time to time in writing delivered to the other party. Until written notice is received, a party may rely upon the last address given. Notice shall be deemed given, if notice is by mail, on the date mailed to the address set forth above or as changed pursuant to this Section. Page 8 of 12 10.04. Severability. If any provision of this Agreement is held invalid, the remainder shall not be affected if such remainder would then continue to conform to the requirements of applicable laws and if the remainder can be reasonably performed without material hardship, so as to accomplish the intent and the goals of the parties. 10.05. Governing Law; Construction. The laws of the State of Florida shall govern the validity, performance and enforcement of this Agreement. This Agreement has been negotiated by each party. It shall not be deemed to have been prepared by the AGENCY or APPLICANT, and each of them shall be deemed to have participated equally in the preparation hereof. 10.06. Venue; Jurisdiction. (a) Each party 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 relating to this Agreement and agrees not to assert by way of a motion or a defense or otherwise that such action is brought in an inconvenient forum or that the venue of such action is improper or that the subject matter thereof may not be enforced in or by such courts. (b) If at any time, the APPLICANT or OWNER (if different from the APPLICANT) is not a resident of the State of Florida or has no agent available for service of process as a resident of the State of Florida, or is a foreign corporation, partnership, or other entity that has no agent available for service in the State of Florida, the OWNER consents to service on its designated agent for such purpose and designates the Secretary of State, State of Florida, its agent for service in any court action between it and the AGENCY 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 Secretary of State, a copy of such service shall be mailed by prepaid, registered mail, return receipt requested, to the APPLICANT or OWNER (if different from the APPLICANT) at the address for notices. 10.07. Entire Agreement; Conflicts. This Agreement, including the Exhibits attached, constitutes the full and complete agreement between the parties, and supersedes and controls any prior agreements, representations and statements, whether written or oral. Each Exhibit referred to in this Agreement, together with the Application, are an essential part of this Agreement. The Exhibits, Application, any documents incorporated by reference and any amendments, even if not physically attached, shall be treated as a part of this Agreement. 10.08. Captions. The section headings and captions of this Agreement are for convenience only and in no way define, limit, or describe the scope or intent of this Agreement. 10.09. Successors and Assigns. The terms AGENCY and APPLICANT shall include their successors and assigns and all benefits and obligations shall inure to and bind such successors and assigns. Page 9 of 12 10.10. Time. Whenever a notice or performance is to be done on a Saturday or Sunday or on a legal holiday observed in the City of Clearwater, Florida, it shall be postponed to the next business day. 10.11. Term. Except as otherwise provided herein, this Agreement shall expire when the Project is completed, reimbursement is made as provided herein and there are no uncured defaults under this Agreement. 10.12. Effective Date. This Agreement shall be effective on the date the Agreement is executed by the last of the parties below. IN WITNESS WHEREOF, the parties have signed this Agreement on the dates indicated below. Countersigned: `• By: ..- �1. 1t^ et (Vico( George N. Cretekos Chairperson Approved as to form: f� Pamela K. Akin City Attorney COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA By: Attest: anda C" Thompson Director Calk: 'Rosemarie Call City Clerk Page 10 of 12 WITNESSES: Sign name: Print name: El/ Sign name. Print name: Moak C110Nut APPLICANT: 101 N. GARDEN LLC By Name: Chiara Zaniboni Title: Owner STATE OF Ft,c(L' PA COUNTY OF P N wAS The foregoing instrument was acknowledged before me this 25 day of , 20 lib, by Chiara Zaniboni, as the property owner of 101 N. Garden Ave., and who has acknowledged that he/she has executed the same on behalf of the company, and that he/she was authorized to do so. He/She is personally known to me or has produced as identification. Notarlblic, StaFlorida Affix Stamp **NOTE: If the APPLICANT is different from the OWNER, an OWNER'S ACKNOWLEDGEMENT and CONSENT must be executed by the OWNER and attached, or this Agreement is invalid and of no force and effect. Page 11 of 12 Exhibit A Legal Description GOULD & EWING'S 1ST ADD BLK 7, LOTS 5, 6 & 7 LESS RD ON W & PART OF VAC 2.76 FT OF RD R/W S OF LOT 7 & THAT PART OF LAND ON E ADJ TO SD LOTS DESC BEG AT SW COR OF SD LOT 7 TH S89D13'E 113.44FT TH NOOD 51'21"E 67.74FT TH N04D57' 56"E 81.68FT TH S88D47' 08"E 1.81FT TH SO4D57' 56"W 81.68FT TH S89D13'E 36.33FT TH N04D57'56"E 75.31FT TH S87D52'46"E 63.91FT TH SO4D42'35"W 73.7FT TH S89D19'01 "E 15FT TH SO4D50'24"W 73.41FT TH N87D49'19"W 232.17FT TO POB (INCOMPLETE DEED MISSING O.R. 5201/974) Page 12 of 12