05-04
RESOLUTION 05-04
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CLEARWATER AND CBR
DEVELOPMENT I, LLC AND CBR DEVELOPMENT II,
LLC; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Clearwater is desirous of entering into a development
agreement with CBR Development I, LLC and CBR Development II, LLC; now,
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
CLEARWATER, FLORIDA:
Section 1. The Development Agreement between the City of Clearwater and
CBR Development I, LLC and CBR Development II, LLC, a copy of which is attached as
Exhibit "N is hereby approved.
Section 2.
This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this.2.OJ:h day of January
,2005.
t~~/~
~nk V. Hibbard .
Mayor
Approved as to form:
Attest:
Jj~j
Pamela K. Akin
City Attorney
~ ~.
Resolution 05-04
DEVELOPMENT AGREEMENT FOR
PROPERTY
IN THE
CITY OF CLEARWATER
between
THE CITY OF CLEARWATER, FLORIDA
and
CBR DEVELOPMENT I, LLC AND
CBR DEVELOPMENT II, LLC
Dated as of , 2005
~ EXHIBIT
1 A
~
iii
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS ............................... .... ............. ...................... .......... ...... .............. ...... 2
Section 1.01 Definitions ................................... ... .... ...... .............. ........................... ..... ...... 2
Section 1.02 Use of Words and Phrases .........................................................................4
Section 1.03 Florida Statutes............................................................................................ 4
ARTICLE 2. PURPOSEAND DESCRIPTION OF PROJECT .....................................................4
Section 2.01 Finding of Public Purpose and Benefit........................................................4
Section 2.02 Purpose of Agreement.................................................................................4
Section 2.03 Scope of the Project ....................................................................................4
Section 2.04 Cooperation of the Parties..............,............................................................ 6
ARTICLE 3. REGULATORY PROCESS..................................................................................... 6
Section 3.01 Land Development Regulations.................................................................. 6
Section 3.02 Development Approvals and Permits .......................................................... 7
Section 3.03 Concurrency................................................................................................. 8
ARTICLE 4. PLANS AND SPECiFiCATIONS............................................................................. 8
Section 4.01 Plans and Specifications............................................................................. 8
ARTICLE 5, PROJECT DEVELOPMENT................................................................................... 9
Section 5.01 Ownership of Project Site ............................................................................ 9
Section 5.02 Project Site..................................... ................................ ............ ........ ...... .... 9
Section 5.03 Obligations of the City.................................................................................. 9
Section 5.04 Obligations of the Developer .....................................................................11
ARTICLE 6. PROJECT FINANCiNG......................................................................................... 12
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
Section 6.10
Section 6.11
Section 6.12
Development Agreement
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Notice of Project Financing to City ............................................................12
Copy of Default Notice to City.................................................................... 12
Intentionally Omitted.................................................................................. 12
Assignment of Rights Under Agreement to Project Lender ......................13
Notice to Project Lender ............................................................................13
Consent of Project Lender......................................................................... 13
Estoppel Certificates.................................................................................. 13
Cooperation............................................................................................... 13
Reinstatement by Project Lender.............................................................. 13
New Agreement...... ...................................................................................13
Transfer of New Agreement...................................................................... 14
Survival...................................................................................................... 14
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ARTICLE 7, CONSTRUCTION OF PROJECT .........................................................................14
Section 7.01 Project Site......................................................... .............. ..........................14
Section 7.02 Construction of the Project ......................................................................14
Section 7.03 City not in Privity ................................................................................;.......17
Section 7.04 Construction Sequencing and Staging Area .............................................17
ARTICLE 8. INDEMNIFiCATION............................................................................................... 17
Section 8.01 Indemnification by the Developer ..............................................................17
Section 8.02 Indemnification by the City......................................................................... 18
Section 8.03 Limitation of Indemnification ......................................................................18
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE DEVELOPER................................................................................................ 19
Section 9.01 Representations and Warranties............................................................... 19
Section 9.02 Covenants.................................................................................................. 20
ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE CiTy............................................................................................................... 21
Section 10.01 Representations and Warranties............................................................... 21
Section 10.02 Covenants.................................................................................................. 22
ARTICLE 11, CONDITIONS PRECEDENT........................................ .......... ....... ........................23
Section 11.01 The Developer Acquiring Project Site .......................................................23
Section 11.02 Construction of Project ..............................................................................23
Section 11.03 Responsibilities of the Parties for Conditions Precedent..........................23
ARTICLE 12. DEFAULT; TERMINATION ........ ........................ ........................... ..............,........ 24
Section 12.01 Project Default by the Developer............................................................... 24
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 Prior to Commencement of Project....................................... 27
Section 12.06 Termination Certificate.............................................................................. 28
ARTICLE 13, RIGHT TO CONTEST. ................... ............................ ......... .......... ......................28
Section 13.01 Right to Contest......................................................................................... 28
Section 13.02 Conditions.................................................................................................. 28
Development Agreement
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ARTICLE 14, ARBITRATION.................................................................................................... 29
Section 14.01 Agreement to Arbitrate............................................................................... 29
Section 14.02 Appointment of Arbitrators......................................................................... 29
Section 14.03 General Procedures.................................................................................. 30
Section 14.04 Majority Rule.............................................................................................. 30
Section 14.05 Replacement of Arbitrator... ......... ........ ...... .......................... ...................... 30
Section 14.06 Decision of Arbitrators.............;................................................................. 31
Section 14.07 Expense of Arbitration............................................................................... 31
Section 14.08 Accelerated Arbitration.............................................................................. 31
Section 14.09 Applicable Law........................................................................................... 32
Section 14.10 Arbitration Proceedings and Records .......................................................32
ARTICLE 15, UNAVOIDABLE DELA V .....................................................................................32
Section 15.01 Unavoidable Delay.. ...................................................................................32
ARTICLE 16, RESTRICTIONS ON USE....................;.................. ............................................33
Section 16.01 Project........................................................................................................ 33
ARTICLE 17. FIRE OR OTHER CASUAL TV; CONDEMNATION............................................ 33
Section 17.01 Loss or Damage to Project........................................................................ 33
Section 17.02 Partial Loss or Damage to Project.............................................................33
Section 17.03 Project Insurance Proceeds ......................................................................34
Section 17.04 Notice of Loss or Damage to Project.........................................................34
Section 17.05 Condemnation of Project or Project Site; Application
of Proceeds................................................................................................ 34
ARTICLE 18, MiSCELLANEOUS.............................................................................................. 34
Section 18.01 Assignments........... ...................................................................................34
Section 18.02 Successors and Assigns ........................................................................... 35
Section 18.03 Notices....................................................................................................... 35
Section 18.04 Applicable Law and Construction.............................................................. 36
Section 18.05 Venue; Submission to Jurisdiction ............................................................36
Section 18.06 Estoppel Certificates.................................................................................. 37
Section 18.07 Complete Agreement; Amendments......................................................... 37
Section 18.08 Captions..................................................................................................... 37
Section 18.09 Holidays..................................................................................................... 37
Section 18.10 Exhibits.......................................................... ............................................37
Section 18.11 No Brokers................................................................................................. 37
Section 18.12 Not an Agent of City...................................................................................37
Section 18.13 Recording of Development Agreement..................................................... 38
Section 18.14 Public Purpose...................... .....................................................................38
Section 18.15 No General Obligation............................................................................... 38
Section 18.16 Other Requirements of State Law.............................................................38
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Section 18.17 Technical Amendments; Survey Corrections.......... ..................................38
Section 18.18 Term; Expiration; Certificate...................................................................... 38
Section 18.19 Approvals Not Unreasonably Withheld ...... ....... ........................................39
Section 18.20 Effective Date............................................................................................ 39
Development Agreement
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EXHIBITS
Legal Description of Controlled Property........................................................................................ A
Project Description.......................................................................................................................... B
Minimum Quality Standard .................. .... .... ........... ................. ........ .......... .... ................ .... .......... B-1
Beach Property Description......................................................................................................... B-2
Upland Property Description........................................................................................................ B-3
Project Site.................................. ..................................................................................................... C
Project Development Schedule...................................................................................................... D
Covenant Regarding Trip Generation Management Program ....................................................... E
Covenant Regarding Hurricane Watch Closure.............................................................................. F
List of Required Permits & Approvals............................................................................................. G
Mandalay Improvements................................................................................................................ H
Streetscape/Landscape Improvements - Mandalay Right-of-Way............................................ H-1
Lift Station Improvements............................................................................................................ H-2
Lift Station Improvement Requirements...................................................................................... H-3
Baymont Improvements....................................................................................................................1
Streetscape/Landscape Improvements - Baymont Right-of-Way............................................... .1-1
Ambler Improvements...................................................................................................................... J
San Marco Improvements.............................................................................................................. K
Amenity Improvements.................................................................................................................... L
Covenant of Unified Use................................................................................................................. M
Boat Slips....:................................................................................................................................ ... N
Agreement - Boat Slips............................................................................................................... N-1
Development Agreement
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DEVELOPMENT AGREEMENT FOR
PROPERTY IN THE CITY OF CLEARWATER
This Development Agreement for Property in the City of Clearwater (the "Agreement") is
made as of this _ day of , 2005, by and between THE CITY OF
CLEARWATER, FLORIDA, a Florida municipal corporation (the "City") and CBR Development I,
LLC, a Florida limited liability company and CBR Development II, LLC, a Florida limited liability
company (collectively, the "Developer").
WITNESSETH:
WHEREAS, the City of Clearwater has embarked on a community revitalization effort for
Clearwater Beach;
WHEREAS, one of the major elements of the City's revitalization effort is a preliminary
design for the revitalization of Clearwater Beach entitled Beach by Design;
WHEREAS, the City has adopted Beach by Design pursuant to the Pinellas Planning
Council's Rules in support of the City's Comprehensive Plan;
WHEREAS, Beach by Design proposed a limited number of catalytic resort projects to
reposition and re-establish Clearwater Beach as a quality, family resort community and further
provides for a limited pool of additional hotel units (Hotel Unit Pool) to be made available for such
projects;
WHEREAS, because increased residential density on barrier islands is a critical concern
under Florida law , Beach By Design limits the use of the Hotel Unit Pool to overnight
accommodations and limits tenancies to 30 days or less;
WHEREAS, a key criteria for eligibility for the Hotel Unit Pool is the maintenance and
operation of the project of as resort hotel operating under a national or international "flag" or other
comparable marketing affiliation or program;
WHEREAS, Developer has proposed to develop a mixed use project, including a quality
resort hotel, on certain property fronting on Mandalay Boulevard (the "Project Site");
WHEREAS, it is necessary that the City take certain actions in order to make it possible for
Developer to develop the Project Site in accordance with the goals and objectives of Beach by
Design;
WHEREAS, the City has conducted such hearings as are required by and in accordance
with Chapter 163.3220 et sea. Fla. Stat. and applicable law;
WHEREAS, the City has determined that as of the Effective Date of this Agreement, the
proposed development is consistent with the City's Comprehensive Plan and Land Development
Regulations;
Development Agreement
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WHEREAS, at a duly called public meeting on ,2005, the
City Council approved this Agreement, and authorized and directed its execution by the appropriate
officials of the City; and
WHEREAS, the members of Developer have approved this Agreement and have authorized
the undersigned individual 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 of Property including any Exhibits and
any amendments thereto.
2. "Beach by Design" or "Plan" means the strategic redevelopment plan for Clearwater Beach
dated 2001 which was adopted by the City Council pursuant to the provisions of the Pinellas
County Planning Council's Rules for the designation of a Community Redevelopment
District, as amended by Ordinance 7294-04.
3. "Beach Club Outside Membership" means a Beach Club member that does not own or lease
a residence within the geographic area bounded on the west by the Gulf of Mexico, on the
east by Clearwater Bay, on the north by Rockaway Street and the south by Papaya Street.
4. "City" means the City of Clearwater, Florida, a Florida municipal corporation.
5. "City Council" means the governing body of the City.
6. "Commencement Date" means the date on which Developer commences or causes a
Contractor to commence construction of a Phase of the Project (see Section 7.02.1.a.).
7. "Completion Date" means the date on which the last certificate of occupancy required forthe
Project is issued.
8. "Construction Completion" means the date a Construction Completion Certificate is issued
for a Phase of the Project (see Section 7.04).
9. "Controlled Property" means those properties within the Project Site which are owned by
Developer or subject to a purchase contract in favor of the Developer or an affiliate or
nominee on the Effective Date of this Agreement (see Section 5.01) which are more
particularly described in the legal description set out in Exhibit 6. to this Agreement.
9. "Developer" means, for the purposes of this Agreement, CBR Development I, LLC, and its
successors and assigns as provided in Article 18.
10. "Effective Date" means the date of approval and execution of this Agreement.
Development Agreement
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11. "Exhibits" means those agreements, diagrams, drawings, specifications, instruments, forms
of instruments, and other documents attached hereto and designated as exhibits to, and
incorporated in and made a part of, this Agreement.
12. "Hotel Phase" of development means the portion of the Project as depicted on Exhibit C,
including the quality resort hotel containing a minimum of two hundred forty (240) rooms
which may be undertaken, but shall not be required to be completed before other portions of
the Project are commenced.
13. "Hotel Unit Pool" means that hotel unity density pool created by the City pursuant to Beach
By Design.
14. "Meeting Space" means any building floor area which can be used in conjunction with
conference or meeting activities.
15. "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.
16. "Plans and Specifications" means, as to each part of the Project to be developed, the site
plan for the Project to be developed, filed with the City as required by the Land Development
Regulations for the purpose of review and approval.
17. "Project" means, collectively, the development of a mixed use project including quality resort
hotel, beach club, residential condominium and commercial components (retail, restaurant,
office) proposed by the Developer as described in Section 2.03(1) of this Agreement and the
Project Description which is attached hereto as Exhibit ~.
18. "Project Site" means the land area generally bounded on the east by the western edge of the
right-of-way of Mandalay Boulevard, on the north by the southern boundary of Lots 2-4 of
Millers Replat (PB 26, Pg 17) on the south by the northern right-of-way of San Marco Street
and on the west by the Gulf of Mexico, which is more particularly described and depicted on
Exhibit C (see Section 5.02).
19. "Residential/Retail Phase" of development means the portion of the Project as depicted on
Exhibit C, including the four (4) story residential condominium building with retail on the
ground floor.
20. "Residential Tower Phase" of development means the portion of the Project as depicted on
Exhibit C, including the fifteen (15) story residential condominium building.
21. "Termination Date" means the date a termination certificate is issued pursuant to Article 12.
22. "Termination for Cause" means a termination which results from an uncured, material breach
of the Agreement.
23. "Unavoidable Delay" means a delay as described in Article 15 hereof.
24. "Vacation of Rights-of-Way" means the abandonment of the right-of-way of Beach Drive
(formerly N. Gulf Boulevard) between the north right-of-way of San Marco Street and the
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south right-of-way of Baymont Street by the City in favor of Developer, in order that the goals
and objectives of the Comprehensive Plan may be better accomplished.
1,02. Use of Words and Phrases, Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, the singular shall include the plural as well as the singular
number, and the word "person" shall include corporations and associations, limited liability
corporations and partnerships, including public bodies, as well as natural persons. "Herein,"
"hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words
refer to this Agreement and not solely to the particular portion thereof in which any such
word is used.
1,03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (2004), as
amended from time to time.
ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT,
2,01. Finding of Public Purpose and Benefit. The proposed Project, including the acquisition
of the Controlled Property by the Developer and the design, construction, completion and
operation of the Project, and each part thereof, is hereby found by the parties hereto: (1) to
be consistent with and in furtherance of the objectives of the Comprehensive Plan of the City
of Clearwater, (2) to conform to the provisions of Florida law, (3) to be in the best interests of
the citizens of the City, (4) to further the purposes and objectives of the City, including,
without limitation, the addition of resort hotel rooms adjacent to the beach providing for
transient occupancy pursuant to the standards established hereunder, (5) to further the
public interest on Clearwater Beach, and (6) to implement Beach by Design, including the
creation of the new quality hotel resort to be constructed as a part of the Project.
2.02. Purpose of Agreement. The purpose ofthis Agreement is to further the implementation
of Beach by Design by providing for the development of the Project Site and the construction
of certain public improvements, all to enhance the quality of life, increase employment and
improve the aesthetic and useful enjoyment of Clearwater Beach and the City, all in
accordance with and in furtherance of the Comprehensive Plan of the City of Clearwater and
as authorized by and in accordance with the provisions of Florida law.
2.03. Scope of the Project.
1. The Project shall only include resort hotel, beach club, spa, fitness center, residential
and commercial uses (retail, restaurant and office), private parking and appropriate
accessory uses and shall be developed in substantial conformity with the Project
Description which is attached as Exhibit~. When all required approvals have been
granted by the appropriate authorities pursuant to applicable law, the intensity of
permitted use on the Project Site shall be:
Hotel - not less than 240 and not more than 260 units including a minimum
of 20,000 square feet of Meeting Space and other amenities as further
described on Exhibit~.
Residential units - not to exceed 120 units.
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Beach Club - not to exceed 160 Beach Club Outside Memberships subject
to adjustment as provided below.
Commercial/Retail - not more than 11,000 square feet of floor area, not
more than 3,000 sq, ft. of which may be restaurant.
Private parking - a minimum of 431 parking spaces are to be provided based
on the following formula:
1.5 spaces for each condominium unit
.715 spaces for each hotel unit
2.7 spaces for each 1,000 square feet of commercial use
1.0 spaces for each 5 Beach Club Outside Memberships
In the event the number of condominium or hotel units or the square footage
of commercial use are reduced, the parking requirements shall be reduced in
accordance with the above formula. In the event total parking spaces
provided is less than the reduced amount approved by the CDB (431
spaces), Developer shall reduce Beach Club Outside Memberships by 5
members for each space not provided and in the event total parking spaces
provided are more than the reduced amount approved by the CDB (431
spaces), Developer may increase Beach Club Outside Memberships by 5
members for each additional space provided.
2. Nothing shall preclude the Developer from developing or operating all or portions of
the Project elements using any ownership format permitted under Florida Statutes
including fee simple, condominium, timeshare or fractional ownership formats.
3. Up to twenty-five percent (25%) of the hotel units may be suites with kitchens,
including all typical kitchen equipment and amenities. In addition, partial kitchens or
mini-kitchens may be allowed.
4. The following covenants and restrictions shall be applicable to all hotel units within
the Project regardless of ownership formats utilized. Notwithstanding any other
provision of this Agreement, no occupancy in excess of thirty (30) days per stay shall
be permitted in any hotel unit which is developed as a part of the Project. In addition,
no hotel unit shall be used as a primary or permanent residence and a minimum of
200 hotel units shall be required to be available to transient hotel guests for no fewer
than 330 days in any calendar year, subject to force majeure events making such
rooms unavailable for occupancy. In order to assure the high quality resort
experience called for under this Agreement, a minimum of 200 hotel units shall be
operated by a single hotel operator who shall meet the requirements as to operating
standards set forth in Exhibit B-1 of this Agreement. Prior to the issuance of a
certificate of occupancy for the resort hotel, the Developer shall record a covenant
and restriction which is enforceable by the City, substantially in accordance with
Exhibit E, limiting the use and operation of the hotel units, implementing this
paragraph.
5. As a condition of the allocation of hotel units from the Hotel Unit Pool pursuant to the
designation of Clearwater Beach as a Community Redevelopment District pursuant
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. to the Pinellas County Planning Council's Rules, the Developer shall comply with
each of the standards established in Beach by Design, including:
a. The resort hotel which is a part of the Project shall provide a full range of on
and off site amenities for the guests of the resort, including a full service
restaurant, room service, valet parking, exercise facilities, pool, and meeting
areas and access to boating, fishing and golf off-site. Off site amenities may
be provided through a concierge service.
b. The resort hotel which is a part of the Project shall be designed and operated
as a national or international"flag" or other comparable marketing affiliation
or program which will facilitate the repositioning of Clearwater Beach as a
national and international resort destination.
c. Prior to the issuance of a certificate of occupancy for the resort hotel which is
a part of the Project, the Developer shall record a covenant and restriction
which is enforceable by the City, substantially in accordance with Exhibit g,
limiting the use and operation of the resort, obligating the Developer to
develop, implement and operate at all times when the resort hotel is open, a
Trip Generation Management Program which shall include the provision of
non-private automobile access to and from the resort which shall include at
least an airport shuttle and resort-provided transportation to off-site amenities
and attractions.
d. Prior to the issuance of a building permit authorizing the construction of the
resort hotel units, the Developer shall record a covenant and restriction which
is enforceable by the City, substantially in accordance with Exhibit E, on the
use and operation of the resort, that imposes certain use restrictions on the
Hotel Phase and obligates the Developer to close and vacate all persons
(except for emergency personnel required to secure and protect the facilities)
from the resort hotel within twelve (12) hours after the issuance of a
hurricane watch which includes Clearwater Beach -by the National Hurricane
Center.
2,04. Cooperation of the Parties, The City and the Developer recognize that the successful
development of the Project and each component thereof is dependent upon the continued
cooperation of the City and the Developer, and each agrees that it shall act in a reasonable
manner hereunder, provide the other party with complete and updated information from time
to time, with respect to the conditions such party is responsible for satisfying hereunder and
make its good faith reasonable efforts to ensure that such cooperation is continuous, the
purposes of this Agreement are carried out to the full extent contemplated hereby and the
Project is designed, constructed, completed and operated as provided herein.
ARTICLE 3. REGULATORY PROCESS.
3.01. Land Development Regulations.
1. Land Use DesiQnation. The Project Site is designated Resort Facilities High in the
Comprehensive Land Use Plan and zoned Tourist District in the City's Land
Development Regulations.
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2. Amendments to Land Development ReQulations. 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 2.03.
3. Allocation of Hotel Unit Pool Units. Subject to the terms and conditions of this
Agreement, the City agrees to allocate and grant to Developer from the Hotel Unit
Pool an additional one hundred forty-one (141) hotel units to the Project Site in
accordance with applicable law. The allocation of additional hotel units from the
Hotel Unit Pool shall expire and be of no further force and effect unless the
Commencement Date occurs on or before the deadline hereafter set forth in Section
7.02.1.a.
4. Special Settlement Stipulation RiQhts. 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 CityofC/earwaterv. Gray, Case No. 85-4145-15 and Thacker,
et al v. City of Clearwater, Case No. 86-17457-16 (as amended, the "Consent
Decree") which increases permitted density on a portion of the property.
3,02 Development Approvals and Permits,
1. Applications for Development Approval. The Developer shall prepare and submit to
the appropriate governmental authorities, including the City, applications for approval
of all plans and specifications necessary for the Project, and shall bear all costs of
preparing such applications, applying for and obtaining such permits, including
payment of any and all applicable application, inspection, regulatory and impact fees
or charges. The City shall, to the extent possible, expedite review of all applications,
including foundation permits. A list of all permits and approvals required to
implement the provisions of this Agreement is attached as Exhibit G. The failure of
this Agreement to address a particular permit, condition, or term of restriction shall
not relieve the Developer of the necessity of complying with the law governing said
permitting requirements, conditions, terms or restrictions.
2. Schedule. A Project Development Schedule is attached to this Agreement as Exhibit
D that identifies anticipated commencement and completion dates for each Phase
of the Project.
3. Citv Cooperation and Assistance. The City shall cooperate with the Developer in
obtaining all necessary Permits required for the construction, completion and
opening for business of the Project. If requested by the Developer and authorized by
law, the City will join in any application for any Permit, or, alternatively, recommend to
and urge any governmental authority that such Permit or Permits be issued or
approved.
4. City Authoritv Preserved. The City's duties, obligations, or responsibilities under any
section of this Agreement, specifically including, but not limited to, this Section 3.02,
shall not affect the City's right, duty, obligation, authority and power to act in its
governmental or regulatory capacity in accordance with applicable laws, ordinances,
codes or other building regulations. Notwithstanding any other provision of this
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Agreement, any required permitting, licensing or other regulatory approvals by the
City shall be subject to the established procedures and substantive requirements of
the City with respect to review and permitting of a project of a similar or comparable
nature, size and scope. In no event shall the City, due to any provision of this
Agreement, be obligated to take any action concerning regulatory approvals except
through its established procedures and in accordance with applicable provisions of
law.
5. Impact Fees. The City shall use its best efforts to secure or provide any lawfully
available credits against impact fees applicable to the Project which are authorized
under existing laws and regulations for public improvements constructed and paid for
by the Developer. In the event that the City is unable to secure a credit against any
impact fees, the City shall use its best efforts, within the limits of the applicable law,
to allocate impact fees collected from the Developer to the public improvements
which are described in Exhibits H, 1, J and is to this Agreement or other
improvements in the immediate vicinity of the Project Site.
3,03. Concurrency,
1. Concurrency Reauired. The parties hereto recognize and acknowledge that Florida
law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida
Administrative Code, collectively the "Growth Management Act") imposes restrictions
on development if adequate public improvements are not available concurrently with
that development to absorb and handle the demand on public services caused by
development. The City has created and implemented a system for monitoring the
effects of development on public services within the City. The Developer recognizes
and acknowledges it must satisfy the concurrency requirements of Florida law and
the City's regulations as applied to this Project.
2. Reservation of Capacity. The City hereby agrees and acknowledges that as of the
Effective Date of this Agreement, the Project satisfies the concurrency requirements
of Florida law. The City agrees to reserve the required capacity to serve the Project
for the Developer and to maintain such capacity 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 the Developer commences construction
within the initial three (3) year period. The City recognizes and acknowledges that
the Developer will rely upon such reservation in proceeding with the Project.
3. Reauired Public Facilities. In addition to the obligations of the City and the
Developer set out in Article 5 of this Agreement, the Public Utilities Department of
the City will provide potable water service and sanitary sewer service to the Project.
ARTICLE 4. PLANS AND SPECIFICATIONS.
4,01. Plans and Specifications.
1. Responsibility for Preparation of Plans and Specifications. The Developer shall be
solely responsible for and shall pay the cost of preparing, submitting and obtaining
approval of the Plans and Specifications for the Project.
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2. Use of Qualified Professionals. The Developer shall retain qualified professionals to
prepare the Plans and Specifications and shall cause such professionals to prepare
the Plans and Specifications.
ARTICLE 5. PROJECT DEVELOPMENT.
5,01, Ownership of Project Site, The Developer is the owner or contract purchaser of certain
parcels of land (each, a "Parcel" and collectively, the "Parcels") within the Project Site which
are more particularly described in Exhibit A to this Agreement ("Controlled Property").
5.02, Project Site, The Project Site consists of those properties located generally in an area
which is bounded by the east by the western edge of the right-of-way of Mandalay
Boulevard, on the north by the southern boundary of Lots 2-4 of Millers Replat (PB 26, Pg
17) on the south by the northern right-of-way of San Marco Street and on the west by the
Gulf of Mexico, as more particularly described in Exhibit C.
5,03, Obligations of the City,
1. Vacation of RiQhts-of-Wav. The Developer shall apply for and the City Council shall
consider the adoption of an ordinance vacating the right-of-way of Beach Drive
(formerly North Gulfview Boulevard) between San Marco Street and Baymont Street
as depicted on Exhibit C.
2. Mandalav Improvements. The Developer shall, at its expense, realign the curb on
Mandalay Avenue, construct a new sidewalk, related streetscape improvements and
landscape improvements as further described in Exhibit H (the "Mandalay
Improvements"). The City shall grant to Developer, at Developer's expense, the right
to relocate the electrical panels for the lift station at Mandalay and Baymont as
described in Exhibit H-1 (the "Lift Station Improvements").
3. Permits. The City will cooperate and coordinate with the Developer with regard to all
permit applications, including those to state agencies, and will facilitate or expedite,
to the greatest extent possible, the permit approval process.
4. Bavmont Improvements. The Developer, at its expense, shall construct streetscape
and landscape improvements (the "Baymont Improvements"), as further described in
Exhibit L provided that such improvements shall not interfere with or obstruct the use
of Baymont Street for pedestrian and vehicular movement in accordance with the
provisions of Beach by Design and such improvements are consistent with the
provisions of Beach by Design and the City Charter.
5. Ambler Street Improvements. The City shall grant the Developer the authority to
construct, at the Developer's expense, landscape and streetscape improvements
within the existing Ambler Street right-of-way and building improvements and
associated pedestrian facilities within the pedestrian easement reserved to the City
in Official Records Book 2228, Page 720 of the Public Records of Pinellas County,
Florida (the "Ambler Street Improvements"), as further described on Exhibit J..
Provided however, that such improvements shall not interfere with or obstruct the
use of Ambler Street for pedestrian and vehicular movement or the use of the
pedestrian easement so as to reduce the width or clearance height of the pedestrian
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underpass from the existing as-built condition prior to commencement of the Project;
and provided that such improvements are consistent with the provisions of Beach by
Design and the City Charter.
6. San Marco Improvements. The City shall grant the Developer the authority to
construct, at its expense, the sanitary sewer line in the San Marco right-of-way ("San
Marco Improvements") as further described on the attached Exhibit fS. Developer
shall be responsible for all costs of relocation, including the cost of restoring San
Marco.
7. Vacation of Plat. The Developer shall prepare, at its expense and submit to an
application for vacation and City shall consider the vacation of that part of the plat of
Clearwater Beach Park as recorded in Plat Book 10, Page 42 of the Public Records
of Pinellas County, Florida and other plats of record (the "Existing Plats") which
include the Project Site and replat said property as reasonably required for the
development of the Project.
8. Conveyance of Beach Property to City. Developer agrees to convey to City by
special warranty deed, free and clear of liens and encumbrances, the real property
described on the attached Exhibit B-2 (the "Beach Property"). City agrees to accept
the conveyance of the Beach Property as additional consideration for the allocation
of the additional hotel units from the Hotel Unit Pool and, as approved by the City
Manager, in satisfaction of the Recreation Facility Land Fees and Open Space Fees
as to the Project. Developer shall not be excused from payment of the Recreation
Facility Fees which shall be due and payable in accordance with the City ordinance
imposing such fees. The property owned by Developer between the Beach Property
and the portions of the Project site to be improved, as described on the attached
Exhibit B-3, is hereafter referred to as the "Upland Property". The general public
shall be entitled to continue to use the Upland Property as the general public is
currently using such property. Future use of the Upland Property by the general
public shall not unreasonably interfere with or disturb the use of such property by
Developer and its successors, assigns, tenants, invitees and guests. The Developer
and its successors, assigns, tenants, invitees and guests shall be entitled to use the
Beach Property in the future to the same extent and in the manner as the general
public. The City shall have the exclusive right to grant concessions as to the Beach
Property. Subject to applicable City regulations and permitting requirements, the
Developer may operate on the Upland Property concessions related to the use of the
beach and the adjacent waters by the general public and tourists visiting the beach
area, and by the Developer, its successors, assigns, tenants, invitees and guests.
Such concessions will be limited to the sale, rental or use of equipment, products
and services as is then common to the recreational and other use of the beach and
the recreational uses on, in and under the adjacent waters of the Gulf of Mexico. City
and Developer agree to impose a land use restriction on the Beach Property and
Upland Property that will prohibit use of such property for jet-ski or para-sail
operation concessions.
9. Approval of Construction Bevond CCCL and/or in V Zone. The City acknowledges
that for Developer to provide a quality beach resort, it will be necessary for
Developer to construct and operate certain improvements below the base flood
elevation and/or seaward of the Coastal Construction Control Line, such
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improvements to include pool(s), spa(s), decks, pool bathrooms, pool bar/grill,
boardwalks, landscaping and associated improvements and facilities (the "Amenity
Improvements") as further described on the attached Exhibit ,b. The City shall
cooperate with Developer in obtaining all necessary Permits for the Amenity
Improvements and agrees that such Amenity Improvements are necessary
requirements for a quality beach resort hotels.
10. Boat Dockina Facilities. The City owns certain real property adjoining a boat basin
immediately to the North of the Belle Harbor Condominium project ("Boat Basin").
The City agrees to jointly pursue with Developer the acquisition of a sovereignty
submerged lands lease ("SSLL") from the State of Florida that will permit
construction of boat docking facilities ("Boat Docking Facilities"). Developer agrees
to pursue, at Developer's expense, the SSLL, all required Permits for construction of
boat slips (the "Boat Slips") in the Boat Basin as conceptually depicted on the
attached Exhibit N. In the event Developer is able to obtain the SSLL and Permits for
the Boat Slips, the City and Developer shall enter into an agreement in the form
attached as Exhibit N-1 that will authorize the Developer to construct the new Boat
Slips, at Developer's sole expense, and provide for the Developer and its designated
successors and assigns to have the right to utilize sixty-seven percent (67%) of such
Boat Slips so long as the Boat Docking Facilities continues to exist. The agreement
will provide (i) for Developer to pay all maintenance and repair costs for the Boat
Slips, (ii) for use of the Boat Slips to be limited to Project owners, tenants and
guests, (iii) for Developer to provide a shuttle service to the Boat Slips from the
Project, and (iv) for the assignment of Boat Slips to be limited to Project owners.
11. Sales/Construction Offices. The City acknowledges Developer's plan to construct
sales/construction offices on a portion of the Project Site. City agrees to expedite the
review of any permit application submitted by Developer as to the sales/construction
offices.
12. Improvements Within Riaht-of-Wav. The City authorizes the Developer to make
certain Project improvements within the City rights-of-way adjoining the Project Site
as depicted on the approved site plan ("Project Improvements"). City will grant to
Developer a Right-of-Way Permit to install, maintain, repair and replace all
encroaching Project Improvements approved by the City; provided, however, that
Developer shall be solely responsible for all costs relating to the Project
Improvements and shall execute and deliver to City a maintenance agreement in
form and content reasonably acceptable to City.
13. Timelv Completion. The City recognizes the public importance of the timely
completion of the proposed Project, and time is deemed to be of the essence. The
City considers this Agreement as overall authority for the Developer to proceed to
permit, and agrees to implement a fast-track review, permitting, and inspection
program for this Project.
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5.04. Obligations of the Developer.
1. Resort Hotel Proiect. The Developer shall build and operate a no less than two
hundred forty (240) room resort hotel to be operated as a quality resort in
accordance with the Minimum Quality Standard as provided for in Exhibit B-1.
2. Responsibility for On-Site Costs. The Developer shall be responsible for all on-site
costs relative to the development of the Project, including the private parking spaces.
3. Mandalay. Baymont. Ambler and San Marco Improvements. The Developer shall be
responsible for all design and construction costs for all Mandalay and Baymont
Improvements as provided on Exhibits Hand! and for all design and construction
costs for all Ambler and San Marco Improvements as provided on Exhibits.4 and K.
4. Storm Drainaae Improvement. The Developer shall design and construct storm
drainage improvements for the City in the San Marco Street right-of-way in
accordance with the approved site plan ("San Marco Drainage Improvements"). The
Developer further agrees to design and construct storm drainage improvements
north of Baymont Street within the Mandalay Avenue right-of-way and the connection
to Clearwater Bay as shown on the approved site plan ("Manda lay Drainage
Improvements"). City shall reimburse Developer for all reasonable design and
construction costs for the San Marco Drainage Improvements. Developer shall pay
all design and construction costs for the Mandalay Drainage Improvements.
5. Covenant of Unified Use. The Developer hereby agrees to execute the covenant of
unified use and development for the Controlled Property providing that the Controlled
Property shall be developed as a single project and operated and used as a unified
mixed use project, which is attached as Exhibit M; provided however, that nothing
shall preclude the Developer from selling all or a portion of the Controlled Property in
a condominium form of ownership.
6. Proiect Obliaations. The Developer agrees to carry out the redevelopment of the
Project Site by completing the purchase of all of the Controlled Property, preparing
project plans and specifications, obtaining approvals by governmental authorities
necessary for development of the Project, demolishing existing improvements,
constructing various private improvements on the Project Site and operating the
Project as a unified and integrated project. The Developer shall take all actions
necessary to maintain control of the Project Site, until certificate(s) of occupancy are
issued by the City.
ARTICLE 6, PROJECT FINANCING,
6.01. Notice of Project Financing to City. As soon as the Developer shall have obtained any
financing for any portion of the Project, the Developer shall provide the City with a sworn
statement identifying the Project Lender(s) and documenting the type of financing that the
Project Lender(s) has issued in favor of the Developer for the Project.
6.02. Copy of Default Notice to City. The Developer covenants and agrees that any Project
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
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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 the
Developer and shall include copies of any pleadings in any proceeding instituted by the
Project Lender(s) incident thereto.
6.03. Intentionally Omitted.
6.04. 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 instrument or any sale under the instrument, either by
judicial proceedings or by virtue of any power reserved 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 reserved 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, foreclosure, conveyance or exercise of right shall relieve Developer from its
liability under this Agreement.
6.05. 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.
6.06, Consent of Project Lender. This Agreement cannot be amended, canceled, or surrendered
by the Developer without the consent of the Project Lender.
6,07. 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.
6.08. Cooperation. The City and the Developer shall cooperate as to reasonable requests for
assurances 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.
6.09. Reinstatement by Project Lender. If this Agreement is terminated by reason of the
happening of any event of default, and after any notice and cure period provided, City shall
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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.
6.10, New Agreement. City shall, on written request of a Project Lender which has acquired title
to the Project Site by foreclosure or deed in lieu of foreclosure, 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:
1. 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
2. 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.
6.11. 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 consent 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 Project 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.
6.12, Survival. The provisions of this Article 6 shall survive 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.
ARTICLE 7, CONSTRUCTION OF PROJECT.
7.01, Project Site. The Developer shall be responsible for all site investigation, environmental
testing, demolition and site clearing.
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7.02. Construction of the Project.
1.
a.
Commencement. Developer shall construct the Project substantially in
accordance with the Plans and Specifications therefor. Developer shall
commence construction of the Hotel Phase of the Project on or before the
earlier of (i) one (1) year after receipt of all development approvals for the
Project, other than building permits; provided, however, that the running of
the one (1) year period shall be tolled for the period commencing on the date
of submittal by Developer for building permits for Hotel Phase and ending on
the date of issuance of the building permits for Hotel Phase, or (ii) two (2)
years after the Effective Date (such deadline being the "Hotel
Commencement Deadline"), and shall thereafter diligently pursue completion
of the Hotel Phase of the Project. Developer shall commence construction of
the Residential Tower Phase of the Project on or before the Hotel
Commencement Deadline and shall thereafter diligently pursue completion of
the Residential Tower Phase of the Project. Developer shall commence
construction of the Residential/Retail Phase of the Project within two (2)
years after the Hotel Commencement Deadline and shall thereafter diligently
pursue completion of the Residential/Retail Phase of the Project.
b. 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. The date that Developer shall commence construction of each
Phase is the "Commencement Date" of such Phase.
c. 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 Unavoidable Delay.
2. Pursuit of Construction. After the Commencement Date of each Phase, Developer
shall continue, pursue and prosecute the construction of such 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 7.02.2, "abandoned" means to have ceased
any construction work which effectively advances the construction of the Project
toward completion, including removing all or substantially all ofthe construction work
force from the Project site for a period of not less than sixty (60) days.
3. 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.
4. Construction Completion Certificate.
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a. For purposes of this Section 7.02, "completion, "complete," "substantially
IICltylawlCycomlWpdocslDOl 9IPOOl IO0003854.DOC
complete" or "substantial completion" means, with respect to construction of
a 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 substantially completed by the Project Lender under the
Construction Financing therefor.
b. Upon the substantial completion of the construction of any Phase of the
Project in accordance with the provisions of the Plans and Specifications,
Developer shall prepare and execute a 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 such
Phase of the Project has been completed substantially in accordance with the
Plans and Specifications and this Agreement. Upon making such a
determination, the City shaH 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.
c. 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 such 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 other governmental entity acting in its regulatory or governmental
capacity or an approval of said construction for purposes of the issuance of a
certificate of occupancy for that part of the Project.
d. If the City shall refuse or fail to execute any 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.
e. 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 hereof for the purpose
of determining if the prerequisites for execution by all parties of the
Construction Completion Certificate have been met, and if not, what actions
must be taken to satisfy such prerequisites.
f. The Construction Completion Certificate shall be in a form sufficient to be
recorded in the public records of Pinellas County, Florida. After execution by
the City, it shall be promptly returned to Developer who shall record the
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certificate in the public records of Pinellas County, Florida, and pay the cost
of such recording.
g. Developer agrees to complete the Hotel Phase of the Project on or before
two (2) years after the Commencement Date of the Hotel Phase. Developer
agrees to complete the Residential Tower Phase of the Project on or before
two (2) years after the Commencement Date of the Residential Tower Phase.
Developer agrees to complete the Residential/Retail Phase within eighteen
(18) months after the Commencement Date of the Residential/Retail Phase.
In the event Developer proceeds with construction of its Residential Tower
Phase with a building height greater than 100 feet prior to completion of the
Hotel Phase, Developer shall provide to the City of Clearwater a letter of
credit in the amount of One Million Dollars ($1,000,000) that shall secure
Developer's obligations under this Agreement as to completion of the Hotel
Phase and which letter of credit shall remain in full force and effect until the
Construction Completion Certificate for the Hotel Phase is recorded as
provided above. The letter of credit shall be in a form reasonably acceptable
to the City. In the event Developer defaults as to its obligations to commence
and/or complete the Hotel Phase and such default is not cured within any
applicable grace or cure period, the City shall have the right to draw on the
letter of credit and retain the full proceeds as liquidated damages for such
default. In the event for any reason Developer does not proceed with a
building in the Residential Tower Phase that exceeds 100 feet in height, this
provision shall be null and void and if a letter of credit has previously been
delivered to the City, it shall be promptly returned to Developer.
7.03. City Not in Privity, The City shall not be deemed to be in privity of contract with any
Contractor or provider of services with respect to the construction of any part of the Project
not constituting all or any part of public improvements.
7.04. Construction Sequencing and Staging Area, The Developer shall construct the Baymont
and Ambler Improvements in a manner and fashion which will minimize the inconvenience of
the construction on the property owners of Clearwater Beach and the residents of the City.
The City agrees to allow Developer to use portions of Baymont and Ambler Streets as
designated by the City for construction staging and Project office, during construction of the
Project, without charge to the Developer, provided that such staging area and Project office
does not unreasonably affect the maintenance of access provided for in this Paragraph.
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ARTICLE 8. INDEMNIFICATION.
8.01, Indemnification by the Developer.
1. The Developer agrees to indemnify, defend and hold harmless, the City, its
respective agents, officers, or employees from any and all liabilities, damages,
penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees
through appellate proceedings, for personal injury, bodily injury, death or property
damage arising out of, or by reason of any act or omission of the Developer, its
agents, employees or contractors arising out of, in connection with or by reason of,
the performance of any and all services covered by this Agreement, or which are
alleged to have arisen out of, in connection with or by reason of, the performance of
any and all services covered by this Agreement.
2. The Developer shall indemnify, defend and hold harmless the City, its officers and
employees from any and all liabilities, damages, costs, penalties, judgments, claims,
demands, losses, or expenses (including, but not limited to, actual attorneys' fees
and engineering fees) arising from or attributable to any breach by the Developer, as
the case may be, of any representations or warranties contained in Section 9.01, or
covenants contained in Section 9.02.
3. The Developer's indemnity obligations under subsections (1) and (2) of this Section
shall survive the earlier of the Termination Date or the Expiration Date, but shall
apply only to occurrences, acts, or omissions that arise on or before the earlier of the
Termination Date or the Expiration Date.
4. The Developer's indemnity hereunder is in addition to and not limited by any
insurance policy and is not and shall not be interpreted as an insuring agreement
between or among the parties to this Agreement, nor as a waiver of sovereign
immunity for any party entitled to assert the defense of sovereign immunity.
8,02, Indemnification by the City,
1. To the extent permitted by law, the City agrees to indemnify, defend and hold
harmless, the Developer, its respective officers, and employees from any and all
liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses
or attorneys' fees through appellate proceedings, for personal injury, bodily injury,
death or property damage arising out of, or by reason of, any act or omission of the
City, its respective agents or employees arising out of, in connection with or by
reason of, the performance of any and all services covered by this Agreement, or
which are alleged to have arisen out of, in connection with or by reason of, the
performance of any and all services covered by this Agreement.
2. The City shall indemnify, defend and hold harmless the Developer, its officers and
employees from any and all liabilities, damages, costs, penalties, judgments, claims,
demands, losses, or expenses (including, but not limited to, actual attorneys' fees
and engineering fees) arising from or attributable to any breach by the City, as the
case may be, of any representations or warranties contained in Section 10.01, or
covenants contained in Section 10.02.
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3. The City's indemnity obligations under this Section 8.02 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.
8,03. Limitation of Indemnification, Notwithstanding anything to the contrary contained herein,
with respect to the indemnification obligations of the Developer (as set forth in Section 8.01)
and the City (as set forth in Section 8.02), the following shall apply:
1. The indemnifying party shall not be responsible for damages that could have been,
but were not, mitigated by the indemnified party;
2. The indemnifying party shall not be responsible for that portion of any damages
caused by the negligent or willful acts or omissions of the indemnified party; and
3. There shall be no obligation to indemnify hereunder in the event that the indemnified
party (1) shall have effected a settlement of any claim without the prior written
consent of the indemnifying party, or (2) shall not have subrogated the indemnifying
party to the indemnified party's rights against any third party by an assignment to the
indemnifying party of any cause or action against such third party.
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER.
9.01. Representations and Warranties, The Developer represents and warrants to the City that
each of the following statements is currently true and accurate and agrees the City may rely
upon each of the following statements:
1. The Developer is a Florida Limited Liability Company duly organized and validly
existing under the laws of the State of Florida, has all requisite power and authority
to carry on its business as now conducted, to own or hold its properties and to enter
into and perform its obligations hereunder and under each document or instrument
contemplated by this Agreement to which it is or will be a party, is qualified to do
business in the State of Florida, and has consented to service of process upon a
designated agent for service of process in the State of Florida.
2. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or required by
this Agreement to which the Developer is or will be a party have been duly
authorized by all necessary action on the part of, and have been or will be duly
executed and delivered by, the Developer, and neither the execution and delivery
thereof, nor compliance with the terms and provisions thereof or hereof: (i) requires
the approval and consent of any other party, except such as have been duly
obtained or as are specifically noted herein, (ii) contravenes any existing law,
judgment, governmental rule, regulation or order applicable to or binding on the
Developer, (iii) contravenes or results in any breach of, default under or, other than
as contemplated by this Agreement, results in the creation of any lien or
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encumbrance upon any property of the Developer under any indenture, mortgage,
deed of trust, bank loan or credit agreement, the Developer's Articles of
Organization, or, any other agreement or instrument to which the Developer is a
party or by which the Developer may be bound.
3. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or required by
this Agreement to which the Developer is or will be a party constitutes, or when
entered into will constitute, a legal, valid and binding obligation of the Developer
enforceable against the Developer in accordance with the terms thereof, except as
such enforceability may be limited by applicable bankruptcy, insolvency or similar
laws from time to time in effect which affect creditors' rights generally and subject to
usual equitable principles in the event that equitable remedies are involved.
4. There are no pending or, to the knowledge of the Developer threatened actions or
proceedings before any court or administrative agency against the Developer, or
against any controlling shareholder, officer, employee or agent of the Developer
which question the validity of this Agreement or any document contemplated
hereunder, or which are likely in any case, or in the aggregate, to materially
adversely affect the consummation of the transactions contemplated hereunder or
the financial condition of the Developer.
5. The Developer has filed or caused to be filed all federal, state, local and foreign tax
returns, if any, which were required to be filed by the Developer and has paid, or
caused to be paid, all taxes shown to be due and payable on such returns or on any
assessments levied against the Developer.
6. All financial information and other documentation, including that pertaining to the
Project or the Developer, delivered by the Developer to the City was, on the date of
delivery thereof, true and correct.
7. The principal place of business and principal executive offices of the Developer is in
8t. 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.
8. As of the Effective Date, the Developer will have the financial capability to carry out
its obligations and responsibilities in connection with the development of the Project
as contemplated by this Agreement.
9. The Developer has the experience, expertise, and capability to develop, cause the
construction, and complete the Project and, oversee and manage the design,
planning, construction, completion and opening for business of the Project.
9.02, Covenants. The Developer covenants with the City that until the earlier of the Termination
Date or the Expiration Date:
1. The Developer shall timely perform or cause to be performed all of the obligations
contained herein which are the responsibility of the Developer to perform.
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2. During each year that this Agreement and the obligations of the Developer under
this Agreement shall be in effect, the Developer shall cause to be executed and to
continue to be in effect those instruments, documents, certificates, permits, licenses
and approvals and shall cause to occur those events contemplated by this
Agreement that are applicable to, and that are the responsibility of, the Developer.
3. The Developer shall assist and cooperate with the City to accomplish the
development of the Project by the Developer in accordance with the Plans and
Specifications, and this Agreement, and will not violate any laws, ordinances, rules,
regulations, orders, contracts or agreements that are or will be applicable thereto.
4. Subsequent to the Effective Date, the Developer shall maintain its financial capability
to develop, construct and complete the Project and shall promptly notify the City of
any event, condition, occurrence, or change in its financial condition which adversely
affects, or with the passage of time is likely to adversely affect, the Developer's
financial capability to successfully and completely develop, construct and complete
the Project as contemplated hereby.
5. The Developer shall promptly cause to be filed when due all federal, state, local and
foreign tax returns required to be filed by it, and shall promptly pay when due any tax
required thereby.
6. Subject to Section 18.01, the Developer shall maintain its existence, will not dissolve
or substantially dissolve all of its assets and will not consolidate with or merge into
another corporation, limited partnership, or other entity or permit one or more other
corporations or other entity to consolidate with or merge into it without the prior
approval of the City unless the Developer or an entity under common control with
Developer, retains a controlling interest in the consolidated or merged entity, and will
promptly notify the City of any changes to the existence or form of the entity or any
change in the control of the Developer.
7. Other than sales and assignments contemplated by this Agreement, the Developer
shall not sell, lease, transfer or otherwise dispose of all or substantially all its assets
without adequate consideration and will otherwise take no action which shall have
the effect, singularly or in the aggregate, of rendering the Developer unable to
continue to observe and perform the covenants, agreements, and conditions hereof
and the performance of all other obligations required by this Agreement.
8. Except for the removal of any structures, plants, items or other things from the
Project Site necessary for construction of the Project to commence and continue, the
Developer shall not permit, commit, or suffer any waste or impairment of the Project
or the Project Site prior to the Completion Date.
9. Provided all conditions precedent thereto have been satisfied or waived as provided
herein, the Developer shall acquire the Controlled Property as provided in Article 5
hereof and shall pay the Purchase Price, as the case may be, when due and payable
as provided therein.
10. Provided all conditions precedent thereto have been satisfied or waived as provided
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herein, the Developer shall design, construct and complete the Project such that it is
substantially complete as provided in this Agreement no later than the deadline for
such completion as provided in this Agreement.
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:
1. The City is a validly existing body corporate and politic of the State of Florida, has all
requisite corporate power and authority to carry on its business as now conducted
and to perform its obligations hereunder and under each document or instrument
contemplated by this Agreement to which it is or will be a party.
2. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or required by
this Agreement to which the City is or will be a party have been duly authorized by all
necessary action on the part of, and have been or will be duly executed and
delivered by, the City, and neither the execution and delivery thereof, nor compliance
with the terms and provisions thereof or hereof (i) requires the approval and consent
of any other party, except such as have been duly obtained or as are specifically
noted herein, (ii) contravenes any existing law, judgment, governmental rule,
regulation or order applicable to or binding on the City, (iii) contravenes or results in
any breach of, or default under or, other than as contemplated by this Agreement,
results in the creation of any lien or encumbrance upon any property of the City
under any indenture, mortgage, deed of trust, bank loan or credit agreement,
applicable ordinances, resolutions or, on the date of this Agreement, any other
agreement or instrument to which the City is a party, specifically including any
covenants of any bonds, notes, or other forms of indebtedness of the City
outstanding on the Effective Date.
3. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or required by
this Agreement to which the City is or will be a party constitute, or when entered into
will constitute, legal, valid and binding obligations of the City enforceable against the
City in accordance with the terms thereof, except as such enforceability may be
limited by public policy or applicable bankruptcy, insolvency or similar laws from time
to time in effect which affect creditors' rights generally and subject to usual equitable
principles in the event that equitable remedies are involved.
10,02. Covenants. The City covenants with the Developer that until the earlier of the Termination
Date or the Expiration Date:
1. The City shall timely perform, or cause to be performed, all of the obligations
contained herein which are the responsibility of the City to perform.
2. During each year that this Agreement and the obligations of the City under this
Agreement shall be in effect, the City shall cause to be executed and to continue to
be in effect those instruments, documents, certificates, permits, licenses and
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approvals, and shall cause to occur those events contemplated by this Agreement
that are applicable to and are the responsibility of the City.
3. The City shall assist and cooperate with the Developer to accomplish the
development of the Project in accordance with this Agreement and the Plans and
Specifications, will carry out its duties and responsibilities contemplated by this
Agreement, and will not violate any laws, ordinances, rules, regulations, orders,
contracts, or agreements that are or will be applicable thereto, and, to the extent
permitted by law, the City will not enact or adopt or urge or encourage the adoption
of any ordinances, resolutions, rules, regulations or orders or approve or enter into
any contracts or agreements, including issuing any bonds, notes, or other forms of
indebtedness, that will result in any provision of this Agreement to be in violation
thereof.
4. Except for the demolition of existing structures on the Project Site and the removal of
objects from the Project Site as contemplated by this Agreement, the City shall not
permit, commit, or suffer any waste or impairment to the Project Site, nor shall the
City request or recommend any rezoning of the Project Site, or any part thereof,
which will prevent or adversely affect the development of the Project.
5. The City shall maintain its financial capability to carry out its responsibilities as
contemplated by this Agreement and shall notify the Developer of any event,
condition, occurrence, or change in its financial condition which adversely affects, or
with the passage of time is likely to adversely affect, the City's financial capability to
carry out its responsibilities contemplated hereby.
ARTICLE 11. CONDITIONS PRECEDENT,
11.01. The Developer Acquiring Project Site, Unless this Agreement has been terminated
pursuant to Article 12 hereof, the obligation of the Developer to acquire the Project Site is
subject to the fulfillment to the satisfaction of, or waiver in writing by, the Developer of each
of the following conditions precedent:
1. The Developer shall have received evidence satisfactory to the Developerthat the
Project Site permits the uses contemplated in this Agreement.
2. The Plans and Specifications as are required for issuance of the Building Permit
required to commence construction of the Project shall have been approved by the
City in accordance with applicable ordinances, land use regulations, building codes
and other regulations of the City.
3. The Developer shall have obtained commitments from the Project Construction
Lender as provided in Article 6 hereof.
4. The City shall have closed and vacated any streets, alleys or other public rights-of-
way as may be necessary for the construction and use of the Project Site according
to the Plan and Specifications, this Agreement and approved by resolution the
abandonment of all such rights-of-way in favor of the Developer.
5. All Permits necessary for construction of the Project to commence shall have been
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issued and have become final and non-appealable.
11.02, Construction of Project. Subject to termination of this Agreement pursuant to Article 12,
the obligation of the Developer to commence construction of the Project on the
Commencement Date is subject to the fulfillment to the satisfaction of, or waiver in writing
by, the Developer of the following conditions:
1. The Plans and Specifications that are necessary to commence construction shall
have been approved by the City, and the initial Building Permit for the
commencement of construction of that part of the Project and all other Permits
necessary for construction to commence have been issued.
2. The vacation of rights-of-way as provided in Section 5.03.1. hereof.
11.03. Responsibilities of the Parties for Conditions Precedent. The parties hereto shall not,
individually or collectively, knowingly, intentionally or negligently prevent any condition
precedent from occurring; provided, however, nothing in this Section is intended or shall be
deemed to deny any party the right to reasonably exercise its discretion to the extent
permitted by law or this Agreement.
ARTICLE 12, DEFAULT; TERMINATION.
12.01. Project Default by the Developer,
1. There shall be an "event of default" by the Developer pertaining to the entire Project
upon the occurrence of anyone or more of the following:
a. The Developer shall fail to perform or comply with any material provision of
this Agreement applicable to it within the time prescribed therefor, after
receipt of a notice from the City pursuant to Paragraph 12.01.2.a.; or
b. The Developer shall make a general assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its debts as they become
due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or
insolvent, or shall file a petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation or shall file an answer admitting,
or shall fail reasonably to contest, the material allegations of a petition filed
against it in any such proceeding, orshall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of the Developer or any
material part of such entity's properties; or
c. Within sixty (60) days after the commencement of any proceeding by or
against the Developer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation, such proceeding shall not have
been dismissed or otherwise terminated, or if, within sixty (60) days after the
appointment without the consent or acquiescence of the Developer of any
trustee, receiver or liquidator of any of such entities or of any material part of
any of such entity's properties, such appointment shall not have been
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2.
vacated; or
a.
If an event of default by the Developer described in subsection 1 above shall
occur, the City shall provide written notice thereof to the Developer, and, if
such event of default shall not be cured by the Developer within thirty (30)
days after receipt of the written notice from the City specifying in reasonable
detail the event of default by the Developer, or if such event of default is of
such nature that it cannot be completely cured within such time period, then if
the Developer shall not have commenced to cure such default within such
thirty (30) day period and shall not diligently prosecute such cure to
completion within such reasonable longer period of time as may be
necessary (provided, however, if the Developer is proceeding diligently and
in good faith, the curative period shall be extended for a period of not
exceeding six (6) months without any approval or consent of the City being
required, but such approval will be required if the curative period is to be
extended beyond six (6) months then, in addition to any remedy available
under Section 12.05, the City may terminate this Agreement or pursue any
and all legal or equitable remedies to which the City is entitled, provided,
however, if the Developer shall fail to cure such event of default within said
thirty (30) day or longer period or ceases to proceed diligently to timely cure
such event of default, then the City may proceed to enforce other available
remedies without providing any additional notice to the Developer.
b. Any attempt by the City to pursue any of the above referenced remedies will
not be deemed an exclusive election of remedy or waiver of the City's right to
pursue any other remedy to which either may be entitled.
c. Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if
such event affects the Developer's or City's ability to perform by such
deadline or the expiration of such period.
3. Subject to the rights of the Project Lender, if the City elects to cure a default under
Subsection 12.01.1. by the Developer, construction contracts, contract documents,
building permits, development permits, management agreements, and financial
commitments (all only to the extent assignable) with respect to the Project shall, if
such default has not been previously cured, on the day following receipt by the
Developer of notice from the City of its election to cure, be deemed then assigned to
the City making said election, without necessity of any other action being taken or
not taken by any party hereto. The Developer shall transfer and deliver to the City
upon making said election, all assignable Plans and Specifications, working
drawings, construction contracts, contract documents, financial commitments,
management agreements, and all Permits, and, at the direction of the City, the
defaulting the Developer shall vacate the Parcel(s).
4. Notwithstanding any provision of this Section, a default by the Developer shall not
affect the title of any condominium unit or common area conveyed by the Developer
to an unrelated third party or to a condominium association which is not controlled by
the Developer.
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12.02. Default by the City.
1. Provided the Developer is not then in default under Section 12.01, there shall be an
"event of default" by the City under this Agreement in the event the City shall fail to
perform or comply with any material provision of this Agreement applicable to it;
provided, however, that suspension of or delay in performance by the City during any
period in which the Developer is in default of this Agreement as provided in Section
12.01 hereof will not constitute an event of default by the City under this Subsection
12.02.
2.
a.
If an event of default by the City described in Subsection 12.02.1. shall occur,
the Developer shall provide written notice thereof to the City, and, after
expiration of the curative period described in paragraph b. below, may
terminate this Agreement, institute an action to compel specific performance
of the terms hereof by the City or pursue any and all legal or equitable
remedies to which the Developer is entitled; provided, however, if the event
of default by the City occurs, any monetary recovery by the Developer in any
such action shall be limited to bona fide third-party out of-pocket costs and
expenses, including reasonable attorneys' fees, incurred by the Developer in
connection with this Agreement and the transactions contemplated hereby,
unless any such default by the City was willful and committed in bad faith
with reckless disregard for the rights of the Developer.
b. The Developer may not terminate this Agreement or institute an action
described in Subsection 2.a. 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 oftime, 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 cure such event of default, then the Developer may
proceed with its available remedies without providing any additional notice to
the City.
c. Any attempt by the Developer to pursue any of the remedies referred to in
paragraphs a. and b. above will not be deemed an exclusive election of
remedy or waiver of the Developer's right to pursue any other remedy to
which it might be entitled.
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d. Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if
such event affects the Developer's or City's ability to perform by such
deadline or the expiration of such period.
12.03. Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to the
contrary, the specified rights and remedies to which either the City or the Developer are
entitled under this Agreement are not exclusive and are intended to be in addition to any
other remedies or means of redress to which the City or the Developer may lawfully be
entitled and are not specifically prohibited by this Agreement. The suspension of, or delay
in, the performance of its obligations by the Developer while the City shall at such time be in
default of their obligations hereunder shall not be deemed to be an "event of default." The
suspension of, or delay in, the performance of the obligations by the City while the
Developer shall at such time be in default of its obligations hereunder shall not be deemed to
be an "event of default" by the City.
12.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of the City
or the Developer to promptly or continually insist upon strict performance of any term,
covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other
agreement, instrument or document of whatever form or nature contemplated hereby shall
not be deemed a waiver of any right or remedy that the City or the Developer may have, and
shall not be deemed a waiver of a subsequent default or nonperformance of such term,
covenant, condition or provision.
12.05. Termination Prior to Commencement of Project.
1. The Developer and the City acknowledge and agree that as of the Effective Date
certain matters mutually agreed by the parties hereto to be essential to the
successful development of the Project have not been satisfied or are subject to
certain conditions, legal requirements or approvals beyond the control of any of the
parties hereto or which cannot be definitely resolved under this Agreement,
including, but not limited to, failure of a governmental authority to grant an approval
required for development of the Project or insurable title to the Project Site has not
been obtained. In recognition of these events or conditions, the parties hereto
mutually agree that, provided the appropriate or responsible party therefor diligently
and in good faith seeks to the fullest extent of its capabilities to cause such event or
condition to occur or be satisfied, the failure of the events or conditions listed in
subsection 2. below to occur or be satisfied shall not constitute an event of default by
any party under this Article 12, but may, upon the election of any party hereto, be the
basis for a termination of this Agreement in accordance with this Section.
2. In addition to any other rights of termination provided elsewhere in this Agreement,
prior to commencement of the Project, this Agreement may be terminated as
provided in Subsection 3. of this section by the City or the Developer after the
occurrence of any ofthe following events or conditions (except for Subsection b. , in
which event only the Developer may terminate this Agreement pursuant to this
subsection 2.):
a. The appropriate governmental authority (including the City in exercise of its
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governmental and regulatory authority and responsibility), upon petition by
the Developer denies or fails to: issue the necessary order or other action
necessary, vacate right-of-way as described in Section 5.03, issue the
Permits, issue the Building Permits, or approve any other land use necessary
to commence construction of the Project on the Project Site, provided the
Developer has proceeded diligently, expeditiously and in good faith to obtain
such approval, permits or other necessary actions;
b. A previously unknown site condition is subsequently discovered and that
condition prevents successful development of the Project, or part of the
Project on the Project Site, or part of the Project Site (in which case only the
Developer at his option can terminate the Project as not feasible).
3. Upon the occurrence of an event described in subsection 2. or in the event that the
Developer or the City, after diligently and in good faith to the fullest extent its
capabilities, is unable to cause a condition precedent to its respective obligations to
occur or be satisfied, 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.
4. In the event of a termination pursuant to this Section 12.05, neither the Developer
nor the City shall be obligated or liable one to the other in any way, financially or
otherwise, for any claim or matter arising from or as a result of this Agreement or any
actions taken by the Developer and the City, or any of them, hereunder or
contemplated hereby, and each party shall be responsible for its own costs,
however, the provisions of Sections 9.01 and 10.01 shall apply and shall survive
termination of this Agreement, the provisions of this Subsection 12.05.4 to the
contrary notwithstanding.
12.06. Termination Certificate.
1. In the event of a termination of this Agreement for any reason prior to the Expiration
Date, each of the parties hereto do covenant and agree with each other to promptly
execute a certificate prepared by the party electing to terminate this Agreement,
which certificate shall expressly state that this Agreement has been terminated in
accordance with its terms, is no longer of any force and effect except for those
provisions hereof which expressly survive termination, that the rights, duties and
obligations of the parties hereto have been terminated and released (subject to
those surviving provisions hereof) and that the Project Site is no longer subject to
any restrictions, limitations or encumbrances imposed by this Agreement.
2. The certificate described in Subsection 1. shall be prepared in a form suitable for
recording and promptly after execution by all of the parties hereto shall be recorded
in the public records of Pinellas County, Florida.
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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
13.01 is subject to the following:
1. Such proceeding shall suspend the execution or enforcement of such charge,
payment or requirement;
2. Such proceeding will not create any risk of impairment of the acquisition or
preparation of the Project Site, the construction, completion, operation or use of the
Project, the Project Site, or any part thereof, in any material respect, and neither the
Project or Project Site, nor any part of the Project or the Project Site, would be
subject to any risk of being involuntarily sold, forfeited or lost or the acquisition of the
Project Site or the construction, equipping, or completion of the Project or any part
thereof be delayed or prohibited;
3. Such proceeding will not subject any other party to criminal liability or risk of material
civil liability for failure to comply therewith, or involve risk of any material claim
against such party; and
4. The party seeking the benefit of this Article shall have furnished to the other parties
such security, if any, as may be required in such proceeding or as may be
reasonably requested by the others, to protect the Project and the Project Site, and
any part thereof, and any interest of such parties hereunder.
ARTICLE 14. ARBITRATION
14.01. Agreement to Arbitrate. Only as specifically provided in this Agreement and only if any
judicial or administrative action or proceeding has not been commenced with regard to the
same matter and, if so, the party hereto commencing such action has not dismissed it, any
disagreement or dispute between the parties may be arbitrated in the manner set forth in this
Article 14. All parties hereby agree such arbitration, once commenced, shall be the
exclusive procedure for resolving such disagreement or dispute and agree to be bound by
the result of any such arbitration proceeding unless all parties mutually agree to terminate
such proceeding prior to decision. If any arbitration proceeding under this part adversely
affects the performance of any party hereunder, then any time periods provided herein for
such performance by that party shall be tolled during the pendency of the arbitration
proceeding affecting such performance.
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14.02. Appointment of Arbitrators.
1.
2.
a.
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 following the
expiration of the time period for such dispute resolution process or upon
occurrence of the event permitting arbitration to be invoked, give written
notice to that effect to the other parties, and shall in such notice appoint a
disinterested person who is on the list of qualified arbitrators maintained by
the American Arbitration Association or a disinterested person not on such
list to whom an objection is not made by any other party hereto within five (5)
days of receipt of the notice of such appointment as the arbitrator or, if more
than one (1) arbitrator is to be appointed, as one of the arbitrators.
b. Within ten (10) days after receipt of the notice described in paragraph (1), the
other parties shall by written notice to the original party acknowledge that
arbitration has been invoked as permitted by this Agreement, and shall either
accept and approve the appointment of such individual set forth in the
original notice as a sole arbitrator or shall appoint one (1) disinterested
person per party of recognized competence in such field as an arbitrator.
a.
If two (2) arbitrators are appointed pursuant to subsection a. above, the
arbitrators thus appointed shall appoint a third disinterested person who is on
the list of qualified arbitrators maintained by the American Arbitration
Association, and such three (3) arbitrators shall as promptly as possible
determine such matter.
b. If the second arbitrator shall not have been appointed as provided in
subsection a., the first arbitrator shall, after ten (10) days notice to the
parties, proceed to determine such matter.
c. If the two (2) arbitrators appointed by the parties pursuant to subsection a.
shall be unable to agree within fifteen (15) days after the appointment of the
second arbitrator upon the appointment of a third arbitrator, they shall give
written notice of such failure to agree to the parties, and, if the parties then
fail to agree upon the selection of such third arbitrator within fifteen (15) days
thereafter, then within ten (10) days thereafter each of the parties upon
written notice to the other parties hereto may request the appointment of a
third arbitrator by the office in or for the State of Florida (or if more than one
office, the office located closest to the City) of the American Arbitration
Association (or any successor organization thereto), or, in its absence,
refusal, failure or inability to act, request such appointment of such arbitrator
by the United States District Court for the Middle District of Florida (which
request shall be filed in the division of that court responsible for the
geographic area including the City), or as otherwise provided in Chapter 682,
Florida Statutes, known and referred to as the Florida Arbitration Act, as
amended.
14.03. General Procedures. In any arbitration proceeding underthis part, those parties appointing
arbitrators shall each be fully entitled to present evidence and argument to the sole arbitrator
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or panel of arbitrators. The arbitrator or panel of arbitrators shall only interpret and apply the
terms of this Agreement and may not change any such terms, or deprive any party to this
Agreement of any right or remedy expressed or implied in this Agreement, or award any
damages or other compensation to any party hereto. The arbitration proceedings shall
follow the rules and procedures of the American Arbitration Association (or any successor
organization thereto) unless specifically modified by this Agreement, or as then agreed to by
the parties hereto.
14.04. Majority Rule. In any arbitration proceeding under this part, the determination of the
majority of the panel of arbitrators, or of the sole arbitrator if only one (1) arbitrator is used,
shall be conclusive upon the parties and judgment upon the same may be entered in any
court having jurisdiction thereof. The arbitrator or panel of arbitrators shall give written
notice to the parties stating his or their determination within thirty (30) days after the
conclusion of the hearing or final submission of all evidence or argument.
14.05. Replacement of Arbitrator. In the event of the failure, refusal or inability of any arbitrator to
serve as such, promptly upon such determination being made by the affected arbitrator, the
affected arbitrator shall give notice to the other two (2) arbitrators (if applicable) and to the
parties hereto, and then a new arbitrator shall be promptly appointed as a replacement,
which appointment shall be made by the party or the arbitrators who appointed the affected
arbitrator in the same manner as provided for in the original appointment of the affected
arbitrator in Section 14.02 hereof.
14.06. Decision of Arbitrators.
1. If any decision reached by arbitration as provided in this part requires performance
by the Developer, the Developer covenants and agrees to comply with any decision
of the arbitrator(s) promptly after the date of receipt by the Developer of such
decision, and to continue such performance to completion with due diligence and in
good faith.
2. If any such decision requires performance by the City, the City covenants and agrees
to comply promptly with any decision reached by arbitrators) promptly after the date
of receipt by the City of such decision, and to continue such performance to
completion with due diligence and in good faith.
3. Nothing in this part, nor in any arbitration decision rendered under this part, shall be
construed to require any payment by the City to the Developer not otherwise
provided for herein.
14.07. Expense of Arbitration. The expenses of any arbitration proceeding pursuant to this part
shall be borne equally by the parties to such proceeding, provided, however, for the purpose
of this Section 14.07, "expenses" shall include the fees and expenses of the arbitrators and
the American Arbitration Association with respect to such proceeding, but shall not include
attorneys' fees or expert witness fees, or any costs incurred by attorneys or expert
witnesses, unless (and to the extent) agreed to by the parties to such proceeding, which in
the absence of such Agreement shall be the responsibility of the party incurring such fees or
costs.
14.08. Accelerated Arbitration.
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1.
a.
If any of the parties to any arbitration proceeding under this part determines
the matter for arbitration should be decided on an expedited basis, then after
an initial election to invoke arbitration pursuant to Section 14.02 hereof has
been made, either party to such proceeding may invoke accelerated
arbitration by giving notice thereof to the other parties no later than three (3)
days after arbitration has been initially invoked and the other parties do not
object within three (3) days thereafter.
b. Accelerated arbitration, for purposes of this Section 14.08, shall be
accomplished by either party notifying the American Arbitration Association
(or any successor organization thereto) that the parties have agreed to a
single arbitrator, qualified to decide the matter for arbitration, to be appointed
by the American Arbitration Association (or any successor organization
thereto) with the consent of the parties to such proceeding within three (3)
days after receipt of the request and to decide such matter within five (5)
days after such appointment.
c. If an arbitrator is not so appointed with consent of the parties to the
proceeding within three (3) days after the notice referred to in paragraph (2)
is received by the American Arbitration Association, the accelerated
proceeding under this Section 14.08 shall terminate and the procedures
otherwise set forth in this Article 14 shall apply, unless the parties mutually
agree to an extension of such time period.
2. The Developer and the City hereby agree to use such accelerated procedure only
when reasonably necessary, to not contest the appointment of the arbitrator or his or
her decision except as may be permitted by law, and that all other provisions of this
part, except as are in conflict with this Section 14.08, remain in effect and applicable
to an accelerated arbitration proceeding.
14.09. Applicable Law. To the extent not inconsistent with this article, any arbitration proceeding
under this article shall be governed by the provisions of Chapter 682, Florida Statutes, as
amended, known and referred to as the Florida Arbitration Code.
14.10. Arbitration Proceedings and Records. Any arbitration hearing under this article shall be
considered a meeting subject to Section 286.011, Florida Statutes, and shall be open to any
member of the public. Unless otherwise rendered confidential pursuant to or by the
operation of any applicable law or order (other than an order by a sole arbitrator or panel of
arbitrators acting under this part), the record of such proceedings shall be a public record
under Chapter 119, Florida Statutes.
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ARTICLE 15. UNAVOIDABLE DELAY.
15.01. Unavoidable Delay.
1. Any delay in performance of or inability to perform any obligation under this
Agreement (other than an obligation to pay money) due to any event or condition
described in paragraph (b) as an event of "Unavoidable Delay" shall be excused in
the manner provided in this Section 15.01.
2. "Unavoidable Delay" means any of the following events or conditions or any
combination thereof: acts of God, litigation which has the effect of precluding
reasonable satisfaction of the obligations of this Agreement, acts of the public
enemy, riot, insurrection, war, pestilence, archaeological excavations required by
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).
3. An application by any party hereto (referred to in this Subsection 3. and in
Subsection 4. as the "Applicant") for an extension of time pursuant to this subsection
must be in writing, must set forth in detail the reasons and causes of delay, and
must be filed with the other party to this Agreement within seven (7) days following
the occurrence of the event or condition causing the Unavoidable Delay or seven (7)
days following the Applicant becoming aware (or with the exercise of reasonable
diligence should have become aware) of such occurrence.
4. The Applicant shall be entitled to an extension of time for an Unavoidable Delay only
for the number of days of delay due solely to the occurrence of the event or condition
causing such Unavoidable Delay and only to the extent that any such occurrence
actually delays that party from proceeding with its rights, duties and obligations under
this Agreement affected by such occurrence.
ARTICLE 16. RESTRICTIONS ON USE.
16.01. Project. Prior to the earlier of the Termination Date or the Expiration Date, no use of the
Project, other than as described in Section 2.03, shall be permitted, other than the operation
of improvements existing on the Effective Date until those improvements are demolished,
unless and until the Developer or the person, if other than the Developer, intending to so use
the Project or Project Site, shall file with the City a request for a release from the restriction
imposed by this Section. The Governing Body of the City shall promptly consider such
request and either deny the request, approve the request as filed, or approve the request
subject to such terms, conditions and limitations as the City may reasonably require. Unless
specifically requested and approved, a release of the restriction imposed by this Section
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shall not release the Developer from any obligations or restrictions imposed by this
Agreement or any agreement, instrument or document contemplated hereby.
ARTICLE 17. FIRE OR OTHER CASUAL TV; CONDEMNATION.
17.01. Loss or Damage to Project.
1. Until the Project Completion Date, and without regard to the extent or availability of
any insurance proceeds, the Developer covenants and agrees to diligently
commence and complete the reconstruction or repair of any loss or damage caused
by fire or other casualty or by eminent domain (provided the City is not the
condemning authority) to each and every part of the Project on a Parcel which it
owns to substantially the same size, floor area, cubic content and general
appearance as existed prior to the occurrence of such loss or damage, promptly
after the City approves the Plans and Specifications for such reconstruction or
repairs.
2. The City shall review the Plans and Specifications for such reconstruction or repairs
as soon as possible after filing thereof by the Developer. The City agrees to approve
the Plans and Specifications for such reconstruction or repairs if the reconstruction
or repairs contemplated by such Plans and Specifications will restore the Project, or
the damaged portion thereof, to substantially the same condition as existed prior to
the occurrence of such loss or damage and if such Plans and Specifications conform
to the applicable laws, ordinances, codes, and regulations in effect at the time of
filing with the City of the plans and specifications for such reconstruction or repairs.
17.02. Partial Loss or Damage to Project. Until the Project Completion Date, any loss or damage
by fire or other casualty or exercise of eminent domain to the Project or Project Site, or any
portion thereof, which does not render the Project or Project Site unusable for the use
contemplated by Section 2.03 of this Agreement, shall not operate to terminate this
Agreement or to relieve or discharge the Developer from the timely performance and
fulfillment of the Developer's obligations pursuant to this Agreement, subject to an extension
of time for an Unavoidable Delay.
17.03. Project Insurance Proceeds.
1. Whenever the Project, or any part thereof, shall have been damaged or destroyed,
the Developer shall promptly make proof of loss and shall proceed promptly to
collect, or cause to be collected, all valid claims which may have arisen against
insurers or others based upon such damage or destruction.
2. Subject to the rights of a Project Lender, the Developer agrees that all proceeds of
property or casualty insurance received by the Developer as a result of such loss or
damage shall be available and shall be used for payment of the costs of the
reconstruction or repair of the Project to the extent necessary to repair or reconstruct
the Project.
17.04. Notice of Loss or Damage to Project. The Developer shall promptly give the City written
notice of any significant damage or destruction to the Project stating the date on which such
damage or destruction occurred, the expectations of the Developer as to the effect of such
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damage or destruction on the use of the Project, and the proposed schedule, if any, for
repair or reconstruction of the Project.
17.05. Condemnation of Project or Project Site; Application of Proceeds. In the event that
part, but not all, of the Project or Project Site, or both, shall be taken by the exercise of the
power of eminent domain at any time before the Expiration Date, subject to the rights of a
Project Lender, the compensation awarded to and received by the Developer shall be
applied first to the restoration of the Project, provided the Project can be restored and be
commercially feasible for its intended use as contemplated by Section 2.03.1. of this
Agreement after the taking, and, if not, can be retained by the Developer.
ARTICLE 18. MISCELLANEOUS
18.01. Assignments.
1. Bv the Developer.
a. Prior to the Commencement Date, the Developer may sell, convey, assign or
otherwise dispose of any or all of its right, title, interest and obligations in and
to the Project, or any part thereof, only with the prior written consent of the
City, provided that such party (hereinafter referred to as the "assignee"), to
the extent of the sale, conveyance, assignment or other disposition by the
Developer to the assignee, shall be bound by the terms of this Agreement
the same as the Developer for such part of the Project as is subject to such
sale, conveyance, assignment or other disposition.
b. If the assignee of the Developer's right, title, interest and obligations in and to
the Project, or any part thereof assumes all of the Developer's obligations
hereunder for the Project, or that part subject to such sale, conveyance,
assignment or other disposition, then the Developer shall be released from
all such obligations hereunder which have been so assumed by the
assignee, and the City agrees to execute an instrument evidencing such
release, which shall be in recordable form.
c. An assignment of the Project, or any part thereof, by the Developer to any
corporation, limited partnership, limited liability company, general partnership,
or joint venture, in which the Developer (or an entity under common control
with Developer) has either the controlling interest or through a joint venture
or other arrangement shares equal management rights and maintains such
controlling interest or equal management rights shall not be deemed an
assignment or transfer subject to any restriction on or approvals of
assignments or transfers imposed by this Section 18.01, provided, however,
that notice of such assignment shall be given by the Developer to the City not
less than thirty (30) days prior to such assignment being effective and the
assignee shall be bound by the terms of this Agreement to the same extent
as would the Developer in the absence of such assignment.
d. No assignee, purchaser, sublessee or acquire of all or any part of the
Developer's rights and obligations with respect to anyone Parcel shall in any
way be obligated or responsible for any of the Developer's obligations with
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respect to any other Parcel by virtue of this Agreement unless and until such
assignee, purchaser, sublessee or acquire has expressly assumed the
Developer's such other obligations.
18.02. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of
the City, and its successors and assigns, and the Developer and its successors and assigns,
except as may otherwise be specifically provided herein.
18.03. Notices.
1. All notices, demands, requests for approvals or other communications given by
either party to another shall be in writing, and shall be sent by registered or certified
mail, postage prepaid, 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:
CBR Development I, LLC and
CBR Development II, LLC
2201 - 4th Street North, Suite 200
St. Petersburg, FL 33704
Attn: J. Michael Cheezem
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
with copies to:
with copies to:
ED. (Ed) Armstrong, III
P.O. Box 1368
Clearwater, FL 33757
Pam Akin, Esquire
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
and
Greene & Schermer
1301 - 6th Avenue West
Suite 400
Bradenton, FL 34205
Attn: Robert F. Greene, Esquire
2. Notices given by courier service or by hand delivery shall be effective upon delivery
and notices given by mail shall be effective upon receipt. Refusal by any person to
accept delivery of any notice delivered to the office at the address indicated above
(or as it may be changed) shall be deemed to have been an effective delivery as
provided in this Section 18.03. The addresses to which notices are to be sent may
be changed from time to time by written notice delivered to the other parties and
such notices shall be effective upon receipt. Until notice of change of address is
received as to any particular party hereto, all other parties may rely upon the last
address given.
18.04. Applicable Law and Construction. The laws of the State of Florida shall govern the
validity, performance and enforcement of this Agreement. This Agreement has been
negotiated by the City and the Developer and the Agreement, including, without limitation,
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the Exhibits, shall not be deemed to have been prepared by the City or the Developer, but by
all equally.
18.05. Venue; Submission to Jurisdiction.
1. For purposes of any suit action, or other proceeding arising out of or relating to this
Agreement, the parties hereto do acknowledge, consent, and agree that venue
thereof is Pinellas County, Florida.
2. Each party to this Agreement hereby submits to the jurisdiction of the State of
Florida, Pinellas County and the courts thereof and to the jurisdiction of the United
States District Court for the Middle District of Florida, for the purposes of any suit,
action, or other proceeding arising out of or relating to this Agreement and hereby
agrees not to assert by way of a motion as a defense or otherwise that such action is
brought in an inconvenient forum or that the venue of such action is improper or that
the subject matter thereof may not be enforced in or by such courts.
3. If at any time during the term of this Agreement the Developer is not a resident of the
State of Florida or has no officer, employee, agent or member thereof available for
service of process in 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 member available for service of process in the State of Florida,
the Developer hereby designates the Secretary of State, State of Florida, its agent
for the service of process in any court action between it and the City, or both, arising
out of or relating to this Agreement and such service shall be made as provided by
the laws of the State of Florida for service upon a non-resident; provided, however,
that at the time of service on the Florida Secretary of State, a copy of such service
shall be delivered to the Developer at the address for notices as provided in 18.03.
18.06. Estoppel Certificates. The Developer and the City shall at any time and from time to time,
upon not less than ten (10) days prior notice by another party hereto, execute, acknowledge
and deliver to the other parties a statement in recordable form certifying that this Agreement
has not been modified and is in full force and effect (or if there have been modifications that
the said Agreement as modified is in full force and effect and setting forth a notation of such
modifications), and that to the knowledge of such party, neither it nor any other party is then
in default hereof (or if another party is then in default hereof, stating the nature and details of
such default), it being intended that any such statement delivered pursuant to this Section
18.06 may be relied upon by any prospective purchaser, mortgagee, successor, assignee of
any mortgage or assignee of the respective interest in the Project, if any, of any party made
in accordance with the provisions of this Agreement.
18.07. Complete Agreement; Amendments.
1. This Agreement, and all the terms and provisions contained herein, including without
limitation the Exhibits hereto, constitute the full and complete agreement between
the parties hereto to the date hereof, and supersedes and controls over any and all
prior agreements, understandings, representations, correspondence and statements,
whether written or oral.
2. Any provision of this Agreement shall be read and applied in para materia with all
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other provisions hereof.
3. This Agreement cannot be changed or revised except by written amendment signed
by all parties hereto.
18.08. Captions. The article and section headings and captions of this Agreement and the table of
contents preceding this Agreement are for convenience and reference only and in no way
define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way
affect this Agreement or construe any article, section, subsection, paragraph or provision
hereof.
18.09. Holidays. It is hereby agreed and declared that whenever a notice or performance under
the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal
holiday observed in the City, it shall be postponed to the next following business day.
18.10. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this
Agreement. The Exhibits and any amendments or revisions thereto, even if not physically
attached hereto shall be treated as if they are part of this Agreement.
18.11. No Brokers. The City and the Developer hereby represent, agree and acknowledge that no
real estate broker or other person is entitled to claim or to be paid a commission as a result
of the execution and delivery of this Agreement, including any of the Exhibits.
18.12. Not an Agent of City. During the term of this Agreement, the Developer hereunder shall not
be an agent of the City with respect to any and all services to be performed by the Developer
(and any of its agents, assigns, or successors) with respect to the Project.
18.13. Recording of Development Agreement. Pursuant to ~163.3239, Florida Statutes (2004),
the City authorizes and hereby directs the City Clerk to record this Agreement in the public
records of Pinellas County, Florida, within fourteen (14) days after City Council approval of
this Agreement. The Developer shall pay the cost of such recording. A copy of the recorded
development agreement shall be submitted to the state land planning agency within fourteen
(14) days after the agreement is recorded.
18.14. Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills
and is pursuant to and for a public purpose and municipal purpose and is in the public
interest, and is a proper exercise of the City's power and authority.
18.15. 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.
18.16. Other Requirements of State Law. Nothing in this Agreement shall be deemed to relieve
either party from full compliance with any provision of State law which is applicable to any of
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the obligations or undertakings provided for in this Agreement. In the event that this
Agreement omits an obligation to comply with any provision of State law in regard to any of
the obligations or undertakings provided for in this Agreement, it is the intention of the
parties that such applicable State law shall be deemed incorporated into this Agreement and
made a part thereof. In the event that there is any conflict between the provisions of this
Agreement and applicable State law, it is the intention of the parties that the Agreement shall
be construed to incorporate such provisions of State law and that such provisions shall
control.
18.17. Technical Amendments; Survey Corrections. In the event that due to minor inaccuracies
contained herein or any Exhibit attached hereto or any other agreement contemplated
hereby, or due to changes resulting from technical matters arising during the term of this
Agreement, the parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change the substance of
this Agreement may be made and incorporated herein. The City Manager is authorized to
approve such technical amendments on behalf of the City, respectively, and is authorized to
execute any required instruments, to make and incorporate such amendment to this
Agreement or any Exhibit attached hereto or any other agreement contemplated hereby.
18.18. Term; Expiration; Certificate.
1. If not earlier terminated as provided in Section 12.05, this Agreement shall expire
and no longer be of any force and effect on the tenth anniversary of the Effective
Date.
2. Upon completion of the term of this Agreement, all parties hereto shall execute the
Agreement Expiration Certificate. The Agreement Expiration Certificate shall
constitute (and it shall be so provided in the certificate) a conclusive determination of
satisfactory completion of all obligations hereunder and the expiration of this
Agreement.
3. In the event of any dispute as to whether any party is required to execute the
Agreement Expiration Certificate, the dispute shall be resolved by arbitration as
provided in Article 14.
4. The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records of Pinellas County, Florida. Following execution by all
of the parties hereto, the Agreement Expiration Certificate shall promptly be recorded
by the Developer in the public records of Pinellas County, Florida and the Developer
shall pay the cost of such recording.
18.19. Approvals Not Unreasonably Withheld. The parties hereto represent that it is their
respective intent as of the Effective Date and do covenant and agree in the future that all
approvals, consents, and reviews will be undertaken and completed as expeditiously as
possible, in good faith, and will not be arbitrarily or unreasonably withheld, unless otherwise
expressly authorized by the terms of this Agreement.
18.20 Severability. If any term, provision or condition contained in this Agreement shall, to any
extent, be held invalid or unenforceable, the remainder of this Agreement, or the application
of such term, provision or condition to persons or circumstances other than those in respect
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of which it is invalid or unenforceable, shall not be affected thereby, and each term, provision
and condition of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
18.21. Effective Date. As provided by 9163.3239, Florida Statutes (2004), this agreement will
become effective after being recorded in the public records in the county and 30 days after
having been received by the state land planning agency.
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IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals
affixed as of this _ day of , 2005.
THE CITY OF CLEARWATER, FLORIDA
Attest:
By:
By:
Mayor
City Clerk
Approved as to form and correctness:
, Esquire
City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
2005, by and , Mayor and City Clerk,
respectively, for the City of Clearwater, Florida, on behalf of the City, who is 0 personally known to
me or 0 has produced a Florida driver's license or 0 as
identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
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STATE OF FLORIDA
COUNTY OF PINELLAS
CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
The foregoing instrument was acknowledged before me this _ day of ,
2005, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
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NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
\\CityLaw\Cycom\Wpdocs\0019\I'001 \00003854.00C
CBR DEVELOPMENT II, LLC,
a Florida limited liability company
By: CBR Communities II, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater VI, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
2005, J. Michael Cheezem, as CEO of JMC Communities of Clearwater VI, Inc., a Florida
corporation, the General Partner of CBR Communities II, Ltd., a Florida limited partnership, the
Managing Member of CBR Development II, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 43
ADOPTED
IICitylawlCycomlWpdocs\Oo191P001 \Ooo03854.DOC
EXHIBIT A
Development Agreement
Page 44
ADOPTED
IICityLawlCycomlWpdocslDo191Poo 1 100003854.DOC
EXHIBIT A
Legal Description of Controlled Property
SOUTH BLOCK
Lots 1 - 13 and 49 - 56, Clearwater Beach Park, as per plat thereof recorded in Plat Book 10, Page
42, of the Public Records of Pinellas County, Florida.
Lots 43 through 48, Lots 65 through 71, and the South 14.75 feet of Lot 64, CLEARWATER BEACH
PARK, as recorded in Plat Book 10, Page 42, of the Public Records of Pinellas County, Florida.
NORTH BLOCK
PARCEL 1 :
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES,
TO THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH
LINE OF BAYMONT STREET, AS SAID BAYMONT STREET IS SHOWN ON SAID RE-
SUBDIVISION OF BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALAY
ROAD, AND RUN THESE N 20045'00" E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEETTO
THE CENTERLINE OF AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED
AS A PUBLIC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 11, PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE WEST ALONG THE CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE
OR LESS, TO THE WATER OF THE GULF OF MEXICO; THENCE IN A SOUTHERLY
DIRECTION ON A MEANDERING LINE ALONG THE WATERS OF THE GULF OF MEXICO,
321.00 FEET, MORE OR LESS, TO THE CENTERLINE OF SAID BAYMONT STREET; THENCE
EAST 385.00 FEET, MORE OR LESS, ALONG SAID CENTERLINE OF BAYMONT STREET TO A
POINT 40.00 FEET SOUTH OF THE POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO
THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLAT, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLAT, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
Development Agreement
Page 45
ADOPTED
IICitylaw\CycomlWpdocs\Oo191P001\Ooo03854.DOC
EXHIBIT B
Development Agreement
Page 46
ADOPTED
IICilylawlCycomlWpdocslDo 191Pool 100003854 .DOC
EXHIBIT B
Project Description
Developer proposes to redevelop the Project Site with a resort development to include related
amenities, pedestrian walkways, streets, parking and infrastructure improvements. The Project shall
include a nine-story resort hotel with not less than 240 rooms and not more than 260 rooms (the
Hotel Phase); a fifteen-story condominium (the Residential Tower Phase) and a four-story
condominium and not more than 11,000 square feet of on-grade retail (the Residential/Retail
Phase).
The Hotel Phase will include approximately 50 for sale condominium-hotel suites located on the top
two floors, which are included in the overall hotel room count as described above. The Hotel Phase
will also include a minimum of 10,000 sf of meeting space, a minimum of 11 ,000 sf for Spa, Health
Club, and Beach Club, a full-service restaurant, lounge, two swimming pools, a kids wading pool,
pool grill, and other amenities associated with a beachfront resort. The building height for the Hotel
Phase will not exceed 100 feet.
The Residential Tower Phase includes one fifteen-story building with a height not to exceed 150
feet.
The Residential/Retail Phase includes one four-story building with a height not to exceed 50 feet.
The retail will be located on the ground level ofthe four-story building. The Residential/Retail Phase
will not exceed 11,000 sf of retail space, not more than 3,000 sf of which may be restaurant.
The Residential Tower Phase and Residential/Retail Phase shall collectively have no more than 120
dwelling units.
As provided for in this Agreement, Developer, and/or its affiliates, will carry out the redevelopment of
the Project Site by purchasing all of the land within the Project Site, 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 developing the Project
as a unified and integrated project.
Development Agreement
Page 47
ADOPTED
IICityLawlCycom1Wpdoco\Oo191P001100003854.DOC
EXHIBIT B-1
Development Agreement
Page 48
ADOPTED
IICityLaw\CycomlWpdocslDo191Poo 1 100OO3854.DOC
EXHIBIT B-1
MINIMUM QUALITY STANDARDS
The Development Agreement ("Agreement") between the City of Clearwater, Florida (the "City") and
CBR Development I, LLC ("Developer") provides for the allocation of one hundred and forty-one
(141) resort hotel units from the Beach by Design density pool ("Density pool") to the site on which
the Developer anticipates building the project described in the Agreement (the "Project Site"), which
project is to contain, among other things, a minimum of 240 hotel units within a quality resort hotel
(the "Hotel"). Beach by Design establishes physical, functional and operational requirements for a
proposed development to be eligible for an allocation of resort units from the Density pool. The
allocation of the resort hotel units to the Project Site represents a significant economic incentive for
the development of the Hotel.
The purpose of this Exhibit is to establish:
1) minimum quality standards for the proposed Hotel;
2) a process for assessing compliance with the minimum quality standards; and
3) an enforcement mechanism in the event that the Developer shall fail to comply with the
minimum quality standards.
MINIMUM QUALITY STANDARDS
The City and the Developer agree that there are two (2) alternative ways in which the Developer
may satisfy the quality requirements of Beach by Design (the "Minimum Quality Standards"):
1) Membership in (a) the AAA and obtaining and maintaining a minimum quality rating of at
least four (4) diamonds; or (b) Mobile Travel Guide ("MTG") and obtaining and
maintaining a minimum quality rating of at least four (4) stars; or (c) such other travel
marketing and rating service as the City reasonably approves ("Other Rating Service")
and obtaining a quality rating comparable to the AAA and MTG ratings described in (a)
and (b) of this subparagraph;
-or-
2) Membership in (a) the AAA and obtaining and maintaining a minimum quality rating of at
least three (3) diamonds; or (b) membership in MTG and obtaining and maintaining a
minimum quality rating of at least three (3) stars, and in addition to (a) and (b), inclusion
in the Hotel upgraded improvements and facilities as described hereinafter.
The City agrees that the Developer would satisfy the upgraded improvements and facilities
requirement by providing twenty-five percent (25%) of the total number of AAA four (4) diamond
quality criteria for: i) exterior, ii) public areas; iii) guestrooms; iv) guestroom amenities; and v)
bathroom as described in AAA, Lodging Requirements & Diamond Rating Guidelines (the most
current edition as of the date of issuance of the building permit for the Hotel).
Alternatively, the City agrees that the Developer may satisfy the upgraded improvements and
facilities requirement by substantial compliance with attached schedule of "Upgrade Hotel Criteria".
Development Agreement
Page 49
ADOPTED
IICityLaW\Cycom1Wpdocs1Do191P001100003854.DOC
COMPLIANCE ASSESSMENT
Initial rating period
As soon as is reasonably possible after a final Certificate of Occupancy for the Hotel is
issued by the City ("CO"), the Developer shall apply for membership and inspection by AAA, MTG or
Other Rating Service (the "Hotel Rating Service"), such that an inspection by the Hotel Rating
Service would be reasonably expected to occur within twelve (12) months following the issuance of
the CO ("Initial Inspection Period"). Upon receipt of the report issued by the Hotel Rating Service
("Rating Service Quality Report"), the Developer shall immediately deliver a copy of the rating report
to the City.
In the event that the Hotel Rating Service does not or is unable to inspect the Hotel within the
Initial Inspection Period, Developer shall use reasonable diligence to obtain an independent quality
assessment of the Hotel from a qualified hotel/resort industry expert ("Independent Quality
Assessment") within ninety (90) days after the issuance of the CO. In the event the Developer fails
to deliver a qualified Rating Service Quality Report or a qualified Independent Quality Assessment to
the City within ninety (90) days after the first anniversary of the CO, the City may at the Developer's
expense, obtain a written opinion of an independent expert in the hotel/resort industry with regard to
the compliance of the Hotel with the Minimum Quality Standards established in this Exhibit.
Maintenance and Monitoring of Compliance with Minimum Quality Standards:
1. The Developer shall maintain compliance with the Minimum Quality Standards for a period of
ten (10) years commencing upon issuance of the CO.
2. In the event that the initial rating of the Hotel equals four (4) diamonds, four (4) stars or the
equivalent with an Other Rating Service or better, maintenance of such rating shall constitute full
compliance with the Minimum Quality Standards.
3. In the event that the initial rating of the Hotel equals three (3) diamonds, three (3) stars or the
equivalent with an Other Rating Service, and the Developer has included in the Hotel the required
upgraded improvements and facilities as described above, the maintenance of such rating shall
constitute compliance with the Minimum Quality Standards. On the fifth anniversary of the issuance
of the CO, if the most recent Rating Service Quality Service Quality Report does not address
compliance with the upgraded improvements and facilities requirement established in this Exhibit
(the "Upgrade Requirement"), the Developer shall obtain a written opinion from a qualified
hotellresort industry expert that the Hotel continues to meet the Upgrade Requirement. If the
Developer fails to deliver a qualified opinion of compliance with the Upgrade Requirement, the City
may at the Developer's cost, obtain a written opinion of an independent expert in the hotel/resort
industry with regard to the compliance of the Hotel with the Upgrade Requirement.
FAILURE TO COMPLY
In the event that a Rating Service Quality Report, an Independent Quality Assessment or the
opinion of an independent expert in hotellresort industry reveals that the Hotel does not comply or
no longer complies with the Minimum Quality Standards established in this Exhibit or the Developer
fails to provide the City with a Rating Service Quality Report or an Independent Quality Assessment
or expert opinion, or the Hotel Rating Service that previously rating the Hotel has given notice stating
that such service has downgraded the Hotel's rated to a lower rating level ( " Rating Downgrade
Development Agreement
Page 50
ADOPTED
IICityLawlCycomlWpdocslDo 19IPo01 100003854.DOC
Notice"), the City shall notify Developer of default in a writing which details identifying the nature of
the default(s) ("City Quality Default Notice").
If the default(s) described in the City Quality Default Notice are based upon a Rating
Downgrade Notice, Developer shall have that period of time given to Developer by the downgrading
hotel rating service to dispute or effectuate any cure required to restore the Hotel to the Minimum
Quality Standard and to present to the City reasonable evidence that Developer has either prevailed
in its dispute of the default(s) or has effectuated a cure of the conditions upon which the default is
based.
If the City Quality Default Notice is based on any basis provided for in this Exhibit other than
a Rating Downgrade Notice, Developer shall have ten (10) days to notify the City as to whether the
Developer intends to dispute the Default Notice. If the Developer does not notify the City within ten
(10) days of its intent to dispute the Default Notice, the Developer shall have thirty (30) days to cure
the default, or in the event that this is not reasonable possible to cure the default within thirty (30)
days, the Developer shall submit a sworn statement describing the steps necessary to cure the
default and to the time period necessary to cure the default and the Developer shall cure the default
within the stated period. In the event that the Developer disputes the Default Notice, the dispute
shall be resolved through expedited arbitration pursuant to the Agreement and in the event that the
Developer's dispute is resolved in the favor of the City, the Developer shall then cure the default
within thirty (30) days after resolution of the dispute or such longer period as may reasonably be
required as provided above.
In the event that a City Quality Default Notice was based on a failure to maintain compliance
with the Upgrade Requirement, the Developer shall obtain a written opinion from a qualified
hotel/resort industry expert that the Hotel continued to meet the Upgrade Requirement every two (2)
years after the default is cured until the expiration or termination date of the Agreement.
Notwithstanding anything contained in this Agreement to the contrary, it shall not be
considered a default under this Agreement if the Developer must make modifications or take actions
to restore the Hotel to the Minimum Quality Standard where such modifications or action to be taken
requires the alteration of structural or architectural design elements of the Project which were
approved by the City in connection with the construction of the Project or where the cost of such
modifications or actions, including any debt service incurred by the Developer in connection
therewith, cannot be recovered over the useful life of the item to be modified, as reasonably
determined by the City and the Developer.
REMEDIES UPON EVENT OF DEFAULT
Upon the occurrence of an Event of Default which is not cured within the applicable grace or
cure period, Developer shall be subject to a daily fine equal to Two Thousand and Five Hundred
Dollars ($2,500.00) payable to the City for each day that the defaults enumerated within the City
Quality Default Notice at issue remain uncured provided, however, that the maximum fine shall not
exceed One Million Dollars ($1,000,000).
In the event that an Event of Default occurs, the accumulated fines shall be a lien against the
Hotel component of the Developer's Property, which may, at the City's sole discretion, be enforced
through a foreclosure proceeding.
Development Agreement
Page 51
ADOPTED
IICitylawlCycomlWpdoco\Oo191P001 \Ooo03854.DOC
UPGRADE HOTEL CRITERIA SCHEDULE
I. EXTERIOR
Curb Appeal: The combination of all exterior elements provides an impressive well-integrated and
excellent level of curb appeal. Excellent variety of landscaping professionally planned and
manicured. Impressive architectural features well-integrated into the surrounding area. Exterior
lighting to enhance landscaping and building architectural features.
Parking: Lighting fixtures reflect characteristics of the design of the property, physical evidence of
added security exists; excellent overall illumination.
II. PUBLIC AREAS
Furnishings and Decor. Upscale, well-appointed, and in the theme of the property; high degree of
comfort, featuring professionally fitted coverings, and abundant variety of live plants or unique dried
floral arrangements.
Floor Coverings: Excellent quality carpet, wood, marble, or granite floors with unique area rugs.
Illumination: Light fixtures are well-appointed and of an upscale design that complements the
overall theme of the property; multi-placement provides overall excellent illumination.
Signage: Design is well-defined in harmony with the theme of the property.
Lobby/Registration Area: Spacious registration area; upgraded luggage carts; recognizable
guest-service and bellstand.
Miscellaneous: Multiple recessed phones with notepads and pens, located away from traffic areas.
Pressing is available at specific times.
Restaurant and Dining Facilities: Upscale, full-service restaurant; separate lounge or bar area.
Recreational Facilities: Swimming pool area is well-appointed with upscale design elements and
an excellent quality and variety of pool furniture and hot tub. Food and beverage is available
poolside. On-site exercise facility with state of the art equipment; lockers and dressing area
provided.
Meeting Rooms: Variety of well-appointed meeting rooms with upscale design elements.
Audiovisual equipment available.
Restrooms: Upscale facilities appropriate for the number of meeting rooms.
Additional Recreational Facilities: Excellent variety of additional offsite recreational activities is
available on site or arrangements are made for off-site services.
Sundries and Other Shops: Upscale gift shop.
Development Agreement
Page 52
ADOPTED
IICilylaw\CycomlWpdocslD0191Po01 100003854 .DOC
III. GUESTROOMS
Free Floor Space: Well-proportioned rooms with comfortable seating area with obvious degree of
spaciousness allowing increased ease of movement for guests.
Floor Coverings: Excellent quality carpet, wood, marble, granite or other high-end stone floors.
Clothes Hanging Space: Fully enclosed hanging space with at least eight open-hook wood
hangers.
Clothes Storage Space: Sufficient space for two pieces of luggage; upgraded racks or benches.
Furniture: Excellent quality furnishings, veneer finish with solid wood insets.
Heating/Air Conditioning: Central system with room thermostat control.
Illumination: Excellent overall illumination provided; freestanding fixtures in appropriate places.
Television Placement: Television located in closed armoire or flat screen monitor.
Balconies: Over 75% of rooms with balcony.
IV. GUESTROOM AMENITIES
Multiple or cordless telephones. High-speed Internet access. Easily accessible data ports. Desk.
Enhanced guest-service directory in folder. Upgraded stationary. Framed or beveled full-length
mirror. Full-size iron and ironing board. Mini-Bar or refrigerator. DVD players or premium movie
channels, oversized television with remote control. Clock radio.
V. GUEST BATHROOMS
Countertops: Excellent quality utilizing granite, corian or marble with ample surface area.
Wall and Floor Coverings: Excellent quality, including ceramic tile, marble or granite flooring.
Free Floor Space: Excellent size bathrooms affording guests increased ease of movement and
comfort.
Amenities: Excellent quality plush towels, oversized. Facial tissues of excellent quality in
decorative container. Freestanding hair dryer. Bathroom area rug. Make-up mirror.
VII. SERVICE
Room service available 16 hours per day. Valet parking is available. Baggage assistance is
automatic. Concierge service available. Morning newspaper delivered to room door. All associates
are appropriately attired with fine uniforms and nameplates. Same day cleaning and pressing
available 5 days a week.
Development Agreement
Page 53
ADOPTED
IICitylaw\CycomlWpdoco\Oo191P001 \Ooo03854.DOC
EXHIBIT B-2
Development Agreement
Page 54
ADOPTED
IICilyLaw\CycomlWpdocslD0191Pool 100003854 .DOC
tion
J:\5J\Propolo\DW9S\LS\5J_997-250-LS2.dw9 - Sop 16, 2004 II J: J9pm - mbcoch
THIS IS NQI A SURVEY
~~~R~E M#Ju~~ ~D~J~O~~~&ESR~~g~hosN~tF:~~ T~~<;IN~H~~ PROPERTY THA T
6~ISA lfl~t~ ~~t?t.r.TlON AND SKETCH WAS PREPARED WITHOUT THE BENEfiT
BEARINGS ARE BASED UPON, SEE SKETCH AND LEGAL DESCRIPTION
LEGAL DESCRIPTION:
A parcel af land being a portion of 5.ctJ.onl 5 and 8. Township 29 South. Rang. 15 Ealt. Pln.Hal .Count)'.
Florida, b.~ng ~r._l!a_r_t_~~_u_fa~lr de.crib.d a. 'allow.:
COMMENCE al I~. S.ut~..II c.rn.r ., Trocl A, "A RE-SUB OF BLOCKS 10-11 AND LOTS Z TO 15 INCL. BLOCK 9 Of THE
REVISED MAP OF CLEARWATER BEACH". .. recordld In Pial Book 19. pogo 96 01 Ih. Public R.cord. 01 PI.."a.
Count,. Flortda: th'.ne. N21-371::S4-E. olong tti. Eo.t line a. taid Tract A. lam. being the W..t Rlght-af-Way
'In. .1 Mandaloy Av.nu.. according 10 laid "A RE-SUB OF BLOCKS 10-1 I AND LOTS Z TO 15 INCL. BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH-, (being the balll of bearings, 'or this delerlpllon) far 182.33 i..ti thence
conllnu. alang IQid Elut J In. of Tract A. 101M be'ng said W..t Rlght-af-Way Iln. ot Ma"dalay Avenu..
NOZ-4I'34"E, lar 1/0.50 le.' 10 Ih. point or 1.lortocllon wll~ lho Soul~ Rlg~'-o'-Wa, IIn. 01 Ambler SIr..I.
o~cQrdlng 10 -MllLER1S'REPLAT.. 01 recorded In Plat Booh 26. pog. 17 of th. Public Records 01 Plnellos Count,.
Florida: thence Nego06'59.W. along tald South RIlj1bt-ot-Wa, line of Ambl... Stra.t. 'or 160.00 f..t 'a 'he pain'
of intar..ctian with 'h. Southarly ..'e"llan a' 't.. Ea.t Ifn. a' Lot 9. .ald -MILLER'S REPLAT-: 'hence
N02-41134-E. aton9 laid SQu'h.rl~ o.t.nlion a. 'he Eaat Ifne of La' 9. and laid E..t I;n. 0' La' 9.
r...p.ctiv.',. far fOO.05 f..t fa the poinf a. int.r..ction wi'h the North lin. 0' 'hI South 80.00 t..t D" .alcf
LoI 9: Ih.nco N890Q6'5lJ'W, alo.g laid Norlh II.. 0' lho Soulh 60.00 "., 01 L.I 9. lor 60.00 ...1 '0 I~. polnl
at In'.rseetlon with 'h. W.s' Iln. 0' laid Lot 9: 'hence N02-41'34-E. along laid W..t line of La' 9. '0'6.96
t.et .. the Nor'h...t corn.r o' .aid lol 9: thence H8g.06159-W. olop, the North Iln. of Lot 10.. laid -MILLER1S
REPLAT... the North line of Lot I. .ald -MILLER'S REPLAY-. and Itu W..t.tly ext.n.ion 01 said North Iln. of Lol
I. ,..pect.v.',. lor 389.38, '0 THE POINT OF BEGINNING; Ihence con'tinua along .old W..t.rt, .xt.nllon of laid
North l'in. of Lot I. S89.Q6IS9-E. far 182.03 f..t Ih. ,oint a. In'.r'octlolt with .leyatlon 0.62 '..t. North
Am.rican V.rtlcal Datum of 1988 CNAVO,198BI. . om. beln, the point 0' .int.r.ectlon wilh th. M.an High Water
L'Ae at the Gulf at MI.'eD o. reeord.d with the Oeportmant af Environmental Prot.ctlon Mean Hrgh Wat.r Surv.,
flf. numb.r 3429: thine. the 10llDwlng "'no (9) coy,... alang .aid "lva'lon 0.62 f..t. North American
V.r1I.o' Dalum 01 1968 (NAVD 19B8). .om. b.lng IOld Moo. Hlg~ Watlr Li.. 01 lho Gull 01 MOIl..: II) Ih....
504-59'06-W. 'Dr 40.89 ...t: (2) th.nc. $05-4315O.W. 'Dr .51.84 f..f: (3) 'hen'. SOS.S2'49.W, ..r ~1.04 r..t:
141 I~..c. SOS035'4'"W, lor 49.79 ,..1, 151 I~..c.. S07"36'31'W. lar 47.28 10.1, IGI tho.... S060Il'33'W. lor
49.96 '.et: (7) th.nc. S09-0213S-W. 10, 51.54 '..et: (8) thence SOS-S3'20.W.. tat 49.11 ...t; (9) Ihenc.
SOS-23'5S-W. far 42.99 '.at to th. polnl a. In'.r..ctlon with the We,..,I, ealan.lon a. tha c.nl.,'ln. 0"'
BOlmonl Str..I, a.cordl.g 10 .old "A RE-SUB OF BLOCKS 10-11 AND LOTS 2 TO IS INCL. BLOCK 9 OF THE REVISED ~P
OF CLEARWATER BEACH-; 'hence leaving .1.vo'lon 0.62 te.t. North Alnerlcan Vertlca' Datum oJ 1988 (NAVe 1988).
Seg-26'04aE.. along laid W..t.rly .xten.ion 01 'he cent.rlln. of Baymont Str..t and ,aid cent.rlln. a' Baymant
Str..t. r...,.cllve',. far l04.02 fe.t: th.nce N03-4Z'16-E leDving aaid W.,t.rl, ..'.n..on o' 'h. cen,."lnl 01
Baymonl Slr..t and lOid conlorlln. 01 Bo,mo.I Slr..I, rllp..'iv..,. lor 431.54 I..t 10 THE POINT OF
BEGINNING.
Conloinlng 82.466 _quor. f..1 or 1.893 acr.,. more or I.".
Er,or o. cloaur.: 0.0108 r..t (MJE)
SEE SHEET I FOR LEGIIl. DESCR I PTI ON
SEE SHEET 2 FOR SKETCH
NOTE: THIS LEGAL DESCRIPTION AND SkETCH WAS PflEPAltED WITH THE 8DlUIT OF THAT tERTAIN BOUHOART SURVEY TlTl.ED 'BOUNOARY SURVERT AND Io'EAN
HIGH WATER L'NE SURVEy", PREPARED BY FLORIDA D(SICH CONSULTANTS. ItIC.. JOB Nl.MElER "97-Z~O. THE: GC<M;1RY PERTA'NI.... TO THE PARCEL OF
~~~OlsB;~:~[~~$~':~A=~~EC~L~=~~OLn., BASta WON nIE GECIoETR"f AS DESCRIBED OH THE RECORDED ooeLKNTS AS NOTED HERE,IN
PREP ARE!) FOR:
JMC
COMMUNITIES
SHEET DESCRlPlION: CLEARWATER BEACH WEST PARCEL
SCALE: OA.m DRAwN, CALCED: CHECkED:
NONE .09116/04 GEH 5MB 5MB
JOB No.: EPN: SEClION: ro_P: RANCE::
997-250 53 5 8 a 29 S 15 E
~ FLORIDA DESIGN CONSULTANTS, INC"
ENGINEERS, ENVIRONMENTALISTS
11 . . SURVEYORS 8 PLANNERS
New p;~3~lc~~~:kf{0~~:d.34655
(727) 649-75B6
Certificate of Authorizotion: LB 6707
Stat8 of Florida
@COD"T'Icht 2004 f1or!da DeslQn ConsuJtants. Inc. Orowanos and conceals may not be used or reproduced Without written permiSSion. Sheet L of 2'
NOT VALID WITHOUT THE SIGNATURE
AND THE ORIGI~AL RAISED SEA:" OF A FLORIDA
LICENSED SURVEYOR AND MAPPER.
~el4~J?a
PROFESSIONAL SURVEYOR AND MAPPER
LICENSE NUMBER LS 6261
Development Agreement
Page 54
ADOPTED
F:~mc\hunter\C~y Development Agt.14,w~h e>d1SJdoc
J: \5J\Propala\Dwg.\LS\5J_997-250-LS2.dwg - Sep 16, 2004 iii J: 22pm - 90ill
lHlS IS HQI A SURVEY
THERE MAY BE ADDITIONAL RESTRICTIONS AFFECTING THIS PROPERTY THAT
A Y BE FOUND IN THE PUBLIC RECORDS OF THIS COUNTY.
HIS LEGAL DESCRIPTION AND SKETCH WAS PREPARED WITHOUT THE BENEFIT
F A TITLE POLICY.
EARINGS ARE BASED UPON, SEE SKETCH AND LEGAL OESCRIPTlON
WESTERLY EXTENSION Of
lHE N UNE Of" LOT 1
('oj
..J
N89'06'59"W
182.03'
:1 10.00' PEOESlIllAN EASEIoIENT
-[--~~~~~~~::_:~---
O/J'l ...,.
..J
<:">0
N~B It]
4.. f3 ~ ..J
o fE...
W-o:
!:3 ~~ <0
-.J
.::l:::>
"Ill
-1---------------------
,...
-.J
TOTAL AREA=
82.464 SQ IT
OR 1.89 AC, MOL
~
~~
. It]
N .
;ot";;:;
800t-
:;::
10
-.J
Ol
...
25.00' EASEIoIENT FOR STREET
rpURPOSES PER DB 1550. PG 529
_-1_____~________________
S89"26'04"E
204.02'
WESlERL Y EXTENSION OF' 1HE
CENTERUNE BAYMONT ST
SEE SHEET I FOR LEGAL OESCR I PTI ON
SEE SHEET 2 FOR SKETCH
PREPARED FOR:
N UNE OF LOT ,.
I I LOn
NB9"06'59"W
JB9.JB'
N UNE Of lOT 10
...~.._-----_....._.....,-_... . ..... -........--.-..---.--..
NW COR lOT 9
LOT 4 N UNE Of 1HE S
80 FEET OF' LOT 9
I
I
I
I
I
LOT 1
S R/W AlIBlER ST
N89"Q6.59"W
150.00'
I
I
I
I
I
l
I
rWEST UNE TRACT A
TRACT A
A RE -suo or BLOCKS
10-11 AND LOlS 2 TO
15 INCt... BLOCK 9 OF
THE RE'OlSED NAP or
CLEARWATER BEACH
PB 19. PG 96
I"
~g
:;d
",-
e-
2
CIlECKEO:
5MB
RANCE:
15 E
~ FLORIDA DESIGN CONSULTANTS, INC.
ENGINEERS. ENVIRONMENTALISTS
11 SURVEYORS 8 PLANNERS
3030 Slor.oy Blvd.
New Pori Richey. Florida 3465:>
(727) 849-7S88
Certificat8 of Authorization: LB 6707
state of Florida
LINE TABLE
BEARING
N02'41 '34'
S04"59'06"W
SOS'43'50"W
505"52' 49"W
S05'35' 41"W
507' S'3'"W
. "w
50'0' "W
SOS"5l'20"W
S08'2l.56"W
LENGTH
5.96'
40.89'
51.8 "
51.04'
49.79"
47.211'
9.9 .
51.54'
4911'
4 .9
!J .... i'
g~~"'f:"f:
ISJl..t
C'l#jll
~ "''1~J1I
t! .s~~S
~ '1:'"
~
LINE
L1
12
L3
L4
L5
L5
L7
L8
L9
110
LEWlll;
POC ~ POINT or Cot.It.lENCEMENT
POB - POINT OF BEGINNING
SEC - SEcnON
COR - CORNER
R/W - RK~iT Of" WAY
ST - SlREET
SQ - SQUARE
FT - FEET
AC - ACRES
MOl - MOIRE DR LESS
PG = PACE
PB - PLAT BOOK
DB - OEED BOOK
ORB - OFfICIAL RECORDS BOOK
NOTE, lHIS LEGAl.. DESCRIPTION AND SKETCH WAS PREPARED WllH lHE BENEFIT OF THAT CERTAIN BOUNDARY SURVEY TITLED 'BOUNOARY SUAVERY AND Io€AH
HICH WATER LIHE Sl.llVEY', PREPARED 9Y FLORIDA OESI~ CONSUL1ANTS. INC.. J09 Nl.MlER 997-250. nE GEOMETRY PER1A'NING TO THE PARCEL OF
LAND BEING DESCRIBED HEREIH (THE DESCRIPTIONI IS SOLELY 9ASEO UPOH THE GECMETRY AS DESCRIBED ON THE RECOROEO DCClHiNTS AS NOTED HEREIN
.AND IS S JE'CT TO AN ACCURATE F"IElD 9OUNDA~Y SlIR"EY.
JMC COMMUNITIES
SHEET DESCRIPTION:
SCALC: DAlE:. DRA\\tl:
I" = 100' 09116/04 GEH
CLEARWATER BEACH WEST PARCEL
JOB No.: EPII:
997-250 53
SECTION:
588
CALCEO:
5MB
TO\\WSHIP:
29 S
NOT VALID WITHOUT THE SIGNATURE
AND THE ORIGINAL RAISED SEAL OF A FLORIDA
S;;QE~~~::APER'
SAMUEL MARK BEACH
PROFESSIONAL SURVEYOR AND MAPPER
LICENSE NUMBER LS 6261
QCopw-laht 2004 FloridD Desion Consullants. Inc. Drowinas and conceDts mov not be used or reoroduced without written permission.
Development Agreement
Page 55
ADOPTED
F:\imc~unter\City Development Agt.14.with exhs.doc
EXHIBIT B-2
Beach Property Description
Development Agreement
Page 55
ADOPTED
IICitylaw\Cycom1Wpdocs\O0191P001100003854.DOC
EXHIBIT B-3
Development Agreement
Page 56
ADOPTED
IICitylawlCycomlWpdocslD0191P001 100003854 .DOC
EXHIBIT B-3
Upland Property Description
Development Agreement
Page 57
ADOPTED
IICitylawlCycom1Wpdocs\O0191P001\O0003854.DOC
Development Agreement
Page 58
ADOPTED
\\CityLaw\Cycom\Wpdocs\D019\P001 \00003854.DOC
u
tion
J:\5J\ProPota\O....gs\lS\53-997-250-lS1.d..g - Sep 16, 2004 04:04pm - ghm
lHlS IS 1:iQI A SURVEY
THERE MAY BE ADDITIONAL RESTRICTIONS AFFECTING THIS PROPERTY THAT
MA Y BE FOUND IN THE PUBLIC RECORDS OF THIS COUNTY.
THIS LEGAL DESCRIPTION AND SKETCH WAS PREPARED WITHOUT TilE BENEFIT
OF A TITLE POLICY.
BEARINGS ARE BASED UPON, SEE SKETCH AND LEGAL DESCRIPTION
LEGAL DESCRIPTION:
A parco I of land boing a portion of Soction. 5 and 8, Tawn.hip 29 South, Range 15 East. Plnellas
County, Florida, being more particularlydeacribed as lollow.:
COMMENCE at the Southeast corner at Tracl A. "A RE-SUB OF BLOCKS 10-11 AND LOTS 2 TO 15 INCL. BLOCK
9 OF THE REVISED MAP OF CLEARWATER BEACH". os recorded in Pial Book 19, page 9S of fha Public
Record. of Pinellas County, Fiarlda; t"ence N21D37'34"E, alang tho Easl I ine at sold Tract A. .ame
being the West Right-of-Way line at Mandalay Avenue. according to said "A RE-SUB OF SLOCKS 10-1 I AND
LOTS 2 TO 15 INCL. BLOCK 9 OF THE REVISED MAP OF CLEARWATER BEACH" (BEING THE BASIS OF BEARINGS FOR
THIS DESCRIPTION). far IB2.33 feet; th.nce~N02D4I'34"E along said East line at Tract A. same being
said West Rlght-af-Way line of Mandalay Avenue. lor 110.50 t.et fo Ihe point of Intersection with
the South Right-aI-Way line of Ambler Street, according to "MILLER'S REPLAT', as recorded in Plat
Book 26, page 17 of the Publ ic Records 01 Pinellos Counly, Florido; thence N89D06'59'W, along said
South Right-of-Way line of Ambler Street. far 160.00 feet to the point of intersecllon with the
Southerly exten.ion of the East line of Lot 9. said "MILLER'S REPLAT"; thence N02D41'34'E, along
.ald Southerly extension of the East line of Lot 9, and said East line of. Lot 9, respeetively, for
100.05 reel to fhe point ot Intersection with the North line of .fhe South BO.oo leet of said Lot 9;
thence NB9DOS'S9"W, along sold North I ine at the South BO.OO feet of Lol 9. tor 60.00 teal to the
point of inter.ectian wi th the We.t line of sold Lot 9: thence N02041'34'E, along .ald Wesl line of
lot 9. far 6.96 feet to the Northwest corner of .oid Lot 9; thence N89"OS'S9'W. along the North line
of Lot 10. said 'MllLER'S REPLAT", the ~orth line of lal I. sold "MILLER'S REPLAT", and the We.lerl,
ulension of said North I ine of Lot I. respectively, far 199.15 to the POINT OF BEGINNING; thence
S03D42'16'W leaving said North line of Lot 10, sold "MILLER'S REPLAT". Ihe North line of Lot I, said
'MILLER'S REPLAT" , and the Wesler Iy ex ten.ion 01 said North I ine of Lot I, respecll vely. for 430.48
feet to the Inter.ectian of the Westerly extension 01 Ihe Centerline Bayman I Street; thence
NBgD26'04"W along said Wester Iy ulen.lan of the Cenfer line Baymonl Streel. far 190.29 teet; Ihence
N03042'IS'E leaving said Westerly utenslan of the cenferline of Boymant Street, lor 431.54 feet fo
the intersection 0./ the Wesferly extention of the centerlina af Baymonl Slreet; thence along .Clid
Wasterfy Extension of, the South I ine of the Norlh Ambler streel S8900S'59'E. for 190.23 feet to the
POINT OF BEGINNING.
Containing BI,894 square feet or 1.8BO ocres, mar. or I....
Error of closure: 0.001 teet (SMB)
SEE SHE:ET I FOIl LEGAL aEscR I PT I 0"
SEE SHEET 2 FOIl SKETCH
NOTE. THIS LEllAL DESCRIPTION ANO ""ETCH WAS PREPARED WitH THE SEHEJ'IT 01' THAT CERTAIN 8OUNOARY SURVEY TlTLEa 'ellUHOAllY .SURVEIIY AND KAIl
HICH WATER LIHE suRVEY': PREPARED ey FLORIDA DESlC" ""'SULTANTS. IHe.. Joe MMlE/l 997-250. THE CE~RY PERTAINING TO THE PARCEL OF
LANO BEING DESCRIBED HEREIN (THE DESCRIPTIONI IS SOLELy lASED Ul'0N THE CEllMETRY AS DESCRISEO ON TIlE RECORaED DDC~S AS NOTED HEREIN
AN' IS SUBJEi:T~Tn A" ACCUllAT~.I'IELD BOUNDARY S\.OlVEY.
PIlEJ'ARED FDR:
JMC
COMMUNITIES
SHEET OESCRlPnOll:
CLEARWATER BEACH EAST PARCEL
JOB No.: EPN:
997-250 53
S(cnOH:
5 B 8
CALCED:
5MB
-
29 S
CHECKED:
5MB
RANCE:
15 E
SCAlE:
NONE
DATE: ORAWN:
09/16/04 GEH
~ FLORIDA DESIGN CONSUL. TANTS, INC.
ENGINEERS. ENVIRONMENTALISTS
JU SURVEYORS a PLANNERS
3030 Slo,key Blvd.
.New Perf Richey, Fforlda 34655
(727) 849-7508
Certificate of Authorization: LB 6707
Stat8 of Florida
HOT VAliD WITHOUT THE SIGNATURE
AND THE ORIGINAL RAISED 5lAI. OF A FLORIDA
LICENSED SURVEYOR Ai'lI:' JtPPER.
~J r1b.~ M
SAMUEL MARK BEACH
PROFESSIONAL SURVEYOR AND MAPPER
LICENSE NUMBER LS 6261
@Cop)'"ight 2004 Florida Desi " Consultants. Inc. Oro""in 8 ond cone. ts mo not be used or re roduced wilhout writ en permi:ision. Sheet J of-.2.-
Development Agreement
Page 57
ADOPTED
F:~mc\hunler\City DevelopmentAgt14.with extls.doc
J; \5J\ProjDoto\Dwgs\LS\5L997-250-LSl.dwg - Sep 15. 2004 0 4;04pm - ghill
THIS IS tiQI A SURVEY
THERE MAY BE ADDITIONAL RESTRICTIONS AFFECTING THIS PROPERTY THAT
MA Y BE FOUND IN THE PU8LIC RECORDS OF THIS COUNTY.
THIS LEGAL DESCRIPTION AND SKETCH WAS PREPARED WITHOUT THE BENEFIT
OF A TITLE POLICY.
BEARINGS ARE BASED UPON, SEE SKETCH AND LEGAL DESCRIPTION
~SlERL Y ElCTENSIOH or
lHE 1'1 UNE or lOT 1
1'1 UNE OF THE S
80 FEET OF LOT 9
o 50
r--_
N
~
S89"06'S9"E
190.23'
LOT J
LOT 4
100
I
10' PEOESlRIAN EASOofENT
I PER ORB 2228. PG 719
- ----------------------
5 R/W AIoIBLER STREET
N89'06'59"W
150.00'
-~--------------------
JU
<0 -
~ ..,.
- It)
<'l .
:t";;)
8+
2:
TOTAL AREA=
81.892 SQ FT
OR 1.880 AC, MOL
~
-~ ~
<'l .
+ 0
. ,.,
8+
VI
~
I ~ST UNE TRACT A TRACT A
A RE-SUB or BLOa<S 10-11 AND LOTS
2 TO 15 1NCl.. BLOCK 9 OF' lHE
REVl5m MAP or av.RWATER BEACtl
PB 19, PO 98
W R/W UANDALAY AVE
E UNE TRACT A
I'"
~~
!ic:i
....-
0-
z
I
I
I
I
I
I POC
\\IOSlERLY EXlENSIQN or SEE SHEET I FOR LEGAL OESClIIPTION SE COR TRACT A
THE CENlERUNE BA'YMOHT ST SEE SHEET Z FOR SKETCH
NOTE. THIS LEGAL DESCRIPTl.OH AND SKETCH WAS PREPARED WITH THE BENEFIT OF THAT CERTAIN BOUNDARY SURVEY TinED "BOUNDARY SlR'IERY AND MEAN
HIGH WATER LIHE SURVEY', PREPARED 8Y FLORIDA DESIGN CONSULTANTS. INC.. JOB N\.MlER 997-ZS0. THE GEOIlETRY PERTAINING TO THE PARCEL OF
UNO BEING DESCRIBED HEREIN (THE DESCRIPTION) IS SOLELY BASED UPON THE GECM::TRY AS DESCRIBED ON THt: RECORDED DOCUMEHTS AS NOTED tiEAEIN
AND IS SUBJECT TO AN A CURATE FI BOUNDARY SURV
PREPARED FOR:
25.00' EASEt.lENT FOR STREET
r PURPOSES PER DB 15SO. PO 629
J_______________________
UNE
L1
UNE TABU:
BEARING
02'41'34"
lENGlH
6.96'
!'
""t'
..)...
.:y
~
~
~
N89'26'04"W
190.29'
JMC COMMUNITIES
SHEET OE5(;RIPnON:
CLEARWATER BEACH EAST PARCEL
SCALE: DATE: DRAWN:
I" = 100' 09116104 GEH
CALCEO:
5MB
CHECKED:
5MB
JOB No.:. EPN:
997-250 53
SEcnON:
588
TOWNSHIP:
29 S
RANGE:
15 E
~ FLORIDA DESIGN CONSUL TANTS, INC.
ENGINEERS. ENVIRONMENTALISTS
11 SURVEYORS B PLANNERS
3030 Starkey Blvd.
New Pori Ricbe)'. Florida 34655
(727) 649-7566
Certificate of Authorization: LB 6707
state of Florida
NOT VALID WITHOUT THE: SIGNATURE
AND THE OfllG!~ML RA1SE!l SEAL OF A FLORIDA
s;Q'"I't:~~K?~~'"
SM,ltIEL MARK BEACH
PROFESSIONAL SURVEYOR AND MAPPER
LICENSe: NUMBER LS 6261
@Cop)rl9ht 2004 Florida Design Consultants. Inc. Drawing, and concepts may not be used or reproduced withoul writtetl permission. Sheet _ of ~
Development Agreement
Page 58
ADOPTED
F:~mc\hunter\cny Development Agl.14.with e>d1s.doc
EXHIBIT C
Development Agreement
Page 59
ADOPTED
IICityLawlCycom1Wpdoc,ID0191P001100003854.DOC
EXHIBIT 0
Development Agreement
Page 60
ADOPTED
\\CityLaw'lCycom\Wpdocs\D019\P001 \00003854.DOC
EXHII3IT C
ProjeCt Site
! ROCKAWAY ST.
I
i
/
f
",""._"-,""~-,;",---.-----",,:-:----,,-'--,,._-....--,.,..,...-~-....-._--_..
d ~
~ BEACH
~ ~
k I
0 I
~ ~
.c
Development Agreement
Page 60
ADOPTED
I
I
i
. .--."-/-----.---------------
'f---:---;--....,..------i-.
.i
I
N.I
I
1
II
i
I
/
I
I
I
I
I
I
/
I
HOTEL PHASE
.-/
LL
~
<
.~
~
~
fwl
'-.:1
liP. .
10'
I:r:!
. u,
I~I
laJ. i I
1*1
II
RESIDEt-mAL
TO~E~ PHASE
/1
NT
,
i
I
I
i N
I ~
!
i
w
~
>-
:5
C!
~
*TO aE VACATED
F:~mc\hunter\City Development Agt.14.with ems.doc
EXHIBIT D
Project Development Schedule
Phase
Estimated
Commencement Date
Estimated
Completion Date
Residential/Retail
July 1, 2005
July 1, 2005
July 1, 2006
February 1, 2007
Hotel
Residential Tower
July 1, 2007
January 1, 2008
Developer reserves the right to change the commencement order of any phase. Estimated
commencement dates are subject to marketing conditions and permitting timelines.
Section 7.02 of the Development Agreement provides deadlines for Commencement and
Completion of each Phase of the Project as follows:
Phase Deadline for Commencement
Deadline for Completion
Hotel See definition for "Hotel
Commencement Deadline" in
Section 7.02.1.a.
Two (2) years after Commencement
Date of Hotel Phase
Residential Tower See definition for "Hotel
Commencement Deadline" in
Section 7.02.1.a.
Two (2) years after Commencement
Date of Residential Tower Phase
Residential/Retail Two (2) years after Hotel
Commencement Deadline
Eighteen (18) months after
Commencement Date of
Residential/Retail Phase
The foregoing deadlines shall be incorporated into the Development Order for the Project.
Development Agreement
Page 61
ADOPTED
IICitylaw\Cycom1Wpdocs100191P001100003854.DOC
EXHIBIT E
Development Agreement
Page 62
ADOPTED
\\CityLaw\Cycom\Wpdocs\D019\P001 \00003854 .DOC
EXHIBIT E
Covenant Regarding Trip Generation Management Program
DECLARATION OF COVENANTS AND RESTRICTIONS
TH IS DECLARATION OF COVENANTS AND RESTRICTIONS is made as of the _ day
of , 200_ by CBR Development I, LLC ("DEVELOPER").
DEVELOPER is the owner of fee simple title to all of the real property described in Exhibit 1
attached hereto and made a part hereof (hereinafter the "Real Property"). The City of Clearwater
has amended its Comprehensive Plan to designate Clearwater Beach as a Community
Redevelopment District pursuant to the Pinellas County Planning Council Rules in order to
implement the provisions of Beach by Design, a preliminary design for the revitalization of
Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District provide for
the allocation of bonus resort units as an incentive for the development of destination quality resorts
with a full complement of resort amenities. Pursuant to the designation of Clearwater Beach as a
Community Redevelopment District, the allocation of bonus resort units is subject to compliance with
a series of performance standards, including a requirement that the resort hotel to be developed on
the Real Property implements a trip generation management program to reduce the number of
vehicle trips generated by the used and operation of the Real Property.
The City of Clearwater has granted, by City Commission Resolution passed
and approved on , DEVELOPER's application for an allocation of bonus resort
units pursuant to the provisions of the designation of Clearwater Beach as a Community
Redevelopment District and subject to compliance with the requirements of the designation of
Clearwater Beach as a Community Redevelopment District. DEVELOPER desires for itself, and its
successors and assigns, as owners to establish certain rights, duties, obligations and
responsibilities with respect to the use and operation of the Real Property in accordance with the
terms and conditions of the allocation of bonus resort units to Clearwater and the designation of
Clearwater Beach as a Community Redevelopment District, which rights, duties, obligations and
responsibilities shall be binding on any and all successors and assigns and will run with the title to
the Real Property.
THEREFORE, in consideration of the covenants and restrictions herein set forth and to be
observed and performed, and in further consideration of the allocation of bonus resort units to
DEVELOPER and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, DEVELOPER hereby declares, covenants, and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for the benefit
of DEVELOPER and its successors and assigns and shall be enforceable by them
and also for the benefit of the residents of the City of Clearwater, Florida, and shall
be enforceable on behalf of the said residents exclusively by the City Commission of
the City of Clearwater.
2. Covenant to Prepare and Implement a Trip Generation Manaoement Prooram.
DEVELOPER hereby covenants and agrees to the development, use, and operation
Development Agreement
Page 63
ADOPTED
IICitylawlCycom1Wpdoco1D0191P001100003854.DOC
of the Real Property in accordance with the provisions of this Declaration.
2.1 Trip Generation Manaoement Prooram. DEVELOPER shall prepare a Trip
Generation Management Program which includes,at a minimum, the
program elements which are set out in Exhibit ~, which is attached hereto
and incorporated herein.
2.2 Implementation. DEVELOPER shall take all necessary and appropriate steps
to implement the approved Trip Generation Management Program and the
selected management strategies.
3. Effective Date. This Declaration shall become effective immediately upon its
recording.
4. Governino Law. This Declaration shall be construed in accordance with and
governed by the laws of the State of Florida.
5. Recordino. This Declaration shall be recorded in the chain of title of the Real
Property with the Clerk of the Court of Pinellas County, Florida.
6. Attornevs Fees. DEVELOPER shall reimburse the City of Clearwater for any
expenses, including attorneys' fees, which are incurred by the City of Clearwater in
the event that the City determines that it is necessary and appropriate to seek judicial
enforcement of this Declaration and the City obtains relief, whether by agreement of
the parties or through order of the Court.
7. Severabilitv. If any provision, or part hereof, of this Declaration or the application of
this Declaration to any person or circumstance will be or is declared to any extent to
be invalid or unenforceable, the remainder of this Declaration, or the application of
such provision or portion thereof to any person or circumstance, shall not be affected
thereby, and each and every other provision of this Declaration shall be valid and
enforceable to the fullest extent permitted by law.
Development Agreement
Page 64
ADOPTED
\\Cilyl.w\CycomlWpdocslDO 191POO 1 100003854 .DOC
IN WITNESS WHEREOF, CBR Development I, LLC has caused this Declaration of
Covenants and Restrictions to be executed this day of
,200 .
Signed and sealed delivered
In the presence of:
CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 65
ADOPTED
IICityLawlCycom1Wpdocs1D0191P001100003854.DOC
EXHIBIT 1
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES,
TO THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH
LINE OF BAYMONT STREET, AS SAID BAYMONT STREET IS SHOWN ON SAID RE-
SUBDIVISION OF BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALAY
ROAD, AND RUN THESE N 20045'00" E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEET TO
THE CENTERLINE OF AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED
AS A PUBLIC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 11, PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE WEST ALONG THE CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE
OR LESS, TO THE WATER OF THE GULF OF MEXICO; THENCE IN A SOUTHERLY
DIRECTION ON A MEANDERING LINE ALONG THE WATERS OF THE GULF OF MEXICO,
321.00 FEET, MORE OR LESS, TO THE CENTERLINE OF SAID BAYMONT STREET; THENCE
EAST 385.00 FEET, MORE OR LESS, ALONG SAID CENTERLINE OF BAYMONT STREET TO A
POINT 40.00 FEET SOUTH OF THE POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO
THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLAT, AS
RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
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EXHIBIT 2
TRIP GENERATION MANGEMENT PROGRAM
1. Prior to issuance of the Certificate of Occupancy for the Project, the DEVELOPER shall
implement a Transportation System Management Plan. This Plan shall establish practices,
procedures, and costs/fees for services to reduce the number of trips to and from the site.
Examples of methods, which may be considered are:
a. Guest shuttle services/airport
b. Guest shuttle services/activities
c. Employee shuttle
d. Non-motorized modes for guests
e. Fixed route transit
f. Taxis/demand responsive transit
g. Non-motorized modes for employees
h. Staggered working hours
The plan will address the trip characteristics of resort occupancy, compare and contrast the
generation and reduction methods against non transient units and create a supporting trip
utilization projection for the Beach bv Desian transit proposal from both hotel visitors and
garage patrons. The plan will apply a best methods approach. City and County
transportation programs may also generate additional methods based on special studies or
intergovernmental program funding (County-wide Gulfview Trolley System).
2. Prior to issuance of a Certificate of Occupancy for the Project, the DEVELOPER shall submit
a Hurricane Evacuation Plan to the City. This Plan shall establish practices and procedures
to be implemented when a hurricane watch is established for Clearwater. These practices
and procedures will lead to evacuation of the Project when a hurricane watch is issued for
Clearwater.
Development Agreement
Page 67
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IICitylaw\CycomlWpdoC5\O019IPOOl \O0003854.DOC
EXHIBIT F
Development Agreement
Page 68
ADOPTED
IICilyLaw1Cycom1Wpdocs1D0191P001100003854.DOC
EXHIBIT F
Covenant Regarding Hurricane Watch Closure
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS is made as of the _ day
of , 200 ,by CBR DEVELOPMENT I, LLC, a Florida limited liability company
("DEVELOPER").
DEVELOPER is the owner of fee simple title to all of the real property described in Exhibit "A"
attached hereto and made a part hereof (hereinafter the "Real Property"). The City of Clearwater has
amended its Comprehensive Plan to designate Clearwater Beach as a Community Redevelopment
District pursuant to the Pinellas County Planning Council Rules in order to implement the provisions
of Beach by Design, a preliminary design for the revitalization of Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District provides for
the allocation of bonus hotel units as an incentive for the development of destination quality resorts
with a full complement of resort amenities. Pursuant to the designation of Clearwater Beach as a
Community Redevelopment District, the allocation of bonus hotel units is subject to compliance with
a series of performance standards, including a requirement that resorts developed with bonus hotel
units pursuant to the Community Redevelopment District shall be closed and all guests evacuated
from the resort within twelve (12) hours after the National Hurricane Center posts a hurricane watch
that includes Clearwater Beach. The purpose of the evacuation of the Real Property within twelve
(12) hours of the issuance of a hurricane watch is to ensure that the Real Property is evacuated in
advance of the period of time when a hurricane evacuation would be expected in advance of the
approach of hurricane force winds.
The City of Clearwater has granted, by City Council Resolution , passed and
approved on , DEVELOPER'S application for an allocation of bonus hotel units
pursuant to the provisions of the designation of Clearwater Beach as a Community Redevelopment
District subject to compliance with the requirements of the designation of Clearwater Beach as a
Community Redevelopment District. DEVELOPER desires for itself and its successors and assigns,
as owners to establish certain rights, duties, obligations and responsibilities with respect to the use
and operation of the Real Property in accordance with the terms and conditions of the allocation of
bonus hotel units to Clearwater and the designation of Clearwater Beach as a Community
Redevelopment District, which rights, duties, obligations and responsibilities shall be binding on any
and all successors and assigns and will run with the title to the Real Property.
THEREFORE, in consideration of the covenants and restrictions herein set forth and to be
observed and performed, and in further consideration of the allocation of bonus resort units to
DEVELOPER, and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, DEVELOPER hereby declares, covenants and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for the benefit
of DEVELOPER and its successors and assigns, and shall be enforceable by it and
also for the benefit of the residents of the City of Clearwater, Florida, and shall be
enforceable on behalf of the said residents by the City Commission of the City of
Clearwater.
Development Agreement
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ADOPTED
IICitylawlCycomlWpdoco\o0191P001 \O0003854.DOC
2. Covenant of Development. Use. and Operation. DEVELOPER hereby covenants
and agrees to the development, use, and operation of the Real Property in
accordance with the provisions of this Declaration.
2.1 Use. The use of the resort on the Real Property is restricted as follows:
2.1.1 A minimum of two hundred (200) units shall be made available to
transient guests for no fewer than three hundred thirty (330) days in
any calendar year, subject to force majeure events making such
room unavailable for occupancy, must be licensed as a public
lodging establishment and classified as a hotel, and must be
operated by a single licensed operator of the hotel who shall meet
the requirements as to operating standards as set forth in Exhibit B-1
to Development Agreement between the City of Clearwater and
Developer dated , 200_.
2.1.2 All other hotel units shall be licensed as a public lodging
establishment, classified as a hotel or resort condominium with
occupancy limited to stays of thirty (30) days or less.
2.1.3 No hotel unit shall be used as a primary or permanent residence.
2.1.4 As used herein, the terms "transient occupancy," "public lodging
establishment," "hotel," "resort condominium," and "operator" shall
have the meanings given to such terms in Chapter 509, Part I,
Florida Statutes (2004).
2.2 Closure of Improvements and Evacuation. The improvements developed on
the Real Property shall be promptly closed upon the issuance of a hurricane
watch by the National Hurricane Center which hurricane watch includes
Clearwater Beach and all guests, visitors, and employees, other than
emergency and security personnel required to protect the improvements,
shall be evacuated from the Real Property within twelve (12) hours of the
issuance of said hurricane watch. In the event that the National Hurricane
Center shall modify the terminology employed to warn of the approach of
hurricane force winds, the closure and evacuation provisions of this
Declaration shall be governed by the level of warning employed by the
National hurricane Center which precedes the issuance of a forecast of
probable landfall in order to ensure that the guests, visitors, and employees
will be evacuated substantially in advance of the issuance of a forecast of
probable landfall.
3. Effective Date. This Declaration shall become effective immediately upon its
recording.
4. GoverninQ Law. This Declaration shall be construed in accordance with and
governed by the laws of the State of Florida.
5. RecordinQ. This Declaration shall be recorded in the chain of title of the Real
Development Agreement
Page 70
ADOPTED
IICityLawlCycomlWpdocslD0191P001 100003854 .DOC
Property with the Clerk of the Courts of Pinellas County, Florida.
6. Attornevs Fees. DEVELOPER shall reimburse the City of Clearwater for any
expenses, including attorneys fees, which are incurred by the City of Clearwater in
the event that the City determines that it is necessary and appropriate to seek judicial
enforcement of these Declarations and the City obtains relief, whether by agreement
of the parties or through order of the Court.
7. Severabilitv. If any provisions, or part thereof, of this Declaration orthe application of
this Declaration to any person or circumstance will be or is declared to any extent to
be invalid or unenforceable, the remainder of this Declaration, or the application of
such provision or portion thereof to any person or circumstance, shall not be affected
thereby, and each and every other provision of this Declaration shall be valid and
enforceable to the fullest extent permitted by law.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS
Development Agreement
Page 71
ADOPTED
IICitylaw\Cycom1Wpdoco\O0191P001\O0003854.DOC
IN WITNESS WHEREOF, CBR Development I, LLC, has caused this Declaration of
Covenants and Restrictions to be executed this day of , 2005.
Signed and sealed delivered
In the presence of:
CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
STATE OF FLORIDA
COUNTY OF PINELLAS
By:
Name: J. Michael Cheezem
Title: CEO
The foregoing instrument was acknowledged before me this _ day of ,
2005, by J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
Development Agreement
Page 72
ADOPTED
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
IICitylaw\CycomlWpdocslDO 191POO 1 100003854 .DOC
EXHIBIT "A"
SOUTH BLOCK
Lots 1 - 13 and 49 - 56, Clearwater Beach Park, as per plat thereof recorded in Plat Book 10, Page
42, of the Public Records of Pinellas County, Florida.
Lots 43 through 48, Lots 65 through 71, and the South 14.75 feet of Lot 64, CLEARWATER BEACH
PARK, as recorded in Plat Book 10, Page 42, of the Public Records of Pinellas County, Florida.
NORTH BLOCK
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES,
TO THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH
LINE OF BAYMONT STREET, AS SAID BAYMONT STREET IS SHOWN ON SAID RE-
SUBDIVISION OF BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALAY
ROAD, AND RUN THESE N 20045'00" E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEET TO
THE CENTERLINE OF AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED
AS A PUBLIC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 11 , PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE WEST ALONG THE CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE
OR LESS, TO THE WATER OF THE GULF OF MEXICO; THENCE IN A SOUTHERLY
DIRECTION ON A MEANDERING LINE ALONG THE WATERS OF THE GULF OF MEXICO,
321.00 FEET, MORE OR LESS, TO THE CENTERLINE OF SAID BAYMONT STREET; THENCE
EAST 385.00 FEET, MORE OR LESS, ALONG SAID CENTERLINE OF BAYMONT STREET TO A
POINT 40.00 FEET SOUTH OF THE POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO
THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLAT, AS
RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
Development Agreement
Page 73
ADOPTED
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EXHIBIT G
Development Agreement
Page 74
ADOPTED
\\Citylaw\Cycom\Wpdocs\DO 1 g\POO 1 \00003854.DOC
EXHIBIT G
List of Required Permits
The following Permits/Approvals will be required and issued for development.
Permits
· City of Clearwater - Building Permit
· City of Clearwater - Right of Way Use Permit
· FDEP - CCCL Permit
· FDEP - Sewer Permit
· FDEP - National Pollution Discharge Elimination System Permit
· Pinellas County Health Department - Water
· SWFWMD - Environmental Resource Permit
· SWFWMD, Army Corps, Fish & Wildlife - Boat Docks
Approvals
· Community Development Board - Site Plan
· Clearwater City Council - Development Agreement
· City of Clearwater Board of Adjustments - Seawall Setback Variance
· City of Clearwater Board of Adjustments - Flood Zone Improvements
· City Council - Vacation of Gulfview Boulevard
Development Agreement
Page 75
ADOPTED
IICitylawlCycom1Wpdocs\O0191P001100003854.DOC
EXHIBIT H
Development Agreement
Page 76
ADOPTED
\\Citylaw\Cycom\Wpdocs\0019\P001 \00003854 ,DOC
EXHIBIT H
Mandalay Improvements
The Mandalay Improvements include the following work to be done in the City right-of-way along
Mandalay Avenue between Saymont Street and Ambler Street:
By THE CITY OF CLEARWATER
· Effective treatment for lift station odor caused by hydrogen sulfide gases.
By THE DEVELOPER
. Realignment of the street curb as depicted on site plan attached as Exhibit H-1.
. Installation of City concrete sidewalk as depicted on attached site plan. Sidewalk finish to
have the same "shell" finish as other recently installed City sidewalks in the area. All
landscaping on the west side of Mandalay Avenue as depicted on attached site plan.
. Adjustments to street lighting or other utilities deemed necessary as a result of the above
improvements.
. Relocation of overhead utilities to underground.
. Signs, and other streetscape improvements as depicted on the attached site plan.
. Relocation of the electrical panels at the City's lift station to the location, as depicted on
Exhibit H-2, in accordance with City requirements attached as Exhibit H-3.
. Design and construct Mandalay Drainage Improvements:
stormwater outfall for Hotel Phase. Outfall to be to Clearwater Harbor
approximately 700 feet north of the centerline of Saymont Street. Drainage
from Saymont Street and the "pool area" of the Hotel Phase will drain to the
Saymont drainage system that flows easterly along Saymont to Clearwater
Harbor.
Development Agreement
Page 77
ADOPTED
IICitylaw\CycomlWpdocslD0191P001 \O0003854.DOC
EXHIBIT H-1
Development Agreement
Page 78
ADOPTED
\\Citylaw\Cycom\Wpdocs\D019\P001 \00003854.DOC
Exhibit H-l
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Development Agreement
Page 80
ADOPTED
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Development Agreement
Page 79
ADOPTED
IICilyLaw\CycomlWpdocslD0191P001 100003854 .DOC
EXHIBIT H-2
Development Agreement
Page 80
ADOPTED
\\CityLaw\Cycom\Wpdocs\D01 9\POQ 1 \00003854.DOC
EXHIBIT H.2
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LIFT STATioN IMPROVEMENTS
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Development Agreement
Page 82
ADO PTED
F:~mc\hunter\City Development Agt.14.w~h ems.doc
Development Agreement
Page 81
ADOPTED
IICitylawlCycomlWpdoca\O019\POO 1 100003854.DOC
EXHIBIT H-3
Development Agreement
Page 82
ADOPTED
\\CityLaw\Cycom\Wpdocs\DO 1 9\POO 1 \OOO03854.00C
EXHIBIT H-3
City Lift Station Requirements:
1. New electrical equipment should be provided. This will allow continued operation of the
lift station uninhibited until the new equipment is ready to be placed in service.
2. Spare conduits will be installed for use as needed by the City.
3. Easements will be granted to the City over the building room and conduit corridor.
4. All work will be approved by the City before construction. All permits must be paid for
and obtained by the Developer.
5. The electrical control room must be of sufficient size to allow future equipment
improvements and accommodate at least two electricians working in the area. The room should
either have a window or the resort understands the door will remain open when needed, so
maintenance staff has line of site view to the wet well. The room must be climate controlled.
6. Locks for the room will be City standard. The City" cannot provide City keys to private
entities.
7. An HOA (Hand, Off, Automatic) panel must be at the wet well area for control of the
station.
8. The development will provide backup generator power on the line side of the power feed
for the lift station.
9. A generator receptacle must be provided at the lift station.
10. There must be an area light to illuminate the lift station area.
11. There cannot be any overhead restrictions in the lift station area.
12. A second odor control unit is suggested to help ensure that odors do not escape the lift
station area.
13. Developer agrees that the lift station site is a valuable City asset, and maintenance must
be performed, as the City deems necessary, to ensure the proper operation. Maintenance may
include use of heavy equipment, such as a vacuum, crane, generator, etc. Developer will not
inhibit any activities the City deems necessary to ensure operation of the lift station.
NOTE: City will grant Developer impact fee credits for cost of replacement equipment provided
to City.
Development Agreement
Page 83
ADOPTED
IICItyLawlCycom1Wpdocs\O0191P001100003854.DOC
EXHIBIT I
Development Agreement
Page 84
ADOPTED
IICityLawlCycomlWpdocslDO 191POO 1 100OO3854.DOC
EXHIBIT I
Baymont Improvements
The Saymont Improvements include the following work to be done in the City right-of-way along
that portion of Saymont Street which is located to the west of Mandalay Avenue.
By THE CITY OF CLEARWATER
· None
By THE DEVELOPER
. Landscaping, and other streetscape improvements as depicted on site plan attached as
Exhibit 1-1.
. New street curbs as depicted on approved site plan, including realignment ofthe curb on the
north side of the street.
. Elimination of the five public parking spaces along the north side of the street in order to
accommodate the hotel vehicular entries as depicted on attached site plan.
. Creating a cul-de-sac at the western end of Saymont and repaving using pavers the same
as or similar to the pavers on Papaya Street and San Marco Street.
. New City concrete sidewalks as depicted on approved site plan, including the sidewalk from
the westerly end of the cul-de-sac heading west to the beach. Sidewalk finish to have the
same "shell" finish as other recently installed City sidewalks in the area, or a mutually
approved paver alternate.
. Adjustments to street lighting and/or other utilities deemed necessary as a result of the
above improvements.
. Relocation of overhead utilities to underground.
. Traffic Operations Division has determined the need for an exclusive right turn lane. The City
will allow the Project to proceed per plan; however once the Project is completed the
Developer shall conduct periodic delay studies every four months at the intersection of
Saymont Street and Mandalay Avenue for one year after the date of the Construction
Completion Certificate issued by the City. The study shall analyze the delay for each
eastbound movement and the impacts on the intersection as well as count the pedestrian
traffic on all four approaches of the intersection. The study shall be submitted to "Traffic
Operations" for review. If it is determined by "Traffic Operations" that the right turn lane is
needed then the Developer shall install the lane at its expense.
Development Agreement
Page 85
ADOPTED
IICitylawlCycomlWpdoc&\OOl9\POOl \O0003854.DOC
EXHIBIT 1-1
Development Agreement
Page 86
ADOPTED
\\CityLaw\Cycom\Wpdocs\D019\P001 \00003854 .OOC
Exhibit 1-1
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Development Agreement
Page 88
ADOPTED
F:\jmc\hunter\City Development Agt.14.with ems.doc
Development Agreement
Page 87
ADOPTED
IICitylaw\Cycom1Wpdocs1D0191P001100003854.DOC
EXHIBIT J
Development Agreement
Page 88
ADOPTED
IICityLaw\CycomIWpdocsID019IP001100003854.DOC
EXHIBIT J
Ambler Improvements
The Ambler improvements include the following work to be done in the City right-of-way along
Ambler Street:
By THE CITY OF CLEARWATER
· None
By THE DEVELOPER
. Construct certain portions of hotel above Ambler pedestrian easement while still maintaining
on-grade vehicular and pedestrian access consistent with current as-built conditions.
Vertical clearance sha.1I be a minimum of 7'6" consistent with current clearance.
. Re-grading and repaving portions of Ambler Street as deemed necessary to function
effectively with the ground level hotel design.
Development Agreement
Page 89
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IICityLaw\Cycom1Wpdoca1D0191P001100003854.DOC
EXHIBIT K
Development Agreement
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ADOPTED
\\Citylaw\Cycom\Wpdocs\D019\P001 \000038S4.DOC
EXHIBIT K
San Marco Improvements
The San Marco improvements include the following work to be done in the City right-of-way along
San Marco Street west of Mandalay Avenue.
By THE CITY OF CLEARWATER
· Reimburse Developer for the cost of design, permitting and storm sewer construction.
By THE DEVELOPER
. Install new sanitary sewer line from westernmost sanitary manhole in San Marco Street and
connect to manhole in Mandalay Avenue. New sanitary sewer line will require removal of
asphalt and pavers on the north half of San Marco.
. Design, permit and construct storm sewer outfall for Residential! Retail phase, including
drainage from San Marco. Outfall to connect to storm sewer on Mandalay Avenue.
. San Marco access to adjacent non-developer controlled properties will be maintained.
. Provide dumpster collection area and relocate sidewalk and landscaping in dumpster area
as per approved site plan.
Development Agreement
Page 91
ADOPTED
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EXHIBIT L
Development Agreement
Page 92
ADOPTED
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EXHIBIT L
Amenity Improvements
The amenity improvements as listed below are generally those improvements which will be located
seaward of the Coastal Construction Control Line (CCCL) and/or located at a lower elevation than
the V-zone Flood Line. Please note it is the Developer's intent to minimize improvements that could
be considered non-conforming with FEMA Guidelines, and as a result ofthese improvements, there
will be a net reduction of approximately 30,000 square feet of habitable space currently below the V-
Zone elevation.
· Parking, storage and building access points as depicted on approved site plan.
· Pools, pool decks, boardwalks, pool restrooms, and pool equipment as depicted on
approved site plan.
· Open-sided gazebo as depicted on approved site plan.
· Poolside bar and grill, with natural gas grill, sink and removable refrigerator/ice machine as
depicted on approved site plan.
. Portion of existing structures renovated into a beach social room, storage and baths as
depicted on approved site plan.
· Landscape as depicted on approved site plan.
Development Agreement
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EXHIBIT M
Development Agreement
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\\CityLaw\Cycom\Wpdocs\D019\P001 \00003854.DOC
EXHIBIT M
Covenant of Unified Use
THIS INSTRUMENT PREPARED BY
AND WHEN RECORDED, RETURN TO:
Robert F. Greene, Esquire
Greene & Schermer
1301 Sixth Avenue W, Suite 400
Bradenton, Florida 34205
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Agreement") is executed this _ day of
,200_ (the "Effective Date") by CBR DEVELOPMENT I, LLC, a Florida
limited liability company and CBR DEVELOPMENT II, LLC, a Florida limited liability company
("collectively, Owner").
W II N E.~~E.I H:
WHEREAS, Owner is the owner of the real property legally described on ExhibitA attached
hereto and incorporated herein by reference (the "Property"); and
WHEREAS, Owner and the City of Clearwater (the "City") are parties to that certain
Development Agreement dated , 200_, (the "Development
Agreement") pursuant to which the City has agreed that Owner may develop and construct upon the
Property a multi-use project consisting of not less than 240 and not more than 260 hotel units
(including condominium hotel units), not more than 120 residential condominium units and not more
than 11,000 square feet of retail space and a minimum of 431 parking spaces all as more
particularly described in the Development Agreement; and
WHEREAS, Owner has agreed that the Property shall be developed and operated for a
unified use, as more particularly described hereinbelow.
NOW THEREFORE, in consideration ofthe sum ofTen Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner does
hereby agree that the Property shall be developed and operated as a unified mixed-use project such
that the components shall have certain shared parking facilities as shown on the approved site plan.
The restrictions set forth in the preceding sentence shall survive for a period of twenty (20) years
from the Effective Date of this Agreement. Nothing in this Agreement shall preclude the purchase
and sale of the residential units and condominium hotel units and all other components ofthe mixed-
use project constructed upon the Property to separate, unrelated third-party owners, so long as all
components of the project are operated with the shared parking facilities throughout the term of this
Agreement. Owner agrees that the City shall have the right to enforce the terms and conditions of
this Agreement.
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IN WITNESS WHEREOF, the undersigned has executed this Covenant of Unified Use
effective the day and year first above written.
Witnesses:
CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By:
CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
Print Name:
Print Name:
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater
V, Inc., a Florida corporation, the General Partner of CBR Communities I, Ltd., a Florida limited
partnership, the Managing Member ofCBR Development I, LLC, a Florida limited liability company,
who is 0 personally known to me or D has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
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Witnesses:
CBR DEVELOPMENT II, LLC,
a Florida limited liability company
By:
CBR Communities II, Ltd.,
a Florida limited partnership
Managing Member
Print Name:
Print Name:
By: JMC Communities of Clearwater VI, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater
VI, Inc., a Florida corporation, the General Partner of CBR Communities II, Ltd., a Florida limited
partnership, the Managing Member of CBR Development II, LLC, a Florida limited liability company,
who is 0 personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
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EXHIBIT A
SOUTH BLOCK
Lots 1 - 13 and 49 - 56, Clearwater Beach Park, as per plat thereof recorded in Plat Book 10, Page
42, of the Public Records of Pinellas County, Florida.
Lots 43 through 48, Lots 65 through 71, and the South 14.75 feet of Lot 64, CLEARWATER BEACH
PARK, as recorded in Plat Book 10, Page 42, of the Public Records of Pinellas County, Florida.
NORTH BLOCK
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES,
TO THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH
LINE OF BAYMONT STREET, AS SAID BAYMONT STREET IS SHOWN ON SAID RE-
SUBDIVISION OF BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALAY
ROAD, AND RUN THESE N 20045'00" E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEET TO
THE CENTERLINE OF AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED
AS A PUBLIC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 11, PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE WEST ALONG THE CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE
OR LESS, TO THE WATER OF THE GULF OF MEXICO; THENCE IN A SOUTHERLY
DIRECTION ON A MEANDERING LINE ALONG THE WATERS OF THE GULF OF MEXICO,
321.00 FEET, MORE OR LESS, TO THE CENTERLINE OF SAID BAYMONT STREET; THENCE
EAST 385.00 FEET, MORE OR LESS, ALONG SAID CENTERLINE OF BA YMONT STREET TO A
POINT 40.00 FEET SOUTH OF THE POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO
THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLAT, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLAT, AS
RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
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EXHIBIT N
Development Agreement
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Development Agreement
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EXHIBIT N-1
Development Agreement
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EXHIBIT N-1
BOAT DOCK AGREEMENT
AGREEMENT
This Agreement (the "Agreement") is made as of this _ day of , 200_,
by and between THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the
"City") and CBR DEVELOPMENT I, LLC, a Florida limited liability company (the "Developer").
WITNESSETH:
WHEREAS, the City of Clearwater and Developer have entered into a Development
Agreement for Property in the City of Clearwater of even effective date (the "Development
Agreement");
WHEREAS, Section 5.03.10 of the Development Agreement provides for the City and
Developer to enter into an agreement providing for the construction of shared boat docking facilities
("Boat Dock Facilities") within a boat basin ("Boat Basin') adjoining City owned real property ("City
Property"), which Boat Basin and Boat Docking Facilities are conceptually depicted on the attached
Exhibit "A";
WHEREAS, the construction and use of the Boat Docking Facilities will further the objectives
of the City and facilitate the development by Developer of the mixed use resort Project, as provided
in the Development Agreement;
WHEREAS, at a duly called public meeting on , 200_, the City Council
approved this Agreement, and authorized and directed its execution by the appropriate officials of
the City; and
WHEREAS, the members of Developer have approved this Agreement and have authorized
the undersigned individual 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 capitalized terms used in this Agreement that are not defined shall have
the meanings given to such terms in the Development Agreement.
1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, the singular shall include the plural as well as the singular
number, and the word "person" shall include corporations and associations, limited liability
corporations and partnerships, including public bodies, as well as natural persons. "Herein,"
"hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words
refer to this Agreement and not solely to the particular portion thereof in which any such
word is used.
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1.03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (2004), as
amended from time to time.
ARTICLE 2. PURPOSE AND DESCRIPTION OF BOAT DOCKING FAICLlTIES.
2.01. Finding of Public Purpose and Benefit. The proposed Boat Docking Facilities, including
the design, construction, completion and use of the Boat Docking Facilities, is hereby found
by the parties hereto: (1) to be consistent with and in furtherance of the objectives of the
Comprehensive Plan of the City of Clearwater, (2) to conform to the provisions of Florida
law, (3) to be in the best interests of the citizens of the City, (4) to further the purposes and
objectives of the City, (5) to further the public interest on Clearwater Beach, and (6) to
implement Beach by Design, including the creation of the new quality hotel resort to be
constructed as a part of the Project.
2.02. Purpose of Agreement. The purpose of this Agreement is to further the implementation
of Beach by Design by providing for the development of the Boat Docking Facilities, all to
enhance the quality of life, increase employment and improve the aesthetic and useful
enjoyment of Clearwater Beach and the City, all in accordance with and in furtherance of the
Comprehensive Plan of the City of Clearwater and as authorized by and in accordance with
the provisions of Florida law.
2.03. Scope of the Project.
1. The Boat Docking Facilities are contemplated to include a central pier, finger piers
and associated pilings as conceptually depicted on the attached Exhibit "A", which
will accommodate a maximum of 57 boat slips ("Boat Slips"). The Developer and its
designated successors and assigns shall have the right to utilize exclusively sixty-
seven percent (67%) of the Boat Slips so long as the Boat Docking Facilities
continue to exist ("Developer Slips"). The City shall have the right to control the use
of all remaining Boat Slips ("City Slips"). The City shall have the right to utilize the
City Slips for day docking or for any other purpose permitted by the SSLL (hereafter
defined).
2. The Developer shall have the right to install a gate or other access/security
improvements on the central pier at the location on the pier that the Developer Slips
begin.
3. The Developer shall have the right, at its expense, to install water and electric lines
serving the Developer Slips and the City shall cooperate as to extension and
connection of such utilities. All utilities provided to the Developer Boat Slips shall be
separately metered and Developer shall pay all utility connection and usage charges.
Utilities shall not be provided by Developer to the City Slips.
4. Developer shall pay for all maintenance and repair costs for the Boat Slip Facilities,
including costs relating to the City Slips.
5. Developer agrees that use of the Developer Boat Slips shall be limited to owners,
tenants and guests of the Project and any sublease or assignment by Developer of
rights to utilize Developer Boat Slips shall be limited to Project owners.
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6. During the term of this Agreement, Developer shall provide a shuttle service to the
Boat Docking Facilities from the Project.
2.04. Cooperation of the Parties. The City and the Developer recognize that the successful
development of the Boat Docking Facilities and each component thereof is dependent upon
the continued cooperation of the City and the Developer, and each agrees that it shall act in a
reasonable manner hereunder, provide the other party with complete and updated information
from time to time, with respect to the conditions such party is responsible for satisfying
hereunder and make its good faith reasonable efforts to ensure that such cooperation is
continuous, the purposes of this Agreement are carried out to the full extent contemplated
hereby and the Boat Docking Facilities are designed, constructed, completed and used as
provided herein.
ARTICLE 3. REGULATORY PROCESS.
3.01 Development Approvals and Permits.
1. Applications for Development Approval. The Developer shall prepare and submit to
the appropriate governmental authorities, including the City, applications for approval
of the State of Florida Sovereignty Submerged Lands Lease ("SSLL"), all required
permits ("Permits"), and all plans and specifications ("Plans and Specifications")
necessary for the Boat Docking Facilities, and shall bear all costs of preparing such
applications, applying for and obtaining such approvals and permits, including
payment of any and all applicable application, inspection, and regulatory fees or
charges. The City shall, to the extent possible, expedite review of all applications.
The failure of this Agreement to address a particular permit, condition, or term of
restriction shall not relieve the Developer of the necessity of complying with the law
governing said permitting requirements, conditions, terms or restrictions.
2. City Cooperation and Assistance. The City shall cooperate with the Developer in
obtaining the SSLL and all necessary Permits required for the construction,
completion and use of the Boat Docking Facilities. If requested by the Developer and
authorized by law, the City will join file or in the filing of any application for the SSLL
or any Permit, or, alternatively, recommend to and urge any governmental authority
that such SSLL or Permit be issued or approved.
3. City Authority Preserved. The City's duties, obligations, or responsibilities under any
section of this Agreement, specifically including, but not limited to, this Section 3.02,
shall not affect the City's right, duty, obligation, authority and power to act in its
governmental or regulatory capacity in accordance with applicable laws, ordinances,
codes or other building regulations. Notwithstanding any other provision of this
Agreement, any required permitting, licensing or other regulatory approvals by the
City shall be subject to the established procedures and substantive requirements of
the City with respect to review and permitting of a project of a similar or comparable
nature, size and scope. In no event shall the City, due to any provision of this
Agreement, be obligated to take any action concerning regulatory approvals except
through its established procedures and in accordance with applicable provisions of
law.
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3.02. Concurrency.
1. Concurrency Reauired. The parties hereto recognize and acknowledge that Florida
law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida
Administrative Code, collectively the "Growth Management Act") imposes restrictions
on development if adequate public improvements are not available concurrently with
that development to absorb and handle the demand on public services caused by
development. The City has created and implemented a system for monitoring the
effects of development on public services within the City. The Developer recognizes
and acknowledges it must satisfy the concurrency requirements of Florida law and
the City's regulations as applied to the Boat Docking Facilities.
2. Reservation of Capacity. The City hereby agrees and acknowledges that as of the
Effective Date of this Agreement, the Boat Docking Facilities satisfy the concurrency
requirements of Florida law. The City agrees to reserve the required capacity to
serve the Boat Docking Facilities for the 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 the
Developer commences construction within the initial three (3) year period. The City
recognizes and acknowledges that the Developer will rely upon such reservation in
proceeding with the Boat Docking Facilities.
3; Reauired Public Facilities. In addition to the obligations of the City and the
Developer set out in Article 5 of this Agreement, the Water Utilities Department of
the City will provide potable water service to the Boat Docking Facilities.
ARTICLE 4. PLANS AND SPECIFICATIONS.
4.01. Plans and Specifications.
1. Responsibilitv for Preparation of Plans and Specifications. The Developer shall be
solely responsible for and shall pay the cost of preparing, submitting and obtaining
approval of the Plans and Specifications for the Boat Docking Facilities.
2. Use of Qualified Professionals. The Developer shall retain qualified professionals to
prepare the Plans and Specifications and shall cause such professionals to prepare
the Plans and Specifications.
ARTICLE 5. DEVELOPMENT OF BOAT DOCKING FACILITIES.
5.01. Ownership of City Property. The City is the owner the City Property which is more
particularly described in Exhibit "B" to this Agreement and has the littoral (riparian) rights
required to apply for the SSLL.
5.02. Boat Basin. The Boat Basin in which the Boat Docking Facilities are to be constructed
adjoins the City Property, is located on State of Florida sovereignty submerged lands, and is
depicted on the attached Exhibit "B".
5.03. Obligations of the City.
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1. SSLL. The Developer shall, at its expense, cause to be prepared the application for
the SSLL. The City shall execute and file with the State of Florida such application.
The City shall cooperate with the Developer with required processing of the
application for the SSLL and upon approval, shall execute and deliver the SSLL to
the State of Florida. So long as this Agreement remains in effect, the City shall assist
Developer and timely apply for renewals of the SSLL. Developer shall pay all lease
and other payments due the State of Florida pursuant to the SSLL, including all
payments due for renewal terms.
2. Permits. The City will cooperate and coordinate with the Developer with regard to all
Permit applications, including those to state agencies, and will facilitate or expedite,
to the greatest extent possible, the permit approval process.
3. Improvements. The Developer, at its expense, shall construct all improvements
constituting the Boat Docking Facilities.
4. Timelv Completion. The City recognizes the public importance of the timely
completion ofthe proposed improvements, and time is deemed to be of the essence.
The City considers this Agreement as overall authority for the Developer to proceed
to permit, and agrees to implement a fast-track review, permitting, and inspection
program for the Boat Docking Facilities.
ARTICLE 6. PROJECT FINANCING.
6.01. 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 reserved 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 reserved 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, foreclosure, conveyance or exercise of right shall relieve Developer from its
liability under this Agreement.
6.02. Cooperation. The City and the Developer shall cooperate as to reasonable requests for
assurances 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.
ARTICLE 7. CONSTRUCTION OF PROJECT.
7.01. Site. The Developer shall be responsible for all site investigation and environmental testing.
7.02. Construction of Boat Docking Facilities.
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1.
a.
Commencement. Developer shall construct the Boat Docking Facilities
substantially in accordance with the Plans and Specifications therefor.
Developer shall commence construction of the Boat Docking Facilities
("Commencement Date") on or before one (1) year after receipt of the SSLL
and all Permits, and expiration or resolution of all appeal/challenges thereto
("Approval Effective Date").
b. For purposes of this Section 7.02, "commence construction" means
commencement of meaningful physical development of the Boat Docking
Facilities as authorized by the Permits therefor which is continued and
diligently prosecuted toward completion of the Boat Docking Facilities.
c. 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 Boat Docking Facilities, or a part
thereof, is not complete by reason of Unavoidable Delay.
2. Pursuit of Construction. After the Commencement Date, Developer shall continue,
pursue and prosecute the construction of the Boat Docking Facilities 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 Boat
Docking Facilities. For purposes of this subsection 7.02.2, "abandoned" means to
have ceased any construction work which effectively advances the construction of
the Boat Docking Facilities toward completion, including removing all or substantially
all of the construction work force from the site of the Boat Docking Facilities for a
period of not less than sixty (60) days.
3. Maintenance of Construction Site. During the construction of the Boat Docking
Facilities, Developer shall, at its own expense, keep the Boat Docking Facilities and
all adjoining City Property in reasonably good order and condition.
4. Construction Completion. Developer agrees to complete the Boat Docking Facilities
on or before one (1) year after the Commencement Date.
7.03. 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 Boat
Docking Facilities not constituting all or any part of public improvements.
7.04. Construction Sequencing and Staging Area. The Developer shall construct the Boat
Docking Facilities in a manner and fashion which will minimize the inconvenience of the
construction on the property owners of Clearwater Beach and the residents of the City and
the use of the City Property. The City agrees to allow Developer to use portions of the City
Property as designated by the Gity for construction staging during construction of the Boat
Docking Facilities, without charge to the Developer, provided that such staging area does
not unreasonably affect the continued use of the City Property as provided for in this
Paragraph.
ARTICLE 8. INDEMNIFICATION.
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8.01. Indemnification by the Developer.
1. The Developer agrees to indemnify, defend and hold harmless, the City, its
respective agents, officers, or employees from any and all liabilities, damages,
penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees
through appellate proceedings, for personal injury, bodily injury, death or property
damage arising out of, or by reason of any act or omission of the Developer, its
agents, employees or contractors arising out of, in connection with or by reason of,
the performance of any and all services covered by this Agreement, or which are
alleged to have arisen out of, in connection with or by reason of, the performance of
any and all services covered by this Agreement.
2. The Developer shall indemnify, defend and hold harmless the City, its officers and
employees from any and all liabilities, damages, costs, penalties, judgments, claims,
demands, losses, or expenses (including, but not limited to, actual attorneys' fees
and engineering fees) arising from or attributable to any breach by the Developer, as
the case may be, of any representations or warranties contained in Section 9.01, or
covenants contained in Section 9.02.
3. The Developer's indemnity obligations under subsections (1) and (2) of this Section
shall survive the earlier of the Termination Date or the Expiration Date, but shall
apply only to occurrences, acts, or omissions that arise on or before the earlier of the
Termination Date or the Expiration Date.
4. The Developer's indemnity hereunder is in addition to and not limited by any
insurance policy and is not and shall not be interpreted as an insuring agreement
between or among the parties to this Agreement, nor as a waiver of sovereign
immunity for any party entitled to assert the defense of sovereign immunity.
8.02. Indemnification by the City.
1. To the extent permitted by law, the City agrees to indemnify, defend and hold
harmless, the Developer, its respective officers, and employees from any and all
liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses
or attorneys' fees through appellate proceedings, for personal injury, bodily injury,
death or property damage arising out of, or by reason of, any act or omission of the
City, its respective agents or employees arising out of, in connection with or by
reason of, the performance of any and all services covered by this Agreement, or
which are alleged to have arisen out of, in connection with or by reason of, the
performance of any and all services covered by this Agreement.
2. The City shall indemnify, defend and hold harmless the Developer, its officers and
employees from any and all liabilities, damages, costs, penalties, judgments, claims,
demands, losses, or expenses (including, but not limited to, actual attorneys' fees
and engineering fees) arising from or attributable to any breach by the City, as the
case may be, of any representations or warranties contained in Section 10.01, or
covenants contained in Section 10.02.
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3. The City's indemnity obligations under this Section 8.02 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.
8.03. Limitation of Indemnification. Notwithstanding anything to the contrary contained herein,
with respect to the indemnification obligations of the Developer (as set forth in Section 8.01)
and the City (as set forth in Section 8.02), the following shall apply:
1. The indemnifying party shall not be responsible for damages that could have been,
but wer~ not, mitigated by the indemnified party;
2. The indemnifying party shall not be responsible for that portion of any damages
caused by the negligent or willful acts or omissions of the indemnified party; and
3. There shall be no obligation to indemnify hereunder in the event that the indemnified
party (1) shall have effected a settlement of any claim without the prior written
consent of the indemnifying party, or (2) shall not have subrogated the indemnifying
party to the indemnified party's rights against any third party by an assignment to the
indemnifying party of any cause or action against such third party.
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER.
9.01. Representations and Warranties. The Developer represents and warrants to the City that
each of the following statements is currently true and accurate and agrees the City may rely
upon each of the following statements:
1. The Developer is a Florida Limited Liability Company duly organized and validly
existing under the laws of the State of Florida, has all requisite power and authority
to carry on its business as now conducted, to own or hold its properties and to enter
into and perform its obligations hereunder and under each document or instrument
contemplated by this Agreement to which it is or will be a party, is qualified to do
business in the State of Florida, and has consented to service of process upon a
designated agent for service of process in the State of Florida.
2. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or required by
this Agreement to which the Developer is or will be a party have been duly
authorized by all necessary action on the part of, and have been or will be duly
executed and delivered by, the Developer, and neither the execution and delivery
thereof, nor compliance with the terms and provisions thereof or hereof: (i) requires
the approval and consent of any other party, except such as have been duly
obtained or as are specifically noted herein, (ii) contravenes any existing law,
judgment, governmental rule, regulation or order applicable to or binding on the
Developer, (iii) contravenes or results in any breach of, default under or, other than
as contemplated by this Agreement, results in the creation of any lien or
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encumbrance upon any property of the Developer under any indenture, mortgage,
deed of trust, bank loan or credit agreement, the Developer's Articles of
Organization, or, any other agreement or instrument to which the Developer is a
party or by which the Developer may be bound.
3. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or required by
this Agreement to which the Developer is or will be a party constitutes, or when
entered into will constitute, a legal, valid and binding obligation of the Developer
enforceable against the Developer in accordance with the terms thereof, except as
such enforceability may be limited by applicable bankruptcy, insolvency or similar
laws from time to time in effect which affect creditors' rights generally and subject to
usual equitable principles in the event that equitable remedies are involved.
4. There are no pending or, to the knowledge of the Developer threatened actions or
proceedings before any court or administrative agency against the Developer, or
against any controlling shareholder, officer, employee or agent of the Developer
which question the validity of this Agreement or any document contemplated
hereunder, or which are likely in any case, or in the aggregate, to materially
adversely affect the consummation of the transactions contemplated hereunder or
the financial condition of the Developer.
5. The Developer has filed or caused to be filed all federal, state, local and foreign tax
returns, if any, which were required to be filed by the Developer and has paid, or
caused to be paid, all taxes shown to be due and payable on such returns or on any
assessments levied against the Developer.
6. All documentation, including that pertaining to the Boat Docking Facilities or the
Developer, delivered by the Developer to the City was, on the date of delivery
thereof, true and correct.
7. The principal place of business and principal executive offices of the Developer is in
St. Petersburg, Florida, and the Developer will keep records concerning the Boat
Docking Facilities (such as construction contracts, financing documents and
corporate documents) and all contracts, licenses and similar rights relating thereto at
an office in Pinellas County.
8. As of the Effective Date, the Developer will have the financial capability to carry out
its obligations and responsibilities in connection with the development of the Boat
Docking Facilities as contemplated by this Agreement.
9. The Developer has the experience, expertise, and capability to develop, cause the
construction, and complete the Boat Docking Facilities and, oversee and manage
the design, planning, construction, completion and use of the Boat Docking
Facilities.
9.02. Covenants. The Developer covenants with the City that until the earlier of the Termination
Date or the Expiration Date:
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1. The Developer shall timely perform or cause to be performed all of the obligations
contained herein which are the responsibility of the Developer to perform.
2. During each year that this Agreement and the obligations of the Developer under
this Agreement shall be in effect, the Developer shall cause to be executed and to
continue to be in effect those instruments, documents, certificates, permits, licenses
and approvals and shall cause to occur those events contemplated by this
Agreement that are applicable to, and that are the responsibility of, the Developer.
3. The Developer shall assist and cooperate with the City to accomplish the
development of the Boat Docking Facilities by the Developer in accordance with the
Plans and Specifications, and this Agreement, and will not violate any laws,
ordinances, rules, regulations, orders, contracts or agreements that are or will be
applicable thereto.
4. Subsequent to the Effective Date, the Developer shall maintain its financial capability
to develop, construct and complete the Boat Docking Facilities and shall promptly
notify the City 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
Developer's financial capability to successfully and completely develop, construct
and complete the Boat Docking Facilities as contemplated hereby.
5. The Developer shall promptly cause to be filed when due all federal, state, local and
foreign tax returns required to be filed by it, and shall promptly pay when due any tax
required thereby.
6. Subject to Section 18.01, the Developer shall maintain its existence, will not dissolve
or substantially dissolve all of its assets and will not consolidate with or merge into
another corporation, limited partnership, or other entity or permit one or more other
corporations or other entity to consolidate with or merge into it without the prior
approval of the City unless the Developer or an entity under common control with
Developer, retains a controlling interest in the consolidated or merged entity, and will
promptly notify the City of any changes to the existence or form of the entity or any
change in the control of the Developer.
7. Other than sales and assignments contemplated by this Agreement, the Developer
shall not sell, lease, transfer or otherwise dispose of all or substantially all its assets
without adequate consideration and will otherwise take no action which shall have
the effect, singularly or in the aggregate, of rendering the Developer unable to
continue to observe and perform the covenants, agreements, and conditions hereof
and the performance of all other obligations required by this Agreement.
8. The Developer shall not permit, commit, or suffer any waste of the City Property or
the Boat Docking Facilities.
9. Provided all conditions precedent thereto have been satisfied or waived as provided
herein, the Developer shall design, construct and complete the Boat Docking
Facilities such that it is substantially complete as provided in this Agreement no later
than the Completion Date.
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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:
1. The City is a validly existing body corporate and politic of the State of Florida, has all
requisite corporate power and authority to carry on its business as now conducted
and to perform its obligations hereunder and under each document or instrument
contemplated by this Agreement to which it is or will be a party.
2. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or required by
this Agreement to which the City is or will be a party have been duly authorized by all
necessary action on the part of, and have been or will be duly executed and
delivered by, the City, and neither the execution and delivery thereof, nor compliance
with the terms and provisions thereof or hereof (i) requires the approval and consent
of any other party, except such as have been duly obtained or as are specifically
noted herein, (ii) contravenes any existing law, judgment, governmental rule,
regulation or order applicable to or binding on the City, (iii) contravenes or results in
any breach of, or default under or, other than as contemplated by this Agreement,
results in the creation of any lien or encumbrance upon any property of the City
under any indenture, mortgage, deed of trust, bank loan or credit agreement,
applicable ordinances, resolutions or, on the date of this Agreement, any other
agreement or instrument to which the City is a party, specifically including any
covenants of any bonds, notes, or other forms of indebtedness of the City
outstanding on the Effective Date.
3. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or required by
this Agreement to which the City is or will be a party constitute, or when entered into
will constitute, legal, valid and binding obligations of the City enforceable against the
City in accordance with the terms thereof, except as such enforceability may be
limited by public policy or applicable bankruptcy, insolvency or similar laws from time
to time in effect which affect creditors' rights generally and subject to usual equitable
principles in the event that equitable remedies are involved.
10.02. Covenants. The City covenants with the Developer that until the earlier of the Termination
Date or the Expiration Date:
1. The City shall timely perform, or cause to be performed, all of the obligations
contained herein which are the responsibility of the City to perform.
2. During each year that this Agreement and the obligations of the City under this
Agreement shall be in effect, the City shall cause to be executed and to continue to
be in effect those instruments, documents, certificates, permits, licenses and
approvals, and shall cause to occur those events contemplated by this Agreement
that are applicable to and are the responsibility of the City.
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3. The City shall assist and cooperate with the Developer to accomplish the
development of the Boat Docking Facilities in accordance with this Agreement and
the Plans and Specifications, will carry out its duties and responsibilities
contemplated by this Agreement, and will not violate any laws, ordinances, rules,
regulations, orders, contracts, or agreements that are or will be applicable thereto,
and, to the extent permitted by law, the City will not enact or adopt or urge or
encourage the adoption of any ordinances, resolutions, rules regulations or orders or
approve or enter into any contracts or agreements, including issuing any bonds,
notes, or other forms of indebtedness, that will result in any provision of this
Agreement to be in violation thereof.
4. The City shall not permit, commit, or suffer any waste or impairment to the Boat
Docking Facilities, nor shall the City alter the City Property, or any part thereof, so as
to prevent or adversely affect the development and use of the Boat Docking
Facilities.
ARTICLE 11. CONDITIONS PRECEDENT.
11.01. Developer Obligations. Unless this Agreement has been terminated pursuant to Article 12
hereof, the obligation of the Developer to construct the Boat Docking Facilities is subject to
the fulfillment to the satisfaction of, or waiver in writing by, the Developer of each of the
following conditions precedent:
1. All conditions precedent under Article 11 of the Development Agreement have been
satisfied or waived by Developer.
2. The Plans and Specifications required to commence construction of the Boat
Docking Facilities shall have been approved by the City in accordance with
applicable ordinances, land use regulations, building codes and other regulations of
the City.
3. The City shall have obtained the SSLL as provided in Article 6 hereof.
4. All Permits necessary for construction of the Boat Docking Facilities to commence
shall have been issued and have become final and non-appealable.
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 the Developer.
1. There shall be an "event of default" by the Developer under this Agreement upon the
occurrence of anyone or more of the following:
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a. The Developer shall fail to perform or comply with any material provision of
this Agreement applicable to it within the time prescribed therefor, after
receipt of a notice from the City pursuant to Subsection 12.01.2.a.; or
b. The Developer shall make a general assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its debts as they become
due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or
insolvent, or shall file a petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation or shall file an answer admitting,
or shall fail reasonably to contest, the material allegations of a petition filed
against it in any such proceeding, or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of the Developer or any
material part of such entity's properties; or
c. Within sixty (60) days after the commencement of any proceeding by or
against the Developer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation, such proceeding shall not have
been dismissed or otherwise terminated, or if, within sixty (60) days after the
appointment without the consent or acquiescence of the Developer of any
trustee, receiver or liquidator of any of such entities or of any material part of
any of such entity's properties, such appointment shall not have been
vacated; or
2.
If an event of default by the Developer described in subsection 1 above shall
occur, the City shall provide written notice thereof to the Developer, and, if
such event of default shall not be cured by the Developer within thirty (30)
days after receipt of the written notice from the City specifying in reasonable
detail the event of default by the Developer, or if such event of default is of
such nature that it cannot be completely cured within such time period, then if
the Developer shall not have commenced to cure such default within such
thirty (30) day period and shall not diligently prosecute such cure to
completion within such reasonable longer period of time as may be
necessary (provided, however, if the Developer is proceeding diligently and
in good faith, the curative period shall be extended for a period of not
exceeding six (6) months without any approval or consent of the City being
required, but such approval will be required if the curative period is to be
extended beyond six (6) months) then, in addition to any remedy available
under Section 12.05, the City may terminate this Agreement or pursue any
and all legal or equitable remedies to which the City is entitled, provided,
however, if the Developer shall fail to cure such event of default within said
thirty (30) day or longer period or ceases to proceed diligently to timely cure
such event of default, then the City may proceed to enforce other available
remedies without providing any additional notice to the Developer.
a.
b. Any attempt by the City to pursue any of the above referenced remedies will
not be deemed an exclusive election of remedy or waiver of the City's right to
pursue any other remedy to which either may be entitled.
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c. Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if
such event affects the Developer's or City's ability to perform by such
deadline or the expiration of such period.
3. Subject to the rights of the Project Lender, if the City elects to cure a default under
Subsection 12.01.1. by the Developer, construction contracts, contract documents,
building permits, development permits, management agreements, and financial
commitments (all only to the extent assignable) with respect to the Project shall, if
such default has not been previously cured, on the day following receipt by the
Developer of notice from the City of its election to cure, be deemed then assigned to
the City making said election, without necessity of any other action being taken or
not taken by any party hereto. The Developer shall transfer and deliver to the City
upon making said election, all assignable Plans and Specifications, working
drawings, construction contracts, contract documents and all Permits, and, at the
direction of the City, the defaulting the Developer shall vacate the Parcel(s).
12.02. Default by the City.
1. Provided the Developer is not then in default under Section 12.01, there shall be an
"event of default" by the City under this Agreement in the event the City shall fail to
perform or comply with any material provision of this Agreement applicable to it;
provided, however, that suspension of or delay in performance by the City during any
period in which the Developer is in default of this Agreement as provided in Section
12.01 hereof will not constitute an event of default by the City under this Subsection
12.02.
2.
a.
If an event of default by the City described in Subsection 12.02.1. shall occur,
the Developer shall provide written notice thereof to the City, and, after
expiration of the curative period described in paragraph (b) below, may
terminate this Agreement, institute an action to compel specific performance
of the terms hereof by the City or pursue any and all legal or equitable
remedies to which the Developer is entitled; provided, however, if the event
of default by the City occurs, any monetary recovery by the Developer in any
such action shall be limited to bona fide third-party out of-pocket costs and
expenses, including reasonable attorneys' fees, incurred by the Developer in
connection with this Agreement and the transactions contemplated hereby,
unless any such default by the City was willful and committed in bad faith
with reckless disregard for the rights of the Developer.
b. The Developer may not terminate this Agreement or institute an action
described in paragraph (2a) 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
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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 cure such event of default, then the Developer may
proceed with its available remedies without providing any additional notice to
the City.
c. Any attempt by the Developer to pursue any of the remedies referred to in
paragraphs a. and b. above will not be deemed an exclusive election of
remedy or waiver of the Developer's right to pursue any other remedy to
which it might be entitled.
d. Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if
such event affects the Developer's or City's ability to perform by such
deadline or the expiration of such period.
12.03. Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to the
contrary, the specified rights and remedies to which either the City or the Developer are
entitled under this Agreement are not exclusive and are intended to be in addition to any
other remedies or means of redress to which the City or the Developer may lawfully be
entitled and are not specifically prohibited by this Agreement. The suspension of, or delay
in, the performance of its obligations by the Developer while the City shall at such time be in
default of their obligations hereunder shall not be deemed to be an "event of default." The
suspension of, or delay in, the performance of the obligations by the City while the
Developer shall at such time be in default of its obligations hereunder shall not be deemed to
be an "event of default" by the City.
12.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of the City
or the Developer to promptly or continually insist upon strict performance of any term,
covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other
agreement, instrument or document of whatever form or nature contemplated hereby shall
not be deemed a waiver of any right or remedy that the City or the Developer may have, and
shall not be deemed a waiver of a subsequent default or nonperformance of such term,
covenant, condition or provision.
12.05. Termination Prior to Commencement of Project.
1. The Developer and the City acknowledge and agree that as of the Effective Date
certain matters mutually agreed by the parties hereto to be essential to the
successful development of the Boat Docking Facilities 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
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an approval required for development of the Boat Docking Facilities. In recognition
of these events or conditions, the parties hereto mutually agree that, provided the
appropriate or responsible party therefor diligently and in good faith seeks to the
fullest extent of its capabilities to cause such event or condition to occur or be
satisfied, the failure of the events or conditions listed in subsection 2. below to occur
or be satisfied shall not constitute an event of default by any party under this Article
12, but may, upon the election of any party hereto, be the basis for a termination of
this Agreement in accordance with this Section.
2. In addition to any other rights of termination provided elsewhere in this Agreement,
prior to commencement of the Boat Docking Facilities, this Agreement may be
terminated as provided in subsection 3. of this section by the City or the Developer
after the occurrence of any of the following events or conditions (except for
subsection b. , in which event only the Developer may terminate this Agreement
pursuant to this subsection 2.):
a. The appropriate governmental authority (including the City in exercise of its
governmental and regulatory authority and responsibility), upon petition by
the Developer denies or fails to: enter into the SSLL, issue the Permits, or
issue any other approval necessary to commence construction of the Boat
Docking Facilities, provided the Developer has proceeded diligently,
expeditiously and in good faith to obtain such SSLL, Permits or other
necessary actions;
b. A previously unknown site condition is subsequently discovered and that
condition prevents successful development of the Boat Docking Facilities.
3. Upon the occurrence of an event described in subsection 2. or in the event that the
Developer or the City, after diligently and in good faith to the fullest extent its
capabilities, is unable to cause a condition precedent to its respective obligations to
occur or be satisfied, 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.
4. In the event of a termination pursuant to this Section 12.05, neither the Developer
nor the City shall be obligated or liable one to the other in any way, financially or
otherwise, for any claim or matter arising from or as a result of this Agreement or any
actions taken by the Developer and the City, or any of them, hereunder or
contemplated hereby, and each party shall be responsible for its own costs,
however, the provisions of Sections 9.01 and 10.01 shall apply and shall survive
termination of this Agreement, the provisions of this Subsection 12.05.4 to the
contrary notwithstanding.
12.06. Termination Certificate.
1. In the event of a termination of this Agreement for any reason prior to the Expiration
Date, each of the parties hereto do covenant and agree with each other to promptly
execute a certificate prepared by the party electing to terminate this Agreement,
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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 Boat Basin is no longer subject to any
restrictions, limitations or encumbrances imposed by this Agreement.
2. The certificate described in Subsection 1. shall be prepared in a form suitable for
recording and promptly after execution by all of the parties hereto shall be recorded
in the public records of Pinellas 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 City, the Developer, the Boat Docking Facilities (or any part thereof),
the Boat Basin or 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
13.01 is subject to the following:
1. Such proceeding shall suspend the execution or enforcement of such charge,
payment or requirement;
2. Such proceeding will not create any risk of impairment of the construction,
completion, operation or use of the Boat Docking Facilities or any part thereof, in any
material respect, and no portion of the Boat Docking Facilities would be subject to
any risk of being involuntarily sold, forfeited or lost or the construction, equipping, or
completion of the Boat Docking Facilities or any part thereof be delayed or
prohibited;
3. Such proceeding will not subject any other party to criminal liability or risk of material
civil liability for failure to comply therewith, or involve risk of any material claim
against such party; and
4. The party seeking the benefit of this Article shall have furnished to the other parties
such security, if any, as may be required in such proceeding or as may be
reasonably requested by the others, to protect the Boat Docking Facilities 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
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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.
1.
2.
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a.
Unless accelerated arbitration as provided in Section 14.08 hereof is
invoked, any party invoking arbitration herewith shall, within five (5) days after
giving notice of impasse in the dispute resolution process or upon following
the expiration of the time period for such dispute resolution occurrence of the
event permitting arbitration to be invoked, give written notice to that effect to
the other parties, and shall in such notice appoint a disinterested person who
is on the list of qualified arbitrators maintained by the American Arbitration
Association or a disinterested person not on such list to whom an objection is
not made by any other party hereto within five (5) days of receipt of the notice
of such appointment as the arbitrator or, if more than one (1) arbitrator is to
be appointed, as one of the arbitrators.
b. Within ten (10) days after receipt of the notice described in paragraph (1), the
other parties shall by written notice to the original party acknowledge that
arbitration has been invoked as permitted by this Agreement, and shall either
accept and approve the appointment of such individual set forth in the
original notice as a sole arbitrator or shall appoint one (1) disinterested
person per party of recognized competence in such field as an arbitrator.
a.
If two (2) arbitrators are appointed pursuant to subsection a. above, the
arbitrators thus appointed shall appoint a third disinterested person who is on
the list of qualified arbitrators maintained by the American Arbitration
Association, and such three (3) arbitrators shall as promptly as possible
determine such matter.
b. If the second arbitrator shall not have been appointed as provided in
subsection a., the first arbitrator shall, after ten (10) days notice to the
parties, proceed to determine such matter.
c. If the two (2) arbitrators appointed by the parties pursuant to subsection a.
shall be unable to agree within fifteen (15) days after the appointment of the
second arbitrator upon the appointment of a third arbitrator, they shall give
written notice of such failure to agree to the parties, and, if the parties then
fail to agree upon the selection of such third arbitrator within fifteen (15) days
thereafter, then within ten (10) days thereafter each of the parties upon
written notice 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
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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 Chapter682,
Florida Statutes, known and referred to as the Florida Arbitration Act, as
amended.
14.03. General Procedures. In any arbitration proceeding under this part, those parties appointing
arbitrators shall each be fully entitled to present evidence and argument to the sole arbitrator
or panel of arbitrators. The arbitrator or panel of arbitrators shall only interpret and apply the
terms of this Agreement and may not change any such terms, or deprive any party to this
Agreement of any right or remedy expressed or implied in this Agreement, or award any
damages or other compensation to any party hereto. The arbitration proceedings shall
follow the rules and procedures of the American Arbitration Association (or any successor
organization thereto) unless specifically modified by this Agreement, or as then agreed to by
the parties hereto.
14.04. Majority Rule. In any arbitration proceeding under this part, the determination of the
majority of the panel of arbitrators, or of the sole arbitrator if only one (1) arbitrator is used,
shall be conclusive upon the parties and judgment upon the same may be entered in any
court having jurisdiction thereof. The arbitrator or panel of arbitrators shall give written
notice to the parties stating his or their determination within thirty (30) days after the
conclusion of the hearing or final submission of all evidence or argument.
14.05. Replacement of Arbitrator. In the event of the failure, refusal or inability of any arbitrator to
serve as such, promptly upon such determination being made by the affected arbitrator, the
affected arbitrator shall give notice to the other two (2) arbitrators (if applicable) and to the
parties hereto, and then a new arbitrator shall be promptly appointed as a replacement,
which appointment shall be made by the party or the arbitrators who appointed the affected
arbitrator in the same manner as provided for in the original appointment of the affected
arbitrator in Section 14.02 hereof.
14.06. Decision of Arbitrators.
1. If any decision reached by arbitration as provided in this part requires performance
by the Developer, the Developer covenants and agrees to comply with any decision
of the arbitrator(s) promptly after the date of receipt by the Developer of such
decision, and to continue such performance to completion with due diligence and in
good faith.
2. If any such decision requires performance by the City, the City covenants and agrees
to comply promptly with any decision reached by arbitrators) promptly after the date
of receipt by the City of such decision, and to continue such performance to
completion with due diligence and in good faith.
3. Nothing in this part, nor in any arbitration decision rendered under this part, shall be
construed to require any payment by the City to the Developer not otherwise
provided for herein.
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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 14.07, "expenses" shall include the fees and expenses of the arbitrators and
the American Arbitration Association with respect to such proceeding, but shall notinclude
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 ofthe party incurring such fees or
costs.
14.08. Accelerated Arbitration.
1.
a.
If any of the parties to any arbitration proceeding under this part determines
the matter for arbitration should be decided on an expedited basis, then after
an initial election to invoke arbitration pursuant to Section 14.02 hereof has
been made, either party to such proceeding may invoke accelerated
arbitration by giving notice thereof to the other parties no later than three (3)
days after arbitration has been initially invoked and the other parties do not
object within three (3) days thereafter.
b. Accelerated arbitration, for purposes of this Section 14.08, shall be
accomplished by either party notifying the American Arbitration Association
(or any successor organization thereto) that the parties have agreed to a
single arbitrator, qualified to decide the matter for arbitration, to be appointed
by the American Arbitration Association (or any successor organization
thereto) with the consent of the parties to such proceeding within three (3)
days after receipt of the request and to decide such matter within five (5)
days after such appointment.
c. If an arbitrator is not so appointed with consent of the parties to the
proceeding within three (3) days after the notice referred to in paragraph (2)
is received by the American Arbitration Association, the accelerated
proceeding under this Section 14.08 shall terminate and the procedures
otherwise set forth in this Article 14 shall apply, unless the parties mutually
agree to an extension of such time period.
2. The Developer and the City hereby agree to use such accelerated procedure only
when reasonably necessary, to not contest the appointment of the arbitrator or his or
her decision except as may be permitted by law, and that all other provisions of this
part, except as are in conflict with this Section 14.08, remain in effect and applicable
to an accelerated arbitration proceeding.
14.09. Applicable Law. To the extent not inconsistent with this article, any arbitration proceeding
under this article shall be governed by the provisions of Chapter 682, Florida Statutes, as
amended, known and referred to as the Florida Arbitration Code.
14.10. Arbitration Proceedings and Records. Any arbitration hearing under this article shall be
considered a meeting subject to Section 286.011, Florida Statutes, and shall be open to any
member of the public. Unless otherwise rendered confidential pursuant to or by the
operation of any applicable law or order (other than an order by a sole arbitrator or panel of
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arbitrators acting under this part), the record of such proceedings shall be a public record
under Chapter 119, Florida Statutes.
ARTICLE 15. UNAVOIDABLE DELAY.
15.01. Unavoidable Delay.
1. Any delay in performance of or inability to perform any obligation under this
Agreement (other than an obligation to pay money) due to any event or condition
described in paragraph (b) as an event of "Unavoidable Delay" shall be excused in
the manner provided in this Section 15.01.
2. "Unavoidable Delay" means any of the following events or conditions or any
combination thereof: acts of God, litigation which has the effect of precluding
reasonable satisfaction of the obligations of this Agreement, acts of the public
enemy, riot, insurrection, war, pestilence, archaeological excavations required by
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).
3. An application by any party hereto (referred to in this paragraph (c) and in paragraph
(d) as the "Applicant") for an extension of time pursuant to this subsection must be
in writing, must set forth in detail the reasons and causes of delay, and must be filed
with the other party to this Agreement within seven (7) days following the occurrence
of the event or condition causing the Unavoidable Delay or seven (7) days following
the Applicant becoming aware (or with the exercise of reasonable diligence should
have become aware) of such occurrence.
4. The Applicant shall be entitled to an extension oftime for an Unavoidable Delay only
for the number of days of delay due solely to the occurrence of the event or condition
causing such Unavoidable Delay and only to the extent that any such occurrence
actually delays that party from proceeding with its rights, duties and obligations under
this Agreement affected by such occurrence.
ARTICLE 16. RESTRICTIONS ON USE.
16.01. Project. Prior to the earlier of the Termination Date or the Expiration Date, no use of the
Boat Docking Facilities, other than as described in Section 2.03, shall be permitted, unless
and until the Developer or the person, if other than the Developer, intending to so use the
Boat Docking Facilities, shall file with the City a request for a release from the restriction
imposed by this Section. The Governing Body of the City shall promptly consider such
request and either deny the request, approve the request as filed, or approve the request
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subject to such terms, conditions and limitations as the City may reasonably require. Unless
specifically requested and approved, a release of the restriction imposed by this Section
shall not release the Developer from any obligations or restrictions imposed by this
Agreement or any agreement, instrument or document contemplated hereby.
ARTICLE 17. FIRE OR OTHER CASUALTY; CONDEMNATION.
17.01. Loss or Damage to Project.
1 . Until the Termination Date or the Expiration Date, and without regard to the extent or
availability of any insurance proceeds, however, subject to any condition or
limitations as set forth in the SSLL or Permits, the Developer shall have the right to
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 Boat Docking Facilities
substantially the same condition as existed prior to the occurrence of such loss or
damage, promptly after the City approves the Plans and Specifications for such
reconstruction or repairs.
2. The City shall review the Plans and Specifications for such reconstruction or repairs
as soon as possible after filing thereof by the Developer. The City agrees to approve
the Plans and Specifications for such reconstruction or repairs if the reconstruction
or repairs contemplated by such Plans and Specifications will restore the Boat
Docking Facilities, 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.
3. If Developer elects not to reconstruct or repair the Boat Docking Facilities as
provided herein, Developer shall promptly remove all improvements constituting the
Boat Docking Facilities in compliance with the requirements of the City, SSLL and
the Permits.
17.02. Partial Loss or Damage to Project. Until the Terminate Date or the Expiration Date, any
loss or damage by fire or other casualty or exercise of eminent domain to the Boat Docking
Facilities, or any portion thereof, which does not render the Boat Docking Facilities unusable
for the use contemplated by Section 2.03 of this Agreement, shall not operate to terminate
this Agreement or to relieve or discharge the Developer from the timely performance and
fulfillment of the Developer's obligations pursuant to this Agreement, subject to an extension
of time for an Unavoidable Delay.
17.03. Insurance Proceeds.
1. Whenever the Boat Docking Facilities, or any part thereof, shall have been damaged
or destroyed, the Developer shall promptly make proof of loss and shall proceed
promptly to collect, or cause to be collected, all valid claims which may have arisen
against insurers or others based upon such damage or destruction.
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2. Subject to the rights of a Project Lender, the Developer agrees that all proceeds of
property or casualty insurance received by the Developer as a result of such loss or
damage shall be available and shall be used for payment of the costs of the
reconstruction or repair of the Boat Docking Facilities to the extent necessary to
repair or reconstruct the Boat Docking Facilities.
17.04. Notice of Loss or Damage to Boat Docking Facilities. The Developer shall promptly give
the City written notice of any significant damage or destruction to the Boat Docking Facilities
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 Boat Docking
Facilities, and the proposed schedule, if any, for repair or reconstruction ofthe Boat Docking
Facilities.
17.05. Condemnation of Boat Docking Facilities; Application of Proceeds. In the event that
part, but not all, of the Boat Docking Facilities 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 Boat Docking Facilities, provided the Boat Docking Facilities can be
restored and be commercially feasible for its intended use as contemplated by Section
2.03.1. of this Agreement after the taking, and, if not, can be retained by the Developer.
ARTICLE 18. MISCELLANEOUS
18.01. Assignments.
1. Bv the Developer.
a. The Developer may sell, convey, assign or otherwise dispose of any or all of
its right, title, interest and obligations in and to the Boat Docking Facilities, or
any part thereof, only with the prior written consent of the City, which consent
is hereby granted for assignment to a party to which Developer's rights are
assigned pursuant to the Development Agreement, provided that such party
(hereinafter referred to as the "assignee"), to the extent of the sale,
conveyance, assignment or other disposition by the Developer to the
assignee, shall be bound by the terms of this Agreement the same as the
Developer for such part of the Boat Docking Facilities as is subject to such
sale, conveyance, assignment or other disposition.
b. If the assignee of the Developer's right, title, interest and obligations in and to
the Boat Docking Facilities, or any part thereof assumes all of the
Developer's obligations hereunder, then the Developer shall be released
from all such obligations hereunder which have been so assumed by the
assignee, and the City agrees to execute an instrument evidencing such
release, which shall be in recordable form.
c. An assignment of the Boat Docking Facilities, any part thereof, by the
Developer to any corporation, limited partnership, limited liability company,
general partnership, or joint venture, in which the Developer (or an entity
under common control with Developer) has either the controlling interest or
through a joint venture or other arrangement shares equal management
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rights and maintains such controlling interest or equal management rights
shall not be deemed an assignment or transfer subject to any restriction on
or approvals of assignments or transfers imposed by this Section 18.01,
provided, however, that notice of such assignment shall be given by the
Developer to the City not less than thirty (30) days prior to such assignment
being effective and the assignee shall be bound by the terms of this
Agreement to the same extent as would the Developer in the absence of
such assignment.
d. No assignee, purchaser, sublessee or acquirer of all or any part of the
Developer's rights and obligations with respect to any portion of the Boat
Docking Facilities shall in any way be obligated or responsible for any of the
Developer's obligations by virtue of this Agreement unless and until such
assignee, purchaser, sublessee or acquirer has expressly assumed the
Developer's obligations.
e. Notwithstanding the foregoing, so long as this Agreement is in effect,
Developer shall have the right to sublease or license the use of individual
Developer Boat Slips to Owners within the Project without City's consent.
18.02. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of
the City, and its successors and assigns, and the Developer and its successors and assigns,
except as may otherwise be specifically provided herein.
18.03. Notices.
1. All notices, demands, requests for approvals or other communications given by
either party to another shall be in writing, and shall be sent by registered or certified
mail, postage prepaid, 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:
CBR Development I, LLC
2201 - 4th Street North
Suite 200
St. Petersburg, FL 33704
Attn: J. Michael Cheezem
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
with copies to:
with copies to:
E.D. (Ed) Armstrong, III
P.O. Box 1368
Clearwater, FL 33757
Pam Akin, Esquire
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
and
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Greene & Schermer
1301 - 6th Avenue West
Suite 400
Bradenton, FL 34205
Attn: Robert F. Greene, Esquire
2. Notices given by courier service or by hand delivery shall be effective upon delivery
and notices given by mail shall be effective upon receipt. Refusal by any person to
accept delivery of any notice delivered to the office at the address indicated above
(or as it may be changed) shall be deemed to have been an effective delivery as
provided in this Section 18.03. The addresses to which notices are to be sent may
be changed from time to time by written notice delivered to the other parties and
such notices shall be effective upon receipt. Until notice of change of address is
received as to any particular party hereto, all other parties may rely upon the last
address given.
18.04. Applicable Law and Construction. The laws of the State of Florida shall govern the
validity, performance and enforcement of this Agreement. This Agreement has been
negotiated by the City and the Developer and the Agreement, including, without limitation,
the Exhibits, shall not be deemed to have been prepared by the City or the Developer, but by
all equally.
18.05. Venue; Submission to Jurisdiction.
1. For purposes of any suit action, or other proceeding arising out of or relating to this
Agreement, the parties hereto do acknowledge, consent, and agree that venue
thereof is Pinellas County, Florida.
2. Each party to this Agreement hereby submits to the jurisdiction of the State of
Florida, Pinellas County and the courts thereof and to the jurisdiction of the United
States District Court for the Middle District of Florida, for the purposes of any suit,
action, or other proceeding arising out of or relating to this Agreement and hereby
agrees not to assert by way of a motion as a defense or otherwise that such action is
brought in an inconvenient forum or that the venue of such action is improper or that
the subject matter thereof may not be enforced in or by such courts.
3. If at any time during the term of this Agreement the Developer is not a resident of the
State of Florida or has no office, employee, City or general partner thereof available
for service of process as a resident of the State of Florida, or if any permitted
assignee thereof shall be a foreign corporation, partnership or other entity or shall
have no officer, employee, agent, or general partner available for service of process
in the State of Florida, the Developer hereby designates the Secretary of State, State
of Florida, its agent for the service of process in any court action between it and the
City, or both, arising out of or relating to this Agreement and such service shall be
made as provided by the laws of the State of Florida for service upon a non-resident;
provided, however, that at the time of service on the Florida Secretary of State, a
copy of such service shall be delivered to the Developer at the address for notices as
provided in 18.03.
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18.06. Estoppel Certificates. The Developer and the City shall at any time and from time to time,
upon not less than ten (10) days prior notice by another party hereto, execute, acknowledge
and deliver to the other parties a statement in recordable form certifying that this Agreement
has not been modified and is in full force and effect (or if there have been modifications that
the said Agreement as modified is in full force and effect and setting forth a notation of such
modifications), and that to the knowledge of such party, neither it nor any other party is then
in default hereof (or if another party is then in default hereof, stating the nature and details of
such default), it being intended that any such statement delivered pursuant to this Section
18.06 may be relied upon by any prospective purchaser, mortgagee, successor, assignee of
any mortgage or assignee of the respective interest in the Boat Docking Facilities, if any, of
any party made in accordance with the provisions of this Agreement.
18.07. Complete Agreement; Amendments.
1. This Agreement, and all the terms and provisions contained herein, including without
limitation the Exhibits hereto, constitute the full and complete agreement between
the parties hereto to the date hereof, and supersedes and controls over any and all
prior agreements, understandings, representations, correspondence and statements,
whether written or oral.
2. Any provision of this Agreement shall be read and applied in para materia with all
other provisions hereof.
3. This Agreement cannot be changed or revised except by written amendment signed
by all parties hereto.
18.08. Captions. The article and section headings and captions of this Agreement and the table of
contents preceding this Agreement are for convenience and reference only and in no way
define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way
affect this Agreement or construe any article, section, subsection, paragraph or provision
hereof.
18.09. Holidays. It is hereby agreed and declared that whenever a notice or performance under
the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal
holiday observed in the City, it shall be postponed to the next following business day.
18.10. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this
Agreement. The Exhibits and any amendments or revisions thereto, even if not physically
attached hereto shall be treated as if they are part of this Agreement.
18.11. No Brokers. The City and the Developer hereby represent, agree and acknowledge that no
real estate broker or other person is entitled to claim or to be paid a commission as a result
of the execution and delivery of this Agreement, including any of the Exhibits.
18.12. Not an Agent of City. During the term of this Agreement, the Developer hereunder shall not
be an agent of the City with respect to any and all services to be performed by the Developer
(and any of its agents, assigns, or successors) with respect to the Boat Docking Facilities.
18.13. Memorandum of Agreement. The City and the Developer agree to execute, in recordable
form, at the request of either party, a short form "Memorandum of Agreement" and agree,
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authorize and hereby direct such Memorandum to be recorded in the public records of
Pinellas County, Florida, as soon as possible after execution thereof. The Developer shall
pay the cost of such recording.
18.14. Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills
and is pursuant to and for a public purpose and municipal purpose and is in the public
interest, and is a proper exercise of the City's power and authority.
18.15. 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, a pledge of the ad valorem
taxing power of the City or a general obligation or indebtedness of the City within the
meaning of the Constitution of the State of Florida or any other applicable laws, but shall be
payable solely from legally available revenues and funds. Neither the Developer nor any
other party under or beneficiary of this Agreement shall ever have the right to compel the
exercise of the ad valorem taxing power of the City or any other governmental entity or
taxation in any form on any real or personal property to pay the City's obligations or
undertakings hereunder.
18.16. Other Requirements of State Law. Nothing in this Agreement shall be deemed to relieve
either party from full compliance with any provision of State law which is applicable to any of
the obligations or undertakings provided for in this Agreement. In the event that this
Agreement omits an obligation to comply with any provision of State law in regard to any of
the obligations or undertakings provided for in this Agreement, it is the intention of the
parties that such applicable State law shall be deemed incorporated into this Agreement and
made a part thereof. In the event that there is any conflict between the provisions of this
Agreement and applicable State law, it is the intention of the parties that the Agreement shall
be construed to incorporate such provisions of State law and that such provisions shall
control.
18.17. Technical Amendments; Survey Corrections. In the event that due to minor inaccuracies
contained herein or any Exhibit attached hereto or any other agreement contemplated
hereby, or due to changes resulting from technical matters arising during the term of this
Agreement, the parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change the substance of
this Agreement may be made and incorporated herein. The City Manager is authorized to
approve such technical amendments on behalf of the City, respectively, and is authorized to
execute any required instruments, to make and incorporate such amendment to this
Agreement or any Exhibit attached hereto or any other agreement contemplated hereby.
18.18. Term; Expiration; Certificate.
1. If not earlier terminated as provided in Section 12.05, this Agreement shall expire
and no longer be of any force and effect on the fifth (5th) anniversary of the Effective
Date. Notwithstanding the foregoing, provided the SSLL remains in effect and no
default by Developer under this Agreement then exists, the Developer shall have the
option to renew this Agreement for five (5) successive renewal terms of five (5) years
each, and such renewal options shall be deemed automatically exercised unless
written notice from Developer of intent to not renew is received by the City prior to
the expiration of the then current term.
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2. Upon completion of the term of this Agreement, all parties hereto shall execute the
Agreement Expiration Certificate. The Agreement Expiration Certificate shall
constitute (and it shall be so provided in the certificate) a conclusive determination of
satisfactory completion of all obligations hereunder and the expiration of this
Agreement.
3. In the event of any dispute as to whether any party is required to execute the
Agreement Expiration Certificate, the dispute shalJ be resolved by arbitration as
provided in Article 14.
4. The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records of Pinellas County, Florida. Following execution by all
of the parties hereto, the Agreement Expiration Certificate shall promptly be recorded
by the Developer in the public records of Pinellas County, Florida and the Developer
shall pay the cost of such recording.
18.19. Approvals Not Unreasonably Withheld. The parties hereto represent that it is their
respective intent as of the Effective Date and do covenant and agree in the future that all
approvals, consents, and reviews will be undertaken and completed as expeditiously as
possible, in good faith, and will not be arbitrarily or unreasonably withheld, unless otherwise
expressly authorized by the terms of this Agreement.
18.20 Severability. If any term, provision or condition contained in this Agreement shall, to any
extent, be held invalid or unenforceable, the remainder of this Agreement, or the application
of such term, provision or condition to persons or circumstances other than those in respect
of which it is invalid or unenforceable, shall not be affected thereby, and each term, provision
and condition of this Agreement shall be valid and enforceable to the fullest extent permitted
bylaw.
18.21. Effective Date. The Effective Date shall be the date of the last signature to this 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 , 200_.
THE CITY OF CLEARWATER, FLORIDA
Attest:
By:
By:
City Clerk
Mayor
Approved as to form and correctness:
, Esquire
City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200_, by and , Mayor and City Clerk,
respectively, for the City of Clearwater, Florida, on behalf of the City, who is 0 personally known to
me or 0 has produced a Florida driver's license or 0 as
identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
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CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
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EXHIBIT "A"
Boat Dock Improvement.
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F"AMILY RECREATION CENTER
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EXHIBIT "B"
CITY PROPERTY
LEGAL DESCRIPTION
Parcel No. OS/29/15/00000/330/0100
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