13-04RESOLUTION NO. 13 -04
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CLEARWATER AND BAY
ESPLANADE PROJECT, LLC; PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the City of Clearwater is desirous of entering into a development
agreement with Bay Esplanade Project, LLC; 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 Bay
Esplanade Project, LLC, a copy of which is attached as Exhibit "A," is hereby approved.
Section 2. This resolution shall take effect immediately upon adoption.
Section 3. The City Clerk is directed to submit a recorded copy of the
Development Agreement to the state land planning agency no later than fourteen (14)
days after the Development Agreement is recorded.
PASSED AND ADOPTED this 18th day of July , 2013.
�et eo g c Ncecke tcf
George N. Cretekos
Mayor
Approved as to form: Attest:
k 4
Leslie K. Douga ides
City Attorney
Rosemarie Call
City Clerk
Resolution No. 13 -04
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ( "AGREEMENT ") is dated the
day of July, 2013, and entered into between Bay Esplanade Project, LLC, a Florida
Limited Liability Company( "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 0.95 acres of real property
( "Property ") in the corporate limits of the City, more particularly described on Exhibit "A"
attached hereto and incorporated herein; and
WHEREAS, the Developer desires to develop the Property to add overnight
accommodation units, minimal meeting space for guest use, pool/tiki bar, lobby and
parking with parking spaces, generally conforming to the architectural elevation
dimensions shown in composite Exhibit "B" (collectively, the improvements are the
"Project "); and
WHEREAS, upon completion the planned resort will contain 102 units, which
includes Fifty -five (55) 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. (2012) 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 July 18, 2013, the City Council
approved this Agreement and authorized and directed its execution by the appropriate
officials of the City; and
WHEREAS, the Development Review Committee approved the design and site
plan as FLS2013 -02006 on June 6, 2013, 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. Incorporation 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. Property Subject to this Agreement. The Property described in
Exhibit "A" is subject to this Agreement ( "Property ").
3.1 The Property currently has a land use designation of Resort Facilities High
(RFH) and is zoned Tourist (T).
3.2. The Property is owned in fee simple or under contract to be owned in fee
simple by the Developer.
3.3 The Property is generally located at 650 Bay Esplanade, Clearwater, FL
33767 as more further described in Exhibit "A ".
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SECTION 4. Scope of Project.
4.1 The Project shall consist of no more than 102 overnight accommodation
units. Such units may be traditional hotel rooms or fractional ownership units, as defined
by the Community Development Code.
4.2 The Project shall include 126 parking spaces, as defined in the Community
Development Code.
4.3 The design of the Project, as represented in Exhibit `B ", is consistent with
Beach by Design, except as otherwise shown on Exhibit `B ".
4.4 No more than 25 % of overnight accommodation units shall have full
kitchens. Such kitchens shall be limited to those units identified on the plans in Exhibit
"B" as "suites" and shall not be located in any unit received from the Hotel Density
Reserve.
4.5 The height shall not exceed seventy -five (75) feet from Base Flood
Elevation, as defined in the Code.
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
4606G. 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.
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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.
Property:
6.1.3 The following restrictions shall apply to development of the
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 Development Review Committee
( "DRC ") as case number FLS2013- 02006. 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, as defined in the Code, and thus
requiring further approval by the DRC 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 permits and commenced
construction on the development within four (4) years from the effective
date of this Agreement ( "Commencement Date "). Nothing herein shall
restrict Developer from seeking an extension of this Agreement, and the
Commencement Date, pursuant to the Code.
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 the covenant of
unified use and 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. 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
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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.
6.1.5 Return of Units to Reserve Pool. Any units granted to Developer
from the Hotel Density Reserve not timely constructed in conjunction with the
Project approved by FLS 2013 -02006 shall be returned to the Hotel Density
Reserve and be unavailable to Developer for use on this Project.
6.1.6 Transient Use. Occupancy in the overnight accommodation units from the
hotel density is limited to a term of less than one (1) month or thirty (30)
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 (30) days,
provided every occupancy is limited to thirty (30) consecutive days or one (1)
month.
6.1.7 Inspection of Records. Developer shall make available for inspection to
the City its books and records pertaining to each Hotel Density Reserve unit upon
reasonable notice to confirm compliance with these regulations as allowed by
general law.
6.1.8 Limitation on Amplified Music. Developer agrees that there shall be no
outdoor amplified music at the Project after 11:00 p.m. on Sunday through
Thursday, or after 12:00 midnight on Friday and Saturday.
6.2 Obligations 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 The Project shall receive Fifty -Five (55) 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.
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Development of the Property will be governed by the concurrency ordinance provisions
applicable at the time of development approval. 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, including the
Metropolitan Planning Organization concurrency management.
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 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.
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 this Agreement is consistent with the City Comprehensive Plan
and the Code.
SECTION 10. Termination.
10.1 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.
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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:
11.1.1 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.
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: Bay Esplanade Project, LLC, a Limited Liability Company
do deNunzio Group, LLC
305 Cambridge Street, Suite 3
Cambridge, MA 02141
Tel: 617 - 945 -2555
With Copy to: Katherine E. Cole, Esq.
Hill Ward Henderson
311 Park Place, Suite 240
Clearwater, FL 33759
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 third 3rd day following
deposit in the United States mail, certified mail, return receipt requested. The parties may
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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
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.
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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 - Compliance. 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
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.
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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, 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.
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, the Developer, and the Association 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:
J
Print Name teAlitenne E• Ca
a
P /in {Name lepf kS1)CO511
As to "Developer" J
Print Name:
nzio, Manager
Esplanade Project, LLC
CITY OF CLEARWATER, FLORIDA
By:
William B Home II,
10
Print Name
As to "City"
City Manager
Attest:
Rosemarie Call, City Clerk
Countersigned:
George Cretekos, Mayor
Approved as to Form:
Leslie K. Dougall -Sid
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS.1._
The foregoing instrument was acknowledged before me this i D day of
, 2013, b1A51-in be uv13 -11-, He is [ ] personally known to me
or has VI produced IJ (k as identification.
Notary Public
Print Name: N�%w Sprague
My Commission Expires:
STATE OF FLORIDA
COUNTY OF PINELLAS
11
,; 0At' NICOLE SPRAGUE
,gh s •r_ MY COMMISSION # EE 209161
June 1? t N Bonded uENotay Public Undenditers
The foregoing instrument was acknowledged before me this day of
, 2013, 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:
My Commission Expires:
12
13
EXHIBIT "A"
Legal Description of Project Site
14
LEGAL DESCRIPTION
PARCEL 1
LOT 1, BLOCK 82, UNIT NO. 5, MANDALAY REPLAT, ACCORDING TO THE MAP OR PLAT THEREOF AS
RECORDED IN PLAT BOOK 20, PAGE 27, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA AND
PLAT BOOK 20, PAGE 48, PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 2
LOT 2, BLOCK 82, MANDALAY UNIT #5, ACCORDING TO THE MAP OR PLAT THEREOF, AS RECORDED IN
PLAT BOOK 20, PAGE 27, PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA, LOT 2, FURTHER DESCRIBED
AS FOLLOWS:
FROM THE NORTHWEST CORNER OF BLOCK 82, OF UNIT 5, MANDALAY, AS RECORDED IN PLAT BOOK 20,
PAGE 48, PINELLAS COUNTY RECORDS, RUN SOUTH ALONG THE EAST LINE OF CHEROKEE AVENUE, 248
FEET FOR POB, THENCE RUN N88'04'43 "E, 121 FEET; THENCE RUN S01'37'47 "E, 70 FEET; THENCE RUN
S88'06'02 "W, 123 FEET TO THE EAST LINE OF CHEROKEE AVENUE; THENCE RUN NORTH 70 FEET TO POB.
(CHEROKEE AVENUE IS NOW KNOWN AS POINSETTIA AVENUE)
PARCEL 3
LOT 11, BLOCK 82, MANDALAY UNIT NO. 5, ACCORDING TO THE MAP OR PLAT THEREOF, RECORDED IN
PLAT BOOK 20, PAGE 27, AND PLAT BOOK 20, PAGE 48, OF THE PUBLIC RECORDS OF PINELLAS COUNTY,
FLORIDA.
PARCEL 4
LOT 12, BLOCK 82, MANDALAY UNIT NO. 5, ACCORDING TO THE MAP OR PLAT THEREOF, RECORDED IN
PLAT BOOK 20, PAGE 27, AND PLAT BOOK 20, PAGE 48, OF THE PUBLIC RECORDS OF PINELLAS COUNTY,
FLORIDA.
PARCEL 5
LOT 13, BLOCK 82, MANDALAY UNIT NO. 5, ACCORDING TO THE MAP OR PLAT THEREOF, RECORDED IN
PLAT BOOK 20, PAGE 27, AND PLAT BOOK 20, PAGE 48, OF THE PUBLIC RECORDS OF PINELLAS COUNTY,
FLORIDA.
EXHIBIT A
EXHIBIT "B"
Site Plan
15
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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 , 2013, by Bay Esplanade Project, LLC, a Florida Limited Liability
Company ( "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 it's 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 -size
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 , passed and approved on
2013, 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 Operation. 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:
2.1.1 A minimum of Fifty -five 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,
16
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.
2.1.2 All other 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 (2012).
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 Severability. 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 e 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 day of
, 2013.
In the Presence of: Bay Esplanade Project, LLC, a Florida limited
Liability company
By:
Print Name Dustin de Nunzio
17
Print Name
As to "Developer"
CITY OF CLEARWATER, FLORIDA
By:
Print Name: William B Horne II,
City Manager
Print Name
As to "City"
Attest:
Rosemarie Call, City Clerk
Countersigned:
George Cretekos, Mayor
Approved as to Form:
Leslie K. Dougall -Sides
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of , 2013, by
He is [ ] personally known to me or has [ ] produced
as identification.
Notary Public
Print Name:
My Commission Expires:
18
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
2013, 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:
My Commission Expires:
19
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
, 2013, by Bay Esplanade Project, LLC ( "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 , 2013 (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
, 2013.
20
In the Presence of: Bay Esplanade Project, LLC, a Florida limited
Liability company
By:
Print Name Dustin de Nunzio
Print Name
As to "Developer"
CITY OF CLEARWATER, FLORIDA
By:
Print Name: William B Horne II,
City Manager
Print Name
As to "City"
Attest:
Rosemarie Call, City Clerk
Countersigned:
George Cretekos, Mayor
Approved as to Form:
Leslie K. Dougall -Sides
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of , 2013, by
He is [ ] personally known to me or has [ ] produced
as identification.
Notary Public
Print Name:
My Commission Expires:
21
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
2013, 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:
My Commission Expires:
22
4653085v2