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FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT f FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR PROPERTY INTHE CITY OF CLEARWATER R~RNTO:!C CITY CLERK POST OFFICE BOX 4748 ~LEARWATER, FL 33758-4748 between 02-322555 AUG-29-2002 2: 19PM PINELLRS CO 8K 12189 PG 2198 ____.UUilllllllllllllllllllllllllllIlllLllllllJUl.__ THE CITY OF CLEARWATER, FLORIDA, and CLEARWATER SEASHELL RESORT, L.C. Dated as of ~uL ci2iJ ;L(}(J;/", 2002March 13,2001 Pf\GES ._ '. 9. 9 AceT J]fO(J1() r-"'lt'-........ -, nt:l.J DR219 os !NT FEES MTF PIC REV "- - TOTAL W7-tiD - CK BAL =~= CHG AMT -...::.---- ~T TABLE OF CONTENTS PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2199 ARTICLE 1. DEFINITIONS ...... ........ ............. ...... ...... .................. .................... .........,......... .......... ............2 Section 1.01 Section 1.02 Section 1.03 Defin itions ..........................................................................,.................................... 2 Use of Words and Phrases.....................................................................................4 Florida Statutes......................................................................................................4 ARTICLE 2. PURPOSE, PROPOSAL AND DESCRIPTION OF PROJECT ...................................................................................4 Section 2.01 Section 2.02 Section 2.03 Section 2.04 Finding of Public Benefit and Purpose ...................................................................4 Purpose of Agreement............................................................................................ 5 Scope of Project..................................................................................................... 5 Cooperation of the Parties...................................................................................... 7 ARTICLE 3. REGULATORY PROCESS ................................................................................................. 7 Section 3.01 Section 3.02 Section 3.03 Land Development Regulations .............................................................................7 Development Approvals and Permits .....................................................................8 Concurrency........................................................................................................... 9 ARTICLE 4. PLANS AND SPECIFICATIONS ......................................................................................10 Section 4.01 Preparation of Plans and Specifications............................................................... 10 ARTICLE 5. PROJECT DEVELOPMENT .............................................................................................10 Section 5.01 Section 5.02 Section 5.03 Section 5.04 Section 5.05 Ownership of Project Site .....................................................................................10 Project Site........................................................................................................... 1 0 City Option to Purchase................................. .................. ...... ................. ...... ........ 11 City=s Obligations..... .......... ............. ....... ....... ............................ ........... ................ 11 Obligations of the Developer ................................................................................14 ARTICLE 6. PROJECT FINANCiNG.....................................................................................................18 Section 6.01 Section 6.02 Section 6.03 Notice of Project Financing to City .......................................................................18 Copy of Default Notice to City ..............................................................................18 City Option to Pay Mortgage Debt or Purchase Project.......................................19 ARTICLE 7. CONSTRUCTION ............................................................................................................. 20 Section 7.01 Site Work.............................................................................................................. 20 Section 7.02 Construction...........................................................................................,............ 20 Section 7.03 Construction Completion Certificate ..........................................................................22 Section 7.04 City not in Privity ...................................................................................................23 Section 7.05 Construction Sequencing and Staging Area ........................................................23 ARTICLE 8. INDEMNIFICATION ... ........... .......... ................. .................. ......... ....... ............................. ..24 Section 8.01 Indemnification by the Developer .........................................................................24 Section 8.02 Indemnification by the City ...................................................................................25 First Amended Development Agreement ADOPTED Page i PINELLRS COUNTY FLR, OFF,REC.8K 12189 PG 2200 Section 8.03 Limitation of Indemnification .................................................................................25 ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER ............................................................................................................ 26 Section 9.01 Representations and Warranties..........,...............................................................26 Section 9.02 Covenants............................................................................................................. 28 ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CiTy....................................................................................................................... .29 Section 10.01 Representations and Warranties..........................................................................29 Section 10.02 Covenants............................................................................................................. 30 ARTICLE 11. CONDITIONS PRECEDENT ...............................................................................................31 Section 11.01 The Developer Acquiring Project Site ..................................................................31 Section 11.02 Construction of Project .........................................................................................32 Section 11.03 Responsibilities of the Parties for Conditions Precedent .....................................32 ARTICLE 12. DEFAULT; TERMINATION.............................................................................................32 Section 12.01 Section 12.02 Section 12.03 Section 12.04 Section 12.05 Section 12.06 Project Default by the Developer..........................................................................32 Default by the City............. ........................... ................. ................... ........... ......... 34 Obligations, Rights and Remedies Cumulative ....................................................35 Non-Action on Failure to Observe Provisions of this Agreement......................................................................................................... 36 Termination........................................................................................................... 36 Termination Certificate......................................................................................... 37 ARTICLE 13. RIGHT TO CONTEST .....................................................................................................38 Section 13.01 Right to Contest............... ............................ ........ ......................... ................. ....... 38 Section 13.02 Conditions............................................................................................................. 38 ARTICLE 14. 'ARBITRATION................................................................................................................ 39 Section 14.01 Section 14.02 Section 14.03 Section 14.04 Section 14.05 Section 14.06 Section 14.07 Section 14.08 Section 14.09 Section 14.10 Agreement to Arbitrate .......... .......... ....... .......... ........ ................... ....... ...... ............ 39 Appointment of Arbitrators...............,.................................................................... 39 General Procedures...................,....................................,................................... .40 Majority Rule........................................................................................................ .40 Replacement of Arbitrator.........................,........................................................... 40 Decision of Arbitrators ........... ... .... .... ......... .......... ..... ... ... ...... ..... .............., ...... ......41 Expense of Arbitration .. ......... ....... ............................ .......... ....... ....... ... ...., ... ..... ....41 Accelerated Arbitration........................................................................................, 41 Applicable Law ........................................................................................,............ 41 Arbitration Proceedings and Records......................................................,............42 ARTICLE 15. UNAVOIDABLE DELAY .................................................................................................42 Section 15.01 Unavoidable Delay ..............................................................,................................42 First Amended Development Agreement ADOPTED Page ii PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2201 ARTICLE 16. RESTRICTIONS ON USE ...............................................................................................43 Section 16.01 Project.........................................,......................................................................... 43 ARTICLE 17. FIRE OR OTHER CASUALTY; CONDEMNATION........................................................44 Section 17.01 Section 17.02 Section 17.03 Section 17.04 Section 17.05 Loss or Damage to Project...................................................................................44 Partial Loss or Damage to Project........................................................................44 Project Insurance Proceeds ......., ................ ........ ...................... ................ ........ ...44 Notice of Loss or Damage to Project....................................................................45 Condemnation of Project or Project Site; Application of Proceeds... .,.................................................................................................. .45 ARTICLE 18. MiSCELLANEOUS....... ..................................................................................................45 Section 18.01 Section 18.02 Section 18.03 Section 18.04 Section 18.05 Section 18.06 Section 18.07 Section 18.08 Section 18.09 Section 18.10 Section 18.11 Section 18.12 Assignments........................................................................................................ .45 Successors and Assigns ............................ ........................... ........... ............... .....46 Notices................................................................................................................. .46 Applicable Law and Construction .........................................................................47 Venue; Submission to Jurisdiction .......................................................................47 Estoppel Certificates............................................................................................ .48 Complete Agreement; Amendments .......... .............. .......... ........... ....... ..... ...........48 Captions........................ ....................................................................................... .49 Holidays...... ........................ ................................................................................. .49 Exhibits................................................................................................................ .49 No Brokers........................................................................................................... .49 Not an Agent of City .............................................................................................49 First Amended Development Agreement ADOPTED Page iii PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2202 Section 18.13 Memorandum of Development Agreement ...............,..........................................49 Section 18.14 Public Purpose .....................................................................................................49 Section 18.15 No General Obligation ..........................................................................................49 Section 18.16 Other Requirements of State Law........................................................................50 Section 18.17 Technical Amendments, Survey Corrections .......................................................50 Section 18.18 Term; Expiration; Certificate .................................................................................50 Section 18.19 Approvals Not Unreasonably Withheld.................................................................51 Section 18.20 Effective Date........................ ............................................................................... 51 EXHIBITS PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2203 Legal Description of Controlled Property ...................................................................................................... A Project Description..........,..........................................................,................................................ .................. B Project Site................................................................................................................................. .................. C Project and Interim Proiect Development Schedule ..................................................................................... D Covenant Trip Generation Management Program ....................................................................................... E Covenant Regarding Hurricane Watch Closure ........................................................................................... F List of Required Permits & Approvals ........................................................................................................... G Public Improvements...........................................................................,.............................................. .......... H Appraisal Instructions .....................................................................................................................................1 Cafe Seating........................................................................................................................................... ....... J Covenant of Unified Use ...... ................................................. .... ..... .............. ............................ ...... .... ....... .... K License Agreement ...........................................................................................,..................,................L I nterim Project....................................................................................................................,......... ................. M Lease Agreement..................................................................................................,.......................... ............ N PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2204 This First Amended Agreement for Development of Property (the "Agreement") is made as of this iJtt'--day of ~ ' 2002 March, 2001, by and between THE CITY OF CLEARWATER, LORIDA, a Flonda mUnicipal corporation (the "City"), and CLEARWATER SEASHELL RESORT, L.C., a Florida limited liability company (the "Developer"). WITNESSETH: WHEREAS, the City of Clearwater has embarked on a community revitalization effort for Clearwater Beach; WHEREAS, one of the major elements of the City's revitalization effort is a preliminary design for the revitalization of Clearwater Beach entitled Beach by Design; WHEREAS, Beach by Design identifies a need for additional public parking on Clearwater Beach; WHEREAS, Beach by Design calls for the removal and replacement of surface parking spaces located to the west of South Gulfview to the south of Pier 60 Park; WHEREAS, the City has adopted Beach by Design pursuant to the Pinellas Planning Council's Rules in support of the City's Comprehensive Plan; WHEREAS, Clearwater Seashell Resort, L.C. proposes has proposed to develop a mixed use project on certain property fronting on South Gulfview (the "Project Site") and has proposed to include at least seven hundred and fifty (750) parking spaces of which at least four hundred (400) spaces shall be open to the public; WHEREAS, it is necessary that the City take certain actions in order to make it possible for Clearwater Seashell Resort, L.C. to develop the Project Site in accordance with the goals and objectives of Beach by Design; WHEREAS, the City has conducted such hearings as are required by and in accordance with Chapter 163.3220 F. S. and applicable law; WHEREAS, the City has determined that as of the Effective Date of this Agreement, the proposed development is consistent with the City's Comprehensive Plan and Land Development Regulations; WHEREAS, at a duly called public meeting on March 1,2001, the City Commission approved the tfHs Agreement, and authorized and directed its execution by the appropriate officials of the City; First Amended Development Agreement ADOPTED Page 2 PINELLRS COUNTY FLR OFF,REC.8K 12189 PG 2205 WHEREAS, the City and Developer entered into a Development Aqreement for development of real property in the City of Clearwater dated March 13, 2001 ("Aqreement"); WHEREAS, the Aqreement contained a prerequisite of adoption of modification to the Comprehensive Plans for the City and for Pinellas County ("Plan Modifications") which have been undertaken and approved; WHEREAS, it is necessary to enter into this First Amended and Restated Development Aqreement in order to remove conditions which have been met, provide for the interim parkinq, extend the time frames for Development of the Project, and provide for purchase of the Project Site by the City; WHEREAS, the anticipated project described in the Aqreement has not been commenced, by virtue of a turn down in the economic condition for the tourist industry, acts of terrorism and war, and further by litiqation undertaken by an adioininq property owner, such matters beinq recoqnized by the City as temporarily delayinq commencement of the Project; WHEREAS, the Developer has presented to the City herewith an interim plan for development of the Proiect site as surface parkinq which will extend the development opportunity and further benefit the City in implementation of Beach BV Desiqn; WHEREAS, the City has conducted public hearinqs as required by ~ 4- 206 and 4-606 of the Community Development Code; WHEREAS, at a duly called public meetinq on Auqust 22, 2002, the City Commission approved this First Amendment to the Aqreement and authorized and directed its execution by the appropriate officials of the City; WHEREAS, implementation of the interim plan as development of the Project site as a temporary parkinq lot ("Interim Development Plan") would qive the City the option of qoinq forward with the proposed desiqn, permittinq and construction of Beach Walk, in accordance with the overall timeline established for completion of the Memorial Causeway Bridqe and Mandalay improvements, all of which are currently under construction; WHEREAS, approval of the Interim Development Plan is in the interests of the City in furtherance of the City's qoals of enhancinq the viability of the resort community and furtherance of the objectives of Beach Bv Desiqn; and WHEREAS, the members of Clearwater Seashell Resort, L.C. have approved this First Amended Agreement and has authorized certain individuals to execute this First Amended Agreement on its behalf; First Amended Development Agreement ADOPTED Page 3 PINELLRS COUNTY FLR OFF,REC.8K 12189 PG 2206 ._----~-,._---- NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby agree as follows: ARTICLE 1. DEFINITIONS. 1.01. Definitions. The terms defined in this Article 1 shall have the following meanings except as herein otherwise expressly provided: 1. "Agreement" means this First Amended and Restated Agreement for Development of Property including any Exhibits and any amendments thereto. 2. "Beach by Design" or "Plan" means the strategic redevelopment plan for Clearwater Beach dated 2001 which was adopted by the City Commission pursuant to the provisions of the Pinellas County Planning Councils Rules for the designation of a Community Redevelopment District. 3. "City" means the City of Clearwater, Florida, a Florida municipal corporation. 4. "City Commission" means the governing body of the City. 5. "Commencement Date" means the date on which Developer commences or causes a Contractor to commence construction (see Section 5.05(12)). 6. "Completion Date" means the date on which the last certificate of occupancy required for the Project is issued. 7. "Construction Completion" means the date a Construction Completion Certificate is issued (see Section 7.03). 8. "Controlled Property" means those properties within the Project Site which have been purchased by or are subject to a purchase contract in favor of the Developer or an affiliate or nominee on the Effective Date of this Agreement (see Section 5.01) which are more particularly described in the legal description set out in Exhibit A to this Agreement. 9. "Developer" means, for the purposes of this Agreement, Clearwater Seashell Resort, L.C. and its successors and assigns as provided in Article 18. 10. "Effective Date" means the date of approval and execution of the trns Development Agreement. 11. "Exhibits" means those agreements, diagrams, drawings, specifications, instruments, forms of instruments, and other documents attached hereto and designated as exhibits to, and incorporated in and made a part of, the trns First Amended Development Agreement ADOPTED I Page 4 ' PINELLAS COUNTY FLR, OFF,REC,8K 12189 PG 2207 Development Agreement dated March 13, 2001. All such exhibits are hereby incorporated by referenced as exhibits hereto. 12. "Garage Access Improvements" means the pedestrian overpass, landing, arcade, elevated sidewalk, and facilities to provide concessions along the western facade of the Project which are proposed in conjunction with the development of at least four hundred (400) parking spaces as a part of the Project which are to be available to the general public and to be owned by the City, as more particularly described on Exhibits Hand L. 13. "Interim Project" means a surface parkinQ lot as provided in Exhibit M. 14 4-J. "Meeting Space" means any building floor area which can be used in conjunction with conference or meeting activities. 1Q -+4. "Net Cost of South Gulfview and Beach Walk Improvements" means the total cost of the improvements, including debt service, fees, and return on equity, net of: a) any impact fee credits credited against the cost of the improvements, and b) any other funding made available by or through the City which are not generated by the Project. 16 4-5. "Net increase in taxes" means that increase in revenues above the amount in either municipal ad valorem taxes or utility taxes paid by the owner of the Controlled Property as of the Effective Date of this Agreement. IT 4-9. "Permits" means all land development approvals and consents required to be granted, awarded, issued, or given by any governmental authority in order for construction of the Project, or any part thereof, to commence, continue or be completed. 1!! -4-7. "Plans and Specifications" means, as to each part of the Project to be developed, the site plan for the Project to be developed, filed with the City as required by the Land Development Regulations for the purpose of review and approval. .li! 4-8. "Project" means, collectively, the concept of development for a resort hotel proposed by the Developer as described in Section 2.03(1) of this Agreement and the preliminary plans which are attached hereto as Exhibit B. 20 W. "Project Site" means the land area generally bounded by the western edge of the right-of-way of Coronado Street, on the north by the southern boundary of the Golden Sands Motel property, sometimes referred to as the "Spyglass property", on the south by the northern boundary of the property popularly known as the "Legends property," and on the west by the centerline of South Gulfview, which is more particularly described and depicted on Exhibit C (see Section 5.02). First Amended Development Agreement ADOPTED Page 5 PINELLRS COUNTY FLR. OFF,REC,8K 12189 PG 2208 21 2Q. "South Gulfview and Beach Walk Improvements" means the proposed realignment of South Gulfview and the construction of a thirty-five (35) foot wide promenade, a fifteen (15) foot bicycle/skating path, a fifteen (15) foot beachfront pedestrian path, fifty (50) paid surface parking spaces and associated landscaping from the northern edge of the right-of-way of First Street to a line which represents an extension of the southern wall of the South Beach Pavilion eastward to the eastern boundary of the existing right-of-way of South Gulfview, as more particularly shown on Exhibit H. 22 24-. "Termination Date" means the date a termination certificate is issued pursuant to Article 12. 23 22. "Termination for Cause" means a termination which results from an uncured, material breach of the Agreement. 24 2J. "Unavoidable Delay" means a delay as described in Article 15 hereof. 25 ;M. "Vacation of Rights-of-Way" means the abandonment of the right-of-way of Third Street between the right-of-way of Coronado and the centerline of the existing right- of-way of South Gulfview and the eastern half of the existing right- of-way of South Gulfview within the Project Site by the City in favor of Developer, in order that the goals and objectives of the Comprehensive Plan may be better accomplished. 1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, the singular shall include the plural as well as the singular number, and the word "person" shall include corporations and associations, limited liability corporations and partnerships, including public bodies, as well as natural persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this Agreement and not solely to the particular portion thereof in which any such word is used. 1.03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (2000), as amended from time to time. ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT. 2.01. Finding of Public Purpose and Benefit. The proposed Project, including the acquisition of the Controlled Property by the Developer and the design, construction, completion and operation of the Project, and each part thereof, is hereby found by the parties hereto: (1) to be consistent with and in furtherance of the objectives of the Comprehensive Plan of the City of Clearwater, (2) to conform to the provisions of Florida law, (3) to be in the best interests of the First Amended Development Agreement ADOPTED Page 6 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2209 citizens of the City, (4) to further the purposes and objectives of the City, (5) to further the public interest on Clearwater Beach, and (6) to implement Beach by Design for South Gulfview, including the removal of parking from the dry sand beach, implementation of the South Gulfview and Beach Walk Improvements and the Garage Access Improvements to be constructed as a part of the Project. 2.02. Purpose of Agreement. The purpose of this Agreement is to further the implementation of Beach by Design by providing for the development of the Project Site and the construction of certain public improvements, all to enhance the quality of life, increase employment and improve the aesthetic and useful enjoyment of Clearwater Beach and the City, all in accordance with and in furtherance of the Comprehensive Plan of the City of Clearwater and as authorized by and in accordance with the provisions of Florida law. 2.03. Scope of the Project. 1. The Project shall only include public parking, private parking, resort hotel and retail uses and appropriate accessory uses and shall be developed in substantial conformity with the preliminary plans of development which are attached as Exhibit B. 'J'lhen all required approvals including designation of tThe Project Site is as a "Community Redevelopment District," pursuant to the Pinellas County Planning Council's Rules which authorizes an increase in hotel unit density pursuant to the provisions of Beach by Design:. have been granted by the appropriate authorities pursuant to applicable la'lI, tThe intensity of permitted use on the Project Site shall be: Public parking -at least 400 spaces Private parking -at least 350 spaces Hotel- 250 units including up to 20,000 square feet of Meeting Space Retail -not more than 50,000 square feet of floor area If the change described in Section 3.01 (2) is not approved pursuant to all applicable rules, regulations and la\A.ls :md a Community Redevelopment District hotel density bonus program is not established, the City and Developer agree to '.\'ork together in good faith to agree on an economically viable alternative development, \Nhich shall include at a minimum 100 parking spaces to be available to the public. In addition, if the change described in Section 3.01 (2) is not approved and the City and the Developer cannot agree on an economically viable alternative development, the City and the Developer agree to negotiate a sale First Amended Development Agreement ADOPTED Page 7 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2210 whereby the City may buy the Controlled Property at fair market value, to be established by an appraisal process. The appraisals shall be conducted by hvo (2) appraisers retained by the City. One of the appraisers shall be selected from a list of qualified appraisers submitted to the City by the Developer. In the event that the two (2) appr3isals are within tv.'enty percent (20%) of each other, the f-air market value shall be the average of the two (2) appraisals. In the event that the appraisals differ by more than tvventy percent (20%), the two appraisers shall select a third appraiser from the City's master list of qU31ified appraisers, including the list submitted by the Developer, and the third appraiser shall select among the two (2) appraisals which in the opinion of the third appraiser most accurately represents the f-air market v31ue of the property. 2. Nothing shall preclude the Developer from developing or operating all or portions of the Project elements using any ownership format permitted under Florida Statutes including individual ownership formats. 3. Up to twenty-five percent (25%) of the hotel units may be suites with kitchens, including all typical kitchen equipment and amenities. 4. Notwithstanding any other provision of this Agreement, no occupancy in excess of thirty (30) days per stay shall be permitted in any unit which is developed as a part of the Project. 5. As a condition of the allocation of bonus hotel units pursuant to the designation of Clearwater Beach as a Community Redevelopment District pursuant to the Pinellas County Planning Council's Rules, the Developer shall comply with each of the standards established in Beach by Design, including: a. The resort hotel which is a part of the Project shall provide a full range of on and off site amenities for the guests of the resort, including a full service restaurant, room service, valet parking, exercise facilities, pool, and meeting areas and access to boating, fishing and golf off- site. Off site amenities may be provided through a concierge service. b. The resort hotel which is a part of the Project shall be operated as a Marriott Resort or other comparable national or international "flag" or brand or as part of another comparable marketing affiliation or program which will ensure the repositioning of Clearwater Beach as a national and international resort destination. c. Prior to the issuance of a certificate of occupancy for the resort hotel which is a part of the Project, the Developer shall record a covenant and restriction which is enforceable by the City, First Amended Development Agreement ADOPTED Page 8 PINELLRS COUNTY FLR, OFF, REC ,8K 12189 PG 2211 substantially in accordance with Exhibit E, limiting the use and operation of the resort, which is enforceable by the City, obligating the Developer to develop, implement and operate, at all times when the resort hotel is open, a Trip Generation Management Program which shall include the provision of non-private automobile access to and from the resort which shall include at least an airport shuttle and resort-provided transportation to off-site amenities and attractions. d. Prior to the issuance of a building permit authorizing the construction of the resort hotel units, the. Developer shall record a covenant and restriction which is enforceable by the City, substantially in accordance with Exhibit F, on the use and operation of the resort, which is enforceable by the City, that obligates the Developer to close and vacate all persons (except for emergency personnel required to secure and protect the facilities) from the resort hotel within twelve (12) hours after the issuance of a hurricane watch by the National Hurricane Center which includes Clearwater Beach. 6. Interim Project Prior to the development of the Proiect. the Developer is authorized to construct an Interim Proiect consistinQ of a surface parkinQ lot under the terms and conditions described herein. 2.04. Cooperation of the Parties. The City and the Developer recognize that the successful development of the Project and each component thereof is dependent upon the continued cooperation of the City and the Developer, and each agrees that it shall act in a reasonable manner hereunder, provide the other party with complete and updated information from time to time, with respect to the conditions such party is responsible for satisfying hereunder and make its good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this Agreement are carried out to the full extent contemplated hereby and the Project is designed, constructed, completed and operated as provided herein. ARTICLE 3. REGULATORY PROCESS. 3.01. land Development Regulations. 1. Land Use DesiQnation. The Project Site is designated Tourist District in the City's land Development Regulations. 2. Amendments to Comprehensive Plan & Land Development ReQulations. The City has agrees to initiate an amended amendment to the Comprehensive Plan of the City of Clearwater tG First Amended Development Agreement ADOPTED Page 9 PINELLRS COUNTY FLR OFF,REC,8K 12189 PG 2212 ----~--- -------- ----- update the Plan to recognize the Goals and Objectives set forth in Beach by Design and has to take all steps necessary to designateg Clearwater Beach as a Community Redevelopment District in accordance with Beach by Design pursuant to Pinellas County Planning Council Rules; and, in the event this designation is obtained, the City shall initiate appropriate proceedings to allocateg an additional one hundred eighty-five (185) hotel units, for a total of two hundred fifty (250) hotel units to the Project Site in accordance with applicable law. 3.02 Development Approvals and Permits. 1. Applications for Development Approval. The Developer shall prepare and submit to the appropriate governmental authorities, including the City, applications for approval of all plans and specifications necessary for the Project, and shall bear all costs of preparing such applications, applying for and obtaining such permits, including payment of any and all applicable application, inspection, regulatory and impact fees or charges, subject to the provisions of Section 5.05(5). The City shall, to the extent possible, expedite review of all applications, including foundation permits. A list of all permits and approvals required to implement the provisions of this Agreement is attached as Exhibit G. The failure of this Agreement to address a particular permit, condition, or term of restriction shall not relieve the Developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions. 2. Schedule. A Project Development Schedule is attached to this Agreement as Exhibit D that identifies specific tasks to be completed through the entire Project, starting with the issuance of a f-oundation permit and installation of pilings. Adherence to the schedule will enable the Developer to document a continuous construction project to the State of Florida. 3. City Cooperation and Assistance. The City shall cooperate with the Developer in obtaining all necessary Permits required for the construction, completion and opening for business of the Project. If requested by the Developer and authorized by law, the City will join in any application for any Permit, or, alternatively, recommend to and urge any governmental authority that such Permit or Permits be issued or approved. 4. City Authority Preserved. The City's duties, obligations, or responsibilities under any section of this Agreement, specifically including, but not limited to, this Section 3.02, shall not affect the City's right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laws, ordinances, codes or other building regulations. Notwithstanding any other provision of this Agreement, any required permitting, licensing or other regulatory approvals by the City First Amended Development Agreement ADOPTED Page 10 PINELLRS COUNTY FLR. OFF,REC.8K 12189 PG 2213 shall be subject to the established procedures and substantive requirements of the City with respect to review and permitting of a project of a similar or comparable nature, size and scope. In no event shall the City, due to any provision of this Agreement, be obligated to take any action concerning regulatory approvals except through its established procedures and in accordance with applicable provisions of law. 5. Impact Fees. The City shall use its best efforts to secure or provide any lawfully available credits against impact fees applicable to the Project which are authorized under existing laws and regulations for public improvements constructed and paid for by the Developer. In the event that the City is unable to secure a credit against any impact fees, the City shall use its best efforts, within the limits of the applicable law, to allocate impact fees collected from the Developer to the public improvements which are described in Exhibit H to this Agreement or other improvements in the immediate vicinity of the Project Site. The Interim Project shall not be subject to transportation impact fees. 6. The Interim Proiect. The Interim Project development schedule is attached hereto and made a part hereof as Exhibit D. 3.03. Concurrency. 1. Concurrency Required. The parties hereto recognize and acknowledge that Florida law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J- 5, Florida Administrative Code, collectively the "Growth Management Act") imposes restrictions on development if adequate public improvements are not available concurrently with that development to absorb and handle the demand on public services caused by development. The City has created and implemented a system for monitoring the effects of development on public services within the City. The Developer recognizes and acknowledges it must satisfy the concurrency requirements of Florida law and the City's regulations as applied to this Project. 2. Reservation of Capacity. The City hereby agrees and acknowledges that as of the Effective Date of this Agreement, the Project satisfies the concurrency requirements of Florida law. The City agrees to reserve the required capacity to serve the Project for the Developer and to maintain such capacity until March 6, 2006 fGf a period of three (3) years from the Effective Date of this .l\greement and that such period shall be automatically extended for an additional three (3) years if the Developer commences construction by March 6, 2006 within the initial three (3) year First Amended Development Agreement ADOPTED Page 11 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2214 period. The City recognizes and acknowledges that the Developer will rely upon such reservation in proceeding with the Project. 3. Required Public Facilities. In addition to the obligations of the City and the Developer set out in Article 5 of this Agreement, the Water Utilities Department of the City will provide potable water service and sanitary sewer service to the Project. ARTICLE 4. PLANS AND SPECIFICATIONS. 4.01. Plans and Specifications. 1. Responsibility for Preparation of Plans and Specifications. The Developer shall be solely responsible for and shall pay the cost of preparing, submitting and obtaining approval of the Plans and Specifications for the Project and Interim Project. 2. Use of Qualified Professionals. The Developer shall retain qualified professionals to prepare the Plans and Specifications and shall cause such professionals to prepare the Plans and Specifications. 3. Approval of Plans and Specifications for the ParkinQ Spaces Which Are To Be Available to the Public. In order to ensure that the design of the parking spaces which are to be available to the public will achieve the City's purpose in making parking available on Clearwater Beach, the Plans and Specifications for the Project shall be submitted to the City for review and comment prior to the submission of any application for a building permit, other than a foundation permit. The City agrees to diligently proceed with and complete its review of the Plans and Specifications, and respond to the Developer as soon as reasonably possible after receipt thereof and advise the Developer in writing of the City's comments and objections, if any, thereto. The City shall notify the Developer in writing within thirty (30) days of receipt that the Plans and Specifications have or have not been approved, and in the case of disapproval, the specific reason(s) for such disapproval. If the Plans and Specifications submitted to the City by the Developer substantially comply with this Agreement and further the purposes of the Comprehensive Plan, the City shall approve the Plans and Specifications as submitted. ARTICLE 5. PROJECT DEVELOPMENT. First Amended Development Agreement ADOPTED Page 12 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2215 5.01. Ownership of Project Site. The Developer is the owner of or the contract purchaser of certain parcels of land within the Project Site which are more particularly described in Exhibit A to this Agreement ("Controlled Property"). 5.02. Project Site. The Project Site consists of those properties located in an area which is bounded by the western right-of-way of Coronado Street, on the north by the southern boundary of a parcel of land generally known as the Golden Sands Motel property, on the south by the northern boundary of a parcel of land generally known as the "Legends" property, and on the west by the centerline of South Gulfview as more particularly described in Exhibit C. 5.03. City's Option to Purchase. 1. Parkinq in the Proiect. At any time within five (5) years after the issuance of a certificate of occupancy for the parking spaces within the Project which are to be available to the public, in the event that the City determines that the parking rates charged by the Developer for the parking spaces which are available to the public are unreasonable, which for the purposes of this Paragraph shall be two and thirty five one hundredths (2.35) times the parking rate necessary to cover debt service required to publicly construct a comparable parking space, the City shall have the option to purchase the parking spaces which are to be available to the public from the Developer, in the form of a condominium ownership, at the fair market value of the spaces at the time the City exercises its option. The fair market value of the parking spaces shall be determined by appraisal of the property pursuant to the appraisal instructions attached hereto as Exhibit I. The appraisals shall be conducted by two (2) appraisers retained by the City. One of the appraisers shall be selected from a list of qualified appraisers submitted to the City by the Developer. In the event that the two (2) appraisals are within twenty percent (20%) of each other, the fair market value shall be the average of the two (2) appraisals. In the event that the appraisals differ by more than twenty percent (20%), the two appraisers shall select a third appraiser from the City's master list of qualified appraisers, including the list submitted by the Developer, and the third appraiser shall select among the two (2) appraisals which in the opinion of the third appraiser most accurately represents the fair market value of the parking spaces. 2. The Controlled Property. In the event the Developer fails to commence construction by March 6. 2006, the City aqrees to purchase the Controlled property as described in Exhibit A at fair market value, but First Amended Development Agreement ADOPTED Page 13 PINELLRS COUNTY FLR, . OFF, REC ,BK -=~~=-~~~2_1_~__ ------- in no event shall the purchase price exceed $6,000,000. The fair market value shall be established by an appraisal process. The appraiser shall be directed to establish the value of the property assuminq Third Street and South Gulfview Drive are not vacated and disreqardinq the additional development riqhts (185 hotel units) provided in the Development Aqreement. The appraisal of the Controlled Property shall reflect the hiqher of: (i) the hiqhest and best use of such property at the time of appraisal, or (ii) the value of the Controlled Property with existinq buildinqs and existinq sixty-five (65) units in place at the time of execution of the Development Aqreement (i.e. as existinq in 2002, before demolition, but valued at the time of the appraisal in 2006). The appraisals shall be conducted by two (2) appraisers retained by the City. One of the appraisers shall be selected from a list of qualified appraisers submitted to the City by the Developer. In the event that the two (2) appraisals are within twenty percent (20%) of each other, the fair market value shall be the averaqe of the two (2) appraisals. In the event that the appraisals differ by more than twenty percent (20%), the two appraisers shall select a third appraiser from the City's master list of qualified appraisers, includinq the list submitted by the Developer, and the third appraiser shall select amonq the two (2) appraisals which in the opinion of the third appraiser most accurately represents the fair market value of the property. 5.04. City's Obligations. 1. Vacation of Riqhts-of-Way. The Developer shall apply for and tThe City Commission has shall consider the adoption of adopted an ordinance vacating the right- of-way of 3rd Street between Coronado Avenue and the centerline of the existing right-of-way of South Gulfview Drive and the eastern half of the existing right-of- way of South Gulfview Drive included within the Project Site, as depicted on Exhibit H. The vacation is conditioned on the construction of the Proiect The City Commission hereby extends the time for compliance with the ordinance by 18 months. 2. Beach Bv Desian Densitv Pool. The City aqrees to consider extendinq the Density Pool expiration time by 18 months to December, 2007. 32,. Road and Sidewalk Improvements. The City shall take all actions necessary to allow for the re-alignment of South Gulfview Drive between 151 Street and the Adams Mark Resort and the implementation of the South Gulfview and Beach Walk Improvements, as shown on Exhibit H. South Gulfview Drive, as re-aligned, shall be traffic calmed to control speed. First Amended Development Agreement ADOPTED Page 14 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2217 4~. ParkinQ GaraQe. In the event that the City exercises its option to purchase public parking spaces as provided in Section 5.03 of this Agreement, not less than forty percent (40%) of the parking spaces located on the first two levels of the garage shall be designated as public spaces and such spaces to be conveyed shall be located in discrete areas which are reasonably accessible to the point or points of access to the beach. 54. Permits. The City will cooperate and coordinate with the Developer with regard to all permit applications, including those to state agencies, and will facilitate or expedite, to the greatest extent possible, the permit approval process. 6a. Authority for Cafe SeatinQ. The City shall consider the adoption of a regulation authorizing the use of portions of the west thirty-five (35) feet of the South Gulfview Drive right-of-way existing on the Effective Date of this Agreement for outdoor cafe seating and associated activities in accordance with the terms of Exhibit J, provided that such activities shall not interfere with the use of the west half of the thirty-five (35) feet of the existing right-of- way of South Gulfview Drive for pedestrian and vehicular movement in accordance with the provisions of Beach by Design, including the intra-beach transit system proposed in Beach by Design. 7a. GaraQe Access Improvement Approval. The City shall grant the Developer the authority to construct the Garage Access Improvements and associated pedestrian facilities extending from the Project Site across the re-aligned South Gulfview Drive to public land, as shown on Exhibit H. 87. Concessions. The City shall grant the Developer authority to operate concessions on land to the west of the existing centerline of South Gulfview Drive, subject to any existing franchise or concession rights and compliance with all requirements of the City Code, and subject to a long term license agreement to be approved by the City, substantially in the form as Exhibit L. The license agreement shall be for a term of 50 years, commencing on the date the facilities are available for use, and be subject to a right of termination by the City for an uncured breach of a material obligation by the Developer. Such concessions may include a facility open to the public which provides towels, lockers, minimal beach sundries, chairs, and other beach gear required to operate a first-class beach hotel. Such facilities shall be built into the beach landing portion of the pedestrian overpass, as more particularly depicted on Exhibit H. First Amended Development Agreement ADOPTED Page 15 PINELLRS COUNTY FLR OFF,REC,8K 12189 PG 2218 -----------~- -'----- 98. Removal of ParkinQ. In conjunction with the Project, the City agrees to the removal of the oft-street parking spaces which are located on the beach between the concession building located between 3rd and 5th Streets and the Pier 60 lot (approximately 317 spaces). The new design for the realignment of South Gulfview Drive and the South Gulfview and Beach Walk Improvements, as described in Exhibit H, includes two (2) parking areas of twenty-five (25) parking spaces each on the east side of the re-aligned road. 109. Approval of Plans and Specifications for the South Gulfview and Beach Walk Improvements. The City shall De'.'eloper is obligated to prepare Plans and Specifications for the South Gulfview and Beach Walk Improvements. At least thirty (30) days prior to applying for a building permit for the South Gulfview and Beach VValk Improvements, the Developer shall submit a complete draft of such plans to the City for review and comment. The City shall provide drafts of such plans to the Developer for review and comment. promptly review such plans and provide comments and recommended modifications to the Developer within thirty (30) days of receipt. The 9!Y Developer shall consider incorporate the Developer's ~ comments and recommended changes in the Plans for the South Gulfview and Beach VValk Improvements and the City shall review and approve the plans and specifications 'Nithin thirty (30) days after submission of the Plans and Specifications for the South Gulfvie'.v and Beach '.^.talk Improvements. 11-1-G. Public FinancinQ of Public Improvements. Subject to agreement and request by the Developer, the City shall provide the Developer with financing, to the extent permitted by law without a referendum, provided that such debt will be serviced only by special revenues generated by the Project. The maximum amount of the financing shall depend on the final design of the South Gulfview and Beach Walk Improvements and the net cost of construction. The cost of the South Gulfview and Beach Walk Improvements shall be net of any credits against impact fees which are available under existing law and the Developer's fair share of the South Gulfview and Beach Walk Improvements. The City agrees to make the following sources of revenue available for debt service of any public financing for the South Gulfview and Beach Walk and Garage Access Improvements: a. Net operating income from the fifty (50) new parking spaces created as a part of the South Gulfview and Beach Walk Improvements; and First Amended Development Agreement ADOPTED Page 16 PINELLRS COUNTY FLR, OFF,REC.8K 12189 PG 2219 b. Fifty percent (50%) of the net increase in municipal ad valorem taxes and utility taxes generated by the Project. 12.:t-:1-. Timely Completion. The City recognizes the public importance of the timely completion of the proposed improvements, and time is deemed to be of the essence. The City considers this Agreement as overall authority for the Developer to proceed to permit, and agrees to implement a fast-track review, permitting, and inspection program for this Project. 1342. Additional Public ParkinQ. The City agrees that the City will not use public funds to provide more than three hundred (300) additional parking spaces (net increase in the number of spaces above the number of public parking spaces in existence on the effective date of this Agreement) which are available for use by the public within a radius of a quarter-mile of the Project Site for a period of five (5) years after the issuance of a certificate of occupancy for the Project, unless otherwise agree to by the Parties. 5.05. Obligations of the Developer. 1 Resort Hotel and ParkinQ GaraQe Project. The Developer shall build and operate a two hundred and fifty (250) room resort hotel to be operated as a Marriott resort or other comparable international hotel/resort management company together with a parking garage containing at least seven hundred and fifty (750) parking spaces. In the event that the Developer determines to operate the resort hotel under a different "hotel/resort" name, the Developer shall obtain the City's approval, which shall not be unreasonably withheld, providing that the reputation and- qualifications are comparable to the Marriott organization. The parking spaces shall be no narrower than nine (9) feet and no shorter than eighteen (18) feet, and no two-way aisle shall be less than twenty five (25) feet in width. 2 Responsibility for On-Site Costs. The Developer shall be responsible for all on-site costs relative to the development of the Project, including the parking spaces which are required to be open to the public. 3 ParkinQ. The Developer agrees to make at least four hundred (400) parking spaces within the Project available to the general public within the parking garage. The Developer may charge the public for use of the parking spaces which are available to the general public on terms and rates which are market-based and commensurate with terms and rates which are in effect for comparable beachfront, covered parking structures in Florida resort areas. First Amended Development Agreement ADOPTED Page 17 PINELLRS COUNTY FLR OFF.REC,8K 12189 PG 2220 4 South Gulfview and Beach Walk and GaraQe Access Improvements. The Developer shall be responsible for the design and construction of the South Gulfview and Beach Walk and Garage Access Improvements. 5 Cost of South Gulfview and Beach Walk and GaraQe Access Improvements. The Developer shall be responsible for funding the total cost of the South Gulfview and Beach Walk and Garage Access Improvements, subject only to the following: a. In the event that impact fee credits are available to the Developer, such credits shall be credited to the Developer against the cost of the South Gulfview and Beach Walk Improvements. b. The Developer shall be responsible for a pro rata share of the cost of the South Gulfview and Beach Walk Improvements which shall be equal to the net cost of the South Gulfview and Beach Walk Improvements multiplied by a fraction in which the front footage of the Project Site is the numerator and the total frontage along South Gulfview and Beach Walk Improvements is the denominator. SPR = (F PRoiF SGBW) x (CSGBW) SPR = Pro Rata Share FpROJ = Frontage of Project Site FsGBW = Total Frontage along South Gulfview and Beach Walk Improvements CsGBW = Net Cost of South Gulfview. and Beach Walk Improvements c. In the event that any property which fronts on the South Gulfview and Beach Walk Improvements is proposed for redevelopment using the pool of additional resort units established pursuant to Beach by Design, the developer of such property shall be required to pay a pro rata share of the cost of the South Gulfview and Beach Walk Improvements as a condition of development approval. The pro rata share shall be equal to the total cost of the Improvements multiplied by a fraction in which the front footage of the Project Site is the numerator and the total frontage along South Gulfview and Beach Walk Improvements is the denominator. First Amended Development Agreement ADOPTED Page 18 PINELLRS COUNTY FLR, OFF,REC.8K 12189 PG 2221 SPR = (F PRoiF SGBW) X (CSGBW) SPR = Pro Rata Share FpROJ = Frontage of Project Site FSGBW = Total Frontage along South Gulfview and Beach Walk Improvements CSGBW = Net Cost of South Gulfview and Beach Walk Improvements The pro rata share paid by any such other developer shall be promptly applied to the outstanding principal on any indebtedness incurred to fund the South Gulfview and Beach Walk Improvements. d. The net operating income from the fifty (50) surface parking spaces which are constructed as a part of the South Gulfview and Beach Walk Improvements shall be available to repay the Net Cost of the South Gulfview and Beach Walk Improvements and the Garage Access Improvements, for a period of time not to exceed twenty-five (25) years. e. The City shall make an amount available equal to fifty percent (50%) of the net increase in municipal ad valorem and utility taxes above the ad valorem and utility taxes generated y the improvements existing on the Project Site on the Effective Date of this Development Agreement to repay any private indebtedness incurred to repay the Net Cost of the South Gulfview and Beach Walk Improvements and the Garage Access Improvements, for a period of time not to exceed twenty-five (25) years. f. The incremental utility tax, a portion of which is to be made available to service the debt incurred to construct South Gulfview and Beach Walk Improvements and the Garage Access Improvements, shall be the increase in utility taxes above the amount of annual utility taxes paid by the owners of the existing improvements on the Project Site in the twelve (12) months preceding the Effective Date of this Agreement, as documented by the Developer. In the event that the Developer fails, for any reason, to document the annual utility taxes paid by the owners of the existing improvements on the Project Site in the twelve (12) months preceding the Effective Date of this Agreement, the incremental utility tax which is to be made available to service the debt incurred to construct South Gulfview and First Amended Development Agreement ADOPTED Page 19 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2222 Beach Walk Improvements and the Garage Access Improvements shall be the increase in utility taxes above the amount of annual utility taxes paid by the Developer during the first year of operation of the Project, which amount shall be provided to the City within thirty (30) days after the end of the first year of operation. 6. Financinq of Improvements a. In the event that the public financing provided for in Paragraph 10 of Section 5.04 of this Development Agreement is, for any reason, unavailable to fund any portion of or all of the Net Cost of the South Gulfview and Beach Walk Improvements and the Garage Access Improvements, the Developer shall provide the financing required to fund the total cost of the improvements. b. In the event that public financing is available for all or a portion of the Net Cost of the South Gulfview and Beach Walk Improvements and the Garage Access Improvements, and the Developer provides additional financing pursuant to this paragraph, the Developer shall be entitled, for a period of not more than twenty-five (25) years, to receive an annual payment equal to fifty percent (50%) of the additional incremental ad valorem taxes plus the difference between fifty percent (50%) of the incremental utility tax generated by the Project and the amount required to service the public debt. 7. Other Improvements. The City shall have an option to require the Developer to include the portions of the Additional South Gulfview and Beach Walk Improvements which are described in Exhibit H on a "turn key" basis, provided that the City pays all costs of such share of the South Gulfview and Beach Walk Improvements, including reasonable developer's fees. The City's option period shall be for a term of twelve (12) months from the Effective Date of this Agreement. If the City declines to exercise its option and its twelve (12) months option period expires, then, upon written notice to the City within thirty (30) days after the expiration of the option, the Developer may elect to fund and construct these improvements, and then include the cost of the additional improvements in the South Gulfview and Beach Walk Improvements financing. 8. Covenant of Unified Use. The Developer hereby agrees to execute the covenant of unified use and development for the Controlled Property providing that the Controlled Property shall be developed as a single project and operated and used as a unified mixed use First Amended Development Agreement ADOPTED Page 20 PINELLRS COUNTY FLR, OFF,REC.8K 12189 PG 2223 project, which is attached as Exhibit K; provided however, that nothing shall preclude the Developer from selling all or a portion of the Controlled Property in a condominium form of ownership. 9. Quality and Value. The Developer shall design and construct the South Gulfview and Beach Walk Improvements described in Exhibit H as a high quality product in keeping with Beach by Design and the Seashell/Marriott design, subject only to a final budget which the Parties agree is approximately three million five hundred thousand dollars ($3,500,000.00) for the South Gulfview and Beach Walk Improvements not including the Additional South Gulfview Improvements to the south of the beach concession building, as depicted as Phase B in Exhibit H ("Additional South Gulfview Improvements"). 10. Project Obliqations. The Developer agrees to carry out the redevelopment of the Project Site by completing the purchase of all of the Controlled Property, preparing project plans and specifications, obtaining approvals by governmental authorities necessary for development of the Project, constructing various private improvements on the Project Site and operating the Project as a unified and integrated project. The Developer shall take all actions necessary to maintain control of the Project Site, until a certificate of occupancy is issued by the City. 11. Dedication of Riqht-of-Way. Prior to the issuance of a building permit, other than a foundation permit, authorizing the construction of the resort hotel units, the Developer shall dedicate ten (10) feet along the entire eastern boundary of the Project Site, including any land previousiy included within the right-of-way of Third Street to the City as additional right-of-way for Coronado Avenue. 12. Commencement of Construction. The Developer shall commence construction of the Interim Project within twelve (12) months of the Effective Date of this Agreement.:., The Developer shall commence construction of the Project by March, 2006, unless the City shall have failed to gain approval of a Community Redevelopment District, of which the Project Site is a part, as provided for in Section 3.01 of this Agreement ("Commencement Date"), or as soon thereafter as possible after the authority for the Community Redevelopment District becomes effective and shall thereafter diligently pursue completion of the Project. 13. Construction and Performance Completion Bond, Prior to commencing construction of the South Gulfview and Beach Walk Improvements and the Garage Access Improvements, and, in the First Amended Development Agreement ADOPTED Page 21 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2224 event that the City exercises its option in regard to the Additional South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, the Developer shall provide the City with a performance bond in a form acceptable to the City guaranteeing the completion of the South Gulfview and Beach Walk Improvements and the Additional South Gulfview Improvements. 14. The Developer shall construct the Interim Project and lease the same to the City per terms of the Interim Proiect Lease. The Interim Project shall be completed by the Developer on or before twelve (12) months followin!=! full approval of same by the City. The City shall operate the Interim Project and shall receive all profits and/or losses as relates to such operations. The Interim Project shall terminate ninety (90) days after the Developer shall provide to City in writin!=! a notice of Interim Project termination. Upon receipt of such notice, the Interim Proiect Lease shall be terminated. 15. Developer shall immediately conclude purchase of all of the Controlled Property and shall obtain commercial financin!=! at Developer's expense and shall therewith commence and timely complete construction of the Interim Project. Durin!=! such process, Developer shall prepare Interim Project plans and specifications and shall obtain approvals of all !=!overnmental authorities as necessary for development of the Interim Proiect. The Developer shall take all actions necessary to maintain control of the Project site durin!=! construction of the Interim Project until a certificate of completion shall have been issued by the City, and the City shall have taken possession of the Project site pursuant to the Interim Project Lease. ARTICLE 6. PROJECT FINANCING. 6.01. Notice of Project Financing to City. As soon as the Developer shall have obtained any financing for any portion of the Project, the Developer shall provide the City with a sworn statement identifying the Project Lender(s) and documenting the type of financing that the Project Lender(s) has issued in favor of the Developer for the Project. 6.02. Copy of Default Notice to City. The Developer covenants and agrees that any Project Construction Financing documents shall include provisions which provide that in the event any Project Financing shall become due and payable by maturity or acceleration, the Project Lender shall give written notice thereof to the City by certified mail, return receipt requested. Such notice from the Project Lender to the City shall state the First Amended Development Agreement ADOPTED Page 22 PINELLRS COUNTY FLR, OFF,REC.8K 12189 PG 2225 basis of the default by the Developer and shall include copies of any pleadings in any proceeding instituted by the Project Lender(s) incident thereto. 6.03. City Option to Pay Mortgage Debt or Purchase Project Following Commencement of Construction of Project. 1. Assignment of Mortgage. Any mortgage instrument pertaining to any portion of the Project Site in effect prior to issuance of the Construction Completion Certificate for such portion of the Project Site shall provide that following a failure of the Developer to repay any Project Financing which shall become due and payable by maturity or acceleration, the City is entitled, upon giving reasonable written 'notice to the Developer, the Project Lender(s) and any other holder of such a mortgage, to an assignment of the mortgage securing the Construction Financing by paying to the Project Lender an amount of money not to exceed a sum equal to the amount of money advanced by the Project Lender(s) to the Developer with respect to the Project Site, together with unpaid accrued interest on such amount, prepayment penalties, and all other accrued charges of the Project Lender(s) (including, without limitation, reasonable attorneys' fees incurred as a result of a default by the Developer under the Project Construction Financing). 2. Entitlement to Conveyance. If prior to the issuance of a Construction Completion Certificate, the ownership of any part of the Project located thereon has vested in a Project Lender(s) or any other person by foreclosure or any other action in lieu thereof, the City shall be entitled, at its election exercisable within sixty (60) days after the Project Lender(s) or other person obtains or receives title to the Project Site or part of the Project Site by notice to such Project Lender(s) or other person, to a conveyance of the Project Site or that part of the Project for which ownership has vested in the Project Construction Lender or other person to the City upon payment to the Project Lender(s) or other person of an amount not greater than the sum of (i) the larger of the money advanced by the Project Lender(s) or other person to the Developer with respect to that Parcel and due and owing at the time of the foreclosure or any other action in lieu thereof or the amount paid at foreclosure, less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings; (ii) all reasonable expenses of the Project Lender(s) or other person incurred in connection with the foreclosure of the Parcel or part of the Project; (iii) the expense, if any, incurred by the Project Lender(s) or other person in and as a direct result of the subsequent management of the Project; (iv) any prepayment First Amended Development Agreement ADOPTED Page 23 PINELLRS COUNTY FLR, OFF ,REC,8K 12189 PG 2226 penalties and (v) an amount equivalent to the interest that would have accrued on the aggregate of such amount had all such amounts become part of the money advanced by the Project Lender (s) or other person to the Developer with respect to the Project Site and such money advanced had continued to be due and owing; and less income resulting from the management of the Project subsequent to the termination of foreclosure proceedings or the date that the Project Lender(s) or other person obtained title to the Project Site by deed in lieu of foreclosure, whichever is the earlier. ARTICLE 7. CONSTRUCTION OF SOUTH GULFVIEW AND BEACH WALK IMPROVEMENTS AND GARAGE ACCESS IMPROVEMENTS. 7.01. Site Work. The Developer shall be responsible for all site investigation, environmental testing, demolition and site clearing in regard to the construction of the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.04(1) of this Agreement and the Garage Access Improvements. 7.02. Construction. 1. Commencement. The Developer shall construct the South Gulfview and Beach Walk Improvements, the Additiona1 South Gulfview and Beach Walk Improvements in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.04(1) of this Agreement, and the Garage Access Improvements, substantially in accordance with the Plans and Specifications therefor. The Developer shall commence construction by March 2006 'A'ithin twelve (12) months after the Effective Date of this J\greement in accordance with Section 5.05(12), unless the City shall have failed to gain approval of a Community Redevelopment District, of 'Nhich the Project Site is a part, as provided f-or in Section 3.01 of this Agreement ("Commencement Date"), or as soon thereafter as possible after the authority for the Community Redevelopment District becomes effective and shall thereafter diligently pursue completion of the Project. a. For purposes of this Section 7.02, "commence construction" means commencement of meaningful physical development of that part of the Project as authorized by the Building Permit therefor which is continued and diligently prosecuted toward completion of that part of the Project. First Amended Development Agreement ADOPTED Page 24 PINELLRS COUNTY FLR, OFF.REC,8K 12189 PG 2227 b. All obligations of the Developer (including deadlines in the Commencement Date) with respect to commencement and continuation of construction in regard to the Sought Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.0"1(1) of this Agreement and the Garage Access Improvements, shall be subject to delays and extensions from time to time for Unavoidable Delay (see Article 15). The Developer shall not be deemed to be in default of this Agreement to the extent construction of the Project, or a part thereof, is not complete by reason of Unavoidable Delay. 2. Pursuit of Construction. After the Commencement Date, the Developer shall continue, pursue and prosecute the construction of the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.0"1(1) of this Agreement, and the Garage Access Improvements with due diligence to completion, and shall not at any time actually or effectively have abandoned (or its Contractor having actually or effectively abandoned) the work. For purposes of this subsection (b), "abandoned" means to have ceased any construction work which effectively advances the construction of the work toward completion, including removing all or substantially all of the construction work force from the site of the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.04(1) of this Agreement, and the Garage Access Improvements. 3. Payment of Contractors and Suppliers. The Developer shall promptly pay, or arrange to be paid, all moneys due and legally owing to all persons or organizations doing any work or furnishing any materials, fuel, machinery or supplies to the Developer or any Contractors in connection with construction of any part of the South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.04(1) of this Agreement, and the Garage Access Improvements. 4. Maintenance of Construction Site. During the construction of the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.0"1(1) of this Agreement, and the Garage Access Improvements, the Developer shall, at its own expense, keep the site of the South First Amended Development Agreement ADOPTED Page 25 PINELLRS COUNTY FLR, OFF ,REC,8K 12189 P~_~228 -~------- -~- Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.0'1(1) of this Agreement, and the Garage Access Improvements in good and clean order and condition, and the Developer shall promptly make all necessary or appropriate repairs, replacements and renewals thereof, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen. All repairs, replacements and renewals shall be equal in quality and class to the original work. When making such repairs, replacements or renewals, the Developer shall comply with all laws, ordinances, codes and regulations then applicable to that part of the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.0'1(1) of this Agreement, and the Garage Access Improvements. The Developer shall have the right, after written notice to the City, to contest by appropriate legal proceedings conducted in good faith, the validity or applicability of any such law, ordinance, code or regulation, and to delay compliance therewith pending the prosecution of such proceeding, provided that such contest shall be in accordance with the Right to Contest provisions of Article 13. 7.03 Construction Completion Certificate. 1. For purposes of this Section 7.03, "completion, "complete," "substantially complete" or "substantial completion" means, with respect to construction of part of the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.04(1) of this Agreement, and the Garage Access Improvements, shall be the acceptance of the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.04(1) of this Agreement, and the Garage Access Improvements by the City. 2. Upon the substantial completion of the construction of each part of the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.0'1(1) of this Agreement, and the Garage Access Improvements in accordance with the provisions of the Plans and Specifications, the Developer shall prepare and execute the Construction Completion Certificate, which shall then be delivered to the City. Upon receipt First Amended Development Agreement ADOPTED Page 26 PINELLRS COUNTY FLR, OFF ,REC,8K 12189 PG 2229 of the certificate, the City shall promptly and diligently proceed to determine if construction of the Project has been completed substantially in accordance with the Plans and Specifications and this Agreement. Upon making such a determination, the City shall execute the certificate and return it to the Developer. The date of the Construction Completion Certificate shall be the date when all parties shall have executed said certificate. 3. The Construction Completion Certificate shall constitute a conclusive determination by the parties hereto of the satisfaction and termination of the obligations of the Developer hereunder to construct the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.0'1(1) of this Agreement, and the Garage Access Improvements described in the certificate; provided, however, that nothing in this Section shall be a waiver of the rights, duties, obligations or responsibilities of the City or any other governmental entity acting in its regulatory or governmental capacity or an approval of said construction. 4. If the City shall refuse or fail to execute the Construction Completion Certificate after receipt of a request by the Developer to do so, then the City shall, within ten (10) days after its receipt of such request, provide the Developer with a written statement setting forth in reasonable detail the reason(s) why the City has not executed the Construction Completion Certificate and what must be done by the Developer to satisfy such objections so that the City would sign the certificate. Upon the Developer satisfying the City's objections, then the Developer shall submit a new request to the City for execution of the Construction Completion Certificate and that request shall be considered and acted upon in accordance with the procedures in this Section for the original request. 5. If the City refuses to execute the certificate and the Developer does not agree with the objections set forth in the City's statement, then the Developer may invoke the arbitration procedures set forth in Article 14 hereof for the purpose of determining if the prerequisites for execution by all parties of the Construction Completion Certificate have been met, and if not, what actions must be taken to satisfy such prerequisites. 6. The Construction Completion Certificate shall be in a form sufficient to be recorded in the public records of Pinellas County, Florida. After execution by the City, it shall be promptly returned to the First Amended Development Agreement ADOPTED Page 27 PINELLRS COUNTY FLR, OFF ,REC,8K 12189 PG 2230 ~,-------------- Developer who shall record the certificate in the public records of Pinellas County, Florida, and pay the cost of such recording. 7.04 City Not in Privity. The City shall not be deemed to be in privity of contract with any Contractor or provider of services with respect to the construction of any part of the Project not constituting all or any part of public improvements. 7.05 Construction Sequencing and Staging Area. The Developer shall construct the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements, in the event that the City exercises its option pursuant to Paragraph 5.05(7) 5.0"1 (1) of this Agreement, and the Garage Access Improvements in a manner and fashion which will minimize the inconvenience of the construction on the property owners of Clearwater Beach and the residents of the City. Two (2) lanes of two (2) way traffic capacity shall be maintained between First Street and the southern end of the site of the South Gulfview and Beach Walk Improvements, the Additional South Gulfview and Beach Walk Improvements in the event that the City exercises its option pursuant to Paragraph 5.04(1) of this Agreement and the Garage Access Improvements during the months of March, April, June, July and August and whenever reasonably practicable during the rest of the year. To the extent reasonably practicable, the Developer shall make as many of the existing parking spaces available for public use during construction. The City agrees to allow Developer to use a portion of the area of the 'existing surface parking lot located to the west of the Project Site which is designated by the City for construction staging and Project office, during construction of the Project, without charge to the Developer, provided that such staging area and Project office does not unreasonably affect the maintenance of traffic provided for in this Paragraph. ARTICLE 8. INDEMNIFICA TON. 8.01. Indemnification by the Developer. 1. The Developer agrees to indemnify, defend and hold harmless, the City, its respective agents, officers, or employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of any act or omission of the Developer, its agents, employees or contractors arising out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such services. First Amended Development Agreement ADOPTED Page 28 PINELLRS COUNTY FLR, OFF,REC.8K 12189 PG 2231 2. The Developer shall indemnify, defend and hold harmless the City, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the Developer, as the case may be, of any representations or warranties contained in Section 9.01, or covenants contained in Section 9.02. 3. The Developer's indemnity obligations under subsections (1) and (2) of this Section shall survive the earlier of the Termination Date or the Expiration Date, but shall apply only to occurrences, acts, or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. 4. The Developer's indemnity hereunder is in addition to and not limited by any insurance policy and is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, nor as a waiver of sovereign immunity for any party entitled to assert the defense of sovereign immunity. 8.02. Indemnification by the City. 1. To the extent permitted by law, the City agrees to indemnify, defend and hold harmless, the Developer, its respective officers, and employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of, any act or omission of the City, its respective agents or employees arising out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such services. 2. The City shall indemnify, defend and hold harmless the Developer, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the City, as the case may be, of any representations or warranties contained in Section 10.01, or covenants contained in Section 10.02. 3. The City's indemnity obligations under this Section 10.02 shall survive the earlier of the Termination Date or the Expiration Date, First Amended Development Agreement ADOPTED Page 29 PINELLRS COUNTY FLR, OFF, REC-,-8K _1~~~!..:'_~232 but shall only apply to occurrences, acts or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. The City's indemnity hereunder is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, but is in addition to and not limited by any insurance policy provided that said obligation shall not be greater than that permitted and shall be limited by the provisions of Section 768.28, Florida Statutes, or any successor statute thereto. 8.03. Limitation of Indemnification. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations of the Developer (as set forth in Section 8.01) and the City (as set forth in Section 8.02), the following shall apply: 1. The indemnifying party shall not be responsible for damages that could have been, but were not, mitigated by the indemnified party; 2. The indemnifying party shall not be responsible for that portion of any damages caused by the negligent or willful acts or omissions of the indemnified party; and 3. There shall be no obligation to indemnify hereunder in the event that the indemnified party (1) shall have effected a settlement of any claim without the prior written consent of the indemnifying party, or (2) shall not have subrogated the indemnifying party to the indemnified party's rights against any third party by an assignment to the indemnifying party of any cause or action against such third party. ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER. 9.01. Representations and Warranties. The Developer represents and warrants to the City that each of the following statements is currently true and accurate and agrees the City may rely upon each of the following statements: 1. The Developer is a Florida Limited Liability Company duly organized and validly existing 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 its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party, is qualified to do business in the State of Florida, and has consented to service of process upon a designated agent for service of process in the State of Florida. First Amended Development Agreement ADOPTED Page 30 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2233 2. This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Developer, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof: (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, (iii) contravenes or results in any breach of, default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the Developer's Articles of Incorporation, or, any other agreement or instrument to which the Developer is a party or by which the Developer may be bound. 3. This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Developer enforceable against the Developer in accordance with the terms thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. 4. There are no pending or, to the knowledge of the Developer threatened actions or proceedings before any court or administrative agency against the Developer, or against any controlling shareholder, officer, employee or agent of the Developer which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Developer. 5. The Developer has filed or caused to be filed all federal, state, local and foreign tax returns, if any, which were required to be filed by the Developer and has paid, or caused to be paid, all taxes shown to be due and payable on such returns or on any assessments levied against the Developer. First Amended Development Agreement ADOPTED Page 31 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2234 6. All financial information and other documentation, including that pertaining to the Project or the Developer, delivered by the Developer to the City was, on the date of delivery thereof, true and correct. 7. The principal place of business and principal executive offices of the Developer is in Dunedin, Florida, and the Developer will keep records concerning the Project (such as construction contracts, financing documents and corporate documents) and all contracts, licenses and similar rights relating thereto at an office in Pinellas or Hillsborough Counties. 8. As of the Effective Date, the Developer will have the financial capability to carry out its obligations and responsibilities in connection with the development of the Project as contemplated by this Agreement. 9. The Developer has the experience, expertise, and capability to develop, cause the construction, and complete the Project and, oversee and manage the design, planning, construction, completion and opening for business of the Project. 9.02. Covenants. The Developer covenants with the City that until the earlier of the Termination Date or the Expiration Date: 1. The Developer shall timely perform or cause to be performed all of the obligations contained herein which are the responsibility of the Developer to perform. 2. During each year that this Agreement and the obligations of the Developer under this Agreement shall be in effect, the Developer shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals and shall cause to occur those events contemplated by this Agreement that are applicable to, and that are the responsibility of, the Developer. 3. The Developer shall assist and cooperate with the City to accomplish the development of the Project by the Developer in accordance with the Plan and Specifications, and this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts or agreements that are or will be applicable thereto. 4. Subsequent to the Effective Date, the Developer shall maintain its financial capability to develop, construct and complete the Project and shall promptly notify the City of any event, condition, First Amended Development Agreement ADOPTED Page 32 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2235 --------~~-----------'--------~"--- occurrence, or change in its financial condition which adversely affects, or with the passage of time is likely to adversely affect, the Developer's financial capability to successfully and completely develop, construct and complete the Project as contemplated hereby. 5. The Developer shall promptly cause to be filed when due all federal, state, local and foreign tax returns required to be filed by it, and shall promptly pay when due any tax required thereby. 6. Subject to Section 18.01, the Developer shall maintain its existence, will not dissolve or substantially dissolve all of its assets and will not consolidate with or merge into another corporation, limited partnership, or other entity or permit one or more other corporations or other entity to consolidate with or merge into it without the prior approval of the City unless the Developer retains a controlling interest in the consolidated or merged corporation, and will promptly notify the City of any changes to the existence or form of the corporation or any change in the controlling shareholders, officers or directors of the Developer. 7. Other than sales and assignments contemplated by this Agreement, the Developer shall not sell, lease, transfer or otherwise dispose of all or substantially all its assets without adequate consideration and will otherwise take no action which shall have the effect, singularly or in the aggregate, of rendering the Developer unable to continue to observe and perform the covenants, agreements, and conditions hereof and the performance of all other obligations required by this Agreement. 8. Except for the removal of any structures, plants, items or other things from the Project Site necessary for construction of the Project to commence and continue, the Developer shall not permit, commit, or suffer any waste or impairment of the Project or the Project Site prior to the Completion Date. 9. Provided all conditions precedent thereto have been satisfied or waived as provided herein, the Developer shall acquire the Controlled Property as provided in Article 5 hereof and shall pay the Purchase Price, as the case may be, when due and payable as provided therein. 10. Provided all conditions precedent thereto have been satisfied or waived as provided herein, the Developer shall design, construct and complete the Project such that it is substantially complete as First Amended Development Agreement ADOPTED Page 33 PINELLRS COUNTY FLR OFF.REC,8K 12189 PG 2236 '--._--~~------------------,----- provided in this Agreement no later than the Project Completion Date. ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY. 10.01. Representations and Warranties. The City represents and warrants to the Developer that each ofthe following statements is currently true and accurate and agrees that the Developer may rely on each of the following statements: 1. The City is a validly existing body corporate and politic of the State of Florida, has all requisite corporate power and authority to carry on its business as now conducted and to perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party. 2. This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the City, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the City, (Hi) contravenes or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the City under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the City is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the City outstanding on the Effective Date. 3. This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of the City enforceable against the City in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual First Amended Development Agreement ADOPTED Page 34 PINELLRS COUNTY FLR, OFF,REC.8K 12189 PG 2237 equitable principles in the event that equitable remedies are involved. 10.02. Covenants. The City covenants with the Developer that until the earlier of the Termination Date or the Expiration Date: 1. The City shall timely perform, or cause to be performed, all of the obligations contained herein which are the responsibility of the City to perform. 2. During each year that this Agreement and the obligations of the City under this Agreement shall be in effect, the City shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals, and shall cause to occur those events contemplated by this Agreement that are applicable to and are the responsibility of the City. 3. The City shall assist and cooperate with the Developer to accomplish the development of the Project in accordance with this Agreement and the Plans and Specifications, will carry out its duties and responsibilities contemplated by this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts, or agreements that are or will be applicable thereto, and, to the extent permitted by law, the City will not enact or adopt or urge or encourage the adoption of any ordinances, resolutions, rules regulations or orders or approve or enter into any contracts or agreements, including issuing any bonds, notes, or other forms of indebtedness, that will result in any provision of this Agreement to be in violation thereof. 4. Except for the demolition of existing structures on the Project Site and the removal of objects from the Project Site as contemplated by this Agreement, the City shall not permit, commit, or suffer any waste or impairment to the Project Site, nor shall the City request or recommend any rezoning of the Project Site, or any part thereof, which will prevent or adversely affect the development of the Project. 5. The City shall maintain its financial capability to carry out its responsibilities as contemplated by this Agreement and shall notify the Developer of any event, condition, occurrence, or change in its financial condition which adversely affects, or with the passage of time is likely to adversely affect, the City's financial capability to carry out its responsibilities contemplated hereby. ARTICLE 11. CONDITIONS PRECEDENT. First Amended Development Agreement ADOPTED Page 35 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2238 --._._---~-------"'~----.,----"._- 11.01. The Developer Acquiring Project Site. Unless this Agreement has been terminated pursuant to Article 12 hereof, the obligation of the Developer to acquire the Project Site is subject to the fulfillment to the satisfaction of, or waiver in writing by, the Developer of each of the following conditions precedent: 1 . The Developer shall have received evidence satisfactory to the Developer that the Project Site permits the uses contemplated in this Agreement. 2. The Plans and Specifications as are required for issuance of the Building Permit required to commence construction of the Interim Project shall have been approved by the City in accordance with applicable ordinances, land use regulations, building codes and other regulations of the City. 3. The Developer shall have obtained commitments from the Interim Project Construction Lender as provided in Article 6 hereof. 4. The City and Developer shall have executed the Interim Project Lease. The City shall have closed and vacated any streets, alleys or other public rights of 'Nay as may be necessary for the construction and use of the Project Site according to the Plan and Specifications, this Agreement and approved by resolution the abandonment of all such rights of W3Y in favor of the Developer, provided however that the abandonment 'A'ill not be effective unless and until the Construction Financing Commitment is obt3ined from the Developer as required by Article 6 herein. 5. All Permits and the Building Permit necessary for construction of the Project to commence shall have been issued. 11.02. Construction of Project. Subject to termination of this Agreement pursuant to Article 12, the obligation of the Developer to commence construction of the Project on the Commencement Date is subject to the fulfillment to the satisfaction of, or waiver in writing by, the Developer of the following conditions: 1. The Plans and Specifications that are necessary to commence construction shall have been approved by the City, and the initial Building Permit for the commencement of construction of that part of the Project and all other Permits necessary for construction to commence have been issued. 2. The vacation of rights-of-way as provided in Section 5.04(1) hereof. First Amended Development Agreement ADOPTED Page 36 PINELLRS COUNTY FLR, OFF,REC.8K 12189 PG 2239 11.03. Responsibilities of the Parties for Conditions Precedent. The parties hereto shall not, individually or collectively, knowingly, intentionally or negligently prevent any condition precedent from occurring; provided, however, nothing in this Section is intended or shall be deemed to deny any party the right to reasonably exercise its discretion to the extent permitted by law or this Agreement. ARTICLE 12. DEFAULT; TERMINATION. 12.01. Project Default by the Developer. 1. There shall be an "event of default" by the Developer pertaining to the entire Project upon the occurrence of anyone or more of the following: a. The Developer shall fail to perform or comply with any material provision of this Agreement applicable to it within the time prescribed therefor, after receipt of a notice from the City pursuant to Paragraph 12.02(2)(a); or b. The Developer shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding, or shall 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 c. 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; or 2. First Amended Development Agreement ADOPTED Page 37 PINELLRS COUNTY FLR OFF,REC,8K 12189 PG 2240 a. If an event of default by the Developer described in subsection (1) above shall occur, the City shall provide written notice thereof to the Developer, and, if such event of default shall not be cured by the Developer within thirty (30) days after receipt of the written notice from the City specifying in reasonable detail the event of default by the Developer, or if such event of default is of such nature that it cannot be completely cured within such time period, then if the Developer shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary (provided, however, if the Developer is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of the City being required, but such approval will be required if the curative period is to be extended beyond six (6) months (after the notice of default has been given by the City to the Developer and such extended curative period may be ended by the City electing to do so upon any Project lender finding the Developer to be in default of any Project Financing and the curative period therefor has expired without such event of default being cured) then, in addition to any remedy available under Section 12.05, the City may terminate this Agreement or pursue any and all legal or equitable remedies to which the City is entitled, provided, however, if the Developer shall fail to cure such event of default within said thirty (30) day or longer period or ceases to proceed diligently to timely cure such event of default, then the City may proceed to enforce other available remedies without providing any additional notice to the Developer. b. Any attempt by the City to pursue any of the above referenced remedies will not be deemed an exclusive election of remedy or waiver of the City's right to pursue any other remedy to which either may be entitled. c. Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. First Amended Development Agreement ADOPTED Page 38 PINELLRS COUNTY FLR OFF.REC,8K 12189 PG 2241 3. Subject to the rights of the Project Lender, if the City elects under Section 6.03 to cure a default under Subsection 12.01 (1) by the Developer, construction contracts, contract documents, building permits, development permits, management agreements, and financial commitments (all only to the extent assignable) with respect to the Project shall, if such default has not been previously cured, on the day following receipt by the Developer of notice from the City of its election to cure under Section 6.03, be deemed then assigned to the City making said election, without necessity of any other action being taken or not taken by any party hereto. The Developer shall transfer and deliver to the City upon making said election, all assignable Plans and Specifications, working drawings, construction contracts, contract documents, financial commitments, management agreements, and all Permits, and, at the direction of the City, the defaulting the Developer shall vacate the Parcel(s). 4. Notwithstanding any provision of this Section, a default by the Developer shall not affect the title of any condominium unit or common area conveyed by the Developer to an unrelated third party or to a condominium association which is not controlled by the Developer. 12.02. Default by the City. 1. Provided the Developer is not then in default under Section 12.01, there shall be an "event of default" by the City under this Agreement in the event the City shall fail to perform or comply with any material provision of this Agreement applicable to it; provided, however, that suspension of or delay in performance by the City during any period in which the Developer is in default of this Agreement as provided in Section 12.01 hereof will not constitute and event of default by the City under this Subsection 12.02. 2. a. If an event of default by the City described in 12.02(1) shall occur, the Developer shall provide written notice thereof to the City, and, after expiration of the curative period described in paragraph (b) below, may terminate this Agreement, institute an action to compel specific performance of the terms hereof by the City or pursue any and all legal or equitable remedies to which the Developer is entitled; provided, however, if the event of default by the City occurs, any monetary recovery by the Developer in any such action shall be limited to bona fide third-party out-of-pocket costs and expenses, including reasonable attorneys' fees, incurred by the Developer in connection with this Agreement and the transactions contemplated hereby, unless any such First Amended Development Agreement ADOPTED Page 39 PINELLRS COUNTY FLR, OFF.REC,8K 12189 PG 2242 default by the City was willful and committed in bad faith with reckless disregard for the rights of the Developer. c. Any attempt by the Developer to pursue any of the remedies referred to in paragraphs (a) and (b) above will not be deemed an exclusive election of remedy or waiver of the Developer's right to pursue any other remedy to which it might be entitled. d. Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. 12.03. Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to the contrary, the specified rights and remedies to which either the City or the Developer are entitled under this Agreement are not exclusive and are intended to be in addition to any other remedies or means of redress to which the City or the Developer may lawfully be entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in, the performance of its obligations by the Developer while the City shall at such time be in default of their obligations hereunder shall not be deemed to be an "event of default." The suspension of, or delay in, the performance of the obligations by the City while the Developer shall at such time be in default of its obligations hereunder shall not be deemed to be an "event of default" by the City. 12.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of the City or the Developer to promptly or continually insist upon strict performance of any term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other agreement, instrument or document of whatever form or nature contemplated hereby shall not be deemed a waiver of any right or remedy that the City or the Developer may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or provision. 12.05. Termination. 1. The Developer and the City acknowledge and agree that as of the Effective Date certain matters mutually agreed by the parties hereto to be essential to the successful development of the Project have not been satisfied or are subject to certain conditions, legal requirements or approvals beyond the control of any of the parties hereto or which cannot be definitely resolved under this Agreement, First Amended Development Agreement ADOPTED Page 40 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2243 ----~,---------~---- including, but not limited to, failure of a governmental authority to grant an approval required for development of the Project or insurable title to the Project Site has not been obtained. In recognition of these events or conditions, the parties hereto mutually agree that, provided the appropriate or responsible party therefor diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or condition to occur or be satisfied, the failure of the events or conditions listed in subsection (2) below to occur or be satisfied shall not constitute an event of default by any party under this Article 12, but may, upon the election of any party hereto, be the basis for a termination of this Agreement in accordance with this Section. 2. In addition to any other rights of termination provided elsewhere in this Agreement, this Agreement may be terminated as provided in subsection (3) of this section by the City or the Developer after the occurrence of any of the following events or conditions (except for subsection (b), in which event only the Developer may terminate this Agreement pursuant to this subsection (2)): a. The appropriate governmental authority (including the City in exercise of its governmental and regulatory authority and responsibility), upon petition by the Developer denies or fails to: issue the necessary order or other action necessary, vacate right-of-way as described in Section 5.03, issue the Permits, issue the Building Permits, or approve any other land use necessary to commence construction of the Project on the Project Site, provided the Developer has proceeded diligently, expeditiously and in good faith to obtain such approval, permits or other necessary actions; b. A previously unknown site condition is subsequently discovered and that condition prevents successful development of the Project, or part of the Project on the Project Site, or part of the Project Site (in which case only the Developer at his option can terminate the Project as not feasible). 3. Upon the occurrence of an event described in subsection (2) or in the event that the Developer or the City, after diligently and in good faith to the fullest extent its capabilities, is unable to cause a condition precedent to its respective obligations to occur or be satisfied 1 then the Developer or the City may elect to terminate this Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence of such event or the determination of inability to cause a condition precedent to occur or First Amended Development Agreement ADOPTED Page 41 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2244 be satisfied, stating its election to terminate this Agreement as a result thereof, in which case this Agreement shall then terminate. 4. In the event of a termination pursuant to this Section 12.05, neither the Developer nor the City shall be obligated or liable one to the other in any way, financially or otherwise, for any claim or matter arising from or as a result of this Agreement or any actions taken by the Developer and the City, or any of them, hereunder or contemplated hereby, and each party shall be responsible for its own costs, however, the provisions of Sections 9.01 and 10.01 shall apply and shall survive termination of this Agreement, the provisions of this Subsection 12.05(4) to the contrary notwithstand ing. 12.06. Termination Certificate. 1. In the event of a termination of this Agreement for any reason prior to the Expiration Date, each of the parties hereto do covenant and agree with each other to promptly execute a certificate prepared by the party electing to terminate this Agreement, which certificate shall expressly state that this Agreement has been terminated in accordance with its terms, is no longer of any force and effect except for those provisions hereof which expressly survive termination, that the rights, duties and obligations of the parties hereto have been terminated and released (subject to those surviving provisions hereof) and that the Project Site is no longer subject to any restrictions, limitations or encumbrances imposed by this Agreement. 2. The certificate described in Subsection (1) shall be prepared in a form suitable for recording and promptly after execution by all of the parties hereto shall be recorded in the public records of Pine lias County, Florida. ARTICLE 13. RIGHT TO CONTEST. 13.01. Right to Contest. Subject to the conditions set forth in Section 13.02 below, the City or the Developer each may, at its sole discretion and expense, after prior written notice to the other parties hereto, contest by appropriate action or proceeding conducted in good faith and with due diligence, the amount or validity or application, in whole or in part, of any lien, any payment of any taxes, assessments, impact fees or other public charges of a similar nature that may from time to time be levied upon or assessed by any appropriate governmental authority against the Developer, the Project (or any part thereof), the Project Site, furniture, fixtures, equipment or other personal property thereon, and the revenues First Amended Development Agreement ADOPTED Page 42 r-- PINELLRS COUNTY FLR, OFF .REC,8K 12189 PG 2245 generated from the use or operation of any or all of the above, any other payment specifically identified in this Agreement, or compliance with any law, rule, regulation, or other such legal requirement. 13.02. Conditions. The right to contest any charge, payment or requirement pursuant to Section 13.01 is subject to the following: 1. Such proceeding shall suspend the execution or enforcement of such charge, payment or requirement; 2. Such proceeding will not create any risk of impairment of the acquisition or preparation of the Project Site, the construction, completion, operation or use of the Project, the Project Site, or any part thereof, in any material respect, and neither the Project or Project Site, nor any part of the Project or the Project Site, would be subject to any risk of being involuntarily sold, forfeited or lost or the acquisition of the Project Site or the construction, equipping, or completion of the Project or any part thereof be delayed or prohibited; 3. Such proceeding will not subject any other party to criminal liability or risk of material civil liability for failure to comply therewith, or involve risk of any material claim against such party; and 4. The party seeking the benefit of this Article shall have furnished to the other parties such security, if any, as may be required in such proceeding or as may be reasonably requested by the others, to protect the Project and the Project Site, and any part thereof, and any interest of such parties hereunder. ARTICLE 14. ARBITRATION 14.01. Agreement to Arbitrate. Only as specifically provided in this Agreement and only if any judicial or administrative action or proceeding has not been commenced with regard to the same matter and, if so, the party hereto commencing such action has not dismissed it, any disagreement or dispute between the parties may be arbitrated in the manner set forth in this Article 14. All parties hereby agree such arbitration, once commenced, shall be the exclusive procedure for resolving such disagreement or dispute and agree to be bound by the result of any such arbitration proceeding unless all parties mutually agree to terminate such proceeding prior to decision. If any arbitration proceeding under this part adversely affects the performance of any party hereunder, then any time periods provided herein for such performance by that party shall be tolled during the pendency of the arbitration proceeding affecting such performance. First Amended Development Agreement ADOPTED Page 43 PINELLRS COUNTY FLR, OFF ,REC,8K 12189 PG 2246 14.02. Appointment of Arbitrators. 1. a. 2. Unless accelerated arbitration as provided in Section 14.08 hereof is invoked, any party invoking arbitration herewith shall, within five (5) days after giving notice of impasse in the dispute resolution process or upon following the expiration of the time period for such dispute resolution occurrence of the event permitting arbitration to be invoked, give written notice to that effect to the other parties, and shall in such notice appoint a disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association or a disinterested person not on such list to whom an objection is not made by any other party hereto within five (5) days of receipt of the notice of such appointment as the arbitrator or, if more than one (1) arbitrator is to be appointed, as one of the arbitrators. b. Within ten (10) days after receipt of the notice described in paragraph (1), the other parties shall by written notice to the original party acknowledge that arbitration has been invoked as permitted by this Agreement, and shall either accept and approve the appointment of such individual set forth in the original notice as a sole arbitrator or shall appoint one (1) disinterested person per party of recognized competence in such field as an arbitrator. a. If two (2) arbitrators are appointed pursuant to subsection (a) above, the arbitrators thus appointed shall appoint a third disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association, and such three (3) arbitrators shall as promptly as possible determine such matter. b. If the second arbitrator shall not have been appointed as provided in subsection (a), the first arbitrator shall, after ten (10) days notice to the parties, proceed to determine such matter. c. If the two (2) arbitrators appointed by the parties pursuant to subsection (a) shall be unable to agree within fifteen (15) days after the appointment of the second arbitrator upon the appointment of a third arbitrator, they shall give written notice of such failure to agree to the parties, and, if the parties then fail to agree upon the selection of such third arbitrator within fifteen (15) days thereafter, then within ten (10) days thereafter each of the parties upon written notice First Amended Development Agreement ADOPTED Page 44 PINELLRS COUNTY FLR OFF,REC,8K 12189 PG 2247 -----~---~--- to the other parties hereto may request the appointment of a third arbitrator by the office in or for the State of Florida (or if more than one office, the office located closest to the City) of the American Arbitration Association (or any successor organization thereto), or, in its absence, refusal, failure or inability to act, request such appointment of such arbitrator by the United States District Court for the Middle District of Florida (which request shall be filed in the division of that court responsible for the geographic area including the City), or as otherwise provided in Chapter 682, Florida Statutes, known and referred to as the Florida Arbitration Act, as amended. 14.03. General Procedures. In any arbitration proceeding under this part, those parties appointing arbitrators shall each be fully entitled to present evidence and argument to the sole arbitrator or panel of arbitrators. The arbitrator or panel of arbitrators shall only interpret and apply the terms of this Agreement and may not change any such terms, or deprive any party to this Agreement of any right or remedy expressed or implied in this Agreement, or award any damages or other compensation to any party hereto. The arbitration proceedings shall follow the rules and procedures of the American Arbitration Association (or any successor organization thereto) unless specifically modified by this Agreement, or as then agreed to by the parties hereto. 14.04. Majority Rule. In any arbitration proceeding under this part, the determination of the majority of the panel of arbitrators, or of the sole arbitrator if only one (1) arbitrator is used, shall be conclusive upon the parties and judgment upon the same may be entered in any court having jurisdiction thereof. The arbitrator or panel of arbitrators shall give written notice to the parties stating his or their determination within thirty (30) days after the conclusion of the hearing or final submission of all evidence or argument. 14.05. Replacement of Arbitrator. In the event of the failure, refusal or inability of any arbitrator to serve as such, promptly upon such determination being made by the affected arbitrator, the affected arbitrator shall give notice to the other two (2) arbitrators (if applicable) and to the parties hereto, and then a new arbitrator shall be promptly appointed as a replacement, which appointment shall be made by the party or the arbitrators who appointed the affected arbitrator in the same manner as provided for in the original appointment of the affected arbitrator in Section 14.02 hereof. 14.06. Decision of Arbitrators. 1. If any decision reached by arbitration as provided in this part requires performance by the Developer, the Developer covenants and agrees to comply with any decision of the arbitrator(s) promptly First Amended Development Agreement ADOPTED Page 45 PINELLRS COUNTY FLR OFF.REC,8K 12189 PG 2248 after the date of receipt by the Developer of such decision, and to continue such performance to completion with due diligence and in good faith. 2. If any such decision requires performance by the City, the City covenants and agrees to comply promptly with any decision reached by arbitrators) promptly after the date of receipt by the City of such decision, and to continue such performance to completion with due diligence and in good faith. 3. Nothing in this part, nor in any arbitration decision rendered under this part, shall be construed to require any payment by the City to the Developer not otherwise provided for herein. 14.07. Expense of Arbitration. The expenses of any arbitration proceeding pursuant to this part shall be borne equally by the parties to such proceeding, provided, however, for the purpose of this Section 14.07, "expenses" shall include the fees and expenses of the arbitrators and the American Arbitration Association with respect to such proceeding, but shall not include attorneys' fees or expert witness fees, or any costs incurred by attorneys or expert witnesses, unless (and to the extent) agreed to by the parties to such proceeding, which in the absence of such Agreement shall be the responsibility of the party incurring such fees or costs. 14.08. Accelerated Arbitration. 1. a. If any of the parties to any arbitration proceeding under this part determines the matter for arbitration should be decided on an expedited basis, then after an initial election to invoke arbitration pursuant to Section 14.02 hereof has been made, either party to such proceeding may invoke accelerated arbitration by giving notice thereof to the other parties no later than three (3) days after arbitration has been initially invoked and the other parties do not object within three (3) days thereafter. b. Accelerated arbitration, for purposes of this Section 14.08, shall be accomplished by either party notifying the American Arbitration Association (or any successor organization thereto) that the parties have agreed to a single arbitrator, qualified to decide the matter for arbitration, to be appointed by the American Arbitration Association (or any successor organization thereto) with the consent of the parties to such proceeding within three (3) days after receipt of the request and to decide such matter within five (5) days after such appointment. First Amended Development Agreement ADOPTED Page 46 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2249 c. If an arbitrator is not so appointed with consent of the parties to the proceeding within three (3) days after the notice referred to in paragraph (2) is received by the American Arbitration Association, the accelerated proceeding under this Section 14.08 shall terminate and the procedures otherwise set forth in this Article 14 shall apply, unless the parties mutually agree to an extension of such time period. 2. The Developer and the City hereby agree to use such accelerated procedure only when reasonably necessary, to not contest the appointment of the arbitrator or his or her decision except as may be permitted by law, and that all other provisions of this part, except as are in conflict with this Section 14.08, remain in effect and applicable to an accelerated arbitration proceeding. 14.09. Applicable Law. To the extent not inconsistent with this article, any arbitration proceeding under this article shall be governed by the provisions of Chapter 682, Florida Statutes, as amended, known and referred to as the Florida Arbitration Code. 14.10. Arbitration Proceedings and Records. Any arbitration hearing under this article shall be considered a meeting subject to Section 286.011, Florida Statutes, and shall be open to any member of the public. Unless otherwise rendered confidential pursuant to or by the operation of any applicable law or order (other than an order by a sole arbitrator or a panel of arbitrators acting under this part), the record of such proceedings shall be a public record under Chapter 119, Florida Statutes. ARTICLE 15. UNAVOIDABLE DELAY. 15.01. Unavoidable Delay. 1. 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 paragraph (b) as an event of "Unavoidable Delay" shall be excused in the manner provided in this Section 15.01. 2. "Unavoidable Delay" means any of the following events or conditions or any combination thereof: acts of God, litigation which has the effect of precluding reasonable satisfaction of the obligations of this Agreement, acts of the public enemy, riot, insurrection, war, pestilence, archaeological excavations required by lay, unavailability of materials after timely ordering of same, First Amended Development Agreement ADOPTED Page 47 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2250 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). 3. An application by any party hereto (referred to in this paragraph (c) and in paragraph (d) as the "Applicant") for an extension of time pursuant to this subsection 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 seven (7) days following the occurrence of the event or condition causing the Unavoidable Delay or seven (7) days following the Applicant becoming aware (or with the exercise of reasonable diligence should have become aware) of such occurrence. 4. The Applicant 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. ARTICLE 16. RESTRICTIONS ON USE. 16.01. Project. Prior to the earlier of the Termination Date or the Expiration Date, no use of the Project, other than as described in Section 2.03, shall be permitted, other than the operation of improvements existing on the Effective Date until those improvements are demolished, unless and until the Developer or the person, if other than the Developer, intending to so use the Project or Project Site, shall file with the City a request for a release from the restriction imposed by this Section. The Governing Body of the City shall promptly consider such request and either deny the request, approve the request as filed, or approve the request subject to such terms, conditions and limitations as the City may reasonably require. Unless specifically requested and approved, a release of the restriction imposed by this Section shall not release the Developer from any First Amended Development Agreement ADOPTED Page 48 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2251 obligations or restrictions imposed by this Agreement or any agreement, instrument or document contemplated hereby. ARTICLE 17. FIRE OR OTHER CASUALTY; CONDEMNATION. 17.01. Loss or Damage to Project. 1. Until the Project Completion Date, and without regard to the extent or availability of any insurance proceeds, the Developer covenants and agrees to diligently commence and complete the reconstruction or repair of any loss or damage caused by fire or other casualty or by eminent domain (provided the City is not the condemning authority) to each and every part of the Project on a Parcel which it owns to substantially the same size, floor area, cubic content and general appearance as existed prior to the occurrence of such loss or damage, promptly after the City approves the Plans and Specifications for such reconstruction or repairs. 2. The City shall review the Plans and Specifications for such reconstruction or repairs as soon as possible after filing thereof by the Developer. The City agrees to approve the Plans and Specifications for such reconstruction or repairs if the reconstruction or repairs contemplated by such Plans and Specifications will restore the Project, or the damaged portion thereof, to substantially the same condition as existed prior to the occurrence of such loss or damage and if such Plans and Specifications conform to the applicable laws, ordinances, codes, and regulations in effect at the time of filing with the City of the plans and specifications for such reconstruction or repairs. 17.02. Partial Loss or Damage to Project. Until the Project Completion Date, any loss or damage by fire or other casualty or exercise of eminent domain to the Project or Project Site, or any portion thereof, which does not render the Project or Project Site unusable for the use contemplated by Section 2.03 of this Agreement, shall not operate to terminate this Agreement or to relieve or discharge the Developer from the timely performance and fulfillment of the Developer's obligations pursuant to this Agreement, subject to an extension of time for an Unavoidable Delay. 17.03. Project Insurance Proceeds. 1. Whenever the Project, or any part thereof, shall have been damaged or destroyed, the Developer shall promptly make proof of loss and shall proceed promptly to collect, or cause to be collected, all valid claims which may have arisen against insurers or others based upon such damage or destruction. First Amended Development Agreement ADOPTED Page 49 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2252 2. Subject to the rights of a Project Lender, the Developer agrees that all proceeds of property or casualty insurance received by the Developer as a result of such loss or damage shall be available and shall be used for payment of the costs of the reconstruction or repair of the Project to the extent necessary to repair or reconstruct the Project. 17.04. Notice of Loss or Damage to Project. The Developer shall promptly give the City written notice of any significant damage or destruction to the Project stating the date on which such damage or destruction occurred, the expectations of the Developer as to the effect of such damage or destruction on the use of the Project, and the proposed schedule, if any, for repair or reconstruction of the Project. 17.05. Condemnation of Project or Project Site; Application of Proceeds. In the event that part, but not all, of the Project or Project Site, or both, shall be taken by the exercise of the power of eminent domain at any time before the Expiration Date, subject to the rights of a Project Lender, the compensation awarded to and received by the Developer shall be applied first to the restoration of the Project, provided the Project can be restored and be commercially feasible for its intended use as contemplated by Section 2. 03( 1) of this Agreement after the taking, and, if not, can be retained by the Developer. ARTICLE 18. MISCELLANEOUS 18.01. Assignments. 1. By the Developer. a. Prior to the Commencement Date, the Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Project, or any part thereof, only with the prior written consent of the City, which consent is hereby granted for assignment to Bella Vista Seashell Resort, L.L.C., provided that such party (hereinafter referred to as the "assignee"), to the extent of the sale, conveyance, assignment or other disposition by the Developer to the assignee, shall be bound by the terms of this Agreement the same as the Developer for such part of the Project as is subject to such sale, conveyance, assignment or other disposition. b. If the assignee of the Developer's right, title, interest and obligations in and to the Project, or any part thereof assumes all of the Developer's obligations hereunder for the Project, or that part subject to such sale, conveyance, assignment or First Amended Development Agreement ADOPTED Page 50 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2253 other disposition, then the Developer shall be released from all such obligations hereunder which have been so assumed by the assignee, and the City agrees to execute an instrument evidencing such release, which shall be in recordable form. c. An assignment of the Project, or any part thereof, by the Developer to any corporation, limited partnership, general partnership, or joint venture, in which the Developer is the or a general partner or has either the controlling interest or through a joint venture or other arrangement shares equal management rights with a financial institution and maintains such controlling interest or equal management rights shall not be deemed an assignment or transfer subject to any restriction on or approvals of assignments or transfers imposed by this Section 18.01, provided, however, that notice of such assignment shall be given by the Developer to the City not less than thirty (30) days prior to such assignment being effective and the assignee shall be bound by the terms of this Agreement to the same extent as would the Developer in the absence of such assignment. d. No assignee, purchaser, sublessee or acquire of all or any part of the Developer's rights and obligations with respect to anyone Parcel shall in any way be obligated or responsible for any of the Developer's obligations with respect to any other Parcel by virtue of this Agreement unless and until such assignee, purchaser, sublessee or acquire has expressly assumed the Developer's such other obligations. 2. City's RiQht to AssiQn RiQhts. The Developer agrees that the City shall have the unqualified right to assign its rights under Section 5.04 and 6.03 of this Agreement to any person, subject only to applicable laws in regard to the disposition of an interest in real property. 18.02. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the City, and its successors and assigns, and the Developer and its successors and assigns, except as may otherwise be specifically provided herein. 18.03. Notices. 1. All notices, demands, requests for approvals or other communications given by either party to another shall be in writing, and shall be sent by registered or certified mail, postage prepaid, First Amended Development Agreement ADOPTED Page 51 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2254 return receipt requested or by courier service, or by hand delivery to the office for each party indicated below and addressed as follows: To the Developer: To the City: Clearwater Seashell Resort, LC 748 Broadway, Suite 202 Dunedin, FL 34698 Attn: Richard Gehring City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 with copies to: with copies to: William J. Kimpton, Esquire 28059 U.S. Highway 19 North, #100 Clearwater, FL 33761 Pamela K. Akins, Esquire Clearwater City Attorney 112 S. Osceola Avenue Clearwater, FL 33756 2. Notices given by courier service or by hand delivery shall be effective upon delivery and notices given by mail shall be effective on the third (3rd) business day after mailing. Refusal by any person to accept delivery of any notice delivered to the office at the address indicated above (or as it may be changed) shall be deemed to have been an effective delivery as provided in this Section 18.03. The addresses to which notices are to be sent may be changed from time to time by written notice delivered to the other parties and such notices shall be effective upon receipt. Until notice of change of address is received as to any particular party hereto, all other parties may rely upon the last address given. 18.04. 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. 18.05. Venue; Submission to Jurisdiction. 1. 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. 2. 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 First Amended Development Agreement ADOPTED Page 52 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2255 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. 3. 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, City 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, or both, 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 non- resident; 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 18.03. 18.06. Estoppel Certificates. The Developer and the City shall at any time and from time to time, upon not less than ten (10) days prior notice by another party hereto, execute, acknowledge and deliver to the other parties a statement in recordable form certifying that this Agreement has not been modified and is in full force and effect (or if there have been modifications that the said Agreement as modified is in full force and effect and setting forth a notation of such modifications), and that to the knowledge of such party, neither it nor any other party is then in default hereof (or if another party is then in default hereof, stating the nature and details of such default), it being intended that any such statement delivered pursuant to this Section 18.06 may be relied upon by any prospective purchaser, mortgagee, successor, assignee of any mortgage or assignee of the respective interest in the Project, if any, of any party made in accordance with the provisions of this Agreement. 18.07. Complete Agreement; Amendments. 1. This Agreement, and all the terms and provisions contained herein, including without limitation the Exhibits hereto, constitute the full and complete agreement between the parties hereto to the date hereof, and supersedes and controls over any and all prior agreements, understandings, representations, correspondence and statements, whether written or oral. First Amended Development Agreement ADOPTED Page 53 PINELLRS COUNTY FLR, OFF ,REC,8K 12189 PG 2256 2. Any provision of this Agreement shall be read and applied in pari materia with all other provisions hereof. 3. This Agreement cannot be changed or revised except by written amendment signed by all parties hereto. 18.08. Captions. The article and section headings and captions of this Agreement and the table of contents preceding this Agreement are for convenience and reference only and in no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way affect this Agreement or construe any article, section, subsection, paragraph or provision hereof. 18.09. Holidays. It is hereby agreed and declared that whenever a notice or performance under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal holiday observed in the City, it shall be postponed to the next following business day. 18.10. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not physically attached hereto shall be treated as if they are part of this Agreement. 18.11. No Brokers. The City and the Developer hereby represent, agree and acknowledge that no real estate broker or other person is entitled to claim or to be paid a commission as a result of the execution and delivery of this Agreement, including any of the Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any or all of the Project Site. 18.12. Not an Agent of City. During the term of this Agreement, the Developer hereunder shall not be an agent of the City with respect to any and all services to be performed by the Developer (and any of its agents, assigns, or successors) with respect to the Project. 18.13. Memorandum of Development Agreement. The City and the Developer agree to execute, in recordable form, on the Effective date, the short form "Memorandum of Agreement for Development and Disposition of Property" and agree, authorize and hereby direct such Memorandum to be recorded in the public records of Pinellas County, Florida, as soon as possible after execution thereof. The Developer shall pay the cost of such recording. 18.14 Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills and is pursuant to and for a public purpose and municipal First Amended Development Agreement ADOPTED Page 54 PINELLRS COUNTY FLR. OFF ,REC,8K 12189 PG 2257 purpose and is in the public interest, and is a proper exercise of the City's power and authority. 18.15. No General Obligation. I n no event shall any obligation of the City under this Agreement be or constitute a general obligation or indebtedness of the City, or a pledge of the ad valorem taxing power of the City within the meaning of the Constitution of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds. Neither the Developer nor any other party under or beneficiary of this Agreement shall ever have the right to compel the exercise of the ad valorem taxing power of the City or any other governmental entity or taxation in any form on any real or personal property to pay the City's obligations or undertakings hereunder. 18.16. Other Requirements of State Law. Nothing in this Agreement shall be deemed to relieve either party from full compliance with any provision of State law which is applicable to any of the obligations or under takings provided for in this Agreement. In the event that this Agreement omits an obligation to comply with any provision of State law in regard to any of the obligations or undertakings provided for in this Agreement, it is the intention of the parties that such applicable State law shall be deemed incorporated into this Agreement and made a part thereof. In the event that there is any conflict between the provisions of this Agreement and applicable State law, it is the intention of the parties that the Agreement shall be construed to incorporate such provisions of State law and that such provisions shall control. 18.17. Technical Amendments; Survey Corrections. In the event that due to minor inaccuracies contained herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to changes resulting from technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances which do not change the substance of this Agreement may be made and incorporated herein. The City Manager is authorized to approve such technical amendments on behalf of the City, respectively, and is authorized to execute any required instruments, to make and incorporate such amendment to this Agreement or any Exhibit attached hereto or any other agreement contemplated hereby. 18.18. Term; Expiration; Certificate. 1. If not earlier terminated as provided in Section 12.05, this Agreement shall expire and no longer be of any force and effect on March 13, 2011 the tenth anniversary of the Effective Date. First Amended Development Agreement ADOPTED Page 55 -1---- PINELLRS COUNTY FLR, OFF,REC.8K 12189 PG 2258 2. Upon completion of the term of this Agreement, all parties hereto shall execute the Agreement Expiration Certificate. The Agreement Expiration Certificate shall constitute (and it shall be so provided in the certificate) a conclusive determination of satisfactory completion of all obligations hereunder and the expiration of this Agreement. 3. In the event of any dispute as to whether any party is required to execute the Agreement Expiration Certificate, the dispute shall be resolved by arbitration as provided in Article 14. 4. The Agreement Expiration Certificate shall be in such form as will enable it to be recorded in the public records of Pinellas County, Florida. Following execution by all of the parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer in the public records of Pinellas County, Florida and the Developer shall pay the cost of such recording. 18.19. Approvals Not Unreasonably Withheld. The parties hereto represent that it is their respective intent as of the Effective Date and do covenant and agree in the future that all approvals, consents, and reviews will be undertaken and completed as expeditiously as possible, in good faith, and will not be arbitrarily or unreasonably withheld, unless otherwise expressly authorized by the terms of this Agreement. 18.20. Effective Date. The Effective Date shall be the date of the last signature to this Agreement. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of this ~ day of Ciu-,r , 2002. THE CITY OF CLEARWATER, FLORIDA Approved as to form: NK. Akin City Attorney First Amended Development Agreement ADOPTED Page 56 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2259 STATE OF FLORIDA ) ) COUNTY OF PINELLAS ) ~ e foregoing instrument was acknowledged before me this J..1. day of ,2002 by B~n Aungst and Cynthia Goudeau, Mayor and City Clerk, r spectively, for the City \ Clearwater, Florida, on behalf of the City. V'JCeMAYoll. wHt;IJftV G'My By: Signature of Notary Public ~~~l. Printed, typed 0 stamp My Commission Expires: NOTAHV PUBLIC - S'fATE OF FLORIDA l.:AROL YN l BRINK COMMISSION' CC834678 EXPIRES 5I22I2Oll3 eONDED THRU ASA 1-888-NOTARY1 First Amended Development Agreement ADOPTED Page 57 PINELLRS COUNTY FLR, OFF,REC,8K 12189 PG 2260 STATE OF FLORIDA ) ) ) Attest: By : R SEASHELL RESORT, L.C. Attest: By: ,- COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this cx2 g' day of 62-1 ~ , 2002 by ~".,.,.'" 0- ~".." ~ and 'Ie ~ C. G-e r.. as ~ Members of Clearwater Seashell Resort, L.C., a Flonda limited II company, on behalf of Clearwater Seashell Resort, L.C.. Bt1~i~;;;rtuQ ~f ~ry~ L--rLIA /L:::!.-- ~T' I!:(A;2.{;.p \'5" My Commission Expires: Printed, typed or stamp ......~~~:r""'" Laura 1 Burgess f.~'/1;;. ~f: MY COMMISSION # 00133181 EXPIRES ~:.~.;~l October 29, 2006 ~.~;t..... ~., BONDED THRU TROYFAlN INSUl!ANCE. INC ~ "8f..n:" SEE PLANS IN FILE