09-03
RESOLUTION NO. 09-03
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CLEARWATER AND WILLIAM M.
SHEPHARD, TRUSTEE; PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the City of Clearwater is desirous of entering into a development
agreement with William M. Shephard, Trustee; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA:
Section 1. The Development Agreement between the City of Clearwater and
William M. Shephard, Trustee, a copy of which is attached as Exhibit "A," is hereby
approved.
Section 2. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 17th
day of December
,2009.
~~tf~
Frank V. Hibbard
Mayor
Approved as to form:
Attest:
Leslie K. Doug 1-
Assistant City A
~f. ~~.DDn..
Cyn iaE.Goudeau --
City lerk
Resolution No. 09-03
PREPARED BY AND RETURN TO:
HARRY S. CLINE, Esquire
Macfarlane, Ferguson &
McMullen
625 Court Street, Suite 200
Post Office Box 1669
Clearwater, FL 33757
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("AGREEMENT") is dated the day of
, 2009, and entered into between WILLIAM M. SHEPHARD, Trustee
U/AID 2/29/84 ("Developer"), its successors and assigns, and the CITY OF CLEARWATER,
FLORIDA, a political subdivision of the State of Florida acting through its City Council, the
governing body thereof ("City").
RECITALS:
WHEREAS, one of the major elements of the City's revitalization effort is a preliminary
plan for the revitalization of Clearwater Beach entitled Beach by Design; and
WHEREAS, Sections 163.3220 - 163.3243, Florida Statutes, which set forth the Florida
Local Government Development Agreement Act ("Act"), authorize the City to enter into binding
development agreements with persons having a legal or equitable interest in real property located
within the corporate limits of the City; and
WHEREAS, under Section 163.3223 of the Act, the City has adopted Section 4-606 of
the City of Clearwater Community Development Code ("Code"), establishing procedures and
requirements to consider and enter into development agreements; and
WHEREAS, Beach by Design as amended by City of Clearwater Ordinance No. 7925-08
proposed additional hotel units to equalize development opportunities on the beach between
overnight accommodations and attached dwellings and ensure Clearwater Beach remains a
quality, family resort community by further providing for a reserve of additional hotel units
["Hotel Density Reserve"] to be made available for such mid-sized hotel projects; and
WHEREAS, the Developer controls approximately 2.689::t acres of real property
("Property") in the corporate limits of the City, consisting of 2.3 7::t acres of upland from the face
of the seawall more particularly described on Exhibit "A" attached hereto and incorporated
herein; and
Exhibit "A"
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WHEREAS, the Developer desires to develop the Property by demolishing existing hotel
rooms and other uses in order to add overnight accommodation units, minimal meeting space for
guest use, ground level pool, tiki-bar/pool on the roof, new lobby and parking with parking
spaces, generally conforming to the architectural elevation dimensions shown in composite
Exhibit liB"; and
WHEREAS, upon completion the planned mid-priced hotel will contain one hundred
eighty-six (186) units, which includes sixty-eight (68) units from the available Hotel Density
Reserve; and
WHEREAS, the City has conducted such hearings as are required by and in accordance
with Chapter 163.3220 Fla. Stat. (2008) and any other applicable law; and
WHEREAS, the City has determined that, as of the Effective Date of this Agreement, the
proposed project is consistent with the City's Comprehensive Plan and Land Development
Regulations; and
WHEREAS, the City has conducted public hearings as required by SS 4-206 and 4-606 of
the Community Development Code; and
WHEREAS, at a duly called public meeting on , 2009, the City
Council approved this Agreement and authorized and directed its execution by the appropriate
officials of the City; and
WHEREAS, the Community Development Board approved the design and site plan as
FLD2008-12033 on , 2009, conditioned upon the approval and execution of
this Agreement; and
WHEREAS, approval of this Agreement is in the interests of the City in furtherance of
the City's goals of enhancing the viability of the family nature of the beach community and in
furtherance of the objectives of Beach by Design; and
WHEREAS, Developer has approved this Agreement and has duly authorized certain
individuals to execute this Agreement on Developer's behalf.
STATEMENT OF AGREEMENT
In consideration of and in reliance upon the premises, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto intending to be legally bound and in accordance with
the Act, agree as follows:
SECTION 1. Recitals. The above recitals are true and correct and are a part of this
Agreement.
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SECTION 2. Incornoration of the Act. This Agreement is entered into in compliance
with and under the authority of the Code and the Act, the terms of which as of the date of this
Agreement are incorporated herein by this reference and made a part of this Agreement. Words
used in this Agreement without definition that are defined in the Act shall have the same
meaning in this Agreement as in the Act.
SECTION 3. Pronertv Subiect to this Al!reement. The Property described in Exhibit
"A" is subject to this Agreement ("Property").
3.1 The Property has two (2) land use designations and zoning districts:
Land Use: Resort Facilities High ["RFH"] and Preservation ["P"]; and
Zoning: Tourist ["T'] and Open Space/Recreation ["OS/R"] Districts.
3.2. The Property is owned in fee simple by the Developer.
3.3 The Property is generally located at 619 S. Gulfview Boulevard, Clearwater, FL
33767 as more further described in Exhibit "A".
SECTION 4. Scone of Proiect.
4.1 The Property is 2.37 acres. Under current zoning it is authorized 50 units per
acre, or 118 permitted units. The Developer is seeking 68 units from the Hotel Density Reserve,
for an overall total of 186 overnight accommodation units, at a density of 78.48 units/acre on lot
acreage zoned Tourist (T) District. The project height of the building is 134 feet (to top of roof
deck).
4.2 The Project shall include the following parking spaces, as defined In the
Community Development Code:
Existing Garage:
Proposed Garage:
Grand Total
191 striped + 1 handicap + 28 overflow = 220 total
123 striped + 1 handicap + 40 overflow = 164 total
314 striped + 2 handicap + 68 overflow = 384 total
4.3 The design of the Project, as represented in composite Exhibit "B", is consistent
with Beach by Design, except as otherwise shown on composite Exhibit "B".
4.4 No more than twenty-five (25%) percent of overnight accommodation units shall
have full kitchens. Kitchens shall be limited to those units identified on approved plans.
4.5 The Project shall comply with the Metropolitan Planning Organization's ["MPO"]
countywide approach to the application of concurrency management for transportation purposes.
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SECTION 5. Effective Date/Duration of this Ae:reement.
5.1 This Agreement shall not be effective until this Agreement is properly recorded in
the public records of Pinellas County, Florida, and thirty (30) days have elapsed after having
been received by the Department of Community Affairs pursuant to Florida Statutes Section
163.3239 and Clearwater Community Development Code Section 4-606.G.2."
5.2 Within fourteen (14) days after the City approves the execution of this
Agreement, the City shall record the Agreement with the Clerk of the Circuit Court for Pinellas
County. The Developer shall pay the cost of such recording. The City shall submit to the
Department of Community Affairs a copy of the recorded Agreement within fourteen (14) days
after the Agreement is recorded.
5.3 This Agreement shall continue in effect until terminated, as defined herein, but for
a period not to exceed ten (10) years.
SECTION 6. Oblie:ations under this Ae:reement.
6.1 Obligations of the Developer:
6.1.1 The obligations under this Agreement shall be binding upon and the
benefits of this Agreement shall inure to the Developer, its successors in interests or
assIgns.
6.1.2 At the time of development of the Property, the Developer will submit
such applications and documentation as are required by law and shall comply with the
City's Code applicable at the time of building permit review.
6.1.3 The following restrictions shall apply to development of the Property:
6.1.3.1 The Property and improvements located thereon shall be
developed in substantial conformance with the Site Plan attached as composite
Exhibit "B" and approved by the Community Development Board ("CDB") as
case number FLD2008-12033. Any minor revisions or changes to the Site Plan
shall be consistent with the approved Site Plan and shall be approved by the
Planning Director as a minor modification, pursuant to the Code. Any
modifications determined by the Planning Director as either inconsistent with the
approved Site Plan or constituting a substantial deviation from the approved Site
Plan and thus requiring further approval by the CDB shall require an amendment
to this Agreement in accordance with the procedures of the Act and the Code, as
necessary and applicable. Any and all such approved and adopted amendments
shall be recorded in the public records of Pin ell as County, Florida.
6.1.3.2 The Developer shall obtain building permits, and shall thereafter
timely obtain required certificates of occupancy, in accordance with Code Section
4-407. The Developer shall commence vertical construction, defined as work on
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the project other than clearing, grubbing, or other preliminary site preparation
work, in accordance with applicable provisions of the Code and of the Florida
Building Code. Nothing herein shall restrict Developer from seeking an extension
of these time frames pursuant to applicable provisions of the Code and of the
Florida Building Code or from seeking an amendment to this Agreement.
6.1.3.3 The Developer shall execute, prior to commencement, a
mandatory evacuation/closure covenant, substantially in the form of Exhibit "C",
that the accommodation use will closed as soon as practicable after a hurricane
watch that includes Clearwater Beach is posted by the National Hurricane Center.
6.1.4 Covenant of Unified Use. Prior to the issuance of the first building permit
for the Project, the Developer hereby agrees to execute the Covenant of Unified Use and
development for the Project Site providing that the Project Site shall be developed and
used as a single project, the form of which covenant is attached as Exhibit "D"; provided
however, that nothing shall preclude the Developer from selling the Fractional Share
Units, or from selling all or a portion of the Developer's Property in the event that
Developer determines not to construct the Project. Additionally, prior to the issuance of
the first building permit for the Project, the Developer hereby agrees to execute a
Declaration of Unity of Title for the Project Site providing that the Project Site shall be
developed and used as a single project, the form of which Declaration of Unity of Title is
available from the City Planning Department. It is understood and agreed that, in the
event that the Developer enters into the anticipated Covenant of Unified Use and
development, and the Developer elects not to construct the Project and notifies the City
of its election in writing, and, alternatively, as of the date of expiration, termination or
revocation of any rights of Developer to incorporate the Hotel Density Reserve Units into
the Project, the City shall execute and deliver to the Developer a termination of such
covenant of unified use and development suitable for recording in the Public Records of
Pinellas County, Florida. Additionally, the City shall execute and deliver to the
Developer a Release of Unity of Title suitable for recording in the Public Records of
Pinellas County, Florida.
6.1.5 Allocation of Units from Hotel Density Reserve; Return of Units to
Reserve Pool; Covenant Regarding Use of Units. Subject to the terms and conditions of
this Agreement, the City hereby allocates and grants to the Developer from the Hotel
Density Reserve an additional sixty-eight (68) hotel units to the Project Site in
accordance with applicable law. In the event this Agreement is terminated pursuant to
Section 10 of this Agreement, or if any units granted to the Developer from the Hotel
Density Reserve are not constructed in conjunction with the Project approved by
FLD2008-12033 and in accordance with Paragraph 6.1.3.2, or if any units or the Project
fail to meet and maintain the criteria for Hotel Density Reserve units contained in City of
Clearwater Ordinance No. 7925-08, said units shall be returned to the Hotel Density
Reserve and be unavailable to the Developer for use on the Project, pursuant to Beach by
Design. Prior to the issuance of the Certificate of Occupancy for the Project, the
Developer hereby agrees to execute and record a Covenant in the Public Records of
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Pinellas County, Florida restricting the Hotel Density Reserve Units in perpetuity to the
use approved by FLD2008-12033 and by this Agreement.
6.1.6 Transient Use. Occupancy in the overnight accommodation units is limited
to a term of less than one (1) month or thirty (30) consecutive days, whichever is less.
Nothing herein shall prevent a purchaser of a fractional share unit from owning a period
of time greater than thirty (30) days, provided every occupancy is limited to thirty (30)
consecutive days or one (1) month.
6.2 Obligations of the City.
6.2.1 The City shall promptly process site and construction plan applications for
the Property that are consistent with the Comprehensive Plan and the Concept Plan and
that meet the requirements of the Code.
6.2.2 The final effectiveness of any approvals of the applications referenced in
Section 6.2.1 is subject to:
6.2.2.1 The provisions of Chapters 163 and 166, Florida Statutes, as they
may govern such amendments; and
6.2.2.2 The expiration of any appeal periods or, if an appeal is filed, at the
conclusion of such appeal.
6.2.3 The Project shall receive sixty-eight (68) units from the Hotel Density
Reserve as defined in Beach by Design.
SECTION 7. Public Facilities to Service DeveloDment. The following public facilities
are presently available to the Property from the sources indicated below. Development of the
Property will be governed by the concurrency ordinance provisions applicable at the time of
development approval. With respect to public infrastructure and services subject to concurrency
requirements, all applicable concurrency provisions for the proposed development have been
met.
7.1 Potable water is available from the City. The Developer shall be responsible for
all necessary main extensions and applicable connection fees.
7.2 Sewer service is currently provided by the City. The Developer shall be
responsible for all necessary main extensions and applicable connection fees.
7.3 Fire protection from the City.
7.4 Drainage facilities for the Property will be provided by the Developer at the
Developer's sole expense.
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7.5 All improvements associated with the public facilities identified in Subsections
7.1 through 7.4 shall be completed prior to the issuance of any certificate of occupancy.
7.6 Transportation concurrency requirements have been met.
7.7 The Developer is responsible for the payment of any required impact fees.
SECTION 8. Required Local Government Permits. The required local government
development permits for development of the Property include, without limitation, the following:
8.1 Site plan approval(s) and associated utility licenses, access, and right-of-way
utilization permits;
8.2 Construction plan approval(s);
8.3 Building permit(s); and
8.4 Certificate(s) of occupancy.
SECTION 9. Consistencv. The City finds that development of the Property is
consistent with the terms this Agreement is consistent with the City Comprehensive Plan and the
Code.
SECTION 10. Termination.
10.1 If the Developer's obligations set forth in this Agreement are not followed in a
timely manner, as reasonably determined by the City Manager, after notice to the Developer and
an opportunity to be heard, existing permits shall be administratively suspended and issuance of
new permits suspended until the Developer has fulfilled its obligations. Failure to timely fulfill
its obligations may serve as a basis for termination of this Agreement by the City, at the
discretion of the City and after notice to the Developer and an opportunity for the Developer to
be heard.
SECTION 11. Other Terms and Conditions.
11.1 Except in the case of termination, until ten (10) years after the date of this
Agreement, the Property shall not be subject to down-zoning, unit density reduction, or intensity
reduction, unless the City has held a public hearing and determined:
11.1.1 That substantial changes have occurred in pertinent conditions existing at
the time of approval of this Agreement; or
11.1.2 This Agreement is based on substantially inaccurate information provided
by the Developer; or
11.1.3 That the change is essential to the public health, safety, or welfare.
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SECTION 12. Comvliance with Law. The failure of this Agreement to address any
particular permit, condition, term or restriction shall not relieve the Developer from the necessity
of complying with the law governing such permitting requirements, conditions, terms or
restrictions.
SECTION 13. Notices. Notices and communications required or desired to be given
under this Agreement shall be given to the parties by hand delivery, by nationally recognized
overnight courier service such as Federal Express, or by certified mail, return receipt requested,
addressed as follows (copies as provided below shall be required for proper notice to be given):
If to the Developer:
William M. Shephard, Trustee
619 S. Gulfview Boulevard
Clearwater, FL 33767
With Copy to:
Harry S. Cline, Esq.
Macfarlane Ferguson & McMullen
Post Office Box 1669
Clearwater, FL 33757
With Copy to:
Oscar 1. Garcia, AlA
318 SE 8th Street
Fort Lauderdale, FL 33316
If to City:
City of Clearwater, City Attorney
A TTN: Pamela Akin, Esq.
112 South Osceola Avenue
Clearwater, FL 33756
Properly addressed, postage prepaid, notices or communications shall be deemed delivered and
received on the day of hand delivery, the next business day after deposit with an overnight
courier service for next day delivery, or on the third (3rd) day following deposit in the United
States mail, certified mail, return receipt requested. The parties may change the addresses set
forth above (including the addition of a mortgagee to receive copies of all notices), by notice in
accordance with this Section.
SECTION 14.
Assi!!:nments.
14.1 By the Developer:
14.1.1 Prior to the Commencement Date, the Developer may sell, convey, assign
or otherwise dispose of any or all of its right, title, interest and obligations in and to the
Project, or any part thereof, only with the prior written notice to the City, provided that
such party (hereinafter referred to as the "assignee"), to the extent of the sale,
conveyance, assignment or other disposition by the Developer to the assignee, shall be
bound by the terms of this Agreement the same as the Developer for such part of the
Project as is subject to such sale, conveyance, assignment or other disposition.
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14.1.2 If the assignee of the Developer's right, title, interest and obligations in
and to the Project, or any part thereof assumes all of the Developer's obligations
hereunder for the Project, or that part subject to such sale, conveyance, assignment or
other disposition, then the Developer shall be released from all such obligations
hereunder which have been so assumed by the assignee, and the City agrees to execute an
instrument evidencing such release, which shall be in recordable form.
14.1.3 An assignment of the Project, or any part thereof, by the Developer to any
corporation, limited partnership, limited liability company, general partnership, or joint
venture, in which the Developer (or an entity under common control with Developer) has
either the controlling interest or through a joint venture or other arrangement shares equal
management rights and maintains such controlling interest or equal management rights
shall not be deemed an assignment or transfer subject to any restriction on or approvals of
assignments or transfers imposed by this Agreement, 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.
14.1.4 No assignee, purchaser, sublessee or acquirer of all or any part of the
Developer's rights and obligations with respect to anyone Parcel shall in any way be
obligated or responsible for any of the Developer's obligations with respect to any other
Parcel by virtue of this Agreement unless and until such assignee, purchaser, sublessee or
acquire has expressly assumed the Developer's such other obligations.
14.1.5 Notwithstanding any other provision of this paragraph, the sale of
individual Interval Ownership Units in the ordinary course of business shall not be
subject to the requirements ofthis paragraph.
14.2 Successors and Assigns. The terms herein contained shall bind and inure to the
benefit of the City, and its successors and assigns, and the Developer and, as applicable to the
parties comprising Developer, their personal representatives, trustees, heirs, successors and
assigns, except as may otherwise be specifically provided herein.
SECTION 15. Minor Non-Compliance. The Developer will not be deemed to have
failed to comply with the terms of this Agreement in the event such noncompliance, in the
judgment of the City Manager, reasonably exercised, is of a minor or inconsequential nature.
SECTION 16. Covenant of Cooperation. The parties shall cooperate with and deal
with each other in good faith and assist each other in the performance of the provisions of this
Agreement and in achieving the completion of development of the Property.
SECTION 17. Approvals. Whenever an approval or consent is required under or
contemplated by this Agreement such approval or consent shall not be unreasonably withheld,
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delayed or conditioned. All such approvals and consents shall be requested and granted III
writing.
SECTION 18. Completion of Ae:reement. Upon the completion of performance of this
Agreement or its revocation or termination, a statement evidencing such completion, revocation
or termination shall be signed by the parties hereto and recorded in the official records of the
City.
SECTION 19. Entire Ae:reement. This Agreement (including any and all Exhibits
attached hereto all of which are a part of this Agreement to the same extent as if such Exhibits
were set forth in full in the body of this Agreement), constitutes the entire agreement between the
parties hereto pertaining to the subject matter hereof.
SECTION 20. Construction. The titles, captions and section numbers in this
Agreement are inserted for convenient reference only and do not define or limit the scope or
intent and should not be used in the interpretation of any section, subsection or provision of this
Agreement. Whenever the context requires or permits, the singular shall include the plural, and
plural shall include the singular and any reference in this Agreement to the Developer includes
the Developer's successors or assigns. This Agreement was the production of negotiations
between representatives for the City and the Developer and the language of the Agreement
should be given its plain and ordinary meaning and should not be strictly construed against any
party hereto based upon draftsmanship. If any term or provision of this Agreement is susceptible
to more than one interpretation, one or more of which render it valid and enforceable, and one or
more of which would render it invalid or unenforceable, such term or provision shall be
construed in a manner that would render it valid and enforceable.
SECTION 21. Partial Invaliditv. If any term or provision of this Agreement or the
application thereof to any person or circumstance is declared invalid or unenforceable, the
remainder of this Agreement, including any valid portion of the invalid term or provision and the
application of such invalid term or provision to circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby and shall with the remainder of this
Agreement continue unmodified and in full force and effect. Notwithstanding the foregoing, if
such responsibilities of any party hereto, to the extent that the purpose of this Agreement or the
benefits sought to be received hereunder are frustrated, such party shall have the right to
terminate this Agreement upon fifteen (15) days written notice to the other parties.
SECTION 22. Code Amendments. Subsequently adopted ordinances and codes of the
City which is of general application not governing the development of land shall be applicable to
the Property, and such modifications are specifically anticipated in this Agreement.
SECTION 23. Governine: Law. This Agreement shall be governed by, and construed
in accordance with the laws of the State of Florida without regard to the conflict of laws
principles of such state.
SECTION 24. Counterparts. This Agreement may be executed in counterparts, all of
which together shall continue one and the same instrument.
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SECTION 25. Amendment. This Agreement may be amended by mutual written
consent of the City, the Developer, and the Association so long as the amendment meets the
requirements of the Act, applicable City ordinances, and Florida law.
IN WITNESS WHEREOF, the parties have hereto executed this Agreement the date and
year first above written.
In the Presence of:
WILLIAM M. SHEPHARD, Trustee
U/AlD 2/29/84
Print Name
Print Name
As to "Developer"
CITY OF CLEARWATER, FLORIDA
By:
William B. Home II,
City Manager
Print Name:
Print Name
As to "City"
Attest:
Cynthia E. Goudeau, City Clerk
Countersigned:
Frank V. Hibbard, Mayor
Approved as to Form:
Leslie K. Dougall-Sides
Assistant City Attorney
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STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of
,2009, by WILLIAM M. SHEPHARD, Trustee. He is [ ] personally
known to me or has [ ] produced as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 2009, by WILLIAM B. HORNE, II, as City Manager of the City of
Clearwater, Florida, who is [ ] personally known to me or who has [ ] produced
as identification.
Notary Public
Print Name:
My Commission Expires:
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EXHIBIT" A"
Legal Description of Project Site
Lots 1 thru 5, Block "C", Bayside Subdivision #5,
according to the map or plat thereof as recorded in
Plat Book 38, Pages 38 and 39, Public Records of
Pinellas County, Florida, and begin at the
northwesterly corner of Lot 1, Block "C", Bays ide
Subdivision #5, as recorded in Plat Book 38, Pages 38
and 39, of the Public Records of Pinellas County,
Florida; thence N 54025'30" W., 65.14 feet along the
southerly line of Gulf Boulevard; thence S 12040'00"
W., and parallel to the westerly boundary of the said
Lot 1, Block "C", Bayside Subdivision #5, a distance
boundary of 286 feet to the waters of Clearwater Bay
and thence easterly along the shore line of Clearwater
Bay 67 feet more or less to the intersection of the
shore line of Clearwater Bay and the westerly boundary
line of said Lot 1, Block "C", Bayside Subdivision #5,
thence N 12040' 00" E., along the westerly boundary of
the said Lot 1, Block "C", Bayside Subdivision #5, 295
feet more or less to the Point of Beginning, Section
17, Township 29 South, Range 15 East, Pinellas County,
Florida.
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COMPOSITE EXHIBIT "B"
Site Plan, Elevations and Floor Plans
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EXHIBIT "C"
COVENANT REGARDING HURRICANE EVACUATION
And DEVELOPMENT, USE AND OPERATION
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS ("Declaration") is
made as of the _ day of ,2009, by WILLIAM M. SHEPHARD,
Trustee U/AID 2/29/84 ("Developer").
Developer is the owner of fee simple title to the real property described in Schedule 1
attached hereto and made a part hereof (hereinafter the "Real Property"). The City of Clearwater,
Florida (the "City"), has amended it's Comprehensive Plan to designate Clearwater Beach as a
Community Redevelopment District pursuant to the Pinellas County Planning Council Rules in
order to implement the provisions of Beach by Design, a plan for the revitalization of Clearwater
Beach.
The designation of Clearwater Beach as a Community Redevelopment District (the
"Designation") provides for the allocation of Hotel Density Reserve Units as an incentive for the
development of mid-size quality hotels. Pursuant to the Designation, the allocation of Hotel
Density Reserve Units is subject to compliance with a series of performance standards, including
a requirement that resorts containing a hotel developed with Hotel Density Reserve Units shall
be closed and all Guests evacuated from such resorts as soon as practicable after the National
Hurricane Center posts a hurricane watch that includes Clearwater Beach. The purpose of such
evacuation is to ensure that such a Resort Hotel is evacuated in advance of the period of time
when a hurricane evacuation would be expected in advance of the approach of hurricane force
winds.
The City has granted, by City Council Resolution , passed and approved on
, 20_, Developer's application for Hotel Density Reserve Units pursuant to the
Designation, subject to Developer's compliance with the requirements of the Designation.
Developer desires for itself, and its successors and assigns, as owner, to establish certain rights,
duties, obligations and responsibilities with respect to the use and operation of the Real Property
in accordance with the terms and conditions of the allocation of the Hotel Density Reserve Units
to the City and the Designation, which rights, duties, obligations and responsibilities shall be
binding on any and all successors and assigns and will run with the title to the Real Property.
THEREFORE, in consideration of the covenants and restrictions herein set forth and to
be observed and performed, and in further consideration of the allocation of Hotel Density
Reserve Units to Developer, and other good and valuable consideration, the sufficiency of which
is hereby acknowledged, Developer hereby declares, covenants and agrees as follows:
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1. Benefit and Enforcement. These covenants and restnctIOns are made for the
benefit of Developer and its successors and assigns and shall be enforceable by them and also for
the benefit of the residents of the City and shall be enforceable on behalf of said residents by the
City Council ofthe City.
2. Covenant of Development. Use and Operation. Developer hereby covenants and
agrees to the development, use and operation of the Real Property in accordance with the
provisions of this Declaration.
2.1 Use. The use ofthe resort on the Real Property is restricted as follows:
2.1.1 A minimum of sixty-eight (68) units, which is the number of hotel units
allocated to Developer, shall be used solely for transient occupancy of one month
or thirty (30) consecutive days or less, must be licensed as a public lodging
establishment and classified as a hotel, and must be operated by a single licensed
operator of the hotel. No such hotel unit shall be used as a primary or permanent
residence.
2.1.2 All other units shall be licensed as a public lodging establishment. No unit
shall be used as a primary or permanent residence.
2.1.3 As used herein, the terms "transient occupancy," "public lodging
establishment," "hotel," "time share," and "operator" shall have the meaning given
to such terms in Chapter 509, Part I, Florida Statutes (2004).
2.2 Closure of Improvements and Evacuation. The Hotel developed on the Real
Property shall be closed as soon as practicable upon the issuance of a hurricane watch by the
National Hurricane Center, which hurricane watch includes Clearwater Beach, and all Hotel
guests, visitors and employees other than emergency and security personnel required to protect
the resort, shall be evacuated from the Hotel as soon as practicable following the issuance of said
hurricane watch. In the event that the National Hurricane Center shall modify the, terminology
employed to warn of the approach of hurricane force winds, the closure and evacuation
provisions of this Declaration shall be governed by the level of warning employed by the
National Hurricane Center which precedes the issuance of a forecast of probable landfall in order
to ensure that the guests, visitors and employees will be evacuated in advance of the issuance of
a forecast of probable landfall.
3 Effective Date. This Declaration shall become effective upon issuance of
all building permits required to build the project ("Project") and Developer's commencement of
construction of the Project, as evidence by a Notice of Commencement for the Project. This
Declaration shall expire and terminate automatically if and when the allocation of Reserve Units
to the Developer expires or is terminated.
4 Governing Law. This Declaration shall be construed in accordance with and
governed by the laws of the State of Florida.
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5 Recording. This Declaration shall be recorded in the chain of title of the Real
Property with the Clerk of the Courts of Pin ell as County, Florida.
6 Attorneys' Fees. Developer shall reimburse the City for any expenses, including
reasonable attorneys' fees, which are incurred by the City in the event that the City determines
that it is necessary and appropriate to seek judicial enforcement of this Declaration and the City
obtains relief, whether by agreement of the parties or through order of a court of competent
jurisdiction.
7 Severability. If any provlSlon, or part thereof, of this Declaration or the
application of this Declaration to any person or circumstance will be or is declared to any extent
to e invalid or unenforceable, the remainder of this Declaration, or the application of such
provision or portion thereof to any person or circumstance, shall not be affected thereby, and
each and every other provision of this Declaration shall be valid and enforceable to the fullest
extent permitted by law.
IN WITNESS WHEREOF, Developer has caused this Declaration to be executed this
_ day of ,2009.
In the Presence of:
Print Name
Print Name
As to "Developer"
CITY OF CLEARWATER, FLORIDA
By:
Print Name:
William B. Home, II,
City Manager
Print Name
As to "City"
Attest:
Cynthia E. Goudeau, City Clerk
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Countersigned:
Frank V. Hibbard, Mayor
Approved as to Form:
Leslie K. Dougall-Sides
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of
, 2009, by WILLIAM M. SHEPHARD, Trustee. He is [ ] personally
known to me or has [ ] produced as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
,2009, by WILLIAM B. HORNE, II, as City Manager of the City of
Clearwater, Florida, who is [ ] personally known to me or who has [ ] produced
as identification.
Notary Public
Print Name:
My Commission Expires:
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SCHEDULE "1"
Legal Description of Project Site
Lots 1 thru 5, Block "C", Bayside Subdivision #5,
according to the map or plat thereof as recorded in
Plat Book 38, Pages 38 and 39, Public Records of
Pinellas County, Florida, and begin at the
northwesterly corner of Lot 1, Block "C", Bayside
Subdivision #5, as recorded in Plat Book 38, Pages 38
and 39, of the Public Records of Pinellas County,
Florida; thence N 54025' 30" W., 65.14 feet along the
southerly line of Gulf Boulevard; thence S 12040' 00"
W., and parallel to the westerly boundary of the said
Lot 1, Block "C", Bayside Subdivision #5, a distance
boundary of 286 feet to the waters of Clearwater Bay
and thence easterly along the shore line of Clearwater
Bay 67 feet more or less to the intersection of the
shore line of Clearwater Bay and the westerly boundary
line of said Lot 1, Block "C", Bayside Subdivision #5,
thence N 12040'00" E., along the westerly boundary of
the said Lot 1, Block "C", Bayside Subdivision #5, 295
feet more or less to the Point of Beginning, Section
17, Township 29 South, Range 15 East, Pinellas County,
Florida.
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EXHIBIT "D"
COVENANT OF UNIFIED USE
PLEASE RETURN RECORDED DOCUMENT TO:
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Agreement") is executed this _ day of
,2009, by ("Developer").
WITNESSETH:
WHEREAS, Developer is the owner of the real property legally described on Schedule
"A" attached hereto and incorporated herein by reference (the "Real Property"); and
WHEREAS, Developer and the City of Clearwater, Florida (the "City") are parties to that
certain Development Agreement dated , 2009 (the "Development Agreement"),
pursuant to which the City has agreed that Developer may develop and construct upon the Real
Property a hotel project as described in the Development Agreement (the "Project"); and
WHEREAS, Developer intends to develop and operate the Real Property for a unified
use, as more particularly described in this Agreement.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Developer does hereby agree that, effective as of the date on which Developer receives all
permits required to construct the Project and Developer commences construction thereof, as
evidenced by a Notice of Commencement for the Project, the Real Property shall be developed
and operated as a hotel and fractional share/interval ownership project, as described in the
Development Agreement. The restrictions set forth in the preceding sentence shall expire
automatically when and if Developer's allocation of additional hotel units (as defined in the
Development Agreement) expires or is terminated. Nothing in this Agreement shall require
Developer to develop the Project or restrict Developer's ability to sell, assign, transfer or
otherwise convey its right in and to the Real Property or any portion or portions thereof to
umelated third-parties. Further, nothing in this Agreement shall preclude the purchase and sale of
one or more Fractional Share Units to be constructed as a part of the Project (the "Fractional
Ownership") (or Hotel Units (as defined in the Development Agreement) if sold in a
condominium form of ownership), to separate, umelated third parties, provided that such
Fractional Share Ownership or Hotel Units are operated and occupied as part of the Project as a
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single unified project throughout the term of this Agreement. Developer agrees that the City shall
have the right to enforce the terms and conditions of this Agreement.
Notwithstanding the foregoing, all Hotel Units may be operated by a single hotel operator
and all Fractional Share Units may be operated by a different, single management firm/operator.
IN WITNESS WHEREOF, Developer has caused this Agreement to be executed this
_day of ,2009.
In the Presence of:
Print Name
Print Name
As to "Developer"
CITY OF CLEARWATER, FLORIDA
By:
Print Name:
William B, Home, II,
City Manager
Print Name
As to "City"
Attest:
Cynthia E. Goudeau, City Clerk
Countersigned:
Frank V. Hibbard, Mayor
Approved as to Form:
Leslie K. Dougall-Sides
Assistant City Attorney
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STATE OF FLORIDA
COUNTY OF PINEL LAS
The foregoing instrument was acknowledged before me this _ day of
,2009, by WILLIAM M. SHEPHARD, Trustee. He is [ ] personally known
to me or has [ ] produced as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 2009, by WILLIAM B. HORNE, II, as City Manager of the City of
Clearwater, Florida, who is [ ] personally known to me or who has [ ] produced
as identification.
Notary Public
Print Name:
My Commission Expires:
22
SCHEDULE "A"
Legal Description of Project Site
Lots 1 thru 5, Block "C", Bayside Subdivision #5,
according to the map or plat thereof as recorded in
Plat Book 38, Pages 38 and 39, Public Records of
Pinellas County, Florida, and begin at the
northwesterly corner of Lot 1, Block "C", Bayside
Subdivision #5, as recorded in Plat Book 38, Pages 38
and 39, of the Public Records of Pinellas County,
Florida; thence N 54025'30" W., 65.14 feet along the
southerly line of Gulf Boulevard; thence S 12040' 00"
W., and parallel to the westerly boundary of the said
Lot 1, Block "C", Bayside Subdivision #5, a distance
boundary of 286 feet to the waters of Clearwater Bay
and thence easterly along the shore line of Clearwater
Bay 67 feet more or less to the intersection of the
shore line of Clearwater Bay and the westerly boundary
line of said Lot 1, Block "C", Bayside Subdivision #5,
thence N 12040'00" E., along the westerly boundary of
the said Lot 1, Block "C", Bayside Subdivision #5, 295
feet more or less to the Point of Beginning, Section
17, Township 29 South, Range 15 East, Pinellas County,
Florida.
H:\HSC\SHEPHARD\DevelopmentAgmt 11-23'09.doc
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