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MARRIOTT SEASHELL BEACH RESORT CLEARWATER BEACH PROJECT PROPOSAL " \ ~iM~ _ _' . -~i: iQr{i.f',w~(i-.~~1 . -- - -- - -- - :: ~ - - - - - - - ~ - ---. .~ arrlott' Seashell Beach Resort Clearwater Beach Proj eet Proposal ~ I . ... November 2000 Seashell Beach Resort LLC Seashell Beach Resort Clearwater Seashell Resort LC Phone 727-791-0063 28059 U.S.Highway 19 North Fax 727-796-0909 Suite 1 00 Clearwater, Florida . Marriott Seashell Beach Resort Gulfview Beach Proposal Including: Marriott Hotel & Center Parking Systems . Restaurant I Retail Clearwater's best opportunity to revitalize its tourism, attract a new quality resort hotel, implement Gulfview redevelopment, provide expanded beach parking, and create a destination restaurant & retail activity center . . . . Marriott Seashell Resort Meeting Clearwater Beach Economic Development Needs November 10,2000 Dear Mayor and Commissioners, Clearwater has a unique opportunity to fulfill three key Clearwater Beach goals, the Beach Walk, a Resort Hotel, and a Public Parking Garage, all in one project decision. For the past 36 months Clearwater has aggressively pursued a series of investments of time, talent and resources to redevelop its unique barrier island beach to be a high performing asset in the tourism economy of Clearwater and Pinellas County. We're proud to bring you the 250 room Marriott Seashell Beach Resort with a 1,000 space parking facility accessible directly to the Beach and an exciting restaurant & retail destination. The Beach Walk plan goal of removal on parking on the sand can be accomplished by providing the public with a major self-supporting garage with direct beach access, providing for maximum use and benefit to resident and tourism visitors alike. Designed with right-in I right-out access, the garage needs no traffic signals. This facility has special importance to families with children and our senior population, especially to our citizens with movement limitations who need safe and convenient access. Providing the altemative for covered parking will also be a major beach visitor benefit. The creation of the Beach Walk and commitment to public-private development of the parking garage with a pedestrian beach ''walk over" creates an unbelievable setting which has enabled us to attract Marriott, an international world class flag hotel. This project will be the 21st century prototype for beach resort development. Pinellas County's recently completed comprehensive tourism visioning process concluded that new product is at the top of the list for dispelling the perception that our tourism infrastructure is tired and obsolete. Linking our new Marriott Seashell Beach Resort with its sister facilities in Tampa and Orlando will bring significant economic development benefits to Clearwater and Pinellas County. . This proposal sets out a process that follows a methodical schedule to review the draft agreement, analyze the resulting costs and benefits, and reach conclusions in a timely way. This process will produce agreements, commitments and approvals that allow us both to accomplish the outstanding challenge before us. We commit to you our professional and capable team that is community-based, open, creative and committed to a public-private working relationship that will be exceeded in quality only by the improvements we jointly accomplish. Clearwater's success in implementing Beach by Design will be our success. Let us begin! incerely, , William Kimpton Team Leader . . 2 . Marriott Seashell Resort Meeting Clearwater Beach Economic Development Needs Executive Summary . Marriott Seashell Hotel- 250 Hotel Units, privately owned and financed. First beach-front Marriott north of Marco Island. . 1000 Car Parking Garage, shared 600 spaces to Public Parking, 400 spaces to Hotel. Clearwater purchase 600 spaces from resort at $17,900 per space. . Restaurant I Retail Activity Center, 35,000 to 50,000 square feet, uses public parking after beach hours, increasing City's income. . Parking Garage delivered to City turnkey, completed before the new bridge opens. . . Shared-use of Garage means NO SUBSIDY by City - the hotel underwrites 40% of operating costs and the restaurant/retail uses boost the income. . The Garage underwrites a portion of the land cost, making the hotel economics feasible. . Annual Economic Impact of $ 1,200,000 in new property taxes and 250 new permanent jobs. . Replaces 2 blighted motels with stunning Marriott Resort. . Commences South Gulfview Boulevard Redevelopment. . Implemented by Development Agreement, which sets forth terms, including street vacations, height, operations and other issues. . 3 . . . The Before Pictures The Glass House and Beach Place "South Gulfview... all but an embarassment" Beach by Design . . . Marriott Seashell Resort Project Proposal Meeting Clearwater Beach Economic Development Needs Table of Contents Project Setting / Beach by Design Section 1 Marriott Hotel Proposal Section 2 Parking Garage Proposal Section 3 Restaurant/Retail Activity Center Section 4 Project Program & Schedule Section 5 Economic Impact Section 6 Development Team Section 7 Development Agreement Section 8 4 . . . Section 1 Marriott Seashell Resort Project Meeting Clearwater Beach Economic Development Needs Project Setting I Beach by Design Responsive This exciting project is planned in response to the outstanding efforts of the community to create the Beach by Design plan as a redevelopment methodology for Clearwater Beach. The city's long history of Beach planning now can advance to Beach implementation. The call to action by resident business and professional input has been consistent in desiring an improved image with major entries, promenades and parking facilities. Catalytic projects are already underway and we're please to propose the first South Beach - Gulfview - Beach Walk catalytic project. Our project is responsive to the efforts the city has made and we look forward to working to provide improved land-use, mobility, off street parking and develop a catalytic destination Marriott hotel resort. Recognized Need The Beach walk district is our first priority for investment action. With over a year of effort to move from concept to development commitments, we are proud to address the conditions your planning process has defined. We concur with the recognition that the greatest impact from the plan will be achieved by the addressing the Gulfview Boulevard challenge. Responding to the definition of Gulfview Boulevard, south of Pier 60 Park, as "lacking coherence in the city's stewardship of its most important resource" and recognizing "the public realm along South Gulfview is all but an embarrassment". The street is "shabby with poor definition, substandard sidewalks... DOT street lights, no bicycle paths" and places hundreds of surface parking spaces between pedestrian and the Beach. Beach by Design states that this makes ''the view from South Gulfview - potentially one of the great beach-front drives in the world - one of asphalt and parked cars". We request your plan commitment and ultimate implementation of the most critical Beach improvement needed being the Beach walk concept proposed in Beach by Design. Mobility Your commitment to this improvement will stimulate the investment in a major destination Marriott Beach Resort. The road improvements proposed in the mobility recommendations will enhance both movement and appearance of the area. Each element is critical - from distribution to alternative modes and creating high-quality pedestrian bicycle facilities. In Pinellas County, with 5 . t:: o ---- ~ u --c:::c ~ '-- ~ I.f~ ~~ ~ >< lJ.... Q) ~ Q) t:: . t:: 0 00 ~co ~-o o Q) ~ Q) co t:: ~ 00 U) co J:: . >- ~ ~ ~ lU (!) ~9 lUQ:: ::C::ca ~ lU S U- S (!) ~ ~ . . . . our water side drives are limited to causeways, the Beach Walk proposal creating a "Great Beach Drive" where "the pedestrian has priority" is just the setting for the catalytic Marriott Seashell Beach Resort. This major attraction with a major parking facility can be a key destination to meaningful water and roadway transit links between the downtown and the Beach. Catalytic Project and Hotel Incentive Pool Beach walk requires a public-private partnership. We're pleased to be the first to propose a project to respond and validate the opportunity and demands of providing a mixed-use project that will change the character of the Beach Walk I Gulfview District. We are responsive to the definition of a catalytic project in every respect: . We have assembled a site within the designated resort development area . We exceed the minimum of 200 hotel rooms, proposing 250. . The Marriott Seashell will provide the full-service restaurant with room service. . The Marriott Seashell will provide valet parking, concierge and a complete spa. . A quality conference center is planned, scaled to the capacity of the hotel . The resort will access off-site sports venues for golf, fishing and boating. . The Marriott Seashell resort is a full-service urban hotel facility with internal lobbies and circulation. . Marriott Hotels bring a high quality image, brand and product commitment that insures the resort destination to be recognized nationally and internationally, particularly with the Marriott network existing in the Florida market. . Marriott's 21st century design standards applied to beach resort setting will create an exceptional architectural design with high-quality finishes and furnishings. The architectural concept design for this proposal was prepared by award-winning architects Cooper Carry Associates of Atlanta. . This outstanding site is approximately the scale of two football fields, and will be 1.6 acres in size after the Third Street vacation. This site is in excess of the minimum 1 acre requirement. The project site is strategically at the midpoint of the beach, where the wide surface parking lots would be removed. This allows for the garage to be at the center point of the Beach Walk roadway. . The proposed parking deck will not be naked exposed concrete, but will be completely screened by the restaurants, retail and hotel. This building will not look like a parking deck. The parking deck will be financially sound and pay for both public and private components. The garage design allows for future connection to either North or South resort expansions. . Parking removal from the surface lots west of Gulfview can be in the range of 200 - 300 spaces. In addition, the Beach Walk design provides for two parking surface parking 6 . cts ~ ~ ",..."" t:: <J) E 0- o ........ ~ <J) a Ol t::. . ........ ~ cts a... '"" t o U) <J) a::: ~ <J) . ........ ~ ........ ::J (!) . . .... """.,. I,. '" t- . I, f" , , , , , , . , , . . . . ::: ',: ',',',': "~ . "f "" 'I, . . . "eyebrows" on the east side of the roadway, providing significant parking in proximity to the promenade and existing Gulfview retail. . Design guidelines are set in the Beach by Design plan approvals and the majority can be accommodated by this outstanding Marriott resort facility. The challenge to enclose the deck on its major fronts is a primary objective. The building's mass will present challenges to conform to the guidelines, and may require some stepbacks as the height passes the 42 foot mark. The percentage of kitchen facilities may need to be 15 to 20 percent. . Special street frontage design efforts will create an outstanding experience for pedestrian movement on both Coronado and the Gulfview promenade. Detail design for creating safe pedestrian zones and accommodating ingress-egress to the parking deck will require close design interface for both roadways. . The magnitude of private investment proposed by this project will create a direct linkage and immediate response to public investments made in mobility and amenity elements proposed in Beach by Design. The parallel alignment for a form of intra-beach transit will be stronger with a stop and a relationship to the parking deck with a Beach Pedestrian over-pass. . The HOK design concept developed for the city has a positive image and scale to accomplish the objectives presented in the South Gulfview plan to accomplish the "great address which will stimulate revitalization and renovation". Lastly we believe the utilization of the County's existing Primary Activity Center Designation is a creative tool that utilizes an existing urban intensity land-use procedure but limits its benefit to accomplish only the incentive desired by the city's redevelopment plan for hotel resort facilities within the limited hotel Beach front districts. This procedure will make a significant benefit to plan implementation. 400 units, available only for five-years, is a manageable incentive tool needed to create the opportunity for desired urban hotel resort facilities such as the proposed Marriott. The Development Agreement is an appropriate vehicle for the accomplishment of this project and will require considerable focus and discussion for understanding and consensus 7 e . . CITY GULFVIEW CONCEPT . ~. I Third Street Site ~ '~:f'l~';:'.!.;~".'Z;;:; ~.~~.~~._I C:. ! / - ~-;'~:';'~? ......~ I.J AIA.lIAJ6 ~ .........l~B~ <;, ~...~ "~~'~~'" . "~ ':~~~" ':: ,'-~~ ~~<: ~'~~-== I HOK / CIty Concept1'lan VIew '" Concept Cross Section _....'. '. ~ . . /..~...., ........... .,..".......&.. ~...-/ ,.......,.r'l.<U... . Section 2 Marriott Seashell Resort Project Description Meeting Clearwater Beach Economic Development Needs MARRIOTT HOTEL PROPOSAL - 250 Hotel Units The Marriott Seashell Resort is planned to become the premier hotel in North Pinellas County. This Marriott will be the first beach hotel north of Marco Island. Its location at the terminus of U. S. Highway 60 will easily link to Marriott's new convention hotel in downtown Tampa and with Maniotts in the Orlando attraction market. Modeled after the newest Marriotts in Atlanta and Miami, this hotel will provide a family vacation destination offering the consistent high quality of environment and service for which Marriott is renowned. This quality image will spill over to give Clearwater Beach tourism a much needed boost and to spark other properties to redevelop in kind. The Marriott Seashell will include: . . 250 Hotel Units; kings, doubles, small and large suites and penthouses. . Ballroom and Meeting Rooms . Full Service Restaurant and Hotel Bar . Multiple Pools, Spas and Cabanas on the Pool Terrace overlooking the Gulf of Mexico . Gift shops and other Accessory Retail . Business Center, Fitness Center, Concierge Service Center . Beach-side "Beach Concierge" offering to'vYE!ls, chairs, shO'vYE!r and locker facility to guests . 8 . . . Marriott's newest, the 314 room Marriott Alpharetta, outside Atlanta 9 . . ,~-.It':~:~~~i "';,;, ~+~lii~~ ' ""'R i%}t~'i~~J' ;;"J.iB;,.J }' ,I, r- ~ .~ ~ ~~~ . ...Jif'r;.,l~':::1 c.tt ~fiir ..Iba~~~...," ' 1 it.~ ~ ~~~~_ -.:::o~~ .,,1' 1JJ!!II . ~q;~ \\'~'~~.. --- ariioftJ _ _ _A\ _____ _ _ ___~ Seashell Beach Resort 250 Rooms, Full Service, Conference Center, Spa and Destination Retail Restaurant Facility t" " U1L.'{t. .........' ~';i17~'~&, .'c. " ~<' -- '111111 -. , .~-r. ~ ~l;iL;':.l;iIiL:LLe! - '. I I , I "f'.__~"'.:o.o'~':<l.~__,",,~.. ", ..,"M"'"" - --,. - .." " ' J nllKD~"1l([.(.T e CORO'.\OO U)8R\ r HU111.lJHorOn- R \CK 0"- HOt'SF. IllUl1illlJJLLL)ill!Jd Illl 0 fL- ~1:R"~Jr I '} t= ~ I III i'\ ~ \l!!" llT\TIIII\II! e -- '(OIHII I\L\RRIOTT SL\SII ELL BEACH RF.SORT eL.E.<\R\\'.\TER SL\SlIELL IU:SOIn L.c. GROUND LEVEL, SITE PLAN, AND ACCESS r... ~~ ~C,\Lr.: \" ~6f)' \O\T.\lIIrR 'IHIH . II ---~~~-) I I ~~~-------- conO_'l.\I)() / ---------- ._-~ r i , I .'".' '\ " :-; \ I J.J 01 n rTT~ rTTITn~ ! 1 \ j-i J 1____- . U~LLIJ_lllll ! ) I :JJ~lJJJ m1lTIT' I II 'TI-r\'-/Tl 1 1 II \ !! ! I I . I \\ ~ : \ l I II! I "- - .> C1V1 0 _.~ 1 \ \ ! \ ! ! IJllUfu Ill! UJ I1TITI-nlTnTTIlllllrrl \ \ I \. '. 1 1 I I , I I Ii: I \ UJ>PER LEHL RETAIL A:'III) IIO'TEL 1-l\ITS UPPER LEVEL RETAIL AM> 1I0TEL U:<ITS . -- .,OIIIH ~flY ~! ---.~ "" ';YI ~'V / ~- ------'<!SI-" ~~~/. . '~~~~ ~~ ~ <7 <PI/~ ,,~'..'" ~ I~ kll ~ ~// "~~~/ <' "yf~ ~""./ "'/ ' ~ -......-.___ _------- 't ---.-------- i\L\ RR)OTT SL\SHELL HEACI-I RESORT DECK AND RET/\.IL CONFIGURATION r:iil ~!I SC-\ I.f.: I" =6'" .\O\"l:\mrfl !Ofll) CLEM{WXTER SEASIIELL RESORT L.c. . l ~ . ..-- (.ErK TOI' \I.... RRIOTT ("()~n:Rf:!'\rr. <-''':Jlir,TF.R R()()\IS 04.80'"[ nUl1 ^1\1.~IT" IU:CK A:"in OUTl)(}OR Ct:STEK ~~ it HOTEL ~()RTlt TOWJ:R ~~ ~ co:t ~ 1:0; . t::1 t=r IfOT[I. Stllmf TOW[R . CAtll\SA U:\'.:I. C^R;\~A 1.[\'t:1. .$ ~ //~ // . vrJil . . ~ .. .~~, ~ '<<JiI ~~ f(fJiI . .~ . ~ --- :"OllTH MARRIOTT SEASHELL BEACH RESORT HOTEL~OOLTERRACE LEVEL r:iiil ~. ~~~~ SCALf.; 1"-6D' :'IlO\'r.~IRr.R 200D CLEARWATER SEASIIELL RESORT I~C. . . . Beach Develo ment Cross Section I ..,~~ r~~,1 L t Ii ... . f., .. ;:~ Coronado Retail 800-1000 Deck Parking Spaces Retail Pedestrian Gulfview Cleanvater Cafe Zone Beach . . . Section 3 Marriott Seashell Resort Project Description Meeting Clearwater Beach Economic Development Needs PARKING GARAGE - Public 500 -700 Private 350 - 450 Located behind the hotel and restaurant/retail f~de, the parking garage will provide shaded parking with a pedestrian crossover to the beach. This parking provides the benefit and safety of beach-front parking without blocking views and allows the City to remove most of the "sea of asphalt" presently marring our beach-front. The design solves the problem of an exposed parking garage creating an eyesore, which the public found so objectionable at the Pier 60 location. This 1000 car facility is planned to have a commercial condominium form of QIMlership, and spaces will be QIMled by the City of Clearwater and the hotel: . 600 Public Parking spaces, QIMled by the City, serving the beach, restaurants and retail . 400 Hotel Spaces, QIMled by the Hotel, serving the Hotel guests The exact number of spaces may vary somewhat, depending on the needs of both the City and the Hotel. Management will be provided by the Commercial Condominium Association, and Operating Expenses of the Garage will be shared proportionately by the QIMlers, reducing the burden on all. The Association will competitively select professional parking operators to manage the facility to the high standards demanded by the public, and by Marriott Corporation. The City of Clearwater will purchase their spaces on the terms set forth in the Development Agreement, at a price of $17,900 per space purchased. This price includes one-half the project land cost, which enables the economics of the hotel necessary to bring a hotel of Marriott's caliber. The feasibility of the Garage from the City's side has been analyzed by Republic Parking, a nationally recognized leader in the parking service industry. Republic's report follows, but may be summarized in finding that the City's extra income from restaurants and retail, combined with reduced operating costs by shared parking, results in a self-sustaining City investment with a debt coverage ratio of 1. 7x. Not only does this garage pay for itself, but it enables the hotel project, which produces redevelopment of the beach, resuscitates tourism and produces the accompanying tax benefits. This is truly a win-win project. 10 . . . Beach Parkin Cross Section llif1) r::I1i1iJ rJ1dlJ ll1:f11.13j {{f]pJJrm ;;i; ;,.~ l' ff,';Jt/l ~111.. . u11t', ,W" ~ @rmNp ;\"i L. ; ., Coronado Retail 1000 Deck Parking Spaces Retail Pedestrian Gulfview Clearwater Cafe Zone Beach . j TlURIl STREET C()RO~^()O . H01'EI.IlROPO..'F UJUtI\" . - ~ORTH CLEARWATER SEASHELL RESORT L.c. GROUND LEVEL, SITE PLAN, AND ACCESS MARRIOTT SEASHELL BEACH RESORT r... ~II !;~~,~:,. SCALf.: ." ..aO' ~OVDIllf.R 20011 . . . REPU8&.~ PARKING SYSTEM Executive Offices' Suite 2000 Republic Centre' Chattanooga' Tennessee' 37450' 423.756.2771' (FAX) 423.265.5728 Focused on the Fundamentals November 9, 2000 Mr. Jim Egnew Prime Interests 748 Broadway, Suite 202 Dunedin, FL 34698 Dear Jim: I have enclosed our proforma for your development in Clearwater, FL. As discussed, the proforma shows the costs associated with the development as well as anticipated revenue. As you can see, there is a healthy operating profit even though the proforma reflects open space in the facility during peak times. As such, you could consider the revenue shown to be somewhat conservative. We remain interested in the facility for several reasons: Shared Use: This facility is an excellent example of a shared use garage. The daytime demand for the facility will be high for beach parkers. As evening falls, these patrons will leave the facility allowing room for the restaurant patrons expected. The demand curves for each user group are opposing, allowing for maximum turn and use of the spaces in the facility. Shade: Having operated surface parking lots in Florida, I am aware of how important it is to find shade when you plan on visiting the beach for the day. With temperatures in the high 90's, the temperature inside an uncovered vehicle can reach into the 120's. Many parking patrons will seek out shade so the contents of their vehicles are not damaged by the heat. This facility, being both shaded and extremely convenient to the beach will surely be a favorite. Convenience and Proximity: The routing of traffic after exiting the bridge and roundabout will make this facility one of the first seen when a beach patron visits Clearwater. Location is very important to a parking facility and this project is in a prime Visit our website at www.republicparking.com. . . . spot. There is a clear line of site from the beach to the garage with a pedestrian walkway for added convenience. We can easily envision the parking patron spotting the location with it's shaded parking and proximity to the beach and making the quick decision to use the facility. Amenities: The garage will offer the most convenient, shaded parking for beachgoers as well as a pedway to reach the beach. It will also offer other amenities which will be very attractive to the parking patron. Showers will allow the patron to clean up before entering their vehicles for the drive home. This added comfort would be greatly appreciated. In addition, the facility will have lockers which allow for storage of personal effects should the patron wish to visit one of the restaurants before heading home. And finally, the restaurants and retail themselves are a great attraction. Proforma: The proforma reflects a conservative approach, yet the debt coverage for the facility is still very comfortable. When calculating the revenue generated by the facility we utilized industry standards that were tempered with experience and judgment. For example, the restaurant revenue was decreased due to the "shared use" concept. Shared use is, in a sense, a prediction that some of the traffic generated by a venue will be shared with another venue. For example, some of the people who visit the beach will also visit a restaurant. They park once, but visit two venues. As such, we have decreased the demand called for by the amount of shared use. In the restaurant, the discount was 30%. The expense side of the proforma reflects an actual operation and is very realistic. In summary, the facility shows great cash-flow potential. Demand: The development promises exciting restaurant and retail tenants, which will attract patrons and thereby, demand for the parking facility. When we augment an internal demand with that generated by decreasing the existing beach parking by 200 spaces, it only heightens our enthusiasm for the project. The project itself will surely attract more beach patrons to the south beach district. Spreading the risk: the hotel will share the operating expenses as well as debt service. Their assumption of 40% of the risk is certainly an attractive aspect which gives even greater comfort in the facility. As I've indicated, we are very bullish on the development. All of the factors I've touched on above give us the sense that it will be very successful. We look forward to sharing in that success. Sincerely, Mark Pratt Regional Vice President Visit our website at www.republicparking.com. . RIEPUBLlC PARKING svs...... MARRIOTT SEASHELL RESORT - CLEARWATER BEACH, FL November 3,2000 PROJECT SUMMARY Hotel Parking - 400 spaces. Restaurant I Retail I Beach Parking - 600 spaces 'Amortization on Parking Equipment: $75,000 @ 9% @ 10 yrs. Recovery of hotel share - 40% Debt Service: $17,900 x 600 = $10,740,000 @ 6.5% @ 25 yrs. $ 283,552 $ (113,421) $ 0 $ 20,000 $ 16,720 $ (6,688) $ 869,940 $ 1,070,103 Garage Operating Costs: Recovery of hotel share - 40% Property Taxes: Maintenance Reserve: Spaces Occupied Day Night 74 135 79 135 79 . 150 113 150 18 30 300 150 . Total Project Costs: I Restaurant Parkin : Casual and Bar Driven Sunday thro Wednesday Noon rush 15,000 sq.fl. x 10 spaces I K x 70% occupancy x 30% shared use x .75 turn x $3 A TP x 205 days = PM rush 15,000 s .fl. x 10 s aces 1 K x 100% occu anc x 10% shared use x 1 turn x $3 ATP x 205 da s = Thursday, Friday and Saturday: Noon rush 15,000 sq.fl. x 10 spaces 1 K x 75% occupancy x 30% shared use x .75 turn x $3 A TP x 156 days = PM rush 15,000 s .fl. x 10 s aces 1 K x 100% occu anc x 10% shared use x 1.5 turn x $3 ATP x 156 da s = Restaurant Parkin : Less Casual and Bar 1 Dinin Driven Sunday thro Wednesday Noon rush 15,000 sq.fl. x 10 spaces 1 K x 70% occupancy x 0% shared use x .75 turn x $3 ATP x 205 days = PM rush 15,000 s .fl. x 10 s aces 1 K x 100% occu an x 0% shared use x .75 turn x $3 ATP x 205 da s = Thursday, Friday and Saturday Noon rush 15,000 sq.fl. x 10 spaces 1 K x 75% occupancy x 0% shared use x 1.5 turn x $3 A TP x 156 days = PM rush 15,000 s .fl. x 10 s aces 1 K x 100% oceu anc x 0% shared use x 1.5 turn x $3 A TP x 156 da s = 18 Retail Parking: 6,000 sq.fl. x 4 spaces 1 K x 75% avg. oce. X 2 turns x $5 ATP x 361 days 30 Employees: 30 spaces x $301 month x 12 months Beach Parking: Sat, Sun - 300 spaces x $12 x 2 turns x 104 days Monday thru Friday - 300 spaces x $12 x 1/2 turn x 260 days Total Revenue Operating Profits Debt Coverage: $ 33,901 $ 83,025 $ 27,641 $ 94,770 $ 48,341 $ 69,187 $ 39,487 $ 105,300 $ 64,980 $ 10,800 $ 748,800 $ 468,000 $1,794,232 $ 724,129 1.68 . . . Marriott Seashell Resort Expense Proforma October 25, 2000 REPUBL~ PARKING SYSTIIM Labor expense assumes two lanes in, two lanes out. One exit lane will be manned from 7am to 3 am seven days per week. The other lane would be open only during peak times. Assume an extra 24 hours per week for F, S, Sun operations. Maintenance for 40 hours per week assumes cleaning hotel spaces as well. Cashier Labor: Booth 1: (7:00am to 3:00am) 20 hours / day x $7.50 / hr x 360 days Booth 2: (4:00pm to 11 :OOpm) 7 hours / day x $7.50 / hr x 156 days Maintenance: 1 man x 6 hours x $8.50 / hr x 360 days Manager: Full cost of manager Subtotal Payroll: Payroll Taxes: 12.25% Group Insurance: 3 employees x $225 / mo Uniforms: Supplies: Ticket Purchase Repairs and Maintenance Data Processing Utilities 1050 spaces x $65 space due to ventilation General Liability Insurance GKLL Insurance (if needed / requested) Banking / Bank Account Advertising Postage Telephone Garage Sweeping Elevator Maintenance (assumes two cabs at $450 each / month) Security: (assumes sharing of hotel security guard) Management Fee $ 54,000 8,190 18,360 30,000 110,550 13,542 8,100 500 4,200 2,500 4,200 1,800 68,250 7,350 700 600 1,000 500 1 ,440 6,000 10,800 17,520 24,000 Total Operating costs: $ 283,552 2000 1800 1600 1400 1200 1000 800 600 400 200 0 Jan --- Weekend 662 -+- Weekday 381 . . . Beach Parking Demand Feb 977 579 Apr 1101 758 Aug 1007 450 Dee 513 423 Sept 712 380 Oct 657 402 Nov 619 376 May 1201 419 Jun 1096 536 Jul 975 593 Mar 1068 656 . . . Section 4 Marriott Seashell Resort Project Description Meeting Clearwater Beach Economic Development Needs RETAIL I RESTAURANT PROPOSAL - 35,000 - 50,000 Sq.Ft. A comment heard all over the Bay area is that we lack quality waterfront settings for social outings. To the residents of Clearwater and the Tampa Bay area, one of the most exciting elements of the project will be the restaurants and retail shops that terrace the first few levels of the westem facade. We plan four unique restaurants, all of which will overtook the Gulf of Mexico. In addition, there will be several upscale shops that complement the quality of the restaurants and the Marriott Resort. The ability to dine and relax in a beautiful waterfront setting will bring real meaning to the concept of a beach front activity center. The attraction of four waterfront restaurants will pull evening visitors from the entire market, and will provide the bonus of evening parkers to the City's parking garage. The size, quality and price points of these restaurants will be similar to that found in Urban Entertainment Center projects elsewhere, but with a style to suit the new Clearwater Beach. ~ I I Clearwater Beach's version of South Beach 11 . . . Beach Retail /Restaurant Cross Section ), ~ ~ lJWcIIiIIJ f1lIi11 fllg I AyQ ~ . ff h ~ ~~~ .7' ~, _..:. Coronado Retail 1000 Deck Parking Spaces Retail Pedestrian Cafe Zone . J ("()R()~:\f)O r j . UPPER LEVEL RETAIL A.~D 1I0TEL "/IOITS UPPER UHL RETAIL A~D lIoTEL I'SITS . ~ " w ., o ... ~ ~ ! .. '" Z " ; !;; E '" .. ~ - SORTH MARRIOTT SEASHELL REACH RESORT DECK AND RETAIL CONFIGURATION ~iiI ~!II '.;':V'IJI,.<<RflV A..u."....."A SCALF.: I" -60' :-IO\'f.~lRf.R 1000 CLEARWATER SEASHELL RESORT L.c. . ':;C~.r.'.~ ';.'t.:t;:.~.b.;-. -"'~l' ~w, . ~..,.":. ~10,~,~.'~ '" ".... .., I -' . ,... ~lrU:~ ~ -~ !' . L I Creating Place and . Leveraging Amenities ... I I l ' . . . . . . Section 5 Marriott Seashell Resort Meeting Clearwater Beach Economic Development Needs Approval Process & Schedule The overall project time frame tracks the Commission's direction and "mandating" action to reach commitments for a parking garage facility prior to the end of the year, and to commence the garage construction in time to assure completion in advance of completion of the new Memorial Bridge. Additionally, accomplishing the municipal goal of opening the new Marriott Seashell Beach Resort Hotel in conjunction with the garage will also require an aggressive schedule targeted to the season of 2003. Nov. 10,2000 - Submit Seashell proposal to the City of Clearwater Nov. 13, 2000 - City of Clearwater Commission Workshop Seashell Workbook Presentation of Marriott Seashell project proposal to Commission and staff. Nov. 16,2000 - Commission Meeting - Conceptual Approval Full presentation of project team with focus on key elements required to move forward Commission discussion and conceptual approval of development agreement framework with particular attention to the following areas proposed in Beach By Design Plan: . Beach Walk road and pedestrian system for Gulfview Blvd. . Catalytic Project hotel unit pool assignment . Parking Deck concept for approximately 1,000 spaces (proposed 60/40 split) . Definition of review and negotiation steps. . Beach by Design workshops will be completed November 15, providing extensive community input to plan and allowing approximately four weeks of discussion prior to the December 12 Commission meeting. 14 . . . Nov. 30, 2000 - File Site Plan Approval Package with Conditions to Community Development Board (CDB) Submit package to comprehensively address required approvals for infill project. Unified package should process key approval areas considered to be: . Site Plan Elements . Height requirements . Road Vacations-Third Street & Conditional 1/2 Gulfview . Development Agreement Elements . Action by COB will occur January 23, 2001, subsequent to commission approval condition on "Beach by Design" approval December 4, 2000 - City of Clearwater Commission Workshop - Beach by Design & Seashell Issue Resolution December has only one regular meeting and it is critical the schedule that consensus be reached at this meeting to approve the "Beach by Design" plan in order to commence the intergovernmental process with the Pinellas Planning Council and Board of County Commissioners. Conceptual approval from the November 16 meeting could allow for commencement of agency discussions. Critical procedural and financial commitments require action in January on the project contracts and funding. Issues for resolution in the Seashell Beach Resort Development Agreement will be discussed and closure reached on key elements such as the allocation of pool hotel units, parking number count and public-private allocation, parking costs for space for both public and private use and resolution of any remaining significant points of the development agreement. December 12, 2000 -Approval Package review with Community Development Board (CDB) Appearance at December COB meeting to provide overview of project structure and prepare any additional information required by staff DRC review or issues developed by COB members. This courtesy discussion will hopefully avoid delay of information needed for recommendations and decisions prior to January COB meeting. December 12, 2000 - Commission Meeting - Plan and Development Agreement Approval Regular meeting presentation and action on the Beach by Design plan with direction for staff to process plan through appropriate intergovernmental agencies. Subsequently the Marriott Seashell Resort project Development Agreement approval would occur on the agenda addressing all issues established in December 4 workshop. The Development Agreement approval contains conditions subject to Beach by Design agency approval. January 22, 2001 -Issue Demolition Permit 15 . . . January 23, 2001 -Site Plan Approval Package with Conditions to Community Development Board (COB) Comprehensive review and recommendations address required approvals for infill project. Unified package addresses key approval areas: . Site Plan Elements . Height requirements . Road Vacations-Third Street & conditional 1/2 Gulfview . Development Agreement Elements . Action by COB on January 23, 2001 will have conditional elements addressing "Beach by Design" approval. January 29, 2001 - Property Closing February 5, 2001 - Issue Foundation Permit February Week 1 - Demolition of Glass House and Beach Place February Week 2 - Commence Foundation Construction 16 . . . Marriott Seashell Resort Short Term Schedule Approvals and Start Construction Action Week of 6-Nov-oO 13-Nov.00 20-Nov-00 27 -Nov-OO 4.Dec-00 11-Dec-00 1S-Dec-00 25-Dec-00 1.Jan-01 S.Jan -01 15-Jan .01 22-Jan-01 29-Jan-01 5-Feb-01 12.Feb.01 I I Submit Seashell Proposal to City I Commission Workshop I I Commission Meeting. Conceptual Approval File Site Plan with COB Commission Workshop. Resolve Seashell Issues I I Commission Workshop - Resolve Beach by Design COB - Review Appearance I I Commission Meetina . Approve Seashell Commission Meeting. Approve Beach by Design I Prepare Demolition Plans I I Prepare Foundation Plans I COB. Site Plan Approval I I File Demolition Permit Package Issue Demolition Permit Property Closing l File Foundation Permit Package I Issue Foundation Permit I Demolish Glass House and Beach Place Motels Beain Foundation Construction I . . . Marriott Seashell Resort Project Schedule Quarterly, Through Grand Openinq Action Quarter I Oct.oo Jan.01 Apr.01 Jul.01 Oct-01 Jan-02 Apr.02 Jul.02 I Oct.02 Jan-03 M ar.03 Jul.03 Oct.03 I Jan.04 Apr.04 I I City Approves Development Agreement Property Closing I PPC Approval - DCA Sign-off I Demolition and Foundation Construction Building Construction I Garage Opening (partial CO) I I I I Building Completion I I Hotel Opening I Bridge Construction I I I I I Brldae ODenlna I I I I I I . . . Section 6 Marriott Seashell Resort Meeting Clearwater Beach Economic Development Needs Economic Impact Market Value of Project . Hotel - 250 units . Restaurant/Retail . Garage - 1000 Spaces Total Property Taxes and Other Impacts . Increase in Tax Base . Increase in Property Tax Revenue . City Portion - Property Tax . Sales Taxes . Permanent Job Generation 17 $ 45 Million $ 12 Million $ 18 Million $ 75 Million $64.2 Million $ 1.4 Million. $ 350,000 $1.4 Million 316 FTE . Section 7 Marriott Seashell Resort Meeting Clearwater Beach Economic Development Needs Project Team The following team of professionals have joined together to develop the project: . Team Leader - Bill Kimpton Partner, Kimpton, Burke, White & Heydon PA Practice Area - Real Estate Development Planning - Richard Gehring & Jim Egnew Partners, Prime Interests Inc., Dunedin, FL Development Management and Planning Construction Management - Vin Hoover President, Hoover Companies of Kentucky, Corbin, KY General Contractor, Developer and Construction Manager Developer - Jae Heinberg President, Bella Vista Group, Inc., Tampa, FL Developer and Finance . 19 . Hotel Operator - Brian Moulton Vice President, Hotel Development Marriott International, Inco, Atlanta, GA Architect - Merrill Demian-St. Leger Project Architect Cooper Carry Associates, Atlanta, GA Legal_O Steve Szabo Project Attorney Annis, Mitchell, Cockey, Edwards & Roehn PA, Tampa, FL Parking Analyst - Mark Pratt Regional Vice President Republic Parking System, Chattanooga . . 20 . ~:~_~"~ '~'1 The Tides Beach Club, North Redington Beach . The Sanctuary, Sanibellsland . Pelican Isle Yacht Club, Our principals experience and success includes some of the Gulf Coast's most prestigious addresses. Vizcaya, Longboat Key . Section 8 Marriott Seashell Resort Meeting Clearwater Beach Economic Development Needs Development Agreement . . 21 . . . Development Agreement DRAFT dated 11/06/2000 DEVELOPMENT AGREEMENT FOR PROPERTY IN THE CITY OF CLEARWATER between THE CITY OF CLEARWATER, FLORIDA, and CLEARWATER SEASHELL RESORT, LC Dated as of ,2000 Page i . ARTICLE 1. TABLE OF CONTENTS DEFINITIONS ..................................................................................... 2 Section 1.01 Definitions............................................................................................. 2 Section 1.02 Use of Words and Phrases ........................... ................. .......................... 3 Section 1. 03 Florida Statutes ...................................................................................... 3 ARTICLE 2. Section 2.01 Section 2.02 Section 2.03 ARTICLE 3. Section 3.01 Section 3.02 Section 3.03 Section 3.04 . ARTICLE 4. Section 4.01 ARTICLE 5. Section 5.01 Section 5.02 Section 5.03 Section 5.04 ARTICLE 6. Section 6.01 Section 6.02 Section 6.03 ARTICLE 7. Section 7.01 Section 7.02 . Development Agreement DRAFI'dated 11/06/2000 PURPOSE, PROPOSAL, PROJECT SCHEDULE AND MUTUAL UNDERTAKINGS ............................................................................... 3 Purpose of Agreement ............................................................................ 3 Proposed Project .................................................................................... 4 Cooperation of the Parties ...................................................................... 4 REGULATORY PROCESS ...... ................... ........ ............................... 5 Land Development Regulations.................. ............................................ 5 Development Approvals and Permits ...................................................... 5 Concurrency........................................................................................... 6 Not a Development Order or Permit ....................................................... 6 PLANS AND SPECIFICATIONS ....................................................... 7 Preparation of Plans and Specifications .................................................. 7 PROJECT DEVELOPMENT .............................................................. 7 Ownership of Project Site....................................................................... 7 Project Site............................................................................................. 7 City's Obligations .................................................................................. 7 Covenant of Unified Use .. ................................. ..................................... 9 PROJECT FINANCING ..................................................................... 9 Notice of Project Financing to City.......................................... .............. 9 Copy of Default Notice to City ............................................................... 9 City Option to Pay Mortgage Debt or Purchase Project .......................... 9 CONSTRUCTION OF THE PROJECT ........................................... 10 Project Site........................................................................................... 10 Construction of the Proj ect ................................................................... 11 Page ii . . . ARTICLE 8. INDEMNIFICATION.................................................................................... 14 Section 8.01 Indemnification by ClealWater Seashell Resort, LC .............................. 14 Section 8.02 Indemnification by the City .................................................................. 15 Section 8.03 Limitation of Indemnification .............................................................. 15 ARTICLE 9. REPRESENTA TIONS, WARRANTIES AND COVENANTS OF CLEARWATER SEASHELL RESORT, LC ................................... 16 Section 9.01 Representations and Warranties ............................................................ 16 Section 9.02 Covenants ...................... .......................... ............ ................. ............... 17 ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY ................................................................................................... 19 Section 10.01 Representations and Warranties ............................................................ 19 Section 10.02 Covenants ............................................................................................ 20 ARTICLE 11. CONDITIONS PRECEDENT ..... ...................................................... 21 Section 11.01 CleaIWater Seashell Resort, LC Acquiring Project Site ........................ 21 Section 11.02 City Conveying Project Site ................................................................. 22 Section 11.03 Construction of Project......................................................................... 22 Section 11.04 Responsibilities of the Parties for Conditions Precedent ....................... 22 ARTICLE 12. DEFAULT; TERMINATION ................. ... .................................. ...... 22 Section 12.01 Project Default by CleaIWater Seashell Resort, LC ............................... 22 Section 12.02 Default by the City ............................................................................... 24 Section 12.03 Obligations, Rights and Remedies Cumulative ..................................... 26 Section 12.04 Non-Action on Failure to Observe Provisions of this Agreement .......... 26 Section 12.05 Termination ......................................................................................... 26 Section 12.06 Termination Certificate ........................................................................ 28 ARTICLE 13. RIGHT TO CONTEST ................................ ...... ...... .......................... 28 Section 13.01 Right to Contest ......................~............................................................ 28 Section 13 .02 Conditions.......................... .................................................................. 29 ARTICLE 14. ARBITRA nON ................................................................................. 29 Section 14.01 Agreement to Arbitrate ......................................................................... 29 Development Agreement D RAFf dated 11/06/2000 Page ill . . . Section 14.02 Appointment Arbitrators ...................................................................... 29 Section 14.03 General Procedures .............................................................................. 31 Section 14.04 Majority Rule ....................................................................................... 31 Section 14.05 Replacement of Arbitrator..................................... ............................... 31 Section 14.06 Decision of Arbitrators ......................................................................... 31 Section 14.07 Expense of Arbitration ......................................................................... 32 Section 14.08 Accelerated Arbitration ........................................................................ 32 Section 14.09 Applicable Law........... ........ ..................... ........... ................................. 33 Section 14.10 Arbitration Proceedings and Records .................................................... 33 ARTICLE 15. UNAVOIDABLE DELAY ................................................................. 33 Section 15.01 Unavoidable Delay............................................................................... 33 ARTICLE 16. RESTRICTIONS ON USE ................................................................ 34 Section 16.01 Project.................................................................................... .............. 34 ARTICLE 17. FIRE OR OTHER CASUALTY; CONDEMNATION ..................... 34 Section 17.01 Loss or Damage to Project ...................................... ............... .............. 34 Section 17.02 Partial Loss or Damage to Proj ect ........................................................ 35 Section 17.03 Project Insurance Proceeds ....................... ...... .................... .............. .... 35 Section 17.04 Notice of Loss or Damage to Project .................................................... 35 Section 17.05 Condemnation of Project or Project Site; Application of Proceeds ....... 35 ARTICLE 18. MISCELLANEOUS ........................................................................... 36 Section 18.01 Assignments............................................................... ......... ................. 36 Section 18.02 Successors and Assigns ........................................................................ 37 Section 18.03 Notices ................................................................................................. 37 Section 18.04 Applicable Law and Construction ........................................................ 38 Section 18.05 Venue; Submission to Jurisdiction ........................................................ 38 Section 18.06 Estoppel Certificates ............................................................................ 38 Section 18.07 Complete Agreement; Amendments ..................................................... 39 Section 18.08 Captions ................................. .............................................................. 39 Section 18.09 Holidays............................................................................................... 39 Section 18.10 Exhibits................................................................................................ 39 Section 18.11 No Brokers ..............................:............................................................ 39 Section 18.12 Not an Agent of City............................................................................ 40 Section 18.13 Memorandum of Development Agreement ........................................... 40 Section 18.14 Public Purpose ....................... ........... ................................................... 40 Section 18.15 No General Obligation ...................... ................................................... 40 Section 18.16 Technical Amendments; Survey Corrections ........................................ 40 Development Agreement DRAFT dated 11/06/2000 Page iv . . . Section 18.17 Term; Expiration; Certificate ............................................................... 40 Section 18.18 Effective Date ....... ........ ................ ........ ... ..... ...... ........ ............. ............ 41 Section 18.19 Approvals Not Unreasonably Withheld .................................... ...... ...... 41 Development Agreement DRAFT dated 11/06/2000 Page v . . . EXHmITS Legal Description of Controlled Property ................................................................................. A Project Site............................................................................................................................... B Project Description................................................................................................................... C List of Required Permits & Approvals ..................................................................................... D Public Improvements (Realignment of South Gulfview and Pedestrian Overpass) .................... E Right-of-Way Resolution ......................................................................................................... F Cafe Seating License................................................................................................................ G Covenant of Unified Use .......................................................................................................... H Memorandum of Agreement for Development and Disposition of Property .............................. I Development Agreement DRAFT dated 11/06/2000 Page vi . This Agreement for Development of Property (the "Agreement") is made as of this _ day of , 2000, by and between THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the "City"), and Clearwater Seashell Resort, LC, a Florida limited liability company. WITNESSETH: WHEREAS, the City of Clearwater has embarked on a community revitalization effort known as One City, One Future; WHEREAS, one of the major elements of One City, One Future is implementation of the Clearwater Beach Strategies for Revitalization ("CBSR"); WHEREAS, the CBSR identifies a need for additional public parking on Clearwater Beach; WHEREAS, the CBSR calls for the removal and replacement of surface parking spaces located to the west of South Gulfview; WHEREAS, Clearwater Seashell Resort, LC has proposed to develop a mixed use project on certain property fronting on South Gulfview and has proposed to include at least five hundred and fifty (550) parking spaces; . WHEREAS, it is necessary that the City take certain actions in order to make it possible for Clearwater Seashell Resort, LC to develop the Project Site in accordance with the goals and objectives of the CBSR, which actions include the construction of certain public improvements including street and sidewalk improvements and beautification; WHEREAS, the City has conducted such hearings as are required by and in accordance with Chapter 163.3220 et seQ. Fla. Stat. and applicable law; WHEREAS, the City has conducted such hearings as are required by applicable law to vacate the rights-of-way, as provided in this Agreement; WHEREAS, the City has determined that as of the Effective Date of this Agreement, the proposed development is consistent with the City's Comprehensive Plan and Land Development Regulations; WHEREAS, at a duly called public meeting on , the City Commission approved this Agreement, and authorized and directed its execution by the appropriate officials of the City; and WHEREAS, the Board of Directors of Clearwater Seashell Resort, LC has approved this Agreement and has authorized certain individuals to execute this Agreement on its behalf. . Development Agreement DRAFT dated 11/06/2000 Page 1 . . . 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. "CBSR" or "Plan" means the Strategic Redevelopment Plan for Clearwater Beach dated 1998. 3. "City" means the City of Clearwater, Florida, a Florida municipal corporation. 4. "City Commission" means the governing body of the City. 5. "Closing Date" means the date of closing on the City Parking Garage (see Section 5.03(4)). 6. "Commencement Date" means the date on which Clearwater Seashell Resort, LC commences or causes a Contractor to commence construction (see Section 7.02(a)). 7. "Completion Date" means the date on which the lasst cerrificate of Occupancy required for the Proiect is issued. 8. "Construction Completion" means the date a Construction Completion Certificate is issued (see Section 7.03(6)). 9. "Controlled Property" means those properties within the Project Site which are subject to a purchase contract in favor of Clearwater Seashell Resort, LC or an affiliate or nominee on the Effective Date of this Agreement (see Section 5.01) which are more particularly described in the legal description set out in Exhibit A to this Agreement. 10. "Developer" means, for the purposes of this Agreement, Clearwater Seashell Resort, LC and its successors and assigns as provided in Article 18. 11. "Effective Date" means the date of approval and execution of this Agreement. 12. "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. Development Agreement DRAFT dated 11/06/2000 Page 2 . . . 13. "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. 14. "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. 15. "Project" means, collectively, the concept of development proposed by Clearwater Seashell Resort, LC as described in Section 2.02 of this Agreement and Exhibit C. 16. "Project Site" means the land area generally bounded by the western right-of-way of Coronado Street, on the north by [the southern boundary of the Spyglass property], on the south by [the northern boundary of the Legends property], and on the west by the Gulf of Mexico, which is more particularly described and depicted on Exhibit B (see Section 5.02). 17. "Termination Date" means the date a termination certificate is issued pursuant to Section 12.06. 18. "Termination for Cause" means a termination which results from an uncured, material breach of the Agreement. 19. "Unavoidable Delay" means a delay as described in Article 15 hereof. 20. "Vacation of Rights of Way" means the abandonment of the right of way of Third Street between the right of way of Coronado and the centerline of the existing right of way of South Gulfview and the eastern half of the existing right of way of South Gulfview within the Project Site by the City in favor of Clearwater Seashell Resort, LC, in order that the goals and objectives of the Plan may be better accomplished. 1.02. Use ofW ords 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 (1999), as amended from time to time. ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT. 2.01. Purpose of Agreement. The purpose of this Agreement is to further the implementation of the CBSR by providing for the development of the Project Site and the Development Agreement DRAFT dated 11/06/2000 Page 3 . . . 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 Plan and as authorized by and in accordance with the provisions of Florida law. 2.02. Project. 1. The project shall include public parking, private parking, hotel and retail uses. The intensity of each use shall be: a. In the event that the City of Clearwater is successful in obtaining all required approvals for an amendment to the City of Clearwater Comprehensive Plan which designates portions of Clearwater Beach as a Primary Activity Center, including the Project Site, pursuant to the Pinellas County CountyWide Planning Rules, which authorizes an increase in hotel unit density: Public parking - at least 550 spaces Private parking - at least 300 spaces and no more than 500 spaces Hotel - 250 units Retail- not more than 50,000 square feet offioor area b. In the event that the City of Clearwater is not successful in obtaining all required approvals for an amendment to the City of Clearwater Comprehensive Plan which designates portions of Clearwater Beach as a Primary Activity Center, including the Project Site, pursuant to the Pinellas County CountyWide Planning Rules, which authorizes an increase in hotel unit density: Public parking - at least 550 spaces Private parking - at least 300 spaces and no more than 500 spaces Hotel - 68 units Retail- not more than 50,000 square feet offioor area. 2. Project Benefits and Public Interest. The proposed Project for the Project Site, specifically including the acquisition of the Controlled Property by Clearwater Seashell Resort, LC 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 Plan, (2) to conform to the provisions of Florida law, (3) to be in the best interests of the citizens of the City, (4) Development Agreement DRAFT dated 11/06/2000 Page 4 . to further the purposes and obiectives of the City, and (6) to further the public interest on Clearwater Beach. 2.03. Cooperation of the Parties. The City and Clearwater Seashell Resort, LC recognize that the successful development of the Project and each component thereof is dependent upon the continued cooperation of the City and Clearwater Seashell Resort, LC, 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. REGULA TORY PROCESS. 3.01. Land Development Regulations. 1. Land Use Designation. The Project Site is designated Tourist District in the City's Land Development Regulations. 2. Amendments to Comprehensive Plan & Land Develo?ment Regulations. The City agrees to amend the Comprehensive Plan as may be required to carry out the Project as described in Section 2.02(l)(a) and seek designation of the Beach as a Primary Activity Center pursuant to Pinellas County Planning Council Rules; and, in the event this designation is obtained, the City will approve the Project Site with the maximum number of hotel units permitted, in accordance with applicable law. . 3.02 Development Approvals and Permits. 1. Applications for Development Approval. Clearwater Seashell Resort, LC 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 expedite review of all applications, including foundation permits, to the extent possible. A list of all permits and approvals required for this Agreement is attached as Exhibit D. The failure of this Agreement to address a particular permit, condition, term of restriction shall not relieve Clearwater Seashell Resort, LC of the necessity of complying with the law governing said permitting requireme,nts, conditions, terms or restrictions. . 2. City Cooperation and Assistance. The City shall cooperate with Clearwater Seashell Resort, LC in obtaining all necessary Permits required for the construction, completion and opening for business of the Project. If requested by Clearwater Seashell Resort, LC and authorized by law, the City will join in any application for Development Agreement DRAFT dated 11/0612000 Page 5 . . any Permit, or, alternatively, recommend to and urge any governmental authority to which application for any Permits has been made that such Building Permit or Permits be issued or approved. 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 Citis 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 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 processes and in accordance with applicable provisions of law. 4. Application and Impact Fees. The City shall use its best efforts to secure or provide any lawfully available waivers of application and impact fees under existing laws and regulations which are applicable to the Project for the benefit of Clearwater Seashell Resort, LC. In the event that the City is unable to secure or provide waiver of any impact fees, the City shall use its best efforts within the limits of the applicable law to allocate impact fees collected from Clearwater Seashell Resort, LC to public improvements which are described in Exhibit E to this Agreement. 3.03. Concurrency. 1. Concurrency Required. The parties hereto recognize and acknowledge that Florida law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, collectively the "Growth Management Act") imposes restrictions on development if adequate public improvements are not available concurrently with that development to absorb and handle the demand on public services caused by development. The City has created and implemented a system for monitoring the effects of development on public services within the City. Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC commences construction within the initial three (3) year period. The City Development Agreement DRAFT dated 11/06/2000 Page 6 . . . . recognizes and acknowledges that Clearwater Seashell Resort, LC will rely upon such reservation in proceeding with the Project. 3. Required Public Facilities. In addition to the obligations of the City and Clearwater Seashell Resort, LC set out in Article 5 of this Agreement, the following public facilities and services are necessary to service the development: Water and Sanitary Sewer: The Water Utilities Department of the City will provide potable water service and sanitary sewer service to the Site. Any new facilities and services will be constructed by the City and the cost of the construction will be borne by the City. 3.04. Not a Development Order or Permit. The City and Clearwater Seashell Resort, LC hereby acknowledge, agree and represent that this Agreement is not intended to be and should not be construed or deemed to be a "development order" or development permit" within the meaning of those terms in Section 163.3164, Florida Statutes. ARTICLE 4. PLANS AND SPECIFICATIONS. 4.01. Plans and Specifications. 1. Responsibilitv for Preparation of Plans and Specifications. Clearwater Seashell Resort, LC shall be solely responsible for and shall pay the cost of preparing, submitting and obtaining approval of the Plans and Specifications. 2. Use of Qualified Professionals. Clearwater Seashell Resort, LC shall retain qualified professionals to prepare the Plans and Specifications and shall cause such professionals to prepare the Plans and Specifications. 3. Approval of Plans and Specifications. The City agrees to diligently proceed with and complete its review of the Plans and Specifications, and respond to the Clearwater Seashell Resort, LC as soon as reasonably possible after receipt thereof and advise Clearwater Seashell Resort, LC in writing of the City's comments and objections, if any, thereto. The City shall notify Clearwater Seashell Resort, LC in writing within fifteen (15) days of receipt that the Plans and Specifications have or have not been approved, and in the case of disapproval, the specific reason(s) for such disapproval. If the Plans and Specifications submitted to the City by Clearwater Seashell Resort, LC substantially comply with this Agreement and further the purposes of the Plan, the City shall approve the Plans and Specifications as submitted. ARTICLE 5. PROJECT DEVELOPMENT. 5.01. Ownership of Project Site. Clearwater Seashell Resort, LC is the contract purchaser of certain parcels of land within the Project Site which is more particularly described in Exhibit B to this Agreement ("Controlled Property"). Development Agreement DRAFT dated 11/06/2000 Page 7 . 5.02. Project Site. The Project Site consists of those properties located in an area which is bounded by the western right-of-way of Coronado Street, on the north by [the southern boundary of the Spyglass property], on the south by [the northern boundary of the Legends property], and on the west by the Gulf of Mexico as more particularly described in Exhibit B. 5.03. City's Obligations. 1. Vacation of Rights-of-Way. Contemporaneously with the approval of this Agreement, the City Commission shall adopt a resolution vacating the right-of-way of 3rd Street between Coronado and the centerline of the existing right of way South Gulfview and the eastern half of the existing right-of-way of South Gulfview immediately to the west of the Project Site as shown on Exhibit F, conveying the City's right, title and interest therein, free and clear ofliens and encumbrances in a form and manner such that the right, title and interest is an insurable title, subject only to Permitted Exceptions such vacation shall become effective immediately upon Clearwater Seashell Resort, LC taking title to the Controlled Property. 2. Road and Sidewalk Improvements. The City shall realign South Gulfview between 151 Street and _ Street and remove the existing parking in accordance with the realignment of South Gulfview from the Beach at the City's expense substantially in accordance with Exhibit E. Such realignment shall be completed no later than September 1. 2002. . 3. Parking Garage. Clearwater Seashell Resort, LC shall sell and the City shall purchase at least five hundred and fifty (550) parking spaces on the Project Site constructed by Clearwater Seashell Resort, LC, subject to the terms of Section 5.03(4) of this Agreement. The spaces to be conveyed shall be contiguous and shall be located as close as possible to the point or points of access closest to the beach. The City shall operate the City-owned portion of the parking garage as public parking. The project will be managed by a Condominium Association, [which will subcontract management of the garage to a quality professional parking garage operator.] In addition, at the request of the Developer. the City shall provide conduit financing for an additional one hundred to four hundred (100-400) parking spaces at the City's cost of borrowing for taxable bonds. 4. Purchase Terms of Public Parking. The City shall pay Clearwater Seashell Resort, LC an amount equal to $17,900 per parking space conveyed to the City. The City agrees to make progress payments to Clearwater Seashell Resort, LC up to a maximum of seventy-five percent (75%) of the amount to be paid for the parking spaces, as follows: . a. Twenty-five percent (25%) of the seventy-five percent (75%) upon the issuance of a building permit for the Project, the recording of a Declaration Development Agreement DRAFT dated 11/06/2000 Page 8 . of Condominium which authorizes construction of the garage, delivery of a Certificate of Financing for the Project to the City and the placement in escrow of title to the parking spaces being conveyed to the City. b. Twenty-five percent (25%) of the seventy-five percent (75%) upon the filing with the City of a sworn statement that the parking garage component of the project is twenty-five percent (25%) complete. c. Twenty-five percent (25%) of the seventy-five percent (75%) upon the filing with the City of a sworn statement that the parking garage component of the project is fifty percent (50%) complete. d. Twenty-five percent (25%) of the seventy-five percent (75%) upon the filing with the City of a sworn statement that the parking garage component of the project is seventy-five percent (75%) complete. The balance of the consideration for the garage shall be supplied upon issuance of a Certificate of Occupancy and the delivery of title to the parking spaces being conveyed to the City ("Closing Date"). 5. Authority for Cafe Seating. The City shall provide Clearwater Seashell Resort, LC with a long term license or other appropriate approval, for a period of thirty (30) years with optional renewals. authorizing the use of portions of the west thirty-five (35) feet of the South Gulfview right-of-way existing on the Effective Date of this Agreement for outdoor cafe seating in accordance with the terms of the license attached as Exhibit G. . 6. Pedestrian Overpass Approval. The City shall grant Clearwater Seashell Resort, LC the authority to construct a pedestrian overpass, to be dedicated to the public, from the parking garage constructed by Clearwater Seashell Resort, LC across Gulfview Drive to public land, as shown on Exhibit E. 7. Concessions. The City shall grant the Developer authority to operate concessions on land to the west of the existing centerline of South Gulfview subject to any existing franchise or concession rights and compliance with all requirements of the City Code. Such concessions may include a facility for hotel guests only that provide towels, lockers, minimal beach sundries, chairs, and other beach gear required to operate a first-class beach hotel. Such facility may be built into the beach landing portion of the pedestrian overpass. 5.04. Obligations of Clearwater Seashell Resort, LC. . 1. Covenant of Unified Use. Clearwater Seashell Resort, LC 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 Development Agreement DRAFT dated 11/06/2000 Page 9 . used as a unified mixed use project, which is attached as Exhibit H; provided however, that nothing shall preclude Clearwater Seashell Resort, LC from holding all or a portion of the Controlled Property in a condominium form of ownership. 2. Proiect Obligations. Clearwater Seashell Resort, LC agrees to carry out the redevelopment of the Project Site by completing the purchase of all of the Controlled Property, preparing project plans and specifications, obtaining approvals by governmental authorities necessary for development of the Project, constructing various private improvements on the Project Site and operating the Project as a unified and integrated project. Clearwater Seashell Resort, LC shall take all actions necessary to maintain control of the Project Site until the Site is turned over to the Condominium Association. 3. Dedication of Right-of-Way. Upon request of the City, Clearwater Seashell Resort, LC shall dedicate 25' of right-of-way to the City along the western boundary of Coronado in order to facilitate the widening of Coronado. . 4. Primary Activity Deed Restrictions. In the event that density is allocated to the Project Site through the Primary Activity Center designation, in accordance with the provisions of Section 3.01(b) of this Agreement, Clearwater Seashell Resort, LC shall provide such deed restrictions or covenants, in a form acceptable to the City Attorney, as may be required for such designation. ARTICLE 6. PROJECT FINANCING. 6.01. Notice of Project Financing to City. As soon as Clearwater Seashell Resort, LC shall have obtained any financing for any portion of the Project, Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC for the Project. 6.02. Copy of Default Notice to City. Clearwater Seashell Resort, LC covenants and agrees that any Project Construction Financing documents shall include provisions which provide that in the event any Project Financing shall become due and payable by maturity or acceleration, the Project Lender shall give written notice thereof to the City by certified mail, return receipt requested. Such notice from the Project Lender to the City shall state the basis of the default by Clearwater Seashell Resort, LC and shall include copies of any pleadings in any proceeding instituted by the Project Lender(s) incident thereto. 6.03. City Option to Pay Mortgage Debt or Purchase Project. . 1. Assignment of Mortgage. Any mortgage instrument pertaining to any portion of the Project Site in effect prior to issuance of the Construction Completion Certificate for such portion of the Project Site shall provide that following a failure of Clearwater Seashell Resort, LC to repay any Project Financing which shall become due and Development Agreement DRAFT dated 11/06/2000 Page 10 . 2. . payable by maturity or acceleration, the City is entitled, upon giving reasonable written notice to Clearwater Seashell Resort, LC, the Project Lender(s) and any other holder of such a mortgage, to an assignment of the mortgage securing the Construction Financing by paying to the Project Lender an amount of money not to exceed a sum equal to the amount of money advanced by the Project Lender(s) to Clearwater Seashell Resort, LC with respect to the Project Site, together with unpaid accrued interest on such amount, prepayment penalties, and all other accrued charges of the Project Lender(s) (including, without limitation, reasonable attorneys' fees incurred as a result of a default by Clearwater Seashell Resort, LC under the Proj ect Construction Financing). Entitlement to Conveyance. If prior to the issuance of a Construction Completion Certificate, the ownership of any part of the Project located thereon has vested in a Project Lender(s) or any other person by foreclosure or any other action in lieu thereof, the City shall be entitled, at its election exercisable within sixty (60) days after the Project Lender(s) or other person obtains or receives title to the Project Site or part of the Project Site by notice to such Project Lender(s) or other person, to a conveyance of the Project Site or that part of the Project for which ownership has vested in the Project Construction Lender or other person to the City upon payment to the Project Lender(s) or other person of an amount not greater than the sum of (i) the larger of the money advanced by the Project Lender(s) or other person to Clearwater Seashell Resort, LC with respect to that Parcel and due and owing at the time of the foreclosure or any other action in lieu thereof or the amount paid at foreclosure, less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings; (ii) all reasonable expenses of the Project Lender(s) or other person incurred in connection with the foreclosure of the Parcel or part of the Project; (iii) the expense, if any, incurred by the Project Lender(s) or other person in and as a direct result of the subsequent management of the Project; (iv) any prepayment penalties and (v) an amount equivalent to the interest that would have accrued on the aggregate of such amount had all such amounts become part of the money advanced by the Project Lender (s) or other person to Clearwater Seashell Resort, LC with respect to the Project Site and such money advanced had continued to be due and owing; and less income resulting from the management of the Project subsequent to the termination of foreclosure proceedings or the date that the Project Lender(s) or other person obtained title to the Project Site by deed in lieu of foreclosure, whichever is the earlier. ARTICLE 7. CONSTRUCTION OF THE PROJECT. 7.01. Project Site. . 1. Site Work. Clearwater Seashell Resort, LC shall be responsible for all site investigation, environmental testing, demolition and site clearing. Development Agreement DRAFT dated 11/06/2000 Page 11 . 2. Radon Disclosure. As required by Section 88.285, Florida Statutes, the following notice is hereby given to Clearwater Seashell Resort, LC as the prospective purchaser of the Controlled Properties which may have buildings located on them, and Clearwater Seashell Resort, LC acknowledges receipt of such notice: IIRadon Gasll: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risk to persons who are exposed to it over time. Levels of radon that exceed Federal and State Guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may, be obtained from your county public health unit. II 7.02. Construction of the Project. 1. Commencement. Clearwater Seashell Resort, LC shall construct the Project substantially in accordance with the Plans and Specifications therefor. Clearwater Seashell Resort, LC shall commence construction within one (1) year after the amendment to the City's Comprehensive Plan designating this Project Site as a part of a Primary Activity Center as provided for in Section 3.01 of this Agreement ("Commencement Date") and shall thereafter diligently pursue completion of the Project. . a. For purposes of this Section 7.02, IIcommence construction II 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. b. All obligations of Clearwater Seashell Resort, LC (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). Clearwater Seashell Resort, LC 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. Mter the Commencement Date, Clearwater Seashell Resort, LC shall continue, pursue and prosecute the construction of the Project with due diligence to completion, and shall not at any time actually or effectively have abandoned (or its Contractor having actually or effectively abandoned) the Project Site. For purposes of this subsection (b), "abandonedll means to have ceased any construction work which effectively advances the construction of the Project toward completion, including removing all or substantially all of the construction work force from the Project Site. . Development Agreement DRAFT dated 11/06/2000 Page 12 - . 3. Payment of Contractors and Suppliers. Clearwater Seashell Resort, LC shall promptly pay, or arrange to be paid, all moneys due and legally owing to all persons or organizations doing any work or furnishing any materials, fuel, machinery or supplies to Clearwater Seashell Resort, LC or any Contractors in connection with construction of any part of the Project. There shall not be a breach of this Section 7.02 unless and until a lien is filed against the Parcel or that part of the Project being developed or constructed thereon and the Clearwater Seashell Resort, LC fails to comply with the requirements of this Section. 4. Mechanic's and Materialmen's Liens. The payment by Clearwater Seashell Resort, LC of the amount required to satisfy any liens against the Parcel or the part of the Project which Clearwater Seashell Resort, LC is responsible for developing under this Agreement shall be subject to the Right to Contest as provided in Article 13. If, however, because of any act or omission of Clearwater Seashell Resort, LC or any Contractor or subcontractor, any mechanics' or materialmen's lien or other lien for labor, material, fuel, machinery or supplies shall be filed against the Project, the Project Site, or any building, structure or improvement thereon or lands thereunder, Clearwater Seashell Resort, LC shall promptly cause the same to be canceled and discharged of record, bonded off or insured against by the Title Company. 5. Maintenance of Construction Site. During the construction of the Project, Clearwater Seashell Resort, LC shall, at its own expense, keep the Project and all lands owned by Clearwater Seashell Resort, LC within the Project Site in good and clean order and condition, and Clearwater Seashell Resort, LC shall promptly make all necessary or appropriate repairs, replacements and renewals thereof, whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen. All repairs, replacements and renewals shall be equal in quality and class to the original work. When making such repairs, replacements or renewals, Clearwater Seashell Resort, LC shall comply with all laws, ordinances, codes and regulations then applicable to that part of the Project or the Parcel on which it is being developed. Clearwater Seashell Resort, LC shall have the right, after written notice to the City, to contest by appropriate legal proceedings conducted in good faith, the validity or applicability of any such law, ordinance, code or regulation, and to delay compliance therewith pending the prosecution of such proceeding, provided that such contest shall be in accordance with the Right to Contest provisions of Article 13. 7.03 Construction Completion Certificate. . 1. For purposes of this Section 7.03, "completion, "complete," "substantially complete" or "substantial completion" means, with respect to construction of part of the 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 Development Agreement DRAFT dated 11/06/2000 Page 13 . . portion of the Project has been deemed completed by the Project Lender under the Construction Financing therefor. 2. Upon the substantial completion of the construction of each part of the Project in accordance with the provisions of the Plans and Specifications, Clearwater Seashell Resort, LC shall prepare and execute the Construction Completion Certificate, which shall then be delivered to the City. Upon receipt of the certificate, the City shall promptly and diligently proceed to determine if construction of the Project has been completed substantially in accordance with the Plans and Specifications and this Agreement. Upon making such a determination, the City shall execute the certificate and return it to Clearwater Seashell Resort, LC. The date of the Construction Completion Certificate shall be the date when all parties shall have executed said certificate. 3. The Construction Completion Certificate shall constitute a conclusive determination by the parties hereto of the satisfaction and termination of the obligations of Clearwater Seashell Resort, LC hereunder to construct 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. 4. If the City shall refuse or fail to execute the Construction Completion Certificate after receipt of a request by Clearwater Seashell Resort, LC to do so, then the City shall, within ten (10) days after its receipt of such request, provide Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC to satisfy such objections so that the City would sign the certificate. Upon Clearwater Seashell Resort, LC satisfying the City's objections, then Clearwater Seashell Resort, LC shall submit a new request to the City for execution of the Construction Completion Certificate and that request shall be considered and acted upon in accordance with the procedures in this Section for the original request. 5. If the City refuses to execute the certificate and Clearwater Seashell Resort, LC does not agree with the objections set forth in the City's statement, then Clearwater Seashell Resort, LC may invoke the arbitration procedures set forth in Article 14 hereof for the purpose of determining ifihe prerequisites for execution by all parties of the Construction Completion Certificate have been met, and if not, what actions must be taken to satisfy such prerequisites. 6. The Construction Completion Certificate shall be in a form sufficient to be recorded in the public records of Pine lIas County, Florida. After execution by the City, it shall be promptly returned to Clearwater Seashell Resort, LC who shall record the Development Agreement DRAFf dated 11/06/2000 Page 14 . . . . 7.04 7.05 certificate in the public records of Pin ell as County, Florida, and pay the cost of such recording. 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. Construction Staging Area. The City agrees to allow Developer to use an area of the existing surface parking lot located to the west of the Project Site which is designated by the City for construction staging during construction of the Project. ARTICLE 8. INDEMNIFICATION. 8.01. Indemnification by Clearwater Seashell Resort, LC. 1. Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC, its agents, employees or contractors arising out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such services. 2. Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC, as the case may be, of any representations or warranties contained in Section 9.01, or covenants contained in Section 9.02. 3. Clearwater Seashell Resort, LC's indemnity obligations under subsections (a) and (b) shall survive the earlier of the Termination Date or the Expiration Date, but shall apply only to occurrences, acts, or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. 4. Clearwater Seashell Resort, LC'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. Development Agreement DRAFT dated 11/06/2000 Page 15 . 8.02. Indemnification by the City. 1. To the extent permitted by law, the City agrees to indemnify, defend and hold harmless, Clearwater Seashell Resort, LC, its respective officers, and employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of, any act or omission of the City, its respective agents or employees arising out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such services. 2. The City shall indemnify, defend and hold harmless Clearwater Seashell Resort, LC, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the City, as the case may be, of any representations or warranties contained in Section 10.01, or covenants contained in Section 10.02. . 3. The City's indemnity obligations under this Section 10.02 shall survive the earlier of the Termination Date or the Expiration Date, 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 oflndemnification. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations of Clearwater Seashell Resort, LC (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. Development Agreement DRAFT dated 11/06/2000 Page 16 . ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF CLEARWATER SEASHELL RESORT, LC. 9.01. Representations and Warranties. Clearwater Seashell Resort, LC 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. Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC, each document contemplated or required by this Agreement to which Clearwater Seashell Resort, LC 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, Clearwater Seashell Resort, LC, 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 Clearwater Seashell Resort, LC (iii) contravenes or results in any breach of, default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of Clearwater Seashell Resort, LC under any indenture, mortgage, deed of trust, bank loan or credit agreement, Clearwater Seashell Resort, LC' s Articles ofIncorporation, or, any other agreement or instrument to which Clearwater Seashell Resort, LC is a party or by which Clearwater Seashell Resort, LC may be bound. 3. This Agreement and, to the extent such documents presently exist in a form accepted by the City and Clearwater Seashell Resort, LC, each document contemplated or required by this Agreement to which Clearwater Seashell Resort, LC is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of Clearwater Seashell Resort, LC enforceable against Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC threatened actions or proceedings before any court or administrative agency against Clearwater Seashell Resort, LC, or against any controlling shareholder, officer, employee or agent of Clearwater Seashell Resort, LC which question the validity of Development Agreement DRAFT dated 11/06/2000 Page 17 . . . . 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 Clearwater Seashell Resort, LC. 5. Clearwater Seashell Resort, LC has filed or caused to be filed all federal, state, local and foreign tax returns, if any, which were required to be filed by Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC. 6. All financial information and other documentation, including that pertaining to the Project or Clearwater Seashell Resort, LC, delivered by Clearwater Seashell Resort, LC to the City was, on the date of delivery thereof, true and correct. 7. The principal place of business and principal executive offices of Clearwater Seashell Resort, LC is in Dunedin. Florida, and Clearwater Seashell Resort, LC will keep records concerning the Project (such as construction contracts, financing documents and corporate documents) and all contracts, licenses and similar rights relating thereto at an office in Pinellas or Hillsborough Counties. 8. As of the Effective Date, Clearwater Seashell Resort, LC 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. Clearwater Seashell Resort, LC 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. Clearwater Seashell Resort, LC covenants with the City that until the earlier of the Termination Date or the Expiration Date: 1. Clearwater Seashell Resort, LC shall timely perform or cause to be performed all of the obligations contained herein which are the responsibility of Clearwater Seashell Resort, LC to perform. 2. During each year that this Agreement and the obligations of Clearwater Seashell Resort, LC under this Agreement shall be in effect, Clearwater Seashell Resort, LC 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, Clearwater Seashell Resort, LC. Development Agreement DRAFT dated 11/06/2000 Page 18 . . 3. Clearwater Seashell Resort, LC shall assist and cooperate with the City to accomplish the development of the Project by Clearwater Seashell Resort, LC in accordance with the Plan and Specifications, and this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts or agreements that are or will be applicable thereto. 4. Subsequent to the Effective Date, Clearwater Seashell Resort, LC 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, Clearwater Seashell Resort, LC's financial capability to successfully and completely develop, construct and complete the Project as contemplated hereby. 5. Clearwater Seashell Resort, LC 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, Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC retains a controlling interest in the consolidated or merged corporation, and will promptly notify the City of any changes to the existence or form of the corporation or any change in the controlling shareholders, officers or directors of Clearwater Seashell Resort, LC. 7. Other than sales and assignments contemplated by this Agreement, Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 after the Closing Date necessary for construction of the Project to commence and continue, Clearwater Seashell Resort, LC 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, Clearwater Seashell Resort, LC 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. Development Agreement DRAFT dated 11/06/2000 Page 19 . . 10. Provided all conditions precedent thereto have been satisfied or waived as provided herein, Clearwater Seashell Resort, LC shall design, construct and complete the Project such that it is substantially complete as provided in this Agreement no later than the Project Completion Date. ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY . 10.01. Representations and Warranties. The City represents and warrants to Clearwater Seashell Resort, LC that each of the following statements is currently true and accurate and agrees that Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC, 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 Clearwater Seashell Resort, LC, 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. . Development Agreement DRAFT dated 11106/2000 Page 20 . . . 4. There are no pending or threatened actions or proceedings before any court or administrative agency against the City, or against any officer of the City, which question the validity of any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the City. 10.02. Covenants. The City covenants with Clearwater Seashell Resort, LC that until the earlier of the Termination Date or the Expiration Date: 1. The City shall timely perform, or cause to be performed, all of the obligations contained herein which are the responsibility of the City to perform. 2. During each year that this Agreement and the obligations of the City under this Agreement shall be in effect, the City shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals, and shall cause to occur those events contemplated by this Agreement that are applicable to and are the responsibility of the City. 3. The City shall assist and cooperate with Clearwater Seashell Resort, LC 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 before the Closing Date, 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 sh~ll notify Clearwater Seashell Resort, LC 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. Development Agreement DRAFT dated 11/06/2000 Page 21 . ARTICLE 11. CONDITIONS PRECEDENT. . . 11.01. Clearwater Seashell Resort, LC Acquiring Project Site. Unless this Agreement has been terminated pursuant to Article 12 hereof, the obligation of Clearwater Seashell Resort, LC to acquire the Project Site is subject to the fulfillment to the satisfaction of, or waiver in writing by, Clearwater Seashell Resort, LC of each of the following conditions precedent: 1. Clearwater Seashell Resort, LC shall have received evidence satisfactory to Clearwater Seashell Resort, LC that the Project Site permits the uses contemplated in this Agreement. 2. The Plans and Specifications as are required for issuance of the Building Permit required to commence construction of the 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. Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC, provided however that the abandonment will not be effective unless and until the Construction Financing Commitment is obtained from Clearwater Seashell Resort, LC as required by Article 6 herein. 5. All Permits and the Building Permit necessary for construction of the Project to commence shall have been issued. 11.02. Construction of Project. Subject to termination of this Agreement pursuant to Article 12, the obligation of Clearwater Seashell Resort, LC to commence construction of the Project on the Commencement Date is subject to the fulfillment to the satisfaction of, or waiver in writing by, Clearwater Seashell Resort, LC 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 Development Agreement DRAFT dated 11/06/2000 Page 22 . 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 Clearwater Seashell Resort, LC. 1. There shall be an "event of default" by Clearwater Seashell Resort, LC pertaining to the entire Project upon the occurrence of anyone or more of the following after the Closing Date: a. Clearwater Seashell Resort, LC shall fail to perform or comply with any material provision of this Agreement applicable to it within the time prescribed therefor, after receipt of a notice from the City pursuant to Paragraph 12.02(2)(a); or b. Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC or any material part of such entity's properties; or . c. Within sixty (60) days after the commencement of any proceeding by or against Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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. a. If an event of default by Clearwater Seashell Resort, LC described in subsection (1) above shall occur, the City shall provide written notice thereof to Clearwater Seashell Resort, LC, and, if such event of default shall not be cured by Clearwater Seashell Resort, LC within thirty (30) days after receipt of the written notice from the City specifying in reasonable detail the event of default by Clearwater Seashell Resort, LC, or if such event of default is of such nature that it cannot be completely cured within such time period, then Development Agreement DRAFT dated 11/06/2000 Page 23 . if Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of the City being required, but such approval will be required if the curative period is to be extended beyond six (6) months (after the notice of default has been given by the City to Clearwater Seashell Resort, LC and such extended curative period may be ended by the City electing to do so upon any Project Lender finding Clearwater Seashell Resort, LC to be in default of any Project Financing and the curative period therefor has expired without such event of default being cured) then, in addition to any remedy available under Section 12.05, the City may terminate this Agreement or pursue any and all legal or equitable remedies to which the City is entitled, provided, however, if Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC. . 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 Clearwater Seashell Resort, LC'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 under Section 6.03 to cure a default under Subsection 12.01(1) by Clearwater Seashell Resort, LC, 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 Clearwater Seashell Resort, LC of notice from the City of its election to cure under Section 6.03, be deemed then assigned to the City making said election, without necessity of any other action being taken or not taken by any party hereto. Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC shall vacate the Parcel(s). . Development Agreement DRAFT dated 11/06/2000 Page 24 . 4. Notwithstanding any provision of this Section, a default by Clearwater Seashell Resort, LC shall not affect the title of any condominium unit or common area conveyed by Clearwater Seashell Resort, LC to an unrelated third party or to a condominium association which is not controlled by Clearwater Seashell Resort, LC. 12.02. Default by the City. 1. Provided Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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, Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC is entitled; provided, however, if the event of default by the City occurs on or prior to the Closing Date, any monetary recovery by Clearwater Seashell Resort, LC in any such action shall be limited to bona fide third-party out of- pocket costs and expenses, including reasonable attorneys' fees, incurred by Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC. . . b. Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 Development Agreement DRAFT dated 11/06/2000 Page 25 . period or such longer period promptly, diligently and in good faith proceed to cure such event of default after receipt of the notice from Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC may proceed with its available remedies without providing any additional notice to the City. c. Any attempt by Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC'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 Clearwater Seashell Resort, LC'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 Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC may lawfully be entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in, the performance of its obligations by Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or provision. 12.05. Termination. . 1. Clearwater Seashell Resort, LC 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 Development Agreement DRAFT dated 11/06/2000 Page 26 . 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, this Agreement may be terminated as provided in subsection (3) of this section by the City or Clearwater Seashell Resort, LC after the occurrence of any of the following events or conditions (except for subsection (b), in which event only Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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. . Development Agreement DRAFT dated 11/06/2000 Page 27 . 4. 5. . In the event of a termination pursuant to this Section 12.05, neither Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC 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. In the event that Clearwater Seashell Resort, LC shall terminate this Agreement prior to commencing construction of the Project, Clearwater Seashell Resort, LC shall assign all right title and interest in the Project to the City. If this Agreement is terminated by Clearwater Seashell Resort, LC for cause as provided for in Section 12.02, the City shall pay Clearwater Seashell Resort, LC, as consideration for Clearwater Seashell Resort, LC's right title and interest in the Project Site, an amount equal to all reasonable costs incurred by Clearwater Seashell Resort, LC in regard to the Project including the value of professional services devoted to the Project by the principals of Clearwater Seashell Resort, LC. If the termination is not for cause as provided in Section 12.02, the City shall pay and Clearwater Seashell Resort, LC shall accept an amount equal to Clearwater Seashell Resort, LC's actual out-of-pocket costs, not including the value of the professional services of the principals of Clearwater Seashell Resort, LC. 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. ARTICLE 13. RIGHT TO CONTEST. 13.01. Right to Contest. Subject to the conditions set forth in Section 13.02 below, the City or Clearwater Seashell Resort, LC each may, at its sole discretion and expense, after prior written notice to the other parties hereto, contest by appropriate action or proceeding Development Agreement DRAFf dated 11106/2000 Page 28 . . 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 Clearwater Seashell Resort, LC, 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; . 3. 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; 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 2. 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. Development Agreement DRAFT dated 11/06/2000 Page 29 . 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 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 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, Development Agreement DRAFT dated 11/06/2000 Page 30 . . 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 Clearwater Seashell Resort, LC, Clearwater Seashell Resort, LC covenants and agrees to comply with any decision of the arbitrator(s) promptly after the date of receipt by Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC not otherwise provided for herein. Development Agreement DRAFT dated 11/06/2000 Page 31 . 14.07. Expense of Arbitration. The expenses of any arbitration proceeding pursuant to this part shall be borne equally by the parties to such proceeding, provided, however, for the purpose of this Section 14.07, "expenses" shall include the fees and expenses of the arbitrators and the American Arbitration Association with respect to such proceeding, but shall not include attorneys' fees or expert witness fees, or any costs incurred by attorneys or expert witnesses, unless (and to the extent) agreed to by the parties to such proceeding, which in the absence of such Agreement shall be the responsibility of the party incurring such fees or costs. 14.08. Accelerated Arbitration. 1. . a. If any of the parties to any arbitration proceeding under this part determines the matter for arbitration should be decided on an expedited basis, then after an initial election to invoke arbitration pursuant to Section 14.02 hereof has been made, either party to such proceeding may invoke accelerated arbitration by giving notice thereof to the other parties no later than three (3) days after arbitration has been initially invoked and the other parties do not object within three (3) days thereafter. b. Accelerated arbitration, for purposes of this Section 14.08, shall be accomplished by either party notifying the American Arbitration Association (or any successor organization thereto) that the parties have agreed to a single arbitrator, qualified to decide the matter for arbitration, to be appointed by the American Arbitration Association (or any successor organization thereto) with the consent of the parties to such proceeding within three (3) days after receipt of the request and to decide such matter within five (5) days after such appointment. 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 ap'ply, unless the parties mutually agree to an extension of such time period. 2. Clearwater Seashell Resort, LC 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. . Development Agreement DRAFT dated 11/06/2000 Page 32 . 14.10. Arbitration Proceedings and Records. Any arbitration hearing under this article shall be considered a meeting subject to Section 286.011, Florida Statutes, and shall be open to any member of the public. Unless otherwise rendered confidential pursuant to or by the operation of any applicable law or order (other than an order by a sole arbitrator or panel of arbitrators acting under this part), the record of such proceedings shall be a public record under Chapter 119, Florida Statutes. ARTICLE 15. UNA VOIDABLE DELAY. 15.01. Unavoidable Delay. 1. 2. . 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. "Unavoidable Delay" means any of the following events or conditions or any combination thereof: acts of God, acts of the public enemy, riot, insurrection, war, pestilence, archaeological excavations required by law, unavailability of materials after timely ordering of same, epidemics, quarantine restrictions, freight embargoes, fire, lightning, hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement weather (as indicated by the records of the local weather bureau for a five-year period preceding the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73 and 74, Florida Statutes, restoration in connection with any of the foregoing or any other cause beyond the reasonable control of the party performing the obligation in question, including, without limitation, such causes as may arise from the act of the other party to this Agreement, or acts of any governmental authority (except that acts of the City shall not constitute an Unavoidable Delay with respect to performance by the City). 3. An application by any party hereto (referred to in this paragraph (c) and in paragraph (d) as the" Applicant") for an extension of time pursuant to this subsection must be in writing, must set forth in detail the reasons and causes of delay, and must be filed with the other party to this Agreement within seven (7) days following the occurrence of the event or condition causing the Unavoidable Delay or seven (7) days following the Applicant becoming aware (or with the exercise of reasonable diligence should have become aware) of such occurrence. 4. The Applicant shall be entitled to an extension of time for an Unavoidable Delay only for the number of days of delay due solely to the occurrence of the event or condition causing such Unavoidable Delay and only to the extent that any such occurrence actually delays that party from proceeding with its rights, duties and obligations under this Agreement affected by such occurrence. . Development Agreement DRAFT dated 11/06/2000 Page 33 . 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 2.02, shall be permitted unless and until Clearwater Seashell Resort, LC or the person, if other than Clearwater Seashell Resort, LC, intending to so use the Project or Project Site, shall file with the City a request for a release from the restriction imposed by this Section. The Governing Body of the City shall promptly consider such request and either deny the request, approve the request as filed, or approve the request subject to such terms, conditions and limitations as the City may reasonably require. Unless specifically requested and approved, a release of the restriction imposed by this Section shall not release Clearwater Seashell Resort, LC 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 Project Completion Date, and without regard to the extent or availability of any insurance proceeds, Clearwater Seashell Resort, LC 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; provided, however, that nothing contained herein shall obligate Clearwater Seashell Resort, LC to restore any retail tenant's leasehold improvements. 2. The City shall review the Plans and Specifications for such reconstruction or repairs as soon as possible after filing thereof by Clearwater Seashell Resort, LC. 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. 3. . If Clearwater Seashell Resort, LC fails to repair or restore any significantly damaged portion of the Project, the City may, at its election and after thirty (30) days notice to Clearwater Seashell Resort, LC, bring an action in a court of competent jurisdiction to recover title or control of the affected Parcel and repair or restore such damage. The costs incurred by the City in recovering the Parcel and repairing or Development Agreement DRAFT dated 11106/2000 Page 34 . . . restoring the damaged part of the Project shall be recoverable from Clearwater Seashell Resort, LC. 17.02. Partial Loss or Damage to Project. Until the Proiect 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 2.02 of this Agreement, shall not operate to terminate this Agreement or to relieve or discharge Clearwater Seashell Resort, LC from the timely performance and fulfillment of Clearwater Seashell Resort, LC'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, Clearwater Seashell Resort, LC shall promptly make proof ofloss and shall proceed promptly to collect, or cause to be collected, all valid claims which may have arisen against insurers or others based upon such damage or destruction. 2. Subject to the rights of a Project Lender, Clearwater Seashell Resort, LC agrees that all proceeds of property or casualty insurance received by Clearwater Seashell Resort, LC 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. Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC as to the effect of such damage or destruction on the use of the Proj ect, 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 Clearwater Seashell Resort, LC shall be applied first to the restoration of the Project, provided the Project can be restored and be commercially feasible for its intended use as contemplated by Section 16.01 of this Agreement after the taking, and, if not, can be retained by Clearwater Seashell Resort, LC. ARTICLE 18. MISCELLANEOUS 18.01. Assignments. 1. By Clearwater Seashell Resort, LC. Development Agreement DRAFT dated 11/06/2000 Page 35 . . 2. . Development Agreement DRAFT dated 11/06/2000 a. Prior to the Commencement Date, Clearwater Seashell Resort, LC 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, to another party other than provided that such party (hereinafter referred to as the "assignee"), to the extent of the sale, conveyance, assignment or other disposition by Clearwater Seashell Resort, LC to the assignee, shall be bound by the terms of this Agreement the same as Clearwater Seashell Resort, LC for such part of the Project as is subject to such sale, conveyance, assignment or other disposition. b. If the assignee of Clearwater Seashell Resort, LC's right, title, interest and obligations in and to the Project, or any part thereof assumes all of Clearwater Seashell Resort, LC's obligations hereunder for the Project, or that part subject to such sale, conveyance, assignment or other disposition, then Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC to any corporation, limited partnership, general partnership, or joint venture, in which Clearwater Seashell Resort, LC is the or a general partner or has either the controlling interest or through a joint venture or other arrangement shares equal management rights with a financial institution and maintains such controlling interest or equal management rights shall not be deemed an assignment or transfer subject to any restriction on or approvals of assignments or transfers imposed by this Section 18.01, provided, however, that notice of such assignment shall be given by Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC in the absence of such assignment. d. No assignee, purchaser, sublessee or acquire of all or any part of Clearwater Seashell Resort, LC's rights and obligations with respect to anyone Parcel shall in any way be obligated or responsible for any of Clearwater Seashell Resort, LC's obligations with respect to any other Parcel by virtue of this Agreement unless and until such assignee, purchaser, sublessee or acquire has expressly assumed Clearwater Seashell Resort, LC's such other obligations. City's Right to Assign Rights. Clearwater Seashell Resort, LC agrees that the City shall have the unqualified right to assign its rights under Section 5.04 and 6.03 of this Page 36 . . . Agreement to any person, subject only to applicable laws in regard to the disposition of an interest in real property. 18.02. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the City, and its successors and assigns, and Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC: To the City: [insert] [insert] with copies to: with copies to: [insert] [insert] 2. Notices given by courier service or by hand delivery shall be effective upon delivery and notices given by mail shall be effective on the third (3rd) business day after mailing. Refusal by any person to accept delivery of any notice delivered to the office at the address indicated above (or as it may be changed) shall be deemed to have been an effective delivery as provided in this Section 20.03. The addresses to which notices are to be sent may be changed from time to time by written notice delivered to the other parties and such notices shall be effective upon receipt. Until notice of change of address is received as to any particular party hereto, all other parties may rely upon the last address given. 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 Clearwater Seashell Resort, LC and the Agreement, including, without limitation, the Exhibits, shall not be deemed to have been prepared by the City or Clearwater Seashell Resort, LC, but by all equally. 18.05. Venue; Submission to Jurisdiction. 1. F or purposes of any suit action, or other proceeding arising out of or relating to this Agreement, the parties hereto do acknowledge, consent, and agree that venue thereof is Pinellas County, Florida. Development Agreement DRAFT dated 11/06/2000 Page 37 . 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 Clearwater Seashell Resort, LC 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, Clearwater Seashell Resort, LC 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 Clearwater Seashell Resort, LC at the address for notices as provided in 18.03. . 18.06. Estoppel Certificates. Clearwater Seashell Resort, LC 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, arid 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. . Development Agreement DRAFf dated 11/06/2000 Page 38 . 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 Clearwater Seashell Resort, LC hereby represent, agree and acknowledge that no real estate broker or other person is entitled to claim or to be paid a commission as a result of the execution and delivery of this Agreement, including any of the Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any or all of the Project Site. 18.12. Not an Agent of City. During the term of this Agreement, Clearwater Seashell Resort, LC hereunder shall not be an agent of the City with respect to any and all services to be performed by Clearwater Seashell Resort, LC (and any of its agents, assigns, or successors) with respect to the Project. 18.13. Memorandum of Development Agreement. The City and Clearwater Seashell Resort, LC agree to execute, in recordable form, on the Effective Date, the short form "Memorandum of Agreement for Development and Disposition of Property, " the form of which is attached hereto as Exhibit I, and agree, authorize and hereby direct such Memorandum to be recorded in the public records of Pine lias County, Florida, as soon as possible after execution thereof. Clearwater Seashell Resort, LC 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 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 Clearwater Seashell Resort, LC nor any other party under or beneficiary of this Development Agreement DRAFT dated 11/06/2000 Page 39 . 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. 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 ofthis 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. 18.17. 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 Pin ell as County, Florida. Following execution by all of the parties hereto, the Agreement Expiration Certificate shall promptly be recorded by Clearwater Seashell Resort, LC in the public records of Pin ell as County, Florida and Clearwater Seashell Resort, LC shall pay the cost of such recording. 18.18. Approvals Not Unreasonably Withheld. The parties hereto represent that it is their respective intent as of the Effective Date and do covenant and agree in the future that all approvals, consents, and reviews will be undertaken and completed as expeditiously as possible, in good faith, and will not be arbitrarily or unreasonably withheld, unless otherwise expressly authorized by the terms of this Agreement. . Development Agreement DRAFT dated 11/06/2000 Page 40 . IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of this _ day of November, 2000. 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 , 2000 by and , Mayor and City Clerk, respectively, for the City of Clearwater, Florida, on behalf of the City. By: Signature of Notary Public My Commission Expires: Printed, typed or stamp . Development Agreement D RAFT dated 11/06/2000 Page 41 . . . CLEARWATER SEASHELL RESORT, LC Attest: By: By: Secretary President STATE OF FLORIDA ) ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me this _ day of , 2000 by and , President and Secretary, respectively, of Clearwater Seashell Resort, LC, a Florida corporation, on behalf of Clearwater Seashell Resort, LC. By: Signature of Notary Public My Commission Expires: Printed, typed or stamp Development Agreement DRAFT dated 11/06/2000 Page 42 . C:\MY DOCUMENTS\PRIME\CL WR BCH-SEASHELL\KIPTON DIT AGR-9-6REV.DOCDRAFT: Sep' EXHmIT A SEASHELL RESORT LEGAL DESCRIPTION Parcell (Current Site of Glass House Motel) Lot 57, Lot 104, the South 20.0 feet of Lot 56, and the South 20.0 feet of Lot 103, THE LLOYD-WIllIE SKINNER SUBDIVISION, as recorded in Plat Book 13, Page 12, of the Public Records ofPinellas County, Florida. Lot 105, Lot 106, and the North half of Lot 107, TIIE LLOYD. WIDTE SKINNER SUBDMSION, as recorded in Plat Book 13, Page 12, of the Public Records of Pinellas County, Florida * Parcel 2 (Current Site of Beach Place Motel, a Condominium) . Lots 58 and 59, of THE LLOYD-WIITrn SKINNER SUBDIVISION, as recorded in Plat Book 13, Pages 12 and 13, of the Public Records of Pin ell as County, Florida ... Note: The above property is currently subject to a condominium plat indicating that the referenced property is platted as motel condominium units. The condominium plat will be terminated as of closing, and the above stated legal description 'Will remain the legal description of the property. . . EXHIBIT B Project Site . " . - :>lOlH" . . . EXHIBIT C Project Description Development Agreement DRAFT dated 11106/2000 Page 45 . . . Development Agreement DRAFf dated 11/06/2000 EXlllBIT D List of Required Permits & Approvals Page 46 . . . EXHffiIT E Public Improvements (Realignment of South Gulfview and Pedestrian Overpass) Development Agreement DRAFT dated 11/06/2000 Page 47 . . . EXHffiIT F Right-or-Way Resolution Development Agreement DRAFT dated 11/06/2000 Page 48 . . . EXHffiIT G Cafe Seating License Development Agreement DRAFT dated 11/06/2000 Page 49 . . . EXHffiIT H Covenant of Unified Use Development Agreement DRAFT dated 11/06/2000 Page 50 . . . EXBffiIT I Memorandum of Agreement for Development and Disposition of Property Development Agreement DRAFT dated 11/06/2000 Page 51 ~ arrlo I Seashell Beach Resort 250 Rooms Full Service with Conference Center 1000 Parking Spaces 35-45,000 Sq. Ft. Retail Restaurant Destination & Beach Pedestrian Overpass November 2000 Seashell Beach Resort LLC }. .. ~,~~. (} } ~ ,...~. ~- I ;, ... ~'1' I 'l.--:-- .!'!CJ.. .- .' J .::~~