AGREEMENT FOR FACADE IMPROVEMENTS (2)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 888 Business
LLC("APPLICANT").
WHEREAS, APPLICANT is the owner 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 808-814 Court St., 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.
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"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 June
12, 2019 and approved by the CRA Director, with or without modification, on June 17,
2019, 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 desijin, 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
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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:
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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
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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
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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.
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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.
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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:
888 Business LLC
628 Cleveland St., #1406
Clearwater, FL 33755
To the AGENCY:
Amanda C. Thompson Director
Community Redevelopment Agency
City of Clearwater
P.O. Box 4748
Clearwater, FL 33758
With copy to:
CRA Attorney
Office of the City Attorney
City of Clearwater
P.O. Box 4748
Clearwater, FL 33758
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.
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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 ariy 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.
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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.
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF C ARWATER, FLORIDA
Countersigned:
Approved as to form: Attest:
Michael P. Fuino
CRA Attorney
By:
Amanda C. Thompson
Director
Rosemarie Call
City Clerk
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Page 10 of 12
WITNESSES:
Sign name:
Print name:
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Sign name: t icvi 04,
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COUNTY OF (( (k5
APPLICANT:
888 BUSINESS LLC
Title: Member -Manager
44/
The foregoing instrument was acknowledged before me this 2a day of
0(1.12 , 20 J ° , by Sherry Lung, as the member -manager of 808-814 Court St., and
who has acknowledged that he/she has executed the same on behalf of the company, and that
he/she yas a orized to do so. He/She is personally known to me or has produced
as identification.
DL
a
**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.
MARGARITA KELLY
Notary Public, State of Florida
Commission# FF 949236
My comm. expires Jan. 10, 2020
ublic, State of Florida
Stamp
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Lots 7 through 13, inclusive,, -Block 10, AIKEN SUBDIVISION, according
to the plat thereof,‘ -is recorded\in Plat Book 14, page 45, of the
Public Records of Pinellas/County, Florida ,
Exhibit A
Legal Description
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