11-01RESOLUTION NO. 11-01
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CLEARWATER AND SEA
CAPTAIN, A FLORIDA GENERAL PARTNERSHIP;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Clearwater is desirous of entering into a development
agreement with Sea Captain, a Florida General Partnership; 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 Sea
Captain, a Florida General Partnership, a copy of which is attached as Exhibit "A," is
hereby approved.
Section 2. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 1 3hh day of jan„ary -_, 2011.
Approved as to form:
Leslie K. Doug - i es
Assistant City A orney
Frank V. Hibbard
Mayor
Attest: OP 710
n
Zga?
Rosemarie Call
City Clerk
Resolution No. 11-01
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("AGREEMENT") is dated the A
day of _LLv , 2011, and entered into between SEA CAPTAIN, A
FLORIDA GE RAL PARTNERSHIP ("Developer"), its successors and assigns, and
the CITY OF CLEARWATER, FLORIDA, a political subdivision of the State of
Florida acting through its City Council, the governing body thereof ("City").
RECITALS:
WHEREAS, one of the major elements of the City's revitalization effort is a
preliminary plan for the revitalization of Clearwater Beach entitled Beach by Design; and
WHEREAS, Sections 163.3220 - 163.3243, Florida Statutes, which set forth the
Florida Local Government Development Agreement Act ("Act"), authorize the City to
enter into binding development agreements with persons having a legal or equitable
interest in real property located within the corporate limits of the City; and
WHEREAS, under Section 163.3223 of the Act, the City has adopted Section 4-
606 of the City of Clearwater Community Development Code ("Code"), establishing
procedures and requirements to consider and enter into development agreements; and
WHEREAS, Beach by Design proposed additional hotel units to equalize
development opportunities on the beach and ensure Clearwater Beach remains a quality,
family resort community by further providing for a limited pool of additional hotel units
("Hotel Density Reserve") to be made available for such mid-sized hotel projects; and
WHEREAS, the Developer controls approximately 0.829 acre (0.659 acre zoned
Tourist (T) District and 0.17 acre zoned Low Medium Density Residential (LMDR)
District) of real property ("Property") in the corporate limits of the City, consisting of
0.659 acres of upland from the face of the seawall more particularly described on Exhibit
"A" attached hereto and incorporated herein; and
WHEREAS, the Developer desires to develop the Property by demolishing
existing hotel rooms and other uses in order to add overnight accommodation units,
minimal meeting space for guest use, ground level pool, new lobby and parking with
parking spaces, generally conforming to the architectural elevation dimensions shown in
composite Exhibit "B"; and
WHEREAS, upon completion the planned resort will contain 85 units, which
includes Fifty-Three (53) units from the available Hotel Density Reserve:
WHEREAS, the City has conducted such hearings as are required by and in
accordance with Chapter 163.3220 Fla. Stat. (2008) and any other applicable law; and
WHEREAS, the City has determined that, as of the Effective Date of this
Agreement, the proposed project is consistent with the City's Comprehensive Plan and
Land Development Regulations; and
WHEREAS, the City has conducted public hearings as required by §§ 4-206 and
4-606 of the Community Development Code; and
WHEREAS, at a duly called public meeting on 'JoLn J ax , 2011,
the City Council approved this Agreement and authorized and directed its execution by
the appropriate officials of the City; and
WHEREAS, the Community Development Board approved the design and site
plan as FLD2010- 08004 on 0-ect 6c4- 2-1, 2010, conditioned upon the approval
and execution of this Agreement; and
WHEREAS, approval of this Agreement is in the interests of the City in
furtherance of the City's goals of enhancing the viability of the resort community and in
furtherance of the objectives of Beach by Design; and
WHEREAS, Developer has approved this Agreement and has duly authorized
certain individuals to execute this Agreement on Developer's behalf.
STATEMENT OF AGREEMENT
In consideration of and in reliance upon the premises, the mutual covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto intending to be legally bound and in
accordance with the Act, agree as follows:
SECTION 1. Recitals. The above recitals are true and correct and are a part of
this Agreement.
SECTION 2. Inco oration of the Act. This Agreement is entered into in
compliance with and under the authority of the Code and the Act, the terms of which as of
the date of this Agreement are incorporated herein by this reference and made a part of
this Agreement. Words used in this Agreement without definition that are defined in the
Act shall have the same meaning in this Agreement as in the Act.
SECTION 3. ProBerty Sub'ect to this Agreement. The Property described in
Exhibit "A" is subject to this Agreement ("Property").
3.1 The Property currently has a total acreage of 0.829 acre (0.659 acre with
Resort Facilities High (RFH) land use and Tourist (T) District zoning and 0.17 acre with
Residential Urban (RU) land use and Low Medium Density Residential (LMDR) District
zoning).
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3.2. The Property is owned in fee simple by the Developer.
3.3 The Property is generally located at 40 Devon Drive Clearwater, FL 33767
as more further described in Exhibit "A".
SECTION 4. Scone of Project
4.1 The Project shall consist of no more than 85 overnight accommodation
units. The proposed density is 128.98 units per acre. The project includes approximately
7,986 square feet of accessory uses, representing 9.91% of the gross floor area of the
overnight accommodation building.
4.2 The Project shall include 93 parking spaces, as defined in the Community
Development Code.
4.3 The proposed height of the building is 75'-3" to the roof deck.
4.4 The design of the Project, as represented in Exhibit "B", is consistent with
Beach by Design.
4.5 The project shall comply with the Metropolitan Planning Organization
(MPO) countywide approach to the application of concurrency management for
transportation facilities.
4.6 Outdoor music or amplified sound shall be prohibited after 11:00 p.m. on
Sundays through Thursdays and after 12:00 midnight on Fridays and Saturdays.
SECTION 5. Effective Date/Duration of this Agreement.
5.1 This Agreement shall not be effective until this Agreement is properly
recorded in the public records of Pinellas County, Florida, and thirty (30) days have
elapsed after having been received by the Department of Community Affairs pursuant to
Florida Statutes Section 163.3239 and Clearwater Community Development Code Section
4-606.G. 2.
5.2 Within fourteen (14) days after the City approves the execution of this
Agreement, the City shall record the Agreement with the Clerk of the Circuit Court for
Pinellas County. The Developer shall pay the cost of such recording. The City shall
submit to the Department of Community Affairs a copy of the recorded Agreement within
fourteen (14) days after the Agreement is recorded.
5.3 This Agreement shall continue in effect until terminated, as defined herein,
but for a period not to exceed ten (10) years.
SECTION 6. Obligations under this Agreement.
6.1 Obligations of the Developer:
6.1.1 The obligations under this Agreement shall be binding upon and the
benefits of this Agreement shall inure to the Developer, its successors in interests
or assigns.
6.1.2 At the time of development of the Property, the Developer will
submit such applications and documentation as are required by law and shall
comply with the City's Code applicable at the time of building permit review.
6.1.3 The following restrictions shall apply to development of the
Property:
6.1.3.1 The Property and improvements located thereon shall be
developed in substantial conformance with the Site Plan attached as
Exhibit "B" and approved by the Community Development Board ("CDB")
as case number FLD2010-08004. Any minor revisions or changes to the
Site Plan shall be consistent with the approved Site Plan and shall be
approved by the Planning Director as a minor modification, pursuant to the
Code. Any modifications determined by the Planning Director as either
inconsistent with the approved Site Plan or constituting a substantial
deviation from the approved Site Plan and thus requiring further approval
by the CDB shall require an amendment to this Agreement in accordance
with the procedures of the Act and the Code, as necessary and applicable.
Any and all such approved and adopted amendments shall be recorded in
the public records of Pinellas County, Florida.
6.1.3.2 The Developer shall obtain building permits and shall
thereafter timely obtain required certificates of occupancy, in accordance
with Code Section 4-407. The Developer shall commence vertical
construction, defined as work on the project other than clearing, grubbing
or other preliminary site preparation work, in accordance with applicable
provisions of the Code and of the Florida Building Code. Nothing herein
shall restrict Developer from seeking an extension of these time frames
pursuant to applicable provisions of the Code and of the Florida Building
Code or from seeking an amendment to this agreement.
6.1.3.3 The Developer shall execute, prior to commencement, a
mandatory evacuation/closure covenant, substantially in the form of
Exhibit "C", that the accommodation use will closed as soon as practicable
after a hurricane watch that includes Clearwater Beach is posted by the
National Hurricane Center.
6.1.4 Covenant of Unified Use. Prior to the issuance of the first building
permit for the Project, the Developer hereby agrees to execute and record in the
Public Records of Pinellas County, Florida the covenant of unified use and
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development for the Project Site providing that the Project Site shall be developed
and used as a single project, the form of which covenant is attached as Exhibit
"D"; provided however, that nothing shall preclude the Developer from selling the
Fractional Share Units or from selling all or a portion of the Developer's Property
in the event that Developer determines not to construct the Project. Additionally,
prior to the issuance of the first building permit for the Project, the Developer
hereby agrees to execute a Declaration of Unity of Title for the Project Site
providing that the Project Site shall be developed and used as a single project, the
form of which Declaration of Unity of Title is available from the City Planning
Department. It is understood and agreed that, in the event that the Developer
enters into the anticipated covenant of unified use and development, and the
Developer elects not to construct the Project and notifies the City of its election in
writing, and, alternatively, as of the date of expiration, termination or revocation
any rights of Developer to incorporate the Hotel Density Reserve Units into the
Project, the City shall execute and deliver to the Developer a termination of such
covenant of unified use and development suitable for recording in the Public
Records of Pinellas County, Florida. Additionally, the City shall execute and
deliver to the Developer a Release of Unity of Title suitable for recording in the
Public Records of Pinellas County, Florida.
6.1.5 Allocation of Units from Hotel Density Reserve; Return of units to
the Reserve Pool. Covenant Regarding Use of Hotel Density Reserve Units.
Subject to the terms and conditions of this Agreement, the City hereby allocates
and grants to the Developer from the Hotel Density Reserve an additional 53 hotel
units to the Project Site in accordance with applicable law. In the event this
Agreement is terminated pursuant to Section 10 of this Agreement, or if any of the
units granted to the Developer from the Hotel Density Reserve are not constructed
in conjunction with the Project approved by FLD2010-08004 and in accordance
with Paragraph 6.1.3.2, or if any units or the Project fail to meet and maintain the
criteria for Hotel Density Reserve Units contained in the City of Clearwater
Ordinance No. 7925-08, said units shall be returned to the Hotel Density Reserve
and be unavailable to the Developer for use on the Project, pursuant to Beach by
Design. Prior to the issuance of the Certificate of Occupancy for the Project, the
Developer agrees to execute and record a Covenant in the Public Records of
Pinellas County, Florida restricting the Hotel Density Reserve Units in perpetuity
to the use approved by FLD2010-08004 and by this Agreement.
6.1.6 Transient Use. Occupancy in the overnight accommodation units
from the Hotel Density Reserve is limited to a term of one (1) month or thirty-one
(31) consecutive days, whichever is less. Nothing herein shall prevent a purchaser
of a fractional share unit from owning a period of time greater than thirty-one (31)
days, provided every occupancy is limited to a term of one (1) month or thirty-one
(31) consecutive days, whichever is less.
6.1.7 No overnight accommodation unit may be converted to a residential
use (i.e. attached dwelling); Access to overnight accommodation units must be
provided through a lobby and internal corridors; A reservation system shall be
required as an integral part of the use and there shall be a lobby/front desk area
that must be operated as a typical lobby/front desk area for a hotel would be
operated; and The books and records pertaining to use of each overnight
accommodation unit shall be open for inspection by authorized representatives of
the City, upon reasonable notice, in order to confirm compliance with these
regulations as allowed by general law.
6.2 Obliaations of the City.
6.2.1 The City shall promptly process site and construction plan
applications for the Property that are consistent with the Comprehensive Plan and
the Concept Plan and that meet the requirements of the Code.
6.2.2 The final effectiveness of the re-designations referenced in Section
6.2.1 is subject to:
6.2.2.1 The provisions of Chapters 163 and 166, Florida Statutes, as
they may govern such amendments; and
6.2.2.2 The expiration of any appeal periods or, if an appeal is filed,
at the conclusion of such appeal.
6.2.3 Upon adoption of this Agreement, the Project shall receive 53 units
from the Hotel Density Reserve as defined in Beach by Design.
SECTION 7. Public Facilities to Service Development. The following public
facilities are presently available to the Property from the sources indicated below.
Development of the Property will be governed by the concurrency ordinance provisions
applicable at the time of development approval unless otherwise provided by law. With
respect to transportation and other public infrastructure and services subject to
concurrency requirements, all applicable concurrency provisions for the proposed
development have been met.
7.1 Potable water is available from the City. The Developer shall be
responsible for all necessary main extensions and applicable connection fees.
7.2 Sewer service is currently provided by the City. The Developer shall be
responsible for all necessary main extensions and applicable connection fees.
7.3 Fire protection from the City.
7.4 Drainage facilities for the Property will be provided by the Developer at
the Developer's sole expense.
7.5 Transportation concurrency requirements have been met.
7.6 All improvements associated with the public facilities identified in
Subsections 7.1 through 7.4 shall be completed prior to the issuance of any certificate of
Occupancy.
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7.7 The Developer is responsible for the payment of any required impact fees.
In the event that the Florida Legislature, Pinellas County, and/or the City of Clearwater
enact a Mobility Fee requirement which supplements or supersedes the current Pinellas
County countywide Traffic Impact Fee Ordinance, and the effective date of fee payment
under said requirement occurs prior to issuance of Certificate of Occupancy, Developer
shall pay the assessed amount under that Mobility Fee provision instead of, or in addition
to, in accordance with that provision, the amount due under the current Ordinance.
SECTION 8. Required Local Government Permits. The required local
government development permits for development of the Property include, without
limitation, the following:
8.1 Site plan approval(s) and associated utility licenses, access, and right-of-
way utilization permits;
8.2 Construction plan approval(s);
8.3 Building permit(s); and
8.4 Certificate(s) of occupancy.
SECTION 9. Consistency. The City finds that development of the Property is
consistent with the terms of this Agreement and is consistent with the City
Comprehensive Plan and the Code.
SECTION 10. Termination.
If the Developer's obligations set forth in this Agreement are not followed in a timely
manner, as reasonably determined by the City Manager, after notice to the Developer and
an opportunity to be heard, existing permits shall be administratively suspended and
issuance of new permits suspended until the Developer has fulfilled its obligations.
Failure to timely fulfill its obligations may serve as a basis for termination of this
Agreement by the City, at the discretion of the City and after notice to the Developer and
an opportunity for the Developer to be heard.
SECTION 11. Other Terms and Conditions.
11.1 Except in the case of termination, until ten (10) years after the date of this
Agreement, the Property shall not be subject to down-zoning, unit density reduction, or
intensity reduction, unless the City has held a public hearing and determined:
11. That substantial changes have occurred in pertinent conditions
existing at the time of approval of this Agreement; or
11. 1.2 This Agreement is based on substantially inaccurate information
provided by the Developer; or
11. 1.3 That the change is essential to the public health, safety, or welfare.
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SECTION 12. Compliance with Law. The failure of this Agreement to address
any particular permit, condition, term or restriction shall not relieve the Developer from
the necessity of complying with the law governing such permitting requirements,
conditions, terms or restrictions.
SECTION 13. Notices. Notices and communications required or desired to be
given under this Agreement shall be given to the parties by hand delivery, by nationally
recognized overnight courier service such as Federal Express, or by certified mail, return
receipt requested, addressed as follows (copies as provided below shall be required for
proper notice to be given):
If to the Developer: SEA CAPTAIN, A FLORIDA GENERAL
PARTNERSHIP, DONALD F. EIFERT, PARTNER
526 Belle Isle
Belleair Beach, FL
With Copy to: FOWLER ASSOCIATES ARCHITECTS, INC
1421 Court Street, Suite D
Clearwater, FL 33756
If to City: City of Clearwater, City Attorney
ATTN: Pamela Akin, Esq.
112 South Osceola Avenue
Clearwater, FL 33756
Properly addressed, postage prepaid, notices or communications shall be deemed
delivered and received on the day of hand delivery, the next business day after deposit
with an overnight courier service for next day delivery, or on the 3rd day following
deposit in the United States mail, certified mail, return receipt requested. The parties may
change the addresses set forth above (including the addition of a mortgagee to receive
copies of all notices), by notice in accordance with this Section.
SECTION 14. Assignments.
14.1 By the Developer:
14. 1.1 Prior to the Commencement Date, the Developer may sell, convey,
assign or otherwise dispose of any or all of its right, title, interest and obligations
in and to the Project, or any part thereof, only with the prior written notice to the
City, provided that such party (hereinafter referred to as the "assignee"), to the
extent of the sale, conveyance, assignment or other disposition by the Developer to
the assignee, shall be bound by the terms of this Agreement the same as the
Developer for such part of the Project as is subject to such sale, conveyance,
assignment or other disposition.
14.1.2 If the assignee of the Developer's right, title, interest and
obligations in and to the Project, or any part thereof assumes all of the Developer's
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obligations hereunder for the Project, or that part subject to such sale, conveyance,
assignment or other disposition, then the Developer shall be released from all such
obligations hereunder which have been so assumed by the assignee, and the City
agrees to execute an instrument evidencing such release, which shall be in
recordable form.
14.1.3 An assignment of the Project, or any part thereof, by the Developer
to any corporation, limited partnership, limited liability company, general
partnership, or joint venture, in which the Developer (or an entity under common
control with Developer) has either the controlling interest or through a joint
venture or other arrangement shares equal management rights and maintains such
controlling interest or equal management rights shall not be deemed an assignment
or transfer subject to any restriction on or approvals of assignments or transfers
imposed by this Agreement, provided, however, that notice of such assignment
shall be given by the Developer to the City not less than thirty (30) days prior to
such assignment being effective and the assignee shall be bound by the terms of
this Agreement to the same extent as would the Developer in the absence of such
assignment.
14.1.4 No assignee, purchaser, sublessee or acquirer of all or any part of
the Developer's rights and obligations with respect to any one Parcel shall in any
way be obligated or responsible for any of the Developer's obligations with respect
to any other Parcel by virtue of this Agreement unless and until such assignee,
purchaser, sublessee or acquire has expressly assumed the Developer's such other
obligations.
14.1.5 Notwithstanding any other provision of this paragraph, the sale of
individual Interval Ownership Units in the ordinary course of business shall not be
subject to the requirements of this paragraph.
14.2 Successors and- Assigns. The terms herein contained shall bind and inure to
the benefit of the City, and its successors and assigns, and the Developer and, as
applicable to the parties comprising Developer, their personal representatives, trustees,
heirs, successors and assigns, except as may otherwise be specifically provided herein.
SECTION 15. Minor Non-Com liance. The Developer will not be deemed to
have failed to comply with the terms of this Agreement in the event such noncompliance,
in the judgment of the City Manager, reasonably exercised, is of a minor or
inconsequential nature.
SECTION 16. Covenant of Cooperation. The parties shall cooperate with and
deal with each other in good faith and assist each other in the performance of the
provisions of this Agreement and in achieving the completion of development of the
Property.
SECTION 17. Approvals. Whenever an approval or consent is required under or
contemplated by this Agreement such approval or consent shall not be unreasonably
9
withheld, delayed or conditioned. All such approvals and consents shall be requested and
granted in writing.
SECTION 18. Completion of Agreement. Upon the completion of performance
of this Agreement or its revocation or termination, a statement evidencing such
completion, revocation or termination shall be signed by the parties hereto and recorded in
the official records of the City.
SECTION 19. Entire Agreement. This Agreement (including any and all
Exhibits attached hereto all of which are a part of this Agreement to the same extent as if
such Exhibits were set forth in full in the body of this Agreement), constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof.
SECTION 20. Construction. The titles, captions and section numbers in this
Agreement are inserted for convenient reference only and do not define or limit the scope
or intent and should not be used in the interpretation of any section, subsection or
provision of this Agreement. Whenever the context requires or permits, the singular shall
include the plural, and plural shall include the singular and any reference in this
Agreement to the Developer includes the Developer's successors or assigns. This
Agreement was the production of negotiations between representatives for the City and
the Developer and the language of the Agreement should be given its plain and ordinary
meaning and should not be strictly construed against any party hereto based upon
draftsmanship. If any term or provision of this Agreement is susceptible to more than one
interpretation, one or more of which render it valid and enforceable, and one or more of
which would render it invalid or unenforceable, such term or provision shall be construed
in a manner that would render it valid and enforceable.
SECTION 21. Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstance is declared invalid or unenforceable,
the remainder of this Agreement, including any valid portion of the invalid term or
provision and the application of such invalid term or provision to circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected thereby and
shall with the remainder of this Agreement continue unmodified and in full force and
effect. Notwithstanding the foregoing, if such responsibilities of any party hereto are
thereby limited, to the extent that the purpose of this Agreement or the benefits sought to
be received hereunder are frustrated, such party shall have the right to terminate this
Agreement upon fifteen (15) days written notice to the other parties.
SECTION 22. Code Amendments. Subsequently adopted ordinances and codes
of the City which is of general application not governing the development of land shall be
applicable to the Property, and such modifications are specifically anticipated in this
Agreement.
SECTION 23. Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Florida without regard to the conflict
of laws principles of such state.
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SECTION 24. Counterparts. This Agreement may be executed in counterparts,
all of which together shall continue one and the same instrument.
SECTION 25. Amendment. This Agreement may be amended by mutual
written consent of the City and the Developer, so long as the amendment meets the
requirements of the Act, applicable City ordinances, and Florida law.
IN WITNESS WHEREOF, the parties have hereto executed this Agreement the date and
year first above written.
In the Presence of:
Print N e ,?QM? u R?4F,\et
Print Name Nt L! W LSV--
As to "Developer"
Print Name:
Print Name
As to "City"
By:
Donald F. Eifert,
Developer
CITY OF LEARWATER, FLORIDA
By:
William B. Horne II,
City Manager
/
Attest: Cr
Rosemarie Call, City Clerk R
Countersigned:
7 011
v
Frank V. Hibbard, Mayor
Ap ved as to Form:
Leslie K. Douga 1 es
Assistant City Attorney
11
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
2011, by ppgA (,? He is [ 16, personally known to me
or has [ ] produced - as identification.
Notary Public r•• MOLLY M. FOWLER
Print Name: `. MY COMMISSION # EE 029839
My Commission Ex 1reS: ?? ....• EXPIRES: September 27, 2014
y p Pr,. Bonded Thru Notary Public Underwriters
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
C , 2011, by WILLIAM B. HORNE, II, as City Manager of the
City of Clearwater, Florida, who is [ vj"personally known to me or who has [ ]
produced as identification.
SANDRA HARRIGER Notary Public
MY COMMISSION # DD733691 Print Name: EXPIRES: January 04, 2012
1.M1.3-NOTARY El. Notary DIecaunt Amm- CO. My Commission Expire
12
EXHIBIT "A"
Legal Description of Project Site
UPLAND PARCEL
The following is a description of the uplands lying between the existing seawall and the deed described
boundary lines.
Lots 1 and 2, A REPLAT OF BAYSIDE SUBDIVISION, as recorded in Plat Book 23, Pages 18 and 19, Public
Records of Pinellas County, Florida. TOGETHER WITH a portion of Hamilton Drive right-of-way vacated per
Resolution no. 67-94.
AND
Unplatted lands lying in Section 8, Township 29 South, Range 15 East, Pinellas County, Florida
Described as follows:
Begin at the Southwest corner of Water Lot 1, CITY PARK SUBDIVISION, as recorded in Plat Book 23, Page
37, Public Records of Pinellas County, Florida and run thence West along the East and West centerline of
Section 8, Township 29 South, Range 15 East, Pinellas County, Florida, 15.00 feet to the Easterly line of
Coronado Drive; thence S.05°32'30"W., 116.26 feet to the Northerly line of First Avenue; thence 5.84°27'30"E.,
100.00 feet along the Northerly line of First Avenue and the Point of Beginning.
Thence N.05°32'30"W., 178.84 feet to a point on the seawall, said point also being Point "A" for the submerged
land description; thence running with the seawall the following courses: S.83°42'47"E., 78.40 feet; thence along
the are of a curve to the right having a radius of 159.25 feet, a delta of 36°34'54", arc of 101.68 feet, chord of
99.96 feet, bearing S.65025'20"E.; thence S.47°07'53"E., 12.96 feet; thence along a curve to the right having a
radius of 116.10 feet, a delta of 16°50'13", arc of 34.12 feet, chord of 33.99 feet, bearing S.3 8°42'46"E.; thence
S30°17'39"E., 107.53 feet; thence along a curve to the right having a radius of 52.45 feet, a delta of 8°25' 14",
are of 7.71 feet, chord of 7.70 feet, bearing S.26°05'03"E. to the intersection of the South property line of said
Lot 2; thence leaving said seawall, non tangent to the previous course, run along the South line of said Lot 2,
N84°27'30"W. a distance 104.21 feet to a point; thence run 5.70°27'50"W. a distance of 45.94 feet to a point of
intersection with the Northerly right-of-way line of First Avenue; thence along said right-of-way line a distance
of 128.00 feet, N.84°27'30"W. to the Point of Beginning.
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EXHIBIT "B"
Site and Building Plans
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191-
EXHIBIT "C"
COVENANT REGARDING HURRICANE EVACUATION
And DEVELOPMENT, USE AND OPERATION
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS ("Declaration") is made as of the
day of &&rugft , 2011, by Sea Captain, A Florida General Partnership, Donald F. Eifert,
Partner ("Developer").
Developer is the owner of fee simple title to the real property described in Schedule 1 attached hereto
and made a part hereof (hereinafter, the ("Real Property"). The City of Clearwater, Florida (the "City"), has
amended its Comprehensive Plan, to designate Clearwater Beach as a Community Redevelopment District
pursuant to the Pinellas County Planning Council Rules in order to implement the provisions of "Beach by
Design," a plan for the revitalization of Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District (the "Designation")
provides for the allocation of Hotel Density Reserve Units as an incentive for the development of mid-sized
quality hotels. Pursuant to the Designation, the allocation of Hotel Density Reserve Units is subject to
compliance with a series of performance standards, including a requirement that resorts containing a hotel
developed with Hotel Density Reserve Units shall be closed and all Guests evacuated from such resorts as soon
as practicable after the National Hurricane Center posts a hurricane watch that includes Clearwater Beach. The
purpose of such evacuation is to ensure that such a Resort Hotel is evacuated in advance of the period of time
when a hurricane evacuation would be expected in advance of the approach of hurricane force winds.
The City has granted, by City Council Resolution // - 01 --,passed and approved on Jana 13,
2011, Developer's application for Hotel Density Reserve Units pursuant to the Designation, subject to
Developer's compliance with the requirements of the Designation. Developer desires for itself, and its
successors and assigns, as owner, to establish certain rights, duties, obligations and responsibilities with respect
to the use and operation of the Real Property in accordance with the terms and conditions of the allocation of
the Hotel Density Reserve Units to the City and the Designation, which rights, duties, obligations and
responsibilities shall be binding on any and all successors and assigns and will run with the title to the Real
Property.
THEREFORE, in consideration of the covenants and restrictions herein set forth and to be observed and
performed, and in further consideration of the allocation of Hotel Density Reserve Units to Developer, and other
good and valuable consideration, the sufficiency of which is hereby acknowledged, Developer hereby declares,
covenants and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for
the benefit of Developer and its successors and assigns and shall be enforceable by them and also for the benefit
of the residents of the City and shall be enforceable on behalf of said residents by the City Council of the City.
2. Covenant of Development, Use and O ration. Developer hereby covenants and agrees to the
development, use and operation of the Real Property in accordance with the provisions of this Declaration.
2.1 Use. The use of the resort on the Real Property is restricted as follows:
15
2. 1.1 A maximum of fifty three units, which is the number of hotel units allocated to Developer,
shall be used solely for transient occupancy of one month or thirty (30) consecutive days or less,
must be licensed as a public lodging establishment and classified as a hotel, and must be
operated by a single licensed operator of the hotel. No such hotel unit shall be used as a primary
or permanent residence.
2.l .2 All other 32 units shall be licensed as a public lodging establishment. No unit shall be used
as a primary or permanent residence.
2.1.3 As used herein, the terms "transient occupancy," "public lodging establishment," "hotel,"
"time share," and "operator" shall have the meaning given to such terms in Chapter 509, Part I,
Florida Statutes (2004).
2.2 Closure of Improvements and Evacuation. The Hotel developed on the Real Property shall be
closed as soon as practicable upon the issuance of a hurricane watch by the National Hurricane Center, which
hurricane watch includes Clearwater Beach, and all Hotel guests, visitors and employees other than emergency
and security personnel required to protect the resort, shall be evacuated from the Hotel as soon as practicable
following the issuance of said hurricane watch. In the event that the National Hurricane Center shall modify the,
terminology employed to warn of the approach of hurricane force winds, the closure and evacuation provisions
of this Declaration shall be governed by the level of warning employed by the National Hurricane Center which
precedes the issuance of a forecast of probable landfall in order to ensure that the guests, visitors and employees
will be evacuated in advance of the issuance of a forecast of probable landfall.
3 Effective Date. This Declaration shall become effective upon issuance of all building permits
required to build the project ("Project") and Developer's commencement of construction of the Project, as
evidence by a Notice of Commencement for the Project. This Declaration shall expire and terminate
automatically if and when the allocation of Reserve Units to the Developer expires or is terminated.
4 Governing Law. This Declaration shall be construed in accordance with and governed by the
laws of the State of Florida.
5 Recording. This Declaration shall be recorded in the chain of title of the Real Property with the
Clerk of the Courts of Pinellas County, Florida.
6 Attorneys' Fees. Developer shall reimburse the City for any expenses, including reasonable
attorneys' fees, which are incurred by the City in the event that the City determines that it is necessary and
appropriate to seek judicial enforcement of this Declaration and the City obtains relief, whether by agreement of
the parties or through order of a court of competent jurisdiction.
7 Severabilit. If any provision, or part thereof, of this Declaration or the
application of this Declaration to any person or circumstance will be or is declared to any extent to a invalid or
unenforceable, the remainder of this Declaration, or the application of such provision or portion thereof to any
person or circumstance, shall not be affected thereby, and each and every other provision of this Declaration
shall be valid and enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, Developer has caused this Declaration to be executed this 2844-day of
F'eloruar y , 2011.
16
In the Presence of.
cam'
Print Name M-"E lAn `l"P-14N "I e? b6wPtL,-Q F. r
Print Name mci. n. faWLG?
As to "Developer"
Print Name:
Print Name
As to "City"
CITY OF LEARWXTER, FLORIDA
By:
William B. Horne II,
City Manager
Rosemarie Call, City Clerk
Countersigned:
, ye?z z Z;4?
Frank V. Hibbard, Mayor
App ved as to Fo
Leslie K. Doug 1-S
Assistant City Attorney
17
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument as acknowledged before me this rday of , 2011, by
Q3?J/K n ?1? He is [??J personally known to me or has [ ] produced
as identification.
Notary ublic
Print Name: MOLLY M. FOWLER
s, 39
My Commission Expir 3p' EXPIRo1a
Bonded writers
STATE OF FLORIDA
AS
COUNTY OF PINELL
The foregoing instrument was acknowledged before me this a?day of r-L? ,
2011, by WILLIAM E. HORNS, 11, as City Manager of the City of Clearwater, Florida, who is [ ersonally
known to me or who has [ ] produced as identification.
Notary Public
Print Name: My Commission Expires: I `11 1 -
2-SANDRA HARRIGER
My COMMISSION 4 DD733691
EXPIRES. 3anuary 04, 2012
Naw. ?ypyel Auoe. Ca.
I.I.
1.!,?0.3-140TARY
18
EXHIBIT "D"
COVENANT OF UNIFIED USE
PLEASE RETURN RECORDED DOCUMENT TO:
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Agreement") is executed this day of
2011, by ("Developer").
WITNESSETH:
WHEREAS, Developer is the owner of the real property legally described on Schedule "A" attached
hereto and incorporated herein by reference (the "Real Property"); and
WHEREAS, Developer and the City of Clearwater, Florida (the "City") are parties to that certain
Development Agreement dated , 2011 (the "Development Agreement"), pursuant to which the
City has agreed that Developer may develop and construct upon the Real Property a hotel project as described
in the Development Agreement (the "Project"); and
WHEREAS, Developer intends to develop and operate the Real Property for a unified use, as more
particularly described in this Agreement.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Developer does hereby agree that,
effective as of the date on which Developer receives all permits required to construct the Project and Developer
commences construction thereof, as evidenced by a Notice of Commencement for the Project, the Real Property
shall be developed and operated as a hotel and fractional share/interval ownership project, as described in the
Development Agreement. The restrictions set forth in the preceding sentence shall expire automatically when
and if Developer's allocation of additional hotel units (as defined in the Development Agreement) expires or is
terminated. Nothing in this Agreement shall require Developer to develop the Project or restrict Developer's
ability to sell, assign, transfer or otherwise convey its right in and to the Real Property or any portion or portions
thereof to unrelated third-parties. Further, nothing in this Agreement shall preclude the purchase and sale of one
or more Fractional Share Units to be constructed as a part of the Project (the "Fractional Ownership") (or Hotel
Units (as defined in the Development Agreement) if sold in a condominium form of ownership), to separate,
unrelated third parties, provided that such Fractional Share Ownership or Hotel Units are operated and occupied
as part of the Project as a single unified project throughout the term of this Agreement. Developer agrees that
the City shall have the right to enforce the terms and conditions of this Agreement.
Notwithstanding the foregoing, all Hotel Units may be operated by a single hotel operator and all
Fractional Share Units may be operated by a different, single management firm/operator.
IN WITNESS WHEREOF, Developer has caused this Agreement to be executed this day of
.2011.
19
In the Presence of
e.v' C9r?
Print ame Ap•,MVyWn, ?a4
Print N e Mow1 M ,r6W LC-r--
As to "Developer"
Print Name: 1:n Duo N ,4L. o F. E -r
b6--?J6t.a P02-
CITY OF CLEARWATER, FLORIDA
By: ? ?jL
William B. Horne II,
City Manager
Print Name
As to "City"
Attest:
Rosemarie Call, City Clerk
TER
Countersigned:
Frank V. Hibbard, Mayor
App ved as to Form:
!k-
Leslie K. Doug 1- i es
Assistant City Atto ey
STATE OF FLORIDA
COUNTY OF PINELLAS
ed before me this 8 ,
The foregoing instrument was acknowled _?Y o 2011, by
Do r,( p? He is [personally known to me or has [ ] produced
as identification.
Notary blic
Print Name .. " MOLLY M. FOWLER
_ # EE 029839
My Conimisslon EXplr = EXPIRES: September 27, 2014
RF Bonded Thru Notary Pubhc Undenrtilers
OF ?t
20
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this - X44-k day of ,
2411, by WILLIAM B. HORNE, II, as City Manager of the City of Clearwater, Florida, who is [ personally
known to me or who has [ ] produced as identification.
Notary Public
Print Name: n ?-
My Commission Expires: 1 '! )-z-
SAND` HARRIGBR
MY COMMISSION # DD1 1
January OA. 2012
EXPI1tF'S:
Pl. NOWY Discount Aacca. CA?Z,;-NOTARY
21