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ASSIGNMENT AND ASSUMPTION AGREEMENTASSIGNMENT AND ASSUMPTION AGREEMENT THIS AGREEMENT is entered this I day of ,t , 2023 ("the Effective Date") between the City of Clearwater, a municip corporation, whose address is 100 S Myrtle Avenue, Clearwater, Florida 33756 ("the City") and Little Eagle Associates, LLC, a Florida limited liability company, whose address is 2076 Sunset Point Road #143, Clearwater, Florida 33765 ("the Developer") (each individually a "Party" and collectively, "the Parties"). RECITALS WHEREAS, the City is the owner of a mortgage, and of the indebtedness secured by it, made by Willie B. Holmes ("Holmes") to the City for Eighty Thousand and 00/100 Dollars ($80,000.00), on January 7, 2002 and recorded in Mortgage Book 11810, Page 1767 of the Public Records of Pinellas County, Florida; and WHEREAS, Holmes' death has led to the acceleration and foreclosure of the indebtedness secured by the mortgage; and WHEREAS, the City has instituted a foreclosure action against Holmes' estate in City of Clearwater v. Estate of Holmes, et al., Case No. 18 -7484 -CI (Fla. 6th Jud. Cir.) ("the Foreclosure Action"); and WHEREAS. the Developer desires to develop the property encumbered by the Holmes' mortgage (the "Holmes Property") into a townhome development (referred to herein as "the Project"); and WHEREAS, the Parties agree that the objectives of a successful resolution of the Foreclosure Action and the development of the Project would be furthered by the assignment of the Holmes' mortgage and the indebtedness secured by it from the City to the Developer on the terms and conditions set forth in this Agreement; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties hereby agree as follows: I. GENERAL 1. Recitals. The foregoing recitals are true and correct and are incorporated in and form a part of this Agreement. 2. Intent; Objective of Agreement. The objective of this Agreement is to successfully resolve the Foreclosure Action and to complete development of the Project while also providing for certain affordable housing solutions for the City's residents. II. DEVELOPER'S RESPONSIBILITIES 1. Development of the Project. The Developer shall redevelop the Holmes Property in conformity with the Project and obtain a final certificate of occupancy from the City within forty-eight (48) months of taking final unappealable title to the property. The development of the final Project may incorporate parcels which are adjacent to the Holmes Property, but the incorporation of additional parcels is not required and shall have no effect on Developer's obligations under this Agreement. 2. Affordable Housing Component. Ten percent (10%) of the total units of the Project shall be set aside for households whose total household income does not exceed one hundred twenty percent (120%) of the area median income as determined by the United States Department of Housing and Urban Development. 3. Substitution as Party -Plaintiff. The Developer shall immediately cause itself to be substituted as the party -plaintiff in the Foreclosure Action and will be solely responsible for the Foreclosure Action's prosecution. The City will cooperate with Developer to effectuate the substitution of Developer as party -plaintiff in the Foreclosure Action. III. CITY RESPONSIBILITIES 1. Assignment of the Holmes' Mortgage and the Indebtedness. The City shall assign the Holmes' mortgage and the indebtedness secured by it to the Developer for no further consideration other than the Developer's responsibilities outlined in Section II of this Agreement. IV. DEVELOPER DEFAULT 1. Failure to Obtain Final Certificate of Occupancy. If the Developer fails to obtain a final certificate of occupancy from the City within forty-eight (48) months of taking final unappealable title to the property, then the Parties agree that the Developer shall be in default under this Agreement. 2. Other Events of Default. In addition to the foregoing events of default, the occurrence of any one or more of the following events after the Effective Date shall also constitute an event of default by the Developer: A. The Developer shall: i. Make a general assignment for the benefit of its creditors; or ii. Admit in writing its inability to pay its debts as they become due; or iii. File a petition in bankruptcy; or iv. Be adjudicated as bankrupt or insolvent; or v. File a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation; or vi. File an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding; or vii. Seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or B. Within sixty (60) days after the commencement of any proceeding by or against the Developer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed or otherwise terminated, or if, within sixty (60) days after the appointment without the consent or acquiescence of the Developer of any trustee, receiver or liquidator of any of such entities or of any material part of any of such entity's properties, such appointment shall not have been vacated. 3. City's Remedy Upon Developer Default. In the event of the Developer's default, the City shall be entitled to payment of Sixty -Nine Thousand Six Hundred Eighty -Seven and 81/100 Dollars ($69,687.81) (the "Remedy Amount"). Such payment of the Remedy Amount by Developer shall be due and payable in four (4) equal quarterly installments commencing thirty (30) days from the event of default. 4. Notice of Default and Opportunity to Cure. The City shall provide written notice of any default under this Agreement and provide the Developer thirty (30) days from the date the notice is sent to cure the default. This notice will be deemed sent when sent by first class mail to the Developer's notice address or when delivery is acknowledged by the Developer if sent by a different means. V. EVENTS NOT CONSTITUTING DEVELOPER DEFAULT 1. Failure in Probate Proceeding. If the Developer is not successful in the probate proceeding and is unable to obtain title to the Holmes Property, the Parties hereto shall have no further obligations under this Agreement and this Agreement shall be automatically terminated. 2. Failure in Foreclosure Proceeding. If the Developer is not successful in a foreclosure proceeding and is unable to obtain title to the Holmes Property following a foreclosure sale in which Developer bid at least $69,687.81, the Parties hereto shall have no further obligations under this Agreement and this Agreement shall be automatically terminated. However, should Developer be successful in the Foreclosure proceeding, but unable to obtain title to the Holmes Property, the City shall be entitled to the proceeds of the foreclosure up to $69.687.81, and Developer shall be entitled to all other proceeds that may be claimed by the City or Developer pursuant to any final judgment of foreclosure or other court order obtained through Developer's efforts as assignee including, but not limited to, attorney's fees, costs, and accrued interest. VI. MISCELLANEOUS 1. Notices. All notices, demands, requests for approvals or other communications given by either party to another shall be in writing, and shall be sent to the office for each party indicated below and addressed as follows: To the Developer: Charles Uslander 2076 Sunset Point Rd #143 Clearwater, Florida 33765 To the City: The City of Clearwater P.O. Box 4748 Clearwater, Florida 33758 Attention: City Manager with copies to: Brian Aungst, Jr. 625 Court Street, Suite 200 Clearwater, Florida 33756 with copies to: City Attorney 2. Unavoidable Delay. Any delay in performance of or inability to perform any obligation under this Agreement (other than an obligation to pay money) due to any event or condition described in this Section as an event of "Unavoidable Delay" shall be excused in the manner provided in this Section. "Unavoidable Delay" means any of the following events or conditions or any combination thereof: acts of God, acts of the public enemy, riot, insurrection, war, pestilence, archaeological excavations required by law, unavailability of materials after timely ordering of same, building moratoria, epidemics, quarantine restrictions, freight embargoes, fire, lightning, hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement weather (as indicated by the records of the local weather bureau for a five year period preceding the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73 and 74, Florida Statutes, restoration in connection with any of the foregoing or any other cause beyond the reasonable control of the party performing the obligation in question, including, without limitation, such causes as may arise from the act of the other party to this Agreement, or acts of any governmental authority (except that acts of the City shall not constitute an Unavoidable Delay with respect to performance by the City). An application by any party hereto for an extension of time pursuant to this Section must be in writing, must set forth in detail the reasons and causes of delay, and must be filed with the other party to this Agreement within thirty (30) days following the occurrence of the event or condition causing the Unavoidable Delay or thirty (30) days following the party becoming aware (or with the exercise of reasonable diligence should have become aware) of such occurrence. The party shall be entitled to an extension of time for an Unavoidable Delay only for the number of days of delay due solely to the occurrence of the event or condition causing such Unavoidable Delay and only to the extent that any such occurrence actually delays that party from proceeding with its rights, duties and obligations under this Agreement affected by such occurrence. In the event the party is the Developer then the City Manager or the City Manager's designee is authorized to grant an extension of time for an Unavoidable Delay for a period of up to twelve (12) months. Any further requests for extensions of time from the Developer must be agreed to and approved by the City Council. 3. Indemnification. The Developer agrees to assume all risks of inherent in this Agreement and all liability therefore, and shall defend, indemnify, and hold harmless the City, and the City's officers, agents, and employees from and against any and all claims of loss, liability and damages of whatever nature, to persons and property, including, without limiting the generality of the foregoing, death of any person and loss of the use of any property, except claims arising from the negligence of the City or the City's agents or employees. This includes, but is not limited to, matters arising out of or claimed to have been caused by or in any manner related to the Developer's activities or those of any approved or unapproved invitee, contractor, subcontractor, or other person approved, authorized, or permitted by the Developer whether or not based on negligence. Nothing herein shall be construed as consent by the City to be sued by third parties, or as a waiver or modification of the provisions or limits of Section 768.28, Florida Statutes or the Doctrine of Sovereign Immunity. 4. Assignability; Complete Agreement. A. This Agreement shall be assignable by Developer to any corporate entity which Developer holds a majority ownership interest in. B. Subject to Section VI(4)(A) herein, this Agreement is non -assignable by either Party unless expressly agreed to in writing, and constitutes the entire Agreement between the Developer and the City and all prior or contemporaneous oral and written agreements or representations of any nature with reference to the subject of the agreement are canceled and superseded by the provisions of this agreement. 5. Successors and Assigns. This Agreement inures to the benefit of and is binding upon the Parties, their respective successors in interest by way of merger, acquisition, or otherwise, and their permitted assigns. This section does not address, directly or indirectly, whether a Party may assign its rights or delegate its performance under this Agreement. Section VI(4) addresses these matters. 6. Applicable Law and Construction. The laws of the State of Florida shall govern the validity, performance, and enforcement of this Agreement. This Agreement has been negotiated by the City and the Developer, and the Agreement, including, without limitation, the exhibits, shall not be deemed to have been prepared by the City or the Developer, but by all equally. 7. Severability. Should any section or part of any section of this Agreement be rendered void, invalid, or unenforceable by any court of law, for any reason, such a determination shall not render void, invalid, or unenforceable any other section or any part of any section in this Agreement. 8. Amendments. This Agreement cannot be changed or revised except by written amendment signed by the Parties hereto. 9. Jurisdiction and Venue. For purposes of any suit, action or other proceeding arising out of or relating to this Agreement, the Parties hereto do acknowledge, consent and agree that venue thereof is Pinellas County, Florida. Each Party to this Agreement hereby submits to the jurisdiction of the State of Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States District Court for the Middle District of Florida, for the purposes of any suit, action or other proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of a motion as a defense or 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. If, at any time during the term of this Agreement, the Developer is not a resident of the State of Florida or has no office, employee, agency, registered agent or general partner thereof available for service of process as a resident of the State of Florida, or if any permitted assignee thereof shall be a foreign corporation, partnership or other entity or shall have no officer, employee, agent, or general partner available for service of process in the State of Florida, the Developer hereby designates the Secretary of State, State of Florida, its agent for the service of process in any court action between it and the City arising out of or relating to this Agreement and such service shall be made as provided by the laws of the State of Florida for service upon a nonresident; provided, however, that at the time of service on the Florida Secretary of State, a copy of such service shall be delivered to the Developer at the address for notices as provided in Section VI(1). 10. Termination. If not earlier terminated as provided in this Agreement, the term of this Agreement shall expire, and this Agreement shall no longer be of any force and effect, on the twentieth (20th) anniversary of the Effective Date. [SIGNATURE PAGE FOLLOWS] SIGNED: THE CITY OF CLEARWATER, a municipal corporation Jennifer Poirrier City Manager Approved as to form: Attest: Mitio Michael P. Fuino Assistant City Attorney COUNTERSIGNED: Rosemarie Call City Clerk LITTL Flor , LLC, a Charles U ander STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me by means ofX physical presence or ❑ online notarization, this 1 day of besa.57i023 by Charles Uslander. He/she is personally known to me or has produced (type of identifica n) . entification. .i -fr otary ' ublic, tae orida My Commission Expires: My Commission Number: