OWNERS ACKNOWLEDGEMENT AND CONSENT - FACADE PRESERVATION EASEMENT - AGREEMENT FOR FACADE IMPROVEMENTSOWNER'S ACKNOWLEDGEMENT AND CONSENT
The undersigned acknowledges and represents the following to be true and correct
statements and consents to be bound by the statements contained herein:
The Owner is the fee simple title holder of the Property described in the Agreement for Facade
Improvements dated (the "Agreement") between the Clearwater
Community Redevelopment Agency (the "CRA") and (the
"Applicant"); and
The Owner agrees that the Property will be benefitted from the Project to be undertaken pursuant
to the Agreement; and
In consideration of the benefit to the Property, the Owner agrees to be bound by Section 2.04 of
the Agreement, agrees to execute and be bound by the Facade Preservation Easement attached as
Exhibit "B" to the Agreement, and agrees to be bound by Article 4. Indemnification, Article 8.
Dispute Resolution and Article 10. Miscellaneous. of the Agreement.
This Consent and Acknowledgment is executed by the Owner on
Signed, sealed & delivered
In the Presen - o
N
Name:
ruk 3
.)M ?(I S
OWNER
44 P nt name: a fi 114211491-/-4/
Print title (if applicable):
STATE OF FL
COUNTY OF iO1/) (1`
The foregoing instrument was acknowledged before me this, of 7Ji G ,
20 , by , as the of
, for and on behalf of the . He/she is
ersonally known to me s has produced , as identification.
Notary ' blic, State of
My Commission Expires:
INNotary Public State of Florida
; Linda Kay Clark
�g My Commission GG 204694
er Expires 04/08/2022
1,3A d
This instrument prepared without examination of title by:
Michael P. Fuino CRA Attorney
112 South Osceola Ave
Clearwater, FL 33756
FACADE PRESERVATION EASEMENT
This Facade Preservation Easement is granted by CLEARWATER TOWER LLC (the
"Grantor"), and accepted by the CLEARWATER COMMUNITY REDEVELOPMENT
AGENCY, a public body corporate and politic of the State of Florida (the "Grantee" or "CRA").
RECITALS
WHEREAS, Grantor is the owner of certain real property in Pinellas County, Florida, and
more particularly described in Exhibit "A," attached hereto and made a part hereof (the
"Premises"); and
WHEREAS, in connection with that certain Application for Facade Improvement Program
approved by the CRA on December 18, 2018 (the "Agreement"), Grantor agreed to provide
Grantee with an easement which, among other things, provides for the maintenance of the Facade
as described in the Agreement; and
WHEREAS, in accordance with the terms of the Agreement, Grantor desires to grant to
Grantee, and Grantee desires to accept, an Easement on the Premises; and
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars and other good and
valuable consideration, paid by each party, the receipt and sufficiency of which are hereby
acknowledged by Grantor and Grantee, and in further consideration of the mutual promises and
representations made herein, the parties agree as follows:
1. The foregoing recitals comprise a material part of this document and are
incorporated herein.
2. Grantor does hereby grant and convey to the Grantee and Grantee hereby accepts
an easement for the preservation of the Facade of the Premises (the "Easement"). The "Facade"
of the Premises consists of all of the exterior surfaces of the structures on the Premises. Facade
does not include interior facing elevations of the Premises. It is contemplated by the parties that
the Facade is to be maintained as provided for herein in accordance with the approved Agreement.
The parties may agree to substitute photographs with accompanying text description of the
materials shown, constituting a convenient record of the state of the Facade, as of the date of
completion, and such record shall then be used as the primary evidence for enforcement of this
Easement.
3. The Grantee shall have and hold the Easement granted and conveyed to the benefit
of the Grantee, its successors and assigns, commencing on Completion Date of the Project, as more
[0P06-9601-015/218920/1] Page 1 of 7
specifically described in the Agreement for Facade Improvements. Within ten days of the
Completion Date of the Project, Grantor shall record this Easement in the Public Records of
Pinellas County, Florida. Unless earlier terminated by final judgment of a court of last resort or
by mutual agreement of the parties, this Easement shall remain in effect for five years from the
Completion Date of the Project, at which point, provided Grantor is not in default hereunder, with
notice of such default recorded in the Official Records of Pinellas County, Florida, this Easement
shall expire and be of no further force or effect. Such expiration shall be self -operative and shall
not require the filing of any further instrument of termination.
4. Without the prior express written consent of Grantee, such consent not to be
arbitrarily withheld, conditioned or delayed, Grantor will not undertake nor permit to be
undertaken:
(a) Any alteration, construction, remodeling, demolition, or reconstruction of
structures on the Facade, as described in the approved Agreement, which would be a
material alteration of, or substantial addition to, the present appearance of said Facade; or
(b) The exterior extension of the Facade or the erection of any new or additional
structures attached to the Facade; provided, however, that the cleaning, reconstruction.
repair, repainting or refinishing of presently existing elements of the Facade, to remedy
damage or deterioration, shall be permitted without consent of Grantee so long as it is
performed in a manner which will not result in a material alteration of, or substantial
addition to, the present appearance of the Facade.
Notwithstanding the foregoing, Grantor shall have the right to install on the exterior of the
structure, including the Facade, building and tenant signage as long as such signage is permitted
in accordance with the City of Clearwater Community Development Code. In addition, consent
of the Grantee shall not be required for any action to the extent necessary to rectify a condition
which, in Grantor's reasonable discretion, poses an immediate and substantial risk of causing injury
to persons or property, or for any pledge of the Premises or any part hereof, as security for
indebtedness or otherwise (provided such pledge shall be subject to and subordinate to this
Easement.)
5. Grantor agrees at all times to maintain the appearance and safe condition of the
Facade herein described in a good and sound state of repair. In the event of damage to the
Premises, for which repair or restoration is impractical in the reasonable opinion of the Grantor,
the Grantor may choose to make payment to the Grantee calculated in accordance with Section 7.b
and upon receipt of same, the Grantee shall execute a Termination and Release of Easement.
6. Subject to Florida Statute 768.28, Grantor shall be solely responsible for the
construction, maintenance and preservation and insurance of the Facade and shall indemnify and
hold Grantee, its elected and appointed officials, employees and agents (who may include City of
Clearwater officers and employees working on behalf of the CRA) harmless from all costs,
attorneys' fees and claims of damage to any person, property or premises resulting from the
construction, maintenance or preservation of the Facade, except for any loss, cost, claim or damage
caused by the gross or sole negligence of such parties. Nothing contained herein is intended to
[0P06-9601-015/218920/1] Page 2 of 7
serve as a waiver by the Grantee of its sovereign immunity, or to extend the liability of the Grantee
beyond the limits set forth in Section 768.28, Florida Statutes, or be construed as consent to be
sued by third parties.
7. In the event of a violation of this Easement, and after written notice from Grantee
to Grantor generally identifying the violation, and Grantor's failure to commence to cure such
violation within thirty (30) days after such written notice (and thereafter diligently continue such
curative work through to completion), Grantee, in order to insure the effective enforcement of this
Easement shall have, and Grantor hereby grants, the following rights to Grantee:
(a) The right to institute legal proceedings to require the restoration of
the Facade to their condition as they generally existed immediately prior to the
event or incident for which such work is required; or
(b) The right of liquidated damages based upon the failure to maintain
the Facade for the duration of this Easement, calculated as follows: Number of
whole months remaining in the term of this Easement (at time of notice of violation)
divided by number of whole months in the entire term of this Easement, times the
dollar amount of reimbursement made from Grantee to Grantor for the Facade
improvements; or
(c) The right to seek any and all other legal and equitable remedies to
enforce Grantor's obligations hereunder.
The failure of the Grantee to enforce any provision herein shall in no event be
deemed a waiver of such provision or the right of the Grantee to thereafter enforce such
provision.
8. The Grantor agrees that employees or agents of the Grantee shall be permitted at
reasonable times (which shall be established in advance by five (5) business days written notice to
Grantor) to come upon the Premises to inspect the Facade for violations of any of the covenants in
this Easement.
9. If any of the provisions of this Easement are determined to be unenforceable or
void, this shall not in any way affect the validity or enforcement of any of the other provisions.
10. Any notices required by this Easement shall be made to the addresses below. Such
notice or response shall be deemed given by either party when hand delivered or deposited for
mailing by certified or registered U.S.P.S. mail, return receipt requested, addressed to the party to
whom such notice or response is required to be given at his or its address set forth below or at such
other address as such party may have designated by notice duly given as provided in this section.
To Grantor:
Clearwater Tower LLC
33 N. Garden Ave., Ste 120
Clearwater, Florida 33755
[OP06-9601-015/218920/1] Page 3 of 7
To Grantee:
Clearwater Community Redevelopment Agency
Attn: CRA Director
112 South Osceola Avenue
Clearwater, Florida 33756
11. All provisions of this Easement shall be construed to be covenants running with the
land, shall touch and concern the land and with every part thereof and interest therein, and all
provisions shall be binding on the parties hereto and on their successors and assigns and any
subsequent owners of the Premises, specifically including any condominium associations or
condominium unit owners. Grantor agrees that the existence and binding nature of the restrictions
contained in this Easement will be referenced by Grantor in any subsequent lease, deed or legal
instrument by which Grantor divests itself of title to or possessory interest in the Premises, or any
part thereof. In the event of the termination of Grantee's existence, the City of Clearwater, Florida,
shall be deemed to be Grantee's successor m interest under this Easement.
12. This Easement shall be governed by and construed in accordance with the laws of
the State of Florida. Any action, in equity or law, with respect to this Easement must be brought
and heard in Pinellas County, Florida. The prevailing party in any such litigation shall be entitled
to all costs thereof, including, but not limited to, reasonable attorneys' fees and court costs at all
trial and appellate levels.
[The remainder of this page is intentionally left blank]
[0P06-9601-015/218920/1] Page 4 of 7
IN WITNESS WHEREOF, the parties have executed this Easement.
Signed, sealed & delivered
In the Presence of:
GRANTOR
Clearwater Tower LLC
33 N. Garden Ave., Ste. 120
Clearwater, FL 33755
STATE OF
COUNTY OF
Print Name: ,8-‘4,50
The foregoin instrument was acknowledged before
20 6 , by /(`ta,i 109/L. (name). He/She
produced as identification.
Signed, sealed & delivered
In the Presence of:
[0P06-9601-015/218920/1] Page 5 of 7
Notary Publi , State of /-j
My Commission Expires: '/, J •0%"
GRANTEE
Clearwater Community Redevelopment
Agency, •ublic body corporate and politic
ofS of`ori a
Name: Amanda C. Thompson, Director
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this Say of 044u4,224 ,
2019 , by Amanda C. Thompson, as the Director of the Clear4ter Comity
Redevelopment Agency, and who has acknowledged that she executed same on behalf of said
Agency, and that she was authorized to do so. She is personally known to me.
[0P06-9601-015/218920/1] Page 6 of 7
Notary Pull, Stab of ri
My Commission Expires:
Notary Public State of Florida
49
Anne J Fogarty France
!• My Commission GG 207014
p
1'we Expires 0512412022
Exhibit A
Legal Description
Lot 2, CLEARWATER TOWER, according to the map or plat thereof, as recorded in Plat
Book 104, pages 80 and 82, Public Records of Pinellas County, Florida.
[0P06-9601-015/218920/1] Page 7 of 7
AGREEMENT 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 Clearwater Tower
LLC ("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 33 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.
[GM15-9216-050/222075/1] 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
November 13, 2018 and approved by the CRA Director, with or without modification,
on December 18, 2018, 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
[GM15-9216-050/222075/1] 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 $25,000 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:
[GM15-9216-050/22207511] 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
[GMI5-9216-050/222075/1) 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
[GM15-9216-050/222075/1] 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 fmancially 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.
[GM15-9216-050/222075/1] 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 fmancing. 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.
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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) To the Applicant:
Clearwater Tower LLC
33 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
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.
[GM15-9216-050/222075/1] 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. Goveming 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.
[GM15-9216-050/222075/1] 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:
Approved as to form:
p��
Michael P. Fuino
Assistant City Attorney
[GM 15-9216-050/222075/ 1 ]
By:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
manda C. Thompson
Director
Attest:
Rosemarie Call
City Clerk
Page 10 of 12
WITNESSES:
Sign name:
Print name: i i4 / Wv/AP-E__.
Sign name: 1/11
Print name
STATE OF
riots 414
COUNTY OF pint./ IcKS
APPLICANT:
CLEARWATER TOWER LLC
By:
Brian Andrus
Title: Owner
The foregoing in trument was acknowledged before me this (2,7"tiay of
, 20 j5, by Brian Andrus, as the property owner of 33 N. Garden Ave., and
who has acknowledged that he/she has executed •• = : : - • f the company, and that
he/she was authorized to do so. He/Sh ' personally known tom s produced
as identi
Notary 'u. 'c, State o Florida
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.
0
[GM15-9216-050/222075/11 Page 11 of 12
Notary Public State of Florida
Linda Kay Clark
My Commission GG 204694
Expires 04/08/2022
Exhibit A
Legal Description
Lot 2, CLEARWATER TOWER, according to the map or plat thereof, as recorded in Plat
Book 104, pages 80 and 82, Public Records of Pinellas County, Florida.
[GM15-9216-050/222075/1] Page 12 of 12