FIRST AMENDMENT TO SECOND AND AMENDED AND RESTATED DEVELOPMENT AGREEMENT
PREPARED BY AND WHEN RECORDED RETURN TO~
KEN BURKE, CLERK OF COURT
PINELLAS COUNTY FLORIDA
INST# 2006050897 02110/2006 at 08:06 AM
OFF REC BK: 14924 PG: 1070-1082
DocType:AGM RECORDING: $112.00
FIRST AMENDMENT TO SECOND AND AMENDED AND RESTATED
DEVELOPMENT AGREEMENT FOR PROPERTY IN THE CITY OF
CLEARWATER
BETWEEN
THE CITY OF CLEARWATER, FLORIDA
AND
CRYSTAL BEACH CAPITAL, LLC,
A FLORIDA LIMITED LIABILITY COMPANY
DATED AS~, 20alt'V
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
THIS FIRST AMENDMENT TO SECOND AND AMENDED AND
REST A TED DEVELOPMENT AGREEMENT (the "Amendment") is made as of this
, s1- day of F"ebruCt-rl ' 200& (the "Effective Date"), by and between THE CITY OF
CLEARWATER, FLORIDA, a Florida municipal corporation (the "City") and
CRYSTAL BEACH CAPITAL, L.L.C., a Florida limited liability company (the
"Developer") .
WITNESSETH
WHEREAS, the City and Beachwalk Resort, LLC, Developer's predecessor in
title, are parties to that certain Second Amended and Restated Development Agreement
as recorded in O.R. Book 13996, Page 2409, Public Records of Pinellas County, Florida
(the "Development Agreement"); and
WHEREAS, to insure and execute the City's goals of revitalizing Clearwater
Beach in accordance with Beach By Design, the City has imposed certain restrictions
upon the Developer and individual Unit Owners as detailed in the Development
Agreement and the exhibits attached thereto; and
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, in consideration of the sum of $10 and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the City and the Developer agree as follows:
1. Recitals. The foregoing recitals are true and correct and are incorporated
herein by reference.
2. Capitalized Terms. Capitalized terms not otherwise defined in this
Amendment shall have the meaning ascribed to such terms in the Development Agreement.
3. Definitions: Section 1.01 is hereby amended to add the following definition:
The term "operator," "hotel operator," or "single hotel operator" shall each mean the single
entity under whose name the Hotel is operated and who is responsible for the daily
operation of the Hotel lobby, front desk, Meeting Space, ballrooms, hotel restaurants, and
all other public areas of the Project and who is solely responsible for the provision of Hotel
services (e.g., room service and concierge services) and maintenance and operation of all
Hotel amenities.
4. Paragraphs 1, 2 and 4 of Section 2.03 of the Development Agreement are
amended as follows and new subparagraphs 6, 7 and 8 are added to the end of Section 2.03:
2.03. Scope of the Project.
Page 2
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
1. The Project shall only include public parking, private parking,
resort hotel, residential and retail uses and appropriate accessory
uses and shall be developed in substantial conformity with the
preliminary plans of development which are attached as Exhibit B.
The Project Site is a "Community Redevelopment District,"
pursuant to the Pinellas County Planning Council's Rules which
authorizes an increase in hotel unit density pursuant to the
provisions of Beach by Design. The intensity of permitted use on
the Project Site shall be:
a. Public Parking - at least 400 spaces.
b. Private parking -at least 350 spaces.
c. Hotel:
i. Units (Rooms) - The Hotel shall include no more than two
hundred fifty (250) hotel units (which may be submitted to condominium
ownership )(individually each a "Hotel Unit" and collectively the "Hotel
Units").
ii. Other Areas - The Hotel shall include 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, beach club, outdoor recreation space,
storage, back office and administration areas and other functional elements
relating to the Hotel, including not more than twenty five thousand
(25,000) square feet of retail/restaurant floor area. In addition, the cabanas
as shown on the approved site development plan, will be accessory
facilities which are not available for rental as overnight accommodation,
contain no beds or pull-out sofas, will only be made available for use by
hotel guests or beach club members and when not rented to hotel guests,
access to the cabana will be prohibited between the hours of 1 a.m. and 6
a.m.
d. Residential Units - not more than 18 units.
2. Nothing shall preclude the Developer from developing or operating
all or a portion of the Project elements using any ownership format
permitted under Florida Statutes including individual ownership
formats in one or more condominiums, provided that there is a
single hotel operator as defined herein and all Hotel Units are
operated in compliance with this Agreement.
4. All Hotel Units shall be licensed as a public lodging facility in
accordance with Florida Statutes, Chapter 509. No Hotel Unit
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
Page 3
shall be occupied by the owner or guest of the applicable Hotel
Unit (the "Unit Owner") for more than 30 consecutive days per
stay. When not occupied by the Unit Owner, the applicable Hotel
Unit shall be made available for rental to the public for transient
occupancy as overnight accommodations. Each Hotel Unit shall
be made available to the public overnight accommodations for no
fewer than 305 days in any calendar year, subject to force majeure
events making such rooms unavailable for occupancy and subject
to the right of the hotel operator to remove such rooms from
service as necessary for maintenance. No Hotel Unit may be used
for any purpose other than overnight accommodations as provided
by the Land Development Code. Individual Hotel Units shall not
be required to be made available for rental to the public as a result
of force majeure events making such rooms unavailable for
occupancy and subject further to the right of the hotel operator to
remove such rooms from service as necessary to assure compliance
of such rooms with the operating standard of such hotel operator.
Unit Owners may act on their own behalf to rent their respective
Hotel Units or may retain either the Developer or a third party
rental agent to provide rental services.
6. In order to assure the high quality resort experience called for
under this Agreement, all 250 Hotel Units shall be maintained and
operated to the operating standards set forth in Exhibit N of this
Agreement.
7. Developer shall maintain a single front desk for the Hotel to
register every Hotel Unit occupant. To assist the City to monitor
the Unit Owners' compliance with the laws and regulations
applicable to such Hotel Units, the hotel operator will control
access to all of the Hotel Units and will, upon the written request
of the City, no more than once per year, provide to the City a
report detailing the total number of nights each Hotel Unit was
occupied and the number of nights each Hotel Unit was occupied
by the Unit Owner (or guest of the Unit Owner) and the number of
nights each Hotel Unit was occupied by a third party hotel guest.
8. All Hotel Units shall be required to be operated as described in this
Section 2.03. Prior to the issuance of a certificate of occupancy for
the resort Hotel, the Developer shall record a covenant and
restriction which is enforceable by the City, substantially in
accordance with Exhibit F, limiting the use and operation of the
Hotel Units and implementing this paragraph.
5. Section 3.01 paragraph 3 is amended as follows:
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
3.01. Land Development Regulations.
3. Allocation of Units from Hotel Unit Pool. Subject to the terms and
conditions of this Agreement, the City hereby allocates and grants to
Developer from the Hotel Unit Pool an additional two hundred nine (209)
Hotel Units to the Project Site in accordance with applicable law. The
allocation of additional hotel units from the Hotel Unit Pool shall expire
and be of no further force and effect unless the Commencement Date
occurs on or before December 31, 2006.
6. Section 3.03 paragraph 2 is amended as follows:
3.03. Concurrency.
2. Reservation of Ca{)acitv. 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 December 31, 2006 and that such period shall be
automatically extended for an additional three (3) years if the Developer
commences construction by December 31, 2006. The City recognizes and
acknowledges that the Developer will rely upon such reservation in
proceeding with the Project.
7. Section 5.03 paragraph 2 is amended to read as follows:
2. Proiect Site. In the event the Developer fails to commence
construction by December 31, 2006, at Developer's request the City
agrees to purchase the Project Site as described in Exhibit A at fair market
value, but in no event shall the purchase price exceed $6,000,000. The
fair market value shall be established by an appraisal process. The
appraiser shall be directed to establish the value of the property assuming
Third Street and South Gulfview Drive are not vacated and disregarding
the additional development rights (209 hotel units) provided in the
Development Agreement. The appraisal of the Project Site shall reflect
the higher of: (i) the highest and best use of such property at the time of
appraisal, or (ii) the value of the Project Site with existing buildings and
existing sixty-five (65) hotel units in place at the time of execution of the
Development Agreement (i.e. as existing in 2002, before demolition, but
valued at the time of the appraisal in 2006). The appraisals shall be
conducted by two (2) appraisers retained by the City. One of the
appraisers shall be selected from a list of qualified appraisers submitted to
the City by the Developer. In the event that the two (2) appraisals are
within twenty percent (20%) of each other, the fair market value shall be
the average of the two (2) appraisals. In the event that the appraisals differ
by more than twenty percent (20%), the two appraisers shall select a third
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
Page 5
appraiser from the City's master list of qualified appraisers, including the
list submitted by the Developer, and the third appraiser shall select among
the two (2) appraisals which in the opinion of the third appraiser most
accurately represents the fair market value of the property.
8. Section 5.04, paragraph 7 is amended as follows:
Concessions. The City shall grant the Developer authority to operate
concessions on land to the west of the existing centerline of South
Gulfview Drive, adjacent to the Project site, subject to any existing
franchise or concession rights and compliance with all requirements of the
City Code, and subject to a license agreement to be approved by the City,
substantially in the form as Exhibit K. The license agreement shall be for
a term of 50 years, commencing on the date the facilities are available for
use, and be subject to a right of termination by the City for an uncured
breach of a material obligation by the Developer. Such concessions may
include a facility open to the public which provides towels, lockers,
minimal beach sundries, and other beach gear required to operate a first-
class beach hotel, but not including benches, lounges, umbrellas and side
tables. The concession facility shall be no more than 1,200 square feet,
MOL, be no higher than one story and shall not display the name Hyatt or
any other hotel-related mark on the structure of the facility. Additionally,
the persons working within the facility shall wear no pins or other
identification bearing the name Hyatt or any other hotel-related mark.
Such facilities shall be built into the beach landing portion of the
pedestrian overpass, as more particularly depicted on Exhibit H.
Notwithstanding the foregoing, in regard to beach chairs, lounges,
umbrellas, side tables and the level of services associated with the
provision thereof ("Beach Concessions"), the City shall retain the right to
utilize a concessionaire to provide said Beach Concessions. The City
agrees that the City concessionaire shall offer the Beach Concessions
which comply with the standards set out on Exhibit L, attached hereto and
made a part hereof. If the City's franchisee fails to comply with the
standards in Exhibit L Developer may send written notice to the City
specifying the non-compliance, after which the City has thirty (30) days to
cure said non-compliance. In the event that the non-compliance is not
cured within thirty (30) days, the City agrees that the Developer may
thereafter provide the Beach Concessions and shall retain all income
derived therefrom. If the Developer assumes control of the Beach
Concessions, Developer shall have a five year term to operate the Beach
Concessions, subject to the provisions herein below. The Beach
Concessions may be located only on that portion of the beach directly west
of the Project Site and as defined by two parallel lines running from the
northern-most boundary of the project and the southern-most boundary of
the project west to the mean high water mark. Further, there shall be no
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
Page 6
indication or branding on chairs, tables, umbrellas or other similar items
sold or rented from the concession facility bearing the name Hyatt or any
other hotel-related mark. If the Developer assumes control of the Beach
Concessions, and the City receives documented complaints that the Beach
Concessions are being denied to non-hotel guests, or if Developer fails to
comply with the standards set out in Exhibit L, the City may send written
notice to Developer specifying the non-compliance. In the event that the
non-compliance is not cured within thirty (30) days, the City may take
back the Beach Concessions.
9. Section 5.04 paragraph 1 is amended as follows:
5.04. City's Obligations.
1 South Gulfview and Beach Walk Improvements. The City shall be
responsible for the design, construction and funding (subject to the
payment by Developer of its pro rata share as provided herein) of the
South Gulfview and Beach Walk Improvements. The City further agrees
to make reasonable efforts to complete construction of that portion of
South Gulfview and Beach Walk Improvements abutting the Project
defined as Phase I and Phase II in the May 2, 2005 Post Buckley 100%
Drawings for Beachwalk prior to the issuance of the Certificate of
Occupancy for the Project contingent on payment by Developer of
Developer's Pro Rata Share (defined herein) and the Accelerated
Construction Payment (defined herein) to the City prior to the City
awarding the construction bid. The City and the Developer recognize that
staging and site access issues will have a substantial impact on the Beach
Walk construction schedule. Further, construction of the Beach Walk
Improvements as shown in the May 2, 2005 Post Buckley 100% Drawings
for Beachwalk is contingent upon the availability of the Relocated First
Street (alk/a Second Street). The City agrees that issuance of the
Certificate of Occupancy shall not be unreasonably withheld, conditioned
or delayed.
10. Section 5.05 paragraph 5 is amended as follows:
5.05. Obligations of the Developer.
5. Cost of South Gulfview and Beach Walk.
a. The City's portion of the Transportation Impact Fee shall be
credited to the Developer against the cost of Developer's fair share
of the South Gulfview and Beach Walk Improvements as described
in subsection (b) below.
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
Page 7
b. The Developer shall be responsible for a pro rata share of the cost
of the South Gulfview and Beach Walk Improvements, which shall
be equal to the net cost of the South Gulfview and Beach Walk
Improvements multiplied by a fraction in which the front footage
of the Project Site is the numerator and the total frontage along
South Gulfview and Beach Walk Improvements is the
denominator.
SPR = (F PROJ/F SGBW) x (CSGBW)
SPR = Pro Rata Share
FpROJ = Frontage of Project Site
FSGBW = Total Frontage along South Gulfview and
Beach Walk Improvements
CSGBW = Net Cost of South Gulfview and Beach
Walk Improvements
The City has determined that the Developer's pro rata share is One
Million One Hundred Ninety Thousand Dollars ($1,190,000.00)
("Developer's Pro Rata Share"). In addition, Developer agrees to
pay the City an additional Two Hundred Eighty Thousand Dollars
($280,000.00) for redesign of the Beach Walk Improvements to
accommodate the Project (Redesign Payment). If Developer's Pro
Rata Share and Redesign Payments are not made by April 1, 2005,
the amount due will be increased each month by the Construction
Cost Index as published monthly by the U.S. Dept. of Commerce.
Such pro rata share shall be paid prior to issuance of the
foundation permit for the project.
c. In the event that any property which fronts on the South Gulfview
and Beach Walk Improvements is proposed for redevelopment
using the pool of additional resort units established pursuant to
Beach by Design, the developer of such property shall be required
to pay to the City a pro rata share of the cost of the South
Gulfview and Beach Walk Improvements as a condition of
development approval.
11. Section 5.05 paragraph 9 is amended as follows:
9. Commencement of Construction. The Developer shall commence
construction of the Project by December 31, 2006, and shall thereafter
diligently pursue completion of the Project.
12. Section 7.02. paragraph 1 is amended as follows:
7.02. Construction.
Page 8
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
1. Commencement. The Developer shall construct the Garage Access
Improvements, substantially in accordance with the Plans and
Specifications therefor. The Developer shall commence construction by
December 31, 2006 in accordance with Section 5.05(12).
a. For purposes of this Section 7.02, "commence construction" means
commencement of meaningful physical development of that part of
the Project as authorized by the Building Permit therefor which is
continued and diligently prosecuted toward completion of that part
of the Project.
b. All obligations of the Developer (including deadlines in the
Commencement Date) with respect to commencement and
continuation of construction in regard to the Garage Access
Improvements, shall be subject to delays and extensions from time
to time for Unavoidable Delay (see Article 15). The Developer
shall not be deemed to be in default of this Agreement to the extent
construction of the Project, or a part thereof, is not complete by
reason of Unavoidable Delay.
13. Exhibit F. Sections 2 of Exhibit F to the Agreement are deleted in their
entirety and replaced with the following:
2.1.1 The Hotel Units shall be restricted as follows:
i. No Hotel Unit shall be occupied by the Unit Owner
or any other occupant for more than 30 consecutive days
per stay. When such Hotel Units are not being occupied by
their respective owners, the Hotels Units shall be made
available to the public for rental as overnight
accommodations as defined in the Clearwater Community
Development Code, The Hotel Units shall be made
available to the public for rental as overnight
accommodations for no fewer than 305 days in any
calendar year.
ii. All Hotel Units shall be licensed as a public lodging
facility in accordance with Florida Statutes, Chapter 509.
111. All Hotel Units shall be maintained and operated to
the operating standards (the "Operating Standards") set
forth in Exhibit N of that certain Second Amended and
Restated Development Agreement as recorded in O.R.
Book 13996, Page 2409, Public Records of Pinellas
County, Florida (the "Development Agreement"). Owners
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
Page 9
of the Hotel Units may act on their own behalf to rent their
respective units or may retain either the Developer or a
third party rental agent to provide rental services, however,
in such event the owners of the Hotel Units shall be
responsible for compliance with the Operating Standards
and the terms and conditions of the Development
Agreement, as amended, including, but not limited to,
Exhibits E, F and N. Upon request of the City, such Hotel
Unit owner (other than those Unit Owners whose Hotel
Unit is managed by the hotel operator for the Hotel) shall
be required to provide, at the owners expense, independent
certification by a mutually agreed upon Hotel Inspector, of
the Hotel Unit's compliance with the Operating Standards
and the terms and conditions of the Development
Agreement, as amended, including, but not limited to,
Exhibits E, F and N. In addition to remedies available by
law, the City shall have the right to prohibit use of and
access to any unit that is not operated to the Operating
Standards until such time as the owner of such unit
demonstrates to the reasonable satisfaction of the City that
unit is in compliance with this section.
2.1.2 The Other Areas of the Hotel, including the front desk,
shall be operated by a single, licensed operator of the Hotel.
2.1.3 No Hotel Units shall be used as other than overnight
accommodations as provided in the Land Development Code, nor
shall any Hotel Unit be used as a primary or permanent residence.
2.1.4 As used herein, the terms "transient occupancy," "public
lodging establishment," "hotel," "resort condominimum," 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 unit owners and their guests and inviteesand all
hotel guests, visitors and employees, other than emergency and
security personnel required to protect the resort Hotel (as
designated by the Developer and/or its hotel operator) 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
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
Page 10
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 insure that all units owners and their guests and invitees
and all hotel guests, visitors and employees will be evacuated in
advance of the issuance of a forecast of probable landfall.
14. Easement. Developer shall provide a public pedestrian access easement
10 feet wide within the northern-most bay of the Project extending from Coronado to
Gulf View Boulevard. Such easement shall include: a horizontal pole or gate at the east
end of the easement which is long enough to restrict public vehicular traffic unless lifted
as necessary, but not so long as to overly impede public pedestrian traffic; appropriate
signage indicating that the area permits public pedestrian access; and appropriate lighting
for public pedestrian traffic. The easement shall remain in place until Second Street is
open. The access easement shall not be used for general public vehicular through traffic,
but will be used by vehicular traffic directly associated with the project.
SIGNATURE PAGES TO FOLLOW
Page 11
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
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
Attest:
~
By:c -~.
. City rk
/1$- ~.
By: j~ ~
~ayor~ .
Approved as to form:
jJjj
Pamela K. Akin, Esquire
City Attorney
STATE OF FLORIDA )
)
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this Jt; day
of , 2006 by F;().('\\L\..-kbbcudan~Ml-tIc..Go~d;~ ~ayor and the
Ci ely, for the City of Clearwater, Florida, on behalf of the City.
~~.~
Notary Public - Signature
Print Name: ~O:l"'5~aLl~
~y Commission Expires:
,." "",.
$~~"1.~ Karen B. Vaughan
::f "Ji" i~ Commission # 00500919
~~~ Expires December 20, 2009
, ,w.~~' BOIl_ Till, '"1/1 Inl.""II.1 In. 800-385-7018
[SIGNATURES CONTINUED ON NEXT PAGE]
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06
Page 12
Signed, sealed and delivered
in the presence of:
~~
(Witness Signature)
Print Name: Ch,,;~ "'B A-.s .,-1f.5
c:Q' --
(Witness Signature)
Print Name: /7J/)~ ~
CRYSTAL BEACH CAPITAL, LLC
By: NJ DEVELOPMENT COMP ANY,
L.L.C., . s sole manager
Neil
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
:tIl
The foregoing instrument was acknowledged before me this l5... day of JAI( UhA.Y , 2006, by
Neil J. Rauenhorst, manager of NJR Development Company, L.L.C., sole manager of Crystal
Beach Capital, LLC, a Florida limited liability company, on behalf of the companies. He [select
one:]
()() is personally known to me;
or
( ) produced a Florida driver's license as identification
First Amendment to Crystal Beach Capital LLC Development Agreement 1-13-06