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02/16/2010 1. Presentations 1.1 Service Awards Attachments 2. Financial Services WORK SESSION AGENDA Council Chambers - City Hall 2/16/2010 - 9:00 AM 2.1 Declare the list of surplus vehicles and equipment surplus to the needs of the City and authorize disposal through sale to the highest bidder at the Tampa Machinery Auction, Tampa, Florida, and authorize the appropriate officials to execute same. (consent) Attachments 3. Parks and Recreation 3.1 Award a contract to Pinellas Pools, Inc. of Holiday, Florida, Bid 09-0056-PR for the sum of $190,155, which includes a 5% reduction in contingency of $9,055, for the renovation of the Morningside Aquatics Center; establish a new Capital Improvement Project 315-93617 entitled "Morningside Aquatic Center and Park Renovations" for $350,911, and authorize the appropriate officials to execute same. (consent) Attachments 4. Solid Waste/General Support Services 4.1 Award a contract (Purchase Order) for $214,109.00 to Container Systems and Equipment Co., Inc. of Daytona Beach, Florida for one Crane Carrier Low Entry Cab Chassis with a 25 cubic yard Loadmaster Excel Rear Loader body in accordance with Sec. 2.564(1)(d), Code of Ordinances - Other governmental bid, authorize lease purchase under the City's Master Lease Purchase Agreement and authorize the appropriate officials to execute same. (consent) Attachments 5. Public Utilities 5.1 Approve an increase and extend existing purchase order (BR505656) for MicroCg with Environmental Operating Systems of Bourne, MA through September 30, 2010, increasing the purchase order value by $83,543.04, for a new contract value of $182,623.04, and authorize the appropriate officials to execute same. (consent) Attachments 6. Engineering 6.1 Award a contract to Castco Construction, Inc. of Largo, Florida, for the rehabilitation of four vehicular bridges in the City of Clearwater in the amount of $155,507.76, which is the lowest responsible bid in accordance with plans and specifications, and authorize the appropriate officials to execute same. (consent) Attachments 6.2 Approve 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.), as more particularly described in the ordinance, subject to project completion on or before September 30, 2012, and pass Ordinance 8145-10 on first reading. (VAC2009-07 L.O.M., Inc.) Attachments 6.3 Accept a perpetual easement entitled "Stevens Creek Offsite Utility Easement" encumbering 5599 square feet, more or less; and a perpetual easement entitled "Stevens Creek Offsite Drainage and Utility Easement" encumbering 153 square feet, more or less, over, under and across respective portions of the West 1/2 of the Southeast 1/4 of Section 3, Township 29 South, Range 15 East, each being conveyed by Clearwater Volunteers of America Elderly Housing, Inc. (Grantor), a Florida not-for-profit corporation in consideration of receipt of $10.00 and the benefits to be derived therefrom. (consent) Attachments 7. Planning 7.1 Approve the Annexation, Initial Land Use Plan Designation of Residential Low (RL) and Initial Zoning Atlas Designation of Low Medium Density Residential (LMDR) District for 1624 Stevenson's Drive (Lot 12, Block A, Stevenson's Heights, Section 10, Township 29 South, Range 15 East); and Pass Ordinances 8135-10,8136-10 and 8137-10 on first reading. (ANX2007-03007) AttnchmPntc 7.2 Approve the Annexation, Initial Land Use Plan Designation of Residential Urban (RU) and Initial Zoning Atlas Designation of Low Medium Density Residential (LMDR) District for 2170 Catalina Drive South (Lot 42, Sunset Gardens in Section 24, Township 29 South, Range 15 East); and Pass Ordinances 8138- 10, 8139-10 and 8140-10 on first reading. (ANX2009-11015) Attachments 7.3 Approve 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, adopt Resolution 10-01, and authorize the appropriate officials to execute the Development Agreement and associated documents. Attachments 7.4 Approve amendments to the Community Development Code amending side setback standards for commercial or multi-use docks on non-residentially zoned property adjacent to residentially zoned property, and Pass Ordinance 8132-10 on first reading. (TA2009-12009) Attachments 8. Official Records and Legislative Services 8.1 Appoint Robert J. Entel as a citizen representative to the Public Art and Design Advisory Board with the term to expire February 28, 2014. (consent) Attachments 9. Legal 9.1 Authorize instituting a civil action on behalf of the City against Hawkins Construction, Inc. to seek to obtain payment for services rendered by Clearwater's Public Utilities Department/Water Division. (consent) Attachments 9.2 Authorize a civil action on behalf of the City against Nancy L. Downey to seek to recover costs and expenses to repair a CPD vehicle which sustained damage due to an automobile accident caused by the driver of Ms. Downey's vehicle. (consent) Attachments 9.3 Adopt Ordinance No. 8131-10 on second reading, amending sections of Chapter 32, Code of Ordinances, relating to roll-off container regulations. Attachments 9.4 Adopt Ordinance No. 8133-10 on second reading, amending and repealing portions of Chapter 14, Code of Ordinances, regarding elections. Attachments 9.5 Adopt Ordinance No. 8146-10 on second reading, deleting provisions of Chapter 33, Waterways and Vessels, Clearwater Code of Ordinances, regulating vessel operation within city waterways that are preempted to the State; adding definitions to conform with State law, and clarifying the types of vessels that may utilize city-owned docking facilities so that the City Charter and Code of Ordinances are consistent. Attachments 10. City Manager Verbal Reports 10.1 City Manager Verbal Reports Attachments 11. Other Council Action 11.1 Other Council Action Attachments 12. Adjourn 13. Presentation(s) for Council Meeting 13.1 Clearwater Neighborhood Coalition to thank the City for their support for the 2009 Clearwater Neighborhood Coalition Conference on Gang Intervention. Attachments 13.2 Swearing in of Police Chief Tony Holloway B Attachments 13.3 Clearwater for Youth Day Proclamation Attachments 13.4 Human Rights Walkathon Day Proclamation Attachments 13.5 Poppy Day Proclamation Attachments 13.6 2010 Winter Business, Home and Neighborhood of the Quarter Awards Attachments 13.7 Department of Homeland Security Recognition of Ironman EOC Operations - Rick Carnley B Attachments Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Service Awards SUMMARY: 5 Years of Service Daniel Taban Jimmie Evans Lisa Goodrich Michael Suhoza Karen Vaughan Michael Delk Joe Trowell Robert Weiss Jariel Candelario Ellen Ayo Michael Manlove Michelle Kutch 10 Years of Service Martin Moran Joseph Roseto William Dillashaw 15 Years of Service Parks & Recreation Parks & Recreation Customer Service Engineering Official Records & Legislative Services Planning & Development Parks & Recreation Fire Solid Waste Marine & Aviation Public Services Human Resources Fire Human Resources Public Services Christopher Precious Christopher White Jeffrey Di Vincent Joseph Falcone Joseph Fazio Leonard Merritt Linda Galioto Richard Nestor Scott Ballard Steven Squillante Azzilene Byrd DeWayne Broadwater Nichole Loux Timothy Henson Trava Alston 20 Years of Service Donald Greene 30 Years of Service Edward Turnbull Police Police Police Police Solid Waste Police Police Police Police Police Solid Waste Parks & Recreation Police Solid Waste Solid Waste Public Utilities General Services Cover Memo Item # 1 Review Approval: 1) Clerk Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Declare the list of surplus vehicles and equipment surplus to the needs of the City and authorize disposal through sale to the highest bidder at the Tampa Machinery Auction, Tampa, Florida, and authorize the appropriate officials to execute same. (consent) SUMMARY: All vehicles and equipment have been replaced as necessary and are no longer required. Tampa Machinery Auction is the Pinellas County Purchasing Cooperative Auctioneer of Record. Type: Other Current Year Budget?: No Budget Adjustment Comments: Current Year Cost: Not to Exceed: For Fiscal Year: Revenue to Appropriation Code 0566-00000-364413-000- 000-0000 Amount To be determined Budget Adjustment: Annual Operating Cost: Total Cost: Appropriation Comment Sale proceeds No N/A 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 Item # 2 Attachment number 1 Page 1 of 1 Surplus for February 18, 2010 REASON FOR ITEM # Asset# YEAR DESCRIPTION SERIAL NUMBER ILEAG SURPLUS 1 DISPOSAL 1 G1751 1997 Chevrolet S-10 Pickup Truck 1GCCS14X1V8170638 67572 Budget reduction/not replaced 2 G1759 1997 Chevrolet S-10 Pickup Truck 1 GCCS1 9X3V8194061 64859 Budget reduction/not replaced 3 G1824 1997 Ford F350 Flatbed 1 FDKF37HOVEC15422 87186 Age/Condition/Replaced 4 G2058 1999 Alamo A60B Mower Attachmemt 1713 N/A Budget reduction/not replaced 5 G2065 1999 Chevrolet 3500HD Flatbed 1 GBKC34J3XF040640 85973 Age/Condition/Replaced 6 G2161 1999 GMC Sonoma Pickup Truck 1 GTCS14X1XK518296 82314 Age/Condition/Replaced 7 G2290 2001 Ford E350 Van w/Altec Bucket 1 FTSE34LX1 HA95153 80497 Age/Condition/Replaced 8 G2329 2000 Ford Taurus 4 dr. Sedan 1 FAFP5222YA258260 76507 Age/Condition/Replaced 9 G2401 2001 Ford Crown Victoria Police Sedan 2FAFP71W31X150954 76674 Age/Condition/Replaced 10 G2593 2002 GMC 1500 Ext Cab Pickup 1 GTEC1 9V72E1 98888 76462 Age/Condition/Replaced 11 G2662 2003 Toro Z Master Riding Mower 230000152 N/A Age/Condition/Replaced 12 G2663 2003 Toro Z Master Riding Mower 230000137 N/A Age/Condition/Replaced 13 G2664 2003 Toro Z Master Riding Mower 23000107 N/A Age/Condition/Replaced 14 G2667 2003 Toro Z Master Riding Mower 230000136 N/A Age/Condition/Replaced 15 G3006 2005 Ford Explorer 4x4 1 FMZU72K35UB05727 50079 Bad Trans/Replaced 16 G3177 2006 Kawasaki Mule 3010 Utility Veh JK1AFCE176B543715 N/A Rusted/Replaced 17 G3178 2006 Kawasaki Mule 3010 Utility Veh JK1AFCE166B544337 N/A Rusted/Replaced Item # 2 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Award a contract to Pinellas Pools, Inc. of Holiday, Florida, Bid 09-0056-PR for the sum of $190,155, which includes a 5% reduction in contingency of $9,055, for the renovation of the Morningside Aquatics Center; establish a new Capital Improvement Project 315-93617 entitled "Morningside Aquatic Center and Park Renovations" for $350,911, and authorize the appropriate officials to execute same. (consent) SUMMARY: On August 21, 2008 the Council approved accepting a Florida Recreation Development Assistance Program (FRDAP) grant to provide renovation enhancements to outdoor recreation elements at Morningside Aquatics Center and Park including the playground, picnic facilities and pool. Staff identified that the City match come from the CIP "Swimming Pool Repair and Replacement Project" (315-93271) and from the CIP "Playground Equipment Replacement" (315-93230), but did not actually request the Council approve a new Capital Improvement Project, thus the recommendation to create CIP 315-93617, "Morningside Aquatic Center and Park Renovations". Approval of this item will transfer $200,000 in CIP "Swimming Pool Repair and Replacement Project" (315-93271) and $15,300 in CIP "Playground Equipment Replacement" (315-93230) along with $135,611 which is the FRDAP grant, bringing the total for the project to $350,911. This contract is for the renovation of the pool which includes resurfacing the pool, replacement of drains, plumbing repairs and circulation system improvements. The remainder of the elements including shade shelters, picnic tables, playground installation, drainage improvements, sidewalk and deck improvements and fence installation will be completed using other contractors or City personnel. The demolition of the Morningside Recreation Center is a separate item and will be funded from existing funds in the Morningside Recreation Center replacement budget CIP 315-93251. Plans are on schedule to demolish the building sometime in the spring of 2010. Type: Capital expenditure Current Year Budget?: Yes Budget Adjustment Comments: Create new CIP 315-93617 for $350,911. Current Year Cost: $350,911 Not to Exceed: $350,911 For Fiscal Year: 2009 to 2010 Budget Adjustment: Yes Annual Operating Cost: -0- Total Cost: $350,911 Appropriation Code Amount 315-93271 $200,000 315-93230 $15,300 315-93617 $135,611 Appropriation Comment Transfer into 315-93617 Transfer into 315-93617 FRDAP Grant Cover Memo Item # 3 Bid Required?: Yes Bid Number: 09-0056- PR Other Bid / Contract: Bid Exceptions: None Review 1) Engineering 2) Financial Services 3) Office of Management and Budget 4) Parks and Recreation 5) Engineering 6) Financial Approval: Services 7) Office of Management and Budget 8) Parks and Recreation 9) Engineering 10) Financial Services 11) Office of Management and Budget 12) Legal 13) Clerk 14) Assistant City Manager 15) Clerk 16) City Manager 17) Clerk Cover Memo Item # 3 Attachment number 1 Page 1 of 13 I O I) llI ,,1111-,R: ()\:'TRAC°I iI0N1_) S 1] I OF I 1 (MII) ( ()I \ I 1 "i 11\1 I I V-1 I \O?? tl L.. \11I N I3N I III I'll Pp l1?1??: IIM I 1 li t\Ir \I,\I I I 1 III()( IN I 411 \I)1:I I)111 I1'-+f)\} 11i)I_).11.:ti 1\?1 ?O C A \ I'"`; I1 RI 1"N 11' I I }: c' ?1 ! } 1) F)II: I ?_I; I'.'.:;II,C'1 ;':I?i +• `il?1,,. ,Iii 11.1 lI ??'' 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'. 11 t11.11I'tit,? 1111`- l'I +llI 1 r 1'111 ?tp t 111 1B.','t1lyid10 '?fl:`'! lILI41,M) H)"illi 11,1 lNUM 111 w IPHI`;tl IIp%I]I 111'1` 1?_41 "If 11 llUnt,11 1111 AK 1111 11 ifl.%,',I 1[1.114 411 it 11 Is "kl'tlC, M rlHf%!0 [A IHi 1$Hl r>I I1II l'EC+?til 1 ),^,I• `:11111 P1Il},111`11 Ili! ji1111 1;11'?;tilP! 11T3 i;[ 111111111111 I! it 1!^"+4]`?I`?? ?•li.yl 1t F','- f",,??eeV ) l1l, n.f'li I1 . ??, h l a H ROM 00 3 Attachment number 1 Page 12 of 13 bk a I'o1AL( 'IAN f- k!DR NAME ?f1[i ? fj? ??} ? } I ?IZ1?. ,,] I1?: };i';t €,3 F'-• 1111 6;t??l9] lir ti}l ]i ( l"?"i i'?l, iif: ?I L X11 !t!b ;E iI l:'', l t+'lil'?1? +I'??;i?i 1\li },!; 1;?,I}(P E?1 .fill +.1 +.} Iil•','??II IlF?4?• II'11 ?! 1Fi:.',IE}ki9?1'- ?,I I i(1Flr ,lull! }>'s I l?ll 'It'!1! I? IE1.1 } lFlfk 1 IlU`? to f Ili !'l,tf,?}c I t\li '°?H It I I?I I1!?\11A} 111k i.C_il`, 1'.131E711? fig lil `? s,h:.l,! !? IIII 1; i1;\l',.,Ir!} I i.ai 11..If}:1'lktst J:I ?"km;I 5, 1? RL eel I Item # 3 5t1 Item # 3' ?H oa a HH N ? o a zH ? oa HH N ? o oa c HH N o Vy? FFi u O ? as off F A c iN ° a a 10 0 ? o 0 o H H N ? u a q u a a 0 o z w a U O ? zH o ?d O P off r U ?? w ? O N .5 d a a a y M o 1 0 ? a ° ?° Hw ? a a a a a a a ? a a a H a?o x z a ?w " 5 G t!? ?' g z z ?o w? LL h X O? d A LL ?- C ?? O O ? a F O u? 2 a o 99 -ig C W o w WF d C d YJO' '? "' b ?, ` G L .'C _a p ° o z . . G a 0 FJ-' m x w b °?!' 'S a T H o o K w° b `'3 o S W W a? o o o ? o o ¢' rl O ,°? b a d Q A d ?' P. ?" A N r/. rl "LL .C O ?' G o C ? ?' C C O Z F o ?, .7 ro o ? ? ro o a g? 0 b was o b 41 ???? ? xa?a a rn It ro ro o ,ttachment number 2 ,age 1 of 1 tem # 3 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Award a contract (Purchase Order) for $214,109.00 to Container Systems and Equipment Co., Inc. of Daytona Beach, Florida for one Crane Carrier Low Entry Cab Chassis with a 25 cubic yard Loadmaster Excel Rear Loader body in accordance with Sec. 2.564(1)(d), Code of Ordinances - Other governmental bid, authorize lease purchase under the City's Master Lease Purchase Agreement and authorize the appropriate officials to execute same. (consent) SUMMARY: The rear loader unit will be purchased through the Florida Sheriffs Association & Florida Association of Counties Contract #09-17- 0908, Specification #060 and the quote dated January 27, 2010. This truck will replace G2422 in the Solid Waste fleet. G2422 was included in the 08/09 Garage CIP Replacement Fund for the replacement of the body and the budget amount was $50,000. The chassis portion of the unit was in fair condition but has deteriorated to the current situation that replacement is necessary. Current mileage on the truck is 93,966. The Garage CIP has enough savings to cover the additional cost of the chassis and Solid Waste has operating funds available to cover the additional debt. Type: Purchase Current Year Budget?: Yes Budget Adjustment: None Budget Adjustment Comments: Current Year Cost: $44,534.67 Annual Operating Cost: $28,438.77 Not to Exceed: Total Cost: $72,973.44 For Fiscal Year: 2009 to 2010 Appropriation Code Amount Appropriation Comment 0316-94234-564100-519- $214,109.00 L/P CIP 0000 Bid Required?: No Bid Number: Florida Other Bid / Contract: Sheriffs Bid Exceptions: None Contract #09- 17-0908 Review 1) Office of Management and Budget 2) Legal 3) Clerk 4) Purchasing 5) Clerk 6) Financial Services 7) Clerk 8) Assistant City Approval: Manager 9) Clerk 10) City Manager 11) Clerk Cover Memo Item # 4 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Award a contract to Castco Construction, Inc. of Largo, Florida, for the rehabilitation of four vehicular bridges in the City of Clearwater in the amount of $155,507.76, 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 Engineering Department initiated this project to prevent further erosion and deterioration of bridges as identified in January 2009 FDOT Bridge Inspection Reports. Two of the bridges are located on Island Way, north and southbound. The other bridges are on Hercules Avenue north of Lakeview and on Douglas Avenue south of Sunset Point. The project was competitively bid, and Restocon Corporation was the lowest bidder with a proposed fee of $36,088.80. The average of nine submitted bids was - $258,300 which is in line with the engineer's estimate. Restocon met with the Engineering Department to discuss the low bid. Restocon did not have a clear understanding of the project scope and asked that their bid be withdrawn. Engineering agreed to allow withdrawal of the bid. The second lowest bidder, Castco Construction, became the lowest responsible bidder with a bid proposal of $155,507.76. Construction, Engineering, & 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 responding to contractor questions. The contract period for construction is 120 consecutive calendar days estimated to start in March 2010 and finish in July 2010. The Public Services Department shall own and maintain the proposed improvements included in this contract. Sufficient budget and revenue are available in the Capital Improvement Program project 0315-92274, Bridge Main & Improvements. Type: Capital expenditure Current Year Budget?: Yes Budget Adjustment Comments: Current Year Cost: $155,507.76 Annual Operating Cost: Not to Exceed: $155,507.76 Total Cost: For Fiscal Year: 2009 to 2010 0 $155,507.76 Appropriation Code Amount Appropriation Comment 0315-92274-563800-541- $155,507.76 see summary section 000-0000 Bid Required?: Yes Budget Adjustment: None Cover Memo Bid Number: 09-00050- EN Item # 5 Other Bid / Contract: Bid Exceptions: None Review 1) Financial Services 2) Office of Management and Budget 3) Legal 4) Clerk 5) Assistant City Manager 6) Clerk 7) City Approval: Manager 8) Clerk Cover Memo Item # 5 Attachment number 1 Page 1 of 1 ?h 2009 BRIDGE REHABILITATION PROJECT (09-0050-EN) TARA KIVETT, PROJECT MANAGER BID OPENING: THURSDAY, JANUARY 21, 2010 @ 1:30 PM AWARD DATE: THURSDAY, FEBRUARY 18, 2010 BID #: CONTRACTOR 10% BID PROPOSAL TOTAL BASE BID 1 ALL AMERICAN CONCRETE X $269,346.00 2 CASTCO CONSTRUCTION 1ST LOW BID X $155,507.76 3 CEM ENTERPRISES X $238,799.00 4 COASTAL MARINE CONSTRUCTION NO BID 5 CORAL MARINE CONSTRUCTION NO BID 6 ENGINEER CONTROL SYSTEMS X $356,778.40 7 JOHNSON BROTHERS NO BID 8 KLOOTE CONTRACTING X $578,263.40 9 L & S CONCRETE RESTORATION NO BID 10 M & J CONSTRUCTION CO NO BID 11 MARINE CONTRACTING GROUP NO BID 12 PNEUMATIC CONCRETE CO 3 LOW BID X $237,138.00 13 n m cSTOGON r'nnn WITHDRAWN X 14 SIEG & AMBACHTSHEER 2 LOW BID X $195,250.00 15 SPECTRUM CONTRACTING NO BID 16 WORTH CONTRACTING X $266,193.40 ALL OF THE ABOVE CONTRACTORS ARE PRE-APPROVED AND DID ATTEND THE MANDATORY PRE-BID MEETING HELD ON JANUARY 7, 2010. Item # 5 H o n o o v a H a 0 3 a a - - - - - - - - - - - - - - - - z 0 c tt h e t o a f 4 H U r o o z 0 - - - - - - - - - - - - - - - « P 0. ? - _ - y - r 2 O V F O C - 0. _ o a r4 O O L4 {F?jV1 wF' y r 0. m o N °o _ o o z w - - - - - = _ - - - - - - - - - H c ` w ° V 0. z H _ o c` - H z ? 0 v - 8 1. o - y a ? - - - - - - - - - - - - - - z - - - - - - - - - - - - a 6 ? F] F] F] V F] F] ? F] y F] F] F] ? F] F] y F] F] F] F] F] F] F] F] C' - - - - - - - - - - - - - - - a N ? 5 ur c ? o ? c z z 3 z F 1 . J m ° C C1 L ? 9 :'? ? v Z - A g C e 0. s 9 C T 5 A c rt' N o m n ?' o - E a a E ? ? n` ? ` :.+ - bl: _ w c a _ w ? a _ w W - a -? i c a c a c a c a c a . `-? # 'a v", c a c a c a c a c a c a c a -a, v", c a °- b1? Q ai r?- x 1V1 I11 I? W QI O A fiber 2 0 x H a 0 3 a a ° o ° z o w o U y 0 H 0 N z pp` o a' ? a a a 0.1 W ? u o A ° / V u y a ? y a w 5 a' 6 Z O F y o N W N ? 0 Ark a H ?a y' z W o U y a o ? a F a Z ? Z W W O H ? a F~ a w Attachment number 2 Page 2 of 4 Item # 5 Attachment number 2 Page 3 of 4 - - - - - - - - - - - - - a a a a ? a a a a y a a a a a a y a a a a a a a a - - c- - - - - - - - - - - - - - - - a N ? 5 ur z z 3 z F 1 . J m ° C C1 L ? 9 :'? ? v Z - A 3 a` _ ° m a` _ v ? a` r a _ ! ? o ? c v a r ? ? c ., V 3 ' z- a '? ? o c 't N o m A 't' ? ^' o = ? :.+- bl: - _ w c a _ w . 9 a _ w W - a -? i c cw` c cw` c cw` c cw` c cw` . `-? # 'a v`, c 9 c 4w c c gw c gw c gw 3 gwj a v" c gw °- b1? - F =L t k t l ff l i t i Attachment number 2 Page 4 of 4 Z W W O H a ? F~ a w Item # 5 Attachment number 3 Page 1 of 19 BOND NUMBER: CONTRACT BOND STATE OF FLORIDA COUNTY OF PINELLAS ®W ALL MEN BY THESE PRESENTS: That we CASTCO CONSTRUCTION, INC. Contractor and WESTFIELD INSURANCE COMPANY, GIIG INSU NCE, (Surety) whose home address is 751 OAK STREET, SUITE 100, JACKSONVILLE, FLORIDA 32204. 2009 BRIDGE REHABILITATION PROJECT (09®0050-EN) a copy of which said contract is incorporated herein by reference and is made a part hereof as if fully copied herein. NOWTHEREFORE, THE CONDITIONS OFT IS OBLIGATION ARE SUCH, that if the Contractor shall in all respects comply with the terms and conditions of said contract, including the one-year guarantee of material and labor, and his obligations thereunder, including the contract documents (which include the Advertisement for Bids, Form of Proposal, Form of Contract, Form of Surety Bond, instructions to Bidders, General Conditions and Technical Specifications) and the Plans and Specifications therein referred to and made a part thereof, and such alterations as may be made in said Plans and Specifications as therein provided for, and shall indemnify and save harmless the said Owner against and from all costs, expenses, damages, injury or conduct, want of care or skill, negligence or default, including patent infringements on the part of the said Contractor agents or employees, in the execution or performance of said contract, including errors in the plans furnished by the Contractor, and further, if such "Contractor" or "Contractors" shall promptly make payments to all persons supplying him, them or it, labor, material, and supplies used directly or indirectly by said Contractor, Contractors, Sub-Contractor, or Sub-Contractors, in the prosecution of the work provided for in said Contract, this obligation shall be void, otherwise, the Contractor and Surety jointly and severally agree to pay to the Owner any difference between the sum to which the said Contractor would be entitled on the completion of the Contract, and that which the Owner may be obliged to pay for the completion of said work by contract or otherwise, & any damages, direct or indirect, or consequential, which said Owner may sustain on account of such work, or on account of the failure of the said Contractor to properly and in all things, keep and execute all the provisions of said contract. Page 1 Item # 5 Attachment number 3 Page 2 of 19 CONT CT BOND (2) And the said Contractor and Surety hereby further bind themselves, their successors, executors, administrators, and assigns, jointly and severally, that they will amply and fully protect the said Owner against, and will pay any and all amounts, damages, costs and judgments which may be recovered against or which the Owner may be called upon to pay to any person or corporation by reason of any damages arising from the performance of said work, or of the repair or maintenance thereof, or the manner of doing the same or the neglect of the said Contractor or his agents or servants or the improper performance of the said work by the Contractor or his agents or servants, or the infringements of any patent rights by reason of the use of any material furnished or work done; as aforesaid, or otherwise. And the said Contractor and Surety hereby further bind themselves, their successors, heirs, executors, administrators, and assigns, jointly and severally, to repay the owner any sum which the Owner may be compelled to pay because of any lien for labor material furnished for the work, embraced by said Contract. And the said Surety, for the value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract or to the work or to the specifications. IN TESTIMONY WHEREOF, witness the hands and seals of the parties hereto this day of 2010 CASTCO CONSTRUCTION, INC.. CONTRACTOR ATTEST: WITNESS: COUNTERSIGNED: By: SURETY By: ATTORNEY-IN-FACT Page 2 Item # 5 Attachment number 3 Page 3 of 19 CONTRACT This CONTRACT made and entered into this day of , 2010 by and between the City of Clearwater, Florida, a municipal corporation, hereinafter designated as the "City", and CASTC® CONSTRUCTION, INC. of the City of CLEARWATER, County of PINELLAS and State of FLORIDA hereinafter designated as the "Contractor". WITNESSETII: That the parties to this contract each in consideration of the undertakings, promises and agreements on the part of the other herein contained, do hereby undertake, promise and agree as follows: The Contractor, and his or its successors, assigns, executors or administrators, in consideration of the sums of money as herein after set forth to be paid by the City and to the Contractor, shall and will at their, own cost and expense perform all labor, furnish all materials, tools and equipment for the following: 2009 BRIDGE REHABILITATION PROJECT (09-0050®EN) FOR THE SUFI F: ONE HUNDRED FIFTY- FIVE THOUSAND FIVE HUNDRED SEVEN DOLLARS AND SEVENTY SIX ($155,507.76) In accordance with such proposal and technical supplemental specifications and such other special provisions and drawings, if any, which will be submitted by the City, together with any advertisement, instructions to bidders, general conditions, proposal and bond, which may be hereto attached, and any drawings if any, which may be herein referred to, are hereby made a part of this contract, and all of said work to be performed and completed by the contractor and its successors and assigns shall be fully completed in a good and workmanlike manner to the satisfaction of the City. If the Contractor should fail to comply with any of the terms, conditions, provisions or stipulations as contained herein within the time specified for completion of the work to be performed by the Contractor, then the City, may at its option, avail itself of any or all remedies provided on its behalf and shall have the right to proceed to complete such work as Contractor is obligated to perform in accordance with the provisions as contained herein. Page 3 Item # 5 Attachment number 3 Page 4 of 19 CONTRACT (2) In addition to the foregoing provisions, the Contractor agrees to conform to the following requirements: In connection with the performance of work under this contract, the Contractor agrees not to discriminate against any employee or applicant for employment because of race, sex, religion, color, or national origin. The aforesaid provision shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; lay-off or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post hereafter in conspicuous places, available for employees or applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the non-discrimination clause. The Contractor further agrees to insert the foregoing provisions in all contracts hereunder, including contracts or agreements with labor unions and/or worker's representatives, except sub-contractors for standard commercial supplies or raw materials. It is mutually agreed between the parties hereto that time is of the essence of this contract, and in the event that the work to be performed by the Contractor is not completed within the time stipulated herein, it is then further agreed that the City may deduct from such sums or compensation as may be due to the Contractor the sum of $19000.00 per day for each day that the work to be performed by the Contractor remains incomplete beyond the time limit specified herein, which sum of X1,000.00 per day shall only and solely represent damages which the City has sustained by reason of the failure of the Contractor to complete the work within the time stipulated, it being further agreed that this sum is not to be construed as a penalty but is only to be construed as liquidated damages for failure of the Contractor to complete and perform all work within the time period as specified in this contract. It is further mutually agreed between the City and the Contractor that if, any time after the execution of this contract and the surety bond which is attached hereto for the faithful performance of the terms and conditions as contained herein by the Contractor, that the City shall at any time deem the surety or sureties upon such performance bond to be unsatisfactory or if, for any reason, the said bond ceases to be adequate in amount to cover the performance of the work the Contractor shall, at his or its own expense, within ten (10) days after receipt of written notice from the City to do so, furnish an additional bond or bonds in such term and amounts and with such surety or sureties as shall be satisfactory to the City. If such an event occurs, no further payment shall be made to the Contractor under the terms and provisions of this contract until such new or additional security bond guaranteeing the faithful performance of the work under the terms hereof shall be completed and furnished to the City in a form satisfactory to it. Page 4 Item # 5 Attachment number 3 Page 5 of 19 CONTRACT (3) IN WITNESS WHEREOF, the parties to the agreement have hereunto set their hands and seals and have executed this Agreement, in duplicate, the day and year first above written. CITY OF CLEA WATER PINELLAS COUNTY, FLORIDA By: William B. Horne, II City Manager Countersigned: By: Frank Hibbard, Mayor-Councilmember (Contractor must indicate whether Corporation, Partnership, Company or Individual.) (The person signing shall, in his own handwriting, sign the Principal's name, his own name, and his title; where the person is signing for a Corporation, he must, by Affidavit, show his authority to bind the Corporation). (Seal) Attest: Cynthia E. Goudeau, City Clerk Approved as to form Camilo Soto Assistant City Attorney (Contractor) By: (SEAL) Page 5 Item # 5 Attachment number 3 Page 6 of 19 CONTRACTOR'S AFFIDAVIT FOR FINAL. PAYMENT (CORPO TION FO STATE OF FLORIDA COUNTY OF PINELLAS On this day personally appeared before me, the undersigned authority, duly authorized to administer oaths and take acknowledgments, , who after being duly sworn, deposes and says: That he is the (TITLE) of CASTCO CONSTRUCTION, INC.. a Florida Corporation, with its principal place of business located at 9001 126TH AVENUE NORTH, LARGO, FLO DA 33773, (herein, the "Contractor"). That the Contractor was the general contractor under a contract executed on the day of 2010, with the CITY OF CLE WATER, FLORIDA, a municipal corporation, as Owner, and that the Contractor was to perform the construction of: 2009 BRIDGE HABILITATION PROTECT (090050®EN) That said work has now been completed and the Contractor has paid and discharged all sub-contractors, laborers and material men in connection with said work and there are no liens outstanding of any nature nor any debts or obligations that might become a lien or encumbrance in connection with said work against the described property. That he is making this affidavit pursuant to the requirements of Chapter 713, Florida Statutes, and upon consideration of the payment of (Final Full Amount of Contract) . full satisfaction and discharge of said contract. That the Owner is hereby released from any claim which might arise out of said Contract. The word "liens" as used in this affidavit shall mean any and all arising under the operation of the Florida Mechanic's Lien Law as set forth in Chapter 713, Florida Statutes. Sworn and subscribed to before me CASTCO CONSTRUCTION, INC.. AFF T This day of 32010 BY: NOTARY PUBLIC My Commission Expires: PRESIDENT Page 6 Item # 5 Attachment number 3 Page 7 of 19 k " Al i and xccul is a corporahoi"i ) Ml k STATE ..._._...._ 1f Street & IN, f G 14t? ?' €tE?x? lip, tllitftltct Sworn to bcfa )re; me tl l ` o 1 `os?A! U IN t, too, miss ........ ..................................._...__........._............. _ ._ ?, vary 5 `?a _._. ............................ _.,. ,Tii t ak. and Seri i1 4/ZlA<1%I 1 11TE 0`0 Noooo? . K of 14 Attachment number 3 Page 8 of 19 STATE 01, F'LORIDA COUNTY M, ..._...._ the part \ b' fi`oul E conizlluni;,: uj f7l x ,t15" t, c21 ?tlllt!'?1t '` 1la.,., not <?l!'?.Ct `:' or t u j . or relaiivtL to ally aI - :C" F 11K iu?' ?C i P 1 t -> Al i. Swoni to an Alt lay of ??OVV$lhZ?96i?P?lffd/' ? 1 P. 84 ??. J??ssacyF ?, <jlaiyF Atb ® aG ??pary #DD 678683®C \e? Z/C 6' Attachment number 3 Page 9 of 19 PROPOSAL TO T l f" C'l Y O CLEARWATER, FLORIDA, for 2009 Ilk IN ?113ti,1 l'r?T`ftt C t? '"I'I ,iC' i (09-0050-EN) and doints such other work incidental ilieretut ?tll in ac.c(,m is CO[It.ract c ocunlc°nts, IM11 _cad 20(`, ,]U," " MOLi•l'_ °VIO CONTRACT (09-0050-EN) Every bidder must take notice oftl) 1,tct that (" cry though his proposal be aacci.,pted and the doci. nicats , i rtcsd l)v the bidder tea d lion? air award is t-n?icle titici by tl "` MIS f ti z c> ? 1zeFzalf ? t the City of Clearwater. Florida. that no such a?xm] or 1 <?!l E) binding contract Nyotlww ,a c emit 1w- s , 11- J inance Director that airc available; to co cr the cost of'tl be done, or without fl. . - ' of the C'it;V Atl(wncy "Is ` the fi>rtzz < ' Iof LI)c cconlract ind all the pct°tinent docurl"Jen, i ` thereto having I)ccc a appmved by said City Attorney-, and Audi bidder is hereby charged with this notice, 111)f the l'''{'l 1. ,? 1 idclct.., <dso declares that the only person, persons, comp: av or parties interested in this Proposal, are narned in this Proposal, that It(, I-ms c. ircy,i ", it °ci tla Ad veil i sement, 11?<,ttttcaic???? to Bidd(°t•", C ontr"I '5( ls P1,111s, Sm lzi General Conditions. Special Provision-, and C"onfract Rond, tkii lic cat lily t•CoI,. ` nvcstigation a4 is necessary to dct ..,;c xtctzt cit. 111c a r'es t11tit if`ti7c I'r„pw -, Izce ??ccsA?, ?? i0I dic ('It f?I t "ic.r?... _ z ofcontract, hcrcto annexed, to l r, t zEttc°rt??l?. nmz "lhitl 1 tcr al c'c.? ali th- .e:qutre;cl tl "thin the t.itzzc 11wnttoncti its the General C'(Ild_ and accol `ink; to the requirements of the City of Clearwater, Florid [(A?,in and here.inu to set firth, and furnish the required surety bonds for the [Ollowin4 prices to wit: IzStpt71 # 5 ,wi"" Attachment number 3 Page 10 of 19 l? tlw ?w, I?ttt4t_ .;:7 tl at 1 Attaca7ol ' 1hond t 'st .„ 4 ,.. t, lriilnk, M th,, -im X11 NAM 8 a e 7 = %'olporatic ll l ltldividtll ll. (Ti Pltv_v 11 a?f [::{ O?.l'\"74tY3"'° "'4)41>j fr!C€V Attachment number 3 Page 11 of 19 -ow The, AIL Zip Codc I_ i1 41 :t1 V day of ......_ ' --Al AJ b Attachment number 3 Page 12 of 19 20091'W9 17" - i t IM f (., R _ D ate- Ac; . ;d.tt: Aidd P Ad Add A(7 : No, A, i NO, i; I)sitc: Attachment number 3 Page 13 of 19 s.'i;`skt li t•l. sf1.. 14 tE.'l't'Wp ik§6 dy Attachment number 3 Page 14 of 19 BIDDER'S PROPOSAL SHEET (Revised in Addendum No. 1, 1/14/10) PROJECT: 2009 BRIDGE REHABILITATION PROJECT # 09-0050-EN BID ITEMS UNIT QTY UNIT PRICE AMOUNT Bridge No. 155504 - Hercules Avenue ar Allen Creek I Fill void at east gutter and seal surface I LS $ $ 2 Fill void between southeast sidewalk and slope protection and seal surface 1 LS $ $ _ 3 Repair cracks, voids ands alts in concrete culvert 1 LS 7-1 7 4 Fill a in joint at northeast win wall I LS $ $ 5 Reconstruct ten foot section of northeast wingwall 30 CF $ $ 6 Fill void beneath east concrete apron 27 LF $ $ 7 Bypass Pumping I LS $ $ - Subtotal Bridge No. 155504 Bridge No. 155502 - Island Way West Bridge 8 Seal cracks in post 2 left (middle post west side) I LS $ g $ 9 Repair spall/delamination on bottom of beam 1-7 1 LS $ . $ 10 Repair delaminations and wire pattern corrosion on underside of bridge deck. 500 SF $ Repair cracking, delaminations and spalling of concrete cap and sheet piling at r 11 south abutment. 1 LS $ $ > Repair delinations and exposed rebar at northwest and northeast wingwall caps 12 1 LS $ $ 12a Repair open joint and delamination/spalls on southwest wingwall 1 LS $ $ Subtotal Bridge No. 155502 Bridge No. 155501 - Island Way East Bridge 13 Repair cracks and spalls on bridge deck 1 LS $ y 14 Seal cracks in east bridge rail 1 LS $ $ 15 Repair crack in underside of east rail 1 LS $ $ 16 Repair delaminations and wire pattern corrosion on underside of bridge deck. 500 SF $ $ 17 Repair delamination on bottom of beam 1-8 1 LS $ $ ?Y 18 Repair delaminations of 2uneffl c'11-)s I LS $ ` $ 19 Repair spalls of both abutment caps I LS $ @ q $ ;, 20 Repair joint between wingwall and south abutment and backfill erosion void 1 LS $ 1 ; I $ _ 21 Replace concrete in spali at southwest wingwall cap 1 LS $ Seal cracks and corrosion bleedouts in northeast, northwest and southeast 22 wingwalls 1 LS $ $ 23 Repair seperated joints between abutment backwalls and channel bulkheads 1 LS Subtotal Bridge No. 155501 $ Bridge No. 155503 - Douglas Avenue at Stevenson Creek 24 Repair spall and replace five foot section of handrail 1 LS $ o `$ Subtotal Bridge No. 155503 w Subtotal of four bridges (Items 1-24 $ 25 10 % Owner's Contingency I LS $ $ Total Construction Cost (Items 1-25) $ CONTRACTOR: BIDDER'S TOTAL- $ I? ' -(Numbers) BIDDER'S TOTAL $ .- a Words) THE BIDDER'S TOTAL ABOVE IS HIS TOTAL BID BASED ON HIS UNIT PRICES AND LUMP SUM PRICES AND THE ESTIMATED QUANTITIES REQUIRED. THIS FIGURE IS FOR INFORMATION ONLY AT THE TIME OF OPENING BIDS. THE CITY WILL MAKE THE TABULATION FROM THE UNIT PRICES AND LUMP SUM PRICE BID. IF THERE IS AN ERROR IN THE TOTAL BY THE BIDDER IT SHALL BE CHANGES AS ONLY THE UNIT PRICES AND LUMP SUM PRICE SHALL GOVERN. REVISED 1/12/2010 Item # 5 Attachment number 3 Page 15 of 19 W TILINSURANCE COMPANY One Park Circle, P O Box 5001, Westfield Center, Ohio 44251-5001 Bld Bond KNOW ALL MEN BY THESE PRESENTS, that we Casteo Construction. Inc. as Principal, hereinafter called the Principal, and WESTFIELD INSURANCE COMPANY, Westfield Center, Ohio 44251, a corporation duly organized under the laws of the State of Ohio, as Surety, hereinafter called the Surety, are held and firmly bound unto The City of Cleanvater. Florida as Obligee, hereinafter called the Obligee, in the sum of Ten Pencent (10%) of Amount bid Dollars ($J10%) of Amt. Bid for the payment of which sum well and truly to be made, the said Principal and the said Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has submitted a bid for 2009 Bridge Rehabilitation Contract #09-0050-EN NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the Obiigee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or Contract Documents with good and sufficient surety for the faithful performance of such Contract and for the prompt payment of labor and material furnished in the prosecution thereof, or in the event of the failure of the Principal to enter such Contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the penalty hereof between the amount specified in said bid and such larger amount for which the Obligee may in good faith contract with another party to perform the Work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and effect. Signed and sealed this 21st day of Januarv 2010 Casteo Constructiojy°Inc. (P.nnnc, (Seale ri, .. _ (Title) Westfield Insurance Company (Surety) ( a Teresita A. Love, Attomev-in-Fact/FL Lie. Res. Agt. (Title) 1 Printed in cooperation with the American Institute of Architects (AIA) by the Westfield Insurance Company. The language in this document conforms exactly to the language used in AIA Document A310, February 1970 edition. Item BD5084 W (11/97) # 5 of JACKSONVILLE and State of FL its true and lawful Attorney(s)-in-Fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings, or other instruments or contracts of suretyship -------------------------------------------------------- ----- LIMITATION: THIS POWER OF ATTORNEY CANNOT BE USED TO EXECUTE NOTE GUARANTEE, MORTGAGE DEFICIENCY, MORTGAGE GUARANTEE, OR BANK DEPOSITORY BONDS. and to bind any of the Companies thereby as fully and to the same extent as if such bonds were signed by the President, sealed with the corporate seal of the applicable Company and duly attested by its Secretary, hereby ratifying and confirming all that the said Attorney(s)-in-Fact may do in the premises. Said appointment is made under and by authority of the following resolution adopted by the Board of Directors of each of the WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY: "Be It Resolved, that the President, any Senior Executive, any Secretary or any Fidelity & Surety Operations Executive or other Executive shall be and is hereby vested with full power and authority to appoint any one or more suitable persons as Attorney(s)-in-Fact to represent and act for and on behalf of the Company subject to the following provisions: The Attorney-in-Fact. may be given full power and authority for and in the name of and on behalf of the Company, to execute, acknowledge and deliver, any and all bonds, recognizances, contracts, agreements of indemnity and other conditional or obligatory undertakings and any and all notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such Attorney-in-Fact shall be as binding upon the Company as if signed by the President and sealed and attested by the Corporate Secretary.' "Be it Further Resolved: that the signature of any such designated person and the seal of the Company heretofore or hereafter affixed to any power of attorney or any certificate relating thereto by facsimile, and any power of attorney or certificate bearing facsimile signatures or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is attached." (Each adopted at a meeting held on February 8, 2000). In Witness Whereof, WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY have caused these presents to be signed by their Senior Executive and their corporate seals to be hereto affixed this 03rd day of NOVEMBER A.D., 2 °2•, Corporate Uf8A®d? Seals ???®?e d NFl ..?Nsu ,.. Affixe ' 4 AL .-Of : SEAL ea- 'A M s . SS*. 1848 °`'° * .. '°°• State of Ohio 4ae .e,e,°` °.:eee...... County of Medina ss.: On this 03rd day of NOVEMBER A.D., 2004 , before me personally came Richard L. Kinnaird, Jr. to me known, who, being by me duly sworn, did depose and say, that he resides in Medina, Ohio; that he is Senior Executive of WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY, the companies described in and which executed the above instrument; that he knows the seals of said Companies; that the seals affixed to said instrument are such corporate seals; that they were so affixed by order of the Boards of Directors of said Companies; and that he signed his name thereto by like order. Notarial m e Seal \ A L Affixed S°•. % '? . William J. Kahelin, A rney at Law, Notary Public State of Ohio My Commission Does Not Expire (Sec. 147.03 Ohio Revised Code) County of Medina ss.: oA?, T OF .° 1, Frank A. Carrino, Secretary of WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney, executed by said Companies, which is still in full force and effect; and furthermore, the resolutions of the Boards of Directors, set out in the Power of Attorney are in full force and effect. fitness Whereof I have hereunto set my hand and affixed the seals of said Companies at Westfield Center, Ohio, this/ y of A.D., `Z ...eaeyaB .sF Caen. % SEAL, °01n° *'n.•"'J t Tf E? °; Pie 1 4 S? ??' Frank A. Carrino, ecret 4U1--10 Item # 5 BPOAC2 (Combined) (06-02) Attachment number 3 Page 17 of 19 BIDDER'S PROPOSAL SHEET (Revised in Addendum No. 1, 1/14/10) PROJECT: 2009 BRIDGE REHABILITATION PROJECT # 09-0050-EN BID ITEMS QTY UNIT UNIT PRICE AMOUNT Bridge No. 155504 - Hercules Avenue ar Allen Creek 1 Fill void at east gutter and seal surface 1 LS L Z2, l ..41- $ 2 Fill void between southeast sidewalk and slope protection and seal surface 1 LS $ AN , ( $ x 73 14 1 . 1 ? 3 Repair cracks voids ands alls in concrete culvert fl LS ;53 W L. 4 Fill a in joint at northeast win walfl 1 LS $ Li te ° $ I ?7 L`-y 5 Reconstruct ten foot section of northeast wingwall 30 CF $ ` 5>' 1 $ L4 6 C 6 Fill void beneath east concrete apron 27 LF $ 03 . 5 $ 3 -3(e A ! BV aSS Pumping 1 LS $ ) 75", o ....,- Subtotal Bridge No. 155504 $ Bridge No. 155502 - Island Way West Bridge 8 Seal cracks in post 2 lef. (middle post west side) 1 LS $ 1 `h $ 1 `I w ? 1 .9 Repair spalltdelamination on bottom of beam 1-7 1 LS $ 3.11 $ ' ? ;? • I 10 Repair delaminations and wire pattern corrosion on underside of bridge deck. 500 SF_ $ -? °cc $ r '~> oc° 00 I I Repair cracking, delaminations and spalling of concrete cap and sheet piling at south abutment. I LS So C, -? 12 dejmL non L ? I .po cd eb.ir it nu_:_ one lca5t -mmm al aps 1 LS $i' 12a Repair open joint and deflanlinationispaflls on southwest wingwalll 1 LS $ 3 d •cl $,°? Subtotal Bridge No. 155502 $ Bridge No. 155501 - Island Way East Bridge 13 Repair cracks and spalls on bridge deck 1 LS $ 1 %°;?w?j $ 1 r1 14 Seal cracks in east bridge rail I LS $ C. $ >G 15 Repair crack in underside of east rail 1 LS $ O $ 16 Repair delaminations and wire pattern corrosion on underside of bridge deck. 500 SF $ ? 0,0 $ 17 Repair delamination on bottom of beam 1-8 1 LS $'?dJ1Z : °,?I $ 1 18 Repair delaminations of both abutment caps 1 LS $ ' 21 r .?l $ r a 19 Repair spalls of both abutment caps I LS $ 0 L 1,i2? 20 Repair joint between wingwall and south abutment and backfill erosion void 1 LS $ ;_;l I I.- $ W 1 21 Replace concrete in spall at southwest wingwall cap I LS ?(6I so I $ I le t? 22 Seal cracks and corrosion bleedouts in northeast, northwest and southeast wingwalls I LS 23 Repair separated joints between abutment backwalls and channel bulkheads 1 LS $9H1 Ilj _ _ ; y H ,I L( ?. Subtotal Bridge No. 155501 24 Bridge No. 155503 - Douglas Avenue at Stevenson Creek v v? Repair spall and replace five foot section of handrail 1 LS $) m Subtotal Bridge No. 155503 _ Subtotal of four bridges (Items 1-24) $ $ a 25 10 % Owner's Contingency 1 LS $ u Cgf? $ L-- I .5 Total Construction Cost (Items 1-25) $-? j 5 CONTRACTOR: BIDDER'S TOTAL. $m (Numbers) BIDDER'S TOTAL 14 ( ',,k4 rk.-rr)„ ?4s_ "', (Words) THE BIDDER'S TOTAL ABOVE IS HIS TOTAL BID BASED ON HIS UNIT PRICES AND LUMP SUM PRICES AND THE ESTIMATED QUANTITIES REQUIRED. THIS FIGURE IS FOR INFORMATION ONLY AT THE TIME OF OPENING BIDS. THE CITY WILL MAKE THE TABULATION FROM THE UNIT PRICES AND LUMP SUM PRICE BID. IF THERE IS AN ERROR IN THE TOTAL BY THE BIDDER IT SHALL BE CHANGES AS ONLY THE UNIT PRICES AND LUMP SUM PRICE SHALL GOVERN. REVISED 1/12/2010 Item # 5 Attachment number 3 Page 18 of 19 WEST IEL INSURANCE COMPANY One Park Circle, P O Box 5001, Westfield Center, Ohio 44251-5001 ?I'A'ld Bond KNOW ALL MEN BY THESE PRESENTS, that we Castco Construction Inc. as Principal, hereinafter called the Principal, and WESTFIELD INSURANCE COMPANY, Westfield Center, Ohio 44251, a corporation duly organized under the laws of the State of Ohio, as Surety, hereinafter called the Surety, are held and firmly bound unto The Cite of Clearwater_ Flo»da as Obligee, hereinafter called the Obligee, in the sum of Ten Pencent (10%) of.lmount bid Dollars ($ (10%) of Amt. Bid for the payment of which sum well and truly to be made, the said Principal and the said Surety, bind ourselves, our heirs, executors, admini-t. successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has submitted a bid for 2009 Bridge Rehabilitation Contract #09-00 0-EN NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the Obligee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or Contract Documents with good and sufficient surety for the faithful performance of such Contract and for the prompt payment of labor and material furnished in the prosecution thereof, or in the event of the failure of the Principal to enter such Contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the penalty hereof between the amount specified in said bid and such larger amount for which the Obligee may in good faith contract with another party to perform the Work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and effect. Signed and sealed this 21st day of Tanuarv , 2010 Castco Constructio nc. j9 (Seal Westfield Insurance Company (Surety) ( a Teresita A. Love, Attorney-in-Fact/FL Lic. Res. Agt. (Title) 1 Printed in cooperation with the American Institute of Architects (AA) by the Westfield Insurance Company. The language in this document conforms exactly to the language used in AIA Document A310, February 1970 edition. Item # 5 BD->""084 W (11/97) of JACKSONVILLE and State of FL its true and lawful Attorney(s)-in-Fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings, or other instruments or contracts of suretyship_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ • _ _ _ _ _ - _ _ _ . . _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ -- _ - - _ . LIMITATION: THIS POWER OF ATTORNEY CANNOT BE USED TO EXECUTE NOTE GUARANTEE, MORTGAGE DEFICIENCY, MORTGAGE GUARANTEE, OR BANK DEPOSITORY BONDS. and to bind any of the Companies thereby as fully and to the same extent as if such bonds were signed by the President, sealed with the corporate seal of the applicable Company and duly attested by its Secretary, hereby ratifying and confirming all that the said Attorney(s)-in-Fact may do in the premises. Said appointment is made under and by authority of the following resolution adopted by the Board of Directors of each of the WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY: "Be It Resolved, that the President, any Senior Executive, any Secretary or any Fidelity & Surety Operations Executive or other Executive shall be and is hereby vested with full power and authority to appoint any one or more suitable persons as Attorney(s)-in-Fact to represent and act for and on behalf of the Company subject to the following provisions: The Attorney-in-Fact. may be given full power and authority for and in the name of and on behalf of the Company, to execute, acknowledge and deliver, any and all bonds, recognizances, contracts, agreements of indemnity and other conditional or obligatory undertakings and any and all notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such Attorney-in-Fact shall be as bonding upon the Company as if signed by the President and sealed and attested by the Corporate Secretary." "Be it Further Resolved, that the signature of any such designated person and the seal of the Company heretofore or hereafter affixed to any power of attorney or any certificate relating thereto by facsimile, and any power of attorney or certificate bearing facsimile signatures or facsimile sea! shall be vaiid and binding upon the Company with respect to any bond or undertaking to which it is attached.- (Each adopted at a meeting held on February 8, 2000). In Witness Whereof, WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY have caused these presents to be signed by their Senior Executive and their corporate seals to be hereto affixed this 03rd day of NOVEMBER A.D., 2004 . y.•....aay„e Corporate 4' N* IR,$&, e,. ; Seal s \ „pU... nr4e, \`nt9 A1. 1, " . ,.... , .., '., ' °,,.aweiUUpgs •°• 'Aso, ? s Affixed % a ` • Ste - ° s 8 9 E AL i t, Z ) TEQEi 2 .41: SEAL State of Ohio ..,,,'° .........••° County of Medina Ss.: ..... WESTFIELD INSURANCE COMPANY WESTFIELD NATIONAL INSURANCE COMPANY OHIO FARMERS INSURANCE COMPANY r Sy: Richard L. Kinnaird, Jr., Senior Executive On this 03rd day of NOVEMBER A.D., 2004 , before me personally came Richard L. Kinnaird, Jr. to me known, who, being by me duly sworn, did depose and say, that he resides in Medina, Ohio; that he is Senior Executive of WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY, the companies described in and which executed the above instrument; that he knows the seals of said Companies; that the seals affixed to said instrument are such corporate seals: that they were so affixed by order of the Boards of Directors of said Companies: and that he signed his name thereto by like order, Notarial Affixed A,P: \\`?'r//? . ° ® °? v ° • VAIliam J. Kahelin, A rney at Law, Notary Public State of Ohio My Commission Does Not Expire (Sec. 147.03 Ohio Revised Code) County of Medina Ss.: r? ®F® I, Frank A. Carrino, Secretary of WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney, executed by said Companies, which is still n ful! fc7rce and effect: and furthermore, the resolutions of the Boards of Directors, set out in the Power of Attorney are in full force and effect. tness Whereof I have hereunto set my hand and affixed the seals of said Companies at Westfield Center, Ohio, this/ y of A.D., dlD SEAL It =c): SEA, 184 a Secretary Frank A. Carrin®, ecret 41_4 Item # 5 BPOAC2 (combined) (06-02) m T m O 0 v N N (D Y J r T m T m c O 2 F U) p ? T CO O ? c CU C7 J z w and seftoa and aIIJAM Island way w vi r z Z m fn O LO O Q O C6 ' O L O a) -r- -0 U E O Z) J Z U O ^L LL onq c>LL ?'E E° 1? TN 2".°. y ° a o c U?LL vv.9 2> 9QY2 61 n t W o Tn o2N °oa G.? C? G.? r? V and salnoaaH Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Approve 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.), as more particularly described in the ordinance, subject to project completion on or before September 30, 2012, and pass Ordinance 8145-10 on first reading. (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 Item # 6 Attachment number 1 Page 1 of 1 EXHIBIT A Legal Description of Property Legal Description of Property prior to Vacation of Right-of-Way (as defined in the Development Agreement): PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. Legal Description of Property after Vacation of Right-of-Way- PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°15'44"E a distance of 35.00 feet to the Point of Beginning. Item # 6 Attachment number 2 Pa e SKETCH of DESCRIPTION THIS IS NOT A BOUNDARY SURVEY SCALE : 1 ° = 50' 0' 50' 100' r r r ` LOT 59 35., 9 corner UO•* NW 60 ----------- Ti e(P r LOT LOT 106 ' -------------- i Q Radial "'a 60 ,r-------- _ r r r r J -LOT3a7------ _i ; ----------------- ------------- , ' r ------- ca - --- ' '-- to LOT 108 i!J LOT 61 , I + r r!? , r _ - `--- i _`--- q r ? + ' -? LOT 109 ; , r Z , J' LOT 62 ; r 180- i 35.00 4,?+ - - ---_dol r' LOT 110 ; V $W Corner lot 62 r-------- 63 ;r ----------- r LOT , i r r r CURVE e DATA LOT 111 i r r i r e , Westerly BEARING Boulevard lying ARC 180.12' West LENGTH of and adjacent 180.11CHORD' acent to LENGTH the CHORD r r boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDMSION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest comer of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing SOS'35'03'W to the Southwest comer of said Lot 62; thence N80'34'24'W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of acid Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N01r35'03*E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82-15'44'E a distance of 35.00 feet to the Pant of Beginning. Contains 6,286.20 square feet (0.144 acres), more or less. NOTES: LEGEND 1. NO UNDERGROUND NISTAL1AT10NS OR IMPROVEMENTS HAVE BEEN LOCATED EXCEPT AS SHOWN. 2. NO INSTRUMENTS OF RECORD REFLECRNG EASEMENTS. RIGHT OF WAY AND/OR OWIERSNP WERE ID nEtnlFlaml FURNISHED TO THIS SURVEYOR EXCEPT AS SHOWN. ? PRO113901K LAND SAY= 3. THIS SKETCH DOES NOT REFLECr OR DETERMINE OWNERSHIP. 4. USE OF THIS SKETCH BY ANYONE OTHER THAN THOSE PREPARED FOR WILL BE THE RE-USERS p EE or NESOW71CN IiORMM SOLE RISK WITHOUT LIABIFTY TO THE SURVEYOR. ((?F53 FaD rIA<AIND 5. THE SKETCH WAS PREPARED WRHOUr THE BEIEFIT OF A CURREM TTILE COMMITMEM AND IS POB POW OF I6lyMIG SUBJECT TO FASEIADn NQUS-OF-WAY AND SIMILAR MATTERS OF ME. POC PONT OF OXISKSENT 6. MERNMAN BIASED ON THE WESTERLY RKBR OF WAY LIE OF GRIFVIEW BOULEVARD AS KONG SW35.03-W (MIMED. Prepared for and Certified To: DATE; rDrawing No. 902601.dwg? Project No. 9026 Keith Zayoc and Associates, Inc. September S. 2009 Pages Checked By KoM Fdd Book Drawn By LAC SURVEYOR'S CERTIFICATE I hwVW ON" lot the SKM depide6 hereon .m Wfall abler MY RESPONS7LE SUNCOAST LAND SURVEYING, Inc. OWM an I» del ewe, mW .aee the MNww TWW-4L sWOM »L f«Rn by 111 FOREST LAKES BOULEVARD the Rom I m OF PPAIESSIOK Lne SLWAYORS In qqtr?r IG17-s, M VA OLDSMAR. FLA. 34877 AOtDIST 7114 OWE P1NAot to Seelon 472027. RDRIDA STIIMFS W VLO WIHOUT TIE AND TIE CROW Rl?q SFI1L OF A FLORIDA UCDSM BOUNDARY - TCPIIGRAPINC - CONSTRUCTION STAKEOUT SURtEVOR AND MaIrPPFR'. Y A. COPELAND, LS No.3279 11, ' L 45f3 PHONE: (813) 854-1342 FAX: (813) 655-6890 CURVE RADIUS DELTA ANGLE C1 6017.52' 01' 42 54 C2 5982.52' 01'42 54 179.08' 179.08' ND8'35'0'E The Easterly 1/2 of Gulfview 1 of 1 Attachment number 3 Page 1 of 2 ORDINANCE NO. 8145-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, VACATING WITH CONDITIONS, 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; Beach; WHEREAS, Beach by Design identifies a need for additional public parking on Clearwater 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 B, 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 to enable the construction of the Project; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. The following land: Ordinance No.lWFM-#(6 Attachment number 3 Page 2 of 2 Being 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 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 as more particularly described in Exhibit B attached hereto. 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: 1) The Project shall be constructed and completed in accordance with the Development Agreement on or before September 30, 2012; 2) the Parking Covenant required by the Development Agreement shall be executed and delivered by the fee owner(s) of the Property, with a joinder, consent and subordination from all lien holders and any other person or entity with an interest in the property superior to and with priority over the Parking Covenant, which makes the Parking Covenant a valid, binding and permanent, superior, restrictive covenant against the Property (subject to the terms thereof), and shall be recorded in the Public Records of Pinellas County, Florida (the "Conditions"). 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 conditional or permanent certificate of occupancy for the Project. If the Conditions are not met, this vacation shall be rendered null and void. If the Conditions are 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: Pamela K. Akin City Attorney Cynthia E. Goudeau City Clerk 2 Ordinance No. 8145-10 Item # 6 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Accept a perpetual easement entitled "Stevens Creek Offsite Utility Easement" encumbering 5599 square feet, more or less; and a perpetual easement entitled "Stevens Creek Offsite Drainage and Utility Easement" encumbering 153 square feet, more or less, over, under and across respective portions of the West 1/2 of the Southeast 1/4 of Section 3, Township 29 South, Range 15 East, each being conveyed by Clearwater Volunteers of America Elderly Housing, Inc. (Grantor), a Florida not-for-profit corporation in consideration of receipt of $10.00 and the benefits to be derived therefrom. (consent) SUMMARY: On May 19, 2009 the Community Development Board approved the Preliminary Plat (PLT 2009-001) and related Flexible Development case (FLD 2009-03012) submitted by Habitat For Humanity of Pinellas County, Inc. (Habitat) to permit construction of Stevens Creek Subdivision, a 51-unit affordable housing subdivision of detached dwellings located at the southeast corner of Sunset Point Road and Pineland Drive. The project abuts the Clear Bay Terrace Apartments (Apartments) owned and operated by the Grantor. The 5599 square foot Offsite Utility Easement will permit extension of the City's existing sanitary line on the Habitat site to connect with the currently private sanitary system serving the Apartments property. The 153 square foot Offsite Drainage and Utility Easement is granted to permit construction of a stem wall for a stormwater line that will be installed to convey stormwater from the Apartments into Stevenson Creek. Both easements are perpetual and irrevocable except upon mutual agreement of both the Grantor and the City, or upon abandonment of the easements by the City. Review Approval: 1) Legal 2) Clerk 3) Assistant City Manager 4) Clerk 5) City Manager 6) Clerk Cover Memo Item # 7 Attachment number 1 Page 1 of 9 r, I C ]I` ar,-c2 D No "^I10-420-010(} STEVFNS 'REEK OFF IT DRAINAGE & UTILITY EASEMENT FCIR AN0 !N I: ONSEDERA710N of the ,jm of TE r F `1 II-, 1 + r a 1 rho r??? ; , Ele ` ,,,jr . + t5 t?' r ;r + ?rc CLEARWATEP VOLUNTFER r,G AMFRrt--A ELL?FRL Y N ?JSING INC . 7 r -.f+rl -1 r ?I r 1=?7', t ?&.1 r ??c_ ? ,-?.'. Ilo-,-, i? i .-? Ir,. 3'- 1 1 1 •1; .:?' i 14..7:?f + f I I1 "r ] 31 1'., rT r CLEARWATER r-f 71 J~ICP Y [-i it _,or oratlot if- foss th, I r, --scribed land lying 1- i i I. i , _t C That ortio- , c,, tn, t^?s ss (_)F t}ie Southeast 1/4 of Section 3, Tuwnshi?a 29 " OO'it;h. Rarl:IMF 1 ti East, PiWlas Ounty. F (nvid?3 c;:??t,tar111f1C? 153 square feet, more or IesS; and be q f?i are ;?c?r?d?LlfBi?V described and depicted in that certain 2-page parcel sk.etch and description appended hpretc: afar! ?u this referencf, iiiade a mart hereof t"Easement Premises'i 11 - rl _?- g raInage a rd utility r I _?tl in and i, )i`4 Th, CITY OF CL ARWATER, FLORiDf7. yl Install r "r:r . r e 1?C:I S t lricr ?r+ 1- i I :,f CF EARWA?rR. FLOYRtDA rea, ?r r.' lar +l t t ( :r t Sar"1 ? ?i r !rte f rst further r ,r 1? ? rr, Ott I, I r'1 t. + r1 _ ?f' 1 _9 i a -r r i , i 1 _ f 1 , Si Attachment number 1 Page 2 of 9 i ? - it '? ? i• - it of b ten ? N WE "NkSS WHEIEOF, t r. iu 'antor i se prf i cfay c- CLLARWArFR 'v'Q t '..1NTEERs C` A 1?1 L `R A ELDERLY errace t `I' 5TATF C),- \/IRG'NIA, CJDJ -iNTY i FAt1? A I , i the 1 . and 'I r t"'Ifl? Item # 7 Attachment number 1 Page 3 of 9 CON, I I [ ? ? I fir ? . ?• I p? ? I .,• i a i X13' r.;j_! I'? I ac 3 "i11i ii+' ili lC r1 . STA.1-L- OF COUNT" O 5 UNITED STATES ;DEPA,R T Mk N-7 : k t .USI vt AND URBAN DEVELOPMEN-11F v - ^- Tk v? :?ir'r 11. - - f' yr lo r, I'd I - - C I I f> Item # 7 Attachment number 1 Page 4 of 9 r 1 I C 6531 CY) t ? gg i is r - k h ?e r? 'ti Gt,r ? L?j .r 1 n F 2 I _ u siE T 8=Ce W i i . G r h. I I ? N c"M Item # 7 Attachment number 1 Page 5 of 9 11 it 1'I /4 1 hd I' II'i 11'?? , ?A iF??•k `',i'; I_ ???k...I I ','! I , •;l?f ;I. 1`I` 111. + s, .I.I ?_.' 1r. :?? ;. .l>I li° 1 11..'.1 ?`?; ;l'I ;?. II"•.'' ,,,I F S`., ?. _ v. 1 1 ?•, ''J [ I , +'. 1 _-•,:? 1'`;r? ` 'l 1 lam,: I'?,? .i i;J ??1 1rJ_J?i III Itr i `?; ? IF ?'v?1 I "?? ?'?. 1 ? ?I I: f f ? 1; }?? ` ,:?I ,1 f,'h.'•i?"J ,; ? J; ".I, h,l ,( .1 '??? 1. `? I? , +I a ,? : S l ',1J1 ra?'f i w„ N TT -_ r r r P l,' f_,1 1 _ f -29-15. S ",I D 2. 1, 7y _ ?,;r. 3. 1 l 1 • _ L ?'`'2E l;,?'11 ?J? _ r? f L -1 +Y r?l ???'''FLi •.?f• i_fCJ:, r?(.l ?. I_ .?,f ?,?1."JI II F ,'JA.T', 1' _ I ? PJ?- ?. r'?_47 E t!I.?Iflj1p J "arNa';"?hJ?. ?.'I• r?`.. i?I;,lll,)?J- F. i'11?,` i>:? '?`a ?t1 4, 6 CH 0i ILv NL ' N&I A KUNDA15' I r'F P? I;17;'f 9 I(It, ?r4F E ? ,lf ?.dir?1?1.1f.? ??.J?I ?•.? iJ ,;1??L ' l?, 1;1 ;'.r. 1111 1 P;,; J;1`C' i:1'r, P•1 ?,f_rJr,; hl?'": - 17 ?? P! q C R z,•:I''f r ;;'I' LB 2168 f d ? NOT VAL ll? .J'-AL OF Fl ? I 1: t I I 1°I1:.EC 2 6 i FAIR, INC. i n ,1, T'It • ? 1 r. I Item # 7 Attachment number 1 Page 6 & 9 AFFOAVIT OF PNO LIENS 1 ,I-I nn BEFORE ME r -1 , ju[n t.:-- _ That Pr r o of the G of x ? the ?C]ta23leaS} r-j ?ei,;l ,rl3 ? I ?LN fl fl? C fs So= Range Q Ea st, POWs Count, _ FWr0a, c,.)rt=1f'?Ir ;! ? jf 3 ?. 91 sC?i!„j , L; f,, ,f,, ttlrfl r) rp<? S and bemg more pa1"tiC ughy deschbod and App iqed N , , 'thaa or`tari1 _ D a g r pw,^ el sk,+?tu? anC7 desr,.rqtiCn aF3p"ded 10 0tED and b t h i s reference nydp a pa l hereof Vin` werneM Prwroes ' 3 T1 I" j , I t N&N i 'NONE'' 1 111A Item # 7 Attachment number 1 Page 7 of 9 ELDERLY Terrace, ' le?irvvats i Item # 7 1 OF 2 `tEF7 2 R l IN C, ry U i -- i 26 31 _ L l.J.. G.. Ia J i r NOT A D F UT 1 L I _?..m ` A Se Item # 7 Attachment number 1 i T' 1 ?. 3 S ;s, JN SHE DC'` ??i F SECTION 1 2. L 17Y 1, ?C YiI IJ-? ,1'?Y 1?v ??? ? ? ? ?'?.? ? ? _ ,?I''? I l h?hll ? ?? { ?E[., ?'1 ? `, ???.1 ? ,'? r?r ??'? f?? f ?i ' ?:_ v ?i1??rf •?r Lf,'? I . ?. `?_ k,?',?aI. ,+'''P?[ ? c ??? ?l`1:= F f _ ,?' ? Iy QLEDFIQ I _ :f,??I { 1 ?0,, LB 2168 { Tf! ~ I( LjD W71-101- OF A FLORIDA N OF NAG UTUTY. ,ESE- Item # 7 Attachment number 2 Page 1 of 9 0 No TE EM CREEK OF"FS]TE UTILITY EASEMENT FOR ANCI Its ONS{DERATlON ,e rr p, r R ?I ; ?I err ?rI'? I ? ELDERLY HOUSING, i ?r-I CLEARWATFR VOLUNTEERS, IOF A.I'V'iERtc, I, _I Nt. III - I OF C "FARWA?TER, FI OR'!DA _ - fy i _ I I ?r r I?I 11 r. r I That portic>r} ,)f the VUesI. o" the Southeast 1/4 of Section Townsh p 29 SoLith, Range 15 fast ineilas County, Florida, r?ontair?ing 5599E sglc are feet, rnore or less; and heing chore partwLiL ar-i j described and depicled if, that certain 2-page parcel sketch and description appended hereto aIid by !his reference mach a part hereof ("Easement Promises") T' sanitary sewer and ratiFity ICI t:j I,p @,I r ] r ?r The CITY CiF L ARWATER, V LORt,D A - ;: ?I -r ]rl Irr I'?? ? , - j , and tTl con tru . t?.',?Itl ? -1 ,r.F I rt. iL_p Ir 'I r- ?? it r { IC'I .r r P- 1-all 7t ;' F ?9r 9I +??,j_''fl II r- -I] y _31 a ?' 'nd the G T'r OF CLEARWATER FLOROA , ,° rl It fu rt, n, iI er _1 I jr 7 I t fl "i to -id ? r r I I r i i 1 Item # 7 Attachment number 2 Page 2 & 9 c 1 tpIIt tY ?1o'J f _ r if :f N - !IC, tr- d to tht -I 7 _ r -1 F T'" T - r r-. 6 , „f d1 t . dev 1 F7NFS:5 WHEREOF, we and n)n CgaN"f' L 14 r M - ?? ` day of 1 and clA wl'md LEARVt ATER' C)LUNTL RS, C ?MF jr I- of ELDERLY HOUSING, M! I M /a fc1par Hav fi"t r'racn vy FN r:_ . STATE OF MGM S COUNTY C)r FA_IRFAX ? f f i f ?rir ? ? , `. a ?I rr i i? _I 1. r PAY soon expk-- r? - Item # 7 Attachment number 2 Page 3 of 9 --N =717, --10 -_,? -1 C - _'?1f I .i l_ t;lll t II' ' 0 RIi ? _, rl 11;:1 ' 7r- A!? Si ani _ j I _«I 'I C I " r _I t r r I { I ii I I I? ?If I I r ?{ _If"r"II?? f_y I_11 t-, f _1 1r?:. r ?L? I I F I 'UNITED STATES DEPARTMF-N!T° `l ea AND URBAN DEVELOPMENT R FI -';Irl r - F rsr'*I, STATE COUNTYOF__-_ ply ?krl v It- 1 a Item # 7 Attachment number 2 Page 4 of 9 3 c 5 L S,86-00'00" Attachment number 2 Page 5 of 9 ? 1 t s..? t t I l' ? y I, I` ia?_ ?,11'I 'I: t I +'??_ I . I LL i I'?'F ??; ? i (I I,?, I ????' 'f ? ?T (????;r II 11 „_; r•ai II ? ??? ?;? • I ' F, 11,i }!I 4?M? 1 •.I .. S??,,, il'J i' I:F" I• 'lJ 11..- I ??'.??O I'l` t11 f1? I? 11 '•??..1 -'..•y ?Ii. 1 1'11 1 .? ?. 4 I ??/• L ? L ._! r1 ?'.?? L. ?I?? ?L I I.J J 1 I l' J L. `hI 1Y 1 .r f+Yr\/ '` ?lr i y 111_ 11I Vf t?. r ?'I IY??.,f- i ??I ?J -.?? I •?, 1.._f _.i? ? i ?i, i?'l'_ -..r. t . ?? ?1 i? h E- ? :IFP11... fJ 1; 'Yf I tJ h .F 11. I1 1N if;• 111 7ET (0. 1 -"j ?N THE r r-, 9-15 1 NE FA ? F r TIP r r h.k!' I,o,"?. ??•?1;; 1 . P+ ??1 ?I_IrJ 1`11. `E R.jF^J? "?1?Ja 'I':JI? 13E L 1IN'-? 1 7 hl[, } r TI Al' ? ?,rl I ?, I I?, I+ I: I JI ICI' ?:tJs. Jl ?. 1..•ll .I?;.i .fJ??f?. ,..14 a I,I. l:. r:, 1'11'' i '.J l???l, I? ?r.. 1.. ?I ?i ,.,.,,? - ,F, IIi I?Fri. F h R ? 1638 J_ •+'F_ j'. sII; . I? I Attachment number 2 Page 6 of 9 ,A HDAVj F NO LIEN TAT COUNTY ? rh F? a; H F, T?l r- T ¢I,. W` fit of the t)i,' easy Town I ' ? _ Pjn0as woLlrlty, r Ior1,Cla, an?4J f)elinq Tl"1C;re, part;c!..llarfy desLrbed and .,cpri,l d fT f''1 ap( Cf E?$C1'1, ?JtlC7ll :aC?;?{?i?C?F'fwd hF2 f'f_?i+; w.rr fn; ?EC±; ITtar?., }eft by this hlereof 1 "Ease'-leT t P F, r 3 tP? i i 'NONE" 1-1,i T- P =- p i Attachment number 2 Page 7 of 9 Sim W TI L ,ARWATFR 'QL JN7 ,ailIFPT F 1- D E f?'_ Y s- C14U S5 N G , '' N C ill f) ; t-] a r gay Item # 7 Attachment number 2 Page 8 of 9 I 1 ? -- 4 is ?? rn r L4 . 86` E r I.0 ' ,. JO ' J2' r M-i HEFT' 1 OF r~~ f [. NO]' A '-lL E I P TE\ l { Item # 7 Attachment number 2 Page 9 of 9 71 I• • ? V I l ? I I I ? r4'? _, I ,r??, _I YF Ir i, ,} II r','? ? ??`1 fir` 'i ,II. °•i`d ' i ± J' t _I, F I'll ` " ? F 't, fJl`? I`? _I'°. I' ? "? ' 1 ,F, " )1 t I •, ;- I I? I I I I I Fe ?? Tl..?j t.I I CON! r',1, ?IG f',, , L J R LESS. APT a= FD OF ?I I --2-1r l,: .I IN C. • f . - - _. 17 ??,- Hl S .'_ A',F".. ',, 1f?Fl,77? i:., I?:_I?'y?F. ?•?? ?, 11 ?f ?? ?if ur?'r,?i? -?, 1w1 _- '? , . Y,..I T I ?. MAY BE F . i ?F a v W01 i I' ?I'?' ?fl }1 _ 7 C 1 F'.`y r{, I l?.r 9 F{' - 2168 I ? I II - AL OF A R.-OF1 0i ? ?,? ";`? ear ?R ' ? I ? :,' , i I ?• .`? , `??y. {p?j l ?I 2,1 1'?. r r S-1 CREEK I T El' Item # 7 Attachment number 3 Page 1 Of 1 SEDEEVA ST SEDEEVA CIR BERTLAND WAY STATE ST ALOHA LN w m w n ¢ w > w ? Q ? o w z SHERIDAN RD Q o ? Z U 2 ? O U U W Q 2 O O Z 2 3 PEE Sj???N50N ? ¢ w 0 z y 0 v I? Q o o ¢ w o ti L 9 O? O? FAIRMONT ST w z 0 0 z i w n ¢ OL wo F?e? Q 00 ' 4LE CLAIRE DR F?yN ?c SANDY LN MARYL RD TERRACE RD Z FAIRMONT ST 0 PARKWOOD ST SPRING SPRING LN z TAMES ¢ m JOEL LI BENTL OTTEN ST AVEN SENT LN FAIRMONT ST K PAR To m o Cl VOLUNTEERS OF AMERICA Legend Parcel Boundary N earwater EASEMENTS ! Bldg Footprint j;; r Clearwater Service Area W E Prepared by: Engineering Department Outside CLWTR City limits Ite m # 7 s Geographic Technology Division 100S . Myrtle Ave, Clearwater, FL 33756 Ph: (727)562-4750, Fax: (727)526-4755 Map Gen By: JHH Reviewed By: EB Date: 6/24/2009 Grid #: 260B S-T-R: XX-XXs-XXe Scale: N.T.S. www. MyC learwater. coin LOCATION VISTA WAY z Q °z o ¢ Z 'a CAROLYN LN Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Approve an increase and extend existing purchase order (BR505656) for MicroCg with Environmental Operating Systems of Bourne, MA through September 30, 2010, increasing the purchase order value by $83,543.04, for a new contract value of $182,623.04, and authorize the appropriate officials to execute same. (consent) SUMMARY: MicroCg is a chemical that optimizes the biological removal of nitrates, a pollutant in wastewater. Nitrogen removal during wastewater treatment is required in order to protect the marine environment and maintain Florida Department of Environmental Protection permit compliance. MicroCg is proprietary and is the only chemical denitrifier that is non-flammable and does not pose a fire hazard to the plant operators or the facilities. Under normal operations, small quantities of MicroCG are used to compensate for biological variations or to "polish" wastewater denitrification and to maintain regulatory compliance. With the start of active construction of the Marshall Street APCF Air System Upgrade Project in June 2009, daily dosage of MicroCg was increased. This project takes large portions of the plant out of service where denitrification normally occurs slowly in these channels and tanks. During this Capital Improvement Project, an elevated amount of MicroCg was used to accelerate denitrification within the remaining tanks of the plant. The Air Systems Upgrade is estimated to be complete in May 2010. The current purchase order value is $99,080.00 with the guaranteed price period through May 31, 2010. Environmental Operating Systems has consented to extend their existing price schedule through September 30, 2010. Sufficient budget is available to fund FY2009/2010 in the WPC Operations operating cost center 0421-01351-551000-535-000-0000, in the amount of $83,543.04. Type: Current Year Budget?: Other Yes Budget Adjustment: None Budget Adjustment Comments: Current Year Cost: Not to Exceed: For Fiscal Year: Annual Operating Cost: Total Cost: to Review 1) Office of Management and Budget 2) Legal 3) Clerk 4) Purchasing 5) Clerk 6) Assistant City Manager 7) Clerk 8) City Approval: Manager 9) Clerk Cover Memo Item # 8 Attachment number 1 Page 1 of 1 Environmental Operating Solutions, Inc. environmental 160 MacArthur Boulevard, Suite 6 Operating Bourne, MA 02532-3919 No, olutions no i Phone: (508) 743-8440 Fax: (508) 743-8443 www.eosenvironmental.com Toll Free: 1-866-MicroC-1 Salesperson: Peter Hunt /jw Customer Info: City of Clearwater 1605 Harbor Drive Clearwater, FL 33755 Ship To: City of Clearwater 1605 Harbor Drive Clearwater, FL 33755 CUSTOMER QUOTE Date: January 27, 2010 Valid Until: September 30, 2010 Product Packaging Units Total gallons Price / gallon* Total price MicroC TM bulk 1 4,500 $ 2.94 $ 13,230.00 MicroC TM bulk 1 4,000 $ 3.05 $ 12,200.00 MicroC TM bulk 1 3,500 $ 3.19 $ 11,165.00 *Prices quoted include all shipping charges 1 - 3 stops 1 - 3 stops 1 - 3 stops Attached please find MicroCg pricing extended through September 30, 2010. We look forward to continuing our work of providing MicroC Premium Carbon Sources. Item # 8 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Approve the Annexation, Initial Land Use Plan Designation of Residential Low (RL) and Initial Zoning Atlas Designation of Low Medium Density Residential (LMDR) District for 1624 Stevenson's Drive (Lot 12, Block A, Stevenson's Heights, Section 10, Township 29 South, Range 15 East); and Pass Ordinances 8135-10,8136-10 and 8137-10 on first reading. (ANX2007-03007) SUMMARY: This voluntary annexation involves a 0.209-acre property consisting of one parcel of land occupied by a single-family dwelling. It is located on the west side of Stevenson's Drive, approximately 20 feet south of Claire Drive. The applicant petitioned for annexation in 2007 in order to receive sanitary sewer and solid waste service from the City. Errors in the delineation of the Preservation (P) future land use plan boundary line needed to be corrected prior to proceeding with the annexation. Sanitary sewer and solid waste service was initiated in advance of the completion of the annexation case while the Planning Department coordinated with the Pinellas Planning Council to adjust the Preservation (P) boundary line on the Countywide Future Land Use Map. This process has been completed. The Planning Department is requesting that the 0.06-acres of abutting Stevenson's Drive right-of-way not currently within the City limits also be annexed. The property is contiguous to existing City boundaries to the north, south, and west. It is proposed that the property be assigned a Future Land Use Plan designation of Residential Low (RL) and a zoning category of Low Medium Density Residential (LMDR). The Planning Department determined that the proposed annexation is consistent with the provisions of Community Development Code Section 4-604.E as follows: The property currently receives water, sanitary sewer, and solid waste service from the City of Clearwater. The property is located within Police District II and service will be administered through the district headquarters located at 645 Pierce Street. Fire and emergency medical services will be provided to this property by Station 51 located at 1720 Overbrook Avenue. The City has adequate capacity to serve this property with sanitary sewer, solid waste, police, fire and EMS service. The proposed annexation will not have an adverse effect on public facilities and their levels of service; and • The proposed annexation is consistent with and promotes the following objective of the Clearwater Comprehensive Plan: Objective A.6.4: Due to the built-out character of the City of Clearwater, compact urban development within the urban service area shall be promoted through application of the Clearwater Community Development Code. Objective A.7.2 Diversify and expand the City's tax base through the annexation of a variety of land uses located within the Clearwater Planning Area. Policy A.7.2.3 Continue to process voluntary annexations for single-family residential properties upon request. • The proposed RL Future Land Use Plan category is consistent with the current Countywide Plan designation of this property. This designation primarily permits residential uses at a density of 5 units per acre. The proposed zoning district to be assigned to the property is the Low Medium Density Residential (LMDR) District. The use of the subject property is consistent with the uses allowed in the District and the property exceeds the District's minimum dimensional requirements. The proposed annexation is therefore consistent with the Countywide Plan, City's Comprehensive Plan and Community Development Code; and • The property proposed for annexation is contiguous to existing City boundaries to the north, south and west; therefore the annexation is consistent with Florida Statutes Chapter 171.044. Cover Memo Item # 9 Review Approval: 1) Legal 2) Clerk 3) Assistant City Manager 4) Clerk 5) City Manager 6) Clerk Cover Memo Item # 9 Attachment number 1 Page 1 of 7 M JOE v? OTTEN ?H?EAIVDENI '1 PROJECT i ?. W SITE ¢ • SANELY g i 0 i MARY L Rte SENT LA TERRACE RD O ST \ i FAIRh9 T ST O BECKETT ©J ST ul 1 + b? : a y•'? 1. D ¢ PARK N© ? BECKETT ST LL, MARSHALL ST ©© ST ? _ ? lNpppBi LL1 GRANT 0 rr LL z 0 R SPRING ST m PRINGB O 7 CAR LT4P1 ? ST o _ RUSSELL ST OVERLEA ST L = ? TAN GERINE ST w ENGMAN Z 77 F ST ENGh 9AN ST DR w ? PINEBRQQK LA SALLE ST a 5 ¢ 0 © PALM BLUFF ST z its C Grssr LA ? ADMIRAL WOOD SON ST 7 LU ? ? > z z __ N HIBISCU ST z L m CEDAR HIBISCUS ST z ST ? h3ETT © ?0 U) Lu O ? U ? ? ? S FiIBISCU PALMETTO ? ST Location Map Owner: Arentha L. Jenkins Case: ANX2007-03007 Site: 1624 Stevenson's Drive Property Size (Acres): 0.21 ROW (Acres): 0.06 Land Use Zoning PIN: 10-29-15-85446-001-0120 From : RL R-3 To: RL LMDR Atlas Page: 269B S:APlanning DepartmentT D B\Annexations\ANX - 2007\ANX2007-03007 - 1624 Stevenson's Drive - Jenkins\Maps\ANX2007-03007 Location Map.doc Item # 9 Attachment number 1 Page 2 of 7 { '? iIt .l 1J?' 7 .k r .t A I rr r Sr 1 - \ ?? ti4F Y 4 ti " G. r ? 2 ? 14 • r A-4 ! 1=.zll;ly:??ft'1S1 Aerial Map Owner: Arentha L. Jenkins Case: ANX2007-03007 Site: 1624 Stevenson's Drive Property Size (Acres): ROW (Acres): 0,21 0.06 Land Use Zoning From : RL R-3 PIN: 10-29-15-85446-001-0120 To: RL LMDR Atlas Page: 269B S:APlanning DepartmentT D B\Annexations\ANX - 2007\ANX2007-03007 - 1624 Stevenson's Drive - Jenkins\Maps\ANX2007-03007 Aerial Map.doc Item # 9 Attachment number 1 Page 3 of 7 694.24 s _ == FAIRMONT ST 65,5, 10 0 11 9 o 8 N f':::: :: 3 2 so 1625 " k. . •= .: . 120 e ::. , . : . : r.. 9 8 7 ' LAR 6 '- 10 ??7 ;? ]13 13 1619 '" :'• ::':- • r2- 22 . . _ ' `: 1;123;;' .' 15 o PARKW E?'..ST tisp? .5 .." 14 1618 ; C 1616 f:`•' 6 :-.: . ['i::'• 14 161 s7 1yp1 8 .?? 1612 7 °' . ... 9 1613 .'.x;;: r:. 7 6 c ? . . ;:;::.•?. •..:': 1 `:',?` ". - s:i4':?'i' `- 1601 . o -.. ,mod •..:?"•??-?•::: -..-? _::r?7:.:. i- '• 6'.= 2 'it -- " 12 10 11 12 13 :..-. . . : . ?.: 31 0 1604 M 0 ?, ::..?. N /?. ' : a•>..... ,; 9 11 0? WOODBINE ST 19 yg1 Q ; w. 1 1? 9 0 o 20 :.:•. :. J ' ?" ii ,2j:..;: .• 21 1y2Q [: 1501 LLJ 10 11 12 13 Proposed Annexation Map Owner: Arentha L. Jenkins Case: ANX2007-03007 Property Size (Acres): 0 21 Site: 1624 Stevenson's Drive ROW (Acres): , 0.06 Land Use Zoning PIN: 10-29-15-85446-001-0120 From : RL R-3 To: RL LMDR Atlas Page: 269B S:APlanning DepartmentT D B\Annexations\ANX - 2007\ANX2007-03007 - 1624 Stevenson's Drive - Jenkins\Maps\ANX2007-03007 Proposed Annexation.doc Item # 9 Attachment number 1 Page 4 of 7 o RU ^? K O o ! P O :: :. •; : .::;:: .: TERRACE RD o o WATE R Of I CG FAIRMONT ST RL \\\ o N (p { -?•A •.• ' ..?:•. N co ?.-:o• 1625 17nn 1 REP- V. P • :: .°. 1240 ? : 1Z3? :..:..?... ...... 18i?'O" o M 1619 M z'aa. PARKW06 &` S. 51 1616 1 ATE • SM. .. ..'': [':?i ??:?:?;: 161 Q ''?2?> 1612 i."? _ - - --?:'?.?, N ?`'o :-.•:•': ?`. .::'•' ,•'.16 A 161 :'' .:.,•.,' .- - -- `••'.•.`•.?.'?'?' 1613 ?'•'- :•':? RU - .•:•'??'- ZN - •::?. •: ?•` -•.'?•r.. 1604 1601 0 0 . T/U WOODBINE ST 1528 152 ???`••...: r,.i[?i.:.;: •'• Z ..:4 5? ' ' 1 _ ' ': ''':•< g5n5 • . ;-; ;.; LLJ 1501 R/OS , 520 Future Land Use Map Owner: Arentha L. Jenkins Case: ANX2007-03007 Property Size (Acres): 0 21 Site: 1624 Stevenson's Drive ROW (Acres): . 0.06 Land Use Zoning PIN: 10-29-15-85446-001-0120 From : RL R-3 To: RL LMDR Atlas Page: 269B S:APlanning DepartmentT D B\Annexations\ANX - 2007\ANX2007-03007 - 1624 Stevenson's Drive - Jenkins\Maps\ANX2007-03007 Future Land Use Map.doc Item # 9 Attachment number 1 Page 5 of 7 TERRACE RD L o o F C 1707 1703 °0 M 0 M 0 M FAIRMONT ST o .. --.. •-'. .,-.. ?'-: .?•:--•?? 1625 17nn LAIRE. .0 . R :'::'::..':.,.: ::.:•?ra? :.::::: ..:.::1st,. 01 1619 `-- • ? - 1235 ., .: • . , t? ?z3a .7; 7 1616 PARKWO D. OS/R Zoning Map Owner: Arentha L. Jenkins Case: ANX2007-03007 Property Size (Acres): 0 21 Site: 1624 Stevenson's Drive ROW (Acres): . 0.06 Land Use Zoning PIN: 10-29-15-85446-001-0120 From : RL R-3 To: RL LMDR Atlas Page: 269B S:APlanning DepartmentT D B\Annexations\ANX - 2007\ANX2007-03007 - 1624 Stevenson's Drive - Jenkins\Maps\ANX2007-03007 Zoning Map.doc Item # 9 Attachment number 1 Page 6 of 7 ' ? ° : •: '`':: •: ::: 'G : •r - . , 88 ° ?::;?ii;': +? '::iii ,. :. : i: :: ?? 1 2 9- - 8542$ - 10 - Vacant - a°a e?, • :._: ::.;::rs9 : . TERRACE RD 11 - - . 12 12 17 16 15 13 - Fire Station . •• 1707 17 3 2 3 4 14 - _ e° .:.': 0 0 er co 0 - - - 0 15 30 -106 265,5, 694.24 _ FAIRMONT ST tevens 11 0 YS 10 c 9 8 f i::: 'An •- 3 N 2 0 0., '. so 1625 120 4? = : . :• ' S 6 rg e' k and c? rr r :: : ; : ::.:: ;:= :: Strgl? Farritf .: :. ;zd1x : ...56 r» Y Reel rese ation :.. a N . : 1239 1Cz?U,: 11 . 17. 13 .i: ..: •. 4..:; . ;:.:•:;::: '•:--: -. ....•:::::•:' !:;:?;. '::: :::.;•'. :;:?;:;:. 1619 .? :.. ''r23?; ... : ; .1 •.. ': 15 o PA RKW 60 ST 14 61Q :,?¢'?'?? • C 1 • ' 1616 • .. ? /?? 6 8 / b1? 'f 1 :':15: Y . - - .<:-._ [ 3iS:'• 14 1612 161 o.` '•'m: c 1 ? 9 ::r: ' 7 6 16''- (P c 1 1613 , • :: Aral, 01 • 12 :.' ` 2 1 10 11 12 13 . .:: '.: : • : ;• g1 00 1604 M N 1.. V a WOODBINE ST 7 WPC Lift 2 ..._-:...-.. 20 ,328 1y :. Station 1 .:,:......, 21 1: .• .'• :1_ • ;:p•..' .1'• 1501 ,320 ...... '':i''' ..Ac.:::• 5 22 1 .:.:' m 10 011 120 M 13 .. Existing Surrounding Uses Map Owner: Arentha L. Jenkins Case: ANX2007-03007 Property Size (Acres): 0 21 Site: 1624 Stevenson's Drive ROW (Acres): . 0.06 Land Use Zoning PIN: 10-29-15-85446-001-0120 From : RL R-3 To: RL LMDR Atlas Page: 269B S:APlanning DepartmentT D B\Annexations\ANX - 2007\ANX2007-03007 - 1624 Stevenson's Drive - Jenkins\Maps\ANX2007-03007 Existing Surrounding Uses Map.doc Item # 9 t t View looking west at the subject property, 1624 Stevenson's Drive View looking south of the subject property. a? -IJ rrtVYi 1 ?P?vfL Ihl?^? ,?rµ'd i Attachment number 1 Page 7 of 7 r 0 I _ W, OVA ? 1 _ .. .. u5uma6..... ASliilllfoiNl?UK (p,. YhGy1v?1 ?iavri?men¢sxmwlUln143t&?H View looking north of the subject property. ,I Wti 4\' Mid u t ti t? Ip 'hy4 ??'d'r? p . ?,? f I t tw. a,?: 5H1?12 F.. I ? (fr t View looking across the street, east of the subject property. View looking south along Stevenson's Drive. ANX2007-03007 Jenkins, Arentha L. 1624 Stevenson's Drive Item # 9 View looking north along Stevenson's Drive. Attachment number 2 Page 1 of 1 ORDINANCE NO. 8135-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, ANNEXING CERTAIN REAL PROPERTY LOCATED ON THE WEST SIDE OF STEVENSON'S DRIVE APPROXIMATELY 20 FEET SOUTH OF CLAIRE DRIVE, CONSISTING OF LOT 12, BLOCK A, STEVENSON'S HEIGHTS, WHOSE POST OFFICE ADDRESS IS 1624 STEVENSON'S DRIVE, TOGETHER WITH THE ABUTTING RIGHT-OF-WAY, INTO THE CORPORATE LIMITS OF THE CITY, AND REDEFINING THE BOUNDARY LINES OF THE CITY TO INCLUDE SAID ADDITION; PROVIDING AN EFFECTIVE DATE. WHEREAS, the owner of the real property described herein and depicted on the map attached hereto as Exhibit A has petitioned the City of Clearwater to annex the property into the City pursuant to Section 171.044, Florida Statutes, and the City has complied with all applicable requirements of Florida law in connection with this ordinance; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. The following-described property is hereby annexed into the City of Clearwater and the boundary lines of the City are redefined accordingly: Lot 12, Block A, Stevenson's Heights, according to plat thereof recorded in Plat Book 34, Page 13, Public Records of Pinellas County, Florida, together with the abutting right-of-way. (ANX2007-03007) Section 2. The provisions of this ordinance are found and determined to be consistent with the City of Clearwater Comprehensive Plan. The City Council hereby accepts the dedication of all easements, parks, rights-of-way and other dedications to the public, which have heretofore been made by plat, deed or user within the annexed property. The City Engineer, the City Clerk and the Planning Director are directed to include and show the property described herein upon the official maps and records of the City. Section 3. This ordinance shall take effect immediately upon adoption. The City Clerk shall file certified copies of this ordinance, including the map attached hereto, with the Clerk of the Circuit Court and with the County Administrator of Pinellas County, Florida, within 7 days after adoption, and shall file a certified copy with the Florida Department of State within 30 days after 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 Item # 9 Ordinance No. 8135-10 Attachment number 3 Page 1 of 1 ORDINANCE NO. 8136-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, AMENDING THE FUTURE LAND USE PLAN ELEMENT OF THE COMPREHENSIVE PLAN OF THE CITY, TO DESIGNATE THE LAND USE FOR CERTAIN REAL PROPERTY LOCATED ON THE WEST SIDE OF STEVENSON'S DRIVE APPROXIMATELY 20 FEET SOUTH OF CLAIRE DRIVE, CONSISTING OF LOT 12, BLOCK A, STEVENSON'S HEIGHTS, WHOSE POST OFFICE ADDRESS IS 1624 STEVENSON'S DRIVE, TOGETHER WITH THE ABUTTING RIGHT-OF-WAY, UPON ANNEXATION INTO THE CITY OF CLEARWATER, AS RESIDENTIAL LOW (RL); PROVIDING AN EFFECTIVE DATE. WHEREAS, the amendment to the future land use plan element of the comprehensive plan of the City as set forth in this ordinance is found to be reasonable, proper and appropriate, and is consistent with the City's comprehensive plan; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. The future land use plan element of the comprehensive plan of the City of Clearwater is amended by designating the land use category for the hereinafter described property, upon annexation into the City of Clearwater, as follows: Property Land Use Category Lot 12, Block A, Stevenson's Heights, according to Residential Low (RL) plat thereof recorded in Plat Book 34, Page 13, Public Records of Pinellas County, Florida, together with the abutting right-of-way. (ANX2007-03007) Section 2. The City Council does hereby certify that this ordinance is consistent with the City's comprehensive plan. Section 3. This ordinance shall take effect immediately upon adoption, contingent upon and subject to the adoption of Ordinance No. 8135 -10. PASSED ON FIRST READING PASSED ON SECOND AND FINAL READING AND ADOPTED Approved as to form: Leslie K. Dougall-Sides Assistant City Attorney Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk Item # 9 Ordinance No. 8136-10 Attachment number 4 Page 1 of 1 ORDINANCE NO. 8137-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, AMENDING THE ZONING ATLAS OF THE CITY BY ZONING CERTAIN REAL PROPERTY LOCATED ON THE WEST SIDE OF STEVENSON'S DRIVE APPROXIMATELY 20 FEET SOUTH OF CLAIRE DRIVE, CONSISTING OF LOT 12, BLOCK A, STEVENSON'S HEIGHTS, WHOSE POST OFFICE ADDRESS IS 1624 STEVENSON'S DRIVE, TOGETHER WITH THE ABUTTING RIGHT-OF-WAY, UPON ANNEXATION INTO THE CITY OF CLEARWATER, AS LOW MEDIUM DENSITY RESIDENTIAL (LMDR); PROVIDING AN EFFECTIVE DATE. WHEREAS, the assignment of a zoning district classification as set forth in this ordinance is found to be reasonable, proper and appropriate, and is consistent with the City's comprehensive plan; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. The following described property located in Pinellas County, Florida, is hereby zoned as indicated upon annexation into the City of Clearwater, and the zoning atlas of the City is amended, as follows: Property Zoning District Lot 12, Block A, Stevenson's Heights, according to Low Medium Density Residential plat thereof recorded in Plat Book 34, Page 13, Public (LMDR) Records of Pinellas County, FL, together with the abutting right-of-way. (ANX2007-03007) Section 2. The City Engineer is directed to revise the zoning atlas of the City in accordance with the foregoing amendment. Section 3. This ordinance shall take effect immediately upon adoption, contingent upon and subject to the adoption of Ordinance No. 8135-10. PASSED ON FIRST READING PASSED ON SECOND AND FINAL READING AND ADOPTED Approved as to form: Leslie K. Dougall-Sides Assistant City Attorney Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk Item # 9 Ordinance No. 8137-10 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Approve the Annexation, Initial Land Use Plan Designation of Residential Urban (RU) and Initial Zoning Atlas Designation of Low Medium Density Residential (LMDR) District for 2170 Catalina Drive South (Lot 42, Sunset Gardens in Section 24, Township 29 South, Range 15 East); and Pass Ordinances 8138-10, 8139-10 and 8140-10 on first reading. (ANX2009-11015) SUMMARY: This voluntary annexation involves a 0.143-acre property consisting of one parcel of land occupied by a single-family dwelling. It is located on the north side of Catalina Drive South, approximately 250 feet west of Belcher Road. The applicant is requesting this annexation in order to receive solid waste service from the City. The property is located within an enclave and is contiguous to existing City boundaries to the south. It is proposed that the property be assigned a Future Land Use Plan designation of Residential Urban (RU) and a zoning category of Low Medium Density Residential (LMDR). The Planning Department determined that the proposed annexation is consistent with the provisions of Community Development Code Section 4-604.E as follows: The property currently receives water service from Pinellas County and sanitary sewer service from the City. Collection of solid waste will be provided by the City of Clearwater. The property is located within Police District III and service will be administered through the district headquarters located at 2851 N. McMullen Booth Road. Fire and emergency medical services will be provided to this property by Station 47 located at 1460 Lakeview Road. The City has adequate capacity to serve this property with solid waste, police, fire and EMS service. The proposed annexation will not have an adverse effect on public facilities and their levels of service; and • The proposed annexation is consistent with and promotes the following objective of the Clearwater Comprehensive Plan: Objective A.6.4: Due to the built-out character of the City of Clearwater, compact urban development within the urban service area shall be promoted through application of the Clearwater Community Development Code. Objective A.7.2 Diversify and expand the City's tax base through the annexation of a variety of land uses located within the Clearwater Planning Area. Policy A.7.2.3 Continue to process voluntary annexations for single-family residential properties upon request. The proposed RU Future Land Use Plan category is consistent with the current Countywide Plan designation of this property. This designation primarily permits residential uses at a density of 7.5 units per acre. The proposed zoning district to be assigned to the property is the Low Medium Density Residential (LMDR) District. The use of the subject property is consistent with the uses allowed in the District and the property exceeds the District's minimum dimensional requirements. The proposed annexation is therefore consistent with the Countywide Plan, City's Comprehensive Plan and Community Development Code; and The property proposed for annexation is contiguous to existing City boundaries to the south; therefore the annexation is consistent with Florida Statutes Chapter 171.044. 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 Item # 10 Attachment number 1 Page 1 of 7 1AGN©L!A DR U m Z > DR E w = RIPON DR z 0 o 0 ST ? ,au Pd I C DR ?? REBECCA Rm •: DR 54NDRA ••? _ LEES CT r D? GNIVE R,& DR C? UNIVERSITY } DR S ?•... .•.:... a ?. GR©VEL OOD Uj RD tY Z m?u u _ MINNEOLA RD s A I GLEPMOOR OOR C ENMOOR RD S CiENMOOR l LOCATION MAP Owner: Patrick & Debra K. Murray Case: ANX2009-1 1 01 5 Site: 2170 Catalina Drive South Property 0.143 Size Acres : Land Use Zoning PIN: 24-29-15-87696-000-0420 From : RU R-3 To: RU LMDR Atlas Page: 316B S:APlanning Department\C D B\Annexations\ANX - 2009\ANX2009-11015 - 2170 Catalina Drive - Murray\Maps\ANX2009-1 1 0 1 5 LOCATION MAP.doc Item # 10 Attachment number 1 Page 2 of 7 ? Y} ? l fi '' 't` ' Pyy 1??? . i . ?% s I Ii { r ? S+ A ??, ? F 3 s]&V-? k 1 ? i' r flf J. 4 vp R .... q11 l > lr ?,v. W :?a r _ 4!%i P? s. k -• 7 y Vf"i ?u ? ? Jy } ti ? ?r v ?. 4 ? -. F -u. r1 7 ?? V ? I ? ..._.F ?r, {?A. rd', ? 1 eP ? ? ? ?' ? t t `? I J ?? r.. ., ? 1j ' T?Ya.4 ?, , ? . .a??. ?s-:.. ba d{ & i i??, {J `? P P• I 1 r; OKY _? ??q9'' 4 ?t? - • 1S?r Jr,'t, F o---w, ri.? r fit," '4 ti' l ? yi„ _, r e „? ; r V, ?i Hkz (? r t' - l _ V'Q,i1 Y lkf } ` 7.X C y?1?E IL ?t???',._ xt R 1\ .^ V' ? ?? ? c $. 1 Wk, +:,r 1 rU W , - - 7 A vtt 1 ?, ?v a ?, ')k F•.1,? {?-4 ?' 1-, ] ] 1? x I. W {_ E A ? ? !jl ??"? iti ? ?{12,(MY Q`VU E F _ if E i All u V r s t r,l, ti 1 ,? N 41 imll It i e i ' ,? rt"? "?? c ? ditsrn? ??.? ? ?? °?a• 6 N?txP? ">? rte' T" r p 7 f o e 4 V S H s 4 AERIAL PHOTOGRAPH Owner: Patrick & Debra K. Murray Case: ANX2009-1 1 01 5 Site: 2170 Catalina Drive South Property 0.143 Size Acres : Land Use Zoning PIN: 24-29-15-87696-000-0420 From : RU R-3 To: RU LMDR Atlas Page: 316B S:APlanning Department\C D B\Annexations\ANX - 2009\ANX2009-11015 - 2170 Catalina Drive - Murray\Maps\ANX2009-1 1 0 1 5 AERIAL PHOTOGRAPH.doc Item # 10 Attachment number 1 Page 3 of 7 150 PROPOSED ANNEXATION MAP Owner: Patrick & Debra K. Murray Case: ANX2009-1 1 01 5 Site: 2170 Catalina Drive South Property 0.143 Size Acres : Land Use Zoning PIN: 24-29-15-87696-000-0420 From : RU R-3 To: RU LMDR Atlas Page: 316B S:APlanning Department\C D B\Annexations\ANX - 2009\ANX2009-11015 - 2170 Catalina Drive - Murray\Maps\ANX2009-1 1 0 1 5 PROPOSED ANNEXATION MAP.doc Item # 10 Attachment number 1 Page 4 of 7 ? m :;.; -: ?•: i}:?`.•;:'??......' - ?•i):•:: ::.:'. .•.-. 1417 "R[ - ' ;.?;. _.,.: -. N,. - ._. ..a; :?'-?'•.N N N -- -- _.? : .?.: ::'.'.f ::. - .. •:. M - .. ;..S:C i WF, f: •:•.pi'•'. - - .q':'...... 14 ? • ? ' ' ? • ? • • f u ? ?,.L? 1419 '. iw ?•.rv I ' ?: : ?:??' "; : .n} i r'.;:• ?.'. i ' N ::.; :-, _ ; .. <v .' i=' ?:'.[. • r N.:: ?- ..'. i i i'??: e" :.':; ;. ?:'. _•; ? ?'. i [ i ::? :: ?: C ? ? ?".? ? ::•': i .:'• I ? i r :?'.:[ 'No-4 ::' ?.: ? :? :: ?.? ': i".:'• I i::? ?. [[: '; •:.; : • ': ? ?::•'; :".:'• j • ; _?'.:: [:; .? ?'. . :; ::''; :". ?' 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NURSERY RD •:' -Mufti!-kamily N 150 N 180(5) 2o?s Bank "Resideftial as Station 141' 8 - 141 O' 1439 1 4 1441 1443 1445 1447 1449 1451 1453 ? 1455 1463 r? 1465 1467 1469 N 1471 1475 1477 9? 1481 Gas Station 1 1499 EXISTING SURROUNDING USES MAP Owner: Patrick & Debra K. Murray Case: ANX2009-1 1 01 5 Site: 2170 Catalina Drive South Property 0.143 Size Acres : Land Use Zoning From : RU To: RU PIN: R-3 LMDR Atlas Page: 24-29-15-87696-000-0420 316B S:APlanning Department\C D B\Annexations\ANX - 2009\ANX2009-11015 - 2170 Catalina Drive - Murray\Maps\ANX2009-1 1 0 1 5 EXISTING SURROUNDING USES MAP.doc Item # 10 View looking north at the subject property, 2170 Catalina Drive South West of the subject property r t I i _ L ^;srV 9 A4 -4. East of the subject property Milli" Across street, to south of the subject property View looking easterly along Catalina Drive South View looking westerly along Catalina Drive South ANX2009-11015 Murray, Patrick & Debra K. Item # 10 2170 Catalina Drive South ? i Attachment number 1 ParlP ? of ? Attachment number 2 Page 1 of 1 ORDINANCE NO. 8138-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, ANNEXING CERTAIN REAL PROPERTY LOCATED ON THE NORTH SIDE OF CATALINA DRIVE SOUTH APPROXIMATELY 250 FEET WEST OF BELCHER ROAD, CONSISTING OF LOT 42, SUNSET GARDENS, WHOSE POST OFFICE ADDRESS IS 2170 CATALINA DRIVE SOUTH, INTO THE CORPORATE LIMITS OF THE CITY, AND REDEFINING THE BOUNDARY LINES OF THE CITY TO INCLUDE SAID ADDITION; PROVIDING AN EFFECTIVE DATE. WHEREAS, the owner of the real property described herein and depicted on the map attached hereto as Exhibit A has petitioned the City of Clearwater to annex the property into the City pursuant to Section 171.044, Florida Statutes, and the City has complied with all applicable requirements of Florida law in connection with this ordinance; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. The following-described property is hereby annexed into the City of Clearwater and the boundary lines of the City are redefined accordingly: Lot 42, Sunset Gardens, according to the plat thereof as recorded in Plat Book 41, Page 6, Public Records of Pinellas County, FL (ANX2009-11015) Section 2. The provisions of this ordinance are found and determined to be consistent with the City of Clearwater Comprehensive Plan. The City Council hereby accepts the dedication of all easements, parks, rights-of-way and other dedications to the public, which have heretofore been made by plat, deed or user within the annexed property. The City Engineer, the City Clerk and the Planning Director are directed to include and show the property described herein upon the official maps and records of the City. Section 3. This ordinance shall take effect immediately upon adoption. The City Clerk shall file certified copies of this ordinance, including the map attached hereto, with the Clerk of the Circuit Court and with the County Administrator of Pinellas County, Florida, within 7 days after adoption, and shall file a certified copy with the Florida Department of State within 30 days after adoption. PASSED ON FIRST READING PASSED ON SECOND AND FINAL READING AND ADOPTED Frank V. Hibbard Mayor Approved as to form: Leslie K. Dougall-Sides Assistant City Attorney Attest: Cynthia E. Goudeau City Clerk Item # 10 Ordinance No. 8138-10 Attachment number 3 Page 1 of 1 ORDINANCE NO. 8139-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, AMENDING THE FUTURE LAND USE PLAN ELEMENT OF THE COMPREHENSIVE PLAN OF THE CITY, TO DESIGNATE THE LAND USE FOR CERTAIN REAL PROPERTY LOCATED ON THE NORTH SIDE OF CATALINA DRIVE SOUTH APPROXIMATELY 250 FEET WEST OF BELCHER ROAD, CONSISTING OF LOT 42, SUNSET GARDENS, WHOSE POST OFFICE ADDRESS IS 2170 CATALINA DRIVE SOUTH, UPON ANNEXATION INTO THE CITY OF CLEARWATER, AS RESIDENTIAL URBAN (RU); PROVIDING AN EFFECTIVE DATE. WHEREAS, the amendment to the future land use plan element of the comprehensive plan of the City as set forth in this ordinance is found to be reasonable, proper and appropriate, and is consistent with the City's comprehensive plan; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. The future land use plan element of the comprehensive plan of the City of Clearwater is amended by designating the land use category for the hereinafter described property, upon annexation into the City of Clearwater, as follows: Property Land Use Category Lot 42, Sunset Gardens, according to the plat thereof as Residential Urban (RU) recorded in Plat Book 41, Page 6, Public Records of Pinellas County, FL (ANX2009-1 1 01 5) Section 2. The City Council does hereby certify that this ordinance is consistent with the City's comprehensive plan. Section 3. This ordinance shall take effect immediately upon adoption, contingent upon and subject to the adoption of Ordinance No. 8138-10. PASSED ON FIRST READING PASSED ON SECOND AND FINAL READING AND ADOPTED Approved as to form: Leslie K. Dougall-Sides Assistant City Attorney Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk Item # 10 Ordinance No. 8139-10 Attachment number 4 Page 1 of 1 ORDINANCE NO. 8140-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, AMENDING THE ZONING ATLAS OF THE CITY BY ZONING CERTAIN REAL PROPERTY LOCATED ON THE NORTH SIDE OF CATALINA DRIVE SOUTH APPROXIMATELY 250 FEET WEST OF BELCHER ROAD, CONSISTING OF LOT 42, SUNSET GARDENS, WHOSE POST OFFICE ADDRESS IS 2170 CATALINA DRIVE SOUTH, UPON ANNEXATION INTO THE CITY OF CLEARWATER, AS LOW MEDIUM DENSITY RESIDENTIAL (LMDR); PROVIDING AN EFFECTIVE DATE. WHEREAS, the assignment of a zoning district classification as set forth in this ordinance is found to be reasonable, proper and appropriate, and is consistent with the City's comprehensive plan; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. The following described property located in Pinellas County, Florida, is hereby zoned as indicated upon annexation into the City of Clearwater, and the zoning atlas of the City is amended, as follows: Property Zoning District Lot 42, Sunset Gardens, according to the plat Low Medium Density Residential thereof as recorded in Plat Book 41, Page 6, (LMDR) Public Records of Pinellas County, FL (ANX2009-11015) Section 2. The City Engineer is directed to revise the zoning atlas of the City in accordance with the foregoing amendment. Section 3. This ordinance shall take effect immediately upon adoption, contingent upon and subject to the adoption of Ordinance No. 8138-10. PASSED ON FIRST READING PASSED ON SECOND AND FINAL READING AND ADOPTED Approved as to form: Leslie K. Dougall-Sides Assistant City Attorney Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk Item # 10 Ordinance No. 8140-10 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Approve 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, adopt Resolution 10-01, and authorize the appropriate officials to execute the Development Agreement and associated documents. 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 300 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 49 parking spaces on the second floor) and a Parking Unit (300 parking spaces); • Includes the formation of a three-unit condominium for the project (one unit for the retail portion, the 49 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 September 30, 2010. 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) Office of Management and Budget 2) Legal 3) Clerk 4) Assistant City Manager 5) Clerk 6) City Manager 7) Clerk Cover Memo Item # 11 Attachment number 1 Page 1 of 1 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 Approved as to form: Pamela K. Akin City Attorney day of , 2010. Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk Resolution Nterro-*111 Attachment number 2 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 North: Tourist (T) District SURROUNDING Mixed Use (overnight accommodations and attached ZONING AND USES: dwellings) and Parking Garage South: Tourist (T) District Overnight accommodations East: Tourist (T) District Overnight accommodations and Retail sales and services West: Open Space/Recreation (OS/R) District Clearwater Beach Community Development Board - January 5, 2010 DVA2009-00004 - Page 1 of 4 Item # 11 Attachment number 2 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); Community Development Board - January 5, 2010 DVA2009-00004 - Page 2 of 4 Item # 11 Attachment number 2 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 cafe seating within the S. Gulfview Boulevard right-of-way. The Community Development Board (CDB) has been provided with the most recent Development Agreement. The City Council may enter into Development Agreements to encourage a stronger commitment on comprehensive and capital facilities planning, to ensure the provision of adequate public facilities for development, to encourage the efficient use of resources, and to reduce the economic cost of development. The CDB is required to review the proposed Development Agreement and make a recommendation to the City Council. SUMMARY AND RECOMMENDATION: The Development Review Committee (DRC) reviewed the application and supporting materials at its meetings of October 1 and November 5, 2009, and deemed the development proposal to be legally sufficient to move forward to the CDB, based upon the following: Findings of Fact: The Planning and Development Department, having reviewed all evidence submitted by the applicant and requirements of the Community Development Code, finds that there is substantial competent evidence to support the following findings of fact: 1. That the 0.99 acres is located between S. Gulfview Boulevard and Coronado Drive approximately 200 feet south of Third Street; 2. That the property is located within the Tourist (T) District and the Resort Facilities High (RFH) Future Land Use Plan category; 3. That the development proposal is subject to the requirements of Beach by Design and the Design Guidelines contained therein as the property is located within the Beach Walk character district. Conclusions of Law: The Planning and Development Department, having made the above findings of fact, reaches the following conclusions of law: Community Development Board - January 5, 2010 DVA2009-00004 - Page 3 of 4 Item # 11 Attachment number 2 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 DepartmentlC D BIFLEX (FLD)IPending eases) Up for the next CDBOVA2009-00004 - Gulfview S 0311 (T) 2009.xx -1.510 CDB + 1.14.10 CC - WWI Gulfview S 0311 DVA Staff Report for 1.5.10 CDB. doe Community Development Board - January 5, 2010 DVA2009-00004 - Page 4 of 4 Item # 11 Attachment number 3 Page 1 of 42 This instrument prepared by, or under the supervision of (and after recording, return to): Nancy Lash, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 for Clerk 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 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 2 of 42 Table Of Contents Article 1. DEFINITIONS ................................................................................................2 1.01 Definitions ..........................................................................................................2 1.02 Use of Words and Phrases ................................................................................5 1.03 Florida Statutes ................................................................................................5 Article 2. PURPOSE AND DESCRIPTION OF PROJECT ............................................5 2.01 Finding of Public Purpose and Benefit ...............................................................5 2.02 Purpose of Agreement .......................................................................................5 2.03 Scope of the Project ..........................................................................................5 2.04 Cooperation of the Parties .................................................................................7 Article 3. REGULATORY PROCESS ............................................................................8 3.01 Land Development Regulations .........................................................................8 3.02 Development Approvals and Permits ................................................................8 3.03 Concurrency ......................................................................................................9 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 ...........................................................................11 Article 6. PROJECT FINANCING ...............................................................................11 6.01 Financing .........................................................................................................11 6.02 Notice of Project Financing to City ...................................................................12 6.03 Copy of Default Notice to City ..........................................................................12 Article 7. INDEMNIFICATION .....................................................................................14 7.01 Indemnification by the Developer ....................................................................14 7.02 Indemnification by the City ..............................................................................15 7.03 Limitation of Indemnification ............................................................................15 Article 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER ...............................................................................................16 8.01 Representations and Warranties .....................................................................16 8.02 Covenants .......................................................................................................17 Article 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY .............................................................................................................18 9.01 Representations and Warranties .....................................................................18 (i) Item # 11 01 MIA 180,692,234 Attachment number 3 Page 3 of 42 9.02 Covenants .......................................................................................................19 Article 10. CONDITIONS PRECEDENT .......................................................................20 10.01 Construction of Project ....................................................................................20 10.02 Responsibilities of the Parties for Conditions Precedent .................................20 Article 11. DEFAULT; TERMINATION ..........................................................................21 11.01 Project Default by the Developer .....................................................................21 11.02 Default by the City ...........................................................................................22 11.03 Obligations, Rights and Remedies Cumulative ................................................23 11.04 Non-Action on Failure to Observe Provisions of this Agreement ..................... 23 11.05 Termination ......................................................................................................23 11.06 Termination Certificate ....................................................................................25 Article 12. ARBITRATION ............................................................................................25 12.01 Agreement to Arbitrate .................................................................................... 25 12.02 Appointment of Arbitrators ............................................................................... 25 12.03 General Procedures ........................................................................................ 26 12.04 Majority Rule .................................................................................................... 27 12.05 Replacement of Arbitrator ................................................................................ 27 12.06 Decision of Arbitrators ..................................................................................... 27 12.07 Expense of Arbitration ..................................................................................... 27 12.08 Accelerated Arbitration .................................................................................... 28 12.09 Applicable Law ................................................................................................ 28 12.10 Arbitration Proceedings and Records .............................................................. 28 Article 13. UNAVOIDABLE DELAY ...............................................................................29 13.01 Unavoidable Delay ..........................................................................................29 Article 14. FIRE OR OTHER CASUALTY; CONDEMNATION ......................................30 14.01 Loss or Damage to Project ..............................................................................30 14.02 Partial Loss or Damage to Project ...................................................................30 14.03 Project Insurance Proceeds ............................................................................31 14.04 Notice of Loss or Damage to Project ...............................................................31 14.05 Condemnation of Project or Property; Application of Proceeds ....................... 31 Article 15. MISCELLANEOUS ......................................................................................32 15.01 Assignments ....................................................................................................32 15.02 Successors and Assigns .................................................................................33 15.03 Notices ............................................................................................................33 15.04 Applicable Law and Construction ....................................................................33 15.05 Venue; Submission to Jurisdiction ...................................................................34 15.06 Estoppel Certificates ........................................................................................34 15.07 Complete Agreement; Amendments ................................................................34 15.08 Captions ..........................................................................................................35 15.09 Holidays ...........................................................................................................35 (ii) Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 4 of 42 15.10 Exhibits ............................................................................................................ 35 15.11 No Brokers ....................................................................................................... 35 15.12 Not an Agent of City ........................................................................................ 35 15.13 Memorandum of Development Agreement ...................................................... 35 15.14 Public Purpose ................................................................................................ 35 15.15 No General Obligation ..................................................................................... 36 15.16 Other Requirements of State Law ................................................................... 36 15.17 Technical Amendments ................................................................................... 36 15.18 Term; Expiration; Certificate ............................................................................ 36 15.19 Approvals Not Unreasonably Withheld ............................................................ 37 15.20 Waiver of Jury Trial .......................................................................................... 37 15.21 Effective Date .................................................................................................. 37 EXHIBITS Legal Description of Property .......................................................................................... A Conceptual Plans for Project .......................................................................................... B Right-of-Way Area to be Vacated ................................................................................... C Form of Condominium Documents ................................................................................. D Public Parking Covenant ................................................................................................. E Intentionally Omitted ....................................................................................................... F Sidewalk and Turn-Lane Easement ................................................................................G List of Required Permits and Approvals .......................................................................... H Project Development Schedule .........................................................................................I City Parking Garage Standards .......................................................................................J Parking Structure Maintenance Standards ..................................................................... K "PUT" Agreement Form ...................................................................................................L lm) Item # 11 01 MIA 180,69Z 234 Attachment number 3 Page 5 of 42 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 and L.O.M., Inc., a Florida corporation (the "Developer"). WITNESSETH: WHEREAS, the City of Clearwater has embarked on a community revitalization effort for Clearwater Beach; WHEREAS, one of the major elements of the City's revitalization effort is a preliminary design for the revitalization of Clearwater Beach entitled Beach by Design; WHEREAS, Beach by Design identifies a need for additional public parking on Clearwater Beach; WHEREAS, Beach by Design calls for the construction of Beach Walk and the removal and replacement of surface parking spaces located to the west of South Gulfview Boulevard to the south of Pier 60 Park; WHEREAS, the City has adopted Beach by Design pursuant to the Pinellas Planning Council's Rules in support of the City's Comprehensive Plan; WHEREAS, the City desires to encourage and provide for the construction of 300 public parking spaces; WHEREAS, the Developer proposes to develop a multi-use project on certain real property located on South Gulfview Boulevard and legally described in Exhibit A attached hereto (the "Pro a "), and has proposed to include approximately three hundred and forty nine (349) parking spaces in the project, of which three hundred (300) spaces shall be open to the public; WHEREAS, it is necessary that the City take certain actions in order to make it possible for the Developer to develop the Property in accordance with the goals and objectives of Beach by Design; WHEREAS, the City has conducted such hearings as are required by and in accordance with Chapter 163.3220 F. S. and applicable law; WHEREAS, the City has determined that as of the Effective Date of this Agreement, the proposed development is consistent with the City's Comprehensive Plan and Land Development Regulations; 1 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 6 of 42 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 by corporate resolution certain individuals to execute this Agreement on its behalf. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby agree as follows: ARTICLE 1. DEFINITIONS. 1.01 Definitions. For purposes of this Agreement, the following terms defined in this Article 1 shall have the meanings attributed to them below except as herein otherwise expressly provided: (1) "Agreement" means this Agreement for Development of Property (Surf Style Condominium Project), including any Exhibits and any amendments thereto. (2) "Agreement Expiration Certificate" means the certificate confirming the completion of all obligations under this Agreement and expiration of the term of this Agreement required under Section 15.18, upon the request of either party. (3) "Applicable Laws" means any law, enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction or requirement of any Governmental Authority, political subdivision, or any division or department thereof, now existing or hereafter enacted, adopted, promulgated, entered, or issued. (4) "Beach by Design" or "Plan" means the strategic redevelopment plan for Clearwater Beach dated 2001 which was adopted by the City Council pursuant to the provisions of the Pinellas County Planning Councils Rules for the designation of a Community Redevelopment District, as amended. (5) "Break Wall" shall have the meaning given to it in Section 2.03(4). (6) "Break Wall Easement" means that certain Construction, Access and Maintenance Easement Agreement by and between the City and the Developer dated December 17, 2009 and recorded January 29, 2010 in 2 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 7 of 42 Official Records Book 16817, Page 1071 of the Public Records of Pinellas County, Florida. (7) "Cy" means the City of Clearwater, Florida, a Florida municipal corporation. (8) "City Council" means the governing body of the City. (9) "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. (10) "Commencement Date" means the date on which Developer commences or causes a contractor to commence construction (see Section 5.03(4)), which date shall occur on or before September 30, 2010. (11) "Completion Date" means the date on which a conditional or final certificate of occupancy required for the Project is issued, which date shall be no later than twenty-four (24) months following the Commencement Date. (12) "Conceptual Plans" means the conceptual plans for the Project approved by the parties attached hereto as Exhibit B. (13) "Developer" means, for the purposes of this Agreement, L.O.M., Inc., a Florida corporation and its successors and assigns as provided in Article 15. (14) "Effective Date" means the date of approval and final execution of the Agreement by the parties. (15) "Exhibits" means those agreements, diagrams, drawings, specifications, instruments, forms of instruments, and other documents attached and designated as exhibits to, and incorporated in and made a part of, this Agreement. (16) "Expiration Date" means the date which is five (5) years following the Completion Date. (17) "Flood Zone Change" shall have the meaning given to it in Section 2.03(4). (18) "Governmental Authority" means any federal, state, county, municipal or other governmental entity or any instrumentality of any of them, having jurisdiction over the Project. 3 Item # 11 v11 MIA 180,69Z 234 Attachment number 3 Page 8 of 42 (19) "Land Development Regulations" means the Community Development Code, Comprehensive Plan, Beach by Design and related regulations applicable to the development of the Project in the City of Clearwater. (20) "Parking Unit" shall have the meaning given to it in Section 2.03(1). (21) "Permits" means all land development approvals, permits and consents required to be granted, awarded, issued, or given by any Governmental Authority under any Applicable Laws in order for construction of the Project, or any part thereof, to commence, continue or be completed. The term Permits shall include FEMA's approval of the Flood Zone Change. (22) "Plans and Specifications" means the site plan for the Project to be filed with the City as required by the Land Development Regulations for the purpose of review and approval. (23) "Project" means, generally, the development and construction of a 41,070+/- square foot retail/commercial project with 49 parking spaces, and a commercial parking garage containing 300 parking spaces open to the public, as described in Section 2.03(1) of this Agreement. The Project will consist of the Retail Unit(s) and the Parking Unit, as more particularly described in this Agreement. (24) "Project Financing" shall have the meaning given to it in Section 6.01. (25) "Project Lender" shall have the meaning given to it in Section 6.01. (26) "Property' means that certain property located at 311 S. Gulf View Boulevard and 320 Coronado Drive, Clearwater, FL 33767, which is owned by the Developer or an affiliate or nominee on the Effective Date of this Agreement see Section 5.01), which Property is more particularly described in the legal description attached as Exhibit A to this Agreement. (27) "Put Agreement" shall have the meaning given to it in Section 6.01. (28) "Retail Unit(s)" shall have the meaning given to it in Section 2.03(1). (29) "Termination Date" means the date a termination certificate is issued pursuant to Article 11. (30) "Unavoidable Delay' means a delay as described in Article 13 hereof. (31) "Vacation of Right-of-Way" means the abandonment of the eastern half of the existing right-of-way of South Gulfview Boulevard (approximately 35' in width) adjacent to the Property by the City, in order that the goals and objectives of the Comprehensive Plan may be better accomplished. The 35' right-of-way area proposed to be vacated is graphically depicted in Exhibit C attached hereto. 4 Item # 11 v11 MIA 180,69Z 234 Attachment number 3 Page 9 of 42 1.02 Use of Words and Phrases. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, the singular shall include the plural as well as the singular number, and the word "person" shall include corporations and associations, limited liability corporations and partnerships, including public bodies, as well as natural persons. "Herein," "hereby," "hereunder," "hereof," "herein before," "hereinafter" and other equivalent words refer to this Agreement and not solely to the particular portion thereof in which any such word is used. 1.03 Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (2009), as amended from time to time. ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT. 2.01 Finding of Public Purpose and Benefit. The proposed Project, and the design, construction, completion and operation of the Project, and each part thereof, is hereby found by the City: (1) to be consistent with and in furtherance of the objectives of the Land Development Regulations of the City of Clearwater, (2) to conform to the provisions of Applicable Laws, (3) to be in the best interests of the citizens of the City, (4) to further the purposes and objectives of the City, (5) to further the public interest on Clearwater Beach, and (6) to implement Beach by Design for South Gulfview Boulevard. 2.02 Purpose of Agreement. The purpose of this Agreement is to further the implementation of Beach by Design by providing for the development of the Property and increase the available public parking, all to enhance the quality of life and improve the aesthetic and useful enjoyment of Clearwater Beach and the City, all in accordance with and in furtherance of the Land Development Regulations of the City of Clearwater and as authorized by and in accordance with the provisions of Applicable Laws. 2.03 Scope of the Project. (1) Description of Project. The Project shall include a commercial parking garage, private parking, commercial and retail uses and appropriate accessory uses and shall be developed in substantial conformity with the Conceptual Plans. The Project shall consist of a six-story commercial building on the Property comprised of the following: (a) Retail Unit(s): 41,070+i- square foot retail/commercial unit(s) on the ground floor of the building consisting of approximately 34,183 square feet of retail space and 6,887 square feet of restaurant space, together with a delivery area and approximately 49 parking spaces on the second floor of the building (collectively, the "Retail 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. 5 Item # 11 v11 MIA 180,69Z234 Attachment number 3 Page 10 of 42 (b) Parking Unit: 300 parking spaces located on the 2nd through 6th floors of the building (the "Parking Unit"). (2) Formation of Condominium. The Developer 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 approximately 6,887 square feet of restaurant space and the other of which will include the remainder of the Retail Unit as described above (i.e., approximately 34,183 square feet of retail space, 49 parking spaces and the delivery area). Accordingly, no later than the Completion Date, the Developer shall submit the Property to the condominium form of ownership pursuant Chapter 718 of the Florida Statutes and condominium documents in substantially the form attached hereto as Exhibit D, with a consent or joinder from any then existing Project Lender having any record interest in any mortgage encumbering the interest in the Property as required by Section 718.104(3) of the Florida Statutes. (3) Parking Covenant. No later than the Completion Date, the Developer shall execute, deliver and record a covenant against the Property in the Public Records of Pinellas County, Florida, which covenant shall require that the Project and any future development on the Property include 300 parking spaces available for public parking to the, extent permitted by Applicable Laws, provided that the City (and/or any other applicable Governmental Authority) issues a license or permit (as required by Applicable Law) to the then fee owner of the Property and/or the Parking Unit, as applicable (or its designated parking operator) to operate such parking spaces. The requirement for public parking shall apply to the Project and future developments on the property from the date of the certificate of occupancy for the Project and such future developments (as applicable) for the duration of existence of the improvements covered by such certificate of occupancy. The foregoing parking covenant shall be (i) in substantially the form of the covenant attached to this Agreement as Exhibit E, (ii) recorded prior to the condominium documents under Section 2.03(2) above, (iii) executed by the Developer, and (iv) joined in and consented to by all lien holders and any other person or entity with an interest in the Property superior to and with priority over the Parking Covenant, pursuant to a joinder and consent that makes the Parking Covenant a valid, binding, permanent and superior restrictive covenant against the Property (subject to the terms thereof). The joinder and consent from any then existing Project Lender holding a mortgage against the Property shall be substantially in the form attached to the Parking Covenant as Exhibit E. (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 6 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 11 of 42 requirements in order to accomplish the Flood Zone Change. Specifically, the City will (a) comply with any requirement for the construction and on- going maintenance of a so-called "wave dissipating wall" (the "Break Wall") on the City property lying west of the Property to the east of Gulfview Boulevard along the promenade, (b) as the fee owner of the property upon which the Break Wall will be constructed, submit the letter of map revision to FEMA supporting the Flood Zone Change, (c) advertise the Flood Zone Change as required by Applicable Law, (d) in conjunction with LOM, process the Flood Zone Change in accordance with the requirements set forth by FEMA in its Conditional Letter of Map Revision, and (e) comply with all other obligations of the City under that certain (i) letter agreement dated December 17, 2009 regarding the Break Wall, and (ii) the Break Wall Easement. The Developer will be responsible for and pay all costs associated with the Flood Zone Change, including the cost of construction and on-going maintenance and repair of the Break Wall, unless the cost of maintenance and repair is allocated to the City under the Break Wall Easement. (5) Maintenance Easement: The City has provided the Developer with an easement for construction of, access to and from, and maintenance of, the Break Wall, which easement is appurtenant to the Property, pursuant and subject to the terms and conditions of the Break Wall Easement. (6) Sidewalk and Turn-Lane Easement. No later than the Completion Date, the Developer will provide an easement for a sidewalk and turn-lane encumbering the Property on the east side thereof along Coronado Drive. The foregoing easement shall be (i) in substantially the form of the easement attached to this Agreement as Exhibit G, (ii) in the location indicated in said exhibit, (iii) recorded prior to the condominium documents under Section 2.03(2) above, (iv) executed by the Developer and the City, and (v) joined in and consented to by any then existing Project Lender holding a mortgage against the Property (pursuant to the Joinder of Mortgagee substantially in the form attached to Exhibit G). In the event of a conflict between the terms of this Agreement (on the one hand) and the terms of the Break Wall Easement and other specific instruments attached to this Agreement as Exhibits D, E or G (on the other hand) with respect to the subject matter thereof, the terms of the Break Wall Easement such other instruments, which are more specific and detailed as to the subject matter thereof, shall control. 2.04 Cooperation of the Parties. The City and the Developer recognize that the successful development of the Project and each component thereof is dependent upon the continued cooperation of the City and the Developer, and each agrees that it shall 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 7 Item # 11 01 MIA 180,69Z 234 Attachment number 3 Page 12 of 42 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. (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 8 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 13 of 42 of a similar or comparable nature, size and scope. In no event shall the City, due to any provision of this Agreement, be obligated to take any action concerning regulatory approvals except through its established procedures and in accordance with applicable provisions of law. (5) Impact Fees. The City shall use its best efforts to secure or provide any lawfully available credits against impact fees applicable to the Project which are authorized under existing laws and regulations for public improvements constructed and paid for by the Developer. 3.03 Concurrency. (1) Concurrency Required. The parties hereto recognize and acknowledge that Florida law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code) imposes restrictions on development if adequate public improvements are not available concurrently with that development to absorb and handle the demand on public services caused by development. The City has created and implemented a system for monitoring the effects of development on public services within the City. The Developer recognizes and acknowledges that it may be required to satisfy the concurrency requirements of Florida law and the City's regulations as applied to this Project (if applicable) as part of the regulatory approval process for the Project. (2) Reservation of Capacity. The City hereby agrees and acknowledges that as of the Effective Date of this Agreement, the Project satisfies the concurrency requirements of Applicable Laws. The City agrees to reserve the required capacity in public services to serve the Project for the Developer and to maintain such capacity until January 30, 2014. The City recognizes and acknowledges that the Developer will rely upon such reservation in proceeding with the Project. (3) Required Public Facilities. In addition to the obligations of the City and the Developer set out in Article 5 of this Agreement, the Water Utilities 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. 9 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 14 of 42 (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 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 and such other conditions as City Council reasonably deems appropriate, which conditions shall be expressly set forth in the ordinance vacating the right-of-way. The time period for compliance with such condition in the ordinance shall be not less than twenty-four (24) months, provided that if the Completion Date is extended for any reason (whether by unavoidable delay or otherwise), the outside date for compliance with such condition for purposes of the Vacation of Right-of-Way shall be extended for a commensurate period of time. The City shall execute and deliver any instruments confirming the Vacation of Right-of-Way as may be reasonably required by the Developer. 10 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 15 of 42 (2) Permits. The City will cooperate and coordinate with the Developer with regard to all Permit applications, including without limitation those to federal, state and county agencies, and will facilitate or expedite, to the greatest extent possible, the Permit approval process. (3) Authority for Cafe Seating. The City has adopted a regulation authorizing the use of portions of the west thirty-five (35) feet of the South Gulfview Boulevard right-of-way existing on the Effective Date of this Agreement for outdoor cafe seating and associated activities. 5.03 Obligations of the Developer. (1) The Project. The Developer shall build and operate the Project. (2) Responsibility for On-Site Costs. The Developer shall be responsible for all on-site costs relative to the development of the Project, including the Parking Unit. (3) Parking. The Developer agrees to make three hundred (300) parking spaces within the Project available for public parking, of which not less than two hundred fifty (250) parking spaces will be available on an hourly basis. The Developer may charge the public for use of the parking spaces in the Parking Unit on terms and rates which are market-based and commensurate with terms and rates which are in effect for comparable beachfront, covered parking structures in Florida resort areas. The Developer agrees, during the term of this Agreement, to maintain the Parking Unit in a manner consistent with the City's "Parking Structure Maintenance Standards" attached hereto as Exhibit K. For purposes of clarity, it is acknowledged and agreed that the parking spaces included in the Retail Unit(s) or dedicated to the exclusive use of the Retail Unit(s) are not subject to the requirements and limitations of this Section. (4) Commencement of Construction. The Developer shall commence construction of the Project by September 30, 2010, and shall thereafter diligently pursue completion of the Project. ARTICLE 6. PROJECT FINANCING. 6.01 Financing. The Developer intends to finance the development and construction of the Project through one or more loans (as amended, restated, assigned and renewed from time to time, the "Project Financing") with third-party lender(s) (collectively, the "Project Lender"), secured by, inter alia, the Retail Unit(s) and Parking Unit. The Project Financing shall be contingent upon and the City hereby agrees to enter into a "put" agreement (the "Put Agreement") between the Project Lender and the City substantially in the form attached hereto as Exhibit L, with such modifications thereto as may be reasonably acceptable to the Project Lender and the City. Pursuant to the Put Agreement, the Project Lender will have the option, for a period of five (5) years following the Completion Date, to notify the City that it will require the City to purchase 11 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 16 of 42 the Parking Unit for a purchase price of $9,300,000 if the Project Lender forecloses (by judicial foreclosure, deed in lieu or otherwise) against the Project following an event of default by the Developer under the applicable Project Financing documents. The City agrees to establish and maintain a capital improvement project account of $9,300,000 during the term of the Put Agreement for the purchase of the Parking Unit as more particularly provided in the Put Agreement. The City shall enter into the Put Agreement with the Project Lender simultaneously with the closing of the Project Financing. The structure of the Project Financing and security therefor (whether through one mortgage, multiple mortgages or otherwise) shall not be limited or restricted in any way by the terms of this Article 6, provided that the City shall be required to purchase the Parking Unit only upon the terms and conditions set forth in the Put Agreement. The Project Lender shall have the ability to assign the Put Agreement upon the terms and conditions set forth therein, but the City shall have no right to assign the Put Agreement. The City shall not modify or amend (or consent to a modification or amendment to) the Put Agreement without the prior written consent of the Developer. Once the Put Agreement is executed, the City's obligation to purchase the Parking Unit shall be governed by the Put Agreement and shall not be terminated and/or affected in any way by a subsequent termination of this Agreement. With respect to the subject matter of the Put Agreement, the terms of the Put Agreement shall govern and control over any conflicting or inconsistent terms of this Agreement. 6.02 Notice of Project Financing to City. As soon as the Developer shall have obtained any financing for the Project, the Developer shall provide the City with a sworn statement identifying the name and address of the Project Lender(s) and documenting the type of financing that the Project Lender(s) has issued in favor of the Developer for the Project. 6.03 Copy of Default Notice to City. The Developer covenants and agrees that either the Put Agreement or the Project Financing documents shall include a provision which provides that in the event any Project Financing secured by the Parking Unit shall become due and payable by maturity or acceleration, the Project Lender shall give written notice thereof to the City by certified mail, return receipt requested, or by overnight courier or by hand deliver. Such notice from the Project Lender to the City shall state the basis of the default by the Developer and shall include copies of any pleadings in any proceeding instituted by the Project Lender(s) incident thereto. 6.04 Notices to/from Project Lenders. Any notice or other communication which the City shall desire or is required to give to or serve upon Project Lender shall be in writing and shall be served by certified mail, return receipt requested, or overnight courier or by hand delivery, addressed to such Project Lender at its address as set forth in the sworn statement to the City under Section 6.02, or at such other address as shall be designated from time to time by such Project Lender by notice in writing given to the city. 6.05 Rights of Project Lenders. The City hereby agrees with and for the benefit of each Project Lender: 12 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 17 of 42 (1) When giving notice to the Developer with respect to any default under this Development Agreement or any exercise of any right to terminate this Development Agreement, the City will also give a copy of such notice to each Project Lender, and no such notice to the Developer shall be deemed effective with respect to any Project Lender unless such notice is also given in said manner to each such Project Lender. (2) In case the Developer shall default in respect of any of the provisions of this Development Agreement, any Project Lender shall have the right, but not the obligation, to cure such default and the City shall accept performance by or on behalf of such Project Lender as though, and with the same effect as if, the same had been done or performed by the Developer. A Project Lender will have a period of time after the service of such notice upon it within which to cure the default specified in such notice, or cause it to be cured, which is the same period for cure, if any, as is given to the Developer under this Development Agreement in respect of the specified default after the giving of such notice to the Developer, plus an additional period of thirty (30) days. In the event of a default (or in the event that the City is seeking to terminate this Development Agreement by reason of a default) which is curable without Project Lender being in possession and control of the Property, but cannot reasonably be cured within said period, the period of time for cure shall be extended for so long as any Project Lender is diligently and continuously proceeding to attempt to cure such default, provided that the Project Lender has begun proceedings to cure the default within the said period. (3) With respect to any default by the Developer under this Development Agreement that is not susceptible of being cured by the Project Lender without being in possession and control of the Property, the City shall take no action to terminate this Development Agreement on account of such default if, within ninety (90) days after notice of the default from the City (subject to any bankruptcy stays), the Project Lender shall have commenced appropriate proceedings to obtain possession of the Property (including possession by a receiver) or to foreclose the Project, and shall thereafter be prosecuting the same to completion in good faith, with diligence and continuity (subject to any bankruptcy stays); provided, however, that (i) the Project Lender shall conclude any proceedings to obtain possession of the Property or to foreclose the Project (as applicable, including the removal of any bankruptcy stay) within eighteen (18) months following commencement of such action, (ii) during the period of the City's forbearance, the Project Lender shall comply with such of the terms, covenants and conditions of this Development Agreement as are then susceptible of compliance by the Project Lender, and (iii) if and after the Project Lender obtains possession of the Property, the Project Lender shall promptly commence and diligently pursue the curing of all defaults under this Development Agreement then susceptible of being cured by the Project Lender. 13 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 18 of 42 (4) The City agrees to consider reasonable modifications to this Section 6.05 requested by any Project Lender in connection with the closing of the Project Financing, provided that such modifications do not result in any changes in the Project to be constructed hereunder or impair the City's rights or impose any additional obligations on the City or adversely affect the City's remedies in the event of any default. (5) The provisions of this Section 6.04 in favor of the Project Lender shall inure to the benefit of the Project Lender and its successors, assigns and designees, and also any other purchaser or transferee of the Project and this Development Agreement pursuant to any foreclosure or bankruptcy proceedings, or assignment in lieu thereof. ARTICLE 7. INDEMNIFICATION. 7.01 Indemnification by the Developer. (1) The Developer agrees to indemnify, defend and hold harmless, the City, its respective agents, officers, or employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of any act or omission of the Developer, its agents, employees or contractors arising out of, in connection with or by reason of, the performance of its obligations covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of such obligations. (2) The Developer shall indemnify, defend and hold harmless the City, its officers and employees from any and all liabilities, damages, costs, 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. 14 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 19 of 42 7.02 Indemnification by the City. (1) To the extent permitted by law, the City agrees to indemnify, defend and hold harmless, the Developer, its respective officers, and employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of, any act or omission of the City, its respective agents or employees arising out of, in connection with or by reason of, the performance of its obligations covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of such obligations. (2) The City shall indemnify, defend and hold harmless the Developer, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the City, as the case may be, of any representations or warranties contained in Section 9.01, or covenants contained in Section 9.02. (3) The City's indemnity obligations under this Section 7.02 shall survive the earlier of the Termination Date or the Expiration Date, but shall only apply to occurrences, acts or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. (4) The City's indemnity hereunder is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, but is in addition to and not limited by any insurance policy provided that said 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 15 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 20 of 42 subrogated the indemnifying party to the indemnified party's rights against any third party by an assignment to the indemnifying party of any cause or action against such third party. ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER. 8.01 Representations and Warranties. The Developer represents and warrants to the City that each of the following statements is currently true and accurate and agrees the City may rely upon each of the following statements: (1) The Developer is a Florida corporation duly organized and validly existing under the laws of the State of Florida, has all requisite power and authority to carry on its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party, is qualified to do business in the State of Florida, and has consented to service of process upon a designated agent for service of process in the State of Florida. (2) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Developer, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof: (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, or (iii) contravenes or results in any breach of, default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the Developer's Articles of Incorporation, or, on the date of this Agreement, any other agreement or instrument to which the Developer is a party or by which the Developer may be bound. (3) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Developer enforceable against the Developer in accordance with the terms thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights 16 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 21 of 42 generally and subject to usual equitable principles in the event that equitable remedies are involved. (4) There are no pending or, to the knowledge of the Developer threatened actions or proceedings before any court or administrative agency against the Developer, or against any controlling shareholder, officer, employee or agent of the Developer which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Developer. (5) All financial information and other documentation, including that pertaining to the Project or the Developer, delivered by the Developer to the City was, on the date of delivery thereof, true and correct in all material respects. (6) As of the Effective Date, the Developer will have the financial capability to carry out its obligations and responsibilities in connection with the development of the Project as contemplated by this Agreement, subject to closing the Project Financing. (7) The Developer has the experience, expertise, and capability to develop, cause the construction, and complete the Project and, oversee and manage the design, planning, construction, completion and opening for business of the Project. 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. 17 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 22 of 42 (4) Subsequent to the Effective Date, the Developer shall maintain its financial capability to develop, construct and complete the Project and shall promptly notify the City of any event, condition, occurrence, or change in its financial condition which materially adversely affects, or with the passage of time is likely to materially adversely affect, the Developer's financial capability to successfully and completely develop, construct and complete the Project as contemplated hereby. (5) Subject to Section 15.01, from the Effective Date through the Completion Date, the Developer shall maintain its existence, will not dissolve or substantially dissolve all of its assets and will not consolidate with or merge into another corporation, limited partnership, or other entity or permit one or more other corporations or other entity to consolidate with or merge into it without the prior approval of the City unless the Developer retains a controlling interest in the consolidated or merged corporation, and will promptly notify the City of any changes to the existence or form of the corporation or any change in the controlling shareholders, officers or directors of the Developer. (6) Other than sales and assignments contemplated by this Agreement, the Developer shall not sell, lease, transfer or otherwise dispose of all or substantially all its assets without adequate consideration and will otherwise take no action which shall have the effect, singularly or in the aggregate, of rendering the Developer unable to continue to observe and perform the covenants, agreements, and conditions hereof and the 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. 18 Item # 11 v11 MIA 180,69Z234 Attachment number 3 Page 23 of 42 (2) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the City, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the City, or (iii) contravenes or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the City under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the City is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the City outstanding on the Effective Date. (3) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of the City enforceable against the City in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time 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 19 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 24 of 42 contemplated by this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts, or agreements that are applicable thereto, and, to the extent permitted by law, the City will not enact or adopt or urge or encourage the adoption of any ordinances, resolutions, rules regulations or orders or approve or enter into any contracts or agreements, including issuing any bonds, notes, or other forms of indebtedness, that will result in any provision of this Agreement to be in violation thereof. (4) The City shall not request or recommend any rezoning of the Property, or any part thereof, or any change in the Comprehensive Plan, which will prevent or adversely affect the development of the Project. (5) The City shall maintain its financial capability to carry out its responsibilities as contemplated by this Agreement and shall notify the Developer of any event, condition, occurrence, or change in its financial condition which materially adversely affects, or with the passage of time is likely to materially adversely affect, the City's financial capability to carry out its responsibilities contemplated hereby. ARTICLE 10. CONDITIONS PRECEDENT. 10.01 Construction of Project. Subject to termination of this Agreement pursuant to Article 11, the obligation of the Developer to commence construction of the Project on the Commencement Date is subject to the fulfillment to the satisfaction of, or waiver in writing by, the Developer of the following conditions: (1) The Plans and Specifications that are necessary to commence construction shall have been approved by the City (to the extent required under this Agreement) and by any other applicable Governmental Authority, and the initial Permit for the commencement of construction of the Project and all other Permits necessary for construction to commence shall have been issued.. (2) FEMA shall have approved the Flood Zone Change, all appeal periods allowing for any challenge of the Flood Zone Change shall have expired and the Flood Zone Change shall have become permanently effective (following final resolution of any appeals, if applicable). (3) The Project Financing shall have closed and conditions to funding shall have been satisfied. (4) The City Council shall have adopted an ordinance effecting the Vacation of Right-of-Way as contemplated in Section 5.02(1) hereof. 10.02 Responsibilities of the Parties for Conditions Precedent. The parties hereto shall not, individually or collectively, knowingly, intentionally or negligently prevent any condition precedent from occurring; provided, however, nothing in this Section is 20 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 25 of 42 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: (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. (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 Item # 11 21 01 W 180,692,234 Attachment number 3 Page 26 of 42 cure to completion within such reasonable longer period of time as may be necessary (provided, however, if the Developer is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of the City being required, but such approval will be required if the curative period is to be extended beyond six (6) months after the notice of default has been given by the City to the Developer), then, in addition to any remedy available under Section 11.05, the City may terminate this Agreement or pursue any and all legal or equitable remedies to which the City is entitled. (b) Any attempt by the City to pursue any of the above referenced remedies will not be deemed an exclusive election of remedy or waiver of the City's right to pursue any other remedy to which either may be entitled. (c) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. (3) Notwithstanding any provision of this Section, a default by the Developer following the Completion Date shall not affect the title of any condominium unit or common area conveyed by the Developer to an unrelated third party or to a condominium association which is not controlled by the Developer. 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 22 Item # 11 01 MIA 180,69Z 234 Attachment number 3 Page 27 of 42 (not to exceed, however, six (6) months from the Developer's notice), then the Developer may terminate this Agreement, institute an action to compel specific performance of the terms hereof by the City or pursue any and all legal or equitable remedies to which the Developer is entitled. (b) Any attempt by the Developer to pursue any of the remedies referred to in subparagraph (a) above will not be deemed an exclusive election of remedy or waiver of the Developer's right to pursue any other remedy to which it might be entitled. (c) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. 11.03 Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to the contrary, the specified rights and remedies to which either the City or the Developer are entitled under this Agreement are not exclusive and are intended to be in addition to any other remedies or means of redress to which the City or the Developer may lawfully be entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in, the performance of its obligations by the Developer while the City shall at such time be in default of their obligations hereunder shall not be deemed to be an "event of default." The suspension of, or delay in, the performance of the obligations by the City while the Developer shall at such time be in default of its obligations hereunder shall not be deemed to be an "event of default" by the City. 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 23 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 28 of 42 diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or condition to occur or be satisfied, the,'failure of the events or conditions listed in subsection (2) below to occur or be satisfied shall not constitute an event of default by any party under this Article 11, but may, upon the election of any party hereto, be the basis for a termination of this Agreement in accordance with this Section. (2) In addition to any other rights of termination provided elsewhere in this Agreement, this Agreement may be terminated as provided in subsection (3) of this section by the City or the Developer after the occurrence of any of the following events or conditions (except for subsection (b), in which event only the Developer may terminate this Agreement pursuant to this subsection (2)): (a) The appropriate Governmental Authority (including the City in exercise of its governmental and regulatory authority and responsibility), upon petition by the Developer denies or fails to: issue the necessary order or other action necessary to vacate the right-of-way as described in Section 5.02(1), approve the Flood Zone Change, issue the Permits or any other land use approval necessary to commence construction of the Project on the Property, provided the Developer has proceeded diligently, expeditiously and in good faith to obtain such approval, permits or other necessary actions; (b) A previously unknown site condition is subsequently discovered and that condition prevents successful development of the Project, 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 I# 9 1 24 Attachment number 3 Page 29 of 42 result of this Agreement or any actions taken by the Developer and the City, or any of them, hereunder or contemplated hereby, and each party shall be responsible for its own costs. 11.06 Termination Certificate. (1) In the event of a termination of this Agreement for any reason prior to the Expiration Date, each of the parties hereto do covenant and agree with each other to promptly execute a certificate prepared by the party electing to terminate this Agreement, which certificate shall expressly state that this Agreement has been terminated in accordance with its terms, is no longer of any force and effect except for those provisions hereof which expressly survive termination, that the rights, duties and obligations of the parties hereto have been terminated and released (subject to those surviving provisions hereof) and that the Property is no longer subject to any restrictions, limitations or encumbrances imposed by this Agreement. (2) The certificate described in Section (1) shall be prepared in a form suitable for recording and promptly after execution by all of the parties hereto shall be recorded in the public records of Pinellas County, Florida. ARTICLE 12. ARBITRATION 12.01 Agreement to Arbitrate. Only as specifically provided in this Agreement and only if any judicial or administrative action or proceeding has not been commenced with regard to the same matter and, if so, the party hereto commencing such action has not dismissed it, any disagreement or dispute between the parties may be arbitrated in the 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 25 Item # 11 v11 MIA 180,69Z 234 Attachment number 3 Page 30 of 42 whom an objection is not made by any other party hereto within five (5) days of receipt of the notice of such appointment as the arbitrator or, if more than one (1) arbitrator is to be appointed, as one of the arbitrators. (b) Within ten (10) days after receipt of the notice described in paragraph (1), the other parties shall by written notice to the original party acknowledge that arbitration has been invoked as permitted by this Agreement, and shall either accept and approve the appointment of such individual set forth in the original notice as a sole arbitrator or shall appoint one (1) disinterested person per party of recognized competence in such field as an arbitrator. (2) (a) If two (2) arbitrators are appointed pursuant to subsection (a) above, the arbitrators thus appointed shall appoint a third disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association, and such three (3) arbitrators shall as promptly as possible determine such matter. (b) If the second arbitrator shall not have been appointed as provided in subsection (a), the first arbitrator shall, after ten (10) days notice to the parties, proceed to determine such matter. (c) If the two (2) arbitrators appointed by the parties pursuant to subsection (a) shall be unable to agree within fifteen (15) days after the appointment of the second arbitrator upon the appointment of a third arbitrator, they shall give written notice of such failure to agree 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 26 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 31 of 42 Agreement, or award any damages or other compensation to any party hereto. The arbitration proceedings shall follow the rules and procedures of the American Arbitration Association (or any successor organization thereto) unless specifically modified by this Agreement, or as then agreed to by the parties hereto. 12.04 Majority Rule. In any arbitration proceeding under this part, the determination of the majority of the panel of arbitrators, or of the sole arbitrator if only one (1) arbitrator is used, shall be conclusive upon the parties and judgment upon the same may be entered in any court having jurisdiction thereof. The arbitrator or panel of arbitrators shall give written notice to the parties stating his or their determination within thirty (30) days after the conclusion of the hearing or final submission of all evidence or argument. 12.05 Replacement of Arbitrator. In the event of the failure, refusal or inability of any arbitrator to serve as such, promptly upon such determination being made by the affected arbitrator, the affected arbitrator shall give notice to the other two (2) arbitrators (if applicable) and to the parties hereto, and then a new arbitrator shall be promptly appointed as a replacement, which appointment shall be made by the party or the arbitrators who appointed the affected arbitrator in the same manner as provided for in the original appointment of the affected arbitrator in Section 12.02 hereof. 12.06 Decision of Arbitrators. (1) If any decision reached by arbitration as provided in this part requires performance by the Developer, the Developer covenants and agrees to comply with any decision of the arbitrator(s) promptly after the date of receipt by the Developer of such decision, and to continue such performance to completion with due diligence and in good faith. (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. Item # 11 27 Attachment number 3 Page 32 of 42 12.08 Accelerated Arbitration. (1) (a) If any of the parties to any arbitration proceeding under this part determines the matter for arbitration should be decided on an expedited basis, then after an initial election to invoke arbitration pursuant to Section 12.02 hereof has been made, either party to such proceeding may invoke accelerated arbitration by giving notice thereof to the other parties no later than three (3) days after arbitration has been initially invoked and the other parties do not object within three (3) days thereafter. (b) Accelerated arbitration, for purposes of this Section 12.08, shall be accomplished by either party notifying the American Arbitration Association (or any successor organization thereto) that the parties have agreed to a single arbitrator, qualified to decide the matter for arbitration, to be appointed by the American Arbitration Association (or any successor organization thereto) with the consent of the parties to such proceeding within three (3) days after receipt of the request and to decide such matter within five (5) days after such appointment. (c) If an arbitrator is not so appointed with consent of the parties to the proceeding within three (3) days after the notice referred to in paragraph (2) is received by the American Arbitration Association, the accelerated proceeding under this Section 12.08 shall terminate and the procedures otherwise set forth in this Article 12 shall apply, unless the parties mutually agree to an extension of such time period. (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. 28 Item # 11 v11 MIA 180,69Z234 Attachment number 3 Page 33 of 42 ARTICLE 13. UNAVOIDABLE DELAY. 13.01 Unavoidable Delay. (1) Any delay in performance of or inability to perform any obligation (other than an obligation to pay money) or meet any date or deadline (including without limitation the Commencement Date and the Completion Date) under this Agreement due to any event or condition described in subparagraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in this Section 13.01. (2) "Unavoidable Delay" means any of the following events or conditions or any combination thereof: acts of God, litigation which has the effect of precluding reasonable satisfaction of the obligations of this Agreement, acts of the public enemy, riot, insurrection, war, pestilence, archaeological excavations required by law, delays relating to Applicable Laws or approval of Permits beyond the control of the party seeking same, unavailability of materials after timely ordering of same, epidemics, quarantine restrictions, freight embargoes, fire, lightning, hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement weather (as indicated by the records of the local weather bureau for a five-year period preceding the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73 and 74, Florida Statutes, restoration in connection with any of the foregoing or any other cause beyond the reasonable control of the party performing the obligation in question, including, without limitation, such causes as may arise from the act of the other party to this Agreement, or acts of any Governmental Authority (except that acts of the City shall not constitute an Unavoidable Delay with respect to performance by the City). (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. 29 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 34 of 42 ARTICLE 14. FIRE OR OTHER CASUALTY; CONDEMNATION. 14.01 Loss or Damage to Project. (1) Until the Completion Date, subject to the extent, availability and sufficiency of insurance proceeds or the condemnation award (as applicable) and the Project Lender's consent and approval (as set forth below in subparagraph (3)), the Developer covenants and agrees to diligently commence and complete the reconstruction or repair of any loss or damage caused by fire or other casualty or by eminent domain (provided the City is not the condemning authority) to the Project (or any portion thereof) to substantially the same size, floor area, cubic content and general appearance as existed prior to the occurrence of such loss or damage, promptly after the City approves the Plans and Specifications (if and to the extent required, and subject to the limitations on the City's approval, under this Agreement) for such reconstruction or repairs. (2) The City shall review the Plans and Specifications (if and to the extent required, and subject to the limitations on the City's approval, under this Agreement) for such reconstruction or repairs as soon as possible after filing thereof by the Developer. The City agrees to approve the Plans and Specifications for such reconstruction or repairs if the reconstruction or repairs contemplated by such Plans and Specifications will restore the Project, or the damaged portion thereof, to substantially the same condition as existed prior to the occurrence of such loss or damage or such approval is otherwise required under Section 4.01(3), and if such Plans and Specifications conform to the applicable laws, ordinances, codes, and regulations in effect at the time of filing with the City of the plans and specifications for such reconstruction or repairs. (3) If (a) the insurance proceeds or condemnation award (as applicable) received are insufficient to complete the repairs, or (b) any Project Lender 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 30 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 35 of 42 terminate this Agreement or to relieve or discharge the Developer from the timely performance and fulfillment of the Developer's obligations pursuant to this Agreement, subject to an extension of time for an Unavoidable Delay, any requirements and conditions of the Project Lender, and the terms of Section 14.01(3). 14.03 Project Insurance Proceeds. (1) Whenever the Project, or any part thereof, shall have been damaged or destroyed, the Developer shall promptly make proof of loss and shall proceed promptly to collect, or cause to be collected, all valid claims which may have arisen against insurers or others based upon such damage or destruction. (2) Subject to the rights of a Project Lender, the Developer agrees that all proceeds of property or casualty insurance received by the Developer as a result of such loss or damage shall be available and shall be used for payment of the costs of the reconstruction or repair of the Project to the extent necessary to repair or reconstruct the Project, subject to the terms of this Article 14. 14.04 Notice of Loss or Damage to Project. The Developer shall promptly give the City written notice of any significant damage or destruction to the Project stating the date on which such damage or destruction occurred, the expectations of the Developer as to the effect of such damage or destruction on the use of the Project, and the proposed schedule, if any, for repair or reconstruction of the Project. 14.05 Condemnation of Project or Property; Application of Proceeds. In the event that part, but not all, of the Project or Property, or both, shall be taken by the exercise of the power of eminent domain at any time before the Expiration Date, subject to the rights of a Project Lender, the compensation awarded to and received by the Developer shall be applied first to the restoration of the Project, provided the Project can be 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. 31 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 36 of 42 ARTICLE 15. MISCELLANEOUS 15.01 Assignments. (1) By the Developer. a. Prior to the Commencement Date, the Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Project, or any part thereof, only with the prior written consent of the City, which consent shall not be unreasonably withheld, provided that such party (hereinafter referred to as the "assignee"), to the extent of the sale, conveyance, assignment or other disposition by the Developer to the assignee, shall be bound by the terms of this Agreement the same as the Developer for such part of the Project as is subject to such sale, conveyance, assignment or other disposition. b. If the assignee of the Developer's right, title, interest and obligations in and to the Project, or any part thereof assumes all of the Developer's obligations hereunder for the Project, or that part subject to such sale, conveyance, assignment or other disposition, then the Developer shall be released from all such obligations hereunder which have been so assumed by the assignee, and the City agrees to execute an instrument evidencing such release, which shall be in recordable form. C. An assignment or transfer of the Project, or any part thereof, by the Developer to any corporation, limited liability company, limited partnership, general partnership, joint venture or other business entity, in which the Developer (or any person(s) or entity controlling, controlled by or under common control with the Developer) is the or a general partner or managing member or has either the controlling interest or through a joint venture or other arrangement shares equal management rights with a financial institution and maintains such controlling interest or equal management rights shall not be deemed an assignment or transfer subject to any restriction on or 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. 32 Item # 11 v11 MIA 180,69Z234 Attachment number 3 Page 37 of 42 15.02 Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the City, and its successors and permitted assigns, and the Developer and its successors and permitted assigns, except as may otherwise be specifically provided herein. 15.03 Notices. (1) All notices, demands, requests for approvals or other communications given by either party to another shall be in writing, and shall be sent by registered or certified mail, postage prepaid, return receipt requested or by courier service, or by hand delivery to the office for each party indicated below and addressed as follows: To the Developer: L.O.M., Inc. c/o Surf Style, Inc. 4100 N. 28th Terrace Hollywood, Florida 33020 Attn: Controller To the City: City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager with copies to: with copies to: Greenberg Traurig, P.A. Pamela K. Akin, Esq. 1221 Brickell Avenue, 23rd Floor Clearwater City Attorney Miami, Florida 33131 112 S. Osceola Avenue Attn: Nancy B. Lash, Esq. Clearwater, FL 33756 (2) Notices given by courier service or by hand delivery shall be effective upon delivery and notices given by mail shall be effective on the third (3rd) business day after mailing. Refusal by any person to accept delivery of any notice delivered to the office at the address indicated above (or as it may be changed) shall be deemed to have been an effective delivery as provided in this Section 15.03. The addresses to which notices are to be sent may be changed from time to time by written notice delivered to the other parties and such notices shall be effective upon receipt. Until notice of change of address is received as to any particular party hereto, all other parties may rely upon the last address given. 15.04 Applicable Law and Construction. The laws of the State of Florida shall govern the validity, performance and enforcement of this Agreement. This Agreement has been negotiated by the City and the Developer and the Agreement, including, without limitation, the Exhibits, shall not be deemed to have been prepared by the City or the Developer, but by all equally. 33 Item # 11 01 MIA 180,69Z234 Attachment number 3 Page 38 of 42 15.05 Venue; Submission to Jurisdiction. (1) For purposes of any suit action, or other proceeding arising out of or relating to this Agreement, the parties hereto do acknowledge, consent, and agree that venue thereof is Pinellas County, Florida. (2) Each party to this Agreement hereby submits to the jurisdiction of the State of Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States District Court for the Middle District of Florida, for the purposes of any suit, action, or other proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of a motion as a defense or otherwise that such action is brought in an inconvenient forum or that the venue of such action is improper or that the subject matter thereof may not be enforced in or by such courts. (3) If at any time during the term of this Agreement the Developer is not a resident of the State of Florida or has no office, employee, City or general partner thereof available for service of process as a resident of the State of Florida, or if any permitted assignee thereof shall be a foreign corporation, partnership or other entity or shall have no officer, employee, agent, or general partner available for service of process in the State of Florida, the Developer hereby designates the Secretary of State, State of Florida, its agent for the service of process in any court action between it and the City, or both, arising out of or relating to this Agreement and such service shall be made as provided by the laws of the State of Florida for service upon a non- resident; provided, however, that at the time of service on the Florida Secretary of State, a copy of such service shall be delivered to the Developer at the address for notices as provided in 18.03. 15.06 Estoppel Certificates. The Developer and the City shall at any time and from time to time, upon not less than ten (10) days prior notice by another party hereto, execute, acknowledge and deliver to the other parties a statement certifying that this Agreement has not been modified and is in full force and effect (or if there have been modifications that the said Agreement as modified is in full force and effect and setting forth a notation of such modifications), and that to the knowledge of such party, neither it nor any other party is then in default hereof (or if another party is then in default hereof, stating the nature and details of such default), it being intended that any such statement delivered pursuant to this Section 15.06 may be relied upon by any 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 34 Item # 11 v11 MIA 180,69Z 234 Attachment number 3 Page 39 of 42 supersedes and controls over understandings, representations, whether written or oral. any and all prior agreements, correspondence and statements, (2) Any provision of this Agreement shall be read and applied in pari materia with all other provisions hereof. (3) This Agreement cannot be changed or revised except by written amendment signed by all parties hereto. 15.08 Captions. The article and section headings and captions of this Agreement and the table of contents preceding this Agreement are for convenience and reference only and in no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way affect this Agreement or construe any article, section, subsection, paragraph or provision hereof. 15.09 Holidays. It is hereby agreed and declared that whenever a notice or performance under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal holiday observed in the City, it shall be postponed to the next following business day. 15.10 Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not physically attached hereto shall be treated as if they are part of this Agreement. 15.11 No Brokers. The City and the Developer hereby represent, agree and acknowledge that no real estate broker or other person is entitled to claim or to be paid a commission as a result of the execution and delivery of this Agreement, including any of the Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any or all of the Property. 15.12 Not an Agent of City. During the term of this Agreement, the Developer hereunder shall not be an agent of the City with respect to any and all services to be performed by the Developer (and any of its agents, assigns, or successors) with respect to the Project. 15.13 Recording of Development Agreement. Pursuant to §163.3239 of the Florida Statutes (2004), the City authorizes and hereby directs the City Clerk to record this Agreement in the public records of Pinellas County, Florida, within fourteen (14) days after City Council approval of this Agreement. The Developer shall pay the cost of such recording. A copy of the recorded Agreement shall be submitted by the City to the state land planning agency within fourteen (14) days after this Agreement is recorded, with evidence of such submittal to be provided to the Developer. 15.14 Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills and is pursuant to and for a public purpose and municipal purpose and is in the public interest, and is a proper exercise of the City's power and authority. 35 Item # 11 v11 MIA 180,69Z234 Attachment number 3 Page 40 of 42 15.15 No General Obligation. In no event shall any obligation of the City under this Agreement be or constitute a general obligation or indebtedness of the City, or a pledge of the ad valorem taxing power of the City within the meaning of the Constitution of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds. Neither the Developer nor any other party under or beneficiary of this Agreement shall ever have the right to compel the exercise of the ad valorem taxing power of the City or any other governmental entity or taxation in any form on any real or personal property to pay the City's obligations or undertakings hereunder. 15.16 Other Requirements of State Law. Nothing in this Agreement shall be deemed to relieve either party from full compliance with any provision of State law which is applicable to any of the obligations or under takings provided for in this Agreement. In the event that this Agreement omits an obligation to comply with any provision of State law in regard to any of the obligations or undertakings provided for in this Agreement, it is the intention of the parties that such applicable State law shall be deemed incorporated into this Agreement and made a part thereof. In the event that there is any conflict between the provisions of this Agreement and applicable State law, it is the intention of the parties that the Agreement shall be construed to incorporate such provisions of State law and that such provisions shall control. 15.17 Technical Amendments. In the event that due to minor inaccuracies contained herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to changes resulting from technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances which do not change the substance of this Agreement may be made and incorporated herein. The City Manager is authorized to approve such technical amendments, on behalf of the City, with the written approval of the Developer, and is authorized to execute any required instruments, amendments and approvals, to make and incorporate such amendment (so approved by the Developer) to this Agreement or any Exhibit attached hereto or any other agreement contemplated hereby. 15.18 Term; Expiration; Certificate. (1) If not earlier terminated as provided in Section 11.05, this Agreement shall automatically expire and no longer be of any force and effect on the Expiration Date. (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. Item # 11 36 01 MIA 180.692.234 Attachment number 3 Page 41 of 42 (3) In the event of any dispute as to whether any party is required to execute the Agreement Expiration Certificate, the dispute shall be resolved by arbitration as provided in Article 12. (4) The Agreement Expiration Certificate shall be in such form as will enable it to be recorded in the Public Records of Pinellas County, Florida. Following execution by all of the parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer in the Public Records of Pinellas County, Florida and the Developer shall pay the cost of such recording. 15.19 Approvals Not Unreasonably Withheld. The parties hereto represent that it is their respective intent as of the Effective Date and do covenant and agree in the future that all approvals, consents, and reviews will be undertaken and completed as expeditiously as possible, in good faith, and will not be arbitrarily or unreasonably withheld, conditioned or delayed, unless otherwise expressly authorized by the terms of this Agreement. Whenever in this Agreement the approval or consent of the City is required, the written approval or consent regarding the matter in question by the City Manager or his/her designee on behalf of the City shall satisfy the requirement for approval or consent of the City. However, any amendments or modifications to this Agreement or any exhibits hereto, except as otherwise provided in Section 15.17 hereof, shall require City Council approval. 15.20 Waiver of Jury Trial. The parties hereto hereby each knowingly, irrevocably, voluntarily and intentionally waive any right such party may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement to the parties to enter into this Agreement. 15.21 Effective Date. As provided by §163.3239 of the Florida Statutes (2004), this Agreement will become effective after being recorded in the Public Records of Pinellas County, Florida and 30 days after having been received by the state land planning agency. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURES ON FOLLOWING PAGE(S)] 37 Item # 11 01 MIA 180,692,234 Attachment number 3 Page 42 of 42 IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of this day of , 2010. Countersigned: CITY OF CLEARWATER, FLORIDA 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 2010 by , as L.O.M., INC, a Florida corporation, on behalf of the corporation. By: Signature of Notary Public Printed, typed or stamp By: William B. Horne II City Manager Attest: Cynthia E. Goudeau City Clerk L.O.M., INC., a Florida corporation By:_ Name: Title: day of , of My Commission Expires: 38 Item # 11 v11 MIA 180, 692, 234 Attachment number 4 Page 1 of 1 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Legal Description of Property prior to Vacation of Right-of-Way: PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. Legal Description of Property after Vacation of Right-of-Way: PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°15'44"E a distance of 35.00 feet to the Point of Beginning. 1 Item # 11 01 MIA 180,69Z 234 -ONO `NSIS30 m3ou3N13 ?a ape_. SNOIIVA313 JNI91I a 11"3AO HQfTJ Q'I? I{OHE39 ZiEI.,LHMTJHEI'7. `J ?JgiVWJV310 JO Ally Siil?18 ! 3IAlS jOs k i w 'w „ ? Uf' U 4?o w ? ? w oo § a z 0 w w 1 4 : l % Qao I _ II ._- I . I I Z 0 J m z' J O' Q Q ' W w > J Ow v w r aa? 0 w 0 zm r, ,r. s w 4 v III ,v 4 t' 11 II t? } 7- 717- 1 I r .,. I? - II f?.u Il 40- w Attachment number 7 Pa e SKETCH of DESCRIPTION THIS IS NOT A BOUNDARY SURVEY SCALE 1" = 50' 0' 50' 100' ' ` LOT 59 ?•' NW 60 corner ?r ' i LOT 106 i iieP)----`----- ------------------ LOT -1 i r i $ 60 ?' ---- ,r z I !r i r r 1 J ? -LOT307-----?_i r ; ---------------- - ------------- 11 - - - - --- - ___-? Ljj LOT 108 r Hr ' ' jU LOT 61 ; ; I 1 r r! r r -? LOT 109 ; r 1 ?Q ; 2 LOT 62 `; ~_ 0?$ --, ; 1 35. 00 4,?+ -- _RodoT r' LOT 110 + SW Corner lot 62 LOT 63 ? + r r CURVE DATA LOT 111 i ? i r ' r i r + r + r boundaries of Lots 60, 61 and 62, THE LLOYD-WHRE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin of the Northwest comer of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing SOS'35'03'W to the Southwest comer of said Lot 62; thence N80'34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing NOS'35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S8715'44"E a distance of 35.00 feet to the Point of Beginning. Contains 6,286.20 square feet (0.144 acres), more or less. NOTES: LEGEND 1. NO UN DEIMOUND IWAL1AT10NS OR IMPROVEMENTS HAVE BEEN LOCATED EXCEPT AS SHOWN. 2. NO INSTRUMENTS OF RECORD REELECDNG EASEMENTS. RIGHT OF WAY AND/OR OWNERSHIP WERE ID 08111F1GM FURNISHED TO THIS SURVEYOR EXCEPT AS SHOWN. PL PRMTSSIM LAND SAW= 3. THIS SKETCH DOES NOT REFLECT OR DETERMINE OWNERSHIP. Le 1.109491111 11USINISS 4. USE OF THIS SKETCH BY ANYONE OTHER THAN THOSE PREPARED FOR WILL BE THE RE-USERS (p) EE or OESCIUM N IFaRIOM SOLE RISK WITHOUT WBk11Y TO THE SURVEYOR. (Fj FIID rES9lRtD 5. THE SKETCH WAS PREPARED WRHOUr THE BENEFIT OF A CURRENT TITLE COMMTTMENT AND IS Fab POW OF IEfJ!!IG SUBJECT TO EASEMEIM RIGHTS-OF-WAY AND SIMILAR MATTERS OF TIRE. POC PONT OF OMGWKEMFNT 6. MERIDIAN BASED ON THE WESIEPo.Y R*1T OF WAY LINE OF GULVEW BOULEVARD AS BEARING SO8'3WO3br (MNED). Prepared for and Certified To: DATE; rDrawing No. 902601.dwg? Project No. 9026 Keith Zoyac and Associates, Inc. September 6. 2009 Checked BY KOM Ireld Book Pages Drawn By JAC SURVEYOR'S CERTIFICATE I hereby ow" Unit ft SICZ`.Ta1 depkb6 Hinson was pafa n under my FESPONSKE SUNCOAST LAND SURVEYING, Inc. OHAW oo ti» . dwm4 oed meele the MNIMI TEGOKGIL STANDARDS nt ferlt, by 111 FOREST LAKES BOULEVARD the RaROA ? PRDFfS90 K LIW SDRVEYDRS M amptrr 51017-s, RW4DA OLDSMAR. FLA. 34677 ADMpIMTAE CODE p"wrt to Section 47202%, FLORIDA sululES. 'NON WLD WIHDUT THE 901N AND THE ORIONAL RNSEq Spl1L OF A FLORIDA UCD1SM LB APFER'. ?__._? BOUNDARY - TOPOGRAPHIC - CONS1RUC110N STAKEOUT SDRSEYOR AND M B 4513 PHONE: (813) 854-1342 FAX: (813) 855-6890 11, Y A. COPEI.AND, IIPLS No.3279 CURVE RADIUS DELTA ANGLE ARC LENGTH CHORD LENGTH CHORD BEARING C1 6017.52' 01' 42 54' ' 180.12' 180.11 ' C2 5982.52' 01'4254 779.08' 179.08' NOB'35'03'E The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent acent to the Westerly 1 of 1 Attachment number 8 Page 1 of 77 This instrument prepared by, or under the supervision of (and after recording, return to): Gary A. Saul, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, FL 33131 DECLARATION OF SURF STYLE CLEARWATER BEACH CONDOMINIUM L.O.M., Inc., a Florida corporation (the "Declarant"), hereby declares: Introduction and Submission 1.1 The Land. The Declarant owns the fee title to certain land located in Pinellas County, Florida, as more particularly described in Exhibit "1" annexed hereto (the "Land"). 1.2 Submission Statement. The Declarant hereby submits the Land and all improvements erected or to be erected thereon and all other property, real, personal or mixed owned by Declarant, which is now or hereafter situated on or within the Land - but excluding all public or private (e.g. cable television) utility installations therein or thereon - to the condominium form of ownership and use in the manner provided for in the Florida Condominium Act as it exists on the date hereof and as it may be hereafter renumbered. Without limiting any of the foregoing, no property, real, personal or mixed, not located within or upon the Land as aforesaid shall for any purposes be deemed part of the Condominium or be subject to the jurisdiction of the Association, the operation and effect of the Florida Condominium Act or any rules or regulations promulgated pursuant thereto, unless expressly provided. All provisions of this Declaration (as hereinafter defined), the Articles (as hereinafter defined), the By-Laws (as hereinafter defined) and applicable rules and regulations of the Association (as hereinafter defined) shall, to the extent applicable and unless otherwise expressly herein or therein provided to the contrary, be perpetual and be construed to be covenants running with the Condominium Property (as hereinafter defined) and with every part thereof and interest therein, and all of the provisions hereof and thereof shall be binding upon and inure to the benefit of the Owner and any subsequent owners of any Unit (as hereinafter defined) and their respective heirs, personal representatives, successors or assigns, but the same are not intended to create, nor shall they be construed as creating, any rights in or for the benefit of the general public. All present and future Unit Owners (as hereinafter defined), tenants and occupants of Units shall be subject to and shall comply with the provisions of this Declaration and any applicable rules and regulations adopted by the Association in accordance with this Declaration, as this Declaration, the Articles, the By-Laws and such rules and regulations may be amended from time to time in accordance with this Declaration. The acceptance of a deed of conveyance, or the entering into of a lease, or the entering into occupancy of any Unit, shall constitute an adoption and ratification by such Unit Owner, tenant or occupant of the provisions of this Declaration (including, but not limited to, a ratification of any appointments of aftomeys-in-fact contained herein) and the Exhibit D Item # 11 Attachment number 8 Page 2 of 77 rules and regulations of the Association, as they may be amended from time to time, in accordance with this Declaration. 1.3 Name. The name by which this condominium is to be identified is SURF STYLE CLEARWATER BEACH CONDOMINIUM (hereinafter called the "Condominium"). 2. Definitions. The following terms when used in this Declaration and in its exhibits, and as it and they may hereafter be amended, shall have the respective meanings ascribed to them in this Section, except where the context clearly indicates a different meaning: 2.1 "Act" means the Florida Condominium Act (Chapter 718 of the Florida Statutes) as it exists on the date hereof and as it may be hereafter renumbered. 2.2 "Allocated Expenses" means and shall include: (a) All expenses associated with a Shared Component (as hereinafter defined) including, but not limited to, the expenses of maintenance, operation, repair or replacement of a Shared Component, excluding expenses associated with a Casualty or a Taking (each as hereinafter defined), which expenses are allocated between the Unit Owners in proportion to each Unit 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- Item # 11 Attachment number 8 Page 3 of 77 2.9 "Board" or "Board of Directors" means the board of directors, from time to time, of the Association. 2.10 "By-Laws" mean the By-Laws of the Association, as amended from time to time. 2.11 "Casualty" means any kind or manner of damage, destruction, or physical loss of any kind affecting any portion of the Condominium Property, from any cause whatsoever, including fire, storm, hurricane, flood, earthquake, explosion, act of God, act of war, structural or mechanical failure, or any act or failure to act of any person, whether or not the same may be insured or insurable, other than as a result of (a) normal obsolescence or ordinary wear and tear, (b) any Taking, or (c) any voluntary demolition or removal of improvements by one or more Unit Owners or the Association pursuant to the provisions of this Declaration. 2.12 "Charges" mean a share of the funds required for the payment of Common Expenses, Allocated Expenses or other charges hereunder, including, without limitation, charges levied by the Association, charges levied by a Responsible Unit Owner (as hereinafter defined), Allocated Expenses, insurance related expenses, and all costs and expenses for the maintenance, management, operation and insurance of the Condominium Property, which share may from time to time be levied or assessed against some, but not all Unit Owners, in accordance with the provisions and terms of this Declaration. Charges are not intended to be Assessments which are governed by the Act, but rather are amounts imposed and secured under the terms of this instrument and common law. 2.13 "Committee" means a group of Board Members, Unit Owners or Board Members and Unit Owners appointed by the Board or a member of the Board to make recommendations to the Board regarding the Association budget or to take action on behalf of the Board. 2.14 "Common Elements" mean and include: (a) The portions of the Condominium Property which are not included within the Units and/or Association Property. (b) An easement of support in every portion of a Unit which contributes to the support of the Building. (c) Any other parts of the Condominium Property designated as Common Elements in this Declaration or required to be Common Elements pursuant to the Act. 2.15 "Common Expenses" mean all expenses incurred by the Association for the operation, maintenance, repair, replacement or protection of the Common Elements and Association Property, the costs of carrying out the powers and duties of the Association, and any other expense, whether or not included in the foregoing, designated as a "Common Expense" by the Act, the Declaration, the Articles or the Bylaws. For all purposes of this Declaration, "Common Expenses" shall also include, without limitation: all reserves required by the Act or otherwise established by the Association (but same shall not preclude the waiving of reserves as permitted by the Act), regardless of when reserve funds are expended; (d) any valid charge against the Condominium Property as a whole, the cost of which has not been allocated to one or more Unit Owner(s) under the terns of this Declaration, but which shall be shared among the Unit Owners in proportion to each Unit Owner's Percentage Share, (e) all expenses related to the installation, repair, maintenance, operation, alteration and/or replacement of any Common Element Life Safety -3- Item # 11 Attachment number 8 Page 4 of 77 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. 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 -4- Item # 11 Attachment number 8 Page 5 of 77 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 7 attached hereto. Subject to the other provisions of this Declaration, the Parking Unit is designed and intended to be used for any purpose permitted by applicable zoning ordinances. References herein to "Units" or "Parcels" shall include the Parking Unit unless the context would prohibit or it is otherwise expressly provided. Notwithstanding the designation of the Unit as the "Parking Unit", the name alone shall not restrict its use, as the Parking Unit may be used for any lawful purpose. The Retail Unit Parking Area (as hereinafter defined) is not within the Parking Unit. 2.35 "Pass-thru" or "Central Pass-thru" means and refers to that portion of the Condominium Property identified as such on Exhibit 7 attached hereto. 2.36 "Percentage Share" means the undivided interest in the Common Elements appurtenant to each Unit as set forth in Section 5.1 below. 2.37 "Permittees" means and includes any Unit Owner's tenants, sub-tenants, contractors, subcontractors, agents, employees, licensees, and invitees and their respective officers, directors, contractors, subcontractors, agents, employees, licensees, invitees, customers, and visitors. 2.38 "Prime Rate" means a varying rate of interest from time to time, equal to the "Prime Rate" as reported from time to time in the "Money Rates" section of The Wall Street Joumal, as published and distributed in New York, New York, or if such rate shall cease to be published, such other rate as shall at the time be representative of the rates announced by major U.S. money center banks as the typical rate of interest charged on unsecured corporate loans. 2.39 "Repair Work" means all maintenance, repair and replacement work and capital repair and replacement work, including costs of plans and specifications, permits and inspections fees, supervision, and other related costs, whether due to ordinary wear and tear, physical or economical obsolescence or other causes, but excluding costs associated with a Casualty or a Taking. 2.40 "Responsible Insurance Party" means and refers to the Association, with respect to Common Elements, and the Responsible Unit Owner, with respect to the Shared Components. -5- Item # 11 Attachment number 8 Page 6 of 77 2.41 "Responsible Unit Owner" means the Owner of a Unit in which a specified Shared Component is located and who is designated to operate, maintain, repair, improve and insure, as applicable, the applicable Shared Component and to perform such other duties imposed on it hereunder relative to the applicable Shared Component. 2.42 "Restoration" means the repair, restoration, replacement, or reconstruction of any Improvements, structures, fixtures, or equipment that shall be affected by any Casualty or Taking to substantially the same design, condition, and functionality as existed prior to such Casualty or Taking. The term "Restore" (and related verb forms) shall mean to effect a Restoration. 2.43 "Retail Unit" means and refers to those Units identified by the prefix "RU-" on Exhibit 7 attached hereto. Subject to the provisions hereof, the Retail Units are designed and intended to be used for any purpose permitted by applicable zoning ordinances. References herein to "Units" or "Parcels" shall include the Retail Units unless the context would prohibit or it is otherwise expressly provided. Notwithstanding the designation of the Unit as a "Retail Unit", the name alone shall not restrict its use, as the Retail Units may be used for any lawful purpose. 2.44 "Retail Unit Parking Area" means that portion of Retail Unit RU-A consisting primarily of parking spaces on the 2^d level of the Improvements, as more particularly identified on Exhibit 7 attached hereto. 2.45 "Shared Components" mean those parts of a Unit, which serve and may be used by the Owners of any other Unit and such other Owner's Permittees. The Shared Components are limited to the following as the same now exist and as the same may from time to time exist: (a) ramps, drives and access control systems [depicted on Exhibit 7 as part of the Parking Unit]; (b) the Utility Facilities, including without limitation, water, sewage/waste, electric, cable/CAN/IntemetlTelephone, which are not owned by third party utility providers or governmental agencies [which are, to the extent depicted on Exhibit 7, part of the applicable Unit where located] (c) any and all Sidewalks and landscaping within, or beyond, the legal boundaries of the Condominium Property [depicted on Exhibit "2" as part of the applicable Retail Unit where located], (d) Central Pass-thru [depicted on Exhibit 7 as part of the applicable Retail Unit where located] (e) Life Safety Systems [within the applicable Unit where located], (f) exterior lighting [depicted on Exhibit 7 within the applicable Unit where located], (g) the Stairways [depicted on Exhibit "2" as part of the applicable Unit where located] and (h) Roof/water resistant membranes [which are part of the Parking Unit]. 2.46 "Sidewalks" mean and refer to any and all sidewalks, walkways and/or pathways, together with any and all landscaping installed, or to be installed, thereon, located along or upon (even if beyond the legal boundaries of) the Condominium Property. 2.47 "Special Assessment" means such sums in addition to the Assessments which may be assessed directly against all of the Unit Owners in accordance with the provisions and terms of this Declaration. 2.48 "Special Charges" means such sums in addition to the Charges which may be levied or assessed directly against some, but not all Unit Owners, in accordance with the provisions or terms of this Declaration. -s- Item # 11 Attachment number 8 Page 7 of 77 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. 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 7 consists of a survey of the Land, a graphic description of the Improvements located thereon, including, but not limited to, the Improvements upon the Land, and a plot plan thereof. Said Exhibit "2", together with this Declaration, is sufficient in detail to Item # 11 Attachment number 8 Page 8 of 77 identify the Common Elements and each Unit and their relative locations and dimensions. There shall pass with a Unit as appurtenances thereto: (a) an undivided share in the Common Elements and Common Surplus; (b) the exclusive right to use such portion of the Common Elements as may be provided in this Declaration; (c) an exclusive easement for the use of the airspace occupied by the Unit as it exists at any particular time and as the Unit may lawfully be altered or reconstructed from time to time, provided that an easement in airspace which is vacated shall be terminated automatically; (d) membership in the Association with the full voting rights appurtenant thereto; and (e) other appurtenances as may be provided by this Declaration. 3.2 Usage of Shared Components. In any case in which a Shared Component benefits more than one Unit Owner, the right of each such benefited Unit Owner to the use and benefit thereof shall be on a non-exclusive, equal priority basis, such that no benefited Unit 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 and/or Parking Units and/or with the use, operation, maintenance, repair and replacement of the Retail and/or Parking Units and its or their facilities. 3.3 Unit Boundaries. (a) Boundaries of the Parking Unit. The upper, lower and perimetrical boundaries of the Parking Unit shall be as graphically depicted on Exhibit "2" attached hereto, as supplemented by the following: (i) Upper Boundaries. The upper boundary of the Parking Unit shall be the horizontal plane parallel to the higher of, (i) elevation 87.17' N.G.V.D or (ii) the horizontal plane parallel to the highest point of any structural improvements located on the Condominium Property. (ii) Lower Boundaries. The lower boundary of the Parking Unit shall be the horizontal plane of the unfinished upper surface of the floor of the Unit to the extent that that floor falls within the perimetrical boundaries at the lowest level. In a multi-story Unit where upper levels have a greater floor area than exists on the lower level, the lower boundary shall, on each applicable upper level, include that portion of the floor of the upper level of the applicable Unit for which there is no corresponding floor on the lower level of the applicable Unit directly below the floor of such top floor). (iii) Perimetrical Boundaries. The perimetrical boundaries of the Parking Unit shall, be as applicable: (a) the vertical planes formed by the interior undecorated unfinished surfaces of all structural walls bounding the Unit extended to their planar intersections with each other and with the upper and lower boundaries; or (b) where there is no wall and the Unit consists in whole or in part of unenclosed space, the vertical plane lying on the survey line defining the Unit as shown on Exhibit 7 hereof, as amended or supplemented, perpendicular to the upper and lower boundaries. -8- Item # 11 Attachment number 8 Page 9 of 77 (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 Retail Unit shall, be as applicable: (a) the vertical planes formed by the interior undecorated unfinished surfaces of all structural walls bounding the Unit extended to their planar intersections with each other and with the upper and lower boundaries; or (b) where there is no wall and the Unit consists in whole or in part of unenclosed space, the vertical plane lying on the survey line defining the Unit as shown on Exhibit 7 hereof, as amended or supplemented, perpendicular to the upper and lower boundaries. (iv) Apertures: Proviso. Where there are apertures in any boundary, including, but not limited to, windows, doors, bay windows and skylights, all of same shall be deemed part of the applicable Retail Unit. Any Life Safety Systems located within a Retail Unit shall be deemed part of the applicable Retail Unit. Notwithstanding the foregoing, any and all structural components of the Building, regardless of where located, shall be deemed to be Common Elements. 3.4 Advertising Wall Space. By the recordation of this Declaration in the Public Records of the County, the Declarant shall be deemed to have assigned to the owners from time to time of the Retail Units, as a Limited Common Element appurtenant thereto, the right use of the surface of the exterior walls of the ground level of the Building (including the decorative building eyebrow located -9- Item # 11 Attachment number 8 Page 10 of 77 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. 3.5 Easements. The following easements are hereby created (in addition to any easements created under the Act and any easements affecting the Condominium Property and recorded in the Public Records of the County): (a) Support. Each Unit, and the Improvements, shall have an easement of horizontal, vertical, and lateral support and of necessity, including a non-exclusive easement in and to all structural members, columns, beams, foundations, load bearing walls, and other structural components located in or constituting part of the Common Elements or another Owners Unit for the support of such 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 -10- Item # 11 Attachment number 8 Page 11 of 77 compliance with all applicable building codes and regulations and applicable permits and/or to any Shared Component; and (c) the right of each Unit Owner to implement such safety measures as it deems necessary and appropriate. In particular, and without limiting the foregoing: (i) The Retail Unit Owners and its or their Permittees shall be entitled to a perpetual easement over and upon the Parking Unit, including all Shared Component driveway areas, ramps and other vehicular accessways into, out of and through the Parking Unit for purposes of pedestrian and vehicular ingress and egress to and from the entrance to the parking garage contained therein, the Retail Unit Parking Area, the Shared Components and/or the Common Elements, as the case may be (provided, however that the easement shall not be deemed to authorize use of any parking spaces and/or garage offices contained within the Parking Unit). Without limiting the generality of the foregoing, it is understood and agreed that access will be required through the floors of the Building containing the Parking Unit in order to access the Retail Unit Parking Area. Access thereover is expressly permitted hereby, although the easement reserved herein shall not afford any party the right to park within any parking space contained within the Parking Unit. Parking within the Parking Unit will be within the sole discretion and control of the Parking Unit Owner, and absent an express agreement for such parking rights, no such parking rights shall exist. Additionally, a perpetual easement is hereby reserved in favor of the Association, and its designees, over and upon the Parking Unit and the Retail Unit Parking Area for purposes of performing such maintenance, repairs, and other services as are permitted or required to be performed by the Association, including, but not limited to, maintenance, repair, replacement and alteration of Common Elements, safety and maintenance activities, and enforcement of rules and regulations. (ii) The Retail Unit Owners and its or their Permittees shall be entitled to, and are hereby granted, the right and easement for pedestrian ingress and egress over, across and upon the Parking Unit and the Shared Components as reasonably necessary or convenient to provide access to and from the Parking Unit and/or the Retail Unit Parking Area and the Pass-Thru and/or sidewalks within or adjoining the Condominium Property. Such rights and easements shall include, without limitation, access to and use of the Stairways, the walkways, passageways, corridors, and elevators leading through or from the Parking Unit and/or the Retail Unit Parking Area, subject to such safety provisions, as may be adopted by the Parking Unit Owner with respect to the Parking Unit or the applicable Retail Unit Owner, with respect to the Retail Unit Parking Area, pursuant to the terms of this Declaration. (iii) Each Unit Owner and its Permittees shall be entitled to, and are hereby granted, the right and easement for: pedestrian traffic over, through and across such portions of the Common Elements and/or Shared Components as from time to time may be paved and/or designed for such purposes. Item # 11 Attachment number 8 Page 12 of 77 (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 -12- Item # 11 Attachment number 8 Page 13 of 77 of such additional spaces and areas around such Utility Facilities as shall be reasonably necessary to serve the purposes of such easements. The foregoing rights and easements are expressly made applicable to any utilities or other services which are or may become necessary in the future for the proper operation of such Owners Unit, so long as the use of such easements does not interfere with the use and occupancy of another Owner's Unit or the Common Elements (it being stipulated that the easements for Utility Facilities existing as of the date hereof do not interfere with the use and occupancy of any Units or Common Elements). The Association, on its behalf and on behalf of the Unit Owners, has the right to grant such additional easements for the installation and use of Utility Facilities, and for the relocation of any existing Utility Facilities in any portion of the Property, the Improvements and the Common Elements, as the Association shall deem necessary for the proper operation and maintenance of the Condominium Property, or any portion thereof, or for the general health or welfare of the Unit Owners, or for the purpose of carrying out any provisions of this Declaration; provided, however, that such easements or the relocation of existing easements: (i) will only be performed after thirty (30) days' prior written notice to the Unit Owners, (i) will not unreasonably interfere or diminish the service being supplied to the Unit(s) (excepting reasonable, temporary interference when relocation is necessary), (i) will only be performed during nonbusiness hours, unless performance during business hours cannot be reasonably avoided (it being intended that "business hours" will be different as applied to each Unit, according to when normal use is highest for such Unit), (i) will, to the extent practicable, be located in the public roads and in the Common Elements, and (i) will otherwise comply with the requirements of this Declaration. Any Unit Owner that requires the creation or relocation of such easement(s) shall bear the expense of such creation and/or relocation. Any Unit Owner objecting to the creation or relocation of such easements may pursue Dispute Resolution, in accordance with Section 13.2 hereof. (f) Emergency Easements. Each Unit Owner and its Permittees shall be entitled to, and are hereby granted, the right and easement over, through and across the Condominium Property for emergency ingress and egress to and from any other portion of the Condominium Property, in the event of fire or other emergency. A non-exclusive easement for ingress and egress is hereby granted to all police, sheriff, fire protection, ambulance, and other similar emergency agencies or persons now or hereafter servicing the Condominium Property, to enter upon all streets, driveways, sidewalks, walkways and other public access ways located within the Condominium Property in performance of their duties. Each Unit Owner shall be entitled to, and is hereby granted, a non-exclusive easement for ingress and egress to any Unit or Common Element in the event of any emergency for the purpose of protecting such Owner's Unit, any Utility Facilities serving such Unit, any Common Elements benefiting such Owner, and any persons in, on, or about such Unit or Common Elements and for making emergency repairs that are necessary to prevent damage to the Common Elements or to a Unit, if reasonably practicable, the affected Unit Owner shall be warned of the impending entry, as early as possible. (g) Easements for Equipment, Etc. Each Owner shall have, and is hereby granted, a non-exclusive right and easement for the existence, use, enjoyment, and (to the extent expressly permitted by this Declaration) the installation, repair, replacement and relocation of equipment, appliances, machinery, mechanical, or other systems or areas (if -13- Item # 11 Attachment number 8 Page 14 of 77 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 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 -14- Item # 11 Attachment number 8 Page 15 of 77 Responsible Unit Owner and its contractors are insured against liability arising as a result of such work in reasonable and customary amounts in light of the nature and extent of the work to be performed. In the event of any dispute regarding the amounts or coverages of insurance that may be required under the preceding sentence, the same shall be resolved in accordance with Section 13.2 hereof. (k) Easement for Mortgagees. Any holder of a mortgage, its officers, agents, and employees, shall be entitled to, and are hereby granted, a blanket, perpetual and non-exclusive easement to enter the Condominium Property or any part thereof to inspect the condition and repair of the Common Elements or any Units so encumbered by a mortgage held by it. This right shall be exercised only during reasonable daylight hours, and then, whenever practicable, only after advance notice to and with permission of the Board of Directors (as to Common Elements) and the Unit Owners whose Units are to be inspected. Except in the event of emergencies, the rights accompanying the easements provided for in this paragraph shall be exercised only during reasonable hours and then, whenever practicable, only after advance notice to and with permission of the Unit Owner(s) directly affected thereby. (1) Easement for Services. Each governmental agency and utility service provider shall be entitled to, and is hereby granted, a blanket, perpetual and non-exclusive easement in, upon, over, across and through the Common Elements and public spaces and easement areas within the Units, for the purpose of maintaining, repairing, servicing and replacing all Utility Facilities and other items in the nature of Utility Facilities that are owned by such agency or utility provider, which such governmental agency or utility service provider is responsible for maintaining, repairing, servicing, or replacing. Except in the event of emergencies, the rights accompanying the easements provided for in this paragraph shall be exercised only during reasonable hours and then, whenever practicable, only after advance notice to and with permission of the Unit Owner(s) directly affected thereby. (m) Additional Easements. If at any time after the date hereof additional emergency exits are required by Law or by insurance underwriting requirements generally applicable to commercial and/or retail projects, or (A) any additional easements for access to or use, repair, and replacement of Utility Facilities now or hereafter existing are reasonably necessary for the use and operation of any one or more Units, or (B) any additional easements are required to complete any Restoration required under this Declaration, or (C) any other additional easements are necessary or desirable to effectuate the purposes of this Declaration, each Unit Owner shall, within a reasonable time after written request therefor by any other Unit Owner, grant such easement; provided (i) no Unit Owner granting any such easement is required to construct improvements, expend any monies, or incur other material liabilities in order to provide such easement (other than costs paid solely by the Unit Owners for whose benefit such easement is to be granted), (ii) such easement will not materially increase expenses, or create any material additional expenses, for any portion of the Condominium Property (unless 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 -15- Item # 11 Attachment number 8 Page 16 of 77 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 Owners 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 attomey-in-fact to execute any instrument on their behalf as may hereafter be required or deemed necessary for the purpose of creating such easement. (p) 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. -16- Item # 11 Attachment number 8 Page 17 of 77 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 50% Retail Unit A 35% Retail Unit B 15% 5.2 Allocated Interest in Shared Components. The Allocated Interest of each Unit in each of the Shared Components is as set forth on Exhibit "3" attached hereto. In the event of a material change in the usage of a Shared Component or in the size of a Unit, improvements within a Unit, or the reconstitution of two or more Units, the Unit Owners affected thereby shall make a good faith effort to equitably reallocate the Unit Owners' Allocated Interests in said Shared Components. If the affected Unit Owners are unable to agree on an equitable reallocation of any Allocated Interest within 30 days after the occurrence of the material change, the provisions of Section 13.2 hereof shall govern. 5.3 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 -17- Item # 11 Attachment number 8 Page 18 of 77 dispute resolution shall have no further recourse or right to seek to avoid the act or omission resulting from the failure of the Unit Owners to unanimously agree. If the Board or the arbitrator (as applicable) determines, however, that there is a risk of a material adverse effect on the Condominium Property or on the Unit, then it shall proceed to determine the most effective means of avoiding the act or omission, in accordance with Section 13.2, as if a dispute existed between the Owners as to the most effective means. 6. Assessments; Special Assessments, Charges; Special Charges 6.1 Assessments and Charges (a) Determination of Common Expenses and Fixing of Assessments. The Board of Directors shall prepare a condominium budget, in accordance with the Act, on a calendar year basis. The budget shall be distributed to the Unit Owners on or before October 31 preceding the year for which the budget is effective. Based upon the budget and consistent with each Unit Owner's Percentage Share, the Board shall determine each Unit's Assessment and Charges (to the extent possible). The Board of Directors shall advise each Unit Owner promptly in writing of the amount of its Assessment and Charges, which amounts shall be payable monthly to the Association. (b) Determination of Charges for expenses of Shared Components. The Charges and expenses with respect to each Shared Component shall not be included in the Budget or the Assessments but shall be allocated between the Unit Owners in proportion to each Unit Owner's Allocated Interest in the applicable Shared Component and shall be funded in accordance with Section 9.1(c) below. The Responsible Unit Owner for a particular Shared Component shall prepare an Allocated Expense budget for said Shared Component on a calendar year basis to be delivered to the Association for distribution to the Unit Owners with the budget described in Section 6.1(a). Payment of Allocated Expenses shall not be monthly but, instead, shall only be required of the benefited Unit Owners in sufficient time to enable the Responsible Unit Owners to pay Allocated Expenses as they come due, but in no event less than ten (10) days prior to the payment date provided in applicable invoices. Payment of Allocated Expenses shall be tendered to the Responsible Unit Owner or to a third party management or maintenance company selected by the Responsible Unit Owner. (c) Determination of Charges. A Unit Owner's share of Charges will vary with the nature of the Charges. Charges related to Common Expenses will be allocated according to each Unit's Percentage Shares. Charges related to Shared Components will be allocated according to each Unit's Allocated Interest in any Shared Components. All other Charges shall be allocated as otherwise provided in this Declaration. To the greatest extent possible, Charges shall be included in the budget described in Section 6.1(a) above. (d) Payment of Assessments, Charges and Allocated Expenses. (i) Declarant, for each Unit owned by it, hereby covenants and agrees and each Unit Owner, by acceptance of a deed for its Unit, whether or not it shall be so expressed in such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree to pay all Assessments, Allocated Expenses and Charges (which Charges shall include but not be limited to -18- Item # 11 Attachment number 8 Page 19 of 77 Charges arising out of Allocated Expenses) for the operation of the Association and Shared Components and for the maintenance, management, operation and insurance of the Condominium Property imposed on it under this Declaration, including such reasonable reserves as the Association may deem necessary as to Common Elements (or the Responsible Unit Owner may deem necessary as to any Shared Components), capital improvements assessments or charges, maintenance assessments or charges, and all other Charges and Assessments herein referred to or lawfully imposed by the Association or by a Responsible Unit Owner, all such Assessments, Allocated Expenses and Charges to be fixed, established and collected from time to time as herein provided. All such Charges, Allocated Expenses and Assessments, together with interest thereon and costs of collection thereof, shall be a charge on the Land and shall be a continuing lien upon the Unit against which each such Assessment, Allocated Expense or Charge is made. Each such Assessment and Charge, together with such interest thereon and costs of collection thereof, shall also be the personal obligation of the person or entity who is the Owner of such Unit at the time when the Assessment or Charges fall due and all subsequent Owners of said Unit until paid. (ii) The foregoing provisions are independent covenants running with the Land between and among the Association, each Responsible Unit Owner and each Unit Owner, and the power to impose and enforce all Charges and Assessments, as provided herein, is in addition to and not pursuant to or in reliance on the Act. (e) Revisions to Budget: Enforcement. Any budget adopted by the Association may be revised from time to time by the Association to cover actual expenses. The Association shall assess each Unit its share of the Common Expenses and Allocated Expenses (if the same are not paid in accordance with Section 6.1(b)), and shall enforce collection of same so that at all times the solvency of the Association, pursuant to generally accepted accounting principles, consistently applied, is maintained and assured. 6.2 Special Assessments and Special Charges. Declarant, for each Unit owned by it, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree: (a) to pay the Association any Special Assessments imposed by the Board and any Special Charges imposed by a Responsible Unit Owner against any or all of the Units, pursuant to this Declaration, including, but not limited to a Special Assessment or Special Charge for: reconstruction (Section 6.6), failure to pay a charge or cost attributable to a Shared Component (Section 6.1(b)), correction of a violation (Section 6.7), repayment for utility services (Section 6.8), failure to pay its share of insurance expenses to secure liability insurance or to secure liability insurance with the required coverage (Section 10), failure to correct a deviation from the plans and specifications (Section 9), failure to maintain a Unit or a Shared Component (Section 9.2), as well as the cost of emergency repairs, and such other matters as are provided under this Declaration, in accordance with the provisions of this Declaration; (b) that such Special Assessment and Special Charges shall be a charge on the Land and a continuing lien on the affected Unit, (c) that such Special Assessment and Special Charges together with such interest thereon and costs of collection thereof shall also be an obligation of the Owner of the Unit at the time when the Assessment or Charge falls due and an obligation of all subsequent Owners of said -19- Item # 11 Attachment number 8 Page 20 of 77 Unit until paid, and (d) that such Special Assessment and/or Special Charge may be enforced in the manner set forth in this Declaration. The foregoing provisions are independent covenants running with the Land between and among the Association, each Responsible Unit Owner and each Unit Owner, and the power to impose and enforce Special Assessments and Special Charges, as provided herein, is in addition to and not pursuant to or in reliance on the Act. 6.3 Lien for Assessment and Special Assessment. The Association and a Responsible Unit Owner shall have a lien against a Unit upon recording a claim of lien in the Public Records of the County, for any unpaid Assessment(s), Charges, Special Assessment(s) and/or Special Charges against the Owner thereof, and for interest accruing thereon, which lien shall also secure reasonable attorneys fees incurred by the Association or the collecting Unit Owner incident to the collection of such Assessment or Charge, or enforcement of such lien, whether or not legal proceedings are initiated, and if initiated, on the trial court and appellate levels. Such claims of lien, if made by the Association, may be signed and verified by the President and a Vice President or Secretary of the Association. Upon full payment, the party making payment shall be entitled to a recordable satisfaction of lien, to be prepared and recorded at its expense. All such liens shall be subordinate to the lien of mortgages recorded prior to the date of recording the claim of lien, and all such liens may be foreclosed by suit brought in the name of the Association or the Responsible Unit Owner (as applicable) in like manner as a foreclosure of a mortgage on real property. Subject to the provisions of Section 19.11, the Association and a Responsible Unit Owner may, at its option, sue to recover a money judgment for unpaid Assessments or Charges without thereby waiving the lien securing the same. 6.4 Interest: Application of Payments. Assessments, Charges, Special Assessments and Special Charges, and installments on such Assessments, Charges, Special Assessments and Special Charges paid on or before ten (10) days after the date when due shall not bear interest, but all sums not paid on or before ten (10) days after the date when due shall bear interest at the Prime Rate, plus three (3%) percent, but in no event higher than the highest rate permitted by law. All payments on account shall be first applied to interest, and then to the Assessment, Charge, Special Assessment or Special Charge payment first due. 6.5 Commencement. The Assessments, Charges, Special Assessments and Special Charges provided for in this Section 6 shall be due and payable on the date or dates fixed by the Board of Directors of the Association (as to Assessments and Special Assessments), as provided in the resolution authorizing the applicable Assessment or Charge, or by the Responsible Unit Owner (as to Charges and Special Charges). 6.6 Reconstruction Assessment. Unless the decision has been made pursuant to Section 15 to terminate the Condominium, upon the occurrence of a Casualty or a Taking, the Board shall impose a Special Charge on the Owner of a damaged Unit if at any time it is determined by the Board that: the deductible contributed by said Unit Owner in accordance with Section 10 and the proceeds of insurance are not sufficient to pay (a) the estimated or actual costs of Restoration of the Unit; or (b) if said Unit Owner has elected not to Restore its Unit, (i) the estimated or actual costs of the Restoration of any Common Elements or Shared Components which said Unit Owner is required to Restore; and/or (ii) any costs associated with the requirements of Sections 11.2 and 11.3. Such Special Charge shall (A) be a charge on the Land and a continuing lien on the affected Unit, (B) be an obligation of the Owner of the Unit at the time when the Charge falls due and an obligation of all subsequent Owners of said Unit until paid, and (C) may be enforced in any manner -20- Item # 11 Attachment number 8 Page 21 of 77 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 so attributed. Any Utility Facilities which serve the Shared Components shall be treated as part of the Shared Components and allocated among the Units according to the Allocated Interests. Any Utility Facilities which serve the Common Elements shall be treated as part of the Common Expenses and allocated among the Units according to the Percentage Shares. 6.9 Certificate of Unpaid Assessments. Within fifteen (15) days after written request by a Unit Owner or mortgagee of a Unit, the Association or Responsible Unit Owner, as applicable, shall provide a certificate stating all Assessments, Charges and other moneys owed to the Association and/or Responsible Unit Owner by the Unit Owner with respect to his or her Unit. 6.10 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. 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. -21- Item # 11 Attachment number 8 Page 22 of 77 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 matter where: (i) such insurance is not required hereby; or (ii) the Association could not obtain such insurance at reasonable costs or upon reasonable terms. 8. Use Restrictions. In order to provide for congenial use of the Condominium and Association Property and for the protection of the values of the Units, the use of the Condominium Property shall be restricted to and shall be in accordance with the following provisions: 8.1 Use. The Units may be used only in accordance with applicable zoning requirements and for any lawful purpose by the Owners thereof and their guests, tenants and invitees. Except only to the extent that same may be unlawful or otherwise be deemed a nuisance, the Unit Owners shall be permitted to (i) operate from the Units twenty four (24) hours each day, seven (7) days each week, and fifty two (52) weeks each year, (ii) accept deliveries to, and deliver merchandise, or other items necessary for the operations of the Units, as applicable, from the Units at any and all times, (iii) operate the Units, and conduct business from the Units in a manner consistent with other similar establishments in Florida, and in a manner that parking, lighting, signage, and convenient access by invitees/customers is consistent with that of such other similar establishments. Further, it is understood and agreed that any such operations are expressly permitted hereunder and shall in no event be deemed a nuisance hereunder. The foregoing two (2) sentences shall be interpreted liberally to allow the Unit Owners broad discretion in operating from the Units and may not be amended (nor may any other provision of the Declaration, the Articles, By-Laws or any rules be amended which may limit or derogate the broad rights herein granted) without the affirmative vote of eighty percent (80%) of all of the voting interests in the Condominium. 8.2 Use of Common Elements and Association 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. -22- Item # 11 Attachment number 8 Page 23 of 77 8.3 Nuisance. No noxious or offensive activities shall be carried on, in or upon the Common Elements or in any Unit nor shall anything be done therein either willfully or negligently which may be or become a nuisance to the other Unit Owners or occupants in the Condominium Property. No unlawful use shall be made of any Unit; and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereover shall be observed, including but not limited to compliance with the provisions of the Environmental Cleanup Responsibility Act of the State of Florida, if applicable, or any other law dealing with usage of such space. No nuisance shall be allowed upon or within the Condominium Property, nor any use or practice which interferes with the peaceful possession and proper use of the Condominium Property. 8.4 Alteration. Except as otherwise permitted herein, nothing shall be done to any Unit or on or in the Common Elements which will impair the structural integrity of the Clearwater Beach Project. Each Unit Owner shall use best efforts to avoid disruption to the business and activities of other Unit Owners from any and all work relating to any additions, alterations or improvements that a Unit Owner shall elect to make or perform from time to time. 8.5 Floor Load. No Unit Owner shall place more weight on any floor or on the roof of any part of its Unit or the Clearwater Beach Project than the same was designed to hold. 8.6 Environmental Matters. Nothing shall be done in any Unit or on or in the Common Elements which will result in a violation of any applicable rules or regulations issued by the Department of Environmental Protection or any other governmental agency having jurisdiction thereof. If it is determined that a clean up and/or deposit of monies and/or remedial action is required by any governmental entity having jurisdiction thereof, then, (a) in the event such is required for any Unit, that Unit Owner shall take all necessary steps, and shall be financially responsible therefor, which shall include the cost of said cleanup and/or deposit of monies and/or remedial action; (b) in the event such is required for any Common Element, the Association shall take all necessary steps, and shall be financially responsible therefor, which shall include the cost of said cleanup and/or deposit of monies and/or remedial action; and/or (c) in the event such is required for any Shared Component, the Responsible Unit Owner shall take all necessary steps, and the Unit Owners benefiting from such Shared Component shall be financially responsible therefor in proportion to the Allocated Interest for the applicable Shared Component, which shall include the cost of said cleanup and/or deposit of monies and/or remedial action. 8.7 Trash Disposal. No portion of the Common Elements or other portions of the Condominium Property shall be used or maintained for the dumping of rubbish or debris. Trash, garbage or other waste shall be disposed of in the trash containers designated or approved by the Association or otherwise disposed of in accordance with all Laws. 8.8 No Improper Uses. No unlawful use shall be made of the Condominium or Association Property or any part thereof, and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereover shall be observed. Violations of laws, orders, rules, regulations or requirements of any governmental agency having jurisdiction thereover, relating to any portion of the Condominium and/or Association Property, shall be corrected by, and at the sole expense of, the party obligated to maintain or repair such portion of the Condominium Property, as elsewhere herein set forth. Notwithstanding the foregoing and any provisions of this Declaration, the Articles of Incorporation or By-Laws, the Association shall not be liable to any person(s) for its failure to enforce the provisions of this Section 8.8. Nothing shall be done or kept in any Unit or in or upon -23- Item # 11 Attachment number 8 Page 24 of 77 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 speck 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 component, if the Responsible Unit Owner fails to act on an emergency basis and -24- Item # 11 Attachment number 8 Page 25 of 77 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 -25- Item # 11 Attachment number 8 Page 26 of 77 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 91(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 Unit(s) and Common Elements and without unreasonably disturbing the rights of the Unit Owner(s) and their Permittees; and (c) after not less than twenty-four (24) hours prior written notice to the affected Unit Owner, except in the case of emergency where only such notice as is reasonable under the circumstances shall be required. In the event there is a question as to whether the standards set forth here have been satisfied, a decision pursuant to the Dispute Resolution Plan described in Section 13.2 shall be determinative. 9.2 Replacement. In the event that a portion of a Common Elements or a Shared Component must be replaced as a result of ordinary wear and tear, the same party who has the responsibility to maintain and repair such items shall have the responsibility to replace same and the costs thereof shall be allocated among the Unit Owners in proportion to each Unit Owner's Percentage Share, if the replacement is of all or a portion of a Common Element, or in proportion to each Unit Owner's applicable Allocated Interest, if the replacement is of all or a portion of a Shared Component. 9.3 Alteration and Improvement. (a) Interior of the Unit. Each Unit Owner has the right to change the interior design and/or arrangement of the Unit it owns provided, however, that the following requirements are satisfied in each instance: such change is in compliance with all Laws. Unless all other Unit Owners consent in writing, such change shall not: (1) compromise an easement for support relied upon by any other Unit or a Common Element, (2) impair the provision of Utility Services to any other Unit or a Common Element, (3) unreasonably interfere with the permitted use or operation of any other Unit by its Unit Owner or its Permittees or of the Common Elements, (4) change the aesthetic character of Clearwater Beach Project in a material, adverse manner; (5) have an adverse effect on the structural integrity of any other Unit or a Common Element; or (6) be inconsistent with the overall first class standards of the Clearwater Beach Project. (b) Exterior and Landscaping of the Units and Common Elements. Except for the alterations and improvements to the landscaping and exteriors of the Improvements made in accordance with Section 11, there shall be no other alterations or improvements to the -26- Item # 11 Attachment number 8 Page 27 of 77 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; (i) Current as-built plans and specifications, to the extent in the Unit Owner's possession; and (ii) Copies of all maintenance and testing records for the past three (3) years, to the extent in the Unit Owner's possession. In addition, each Unit Owner shall promptly provide to the Association, upon request, access to copies of current as-built plans and specifications for its respective Unit, to the extent in the Unit Owner's possession. 9.5 Incidental Damage. Any damage caused to a Unit or the Common Elements by reason of any maintenance and repair performed in accordance with the provisions of this Section 9 or elsewhere in this Declaration shall be promptly repaired to a condition substantially the same or superior to the condition existing prior to the damage by the party causing such damage, at said party's expense. 9.6 Inspection and Testing. (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 property 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 property 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 property maintained and repaired, the Association shall so advise the Responsible Unit Owner. In the event a question arises as to whether any portion of the Condominium Property is or is not being properly maintained, a decision pursuant to the Dispute Resolution Plan described in Section 13.2 shall be determinative. (b) In the event of an emergency, the Responsible Unit Owner shall immediately perform required maintenance or repair, and should such Unit Owner fail to do so, then the -27- Item # 11 Attachment number 8 Page 28 of 77 Association may proceed to maintain or repair the portion of the Condominium Property so affected and make such necessary and reasonable repairs, and to collect any monies advanced by the Association for these purposes through a Special Assessment against the applicable Unit. (c) In the event there is no emergency, a Unit Owner will be allowed twenty (20) days to perform required maintenance or repair after receipt of notice thereof from the Association or from the other Unit Owner(s), and if at the end of such time period, more time is required, and the Unit Owner has been diligently performing required maintenance or repair, then such additional time as may be necessary to complete such maintenance or repair shall be allowed, provided the Unit Owner continues to diligently pursue same. The Association may proceed to maintain the Condominium Property and to make such repairs, and to collect any monies advanced by the Association for these purposes through a Special Assessment against the applicable Unit in the event that: (i) the Unit Owner fails to commence correction of such matter or (ii) the Unit Owner fails to diligently complete the same. 10. Insurance. 10.1 Property Insurance. (a) Coverages. The Responsible Insurance Party shall obtain and keep in full force and effect at all times property damage insurance, excluding only: (a) fixtures, installations or additions comprising any part of the Building within the unfinished interior surfaces of the perimeter walls, floors and ceilings of the individual Units initially installed or replacements thereof of like kind and quality, (b) all personal property and trade fixtures located within any Unit, which shall be separately insured by each Unit Owner, and (c) all moveable personal property belonging to tenants and subtenants and such portion of tenant finish improvements, if any, which a tenant is responsible to insure under its lease. The property damage insurance shall be on a standard all-risk form including coverage for sprinkler leakage, water damage, and other special perils (or on such other form as the Responsible Insurance Party, as applicable, selects with the approval of the other Unit Owners and all Mortgagees). All property damage insurance shall, at a minimum, meet the following requirements: (i) Such insurance shall provide full replacement cost coverage, with an agreed value endorsement. The limit of coverage thereunder shall be established by insurance appraisals acceptable to the Association and the applicable insurer, which the Responsible Insurance Party, as applicable, shall cause to be performed from time to time as the Responsible Insurance Party, as applicable, shall direct. In addition, the Responsible Insurance Party shall cause the insurance appraiser to determine the replacement costs of the Common Elements and/or the Shared Components, as applicable, but such allocation shall not limit the amount of insurance proceeds to which any Unit Owner shall be entitled to receive on account of any insured loss, in the event such Unit Owner shall be entitled to proceeds in excess of replacement cost. In the event that a Unit Owner believes that the amount of insurance coverage being maintained is inadequate, the such Owner shall have the right to obtain, at its -28- Item # 11 Attachment number 8 Page 29 of 77 own cost and expense, a separate appraisal and to submit same to the other Unit Owners. Upon receipt, the other Unit Owners shall have the option to either (i) accept the findings of the appraisal, in which event, it shall obtain such adjusted insurance coverage to meet the findings of the appraisal, or (ii) advise the requesting Owner that it does not accept the findings of the appraisal, in which event, if the requesting Unit Owner does not, within fifteen (15) days following the other Unit Owners' advice that the appraisal is not accepted, mutually agree upon the amounts of insurance coverage to be maintained, the matter shall be submitted to the Dispute Resolution Plan. (ii) Such insurance shall include demolition, increased cost of construction, and building ordinance coverages, boiler and machinery coverage, flood insurance and an inflation-guard endorsement. Such insurance shall (i) name each Unit Owner as a named insured, (ii) designate the Association as an additional named insured and (iii) require that the insurance proceeds be disbursed to the Unit Owners or such Unit Owners' Mortgagees, as applicable, in accordance with the Unit's applicable Allocated Interests with respect to the Shared Components, and with each Unit's Percentage Shares with respect to the Common Elements, and as provided in Section 11.4(a), or with respect to the Insurance Trustee, as provided in Section 11.4(b), as the case may be, after the determination to reconstruct or repair has been made pursuant to Section 11.2 and 11.3. (iv) Such insurance shall contain a standard mortgagee endorsement naming each mortgagee. (v) The deductible under any such insurance shall not be greater than that which is commercially reasonable, without the approval of all Unit Owners and their Mortgagees. (vi) In any case in which any material alterations or improvements are being constructed upon or within any Unit or any Common Element, there shall be added to such insurance during the construction period, builder's risk coverages (the additional cost of which shall be bome solely by the Unit Owner or Owners of the Units in which such alterations or improvements are being constructed, and if there is more than one such Unit Owner, or a Shared Component is involved, to be allocated between such Unit Owners based on the costs of the applicable alterations and improvements). (vii) The premium for the property damage insurance maintained by the Responsible Insurance Party with respect to the Units, the Common Elements and/or the Shared Components, as required by this Section 10.1 (including boiler and machinery and any special perils coverages or endorsements), shall be allocated among the Unit Owners in proportion to each Unit Owner's Allocated Interests, with respect to the Shared Components, and each Units Percentage Shares, with respect to the Common Elements. Any reasonable costs incurred by the Responsible Insurance Party in connection with the maintaining of the insurance -29- Item # 11 Attachment number 8 Page 30 of 77 required to be maintained by it pursuant to this Section 10.1, including, without limitation, costs of any appraisals, shall be part of the Common Expenses or Allocated Expenses, a applicable. In the event that a Unit Owner does not timely pay its allocable portion thereof, the Responsible Insurance Party shall have a lien against the such Unit or Units and such other rights granted a "Responsible Unit Owner" in Sections 6.1(d) and 6.3 of the Declaration and may enforce such lien as provided therein. (viii) Each Unit Owner may also obtain business income coverage for the benefit of such Unit Owner, in such amounts as may be determined by each Unit Owner. Each Unit Owner shall pay the premium attributable thereto. At the election of a Unit Owner, said Unit Owner's Mortgagee(s) (if any) for which such business income insurance is maintained shall be designated as the party entitled to collect the proceeds of such business income coverage. The proceeds of any such coverage shall be separately payable to each Unit Owner or its Mortgagee(s) (as provided immediately above) and not to the Insurance Trustee or the Association. (b) Obligation to Purchase. Declarant, for each Unit owned by it, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree to purchase such insurance policies containing the coverages described in this Section 10.1 and to pay all insurance related expenses and costs imposed on it under this Declaration. The requirement to purchase such insurance policies and to pay all such costs and expenses (i) shall be a charge on the Land and a continuing lien on the affected Unit; (ii) shall be an obligation of the Owner of the Unit at the time such costs and expenses are due and an obligation of all subsequent Owners of said Unit until paid; and (iii) may be enforced in any manner provided in this Declaration. The provisions of Section 10.1 constitute an independent covenant running with the Land between the Unit Owners, and the obligation to purchase property damage insurance covering the Shared Components, as set forth herein, is not pursuant to the Condominium Act. (c) Copies. Copies of all insurance certificates, policies and their endorsements required under this Section 10.1 shall be deposited with the Association and the Insurance Trustee (when and if appointed). Such copies shall be available for inspection by Unit Owners or their authorized representatives at reasonable times at the offices of the Association. 10.2 Liability Insurance. (a) Coverages. The Association hereby charges, directs and requires that each Unit Owner obtain and keep in full force and effect at all times commercial general liability insurance covering (x) public liability for bodily injury and property damage, and (y) claims of one or more insured parties against other insured parties, including a contractual liability endorsement covering the indemnity set forth in Section 19.11 below. Such liability insurance shall cover as additional insureds the Board of Directors of the Association, the Association, the officers of the Association, all mortgagees (to the extent requested by such mortgagees by written notice to the Association), the other Unit Owners and their -30- Item # 11 Attachment number 8 Page 31 of 77 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 Owner's mortgagee(s) (if requested by Association) as additional insureds. Association, each Unit Owner, and each Unit such mortgagees by written notice to the 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 cant' any other type of insurance it considers appropriate in amounts it deems appropriate, to insure the interests of the Association and the Unit Owners; provided, that the liability of the carriers issuing insurance required by this Declaration shall not be affected or diminished by reason of any such additional insurance. Without limiting the foregoing, each Unit Owner shall be entitled to purchase such additional coverages and endorsements to any property damage and liability insurance policies as such Unit Owner may desire so long as it does not adversely affect the required coverage, and provided that all additional costs of such coverage shall be paid by said Unit Owner. (c) All insurance required to be maintained under this Declaration shall provide that no act or omission by any insured will void the policy or be a condition to recovery under the policy as against any mortgagee or other named insured or additional insured party. In addition, all insurance providing coverage for damage, destruction, or other loss from Casualty and/or for loss of business income (whether required or permitted hereunder) shall provide that the insurer furnishing such coverage waives its right of subrogation under the -31- Item # 11 Attachment number 8 Page 32 of 77 policy against the Association, each Unit Owner, each mortgagee, each tenant, each manager or operator of a Retail Unit, each property manager or operator of any Unit, any other person claiming by, through, or under any Unit Owner, and any director, agent, or employee of any the foregoing. (d) If at the time of a loss under the policy, there is other insurance in the name of an insured party covering the same risk covered by the policy, the policy of the Unit Owner of the building incurring such loss shall be primary as to any similar coverages maintained by any other Unit Owner. Such losses shall include, without limitation, liabilities arising from events or occurrences upon such Unit or any Common Elements or easement areas for which the owner of such Unit is responsible under Sections 11.2 and 11.3, or for which a Unit Owner is required to indemnify the other Unit Owners under Section 19.11. (e) The Association may adopt and establish written nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment, provided that the Association may not adopt policies or procedures which contradict or contravene the terms of this Declaration. Insurance policies and insurance coverage shall be reviewed at least annually by the Association. (f) All insurance obtained by the Association under Sections 10.4 and 10.5 hereof or by any Unit Owner hereunder shall, except as expressly provided otherwise elsewhere in this Declaration, contain deductibles no greater than the maximum deductible amounts established in writing by the Responsible Insurance Party with respect to each type of insurance required under this Declaration. To the extent that (1) Restoration is required under the provisions of this Declaration, or an insured party is required to indemnify any other person under the provisions of this Declaration, and (2) the amount the insurer would otherwise pay with respect to such Restoration or indemnified matter is reduced by the amount of a deductible, then (i) in the case of deductibles under policies maintained by the Association or by a Unit Owner where the Association has agreed in this Declaration to be liable for the premiums payable thereunder, the Unit Owners shall be liable for the amount of such deductibles in the same proportions as the Unit Owners share in the cost of such insurance, and (ii) in the case of deductibles under policies maintained by a Responsible Unit Owner, each Unit Owner shall be liable for a share of the amount of such deductible equal to its Allocated Interest. (g) Notwithstanding anything contained herein to the contrary, all insurance carriers shall conform to the minimum financial rating, asset size, and other reasonable requirements imposed by Mortgagees; provided, that in no event shall any insurance required hereunder be maintained with an insurer having a rating by Best Insurance Reports that is lower than "A+/X111" (or if such rating is no longer published or is modified, then such rating or qualifications as shall be equivalent to the aforesaid rating as determined as of the date of this Declaration), without the approval of all Mortgagees. 10.4 Fidelity Insurance. The Association or its managing agent shall also obtain and maintain fidelity coverage against dishonesty of directors, officers, employees of the Association, the managing agent and any other person handling funds of the Association, against destruction or disappearance of money or securities and forgery. Said policy shall also contain endorsements covering any persons who serve the Association without compensation. Such fidelity bond shall -32- Item # 11 Attachment number 8 Page 33 of 77 name the Association as obligee and such coverage shall not be less in the aggregate than two months' current Assessments plus reserves, as calculated from the current Budget of the Association. The Association shall require of any managing agent that such managing agent maintain fidelity insurance coverage or a bond in an amount not less than Fifty Thousand Dollars ($50,000). 10.5 D & 0 Liability Insurance. The Association shall also maintain liability insurance for the benefit of the directors and officers of the Association, with coverages commonly carried under so-called "D & 0" policies by not-for-profit corporations, in amounts reasonably approved by the Board from time to time (but in no event less than $1,000,000 per occurrence), the cost of which shall be a Common Expense. 10.6 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 -33- Item # 11 Attachment number 8 Page 34 of 77 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 not to restore its Unit, said Unit Owner shall be obligated to diligently pursue and promptly complete either of the following: (i) construction within its Unit of a new building and related structures, improvements, fixtures and equipment as such Unit Owner may desire to construct, for such uses as are permitted by and in accordance with all Laws, provided the same are consistent with the provisions of this Declaration and substantially preserve the easements reserved herein for the benefit of the other Unit Owners and the Association; or (ii) demolition of all damaged structures and improvements that are not being Restored, removal of all debris, the permanent closure of openings to the Clearwater Beach Project that are created by such demolition and removal, and the exterior finishing of all unrestored areas, so as to (i) preserve the security and the architectural integrity of the remaining portions of the Clearwater Beach Project, (ii) provide an exterior finish that is architecturally consistent with the other portions of the Clearwater Beach Project, (iii) comply with all Laws, (iv) place all unrestored areas in a sightly condition, and (v) comply with the requirements of Section 11.2(a) above. Notwithstanding anything herein contained to the contrary, in the event of any Casualty affecting more than one Unit or any of the Shared Components or Common Elements (which shall be deemed to be all Casualties, other than one which only affects the interior of a Retail Unit and does not otherwise affect the structural integrity of the Building or the Shared Components or Common Elements), any and all such Restoration shall be -34- Item # 11 Attachment number 8 Page 35 of 77 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 for construction, including, without limitation, draw requests certified by the applicable Unit Owner, general contractor, and project architect (including certification from the architect of the stage of completion under each contract and subcontract), retainage of funds in accordance with prevailing construction practices, progressive lien waivers submitted by the contractor and subcontractors, continuing evidence of the availability of sufficient funds to complete the restoration, and satisfactory date-downs of title at the time of each disbursement. -35- Item # 11 Attachment number 8 Page 36 of 77 (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 attomey-in-fact, of either (i) a title insurance company or (ii) a bank having trust powers or (iii) a trust company located in Pinellas County having a minimum ratio of total capital to total assets of at least seven percent (7%) and an aggregate capital and unimpaired surplus of at least Fifty Million Dollars ($50,000,000.00), to be selected by the Responsible Insurance Party, as "Insurance Trustee," provided, that no Insurance Trustee shall be designated whose accounts are not government insured or guaranteed. Notwithstanding the foregoing, to the extent required by any institutional lender holding a mortgage encumbering the Parking Unit or the Retail A Unit, said holder shall be deemed an acceptable Insurance Trustee. (ii) Each of the Unit Owners irrevocably constitutes and appoints the Responsible Insurance Party, applicable, its true and lawful attorney, in its name, place, and stead, for the purpose of dealing with the Condominium Property in connection with such Casualty as set forth in this subsection 11.4(b). Title to each Unit is declared and expressly made subject to the terms and conditions hereof, and acceptance by any grantee of a deed or other instrument of conveyance from the Owner or from any subsequent Unit Owner shall constitute appointment of the attomey-in-fact by such grantee as herein provided. The Responsible Insurance Party, shall, in undertaking the duties and exercising the powers and authority granted hereunder and in clauses 11.4(b)(iii) and 11.4(b)(iv) below, have an obligation to act in a non-discriminatory manner to further the interests of the Unit Owners. In that regard, the Responsible Insurance Party shall, prior to accepting any insurance settlement, consult with the Unit Owners regarding the terms of the proposed settlement, provided, however, that the consent or approval of the Unit Owners shall not be required unless the proposed amount of insurance proceeds to be received shall be inadequate to effect Restoration of the Units. (iii) Subject to the provisions of clause 11.4(b)(ii) above, the Responsible Insurance Party shall be (and is hereby) empowered and authorized to settle and adjust the applicable insurance claims on account of a Casualty covered by this subsection 11.4(b) and the Unit Owners shall collect and apply the insurance proceeds on account thereof, as provided in this Section 11. (iv) As attomey-in-fact, the Responsible Insurance Party, by its duly authorized officers or agents, shall, subject to the provisions of clause 11.4(b)(ii) above, have full and complete authorization, right, and power to make, execute, and deliver any contract or other instrument with respect to the interest of a Unit Owner which is necessary and appropriate to exercise the powers herein granted. -36- Item # 11 Attachment number 8 Page 37 of 77 (v) The proceeds of any insurance collected shall be available to the Responsible Insurance Party for (i) the purpose of Restoration of the Units, Shared Components and Common Elements (or any other reconstruction permitted under this Declaration), as applicable, or (ii) for distribution to the Unit Owners where either (A) any Unit Owner is not obligated to Restore, and elects not to Restore, its Unit in accordance with this Section 11 or (B) the Unit Owners elect to terminate the Condominium in accordance with the provisions of Section 15, in which event the insurance proceeds shall be distributed to the Unit Owners in accordance with Section 11.6 (provided, however, that no proceeds shall be distributed until all costs of any Restoration to be undertaken has been completed and paid). Each Unit Owner hereby directs the Insurance Trustee to release, in accordance with the provisions of this Section 11, to the applicable Responsible Insurance Party, such portions of the insurance proceeds as are necessary to fully Restore the Units and/or such Common Elements and/or Shared Components in accordance with the terms of this Declaration. (vi) Declarant, as the Owner of each Unit, and each subsequent Owner of a Unit, by its acceptance of a deed or other form of conveyance of its Unit, covenants and agrees, upon the occurrence of a Casualty governed by this subsection 11.4(b), to pay over to the Insurance Trustee all insurance proceeds covering such property losses immediately upon receipt thereof. To the extent of any portion of insurance proceeds received (whether by the Parking Unit Owner or a Retail Unit Owner) on account of another Unit Owner, said portion shall be placed with the Insurance Trustee, to be held and disbursed only in accordance with the terms hereof. To the extent that a Unit Owner, in settling an insurance claim, is to receive proceeds with respect to more than one Unit, the insurance company, in paying such proceeds, shall allocate same between the Units. (vii) The Insurance Trustee shall not be liable for payment of premiums nor the failure to collect any insurance proceeds. (viii) All expenses of the Insurance Trustee shall be paid by the Unit Owners in proportion to their Allocated Interests. (ix) The duty of the Insurance Trustee shall be to receive such proceeds as are paid to the Insurance Trustee and to hold the proceeds in trust, pursuant to the provisions of this Declaration, for the purpose and application elsewhere stated in this Declaration and for the benefit of the Association and/or the Unit Owner(s) and, when applicable, the Unit Owner's Mortgagees. (x) Within sixty (60) days following settlement of the insurance claim and receipt of insurance proceeds, the Responsible Insurance Party shall deliver to the Unit Owners an anticipated date for commencement of Restoration and an anticipated date for completion of Restoration of the Units (as same may be extended by Force Majeure, the "Anticipated Completion Date"). In establishing these dates, the Responsible Insurance Party shall act in a commercially reasonable manner and shall establish a Restoration plan that will allow for each Unit to be Restored as soon as reasonably possible (keeping in mind that one -37- Item # 11 Attachment number 8 Page 38 of 77 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 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 -38- Item # 11 Attachment number 8 Page 39 of 77 amount of insurance proceeds available will permit, such proceeds being allocated between the Owners whose Units were affected by such Casualty, on a pan passu basis in proportion to the total costs that would be required to effect a complete Restoration of the affected Units (and in such case the cost of Restoration shall be determined by averaging three estimates of such costs from three (3) qualified professional insurance claims adjusters selected by the Association, which the Association shall obtain at the request, and at the expense, of such Unit Owners within thirty (30) days after receipt of a written request therefor from such Unit Owners); provided, that such proceeds may be allocated in such other priority and/or manner as the Owners and all Mortgagees shall otherwise agree. Nothing herein shall be construed to permit the partial Restoration of a Unit. The allocation of insurance proceeds under Section 11.5(c)(i) above shall not mitigate a Unit Owner's obligation to fund any insufficiencies, in accordance with this Section 11.5(c) and to fully and completely Restore its Unit, once Restoration has commenced. 11.6 Excess Insurance Proceeds. If the amount of available insurance proceeds shall exceed the cost of any Restoration that a Unit Owner undertakes in accordance with this Section (such as, but not limited to, where a Unit Owner elects not to fully Restore its Unit or to construct new improvements in lieu thereof), the excess shall be returned to the affected Unit Owners in accordance with their Allocated Interests, subject to the following: to the extent required by any mortgage on any Unit, such excess proceeds shall be paid to the appropriate mortgagee(s), as their interests may appear, for application to the appropriate mortgage indebtedness and the excess, if any, shall be allocated among the Unit Owners whose Units were affected by the applicable Casualty, up to the amount of the insured loss sustained by each such Unit Owner as determined under the provisions of the applicable insurance policies, if adequate insurance proceeds are not otherwise available pursuant to such Unit Owner(s)' insurance policies; provided, that (i) losses to Common Elements shall be allocated among the Unit Owners in proportion to their respective Percentage Shares and, (ii) losses to Shared Components Owner shall be allocated between the Unit Owners in proportion to their Allocated Interests. 11.7 Remedies. In the event a Unit Owner or Unit Owners elect or are obligated to Restore all or any part of the Condominium Property, or to Restore the minimum of Condominium Property, as required by Sections 11.2 and 11.3, but fail(s) to do so pursuant to the requirements of this Section 11 within a commercially reasonable time following the Casualty (or as to a Casualty governed by subsection 11.4, within sixty (60) days following the Anticipated Completion Date), the other Unit Owners and/or the Association shall have the right and power to effect the Restoration of the damaged Unit(s) and any Common Elements to the minimum extent required under Sections 11.2 and 11.3. The other Unit Owners and/or Association, as applicable, shall not exercise its remedies unless the Unit Owners performing the Restoration have failed to provide the other Unit Owners and/or Association with adequate assurances that such Owner will commence or complete rebuilding, as applicable, as required by this Section 11 within thirty (30) days after notice from the other Unit Owners and/or Association. The other Unit Owners and/or the Association shall have access to all insurance proceeds as provided in this Section 11, in order to exercise its remedies. The other Unit Owners and/or Association shall be entitled to the appointment of a receiver or other court authorization in order to exercise its remedies. Any insurance proceeds remaining after the exercise of any remedies hereunder shall be distributed to the Unit Owner who failed to comply -39- Item # 11 Attachment number 8 Page 40 of 77 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 cant' insurance in such types and amounts as the Responsible Insurance Party may determine in its reasonable discretion and shall provide the Insurance Trustee and the Association with certificates of insurance evidencing such insurance and naming the Responsible Insurance Party , the Association and the other Unit Owners as additional insureds. Any and all funds deposited with the Insurance Trustee shall be subject to such limitations on disbursement as may be reasonably required by the Insurance Trustee and which meet the requirements customarily imposed by prudent institutional mortgage lenders for disbursements of funds for construction, including, without limitation, draw requests certified by the applicable Unit Owner, general contractor, and project architect (including certification from the architect of the stage of completion under each contract and subcontract), retainage of funds in accordance with prevailing construction practices, progressive lien waivers submitted by the contractor and subcontractors, continuing evidence of the availability of sufficient funds to complete the restoration, and satisfactory date-downs of title at the time of each disbursement. The provisions of this Section 11.8 may be enforced by any Unit Owner or the Association. 12. Condemnation. 12.1 In General. If any portion of the Condominium Property shall be affected by any Taking, each Unit Owner affected thereby and the Association shall be entitled to notice of such Taking and to participate in the proceedings incident thereto. Any awards made in connection with such proceedings shall, to the extent possible, specifically allocate the awards between the affected Units and the affected Common Elements, and shall be collected, applied, and/or distributed in accordance with the following provisions, subject to the contrary provisions of any final order (after conclusion of any appeals or expiration of any appeal periods) entered in the applicable judicial proceedings with respect to such Taking. 12.2 Total Taking. If a Unit is acquired in its entirety by a Taking, or if part of a Unit is acquired by a Taking leaving the Unit Owner with a remnant which cannot practically or lawfully be Restored to a -40- Item # 11 Attachment number 8 Page 41 of 77 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 govem such termination. (b) Where the Unit Owners do not so elect to terminate the condominium form of ownership, the award payable for the Taking of each Unit and the award payable for the Taking of any Common Elements shall (i) first, be applied to the Restoration of Common Elements and Shared Components if and to the extent necessary to permit the Restoration and use of the Units that are being Restored in whole or in part notwithstanding the occurrence of such Taking, in accordance with the provisions of Section 11.2, (ii) second, be applied to any remnant of the Unit affected by such Taking so as to cause such remnant to comply with the provisions of Section 11.2, and (iii) third, be paid to the Unit Owner(s) of the affected Unit(s), with the award for the Taking of a Unit being payable entirely to the Owner of such Unit and the award for the Taking of Common Elements being payable to the Unit Owners in proportion to their Percentage Shares; provided, that to the extent required by any mortgage on any Unit, any proceeds under Clause (iii) shall be paid to the appropriate mortgagee(s), as their interests may appear, for application to the appropriate mortgage indebtedness and the excess, if any, shall be paid to the appropriate Unit Owners. Awards for the Taking of a Shared Component shall be payable to the Unit Owners in accordance with their respective Allocated Interests. (c) If, by reason of a Taking, a Unit ceases to be a part of the Condominium Property and/or ceases to be used in a manner consistent with this Declaration, then, upon acquisition of such Unit by the condemning authority, the entire Percentage Share, and all obligations for contribution to Common Expenses and other costs and expenses allocated to such Unit, shall be automatically reallocated to the remaining Unit(s) in proportion to the respective Percentage Share before the taking, and the Association shall promptly prepare, execute, and record an amendment to the Declaration reflecting such reallocations. Any remnant of a Unit remaining within the Condominium Property after a part of a Unit is taken under this subsection shall thereafter be a Common Element. 12.3 Partial Taking. If part of a Unit is acquired by eminent domain, other than under the circumstances contemplated by Section 12.2, this Section 12.3 will control. (a) The provisions of Section 11 shall be applicable in substantially the same manner as if loss resulted from a Casualty rather than a Taking and the proceeds were insurance proceeds rather than awards arising from such Taking; provided, that in the case of a Taking, Restoration that a Unit Owner would be obligated to perform under Section 11 shall be limited in the case of a Taking by the fact that the Unit Owner or Unit Owners may no longer have title to or possession of portions of Units or Common Elements, and in such case the Unit Owners' obligations shall be limited to effecting such Restoration as shall be feasible in light of the effects of such Taking. -41- Item # 11 Attachment number 8 Page 42 of 77 (b) Upon acquisition of a portion of any Unit by the condemning authority, (1) the Unit Owners' Percentage Shares (and their respective obligations for Common Expenses) shall be adjusted on the basis of the new floor area of the affected Unit(s) in accordance with the provisions of Section 5, and (2) the Unit Owner's Allocated Interests shall be prorata adjusted in accordance with the provisions of Section 5. 12.4 Limitation on Distribution After Taking. In no event shall the aggregate amount distributed to the affected Unit Owner(s) exceed the total amount of any award paid by the condemning authority with respect to any Taking. 13. Enforcement. 13.1 Compliance and Default. Declarant, during the time period it owns any of the Units, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree that each Unit Owner shall be governed by and shall comply with the terms of the Declaration and the rules and regulations adopted pursuant to the Declaration, as the Declaration and said rules and regulations may be amended from time to time, as provided in this Declaration. In the event a Unit Owner or its Permittee fails: (i) to maintain a Unit or fails to cause such Unit to be maintained in accordance with the requirements of this Declaration; or (ii) fails to observe and perform all the covenants and provisions of this Declaration and the rules and regulations, in the manner required by this Declaration, then, in addition to all other rights and remedies established or permitted by this Declaration, and subject to notice and reasonable cure rights established by the Board, (i) the Association shall have the right, subject to the provisions of Section 19.6 below hereof, to proceed in a court of equity to require performance and/or compliance, to impound any applicable funds, to sue in a court of law for damages, to assess the Unit Owner and the Unit for sums necessary to do whatever work is required to put the Unit Owner or Unit in compliance and to collect such Special Assessment and have a lien therefor as elsewhere provided. In addition, the Association shall have the right, for itself and its employees and agents, to enter the Unit and perform the necessary work to enforce compliance with the above provisions (by force, if necessary), without having committed a trespass or incurred any other liability to the Unit Owner; and/or (ii) subject to the provisions of Section 19.6, any Unit Owner may bring an action at law or in equity for damages, injunctive relief, or otherwise, in order to require performance and/or compliance with the Declaration and the rules and regulations (all as amended from time to time, in accordance with the terms of this Declaration), and to collect for its losses and damages allowed under this Declaration and to have a lien therefor as provided in Section 6.1(d)(i) hereof, and/or to sue under the provisions of this Declaration or under the Act. 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: -42- Item # 11 Attachment number 8 Page 43 of 77 (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 bome equally by both Unit Owners. The representative(s) shall be discharged by the Directors as soon as a decision has been reached. (b) If the matter in dispute can be reduced to monetary terms, and such monetary terms are $500,000.00 or greater, the dispute shall be promptly submitted by the Directors for binding arbitration in accordance with the Florida Arbitration Code (Florida Statutes Chapter 682) for decision by a panel of not less than three arbitrators. (c) If the matter in dispute cannot be reduced to monetary terms, the Directors may mutually agree to use one individual or the three-representative panel process described in subparagraph (a) above; provided, however, if such agreement as to the choice of one individual or a three-member panel cannot be mutually reached by the Directors within three (3) business days, then the matter in dispute shall be submitted to formal arbitration under the Florida Arbitration Code as described in subparagraph (b) above. (d) The individual, representatives, or arbitrators selected in accordance with this Section 13.2 shall be professionals or experts in the substantive area in which the dispute has arisen. For example; if the dispute arises from an engineering issue, the Directors shall select the appropriate professional engineer(s) (i.e. civil, structural, mechanical, or electrical); if the matter involves business management, building operating expenses, etc., the Directors shall select a past officer(s) of the local building owners and managers association. Such examples are used by way of illustration and not by way of limitation concerning the type of professional and/or expert to be selected by the Directors to resolve disputes in accordance with this Section. (e) Declarant, during the time period it owns its Unit, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree to be bound by the decision of such representative(s) or arbitration -43- Item # 11 Attachment number 8 Page 44 of 77 once the appropriate resolution procedure is instituted, and each Unit owner shall immediately comply with decisions of such representative(s) or arbitration. (f) Notwithstanding anything in this Section 13.2 to the contrary, the dispute resolution procedures set forth herein are not intended to resolve breach of covenants, provisions, and obligations of the parties under this Declaration, but are intended to provide a mechanism for the resolution of differences when good faith attempts by the Unit Owners or the Directors of the Association to resolve disputes have resulted in impasse. 13.3 Costs and Attorneys' Fees. In any proceeding arising under this Declaration, the prevailing party shall be entitled to recover the costs of the proceeding, as well as reasonable attorneys' fees before and at trial, on appeal, in bankruptcy and in post judgment collection, as may be awarded by the court. 13.4 No Waiver of Rights. The failure of the Association or any Unit Owner to enforce any covenant, restriction or other provision of the Condominium Act, this Declaration and/or the rules and regulations shall not constitute a waiver of the right to do so thereafter. 14. Amendments. 14.1 Amendment. Except as elsewhere provided herein, amendments may be effected as follows: (a) By The Association. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which a proposed amendment is to be considered. A resolution for the adoption of a proposed amendment may be proposed either by a majority of the Board of Directors of the Association or by not less than one- third (1/3) of the Unit Owners. Except as elsewhere provided, approvals must be by an affirmative vote representing four fifths (4/5ths) of the voting interests of all Unit Owners. No amendment shall be effective unless each mortgagee shall join in the execution of such amendment. (b) Material Amendments. Unless otherwise provided specifically to the contrary in this Declaration, no amendment shall change the configuration or size of any Unit in any material fashion, materially alter or modify the appurtenances to any Unit, change the voting requirements (as set forth in Section 5.3 hereof) or change the percentage by which the Owner of a Unit shares the Common Expenses and owns the Common Elements and Common Surplus (any such change or alteration being a "Material Amendment"), unless the record Owner(s) thereof shall join in the execution of the amendment and the amendment is otherwise approved by an affirmative vote representing four fifths (4/5ths) of the voting interests of all Unit Owners. The acquisition of property by the Association, material alterations or substantial additions to such property or the Common Elements by the Association or to the Shared Components by a Responsible Unit Owner, if in accordance with the provisions of this Declaration, shall not be deemed to constitute a material alteration or modification of the appurtenances of the Units, and accordingly, shall not constitute a Material Amendment. (c) By or Affecting the Declarant. Notwithstanding anything herein contained to the contrary, during the time the Declarant has the right to elect a majority of the Board of Directors of the Association, this Declaration, or its exhibits, may be amended by the Declarant alone, -44- Item # 11 Attachment number 8 Page 45 of 77 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 property recorded in the public records of the County. No provision of this Declaration shall be revised or amended by reference to its title or number only. Proposals to amend existing provisions of this Declaration shall contain the full text of the provision to be amended; new words shall be inserted in the text underlined; and words to be deleted shall be lined through with hyphens. However, if the proposed change is so extensive that this procedure would hinder, rather than assist, the understanding of the proposed amendment, it is not necessary to use underlining and hyphens as indicators of words added or deleted, but, instead, a notation must be inserted immediately preceding the proposed amendment in substantially the following language: "Substantial rewording of Declaration. See provision ... for present text." Nonmaterial errors or omissions in the amendment process shall not invalidate an otherwise 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 (iii) such time as withdrawal of the Condominium Property from the provisions of the Act is authorized by a vote of Owners owning representing all of the total Voting Interests and all mortgagees of all Units. In the event such withdrawal is authorized as aforesaid, the Condominium Property shall be subject to an action for partition by any Unit Owner, mortgagee or lienor as if owned in common in which event the net proceeds of the partition sale shall be divided among all Unit Owners in proportion to their respective interests in the Common Elements, provided, however, that no payment shall be made to a Unit Owner until there has first been paid off, out of his share of such net proceeds, all mortgages and liens on his Unit in the order of their priority. The termination of the Condominium, as aforesaid, shall be evidenced by a certificate of the Association executed by its President and Secretary, certifying as to the basis of the termination and said certificate shall be recorded among the public records of the County. 16. Additional Rights of Mortgagees and Others. 16.1 Availability of Association Documents. The Association shall have current and updated copies of the following available for inspection by Mortgagees during normal business hours or under other reasonable circumstances as determined by the Board: this Declaration; (c) the Articles; (d) the By-Laws; (e) the rules and regulations of the Association; and (f) the books, records and financial statements of the Association. -45- Item # 11 Attachment number 8 Page 46 of 77 16.2 Notices. Any holder, insurer or guarantor of a mortgage on a Unit shall have, if first requested in writing from the Association, the right to timely written notice of (a) any condemnation or casualty loss affecting a material portion of the Condominium and/or Association Property or the affected mortgaged Unit; (b) any notice of default given by the Association to the Owner of the affected mortgaged Unit; (c) any notice of default given by a Responsible Unit Owner to the Owner of the affected mortgaged Unit; (d) any notice of default given to a Responsible Unit Owner of an affected mortgaged Unit; (e) a sixty (60) day delinquency in the payment of the Assessments on a mortgaged Unit; (f) the occurrence of a lapse, cancellation or material modification of any insurance policy maintained by the Association; (g) any proposed action which requires the consent of a specified number of mortgage holders. 17. Covenant Running With the Land. All provisions of this Declaration, the Articles, By-Laws and applicable rules and regulations of the Association, shall, to the extent applicable and unless otherwise expressly herein or therein provided to the contrary, be perpetual and be construed to be covenants running with the Land and with every part thereof and interest therein, and all of the provisions hereof and thereof shall be binding upon and inure to the benefit of the Declarant and subsequent owner(s) of the Land or any part thereof, or interest therein, and their respective heirs, personal representatives, successors and assigns, but the same are not intended to create nor shall they be construed as creating any rights in or for the benefit of the general public. All present and future Unit Owners, tenants and occupants of Units shall be subject to and shall comply with the provisions of this Declaration, the Articles, By-Laws and applicable rules and regulations, all as they may be amended from time to time. The acceptance of a deed or conveyance, or the entering into of a lease, or the entering into occupancy of any Unit, shall constitute an adoption and ratification of the provisions of this Declaration, and the Articles, By-Laws and applicable rules and regulations of the Association, all as they may be amended from time to time, including, but not limited to, a ratification of any appointments of attomeys-in-fact contained herein. 18. Disclaimer of Warranties. Declarant hereby disclaims any and all express or implied warranties as to design, construction, sound transmission, furnishing and equipping of the Condominium Property, except only those set forth in section 718.203 of the Act, to the extent applicable and to the extent that same have not expired by their terms. As to such warranties which cannot be disclaimed, and to other claims, if any, which can be made as to the aforesaid matters, all incidental and consequential damages arising therefrom are hereby disclaimed. All unit owners, by virtue of acceptance of title to their respective units (whether from the Declarant or another party) shall be deemed to have automatically waived all of the aforesaid disclaimed warranties and incidental and consequential damages. -46- Item # 11 Attachment number 8 Page 47 of 77 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 aggrieved party with respect to any breach of a Unit Owner of any obligations set forth in this Declaration shall be limited to obtaining specific performance, injunctive relief or other equitable relief, filing and foreclosing upon the liens described in this Declaration, and/or the procurement of a judgment for damages against a Unit Owner provided that the judgment is satisfied solely by foreclosure of such Owner's Unit in accordance with applicable law. 19.7 Severabili . The invalidity in whole or in part of any covenant or restriction, or any section, subsection, sentence, paragraph, clause, phrase or word, or other provision of this Declaration, the Exhibits annexed hereto, or applicable rules and regulations adopted pursuant to such documents, as the same may be amended from time to time, shall not affect the validity of the remaining portions thereof which shall remain in full force and effect. -47- Item # 11 Attachment number 8 Page 48 of 77 19.8 Estoppel Certificates. Each Unit Owner or the Association, as the case may be, shall, from time to time, within ten (10) days after receipt of written request from any other Unit Owner or Mortgagee execute, acknowledge and deliver to such other Unit Owner, Mortgagee, or their designee a certificate ("Estoppel Certificate") stating to the best of their knowledge, without inquiry: (a) That the terms and provisions of this Declaration are unmodified and are in full force and effect, or, if modified, identifying any such modifications; (b) Whether there is any existing default hereunder by any other Unit Owners or the Association and, if so, specifying the nature and extent thereof, (c) Whether there are any sums which the Unit Owner executing such Estoppel Certificate is entitled to receive or demand from any of the other Unit Owners, and if there is any such sum, specifying the nature and amount thereof and method of computation; (d) In the case of the Association, confirmation of the current budget, and whether there are any outstanding, unpaid Assessments or Charges, or currently proposed Assessments or Charges; (e) Whether the Unit Owner or Association has performed or is performing work, the cost of which is chargeable in whole or in part to any of the other Unit Owners under the provisions hereof, but has not yet been charged to any such Unit Owner, and if there be any such work, specifying the nature and extent thereof, (f) The nature and extent of any set-offs, claims, counterclaims or defenses then being asserted, or otherwise known by a Unit Owner or the Association against the enforcement of any other Unit Owner's obligations hereunder, (g) Whether any Unit Owner has requested that a matter be submitted to arbitration and the nature of any arbitration proceeding or finding made within ninety (90) days preceding the date of the Estoppel Certificate; (h) Such other matters as may be reasonably requested. 19.9 Ratification. Each Unit Owner, by reason of having acquired ownership (whether by purchase, gift, operation of law or otherwise), and each occupant of a Unit, by reason of his occupancy, shall be deemed to have acknowledged and agreed that all of the provisions of this Declaration, and the Articles and By-Laws of the Association, and applicable rules and regulations, are fair and reasonable in all material respects. 19.10 Gender; Plurality. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be deemed to include all or no genders. 19.11 Indemnification; Waivers of Claims. (a) Indemnification. To the extent not covered by the insurance required under Section 13 above, each Unit Owner, by taking title to a Unit, is hereby deemed to covenant to indemnify, defend, and hold harmless the Association, each other Unit Owner, its Mortgagee(s), and their respective partners, officers, directors, shareholders, members, managers, employees, and agents (each an "Indemnified Party") from and against any and all claims, actions, damages, liabilities and demands asserted by third persons (other than Indemnified Parties), including those for loss of life, personal injury and property damage, occasioned by or arising directly or indirectly, out of or in connection with the use, occupancy, operation or ownership (as applicable) by such Unit Owner of its Unit, Common Elements, or easement areas, or the failure of such Unit Owner to perform any obligation with respect to those Common Elements or easement areas which such Owner is required to operate, maintain, and/or repair under the terms of this Declaration, except with respect to Laws pertaining to environmental matters. An Indemnified Party shall provide the indemnifying Unit Owner (the "Indemnifying Owner") with prompt notice of any claim or other matter for which the Indemnified Party may seek indemnity under this -48- Item # 11 Attachment number 8 Page 49 of 77 paragraph; provided, however, the failure to provide such notice shall relieve the Indemnifying Owner of its indemnity obligations only to the extent that the Indemnifying Owner is damaged or prejudiced by such failure. The Indemnifying Owner shall defend the Indemnified Party with respect to any such claim at the Indemnifying Owner's expense, with attorneys selected by the Indemnifying Owner who may also represent the Indemnifying Owner. If the Indemnified Parry 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. -49- Item # 11 Attachment number 8 Page 50 of 77 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 120-. Witnessed by: Name: L.O.M., Inc., a Florida corporation By: Name: Title: Name: STATE OF ) SS: COUNTY OF ) (Corporate Seal) 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: My Commission Expires: Notary Public, State of Florida Commission No.: -50- (Notarial Seal) Item # 11 Attachment number 8 Page 51 of 77 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 1200-. Witnessed by: SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit Name: By: 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: My Commission Expires: Notary Public, State of Florida Commission No.: (Notarial Seal) -51- Item # 11 Attachment number 8 Page 52 of 77 EXHIBIT 1 LOM PROPERTY PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82'1 5'44"E a distance of 35.00 feet to the Point of Beginning. Item # 11 Attachment number 8 Page 53 of 77 EXHIBIT "2" Survey Plot Plans To be supplemented -53- Item # 11 Attachment number 8 Page 54 of 77 EXHIBIT "3" Allocated Interests The Allocated Interest shall vary depending on the nature of the Allocated Expense. In the event of any dispute as to the proper categorization of the Allocated Expense, either party shall have the right to implement the Dispute Resolution procedures in accordance with Section 13.2 of this Declaration. The Allocated Interests are as follows: Allocated Expense: Allocated Interest Allocated Interest of Allocated Interest of of Retail Unit A Retail Unit B Parkin Unit Insurance 35% 15% 50% Landscaping: Off-site Perimeter 75% 25% 0% sidewalks and landscaping 0% Central Pass-thru 75% 25% Cleaning: Exterior and Marble Floor 45% 45% 10% Trash Removal & Compactor 45% 45% 10% Recycling 50% 50% 0% Window Cleaning 70% 30% 0% Maintenance and Repairs: Responsible for Responsible for 100% Responsible for 100% Fire/Emergency Systems 100% of its own of it's own separate of its own separate Radios and Repeater separate systems - systems systems Stairways HVAC Other Maintenance and Repairs Utilities and Services: Responsible for Responsible for 100% Responsible for 100% Electricity 100% of it's own of it's own separate of it's own separate Water and Sewer separate systems systems systems Alarm Monitoring Extermination Drainage (and injection wells) -54- Item # 11 Attachment number 8 Page 55 of 77 Roof/Water Resistant Membranes 1/7th shared 1/7th shared between 6/7th between the Retail the Retail Units in Units in accordance accordance with their with their respective respective percentages of percentages of ownership of the ownership of the Common Elements Common Elements Common Parking Facilities (drives, 1/7"h shared 1/7"h shared between 617th ramps, access control systems) between the Retail the Retail Units in Units in accordance accordance with their with their respective respective percentages of percentages of ownership of the ownership of the Common Elements Common Elements Life Safety Systems Responsible for Responsible for 100% Responsible for 100% 100% of its own of it's own separate of its own separate separate systems systems systems Exterior Lighting 35% 15% 50% -55- Item # 11 Attachment number 8 Page 56 of 77 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 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 1 st and terminating December 31 st of each year. 1.2 Seal. The seal of the Association shall bear the name of the corporation, the word "Florida", the words "Corporation Not for Profit", and the year of incorporation. 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)0), 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. Item # 11 Attachment number 8 Page 57 of 77 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 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 members 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. By-Laws -2- Item # 11 Attachment number 8 Page 58 of 77 (b) Voting Member. If a Unit is owned by one person, that person's right to vote shall be established by the roster of members. If a Unit is owned by more than one person, those persons (including husbands and wives) shall decide among themselves as to who shall cast the vote of the Unit. In the event that those persons cannot so decide, no vote shall be cast. A person casting a vote for a Unit shall be presumed to have the authority to do so unless the President or the Board of Directors is otherwise notified. If a Unit is owned by a corporation, partnership, limited liability company, trust or any other lawful entity, the person entitled to cast the vote for the Unit shall be designated by a certificate signed by persons having lawful authority to bind the corporation, partnership, limited liability company, trust or other lawful entity and filed with the Secretary of the Association. Such person need not be a Unit Owner. Those certificates shall be valid until revoked or until superseded by a subsequent certificate or until a change in the ownership of the Unit concerned. A certificate designating the person entitled to cast the vote for a Unit may be revoked by any record owner of an undivided interest in the Unit. If a certificate designating the person entitled to cast the vote for a Unit for which such certificate is required is not on file or has been revoked, the vote attributable to such Unit shall not be considered in determining whether a quorum is present, nor for any other purpose, and the total number of authorized votes in the Association shall be reduced accordingly until such certificate is filed. 3.7 Proxies. Votes to be cast at meetings of the Association membership may be cast in person or by proxy. Except as specifically provided herein, Unit Owners may not vote by general proxy, but may vote by limited proxies substantially conforming to the limited proxy form approved by the Division. No voting interest or consent right allocated to a Unit owned by the Association shall be exercised or considered for any purpose, whether for a quorum, an election, or otherwise. Limited proxies shall be permitted to the extent permitted by the Act. No proxy, limited or general, shall be used in the election of Board members. General proxies may be used for other matters for which limited proxies are not required and may also be used in voting for nonsubstantive changes to items for which a limited proxy is required and given. A proxy may be made by any person entitled to vote, but shall only be valid for the specific meeting for which originally given and any lawful adjourned meetings thereof. In no event shall any proxy be valid for a period longer than 90 days after the date of the first meeting for which it was given. Every proxy shall be revocable at any time at the pleasure of the person executing it. A proxy must be in writing, signed by the person authorized to cast the vote for the Unit (as above described), name the person(s) voting by proxy and the person authorized to vote for such person(s) and filed with the Secretary before the appointed time of the meeting, or before the time to which the meeting is adjourned. Each proxy shall contain the date, time and place of the meeting for which it is given and, if a limited proxy, shall set forth the matters on which the proxy holder may vote and the manner in which the vote is to be cast. There shall be no limitation on the number of proxies which may be held by any person (including a designee of the Declarant). If a proxy expressly provides, any proxy holder may appoint, in writing, a substitute to act in its place. If such provision is not made, substitution is not permitted. 3.8 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. By-Laws -3- Item # 11 Attachment number 8 Page 59 of 77 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; (1) 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 taken, dated and signed by approving members having the requisite number of votes and entitled to vote on such action, and delivered to the Secretary of the Association, or other authorized agent of the Association. Written consent shall not be effective to take the corporate action referred to in the consent unless signed by members having the requisite number of votes necessary to authorize the action within sixty (60) days of the date of the earliest dated consent and delivered to the Association as aforesaid. Any written consent may be revoked prior to the date the Association receives the required number of consents to authorize the proposed action. A revocation is not effective unless in writing and until received by the Secretary of the Association, or other By-Laws -4- Item # 11 Attachment number 8 Page 60 of 77 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 Adioumed Meetings. If, at any proposed meeting of the Board of Directors, there is less than a quorum present, the majority of those present may adjourn the meeting from time to time until a quorum is present, provided notice of such newly scheduled meeting is given as required hereunder. At any newly scheduled meeting, any business that might have been transacted at the meeting as originally called may be transacted as long as notice of such business to be conducted at the rescheduled meeting is given, if required (e.g., with respect to budget adoption). By-Laws -5- Item # 11 Attachment number 8 Page 61 of 77 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. 4.9 Presiding Officer. The presiding officer at the Directors' meetings shall be the President (who may, however, designate any other Unit Owner to preside). 4.10 Order of Business. If a quorum has been attained, the order of business at Directors' meetings shall be: (a) Proof of due notice of meeting; (b) Reading and disposal of any unapproved minutes; (c) Reports of officers and committees; (d) Election of officers; (e) Unfinished business; (f) New business; (g) Adjournment. Such order may be waived in whole or in part by direction of the presiding officer. 4.11 Minutes of Meetings. The minutes of all meetings of the Board of Directors shall be kept in a book available for inspection by Unit Owners, or their authorized representatives, and Board members at any reasonable time. The Association shall retain these minutes for a period of not less than seven years. 4.12 Committees. The Board may by resolution also create Committees and appoint persons to such Committees and vest in such Committees such powers and responsibilities as the Board shall deem advisable. 4.13 Proviso. Notwithstanding anything to the contrary contained in this Section 4.13 or otherwise, control of the Board shall be relinquished in accordance with the provisions of Section 718.301 of the Act (which is deemed incorporated herein). 4.14 Unanimity of Action. All actions of the Board of Directors, shall require unanimity of Directors. In the event, however, that the requisite unanimous vote is not obtained, the dissenting Director shall have the right to implement dispute resolution procedures in accordance with Section 13.2 of the Declaration. 5. 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. By-Laws -6- Item # 11 Attachment number 8 Page 62 of 77 6. Officers. 6.1 Executive Officers. The executive officers of the Association shall be a President, a Vice- President, a Treasurer and a Secretary, all of whom shall be elected by the Board of Directors and who may be peremptorily removed at any meeting by concurrence of a majority of all of the Directors. The Board of Directors from time to time shall elect such other officers and designate their powers and duties as the Board shall deem necessary or appropriate to manage the affairs of the Association. 6.2 President. The President shall be the chief executive officer of the Association. He shall have all of the powers and duties that are usually vested in the office of president of an association. 6.3 Vice-President. The Vice-President shall exercise the powers and perform the duties of the President in the absence or disability of the President. He also shall assist the President and exercise such other powers and perform such other duties as are incident to the office of the vice president of an association and as may be required by the Directors or the President. 6.4 Secretary. The Secretary shall keep the minutes of all proceedings of the Directors and the members. The Secretary shall attend to the giving of all notices to the members and Directors and other notices required by law. The Secretary shall have custody of the seal of the Association and shall affix it to instruments requiring the seal when duly signed. The Secretary shall keep the records of the Association, except those of the Treasurer, and shall perform all other duties incident to the office of the secretary of an association and as may be required by the Directors or the President. 6.5 Treasurer. The Treasurer shall have custody of all property of the Association, including funds, securities and evidences of indebtedness. The Treasurer shall keep books of account for the Association in accordance with good accounting practices, which, together with substantiating papers, shall be made available to the Board of Directors for examination at reasonable times. The Treasurer shall submit a treasurer's report to the Board of Directors at reasonable intervals and shall perform all other duties incident to the office of treasurer and as may be required by the Directors or the President. All monies and other valuable effects shall be kept for the benefit of the Association in such depositories as may be designated by a majority of the Board of Directors. 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. Compensation. Neither Directors nor officers shall receive compensation for their services as such, but this provision shall not preclude the Board of Directors from employing a Director or officer as an employee of the Association, nor preclude contracting with a Director or officer for the management of the Condominium or for any other service to be supplied by such Director or officer. Directors and officers shall be compensated for all actual and proper out of pocket expenses relating to the proper discharge of their respective duties. Resignations. Any Director or officer may resign his post at any time by written resignation, delivered to the President or Secretary, which shall take effect upon its receipt unless a later date is specified in the resignation, in which event the resignation shall be effective from such date unless withdrawn. The acceptance of a resignation shall not be required to make it effective. 10. Roster of Unit Owners. Each Unit Owner shall file with the Association a copy of the deed or other document showing his ownership. The Association shall maintain such information. The Association may By-Laws -7- Item # 11 Attachment number 8 Page 63 of 77 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), Roberts 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 Roberts Rules shall not be made so as to frustrate the will of the persons properly participating in said meeting. 12. Amendments. These By-Laws may be amended in the same manner required for amendment to the Declaration. 13. Rules and Regulations. The Board of Directors may, from time to time, adopt, and thereafter modify, amend or add to such rules and regulations regarding the Common Elements, except that subsequent to the date control of the Board is turned over by the Declarant to Unit Owners other than the Declarant, Owners of a majority of the Units may overrule the Board with respect to any such modifications, amendments or additions. Copies of such modified, amended or additional rules and regulations shall be furnished by the Board of Directors to each affected Unit Owner not less than thirty (30) days prior to the effective date thereof. At no time may any rule or regulation be adopted which would prejudice the rights reserved to the Declarant. 14. Electronic Transmission. For purposes hereof, "electronic transmission" means any form of communication, not directly involving the physical transmission or transfer of paper, which creates a record that may be retained, retrieved, and reviewed by a recipient thereof and which may be directly reproduced in a comprehensible and legible paper form by such recipient through an automated process. Examples of electronic transmission include, but are not limited to, telegrams, facsimile transmissions of images, and text that is sent via electronic mail between computers. Notwithstanding the provision for electronic transmission of notices by the Association, same may be only be sent to Unit Owners that consent to receipt of Association notices by electronic transmission (and only for long as such consent remains in effect). Further, in no event may electronic transmission be used as a method of giving notice of a meeting called in whole or in part regarding the recall of a Director. 15. Construction. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be deemed to include all genders. To the extent not otherwise provided for or addressed in these By-Laws, the By-Laws shall be deemed to include the provisions of Section 718.112(2)(a) through (o) of the Act. 16. Captions. The captions herein are inserted only as a matter of convenience and for reference, and in no way define or limit the scope of these By-Laws or the intent of any provision hereof. By-Laws -8- Item # 11 Attachment number 8 Page 64 of 77 The foregoing was adopted as the By-Laws of SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a corporation not for profit under the laws of the State of Florida, as of the day of ,20-. Approved: , President , Secretary By-Laws -9- Item # 11 Attachment number 8 Page 65 of 77 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 Pinellas County, Florida, and known as SURF STYLE CLEARWATER BEACH CONDOMINIUM (the "Condominium"). Item # 11 MIA 180,800,532v7 1-29-10 Attachment number 8 Page 66 of 77 ARTICLE 4 DEFINITIONS The terms used in these Articles shall have the same definitions and meanings as those set forth in the Declaration of the Condominium to be recorded in the Public Records of Pinellas County, Florida, unless herein provided to the contrary, or unless the context otherwise requires. ARTICLE 5 POWERS The powers of the Association shall include and be governed by the following: 5.1 General. The Association shall have all of the common-law and statutory powers of a corporation not for profit under the Laws of Florida, except as expressly limited or restricted by the terms of these Articles, the Declaration, the By-Laws or the Act. 5.2 Enumeration. The Association shall have all of the powers and duties set forth in the Act, except as limited by these Articles, the By-Laws and the Declaration (to the extent that they are not in conflict with the Act), and all of the powers and duties reasonably necessary to operate the Condominium pursuant to the Declaration and as more particularly described in the By-Laws, as they may be amended from time to time. 5.3 Association Property. All funds and the title to all properties acquired by the Association and their proceeds shall be held for the benefit and use of the members in accordance with the provisions of the Declaration, these Articles and the By-Laws. 5.4 Distribution of Income; Dissolution. The Association shall not pay a dividend to its members and shall make no distribution of income to its members, directors or officers, and upon dissolution, all assets of the Association shall be transferred only to another non-profit corporation or a public agency or as otherwise authorized by the Florida Not For Profit Corporation Act (Chapter 617, Florida Statutes). 5.5 Limitation. The powers of the Association shall be subject to and shall be exercised in accordance with the provisions hereof and of the Declaration, the By-Laws and the Act, provided that in the event of Item # 11 MIA 180,800,532v7 1-29-10 Attachment number 8 Page 67 of 77 conflict, the provisions of the Act shall control over those of the Declaration and By-Laws. ARTICLE 6 MEMBERS 6.1 Membership. The members of the Association shall consist of all of the record title owners of Units in the Condominium from time to time, and after termination of the Condominium, shall also consist of those who were members at the time of such termination, and their successors and assigns. 6.2 Assignment. The share of a member in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to the Unit for which that share is held. 6.3 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 MIA 180,800,532v71-29-10 Item # 11 Attachment number 8 Page 68 of 77 ARTICLE 9 OFFICERS The affairs of the Association shall be administered by the officers holding the offices designated in the By-Laws. The officers shall be elected by the Board of Directors of the Association at its first meeting following the annual meeting of the members of the Association and shall serve at the pleasure of the Board of Directors, provided, however, that the President and at least one Vice President of the Association must always be Directors, and, if the President is affiliated with any of the Owners of the City Controlled Units , then at least one Vice President, shall be affiliated with the Declarant Controlled Units, and if the President is affiliated with any of the Declarant Controlled Units, then at least one Vice President, Secretary and Treasurer shall be affiliated with the City Controlled Units. The By-Laws may provide for the removal from office of officers, for filling vacancies and for the duties and qualifications of the officers. The names and addresses of the officers who shall serve until their successors are designated by the Board of Directors are as follows: President Vice President Vice President Secretary/ Treasurer MIA 180,800,532v7 1-29-10 Item # 11 Attachment number 8 Page 69 of 77 ARTICLE 10 DIRECTORS 10.1 Number and Qualification. The property, business and affairs of the Association shall be managed by a board consisting of three (3) directors. Directors need not be members of the Association. 10.2 Duties and Powers. All of the duties and powers of the Association existing under the Act, the Declaration, these Articles and the By- Laws shall be exercised exclusively by the Board of Directors, its agents, contractors or employees, subject only to approval by Unit Owners when such approval is specifically required. 10.3 Election; Removal. To the extent permitted by the Act, at all times, prior to and/or following transfer of control in accordance with the provisions of Section 718.301, Florida Statutes (2008), the Owner of Retail Units shall each be entitled to elect and/or appoint one (1) member to the Board and the Owner of the Parking Unit shall be entitled to elect and/or appoint one (1) member to the Board. Directors may be removed only by the Unit Owner that elected/appointed the Director and vacancies on the Board of Directors shall be filled by the election/appointment of another Director by the Unit Owner who originally elected/appointed the Director being replaced. 10.4 First Directors. The names and addresses of the members of the first Board of Directors who shall hold office until their successors are elected and have taken office, as provided in the By-Laws, are as follows: Name Address Item # 11 MIA 180,800,532v7 1-29-10 Attachment number 8 Page 70 of 77 10.5 Standards. A Director shall discharge his or her duties as a director, including any duties as a member of a Committee: in good faith; with the care an ordinary prudent person in a like position would exercise under similar circumstances; and in a manner reasonably believed to be in the best interests of the Association. An officer, director or agent shall be liable for monetary damages as provided in Section 617.0834, F.S. if such officer, director or agent's breach or failure to perform, his or her duties constitutes a violation of criminal law as provided in Section 617.0834, F.S.; constitutes a transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property. Unless a Director has knowledge concerning a matter in question that makes reliance unwarranted, a Director, in discharging his or her duties, may rely on information, opinions, reports or statements, including financial statements and other data, if prepared or presented by: one or more officers or employees of the Association whom the Director reasonably believes to be reasonable and competent in the matters presented; legal counsel, public accountants or other persons as to matters the Director reasonably believes are within the persons' professional or expert competence; or a Committee of which the Director is not a member if the Director reasonably believes the Committee merits confidence. A Director is not liable for any action taken as a director, or any failure to take action, if he performed the duties of his or her office in compliance with the foregoing standards. ARTICLE 11 INDEMNIFICATION 11.1 Indemnitees. The Association shall indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, Item # 11 MIA 180, 800, 532v7 1-29-10 Attachment number 8 Page 71 of 77 the Association) by reason of the fact that he or she is or was a director, officer, employee, committee member or agent (each, an "Indemnitee") of the Association, against liability incurred in connection with such proceeding, including any appeal thereof, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Association and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Association or, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. 11.2 Indemnification. The Association shall indemnify any person, who was or is a party to any proceeding by or in the right of the Association to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee, or agent of the Association against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof. Such indemnification shall be authorized if such person acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Association, except that no indemnification shall be made under this Article 11 in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable unless, and only to the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. 11.3 Indemnification for Expenses. To the extent that a director, officer, employee, or agent of the Association has been successful on the merits or otherwise in defense of any proceeding referred to in Subsection 11.1 or 11.2. or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith. Item # 11 MIA 180,800,532v7 1-29-10 Attachment number 8 Page 72 of 77 11.4 Determination of Applicability. Any indemnification under Subsection 11.1 or Subsection 11.2 unless pursuant to a determination by a court, shall be made by the Association only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper under the circumstances because he or she has met the applicable standard of conduct set forth in Subsection 11.1 or Subsection 11.2. Such determination shall be made: (a) By the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such proceeding; (b) If such a quorum is not obtainable or, even if obtainable, by majority vote of a Committee duly designated by the Board of Directors (in which directors who are parties may participate) consisting solely of two or more Directors not at the time parties to the proceeding; (c) By independent legal counsel: 1. selected by the Board of Directors prescribed in Subsection 11.4(a) or the Committee prescribed in Subsection 11.4(b); or 2. if a quorum of the Directors cannot be obtained for Subsection 11.4(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 Item # 11 MIA 180,800,532v71-29-10 Attachment number 8 Page 73 of 77 Association in advance of the final disposition of such proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if he is ultimately found not to be entitled to indemnification by the Association pursuant to this section. Expenses incurred by other employees and agents may be paid in advance upon such terms or conditions that the Board of Directors deems appropriate. 11.7 Exclusivity; Exclusions. The indemnification and advancement of expenses provided pursuant to this section are not exclusive, and the Association may make any other or further indemnification or advancement of expenses of any of its directors, officers, employees, or agents, under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. However, indemnification or advancement of expenses shall not be made to or on behalf of any director, officer, employee, or agent if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (a) A violation of the criminal law, unless the director, officer, employee, or agent had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (b) A transaction from which the director, officer, employee, or agent derived an improper personal benefit; or (c) Willful misconduct or a conscious disregard for the best interests of the Association in a proceeding by or in the right of the Association to procure a judgment in its favor or in a proceeding by or in the right of the members of the Association. 11.8 Continuing Effect. Indemnification and advancement of expenses as provided in this Article 11 shall continue as, unless otherwise provided when authorized or ratified, to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person, unless otherwise provided when authorized or ratified. 11.9 Application to Court. Notwithstanding the failure of the Association to provide indemnification, and despite any contrary determination of the Board or of the members in the specific case, a director, o ffipcV,, Ite MIA 180, 800, 532v7 1-29-10 Attachment number 8 Page 74 of 77 employee, or agent of the Association who is or was a party to a proceeding may apply for indemnification or advancement of expenses, or both, to the court conducting the proceeding, to the circuit court, or to another court of competent jurisdiction. On receipt of an application, the court, after giving any notice that it considers necessary, may order indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses, if it determines that: (a) The director, officer, employee, or agent is entitled to mandatory indemnification under Subsection 11.3, in which case the court shall also order the Association to pay the director reasonable expenses incurred in obtaining court- ordered indemnification or advancement of expenses; (b) The director, officer, employee, or agent is entitled to indemnification or advancement of expenses, or both, by virtue of the exercise by the Association of its power pursuant to Subsection 11.7; or (c) The director, officer, employee, or agent is fairly and reasonably entitled to indemnification or advancement of expenses, or both, in view of all the relevant circumstances, regardless of whether such person met the standard of conduct set forth in Subsection 11. 1, Subsection 11.2, or Subsection 11.7, unless (a) a court of competent jurisdiction determines, after all available appeals have been exhausted or not pursued by the proposed indemnitee, that he or she did not act in good faith or acted in a manner he or she reasonably believed to be not in, or opposed to, the best interest of the Association, and, with respect to any criminal action or proceeding, that he or she had reasonable cause to believe his or her conduct was unlawful, and (b) such court further specifically determines that indemnification should be denied. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith or did act in a manner which he or she reasonably believed to be not in, or opposed to, the best interest of the Association, and, with respect to any criminal action or proceeding, that he or she had reasonable cause to believe that his or her conduct was unlawful. Item # 11 MIA 180, 800, 532v7 1-29-10 Attachment number 8 Page 75 of 77 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. ARTICLE 13 AMENDMENTS Amendments to these Articles shall be proposed and adopted in the following manner: 13.1 Notice. Notice of a proposed amendment shall be included in the notice of any meeting at which the proposed amendment is to be considered and shall be otherwise given in the time and manner provided in Chapter 617, Florida Statutes. Such notice shall contain the proposed amendment or a summary of the changes to be affected thereby. 13.2 Adoption. Amendments shall be proposed and adopted in the manner provided in Chapter 617, Florida Statutes and otherwise in the same manner required for amendment to the Declaration. Item # 11 MIA 180,800,532v7 1-29-10 Attachment number 8 Page 76 of 77 13.3 Limitation. No amendment shall make any changes in the qualifications for membership, nor in the voting rights or property rights of members, nor any changes in Subsections 5.3, 5.4 or 5.5 above, without the approval in writing of all members and the joinder of all record owners of mortgages upon Units. No amendment shall be made that is in conflict with the Act, the Declaration or the By- Laws, nor shall any amendment make any changes which would in any way affect any of the rights, privileges, powers or options herein provided in favor of or reserved to the Declarant and/or Mortgagees, unless the Declarant and/or the Mortgagees, as applicable, shall join in the execution of the amendment. No amendment to this Subsection 13.3 shall be effective. 13.4 Declarant Amendments. Notwithstanding anything herein contained to the contrary, to the extent lawful, the Declarant may amend these Articles consistent with the provisions of the Declaration allowing certain amendments to be effected by the Declarant alone. 13.5 Recording. A copy of each amendment shall be filed with the Secretary of State pursuant to the provisions of applicable Florida law, and a copy certified by the Secretary of State shall be recorded in the public records of Pinellas County, Florida with an identification on the first page thereof of the book and page of said public records where the Declaration was recorded which contains, as an exhibit, the initial recording of these Articles. ARTICLE 14 INITIAL REGISTERED OFFICE; ADDRESS AND NAME OF REGISTERED AGENT The initial registered office of this corporation shall be at c , with the privilege of having its office and branch offices at other places within or without the State of Florida. The initial registered agent at that address shall be IN WITNESS WHEREOF, the Incorporator has affixed his/her signature this day of 52009. , Incorporator Item # 11 MIA 180, 800, 532v7 1-29-10 Attachment number 8 Page 77 of 77 CERTIFICATE DESIGNATING PLACE OF BUSINESS OR DOMICILE FOR THE SERVICE OF PROCESS WITHIN THIS STATE, NAMING AGENT UPON WHOM PROCESS MAY BE SERVED In compliance with the laws of Florida, the following is submitted: First -- That desiring to organize under the laws of the State of Florida with its principal office, as indicated in the foregoing articles of incorporation, in the County of Pinellas, State of Florida, the Association named in the said articles has named located at as its statutory registered agent. Having been named the statutory agent of said Association at the place designated in this certificate, I am familiar with the obligations of that position, and hereby accept the same and agree to act in this capacity, and agree to comply with the provisions of Florida law relative to keeping the registered office open. By: Name: Title: DATED this day of , 2009. Item # 11 MIA 180,800,532v7 1-29-10 Attachment number 9 Page 1 of 6 This instrument prepared by, or under the supervision of (and after recording, return to): Nancy B. Lash, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, FL 33131 PARKING COVENANT THIS PARKING COVENANT (the "Covenant") is made as of the day of 20_, by and between the CITY OF CLEARWATER, a municipal corporation of the State of Florida (the "Cijy") and L.O.M., INC., a Florida corporation (the "Declarant"). RECITALS: A. Declarant is the owner in fee simple of that certain parcel of land located at 315 S. Gulf View Boulevard in Clearwater, Florida, which is legally described or depicted in Exhibit A attached hereto (the "Pro a "). B. City and Declarant entered into that certain Agreement For Development of Property (Surf Style Condominium Project) dated _, 2010 (together with any amendments, modifications extensions, restatements and supplements from time to time, the Development Agreement"), which governs, among other things, the construction and development of a mixed use retail/commercial project and a commercial parking garage on the Property (the "Project"). C. As a condition to entering into the Development Agreement, City has required and Declarant has agreed to encumber the Property with the covenants and restrictions set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Declarant hereby agrees as follows: 1. Recitals and Definitions. The Recitals above are true and correct and incorporated herein by reference. "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 Exhibit E Item # 11 Attachment number 9 Page 2 of 6 over the Property. Capitalized terms used in this Covenant (including the Recitals) without definition shall have the meanings given to them in the Development Agreement. 2. Public Parking Covenant. During all times that this Covenant remains in effect, the Project and any future development on the Property shall include 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 public parking spaces required hereunder 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. [insert the following if this Covenant is recorded before the Completion Date: This Covenant shall be null and void, and of no force and effect, in the event the Project is not constructed and completed in accordance with the terms of the Development Agreement by the Completion Date. Although the foregoing cancellation shall be automatic, Declarant shall have the right to provide record notice of such cancellation by recording a termination of this Covenant in the Public Records of Pinellas County, Florida.] 5. Enforcement. In the event that Declarant defaults under the terms, provisions or obligations of this Covenant and such default is not cured within thirty (30) days after receipt of the written notice specifying in reasonable detail the event of default (the "Default Notice"), or if such event of default is of such nature that it cannot be completely cured within such time period, then if the Declarant shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary, then City shall have all rights and remedies available at law Exhibit E 2 Item # 11 Attachment number 9 Page 3 of 6 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 contained in this Covenant shall (i) be construed as or deemed to constitute a conveyance, gift or dedication of any portion of the Property to City or the general public; or (ii) limit or restrict the absolute and unconditional right of the fee owner of the Property (or any portion thereof) to raze, alter or modify the Project or other improvements located on the Property from time to time or at any time (in its or their sole discretion, following a casualty or otherwise), subject to the terms of paragraph 2 hereof. 7. Amendment and Termination. This Covenant may not be amended, modified or terminated prior to the end of the term hereof except by written agreement of the then fee simple owner(s) of the Property and City, and the holders of any mortgages of record encumbering the Property. Furthermore, no modification, amendment or early termination shall be effective unless in writing and recorded in the Public Records of Pinellas County, Florida. 8. Governing Laws. The laws of the State of Florida shall govern the interpretation, validity, performance and enforcement of this Covenant. 9. Successors and Assigns. The rights and obligations of the Declarant hereunder shall bind and inure to the benefit of the Declarant, its successors and assigns. IN WITNESS WHEREOF, this Covenant has been signed, witnessed, executed and acknowledged as of the day and year first above written. SIGNED, SEALED AND DELIVERED L.O.M., INC., a Florida corporation IN THE PRESENCE OF: Name: Name: STATE OF FLORIDA COUNTY OF By:_ Name: Title: Exhibit E 3 Item # 11 Attachment number 9 Page 4 of 6 The foregoing instrument was acknowledged before me this _ as Florida corporation, on behalf of the corporation. By: Signature of Notary Public Printed, typed or stamp day of , 20 by of L.O.M., INC, a My Commission Expires: Exhibit E Item #411 Attachment number 9 Page 5 of 6 EXHIBIT A LOM PROPERTY PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°1 5'44"E a distance of 35.00 feet to the Point of Beginning. Exhibit E Item # 11 Attachment number 9 Page 6 of 6 JOINDER OF MORTGAGEE THIS JOINDER OF MORTGAGEE is given as of the _ day of , 20_, on behalf of [Insert Name of Lender], a ("Mortgagee"), being the owner and holder of that certain mortgage of even date herewith made by , a ("Mortgagor") in favor of Mortgagee, which Mortgage has been recorded in Official Records Book , Page of the Public Records of Pinellas County, Florida (the "Mortgage"), and encumbers, among other things, the property described in Exhibit A to the foregoing Parking Covenant (the "Parking Covenant"). WHEREAS, Mortgagor has requested Mortgagee to consent to and join in the Parking Covenant and to subordinate the lien and effect of the Mortgage to the Parking Covenant. NOW, THEREFORE, Mortgagee joins in the execution and consents to the recordation of the Parking Covenant and agrees that the lien and effect of the Mortgage shall be subject and subordinate to the terms of the Parking Covenant. Mortgagee makes no warranty or any representation of any kind or nature concerning the Parking Covenant, any of its terms or provisions, or the legal sufficiency thereof, and disavows any such warranty or representation. Except as expressly provided herein, nothing contained herein shall affect or impair the rights and remedies of Mortgagee as set forth in the Mortgage. EXECUTED as of the day and year first above written. Witnessed by: [Insert Name of Mortgagee] By: _ Print Name: Name: Title: Print Name: STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this _ day of , 20 by ,as of ,a , on behalf of the By: Signature of Notary Public My Commission Expires: Printed, typed or stamp MIA 180, 825, 646v6 2-5-10 Exhibit E Item # 11 Attachment number 10 Page 1 of 10 This instrument prepared by, or under the supervision of (and after recording, return to): Nancy Lash, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 for Clerk of SIDEWALK AND TURN-LANE EASEMENT AGREEMENT THIS SIDEWALK AND TURN-LANE EASEMENT AGREEMENT ("AgLeement") is made and entered into as of the _ day of , 20_, by and between the CITY OF CLEARWATER, a municipal corporation of the State of Florida ("City"), and L.O.M., INC., a Florida corporation ("LOM"). RECITALS: A. The City and LOM have entered into that certain Agreement for Development of Property in the City of Clearwater (Surf Style Condominium Project) dated 20_ (the "Development Agreement"). The Development Agreement sets forth the terms and conditions governing the development and construction of a retail/commercial project containing approximately 41,000 square feet, which project includes a parking garage containing approximately 349 parking spaces (of which 300 spaces will be open to the public), on certain real property located on South Gulfview Boulevard in the City of Clearwater, Florida, more particularly described in Exhibit A attached hereto (the "LOM Property"). B. The City owns or controls that certain parcel of land lying adjacent to and east of the LOM Property, which is a portion of the sixty foot (60') right-of-way known as "Coronado Drive". C. Pursuant to Section 2.03(6) of the Development Agreement, LOM agreed to grant an easement in favor of the City for a sidewalk and turn-lane encumbering an [eleven (11)] foot wide strip of land on the east side of the LOM Property along Coronado Drive, as is more particularly described in Exhibit B attached hereto ("Easement Area"). D. LOM hereby desires to grant and create, on the terms and conditions hereinafter set forth, certain easements over, under and upon that portion of the Easement Area in favor of the City. NOW, THEREFORE, in consideration of the premises, agreements and covenants set forth hereinafter, and for other good and valuable consideration, the receipt and sufficiency of Exhibit G Item # 11 MIA 181,008,5440 1-27-10 Attachment number 10 Page 2 of 10 which are hereby acknowledged, the City and LOM hereby agree that the foregoing recitals are true and correct and further agree as follows: 1. Grant of Easements to the City. Subject to the conditions herein, LOM hereby grants to the City for the use of the City, its agents, employees, contractors, representatives and licensees and the members of the general public a perpetual non-exclusive easement over, through, upon, across and under the Easement Area for the following purposes: (i) pedestrian and vehicular ingress and egress and (ii) maintenance, repair, and restoration of the Easement Area, including, without limitation, the sidewalk and turning lane located therein. The easements granted herein include the right to keep and maintain the sidewalk and turning lane within the Easement Area (and repair, restore and replace same in the event of damage or destruction of any kind or nature) in perpetuity. 2. Maintenance of Easement Area. The City shall, at its sole cost and expense, (a) except as otherwise provided herein, maintain and repair the Easement Area in accordance with all of the City of Clearwater standards for maintenance of sidewalks and turning lanes or, more broadly, for areas providing vehicular and pedestrian ingress and egress to the general public, if applicable, and (b) repair any damage to the landscaping, surfaces, structures or utilities within the Easement Area caused by the use of the Easement Area by the City and the general public. Notwithstanding the foregoing, LOM shall reimburse the City for all costs and expenses incurred in the maintenance, repair and restoration of the Easement Area necessitated by or required as a result of the negligence or willful misconduct of LOM, its employees, contractors, operators, agents or representatives. 3. No Obstruction of Traffic. Except during temporary periods when it is reasonably necessary to repair or replace facilities or improvements within the Easement Area or to make installations within the Easement Area (including, without limitation, utility lines), LOM and the City shall permit no material obstruction to the free flow of vehicular or pedestrian traffic in and through the Easement Area. All construction, maintenance or repair work within the Easement Area shall be accomplished in such a manner as to minimize any disruption to the free flow of ingress and egress over and across the Easement Area. 4. Reservation. LOM hereby reserves all rights of ownership in and to the Easement Area which are not inconsistent with the easement and rights granted herein, including, without limitation, the right to grant further easements on, over and/or across such area (e.g. utility easements) and all other uses not interfering with the uses permitted herein. 5. Liens. The City shall keep the Easement Area (and all portions thereof) at all times free of mechanics' liens, and any other liens, for labor, services, supplies, equipment or materials purchased or procured, directly or indirectly, by or for the City. The City agrees that it will promptly pay and satisfy all such liens of contractors, subcontractors, mechanics, laborers, materialmen and others of like character. In the event any such liens shall be made or filed, the City shall bond against or discharge same within thirty (30) days after receiving written notice of the filing of same. The City shall not have any authority to create any liens for labor or material on the Easement Area and all persons contracting with the City for the performance of any services, supply of any materials or provision of any labor for any work done in, on or around the Easement Area, and all materialmen, contractors, suppliers, mechanics and laborers are hereby Exhibit G Item # 11 MIA 181,008,5440 1-27-10 Attachment number 10 Page 3 of 10 charged with notice that they must look solely to the City to secure payment of any bill for work done or material furnished at the request or instruction of the City. 6. Defaults. In the event that any party defaults under the terms, provisions or obligations of this Agreement and such default is not cured within thirty (30) days after receipt of the written notice specifying in reasonable detail the event of default ("Default Notice"), or if such event of default is of such nature that it cannot be completely cured within such time period, then if the defaulting parry shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary, then the nondefaulting party shall have all rights and remedies available at law or in equity for the redress of such default, including, in the case of LOM, the right of self-help under the circumstance set forth in paragraph 7 below. 7. Self-Help. If the City fails to maintain the Easement Area in the condition described in paragraph 2 above, then LOM may give a Default Notice to the City, and the City shall have the applicable cure period (described in paragraph 6 above) following receipt of such notice to restore the Easement Area to the required condition. If the City fails to restore the Easement Area within said cure period, then, in addition to the other remedies provided herein, LOM may restore same to the required condition and thereafter the City shall reimburse LOM for the reasonable costs of such restoration (excluding any restoration the cost of which the City is required to reimburse under paragraph 2) within fifteen (15) days following LOM's receipt of an invoice therefor. Any sums not reimbursed when required herein shall bear interest at the maximum rate allowed by law from the date due until paid. 8. Covenant Running with the Land. The easements hereby granted and the requirements herein contained are intended as, and shall be, covenants running with the land. 9. Amendments: Termination. This Agreement may not be amended, modified or terminated except by written agreement of the City and all of the fee owners of the LOM Property, and the holders of any mortgages of record encumbering same. Furthermore, no modification or amendment shall be effective unless in writing and recorded in the Public Records of Pinellas County, Florida. 10. Miscellaneous. a. Counterparts. This Agreement may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all of which (when taken together) shall constitute one and the same instrument. b. Construction. Reference to any paragraph, section, exhibit, or subpart thereof, unless otherwise provided, shall refer to this Agreement. In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and reference to any particular gender shall be held to include every other and all genders. Use of the term "including" shall mean "including, without limitation". Each of the parties hereto and their counsel have reviewed and revised, or requested revisions to, this Agreement, and the usual rule of construction that any ambiguities are to be resolved against the drafting party shall be Exhibit G Item # 11 MIA 181,008,5440 1-27-10 Attachment number 10 Page 4 of 10 inapplicable in the construction and interpretation of this Agreement and any amendments or exhibits to this Agreement. C. Titles of Paragraphs and Sections. The titles of the several parts, paragraphs and sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. d. Notices. Any notice or communication under this Agreement shall be in writing and shall be deemed sufficiently given if hand delivered or dispatched by United States certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight delivery service, to the appropriate party or entity, and their respective authorized representatives as set forth below, at the address specified below or at such other address of which the other parties shall be duly notified in writing: NOTICE TO THE CITY: City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager WITH COPY TO: Pamela K. Akin, Esq. Clearwater City Attorney 112 S. Osceola Avenue Clearwater, FL 33756 NOTICE TO LOM: L.O.M., Inc. c/o Surf Style, Inc. 4100 N. 28th Terrace Hollywood, Florida 33020 Attn: Controller 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 circumstance other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. f. Governing 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. g. 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. Exhibit G Item # 11 MIA 181,008,544x3 1-27-10 Attachment number 10 Page 5 of 10 h. Exhibits. All of the Exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. i. Waiver of Jury Trial. The parties hereby each knowingly, irrevocably, voluntarily and intentionally waive any right such party may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement to the parties to enter into this Agreement. [The remainder of this page is intentionally left blank.] Exhibit G Item # 11 MIA 181,008,5440 1-27-10 Attachment number 10 Page 6 of 10 EXECUTED as of the date and year first above written. CITY OF CLEARWATER, FLORIDA By: Frank V. Hibbard Mayor Approved as to form: Attest: Pamela K. Akin Cynthia E. Goudeau City Attorney City Clerk Exhibit G Item # 11 MIA 181,008,5444 1-27-10 Attachment number 10 Page 7 of 10 SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF: Name: Name: STATE OF FLORIDA ) COUNTY OF ) L.O.M., INC., a Florida corporation By:_ Name: Title: The foregoing instrument was acknowledged before me this _ day of as Florida corporation, on behalf of the corporation. By: Signature of Notary Public 20_ by of L.O.M., INC, a My Commission Expires: Printed, typed or stamp Exhibit G Item # 11 MIA 181,008,5440 1-27-10 Attachment number 10 Page 8 of 10 JOINDER OF MORTGAGEE THIS JOINDER OF MORTGAGEE is given as of the _ day of 20 , on behalf of [Insert Name of Lender], a ("Mortgagee"), being the owner and holder of that certain mortgage of even date herewith made by , a ("Mortgagor") in favor of Mortgagee, which Mortgage has been recorded in Official Records Book , Page of the Public Records of Pinellas County, Florida (the "Mortgage"), and encumbers, among other things, the property described in Exhibit A to the foregoing Sidewalk and Turn-Lane Easement Agreement (the "Easement"). WHEREAS, Mortgagor has requested Mortgagee to consent to and join in the Easement and to subordinate the lien and effect of the Mortgage to the Easement. NOW, THEREFORE, Mortgagee joins in the execution and consents to the recordation of the Easement and agrees that the lien and effect of the Mortgage shall be subject and subordinate to the terms of the Easement. Mortgagee makes no warranty or any representation of any kind or nature concerning the Easement, any of its terms or provisions, or the legal sufficiency thereof, and disavows any such warranty or representation. Except as expressly provided herein, nothing contained herein shall affect or impair the rights and remedies of Mortgagee as set forth in the Mortgage. EXECUTED as of the day and year first above written. Witnessed by: Print Name: Print Name: STATE OF FLORIDA COUNTY OF [Insert Name of Mortgagee] By: _ Name: Title: The foregoing instrument was acknowledged before me this _ day of ,as on behalf of the By: Signature of Notary Public Printed, typed or stamp 20_ by of a My Commission Expires: Exhibit G Item # 11 Attachment number 10 Page 9 of 10 EXHIBIT A LOM PROPERTY PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82'1 5'44"E a distance of 35.00 feet to the Point of Beginning. Item MIA 181,008,544x3 1-27-10 # 11 Attachment number 10 4Rwe 10 of 10 SKETCH of DESCRIPTION THIS IS NOT A BOUNDARY SURVEY SCALE : 1" = 50' pI 50' 100' w t j i LOT 59 1 Q f- I LOT 1.06 - + - 1 1 1 *59'4 3,.E S81 l 11. f o LOT 60 e r ost ri h N y - I Southerly 1 /2 e o Comer ut r_ _ LOT 107•• Lot 107 r t 03j ---- _? -- i (Li 1 LOT 108 1a 1 UJJ I ? $ LOT 61 j LY - r 5 ? , - fir` i LL r_ " Q o LOT 109 e ? t i +$ LOT 62 (-- __-- O -- - - }1o_(P), - droN l LOT 110 R 01 ? _ . .. :LOT 63 ] N80,56,05- W 1 f i.p0' I h 1/2' 1 l f 1 i r t it 1 1 CURVE DATA LOT 111 1 P.O-B• ! Southeasterly Cgrner Lot 110 tNGLE ARC; LFJVGTH CNORO LENGTH CHORD BEARING D" 173.91 173.90 N08'53'29'E 7" 174 11' 117411` I Soo 5316': vi 1 i DESCRIPTION: (proposed access easement) The Easterly 11.0 feel of the Southerly one-half of Lot 107 and the Easterly 11.0 feet of Lots 108 and 109 and 110. LLOYD-WHITE-SKINNER SUBDMSION. according to the plat thereof as recorded in Plot Book 13, Pages 12 and 13, Public Records of Pinellas County. Florida, more port'iculorly, described as follows: Begin at the Southeasterly corner of said Lot 110; thence NBO'56'05*N, along the Southerly boundary thereof a distance of 11,00 feet: thence t7391 feet along the arc of a curve to the left having o radius of 6216.52 lest, subtended by a chord distance of 173.90 feet, bearing NO8'53'29"W to a point of intersection with the Northerly boundary of the Southerly one-half of said Lot 107 thence S81'59'43"E, along said Northerly boundary a distance of 11.00 feet to the Northeasterly comer of the South one-half of said Lot 107; thence 174.11 feet along the Westerly 'fight of way' Inc of Coronado Drive and along the ore of a curve to the right having a radius of 6227:52 feet, subtended by o chord distance of 1701 feet, bearing 5095326'#, to the Point of Beginning. LEGEND 11.. NO UNDERGROUND INSTALLATIONS OR IMPROXMENTS HAVE BEEN LOCATED EXCEPT AS SHOW 2. NO INSfRUMDM OF RECORD RITUCTM EASEMENTS, RIGHT OF WAY AND/at OWNERSHIP WERE FURNISHED TO THIS SURVEYOR EXCEPT AS SHOWN. ID DDITIFICIGION PLS PRIFESSM LAND SDRMN 3. THE SKETCH DOES NOT RE ECT OR DETERMINE :OWNERSHIP. LB UGD= BUSNESS 4. USE OF THIS SKETCH BY ANYONE OTHER TWW THOSE PREPARED FOR WILL BE THE RE-USERS P PIAT INFOMAW SALE RISK WRHOUT LIABILITY TO THE SURVEYOR €Fj F? MDS 5. Tiff SKETCH WAS PREPARED WfTHOUT THE BENEFIT OF A CURRENT TIRE COMMITMENT AND 5 POB POW OF eeOAerM SUBJECT T0. EASQAUM. RIGH S-OF-wAY AND SIMMR MATTERS OF TITLE.. me MIT or 00114101cmw 6. MERIDIAN BOSSED ON THE W57MY RIGHT OF WAY LAZE OF CORONADO DRIVE AS SEA" SOB'53'26'W (ASSUMED). repared for and Certified To: DATE. Drawing No. 902602.dwg Pra}ect No. 9026 Keith ZOyac and Associotes, Inc. December 22, 2000 Checked By KOM * Meld "Book Pages Drown By P. w r ?„_ „•? VEYOR'S C I TEe-a SUNCOAST LAND SURVEYING, Inc. '" er1m'I ° gyp' ""r RE?oNSIetE CHAIM ARGE an the aol?sT=+:Ze• .d ? ?,'il6d;>IiwDAA+ : STANDARDS eel ran, M 111 FOREST LAKES BOULEVARD one rLCwoA IwARti:OFr suavrYas uK etctT-e. FLORIDA MZ? 5' SIRATIVE CODE pYJWo OLDSMAR; FLA 34677 'NOT VALID vMUM AND THE OF A FLOFADC UCDISED BOUNDARY -. TOPOGRAPHIC - tX)NS1RlIC110N STAKEOUT SURVEYOR AND LB 513 PHONES (813) B54-1342 FAX: (813) 855-6890 ND. PLS No.5279 Item # 11 Exhibit B Attachment number 11 Page 1 of 1 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 Item # 11 a ?d a u a. m ? E o ? 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O Z O N w Z0 c ¢ w N co w N v w N v w N w N U O O z r? ¢ v ¢ v ¢ ¢ ¢ ¢ LL w w LL ¢ ¢ ¢ ¢ 2. ¢ .2 ¢ a N a N a N a rn ¢ ¢ ¢ ¢ ¢ ¢ ? ? ? v ? w N ¢ ? mm Op' z E n ~ E < a 0 m o a m o in m •- ? w >? _ a - 1 m 2 ' p -3 m LL w cu a -o . mt c o m 71 S a -_o w c a U - O u U c - m w o m 0 E > E o > E o m E o o Z E m > O E ¢ L in w in w N N Q > > ` y a ? o E z m ¢a Attachment number 13 Page 1 of 15 Negotiated Tim Haahs Guidelines - January 20, 2010 (Reference October 30, 2009 TimHaahs Design Guidelines for further clarification and detail - see attached) Governing Codes and References 1) 2007 Florida Building Code 2) Code of Ordinances: City of Clearwater, FL 3) Code and Land Development Code, County of Pinellas County, FL 4) Beach by Design: A Preliminary Design for Clearwater Beach - including Section VII. Design Guidelines 5) NFPA 101 Life Safety 6) NFPA 88A Standard for Parking Structures 7) ACI 318-05 Building Code Requirements for Structural Concrete 8) ACI 362.1 R-97 Guide for the Design of Durable Concrete Parking Structures Note: with approved variances to Section 8.c.i - Slope for Drainage and Sections 8.c.ii & 8.c.iii - Corrosion Protection and Estimated Service Life as outlined in letter to Ms. Tracey Bruch, City Parking Manager, by Allen Finfrock, PE, Vice-President of Finfrock Design, Inc. dated September 24, 2009. 9) ANSI A117.1 Accessible and Usable Buildings and Facilities 10) Design Team is required to design the project under the applicable building codes, regulations and standards at the time of the design submission for approval and construction. 11) Design Team shall incorporate sustainable design practices into the project, such as recycled materials, energy efficient lighting, etc. Functional Provisions 1) 9'-0" x 18'-0" typical parking spaces a. Additional P-0" width shall be included for spaces adjacent to continuous obstructions (i.e. columns, walls, fences) 2) Typical floor clearance: Minimum of 7'-0" 3) ADA van space location clearance: Minimum of 8'-2" 4) ADA spaces shall be located adjacent to stair/elevator towers to minimize travel distance 5) Wheelstops shall be provided at ADA spaces only, as required 6) Ramp slopes a. Typical floors shall be between 5% and 6% b. Speed ramps shall not exceed 12% c. Areas near parking equipment shall be between 2% and 3% 7) End bay clearances: Utilize 27'-0" clear at two-way crossovers for proper turning radius Exhibit 1 Item # 11 Attachment number 13 Page 2 of 15 8) Queuing: Minimum distance 40'-0" for entry and exit lanes 9) Minimize use of curbs within the parking structure 10) Maximize openings in interior and exterior walls 11) Utilize exterior shearwalls with openings, in lieu of interior locations Note: Final Design Plans will limit width of Shearwall at Gridline C5.25 to extent possible as dictated by the Structural Engineer. Convex mirrors will be installed as necessary to facilitate sight lines around potential obstacles. 12) Minimize areas of conflict between pedestrians and vehicles. Where areas of conflict exist, provide a means of traffic calming devices (flashing signals, crosswalk striping, bollards, etc.). Provide additional bollards at Stair and Elevator towers. 13) Eliminate hiding places such as solid walls and deep corners 14) Means to prevent bird nesting including sloped ledges, spikes, repellents Note: City's Maintenance Department will provide if City takes possession of garage in the future. 15) Access along north side of garage to allow for future maintenance and repairs Note: Personnel access only will be provided, but not equipment wider than 3 feet 16) Rooms as required for Storage/Utility, Electrical, Mechanical, Transformer, Generator, Elevator Machine. Provide a utility room adjacent to the parking office. Architectural Provisions 1) Stairtowers/Elevator towers a. ADA compliant design and layout b. Enclosure at top level for elevator tower for weather protection. Inclusion consists of a standing seam metal room without glazing. c. Maximize openness within stairtowers for increased visibility Note: Due to fire rating, no openings will be provided internal to the garage. Maximized openness will be provided to the exterior, where fire rating is not required. e. Galvanized steel handrails Note: Powder-coated aluminum handrails will be provided f. Abrasive nosings cast into stair treads Note: Tim Haahs reviewed independent testing report of Finfrock's stairs and found acceptable g. Enclose bottom run of stairs at ground level to eliminate hiding places Exhibit 1 Item # 11 Attachment number 13 Page 3 of 15 2) Elevators a. Hydraulic type, minimum of two cabs Note: Two machine-room-less traction elevators will be provided b. Vandal resistance cab, hoistway, fixture finishes (i.e. textured stainless steel) c. Emergency call equipped d. Tied into the emergency power source Note: An emergency generator will be provided to service all garage lighting, one elevator, half of all retail lighting and one point of sale location, and public corridor. e. Durable floor system (i.e. continuous vinyl tile) 3) Signage a. Adequate wayfinding signage for both vehicles and pedestrians. b. Consider implementing a floor theme to aid patrons in remembering their vehicle location. c. Scotchlite reflective signs Structural Provisions 1) Corrosion protection methods in line with ACI 362 Note: with approved variances to Section 8.c. i - Slope for Drainage and Sections 8.c.ii & 8.c.iii - Corrosion Protection and Estimated Service Life as outlined in letter to Ms. Tracey Bruch, City Parking Manager, by Allen Finfrock, PE, Vice-President of Finfrock Design, Inc. dated September 24, 2009. 2) Galvanized steel precast connections that are protected by grout or cast-in-place toppings or washes 3) Stainless steel precast connections (i.e. tee to tee) that are protected by sealant alone 4) Minimize exposed welded or bolted connections 5) Concrete slab-on-grade with tooled joints and vapor barrier beneath occupied areas 6) Tooled joints with sealants in cast-in-place toppings or washes Waterproofing Provisions 1) Expansion joints located at high points 2) Compressible filler material at vertical expansion joints between garage and stairtowers, such as an Emseal Colorseal product 3) Elastomeric deck coating above all occupied spaces and MEP rooms 4) Treat the exposed ramp as a plaza deck to provide increased waterproofing protection for occupied space below Note: An Auto-Gard polyurethane vehicular traffic deck coating produced by Neogard over all occupied spaces that carries a 10 year Joint and Several Warranty and will be flood tested (24 hour period) prior to acceptance. Exhibit J Item # 11 Attachment number 13 Page 4 of 15 Plumbing Provisions 1) Cold water risers and hose bibs at each parking level for garage washdown 2) Sufficient slope on floor members and an adequate number of floor drains on all levels to negate any areas of water ponding 3) Floor drains used specifically for parking structures, such as Watts FD-900 epoxy coated models or equal Note: Storm Drainage of the upper decks will utilize Slot Drains fastened below the double tee flange, with the entrance a galvanized steel grate and Y2" wide joint between the double tee flanges on the exposed top deck, and Y2" wide joint between the double tee flanges on the lower garage levels, all of which sized by Plumbing Engineer. Cleanouts for each drain shall be included. 4) Galvanized steel pipe guards for any exposed risers for bumper guard protection 5) Storm retention system shall be easily accessible for maintenance Fire Protection Provisions 1) Portable fire extinguishers as required by NFPA 10 Standard for Portable Fire Extinguishers 2) Fully sprinklered parking garage 3) Galvanized steel pipe guards for any exposed risers for bumper guard protection Electrical Provisions 1) Lighting levels a. Meet or exceed current minimum IES standards b. Parking/Drive aisles -10 fc (minimum average) Note: Provide a minimum of 5-6 fc average. c. Vehicular Entry/Exits - 50 fc (minimum average) Note: Lighting will meet the requirements of IES RP-20 d. Stairtowers/Lobby interiors/Ground level retail areas and corridors - 20 fc (minimum average) Note: Lighting will meet the requirements of IES RP-20 e. Provide additional lighting at any interior shearwalls Note: Lighting will meet the requirements of IES RP-20 f. Emergency lighting to meet Code requirements g. Provide photometrics of light levels listed above 2) Lighting fixture a. Fluorescent type fixtures with uplight component Note: Fixtures compliant with Sea Turtle Lighting Restrictions will be utilized. Exhibit 1 Item # 11 Attachment number 13 Page 5 of 15 3) Lighting control system a. Programmable lighting control system for time and date control of light fixtures b. Photocells for controlling perimeter lighting and vehicular entry/exit areas. 4) Receptacles a. Weather proof enclosed types located at each stairtower and elevator lobby, each level 5) Conduit a. No placement within expansion joints. b. Expansion capacity when crossing an expansion joint c. Exposed conduit on the exterior of the garage is not permitted 6) Security System a. Consider implementation of a CCTV system with camera placement on all levels of the parking garage, specifically at Stairtower locations and the ground level, specifically at the retail corridor and vehicular entry/exits. 7) Emergency Power a. Backup power (i.e. generator) for ground level occupancy, elevators, and lighting fixtures Note: An emergency generator will be provided to service all garage lighting, one elevator, half of all retail lighting and one point of sale location, and public corridor. Parking System Provisions 1) Pay-on-foot complete parking equipment system including barrier gates, ticket spitters, detector loops, pay stations (minimum of two), etc. 2) Adequate signage to inform patrons of the payment method to include signage locations throughout the parking garage on all floors and near the pay stations 3) Electronic signs at reversible lanes 4) Parking office including ADA compliance, HVAC conditioning, restroom, telephone, internet, customer service window, etc. Exhibit J Item # 11 Attachment number 13 Page 6 of 15 Tim.Haa s ENGINEERS ARCHITECT$ October 30, 2009 Ms. Tracey Bruch, CAPP Parking Manager City of Clearwater 100 S. Myrtle Ave., #220 Clearwater, FL 33758 www.timhaahs.corn TIMOTHY HAAHS & ASSOCIATES, INC. 1' 0305 N.W 41` STREET, SUITE 201 MIA1,01, FL 33178 T. 305-592-7123 F. 305-592-7113 RE: Surf Style/Britt's Parking Garage Parking Structure Design Guidelines - 9/8/09 Meeting Summary Clearwater, FL Dear Tracey: This letter provides an update to the Parking Structure Design Guidelines based upon the following: • October 2, 2009 Finfrock response letter to the Design Guidelines • October 15, 2009 Parking structure site visits by Finfrock and TimHaahs • October 23, 2009 ACI 362 letters by Finfrock and Tourney Consulting Group A list of remaining items to be addressed is provided below: • Architectural Provisions: 2d-iv Generator inclusion • Electrical Provisions: 1g Photometrics final design We look forward to further discussing these comments with Finfrock and the City of Clearwater. Please contact me at your earliest convenience with any questions or comments. Sincerely, Mark N. Santos, P.E. Vice President Exhibit 1 Item # 11 PLANNING I ENGINEERING I ARCHITECTURE I PARKING Attachment number 13 Page 7 of 15 Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 2 Governing Codes and References 1) 2007 Florida Building Code 2) Code of Ordinances: City of Clearwater, FL 3) Code and Land Development Code, County of Pinellas County, FL 4) Beach by Design: A Preliminary Design for Clearwater Beach - including Section VII. Design Guidelines 5) NFPA 101 Life Safety 6) NFPA 88A Standard for Parking Structures 7) ACI 318-05 Building Code Requirements for Structural Concrete 8) ACI 362.1 R-97 Guide for the Design of Durable Concrete Parking Structures a. Comment - There are several items within this guide which are not applicable to a precast concrete garage. A specific example would be the requirements of Section 3.2 - Drainage. The section requires a cross-slope of 1.5% in the direction of the gutter" line, but due to the forces associated with twisting of the double tee, a slope of only 1.04% is achievable. However, due to the manufactured nature of precast concrete we are able to consistently provide this slope which in the 120 garages built to date has not negatively impacted the drainage of the structure. In addition, we will be able to comply with the requirements in the section entitled "Structural Provisions" listed below. b. Response - Drainage slopes of between 1.5% and 2% shall be met to ensure proper drainage, as noted in the above mentioned reference. It is our understanding each 12'-0" wide tee (6'-0" on center stems) are able to withstand 2" of warp to accommodate the desired drainage slopes. c. 9/8109 Discussion i. Finfrock stated 1.5" maximum warp can be applied to each tee. TimHaahs recommended that the drain points be lowered to -14" (i.e. Grid C2) to allow a minimum of 1.5% slope from the high point (i.e. Grid Al). In order to maintain the warp limitations, the Grid C1 elevation should be adjusted to -8" Action - Finfrock to confirm. ii. TimHaahs inquired if a penetrating silane sealer will be applied to the structure, however this is currently not included. TimHaahs requested Finfrock incorporate the sealer as identified in ACI 362 Table 3.4 based on the durability zone. Action - Finfrock to confirm. iii. Finfrock intends to use a 3 5/8" flange providing 1 %" cover as permitted by ACI 318. ACI 362 requires a minimum of 1 Y ". Per the conference call, TimHaahs found the lesser cover acceptable. Post Meeting - TimHaahs recommends the inclusion of a corrosion inhibitor in the floor members. Action - Finfrock to confirm. d. 10/2/09 Finfrock Response - Please see attached letter from Allen Finfrock, PE concerning the comments regarding ACI 362. e. 10/30/09 TimHaahs Response - Finfrock has provided a letter summarizing a report conducted by Material Service Life in 2008 to estimate the service life of Finfrock garages in various environments throughout the State of Florida. Although the report was not obtainable, a validation letter of this report was provided by Tourney Consulting Group. For item 8-c-i, a 1% minimum drainage slope is acceptable. For items, 8-c-ii and iii, exclusion of sealer and corrosion inhibitor are acceptable. 9) ANSI Al 17.1 Accessible and Usable Buildings and Facilities Exhibit 1 ! 1ffh5 Attachment number 13 Page 8 of 15 Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 3 10) Design Team is required to design the project under the applicable building codes, regulations and standards at the time of the design submission for approval and construction. 11) Design Team shall incorporate sustainable design practices into the project, such as recycled materials, energy efficient lighting, etc. Functional Provisions 1) 9'-0" x 18'-0" typical parking spaces a. Additional 1'-0" width shall be included for spaces adjacent to continuous obstructions (i.e. columns, walls, fences) 2) Typical floor clearance: Minimum of 7'-0" 3) ADA van space location clearance: Minimum of 8'-2" 4) ADA spaces shall be located adjacent to stair/elevator towers to minimize travel distance 5) Wheelstops shall be provided at ADA spaces only, as required 6) Ramp slopes a. Typical floors shall be between 5% and 6% b. Speed ramps shall not exceed 12% c. Areas near parking equipment shall be between 2% and 3% 7) End bay clearances: Utilize 27'-0" clear at two-way crossovers for proper turning radius a. Comment - We have not provided this, as we have constructed well over 120 garages using 24' clear drive aisles. b. Response - 24'-0" clear drive aisles are acceptable along straight paths. Per the "Parking Structures" 3 d edition reference, 26'-6" clear turning radius is the minimum requirement for LOS D. Provide 27'-0" clearance for proper two-way traffic at the end bays. Otherwise, provide justification using a turning template to confirm 24'-0" clearance at end bays can function. c. 9/8/09 Discussion i. 29'-0" clearance provided; 24'-0" wide drive aisle is striped. This is acceptable. ii. TimHaahs recommended Finfrock place a turning template at the entry parking equipment to confirm sufficient room is present for a vehicle to access the ticket station. Action - Finfrock to confirm. d. 10/2/09 Finfrock Response - A turning template will be provided as requested during final design of garage. e. 10/30/09 TimHaahs Response - Turning templates have been provided on the Architectural Plans dated "Progress Print 10/9/09". 8) Queuing: Minimum distance 40'-0" for entry and exit lanes 9) Minimize use of curbs within the parking structure 10) Maximize openings in interior and exterior walls 11) Utilize exterior shearwalls with openings, in lieu of interior locations a. Comment - Due to site constraints, we are unable to meet this. b. Response - Will comment further once plans are received and reviewed. c. 9/8/09 Discussion - Finfrock will investigate incorporating openings and/or decreasing the extent of the eastern internal shearwall Exhibit Tinlfts Attachment number 13 Page 9 of 15 Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 4 Action - Finfrock to confirm. d. 10/30/09 Finfrock Response - Final Design Plans will limit width of Shearwall at Gridline C5.25 to extent possible as dictated by Structural Engineer. Convex mirrors will be installed as necessary to facilitate sight lines around potential obstacles. 12) Minimize areas of conflict between pedestrians and vehicles. Where areas of conflict exist, provide a means of traffic calming devices (flashing signals, crosswalk striping, bollards, etc.) a. Comment - Typically provide crosswalk striping and bollards as appropriate. b. Response - Will comment further once plans are received and reviewed. c. 9/8/09 - Finfrock will incorporate more bollards at the stairtowers and elevator lobbies. 13) Eliminate hiding places such as solid walls and deep corners a. Comment - We can minimize but not eliminate, due to site constraints. b. Response - Will comment further once plans are received and reviewed. c. 9/8/09 Discussion - Finfrock will incorporate. 14) Means to prevent bird nesting including sloped ledges, spikes, repellents a. Comment - We do not provide this and have not included. b. Response - City will defer this response to a later date upon coordination with Maintenance Department. 15) Access along north side of garage to allow for future maintenance and repairs a. Comment - Access for personnel can be provided, but not equipment wider than 3 feet due to site constraints and proximity of adjacent building. b. Response - This is acceptable. 16) Rooms as required for Storage/Utility, Electrical, Mechanical, Transformer, Generator, Elevator Machine a. Comment - The only rooms that will be located in the garage portion of this building will be the Elevator Machine Room and Operator's Office. b. Response - Confirm need for Electrical and Utility rooms. Will comment further once plans are received and reviewed. c. 9/8/09 Discussion - Finfrock will incorporate a Utility room adjacent to the parking office. Electrical room is located on the ground floor within the retail area. Amenities 1) Bike racks located on ground floor a. Comment - Is there a specific requirement for the number of bike racks required? b. Response - Provide storage to house a minimum of 8 -10 bikes. City will confirm quantity. c. 9/8/09 - Bike rack inclusion is not required. 2) Rinse off area for patrons located on ground floor a. Comment - There is a possibility to locate a rinse off area on the north side of the building along the walkway to the Stair Tower, would this be acceptable? b. Response - Location preference is on beach side. Will comment further once plans are received and reviewed. c. 9/8/09 - Rinse off area inclusion is not required. Exhibit J I IbS Attachment number 13 Page 10 of 15 Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 5 Architectural Provisions 1) Stairtowers/Elevator towers a. ADA compliant design and layout b. Enclosure at top level for elevator tower for weather protection i. Post Meeting - Finfrock shall confirm an enclosure is included for punch-thru stair at SW comer of top level. ii. 10/2/09 Finfrock Response - A standing seam metal roof will be provided over the stair. Updated Response - A standing seam roof structure without side glazing will be located over the SW stair, and will be added to the necessary elevations. c. Maximize openness within stairtowers for increased visibility i. Comment - This can not be accomplished on North Stairtower due to proximity of adjacent building. ii. Response - Provide maximum openness (actual opening or glazing) to greatest extent at both interior and exterior, where fire rating is not required. Will comment further once plans are received and reviewed. iii. 9/8/09 Discussion - Due to fire rating, no openings will be provided internal to the garage. Maximized openness will be provided to the exterior, where fire rating is not required. d. Include glass back elevators for increased visibility i. Comment - The elevator shaft is located in the interior of the building, which from a design standpoint would not benefit from the advantages of a glass back elevator (i.e. allow natural light to penetrate). In regard to security we will be including a CCTV system. ii. Response - Provide glass back openings for visibility within garage to increase passive security. iii. 9/8/09 Discussion - Elevator layout has been rotated with the elevator doors facing north, increasing visibility to the elevator lobby area. Post Meeting - Finfrock shall review drainage pattern for positive slope away from elevator shaft. e. Galvanized steel handrails i. Comment -We have included powder coated aluminum handrails. ii. Response - This is acceptable. f. Abrasive nosings cast into stair treads i. Comment - We do not include these on our stairs. Our stairs have been tested and been determined that to meet or exceed the requirements for slip- resistant surfaces in stairs. In addition, abrasive nosings can become a maintenance issue ii. Response - Provide information to confirm equal slip resistance is achieved. Provide sample of stair treads for review and approval. iii. 9/8/09 Discussion - Finfrock provided a friction test completed by PSI. This is found acceptable. g. Enclose bottom run of stairs at ground level to eliminate hiding places i. Comment -The exterior of the stair towers are enclosed at the ground level, however the space beneath the stairs inside the stairtowers is open. ii. Response - Enclose area below bottom run of stairs with CMU. Exhibit J Tim bs Attachment number 13 Page 11 of 15 Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30. 2009 Page 6 2) Elevators a. Hydraulic type, minimum of two cabs i. Comment - We are providing two machine-room-less traction elevators ii. Response - This is acceptable. b. Vandal resistance cab, hoistway, fixture finishes (i.e. textured stainless steel) c. Emergency call equipped d. Tied into the emergency power source i. Comment - No emergency power source included or required by Code. ii. Response - Confirm requirement for elevators serving structures 4 or more levels. iii. 9/8/09 Discussion - Confirmed requirement not included per FBC. Finfrock will investigate pricing for providing a generator. Action: Item open for further discussion. iv. 10/2/09 Finfrock Response - Finfrock has provided a cost to the Owner to provide a generator to power the following: All garage lighting, public corridor lighting, one elevator, point of sale; and half of all retail lighting. e. Durable floor system (i.e. continuous vinyl tile) 3) Signage a. Adequate wayfinding signage for both vehicles and pedestrians. b. Consider implementing a floor theme to aid patrons in remembering their vehicle location. c. Scotchlite reflective signs i. Comment - Reflective signs will be utilized where required. ii. Response - All wayfinding signs shall be reflective. Structural Provisions 1) Corrosion protection methods in line with ACI 362 2) Galvanized steel precast connections that are protected by grout or cast-in-place toppings or washes 3) Stainless steel precast connections (i.e. tee to tee) that are protected by sealant alone 4) Minimize exposed welded or bolted connections 5) Concrete slab-on-grade with tooled joints and vapor barrier beneath occupied areas 6) Tooled joints with sealants in cast-in-place toppings or washes Waterproofing Provisions 1) Expansion joints located at high points 2) Compressible filler material at vertical expansion joints between garage and stairtowers, such as an Emseal Colorseal product 3) Elastomeric deck coating above all occupied spaces and MEP rooms a. Comment - We have included an Auto-Gard polyurethane vehicular traffic deck coating produced by Neogard over all occupied spaces that carries a 10 year Joint and Several Warranty b. Response - This is acceptable for areas within the footprint of the garage. Exhibit 1 Tiahs Attachment number 13 Page 12 of 15 Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30. 2009 Page 7 4) Treat the exposed ramp as a plaza deck to provide increased waterproofing protection for occupied space below a. Comment - We have included an Auto-Gard polyurethane vehicular traffic deck coating produced by Neogard over all occupied spaces that carries a 10 year Joint and Several Warranty b. Response - Provide canopy or roof above exterior ramp to eliminate direct rainfall onto tees above occupied space, in addition to deck coating. Providing a warranty does not guarantee water leakage into the occupied space will not occur. c. 9/8/09 Discussion - Finfrock provided Autogard waterproofing product data utilized for a similar condition. Finfrock and City of Clearwater will further discuss addressing maintenance and potential leak repairs as part of the Maintenance Agreement. Action - Item open for further discussion. d. 10/30/09 TimHaahs Response - On October 15, 2009, TimHaahs visited the Publix parking garage in Fort Lauderdale to observe a deck coating applied above an occupied floor. It should be noted that the deck coating was located on the floor below the roof level. TimHaahs found it acceptable to utilize the deck coating provided that a flood test (i.e. 24 hour) shall be included in the specifications for final approval. Exhibit 1 TimWahs Attachment number 13 Page 13 of 15 Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 8 Plumbing Provisions 1) Cold water risers and hose bibs at each parking level for garage washdown 2) Sufficient slope on floor members and an adequate number of floor drains on all levels to negate any areas of water ponding 3) Floor drains used specifically for parking structures, such as Watts FD-900 epoxy coated models or equal a. Comment - Storm Drainage of the upper decks will utilize Slot Drains fastened below the double tee flange, with the entrance a %" wide joint between the double tee flanges. b. Response - Provide a conventional drain system use for parking structures in lieu of a gutter type system. Gutter type system poses maintenance concerns. c. 9/8/09 Discussion - Finfrock provided details for the typical tier and roof tier gutter system. A minimum gap of/" will be maintained for heel protection and Finfrock has remedial details to address a larger gap. Action - TimHaahs will visit locations in the MIA area containing installed gutters for evaluation. Item remains open. d. 10/30/09 TimHaahs Response - On October 15, 2009 TimHaahs visited the Mercy Hospital in Miami to observe the installed gutter drain system. The drainage system was found acceptable with the following provisions: i. Include regular cleaning of the drain slots as part of the routine maintenance program to ensure effectiveness of the system ii. At the top tier, joints will be sized accordingly to accommodate the rainfall and metal grates will be installed over larger joints. iii. Cleanouts in the steel gutter shall be provided for access. 4) Galvanized steel pipe guards for any exposed risers for bumper guard protection a. Comment - We will provide bumper guard protection of pipes as needed. b. Response - Bumper guards will be provided for all risers subject to vehicles. 5) Storm retention system shall be easily accessible for maintenance Fire Protection Provisions 1) Portable fire extinguishers as required by NFPA 10 Standard for Portable Fire Extinguishers 2) Fully sprinklered parking garage 3) Galvanized steel pipe guards for any exposed risers for bumper guard protection Electrical Provisions 1) Lighting levels a. Meet or exceed current minimum IES standards b. Parking/Drive aisles -10 fc (minimum average) i. Comment - We have provided 4 fc average, with a 10/1 Max/Min Ratio ii. Response - Provide a minimum of 5-6 fc average. c. Vehicular Entry/Exits - 50 fc (minimum average) i. Comment - Lighting will meet the requirements of IES RP-20 ii. Response - This is acceptable. Exhibit J Ti,hs Attachment number 13 Page 14 of 15 Ms. Tracey Bruch Surf Style/Brio's Parking Garage October 30. 2009 Page 9 d. Stairtowers/Lobby interiors/Ground level retail areas and corridors - 20 fc (minimum average) i. Comment - Lighting will meet the requirements of IES RP-20 ii. Response - This is acceptable. e. Provide additional lighting at any interior shearwalls i. Comment - Lighting will meet the requirements of IES RP-20 ii. Response - This is acceptable. f. Emergency lighting to meet Code requirements i. Response - Confirm provision for this requirement. See item 7 below. g. Provide photometrics of light levels listed above i. 9/8/09 Discussion - Finfrock will submit for review upon completion. ii. 10/2/09 Finfrock Response - Preliminary photometrics were submitted on 9/28/09 to the City of Clearwater and TimHaahs. Final Photometrics will be submitted during the Final Design Phase. 2) Lighting fixture a. Fluorescent type fixtures with uplight component i. Comment - Fixtures compliant with Sea Turtle Lighting Restrictions will be utilized. ii. Response - This is acceptable. iii. 9/8/09 - High pressure sodium fixtures will be utilized for compliance with Sea Turtle Lighting Restrictions. 3) Lighting control system a. Programmable lighting control system for time and date control of light fixtures b. Photocells for controlling perimeter lighting and vehicular entry/exit areas. 4) Receptacles a. Weather proof enclosed types located at each stairtower and elevator lobby, each level 5) Conduit a. No placement within expansion joints. b. Expansion capacity when crossing an expansion joint c. Exposed conduit on the exterior of the garage is not permitted 6) Security System a. Consider implementation of a CCTV system with camera placement on all levels of the parking garage, specifically at Stairtower locations and the ground level, specifically at the retail corridor and vehicular entry/exits. 7) Emergency Power a. Backup power (i.e. generator) for ground level occupancy, elevators, and lighting fixtures i. Comment - No emergency power source included or required by Code. ii. Response - FBC 1006.1 Means of Egress Illumination requires emergency lighting. Confirm means of providing backup power (i.e. battery, generator) Exhibit J TimHaahs Attachment number 13 Page 15 of 15 Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 10 iii. 9/8/09 Discussion -Separate "bug-eye" fixtures with individual batteries will provide emergency lighting. Maintenance of emergency fixtures shall be included in the Maintenance Agreement. b. 10/30/09 TimHaahs Response - Reference Architectural Provisions section 2d-iv for generator inclusion. Parking System Provisions 1) Pay-on-foot complete parking equipment system including barrier gates, ticket spitters, detector loops, pay stations (minimum of two), etc. 2) Adequate signage to inform patrons of the payment method to include signage locations throughout the parking garage on all floors and near the pay stations 3) Electronic signs at reversible lanes 4) Parking office including ADA compliance, HVAC conditioning, restroom, telephone, internet, customer service window, etc. Exhibit 1 T?rn&mbs Attachment number 14 Page 1 of 3 _ www.0inhaahs.com rimHaak' ENGINEERS ARCHITECTS TIMOTHY HAAHS & ASSOCIATES, INC. 10305 N.W 41" STREFT. SUITE 201 MIAMI, FL 33178 T.305-592-7123 F. 305-692-7113 January 20, 2010 OPERATIONAL MAINTENANCE SCHEDULE DESCRIPTION ACTION FREQUENCY ELECTRICAL SYSTEM Light Fixtures Inspect Monthl Relam As Required Exit & Emergency Inspect Monthly Lights Service As Required Distribution Panels Inspect Semi-Annually Electrical Conduit Inspect Semi-Annually Replace As Required SECURITY; EQUIPMENT Emergency Call Buttons Phones Inspect Weekly , Service As Required MECHANICAL EQUIPMENT Elevators Inspect Per Service Agreement - Define Timeframe Service Per Service Agreement - Define Timeframe Ventilation/Exhaust Inspect Monthly Fans Service Per Manufacturer's Recommendation Fire Protection Equip. Inspect Annually Replace As Required Landscape Irrigation System Inspect As Required Re air/Clean As Required Sump Pits, Storm Retention Manholes Inspect Annually , System And Drain Pits Re air/Clean As Required Other Mechanical Inspect Monthly Equipment (Including Generator) Service As Required GRAPHICS & FLOOR STRIPING Signs Inspect Semi-Annually Repair As Required Striping Inspect Semi-Annually Repair As Required CLEANING REQUIREMENTS Curtainwall, and Stairs Clean/Sweep Dail , Storefront Systems Washdown Semi-Annually Parking Area Sweep Weekly Floors Washdown Semi-Annually Expansion Joint Seals Clean Quarterly DRAINAGE Floor Drains Inspect Dail Clean Monthly Ponded Water Remove As Required INSPECTION Tripping Hazards Inspect And Safety Check Daily Comprehensive Walk-Through Perform Annually Exhibit K PLANNING ENGINEERING ARCHITECTURE dtIIG11 Attachment number 14 Page 2 of 3 Ms. Tracey Bruch Surf Style/Britt's Parking Garage January 20, 2010 Page 2 STRUCTURAL MAINTENANCE SCHEDULE DESCRIPTION ACTION FREQUENCY CONCRETE FLOOR SYSTEM Visual Inspection Perform Annually Delamination and/or Materials Testing Perform Annually Joint Sealant Inspect Semi-Annually Repair As Required Traffic Topping Inspect Semi-Annually Repair As Required Random Cracks Rout and Seal As Required BEAMS COLUMNS AND BUMPER WALLS Visual Inspection Perform Annually STAIR TOWERS Visual Inspection Perform Annually Storefront and Curtainwall System Inspect Annually JOINT SEALANT SYSTEMS Expansion Joints, Inspect Semi-Annually Construction Joints, Control Joints, and Traffic Deck Coating Replace Leaking Joints As Required; All Joints Every 8-12 Years EXPOSED STEEL Inspect Annually Clean and Paint As Required MASONRY Inspect Annually Clean As Required Apply Sealer Per Engineer's Recommendation BEARING PADS Inspect Annually INSPECTION Perform Annually By Structural Engineer Exhibit K rTenm"hS Attachment number 14 Page 3 of 3 Ms. Tracey Bruch Surf Style/Britt's Parking Garage January 20, 2010 Page 3 AESTHETIC MAINTENANCE SCHEDULE DESCRIPTION ACTION FREQUENCY GENERALAPPEARANCE Trash Pickup Dail General Cleaning Clean Weekly Windows Wash Quarterly LANDSCAPING Grass Mow Weekly Shrubs Trim As Required Trees Prune Annually PAINTED OR STAINED Inspect Semi-Annually SURFACES Touch Up Semi-Annually Clean and Re aint As Required ARCHITECTURAL SEALANTS Inspect Annually Replace Failed Joints As Required; All Joints Every 8-12 Years Exhibit K ' hs Attachment number 15 Page 1 of 23 PUT AGREEMENT (Surf Style Condominium - Parking Unit) THIS PUT AGREEMENT (Surf Style Condominium - Parking Unit) (the "Agreement") is made and entered into as of this day of , 20_, by and between , a "Lender"), and THE CITY OF CLEARWATER, corporation (the "City"). RECITALS: FLORIDA, a Florida (the municipal A. The City and L.O.M., Inc., a Florida corporation (the "Developer") have entered into that certain Agreement for Development of Property in the City of Clearwater (Surf Style Condominium Project) dated , 2010 (the "Development Agreement"). The Development Agreement sets forth the terms and conditions governing the development and construction of a 41,000+/- square foot retail/commercial project, including a parking garage containing approximately 349 parking spaces, of which 300 spaces will be open to the public (collectively, the "Project"), on certain real property located on South Gulfview Boulevard in the City of Clearwater, Florida, more particularly described in Exhibit A attached hereto (the "Pro a "). B. The Development Agreement contemplates that the Property will be submitted to the condominium form of ownership pursuant to Chapter 718 of the Florida Statutes and condominium documents in substantially the form attached to the Development Agreement as Exhibit D. The condominium will be known as "Surf Style Condominium" and will contain three (3) units, two (2) "Retail Units" and one (1) "Parking Unit", as defined and described in Section 2.3 of the Development Agreement. C. Pursuant to Section 6.01 of the Development Agreement, the City agreed to enter into a "put" agreement with Developer's lender providing construction financing for the Project, pursuant to which such lender would have the option to require the City to purchase the Parking Unit (defined below) under certain circumstances in the event it acquired title to the Project following an event of default by Developer. D. Contemporaneously herewith, Lender is making a loan to Developer to finance the development and construction of the Project (as amended, restated, assigned and renewed from time to time, the "Project Financing'). Lender has required as a condition to the closing of the Project Financing, inter alia, that the City agree to purchase the Parking Unit under certain circumstances in the event Lender acquires title to the Project under the Project Financing documents (through foreclosure, deed in lieu of foreclosure or otherwise) following an event of default by Developer under the Project Financing. E. This Agreement constitutes the (and satisfies the requirement for a) "put" agreement between Lender and the City as contemplated by the Development Agreement and the Project Financing documents, pursuant to which the City has agreed to purchase the Parking Unit from Lender, subject to and upon the terms and Exhibit L Item # 11 MIA 180, 691,006v7 2-8-10 Attachment number 15 Page 2 of 23 conditions hereinafter set forth. At a duly called public meeting on , 2010, the City Commission approved this Agreement and authorized and directed its execution by the appropriate officials of the City. Likewise, the appropriate shareholders, directors and/or officers of Lender have approved this Agreement and have authorized certain individuals to execute this Agreement on its behalf. NOW, THEREFORE, in consideration of the mutual covenants and promises herein set forth, the parties agree that the foregoing recitals are true and correct and further agree as follows: 1. Put Option. If, following the Completion Date (as defined in the Development Agreement) and prior to the date which is five (5) years following the completion of the Project (the "Put Trigger Deadline"), an event of default by Developer occurs under the Project Financing, Lender may require the City to purchase from Lender the parking unit delineated on Exhibit A-1 attached hereto (the "Parking Unit") in Surf Style Condominium, a Condominium, according to the Declaration of Condominium recorded or to be recorded in the Public Records of Pinellas County, Florida (as amended and supplemented from time to time, the "Declaration"), subject to the terms and conditions of this Agreement, including without limitation the "Put Conditions" (defined below). Lender shall exercise the foregoing right to "put" the Parking Unit to the City by written notice (the "Put Trigger Notice") to the City provided in accordance with paragraph 12 of this Agreement, provided that the Put Trigger Notice is sent to the City prior to the Put Trigger Deadline. The form of the Put Trigger Notice is attached hereto as Exhibit B. For purposes hereof, the Project shall be deemed complete when conditional or final certificate(s) of occupancy have been issued for the entire Project. The Parking Unit shall include an undivided interest in the common elements appurtenant thereto as described in the Declaration. Notwithstanding any provision in this Agreement to the contrary, the City's obligation to purchase the Parking Unit shall be subject to the following conditions (collectively, the "Put Conditions"): (a) Lender shall have acquired title to the Project through foreclosure, deed in lieu of foreclosure or otherwise following an event of default by Developer under the Project Financing documents; (b) A certificate of occupancy shall have been issued for the Parking Unit; (c) The Project shall have been submitted to the condominium form of ownership under Chapter 718 of the Florida Statutes and the Declaration shall have been recorded in the Public Records of Pinellas County, Florida; (d) The Parking Unit shall be substantially in the condition required under Exhibit J to the Development Agreement; and 2 Item # 11 MIA 180, 691,006v7 2-8-10 Attachment number 15 Page 3 of 23 (e) Lender shall provide written notice (the "Put Conditions Notice") to the City certifying that the Put Conditions set forth in clauses (a) through (d) above have been satisfied. The form of the Put Conditions Notice is attached hereto as Exhibit B-1 and shall be provided to the City in accordance with paragraph 12 of this Agreement. Lender and the City acknowledge and agree that this Agreement shall be null and void, and of no force and effect, if either Lender has not provided the Put Trigger Notice to the City by the Put Trigger Deadline or any of the Put Conditions are not met by the date which is six (6) years following completion of the Project (the "Put Outside Date"). 2. Purchase Price. The purchase price to be paid by the City to Lender for the Parking Unit is Nine Million Three Hundred Thousand and No/100 Dollars ($9,300,000.00) (the "Purchase Price"), subject to adjustments and prorations as provided herein. The proceeds of the Purchase Price will be applied by Lender to the principal balance of the Project Financing, and any fees, costs, interest, penalties and/or other charges or sums accrued thereon or due thereunder. 3. Terms of Payment. The Purchase Price shall be paid to Lender as follows: $ 9,300,000.00 approximately, in current funds at time of Closing, subject to adjustments as provided in paragraph 2 and subject to prorations and adjustments as hereinafter provided, to be paid by cashier's check or by wire transfer of federal funds. 9.300.000.00 Total Purchase Price, subject to adjustment as provided in paragraph 2. 4. Condition of Title. At the Closing, fee simple title to the Parking Unit shall be conveyed to the City by special warranty deed, subject to the following matters: (a) ad valorem real estate taxes for the year of Closing and subsequent years; (b) the Development Agreement (if still in effect); (c) the Declaration and other condominium documents; (d) the parking covenant contemplated by Section 2.03(3) of the Development Agreement; (e) the covenants, restrictions, easements and other exceptions specifically identified on Exhibit C attached hereto; (f) all laws, ordinances, regulations, restrictions, prohibitions and other requirements imposed by governmental authority, including, but not limited to, all applicable building, zoning, land use and environmental ordinances and regulations; (g) matters affecting the condition of title to the Property (or any part thereof) created by or with the written consent of the City; and (h) any other exceptions or matters recorded against the Property (or any part thereof) after the date of this Agreement with respect to the development, construction, operation and management of the Project (such as reservations, covenants, utility easements, reciprocal easement agreements and any amendments or supplements thereto) and which do not adversely affect the ownership or operation of the Parking 3 Item # 11 MIA 180,891,006v72-8-10 Attachment number 15 Page 4 of 23 Unit. Title to the Parking Unit will be conveyed to the City at Closing free and clear of any mortgage, lien or other encumbrance securing the Project Financing. 5. Closing. The closing (the "Closing") shall be held on the date which is sixty (60) days following the City's receipt of the Put Conditions Notice, provided that the City shall have no obligation to purchase the Parking Unit and close this transaction if the Put Conditions Notice is not delivered or Put Conditions are not met by the Put Outside Date as provided in paragraph 1 above. Closing shall take place at the offices of attorneys for Lender, , located at , Florida , or through an escrow with Lender's attorneys whereby Lender, the City and their attorneys need not be physically present at Closing and may deliver documents by courier or other means. (a) At Closing, Lender shall execute and deliver to the City the following Closing documents: (i) a special warranty deed in the form attached hereto as Exhibit D, subject only to the Permitted Exceptions (defined below); (ii) a customary and appropriate mechanic's lien affidavit, affidavit of exclusive possession, "gap" affidavit, and non-foreign affidavit and/or certificate pursuant to subparagraph 8(a)(iv) below; and (iii) appropriate evidence of Lender's formation, existence and authority to sell and convey the Parking Unit, including a partner or member consent, corporate resolution and/or such other evidence of authority and good standing (as appropriate) with respect to Lender as may be reasonably required by the title insurance company issuing title insurance covering the Parking Unit in favor of the City. (b) At Closing, Lender and the City shall each execute counterpart closing statements and such other documents as are reasonably necessary to consummate the transaction contemplated by this Agreement. 6. Prorations: Utilities. (a) Prorations Generally. Real estate and personal property taxes, costs and revenues and all other proratable items for the Parking Unit shall be prorated as of the date of Closing, except that all current, pending and/or levied condominium assessments or fees which were enacted, approved or originated prior to Closing shall be paid by Lender. The City shall pay assessments and fees levied after the Closing date. For purposes of this provision, the term "levied" shall mean when the Board of the Condominium Association or required Unit Owners or both have voted in accordance with Florida law and the Declaration to approve an assessment or fee. All capitalized terms used in this provision without 4 Item # 11 MIA 180,691,006x72-8-10 Attachment number 15 Page 5 of 23 definition in this Agreement shall have the meanings given to them in the Declaration. (b) Taxes. In the event real estate and personal property taxes for the year of Closing are unknown, the tax proration will be based upon the taxes for the prior year, and at the request of either party, the taxes for the year of Closing shall be reprorated and adjusted when the tax bill for such year is received and the actual amount of taxes is known. If the Parking Unit is included within the tax identification folio number for the balance of the Property at the time of Closing (or at the time of reproration hereunder), then, for purposes of allocating real estate taxes and assessments during the calendar year of Closing to the Parking Unit, the parties agree that the share of such real estate taxes and assessments attributable to the Parking Unit shall be equal to the product of (a) the aggregate real estate taxes and assessments determined to be due for the entire Property for the year of Closing, multiplied by (b) the percentage interest of common elements allocated to the Parking Unit under the Declaration. (c) Utilities. With respect to electricity, water and sewer services and other utilities (collectively, "Utilities"), the parties shall endeavor to have the respective companies providing the Utilities read the meters for the Utilities on or immediately prior to the Closing date. Lender shall be responsible for all charges based on such final meter reading, and the City shall be responsible for all charges relating to the Parking Unit thereafter. If such readings are not obtainable, then, until such time as readings are obtained, charges for all Utilities for which readings were not obtained shall be prorated as of the Closing date based upon the per diem rate obtained by using the last period and bills for such Utilities that are available. Upon the taking of a subsequent actual reading, such apportionment shall be adjusted and reprorated to reflect the actual per diem rate for the billing period prior to Closing and Lender or the City, as the case may be, shall promptly deliver to the other the amount determined to be due with respect to the Parking Unit upon such adjustment. To the extent Utilities are not separately metered to the Parking Unit, a fair and equitable portion of such Utilities shall be allocated to the Parking Unit (for the initial proration and any subsequent reproration) using the same the methodology for cost allocation of utilities between condominium units provided in the Declaration. The provisions of this paragraph shall survive the Closing. 7. Closing Costs. The Lender shall pay the cost of documentary stamps due on the special warranty deed and recording costs for the deed. The Lender shall be solely responsible for the cost of examining title and obtaining the title insurance policy update or report on the Parking Unit, and the premiums and any other related fees and costs for any owner's title insurance policies update and/or report. Each party shall pay its own legal fees except as provided in subparagraph 15(c) below. All other closing 5 Item # 11 MIA 180,691,006v72-8-10 Attachment number 15 Page 6 of 23 costs shall be apportioned in the manner customary for commercial for real estate transactions in Pinellas County, Florida. 8. Representations and Warranties. (a) Lender represents and warrants to the City and agrees with the City that each of the following statements is currently true and accurate and shall be true and accurate at the time of closing, and agrees that the City may rely upon each of the following statements: (i) Lender is a validly existing national banking association, and has all requisite power and authority to carry on its business as now conducted and to perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party. (ii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, each document contemplated or required by this Agreement to which Lender is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, Lender, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on Lender, or (iii) contravenes or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of Lender under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which Lender is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of Lender outstanding on the date of this Agreement. (iii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, each document contemplated or required by this Agreement to which Lender is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of Lender enforceable against Lender in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. 6 Item # 11 MIA 180,691,006v72-8-10 Attachment number 15 Page 7 of 23 (iv) Lender is not a "foreign person" within the meaning of the United States tax laws and to which reference is made in Internal Revenue Code Section 1445(b)(2). At Closing, Lender shall deliver to the City an affidavit to such effect, and also stating Lender's tax identification number. Lender acknowledges and agrees that the City shall be entitled to fully comply with Internal Revenue Code Section 1445 and all related sections and regulations, as same may be modified and amended from time to time, and Lender shall act in accordance with all reasonable requirements of the City to effect such full compliance by the City. (b) The City represents and warrants to Lender and agrees with Lender that each of the following statements is currently true and accurate and shall be true and accurate at the time of closing, and agrees that Lender may rely upon each of the following statements: (i) The City is a validly existing body corporate and politic of the State of Florida, and has all requisite power and authority to carry on its business as now conducted and to perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party. (ii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, each document contemplated or required by this Agreement to which the City is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the City, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the City, or (iii) contravenes or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the City under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the City is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the City outstanding on the date of this Agreement. (iii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, each document contemplated or required by this Agreement to which the City is or will be a party constitute, or when entered into will constitute, legal, 7 Item # 11 MIA 180, 691, 006v7 2-8-10 Attachment number 15 Page 8 of 23 valid and binding obligations of the City enforceable against the City in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (iv) The City will establish Capital Improvement Project 315-9xxxx (Surf Style Condominium - Parking Unit) and will transfer the amount of $9,300,000 to this project to be used only for the purposes expressly provided herein. The $9,300,000 project is earmarked for the purchase of the Parking Unit by the City under the terms and conditions of this Agreement during the term hereof. Accordingly, from and after the date of this Agreement throughout the entire term hereof, the City shall maintain the $9,300,000 balance in this project, and shall not spend any portion of such funds for any purpose (other than the purchase of the Parking Unit) for so long as the City's obligations under this Agreement remain in effect. The resolution of the City Commission approving this Agreement shall specifically approve the foregoing $9,300,000 project on the terms stated herein and direct the Office of Management and Budget to insure the reserve is maintained on all appropriate operating plans, budgets and accounts of the City. Notwithstanding any provision in this Agreement to the contrary, if the City breaches its obligations under this provision at any time during the term of this Agreement (whether before or after the date of the Put Conditions Notice), Lender shall have all rights and remedies available to it at law and in equity with respect to such breach, including without limitation the right to specific performance of the City's obligations hereunder. All of the foregoing representation and warranties shall be true and correct on the date of this Agreement and on the date of Closing. The provisions of this paragraph shall survive the Closing. 9. Default Provisions. The following default provisions shall apply to any default by a party under this Agreement after the date of the Put Conditions Notice: (a) City Default. In the event of a default by the City under this Agreement which is not cured within ten (10) days following written notice from Lender, Lender shall have the right to: (i) terminate this Agreement, whereupon the parties shall be released from all further obligations under this Agreement, except the obligations which by their express terms survive a termination, or, alternatively, (ii) seek specific performance of the City's obligations hereunder and/or any other equitable remedies, without thereby waiving damages. In addition to the foregoing, if the City defaults in the payment of any amount due to Lender hereunder, then such unpaid 8 Item # 11 MIA 180,691,006x72-8-10 Attachment number 15 Page 9 of 23 amount shall accrue interest at the per annum rate of eighteen percent (18%) accruing from the date of such default. (b) Lender Default. In the event of a default by Lender under this Agreement which is not cured within ten (10) days following written notice from the City, the City at its option shall have the right to: (i) terminate this Agreement, whereupon the parties shall be released from all further obligations under this Agreement, except the obligations which by their express terms survive a termination, or, alternatively, (ii) seek specific performance of Lender's obligations hereunder and/or any other equitable remedies, without thereby waiving damages. 10. Brokers. The parties each represent and warrant to the other that they have not dealt with any real estate broker, salesman or finder in connection with this transaction. If a claim for brokerage in connection with the transaction is made by any broker, salesman or finder claiming to have dealt through or on behalf of one of the parties hereto ("Indemnitor"), Indemnitor shall indemnify, defend and hold harmless the other party hereunder ("Indemnitee"), and Indemnitee's members, shareholders, partners, officers, directors, employees, agents and representatives, from all liabilities, damages, claims, costs, fees and expenses whatsoever (including reasonable attorney's fees and court costs at trial and all appellate levels) with respect to said claim for brokerage. The provisions of this paragraph shall survive the Closing and any cancellation or termination of this Agreement. 11. Assignability. The City shall not be entitled to assign this Agreement, or its rights or obligations hereunder, without the prior written consent of Lender, which may be granted or withheld in Lender's sole discretion. Lender shall be entitled to freely assign this Agreement (including all of its rights and obligations hereunder) without restriction; provided, however, that the assignee shall assume all obligations of Lender hereunder. 12. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by facsimile transmission, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: 9 Item # 11 MIA 180, 691, 0060 2-8-10 Attachment number 15 Page 10 of 23 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: With a copy to: Attn: _ Fax No. Attn: _ Fax No. Notices personally delivered, sent by facsimile transmission or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails. Each party shall be entitled to change its address for notices from time to time by delivering to the other party notice thereof in the manner herein provided for the delivery of notices. 13. Risk of Loss. If, between the date of the Put Conditions Notice and Closing, the Parking Unit or any portion thereof is damaged or destroyed by fire or other casualty or taken by eminent domain, Lender shall promptly repair and restore the Parking Unit to the same condition as existed before the fire or casualty and Closing shall be deferred for a commensurate period of time to permit such repair and restoration. In such event, Closing shall be rescheduled to the date which is ten (10) days following the restoration of the Parking Unit to the condition that existed immediately prior to the damage or taking (or as close to such condition as possible, in the case of eminent domain) and issuance of a new certificate of occupancy for the Parking Unit (if such restoration requires same). In the case of eminent domain, at Closing, the City shall be entitled to all condemnation awards for the Parking Unit, less any portion thereof used to restore the Parking Unit to the condition required herein. 14. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state 10 Item # 11 MIA 180,691,006v7 2-8-10 Attachment number 15 Page 11 of 23 guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department. 15. Miscellaneous. (a) This Agreement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. (b) In the event any term or provision of this Agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. (c) In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. The provisions of this subparagraph shall survive the Closing coextensively with other surviving provisions of this Agreement. (d) In construing this Agreement, the singular shall be held to include the plural, the plural shall include the singular, the use of any gender shall include every other and all genders, and captions and paragraph headings shall be disregarded. Handwritten or typewritten provisions initialed by Lender and the City shall prevail over any conflicting printed provisions of this Agreement. (e) All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. (f) Time shall be of the essence for each and every provision hereof. (g) If any date upon which, or by which, action required under this Agreement is a Saturday, Sunday or legal holiday recognized by the Federal government, then the date for such action shall be extended to the first day that is after such date and is not a Saturday, Sunday or legal holiday recognized by the Federal government. (h) This Agreement constitutes the entire agreement between the parties and there are no other agreements, representations or warranties with respect to the subject matter hereof other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by City and Lender. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. 11 Item # 11 MIA 180,691,006v72-8-10 Attachment number 15 Page 12 of 23 (i) This Agreement may be executed in multiple counterparts each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURES ON FOLLOWING PAGE(S)] 12 Item # 11 MIA 180,691,006V7 2-8-10 Attachment number 15 Page 13 of 23 EXECUTED as of the date first above written. WITNESSES: Cynthia Goudeau, City Clerk a Print Name: Print Name: Attest: By: Approved as to form: Pamela K. Akin City Attorney LENDER: By: _ Name: Title CITY: THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: Frank V. Hibbard, Mayor 13 Item # 11 MIA 180,691,006v72-8-10 Attachment number 15 Page 14 of 23 EXHIBIT A LOM PROPERTY PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82'1 5'44"E a distance of 35.00 feet to the Point of Beginning. Item # 11 Attachment number 15 Page 15 of 23 EXHIBIT A-1 Delineation of Parking Unit The "Unit" delineated as the "Parking Unit" in the Declaration. Item MIA 180,691,006v7 2-8-10 # 11 Attachment number 15 Page 16 of 23 EXHIBIT B Form of Put Trigger Notice [INSERT LETTERHEAD OF LENDER] 20_ VIA F 1 City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager Fax. No. City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Attorney Fax No. Re: Put Trigger Notice under Put Agreement (Surf Style Condominium - Parking Unit) dated -,20 _ (as amended, modified, assigned and supplemented from time to time, the "Put Agreement") by and between , its successors and assigns (the "Lender"), and the City of Clearwater, Florida, a Florida municipal corporation (the "City") Dear Sir or Madam: Please accept this letter as Lender's official notice to the City that an event of default has occurred under the Project Financing documents and Lender hereby elects to "put" the Parking Unit to the City. This Put Trigger Notice is being provided to the City in accordance with the terms and conditions of the Put Agreement, including, without limitation, the requirement for delivery of the Put Trigger Notice prior to the Put Trigger Deadline under paragraph 1 thereof. Please acknowledge the City's receipt of this Put Trigger Notice by signing the acknowledgment below and returning the original to my attention as soon as possible. Please note that capitalized terms not defined herein shall have the meanings provided in the Put Agreement. If you have any questions or wish to discuss the Closing, please contact me. Sincerely, [insert signature block for Lender] By: Name: Title: [Acknowledgment On Next Page] Item MIA 180,691,006v7 2-8-10 # 11 Attachment number 15 Page 17 of 23 Agreed and Accepted on this - day of , 20_ Attest: By: , City Clerk Approved as to form: , City Attorney THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: Mayor Item MIA 180,691,006x72-8-10 # 11 Attachment number 15 Page 18 of 23 EXHIBIT B-1 Form of Put Conditions Notice [INSERT LETTERHEAD OF LENDER] 20_ VIA j 1 City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager Fax. No. City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Attorney Fax No. Re: Put Conditions Notice under Put Agreement (Surf Style Condominium - Parking Unit) dated _, 20_ (as amended, modified, assigned and supplemented from time to time, the "Put Agreement") by and between , its successors and assigns (the "Lender"), and the City of Clearwater, Florida, a Florida municipal corporation (the "City") Dear Sir or Madam: As you know, Lender exercised its right to "put" the Parking Unit to the City by that certain Put Trigger Notice dated , 20_. This Put Conditions Notice is being provided to the City in accordance with the terms and conditions of the Put Agreement, including, without limitation, the requirement for delivery of the Put Conditions Notice prior to the Put Outside Date. As required under paragraph 1 of the Put Agreement, Lender hereby certifies that all of the Put Conditions in the Put Agreement have been met before the Put Outside Date. Accordingly, the closing for the Parking Unit shall occur within sixty (60) days following the City's receipt of this Put Conditions Notice and the parties shall close on the purchase and sale of the Parking Unit, subject and pursuant to the terms and conditions provided in the Put Agreement. Please acknowledge the City's receipt of this Put Conditions Notice by signing the acknowledgment below and returning the original to my attention as soon as possible. Please note that capitalized terms not defined herein shall have the meanings provided in the Put Agreement. If you have any questions or wish to discuss the Closing, please contact me. Sincerely, [insert signature block for Lender] By: Name: Title: Item # 11 [Acknowledgment On Next Page] Attachment number 15 Page 19 of 23 Agreed and Accepted on this - day of Attest: By: , City Clerk Approved as to form: City Attorney THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: , Mayor MIA 180,691,006v72-8-10 Item # 11 Attachment number 15 Page 20 of 23 EXHIBIT C Existing Title Exceptions 1. Rights, if any, of the public to use as a public beach or recreation area any part of the land lying between the body of water abutting the subject property and the natural line of vegetation, bluff, extreme high water line, or other apparent boundary line separating the publicly used area from the upland private area. 2. Rights of the State of Florida based on the doctrine of the state's sovereign ownership of lands lying below the mean high water line of any navigable or tidally influenced waters. 3. Rights of the United States government, arising by said government's control over navigable waters involving navigation and commerce, with respect to any portion of the Property which is artificially filled land in what was formerly navigable waters. 4. Coastal Construction set back line as established by Section 161.052 and Section 161.053, Florida Statutes. 5. Easements, claims of easements, boundary line disputes, overlaps, encroachments or other matters not shown by the public records which would be disclosed by an accurate survey of the Property. Item MIA 180,891,008v72-8-10 # 11 Attachment number 15 Page 21 of 23 EXHIBIT D Form of Special Warranty Deed THIS INSTRUMENT PREPARED BY (OR UNDER THE SUPERVISION OF) AND AFTER RECORDING SHOULD BE RETURNED TO: NAME: ADDRESS: (SPACE RESERVED FOR CLERK OF COUR1) Tax Folio No.: [a portion of] SPECIAL WARRANTY DEED THIS SPECIAL WARRANTY DEED is made and entered into as of the day of 20 by whose mailing address is ("Grantor"), to THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation, whose mailing address is 112 S. Osceola Avenue, Clearwater, Florida 33756, Attn: City Manager ("Grantee"). Wherever used herein, the terms "Grantor" and "Grantee" shall include all of the parties to this instrument and their successors and assigns. WITNESSETH: GRANTOR, for and in consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has granted, bargained and sold, and by these presents does hereby grant, bargain and sell to Grantee and Grantee's successors and assigns forever, the following described land situate and being in Pinellas County, Florida (the "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. THIS CONVEYANCE is subject to: (a) taxes and assessments for the year 20_ and all subsequent years; (b) all laws, ordinances, regulations, restrictions, prohibitions Item # 11 MIA 180, 691, 006v7 2-8-10 Attachment number 15 Page 22 of 23 and other requirements imposed by governmental authority, including, but not limited to, all applicable building, zoning, land use and environmental ordinances and regulations; (c) conditions, restrictions, limitations and easements of record, if any, but this reference shall not operate to reimpose same; and (d) Parking Covenant dated 20_ and recorded in Official Records Book , Page of the Public Records of Pinellas County, Florida. TO HAVE and to hold the same in fee simple forever. GRANTOR hereby covenants with Grantee that it is lawfully seized of the Property in fee simple, that it has good right and lawful authority to sell and convey the Property, that it hereby specially warrants the title to the Property and will defend the same against the lawful claims of all persons claiming by, through or under Grantor, but against no others. IN WITNESS WHEREOF, Grantor has hereunto set its hand and seal as of the day and year first above written. Signed, sealed and delivered in the presence of: [insert signature block for Grantor], a Print Name: Print Name: STATE OF COUNTY OF )ss: By:_ Name: Title: The foregoing instrument was acknowledged before me this 20- by , as ,a of the bank. He is personally known to me or has produced as identification. My commission expires: _ day of of on behalf Name: Notary Public, State of Florida Commission No. [Notarial Seal] Item MIA 180,691,006v72-8-10 # 11 Attachment number 15 Page 23 of 23 MIA 180,691,006v72-8-10 Item # 11 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Approve amendments to the Community Development Code amending side setback standards for commercial or multi-use docks on non-residentially zoned property adjacent to residentially zoned property, and Pass Ordinance 8132-10 on first reading. (TA2009- 12009) SUMMARY: City Council requested staff prepare a text amendment to amend the required side setbacks for commercial and multi-use docks located on non-residentially zoned property adjacent to waterfront residentially zoned property. This proposed amendment states that if a commercial or multi-use dock is constructed on a non-residentially zoned property that is adjacent to a waterfront residentially zoned property, the required side setback adjacent to the residentially zoned property will be a minimum of twenty percent of the applicant's waterfront property width. This provides for greater separation between commercial or multi-use docks and residential properties by increasing the existing side setback provisions for this subset of commercial docks from ten percent. The remainder of the existing setback standards was restructured to provide additional clarity and consistency when reviewing applications. Ordinance 8132-10 and the staff report contain further analysis and information on the proposed amendments. The Community Development Board (CDB) reviewed the proposed text amendment at its meeting of January 19, 2010. The Board unanimously recommended the amendment for approval. Review Approval: 1) Legal 2) Clerk 3) Assistant City Manager 4) Clerk 5) City Manager 6) Clerk Cover Memo Item # 12 Attachment number 1 Page 1 of 3 ORDINANCE NO. 8132-10 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, MAKING AMENDMENTS TO THE COMMUNITY DEVELOPMENT CODE; AMENDING ARTICLE 3, DEVELOPMENT STANDARDS, SECTION 3-601. TO AMEND SIDE SETBACK STANDARDS FOR COMMERCIAL OR MULTI-USE DOCKS ON NONRESIDENTIALLY ZONED PROPERTY ADJACENT TO RESIDENTIALLY ZONED PROPERTY; CERTIFYING CONSISTENCY WITH THE CITY'S COMPREHENSIVE PLAN AND PROPER ADVERTISEMENT; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Clearwater adopted a new Community Development Code on January 21, 1999 which was effective on March 8, 1999, and WHEREAS, the City of Clearwater desires for the Community Development Code to function effectively and equitably throughout the City, and WHEREAS, it has been determined that limited and reasonable restrictions on the dimensional standards for commercial docks are in the public interest, and WHEREAS, the City of Clearwater has determined where the Community Development Code needs clarification and revision, and WHEREAS, the City Council has fully considered the recommendations of the Community Development Board and testimony submitted at its public hearing; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section 1. Section 3-601., Community Development Code, is amended to read as follows: Section 3-601. Docks. C. New docks. Ordinance No.IfM24012 Attachment number 1 Page 2 of 3 h. Dimensional standards. i) Setbacks for commercial and/or multi-use docks shall be as follows: a) If the commercial or multi-use dock is located adiacent to a waterfront property occupied by a detached dwelling or two-unit attached dwelling use and the use of said property conforms to the zoning district, the setback adjacent to the residential property line as extended into the water shall be a minimum of one-third of the applicant's waterfront property width measured from the side property lines; b) If a commercial or multi-use dock located on non-residentially zoned property is adjacent to any waterfront residentially zoned property, the setback adjacent to the residentially zoned property line as extended into the water shall be a minimum of twenty percent of the applicant's waterfront property width measured from the side property lines; c) In all other circumstances, commercial and multi-use docks shall be located so that the setback from any property line as extended into the water shall be a minimum of ten percent of the applicant's waterfront property width measured from the side property lines. Section 2. Amendments to the Community Development Code of the City of Clearwater (as originally adopted by Ordinance No. 6348-99 and subsequently amended) are hereby adopted to read as set forth in this Ordinance. Section 3. The City of Clearwater does hereby certify that the amendments contained herein, as well as the provisions of this Ordinance, are consistent with and in conformance with the City's Comprehensive Plan. 2 Ordinance No. EMM4012 Attachment number 1 Page 3 of 3 Section 4. Should any part or provision of this Ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the Ordinance as a whole, or any part thereof other than the part declared to be invalid. Section 5. Notice of the proposed enactment of this Ordinance has been properly advertised in a newspaper of general circulation in accordance with applicable law. Section 6. This ordinance shall take effect immediately upon adoption. PASSED ON FIRST READING PASSED ON SECOND AND FINAL READING AND ADOPTED Approved as to form: Leslie K. Dougall-Sides Assistant City Attorney Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk 3 Ordinance No. &tbt$ #012 Attachment number 2 Page 1 of 3 CDB Meeting Date: Case Number: Ordinance Number: Agenda Item: January 19, 2010 TA2009-12009 8132-10 EE_1 CITY OF CLEARWATER PLANNING DEPARTMENT STAFF REPORT COMMERCIAL/MULTI-USE DOCK SETBACKS AMENDMENT REQUEST: Amendments to the Community Development Code (Ordinance No. 8132-10) to amend side setback standards for commercial or multi-use docks on nonresidentially zoned property adjacent to residentially zoned property. INITIATED BY: City of Clearwater Planning Department BACKGROUND: City Council requested that staff prepare a text amendment to amend the required side setbacks for commercial docks located on non-residentially zoned property adjacent to waterfront residentially zoned property. The proposed concept was presented to City Council for discussion on November 30, 2009. At that time, staff was instructed to prepare an ordinance incorporating the proposed language. ANALYSIS: This amendment proposes an additional standard addressing setbacks for commercial and/or multi-use docks, to be applied to those properties located on non-residentially zoned property that are adjacent to any waterfront residentially zoned property. If a commercial or multi-use dock is constructed on such a property, the required side setback adjacent to the residentially zoned property will be a minimum of twenty percent of the applicant's waterfront property width. This provides for greater separation between commercial or multi-use docks and residential properties by increasing the existing side setback provisions for this subset of commercial docks from ten percent. The remainder of the existing setback standards was restructured to provide additional clarity and consistency when reviewing applications. Community Development Board - January 19, 2010 TA2009-12009 -Page 1 Item # 12 Attachment number 2 Page 2 of 3 CRITERIA FOR TEXT AMENDMENTS: Community Development Code Section 4-601 sets forth the procedures and criteria for reviewing text amendments. All text amendments must comply with the following: 1. The proposed amendment is consistent with and furthers the goals, policies and objectives of the Comprehensive Plan. A review of the Clearwater Comprehensive Plan identified the following Goal and Policy which will be furthered by the proposed Code amendments: Goal A.3 The City of Clearwater shall ensure that all development or redevelopment initiatives meet the safety, environmental and aesthetic needs of the City through consistent implementation of the Community Development Code. Policy A.6.7.1 Encourage the preservation of recreational and commercial working waterfronts and marinas and other water-dependent facilities. Findings The proposed amendments are consistent with the Comprehensive Plan. Providing additional separation between residential and commercial dock uses ensures that safety, environmental and aesthetic needs pertaining to waterfront property will be met. These standards will also encourage the preservation of recreational and commercial working waterfronts and marinas and other water-dependent facilities by minimizing conflicts between competing uses. 2. The proposed amendment furthers the purposes of the Community Development Code and other City ordinances and actions designed to implement the Plan. The proposed text amendment will further the purposes of the Community Development Code in that it will be consistent with the following purposes set forth in Section 1-103: Ensuring that development and redevelopment will not have a negative impact on the value of surrounding properties and wherever practicable promoting development and redevelopment which will enhance the value of surrounding properties (CDC Section I- 103.B.2). Protect and conserve the value of land throughout the city and the value of buildings and improvements upon the land, and minimize the conflicts among the uses of land and buildings (CDC Section 1-103.E. 3). Coordinate the provisions of this Development Code with corollary provisions relating to parking, fences and walls, signs, minimum habitable area and like supplementary requirements designed to establish an integrated and complete regulatory framework for the use of land and water within the city (CDC Section 1-103.E.12). Community Development Board - January 19, 2010 TA2009-12009 - Page 2 Item # 12 Attachment number 2 Page 3 of 3 Findings These amendments are consistent with the Community Development Code because establishing greater separation between commercial docks and residential properties will preserve the value of land and buildings, while the changes in language to the existing provisions will serve to enhance the regulatory framework of the City. SUMMARY AND RECOMMENDATION: The proposed amendments to the Community Development Code are not inconsistent with the goals of the Clearwater Comprehensive Plan and the purposes of the Community Development Code. Based upon the above, the Planning Department recommends APPROVAL of Ordinance No. 8132-10 that amends the Community Development Code. Prepared by Planning Department Staff: ATTACHMENT: ? Ordinance No. 8132-10 Lauren Matzke, Planner III S: (Planning Department) Community Development Code12009 Code Amendments)TA2009-12009 - Commercial Dock SetbackslStaff Reports lOrdinance No 8132-10 CDB StaffReport 2010 01-19.Doc Community Development Board - January 19, 2010 TA2009-12009 - Page 3 Item # 12 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Appoint Robert J. Entel as a citizen representative to the Public Art and Design Advisory Board 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: 3 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 2" d 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 Item # 13 Current Categories: 1 Architect 2 Citizens Clearwater Arts Foundation Review Approval: 1) Clerk Cover Memo Item # 13 Attachment number 1 Page 1 of 2 Name: CITY OF CLEARWATER - APPLICATION FOR ADVISORY BOARDS (must be Clearwater resident) b, -f -:5- :??ge- /t r4 • n . Home Address: szi 4li 1-2 gly 4p Z- zip ?L ???G 7 Telephone: 7Z 7 317-7 How long a resident of Clearwater? Occupation: Field of Educa ion: . Office Address: // r7 6 0/-H/,0 /o 3 G zip 17 7 1 -6 Telephone: 72,7 1"1 (-3711 Employer: ?S'z Other Work Experience: tY GL/ ,WId? 5 cwj? If retired, former occupation: . C Community Activities: &'7444 F^ < L 1?--?*?? ??'n?-'ma'y `'" ??? Other Interests: Board Service (current and past): Board Preference: 74 '0,4.4e?7 l J n Additional Comments: A* 1 V Date: 7,v Ll 0 See attached list'for boards that require financial disclosure at time of appointment. Please return this application and board questionnaire to the Official Records & Legislative Services Department, P. O. Box 4748, Clearwater, FL 33758-4748, or drop off your application at City Hall, 2nd Floor, 112 S. Osceola Avenue. RECEIVED JAN 212010 OFFICIAL. RECORDS ? 13 LEGISLATIVE SRVCI?? Attachment number 1 Page 2 of 2 BOARD QUESTIONNAIRE 1. What is your understanding of the board's duties and responsibilities? J7 W`rV?G?jG ?%!//. ??? ?L ?G??????a;;?? 9_.l???/? -v -G/ ?i1T?! ??'? fi?`y(,?G•GriLG/?i?Z! ?+e ?iC.?" G..????-?lG Gf?r?i?f 2. Have you ever observed a board meeting eit r in person or on C-View, the City's TV station? 3. What background and/or qualifications do you have that you feel would qualify you to serve on this Board? l r??t nc7? L v 70'G ?Gy .!% i?Zr/f?l ?-7 L??' w•? Name: ht/? ,T Gr,7 .?? r! •/> Board Name: Item # 13 4. Why do you want to serve on this Board? Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Authorize instituting a civil action on behalf of the City against Hawkins Construction, Inc. to seek to obtain payment for services rendered by Clearwater's Public Utilities Department/Water Division. (consent) SUMMARY: On July 15, 2008, the City's Water Division installed a 6-inch gate valve and 6-inch offset over a storm pipe on property owned by Hawkins Construction, Inc. (Hawkins), located at 24756 U.S. 19, Clearwater. On August 11, 2008, due to a conflict with a new storm system Hawkins had installed, the City's Water Division installed a new water tap and a new 48-inch hydrant to resolve the conflict between Clearwater's domestic water main pipe and Hawkins' storm system. On August 26, 2008, the City's Public Utilities Department sent an invoice totaling $6,710.78 for the above referenced services rendered on behalf of Hawkins. The City has made numerous attempts to collect the monies owed by Hawkins for the services performed, without success. The costs relative to this actions will include a $295.00 filing fee and a fee for service of process of approximately $200.00. Type: Operating Expenditure Current Year Budget?: Yes Budget Adjustment Comments: Current Year Cost: Not to Exceed: For Fiscal Year: Appropriation Code 010096005480005140000000 $495.00 10/1/2009 to 9/30/2010 Amount $495.00 Budget Adjustment: None Annual Operating Cost: Total Cost: $495.00 Appropriation Comment Review Approval: 1) Office of Management and Budget 2) Legal 3) Legal 4) Office of Management and Budget 5) Legal 6) Clerk 7) Clerk Cover Memo Item # 14 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Authorize a civil action on behalf of the City against Nancy L. Downey to seek to recover costs and expenses to repair a CPD vehicle which sustained damage due to an automobile accident caused by the driver of Ms. Downey's vehicle. (consent) SUMMARY: 1) On July 27, 2008, a CPD vehicle was damaged due to an accident caused by Alex Colon, who was driving a vehicle owned by Nancy L. Downey. Repair to the damaged CPD vehicle cost the City $950.11. 2) Numerous attempts by the City to obtain payment from Nancy L. Downey for the necessary repairs to the CPD vehicle have been unsuccessful. The Legal Department requests authority to bring a legal action against Nancy L. Downey to recover expenses and costs incurred by the City to repair the damaged CPD vehicle. The costs relative to this action will include a $175.00 filing fee, and fees for service of process of approximately $60.00. Type: Operating Expenditure Current Year Budget?: Yes Budget Adjustment Comments: Current Year Cost: Not to Exceed: For Fiscal Year: $235.00 10/01/2009 to 09/302010 Budget Adjustment: None Annual Operating Cost: Total Cost: $235.00 Appropriation Code Amount Appropriation Comment 010096005480005140000000 $235.00 Review Approval: 1) Office of Management and Budget 2) Legal 3) Clerk 4) Clerk Cover Memo Item # 15 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Adopt Ordinance No. 8131-10 on second reading, amending sections of Chapter 32, Code of Ordinances, relating to roll-off container regulations. SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 16 Attachment number 1 Page 1 of 5 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, 20137 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 Ordinance No. 8131tetO # 16 Attachment number 1 Page 2 of 5 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. 2 Ordinance No. 8131-10 Item # 16 Attachment number 1 Page 3 of 5 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 is nhapte.r shall net prehihit a private r-eIlee waste receptacle . Th??,? holding a permit frem the planing aRd sePVining Fell eff r-Aptaincraers fer ?vr ? Hernial oar! M.Rd..stria., Gelid e?j??er! by the that the pity Flees net nheese to nellent oad appreves far nellentien by ei itsirde G--G)ntr?t-.-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 rdiVisien far persons er nempanies planing nr ?epiining Fell off nentaineFGwhp-ther i ed ppercFinaR ntl?T mp?era Fiily ?niithin the C7 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 3 Ordinance No. 8131-10 Item # 16 Attachment number 1 Page 4 of 5 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. ngpios gf all ng (7)Be b ntrants yr g p Sgr tho sopiining y nr planing of rgll eff nr_ntainP rG gr yV AG tP YVithin Oho Cit of _. _ pi irpgsos G Clearwater _ the Git RI y hall FeXis?g . private oopiining nGntrants fgr Oho romaip Y, dpr Af th° s g r-Aptrant t°rm Ar fgr fiup. (5) ofBoni itign w m the e d to ears frg hichever shg rter previd that - - - c , y t°T ?T?^azr °^ cP r , ?rivc cr prv v?cr 0-unh ngntrant gr gptign was r ffont g r n gr h r o li lne 4200ti m i plinant is unable to prg eGGpios gf ngntrants gr Gpt GRs, as requ red by this sontign applinant shall ho ineligib le to ebtain a permit {8}1LDisclose 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. 4 Ordinance No. 8131-10 Item # 16 Attachment number 1 Page 5 of 5 (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 after such date. N-9 Permit droll ho issued after all rmitoo'c nnntrontc Vr nn-- z^?.gi°n?icrv-or-P pllaGe-relll A-ffr__A_n?TP_.r6 onr!/nr ?N-AStP_ PP-GptaGleS I.Uithin the City ef Clcarwatrcrrhrav°czor or! nr ci inh nnntrontc nooco to ho onfnrnoohlo Section 6. City is hereby directed to place this ordinance on the agenda within one year for the purpose of reviewing private hauler compliance with the permitting and regulatory requirements. Section 7. This ordinance shall take effect immediately upon adoption. PASSED ON FIRST READING AS AMENDED PASSED ON SECOND AND FINAL READING AND ADOPTED Approved as to form: Camilo A. Soto Assistant City Attorney Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk 5 Ordinance No. 8131-10 Item # 16 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Adopt Ordinance No. 8133-10 on second reading, amending and repealing portions of Chapter 14, Code of Ordinances, regarding elections. SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 17 Attachment number 1 Page 1 of 4 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 14.04 TO AMEND THE REQUISITE TIME FRAMES FOR PUBLICATION OF NOTICE OF GENERAL ELECTIONS; 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, 14.847 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. Ordinance No. IIM84017 Attachment number 1 Page 2 of 4 (3) The election for seats 4 and 5 shall be held in I QW 2010 and every +h? fourth year thereafter, and the election for seats 1, 2, and 3 shall be held in 4$92 2012 and every third- fourth year thereafter. Sec. 14.04. Notice of elections. (2) Notice of all regular elections shall be published in a daily newspaper of general circulation in the city stating what offices and vacancies, if any, are to be filled at such election. Such notice shall be published once a week fer within the two week- period immediately preceding the election, the first such notice to be published not less than twelve days prior to the election and the second such notice to be published not less than five days prior to the election. Sec. 14.07. Poll watchers. All candidates shall be permitted to have en^ yV"+^h^r ^r,IIi^^ FGGR such poll watchers as are designated in F.S. § 101.131{2 Sec. 14.22. Composition. Each election board shall be composed of GlerL aRd a poll deputy, all ^f Wh^m chAll such persons having the characteristics, and possessinn 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 ^f C e nho ao n4, ar,d na ar,d ^^00^r,6 ^f C e 2 Ordinance No.11MB-4017 Attachment number 1 Page 3 of 4 Ghs. 99, 1 (Vl 101, anaRd 102, a detailed listing of whinh shall be preyided by the nit., nlerrl" nr ni+., a++erne., +e eanh nandlidla+e all or portions of the following F.S. chs.: 97-102, 104, 11 and 106. Sec. 14.83. Procurement of voting system; Testing. The nal°rlall h_AVe theVno+insJtM eg6lipMen+ at the prr?per Pe"inn plane rs re the tim?x?q f the polls aRd OR `'`1`^n?n"1 ^ geed aRd prnper eraor fneat p rhall take plUane shall hcer he ir.,ecri n to eanh nand?id Ate At thei c time of ?urr rrr???n--cam a-rnT?vr Cnllng eanh test prnnedli ire the test rest i shall he sealge rest alts of si inh the Git?P_Fk All r,an-n?ertifinatinn shaleaGnn ned in the previded 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. ?cGR, the pity Gl r?L,as?iSted by -4 At avast 20days pry°_rate-A-f _AR P_I _Gti 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. 'AA eanPrhrGl?e?nti here .,no+inn d used, a tab notion report of the resi it+s ,aassiRg heardi and! filed! with the mini rtes The county shall he prn.,idledca ! t cv o the ?rrn.v ?a an --?rr? 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: 3 Ordinance No.11MB-4017 Attachment number 1 Page 4 of 4 Sec. 14.06. Reserved. GG RtiRg absentee hallo+S Sec. 14.84. Reserved. AI"mhor of i ini+S req iirod The Git nleFk Shall a r?rmin o +hr, ' ni imhor of VGtinn rl n ho 1 ISP d in AG WI A y - - - . and the +radi+ienal pie+ing pa++ er?? iniSh the ni imher of of eanh preninn+ AAcj "II f 'r ?r ? .m?rrc-r-rrrs?: r-vr } N' `. G Gt. Sec. 14.87. Reserved. n, ,ties of Pion+ien hA;;r& n+ien hearr! The el of eanh p9Iling plane Shall arrive at the polling plane ene hei it e h re + m Se+ f? h9 ti P p ening of the pnllc Small arrange the palling ploee aRGI 1 rs . . _ p Ines+ri in+ieps fer D^II Wt:)rli orS aS pFGVided b Si iper?iiSer f elen+ienS the ngi in+v o y Section 3. This ordinance shall take effect immediately upon adoption. PASSED ON FIRST READING PASSED ON SECOND AND FINAL READING AND ADOPTED Approved as to form: Leslie K. Dougall-Sides Assistant City Attorney Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk 4 Ordinance No.11MB-4017 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Adopt Ordinance No. 8146-10 on second reading, deleting provisions of Chapter 33, Waterways and Vessels, Clearwater Code of Ordinances, regulating vessel operation within city waterways that are preempted to the State; adding definitions to conform with State law, and clarifying the types of vessels that may utilize city-owned docking facilities so that the City Charter and Code of Ordinances are consistent. SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 18 Attachment number 1 Page 1 of 19 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 Gity 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: Item # 18 Ordinance No. 8146-10 Attachment number 1 Page 2 of 19 aRY WRatteRded qVhir__h 0.6; tA-t-ally er partially beaGhed GR publiG er private preperty with Florida City ^nmmiooinn council means the city ^nmmiccinn council of the City of Clearwater, Commercial vessel means: a) Anv vessel arimarily enaaaed in the takina or landina 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 naviaable 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 Code2F; 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. Lenqth means the measurement from end to end over the deck parallel to the centerline excluding sheer. Item # 18 2 Ordinance No. 8146-10 Attachment number 1 Page 3 of 19 Live-aboard vessel means: (a) Any vessel used solely as a residence and not for navigation; 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 rd yessel mo Live -Ahea l ?eihinh i° r)nni 1 ans _R yeSSP ied GF i 16ed b e FG ono Gn° GF MGFe - ra rrrr rir?anva-?cr? c- - p y P r?vrr? -vr?a roci?onno Marina facilities means as defined by section 8-102 of the Clearwater Community Development Code25 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 in ^n hr»rd_ -A y°°°°I y.4hinh i° deSigRed +9 treat such sewage.aRy eg IPMen4 fr?r ino4_All_A4 r? rent°i? treat, er sewage, aRd aRy nrnnocc to treat ci inh 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 Derformance of an obliaation. but the term excludes a lessee under a lease not intended as security. Item # 18 3 Ordinance No. 8146-10 Attachment number 1 Page 4 of 19 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 met 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 sittina or standina 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 svnonvmous 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. monhino nr rloiino 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 nrmmiooirncouncil. Item # 18 4 Ordinance No. 8146-10 Attachment number 1 Page 5 of 19 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. 17 nrniicinn droll he mode fnr nleasiur° yeccelc onr! nnmmerniol "eCS°ls. 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 _ARd trAPr,0PPt nri airing Veccelc of vaY1e1 s t„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 designateclif for use by private pleasure recreational, noncommercial vessels. Use of those areas set aside for commercial vessels6ise shall be limited to the following types of commercial activities: 1) passenger-carrying or passenger service-oriented, such as, but not limited to °°°°I 14PA- R aRd Gperated as open party boats, excursion boats, charter boats, and personal watercraft rental and small heotr, fnr hire or 2 Nnon-passenger-carrying vessels engaged in commercial fishing, or other similar enterprises as defined within this chapter. may he dGGked nnl„ in spaGeS SpeGifinoll„ ` esigRated fn-.r that fie. 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 pFivate 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: 93ael6 Yeiithin nr u ep the All YP R ayi able watp ell At ell t RS lmeo have ese R , . - p - g d - ff e ? -Ated OP 40 GFIR GF in applinehle prioi?Tnrj r?r gated by the Geast G iaF d Gr the (Cede 198Q7 § 11444) Section 7. That Chapter 33, Waterways and Vessels, Section 33.053 be amended by deleting the stricken language as follows: Item # 18 5 Ordinance No. 8146-10 Attachment number 1 Page 6 of 19 i i i WheR perm tte r e ha PA h d by th s SeGt eR, the p - i(Gede 198C), § 1 1 4 51 ornqerPfPrPn-°ca- Troffin and m ntnr uphi^ erReral ly, nh 30 Statelaw rreferenrUes, Similar nrnVicinnc F.S. 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 t4a 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 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 ahem 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-abeam -+"'+,ies; 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 permits may be issued to the owners or operators of the same live-abeam 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 Item # 18 6 Ordinance No. 8146-10 Attachment number 1 Page 7 of 19 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: SeG. o i i i o v;;tp dAr-k def GR6. A pp ...... ___t ned a aRy dGGk, whaFf, p Sin in?i iro ohi i... arni Ind ?nnor! far rocirlon?iol i i69 er, s l p, sea wall, er aRY Athe / ? Fe ne t as yided OR n Ohio nn hr,6 ioohr_n+ Shall ho mnr?ror! tq an?i nri?ia4o SP G 4 9 R t z p ? r-cr??rv p i o v?crca?rzrrr.? , crva r?nar-pc-rrr?r - - . - i dGGk, whaFf, p +ho ?nia?orS om er, sl p, sea hranor! ?nii?hi wall, er Athe n +ho hni inrlo r stri -r-t- -rp Ahl M Rg aRY IGt _7G)AP-d fG)F far mnro khan a 72hni it norinr! rioc of the nit m . y 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: reauires the use of anv aublic street. sidewalk. allev. nark 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 Item # 18 7 Ordinance No. 8146-10 Attachment number 1 Page 8 of 19 by the general public or which deviates from that public area or building's established use to conduct such special event. ,ism°'?'°'? icra n rvP'crtce ? `""thin the ?s. A npersen rlir°n+inn S uGhr aff-RiFs, shall apply te the Gity maRageF feF a peFmit at least 3Q days pFieF te the GrOheduled datp- of °n„ °„°n+ 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: SeG. 33.0-5-7. Rublir__ Mr--ho-rage. a thnrized_ by o°n+iGR 22 Q548 iss iann° of of inh P°rm i+ (3 The pFeyisinno rS °°ncGtiGR Permitting annhnrinn of Y°ooels, ft-:)r-agyp F09d +t eXGeediRg 72 hAIRS shall Ret apply te that area defi.ped and des, d MIR Ser--tiGR 33.067(4. 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 72-24 hours. {4} No vehicle, vessel or trailer may be parked or stored in the p6lbliG 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.°uh eGt +n +h° r°meyal nrniicinn I vide in this 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. r \ CnllnWORg r°meyal the hAFherm-Aoter shall Item # 18 8 Ordinance No. 8146-10 Attachment number 1 Page 9 of 19 (aa) Immediately notify the GWROrnPeFSen hnldinn the registration of ci lGh ychid-' tr_;;iIerr n vi.4p_6$°Ici-aainvwhProthe v°hinlo tro110r nr Voccol WAR t;; troller nr vessel; aR 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. 33.055-9. 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. g4JJ 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}J41 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 G2* t #harborMm aster. The harbor-master will determine whether the circumstance constitutes an emergency. {4} Q No vessel shall be permitted to occupy the City-owned Recreation Center (Sand Pearl), non-leased nr+r4iGR of +h° 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 aermitted to occuav the Citv-owned side tie. non-leased aublic 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}M 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.n find n?ccihlo romrinl GF imn96inrlmon4 by the pity, nnrlnreo4o innirlon4 ?-R,????? ther°tn droll be hnrne by the nWnor Item # 18 9 Ordinance No. 8146-10 Attachment number 1 Page 10 of 19 Section 14. That Chapter 33, Waterways and Vessels, Section 33.060 be amended by deleting the stricken language as follows: (1) Aln vessel of aRy Linn! ?nihatsncPOr ?.M of Unsightly appearP 11L limits 4nY Vessel in si inh nnnditinn is hereby denlared to be a pi ihlin ni iisanne reme?rol of same s (3) Whe.?cvc?aaryre sa i inh antinn is nenessary i rri n the peFfnrmanne of his duties pi irsi cant to thi r? t°7-°?'?----crTC??. ? be ossossor! all nharnes anon jinn from si inh antinn Section 15. That Chapter 33, Waterways and Vessels, Sections 33.061 be amended by deleting the stricken language as follows: Section 16. That Chapter 33, Waterways and Vessels, Sections 33.062 be amended by deleting the stricken language as follows: SeG. 33 OG7? Ahandnnmpn+ ^fc of 4 tipgge!!Sf • mooring co as to rnenaGe navigation.. Section 17. That Chapter 33, Waterways and Vessels, Section 33.063 be amended by deleting the stricken language as follows: t and phra finitiens The fnlln ?eiinn ?e inrds (1) fle ses he i n this _ , , M ?ccnvrr inrlinates a different meaninn• (aa) Nayinatinn nhannP nhannP 1?et?c n bein la 1 meaRs aR nr! masse f ii eFs 9 y - - , ? g i Red by the fedeFal gGYeFRMeRt, FA_;;..Rta -it! -e- by the fed Item # 18 10 Ordinance No. 8146-10 Attachment number 1 Page 11 of 19 I ... r marked nnr mointoiRed by onY gG_VP_rnmontol of thnrity () oeViGe nY Re?eFRe, Pen?take nilinrr nnntnnn fleatlin° worn Iron hi ley nr oi Similar deVino ovnont o hour! thPAWA no St Pet- pFegFams. Section 18. That Chapter 33, Waterways and Vessels, Section 33.064 be amended by deleting the stricken language as follows: (1) An\/ Vessel -- - which due onni eXnlnSinn to fore deRt, aGt o f Ged nr nth aver tT?„?y v c?a > , > > > innirlont thorotn droll be hrlrno b the GWRer y GGRditiGR nnr! the are S4S 0nnirlo b th n4 +h°r°+^ Shall be h^rno e GWRer - y 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. 33.05666. 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 speeder--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. Item # 18 11 Ordinance No. 8146-10 Attachment number 1 Page 12 of 19 The harbormaster shall post or cause to be posted signs in all areas designated by ordinance as slow speeder--minimum wake or idle speed--no wake zones, including appropriate signs identifying the beginning and end of each zone, when permitted by law. t4e state deportment of nafi iral rocni irn°c E°nh cigR Shall innli de ynnnn nth°r infnrmo?inn a rocni irn°c permit ni amber 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 speeddAWA --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 speeldAWA --minimum wake zone. (2) Slow speeder --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 speeder --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 speeddAWA -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. Item # 18 12 Ordinance No. 8146-10 Attachment number 1 Page 13 of 19 (5) Slow speeddAWA --Minimum wake zone; internal canal of Bayside subdivisions. All waters of the canal between Brightwater Drive and Bayside Drive are designated as a slow speeddAWA --minimum wake zone. (6) Slow speeddAWA --Minimum wake zone, internal canals of Island Estates. All waters of the internal canals of Island Estates are hereby designated as a slow speeddewA -- minimum wake zone. (7) Slow speeddAWA --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 speeddewp --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 speeddewp -- minimum wake zone. (10) Slow speeddAWA --Minimum wake zone; Island Estates-Palm Island SE-Harbor Island. All waters in the following described area are designated as a slow speeddewp -- 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. Item # 18 13 Ordinance No. 8146-10 Attachment number 1 Page 14 of 19 (11) Slow speeder --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 speeddAWA --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 speeder - 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: Section 23. That Chapter 33, Waterways and Vessels, Section 33.069 be amended by deleting the stricken language as follows: Cross r Qf erepne5 beverage a nh 6; parks, boonhoc and ronreatien nh 22 State 'WAx Similar rrniioinno F.S. 25; Section 24. That Chapter 33, Waterways and Vessels, Section 33.070 be amended by deleting the stricken language as follows: See. 44.0-70. AIP-g1mgent Opp-Tra 'VeSj?1AXat°rhn,rnn amraraft (1) Ale neFSeR sholle rote in +ho ?U_ate.r A-f +ho Gity env s irfhearr! yesseellG Regliaon rteF SG _AS #A_ P_AdaRgeF the life-," nr nrn )eFty of aRY norcnn Item # 18 14 Ordinance No. 8146-10 Attachment number 1 Page 15 of 19 inrlifferenne er general na rele ssne ss §§ 1 1 45 1 (Cede 198C) 14 4 51) , . Gross referep&es irnerts and alrl-raft Gh 4 a ,beonhes and re rks nreotien Gh 77• . p , bathing and s?.Mimming areas in narks onr! nn beaav rhess, § 22.33. State'WAx Ar r_;;T ss vppero tinn of vessel C C S: 327 22 Section 25. That Chapter 33, Waterways and Vessels, Section 33.071 be amended by deleting the stricken language as follows: SeG 071 33 Gross -ne li l ent o eration ves t° sels wa rhe . . . amruff (1) Ale neFSen sha g y enerat ll g p e e in the ?N PS of the Git the At , nv si irf cc , bearr! ve ssel rr v rr? y - e , , SG-AS iv ger th essh i Re li (2) (?r e e life lim en era nt b er nrenerty of aRy nersen ti e n n this sentien used i a m? tr e4 rms of g v y gc T `r?r--rT"y" Re li eRGe (;FG66 Re li eRGe v r-?-a }?c Or A R A n-iJZr.?c----crrr? v r r m , e Af All r are The term me Rr hSP ans tha z r er t the e r• r•r•r??r ater Af a g g . g g , kpey th ;;t ;; r ;;i A eFt yeGGe 46 -, _ . _ r ;;p r r _ - _ _ P ;;te A h1e F04614 ef ha ;;R 61RFeaGGR rm eYe p R theu h he ' __ . . - - _ . net nenessorily inteRd to nai is (Cede 1988) §§ 114.452, 11 __ --- e harm 453 __ _ _ _ , g yrezrTe'#P}epee6A ir-9; ;;Ad airnraf+ Gh. 4; parks, beashes ;;Ad renreatien Gh 22; bathing and s?.Mimming areas in narks onr! nn beaaGhes § .33. Section 26. That Chapter 33, Waterways and Vessels, Section 33.072 be amended by deleting the stricken language as follows: O r L ? eira i on oTYPQi r?T iJe-i. vii n 33 ?? 072 ll ?s??ia ? ? Sher n ew edi p 7 ? --c?vc n ??r . . u ? 7vrr a ?r?vr r r?. r. eYGeedmR five Rq;les er heur ? AVithi p F ;Q feet ef aR GIGGk ieF seawall A F she Fe g p . , _ y ?niithin the W;;ters of the n , p , _ - (Cede 1988) § 11 454\ Section 27. That Chapter 33, Waterways and Vessels, Section 33.073 be amended by deleting the stricken language as follows: SeG. 3333.0-733. In?atersk+i+ng.. /1 \ T Defirnitionr at iiAg as used iMr n this s sentievrnr the an avt ?wrrAAecrr y a ne?en r??rmvr-vv Wz?r cmrc, - as --r-crn?car??- mre? ?i-hrc -r-rr t- nr+ntriyronnes is tGWed hehinr! anY Mine of Vessel in aRy manner YVhatseeYer Item # 18 15 Ordinance No. 8146-10 Attachment number 1 Page 16 of 19 Qofi.Ai civn6 an vFG P}en a-- SSF G-° Ad A 1 eRero yi ll § n_6 n?GG)nstri 1ntinn • use 1 02 P} ° c crrrrt ca - _ _ g > . ; reg ilatiGRG fGF marks and hoanhos nonorally, § 2 i 2 21 o4 spiv State -I aAef a ep sk s regu-l a t ,C F . S . § 327.37. Section 28. That Chapter 33, Waterways and Vessels, Section 33.074 be amended by deleting the stricken language as follows: 44 074 Use of s?ri.h SeG wh whi stles be etC lls . . . V > i > 1 TT , :. , ThSP8 A-f Soarn #s dP i? r_n aR Massa.' YVithi.A th G S, wh s e Git is tles, ell Feh•ih? s si ed ey ne milar light GF G iRd pred Ginn o satisfy t ?wr' a p used _ Y , - y T? p ' p T e t f" rorvi iiromon?s of sofa navigation /r/ ^?9vn,° 114..522) 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. VESSELV€-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: Item # 18 16 Ordinance No. 8146-10 Attachment number 1 Page 17 of 19 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. l wateF t meaRS off Per-sep ? (i inrler 16 feet) inhnorr! ?ioccol ?nihinh u -Se s a r P ;; I r te) m q t:) P P t e VeF1R a ' - p ef m seurr water jet um as its rimar __ . - ,_. g -- p p p y e Restricted area means the area defined in section 33.114 WateF t meaR + $ nn S but limited +n aR beat ?iocc? ba e S'1no eF 'r at°r? o 9 , i i y , , i i g P i , r7 T i , i suFfbeard, sk m Gar»hl beiR beard, ? used a water sk , W Rd s meaRG f + suFfer, er aRY rano r_r+_A+ir_n m lar r-ent ether s r_n +ho wAtpr r vapr-e Ar dev r-e - mpd Ar g P W° #Vessel operator means a person who is in actual physical control of or steering a W°+n+ vessel or who is exercising control over or steering any device being towed by a w"'+n+vessel. 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. Vessel-s and aircraft exclusion prohibited- in certain areas. Item # 18 17 Ordinance No. 8146-10 Attachment number 1 Page 18 of 19 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 storageimn^61Rdrn + by the city. Prior to imn^, in.Jm°n+ nn? 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 stored*4peupAe4. Such notice shall include a statement that a removal and protective storage^r "''''^^U^d'' e.pt. hearing will be conducted by Item # 18 18 Ordinance No. 8146-10 Attachment number 1 Page 19 of 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 in,n^"nom°n? nr 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 storageimn^„n,Im°n+, provide the owner with a notice of protective storageimn^„ndm°n+ and shall advise the owner that he may request a hearing similar to that provided in section 30.076. Where imn^"nrlm°nt rn+°nti„° c+nrage °nrl nr r°mniol is by the G*, aAll costs relating to the removal and protective storage +h°rete 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 council^^mmicci^^ 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 Approved as to form: Camilo A. Soto Assistant City Attorney Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk Item # 18 19 Ordinance No. 8146-10 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: City Manager Verbal Reports SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 19 Attachment number 1 Page 1 of -1 k ?? C I i Vlt, , 1 W !I i y y w, Item # 19 a; h Item # 19 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Other Council Action SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 20 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Clearwater Neighborhood Coalition to thank the City for their support for the 2009 Clearwater Neighborhood Coalition Conference on Gang Intervention. SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 21 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Swearing in of Police Chief Tony Holloway SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 22 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Clearwater for Youth Day Proclamation SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 23 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Human Rights Walkathon Day Proclamation SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 24 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Poppy Day Proclamation SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 25 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: 2010 Winter Business, Home and Neighborhood of the Quarter Awards SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 26 Meeting Date: 2/16/2010 Work Session Council Chambers - City Hall SUBJECT / RECOMMENDATION: Department of Homeland Security Recognition of Ironman EOC Operations - Rick Carnley SUMMARY: The Review Approval: 1) Clerk Cover Memo Item # 27