DVA2009-00004 - 311 GULFVIEW BLVD S - SURF STYLE PARKING GARAGE5
DVA2009-00004
311 S GULFVIEW BLVD
URF STYLE PARKING GARAG
PLANNER OF RECORD: WW
ATLAS # 276A
ZONING: T
LAND USE: RFH
RECEIVED : 09/01 /2009
INCOMPLETE:
COMPLETE:
MAPS
PHOTOS:
STAFF REPORT:
DRC:
CDB:
CLWCoverSheet
CDB Meeting Date: December 15, 2009
Case Number: DVA2009-00004 (Related to FLD2009-09032)
Agenda Item: E•2• (,Related to D.4.)
Owner/Applicant: L.O.M., Inc.
Representative: Alex Azan, PE, Keith Zajac & Associates, Inc.
Addresses: 311 S. Gulfview Boulevard Lncludin~ 305, 309 and 315 S. Gulfview
Boulevard and 320 Coronado Drive)
CITY OF CLEARWATER
PLANNING AND DEVELOPMENT DEPARTMENT
STAFF REPORT
GENERAL INFORMATION:
REQUEST: Review of, and recommendation to the City Council, of a
Development Agreement between L.O.M. Inc. (the property
owner) and the City of Clearwater as per Beach by Design and
Community Development Code Section 4-606.
CURRENT ZONING: Tourist (T) District
CURRENT FUTURE
LAND USE CATEGORY: Resort Facilities High (RFH)
BEACH BY DESIGN
CHARACTER
DISTRICT: Beach Walk
PROPERTY USE: Current: Retail Sales and Services of 7,128 square feet of floor
area and a Restaurant of 6,058 square feet of floor area
Proposed: Retail Sales and Services of 34,183 square feet of floor
area, a Restaurant of 6,887 square feet of floor area
and a Parking Garage of 349 parking spaces (including
48 accessory parking spaces for the Retail Sales and
Services and Restaurant uses and 301 public parking
spaces) (0.94 Floor Area Ratio) at a height of 59.5 feet
(to highest parking deck)
EXISTING North: Tourist (T) District
SURROUNDING Mixed Use (overnight accommodations and attached
ZONING AND USES: dwellings) and Parking Garage
South: Tourist (T) District
Overnight accommodations
East: Tourist (T) District
Overnight accommodations and Retail sales and
services
West: Open Space/Recreation (OS/R) District
Clearwater Beach
Community Development Board -December 15, 2009
DVA2009-00004 -Page 1 of 4
ANALYSIS:.
Site Location and Existing Conditions:
The 0.99 acres is located between S. Gulfview Boulevard and Coronado Drive approximately
200 feet south of Third Street. The main portion of the subject property (311 S. Gulfview
Boulevard [including 305, 309 and 315 S. Gulfview Boulevard]} is currently developed with a
retail sales use of 7,128 square feet of floor area (Surf Style) and a restaurant of 6,058 square feet
of floor area (Britt's). The other portion of the subject property (320 Coronado Drive) is
developed with a detached dwelling.
Development Proposal:
The development proposal includes a companion Flexible Development application (FLD2009-
09032) to permit retail sales uses of 34,183 square feet of floor area, a restaurant of 6,887 square
feet of floor area and a parking garage of 349 parking spaces (including 48 accessory parking
spaces for the retail sales and restaurant uses and 301 public parking spaces).
Development Agreement:
The City has been desirous of constructing additional parking to meet the needs of visitors to the
beach. City Council looked at various proposals/sites and decided to negotiate with this
applicant for the construction of parking open to the public on the subject property. The
proposed parking garage with 301 parking spaces open to the public will be constructed by the
developer at their cost. Project financing will be secured by the Retail Unit and the Parking Unit
by the developer, with such financing contingent upon the City entering into a Put Agreement.
Under such Put Agreement, the project lender will have the option of five years from the date of
completion of the project to require the City to purchase the Parking Unit for $9.3 million if the
lender forecloses against the project should the developer default. The City must reserve the $9.3
million during the term of the Put Agreement. The proposed Development Agreement will be in
effect for a period not to exceed five (5) years following the completion date of the project and
includes the following main provisions:
^ Provides for at least 301 parking spaces open to the public, with at least 250 of these spaces
available on an hourly basis;
^ Separates the project into a Retail Unit(s) (total of 38,249 square feet of retail/commercial
floor area on the ground floor consisting of approximately 31,421 square feet of retail space
[does not include the Beach Walk Thru Area], 6,828 square feet of restaurant space and 48
parking spaces on the second floor) and a Parking Unit (301 parking spaces);
^ Includes the formation of a three-unit condominium for the project (one unit for the retail
portion, the 48 associated parking spaces and the delivery area, one for the restaurant
portion and one for the Parking Unit);
^ Includes provisions for the approval by FEMA of a Flood Zone map change from a VE-
Zone to an AE-Zone to allow construction of the Retail Unit on the ground floor of the
building through the construction of a wave dissipating wall within the S. Gulfview
Boulevard right-of--way;
Community Development Board -December 15, 2009
DVA2009-00004 -Page 2 of 4
^ Requires the developer commence construction of the project on or before June 30, 2010;
^ Requires the City review (approval or denial) of the building permit within 30 days of
submission of the permit; and
^ Authorizes cafe seating within the S. Gulfview Boulevard right-of--way.
The Community Development Board (CDB) has been provided with the most recent
Development Agreement.
The City Council may enter into Development Agreements to encourage a stronger commitment
on comprehensive and capital facilities planning, to ensure the provision of adequate public
facilities for development, to encourage the efficient use of resources, and to reduce the
economic cost of development. The CDB is required to review the proposed Development
Agreement and make a recommendation to the City Council.
SUMMARY AND RECOMMENDATION:
The Development Review Committee (DRC) reviewed the application and supporting materials
at its meetings of October 1 and November 5, 2009, and deemed the development proposal to be
legally sufficient to move forward to the CDB, based upon the following:
Findings of Fact: The Planning and Development Department, having reviewed all evidence
submitted by the applicant and requirements of the Community Development Code, finds that
there is substantial competent evidence to support the following findings of fact:
1. That the 0.99 acres is located between S. Gulfview Boulevard and Coronado Drive
approximately 200 feet south of Third Street;
2. That the property is located within the Tourist (T) District and the Resort Facilities High
(RFH) Future Land Use Plan category;
3. That the development proposal is subject to the requirements of Beach by Design and the
Design Guidelines contained therein as the property is located within the Beach Walk
character district.
Conclusions of Law: The Planning and Development Department, having made the above
findings of fact, reaches the following conclusions of law:
1. That the Development Agreement implements and formalizes the requirements for the
construction of on-site and off-site improvements under the related site plan proposal
(FLD2009-09032);
2. That the Development Agreement complies with the standards and criteria of Section 4-606
of the Community Development Code;
3. That the Development Agreement is consistent with and furthers the Visions, Goals,
Objectives and Policies of the Comprehensive Plan; and
4. That the Development Agreement is consistent with the Visions, Goals, Objectives and
Policies of Beach by Design and the Beach Walk character district.
Community Development Board -December 15, 2009
DVA2009-00004 -Page 3 of 4
Based upon the above, the Planning and Development Department recommends the
APPROVAL, and recommendation to the City Council, of a Development Agreement between
L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and
Community Development Code Section 4-606, for the property at 311 S. Gulfview Boulevard
(including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive).
Prepared by Planning and Development DepartmenJt Staff:
V
Wayne M. ells, AICP, Planner III
ATTACHMENTS:
^ Development Agreement with Exhibits
^ Location Map
^ Aerial Map
^ Future Land Use Map
^ Zoning Map
S: IP/nnning DepnrnnentlC D BIFLEX (FLD)IPending cnseslUp for dre nest CDBIDVA2009-00004 - Gulfi~ieiv S 0311 (T) 2009.xr - 12J5.09
CDB - Y{'WIGulfview S 03/1 DVA StnffReport for /2./5.09 CDB.doc
Community Development Board -December 15, 2009
DVA2009-00004 -Page 4 of 4
Wayne M. Wells, AICP
100 South Myrtle Avenue, Clearwater, FL 33756
Phone: 727-562-4504 ~ Email: wayne.~~~ells~:?m~~clear~~~ater.colu
PROFESSIONAL EXPERIENCE
^ Planner III
Planning and Development Department, City of Clearwater, FL November 2001 to Present
As part of the Development Review Division, prepared and presented staff reports for Flexible
Standard Development (staff-level cases), Flexible Development (public hearing cases) and Plats
before the Development Review Committee and the Community Development Board and
Development Agreements before the City Council; Reviewed building permits for Code
conformance; Prepared and/or assisted preparation of Code amendments; Provided public information
(via telephone, mail, email, zoning counter or predevelopment meetings).
^ Zoning Coordinator
Zoning Division, City of Pinellas Park, FL
March 1989 to November 2001
Acting Zoning Director; Represented the Zoning Division on cases and issues before the City
Council, Community Redevelopment Agency, Planning and Zoning Commission, Board of
Adjustment and outside agencies; Prepared and presented staff reports for land use plan amendments,
rezoned, planned unit developments, conditional uses, variances and site plans; Reviewed final site
plans and building permits for Code conformance; Prepared and/or assisted preparation of Code
amendments; Provided public information (via telephone, mail, zoning counter or predevelopment
meetings).
^ Program Manager, Zoning Branch
Manatee County Dept. of Planning and Development, Bradenton, FL June 1984 to March 1989
Trained and supervised three employees; Prepared and presented variances and appeals to the Board
of Zoning Appeals; Coordinated final site plan and building permit review for Code conformance;
Assisted in preparation of Code amendments; Provided public information (via telephone, mail,
zoning counter or predevelopment meetings). Interim Code Enforcement Manager- Managed the
Code Enforcement Section; Supervised six employees; Prosecuted cases before the Code
Enforcement Board; Investigated and prepared cases of alleged violations of land use and building
codes. Planner II, Current Planning Section -Prepared and presented staff reports for rezones,
planned developments, special permits, plats and mobile home parks to Planning Commission and
Board of County Commissioners; Reviewed final site plans and building permits for Code
enforcement; Assisted in preparation of Code amendments; Provided public information (via
telephone, mail, zoning counter or predevelopment meetings).
^ Planner I
Alachua County Dept. of Planning and Development, Gainesville, FL June 1980 to June 1984
Prepared and presented staff reports for rezones and special permits to Planning Commission and
Board of County Commissioners; Reviewed site plans and plats for Code conformance; Assisted in
preparation of Code amendments; Provided public information (via telephone, mail, zoning counter
or predevelopment meetings). Intern -Compiled and coordinated the Alachua County Information
and Data Book; Drafted ordinance revisions; General research.
Graduate Assistant
University of Florida Dept. of Urban and Regional Planning, Gainesville, FL 1979 to 1981
Coordinated downtown study for Mayo, FL; Coordinated graphics for Jefferson County
Comprehensive Plan.
^ Planning Technician
Planning Division, City of St. Petersburg, FL 1977 to 1979
Primarily prepared graphics, for both publication and presentation; Division photographer for 1'/z
years; Worked on historic survey and report.
EDUCATION
Master of Arts in Urban and Regional Planning (Degree not conferred; course work completed, thesis not
completed), University of Florida, 1981
Bachelor of Design in Architecture, University of Florida, 1976
LICENSES & CERTIFICATES
American Institute of Certified Planners
American Planning Association, Suncoast Section
Clearwater
,~ -~ ,~
~, ~'°
Planning Department
100 South Myrtle Avenue
Clearwater, Florida 33756
Telephone: 727-562-4567
Fax: 727-562-4865
^ SUBMIT ORIGINAL SIGNED AND NOTARIZED APPLICATION
^ SUBMIT 12 COPIES OF THE ORIGINAL APPLICATION including folded site plans
^ SUBMIT APPLICATION FEE $
CASE #:
DATE RECEIVED:
RECEIVED BY (staff initials):
ATLAS PAGE #:
ZONING DISTRICT:
LAND USE CLASSIFICATION:
ZONING & LAND USE CLASSIFICATION OF
ADJACENT PROPERTIES:
NORTH:
SOUTH:
WEST:
EAST:
DEVELOPMENT AGREEMENT APPLICATION
(Revised 05/22/02)
PLEASE TYPE OR PRINT
A. APPLICANT, PROPERTY OWNER AND AGENT INFORMATION: (Section 4-202.A)
APPLICANT NAME: L.O.M., Inc.
MAILING ADDRESS: 4100 N. 28th Terrace, Hollywood, FL 33020
PHONE NUMBER: 954-926-6666
CELL NUMBER:
FAX NUMBER954-608-2565
EMAIL ADDRESS:
PROPERTY OWNER(S): L.O.M., Inc.
(Must include ALL owners)
AGENT NAME: Alex L. Azan, P.E.
MAILING ADDRESS: 14001
PHONE NUMBER: 813-205-3615
FAX NUMBER:
B. PROPOSED DEVELOPMENT INFORMATION:
STREET ADDRESS: 311 Gulfview Blvd. & 320 Coronado Drive, Clearwater, FL 33767
LEGAL DESCRIPTION: See Attachment A
PARCEL NUMBER: 07-29-15-52380-000-0600, 07-29-15-52380-000-1100
PARCEL SIZE: 0.99 acres, 43,543 SF
3(~~es, square feet)
PROPOSED USE AND SIZE: space parking garage, retail store and restaurant
(number of dwelling units, hotel rooms or square footage of nonresidential use)
DESCRIPTION OF ANY RELATED REQUEST(S):
See Attachment 8
(approval of a developmentinclude all requested code deviations; e.g. reduction in required number of parking spaces, specific use, etc.)
DOES THIS APPLICATION INVOLVE THE TRANSFER OF DEVELOPMENT RIGHTS (TDR), A P~VIOUSLY APPROVED PLANNED UNIT
DEVELOPMENT, OR A PREVIOUSLY APPROVED (CERTIFIED) SITE PLAN? YES NO (if yes, attach a copy of the applicable
documents)
FI 33760
Page 1 of 5 -Development Agreement Application -City of Clearwater
6.2 DEVELOPMENT AGREEMENTS SUPPLEMENTAL SUBMITTAL REQUIREMENTS: (Section 4-606.B)
An application for approval of a development agreement shall be accompanied by the following (use separate sheets or include in a formal report):
^ STATEMENT OF THE REQUESTED DURATION OF THE DEVELOPMENT AGREEMENT,WHICH SHALL NOT EXCEED TEN YEARS
^ DESCRIPTION OF ALL EXISTING AND PROPOSED PUBLIC FACILITIES AND SERVICES THAT SERVE OR WILL SERVE THE
DEVELOPMENT;
^ DESCRIPTION OF THE USES DESIRED TO BE PERMITTED ON THE LAND, INCLUDING POPULATION DENSITIES AND BUILDING
INTENSITIES AND HEIGHTS;
^ INDENTIFICATION OF ZONING DISTRICT CHANGES, CODE AMENDMENTS THAT WILL BE REQUIRED IF THE PROPOSED DEVELOPME
PROPOSAL WERE TO BE APPROVED;
^ ZONING AND LAND USE CATEGORIES OF ALL ADJOINING PROPERTIES;
^ COMPLETE NAMES AND ADDRESSES OF ALL OWNERS OR PROPERTIES ABUTTING OR LYING WITHIN 200 FEET OF THE SUBJECT
PROPERTY AS CURRENTLY LISTED IN THE COUNTY RECORDS AS OF ONE WEEK PRIOR TO THE FILING OF AN APPLICATION.
C. PROOF OF OWNERSHIP: (Section 4-202.A)
SUBMIT A COPY OF THE TITLE OR DEED TO THE PROPERTY OR PROVIDE OWNER SIGNATURE ON PAGE OF THIS APPLICATION
D. WRITTEN SUBMITTAL REQUIREMENTS: (Section 4-606.G)
^ Provide the following contents to the development agreement, as follows:
Contents. The approved development agreement shall contain, at a minimum, the following information:
a. A legal description of the land subject to the development agreement.
b. The names of all persons having legal or equitable ownership of the land.
c. The duration of the development agreement, which shall not exceed ten years.
d. The development uses proposed for the land, including population densities, building intensities and building height.
e. A description of the public facilities and services that will serve the development, including who shall provide such public facilities and services; i
date any new public facilities and services, if needed, will be constructed; who shall bear the expense of construction of any new public facilities a
services; and a schedule to assure that the public facilities and services are available concurrent with the impacts of the development. T
development agreement shall provide for a cashier's check, a payment and performance bond or letter of credit in the amount of 115 percent of i
estimated cost of the public facilities and services, to be deposited with the city to secure construction of any new public facilities and servic
required to be constructed by the development agreement. The development agreement shall provide that such construction shall be complel
prior to the issuance of any certificate of occupancy.
f. A description of any reservation or dedication of land for public purposes.
g. A description of all local development approvals approved or needed to be approved for the development.
h. A finding that the development approvals as proposed is consistent with the comprehensive plan and the community development coi
Additionally, a finding that the requirements for concurrency as set forth in Article 4 Division 10 of these regulations have been satisfied.
i. A description of any conditions, terms, restrictions or other requirements determined to be necessary by the city commission for the public heal
safety or welfare of the citizens of the City of Clearwater. Such conditions, terms, restrictions or other requirements may be supplemental
requirements in existing codes or ordinances of the city.
j. A statement indicating that the failure of the development agreement to address a particular permit, condition, term or restriction shall not retie
the developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions.
k. The development agreement may provide, in the discretion of the City Commission, that the entire development or any phase thereof
commenced or be completed within a specific period of time. The development agreement may provide for liquidated damages, the denial of futr
development approvals, the termination of the development agreement, or the withholding of certificates of occupancy for the failure of I
developer to comply with any such deadline.
I. A statement that the burdens of the development agreement shall be binding upon, and the benefits of the development agreement shall inure
all successors in interest to the parties to the development agreement.
m. All development agreements shall specifically state that subsequently adopted ordinances and codes of the city which are of general application
not governing the development of land shall be applicable to the lands subject to the development agreement, and that such modifications <
specifically anticipated in the development agreement.
Page 2 of 5 -Development Agreement Application -City of Clearwater
E. SUPPLEMENTAL SUBMITTAL REQUIREMENTS: (Section 4-202.A)
^ SIGNED AND SEALED SURVEY (including legal description of property) -One original and 12 copies;
^ COPY OF RECORDED PLAT, as applicable;
^ PRELIMINARY PLAT, as required;
LOCATION MAP OF THE PROPERTY.
TREE SURVEY (including existing trees on site and within 25' of the adjacent site, by species, size (DBH 4" or greater), and location,
incuding drip lines.)
l~ GRADING PLAN, as applicable;
F. SITE PLAN SUBMITTAL REQUIREMENTS: (Section 4-202.A)
SITE PLAN with the following information (not to exceed 24" x 36"):
_ All dimensions;
North arrow;
Engineering bar scale (minimum scale one inch equals 50 feet), and date prepared;
Location map;
_ Index sheet referencing individual sheets included in package;
_ Footprint and size of all buildings and structures;
All required setbacks;
_ All existing and proposed points of access;
All required sight triangles;
_ Identification of environmentally unique areas, such as watercourses, wetlands, tree masses, and specimen
trees, including description and location of understory, ground cover vegetation and wildlife habitats, etc;
Location of all public and private easements;
Location of all street rights-of-way within and adjacent to the site;
Location of existing public and private utilities, including fire hydrants, storm and sanitary sewer lines, manholes and lift stations, gas
and water lines;
_ All parking spaces, driveways, loading areas and vehicular use areas;
Depiction by shading or crosshatching of all required parking lot interior landscaped areas;
_ Location of all refuse collection facilities and all required screening (min. 10'x12' clear space);
_ Location of all landscape material;
Location of all onsite and offsite storm-water management facilities;
_ Location of all outdoor lighting fixtures; and
Location of all existing and proposed sidewalks.
^ SITE DATA TABLE for existing, required, and proposed development, in written/tabular form:
Land area in square feet and acres;
_ Number of dwelling units proposed;
Gross floor area devoted to each use;
Parking spaces: total number, presented in tabular form with the number of required spaces;
_ Total paved area, incuding all paved parking spaces and driveways, expressed in square feet and percentage of the paved vehicular area;
Size and species of all landscape material;
Official records book and page numbers of all existing utility easement;
_ Building and structure heights
Impermeable surface ratio (I.S.R.); and
Floor area ratio (F.A.R.) for all nonresidential uses.
^ REDUCED SITE PLAN to scale (8 Y= X 11) and color rendering if possible;
^ FOR DEVELOPMENTS OVER ONE ACRE, provide the following additional information on site plan:
One-foot contours or spot elevations on site;
Offsite elevations if required to evaluate the proposed stormwater management for the parcel;
All open space areas;
_ Location of all earth or water retaining walls and earth berms;
Lot lines and building lines (dimensioned);
_ Streets and drives (dimensioned);
Building and structural setbacks (dimensioned);
Structural overhangs;
_ Tree Inventory; prepared by a "certified arborist", of all trees 8" DBH or greater, reflecting size, canopy (drip lines) and condition of such trees.
Page 3 of 5 -Development Agreement Application -City of Clearwater
G. LANDSCAPING PLAN SUBMITTAL REQUIREMENTS: (Section 4-1102.A)
]~ LANDSCAPE PLAN:
(_~ All existing and proposed structures;
Names of abutting streets;
Drainage and retention areas including swales, side slopes and bottom elevations;
_ Delineation and dimensions of all required perimeter landscape buffers;
Sight visibility triangles;
Delineation and dimensions of all parking areas including landscaping islands and curbing;
_ Proposed and required parking spaces;
Existing trees on-site and immediately adjacent to the site, by species, size and locations, including dripline;
_ Location, size, description, specifications and quantities of all existing and proposed landscape materials, including botanical and
common names;
_ Typical planting details for trees, palms, shrubs and ground cover plants including instructions, soil mixes, backfilling, mulching and
protective measures;
_ Interior landscaping areas hatched and/or shaded and labeled and interior landscape coverage, expressing in both square feet and
percentage covered;
Conditions of a previous development approval (e.g. conditions imposed by the Community Development Board);
Irrigation notes.
^ REDUCED LANDSCAPE PLAN to scale (8'/z X 11) (color rendering if possible);
^ IRRIGATION PLAN (required for level two and three approval);
^ COMPREHENSIVE LANDSCAPE PROGRAM application, as applicable.
H. BUILDING ELEVATION PLAN SUBMITTAL REQUIREMENTS: (Section 4-202.A.23)
Required in the event the application includes a development where design standards are in issue (e.g. Tourist and Downtown Districts) or as part
of a Comprehensive Infill Redevelopment Project or a Residential Infill Project.
BUILDING ELEVATION DRAWINGS -all sides of all buildings including height dimensions, colors and materials;
REDUCED BUILDING ELEVATIONS -four sides of building with colors and materials to scale (8 '/= X 11) (black and white and color rendering, if
possible) as required.
I. SIGNAGE: (Division 19. SIGNS /Section 3-1806) ~a~~~~Nrfcn~s~ vC- .SI ~~ ,~ Rp~~, T fie-
^ Comprehensive Sign Program application, as applicable (separate application and fee required). S ~~,, ~ ~~~ ~%l~i~~ Ltca
^ Reduced signage proposal (8'/~ X 11) (color), if submitting Comprehensive Sign Program application. /
J. TRAFFIC IMPACT STUDY: (Section 4-801.C)
~' Include as required if proposed development will degrade the acceptable level of service for any roadway as adopted in the Comprehensive Plan.
Trip generation shall be based on the most recent edition of the Institute of Transportation Engineer's Trip General Manual. Refer to Section 4-801
C of the Community Development Code for exceptions to this requirement.
K. SIGNATURE:
I, the undersigned, acknowledge that all representations made in this
application are true and accurate to the best of my knowledge and
authorize City representatives to visit and photograph the property
described in this application.
Sighature of property er or representative
STATE OF FLORIDA, COUNTY OFf4N6LL4S ~ro~a~
S orn to and subscribed before me this ~ ~ day of
tr A.D. 20~ to me and/or by
who iC nPr~ n~~ll~ Irnnwn haS
produced as
identificatio NOTARY PUBLIC-STATE OF RIDA
~,,,,".,, Lauren We
ECommission#DD6 4429
Notary public, 11 ~~ ~.,, .••` ~ ~~; :, 5: DF.C. 30 2010
My commission expiresl2'I~~ I ~ ~NDED'fHRI::Ci'ia..~ i IC 9UYDING O., INC.
Page 4 of 5 -Development Agreement Application -City of Clearwater
L. AFFIDAVIT TO AUTHORIZE AGENT:
1. That (I am/we are) the owner(s) and record title holder(s) of the following described property (address or general location):
~i / Lam.! r-%t/ ~=~~~' -~ ~ ;? ~' J;z <. ~,i~ ~ U ~~==_
2. That this property constitutes the property for which a request for a: (describe request)
-~ ~-- , ,~ ~~ , J
r~~. ~ :7~ ~`= )" 1 `/~J S i 'J ~ _L., ~ 1=, i / 1~~'r~l~ ~ ~ ~1 U; r/1 rte- l't' ~~"~ ~i~l.. i. C` ~.
/~ / _~ {
3. That the undersigned (has/have) appointed and (does/do) appoint: ' ` l" ~'~ ~ ~Z~- /~ ~ r~ f-
as (his/their) agent(s) to execute any petitions or other documents necessary to affect such petition;
4. That this affidavit has been executed to induce the City of Clearwater, Florida to consider and act on the above described property;
5. That site visits to the property are necessary by City representatives in order to process this application and the owner authorizes City
representatives to visit and photograph the property described in this application;
6. That (I/we), the undersigned authority, hereby certify that the foregoing is true and correct.
Property Owner
STATE OF FLORIDA,
COUNTY OF?ffd'E[D~S ~YO ~a
Before me the undersigned, an officer duly commissioned by th laws of a Statte~o~f~Fllorida, on this
~IOVeVhbtV 20 Dal personally appeared ~V { ~~/QKY ~ I V 1
Deposes and says that he/she fully understands the contents of the affidavit that he/she signed.
NOTARY PI;91.1C-STATE OF FLORIDA '
•"""''-. Lauren Weeks
My Commission Expires: l Z,~.3 Q~l D
Commission #DD624429
'•.,,,,,,,,•' r~,oires: DEC. 30, 2010
iso'dBzB "£f iicF i+if6~i3"t6 B61PIB'~16 CL1, Wr'
s~~.,.: ~ _ yip
I I day of
who hq~ing been first duly sworn
Notary Pu
S:IPlanning DepartmentlApplicafion Formsldevelopment reviewldevelopment agreement application3.doc
Page 5 of 5 -Development Agreement Application -City of Clearwater
Ifl: 2005468543 BK: 14759 PG: 315, 11/23/2005 at 08:52 AM, RECORDING 1 PAGES
$10.00 D DOC BTAMP COLLECTION $5425.00 KEN BURL , CLERK OF COURT PIIiELLA3
COUNTY, FL 13Y DEPUTY CLERK: CLKDM03
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Druid W. GrdSo. P.A.
565 SaM Dimes Aveaue
Ckenvater, t7. 33736
(727) r66.690p Tale
(727)1669'rr7 Fax
Pa8 !•28,31
THIS INDENTURE,
ati.r.y ~.......1.a• ra rrr r. era ~.-.~„r.~
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~~~
Made this (~ T~ day of NOVEMBER, A.D. 2005
Betwaa
EVELYN L. GIBBON, a single woman, whose address is: 105 Holik, College Station, ~exas•'
77840, party of the first part, and ,
~` ~~
L.O.M.,1NC., a Florida corporation, whose mailing address is: 4100 N. 28'" Terrace, Hollywood, _ ,
Florida 33020, party of the second pert, _ _
~`.
Witaesseth, that the said party of the first part, for and is consideratioi}of the sum ol;Tea
Dollars and other good and valuable considerations, to it in bead paid by the sli ~ Of the
second part, the receipt whereof is hereby acknowledged, has graated„~ p d to the
said party ofthe second part forever, the following described Isar, situl{tli I.boing in the
County of Pinellas, State of Florida, to wit: `~ ~ `. ~ ','
.~ `~
_~ `~ `
- ~~
Lot 110, LLOYD-wHITE-SKIMMER SUBD~~ISION, aFco(+d~ to the plat
thereof as recorded in plat Book l3, Pages 12 ~p 13, Pubt~c'~Records of Pinellas
County, Florida .'• ~ ~~ ~ ,
,,
Parcel Identification No.: 07 - 29 -~PSti •~~$q~ - 1100
e/k/a 320 Coronado Drive,~6ltarwater~B~ch, Florida 33767
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And, the Grantor heroby covet~rrts~yitb~seid Grantee that the Grantor is lawfully seized
of said land in fee simple; that thq t~rgntor,llas~ gQe~ right and lawful authority to sell and convry
said land; that the Grantor herelix`full~r lyerrants~ t>;c titic to said land sod will defend the acme
against the lawful claims of,rlfons whomsoever, and that said land is >ra of all
encumbrances, except pyces8ecr0in~sifbsequent to December 31, 2004 and easements end
restrictions of record.
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In Witneae~~ei'eo'f, dte~ party of the first part has caused these presents to be signed
the day ,~ wri
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ie~ K~alf ,witness / ~i~
STATE OF TEXAS
COUNTY OF ~~j
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The foregoing instrument was acknowledged before me this 1~ T~ day of November, 2005
by LAURA J. WQ.SON, Power of Attorney for EVELYN L. GIBBON, who is personally known
to me or wai~owa~l; erpicture I.D, ti csti
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Warranty Deed p INST # 95-269932
OCT 25, 1995 4:37PM
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~~ BET[7BN TO iJ ,Donald O. McFarland, Esquire
~ PBEPABBD BY: YrFYrlsod, Gould, Lyaas i 8u8ivaa, P.A.
9118. Miesourl Avenue
~ t7 Clearwater, Florida 84818
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' Ta Parod No. Parcel 1: 07-29~ 16.62880000.0800
Parcel 2: 07-29-16.6z,980~000.0810
Parcel 8: 07-29-16~62880~000.0820
Parcel ~: 07.29-16.62880-000.1060
Parcel 6: 07.29.1b-62880.000-1090
Gssatarl~ Naase: W.H. Neudedr a/Wa Win6red H. Neudeck
Granteels Naase: L.O.M., INC., a Florida corporation
PINELLAS COUNTY FLA.
OFF. REC.BK 9149 PG 1151
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Property Addremc 309, 811, 816 acrd 919 Gnltsr3ew Blvd., South, Qnrwatar, Flor)da; `~ ` , ;' ~~
and 812 and 918 Coronado Street, t2e.rM-ater, Fioeida ,
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X. Neudecb, a married man, wboac poll o,addnaa ~~ 1Q7~aatee A~tad. Belles'
.err"~iTS'~t~*i,t9 x4676 (lunina~lert.~srrr~d.m a~'~'~nonlar"~ BIND- LO.bI.. ING. a.Florido
eorparation, u-bo~e pwt oJ~Sce addr(ep ia: Kea 11lardalyy Avenue, Cleayw0er, Florida 8d680 (lttncina/ter
nhreeal to as 'Ortrnht'~ , ~ .' `.
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W17'NB.4.4BTH, ~;a ~d'Cjrnntor, for and in caviridsrntiar of !lu sum ~ T6N AND 00/100'S
(j10.00) Dol/as and otkf~-gooal ant(Oaluable oonaidar+adart oa said Onanlor in bard paid by said Oranta,
~ ^~Pt wbertof is fib!' agnowled~pd, bw Brankd, bargainedand sold m fbe Grantee and Ornnree'a
~, a' § and ouignaa foi's%r fXe following described land situate, b+ng and being to Boos , Pr+ge ~anEY.
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~, gall of ~~ 108 and 100, LLOYD-QNPiT1t SUBDIVISION,
~ `~~ .; ` bo~tdtt~~to meP or Plat thereof as recorded IQ Plat Book 18, pages 12
« _ ~ 18; al! of the Pub& Rernrds of PineUes County, Florida. BI7BJEGT
8 . _ _ _- ~; . ~ PROPERTY I9 COMMERCIAI, PROPERTY AND NOT THE
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sect b~Real Properb' taze+ far tJu yea' 1995 and subarquent,yran. Su~jeet do all taaement, rsiavation,
~« ~ ~ '<yr~ckons, and touenanta of record
` Md said Grantor dm
~' /fib' wmr+mst tbs tide to said lmsa; a+sd ugll da fsrrd dre sacra gpainat dre
lmnfal elmrns a f dl persona u-banaaoeur~:
"Grantor' and 'Ortrntee' art wed for singnlor or plural, as eanAe>i! nquirms.
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PINELLAS COUNTY FLA.
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OFF. REC.BK 9144 PG 1152 ~
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~ WB&R80F, Cronfor baa beneusto aet 0-antor'a band and and the dqr and ror first abar , ;
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AGREEMENT FOR DEVELOPMENT OF PROPERTY IN THE
CITY OF CLEARWATER
(SURF STYLE CONDOMINIUM PROJECT)
between
THE CITY OF CLEARWATER, FLORIDA
and
L.O.M., INC.
Dated as of , 2010
v6 MIA 180692234
Table Of Contents
Article 1. DEFINITIONS ................................................................................................2
1.01 Definitions ..........................................................................................................2
1.02 Use of Words and Phrases ................................................................................4
1.03 Florida Statutes .................................................................................................5
Article 2. PURPOSE AND DESCRIPTION OF PROJECT ............................................5
2.01 Finding of Public Purpose and Benefit ...............................................................5
2.02 Purpose of Agreement .......................................................................................5
2.03 Scope of the Project ..........................................................................................5
2.04 Cooperation of the Parties .................................................................................7
Article 3. REGULATORY PROCESS ............................................................................7
3.01 Land Development Regulations .........................................................................7
3.02 Development Approvals and Permits ................................................................7
3.03 Concurrency ......................................................................................................8
Article 4. PLANS AND SPECIFICATIONS ....................................................................9
4.01 Plans and Specifications ...................................................................................9
Article 5. PROJECT DEVELOPMENT ........................................................................ 10
5.01 Ownership of Property ..................................................................................... 10
5.02 City's Obligations ............................................................................................. 10
5.03 Obligations of the Developer ........................................................................... 10
Article 6. PROJECT FINANCING ............................................................................... 11
6.01 Financing ......................................................................................................... 11
6.02 Notice of Project Financing to City ................................................................... 11
6.03 Copy of Default Notice to City .......................................................................... 12
Article 7. INDEMNIFICATION ..................................................................................... 12
7.01 Indemnification by the Developer .................................................................... 12
7.02 Indemnification by the City .............................................................................. 12
7.03 Limitation of Indemnification .............:.............................................................. 13
Article 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
DEVELOPER ...............................................................................................14
8.01 Representations and Warranties .....................................................................14
8.02 Covenants .......................................................................................................15
Article 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
CITY .............................................................................................................16
9.01 Representations and Warranties .....................................................................16
v6 MIA 180692234
9.02 Covenants .......................................................................................................17
Article 10. CONDITIONS PRECEDENT .......................................................................18
10.01 Construction of Project ....................................................................................18
10.02 Responsibilities of the Parties for Conditions Precedent .................................18
Article 11. DEFAULT; TERMINATION ..........................................................................18
11.01 Project Default by the Developer .....................................................................18
11.02 Default by the City ...........................................................................................20
11.03 Obligations, Rights and Remedies Cumulative ................................................21
11.04 Non-Action on Failure to Observe Provisions of this Agreement .....................21
11.05 Termination ......................................................................................................21
11.06 Termination Certificate ....................................................................................22
Article 12. ARBITRATION ............................................................................................23
12.01 Agreement to Arbitrate ....................................................................................23
12.02 Appointment of Arbitrators ...............................................................................23
12.03 General Procedures ........................................................................................24
12.04 Majority Rule ....................................................................................................24
12.05 Replacement of Arbitrator ................................................................................25
12.06 Decision of Arbitrators .....................................................................................25
12.07 Expense of Arbitration .....................................................................................25
12.08 Accelerated Arbitration ....................................................................................25
12.09 Applicable Law ................................................................................................26
12.10 Arbitration Proceedings and Records ..............................................................26
Article 13. UNAVOIDABLE DELAY ...............................................................................26
13.01 Unavoidable Delay ..........................................................................................26
Article 14. FIRE OR OTHER CASUALTY; CONDEMNATION ......................................27
14.01 Loss or Damage to Project ..............................................................................27
14.02 Partial Loss or Damage to Project ...................................................................28
14.03 Project Insurance Proceeds ............................................................................28
14.04 Notice of Loss or Damage to Project ...............................................................29
14.05 Condemnation of Project or Property; Application of Proceeds .......................29
Article 15. MISCELLANEOUS ......................................................................................29
15.01 Assignments ....................................................................................................29
15.02 Successors and Assigns .................................................................................30
15.03 Notices ............................................................................................................30
15.04 Applicable Law and Construction ....................................................................31
15.05 Venue; Submission to Jurisdiction ...................................................................31
15.06 Estoppel Certificates ........................................................................................32
15.07 Complete Agreement; Amendments ................................................................32
15.08 Captions ..........................................................................................................32
15.09 Holidays ...........................................................................................................33
v6 MIA 180692234
15.10 Exhibits ............................................................................................................33
15.11 No Brokers .......................................................................................................33
15.12 Not an Agent of City ........................................................................................33
15.13 Memorandum of Development Agreement ......................................................33
15.14 Public Purpose ................................................................................................33
15.15 No General Obligation .....................................................................................33
15.16 Other Requirements of State Law ...................................................................33
15.17 Technical Amendments ...................................................................................34
15.18 Term; Expiration; Certificate ............................................................................34
15.19 Approvals Not Unreasonably Withheld ............................................................34
15.20 Waiver of Jury Trial ..........................................................................................35
15.21 Effective Date ..................................................................................................35
EXHIBITS
Legal Description of Property .......................................................................................... A
Conceptual Plans for Project .......................................................................................... B
Right-of-Way Area to be Vacated ................................................................................... C
Form of Condominium Documents ................................................................................. D
Public Parking Covenant ................................................................................................. E
Maintenance Easement .................................................................................................. F
Sidewalk and Turn-Lane Easement ................................................................................G
List of Required Permits and Approvals .......................................................................... H
Project Development Schedule .........................................................................................I
City Parking Garage Standards .......................................................................................J
Parking Structure Maintenance Standards ..................................................................... K
'.PUT" Agreement Form ...................................................................................................L
Form of Memorandum of Agreement for Development of Property ................................M
(iii)
v6 MIA 180692234
AGREEMENT FOR DEVELOPMENT OF PROPERTY
(SURF STYLE CONDOMINIUM PROJECT)
This Agreement for Development of Property (Surf Style Condominium Project)
(the "Agreement") is made as of this day of , 2010, by and
between THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the
"C~"), and L.O.M., Inc., a Florida corporation (the "Developer").
WITNESSETH:
WHEREAS, the City of Clearwater has embarked on a community revitalization
effort for Clearwater Beach;
WHEREAS, one of the major elements of the City's revitalization effort is a
preliminary design for the revitalization of Clearwater Beach entitled Beach by Design;
WHEREAS, Beach by Design identifies a need for additional public parking on
Clearwater Beach;
WHEREAS, Beach by Design calls for the construction of Beach Walk and the
removal and replacement of surface parking spaces located to the west of South
Gulfview Boulevard to the south of Pier 60 Park;
WHEREAS, the City has adopted Beach by Design pursuant to the Pinellas
Planning Council's Rules in support of the City's Comprehensive Plan;
WHEREAS, the City desires to encourage and provide for the construction of
301 public parking spaces;
WHEREAS, the Developer proposes to develop amulti-use project on certain
real property located on South Gulfview Boulevard and legally described in Exhibit A
attached hereto (the "Property"), and has proposed to include at least three hundred
and forty nine (349) parking spaces in the project, of which at least three hundred one
(301) spaces shall be open to the public;
WHEREAS, it is necessary that the City take certain actions in order to make it
possible for the Developer to develop the Property in accordance with the goals and
objectives of Beach by Design;
WHEREAS, the City has conducted such hearings as are required by and in
accordance with Chapter 163.3220 F. S. and applicable law;
WHEREAS, the City has determined that as of the Effective Date of this
Agreement, the proposed development is consistent with the City's Comprehensive
Plan and Land Development Regulations;
1
v6 MIA 180692234
WHEREAS, the City has conducted public hearings as required by § 4-206 and
4-606 of the Community Development Code;
WHEREAS, at a duly called public meeting on , 2010, the City
Council approved this Agreement and authorized and directed its execution by the
appropriate officials of the City; and
WHEREAS, the shareholders and/or directors (as appropriate) of the Developer
have approved this Agreement and have authorized certain individuals to execute this
Agreement on its behalf.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.01 Definitions. For purposes of this Agreement, the following terms defined in this
Article 1 shall have the meanings attributed to them below except as herein otherwise
expressly provided:
(1) "Agreement" means this Agreement for Development of Property (Surf
Style Condominium Project), including any Exhibits and any amendments
thereto.
(2) "Agreement Expiration Certificate" means the certificate confirming the
completion of all obligations under this Agreement and expiration of the
term of this Agreement required under Section 15.18, upon the request of
either party.
(3) "Applicable Laws" means any law, enactment, statute, code, ordinance,
administrative order, charter, tariff, resolution, order, rule, regulation,
guideline, judgment, decree, writ, injunction, franchise, permit, certificate,
license, authorization, or other direction or requirement of any
Governmental Authority, political subdivision, or any division or
department thereof, now existing or hereafter enacted, adopted,
promulgated, entered, or issued.
(4) "Beach by Design" or "Plan" means the strategic redevelopment plan for
Clearwater Beach dated 2001 which was adopted by the City Council
pursuant to the provisions of the Pinellas County Planning Councils Rules
for the designation of a Community Redevelopment District, as amended.
(5) "Break Wall" shall have the meaning given to it in Section 2.03(4).
(6) "C~" means the City of Clearwater, Florida, a Florida municipal
corporation.
(7) "City Council" means the governing body of the City.
2
v6 M/A 180692234
(8) "City Parking Garage Standards" means the City's standards for the
construction of City-owned public parking facilities, which standards are
attached hereto as Exhibit J.
(9) "Commencement Date" means the date on which Developer commences
or causes a contractor to commence construction (see Section 5.03(4)),
which date shall occur on or before June 30, 2010.
(10) "Completion Date" means the date on which a temporary or final
certificate of occupancy required for the Project is issued, which date shall
be no later than twenty-four (24) months following the Commencement
Date.
(11) "Conceptual Plans" means the conceptual plans for the Project approved
by the parties attached hereto as Exhibit B.
(12) "Developer" means, for the purposes of this Agreement, L.O.M., Inc., a
Florida corporation and its successors and assigns as provided in Article
15.
(13) "Effective Date" means the date of approval and final execution of the
Agreement by the parties.
(14) "Exhibits" means those agreements, diagrams, drawings, specifications,
instruments, forms of instruments, and other documents attached and
designated as exhibits to, and incorporated in and made a part of, this
Agreement.
(15) "Expiration Date" means the date which is five (5) years following the
Completion Date.
(16) "Flood Zone Change" shall have the meaning given to it in Section
2.03(4).
(17) "Governmental Authority" means any federal, state, county, municipal or
other governmental entity or any instrumentality of any of them, having
jurisdiction over the Project.
(18) "Land Development Regulations" means the Community Development
Code, Comprehensive Plan, Beach by Design and related regulations
applicable to the development of the Project in the City of Clearwater.
(19) "Parking Unit" shall have the meaning given to it in Section 2.03(1).
(20) "Permits" means all land development approvals, permits and consents
required to be granted, awarded, issued, or given by any Governmental
Authority under any Applicable Laws in order for construction of the
3
v6 MIA 180692234
Project, or any part thereof, to commence, continue or be completed. The
term Permits shall include FEMA's approval of the Flood Zone Change.
(21) "Plans and Specifications" means the site plan for the Project to be filed
with the City as required by the Land Development Regulations for the
purpose of review and approval.
(22) "Project" means, generally, the development and construction of a
38,249+/- square foot retail/commercial project with 48 parking spaces,
and a commercial parking garage containing approximately 301 parking
spaces open to the public, as described in Section 2.03(1) of this
Agreement. The Project will consist of the Retail Unit(s) and the Parking
Unit, as more particularly described in this Agreement.
(23) "Project Financing" shall have the meaning given to it in Section 6.01.
(24) "Project Lender" shall have the meaning given to it in Section 6.01.
(25) "Property" means that certain property located at 315 S. Gulf View
Boulevard and 320 Coronado Drive, Clearwater, FL 33767, which is
owned by the Developer or an affiliate or nominee on the Effective Date of
this Agreement (see Section 5.01), which Property is more particularly
described in the legal description attached as Exhibit A to this Agreement.
(26) "Put Agreement" shall have the meaning given to it in Section 6.01.
(27) "Retail Unit(s)" shall have the meaning given to it in Section 2.03(1).
(28) "Termination Date" means the date a termination certificate is issued
pursuant to Article 11.
(29) "Unavoidable Delav" means a delay as described in Article 13 hereof.
(30) "Vacation of Riaht-of-Way" means the abandonment of the eastern half of
the existing right-of-way of South Gulfview Boulevard (approximately 35' in
width) adjacent to the Property by the City, in order that the goals and
objectives of the Comprehensive Plan may be better accomplished. The
35' right-of-way area proposed to be vacated is graphically depicted in
Exhibit C attached hereto.
1.02 Use of Words and Phrases. Words of the masculine gender shall be deemed
and construed to include correlative words of the feminine and neuter genders. Unless
the context shall otherwise indicate, the singular shall include the plural as well as the
singular number, and the word "person" shall include corporations and associations,
limited liability corporations and partnerships, including public bodies, as well as natural
persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and
other equivalent words refer to this Agreement and not solely to the particular portion
thereof in which any such word is used.
4
v6 MIA 180692234
1.03 Florida Statutes. All references herein to Florida Statutes are to Florida Statutes
(2009), as amended from time to time.
ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT.
2.01 Finding of Public Purpose and Benefit. The proposed Project, 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 Land Development Regulations of the City of Clearwater, (2) to conform to the
provisions of Applicable Laws, (3) to be in the best interests of the citizens of the City,
(4) to further the purposes and objectives of the City, (5) to further the public interest on
Clearwater Beach, and (6) to implement Beach by Design for South Gulfview
Boulevard.
2.02 Purpose of Agreement. The purpose of this Agreement is to further the
implementation of Beach by Design by providing for the development of the Property
and increase the available public parking, all to enhance the quality of life and improve
the aesthetic and useful enjoyment of Clearwater Beach and the City, all in accordance
with and in furtherance of the Land Development Regulations of the City of Clearwater
and as authorized by and in accordance with the provisions of Applicable Laws.
2.03 Scope of the Project.
(1) Description of Proiect. The Project shall include a commercial parking
garage, private parking, commercial and retail uses and appropriate
accessory uses and shall be developed in substantial conformity with the
Conceptual Plans. The Project shall consist of a six-story commercial
building on the Property comprised of the following:
(a) Retail Unit(s): 38,249+/- square foot retail/commercial unit(s) on the
ground floor of the building consisting of approximately 31,421
square feet of retail space and 6,828 square feet of restaurant
space, together with a delivery area and approximately 48 parking
spaces on the second floor of the building (collectively, the "Retail
Units "). Notwithstanding the designation of a portion of the
Project as a "Retail Unit", the name alone shall not restrict its use,
as the Retail Unit(s) may be used for any lawful purpose
(b) Parking Unit: 301 parking spaces located on the 2"d through 6cn
floors of the building (the "Parking Unit").
(2) Formation of Condominium. The Developer intends to create athree-unit
commercial condominium for the Project consisting of the above-
described Parking Unit and two (2) Retail Units, one of which will include
6,828 square feet of restaurant space and the other of which will include
the remainder of the Retail Unit as described above (i.e., approximately
31,421 square feet of retail space, 48 parking spaces and the delivery
area). Accordingly, no later than the Completion Date, the Developer shall
5
v6 M/A 180692234
submit the Property to the condominium form of ownership pursuant
Chapter 718 of the Florida Statutes and condominium documents in
substantially the form attached hereto as Exhibit D.
(3) Parking Covenant. No later than the Completion Date, the Developer
shall execute, deliver and record a covenant against the Property in the
Public Records of Pinellas County, Florida, which covenant shall require
that the Project and any future development on the Property include not
less than 301 parking spaces available for public parking to the extent
permitted by Applicable Laws, provided that the City (and/or any other
applicable Governmental Authority) issues a license or permit (as required
by Applicable Law) to the then fee owner of the Property and/or the
Parking Unit, as applicable (or its designated parking operator) to operate
such parking spaces. The requirement for public parking shall apply to the
Project and future developments on the property from the date of the
certificate of occupancy for the Project and such future developments (as
applicable) for the duration of existence of the improvements covered by
such certificate of occupancy. The foregoing parking covenant shall be in
substantially the form of the covenant attached to this Agreement as
Exhibit E.
(4) FEMA Map Revision: The parties hereto acknowledge and agree that the
Developer is currently processing a letter of map revision with FEMA to
change the flood zone for the Property from VE to AE (the "Flood Zone
Change"). The City agrees to cooperate with the Developer and FEMA
requirements in order to accomplish the Flood Zone Change. Specifically,
the City will (a) comply with any requirement for the construction and on-
going maintenance of a so-called "wave dissipating wall" (the "Break
Wall") on the City property lying west of the Property to the east of
Gulfview Boulevard along the promenade, (b) as the fee owner of the
property upon which the Break Wall will be constructed, submit the letter
of map revision to FEMA supporting the Flood Zone Change, (c) advertise
the Flood Zone Change as required by Applicable Law, and (d) in
conjunction with LOM, process the Flood Zone Change in accordance with
the requirements set forth by FEMA in its Conditional Letter of Map
Revision. The Developer will be responsible for and pay all costs
associated with the Flood Zone Change, including the cost of construction
and on-going maintenance of the Break Wall.
(5) Maintenance Easement: The City has provided or will provide an
easement for construction of, access to and from, and maintenance of, the
Break Wall, which easement shall be appurtenant to one or both of the
Retail Unit(s) and shall grant the fee owner of the Retail Unit(s) the
perpetual right to maintain the Break Wall in accordance with the
requirements of FEMA and any other applicable Governmental Authority.
The foregoing easement shall be in substantially the form of the easement
6
v6 MIA 180692234
attached to this Agreement as Exhibit F, and shall be in the location
indicated in said exhibit.
(6) Sidewalk and Turn-Lane Easement. On or before the Completion Date,
the Developer will provide an easement for a sidewalk and turn-lane
encumbering the Property on the east side thereof along Coronado Drive.
The foregoing easement shall be in substantially the form of the easement
attached to this Agreement as Exhibit G, and shall be in the location
indicated in said exhibit.
In the event of a conflict between the terms of this Agreement and the terms of the
specific instruments attached to this Agreement as Exhibits D, E, F or G with respect to
the subject matter of such instruments, the terms of such instruments, which are more
specific and detailed as to the subject matter thereof, shall control
2.04 Cooperation of the Parties. The City and the Developer recognize that the
successful development of the Project and each component thereof is dependent upon
the continued cooperation of the City and the Developer, and each agrees that it shall
act in a reasonable manner hereunder, provide the other party with complete and
updated information from time to time, with respect to the conditions such party is
responsible for satisfying hereunder and make its good faith reasonable efforts to
ensure that such cooperation is continuous, the purposes of this Agreement are carried
out to the full extent contemplated hereby and the Project is designed, constructed,
completed and operated as provided herein.
ARTICLE 3. REGULATORY PROCESS.
3.01 Land Development Regulations. The Property is designated Tourist District in
the City's Land Development Regulations.
3.02 Development Approvals and Permits.
(1) Applications for Development Approval. The Developer shall prepare and
submit to the appropriate Governmental Authority, including the
appropriate divisions and boards of 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 (if any). The City shall,
to the extent possible, review and process the foregoing applications and
permits on an expedited basis. A list of all permits and approvals required
to implement the provisions of this Agreement is attached as Exhibit H.
The failure of this Agreement to address a particular permit, condition,
term or restriction shall not relieve the Developer of the necessity of
complying with the law governing said permitting requirements, conditions,
terms or restrictions.
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(2) Schedule. A Project Development Schedule is attached to this Agreement
as Exhibit I that identifies specific tasks to be completed through the entire
Project and the proposed date for completion.
(3) City Cooperation and Assistance. The City shall cooperate with the
Developer in obtaining all necessary Permits required for the construction,
completion and opening for business of the Project. If requested by the
Developer and authorized by law, the City will join in any application for
any Permit, or, alternatively, recommend to and urge any Governmental
Authority that such Permit or Permits be issued or approved, to the extent
that the work covered by such Permit(s) is not in violation of the terms of
this Agreement.
(4) City Authority Preserved. The City's duties, obligations, or responsibilities
under any section of this Agreement, specifically including, but not limited
to, this Section 3.02, shall not affect the City's right, duty, obligation,
authority and power to act in its governmental or regulatory capacity in
accordance with applicable laws, ordinances, codes or other building
regulations. Notwithstanding any other provision of this Agreement, any
required permitting, licensing or other regulatory approvals by the City
shall be subject to the established procedures and substantive
requirements of the City with respect to review and permitting of a project
of a similar or comparable nature, size and scope. In no event shall the
City, due to any provision of this Agreement, be obligated to take any
action concerning regulatory approvals except through its established
procedures and in accordance with applicable provisions of law.
(5) Impact Fees. The City shall use its best efforts to secure or provide any
lawfully available credits against impact fees applicable to the Project
which are authorized under existing laws and regulations for public
improvements constructed and paid for by the Developer. In the event
that the City is unable to secure a credit against any impact fees, the City
shall use its best efforts, within the limits of Applicable Laws, to allocate
impact fees collected from the Developer to other improvements in the
immediate vicinity of the Property. [Under Review]
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) imposes restrictions on
development if adequate public improvements are not available
concurrently with that development to absorb and handle the demand on
public services caused by development. The City has created and
implemented a system for monitoring the effects of development on public
services within the City. The Developer recognizes and acknowledges that
it may be required to satisfy the Concurrency requirements of Florida law
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and the City's regulations as applied to this Project (if applicable) as part
of the regulatory approval process for the 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 Applicable Laws. The City agrees to reserve
the required capacity in public services to serve the Project for the
Developer and to maintain such capacity until January 30, 2014. The City
recognizes and acknowledges that the Developer will rely upon such
reservation in proceeding with the Project.
(3) Required Public Facilities. In addition to the obligations of the City and the
Developer set out in Article 5 of this Agreement, the Water Utilities
Department of the City will provide potable water service and sanitary
sewer service to the Project.
ARTICLE 4. PLANS AND SPECIFICATIONS.
4.01 Plans and Specifications.
(1) Responsibility for Preparation of Plans and Specifications. The Developer
shall be solely responsible for and shall pay the cost of preparing,
submitting and obtaining approval of the Plans and Specifications for the
Project.
(2) Use of Qualified Professionals. The Developer shall retain qualified
professionals to prepare the Plans and Specifications and shall cause
such professionals to prepare the Plans and Specifications.
(3) Approval of Plans and Specifications for the Commercial Parking Garage
Which is To Be Available to the Public. The City has previously approved
the Conceptual Plans in its regulatory capacity. Exhibit J attached to this
Agreement sets forth the City Parking Garage Standards for parking
garage facilities owned by the City. In order to ensure that the design of
the Parking Unit will meet the City's standards, the Plans and
Specifications for the Project shall be submitted to the City for review and
comment prior to the submission of any application for a building permit,
other than a foundation permit. The City's review of the Plans and
Specifications hereunder in its proprietary (i.e., non-regulatory) capacity
shall be limited to compliance by the Parking Unit with the City Parking
Garage Standards. The City shall notify the Developer in writing within
thirty (30) days following receipt that the Plans and Specifications have or
have not been approved, and in the case of disapproval, the specific
reason(s) for such disapproval. If the Plans and Specifications submitted
to the City by the Developer substantially comply with this Agreement and
have not materially changed from the Conceptual Plans in a manner which
causes the Parking Unit to no longer conform to the City Parking Garage
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Standards, the City shall approve the Plans and Specifications as
submitted. The City's failure to respond to the Developer within said 30-
day period shall be deemed approval.
ARTICLE 5. PROJECT DEVELOPMENT.
5.01 Ownership of Property. The Developer is the owner of the Property.
5.02 City's Obligations.
(1) Vacation of Right-of-Way. The City Council has adopted (or will consider
adopting) an ordinance permanently vacating the eastern half of the
existing right-of-way of South Gulfview Boulevard (approximately 35' in
width) included within or adjacent to the Property, being the area depicted
on Exhibit C. The vacation shall be conditioned on the construction of the
Project. The time period for compliance with the ordinance shall be not
less than [ (___)] months. The City shall execute and
deliver any instruments confirming the Vacation of Right-of-Way as may
be reasonably required by the Developer.
(2) Permits. The City will cooperate and coordinate with the Developer with
regard to all Permit applications, including without limitation those to
federal, state and county agencies, and will facilitate or expedite, to the
greatest extent possible, the Permit approval process.
(3) Authority for Cafe Seating. The City has adopted a regulation authorizing
the use of portions of the west thirty-five (35) feet of the South Gulfview
Boulevard right-of-way existing on the Effective Date of this Agreement for
outdoor cafe seating and associated activities. Note: Regulations for cafe
seating under review.]
5.03 Obligations of the Developer.
(1) The Project. The Developer shall build and operate the Project.
(2) Responsibility for On-Site Costs. The Developer shall be responsible for
all on-site costs relative to the development of the Project, including the
Parking Unit.
(3) Parking. The Developer agrees to make at least three hundred one (301)
parking spaces within the Project available for public parking, of which not
less than two hundred fifty (250) parking spaces will available on an hourly
basis. The Developer may charge the public for use of the parking spaces
in the Parking Unit on terms and rates which are market-based and
commensurate with terms and rates which are in effect for comparable
beachfront, covered parking structures in Florida resort areas. The
Developer agrees, during the term of this Agreement, to maintain the
Parking Unit in a manner consistent with the City's "Parking Structure
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Maintenance Standards" attached hereto as Exhibit K. For purposes of
clarity, it is acknowledged and agreed that the parking spaces included in
the Retail Unit(s) or dedicated to the exclusive use of the Retail Unit(s) are
not subject to the requirements and limitations of this Section.
(4) Commencement of Construction. The Developer shall commence
construction of the Project by June 30, 2010, and shall thereafter diligently
pursue completion of the Project.
ARTICLE 6. PROJECT FINANCING.
6.01 Financing. The Developer intends to finance the development and construction
of the Project through one or more loans (as amended, restated, assigned and renewed
from time to time, the "Project Financing") with third-party lender(s) (collectively, the
"Project Lender"), secured by, inter alia, the Retail Unit(s) and Parking Unit. The Project
Financing shall be contingent upon and the City hereby agrees to enter into a "put"
agreement (the "Put Agreement") between the Project Lender and the City substantially
in the form attached hereto as Exhibit L, with such modifications thereto as may be
reasonably acceptable to the Project Lender and the City. Pursuant to the Put
Agreement, the Project Lender will have the option, for a period of five (5) years
following the Completion Date, to require the City to purchase the Parking Unit for a
purchase price of $9,300,000 if the Project Lender forecloses (by judicial foreclosure,
deed in lieu or otherwise) against the Project following an event of default by the
Developer under the applicable Project Financing documents. The City agrees to
reserve $9,300,000 during the term of the Put Agreement for the purchase of the
Parking Unit as more particularly provided in the Put Agreement. The City shall enter
into the Put Agreement with the Project Lender simultaneously with the closing of the
Project Financing. The structure of the Project Financing and security therefor (whether
through one mortgage, multiple mortgages or otherwise) shall not be limited or
restricted in any way by the terms of this Article 6, provided that the City shall be
required to purchase the Parking Unit only upon the terms and conditions set forth in the
Put Agreement. The Project Lender shall have the ability to assign the Put Agreement
upon the terms and conditions set forth therein, but the City shall have no right to assign
the Put Agreement. The City shall not modify or amend (or consent to a modification or
amendment to) the Put Agreement without the prior written consent of the Developer.
Once the Put Agreement is executed, the City's obligation to purchase the Parking Unit
shall be governed by the Put Agreement and shall not be terminated and/or affected in
any way by a subsequent termination of this Agreement. With respect to the subject
matter of the Put Agreement, the terms of the Put Agreement shall govern and control
over any conflicting or inconsistent terms of this Agreement. Any Project Financing will
be guaranteed by Surf Style Retail Management Inc.
6.02 Notice of Project Financing to City. As soon as the Developer shall have
obtained any financing for the Project, the Developer shall provide the City with a sworn
statement identifying the Project Lender(s) and documenting the type of financing that
the Project Lender(s) has issued in favor of the Developer for the Project.
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6.03 Copy of Default Notice to City. The Developer covenants and agrees that
either the Put Agreement or the Project Financing documents shall include a provision
which provides that in the event any Project Financing secured by the Parking Unit 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 the Developer
and shall include copies of any pleadings in any proceeding instituted by the Project
Lender(s) incident thereto.
ARTICLE 7. INDEMNIFICATION.
7.01 Indemnification by the Developer.
(1) The Developer agrees to indemnify, defend and hold harmless, the City,
its respective agents, officers, or employees from any and all liabilities,
damages, penalties, judgments, claims, demands, costs, losses,
expenses or attorneys' fees through appellate proceedings, for personal
injury, bodily injury, death or property damage arising out of, or by reason
of any act or omission of the Developer, its agents, employees or
contractors arising out of, in connection with or by reason of, the
performance of its obligations covered by this Agreement, or which are
alleged to have arisen out of, in connection with or by reason of, the
performance of such obligations.
(2) The Developer shall indemnify, defend and hold harmless the City, its
officers and employees from any and all liabilities, damages, costs,
penalties, judgments, claims, demands, losses, or expenses (including,
but not limited to, actual attorneys' fees and engineering fees) arising from
or attributable to any breach by the Developer, as the case may be, of any
representations or warranties contained in Section 8.01, or covenants
contained in Section 8.02.
(3) The Developer's indemnity obligations under subsections (1) and (2) of
this Section shall survive the earlier of the Termination Date or the
Expiration Date, but shall apply only to occurrences, acts, or omissions
that arise on or before the earlier of the Termination Date or the Expiration
Date.
(4) The Developer's indemnity hereunder is in addition to and not limited by
any insurance policy and is not and shall not be interpreted as an insuring
agreement between or among the parties to this Agreement, nor as a
waiver of sovereign immunity for any party entitled to assert the defense of
sovereign immunity.
7.02 Indemnification by the City.
(1) To the extent permitted by law, the City agrees to indemnify, defend and
hold harmless, the Developer, its respective officers, and employees from
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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 its obligations covered by this Agreement, or which are
alleged to have arisen out of, in connection with or by reason of, the
performance of such obligations.
(2) The City shall indemnify, defend and hold harmless the Developer, its
officers and employees from any and all liabilities, damages, costs,
penalties, judgments, claims, demands, losses, or expenses (including,
but not limited to, actual attorneys' fees and engineering fees) arising from
or attributable to any breach by the City, as the case may be, of any
representations or warranties contained in Section 9.01, or covenants
contained in Section 9.02.
(3) The City's indemnity obligations under this Section 7.02 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.
(4) 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.
7.03 Limitation of Indemnification. Notwithstanding anything to the contrary
contained herein, with respect to the indemnification obligations of the Developer (as set
forth in Section 7.01) and the City (as set forth in Section 7.02), 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.
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ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE DEVELOPER.
8.01 Representations and Warranties. The Developer represents and warrants to
the City that each of the following statements is currently true and accurate and agrees
the City may rely upon each of the following statements:
(1) The Developer is a Florida corporation duly organized and validly existing
under the laws of the State of Florida, has all requisite power and authority
to carry on its business as now conducted, to own or hold its properties
and to enter into and perform its obligations hereunder and under each
document or instrument contemplated by this Agreement to which it is or
will be a party, is qualified to do business in the State of Florida, and has
consented to service of process upon a designated agent for service of
process in the State of Florida.
(2) This Agreement and, to the extent such documents presently exist in a
form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the Developer is or
will be a party have been duly authorized by all necessary action on the
part of, and have been or will be duly executed and delivered by, the
Developer, and neither the execution and delivery thereof, nor compliance
with the terms and provisions thereof or hereof: (i) requires the approval
and consent of any other party, except such as have been duly obtained
or as are specifically noted herein, (ii) contravenes any existing law,
judgment, governmental rule, regulation or order applicable to or binding
on the Developer, (iii) contravenes or results in any breach of, default
under or, other than as contemplated by this Agreement, results in the
creation of any lien or encumbrance upon any property of the Developer
under any indenture, mortgage, deed of trust, bank loan or credit
agreement, the Developer's Articles of Incorporation, or, on the date of this
Agreement, any other agreement or instrument to which the Developer is
a party or by which the Developer may be bound.
(3) This Agreement and, to the extent such documents presently exist in a
form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the Developer is or
will be a party constitutes, or when entered into will constitute, a legal,
valid and binding obligation of the Developer enforceable against the
Developer in accordance with the terms thereof, except as such
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws from time to time in effect which affect creditors' rights
generally and subject to usual equitable principles in the event that
equitable remedies are involved.
(4) There are no pending or, to the knowledge of the Developer threatened
actions or proceedings before any court or administrative agency against
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the Developer, or against any controlling shareholder, officer, employee or
agent of the Developer which question the validity of this Agreement or
any document contemplated hereunder, or which are likely in any case, or
in the aggregate, to materially adversely affect the consummation of the
transactions contemplated hereunder or the financial condition of the
Developer.
(5) All financial information and other documentation, including that pertaining
to the Project or the Developer, delivered by the Developer to the City
was, on the date of delivery thereof, true and correct in all material
respects.
(6) As of the Effective Date, the Developer will have the financial capability to
carry out its obligations and responsibilities in connection with the
development of the Project as contemplated by this Agreement.
(7) The Developer has the experience, expertise, and capability to develop,
cause the construction, and complete the Project and, oversee and
manage the design, planning, construction, completion and opening for
business of the Project.
8.02 Covenants. The Developer covenants with the City that until the earlier of the
Termination Date or the Expiration Date (unless an earlier date is specified, in which
case such earlier date shall control):
(1) The Developer shall timely perform or cause to be performed all of the
obligations contained herein which are the responsibility of the Developer
to perform.
(2) During each year that this Agreement and the obligations of the Developer
under this Agreement shall be in effect, the Developer shall cause to be
executed and to continue to be in effect those instruments, documents,
certificates, permits, licenses and approvals and shall cause to occur
those events contemplated by this Agreement that are applicable to, and
that are the responsibility of, the Developer.
(3) The Developer shall use commercially reasonable efforts to accomplish
the development of the Project by the Developer in accordance with the
Plans and Specifications, and this Agreement, and will not violate any
laws, ordinances, rules, regulations, orders, contracts or agreements that
are applicable thereto.
(4) Subsequent to the Effective Date, the Developer shall maintain its
financial capability to develop, construct and complete the Project and
shall promptly notify the City of any event, condition, occurrence, or
change in its financial condition which materially adversely affects, or with
the passage of time is likely to materially adversely affect, the Developer's
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financial capability to successfully and completely develop, construct and
complete the Project as contemplated hereby.
(5) Subject to Section 15.01, from the Effective Date through the Completion
Date, the Developer shall maintain its existence, will not dissolve or
substantially dissolve all of its assets and will not consolidate with or
merge into another corporation, limited partnership, or other entity or
permit one or more other corporations or other entity to consolidate with or
merge into it without the prior approval of the City unless the Developer
retains a controlling interest in the consolidated or merged corporation,
and will promptly notify the City of any changes to the existence or form of
the corporation or any change in the controlling shareholders, officers or
directors of the Developer.
(6) Other than sales and assignments contemplated by this Agreement, the
Developer shall not sell, lease, transfer or otherwise dispose of all or
substantially all its assets without adequate consideration and will
otherwise take no action which shall have the effect, singularly or in the
aggregate, of rendering the Developer unable to continue to observe and
perform the covenants, agreements, and conditions hereof and the
performance of all other obligations required of Developer by this
Agreement.
(7) Provided all conditions precedent thereto have been satisfied or waived as
provided herein, the Developer shall design, construct and complete the
Project such that it is substantially complete as provided in this Agreement
no later than the Completion Date.
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE CITY.
9.01 Representations and Warranties. The City represents and warrants to the
Developer that each of the following statements is currently true and accurate and
agrees that the Developer may rely on each of the following statements:
(1) The City is a validly existing body corporate and politic of the State of
Florida, has all requisite corporate power and authority to carry on its
business as now conducted and to perform its obligations hereunder and
under each document or instrument contemplated by this Agreement to
which it is or will be a party.
(2) This Agreement and, to the extent such documents presently exist in a
form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the City is or will be
a party have been duly authorized by all necessary action on the part of,
and have been or will be duly executed and delivered by, the City, and
neither the execution and delivery thereof, nor compliance with the terms
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and provisions thereof or hereof (i) requires the approval and consent of
any other party, except such as have been duly obtained or as are
specifically noted herein, (ii) contravenes any existing law, judgment,
governmental rule, regulation or order applicable to or binding on the City,
(iii) contravenes or results in any breach of, or default under or, other than
as contemplated by this Agreement, results in the creation of any lien or
encumbrance upon any property of the City under any indenture,
mortgage, deed of trust, bank loan or credit agreement, applicable
ordinances, resolutions or, on the date of this Agreement, any other
agreement or instrument to which the City is a party, specifically including
any covenants of any bonds, notes, or other forms of indebtedness of the
City outstanding on the Effective Date.
(3) This Agreement and, to the extent such documents presently exist in a
form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the City is or will be
a party constitute, or when entered into will constitute, legal, valid and
binding obligations of the City enforceable against the City in accordance
with the terms thereof, except as such enforceability may be limited by
public policy or applicable bankruptcy, insolvency or similar laws from time
to time in effect which affect creditors' rights generally and subject to usual
equitable principles in the event that equitable remedies are involved.
9.02 Covenants. The City covenants with the Developer that until the earlier of the
Termination Date or the Expiration Date (unless an earlier date is specified, in which
case such earlier date shall control):
(1) The City shall timely perform, or cause to be performed, all of the
obligations contained herein which are the responsibility of the City to
perform.
(2) During each year that this Agreement and the obligations of the City under
this Agreement shall be in effect, the City shall cause to be executed and
to continue to be in effect those instruments, documents, certificates,
permits, licenses and approvals, and shall cause to occur those events
contemplated by this Agreement that are applicable to and are the
responsibility of the City.
(3) The City shall assist and cooperate with the Developer to accomplish the
development of the Project in accordance with this Agreement and the
Plans and Specifications, will carry out its duties and responsibilities
contemplated by this Agreement, and will not violate any laws, ordinances,
rules, regulations, orders, contracts, or agreements that are 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
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indebtedness, that will result in any provision of this Agreement to be in
violation thereof.
(4) The City shall not request or recommend any rezoning of the Property, or
any part thereof, or any change in the Comprehensive Plan, which will
prevent or adversely affect the development of the Project.
(5) The City shall maintain its financial capability to carry out its
responsibilities as contemplated by this Agreement and shall notify the
Developer of any event, condition, occurrence, or change in its financial
condition which materially adversely affects, or with the passage of time is
likely to materially adversely affect, the City's financial capability to carry
out its responsibilities contemplated hereby.
ARTICLE 10. CONDITIONS PRECEDENT.
10.01 Construction of Project. Subject to termination of this Agreement pursuant to
Article 11, the obligation of the Developer to commence construction of the Project on
the Commencement Date is subject to the fulfillment to the satisfaction of, or waiver in
writing by, the Developer of the following conditions:
(1) The Plans and Specifications that are necessary to commence
construction shall have been approved by the City (to the extent required
under this Agreement) and by any other applicable Governmental
Authority, FEMA shall have approved the Flood Zone Change, and the
initial Permit for the commencement of construction of the Project and all
other Permits necessary for construction to commence shall have been
issued.
(2) The Project Financing shall have closed and conditions to funding shall
have been satisfied.
(3) The City Council shall have adopted an ordinance effecting the Vacation
of Right-of-Way as contemplated in Section 5.02(1) hereof.
10.02 Responsibilities of the Parties for Conditions Precedent. The parties hereto
shall not, individually or collectively, knowingly, intentionally or negligently prevent any
condition precedent from occurring; provided, however, nothing in this Section is
intended or shall be deemed to deny any party the right to reasonably exercise its
discretion to the extent permitted by law or this Agreement.
ARTICLE 11. DEFAULT; TERMINATION.
11.01 Project Default by the Developer.
(1) There shall be an "event of default" by the Developer pertaining to the
entire Project upon the occurrence of anyone or more of the following:
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(a) The Developer shall fail to perform or comply with any material
provision of this Agreement applicable to it within the time
prescribed therefor, after receipt of a notice from the City pursuant
to subsection 11.01(2)(a); or
(b) The Developer shall make a general assignment for the benefit of
its creditors, or shall admit in writing its inability to pay its debts as
they become due or shall file a petition in bankruptcy, or shall be
adjudicated a bankrupt or insolvent, or shall file a petition seeking
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future
statute, law or regulation or shall file an answer admitting, or shall
fail reasonably to contest, the material allegations of a petition filed
against it in any such proceeding, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator
of the Developer or any material part of such entity's properties; or
(c) Within ninety (90) days after the commencement of any proceeding
by or against the Developer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation,
such proceeding shall not have been dismissed or otherwise
terminated, or if, within ninety (90) days after the appointment
without the consent or acquiescence of the Developer of any
trustee, receiver or liquidator of any of such entities or of any
material part of any of such entity's properties, such appointment
shall not have been vacated; or
(2) (a) If an event of default by the Developer described in subsection (1)
above shall occur, the City shall provide written notice thereof to the
Developer, and (i) if such event of default shall not be cured by the
Developer within thirty (30) days after receipt of the written notice
from the City specifying in reasonable detail the event of default by
the Developer, or (ii) if such event of default is of such nature that it
cannot be completely cured within such time period, then if the
Developer shall not have commenced to cure such default within
such thirty (30) day period and shall not diligently prosecute such
cure to completion within such reasonable longer period of time as
may be necessary (provided, however, if the Developer is
proceeding diligently and in good faith, the curative period shall be
extended for a period of not exceeding six (6) months without any
approval or consent of the City being required, but such approval
will be required if the curative period is to be extended beyond six
(6) months after the notice of default has been given by the City to
the Developer), then, in addition to any remedy available under
Section 11.05, the City may terminate this Agreement or pursue
any and all legal or equitable remedies to which the City is entitled.
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(b) Any attempt by the City to pursue any of the above referenced
remedies will not be deemed an exclusive election of remedy or
waiver of the City's right to pursue any other remedy to which either
may be entitled.
(c) Any time periods or deadlines provided in this Agreement shall be
tolled or extended by the amount of time to cure any event of
default hereunder if such event affects the Developer's or City's
ability to perform by such deadline or the expiration of such period.
(3) Notwithstanding any provision of this Section, a default by the Developer
following the Completion Date shall not affect the title of any condominium
unit or common area conveyed by the Developer to an unrelated third
party or to a condominium association which is not controlled by the
Developer.
11.02 Default by the City.
(1) 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 (i) any material
provision of this Agreement applicable to it within the time prescribed
therefor, after receipt of a notice from the Developer pursuant to
subsection 11.02(2)(a), or (ii) any obligation of the City under the Put
Agreement and such failure continues beyond any applicable notice and
grace period provided therein.
(2) (a) If an event of default by the City described in Section 11.02(1) shall
occur, the Developer shall provide written notice thereof to the City,
and (i) if such event of default shall not be cured by the City within
thirty (30) days after receipt of the written notice from the Developer
specifying in reasonable detail the event of default by the City, or
(ii) if such event of default is of such nature that it cannot be
completely cured within such time period, then if the City 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
(not to exceed, however, six (6) months from the Developer's
notice), then the Developer may terminate this Agreement, institute
an action to compel specific performance of the terms hereof by the
City or pursue any and all legal or equitable remedies to which the
Developer is entitled.
(b) Any attempt by the Developer to pursue any of the remedies
referred to in subparagraph (a) above will not be deemed an
exclusive election of remedy or waiver of the Developer's right to
pursue any other remedy to which it might be entitled.
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(c) Any time periods or deadlines provided in this Agreement shall be
tolled or extended by the amount of time to cure any event of
default hereunder if such event affects the Developer's or City's
ability to perform by such deadline or the expiration of such period.
11.03 Obligations, Rights and Remedies Cumulative. Unless specifically stated
herein to the contrary, the specified rights-and remedies to which either the City or the
Developer are entitled under this Agreement are not exclusive and are intended to be in
addition to any other remedies or means of redress to which the City or the Developer
may lawfully be entitled and are not specifically prohibited by this Agreement. The
suspension of, or delay in, the performance of its obligations by the Developer while the
City shall at such time be in default of their obligations hereunder shall not be deemed
to be an "event of default." The suspension of, or delay in, the performance of the
obligations by the City while the Developer shall at such time be in default of its
obligations hereunder shall not be deemed to be an "event of default" by the City.
11.04 Non-Action on Failure to Observe Provisions of this Agreement. The failure
of the City or the Developer to promptly or continually insist upon strict performance of
any term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or
any other agreement, instrument or document of whatever form or nature contemplated
hereby shall not be deemed a waiver of any right or remedy that the City or the
Developer may have, and shall not be deemed a waiver of a subsequent default or
nonperformance of such term, covenant, condition or provision.
11.05 Termination.
(1) The Developer and the City acknowledge and agree that as of the
Effective Date certain matters mutually agreed by the parties hereto to be
essential to the successful development of the Project have not been
satisfied or are subject to certain conditions, legal requirements or
approvals beyond the control of any of the parties hereto or which cannot
be definitely resolved under this Agreement, including, but not limited to,
failure of a Governmental Authority to grant an approval required for
development of the Project and failure of FEMA to grant the Flood Zone
Change. 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 11,
but may, upon the election of any party hereto, be the basis for a
termination of this Agreement in accordance with this Section.
(2) In addition to any other rights of termination provided elsewhere in this
Agreement, this Agreement may be terminated as provided in subsection
(3) of this section by the City or the Developer after the occurrence of any
of the following events or conditions (except for subsection (b), in which
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event only the Developer may terminate this Agreement pursuant to this
subsection (2)):
(a) The appropriate Governmental Authority (including the City in
exercise of its governmental and regulatory authority and
responsibility), upon petition by the Developer denies or fails to:
issue the necessary order or other action necessary to vacate the
right-of-way as described in Section 5.02(1), approve the Flood
Zone Change, issue the Permits or any other land use approval
necessary to commence construction of the Project on the
Property, provided the Developer has proceeded diligently,
expeditiously and in good faith to obtain such approval, permits or
other necessary actions;
(b) A previously unknown site condition is subsequently discovered
and that condition prevents successful development of the Project,
or part of the Project on the Property, or part of the Property (in
which case only the Developer at his option can terminate the
Project as not feasible).
(3) Upon the occurrence of an event described in subsection (2) or in the
event that the Developer or the City, after diligently and in good faith to the
fullest extent of its capabilities, is unable to cause a condition precedent to
its respective obligations to occur or be satisfied, then the Developer or
the City may elect to terminate this Agreement by giving a notice to the
other party hereto within thirty (30) days of the occurrence of such event
or the determination of inability to cause a condition precedent to occur or
be satisfied, stating its election to terminate this Agreement as a result
thereof, in which case this Agreement shall then terminate.
Notwithstanding anything contained herein to the contrary, neither party
shall have the right to terminate this Agreement under this Section 11.05
once the Commencement Date shall have occurred.
(4) In the event of a termination pursuant to this Section 11.05, neither the
Developer nor the City shall be obligated or liable one to the other in any
way, financially or otherwise, for any claim or matter arising from or as a
result of this Agreement or any actions taken by the Developer and the
City, or any of them, hereunder or contemplated hereby, and each party
shall be responsible for its own costs.
11.06 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
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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 Property is no longer subject to
any restrictions, limitations or encumbrances imposed by this Agreement.
Such certificate shall expressly terminate the Memorandum of this
Agreement required by Section 15.13 without qualification for all purposes.
(2) The certificate described in Section (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 12. ARBITRATION
12.01 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 12. 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.
12.02 Appointment of Arbitrators.
(1) (a) Unless accelerated arbitration as provided in Section 12.08 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
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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.
(2) (a) If two (2) arbitrators are appointed pursuant to subsection (a)
above, the arbitrators thus appointed shall appoint a third
disinterested person who is on the list of qualified arbitrators
maintained by the American Arbitration Association, and such three
(3) arbitrators shall as promptly as possible determine such matter.
(b) If the second arbitrator shall not have been appointed as provided
in subsection (a), the first arbitrator shall, after ten (10) days notice
to the parties, proceed to determine such matter.
(c) If the two (2) arbitrators appointed by the parties pursuant to
subsection (a) shall be unable to agree within fifteen (15) days after
the appointment of the second arbitrator upon the appointment of a
third arbitrator, they shall give written notice of such failure to agree
to the parties, and, if the parties then fail to agree upon the
selection of such third arbitrator within fifteen (15) days thereafter,
then within ten (10) days thereafter each of the parties upon written
notice to the other parties hereto may request the appointment of a
third arbitrator by the office in or for the State of Florida (or if more
than one office, the office located closest to the City) of the
American Arbitration Association (or any successor organization
thereto), or, in its absence, refusal, failure or inability to act, request
such appointment of such arbitrator by the United States District
Court for the Middle District of Florida (which request shall be filed
in the division of that court responsible for the geographic area
including the City), or as otherwise provided in Chapter 682, Florida
Statutes, known and referred to as the Florida Arbitration Code, as
amended.
12.03 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.
12.04 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
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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.
12.05 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 12.02 hereof.
12.06 Decision of Arbitrators.
(1) If any decision reached by arbitration as provided in this part requires
performance by the Developer, the Developer covenants and agrees to
comply with any decision of the arbitrator(s) promptly after the date of
receipt by the Developer of such decision, and to continue such
performance to completion with due diligence and in good faith.
(2) If any such decision requires performance by the City, the City covenants
and agrees to comply promptly with any decision reached by arbitrator(s)
promptly after the date of receipt by the City of such decision, and to
continue such performance to completion with due diligence and in good
faith.
(3) Nothing in this part, nor in any arbitration decision rendered under this
part, shall be construed to require any payment by the City to the
Developer not otherwise provided for herein.
12.07 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 12.07, "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.
12.08 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 12.02 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.
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(b) Accelerated arbitration, for purposes of this Section 12.08, 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 12.08 shall terminate
and the procedures otherwise set forth in this Article 12 shall apply,
unless the parties mutually agree to an extension of such time
period.
(2) The Developer and the City hereby agree to use such accelerated
procedure only when reasonably necessary, to not contest the
appointment of the arbitrator or his or her decision except as may be
permitted by law, and that all other provisions of this part, except as are in
conflict with this Section 12.08, remain in effect and applicable to an
accelerated arbitration proceeding.
12.09 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.
12.10 Arbitration Proceedings and Records. Any arbitration hearing under this
article shall be considered a meeting subject to Section 286.011, Florida Statutes, and
shall be open to any member of the public. Unless otherwise rendered confidential
pursuant to or by the operation of any applicable law or order (other than an order by a
sole arbitrator or a panel of arbitrators acting under this part), the record of such
proceedings shall be a public record under Chapter 119, Florida Statutes.
ARTICLE 13. UNAVOIDABLE DELAY.
13.01 Unavoidable Delay.
(1) Any delay in performance of or inability to perform any obligation (other
than an obligation to pay money) or meet any date or deadline (including
without limitation the Commencement Date and the Completion Date)
under this Agreement due to any event or condition described in
subparagraph (2) as an event of "Unavoidable Delay" shall be excused in
the manner provided in this Section 13.01.
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(2) "Unavoidable Delay" means any of the following events or conditions or
any combination thereof: acts of God, litigation which has the effect of
precluding reasonable satisfaction of the obligations of this Agreement,
acts of the public enemy, riot, insurrection, war, pestilence, archaeological
excavations required by law, delays relating to Applicable Laws or
approval of Permits beyond the control of the party seeking same,
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 afive-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 subparagraph (3)
and in subparagraph (4) as the "Applicant") for an extension of time
pursuant to this subsection must be in writing, must set forth in detail the
reasons and causes of delay, and must be filed with the other party to this
Agreement within thirty (30) days following the Applicant becoming aware
(or with the exercise of reasonable diligence should have become aware)
of such occurrence.
(4) The Applicant shall be entitled to an extension of time for an Unavoidable
Delay only for the number of days of delay due solely to the occurrence of
the event or condition causing such Unavoidable Delay and only to the
extent that any such occurrence actually delays that party from proceeding
with its rights, duties and obligations under this Agreement affected by
such occurrence.
ARTICLE 14. FIRE OR OTHER CASUALTY; CONDEMNATION.
14.01 Loss or Damage to Project.
(1) Until the Completion Date, subject to the extent, availability and sufficiency
of insurance proceeds or the condemnation award (as applicable) and the
Project Lender's consent and approval (as set forth below in
subparagraph (3)), the Developer covenants and agrees to diligently
commence and complete the reconstruction or repair of any loss or
damage caused by fire or other casualty or by eminent domain (provided
the City is not the condemning authority) to the Project (or any portion
thereof) to substantially the same size, floor area, cubic content and
general appearance as existed prior to the occurrence of such loss or
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damage, promptly after the City approves the Plans and Specifications (if
and to the extent required, and subject to the limitations on the City's
approval, under this Agreement) for such reconstruction or repairs.
(2) The City shall review the Plans and Specifications (if and to the extent
required, and subject to the limitations on the City's approval, under this
Agreement) for such reconstruction or repairs as soon as possible after
filing thereof by the Developer. The City agrees to approve the Plans and
Specifications for such reconstruction or repairs if the reconstruction or
repairs contemplated by such Plans and Specifications will restore the
Project, or the damaged portion thereof, to substantially the same
condition as existed prior to the occurrence of such loss or damage or
such approval is otherwise required under Section 4.01(3), 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 (a) the insurance proceeds or condemnation award (as applicable)
received are insufficient to complete the repairs, or (b) any Project Lender
applies all or a portion of the insurance proceeds or condemnation award
to the repayment of the Project Financing, or (c) the Developer is unable
to obtain all of the Permits or approvals required under Applicable Laws
for the reconstruction of the Project, then, in any of such events, the
Developer may elect to terminate this Agreement by giving to the City
notice of such election within one hundred eighty (180) days after the
occurrence of the casualty or condemnation. If such notice is given, the
rights and obligations of the parties under this Agreement shall cease as
of the date of such notice, except for those provisions hereof (if any) which
expressly survive termination.
14.02 Partial Loss or Damage to Project. Until the Completion Date, any loss or
damage by fire or other casualty or exercise of eminent domain to the Project or
Property, or any portion thereof, which does not render the Project or Property unusable
for the use contemplated by Section 2.03 of this Agreement, shall not operate to
terminate this Agreement or to relieve or discharge the Developer from the timely
performance and fulfillment of the Developer's obligations pursuant to this Agreement,
subject to an extension of time for an Unavoidable Delay, any requirements and
conditions of the Project Lender, and the terms of Section 14.01(3).
14.03 Project Insurance Proceeds.
(1) Whenever the Project, or any part thereof, shall have been damaged or
destroyed, the Developer shall promptly make proof of loss and shall
proceed promptly to collect, or cause to be collected, all valid claims which
may have arisen against insurers or others based upon such damage or
destruction.
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(2) Subject to the rights of a Project Lender, the Developer agrees that all
proceeds of property or casualty insurance received by the Developer as a
result of such loss or damage shall be available and shall be used for
payment of the costs of the reconstruction or repair of the Project to the
extent necessary to repair or reconstruct the Project, subject to the terms
of this Article 14.
14.04 Notice of Loss or Damage to Project. The Developer shall promptly give the
City written notice of any significant damage or destruction to the Project stating the
date on which such damage or destruction occurred, the expectations of the Developer
as to the effect of such damage or destruction on the use of the Project, and the
proposed schedule, if any, for repair or reconstruction of the Project.
14.05 Condemnation of Project or Property; Application of Proceeds. In the event
that part, but not all, of the Project or Property, or both, shall be taken by the exercise of
the power of eminent domain at any time before the Expiration Date, subject to the
rights of a Project Lender, the compensation awarded to and received by the Developer
shall be applied first to the restoration of the Project, provided the Project can be
restored and be commercially feasible for its intended use as contemplated by Section
2.03(1) of this Agreement after the taking, and, if not, can be retained by the Developer.
14.06 Condominium Documents Control. Notwithstanding anything contained in this
Article 14 to the contrary, from and after the date that the Property is submitted to the
condominium form of ownership as contemplated by Section 2.03(2) of this Agreement,
the terms of the condominium documents shall govern and control with respect to (a)
the reconstruction and repair of any loss or damage to the Project caused by fire or
other casualty or eminent domain, and (b) the settlement, collection, use and application
of any insurance proceeds or condemnation awards resulting therefrom.
ARTICLE 15. MISCELLANEOUS
15.01 Assignments.
(1) By the Developer.
a. Prior to the Commencement Date, the Developer may sell, convey,
assign or otherwise dispose of any or all of its right, title, interest
and obligations in and to the Project, or any part thereof, only with
the prior written consent of the City, which consent shall not be
unreasonably withheld, provided that such party (hereinafter
referred to as the "assignee"), to the extent of the sale,
conveyance, assignment or other disposition by the Developer to
the assignee, shall be bound by the terms of this Agreement the
same as the Developer for such part of the Project as is subject to
such sale, conveyance, assignment or other disposition.
b. If the assignee of the Developer's right, title, interest and obligations
in and to the Project, or any part thereof assumes all of the
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Developer's obligations hereunder for the Project, or that part
subject to such sale, conveyance, assignment or other disposition,
then the Developer shall be released from all such obligations
hereunder which have been so assumed by the assignee, and the
City agrees to execute an instrument evidencing such release,
which shall be in recordable form.
c. An assignment or transfer of the Project, or any part thereof, by the
Developer to any corporation, limited liability company, limited
partnership, general partnership, joint venture or other business
entity, in which the Developer (or any person(s) or entity controlling,
controlled by or under common control with the Developer) is the or
a general partner or managing member 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
15.01, provided, however, that notice of such assignment shall be
given by the Developer to the City not less than thirty (30) days
prior to such assignment being effective and the assignee shall be
bound by the terms of this Agreement to the same extent as would
the Developer in the absence of such assignment.
(2) City's Right to Assign Rights. The City shall not have the right to assign or
otherwise transfer this Agreement or any of its rights and obligations
hereunder.
15.02 Successors and Assigns. The terms herein contained shall bind and inure to
the benefit of the City, and its successors and permitted assigns, and the Developer and
its successors and permitted assigns, except as may otherwise be specifically provided
herein.
15.03 Notices.
(1) All notices, demands, requests for approvals or other communications
given by either party to another shall be in writing, and shall be sent by
registered or certified mail, postage prepaid, return receipt requested or by
courier service, or by hand delivery to the office for each party indicated
below and addressed as follows:
To the Developer: To the City:
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L.O.M., Inc.
c/o Surf Style, Inc.
4100 N. 28th Terrace
Hollywood, Florida 33020
Attn: Controller
with copies to:
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attn: City Manager
with copies to:
Greenberg Traurig, P.A. Pamela K. Akin, Esq.
1221 Brickell Avenue, 23~d Floor Clearwater City Attorney
Miami, Florida 33131 112 S. Osceola Avenue
Attn: Nancy B. Lash, Esq. Clearwater, FL 33756
(2) Notices given by courier service or by hand delivery shall be effective
upon delivery and notices given by mail shall be effective on the third (3rd)
business day after mailing. Refusal by any person to accept delivery of
any notice delivered to the office at the address indicated above (or as it
may be changed) shall be deemed to have been an effective delivery as
provided in this Section 15.03. 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.
15.04 Applicable Law and Construction. The laws of the State of Florida shall govern
the validity, performance and enforcement of this Agreement. This Agreement has been
negotiated by the City and the Developer and the Agreement, including, without
limitation, the Exhibits, shall not be deemed to have been prepared by the City or the
Developer, but by all equally.
15.05 Venue; Submission to Jurisdiction.
(1) For purposes of any suit action, or other proceeding arising out of or
relating to this Agreement, the parties hereto do acknowledge, consent,
and agree that venue thereof is Pinellas County, Florida.
(2) Each party to this Agreement hereby submits to the jurisdiction of the
State of Florida, Pinellas County and the courts thereof and to the
jurisdiction of the United States District Court for the Middle District of
Florida, for the purposes of any suit, action, or other proceeding arising
out of or relating to this Agreement and hereby agrees not to assert by
way of a motion as a defense or otherwise that such action is brought in
an inconvenient forum or that the venue of such action is improper or that
the subject matter thereof may not be enforced in or by such courts.
(3) If at any time during the term of this Agreement the Developer is not a
resident of the State of Florida or has no office, employee, City or general
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partner thereof available for service of process as a resident of the State
of Florida, or if any permitted assignee thereof shall be a foreign
corporation, partnership or other entity or shall have no officer, employee,
agent, or general partner available for service of process in the State of
Florida, the Developer hereby designates the Secretary of State, State of
Florida, its agent for the service of process in any court action between it
and the City, or both, arising out of or relating to this Agreement and such
service shall be made as provided by the laws of the State of Florida for
service upon anon- resident; provided, however, that at the time of
service on the Florida Secretary of State, a copy of such service shall be
delivered to the Developer at the address for notices as provided in 18.03.
15.06 Estoppel Certificates. The Developer and the City shall at any time and from
time to time, upon not less than ten (10) days prior notice by another party hereto,
execute, acknowledge and deliver to the other parties a statement 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 15.06 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.
15.07 Complete Agreement; Amendments.
(1) This Agreement, and all the terms and provisions contained herein,
including without limitation the Exhibits hereto, constitute the full and
complete agreement between the parties hereto to the date hereof, and
supersedes and controls over any and all prior agreements,
understandings, representations, correspondence and statements,
whether written or oral.
(2) Any provision of this Agreement shall be read and applied in pari materia
with all other provisions hereof.
(3) This Agreement cannot be changed or revised except by written
amendment signed by all parties hereto.
15.08 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.
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15.09 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.
15.10 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.
15.11 No Brokers. The City and the Developer hereby represent, agree and
acknowledge that no real estate broker or other person is entitled to claim or to be paid
a commission as a result of the execution and delivery of this Agreement, including any
of the Exhibits, or any proposed improvement, use, disposition, lease, conveyance or
acquisition of any or all of the Property.
15.12 Not an Agent of City. During the term of this Agreement, the Developer
hereunder shall not be an agent of the City with respect to any and all services to be
performed by the Developer (and any of its agents, assigns, or successors) with respect
to the Project.
15.13 Memorandum of Development Agreement. The City and the Developer agree
to execute, in recordable form, on the Effective Date, a short form "Memorandum of
Agreement for Development of Property" in the form attached hereto as Exhibit M, and
agree, authorize and hereby direct such Memorandum to be recorded in the Public
Records of Pinellas County, Florida, as soon as possible after execution thereof. The
Developer shall pay the cost of such recording.
15.14 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.
15.15 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 a pledge
of the ad valorem taxing power of the City within the meaning of the Constitution of the
State of Florida or any other applicable laws, but shall be payable solely from legally
available revenues and funds. Neither the Developer nor any other party under or
beneficiary of this Agreement shall ever have the right to compel the exercise of the ad
valorem taxing power of the City or any other governmental entity or taxation in any
form on any real or personal property to pay the City's obligations or undertakings
hereunder.
15.16 Other Requirements of State Law. Nothing in this Agreement shall be deemed
to relieve either party from full compliance with any provision of State law which is
applicable to any of the obligations or under takings provided for in this Agreement. In
the event that this Agreement omits an obligation to comply with any provision of State
law in regard to any of the obligations or undertakings provided for in this Agreement, it
is the intention of the parties that such applicable State law shall be deemed
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incorporated into this Agreement and made a part thereof. In the event that there is any
conflict between the provisions of this Agreement and applicable State law, it is the
intention of the parties that the Agreement shall be construed to incorporate such
provisions of State law and that such provisions shall control.
15.17 Technical Amendments. In the event that due to minor inaccuracies contained
herein or any Exhibit attached hereto or any other agreement contemplated hereby, or
due to changes resulting from technical matters arising during the term of this
Agreement, the parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change the substance
of this Agreement may be made and incorporated herein. The City Manager is
authorized to approve such technical amendments, on behalf of the City, with the
written approval of the Developer, and is authorized to execute any required
instruments, amendments and approvals, to make and incorporate such amendment
(so approved by the Developer) to this Agreement or any Exhibit attached hereto or any
other agreement contemplated hereby.
15.18 Term; Expiration; Certificate.
(1) If not earlier terminated as provided in Section 11.05, this Agreement shall
automatically expire and no longer be of any force and effect on the
Expiration Date.
(2) Upon completion of the term of this Agreement, upon the request of the
City or the Developer, 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 12.
(4) The Agreement Expiration Certificate shall be in such form as will enable it
to be recorded in the Public Records of Pinellas County, Florida. Following
execution by all of the parties hereto, the Agreement Expiration Certificate
shall promptly be recorded by the Developer in the Public Records of
Pinellas County, Florida and the Developer shall pay the cost of such
recording.
15.19 Approvals Not Unreasonably Withheld. The parties hereto represent that it is
their respective intent as of the Effective Date and do covenant and agree in the future
that all approvals, consents, and reviews will be undertaken and completed as
expeditiously as possible, in good faith, and will not be arbitrarily or unreasonably
withheld, conditioned or delayed, unless otherwise expressly authorized by the terms of
this Agreement. Whenever in this Agreement the approval or consent of the City is
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required, the written approval or consent regarding the matter in question by the City
Manager or his/her designee on behalf of the City shall satisfy the requirement for
approval or consent of the City. However, any amendments or modifications to this
Agreement or any exhibits hereto, except as otherwise provided in Section 15.17
hereof, shall require City Council approval.
15.20 Waiver of Jury Trial. The parties hereto hereby each knowingly, irrevocably,
voluntarily and intentionally waive any right such party may have to a trial by jury in
respect of any action, proceeding or counterclaim based on this Agreement, or arising
out of, under or in connection with this Agreement or any amendment or modification of
this Agreement, or any other agreement executed by and between the parties in
connection with this Agreement, or any course of conduct, course of dealing,
statements (whether verbal or written) or actions of any party hereto. This waiver of jury
trial provision is a material inducement to the parties to enter into this Agreement.
15.21 Effective Date. The Effective Date shall be the date of the last signature to this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK -
SIGNATURES ON FOLLOWING PAGE(S)]
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IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of this day of , 2010.
Attest:
By:
Cynthia Goudeau, City Clerk
Approved as to form:
Pamela K. Akin
City Attorney
STATE OF FLORIDA )
COUNTY OF PINELLAS )
THE CITY OF CLEARWATER, FLORIDA,
a Florida municipal corporation
By:
Frank V. Hibbard, Mayor
The foregoing instrument was acknowledged before me this day
of 2010 by Frank V. Hibbard and Cynthia Goudeau, Mayor and
City Clerk, respectively, for the City of Clearwater, Florida, on behalf of the City.
By:
Signature of Notary Public
Printed, typed or stamp
My Commission Expires:
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L.O.M., INC., a Florida corporation
STATE OF FLORIDA
COUNTY OF PINELLAS
By:_
Name:
Title:
The foregoing instrument was acknowledged before me this day of ,
2010 by as of
L.O.M., INC, a Florida corporation, on behalf of the corporation.
By:
Signature of Notary Public
Printed, typed or stamp
My Commission Expires:
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
PARCEL 1:
Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as
recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida.
PARCEL 2:
Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and
109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as
recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida.
TOGETHER WITH the eastern half of the existing right-of-way of South Gulfview
Boulevard (approximately 35' in width) adjacent to the Property, which right-of-way area
is depicted in Exhibit C and intended to be vacated pursuant to Section 5.02(1) of the
foregoing Development Agreement.
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EXHIBIT B
CONCEPTUAL PLANS FOR PROJECT
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EXHIBIT C
RIGHT-OF-WAY AREA TO BE VACATED
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EXHIBIT D
FORM OF CONDOMINIUM DOCUMENTS
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EXHIBIT E
FORM OF PUBLIC PARKING COVENANT
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~~
EXHIBIT F
FORM OF MAINTENANCE EASEMENT
(BREAK WALL)
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EXHIBIT G
FORM OF SIDEWALK AND TURN-LANE EASEMENT
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EXHIBIT H
LIST OF REQUIRED PERMITS AND APPROVALS
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EXHIBIT I
PROJECT DEVELOPMENT SCHEDULE
~~ ~ /
~'
~; ,
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h ~
EXHIBIT J
CITY PARKING GARAGE STANDARDS
~~
i
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EXHIBIT K
PARKING STRUCTURE MAINTENANCE STANDARDS
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EXHIBIT L
FORM OF PUT AGREEMENT
1
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a
EXHIBIT M
FORM OF MEMORANDUM OF
AGREEMENT FOR DEVELOPMENT OF PROPERTY
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