SANDRA D AND JAMES E WINKELMANN
KARLEEN F. DE BLAKER, CLERK OF COURT
PMUAS COUNTV, FLORIDA
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This Instrument Prepared By' ry:, ,~~,n ,-' -.'''
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MOHIP & BURNETT, P.A. ::"'C>12S :J4~O'1l~
215 Verne Street, Suite B I')
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Tampa, Florida 33606 ',c, _____.'.._
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ParcelIdentlflcation No.. I - < U \J 0 1-45 1 B2S OE:C-27-200 1 2: 20p
PINE:LLRS co BK 11753 PO 1B1~
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TOT It:
Cl(CI( AMT. TENImD:
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BY -is-- DEPUTY llERK
$609 .00
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Grantee's Taxpayer
Identification No.:
WARRANTY DEED
THIS INDENTURE, made this ;7 day of ....~c'...."'~(t2000, between Sandra D.
Winkelmann and James E. Winkelmann, husband and wife, whose mailing address is 835
Lancaster Pike Quarryville, PA 17566-9737 (collectively, "Grantor") and the City of
"clearwater, a Florida municipal corporation whose mailing address is 112 South Osceola
'Q-J Avenue, Clearwater, Florida 33756-5103 ("Grantee").
WITNESSETH, that said Grantor, for and in consideration of the sum of Ten Dollars
($10.00) in hand paid by the Grantee and other valuable considerations, the receipt whereof is
acknowledged, hereby grants, bargains, sells and conveys to the said Grantee, forever, the
following described land located in Pinellas County, Florida (the "Property"), to-wit:
Lot 5, SPENCER HEIGHTS, according to the map or plat thereof as recorded
in Plat Book 66, page 102, of the public records of Pinellas County, Florida.
together with all tenements, herediments, and appurtenances thereto, subject to: (i) all existing
easements, covenants, conditions, restrictions, or rights-of-way affecting the Property; (ii) any
new easements, covenants, conditions, restrictions, or rights-of-way affecting the Property; (iii) all
applicable zoning and land-use regulations affecting the Property; (iv) all survey matters affecting
the Property; (v) all real estate taxes and other governmental assessments in any way affecting the
Property, not yet due and payable; and (vi) any and all encumbrances and/or other matters of
record.
TO HA VE AND TO HOLD the Property with appurtenances, unto the said Grantee, its
successors, heirs, personal representatives and assigns, forever.
AND SAID GRANTOR does hereby fully warrant the title to the Property and will
defend the same against the lawful claims of any person whomsoever.
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~IN~LLRS COUNTY rLR
Orr ,R~C ,8K 1175:3 ~C3 1E3 1:3
IN WITNESS WHEREOF, Grantor has executed this instrument the day and year above.
SIGNED, SEALED, AND DELIVERED
IN THE PRESENCE OF:
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(signature of witness )
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(print of type name of witn~ss #1)
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(s{gnature of witness #2)
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(print of type name of witness #2)
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(signature of witness '#1)
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(print of type name of witne~ #1)
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(signature of witness #2)
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(print of type name of witness #2)
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Sandra D. Winkelmann
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~IN~LLRS COUNTY rLR
Orr,~~C.eK 11?53 ~~ 1814
STATE OF PENN~YL V ANIA
COUNTY OF ~",y~~-?
The foregoing instrument was acknowledged before me this 2- day of ..hi: ~.K~
2000, by James E. Winkelmann, who P<1 is personally known to me or [ ] has produced
as identification.
Notarial Se,,:
Richard H. Ww c,';'; ;"'n[,,\ Public
Drumore TVIV '", , ". it;' County
MyCcmm!ssl.r" "'" ,)&',29, 2004
_., _.,._k_ __.. ...~
Member. PennSV,V[,''Hi'',;,,;c;c)1ic.n 01 Notaries
Notary Official's Seal:
STATEOFPE~AN~
COUNTY OF ~ ~
,
The foregoing instrument was acknowledged before me this 1 day of ~t?,p~4
2000, by Sandra D. Winkelmann, who ~ is personally known to me or [ ] has produced
as identification.
Notarial Seal .
lichard H. Wenger. Notary:>ubhc
')rumore 1Wp., Ldncaster County
~commission Exp.res Jan. 29. 2004
Member, PennsYI~ania ASSOCiation ot Notanes
~
Print or Type Notary's N
State of Pennsylvania
Notary Official's Seal:
N
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3
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
THIS MUTUAL RELEASE AND SETILEMENT AGREEMENT, is made this _ day of
November, 2000, by the City of Clearwater, a Florida municipal corporation (the
"City"), Richard J. Baier, individually ("Baier"), Sandra D. Winkelmann and
James E. Winkelmann, individually (the "Winkelmanns"), and Clearwater Charter
Yacht, Inc., a Florida corporation ("Clearwater Yacht").
Backl:round
A. The Winkelmanns and Clearwater Yacht are plaintiffs in a lawsuit styled Sandra D.
Winkelmann and James E. Winkelmann, and Cleanvater Charter Yacht, a Florida
corporation, v. City of Cleanvater, a Florida municipality, and Richard J. Baier,
individually (Case No. 98-7138-CI-ll) that was filed by them against the City on October
21, 1997 (the "Lawsuit"). The
B . The Winkelmanns and Clearwater Yacht are sometimes referred to herein
collectively as "Plaintiffs."
C. Baier was added as a party defendant when the Winkelmanns and Clearwater Yacht
filed their Third Amended Complaint on April 11 , 2000.
D. The City and Baier are sometimes referred to herein collectively as "Defendants."
E. The Winkelmanns own the real estate and improvements located at 601-603
Spencer A venue, Clearwater, Florida (the "Winkelmann Property").
F. Clearwater Yacht owns the real estate and improvements located at 601-603
Spencer A venue, Clearwater, Florida (the "Clearwater Yacht Property").
G . The Winkelmann Property and the Clearwater Yacht Property are sometimes
referred to herein collectively as the "Properties."
H. The Lawsuit pertains to the Plaintiffs' allegations that the City has taken actions
which have rendered the Properties uninhabitable.
I. Defendants and Plaintiffs desire to resolve all disputes between them, and mutually
release each other from all claims, relating to the Lawsuit.
J. Defendants and Plaintiffs have agreed that it is in their best interests to settle the
various disputes between them relating to the Lawsuit.
K. Defendants and Plaintiffs have arrived at a mutually acceptable settlement
agreement. This mutual release and settlement agreement (the "Settlement Agreement") is
being entered into in order to memorialize in writing the terms and conditions of that
settlement agreement.
L. Defendants and Plaintiffs are sometimes referred to herein collectively as the
"Parties. "
NOW THEREFORE, in consideration of the mutual covenants contained in this Settlement
Agreement, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Defendants and Plaintiffs agree as follows:
Mutual Release and Settlement Agreement
Winkelmann et al. vs. City of Clearwater et al.
November, 2000
Page 2 of 11
A2reement
1. Back2round. The Background described above IS true and correct and IS
hereby incorporated into this Settlement Agreement.
2. Settlement Payment. The City hereby agrees to pay Plaintiffs, by money
order, certified funds or official bank check, a settlement payment (the "Settlement
Payment") equal to Three Hundred Thousand and NollOO Dollars ($300,000.00). The
Settlement Payment shall be payable and delivered to "Mohip & Burnett, P.A., Trust
Account." Provided that all of the terms and conditions of this Settlement Agreement have
been met and/or satisfied, there shall be no restriction on Plaintiffs' counsel, Mohip &
Burnett, P.A., in disbursing the Settlement Payment pursuant to Plaintiffs' instructions.
3. Conveyance of Title to the Properties. The Settlement Payment to the
Plaintiffs is being made in exchange for the conveyance of title to the Properties from
Plaintiffs to the City. The City is acquiring the Properties in order to undertake and
complete a municipal public works project relating to improvements to its stormwater
drainage system. Therefore, simultaneous with receipt by Plaintiffs of the Settlement
Payment, and prior and as a precondition to disbursement of the Settlement Payment by
Mohip & Burnett, P.A., Plaintiffs will convey title to the Properties to the City by general
warranty deed.
4. No Admissions. Nothing in this Settlement Agreement shall operate, or be
construed, as an indication, inference, presumption, admission, or as evidence relative to
any issue of liability on the part of any party to this Settlement Agreement. Each party
expressly denies any and all liability to the other parties to this Settlement Agreement.
5. Release. The Parties agree, to release each other as follows:
(a) Release of the City and Baier by Plaintiffs. Plaintiffs and their heirs,
executors, administrators, successors in interest and/or assigns, hereby fully release, settle
and discharge any and all claims, demands, actions, agreements, damages, liabilities and/or
obligations, at law and in equity, known or unknown, direct or derivative, whether arising
by claim, counterclaim, or cross-claim, that relate in any way to the Lawsuit. This release
by Plaintiffs pertains to the City and Baier. Notwithstanding this Settlement Agreement or
any of the provisions set forth herein, Plaintiffs do not release (i) the City, its officers,
directors and employees; or (ii) Baier, or any of their successors in interest and/or assigns,
from any claims arising from a breach of this Settlement Agreement or from any claims
arising after the execution of this Settlement Agreement.
(b) Release of the Plaintiffs by the City and Baier. The City, its officers,
directors and employees, and Baier, together with their successors in interest and/or
assigns, hereby fully release, settle and discharge any and all claims, demands, actions,
agreements, damages, liabilities and/or obligations of any nature whatsoever, at law and in
equity, known or unknown, direct or derivative, whether arising by claim, counterclaim, or
cross-claim, that relate in any way to the Lawsuit. Notwithstanding this Settlement
Agreement or any of the provisions set forth herein, the City and Baier do not release
Plaintiffs or their heirs, executors, administrators, successors in interest and/or assigns
from any claims arising from a breach of this Settlement Agreement or from any claims
arising after the execution of this Settlement Agreement.
Mutual Release and Settlement Agreement
Winkelmann et al. vs. City of Clearwater et al.
November, 2000
Page 3 of 11
6. Assumption of Risk. Waiver and Estoppel. Defendants and Plaintiffs
acknowledge and agree that the releases included in this Settlement Agreement are complete
releases as to any and all claims herein. Defendants and Plaintiffs agree also that they have
executed this Settlement Agreement as an accord and satisfaction, settlement and
compromise of matters involving disputed issues of law and fact, and that they have
knowingly, willingly and expressly assumed the risk that actual facts relevant to this
dispute may be different from their understanding of the facts upon which their decision to
enter into this Settlement Agreement is based. Defendants and Plaintiffs waive all rights
relating to any misunderstanding with respect to the facts. Additionally, Defendants and
Plaintiffs acknowledge, agree, represent, warrant and covenant that they have not been
pressured, coerced, compelled, or otherwise forced into entering into this Settlement
Agreement.
7. Dismissal. Within ten days from the Closing Date, Plaintiffs will dismiss the
Lawsuit, with prejudice.
8. Closine Date. The City shall pay the Settlement Payment to Plaintiffs, and
Plaintiffs shall convey title to the Properties to the City, on or before December 11, 2000,
or such other date as is mutually agreed to by the Parties (the "Closing Date"). In no event
shall the Closing Date be later than December 18, 2000. Except as otherwise expressly set
forth herein, this Settlement Agreement shall become effective, and Defendants and
Plaintiffs shall be bound hereby, only upon payment of the Settlement Payment by the City
to Plaintiffs, and conveyance of title to the Properties by Plaintiffs to the City.
9. Closine Costs. The City shall pay any and all closing costs associated with
conveyance of title to the Properties by Plaintiffs to the City. Such costs shall include,
without limitation, all state documentary stamp taxes, all recording fees, and all charges and
fees relating to title and survey.
10. Conveyance Document. The Properties shall be conveyed to the City by
general deed, subject to: (i) all existing easements, covenants, conditions, restrictions, or
rights-of-way affecting the Properties; (ii) any new easements, covenants, conditions,
restrictions, or rights-of-way affecting the Properties; (iii) all applicable zoning and land-
use regulations affecting the Properties; (iv) all survey matters affecting the Properties; (v)
all real estate taxes and other governmental assessments in any way affecting the
Properties, not yet due and payable; and (vi) any and all encumbrances and/or other
matters of record not specifically objected to in writing by the City prior to the Closing
Date. The Properties shall be conveyed "AS IS" with respect to the physical condition of
the Properties.
11. Entire Understandine. This Settlement Agreement contains the entire
understanding between the Parties with respect to the matters addressed herein. This
Settlement Agreement may not be changed orally. This Settlement Agreement may only be
changed in writing signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought. This Settlement Agreement supersedes, in
all respects, all written or oral understandings and agreements previously existing betweenithe Parties in connection with the dispute relating to the Lawsuit.
12. Damaees. The Parties acknowledge that the performance of their respective
obligations under this Settlement Agreement is essential to the consummation of the
agreement between the Parties. Each party hereto further acknowledges that it is possible
Mutual Release and Settlement Agreement
Winkelmann et al. vs. City of Clearwater et al.
November, 2000
Page 4 of 11
that neither party will have an adequate remedy at law if the other party fails to perform its
obligations under this Settlement Agreement. In the event that either party fails to perform
its obligations hereunder, each party shall have the right, in addition to any other rights or
remedies it may have, to compel specific performance of this Settlement Agreement.
13. Expenses. Each of the Parties to this Settlement Agreement shall pay its own
expenses in connection with arriving at and entering into this Settlement Agreement,
including fees and expenses of its counsel.
14. Jurisdiction and Venue. The Parties agree that jurisdiction and venue for any
action arising out of or related to this Settlement Agreement shall lie exclusively in Circuit
or District Courts of Pinellas County, Florida.
15. Governin2 Law. This Settlement Agreement shall be performed exclusively in
the State of Florida. The validity, construction, and enforcement of, and the remedies
under, this Settlement Agreement shall be governed in accordance with the laws of the State
of Florida.
16. Successors and Assi2ns. The rights and obligations of the Parties under this
Settlement Agreement shall inure to the benefit of, and be binding and enforceable upon,
the respective successors, assigns, and transferees of the Parties.
17. Authority. Each party hereto warrants and represents to the other parties that it
has full and complete authority to enter into this Settlement Agreement, and that no further
actions or approvals by such party are required as a precondition to entering into, or
fulfilling all of the obligations, set forth herein.
18. Survivability of Representations. Warranties. Etc. Defendants and
Plaintiffs covenant and agree that the representations, warranties, covenants, statements
and agreements contained in this Settlement Agreement shall survive the Closing Date.
19. Attorneys' Fees. In the event of arbitration or litigation relating to this
Settlement Agreement, the prevailing party shall be entitled to recover from the other party
all reasonable costs and expenses of such arbitration or litigation, including reasonable
attorneys' fees and costs of appeal. The term "attorneys' fees" shall include, but not be
limited to, fees for collection, pretrial services, trials, appeals, bankruptcy, or other legal
proceedings.
20. Mediation. In the event of any dispute arising under this Settlement Agreement,
the Defendants and Plaintiffs agree that, as a precondition to initiating arbitration or
litigation, the Parties will schedule and attend mediation. Each of the Parties to this
Settlement Agreement will make a good-faith effort to resolve the dispute at such
mediation. Each party must be represented at the mediation by a representative with
authority to agree to, and enter into, a binding settlement agreement in connection with the
dispute. The mediator will be a person or firm with mediation experience mutually agreed
to by the Parties. The mediation will take place in either Pinellas or Hillsborough County,
Florida, as determined by the agreement of the Parties, and at a time and place agreed to by
the Parties. Each party shall pay its proportional share of the costs of any such mediation.
The time period for accomplishing mediation will commence when one party makes written
demand upon the other parties for mediation. The mediation will occur within twenty (20)
days following the date of such demand or as soon thereafter as the Parties and the
Mutual Release and Settlement Agreement
Winkelmann et al. vs. City of Clearwater et al.
November, 2000
Page 5 of 11
mediator can schedule such mediation. If the Parties cannot agree on a mediator within five
(5) days after written demand for mediation, then within five (5) days thereafter the
Plaintiffs and Defendants shall each designate a mediator, and the two (2) mediators so
designated shall designate a third mediator. The third mediator so designated shall mediate
the dispute.
21. Counterparts and Facsimiles. This Settlement Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original instrument,
but all such counterparts together shall constitute one and the same instrument. A facsimile
copy of this Settlement Agreement and any signatures hereon shall be considered for all
purposes as an original.
22. Headings. Descriptive headings are for convenience only and shall not control
or affect the meaning of construction of any provision of this Settlement Agreement.
23. Interpretation. Whenever the context hereof shall so require, the singular shall
include the plural, the male gender shall include the female gender and neuter and vice
versa. This Settlement Agreement and any related instruments shall not be construed more
strictly against any party regardless of who was more responsible for its preparation, it
being recognized that this Settlement Agreement and any related instruments are the product
of extensive negotiations between the Parties hereto and that all parties have contributed
substantially and materially to the final preparation of this Settlement Agreement and all
related instruments.
24. No Waiver. The waiver by any party to this Settlement Agreement of a breach
of any of the provisions herein shall not operate or be construed as a waiver of any
subsequent breach.
25. Conditions Precedent to Settlement Agreement. Except as is expressly
set forth in paragraph 26 below, this Settlement Agreement shall not be effective until it is
properly executed by each party, the City has delivered the Settlement Payment to Mohip &
Burnett, P.A., and Plaintiffs have conveyed title to the Properties to the City.
26. Specific Performance. In the event that Plaintiffs are ready and able to
convey title to the Properties to the City on the Closing Date in accordance with the terms
and conditions set forth this Settlement Agreement, and the City fails or refuses to pay the
Settlement Payment to Mohip & Burnett, P.A., as required herein, then Plaintiffs shall be
entitled to bypass the mediation requirement set forth above and seek specific performance
in court immediately. Conversely, in the event that the City delivers the Settlement
Payment to Mohip & Burnett, P.A., on the Closing Date in accordance with the terms and
conditions set forth this Settlement Agreement, and the Winkelmanns and/or Clearwater
Yacht fail or refuse to convey title to the Properties to the City, as required herein, then the
City shall be entitled to bypass the mediation requirement set forth above and seek specific
performance in court immediately.
27. Notices. Any notice or other communication given to any party hereto relating
in any way to this Settlement Agreement shall be sufficient if in writing, and if hand-
delivered, sent by FedEx or comparable overnight carrier, or sent by registered or certified
mail, return receipt requested, to the intended party at the address set forth below, or at
such other address as a party may designate in writing in accordance with the provisions of
this paragraph.
Mutual Release and Settlement Agreement
Winkelmann et al. vs. City of Clearwater et al.
November, 2000
Page 6 of 11
If to the City:
Paul Richard Hull
Assistant City Attorney
City of Clearwater
City Attorney's Office
112 South Osceola Avenue
Clearwater, FL 33756-5103
If to Baier:
Richard J. Baier, P.E.
Director, Transportation & Environmental Services
City of Alexandria
301 King Street
City Hall
Room4100
Alexandria, VA 22314
If to the Winkelmanns:
Sandra D. and James E. Winkelmann
835 Lancaster Pike
Quarryville, PA 17566-9737
If to Clearwater Yacht:
Frank J. Moynahan
President
Clearwater Charter Yacht, Inc.
430 Larboard Way
Island Estates
Clearwater, FL 33767-2153
28. Binding Effect. This Settlement Agreement shall be binding upon the Parties
hereto and their respective heirs, devisees, legal representatives, personal representatives,
successors in interest and/or assigns.
29. Time of Essence. All times and dates in this Settlement Agreement shall be of the
essence.
30. Severability. If any part of this Settlement Agreement is determined to be illegal
or unenforceable, all other parts of this Settlement Agreement shall be given effect
separately and shall not be affected.
The undersigned being duly authorized to execute this instrument, have carefully read
the foregoing Settlement Agreement, fully understand it, have received the extensive advice
of counsel regarding this matter, and have knowingly and voluntarily entered into this
Settlement Agreement intending to be legally bound hereby.
Mutual Release and Settlement Agreement
Winkelmann et al. vs. City of Clearwater et al.
November, 2000
Page 7 of 11
IN WITNESS WHEREOF, the Parties have executed this Mutual Release and
Settlement Agreement this day of November, 2000.
(print of type name of wi ess # 1)
~~ !3~~
(sigrl'ature of witness #2)
v,." ( .( 8r6Wo"\
(print of type name of witness #2)
"THE WINKELMANNS"
~~O. L-0~
Sandra D. Winkelmann, individually
pe~~",JI'''
Date: l'b: 1.r 7, 2000
/? d' ;:c>-,~ <'.
(print of type name of witn
%~L3~
(signature of witness #2)
0'''' ( ~ 13J-ow,^
(print of type name of witness #2)
"THE WINKELMANNS"
STATEOFPENN~V~
COUNTY OF ..,c#?J/~
-? .Pe~~#Ik
The foregoing instrument was acknowledged befqre me this ~ day of ~"'lIlbt,f,
2000, by James E. Winkelmann, who ~ is personally IsD9'wn to me or [ ] has
produced ~ . entificati .
/.
No:al.a' Seal
Richard H. Wengtl:, N~'lary Public
Drumore Twp., Lancaster County
(, ' ''''',."ission Expires Jan, 29 :)004
Memt;~, ~,~,,"''''ia Association ot Notaries
Notary Official's Seal:
I
Mutual Release and Settlement Agreement
Winkelmann et al. vs. City of Clearwater et al.
November, 2000
Page 8 of 11
STATEOFPE~ANIAA'
COUNTY OF ~/h
- . ~ PeczPA!~t4'17
The foregoing instrument was acknowledged before me thIS day Of~JA il~er,
2000, by Sandra D. Winkelmann, who rt(f is person y kn~ to me or [ ] has
produced / as id ntification
Notarial Seal
Richard I-i, Wenger, Notary Public
Drumore i'"I, :'''caster County
My Commlsslol l ,', ..l~n. 29, 2004
Member, PennsylVania ASscclat.'on ot Notaries
Notary Official's Seal:
I
Mutual Release and Settlement Agreement
Winkelmann et al. vs. City of Clearwater et al.
November, 2000
Page 9 of 11
Clearwater Charter Yacht, a Florida
corporation
(signature of witness #1)
By:
Frank Moynahan
As its: President
(print of type name of witness #1)
Date: November
,2000
(signature of witness #2)
"CLEARWATER YACHT"
(print of type name of witness #2)
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of November,
2000, by Frank Moynahan, as president and on behalf of the Clearwater Charter
Yacht, Inc., a Florida corporation. He [ ] is personally known to me or [ ] has
produced as identification.
Notary Official's Seal:
Notary Signature
Print or Type Notary's Name
State of Florida
Mutual Release and Settlement Agreement
Winkelmann et al. vs. City of Clearwater et al.
November, 2000
Page 10 of 11
Richard J. Baier, individually
(signature of witness #1)
(print of type name of witness #1)
Date: November
,2000
(signature of witness #2)
(print of type name of witness #2)
"BAIER"
STATE OF VIRGINIA
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of November,
2000, by Richard J. Baier, who [ ] is personally known to me or [ ] has produced
as identification.
Notary Official's Seal:
Notary Signature
Print or Type Notary's Name
State of Virginia
~
Mutual Release and Settlement Agreement
Winkelmann et al. vs. City of Clearwater et al.
November, 2000
Page 11 of 11
WITNESSES:
(signature of witness #1)
(print of type name of witness #1)
(signature of witness #2)
(print of type name of witness #2)
STATE OF FLORIDA
COUNTY OF PINELLAS
City of Clearwater, a Florida
municipality
By:
(print or type name)
As its:
(print of type title)
Date: November
,2000
"THE CITY"
The foregoing instrument was acknowledged before me this _ day of November,
2000, by , as and on behalf of
the City of Clearwater, a Florida municipality. He/She [ ] is personally known to me
or [ ] has produced as identification.
Notary Official's Seal:
Notary Signature
Print or Type Notary's Name
State of Florida