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10-01
RESOLUTION NO. 10-01 A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF CLEARWATER AND L.O.M., INC; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Clearwater is desirous of entering into a development agreement with L.O.M., Inc.; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section1. The Development Agreement between the City of Clearwater and L.O.M., Inc., a copy of which is attached as Exhibit "A," is hereby approved. Section 2. For the term of the Put Agreement, attached to the Development Agreement as Exhibit L, the City shall maintain a $9,300,000 balance in Project 315- 9xxx (Surf Style Condominium-Parking Unit) and shall not spend any portion of such funds for any purpose other than the purchase of the Parking Unit for so long as the City's obligations remain in effect. The Office of Management and Budget is hereby directed to insure the reserve is maintained on all appropriate operating plans, budgets, and accounts of the City. Section 3. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 18th day of February ,2010. ~~y~ Frank V. Hibbard Mayor Approved as to form: Attest: ~ Pamela K. Akin City Attorney Resolution NO.1 0-01 This instrument prepared by, or under the supervision of (and after recording, return to): Nancy Lash, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 KEN BURKE, CLERK OF COURT PINELLAS COUNTY FLORIDA INST# 2010047930 02122/2010 at 04:01 PM OFF REC BK: 16836 PG: 1817-2002 DocType:GOV RECORDING: $1582.50 for Clerk of 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 February 18, 2010 v8 MIA 180,825,646 Table Of Contents Article 1. DEFINITIONS .......................................................................................... ......2 1.01 Definitions ................................................................................................... ......2 1.02 Use of Words and Phrases ......................................................................... ......5 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 ........................................................................... ......8 Article 3. REGULATORY PROCESS ...................................................................... ......8 3.01 Land Development Regulations .................................................................. ......8 3.02 Development Approvals and Permits .......................................................... ......8 3.03 Concurrency ................................................................................................ ....10 Article 4. PLANS AND SPECIFICATIONS ..................................................................10 4.01 Plans and Specifications .................................................................................10 Article 5. PROJECT DEVELOPMENT ................................................................... .....11 5.01 Ownership of Property ................................................................................ .....11 5.02 City's Obligations ........................................................................................ .....11 5.03 Obligations of the Developer ...................................................................... .....12 Article 6. PROJECT FINANCING .......................................................................... .....12 6.01 Financing .................................................................................................... .....12 6.02 Notice of Project Financing to City ............... ..--................................. ...... ..... 13 6.03 Copy of Default Notice to City .................................................................... .....13 Article 7. INDEMNIFICATION ................................................................................ .....15 7.01 Indemnification by the Developer ............................................................... .....15 7.02 Indemnification by the City ......................................................................... .....16 7.03 Limitation of Indemnification ....................................................................... .....16 Article 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER .......................................................................................... .....17 8.01 Representations and Warranties ................................................................ .....17 8.02 Covenants .................................................................................................. .....18 Article 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY ............................................................................................................20 9.01 Representations and Warranties .....................................................................20 v8 MIA 180, 825,646 9.02 Covenants .......................................................................................................21 Article 10. CONDITIONS PRECEDENT .......................................................................21 10.01 Construction of Project ....................................................................................21 10.02 Responsibilities of the Parties for Conditions Precedent .................................22 Article 11. DEFAULT; TERMINATION ..........................................................................22 11.01 Project Default by the Developer .....................................................................22 11.02 Default by the City ...........................................................................................24 11.03 Obligations, Rights and Remedies Cumulative ...............................................25 11.04 Non-Action on Failure to Observe Provisions of this Agreement ..................... 25 11.05 Termination .....................................................................................................25 11.06 Termination Certificate ....................................................................................26 Article 12. ARBITRATION ............................................................................................27 12.01 Agreement to Arbitrate ....................................................................................27 12.02 Appointment of Arbitrators ...............................................................................27 12.03 General Procedures ........................................................................................28 12.04 Majority Rule ...................................................................................................29 12.05 Replacement of Arbitrator ...............................................................................29 12.06 Decision of Arbitrators .....................................................................................29 12.07 Expense of Arbitration .....................................................................................29 12.08 Accelerated Arbitration ....................................................................................30 12.09 Applicable Law ................................................................................................ 30 12.10 Arbitration Proceedings and Records ..............................................................30 Article 13. UNAVOIDABLE DELAY ...............................................................................31 13.01 Unavoidable Delay ..........................................................................................31 Article 14. FIRE OR OTHER CASUALTY; CONDEMNATION...... ............................... 32 14.01 Loss or Damage to Project ..............................................................................32 14.02 Partial Loss or Damage to Project ...................................................................33 14.03 Project Insurance Proceeds ............................................................................33 14.04 Notice of Loss or Damage to Project ...............................................................33 14.05 Condemnation of Project or Property; Application of Proceeds ....................... 33 Article 15. MISCELLANEOUS ......................................................................................34 15.01 Assignments ....................................................................................................34 15.02 Successors and Assigns .................................................................................35 15.03 Notices ............................................................................................................35 15.04 Applicable Law and Construction .................................................................... 36 15.05 Venue; Submission to Jurisdiction ...................................................................36 15.06 Estoppel Certificates .......................................................................................36 15.07 Complete Agreement; Amendments ...............................................................37 15.08 Captions .......................................................................................................... 37 15.09 Holidays ..........................................................................................................37 v8 MIA 180, 825,646 15.10 Exhibits ..................................................... ....................................................... 37 15.11 No Brokers ......................................................................................................37 15.12 Not an Agent of City ........................................................................................ 37 15.13 Memorandum of Development Agreement ......................................................38 15.14 Public Purpose ................................................................................................ 38 15.15 No General Obligation .....................................................................................38 15.16 Other Requirements of State Law ...................................................................38 15.17 Technical Amendments...... ............................................................................. 38 15.18 Term; Expiration; Certificate ............................................................................39 15.19 Approvals Not Unreasonably Withheld ............................................................39 15.20 Waiver of Jury Trial .........................................................................................39 15.21 Effective Date ..................................................................................................40 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 Intentionally Omitted ........................................................................................................ F Sidewalk and Turn-Lane Easement ................................................................................ G List of Required Permits and Approvals .......................................................................... H Project Development Schedule .................................................................. City Parking Garage Standards ....................................................................................... J Parking Structure Maintenance Standards ..................................................................... K "PUT" Agreement Form ................................................................................................... L v8 MIA 180,825,646 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 18th day of February, 2010, by and between THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the "City"), 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 300 public parking spaces; WHEREAS, the Developer proposes to develop a multi-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 approximately three hundred and forty nine (349) parking spaces in the project, of which three hundred (300) 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 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 February 18, 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 by corporate resolution 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) "Break Wall Easement" means that certain Construction, Access and Maintenance Easement Agreement by and between the City and the Developer dated December 17, 2009 and recorded January 29, 2010 in 2 Official Records Book 16817, Page 1071 of the Public Records of Pinellas County, Florida. (7) "City" means the City of Clearwater, Florida, a Florida municipal corporation. (8) "City Council" means the governing body of the City. (9) "City Parkin Garage Standards" means the City's standards for the construction of City-owned public parking facilities, which standards are attached hereto as Exhibit J. (10) "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 September 30, 2010. (11) "Completion Date" means the date on which a conditional 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. (12) "Conceptual Plans" means the conceptual plans for the Project approved by the parties attached hereto as Exhibit B. (13) "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. (14) "Effective Date" means the date of approval and final execution of the Agreement by the parties. (15) "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. (16) "Expiration Date" means the date which is five (5) years following the Completion Date. (17) "Flood Zone_ Change" shall have the meaning given to it in Section 2.03(4). (18) "Governmental Authori " means any federal, state, county, municipal or other governmental entity or any instrumentality of any of them, having jurisdiction over the Project. 3 (19) "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. (20) "Parkin Unit" shall have the meaning given to it in Section 2.03(1). (21) "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 Project, or any part thereof, to commence, continue or be completed. The term Permits shall include FEMA's approval of the Flood Zone Change. (22) "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. (23) "Project" means, generally, the development and construction of a 41,070+/- square foot retail/commercial project with 49 parking spaces, and a commercial parking garage containing 300 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. (24) "Project Financing" shall have the meaning given to it in Section 6.01. (25) "Project Lender" shall have the meaning given to it in Section 6.01. (26) "Pry" means that certain property located at 311 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. (27) "Put Agreement" shall have the meaning given to it in Section 6.01. (28) "Retail Unit(s)" shall have the meaning given to it in Section 2.03(1). (29) "Termination Date" means the date a termination certificate is issued pursuant to Article 11. (30) "Unavoidable Delay" means a delay as described in Article 13 hereof (31) "Vacation of Right-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. 4 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," "herein before," "hereinafter" and other equivalent words refer to this Agreement and not solely to the particular portion thereof in which any such word is used. 1.03 Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (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 City: (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 Project. 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 Units : 41,070+/- square foot retail/commercial unit(s) on the ground floor of the building consisting of approximately 34,183 square feet of retail space and 6,887 square feet of restaurant space, together with a delivery area and approximately 49 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. 5 (b) Parking Unit: 300 parking spaces located on the 2nd through 6th floors of the building (the "Parking Unit"). (2) Formation of Condominium. The Developer shall create a three-unit commercial condominium for the Project consisting of the above- described Parking Unit and two (2) Retail Units, one of which will include approximately 6,887 square feet of restaurant space and the other of which will include the remainder of the Retail Unit as described above (i.e., approximately 34,183 square feet of retail space, 49 parking spaces and the delivery area). Accordingly, no later than the Completion Date, the Developer shall 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, with a consent or joinder from any then existing Project Lender having any record interest in any mortgage encumbering the interest in the Property as required by Section 718.104(3) of the Florida Statutes. The condominium documents shall not be materially modified or amended prior to the expiration or earlier termination of the Put Agreement without the prior written consent of the City, which consent shall not be unreasonably withheld. (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 300 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 (i) in substantially the form of the covenant attached to this Agreement as Exhibit E, (ii) recorded prior to the condominium documents under Section 2.03(2) above, (iii) executed by the Developer, and (iv) joined in and consented to by all lien holders and any other person or entity with an interest in the Property superior to and with priority over the Parking Covenant, pursuant to a joinder and consent that makes the Parking Covenant a valid, binding, permanent and superior restrictive covenant against the Property (subject to the terms thereof). The joinder and consent from any then existing Project Lender holding a mortgage against the Property shall be substantially in the form attached to the Parking Covenant as Exhibit E. 6 (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, (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, and (e) comply with all other obligations of the City under that certain (i) letter agreement dated December 17, 2009 regarding the Break Wall, and (ii) the Break Wall Easement. 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 and repair of the Break Wall, unless the cost of maintenance and repair is allocated to the City under the Break Wall Easement. (5) Maintenance Easement: The City has provided the Developer with an easement for construction of, access to and from, and maintenance of, the Break Wall, which easement is appurtenant to the Property, pursuant and subject to the terms and conditions of the Break Wall Easement. (6) Sidewalk and Turn-Lane Easement. No later than 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 (i) in substantially the form of the easement attached to this Agreement as Exhibit G, (ii) in the location indicated in said exhibit, (iii) recorded prior to the condominium documents under Section 2.03(2) above, (iv) executed by the Developer and the City, and (v) joined in and consented to by any then existing Project Lender holding a mortgage against the Property (pursuant to the Joinder of Mortgagee substantially in the form attached to Exhibit G). In the event of a conflict between the terms of this Agreement (on the one hand) and the terms of the Break Wall Easement and other specific instruments attached to this Agreement as Exhibits D, E or G (on the other hand) with respect to the subject matter thereof, the terms of the Break Wall Easement such other 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 7 act in a reasonable manner hereunder, provide the other party with complete and updated information from time to time, with respect to the conditions such party is responsible for satisfying hereunder and make its good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this Agreement are carried out to the full extent contemplated hereby and the Project is designed, constructed, completed and operated as provided herein. ARTICLE 3. REGULATORY PROCESS. 3.01 Land Development Regulations. (1) The Property is designated Tourist District in the City's Land Development Regulations. (2) The City's current Land Development Regulations shall govern the development of the Project for the duration of this Agreement. Subsequently adopted ordinances and codes of the City which are of general application not governing the development of land shall be applicable to the Property, subject to the terms and conditions of this Agreement. 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 o f the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions. (2) Schedule. A Project Development Schedule is attached to this Agreement as Exhibit 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 8 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) Cif 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. 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 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 9 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 S ecifications. 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 Parkin Gara e 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 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 S. 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 10 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 and such other conditions as City Council reasonably deems appropriate, which conditions shall be expressly set forth in the ordinance vacating the right-of-way. The time period for compliance with such condition in the ordinance shall be not less than twenty-four (24) months, provided that if the Completion Date is extended for any reason (whether by unavoidable delay or otherwise), the outside date for compliance with such condition for purposes of the Vacation of Right-of-Way shall be extended for a commensurate period of time. 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. 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 three hundred (300) parking spaces within the Project available for public parking, of which not less than two hundred fifty (250) parking spaces will be 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 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. 11 (4) Commencement of Construction. The Developer shall commence construction of the Project by September 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 notify the City that it will 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 establish and maintain a capital improvement project account of $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. 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 name and address of the Project Lender(s) and documenting the type of financing that the Project Lender(s) has issued in favor of the Developer for the Project. 6.03 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 12 written notice thereof to the City by certified mail, return receipt requested, or by overnight courier or by hand deliver. Such notice from the Project Lender to the City shall state the basis of the default by the Developer and shall include copies of any pleadings in any proceeding instituted by the Project Lender(s) incident thereto. 6.04 Notices to/from Project Lenders. Any notice or other communication which the City shall desire or is required to give to or serve upon Project Lender shall be in writing and shall be served by certified mail, return receipt requested, or overnight courier or by hand delivery, addressed to such Project Lender at its address as set forth in the sworn statement to the City under Section 6.02, or at such other address as shall be designated from time to time by such Project Lender by notice in writing given to the City. 6.06 Rights of Project Lenders. The City hereby agrees with and for the benefit of each Project Lender: (1) When giving notice to the Developer with respect to any default under this Development Agreement or any exercise of any right to terminate this Development Agreement, the City will also give a copy of such notice to each Project Lender, and no such notice to the Developer shall be deemed effective with respect to any Project Lender unless such notice is also given in said manner to each such Project Lender. (2) In case the Developer shall default in respect of any of the provisions of this Development Agreement, any Project Lender shall have the right, but not the obligation, to cure such default and the City shall accept performance by or on behalf of such Project Lender as though, and with the same effect as if, the same had been done or performed by the Developer. A Project Lender will have a period of time after the service of such notice upon it within which to cure the default specified in such notice, or cause it to be cured, which is the same period for cure, if any, as is given to the Developer under this Development Agreement in respect of the specified default after the giving of such notice to the Developer, plus an additional period of thirty (30) days. In the event of a default (or in the event that the City is seeking to terminate this Development Agreement by reason of a default) which is curable without Project Lender being in possession and control of the Property, but cannot reasonably be cured within said period, the period of time for cure shall be extended for so long as any Project Lender is diligently and continuously proceeding to attempt to cure such default, provided that the Project Lender has begun proceedings to cure the default within the said period. (3) With respect to any default by the Developer under this Development Agreement that is not susceptible of being cured by the Project Lender without being in possession and control of the Property, the City shall take no action to terminate this Development Agreement on account of such default if, within ninety (90) days after notice of the default from the City 13 (subject to any bankruptcy stays), the Project Lender shall have commenced appropriate proceedings to obtain possession of the Property (including possession by a receiver) or to foreclose the Project, and shall thereafter be prosecuting the same to completion in good faith, with diligence and continuity (subject to any bankruptcy stays); provided, however, that (i) the Project Lender shall conclude any proceedings to obtain possession of the Property or to foreclose the Project (as applicable, including the removal of any bankruptcy stay) within eighteen (18) months following commencement of such action, (ii) during the period of the City's forbearance, the Project Lender shall comply with such of the terms, covenants and conditions of this Development Agreement as are then susceptible of compliance by the Project Lender, and (iii) if and after the Project Lender obtains possession of the Property, the Project Lender shall promptly commence and diligently pursue the curing of all defaults under this Development Agreement then susceptible of being cured by the Project Lender. (4) The City agrees to consider reasonable modifications to this Section 6.05 requested by any Project Lender in connection with the closing of the Project Financing, provided that such modifications do not result in any changes in the Project to be constructed hereunder or impair the City's rights or impose any additional obligations on the City or adversely affect the City's remedies in the event of any default. (5) The provisions of this Section 6.05 in favor of the Project Lender shall inure to the benefit of the Project Lender and its successors, assigns and designees, and also any other purchaser or transferee of the Project and this Development Agreement pursuant to any foreclosure or bankruptcy proceedings, or assignment in lieu thereof. 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, 14 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 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 15 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. 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 16 or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, or (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 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, subject to closing the Project Financing. (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. 17 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 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 18 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 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, or (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 19 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 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: 20 (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, 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) FEMA shall have approved the Flood Zone Change, all appeal periods allowing for any challenge of the Flood Zone Change shall have expired and the Flood Zone Change shall have become permanently effective (following final resolution of any appeals, if applicable). (3) The Project Financing shall have closed and conditions to funding shall have been satisfied. (4) 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 any one or more of the following: (a) The Developer shall fail to perform or comply with any material provision of this Agreement applicable to it within the time prescribed therefor, after receipt of a notice from the City pursuant to 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 21 (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. (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. (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. 22 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)(x), 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. (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. 23 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 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, 24 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 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. (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 25 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 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 26 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 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. 27 (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. (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. 28 (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. (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 a five-year period preceding the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73 and 74, Florida Statutes, restoration in connection with any of the foregoing or any other cause beyond the reasonable control of the party performing the obligation in question, including, without limitation, such causes as may arise from the act of the other party to this Agreement, or acts of any Governmental Authority (except that acts of the City shall not constitute an Unavoidable Delay with respect to performance by the City). 29 (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 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 30 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 o f 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. (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 31 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 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 32 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: L.O.M., Inc. c/o Surf Style, Inc. 4100 N. 28th Terrace Hollywood, Florida 33020 Attn: Controller To the City: City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager with copies to: 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 33 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 partner thereof available for service of process as a resident of the State of Florida, or if any permitted assignee thereof shall be a foreign corporation, partnership or other entity or shall have no officer, employee, agent, or general partner available for service of process in the State of Florida, the Developer hereby designates the Secretary of State, State of Florida, its agent for the service of process in any court action between it and the City, or both, arising out of or relating to this Agreement and such service shall be made as provided by the laws of the State of Florida for service upon a non- resident; provided, however, that at the time of service on the Florida Secretary of State, a copy of such service shall be delivered to the Developer at the address for notices as provided in 18.03. 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 34 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. 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 Recording of Development Agreement. Pursuant to §163.3239 of the Florida Statutes (2004), the City authorizes and hereby directs the City Clerk to record this Agreement in the public records of Pinellas County, Florida, within fourteen (14) days 35 after City Council approval of this Agreement. The Developer shall pay the cost of such recording. A copy of the recorded Agreement shall be submitted by the City to the state land planning agency within fourteen (14) days after this Agreement is recorded, with evidence of such submittal to be provided to the Developer. 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 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. 36 (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 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. As provided by §163.3239 of the Florida Statutes (2004), this Agreement will become effective after being recorded in the Public Records of Pinellas County, Florida and 30 days after having been received by the state land planning agency. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - 37 SIGNATURES ON FOLLOWING PAGE(S)] 38 IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the day and year first above written. Countersigned: CITY OF CLEARWATER, FLORIDA f - By: &ad -U'- ank V. Hibbard William B. Horne II Mayor City Manager Approved as to form: Likk- Pamela K. Akin City Attorney STATE OF FLORIDA COUNTY OF I?YDVV-" Attest: By: { Name: F1 1? Title: Z?X-4? before me this -+ day of 'F?ruQ r , The foregoing instrument was a?ck?nowledged as of 1?CS1 01 Z 2010 by t?Vl 0VA1LV11Vl L.O4Aof ida corporation, on behalf of the corporation. By: lic ic Notary Pub www wet*--S My Commission Expires: 12430, 10 Printed, typed or stamp 39 NOTARY PUBLIC-STATE OF FLORIDA Lauren Weeks =Commission # DD614429 Expires: DEC. 30, 2010 BONDED THRU AnANnC BONDING Co., INC. L.O.M., INC., a Florida corporation EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Leaal Description of Propertv prior to Vacation of Right-of-Way: 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. Legal Description of Pro a after Vacation of Right-of-Way: 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 FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°15'44"E a distance of 35.00 feet to the Point of Beginning. 1 01 MIA 180,692,234 liO I, !. I! !' Ii i! !CIl54.PlNt<SAU6LE Ilo[!] il !. ~I ~~ i! 3 ~ ICI138 - vmlllA CREAM ii.rn It .. II ~* i~ " ., ~e ICI170-Sl(YR()CKETREO .1 lID jj gi ~i' , i I' ., i= ,g Ii !I I~ o' n I' 01 'I 2, @' ~! I~ I~ ~, si !I .. " U ,~ Ii ii Ii I, I! ~~ as ~l !. ~i i, r I! ,! ill 1'- <~~ III !II o ICI343. PEACH PUFF rn o ICI15~. BAY CORAL I!J ; ;1 ,--- ~t--- mt~~; " ~ -,!!= 4THl~~~ ~l' ~"'~, ~~ ~-.(l' , ~ I ~ fr~~" i.' I' 36" PlN~E GROVE MEDAlLION [!] -~ [!] 2 ,.-------- STANDING SEMl j METAl ROOF ..-.- -~ ~- -----.- If SURF STYlE lOGO ~ ~ -- --. - -~~--~.. ~ GRAPHIC 8,.V.I./ER , ACRYlIC TEXTURED ONMTLFRAME .....~'_'! PAINT ON PRECAST - ST"'-"TUHE._~ r-.-:~---;I- - ___CONeIlET"lYP_ --;'1 ~ ~~ ' I n 7 :: ~ I ';;HlEvt'I :! .r -l~ ~ I !Co2' '1 ' -,~. .I .- ,I --1 ~ [!] 1 ~GROUNOLEI/El. _~ ~. , --I.D.SIG"I \ '------ l,llETA.l FR.ANED FABRIC ....WNING / ST~ING SEAM METAL ROOf , ACRYliC TEXTURED PAlN'T ON PRECAST CONCRETE, TYP ,~ "....-l. .! 7,..T ;i .1 ~';LEvEt ., "I ---... ~ ;1 ~7 -'I~ ~ .~ / m a t TI m 8000000 ~ ~~ 0~RTH ELEVATION ~- REVEALS IN PRECAST PANEL TYP. OVERALL BUILDING ELEVATIONS o 5''''' la.r ~- - SCALE: 3132" = ,'.q' SCALE: 3132"_1'_0" :=.r::g (.) -: c~ a::~ LL. ~ :z ~ -"" LL.~ E '" ~ ,0 ~g o N -.f o is z ~ if (l. lB w I:!: 8 ll: lL ( o ~ o C/) 0:: ~ W~ 1= I- en -<( is o::~ ~ co IV' a; - <(LL iiJ W Cl ....JWI ~ ~....JU Cl ()( :! W 15 c/)LLm:;j LLOffi 15 o::>-~> :JI-( 0 fJ)-~ ()~ W ~ U D A401 =E:~~~~~~,,;::~~~,,~~':~O;:'::Jrt;',~c=~';~:=~~u~~~rr~":~~=!l:C~~~'-=~~~~~::~=~~><<;~~~~J~~~~::X....:i~I':t~~=~E~~~::=~~,,::,,':~~=.~~::-'~O:::CT~ 0~. ~ ~ . . ~ , mo r< mm <;:0 )>)> :!r or ZOJ UlC r o Z G) "." Dale " OslO ~~ .... pl ~ .... i5 z IB ~~ 5~ mil ~ ~ '.. j~, "'" '''.''. ~;!1"!:' ~ ~ l1 ~ : '1& 1 1 1 < i!! PROGRESS PRINT Nov 04, 2009 10:49am ~ o I\.) :101 SURF STYLE / BRITTS CITY OF CLEARWATER CLEARVVATER BEACH OVERALL BUILDING ELEVATIONS G ':"3' I -/ ~- G \ ~ FLORIDA ~ . :;~ I I ~ ~ ~ ~ " G o ~ IBO o o I - \1 o~ """,,.-:;.J I 1@ t:=! ~ V l~ I 12~ r~~ '.;;Ii ~g ~~ ~. ~~ ~~ ~ I B I I l J I I "'"" ,'" , I ,~,~t'H L~~~~, 1 ~l ~ ~ ~ ~ 'II 'II ~I~ '~ :;~ '~ \ \ \ <0 n ~~ @0 ~ ~ " FINFROCK FINFROCK DESIGN, INC. I ... ,. ( t" .:."~\;. :.t ,~ ~;..,: I ~.1.1 Efl (., riiJ 1:iIl E9 (11 (iil riiJ !!&J l 11.1.1 Exhibit B 1 SKETCH of DESCPXPTTON THIS IS NOT A BOUNDARY SURVEY I f r r , ' X82' f 5 ' ' ,35.O r ' Q a p.0.9. LOT 59 NW Corner Lot so SCALE : I" = 50' 0' 50' 100' LOT 106 LOT 60 LOT 61 LOT 62 SW Comer --- r LDt 62 + + r 1 LOT 63 1 CURVE DATA LOT 111 CURVE RADIUS DELTA ANGLE ARC LENGTH CHORD LENGTH CHORD SEARING C1 6017.52' 1 01.4254" 180.12' 180.11' 1 SW35'031V C2 5982.52" 01'42'54" 179.08' 179.08' N0tr35'03 r r , r r w r r + r r a ' r + 4r ; r r r r 0 , r I ?.L ' ? arI i r + r . r r f 1 r r r r r 1 The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62. THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plot book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin of the Northwest comer of said Lot 60; thence 180.12 feet along the Westerly boundary of said Late 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by o chord distance of 180.11 feet, bearing SOS'35'03'W to the Southwest corner of said Lot 62; thence N80'34'24W along the Westerly extension of-the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5962.32 feet, subtended by a chord distance of 179.08 feet, bearing N08'35'03'E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence SOZ15'44"E a distance of 35.00 feet to the Point of Beginning. Contains 6,286.20 square feet (0.144 acres), more or less. NOTES: LEGEND I. NO UNDERGROUND 1NS1ALLATK1NS OR wDR94EMM HAVE BEEN LOCATED EXCEPT AS SHOWN. ID PL r? manik`fam DF b w Ala esaggppr 2. NO INSTRUMENTS OF RECORD RFFLECDNG EASMOM, RPIT OF WAY AND/OR OWNERSHP WERE FURNISHED TO THIS SURVEYOR OWT AS SOWN. 3. THIS SKETCH DOES NOT REFLF,CT OR DETERL24E O HIP. 4. USE OF THIS MOM BY ANDNE OTHER TK* THOSE PREPARED FOR WILL BE THE RE-USERS SOLE RISK WITHOUT LIABILITY To THE SURVEM l RELO N<J9faD 5- THE SKETCH WAS PREPARIM MIRWUT THE BENEFIT OF A CURREt(T TIRE COMMITMENT AND IS Pae P1TC POW OF 8810a Paver OF CM084C<]M SECT TO EASEMFJM RMM-OF-SWAY AND SI1plAR MATTERS OF fiLE 6. MMAtI BASSO ON THE WESTERLY RKHT OF WAY UNE OF GULR" SODUWARD AS BEARING SW35.03-W (ASSL?iIED). Prepared K ith Z for and Certified T0: D ATE:: Drowing No. 902601.dny - - Project No. 9026 e o yac and Associates, Inc. S eptember 8, 2009 Checked By KOU Field Book Pages Drawn By JAC SURVEYOR'S CERTIFICATE SUNCOAST LAND SURVEYING, Inc. 1 ?y =h that IAe SKETCH hum •w pxeambd sneer my r?oNS1eLE cNA= m t e) Nary me mew the MWI1M TEDOM L SIANOARJS ad rarlh by 111 FOREST LAKES BOULEVARD ? RAWk 116WD P111011350M- LAND SUM-I'M in CMolar 61017-& RAI" OLDSMAR, FLA. 34677 MWI31R M 000E FNN"A ba So*m 473 W nOaX STAMPS. W fiM 1 "HODT THE 9W V AND THE ORIMNAL W" SEK OF A FLORIDA LICENSED BOUNDARY - TOPOGRAFHC CONSTRUCTION STAKEOUT .RNWE" no MAf W. L 4513 PHONE: (813) 854-1342 FAX (813) 855-6890 Y A. COPET.AND, LS NO-5279 1 LOT 108 r + -------------- ---------- LOT r 109 rt -- y_ + - ; r , LOT 110 + , Exhibit C This instrument prepared by, or under the supervision of (and after recording, return to): Gary A. Saul, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, FL 33131 DECLARATION OF SURF STYLE CLEARWATER BEACH CONDOMINIUM L.O.M., Inc., a Florida corporation (the "Declarant"), hereby declares: Introduction and Submission 1.1 The Land. The Declarant owns the fee title to certain land located in Pinellas County, Florida, as more particularly described in Exhibit "1" annexed hereto (the "Land"). 1.2 Submission Statement. The Declarant hereby submits the Land and all improvements erected or to be erected thereon and all other property, real, personal or mixed owned by Declarant, which is now or hereafter situated on or within the Land - but excluding all public or private (e.g. cable television) utility installations therein or thereon - to the condominium form of ownership and use in the manner provided for in the Florida Condominium Act as it exists on the date hereof and as it may be hereafter renumbered. Without limiting any of the foregoing, no property, real, personal or mixed, not located within or upon the Land as aforesaid shall for any purposes be deemed part of the Condominium or be subject to the jurisdiction of the Association, the operation and effect of the Florida Condominium Act or any rules or regulations promulgated pursuant thereto, unless expressly provided. All provisions of this Declaration (as hereinafter defined), the Articles (as hereinafter defined), the By-Laws (as hereinafter defined) and applicable rules and regulations of the Association (as hereinafter defined) shall, to the extent applicable and unless otherwise expressly herein or therein provided to the contrary, be perpetual and be construed to be covenants running with the Condominium Property (as hereinafter defined) and with every part thereof and interest therein, and all of the provisions hereof and thereof shall be binding upon and inure to the benefit of the Owner and any subsequent owners of any Unit (as hereinafter defined) and their respective heirs, personal representatives, successors or assigns, but the same are not intended to create, nor shall they be construed as creating, any rights in or for the benefit of the general public. All present and future Unit Owners (as hereinafter defined), tenants and occupants of Units shall be subject to and shall comply with the provisions of this Declaration and any applicable rules and regulations adopted by the Association in accordance with this Declaration, as this Declaration, the Articles, the By-Laws and such rules and regulations may be amended from time to time in accordance with this Declaration. The acceptance of a deed of conveyance, or the entering into of a lease, or the entering into occupancy of any Unit, shall constitute an adoption and ratification by such Unit Owner, tenant or occupant of the provisions of this Declaration (including, but not limited to, a ratification of any appointments of attomeys-in-fact contained herein) and the Exhibit D rules and regulations of the Association, as they may be amended from time to time, in accordance with this Declaration. 1.3 Name. The name by which this condominium is to be identified is SURF STYLE CLEARWATER BEACH CONDOMINIUM (hereinafter called the "Condominium"). 2. Definitions. The following terms when used in this Declaration and in its exhibits, and as it and they may hereafter be amended, shall have the respective meanings ascribed to them in this Section, except where the context clearly indicates a different meaning: 2.1 "Act" means the Florida Condominium Act (Chapter 718 of the Florida Statutes) as it exists on the date hereof and as it may be hereafter renumbered. 2.2 "Allocated Expenses" means and shall include: (a) All expenses associated with a Shared Component (as hereinafter defined) including, but not limited to, the expenses of maintenance, operation, repair or replacement of a Shared Component, excluding expenses associated with a Casualty or a Taking (each as hereinafter defined), which expenses are allocated between the Unit Owners in proportion to each Unit Owners Allocated Interest. (b) Costs and expenses of capital improvements and betterments, additions and alterations to and/or relocations of a Shared Component, which costs and expenses are allocated between the Unit Owners in proportion to their applicable Allocated Interest. (c) Expenses declared Allocated Expenses by the provisions of this Declaration or by the By- Laws of the Association. 2.3 "Allocated Interest" means, with respect to any Unit, the proportionate undivided responsibility for the Allocated Expenses related to each Shared Component as set forth on Exhibit 113" attached hereto, and otherwise as may be set forth throughout this Declaration (such Allocated Interest being different and distinct from the Unit Owners Percentage Shares, and varying with each Shared Component). 2.4 "Apertures" shall have the meaning given to it in Section 3.3(b)(iv) below. 2.5 "Articles" or "Articles of Incorporation" mean the Articles of Incorporation of the Association, as amended from time to time. 2.6 "Assessment" means a share of the funds required for the payment of Common Expenses which from time to time is assessed against the Unit Owners. 2.7 "Association" or "Condominium Association" means SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit, the entity responsible for the operation of the Common Elements of the Condominium in accordance with the terms of this Declaration and the Act. 2.8 "Association Property" means that property, real and personal, if any, which is owned or leased by, or is dedicated by a recorded plat to, the Association for the use and benefit of its members. -2- 2.9 "Board" or "Board of Directors" means the board of directors, from time to time, of the Association. 2.10 "By-Laws" mean the By-Laws of the Association, as amended from time to time. 2.11 "Casualty" means any kind or manner of damage, destruction, or physical loss of any kind affecting any portion of the Condominium Property, from any cause whatsoever, including fire, storm, hurricane, flood, earthquake, explosion, act of God, act of war, structural or mechanical failure, or any act or failure to act of any person, whether or not the same may be insured or insurable, other than as a result of (a) normal obsolescence or ordinary wear and tear, (b) any Taking, or (c) any voluntary demolition or removal of improvements by one or more Unit Owners or the Association pursuant to the provisions of this Declaration. 2.12 "Charges" mean a share of the funds required for the payment of Common Expenses, Allocated Expenses or other charges hereunder, including, without limitation, charges levied by the Association, charges levied by a Responsible Unit Owner (as hereinafter defined), Allocated Expenses, insurance related expenses, and all costs and expenses for the maintenance, management, operation and insurance of the Condominium Property, which share may from time to time be levied or assessed against some, but not all Unit Owners, in accordance with the provisions and terms of this Declaration. Charges are not intended to be Assessments which are governed by the Act, but rather are amounts imposed and secured under the terms of this instrument and common law. 2.13 "Committee" means a group of Board Members, Unit Owners or Board Members and Unit Owners appointed by the Board or a member of the Board to make recommendations to the Board regarding the Association budget or to take action on behalf of the Board. 2.14 "Common Elements" mean and include: (a) The portions of the Condominium Property which are not included within the Units and/or Association Property. (b) An easement of support in every portion of a Unit which contributes to the support of the Building. (c) Any other parts of the Condominium Property designated as Common Elements in this Declaration or required to be Common Elements pursuant to the Act. 2.15 "Common Expenses" mean all expenses incurred by the Association for the operation, maintenance, repair, replacement or protection of the Common Elements and Association Property, the costs of carrying out the powers and duties of the Association, and any other expense, whether or not included in the foregoing, designated as a "Common Expense" by the Act, the Declaration, the Articles or the Bylaws. For all purposes of this Declaration, "Common Expenses" shall also include, without limitation: all reserves required by the Act or otherwise established by the Association (but same shall not preclude the waiving of reserves as permitted by the Act), regardless of when reserve funds are expended; (d) any valid charge against the Condominium Property as a whole, the cost of which has not been allocated to one or more Unit Owner(s) under the terms of this Declaration, but which shall be shared among the Unit Owners in proportion to each Unit Owner's Percentage Share, (e) all expenses related to the installation, repair, maintenance, operation, alteration and/or replacement of any Common Element Life Safety -3- Systems (as hereinafter defined), and (f) any unpaid share of Common Expenses or Assessments extinguished by foreclosure of a superior lien or by deed in lieu of foreclosure. 2.16 "Common Surplus" means the excess of all receipts of the Association collected on behalf of the Association, including, but not limited to, Assessments, rents, profits and revenues on account of the Common Elements, over the amount of Common Expenses. 2.17 "Condominium" shall have the meaning given to it in Section 1.3 above. 2.18 "Condominium Parcel" means a Unit together with the undivided share in the Common Elements which is appurtenant to said Unit; and when the context permits, the term includes all other appurtenances to the Unit. 2.19 "Condominium Property" means the Land, Improvements and other property described in Section 1.2 hereof, subject to the limitations thereof and exclusions therefrom. 2.20 "County" means the County of Pinellas, State of Florida. 2.21 "Clearwater Beach Project" or "Surf Style Clearwater Beach Condominium" means the Land hereby submitted to condominium ownership by Declarant, as well as the Improvements thereon. 2.22 "Declarant" shall mean and refer to L.O.M., Inc., a Flodda corporation, and its successors and assigns. 2.23 "Declaration" or "Declaration of Condominium" means this instrument and all exhibits attached hereto, as same may be amended from time to time. 2.24 "Dispute Resolution Plan" shall have the meaning set forth in Section 13.2 below. 2.25 "First Mortgage" means a mortgage (or two or more mortgages of equal priority) which creates a lien (or liens) on a particular Unit having first and paramount priority as among mortgagees under applicable law. 2.26 "First Mortgagee" means the holder of a First Mortgage. 2.27 "Force Majeure" shall mean "Acts of God", labor disputes (whether lawful or not), material or labor shortages, restrictions by any governmental or utility authority, civil riots, floods or other causes beyond a party's control. 2.28 "Improvements" mean all structures and artificial changes to the natural environment (exclusive of landscaping) located on the Condominium Property. 2.29 "Insurance Trustee" shall have the meaning given in Section 2.2(b) below. 2.30 "Land" shall have the meaning given to it in Section 1.1 above. 2.31 "Law" shall mean all present and future laws, ordinances, orders, rules, regulations and requirements of all federal, state, county and municipal govemments, courts, departments, agencies, commissions, boards and offices and of any other body or board or sovereign -4- concurrently or successively exercising similar functions, and of any other lawful authority having jurisdiction over the Condominium Property but expressly excluding changes to the Act or rulings promulgated thereunder. 2.32 "Life Safety Systems" mean and refer to any and all emergency lighting, emergency generators, audio and visual signals, safety systems, sprinklers and smoke detection systems, which are now or hereafter installed in the Building, whether or not within the Units. Without limiting the generality of the foregoing, when the context shall so allow, the Life Safety Systems shall also be deemed to include all means of emergency ingress and egress, which shall include all stairways and stair landings serving more than one Unit or a Unit and any portion of the Common Elements. Notwithstanding the breadth of the foregoing definition, nothing herein shall be deemed to suggest or imply that the Building or the Condominium contains any such Life Safety Systems. 2.33 "Mortgagee" means the holder of a mortgage on a Unit. 2.34 "Parking Unit" means and refers to the "Parking Unit" as more particularly identified on Exhibit "2" attached hereto. Subject to the other provisions of this Declaration, the Parking Unit is designed and intended to be used for any purpose permitted by applicable zoning ordinances. References herein to "Units" or "Parcels" shall include the Parking Unit unless the context would prohibit or it is otherwise expressly provided. Notwithstanding the designation of the Unit as the "Parking Unit", the name alone shall not restrict its use, as the Parking Unit may be used for any lawful purpose. The Retail Unit Parking Area (as hereinafter defined) is not within the Parking Unit. 2.35 "Pass-thru" or "Central Pass-thru" means and refers to that portion of the Condominium Property identified as such on Exhibit 7 attached hereto. 2.36 "Percentage Share" means the undivided interest in the Common Elements appurtenant to each Unit as set forth in Section 5.1 below. 2.37 "Permittees" means and includes any Unit Owner's tenants, sub-tenants, contractors, subcontractors, agents, employees, licensees, and invitees and their respective officers, directors, contractors, subcontractors, agents, employees, licensees, invitees, customers, and visitors. 2.38 "Prime Rate" means a varying rate of interest from time to time, equal to the "Prime Rate" as reported from time to time in the "Money Rates" section of The Wall Street Joumal, as published and distributed in New York, New York, or if such rate shall cease to be published, such other rate as shall at the time be representative of the rates announced by major U.S. money center banks as the typical rate of interest charged on unsecured corporate loans. 2.39 "Repair Work" means all maintenance, repair and replacement work and capital repair and replacement work, including costs of plans and specifications, permits and inspections fees, supervision, and other related costs, whether due to ordinary wear and tear, physical or economical obsolescence or other causes, but excluding costs associated with a Casualty or a Taking. 2.40 "Responsible Insurance Party" means and refers to the Association, with respect to Common Elements, and the Responsible Unit Owner, with respect to the Shared Components. -5- 2.41 "Responsible Unit Owner'" means the Owner of a Unit in which a specified Shared Component is located and who is designated to operate, maintain, repair, improve and insure, as applicable, the applicable Shared Component and to perform such other duties imposed on it hereunder relative to the applicable Shared Component. 2.42 "Restoration" means the repair, restoration, replacement, or reconstruction of any Improvements, structures, fixtures, or equipment that shall be affected by any Casualty or Taking to substantially the same design, condition, and functionality as existed prior to such Casualty or Taking, The term "Restore" (and related verb forms) shall mean to effect a Restoration. 2.43 "Retail Unit" means and refers to those Units identified by the prefix "RU-" on Exhibit 7 attached hereto. Subject to the provisions hereof, the Retail Units are designed and intended to be used for any purpose permitted by applicable zoning ordinances. References herein to "Units" or "Parcels" shall include the Retail Units unless the context would prohibit or it is otherwise expressly provided. Notwithstanding the designation of the Unit as a "Retail Unit", the name alone shall not restrict its use, as the Retail Units may be used for any lawful purpose. 2.44 "Retail Unit Parking Area" means that portion of Retail Unit RU-A consisting primarily of parking spaces on the 2nd level of the Improvements, as more particularly identified on Exhibit "2" attached hereto. 2.45 "Shared Components" mean those parts of a Unit, which serve and may be used by the Owners of any other Unit and such other Owner's Permittees. The Shared Components are limited to the following as the same now exist and as the same may from time to time exist: (a) ramps, drives and access control systems [depicted on Exhibit 7 as part of the Parking Unit]; (b) the Utility Facilities, including without limitation, water, sewage/waste, electric, cable/CATV/Intemet/Telephone, which are not owned by third party utility providers or governmental agencies [which are, to the extent depicted on Exhibit 7, part of the applicable Unit where located] (c) any and all Sidewalks and landscaping within, or beyond, the legal boundaries of the Condominium Property [depicted on Exhibit 7 as part of the applicable Retail Unit where located], (d) Central Pass-thru [depicted on Exhibit 02" as part of the applicable Retail Unit where located] (e) Life Safety Systems [within the applicable Unit where located], (f) exterior lighting [depicted on Exhibit 7 within the applicable Unit where located], (g) the Stairways [depicted on Exhibit 7 as part of the applicable Unit where located] and (h) Roof/water resistant membranes [which are part of the Parking Unit]. 2.46 "Sidewalks" mean and refer to any and all sidewalks, walkways and/or pathways, together with any and all landscaping installed, or to be installed, thereon, located along or upon (even if beyond the legal boundaries of) the Condominium Property. 2.47 "Special Assessment" means such sums in addition to the Assessments which may be assessed directly against all of the Unit Owners in accordance with the provisions and terms of this Declaration. 2.48 "Special Charges" means such sums in addition to the Charges which may be levied or assessed directly against some, but not all Unit Owners, in accordance with the provisions or terms of this Declaration. -6- 2.49 "Stairways" mean any flight of steps, fire corridors, elevators and/or escalators which are at some point located in more than one Unit and/or within a Unit and a portion of the Common Elements. 2.50 "Taking" means any transfer of title to all or any part of any Unit Owners interest in any Unit or to any Common Elements, or any transfer of possession thereof, pursuant to the exercise of the power of condemnation or eminent domain by any governmental authority or governmental unit, any agency thereof, any public utility company, or any other person granted the power of condemnation under the laws of the United States, the State of Florida, or any political subdivision thereof, whether such transfer is temporary or permanent, and whether the same occurs by force of legal process or by conveyance in lieu thereof, and expressly including any changes in Laws that have the effect of rendering the Condominium Property or any part thereof unusable as part of, or in connection with, the operation of the Clearwater Beach Project in the manner contemplated by this Declaration. 2.51 "Unit" means a part of the Condominium Property which is subject to exclusive ownership, and except where specifically excluded, or the context otherwise requires, shall be deemed to include the Retail Units and the Parking Unit. 2.52 "Unit Owner" or "Owner of a Unit" or "Owner" means a record owner of legal title to a Condominium Parcel. 2.53 "Utility Facilities" mean and include private and public utility lines, systems, or facilities of any type or nature, including wires, pipes, mains, conduits, valves, air handling units, switches, control boxes, breakers, risers, cables, fiber optic lines, shafts and ducts, which supply or are used in the supply of domestic cold and hot water, sanitary sewer service, storm sewer service, chilled water, condenser water, steam, steam condensate, natural gas, compressed air, conditioned and non-conditioned air, ventilation and exhaust air, electricity, fire alarm, emergency communications, systems control and automation, video and other security monitoring, telephone, television, other telecommunications systems, and other mechanical, electrical, and life safety systems, and including all meters for any of the foregoing. 2.54 "Utility Services" shall include, but not be limited to, electric power, gas, water, garbage, sanitary and storm sewage disposal, cable television, telephone service, fire alarm service, emergency communication service, video and security monitoring service, telecommunications, compressed air, air conditioning and other mechanical, electrical and life safety systems. All defined terms (denoted by capitalization or other indication of special definition such as quotation marks) used in this Declaration which are not defined in this Section 2, shall have the meaning set forth elsewhere in this Declaration. Description of Condominium. 3.1 Identification of Units. The Condominium consists of three (3) Units consisting of Two (2) Retail Units ("RU-A" and "RU-B") and one (1) Parking Unit. The designations of the Retail Unit(s) and Parking Unit are for identification purposes only and are not intended to limit, define or otherwise, directly or indirectly, limit their permitted uses. The designation of each of the Units is set forth on Exhibit "2" attached hereto. Exhibit 7 consists of a survey of the Land, a graphic description of the Improvements located thereon, including, but not limited to, the Improvements upon the Land, and a plot plan thereof. Said Exhibit 7, together with this Declaration, is sufficient in detail to -7- identify the Common Elements and each Unit and their relative locations and dimensions. There shall pass with a Unit as appurtenances thereto: (a) an undivided share in the Common Elements and Common Surplus; (b) the exclusive right to use such portion of the Common Elements as may be provided in this Declaration; (c) an exclusive easement for the use of the airspace occupied by the Unit as it exists at any particular time and as the Unit may lawfully be altered or reconstructed from time to time, provided that an easement in airspace which is vacated shall be terminated automatically; (d) membership in the Association with the full voting rights appurtenant thereto; and (e) other appurtenances as may be provided by this Declaration. 3.2 Usage of Shared Components. In any case in which a Shared Component benefits more than one Unit Owner, the right of each such benefited Unit Owner to the use and benefit thereof shall be on a non-exclusive, equal priority basis, such that no benefited Unit Owners use thereof shall unreasonably hinder or encroach upon the lawful rights of another benefited Unit Owner to the use and benefit therefrom or shall violate any rules and regulations of the Association applicable to such Shared Components. Further to the foregoing, no use of the Shared Components may unreasonably interfere with or otherwise disrupt the operations, businesses and/or services being conducted and/or offered from the Retail and/or Parking Units and/or with the use, operation, maintenance, repair and replacement of the Retail and/or Parking Units and its or their facilities. 3.3 Unit Boundaries. (a) Boundaries of the Parking Unit. The upper, lower and perimetrical boundaries of the Parking Unit shall be as graphically depicted on Exhibit 02" attached hereto, as supplemented by the following: (i) Upper Boundaries. The upper boundary of the Parking Unit shall be the horizontal plane parallel to the higher of. (i) elevation 87.17' N.G.V.D or (ii) the horizontal plane parallel to the highest point of any structural improvements located on the Condominium Property. (ii) Lower Boundaries. The lower boundary of the Parking Unit shall be the horizontal plane of the unfinished upper surface of the floor of the Unit to the extent that that floor falls within the perimetrical boundaries at the lowest level. In a multi-story Unit where upper levels have a greater floor area than exists on the lower level, the lower boundary shall, on each applicable upper level, include that portion of the floor of the upper level of the applicable Unit for which there is no corresponding floor on the lower level of the applicable Unit directly below the floor of such top floor). (iii) Perimetrical Boundaries. The perimetrical boundaries of the Parking Unit shall, be as applicable: (a) the vertical planes formed by the interior undecorated unfinished surfaces of all structural walls bounding the Unit extended to their planar intersections with each other and with the upper and lower boundaries; or (b) where there is no wall and the Unit consists in whole or in part of unenclosed space, the vertical plane lying on the survey line defining the Unit as shown on Exhibit "2' hereof, as amended or supplemented, perpendicular to the upper and lower boundaries. -8- (iv) Proviso. Notwithstanding the foregoing, any and all structural components of the Building, regardless of where located, shall be deemed to be Common Elements, provided, however, that the water resistant roof membranes located on the Building, and any Life Safety Systems located within the Parking Unit shall be deemed part of the Parking Unit. (b) Boundaries of the Retail Units. The upper, lower and perimetrical boundaries of the Retail Units shall be as graphically depicted on Exhibit 7 attached hereto, as supplemented by the following: (i) Up)ger Boundaries. The upper boundary of each Retail Unit shall be the horizontal plane of the unfinished lower surface of the ceiling of the applicable Retail Unit to the extent that that ceiling falls within the perimetrical boundaries at the uppermost level. In a multi-story Unit where lower levels have a greater ceiling area than exists on the upper level, the upper boundary shall, on each applicable lower level, include that portion of the ceiling of the lower level of the applicable Unit for which there is no corresponding ceiling on the upper level of the applicable Unit directly above the ceiling of such lower level). (ii) Lower Boundaries. The lower boundary of each Retail Unit shall be the horizontal plane of the unfinished upper surface of the floor of the Unit to the extent that that floor falls within the perimetrical boundaries at the lowest level. In a multi-story Unit where upper levels have a greater floor area than exists on the lower level, the lower boundary shall, on each applicable upper level, include that portion of the floor of the upper level of the applicable Unit for which there is no corresponding floor on the lower level of the applicable Unit directly below the floor of such top floor). (iii) Perimetrical Boundaries. The perimetrical boundaries of the Retail Unit shall, be as applicable: (a) the vertical planes formed by the interior undecorated unfinished surfaces of all structural walls bounding the Unit extended to their planar intersections with each other and with the upper and lower boundaries; or (b) where there is no wall and the Unit consists in whole or in part of unenclosed space, the vertical plane lying on the survey line defining the Unit as shown on Exhibit 7 hereof, as amended or supplemented, perpendicular to the upper and lower boundaries. (iv) Apertures: Proviso. Where there are apertures in any boundary, including, but not limited to, windows, doors, bay windows and skylights, all of same shall be deemed part of the applicable Retail Unit. Any Life Safety Systems located within a Retail Unit shall be deemed part of the applicable Retail Unit. Notwithstanding the foregoing, any and all structural components of the Building, regardless of where located, shall be deemed to be Common Elements. 3.4 Advertising Wall Space. By the recordation of this Declaration in the Public Records of the County, the Declarant shall be deemed to have assigned to the owners from time to time of the Retail Units, as a Limited Common Element appurtenant thereto, the right use of the surface of the exterior walls of the ground level of the Building (including the decorative building eyebrow located -9- immediately above the ground level of the Building) as well as the interior or exterior surfaces of the windows of any such owner's Retail Unit (the "Advertising Wall Space"), for commercial advertising and/or promotional purposes (including, without limitation, advertisements and promotions for products and/or services which are not offered from the Condominium Property). The applicable Owner from time to time of the Retail Units, or its or their assignee, shall have the right to install signage on, decorate and/or otherwise alter the appearance of the Advertising Wall Space in accordance with the provisions of applicable law. Notwithstanding the foregoing, or anything contained to the contrary herein, no action permitted by this Section Errorl Reference source not found.Errorl Reference source not found. shall affect or impair the structural integrity of the Building. The Association shall be responsible for the maintenance of the structural elements behind the Advertising Wall Space, with the costs of same being a part of the Common Expenses. The applicable Owner from time to time of the applicable Retail Unit, or its or their assignee, shall be responsible for the maintenance of any other portions of the Advertising Wall Space, including, without limitation, the general cleaning and upkeep of the appearance of the Advertising Wall Space. 3.5 Easements. The following easements are hereby created (in addition to any easements created under the Act and any easements affecting the Condominium Property and recorded in the Public Records of the County): (a) Support. Each Unit, and the Improvements, shall have an easement of horizontal, vertical, and lateral support and of necessity, including a non-exclusive easement in and to all structural members, columns, beams, foundations, load bearing walls, and other structural components located in or constituting part of the Common Elements or another Owners Unit for the support of such Owners Unit and each Unit shall be subject to an easement of support and necessity in favor of all other Units, the Common Elements and any other structure or improvement which abuts any Unit or any Improvements. (b) Encroachments. If (i) any portion of the Common Elements encroaches upon any Unit; (ii) any Unit encroaches upon any other Unit or upon any portion of the Common Elements; or (iii) any encroachment shall hereafter occur as a result of (A) settling or shifting of the Improvements; (B) any alteration or repair to the Common Elements and/or Units made in accordance with the terms hereof, or (C) any repair or restoration of the Improvements (or any portion thereof) or any Unit after damage by fire or other Casualty or any Taking by condemnation or eminent domain proceedings of all or any portion of any Unit or the Common Elements, then, in any such event, a valid easement shall exist for such encroachment and for the maintenance of same so long as the Improvements shall stand. (c) Access. Each Unit Owner and its Permittees shall be entitled to, and are hereby granted, the right and nonexclusive easement for ingress and egress to and from the Unit owned by such Unit Owner and any public streets, sidewalks, and walkways within or adjacent to the Condominium Property, over and across the driveways, halls, corridors, Stairways, stairs, ways, the Central Pass-thru, ramps, bridges, escalators, elevators, and exterior access ways, and other areas which are part of the Common Elements or which are portions of Units or Shared Components open to the general public, subject, however, to: (a) the further provisions of this subsection; (b) the right of each Unit Owner to modify or eliminate ingress and egress through portions of its Unit, so long as reasonably equivalent ingress and egress is maintained from each Unit to a public street and right of way in -10- compliance with all applicable building codes and regulations and applicable permits and/or to any Shared Component; and (c) the right of each Unit Owner to implement such safety measures as it deems necessary and appropriate. In particular, and without limiting the foregoing: (i) The Retail Unit Owners and its or their Permittees shall be entitled to a perpetual easement over and upon the Parking Unit, including all Shared Component driveway areas, ramps and other vehicular accessways into, out of and through the Parking Unit for purposes of pedestrian and vehicular ingress and egress to and from the entrance to the parking garage contained therein, the Retail Unit Parking Area, the Shared Components and/or the Common Elements, as the case may be (provided, however that the easement shall not be deemed to authorize use of any parking spaces and/or garage offices contained within the Parking Unit). Without limiting the generality of the foregoing, it is understood and agreed that access will be required through the floors of the Building containing the Parking Unit in order to access the Retail Unit Parking Area. Access thereover is expressly permitted hereby, although the easement reserved herein shall not afford any party the right to park within any parking space contained within the Parking Unit. Parking within the Parking Unit will be within the sole discretion and control of the Parking Unit Owner, and absent an express agreement for such parking rights, no such parking rights shall exist. Additionally, a perpetual easement is hereby reserved in favor of the Association, and its designees, over and upon the Parking Unit and the Retail Unit Parking Area for purposes of performing such maintenance, repairs, and other services as are permitted or required to be performed by the Association, including, but not limited to, maintenance, repair, replacement and alteration of Common Elements, safety and maintenance activities, and enforcement of rules and regulations. (ii) The Retail Unit Owners and its or their Permittees shall be entitled to, and are hereby granted, the right and easement for pedestrian ingress and egress over, across and upon the Parking Unit and the Shared Components as reasonably necessary or convenient to provide access to and from the Parking Unit and/or the Retail Unit Parking Area and the Pass-Thru and/or sidewalks within or adjoining the Condominium Property. Such rights and easements shall include, without limitation, access to and use of the Stairways, the walkways, passageways, corridors, and elevators leading through or from the Parking Unit and/or the Retail Unit Parking Area, subject to such safety provisions, as may be adopted by the Parking Unit Owner with respect to the Parking Unit or the applicable Retail Unit Owner, with respect to the Retail Unit Parking Area, pursuant to the terms of this Declaration. (iii) Each Unit Owner and its Permittees shall be entitled to, and are hereby granted, the right and easement for: pedestrian traffic over, through and across such portions of the Common Elements and/or Shared Components as from time to time may be paved and/or designed for such purposes. (d) Access for Re air Work. Subject to compliance with Section 9 below, each Unit Owner and the Association shall be entitled to, and are hereby granted, upon reasonable advance notice to the other Unit Owners, an easement and right of access to each Unit, the Shared Components and the Common Elements from time to time as may be reasonably necessary to perform Repair Work to any Unit, Shared Components or Common Element for which such Unit Owner or the Association is responsible or entitled to make repairs pursuant to the provisions of Section 9.1 (excluding all repairs relating to a Casualty or a Taking which are addressed in Section 3.4(i) below), including the temporary erection of scaffolding or lateral supports and ingress and egress for, and the temporary presence of, demolition and construction equipment, machinery, and personnel; provided, that such easements shall not permit any Unit Owner to unreasonably interfere with the use, enjoyment or occupancy of any other Unit, Shared Components or Common Elements, except as may otherwise be agreed in writing by the Owner(s) of the Units or Shared Components affected thereby and by the Association with respect to any Common Elements affected thereby; and provided further, that the Unit Owner performing or causing to be performed any such Repair Work shall (i) be responsible for, and shall indemnify the Owner(s) of the affected Unit(s) and the Association against, all damage or loss to the other Units, Shared Components and/or Common Elements or personal injury or loss of life that may result from the performance of such Repair Work (subject to the provisions of this Declaration), and (ii) prior to commencing any such Repair Work that may affect any other Unit, Shared Components and/or the Common Elements, provide to the Owner(s) of the affected Unit(s) evidence that (A) any special coverages or endorsements to the policy of property damage insurance maintained by the Association pursuant to Section 10 that are reasonably necessary to provide coverage to the Condominium Property in the course of such Repair Work have been obtained and (B) the Unit Owner(s) and its contractors are insured against liability arising as a result of such Repair Work in reasonable and customary amounts in light of the nature and extent of the Repair Work to be performed. In the event of any dispute regarding the amounts or coverages of insurance that may be required under the preceding sentence, the same shall be resolved in accordance with Section 13.2 hereof. If entry is necessitated by a Unit Owner's failure to comply with its obligations with respect to the operation, maintenance, repair, reconstruction, or replacement of any other Unit, Shared Component, Common Elements, Utility Facilities, or other areas, Improvements, or facilities that are the subject of any of the easements granted under this Declaration, then the other Unit Owner(s) or the Association must first comply with the provisions of Section 9.6, prior to undertaking such operation, maintenance, repair, reconstruction or replacement. (e) Utilities. Each Unit Owner shall have, and is hereby granted, a non-exclusive right and easement for the existence, use, enjoyment, repair, replacement, and (to the extent expressly permitted by this Declaration) the relocation and the installation of all Utility Facilities which serve either such Owner's Unit or any Shared Component and which are located (in whole or in part) within, or pass through or under, another Unit or any Common Elements. Each Unit and the Common Elements are hereby subjected to the rights and easements for all Utility Facilities granted by the preceding sentence. Such easements shall exist for all Utility Facilities as presently located within the Condominium Property and as the same may hereafter be located or relocated in accordance with the provisions below and shall be deemed to include rights of access to such Utility Facilities and the use -12- of such additional spaces and areas around such Utility Facilities as shall be reasonably necessary to serve the purposes of such easements. The foregoing rights and easements are expressly made applicable to any utilities or other services which are or may become necessary in the future for the proper operation of such Owner's Unit, so long as the use of such easements does not interfere with the use and occupancy of another Owner's Unit or the Common Elements (it being stipulated that the easements for Utility Facilities existing as of the date hereof do not interfere with the use and occupancy of any Units or Common Elements). The Association, on its behalf and on behalf of the Unit Owners, has the right to grant such additional easements for the installation and use of Utility Facilities, and for the relocation of any existing Utility Facilities in any portion of the Property, the Improvements and the Common Elements, as the Association shall deem necessary for the proper operation and maintenance of the Condominium Property, or any portion thereof, or for the general health or welfare of the Unit Owners, or for the purpose of carrying out any provisions of this Declaration; provided, however, that such easements or the relocation of existing easements: (i) will only be performed after thirty (30) days' prior written notice to the Unit Owners, (i) will not unreasonably interfere or diminish the service being supplied to the Unit(s) (excepting reasonable, temporary interference when relocation is necessary), (i) will only be performed during nonbusiness hours, unless performance during business hours cannot be reasonably avoided (it being intended that "business hours" will be different as applied to each Unit, according to when normal use is highest for such Unit), (i) will, to the extent practicable, be located in the public roads and in the Common Elements, and (i) will otherwise comply with the requirements of this Declaration. Any Unit Owner that requires the creation or relocation of such easement(s) shall bear the expense of such creation and/or relocation. Any Unit Owner objecting to the creation or relocation of such easements may pursue Dispute Resolution, in accordance with Section 13.2 hereof. (f) Emergency Easements. Each Unit Owner and its Permittees shall be entitled to, and are hereby granted, the right and easement over, through and across the Condominium Property for emergency ingress and egress to and from any other portion of the Condominium Property, in the event of fire or other emergency. A non-exclusive easement for ingress and egress is hereby granted to all police, sheriff, fire protection, ambulance, and other similar emergency agencies or persons now or hereafter servicing the Condominium Property, to enter upon all streets, driveways, sidewalks, walkways and other public access ways located within the Condominium Property in performance of their duties. Each Unit Owner shall be entitled to, and is hereby granted, a non-exclusive easement for ingress and egress to any Unit or Common Element in the event of any emergency for the purpose of protecting such Owner's Unit, any Utility Facilities serving such Unit, any Common Elements benefiting such Owner, and any persons in, on, or about such Unit or Common Elements and for making emergency repairs that are necessary to prevent damage to the Common Elements or to a Unit, if reasonably practicable, the affected Unit Owner shall be warned of the impending entry, as early as possible. (g) Easements for Equipment. Etc. Each Owner shall have, and is hereby granted, a non-exclusive right and easement for the existence, use, enjoyment, and (to the extent expressly permitted by this Declaration) the installation, repair, replacement and relocation of equipment, appliances, machinery, mechanical, or other systems or areas (if -13- any) that do not constitute Utility Facilities and that serve such Owners Unit, to the extent the same are located (in whole or in part) outside of such Unit and/or are connected to other Units or the Common Elements and provided that the same are situated in an area used exclusively for mechanicals or in a location approved, in writing, by the burdened Unit Owner. Each Unit and the Common Elements are hereby subjected to the rights and easements granted by the preceding sentence. Such easements shall be deemed to include rights of access to the foregoing and the use of such additional spaces and areas around such equipment, appliances, machinery, mechanical and other systems or areas as shall be reasonably necessary to serve the purposes of such easements. (h) Easements over Common Elements. Each Unit Owner shall have and is hereby granted a non-exclusive easement in, over and through the Common Elements to use such Common Elements for their intended purposes, subject to the right of the Association to promulgate rules and regulations governing the use and enjoyment thereof, as and to the extent permitted hereby. (i) Easements over Shared Components. Each Unit Owner shall have and is hereby granted a non-exclusive easement in, over and through the Shared Components to use such Shared Components for their intended purposes, subject to the right of the Responsible Unit Owner to promulgate rules and regulations governing the use and enjoyment thereof, as and to the extent permitted hereby. Q) Easements for Restoration or Reconstruction in the Event of a Casualty or a Taking, Subject to the provisions of this Declaration, each Unit Owner shall have and is hereby granted perpetual, non-exclusive easements, in, upon, over, under, across and through the Common Elements and (to the extent reasonably necessary) any Unit(s), to remove, demolish, Restore, reconstruct, and/or replace any and all buildings, structures, fixtures, equipment, and other improvements within the building or its Unit or which constitute a Common Element or a Shared Component that may be damaged or rendered non-functional due to a Casualty or to a Taking, including the temporary erection of scaffolding or lateral supports and ingress and egress for, and the temporary presence of, demolition and construction equipment, machinery, and personnel; provided, that such easements shall not permit any Unit Owner to unreasonably interfere with the use, enjoyment or occupancy of any other Unit or Common Elements, except as may otherwise be agreed in writing by the Owner(s) of the Units affected thereby and by the Association with respect to any Common Elements affected thereby; or may be necessary to complete any Restoration required by this Declaration, so long as the Responsible Unit Owner uses reasonable efforts to minimize any interference with other Units and the Common Elements; and provided further, that the Unit Owner performing or causing to be performed any such work shall (i) be responsible for, and shall indemnify the Owner(s) of the affected Unit(s) and the Association against, all damage or loss to the other Units and Common Elements and personal injury of loss of life that may result from the performance of such work (subject to the provisions of this Declaration), and (i) prior to performing any such work that may affect any other Unit or the Common Elements, provide to the Owner(s) of the affected Unit(s) evidence that (1) any special coverages or endorsements to the policy of property damage insurance maintained by the Responsible Unit Owner pursuant to Section 10.1 that are reasonably necessary to provide coverage to the Condominium Property in the course of such work have been obtained and (2) the -14- Responsible Unit Owner and its contractors are insured against liability arising as a result of such work in reasonable and customary amounts in light of the nature and extent of the work to be performed. In the event of any dispute regarding the amounts or coverages of insurance that may be required under the preceding sentence, the same shall be resolved in accordance with Section 13.2 hereof. (k) Easement for Mortgagees. Any holder of a mortgage, its officers, agents, and employees, shall be entitled to, and are hereby granted, a blanket, perpetual and non-exclusive easement to enter the Condominium Property or any part thereof to inspect the condition and repair of the Common Elements or any Units so encumbered by a mortgage held by it. This right shall be exercised only during reasonable daylight hours, and then, whenever practicable, only after advance notice to and with permission of the Board of Directors (as to Common Elements) and the Unit Owners whose Units are to be inspected. Except in the event of emergencies, the rights accompanying the easements provided for in this paragraph shall be exercised only during reasonable hours and then, whenever practicable, only after advance notice to and with permission of the Unit Owner(s) directly affected thereby. (1) Easement for Services. Each governmental agency and utility service provider shall be entitled to, and is hereby granted, a blanket, perpetual and non-exclusive easement in, upon, over, across and through the Common Elements and public spaces and easement areas within the Units, for the purpose of maintaining, repairing, servicing and replacing all Utility Facilities and other items in the nature of Utility Facilities that are owned by such agency or utility provider, which such governmental agency or utility service provider is responsible for maintaining, repairing, servicing, or replacing. Except in the event of emergencies, the rights accompanying the easements provided for in this paragraph shall be exercised only during reasonable hours and then, whenever practicable, only after advance notice to and with permission of the Unit Owner(s) directly affected thereby. (m) Additional Easements. If at any time after the date hereof additional emergency exits are required by Law or by insurance underwriting requirements generally applicable to commercial and/or retail projects, or (A) any additional easements for access to or use, repair, and replacement of Utility Facilities now or hereafter existing are reasonably necessary for the use and operation of any one or more Units, or (B) any additional easements are required to complete any Restoration required under this Declaration, or (C) any other additional easements are necessary or desirable to effectuate the purposes of this Declaration, each Unit Owner shall, within a reasonable time after written request therefor by any other Unit Owner, grant such easement; provided (i) no Unit Owner granting any such easement is required to construct improvements, expend any monies, or incur other material liabilities in order to provide such easement (other than costs paid solely by the Unit Owners for whose benefit such easement is to be granted), (ii) such easement will not materially increase expenses, or create any material additional expenses, for any portion of the Condominium Property (unless pennanently allocated to and paid by the Owner for whose benefit such easement is to be granted), and (iii) the use of such easement will not unreasonably interfere with the operation, use or enjoyment of such Owner's Unit or violate or interfere with the rights or interests of such Unit Owner's Permittees. The Unit Owners requesting any such easement shall pay all costs and expenses in connection with the approval and granting of any such easement, including -15- all engineering fees, recording charges, and legal fees and expenses reasonably incurred by the Unit Owners or any of them in connection therewith. If new easements are created, this Declaration shall be amended, if necessary, by the Unit Owners or by the Association, as the case may be, and such easements shall have the same force, effect and priority as if such easements were originally contained herein. (n) Easements Deemed Appurtenant. The easements, uses, and rights created herein for a Unit Owner shall be appurtenant to its Unit, and all conveyances of and other instruments affecting title to a Unit shall be deemed to grant and reserve the easements, uses and rights provided for herein, even though no specific reference to such easements, uses, and rights appears in any such instrument. Each Unit Owner whose Unit is subject to an easement created by this Declaration may use the easement area for any purposes permitted in this Declaration not inconsistent with such easement and shall also have the right to temporarily interrupt the use of such easements as may be necessary in order to perform Repair Work to Common Elements or Units, provided that the temporary interruption does not materially interfere with the use and occupancy of another Owner's Unit or the Common Elements. Each Unit Owner shall have the right to relocate any easement burdening its property at its expense, so long as it provides an adequate replacement easement which does not materially interfere with the use and occupancy of another Owner's Unit or the Common Elements. (o) Savings Clause. Should the intended creation of any easement described in this Declaration fail by reason of the fact that, at the time of creation, there may be no grantee in being having the capacity to take and hold such easement, then such grant of easement shall be considered as having been granted directly to the Association for the purpose of allowing the original parry or parties to whom the easements were originally granted the benefit of such easement and the Unit Owners and their mortgagees designate the Association as their lawful attomey-in-fact to execute any instrument on their behalf as may hereafter be required or deemed necessary for the purpose of creating such easement. (p) Indemni . Declarant, during the time it owns any of the Units, hereby covenants and agrees, and each Unit Owner thereafter, by acceptance of a deed for its Unit, whether or not it shall be so expressed in any such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree, to (i) repair any damage suffered by a Unit Owner(s) as a result of its or its Permittees' use of any easement set forth in Section 3.4 or elsewhere in this Declaration, and (ii) reimburse, indemnify and hold the Unit Owner(s) whose Unit was damaged harmless for any loss, action, claim, expense, injury, liability, judgment, fine or damages arising from or relating to the exercise of such easement(s) by the indemnifying Unit Owner, their agents, employees and/or contractors, except any loss, action, claim, expense, injury, liability, judgment, fine or damage arising from the action or inaction of the Unit Owner(s) so indemnified. -16- Restraint Upon Separation and Partition of Common Elements. The undivided share in the Common Elements and Common Surplus which is appurtenant to a Unit shall not be separated therefrom and shall pass with the title to the Unit, whether or not separately described. The appurtenant share in the Common Elements and Common Surplus, except as elsewhere herein provided to the contrary, cannot be conveyed or encumbered except together with the Unit. The respective shares in the Common Elements appurtenant to Units shall remain undivided, and no action for partition of the Common Elements, the Condominium Property, or any part thereof, shall lie, except as provided herein with respect to termination of the Condominium. Ownership of Common Elements and Common Surplus and Share of Common Expenses; Voting Rights 5.1 Percentage Ownership and Shares. The undivided percentage interest in the Common Elements and Common Surplus, and the percentage share of the Common Expenses, appurtenant to each Unit, is as set forth below: Unit % Share Parking Unit 50% Retail Unit A 35% Retail Unit B 15% 5.2 Allocated Interest in Shared Components. The Allocated Interest of each Unit in each of the Shared Components is as set forth on Exhibit "3" attached hereto. In the event of a material change in the usage of a Shared Component or in the size of a Unit, improvements within a Unit, or the reconstitution of two or more Units, the Unit Owners affected thereby shall make a good faith effort to equitably reallocate the Unit Owners' Allocated Interests in said Shared Components. If the affected Unit Owners are unable to agree on an equitable reallocation of any Allocated Interest within 30 days after the occurrence of the material change, the provisions of Section 13.2 hereof shall govern. 5.3 Votinc. Each Unit Owner shall be a member of the Association and shall be entitled to cast one (1) vote on all matters upon which the membership shall be entitled to vote. All votes shall be cast by the Owner in accordance with the provisions of the By-Laws and Articles of the Association. All actions of the Association, unless otherwise provided in the By-Laws, shall require unanimity of Unit Owners. In the event, however, that the requisite unanimous vote is not obtained with respect to a matter that one Unit Owner, in good faith, believes will result in an act or omission that will have a material adverse effect on the Condominium Property as a whole or on the Unit, such Unit Owner shall have the right to implement dispute resolution procedures in accordance with Section 13.2 hereof. The question to be submitted to the Board of Directors and, if necessary, to an arbitrator, for dispute resolution in accordance with Section 13.2 hereof shall be whether or not the act or omission resulting from the failure to obtain a unanimous vote will have a material adverse effect on the Condominium Property as a whole or on a Unit. If the Board or the arbitrator (as applicable) determines that there is no significant likelihood of such a material adverse effect, the Unit Owner who initiated the dispute resolution shall pay all costs associated therewith, including without limitation, the costs of all other parties to the dispute and no further dispute resolution shall be conducted with respect to such dispute and the Unit Owner or Unit Owners who initiated the -17- dispute resolution shall have no further recourse or right to seek to avoid the act or omission resulting from the failure of the Unit Owners to unanimously agree. If the Board or the arbitrator (as applicable) determines, however, that there is a risk of a material adverse effect on the Condominium Property or on the Unit, then it shall proceed to determine the most effective means of avoiding the act or omission, in accordance with Section 13.2, as if a dispute existed between the Owners as to the most effective means. 6. Assessments; Special Assessments; Charges; Special Charges 6.1 Assessments and Charges (a) Determination of Common Expenses and Fixing of Assessments. The Board of Directors shall prepare a condominium budget, in accordance with the Act, on a calendar year basis. The budget shall be distributed to the Unit Owners on or before October 31 preceding the year for which the budget is effective. Based upon the budget and consistent with each Unit Owner's Percentage Share, the Board shall determine each Unit's Assessment and Charges (to the extent possible). The Board of Directors shall advise each Unit Owner promptly in writing of the amount of its Assessment and Charges, which amounts shall be payable monthly to the Association. (b) Determination of Charges for expenses of Shared Components. The Charges and expenses with respect to each Shared Component shall not be included in the Budget or the Assessments but shall be allocated between the Unit Owners in proportion to each Unit Owner's Allocated Interest in the applicable Shared Component and shall be funded in accordance with Section 9.1(c) below. The Responsible Unit Owner for a particular Shared Component shall prepare an Allocated Expense budget for said Shared Component on a calendar year basis to be delivered to the Association for distribution to the Unit Owners with the budget described in Section 6.1(a). Payment of Allocated Expenses shall not be monthly but, instead, shall only be required of the benefited Unit Owners in sufficient time to enable the Responsible Unit Owners to pay Allocated Expenses as they come due, but in no event less than ten (10) days prior to the payment date provided in applicable invoices. Payment of Allocated Expenses shall be tendered to the Responsible Unit Owner or to a third party management or maintenance company selected by the Responsible Unit Owner. (c) Determination of Charges. A Unit Owner's share of Charges will vary with the nature of the Charges. Charges related to Common Expenses will be allocated according to each Unit's Percentage Shares. Charges related to Shared Components will be allocated according to each Unit's Allocated Interest in any Shared Components. All other Charges shall be allocated as otherwise provided in this Declaration. To the greatest extent possible, Charges shall be included in the budget described in Section 6.1(a) above. (d) Payment of Assessments, Charges and Allocated Expenses. (i) Declarant, for each Unit owned by it, hereby covenants and agrees and each Unit Owner, by acceptance of a deed for its Unit, whether or not it shall be so expressed in such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree to pay all Assessments, Allocated Expenses and Charges (which Charges shall include but not be limited to -18- Charges arising out of Allocated Expenses) for the operation of the Association and Shared Components and for the maintenance, management, operation and insurance of the Condominium Property imposed on it under this Declaration, including such reasonable reserves as the Association may deem necessary as to Common Elements (or the Responsible Unit Owner may deem necessary as to any Shared Components), capital improvements assessments or charges, maintenance assessments or charges, and all other Charges and Assessments herein referred to or lawfully imposed by the Association or by a Responsible Unit Owner, all such Assessments, Allocated Expenses and Charges to be fixed, established and collected from time to time as herein provided. All such Charges, Allocated Expenses and Assessments, together with interest thereon and costs of collection thereof, shall be a charge on the Land and shall be a continuing lien upon the Unit against which each such Assessment, Allocated Expense or Charge is made. Each such Assessment and Charge, together with such interest thereon and costs of collection thereof, shall also be the personal obligation of the person or entity who is the Owner of such Unit at the time when the Assessment or Charges fall due and all subsequent Owners of said Unit until paid. (ii) The foregoing provisions are independent covenants running with the Land between and among the Association, each Responsible Unit Owner and each Unit Owner, and the power to impose and enforce all Charges and Assessments, as provided herein, is in addition to and not pursuant to or in reliance on the Act. (e) Revisions to Budget; Enforcement. Any budget adopted by the Association may be revised from time to time by the Association to cover actual expenses. The Association shall assess each Unit its share of the Common Expenses and Allocated Expenses (if the same are not paid in accordance with Section 6.1(b)), and shall enforce collection of same so that at all times the solvency of the Association, pursuant to generally accepted accounting principles, consistently applied, is maintained and assured. 6.2 Special Assessments_ and Special Charges. Declarant, for each Unit owned by it, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree: (a) to pay the Association any Special Assessments imposed by the Board and any Special Charges imposed by a Responsible Unit Owner against any or all of the Units, pursuant to this Declaration, including, but not limited to a Special Assessment or Special Charge for: reconstruction (Section 6.6), failure to pay a charge or cost attributable to a Shared Component (Section 6.1(b)), correction of a violation (Section 6.7), repayment for utility services (Section 6.8), failure to pay its share of insurance expenses to secure liability insurance or to secure liability insurance with the required coverage (Section 10), failure to correct a deviation from the plans and specifications (Section 9), failure to maintain a Unit or a Shared Component (Section 9.2), as well as the cost of emergency repairs, and such other matters as are provided under this Declaration, in accordance with the provisions of this Declaration; (b) that such Special Assessment and Special Charges shall be a charge on the Land and a continuing lien on the affected Unit, (c) that such Special Assessment and Special Charges together with such interest thereon and costs of collection thereof shall also be an obligation of the Owner of the Unit at the time when the Assessment or Charge falls due and an obligation of all subsequent Owners of said -19- Unit until paid, and (d) that such Special Assessment and/or Special Charge may be enforced in the manner set forth in this Declaration. The foregoing provisions are independent covenants running with the Land between and among the Association, each Responsible Unit Owner and each Unit Owner, and the power to impose and enforce Special Assessments and Special Charges, as provided herein, is in addition to and not pursuant to or in reliance on the Act. 6.3 Lien for Assessment and Special Assessment. The Association and a Responsible Unit Owner shall have a lien against a Unit upon recording a claim of lien in the Public Records of the County, for any unpaid Assessment(s), Charges, Special Assessment(s) and/or Special Charges against the Owner thereof, and for interest accruing thereon, which lien shall also secure reasonable attorneys fees incurred by the Association or the collecting Unit Owner incident to the collection of such Assessment or Charge, or enforcement of such lien, whether or not legal proceedings are initiated, and if initiated, on the trial court and appellate levels. Such claims of lien, if made by the Association, may be signed and verified by the President and a Vice President or Secretary of the Association. Upon full payment, the party making payment shall be entitled to a recordable satisfaction of lien, to be prepared and recorded at its expense. All such liens shall be subordinate to the lien of mortgages recorded prior to the date of recording the claim of lien, and all such liens may be foreclosed by suit brought in the name of the Association or the Responsible Unit Owner (as applicable) in like manner as a foreclosure of a mortgage on real property. Subject to the provisions of Section 19.11, the Association and a Responsible Unit Owner may, at its option, sue to recover a money judgment for unpaid Assessments or Charges without thereby waiving the lien securing the same. 6.4 Interest; Application of Payments. Assessments, Charges, Special Assessments and Special Charges, and installments on such Assessments, Charges, Special Assessments and Special Charges paid on or before ten (10) days after the date when due shall not bear interest, but all sums not paid on or before ten (10) days after the date when due shall bear interest at the Prime Rate, plus three (3%) percent, but in no event higher than the highest rate permitted by law. All payments on account shall be first applied to interest, and then to the Assessment, Charge, Special Assessment or Special Charge payment first due. 6.5 Commencement. The Assessments, Charges, Special Assessments and Special Charges provided for in this Section 6 shall be due and payable on the date or dates fixed by the Board of Directors of the Association (as to Assessments and Special Assessments), as provided in the resolution authorizing the applicable Assessment or Charge, or by the Responsible Unit Owner (as to Charges and Special Charges). 6.6 Reconstruction Assessment. Unless the decision has been made pursuant to Section 15 to terminate the Condominium, upon the occurrence of a Casualty or a Taking, the Board shall impose a Special Charge on the Owner of a damaged Unit if at any time it is determined by the Board that: the deductible contributed by said Unit Owner in accordance with Section 10 and the proceeds of insurance are not sufficient to pay (a) the estimated or actual costs of Restoration of the Unit; or (b) if said Unit Owner has elected not to Restore its Unit, (i) the estimated or actual costs of the Restoration of any Common Elements or Shared Components which said Unit Owner is required to Restore; and/or (ii) any costs associated with the requirements of Sections 11.2 and 11.3. Such Special Charge shall (A) be a charge on the Land and a continuing lien on the affected Unit, (B) be an obligation of the Owner of the Unit at the time when the Charge falls due and an obligation of all subsequent Owners of said Unit until paid, and (C) may be enforced in any manner -20- set forth in this Declaration. The foregoing provisions are independent covenants running with the Land between and among the Association and each Unit Owner, and the power to impose and enforce Special Charges, as provided herein, is in addition to and not pursuant to or in reliance on the Act. 6.7 Violation of Declaration. The Board may impose a Special Charge on a Unit Owner to pay the cost to correct a violation by said Unit Owner of the Declaration, the Association rules and regulations, and/or any Laws, after said Unit Owner has received written notice from the Association of such violation and reasonable opportunity to cure. Such Special Charge shall (i) be a charge on the Land and a continuing lien on the affected Unit, (ii) be an obligation of the Owner of the Unit at the time when the Charge falls due and an obligation of all subsequent owners of said Unit until paid, and (iii) may be enforced in any manner provided in this Declaration. The foregoing provisions are independent covenants running with the Land between and among the Association and each Unit owner, and the power to impose and enforce Special Charges, as provided herein, is in addition to and not pursuant to or in reliance on the Act. 6.8 Utilities. Each Unit Owner shall pay for said Unit Owners own use of any and all utilities. To the extent that any portion of a Unit is not submetered, it shall be the obligation of the Owner of that Unit to cause said portion to be submetered, and prior to the submetering, the Responsible Unit Owner shall, in its reasonable discretion, equitably attribute Utility costs to the portion of the Unit which is not submetered and the Responsible Unit Owner shall be obligated to pay any amount so attributed. Any Utility Facilities which serve the Shared Components shall be treated as part of the Shared Components and allocated among the Units according to the Allocated Interests. Any Utility Facilities which serve the Common Elements shall be treated as part of the Common Expenses and allocated among the Units according to the Percentage Shares. 6.9 Certificate of Unpaid Assessments. Within fifteen (15) days after written request by a Unit Owner or mortgagee of a Unit, the Association or Responsible Unit Owner, as applicable, shall provide a certificate stating all Assessments, Charges and other moneys owed to the Association and/or Responsible Unit Owner by the Unit Owner with respect to his or her Unit. 6.10 A lication of Payments. Any payments received by the Association from a delinquent Unit Owner shall be applied first to any interest accrued on the delinquent installment(s) as aforesaid, then to any costs and reasonable attorneys' fees incurred in collection and then to the delinquent and any accelerated Assessments. The foregoing shall be applicable notwithstanding any restrictive endorsement, designation or instruction placed on or accompanying a payment. Operation of the Condominium by the Association; Powers and Duties. 7.1 Powers and Duties. The Association shall be the entity responsible for the operation of the Common Elements and the Association Property. The powers and duties of the Association shall include those set forth in the By-Laws and Articles of Incorporation of the Association (which By- Laws and Articles are attached hereto as Exhibits 14" and "5", respectively), as amended from time to time. 7.2 Restraint U n Assignment of Shares in Assets. The share of a Unit Owner in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to his or her Unit. -21- 7.3 A roval or Disapproval of Matters. Whenever the decision of a Unit Owner is required upon any matter, whether or not the subject of an Association meeting, that decision shall be expressed by the same person who would cast the vote for that Unit if at an Association meeting, unless the joinder of all record Owners of the Unit is specifically required by this Declaration or by law 7.4 Limitation Upon Liabili of Association. Notwithstanding the duty of the Association to maintain and repair parts of the Condominium Property, the Association shall not be liable to Unit Owners for injury or damage, other than for the cost of maintenance and repair, caused by any latent condition of any portion of the Condominium Property to be maintained by the Association. Further, the Association shall not be liable for any such injury or damage caused by defects in design or workmanship or any other reason connected with any additions, alterations or improvements or other activities done by or on behalf of any Unit Owners. The Association also shall not be liable to any Unit Owner or lessee or to any other person or entity for any property damage, personal injury, death or other liability on the grounds that the Association did not obtain or maintain insurance (or carried insurance with any particular deductible amount) for any particular matter where: (i) such insurance is not required hereby; or (ii) the Association could not obtain such insurance at reasonable costs or upon reasonable terms. 8. Use Restrictions. In order to provide for congenial use of the Condominium and Association Property and for the protection of the values of the Units, the use of the Condominium Property shall be restricted to and shall be in accordance with the following provisions: 8.1 Use. The Units may be used only in accordance with applicable zoning requirements and for any lawful purpose by the Owners thereof and their guests, tenants and invitees. Except only to the extent that same may be unlawful or otherwise be deemed a nuisance, the Unit Owners shall be permitted to (i) operate from the Units twenty four (24) hours each day, seven (7) days each week, and fifty two (52) weeks each year, (ii) accept deliveries to, and deliver merchandise, or other items necessary for the operations of the Units, as applicable, from the Units at any and all times, (iii) operate the Units, and conduct business from the Units in a manner consistent with other similar establishments in Florida, and in a manner that parking, lighting, signage, and convenient access by invitees/customers is consistent with that of such other similar establishments. Further, it is understood and agreed that any such operations are expressly permitted hereunder and shall in no event be deemed a nuisance hereunder. The foregoing two (2) sentences shall be interpreted liberally to allow the Unit Owners broad discretion in operating from the Units and may not be amended (nor may any other provision of the Declaration, the Articles, By-Laws or any rules be amended which may limit or derogate the broad rights herein granted) without the affirmative vote of eighty percent (80%) of all of the voting interests in the Condominium. 8.2 Use of Common Elements and Association Pro . The Common Elements and Association Property shall be used only for furnishing of the services and facilities for which they are reasonably suited and which are incident to the use of Units. There shall be no obstruction of the Common Elements nor shall anything be stored in or upon the Common Elements without prior consent of the Association. Without limiting the foregoing, no vehicles may be parked on the Condominium Property in such a manner as to impede or prevent ready access to any entrance to or exits from the Units or parking areas by any other vehicle. No Unit Owner or occupant shall build, plant, or maintain any matter or thing upon, in, over or under the Common Elements without the prior written consent of the Association. -22- 8.3 Nuisance. No noxious or offensive activities shall be carried on, in or upon the Common Elements or in any Unit nor shall anything be done therein either willfully or negligently which may be or become a nuisance to the other Unit Owners or occupants in the Condominium Property. No unlawful use shall be made of any Unit; and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereover shall be observed, including but not limited to compliance with the provisions of the Environmental Cleanup Responsibility Act of the State of Florida, if applicable, or any other law dealing with usage of such space. No nuisance shall be allowed upon or within the Condominium Property, nor any use or practice which interferes with the peaceful possession and proper use of the Condominium Property. 8.4 Alteration. Except as otherwise permitted herein, nothing shall be done to any Unit or on or in the Common Elements which will impair the structural integrity of the Clearwater Beach Project. Each Unit Owner shall use best efforts to avoid disruption to the business and activities of other Unit Owners from any and all work relating to any additions, alterations or improvements that a Unit Owner shall elect to make or perform from time to time. 8.5 Floor Load. No Unit Owner shall place more weight on any floor or on the roof of any part of its Unit or the Clearwater Beach Project than the same was designed to hold. 8.6 Environmental Matters. Nothing shall be done in any Unit or on or in the Common Elements which will result in a violation of any applicable rules or regulations issued by the Department of Environmental Protection or any other governmental agency having jurisdiction thereof. If it is determined that a clean up and/or deposit of monies and/or remedial action is required by any governmental entity having jurisdiction thereof, then, (a) in the event such is required for any Unit, that Unit Owner shall take all necessary steps, and shall be financially responsible therefor, which shall include the cost of said cleanup and/or deposit of monies and/or remedial action; (b) in the event such is required for any Common Element, the Association shall take all necessary steps, and shall be financially responsible therefor, which shall include the cost of said cleanup and/or deposit of monies and/or remedial action; and/or (c) in the event such is required for any Shared Component, the Responsible Unit Owner shall take all necessary steps, and the Unit Owners benefiting from such Shared Component shall be financially responsible therefor in proportion to the Allocated Interest for the applicable Shared Component, which shall include the cost of said cleanup and/or deposit of monies and/or remedial action. 8.7 Trash Disposal. No portion of the Common Elements or other portions of the Condominium Property shall be used or maintained for the dumping of rubbish or debris. Trash, garbage or other waste shall be disposed of in the trash containers designated or approved by the Association or otherwise disposed of in accordance with all Laws. 8.8 No Improper Uses. No unlawful use shall be made of the Condominium or Association Property or any part thereof, and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereover shall be observed. Violations of laws, orders, rules, regulations or requirements of any governmental agency having jurisdiction thereover, relating to any portion of the Condominium and/or Association Property, shall be corrected by, and at the sole expense of, the party obligated to maintain or repair such portion of the Condominium Property, as elsewhere herein set forth. Notwithstanding the foregoing and any provisions of this Declaration, the Articles of Incorporation or By-Laws, the Association shall not be liable to any person(s) for its failure to enforce the provisions of this Section 8.8. Nothing shall be done or kept in any Unit or in or upon -23- the Common Elements which will increase the rates of insurance for the Association or any other Unit Owner beyond the rates normally applicable to properties of like kind, character, and use, without the prior written consent of the Association. No Unit Owner shall permit anything to be done or kept in the Unit or in or upon the Common Elements which will result in the cancellation of insurance for the Association or any other Unit Owner, or which will be in violation of any Law. 8.9 Relief by Association. The Association shall have the power (but not the obligation) to grant relief in particular circumstances from the provisions of specific restrictions contained in this Section 8 for good cause shown. 9. Maintenance and Repairs. Replacement, Alteration and Improvement. 9.1 Maintenance and Repairs. Responsibility for maintenance and repair (excluding repairs necessitated by a Casualty or a Taking) of the Condominium Property in a manner consistent with the overall first class standards of the Clearwater Beach Project shall be as follows: (a) Maintenance and Repair of the Common Elements. The Association shall be responsible for the maintenance and repair of the Common Elements. In furtherance of the foregoing, with respect to those Utility Facilities constituting Common Elements, the Association hereby appoints the Unit Owner of each Unit in which any such Utility Facilities are located, and each such Unit Owner hereby accepts said appointment, to inspect, test, maintain and repair such Common Elements at the Association's expense. (b) Maintenance and Repair by the Unit Owner. The Unit Owner shall inspect, test, maintain and repair at its expense: (i) All portions of its Unit (including landscaping and fire pumps) and all Common Elements located within its improvements, excluding the Shared Components, which shall be maintained and repaired pursuant to Section 9.1(c). (ii) Any portion of conduits, ducts, plumbing, wiring or similar installations required for the transmittal or return of utilities, plumbing, air conditioning, mechanical, electrical or other services located within such Unit and servicing solely that Unit, or located outside such Unit but servicing solely that Unit. (iii) Any exterior sign (other than monument signs) shall be maintained and repaired by the Owner of the Unit where the sign is affixed subject to Rules and Regulations promulgated by the Association. In the event that a Unit Owner elects to have a sign on its Unit removed, and there is no immediate expectation of replacing such sign with a new sign, such Unit Owner shall be responsible for all casts and expenses involved in the removal of said sign and the restoration of the exterior of its Unit to a condition comparable to the balance of the exterior of such Unit, in a prompt and workmanlike manner. The foregoing notwithstanding, in the event a component of a Unit is located in space that is non-contiguous or not physically connected to said Unit and said component requires emergency repairs, the failure to repair having an immediate adverse affect on any other Unit, then, and in that event, any Owner of a Unit may make emergency repairs to the component, if the Responsible Unit Owner fails to act on an emergency basis and -24- provided the acting Unit Owner provides the Responsible Unit Owner with as much advance notice as is reasonably practicable. Such emergency repairs shall be made in a good, first-class and workmanlike manner, consistent with the overall quality of the Clearwater Beach Project. The Responsible Unit Owner shall promptly reimburse the Unit Owner who made such repairs for all reasonable costs associated therewith. (c) Maintenance. Operation and Repair of Shared Components. Whenever a Shared Component shall require maintenance, service, replacement or repair, then, the Responsible Unit Owner shall be responsible for any operation, maintenance, service, replacement and Repair Worts for such Shared Component and the other Unit Owners shall reimburse the Responsible Unit Owner for the Allocated Expenses incurred in connection therewith in accordance with Section 6.1(b) above. (i) Obligations of Responsible Unit Owner. The Responsible Unit Owner shall inspect, test, maintain and repair the Shared Components for which it is responsible, in accordance with the standards set forth in Section 9.1(d). The duties and obligations of a Responsible Unit Owner are independent and shall continue as obligations and duties of the Responsible Unit Owner regardless of whether the Responsible Unit Owner is then presently operating its businesses at or from said Owner's Unit. An easement over and upon the Units and the Common Elements is hereby reserved in favor of the Responsible Unit Owner to effect such purposes. (ii) Self Help Remedies. The foregoing notwithstanding, any Unit Owner who is not responsible for the maintenance or repair of a Shared Component shall have the right to make emergency repairs to said Shared Component if the Responsible Unit Owner fails to act on an emergency basis and provided the acting Unit Owner provides the Responsible Unit Owner with as much advance notice as is reasonably practical. Such emergency repairs shall be made in a good, first-class and workmanlike manner, consistent with the overall quality of the Clearwater Beach Project and such "self-help" repair rights shall not affect the Allocated Interests. An easement over and upon the Units and the Common Elements is hereby reserved in favor of such Unit Owner to effect such purposes. (iii) Default Remedies. If default shall be made in the payment of an Owner's obligation to pay to the Responsible Unit Owner its Allocated Expenses or in the payment of any other sum required to be paid by an Owner to the Responsible Unit Owner under this Section 9.1(c), and such default shall continue for five (5) business days after written notice to the defaulting Unit Owner, then the Responsible Unit Owner may treat the occurrence of any one or more of the foregoing events as a breach of this Section 9.1(c), and in such event the Responsible Unit Owner shall have a lien against the defaulting Units and such other rights granted a "Responsible Unit Owner" in Sections 6.1(d) and 6.3 of the Declaration and may enforce such lien as provided therein. If default shall be made in performance of the obligations of the Responsible Unit Owner set forth in this Section 9.1(c) and such default shall continue for thirty (30) days (unless such default cannot be cured within thirty (30) days, in which event, so long as the Responsible Unit Owner is diligently pursuing a cure, such default shall be -25- allowed to continue for an additional thirty (30) days), then the other Unit Owners may treat the occurrence of any one or more of the foregoing events as a breach of this Section 9.1(c), and thereupon, at its option may, with or without notice or demand of any kind to the Responsible Unit Owner or any other person, cause such default to be cured and bill the Responsible Unit Owner for its share of the same, in which case the curing Unit Owner shall have a lien against the Unit of the Responsible Unit Owner and such other rights granted a "Responsible Unit Owner" in Sections 6.1(d) and 6.3 of the Declaration and may enforce such lien as provided therein. (d) Standards. All such inspections, testing, maintenance and repairs conducted (i) pursuant to Section 91(a), shall be performed by the Association, and (ii) pursuant to Sections 9.1(b) and 9.1(c), shall be performed by the Responsible Unit Owner: (a) in a prompt, good and workmanlike manner consistent with the overall first class standards of Clearwater Beach Project; (b) in a manner which minimizes any interruption of the operation of the Unit(s) and the Common Elements and the services provided to said Unit(s) and Common Elements and without unreasonably disturbing the rights of the Unit Owner(s) and their Permittees; and (c) after not less than twenty-four (24) hours prior written notice to the affected Unit Owner, except in the case of emergency where only such notice as is reasonable under the circumstances shall be required. In the event there is a question as to whether the standards set forth here have been satisfied, a decision pursuant to the Dispute Resolution Plan described in Section 13.2 shall be determinative. 9.2 Replacement. In the event that a portion of a Common Elements or a Shared Component must be replaced as a result of ordinary wear and tear, the same party who has the responsibility to maintain and repair such items shall have the responsibility to replace same and the costs thereof shall be allocated among the Unit Owners in proportion to each Unit Owner's Percentage Share, if the replacement is of all or a portion of a Common Element, or in proportion to each Unit Owner's applicable Allocated Interest, if the replacement is of all or a portion of a Shared Component. 9.3 Alteration and Improvement. (a) Interior of the Unit. Each Unit Owner has the right to change the interior design and/or arrangement of the Unit it owns provided, however, that the following requirements are satisfied in each instance: such change is in compliance with all Laws. Unless all other Unit Owners consent in writing, such change shall not: (1) compromise an easement for support relied upon by any other Unit or a Common Element, (2) impair the provision of Utility Services to any other Unit or a Common Element, (3) unreasonably interfere with the permitted use or operation of any other Unit by its Unit Owner or its Permittees or of the Common Elements, (4) change the aesthetic character of Clearwater Beach Project in a material, adverse manner, (5) have an adverse effect on the structural integrity of any other Unit or a Common Element; or (6) be inconsistent with the overall first class standards of the Clearwater Beach Project. (b) Exterior and Landscaping of the Units and Common Elements. Except for the alterations and improvements to the landscaping and exteriors of the Improvements made in accordance with Section 11, there shall be no other alterations or improvements to the -26- exteriors of any Units as they exist on the date hereof (including, but not limited to, facade, roofing, wall mounted signage, windows or entrances) and no modifications of (including reductions in, or additions to) any landscaping as it currently exists, unless the following requirements are satisfied in each instance: (i) such alteration, improvement or modification is in compliance with all Laws and (ii) unless all other Unit Owners consent in writing, such change shall not: (1) compromise an easement for support relied upon by any other Unit or a Common Element, (2) impair the provision of Utility Services to any other Unit or a Common Element, (3) impair the view afforded any other Unit, (4) unreasonably interfere with the permitted use or operation of any other Unit by its Unit Owner or its Permittees or of the Common Elements, (5) change the aesthetic character of Clearwater Beach Project, in a material adverse manner; or (6) be inconsistent with the overall first class standards of the Clearwater Beach Project. The foregoing notwithstanding, a Unit Owner may replace windows, exterior facades, facings and other decorative elements, provided said Unit Owner complies with all Laws and further provided that the same are substantially identical to the exterior materials and elements that are not being replaced. 9.4 Documentation. Each Unit Owner shall keep the following documentation on site and available for inspection by the Association during normal business hours: Copies of all building permits for new construction and certificate(s) of occupancy, to the extent in the Unit Owners possession; (i) Current as-built plans and specifications, to the extent in the Unit Owners possession; and (ii) Copies of all maintenance and testing records for the past three (3) years, to the extent in the Unit Owner's possession. In addition, each Unit Owner shall promptly provide to the Association, upon request, access to copies of current as-built plans and specifications for its respective Unit, to the extent in the Unit Owner's possession. 9.5 Incidental Damage. Any damage caused to a Unit or the Common Elements by reason of any maintenance and repair performed in accordance with the provisions of this Section 9 or elsewhere in this Declaration shall be promptly repaired to a condition substantially the same or superior to the condition existing prior to the damage by the party causing such damage, at said party's expense. 9.6 Inspection and Testina. (a) The Association or its designee may inspect and test any portion of the Condominium Property if the Association reasonably believes that any such part of the Condominium Property is not being properly maintained and repaired or, upon request from any other Unit Owner, based upon such other Unit Owner's reasonable belief that (i) such property is not being properly maintained and repaired, and (ii) the failure to properly maintain and repair such property is having a material and adverse effect on such Unit Owner's Unit (or the operations from such Unit), and if the Association determines that same is not being properly maintained and repaired, the Association shall so advise the Responsible Unit Owner. In the event a question arises as to whether any portion of the Condominium Property is or is not being properly maintained, a decision pursuant to the Dispute Resolution Plan described in Section 13.2 shall be determinative. (b) In the event of an emergency, the Responsible Unit Owner shall immediately perform required maintenance or repair, and should such Unit Owner fail to do so, then the -27- Association may proceed to maintain or repair the portion of the Condominium Property so affected and make such necessary and reasonable repairs, and to collect any monies advanced by the Association for these purposes through a Special Assessment against the applicable Unit. (c) In the event there is no emergency, a Unit Owner will be allowed twenty (20) days to perform required maintenance or repair after receipt of notice thereof from the Association or from the other Unit Owner(s), and if at the end of such time period, more time is required, and the Unit Owner has been diligently performing required maintenance or repair, then such additional time as may be necessary to complete such maintenance or repair shall be allowed, provided the Unit Owner continues to diligently pursue same. The Association may proceed to maintain the Condominium Property and to make such repairs, and to collect any monies advanced by the Association for these purposes through a Special Assessment against the applicable Unit in the event that: (i) the Unit Owner fails to commence correction of such matter or (ii) the Unit Owner fails to diligently complete the same. 10. Insurance. 10.1 Property Insurance. (a) Coverages. The Responsible Insurance Party shall obtain and keep in full force and effect at all times property damage insurance, excluding only: (a) fixtures, installations or additions comprising any part of the Building within the unfinished interior surfaces of the perimeter walls, floors and ceilings of the individual Units initially installed or replacements thereof of like kind and quality, (b) all personal property and trade fixtures located within any Unit, which shall be separately insured by each Unit Owner; and (c) all moveable personal property belonging to tenants and subtenants and such portion of tenant finish improvements, if any, which a tenant is responsible to insure under its lease. The property damage insurance shall be on a standard all-risk form including coverage for sprinkler leakage, water damage, and other special perils (or on such other form as the Responsible Insurance Party, as applicable, selects with the approval of the other Unit Owners and all Mortgagees). All property damage insurance shall, at a minimum, meet the following requirements: (i) Such insurance shall provide full replacement cost coverage, with an agreed value endorsement. The limit of coverage thereunder shall be established by insurance appraisals acceptable to the Association and the applicable insurer, which the Responsible Insurance Party, as applicable, shall cause to be performed from time to time as the Responsible Insurance Party, as applicable, shall direct. In addition, the Responsible Insurance Party shall cause the insurance appraiser to determine the replacement costs of the Common Elements and/or the Shared Components, as applicable, but such allocation shall not limit the amount of insurance proceeds to which any Unit Owner shall be entitled to receive on account of any insured loss, in the event such Unit Owner shall be entitled to proceeds in excess of replacement cost. In the event that a Unit Owner believes that the amount of insurance coverage being maintained is inadequate, the such Owner shall have the right to obtain, at its -28- own cost and expense, a separate appraisal and to submit same to the other Unit Owners. Upon receipt, the other Unit Owners shall have the option to either (i) accept the findings of the appraisal, in which event, it shall obtain such adjusted insurance coverage to meet the findings of the appraisal, or (ii) advise the requesting Owner that it does not accept the findings of the appraisal, in which event, if the requesting Unit Owner does not, within fifteen (15) days following the other Unit Owners' advice that the appraisal is not accepted, mutually agree upon the amounts of insurance coverage to be maintained, the matter shall be submitted to the Dispute Resolution Plan. (ii) Such insurance shall include demolition, increased cost of construction, and building ordinance coverages, boiler and machinery coverage, flood insurance and an inflation-guard endorsement. Such insurance shall (i) name each Unit Owner as a named insured, (ii) designate the Association as an additional named insured and (iii) require that the insurance proceeds be disbursed to the Unit Owners or such Unit Owners' Mortgagees, as applicable, in accordance with the Unit's applicable Allocated Interests with respect to the Shared Components, and with each Unit's Percentage Shares with respect to the Common Elements, and as provided in Section 11.4(a), or with respect to the Insurance Trustee, as provided in Section 11.4(b), as the case may be, after the determination to reconstruct or repair has been made pursuant to Section 11.2 and 11.3. (iv) Such insurance shall contain a standard mortgagee endorsement naming each mortgagee. (v) The deductible under any such insurance shall not be greater than that which is commercially reasonable, without the approval of all Unit Owners and their Mortgagees. (vi) In any case in which any material alterations or improvements are being constructed upon or within any Unit or any Common Element, there shall be added to such insurance during the construction period, builder's risk coverages (the additional cost of which shall be bome solely by the Unit Owner or Owners of the Units in which such alterations or improvements are being constructed, and if there is more than one such Unit Owner, or a Shared Component is involved, to be allocated between such Unit Owners based on the costs of the applicable alterations and improvements). (vii) The premium for the property damage insurance maintained by the Responsible Insurance Party with respect to the Units, the Common Elements and/or the Shared Components, as required by this Section 10.1 (including boiler and machinery and any special perils coverages or endorsements), shall be allocated among the Unit Owners in proportion to each Unit Owner's Allocated Interests, with respect to the Shared Components, and each Units Percentage Shares, with respect to the Common Elements. Any reasonable costs incurred by the Responsible Insurance Party in connection with the maintaining of the insurance -29- required to be maintained by it pursuant to this Section 10.1, including, without limitation, costs of any appraisals, shall be part of the Common Expenses or Allocated Expenses, a applicable. In the event that a Unit Owner does not timely pay its allocable portion thereof, the Responsible Insurance Party shall have a lien against the such Unit or Units and such other rights granted a "Responsible Unit Owner' in Sections 6.1(d) and 6.3 of the Declaration and may enforce such lien as provided therein. (viii) Each Unit Owner may also obtain business income coverage for the benefit of such Unit Owner, in such amounts as may be determined by each Unit Owner. Each Unit Owner shall pay the premium attributable thereto. At the election of a Unit Owner, said Unit Owner's Mortgagee(s) (if any) for which such business income insurance is maintained shall be designated as the party entitled to collect the proceeds of such business income coverage. The proceeds of any such coverage shall be separately payable to each Unit Owner or its Mortgagee(s) (as provided immediately above) and not to the Insurance Trustee or the Association. (b) Obligation to Purchase. Declarant, for each Unit owned by it, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree to purchase such insurance policies containing the coverages described in this Section 10.1 and to pay all insurance related expenses and costs imposed on it under this Declaration. The requirement to purchase such insurance policies and to pay all such costs and expenses (i) shall be a charge on the Land and a continuing lien on the affected Unit; (ii) shall be an obligation of the Owner of the Unit at the time such costs and expenses are due and an obligation of all subsequent Owners of said Unit until paid; and (iii) may be enforced in any manner provided in this Declaration. The provisions of Section 10.1 constitute an independent covenant running with the Land between the Unit Owners, and the obligation to purchase property damage insurance covering the Shared Components, as set forth herein, is not pursuant to the Condominium Act. (c) Copies. Copies of all insurance certificates, policies and their endorsements required under this Section 10.1 shall be deposited with the Association and the Insurance Trustee (when and if appointed). Such copies shall be available for inspection by Unit Owners or their authorized representatives at reasonable times at the offices of the Association. 10.2 Liability Insurance. (a) Coverages. The Association hereby charges, directs and requires that each Unit Owner obtain and keep in full force and effect at all times commercial general liability insurance covering (x) public liability for bodily injury and property damage, and (y) claims of one or more insured parties against other insured parties, including a contractual liability endorsement covering the indemnity set forth in Section 19.11 below. Such liability insurance shall cover as additional insureds the Board of Directors of the Association, the Association, the officers of the Association, all mortgagees (to the extent requested by such mortgagees by written notice to the Association), the other Unit Owners and their -30- respective employees and agents and shall, at a minimum, have limits of coverage that are not less than the following: 0) $1,000,000 per occurrence with respect to personal injury (including death); (ii) $1,000,000 per occurrence with respect to damage to property; (iii) $2,000,000 per occurrence with respect to contractual liability; and (iv) $10,000,000 umbrella liability with respect to the liability coverages required hereunder. Such insurance shall also include premises/operations, productsicompleted operations, personal/advertising injury, and property/legal liability coverages and shall expressly provide that additional insureds shall be entitled to defense of claims. In addition, (b) So long as any alcoholic beverages shall be served, sold, or otherwise made available upon or from any of the Retail Units, the applicable Retail Unit Owner shall maintain liquor liability insurance, in such form and with such limits of coverage as are then generally being maintained by owners or operators of Retail facilities of equivalent class in the State of Florida. (c) All such liability policies will name the Association, each Unit Owner, and each Unit Owner's mortgagee(s) (if requested by such mortgagees by written notice to the Association) as additional insureds. 10.3 Miscellaneous Insurance Provisions. (a) All insurance required to be maintained under this Declaration shall provide that it may not be cancelled or modified without at least thirty (30) days' prior written notice to the Association, all Unit Owners, and all mortgagees who have given the Association notice of its encumbrance pursuant to this Declaration. (b) The Association and each Unit Owner may carry any other type of insurance it considers appropriate in amounts it deems appropriate, to insure the interests of the Association and the Unit Owners; provided, that the liability of the carriers issuing insurance required by this Declaration shall not be affected or diminished by reason of any such additional insurance. Without limiting the foregoing, each Unit Owner shall be entitled to purchase such additional coverages and endorsements to any property damage and liability insurance policies as such Unit Owner may desire so long as it does not adversely affect the required coverage, and provided that all additional costs of such coverage shall be paid by said Unit Owner. (c) All insurance required to be maintained under this Declaration shall provide that no act or omission by any insured will void the policy or be a condition to recovery under the policy as against any mortgagee or other named insured or additional insured party. In addition, all insurance providing coverage for damage, destruction, or other loss from Casualty and/or for loss of business income (whether required or permitted hereunder) shall provide that the insurer furnishing such coverage waives its right of subrogation under the -31- policy against the Association, each Unit Owner, each mortgagee, each tenant, each manager or operator of a Retail Unit, each property manager or operator of any Unit, any other person claiming by, through, or under any Unit Owner, and any director, agent, or employee of any the foregoing. (d) If at the time of a loss under the policy, there is other insurance in the name of an insured party covering the same risk covered by the policy, the policy of the Unit Owner of the building incurring such loss shall be primary as to any similar coverages maintained by any other Unit Owner. Such losses shall include, without limitation, liabilities arising from events or occurrences upon such Unit or any Common Elements or easement areas for which the owner of such Unit is responsible under Sections 11.2 and 11.3, or for which a Unit Owner is required to indemnify the other Unit Owners under Section 19.11. (e) The Association may adopt and establish written nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment, provided that the Association may not adopt policies or procedures which contradict or contravene the terms of this Declaration. Insurance policies and insurance coverage shall be reviewed at least annually by the Association. (f) All insurance obtained by the Association under Sections 10.4 and 10.5 hereof or by any Unit Owner hereunder shall, except as expressly provided otherwise elsewhere in this Declaration, contain deductibles no greater than the maximum deductible amounts established in writing by the Responsible Insurance Party with respect to each type of insurance required under this Declaration. To the extent that (1) Restoration is required under the provisions of this Declaration, or an insured party is required to indemnify any other person under the provisions of this Declaration, and (2) the amount the insurer would otherwise pay with respect to such Restoration or indemnified matter is reduced by the amount of a deductible, then (i) in the case of deductibles under policies maintained by the Association or by a Unit Owner where the Association has agreed in this Declaration to be liable for the premiums payable thereunder, the Unit Owners shall be liable for the amount of such deductibles in the same proportions as the Unit Owners share in the cost of such insurance, and (ii) in the case of deductibles under policies maintained by a Responsible Unit Owner, each Unit Owner shall be liable for a share of the amount of such deductible equal to its Allocated Interest. (g) Notwithstanding anything contained herein to the contrary, all insurance carriers shall conform to the minimum financial rating, asset size, and other reasonable requirements imposed by Mortgagees; provided, that in no event shall any insurance required hereunder be maintained with an insurer having a rating by Best Insurance Reports that is lower than "A+/X111" (or if such rating is no longer published or is modified, then such rating or qualifications as shall be equivalent to the aforesaid rating as determined as of the date of this Declaration), without the approval of all Mortgagees. 10.4 Fidelity Insurance. The Association or its managing agent shall also obtain and maintain fidelity coverage against dishonesty of directors, officers, employees of the Association, the managing agent and any other person handling funds of the Association, against destruction or disappearance of money or securities and forgery. Said policy shall also contain endorsements covering any persons who serve the Association without compensation. Such fidelity bond shall -32- name the Association as obligee and such coverage shall not be less in the aggregate than two months' current Assessments plus reserves, as calculated from the current Budget of the Association. The Association shall require of any managing agent that such managing agent maintain fidelity insurance coverage or a bond in an amount not less than Fifty Thousand Dollars ($50,000). 10.5 D & 0 Liability Insurance. The Association shall also maintain liability insurance for the benefit of the directors and officers of the Association, with coverages commonly carried under so-called "D & 0" policies by not-for-profit corporations, in amounts reasonably approved by the Board from time to time (but in no event less than $1,000,000 per occurrence), the cost of which shall be a Common Expense. 10.6 Comoliance with Insurance Requirements. Neither the Association nor any Unit Owner shall commit or permit to occur any violation of the insurance policies required hereunder and maintained by the Association or any Unit Owner pursuant to this Declaration, nor permit any action or keep or permit to be kept in any Unit any substances or materials that (i) would result in termination of any such policies, (ii) could result in the loss of the right of recovery under any of such policies, or (iii) could result in reputable, independent insurance companies refusing to insure the property covered thereby in the amounts required by this Declaration. Each Unit Owner shall provide to the Association, to the other Unit Owners and to each Mortgagee, prior to the expiration or renewal date under each insurance policy required or permitted to be maintained by said Unit Owner hereunder, evidence that said Unit Owner is continuing to maintain the insurance policies and coverages (including all required endorsements) for the benefit of all persons required to be insured, as provided for under this Section 10. Such evidence shall be in the form of one or more certificates of insurance; provided, that at the written request of any Unit Owner or any Mortgagee, said Unit Owner will provide copies of the applicable insurance policies. In any case in which any of the coverages or minimum coverage limits provided for in this paragraph cease to be commercially available, any Unit Owner affected thereby shall notify the Association, the other Unit Owners and all mortgagees, and, in such event, such requirements may be varied, or other provisions may be made for protection against such risks, upon the approval of two-thirds of the Unit Owners and Mortgagees. 10.7 Failure to Maintain Insurance; Remedies. If any Unit Owner shall fail to promptly obtain or continuously maintain any of the insurance required by this Declaration or to pay the premium on such insurance when the same is due, each of the Association and the other Unit Owners shall have the right, but not the obligation, to obtain such policies and/or pay such premiums, and to cause the Association to charge the cost thereof to the failing Unit Owner as a Special Assessment. If the Association shall fail to promptly obtain or continuously maintain any of the insurance required by this Declaration or to pay the premium on such insurance when the same is due, each of the Unit Owners and each of the Mortgagees shall have the right, but not the obligation, to obtain such policies and/or pay such premiums upon not less than three (3) business days' prior notice to the Association and the other Unit Owners, and if any Unit Owner or Mortgagee shall elect to so acquire any such insurance, the Unit Owner or Mortgagee paying for such insurance shall be entitled, in addition to any other remedy, either (x) to cause the Association to charge the cost thereof to the Association and to be subrogated to the assessment lien of the Association as against any Unit Owner having failed to pay its share of the premiums therefor as required under this Declaration, or (y) to require the Association to charge (as a Special -33- Assessment) the cost thereof directly to any Unit Owner having failed to pay its share of the premiums therefor as required hereunder. 11. Reconstruction or Repair After Fire or Other Casual . 11.1 Reconstruction or Re air After Casual . If the Clearwater Beach Project, or any improvements, structures, fixtures or equipment therein, or any Common Element or any part thereof, is damaged or destroyed by any Casualty, the repair, Restoration or ultimate disposition of any proceeds arising as a result thereof shall be in accordance with the following: 11.2 Casualty to Units. Except as may otherwise be required by the Act, and subject to the availability and sufficiency of insurance proceeds for such purpose, upon any Casualty to any Unit, subject to the provisions of Section 11.3 below: (a) Each Unit Owner shall be obligated to diligently pursue and promptly complete the Restoration of the portion or portions of its Unit that shall have been affected by such Casualty, to the extent (and only to the extent) of all structures, Improvements, Utility Facilities, and areas subject to easements in favor of other Unit Owners hereunder that are required in order to Restore, use, and operate any other Unit, Shared Components or any Common Elements necessary for the Restoration, use and operation of any other Unit, if such Unit is operational or is itself being Restored, and, unless the condominium form of ownership is terminated as provided in Section 15, each Unit Owner shall have the option to Restore its Unit (or any portion thereof it is not obligated to restore as aforesaid), upon the terms and conditions hereinafter set forth. If said Unit Owner elects not to restore its Unit, said Unit Owner shall be obligated to diligently pursue and promptly complete either of the following: (i) construction within its Unit of a new building and related structures, improvements, fixtures and equipment as such Unit Owner may desire to construct, for such uses as are permitted by and in accordance with all Laws, provided the same are consistent with the provisions of this Declaration and substantially preserve the easements reserved herein for the benefit of the other Unit Owners and the Association; or (ii) demolition of all damaged structures and improvements that are not being Restored, removal of all debris, the permanent closure of openings to the Clearwater Beach Project that are created by such demolition and removal, and the exterior finishing of all unrestored areas, so as to (i) preserve the security and the architectural integrity of the remaining portions of the Clearwater Beach Project, (ii) provide an exterior finish that is architecturally consistent with the other portions of the Clearwater Beach Project, (iii) comply with all Laws, (iv) place all unrestored areas in a sightly condition, and (v) comply with the requirements of Section 11.2(a) above. Notwithstanding anything herein contained to the contrary, in the event of any Casualty affecting more than one Unit or any of the Shared Components or Common Elements (which shall be deemed to be all Casualties, other than one which only affects the interior of a Retail Unit and does not otherwise affect the structural integrity of the Building or the Shared Components or Common Elements), any and all such Restoration shall be -34- undertaken by the Responsible Insurance Party, in accordance with the provisions of Sections 11.4(b), 11.5, 11.6, 11.7 and 11.8 below. 11.3 Casual to Common Elements or Shared Components. To the extent any Common Elements or Shared Components are subject to any Casualty: (a) The repair and Restoration of all Common Elements and/or Shared Components shall be the responsibility of the Responsible Insurance Parry. The Responsible Insurance Party shall be obligated to promptly pursue and diligently complete the Restoration of all Common Elements and/or Shared Components for which it is responsible. In any case in which the Association or an Owner, as applicable, is required to Restore, and does Restore, any Common Elements or Shared Components hereunder, the Association and/or such Owner shall be entitled to use any and all available insurance proceeds any Unit Owner or the Insurance Trustee shall receive or be entitled to receive on account of such Casualty to the Common Elements and/or Shared Components, as applicable. If insurance proceeds are inadequate, the provisions of Section 11.5 hereof shall govem. The occurrence of a Casualty that may affect any Owner's use or enjoyment of any Common Elements and/or Shared Components shall not constitute a basis for an abatement of Assessments and Charges for Common Expenses. 11.4 Collection and A lication of Insurance Proceeds. (a) Collection and Application of Insurance Proceeds Upon Casualty to One Unit. In any case in which a Casualty affects only one Unit and does not affect any Common Elements or Shared Components and does not otherwise affect the structural integrity of the Building or the provision of Utility Services to any other Unit, then the Owner of such Unit shall be (and is hereby) empowered and authorized to settle and adjust the applicable insurance claims on account thereof and to collect and apply the insurance proceeds provided, that to the extent required by any mortgage upon such Owners Unit, such insurance proceeds (i) shall be settled and adjusted by or with the consent of the Mortgagee(s) of such Unit and (ii) shall be paid over to the First Mortgagee, for application as provided under the such First Mortgage; provided further, however, that each mortgagee must permit the application of insurance proceeds so as to enable each Unit Owner to comply with its obligations under this Section. If required by its mortgagee, such proceeds may be deposited in an escrow account with an escrow agent. The escrow agent shall administer the disbursement of such proceeds in a manner consistent with this Section 11. The escrow agent shall be the First Mortgagee, or its designee, of the Unit involved. The escrow account shall be subject to such limitations on disbursement as may be reasonably required by the escrow agent and which meet the requirements customarily imposed by prudent institutional mortgage lenders for disbursements of funds for construction, including, without limitation, draw requests certified by the applicable Unit Owner, general contractor, and project architect (including certification from the architect of the stage of completion under each contract and subcontract), retainage of funds in accordance with prevailing construction practices, progressive lien waivers submitted by the contractor and subcontractors, continuing evidence of the availability of sufficient funds to complete the restoration, and satisfactory date-downs of title at the time of each disbursement. -35- (b) Collection and Application of Insurance Proceeds Upon Casual to More than One Unit or to Common Elements or Shared Com nents. Upon the occurrence of any Casualty affecting either (i) more than one Unit or (ii) any Common Elements or Shared Components, (iii) the structural integrity of the Building, or (iv) the provision of Utility Services to more than one Unit, the following provisions shall apply: (i) This Declaration does hereby make mandatory the irrevocable appointment, as attomey-in-fact, of either (i) a title insurance company or (ii) a bank having trust powers or (iii) a trust company located in Pinellas County having a minimum ratio of total capital to total assets of at least seven percent (7%) and an aggregate capital and unimpaired surplus of at least Fifty Million Dollars ($50,000,000.00), to be selected by the Responsible Insurance Party, as "Insurance Trustee," provided, that no Insurance Trustee shall be designated whose accounts are not government insured or guaranteed. Notwithstanding the foregoing, to the extent required by any institutional lender holding a mortgage encumbering the Parking Unit or the Retail A Unit, said holder shall be deemed an acceptable Insurance Trustee. (ii) Each of the Unit Owners irrevocably constitutes and appoints the Responsible Insurance Party, applicable, its true and lawful attorney, in its name, place, and stead, for the purpose of dealing with the Condominium Property in connection with such Casualty as set forth in this subsection 11.4(b). Title to each Unit is declared and expressly made subject to the terms and conditions hereof, and acceptance by any grantee of a deed or other instrument of conveyance from the Owner or from any subsequent Unit Owner shall constitute appointment of the attomey-in-fact by such grantee as herein provided. The Responsible Insurance Party, shall, in undertaking the duties and exercising the powers and authority granted hereunder and in clauses 11.4(b)(iii) and 11.4(b)(iv) below, have an obligation to act in a non-discriminatory manner to further the interests of the Unit Owners. In that regard, the Responsible Insurance Party shall, prior to accepting any insurance settlement, consult with the Unit Owners regarding the terms of the proposed settlement, provided, however, that the consent or approval of the Unit Owners shall not be required unless the proposed amount of insurance proceeds to be received shall be inadequate to effect Restoration of the Units. (iii) Subject to the provisions of clause 11.4(b)(ii) above, the Responsible Insurance Party shall be (and is hereby) empowered and authorized to settle and adjust the applicable insurance claims on account of a Casualty covered by this subsection 11.4(b) and the Unit Owners shall collect and apply the insurance proceeds on account thereof, as provided in this Section 11. (iv) As attomey-in-fact, the Responsible Insurance Party, by its duly authorized officers or agents, shall, subject to the provisions of clause 11.4(b)(ii) above, have full and complete authorization, right, and power to make, execute, and deliver any contract or other instrument with respect to the interest of a Unit Owner which is necessary and appropriate to exercise the powers herein granted. -36- (v) The proceeds of any insurance collected shall be available to the Responsible Insurance Party for (i) the purpose of Restoration of the Units, Shared Components and Common Elements (or any other reconstruction permitted under this Declaration), as applicable, or (ii) for distribution to the Unit Owners where either (A) any Unit Owner is not obligated to Restore, and elects not to Restore, its Unit in accordance with this Section 11 or (B) the Unit Owners elect to terminate the Condominium in accordance with the provisions of Section 15, in which event the insurance proceeds shall be distributed to the Unit Owners in accordance with Section 11.6 (provided, however, that no proceeds shall be distributed until all costs of any Restoration to be undertaken has been completed and paid). Each Unit Owner hereby directs the Insurance Trustee to release, in accordance with the provisions of this Section 11, to the applicable Responsible Insurance Party, such portions of the insurance proceeds as are necessary to fully Restore the Units and/or such Common Elements and/or Shared Components in accordance with the terms of this Declaration. (vi) Declarant, as the Owner of each Unit, and each subsequent Owner of a Unit, by its acceptance of a deed or other form of conveyance of its Unit, covenants and agrees, upon the occurrence of a Casualty governed by this subsection 11.4(b), to pay over to the Insurance Trustee all insurance proceeds covering such property losses immediately upon receipt thereof. To the extent of any portion of insurance proceeds received (whether by the Parking Unit Owner or a Retail Unit Owner) on account of another Unit Owner, said portion shall be placed with the Insurance Trustee, to be held and disbursed only in accordance with the terms hereof. To the extent that a Unit Owner, in settling an insurance claim, is to receive proceeds with respect to more than one Unit, the insurance company, in paying such proceeds, shall allocate same between the Units. (vii) The Insurance Trustee shall not be liable for payment of premiums nor the failure to collect any insurance proceeds. (viii) All expenses of the Insurance Trustee shall be paid by the Unit Owners in proportion to their Allocated Interests. (ix) The duty of the Insurance Trustee shall be to receive such proceeds as are paid to the Insurance Trustee and to hold the proceeds in trust, pursuant to the provisions of this Declaration, for the purpose and application elsewhere stated in this Declaration and for the benefit of the Association and/or the Unit Owner(s) and, when applicable, the Unit Owner's Mortgagees. (x) Within sixty (60) days following settlement of the insurance claim and receipt of insurance proceeds, the Responsible Insurance Party shall deliver to the Unit Owners an anticipated date for commencement of Restoration and an anticipated date for completion of Restoration of the Units (as same may be extended by Force Majeure, the "Anticipated Completion Date"). In establishing these dates, the Responsible Insurance Party shall act in a commercially reasonable manner and shall establish a Restoration plan that will allow for each Unit to be Restored as soon as reasonably possible (keeping in mind that one -37- Unit may reasonably be able to be opened prior to another Unit). Subject only to delays resulting from Force Majeure, the Responsible Insurance Parry shall make commercially reasonable efforts to effect the Restoration within the time periods described to the Unit Owners. (xi) Notwithstanding anything herein contained to the contrary, provided that commercially reasonable efforts are made to coordinate with the Unit Owners, nothing herein shall preclude a Unit Owner from effecting Restoration of its own Unit from its own funds (and upon receipt of insurance proceeds, the Unit Owner effecting the repairs from its own funds shall be entitled to prorata reimbursement from the insurance proceeds). 11.5 Insufficient Insurance Proceeds. In the case of damage, destruction, or other loss affecting only one Unit, receipt of insufficient insurance proceeds shall not relieve the Responsible Insurance Party of complying with the provisions of Sections 11.2 and 11.3 and such Unit Owner shall be required to deposit the amount of such insufficiency (including any deductibles) with the Insurance Trustee, prior to the commencement of Restoration. In all other cases, if the insurance proceeds are insufficient to Restore the damage, destruction, or other loss resulting from any Casualty: (a) the Owners may elect to terminate the condominium form of ownership as provided herein; (b) where insurance funds are insufficient to effect a Restoration of Units and Common Elements to the minimum extent required by Sections 11.2 and 11.3 or in the event of an uninsured casualty (and the Unit Owners shall not have made the election to terminate the Condominium under paragraph (a) above), the (i) Assessments shall be made against all Unit Owners, where all Unit Owners or the Common Elements have been affected; and (ii) Charges shall be made against the affected Unit Owners, where only Shared Components are affected by such Casualty, in each case in sufficient amounts to provide funds for the payment of such costs. All such Assessments against all Unit Owners pursuant to (i) above shall be in proportion to the Percentage Shares applicable to the affected Owner's Unit, and all such Changes against the affected Unit Owners pursuant to (ii) above shall be in proportion to the Allocated Interests. The failure by any Unit Owner to pay the Assessments and Charges described above shall be governed by Section 6.1(d) and Section 6.3 hereof; and (c) where the Unit Owners shall not have made the election under paragraph (a) above to terminate and the insurance proceeds are sufficient to effect the minimum Restoration required by Sections 11.2 and 11.3 but not sufficient to effect a complete Restoration of all Units affected by such Casualty, and the Owners desire to exceed the minimum requirements of Sections 11.2 and 11.3, then insurance proceeds shall be allocated as follows: (i) first, to restoration of the Parking Unit; (ii) second, subject to all applicable Laws, and so long as such Restoration, at a minimum, completes the exterior of all affected Units and satisfies the minimum requirements of Sections 11.2 and 11.3, to the Restoration of so much of such damage or destruction of the other Units affected by such Casualty as the -38- amount of insurance proceeds available will permit, such proceeds being allocated between the Owners whose Units were affected by such Casualty, on a pan passu basis in proportion to the total costs that would be required to effect a complete Restoration of the affected Units (and in such case the cost of Restoration shall be determined by averaging three estimates of such costs from three (3) qualified professional insurance claims adjusters selected by the Association, which the Association shall obtain at the request, and at the expense, of such Unit Owners within thirty (30) days after receipt of a written request therefor from such Unit Owners); provided, that such proceeds may be allocated in such other priority and/or manner as the Owners and all Mortgagees shall otherwise agree. Nothing herein shall be construed to permit the partial Restoration of a Unit. The allocation of insurance proceeds under Section 11.5(c)(i) above shall not mitigate a Unit Owner's obligation to fund any insufficiencies, in accordance with this Section 11.5(c) and to fully and completely Restore its Unit, once Restoration has commenced. 11.6 Excess Insurance Proceeds. If the amount of available insurance proceeds shall exceed the cost of any Restoration that a Unit Owner undertakes in accordance with this Section (such as, but not limited to, where a Unit Owner elects not to fully Restore its Unit or to construct new improvements in lieu thereof), the excess shall be returned to the affected Unit Owners in accordance with their Allocated Interests, subject to the following: to the extent required by any mortgage on any Unit, such excess proceeds shall be paid to the appropriate mortgagee(s), as their interests may appear, for application to the appropriate mortgage indebtedness and the excess, if any, shall be allocated among the Unit Owners whose Units were affected by the applicable Casualty, up to the amount of the insured loss sustained by each such Unit Owner as determined under the provisions of the applicable insurance policies, if adequate insurance proceeds are not otherwise available pursuant to such Unit Owner(s)' insurance policies; provided, that (i) losses to Common Elements shall be allocated among the Unit Owners in proportion to their respective Percentage Shares and, (ii) losses to Shared Components Owner shall be allocated between the Unit Owners in proportion to their Allocated Interests. 11.7 Remedies. In the event a Unit Owner or Unit Owners elect or are obligated to Restore all or any part of the Condominium Property, or to Restore the minimum of Condominium Property, as required by Sections 11.2 and 11.3, but fail(s) to do so pursuant to the requirements of this Section 11 within a commercially reasonable time following the Casualty (or as to a Casualty governed by subsection 11.4, within sixty (60) days following the Anticipated Completion Date), the other Unit Owners and/or the Association shall have the right and power to effect the Restoration of the damaged Unit(s) and any Common Elements to the minimum extent required under Sections 11.2 and 11.3. The other Unit Owners and/or Association, as applicable, shall not exercise its remedies unless the Unit Owners performing the Restoration have failed to provide the other Unit Owners and/or Association with adequate assurances that such Owner will commence or complete rebuilding, as applicable, as required by this Section 11 within thirty (30) days after notice from the other Unit Owners and/or Association. The other Unit Owners and/or the Association shall have access to all insurance proceeds as provided in this Section 11, in order to exercise its remedies. The other Unit Owners and/or Association shall be entitled to the appointment of a receiver or other court authorization in order to exercise its remedies. Any insurance proceeds remaining after the exercise of any remedies hereunder shall be distributed to the Unit Owner who failed to comply -39- with the provisions of this Section 11, or, if more than one Unit Owner, to the Unit Owners who failed to comply with the provisions of this Section 11, in proportion to their Percentage Shares, subject to any valid liens. 11.8 Construction Procedures. If repair and Restoration of any damaged or destroyed Units or Common Elements is required pursuant to the provisions of this Section 11, such repair and Restoration shall be commenced and pursued until completion in as timely a manner as practicable and shall be performed by reputable contractors experienced in the construction of structures similar to the Improvements to be reconstructed selected by the Responsible Insurance Party. Plans and specifications for such repair and Restoration shall be prepared by a reputable architect experienced in the design of high rise structures similar to the Improvements to be repaired or restored. Subject to the provisions of Sections 11.2 and 11.3, the plans and specifications shall provide for the Improvements to be rebuilt as nearly as comparable and as commercially practical to the Improvements, as constructed prior to the damage, unless prohibited by Law or unless the Unit Owners unanimously vote otherwise, subject to the approval of all Mortgagees. The Responsible Insurance Party shall obtain builder's risk insurance during any period of reconstruction in such amount as is prudent under the circumstances and shall provide the Insurance Trustee, the Responsible Insurance Parry and the other Unit Owners with evidence of such coverage. The contractor and all subcontractors shall carry insurance in such types and amounts as the Responsible Insurance Party may determine in its reasonable discretion and shall provide the Insurance Trustee and the Association with certificates of insurance evidencing such insurance and naming the Responsible Insurance Party , the Association and the other Unit Owners as additional insureds. Any and all funds deposited with the Insurance Trustee shall be subject to such limitations on disbursement as may be reasonably required by the Insurance Trustee and which meet the requirements customarily imposed by prudent institutional mortgage lenders for disbursements of funds for construction, including, without limitation, draw requests certified by the applicable Unit Owner, general contractor, and project architect (including certification from the architect of the stage of completion under each contract and subcontract), retainage of funds in accordance with prevailing construction practices, progressive lien waivers submitted by the contractor and subcontractors, continuing evidence of the availability of sufficient funds to complete the restoration, and satisfactory date-downs of title at the time of each disbursement. The provisions of this Section 11.8 may be enforced by any Unit Owner or the Association. 12. Condemnation. 12.1 In General. If any portion of the Condominium Property shall be affected by any Taking, each Unit Owner affected thereby and the Association shall be entitled to notice of such Taking and to participate in the proceedings incident thereto. Any awards made in connection with such proceedings shall, to the extent possible, specifically allocate the awards between the affected Units and the affected Common Elements, and shall be collected, applied, and/or distributed in accordance with the following provisions, subject to the contrary provisions of any final order (after conclusion of any appeals or expiration of any appeal periods) entered in the applicable judicial proceedings with respect to such Taking. 12.2 Total Taking. If a Unit is acquired in its entirety by a Taking, or if part of a Unit is acquired by a Taking leaving the Unit Owner with a remnant which cannot practically or lawfully be Restored to a -40- complete architectural structure or structures that can economically be used for a purpose permitted by this Declaration, the provisions of this Section 12.2 will control. (a) (In any case in which all Units are affected by a Taking to the extent described immediately above, the Unit Owners may elect to terminate the condominium form of ownership in accordance with the provisions of Section 15 which provisions shall govern such termination. (b) Where the Unit Owners do not so elect to terminate the condominium form of ownership, the award payable for the Taking of each Unit and the award payable for the Taking of any Common Elements shall (i) first, be applied to the Restoration of Common Elements and Shared Components if and to the extent necessary to permit the Restoration and use of the Units that are being Restored in whole or in part notwithstanding the occurrence of such Taking, in accordance with the provisions of Section 11.2, (ii) second, be applied to any remnant of the Unit affected by such Taking so as to cause such remnant to comply with the provisions of Section 11.2, and (iii) third, be paid to the Unit Owner(s) of the affected Unit(s), with the award for the Taking of a Unit being payable entirely to the Owner of such Unit and the award for the Taking of Common Elements being payable to the Unit Owners in proportion to their Percentage Shares; provided, that to the extent required by any mortgage on any Unit, any proceeds under Clause (iii) shall be paid to the appropriate mortgagee(s), as their interests may appear, for application to the appropriate mortgage indebtedness and the excess, if any, shall be paid to the appropriate Unit Owners. Awards for the Taking of a Shared Component shall be payable to the Unit Owners in accordance with their respective Allocated Interests. (c) If, by reason of a Taking, a Unit ceases to be a part of the Condominium Property and/or ceases to be used in a manner consistent with this Declaration, then, upon acquisition of such Unit by the condemning authority, the entire Percentage Share, and all obligations for contribution to Common Expenses and other costs and expenses allocated to such Unit, shall be automatically reallocated to the remaining Unit(s) in proportion to the respective Percentage Share before the taking, and the Association shall promptly prepare, execute, and record an amendment to the Declaration reflecting such reallocations. Any remnant of a Unit remaining within the Condominium Property after a part of a Unit is taken under this subsection shall thereafter be a Common Element. 12.3 Partial Taking. If part of a Unit is acquired by eminent domain, other than under the circumstances contemplated by Section 12.2, this Section 12.3 will control. (a) The provisions of Section 11 shall be applicable in substantially the same manner as if loss resulted from a Casualty rather than a Taking and the proceeds were insurance proceeds rather than awards arising from such Taking; provided, that in the case of a Taking, Restoration that a Unit Owner would be obligated to perform under Section 11 shall be limited in the case of a Taking by the fact that the Unit Owner or Unit Owners may no longer have title to or possession of portions of Units or Common Elements, and in such case the Unit Owners' obligations shall be limited to effecting such Restoration as shall be feasible in light of the effects of such Taking. -41- (b) Upon acquisition of a portion of any Unit by the condemning authority, (1) the Unit Owners' Percentage Shares (and their respective obligations for Common Expenses) shall be adjusted on the basis of the new floor area of the affected Unit(s) in accordance with the provisions of Section 5, and (2) the Unit Owner's Allocated Interests shall be prorata adjusted in accordance with the provisions of Section 5. 12.4 Limitation on Distribution After Taking. In no event shall the aggregate amount distributed to the affected Unit Owner(s) exceed the total amount of any award paid by the condemning authority with respect to any Taking. 13. Enforcement. 13.1 Compliance and Default. Declarant, during the time period it owns any of the Units, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree that each Unit Owner shall be governed by and shall comply with the terms of the Declaration and the rules and regulations adopted pursuant to the Declaration, as the Declaration and said rules and regulations may be amended from time to time, as provided in this Declaration. In the event a Unit Owner or its Permittee fails: (i) to maintain a Unit or fails to cause such Unit to be maintained in accordance with the requirements of this Declaration; or (ii) fails to observe and perform all the covenants and provisions of this Declaration and the rules and regulations, in the manner required by this Declaration, then, in addition to all other rights and remedies established or permitted by this Declaration, and subject to notice and reasonable cure rights established by the Board, (i) the Association shall have the right, subject to the provisions of Section 19.6 below hereof, to proceed in a court of equity to require performance and/or compliance, to impound any applicable funds, to sue in a court of law for damages, to assess the Unit Owner and the Unit for sums necessary to do whatever work is required to put the Unit Owner or Unit in compliance and to collect such Special Assessment and have a lien therefor as elsewhere provided. In addition, the Association shall have the right, for itself and its employees and agents, to enter the Unit and perform the necessary work to enforce compliance with the above provisions (by force, if necessary), without having committed a trespass or incurred any other liability to the Unit Owner; and/or (ii) subject to the provisions of Section 19.6, any Unit Owner may bring an action at law or in equity for damages, injunctive relief, or otherwise, in order to require performance and/or compliance with the Declaration and the rules and regulations (all as amended from time to time, in accordance with the terms of this Declaration), and to collect for its losses and damages allowed under this Declaration and to have a lien therefor as provided in Section 6.1(d)(i) hereof, and/or to sue under the provisions of this Declaration or under the Act. 112 Dispute Resolution Plan. Notwithstanding anything herein contained to the contrary, if this Declaration calls for the approval, consent, or acknowledgement of a Unit Owner with respect to any matter or action to be taken by any other Unit Owner(s), and such requested approval, consent, or acknowledgement is not given, or if a dispute arises among Unit Owners or any Unit Owner and the Association, then, such dispute shall be submitted in writing by the aggrieved Unit Owner to the Board of Directors for resolution, with a copy to the other Unit Owners. If, within five (5) business days, the Board of Directors is not able to unanimously agree upon the resolution of such dispute, and such five (5) day period is not extended by mutual agreement of the Unit Owners, then the Board of Directors shall take the following action: -42- (a) If the matter in dispute can be reduced to monetary terms, and such monetary terms are less than $500,000.00, the Board of Directors may select and rely upon one person, meeting the qualifications set forth in subparagraph (d) below, to resolve such dispute. If, within three (3) business days, the Board is unable to unanimously agree upon one person to resolve such dispute then: (i) within three (3) business days following their failure to select an individual, the members of the Board of Directors designated by the Retail Unit A Owner shall appoint one (1) representative (meeting the qualifications of subparagraph (d)) and the members of the Board of Directors designated by the Parking Unit Owner shall appoint one (1) representative (meeting the qualifications of subparagraph (d) below); (ii) within three (3) business days of their collective selection, the two representatives selected by the Directors shall select a third representative (meeting such standards); and, (iii) the three representatives shall meet within three (3) business days of their collective appointment (or at such reasonable time thereafter as a majority of said representatives may agree upon) to decide the disputed issue. If the Directors representing one Unit shall fail to timely appoint a representative, the Directors representing the other Units may appoint such representative. The disputed issue shall be resolved by not less than a majority vote of the representatives, and any fees or expenses incurred by these representatives in connection with the dispute resolution shall be borne equally by both Unit Owners. The representative(s) shall be discharged by the Directors as soon as a decision has been reached. (b) If the matter in dispute can be reduced to monetary terms, and such monetary terms are $500,000.00 or greater, the dispute shall be promptly submitted by the Directors for binding arbitration in accordance with the Florida Arbitration Code (Florida Statutes Chapter 682) for decision by a panel of not less than three arbitrators. (c) If the matter in dispute cannot be reduced to monetary terms, the Directors may mutually agree to use one individual or the three-representative panel process described in subparagraph (a) above; provided, however, if such agreement as to the choice of one individual or a three-member panel cannot be mutually reached by the Directors within three (3) business days, then the matter in dispute shall be submitted to formal arbitration under the Florida Arbitration Code as described in subparagraph (b) above. (d) The individual, representatives, or arbitrators selected in accordance with this Section 13.2 shall be professionals or experts in the substantive area in which the dispute has arisen. For example; if the dispute arises from an engineering issue, the Directors shall select the appropriate professional engineer(s) (i.e. civil, structural, mechanical, or electrical); if the matter involves business management, building operating expenses, etc., the Directors shall select a past officer(s) of the local building owners and managers association. Such examples are used by way of illustration and not by way of limitation concerning the type of professional and/or expert to be selected by the Directors to resolve disputes in accordance with this Section. (e) Declarant, during the time period it owns its Unit, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree to be bound by the decision of such representative(s) or arbitration -43- once the appropriate resolution procedure is instituted, and each Unit owner shall immediately comply with decisions of such representative(s) or arbitration. (f) Notwithstanding anything in this Section 13.2 to the contrary, the dispute resolution procedures set forth herein are not intended to resolve breach of covenants, provisions, and obligations of the parties under this Declaration, but are intended to provide a mechanism for the resolution of differences when good faith attempts by the Unit Owners or the Directors of the Association to resolve disputes have resulted in impasse. 13.3 Costs and Attorneys' Fees. In any proceeding arising under this Declaration, the prevailing party shall be entitled to recover the costs of the proceeding, as well as reasonable attorneys' fees before and at trial, on appeal, in bankruptcy and in post judgment collection, as may be awarded by the court. 13.4 No Waiver of Rights. The failure of the Association or any Unit Owner to enforce any covenant, restriction or other provision of the Condominium Act, this Declaration and/or the rules and regulations shall not constitute a waiver of the right to do so thereafter. 14. Amendments. 14.1 Amendment. Except as elsewhere provided herein, amendments may be effected as follows: (a) By The Association. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which a proposed amendment is to be considered. A resolution for the adoption of a proposed amendment may be proposed either by a majority of the Board of Directors of the Association or by not less than one- third (1/3) of the Unit Owners. Except as elsewhere provided, approvals must be by an affirmative vote representing four fifths (4/5ths) of the voting interests of all Unit Owners. No amendment shall be effective unless each mortgagee shall join in the execution of such amendment. (b) Material Amendments. Unless otherwise provided specifically to the contrary in this Declaration, no amendment shall change the configuration or size of any Unit in any material fashion, materially alter or modify the appurtenances to any Unit, change the voting requirements (as set forth in Section 5.3 hereof) or change the percentage by which the Owner of a Unit shares the Common Expenses and owns the Common Elements and Common Surplus (any such change or alteration being a "Material Amendment"), unless the record Owner(s) thereof shall join in the execution of the amendment and the amendment is otherwise approved by an affirmative vote representing four fifths (4/5ths) of the voting interests of all Unit Owners. The acquisition of property by the Association, material alterations or substantial additions to such property or the Common Elements by the Association or to the Shared Components by a Responsible Unit Owner, if in accordance with the provisions of this Declaration, shall not be deemed to constitute a material alteration or modification of the appurtenances of the Units, and accordingly, shall not constitute a Material Amendment. (c) By or Affecting the Declarant. Notwithstanding anything herein contained to the contrary, during the time the Declarant has the right to elect a majority of the Board of Directors of the Association, this Declaration, or its exhibits, may be amended by the Declarant alone, -44- without requiring the consent of any other party, to effect any change whatsoever, except for an amendment: (a) to permit time-share estates (which must be approved, if at all, by all Unit Owners and mortgagees on Units); or (b) to effect a "Material Amendment which must be approved, if at all, in the manner set forth in Subsection 14.1(b) above. The unilateral amendment right set forth herein shall include, without limitation, the right to correct scrivener's errors. No amendment may be adopted (whether to this Declaration or any of the Exhibits hereto) which would eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits, privileges or priorities granted or reserved to the Declarant, without the prior written consent of the Declarant in each instance. 14.2 Execution and Recording. An amendment shall be evidenced by a certificate of the Association, executed either by the President of the Association or by the Owner(s) voting in favor of the amendment provided they have sufficient voting interests to adopt the amendment, and shall include recording data identifying the Declaration and shall be executed with the same formalities required for the execution of a deed. An amendment of the Declaration is effective when the applicable instrument is properly recorded in the public records of the County. No provision of this Declaration shall be revised or amended by reference to its title or number only. Proposals to amend existing provisions of this Declaration shall contain the full text of the provision to be amended; new words shall be inserted in the text underlined; and words to be deleted shall be lined through with hyphens. However, if the proposed change is so extensive that this procedure would hinder, rather than assist, the understanding of the proposed amendment, it is not necessary to use underlining and hyphens as indicators of words added or deleted, but, instead, a notation must be inserted immediately preceding the proposed amendment in substantially the following language: "Substantial rewording of Declaration. See provision ... for present text." Nonmaterial errors or omissions in the amendment process shall not invalidate an otherwise property adopted amendment. 15. Termination of Condominium. Except as otherwise provided by the Act, the Condominium shall continue until terminated by casualty loss, condemnation or eminent domain, as more particularly provided in this Declaration, or (iii) such time as withdrawal of the Condominium Property from the provisions of the Act is authorized by a vote of Owners owning representing all of the total Voting Interests and all mortgagees of all Units. In the event such withdrawal is authorized as aforesaid, the Condominium Property shall be subject to an action for partition by any Unit Owner, mortgagee or lienor as if owned in common in which event the net proceeds of the partition sale shall be divided among all Unit Owners in proportion to their respective interests in the Common Elements, provided, however, that no payment shall be made to a Unit Owner until there has first been paid off, out of his share of such net proceeds, all mortgages and liens on his Unit in the order of their priority. The termination of the Condominium, as aforesaid, shall be evidenced by a certificate of the Association executed by its President and Secretary, certifying as to the basis of the termination and said certificate shall be recorded among the public records of the County. 16. Additional Rights of Mortgagees and Others. 16.1 Availability of Association Documents. The Association shall have current and updated copies of the following available for inspection by Mortgagees during normal business hours or under other reasonable circumstances as determined by the Board: this Declaration; (c) the Articles; (d) the By-Laws; (e) the rules and regulations of the Association; and (f) the books, records and financial statements of the Association. -45- 16.2 Notices. Any holder, insurer or guarantor of a mortgage on a Unit shall have, if first requested in writing from the Association, the right to timely written notice of: (a) any condemnation or casualty loss affecting a material portion of the Condominium and/or Association Property or the affected mortgaged Unit; (b) any notice of default given by the Association to the Owner of the affected mortgaged Unit; (c) any notice of default given by a Responsible Unit Owner to the Owner of the affected mortgaged Unit; (d) any notice of default given to a Responsible Unit Owner of an affected mortgaged Unit; (e) a sixty (60) day delinquency in the payment of the Assessments on a mortgaged Unit; (f) the occurrence of a lapse, cancellation or material modification of any insurance policy maintained by the Association; (g) any proposed action which requires the consent of a specified number of mortgage holders. 17, Covenant Running With the Land. All provisions of this Declaration, the Articles, By-Laws and applicable rules and regulations of the Association, shall, to the extent applicable and unless otherwise expressly herein or therein provided to the contrary, be perpetual and be construed to be covenants running with the Land and with every part thereof and interest therein, and all of the provisions hereof and thereof shall be binding upon and inure to the benefit of the Declarant and subsequent owner(s) of the Land or any part thereof, or interest therein, and their respective heirs, personal representatives, successors and assigns, but the same are not intended to create nor shall they be construed as creating any rights in or for the benefit of the general public. All present and future Unit Owners, tenants and occupants of Units shall be subject to and shall comply with the provisions of this Declaration, the Articles, By-Laws and applicable rules and regulations, all as they may be amended from time to time. The acceptance of a deed or conveyance, or the entering into of a lease, or the entering into occupancy of any Unit, shall constitute an adoption and ratification of the provisions of this Declaration, and the Articles, By-Laws and applicable rules and regulations of the Association, all as they may be amended from time to time, including, but not limited to, a ratification of any appointments of attomeys-in-fact contained herein. 18. Disclaimer of Warranties. Declarant hereby disclaims any and all express or implied warranties as to design, construction, sound transmission, furnishing and equipping of the Condominium Property, except only those set forth in section 718.203 of the Act, to the extent applicable and to the extent that same have not expired by their terms. As to such warranties which cannot be disclaimed, and to other claims, if any, which can be made as to the aforesaid matters, all incidental and consequential damages arising therefrom are hereby disclaimed. All unit owners, by virtue of acceptance of title to their respective units (whether from the Declarant or another party) shall be deemed to have automatically waived all of the aforesaid disclaimed warranties and incidental and consequential damages. -46- 19. Additional Provisions. 19.1 Notices. All notices to the Association required or desired hereunder or under the By-Laws of the Association shall be sent by certified mail (return receipt requested) or recognized ovemight courier service to the Association in care of its office at the Condominium, or to such other address as the Association may hereafter designate from time to time by notice in writing to all Unit Owners. Except as provided specifically in the Act, all notices to any Unit Owner shall be sent by certified mail or recognized ovemight courier service to the Condominium address of such Unit Owner, or such other address as may have been designated by him from time to time, in writing, to the Association. All notices to mortgagees of Units shall be sent by first class mail to their respective addresses, or such other address as may be designated by them from time to time, in writing to the Association. All notices shall be deemed to have been given when mailed in a postage prepaid sealed wrapper, except notices of a change of address, which shall be deemed to have been given when received, or 5 business days after proper mailing, whichever shall first occur. 19.2 Mortgagees. Anything herein to the contrary notwithstanding, the Association shall not be responsible to any mortgagee or lienor of any Unit hereunder, and may assume the Unit is free of any such mortgages or liens, unless written notice of the existence of such mortgage or lien is received by the Association. 19.3 Exhibits. There is hereby incorporated in this Declaration all materials contained in the Exhibits annexed hereto, except that as to such Exhibits, any conflicting provisions set forth therein as to their amendment, modification, enforcement and other matters shall control over those hereof. 19.4 Signature of President and Secretary. Wherever the signature of the President of the Association is required hereunder, the signature of a vice-president may be substituted therefor, and wherever the signature of the Secretary of the Association is required hereunder, the signature of an assistant secretary may be substituted therefor, provided that the same person may not execute any single instrument on behalf of the Association in two separate capacities. 19.5 Goveming Law. Should any dispute or litigation arise between any of the parties whose rights or duties are affected or determined by this Declaration, the Exhibits annexed hereto or applicable rules and regulations adopted pursuant to such documents, as the same may be amended from time to time, said dispute or litigation shall be governed by the laws of the State of Florida. 19.6 Limitation on Liability. Notwithstanding anything contained in this Declaration to the contrary, except with respect to payment of Common Expenses and Allocated Expenses, Unit Owners shall not have any personal liability for any obligations set forth in this Declaration. The recourse of an aggrieved party with respect to any breach of a Unit Owner of any obligations set forth in this Declaration shall be limited to obtaining specific performance, injunctive relief or other equitable relief, filing and foreclosing upon the liens described in this Declaration, and/or the procurement of a judgment for damages against a Unit Owner provided that the judgment is satisfied solely by foreclosure of such Owner's Unit in accordance with applicable law. 19.7 Severabili . The invalidity in whole or in part of any covenant or restriction, or any section, subsection, sentence, paragraph, clause, phrase or word, or other provision of this Declaration, the Exhibits annexed hereto, or applicable rules and regulations adopted pursuant to such documents, as the same may be amended from time to time, shall not affect the validity of the remaining portions thereof which shall remain in full force and effect. -47- 19.8 Estoppel Certificates. Each Unit Owner or the Association, as the case may be, shall, from time to time, within ten (10) days after receipt of written request from any other Unit Owner or Mortgagee execute, acknowledge and deliver to such other Unit Owner, Mortgagee, or their designee a certificate ("Estoppel Certificate") stating to the best of their knowledge, without inquiry: (a) That the terms and provisions of this Declaration are unmodified and are in full force and effect, or, if modified, identifying any such modifications; (b) Whether there is any existing default hereunder by any other Unit Owners or the Association and, if so, specifying the nature and extent thereof; (c) Whether there are any sums which the Unit Owner executing such Estoppel Certificate is entitled to receive or demand from any of the other Unit Owners, and if there is any such sum, specifying the nature and amount thereof and method of computation; (d) In the case of the Association, confirmation of the current budget, and whether there are any outstanding, unpaid Assessments or Charges, or currently proposed Assessments or Charges; (e) Whether the Unit Owner or Association has performed or is performing work, the cost of which is chargeable in whole or in part to any of the other Unit Owners under the provisions hereof, but has not yet been charged to any such Unit Owner, and if there be any such work, specifying the nature and extent thereof; (f) The nature and extent of any set-offs, claims, counterclaims or defenses then being asserted, or otherwise known by a Unit Owner or the Association against the enforcement of any other Unit Owner's obligations hereunder; (g) Whether any Unit Owner has requested that a matter be submitted to arbitration and the nature of any arbitration proceeding or finding made within ninety (90) days preceding the date of the Estoppel Certificate; (h) Such other matters as may be reasonably requested. 19.9 Ratification. Each Unit Owner, by reason of having acquired ownership (whether by purchase, gift, operation of law or otherwise), and each occupant of a Unit, by reason of his occupancy, shall be deemed to have acknowledged and agreed that all of the provisions of this Declaration, and the Articles and By-Laws of the Association, and applicable rules and regulations, are fair and reasonable in all material respects. 19.10 Gender; Plurality. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be deemed to include all or no genders. 19.11 Indemnification: Waivers of Claims. (a) Indemnification. To the extent not covered by the insurance required under Section 13 above, each Unit Owner, by taking title to a Unit, is hereby deemed to covenant to indemnify, defend, and hold harmless the Association, each other Unit Owner, its Mortgagee(s), and their respective partners, officers, directors, shareholders, members, managers, employees, and agents (each an "Indemnified Party") from and against any and all claims, actions, damages, liabilities and demands asserted by third persons (other than Indemnified Parties), including those for loss of life, personal injury and property damage, occasioned by or arising directly or indirectly, out of or in connection with the use, occupancy, operation or ownership (as applicable) by such Unit Owner of its Unit, Common Elements, or easement areas, or the failure of such Unit Owner to perform any obligation with respect to those Common Elements or easement areas which such Owner is required to operate, maintain, and/or repair under the terms of this Declaration, except with respect to Laws pertaining to environmental matters. An Indemnified Party shall provide the indemnifying Unit Owner (the "Indemnifying Owner") with prompt notice of any claim or other matter for which the Indemnified Party may seek indemnity under this -48- paragraph; provided, however, the failure to provide such notice shall relieve the Indemnifying Owner of its indemnity obligations only to the extent that the Indemnifying Owner is damaged or prejudiced by such failure. The Indemnifying Owner shall defend the Indemnified Party with respect to any such claim at the Indemnifying Owner's expense, with attorneys selected by the Indemnifying Owner who may also represent the Indemnifying Owner. If the Indemnified Party retains separate attorneys for its defense, it shall do so at its own expense. The Indemnifying Owner shall have sole right to conduct such defense (including decisions concerning the forum) and settle any claim, suit, proceeding, or other matter brought by the third party, so long as the Indemnified Party is released from any liability with respect to such claim. The Indemnified Party shall cooperate with the Indemnifying owner in the defense of any claim, including providing documents and witnesses. (b) Waivers of Claims. The Association and each Unit Owner, for itself and its Permittees, successors and assigns, hereby waives, as against all other Unit Owners and their respective Mortgagees, tenants, managers, operators, Permittees, and any other person claiming by, through, or under any Unit Owner, and any director, officer, constituent partner, member, shareholder, agent, or employee of any the foregoing, all claims arising from any loss, damage, or liability to the extent that (i) such claims are covered by any insurance policy maintained by the Association or any Unit Owner pursuant to this Declaration and (ii) such waiver either (x) is expressly contemplated by such policy (including any policy providing for a waiver of the insurer's subrogation rights) or (y) does not invalidate the applicable policy or any coverages provided thereby. It is the express intention of this provision that, where possible, the Unit Owners and the Association desire to allocate the risks of loss or liability to the insurers under the insurance policies provided for herein, and accordingly the foregoing waivers should be liberally construed and applied notwithstanding statutory provisions or judicial principles disfavoring waivers of Claims for future conduct. Each Unit Owner and the Association agrees to include in each lease, property management agreement, Retail management or operating agreement, concession license, or other instrument or agreement entered into after the date hereof by which possession or use of any Unit or any part of the Common Elements is conveyed or granted, a waiver of claims provision consistent with the provisions of this Subsection. 19.12 Adiustment of Dollar Amounts. In every instance where this Declaration refers to a specific dollar amount, such amount shall be increased on every fifth anniversary of the recording of this Declaration, to reflect the increase, if any, in the consumer price index ("CPI"). This adjustment shall be made by multiplying each dollar amount by a fraction, the denominator of which is the CPI published for the month in which this Declaration is recorded, and the numerator of which is the CPI published for the most recent month prior to each fifth anniversary of the recording. The CPI used for this purpose is the U.S. Department of Labor's Bureau of Labor Statistics Consumer Price Index - All Items, Miami, Florida (1982-1984 =100) or the successor thereto which is a comparable measure of inflation. The Association shall be responsible to make such adjustments and notify all Unit Owners. 19.13 Captions. The captions herein and in the Exhibits annexed hereto are inserted only as a matter of convenience and for ease of reference and in no way define or limit the scope of the particular document or any provision thereof. -49- IN WITNESS WHEREOF, the Declarant has caused this Declaration to be duly executed and its corporate seal to be hereunto affixed as of the day of , 20-. Witnessed by: Name: L.O.M., Inc., a Florida corporation By: Name: Title: Name: STATE OF SS: COUNTY OF ) The foregoing Declaration was acknowledged before me, of L.O.M., Inc., corporation. He/she is personally known to me or has produced (Corporate Seal) this _ day of , by a Florida corporation on behalf of said as identification. Name: My Commission Expires: Notary Public, State of Florida Commission No.: (Notarial Seal) -50- JOINDER SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit, hereby agrees to accept all the benefits and all of the duties, responsibilities, obligations and burdens imposed upon it by the provisions of this Declaration and Exhibits attached hereto. IN WITNESS WHEREOF, SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC. has caused these presents to be signed in its name by its proper officer and its corporate seal to be affixed this day of , 200_. Witnessed by: SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit Name: Name: STATE OF FLORIDA ) SS: COUNTY OF PINELLAS ) By: Name: Title: [CORPORATE SEAL] The foregoing joinder was acknowledged before me this day of , by as President of SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a Florida corporation not-for-profit, on behalf of said corporation. He/she is personally known to me or has produced as identification. Name: My Commission Expires: Notary Public, State of Florida Commission No.: (Notarial Seal) -51- F.XHIRTT 1 LOM 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 FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the are of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82'1 5'44"E a distance of 35.00 feet to the Point of Beginning. EXHIBIT "2" Survey Plot Plans To be supplemented -53- EXHIBIT "3" Allocated Interests The Allocated Interest shall vary depending on the nature of the Allocated Expense. In the event of any dispute as to the proper categorization of the Allocated Expense, either party shall have the right to implement the Dispute Resolution procedures in accordance with Section 13.2 of this Declaration. The Allocated Interests are as follows: Allocated Expense: Allocated Interest Allocated Interest of Allocated Interest of of Retail Unit A Retail Unit B Parkin Unit Insurance 35% 15% 50% Landscaping: Off-site Perimeter 75% 25% 0% sidewalks and landscaping 0% Central Pass-thru 75% 25% Cleaning: Exterior and Marble Floor 45% 45% 10% Trash Removal & Compactor 45% 45% 10% Recycling 50% 50% 0% Window Cleaning 70% 30% 0% Maintenance and Repairs: Responsible for Responsible for 100% Responsible for 100% Fire/Emergency Systems 100% of it's own of it's own separate of it's own separate Radios and Repeater separate systems - systems systems Stairways HVAC Other Maintenance and Repairs Utilities and Services: Responsible for Responsible for 100% Responsible for 100% Electricity 100% of it's own of it's own separate of it's own separate Water and Sewer separate systems systems systems Alarm Monitoring Extermination Drainage (and injection wells) -54- RoofMater Resistant Membranes 117th shared 1/71h shared between 6/7th between the Retail the Retail Units in Units in accordance accordance with their with their respective respective percentages of percentages of ownership of the ownership of the Common Elements Common Elements Common Parking Facilities (drives, 117th shared 1/7th shared between 6/7th ramps, access control systems) between the Retail the Retail Units in Units in accordance accordance with their with their respective respective percentages of percentages of ownership of the ownership of the Common Elements Common Elements Life Safety Systems Responsible for Responsible for 100% Responsible for 100% 100% of it's own of it's own separate of it's own separate separate systems systems systems Exterior Lighting 35% 15% 50% -55- Exhibit "4" BY-LAWS OF SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., A corporation not for profit organized under the laws of the State of Florida Identi . These are the By-Laws of SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., (the "Association"), a corporation not for profit incorporated under the laws of the State of Florida, and organized for the purposes set forth in its Articles of Incorporation. 1.1 Fiscal Year. The fiscal year of the Association shall be the twelve month period commencing January 1 st and terminating December 31 st of each year. 1.2 Seal. The seal of the Association shall bear the name of the corporation, the word "Florida", the words "Corporation Not for Profit", and the year of incorporation. Definitions. For convenience, these By-Laws shall be referred to as the "By-Laws" and the Articles of Incorporation of the Association as the "Articles". The other terms used in these By-Laws shall have the same definitions and meanings as those set forth in the Declaration for SURF STYLE CLEARWATER BEACH CONDOMINIUM, unless herein provided to the contrary, or unless the context otherwise requires. 3. Members. 3.1 Annual M2 "in . The annual members' meeting shall be held on the date, at the place and at the time determined by the Board of Directors from time to time, provided that there shall be an annual meeting every calendar year and the location of the annual meeting shall be within 45 miles of the Condominium Property. The purpose of the meeting shall be, except as provided herein to the contrary, to elect Directors, and to transact any other business authorized to be transacted by the members, or as stated in the notice of the meeting sent to Unit Owners in advance thereof. Unless changed by the Board of Directors, the first annual meeting shall be held in the month of October following the year in which the Declaration is filed. 3.2 Special Meetings. Special members' meetings shall be held at such places as provided herein for annual meetings, and may be called by the President or by a majority of the Board of Directors of the Association, and must be called by the President or Secretary upon receipt of a written request from a majority of the members of the Association. The business conducted at a special meeting shall be limited to those agenda items specifically identified in the notice of the meeting. Special meetings may also be called by Unit Owners in the manner provided for in the Act. Notwithstanding the foregoing: (i) as to special meetings regarding the adoption of the Condominium's estimated operating budget, reference should be made to Section 718.111(2)(e), Florida Statutes; and (ii) as to special meetings regarding recall of Board members, reference should be made to Section 718.111(2)6), Florida Statutes. 3.3 Partici ation b Unit Owners. Members shall have the right to speak at the annual and special meetings of the Members, committee meetings and Board meetings with reference to all designated agenda items. 3.4 Notice of Meetin : Waiver of Notice. Notice of a meeting of members (annual or special), stating the time and place and the purpose(s) for which the meeting is called, shall be given by the President or Secretary. A copy of the notice shall be posted at a conspicuous place on the Condominium Property. The notice of an annual or special meeting shall be hand delivered, electronically transmitted or sent by regular mail to each Unit Owner, unless the Unit Owner waives in writing the right to receive notice of the annual meeting by mail. The delivery or mailing shall be to the address of the member as last furnished to the Association by the Unit Owner. However, if a Unit is owned by more than one person, the Association shall provide notice, for meetings and all other purposes, to that one address initially identified for that purpose by the Declarant and thereafter as one or more of the Owners of the Unit shall so advise the Association in writing, or if no address is given or if the Owners disagree, notice shall be sent to the address for the Owner as set forth on the deed of the Unit. The posting and mailing of the notice for either special or annual meetings, which notice shall incorporate an identification of agenda items, shall be effected not less than fourteen (14) continuous days. The Board shall adopt by rule, and give notice to Unit Owners of, a specific location on the Condominium Property upon which all notices of members' meetings shall be posted. In lieu of or in addition to the physical posting of notice of any meeting of the Unit Owners on the Condominium Property, the Association may, by reasonable rule, adopt a procedure for conspicuously posting and repeatedly broadcasting the notice and the agenda on a closed-circuit cable television system serving the Association, if any. However, if broadcast notice is used in lieu of a notice posted physically on the Condominium Property, the notice and agenda must be broadcast at least four times every broadcast hour of each day that a posted notice is otherwise required. When broadcast notice is provided, the notice and agenda must be broadcast in a manner and for a sufficient continuous length of time so as to allow an average reader to observe the notice and read and comprehend the entire content of the notice and the agenda. Notice of specific meetings may be waived before or after the meeting and the attendance of any member (or person authorized to vote for such member), either in person or by proxy, shall constitute such member's waiver of notice of such meeting, and waiver of any and all objections to the place of the meeting, the time of the meeting or the manner in which it has been called or convened, except when his (or his authorized representative's) attendance is for the express purpose of objecting at the beginning of the meeting to the transaction of business because the meeting is not lawfully called. An officer of the Association, or the manager or other person providing notice of the meeting shall provide an affidavit or United States Postal Service certificate of mailing, to be included in the official records of the Association, affirming that notices of meetings were posted and mailed or hand delivered in accordance with this Section and Section 718.112(2)(d) of the Act, to each Unit Owner at the appropriate address for such Unit Owner. No other proof of notice of a meeting shall be required. 3.5 Quorum. Except as otherwise provided by law, a quorum at Members' meetings shall be attained by the presence, either in person or by proxy (limited or general), of all Members of the Association. The acts approved by all of the voters present at a meeting at which a quorum is present shall constitute the acts of the Members. 3.6 Votinu. (a) Number of Votes. In any meeting of members, the Owners of each Unit shall be entitled to cast the number of votes designated for their Unit as set forth in the Articles. The vote of a Unit shall not be divisible. By-Laws -2- (b) Voting Member. If a Unit is owned by one person, that person's right to vote shall be established by the roster of members. If a Unit is owned by more than one person, those persons (including husbands and wives) shall decide among themselves as to who shall cast the vote of the Unit. In the event that those persons cannot so decide, no vote shall be cast. A person casting a vote for a Unit shall be presumed to have the authority to do so unless the President or the Board of Directors is otherwise notified. If a Unit is owned by a corporation, partnership, limited liability company, trust or any other lawful entity, the person entitled to cast the vote for the Unit shall be designated by a certificate signed by persons having lawful authority to bind the corporation, partnership, limited liability company, trust or other lawful entity and filed with the Secretary of the Association. Such person need not be a Unit Owner. Those certificates shall be valid until revoked or until superseded by a subsequent certificate or until a change in the ownership of the Unit concerned. A certificate designating the person entitled to cast the vote for a Unit may be revoked by any record owner of an undivided interest in the Unit_ If a certificate designating the person entitled to cast the vote for a Unit for which such certificate is required is not on file or has been revoked, the vote attributable to such Unit shall not be considered in determining whether a quorum is present, nor for any other purpose, and the total number of authorized votes in the Association shall be reduced accordingly until such certificate is filed. 3.7 Proxies. Votes to be cast at meetings of the Association membership may be cast in person or by proxy. Except as specifically provided herein, Unit Owners may not vote by general proxy, but may vote by limited proxies substantially conforming to the limited proxy form approved by the Division. No voting interest or consent right allocated to a Unit owned by the Association shall be exercised or considered for any purpose, whether for a quorum, an election, or otherwise. Limited proxies shall be permitted to the extent permitted by the Act. No proxy, limited or general, shall be used in the election of Board members. General proxies may be used for other matters for which limited proxies are not required and may also be used in voting for nonsubstantive changes to items for which a limited proxy is required and given. A proxy may be made by any person entitled to vote, but shall only be valid for the specific meeting for which originally given and any lawful adjourned meetings thereof. In no event shall any proxy be valid for a period longer than 90 days after the date of the first meeting for which it was given. Every proxy shall be revocable at any time at the pleasure of the person executing it. A proxy must be in writing, signed by the person authorized to cast the vote for the Unit (as above described), name the person(s) voting by proxy and the person authorized to vote for such person(s) and filed with the Secretary before the appointed time of the meeting, or before the time to which the meeting is adjourned. Each proxy shall contain the date, time and place of the meeting for which it is given and, if a limited proxy, shall set forth the matters on which the proxy holder may vote and the manner in which the vote is to be cast. There shall be no limitation on the number of proxies which may be held by any person (including a designee of the Declarant). If a proxy expressly provides, any proxy holder may appoint, in writing, a substitute to act in its place. If such provision is not made, substitution is not permitted. 3.8 Adioumed Meetings. If any proposed meeting cannot be organized because a quorum has not been attained, the members who are present, either in person or by proxy, may adjourn the meeting from time to time until a quorum is present, provided notice of the newly scheduled meeting is given in the manner required for the giving of notice of a meeting. Except as required above, proxies given for the adjourned meeting shall be valid for the newly scheduled meeting unless revoked for reasons other than the new date of the meeting. By-Laws -3- 3.9 Order of Business. If a quorum has been attained, the order of business at annual members' meetings, and, if applicable, at other members' meetings, shall be: (a) Collect all ballots not yet cast; (b) Call to order by President; (c) Appointment by the President of a chairman of the meeting (who need not be a member or a director); (d) Appointment of inspectors of election; (e) Counting of Ballots for Election of Directors; (f) Proof of notice of the meeting or waiver of notice; (g) Reading of minutes; (h) Reports of officers; (i) Reports of committees; 0) Unfinished business; (k) New business; (1) Adjournment. Such order may be waived in whole or in part by direction of the chairman. 3.10 Minutes of Meetina. The minutes of all meetings of Unit Owners shall be kept in a book available for inspection by Unit Owners or their authorized representatives and Board members at any reasonable time. The Association shall retain these minutes for a period of not less than seven (7) years. 3.11 Action Without A Meeting. Anything to the contrary herein notwithstanding, to the extent lawful, any action required or which may be taken at any annual or special meeting of members, may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the members (or persons authorized to cast the vote of any such members as elsewhere herein set forth) having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting of members at which all members (or authorized persons) entitled to vote thereon were present and voted. In order to be effective, the action must be evidenced by one or more written consents describing the action taken, dated and signed by approving members having the requisite number of votes and entitled to vote on such action, and delivered to the Secretary of the Association, or other authorized agent of the Association. Written consent shall not be effective to take the corporate action referred to in the consent unless signed by members having the requisite number of votes necessary to authorize the action within sixty (60) days of the date of the earliest dated consent and delivered to the Association as aforesaid. Any written consent may be revoked prior to the date the Association receives the required number of consents to authorize the proposed action. A revocation is not effective unless in writing and until received by the Secretary of the Association, or other By-taws -4- authorized agent of the Association. Within ten (10) days after obtaining such authorization by written consent, notice must be given to members who have not consented in writing. The notice shall fairly summarize the material features of the authorized action. A consent signed in accordance with the foregoing has the effect of a meeting vote and may be described as such in any document. 4. Directors. 4.1 Membership. The affairs of the Association shall be governed by a Board of three (3) directors. Directors must be natural persons who are 18 years of age or older. Directors may not vote at Board meetings by proxy or by secret ballot. 4.2 Election of Directors. Election of Directors shall be held at the annual members' meeting, except as herein provided to the contrary and otherwise shall comply with the provisions set forth in the Articles and in the Act. 4.3 Organizational Meeting. The organizational meeting of newly-elected or appointed Directors shall be held within ten (10) days of their election or appointment. The directors calling the organizational meeting shall give at least three (3) days advance notice thereof, stating the time and place of the meeting. 4.4 Meetings. Meetings of the Board of Directors may be held at such time and place as shall be determined, from time to time, by a majority of the Directors. Meetings of the Board of Directors may be held by telephone conference, with those Directors attending by telephone counted toward the quorum requirement and may vote by telephone, provided that a telephone speaker must be used so that the conversation of those Directors attending by telephone may be heard by the Directors and any Unit Owners attending such meeting in person. Notice of meetings shall be given to each Director, personally or by mail, telephone or telegraph, and shall be transmitted at least three (3) days prior to the meeting. Meetings of the Board of Directors and any Committee thereof at which a quorum of the members of that Committee are present shall be open to all Unit Owners. 4.5 Waiver of Notice. Any Director may waive notice of a meeting before or after the meeting and that waiver shall be deemed equivalent to the due receipt by said Director of notice. Attendance by any Director at a meeting shall constitute a waiver of notice of such meeting, and a waiver of any and all objections to the place of the meeting, to the time of the meeting or the manner in which it has been called or convened, except when a Director states at the beginning of the meeting, or promptly upon arrival at the meeting, any objection to the transaction of affairs because the meeting is not lawfully called or convened. 4.6 Quorum. A quorum at Directors' meetings shall consist of the presence of all Directors. The acts approved by the unanimous vote of those present at a meeting at which a quorum is present shall constitute the acts of the Board of Directors. 4.7 Adjourned Meetings. If, at any proposed meeting of the Board of Directors, there is less than a quorum present, the majority of those present may adjourn the meeting from time to time until a quorum is present, provided notice of such newly scheduled meeting is given as required hereunder. At any newly scheduled meeting, any business that might have been transacted at the meeting as originally called may be transacted as long as notice of such business to be conducted at the rescheduled meeting is given, if required (e.g., with respect to budget adoption). By-Laws -5- 4.8 Joinder in Meeting b Approval of Minutes. The joinder of a Director in the action of a meeting by signing and concurring in the minutes of that meeting shall constitute the approval of that Director of the business conducted at the meeting, but such joinder shall not be used as a vote for or against any particular action taken and shall not allow the applicable Director to be counted as being present for purposes of quorum. 4.9 Presiding Officer. The presiding officer at the Directors' meetings shall be the President (who may, however, designate any other Unit Owner to preside). 4.10 Order of Business. If a quorum has been attained, the order of business at Directors' meetings shall be: (a) Proof of due notice of meeting; (b) Reading and disposal of any unapproved minutes; (c) Reports of officers and committees; (d) Election of officers; (e) Unfinished business; (f) New business; (g) Adjournment. Such order may be waived in whole or in part by direction of the presiding officer. 4.11 Minutes of Meetings. The minutes of all meetings of the Board of Directors shall be kept in a book available for inspection by Unit Owners, or their authorized representatives, and Board members at any reasonable time. The Association shall retain these minutes for a period of not less than seven years. 4.12 Committees. The Board may by resolution also create Committees and appoint persons to such Committees and vest in such Committees such powers and responsibilities as the Board shall deem advisable. 4.13 Proviso. Notwithstanding anything to the contrary contained in this Section 4.13 or otherwise, control of the Board shall be relinquished in accordance with the provisions of Section 718.301 of the Act (which is deemed incorporated herein). 4.14 Unanimity of Action. All actions of the Board of Directors, shall require unanimity of Directors. In the event, however, that the requisite unanimous vote is not obtained, the dissenting Director shall have the right to implement dispute resolution procedures in accordance with Section 13.2 of the Declaration. 5. Authori of the Board.. The Board of Directors shall have the powers and duties necessary for the administration of the affairs of the Condominium and may take all acts, through the proper officers of the Association, in executing such powers, except such acts which by law, the Declaration, the Articles or these By-Laws may not be delegated to the Board of Directors by the Unit Owners. By-Laws -6- 6. Officers. 6.1 Executive Officers. The executive officers of the Association shall be a President, a Vice- President, a Treasurer and a Secretary, all of whom shall be elected by the Board of Directors and who may be peremptorily removed at any meeting by concurrence of a majority of all of the Directors. The Board of Directors from time to time shall elect such other officers and designate their powers and duties as the Board shall deem necessary or appropriate to manage the affairs of the Association. 6.2 President. The President shall be the chief executive officer of the Association. He shall have all of the powers and duties that are usually vested in the office of president of an association. 6.3 Vice-President. The Vice-President shall exercise the powers and perform the duties of the President in the absence or disability of the President. He also shall assist the President and exercise such other powers and perform such other duties as are incident to the office of the vice president of an association and as may be required by the Directors or the President. 6.4 Secretary. The Secretary shall keep the minutes of all proceedings of the Directors and the members. The Secretary shall attend to the giving of all notices to the members and Directors and other notices required by law. The Secretary shall have custody of the seal of the Association and shall affix it to instruments requiring the seal when duly signed. The Secretary shall keep the records of the Association, except those of the Treasurer, and shall perform all other duties incident to the office of the secretary of an association and as may be required by the Directors or the President. 6.5 Treasurer. The Treasurer shall have custody of all property of the Association, including funds, securities and evidences of indebtedness. The Treasurer shall keep books of account for the Association in accordance with good accounting practices, which, together with substantiating papers, shall be made available to the Board of Directors for examination at reasonable times. The Treasurer shall submit a treasurer's report to the Board of Directors at reasonable intervals and shall perform all other duties incident to the office of treasurer and as may be required by the Directors or the President. All monies and other valuable effects shall be kept for the benefit of the Association in such depositories as may be designated by a majority of the Board of Directors. 7. Fiduciary Duty. The officers and directors of the Association, as well as any manager employed by the Association, have a fiduciary relationship to the Unit Owners. 8. Compensation. Neither Directors nor officers shall receive compensation for their services as such, but this provision shall not preclude the Board of Directors from employing a Director or officer as an employee of the Association, nor preclude contracting with a Director or officer for the management of the Condominium or for any other service to be supplied by such Director or officer. Directors and officers shall be compensated for all actual and proper out of pocket expenses relating to the proper discharge of their respective duties. Resignations. Any Director or officer may resign his post at any time by written resignation, delivered to the President or Secretary, which shall take effect upon its receipt unless a later date is specified in the resignation, in which event the resignation shall be effective from such date unless withdrawn. The acceptance of a resignation shall not be required to make it effective. 10. Roster of Unit Owners. Each Unit Owner shall file with the Association a copy of the deed or other document showing his ownership. The Association shall maintain such information. The Association may By-Laws -7- rely upon the accuracy of such information for all purposes until notified in writing of changes therein as provided above. Only Unit Owners of record on the date notice of any meeting requiring their vote is given shall be entitled to notice of and to vote at such meeting, unless prior to such meeting other Owners shall produce adequate evidence, as provided above, of their interest and shall waive in writing notice of such meeting. 11. Parliamentary Rules. Except when specifically or impliedly waived by the chairman of a meeting (either of members or directors), Robert's Rules of Order (latest edition) shall govern the conduct of the Association meetings when not in conflict with the Act, the Declaration, the Articles or these By-Laws; provided, however, that a strict or technical reading of said Robert's Rules shall not be made so as to frustrate the will of the persons properly participating in said meeting. 12. Amendments. These By-Laws may be amended in the same manner required for amendment to the Declaration. 13. Rules and Regulations. The Board of Directors may, from time to time, adopt, and thereafter modify, amend or add to such rules and regulations regarding the Common Elements, except that subsequent to the date control of the Board is turned over by the Declarant to Unit Owners other than the Declarant, Owners of a majority of the Units may overrule the Board with respect to any such modifications, amendments or additions. Copies of such modified, amended or additional rules and regulations shall be furnished by the Board of Directors to each affected Unit Owner not less than thirty (30) days prior to the effective date thereof. At no time may any rule or regulation be adopted which would prejudice the rights reserved to the Declarant. 14. Electronic Transmission. For purposes hereof, "electronic transmission" means any form of communication, not directly involving the physical transmission or transfer of paper, which creates a record that may be retained, retrieved, and reviewed by a recipient thereof and which may be directly reproduced in a comprehensible and legible paper form by such recipient through an automated process. Examples of electronic transmission include, but are not limited to, telegrams, facsimile transmissions of images, and text that is sent via electronic mail between computers. Notwithstanding the provision for electronic transmission of notices by the Association, same may be only be sent to Unit Owners that consent to receipt of Association notices by electronic transmission (and only for long as such consent remains in effect). Further, in no event may electronic transmission be used as a method of giving notice of a meeting called in whole or in part regarding the recall of a Director. 15. Construction. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be deemed to include all genders. To the extent not otherwise provided for or addressed in these By-Laws, the By-Laws shall be deemed to include the provisions of Section 718.112(2)(a) through (o) of the Act. 16. Captions. The captions herein are inserted only as a matter of convenience and for reference, and in no way define or limit the scope of these By-Laws or the intent of any provision hereof. By-Laws -8- The foregoing was adopted as the By-Laws of SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a corporation not for profit under the laws of the State of Florida, as of the day of , 20_. Approved: , President , Secretary By-Laws -9- Exhibit "5" ARTICLES OF INCORPORATION FOR SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC. The undersigned incorporator, for the purpose of forming a corporation not for profit pursuant to the laws of the State of Florida, hereby adopts the following Articles of Incorporation: ARTICLE I NAME The name of the corporation shall be SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC. For convenience, the corporation shall be referred to in this instrument as the "Association", these Articles of Incorporation as the "Articles", and the By-Laws of the Association as the "By-Laws". ARTICLE 2 OFFICE The principal office and mailing address of the Association shall be at 315 S. Gulfview Boulevard, Clearwater, Florida 33767, or at such other place as may be subsequently designated by the Board of Directors. All books and records of the Association shall be kept at its principal office or at such other place as may be permitted by the Act. ARTICLE 3 PURPOSE The purpose for which the Association is organized is to provide an entity pursuant to the Florida Condominium Act as it exists on the date hereof (the "Act") for the operation of that certain condominium located in Pinellas County, Florida, and known as SURF STYLE CLEARWATER BEACH CONDOMINIUM (the "Condominium"). MIA 180,800,532v7 1-29-10 ARTICLE 4 DEFINITIONS The terms used in these Articles shall have the same definitions and meanings as those set forth in the Declaration of the Condominium to be recorded in the Public Records of Pinellas County, Florida, unless herein provided to the contrary, or unless the context otherwise requires. ARTICLE 5 POWERS The powers of the Association shall include and be governed by the following: 5.1 General. The Association shall have all of the common-law and statutory powers of a corporation not for profit under the Laws of Florida, except as expressly limited or restricted by the terms of these Articles, the Declaration, the By-Laws or the Act. 5.2 Enumeration. The Association shall have all of the powers and duties set forth in the Act, except as limited by these Articles, the By-Laws and the Declaration (to the extent that they are not in conflict with the Act), and all of the powers and duties reasonably necessary to operate the Condominium pursuant to the Declaration and as more particularly described in the By-Laws, as they may be amended from time to time. 5.3 Association Property. All funds and the title to all properties acquired by the Association and their proceeds shall be held for the benefit and use of the members in accordance with the provisions of the Declaration, these Articles and the By-Laws. 5.4 Distribution of Income; Dissolution. The Association shall not pay a dividend to its members and shall make no distribution of income to its members, directors or officers, and upon dissolution, all assets of the Association shall be transferred only to another non-profit corporation or a public agency or as otherwise authorized by the Florida Not For Profit Corporation Act (Chapter 617, Florida Statutes). 5.5 Limitation. The powers of the Association shall be subject to and shall be exercised in accordance with the provisions hereof and of the Declaration, the By-Laws and the Act, provided that in the event of MIA 180,800,532v7 1-29-10 conflict, the provisions of the Act shall control over those of the Declaration and By-Laws. ARTICLE 6 MEMBERS 6.1 Membership. The members of the Association shall consist of all of the record title owners of Units in the Condominium from time to time, and after termination of the Condominium, shall also consist of those who were members at the time of such termination, and their successors and assigns. 6.2 Assignment. The share of a member in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to the Unit for which that share is held. 6.3 Vo• tiniz. On all matters upon which the membership shall be entitled to vote, each Unit shall be entitled to the number off votes set forth in the Declaration. All votes shall be exercised or cast in the manner provided by the Declaration and By-Laws. Any person or entity owning more than one Unit shall be entitled to cast the aggregate number of votes attributable to all Units owned. 6.4 Meetings. The By-Laws shall provide for an annual meeting of members, and may make provision for regular and special meetings of members other than the annual meeting. ARTICLE 7 TERM OF EXISTENCE The Association shall have perpetual existence, unless dissolved in accordance with applicable law. ARTICLE S INCORPORATOR The name and address of the Incorporator of this Corporation is: Name Address MIA 180, 800, 532v7 1-29-10 ARTICLE 9 OFFICERS The affairs of the Association shall be administered by the officers holding the offices designated in the By-Laws. The officers shall be elected by the Board of Directors of the Association at its first meeting following the annual meeting of the members of the Association and shall serve at the pleasure of the Board of Directors, provided, however, that the President and at least one Vice President of the Association must always be Directors, and, if the President is affiliated with any of the Owners of the City Controlled Units , then at least one Vice President, shall be affiliated with the Declarant Controlled Units, and if the President is affiliated with any of the Declarant Controlled Units, then at least one Vice President, Secretary and Treasurer shall be affiliated with the City Controlled Units. The By-Laws may provide for the removal from office of officers, for filling vacancies and for the duties and qualifications of the officers. The names and addresses of the officers who shall serve until their successors are designated by the Board of Directors are as follows: President Vice President Vice President Secretary/ Treasurer MIA 180, 800, 5320 1-29-10 ARTICLE 10 DIRECTORS 10.1 Number and Qualification. The property, business and affairs of the Association shall be managed by a board consisting of three (3) directors. Directors need not be members of the Association. 10.2 Duties and Powers. All of the duties and powers of the Association existing under the Act, the Declaration, these Articles and the By- Laws shall be exercised exclusively by the Board of Directors, its agents, contractors or employees, subject only to approval by Unit Owners when such approval is specifically required. 10.3 Election, Removal. To the extent permitted by the Act, at all times, prior to and/or following transfer of control in accordance with the provisions of Section 718.301, Florida Statutes (2008), the Owner of Retail Units shall each be entitled to elect and/or appoint one (1) member to the Board and the Owner of the Parking Unit shall be entitled to elect and/or appoint one (1) member to the Board. Directors may be removed only by the Unit Owner that elected/appointed the Director and vacancies on the Board of Directors shall be filled by the election/appointment of another Director by the Unit Owner who originally elected/appointed the Director being replaced. 10.4 First Directors. The names and addresses of the members of the first Board of Directors who shall hold office until their successors are elected and have taken office, as provided in the By-Laws, are as follows: Name Address MIA 180, 800, 532v7 1-29-10 10.5 Standards. A Director shall discharge his or her duties as a director, including any duties as a member of a Committee: in good faith; with the care an ordinary prudent person in a like position would exercise under similar circumstances; and in a manner reasonably believed to be in the best interests of the Association. An officer, director or agent shall be liable for monetary damages as provided in Section 617.0834, F.S. if such officer, director or agent's breach or failure to perform, his or her duties constitutes a violation of criminal law as provided in Section 617.0834, F.S.; constitutes a transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property. Unless a Director has knowledge concerning a matter in question that makes reliance unwarranted, a Director, in discharging his or her duties, may rely on information, opinions, reports or statements, including financial statements and other data, if prepared or presented by: one or more officers or employees of the Association whom the Director reasonably believes to be reasonable and competent in the matters presented; legal counsel, public accountants or other persons as to matters the Director reasonably believes are within the persons' professional or expert competence; or a Committee of which the Director is not a member if the Director reasonably believes the Committee merits confidence. A Director is not liable for any action taken as a director, or any failure to take action, if he performed the duties of his or her office in compliance with the foregoing standards. ARTICLE 11 INDEMNIFICATION 11.1 Indemnitees. The Association shall indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, MIA 180,800,532v71-29-10 the Association) by reason of the fact that he or she is or was a director, officer, employee, committee member or agent (each, an "Indemnitee") of the Association, against liability incurred in connection with such proceeding, including any appeal thereof, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Association and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Association or, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. 11.2 Indemnification. The Association shall indemnify any person, who was or is a party to any proceeding by or in the right of the Association to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee, or agent of the Association against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof. Such indemnification shall be authorized if such person acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Association, except that no indemnification shall be made under this Article 11 in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable unless, and only to the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. 11.3 Indemnification for Expenses. To the extent that a director, officer, employee, or agent of the Association has been successful on the merits or otherwise in defense of any proceeding referred to in Subsection 11.1 or 11.2, or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith. MIA 180,800,532v7 1-29-10 11.4 Determination of Applicability. Any indemnification under Subsection 11.1 or Subsection 11.2 unless pursuant to a determination by a court, shall be made by the Association only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper under the circumstances because he or she has met the applicable standard of conduct set forth in Subsection 11.1 or Subsection 11.2. Such determination shall be made: (a) By the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such proceeding; (b) If such a quorum is not obtainable or, even if obtainable, by majority vote of a Committee duly designated by the Board of Directors (in which directors who are parties may participate) consisting solely of two or more Directors not at the time parties to the proceeding; (c) By independent legal counsel: 1. selected by the Board of Directors prescribed in Subsection 11.4(a) or the Committee prescribed in Subsection 11.4(b); or 2. if a quorum of the Directors cannot be obtained for Subsection 11.4(x) and the Committee cannot be designated under Subsection 11.4(b), selected by majority vote of the full Board of Directors (in which Directors who are parties may participate); or (d) By a majority of the voting interests of the members of the Association who were not parties to such proceeding. 11.5 Determination Regarding-Expenses. Evaluation of the reasonableness of expenses and authorization of indemnification shall be made in the same manner as the determination that indemnification is permissible. However, if the determination of permissibility is made by independent legal counsel, persons specified by Subsection 11.4(c) shall evaluate the reasonableness of expenses and may authorize indemnification. 11.6 Advancing Expenses. Expenses incurred by an officer or director in defending a civil or criminal proceeding may be paid by the MIA 180,800,532x7 1-29-10 Association in advance of the final disposition of such proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if he is ultimately found not to be entitled to indemnification by the Association pursuant to this section. Expenses incurred by other employees and agents may be paid in advance upon such terms or conditions that the Board of Directors deems appropriate. 11.7 Exclusivity; Exclusions. The indemnification and advancement of expenses provided pursuant to this section are not exclusive, and the Association may make any other or further indemnification or advancement of expenses of any of its directors, officers, employees, or agents, under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. However, indemnification or advancement of expenses shall not be made to or on behalf of any director, officer, employee, or agent if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (a) A violation of the criminal law, unless the director, officer, employee, or agent had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (b) A transaction from which the director, officer, employee, or agent derived an improper personal benefit; or (c) Willful misconduct or a conscious disregard for the best interests of the Association in a proceeding by or in the right of the Association to procure a judgment in its favor or in a proceeding by or in the right of the members of the Association. 11.8 Continuing Effect. Indemnification and advancement of expenses as provided in this Article 11 shall continue as, unless otherwise provided when authorized or ratified, to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person, unless otherwise provided when authorized or ratified. 11.9 Application to Court. Notwithstanding the failure of the Association to provide indemnification, and despite any contrary determination of the Board or of the members in the specific case, a director, officer, MIA 180,800,532v7 1-29-10 employee, or agent of the Association who is or was a party to a proceeding may apply for indemnification or advancement of expenses, or both, to the court conducting the proceeding, to the circuit court, or to another court of competent jurisdiction. On receipt of an application, the court, after giving any notice that it considers necessary, may order indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses, if it determines that: (a) The director, officer, employee, or agent is entitled to mandatory indemnification under Subsection 11.3, in which case the court shall also order the Association to pay the director reasonable expenses incurred in obtaining court- ordered indemnification or advancement of expenses; (b) The director, officer, employee, or agent is entitled to indemnification or advancement of expenses, or both, by virtue of the exercise by the Association of its power pursuant to Subsection 11.7; or (c) The director, officer, employee, or agent is fairly and reasonably entitled to indemnification or advancement of expenses, or both, in view of all the relevant circumstances, regardless of whether such person met the standard of conduct set forth in Subsection 11.1, Subsection 11.2, or Subsection 11.7, unless (a) a court of competent jurisdiction determines, after all available appeals have been exhausted or not pursued by the proposed indemnitee, that he or she did not act in good faith or acted in a manner he or she reasonably believed to be not in, or opposed to, the best interest of the Association, and, with respect to any criminal action or proceeding, that he or she had reasonable cause to believe his or her conduct was unlawful, and (b) such court further specifically determines that indemnification should be denied. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith or did act in a manner which he or she reasonably believed to be not in, or opposed to, the best interest of the Association, and, with respect to any criminal action or proceeding, that he or she had reasonable cause to believe that his or her conduct was unlawful. MIA 180,800,532v7 1-29-10 11. 10 Definitions. For purposes of this Article 11, the term "expenses" shall be deemed to include attorneys' fees and related "out-of-pocket" expenses, including those for any appeals; the term "liability" shall be deemed to include obligations to pay a judgment, settlement, penalty, fine, and expenses actually and reasonably incurred with respect to a proceeding; the term "proceeding" shall be deemed to include any threatened, pending, or completed action, suit, or other type of proceeding, whether civil, criminal, administrative or investigative, and whether formal or informal; and the term "agent" shall be deemed to include a volunteer; the term "serving at the request of the Association" shall be deemed to include any service as a director, officer, employee or agent of the Association that imposes duties on, and which are accepted by, such persons. 11.11 Amendment. Anything to the contrary herein notwithstanding, no amendment to the provisions of this Article 11 shall be applicable as to any party eligible for indemnification hereunder who has not given his or her prior written consent to such amendment. ARTICLE 12 Rv-r.Aw,9 The first By-Laws of the Association shall be adopted by the Board of Directors and may be altered, amended or rescinded in the manner provided in the By-Laws and the Declaration. ARTICLE 13 AMENDMENTS Amendments to these Articles shall be proposed and adopted in the following manner: 13.1 Notice. Notice of a proposed amendment shall be included in the notice of any meeting at which the proposed amendment is to be considered and shall be otherwise given in the time and manner provided in Chapter 617, Florida Statutes. Such notice shall contain the proposed amendment or a summary of the changes to be affected thereby. 13.2 Adoption. Amendments shall be proposed and adopted in the manner provided in Chapter 617, Florida Statutes and otherwise in the same manner required for amendment to the Declaration. MIA 180, 800, 532v7 1-29-10 13.3 Limitation. No amendment shall make any changes in the qualifications for membership, nor in the voting rights or property rights of members, nor any changes in Subsections 5.3, 5.4 or 5.5 above, without the approval in writing of all members and the joinder of all record owners of mortgages upon Units. No amendment shall be made that is in conflict with the Act, the Declaration or the By- Laws, nor shall any amendment make any changes which would in any way affect any of the rights, privileges, powers or options herein provided in favor of or reserved to the Declarant and/or Mortgagees, unless the Declarant and/or the Mortgagees, as applicable, shall join in the execution of the amendment. No amendment to this Subsection 13.3 shall be effective. 13.4 Declarant Amendments. Notwithstanding anything herein contained to the contrary, to the extent lawful, the Declarant may amend these Articles consistent with the provisions of the Declaration allowing certain amendments to be effected by the Declarant alone. 13.5 Recording. A copy of each amendment shall be filed with the Secretary of State pursuant to the provisions of applicable Florida law, and a copy certified by the Secretary of State shall be recorded in the public records of Pinellas County, Florida with an identification on the first page thereof of the book and page of said public records where the Declaration was recorded which contains, as an exhibit, the initial recording of these Articles. ARTICLE 14 INITIAL REGISTERED OFFICE; ADDRESS AND NAME OF REGISTERED AGENT The initial registered office of this corporation shall be at c , with the privilege of having its office and branch offices at other places within or without the State of Florida. The initial registered agent at that address shall be IN WITNESS WHEREOF, the Incorporator has affixed his/her signature this day of , 2009. , Incorporator MIA 180,800,532v7 1-29-10 CERTIFICATE DESIGNATING PLACE OF BUSINESS OR DOMICILE FOR THE SERVICE OF PROCESS WITHIN THIS STATE, NAMING AGENT UPON WHOM PROCESS MAY BE SERVED In compliance with the laws of Florida, the following is submitted: First -- That desiring to organize under the laws of the State of Florida with its principal office, as indicated in the foregoing articles of incorporation, in the County of Pinellas, State of Florida, the Association named in the said articles has named located at as its statutory registered agent. Having been named the statutory agent of said Association at the place designated in this certificate, I am familiar with the obligations of that position, and hereby accept the same and agree to act in this capacity, and agree to comply with the provisions of Florida law relative to keeping the registered office open. By: . Name: Title: DATED this day of , 2009. MIA 180, 800, 532v7 1-29-10 This instrument prepared by, or under the supervision of (and after recording, return to): Nancy B. Lash, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, FL 33131 PARKING COVENANT THIS PARKING COVENANT (the "Covenant") is made as of the day of , 20_, by and between the CITY OF CLEARWATER, a municipal corporation of the State of Florida (the "City") and L.O.M., INC., a Florida corporation (the "Declarant"). RECITALS: A. Declarant is the owner in fee simple of that certain parcel of land located at 315 S. Gulf View Boulevard in Clearwater, Florida, which is legally described or depicted in Exhibit A attached hereto (the "Pro a "). B. City and Declarant entered into that certain Agreement For Development of Property (Surf Style Condominium Project) dated February 18, 2010 (together with any amendments, modifications, extensions, restatements and supplements from time to time, the "Development Agreement"), which governs, among other things, the construction and development of a mixed use retail/commercial project and a commercial parking garage on the Property (the "Project"). C. As a condition to entering into the Development Agreement, City has required and Declarant has agreed to encumber the Property with the covenants and restrictions set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Declarant hereby agrees as follows: 1. Recitals and Definitions. The Recitals above are true and correct and incorporated herein by reference. "Annlicable 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 (as defined below), political subdivision, or any division or department thereof, now existing or hereafter enacted, adopted, promulgated, entered, or issued. "Governmental Authority" means any federal, state, county, municipal or other governmental entity or any instrumentality of any of them, having jurisdiction Exhibit E over the Property. Capitalized terms used in this Covenant (including the Recitals) without definition shall have the meanings given to them in the Development Agreement. 2. Public Parking Covenant. During all times that this Covenant remains in effect, the Project and any future development on the Property shall include a commercial parking garage containing 300 parking spaces open to the public (the "Restricted Parking Spaces") (i) to the extent permitted by Applicable Laws, (ii) provided that City (and/or any other applicable Governmental Authority) issues any necessary license, permit or approval (as required by Applicable Law) to the then fee owner(s) of the Property or the owner(s) of the Restricted Parking Spaces at the Property or the designated parking operator(s) (as applicable) to operate the Restricted Parking Spaces, and (iii) subject to reduction in the number of Restricted Parking Spaces under the limited circumstances provided in paragraph 2(b) below. The foregoing covenant and restriction shall be subject to the following additional terms and conditions: (a) In the event of the restoration, renovation and/or redevelopment of the improvements on the Property (collectively, a "Redevelopment"), whether voluntary, following a casualty or otherwise, the obligation to maintain the Restricted Parking Spaces on the Property for public parking shall abate and toll during the period of such Redevelopment until the date a certificate of occupancy is issued for the restored, renovated or new development. (b) The initial development of the Project includes approximately 41,000 square feet of retail/restaurant space, which space is essential to the viability of the Project with the required Restricted Parking Spaces as a whole. If the Redevelopment of the Project (or a substantially similar retail/commercial project) at any time and from time to time following a casualty or at the end of the useful life of the improvements comprising the Project (or such substantially similar project) would trigger the application of any Land Development Regulation or any other Applicable Law which reduces the amount of retail/restaurant space permissible on the Property below 41,000 square feet (a "Trigger Event"), then the number of Restricted Parking Spaces shall automatically and permanently be reduced at the rate of eight (8) parking spaces for each reduction of 1,000 square feet (or any portion thereof) of retail/restaurant space. Notwithstanding the foregoing, in no event shall the number of Restricted Parking Spaces required hereunder be less than 100 parking spaces or exceed 300 parking spaces at any time. The reduction in the number of Restricted Parking Spaces shall apply to a Redevelopment of the Project on the Property (or another retail/commercial project substantially similar to the Project) following a Trigger Event only, and shall not apply to the Redevelopment of the Property with another type of project (such as a hotel or residential condominium). (c) The Restricted Parking Spaces may be located on all or a portion of the Property in Declarant's sole discretion; it being the intention of the parties that this Covenant require the Restricted Parking Spaces for public parking on the Property subject to the terms and conditions hereof, but not dictate where the Restricted Parking Spaces are or will be located on the Property or the manner in which title to the Property or the Restricted Parking Spaces is held (i.e., whether through single fee title, condominium form of ownership, ground lease or otherwise). F,xhibit F, 3. Covenant Running with the _Land. The covenants and restrictions granted herein are intended as, and shall be, covenants running with the land with respect to the Property. Title to the Property shall be held, transferred, sold, conveyed, leased and occupied subject to the terms of this Covenant. 4. Term. This Covenant shall commence on the date the certificate of occupancy for the Project is issued and shall continue for thirty (30) years from such date, after which time it shall be extended automatically for successive periods of ten (10) years each, unless released in accordance with the provisions of paragraph 7 below. [Insert the following if this Covenant is recorded before the Completion Date: This Covenant shall be null and void, and of no force and effect, in the event the Project is not constructed and completed in accordance with the terms of the Development Agreement by the Completion Date. Although the foregoing cancellation shall be automatic, Declarant shall have the right to provide record notice of such cancellation by recording a termination of this Covenant in the Public Records of Pinellas County, Florida.] 5. Enforcement. In the event that Declarant defaults under the terms, provisions or obligations of this Covenant and such default is not cured within thirty (30) days after receipt of the written notice specifying in reasonable detail the event of default (the "Default Notice"), or if such event of default is of such nature that it cannot be completely cured within such time period, then if the Declarant 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, then City shall have all rights and remedies available at law or in equity for the redress of such default. In the event any action is brought to enforce the terms, conditions and obligations of this Covenant, the prevailing parry in any such action shall be entitled to the recovery of all costs and disbursements of such action, as well as reasonable attorney's fees incurred with respect to such action, at all levels of proceedings. 6. Reservation. Declarant hereby reserves all rights of ownership in and to the Property which are not inconsistent with the restrictions and covenants granted herein. Nothing contained in this Covenant shall (i) be construed as or deemed to constitute a conveyance, gift or dedication of any portion of the Property to City or the general public; or (ii) limit or restrict the absolute and unconditional right of the fee owner of the Property (or any portion thereof) to raze, alter or modify the Project or other improvements located on the Property from time to time or at any time (in its or their sole discretion, following a casualty or otherwise), subject to the terms of paragraph 2 hereof. 7. Amendment and Termination. This Covenant shall automatically terminate in the event the City of Clearwater purchases the Restricted Parking Spaces pursuant to Exhibit L "Put Agreement" of the Development Agreement. This Covenant may not be amended, modified or terminated prior to the end of the term hereof except by written agreement of the then fee simple owner(s) of the Property and City, and the holders of any mortgages of record encumbering the Property. Furthermore, no modification, amendment or early termination shall be effective unless in writing and recorded in the Public Records of Pinellas County, Florida. 8. Governing Laws. The laws of the State of Florida shall govern the interpretation, validity, performance and enforcement of this Covenant. Exhibit E 9. Successors and Assi ns. The rights and obligations of the Declarant hereunder shall bind and inure to the benefit of the Declarant, its successors and assigns. IN WITNESS WHEREOF, this Covenant has been signed, witnessed, executed and acknowledged as of the day and year first above written. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF: Name: L.O.M., INC., a Florida corporation By:_ Name: Title: Name: STATE OF FLORIDA ) COUNTY OF ) The foregoing instrument was acknowledged before me this - day of , 20_ by , as of L.O.M., INC, a Florida corporation, on behalf of the corporation. By: Signature of Notary Public My Commission Expires: Printed, typed or stamp Exhibit E EXHIBIT A LOM 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 FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°15'44"E a distance of 35.00 feet to the Point of Beginning. Exhibit E JOINDER OF MORTGAGEE THIS JOINDER OF MORTGAGEE is given as of the _ day of , 20_, on behalf of [Insert Name of Lender], a ("Mortgagee"), being the owner and holder of that certain mortgage of even date herewith made by , a ("Mortgag_or") in favor of Mortgagee, which Mortgage has been recorded in Official Records Book , Page of the Public Records of Pinellas County, Florida (the "Mortgage"), and encumbers, among other things, the property described in Exhibit A to the foregoing Parking Covenant (the "Parkin Covenant"). WHEREAS, Mortgagor has requested Mortgagee to consent to and join in the Parking Covenant and to subordinate the lien and effect of the Mortgage to the Parking Covenant. NOW, THEREFORE, Mortgagee joins in the execution and consents to the recordation of the Parking Covenant and agrees that the lien and effect of the Mortgage shall be subject and subordinate to the terms of the Parking Covenant. Mortgagee makes no warranty or any representation of any kind or nature concerning the Parking Covenant, any of its terms or provisions, or the legal sufficiency thereof, and disavows any such warranty or representation. Except as expressly provided herein, nothing contained herein shall affect or impair the rights and remedies of Mortgagee as set forth in the Mortgage. EXECUTED as of the day and year first above written. Witnessed by: Print Name: Print Name: STATE OF FLORIDA ) COUNTY OF ) [Insert Name of Mortgagee] By: _ Name: Title: The foregoing instrument was acknowledged before me this , as on behalf of the By: Signature of Notary Public day of Printed, typed or stamp MIA 180, 825, 646v9 2-17-10 of My Commission Expires: 20 by .a Exhibit E EXHIBIT F INTENTIONALLY OMITTED v11 MIA 180,69Z 234 This instrument prepared by, or under the supervision of (and after recording, return to): Nancy Lash, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 for Clerk of SIDEWALK AND TURN-LANE EASEMENT AGREEMENT THIS SIDEWALK AND TURN-LANE EASEMENT AGREEMENT ("Agreement") is made and entered into as of the day of , 20, by and between the CITY OF CLEARWATER, a municipal corporation of the State of Florida and L.O.M., INC., a Florida corporation ("LOM"). RECITALS: A. The City and LOM have entered into that certain Agreement for Development of Property in the City of Clearwater (Surf Style Condominium Project) dated , 20_ (the "Development Agreement"). The Development Agreement sets forth the terms and conditions governing the development and construction of a retail/commercial project containing approximately 41,000 square feet, which project includes a parking garage containing approximately 349 parking spaces (of which 300 spaces will be open to the public), on certain real property located on South Gulfview Boulevard in the City of Clearwater, Florida, more particularly described in Exhibit A attached hereto (the "LOM Property"). B. The City owns or controls that certain parcel of land lying adjacent to and east of the LOM Property, which is a portion of the sixty foot (60') right-of-way known as "Coronado Drive". C. Pursuant to Section 2.03(6) of the Development Agreement, LOM agreed to grant an easement in favor of the City for a sidewalk and turn-lane encumbering an [eleven (11)] foot wide strip of land on the east side of the LOM Property along Coronado Drive, as is more particularly described in Exhibit B attached hereto ("Easement Area"). D. LOM hereby desires to grant and create, on the terms and conditions hereinafter set forth, certain easements over, under and upon that portion of the Easement Area in favor of the City. NOW, THEREFORE, in consideration of the premises, agreements and covenants set forth hereinafter, and for other good and valuable consideration, the receipt and sufficiency of Exhibit G MIA 181,008,5440 1-27-10 which are hereby acknowledged, the City and LOM hereby agree that the foregoing recitals are true and correct and further agree as follows: 1. Grant of Easements to the City. Subject to the conditions herein, LOM hereby grants to the City for the use of the City, its agents, employees, contractors, representatives and licensees and the members of the general public a perpetual non-exclusive easement over, through, upon, across and under the Easement Area for the following purposes: (i) pedestrian and vehicular ingress and egress and (ii) maintenance, repair, and restoration of the Easement Area, including, without limitation, the sidewalk and turning lane located therein. The easements granted herein include the right to keep and maintain the sidewalk and turning lane within the Easement Area (and repair, restore and replace same in the event of damage or destruction of any kind or nature) in perpetuity. 2. Maintenance of Easement Area. The City shall, at its sole cost and expense, (a) except as otherwise provided herein, maintain and repair the Easement Area in accordance with all of the City of Clearwater standards for maintenance of sidewalks and turning lanes or, more broadly, for areas providing vehicular and pedestrian ingress and egress to the general public, if applicable, and (b) repair any damage to the landscaping, surfaces, structures or utilities within the Easement Area caused by the use of the Easement Area by the City and the general public. Notwithstanding the foregoing, LOM shall reimburse the City for all costs and expenses incurred in the maintenance, repair and restoration of the Easement Area necessitated by or required as a result of the negligence or willful misconduct of LOM, its employees, contractors, operators, agents or representatives. 3. No Obstruction of Traffic. Except during temporary periods when it is reasonably necessary to repair or replace facilities or improvements within the Easement Area or to make installations within the Easement Area (including, without limitation, utility lines), LOM and the City shall permit no material obstruction to the free flow of vehicular or pedestrian traffic in and through the Easement Area. All construction, maintenance or repair work within the Easement Area shall be accomplished in such a manner as to minimize any disruption to the free flow of ingress and egress over and across the Easement Area. 4. Reservation. LOM hereby reserves all rights of ownership in and to the Easement Area which are not inconsistent with the easement and rights granted herein, including, without limitation, the right to grant further easements on, over and/or across such area (e.g. utility easements) and all other uses not interfering with the uses permitted herein. 5. Liens. The City shall keep the Easement Area (and all portions thereof) at all times free of mechanics' liens, and any other liens, for labor, services, supplies, equipment or materials purchased or procured, directly or indirectly, by or for the City. The City agrees that it will promptly pay and satisfy all such liens of contractors, subcontractors, mechanics, laborers, materialmen and others of like character. In the event any such liens shall be made or filed, the City shall bond against or discharge same within thirty (30) days after receiving written notice of the filing of same. The City shall not have any authority to create any liens for labor or material on the Easement Area and all persons contracting with the City for the performance of any services, supply of any materials or provision of any labor for any work done in, on or around the Easement Area, and all materialmen, contractors, suppliers, mechanics and laborers are hereby MIA 181,008,5443 1-27-10 Exhibit G charged with notice that they must look solely to the City to secure payment of any bill for work done or material furnished at the request or instruction of the City. 6. Defaults. In the event that any party defaults under the terms, provisions or obligations of this Agreement and such default is not cured within thirty (30) days after receipt of the written notice specifying in reasonable detail the event of default ("Default Notice"), or if such event of default is of such nature that it cannot be completely cured within such time period, then if the defaulting party 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, then the nondefaulting party shall have all rights and remedies available at law or in equity for the redress of such default, including, in the case of LOM, the right of self-help under the circumstance set forth in paragraph 7 below. 7. Self-Help. If the City fails to maintain the Easement Area in the condition described in paragraph 2 above, then LOM may give a Default Notice to the City, and the City shall have the applicable cure period (described in paragraph 6 above) following receipt of such notice to restore the Easement Area to the required condition. If the City fails to restore the Easement Area within said cure period, then, in addition to the other remedies provided herein, LOM may restore same to the required condition and thereafter the City shall reimburse LOM for the reasonable costs of such restoration (excluding any restoration the cost of which the City is required to reimburse under paragraph 2) within fifteen (15) days following LOM's receipt of an invoice therefor. Any sums not reimbursed when required herein shall bear interest at the maximum rate allowed by law from the date due until paid. 8. Covenant Running with the Land. The easements hereby granted and the requirements herein contained are intended as, and shall be, covenants running with the land. 9. Amendments, Termination. This Agreement may not be amended, modified or terminated except by written agreement of the City and all of the fee owners of the LOM Property, and the holders of any mortgages of record encumbering same. Furthermore, no modification or amendment shall be effective unless in writing and recorded in the Public Records of Pinellas County, Florida. 10. Miscellaneous. a. Counterparts. This Agreement may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all of which (when taken together) shall constitute one and the same instrument. b. Construction. Reference to any paragraph, section, exhibit, or subpart thereof, unless otherwise provided, shall refer to this Agreement. In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and reference to any particular gender shall be held to include every other and all genders. Use of the term "including" shall mean "including, without limitation". Each of the parties hereto and their counsel have reviewed and revised, or requested revisions to, this Agreement, and the usual rule of construction that any ambiguities are to be resolved against the drafting party shall be Exhibit G MIA 181,008,5440 1-27-10 inapplicable in the construction and interpretation of this Agreement and any amendments or exhibits to this Agreement. C. Titles_ of Paragraphs and Sections. The titles of the several parts, paragraphs and sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. d. Notices. Any notice or communication under this Agreement shall be in writing and shall be deemed sufficiently given if hand delivered or dispatched by United States certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight delivery service, to the appropriate party or entity, and their respective authorized representatives as set forth below, at the address specified below or at such other address of which the other parties shall be duly notified in writing: NOTICE TO THE CITY: City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager NOTICE TO LOM: L.O.M., Inc. c/o Surf Style, Inc. 4100 N. 28th Terrace Hollywood, Florida 33020 Attn: Controller WITH COPY TO: Pamela K. Akin, Esq. Clearwater City Attorney 112 S. Osceola Avenue Clearwater, FL 33756 WITH COPY TO: Greenberg Traurig, P.A. 1221 Brickell Avenue, 23rd Floor Miami, Florida 33131 Attn: Nancy B. Lash, Esq. All notices shall be deemed received when actually delivered if delivered by hand or by a nationally recognized overnight delivery service and shall be deemed delivered five (5) days following mailing in the event mailed as provided above. e. S_everability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to the persons or circumstance other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. f. Governing. The laws of the State of Florida shall govern the interpretation, validity, performance and enforcement of this Agreement. Venue for any action brought hereunder shall be proper exclusively in Pinellas County, Florida. g. Ex^ _ penses. In the event any arbitration, litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such arbitration, litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorneys' and paralegals' fees, expenses and suit costs, including those associated with any appellate or post judgment collection proceedings. Exhibit G MIA 181, 008, 544v3 1-27-10 h. Exhibits. All of the Exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. i. Waiver of Jury Trial. The parties 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. [The remainder of this page is intentionally left blank.] Exhibit G MIA 181,008,5444 1-27-10 EXECUTED as of the date and year first above written. CITY OF CLEARWATER, FLORIDA By: Frank V. Hibbard Mayor Approved as to form: Attest: Pamela K. Akin Cynthia E. Goudeau City Attorney City Clerk MIA 181,008,5440 1-27-10 Exhibit G SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF. Name: Name: STATE OF FLORIDA COUNTY OF L.O.M., INC., a Florida corporation By:_ Name: Title: The foregoing instrument was acknowledged before me this as Florida corporation, on behalf of the corporation. By: Signature of Notary Public Printed, typed or stamp day of , 20_ by of L.O.M., INC, a My Commission Expires: MIA 181,008,544v3 1-27-10 Exhibit G JOINDER OF MORTGAGEE THIS JOINDER OF MORTGAGEE is given as of the _ day of , 20_, on behalf of [Insert Name of Lender], a ("Mortgagee"), being the owner and holder of that certain mortgage of even date herewith made by a ("Mortgagor") in favor of Mortgagee, which Mortgage has been recorded in Official Records Book , Page of the Public Records of Pinellas County, Florida (the "Mortgage"), and encumbers, among other things, the property described in Exhibit A to the foregoing Sidewalk and Turn-Lane Easement Agreement (the "Easement"). WHEREAS, Mortgagor has requested Mortgagee to consent to and join in the Easement and to subordinate the lien and effect of the Mortgage to the Easement. NOW, THEREFORE, Mortgagee joins in the execution and consents to the recordation of the Easement and agrees that the lien and effect of the Mortgage shall be subject and subordinate to the terms of the Easement. Mortgagee makes no warranty or any representation of any kind or nature concerning the Easement, any of its terms or provisions, or the legal sufficiency thereof, and disavows any such warranty or representation. Except as expressly provided herein, nothing contained herein shall affect or impair the rights and remedies of Mortgagee as set forth in the Mortgage. EXECUTED as of the day and year first above written. Witnessed by: Print Name: Print Name: STATE OF FLORIDA ) COUNTY OF ) [Insert Name of Mortgagee] By: _ Name: Title: The foregoing instrument was acknowledged before me this , as on behalf of the By: Signature of Notary Public of Printed, typed or stamp day of My Commission Expires: Exhibit G 20 by ,a EXHIBIT A LOM 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 FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°15'44"E a distance of 35.00 feet to the Point of Beginning. MIA 181,008,5440 1-27-10 SKETCH of DESCRIPTION THIS 15 NOT A BOUNDARY SURVEY SCALE ; 1' = 50 0 W. 100' ? I f LOT 59 I 1 _ 1 f oypr - - ? r LOT 106 f I 1 ! SS1'59' ! LOT 60 11.003 F ? r I J r Northeast rly 1 1 I 1 Southerly 1/2 Comer s uth 112' 1 ? _ Ir, LOT 107 0 Lot 107 1 1 m? 11 ??--1 ~~~ W? r ! 1 1 i 1 LOT 108 1 1 UJ gf 1 LOT 61 ! ;_ ?1 I ? ?! ! 1 a 1 1 ? 1 1 ! - - ? I 1 r- 1 0?v ! ! J? ! ? 1 'U p? ? ! I? ``?r LOT 109 !?• r rr 1 e LOT 62 r??y? ? r r 0° ! iQIPj 1 1 ! Ryl I LOT 110 0/ 1 I ,., 1 11 ? -{ _ ; V ! I ? LOT 63 1 ! f ? NS0'58'05"fy r ! T 1.oD' CURVE DATA LOT 111 1 P d.B. ! Southeasterly Comer CURVE RADIUS DELTA ANGLE ARC LENGTH CHORD LENGTH CHORD BEARING Lot 110 ! C1 6216.52' 01-36-10- 173.91' 173.90' 1 N0653 29"E ! C2 6227.52' 01'36'07" 174.11' 174.11' S08'53'26"W 1 DESCRIPTION; (proposed access easement) The Easterly 11.0 feel of the Southerly one-half of Lot 107 and the Easterly 11.0 feet of Lots 108 and 109 and 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as reearded in Plot Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Southeasterly comer of said Lot 110; thence N8O'56'05'W, along the Southerly boundary thereof a distance of 11.00 feet; thence 173.91 feet along the arc of a curve to the left having o radius of 6215,52 feet, subtended by a chord distance of 173,90 feet, bearing N06753'29"W to a point of intcraection with the Northerly boundary of the Southerly one--half of said Lot 107; thence S81'59'43"E, along said Northerly boundary a distance of 11.00 feet to the Northeasterly comer of the South one-half of said Lot 107; thence 174.11 feet along the Westerly fight of tray line of Coronado (rive and along the arc of a curve to the right having a radius of 6227.52 Feet, subtended by a chord distance of 174.11 feet, bearing SOIr53'25"W, to the Point of Beginning. NOTES: LEGEND I. NO uNDERGRoum wm"TLONS OR 111PRoimAu S HAVE BEEN IArATED EXCEPT As sHOWN. 2. NO INSTRUMENTS OF RECORD REFLECTING EASEMENTS, RIGHT OF NAY AND/OR OWNERSHIP WERE ID mENTF1GOlOH FURNISHED TO THIS SURVEYOR EXCEPT AS SHOW. PLS L9 PROFESMA UAID SURVEYOR UCDIISED GUSNE55 3. THIS SKETCH DOES NOT REFLECT OR DETERMINE OWNERSHIP, P Fur INFORVATION 4_ USE OF THIS SKETCH BY ANYONE OTHER THAN THOSE PREPARED FOR WILL BE THE RE-USERS o DEED or DESCRIPM aFOr8Y1TiDN SOLE RISK WRHOUT LEABRM TO THE SURVEYOR. F FIELD WASIARED 5. THE 5KETCFI WAS PREPARED WR110Uf THE BENEFIT OF A CURRENT TITLE COMMITMENT AND IS POET P%f OF SMOMIG. SU1TW TO IASEME7AS. RKH713-M-WAY AND SIMM PATTERS OF TRI.E. Poc Doan OF COMMEMCB IR 6. MERIDIAN BASED ON THE WESTERLY RK;FIT OF WAY LINE OF CORONADO DRIVE AS BEARONO SOIrS3'26Y1 (ASSUMED). Prepared K for and Certified To: DATE: Drawing No. 902602.dwg Project No. 9026 eith Za rc and Associates, Inc. December 22. 2009 Checked By ICON 'Meld Book Pages Drawn By ! r ......... t SUNCOAST LAND SURV •- `SURVEYOR'S Cf"(7n61 TE wm d under my RESPONSIBLE I " er1111' Ih*um 11cm ?ereon EYING, Inc. a+ANa pn 114 ddef•FS anwM YTfi dL RCS opt Nrih by a pi 111 FOREST LAKES BOULEVARD OLDSMAR, FLA. 34677 A go FURM am 0 5l1REYDRST 6IC17 I.r5stclT-e, FLORIDA WOE Kpx" to V FLORIDA, L1CENSED THE 'NOT wun TATIIOIrt. µa 0 ¢FAl aF A BOUNDARY -- TOPOGRAPHIC - CONSTRUCTION STAI(ECUT AND .0 SUSIVE A? LB 4513 PFIONE (813) 654-13+2 FAX: (613) 855-6890 -' ER L A No. PLS N0.5279 Exhibit S EXHIBIT H LIST OF REQUIRED PERMITS AND APPROVALS City of Clearwater Community Development Board (CDB) Approval of Project City of Clearwater City Council Approval of Project City of Clearwater City Council Approval of Break Wall City of Clearwater Building Construction Permit for Break Wall City of Clearwater Right-of-Way Use Permit for Break Wall Federal Emergency Management Agency (FEMA) Map Revision Approval City of Clearwater Building/Site Construction Permit City of Clearwater Right-of-Way Use Permit for Project City of Clearwater Comprehensive Sign Program Permit Florida Department of Environmental Protection (FDEP) Water & Sewer Construction Permit FDEP National Pollutant Discharge Elimination System (NPDES) Permit Southwest Florida Water Management District (SWFWMD) Environmental Resource Permit m e © N N N N N N N • N N N N N N N N IM CC G O O o 0 0 0 0 o o a ' ' o 0 0 0 0 0 0 0 o a • W C •?„ 0. a m S S O A S O A Q ,,pp O A Q A A o O N N v N O W v v v NN N N v C ? 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NeLrotiated Tim Haahs Guidelines - January 20, 2010 (Reference October 30, 2009 TimHaahs Design Guidelines for further clarification and detail - see attached) Governing Codes and References 1) 2007 Florida Building Code 2) Code of Ordinances: City of Clearwater, FL 3) Code and Land Development Code, County of Pinellas County, FL 4) Beach by Design: A Preliminary Design for Clearwater Beach - including Section VII. Design Guidelines 5) NFPA 101 Life Safety 6) NFPA 88A Standard for Parking Structures 7) ACI 318-05 Building Code Requirements for Structural Concrete 8) ACI 362.1 R-97 Guide for the Design of Durable Concrete Parking Structures Note: with approved variances to Section 8.c.i - Slope for Drainage and Sections 8. c. ii & 8.c.iii -- Corrosion Protection and Estimated Service Life as outlined in letter to Ms. Tracey Bruch, City Parking Manager, by Allen Finfrock, PE, Vice-President of Finfrock Design, Inc. dated September 24, 2009. 9) ANSI Al 17.1 Accessible and Usable Buildings and Facilities 10) Design Team is required to design the project under the applicable building codes, regulations and standards at the time of the design submission for approval and construction. 11) Design Team shall incorporate sustainable design practices into the project, such as recycled materials, energy efficient lighting, etc. Functional Provisions 1) 9'-0" x 18'-0" typical parking spaces a. Additional P-0" width shall be included for spaces adjacent to continuous obstructions (i.e. columns, walls, fences) 2) Typical floor clearance: Minimum of 7'-0" 3) ADA van space location clearance: Minimum of 8'-2" 4) ADA spaces shall be located adjacent to stair/elevator towers to minimize travel distance 5) Wheelstops shall be provided at ADA spaces only, as required 6) Ramp slopes a. Typical floors shall be between 5% and 6% b. Speed ramps shall not exceed 12% c. Areas near parking equipment shall be between 2% and 3% 7) End bay clearances: Utilize 27'-0" clear at two-way crossovers for proper turning radius Exhibit J 8) Queuing: Minimum distance 40'-0" for entry and exit lanes 9) Minimize use of curbs within the parking structure 10) Maximize openings in interior and exterior walls 11) Utilize exterior shearwalls with openings, in lieu of interior locations Note: Final Design Plans will limit width of Shearwall at Gridline C5.25 to extent possible as dictated by the Structural Engineer. Convex mirrors will be installed as necessary to facilitate sight lines around potential obstacles. 12) Minimize areas of conflict between pedestrians and vehicles. Where areas of conflict exist, provide a means of traffic calming devices (flashing signals, crosswalk striping, bollards, etc.). Provide additional bollards at Stair and Elevator towers. 13) Eliminate hiding places such as solid walls and deep corners 14) Means to prevent bird nesting including sloped ledges, spikes, repellents Note: City's Maintenance Department will provide if City takes possession of garage in the future. 15) Access along north side of garage to allow for future maintenance and repairs Note: Personnel access only will be provided, but not equipment wider than 3 feet 16) Rooms as required for Storage/Utility, Electrical, Mechanical, Transformer, Generator, Elevator Machine. Provide a utility room adjacent to the parking office. Architectural Provisions 1) Stairtowers/Elevator towers a. ADA compliant design and layout b. Enclosure at top level for elevator tower for weather protection. Inclusion consists of a standing seam metal room without glazing. c. Maximize openness within stairtowers for increased visibility Note: Due to fire rating, no openings will be provided internal to the garage. Maximized openness will be provided to the exterior, where fire rating is not required. e. Galvanized steel handrails Note: Powder-coated aluminum handrails will be provided f. Abrasive nosings cast into stair treads Note: Tim Haahs reviewed independent testing report of Finfrock's stairs and found acceptable g. Enclose bottom run of stairs at ground level to eliminate hiding places Exhibit 1 2) Elevators a. Hydraulic type, minimum of two cabs Note: Two machine-room-less traction elevators will be provided b. Vandal resistance cab, hoistway, fixture finishes (i.e. textured stainless steel) c. Emergency call equipped d. Tied into the emergency power source Note: An emergency generator will be provided to service all garage lighting, one elevator, half of all retail lighting and one point of sale location, and public corridor. e. Durable floor system (i.e. continuous vinyl tile) 3) Signage a. Adequate wayfinding signage for both vehicles and pedestrians. b. Consider implementing a floor theme to aid patrons in remembering their vehicle location. c. Scotchlite reflective signs Structural Provisions 1) Corrosion protection methods in line with ACI 362 Note: with approved variances to Section 8.c.i - Slopefor Drainage and Sections 8.c.ii & 8.c.iii - Corrosion Protection and Estimated Service Life as outlined in letter to Ms. Tracey Bruch, City Parking Manager, by Allen Finfrock, PE, Vice-President of Finfrock Design, Inc. dated September 24, 2009. 2) Galvanized steel precast connections that are protected by grout or cast-in-place toppings or washes 3) Stainless steel precast connections (i.e. tee to tee) that are protected by sealant alone 4) Minimize exposed welded or bolted connections S) Concrete slab-on-grade with tooled joints and vapor barrier beneath occupied areas 6) Tooled joints with sealants in cast-in-place toppings or washes Waterproofing Provisions 1) Expansion joints located at high points 2) Compressible filler material at vertical expansion joints between garage and stairtowers, such as an Emseal Colorseal product 3) Elastomeric deck coating above all occupied spaces and MEP rooms 4) Treat the exposed ramp as a plaza deck to provide increased waterproofing protection for occupied space below Note: An Auto-Gard polyurethane vehicular traffic deck coating produced by Neogard over all occupied spaces that carries a 10 year Joint and Several Warranty and will be flood tested (24 hour period) prior to acceptance. Exhibit J Plumbing Provisions 1) Cold water risers and hose bibs at each parking level for garage washdown 2) Sufficient slope on floor members and an adequate number of floor drains on all levels to negate any areas of water ponding 3) Floor drains used specifically for parking structures, such as Watts FD-900 epoxy coated models or equal Note: Storm Drainage of the upper decks will utilize Slot Drains fastened below the double tee flange, with the entrance a galvanized steel grate and %Z" wide joint between the double tee flanges on the exposed top deck, and %s" wide joint between the double tee flanges on the lower garage levels, all of which sized by Plumbing Engineer. Cleanouts for each drain shall be included. 4) Galvanized steel pipe guards for any exposed risers for bumper guard protection 5) Storm retention system shall be easily accessible for maintenance Fire Protection Provisions 1) Portable fire extinguishers as required by NFPA 10 Standard for Portable Fire Extinguishers 2) Fully sprinklered parking garage 3) Galvanized steel pipe guards for any exposed risers for bumper guard protection Electrical Provisions 1) Lighting levels a. Meet or exceed current minimum IES standards b. Parking/Drive aisles - 10 fc (minimum average) Note: Provide a minimum of 5-6 fc average. c. Vehicular Entry/Exits - 50 fc (minimum average) Note: Lighting will meet the requirements of IES RP-20 d. Stairtowers/Lobby interiors/Ground level retail areas and corridors - 20 fc (minimum average) Note: Lighting will meet the requirements of IES RP-20 e. Provide additional lighting at any interior shearwalls Note: Lighting will meet the requirements of IES RP-20 f. Emergency lighting to meet Code requirements g. Provide photometrics of light levels listed above 2) Lighting fixture a. Fluorescent type fixtures with uplight component Note: Fixtures compliant with Sea Turtle Lighting Restrictions will be utilized. Exhibit J 3) lighting control system a. Programmable lighting control system for time and date control of light fixtures b. Photocells for controlling perimeter lighting and vehicular entry/exit areas. 4) Receptacles a. Weather proof enclosed types located at each stairtower and elevator lobby, each level 5) Conduit a. No placement within expansion joints. b. Expansion capacity when crossing an expansion joint c. Exposed conduit on the exterior of the garage is not permitted 6) Security System a. Consider implementation of a CCTV system with camera placement on all levels of the parking garage, specifically at Stairtower locations and the ground level, specifically at the retail corridor and vehicular entry/exits. 7) Emergency Power a. Backup power (i.e. generator) for ground level occupancy, elevators, and lighting fixtures Note: An emergency generator will be provided to service all garage lighting, one elevator, half of all retail lighting and one point of sale location, and public .corridor. Parking System Provisions 1) Fay-on-foot complete parking equipment system including barrier gates, ticket spitters, detector loops, pay stations (minimum of two), etc. 2) Adequate signage to inform patrons of the payment method to include signage locations throughout the parking garage on all floors and near the pay stations 3) Electronic signs at reversible lanes 4) Parking office including ADA compliance, HVAC conditioning, restroom, telephone, internet, customer service window, etc. Exhibit J TimHas ENGiNEER5 hArl§ E C75 October 30, 2009 Ms. Tracey Bruch, CAPP Parking Manager City of Clearwater 100 S. Myrtle Ave., #220 Clearwater, FL 33758 www.rimhaahs.rom TIMOTHY HAAHS & ASSOCIATES. INC. I x1 NAN. 41 STf?f-FT. SU.Tk. 201 MIAMI , Ft.. 33178 T. 2015-552-7123 I- , 305-592 7113 RE: Surf Style/Britt's Parking Garage Parking Structure Design Guidelines - 9/8/09 Meeting Summary Clearwater, FL Dear Tracey: This letter provides an update to the Parking Structure Design Guidelines based upon the following: • October 2, 2009 Finfrock response letter to the Design Guidelines • October 15, 2009 Parking structure site visits by Finfrock and TimHaahs • October 23, 2009 ACI 362 letters by Finfrock and Tourney Consulting Group A list of remaining items to be addressed is provided below: • Architectural Provisions: 2d-iv Generator inclusion • Electrical Provisions: 1g Photometrics final design We look forward to further discussing these comments with Finfrock and the City of Clearwater. Please contact me at your earliest convenience with any questions or comments. Sincerely, Mark N. Santos, P.E. Vice President Exhibit J PLANNING I ENGINEERING I ARCHITECTURE I PARKING Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 2 Governing Codes and References 1) 2007 Florida Building Code 2) Code of Ordinances: City of Clearwater, FL 3) Code and Land Development Code, County of Pinellas County, FL 4) Beach by Design: A Preliminary Design for Clearwater Beach - including Section VII. Design Guidelines 5) NFPA 101 Life Safety 6) NFPA 88A Standard for Parking Structures 7) ACI 318-05 Building Code Requirements for Structural Concrete 8) ACI 362.1 R-97 Guide for the Design of Durable Concrete Parking Structures a. Comment - There are several items within this guide which are not applicable to a precast concrete garage. A specific example would be the requirements of Section 3.2 - Drainage. The section requires a cross-slope of 1.5% in the direction of the "gutter" line, but due to the forces associated with twisting of the double tee, a slope of only 1.04% is achievable. However, due to the manufactured nature of precast concrete we are able to consistently provide this slope which in the 120 garages built to date has not negatively impacted the drainage of the structure. In addition, we will be able to comply with the requirements in the section entitled "Structural Provisions" listed below. b. Response - Drainage slopes of between 1.5% and 2% shall be met to ensure proper drainage, as noted in the above mentioned reference. It is our understanding each 12'-0" wide tee (6'-0" on center stems) are able to withstand 2" of warp to accommodate the desired drainage slopes. c. 9/8/09 Discussion i. Finfrock stated 1.5" maximum warp can be applied to each tee. TimHaahs recommended that the drain points be lowered to -14" (i.e. Grid C2) to allow a minimum of 1.5% slope from the high point (i.e. Grid Al). In order to maintain the warp limitations, the Grid C1 elevation should be adjusted to -8" Action - Finfrock to confirm. ii. TimHaahs inquired if a penetrating silane sealer will be applied to the structure, however this is currently not included. TimHaahs requested Finfrock incorporate the sealer as identified in ACI 362 Table 3.4 based on the durability zone. Action - Finfrock to confirm. iii. Finfrock intends to use a 3 5/8" flange providing 1 Y," cover as permitted by ACI 318. ACI 362 requires a minimum of 1 '/ ". Per the conference call, TimHaahs found the lesser cover acceptable. Post Meeting - TimHaahs recommends the inclusion of a corrosion inhibitor in the floor members. Action - Finfrock to confirm. d. 10/2/09 Finfrock Response - Please see attached letter from Allen Finfrock, PE concerning the comments regarding ACI 362. e. 10/30/09 TimHaahs Response - Finfrock has provided a letter summarizing a report conducted by Material Service Life in 2008 to estimate the service life of Finfrock garages in various environments throughout the State of Florida. Although the report was not obtainable, a validation letter of this report was provided by Tourney Consulting Group. For item 8-c-i, a 1% minimum drainage slope is acceptable. For items, 8-c-ii and iii, exclusion of sealer and corrosion inhibitor are acceptable. 9) ANSI Al 17.1 Accessible and Usable Buildings and Facilities Exhibit J TimHaahs Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 3 10) Design Team is required to design the project under the applicable building codes, regulations and standards at the time of the design submission for approval and construction. 11) Design Team shall incorporate sustainable design practices into the project, such as recycled materials, energy efficient lighting, etc. Functional Provisions 1) 9'-0" x 18'-0" typical parking spaces a. Additional 1'-0" width shall be included for spaces adjacent to continuous obstructions (i.e. columns, walls, fences) 2) Typical floor clearance: Minimum of 7'-0" 3) ADA van space location clearance: Minimum of 8'-2" 4) ADA spaces shall be located adjacent to stair/elevator towers to minimize travel distance 5) Wheelstops shall be provided at ADA spaces only, as required 6) Ramp slopes a. Typical floors shall be between 5% and 6% b. Speed ramps shall not exceed 12% c. Areas near parking equipment shall be between 2% and 3% 7) End bay clearances: Utilize 27'-0" clear at two-way crossovers for proper turning radius a. Comment - We have not provided this, as we have constructed well over 120 garages using 24' clear drive aisles. b. Response - 24'-0" clear drive aisles are acceptable along straight paths. Per the "Parking Structures" 3`d edition reference, 26'-6" clear turning radius is the minimum requirement for LOS D. Provide 27'-0" clearance for proper two-way traffic at the end bays. Otherwise, provide justification using a turning template to confirm 24'-0" clearance at end bays can function. c. 9/8/09 Discussion i. 29'-0" clearance provided; 24'-0" wide drive aisle is striped. This is acceptable. ii. TimHaahs recommended Finfrock place a turning template at the entry parking equipment to confirm sufficient room is present for a vehicle to access the ticket station. Action - Finfrock to confirm. d. 10/2/09 Finfrock Response -- A turning template will be provided as requested during final design of garage. e. 10/30/09 TimHaahs Response - Turning templates have been provided on the Architectural Plans dated "Progress Print 10/9109". 8) Queuing: Minimum distance 40'-0" for entry and exit lanes 9) Minimize use of curbs within the parking structure 10) Maximize openings in interior and exterior walls 11) Utilize exterior shearwalls with openings, in lieu of interior locations a. Comment - Due to site constraints, we are unable to meet this. b, Response - Will comment further once plans are received and reviewed. c. 9/8/09 Discussion - Finfrock will investigate incorporating openings and/or decreasing the extent of the eastern internal shearwall Exhibit J TimHaabs Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 4 Action - Finfrock to confirm. d. 10/30/09 Finfrock Response - Final Design Plans will limit width of Shearwall at Gridline C5.25 to extent possible as dictated by Structural Engineer. Convex mirrors will be installed as necessary to facilitate sight lines around potential obstacles. 12) Minimize areas of conflict between pedestrians and vehicles. Where areas of conflict exist, provide a means of traffic calming devices (flashing signals, crosswalk striping, bollards, etc.) a. Comment - Typically provide crosswalk striping and bollards as appropriate. b. Response - Will comment further once plans are received and reviewed. c. 9/8/09 - Finfrock will incorporate more bollards at the stairtowers and elevator lobbies. 13) Eliminate hiding places such as solid walls and deep corners a. Comment - We can minimize but not eliminate, due to site constraints. b. Response - Will comment further once plans are received and reviewed. c. 9/8/09 Discussion - Finfrock will incorporate. 14) Means to prevent bird nesting including sloped ledges, spikes, repellents a. Comment - We do not provide this and have not included. b. Response - City will defer this response to a later date upon coordination with Maintenance Department. 15) Access along north side of garage to allow for future maintenance and repairs a. Comment - Access for personnel can be provided, but not equipment wider than 3 feet due to site constraints and proximity of adjacent building. b. Response - This is acceptable. 16) Rooms as required for Storage/Utility, Electrical, Mechanical, Transformer, Generator, Elevator Machine a. Comment - The only rooms that will be located in the garage portion of this building will be the Elevator Machine Room and Operator's Office. b. Response - Confirm need for Electrical and Utility rooms. Will comment further once plans are received and reviewed. c. 9/8/09 Discussion - Finfrock will incorporate a Utility room adjacent to the parking office. Electrical room is located on the ground floor within the retail area. Amenities 1) Bike racks located on ground floor a. Comment - Is there a specific requirement for the number of bike racks required? b. Response - Provide storage to house a minimum of 8 -10 bikes. City will confirm quantity. c. 9/8/09 - Bike rack inclusion is not required. 2) Rinse off area for patrons located on ground floor a. Comment - There is a possibility to locate a rinse off area on the north side of the building along the walkway to the Stair Tower, would this be acceptable? b. Response - Location preference is on beach side. Will comment further once plans are received and reviewed. c. 9/8/09 - Rinse off area inclusion is not required. Exhibit J MmHaahs Ms. Tracey Bruch Surf Style/Brill'$ Parking Garage October 30, 2009 Page 5 Architectural Provisions 1) Stairtowers/Elevator towers a. ADA compliant design and layout b. Enclosure at top level for elevator tower for weather protection i. Post Meeting - Finfrock shall confirm an enclosure is included for punch-thru stair at SW comer of top level. ii. 10/2/09 Finfrock Response -A standing seam metal roof will be provided over the stair. Updated Response - A standing seam roof structure without side glazing will be located over the SW stair, and will be added to the necessary elevations. c. Maximize openness within stairtowers for increased visibility i. Comment - This can not be accomplished on North Stairtower due to proximity of adjacent building. ii. Response - Provide maximum openness (actual opening or glazing) to greatest extent at both interior and exterior, where fire rating is not required. Will comment further once plans are received and reviewed. iii. 9/8/09 Discussion - Due to fire rating, no openings will be provided internal to the garage. Maximized openness will be provided to the exterior, where fire rating is not required. d. Include glass back elevators for increased visibility i. Comment - The elevator shaft is located in the interior of the building, which from a design standpoint would not benefit from the advantages of a glass back elevator (i.e. allow natural light to penetrate). In regard to security we will be including a CCTV system, ii. Response - Provide glass back openings for visibility within garage to increase passive security. iii. 9/8/09 Discussion - Elevator layout has been rotated with the elevator doors facing north, increasing visibility to the elevator lobby area. Post Meetincr - Finfrock shall review drainage pattern for positive slope away from elevator shaft. e. Galvanized steel handrails i. Comment - We have included powder coated aluminum handrails. ii. Response - This is acceptable. f. Abrasive nosings cast into stair treads i. Comment - We do not include these on our stairs. Our stairs have been tested and been determined that to meet or exceed the requirements for slip- resistant surfaces in stairs. in addition, abrasive nosings can become a maintenance issue ii. Response - Provide information to confirm equal slip resistance is achieved. Provide sample of stair treads for review and approval. iii. 9/8/09 Discussion - Finfrock provided a friction test completed by PSI. This is found acceptable. g. Enclose bottom run of stairs at ground level to eliminate hiding places i. Comment - The exterior of the stair towers are enclosed at the ground level, however the space beneath the stairs inside the stairtowers is open, ii. Response - Enclose area below bottom run of stairs with CMU. Exhibit' TimHaahs Ms. Tracey Brush Surf Style/Britt's Parking Garage October 30. 2009 Page 6 2) Elevators a. Hydraulic type, minimum of two cabs i. Comment - We are providing two machine-room-less traction elevators ii. Response -- This is acceptable. b. Vandal resistance cab, hoistway, fixture finishes (i.e. textured stainless steel) c. Emergency call equipped d. Tied into the emergency power source i. Comment - No emergency power source included or required by Code. ii. Response - Confirm requirement for elevators serving structures 4 or more levels, iii. 9/8109 Discussion - Confirmed requirement not included per FBC. Finfrock will investigate pricing for providing a generator. Action: Item open for further discussion. iv. 10/2/09 Finfrock Response - Finfrock has provided a cost to the Owner to provide a generator to power the following: All garage lighting, public corridor lighting, one elevator, point of sale; and half of all retail lighting. e. Durable floor system (i.e. continuous vinyl tile) 3) Signage a. Adequate wayfinding signage for both vehicles and pedestrians. b. Consider implementing a floor theme to aid patrons in remembering their vehicle location. c. Scotchlite reflective signs i. Comment - Reflective signs will be utilized where required. ii. Response - All wayfinding signs shall be reflective. Structural Provisions 1) Corrosion protection methods in line with ACI 362 2) Galvanized steel precast connections that are protected by grout or cast-in-place toppings or washes 3) Stainless steel precast connections (i.e. tee to tee) that are protected by sealant alone 4) Minimize exposed welded or bolted connections 5) Concrete slab-on-grade with tooled joints and vapor barrier beneath occupied areas 6) Tooled joints with sealants in cast-in-place toppings or washes Waterproofing Provisions 1) Expansion joints located at high points 2) Compressible filler material at vertical expansion joints between garage and stairtowers, such as an Emseal Colorseal product 3) Elastomeric deck coating above all occupied spaces and MEP rooms a. Commen - We have included an Auto-Gard polyurethane vehicular traffic deck coating produced by Neogard over all occupied spaces that carries a 10 year Joint and Several Warranty b. Response - This is acceptable for areas within the footprint of the garage. Exhibit J MmHaahs Ms. Tracey Bruch Sur( Style/Britt's Parking Garage October 30, 2009 Page 7 4) Treat the exposed ramp as a plaza deck to provide increased waterproofing protection for occupied space below a. Comment - We have included an Auto-Gaul polyurethane vehicular traffic deck coating produced by Neogard over all occupied spaces that carries a 10 year Joint and Several Warranty b. Response - Provide canopy or roof above exterior ramp to eliminate direct rainfall onto tees above occupied space, in addition to deck coating. Providing a warranty does not guarantee water leakage into the occupied space will not occur. c. 9/8/09 Discussion - Finfrock provided Autogard waterproofing product data utilized for a similar condition. Finfrock and City of Clearwater will further discuss addressing maintenance and potential leak repairs as part of the Maintenance Agreement. Action - Item open for further discussion. d. 10/30/09 TimHaahs Response - On October 15, 2009, TimHaahs visited the Publix parking garage in Fort Lauderdale to observe a deck coating applied above an occupied floor. It should be noted that the deck coating was located on the floor below the roof level. TimHaahs found it acceptable to utilize the deck coating provided that a flood test (i.e. 24 hour) shall be included in the specifications for final approval. Exhibit J TimHaahs Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30. 2009 Page 8 Plumbing Provisions 1) Cold water risers and hose bibs at each parking level for garage washdown 2) Sufficient slope on floor members and an adequate number of floor drains on all levels to negate any areas of water ponding 3) Floor drains used specifically for parking structures, such as Watts FD-900 epoxy coated models or equal a. Comment - Storm Drainage of the upper decks will utilize Slot Drains fastened below the double tee flange, with the entrance a %" wide joint between the double tee flanges. b. Reams o-nse - Provide a conventional drain system use for parking structures in lieu of a gutter type system. Gutter type system poses maintenance concerns. c. 9/8/09 Discussion - Finfrock provided details for the typical tier and roof tier gutter system. A minimum gap of Y2" will be maintained for heel protection and Finfrock has remedial details to address a larger gap. Action - TimHaahs will visit locations in the MIA area containing installed gutters for evaluation. Item remains open. d. 10/30/09 TimHaahs Response - On October 15, 2009 TimHaahs visited the Mercy Hospital in Miami to observe the installed gutter drain system. The drainage system was found acceptable with the following provisions: i. Include regular cleaning of the drain slots as part of the routine maintenance program to ensure effectiveness of the system ii. At the top tier, joints will be sized accordingly to accommodate the rainfall and metal grates will be installed over larger joints. iii. Cleanouts in the steel gutter shall be provided for access. 4) Galvanized steel pipe guards for any exposed risers for bumper guard protection a. Comment - We will provide bumper guard protection of pipes as needed. b. Response - Bumper guards will be provided for all risers subject to vehicles. 5) Storm retention system shall be easily accessible for maintenance Fire Protection Provisions 1) Portable fire extinguishers as required by NFPA 10 Standard for Portable Fire Extinguishers 2) Fully sprinklered parking garage 3) Galvanized steel pipe guards for any exposed risers for bumper guard protection Electrical Provisions 1) Lighting levels a. Meet or exceed current minimum IES standards b. Parking/Drive aisles- 10 fc (minimum average) i. Comment - We have provided 4 fc average, with a 10/1 Max/Min Ratio ii. Response - Provide a minimum of 5-6 fc average. c. Vehicular Entry/Exits - 50 fc (minimum average) i. Comment - Lighting will meet the requirements of IES RP-20 ii. Response - This is acceptable. Exhibit J TimHaahs Ms. Tracey Brush Surf Style/Britt's Parking Garage October 30. 2009 Page 9 d. Stairtowers/Lobby interiors/Ground level retail areas and corridors - 20 fc (minimum average) i. Comment - Lighting will meet the requirements of IES RP-20 ii. Response - This is acceptable. e. Provide additional lighting at any interior shearwalls i. Comment - Lighting will meet the requirements of IES RP-20 ii. Response -- This is acceptable. f. Emergency lighting to meet Code requirements i. Response - Confirm provision for this requirement. See item 7 below. g. Provide photometrics of light levels listed above i. 9/8/09 Discussion - Finfrock will submit for review upon completion. ii. 10/2109 Finfrock Response - Preliminary photometrics were submitted on 9/28/09 to the City of Clearwater and TimHaahs. Final Photometrics will be submitted during the Final Design Phase. 2) Lighting fixture a. Fluorescent type fixtures with uplight component i. Comment - Fixtures compliant with Sea Turtle Lighting Restrictions will be utilized. ii. Response - This is acceptable. iii. 9/8/09 - High pressure sodium fixtures will be utilized for compliance with Sea Turtle Lighting Restrictions. 3) Lighting control system a. Programmable lighting control system for time and date control of light fixtures b. Photocells for controlling perimeter lighting and vehicular entry/exit areas. 4) Receptacles a. Weather proof enclosed types located at each stairtower and elevator lobby, each level 5) Conduit a. No placement within expansion joints. b. Expansion capacity when crossing an expansion joint c. Exposed conduit on the exterior of the garage is not permitted 6) Security System a. Consider implementation of a CCTV system with camera placement on all levels of the parking garage, specifically at Stairtower locations and the ground level, specifically at the retail corridor and vehicular entry/exits. 7) Emergency Power a. Backup power (i.e. generator) for ground level occupancy, elevators, and lighting fixtures i. Comment - No emergency power source included or required by Code. ii. Response - FBC 1006.1 Means of Egress Illumination requires emergency lighting. Confirm means of providing backup power (i.e. battery, generator) Exhibit J TimHaahs Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 10 iii. 9/8/09 Discussion -Separate "bug-eye" fixtures with individual batteries will provide emergency lighting. Maintenance of emergency fixtures shall be included in the Maintenance Agreement. b. 10/30/09 TimHaahs Response - Reference Architectural Provisions section 2d-iv for generator inclusion. Parking System Provisions 1) Pay-on-foot complete parking equipment system including barrier gates, ticket spitters, detector loops, pay stations (minimum of two), etc. 2) Adequate signage to inform patrons of the payment method to include signage locations throughout the parking garage on all floors and near the pay stations 3) Electronic signs at reversible lanes 4) Parking office including ADA compliance, HVAC conditioning, restroom, telephone, internet, customer service window, etc. Exhibit J TimHaahs Ti m Haa www.timhaahs.corn .. ENGINEE S AR HI E T TIMOTHY HAAHS & ASSOCIATES, INC. 10305 N.1N 41'",S)I RF?SUITE 201 MIAMI, FL 33178 T. 305 592-71 23 F 305 5927'113 January 20, 2010 OPERATIONAL MAINTENANCE SCHEDULE DESCRIPTION ACTION FREQUENCY ELECTRICAL SYSTEM, Light Fixtures Inspect Monthly Relam As Required Exit & Emergency Inspect Monthly Lights Service As Required Distribution Panels Inspect Semi-Annually Electrical Conduit Inspect Semi-Annually Replace As Required SEC RIT'Y EQUIPMENT r' --- ;; ' Phones, Emergency Call Buttons Inspect Weekly Service As Required ?MWHL, A MEAL EQUIPME T Elevators Inspect Per Service Agreement - Define Timeframe Service Per Service Agreement - Define Timeframe Ventilation/Exhaust Inspect Monthly Fans Service Per Manufacturer's Recommendation Fire Protection Equip. Inspect Annually Replace As Required Landscape Irrigation System Inspect As Required Re air/Clean As Required Manholes, Sump Pits, Storm Retention Inspect Annually System And Drain Pits Re air/Clean As Required Other Mechanical Inspect Monthly Equipment (Including Generator) Service As Re uired GRA ICS:& FLOOR STRIPING Signs Ins ect Semi-Annually Repair As Required Striping Inspect Semi-Annually Repair As Required ,CLEANING REQUIREMENTS' ;I Stairs, Curtainwall, and Clean/Sweep Dail Storefront Systems Washdown Semi-Annually Parking Area Sweep Weekly Floors Washdown Semi-Annually Expansion Joint Seals Clean Quarter) DRAINAGE Floor Drains Inspect Dail Clean Monthly Ponded Water Remove As Required INSPECTION Tripping Hazards And Safety Check Inspect Daily Comprehensive Walk-Through Perform Annually Exhibit K PLANNING ENGINCERING ARCHITECTURE PARKING Ms. Tracey Bruch Surf Style/Britt's Parking Garage January 20, 2010 Page 2 STRUCTURAL MAINTENANCE SCHEDULE DESCRIPTION ACTION FREQUENCY CONCRETE FLQOR,SYSTEM Visual Inspection Perform Annually Delamination and/or Materials Testing Perform Annually Joint Sealant Inspect Semi-Annually Repair As Required Traffic Topping Inspect Semi-Annually Repair As Required Random Cracks Rout and Seal As Required BEA . S'.''"+ OLU NS'ANQ l3UMP.Ekl " 'L'LS ; ". Visual Inspection Perform Annually ,ST , OWERS ;. Visual Inspection Perform Annually Storefront and Curtainwall System Inspect Annually JOINT st-ALANT S,Y,,STEMS Expansion Joints, Construction Joints Inspect Semi-Annually , Control Joints, and Traffic Deck Coating Replace Leaking Joints As Required; All Joints Every 8-12 Years EXPQSEp STEEL`" Inspect Annually i ' Clean and Paint As Required s°MASONY; ! a Inspect Annually ` j Clean As Required !',. Apply Sealer Per Engineer's Recommendation BEARING PADS;, ,, Inspect Annually ;INSPECTION Perform Annually By Structural Engineer Exhibit K TimHaafts Ms. Tracey Bruch Surf Style/Britt's Parking Garage January 20, 2010 Page 3 AESTHETIC MAINTENANCE SCHEDULE DESCRIPTION ACTION FREQUENCY GENERAL'APPEARANCE Trash Pickup Dail General Cleaning Clean Weekly Windows Wash Quarterly J,n LANDSCAPING' i Grass Mow Weekly Shrubs Trim As Required Trees Prune Annually PAINTED pFt sTA1NED , Inspect Semi-Annually SUI?PACS Touch Up Semi-Annually Clean and Repaint As Required ARCHITECTURAL,,SEALANTS Inspect Annually Replace Failed Joints As Required; All Joints Every 5-12 Years Exhibit K TimHaa s PUT AGREEMENT (Surf Style Condominium - Parking Unit) THIS PUT AGREEMENT (Surf Style Condominium - Parking Unit) (the "Agreement") is made and entered into as of this day of , 20_, by and between , a (the "Lender'), and THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the RECITALS: A. The City and L.O.M., Inc., a Florida corporation (the "Developer") have entered into that certain Agreement for Development of Property in the City of Clearwater (Surf Style Condominium Project) dated , 2010 (the "Development Agreement"). The Development Agreement sets forth the terms and conditions governing the development and construction of a 41,000+/- square foot retail/commercial project, including a parking garage containing approximately 349 parking spaces, of which 300 spaces will be open to the public (collectively, the "Project"), on certain real property located on South Gulfview Boulevard in the City of Clearwater, Florida, more particularly described in Exhibit A attached hereto (the "Pro pert "). B. The Development Agreement contemplates that the Property will be submitted to the condominium form of ownership pursuant to Chapter 718 of the Florida Statutes and condominium documents in substantially the form attached to the Development Agreement as Exhibit D. The condominium will be known as "Surf Style Condominium" and will contain three (3) units, two (2) "Retail Units" and one (1) "Parking Unit", as defined and described in Section 2.3 of the Development Agreement. C. Pursuant to Section 6.01 of the Development Agreement, the City agreed to enter into a "put" agreement with Developer's lender providing construction financing for the Project, pursuant to which such lender would have the option to require the City to purchase the Parking Unit (defined below) under certain circumstances in the event it acquired title to the Project following an event of default by Developer. D. Contemporaneously herewith, Lender is making a loan to Developer to finance the development and construction of the Project (as amended, restated, assigned and renewed from time to time, the "Project Financing"). Lender has required as a condition to the closing of the Project Financing, inter alia, that the City agree to purchase the Parking Unit under certain circumstances in the event Lender acquires title to the Project under the Project Financing documents (through foreclosure, deed in lieu of foreclosure or otherwise) following an event of default by Developer under the Project Financing. E. This Agreement constitutes the (and satisfies the requirement for a) "put" agreement between Lender and the City as contemplated by the Development Agreement and the Project Financing documents, pursuant to which the City has agreed to purchase the Parking Unit from Lender, subject to and upon the terms and Exhibit L MIA 180,691,006v72-8-10 conditions hereinafter set forth. At a duly called public meeting on , 2010, the City Commission approved this Agreement and authorized and directed its execution by the appropriate officials of the City. Likewise, the appropriate shareholders, directors and/or officers of Lender have approved this Agreement and have authorized certain individuals to execute this Agreement on its behalf. NOW, THEREFORE, in consideration of the mutual covenants and promises herein set forth, the parties agree that the foregoing recitals are true and correct and further agree as follows: 1. Put Option. If, following the Completion Date (as defined in the Development Agreement) and prior to the date which is five (5) years following the completion of the Project (the "Put Trigger Deadline"), an event of default by Developer occurs under the Project Financing, Lender may require the City to purchase from Lender the parking unit delineated on Exhibit A-1 attached hereto (the "Parking Unit") in Surf Style Condominium, a Condominium, according to the Declaration of Condominium recorded or to be recorded in the Public Records of Pinellas County, Florida (as amended and supplemented from time to time, the "Declaration"), subject to the terms and conditions of this Agreement, including without limitation the "Put Conditions" (defined below). Lender shall exercise the foregoing right to "put" the Parking Unit to the City by written notice (the "Put Trigger Notice") to the City provided in accordance with paragraph 12 of this Agreement, provided that the Put Trigger Notice is sent to the City prior to the Put Trigger Deadline. The form of the Put Trigger Notice is attached hereto as Exhibit B. For purposes hereof, the Project shall be deemed complete when conditional or final certificate(s) of occupancy have been issued for the entire Project. The Parking Unit shall include an undivided interest in the common elements appurtenant thereto as described in the Declaration. Notwithstanding any provision in this Agreement to the contrary, the City's obligation to purchase the Parking Unit shall be subject to the following conditions (collectively, the "Put Conditions"): (a) Lender shall have acquired title to the Project through foreclosure, deed in lieu of foreclosure or otherwise following an event of default by Developer under the Project Financing documents; (b) A certificate of occupancy shall have been issued for the Parking Unit; (c) The Project shall have been submitted to the condominium form of ownership under Chapter 718 of the Florida Statutes and the Declaration shall have been recorded in the Public Records of Pinellas County, Florida; (d) The Parking Unit shall be substantially in the condition required under Exhibit J to the Development Agreement; and 2 MIA 180, 691, 006v7 2-8-10 (e) Lender shall provide written notice (the "Put Conditions Notice") to the City certifying that the Put Conditions set forth in clauses (a) through (d) above have been satisfied. The form of the Put Conditions Notice is attached hereto as Exhibit B-1 and shall be provided to the City in accordance with paragraph 12 of this Agreement. Lender and the City acknowledge and agree that this Agreement shall be null and void, and of no force and effect, if either Lender has not provided the Put Trigger Notice to the City by the Put Trigger Deadline or any of the Put Conditions are not met by the date which is six (6) years following completion of the Project (the "Put Outside Date"). 2. Purchase Price. The purchase price to be paid by the City to Lender for the Parking Unit is Nine Million Three Hundred Thousand and No/100 Dollars ($9,300,000.00) (the "Purchase Price"), subject to adjustments and prorations as provided herein. The proceeds of the Purchase Price will be applied by Lender to the principal balance of the Project Financing, and any fees, costs, interest, penalties and/or other charges or sums accrued thereon or due thereunder. 3. Terms of Payment. The Purchase Price shall be paid to Lender as follows: $ 9,300,000.00 approximately, in current funds at time of Closing, subject to adjustments as provided in paragraph 2 and subject to prorations and adjustments as hereinafter provided, to be paid by cashier's check or by wire transfer of federal funds. $ 9.300.000.00 Total Purchase Price, subject to adjustment as provided in paragraph 2. 4. Condition of Title. At the Closing, fee simple title to the Parking Unit shall be conveyed to the City by special warranty deed, subject to the following matters: (a) ad valorem real estate taxes for the year of Closing and subsequent years; (b) the Development Agreement (if still in effect); (c) the Declaration and other condominium documents; (d) the parking covenant contemplated by Section 2.03(3) of the Development Agreement; (e) the covenants, restrictions, easements and other exceptions specifically identified on Exhibit C attached hereto; (f) all laws, ordinances, regulations, restrictions, prohibitions and other requirements imposed by governmental authority, including, but not limited to, all applicable building, zoning, land use and environmental ordinances and regulations; (g) matters affecting the condition of title to the Property (or any part thereof) created by or with the written consent of the City; and (h) any other exceptions or matters recorded against the Property (or any part thereof) after the date of this Agreement with respect to the development, construction, operation and management of the Project (such as reservations, covenants, utility easements, reciprocal easement agreements and any amendments or supplements thereto) and which do not adversely affect the ownership or operation of the Parking 3 MIA 180,691,006v72-8-10 Unit. Title to the Parking Unit will be conveyed to the City at Closing free and clear of any mortgage, lien or other encumbrance securing the Project Financing. 5. Closing. The closing (the "Closing") shall be held on the date which is sixty (60) days following the City's receipt of the Put Conditions Notice, provided that the City shall have no obligation to purchase the Parking Unit and close this transaction if the Put Conditions Notice is not delivered or Put Conditions are not met by the Put Outside Date as provided in paragraph 1 above. Closing shall take place at the offices of attorneys for Lender, located at , Florida , or through an escrow with Lender's attorneys whereby Lender, the City and their attorneys need not be physically present at Closing and may deliver documents by courier or other means. (a) At Closing, Lender shall execute and deliver to the City the following Closing documents: (i) a special warranty deed in the form attached hereto as Exhibit D, subject only to the Permitted Exceptions (defined below); (ii) a customary and appropriate mechanic's lien affidavit, affidavit of exclusive possession, "gap" affidavit, and non-foreign affidavit and/or certificate pursuant to subparagraph 8(a)(iv) below; and (iii) appropriate evidence of Lender's formation, existence and authority to sell and convey the Parking Unit, including a partner or member consent, corporate resolution and/or such other evidence of authority and good standing (as appropriate) with respect to Lender as may be reasonably required by the title insurance company issuing title insurance covering the Parking Unit in favor of the City. (b) At Closing, Lender and the City shall each execute counterpart closing statements and such other documents as are reasonably necessary to consummate the transaction contemplated by this Agreement. 6. Prorations: Utilities. (a) Prorations Generally. Real estate and personal property taxes, costs and revenues and all other proratable items for the Parking Unit shall be prorated as of the date of Closing, except that all current, pending and/or levied condominium assessments or fees which were enacted, approved or originated prior to Closing shall be paid by Lender. The City shall pay assessments and fees levied after the Closing date. For purposes of this provision, the term "levied" shall mean when the Board of the Condominium Association or required Unit Owners or both have voted in accordance with Florida law and the Declaration to approve an assessment or fee. All capitalized terms used in this provision without 4 MIA 180,691,006x72-8-10 definition in this Agreement shall have the meanings given to them in the Declaration. (b) Taxes. In the event real estate and personal property taxes for the year of Closing are unknown, the tax proration will be based upon the taxes for the prior year, and at the request of either parry, the taxes for the year of Closing shall be reprorated and adjusted when the tax bill for such year is received and the actual amount of taxes is known. If the Parking Unit is included within the tax identification folio number for the balance of the Property at the time of Closing (or at the time of reproration hereunder), then, for purposes of allocating real estate taxes and assessments during the calendar year of Closing to the Parking Unit, the parties agree that the share of such real estate taxes and assessments attributable to the Parking Unit shall be equal to the product of (a) the aggregate real estate taxes and assessments determined to be due for the entire Property for the year of Closing, multiplied by (b) the percentage interest of common elements allocated to the Parking Unit under the Declaration. (c) Utilities. With respect to electricity, water and sewer services and other utilities (collectively, "Utilities"), the parties shall endeavor to have the respective companies providing the Utilities read the meters for the Utilities on or immediately prior to the Closing date. Lender shall be responsible for all charges based on such final meter reading, and the City shall be responsible for all charges relating to the Parking Unit thereafter. If such readings are not obtainable, then, until such time as readings are obtained, charges for all Utilities for which readings were not obtained shall be prorated as of the Closing date based upon the per diem rate obtained by using the last period and bills for such Utilities that are available. Upon the taking of a subsequent actual reading, such apportionment shall be adjusted and reprorated to reflect the actual per diem rate for the billing period prior to Closing and Lender or the City, as the case may be, shall promptly deliver to the other the amount determined to be due with respect to the Parking Unit upon such adjustment. To the extent Utilities are not separately metered to the Parking Unit, a fair and equitable portion of such Utilities shall be allocated to the Parking Unit (for the initial proration and any subsequent reproration) using the same the methodology for cost allocation of utilities between condominium units provided in the Declaration. The provisions of this paragraph shall survive the Closing. 7. Closing Costs. The Lender shall pay the cost of documentary stamps due on the special warranty deed and recording costs for the deed. The Lender shall be solely responsible for the cost of examining title and obtaining the title insurance policy update or report on the Parking Unit, and the premiums and any other related fees and costs for any owner's title insurance policies update and/or report. Each party shall pay its own legal fees except as provided in subparagraph 15(c) below. All other closing 5 MIA 180, 691, 006v7 2-8-10 costs shall be apportioned in the manner customary for commercial for real estate transactions in Pinellas County, Florida. 8. Representations and Warranties. (a) Lender represents and warrants to the City and agrees with the City that each of the following statements is currently true and accurate and shall be true and accurate at the time of closing, and agrees that the City may rely upon each of the following statements: (i) Lender is a validly existing national banking association, and has all requisite 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. (ii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, each document contemplated or required by this Agreement to which Lender 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, Lender, 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 Lender, or (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 Lender 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 Lender is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of Lender outstanding on the date of this Agreement. (iii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, each document contemplated or required by this Agreement to which Lender is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of Lender enforceable against Lender 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. 6 MIA 180, 691, 006v7 2-8-10 (iv) Lender is not a "foreign person" within the meaning of the United States tax laws and to which reference is made in Internal Revenue Code Section 1445(b)(2). At Closing, Lender shall deliver to the City an affidavit to such effect, and also stating Lender's tax identification number. Lender acknowledges and agrees that the City shall be entitled to fully comply with Internal Revenue Code Section 1445 and all related sections and regulations, as same may be modified and amended from time to time, and Lender shall act in accordance with all reasonable requirements of the City to effect such full compliance by the City. (b) The City represents and warrants to Lender and agrees with Lender that each of the following statements is currently true and accurate and shall be true and accurate at the time of closing, and agrees that Lender may rely upon each of the following statements: (i) The City is a validly existing body corporate and politic of the State of Florida, and has all requisite 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. (ii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, each document contemplated or required by this Agreement to which the City is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the City, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the City, or (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 date of this Agreement. (iii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, 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, 7 MIA 180,691,006v72-8-10 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. (iv) The City will establish Capital Improvement Project 315-9xxxx (Surf Style Condominium - Parking Unit) and will transfer the amount of $9,300,000 to this project to be used only for the purposes expressly provided herein. The $9,300,000 project is earmarked for the purchase of the Parking Unit by the City under the terms and conditions of this Agreement during the term hereof. Accordingly, from and after the date of this Agreement throughout the entire term hereof, the City shall maintain the $9,300,000 balance in this project, and shall not spend any portion of such funds for any purpose (other than the purchase of the Parking Unit) for so long as the City's obligations under this Agreement remain in effect. The resolution of the City Commission approving this Agreement shall specifically approve the foregoing $9,300,000 project on the terms stated herein and direct the Office of Management and Budget to insure the reserve is maintained on all appropriate operating plans, budgets and accounts of the City. Notwithstanding any provision in this Agreement to the contrary, if the City breaches its obligations under this provision at any time during the term of this Agreement (whether before or after the date of the Put Conditions Notice), Lender shall have all rights and remedies available to it at law and in equity with respect to such breach, including without limitation the right to specific performance of the City's obligations hereunder. All of the foregoing representation and warranties shall be true and correct on the date of this Agreement and on the date of Closing. The provisions of this paragraph shall survive the Closing. 9. Default Provisions. The following default provisions shall apply to any default by a party under this Agreement after the date of the Put Conditions Notice: (a) City Default. In the event of a default by the City under this Agreement which is not cured within ten (10) days following written notice from Lender, Lender shall have the right to: (i) terminate this Agreement, whereupon the parties shall be released from all further obligations under this Agreement, except the obligations which by their express terms survive a termination, or, alternatively, (ii) seek specific performance of the City's obligations hereunder and/or any other equitable remedies, without thereby waiving damages. In addition to the foregoing, if the City defaults in the payment of any amount due to Lender hereunder, then such unpaid 8 MIA 180,691,006v72-8-10 amount shall accrue interest at the per annum rate of eighteen percent (18%) accruing from the date of such default. (b) Lender Default. In the event of a default by Lender under this Agreement which is not cured within ten (10) days following written notice from the City, the City at its option shall have the right to: (i) terminate this Agreement, whereupon the parties shall be released from all further obligations under this Agreement, except the obligations which by their express terms survive a termination, or, alternatively, (ii) seek specific performance of Lender's obligations hereunder and/or any other equitable remedies, without thereby waiving damages. 10. Brokers. The parties each represent and warrant to the other that they have not dealt with any real estate broker, salesman or finder in connection with this transaction. If a claim for brokerage in connection with the transaction is made by any broker, salesman or finder claiming to have dealt through or on behalf of one of the parties hereto ("Indemnitor"), Indemnitor shall indemnify, defend and hold harmless the other party hereunder ("Indemnitee"), and Indemnitee's members, shareholders, partners, officers, directors, employees, agents and representatives, from all liabilities, damages, claims, costs, fees and expenses whatsoever (including reasonable attorney's fees and court costs at trial and all appellate levels) with respect to said claim for brokerage. The provisions of this paragraph shall survive the Closing and any cancellation or termination of this Agreement. 11. Assignability. The City shall not be entitled to assign this Agreement, or its rights or obligations hereunder, without the prior written consent of Lender, which may be granted or withheld in Lender's sole discretion. Lender shall be entitled to freely assign this Agreement (including all of its rights and obligations hereunder) without restriction; provided, however, that the assignee shall assume all obligations of Lender hereunder. 12. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by facsimile transmission, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: 9 MIA 180,691,006v72-8-10 If to the City at: City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager Fax. No. With a copy to: Pamela K. Akin, Esq. Clearwater City Attorney 112 S. Osceola Avenue Clearwater, FL 33756 Fax No. (727) 562-4021 If to Lender at: Attn: Fax No. With a copy to: Attn: Fax No. Notices personally delivered, sent by facsimile transmission or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails. Each party shall be entitled to change its address for notices from time to time by delivering to the other party notice thereof in the manner herein provided for the delivery of notices. 13. Risk of Loss. If, between the date of the Put Conditions Notice and Closing, the Parking Unit or any portion thereof is damaged or destroyed by fire or other casualty or taken by eminent domain, Lender shall promptly repair and restore the Parking Unit to the same condition as existed before the fire or casualty and Closing shall be deferred for a commensurate period of time to permit such repair and restoration. In such event, Closing shall be rescheduled to the date which is ten (10) days following the restoration of the Parking Unit to the condition that existed immediately prior to the damage or taking (or as close to such condition as possible, in the case of eminent domain) and issuance of a new certificate of occupancy for the Parking Unit (if such restoration requires same). In the case of eminent domain, at Closing, the City shall be entitled to all condemnation awards for the Parking Unit, less any portion thereof used to restore the Parking Unit to the condition required herein. 14. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state 10 MIA 180,691,006v72-8-10 guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department. 15. Miscellaneous. (a) This Agreement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. (b) In the event any term or provision of this Agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. (c) In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. The provisions of this subparagraph shall survive the Closing coextensively with other surviving provisions of this Agreement. (d) In construing this Agreement, the singular shall be held to include the plural, the plural shall include the singular, the use of any gender shall include every other and all genders, and captions and paragraph headings shall be disregarded. Handwritten or typewritten provisions initialed by Lender and the City shall prevail over any conflicting printed provisions of this Agreement. (e) All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. (f) Time shall be of the essence for each and every provision hereof. (g) If any date upon which, or by which, action required under this Agreement is a Saturday, Sunday or legal holiday recognized by the Federal government, then the date for such action shall be extended to the first day that is after such date and is not a Saturday, Sunday or legal holiday recognized by the Federal government. (h) This Agreement constitutes the entire agreement between the parties and there are no other agreements, representations or warranties with respect to the subject matter hereof other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by City and Lender. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. 11 MIA 180,691,006v72-8-10 (i) This Agreement may be executed in multiple counterparts each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURES ON FOLLOWING PAGE(S)] 12 MIA 180, 691, 006v7 2-8-10 EXECUTED as of the date first above written. WITNESSES: LENDER: ,a By: Print Name: Name: Title Print Name: CITY: Attest: THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: Cynthia Goudeau, City Clerk By: Approved as to form: Pamela K. Akin City Attorney Frank V. Hibbard, Mayor 13 MIA 180, 691,006v7 2-8-10 EXHIBIT A LOM 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 FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°15'44"E a distance of 35.00 feet to the Point of Beginning. EXHIBIT A-1 Delineation of Parking Unit The "Unit" delineated as the "Parking Unit" in the Declaration. MIA 180,691,006v72-8-10 EXHIBIT B Form of Put Trigger Notice [INSERT LETTERHEAD OF LENDER] 20_ VIA [ ] City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager Fax. No. City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Attorney Fax No. Re: Put Trigger Notice under Put Agreement (Surf Style Condominium - Parking Unit) dated -,20 _ (as amended, modified, assigned and supplemented from time to time, the "Put Agreement") by and between , its successors and assigns (the "Lender'), and the City of Clearwater, Florida, a Florida municipal corporation (the "City") Dear Sir or Madam: Please accept this letter as Lenders official notice to the City that an event of default has occurred under the Project Financing documents and Lender hereby elects to "put" the Parking Unit to the City. This Put Trigger Notice is being provided to the City in accordance with the terms and conditions of the Put Agreement, including, without limitation, the requirement for delivery of the Put Trigger Notice prior to the Put Trigger Deadline under paragraph 1 thereof. Please acknowledge the City's receipt of this Put Trigger Notice by signing the acknowledgment below and returning the original to my attention as soon as possible. Please note that capitalized terms not defined herein shall have the meanings provided in the Put Agreement. If you have any questions or wish to discuss the Closing, please contact me. Sincerely, [insert signature block for Lender] By: Name: Title: [Acknowledgment On Next Page] MIA 180,691,006v72-8-10 Agreed and Accepted on this - day of , 20_ Attest: THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: By: City Clerk , Mayor Approved as to form: City Attorney MIA 180,691,006v72-8-10 EXHIBIT B-1 Form of Put Conditions Notice [INSERT LETTERHEAD OF LENDER] 20_ VIA f 1 City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager Fax. No. City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Attorney Fax No. Re: Put Conditions Notice under Put Agreement (Surf Style Condominium - Parking Unit) dated _, 20_ (as amended, modified, assigned and supplemented from time to time, the "Put Agreement") by and between , its successors and assigns (the "Lender"), and the City of Clearwater, Florida, a Florida municipal corporation (the "City") Dear Sir or Madam: As you know, Lender exercised its right to "put" the Parking Unit to the City by that certain Put Trigger Notice dated , 20_ This Put Conditions Notice is being provided to the City in accordance with the terms and conditions of the Put Agreement, including, without limitation, the requirement for delivery of the Put Conditions Notice prior to the Put Outside Date. As required under paragraph 1 of the Put Agreement, Lender hereby certifies that all of the Put Conditions in the Put Agreement have been met before the Put Outside Date. Accordingly, the closing for the Parking Unit shall occur within sixty (60) days following the City's receipt of this Put Conditions Notice and the parties shall close on the purchase and sale of the Parking Unit, subject and pursuant to the terms and conditions provided in the Put Agreement. Please acknowledge the City's receipt of this Put Conditions Notice by signing the acknowledgment below and returning the original to my attention as soon as possible. Please note that capitalized terms not defined herein shall have the meanings provided in the Put Agreement. If you have any questions or wish to discuss the Closing, please contact me. Sincerely, [insert signature block for Lender] By: Name: Title: [Acknowledgment On Next Page] MIA 180,691,006x72-8-10 Agreed and Accepted on this - day of , 20_ Attest: By: , City Clerk Approved as to form: City Attorney THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: Mayor MIA 180,691,006v72-8-10 EXHIBIT C Existing Title Exceptions 1. Rights, if any, of the public to use as a public beach or recreation area any part of the land lying between the body of water abutting the subject property and the natural line of vegetation, bluff, extreme high water line, or other apparent boundary line separating the publicly used area from the upland private area. 2. Rights of the State of Florida based on the doctrine of the state's sovereign ownership of lands lying below the mean high water line of any navigable or tidally influenced waters. 3. Rights of the United States government, arising by said government's control over navigable waters involving navigation and commerce, with respect to any portion of the Property which is artificially filled land in what was formerly navigable waters. 4. Coastal Construction set back line as established by Section 161.052 and Section 161.053, Florida Statutes. 5. Easements, claims of easements, boundary line disputes, overlaps, encroachments or other matters not shown by the public records which would be disclosed by an accurate survey of the Property. MIA 180,691,006v72-8-10 EXHIBIT D Form of Special Warranty Deed THIS INSTRUMENT PREPARED BY (OR UNDER THE SUPERVISION OF) AND AFTER RECORDING SHOULD BE RETURNED TO: NAME: ADDRESS: SPACE RESERVED FOR CLERK OF COURT Tax Folio No.: [a portion of] SPECIAL WARRANTY DEED THIS SPECIAL WARRANTY DEED is made and entered into as of the day of 20? by whose mailing address is ("Grantor"), to THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation, whose mailing address is 112 S. Osceola Avenue, Clearwater, Florida 33756, Attn: City Manager ("Grantee"). Wherever used herein, the terms "Grantor" and "Grantee" shall include all of the parties to this instrument and their successors and assigns. WITNESSETH: GRANTOR, for and in consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has granted, bargained and sold, and by these presents does hereby grant, bargain and sell to Grantee and Grantee's successors and assigns forever, the following described land situate and being in Pinellas County, Florida (the "Pro a "), to wit: Parking Unit in SURF STYLE CONDOMINIUM, a Condominium, according to the Declaration of Condominium thereof, as recorded in Official Records Book Page , of the Public Records of Pinellas County, Florida (as amended and supplemented from time to time), together with an undivided interest in the common elements appurtenant thereto. TOGETHER WITH all the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining. THIS CONVEYANCE is subject to: (a) taxes and assessments for the year 20_„ and all subsequent years; (b) all laws, ordinances, regulations, restrictions, prohibitions MIA 180, 691, 006v7 2-8-10 and other requirements imposed by governmental authority, including, but not limited to, all applicable building, zoning, land use and environmental ordinances and regulations; (c) conditions, restrictions, limitations and easements of record, if any, but this reference shall not operate to reimpose same; and (d) Parking Covenant dated , 20_ and recorded in Official Records Book , Page of the Public Records of Pinellas County, Florida. TO HAVE and to hold the same in fee simple forever. GRANTOR hereby covenants with Grantee that it is lawfully seized of the Property in fee simple, that it has good right and lawful authority to sell and convey the Property, that it hereby specially warrants the title to the Property and will defend the same against the lawful claims of all persons claiming by, through or under Grantor, but against no others. IN WITNESS WHEREOF, Grantor has hereunto set its hand and seal as of the day and year first above written. Signed, sealed and delivered in the presence of: [insert signature block for Grantor], a Print Name: Print Name: STATE OF COUNTY OF )ss: By:_._., Name: Title: The foregoing instrument was acknowledged before me this , 20_ by , as a of the bank. He is personally known to me or has produced as identification. day of of on behalf Name: My commission expires: Notary Public, State of Florida Commission No. [Notarial Seal] MIA 180, 691,006v7 2-8-10