FIRST AMENDMENT TO THE FIRST AMENDED AND RESTATED AGREEMENT FOR DEVELOPMENT OF PROPERTYPREPARED BY AND WHEN RECORDED RETURN TO:
J. Paul Raymond, Esq.
625 Court Street, Suite 200,
Clearwater FL 33756
FIRST AMENDMENT TO THE FIRST AMENDED AND RESTATED AGREEMENT FOR
DEVELOPMENT OF PROPERTY IN THE CITY OF CLEARWATER
BETWEEN
THE CITY OF CLEARWATER, FLORIDA
.��
K& P CLEARWATER ESTATE, LLC
DATED AS OF �]Q ,`�C�tc,, � 3 , 2012
THIS FIRST AMENDMENT TO THE FIRST AMENDED AND RESTATED
AGREEMENT FOR DEVELOPMENT OF PROPERTY 1N THE CITY OF CLEARWATER
(the "Amendment") is made as of this�3 day of a.v , 2012 (the "Effective Date"), by
and between THE CITY OF CLEARWATER, FLO�lorida municipal corporation (the
"City") and K& P CLEARWATER ESTATE, L.L.C., a Florida limited liability company (the
"Developer").
WITNESSETH
WHEREAS, the City and Developer entered into a Development Agreement on March 3, 2005
and recorded in O.R. book 14168, Pa�e 2397 regarding the certain propertv located at eg nerally
100 Coronado Drive, 201, 215 and 219 South Gulfview Boulevard ("Developer's Propert�); and
WHEREAS, the City and Developer subsequentiv amended the Agreement on March 22, 2006
and recorded in Pinellas County Records O.R. Book 15023, Page 1494-1500;
WHEREAS, the City and the Developer entered into to a First Amended and Restated
Development Agreement on December 30, 2008, as recorded in O.R. Book 16466, Pages 1500-
1640, Public Records of Pinellas County, Florida (the "Development Agreement"); and
WHEREAS, one of the major elements of the City's revitalization effort is a preliminar�plan for
the revitalization of Clearwater Beach entitled Beach bY Design;
WHEREAS, Beach by Design called for the construction of pedestrian-oriented improvements
along the east and west sides of South Gulfview Boulevard ("South Gulfview"), which
improvements are known as Beach Walk;
WHEREAS, the Citv adopted Beach bv Design pursuant to the Pinellas Plannin� Council's Rules
in su�ort of the Comprehensive Plan adopted bv the Cit�
WHEREAS, Beach bv Desi�n created a limited number of catalytic resort projects to reposition
and re-establish Clearwater Beach as a c�uali ., family resort communit_y and further provided
for a limited pool of additional hotel units ("Destination Resort Densi Pool") to be made
available for such projects;
WHEREAS, the Destination Resort Density Pool ("DRDP") has a limited life after which time
the unused units will expire; and
WHEREAS, the Developer was allocated 250 DRDP units in 2005 and committed to promptly
commence construction; and
WHEREAS, as a result of the Developer's commitment, the City accelerated construction of
Beach Walk; and
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WHEREAS, the Developer's failure to perform resulted in slower redevelopment of the area and
reduced ad valorem t�es for the propert�
WHEREAS, all other units allocated from the DRDP have been constructed; and
WHEREAS, a key criteria for eligibility for the Destination Resort Density Pool is the operation
of a proposed project as resort hotel operating under a national or international "flag" or other
comparable marketin� affiliation or pro rg am;
WHEREAS, the Developer proposes to develop a resort hotel includin� both a hi�yh end resort
hotel and a mid ran�e resort hotel and associated amenities on certain property fronting on South
Gulfview and, subject to the mutual promises set forth of this Amendment; and
WHEREAS, Developer has requested a three (3Zvear extension to the commencement date for
the Project as provided herein; and
WHEREAS, in consideration for such extension the City requires and the Developer a re�
certain assurances that the Project will be aggressivelv and actively pursued; and
WHEREAS, the Developer proposes to reduce the gross area of the previousl�pproved Project
bv a�proximately 160,000 square feet which will require a modification of Exhibit B to be
reviewed for consistencv with Beach B�gn b�v Council at a later date; and
WHEREAS, the City has conducted such hearings as are required by and in accordance with
Chapter 163.3220 Fla. Stat. (2010) and anv other applicable law; and
WHEREAS, the City has determined that, as of the Effective Date of this Amendment, the
proposed pro�ect is consistent with the City's Comprehensive Plan and Land Development
Re�ulations; and
WHEREAS, the City has conducted public hearings as required b�§ 4-206 and 4-606 of the
Community Development Code;
WHEREAS, at a duly called public meeting on , 2012, the City Council
�proved this Amendment and authorized and directed its execution bv the a�propriate officials
of the Citv;
WHEREAS, approval of this Amendment is in the interests of the City in furtherance of the
Ci ,t�s goals of enhancing the viabilityo uf the resort community and in furtherance of the
objectives of Beach bv Design; and
WHEREAS, Developer has a�proved this Amendment and has dulv authorized certain
individuals to execute this Amendment on Developer's behalf.
WHEREAS, the City and the Developer desire to amend certain terms and provisions of
the Development Agreement, as more fully set forth herein below.
NOW, THEREFORE the City and the Developer agree as follows:
That Section 1.01 paragraphs 14 and 18 are herebv amended to read as follows:
14. "Interval Ownership Units" means a maximum of 200 interval
ownership/timeshare units as defined in the Community Development Code, which will be sold
to more than one owner for use for a period of time not to exceed 30 consecutive days. The
A�plicant is no longer seeking interval ownership/timeshare use for units, therefore paragraph 14
is hereby intentionally deleted as are all references to same contained herein.
18. "Meeting Space" means any building floor area within the Project
which can be used for conference or meeting activities. A breakdown of the floor area dedicated
to meeting space is ^��ed-ke�e�e �� ���'��'��+ "'-`," �~� listed herein below:
Grand Ballroom:
Junior Ballroom:
Meeting Rooms:
11,000 square feet
7,500 square feet
4,100 square feet
2. Section 2.03�1 (c) and (d) are herebv amended as follows:
2.03. Scope of the Project.
*****
c. Hotel — The Hotel shall include 250 Hotel Units, a minimum of twenty
thousand (20,000) square feet of Meeting Space and other amenities accessory to the Hotel,
including, but not limited to restaurants, bars, exercise and spa facilities, outdoor recreation
space, storage, back office and administration areas and other functional elements related to the
Hotel, including not more than thirty-seven thousand (37,000) square feet of retaiU restaurant
floor area as described in Exhibit O attached hereto. Hotel Units shall be required to be
submitted to a rental program requiring that such units be available for overnight hotel guests on
a transient basis at all times, subject to force majeure events or renovation activities making such
rooms unavailable for occupancy.
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3. Section 3.01 para�raph 3 is herebv amended to read as follows:
�
3. Grant of Additional Hotel Units. Subject to the terms and conditions of
this Agreement and compliance with applicable law, the City hereby allocates and grants to
Developer from the Destination Resort Density Pool the right to build two hundred fifty
(250) hotel rooms in addition to the Existing Hotel Units, making the Project Site eligible
to contain a m�imum of four hundred fifty (450) Resort Hotel Units. The allocation of the
Destination Resort Density Pool Units shall expire and be of no further force and effect
unless Developer completes payment of Developer's Pro Rata Share as provided in
Paragraph 5.05 and the Commencement Date occurs on or before three (3) years after the
Effective Date of this Agreement. Notwithstanding the foregoing, the Developer may
request an amendment to this Agreement as provided by the Community Development
Code. The City hereb�grants a three �� extension of the
���� Commencement Date from February 11, 2012 to e������'-�=�i�
three (3Zyears from the effective date of this amendment which is contemplated to be
February 11, 2012. The parties acknowledge that Developer has completed pavment of the
Pro-rata share as required by the Agreement.
4. Section 3.03 para�raph 2. is hereby amended to read as follows:
2. Reservation of Capacitv. The City hereby agrees and acknowledges that, as of
the Effective Date of this Agreement, the Project satisfies the concurrency requirements of
Florida law. The City agrees to reserve the required capacity to serve the Project for the
Developer and to maintain such capacity until three (3) years following the Effective Date of this
Amendment. The City recognizes and acknowledges that the Developer will rely upon such
reservation in proceeding with the Project.
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5. Section 5.04 Paragraph 10, is herebv added to read as follows:
10. Performance Assurance Milestones
As an inducement to the City to extend the time �eriods as �rovided herein, the Developer agrees
to the followin� Performance Assurance Milestones, listed herein ��e�e�v�:
a) On or before February 12, 2012, Developer shall pay $1,000,000 into an interest
bearing escrow account pursuant to a written escrow agreement. Developer, as an
additional condition to the extension, shall provide a copy of the executed contract with
the Architect for the design of the development and preparation of warking drawings.
b) (1) If Developer has filed the application for the building permit for the
project on or before February 12, 2013, on February 12, 2013, an additional $500,000
shall be required to be deposited into the interest bearing escrow account to continue the
extension of the Development Agreement, increasing the principal balance of the escrow
account to $1,500,000. Failure to timely pay such additional amount into the escrow
account shall terminate the Development Agreement.
E
(2) If Developer has not filed the application for the building permit for the
project on or before February 12, 2013, an additional $1,000,000 shall be required to be
deposited into the interest bearing escrow account to continue the extension of the
Development Agreement, increasing the principal balance of the escrow account to
$2,000,000. Failure to timely pay such additional amount into the escrow account shall
terminate the Development Agreement.
(3) If Developer files the application for the building permit for the project
after February 12, 2013, but or on or before August 1, 2013, Developer shall be entitled
to a$500,000 distribution from the escrow account upon the submission of the
application for the building permit for the project. In the event a design change requiring
a modification to the Development Order and/or Development Agreement is mandated by
the hotel flag, the entitlement to such credit shall be extended until eight (8) months
following the date the design change is finally approved by the City.
c) (1) If Developer has actually pulled the building permit for the project on or
before February 12, 2014, an additional $500,000 shall be required to be deposited into
the interest bearing escrow account to continue the extension of the Development
Agreement, thereby increasing the principal balance in the escrow account to $2,000,000
if the application for the building permit for the project has been timely filed and to a
balance of $2,500,000 if not. Failure to timely pay such additional amount into the
escrow account shall terminate the Development Agreement.
(2) If Developer has not pulled the building permit for the project on or before
February 12, 2014, an additional $1,000,000 shall be required to be deposited into the
interest bearing escrow account to continue the extension of the Development Agreement,
thereby raising the principal balance in the escrow account to a minimum of $2,500,000 if
the application for the building permit for the project was timely filed and to $3,000,000 if
the application for the building permit for the project was not timely filed. Failure to timely
pay such additional amount into the escrow account shall terminate the Development
Agreement. When Developer actually pulls the building permit for the project, Developer
shall be entitled to a$500,000 distribution from the escrow account.
d) Developer shall be entitled to immediate �ayment of the entire balance of the
escrow account, if on or before February 12, 2015:
1) Developer closes on a construction loan for project construction;
2) Developer has commenced construction of the project; and
3) Developer has entered into a Mana�ement A�reement with a Hotel/Resort
mana�er who meets the followin� criteria:
a. Demonstrated experience mana �i�n� beach resort facilities;
b. Demonstrated experience mana� Q�_ualitv facilities with 4 star
attributes;
c. Demonstrated experience mana�ing facilities that participate in
Fla� hotel franchise programs;
�
d. Demonstrated experience mana in� hotel facilities with lar�e
volume food and beverage operations; and
e. Demonstrated ex�erience mana �i�n� r�oup/convention sales efforts
for resort facilities.
e) If the Developer does not close on the construction loan and actually commence
construction on or before February 12, 2015, or if Developer does not make a timely escrow
deposit as required herein; or if Developer does not enter into a Management A�reement with a
Hotel/Resort manager who meets the above criteria on or before Februarv 12, 2015, e�e��e€e�e
*'�° � ��*'�° °°*°��;�� ��+, City shall be entitled to immediate distribution of the
escrow deposit upon its demand to the Escrow Agent and the extension of the term of the
Development Agreement will terminate.
� The escrow agent shall be Macfarlane, Ferguson & McMullen, P.A. and the City
and Developer shall be parties to an Escrow Agreement, a copy of which is attached hereto. The
escrow agent shall be permitted to enter into an agreement, as a�roved bv the Cit� for the cash
management of the funds held in escrow with any earnings thereon distributable to the Developer
annually. Monthly statements shall be rendered for such account and provided to Developer and
City. Developer shall restore any losses incurred by the escrow account on account of
fluctuations in the value of permitted investments thereof within 30 days of the date of any
statement evidencing any reduction in the balance of such account below the minimum principal
balance required as of such date.
g) Except as modified hereby
*'�° �:--�* ^�°ra°a ��a D°�*�*°a T'°-,°'^rm°r* "Rr°°m°�t, the terms of the First Amended and
Restated Development Agreement dated 12/30/08 are hereby ratified and confirmed.
6. Section 16.03 paragraph 1 is herebv amended to read as follows:
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 addresses as follows:
To the Developer:
K& P Clearwater Estate, LLC
Attn. Dr. Kiran C. Patel
5600 Mariner, Suite 200
Tampa, FL 33609
with copies to:
J. Paul Raymond, Esq.
625 Court Street, Suite 200
Clearwater, FL 33756
To the Citv:
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attn: City Manager
with copies to:
Pamela K. Akin, Esq.
Clearwater City Attorney
112 S. Osceola Avenue, 3�a Floor
7
Clearwater, FL 33756
7. Effective Date. As provided by §163.3239, Florida Statutes (2010), this
agreement will become effective after being recorded in the public records in the county and 30
days after having been received by the state land planning agency.
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IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of the date set forth in the first paragraph of this Amendment.
THE CITY OF CLEARWATER, FLORIDA
Countersigned:
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$y; -� , • $ � , �+4-�L�-
Frank V. Hibbard, Mayor illiam B. Horne II, City Manager
Approved as to form:
sy: L
Pamela K. Akin, City Attorney
Witness: .
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Printed� T—ame:
ATTEST:
By: i�'-�Q�2 � �,
Rosemarie Call, City C
,�]L�/�I�l:ii
K & P CLEARWATER ESTA
�� � � /
:
�-L. ratei as Man�gm�-�
Member of K& P Holdings, L.C.,
General Partner of K& P
PARTNERS LIMITED
PARTNERSHIP, A FLORIDA
LIMITED PARTNERSHIP,
Managing Member of K& P
Clearwater Estate, LLC
LLC
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STATE OF FLORIDA �
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COUNTY OF ��
The foregoing instrument was acknowledged before me this (�fih day
of , 2012 by Ki 2c�n e�. (-�+�a-►, N!.� , as Ma �► f�l of
K P Holding , L.C., General Partner of K& P Partners Limited Partners� , a lorida Limited
Partnership, Managing Member of K& P Clearwater Estate, LLC.
My Commission Expires: ,PnGy 1. abL3
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Notary Public - Signature
Print Name: 1�1G1iS5g � -�1�5
:�,�Y :y4fi' MEUSSA A. BUS
,*. ,: MY COMMl5SION M D 20 �9
�;�<; EXPIRES: May
��' `' Thru Noiary PubNc Undernriters
'�.ftf t:�`�� Bonded
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