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02/04/2010 City Council Agenda Location: Council Chambers - City Hall Date: 2/4/2010- 6:00 PM Welcome. We are glad to have you join us. If you wish to speak, please wait to be recognized, then state your name and address. Persons speaking before the City Council shall be limited to three (3) minutes unless otherwise noted under Public Hearings. For other than Citizens to be heard regarding items not on the Agenda, a spokesperson for a group may speak for three (3) minutes plus an additional minute for each person in the audience that waives their right to speak, up to a maximum of ten (10) minutes. Prior to the item being presented, please obtain the needed form to designate a spokesperson from the City Clerk (right-hand side of dais). Up to thirty minutes of public comment will be allowed for an agenda item. No person shall speak more than once on the same subject unless granted permission by the City Council. The City of Clearwater strongly supports and fully complies with the Americans with Disabilities Act (ADA). Please advise us at least 48 hours prior to the meeting if you require special accommodations at 727-562-4090. Assisted Listening Devices are available. Kindly refrain from using beepers, cellular telephones and other distracting devices during the meeting. 1. Call to Order 2. Invocation 3. Pledge of Allegiance 4. Presentations 4.1Boy Scouts of America Week Proclamation Attachments 4.2National Spay and Neuter Month Attachments 4.3Proclamation: 2-1-1 Tampa Bay Day Attachments 4.4Department of Homeland Security Recognition of Ironman EOC Operations - Rick Carnley Attachments 5. Approval of Minutes 5.1Approve the minutes of the January 14, 2010 City Council Meeting as submitted in written summation by the City Clerk. Attachments 6. Citizens to be Heard re Items Not on the Agenda Public Hearings - Not before 6:00 PM 7. Administrative Public Hearings - Presentation of issues by City staff - Statement of case by applicant or representative (5 min.) - Council questions - Comments in support or opposition (3 min. per speaker or 10 min maximum as spokesperson for others that have waived their time) - Council questions - Final rebuttal by applicant or representative (5 min.) - Council disposition 7.1Continue the applicant's request to vacate the East 35 feet of a portion of South Gulfview Boulevard right- of-way lying along the west boundary of Lots 60, 61 and 62, Lloyd-White-Skinner Subdivision, (A.K.A. 311 South Gulfview Blvd. to February 18, 2010.(VAC2009-07 L.O.M., Inc.) Attachments 7.2Continue the Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4-606 to February 18, 2010. Attachments 8. Second Readings - Public Hearing 8.1Continue second reading of Ordinance 8145-10 regarding VAC2009-07 LOM Inc. to March 4, 2010. Attachments City Manager Reports 9. Consent Agenda 9.1Declare the list of property surplus to the needs of the City, authorize donation to Pinellas Technical Education Center (PTEC) and authorize the appropriate officials to execute same. (consent) Attachments 9.2Approve First Amendment to Lease Agreement between Clearwater Golf Associates Inc. (Club), and the City of Clearwater (City) increasing the length of the Agreement from 20 years to 27 years, extending the 50% rent relief for seven (7) years,setting a schedule to complete additional improvements to the course by the Club and authorize the appropriate officials to execute same. (consent) Attachments 9.3Accept an Edward Byrne Memorial Justice Assistance/Recovery Act Grant in the amount of $100,000 from the Florida Department of Law Enforcement, Office of Criminal Justice Grants (FDLE), for the Hispanic Outreach Center Partnership project and authorize the appropriate officials to execute same. (consent) Attachments 9.4Accept an Edward Byrne Memorial Justice Assistance Grant in the amount of $6,625 from the Florida Department of Law Enforcement, Office of Criminal Justice Grants (FDLE), for Rosetta Stone Spanish language training and authorize the appropriate officials to execute same. (consent) Attachments 9.5Award a contract to Waterline Construction, Inc. in the amount of $37,950 for the Turnstile Removal Clearwater Harbor, authorize funding in the amount of $37,950 from the General Fund reserves and authorize appropriate officials to execute same. (consent) Attachments 9.6Approve the Third Amendment to the Stevenson Creek Watershed Management Program: Implementation of Best Management Practices (K394) cooperative funding agreement with the Southwest Florida Water Management District to extend the contract period to December 31, 2010 and authorize the appropriate officials to execute same. (consent) Attachments 9.7Approve the final plat for “Bayside Townhomes” located at 109 McMullen Booth Road at the Southeast intersection of McMullen Booth Road and Johns Parkway. (consent) Attachments 9.8Approve two Work Orders to Engineer of Record (EOR)Sam Schwartz Engineering of Tampa, Florida, for the design and construction administrative services of (1) Hillcrest Neighborhood Traffic Calming (10-0002 –EN) in the amount of $330,242.03 and (2) Greenlea-Otten Neighborhood Traffic Calming in the amount of $344,568.00 for a total of $674,810.03 and authorize the appropriate officials to execute same. (consent) Attachments 9.9Award a contract to BRW Contracting, Inc. of Land-O-Lakes, Florida for the construction of the Overlea Street and Stevenson Drive Gravity Sewer Improvements Project in the amount of $431,174.81, which is the lowest responsible bid in accordance with plans and specifications, and authorize the appropriate officials to execute same. (consent) Attachments 9.10Reappoint Thomas Coates to the Community Development Board with the term to expire February 28, 2014. (consent) Attachments 9.11Appoint Judith B. Powers to the Public Art and Design Advisory Board as the Pinellas County Arts Council representative with the term to expire February 28, 2014. (consent) Attachments 10. Other Items on City Manager Reports 10.1Amend Chapter 33, Code of Ordinances, to be consistent with recent changes in Florida Statutes prohibiting city authorities from regulating the anchoring of vessels outside of mooring fields, and to clarify the types of vessels that may use city-owned docking facilities to be consistent with the City Charter and pass Ordinance 8146-10 on first reading. Attachments 10.2Amend Article VII, Solid Waste Management, Sections 32.2715, 32.272(4), 32.288, 32.289 (7)and(8), and 32.293 (8) and pass Ordinance 8131-10 on first reading. Attachments 10.3Approve amendments to Code of Ordinances, Chapter 14, Elections, to update the code due to changes in the City charter, State Statutes and County Supervisor of Elections procedures and pass Ordinance 8133- 10 on first reading. Attachments 10.4Adopt Resolution 10-02, encouraging Pinellas County to adopt anti-tethering regulations. Attachments 10.5Appoint one member to the Community Development Board with the term to expire February 28, 2014. Attachments Miscellaneous Reports and Items 11. City Manager Verbal Reports 11.1City Manager Verbal Reports Attachments 12. Council Discussion Items 12.1Advisory Board Event Attachments 13. Other Council Action 13.1Other Council Action Attachments 14. Adjourn City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Boy Scouts of America Week Proclamation SUMMARY: Review Approval:1) Clerk Cover Memo City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: National Spay and Neuter Month SUMMARY: Review Approval:1) Clerk Cover Memo City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Proclamation: 2-1-1 Tampa Bay Day SUMMARY: Review Approval:1) Clerk Cover Memo I t 0T 10 0 U fJ Y 2 1 1 Pinellas Snapshot Clearwater Edition Provided by 2 1 1 Tampa Bay Cares from the Tampa Bay Information Network Call Center data for this report is from the time period of January 1 2009 to December 31 2009 9 161 City of Clearwater calls that have been answered and documented by 2 1 1 Call Center Representatives from residents This does not include information boxes downloaded guides or web hits 3 088 City of Clearwater calls that where identified by our Call Center Representatives as benefiting children for all 2 1 1 Pinellas calls This data is gathered from a field in our database that is marked by Call Center Representatives as Call Benefiting Child 18 201 Number of City of Clearwater caller referrals made by Call Center Representiavies for calls into 2 1 1 Pinellas This is generated by the number of referrals that were made by a Call Center Representative for 1 st Time Callers Gender Refused HUD 0 11 No HUD 40 16 Dont Know r HUD 3 71 Female 68 89 J lDdWtoKnow wn LO 16 Transgender o oro L Male 30 86010 0 02 Yes HUD 56 000 Race American IndIan or Alaska Native HUD Asian HUD I Black or African American HUD Don t Know I Don t Koow HUD I Native Hawailan or Other Paclfic Islander HUD Other Other MultiRacial I I Refused Refused HUD Whlle HUD 1 809 5 695 o 2 000 4 000 6 000 2 2 1010 11 AM 1 2 1 1 Piriellas Snapshot Clearwater Edition Provided by 2 1 1 Tampa Bay Cares from the Tampa Bay Information Network Call Center data for this report is from the time period of January 1 2009 to December 31 2009 Age 2 800 2400 I 2 000 I I 1 600 I 1 200 800 I 400 0 1 10 1118 1925 2634 3544 4559 60 Unknown Top 20 Needs for City of Clearwater Calls Rent paymenl Asslstance lJtjlity Bill Payment AssIstance Food Pantries Electric Bill PaymentAssIstance Homeless Shelter Mental Health Care and Counseling Dental Care Commun y Clinics Food Stamps Holiday GltlsIToys Medlcald Legal Services Home Rental Llsling5 Christmas Baskets Aging and Dlsabll y Resource Centers Drug Detoxillcatlon T ransportallon Water Bill PaymentAssistance Comprehensive Information and Referral Domestic VIolence Shelters 2 2 10 10 11 AM o 200 400 600 800 2 2 1 1 Pinellas Snapshot Clearwater Edition Provided by 2 1 1 Tampa Bay Cares from the Tampa Bay Information Network Call Center data for this report is from the time period of January 1 2009 to December 31 2009 Top 15 Referrals for City of Clearwater Calls Pinellas Opportunity Councll Emergency Flnancl Pinellas County Health and Human Services Finan Salvallon Army Clearwater Sodal Services 11754 RoC S Religious Comrnunly Services Food Bank Countryside Christian Center Helping Hands MinI Pinellas County Urban League Low Income Home En Gultcoast Legal Services North Plnellas 1 0211 High Point NeIghborhood Famlly Center Electric Homeless Emergency Project HEP Emergency 5Iletl People IhaI Love Church lJIlllty Assifllance 11 045 CHIP Emergency Sheller SSg1 Community Health Centers at Clearwater 9574 UF College of Dentlslry 51 Peterburg Cllnlc 12 I I 364 Clearwater Free Cllnlc9532 Metropolflan Ministries Holiday 2009 Helping 2 2 10 10 11 AM o 400 800 1 200 3 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Department of Homeland Security Recognition of Ironman EOC Operations - Rick Carnley SUMMARY: The Review Approval:1) Clerk Cover Memo City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Approve the minutes of the January 14, 2010 City Council Meeting as submitted in written summation by the City Clerk. SUMMARY: Review Approval:1) Clerk Cover Memo Attachment number 1 Page 1 of 9 Attachment number 1 Page 2 of 9 Attachment number 1 Page 3 of 9 Attachment number 1 Page 4 of 9 Attachment number 1 Page 5 of 9 Attachment number 1 Page 6 of 9 Attachment number 1 Page 7 of 9 Attachment number 1 Page 8 of 9 Attachment number 1 Page 9 of 9 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Continue the applicant's request to vacate the East 35 feet of a portion of South Gulfview Boulevard right-of-way lying along the west boundary of Lots 60, 61 and 62, Lloyd-White-Skinner Subdivision, (A.K.A. 311 South Gulfview Blvd. to February 18, 2010. (VAC2009-07 L.O.M., Inc.) SUMMARY: The applicant is seeking the vacation of the east 35 feet of South Gulfview Boulevard. If the vacation is approved a parking garage with ancillary restaurant retail use is to be constructed over the vacated right-of-way and the adjoining property. Progress Energy, Bright House Networks, Knology and Verizon have no objections to the vacation request. The applicant will, at their expense, relocate a City water main and a sanitary sewer main presently in the subject right-of-way. An associated Flexible Development case (FLD2009-09032) was approved by the Community Development Board on December 15, 2009. A Development Agreement, (DVA2009-00004), between the City and the developer, L.O.M., Inc., was recommended for approval by the Development Review Committee on November 5, 2009 and is subject to City Council approval in tandem with this vacation request. A condition of approval in the ordinance requires the applicant to complete development of the property on or before September 30, 2012 or the vacation will become null and void. This condition is consistent with the completion date specified in the Development Agreement. The Engineering Department has no objections to the vacation request provided that the vacation is subject to the condition of approval contained in the ordinance. Review Approval:1) Planning 2) Legal 3) Clerk 4) Assistant City Manager 5) Clerk 6) City Manager 7) Clerk Cover Memo Ordinance No. 8145-10 ORDINANCE NO. 8145-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, VACATING WITH A CONDITION, THE EAST 35 FEET OF THE 70-FOOT SOUTH GULFVIEW BOULEVARD RIGHT-OF-WAY CONTAINED BETWEEN THE WESTERLY EXTENSION OF THE NORTH PROPERTY LINE OF LOT 60, LLOYD-WHITE-SKINNER SUBDIVISION AND THE WESTERLY EXTENSION OF THE SOUTH PROPERTY LINE OF LOT 62, LLOYD-WHITE-SKINNER SUBDIVISION; PROVIDING AN EFFECTIVE DATE. 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, the City has adopted Beach by Design pursuant to the Pinellas Planning Council's Rules in support of the City's Comprehensive Plan; WHEREAS, L.O.M., Inc., owner of real property (the “Owner”) located in the City of Clearwater, has entered into a Development Agreement (as amended, restated and supplemented from time to time, the “Development Agreement”) with the City as approved by Resolution 10-01 for the purpose of facilitating the development of a mixed-use project (the “Project”) that includes the construction of approximately three hundred and forty-nine (349) parking spaces, of which three hundred (300) spaces shall be open to the public; and has requested that the City vacate the right-of-way depicted in Exhibit A, attached hereto in order to facilitate the Project, WHEREAS, adoption of this ordinance is a step necessary to make it possible for the Owner to develop the Project on the real property depicted in Exhibit A and adjacent lands owned by Owner in accordance with the goals and objectives of Beach by Design; WHEREAS, the completion of the Project will 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 Comprehensive Plan of the City of Clearwater, by providing much-needed public parking on Clearwater Beach; WHEREAS, the City Council finds that said right-of-way is not necessary for municipal use and it is deemed to be in the best interest of the City and the general public that the same be vacated; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. The following land: Attachment number 1 Page 1 of 2 2 Ordinance No. 8145-10 Being the East 35eet of the 70-foot South Gulfview Boulevard right-of-way contained between the westerly extension of the north property line of Lot 60, Lloyd-White-Skinner Subdivision as recorded in Plat Book 13, Pages 12 and 13 and the westerly extension of the south property line of Lot 62 of said Lloyd-White-Skinner Subdivision. is hereby vacated, closed and released, and the City of Clearwater releases all of its right, title and interest thereto to and for the benefit of the adjacent property owner, provided that and conditioned upon the following: The Project shall be constructed and completed on or before September 30, 2012, (the “Condition”). If the Completion Date (as defined in the Development Agreement) is extended for any reason, the outside date for completion of the Project shall be extended for a commensurate period of time for purposes of the Condition. Completion shall be evidenced by the issuance of a temporary or permanent certificate of occupancy for the Project. If the Condition is not met, this vacation shall be rendered null and void. If the Condition is met, this vacation shall become permanent and irrevocable. Section 2. The City Clerk shall record this ordinance in the public records of Pinellas County, Florida, following adoption. Section 3. This ordinance shall take effect immediately upon adoption. PASSED ON FIRST READING _________________________ PASSED ON SECOND AND FINAL READING AND ADOPTED _________________________ _______________________________ Frank V. Hibbard Mayor Approved as to form: Attest: ______________________________ _______________________________ Camilo A. Soto Cynthia E. Goudeau Assistant City Attorney City Clerk Attachment number 1 Page 2 of 2 Clearw at e r GUL F V I E W CO R O N A D O WATER BAYSIDE ST HAM D E N BRIGHT DR DR FIFTH Pa ss GUL F V I E W S. Pa r k w a y S Sh o r e BAYWA Y BLVD B LVD DE V O N ST AV E BlvdCauseway DR DR ST ST MANDA L A Y PO I N S E T T I A PAPAYA SAN MARCO AV E DR EA S T DR SH O R E BL V D THIRD FIRST Mar i na DO L P H I N WINDWA M E M O R PA SSA G WA Y Way D O RY POIN T L A R B O A R D P OIN T S R - 6 0 Pier 60 SECOND ST S. Location of ROW to be Vacated along S Gulfview Blvd Location Map: ROW Vacation, L.O.M. INC. Prepared by: Engineering Department Geographic Technology Division 100 S. Myrtle Ave, Clearwater, FL 33756 Ph: (727)562-4750, Fax: (727)526-4755 www.MyClearwater.com JHHSD N.T.S.282A08-29s-15e12/21/2009Map Gen By:Reviewed By:S-T-R:Grid #:Date:Scale: Vacate the Easterly 35-feet of the 70-foot R.O.W. of S. Gulfviev Blvd. lying along the westerly boundary of Lots 60, 61, and 62 of Lloyd White Skinner Subdivision. Legend Outside CLWTR City limits Clearwater Service Area Ord #: 8145-10 Vac #: 2009-07 Name: L.O.M. INC Attachment number 2 Page 1 of 1 Attachment number 3 Page 1 of 1 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Continue the Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4-606 to February 18, 2010. SUMMARY: The 0.99 acre parcel is located between S. Gulfview Boulevard and Coronado Drive approximately 200 feet south of Third Street. The main portion of the subject property (311 S. Gulfview Boulevard [including 305, 309 and 315 S. Gulfview Boulevard]) is currently developed with a retail sales use of 7,128 square feet of floor area (Surf Style) and a restaurant of 6,058 square feet of floor area (Britt’s). The other portion of the subject property (320 Coronado Drive) is developed with a detached dwelling. On December 15, 2009, the Community Development Board (CDB) approved with 15 conditions of approval a Flexible Development application to permit Retail Sales and Services of 34,183 square feet of floor area, a Restaurant of 6,887 square feet of floor area and a Parking Garage of 349 parking spaces (including 48 accessory parking spaces for the Retail Sales and Services and Restaurant uses and 301 public parking spaces) (FLD2009-09032). The proposal is in compliance with the standards for development agreements, is consistent with the Comprehensive Plan and furthers the vision of beach redevelopment set forth in Beach by Design. The proposed Development Agreement will be in effect for a period not to exceed five (5) years following the completion date of the project, meets the design guidelines of Beach by Design and includes the following main provisions: Provides for at least 301 parking spaces open to the public, with at least 250 of these spaces available on an hourly basis; Separates the project into a Retail Unit(s) (total of 38,249 square feet of retail/commercial floor area on the ground floor consisting of approximately 31,421 square feet of retail space [does not include the Beach Walk Thru Area], 6,828 square feet of restaurant space and 48 parking spaces on the second floor) and a Parking Unit (301 parking spaces); Includes the formation of a three-unit condominium for the project (one unit for the retail portion, the 48 associated parking spaces and the delivery area, one for the restaurant portion and one for the Parking Unit); Includes provisions for the approval by FEMA of a Flood Zone map change from a VE-Zone to an AE-Zone to allow construction of the Retail Unit on the ground floor of the building through the construction of a wave dissipating wall within the S. Gulfview Boulevard right-of-way; Requires the developer commence construction of the project on or before June 30, 2010; Requires the City review (approval or denial) of the building permit within 30 days of submission of the permit; and Authorizes café seating within the S. Gulfview Boulevard right-of-way. The Community Development Board reviewed this Development Agreement application at its public hearing on January 5, 2010, and unanimously recommended approval. Per the conditions of the PUT agreement, the City will establish capital improvement project 315-92649, Surf Style Condominium – Parking Unit in the amount of $9.3 million. Funding will be provided by a first quarter transfer of $6 million from capital project 315-92641, Seashell Parking Lot. The balance of $3.3 million will be transferred from the undesignated retained earnings of the Parking Fund. Review Approval:1) Legal 2) Clerk 3) Assistant City Manager 4) Clerk 5) City Manager 6) Clerk Cover Memo Resolution No. 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 _______ day of _____________, 2010. ____________________________ Frank V. Hibbard Mayor Approved as to form: Attest: __________________________ _____________________________ Pamela K. Akin Cynthia E. Goudeau City Attorney City Clerk Attachment number 1 Page 1 of 1 v6 MIA 180692234 AGREEMENT FOR DEVELOPMENT OF PROPERTY IN THE CITY OF CLEARWATER (SURF STYLE CONDOMINIUM PROJECT) between THE CITY OF CLEARWATER, FLORIDA and L.O.M., INC. Dated as of _______________, 2010 Attachment number 2 Page 1 of 152 (i) v6 MIA 180692234 Table Of Contents Article 1. DEFINITIONS. ............................................................................................... 2 1.01 Definitions ......................................................................................................... 2 1.02 Use of Words and Phrases ............................................................................... 4 1.03 Florida Statutes ................................................................................................. 5 Article 2. PURPOSE AND DESCRIPTION OF PROJECT. .......................................... 5 2.01 Finding of Public Purpose and Benefit .............................................................. 5 2.02 Purpose of Agreement ...................................................................................... 5 2.03 Scope of the Project. ......................................................................................... 5 2.04 Cooperation of the Parties ................................................................................ 7 Article 3. REGULATORY PROCESS. .......................................................................... 7 3.01 Land Development Regulations ........................................................................ 7 3.02 Development Approvals and Permits. ............................................................... 7 3.03 Concurrency. ..................................................................................................... 8 Article 4. PLANS AND SPECIFICATIONS. .................................................................. 9 4.01 Plans and Specifications. .................................................................................. 9 Article 5. PROJECT DEVELOPMENT. ....................................................................... 10 5.01 Ownership of Property .................................................................................... 10 5.02 City's Obligations. ........................................................................................... 10 5.03 Obligations of the Developer. .......................................................................... 10 Article 6. PROJECT FINANCING. .............................................................................. 11 6.01 Financing ........................................................................................................ 11 6.02 Notice of Project Financing to City .................................................................. 11 6.03 Copy of Default Notice to City ......................................................................... 12 Article 7. INDEMNIFICATION. ................................................................................... 12 7.01 Indemnification by the Developer. ................................................................... 12 7.02 Indemnification by the City. ............................................................................. 12 7.03 Limitation of Indemnification............................................................................ 13 Article 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER. ............................................................................................. 14 8.01 Representations and Warranties ..................................................................... 14 8.02 Covenants ....................................................................................................... 15 Article 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY. ........................................................................................................... 16 9.01 Representations and Warranties ..................................................................... 16 Attachment number 2 Page 2 of 152 (ii) v6 MIA 180692234 9.02 Covenants ....................................................................................................... 17 Article 10. CONDITIONS PRECEDENT. ...................................................................... 18 10.01 Construction of Project .................................................................................... 18 10.02 Responsibilities of the Parties for Conditions Precedent ................................. 18 Article 11. DEFAULT; TERMINATION. ........................................................................ 18 11.01 Project Default by the Developer. ................................................................... 18 11.02 Default by the City. .......................................................................................... 20 11.03 Obligations, Rights and Remedies Cumulative ............................................... 21 11.04 Non-Action on Failure to Observe Provisions of this Agreement .................... 21 11.05 Termination. .................................................................................................... 21 11.06 Termination Certificate. ................................................................................... 22 Article 12. ARBITRATION ........................................................................................... 23 12.01 Agreement to Arbitrate .................................................................................... 23 12.02 Appointment of Arbitrators. ............................................................................. 23 12.03 General Procedures ........................................................................................ 24 12.04 Majority Rule ................................................................................................... 24 12.05 Replacement of Arbitrator ............................................................................... 25 12.06 Decision of Arbitrators. .................................................................................... 25 12.07 Expense of Arbitration ..................................................................................... 25 12.08 Accelerated Arbitration. ................................................................................... 25 12.09 Applicable Law ................................................................................................ 26 12.10 Arbitration Proceedings and Records ............................................................. 26 Article 13. UNAVOIDABLE DELAY. ............................................................................. 26 13.01 Unavoidable Delay. ......................................................................................... 26 Article 14. FIRE OR OTHER CASUALTY; CONDEMNATION. .................................... 27 14.01 Loss or Damage to Project. ............................................................................. 27 14.02 Partial Loss or Damage to Project .................................................................. 28 14.03 Project Insurance Proceeds. ........................................................................... 28 14.04 Notice of Loss or Damage to Project .............................................................. 29 14.05 Condemnation of Project or Property; Application of Proceeds ...................... 29 Article 15. MISCELLANEOUS ...................................................................................... 29 15.01 Assignments. .................................................................................................. 29 15.02 Successors and Assigns ................................................................................. 30 15.03 Notices. ........................................................................................................... 30 15.04 Applicable Law and Construction .................................................................... 31 15.05 Venue; Submission to Jurisdiction. ................................................................. 31 15.06 Estoppel Certificates ....................................................................................... 32 15.07 Complete Agreement; Amendments. .............................................................. 32 15.08 Captions .......................................................................................................... 32 15.09 Holidays .......................................................................................................... 33 Attachment number 2 Page 3 of 152 (iii) v6 MIA 180692234 15.10 Exhibits ........................................................................................................... 33 15.11 No Brokers ...................................................................................................... 33 15.12 Not an Agent of City ........................................................................................ 33 15.13 Memorandum of Development Agreement ..................................................... 33 15.14 Public Purpose ................................................................................................ 33 15.15 No General Obligation .................................................................................... 33 15.16 Other Requirements of State Law ................................................................... 33 15.17 Technical Amendments .................................................................................. 34 15.18 Term; Expiration; Certificate. ........................................................................... 34 15.19 Approvals Not Unreasonably Withheld ........................................................... 34 15.20 Waiver of Jury Trial ......................................................................................... 35 15.21 Effective Date .................................................................................................. 35 EXHIBITS Legal Description of Property .......................................................................................... A Conceptual Plans for Project ........................................................................................... B Right-of-Way Area to be Vacated ....................................................................................C Form of Condominium Documents ..................................................................................D Public Parking Covenant ................................................................................................. E Maintenance Easement ................................................................................................... F Sidewalk and Turn-Lane Easement ............................................................................... G List of Required Permits and Approvals ..........................................................................H Project Development Schedule ........................................................................................ I City Parking Garage Standards ....................................................................................... J Parking Structure Maintenance Standards ...................................................................... K “PUT” Agreement Form ................................................................................................... L Form of Memorandum of Agreement for Development of Property ................................ M Attachment number 2 Page 4 of 152 1 v6 MIA 180692234 AGREEMENT FOR DEVELOPMENT OF PROPERTY (SURF STYLE CONDOMINIUM PROJECT) This Agreement for Development of Property (Surf Style Condominium Project) (the "Agreement") is made as of this ___ day of __________________, 2010, by and between THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the "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 301 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 at least three hundred and forty nine (349) parking spaces in the project, of which at least three hundred one (301) spaces shall be open to the public; WHEREAS, it is necessary that the City take certain actions in order to make it possible for the Developer to develop the Property in accordance with the goals and objectives of Beach by Design; WHEREAS, the City has conducted such hearings as are required by and in accordance with Chapter 163.3220 F. S. and applicable law; WHEREAS, the City has determined that as of the Effective Date of this Agreement, the proposed development is consistent with the City's Comprehensive Plan and Land Development Regulations; Attachment number 2 Page 5 of 152 2 v6 MIA 180692234 WHEREAS, the City has conducted public hearings as required by § 4-206 and 4-606 of the Community Development Code; WHEREAS, at a duly called public meeting on _____________, 2010, the City Council approved this Agreement and authorized and directed its execution by the appropriate officials of the City; and WHEREAS, the shareholders and/or directors (as appropriate) of the Developer have approved this Agreement and have authorized certain individuals to execute this Agreement on its behalf. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby agree as follows: ARTICLE 1. DEFINITIONS. 1.01 Definitions. For purposes of this Agreement, the following terms defined in this Article 1 shall have the meanings attributed to them below except as herein otherwise expressly provided: (1) "Agreement" means this Agreement for Development of Property (Surf Style Condominium Project), including any Exhibits and any amendments thereto. (2) "Agreement Expiration Certificate" means the certificate confirming the completion of all obligations under this Agreement and expiration of the term of this Agreement required under Section 15.18, upon the request of either party. (3) “Applicable Laws” means any law, enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction or requirement of any Governmental Authority, political subdivision, or any division or department thereof, now existing or hereafter enacted, adopted, promulgated, entered, or issued. (4) "Beach by Design" or "Plan" means the strategic redevelopment plan for Clearwater Beach dated 2001 which was adopted by the City Council pursuant to the provisions of the Pinellas County Planning Councils Rules for the designation of a Community Redevelopment District, as amended. (5) “Break Wall” shall have the meaning given to it in Section 2.03(4). (6) "City" means the City of Clearwater, Florida, a Florida municipal corporation. (7) "City Council" means the governing body of the City. Attachment number 2 Page 6 of 152 3 v6 MIA 180692234 (8) "City Parking Garage Standards" means the City's standards for the construction of City-owned public parking facilities, which standards are attached hereto as Exhibit J. (9) "Commencement Date" means the date on which Developer commences or causes a contractor to commence construction (see Section 5.03(4)), which date shall occur on or before June 30, 2010. (10) "Completion Date" means the date on which a temporary or final certificate of occupancy required for the Project is issued, which date shall be no later than twenty-four (24) months following the Commencement Date. (11) "Conceptual Plans" means the conceptual plans for the Project approved by the parties attached hereto as Exhibit B. (12) "Developer" means, for the purposes of this Agreement, L.O.M., Inc., a Florida corporation and its successors and assigns as provided in Article 15. (13) "Effective Date" means the date of approval and final execution of the Agreement by the parties. (14) "Exhibits" means those agreements, diagrams, drawings, specifications, instruments, forms of instruments, and other documents attached and designated as exhibits to, and incorporated in and made a part of, this Agreement. (15) "Expiration Date" means the date which is five (5) years following the Completion Date. (16) "Flood Zone Change" shall have the meaning given to it in Section 2.03(4). (17) “Governmental Authority” means any federal, state, county, municipal or other governmental entity or any instrumentality of any of them, having jurisdiction over the Project. (18) “Land Development Regulations” means the Community Development Code, Comprehensive Plan, Beach by Design and related regulations applicable to the development of the Project in the City of Clearwater. (19) "Parking Unit" shall have the meaning given to it in Section 2.03(1). (20) "Permits" means all land development approvals, permits and consents required to be granted, awarded, issued, or given by any Governmental Authority under any Applicable Laws in order for construction of the Attachment number 2 Page 7 of 152 4 v6 MIA 180692234 Project, or any part thereof, to commence, continue or be completed. The term Permits shall include FEMA's approval of the Flood Zone Change. (21) "Plans and Specifications" means the site plan for the Project to be filed with the City as required by the Land Development Regulations for the purpose of review and approval. (22) "Project" means, generally, the development and construction of a 38,249+/- square foot retail/commercial project with 48 parking spaces, and a commercial parking garage containing approximately 301 parking spaces open to the public, as described in Section 2.03(1) of this Agreement. The Project will consist of the Retail Unit(s) and the Parking Unit, as more particularly described in this Agreement. (23) "Project Financing" shall have the meaning given to it in Section 6.01. (24) "Project Lender" shall have the meaning given to it in Section 6.01. (25) "Property" means that certain property located at 315 S. Gulf View Boulevard and 320 Coronado Drive, Clearwater, FL 33767, which is owned by the Developer or an affiliate or nominee on the Effective Date of this Agreement (see Section 5.01), which Property is more particularly described in the legal description attached as Exhibit A to this Agreement. (26) "Put Agreement" shall have the meaning given to it in Section 6.01. (27) "Retail Unit(s)" shall have the meaning given to it in Section 2.03(1). (28) "Termination Date" means the date a termination certificate is issued pursuant to Article 11. (29) "Unavoidable Delay" means a delay as described in Article 13 hereof. (30) "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. 1.02 Use of Words and Phrases. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, the singular shall include the plural as well as the singular number, and the word "person" shall include corporations and associations, limited liability corporations and partnerships, including public bodies, as well as natural persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this Agreement and not solely to the particular portion thereof in which any such word is used. Attachment number 2 Page 8 of 152 5 v6 MIA 180692234 1.03 Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (2009), as amended from time to time. ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT. 2.01 Finding of Public Purpose and Benefit. The proposed Project, and the design, construction, completion and operation of the Project, and each part thereof, is hereby found by the parties hereto: (1) to be consistent with and in furtherance of the objectives of the Land Development Regulations of the City of Clearwater, (2) to conform to the provisions of Applicable Laws, (3) to be in the best interests of the citizens of the City, (4) to further the purposes and objectives of the City, (5) to further the public interest on Clearwater Beach, and (6) to implement Beach by Design for South Gulfview Boulevard. 2.02 Purpose of Agreement. The purpose of this Agreement is to further the implementation of Beach by Design by providing for the development of the Property and increase the available public parking, all to enhance the quality of life and improve the aesthetic and useful enjoyment of Clearwater Beach and the City, all in accordance with and in furtherance of the Land Development Regulations of the City of Clearwater and as authorized by and in accordance with the provisions of Applicable Laws. 2.03 Scope of the Project. (1) Description of 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 Unit(s): 38,249+/- square foot retail/commercial unit(s) on the ground floor of the building consisting of approximately 31,421 square feet of retail space and 6,828 square feet of restaurant space, together with a delivery area and approximately 48 parking spaces on the second floor of the building (collectively, the "Retail Unit(s)"). Notwithstanding the designation of a portion of the Project as a “Retail Unit”, the name alone shall not restrict its use, as the Retail Unit(s) may be used for any lawful purpose (b) Parking Unit: 301 parking spaces located on the 2nd through 6th floors of the building (the "Parking Unit"). (2) Formation of Condominium. The Developer intends to 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 6,828 square feet of restaurant space and the other of which will include the remainder of the Retail Unit as described above (i.e., approximately 31,421 square feet of retail space, 48 parking spaces and the delivery area). Accordingly, no later than the Completion Date, the Developer shall Attachment number 2 Page 9 of 152 6 v6 MIA 180692234 submit the Property to the condominium form of ownership pursuant Chapter 718 of the Florida Statutes and condominium documents in substantially the form attached hereto as Exhibit D. (3) Parking Covenant. No later than the Completion Date, the Developer shall execute, deliver and record a covenant against the Property in the Public Records of Pinellas County, Florida, which covenant shall require that the Project and any future development on the Property include not less than 301 parking spaces available for public parking to the extent permitted by Applicable Laws, provided that the City (and/or any other applicable Governmental Authority) issues a license or permit (as required by Applicable Law) to the then fee owner of the Property and/or the Parking Unit, as applicable (or its designated parking operator) to operate such parking spaces. The requirement for public parking shall apply to the Project and future developments on the property from the date of the certificate of occupancy for the Project and such future developments (as applicable) for the duration of existence of the improvements covered by such certificate of occupancy. The foregoing parking covenant shall be in substantially the form of the covenant attached to this Agreement as Exhibit E. (4) FEMA Map Revision: The parties hereto acknowledge and agree that the Developer is currently processing a letter of map revision with FEMA to change the flood zone for the Property from VE to AE (the “Flood Zone Change”). The City agrees to cooperate with the Developer and FEMA requirements in order to accomplish the Flood Zone Change. Specifically, the City will (a) comply with any requirement for the construction and on- going maintenance of a so-called "wave dissipating wall" (the “Break Wall”) on the City property lying west of the Property to the east of Gulfview Boulevard along the promenade, (b) as the fee owner of the property upon which the Break Wall will be constructed, submit the letter of map revision to FEMA supporting the Flood Zone Change, (c) advertise the Flood Zone Change as required by Applicable Law, and (d) in conjunction with LOM, process the Flood Zone Change in accordance with the requirements set forth by FEMA in its Conditional Letter of Map Revision. The Developer will be responsible for and pay all costs associated with the Flood Zone Change, including the cost of construction and on-going maintenance of the Break Wall. (5) Maintenance Easement: The City has provided or will provide an easement for construction of, access to and from, and maintenance of, the Break Wall, which easement shall be appurtenant to one or both of the Retail Unit(s) and shall grant the fee owner of the Retail Unit(s) the perpetual right to maintain the Break Wall in accordance with the requirements of FEMA and any other applicable Governmental Authority. The foregoing easement shall be in substantially the form of the easement Attachment number 2 Page 10 of 152 7 v6 MIA 180692234 attached to this Agreement as Exhibit F, and shall be in the location indicated in said exhibit. (6) Sidewalk and Turn-Lane Easement. On or before the Completion Date, the Developer will provide an easement for a sidewalk and turn-lane encumbering the Property on the east side thereof along Coronado Drive. The foregoing easement shall be in substantially the form of the easement attached to this Agreement as Exhibit G, and shall be in the location indicated in said exhibit. In the event of a conflict between the terms of this Agreement and the terms of the specific instruments attached to this Agreement as Exhibits D, E, F or G with respect to the subject matter of such instruments, the terms of such instruments, which are more specific and detailed as to the subject matter thereof, shall control 2.04 Cooperation of the Parties. The City and the Developer recognize that the successful development of the Project and each component thereof is dependent upon the continued cooperation of the City and the Developer, and each agrees that it shall act in a reasonable manner hereunder, provide the other party with complete and updated information from time to time, with respect to the conditions such party is responsible for satisfying hereunder and make its good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this Agreement are carried out to the full extent contemplated hereby and the Project is designed, constructed, completed and operated as provided herein. ARTICLE 3. REGULATORY PROCESS. 3.01 Land Development Regulations. The Property is designated Tourist District in the City's Land Development Regulations. 3.02 Development Approvals and Permits. (1) Applications for Development Approval. The Developer shall prepare and submit to the appropriate Governmental Authority, including the appropriate divisions and boards of the City, applications for approval of all Plans and Specifications necessary for the Project, and shall bear all costs of preparing such applications, applying for and obtaining such permits, including payment of any and all applicable application, inspection, regulatory and impact fees or charges (if any). The City shall, to the extent possible, review and process the foregoing applications and permits on an expedited basis. A list of all permits and approvals required to implement the provisions of this Agreement is attached as Exhibit H. The failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve the Developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions. Attachment number 2 Page 11 of 152 8 v6 MIA 180692234 (2) Schedule. A Project Development Schedule is attached to this Agreement as Exhibit I that identifies specific tasks to be completed through the entire Project and the proposed date for completion. (3) City Cooperation and Assistance. The City shall cooperate with the Developer in obtaining all necessary Permits required for the construction, completion and opening for business of the Project. If requested by the Developer and authorized by law, the City will join in any application for any Permit, or, alternatively, recommend to and urge any Governmental Authority that such Permit or Permits be issued or approved, to the extent that the work covered by such Permit(s) is not in violation of the terms of this Agreement. (4) City Authority Preserved. The City's duties, obligations, or responsibilities under any section of this Agreement, specifically including, but not limited to, this Section 3.02, shall not affect the City's right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laws, ordinances, codes or other building regulations. Notwithstanding any other provision of this Agreement, any required permitting, licensing or other regulatory approvals by the City shall be subject to the established procedures and substantive requirements of the City with respect to review and permitting of a project of a similar or comparable nature, size and scope. In no event shall the City, due to any provision of this Agreement, be obligated to take any action concerning regulatory approvals except through its established procedures and in accordance with applicable provisions of law. (5) Impact Fees. The City shall use its best efforts to secure or provide any lawfully available credits against impact fees applicable to the Project which are authorized under existing laws and regulations for public improvements constructed and paid for by the Developer. In the event that the City is unable to secure a credit against any impact fees, the City shall use its best efforts, within the limits of Applicable Laws, to allocate impact fees collected from the Developer to other improvements in the immediate vicinity of the Property. [Under Review] 3.03 Concurrency. (1) Concurrency Required. The parties hereto recognize and acknowledge that Florida law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code) imposes restrictions on development if adequate public improvements are not available concurrently with that development to absorb and handle the demand on public services caused by development. The City has created and implemented a system for monitoring the effects of development on public services within the City. The Developer recognizes and acknowledges that it may be required to satisfy the concurrency requirements of Florida law Attachment number 2 Page 12 of 152 9 v6 MIA 180692234 and the City's regulations as applied to this Project (if applicable) as part of the regulatory approval process for the Project. (2) Reservation of Capacity. The City hereby agrees and acknowledges that as of the Effective Date of this Agreement, the Project satisfies the concurrency requirements of Applicable Laws. The City agrees to reserve the required capacity in public services to serve the Project for the Developer and to maintain such capacity until January 30, 2014. The City recognizes and acknowledges that the Developer will rely upon such reservation in proceeding with the Project. (3) Required Public Facilities. In addition to the obligations of the City and the Developer set out in Article 5 of this Agreement, the Water Utilities Department of the City will provide potable water service and sanitary sewer service to the Project. ARTICLE 4. PLANS AND SPECIFICATIONS. 4.01 Plans and Specifications. (1) Responsibility for Preparation of Plans and Specifications. The Developer shall be solely responsible for and shall pay the cost of preparing, submitting and obtaining approval of the Plans and Specifications for the Project. (2) Use of Qualified Professionals. The Developer shall retain qualified professionals to prepare the Plans and Specifications and shall cause such professionals to prepare the Plans and Specifications. (3) Approval of Plans and Specifications for the Commercial Parking Garage Which is To Be Available to the Public. The City has previously approved the Conceptual Plans in its regulatory capacity. Exhibit J attached to this Agreement sets forth the City Parking Garage Standards for parking garage facilities owned by the City. In order to ensure that the design of the Parking Unit will meet the City's standards, the Plans and Specifications for the Project shall be submitted to the City for review and comment prior to the submission of any application for a building permit, other than a foundation permit. The City's review of the Plans and Specifications hereunder in its proprietary (i.e., non-regulatory) capacity shall be limited to compliance by the Parking Unit with the City Parking Garage Standards. The City shall notify the Developer in writing within thirty (30) days following receipt that the Plans and Specifications have or have not been approved, and in the case of disapproval, the specific reason(s) for such disapproval. If the Plans and Specifications submitted to the City by the Developer substantially comply with this Agreement and have not materially changed from the Conceptual Plans in a manner which causes the Parking Unit to no longer conform to the City Parking Garage Attachment number 2 Page 13 of 152 10 v6 MIA 180692234 Standards, the City shall approve the Plans and Specifications as submitted. The City's failure to respond to the Developer within said 30- day period shall be deemed approval. ARTICLE 5. PROJECT DEVELOPMENT. 5.01 Ownership of Property. The Developer is the owner of the Property. 5.02 City's Obligations. (1) Vacation of Right-of-Way. The City Council has adopted (or will consider adopting) an ordinance permanently vacating the eastern half of the existing right-of-way of South Gulfview Boulevard (approximately 35' in width) included within or adjacent to the Property, being the area depicted on Exhibit C. The vacation shall be conditioned on the construction of the Project. The time period for compliance with the ordinance shall be not less than [________________ (__)] months. The City shall execute and deliver any instruments confirming the Vacation of Right-of-Way as may be reasonably required by the Developer. (2) Permits. The City will cooperate and coordinate with the Developer with regard to all Permit applications, including without limitation those to federal, state and county agencies, and will facilitate or expedite, to the greatest extent possible, the Permit approval process. (3) Authority for Café Seating. The City has adopted a regulation authorizing the use of portions of the west thirty-five (35) feet of the South Gulfview Boulevard right-of-way existing on the Effective Date of this Agreement for outdoor cafe seating and associated activities. [Note: Regulations for café seating under review.] 5.03 Obligations of the Developer. (1) The Project. The Developer shall build and operate the Project. (2) Responsibility for On-Site Costs. The Developer shall be responsible for all on-site costs relative to the development of the Project, including the Parking Unit. (3) Parking. The Developer agrees to make at least three hundred one (301) parking spaces within the Project available for public parking, of which not less than two hundred fifty (250) parking spaces will available on an hourly basis. The Developer may charge the public for use of the parking spaces in the Parking Unit on terms and rates which are market-based and commensurate with terms and rates which are in effect for comparable beachfront, covered parking structures in Florida resort areas. The Developer agrees, during the term of this Agreement, to maintain the Parking Unit in a manner consistent with the City’s "Parking Structure Attachment number 2 Page 14 of 152 11 v6 MIA 180692234 Maintenance Standards" attached hereto as Exhibit K. For purposes of clarity, it is acknowledged and agreed that the parking spaces included in the Retail Unit(s) or dedicated to the exclusive use of the Retail Unit(s) are not subject to the requirements and limitations of this Section. (4) Commencement of Construction. The Developer shall commence construction of the Project by June 30, 2010, and shall thereafter diligently pursue completion of the Project. ARTICLE 6. PROJECT FINANCING. 6.01 Financing. The Developer intends to finance the development and construction of the Project through one or more loans (as amended, restated, assigned and renewed from time to time, the "Project Financing") with third-party lender(s) (collectively, the “Project Lender”), secured by, inter alia, the Retail Unit(s) and Parking Unit. The Project Financing shall be contingent upon and the City hereby agrees to enter into a "put" agreement (the “Put Agreement”) between the Project Lender and the City substantially in the form attached hereto as Exhibit L, with such modifications thereto as may be reasonably acceptable to the Project Lender and the City. Pursuant to the Put Agreement, the Project Lender will have the option, for a period of five (5) years following the Completion Date, to require the City to purchase the Parking Unit for a purchase price of $9,300,000 if the Project Lender forecloses (by judicial foreclosure, deed in lieu or otherwise) against the Project following an event of default by the Developer under the applicable Project Financing documents. The City agrees to reserve $9,300,000 during the term of the Put Agreement for the purchase of the Parking Unit as more particularly provided in the Put Agreement. The City shall enter into the Put Agreement with the Project Lender simultaneously with the closing of the Project Financing. The structure of the Project Financing and security therefor (whether through one mortgage, multiple mortgages or otherwise) shall not be limited or restricted in any way by the terms of this Article 6, provided that the City shall be required to purchase the Parking Unit only upon the terms and conditions set forth in the Put Agreement. The Project Lender shall have the ability to assign the Put Agreement upon the terms and conditions set forth therein, but the City shall have no right to assign the Put Agreement. The City shall not modify or amend (or consent to a modification or amendment to) the Put Agreement without the prior written consent of the Developer. Once the Put Agreement is executed, the City's obligation to purchase the Parking Unit shall be governed by the Put Agreement and shall not be terminated and/or affected in any way by a subsequent termination of this Agreement. With respect to the subject matter of the Put Agreement, the terms of the Put Agreement shall govern and control over any conflicting or inconsistent terms of this Agreement. Any Project Financing will be guaranteed by Surf Style Retail Management Inc. 6.02 Notice of Project Financing to City. As soon as the Developer shall have obtained any financing for the Project, the Developer shall provide the City with a sworn statement identifying the Project Lender(s) and documenting the type of financing that the Project Lender(s) has issued in favor of the Developer for the Project. Attachment number 2 Page 15 of 152 12 v6 MIA 180692234 6.03 Copy of Default Notice to City. The Developer covenants and agrees that either the Put Agreement or the Project Financing documents shall include a provision which provides that in the event any Project Financing secured by the Parking Unit shall become due and payable by maturity or acceleration, the Project Lender shall give written notice thereof to the City by certified mail, return receipt requested. Such notice from the Project Lender to the City shall state the basis of the default by the Developer and shall include copies of any pleadings in any proceeding instituted by the Project Lender(s) incident thereto. ARTICLE 7. INDEMNIFICATION. 7.01 Indemnification by the Developer. (1) The Developer agrees to indemnify, defend and hold harmless, the City, its respective agents, officers, or employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of any act or omission of the Developer, its agents, employees or contractors arising out of, in connection with or by reason of, the performance of its obligations covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of such obligations. (2) The Developer shall indemnify, defend and hold harmless the City, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the Developer, as the case may be, of any representations or warranties contained in Section 8.01, or covenants contained in Section 8.02. (3) The Developer's indemnity obligations under subsections (1) and (2) of this Section shall survive the earlier of the Termination Date or the Expiration Date, but shall apply only to occurrences, acts, or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. (4) The Developer's indemnity hereunder is in addition to and not limited by any insurance policy and is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, nor as a waiver of sovereign immunity for any party entitled to assert the defense of sovereign immunity. 7.02 Indemnification by the City. (1) To the extent permitted by law, the City agrees to indemnify, defend and hold harmless, the Developer, its respective officers, and employees from Attachment number 2 Page 16 of 152 13 v6 MIA 180692234 any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of, any act or omission of the City, its respective agents or employees arising out of, in connection with or by reason of, the performance of its obligations covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of such obligations. (2) The City shall indemnify, defend and hold harmless the Developer, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the City, as the case may be, of any representations or warranties contained in Section 9.01, or covenants contained in Section 9.02. (3) The City's indemnity obligations under this Section 7.02 shall survive the earlier of the Termination Date or the Expiration Date, but shall only apply to occurrences, acts or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. (4) The City's indemnity hereunder is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, but is in addition to and not limited by any insurance policy provided that said obligation shall not be greater than that permitted and shall be limited by the provisions of Section 768.28, Florida Statutes, or any successor statute thereto. 7.03 Limitation of Indemnification. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations of the Developer (as set forth in Section 7.01) and the City (as set forth in Section 7.02), the following shall apply: (1) The indemnifying party shall not be responsible for damages that could have been, but were not, mitigated by the indemnified party; (2) The indemnifying party shall not be responsible for that portion of any damages caused by the negligent or willful acts or omissions of the indemnified party; and (3) There shall be no obligation to indemnify hereunder in the event that the indemnified party (1) shall have effected a settlement of any claim without the prior written consent of the indemnifying party, or (2) shall not have subrogated the indemnifying party to the indemnified party's rights against any third party by an assignment to the indemnifying party of any cause or action against such third party. Attachment number 2 Page 17 of 152 14 v6 MIA 180692234 ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER. 8.01 Representations and Warranties. The Developer represents and warrants to the City that each of the following statements is currently true and accurate and agrees the City may rely upon each of the following statements: (1) The Developer is a Florida corporation duly organized and validly existing under the laws of the State of Florida, has all requisite power and authority to carry on its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party, is qualified to do business in the State of Florida, and has consented to service of process upon a designated agent for service of process in the State of Florida. (2) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Developer, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof: (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, (iii) contravenes or results in any breach of, default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the Developer's Articles of Incorporation, or, on the date of this Agreement, any other agreement or instrument to which the Developer is a party or by which the Developer may be bound. (3) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Developer enforceable against the Developer in accordance with the terms thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (4) There are no pending or, to the knowledge of the Developer threatened actions or proceedings before any court or administrative agency against Attachment number 2 Page 18 of 152 15 v6 MIA 180692234 the Developer, or against any controlling shareholder, officer, employee or agent of the Developer which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Developer. (5) All financial information and other documentation, including that pertaining to the Project or the Developer, delivered by the Developer to the City was, on the date of delivery thereof, true and correct in all material respects. (6) As of the Effective Date, the Developer will have the financial capability to carry out its obligations and responsibilities in connection with the development of the Project as contemplated by this Agreement. (7) The Developer has the experience, expertise, and capability to develop, cause the construction, and complete the Project and, oversee and manage the design, planning, construction, completion and opening for business of the Project. 8.02 Covenants. The Developer covenants with the City that until the earlier of the Termination Date or the Expiration Date (unless an earlier date is specified, in which case such earlier date shall control): (1) The Developer shall timely perform or cause to be performed all of the obligations contained herein which are the responsibility of the Developer to perform. (2) During each year that this Agreement and the obligations of the Developer under this Agreement shall be in effect, the Developer shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals and shall cause to occur those events contemplated by this Agreement that are applicable to, and that are the responsibility of, the Developer. (3) The Developer shall use commercially reasonable efforts to accomplish the development of the Project by the Developer in accordance with the Plans and Specifications, and this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts or agreements that are applicable thereto. (4) Subsequent to the Effective Date, the Developer shall maintain its financial capability to develop, construct and complete the Project and shall promptly notify the City of any event, condition, occurrence, or change in its financial condition which materially adversely affects, or with the passage of time is likely to materially adversely affect, the Developer's Attachment number 2 Page 19 of 152 16 v6 MIA 180692234 financial capability to successfully and completely develop, construct and complete the Project as contemplated hereby. (5) Subject to Section 15.01, from the Effective Date through the Completion Date, the Developer shall maintain its existence, will not dissolve or substantially dissolve all of its assets and will not consolidate with or merge into another corporation, limited partnership, or other entity or permit one or more other corporations or other entity to consolidate with or merge into it without the prior approval of the City unless the Developer retains a controlling interest in the consolidated or merged corporation, and will promptly notify the City of any changes to the existence or form of the corporation or any change in the controlling shareholders, officers or directors of the Developer. (6) Other than sales and assignments contemplated by this Agreement, the Developer shall not sell, lease, transfer or otherwise dispose of all or substantially all its assets without adequate consideration and will otherwise take no action which shall have the effect, singularly or in the aggregate, of rendering the Developer unable to continue to observe and perform the covenants, agreements, and conditions hereof and the performance of all other obligations required of Developer by this Agreement. (7) Provided all conditions precedent thereto have been satisfied or waived as provided herein, the Developer shall design, construct and complete the Project such that it is substantially complete as provided in this Agreement no later than the Completion Date. ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY. 9.01 Representations and Warranties. The City represents and warrants to the Developer that each of the following statements is currently true and accurate and agrees that the Developer may rely on each of the following statements: (1) The City is a validly existing body corporate and politic of the State of Florida, has all requisite corporate power and authority to carry on its business as now conducted and to perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party. (2) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the City, and neither the execution and delivery thereof, nor compliance with the terms Attachment number 2 Page 20 of 152 17 v6 MIA 180692234 and provisions thereof or hereof (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the City, (iii) contravenes or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the City under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the City is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the City outstanding on the Effective Date. (3) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of the City enforceable against the City in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. 9.02 Covenants. The City covenants with the Developer that until the earlier of the Termination Date or the Expiration Date (unless an earlier date is specified, in which case such earlier date shall control): (1) The City shall timely perform, or cause to be performed, all of the obligations contained herein which are the responsibility of the City to perform. (2) During each year that this Agreement and the obligations of the City under this Agreement shall be in effect, the City shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals, and shall cause to occur those events contemplated by this Agreement that are applicable to and are the responsibility of the City. (3) The City shall assist and cooperate with the Developer to accomplish the development of the Project in accordance with this Agreement and the Plans and Specifications, will carry out its duties and responsibilities contemplated by this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts, or agreements that are applicable thereto, and, to the extent permitted by law, the City will not enact or adopt or urge or encourage the adoption of any ordinances, resolutions, rules regulations or orders or approve or enter into any contracts or agreements, including issuing any bonds, notes, or other forms of Attachment number 2 Page 21 of 152 18 v6 MIA 180692234 indebtedness, that will result in any provision of this Agreement to be in violation thereof. (4) The City shall not request or recommend any rezoning of the Property, or any part thereof, or any change in the Comprehensive Plan, which will prevent or adversely affect the development of the Project. (5) The City shall maintain its financial capability to carry out its responsibilities as contemplated by this Agreement and shall notify the Developer of any event, condition, occurrence, or change in its financial condition which materially adversely affects, or with the passage of time is likely to materially adversely affect, the City's financial capability to carry out its responsibilities contemplated hereby. ARTICLE 10. CONDITIONS PRECEDENT. 10.01 Construction of Project. Subject to termination of this Agreement pursuant to Article 11, the obligation of the Developer to commence construction of the Project on the Commencement Date is subject to the fulfillment to the satisfaction of, or waiver in writing by, the Developer of the following conditions: (1) The Plans and Specifications that are necessary to commence construction shall have been approved by the City (to the extent required under this Agreement) and by any other applicable Governmental Authority, FEMA shall have approved the Flood Zone Change, and the initial Permit for the commencement of construction of the Project and all other Permits necessary for construction to commence shall have been issued. (2) The Project Financing shall have closed and conditions to funding shall have been satisfied. (3) The City Council shall have adopted an ordinance effecting the Vacation of Right-of-Way as contemplated in Section 5.02(1) hereof. 10.02 Responsibilities of the Parties for Conditions Precedent. The parties hereto shall not, individually or collectively, knowingly, intentionally or negligently prevent any condition precedent from occurring; provided, however, nothing in this Section is intended or shall be deemed to deny any party the right to reasonably exercise its discretion to the extent permitted by law or this Agreement. ARTICLE 11. DEFAULT; TERMINATION. 11.01 Project Default by the Developer. (1) There shall be an "event of default" by the Developer pertaining to the entire Project upon the occurrence of anyone or more of the following: Attachment number 2 Page 22 of 152 19 v6 MIA 180692234 (a) The Developer shall fail to perform or comply with any material provision of this Agreement applicable to it within the time prescribed therefor, after receipt of a notice from the City pursuant to subsection 11.01(2)(a); or (b) The Developer shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or (c) Within ninety (90) days after the commencement of any proceeding by or against the Developer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed or otherwise terminated, or if, within ninety (90) days after the appointment without the consent or acquiescence of the Developer of any trustee, receiver or liquidator of any of such entities or of any material part of any of such entity's properties, such appointment shall not have been vacated; or (2) (a) If an event of default by the Developer described in subsection (1) above shall occur, the City shall provide written notice thereof to the Developer, and (i) if such event of default shall not be cured by the Developer within thirty (30) days after receipt of the written notice from the City specifying in reasonable detail the event of default by the Developer, or (ii) if such event of default is of such nature that it cannot be completely cured within such time period, then if the Developer shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary (provided, however, if the Developer is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of the City being required, but such approval will be required if the curative period is to be extended beyond six (6) months after the notice of default has been given by the City to the Developer), then, in addition to any remedy available under Section 11.05, the City may terminate this Agreement or pursue any and all legal or equitable remedies to which the City is entitled. Attachment number 2 Page 23 of 152 20 v6 MIA 180692234 (b) Any attempt by the City to pursue any of the above referenced remedies will not be deemed an exclusive election of remedy or waiver of the City's right to pursue any other remedy to which either may be entitled. (c) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. (3) Notwithstanding any provision of this Section, a default by the Developer following the Completion Date shall not affect the title of any condominium unit or common area conveyed by the Developer to an unrelated third party or to a condominium association which is not controlled by the Developer. 11.02 Default by the City. (1) There shall be an "event of default" by the City under this Agreement in the event the City shall fail to perform or comply with (i) any material provision of this Agreement applicable to it within the time prescribed therefor, after receipt of a notice from the Developer pursuant to subsection 11.02(2)(a), or (ii) any obligation of the City under the Put Agreement and such failure continues beyond any applicable notice and grace period provided therein. (2) (a) If an event of default by the City described in Section 11.02(1) shall occur, the Developer shall provide written notice thereof to the City, and (i) if such event of default shall not be cured by the City within thirty (30) days after receipt of the written notice from the Developer specifying in reasonable detail the event of default by the City, or (ii) if such event of default is of such nature that it cannot be completely cured within such time period, then if the City shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary (not to exceed, however, six (6) months from the Developer's notice), then the Developer may terminate this Agreement, institute an action to compel specific performance of the terms hereof by the City or pursue any and all legal or equitable remedies to which the Developer is entitled. (b) Any attempt by the Developer to pursue any of the remedies referred to in subparagraph (a) above will not be deemed an exclusive election of remedy or waiver of the Developer's right to pursue any other remedy to which it might be entitled. Attachment number 2 Page 24 of 152 21 v6 MIA 180692234 (c) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. 11.03 Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to the contrary, the specified rights and remedies to which either the City or the Developer are entitled under this Agreement are not exclusive and are intended to be in addition to any other remedies or means of redress to which the City or the Developer may lawfully be entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in, the performance of its obligations by the Developer while the City shall at such time be in default of their obligations hereunder shall not be deemed to be an "event of default." The suspension of, or delay in, the performance of the obligations by the City while the Developer shall at such time be in default of its obligations hereunder shall not be deemed to be an "event of default" by the City. 11.04 Non-Action on Failure to Observe Provisions of this Agreement. The failure of the City or the Developer to promptly or continually insist upon strict performance of any term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other agreement, instrument or document of whatever form or nature contemplated hereby shall not be deemed a waiver of any right or remedy that the City or the Developer may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or provision. 11.05 Termination. (1) The Developer and the City acknowledge and agree that as of the Effective Date certain matters mutually agreed by the parties hereto to be essential to the successful development of the Project have not been satisfied or are subject to certain conditions, legal requirements or approvals beyond the control of any of the parties hereto or which cannot be definitely resolved under this Agreement, including, but not limited to, failure of a Governmental Authority to grant an approval required for development of the Project and failure of FEMA to grant the Flood Zone Change. In recognition of these events or conditions, the parties hereto mutually agree that, provided the appropriate or responsible party therefor diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or condition to occur or be satisfied, the failure of the events or conditions listed in subsection (2) below to occur or be satisfied shall not constitute an event of default by any party under this Article 11, but may, upon the election of any party hereto, be the basis for a termination of this Agreement in accordance with this Section. (2) In addition to any other rights of termination provided elsewhere in this Agreement, this Agreement may be terminated as provided in subsection (3) of this section by the City or the Developer after the occurrence of any of the following events or conditions (except for subsection (b), in which Attachment number 2 Page 25 of 152 22 v6 MIA 180692234 event only the Developer may terminate this Agreement pursuant to this subsection (2)): (a) The appropriate Governmental Authority (including the City in exercise of its governmental and regulatory authority and responsibility), upon petition by the Developer denies or fails to: issue the necessary order or other action necessary to vacate the right-of-way as described in Section 5.02(1), approve the Flood Zone Change, issue the Permits or any other land use approval necessary to commence construction of the Project on the Property, provided the Developer has proceeded diligently, expeditiously and in good faith to obtain such approval, permits or other necessary actions; (b) A previously unknown site condition is subsequently discovered and that condition prevents successful development of the Project, or part of the Project on the Property, or part of the Property (in which case only the Developer at his option can terminate the Project as not feasible). (3) Upon the occurrence of an event described in subsection (2) or in the event that the Developer or the City, after diligently and in good faith to the fullest extent of its capabilities, is unable to cause a condition precedent to its respective obligations to occur or be satisfied, then the Developer or the City may elect to terminate this Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence of such event or the determination of inability to cause a condition precedent to occur or be satisfied, stating its election to terminate this Agreement as a result thereof, in which case this Agreement shall then terminate. Notwithstanding anything contained herein to the contrary, neither party shall have the right to terminate this Agreement under this Section 11.05 once the Commencement Date shall have occurred. (4) In the event of a termination pursuant to this Section 11.05, neither the Developer nor the City shall be obligated or liable one to the other in any way, financially or otherwise, for any claim or matter arising from or as a result of this Agreement or any actions taken by the Developer and the City, or any of them, hereunder or contemplated hereby, and each party shall be responsible for its own costs. 11.06 Termination Certificate. (1) In the event of a termination of this Agreement for any reason prior to the Expiration Date, each of the parties hereto do covenant and agree with each other to promptly execute a certificate prepared by the party electing to terminate this Agreement, which certificate shall expressly state that this Agreement has been terminated in accordance with its terms, is no Attachment number 2 Page 26 of 152 23 v6 MIA 180692234 longer of any force and effect except for those provisions hereof which expressly survive termination, that the rights, duties and obligations of the parties hereto have been terminated and released (subject to those surviving provisions hereof) and that the Property is no longer subject to any restrictions, limitations or encumbrances imposed by this Agreement. Such certificate shall expressly terminate the Memorandum of this Agreement required by Section 15.13 without qualification for all purposes. (2) The certificate described in Section (1) shall be prepared in a form suitable for recording and promptly after execution by all of the parties hereto shall be recorded in the public records of Pinellas County, Florida. ARTICLE 12. ARBITRATION 12.01 Agreement to Arbitrate. Only as specifically provided in this Agreement and only if any judicial or administrative action or proceeding has not been commenced with regard to the same matter and, if so, the party hereto commencing such action has not dismissed it, any disagreement or dispute between the parties may be arbitrated in the manner set forth in this Article 12. All parties hereby agree such arbitration, once commenced, shall be the exclusive procedure for resolving such disagreement or dispute and agree to be bound by the result of any such arbitration proceeding unless all parties mutually agree to terminate such proceeding prior to decision. If any arbitration proceeding under this part adversely affects the performance of any party hereunder, then any time periods provided herein for such performance by that party shall be tolled during the pendency of the arbitration proceeding affecting such performance. 12.02 Appointment of Arbitrators. (1) (a) Unless accelerated arbitration as provided in Section 12.08 hereof is invoked, any party invoking arbitration herewith shall, within five (5) days after giving notice of impasse in the dispute resolution process or upon following the expiration of the time period for such dispute resolution occurrence of the event permitting arbitration to be invoked, give written notice to that effect to the other parties, and shall in such notice appoint a disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association or a disinterested person not on such list to whom an objection is not made by any other party hereto within five (5) days of receipt of the notice of such appointment as the arbitrator or, if more than one (1) arbitrator is to be appointed, as one of the arbitrators. (b) Within ten (10) days after receipt of the notice described in paragraph (1), the other parties shall by written notice to the original party acknowledge that arbitration has been invoked as permitted by this Agreement, and shall either accept and approve the Attachment number 2 Page 27 of 152 24 v6 MIA 180692234 appointment of such individual set forth in the original notice as a sole arbitrator or shall appoint one (1) disinterested person per party of recognized competence in such field as an arbitrator. (2) (a) If two (2) arbitrators are appointed pursuant to subsection (a) above, the arbitrators thus appointed shall appoint a third disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association, and such three (3) arbitrators shall as promptly as possible determine such matter. (b) If the second arbitrator shall not have been appointed as provided in subsection (a), the first arbitrator shall, after ten (10) days notice to the parties, proceed to determine such matter. (c) If the two (2) arbitrators appointed by the parties pursuant to subsection (a) shall be unable to agree within fifteen (15) days after the appointment of the second arbitrator upon the appointment of a third arbitrator, they shall give written notice of such failure to agree to the parties, and, if the parties then fail to agree upon the selection of such third arbitrator within fifteen (15) days thereafter, then within ten (10) days thereafter each of the parties upon written notice to the other parties hereto may request the appointment of a third arbitrator by the office in or for the State of Florida (or if more than one office, the office located closest to the City) of the American Arbitration Association (or any successor organization thereto), or, in its absence, refusal, failure or inability to act, request such appointment of such arbitrator by the United States District Court for the Middle District of Florida (which request shall be filed in the division of that court responsible for the geographic area including the City), or as otherwise provided in Chapter 682, Florida Statutes, known and referred to as the Florida Arbitration Code, as amended. 12.03 General Procedures. In any arbitration proceeding under this part, those parties appointing arbitrators shall each be fully entitled to present evidence and argument to the sole arbitrator or panel of arbitrators. The arbitrator or panel of arbitrators shall only interpret and apply the terms of this Agreement and may not change any such terms, or deprive any party to this Agreement of any right or remedy expressed or implied in this Agreement, or award any damages or other compensation to any party hereto. The arbitration proceedings shall follow the rules and procedures of the American Arbitration Association (or any successor organization thereto) unless specifically modified by this Agreement, or as then agreed to by the parties hereto. 12.04 Majority Rule. In any arbitration proceeding under this part, the determination of the majority of the panel of arbitrators, or of the sole arbitrator if only one (1) arbitrator is used, shall be conclusive upon the parties and judgment upon the same may be entered in any court having jurisdiction thereof. The arbitrator or panel of arbitrators Attachment number 2 Page 28 of 152 25 v6 MIA 180692234 shall give written notice to the parties stating his or their determination within thirty (30) days after the conclusion of the hearing or final submission of all evidence or argument. 12.05 Replacement of Arbitrator. In the event of the failure, refusal or inability of any arbitrator to serve as such, promptly upon such determination being made by the affected arbitrator, the affected arbitrator shall give notice to the other two (2) arbitrators (if applicable) and to the parties hereto, and then a new arbitrator shall be promptly appointed as a replacement, which appointment shall be made by the party or the arbitrators who appointed the affected arbitrator in the same manner as provided for in the original appointment of the affected arbitrator in Section 12.02 hereof. 12.06 Decision of Arbitrators. (1) If any decision reached by arbitration as provided in this part requires performance by the Developer, the Developer covenants and agrees to comply with any decision of the arbitrator(s) promptly after the date of receipt by the Developer of such decision, and to continue such performance to completion with due diligence and in good faith. (2) If any such decision requires performance by the City, the City covenants and agrees to comply promptly with any decision reached by arbitrator(s) promptly after the date of receipt by the City of such decision, and to continue such performance to completion with due diligence and in good faith. (3) Nothing in this part, nor in any arbitration decision rendered under this part, shall be construed to require any payment by the City to the Developer not otherwise provided for herein. 12.07 Expense of Arbitration. The expenses of any arbitration proceeding pursuant to this part shall be borne equally by the parties to such proceeding, provided, however, for the purpose of this Section 12.07, "expenses" shall include the fees and expenses of the arbitrators and the American Arbitration Association with respect to such proceeding, but shall not include attorneys' fees or expert witness fees, or any costs incurred by attorneys or expert witnesses, unless (and to the extent) agreed to by the parties to such proceeding, which in the absence of such agreement shall be the responsibility of the party incurring such fees or costs. 12.08 Accelerated Arbitration. (1) (a) If any of the parties to any arbitration proceeding under this part determines the matter for arbitration should be decided on an expedited basis, then after an initial election to invoke arbitration pursuant to Section 12.02 hereof has been made, either party to such proceeding may invoke accelerated arbitration by giving notice thereof to the other parties no later than three (3) days after arbitration has been initially invoked and the other parties do not object within three (3) days thereafter. Attachment number 2 Page 29 of 152 26 v6 MIA 180692234 (b) Accelerated arbitration, for purposes of this Section 12.08, shall be accomplished by either party notifying the American Arbitration Association (or any successor organization thereto) that the parties have agreed to a single arbitrator, qualified to decide the matter for arbitration, to be appointed by the American Arbitration Association (or any successor organization thereto) with the consent of the parties to such proceeding within three (3) days after receipt of the request and to decide such matter within five (5) days after such appointment. (c) If an arbitrator is not so appointed with consent of the parties to the proceeding within three (3) days after the notice referred to in paragraph (2) is received by the American Arbitration Association, the accelerated proceeding under this Section 12.08 shall terminate and the procedures otherwise set forth in this Article 12 shall apply, unless the parties mutually agree to an extension of such time period. (2) The Developer and the City hereby agree to use such accelerated procedure only when reasonably necessary, to not contest the appointment of the arbitrator or his or her decision except as may be permitted by law, and that all other provisions of this part, except as are in conflict with this Section 12.08, remain in effect and applicable to an accelerated arbitration proceeding. 12.09 Applicable Law. To the extent not inconsistent with this article, any arbitration proceeding under this article shall be governed by the provisions of Chapter 682, Florida Statutes, as amended, known and referred to as the Florida Arbitration Code. 12.10 Arbitration Proceedings and Records. Any arbitration hearing under this article shall be considered a meeting subject to Section 286.011, Florida Statutes, and shall be open to any member of the public. Unless otherwise rendered confidential pursuant to or by the operation of any applicable law or order (other than an order by a sole arbitrator or a panel of arbitrators acting under this part), the record of such proceedings shall be a public record under Chapter 119, Florida Statutes. ARTICLE 13. UNAVOIDABLE DELAY. 13.01 Unavoidable Delay. (1) Any delay in performance of or inability to perform any obligation (other than an obligation to pay money) or meet any date or deadline (including without limitation the Commencement Date and the Completion Date) under this Agreement due to any event or condition described in subparagraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in this Section 13.01. Attachment number 2 Page 30 of 152 27 v6 MIA 180692234 (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). (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 Attachment number 2 Page 31 of 152 28 v6 MIA 180692234 damage, promptly after the City approves the Plans and Specifications (if and to the extent required, and subject to the limitations on the City's approval, under this Agreement) for such reconstruction or repairs. (2) The City shall review the Plans and Specifications (if and to the extent required, and subject to the limitations on the City's approval, under this Agreement) for such reconstruction or repairs as soon as possible after filing thereof by the Developer. The City agrees to approve the Plans and Specifications for such reconstruction or repairs if the reconstruction or repairs contemplated by such Plans and Specifications will restore the Project, or the damaged portion thereof, to substantially the same condition as existed prior to the occurrence of such loss or damage or such approval is otherwise required under Section 4.01(3), and if such Plans and Specifications conform to the applicable laws, ordinances, codes, and regulations in effect at the time of filing with the City of the plans and specifications for such reconstruction or repairs. (3) If (a) the insurance proceeds or condemnation award (as applicable) received are insufficient to complete the repairs, or (b) any Project Lender applies all or a portion of the insurance proceeds or condemnation award to the repayment of the Project Financing, or (c) the Developer is unable to obtain all of the Permits or approvals required under Applicable Laws for the reconstruction of the Project, then, in any of such events, the Developer may elect to terminate this Agreement by giving to the City notice of such election within one hundred eighty (180) days after the occurrence of the casualty or condemnation. If such notice is given, the rights and obligations of the parties under this Agreement shall cease as of the date of such notice, except for those provisions hereof (if any) which expressly survive termination. 14.02 Partial Loss or Damage to Project. Until the Completion Date, any loss or damage by fire or other casualty or exercise of eminent domain to the Project or Property, or any portion thereof, which does not render the Project or Property unusable for the use contemplated by Section 2.03 of this Agreement, shall not operate to terminate this Agreement or to relieve or discharge the Developer from the timely performance and fulfillment of the Developer's obligations pursuant to this Agreement, subject to an extension of time for an Unavoidable Delay, any requirements and conditions of the Project Lender, and the terms of Section 14.01(3). 14.03 Project Insurance Proceeds. (1) Whenever the Project, or any part thereof, shall have been damaged or destroyed, the Developer shall promptly make proof of loss and shall proceed promptly to collect, or cause to be collected, all valid claims which may have arisen against insurers or others based upon such damage or destruction. Attachment number 2 Page 32 of 152 29 v6 MIA 180692234 (2) Subject to the rights of a Project Lender, the Developer agrees that all proceeds of property or casualty insurance received by the Developer as a result of such loss or damage shall be available and shall be used for payment of the costs of the reconstruction or repair of the Project to the extent necessary to repair or reconstruct the Project, subject to the terms of this Article 14. 14.04 Notice of Loss or Damage to Project. The Developer shall promptly give the City written notice of any significant damage or destruction to the Project stating the date on which such damage or destruction occurred, the expectations of the Developer as to the effect of such damage or destruction on the use of the Project, and the proposed schedule, if any, for repair or reconstruction of the Project. 14.05 Condemnation of Project or Property; Application of Proceeds. In the event that part, but not all, of the Project or Property, or both, shall be taken by the exercise of the power of eminent domain at any time before the Expiration Date, subject to the rights of a Project Lender, the compensation awarded to and received by the Developer shall be applied first to the restoration of the Project, provided the Project can be restored and be commercially feasible for its intended use as contemplated by Section 2.03(1) of this Agreement after the taking, and, if not, can be retained by the Developer. 14.06 Condominium Documents Control. Notwithstanding anything contained in this Article 14 to the contrary, from and after the date that the Property is submitted to the condominium form of ownership as contemplated by Section 2.03(2) of this Agreement, the terms of the condominium documents shall govern and control with respect to (a) the reconstruction and repair of any loss or damage to the Project caused by fire or other casualty or eminent domain, and (b) the settlement, collection, use and application of any insurance proceeds or condemnation awards resulting therefrom. ARTICLE 15. MISCELLANEOUS 15.01 Assignments. (1) By the Developer. a. Prior to the Commencement Date, the Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Project, or any part thereof, only with the prior written consent of the City, which consent shall not be unreasonably withheld, provided that such party (hereinafter referred to as the "assignee"), to the extent of the sale, conveyance, assignment or other disposition by the Developer to the assignee, shall be bound by the terms of this Agreement the same as the Developer for such part of the Project as is subject to such sale, conveyance, assignment or other disposition. b. If the assignee of the Developer's right, title, interest and obligations in and to the Project, or any part thereof assumes all of the Attachment number 2 Page 33 of 152 30 v6 MIA 180692234 Developer's obligations hereunder for the Project, or that part subject to such sale, conveyance, assignment or other disposition, then the Developer shall be released from all such obligations hereunder which have been so assumed by the assignee, and the City agrees to execute an instrument evidencing such release, which shall be in recordable form. c. An assignment or transfer of the Project, or any part thereof, by the Developer to any corporation, limited liability company, limited partnership, general partnership, joint venture or other business entity, in which the Developer (or any person(s) or entity controlling, controlled by or under common control with the Developer) is the or a general partner or managing member or has either the controlling interest or through a joint venture or other arrangement shares equal management rights with a financial institution and maintains such controlling interest or equal management rights shall not be deemed an assignment or transfer subject to any restriction on or approvals of assignments or transfers imposed by this Section 15.01, provided, however, that notice of such assignment shall be given by the Developer to the City not less than thirty (30) days prior to such assignment being effective and the assignee shall be bound by the terms of this Agreement to the same extent as would the Developer in the absence of such assignment. (2) City's Right to Assign Rights. The City shall not have the right to assign or otherwise transfer this Agreement or any of its rights and obligations hereunder. 15.02 Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the City, and its successors and permitted assigns, and the Developer and its successors and permitted assigns, except as may otherwise be specifically provided herein. 15.03 Notices. (1) All notices, demands, requests for approvals or other communications given by either party to another shall be in writing, and shall be sent by registered or certified mail, postage prepaid, return receipt requested or by courier service, or by hand delivery to the office for each party indicated below and addressed as follows: To the Developer: To the City: Attachment number 2 Page 34 of 152 31 v6 MIA 180692234 L.O.M., Inc. c/o Surf Style, Inc. 4100 N. 28th Terrace Hollywood, Florida 33020 Attn: Controller City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager with copies to: with copies to: Greenberg Traurig, P.A. 1221 Brickell Avenue, 23rd Floor Miami, Florida 33131 Attn: Nancy B. Lash, Esq. Pamela K. Akin, Esq. Clearwater City Attorney 112 S. Osceola Avenue Clearwater, FL 33756 (2) Notices given by courier service or by hand delivery shall be effective upon delivery and notices given by mail shall be effective on the third (3rd) business day after mailing. Refusal by any person to accept delivery of any notice delivered to the office at the address indicated above (or as it may be changed) shall be deemed to have been an effective delivery as provided in this Section 15.03. The addresses to which notices are to be sent may be changed from time to time by written notice delivered to the other parties and such notices shall be effective upon receipt. Until notice of change of address is received as to any particular party hereto, all other parties may rely upon the last address given. 15.04 Applicable Law and Construction. The laws of the State of Florida shall govern the validity, performance and enforcement of this Agreement. This Agreement has been negotiated by the City and the Developer and the Agreement, including, without limitation, the Exhibits, shall not be deemed to have been prepared by the City or the Developer, but by all equally. 15.05 Venue; Submission to Jurisdiction. (1) For purposes of any suit action, or other proceeding arising out of or relating to this Agreement, the parties hereto do acknowledge, consent, and agree that venue thereof is Pinellas County, Florida. (2) Each party to this Agreement hereby submits to the jurisdiction of the State of Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States District Court for the Middle District of Florida, for the purposes of any suit, action, or other proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of a motion as a defense or otherwise that such action is brought in an inconvenient forum or that the venue of such action is improper or that the subject matter thereof may not be enforced in or by such courts. (3) If at any time during the term of this Agreement the Developer is not a resident of the State of Florida or has no office, employee, City or general Attachment number 2 Page 35 of 152 32 v6 MIA 180692234 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 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. Attachment number 2 Page 36 of 152 33 v6 MIA 180692234 15.09 Holidays. It is hereby agreed and declared that whenever a notice or performance under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal holiday observed in the City, it shall be postponed to the next following business day. 15.10 Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not physically attached hereto shall be treated as if they are part of this Agreement. 15.11 No Brokers. The City and the Developer hereby represent, agree and acknowledge that no real estate broker or other person is entitled to claim or to be paid a commission as a result of the execution and delivery of this Agreement, including any of the Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any or all of the Property. 15.12 Not an Agent of City. During the term of this Agreement, the Developer hereunder shall not be an agent of the City with respect to any and all services to be performed by the Developer (and any of its agents, assigns, or successors) with respect to the Project. 15.13 Memorandum of Development Agreement. The City and the Developer agree to execute, in recordable form, on the Effective Date, a short form "Memorandum of Agreement for Development of Property" in the form attached hereto as Exhibit M, and agree, authorize and hereby direct such Memorandum to be recorded in the Public Records of Pinellas County, Florida, as soon as possible after execution thereof. The Developer shall pay the cost of such recording. 15.14 Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills and is pursuant to and for a public purpose and municipal purpose and is in the public interest, and is a proper exercise of the City's power and authority. 15.15 No General Obligation. In no event shall any obligation of the City under this Agreement be or constitute a general obligation or indebtedness of the City, or a pledge of the ad valorem taxing power of the City within the meaning of the Constitution of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds. Neither the Developer nor any other party under or beneficiary of this Agreement shall ever have the right to compel the exercise of the ad valorem taxing power of the City or any other governmental entity or taxation in any form on any real or personal property to pay the City's obligations or undertakings hereunder. 15.16 Other Requirements of State Law. Nothing in this Agreement shall be deemed to relieve either party from full compliance with any provision of State law which is applicable to any of the obligations or under takings provided for in this Agreement. In the event that this Agreement omits an obligation to comply with any provision of State law in regard to any of the obligations or undertakings provided for in this Agreement, it is the intention of the parties that such applicable State law shall be deemed Attachment number 2 Page 37 of 152 34 v6 MIA 180692234 incorporated into this Agreement and made a part thereof. In the event that there is any conflict between the provisions of this Agreement and applicable State law, it is the intention of the parties that the Agreement shall be construed to incorporate such provisions of State law and that such provisions shall control. 15.17 Technical Amendments. In the event that due to minor inaccuracies contained herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to changes resulting from technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances which do not change the substance of this Agreement may be made and incorporated herein. The City Manager is authorized to approve such technical amendments, on behalf of the City, with the written approval of the Developer, and is authorized to execute any required instruments, amendments and approvals, to make and incorporate such amendment (so approved by the Developer) to this Agreement or any Exhibit attached hereto or any other agreement contemplated hereby. 15.18 Term; Expiration; Certificate. (1) If not earlier terminated as provided in Section 11.05, this Agreement shall automatically expire and no longer be of any force and effect on the Expiration Date. (2) Upon completion of the term of this Agreement, upon the request of the City or the Developer, all parties hereto shall execute the Agreement Expiration Certificate. The Agreement Expiration Certificate shall constitute (and it shall be so provided in the certificate) a conclusive determination of satisfactory completion of all obligations hereunder and the expiration of this Agreement. (3) In the event of any dispute as to whether any party is required to execute the Agreement Expiration Certificate, the dispute shall be resolved by arbitration as provided in Article 12. (4) The Agreement Expiration Certificate shall be in such form as will enable it to be recorded in the Public Records of Pinellas County, Florida. Following execution by all of the parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer in the Public Records of Pinellas County, Florida and the Developer shall pay the cost of such recording. 15.19 Approvals Not Unreasonably Withheld. The parties hereto represent that it is their respective intent as of the Effective Date and do covenant and agree in the future that all approvals, consents, and reviews will be undertaken and completed as expeditiously as possible, in good faith, and will not be arbitrarily or unreasonably withheld, conditioned or delayed, unless otherwise expressly authorized by the terms of this Agreement. Whenever in this Agreement the approval or consent of the City is Attachment number 2 Page 38 of 152 35 v6 MIA 180692234 required, the written approval or consent regarding the matter in question by the City Manager or his/her designee on behalf of the City shall satisfy the requirement for approval or consent of the City. However, any amendments or modifications to this Agreement or any exhibits hereto, except as otherwise provided in Section 15.17 hereof, shall require City Council approval. 15.20 Waiver of Jury Trial. The parties hereto hereby each knowingly, irrevocably, voluntarily and intentionally waive any right such party may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement to the parties to enter into this Agreement. 15.21 Effective Date. The Effective Date shall be the date of the last signature to this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURES ON FOLLOWING PAGE(S)] Attachment number 2 Page 39 of 152 36 v6 MIA 180692234 IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of this ____ day of _______________, 2010. Attest: By: Cynthia Goudeau, City Clerk THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: Frank V. Hibbard, Mayor Approved as to form: _____________________________ Pamela K. Akin City Attorney STATE OF FLORIDA ) ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me this day of_________________, 2010 by Frank V. Hibbard and Cynthia Goudeau, Mayor and City Clerk, respectively, for the City of Clearwater, Florida, on behalf of the City. By: _______________________________ Signature of Notary Public __________________________________ My Commission Expires: Printed, typed or stamp Attachment number 2 Page 40 of 152 37 v6 MIA 180692234 L.O.M., INC., a Florida corporation By: Name: Title: STATE OF FLORIDA ) ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me this ___ day of ____________, 2010 by ___________________________, as ___________________________ of L.O.M., INC, a Florida corporation, on behalf of the corporation. By: ____________________________ Signature of Notary Public __________________________________ My Commission Expires: Printed, typed or stamp Attachment number 2 Page 41 of 152 1 v6 MIA 180692234 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH the eastern half of the existing right-of-way of South Gulfview Boulevard (approximately 35’ in width) adjacent to the Property, which right-of-way area is depicted in Exhibit C and intended to be vacated pursuant to Section 5.02(1) of the foregoing Development Agreement. Attachment number 2 Page 42 of 152 1 v6 MIA 180692234 EXHIBIT B CONCEPTUAL PLANS FOR PROJECT Attachment number 2 Page 43 of 152 1 v6 MIA 180692234 EXHIBIT C RIGHT-OF-WAY AREA TO BE VACATED Attachment number 2 Page 44 of 152 Attachment number 2 Page 45 of 152 1 v6 MIA 180692234 EXHIBIT D FORM OF CONDOMINIUM DOCUMENTS Attachment number 2 Page 46 of 152 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 (Reserved for Clerk of Court) DECLARATION OF SURF STYLE CLEARWATER BEACH CONDOMINIUM L.O.M., Inc., a Florida corporation (the “Declarant”), hereby declares: 1. 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 attorneys-in-fact contained herein) and the 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: Attachment number 2 Page 47 of 152 - 2 - (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 Owner's 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 “3” attached hereto, and otherwise as may be set forth throughout this Declaration (such Allocated Interest being different and distinct from the Unit Owner's 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. 2.9 “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. Attachment number 2 Page 48 of 152 - 3 - (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 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 Florida 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. Attachment number 2 Page 49 of 152 - 4 - 2.31 “Law” shall mean all present and future laws, ordinances, orders, rules, regulations and requirements of all federal, state, county and municipal governments, courts, departments, agencies, commissions, boards and offices and of any other body or board or sovereign 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 “2” 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 Journal, 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. 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 “2” 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. Attachment number 2 Page 50 of 152 - 5 - 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-__ consisting primarily of parking spaces on the __________ 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 “2” as part of the Parking Unit]; (b) the Utility Facilities, including without limitation, water, sewage/waste, electric, cable/CATV/Internet/Telephone, which are not owned by third party utility providers or governmental agencies [which are, to the extent depicted on Exhibit “2”, 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 “2” as part of the applicable Retail Unit where located], (d) Central Pass-thru [depicted on Exhibit “2” 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 “2” within the applicable Unit where located] and (g) the Stairways [depicted on Exhibit “2” as part of the applicable Unit where located]. 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. 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 Owner's 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. Attachment number 2 Page 51 of 152 - 6 - 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. 3. 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 “2” 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 “2”, together with this Declaration, is sufficient in detail to 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; (a) the exclusive right to use such portion of the Common Elements as may be provided in this Declaration; (a) 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; (a) membership in the Association with the full voting rights appurtenant thereto; and (a) 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 Owner's 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 Units and/or with the use, operation, maintenance, repair and replacement of the Retail 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 “2” attached hereto, as supplemented by the following: (i) Upper Boundaries. The upper boundary of the Parking Unit shall be the horizontal plane above at elevation ___________ feet (_______’) N.G.V.D. (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. Attachment number 2 Page 52 of 152 - 7 - (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 “2” attached hereto, as supplemented by the following: (i) Upper 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 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. (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 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 Error! Reference source not found.Error! 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. Attachment number 2 Page 53 of 152 - 8 - 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 Owner's Unit for the support of such Owner's 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 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 Attachment number 2 Page 54 of 152 - 9 - 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 Repair 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 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 Attachment number 2 Page 55 of 152 - 10 - 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 any) that do not constitute Utility Facilities and that serve such Owner's 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 Attachment number 2 Page 56 of 152 - 11 - Unit Owner to promulgate rules and regulations governing the use and enjoyment thereof, as and to the extent permitted hereby. (j) 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 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. (l) 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 Attachment number 2 Page 57 of 152 - 12 - 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 permanently 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 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 party 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 attorney-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) Indemnity. 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. Attachment number 2 Page 58 of 152 - 13 - 4. 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. 5. 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 25% Retail Unit A 37.5% Retail Unit B 37.5% 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 Voting. 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 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 Attachment number 2 Page 59 of 152 - 14 - 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 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. Attachment number 2 Page 60 of 152 - 15 - 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 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 Attachment number 2 Page 61 of 152 - 16 - 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 Owner's 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 to 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 Application 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. 7. 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 “4” and “5”, respectively), as amended from time to time. 7.2 Restraint Upon 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. 7.3 Approval 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 Liability 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 Attachment number 2 Page 62 of 152 - 17 - 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 Retail Unit Owners shall be permitted to (i) operate from the Retail 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 from, the Retail Units at any and all times, (iii) operate the Retail Units, and conduct business from the Retail Units in a manner consistent with other retail establishments in Florida, and in a manner that parking, lighting, signage, and convenient access by invitees/customers is consistent with that of such other retail 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 Retail Unit Owners broad discretion in operating from the Retail 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 Property. 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. 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 Attachment number 2 Page 63 of 152 - 18 - 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 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 costs 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 Attachment number 2 Page 64 of 152 - 19 - 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 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 Work 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 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 9.1(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 Attachment number 2 Page 65 of 152 - 20 - 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 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 Owner's possession; (iii) Current as-built plans and specifications, to the extent in the Unit Owner's possession; and (iv) 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 Testing. Attachment number 2 Page 66 of 152 - 21 - (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 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 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 Attachment number 2 Page 67 of 152 - 22 - 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. (iii) 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 borne 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 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 Attachment number 2 Page 68 of 152 - 23 - 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 respective employees and agents and shall, at a minimum, have limits of coverage that are not less than the following: (i) $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, products/completed 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 Attachment number 2 Page 69 of 152 - 24 - 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 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+/XIII” (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 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). Attachment number 2 Page 70 of 152 - 25 - 10.5 D & O 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 & O” 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 Compliance 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 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 Casualty. 11.1 Reconstruction or Repair After Casualty. 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 Attachment number 2 Page 71 of 152 - 26 - 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 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 Casualty 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 Party. 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 govern. 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 Application 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 Owner's 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 Attachment number 2 Page 72 of 152 - 27 - 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. (b) Collection and Application of Insurance Proceeds Upon Casualty to More than One Unit or to Common Elements or Shared Components. 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 attorney-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 attorney-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 attorney-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. (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 Attachment number 2 Page 73 of 152 - 28 - 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 Unit may reasonably be able to be opened prior to another Unit). Subject only to delays resulting from Force Majeure, the Responsible Insurance Party 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 Attachment number 2 Page 74 of 152 - 29 - 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 Charges 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 amount of insurance proceeds available will permit, such proceeds being allocated between the Owners whose Units were affected by such Casualty, on a pari 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 Attachment number 2 Page 75 of 152 - 30 - 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 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 Party 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 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 Attachment number 2 Page 76 of 152 - 31 - 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. (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 Attachment number 2 Page 77 of 152 - 32 - 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. 13.2 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: (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 Attachment number 2 Page 78 of 152 - 33 - 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 a majority 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, 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 a majority 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, 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 Attachment number 2 Page 79 of 152 - 34 - 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 properly 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 (v) 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. 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. Attachment number 2 Page 80 of 152 - 35 - 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 attorneys-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. 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 overnight 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 overnight 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 Governing 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 Attachment number 2 Page 81 of 152 - 36 - 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 Severability. 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. 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 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 Attachment number 2 Page 82 of 152 - 37 - 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 Adjustment 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. Attachment number 2 Page 83 of 152 - 38 - 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: L.O.M., Inc., a Florida corporation By: Name: Name: Title: (Corporate Seal) Name: STATE OF ) ) SS: COUNTY OF ) The foregoing Declaration was acknowledged before me, this ___ day of ____________, _____, by __________________, ____________________ of L.O.M., Inc., a Florida corporation on behalf of said corporation. He/she is personally known to me or has produced _________________________ as identification. Name: Notary Public, State of Florida My Commission Expires: Commission No.: (Notarial Seal) Attachment number 2 Page 84 of 152 - 39 - 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 By: Name: Name: Title: Name: [CORPORATE SEAL] STATE OF FLORIDA ) ) SS: COUNTY OF PINELLAS ) 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: Notary Public, State of Florida My Commission Expires: Commission No.: (Notarial Seal) Attachment number 2 Page 85 of 152 - 40 - EXHIBIT “1” Legal Description of the Condominium Property To be supplemented Attachment number 2 Page 86 of 152 - 41 - EXHIBIT “2” Survey Plot Plans To be supplemented Attachment number 2 Page 87 of 152 - 42 - 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 of Retail Unit Allocated Interest of Retail Unit Allocated Interest of Parking Unit Insurance _____% _____% 70% Landscaping: Off-site Perimeter sidewalks and landscaping Central Pass-thru 75% 75% 25% 25% 0% 0% Cleaning: Exterior and Marble Floor Trash Removal & Compactor Recycling Window Cleaning 45% 45% 50% 70% 45% 45% 50% 30% 10% 10% 0% 0% Maintenance and Repairs: Fire/Emergency Systems Radios and Repeater Stairways HVAC Other Maintenance and Repairs Responsible for 100% of it’s own separate systems - Responsible for 100% of it’s own separate systems % Responsible for 100% of it’s own separate systems Utilities and Services: Electricity Water and Sewer Alarm Monitoring Extermination Drainage (and injection wells) Responsible for 100% of it’s own separate systems Responsible for 100% of it’s own separate systems Responsible for 100% of it’s own separate systems Roof/Water Resistant Membranes _____% _____% 50% Common Parking Facilities (drives, ramps, access control systems) _____ _____ 6/7th Life Safety Systems Responsible for 100% of it’s own separate systems Responsible for 100% of it’s own separate systems Responsible for 100% of it’s own separate systems Exterior Lighting _____ _____ _____ Attachment number 2 Page 88 of 152 - 43 - 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 1. Identity. 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 1st and terminating December 31st 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. 2. 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 Meeting. 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)(j), Florida Statutes. 3.3 Participation by 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 Meeting; 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 Attachment number 2 Page 89 of 152 - 44 - 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 Voting. (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. (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 Attachment number 2 Page 90 of 152 - 45 - 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 Adjourned 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. 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; (j) Unfinished business; (k) New business; (l) Adjournment. Such order may be waived in whole or in part by direction of the chairman. 3.10 Minutes of Meeting. 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 Attachment number 2 Page 91 of 152 - 46 - 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 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). 4.8 Joinder in Meeting by 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. Attachment number 2 Page 92 of 152 - 47 - 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). 5. Authority 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. 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. Attachment number 2 Page 93 of 152 - 48 - 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. 9. 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 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. Attachment number 2 Page 94 of 152 - 49 - 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. 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 Attachment number 2 Page 95 of 152 - 50 - 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 1 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 Pinnelas County, Florida, and known as SURF STYLE CLEARWATER BEACH CONDOMINIUM (the "Condominium"). 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 Pinnelas County, Florida, unless herein provided to the contrary, or unless the context otherwise requires. Attachment number 2 Page 96 of 152 - 51 - 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 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. Attachment number 2 Page 97 of 152 - 52 - 6.3 Voting. 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 8 INCORPORATOR The name and address of the Incorporator of this Corporation is: Name Address ______________ __________________ __________________ __________________ 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 __________________ __________________ __________________ Attachment number 2 Page 98 of 152 - 53 - __________________ Vice President __________________ __________________ __________________ __________________ Vice President __________________ __________________ __________________ __________________ Secretary/ Treasurer __________________ __________________ __________________ __________________ 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, 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 ______________ __________________ __________________ Attachment number 2 Page 99 of 152 - 54 - __________________ __________________ ______________ __________________ __________________ __________________ __________________ ______________ __________________ __________________ __________________ __________________ ______________ __________________ __________________ __________________ __________________ 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. Attachment number 2 Page 100 of 152 - 55 - 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, the Association) by reason of the fact that he or she is or was a director, officer, employee 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. 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 Attachment number 2 Page 101 of 152 - 56 - 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(a) 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 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, Attachment number 2 Page 102 of 152 - 57 - 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, 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 Attachment number 2 Page 103 of 152 - 58 - (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. 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 BY-LAWS 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. Attachment number 2 Page 104 of 152 - 59 - 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 in the Act (the latter to control over the former to the extent provided for in the Act) and/or by unanimous written consent of all Owners, joined by their Mortgagees. 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 Pinnelas 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. Attachment number 2 Page 105 of 152 - 60 - 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 Attachment number 2 Page 106 of 152 - 61 - 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 Pinnelas, 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. Attachment number 2 Page 107 of 152 1 v6 MIA 180692234 EXHIBIT E FORM OF PUBLIC PARKING COVENANT Attachment number 2 Page 108 of 152 v1 MIA 180,825,646 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 (Reserved for Clerk of Court) PARKING COVENANT THIS PARKING COVENANT (the "Covenant") is made as of the ____ day of ________________, 2009, 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"). R E C I T A L S: 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 "Property"). B. City and Declarant entered into that certain Agreement For Development of Property (Surf Style Condominium Project) dated ______________ ___, 2009 (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 project 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. “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 (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 Attachment number 2 Page 109 of 152 2 v1 MIA 180,825,646 over the Project. 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 not less than 300 parking spaces for public parking to the extent permitted by Applicable Laws and 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 parking spaces at the Property or the designated parking operator(s) (as applicable) to operate such parking spaces. In the event of the restoration, renovation and/or redevelopment of the Project (whether voluntary, following a casualty or otherwise), the obligation to maintain 300 parking spaces on the Property for public parking shall abate and toll during the period of such restoration, renovation and/or redevelopment until the date a certificate of occupancy is issued for the restored, renovated or new development. The required 300 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 300 parking spaces for public parking on the Property subject to the terms and conditions hereof, but not dictate where the parking spaces are or will be located on the Property or the manner in which title to the Property or such parking spaces is held (i.e., whether through single fee title, condominium form of ownership, ground lease or otherwise). 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. 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. 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 party 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 Attachment number 2 Page 110 of 152 3 v1 MIA 180,825,646 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 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 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. 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. 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:__________________________ _______________________________ Name:__________________________ L.O.M., INC., a Florida corporation By: Name: Title: STATE OF FLORIDA ) ) COUNTY OF ________ ) The foregoing instrument was acknowledged before me this ___ day of ____________, 2009 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 Attachment number 2 Page 111 of 152 v1 MIA 180,825,646 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Attachment number 2 Page 112 of 152 1 v6 MIA 180692234 EXHIBIT F FORM OF MAINTENANCE EASEMENT (BREAK WALL) Attachment number 2 Page 113 of 152 v9 MIA 180,823,377 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 (Reserved for Clerk of Court) CONSTRUCTION, ACCESS AND MAINTENANCE EASEMENT AGREEMENT THIS CONSTRUCTION, ACCESS AND MAINTENANCE EASEMENT AGREEMENT ("Agreement") is made and entered into as of the ___ day of December, 2009, by and between the CITY OF CLEARWATER, a municipal corporation of the State of Florida ("City") and L.O.M., INC., a Florida corporation ("LOM"). R E C I T A L S: A. LOM 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 ("LOM Property"). B. The City owns or controls that certain parcel of land adjacent to and west of the LOM Property, which is legally described or depicted in Exhibit C attached hereto ("City Property"). C. The City and LOM entered into that certain letter agreement dated ________________ ___, 2009 (together with any amendments, modifications, extensions, restatements and supplements from time to time, the "Letter Agreement"), which governs the construction of a "wave dissipating wall" on the City Property ("Break Wall"), as more particularly described in the Letter Agreement. D. The City desires to grant and create, on the terms and conditions hereinafter set forth, certain construction, access and maintenance easements over, under and upon that portion of the City Property more particularly described in Exhibit C attached hereto ("Easement Area") in favor of LOM and all of the present and future owners of the LOM Property. 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 which are hereby acknowledged, the City and LOM hereby agree that the foregoing recitals are true and correct and further agree as follows: Attachment number 2 Page 114 of 152 v9 MIA 180,823,377 2 1. Grant of Easements to LOM. Subject to the conditions herein, the City hereby grants to LOM a perpetual non-exclusive easement over, through, upon, across and under the Easement Area for the following purposes: (i) ingress and egress from the LOM Property to and from the Easement Area for the purpose of installation, construction, maintenance, repair restoration and replacement of the Break Wall (ii) installation and construction of the Break Wall and other related and ancillary items within the Easement Area, and (iii) maintenance, repair, restoration and replacement of the Break Wall. The easements granted herein include the right to keep and maintain the Break Wall within the Easement Area (and repair, restore and replace same in the event of damage or destruction of any kind or nature) in perpetuity. The foregoing easements shall be in favor of and appurtenant to the LOM Property, to be used in common with the owner(s) from time to time of the LOM Property and their respective employees, contractors, operators, agents and representatives. 2. Construction and Maintenance of Break Wall. LOM shall, at its sole cost and expense, construct the Break Wall in accordance with the terms and conditions set forth herein and the Letter Agreement. LOM shall submit an application to the City for the necessary permit to allow construction of the Break Wall within thirty (30) days following recordation of this Agreement, and shall substantially complete construction of the Break Wall within one hundred fifty (150) days following the issuance of such permit, subject to force majeure. Failure to apply for such permit or substantially complete construction of the Break Wall (subject to force majeure) as provided herein shall result in the termination of this Agreement. Such termination shall be recorded by the City in the Public Records of Pinellas County, Florida. LOM shall, at its sole cost and expense, (a) except as otherwise provided herein, maintain and repair the Break Wall in accordance with the requirements of the Federal Emergency Management Agency (including any maintenance and operation plan required by such agency), and City of Clearwater standards for maintenance of knee walls within Beach Walk (as contemplated by Beach by Design), and (b) repair any damage to the landscaping, surfaces, structures or utilities within the Easement Area or within Beach Walk (as contemplated by Beach by Design) caused by the construction, maintenance, repair, restoration, and/or replacement of the Break Wall. Notwithstanding the foregoing, the City shall reimburse LOM for all costs and expenses incurred in the maintenance, repair and restoration of the Break Wall necessitated by or required as a result of the negligence or willful misconduct of the City, its employees, contractors, operators, agents or representatives. 3. No Obstruction of Traffic. LOM shall not cause or permit any material obstruction to the free flow of vehicular or pedestrian traffic in and through the Easement Area or to the use and exercise of the easement rights granted herein except during temporary periods when the Break Wall is being constructed, maintained or repaired. All construction, maintenance or repair work performed by LOM 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. The City 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. Attachment number 2 Page 115 of 152 v9 MIA 180,823,377 3 5. Liens. LOM 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 LOM. LOM 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, LOM shall bond against or discharge same within thirty (30) days after receiving written notice of the filing of same. LOM shall not have any authority to create any liens for labor or material on the Easement Area and all persons contracting with LOM 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 charged with notice that they must look solely to LOM to secure payment of any bill for work done or material furnished at the request or instruction of LOM. 6. Mortgages. LOM shall be prohibited from mortgaging or otherwise encumbering the City's Property; however, any mortgage of the LOM Property may include and encumber the non-exclusive easement rights granted pursuant to this Agreement as recorded in the Public Records of Pinellas County, Florida (as amended from time to time) over the City Property. 7. 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 the City, the right of self-help under the circumstance set forth in paragraph 8 below. 8. Self-Help. If LOM fails to maintain the Break Wall in the condition described in paragraph 2 above, then the City may give a Default Notice to LOM, and LOM shall have the applicable cure period (described in paragraph 7 above) following receipt of such notice to restore the Break Wall to the required condition. If LOM fails to restore the Break Wall within said cure period, then, in addition to the other remedies provided herein, the City may restore same to the required condition and thereafter LOM shall reimburse the City 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. 9. 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. 10. Amendments; Termination. Except as otherwise provided in paragraph 2, this Agreement may not be amended, modified or terminated except by written agreement of all of the then fee owners of the City Property and 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. Attachment number 2 Page 116 of 152 v9 MIA 180,823,377 4 11. 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 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. Severability. 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 Attachment number 2 Page 117 of 152 v9 MIA 180,823,377 5 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. Counterparts. This Agreement may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which when taken together shall be deemed to be one and the same instrument. g. Governing Laws. 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. h. Expenses. 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. i. Exhibits. All of the Exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. j. 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.] Attachment number 2 Page 118 of 152 v9 MIA 180,823,377 6 EXECUTED as of the date and year first above written. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF: _______________________________ Name:__________________________ _______________________________ Name:__________________________ THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: Frank V. Hibbard, Mayor Attest: By: Cynthia Goudeau, City Clerk Approved as to form: _____________________________ Pamela K. Akin City Attorney STATE OF FLORIDA ) ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me this day of_________________, 2009 by Frank V. Hibbard and Cynthia Goudeau, Mayor and City Clerk, respectively, for the City of Clearwater, Florida, on behalf of the City. By: _______________________________ Signature of Notary Public __________________________________ My Commission Expires: Printed, typed or stamp Attachment number 2 Page 119 of 152 v9 MIA 180,823,377 7 SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF: _______________________________ Name:__________________________ _______________________________ Name:__________________________ L.O.M., INC., a Florida corporation By: Name: Title: STATE OF FLORIDA ) ) COUNTY OF ________ ) The foregoing instrument was acknowledged before me this ___ day of ____________, 2009 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 Attachment number 2 Page 120 of 152 v9 MIA 180,823,377 8 EXHIBIT A LOM PROPERTY Attachment number 2 Page 121 of 152 v9 MIA 180,823,377 9 EXHIBIT B INTENTIONALLY OMITTED Attachment number 2 Page 122 of 152 v9 MIA 180,823,377 10 EXHIBIT C EASEMENT AREA Attachment number 2 Page 123 of 152 1 v6 MIA 180692234 EXHIBIT G FORM OF SIDEWALK AND TURN-LANE EASEMENT Attachment number 2 Page 124 of 152 1 v6 MIA 180692234 EXHIBIT H LIST OF REQUIRED PERMITS AND APPROVALS Attachment number 2 Page 125 of 152 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 Attachment number 2 Page 126 of 152 1 v6 MIA 180692234 EXHIBIT I PROJECT DEVELOPMENT SCHEDULE Attachment number 2 Page 127 of 152 Act ID Activity Description Rem Dur Early Start Early Finish 30 2009 07 DEC 2010 14 JAN 2011 21 FEB 28 MAR 04 APR 11 MAY 18 JUN 25 JUL 01 AUG 08 SEP 15 OCT 22 NOV 01 DEC 08 JAN 15 FEB 22 MAR 29 APR 05 MAY 12 UN 19 26 03 10 17 24 31 07 14 21 28 05 12 19 26 02 09 16 23 30 06 13 20 27 04 11 18 25 01 08 15 22 29 06 13 20 27 03 10 17 24 31 07 14 21 28 07 14 21 28 04 11 18 25 02 09 16 23 3 Surf Style Mixed-Use Structure Owner Building 1022 Owner approve 50% design 0 29DEC09 1024 City Council Approval of Building 0 14JAN10 * 1023 Owner approve 90% design 0 27JAN10 1025 Approve and Pay Progress Energy Costs 0 04MAR10 1026 Progress Energy Procurement (8-10 Weeks)50 04MAR1012MAY10 1027 Erect detour signs, vacate Site 4 13MAY1016MAY10 1028 Relocate Power Transformer and Gas Lines 0 14MAY10 1030 Permanent Power Available 0 18JUN10 1031 Phone Lines 0 13DEC10 1032 Pay Water/Sewer Impact Fees 0 13DEC10 1033 Fire Alarm Monitoring 0 27DEC10 DRC 1051 Approve Exterior Color Chip Samples for DRC 0 10SEP09 1052 DRC meeting (Initial)0 01OCT09 1053 DRC Meeting (Second)0 05NOV09 1054 CDB Meeting 0 15DEC09 Project Wide 1000 Submission of FEMA letter of map revision 0 12JUN09 1001 Council Approval of Term sheet 0 18JUN09 1003 Developers Agreement 0 02JUL09 A31AUG09 1004 FEMA approval of letter of map revision 0 08SEP09 1008 City Council Approval of Developers Agreement 0 14JAN10 * 1009 FEMA Flood Zone Change 65 11FEB1012MAY10 Wave Wall 1071 Approve and Pay Progress Energy Costs 0 14DEC09 1072 Progress Energy Procurement (8-10 Weeks)35 14DEC0908FEB10 1073 City Council Meeting for Wave Wall Agreement 0 17DEC09 1074 Submit As-built Survey to FEMA 0 11FEB10 Finfrock Design Building 2020 Civil design for Permit 19 14DEC0915JAN10 2021 Building Design for Permit 48 14DEC0925FEB10 2022 DEP Permitting 60 18JAN1009APR10 2023 SWFWMD Permitting 75 18JAN1030APR10 2025 Elevators at Garage Shop Drawing Approval 5 17FEB1023FEB10 2024 Building Permit Approval 60 26FEB1020MAY10 2026 Obtain Demolition Permit 0 13MAY10 * 2028 Obtain Building Permit 0 21MAY10 2027 Obtain Foundation Only Permit (if needed)0 21JUN10 DRC 2040 Building design for Site plan approval 0 29JUN0928AUG09 2041 Civil design for site plan approval 0 06JUL09 A28AUG09 2042 Provide Exterior Color Chip Samples to Owner 0 06JUL09 A27AUG09 2043 DRC/Site Plan Permit Approval 0 31AUG0915DEC09 2044 Submission of DRC 0 01SEP09 2045 Completeness Determination 0 11SEP09 2046 DRC Resubmittal Info Due 0 12OCT09 2047 2nd DRC Resubmittal Info Due 0 13NOV09 Project Wide 2000 Owner Criteria Meeting 0 26JUN09 Wave Wall 2060 Additional Survey of Detailed Utility Locates 0 05NOV0909NOV09 2061 Wave Wall Permit Documents 0 12NOV0904DEC09 2062 Process Building & ROW Use Permit 10 04DEC0904JAN10 2063 As-Built Wave Wall 1 04FEB1004FEB10 Finfrock Construction Building 3000 Elevators & Escalator Shop Drawing Submittal 15 27JAN1016FEB10 3001 Precast Fabrication 90 26FEB10 *01JUL10 3002 Finfrock Mobilization including Site Fence 5 17MAY1021MAY10 3003 Site Demolition 15 25MAY1014JUN10 3004 Utility Relocation 20 01JUN1028JUN10 3005 MOT/Lane Closure 175 01JUN1031JAN11 Owner approve 50% design City Council Approval of Building Owner approve 90% design Approve and Pay Progress Energy Costs Progress Energy Procurement (8-10 Weeks) Erect detour signs, vacate Site Relocate Power Transformer and Gas Lines Permanent Power Available Phone Lines Pay Water/Sewer Impact Fees Fire Alarm Monitoring for DRC ng (Second) CDB Meeting n City Council Approval of Developers Agreement FEMA Flood Zone Change Approve and Pay Progress Energy Costs Progress Energy Procurement (8-10 Weeks) City Council Meeting for Wave Wall Agreement Submit As-built Survey to FEMA Civil design for Permit Building Design for Permit DEP Permitting SWFWMD Permitting Elevators at Garage Shop Drawing Approval Building Permit Approval Obtain Demolition Permit Obtain Building Permit Obtain Foundation Only Permit (if needed) er DRC/Site Plan Permit Approval Due RC Resubmittal Info Due l Survey of Detailed Utility Locates Wave Wall Permit Documents Process Building & ROW Use Permit As-Built Wave Wall Elevators & Escalator Shop Drawing Submittal Precast Fabrication Finfrock Mobilization including Site Fence Site Demolition Utility Relocation MOT/Lane Closure Run date22DEC09 © Primavera Systems, Inc. Exhibit "I" Project Development Schedule Surf-Style Mixed-Use Parking Structure Clearwater Beach, Florida Early bar Progress bar Critical bar Summary bar Progress point Critical point Summary point Start milestone point Finish milestone point Attachment number 2 Page 128 of 152 Act ID Activity Description Rem Dur Early Start Early Finish 30 2009 07 DEC 2010 14 JAN 2011 21 FEB 28 MAR 04 APR 11 MAY 18 JUN 25 JUL 01 AUG 08 SEP 15 OCT 22 NOV 01 DEC 08 JAN 15 FEB 22 MAR 29 APR 05 MAY 12 UN 19 26 03 10 17 24 31 07 14 21 28 05 12 19 26 02 09 16 23 30 06 13 20 27 04 11 18 25 01 08 15 22 29 06 13 20 27 03 10 17 24 31 07 14 21 28 07 14 21 28 04 11 18 25 02 09 16 23 3 3006 Test Foundation Installation and Load Test 10 08JUN1021JUN10 3007 Drilled Shafts (GL 1-7)35 22JUN1009AUG10 3008 Shaft Caps (GL 1-7)30 10AUG1020SEP10 3009 Precast Erection 60 21SEP1013DEC10 3010 Storm Vault Control Structure and Pipe 5 21SEP1027SEP10 3011 Waterproofing/Caulking 90 28SEP1031JAN11 3012 Electrical 80 28SEP1017JAN11 3013 Plumbing 78 05OCT1020JAN11 3014 Fire Protection Sprinklers 80 12OCT1031JAN11 3015 Slab on Grade 50 26OCT1003JAN11 3016 Deck Coating 40 02NOV1027DEC10 3017 HVAC 40 02NOV1027DEC10 3018 Elevators & Escalator in Garage 65 16NOV1014FEB11 3019 Operator Office 30 23NOV1003JAN11 3020 Exterior Wall EIFS/Painting 40 30NOV1024JAN11 3021 Retail Partition Walls 40 30NOV1024JAN11 3022 Storefront 30 30NOV1010JAN11 3023 Door & Hardware Install 30 14DEC1024JAN11 3024 Aluminum Stair Rails 10 28DEC1010JAN11 3025 Coronado Curb and Decel Lane 20 28DEC1024JAN11 3026 Restroom Buildout 20 28DEC1024JAN11 3027 Landscape/Irrigation 15 04JAN1124JAN11 3028 Paint Pavement Markings 10 25JAN1107FEB11 3029 Signage 5 25JAN1131JAN11 3030 Folding Partitions 10 25JAN1107FEB11 3031 Elevators at Garage Adjustment 5 15FEB1121FEB11 3032 Final Inspections 5 15FEB1121FEB11 9999 Sub. Substantial Completion 0 15FEB11 3033 Elevator Inspections 5 22FEB1128FEB11 3034 Punch List 6 22FEB1101MAR11 3035 Substantial Completion 0 01MAR11 3036 Obtain C.O.0 08MAR11 Wave Wall 3500 Coordinate Design w/ Progress Energy 0 22SEP0913NOV09 3501 Fence and Shut Down Walkway 33 12JAN1025FEB10 3502 Progress Energy to Disconnect Lighting Circuit 0 12JAN10 3503 Trench and Probe along West edge of 1 12JAN1012JAN10 3504 Install Conduit for Light Pole Relocation 5 12JAN1018JAN10 3505 Reroute Irrigation Lines 2 13JAN1014JAN10 3506 Demo Portion of Beachwalk 2 15JAN1018JAN10 3508 Install Vinyl Sheet Pile 12 15JAN1001FEB10 3509 Form & Pour Walls & Piers 8 25JAN1003FEB10 3510 Make Template for Precast Caps 1 04FEB1004FEB10 3511 Pour Colored Concrete Walk 3 04FEB1008FEB10 3512 Produce Precast Caps 20 05FEB1004MAR10 3513 Disconnect Uplighting & Install New Conduit 2 09FEB1010FEB10 3514 Install Final Irrigation & Landscaping 3 09FEB1011FEB10 3515 Progress Energy to Relocate Walk Lighting 3 09FEB1011FEB10 3516 Install Precast Caps 2 05MAR1008MAR10 3517 Final Inspection 1 09MAR1009MAR10 3518 Certificate of Completion 0 10MAR10 315 12JUN0908MAR11 Test Foundation Installation and Load Test Drilled Shafts (GL 1-7) Shaft Caps (GL 1-7) Precast Erection Storm Vault Control Structure and Pipe Waterproofing/Caulking Electrical Plumbing Fire Protection Sprinklers Slab on Grade Deck Coating HVAC Elevators & Escalator in Garage Operator Office Exterior Wall EIFS/Painting Retail Partition Walls Storefront Door & Hardware Install Aluminum Stair Rails Coronado Curb and Decel Lane Restroom Buildout Landscape/Irrigation Paint Pavement Markings Signage Folding Partitions Elevators at Garage Adjustment Final Inspections Sub. Substantial Completion Elevator Inspections Punch List Substantial Completion Obtain C.O. nate Design w/ Progress Energy Fence and Shut Down Walkway Progress Energy to Disconnect Lighting Circuit Trench and Probe along West edge of Beachwalk Install Conduit for Light Pole Relocation Reroute Irrigation Lines Demo Portion of Beachwalk Install Vinyl Sheet Pile Form & Pour Walls & Piers Make Template for Precast Caps Pour Colored Concrete Walk Produce Precast Caps Disconnect Uplighting & Install New Conduit Install Final Irrigation & Landscaping Progress Energy to Relocate Walk Lighting Install Precast Caps Final Inspection Certificate of Completion Run date22DEC09 © Primavera Systems, Inc. Exhibit "I" Project Development Schedule Surf-Style Mixed-Use Parking Structure Clearwater Beach, Florida Early bar Progress bar Critical bar Summary bar Progress point Critical point Summary point Start milestone point Finish milestone point Attachment number 2 Page 129 of 152 1 v6 MIA 180692234 EXHIBIT J CITY PARKING GARAGE STANDARDS Attachment number 2 Page 130 of 152 1 v6 MIA 180692234 EXHIBIT K PARKING STRUCTURE MAINTENANCE STANDARDS Attachment number 2 Page 131 of 152 1 v6 MIA 180692234 EXHIBIT L FORM OF PUT AGREEMENT Attachment number 2 Page 132 of 152 MIA 180,691,006v3 9-25-09 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 MERCANTIL COMMERCEBANK, N.A., a national banking association (the "Lender"), and THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the “City”). R E C I T A L S: 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 ______________, 2009 (the "Development Agreement"). The Development Agreement sets forth the terms and conditions governing the development and construction of a 30,000+/- square foot retail/commercial project, including a parking garage containing approximately 347 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 "Property"). 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. 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 (defined below) 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. D. 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 under certain circumstances in the event it acquired title to the Project following an event of default by Developer. 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 conditions hereinafter set forth. At a duly called public meeting on _____________, Attachment number 2 Page 133 of 152 2 MIA 180,691,006v3 9-25-09 2009, 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, prior to the date which is five (5) years following completion of the Project (the "Put Outside Date"), Lender acquires title to the Project (through foreclosure, deed in lieu of foreclosure or otherwise) following an event of default of Developer under the Project Financing, then, at the election of Lender, the City shall 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). For purposes hereof, the Project shall be deemed complete when 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. Lender shall exercise the foregoing right to "put" the Parking Unit to the City by written notice (the "Put Notice") to the City provided in accordance with paragraph 14 of this Agreement, which Put Notice shall be sent prior to the Put Outside Date, whereupon the parties shall close the purchase and sale of the Parking Unit pursuant to the terms and conditions of this Agreement. 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; and (d) The Parking Unit shall be in the condition required under Exhibit J to the Development Agreement. Attachment number 2 Page 134 of 152 3 MIA 180,691,006v3 9-25-09 The Put Notice shall include a certification from Lender that all of the Put Conditions have been met. 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 Notice or any of the Put Conditions are not met by 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. Deposit. Within five (5) days following receipt of the Put Notice, the City shall deliver to Chicago Title Insurance Company (or another nationally recognized title insurance company acceptable to the City and Lender), as Escrow Agent (the “Escrow Agent”), the sum of Five Hundred Thousand and No/100 Dollars ($500,000.00), which shall be held as an earnest money deposit hereunder (the “Deposit”). The Deposit shall be held by Escrow Agent in an interest-bearing account. 4. Terms of Payment. The Purchase Price shall be paid to Lender as follows: $ 500,000.00 being the Deposit referred to in paragraph 3 of this Agreement, which sum shall be paid to Lender at Closing (defined below). $ 8,700,000.00 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. 5. 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 B 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 Attachment number 2 Page 135 of 152 4 MIA 180,691,006v3 9-25-09 (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 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. 6. Closing. The closing (the “Closing”) shall be held on the date which is thirty (30) days following the City's receipt of the Put Notice, provided that the City shall have no obligation to purchase the Parking Unit and close this transaction if the Put Notice is not delivered or Put Conditions are not met by the Outside Put 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 C, 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 9(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 City shall each execute counterpart closing statements and such other documents as are reasonably necessary to consummate the transaction contemplated by this Agreement. 7. Prorations; Utilities. (a) Prorations Generally. Real estate and personal property taxes, costs and revenues and all other proratable items shall be prorated as of the date of Closing. (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 party, the taxes for the year of Attachment number 2 Page 136 of 152 5 MIA 180,691,006v3 9-25-09 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 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. 8. Closing Costs. The City and Lender shall share the cost of documentary stamps due on the special warranty deed and recording costs for the deed on a 50-50 basis. The City shall be solely responsible for the cost of examining title and obtaining any 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 17(c) below. All other closing costs shall be apportioned in the manner customary for commercial for real estate transactions in Pinellas County, Florida. 9. Representations and Warranties. Attachment number 2 Page 137 of 152 6 MIA 180,691,006v3 9-25-09 (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 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. (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 Attachment number 2 Page 138 of 152 7 MIA 180,691,006v3 9-25-09 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 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, 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 Attachment number 2 Page 139 of 152 8 MIA 180,691,006v3 9-25-09 equitable principles in the event that equitable remedies are involved. (iv) The City has reserved $9,300,000 in its official "Annual Operating and Capital Improvement Budget" (2009/2010) prepared by the City's Office of Management and Budget, and has placed such funds in _______________________ account to be used only for the purposes expressly provided herein. The $9,300,000 reserve 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 reserve in its operating plans, budgets and __________________ account, 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 reserve 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 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. 10. Default Provisions. The following default provisions shall apply to any default by a party under this Agreement after the date of the Put 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) receive the Deposit together with all interest earned thereon, 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 amount shall accrue interest at the per annum rate of eighteen percent (18%) accruing from the date of such default. Attachment number 2 Page 140 of 152 9 MIA 180,691,006v3 9-25-09 (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, as its sole and exclusive remedy, to receive the return of the Deposit together with all interest earned thereon and all out of pocket expenses incurred by City with respect to this transaction, whereupon the parties shall be released from all further obligations under this Agreement, except the obligations which by their express terms survive a termination. 11. 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. 12. 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. 13. Escrow Agent. The Escrow Agent shall not be liable for any actions taken in good faith, but only for its gross or willful negligence. The parties hereby indemnify and hold the Escrow Agent harmless from and against any loss, liability, claim or damage whatsoever (including reasonable attorney’s fees and court costs at trial and all appellate levels) the Escrow Agent may incur or be exposed to in its capacity as escrow agent hereunder except for gross negligence or willful misconduct. If there be any dispute as to disposition of any proceeds held by the Escrow Agent pursuant to the terms of this Agreement, the Escrow Agent is hereby authorized to interplead said amount or the entire proceeds with any court of competent jurisdiction and thereby be released from all obligations hereunder. The Escrow Agent shall not be liable for any failure of the depository. 14. 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: Attachment number 2 Page 141 of 152 10 MIA 180,691,006v3 9-25-09 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: Mercantil Commercebank 220 Alhambra Circle, 9th Floor Coral Gables, FL 33134 Attn: Mr. Blas Betancourt EVP Commercial Division Manager Fax No. (305) 460-4010 With a copy to: Mercantil Commercebank 220 Alhambra Circle, 9th Floor Coral Gables, FL 33134 Attn: Nathan Kutt, Esq. EVP Commercial Division Manager Fax No. (305) 441-5608 If to the Escrow Agent: ___________________ ___________________ ___________________ ___________________ 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. 15. Risk of Loss. If, between the date of the Put Notice and Closing, the Parking Unit or any portion thereof is damaged or destroyed by fire or other casualty or taken by eminent domain, Seller shall 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 Attachment number 2 Page 142 of 152 11 MIA 180,691,006v3 9-25-09 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. 16. 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 guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department. 17. 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. Attachment number 2 Page 143 of 152 12 MIA 180,691,006v3 9-25-09 (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. (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)] Attachment number 2 Page 144 of 152 13 MIA 180,691,006v3 9-25-09 EXECUTED as of the date first above written. WITNESSES: LENDER: MERCANTIL COMMERCEBANK, N.A., a national banking association ______________________________ By: _____________________________ Print Name: Name: Title ______________________________ Print Name: CITY: Attest: By: Cynthia Goudeau, City Clerk THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: Frank V. Hibbard, Mayor Approved as to form: _____________________________ Pamela K. Akin City Attorney Attachment number 2 Page 145 of 152 MIA 180,691,006v3 9-25-09 EXHIBIT A Legal Description of Property Attachment number 2 Page 146 of 152 MIA 180,691,006v3 9-25-09 EXHIBIT A-1 Delineation of Parking Unit Attachment number 2 Page 147 of 152 MIA 180,691,006v3 9-25-09 EXHIBIT B Existing Title Exceptions [to be inserted from LOM's title search/policy] Attachment number 2 Page 148 of 152 MIA 180,691,006v3 9-25-09 EXHIBIT C 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 MERCANTIL COMMERCEBANK, N.A., a national banking association, whose mailing address is 220 Alhambra Circle, 9th Floor, Coral Gables, Florida 33134, Attn: General Counsel ("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. W I T N E S S E T H: 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 "Property"), 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. Attachment number 2 Page 149 of 152 MIA 180,691,006v3 9-25-09 THIS CONVEYANCE is subject to: (a) taxes and assessments for the year 20__ and all subsequent years; (b) 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; (c) conditions, restrictions, limitations and easements of record, if any, but this reference shall not operate to reimpose same; and (d) [describe Parking Covenant]. 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: MERCANTIL COMMERCEBANK, N.A., a national banking association By: Print Name: Name: Title: Print Name: STATE OF _______________ ) )ss: COUNTY OF _____________ ) The foregoing instrument was acknowledged before me this ___ day of _____________, 20__ by ______________________, as _____________________ of MERCANTIL COMMERCEBANK, N.A., a national banking association, on behalf of the bank. He is personally known to me or has produced as identification. Name: Notary Public, State of Florida My commission expires: Commission No. [Notarial Seal] Attachment number 2 Page 150 of 152 MIA 180,691,006v3 9-25-09 Attachment number 2 Page 151 of 152 1 v6 MIA 180692234 EXHIBIT M FORM OF MEMORANDUM OF AGREEMENT FOR DEVELOPMENT OF PROPERTY Attachment number 2 Page 152 of 152 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 1 of 32 Attachment number 3 Page 1 of 3 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 2 of 32 Attachment number 3 Page 2 of 3 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 3 of 32 Attachment number 3 Page 3 of 3 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 4 of 32 Attachment number 4 Page 1 of 3 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 5 of 32 Attachment number 4 Page 2 of 3 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 6 of 32 Attachment number 4 Page 3 of 3 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 7 of 32 Attachment number 5 Page 1 of 5 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 8 of 32 Attachment number 5 Page 2 of 5 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 9 of 32 Attachment number 5 Page 3 of 5 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 10 of 32 Attachment number 5 Page 4 of 5 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 11 of 32 Attachment number 5 Page 5 of 5 4'-2" 4'-2"5'-2" 4'-2" 5'-2" 5'-2" 7'-6" 15'-6" 4'-2"4'-2"7'-6" 2' - 1 0 1 / 2 " 5' - 7 5 / 8 " 3' - 1 " 4'-7" 4'-7" 4'-7"7'-6" 7'-6" 5' - 0 " 7'-0" 35'-0" 5' - 0 " 14'-2" 96'-10"47'-2"95'-10" 83 ' - 5 " 27 ' - 1 0 " 59 ' - 1 1 " 1'-9 3/8"84'-10"32'-10 1/2"10'-10"99'-0 1/2"1'-5" 97 ' - 0 " 3' - 9 7 / 8 " 31 ' - 8 " 36 ' - 1 1 / 4 " 4' - 4 7 / 8 " 1'-0 1/2"4'-0" 5' - 0 " 5' - 0 " 4'-8" N.T.S. CITY INDEX NO. 118; 1 OF 2 TYPICAL SINGLE HANDICAPPED STALL TYPICAL DOUBLE HANDICAPPED STALL CITY INDEX NO. 118; 2 OF 2 N.T.S. TYPICAL HANDICAPPED SIGN DETAIL CITY INDEX NO. 119; 1 OF 1 N.T.S. 8'-0"16'-0"032'-0" SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R A100 SI T E P L A N DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 12 of 32 Attachment number 6 Page 1 of 10 5' - 6 " 20 ' - 1 0 " 17 ' - 1 " 8' - 0 " 16 8 ' - 8 " 10 " 10 " 33 ' - 0 " 61 ' - 0 " 61 ' - 0 " 12 ' - 0 " 241'-9" 48'-0" 10" 12'-0 1/2" 10" 36'-0"48'-0"48'-0"48'-0 1/2" 37'-0 1/16" 11 ' - 0 " 4' - 1 1 / 1 6 " 27 ' - 1 0 " 35'-6 9/16" 22'-4 1/4" 6' - 5 " 5' - 0 " 8'-0" 8' - 0 " 3'-3" 23'-1" 4' - 5 " 3' - 1 1 " 4'-6" 23'-1" 8' - 0 " 22'-9"22'-6" 8' - 4 " 16'-0" 96'-10"12'-1"35'-11" 90'-4 13/16" 5' - 0 " 10'-10" 84'-10"14'-2"21'-10"11'-0 1/2" E B C D 3 4 71256 4'-7" 6'-1" 4'-2" 4'-2" 4'-2" 4'-2" 4'-7" 7'-6" 7'-6" 7'-6" 4'-8"6'-1"7'-6" 7'-6" A 5'-2" 21 ' - 6 " 12 ' - 6 " 5' - 1 0 " 5' - 0 " 6' - 0 " 4'-7" 5'-6" 5'-6" 4'-8" 4'-2" 11 ' - 0 " 5' - 0 " 3' - 0 " SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R A101 GR O U N D L E V E L F L O O R P L A N A402 1 A402 2 A401 1 A401 2 A501 1 A501 2 A502 1 A502 2 PRECAST CONCRETE WALL WITH 2 1 2", SIZED BY SLAT WALL MANUFACTURED METAL FURRING STUDS @ 24" O.C. PROVIDE MIN. R-11 INSULATION. WILL HAVE "SLAT WALL" DISPLAY SYSTEM ATTACHED FROM FF TO 16' AFF. DRYWALL ABOVE 16' TO UNDERSIDE OF PRECAST DECK SAME AS W/OUT SLAT WALL PRECAST ONLY 6" SIZED BY SLAT WALL MANUFACTURED METAL STUDS @ 24" O.C. W/(1) LAYER OF 5 8" TYPE "X" GWB EACH SIDE WILL HAVE "SLAT WALL" DISPLAY SYSTEM ATTACHED FROM FF TO 16'(FT) AFF. ON RETAIL SIDE ONLY SAME AS WITHOUT "SLAT WALL" DISPLAY SYSTEM SAME AS BUT W/ 6" 20 GA STUDS 3 5 8", 20 GA METAL STUDS @ 24" O.C. W/(1) LAYER OF 5 8" TYPE "X" GWB EACH SIDE. 8" CMU SEE STRUCTURALS WALL/ PARTITIONS TYPES A B B1 C B D A1 A B2 B A2 NOTES 1- SPRY-ON INSULATION AT CEILING IN RETAIL, RESTAURANT AND KITCHEN AREAS DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 13 of 32 Attachment number 6 Page 2 of 10 20'-11" 16 8 ' - 8 " E B 10 " 10 " 33 ' - 0 " 61 ' - 0 " C D 61 ' - 0 " 12 ' - 0 " 241'-9" 3 4 7 48'-0" 10" 12'-0 1/2" 10" 1 2 36'-0"48'-0" 5 6 48'-0"48'-0 1/2" 20'-11" 84'-10"14'-2"21'-10"11'-0 1/2"10'-10"99'-0 1/2" 96'-10"12'-1"35'-11 1/2" 5' - 0 " 5' - 0 " 15'-10" 5' - 0 " 5' - 0 " 27 ' - 1 0 " SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R A101A ME Z Z A N I N E L E V E L F L O O R P L A N A402 1 A402 2 A401 1 A401 2 A501 1 A501 2 A502 1 A502 2 PRECAST CONCRETE WALL WITH 2 1 2", SIZED BY SLAT WALL MANUFACTURED METAL FURRING STUDS @ 24" O.C. PROVIDE MIN. R-11 INSULATION. WILL HAVE "SLAT WALL" DISPLAY SYSTEM ATTACHED FROM FF TO 16' AFF. DRYWALL ABOVE 16' TO UNDERSIDE OF PRECAST DECK SAME AS W/OUT SLAT WALL PRECAST ONLY 6" SIZED BY SLAT WALL MANUFACTURED METAL STUDS @ 24" O.C. W/(1) LAYER OF 5 8" TYPE "X" GWB EACH SIDE WILL HAVE "SLAT WALL" DISPLAY SYSTEM ATTACHED FROM FF TO 16'(FT) AFF. ON RETAIL SIDE ONLY SAME AS WITHOUT "SLAT WALL" DISPLAY SYSTEM SAME AS BUT W/ 6" 20 GA STUDS 3 5 8", 20 GA METAL STUDS @ 24" O.C. W/(1) LAYER OF 5 8" TYPE "X" GWB EACH SIDE. 8" CMU SEE STRUCTURALS WALL/ PARTITIONS TYPES NOTES 1- SPRY-ON INSULATION AT CEILING IN RETAIL, RESTAURANT AND KITCHEN AREAS A2 BB2 AA1 D B C B1 B A DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 14 of 32 Attachment number 6 Page 3 of 10 16 8 ' - 8 " E B 10 " 10 " 33 ' - 0 " 61 ' - 0 " C D 61 ' - 0 " 12 ' - 0 " 241'-9" 3 4 7 48'-0" 10" 12'-0 1/2" 10" 1 2 36'-0"48'-0" 5 6 48'-0"48'-0 1/2" 28'-0" 28'-0" 34'-11" 27'-0"15'-6" 28'-6" 90'-0" [10 SPACES @ 9'-0"] 8'-6 7/16"27'-0" [3 SPACES @ 9'-0"] 99'-0" [11 SPACES @ 9'-0"] 10'-0" 3'-0" 10'-0" 10 ' - 0 " 3' - 0 " 9' - 1 1 3 / 4 " 3' - 0 " 12 ' - 7 1 / 4 " 24 ' - 8 " 81'-0" [9 SPACES @ 9'-0"] 27'-0" [3 SPACES @ 9'-0"] 32'-10 1/2" 18 ' - 0 " 18 ' - 0 " 24 ' - 0 " (D R I V E W A Y ) 18 ' - 0 " 18 ' - 0 " 24 ' - 0 " (D R I V E W A Y ) 81'-0" [9 SPACES @ 9'-0"] 126'-0" [14 SPACES @ 9'-0"] 3' - 0 " 9' - 0 " 12 ' - 0 " 5' - 8 " 12 ' - 0 " 2' - 8 " 12 ' - 0 " 5' - 8 " 12 ' - 0 " 12'-0"12'-0" 9'-0" 24'-0" (DRIVEWAY) R39'- 2 " 5' - 0 " 5' - 0 " 5' - 0 " 12'-0" 99'-0 1/2" 10 ' - 8 1 / 2 " 96'-10"12'-1"35'-11 1/16" 84'-10"14'-2"21'-10"11'-0 1/2"10'-10"99'-0 1/2" 5' - 0 " 83 ' - 5 " 27 ' - 1 0 " 59 ' - 1 1 " 5'-10" 85'-1 1/2"24'-10"24'-0" 97 ' - 0 " 31 ' - 8 " 180 FORD EXPEDITION EL SUV [in] Copyright (c) 2006, Transoft Solutions MA X . S T E E R I N G A N G L E = 3 2 . 4 d e g . 24 3 . 9 i n 296.5 i n 275 . 7 i n 1 6 6 . 4 i n 39.2 in 131.0 in 51.0 in 79 . 0 i n 28'-6" 9' - 0 " 5'-0" -8" 5' - 0 " RESTAURANT CUSTOMERS PARKING RESTAURANT CUSTOMERS PARKING EMPLOYEES PARKING EMPLOYEES PARKING SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R A102 SE C O N D L E V E L F L O O R P L A N A402 1 A402 2 A401 1 A401 2 A501 1 A501 2 A502 1 A502 2 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 15 of 32 Attachment number 6 Page 4 of 10 13 4 ' - 1 0 " 10 " 61 ' - 0 " 61 ' - 0 " 12 ' - 0 " 241'-9" 48'-0" 10" 12'-0 1/2" 10" 36'-0"48'-0"48'-0"48'-0 1/2" 9' - 0 " 12'-0"95'-9 1/2"85'-1 1/2" 99'-0"21'-10"11'-0 1/2"10'-10"99'-0 1/2" 47 ' - 1 1 " 27 ' - 1 0 " 47 ' - 1 1 " 5'-10" E B 7 C D 3 412 5 6 39'-8" 38'-6" 38'-6" 81'-0" [9 SPACES @ 9'-0"] 117'-0" [13 SPACES @ 9'-0"] 18 ' - 0 " 18 ' - 0 " 24 ' - 0 " (D R I V E W A Y ) 27 ' - 0 " [3 S P A C E S @ 9 ' - 0 " ] 27 ' - 0 " [3 S P A C E S @ 9 ' - 0 " ] 6' - 0 " 20 ' - 0 " 6' - 0 " 10'-0" 6'-1"117'-0" [13 SPACES @ 9'-0"] 33'-0 1/2" 3' - 0 " 9' - 0 " 12 ' - 0 " 5' - 8 " 12 ' - 0 " 2' - 8 " 12 ' - 0 " 5' - 8 " 12 ' - 0 " 18 ' - 0 " 18 ' - 0 " 24 ' - 0 " (D R I V E W A Y ) 2' - 0 " 3' - 4 " 18'-0" 6'-0 1/2" 24'-0" (DRIVEWAY) 144'-0" [16 SPACES @ 9'-0"] 171'-0" [19 SPACES @ 9'-0"] 9'-0" 24'-0" (DRIVEWAY) 5' - 0 " 5' - 0 " 5' - 0 " 9'-0" 97 ' - 0 " 31 ' - 8 " 18 0 1 5 0 12 0 90 OUTSIDE SWEPT PATH PATH OF FRONT WHEEL INSIDE SWEPT PATH 60 30 FORD EXPEDITION EL SUV [in] Copyright (c) 2006, Transoft Solutions MAX. STEERING ANGLE = 32.4 deg. 243.9 in 2 9 6 . 5 i n 27 5 . 7 i n 166.4 i n 39.2 in 131.0 in 51.0 in 79.0 in 24'-10"24'-0" 5'-0" SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R A103 TH I R D L E V E L F L O O R P L A N A402 1 A402 2 A401 2 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 16 of 32 Attachment number 6 Page 5 of 10 81'-0" [9 SPACES @ 9'-0"] 117'-0" [13 SPACES @ 9'-0"] 18 ' - 0 " 18 ' - 0 " 24 ' - 0 " (D R I V E W A Y ) 27 ' - 0 " [3 S P A C E S @ 9 ' - 0 " ] 27 ' - 0 " [3 S P A C E S @ 9 ' - 0 " ] 6' - 0 " 20 ' - 0 " 6' - 0 " 10'-0" 6'-1"117'-0" [13 SPACES @ 9'-0"] 33'-0 1/2" 5' - 1 0 " 18 ' - 0 " 18 ' - 0 " 24 ' - 0 " (D R I V E W A Y ) 2' - 0 " 18'-0" 6'-0 1/2" 24'-0" (DRIVEWAY) 144'-0" [16 SPACES @ 9'-0"] 171'-0" [19 SPACES @ 9'-0"] 9'-0" 36 ' - 0 " [4 S P A C E S @ 9 ' - 0 " ] 27 ' - 0 " [3 S P A C E S @ 9 ' - 0 " ] 2' - 4 " 6' - 2 " 24'-0" (DRIVEWAY) 5' - 0 " 5' - 0 " 5' - 0 " 12'-0"95'-10 1/2"85'-0 1/2" 47 ' - 1 1 " 27 ' - 1 0 " 47 ' - 1 1 " 5'-10" 97 ' - 0 " 31 ' - 8 " 24'-10"24'-0" 13 4 ' - 1 0 " 10 " 61 ' - 0 " 61 ' - 0 " 12 ' - 0 " 241'-9" 48'-0" 10" 12'-0 1/2" 10" 36'-0"48'-0"48'-0"48'-0 1/2" 99'-0"21'-10"11'-0 1/2"10'-10"99'-0 1/2" E B 7 C D 3 412 5 6 9' - 0 " 5'-0" SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R A104 FO U R T H L E V E L F L O O R P L A N A402 1 A402 2 A401 1 A401 2 A501 1 A501 2 A502 1 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 17 of 32 Attachment number 6 Page 6 of 10 13 4 ' - 1 0 " E B 10 " 61 ' - 0 " C D 61 ' - 0 " 12 ' - 0 " 241'-9" 3 4 7 48'-0" 10" 12'-0 1/2" 10" 1 2 36'-0"48'-0" 5 6 48'-0"48'-0 1/2" 81'-0" [9 SPACES @ 9'-0"] 117'-0" [13 SPACES @ 9'-0"] 18 ' - 0 " 18 ' - 0 " 24 ' - 0 " (D R I V E W A Y ) 27 ' - 0 " [3 S P A C E S @ 9 ' - 0 " ] 27 ' - 0 " [3 S P A C E S @ 9 ' - 0 " ] 6' - 0 " 20 ' - 0 " 6' - 0 " 10'-0" 6'-1" 117'-0" [13 SPACES @ 9'-0"] 33'-0 1/2" 2' - 8 " 18 ' - 0 " 18 ' - 0 " 24 ' - 0 " (D R I V E W A Y ) 2' - 0 " 18'-0" 6'-0 1/2" 24'-0" (DRIVEWAY) 144'-0" [16 SPACES @ 9'-0"] 171'-0" [19 SPACES @ 9'-0"] 9'-0" 72 ' - 0 " [8 S P A C E S @ 9 ' - 0 " ] 2' - 8 " 24'-0" (DRIVEWAY) 5' - 0 " 5' - 0 " 5' - 0 " 99'-0"21'-10"11'-0 1/2"10'-10"99'-0 1/2" 12'-0"95'-9 1/2"85'-1 1/2" 47 ' - 1 1 " 27 ' - 1 0 " 47 ' - 1 1 " 5'-10" 97 ' - 0 " 31 ' - 8 " 24'-10"24'-0" 9' - 0 " 5'-0" SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R A105 FI F T H L E V E L F L O O R P L A N A402 1 A402 2 A401 1 A401 2 A501 1 A501 2 A502 1 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 18 of 32 Attachment number 6 Page 7 of 10 13 4 ' - 1 0 " E B 10 " 61 ' - 0 " C D 61 ' - 0 " 12 ' - 0 " 241'-9" 3 4 7 36'-0" 10" 12'-0 1/2" 10" 1 2 48'-0"48'-0" 5 6 48'-0"48'-0 1/2" 81'-0" [9 SPACES @ 9'-0"] 90'-0" [10 SPACES @ 9'-0"] 18 ' - 0 " 18 ' - 0 " 24 ' - 0 " (D R I V E W A Y ) 27 ' - 0 " [3 S P A C E S @ 9 ' - 0 " ] 18 ' - 0 " [2 S P A C E S @ 9 ' - 0 " ] 6' - 0 " 20 ' - 0 " 6' - 0 " 10'-0" 5'-8" 18'-0" 6'-0 1/2" 24'-0" (DRIVEWAY) 14 ' - 4 " 9' - 0 " 10'-0"24'-0"10'-0" 45 ' - 0 " [5 S P A C E S @ 9 ' - 0 " ] 27'-0" [3 SPACES @ 9'-0"] 5' - 0 " 5' - 0 " 5' - 0 " 99'-0"21'-10"11'-0 1/2"10'-10"99'-0 1/2" 12'-0"95'-9 1/2"85'-1 1/2" 47 ' - 1 1 " 27 ' - 1 0 " 47 ' - 1 1 " 5'-10" 97 ' - 0 " 31 ' - 8 " 24'-10"24'-0" 1' - 2 " 1' - 2 " SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R A106 SI X T H L E V E L F L O O R P L A N A402 1 A402 2 A401 1 A401 2 A501 1 A501 2 A502 1 DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 19 of 32 Attachment number 6 Page 8 of 10 SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R 1 3/32 WEST ELEVATION 2 3/32 NORTH ELEVATION A401 OV E R A L L B U I L D I N G E L E V A T I O N S SCALE: 3/32" = 1'-0" 5'-4"10'-8"021'-4" DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 20 of 32 Attachment number 6 Page 9 of 10 SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R 1 3/32 SOUTH ELEVATION 2 3/32 EAST ELEVATION A402 OV E R A L L B U I L D I N G E L E V A T I O N S SCALE: 3/32" = 1'-0" 5'-4"10'-8"021'-4" DVA 2009-00004 Exhibit B Conceptual Plans for Project Page 21 of 32 Attachment number 6 Page 10 of 10 J: \ 2 0 0 9 \ 0 9 0 6 S u r f S t y l e - B r i t t s M i x e d U s e \ D e s i g n \ S c h e m a t i c F i l e s \ 2 0 0 9 - 1 0 - 1 3 \ C O V E R S . d w g D e c 0 3 , 2 0 0 9 1 1 : 4 4 a m U p d a t e d b y : j l e o s VICINITY MAP Structural Engineer P.O. Box 607754 Orlando, FL 32860-7754 Tel: 407-293-4000 Fax: 407-297-0512 Finfrock Design, Inc. Architect Coastal Systems International, Inc. WAVE DISSIPATING WALL 464 South Dixie Hwy, Coral Gables, Florida 33146 Tel: 305.661.3655 Fax: 305.661.1914 Owner Civil SITE 4100 N 28th Terrace Hollywood, Fl. 33020 Tel. Fax: L O M, Inc. Keith Zayac & Associates, Inc. P.O. Box 1156 Safety Harbor, Fl. 34695 Tel: (727) 793-9888 Fax: (727) 793-9855 E-MAIL: Alex@keithzayac.com CLEARWATER BEACH, FLORIDA DVA2009-00004 Exhbit B Conceptual Plans for Project Page 22 of 32 Attachment number 7 Page 1 of 6 2" 2" 1/2" 5/8" 2'-1" 4" 3/ 4 " 2" 1/ 2 " 1'-10" 2'-5" R1 / 2 " R 2 " PRECAST WHITE CEMENT CAP W/ LIGHT SANDBLAST FINISH REINF. CONC. WALL W/ MEDIUM SANDBLAST FINISH (NO VISIBLE FORM JOINTS) FIN GRADE 3 8" MORTAR SETTING BED AT TOP R 1 / 2 " 3' - 0 " 2" 2" 3" SEE STRUCTURAL DWGS FOR REINFORCING VINYL SHEET PILE (SEE STRUCTURAL DWGS FOR LOCATION) 2'-9" 4" 1'-3" 2'-4" 1' - 1 0 " 2' - 5 " R2 ' - 1 1 1 / 1 6 " 5 " 1' - 1 1 " 1' - 0 " EXP. JOINT OUTLINE OF ACCENT PIER CAP ABOVE 12" DIA. STARFISH. 2" HT. CAST AS PART OF CAP. OPEN CAVITY IN CAP TO LESSEN WEIGHT 3 8" MORTAR SETTING BED 1" SQ TILES GROUT IN PLACE FLUSH W/FACE OF CONC. PIER REINF. C.I.P. CONCRETE PIER W/ 8 #4 VERT. & #4 TIES @ 12" O.C. (NO VISIBLE FORM JOINTS) 1' - 5 " 3' - 6 " NOTE: WHERE PIER IS ADJACENT TO BEACHWALK, ELEVATION AT BEACHWALK VARIES, SEE CIVIL PLANS CLCL 1'-0" 1' - 0 " MA X . MAX. LEGEND 1. CONCRETE PAVING 2. 1/4" TOOLED RADIUS EDGE 3. PREMOLDED EXPANSION JOINT SEALER PER SPECIFICATIONS. 4. MASTIC SEALANT, COLOR TO MATCH ADJACENT PAVING. 5. 3/4" DIA. X 24" LONG SMOOTH STEEL SLIP DOWEL, CENTER IN CONCRETE. 6. FACE OF WALL 7. VERTICAL EXPANSION JOINT AT 20' O.C. MAX., ALIGN WITH ADJACENT HORIZONTAL EXPANSION JOINTS WHERE POSSIBLE. 8. CURB OR WALL FACE WHERE EDGE CONDITION EXISTS 9. TOOLED JOINT WITHOUT RADIUS EDGE TO BE STRIKED IN IRREGULAR LINE PRIOR TO STAMP AND SKIN APPLICATIONS. NOTE: 1) ALL SCORING JOINTS SHALL BE CREATED W/PRECISENESS TO ENSURE CLEAN, STRAIGHT OR CURVED JOINTS AS SHOW IN PLANS. SCORE LINES WILL BE SUBJECT TO APPROVAL BY OWNER'S REP. 2) LEGEND ITEM (4); ON PROMENADE, RE:C/HD-10 COLOR TO MATCH PAVING TYPE P103. OTHER INSTANCES WHERE COLOR CHOICE IS NOT CLEAR, CONTRACTOR SHALL REQUEST CLARIFICATION. 1/4"1 1 / 2 " 1/4" . . 2 1 DE E P 2 6 3 5 7 2 1 2 1 1 3 9 534 4 8 APPROX. 1/3 DEPTH OF SLAB THICKNESS 3 2 1 4 3/8" WIDTH TO DEPTH RATIO OF MASTIC TO BE PER MFG'S RECOMMENDATIONS A. CONTROL JOINT @ 20' O.C. MAX. B. EXPANSION JOINT (NON-VEHICULAR CONCRETE) C. DOWELED EXPANSION JOINT @ 100' O.C. MAX. (VEHICULAR CONCRETE) D. VERTICAL EXPANSION JOINT IN WALL PLAN VIEW @ 40' O.C. MAX. E. WEAKENED PLANE JOINT ENLARGEMENT OF TYPICAL JOINT TOP OF WALL THE HIGHER OF 18" ABOVE BEACHWALK OR EL+ 7.5 2'-4" 5" 2'-9" 2'-9" R1'-4 1/2 " R1' - 2 " 2" 2" 4" 1 3/8"1 1/8" 2" 12" DIA. STARFISH. 2" HT. CAST AS PART OF CAP. 1" SQ TILES GROUT IN PLACE FLUSH W/FACE OF CONC. PIER PRECAST WHITE CEMENT CAP W/ LIGHT SANDBLAST FINISH BED TILE, TYPE B, THREE ROWS TILE, TYPE A, ONE ROW 1" MASTIC SEALANT JOINT P102 INTEGRAL COLOR CONCRETE SPONGE FLOAT FINISH WITH SMALL GLASS BEADS C-18 COACHELLA SAND L.W. SCOFIELD (727) 515-1849, OF APPROVED EQUAL HAND SPREAD FOR RANDOM DISTRIBUTION EXPOSED BY ACID WASH TYPE DESCRIPTION FINISH COLOR MANUFACTURER NOTES P103 INTEGRAL COLOR CONCRETE SPONGE FLOAT FINISH WITH SMALL GLASS BEADS C-26 ANTIQUE CORK L.W. SCOFIELD (727) 515-1849, OF APPROVED EQUAL HAND SPREAD FOR RANDOM DISTRIBUTION EXPOSED BY ACID WASH P103B INTEGRAL COLOR CONCRETE WESTERN SHELL AGGREGATE FLOATED IN AND C-26 ANTIQUE CORK L.W. SCOFIELD (727) 515-1849, OF APPROVED EQUAL SHELL AGGREGATE TO BE FLOATED IN A MAX. OF 3" BEYOND LIMITS OF MEDIUM SANDBLAST TO EXPOSE AGGREGATE P104 INTEGRAL COLOR CONCRETE SPANGLE FLOATED FINISH WITH SILICA CARSIDE TOP C-22 CORAL RED L.W. SCOFIELD (727) 515-1849, OF APPROVED EQUAL HAND SPREAD FOR RANDOM DISTRIBUTION EXPOSED BY ACID WASH SEED SANDBLAST IN ORDER TO MINIMIZE QUANTITY OF SHELL AGGREGATE USE SMALL GLASS BEADS TILE TYPE A 1" X 1" HIGH FIRED PORCELAIN MATTE FINISH NORTH COAST MCINTYRE TILE CO. OR APPROVED EQUAL REP: RE: B & E /HD-7 FOR FURTHER INFORMATION COLORED GLAZED EQUIVALENT SPECIALTY TILE PRODUCTS, INC. (407)647.9388 TILE TYPE B 1" X 1" HIGH FIRED PORCELAIN MATTE FINISH ART & CRAFTS MCINTYRE TILE CO. OR APPROVED EQUAL REP: RE: B & E /HD-7 FOR FURTHER INFORMATION COLORED GLAZED EQUIVALENT CARIBBEAN SPECIALTY TILE PRODUCTS, INC. (407)647.9388 USE SMALL GLASS BEADS USE SMALL GLASS BEADS USE SMALL GLASS BEADS 8" PRECAST WHITE CEMENT KEYSTONE W/ LIGHT SANDBLAST FINISH (4" THICK) R 2 " NOTE: ALL WALL, CAP, KEYSTONE, TILE ACCENTS AND CONCRETE PAVING, FINISHES AND COLORS TO MATCH BEACH WALK SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R 3& 6 A1 1 0 PIER SECTION WALL SECTION MATERIAL AND FURNISHINGS SCHEDULE PIER ELEVATION JOINT DETAILS WAVE DISSIPATING WALL PLAN A110 WA V E D I S S I P A T I N G W A L L WALL SECTION AT KEYSTONE DVA2009-00004 Exhbit B Conceptual Plans for Project Page 23 of 32 Attachment number 7 Page 2 of 6 DVA2009-00004 Exhbit B Conceptual Plans for Project Page 24 of 32 Attachment number 7 Page 3 of 6 DVA2009-00004 Exhbit B Conceptual Plans for Project Page 25 of 32 Attachment number 7 Page 4 of 6 DVA2009-00004 Exhbit B Conceptual Plans for Project Page 26 of 32 Attachment number 7 Page 5 of 6 DVA2009-00004 Exhbit B Conceptual Plans for Project Page 27 of 32 Attachment number 7 Page 6 of 6 DVA2009-00004 Exhbit B Conceptual Plans for Project Page 28 of 32 Attachment number 8 Page 1 of 5 SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R S-1 WA V E D I S S I P A T I N G W A L L DVA2009-00004 Exhbit B Conceptual Plans for Project Page 29 of 32 Attachment number 8 Page 2 of 5 0510 SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R 0.051 S-2 WA V E D I S S I P A T I N G W A L L DVA2009-00004 Exhbit B Conceptual Plans for Project Page 30 of 32 Attachment number 8 Page 3 of 5 012 SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R S-3 WA V E D I S S I P A T I N G W A L L 00.51 DVA2009-00004 Exhbit B Conceptual Plans for Project Page 31 of 32 Attachment number 8 Page 4 of 5 SU R F S T Y L E / B R I T T S CI T Y O F C L E A R W A T E R S-4 WA V E D I S S I P A T I N G W A L L 00.51 DVA2009-00004 Exhbit B Conceptual Plans for Project Page 32 of 32 Attachment number 8 Page 5 of 5 Community Development Board – January 5, 2010 DVA2009-00004 – Page 1 of 4 CDB Meeting Date: January 5, 2010 Case Number: DVA2009-00004 (Related to FLD2009-09032) Agenda Item: C.1. Owner/Applicant: L.O.M., Inc. Representative: Alex Azan, PE, Keith Zayac & Associates, Inc. Addresses: 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive) CITY OF CLEARWATER PLANNING AND DEVELOPMENT DEPARTMENT STAFF REPORT GENERAL INFORMATION: REQUEST: Review of, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4-606. CURRENT ZONING: Tourist (T) District CURRENT FUTURE LAND USE CATEGORY: Resort Facilities High (RFH) BEACH BY DESIGN CHARACTER DISTRICT: Beach Walk PROPERTY USE: Current: Retail Sales and Services of 7,128 square feet of floor area and a Restaurant of 6,058 square feet of floor area Proposed: Retail Sales and Services of 34,183 square feet of floor area, a Restaurant of 6,887 square feet of floor area and a Parking Garage of 349 parking spaces (including 48 accessory parking spaces for the Retail Sales and Services and Restaurant uses and 301 public parking spaces) (0.94 Floor Area Ratio) at a height of 59.5 feet (to highest parking deck) EXISTING SURROUNDING ZONING AND USES: North: Tourist (T) District Mixed Use (overnight accommodations and attached dwellings) and Parking Garage South: Tourist (T) District Overnight accommodations East: Tourist (T) District Overnight accommodations and Retail sales and services West: Open Space/Recreation (OS/R) District Clearwater Beach Attachment number 9 Page 1 of 4 Community Development Board – January 5, 2010 DVA2009-00004 – Page 2 of 4 UPDATE Due to non-posting of public hearing notification signs on the subject property, this application was continued by the CDB at their December 15, 2009, meeting to a special meeting on January 5, 2010. The CDB at their December 15, 2009, meeting approved the companion Flexible Development application FLD2009-09032 with 15 conditions. ANALYSIS: Site Location and Existing Conditions: The 0.99 acres is located between S. Gulfview Boulevard and Coronado Drive approximately 200 feet south of Third Street. The main portion of the subject property (311 S. Gulfview Boulevard [including 305, 309 and 315 S. Gulfview Boulevard]) is currently developed with a retail sales use of 7,128 square feet of floor area (Surf Style) and a restaurant of 6,058 square feet of floor area (Britt’s). The other portion of the subject property (320 Coronado Drive) is developed with a detached dwelling. Development Proposal: The development proposal includes a companion Flexible Development application (FLD2009- 09032) to permit retail sales uses of 34,183 square feet of floor area, a restaurant of 6,887 square feet of floor area and a parking garage of 349 parking spaces (including 48 accessory parking spaces for the retail sales and restaurant uses and 301 public parking spaces). Development Agreement: The City has been desirous of constructing additional parking to meet the needs of visitors to the beach. City Council looked at various proposals/sites and decided to negotiate with this applicant for the construction of parking open to the public on the subject property. The proposed parking garage with 301 parking spaces open to the public will be constructed by the developer at their cost. Project financing will be secured by the Retail Unit and the Parking Unit by the developer, with such financing contingent upon the City entering into a Put Agreement. Under such Put Agreement, the project lender will have the option of five years from the date of completion of the project to require the City to purchase the Parking Unit for $9.3 million if the lender forecloses against the project should the developer default. The City must reserve the $9.3 million during the term of the Put Agreement. The proposed Development Agreement will be in effect for a period not to exceed five (5) years following the completion date of the project and includes the following main provisions: Provides for at least 301 parking spaces open to the public, with at least 250 of these spaces available on an hourly basis; Separates the project into a Retail Unit(s) (total of 38,249 square feet of retail/commercial floor area on the ground floor consisting of approximately 31,421 square feet of retail space [does not include the Beach Walk Thru Area], 6,828 square feet of restaurant space and 48 parking spaces on the second floor) and a Parking Unit (301 parking spaces); Attachment number 9 Page 2 of 4 Community Development Board – January 5, 2010 DVA2009-00004 – Page 3 of 4 Includes the formation of a three-unit condominium for the project (one unit for the retail portion, the 48 associated parking spaces and the delivery area, one for the restaurant portion and one for the Parking Unit); Includes provisions for the approval by FEMA of a Flood Zone map change from a VE- Zone to an AE-Zone to allow construction of the Retail Unit on the ground floor of the building through the construction of a wave dissipating wall within the S. Gulfview Boulevard right-of-way; Requires the developer commence construction of the project on or before June 30, 2010; Requires the City review (approval or denial) of the building permit within 30 days of submission of the permit; and Authorizes café seating within the S. Gulfview Boulevard right-of-way. The Community Development Board (CDB) has been provided with the most recent Development Agreement. The City Council may enter into Development Agreements to encourage a stronger commitment on comprehensive and capital facilities planning, to ensure the provision of adequate public facilities for development, to encourage the efficient use of resources, and to reduce the economic cost of development. The CDB is required to review the proposed Development Agreement and make a recommendation to the City Council. SUMMARY AND RECOMMENDATION: The Development Review Committee (DRC) reviewed the application and supporting materials at its meetings of October 1 and November 5, 2009, and deemed the development proposal to be legally sufficient to move forward to the CDB, based upon the following: Findings of Fact: The Planning and Development Department, having reviewed all evidence submitted by the applicant and requirements of the Community Development Code, finds that there is substantial competent evidence to support the following findings of fact: 1. That the 0.99 acres is located between S. Gulfview Boulevard and Coronado Drive approximately 200 feet south of Third Street; 2. That the property is located within the Tourist (T) District and the Resort Facilities High (RFH) Future Land Use Plan category; 3. That the development proposal is subject to the requirements of Beach by Design and the Design Guidelines contained therein as the property is located within the Beach Walk character district. Conclusions of Law: The Planning and Development Department, having made the above findings of fact, reaches the following conclusions of law: Attachment number 9 Page 3 of 4 Community Development Board – January 5, 2010 DVA2009-00004 – Page 4 of 4 1. That the Development Agreement implements and formalizes the requirements for the construction of on-site and off-site improvements under the related site plan proposal (FLD2009-09032); 2. That the Development Agreement complies with the standards and criteria of Section 4-606 of the Community Development Code; 3. That the Development Agreement is consistent with and furthers the Visions, Goals, Objectives and Policies of the Comprehensive Plan; and 4. That the Development Agreement is consistent with the Visions, Goals, Objectives and Policies of Beach by Design and the Beach Walk character district. Based upon the above, the Planning and Development Department recommends the APPROVAL, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4-606, for the property at 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive). Prepared by Planning and Development Department Staff: __________________________________________ Wayne M. Wells, AICP, Planner III ATTACHMENTS: Development Agreement with Exhibits Location Map Aerial Map Future Land Use Map Zoning Map S:\Planning Department\C D B\FLEX (FLD)\Pending cases\Up for the next CDB\DVA2009-00004 - Gulfview S 0311 (T) 2009.xx - 1.5.10 CDB + 1.14.10 CC - WW\Gulfview S 0311 DVA Staff Report for 1.5.10 CDB.doc Attachment number 9 Page 4 of 4 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Continue second reading of Ordinance 8145-10 regarding VAC2009-07 LOM Inc. to March 4, 2010. SUMMARY: Review Approval:1) Clerk Cover Memo City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Declare the list of property surplus to the needs of the City, authorize donation to Pinellas Technical Education Center (PTEC) and authorize the appropriate officials to execute same. (consent) SUMMARY: The City of Clearwater Fire and Rescue Department was awarded a grant in the amount of $293,498.00 under the 2004 Assistance to Firefighters Grant Program. The grant required the City to provide 30% matching funds, for a total of $418,925. Of this amount, the City used $43,744.93 of grant and City funds to purchase candidate physical ability test equipment and related supplies. The Fire Department used the equipment and supplies to test candidates for City firefighter positions, but is unable to continue to provide the testing as envisioned by the grant. Pinellas Technical Education Center (PTEC) has been designated county wide testing responsibility by the Department of Homeland Security, the original grantor. Terms of the original grant require the City to transfer the equipment to their approved recipient. The granting agency has approved this donation. The Clearwater Fire and Rescue Department and other Pinellas County fire departments will use the equipment for future testing needs. Equipment and supplies recommended for donation have an original value of $43,744.93 and a book value (after depreciation) of $18,959.69. The book value of the City's investment is $5,687.91 (30% of the book value). The equipment is designed for testing firefighter rescue candidates only. Type:Other Current Year Budget?:None Budget Adjustment:None Budget Adjustment Comments: None Current Year Cost:N/A Annual Operating Cost: Not to Exceed:Total Cost: For Fiscal Year: to Appropriation Code Amount Appropriation Comment N/A Bid Required?:No Bid Number: Other Bid / Contract:Bid Exceptions:None Review Approval: 1) Financial Services 2) Office of Management and Budget 3) Legal 4) Clerk 5) Assistant City Manager 6) Clerk 7) City Manager 8) Clerk Cover Memo Ca p i t a l I t e m s (b e i n g t r a n s f e r r e d ) As s e t # Qt y . Pu r c h a s e Am o u n t Cr a t i n g S h i p p i n g Or i g i n a l T o t a l Va l u e Re s i d u a l B o o k Va l u e N o t e s Ce i l i n g B r e a c h a n d P u l l M a c h i n e 27 6 7 9 1 $4 , 3 4 5 . 0 0 $4 0 0 . 0 0 $1 , 3 5 0 . 0 0 $6 , 0 9 5 . 0 0 $4 , 2 6 7 . 0 0 Pr a c t i c e C e i l i n g B r e a c h a n d P u l l M a c h i n e 27 6 8 2 1 $3 , 7 8 0 . 0 0 $4 0 0 . 0 0 $1 , 3 5 0 . 0 0 $5 , 5 3 0 . 0 0 $3 , 8 7 1 . 0 0 Ma z e 27 6 8 3 1 $6 , 5 0 0 . 0 0 $4 0 0 . 0 0 $1 , 3 5 0 . 0 0 $8 , 2 5 0 . 0 0 $5 , 7 7 5 . 0 0 $1 4 , 6 2 5 . 0 0 $1 , 2 0 0 . 0 0 $4 , 0 5 0 . 0 0 $1 9 , 8 7 5 . 0 0 $1 3 , 9 1 3 . 0 0 No n - C a p i t a l I t e m s ( b e i n g t r a n s f e r r e d ) 16 5 l b . M a n n e q u i n 27 4 2 2 1 $1 , 0 0 0 . 0 0 $1 , 0 0 0 . 0 0 $0 . 0 0 wi l l n o t t r a n s f e r . O b s o l e t e . Fo r c i b l e E n t r y M a c h i n e 2 7 6 8 0 1 $ 4 , 5 3 8 . 0 0 $ 1 5 5 . 0 0 $ 4 , 6 9 3 . 0 0 $ 2, 8 3 8 . 5 0 or i g i n a l p u r c h a s e i n c l u d e d $ 6 3 8 . 0 0 C a l i b r a t i o n Un i t t h a t i s n o t b e i n g t r a n s f e r r e d ; mi s s i n g / b r o k e n Pr a c t i c e F o r c i b l e E n t r y M a c h i n e 27 6 8 1 1 $1 , 1 7 5 . 0 0 $1 5 5 . 0 0 $1 , 3 3 0 . 0 0 $4 8 4 . 4 0 Po r t a b l e S t a n d f o r F o r c i b l e E n t r y M a c h . 27 6 8 4 1 $1 , 1 3 5 . 0 0 $5 0 . 0 0 $2 4 5 . 0 0 $1 , 4 3 0 . 0 0 $5 5 4 . 4 0 24 ' A l u m i n u m E x t e n s i o n L a d d e r na 2 $1 , 1 7 0 . 0 0 $3 4 6 . 2 7 $1 , 5 1 6 . 2 7 $3 0 3 . 2 5 50 l b W e i g h t e d V e s t - S m a l l na 3 $7 8 0 . 0 0 $7 8 0 . 0 0 $1 5 6 . 0 0 50 l b W e i g h t e d V e s t - M e d i u m na 3 $7 8 0 . 0 0 $7 8 0 . 0 0 $1 5 6 . 0 0 50 l b W e i g h t e d V e s t - L a r g e na 3 $7 8 0 . 0 0 $7 8 0 . 0 0 $1 5 6 . 0 0 sh i p p i n g f o r v e s t s , s h o u l d e r w e i g h t s a n d Sh o u l d e r W e i g h t s na 2 $ 1 6 0 . 0 0 $ 3 9 3 . 2 4 $ 5 5 3 . 2 4 $ 1 1 0 . 6 5 sh i p p i n g f o r v e s t s , s h o u l d e r w e i g h t s a n d ma n n e q u i n Ha r d H a t w / C h i n S t r a p na 4 $3 0 0 . 0 0 $3 0 0 . 0 0 $6 0 . 0 0 Wo r k G l o v e s - S m a l l na 6 $1 0 . 5 0 $1 0 . 5 0 $2 . 1 0 Wo r k G l o v e s - M e d i u m na 6 $1 0 . 5 0 $1 0 . 5 0 $2 . 1 0 Wo r k G l o v e s - L a r g e na 12 $2 1 . 0 0 $2 1 . 0 0 $4 . 2 0 Wo r k G l o v e s - X L na 12 $2 3 . 4 0 $2 3 . 4 0 $4 . 6 8 Re t r a c t a b l e L a d d e r H a r n e s s na 1 $5 3 0 . 0 0 $5 3 0 . 0 0 $1 0 6 . 0 0 Ma n n e q u i n H a r n e s s na 1 $1 3 0 . 0 0 $1 3 0 . 0 0 $2 6 . 0 0 4 3 / 8 " C a r a b i n e r na 2 $5 7 . 0 0 $5 7 . 0 0 $1 1 . 4 0 10 l b S l e d g e h a m m e r na 1 $7 4 . 8 2 $7 4 . 8 2 $1 4 . 9 6 6' P i k e P o l e na 2 $ 1 9 5 . 2 0 $ 8 5 . 0 0 $ 2 8 0 . 2 0 $ 5 6 . 0 4 sh i p p i n g f o r h a r d h a t s , g l o v e s , h a r n e s s e s ca r a b i n e r s , s l e d g e h a m m e r a n d p i k e p o l e s $1 2 , 8 7 0 . 4 2 $3 6 0 . 0 0 $1 , 0 6 9 . 5 1 $1 4 , 2 9 9 . 9 3 $5 , 0 4 6 . 6 9 Se r v i c e s (n o t b e i n g t r a n s f e r r e d ) Tr a n s p o r t a b i l i t y S t u d y na 1 $6 , 3 5 0 . 0 0 $6 , 3 5 0 . 0 0 $0 . 0 0 Pr o c t o r T r a i n i n g ( p e r d a y ) na 1 $8 6 0 . 0 0 $8 6 0 . 0 0 $0 . 0 0 Co u r s e V a l i d a t i o n na 1 $8 6 0 . 0 0 $8 6 0 . 0 0 $0 . 0 0 Tr a v e l F e e s na 1 $1 , 5 0 0 . 0 0 $1 , 5 0 0 . 0 0 $0 . 0 0 $9 , 5 7 0 . 0 0 $0 . 0 0 $0 . 0 0 $9 , 5 7 0 . 0 0 $0 . 0 0 To t a l $4 3 , 7 4 4 . 9 3 $1 8 , 9 5 9 . 6 9 Ci t y S h a r e $1 3 , 1 2 3 . 4 8 $5 , 6 8 7 . 9 1 Attachment number 1 Page 1 of 1 From: Piatt, Kevin [mailto:Kevin.Piatt@dhs.gov] Sent: Wednesday, December 23, 2009 9:42 AM To: Weiss, Robert Subject: EMW-2004-FG-10601 Chief Weiss, your request to transfer CPAT equipment to the Pinellas County Technical Institute is granted. It has been determined the scope of work for your 2004 grant has been completed and the grant properly closed out. The program office agrees that many more departments will benefit from this equipment. Please make sure you complete your records by keeping proper documentation of the transfer of all AFG awarded items. A copy of this e-mail will be attached in your 2004 grant. Kevin B. Piatt Fire Programs Specialist U.S. Department of Homeland Security/FEMA Grant Programs Directorate Assistance to Firefighters Grant Program Branch 5066C Techworld, Bldg. 500 C St SW Room Washington, DC 20472 (202) 786-9822 Voice (202) 786-9938 Fax Kevin.Piatt@dhs.gov DISCLAIMER This communication, along with any attachments, is covered by Federal and state law governing electronic communications and may contain confidential and legally privileged information. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, use or copying of this message is strictly prohibited. If you have received this in error, please reply immediately to the sender and delete this message. Thank you. Sender Name: Robert Weiss Sender Userid: clearwater-florida Sender Email: robert.weiss@myclearwater.com Reference: EMW-2003-FG-06046, EMW-2003-FP-01039, EMW-2004-FG-10601, EMW-2004-FP-00120, EMW-2005-FG-08530, EMW-2005-FP-01103, EMW-2009-FC-01949R Message type: General Sender's email message is as follows : This grant provided for equipment and training for the Candidate Physical Abilities Teating CPAT. Our department wanted to develop the CPAT process for our department and provide the testing to the other 19 fire departments in our county. Requirements by CPAT will not allow us to administer the test to other departments. However a technical school in the county will be able to become a regional provider making the testing available not only to our county but also all department in central Florida. We are requesting authority to transfer ownership of the CPAT equipment to the Pinellas County Technical Institute so that they can administer the testing. Will we be able to do this? Attachment number 2 Page 1 of 1 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Approve First Amendment to Lease Agreement between Clearwater Golf Associates Inc. (Club), and the City of Clearwater (City) increasing the length of the Agreement from 20 years to 27 years, extending the 50% rent relief for seven (7) years,setting a schedule to complete additional improvements to the course by the Club and authorize the appropriate officials to execute same. (consent) SUMMARY: On December 19, 2001, the Council approved a 20-year Agreement between Clearwater Golf Associates, Inc. and the City for the operation of the property known as Clearwater Executive Golf Course, including an annual lease payment, and improvements to the course. Staff has found the Club’s performance to be excellent including adhering to all provisions of the current Agreement which included investing over $1,000,000 of improvements to the course during the first five years. The City and Club have determined additional capital improvements of approximately $250,000 are needed in order to rebuild greens due to salt water intrusion, rebuild the sand traps and tee boxes and connect to newly installed reclaimed water source. In addition, once the reclaimed water source is connected the Club will be responsible to pay for the water estimated to be approximately $30,000 per year. Staff recommends amending the current Agreement to allow the Club an additional seven (7) years to complete the needed improvements and in return continue the 50% reduction of the base rental payment during the next seven (7) years of the Agreement. Base rental payment is $48,000 per year. Review Approval: 1) Legal 2) Clerk 3) Office of Management and Budget 4) Clerk 5) Assistant City Manager 6) Clerk 7) City Manager 8) Clerk Cover Memo 1 FIRST AMENDMENT TO LEASE AGREEMENT THIS FIRST AMENDMENT TO LEASE AGREEMENT (the “Amendment”) is made and entered into on this _____ day of ______________, 2010, (“Effective Date”) by and between the City of Clearwater, Florida, a municipal corporation of the state of Florida, ( “City”) and the Clearwater Golf Associates, Inc., whose address is 1875 Airport Drive, Clearwater Florida 33765, (“Club”) amending that certain Lease Agreement (”Lease”) between the parties dated December 19, 2001, and recorded on January 17, 2002 in O.R. Book 11793, page 759, Public Records of Pinellas County, Florida. WHEREAS, pursuant to the original Lease, the City leased certain city-owned property (“Golf Course”) to the Club; and WHEREAS, the Club has been faithful to comply with all of the provisions of the Agreement; and WHEREAS, over the past seven (7) years the Club has invested over $1,000,000 in upgrades and improvements to the Golf Course property and buildings in accordance with the Lease; and WHEREAS, the Club has created a much improved asset for the City and provided excellent golfing and recreational opportunities and programs for residents and visitors to Clearwater; and WHEREAS, there are additional improvements that need to be made at the golf course over the next several years due to environmental circumstances (water resources) outside of the control of the Club and the City; and WHEREAS, the Club needs additional relief from its obligations under the current Lease in order to accomplish the additional improvements, which are estimated to be valued at $250,000; and WHEREAS, the City agrees that the additional upgrades, including rebuilding greens, sand traps, tee boxes, and providing connection to reclaimed water from existing deep wells, are in the Attachment number 1 Page 1 of 3 2 public interest, necessary to maintain the City’s property asset, and continue providing the recreational services provided by the Club and the City, and that such improvements are a value to the City and citizens of Clearwater and beyond the normal routine maintenance obligations of the Club; and WHEREAS, the parties desire to amend the Lease so that the Club can construct these additional needed improvements. NOW THEREFORE, in consideration of the mutual covenants set forth herein, and other good and valuable consideration, the receipt of which are hereby acknowledged, the Parties agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated in and form a part of this Agreement 2. Lease Extension. The last sentence of Section 1 of the Lease is hereby amended to provide for a Lease extension of seven (7) years (“Lease Extension”) and shall read as follows: “The term of this lease shall be for a period of twenty seven (2027) years, commencing March 1, 2002, and ending February 28, 2022 2029 , unless sooner terminated by the provisions hereof.” 3. Rent Relief in Consideration of Capital Improvements. Section 2, paragraph 4 is hereby amended to extend the period for the forgiveness of a portion of the rent payments due for an additional period of seven (7) years, resulting in fifty percent (50%) rent forgiveness for a total of fourteen (14) years from the Effective Date of the Lease, and shall read as follows: “As consideration of the Club’s capital improvements described in Section 5 of this Agreement, the City agrees to relieve fifty percent (50%) of the base rental only for the first seven fourteen (714) years of the Agreement.. Beginning with the eighth fifteenth (15th) year of this Agreement as amended, through termination, full base rent plus any additional rent will be due.” Attachment number 1 Page 2 of 3 3 4. Section 5 is amended to provide for the additional list of improvements to be made and shall read as follows: (e) During the seventh to fourteenth years of this Agreement, the Club shall rebuild the greens, sand traps, tee boxes and construct the necessary hookup to begin using reclaimed water as soon as it is available to the Golf Course. Notwithstanding any other covenants and conditions in the Lease to the contrary, the Club shall not be entitled to any reimbursement for the improvements provided for in this Amendment, and Club acknowledges that the timeframe for any reimbursement to which it may have been entitled under the original terms of the Lease (specifically Section 21), have expired. No reimbursement whatsoever is due from the City to the Club for improvements made to the Golf Course. 5. All other terms and conditions of the Lease shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed and delivered this Amendment the day and year first above written. CLEARWATER GOLF ASSOCIATES, INC. By: _______________________________ , President Countersigned: CITY OF CLEARWATER, FLORIDA ________________________________ By: _______________________________ Frank V. Hibbard William B. Horne, II Mayor City Manager Approved as to form: Attest: _________________________________ ____________________________________ Laura Lipowski Mahony Cynthia E. Goudeau Assistant City Attorney City Clerk Attachment number 1 Page 3 of 3 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Accept an Edward Byrne Memorial Justice Assistance/Recovery Act Grant in the amount of $100,000 from the Florida Department of Law Enforcement, Office of Criminal Justice Grants (FDLE), for the Hispanic Outreach Center Partnership project and authorize the appropriate officials to execute same. (consent) SUMMARY: 1.On May 6, 2009, Clearwater Police Department (CPD) was granted approval by the City’s Resource Management Committee to apply for grant funding for the continuation of Operacion Apoyo Hispano (Operation Hispanic Outreach). On December 14, 2009, the grant was officially awarded by FDLE. 2.The official grant period is October 1, 2009 – September 30, 2010. FDLE was delayed in awarding the grant due to the large number of grant applications and awards the agency was required to process this year. FDLE has advised that Clearwater will be permitted to request a no-cost extension of time for the grant project if necessary. 3.City Council approval is requested to accept the grant and enter into a contractual agreement with Pinellas Core Management Services, Inc. (PCMS - fiscal agent for the Hispanic Outreach Center) to administer Operacion Apoyo Hispano, which consists of advocacy, interpretation, translation of documents, and crime prevention/education activities. The program will be enhanced this year with the addition of a gang prevention program that will include a full- time Gang Prevention Specialist (employed by the Hispanic Outreach Center) who will implement the program in two Clearwater elementary schools. 4.There are no additional costs associated with this project such as additional personnel or cash match. 5.Special Project 181-99259 has been established to account for the grant expenditures. Type:Other Current Year Budget?:No Budget Adjustment:Yes Budget Adjustment Comments: Established the project during the Quarterly process. Current Year Cost:$100,000.00 Annual Operating Cost:-0- Not to Exceed:Total Cost:$100,000.00 For Fiscal Year:2009 to 2010 Appropriation Code Amount Appropriation Comment 181-99259 $100,000.00 Review Approval:1) Office of Management and Budget 2) Legal 3) Clerk 4) Assistant City Manager 5) Clerk 6) City Manager 7) Clerk Cover Memo AGREEMENT THIS AGREEMENT is made and entered into on the ____ day of _____________, 2010, by and between Pinellas Core Management Services, Inc. (PCMS) hereinafter referred to as the “Contractor”, and the City of Clearwater, Florida, a municipal corporation, hereinafter referred to as the “City”, hereby incorporates by reference the City of Clearwater’s “Standard Requirements for Requests for Proposals”; Exhibit A - Insurance Requirements; and Exhibits B, C & D - Scope of Services. WITNESSETH: WHEREAS, the City has been awarded a grant from the U. S. Department of Justice, Bureau of Justice Assistance, Edward Byrne Memorial Justice Assistance Grant Program, in the amount of $100,000, for the implementation of an Hispanic Outreach Center Partnership; WHEREAS, the Contractor has agreed to implement and administer interpreter, victim advocacy, and gang prevention services in partnership with the City; NOW THEREFORE, in consideration of the promises and the mutual covenants contained in the Agreement, the Contractor and City hereby agree as follows: 1. TERM. This Agreement shall commence on the 1st day of October, 2009, and shall terminate on the 30th day of September, 2010, unless earlier terminated by either party hereto. Either party may terminate this Agreement upon thirty (30) days prior written notice. 2. CONTRACTOR’S SERVICES. The Contractor shall furnish all material and perform all of the work for administration and implementation of an Hispanic Outreach Center Partnership, which provides interpreter, victim advocacy, and gang prevention services to Hispanics in the City per the attached Scope of Services (Exhibits B, C & D). 3. CONFIDENTIAL INFORMATION. The Contractor understands that while providing services during the term of this Agreement, it may obtain information that is exempt from public disclosure by Florida Statues or that relates to matters rendered confidential by Florida Statutes. Contractor understands that such information shall not be disclosed or otherwise disseminated to third parties without the written authorization of the City. Contractor further understands that any records containing such information will be securely maintained and that it will promptly inform the City of any unauthorized disclosures of such information. Attachment number 1 Page 1 of 3 4. CONSIDERATION. Upon execution of this Agreement by all parties, the City will pay for costs associated with the implementation of the program as specifically indicated in Exhibits B, C & D. The Contractor shall submit monthly billing to the City, including all invoices, receipts, copies of payroll checks, and other documentation of expenses for which the Contractor seeks reimbursement pursuant to this Agreement. Such monthly billing shall be submitted to the City no later than seven (7) days after the close of each month. The City’s maximum liability under this contract shall not exceed $100,000 – the total amount of the grant. 5. THE WAIVER. Failure to invoke any right, condition, or covenant in this Agreement by either party shall not be deemed to imply or constitute a waiver of any rights, condition, or covenant and neither party may rely on such failure. 6. NOTICE. Any notice or communication permitted or required by the Agreement shall be deemed effective when personally delivered or deposited, postage prepaid, in the first class mail of the United States properly addressed to the appropriate party at the address set forth below: A. NOTICES TO CONTRACTOR: Mail to: With a copy to: Pinellas Core Management Services, Inc. Sandra Lyth 14155 - 58th Street N Hispanic Outreach Center Suite 200 612 Franklin Street Clearwater, FL 33760 Clearwater, FL 33756 B. NOTICES TO CITY: Mail to: With a copy to: Chief of Police City Attorney’s Office Clearwater Police Department City of Clearwater 645 Pierce Street P.O. Box 4748 Clearwater, FL 33756 Clearwater, FL 33758 7. ENFORCEABILITY. If any provision of the Agreement is held by a court of competent jurisdiction to be unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be impaired. Attachment number 1 Page 2 of 3 8. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof, and replaces and supersedes all other agreements of understandings, whether written or oral. No amendment or extension of the Agreement shall be binding unless in writing and signed by both parties. 9. BINDING EFFECT, ASSIGNMENT. This Agreement shall be binding upon and shall inure to the benefit of the Contractor and the City. Nothing in this Agreement shall be construed to permit the assignment by the Contractor of any of its rights or obligations hereunder, as such assignment is expressly prohibited without the prior written consent of the City. 10. GOVERNING LAW, SEVERABILITY. In the performance of the Agreement, each party shall comply with all applicable federal, state and local laws, rules, ordinances and regulations. This Agreement shall be governed by the laws of the State of Florida. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision. In witness whereof, the parties hereto have set their hands and seals on the date first above written. Countersigned: CITY OF CLEARWATER, FLORIDA __________________________ By:____________________________ Frank V. Hibbard William B. Horne, II Mayor City Manager Approved as to form: Attest: __________________________ _______________________________ Robert J. Surette Cynthia E. Goudeau Assistant City Attorney City Clerk PINELLAS CORE MANAGEMENT SERVICES, INC. By: _______________________________ Elise Minkoff Board Chairperson Attachment number 1 Page 3 of 3 1 INSURANCE REQUIREMENTS EXHIBIT A The vendor shall provide insurance and comply with all requirements as contained herein prior to performing any services or providing any products to the City. a. Insurance The applicant shall furnish, pay for, and maintain during the life of the contract with the City the following liability coverage: 1. Comprehensive General Liability Insurance on an “occurrence” basis in an amount not less than $1,000,000 combined single-limit Bodily Injury Liability and Property Damage Liability. 2. Business Automobile Liability insurance in the amount of at least 1,000,000, providing Bodily Injury Liability and Property Damage Liability. 3. Workers’ Compensation Insurance applicable to its employees and contractors for statutory coverage limits, and Employers’ Liability that meets all applicable state and federal laws. b. Additional Insured The City is to be specifically included as an additional insured on all liability coverage shown in sections 1 and 2 described above. c. Notice of Cancellation or Restriction All policies of insurance must be endorsed to provide the City with thirty (30) days’ notice of cancellation or restriction. d. Certificates of Insurance/Certified Copies of Policies The applicant shall provide the City with a certificate or certificates of insurance showing the existence of the coverage required by this Agreement. The applicant will maintain this coverage with a current certificate or certificates of insurance throughout the term stated in the proposal. When specifically requested by the City in writing, the applicant will provide the City with certified copies of all policies of insurance as required above. New certificates and new certified copies of policies (if certified copies of policies are requested) shall be provided to the City whenever any policy is renewed, revised, or obtained from other insurers. Attachment number 2 Page 1 of 2 2 e. The certificates and/or certified policies shall be sent or delivered to the Project Manager and addressed to: The address where such certificates and certified policies shall be sent or delivered as follows: City of Clearwater P.O. Box 4748 Clearwater, FL 33758-4748 f. The applicant shall defend, indemnify, save and hold the City harmless from any and all claims, suits, judgments and liability for death, personal injury, bodily injury, or property damage arising directly or indirectly from the performance by the applicant, its employees, subcontractors, or assigns, including legal fees, court costs, or other legal expenses. Applicant acknowledges that it is solely responsible for complying with the terms of this Agreement. In addition, the applicant shall, at its expense, secure and provide to the City, prior to beginning performance under this Agreement, insurance coverage as required in this Agreement. Any party providing services or products to the City will be expected to enter to a written agreement, contract, or purchase order with the City that incorporates, either in writing or by reference, all of the pertinent provisions relating to insurance and insurance Any party providing services or products to the City will be expected requirements as contained herein. A failure to do so may, at the sole option of the City, disqualify any bidder or proposer of services and/or products to the City. Attachment number 2 Page 2 of 2 EXHIBIT B HISPANIC OUTREACH CENTER (HOC) INTERPRETER PROGRAM SCOPE OF SERVICES Pinellas Core Management Services, Inc. (PCMS) agrees to comply with the terms, conditions and scope of the Edward Byrne Memorial Justice Assistance Grant Program, administered by the U.S. Department of Justice, Bureau of Justice Assistance, and will specifically comply with all Acceptance Agreement Conditions as listed in the Grant Award and Special Conditions documents. Program Components 1. Supervision • Fulfill the functions of supervisor for interpreters and any volunteers or other staff that may be connected with the program • Maintain an on-call procedure which meets the needs of the Clearwater Police Department (CPD), revising and improving as necessary. • In collaboration with CPD, maintain a protocol for working with the police and the courts, in various settings, including interviews, the scene of a crime, and in legal proceedings, revising and improving as necessary. 2. Recruiting • Maintain a group of approximately 12 trained interpreters, who are fluently bilingual in Spanish and English, to act as interpreters between Spanish speaking residents of the City of Clearwater and the police. • In collaboration with the CPD, continue to recruit, screen, and train interpreters, as needed. 3. Information Management • Maintain an information management system, including reports written by the interpreters following a call-out. • From this information, maintain a data base of critical information including descriptions of the incidents, the participants, time of day, etc., which will be developed into a formal evaluation Attachment number 3 Page 1 of 2 2 4. Interpreter Services • Complete an annual total of 120 interpreter call-outs for the one- year grant period (30 per quarter). 5. Written Translations • Provide qualified translators to translate written documents for CPD as needed. 6. Reporting • The Executive Director for the Hispanic Outreach Center will maintain records of activity and case-by-case outcomes on all of the above responsibilities. Prepare a monthly report, to be reviewed by PCMS and submitted to the Clearwater Police Department no later than seven days after the end of each month. Attachment number 3 Page 2 of 2 EXHIBIT C HISPANIC OUTREACH CENTER (HOC) VICTIM ADVOCACY PROGRAM SCOPE OF SERVICES Pinellas Core Management Services, Inc. (PCMS) agrees to comply with the terms, conditions and scope of the Edward Byrne Memorial Justice Assistance Grant Program, administered by the U.S. Department of Justice, Bureau of Justice Assistance, and will specifically comply with all Acceptance Agreement Conditions as listed in the Grant Award and Special Conditions documents. Program Components 1. Victim Advocate • Maintain the existing full time Victim Advocate position at the Hispanic Outreach Center to perform the duties associated with the implementation of the Victim Advocacy program for the one-year grant period. 2. Outreach • Contact individuals and organizations in the community, providing information about the advocacy services of the HOC. • Provide direct information to victims and potential victims of crime through notices in Spanish speaking businesses, churches, public speaking, and word of mouth • Provide victim advocacy and support services for a total of 75 crime victims for the one-year grant period (18.75 per quarter). 3. Intervention • Provide advice and counseling with the objective of having the incident(s) reported to the police • Provide support and assistance during interviews, legal proceedings, and related processes 4. Referral and Support • Assist Hispanic victims to gain access to services that may be required by the victim as a result of a crime, such as alternate housing, financial aid, medical care, and services for children, as needed Attachment number 4 Page 1 of 2 2 • Refer the victim to agencies and services which have a Spanish speaking capability, according to the needs of the individual • Assist the victim in maintaining a working relationship with the police during the process • Provide crisis intervention, information and referral for a total of 175 persons for the one-year grant period (43.75 per quarter). 5. Liaison with the Clearwater Police Department (CPD) • Provide information to Senior Officials and Officers of CPD regarding obstacles faced by Hispanic residents in reporting crimes and seeking redress through the legal system • Provide training or orientation to members of the CPD regarding the program • Work continuously with representatives of the CPD to improve the awareness of Hispanic residents of the services available to them through the legal system. 6. Public Education • Attend meetings, give presentations, and perform other functions which will enhance the visibility of the needs of the Hispanic community, specifically victims of crime, and the needs of Hispanic women and girls 7. Reporting • The Executive Director for the Hispanic Outreach Center will maintain records of activity and case-by-case outcomes on all of the above responsibilities. Prepare a monthly report, to be reviewed by PCMS and submitted to the Clearwater Police Department no later than seven days after the end of each month. Attachment number 4 Page 2 of 2 EXHIBIT D HISPANIC OUTREACH CENTER (HOC) GANG PREVENTION PROGRAM SCOPE OF SERVICES Pinellas Core Management Services, Inc. (PCMS) agrees to comply with the terms, conditions and scope of the Edward Byrne Memorial Justice Assistance Grant Program, administered by the U.S. Department of Justice, Bureau of Justice Assistance, and will specifically comply with all Acceptance Agreement Conditions as listed in the Grant Award and Special Conditions documents. Program Components 1. Gang Prevention Specialist • Create and fill one full time Gang Prevention Specialist position to perform duties associated with the implementation of the Gang Prevention Program for the one-year grant period. 2. Crime Prevention, Education and Outreach • Work with Clearwater Police to identify leaders in the Hispanic community and develop information/education networks in the community regarding gangs. • Provide a comprehensive gang prevention program in at two Clearwater Elementary Schools for a total of 50 students for the one- year grant period (12.5 per quarter). 3. Reporting • The Executive Director for the Hispanic Outreach Center will maintain records of activity and case-by-case outcomes on all of the above responsibilities. Prepare a monthly report, to be reviewed by PCMS and submitted to the Clearwater Police Department no later than seven days after the end of each month. Attachment number 5 Page 1 of 1 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Accept an Edward Byrne Memorial Justice Assistance Grant in the amount of $6,625 from the Florida Department of Law Enforcement, Office of Criminal Justice Grants (FDLE), for Rosetta Stone Spanish language training and authorize the appropriate officials to execute same. (consent) SUMMARY: On July 7, 2009, Clearwater Police Department (CPD) was granted e-mail approval by the City’s Resource Management Committee to apply for grant funding in the amount of $6,625 for the purchase of an online subscription to Rosetta Stone Spanish language software. On November 20, 2009, the grant was officially awarded by FDLE. The language barrier confronting the CPD continues to present a serious challenge to its police officers. To address this problem, CPD has relied on the use of contractual interpreter services provided by the Hispanic Outreach Center (HOC) in Clearwater. While this program has been successful thus far, it does not address the expediency and officer safety issues that could be resolved if more Clearwater police officers spoke at least some Spanish. The increasing presence of Hispanic gangs in Clearwater raises very real concerns for officer safety when dealing with this criminal element. The inability to understand what these individuals may be saying in Spanish when confronted by CPD officers who only speak English could possibly place Clearwater police officers in serious jeopardy. Likewise, a Spanish-speaking resident who is in need of immediate assistance, such as a traffic accident victim or lost child, would be better served by a police officer who can speak with them directly rather than having to wait for the arrival of an on-call HOC interpreter. CPD conducted research on how best to train Clearwater police officers to communicate with the city’s Hispanic population. With changing work schedules, off-duty jobs, and busy personal lives, it was determined that traditional Spanish classes are not the best option for law enforcement officers. After months of research and speaking with Clearwater police officers regarding their needs, CPD found that a self-paced, interactive software such as Rosetta Stone would be the most effective tool for officers to learn to speak Spanish. With Rosetta Stone, CPD officers can learn to communicate in Spanish in a matter of months. Purchase of an online subscription will provide named users access to Rosetta Stone courseware 24 hours a day, 7 days per week for an annual subscription period, with all licenses starting and ending on the same date. This flexible license agreement allows subscriptions to be reassigned to new users as initial users complete the course and are deactivated while maintaining course reporting for all users. The online subscription also includes unlimited access to administrative tools, one headset per license, and technical support. Clearwater officers will be able to access the Rosetta Stone courseware through their mobile laptop computers and will be permitted three hours per week of on-duty time to pursue their language studies. It is estimated that a minimum of 50 officers will be able to complete the Rosetta Stone training during the 12-month grant period. Depending on how quickly some officers are able to progress through the course, this number could be even higher. Other than the above-referenced three hours per week of on-duty time, there are no additional costs associated with this project such as additional personnel or cash match. Special Project 181-99260 has been established to account for the grant expenditures. Type:Other Current Year Budget?:No Budget Adjustment:Yes Budget Adjustment Comments: Establish project during the Quarterly process. Cover Memo Current Year Cost:$6,625.00 Annual Operating Cost: Not to Exceed:Total Cost:$6,625.00 For Fiscal Year: to Appropriation Code Amount Appropriation Comment 181-99260 $6,625.00 Review Approval:1) Office of Management and Budget 2) Legal 3) Clerk 4) Assistant City Manager 5) Clerk 6) City Manager 7) Clerk Cover Memo Attachment number 1 Page 1 of 33 Attachment number 1 Page 2 of 33 Attachment number 1 Page 3 of 33 Attachment number 1 Page 4 of 33 Attachment number 1 Page 5 of 33 Attachment number 1 Page 6 of 33 Attachment number 1 Page 7 of 33 Attachment number 1 Page 8 of 33 Attachment number 1 Page 9 of 33 Attachment number 1 Page 10 of 33 Attachment number 1 Page 11 of 33 Attachment number 1 Page 12 of 33 Attachment number 1 Page 13 of 33 Attachment number 1 Page 14 of 33 Attachment number 1 Page 15 of 33 Attachment number 1 Page 16 of 33 Attachment number 1 Page 17 of 33 Attachment number 1 Page 18 of 33 Attachment number 1 Page 19 of 33 Attachment number 1 Page 20 of 33 Attachment number 1 Page 21 of 33 Attachment number 1 Page 22 of 33 Attachment number 1 Page 23 of 33 Attachment number 1 Page 24 of 33 Attachment number 1 Page 25 of 33 Attachment number 1 Page 26 of 33 Attachment number 1 Page 27 of 33 Attachment number 1 Page 28 of 33 Attachment number 1 Page 29 of 33 Attachment number 1 Page 30 of 33 Attachment number 1 Page 31 of 33 Attachment number 1 Page 32 of 33 Attachment number 1 Page 33 of 33 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Award a contract to Waterline Construction, Inc. in the amount of $37,950 for the Turnstile Removal Clearwater Harbor, authorize funding in the amount of $37,950 from the General Fund reserves and authorize appropriate officials to execute same. (consent) SUMMARY: Concerns have been raised over the old railroad turnstile located in Clearwater Harbor west of the Seminole Street Boat Ramp. Engineering solicited proposals from three marine contractors to remove the turnstile: Waterline Construction, Inc. of Tampa was the low bidder at $34,500 plus 10% contingency $3,450 for a total of $37,950, Misener Marine at $40,000 and Coastal Construction was non responsive to our request. A first quarter amendment will transfer $37,950 from Gen Fund retained earnings to Capital Improvement Program project 0315- 92822, Miscellaneous Engineering. Type:Capital expenditure Current Year Budget?:No Budget Adjustment:Yes Budget Adjustment Comments: See summary Current Year Cost:$37,950.00 Annual Operating Cost: Not to Exceed:$37,950.00 Total Cost:37,950.00 For Fiscal Year:2009 to 2010 Appropriation Code Amount Appropriation Comment 0315-92822-563800-549-000- 0000 $37,950.00 Review Approval: 1) Financial Services 2) Office of Management and Budget 3) Legal 4) Clerk 5) Assistant City Manager 6) Clerk 7) City Manager 8) Clerk Cover Memo Attachment number 1 Page 1 of 1 Attachment number 2 Page 1 of 3 Attachment number 2 Page 2 of 3 Attachment number 2 Page 3 of 3 5600 West Commerce Street / Tampa, Florida 33616-1930 / P.O. Box 13427 Zip 33681-3427 Telephone (813) 839-8441 / Fax (813) 831-7498 December 18th, 2009 Mr. Ed Chesney, P.E. Environmental Manager City of Clearwater 100 S. Myrtle Ave. #220 Clearwater, FL. 33756-5520 PROJECT: Removal of Navigation Hazard Clearwater Harbor Dear Mr. Chesney, We are pleased to offer the following proposal to remove and dispose of the existing concrete base located near marker 2, west of the Seminole Street boat ramp in Clearwater Harbor. MMCI proposes to remove the existing structure using crane barge equipment supported by a diving crew for underwater salvage/removal operations. The operation includes breaking the concrete base in pieces using a punching pile and removing the broken pieces with a clamshell bucket; divers will inspect the bottom to make sure there is not rubble left over, and that the environment remains in its most natural conditions. Turbidity barriers and diving inspection will be in place all the time for environmental control. MMCI anticipates that removal and disposal operations will take three (3) working days. TOTAL LUMP SUMP PRICE: $40,000.00 Clarifications and Qualifications x One (1) mobilization of equipment and personnel are included in our proposal. x Acceptance of this proposal between Misener Marine Construction and City of Clearwater will be based on a mutually agreeable contract. This proposal is valid for 45 days from the date of this letter and subject to execution of a mutually agreeable contract. We hope you find this proposal acceptable and we look forward to working with City of Clearwater. Should you have any further questions and/or comments please do not hesitate to contact our office. Sincerely; John W. Whalen V. P. Tampa Operations Attachment number 3 Page 1 of 1 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Approve the Third Amendment to the Stevenson Creek Watershed Management Program: Implementation of Best Management Practices (K394) cooperative funding agreement with the Southwest Florida Water Management District to extend the contract period to December 31, 2010 and authorize the appropriate officials to execute same. (consent) SUMMARY: This contract is a cooperative funding contract with the Southwest Florida Water Management District (SWFWMD) to design and implement the Lake Bellevue Stormwater Management Project recommended by the Stevenson Creek Watershed Management Plan. The City and SWFWMD entered into the original Cooperative Funding agreement for the Stevenson Creek Watershed Management Program: Implementation of Best Management Practices (K394) on April 9, 2002. The agreement was amended on March 9, 2004, and September 22, 2006. The Lake Bellevue Stormwater Management Project is currently under construction and partially funded by this agreement. This Third Amendment extends the contract period to December 31, 2010, allowing the City to use the remaining cooperative funding for the Lake Bellevue Project. Type:Purchase Current Year Budget?:None Budget Adjustment:None Budget Adjustment Comments: Current Year Cost:Annual Operating Cost: Not to Exceed:Total Cost: For Fiscal Year: to Review Approval:1) Legal 2) Clerk 3) Assistant City Manager 4) Clerk 5) City Manager 6) Clerk Cover Memo Attachment number 1 Page 1 of 2 Attachment number 1 Page 2 of 2 PR O S P E C T AV E TUSKAW ILLA PINELLAS MY R T LE HA M L E T RE Y N O L D S CENTRAL AV E GRA ND E LAKEVIEW BLVD. WOODLAWN McLENNAN WAY AVE RD STB C D ST A HA M L E T ST ST ST AVE HA M L E T A V E W 1 S T P o m e l o HA M L E T RD ST B e l l e Dem p s e y S h o r e ST ST Tuskawilla PINELL A S Dr EW I N G AV E EW I N G WA S H I N G TO N TI O G A W MAD I S O N Vernon AVE Williamson Ln Harris KINGSLEY QUEEN Harvey PE A R L AV E AV E SOUTH MA R T I N L U T HE R K I N G J R Ha r v e y A v e Wo o d l a w n O a k s PROJECT SITE S.K.E.S.N.T.S. 306A 22-29s-15e 04/17/07 Drawn By:Reviewed By: S - T - RGrid #Date: Scale: Location Map : Lake Bellevue Sormwater Improvements Lake Bellevue Stormwater Improvements City of Clearwater Engineering Department Attachment number 2 Page 1 of 1 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Approve the final plat for “Bayside Townhomes” located at 109 McMullen Booth Road at the Southeast intersection of McMullen Booth Road and Johns Parkway. (consent) SUMMARY: This is a plat of Metes and Bounds parcel 24/02 in Section 16, Township 29 South, Range 16 East. The property is within the city limits of Clearwater consisting of 0.77 acres more or less. The final plat will create 4 townhome lots. The proposed project was approved by the Development Review Committee on October 1, 2009 and by the Community Development Board on November 17,2009 The property is zoned as Low Medium Density Residential (LMDR). Review Approval:1) Planning 2) Clerk 3) Assistant City Manager 4) Clerk 5) City Manager 6) Clerk Cover Memo B LA STREET BAY CA L A I S SAN MA D E R A ST RD TH O R N T O N OO BR I G A D DR N CIR EL I Z A B E T H CR O S S DREW AV E THOMAS RD WOLFE RD SANGRAND VIEW MERRILL HOYT AVEMO S S AVE AVE ( 4 9 T H S T ) B A Y S I D E CR - 6 1 1 Featherwoo d Mc M UL L E N B O O T H RD. JOHNS PARKWAY DOWNING BAY "K " S T LA CHAMBLEE BORDEAUX LA LA TENNESSEE A V E B A Y V I E W Carolina CR-31 ST BA Y MEA D O W GULF-TO-BAY KENTUCKY VIRGINIA BA Y V I E W A V E LA R K AVE Eastwood Dr.Cherry Ln. Cleveland St. BLVD Terrace View La. AL A M ED A MO N T E R E Y MA X I M O MATEO BERNADINO MacDonald SR-60 C O U RTNEY BAY S H O R E B L V D LA Coop PLAT LOCATION Location Map Prepared by: Engineering Department Geographic Technology Division 100 S. Myrtle Ave, Clearwater, FL 33756 Ph: (727)562-4750, Fax: (727)526-4755 www.MyClearwater.com JHHTM 1'=800'292A 16-29s-16e1/8/2010Map Gen By:Reviewed By:S-T-R:Grid #:Date:Scale: Plat Location of Bayside Townhomes Map Document: (V:\GIS\Engineering\Location Maps\Bayside Townhomes PLAT.mxd) Attachment number 1 Page 1 of 1 Attachment number 2 Page 1 of 1 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Approve two Work Orders to Engineer of Record (EOR)Sam Schwartz Engineering of Tampa, Florida, for the design and construction administrative services of (1) Hillcrest Neighborhood Traffic Calming (10-0002 –EN) in the amount of $330,242.03 and (2) Greenlea-Otten Neighborhood Traffic Calming in the amount of $344,568.00 for a total of $674,810.03 and authorize the appropriate officials to execute same. (consent) SUMMARY: These contracts are for engineering design and construction administration services for traffic calming in the Hillcrest and Greenlea-Otten neighborhoods. These traffic calming projects are in response to long-standing resident requests for a solution to speeding vehicles and agressive driving in these residential neighborhoods. The projects provide traffic calming treatments throughout the neighborhoods and are included in the City’s traffic calming work program. Hillcrest and Greenlea-Otten neighborhoods are ranked 8 and 7, respectively, for traffic calming by number of crashes. The work involves design of conceptual Traffic Calming Plans that were developed by neighborhood residents at a City-sponsored charrette workshop, then field-verified by engineers. The Traffic Calming Plans are supported by petitions signed by the owners of approximately 65% of the parcels in the Hillcrest and Greenlea-Otten neighborhoods. The engineering designs will be based on the neighborhood Traffic Calming Plans developed and approved by consensus of the residents. Work on the Hillcrest design will commence upon award and execution of the Work Order. The design work will be completed in 309 days. The construction engineering services will be completed at the end of construction in approximately 10 additional months. Work on the Greenlea-Otten design will also commence upon award and execution of the Work Order. The design work will be completed in 309 days. The construction engineering services will be completed at the end of construction in approximately 10 additional months Maintenance of the associated signing and pavement marking will be performed by the Traffic Operations Division. Maintenance of the associated landscaping and irrigation will be performed by the Parks and Recreation Department. Greenlea -Otten TC landscaping and irrigation maintenance cost will be $9,000 annually. Hillcrest TC landscaping and irrigation maintenance cost will be $3,600 annually. Sufficient budget and funding is available in Capital Improvement Program (CIP) project 315-92259, Traffic Calming to fund these work orders. Type:Capital expenditure Current Year Budget?:Yes Budget Adjustment:No Budget Adjustment Comments: Cover Memo Current Year Cost:$674,810.03 Annual Operating Cost: Not to Exceed:$674,810.03 Total Cost:$674,810.03 For Fiscal Year:2009 to 2010 Appropriation Code Amount Appropriation Comment 0315-92259-561200-541-000- 0000 $330,242.03 0315-92259-561200-541-000- 0000 $344,568.00 Bid Required?:No Bid Number: Other Bid / Contract:Bid Exceptions:None Review Approval:1) Office of Management and Budget 2) Legal 3) Clerk 4) Assistant City Manager 5) Clerk 6) City Manager 7) Clerk Cover Memo December 15, 2009 Mr. Michael D. Quillen, PE City Engineer City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756 Re: Hillcrest Neighborhood Traffic Calming Design and Construction Administration Services - Work Order Initiation Form Dear Mr. Quillen: Enclosed for your review are two (2) executed Work Order Initiation Forms for the Hillcrest Neighborhood Traffic Calming Design and Construction Administration Services. The Work Order Initiation Form has been prepared based on the following requirements: A scope of work and fee estimate is provided in the enclosure. Thank you for the opportunity to assist the City on this assignment. Should you have any questions concerning the enclosed materials, please do not hesitate to contact the undersigned or Mr. Greg Trim at 813.350.7820 Sincerely, Jeffrey D. Trim, PE, PTOE Senior Vice President Sam Schwartz Engineering JDT:GST Enclosures cc: Ken Sides, City of Clearwater Greg Trim, Sam Schwartz Engineering K:\09 Proposals\P5 Tampa\5P09234 Hillcrest Traffic Calming Design\Hillcrest Neighborhood TC Design Construction Admin Work Order 121509.docx Attachment number 1 Page 1 of 14 1 CITY OF CLEARWATER PUBLIC WORKS ADMINISTRATION SAM SCHWARTZ ENGINEERING WORK ORDER INITIATION FORM Date: December 15, 2009 Project Number: City Project Number:10-0002-EN 1. PROJECT TITLE: Hillcrest Neighborhood Traffic Calming Neighborhood Design and Construction Administration Services 2. SCOPE OF SERVICES: This Work Order Initiation Form has been prepared for the Hillcrest Neighborhood Traffic Calming Design, preparation of construction documents (plans & specifications) and construction administrative services. The Traffic Calming Design will be consistent with the neighborhood’s conceptual design that was prepared and approved by the neighborhood during an earlier traffic calming charrette workshop that was facilitated by the City. The neighborhood conceptual design consisted of the following traffic calming treatment areas: 1. Construction of three (3) landscape medians with tree well bulb-outs along Bellevue Blvd. (1) between Young and Prescott Avenues and along Boyland Avenue (2). 2. Construction of two (2) driveway links along S. Betty Lane (1) mid-block between Lakeview Road and Bellevue Blvd. and S. Evergreen Avenue (1) between Byron Road. In addition, median curves will be constructed along S. Evergreen Avenue between Campbell Court and Bellevue Blvd. 3. Construction of a two (2) small roundabouts (landscape island) along Bellevue Blvd at S. Evergreen Avenue and S. Hillcrest Avenue intersections. 4. Construction of three (3) mini-roundabouts (paved island) along St. Thomas Drives at S. Fredrica Avenue, S. Evergreen Avenue and S. Hillcrest Avenue intersections. Also, storm water improvements are included within the area of construction. 5. Construction of median curves along St. Thomas Drive as it turns into S. Betty Lane. 6. Construction of angle slow point along S. Hillcrest Avenue between Satsuma and Orange Streets. In addition, median curves will be constructed along S. Hillcrest Avenue as it approaches Sunny Park Road Attachment number 1 Page 2 of 14 2 7. Construction of tree lined streets throughout the neighborhood along Bellevue Blvd., Fredrica Drive, Prescott, S. Boyland, S. Betty Lane, S. Evergreen and S. Hillcrest Avenues. I - PRE-DESIGN PHASE Task 1 – Project Management Plan involves project start-up and daily management activities internally and externally. Progress reports will be prepared with each invoice submitted. Task 2 – Project coordination will involve sub-consultants and applicable City Departments including but not limited to: Beach & Associates; Alternate Street Design, P.A.; Irrigation Consulting Design Services, Driggers Engineering, GeoMasters Inc., Engineering, Solid Waste, Stormwater, Gas, Utilities, Public Services, Parks & Recreation, Fire & Rescue and Police Departments. Task 3 – A project kick off meeting with City staff is anticipated that will involve discussion on project scope design and surrounding impacts. II - DESIGN PHASE No geotechnical investigation is required at this time. An allowance is included under Optional Services, Final Design Plans, Storm Water Analysis for geotechnical investigation on an as-needed basis. The topographical survey has already been conducted by the City. It’s understood the topographical survey was collected back in 2001 and topographical features may have changed so limited surveying services have been included. These surveying services consist of one (1) site visit to confirm existing topographical limits during the design process, re-establishing horizontal and vertical survey control as needed and five (5) survey data collection days and processing time. An allowance is included for sub-surface utility investigation on an as-needed basis. III - FINAL DESIGN PHASE – 30/60/90/100/FINAL Task III (A) - Preparation of 30% Construction Plans and associated Design Tasks that will involve generating the following design plan sheets and performing related design tasks: Construction Plan Sheets 1. Cover Sheet 2. General Notes 3. Utility Information & Legend 4. Typical Sections (Medians, Driveway Links, Angle Slow Points & Attachment number 1 Page 3 of 14 3 Roundabouts, 5 Sheets) 5. Roadway Construction Plan Sheet Medians w/Tree Wells (Bellevue Blvd. & S. Boyland Avenue, Double Pass, 1 Sheet) 6. Roadway Construction Plan Sheet Driveway Links and Median Curves (S. Betty Lane & S. Evergreen Avenue, Double Pass, 1 Sheet) 7. Roadway Construction Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Evergreen Avenue, 1 Sheet) 8. Roadway Construction Plan Sheet Small Roundabout Int.(Bellevue Blvd. & S. Hillcrest Avenue, 1 Sheet) 9. Roadway Construction Plan Sheet Three (3) Mini-Roundabout Ints.(St. Thomas Drive & S. Betty Lane, S. Fredrica and S. Hillcrest Avenues, 2 Sheets) 10. Roadway Construction Plan Sheet Median Curves (S. Betty Lane & St. Thomas Drive, 1 Sheet) 11. Roadway Construction Plan Sheet Angle Slow Point and Median Curves (S. Hillcrest Avenue, 1 Sheet) The roadway construction plans will be prepared at a scale of 1”=20’ for full size plans. Associated Design Tasks/Activities 1. Site Visit to Review 30% Geometrics and Impacts 2. QA/QC 30% Plan Submittal Package 3. 30% Submittal Design Package Preparation 4. 30% Neighborhood Traffic Calming Tech Team Meeting 5. Utility Coordination 6. Design Coordination 7. Project Coordination Task III (B) - Preparation of 60%, 90%, 100% and Final Construction Plans and associated Design Tasks that will involve generating the following design plan sheets and performing related design tasks: Construction Plan Sheets 1. Cover Sheet 2. Sheet Index 3. Survey Control Sheet 4. General Notes 5. Utility Information & Legend 6. Typical Sections (Medians, Driveway Links, Angle Slow Points & Roundabouts, 5 Sheets) 7. Typical Sections (Flat Top Speed Table) 8. Roadway Demolition Plan Sheet Medians w/Tree Wells (Bellevue Blvd. & Boyland Avenue, Double Pass, 1 Sheet) 9. Roadway Construction/Utility Adjustment Plan Sheet Medians w/Tree Wells Attachment number 1 Page 4 of 14 4 (Bellevue Blvd. & Boyland Avenue, Double Pass, 1 Sheet) 10. Roadway Geometric Plan Sheet Medians w/Tree Wells (Bellevue Blvd. & Boyland Avenue, Double Pass, 1 Sheet) 11. Roadway Signing & Pavement Marking Plan Sheet Median w/Tree Wells (Bellevue Blvd. & Boyland Avenue, Double Pass, 1 Sheet) 12. Roadway Demolition Plan Sheet Driveway Links & Median Curves (S. Betty Lane & S. Evergreen Avenue, Double Pass, 1 Sheet) 13. Roadway Construction/Utility Adjustment Plan Sheet Driveway Links & Median Curves (S. Betty Lane & S. Evergreen Avenue, Double Pass, 1 Sheet) 14. Roadway Geometric & Grading Plan Sheet Driveway Links & Median Curves (S. Betty Lane & S. Evergreen Avenue, Double Pass, 1 Sheet) 15. Roadway Signing & Pavement Marking Plan Driveway Links & Median Curves (S. Betty Lane & S. Evergreen Avenue, Double Pass, 1 Sheet) 16. Roadway Demolition Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Evergreen Avenue, 1 Sheet) 17. Roadway Construction Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Evergreen Avenue, 1 Sheet ) 18. Roadway Geometric & Grading Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Evergreen Avenue, 1 Sheet) 19. Roadway Utility Adjustment Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Evergreen Avenue, 1 Sheet) 20. Roadway Signing & Pavement Marking Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Evergreen Avenue, 1 Sheet) 21. Roadway Irrigation Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Evergreen Avenue, 1 Sheet) 22. Roadway Demolition Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Hillcrest Avenue, 1 Sheet) 23. Roadway Construction Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Hillcrest Avenue, 1 Sheet ) 24. Roadway Geometric & Grading Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Hillcrest Avenue, 1 Sheet) 25. Roadway Utility Adjustment Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Hillcrest Avenue, 1 Sheet) 26. Roadway Signing & Pavement Marking Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Hillcrest Avenue, 1 Sheet) 27. Roadway Irrigation Plan Sheet Small Roundabout Int. (Bellevue Blvd. & S. Hillcrest Avenue, 1 Sheet) 28. Roadway Demolition Plan Sheet Three (3) Mini-Roundabout Ints. (St. Thomas Drive & S. Fredrica, S. Evergreen and S. Hillcrest, Double Pass, 1 Sheet) 29. Roadway Construction/Utility Adjustment Plan Sheet Three (3) Mini- Roundabout Ints. (St. Thomas Drive & S. Fredrica, S. Evergreen and S. Hillcrest, Double Pass, 1 Sheet) 30. Roadway Geometric & Grading Plan Sheet Three (3) Mini-Roundabout Ints. (St. Thomas Drive & S. Fredrica, S. Evergreen and S. Hillcrest, Double Pass, 1 Sheet) Attachment number 1 Page 5 of 14 5 31. Roadway Signing & Pavement Marking Plan Sheet Three (3) Mini- Roundabout Ints. (St. Thomas Drive & S. Fredrica, S. Evergreen and S. Hillcrest, Double Pass, 1 Sheet) 32. Roadway Irrigation Plan Sheet Three (3) Mini-Roundabout Ints. (St. Thomas Drive & S. Fredrica, S. Evergreen and S. Hillcrest, Double Pass, 1 Sheet) 33. Roadway Demolition Plan Sheet Median Curves (S. Betty Lane, 1 Sheet) 34. Roadway Construction/Utility Adjustment Plan Sheet Median Curves (S. Betty Lane, 1 Sheet) 35. Roadway Geometric Plan Sheet Media Curves (S. Betty Lane, 1 Sheet) 36. Roadway Signing & Pavement Marking Plan Sheet Median Curves (S. Betty Lane, 1 Sheet) 37. Roadway Demolition Plan Sheet Angle Slow Point & Median Curves (S. Hillcrest Avenue, 1 Sheet) 38. Roadway Construction/Utility Adjustment Plan Sheet Angle Slow Point & Median Curves (S. Hillcrest Avenue, 1 Sheet) 39. Roadway Geometric & Grading Plan Sheet Angle Slow Point & Median Curves (S. Hillcrest Avenue, 1 Sheet) 40. Roadway Signing & Pavement Marking Plan Sheet Angle Slow Point & Median Curves (S. Hillcrest Avenue, 1 Sheet) 41. Roadway Landscape Plan Sheet (Bellevue Blvd. from Jefferson Avenue to Sunny Park Road, Approx. 2000’, Double Pass, 2 Sheets, Including Two Roundabouts at S. Evergreen & S. Hillcrest Avenues) 42. Roadway Landscape Plan Sheet (Prescott Avenue from Bellevue Blvd. to Belleair Road, Approx. 2000’, Double Pass, 2 Sheets) 43. Roadway Landscape Plan Sheet (Boyland Avenue from Bellevue Blvd. to Lakeview Road, Approx. 2000’, Double Pass, 2 Sheets) 44. Roadway Landscape Plan Sheet (S. Betty Lane Avenue from St. Thomas Drive to Lakeview Road, Approx. 3200’, Double Pass, 3 Sheets) 45. Roadway Landscape Plan Sheet (S. Fredrica Avenue from Howard Street to Bellevue Blvd., Approx. 1800’, Double Pass, 2 Sheets, including mini- roundabout St. Thomas Drive) 46. Roadway Landscape Plan Sheet (S. Evergreen Avenue from Belleair Road to Lakeview Road, Approx. 4000’, Double Pass, 4 Sheets, including mini- roundabout at St. Thomas Drive) 47. Roadway Landscape Plan Sheet (S. Hillcrest Avenue from Regal Road to Lakeview Road, Approx. 3600’, Double Pass, 3 Sheets, including mini- roundabout at St. Thomas Drive) 48. Standard Construction Details 49. Standard Construction Details 50. Standard Construction Details 51. Miscellaneous Roadway Construction Details 52. Pavement Marking Construction Details 53. Miscellaneous Drainage Construction Details 54. Miscellaneous Landscape Construction Details 55. Miscellaneous Landscape Construction Details 56. Miscellaneous Irrigation Construction Details 57. Miscellaneous Irrigation Construction Details Attachment number 1 Page 6 of 14 6 The roadway construction plans will be prepared at a scale of 1”=20’ for full size plans. Associated Design Tasks/Activities 1. Site Visit to Review 60% Utility/Geometrics/Landscape Impacts 2. Intersection Vehicular Turning Movement Analysis, Including Vehicular Turning Movement Summary Table & Turning Movement Design Parameters (Format Example to be Provided by The City) 3. 60% Utility Coordination 4. 60% Cost Estimate & Quantities 5. QA/QC 60% Plan Submittal Package 6. 60% Submittal Design Package Preparation 7. 60% Neighborhood Traffic Calming Tech Team Meeting 8. 60% Plan Review Meeting w/City 9. Respond to 60% City Review Comments 10. Project Coordination 60% Phase 11. Site Visit to Review 90% Utility/Geometrics/Landscape Impacts 12. 90% Utility Coordination 13. 90% Cost Estimate & Quantities 14. 90% Specification Package 15. QA/QC 90% Plan Submittal Package 16. 90% Submittal Design Package Preparation 17. 90% Neighborhood Traffic Calming Tech Team Meeting 18. 90% Plan Review Meeting w/City 19. Respond to 90% City Review Comments 20. Project Coordination 90% Phase 21. SWFWMD Permit Inquire Exemption Request Package 22. 100% Utility Coordination 23. 100% Cost Estimate & Quantities 24. 100% Specification Package 25. QA/QC 100% Plan Submittal Package 26. 100% Submittal Design Package Preparation 27. 100% Plan Review Meeting w/City 28. 100% Neighborhood Traffic Calming Tech Team Meeting (Optional) 29. Project Coordination 100% Phase 30. Respond to 100% City Review Comments 31. Final Bid Package Submittal Preparation 32. QA/QC Final Bid Package As outlined above these plan sheets will be submitted to the City for review at 60%, 90% and 100% including associated construction cost estimates. The design plans shall be compiled using the City of Clearwater CAD standards, as attached. Attachment number 1 Page 7 of 14 7 IV - BIDDING PHASE The bidding phase services will consist of the following activities: 1. Pre-Bid meeting attendance and assistance with preparing meeting agenda. 2. Respond to Bidding inquiries. 3. Preparing addendums. 4. Reviewing bid tabulations V - CONSTRUCTION PHASE Limited construction administration services will consist of the following activities: 1. Pre-Construction meeting attendance. 2. Shop drawing reviews. 3. Bi-weekly progress meetings and site meeting (10 month construction period estimated) 4. Respond to Contractor RFI’s and plan modification. 5. Miscellaneous site visits (6 estimated) 6. Roundabout construction survey verification (5 days estimated “as needed”) 7. Project close out activities. 8. Project coordination construction phase. VI – OPTIONAL SERVICES An independent peer review prior to each submittal will be performed by Alternate Street Design, P.A. Determine Storm Water Inlet Tributary Areas & Runoff Coefficient along St Thomas & Nursery Road Storm line. Prepare Storm Water Tabulations for storm line along St. Thomas Street and Nursery Road. Determine Storm Water Spread at Tree Well Bulb-outs and Driveway Links (Bellevue Blvd., Boylan Avenue – two locations, S. Betty Lane, and S. Evergreen Avenue). Geotechnical investigation included to support storm water sewer design. Ten Percent Design Allowance for as needed, unforeseen services. 3. PROJECT GOALS: The Hillcrest neighborhood is scheduled soon for traffic calming improvements in the year 2011 as part of an overall City neighborhood traffic calming program. As part of the City’s traffic calming program originating in 2000, the Hillcrest neighborhood participated in a series of traffic calming design charrette workshops that produced a neighborhood traffic calming conceptual design plan that was envisioned by the workshop participants and approved by a super majority of neighborhood property owners. The project goals are to implement by design and construction the Hillcrest neighborhood’s vision of traffic calming from their conceptual thoughts to actual roadway treatment devices that will physically and psychologically alter human behavior enough to calm traffic within Attachment number 1 Page 8 of 14 8 their neighborhood. Included in the process will be neighborhood technical review committee meetings at 30/60/90/100% (optional) construction plan design phases structured to allow for input, feedback and importantly to confirm that the engineering design plans are following the intent of the neighborhood’s conceptual plan. 4. BUDGET: This price includes all labor and expenses anticipated to be incurred by Sam Schwartz Engineering for the completion of these tasks, on a lump sum basis, for a basic services fee of Two Hundred and Eighty Two Thousand Seven Hundred and Sixty Eight Dollars and Seventy Six Cents ($282,768.76). Additionally, Optional Services in the amount of Forty Seven Thousand Four Hundred and Seventy Three and Twenty Seven Cents ($47,473.27) are available if needed and must be authorized by the City. The work order total cost is Three Hundred Thirty Thousand Two Hundred Forty Two Dollars and Three Cents ($330,242.03). 5. SCHEDULE: The project schedule is based upon utilizing the topographic survey that was collected back in 2001 and supplement the topographical survey as needed during the design phases. To prepare construction design plans and obtain project permits for the neighborhood traffic calming improvements will require approximately three hundred and nine (309) calendar days to complete from issuance of notice-to-proceed. The project deliverables are to be phased as follows: 30% construction plans 90 calendar days City review of 30% construction plans 14 calendar days 60% construction plans 60 calendar days City review of 60% construction plans 21 calendar days 90% construction plans/Permitting Phase 45 calendar days City review of 90% construction plans 21 calendar days 100% construction documents 30 calendar days City review of 100% construction plans 14 calendar days Final construction documents 14 calendar days 6. STAFF ASSIGNMENT Sam Schwartz Engineering Jeffrey D. Trim, Senior Vice President, Principal-in-Charge Gregory S. Trim, PE, Project Manager/Engineer (Engineer of Record) City of Clearwater Ken Sides, PE, PTOE, Project Manager Attachment number 1 Page 9 of 14 9 7. CORRESPONDENCE/REPORTING PROCEDURES: Engineer’s project correspondence shall be directed to Mr. Gregory S. Trim, PE. All City project correspondence shall be directed to Mr. Ken Sides, PE, PTOE with copies to others as may be appropriate. 8. INVOICING/FUNDING PROCEDURES: Invoices shall be submitted monthly to the City of Clearwater, Engineering Department, Attn: Ms. Veronica Josef, P.O. Box 4748, Clearwater, Florida 33758-4748, for work performed. Invoices will be prepared monthly with associated progress report with copies transmitted to Mr. Ken Sides, PE, PTOE. City Invoicing Code: 0315-92259-561200-541-000-0000 9. ENGINEER CERTIFICATION: Sam Schwartz Engineering will certify as a licensed Professional Engineer, registered in accordance with Florida Statute 471 (481), that the above project’s construction plans meet or exceed all applicable design criteria specified by City municipal ordinance, State, and Federal established standards. We understand that it is our responsibility as the project’s Professional Engineer to perform a quality assurance review of these submitted plans to ensure that such plans are free from errors and/or omissions. This certification shall apply equally to any further revision and/or submittal of plans, computations, or other project documents, which we may subsequently tender. 10. SPECIAL CONSIDERATIONS: The City of Clearwater shall be responsible for the following materials and services in support of this Work Order Amendment: 1. Provide existing utility information. 2. Conducting Project Kick-off, Pre-bid and Pre-construction meetings. 3. Perform daily construction inspection services. Attachment number 1 Page 10 of 14 10 11. PROJECT ASSUMPTIONS: The above scope and fee were prepared based upon the following assumptions: 1. No permits or coordination with Pinellas County and FDOT is anticipated. 2. No geotechnical investigation is anticipated under basic services. 3. Limited surveying services are anticipated and outlined above. Should additional effort be required beyond what is estimated that effort will need to be negotiated at that time. 4. Project construction period of ten (10) months is anticipated. PREPARED BY: APPROVED BY: ________________________ ________________________ Jeffrey D. Trim, PE Michael D. Quillen, PE Principal in Charge City Engineer Sam Schwartz Engineering City of Clearwater December 15, 2009 ________________________ Date Date Attachment number 1 Page 11 of 14 11 ATTACHMENT A CITY OF CLEARWATER HILLCREST NEIGHBORHOOD ROUNDABOUT & INTERSECTION MODIFICATION DESIGN SERVICES PPRROOJJEECCTT BBUUDDGGEETT SAM SCHWARTZ ENGINEERING – BASIC SERVICES Sub consultant Task Description Services Labor Total 1.0 Pre- Design 1.1 Monthly Project Management Plan/Start-up Activities $5.521.56 1.2 City Depts./Sub Consultant Coordination $2,467.08 1.3 Project Kick-off Meeting $1,602.00 $9,590.64 2.0 Design Data Collection 2.1 Survey Data Collection $5,000.00 $1,922.40 $6,922.40 3.0 Final Design Plans 3.1 30% Construction Plans & Design Tasks $33,625.98 3.2 60/90/100/Final Construction Plans & Design Tasks $10,000.00 $153,981.57 $197,607.55 4.0 Bidding Phase 4.1 Pre-Bid Meeting $640.80 4.2 Bidding Inquires $1,527.24 4.3 Addenda $3,364.20 4.4 Review Bid Tabulations $1,022.61 $6,554.85 5.0 Construction Phase 5.1 Pre-Construction Meeting $961.20 5.2 Shop Drawing Reviews $6,002.16 5.3 Bi-weekly Progress Meetings $17,504.52 5.4 RFI’s & Plan Modifications $10,968.36 5.5 Site Visits $6,215.76 5.6 Roundabout Construction Survey Verification 5,000.00 $1,772.88 5.7 Project Closeout $1,847.64 5.8 Project Management/Coordination $11,320.80 $61,593.32 Subtotal Basic Services $20,000.00 $262,268.76 $282,268.76 Other Direct Costs (Copies) $500.00 Grand Total Basic Services $282,768.76 Attachment number 1 Page 12 of 14 12 SAM SCHWARTZ ENGINEERING – OPTIONAL SERVICES Sub consultant Task Description Services Labor Total 1.0 Pre- Design Task Allowance (10%) $959.06 $959.06 2.0 Design Data Collection Task Allowance (10%) $500.00 $192.24 $692.24 3.0 Final Design Plans Alternate Street Design Peer Review $8,580.00 Storm Water Analysis $3,000.00 $5,916.72 Task Allowance (10%) $2,158.00 19,352.43 $39,007.15 4.0 Bidding Phase Task Allowance (10%) $655.49 $655.49 5.0 Construction Phase Task Allowance (10%) 500.00 $5,659.33 $6,159.33 Subtotal Optional Services $14,738.00 $32,735.27 $47,473.27 Subtotal Basic Services $282,768.76 Grand Total $330,242.03 Attachment number 1 Page 13 of 14 13 CITY OF CLEARWATER PUBLIC WORKS ADMINISTRATION WORK ORDER INITIATION FORM Attachment “A” CITY DELIVERABLES FORMAT The design plans shall be compiled utilizing one of the following two methods. 1. City of Clearwater CAD standards. 2. Pinellas County CAD standards 3. Datum: Horizontal and Vertical datum shall be referenced to North American Vertical Datum of 1988 (vertical) and North American Datum of 1983/90 (horizontal). The unit of measurement shall be the United States Foot. Any deviation from this datum will not be accepted unless reviewed by City of Clearwater Engineering/Geographic Technology Division. DELIVERABLES The design plans shall be produced on vellum or bond material, 24" x 36" at a scale of 1" = 20’ unless approved otherwise. Upon completion the consultant shall deliver all drawing files in digital format with all project data in Land Desktop 2000 or later including all associated dependent files. NOTE: If approved deviation from Clearwater or Pinellas County CAD standards are used the consultant shall include all necessary information to aid in manipulating the drawings including either PCP, CTB file or pen schedule for plotting. The drawing file shall include only authorized fonts, shapes, line types or other attributes contained in the standard AutoDesk, Inc. release. All block references and references contained within the drawing file shall be included. Please address any questions regarding format to Mr. Tom Mahony, at (727) 562-4762 or email address tom.mahony@clearwater- fl.com All electronic files must be delivered upon completion of project or with 100% plan submittal to City of Clearwater. Attachment number 1 Page 14 of 14 December 15, 2009 Mr. Michael D. Quillen, PE City Engineer City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756 Re: Greenlea-Otten Neighborhood Traffic Calming Design and Construction Administration Services - Work Order Initiation Form Dear Mr. Quillen: Enclosed for your review are two (2) executed Work Order Initiation Forms for the Greenlea-Otten Neighborhood Traffic Calming Design and Construction Administration Services. The Work Order Initiation Form has been prepared based on the following requirements: A scope of work and fee estimate is provided in the enclosure. Thank you for the opportunity to assist the City on this assignment. Should you have any questions concerning the enclosed materials, please do not hesitate to contact the undersigned or Mr. Greg Trim at 813.350.7820 Sincerely, Jeffrey D. Trim, PE, PTOE Senior Vice President Sam Schwartz Engineering JDT:GST Enclosures cc: Ken Sides, City of Clearwater Greg Trim, Sam Schwartz Engineering K:\09 Proposals\P5 Tampa\5P09235 Greenlea Otten Traffic Calming Design\Greenlea-Otten Neighborhood TC Design Constr Admin Work Order 121509.docx Attachment number 2 Page 1 of 15 1 CITY OF CLEARWATER PUBLIC WORKS ADMINISTRATION SAM SCHWARTZ ENGINEERING WORK ORDER INITIATION FORM Date: December 15, 2009 Project Number: City Project Number:10-0003-EN 1. PROJECT TITLE: Greenlea-Otten Neighborhood Traffic Calming Neighborhood Design and Construction Administration Services 2. SCOPE OF SERVICES: This Work Order Initiation Form has been prepared for the Greenlea-Otten Neighborhood Traffic Calming Design, preparation of construction documents (plans & specifications) and construction administrative services. The Traffic Calming Design will be consistent with the neighborhood’s conceptual design that was prepared and approved by the neighborhood during an earlier traffic calming charrette workshop that was facilitated by the City. The neighborhood conceptual design consisted of the following traffic calming treatment areas: 1. Construction of one (1) modern roundabout at Otten Street and Kings Highway intersection. 2. Construction of two (2) midblock oval medians along Otten Street between Kings Highway & Weston Drive & Highland Avenue. 3. Construction of two (2) medians with crosswalk improvements at Highland Avenue and Linwood Drive intersection. 4. Construction of speed table along Greenlea Drive near West Drive intersection. 5. Construction of a three (3) small roundabouts along Greenlea Drive at Sharondale Drive, Ridgeway Drive and Murray Avenue intersections. 6. Construction of nine (9) midblock landscape medians with tree well bulb-outs along Sharondale, Bellemeade, Lombardy, Ridgeway, Greenhill Drives, Townsend, Thames, Prince Philip and Bentley Streets. 7. Construction of four (4) tree well pairs along Greenlea Drive between Murray Avenue and Keene Road. In addition, a median will be constructed on Greenlea Drive at the intersection of Keene Road. 8. Construction of median curves along Linwood Drive including medians at tee intersections with Linwood Drive at Sharondale Drive and Murray Avenue Attachment number 2 Page 2 of 15 2 9. Construction of tree lined streets within the neighborhood along Linwood Drive, Murray Avenue, Lombardy Drive between Greenlea Drive and Sunset Point Road and Greenlea Drive between Sharondale Drive and Murray Avenue. I - PRE-DESIGN PHASE Task 1 – Project Management Plan involves project start-up and daily management activities internally and externally. Progress reports will be prepared with each invoice submitted. Task 2 – Project coordination will involve sub-consultants and applicable City Departments including but not limited to: Beach & Associates; Alternate Street Design, P.A.; Irrigation Consulting Design Services, GeoMasters Inc., Engineering, Solid Waste, Stormwater, Gas, Utilities, Public Services, Parks & Recreation, Fire & Rescue and Police Departments. Task 3 – A project kick off meeting with City staff is anticipated that will involve discussion on project scope design and surrounding impacts. II - DESIGN PHASE No geotechnical investigation is required at this time. The topographical survey has already been conducted by the City. It’s understood the topographical survey was collected back in 2001 and topographical features may have changed so limited surveying services have been included. These surveying services consist of one (1) site visit to confirm existing topographical limits during the design process, re-establishing horizontal and vertical control as needed and five (5) survey data collection days and processing time. An allowance is included for sub-surface utility investigation on an as-needed basis. III - FINAL DESIGN PHASE – 30/60/90/100/FINAL Task III (A) - Preparation of 30% Construction Plans and associated Design Tasks that will involve generating the following design plan sheets and performing related design tasks: Construction Plan Sheets 1. Cover Sheet 2. General Notes 3. Utility Information & Legend 4. Typical Sections (Roundabouts, medians w/tree wells, speed table, oval medians, medians at intersections, right turn slip lane, medians along curves and tree well pairs, 7 Sheets) 5. Roadway Construction Plan Sheet Modern Roundabout (Otten Street & Kings Highway, 1 Sheet) Attachment number 2 Page 3 of 15 3 6. Roadway Construction Plan Sheet two (2) Oval Medains and Speed Table ( Otten Street and Greenlea Drive, Double Pass, 1 Sheet) 7. Roadway Construction Plan Sheet Small Roundabout Int. (Greenlea & Sharondale Drives, 1 Sheet) 8. Roadway Construction Plan Sheet Small Roundabout Int.(Greenlea & Ridgeway Drives, 1 Sheet) 9. Roadway Construction Plan Sheet Small Roundabout Int.(Greenlea Drive & Murray Avenue, 1 Sheet) 10. Roadway Construction Plan Sheet Tree Well Pairs and Intersection Median (Greenlea Drive between Murray Avenue and Keene Road, Double Pass, 1 Sheet) 11. Roadway Construction Plan Sheet eight (8) Medians w/Tree Wells (Sharondale, Bellemeade, Lombardy, Ridgeway and Greenhill Drives, Townsend, Thames and Prince Philip Streets, Double Pass, 2 Sheets) 12. Roadway Construction Plan Sheet one (1) Median w/Tree Wells, two (2) Medians w/Crosswalks and Median Curves (Bentley Street, Highland & Linwood Intersection and along Lindwood Drive, Double Pass, 1 Sheet) 13. Roadway Construction Plan Sheet two (2) Tee Intersection Medians ( Linwood Drive at Sharondale Drive & Murray Avenue, 1 Sheet) The roadway construction plans will be prepared at a scale of 1”=20’ for full size plans. Associated Design Tasks/Activities 1. Site Visit to Review 30% Geometrics and Impacts 2. QA/QC 30% Plan Submittal Package 3. 30% Submittal Design Package Preparation 4. 30% Neighborhood Traffic Calming Tech Team Meeting 5. Utility Coordination 6. Design Coordination 7. Project Coordination Task III (B) - Preparation of 60%, 90%, 100% and Final Construction Plans and associated Design Tasks that will involve generating the following design plan sheets and performing related design tasks: Construction Plan Sheets 1. Cover Sheet 2. Sheet Index 3. Survey Control Sheet 4. General Notes 5. Utility Information & Legend 6. Typical Sections (Roundabouts, medians w/tree wells, speed table, oval medians, medians at intersections, right turn slip lane, medians along curves and tree well pairs, 7 Sheets) 7. Roadway Demolition Plan Sheet Modern Roundabout Int.(Otten Street & Kings Highway, 1 Sheet) Attachment number 2 Page 4 of 15 4 8. Roadway Construction Plan Sheet Modern Roundabout Int.(Otten Street & Kings Highway, 1 Sheet) 9. Roadway Grading Plan Sheet Modern Roundabout Int.(Otten Street & Kings Highway, 1 Sheet) 10. Roadway Utility Adjustment Plan Sheet Modern Roundabout Int.(Otten Street & Kings Highway, 1 Sheet) 11. Roadway Geometric Plan Sheet Modern Roundabout Int.(Otten Street & Kings Highway, 1 Sheet) 12. Roadway Signing & Pavement Marking Plan Sheet Modern Roundabout Int.(Otten Street & Kings Highway, 1 Sheet) 13. Roadway Landscape & Lighting Plan Sheet Modern Roundabout Int.(Otten Street & Kings Highway, 1 Sheet) 14. Roadway Irrigation Plan Sheet Modern Roundabout Int.(Otten Street & Kings Highway, 1 Sheet) 15. Roadway Demolition Plan Sheet Oval Medians & Speed Table (Otten Street & Greenlea Drive, Double Pass, 1 Sheet) 16. Roadway Construction/Utility Adjustment Plan Sheet Oval Medians & Speed Table (Otten Street & Greenlea Drive, Double Pass, 1 Sheet) 17. Roadway Geometric & Grading Plan Sheet Oval Medians & Speed Table (Otten Street & Greenlea Drive, Double Pass, 1 Sheet) 18. Roadway Signing & Pavement Marking Plan Sheet Oval Medians & Speed Table (Otten Street & Greenlea Drive, Double Pass, 1 Sheet) 19. Roadway Landscape Plan Sheet Oval Medians & Speed Table (Otten Street & Greenlea Drive, Double Pass, 1 Sheet) 20. Roadway Irrigation Plan Sheet Oval Medians & Speed Table (Otten Street & Greenlea Drive, Double Pass, 1 Sheet) 21. Roadway Demolition Plan Sheet Small Roundabout Int. (Greenlea Drive & Sharondale Drive, 1 Sheet) 22. Roadway Construction Plan Sheet Small Roundabout Int. (Greenlea Drive & Sharondale Drive, 1 Sheet ) 23. Roadway Geometric & Grading Plan Sheet Small Roundabout Int. (Greenlea Drive & Sharondale Drive, 1 Sheet) 24. Roadway Utility Adjustment Plan Sheet Small Roundabout Int. (Greenlea Drive & Sharondale Drive, 1 Sheet) 25. Roadway Signing & Pavement Marking Plan Sheet Small Roundabout Int. (Greenlea Drive & Sharondale Drive, 1 Sheet) 26. Roadway Irrigation Plan Sheet Small Roundabout Int. (Greenlea Drive & Sharondale Drive, 1 Sheet) 27. Roadway Demolition Plan Sheet Small Roundabout Int. (Greenlea Drive & Ridgeway Drive, 1 Sheet) 28. Roadway Construction Plan Sheet Small Roundabout Int. (Greenlea Drive & Ridgeway Drive, 1 Sheet ) 29. Roadway Geometric & Grading Plan Sheet Small Roundabout Int. (Greenlea Drive & Ridgeway Drive, 1 Sheet) 30. Roadway Utility Adjustment Plan Sheet Small Roundabout Int. (Greenlea Drive & Ridgeway Drive, 1 Sheet) 31. Roadway Signing & Pavement Marking Plan Sheet Small Roundabout Int. Attachment number 2 Page 5 of 15 5 (Greenlea Drive & Ridgeway Drive, 1 Sheet) 32. Roadway Irrigation Plan Sheet Small Roundabout Int. (Greenlea Drive & Ridgeway Drive, 1 Sheet) 33. Roadway Demolition Plan Sheet Small Roundabout Int. (Greenlea Drive & Murray Avenue, 1 Sheet) 34. Roadway Construction Plan Sheet Small Roundabout Int. (Greenlea Drive & Murray Avenue, 1 Sheet ) 35. Roadway Geometric & Grading Plan Sheet Small Roundabout Int. (Greenlea Drive & Murray Avenue, 1 Sheet) 36. Roadway Utility Adjustment Plan Sheet Small Roundabout Int. (Greenlea Drive & Murray Avenue, 1 Sheet) 37. Roadway Signing & Pavement Marking Plan Sheet Small Roundabout Int. (Greenlea Drive & Murray Avenue, 1 Sheet) 38. Roadway Irrigation Plan Sheet Small Roundabout Int. (Greenlea Drive & Murray Avenue, 1 Sheet) 39. Roadway Demolition Plan Sheet Tree Well Pairs & Tee Intersection Median (Along Greenlea Drive & at Keene Road, Double Pass, 1 Sheet) 40. Roadway Construction/Utility Adjustment Plan Sheet Tree Well Pairs & Tee Intersection Median (Along Greenlea Drive & at Keene Road, Double Pass, 1 Sheet) 41. Roadway Geometric Plan Sheet Tree Well Pairs & Tee Intersection Median (Along Greenlea Drive & at Keene Road, Double Pass, 1 Sheet) 42. Roadway Signing & Pavement Marking Plan Sheet Tree Well Pairs & Tee Intersection Median (Along Greenlea Drive & at Keene Road, Double Pass, 1 Sheet) 43. Roadway Landscape Plan Sheet Tree Well Pairs & Tee Intersection Median (Along Greenlea Drive & Keene Road, Double Pass, 1 Sheet) 44. Roadway Irrigation Plan Sheet Tree Well Pairs & Tee Intersection Median (Along Greenlea Drive & Keene Road, Double Pass, 1 Sheet) 45. Roadway Demolition Plan Sheet Eight (8) Median w/Tree Wells (Sharondale, Bellemeade, Lombardy, Ridgeway and Greenhill Drives, Townsend, Thames and Prince Philip Streets, Double Pass, 2 Sheets) 46. Roadway Construction/Utility Adjustment Plan Sheet Eight (8) Median w/Tree Wells (Sharondale, Bellemeade, Lombardy, Ridgeway and Greenhill Drives, Townsend, Thames and Prince Philip Streets, Double Pass, 2 Sheets) 47. Roadway Geometric Plan Sheet Eight (8) Median w/Tree Wells (Sharondale, Bellemeade, Lombardy, Ridgeway and Greenhill Drives, Townsend, Thames and Prince Philip Streets, Double Pass, 2 Sheets) 48. Roadway Signing & Pavement Marking Plan Sheet Eight (8) Median w/Tree Wells (Sharondale, Bellemeade, Lombardy, Ridgeway and Greenhill Drives, Townsend, Thames and Prince Philip Streets, Double Pass, 2 Sheets) 49. Roadway Landscape Plan Sheet Eight (8) Median w/Tree Wells (Sharondale, Bellemeade, Lombardy, Ridgeway and Greenhill Drives, Townsend, Thames and Prince Philip Streets, Double Pass, 2 Sheets) 50. Roadway Irrigation Plan Sheet Eight (8) Median w/Tree Wells (Sharondale, Bellemeade, Lombardy, Ridgeway and Greenhill Drives, Townsend, Thames and Prince Philip Streets, Double Pass, 2 Sheets) Attachment number 2 Page 6 of 15 6 51. Roadway Demolition Plan Sheet One (1) Median w/Tree Wells, Two (2) Medians w/Crosswalks & Median Curves (Bentley Street, Highland & Linwood Int. and along Linwood Drive, Double Pass, 1 Sheet) 52. Roadway Construction Plan Sheet One (1) Median w/Tree Wells, Two (2) Medians w/Crosswalks & Median Curves (Bentley Street, Highland & Linwood Int. and along Linwood Drive, Double Pass, 1 Sheet) 53. Roadway Geometric Plan Sheet One (1) Median w/Tree Wells, Two (2) Medians w/Crosswalks & Median Curves (Bentley Street, Highland & Linwood Int. and along Linwood Drive, Double Pass, 1 Sheet) 54. Roadway Signing & Pavement Marking Plan Sheet One (1) Median w/Tree Wells, Two (2) Medians w/Crosswalks & Median Curves (Bentley Street, Highland & Linwood Int. and along Linwood Drive, Double Pass, 1 Sheet) 55. Roadway Demolition Plan Sheet Two (2) Tee Intersection Medians (Linwood Drive at Sharondale Drive & Murray Avenue, 1 Sheet) 56. Roadway Construction Plan Sheet Two (2) Tee Intersection Medians (Linwood Drive at Sharondale Drive & Murray Avenue, 1 Sheet) 57. Roadway Geometric Plan Sheet Two (2) Tee Intersection Medians (Linwood Drive at Sharondale Drive & Murray Avenue, 1 Sheet) 58. Roadway Signing & Pavement Marking Plan Sheet Two (2) Tee Intersection Medians (Linwood Drive at Sharondale Drive & Murray Avenue, 1 Sheet) 59. Roadway Demolition Plan Sheet Right Turn Slip Lane & Crosswalk Improvements (Sunset Point Road (C.R. 576) & Highland Avenue Intersection, 1 Sheet) 60. Roadway Landscape Plan Sheet (Linwood Drive from Highland Avenue to Murray Avenue, Approx. 28000’, Double Pass, 3 Sheets) 61. Roadway Landscape Plan Sheet (Murray Avenue from Linwood Drive to Sunset Point Road, Approx. 2000’, Double Pass, 2 Sheets) 62. Roadway Landscape Plan Sheet (Lombardy Drive from Greenlea Drive to Sunset Point Road, Approx. 1200’, Double Pass, 1 Sheet) 63. Roadway Landscape Plan Sheet (Greenlea Drive from Sharondale Drive to Murray Avenue Including Three (3) Roundabouts, Approx. 1200’, Double Pass, 1 Sheet) 64. Standard Construction Details 65. Standard Construction Details 66. Standard Construction Details 67. Miscellaneous Roadway Construction Details 68. Pavement Marking Construction Details 69. Miscellaneous Drainage Construction Details 70. Miscellaneous Landscape Construction Details 71. Miscellaneous Landscape Construction Details 72. Miscellaneous Irrigation Construction Details 73. Miscellaneous Irrigation Construction Details The roadway construction plans will be prepared at a scale of 1”=20’ for full size plans. Attachment number 2 Page 7 of 15 7 Associated Design Tasks/Activities 1. Site Visit to Review 60% Utility/Geometrics/Landscape Impacts 2. Intersection Vehicular Turning Movement Analysis, Including Vehicular Turning Movement Summary Table & turning Movement Design Parameters (Format Example to be Provided by The City) 3. 60% Utility Coordination 4. 60% Cost Estimate & Quantities 5. QA/QC 60% Plan Submittal Package 6. 60% Submittal Design Package Preparation 7. 60% Neighborhood Traffic Calming Tech Team Meeting 8. 60% Plan Review Meeting w/City 9. Respond to 60% City Review Comments 10. Project Coordination 60% Phase 11. Site Visit to Review 90% Utility/Geometrics/Landscape Impacts 12. 90% Utility Coordination 13. 90% Cost Estimate & Quantities 14. 90% Specification Package 15. QA/QC 90% Plan Submittal Package 16. 90% Submittal Design Package Preparation 17. 90% Neighborhood Traffic calming Tech Team Meeting 18. 90% Plan Review Meeting w/City 19. Respond to 90% City Review Comments 20. Project Coordination 90% Phase 21. SWFWMD Permit Inquire Exemption Request Package 22. 100% Utility Coordination 23. 100% Cost Estimate & Quantities 24. 100% Specification Package 25. QA/QC 100% Plan Submittal Package 26. 100% Submittal Design Package Preparation 27. 100% Plan Review Meeting w/City 28. 100% Neighborhood Traffic Calming Tech Team Meeting (Optional) 29. Project Coordination 100% Phase 30. Respond to 100% City Review Comments 31. Final Bid Package Submittal Preparation 32. QA/QC Final Bid Package As outlined above these plan sheets will be submitted to the City for review at 60%, 90% and 100% including associated construction cost estimates. The design plans shall be compiled using the City of Clearwater CAD standards, as attached. Attachment number 2 Page 8 of 15 8 IV - BIDDING PHASE The bidding phase services will consist of the following activities: 1. Pre-Bid meeting attendance and assistance with preparing meeting agenda. 2. Respond to Bidding inquiries. 3. Preparing addendums. 4. Reviewing bid tabulations V - CONSTRUCTION PHASE Limited construction administration services will consist of the following activities: 1. Pre-Construction meeting attendance. 2. Shop drawing reviews. 3. Bi-weekly progress meetings and site meeting (10 month construction period estimated) 4. Respond to Contractor RFI’s and plan modification. 5. Miscellaneous site visits (6 estimated) 6. Roundabout construction survey verification (5 days estimated “as needed”) 7. Project close out activities. 8. Project coordination construction phase. VI - OPTIONAL SERVICES An independent peer review prior to each submittal will be performed by Alternate Street Design, P.A. Determine Storm Water Spread at Tree Well Bulb-outs (Townsend St., Thames St., Prince Phillip St., Bentley St., Greenlea St., Bellemeade St., Ridgeway Dr., and Greenhill Dr.) Ten percent design allowance for as needed for unforeseen services. 3. PROJECT GOALS: The Greenlea-Otten neighborhood is scheduled soon for traffic calming improvements in the year 2011 as part of an overall City neighborhood traffic calming program. As part of the City’s traffic calming program originating in 2000, the Greenlea-Otten neighborhood participated in a series of traffic calming design charrette workshops that produced a neighborhood traffic calming conceptual design plan that was envisioned by the workshop participants and approved by a super majority of neighborhood property owners. The project goals are to implement by design and construction the Greenlea-Otten neighborhood’s vision of traffic calming from their conceptual thoughts to actual roadway treatment devices that will physically and psychologically alter human behavior enough to calm traffic within their neighborhood. Included in the process will be neighborhood technical review committee meetings at 30/60/90/100% (optional) construction plan design Attachment number 2 Page 9 of 15 9 phases structured to allow for input, feedback and importantly to confirm that the engineering design plans are following the intent of the neighborhood’s conceptual plan. 4. BUDGET: This price includes all labor and expenses anticipated to be incurred by Sam Schwartz Engineering for the completion of these tasks, on a lump sum basis, for a basic services fee of Two Hundred and Ninety Eight Thousand Four Hundred and Twelve Dollars and Twenty Nine Cents ($298,412.29). Additionally, Optional Services in the amount of Forty Six Thousand One Hundred and Fifty Five and Seventy One Cents ($46,155.71) are available if needed and must be authorized by the City. The work order total cost is Three Hundred Forty Four Thousand Five Hundred Sixty Eight Dollars and Zero Cents ($344,568.00). 5. SCHEDULE: The project schedule is based upon utilizing the topographic survey that was collected back in 2001 and supplement the topographical survey as needed during the design phases. To prepare construction design plans and obtain project permits for the neighborhood traffic calming improvements will require approximately three hundred and nine (309) calendar days to complete from issuance of notice-to-proceed. The project deliverables are to be phased as follows: 30% construction plans 90 calendar days City review of 30% construction plans 14 calendar days 60% construction plans 60 calendar days City review of 60% construction plans 21 calendar days 90% construction plans/Permitting Phase 45 calendar days City review of 90% construction plans 21 calendar days 100% construction documents 30 calendar days City review of 100% construction plans 14 calendar days Final construction documents 14 calendar days 6. STAFF ASSIGNMENT Sam Schwartz Engineering Jeffrey D. Trim, PE, PTOE, Senior Vice President, Principal-in-Charge Gregory S. Trim, PE, Project Manager/Engineer (Engineer of Record) City of Clearwater Ken Sides, PE, PTOE, Project Manager Attachment number 2 Page 10 of 15 10 7. CORRESPONDENCE/REPORTING PROCEDURES: Engineer’s project correspondence shall be directed to Mr. Gregory S. Trim, PE. All City project correspondence shall be directed to Mr. Ken Sides, PE, PTOE with copies to others as may be appropriate. 8. INVOICING/FUNDING PROCEDURES: Invoices shall be submitted monthly to the City of Clearwater, Engineering Department, Attn: Ms. Veronica Josef, P.O. Box 4748, Clearwater, Florida 33758-4748, for work performed. Invoices will be prepared monthly with associated progress report with copies transmitted to Mr. Ken Sides, PE, PTOE. City Invoicing Code: 0315-92259-561200-541-000-0000 9. ENGINEER CERTIFICATION: Sam Schwartz Engineering will certify as a licensed Professional Engineer, registered in accordance with Florida Statute 471 (481), that the above project’s construction plans meet or exceed all applicable design criteria specified by City municipal ordinance, State, and Federal established standards. We understand that it is our responsibility as the project’s Professional Engineer to perform a quality assurance review of these submitted plans to ensure that such plans are free from errors and/or omissions. This certification shall apply equally to any further revision and/or submittal of plans, computations, or other project documents, which we may subsequently tender. 10 SPECIAL CONSIDERATIONS: The City of Clearwater shall be responsible for the following materials and services in support of this Work Order Amendment: 1. Provide existing utility information. 2. Provide topographical survey data files collected in 2001. 3. Conducting Project Kick-off, Pre-bid and Pre-construction meetings. 4. Perform daily construction inspection services. Attachment number 2 Page 11 of 15 11 11 PROJECT ASSUMPTIONS: The above scope and fee were prepared based upon the following assumptions: 1. No permits or coordination with FDOT is anticipated. 2. No geotechnical investigation is anticipated. 3. Limited surveying services are anticipated and outlined above. Should additional effort be required beyond what is estimated that effort will need to be negotiated at that time. 4. Project construction period of 10 months is anticipated. PREPARED BY: APPROVED BY: ________________________ ________________________ Jeffrey D. Trim, PE Michael D. Quillen, PE Principal in Charge City Engineer Sam Schwartz Engineering City of Clearwater December 15, 2009 ________________________ Date Date Attachment number 2 Page 12 of 15 12 ATTACHMENT A CITY OF CLEARWATER GREENLEA-OTTEN NEIGHBORHOOD ROUNDABOUT & INTERSECTION MODIFICATION DESIGN SERVICES PPRROOJJEECCTT BBUUDDGGEETT SAM SCHWARTZ ENGINEERING – BASIC SERVICES Sub consultant Task Description Services Labor Total 1.0 Pre- Design 1.1 Monthly Project Management Plan/Start-up Activities $5,521.56 1.2 City Depts./Sub Consultant Coordination $2,467.08 1.3 Project Kick-off Meeting $1,602.00 $9,590.64 2.0 Design Data Collection 2.1 Survey Data Collection $5,000.00 $1,922.40 $6,922.40 3.0 Final Design Plans 3.1 30% Construction Plans & Design Tasks $36,755.22 3.2 60/90/100/Final Construction Plans & Design Tasks $10,000.00 $166,495.86 $213,251.08 4.0 Bidding Phase 4.1 Pre-Bid Meeting $640.80 4.2 Bidding Inquires $1,527.24 4.3 Addenda $3,364.20 4.4 Review Bid Tabulations $1,022.61 $6,554.85 5.0 Construction Phase 5.1 Pre-Construction Meeting $961.20 5.2 Shop Drawing Reviews $6,002.16 5.3 Bi-weekly Progress Meetings $17,504.52 5.4 RFI’s & Plan Modifications $10,968.36 5.5 Site Visits $6,215.76 5.6 Roundabout Construction Survey Verification $5,000.00 $1,772.88 5.7 Project Closeout $1,847.64 5.8 Project Management/Coordination $11,320.80 $61,593.32 Subtotal Basic Services $20,000.00 $277,912.29 $297,912.29 Other Direct Costs (Copies) $500.00 Grand Total Basic Services $298,412.29 Attachment number 2 Page 13 of 15 13 SAM SCHWARTZ ENGINEERING –OPTIONAL SERVICES Sub consultant Task Description Services Labor Total 1.0 Pre- Design Task Allowance (10%) $959.06 $959.06 2.0 Design Data Collection Task Allowance (10%) $500.00 $192.24 $692.24 3.0 Final Design Plans Alternate Street Design Peer Review $9,430.00 Storm Water Spread Analysis $5,446.80 Task Allowance (10%) $1,943.00 $20,869.79 $37,689.59 4.0 Bidding Phase Task Allowance (10%) $655.49 $655.49 5.0 Construction Phase Task Allowance (10%) $500.00 $5,659.33 $6,159.33 Subtotal Optional Services $12,373.00 $33,782.71 $46,155.71 Subtotal Basic Services $298,412.29 Grand Total $344,568.00 Attachment number 2 Page 14 of 15 14 CITY OF CLEARWATER PUBLIC WORKS ADMINISTRATION WORK ORDER INITIATION FORM Attachment “A” CITY DELIVERABLES FORMAT The design plans shall be compiled utilizing one of the following two methods. 1. City of Clearwater CAD standards. 2. Pinellas County CAD standards 3. Datum: Horizontal and Vertical datum shall be referenced to North American Vertical Datum of 1988 (vertical) and North American Datum of 1983/90 (horizontal). The unit of measurement shall be the United States Foot. Any deviation from this datum will not be accepted unless reviewed by City of Clearwater Engineering/Geographic Technology Division. DELIVERABLES The design plans shall be produced on vellum or bond material, 24" x 36" at a scale of 1" = 20’ unless approved otherwise. Upon completion the consultant shall deliver all drawing files in digital format with all project data in Land Desktop 2000 or later including all associated dependent files. NOTE: If approved deviation from Clearwater or Pinellas County CAD standards are used the consultant shall include all necessary information to aid in manipulating the drawings including either PCP, CTB file or pen schedule for plotting. The drawing file shall include only authorized fonts, shapes, line types or other attributes contained in the standard AutoDesk, Inc. release. All block references and references contained within the drawing file shall be included. Please address any questions regarding format to Mr. Tom Mahony, at (727) 562-4762 or email address tom.mahony@clearwater- fl.com All electronic files must be delivered upon completion of project or with 100% plan submittal to City of Clearwater. Attachment number 2 Page 15 of 15 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Award a contract to BRW Contracting, Inc. of Land-O-Lakes, Florida for the construction of the Overlea Street and Stevenson Drive Gravity Sewer Improvements Project in the amount of $431,174.81, which is the lowest responsible bid in accordance with plans and specifications, and authorize the appropriate officials to execute same. (consent) SUMMARY: The City of Clearwater Public Utilities/Wastewater Collection Department initiated this project to improve conditions on Overlea Street where a force main conveys raw sewerage from Lift Station 4 to Lift Station 23. Repairs have been required on this pressure pipe numerous times over the recent years, and it has been determined that the force main is old and in need of replacement. The project was competitively bid, and BRW Contracting, Inc. was the lowest responsive bidder for a proposed fee of $431,174.81. Construction, Engineering, and Inspection (CEI) services during the construction period will be completed by the City’s Engineering Department, which includes daily on-site construction inspection, engineering assistance with onsite observations and interpretations, review of shop drawings, attending meetings, and providing record drawings. The contract period for construction is 200 consecutive calendar days estimated to start in February 2010 and finish in August 2010. The Public Utilities Department shall own and maintain the proposed improvements included in this contract. Sufficient budget and revenue are available with 2009 Water and Sewer Revenue Bond proceeds in projects 0376-96665, Sanitary Sewer R and R in the amount of $400,119.50 and 376-96742, Line Relocation Capitalized in the amount of $4,751.56. Also sufficient budget and revenue is available in Capital Improvement Program (CIP) project 0315-96124, Storm Pipe System Improvement in the amount of $26,303.75 for a total funding of $431.174.81. Type:Capital expenditure Current Year Budget?:Yes Budget Adjustment:No Budget Adjustment Comments: none Current Year Cost:$431,174.81 Annual Operating Cost: Not to Exceed:$431,174.81 Total Cost:$431,174.81 For Fiscal Year:2009 to 2010 Appropriation Code Amount Appropriation Comment 0376-96665-563800-535-000- 0000 $400,119.50 see summary section 0376-96742-563800-533-000- 0000 $4,751.56see summary section 0315-96124-563700-539-000- 0000 $26,303.75 see summary section Cover Memo Bid Required?:Yes Bid Number:03-0037-UT Other Bid / Contract:Bid Exceptions:None Review Approval: 1) Financial Services 2) Office of Management and Budget 3) Legal 4) Clerk 5) Assistant City Manager 6) Clerk 7) City Manager 8) Clerk Cover Memo LOCATION MAP PROJECTLOCATION OVERLEA STREET & STEVENSON DRIVE GRAVITY SEWER PROJECT 03-0037-UT ROB MAUE, P. E., PROJECT MANAGER BID OPENING: THURSDAY, 12/17/09 @ 1:30 PM AWARD DATE: THURSDAY, 02/4/10 BID #: CONTRACTOR PRE- APPROVED PRE-BID HELD ON 10/29/09 10% BID BOND TOTAL BASE BID 1 ALL AMERICAN CONCRETE X X X $1,061,914.70 2 BRW CONTRACTING, INC. X X X $ 431,174.81 3 CLARK HUNT CONSTRUCTION X X X $ 677,534.55 4 DALLAS 1 CONSTRUCTION X X NO/BID 5 DAVID NELSON CONSTRUCTION X X NO/BID 6 G A NICHOLS X X NO/BID 7 KIMMINS CONTRACTING CORP. X X X $ 699,297.50 8 MARLON DUN CONTRACTING X X X $ 563,938.49 9 MTM CONTRACTORS X X X $ 643,322.90 10 POSPIECH CONTRACTING X X X $ 658,564.50 11 ROWLAND, INC. X X X $ 587,165.81 12 SUNCOAST DEV. OF PINELLAS CTY X X X $ 741,710.75 BID RESULTS: 1. BRW CONTRACTING, INC. $431,174.81 APPARENT LOW BID 2. MARLON DUNN CONTRACTING $563,938.49 2ND LOW BID 3. ROWLAND, INC. $587,165.81 3RD LOW BID BID ITEMS QTY UNITUNIT PRICEAMOUNT UNIT PRICEAMOUNTUNIT PRICEAMOUNT UNIT PRICEAMOUNTUNIT PRICEAMOUNT UNIT PRICEAMOUNTUNIT PRICEAMOUNTUNIT PRICEAMOUNTUNIT PRICEAMOUNT SANITARY SEWER 1 Mobilization/Demobilization 1LS 45,000.00$ 45,000.00$ 9,000.00$ 9,000.00$ 21,476.00$ 21,476.00$ 32,000.00$ 32,000.00$ 32,500.00$ 32,500.00$ 24,844.00$ 24,844.00$ 50,000.00$ 50,000.00$ 26,975.00$ 26,975.00$ 34,000.00$ 34,000.00$ 2Maintenance of Traffic1LS 45,000.00$ 45,000.00$ 12,000.00$ 12,000.00$ 11,454.00$ 11,454.00$ 18,000.00$ 18,000.00$ 21,500.00$ 21,500.00$ 24,750.00$ 24,750.00$ 25,000.00$ 25,000.00$ 9,550.00$ 9,550.00$ 30,000.00$ 30,000.00$ 3Erosion Control1LS 25,000.00$ 25,000.00$ 4,600.00$ 4,600.00$ 8,412.00$ 8,412.00$ 4,000.00$ 4,000.00$ 9,827.00$ 9,827.00$ 7,550.00$ 7,550.00$ 5,000.00$ 5,000.00$ 2,175.00$ 2,175.00$ 2,500.00$ 2,500.00$ 4Root Pruning950LF 4.00$ 3,800.00$ 6.00$ 5,700.00$ 10.60$ 10,070.00$ 2.00$ 1,900.00$ 3.00$ 2,850.00$ 5.50$ 5,225.00$ 2.00$ 1,900.00$ 8.50$ 8,075.00$ 6.00$ 5,700.00$ 5Tree Barricades1LS 4,000.00$ 4,000.00$ 2,600.00$ 2,600.00$ 1,614.00$ 1,614.00$ 2,200.00$ 2,200.00$ 4,500.00$ 4,500.00$ 6,250.00$ 6,250.00$ 2,500.00$ 2,500.00$ 525.00$ 525.00$ 1,500.00$ 1,500.00$ 64" PVC Pipe by Open Cut1,270LF 75.00$ 95,250.00$ 9.00$ 11,430.00$ 38.60$ 49,022.00$ 63.00$ 80,010.00$ 32.80$ 41,656.00$ 51.25$ 65,087.50$ 47.00$ 59,690.00$ 47.00$ 59,690.00$ 64.50$ 81,915.00$ 76" DIP Pipe by Open Cut45LF 120.00$ 5,400.00$ 42.00$ 1,890.00$ 72.00$ 3,240.00$ 81.00$ 3,645.00$ 38.15$ 1,716.75$ 85.00$ 3,825.00$ 75.00$ 3,375.00$ 98.25$ 4,421.25$ 85.00$ 3,825.00$ 88" PVC Pipe by Open Cut1,630LF 160.00$ 260,800.00$ 42.00$ 68,460.00$ 76.90$ 125,347.00$ 71.00$ 115,730.00$ 52.76$ 85,998.80$ 54.75$ 89,242.50$ 56.00$ 91,280.00$ 54.50$ 88,835.00$ 62.50$ 101,875.00$ 9 8" DIP Pipe by Open Cut 955LF 125.00$ 119,375.00$ 45.00$ 42,975.00$ 114.70$ 109,538.50$ 107.00$ 102,185.00$ 83.31$ 79,561.05$ 80.75$ 77,116.25$ 88.00$ 84,040.00$ 82.25$ 78,548.75$ 92.50$ 88,337.50$ 10 10" PVC Pipe by Open Cut 1,525LF 110.00$ 167,750.00$ 19.00$ 28,975.00$ 70.40$ 107,360.00$ 77.00$ 117,425.00$ 54.37$ 82,914.25$ 58.75$ 89,593.75$ 65.00$ 99,125.00$ 80.94$ 123,433.50$ 67.50$ 102,937.50$ 111-" DIP Pipe by Open Cut20LF 270.00$ 5,400.00$ 48.00$ 960.00$ 123.10$ 2,462.00$ 63.00$ 1,260.00$ 89.23$ 1,784.60$ 135.00$ 2,700.00$ 130.00$ 2,600.00$ 82.88$ 1,657.60$ 95.00$ 1,900.00$ 12New Sanitary Manhole17EA 3,400.00$ 57,800.00$ 8,200.00$ 139,400.00$ 3,129.00$ 53,193.00$ 3,700.00$ 62,900.00$ 2,824.00$ 48,008.00$ 4,565.00$ 77,605.00$ 4,500.00$ 76,500.00$ 2,775.00$ 47,175.00$ 6,600.00$ 112,200.00$ 13 Conflict Structure (BID ITEM DELETED)0EA -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ 14Flowable Fill for Sanitary Sewer Pipe1,890CF 9.00$ 17,010.00$ 1.10$ 2,079.00$ 18.70$ 35,343.00$ 9.00$ 17,010.00$ 8.33$ 15,743.70$ 7.50$ 14,175.00$ 7.00$ 13,230.00$ 5.15$ 9,733.50$ 6.75$ 12,757.50$ 15Concrete for Sanitary Sewer Manholes240CF 11.00$ 2,640.00$ 7.40$ 1,776.00$ 11.30$ 2,712.00$ 5.00$ 1,200.00$ 20.00$ 4,800.00$ 8.50$ 2,040.00$ 7.00$ 1,680.00$ 5.50$ 1,320.00$ 7.50$ 1,800.00$ 16Lift Station Demolition1LS 20,000.00$ 20,000.00$ 8,500.00$ 8,500.00$ 7,520.00$ 7,520.00$ 12,000.00$ 12,000.00$ 9,850.00$ 9,850.00$ 25,575.00$ 25,575.00$ 4,500.00$ 4,500.00$ 14,725.00$ 14,725.00$ 25,000.00$ 25,000.00$ ConcreteDrivewayReplacementasDirectedby SUNCOAST DEV.KIMMINS CONTRACTINGMARLON DUNN MTM CONTRACTORSPOSPIECH CONTRACTINGROWLAND, INC. OVERLEA STREET & STEVENSON DRIVE GRAVITY SEWER PROJECT #03-0037-UT BID OPENING - DECEMBER 17, 2009 AWARD - THURSDAY, JANUARY 15, 2010 ALL AMERICAN CONCRETE BRW CONTRACTINGCLARK HUNT 17 Concrete Driveway Replacement as Directed by Owner's Representative 100SY 50.00$ 5,000.00$ 54.00$ 5,400.00$ 41.00$ 4,100.00$ 51.00$ 5,100.00$ 45.00$ 4,500.00$ 48.00$ 4,800.00$ 55.00$ 5,500.00$ 46.00$ 4,600.00$ 54.00$ 5,400.00$ 18 Concrete Sidewalk Replacement as Directed by the Owner's Representative 100SY 32.00$ 3,200.00$ 36.00$ 3,600.00$ 31.00$ 3,100.00$ 40.00$ 4,000.00$ 33.00$ 3,300.00$ 37.00$ 3,700.00$ 50.00$ 5,000.00$ 29.75$ 2,975.00$ 46.00$ 4,600.00$ 19 Concrete Curb Replacement as Directed by the Owner's Representative 100LF 28.00$ 2,800.00$ 12.00$ 1,200.00$ 16.00$ 1,600.00$ 24.00$ 2,400.00$ 22.00$ 2,200.00$ 21.00$ 2,100.00$ 32.00$ 3,200.00$ 11.50$ 1,150.00$ 24.00$ 2,400.00$ 20 Asphalt Road Replacement as Directed by the Owner's Representative 100SY 38.00$ 3,800.00$ 36.00$ 3,600.00$ 46.90$ 4,690.00$ 51.00$ 5,100.00$ 41.00$ 4,100.00$ 35.00$ 3,500.00$ 75.00$ 7,500.00$ 51.50$ 5,150.00$ 48.00$ 4,800.00$ 21 Asphalt Overlay as Directed by the Owner's Representative 100SY 16.00$ 1,600.00$ 8.00$ 800.00$ 58.90$ 5,890.00$ 22.00$ 2,200.00$ 14.00$ 1,400.00$ 32.00$ 3,200.00$ 25.00$ 2,500.00$ 63.50$ 6,350.00$ 15.00$ 1,500.00$ 22Unsuitable Material Excavation Below Grade200CY 25.00$ 5,000.00$ 6.00$ 1,200.00$ 13.00$ 2,600.00$ 8.50$ 1,700.00$ 18.00$ 3,600.00$ 25.00$ 5,000.00$ 16.00$ 3,200.00$ 10.80$ 2,160.00$ 25.00$ 5,000.00$ 23Select Backfill Below Grade200CY 15.00$ 3,000.00$ 14.00$ 2,800.00$ 17.00$ 3,400.00$ 19.00$ 3,800.00$ 18.00$ 3,600.00$ 18.00$ 3,600.00$ 15.00$ 3,000.00$ 12.25$ 2,450.00$ 12.00$ 2,400.00$ 24Tree Removal4EA 1,400.00$ 5,600.00$ 1,200.00$ 4,800.00$ 463.00$ 1,852.00$ 620.00$ 2,480.00$ 1,000.00$ 4,000.00$ 1,250.00$ 5,000.00$ 1,500.00$ 6,000.00$ 560.00$ 2,240.00$ 700.00$ 2,800.00$ 904,225.00$ 363,745.00$ 575,995.50$ 598,245.00$ 469,910.15$ 546,479.00$ 556,320.00$ 503,914.60$ 635,147.50$ 25Owner's Contigency (10% Subtotal)1LS 90,422.50$ 90,422.50$ 36,374.50$ 36,374.50$ 57,599.55$ 57,599.55$ 59,824.50$ 59,824.50$ 46,991.02$ 46,991.02$ 54,647.90$ 54,647.90$ 55,632.00$ 55,632.00$ 50,391.46$ 50,391.46$ 63,514.75$ 63,514.75$ 994,647.50$ 400,119.50$ 633,595.05$ 658,069.50$ 516,901.17$ 601,126.90$ 611,952.00$ 554,306.06$ 698,662.25$ 34Relocate Existing 4" Water Main20LF 195.00$ 3,900.00$ 58.38$ 1,167.60$ 96.00$ 1,920.00$ 80.00$ 1,600.00$ 168.40$ 3,368.00$ 95.00$ 1,900.00$ 70.00$ 1,400.00$ 104.00$ 2,080.00$ 42.00$ 840.00$ 35Relocate Existing 6" Water Main40LF 215.00$ 8,600.00$ 78.80$ 3,152.00$ 116.00$ 4,640.00$ 92.00$ 3,680.00$ 180.08$ 7,203.20$ 125.00$ 5,000.00$ 75.00$ 3,000.00$ 111.50$ 4,460.00$ 54.00$ 2,160.00$ 12,500.00$ 4,319.60$ 6,560.00$ 5,280.00$ 10,571.20$ 6,900.00$ 4,400.00$ 6,540.00$ 3,000.00$ 36Owner's Contigency (10% Subtotal)1LS 1,250.00$ 1,250.00$ 431.96$ 431.96$ 656.00$ 656.00$ 528.00$ 528.00$ 1,057.12$ 1,057.12$ 690.00$ 690.00$ 440.00$ 440.00$ 654.00$ 654.00$ 300.00$ 300.00$ 13,750.00$ 4,751.56$ 7,216.00$ 5,808.00$ 11,628.32$ 7,590.00$ 4,840.00$ 7,194.00$ 3,300.00$ 916,725.00$ 368,064.60$ 582,555.50$ 603,525.00$ 480,481.35$ 553,379.00$ 560,720.00$ 510,454.60$ 638,147.50$ 91,672.50$ 36,806.46$ 58,255.55$ 60,352.50$ 48,048.14$ 55,337.90$ 56,072.00$ 51,045.46$ 63,814.75$ 1,008,397.50$ 404,871.06$ 640,811.05$ 663,877.50$ 528,529.49$ 608,716.90$ 616,792.00$ 561,500.06$ 701,962.25$ 1,008,397.50$ 404,871.06$ 640,811.05$ 663,877.50$ 528,529.49$ 608,716.90$ 616,792.00$ 561,500.06$ 701,962.25$ SUB-TOTAL UTILITIES (ITEMS 1-23 & 34-35) = TOTAL 10% CONTINGENCY (ITEMS 24 & 36) = TOTAL UTILITIES (ITEMS 1-25 & 34-36) = POTABLE WATER STORMWATER TOTAL UTILITIES (ITEMS 1-25 & 34-36) SANITARY SEWER SUBTOTAL (ITEMS 1-23) = TOTAL SANITARY SEWER (ITEMS 1-24) = SUB-TOTAL WATER (ITEMS 34-35) = TOTAL WATER (ITEMS 34-36) = 26 12" PVC Storm Sewer Pipe 150LF 89.88$ 13,482.00$ 18.85$ 2,827.50$ 44.00$ 6,600.00$ 30.00$ 4,500.00$ 54.00$ 8,100.00$ 32.00$ 4,800.00$ 65.00$ 9,750.00$ 26.25$ 3,937.50$ 36.00$ 5,400.00$ 27 16" DIP Storm Sewer Pipe 70LF 175.00$ 12,250.00$ 51.50$ 3,605.00$ 125.00$ 8,750.00$ 94.00$ 6,580.00$ 104.00$ 7,280.00$ 88.00$ 6,160.00$ 80.00$ 5,600.00$ 91.75$ 6,422.50$ 95.00$ 6,650.00$ 28 6" Underdrain System 160LF 45.00$ 7,200.00$ 24.00$ 3,840.00$ 28.00$ 4,480.00$ 44.00$ 7,040.00$ 27.00$ 4,320.00$ 35.00$ 5,600.00$ 35.00$ 5,600.00$ 22.00$ 3,520.00$ 18.50$ 2,960.00$ 29 Double Wing Storm Drain Inlet 1EA 4,200.00$ 4,200.00$ 4,000.00$ 4,000.00$ 4,125.00$ 4,125.00$ 4,200.00$ 4,200.00$ 4,200.00$ 4,200.00$ 3,875.00$ 3,875.00$ 4,500.00$ 4,500.00$ 2,085.00$ 2,085.00$ 5,900.00$ 5,900.00$ 30 Storm Drainage Manhole 1EA 2,500.00$ 2,500.00$ 3,800.00$ 3,800.00$ 2,139.00$ 2,139.00$ 2,400.00$ 2,400.00$ 2,400.00$ 2,400.00$ 3,160.00$ 3,160.00$ 3,200.00$ 3,200.00$ 1,080.00$ 1,080.00$ 4,500.00$ 4,500.00$ 31 Type-F Wing Inlet 1EA 4,100.00$ 4,100.00$ 4,200.00$ 4,200.00$ 3,601.00$ 3,601.00$ 4,200.00$ 4,200.00$ 2,200.00$ 2,200.00$ 3,560.00$ 3,560.00$ 4,200.00$ 4,200.00$ 2,085.00$ 2,085.00$ 5,600.00$ 5,600.00$ 32 18" Concrete Straight Curb 205LF 24.00$ 4,920.00$ 8.00$ 1,640.00$ 18.00$ 3,690.00$ 16.00$ 3,280.00$ 18.00$ 3,690.00$ 21.00$ 4,305.00$ 25.00$ 5,125.00$ 20.50$ 4,202.50$ 25.00$ 5,125.00$ 48,652.00$ 23,912.50$ 33,385.00$ 32,200.00$ 32,190.00$ 31,460.00$ 37,975.00$ 23,332.50$ 36,135.00$ 33Owner's Contigency (10% Subtotal)1LS 4,865.20$ 4,865.20$ 2,391.25$ 2,391.25$ 3,338.50$ 3,338.50$ 3,220.00$ 3,220.00$ 3,219.00$ 3,219.00$ 3,146.00$ 3,146.00$ 3,797.50$ 3,797.50$ 2,333.25$ 2,333.25$ 3,613.50$ 3,613.50$ 53,517.20$ 26,303.75$ 36,723.50$ 35,420.00$ 35,409.00$ 34,606.00$ 41,772.50$ 25,665.75$ 39,748.50$ 965,377.00$ 391,977.10$ 615,940.50$ 635,725.00$ 512,671.35$ 584,839.00$ 598,695.00$ 533,787.10$ 674,282.50$ 96,537.70$ 39,197.71$ 61,594.05$ 63,572.50$ 51,267.14$ 58,483.90$ 59,869.50$ 53,378.71$ 67,428.25$ 1,061,914.70$ 431,174.81$ 677,534.55$ 699,297.50$ 563,938.49$ 643,322.90$ 658,564.50$ 587,165.81$ 741,710.75$ 10% CONTINGENCY (ITEMS 24,33 & 36) = BASE BID GRAND TOTAL (TEMS 1-36) = TOTAL PROJECT (ITEMS 1-36) SUB-TOTAL STORMWATER (ITEMS 26-32) = TOTAL STORMWATER (ITEMS 26-33) = SUB-TOTAL (ITEMS 1-23, 26-32 & 34-35) = STORMWATER Attachment number 4 Page 1 of 16 Attachment number 4 Page 2 of 16 Attachment number 4 Page 3 of 16 Attachment number 4 Page 4 of 16 Attachment number 4 Page 5 of 16 Attachment number 4 Page 6 of 16 Attachment number 4 Page 7 of 16 Attachment number 4 Page 8 of 16 Attachment number 4 Page 9 of 16 Attachment number 4 Page 10 of 16 Attachment number 4 Page 11 of 16 Attachment number 4 Page 12 of 16 Attachment number 4 Page 13 of 16 Attachment number 4 Page 14 of 16 Attachment number 4 Page 15 of 16 Attachment number 4 Page 16 of 16 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Reappoint Thomas Coates to the Community Development Board with the term to expire February 28, 2014. (consent) SUMMARY: APPOINTMENT WORKSHEET BOARD: Community Development Board TERM: 4 years APPOINTED BY: City Council FINANCIAL DISCLOSURE: Yes RESIDENCY REQUIREMENT: City of Clearwater MEMBERS: 7 & 1 alternate CHAIRPERSON: Nicholas C. Fritsch MEETING DATES: 3rd Tues., 1:00 p.m. PLACE: Council Chambers APPTS. NEEDED: 2 SPECIAL QUALIFICATIONS: Board shall include members qualified and experienced in the fields of architecture, planning, landscape architecture, engineering, construction, planning & land use law and real estate THE FOLLOWING ADVISORY BOARD MEMBER(S) HAVE TERMS WHICH EXPIRE AND NOW REQUIRE EITHER REAPPOINTMENT FOR A NEW TERM OR REPLACEMENT BY A NEW APPOINTEE. 1. Thomas Coates – 335 N. Hillcrest Dr., 33755 – Original Appointment 11/18/2004 (Consultant/Project Manager) Interested in Reappointment: Yes (1st term expires 02/28/2010) (3) Absences in the past year 2. Jordan Behar – 103 Rogers Street, 33756 – Original Appointment 03/16/2006 (Architecture, pursuing licensure) Interested in Reappointment: No (1st term expires 02/28/2010) (2) Absences in the past year THE FOLLOWING NAMES ARE BEING SUBMITTED FOR CONSIDERATION TO FILL THE ABOVE VACANCIES: 1. Michael Boutzoukas – 2433 Bond Ave., 33759 – Attorney (Currently serving on the MCEB) 2. Norma R. Carlough – 1756 Ashton Abbey Rd., 33755 – Ret. Business Management (CDB Alternate member) – Orig. appointment 11/01/07 3. Sheila Cole – 252 Dolphin Point, 33767 – Exec. Director (Currently serving on the MCEB) 4. Robert P. Fernandez – 301 N. Hillcrest Drive, 33755 – Retired/Retail Development (Currently serving on the EZDA) 5. John Funk – 521 Mandalay Ave., #402, 33767 – Real Estate Broker 6. Rita Garvey – 1550 Ridgewood St., 33755 – RetiredVolunteer/Activist 7. Kurt B. Hinrichs, P.E. – 1029 Charles St., 33755 – Civil Engineer/Builder (Currently serving on the MCEB) 8. David L. Jaye – 2856 Shady Oak Ct., 33761 – Real Estate (Currently serving on the Brownfields) 9. Bob Luna – 774 Snug Island, Island Estates, 33767 – Mortgage & Real Cover Memo Estate 10. Gro Miller – 1724 Thomas Dr., 33759 – Real Estate Broker 11. Mary Morrow – 2881 Deer Run S., 33761 – Senior Assoc/Bachelor Political Science (Currently serving on the EAB) 12. Raymond L. Toohey – 1729 Harbor Dr., 33755 – Sr. Mechanical Eng. 13. Donald Van Weezel – 1290 Gulf Blvd., #1408, 33767 – Consultant/BA Econ. & Business Zip codes of current members: 2 at 33755, 2 at 33756, 1 at 33761, 1 at 33764 and 2 at 33767 Current Categories: 1 Architect 1 Architecture, pursuing licensure 1 Civil Engineer 1 Consultant/Project Manager 1 Contractor & Mech. Eng 1 Retired Business Mgt. 1 Retired (Economics) 1 Self Employed: Investor, Yacht Broker - BS Finance & Marketing Review Approval:1) Clerk Cover Memo Attachment number 1 Page 1 of 2 Attachment number 1 Page 2 of 2 Attachment number 2 Page 1 of 3 Attachment number 2 Page 2 of 3 Attachment number 2 Page 3 of 3 Attachment number 3 Page 1 of 2 Attachment number 3 Page 2 of 2 Attachment number 4 Page 1 of 2 Attachment number 4 Page 2 of 2 Attachment number 5 Page 1 of 2 Attachment number 5 Page 2 of 2 Attachment number 6 Page 1 of 2 Attachment number 6 Page 2 of 2 Attachment number 7 Page 1 of 2 Attachment number 7 Page 2 of 2 Attachment number 8 Page 1 of 2 Attachment number 8 Page 2 of 2 Attachment number 9 Page 1 of 2 Attachment number 9 Page 2 of 2 Attachment number 10 Page 1 of 2 Attachment number 10 Page 2 of 2 Attachment number 11 Page 1 of 2 Attachment number 11 Page 2 of 2 Attachment number 12 Page 1 of 2 Attachment number 12 Page 2 of 2 Attachment number 13 Page 1 of 2 Attachment number 13 Page 2 of 2 s s k J v Jk J v Attachment number 14 Page 1 of 2 s c s v Attachment number 14 Page 2 of 2 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Appoint Judith B. Powers to the Public Art and Design Advisory Board as the Pinellas County Arts Council representative with the term to expire February 28, 2014. (consent) SUMMARY: APPOINTMENT WORKSHEET BOARD: Public Art and Design Advisory Board TERM: 4 years APPOINTED BY: City Council FINANCIAL DISCLOSURE: Not Required RESIDENCY REQUIREMENT: City of Clearwater resident except for the Clearwater Arts Foundation and the Pinellas County Arts Council representatives MEMBERS: 7 Liaison: Parks & Recreation CHAIRPERSON: Joshua Bomstein MEETING DATE: Quarterly TIME/PLACE: Long Center APPOINTMENTS NEEDED: 1 THE FOLLOWING ADVISORY BOARD MEMBER(S) HAVE TERMS WHICH EXPIRE AND NOW REQUIRE REAPPOINTMENT FOR A NEW TERM OR REPLACEMENT BY A NEW APPOINTEE. 1. Mark Flickinger - 2912 11th St. N. - St. Petersburg, FL 33704 Original Appointment: 04/06/06 Resigned 12/23/09 - (was serving 2nd term until 03/31/2012) (Pinellas County Arts Council) THE FOLLOWING NAME IS BEING SUBMITTED FOR CONSIDERATION TO FILL THE ABOVE VACANCY: 1. Judith B. Powers – 4721 16th Ave. N., St. Petersburg, FL 33713 – Dir. Cultural Affairs Pinellas County/Cultural Affairs: 12520 Ulmerton Rd., Largo, FL 33774 (Pinellas County Arts Council) 2. Robert J. Entel, M.D. – 521 Mandalay Ave. #902, Clearwater, FL 33767– Physician Raidiology Associates of Clearwater No other applications on file to fill the two resignations below at this time: Sarah C. Butz - 2839 Anderson Dr. N., 33761 - Original Appointment: 04/03/08 Resigned 11/09 - Moved out of Clearwater (was serving 1st term until 03/31/2012)(Artist) George Ann Bissett - 2173 Centerview Court N., 33759 - Original Appointment 04/06/06 Office: DFAC, 1143 Michigan Blvd., Dunedin, FL 34698 Resigned 01/13/2010 - Moving out of Clearwater (was serving 1st term until 03/31/2010) (Citizen) Zip codes of current members: 2 – 33755, 1 – 33761, 1 - 33764 Cover Memo Current Categories: 1 Architect 2 Citizens 1 Clearwater Arts Foundation Review Approval:1) Clerk Cover Memo Attachment number 1 Page 1 of 3 Attachment number 1 Page 2 of 3 J k J z J J J c J J J c J Attachment number 2 Page 1 of 2 s s J J v J z v J J J Attachment number 2 Page 2 of 2 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Amend Chapter 33, Code of Ordinances, to be consistent with recent changes in Florida Statutes prohibiting city authorities from regulating the anchoring of vessels outside of mooring fields, and to clarify the types of vessels that may use city-owned docking facilities to be consistent with the City Charter and pass Ordinance 8146-10 on first reading. SUMMARY: Portions of recently adopted legislation contained in Florida House Bill 1423 clarified the extent that a municipality can regulate vessel operation within its waterways. City authorities are prohibited from regulating the anchoring of vessels, other than live- aboard vessels, outside the marked boundaries of mooring fields as provided in Florida Statutes. Live-aboard vessel means any vessel used solely as a residence and not for navigation; represented as a place of business, or a professional or other commercial enterprise; or which a declaration of domicile has been filed pursuant to section 222.17, Florida Statutes. The city has been asked if it will allow the licensing of the downtown boat slips for recreational vessels which will be leased, rented or chartered to people for the noncommercial use of such vessels. Florida Statute defines recreational vessels as vessels manufactured and used primarily for noncommercial purposes or leased, rented or chartered to a person for the person’s noncommercial use. Use of the Downtown boats slips is limited by the City Charter and Clearwater Code of Ordinances. The relevant city charter provision section 2.01 (D.) (6), states in pertinent part: Notwithstanding any provision of this section to the contrary, city-owned public docks, promenade, side tie moorings and not more than 140 dedicated boat slips for recreational noncommercial vessels... may be constructed, operated and maintained.... City may permit ferries, water taxis, excursion boats and similar uses to access the docks for drop-off and pickup of passengers only.... No boat launching ramps, fueling facilities, ticket booths or parking garage shall be permitted. Neither the city charter nor the City Code currently defines “recreational noncommercial vessels.” Using the definitions of the terms “commercial vessel” and “recreational vessel,” as defined by Florida statutes, these terms are added to Chapter 33 of the Clearwater Code by the proposed ordinance so that the Code coincides with the City Charter. So long as vessels are registered, insured, and utilized as “recreational vessels,” the aforementioned charter provision would not preclude the renting of vessels from city owned docks for this purpose. With the additional definitions and modifications proposed by this ordinance, the city code will be in-line with the charter. Direction is also sought from council to respond to developers who have requested dock permits at the downtown location as incentives to prospective condo owners with boats. Review Approval:1) Legal 2) Clerk 3) Assistant City Manager ED 4) Clerk 5) City Manager 6) Clerk Cover Memo Ordinance No. 8146-10 ORDINANCE NO. 8146-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, DELETING PROVISIONS OF CHAPTER 33, WATERWAYS AND VESSELS, CLEARWATER CODE OF ORDINANCES, REGULATING VESSEL OPERATION WITHIN CITY WATERWAYS THAT ARE PREEMPTED TO THE STATE; TO ADD DEFINITIONS TO CONFORM WITH STATE LAW; AND TO CLARIFY THE TYPES OF VESSELS THAT MAY UTILIZE CITY-OWNED DOCKING FACILITIES SO THAT BOTH CITY CHARTER AND CODE ARE CONSISTENT; PROVIDING AN EFFECTIVE DATE. WHEREAS, Florida House Bill 1423 modifies Chapter 327, Florida Statutes, by limiting the ability of local governments, such as municipalities and counties, to regulate vessel operation within their waterways in many instances; and WHEREAS, the amendments contained herein are for the purpose of bringing the Clearwater Code of Ordinances, Chapter 33, Waterways and Vessels, in conformity with Florida Statutes, and WHEREAS, use of the proposed downtown designated slips is limited by City Charter to recreational, noncommercial vessels, and WHEREAS, neither the City Charter nor the Clearwater Code of Ordinances defines what constitutes a recreational or commercial vessel, and WHEREAS, the amendments contained herein shall amend the Clearwater Code of Ordinances to permit usage of city-owned docking facilities consistent with the City Charter, now therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. That Chapter 33, Waterways and Vessels, Section 33.001 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.001. Municipal Aauthority of city to regulate waterways. The city shall possess all rights permitted by law to regulate the use of all waterways within the city and the conduct of all persons using such waterways, except as otherwise provided by law. Section 2. That Chapter 33, Waterways and Vessels, Section 33.002 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.002. Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Attachment number 1 Page 1 of 19 Ordinance No. 8146-10 2 Abandoned means an unattended vessel which is adrift, discarded, sinking or sunk or any unattended vessel which is totally or partially beached on public or private property without the written consent of the harbormaster or the landowner for a period of 72 hours or longer. City commission council means the city commission council of the City of Clearwater, Florida Commercial vessel means: (a) Any vessel primarily engaged in the taking or landing of saltwater fish or saltwater products or freshwater fish or freshwater products, or any vessel licensed pursuant to Florida Statutes from which commercial quantities of saltwater products are harvested, from within and without the navigable waters for sale either to the consumer, retail dealer, or wholesale dealer. (b) Any other vessel, except a recreational vessel as defined in this section. Derelict vessel means any vessel that is left, stored, or abandoned: (a) In a wrecked, junked, or substantially dismantled condition upon any navigable waters within the city; (b) At any port or mooring facility in this city without the consent of the agency having jurisdiction thereof; or (c) Docked, grounded at, or beached upon the property of another without the consent of the owner of the property. Direct sewage pump-out connection means a connection between a vessel and the city sewer system for the purpose of removing sewage from the holding tank or head on a vessel. Disabled, as used to describe a vessel, means that the vessel is unable to move under its own mechanical power or sail because of a mechanical failure or emergency. Discharge means but is not limited to any spilling, leaking, pumping, pouring, emitting, emptying, or dumping. Dock means as defined by section 8-102 of the Clearwater Community Development Code35.11. Harbormaster means the harbormaster of the city, or the harbormaster's designee or duly appointed substitute or deputy. Hazardous chemicals or substances means the term as defined by state and federal law or regulations. Holding tank means a receptacle on a vessel which is used to contain sewage. Length means the measurement from end to end over the deck parallel to the centerline excluding sheer. Attachment number 1 Page 2 of 19 Ordinance No. 8146-10 3 Live-aboard vessel means: (a) Any vessel used solely as a residence and not for navigation; (b) Any vessel represented as a place of business, or a professional or other commercial enterprise; however, a commercial fishing boat is expressly excluded from the term “live-aboard vessel;” or (c) Any vessel for which a declaration of domicile has been filed pursuant to Florida Statutes Live-aboard vessel means a vessel which is occupied or used by one or more persons as a place of habitation, residence, as living quarters or for dwelling purposes, temporarily or permanently, regardless of whether such person has established another domicile or place of residence. Marina facilities means as defined by section 8-102 of the Clearwater Community Development Code35.11. Marine sanitation device means equipment other than a toilet, for installation on board a vessel, which is designed to receive, retain, treat, or discharge sewage, and any process to treat such sewage.any equipment for installation on board a vessel which is designed to receive, retain, treat, or discharge sewage, and any process to treat such sewage. Mooring means the act of docking, anchoring, intentional grounding, or otherwise securing a vessel such that any portion of the vessel is in the water. Motorboat means any vessel equipped with machinery for propulsion, irrespective of whether the propulsion machinery is in actual operation. Navigable waters means all portions of those waters, up to and including the mean high-water mark, located within the corporate limits of the city, which are of such size and so situated as may be used for purposes common or useful to the public, and shall include all waterways or portions of waterways which are susceptible to being used in their natural and ordinary condition as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. This definition shall not apply to landlocked inland waters to which the general public does not have access or the right of use. Operate means to be in charge of or in command of or in actual physical control of a vessel upon the navigable waters, or to exercise control over or to have responsibility for a vessel's navigation or safety while the vessel is underway upon the navigable waters, or to control or steer a vessel being towed by another vessel upon the navigable waters. Owner means a person, other than a lienholder, having the property in or title to a vessel. The term includes a person entitled to the use or possession of a vessel subject to an interest in another person, reserved or created by agreement and securing payment of performance of an obligation, but the term excludes a lessee under a lease not intended as security. Attachment number 1 Page 3 of 19 Ordinance No. 8146-10 4 Person means an individual, partnership, corporation, or other legal entity. As used in this chapter, the term includes but is not limited to any owner, master, officer, or employee of any vessel. Personal watercraft means a vessel less than 16 feet in length which uses an inboard motor powering a water jet pump, as its primary source of motive power and which is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than in the conventional manner of sitting or standing inside the vessel. Petroleum products means oil, gasoline, diesel fuel, petroleum or chemical compositions of any kind which contain petroleum in any form, including fuel oil, oil sludge, oil or fuel residue, and oil refuse. Recreational vessel means any vessel: (a) Manufactured and used primarily for noncommercial purposes; or (b) Leased, rented, or chartered to a person for the person's noncommercial use. Sewage means human body wastes and the contents and wastes from toilets, marine sanitation devices, and other receptacles designed, intended, or used to receive or retain human body wastes. Sewage pump-out station means a system consisting of a pump, with or without a tank, with sewer transfer lines having an approved connection to the city sewer system, which can be temporarily connected to a vessel for the purpose of removing sewage from the vessel's holding tank or head. Any such system may be either fixed or portable. Vessel is synonymous with boat as referenced in s. 1(b), Art. VII of the State Constitution and includes every description of watercraft, barge, and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water. means any watercraft, boat, barge, or any other contrivance of any description, type, and purpose which is capable of being reasonably used as a means of transportation of or occupied by persons or property upon navigable waters, whether or not powered by any machine or device. Section 3. That Chapter 33, Waterways and Vessels, Section 33.006 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.006. Clearwater Marina building leases. . . . (2) Rental rates. Rental rates shall be generally consistent with the rates for commercial space on Clearwater Beach, and with the rates historically earned by spaces in the marina. Rental rates may include a flat rate, a percentage of gross revenues, or a combination thereof. The rental of a space for a flat rate or a percentage of gross revenues, or combination thereof, less than 100 percent of that paid by the prior lessee shall require the approval of the city commissioncouncil. Attachment number 1 Page 4 of 19 Ordinance No. 8146-10 5 . . . Section 4. That Chapter 33, Waterways and Vessels, Section 33.024 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.024. Permitted uses; division of uses. In designating the use to be made where boat slips and docking spaces are provided, provision shall be made for pleasure vessels and commercial vessels. City-owned or controlled boat slips and docking spaces shall be used only for recreational vessels and commercial vessels. Use of those areas set aside for pleasure recreational vessels shall be limited to wet storage of private recreational, noncommercial vessels and transient cruising vessels of various types. Unless otherwise authorized by the Harbormaster, use of city-owned boat slips or docking spaces shall be limited to one vessel per space. No commercial activity shall be permitted in or from docking spaces designateding for use by private pleasure recreational, noncommercial vessels. Use of those areas set aside for commercial vesselsuse shall be limited to the following types of commercial activities: 1) passenger-carrying or passenger service-oriented, such as, but not limited to vessel known and operated as open party boats, excursion boats, charter boats, and personal watercraft rental and small boats for hire.; or 2) Nnon-passenger-carrying, vessels engaged in commercial fishing, or other similar enterprises as defined within this chapter. may be docked only in spaces specifically designated for that purpose. Section 5. That Chapter 33, Waterways and Vessels, Section 33.029 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.029. Payment of dockage fees. Dockage fees for city-owned dock space assigned to commercial vessels or private pleasure recreational vessels on a month-to-month basis, or other time frame as approved by the city manager, shall be paid monthly in advance. Dockage fees for transient vessels shall be paid daily, weekly or monthly in advance. Section 6. That Chapter 33, Waterways and Vessels, Section 33.052 be amended by deleting the stricken language as follows: Sec. 33.052. Equipment of vessels generally. All vessels within or upon the navigable waters shall at all times have present, accessible, and in good working order all equipment required by state or federal law or regulation. Any vessel which is equipped with a marine toilet or other marine sanitation device shall comply with sanitation device type and performance standards, rules, and regulations stated in 40 CFR 140 or in applicable provisions promulgated by the Coast Guard or the secretary of the department in which the Coast Guard is operating, under the authority of 33 USC section 1322 and such other applicable federal law relating to marine sanitation and pollution control. (Code 1980, § 114.04) Section 7. That Chapter 33, Waterways and Vessels, Section 33.053 be amended by deleting the stricken language as follows: Sec. 33.053. Muffling devices required. Attachment number 1 Page 5 of 19 Ordinance No. 8146-10 6 The exhaust of every internal combustion engine used on any vessel shall be effectively muffled by equipment so constructed and used as to muffle the noise of the exhaust in a reasonable manner. The use of cutouts is prohibited, except for vessels competing in a regatta or official race, and for such vessels while on trial runs. When permitted by this section, the noise level attained through use of cutouts or similar devices shall not be of sufficient volume as to unreasonably disturb or inconvenience the general public or residents of adjacent areas. (Code 1980, § 114.51) Cross references: Traffic and motor vehicles generally, ch. 30. State law references: Similar provisions, F.S. § 327.65. Section 8. That Chapter 33, Waterways and Vessels, Section 33.054 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.0524. Live-aboard vessels and temporary living accommodation permits. (1) Prohibited; exceptions. It shall be unlawful for any person to moor or anchor any live-aboard vessel at any location within or upon the navigable waters in the city for any period of time in excess of 72 hours, except as follows: (a) At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985, for which conditional use approval would otherwise be required; or (b) At a dock or facility at which temporary living accommodation live-aboard activities are not specifically authorized pursuant to the terms of a temporary permit issued to the owner or operator of the vessel by the harbormaster. (2) Temporary permits. The harbormaster shall have the authority to issue a temporary live-aboard living accommodation permit, which permit shall be limited to 15 days, to the owner or operator of a vessel to be moored at a dock or facility at which live-aboard activities temporary living accommodation is are not specifically authorized, upon payment of a permit fee as set out in appendix A to this Code. As conditions precedent to the issuance of a temporary permit, the owner, operator, or person in charge of the vessel shall consent to an inspection by the harbormaster of the vessel's marine sanitation and safety equipment; agree that no more persons will reside on the vessel than it was designed to reasonably accommodate and in no instance shall more persons reside thereon than there are permanent accommodating berths; agree not to place, discharge or deposit, or cause or allow to be placed, discharged or deposited any sewage, trash, garbage, petroleum products, hazardous chemicals or substances, or refuse material of any kind or description into the navigable waters while moored or operating within the city during the period covered by the permit; demonstrate that the written permission of the dock or facility owner to moor the vessel thereto during the period covered by the temporary permit has been obtained; and provide evidence of the availability of toilet facilities for the vessel's occupants while moored. Not more than six temporary living accommodation live-aboard permits may be issued to the owners or operators of the same live-aboard vessel in any 12-month period, and not more than two such permits may be issued in succession for the same vessel. The permit may be revoked at any time by the harbormaster upon a showing of probable cause that a condition precedent to the issuance of the permit has not been met or has been violated after issuance of the permit and, upon such a showing, no additional permit shall be issued to the permit holder or to any person shown to have committed a violation for a period of one year from the date of the violation. Any Attachment number 1 Page 6 of 19 Ordinance No. 8146-10 7 permit granted pursuant to this subsection shall be valid only for the place or facility specified upon the permit and shall be conspicuously posted according to the directions of the harbormaster. Section 9. That Chapter 33, Waterways and Vessels, Section 33.055 be amended by deleting the stricken language as follows: Sec. 33.055. Houseboats. (1) A houseboat is defined as any vessel of any design used as a dwelling, with living accommodations. A private dock is defined as any dock, wharf, pier, slip, seawall, or any other structure abutting any lot zoned for residential use. (2) Except as provided in this section, no houseboat shall be moored to any private dock, wharf, pier, slip, seawall, or other structure abutting any lot zoned for residential use in the waters embraced within the boundaries of the city for more than a 72-hour period. (3) The language of this section shall not be so construed as to prohibit any boat from occupying available space within the waterways of the city during a period of time reasonably necessary for protection of the boat from inclement weather conditions. (4) Any owner of a vessel used as a dwelling with living accommodations or his duly authorized agent who desires to moor a houseboat to any private dock for more than 72 hours shall be required to file and submit a written application for a moorage permit utilizing an application form provided by the harbormaster. Such application shall state that a vessel used as a houseboat meets all current environmental protection agency discharge requirements in effect at the time such application is made and furthermore for the purpose of meeting all current environmental protection agency discharge requirements such vessel shall be inspected by the harbormaster or other appropriate city official. Such application shall further contain the signature of the owner of the lot to which the dock is attached and the signatures of all lots abutting such lot when such vessel is moored to a private dock, which signatures shall indicate on such application form that the property owners have no objection to such moorage for a period of not more than 120 days in any one calendar year. (5) The harbormaster upon submission to him of an application in proper form and meeting the requirements as set forth in subsection (4) of this section and upon payment of any necessary permit fee shall then issue to the owner of such houseboat a permit allowing such vessel to be moored to a private nonlicensed dock which permit shall be valid for a period of not more than 120 days in any one calendar year from the date of submission by the harbormaster. Section 10. That Chapter 33, Waterways and Vessels, Section 33.056 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.0536. Regattas, races, marine parades, tournaments, exhibitions. Any person directing the holding of a regatta, tournament or marine parade or exhibition shall secure a special event permit from the city, pursuant to the city’s special events code, when such event: requires the use of any public street, sidewalk, alley, park beach or other public place or building; or can substantially inhibit the usual flow of pedestrian or vehicular travel; or requires the occupation of any public area or building which results in preemptive use Attachment number 1 Page 7 of 19 Ordinance No. 8146-10 8 by the general public or which deviates from that public area or building’s established use to conduct such special event. is held in waters within the city limits. A person directing such affairs shall apply to the city manager for a permit at least 30 days prior to the scheduled date of any event. Safety, noise level and public convenience will be considered in allowing or refusing permits for such affairs. The issuance of such a special event permit shall not relieve the applicant of the responsibility for securing such additional permits as may be required by the United States Coast Guard or other agency having jurisdiction. Section 11. That Chapter 33, Waterways and Vessels, Section 33.057 be amended by deleting the stricken language as follows: Sec. 33.057. Public anchorage. (1) Public anchorages within the city limits may be established or designated only by the city manager. Therefore, except as provided by section 33.055(3) and except as further provided in this section, the establishment of floating mooring devices or the anchoring of vessels in the waters of the city for any period exceeding 72 continuous or cumulative hours during any 30-day period, in lieu of mooring at a dock or similar facility, is prohibited. Any vessel violating the provisions of this section shall be subject to removal and impoundment as authorized by section 33.058. (2) Public anchorages may be designated by the city manager. In such areas floating mooring devices may be established by the city or by private parties, at the option of the city. Establishment or use of such a device will require a permit from the city, for which reasonable charges may be assessed, and no such device shall be established or used prior to the issuance of such permit. (3) The provisions of this section permitting anchoring of vessels for a period not exceeding 72 hours shall not apply to that area defined and described in section 33.067(4). Within the area defined and described in section 33.067(4), no anchoring of vessels shall take place except when an emergency condition exists. An emergency condition means failure of the vessel to operate or injury or illness suffered by the person operating the vessel. Section 12. That Chapter 33, Waterways and Vessels, Section 33.058 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.0548. Parking, storing vehicle, trailer, vessel in the parking area of public docking facilities over 7224 hours. (1) No vehicle, vessel or trailer may be parked or stored in the public parking area of any public dock, launching ramp or other public waterfront facilities for a period of more than 24 72 consecutive hours. Any vehicle, vessel or trailer found parked or stored in violation of the time provision set out in this section shall in addition to the penalty provided in section 1.12 be deemed derelict and/or abandoned and subject to removal as provided by law.subject to the removal provision provided in this section. Within this section, the term "vehicle" shall mean any device in, upon or by which any person or property is or may be transported or drawn upon a street or highway, and the term "trailer" shall mean any vehicle with or without motive power designed for carrying persons or property and for being drawn by a motor vehicle. (2) Following removal, the harbormaster shall: Attachment number 1 Page 8 of 19 Ordinance No. 8146-10 9 (a) Immediately notify the owner or person holding the registration of such vehicle, trailer or vessel as to where the vehicle, trailer or vessel was taken; (b) Provide such owner or registrant with an opportunity to reclaim the vehicle, trailer or vessel following the payment of the charges assessed for impounding the vehicle, trailer or vessel; and (c) Provide such owner or registrant with an opportunity to provide any reason such owner or registrant may have as to why the charges should not be assessed prior to the time that such assessment becomes final. Section 13. That Chapter 33, Waterways and Vessels, Section 33.059 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.0559. Prohibited mooring, beaching or placing of vessels. (1) No vessel of any kind whatsoever shall moor to or tie up to a private seawall or dock or be beached upon private property within the city limits without the permission of the owner thereof. (2) No vessel that is in an unregistered, derelict, wrecked, junked, or substantially dismantled condition shall be permitted to dock, moor, or tie up at any private seawall, dock, or moorage space within the city, except that such vessel may moor at licensed marine facilities for the purpose of repair. (2)(3) No vessel shall be moored or otherwise placed in such a manner as to impede, restrict, or otherwise interfere with the use of public docks, launching ramps or other public waterfront facilities. (3)(4) No vessel shall be permitted to occupy the City-owned Island Way Grill, non- leased public dock slips during the period each night between 10:00 p.m. and 8:00 a.m., except in an emergency as authorized by the Ccity Hharbor Mmaster. The harbor master will determine whether the circumstance constitutes an emergency. (4)(5) No vessel shall be permitted to occupy the City-owned Recreation Center (Sand Pearl), non-leased portion of the public dock slips during the period each night between 10:00 p.m. and 8:00 a.m., except in an emergency as authorized by the city harbor master. The harbor master will determine whether the circumstance constitutes an emergency. (6) No vessel shall be permitted to occupy the City-owned side tie, non-leased public mooring section of the Downtown Boat Slips, during the period each night between 9:00 p.m. and 8:00 a.m., except in an emergency or hours may be adjusted to coincide with special events as authorized by the city harbor-master. The harbor-master will determine whether the circumstance constitutes an emergency or a special event. (5)(7) Vessels in violation of this section shall be subject to punishment as provided by law, and all costs of towing and storage of vessels in violation of this section shall be assessed to the vessel owner.a fine, possible removal or impoundment by the city, and costs incident thereto shall be borne by the owner. Attachment number 1 Page 9 of 19 Ordinance No. 8146-10 10 Section 14. That Chapter 33, Waterways and Vessels, Section 33.060 be amended by deleting the stricken language as follows: Sec. 33.060. Unsightly or badly deteriorated boats. (1) No vessel of any kind whatsoever which is of unsightly appearance or in badly deteriorated condition, which is likely to damage docks or other vessels, or which might become a menace to navigation shall be permitted to moor or tie up at any dock within the city limits. Any vessel in such condition is hereby declared to be a public nuisance. (2) The city manager shall determine whether any vessel is of unsightly appearance or in a badly deteriorated condition, and if found to be so shall take steps to compel the repair or removal of same. (3) Where such action is necessary in the performance of his duties pursuant to this section, the city manager shall have authority to remove any vessel and shall move or cause such vessel to be removed to a boatyard or to a public dock. The owner of such vessel shall be assessed all charges accruing from such action. Section 15. That Chapter 33, Waterways and Vessels, Sections 33.061 be amended by deleting the stricken language as follows: Sec. 33.061. Disabled vessels. A disabled vessel which is moored in excess of 72 hours shall be subject to removal and storage by or at the direction of the harbormaster at the expense of the owner or person in charge of the vessel. A disabled vessel which constitutes a hazard to navigation, by virtue of its condition or location, may be summarily removed by or at the direction of the harbormaster if the owner or person in charge of the vessel is not able to move such vessel so that the hazard or danger no longer exists. Section 16. That Chapter 33, Waterways and Vessels, Sections 33.062 be amended by deleting the stricken language as follows: Sec. 33.062. Abandonment of vessels; mooring so as to menace navigation. It shall be unlawful for any person to abandon any vessel in the public waterways within the corporate limits of the city or to moor such vessel in such manner as to cause it to become a menace to navigation. Section 17. That Chapter 33, Waterways and Vessels, Section 33.063 be amended by deleting the stricken language as follows: Sec. 33.063. Blocking navigation channel. (1) Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: (a) Navigation channel means any channel between two land masses, fingers or landfills designed for use by watercraft of any type, any project channel marked and maintained by the federal government, a natural channel marked either by the federal Attachment number 1 Page 10 of 19 Ordinance No. 8146-10 11 government or a local governmental agency, or any natural or artificial channel which is neither marked nor maintained by any governmental authority. (b) Device means any net, seine, rope, stake, piling, pontoon, floatline wire, trap, buoy or any similar device, except a hand thrown cast net. (2) Blocking navigation channel unlawful. It shall be unlawful within the corporate limits of the city to place into any navigation channel, as that term is defined in this section, any device that either temporarily or permanently obstructs the navigation channel in such a manner as to impede the movement of vessels within the navigation channel or which impedes the ingress and egress of vessels in such navigation channel, except where placement of such devices is required in carrying out duly authorized dredging and channel maintenance programs. Section 18. That Chapter 33, Waterways and Vessels, Section 33.064 be amended by deleting the stricken language as follows: Sec. 33.064. Removal and impoundment of dangerous or hazardous watercraft. (1) Any vessel which, due to fire, explosion, accident, act of God, or other disaster which, in the expert opinion of the city harbormaster, constitutes a clear and present danger to life or property, shall be subject to removal and impoundment by the city in a manner consistent with the paramount interest of providing for the safety of the public, and costs incident thereto shall be borne by the owner. (2) Any sunken vessel which, in the expert opinion of the city harbormaster, constitutes a hazard to navigation, shall be subject to removal and impoundment by the city in a manner consistent with the paramount interest of maintaining the waterways in a safe and navigable condition, and the costs incident thereto shall be borne by the owner. Section 19. That Chapter 33, Waterways and Vessels, Section 33.065 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.05665. Speed of vessels--Restrictions. (1) No person shall operate a vessel or allow a vessel to be operated in any water area of the city designated and posted as an idle speed--no wake zone at a speed greater than the slowest speed necessary to maintain steerageway. (2) No person shall operate a vessel or allow a vessel to be operated in any water area of the city designated and posted as a slow speeddown--minimum wake zone at a speed greater than that speed which is reasonable and prudent under the existing circumstances to avoid an excessive wake. A vessel shall be deemed to be operated in compliance with this subsection if the vessel is operated completely off a plane and settled into the water while producing no wake or a minimum wake. A vessel shall be deemed to be operated in violation of this subsection if the vessel is operated on a plane. Section 20. That Chapter 33, Waterways and Vessels, Section 33.066 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.05766. Same--Posting of areas. Attachment number 1 Page 11 of 19 Ordinance No. 8146-10 12 The harbormaster shall post or cause to be posted signs in all areas designated by ordinance as slow speeddown--minimum wake or idle speed--no wake zones, including appropriate signs identifying the beginning and end of each zone, when permitted by law. the state department of natural resources. Each sign shall include, among other information, a reference to the appropriate ordinance of the city and the state department of natural resources permit number. Section 21. That Chapter 33, Waterways and Vessels, Section 33.067 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 33.05867. Same--Areas defined. (1) Slow speeddown --Minimum wake zone, west of Clearwater Pass Bridge. All waters of Clearwater Pass Channel from shoreline to shoreline, westward of Clearwater Pass Bridge to a point approximately 900 yards west of the bridge, which point is marked by Clearwater Pass Light No. 6, are designated as a slow speeddown --minimum wake zone. (2) Slow speeddown --Minimum wake zone, east of Clearwater Pass Bridge. All waters east of Clearwater Pass Bridge and within the following described area are designated as a slow down--minimum wake zone: Begin at the point where the Clearwater Pass Bridge connects with Sand Key on the south, then to a point 470 yards east of the center span of the bridge, which point is marked by Clearwater Pass day beacon no. 16, then to a point approximately 500 yards north, northeast of day beacon no. 16, marked by Marina Channel light no. 8, then due west to the shoreline of Clearwater Beach Island, then following the shoreline southwesterly and westerly to the bridge, and then south to the point of beginning. (3) Slow speeddown --Minimum wake zone, Clearwater Marina Channel. All waters of the Clearwater Marina Channel from a point marked by a buoy designated number #1 at latitude 27 degrees 58 minutes .577 seconds north, longitude 82 degrees 49 minutes .316 seconds west then following the mean low water mark (MLW ) north-northwest to the point of the idle speed no wake zone at latitude 27 degrees 58 minutes 33.7(.5617) seconds north, longitude 82 degrees 49 minutes 17.8(.2967) seconds west, then continuing south along the idle speed zone to the point of the eastern tip of the Devon Drive, at approximate latitude 27 degrees 58 minutes 25(.4167) seconds north, longitude 82 degrees 49 minutes 22(.3667) seconds west, then following the shoreline along the channels between Devon Drive and Brightwater Drive, and Brightwater Drive and Bayside Drive to a point marked by a buoy designated by number #5 at latitude 27 degrees 58 minutes .238 seconds north, longitude 82 degrees 49 minutes .149 seconds west, then north to Marina Channel day board number 9, marked by buoy designated by number #3 at latitude 27 degrees 58 minutes .290 seconds north, longitude 82 degrees 49 minutes .085 seconds west, then along the Marina Channel west to a point marked by a buoy designated by number #2 at latitude 27 degrees 58 minutes .530 seconds north, longitude 82 degrees 49 minutes .299 seconds west, and back to point of beginning are designated as slow speeddown -minimum wake zone. (4) Idle speed--No wake zone, Clearwater Marina basin. All waters of the Clearwater Marina basin lying west of the following described line are designated as an idle speed--no wake zone: From the point on the shoreline nearest the eastern terminus of Devon Drive (latitude 27 degrees 58 minutes 24 seconds north, longitude 82 degrees 49 minutes 23 seconds west), north-northeast approximately 150 yards to a point marked by Marina Channel day beacon no. 11, then continuing north-northeast approximately 200 yards to a point on the shore of Memorial Causeway. Attachment number 1 Page 12 of 19 Ordinance No. 8146-10 13 (5) Slow speeddown --Minimum wake zone; internal canal of Bayside subdivisions. All waters of the canal between Brightwater Drive and Bayside Drive are designated as a slow speeddown --minimum wake zone. (6) Slow speeddown --Minimum wake zone; internal canals of Island Estates. All waters of the internal canals of Island Estates are hereby designated as a slow speeddown -- minimum wake zone. (7) Slow speeddown --Minimum wake zone, north of Memorial Causeway for vessels greater than 25 feet in length. Single engine vessels 25 feet or less may operate at a speed limit of 35 mph from Somerset Street to the northernmost point of the slow speed minimum wake zone on Island Estates. All waters in the following described area are designated as a slow down-minimum wake zone: Begin at a point approximately 75 yards, more or less, to a point approximately on Island Way, located at 27 degrees 59 minutes 51 seconds north, 82 degrees 49 minutes 21 seconds west, then westerly to the easternmost point of Kipling Plaza on Clearwater Beach Island, then southerly along the shoreline of Clearwater Beach Island to the fixed highway bridge at the west end of Memorial Causeway, then easterly along the bridge and Memorial Causeway to the west shoreline of Island Way, then northeasterly along the shoreline of Island Way to the shoreline of Island Estates, then along the shoreline of Island Estates to the point of beginning. (8) No Internal combustion motors zone; Clearwater Community Sailing Center and Adjacent Sand Key Beach. All waters in the following described area are designated as a no internal combustion motors zone: Begin at the designated wake zone on the southeast corner under the Clearwater Pass Bridge, at marker buoy 11, located at 27 degrees 57 minutes 33.6 seconds north, 82 degrees 49 minutes 18.54 seconds west, and continue in a southeast direction to a point approximately 100 yards offshore, then in a southerly direction approximately 800 yards, more or less, to a point marked by a buoy at 27 degrees 57 minutes 09 seconds north, 82 degrees 49 minutes 49 seconds west, then in a westerly direction 100 yards, more or less, to a point approximately on the mean high-water line at the Clearwater Community Sailing Center, located at 27 degrees 57 minutes 55 seconds north, 82 degrees 49 minutes 49 seconds west, then in a northerly direction along the mean high-water line, then to the point of beginning at marker buoy 11. (9) Slow speeddown --Minimum wake zone; internal canals, of Marina Del Rey and Isle of Sand Key. All waters of the internal canals of Marina Del Rey and Isle of Sand Key, south of Harborage Court and north of the southern boundary of the city are designated as a slow speeddown -- minimum wake zone. (10) Slow speeddown --Minimum wake zone; Island Estates-Palm Island SE-Harbor Island. All waters in the following described area are designated as a slow speeddown -- minimum wake zone: Begin at a point approximately on Palm Island SE located at 27 degrees 59 minutes 05 seconds north, 82 degrees 48 minutes 48 seconds west, then in an easterly direction 75 yards, more or less, to a point marked by a buoy, then in a northerly direction 1,600 yards, more or less, to a point marked by a buoy, then in a southerly direction 75 yards, more or less, to a point approximately on Island Way, located at 27 degrees 59 minutes 51 seconds north, 82 degrees 49 minutes 16 seconds west, then in a easterly direction to Harbor Island and southerly direction along the shoreline to the point of beginning. Attachment number 1 Page 13 of 19 Ordinance No. 8146-10 14 (11) Slow speeddown --Minimum wake zone; Windward Island. All waters in the following described area are designated as a slow speed--minimum wake zone: Begin at a point approximately on Palm Island SE, located at 27 degrees 59 minutes 07 seconds north, 82 degrees 48 minutes 46 seconds west, then in a southerly direction 1,600 yards, more or less, to Private Aids number "5" -- 27 degrees 58 minutes 22 seconds north, 82 degrees 48 minutes 35 seconds west, then in a westerly direction to Windward Island and northerly in direction along the shoreline to Palm Island SE, then approximately 75 yards east from the shoreline to the point of beginning. (12) Slow speeddown --Minimum wake zone, along the Gulf of Mexico side of Sand Key Beach. All waters in the following described area are designated as a slow speeddown - minimum wake zone: Begin at a point on the shoreline of the southern most property line of the Sheraton Sand Key Resort at 1160 Gulf Blvd. to a point approximately 300 feet offshore, more or less, located at 27 degrees 57 minutes 11 seconds north, 82 degrees 49 minutes 59 seconds west, then southerly approximately 1,900 yards, more or less, to the southernmost City of Clearwater limits, located at 27 degrees 56 minutes 11 seconds north, 82 degrees 50 minutes 30 seconds west, then easterly approximately 300 feet to shore, parallel to Sand Key Estates Court, then northerly along the shoreline of Sand Key Beach to the point of beginning., Section 22. That Chapter 33, Waterways and Vessels, Section 33.068 be amended by deleting the stricken language as follows: Sec. 33.068. Same--Florida Intracoastal waterway excluded. The regulations and restrictions contained in sections 33.065 through 33.067 shall not be so construed as to apply to any portion of the Florida Intracoastal Waterway. Section 23. That Chapter 33, Waterways and Vessels, Section 33.069 be amended by deleting the stricken language as follows: Sec. 33.069. Operating or docking vessels while under the influence of alcoholic beverages or controlled substances. It shall be unlawful for any person to operate or attempt to operate any vessel in any of the waters within the corporate limits of the city while under the influence of alcoholic beverages or controlled substances, or for any person to attempt to dock a vessel at a municipal dock while under the influence of alcoholic beverages or controlled substances or in a reckless or careless manner. (Code 1980, § 114.44) Cross references--Alcoholic beverages, ch. 6; parks, beaches and recreation, ch. 22. State law references--Similar provisions, F.S. § 327.35. Section 24. That Chapter 33, Waterways and Vessels, Section 33.070 be amended by deleting the stricken language as follows: Sec. 33.070. Negligent operation of surfboards, vessels, waterborne aircraft. (1) No person shall operate in the water of the city any surfboard, vessel, or waterborne aircraft of any type whatsoever, whether mechanized or not, in a careless or negligent manner so as to endanger the life, limb or property of any person. Attachment number 1 Page 14 of 19 Ordinance No. 8146-10 15 (2) Negligent operation, when used in this section, means the failure on the part of the operator of any surfboard, vessel, or waterborne aircraft to exercise that degree of care necessary under the circumstances to prevent the endangering of life, limb or property of any person. Negligent operation may be caused by the operator's ignorance, inattention, indifference or general carelessness. (Code 1980, §§ 114.45, 114.451) Cross references--Airports and aircraft, ch. 4; parks, beaches and recreation, ch. 22; bathing and swimming areas in parks and on beaches, § 22.33. State law references--Reckless or careless operation of vessel, F.S. § 327.33. Section 25. That Chapter 33, Waterways and Vessels, Section 33.071 be amended by deleting the stricken language as follows: Sec. 33.071. Grossly negligent operation of surfboards, vessels, waterborne aircraft. (1) No person shall operate in the waters of the city any surfboard, vessel, or waterborne aircraft of any type whatsoever, whether mechanized or not, in a grossly negligent manner so as to endanger the life, limb or property of any person. (2) Grossly negligent operation, as used in this section, means extreme forms of negligence. Gross negligence is an absence of all care. The term means that the operator of a vessel knows that a certain act can create an unreasonable risk of harm, even though he does not necessarily intend to cause harm. (Code 1980, §§ 114.452, 114.453) Cross references--Airports and aircraft, ch. 4; parks, beaches and recreation, ch. 22; bathing and swimming areas in parks and on beaches, § 22.33. Section 26. That Chapter 33, Waterways and Vessels, Section 33.072 be amended by deleting the stricken language as follows: Sec. 33.072. Operation of watercraft near docks, piers, seawalls, shorelines. No person shall operate any vessel or waterborne aircraft of any type whatsoever at any speed exceeding five miles per hour within 50 feet of any dock, pier, seawall or shoreline within the waters of the city. (Code 1980, § 114.454) Section 27. That Chapter 33, Waterways and Vessels, Section 33.073 be amended by deleting the stricken language as follows: Sec. 33.073. Water skiing. (1) Definition. Water skiing, as used in this section, means the act whereby a person, either barefoot or upon water skis, aquaplanes, kites, parachutes, or any similar devices or contrivances, is towed behind any type of vessel in any manner whatsoever. (2) Towing restrictions. While engaged in water skiing, it shall be the responsibility of the operator of the towing vessel to navigate, maneuver and otherwise pilot the towing vessel in such manner as to keep the person being towed clear of other vessels, obstructions and hazards of any kind. No such vessel towing a water skier shall be maneuvered in such a manner as to endanger the life, limb or property of the person being towed, or of other persons Attachment number 1 Page 15 of 19 Ordinance No. 8146-10 16 nearby. Similarly, no such vessel towing a water skier shall be maneuvered in such a manner that the wake of the towing vessel or spray from the device being towed shall result in danger or damage to persons or property nearby, or in annoyance to other persons desiring peaceful use of the city's waterways. No person shall be towed aboard inflatable tubes or similar devices, or aboard any other device or contrivance which, by reason of size, configuration, design or construction does not afford a safe degree of controllability to the person being towed. (3) Prohibited in certain areas. Water skiing is prohibited in the following areas of the city: (1) Within any area designated a no wake zone pursuant to the provisions of this article; (2) At any other place within the city where the person being towed may pass within 50 feet of a dock, pier, seawall, bridge or other obstruction, with the exception of channel markers and similar isolated marine structures. Exceptions to this rule will be permitted for initial launching of skiers from shoreline areas not otherwise restricted by this section. From such areas, with the consent of the owner thereof, water skiers may be launched, provided the 50- foot restriction is observed immediately after launching. Exceptions to this rule may also be permitted for special events for which a city permit is issued; (3) In close proximity to any occupied or unoccupied vessel, whether at anchor or under way. As used in this subsection, the term "close proximity" shall mean operation of the towing vessel in such a manner that a vessel or its occupants are subjected to a water spray either from the towing vessel or from the person water skiing or in such manner that the occupants of any vessel are prevented from using the waterways for pleasure boating. (Code 1980, §§ 114.46--114.48) Cross references--Definitions and rules of construction generally, § 1.02; use regulations for parks and beaches generally, § 22.21 et seq. State law references--Water skis regulated, F.S. § 327.37. Section 28. That Chapter 33, Waterways and Vessels, Section 33.074 be amended by deleting the stricken language as follows: Sec. 33.074. Use of searchlights, horns, whistles, bells, etc. The use of searchlights, horns, whistles, bells or similar light- or sound-producing devices on any vessel within the city is prohibited except when used to satisfy the requirements of safe navigation. (Code 1980, § 114.52) Section 29. That Chapter 33, Waterways and Vessels, Section 33.111 be amended by adding the underlined language deleting the stricken language as follows: ARTICLE V. VESSELVEHICLE-RESTRICTED AREAS Sec. 33.111. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Attachment number 1 Page 16 of 19 Ordinance No. 8146-10 17 Business operator means a lessee, licensee, franchisee, or other person expressly authorized by the owner to engage in the business of renting vessels on or seaward of the owner's upland beachfront property. Chase or emergency vessel means a vessel available solely for the purpose of effecting a sea rescue in an emergency or for the purpose of ensuring that rental vessels are operated in compliance with federal or state law or with city or county ordinances. The term does not include vessels used for rental. Corridor and marked corridor mean a defined area within the restricted area leading from the shoreline to the western boundary of the restricted area, established in conjunction with the approval of a waiver from the provisions of section 33.114 pursuant to this article, in which vessels may be operated subject to the conditions of this article and the terms of the waiver approval. Customer means a person renting vessels to be operated in a corridor or using vessels operated in a corridor whether or not consideration has been paid for such use. The term does not mean an owner, a business operator, or an employee of either. Manually powered vessel means a vessel which uses human physical effort as its primary source of motive propulsion. The term does not include sailboats or other watercraft whose sole source of propulsion is the wind. Mechanically powered vessel means a vessel which uses an internal combustion engine or an electric motor as its primary source of motive propulsion. Owner means the owner of upland beachfront property having riparian rights. Personal watercraft means a class A (under 16 feet) inboard vessel which uses an internal combustion engine powering a water jet pump as its primary source of motive propulsion, designed to be operated by a person sitting, standing or kneeling on or being towed behind the vessel, rather than in the conventional manner of sitting or standing inside the vessel. Restricted area means the area defined in section 33.114. Watercraft means, but is not limited to any boat, vessel, barge, personal watercraft, surfboard, skimboard, water ski, windsurfer, or any other similar contrivance or device used or capable of being used as a means of transportation on the water. WatercraftVessel operator means a person who is in actual physical control of or steering a watercraft vessel or who is exercising control over or steering any device being towed by a watercraftvessel. Section 30. That Chapter 33, Waterways and Vessels, Section 33.114 be amended by adding the underlined language deleting the stricken language as follows: Sec. 33.114. Vessels and aircraft exclusion prohibited in certain areas. Attachment number 1 Page 17 of 19 Ordinance No. 8146-10 18 Except as provided in this article, it shall be unlawful for any person to steer, propel, operate or cause to be operated any vessel or aircraft within the waters of the following described area located on Clearwater Beach: Those portions of lands lying in and those lying seaward in sections 5, 6, 7 and 8, township 29 south, range 15 east, and within the following described tract in Pinellas County, State of Florida; such tract being circumscribed by the following boundaries: Starting at state DNR monument R-46, for a point of beginning, having state grid coordinates north 1323162.118 and east 232132.464; proceed south 27 degrees 58 minutes 31 seconds west, 697.919 feet; thence north 47 degrees 19 minutes 57 seconds west, 850.00 feet; thence north 09 degrees 15 minutes 48 seconds east, 6406.778 feet; thence north 89 degrees 37 minutes 00 seconds east, 753.562 feet; thence south 02 degrees 23 minutes 00 seconds east, 1518.50 feet; thence south 01 degrees 44 minutes 00 seconds west, 785.00 feet; thence south 22 degrees 10 minutes 35 seconds west, 178.110 feet; thence south 06 degrees 30 minutes 52 seconds west, 1529.520 feet; thence south 05 degrees 22 minutes 28 seconds west, 274.39 feet; thence south 44 degrees 24 minutes 59 seconds west, 167.095 feet; thence south 23 degrees 27 minutes 12 seconds west, 1052.966 feet; thence south 05 degrees 08 minutes 46 seconds west, 994.835 feet to the point of beginning, such westernmost line of 6406.778 length representing an approximately 300-foot boundary line from the mean high-water line of Clearwater Public Beach, such 300-foot restricted area to commence at the centerline of the north jetty at the south end of Clearwater Beach Island and run northward to the centerline of the Somerset Street end. 33.114A. All waters in the following described area are designated as no vessels: Begin at the dock behind the Bait House on Pier 60, then out approximately 50 feet, located by a piling at 27 degrees 58 minutes 39 seconds north, 82 degrees 49 minutes 49 seconds west, and continue in a westerly direction approximately 300 feet to a point on the T-dock of the Pier, then in a northerly direction to a point marked by a buoy at 27 degrees 58 minutes 41 seconds north, 82 degrees 49 minutes 53 seconds west, then in a westerly direction approximately 90 feet, more or less, to a point located by a buoy at 27 degrees 58 minutes 41 seconds north, 82 degrees 49 minutes 58 seconds west, then in a southerly direction approximately 100 yards to a point located by a buoy at 27 degrees 58 minutes 39 seconds north, 82 degrees 49 minutes 54 seconds west, then in an easterly direction to a point located by a buoy at 27 degrees 58 minutes 39 seconds north, 82 degrees 49 minutes 52 seconds west, then north to a point on the T-dock of the Pier, then east approximately 300 feet to a point located by a piling located at 27 degrees 58 minutes 37 seconds north, 82 degrees 49 minutes 52 seconds west, the north to the dock of the Pier across from the Bait House on the Pier. Section 31. That Chapter 33, Waterways and Vessels, Section 33.115 be amended by adding the underlined language deleting the stricken language as follows: Sec. 33.115. Removal and protective storage and impoundment of vessels and aircraft in violation of section 33.114. Any vessel or aircraft as previously defined shall, upon being found to be in violation of the provisions of section 33.114, be subject to removal and protective storageimpoundment by the city. Prior to impoundment and removal and protective storage, the city shall provide notice to the owner of such vessel or aircraft of such proposed action. Such notice shall be placed on the property proposed to be removed and storedimpounded. Such notice shall include a statement that a removal and protective storageor impoundment hearing will be conducted by Attachment number 1 Page 18 of 19 Ordinance No. 8146-10 19 the city manager setting forth the place and time of such hearing within five days of the date of the notice. Such provision shall advise the owner or person interested in the property proposed to be removed that unless such property is removed by such person, the person may appear at the impoundment or removal and protective storage hearing to contest the decision to remove such property. In situations where the owner has received personal notice to remove the vessel or aircraft and has refused or neglected to comply, the police officer shall proceed with protective storageimpoundment, provide the owner with a notice of protective storageimpoundment and shall advise the owner that he may request a hearing similar to that provided in section 30.076. Where impoundmentprotective storage and or removal is by the city, aAll costs relating to the removal and protective storage incident thereto shall be borne by the owner of such property, as permitted by law. Section 32. That Chapter 33, Waterways and Vessels, Section 33.120 be amended by adding the underlined language deleting the stricken language as follows: Sec. 33.120. Same--Denial and reasons. Within 30 days after the filing of an application for a waiver from the provisions of section 33.114, the city councilcommission at a regularly scheduled meeting shall take action on the application and shall send the owner written notice by regular U.S. mail of the action taken. The waiver shall be granted unless one or more of the following conditions is found to exist: (1) The application is incomplete in a material respect. (2) The application has been fraudulently completed. (3) The activity proposed under the waiver application could not be conducted without a reasonably likely threat of endangering public safety. Section 33. This ordinance shall take effect immediately upon adoption. PASSED ON FIRST READING _____________________ PASSED ON SECOND AND FINAL _____________________ READING AND ADOPTED ___________________________ Frank V. Hibbard Mayor Approved as to form: Attest: ____________________________ ____________________________ Camilo A. Soto Cynthia E. Goudeau Assistant City Attorney City Clerk Attachment number 1 Page 19 of 19 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Amend Article VII, Solid Waste Management, Sections 32.2715, 32.272(4), 32.288, 32.289 (7)and(8), and 32.293 (8) and pass Ordinance 8131-10 on first reading. SUMMARY: The Solid Waste ordinance is being revised to award exclusivity to the City of Clearwater Solid Waste department to provide roll- off service within the city limits. This will relieve several city departments from the administrative burden of regulating the commercial haulers. Section 32.2715 needs to be updated to better clarify the definition of construction debris, and Sections 32.272(4), 32.288, 32.289 (7) and (8), and 32.293(8) need to be amended in order to award exclusivity to the Solid Waste department within city limits as statutory notice requirements have been meet. Amended language shall take full force and effect upon adoption of 8131-10. Division 1. Generally Section 32.2715. Definitions. (5) Construction debris is being updated to provide a clarified definition. Section 32.272 Collection by city; exceptions. (4) Exception for private collectors with roll-off containers. Amend current language to prevent private collectors from obtaining permits in order to place or service roll-off containers, compactors or waste receptacles within City limits three years after adoption of 8131-10. After the above mentioned deadline, if the City determines it is unwilling or unable to collect a certain type or volume of refuse, permits shall only be issued to private collectors or to sole proprietors or corporate entities that solely service individual trailers or other similar rubber tire vehicles that are no larger than fifteen (15) cubic yards. Division 2. Permit for Roll-off Container and/or Waste Receptacle Service 32.288 Required Amend current language to state it shall be unlawful for any party, other than the City, to engage in the business of collecting, removing or disposing of construction debris and putrescible waste generated by commercial establishments. However, should the City be unwilling or unable to provide said service a sole proprietor or corporate entity shall be able to place or service a roll-off container or waste receptacle provided they obtain a permit to legally continue such business without penalty. In addition, amend language to advise that a new Permitee or a renewing Permitee shall only be allowed to provide said service until February 18, 2013, or 3 years from adoption of ordinance 8131-10 unless they are solely servicing individual trailers or other similar rubber tire vehicles that are no large than fifteen (15) cubic yards. Section 32.289 Application (7) The requirement to provide contract copies to obtain a permit is being removed from the ordinance. (8) Due to 32.289 (7) being removed from ordinance, number eight will be renumbered. Also the phrase “if applicable” will be added. 32.293. Roll-off and/or waste receptacle permit application, termination, denial. Cover Memo Amend current language to state the City shall issue permits to private collectors or corporate entities only if the City is unwilling or unable to provide said service, or private collectors are solely servicing individual trailers or other similar rubber tire vehicles that are no larger than fifteen (15) cubic yards. In addition, amend language to advise that a new Permitee or a renewing Permitee shall only be allowed to provide said service until February 18, 2013, or 3 years from adoption of ordinance 8131-10. Appropriation Code Amount Appropriation Comment N/A Review Approval: 1) Office of Management and Budget 2) Legal 3) Clerk 4) Assistant City Manager 5) Solid Waste/General Support Services 6) Office of Management and Budget 7) Legal 8) Clerk 9) Assistant City Manager 10) Clerk 11) City Manager 12) Clerk Cover Memo Ordinance No. 8131-10 ORDINANCE NO. 8131-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, AMENDING THE CLEARWATER CODE OF ORDINANCES SECTION 32.2715 OF ARTICLE VII, WASTE MANAGEMENT, EXCLUDING TREE TRIMMINGS AND VEGETATIVE MATTER FROM THE DEFINITION OF CONSTRUCTION DEBRIS; AMENDING SECTIONS 32.272(4) AND 32.288 OF ARTICLE VII, SOLID WASTE MANAGEMENT, PROVIDING THE CITY OF CLEARWATER EXCLUSIVITY IN THE BUSINESS OF COLLECTING, REMOVING, OR DISPOSING OF CONSTRUCTION DEBRIS, WHETHER COMMERCIAL OR RESIDENTIAL IN NATURE, OR PUTRESCIBLE WASTE GENERATED BY COMMERCIAL ESTABLISHMENTS WITHIN THE CITY LIMITS; DELETING THE REQUIREMENT THAT COPIES OF SERVICE CONTRACTS ACCOMPANY ALL ROLL-OFF/WASTE RECEPTACLE PERMIT APPLICATIONS IN SECTION 32.289, ARTICLE VII, SOLID WASTE MANAGEMENT; AMENDING SECTION 32.293(8) OF ARTICLE VII, SOLID WASTE MANAGEMENT, REITERATING THAT PERMITS WILL ONLY BE ISSUED AFTER FEBRUARY 18, 2013, OR THREE (3) YEARS FROM THE DATE OF ADOPTION OF THIS ORDINANCE, WHICHEVER IS LATER, TO PRIVATE COLLECTORS THAT EITHER COLLECT REFUSE THAT THE CITY HAS FIRST REFUSED TO COLLECT OR THOSE THAT ONLY SERVICE INDIVIDUAL TRAILERS OR OTHER SIMILAR RUBBER TIRE VEHICLES NO LARGER THAN FIFTEEN (15) CUBIC YARDS, NO OTHER PERMITS WILL BE ISSUED OR BE HELD VALID AFTER SUCH DATE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, section 32.288 of the Clearwater Code of Ordinances (the Code) requires any “persons or companies placing or servicing roll-off containers, whether installed permanently or temporarily within the city,” to obtain a permit (the Permit Program), and WHEREAS, the administration of the Permit Program has become inefficient and too costly to maintain in its current state, and WHEREAS, to reduce departmental operational costs, it is the City of Clearwater’s intent to reduce access to the Permit Program only to private collectors that are willing and able to collect refuse that the City of Clearwater has had the first opportunity to refuse, or to private collectors in the business of servicing only Attachment number 1 Page 1 of 5 2 Ordinance No. 8131-10 individual trailers or other similar rubber tire vehicles that are no larger than fifteen (15) cubic yards, and WHEREAS, according to section 403.70605, Florida Statutes, the City of Clearwater’s intended reduction to the Permit Program constitutes “displacement” of private collectors that currently hold or could hold a city-issued permit for the placing and servicing of refuse collected, and WHEREAS, complying with the requirements of section 403.70605, Florida Statutes, the City has provided at least forty-five (45) days written notice to all entities known to be servicing within City limits affording them the opportunity to comment on the adoption of this ordinance, and WHEREAS, the City shall not take steps to enforce the reduced permitting program until after February 18, 2013 or three (3) years have elapsed after the final public hearing adopting this ordinance, whichever is later, and WHEREAS, private collectors that solely collect tree trimmings and other vegetative remains resulting from site work or land clearing will not have to procure a permit and shall continue to conduct such activity legally after the adoption of this ordinance, and WHEREAS, with the reduction in the permitting program it would be unnecessary to require Permitees to submit copies of all service contracts involving properties serviced within the limits of the City of Clearwater, now therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. That Chapter 32, Utilities, Section 32.2715 be amended by adding the underlined language as follows: Sec. 32.2715. Definitions. . . . (5) Construction debris means discarded building materials and rubble including but not limited to earth, cement, brick, wire, cans, flooring materials, lumber, plaster, roofing materials and any other waste resulting from construction, remodeling, repair or demolition of any structure or pavement. Such construction debris may be either commercial or residential in character. A collection of solely tree trimmings and vegetative remains resulting from site work or land clearing is not considered construction debris for purposes of this definition; however, if mixed with construction debris, the entire collection of material is considered construction debris. Attachment number 1 Page 2 of 5 3 Ordinance No. 8131-10 . . . Section 2. That Chapter 32, Utilities, Section 32.272 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 32.272. Collection by city; exceptions. . . . (4) Exception for private collectors with roll-off containers, compactors or waste receptacles. This chapter shall not prohibit a private collector holding a permit from the placing and servicing roll-off containers for commercial and industrial solid waste issued by the city that the city does not choose to collect and approves for collection by outside contract. A private collector currently holding or eligible to obtain a City-issued permit for placing and servicing roll-off containers, compactors, or waste receptacles for sites generating construction debris or commercial establishments generating putrescible waste, may acquire such permit or continue renewing such permit to legally provide said service only until February 18, 2013, or three (3) years from the date of adoption of Ordinance 8131-10, whichever is later. After the aforementioned deadline, permits shall only be issued to private collectors that are able or willing to collect, remove or dispose of a particular type or volume of refuse, only after the City has first determined that it is unable to service such type or volume of refuse; or for such private collectors that only service individual trailers or other similar rubber tire vehicles that are no larger than fifteen (15) cubic yards. Moreover, the City may honor an existing private refuse contract for existing development which annexes into the City for the remainder of the contract term or for five (5) years from the date of annexation, whichever is shorter. . . . Section 3. That Chapter 32, Utilities, Section 32.288 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 32.288. Required. A permit is required by this division for persons or companies placing or servicing roll-off containers, whether installed permanently or temporarily within the city. Pursuant to section 32.272(1), it shall be unlawful for any party, other than the City, to engage in the business of collecting, removing, or disposing of construction debris, whether commercial or residential in nature, or Attachment number 1 Page 3 of 5 4 Ordinance No. 8131-10 putrescible waste generated by commercial establishments. However, a sole proprietor or corporate entity placing or servicing a roll-off container or waste receptacle for the purpose of collecting, removing or disposing of construction debris, whether commercial or residential in nature, or putrescible waste generated by commercial establishments shall be required to procure a permit to legally continue such business activity without penalty, and hereinafter be known as Permittee, only under the following circumstances: (1) when a new Permitee or a renewing Permitee satisfies all permit application requirements in section 32.289; however, such Permitee takes permit understanding that it will continue to provide said service only until February 18, 2013, or three (3) years from the date of adoption of Ordinance 8131-10, whichever is later; (2) a permit may be issued when, pursuant to section 32.293(3), the City first determines that it is unable or unwilling to collect, remove or dispose of a particular type or volume of refuse; or (3) a permit may be issued to a sole proprietor or corporate entity that only services individual trailers or other similar rubber tire vehicles that are no larger than fifteen (15) cubic yards. Section 4. That Chapter 32, Utilities, Section 32.289 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 32.289. Application. . . . (7) Be accompanied by copies of all contracts or options for the servicing or placing of roll-off containers or waste receptacles within the City of Clearwater. For permitting purposes only, the City shall honor existing private servicing contracts for the remainder of the contract term or for five (5) years from the date of execution, whichever is shorter, provided that such contract or option was in effect on or before June 4, 2009. If the applicant is unable to provide copies of contracts or options, as required by this section, applicant shall be ineligible to obtain a permit. (8)(7) Disclose all previous business names, current subsidiaries, parent companies or any successors, if applicable. Section 5. That Chapter 32, Utilities, Section 32.293 be amended by adding the underlined language and deleting the stricken language as follows: Sec. 32.293. Roll-off and/or waste receptacle permit application, termination, denial. . . . Attachment number 1 Page 4 of 5 5 Ordinance No. 8131-10 (8) Only private collectors that are able or willing to collect, remove or dispose of a particular type or volume of refuse that the City has first determined that it is unable or unwilling to service or private collectors that only service individual trailers or other similar rubber tire vehicles that are no larger than fifteen (15) cubic yards, may be eligible to acquire or continue to renew a permit after February 18, 2013, or three (3) years from the date of adoption of Ordinance 8131-10, whichever is later. No other permits shall be issued nor be considered valid af ter such date. No permit shall be issued after all permitee’s contracts or options to service or place roll-off containers and/or waste receptacles within the City of Clearwater have terminated or such contracts cease to be enforceable. Section 6. This ordinance shall take effect immediately upon adoption. PASSED ON FIRST READING _____________________ PASSED ON SECOND AND FINAL _____________________ READING AND ADOPTED ___________________________ Frank V. Hibbard Mayor Approved as to form: Attest: __________________________ ____________________________ Camilo A. Soto Cynthia E. Goudeau Assistant City Attorney City Clerk Attachment number 1 Page 5 of 5 February 4 2010 Councilmember Paul Gibson City of Clearwater 112 S Osceola Avenue Clearwater FL 33756 Dear Councilmember Gibson I would first like to thank you allowing me the time to speak on the importance of saying NO to Ordinance 8131010 Waste Services of Florida Inc a wholly subsidiary of Waste Services Inc feels strongly that Ordinance 813110should NOT be adopted due to the harm it shall impede on our business our employees and our current longstanding customers in the City of Clearwater Please find enclosed the following documents for your review 1 Five 5 letter and amails from current customers who are in opposition to the Ordinance 2 Waste Services of Floridas license from the Florida Department of Environmental Protection to operate a Construction Debris recycling Materials Recovery Facility 3 The Florida Statute stating the states 75 recycling goal 4 The Florida Department of Environmental Protectiori s 75 Recycling Goal Report to the Legislature report We have marked the page that references the recycling of Construction Debris 5 The home page to the GREEN CLEARWATER website stating that the city is working in concert with residents businesses and its own employees to implement strategies for a sustainable future Waste Services looks forward to the City Councils opposition of this ordinance Please do not hesitate to contact myself at 727 6398895 if you have any questions about WSI or if you would like to take a personal tour of our Construction Debris recycling Materials Recovery Facility Sincerely Waste Services of Florida Inc Williams Krimmel District Manager r Pinellas County Waste Services ofFlorida 11500 43rd Street North Clearwater Florida 33762 Waste Services has provided service to Morton Plant Mease Health Care for the last several years I have been very satisfied with the level of customer service displayed by the Waste Services team They are responsive and attentive to our needs Waste Services meets the needs of the customer at a competitive cost My recommendation is to ensure a competitive environment remains in place thus ensuring private waste haulers are not displaced per City of Clearwater Ordinance 813110 Waste Services has been in the waste business for many years and consistently provides products and services to meet our waste disposal needs I trust their expertise and knowledge regarding the waste disposal process Sincerely Bruce Jacobs Director Environmental Services Morton Plant Mease Health Care 0 2ijcover REGENCY OAKS February 3 2010 Earl Gloster Director Solid WasteGeneral Services City of Clearwater 1701 North Hercules Avenue Clearwater FL 33765 Dear Mr Gloster A life care community too active to retire I am writing in opposition to the proposed ordinance displacing private waste companies servicing customers within the city limits of Clearwater Regency Oaks has been a long term customer of Waste Services Inc and we are extremely satisfied with the service they provide Government elimination of competition does nothing to improve the quality of service or keep pricing competitive An open market allows for fair pricing and superior service that allows businesses to select service providers to best meet their needs I ask that you please consider a solution that accommodates the interest of Clearwater taxpayers and businesses Thank you 0 n Sincerely Brant Spence Executive Director CC Curtis Gordon Waste Services Inc 727 7913381 Fax 727 7910440 2751 Regency Oaks Boulevard Clearwater Florida 33759 wwwRegency0akscom 1r Lincoln Waste Solutions LLC In Todays Competitive Business 1nvironmentFveiy Penny nunts 1010 Wethersfield Avenue Hartford CT 06114 phone 860 6567712 fax 860 6567715 Wednesday February 03 2010 Re City Franchise Contracts for Waste Removal To Whom It May Concern I would like to take this opportunity to share experiences and challenges realized from managing client businesses in jurisdictions where free market competition is excluded 1 Advantage Only one companys trash trucks travels down your streets thus standardizing service Realized Challenges Myth Though this allows a city not to have to track which company is servicing which Customers But it pigeon holes customers who are experiencing poor service With free market competition they can get relief from another competitor who is motivated to earn the customers business Phone calls repeatedly fall on deaf ears if franchised hauler will not go back to service a missed location They know that due to the contract the customer cannot contract with another provider 2 Advantage Fixed pricing based on negotiated contract during bid process Realized Challenges Myth Eliminating free enterprise does not allow your customers to benefit from economic conditions that turn in favor of a consumer Trash haulers with favorable disposal arrangements are always entering new markets with tremendous resources partnerships Companies are constantly looking for alternative to fossil fuels recycling high percentage of the waste being disposed at lower disposal rates A global contract does not allow you to react be flexible to cost containment is Lincoln Waste Solutions LLC In Todayson1pentive Business Envirownent Eveiy Penny Counts 1010 Wethersfield Avenue Hartford CT 06114 phone 8606567712 fax 8606567715 3 Advantage One customer service center for customers city offices to facilitate requests complaints through Realized Challenges Myth There is no motivation to have billing requests service changes etc handled on a timely basis In all markets across the country service is extremely slow 4 Advantage The stability of contracting with established hauler possibly National Provider Myth Allied Waste was the 2na largest hauler in the US and their sale to a smaller Republic was in effect a Bailout acquisition Also established governments like you are proficient in vetting out poor financial arrangements Franchised are antiAmerican are detrimental to the spirit of the McCarronFerguson act for fair trade Lincoln Waste Solutions LLC is a National Provider of Management services for Waste Recycling Services We manage contract waste services for corporations businesses that have multiple locations under their control Please feel free to call me if there are any questions that I may be able to answer Sincerely Nick Zoccoli Chief Operating Officer 8606567712 X115 Email nzoccoli@lincolnwastecom Ian Boyle Subject Ordinance 813110 From Mark Stack mailtomstack@newmarketwastecom Sent Wednesday February 03 2010 305PM To Ona Clark Subject RE Ordinance 813110 Ona it sounds like they want to franchise the city limits If this is the case it hurts the businesses in that city due to the spirit of competition Prices will go up and service goes down Are they going to make it where there is only one fast food restaurant one convenient store or one car dealer NO Thank you Mark Stack New Market Waste Solutions 7046329934 office 7046329936 fax E 1 Brianna Branigan From jason stross Daystross@gmailcoml Sent Tuesday February 02 2010 446PM To Brianna Branigan Subject Re City of Clearwater Ordinance WSI Brianna Hopefully this helps your argument good luck To City Council of Clearwater After being brought to my attention that you are wishing to do away with private haulers I am very concerned as Business owner and General Contractor who has done work in the City of Clearwater city limits I have been at the mercy of other municipalities Garbage collection most recently Largo and it is not only inconvenient to have set up ANOTHER account as a construction company but have found that when doing a job the citys capacity to service these jobs a huge challenge They donthave the number of trucks and people in the field like a Waste Services does In doing my most recent job in Clearwater Waste Services was hauling 46 30 yard containers per day for a few days in a row and kept up nicely I had the same situation down the street in Largo and they could only service 2 per day because they were overloaded and understaffed They didnt have the fleet or man power to do the job This slows progress costs me more money and is an all around inconvenience This coupled with the fact if they City of Clearwater Garbage division performs anything like the Building Department and building inspectors do we are really in for a disaster The client Imost recently finished a job for in Clearwater after numerous delays primarily in permitting vowed to never open another business in the city ofClearwater again His experience was the worst he recalled in 20 years of opening businesses around the state Before the city of Clearwater considers going into the Garbage collection business they should focus on the core income producers they already have in place and fine tune them Is it not enough that the City already tacks on 15 collection to private haulers to begin with This hurts the haulers and the businesses using them I urge you to reconsider this decision Sincerely Jason Stross Broderick Stross Construction LLC 5514 Park Blvd Pinellas Park FL 33781 On Mon Feb 1 2010 at 233PM Brianna Branigan bbranii anawasteservicesinccomwrote Good afternoon Jason 40 FFlorida Department of Environmental Protection Southwest District 13051 North Telecom Parkway Temple Terrace Florida 336370926 Telephone 8136327600 CERTIFIED MAIL 70083230000271956069 RETURN RECEIPT REQUESTED NOTICE OF PERMIT Waste Services of Florida Inc 5002 TRexAvenue Suite 200 Boca Raton F1 33431 Co Mr Shawn McCash Sr Vice President Dear Mr McCash Charlie Crist Governor Jeff Kottkamp Lt Governor Michael W Sole Secretary September 10 2009 Permit No 142414008SO31 County Pinellas WACS Facility ID NoSWD5249647 Enclosed is operation Permit Number 142414008SO31issued pursuant to Sections 4030871Florida Statutes to continue operation of the Clearwater Materials waste Processing Facility located at 12875 60th Street North Clearwater Pinellas County Florida The Departmentsproposed agency action shall become final unless a timely petition for an administrative hearing is filed under Sections 120569 and 12057 Florida Statutes FS before the deadline for filing a petition The procedures for petitioning for a hearing are set forth below A person whose substantial interests are affected by the Departmentsproposed permitting decision may petition for an administrative proceeding hearing under sections 120569 and 12057 FS The petition must contain the information set forth below and must be filed received in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard Mail Station 35 Tallahassee Florida 32399 3000 Petitions by the applicant or any of the parties listed below must be filed within 14 days of receipt of this written notice Petitions filed by other persons must be filed within 14 days of publication of the notice or receipt of the written notice whichever occurs first Under Section 120603FS however any person who asked the Department for notice of agency action may file a petition within fourteen days of receipt of such notice regardless of the date of publication The petitioner shall mail a copy of the petition to the applicant at the address indicated above at the time of filing The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that persons right to request an administrative determination Waste Services of FloridaInc Mr Shawn McCash Sr Vice President Permit No 142414008SO31 Page 2 hearing under sections 120569 and 12057 FS or to intervene in this proceeding and participate as a party to it Any subsequent intervention in a proceeding initiated by another party will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28106205 FAC A petition that disputes the material facts on which the Departmentsaction is based must contain the following information a The name address and telephone number of each petitioner the applicants name and address the Department File Number and the county in which the project is proposed b A statement of how and when each petitioner received notice of the Departmentsaction or proposed action c A statement of how each petitioners substantial interests are or will be affected by the Departmentsaction or proposed action d A statement of all material facts disputed by petitioner or a statement that there are no disputed facts e A statement of the ultimate facts alleged including a statement of the specific facts which the petitioner contends warrant reversal or modification of the Departmentsaction or proposed action fA statement of the specific rules or statutes the petitioner contends require reversal or modification of the Departments action or proposed action and g A statement of the relief sought by the petitioner stating precisely the action the petitioner wants the Department to take with respect to the Departments action or proposed action A petition that does not dispute the material facts on which the Departments action is based shall state that no such facts are in dispute and otherwise shall contain the same information as set forth above as required by Rule 28106301 FAC Because the administrative hearing process is designed to formulate final agency action the filing of a petition means that the Departments final action may be different from the position taken by it in this notice Persons whose substantial interests will be affected by any such final decision of the Department have the right to petition to become a party to the proceeding in accordance with the requirements set forth above In accordance with section 120573 FS the Department advises that mediation is not available in this case under the provisions of that statute This does not prevent any interested parties from agreeing to other forms of alternate dispute resolution Waste Services of Floridalnc Mr Shawn McCash Sr Vice President C Permit No 142414008SO31 Page 3 Any party to this order has the right to seek judicial review of it under Section 12068 FS by filing a notice of appeal under Rule 9110 Florida Rules of Appellate Procedure with the clerk of the Department in the office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee Florida 323993000 and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal The notice of appeal must be filed within thirty days after this order is filed with the clerk of the Department Executed in Hillsborough County Florida STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION borah A Getzoff District Director Southwest District DAGndg Attachment Copies furnished to Pinellas County Board of County Commissioners Pinellas County Notification List Juan Quiroz PEGeosyntec Consultants jdquiroz@geosynteccom Ronni Moore OGC Tallahassee Richard Tedder PE FDEP Tallahassee Fred wickFrank Hornbrook FDEP Tallahassee Susan Pelz PE FDEP SWD Permit Notebook CERTIFICATE OF SERVICE This undersigned duly designated deputy clerk hereby certifies that this NOTICE OF PERMIT was mailed to the addressee and either mailed or transmitted e ectronically to the listed persons before the close of business on A A U date FILING AND ACKNOWLEDGMENT FILED on this date pursuant to Section 1205211 Florida Statutes with the designated Department Clerk receipt of which is hereby acknowledged t o Clerk Date Statutes Constitution View Statutes X2009Ch0403Section 7046 Online Sunshine Page 1 of 3 E Select Year F 2009 The 2009 Florida Statutes TitleMIX Chapter403 MewEntireChapter PUBLIC HEALTH ENVIRONMENTAL CONTROL 4037046 Regulation of recovered materials 1 Any person who handles purchases receives recovers sells or is an end user of recovered materials shall annually certify to the department on forms provided by the department The department may by rule exempt from this requirement generators of recovered materials persons who handle or sell recovered materials as an activity which is incidental to the normal primary business activities of that person or persons who handle purchase receive recover sell or are end users of recovered materials in small quantities as defined by the department The department shall adopt rules for the certification of and reporting by such persons and shall establish criteria for revocation of such certification Prior to the adoption of such rules the department shall appoint a technical advisory committee of no more than nine persons including at a minimum representatives of the Ftorida Association of Counties the Florida League of Cities the Florida Recyclers Association and the Florida Chapter of the National Solid Waste Management Association to aid in the development of such rules Such rules shall be designed to elicit at a minimum the amount and types of recovered materials handled by registrants and the amount and disposal site or name of person with whom such disposal was arranged of any solid waste generated by such facility Such rules may provide for the department to conduct periodic inspections The department may charge a fee of up to 50 for each registration which shall be deposited into the Solid Waste Management Trust Fund for implementation of the program 2 Information reported pursuant to the requirements of this section or any rule adopted pursuant to this section which if disclosed would reveal a trade secret as defined in s 8120811cis confidential and exempt from the provisions of s 119071 For reporting or information purposes however the department may provide this information in such form that the names of the persons reporting such information and the specific information reported are not revealed 3 Except as otherwise provided in this section or pursuant to a special act in effect on or before January 1 1993 a local government may not require a commercial establishment that generates source separated recovered materials to sell or otherwise convey its recovered materials to the local government or to a facility designated by the local government nor may the local government restrict such a generators right to sell or otherwise convey such recovered materials to any properly certified recovered materials dealer who has satisfied the requirements of this section A local government may not enact any ordinance that prevents such a dealer from entering into a contract with a commercial establishment to purchase collect transport process or receive Oourceseparatedyecovered materials httpwwwlegstateflusstatutesindexcfinAppmodeDisplayStatuteSearchString 9242009 Statutes Constitution View Statutes X2009Ch0403 Section 7046 Online Sunshine Page 2 of 3 a The local government may require that the recovered materials generated at the commercial establishment be source separated at the premises of the commercial establishment b Prior to engaging in business within the jurisdiction of the local government a recovered materials dealer must provide the local government with a copy of the certification provided for in this section In addition the local government may establish a registration process whereby a recovered materials dealer must register with the local government prior to engaging in business within the jurisdiction of the local government Such registration process is limited to requiring the dealer to register its name including the owner or operator of the dealer and if the dealer is a business entity its general or limited partners its corporate officers and directors its permanent place of business evidence of its certification under this section and a certification that the recovered materials will be processed at a recovered materials processing facility satisfying the requirements of this section AU counties and municipalities whose population exceeds 35000 according to the population estimates determined pursuant to s 16MI may establish a reporting process which shall be limited to the regulations reporting format and reporting frequency established by the department pursuant to this section which shall at a minimum include requiring the dealer to identify the types and approximate amount of recovered materials collected recycled or reused during the reporting period the approximate percentageofrecovered materials reused stored or delivered to a recovered materials processing facility or disposed of in a solid waste disposal facility and the locations where any recovered materials were disposed of as solid waste Information reported under this subsection which if disclosed would reveal a trade secret as defined in s 8120811cis confidential and exempt from the provisions of s 24a Art I of the State Constitution and s 11201 The local government may charge the dealer a registration fee commensurate with and no greater than the cost incurred by the local government in operating its registration program Registration program costs are limited to those costs associated with the activities described in this paragraph Any reporting or registration process established by a local government with regard to recovered materials shall be governed by the provisions of this section and department rules promulgated pursuant thereto c A local government may establish a process in which the local government may temporarily or permanently revoke the authority of a recovered materials dealer to do business within the local government if the local government finds the recovered materials dealer after reasonable notice of the charges and an opportunity to be heard by an impartial party has consistently and repeatedly violated state or local laws ordinances rules and regulations d In addition to any other authority provided by law a local government is hereby expressly authorized to prohibit a person or entity not certified under this section from doing business within the jurisdiction of the local government to enter into a nonexclusive franchise or to otherwise provide for the collection transportation and processing of recovered materials at commercial establishments provided that a local government may not require a certified recovered materials dealer to enter into such franchise agreement in order to enter into a contract with any commercial establishment located within the local governments jurisdiction to purchase collect transport process or receive source separated recovered materials and to enter into an exclusive franchise or to otherwise provide for the exclusive collection transportation and processing of recovered materials at singlefamily or j multifamily residential properties httpwwwlegstateflusstatutesindexcfnAppjmodeDisplayStatuteSearchStriag 9242009 Statutes Constitution View Statutes X2009Ch0403Section 7046 Online Sunshine Page 3 of 3 A e Nothing in this section shall prohibit a local government from enacting ordinances designed to protect the publicsgeneral health safety and welfare f is used in this section 1 Commercial establishment means a property or properties zoned or used for commercial or industrial uses or used by an entity exempt from taxation under s 501c3of the Internal Revenue Code and excludes property or properties zoned or used for singlefamily residential or multifamily residential uses 2 Local government means a county or municipality 3 Certified recovered materials dealer means a dealer certified under this section Historys12 ch 93207 s 5 ch 95311 s 2 ch 95366 s 240 ch 96406 s 17 ch 2000211 s 5 ch 2000304 Copyright C 19952009 The Florida Legislature PrivacyStatement Conta0 tls httpwwwlegstateflusstatuteshndexcfmAppimodeDisplay5tatuteSearchString9242009 Statutes Constitution View Statutes X2008Ch0403Section 7032 flsenategov Page 1 of 1 Select Year 2009 l The 2oog Florida Statutes TitleXXIX Chapter 403 View Entire ChapterPUBLICHEALTHENVIRONMENTALCONTROL 4037032 Recycling 1 The Legislature finds that the failure or inability to economically recover material and energy resources from solid waste results in the unnecessary waste and depletion of our natural resources As the state continues to grow so will the potential amount of discarded material that must be treated and disposed of necessitating the improvement of solid waste collection and disposal Therefore the maximum recycling and reuse of such resources are considered highpriority goals of the state 2 By the year 2020 the longterm goal for the recycling efforts of state and local governmental entities private companies and organizations and the general public is to reduce the amount of recyclable solid waste disposed of in waste management facilities landfills or incineration facilities by a statewide average of at least 75 percent However any solid waste used for the production of renewable energy shall count toward the longterm recycling goal as set forth in this section 3 The Department of Environmental Protection halldevelop a comprehensive recycling program that is designed to achieve the percentage under subsection 2 and submit the program to the President of the Senate and the Speaker of the House of Representatives by January 1 2010 The program may not be implemented until approved by the Legislature The program must be developed in coordination with input from state and local entities private businesses and the public Under the program recyclable materials shall include but are not limited to metals paper glass plastic textile rubber materials and mulch Components of the program shall include but are not limited to a Programs to identify environmentally preferable purchasing practices to encourage the purchase of recycled durable and less toxic goods b Programs to educate students in grades K12 in the benefits of and proper techniques for recycling c Programs for statewide recognition of successful recycling efforts by schools businesses public groups and private citizens d Programs for municipalities and counties to develop and implement efficient recycling efforts to return valuable materials to productive use conserve energy and protect natural resources e Programs by which the department can provide technical assistance to municipalities and counties in support of their recycling efforts f Programs to educate and train the public in proper recycling efforts g Evaluation of how financial assistance can best be provided to municipalities and counties in support of their recycling efforts h Evaluation of why existing waste management and recycling programs in the state have not been better used Historys 95 ch 2008227 Disclaimer The information on this system is unverified The journals or printed bills of the respective chambers should be consulted for official purposes Copyright 20002006 State of Florida httpwwwflsenategovStatutesindexcfinp2AppmodeDisplayStatuteSearchStri 242010 The 75 Recycling Goal Main Page I Division of Waste Management Florida DEP Page l of 1 r r P M DEP Home AboutDEP Programs Contact Site map Search Programs Waste Home Petroleum Storage Systems Solid and Hazardoyws Waste Waste Cleanup 75 Recycling Goal Highlights Information DiyiiQn Bureau coniacts y RatdRePort5 n DEP Public NOticE5 Division Public Noticgs EDr15 News P WILCaU4n and ReporLs RuIes 1 i1r x 75 j Recycling Goal Kau Pdge amPrTheEnergyClimateChangeandEconomicSecuritygyr Act of 2008 House Bill 7135 signed into law by Components Governor Crist created Section 4037032 Florida Public Statutes This establishes a new statewide recycling Foam goal of 75 to be achieved by the year 2020 Also Pu bli c the statute directs PEP to develop a program designed to achieve this goal and submit it to the Legislature for approval by January 1 2010 5taStatutQ z 75 DEP sought input from all interested parties to assist Recycling us in the development of that program This web Remr4pagewasakeycomponentinsharinginformationi and soliciting feedback from various stakeholders 111t DEPs7oCVSSlLIinCGOaI R122r3 has been PEP submitted to the Governor Senate President Recycling Main and House Speaker Pagg Pu6Licmeetings Information about all public meetings we held regarding the new recycling goal The final public meeting was held on November 5 2009 in Tallahassee N Public forum Share your thoughts suggestions and comments via our webbased forum and view the contributions of other participants Navigation u Tics Recyclingprogram comnojjglnxsThe statute lists several specific components that are to be L ite Map addressed in the recycling program recommendations we submit to the Legislature This web page will provide access to DEP information about those components while also soliciting feedback from the public Florida Statutes regarding resyshna In addition to the 75 recycling goal there are some other statutes that will affect either directly or indirectly the implementation of that goal UP recyclingmainpage Links to recycling data sources and programs If you have any questions or comments or you want to be added to our list of stakeholders to receive information by email please contact us at RecyclingG2d1@deotteflus Last updated January 04 2010 Bureau of Solid Hazardous Waste 8502458707 MS 4550 Division of waste Management 8502458705MS 4500 2600 Blair Stone Road Tallahassee Florida 323992400 Question or Comments Email RecyclinyGoa1@depstatefius httDwwwdeDstatefluswasterecvclinieoa75 242010 Construction and Demolition Debris Recycling and Disposal Main Page Solid Hazard Page 1 of 1 DEP HomePP PEP Programs Contact Site Map Search Programs Wastedcmfe Petteum Storage Systems aalidpad Ha3ardQus Waste Waste Clgnwp Information Division Bureau Co ntaots Data Reports DEP Public Notices Division Public Notices Forms Nw Publications andReports Rules Navigation Topics fSiteMaPA Construction and Demolition Debris Recycling and Disposal o Construction and Demolition Debris Recycling n r eti n and Demolition CD Debris accounts for almost 25 of Floridas total Municipal Solid Waste MSW stream A wide range of these materials can be recovered and reused or rgoycled into newprodycts In the spring of 2001 the FDEP compiled a report entitled Construction and emolition Debris Recycling in FIqrida which provides a comprehensive perspective of the CD industrysdebris management and recycling practices CD Debris Recycling and Disposal is tracked by the FDEP through annual reports from Counties and Permitted CD Facilities statewide in accordance with Elprid7Qdministaivetrpde270173012Debrisrecycled and disposed must be repQrtgd in tons by county of origin per instructions A cubicyardstotons conversonformulais provided to assist facilities without scales in fulfilling this reporting requirement Questions about the reporting requirement should be directed to suzanneboroff@depstateflus8502458718 In an effort to increase better understand the potential for and foster the recycling of CD Debris FDEP provided funding for several innovative CD Debris related projects This Ilnk includes information relating to drywall pressure treated lumber and shingles recycling Y CD links publicationsandothervaluable information TAKE THE WasteWise BUILDING CHALLENGE WasteWise EPAswaste reduction program for over 1200 business government and organizational partners is launching a WasteWise Building Challenge to get our partners to recycle and reuse more construction and demolition debris and buy recycled building products A special edition of the WasteWise Update entitled Building for the Future which discusses how to reduce construction and demolition debris waste is available online at wvvwpggvgpawastLAartnhslwatewiseJindexhtm Highlights Recycling Main Paoe 75 Recycling Goal AmericaRecycles I CSLmrne vialrand Institutional Recycling Construction Demolition Debris Re cyc l i ngnrJ Pi3pgsal Contacts Educational Resources Events Grants and Loans CreC gFIRrido Gpvernment 0 Innovative Grants All Years Publications Recovered Materials Certification Reporting Program Recycling FAOs Resources Retail BagReport Rules RelatedLaws plidWSte Mangemeltpta Waste Composition Models Construction Demolition Debris Menu M CD Main Page CD Definition 11 CD InnQVative Guagt 11 CD Products Uses PublicalionLinksi and Further CD RecyIin Asst0nce and Ir1formption CD Report Last updated March 24 2009 Bureau of Solid Hazardous Waste 8502458707 MS 4550 Division of waste Management 8502458705 MS 4500 2600 Blair Stone Road Tallahassee Florida 323992400 Qt1 i n amCi DEP Horne 19bsut4EP I S0YdGt115ISearch I ie MdD httpwwwdepstatefluswastecategoriesrecyclingcdcanddmainhtm 242010 Construction and Demolition Debris Recycling and Disposal Products and Uses Page I So Page 1 of 1 DEP Home 11601111 Programs Contact Site Map Search 4 Products and Uses CD Debris jd HighlightsPrograms1 WSteHQne Common Products and Uses of Recycled CD Debris Recyclin MainPa9e Pt rgleim Crushed concrete and brick used in road construction drainage 75 Recycling Goal Storage Concrete block masonry and other clean debris used as borrow pit fill America Rec clesystemsConcretetruckwashoutusedtomakeonsitecontainingwallsandbins Solid and Reusable building supplies such as lumber and whole bricks DAY Hazardous Remanufacture of woad chips into engineered woods G m rcial and Waste Wood fuels used in cogeneration plants and industrial boilers Institutional Waste Horticultural mulches made from natural woody material Recycling Cleanup Dyed decorative mulches made from construction debris wood ConrtirWoodchipsusedasbulkingagentinbiosolidscompostanimalbeddingDemolitionDebrisPlanksandotherdimensionallumbersawnfromwholetreesclinygnfteydinformationCorrugatedcardboardcontainers Division Metals steel aluminum other nonferrous J Disposal Bureau Recovered screened material RSM for DEP approved uses Contacts CQRtsa i E Sati2nI Data Reports I CD Recycling Options Resources DEP Public Several options exist for recycling CDwaste Waste can be separated EventsNoticesandprocessedandtheCDjobsiteitselfThisrequiresactiveparticipationGrants and LoansDivisionbytheCDcontractorTighteconomicsandtheneedforrapidcompletion Public of construction and demolition projects has limited this practice although r enin Flora Notices education continues in this area Most CD waste recycling takes place at Covernrnent Fgrrn5 materials recovery facilities MRFs where waste stream materials are Innovative Grants All News processed and separated Waste materials are separated by a combination Years Publications of mechanical and manual separation The process often involves crushing pblioatipnsandReportsthewasteintheearlystagesoftheprocesstoaidinthemechanical v r red MaterialsRecoseparationofthematerial Certification Markets for wood concrete and metal exist to accept these materials A Reporting Proaram Navigation major factor in the success of a recycling operation is the degree of Rec clip FA s P Topics contamination of the material Purity of the recovered product encourages ResourcesSiteMaphigherresalepricesProductpuritymaybereducedatsomeprocessingRetailBates R QP rtfacilitiesbecauseoftheaggressivehandlingofthemixedwastestream One of the largest products of a typical CD materials recovery facility is a Rules ReLatedLaws recovered soil fraction referred to in Florida as recovered screened SqltdWaste material or RSM This fraction accounts for 25 or more of the recovered ManAgeman Data waste stream at some facilities This material may be used as clean fill in Vyaste Composition offsite operations provided that the material is safe The presence of Models hazardous chemicals in the CD waste may limit the reuse options for RSM Policy guidelines have been developed by FDEP to approve reuse Construction project for RSM Demolition Debris Other Practices Menu Some CD management practices act to divert materials from landfill CD Main Page disposal but are not always considered recycling A common practice In DefinitionCAP South Florida is to use clean concrete as lake fill for the reclamation of Ctnnqvative borrow pits where excavation has resulted in the creation of permanent Qrants surface water bodies CD waste components are also sometimes used as CD Products U595 landfill cover This is the most common reuse practice for screened CD PublicatignsLinksfinesSomefacilitiescrushtheentireCDwastestreamormostofitandandFurtherCD use it as cover or road material in landfills Recycling Assistance Source Construction and Demolition Waste Management An Overview aA InfQrmatiQ0 By Timothy Townsend PhD Department of Environmental Engineering CD Report Sciences University of Florida Last updated March 24 2009 Bureau of Solid Hazardous Waste 8502458707 MS 4550 Division of Waste Management 8502458705 MS 4500 2600 Blair Stone Road Tallahassee Florida 323992400 Qu1 5tigns COrnmentSFQrm PEP Horne I A0outDEP1 contact Us I Search I Site Map httpwwwdepstatefluswastecategoriesrecyclingcdcanddproductshtm 242010 January 4 2010 GovcrnorFloridaDepartmentofar1ecrit Environmental Protection le11 Kottkamp It Governor Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Michael M Sole Tallahassee Florida 323993000 Sccrctar The Honorable Charlie Crist Governor of Florida Plaza Level 05 The Capitol 400 South Monroe Street Tallahassee Florida 323990001 The Honorable Jeff Atwater President The Florida Senate Room 312 Senate Office Building 404 South Monroe Street Tallahassee Florida 323991100 The Honorable Larry Cretul Speaker The Florida House of Representatives 420 The Capitol 402 South Monroe Street Tallahassee Florida 323991300 Dear Governor Crist President Atwater and Speaker Cretul I am pleased to submit the 75 Recycling Goal Report to the Legislature as required in section 4037032 Florida Statutes The Energy Climate Change and Economic Security Act of 2008 established a new statewide recycling goal of 75 by 2020 The Act directs the Florida Department of Environmental Protection DEP to submit to the Florida Legislature a comprehensive program to achieve this goal The information and recommendations in the enclosed report were developed based on extensive research and the invaluable contributions of stakeholders who participated in four public workshops An even wider range of ideas were submitted through DEPs Web forum and emails Florida generates more than 32 million tons of municipal solid waste annually almost two tons per resident per year Today more than two decades after the Legislature passed Floridas first 30 recycling goal Floridians collectively recycle only 28 of Mom Proffmion lass Process Iovwdellstaf0 to The Honorable Charlie Crist The Honorable Jeff Atwater The Honorable Larry Cretul January 4 2010 Page Two their solid waste This report explores ways to change that troublesome fact in an economical responsible way through heightened public awareness state leadership development and expansion of recycling markets and more investments throughout the local government and commercial sectors Todayseconomic climate presents a challenge Hence the report outlines initial steps low in financial impact but high in recycling value The recycling goal can be achieved It will require partnerships among state government local governments trade organizations schools businesses and industries and all Floridians This report outlines opportunities and actions available to achieve the goal and I look forward to working with you as you consider them If you have questions regarding this report please contact Mary Jean Yon Director of DEPs Division of Waste Management at 850 2458693 or MaEyleanYon@depstateflus Sincerely r Michael W Sole Secretary Enclosure cc The Honorable Lee Constantine Chair Senate Environinental Preservation Committee The Honorable Trudi Williams Chair House Agriculture and Natural Resources Conunittee Muni Drew Deputy Secretary Regulatory Programs DEP Cameron Cooper Director Office of Legislative Affairs DEP Mary Jean Yon Director Division of Waste Management DEP 75 Recycling Goal Report to the Legislature 0 0 Florida Department of Environmental Protection January 4 2010 2600 Blair Stone Road MS 4500 Tallahassee Florida 323992400 wwwdepstateflus Table of Contents Executive Summary 3 Acknowledgments 5 Introduction 6 Floridas Recycling History 6 Where Do We Start 7 The Role of Education 9 Ways to Better Handle Waste 11 Construction and Demolition CDDebris 12 Organic Waste 13 WastetoEnergy WTE 14 Commercial Recycling 14 Innovative Recycling Programs 17 PayAsYouThrowPAYT 17 RecycleBank 18 Zero Waste Zones Single Stream Recycling SSR19 Recycling Markets 19 How Do We Get There 20 Recommendations 20 The Long and Short of the 75 Recycling Goal 23 APPENDICES FIGURES 24 Appendix A Energy Climate Change and Economic Security Act of 2008 25 Appendix B Revenue Sources 26 Appendix C Supplemental Recommendations 30 Figure 1Tons of Municipal Solid Waste Collected in Florida Counties in 2007 33 Figure 2 Florida Municipal Solid Waste Collected in 2007 34 Figure 3 Florida Counties with WastetoEnergy Facilities 35 0 Page 2 of 35 F 1LA Executive Summary The municipal solid waste generated by 18 million Floridians and 80 million visitors every year more than 32 million tons is simply not environmentally sustainable Floridians cannot continue to discard valuable commodities when there are higher and better uses for those items The Florida Legislature recognized that fact and through the Energy Climate Change and Economic Security Act of 2008 established a new statewide recycling goalreduce the disposal of recyclables 75 by 2020 The law directs the Florida Department of Environmental Protection DEP to submit to the Legislature a comprehensive program to achieve 75 recycling by 2020 Accomplishing the goal will require commitment after the LeislaLure passed common sense and ingenuity This report lays Floridas hist goaloutthefactsandoutlinesrecommendationsand options that would make 75 by 2020 possible Implementing the recommendations and the other creative approaches they inevitably will stimulate requires action by DEP and other state agencies Floridas businesses and industries large and small local governments and residents everyone It will also demand market solutions smart economic choices and sensible regulations The information and recommendations in this report were developed based on extensive research and the invaluable contributions of stakeholders who participated in four public workshops An even wider range of ideas informed the discussion through DEPs Web forum which received nearly 12000 visits and provided a healthy dose of perspective As noted Florida generates more than 32 million tons of municipal solid waste annually closing in on two tons per resident per year More than two decades after the Legislature passed Floridas first recycling goal30 today Floridians collectively recycle only 28 of their solid waste This report explores ways to enhance recycling in an economically responsible way through heightened public awareness state leadership development and expansion of recycling markets and more bangforthe buck investments throughout the local government and commercial sectors Todayseconomic climate presents a challenge Hence this report includes cost information where possible to assist the reader and outlines initial steps low in financial impact but high in recycling value That said some actions are essential to achieving 75 recycling in all places at all times For example more recycling of construction and demolition CDdebris which constitute 25 of all municipal solid waste must occur As much as 12 of the 2020 recycling goal could be met by processing CD0Page3of35 debris at a 75 rate through materials recovery facilities all at relatively low cost and with an income source in recovered materials Organics food waste yard trash and paper represent 40 of municipal solid waste and also must be recycled at dramatically higher rates to meet the 2020 goal Although this will be challenging some large retailers like Publix Super Markets are already recycling food waste Recycling these materials yields quality paper to write on and products to improve soil conditions control erosion and produce fuel while reducing energy and keeping harmful pathogens and nutrients out of the environment The markets for goods made with recycled content must expand As with all markets some nurturing is essential through public education advertising financial incentives and disincentives and carefully targeted regulation Providing expert assistance to recycling startups and ongoing businesses including helping develop networks with local governments and commercial operations is also vital to comprehensive recycling New revenue sources such as tipping fees must be considered Ideas explored in more detail in this report include PayAsYouThrowRecycleBank Zero Waste Zones and Single Stream Recycling State government should lead by example investing more in recycling at every state office and university While the net impact on overall recycling is small the LABLE message would be clear recycling is possible practical and a priority No one should be able to point out a state agency as justification for not recycling At the same time local governments must step up The largest among them especially should each accept the 75 goal Right now Sarasota Countysrecycling program enforces commercial recycling and requires PayAs YouThrow giving it both the highest commercial 53 and overall 41 recycling rates in Florida a healthy start on 75 by 2020 The recycling goal can be achieved It will require partnerships among state government local governments trade organizations schools businesses and industries and all bright committed people with innovative ideas and practical solutions Certainly reducing waste is first and foremostusing fewer products with fewer waste materials fewer virgin materials lowerimpact materials and more recycled products But recycling goes hand in hand with waste reduction reclaiming valuable materials for productive uses opening new markets and economic opportunities freeing up landfill space for truly unrecoverable wastes and reducing the need for more highly unpopular landfills Additionally recycling provides potential sources of energy conserves natural resources and often requires less energy than the production of virgin materials These are the potential benefits of 75 by 2020 and this report outlines opportunities and actions available to achieve them Page 4 of 35 Acknowledgments The Florida Department of Environmental Protection DEP extends its gratitude to the many stakeholders from the public and private sectors that invested their time and contributed their insights to the development of this report through public meetings written comments and electronic submissions Four public meetings were held to exchange information and solicit input on achieving the 75 recycling goal by 2020 These meetings generated lively discussion and valuable information that helped produce this report September 22 2008 in Orlando 129 attendees December 2 2008 in Tallahassee 88 attendees August 4 2009 in Orlando 225 attendees November 5 2009 in Tallahassee 68 attendees DEP also established a webbasedforum for ongoing public comments and regular stakeholder updates Meeting summaries draft notes and other details as well as access to the webbasedforum can be found at wwwdepstatefluswasterecvclinggoal75defaulthtmThis site has been visited nearly 12000 times DEP also appreciates the professional associations and trade organizations that effectively represented their members interests and were critical in identifying recycling options and recommendations Associated Industries of Florida Florida Association of Counties Florida Beverage Association Florida Chapter of the National Solid Wastes Management Association Florida League of Cities Florida Recycling Partnership Florida Retail Federation Florida Sunshine Chapter of the Solid Waste Association of North America Heart of Florida Working Group Recycle Florida Today Small County Coalition 41 Page 5 of 35 Introduction The modern era of recycling in Florida began with the Florida Legislaturespassage of the Solid Waste Management Act SWMA of 1988 including a 30 recycling goal Twenty years later with a statewide recycling rate of only 28 the Legislature reasserted the importance of recycling and established a new goal 75 to be achieved by 2020 The Legislature directed the Florida Department of Environmental Protection DEP to submit this report including recommendations for consideration by January 1 2010 see Appendix A In 2007 Floridians and their visitors generated more than 32 million tons of municipal solid waste Figure 1 pictured in Appendices and Figures Imagine a fourlane highway of solid waste three feet deep extending from Tallahassee to Seattle Washington and back Over the past 15 years Floridas waste disposal into landfills has doubled more than 19 million tons buried in 2007 During this same period recycling in Florida has hovered at 28 Municipal solid waste contains a goldmine of materials that can be recycled but Florida must change its behaviors and practices to achieve the 75 recycling goal by 2020 FloridasRecycling History In 1988 the SWMA directed counties with populations greater than 50000 later increased to 100000 to achieve 30 recycling for municipal solid waste MSW Smaller counties were exempt from the goal as long as they provided their residents with an opportunity to recycle The SWMA has set and revised goals since that time for specific materials groups including aluminum cans steel cans newspaper plastic bottles cardboard office paper and yard trash The first ten years saw rapid growth in the states recycling rate going from an estimated 4 to 28 Floridas progress roughly mirrored most other states that were also establishing recycling goals during that period Since 1998 the states recycling rate has stagnated again mirroring the trends in most other states The 28 recycling rate in 2007 is based on the most recent available data and has almost certainly remained stable since then This translates to about nine million tons of MSW recycled each year Only 18 counties or about half of the counties with a population greater than 100000 exceed the 1988 county recycling goal of 30 0 Page 6 of 35 Recycling is now considered in most communities another utility service provided to residents by local government far different from 20 years ago Currently 287 of Floridas 414 cities and 29 of the 67 counties provide curbside collection service Thus some 15 million of the states 18 million residents have the opportunity to recycle Yet the recycling dynamic has to be changed to move from the 28 plateau and accomplish 75 recycling statewide Where Do We Start The first step is for state government to lead by example With approximately 170000 employees state government can have both a symbolic and a substantive impact on recycling directly and more significantly on the development of markets for goods made with recycled content State law enacted in 1988 encouraged state agencies to give preference to purchases that include recycled content The law also directed state agencies to report those purchases annually to the Florida Department of Management Services DMS and DMS in turn to report to the Governor and Legislature DMS suspended such reporting after 1999 but is now working cooperatively with DEP to review the most costeffectiveway to collect and report this information once again For the State of Florida to achieve the 75 recycling goal it must have the capability to manage and measure its progress This annual report will be an important tool to measure the progress state agencies are making toward increasing their recycling rates and helping to support recycling markets Given Floridas technological advances in procurement programs such as My Florida Market Place MFMP and the Florida Accounting Information Resource FLAIR the infrastructure is in place and only needs to be modified to report the required information DMS has advised that MFMP and FLAIR could be modified at an estimated cost of 50000 75000 to capture over 16000 recycled content or green products To record the government purchasing of materials with recycled content DEP recommends Modify the purchasing infrastructure to report information needed to meet the statutory requirement including documenting the purchase of products from virgin materials recycled content and any increases in the number of green purchases by state agencies Upgrade existing systems to capture the information in a meaningful report format to improve accountability Page 7 of 35 Equally important state employees should be able to recycle in all state office buildings Existing law already requires state agencies to implement recycling programs Unfortunately with the exception of some state office buildings in Tallahassee there is minimal data on how much recycling is happening especially in the rest of the state where most state office buildings are located The Office of Program Policy Analysis and Government Accountability OPPAGA issued a report to the Legislature in March 2002 stating that state government does a poor job recycling However state government has a higher potential for recycling because agencies universities and prisons use large quantities of paper and other recyclable products Accordingly the OPPAGA report indicates that state government recycling has the potential to impact Floridas recycling rate Despite the need to improve substantially there are recycling success stories in state government In March 2008 DEP the Agency for Persons with Disabilities APD and DMS entered into a partnership to enhance recycling opportunities in state office buildings while providing employment opportunities for APD residents of Sunland in Marianna 7 SPOTLIGHT The project initiated at DEPs Bob Martinez Center in Tallahassee focused on items not currently being recycled under existing contracts APD provided DEP with receptacles to collect plastic bottles and aluminum and tin cans on each floor and a mobile compartmentalized container outside the building at a cost of about 5000 to 8000 DMS staff collects the recyclables and APD then transports them to the Marianna facility about four times per year to get them market ready by sorting shredding and bailing DEFs Division of Waste Management has further expanded recycling by using the Sunland facility to shred and recycle all documents scanned into DEPs electronic document management system at no cost Since the inception of this partnership the Bob Martinez Center staff has recycled approximately two tons of plastic bottles and aluminum and tin cans saving an estimated ten cubic yards of landfill space or 430 in cost avoidance Although it has been successful at the Bob Martinez Center funding limitations preclude expanding the partnership to other state office buildings in the Tallahassee area at this time The 75 recycling goal is a general statewide goal that currently places no direct responsibility on any particular level of government or any other entity Because recycling programs are implemented at the local level local government plays an even more important role than state government in reaching 75 recycling Page 8 of 35 The SWMA assigned waste management responsibilities to the counties in 1988 Since then the counties as well as many cities have been active in recycling but confront many challenges evidenced by the fact that the state recycling rate has fluctuated between 24 and 28 since 1998 It is much more difficult to achieve high recycling rates in small counties than in large ones In most instances the small population density precludes cost effective use of curbside collection programs leaving those counties to rely on citizens willing to drive often several miles to drop off their recyclables Thus the Legislature exempted small counties from having to reach the original 30 recycling goal Regardless of size recycling programs in Floridas counties have struggled in the past for a number of reasons including Lack of public education and training for recycling Little emphasis on organics food paper yard trash recycling and construction demolition CD recycling Little emphasis on the broad commercial sector and multifamily units and Underutilization of incentive programs for the residential sector such as PayAs YouThrow PAYT and RecycleBank Local governments have been helpful and informative stakeholders throughout the development of this report and they are crucial to success Both the Florida Association of Counties and the Florida League of Cities along with several individual local governments have expressed their willingness to invest in the costs of reaching the new goal However they have advised that they cannot carry the entire cost and will need financial assistance for both capital and noncapital expenses Currently there are two limited grant programs for local government recycling programs and one of them is strictly for counties with a population under 100000 which have relatively little impact on state recycling rates To achieve 75 recycling by 2020 consideration will have to be given to revamping and expanding financial assistance programs and finding other ways to inject capital into the system Ideas for generating revenues are detailed in Appendix B The Role of Education Reaching 75 recycling will also require increased education in Floridas K12 public schools for the estimated 33million students 2008 The Florida Department of Education DOE is required to educate K12students in recycling by developing curriculum materials and resource guides for recycling awareness programs Over the years curriculum such as the 4Rs Reduce Reuse Recycle and Recover and its is Page 9 of 35 replacement Solid Choices have been developed but were not used by all school districts sometimes for lack of money Curriculum is important but the best recycling lesson involves students recycling at school a message they will carry home J1 Twentyfive counties responded to a survey conducted by DEP in November 2009 on recycling practices in public schools The survey found that 1376 or about 88 of the 1569 schools have some form of recycling program in place The cost for implementing a recycling program within each school will be dependent on the size of the school its location and the extent of recycling infrastructure available in the area These programs increase recycling and more significantly help promote a culture of recycling and environmental stewardship in the students and their families The following highlights three school districts and the recycling success they have had They are models for the kinds of actions that other school districts can take The District School Board of Pasco County has one of the longest running and most successful recycling programs in Florida recognized by a host of awards Typical of well run recycling programs Pasco Countysprogram saves money For fiscal year 2008 the county earned 69000 from the sale of recyclable materials with a landfill cost avoidance of 145000 The Palm Beach County School District has a recycling program in the Districts Environmental Control Office with a full time staff person that has facilitated recycling in more than 30 local schools The District also has an Environmental Preferable Procurement Policy Energy and Resource Conservation Policy and an Indoor Air Quality Policy In addition Palm Beach County developed a Green School Recognition Program for public and private schools that encourage a culture of sustainability The Broward County School District also has a strong recycling program by partnering with the School Board County Commissioners and the County Recycling and Contracts Administration Division The program encompasses three major elements collection education and tracking Since its inception in 1992 the recycling program has been recognized nationally as an innovative example of excellence Existing school recycling programs generally address paper aluminum cans and sometimes plastic bottles Another area that has the potential to increase overall school recycling involves food wastes and composting 0 Page 10 of 35 Each student produces about 05pounds of total waste per school day Studies demonstrate that approximately 32 of this school waste stream is organic waste Therefore a school of 1000 students generates around 500 pounds of waste per day of which 160 pounds is organic waste Assuming a statewide average of 200 school days per year about 32000 lbs 16 tons of organic waste is generated each year Data from the Florida Department of Education shows that there are about 33 million students in over 3700 K12public schools in the state 1926 elementary 594 middle 870 high and 341 combination schools Those 33 million students generate almost 53000 tons of organic waste every year Although not in widespread use establishing composting units at these schools would provide many benefits in addition to increasing the recycling rate Assuming a 44 ton average tip fee a school with 1000 students would save approximately 704 per year in tipping fees avoided Additionally a school of 1000 students would produce the equivalent of 1280 251b bags of organic material or compost This could be used to offset the cost of grounds maintenance at the school or other county properties as it would provide a high quality soil amendment It could also offset the cost for operation of a school greenhouse The startup costs are relatively minimal There are several commercial duty compost units available on the market On the average a unit capable of handling waste for a school of 1000 students would cost between 6000 and 10000 However compost units can be built fairly inexpensively by some school shop staff But the real value is in education Composting on the school site provides an opportunity to teach the students about the biological aspects of composting and the economic benefits of garbage being put to use to save the school money Ways to Setter Handle Waste As previously noted 60 of Floridas MSW is disposed of in landfills while only 28 is recycled Increasing Floridas recycling rate means this dynamic must shift There are a variety of better ways to manage different waste streams outlined below along with ideas for encouraging more recycling and waste reduction These are the areas where Florida can get the biggest return on its recycling investment Florida Municipal Solid Waste Management 120071 Combusted ls 4ndeued sex 2LippRecycled Page 11 of 35 progress here sooner rather than later is essential to reaching 75 recycling by 2020 s Construction and Demolition CD Debris Construction and demolition debris CDconsists of materials that are generated from residential and commercial building renovations and various types of demolition CDmaterials include wood steel glass brick concrete asphalt wallboard rocks soils tree remains trees and other vegetative matter Only nonwater soluble and nonhazardous materials are considered CD Currently Florida has 83 landfills and 75 CD disposal sites where CD can be disposed Most CD disposal sites are unlined and are not required to have daily cover like permitted landfills Therefore disposal at these facilities is cheaper but more environmentally problematic Costs increase in South Florida where there are large permitted CD recycling operations A large portion of CDdebris is recyclableapproximately 5 is metal 9 is asphalt brick or concrete and 30 is wood The cost associated with requiring each of these facilities to screen and process recyclables prior to disposal is dependent on the facilitys size location and the sophistication of the material recovery operation Small operations 50250 tons per day could meet minimal requirements by utilizing rolloff containers to segregate and divert recyclables Rolloffcontainers can be purchased for 1500 per container Manpower operational plans and equipment needed to segregate recyclables could be modified to run this type of material recovery without high capital outlay Operational costs could be offset by the value of recyclables Recycling asphalt brick and concrete would be extremely useful in aggregatepoor areas of the southern United States such as Florida Cost estimates for a larger free standing Materials Recovery Facility vary according to geographic location A North Florida facility processing 500 tons per day of construction and demolition debris reports an estimated capital cost of 75 million to become operational while a South Florida facility that processes 2500 tons per day or more reports an estimated capital cost of 136 million Page 12 of 35 According to the county recycling reports submitted to the DEP for 2007 61 million tons of CD was disposed in Floridas 75 CD disposal sites CD constitutes 25 of Floridas MSW waste stream or 82 million tons Figure 2 in Appendices and Figures Currently only 27 or 21 million tons of Floridas CDis recycled Because of the major impact this sector has on the overall state recycling rate DEP recommends Require all mixed loads of CD to be processed at a materials recovery facility prior to disposal Add sorting operations at the front end of existing CD disposal facilities Sorting CD should make it more costeffective to recycle materials than dispose of them Implementing these practices would involve little or no increase in costs to the generators of CD even in central and north Florida where disposal rates are cheapest There may even be savings in areas where there are more materials recovery facilities because of increased competition If CD achieved a 75 recycling rate it alone would increase the current statewide MSW recycling rate to more than 40 Organic Waste Of the 323 million tons of MSW generated in Florida approximately 40 is organic materials such as food waste yard trash and paper The recycling rate for food waste is 14 37 for yard trash and 27 for paper By encouraging the flow of these materials to organics recycling centers a number of environmental benefits could be realized including diversion of organic waste from incineration and landfill treatment of pathogenic organisms stabilization of nutrients and other organic compounds and phosphorus recycling Recycled organics have many benefits including erosion control moisture retention improved soil texture improved soil ecology increased soil organic matter content and production of alternate fuels Floridas counties play a crucial role in organics recycling because they handle large amounts of organic wastes from all sources State regulations market conditions and other economic circumstances all affect the potential success of organics recycling in Page 13 of 35 Florida State programs can stimulate technological advances and new uses through market development and procurement policies Detailed recommendations for helping to create an environment that supports a healthy and growing organics recycling industry can be found in Appendix C Consideration of those recommendations is important but so is simply encouraging and creating opportunities for backyard composting and grass clipping management among homeowners two of the best methods for managing residential organic wastes WastetoEnergy ME WastetoEnergy WTE is the process of creating energy in the form of electricity from the incineration of waste Recycling operations at Floridas 12 WTE facilities could account for roughly 12 of the 75 goal Through the mass combustion of MSW and refusederived fuel Floridas WTE facilities generate 325 million megawatts of energy per year which is enough electricity to fuel the 300000 households in Duval County for one year There are ten Florida counties where WTE facilities are located Figtre 3 pictured in Appendices and Figures The law allows renewable energy from solid waste to count towards the 75 goal However measuring that contribution presents a challenge Consequently DEP intends to appoint an ad hoc Technical Advisory Group to help develop a methodology for calculating and crediting WTE production Commercial Recycling For Florida a few key statistics suggest a general strategy for achieving the 75 recycling goal For example the commercial sector generates 67 of MSW twice the amount generated by the singlefamily residential sector The commercial sector has a current recycling rate of 30 Even if the residential sector were to recycle everything every day the new recycling goal could not be achieved without substantially increasing recycling from the commercial sector Of the 414 city and 67 county governments in the state 61 cities and eight counties have some form of Florida MSW Collected By Generator Type 2007 Residential Single Family 33 Commercial 67 mandatory commercial recycling affecting about 52 million people mostly in Miami Dade and Volusia counties Enforcement and technical assistance vary greatly among those jurisdictions from none to very active which is reflected in their commercial Page 14 of 35 sector recycling rates Sarasota County and Lee County have active programs to assist with compliance of their mandatory commercial recycling requirements Sarasota County began requiring commercial recycling in 1991 as the result of a referendum vote by the citizens Since the program is almost twenty years old no information on startup costs is readily available Commercial customers pay the collection costs but the SUCCESSmajoritysavemoneyduetoreducedwastecollectioncosts for their remaining waste stream This is where the main SPOTLIGHT economic benefit of the countys commercial recycling program occurs but the amount varies greatly depending on the amount of recyclable materials generated For instance a major swimming pool and deck renovating business was able to save 2300 in one year by increasing the amount of recyclable materials it diverted from its waste dumpster A major restaurant in Sarasota County saved 1125 in one year by recycling more The county receives no revenue from commercial sector recycling The collectors of the recyclables can keep whatever revenues they generate from sales of the recyclables The only cost to the county is two fulltime staff that provides education and training to the commercial sector The initial recycling rate of a business increases after training to as much as 90 This education process coupled with the mandatory recycling ordinance has resulted in a commercial recycling rate of 53 for the county Sarasota County has the highest overall recycling rate 41 in the state Lee Countysmandatory commercial recycling program began in January 2008 There were no startup costs to the county except for one fulltime staff that provides education and training to the commercial sector As with Sarasota County the commercial customers pay the collection costs most businesses save money due to reduced disposal costs and the vendors who collect the recyclables keep the generated revenue All businesses participate and it onlyMomtook15yearsofeducationandtrainingforbusinessesto comply no enforcement action was needed While mandatory commercial recycling in Florida is limited there are retail establishments already taking steps to institute green practices in their operations such as Target Walmart and Publix These companies demonstrate that voluntary initiatives can jumpstart environmental stewardship and serve as models for others to increase the commercial recycling of plastic and cardboard and in some cases food waste Examples include selling or giving away millions of reusable bags using bags made with recycled content and using stronger bags that can hold more weight so fewer bags are needed These voluntary initiatives can be recognized nurtured and integrated into more comprehensive binding recycling strategies 0 Page 15 of 35 Because of the huge impact the commercial sector has on theoverall state recycling rate DEP recommends Require commercial recycling in counties with a population greater than 100000 and cities with a population greater than 50000 E This approach would cover approximately 95 of Floridas population and about the same percentage of MSW generated yielding the biggest recycling bang for the buck and leaving smaller local governments to develop programs tailored to their lower population densities and limited resources Recycling at a 75 rate in the commercial sector would by itself boost the statewide MSW recycling rate from 28 to 59 States that have implemented mandatory commercial recycling include Pennsylvania Rhode Island New Jersey Wisconsin and to a lesser degree North Carolina Each state measures recycling differently which makes meaningful comparisons difficult For instance the State of New Jersey counts its automobile recycling industry which elevates its recycling rate to 57 Because of the way MSW is collected the traditional definition of a commercial account includes not only retail establishments and business offices but also multifamily residential units apartments condominiums etc and institutional accounts such as colleges schools and hospitals Federal state and local government offices also are included One way to account for this broad spectrum in increasing Floridas recycling rate would be a phased approach requiring commercial recycling first whether all at once or in some staggered fashion from all components except multifamily residential units which could be included later Fortunately most commercial establishments should end up saving money by recycling with the possible exception of the smallest such establishments Savings would vary across the state because commercial waste disposal costs vary from community to community Increasing the recycling rate for this sector would be expedited if local governments are able to network with and provide education and technical assistance to commercial customers Page 16 of 35 r U 11 Innovative Recycling Programs There are innovative approaches available to help increase recycling rates some of which are already in effect in Florida Some of these approaches are discussed below Public education and training about recycling are essential companions to every option PayAsYouThrowPAYT PayAsYouThrowPAYT is an incentive system that puts trash on the same utility basis as electricity water and other services the more you use the more you pay In a PAYT program customers pay less for collection and disposal of MSW if they generate less an incentive to fill up the recycling container rather than the trash can While there are about 7000 PAYT programs nationwide there are only a handful of communities in Florida that have implemented this program such as Gainesville and Plantation In Gainesville the program netted an 18 decrease in the amount ofwaste collected and a 25 increase in recyclables recovered during its first year alone Even more it resulted in a savings of 186200 to customers Implementing PAYT in Florida offers promise Cities across the United States including Dover New Hampshire Falmouth Maine Ft Collins Colorado San Jose California South Kingstown Rhode Island Vancouver Washington and Poquoson Virginia report increased recycling ranging from 25 to 69 in the first year decreased waste disposal and avoided disposal fees During 2006 Skumatz Economic Research Associates under contract to the US Environmental Protection Agency EPA conducted a study of 1300 communities across the country with PAYT programs The report concludes PAYT is the most effective single action that can increase recycling and diversion in the residential sector Number of Communities with PAYT Available 8000 7000 m 6000 5000 4000 3000 2000 1000 090 1989 1993 1997 2001 2006 Source Skumatz Economic Research Associates surveys The study further shows that implementing PAYT had a larger impact on recycling than did adding additional materials changing frequency of collection or other changes and modifications to programs Data collected from more than 1000 communities using PAYT revealed the following Page 17 of 35 Waste disposal decreases by 1617 which also saves money by avoiding disposal fees Communities with populations greater than 100000 would see a reduction in disposal of about 84000 tons and an increase in recycling tonnage by about 5500 tons Recycling increases approximately 50 Material diverted from disposal for recycling was 11 of the MSW in nonPAYT communities versus 14 in PAYT communities Yard waste diverted from disposal for recycling was 13 versus 17 Overall diversion from disposal was 26 versus 32 and PAYT has not increased costs for 66 of the communities implementing it EPA has developed the Saving Money and Reducing Trash Benefit Evaluation Tool SMART BET designed to help community waste managers decide whether PAYT is the right model for them This tool is available online at wwwepagovpayt RecycleBank RecycleBank another program for the residential sector is similar to PAYT except it rewards customers for increased recycling with discount coupons supplied by local vendors of goods and services The more items a customer places in the recycling container the more discount coupons the customer is awarded for use in local retail establishments RecycleBank is a private organization that works with interested communities to set up its system In March 2009 it launched its first program in Florida with the city of North Miami Early indications show recycling has substantially increased in areas where previously there was little To date RecycleBank and traditional PAYT programs have been implemented separately However another option is to implement the two programs concurrently in the same area which should result in more waste reduction and recycling than either program by itself Zero Waste Zones The concept of Zero Waste Zones is relatively new with very few areas designated However it has the potential to change the way waste is managed and reduced A Zero Waste Zone is as it sayswhat is produced is consumed or recycled not thrown away Waste is no longer trash but future goods and potential income In the southeastern United States downtown Atlanta is the only area that has committed in 2009 to becoming a Zero Waste Zone with a goal of diverting the maximum amount of recyclable items and organic matter from landfills back into the production cycle Interest in the concept seems to be increasing but there is not enough data to determine if a significant number of localities will implement it Page 18 of 35 Single Stream Recycling SSR Single Stream Recycling SSR appears to have greatly increased recycling rates in jurisdictions where it has been implemented With SSR all recyclable material is placed in a large wheeled recycling cart Recyclable material does not need to be separated by the residentunfortunately a major deterrent to recycling but is commingled in the large recycling cart Curbside collection occurs and the recyclable material cardboard glass paper aluminum and metal is later segregated at a processing facility In 2005 Waste Management Inc WM piloted the first Single Stream Recycling System SSR in Florida at the Recyclable Materials Processing Facility RMPF for Orange County and launched a second project at its Pembroke Pines facility in 2007 Single stream recycling promises increased landfill diversion energy savings and conservation and resource utilization compared to other recycling methods WM reports that by operating SSR collection systems for Florida residents a much higher efficiency per unit collected is experienced Specifically after a full year of SSR operation at its Pembroke Pines facility and its Orange County RMPF the growth in recyclables diverted from landfills through WM facilities was 68688 tons or an average increase of 29 Collier County started single stream recycling in 2005 and the volume of recyclables collected increased by 55 The purchase of new single stream recycling carts was amortized on the solid waste management charge to customers The county views the main benefit of single stream recycling as the extension of SUCCESS landfill life caused by more materials being recycled rather SPOTLIGITT than disposed However there were no numbers readily available as to how much landfill life extension could be attributed to single stream recycling The county receives no revenue from recyclables collected through single stream recycling The vendors who collect recyclables can keep whatever revenues they generate from sales of recyclables Some concerns have been raised by end user markets such as the recycled paper industry about increased contamination of recyclable materials collected using SSR They contend that while more recyclables are collected curbside more recyclables end up in the landfill due to contamination resulting from commingled collection and processing with other recyclable materials SSR proponents assert that technology is improving to minimize the problem Recycling Markets Recycled products need markets and markets need both incentives to expand and streams of products to move Market development should focus on finding and promoting good markets for recyclables wherever they exist From an economic development perspective of course creating and building markets in Florida is the ideal 0 Page 19 of 35 There are two basic sectors of recyclable materials and they require two different approaches to market development Outofstatemarkets exist for traditional residential and business recyclables including bottles aluminum and steel cans paper plastic and glass These commodities travel well so the challenge is to improve markets within the state Markets are not well developed for organics including yard trash compost mulch and food waste Because of the nature of organics markets need to be developed much closer to the source of the recyclables Outofstatemarkets do not exist and are not feasible Because of the importance of market development for improving the costeffectiveness of recycling DEP recommends The creation of a recycling business assistance center similar to what was proposed in Senate Bill 1462 during the 2009 Legislative Session The center should focus on promoting markets for the entire spectrum of recyclable MSW materials organic and inorganic Enterprise Florida offers a practical location for such a center and should work in partnership with DEP to identify and develop recycling markets How Do We Get There State government leadership is only one avenue to 75 recycling by 2020 Florida is fortunate to have groups such as Recycle Florida Today the Florida Sunshine Chapter of the Solid Waste Association of North America the Florida Chapter of the National Solid Wastes Management Association and the Southern Waste Information Exchange SWIX all of which are active in recycling These trade organizations have long running widely recognized and wellrespectedrecognition programs for recycling in both the public and private sector By continuing to work with these groups the state can honor the successful recycling efforts of schools businesses public groups and private citizens Recommendations The recommendations that follow many of which were identified earlier in the reportfocus largely on actions that promise the most environmental gain with the least economic impact to Floridasprivate and commercial sectors Not all of the recommendations can or should be implemented immediately but all are critical to Page 20 of 35 meeting the recycling goal DEP is working on several of these recommendations now to enhance the recycling program using existing resources Appendix C includes a list of supplementary recommendations that also warrant consideration The recommendations are generally listed beginning with the easiest and least costly recommendations State Government Require each state agency to meet the 75 goal Require each state agency to designate a single point of contact to coordinate with DMS regarding environmentally preferable purchasing issues and annually report to DMS its total expenditure on and use of products with recycled content and comparing that to the purchase of similar products made from virgin materials Develop a Web site that includes electronic brochures newsletters etc for DMS to use for recycling education and getting recycling started in state office buildings DEP should develop the Web site and help educate state office building managers in this initiative Modify the MFMP procurement system and FLAIR procurement for PCard purchases to capture and report specific commodity purchases for green products recycled materials and virgin materials Local Government Apply the new recycling goal to counties with a population greater than 100000 and cities with a population greater than 50000 capturing approximately 95 of the statespopulation and MSW generated Specify that local governments under the population thresholds do not have to meet the goal but must provide recycling opportunities to their residents Require commercial recycling in counties with a population greater than 100000 and cities with a population greater than 50000 Commercial in this context includes multifamily residential units apartments condominiums etc as well as institutional accounts such as schools and hospitals o Consider a phased approach to requiring commercial recycling focusing first on office buildings retail establishments and institutions and second on multifamily residential units Public Schools Direct all local school districts to implement recycling programs A local school district could be exempt if o There is no recycling facility within the county or within a reasonable distance in an adjoining geographic area or o The district cannot locate a recycling vendor to service the school district without incurring a negative fiscal impact Develop a Web page for K12school recycling educational materials Page 21 of 35 Funding Create a Recycling Grants or Revolving Loan program for local governments to aid in reaching a 75 recycling goal for their jurisdictions o Structure financial assistance to address both operational and infrastructure costs o Reserve a minimum percentage of these funds for public education and training o Consider limiting the duration of grants program o Require local program commitment to the recycling goal through matching grant funds or loan repayment agreements Waste Management Phase in the requirement that all existing unlined CD disposal facilities be modified to incorporate a Materials Recovery Facility at the front end of their process or utilize other existing materials recovery facilities so that recyclable materials such as wood waste asphalt concrete etc do not become part of the disposal waste stream All new CD disposal facilities would be subject to the requirement before operating Create a recycling business assistance center similar to what was proposed in Senate Bill 1462 during the 2009 Legislative Session o The centersfocus should be on promoting markets for the entire spectrum of recyclable MSW materials organic and inorganic o In addition Enterprise Florida is an ideal lead agency working in partnership with DEP in implementing the centers efforts The Solid Waste Management Trust Fund would make a logical funding source if new revenue sources are adopted 0 Page 22 of 35 0 The Long and Short of the 75 Recycling Goal The programs initiatives and options discussed in this report all offer potential to increase Floridas recycling rate However not all actions are equaland 75 by 2020 is an ambitious goal and a challenging opportunity The chart below estimates the incremental gain each option would provide toward meeting the global 75 recycling goal Clearly the benefit of each option is dependent on how quickly and extensively it is implemented how vigorously it is enforced how much funding is made available and other variables Certainly moving from 28 recycling to 75 recycling over the next decade will require taking aggressive actions sooner rather than later and recognizing that reducing waste in the first place and recycling the rest of it are investments in Floridas inseparable economic and environmental futures Percent Gain TowardRecyclingActivitythe75Goal Increase the recycling rate in the commercial sector in the 31stateshighpopulationcountiesandcitiesto75 Include the amount of waste currently combusted in WTE facilities in the overall 75 goal as legislatively 12 directed Recycle material from the 61million tons of CD debris 12currentlydisposedinCDdisposalsites Institute Zero Waste Zones and Single Stream Recycling 10invariousmarketsaroundthestate Institute a combination PayAsYouThrowand RecycleBank incentive program in the states high 10 population counties and cities Increase each K12school recycling rate to 75 6 Allow Recovered Materials Dealers to get credit for 3recycledmaterialsfromautomobileshredding Require state offices and university buildings to adopt a 15onetonayeargoal Page 23 of 35 U APPENDICES FIGURES 0 Page 24 of 35 Appendix A Energy Climate Change and Economic Security Act of 2008 4037032 Recycling 1 The Legislature finds that the failure or inability to economically recover material and energy resources from solid waste results in the unnecessary waste and depletion of our natural resources As the state continues to grow so will the potential amount of discarded material that must be treated and disposed of necessitating the improvement of solid waste collection and disposal Therefore the maximum recycling and reuse of such resources are considered highpriority goals of the state 2 By the year 2020 the longterm goal for the recycling efforts of state and local governmental entities private companies and organizations and the general public is to reduce the amount of recyclable solid waste disposed of in waste management facilities landfills or incineration facilities by a statewide average of at least 75 percent However any solid waste used for the production of renewable energy shall count toward the longterm recycling goal as set forth in this section 3 The Department of Environmental Protection shall develop a comprehensive recycling program that is designed to achieve the percentage under subsection 2 and submit the program to the President of the Senate and the Speaker of the House of Representatives by January 1 2010 The program may not be implemented until approved by the Legislature The program must be developed in coordination with input from state and local entities private businesses and the public Under the program recyclable materials shall include but are not limited to metals paper glass plastic textile rubber materials and mulch Components of the program shall include but are not limited to a Programs to identify environmentally preferable purchasing practices to encourage the purchase of recycled durable and less toxic goods b Programs to educate students in grades K12in the benefits of and proper techniques for recycling c Programs for statewide recognition of successful recycling efforts by schools businesses public groups and private citizens d Programs for municipalities and counties to develop and implement efficient recycling efforts to return valuable materials to productive use conserve energy and protect natural resources e Programs by which the department can provide technical assistance to municipalities and counties in support of their recycling efforts f Programs to educate and train the public in proper recycling efforts g Evaluation of how financial assistance can best be provided to municipalities and counties in support of their recycling efforts h Evaluation of why existing waste management and recycling programs in the state have not been better used 0 Page 25 of 35 0 Appendix B Revenue Sources Throughout this report options have been identified that can contribute to achieving the 75 goal with little or no additional funding while others will require some sort of financial assistance Given that fact several potential revenue generating options have been identified for consideration Waste Tire Fee Option Beginning in 1989 a 50 cent per tire fee was placed on each new motor vehicle tire sold at retail The fee was increased to 100 per tire in January 1990 During 1990 the consumer price index CPI was 130 today the CPI has increased to 215 or more than 60 Estimates based on a fiveyear average of revenue from the Waste Tire Fee show that by increasing the fee to match todaysCPI an additional revenue of about 121 million could be generated annually The current retail tire fee less administration fees not to exceed 3 is directed to the Solid Waste Management Trust Fund Pros o May be easier to increase an existing fee than create a new one to raise revenue o Adjusting to the current CPI is reasonable and based on sound economics o Generates approximately 12 million in revenue every year Cons o Waste tires make up only 1 of the waste stream and would be subsidizing other waste sources with greater impact Landfill Disposal Surcharge Fee Option Approximately 35 of the 50 states have enacted landfill disposal surcharges Based on 2007 data from Florida counties a surcharge of 1 per ton on waste disposed at landfills would result in approximately 23 million in revenues annually If the surcharge were also applied to WTE plants an additional 4 million in annual revenue would be realized Pros o Generates 23 27 million in revenue annually o The average impact works out to slightly more than 1 annually per person o Equitable because it covers all MSW disposed not just certain sectors Cons o Some counties or private landfills are concerned that the fee would result in less MSW disposed in their landfills and thus less revenue to the county o Selflimiting since more recycling will result in less landfill disposal and less revenue but recycling is of course the objective Bottle Bill Option Eleven states have beverage container deposits also known as bottle bills A bottle bill can be designed to increase recycling and use unredeemed deposits to help fund various recycling programs at the state and local level There will be unredeemed deposits with a bottle bill because not everyone will return their bottles I Page 26 of 35 to claim the refund Michigan has the highest state bottle deposit of 10 cents and a 973 redemption rate but 27 of the bottles are not returned for refunds If Florida had a bottle bill with a 10 cent deposit unredeemed deposits could amount to approximately 35 million per year There has been some concern that a bottle bill would result in local recycling programs losing bottles they would otherwise normally collect resulting in lost revenue However studies have shown that bottle bill states actually have higher curbside recycling rates overall because it increases recycling awareness for other recyclable items There has also been some concern that fraud would be a major problem from sources both in state and out of state However there are legal and operational methods to minimize fraud which in any event has not been significant enough for other states to eliminate their bottle deposit programs Several bottle bill states have expanded or are considering expanding the scope of their programs to cover additional containers that were not common when their legislation was first passed 20 or 30 years ago One option in recognition of the diverse views concerning bottle bills and to overcome the concerns would be a pilot program in select communities around the state Pros o Substantially increases bottle recycling o Reduces roadside litter o States with bottle bills in general have higher recycling rates o Could produce 35 million in revenue to the state for unredeemed bottle deposits o A percentage of the unredeemed deposits could go to retailers to offset costs o Reduces greenhouse gas emissions resulting from manufacturing new bottles and other products from virgin materials rather than recycled materials o Places more responsibility on producers and consumers rather than taxpayers for the cost of solid waste management Cons o Bottles are only 5 of MSW and would be subsidizing other sectors that are a larger part of the problem o Retail sector concerned that it may be expensive or difficult to implement including space considerations o Retailers concerned about possibility of public health issues from returned un cleaned bottles if they do not have space for a separate redemption area Construction and Demolition Debris Refundable Deposit Option Some communities have incorporated a CD disposal deposit into their permit process San Jose California has developed a complementary program to facilitate the preprocessing element for MRFs at CDfacilities This program requires builders and demolition Page 27 of 35 staff to leave a refundable deposit when they come in for a permit to build or demolish The deposit is refunded if they show weight slips from certified MRFsCD facilities or show reuse or recycling in another way that demonstrate they recycled 50 of the material Deposit formulas generally range from 1020 cents per square foot for nonresidential and residential building or demolition Accordingly construction of a 2000 square foot home would require a deposit of 400 This fee is part of the normal building permitting process so it did not require new administrative startup costs Unclaimed deposits are retained by the local government for recycling efforts San Jose program managers advised that the city has generated about 800000 for each of the last two fiscal years from unclaimed deposits Such an approach in Florida could complement the earlier recommendation to require materials recycling facilities on the front end of construction and demolition disposal sites Local governments could require a deposit with the permit to build or demolish structures based on the square footage of the structure The deposit would be refunded when the permittee presents weight slips from a permitted materials recycling facility or otherwise demonstrates that at least 75 of the material was recycled Typical deposits could be 20 cents per square foot for residential construction and 10 cents per square foot for nonresidential construction Unclaimed deposits could go to the city or county to fund infrastructure or commercial recycling efforts or to the state to assist with recycling grants Pros o Substantially more CDwould be recycled o Unrefundeddeposits could be a source of revenue for local or state government for use in grants recycling education or commercial recycling Cons o Additional costs up front for building construction deconstruction or renovation permits o Additional record keeping for permittees in order to get deposit refunded Incandescent Bulb and Hizh Mercurv Fluorescent Bulb Fee Ovtion The incandescent light bulb will be phased out of the market in the United States beginning in 2012 as required by the federal Clean Energy Act of 2007 HR6 Ninety percent of the energy that an incandescent light bulb burns is wasted as heat Still sales of the most common highefficiency bulb available the compact fluorescent light bulb CFL amount to only 5 of the light bulb market The changeover will be gradual with a phase out period of 2012 through 2014 To assist with the phase out in Florida and generate revenue a fee of 25 cents per bulb could be charged until the phase out is complete in 2014 This fee could generate approximately 158 million dollars of revenue through the phase out period Pros o Reduced energy consumption means lower lighting cost for the household and fewer fossil fuels burned which helps to reduce greenhouse gases Page 28 of 35 Cons o Higher initial cost for CFL bulbs over incandescent however the 25 cent fee per bulb on incandescent would make the costs more comparable o Potential increased exposure to mercury from breakage or improper disposal of CFLs over incandescent bulbs o Infrastructure needed may take more time to put into effect than the phase out period Page 29 of 35 0 Appendix C Supplemental Recommendations These recommendations are generally more modest than those in the main body of this report but would nonetheless contribute to meeting 75 by 2020 Many can be implemented with nothing more than initiative and some cooperation Others would require legislative action that merits consideration State Government In cooperation with DEP DMS should develop and provide links to sample policies for local governments and organizations considering the adoption of environmentally preferable purchasing practices DMS in conjunction with DEP should develop an onlinetraining course and certificates designed for staff that initiate and track MFMP and FLAIR contracts and procurement The training course should be geared to the 75 recycling goal and environmentally preferable purchasing specifically purchasing products made from recycled rather than virgin materials Training should also ensure that staff understands life cycle costing and the 10 and 15 price preference available to responsible state venders or others using recycled content identified in Section 287045 Florida Statutes FS Amend Section 403714 FS to require state agencies of the executive legislative and judicial branches of state government and all statesupported institutions of higher education to report to DMS the estimated materials recycled during the prior fiscal year starting with data collected during the 20102011 fiscal year The materials should include at a minimum office paper corrugated cardboard plastic bottles and aluminum cans DMS should then report that data to the Governor the Legislature and DEP DEP should help DMS develop and maintain statewide procurement contracts for all recyclable materials identified in Section 403714 FS and all recyclable hazardous materials such as batteries fluorescent lighting used waste oil aerosols etc DEP should develop a Web site electronic brochures or newsletters for DMS to use for recycling education and assist DMS to increase recycling in state office buildings Clarify in Section 4037143 FS that product procurement language applies to state and local agency contractors as well as the agencies themselves DEP should examine the possibility of partnering with other organizations such as Recycle Florida Today the Florida Sunshine Chapter of the Solid Waste Management Association of North America the Southern Waste Information Exchange SWIX and the University of Floridas Center for Training Research and Education for Environmental Occupations to develop extensive and detailed technical training for local government recycling coordinators and solid waste staff 0 Page 30 of 35 DEP should partner with the existing awards programs of Recycle Florida Today and the Florida Sunshine Chapter of the Solid Waste Management Association of North America Direct the Florida Department of Agriculture and Consumer Services DACS to investigate the potential markets for recycled organic materials and submit its findings biennially to DEP The report should also be sent to the GovernorsOffice of Tourism Trade and Economic Development OTTED Funding Increase the state contribution to the Florida Recycling Loan Program in an amount sufficient to increase the maximum loan amount from 200000 to 500000 Allocate funds for updating the WasteCalc or similar waste composition model that will provide counties with critical data they need to calculate recycling rates at a much lower cost than individual counties conducting their own waste composition studies Fund development and implementation of outreach education promotion demonstration and market development efforts targeted at increasing recovery and beneficial use of organic materials statewide Waste Management Change the authority in Section 4037043 FS for developing rules on compost composting and compost product parameters to developing rules on organics organics processing recycled organic product parameters and product use as they affect the environment This would allow DEP to develop rules and criteria for other organic waste processing technologies other than solely composting and the resulting organic materials Allow DEP to count other organic recycling technologies towards the compost goal in Section 4037062d FS This would acknowledge that there are other technologies such as anaerobic digestion that can be used to recycle organic waste and should be considered as acceptable alternatives to composting Replace the term compost or composted with recycled organicsin Section 4037142 3 and 4 FS This broadens the scope of these requirements to recycled organic materials other than solely compost and will assist in market development Composting is the aerobic decomposition of organic and biodegradable matter to make compost However there are other ways to decompose and recycle organic matter such as via anaerobic digestion which can also produce usable gases or processing yard trash into a material that can be used as mulch or fuel Retain the ban on yard trash going to lined landfills found in Section 40370812c FS unless a case can be made that energy is created by using yard trash as part of a methane gas collection system at a specified landfill According to county reports the landfill ban diverted about 36million tons of yard trash or about 11 of the municipal solid waste stream during calendar year 2007 Retaining a ban Page 31 of 35 encourages yard trash to be available for organic recycling and may also assist counties in achieving the compost goal in Section 4037062d FS The 2000 Florida Recycling Economic Information Study prepared by solid waste consultant R W Beck should be updated to determine the current impact of the recycling industry on Floridas economy Enact product stewardship framework legislation with electronics carpet fluorescent lamps and paint designated as the initial products covered by the legislation To ensure consistency and that priority products are addressed the framework should articulate a transparent inclusive and objective process for designating products It should include public availability of product evaluation information input from affected stakeholders specific decision points and timelines an opportunity to appeal recommendations and a designated decisionmaking body Florida should enact a requirement that by 2020 all active landfills capture and use or flare landfill gas unless the applicant demonstrates to DEP that it is not practicable or economical This requirement would promote the use of flaring and minimize venting methane directly to the atmosphere Flaring would convert all or most of the methane to carbon dioxide C02 a much less potent greenhouse gas than methane It should be noted that Title V of the federal Clean Air Act requires that when a landfill reaches a certain size then landfill gas must be captured 0 Page 32 of 35 0 Figure 1 Tons of Municipal Solid Waste Collected in Florida Counties in 2007 MiamiDade Broward Palm Beac HillsboroughOrange Pinellas Duval Lee Polk Brevard Volusia Pasco semirlole Sarasota Collier Marion ManaTPP Escambia La kc Leon St Lucie OsceolaAlachua Okaloosa ClayStJohns BayCharlotte Hernando Martin Santa Rosa Citrus Indian River HighlandsFlaglerSumter Monroe Putnam Nassau Columbia Walton Jackson Gadsden LevyHendry Suwannee Okeechobe Desoto Wakulla Bradford Hardee Baker Washington TaylorMadison Holmes Gilchrist Gulf Dixie Union HamiltonJefferson CalhounFranklin Glades Lafayette Liberty 000 0so 100 150 200 250 300 350 400 450 500 Tons Millions 0 Page 33 of 35 Figure 2 Florida Municipal Solid Waste Collected in 2007 32 Million Tons NonFerrous Metal 2 Ferrous Meta 9 Yard Waste 11 White Goods Tires Food Wastes Textiles 0 1 5 3 Miscellaneous inum Cans 1 Steel Cans Plastic10Bottles 2 Other Plastics 4 Newspapers 5 C C D Debris 25 Other Paper 9 Corrugated Paper 9 0 Page 34 of 35 0 Figure 3 Florida Counties with WastetoEnergy Facilities 1400000 1 500000 r Design Capacity tons MSW year 450000 1200000 Net Electricity to Grid MWh year 400000 T T 31000000 350000 0 800000 300000 c I 9 1250000 a 600000QC 200000 U 21 400000 150000 a UU 100000 Z 200000 50000 0 0 a o AS e o wee cry ar gip y oCSeQe4qQ 0 Page 35 of 35 y u fa e O o w fc y C s W v w L rr 4 41 d O V1 d7 i l0 C i my O a H c 10 w c o a ea y a U 3 W U c L d U L A j W os a L r e V wW 3 4 W Z v 4a c d m U 3 3 U 03 3 L E v d A I L v c CU U c a o a V p O O LA N a m o ro D O n a L U u C o O oun n 4 cwCL J foZ 10 L O N V V 10 N c p W C N M CO01L7 d t i y a2 f0 c m acpLa L a E O c a 0 o a i m c a s 4 c L 4J 0 E W w m o La o C U LA ERiaiX41 o c 3 cn CE C d Q a trn O N A tn 0 4 o v a E s c fcv y IA Q ar 41 y v L 41 tlOi nCrncIm400cuLNO C rj a rarO1pC0aa 1 C W U 0 0 M VEsOf En m H 0 L Usa fn V v c ro m U Lo U U 3 C F 4 m T 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maaro 2 a E a LL p roLIO Cl u O O O y ro p 2 L a X a Qdac o ro v n 0 C c U aa aa O t o f t NE a cV V2CU o aQ N C19 EC7 0C7 41 ro 0 i o v in U cl a Q CSt o ro 01 C ro o C i a ro cvU C O L ro njrLn0 0 7Q 7 0 0 U SC U CO O QU in ro 7 Cp 41 VOaa0 V y L0 a 3 m 0 3 7t UQ1ro aw ro 0 f C QaUVI L7N L EL O O u ro m a a V a U C C 13 U w y 7 u C aL J O 4J 0 c ra7 Q c c ro c c t a CL O u w cam n o 4 a L 4 AcA c a E O m g o a 4 U 0 c L aci o m o N E a w 450 v m E c 0 E ch anrnro ms ro muvb c Q u mU v v c a f6 i o InEOaLroa A ma41Ua O C i n C C7 O N uro U u a Lucro c V OL00vc aci c c c 1 a avc a c vroE N0 p 9 p 41 o 0 E o 0 u a t O v uMa a o aU t w o s aa r cn C 1 OYm a O a C c ro iJ n o LA 0 E C Q L a a C Q E p w U O a roQ a c a E N O a L L Q cn aLn Y aL O t w E N Ia w J C C 4 Q o 7 E c c A 7 ro E C p ro E i W O L c t O E ro a C m a m a to n u1 a 0 tC 41 cup L a ro p 0 A 7 C E E Q na 7 0 ro a w En 0y7roC a rn C C i a s ro a a N a r ro O ro ro S i 7 U W 41 J Q Ul Cn m ro Q a ro O o 2 E O CO G N V Rr 0 0 QI 4 0 b u b N C b 41 6 a C v 0 0 w 7 L Q C W v Q1 m c E a N a O uaJ I 0 41 m u co u H c W m d V O c d d L 41 0 a c UI 0 73 0 D ro ra E c Dsv0 O i 01 CL 4 4Q 0 4 C O T U 52C v4 W aci u 0 t Y L Q1iOL N6a4J 40 V Y O 7 L C 1 D T QOONma M CC ZOfp O Q 0j fp C r O 0uu O 0 N O E N c a 4 n 4 u G ca 0 0 340a 5 c N 10 N00romorn W7007O0tO01N7aCiCGO7 LL v 0 Q Q1 w O a 0 Q m N O H d U m U O 7 A N m u O L u d W a u O L O v 0 t 0 c a 0L is E a s 0 L a 0 a IA O a Q O 0 O 3 7 O 1n L N i th 0 0 c o o a ro N 3 7 w v N J 0 w c 3 M u o pat Q W roa 0 h v ro a O 0 a d ON N W L O za E a ro v O d ca v 5 da a ro a a N Qro a V 7 t m c O U c ro w in w u T u 0 N O City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Approve amendments to Code of Ordinances, Chapter 14, Elections, to update the code due to changes in the City charter, State Statutes and County Supervisor of Elections procedures and pass Ordinance 8133-10 on first reading. SUMMARY: Various amendments are needed to the City's election code due to: Charter changes increasing the term of office to four years and transferring canvassing board duties to the County Canvassing Board. Changes in State Statutes regarding poll watchers, voting equipment, make up of election boards and election procedures Supervisor of Election procedures regarding selection of polling places, delivery of equipment and selection and training of poll workers. Review Approval:1) Legal 2) Clerk 3) Assistant City Manager 4) Clerk 5) City Manager 6) Clerk Cover Memo Ordinance No. 8133-10 ORDINANCE NO. 8133-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, AMENDING AND REPEALING PORTIONS OF CODE OF ORDINANCES CHAPTER 14, ELECTIONS; AMENDING SECTION 14.03(3) TO PROVIDE FOR FOUR-YEAR CITY COUNCIL TERMS; AMENDING SECTION 14.07 TO PROVIDE THAT THE PRESENCE OF POLL WATCHERS SHALL BE AS SET FORTH IN FLORIDA STATUTES SECTION 101.131; AMENDING SECTION 14.22 TO PROVIDE FOR COMPOSITION OF ELECTION BOARDS; AMENDING SECTION 14.42 TO CONSOLIDATE REFERENCED STATUTORY CHAPTERS AND TO OMIT THE REQUIREMENT THAT THE CITY CLERK OR CITY ATTORNEY PROVIDE A DETAILED LISTING OF APPLICABLE STATE STATUTES TO EACH CANDIDATE; AMENDING SECTION 14.83 TO PROVIDE THAT THE PINELLAS COUNTY CANVASSING BOARD SHALL PROVIDE FOR TESTING OF VOTING SYSTEM EQUIPMENT; AMENDING SECTION 14.86 RELATING TO INSTRUCTION OF ELECTION BOARDS; AMENDING SECTION 14.88 TO PROVIDE FOR CERTIFICATION OF RESULTS BY THE PINELLAS COUNTY CANVASSING BOARD AND PROVISION OF A CERTIFICATE TO THE CITY; REPEALING SECTIONS 14.06, 14.84, AND 14.87; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Florida Legislature has recently amended certain provisions of Florida Statutes Chapters 101 and 102 concerning elections, and recent changes were made by referendum to certain City Charter provisions, and it is necessary to amend Chapter 14 of the Clearwater Code of Ordinances to provide consistency with these amendments, and in addition certain Sections of said Chapter are obsolete in that actions formerly performed by the City Clerk are now carried out, per state statute, by the Supervisor of Elections, and it is therefore appropriate to repeal said Sections; now therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. Code of Ordinances, Chapter 14, Elections, is hereby amended to read as follows: ARTICLE I. IN GENERAL * * * * * Sec. 14.03. Method and manner of election. * * * * * Attachment number 1 Page 1 of 4 Ordinance No. 8133-10 2 (3) The election for seats 4 and 5 shall be held in 1992 2010 and every third fourth year thereafter, and the election for seats 1, 2, and 3 shall be held in 1993 2012 and every third fourth year thereafter. * * * * * Sec. 14.07. Poll watchers. All candidates shall be permitted to have one watcher in each polling room, such poll watchers as are designated in F.S. § 101.131(2). * * * * * Sec. 14.22. Composition. Each election board shall be composed of two or more inspectors, a precinct clerk, and a poll deputy, all of whom shall such persons having the characteristics, and possessing the qualifications, set forth in F.S. § 102.012. * * * * * Sec. 14.42. Compliance with applicable laws. (1) All candidates shall comply with all applicable provisions of the following: * * * * * (c) Those provisions of the Florida Election Code which are applicable to municipal elections, including all of F.S. chs. 97, 98, 104, and 106, and portions of F.S. chs. 99, 100, 101, and 102, a detailed listing of which shall be provided by the city clerk or city attorney to each candidate all or portions of the following F.S. chs.: 97-102, 104, and 106. * * * * * Sec. 14.83. Procurement of voting system; Testing. The city clerk shall have the voting system equipment at the proper polling place before the time fixed for opening of the polls, and in good and proper order for use at such elections. Notification of the time and place where the pre-election testing of the equipment shall take place shall either be given to each candidate at the time of qualifying or sent certified mail to each candidate at least 15 days prior to the election. Following each test procedure the test results shall be sealed. The results of such testing procedure shall be certified by a representative of the city canvassing board and Attachment number 1 Page 2 of 4 Ordinance No. 8133-10 3 the city clerk. All such certification shall be accomplished in the manner provided by The board of county commissioners shall procure and provide for the use of an approved voting system in accordance with F.S. § 101.5604. Testing of the tabulating equipment shall be conducted at the direction of the supervisor of elections, and the county canvassing board shall certify the testing result pursuant to F.S. § 101.5612. * * * * * Sec. 14.86. Instruction of election boards. At least 20 days prior to date of an election, the city clerk, assisted by r Representatives from the supervisor of elections, shall instruct the election boards who are to serve in the election, such instructions to relate to each duty assigned the election boards, including but not limited to instruction in the manner of preparing the voting devices for use and the manner of running a test ballot. The supervisor of elections shall maintain an attendance report signed by each member of the election boards indicating that each member has attended the instruction session. * * * * * Sec. 14.88. Certificate of results. In each election where voting devices are used, a tabulation report of the results shall be provided to the canvassing board and filed with the minutes. The county canvassing board shall certify the election results and provide the city with a certificate of the results pursuant to F.S. § 101.5614 and other applicable sections. * * * * * Section 2. Code of Ordinances Chapter 14, Elections, Sections 14.06, 14.84, and 14.87, reading as follows, are hereby repealed and shall be of no further force and effect: Sec. 14.06. Reserved. Counting absentee ballots. The supervisor of elections may open absentee ballots and prepare for tabulation after 7:00 a.m. on election day. Sec. 14.84. Reserved. Number of units required. The city clerk shall determine the actual number of voting devices to be used in each precinct at each election. In determining the number of voting devices to be used in each precinct, the city clerk shall take into consideration the requirements of state law and the traditional voting patterns of each precinct, and shall furnish the number of voting devices necessary to handle efficiently the number of anticipated voters in the precinct. Attachment number 1 Page 3 of 4 Ordinance No. 8133-10 4 Sec. 14.87. Reserved. Duties of election boards. The election board of each polling place shall arrive at the polling place one hour before the time set for opening of the polls, and shall arrange the polling place and voting system equipment for the election. In preparing and operating each polling place, the election board shall utilize procedures outlined in the most recent edition of Instructions for Poll Workers as provided by the county supervisor of elections. Section 3. This ordinance shall take effect immediately upon adoption. PASSED ON FIRST READING _____________________ PASSED ON SECOND AND FINAL _____________________ READING AND ADOPTED ___________________________ Frank V. Hibbard Mayor Approved as to form: Attest: __________________________ ____________________________ Leslie K. Dougall-Sides Cynthia E. Goudeau Assistant City Attorney City Clerk Attachment number 1 Page 4 of 4 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Adopt Resolution 10-02, encouraging Pinellas County to adopt anti-tethering regulations. SUMMARY: The City of Clearwater (“City”) finds extreme importance in protecting animals and preventing animal cruelty, and the United States Department of Agriculture has found that the continuous confinement of canines by a tether is inhumane. In addition, the continuous confinement of canines by a tether has been found to contribute to aggressive behavior and can lead to severe collar injuries and exposure related illnesses. The proper agency for regulating such behavior is the Pinellas County Board of County Commissioners. Review Approval:1) Office of Management and Budget 2) Legal 3) Clerk 4) Clerk Cover Memo Resolution No. 10-02 RESOLUTION NO. 10-02 A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA, ENCOURAGING THE PINELLAS COUNTY BOARD OF COUNTY COMMISSIONERS TO ADOPT ANTI- TETHERING REGULATIONS; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Clearwater (“City”) finds extreme importance in protecting animals and preventing animal cruelty; and WHEREAS, the United States Department of Agriculture has found that the continuous confinement of canines by a tether is inhumane; and WHEREAS, the continuous confinement of canines by a tether has been found to contribute to aggressive behavior and can lead to severe collar injuries and exposure related illnesses; and WHEREAS, to educate the general public as to the dangers of continuous tethering the Humane Society began a campaign called “Break the Chain”; and WHEREAS, continuous tethering poses danger to canines; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. That the City encourages Pinellas County to adopt anti-tethering regulations, and that the City Clerk is directed to forward a copy of this resolution, upon adoption, to the Board of County Commissioners of Pinellas County. Section 2. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this _______ day of _____________, 2010. ____________________________ Frank V. Hibbard Mayor Approved as to form: Attest: __________________________ _____________________________ Pamela K. Akin Cynthia E. Goudeau City Attorney City Clerk Attachment number 1 Page 1 of 1 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Appoint one member to the Community Development Board with the term to expire February 28, 2014. SUMMARY: APPOINTMENT WORKSHEET BOARD: Community Development Board TERM: 4 years APPOINTED BY: City Council FINANCIAL DISCLOSURE: Yes RESIDENCY REQUIREMENT: City of Clearwater MEMBERS: 7 & 1 alternate CHAIRPERSON: Nicholas C. Fritsch MEETING DATES: 3rd Tues., 1:00 p.m. PLACE: Council Chambers APPTS. NEEDED: 2 SPECIAL QUALIFICATIONS: Board shall include members qualified and experienced in the fields of architecture, planning, landscape architecture, engineering, construction, planning & land use law and real estate THE FOLLOWING ADVISORY BOARD MEMBER(S) HAVE TERMS WHICH EXPIRE AND NOW REQUIRE EITHER REAPPOINTMENT FOR A NEW TERM OR REPLACEMENT BY A NEW APPOINTEE. 1. Jordan Behar – 103 Rogers Street, 33756 – Original Appointment 03/16/2006 (Architecture, pursuing licensure) Interested in Reappointment: No (1st term expires 02/28/2010) (2) Absences in the past year THE FOLLOWING NAMES ARE BEING SUBMITTED FOR CONSIDERATION TO FILL THE ABOVE VACANCY: 1. Michael Boutzoukas – 2433 Bond Ave., 33759 – Attorney (Currently serving on the MCEB) 2. Norma R. Carlough – 1756 Ashton Abbey Rd., 33755 – Ret. Business Management (CDB Alternate member) – Orig. appointment 11/01/07 3. Sheila Cole – 252 Dolphin Point, 33767 – Exec. Director (Currently serving on the MCEB) 4. Robert P. Fernandez – 301 N. Hillcrest Drive, 33755 – Retired/Retail Development (Currently serving on the EZDA) 5. John Funk – 521 Mandalay Ave., #402, 33767 – Real Estate Broker 6. Rita Garvey – 1550 Ridgewood St., 33755 – RetiredVolunteer/Activist 7. Kurt B. Hinrichs, P.E. – 1029 Charles St., 33755 – Civil Engineer/Builder (Currently serving on the MCEB) 8. David L. Jaye – 2856 Shady Oak Ct., 33761 – Real Estate (Currently serving on the Brownfields) 9. Bob Luna – 774 Snug Island, Island Estates, 33767 – Mortgage & Real Estate 10. Gro Miller – 1724 Thomas Dr., 33759 – Real Estate Broker 11. Mary Morrow – 2881 Deer Run S., 33761 – Senior Assoc/Bachelor Political Science (Currently serving on the EAB) Cover Memo 12. Raymond L. Toohey – 1729 Harbor Dr., 33755 – Sr. Mechanical Eng. 13. Donald Van Weezel – 1290 Gulf Blvd., #1408, 33767 – Consultant/BA Econ. & Business Zip codes of current members: 2 at 33755, 2 at 33756, 1 at 33761, 1 at 33764 and 2 at 33767 Current Categories: 1 Architect 1 Architecture, pursuing licensure 1 Civil Engineer 1 Consultant/Project Manager 1 Contractor & Mech. Eng 1 Retired Business Mgt. 1 Retired (Economics) 1 Self Employed: Investor, Yacht Broker - BS Finance & Marketing Review Approval:1) Clerk Cover Memo Attachment number 1 Page 1 of 2 Attachment number 1 Page 2 of 2 Attachment number 2 Page 1 of 2 Attachment number 2 Page 2 of 2 Attachment number 3 Page 1 of 2 Attachment number 3 Page 2 of 2 Attachment number 4 Page 1 of 2 Attachment number 4 Page 2 of 2 Attachment number 5 Page 1 of 2 Attachment number 5 Page 2 of 2 Attachment number 6 Page 1 of 2 Attachment number 6 Page 2 of 2 Attachment number 7 Page 1 of 2 Attachment number 7 Page 2 of 2 Attachment number 8 Page 1 of 2 Attachment number 8 Page 2 of 2 Attachment number 9 Page 1 of 2 Attachment number 9 Page 2 of 2 Attachment number 10 Page 1 of 2 Attachment number 10 Page 2 of 2 Attachment number 11 Page 1 of 2 Attachment number 11 Page 2 of 2 Attachment number 12 Page 1 of 2 Attachment number 12 Page 2 of 2 Attachment number 13 Page 1 of 3 Attachment number 13 Page 2 of 3 Attachment number 13 Page 3 of 3 City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: City Manager Verbal Reports SUMMARY: Review Approval:1) Clerk Cover Memo City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Advisory Board Event SUMMARY: Based on 125 to 150 people for May 3, 2010, estimates received so far for a reception consisting of hors doeuvres with a cash bar: Sheraton Sand Key - $20 per person Greek Town - $10.00 per person Sand Pearl - $3500.00 plus misc. service charge Hyatt Aqualea - $3500.00 plus misc. service charge Spoke with 2 catering companies - did not have liquor license. If we held this event at a City lcoation they would need to return the next day to clean up. Did not pursue estimates. Review Approval:1) Clerk Cover Memo City Council Agenda Council Chambers - City Hall Meeting Date:2/4/2010 SUBJECT / RECOMMENDATION: Other Council Action SUMMARY: Review Approval:1) Clerk Cover Memo