Resolution No. 2019-09R - Related to the Use, Improvement, Maintenance and Cost Sharing of the Art Walk CLE CITY OF CLERMONT
Clnordionosor. RESOLUTION NO. 2019-09R
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CLERMONT APPROVING AN AGREEMENT WITH THE ART
DISTRICT, LLC FOR THE USE, IMPROVEMENT, MAINTENANCE
AND COST SHARING OF THE ART WALK AND AUTHORIZING
THE MAYOR TO EXECUTE THE AGREEMENT.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of
Clermont, Florida, as follows:
SECTION 1.
The City Council of the City of Clermont does hereby approve that certain agreement with The
Art District, LLC for the use, improvement, maintenance and cost sharing of the Art Walk as
more particularly described in Exhibit "A" Attached hereto. The Mayor is authorized to execute
on behalf of the City, the Agreement set forth in Exhibit"A".
SECTION 2.
The Mayor and/or City Manager are specifically authorized to withhold the formal written
agreement upon his or her determination of any matter or factor, hereafter coming to their
attention which may indicate such action is not in the City's best interest, provided that upon
such withholding, the City Manager, with reasonable dispatch, shall present the issue to the City
Council, in session, for review and direction
SECTION 3.
This Resolution shall take effect immediately upon its adoption.
1
CITY OF CLERMONT
„
(Foa{ , RESOLUTION NO. 2019-09R
PASSED AND ADOPTED by the City Council of the City of Clermont, Florida on the
26th day of February, 2019.
CITY OF CLERMONT
dor /
Gail L. Ash, yo
•
ATTEST:
Tracy AckroY�we, CityClerk
Approved as to form and legality:
•
Dan e7—antzaris, City Attorney
1110,
USE LICENSE, IMPROVEMENT, MAINTENANCE AND COST SHARING
AGREEMENT BETWEEN THE CITY OF CLERMONT
AND THE ARTS DISTRICT LLC
THIS AGREEMENT REGARDING USE LICENSE, IMPROVEMENTS,
MAINTENANCE AND COST SHARING (the "Agreement") is made and entered into this 06 day
of Ve_ u,Q(K , 2019, by and between CITY OF CLERMONT, a Florida Municipal Corporation,
whose address is 685 West Montrose Street, Clermont, FL 34711 ("Clermont"), and THE ART
DISTRICT LLC whose address is 1560 Bloxam Avenue,Clermont, FL. 34711 ("Art District").
WITNESSETH:
WHEREAS, Clermont and Art District are parties to that certain Contract for Sale and Purchase
dated , 2018, for the purchase by Art District of real property as described therein and
hereinafter referred to as the"Sale and Purchase Contract";
1111r* WHEREAS, it intended by the parties that this Agreement and the Sale and Purchase Contract
shall be used as part of the construction an art walk for the benefit of the general public;
WHEREAS, it is intended by the Parties that the art walk shall be part of an area redevelopment
project to include improvement and development of adjacent property owned and/or controlled by Art
District, hereinafter referred to as the "Project"and more particularly described in"Exhibit"A" attached
hereto and incorporated herein;
WHEREAS, it is intended that the Project shall be constructed in phases and that Phase I of the
Project shall be the construction and improvement of the Art Walk and Art Walk Building as more
particularly described in the body of the Agreement;and
WHEREAS, the City Council has determined that entering into this Agreement is in the best
interests of the citizens of the City of Clermont.
NOW THEREFORE, in consideration of the mutual covenants, promises and benefits contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged,Clermont and Art District agree as follows:
1. Whereas and Recital Clauses Incorporated. The above-stated whereas and recital clauses
are restated and incorporated into the body of this Agreement.
2. Grant of Use Right. City does hereby grant and convey to Art District a
-1-
a perpetual, non-exclusive easement, right, license and privilege for the improvement and use, subject to
prior approval by City and in accordance with all applicable laws and regulations, of that certain public
access property owned by City as more particularly described in Exhibit "B" attached hereto and
incorporated herein, hereinafter referred to as the"Art Walk". The right granted herein, shall include,air
rights commencing seven (7) feet above the Art Walk for Art District's Project and related fixtures
including but not limited to signs and fans.
3. Term. The rights granted and imposed by this Agreement shall be perpetual, becoming
effective on the date of the closing of the transaction contemplated in the Sale and Purchase Contract and
remaining in full force and effect forever; unless terminated or modified by written agreement, properly
executed and recorded, between the parties hereto, or their respective successors or assigns. The rights
created by this Agreement shall be binding upon all parties or persons claiming under them and shall run
with the Property for the aforesaid term.
4. Improvements of Art Walk. Art District shall construct the Art Walk and Art Walk
Building (collectively the Art Walk and Art Walk Building shall mean Phase I of the Project) in
accordance with plans and specifications as agreed to by City to contain, as a minimum, those certain
improvements as described in Exhibit "C" attached hereto and incorporated herein. The plans and
specifications shall specifically describe and identify Phase I of the Project. On or before December 31,
2019, the parties shall jointly approve the specifications, design, and estimated cost of construction,
including survey, design and engineering costs and applicable contingency, for the agreed-upon
improvements. Prior to commencement of construction the parties shall jointly approve the contractor,
and or subcontractors. Art District shall complete the construction of the improvements in accordance
with all applicable laws,permits and regulations,shall ensure and verify to Clermont that all suppliers and
subcontractors are paid in full and shall deliver to City a quit claim deed or bill of sale,as determined and
• accepted by Clermont, for the Art Walk improvement constructed hereunder. Within thirty(30) days of
City's approval of Art District's site plan for the Art Walk, City shall reimburse Buyer for ninety (90)
percent of the actual survey, design and engineering expenses paid by Art District, provided the total
actual costs for these expenses shall not exceed the line item estimates contained in the agreed-upon
estimated cost of construction plus any change orders approved by City and Art District in writing. Art
District shall construct the Art Walk improvements,at its initial expense, in accordance with the approved
site plan. City shall reimburse Art District for ninety (90) percent of the total actual construction costs;
provided the total actual costs for these expenses shall not exceed the applicable estimates contained in
the agreed-upon estimated cost of construction plus any change orders approved by City and Art District
in writing. The reimbursement for the construction phase shall be paid by City to Art District in a total
of four installments with an installment being paid upon completion of 25%, 50%, 75% and 100%. For
each installment payment,Art District shall submit to City an invoice in a form and with reasonable back-
up and support documentation, as City may require. City shall pay each undisputed invoice within thirty
(30) days of the date Art District submits to City the appropriate invoice. The installments will not be
equal in amount. Unless agreed to in writing by City, the total reimbursement amount hereunder paid by
City to Art District shall not exceed ninety(90)percent of the agreed-upon estimated cost of construction
referred to above plus any change orders approved by City and Art District in writing. Provided however,
the City Manager of City is authorized in his discretion and without further action of the City Council,to
approve an increase in the estimated cost of construction in an amount not to exceed ten(10)percent.
5. Maintenance of Art Walk and Dedication of Sidewalk. Upon completion of the Art
Walk improvement and acceptance by City,City shall be responsible in perpetuity and its sole discretion,
for the maintenance of the Art Walk and the authorized improvements thereon. Art District shall transfer
to City any and all rights and interests in any warranties for any of the contemplated improvements.
Furthermore,upon completion and acceptance by City of the planned sidewalk shown on Exhibit"A"and
110 existing on property owned or controlled by Art District, Art District shall dedicate to City by such
2
method and in a form as reasonably required by City, all rights in the constructed sidewalk and the real
property upon which it is located. For purposes herein, Art District shall provide a survey reasonably
sufficient to identify the sidewalk.
6. Buy-Back Provision/Timeframe for Completion.As an express condition hereof and
which condition shall survive closing, in the event that Art District fails to timely meet either of the
conditions described below and subject to the opportunity to cure set forth below, City, at City's sole
option, shall have the right to buy back the Property described in the Sale and Purchase Contract, (the
"Property") including any and all improvements,development plans and permit approvals directly related
thereto, for the buy-back purchase price of One Hundred (100) percent of the purchase price Art District
LLC. The"buy-back option"conditions are as follows:
(a) The partiestimely agree fail to a ee on the Estimated Cost of Construction referred to in Section 4
above;or
(b) Art District shall on or before the expiration of Twenty-Four (24) months after site plan
approval receive a Certificate of Occupancy for at least FIFTY(50)percent of Phase I of the
final approved and permitted Project as generally described in the approved Site Plan referred
to above and in Exhibit"C"attached hereto and incorporated herein.
Upon the failure of Art District to timely satisfy either of the above buy-back option conditions,
upon thirty (30) days written notice from City to Art District of the default, Art District shall have an
opportunity to cure during said thirty(30)day notice period. If Art District fails to cure by the thirty-first
(31st) day, then within ten (10) days, Art District shall provide to City a Special Warranty Deed
delivering marketable title to the Property free and clear of all liens, mortgages and encumbrances,
• excepting those encumbrances listed on Art District's owners title policy issued when Art District
acquired the Property from City in exchange for the buy back purchase price. In addition, Art District
shall provide to City at the closing of the buy-back transaction and at no additional cost to City, a
complete copy of any and all surveys, drawings, specifications and plans related to the Art Walk
improvements contemplated herein.
The buy-back transaction shall be completed by a closing agent as selected by City. At the
closing pursuant to this buy-back provision,Art District shall pay for state documentary stamps as may be
required to be affixed to the Special Warranty Deed, any taxes or assessments prorated as of the date of
closing, the cost of recording any and all other documents necessary to deliver good and clear title, and
any document preparation fees. Art District and City shall each bear its own attorneys' fees.
In the event that Art District has timely met the conditions above, or City does not exercise its
buy-back option within six (6) months of the date of the notice set forth above City shall, upon written
request from Buyer, execute and deliver to Art District a Release of Buy-Back Interest. Notwithstanding
the foregoing, in the event that the Certificate of Occupancy referred to herein is not issued or its issuance
is delayed,solely due to the inaction or omission of City,the time to perform hereunder shall be extended
for a reasonable period to be agreed-upon by the parties.
7. Defaults.The occurrence of one or more of the following events shall constitute a default
under this Agreement:
(a)the failure or omission of any party to pay when due any monetary amounts it is
obligated to pay pursuant to the terms hereof, including but not limited to any obligation
of Art District to pay any contractor, subcontractor, materialman or supplier; provided,
• such failure shall continue for fifteen (15) days following the date when such payment
was due;or
(b)the failure of either party to keep, observe or perform any term, condition or
obligation of this Agreement required hereunder to be kept, observed or performed by
such party (other than a monetary default), such failure shall continue for fifteen (15)
days following the date when such performance was due.
8. Indemnification. Art District agrees to indemnify City and hold City harmless
from and against any and all claims, damages, liability, demands, causes of action, losses, costs
and expenses, including reasonable attorneys' fees at the trial and appellate levels, resulting from
or occasioned from Art Districts use of the Art Walk and easement, right, license and privilege
rights granted herein or such use by any tenant, licensee, invitee, employee or guest of Art
District. The right to such indemnification shall not be enforceable if such claim, damage,
liability, demand, cause of action, loss or costs and expenses arise from the negligent acts or
omissions of the City.
9. Notices.All notices provided for in this Agreement shall be in writing and sent or
delivered to the mailing or email addresses or facsimile numbers set forth below or at such other
addresses or facsimile numbers as the parties shall designate to each other in writing:
TO CITY: City of Clermont
685 West Montrose Street
Clermont,FL 34711
Attn.: Darren Gray,City Manager
•
WITH A REQUIRED de Beaubien Knight,Simmons,Mantzaris
COPY TO: Neal,LLP
332 North Magnolia Avenue Orlando,Florida 32801
Attention: Daniel F.Mantzaris,Esquire Phone:(407)422-2454
Fax:(407)992-3541
e-mail: dmantzaris@dsklawgroup.com
TO ART DISTRICT: The Art District,LLC
P.O.Box 120788
Clermont,FL 34712
Attn.:Jayson Stringfellow
WITH A REQUIRED
COPY TO: Anita Geraci-Carver
Law Office of Anita Geraci-Carver,P.A.
1560 Bloxam Avenue
Clermont,FL 34711
anita@agclaw.net
And: Ryan Stringfellow
1014 4th Ave S
Nashville,TN 37210
111 ryan@odysseytn.com
4
•
Any notice or demand so given,delivered or made by United States mail shall be deemed to have
been given: (a)in the case of hand delivery, when delivered to the address set forth above,(b)in the case
of mailing, on the third (31d) business day after said document has been deposited in the United States
Mails, postage prepaid, and sent by certified or registered mail and addressed to the other party at the
address set forth above,and(c)in any case(including email or facsimile delivery)upon the actual receipt
by the other party. Delivery to either party's legal counsel shall be deemed sufficient delivery. Either
party may from time to time notify the other or changes with respect to where and to whom notices
should be sent by sending notification of such changes pursuant to this section.
10. Time of the Essence. Time, and timely performance, is of the essence of this Agreement
and of the covenants,obligations,and provisions hereunder.Any time period that shall end on a Saturday,
Sunday, legal holiday, or bank holiday shall extend to 5:00 p.m. Eastern Standard (or Daylight, as
applicable)Time of the next full business day.
11. Violations and Enforcement. The rights and obligations granted or created hereby shall
be enforceable by City or Art District,or their respective successor or assigns,by injunction or by specific
performance,or the parties hereto may seek monetary damages,if appropriate.
12. GoverningLaw, Venue and BindingEffect. This Agreement and the interpretation and
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enforcement of the same shall be governed by and construed in accordance with the laws of the State of
Florida and shall be binding upon,inure to the benefit of,and be enforceable by the parties hereto as well
as their respective heirs,personal representatives,successors and assigns. Venue for any action to enforce
the terms and conditions herein,shall be exclusively in Lake County,Florida.
(1110
City of Clermont
Attest:
By: BY ��i �.
Tracy Ackroyd Howe,City Clerk Mayor Gail Ash
Date: ,2 - 2.t, )OIQ
The Art District,LLC
Attest:
By: // By
Name/Title: o '.t' 1 L C/ei1L RHOT, I . Member
By Jays,/ Stringfellow, Director
Date: 2 —2 Zo
S
EXHIBIT "A" - GENERAL DESCRIPTION OF ART DISTRICT PROJECT - PRELIMINARY
410 MASTER SITE PLAN OF DECEMBER 2018
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EXHIBIT B" - LEGAL DESCRIPTION AND SKETCH OF THE COVERED ART WALK AND
SURVEY
The East 18.00 feet of the West 20.00 feet of the East 33.00 feet of said Lot 14, Block 80, OFFICIAL MAP
OF THE CITY OF CLERMONT, according to the map or plat thereof as recorded in Plat Book 8, Page 17,
Public Records of Lake County, Florida.
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