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RESOLUTION NO. 00-12
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, APPROVING THE ATTACHED DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF CLEARWATER
AND MANDALAY BEACH CLUB, LTD., A FLORIDA
LIMITED PARTNERSHIP; PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the City of Clearwater is desirous of entering into a development
agreement with Mandalay Beach Club, Ltd.; now, therefore,
BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF CLEARWATER, FLORIDA:
Section 1. The Development Agreement between the City of Clearwater and
Mandalay Beach Club, Ltd., a copy of which is attached as Exhibit A, is hereby
approved.
Section 2. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 20th day of January
,2000.
issioner
Approved as to form:
Attest:
~~~Jg
Leslie K. Dougall es
Assistant City Attorney
Resolution No. 00-12
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LAND ASSEMBLY ASSISTANCE
AND REIMBURSEMENT AGREEMENT
CITY OF CLEARWATER
BEACH REVITALIZATIONfREDEVELOPMENT AREA
between
THE CITY OF CLEARWATER, FLORIDA,
and
MANDALA Y BEACH CLUB, LTD.
Dated as of
, 1999
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ARTICLE 1.
TABLE OF CONTENTS
DEFINITIONS ... ........................... ...... .................. ......... ...... ......... .........2
Section 1. 01 Definitions................................................................................................ 2
Section 1. 02 Use ofW ords and Phrases........................................................................ 4
Section 1.03 Florida Statutes ...................................................... ............... ...................4
ARTICLE 2.
PURPOSE AND PROPOSED PROJECT ............................................4
Section 2.01 Purpose of Agreement .............................................................................. 4
Section 2.02 Proposed Project...................................................................................... 4
Section 2.03 Cooperation of the Parties........................................................................ 5
ARTICLE 3.
Section 3.01
Section 3.02
Section 3.03
Section 3.04
ARTICLE 4.
REGULATORY PROCESS.. ............. ........................ ...........................5
Land Development Regulations................................................................ 5
Development Approvals and Permits........................................................ 6
Concurrency............................................................................................. 6
Not a Development Order or Permit .........................................................7
PLANS AND SPECIFICATIONS...... ......................... .............. ............7
Section 4.0 1 Preparatio~ of Plans and Specifications.. ...................................................7
ARTICLE 5.
Section 5.01
Section 5.02
Section 5.03
Section 5.04
ARTICLE 6.
Section 6.01
Section 6.02
Section 6.03
Section 6.04
Section 6.05
Section 6.06
Section 6.07
Section 6.08
Section 6.09
PROJECT DEVELOPMENT ........ ................... ................... ......... ......... 7
Ownership of Project Site......................................................................... 7
Proj ect Site............................................................................................... 7
Land AssemblylRedevelopment Assistance .............................................. 8
City's Obligations................................................................................... 10
PROJECT FIN'ANCING ................... ......... ............. ......... .................... 11
Notice of Project Financing to City........ ...... ........................................... 11
Copy of Default Notice to City............................................................... 11
Assignment of Rights Under Agreement To Project Lender .................... 11
Notice to Project Lender........................................................................ 12
Consent of Project Lender ..................................................................... 12
Estoppel Certificates .............................................................................. 12
Cooperation ........................................................................................... 12
Reinstatement by Project Lender ............................................................ 12
New Agreement ..................................................................................... 13
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Section 6.10 Transfer of New Agreement.................... ..... ................... ............... ........ 13
Section 6. 11 Survival.. .. . .. . .. . .. .. . .. .. .. . .. . .. . . . .. . . .. . . . . . . . .. . . . . .. . . . . . . . .. . . . .. . .. . . . . . .. . .. .. . . . . . . . . . . . . . '" 13
ARTICLE 7.
CONSTRUCTION OF THE PROJECT .............................................14
Section 7.01 Project Site.. ................ ........ .... ........ .... ..... .......... ..... ....... ....... ..... ............ 14
Section 7.02 Construction of First Phase of the Project............................................... 14
ARTICLE 8. INDEMNIFICATION........................... .......... .......... ....................................... 16
Section 8.01 Indemnification by the Developer............................................................ 16
Section 8.02 Indemnification by the City .....................................................................17
Section 8.03 Limitation of Indemnification... .... ..... ....... .............. ..... ............... ............. 18
ARTICLE 9.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
DEVELOPER....................................................................................... 18
Section 9.01
Section 9.02
Representations and Warranties.............................................................. 18
Covenants............................................................................................... 20
ARTICLE 10.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
CfI'Y ..................................................................................................... 20
Section 10.01 Representations and Warranties.............................................................. 20
Section 10.02 Covenants...... .......... ......... ..... ...... ............ ..... ........... ........ ....................... 21
ARTICLE 11.
CONDITIONS PRECEDENT... ........ ...... ........... ............ .............. .......22
Section 11.01 Developer Acquiring Project Site........... ..... .................. .......................... 22
Section 11.02 Responsibilities of the Parties for Conditions Precedent.......................... 23
ARTICLE 12.
DEFAULT; TERMINATION.......... ............................... ................ .....23
Section 12.01 Project Default by Developer........................................... ....................... 23
Section 12.02 Default by the City. ................ ................... ........ ........................ .... ..........25
Section 12.03 Obligations, Rights and Remedies Cumulative......................................... 26
Section 12.04 Non-Action on Failure to Observe Provisions of this Agreement............. 26
Section 12.05 Termination..... .... ................. ............. ..... ............ ............. ............... ........ 26
Section 12.06 Termination Certificate........................................................................... 28
ARTICLE 13.
R1Gfff TO CONTEST .............. ........................... ............ ... ........... ..... 28
Section 13.01 Right to Contest ..................................................................................... 28
Section 13.02 Conditions.............................................................................................. 28
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ARTICLE 14.
ARBITRATION ........ ........................ ......... ................. .........................29
Section 14.01 Agreement to Arbitrate................... ........ ..................................... ........... 29
Section 14.02 Appointment Arbitrators........... ................. ........... ....... ......... ............ ...... 29
Section 14.03 General Procedures................................................................................. 30
Section 14.04 Majority Rille .., ....... ......... ........................... ........ ............. ..... ....... .... ......31
Section 14.05 Replacement of Arbitrator ...................................................................... 31
Section 14.06 Decision of Arbitrators........................................................................... 31
Section 14.07 Expense of Arbitration............................ .......... ...... ...... .......... ................ 32
Section 14.08 Accelerated Arbitration........................................................................... 32
Section 14.09 Applicable Law........ .... .................. .... ......................... ......... .... ............... 32
Section 14. 10 Arbitration Proceedings and Records...................................................... 33
ARTICLE 15.
UNAVOIDABLE DEJA Y ................................... .......... .......... ............33
Section 15.01 Unavoidable Delay...... .............................. ................................... ...........33
ARTICLE 16.
FIRE OR OTHER CASUALTY; CONDEMNATION....................... 34
Section 16.01 Loss or Damage to Project .....................................................................34
Section 16.02 Partial Loss or Damage to Project........................................................... 34
Section 16.03 Project Insurance Proceeds..................................................................... 34
Section 16.04 Notice of Loss or Damage to Project ...................................................... 35
Section 16.05 Condemnation of Project or Project Site; Application of Proceeds .......... 35
ARTICLE 17.
MISCELLANEOUS .............................................................................35
Section 17.01 Assignments...u...................................................................................... 35
Section 17.02 Successors and Assigns........................................ ................................... 36
Section 17.03 Notices................................................................................................... 36
Section 17.04 Applicable Law and Construction........................................................... 37
Section 17.05 Venue; Submission to Jurisdiction........................................................... 37
Section 17.06 Estoppel Certificates............................................................................... 37
Section 17.07 Complete Agreement; Amendments ........................ ........... ......... ............38
Section 17.08 Captions.....;. ................ ............. .... ...... .... ........... ......... ......... ..................38
Section 17.09 Holidays................................................................................................. 38
Section 17.10 Exhibits.................................................................................................. 38
Section 17 .11 No Brokers............................................................................................. 38
Section 17.12 Not an Agent of City ........................ ............................................. ......... 39
Section 17.13 Public Purpose........................................................................................ 39
Section 17.14 No General Obligation............................................................................ 39
Section 17.15 Technical Amendments; SUlVey Corrections ................................ ...........39
Section 17.16 Term; Expiration; Certificate ......................................... ......................... 39
Section 17.17 Effective Date... .................................... ..................................................40
Section 17.18 Approvals Not Unreasonably Withheld .......................................................
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This Land Assembly Assistance and Reimbursement Agreement (the "Agreement") is made as
of this _ day of , 1999, by and between THE CITY OF CLEARWATER, FLORIDA, a
public body corporate and political subdivision of the State of Florida (the ''City'') , and Mandalay
Beach Club, Ud., a Florida limited partnership (''Developer'').
WITNESSETH:
WHEREAS, the City of Clearwater has embarked on a community revitalization effort known
as One City, One Future;
WHEREAS, one of the major elements of One City, One Future is implementation of the
Strategic Redevelopment Plan for Clearwater Beach;
WHEREAS, the Strategic Redevelopment Plan for Clearwater Beach identifies certain lands
for assembly and priority redevelopment;
WHEREAS, the City has enacted a Land Assembly Assistance Ordinance, Ordinance
No. 641 0-99 which provides for the use of the City's power of eminent domain to complete assembly
ofland 'when necessary to carry out community redevelopment;
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WHEREAS, one of the areas identified for assembly and priority redevelopment as a unit in
the Strategic Redevelopment Plan for Clearwater Beach is the area bounded by North Mandalay on
the East, Papaya on the South, San Marco on the North and the Gulf of Mexico on the West
(''Candidate Revitalization/Redevelopment Area");
WHEREAS, Developer has entered into contracts to acquire a significant portion of the land
located within the Candidate Revitalization/Redevelopment Area);
WHEREAS, Developer proposes to develop the land located within the Candidate
Revitalization/Redevelopment Area in accordance with the goals and objectives of the Strategic
Redevelopment Plan for Clearwater Beach;
WHEREAS, it is necessary that the City take certain actions in order to make it possible for
Developer to develop the land located 'within the Candidate Revitalization/Redevelopment Area in
accordance with the goals and objectives of the Strategic Redevelopment Plan for Clearwater Beach.
wIDch actions include the construction of certain public improvements including street and sidewalk
improvements and beautification;
WHEREAS, at a duly called public meeting on , the City Commission
approved this Agreement, and authorized and directed its execution by the appropriate officials of the
CitY" and
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WHEREAS, the Board of Directors of Developer has approved this Agreement and has
authorized certain individuals to execute this Agreement on its behalf
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 Agreement for Development and Acquisition of Property including any
Exhibits and any amendments thereto.
2. ''Candidate Revitalization/Redevelopment Area" means the area bounded by North Mandalay on
the East, Papaya on the South, San Marco on the North and the Gulf of Mexico on the West.
3. "City of Cleanvater RevitalizationJRedevelopment Area" means the land located within the
corporate limits of the City having buildings which are dilapidated, obsolete and blighted as
defined in Part III of Chapter 163 of the Florida Statutes and which was designated as a
Candidate RevitalizationJRedevelopment Area by the City Commi<;.sion plmUaIlt to Ordinance
No. 6410-99 by Resolution Number 99-38 approved on August 19, 1999.
"City" means the City of Clearwater, Florida, a Florida municipal corporation.
''City Commission" means the governing body of the City.
"Commencement Date" means the date on which Developer commences or causes a Contractor
to commence construction of the First Phase of the Project (see Section 7.02(a)).
''Commercial Parcels" means those parcels for which Developer requests land assembly/
redevelopment assistance (see Section 5.03), which are more particularly descnbed in the
legal description set out in ExhIbit ''A'' to this Agreement.
''Construction Completion" means the date a Construction Completion Certificate is issued (see
Section 7. 02( f)).
''Controlled Property" means those properties within the Project Site which are subject to a
purchase contract in favor of Developer or an affiliate or nominee on the effective date of this
Agreement (see Section 5.01) which are more particularly descnbed in the legal description
set out in Exlnbit ''B'' to this Agreement.
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10. "Developer" means, for the pwpose of this Agreement, Mandalay Beach Club, Ud., a Florida
limited partnership.
11. ''Effective Date" means the date of approval and execution of this Agreement as provided in
Section 17.17.
12. "Exlubits" means those agreements, diagrams, drawings, specifications, instruments, forms of
instruments, and other documents attached hereto and designated as exlubits to, and
incorporated in and made a part of: this Agreement.
13. ''First Phase" of development means a portion of the Project including not less than sixty-five (65)
residential dwelling units which may be undertaken, but shall not be required to be completed
before other portions of the Project are commenced.
14. "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.
15. "Plan" means, the Clearwater Beach Strategies for Revitalization.
16. "Plans and Specifications" means, as to each part of the Project to be developed and 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
17. "Project" means, collectively, the concept of development proposed by Developer as descnbed in
a Petition for Land Assemb~/Redevelopment Assistance dated September _, 1999.
18. "Project Financing" means collectively the financing to be obtained by Developer for acquisition,
development and construction of the Project.
19. "Project Lender" means any lender providing all or part of the Project Financing.
20. "Project Site" means the land area generally bounded by North Mandalay, Papaya, San Marcos
and the Gulf of Mexico which is more particularly descnbed and depicted on Exlubit "D" (see
Section 5.02).
21. "Termination Date" means the date a termination certificate is issued pursuant to Section 12.06.
22. "Unavoidable Delay" means a delay as descnbed in Article 15 hereof
23. "Vacation of Rights of Way" means the abandonment of City owned streets within the Project
Site by the City in favor of the Developer, in order that the goals and objectives of the Plan
may be better accomplished.
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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, including public bodies, as
well as natural persons. "Herein," "hereby," "hereunder," "hereof:" "hereinbefore," "herein-
after" 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 (1999), as
amended from time to time.
ARTICLE 2. PURPOSE AND PROPOSED PROJECT.
a. Project Description. Developer proposes to redevelop the Project Site with
residential development which may also include retail and restaurant uses with related
pedestrian walkways, stre~ts, parking and infrastructure improvements. The Project
shall be comprised of not more than two hundred (200) residential dwelling units and
not less than one himdred and forty (140) residential dwelling units in two (2)
residential buildings with a height not to exceed one hundred and fifty (150) feet. The
Project may also include redevelopment of commercial uses on the Commercial
Parcels as hereafter provided. As provided for in this Agreement, Developer agrees
to carry out the redevelopment of the Project Site by purchasing all of the parcels
within the Project Site, which are to be developed by Developer, entering into
agreements with adjoining owners where advisable, 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.
Project Benefits and Public Interest. The proposed Project for the Project Site,
specifically including the acquisition of the Project Site 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
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the objectives of the Plan, (2) to conform to the provisions of Florida law, (3) to be in
the best interests of the citizens of the City, (4) to further the purposes and objectives
of the City, and (5) to further the public interest and purpose of eradicating conditions
of deterioration, dilapidation, obsolescence and blight on CleaIWater Beach.
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2.03. Cooperation of the Parties. The City and Developer recognize that the successful
development of the Project and each component thereof is dependent upon continued coopera-
tion of the City and 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 pmposes of this
Agreement are carned out to the full extent contemplated hereby and the Project is designed,
constructed, completed and operated as provided herein.
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ARTICLE 3. REGULATORY PROCESS.
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3.01. Land Development Regulations.
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a. Land Use Designation. The Project Site is designated Tourist District in the City's Land
Development Regulations.
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b. Amendments to Land Development Regulations. The City covenants and agrees to
cooperate with Developer to the extent permitted by law in regard to any text or map
amendment to the City's Land Development Regulations which may be necessary in
order for Developer to carry out the Project as described in Section 2.02(a).
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c. Special Settlement Stipulation Rights. The City recognizes that portions of the Project
Site are subject to a Final Judgment By Consent entered by the Circuit Court of
Pinellas County in CifyofClemwaterv. Gray, Case No. 85-4145-15 and Thackeret
aI. v. City ofClemwater, Case No. 86-17457-16. The City agrees to honor the rights
and interests created by the Consent Decree without prejudice to Developer's right to
take advantage of the less restrictive provisions which are contained in the City's
Land Development Regulations.
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Zoning Letter. The zoning letter which is attached to this Agreement as Exhibit "C"
represents the City's official interpretation of the City's Land Development
Regulations as they apply to the Project Site as of the effective date of this
Agreement.
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3.02 De\'elopment Approvals and Permits.
a. Applications for Development Approval Developer shall prepare and submit to the
appropriate governmental authorities, including the City~ applications for all n~
Permits for the Project, and shall bear all costs of preparing such applications,
applying for and obtaining such permits and shall pay applicable impact fees.
b. City Cooperation and Assistance. The City shall cooperate \\ ith Developer in obtaining all
necessary Permits required for the construction, completion and sale of the
residential dwelling units comprising the Project. If requested by Developer and
authorized by law, the City will join in any application for any Permit, or,
ahematively, recommend to and urge any governmental authority to which application
for any Permits has been made that such Building Permit or Permits be issued or
approved
c. City Authority Preserved The Cit)..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 Cit),1s 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. Notwithd-anding any other provision of this
Agreement, any required PCllwttiug, licensing or other regulatory approvals by the
City shall be subject to the established procedures and requirements of the City with
respect to review and peullittiug of a project of a similar or comparable nature, size
and scope. In no event shall the Cit)" due to any pro,ision of this Agreement, be
obligated to take any action concerning regulatory approvals except through its es-
tablished processes ~d in accordance with applicable provisions of law.
d. Tnwact Fees. The City shall. colnpute the water and sewer impact fees using the same
methodology as used at the Sunshine Mall redevelopment.
3.03. Concurrency.
a. Concurrency Required The parties hereto recognize and acknowledge that Florida law
(specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida
Adminic;ITative Code, .conectively the "GrO\\th Management Act") imposes restriv
tions 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 Cit). has created and implemented a system for monitoring the
effects of development on public services \\ithin the City. Developer recognizes and
acknowledges it must satisfy the concurrency requirements of Florida law as applied
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to this Project. Developer covenants and agrees to comply with the concurrency
requirements of the City's regulations.
b. 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
Developer and to maintain such capacity for a period of three (3) years from the
effective date of this Agreement and that such period shall be automatically extended
for an additional three (3) years if Developer commences construction of the First
Phase of the Project within the initial three (3) year period. The City recognizes and
acknowledges that Developer will rely upon such reservation in proceeding with the
Project.
3.04. Not a Development Order or Permit. The City and Developer hereby acknowledge, agree
and represent that this Agreement is not intended to be and should not be construed or deemed
to be a "development order" or "development permit" within the meaning of those terms in
Section 163.3164, Florida Statutes.
ARTICLE 4. PLANS AND SPECIFICATIONS.
4.01. Preparation of Plans and Specifications.
a. Responsibility for Preparation of Plans and Specifications. Developer shall be solely
responsible for and shall pay the cost ofpreparing, submitting and obtaining approval
of the Plans and Specifications.
b. Use of Oualified Professionals. . Developer shall retain qualified professionals to prepare
the Plans and Specifications and shall cause such professionals to prepare the Plans
and Specifications.
ARTICLE 5. PROJECT DEVELOPMENT.
5.01. Ownership of Project Site. Developer is or will be the contract purchaser of the Controlled
Property within the Project Site which is more particularly described in Exhibit "D" to this
Agreement.
5.02. Project Site. The Project Site consists of those properties located in an area which is bounded
on the East of North Mandalay, on the North by San Marco, on the South by Papaya and on
the West by the Gulf of Mexico as more particularly depicted on Exhibit ''D.''
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5.03. Land AssemblylRedevelopment Assistance.
a. Commercial Parcels. The City has granted Developer's petition for land assembly
assistance for three (3) parcels of land which are more particularly described in
Exhibit "A" to this Agreement. The City's assistance is provided for in two (2)
stages: 1) an initial effort involving Developer and City participation in public/private
redevelopment agreements with the owners ofthe Commercial Parcels providing for
the redevelopment/revitalization of the Commercial Parcels in a manner and form
which is consistent with the City's redevelopment/revitalization objectives; and 2) in
the event that voluntary agreements with the owners of the Commercial Parcels are
not possible and the existing improvements and uses continue to have a negative,
blighting effect on the planned and redevelopment/revitalization of the Candidate
RedevelopmentlRevitalization Area, the City may be requested to assemble such
parcels using eminent domain powers and convey such parcels to Developer.
b. Reimbursement Terms and Conditions.
1. Stage 1 Assistance. Subject to the provisions ofthis Section,
Developer agrees that in the event that the City participates in land
assembly assistance in regard to the Commercial Parcels which does not
involve the acquisition of title to the Commercial Parcels , Developer
and/or respective property owners shall participate in any such City land
assembly assistance action by contributing an amount to be hereafter
agreed to by Developer and City. In addition, Developer, as additional
consideration, shall execute a recapture agreement for the amount
expended by City which provides for twelve (12) annual payments of
additional consideration, the first and second payments to be made on the
first and second anniversary ofthis Agreement which occur after January
1, 2003, and the third through twelfth payment on each anniversary
thereafter. The first and second payment, shall be in an amount equal to
five percent (5%) and the third through twelfth in an amount equal to nine
percent (9"-10) of the amount expended by the City of Clearwater, including
attorneys' fees and costs, less the amount of real estate taxes paid in each
year by the Project to the City of Clearwater in excess of the ad valorem
taxes paid by the owners of the Project Site in the last year immediately
preceding the Effective Date of this Agreement, including real estate taxes
paid to the City of Clearwater by purchasers of real estate products
developed on the Project Site. (Annual Additional Consideration Payment
= 5% (9"-10) of Excess Land Acquisition Costs less Annual Ad Valorem
Taxes paid to City by Project in excess of ad valorem taxes paid to City in
year before the Effective Date of this Agreement).
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2. Stage 2 Assistance. Subject to the provisions of this Section,
Developer agrees that in the event that the City participates in land
assembly assistance in regard to the Commercial Parcels which involves
the acquisition of title to the Commercial Parcels, Developer agrees to
pay the City, in consideration for the conveyance of the Commercial
Parcels and upon presentment of good and marketable title, an amount to
be hereafter agreed to by Developer and City. In the event that the actual
cost of acquisition incurred by the City of Clearwater, including attorneys'
fees and costs exceeds the upset amount agreed to as Developer's
contribution, Developer, as additional consideration, shall execute the
recapture agreement which provides for twelve (12) annual payments of
additional consideration, the first and second payments to be made on the
first and second anniversary of this Agreement which occur after January
1, 2003, and the third through twelfth payment on each anniversary
thereafter. The first and second payments shall be in an amount equal to
five percent (5%) and the third through twelfth payments on each
anniversary thereafter. The first and second payments and the third
through twelfth payments in an amount equal to nine percent (9%) of the
difference between the cash consideration paid by Developer pursuant to
this paragraph and the actual cost of acquisition incurred by the City of
Clearwater, including attorneys' fees and costs, less the amount of real
estate taxes paid in each year by the Project to the City of Clearwater in
excess of the ad valorem taxes paid by the owners of the Project Site in
the last year immediately preceding the Effective Date of this Agreement,
including real estate taxes paid to the City of Clearwater by purchasers of
real estat.e products developed on the Project Site. (Annual Additional
Consideration Payment = 5 % (9%) of Excess Land Acquisition Costs less
Annual Ad Valorem Taxes paid to City by Project in excess of ad valorem
taxes paid to City in year before the Effective Date of this Agreement).
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3. Condition Precedent. The City and Developer agree that the
Developer's reimbursement obligation pursuant to this section is subject
to prior written approval of the Developer to any agreement by which the
City participates in land assembly assistance in regard to the Commercial
Parcels which does not involve the acquisition of title to the Commercial
Parcels. The City and Developer agree that the Developer's obligation
pursuant to this section in regard to the acquisition of title to the
Commercial Parcels, shall be subject to the Developer having submitted a
written request to the City that the City undertake to provide land
assembly assistance through the acquisition of title to a specific
Commercial Parcel and the approval of such request by resolution of the
City Commission.
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5.04. City's Obligations. To induce Developer to acquire the Controlled Property and to undertake
the Project and in recognition of the economic and other benefits to the City which will result
there from, the City agrees as follows:
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a. Vacation of Right of Way. Within sixty (60) days of the Effective Date of this
Agreement, the City Commission shall consider a resolution vacating the right of way
of North Gulfview between Papaya and San Marco which vacation shall become
effective immediately upon Developer taking title to the Project Site.
b. Vacation of Plat. The City shall vacate that part of the plat ofCleaIWater Beach Park
as recorded in Plat Book 10, Page 42 of the Public Records of Pinellas County,
Florida (the "Existing Plat") which includes the Project Site and replat said property
as required for the development of the Project.
c. Road and Sidewalk Improvements. The City shall construct road and sidewalk
improvements (the "Road and Sidewalk Improvements") within the public rights-of-
way existing along North Mandalay, Papaya and San Marco with the following
minimum characteristics:
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Sidewalks on the west side of North Mandalay shall be at least ten (10) feet
wide, measured from the western edge of the sidewalk to the eastern face of
the curb. Sidewalks on North Mandalay, Papaya and San Marco shall be
constructed substantially in accordance with the description attached as
Exhibit ''E.''
2. Street landscaping shall be installed along North Mandalay that is consistent
with the landscaping at the roundabout located at the western terminus of
Memorial Causeway on CleaIWater Beach.
The construction of a landscaped median in North Mandalay.
The relocation of overhead utilities underground along North Mandalay,
Papaya and San Marco.
5.
The repaving of Papaya and San Marco and the construction of cul-de-sacs at
the western terminus of Papaya and San Marco as described in Exhibit ''E.''
6.
The City shall complete construction of the road and sidewalk improvements
within the public rights-of-way as provided for in this paragraph by the
following dates:
Papaya and San Marco on or before January 1, 2002.
North Mandalay on or before January 1, 2004.
Page 10
JMaCity of Clearwater Agreement
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d.
Modification of Settlement Agreement. The City agrees to join with Developer in any
modification of that certain Final Judgment By Consent entered by the Circuit Court
ofPinellas County in City ofClearwaterv. Gray, Case No. 85-4145-15 and Thacker
et a1. v. City of Clearwater, Case No. 86-17457-16 as is necessary to cany out the
development of the Project.
e. Transfer of Development Rights. The City shall transfer to Developer transferable
development rights sufficient to permit the Developer to construct a total of 157
residential dwelling units on the Controlled Property of the Project Site. In exchange
for such rights, Developer agrees to cause to be transferred to City development
rights for an equivalent number of residential dwelling units from unused development
rights held by Developer's affiliate, Meridian on Sand Key, Ltd.
f Sales Office. The City acknowledges Developer's plan to construct a sales office on a
portion of the Project Site prior to closing on the purchase of the Controlled
Properties. City agrees to expedite the review of any permit application submitted by
Developer as to the sales office and to take such actions as may be reasonably
required to permit Developer to install and operate such sales office.
ARTICLE 6. PROJECT FINANCING.
,.
6.01. Notice of Project Financing to City. As soon as Developer shall have obtained the Project
Financing, Developer shall provide the City with a sworn statement identifYing the Project
Lender(s) and documenting the type offinancing that the Project Lender(s) has issued for the
Project.
6.02. Copy of Default Notice to City.. Developer covenants and agrees that any Project 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 basis of the default by Developer and shall include
copies of any pleadings in any proceeding instituted by the Project Lender( s) incident thereto.
6.03. Assignment of Rights Under Agreement To Project Lender. Developer may assign to the
Project Lender all its right, title and interest under this Agreement as security for any
indebtedness of Developer. The execution of any assignment, security agreement, or other
,. , instrument, or the foreclosure of the instruction or any sale under the instrument, either by
judicial proceedings or by virtue of any power reselVed in the mortgage or deed of trust, or
conveyance in lieu of foreclosure by Developer to the holder of such indebtedness, or the
existence of any right, power, or privilege reselVed in any instrument, shall not be held as a
violation of any of the terms or conditions of this Agreement, or as an assumption by the holder
of such indebtedness personally of the obligations of this Agreement. No such assignment,
. Page 11
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foreclosure, conveyance or exercise of right shall relieve Developer from its liability under this
Agreement.
6.04. Notice to Project Lender. If Developer shall encumber its interests under this Agreement, and
if Developer or the holder of the indebtedness secured by the assignment shall give notice to
City of the existence of the assignment and the address of the holder, then City will mail or
deliver to the Project Lender, a duplicate copy of all notices in writing which City may, from
time to time, give to or serve on Developer under and pursuant to the terms and provisions of
this Agreement. Copies shall be mailed or delivered to the holder at, or as near as possible to,
the same time the notices are given to or served on Developer. The Project Lender may, at its
option, at any time before the rights of Developer shall be terminated as provided in this
Agreement, do any act or thing that may be necessary and proper to be done in the observance
of the covenants and conditions of this Agreement or to prevent the termination of this
Agreement. All payments so made and all things so done and performed by the Project Lender
shall be as effective to prevent a forfeiture of the rights of Developer under this Agreement as
they would have been if done and performed by Developer.
6.05. Consent of Proj ect Lender. 1bis Agreement cannot be amended, canceled, or surrendered by
the Developer without the consent of the Project Lender.
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6.06. Estoppel Certificates. The City agrees at any time and from time to time upon not less than
ten (10) days prior written request by the Developer to execute, acknowledge, and deliver to
any Project Lender a statement in writing certifYing that this Agreement is unmodified and in
full force and effect (or if there have been modifications), being intended that any such
statement delivered pursuant to this Article 6 may be relied upon by the Project Lender.
6.07. Cooperation. The City and the Developer shall cooperate by incorporating into this
Agreement, by suitable amendment, from time to time, any provision which may reasonably be
requested by any proposed Project Lender for the purpose of implementing the mortgagee
protection provisions contained in this Agreement and allowing the Project Lender reasonable
means to protect or preserve the liens of such Project Lender upon the occurrence of a default
under the terms of this Agreement. The City and the Developer each agree to execute and
deliver any agreement reasonably necessary to effect any such amendment; provided, however,
that any such amendment shall not in any material respect, adversely affect any rights of the
City under this Agreement. '
6.08. Reinstatement by Project Lender. If this Agreement is t<?rminated by reason of the
happening of any event of default, and after any notice and cure period provided, City shall give
prompt notice of this right to reinstate to the Project Lender, which right to reinstate shall be
for a period of ninety (90) days. However, the Project Lender shall not have any personal
liability for performance of the Developer's obligations under this Agreement unless and until
the Project Lender acquires title to the Project Site and expressly assumes such liability.
.
Page 12
JMaCity of Clearwater Agreement
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6.09. New Agreement. City shaJL on written request of a Project Lender which has acquired title to
the Project Site by foreclosure or deed in lieu offoreclosure, enter into a new Agreement with
such Project Lender, or its designee, within twenty (20) days after receipt of such request,
which new agreement shall be effective as of the date of such termination of this Agreement for
the remainder of the term of this Agreement and upon the same terms, covenants, conditions
and agreements as are contained in this Agreement, provided that the Project Lender or its
designee shall:
a.
pay to City at the time of the execution and delivery of said new agreement any and all
sums which would have been due under this Agreement from the date of termination
of this Agreement (had this Agreement not been terminated) to and including the date
of the execution and delivery of said new agreement, together with all expenses,
including but not limited to, attorneys' fees (for trials and appeals) in a reasonable
amount incurred by City in connection with the termination of this Agreement and
with the execution and delivery of the new agreement, and
b.
on or prior to the execution and delivery of said new agreement agree in writing that
promptly following the delivery of such new agreement, such Project Lender or its
designee will perform or cause to be performed all of the other covenants and
agreements in this Agreement on Developer's part to be performed to the extent that
Developer shall have failed to perform the same to the date of delivery of such new
agreement.
6.10. Transfer of New Agreement. The Project Lender shall have the right to
assign or transfer the new agreement to any person or entity without the
City's cons~t so long as the new agreement is in good standing and Project
Lender is current in obligations owed to the City. Notwithstanding the
foregoing, any ~oject Lender that is assigning the new agreement and the
estate created thereby shall provide to the City notice of assignment and shall
cause to be executed and delivered in a form reasonably acceptable to the City
an assumption agreement from the assignee pursuant to which said assignee
assumes the duties, obligations, covenants, conditions and restrictions of the
new agreement. Upon such assignment and assumption by the assignee, the
assignor shall be released of all liability under the new agreement and, upon
request of the assignor, the City shall execute and deliver to the assignor a
release agreement in a form reasonably acceptable to the assignor evidencing
such release of the assignor from any liability under the new agreement.
6.11. SurvivaL The provisions of this Article 6 shall swvive the termination of this Agreement and
shall continue in full force and effect thereafter to the same extent as if Article 6 were a
separate and independent contract made by the City, the Developer and the Project Lender.
Page 13
JMC\City or Clearwater Agreement
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ARTICLE 7. CONSTRUCTION OF THE PROJECT.
7.01. Project Site.
a.
Site Work. The Developer shall be responsible for all site investigation,
environmental testing, demolition and site clearing.
7.02. Construction of First Phase of the Project.
a.
Commencement. Developer shall construct the First Phase of the Project substantially
in accordance with the Plans and Specifications therefore. Developer shall commence
construction of the First Phase of the Project ("Commencement Date") within three
(3) years after the Effective Date of this Agreement and shall thereafter diligently
pursue completion of the First Phase of the Project.
1.
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 and with the active of completion of that part of the
Project.
2.
All obligations of Developer (including deadlines in the Commencement Date)
with respect to commencement and continuation of construction shall be
subject to delays and extensions from time to time for Unavoidable Delay (see
Article 15). 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 Onavoidable Delay.
b.
Pursuit of Construction. After the Commencement Date, Developer shall continue,
pursue and prosecute the construction of the First Phase of the Project 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 Project
Site. For purposes of this subsection (b), "abandoned" means to have ceased any
construction work which effectively advances the construction of the Project toward
completion, including removing all or substantially all of the construction work force
from the Project site for a period of not less than sixty (60) days.
c.
Maintenance of Construction Site. During the construction of the Project, Developer
shall, at its own expense, keep the Project and all lands owned by Developer within
the Project Site in reasonably good order and condition.
d. Construction Completion Certificate.
Page 14
JMC\City of Clearwater Agreement
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For purposes of this Section 7.02, "completion, "complete," "substantially
complete" or "substantial completion" means, with respect to construction of
the First Phase of the Project, the later of a certificate of occupancy for the
shell of any structures) (not including any tenant improvements) for that part
of the Project issued by the City or other appropriate governmental authority
having jurisdiction over the Project Site or that portion of the Project has been
deemed completed by the Project Lender under the Construction Financing
therefor.
2.
Upon the substantial completion of the construction of the First Phase of the
Project in accordance with the provisions of the Plans and Specifications,
Developer shall prepare and execute the Construction Completion Certificate,
which shall then be delivered to the City. Upon receipt 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 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 Developer hereunder to construct the First Phase of the Project
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 othe~ governmental entity acting in its regulatory or governmental
capacity or an approval of said construction for purposes of the issuance ofa
certificate of occupancy for that part of the Project.
4.
If the City shall refuse or fail to execute the Construction Completion
Certificate after receipt of a request by Developer to do so, then the City shall,
within ten (10) days after its receipt of such request, provide 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 Developer to satisfy such objections so that the City would sign the
certificate. Upon Developer satisfying the City's objections, then 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 Developer does not agree
with the objections set forth in the City's statement, then Developer may
invoke the arbitration procedures set forth in Article 14 hereofforthe purpose
Page 15
JMC\aty of Clearwater Agreement
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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 ofPinellas County, Florida. After execution by
the City, it shall be promptly returned to Developer who shall record the
certificate in the public records ofPinellas County, Florida, and pay the cost
of such recording.
e. 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.
ARTICLE 8. INDEMNIFICATION.
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8.01. Indemnification by the Developer.
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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 work or 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 work or 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 work or
servIces.
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.
The Developer's indemnity obligations under subsections (a) and (b) 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.
Page 16
JMC\aty of Clearwater Agreement
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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.
a.
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 work or 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 work or 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 work or
servIces.
b.
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.
c.
The City's indemnitY obligations under this Section 10.02 shall survive the earlier of
the Termination Date or ,the Expiration Date, 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.
Page 17
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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:
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the indemnifying party shall not be responsible for damages that could have been, but
were not, mitigated by the indemnified party;
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
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.
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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:
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a. The Developer is a Florida limited partnership 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.
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 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, (ill) 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
Page 18
JMC\aty of Clearwater Agreement
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any indenture, mortgage, deed oftrust, bank loan or credit agreement, the Developer's
Partnership Agreement or, any other agreement or instrument to which the Developer
is a party or by which the Developer may be bound.
c.
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.
d.
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.
e.
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.
f
All financial inforniation and other documentation, including that pertaining to the
Project or the Developer, delivered by the Developer to the City was, to the best of
Developer's knowledge and belief: on the date of delivery thereof: true and correct.
g.
The principal place of business and principal executive offices of the Developer is in
St. Petersburg, 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 County,
h,
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.
1.
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, and to acquire the
Project Site.
Page 19
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9.02. Covenants. The Developer covenants with the City that until the earlier of the Termination
Date or the Expiration Date:
a. 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.
b.
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.
c.
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.
d.
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.
e.
Subject to Section 17.01, the Developer shall maintain its existence 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 surviving entity from
such consolidation or merger remains controlled directly or indirectly by JMC
Development, Inc" or its shareholders.
f.
The Developer shalltake no action which shall have the effect, singularly or in the
aggregate, of rendering 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.
g,
Provided all conditions precedent thereto have been satisfied or waived as provided
herein, the Develop,er shall design, construct and complete the First Phase of the
Project such that it is substantially complete as 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 of the following statements is currently true and accurate and agrees that the Developer
may rely on each of the following statements:
Page 20
JMC\aty of Clearwater Agreement
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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.
b.
This Agreement and, to the extent such documents presently exist in 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, (ill) 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.
c.
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 equitable principles
in the event that equitable remedies are involved.
d.
There are no pending or threatened actions or proceedings before any court or
administrative agency against the City, or against any officer of the City, which
question the validity of 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 City,
10.02. Covenants. The City covenants with the Developer that until the earlier of the Termination
Date or the Expiration Date:
a.
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.
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b.
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.
c.
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 or which will prevent or
adversely affect the development of the Project.
d.
The City shall not request or approve any rezoning of the Project Site, or any part
thereof: which will prevent or adversely affect the development of the Project,
e,
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.
11.01. Developer Acquiring Controlled Property. The obligations of the Developer under the
Agreement are subject to the fulfillment to the satisfaction of: or waiver in writing by, the
Developer of each of the following conditions precedent:
a.
The Developer shall have received evidence satisfactory to the Developer that the
Project Site permits ,the uses contemplated in this Agreement.
b.
The Plans and Specifications as are required for issuance of the Building Permit
required to commence construction of the First Phase of the Project shall have been
approved by the City in accordance with applicable ordinances, land use regulations,
building codes and other regulations of the City.
c. The Developer shall have obtained a commitment for construction financing from the
Project Lender as provided in Article 6 hereof
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The City shall have closed and vacated any streets, alleys or other public rights-of-
way and existing plats 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 vacation of all such rights-of-way and existing plat in favor of the
Developer, provided however that the vacation will not be effective unless and until
the Developer has acquired the Controlled Property.
e.
The Building Permit and all other Governmental Approvals necessary for construction
of the Project to commence shall have been issued.
11.02. 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 Developer.
a.
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 after the Closing Date:
1.
The Developer shall fail to perform or comply with any material provision of
this Agreement applicable to it within the time prescribed therefore, after
receipt of a notice from the City pursuant to Paragraph 12. 02(b XI), provided,
however, that suspension of or delay in performance by the Developer during
any period in which the City is in default of this Agreement as provided in
Section 12.02 hereof will not constitute an event of default by the Developer
under this Subsection 12.0la., or
2.
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 p,etition 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
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3.
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 it: 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
1.
If an event of default by the Developer described in subsection (a) 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 Dev~loper 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 undei 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,
2.
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.
3.
Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount oftime 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.
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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. The obligations of
Developer are personal to Developer and shall not run with the title to the Project or
any part thereof or give rise to a lien or encumbrance on same.
12.02. Default by the City.
a.
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 hereofwillnot constitute an event of default by the City under this Subsection
12.02(a).
b.
1.
If an event of default by the City described in Subsection 12. 02( a) shall occur,
the Developer shall provide written notice thereof to the City, and, after
expiration of the curative period described in paragraph (2) 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.
2.
The Developer may not terminate this Agreement or institute an action
descnoed in paragraph (1) above if the City cures such event of default within
thirty (30) days after receipt by the City of written notice from the Developer
specifying in reasonable detail the event of default by the City, or if any such
event of default is of such nature that it cannot be completely cured within
such period, then within such reasonably longer period of time as may be
necessary to cure such default, provided however, if the City 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
Developer 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 Developer to the City if the City has commenced to cure
such default within such thirty (30) day period and is diligently prosecuting
such curative action to completion. The City shall within said thirty (30) day
period or such longer period promptly, diligently and in good faith proceed to
cure such event of default after receipt of the notice from the Developer and
shall succeed in curing such event of default within said period of time,
provided, however, if the City shall fail to cure such event of default within
said thirty (30) day or longer period or ceases to proceed diligently to timely
Page 25
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cure such event of default, then the Developer may proceed with its available
remedies without providing any additional notice to the City.
3.
Any attempt by the Developer to pursue any of the remedies referred to in
paragraphs (1) and (2) 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.
4.
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.
a.
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, including, but not limited
to, failure of a governmental authority to grant an approval required for development
Page 26
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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 (b) below to
occur or be satisfied shall not constitute an event of default by any party under this
Article 14, but may, upon the election of any party hereto, be the basis for a
termination of this Agreement in accordance with this Section.
In addition to any other rights of termination provided elsewhere in this Agreement,
this Agreement may be terminated as provided in subsection (c) by the City or the
Developer after the occurrence of any of the following events or conditions (except
for paragraph (3) in which event only the Developer may terminate this Agreement
pursuant to this subsection (b)):
1.
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, issue the Permits, issue the Building Permits, or approve any other
land use necessary to construct 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;
2.
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); or
3. The Developer is unable to acquire marketable title to the Controned Property
on or before March 31, 2000.
Upon the occurrence of an event described in subsection (b) 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, 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 be satisfied, stating its election to terminate this Agreement as a
result thereof: in which case this Agreement shall then terminate.
In the event of a termination pursuant to this Section 14.06, 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
Page 27
JMC\aty of Clearwater Agreement
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actions taken by the Developer and the City, or any of them, hereunder or con-
templated hereby, and each party shall be responsible for its own costs, however, the
provisions of Sections 10.01 and 10.02 shall apply and shall survive termination of
this Agreement, the provisions of this Subsection 14.07(d) to the contrary
notwithstanding.
12.06. Termination Certificate.
a.
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.
b.
The certificate described in Subsection (a) 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 ofPinellas 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 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
15.01 is subject to the following:
a.
such proceeding shall suspend the execution or enforcement of such charge, payment
or requirement;
b. such proceeding will not create any risk of impairment of the acqWSltlon or
preparation of the Project Site, the construction, completion, operation or use of the
Page 28
JMC\aty of Clearwater Agreement
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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;
c,
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
d.
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. '
14.02. Appointment of Arbitrators.
a.
1.
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, ifmore than one (1) arbitrator is to
be appointed, as one of the arbitrators.
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JMC\aty of Clearwater Agreement
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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.
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Within ten (10) days afterreceipt 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,
1.
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.
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.
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 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.
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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.
a,
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 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.
b,
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,
c.
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.
Page 31
JMC\aty of Cearwater Agreement
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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 14.06, "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.
a.
1.
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 hereofhas
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.
2.
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,
3.
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.
b.
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.
Page 32
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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 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.
a.
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.
b.
"Unavoidable Delay" means any of the following events or conditions or any
combination thereof acts of God, acts of the public enemy, riot, insurrection, war,
pestilence, archaeological excavations required by law, unavailability of materials after
timely ordering of same, 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).
c.
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.
d.
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.
Page 33
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ARTICLE 16. FIRE OR OTHER CASUALTY; CONDEMNATION.
16.01. Loss or Damage to Project.
a. Until the 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 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; provided, however, that nothing contained herein shall
obligate the Developer to rebuild any of the buildings or other improvements currently
on the Project Site that are to be demolished in order to construct the Project.
b.
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,
16.02. Partial Loss or Damage to Project. Any loss or damage by fire or other casuahy 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 18.01 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.
16.03. Project Insurance Proceeds.
a.
Whenever the Project, or any part thereof: shall have been damaged or destroyed, the
Developer shall promptly make proof ofloss 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.
b.
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,
Page 34
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16.04. 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.
16.05. 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 16.01 of this Agreement after the
taking, and, ifnot, can be retained by the Developer.
ARTICLE 17. MISCELLANEOUS
17.01. Assignments.
a.
By the Developer.
1.
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 to a successor developer, only with the
prior written consent of the City, provided that such successor developer
(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.
2.
If the assignee of Developer's right, title, interest and obligations in and to the
Project, or any part thereof assumes all of Developer's obligations hereunder
for the Project, or that part subject to such sale, conveyance, assignment or
other dispo~ion, 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.
3.
An assignment of the Project, or any part thereof: by the Developer to any
corporation, limited partnership, general partnership, joint venture or other
entity, in which the Developer or an entity under common ownership or
control with Developer shall not be deemed an assignment or transfer subject
Page 35
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to any restriction on or approvals of assignments or transfers imposed by this
Section 17.01, provided, however, that notice of such assignment shall be
given by the Developer to the City 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.
4.
No assignee of all or any part of the Developer's rights and obligations with
respect to part of the Project shall in any way be obligated or responsible for
any of the Developer's obligations with respect to any other part by virtue of
this Agreement unless and until such assignee has expressly assumed
Developer's such other obligations.
17.02. 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.
17.03. Notices.
a.
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, 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:
Mandalay Beach Club, Ltd,
2201 4th Street North [insert]
Suite 200
St. Petersburg, FL 33704
with copies to: with copies to:
Robert F. Greene, Esq,
Greene, Donnelly &, Schermer
1301 6th Avenue West
Suite 400
Bradenton, FL 34205
[insert]
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
Page 36
JMC\aty of Clearwater Agreement
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an effective delivery as provided in this Section 20.03. 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.
17.04. 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,
17.05. Venue; Submission to Jurisdiction.
a.
F or 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.
b.
Each party to this Agreement hereby submits to the jurisdiction of the State of
Florida, Pinellas County and the courts thereof and to the jurisdiction of the United
States District Court for the Middle District of Florida, for the purposes of any suit,
action, or other proceeding arising out of or relating to this Agreement and hereby
agrees not to assert by way of a motion as a defense or otherwise that such action is
brought in an inconvenient forum or that the venue of such action is improper or that
the subject matter thereof may not be enforced in or by such courts.
c.
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 asa 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 17.03.
17.06. 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
Page 37
JMC\aty of Clearwater Agreement
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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
17.07 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,
17.07. Complete Agreement; Amendments.
a. 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.
b.
Any provision of this Agreement shall be read and applied in para materia with all
other provisions hereof
c, This Agreement cannot be changed or revised except by written amendment signed by
all parties hereto.
17.08. 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 anyway
affect this Agreement or ~onstrue any article, section, subsection, paragraph or provision
hereof
17.09. 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.
17.10. 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.
17.11. 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.
Page 38
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17.12. 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.
17.13. Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills
and is pursuant to and for a public purpose and municipal purpose and is in the public interest,
and is a proper exercise of the City's power and authority.
17.14. No General Obligation. In no event shall any obligation of the City under this Agreement be
or constitute a general obligation or indebtedness of the City or the City, a pledge of the ad
valorem taxing power of the City or the City or a general obligation or indebtedness of the
City or 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, the City or any other
governmental entity or taxation in any form on any real or personal property to pay the City's
or the City's obligations or undertakings hereunder.
17.15. Technical Amendments; Survey Corrections. In the event that due to minor inaccuracies
contained herein or any Exlnoit 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.
17.16. Term; Expiration; Certificate.
a.
If not earlier terminated as provided in Section 12.06, this Agreement shall expire and
no longer be of any force and effect on the tenth anniversary of the Effective Date
(''Expiration Date").
b.
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.
c.
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.
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d. The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records ofPinellas 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 ofPinellas County, Florida and the Developer
shall pay the cost of such recording.
17.17. Effective Date. Upon execution of this Agreement (and such of the Exhibits as are
contemplated to be executed simultaneously with this Agreement) by the authorized officers
of the City and by authorized representatives of the Developer following approval hereofby
the City and the Board of Directors of the Developer, this Agreement (and any executed
Exhibits) shall then be in full force and effect in accordance with its terms and the date of such
execution shall be the Effective Date.
17.18. 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.
Page 40
JMC\City of Clearwater Agreement
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IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals
affixed as of this _ day of . 1999.
THE CITY OF CLEARWATER, FLoRIDA
Attest:
By:
By:
City Clerk
Mayor
Approved as to form and correctness:
, Esquire
City Attorney
STATE OF FLORIDA )
)
COUNTYOFPThrnLLAS )
The foregoing instrument was acknowledged before me this _ day of , 19
_ by and , Mayor and City Clerk,
respectively, for the City of Clearwater, Florida, on behalf of the City.
By:
Signature of Notary Public
My Commissions Expires:
Printed, typed or stamp
Page 41
JMC\aty of Clearwater Agreement
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MANDALAY BEACH CLUB, LTD.,
a Florida limited partnership
By: JMC Communities of Clearwater
ill, Inc., General Partner
By:
_President
STATE OF FLORIDA )
)
COUNTY OF PlNELLAS )
The foregoing instrument was acknowledged before me this _ day of , 19
_ by as President JMC Communities of Clearwater Ill, Inc., a
Florida corporation, as General Partner of , a Florida
limited partnership.
By:
Signature of Notary Public
My Commissions Expires:
Printed, typed or stamp
JMC\Clearwater Property\agreement for development 2
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JMC\City of Clearwater Agreement
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Exhibit "A"
Legal Description
Commercial Parcels
Lots 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 and 85 of CLEARWATER BEACH PARK,
according to the map or plat thereof: as recorded in Plat Book 10, Page 42, of the Public Records of
Pinellas County, Florida.
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EXHIBIT "B"
Legal Description
Controlled Property
Units A, B, C and D, FOUR SEASONS LANDINGS, a Condominium, per map or plat thereof as
recorded in Plat Book 10, Page 42 of the Public Records ofPinellas County, Florida, and
Declaration of Condominium recorded in Official Record Book 6830, Page 196, Public Records
ofPinellas County, Florida, the real property comprising such condominium being more
particularly described as follows:
Parcell:
Lots 27 and 28, CLEARWATER BEACH PARK, according to the map or plat thereof: as
recorded in Plat Book 10, Page 42 of the Public Records ofPinellas County, Florida.
Parcel 2:
All lands lying west of said Lots 27 and 28 to the mean high water line of the Gulf of Mexico and
lying south of a westerly projection of the common boundary line between Lots 26 and 27 of said
CLEARWATER BEACH PARK, and north of a line from the southwest corner of said Lot 28
projected west and parallel to said common boundary line between said Lots 26 and 27, together
with and including all littoral rights appurtenant thereto,
Parcel 3:
Lot 26 and the south ~ of Lot 25, CLEARWATER BEACH PARK, according to the map or plat
thereof: as recorded in Plat Book 10, Page 42 of the Public Records ofPinellas County, Florida.
Parcel 4:
All lands lying west of said Lot 26 and the south ~ of said Lot 25 to the mean high water line of
the Gulf of Mexico and lying north of a westerly projection of the common boundary line between
Lots 26 and 27 of said CLEARWATER BEACH PARK, and south ofa line from the northwest
corner of the south ~ of said Lot 25 projected west and parallel to said common boundary line
between said Lots 25 and 26, together with and including all littoral rights appurtenant thereto,
TOGETHER WITH:
Lots 39 and 40 and East 36 feet of South 8.5 feet of Lot 41, Clearwater Beach Park, as per plat
thereof recorded in Plat Book 10, Page 42 of the Public Records ofPinellas County, Florida,
TOGETHER WITH:
Lots 14, 15, 16, 17, 18, 19,20,21,22,23,24, North ~ of25, 29, 30, 31, 32, 33, 34, 35, 36, 37,
38,41 and 42, less the East 36 feet of the South 8.5 feet of Lot 41, Clearwater Beach Park, as per
plat thereof recorded in Plat Book 10, Page 42 of the Public Records ofPinellas County, Florida.
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CITY OF CLEARWATER
pLA.,~I~G & DEVELOP:-'1E~T SER'vlCES ..\D:-'HNlSTRATIO~
PO-;T OFFICE Box 47 -i8. CLE.\R\\\n:R. FLORJD... 33758--41-48
~tL':'IC1P,.o.L SER\1CES BULDI:-G. 100 SoL TH ~IYlnu: :\VE:";I.E, ClE.\R'1'.\TER. FLORJD.... 3r:;6
TE1HHO:";E (:'2"/ 562.-f;6-:' F\,O( \-2-) 562.-1576
October 4, 1999
Mr. John Hobach, President
JMC Communities
2201 4th Street North, Suite 200
St. Petersburg, Florida 33704
Dear John,
..
I have reviewed the conceptual site plan for your proposed project west of Mandalay on
Clearwater Beach based on the current Community Development Code regarding the
density, height, parking and setbacks that are being proposed.
Density: From west to east the following development potential exists. Based on the
units you control for Lots 14-28- as a result of the settlement agreement, there are one
hundred-twelve units available. The right of way area from Gulfview would yield twelve
units at thirty units per acre. And the property immediately east of Gulfview would yield
twenty-four units at thirty units per acre. The total for the combined area would be one
hundred forty-eight units. You have indicated an intent to transfer nine units to this
property, which would yield a total unit count of one hundred-fifty seven units.
Height: The proposed height of the project is one hundred-fifty feet. This height would
be allowed subject to approval by the Community Development Board and is consistent
with the allowed height in conjunction with the transfer of development rights.
Parking: You have proposed two hundred-thirty-six parking spaces, which meets the
spaces required by code.
Setbacks: You have proposed a minimum of a ten feet rear setback, which is consistent
with the code.
.
O\E Cm, O\E FLTl'RE,
BRi\.' J. :\lSG~T. ~l\\OR.Cm\~USSIO'ER
ED HOOPER. VICE ~l"'\'OR.CO~\~U~SIO'ER
ED H.\RT. CO~\"b~IO'ER
*
BOB CL\RK, Cl''.!\\lS'IO'F.R
J ,B, J.)H\'0\. CC\\:\\lSSIO'F.R
"[Ql',\!, E\\PLOY\IE\T .\.'D :\HIINnln: ACTIO' E\\PI.OYER"
1{e6f)/tdJt>n 00-1:2-
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i The project, as proposed, would require review and approval by the Community
.J Development Board after a required public hearing. If you have any questions please
contact me at 562-4583.
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Ralph Stone, Planning Director
Cc: Pam Akin, City Attorney
John Asmar, Planning and Development Services Administrator
Robert Keller, Assistant City Manager
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EXHIBIT "D"
Project Site
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SITE: LoCATION MA~_J
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