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PROPOSED REDEVELOPMENT IN THE CITY OF CLEARWATER II I I I I I I I I I I I I I I I I I I. E"'D 1- :#=;),3 10,7.99 \l ..... \l Q'\\d P'ROPOSED REDEVELOPMENT in the City of Clearwater by JMC Communities ~"'. -./ .. /"/.",,,'. .' ~ ,i' g_~l""r~ .-:. U'''''_ __ . -~-- -. - ;"-A[~~~" I ' 'a..:; 4_ I ;... 0,: 'r~gg. S ~ ....... ,,~r-:;::__..~,_.,7.l':""""__,.. ._ ~~~! :'3;~~~D:.~~:: :~~~ ----- I I I I I I I I I I I I I I I I I I I TABLE OF CONTENTS PETITION REVITALIZATIONIREDEVELOPMENT AREA REDEVELOPMENT PARCELS REVITALIZATION PROGRAM · OveIView of Proposed Revitalization Program · Area Location Map · Site Location Map · Conceptual Site Plan · Conceptual Elevation · Current Photographs Showing Existing Condition of Acquisition Parcels: Looking North and Northwest Looking West and Southwest · Conceptual Elevation from Mandalay Avenue · Phase Map · Economic Impact Analysis LAND AsSEMBLY AsSISTANCE AND REIMBURSEMENT AGREEMENT DEVELOPER'S QUALIFICATIONS SWORN STATEMENT I I I I I I I I I I I I I I I I I I I PETITION FOR LAND ASSEMBL Y/REDEVELOPMENT ASSISTANCE Petitioner, MANDALAY BEACH CLUB, LTD., a Florida limited partnership ("Developer") petitions the City of Clearwater for land assembly/redevelopment assistance pursuant to Ordinance No. 6410-99 and states: 1. Developer proposes to redevelop certain real property located in the City of Clearwater as described in the attached Exhibit "A" (the "Candidate Revitalization Redevelopment Area"). The Candidate Revitalization/Redevelopment Area is bounded generally by North Mandalay on the East, Papaya on the South, San Marco on the North and the Gulf of Mexico on the West. The Candidate Revitalization/Redevelopment Area has been designated as a City of Clearwater Revitalization/Redevelopment Area by Resolution adopted by the City Commission of the City of Clearwater dated August 19, 1999. The Candidate Revitalization/Redevelopment Area includes three parcels for which land assemblylredevelopment assistance is requested, such parcels being described in the attached Exhibit "B" (the "Commercial Parcels"). 2. Developer controls at least sixty percent (60%) of the Candidate Revitalization Redevelopment Area in which the Commercial Parcels proposed to be acquired/redeveloped are located. 3. A description of the Developer's proposed revitalization or redevelopment program is attached as Exhibit "C." Developer estimates the fair market value of the proposed redevelopment when completed to be $70,000,000.00. 4. Developer has made bonafide offers to purchase all Commercial Parcels from the owners of record, each of which offers was open for a period of at least thirty (30) days and none of the offers was accepted. 1 I I I I I I I I I I I I I I I I I I I 5. The Developer requests land assembly/redevelopment assistance in regard to the three (3) Commercial Parcels in two (2) stages of potential assistance to accomplish the City's redevelopment objective: (a) StaQe 1. An initial effort involving Developer and City participation in public/private redevelopment agreements with the owners of the Commercial Parcels providing for the redevelopment/revitalization of the Commercial Parcels in a manner and form which is consistent with the City's redevelopment/revitalization objectives; and (b) StaQe 2. In the event that voluntary agreements with the owners of the Commercial Parcels are not possible and the existing improvements and uses continue to have a negative, blighting effect on the planned redevelopment/revitalization of the Candidate Redevelopment/Revitalization Area, the City may be requested to assemble such parcels using eminent domain powers and convey such parcels to Developer. In consideration for the City's land assembly/redevelopment assistance, Developer agrees to reimburse the City for costs incurred in the provision of land assembly/redevelopment assistance in accordance with the Land Assembly Assistance and Reimbursement Agreement which is attached as Exhibit "D." 6. Developer has the qualifications, experience and financial capacity to carry out the proposed program of redevelopment. A summary of the projects developed by Developer and entities under common control is attached as Exhibit liE." 2 I I I I I I I I I I I I I I I I I I I 7. Developer further states that: (a) The proposed redevelopment will further the City's redevelopment goals and objectives in the City's Comprehensive Plan; (b) The proposed redevelopment is unlikely to occur without land assembly/redevelopment assistance; (c) The proposed redevelopment program will be economically successful; and (d) The proposed redevelopment will have a positive fiscal impact on the City of Clearwater taking into consideration any costs to be assumed by the City of Clearwater in carrying out the proposed land assembly assistance. 8. Attached as Exhibit "F" is a sworn statement of Developer as to matters covered by Paragraphs 2, 3, and 4 above as required by Ordinance No. 6410-99. Respectfully submitted this 2- Lj- day of September, 1999. MANDALAY BEACH CLUB, LTD., a Florida limited partnership By: JMC COMMUNITIES OF CLEARWATER III, INC., neral Partner By: ichael Cheezem ief Executive Officer \\LegaI1 \sys~mc\clearwater property\Petition Land Assembly & Redev.wpd 3 I I I I I I I I I I I I I I I I I I I 5. The Developer requests land assembly/redevelopment assistance in regard to the three (3) Commercial Parcels in two (2) phases of potential assistance to accomplish the City's redevelopment objective: (a) Phase 1. An initial effort involving Developer and City participation in public/private redevelopment agreements with the owners ofthe Commercial Parcels providing for the redevelopment/revitalization of the Commercial Parcels in a manner and form which is consistent with the City's redevelopment/revitalization objectives; and (b) Phase 2. In the event that voluntary agreements with the owners of the Commercial Parcels are not possible and the existing improvements and uses continue to have a negative, blighting effect on the planned redevelopment/revitalization of the Candidate Redevelopment/Revitalization Area, the City may be requested to assemble such parcels using eminent domain powers and convey such parcels to Developer. In consideration for the City's land assembly/redevelopment assistance, Developer agrees to reimburse the City for costs incurred in the provision of land assembly/redevelopment assistance in accordance with the Land Assembly Assistance and Reimbursement Agreement which is attached as Exhibit "D." 6. Developer has the qualifications, experience and financial capacity to carry out the proposed program of redevelopment. A summary of the projects developed by Developer and entities under common control is attached as Exhibit "E." 2 I I I I I I I I I I I I I I I I I I I 7. Developer further states that: (a) The proposed redevelopment will further the City's redevelopment goals and objectives in the City's Comprehensive Plan; (b) The proposed redevelopment is unlikely to occur without land assembly/redevelopment assistance; (c) The proposed redevelopment program will be economically successful; and (d) The proposed redevelopment will have a positive fiscal impact on the City of Clearwater taking into consideration any costs to be assumed by the City of Clearwater in carrying out the proposed land assembly assistance. 8. Attached as Exhibit "F" is a sworn statement of Developer as to matters covered by Paragraphs 2, 3, and 4 above as required by Ordinance No. 6410-99. Respectfully submitted this _ day of September, 1999. MANDALAY BEACH CLUB, LTD., a Florida limited partnership By: JMC COMMUNITIES OF CLEARWATER III, INC., General Partner By: J. Michael Cheezem Chief Executive Officer \\LegaI1\sys~mc\clearwater property\Petition Land Assembly & Redev.wpd 3 A north " REVITALIZATIONIREDEVELOPMENT AREA I I I I I I I I I I I I I I I I I I I Redevelopment Parcels JMC Controlled Property Commercial Parcels Total SF 88,832 33,562 122,394 % 73% 27% 100% Note: North Gulfview Avenue accounts for 5% of the Controlled Property. Description of Commercial Parcels The Commercial Parcels are located along Mandalay Avenue (Lots 72 - 85) as depicted above. There are a total of three (3) Commercial Parcels, subdivided as follows: Lots 72-77 (15,000 SF); Lots 78-79 (5,000 SF); and Lots 80-85 (13,562 SF). I I I I I I I I I I I I I I I I I I I Clearwater Beach JMC Communities proposes to redevelop the one block area on Clearwater Beach, between Mandalay Avenue and the Gulf of Mexico, bordered by Papaya Street on the South, and San Marco Street on the North. The Proposed Revitalization Program would consist of three phases. Phase I and II would incorporate the construction of a condominium resort community in two buildings located on the Western portion of the site, know as the "controlled property. n This effort would include the teardown and removal of eleven structures built primarily in the late 1950's and early 1960's. The approximate combined square footage ofthese buildings is 36,000 square feet, and the combined assessed value is $3,300,000. The two new buildings, each 150 feet in height, will have a combined total of 157 condominium units, plus parking and amenities. Unit sizes will range from 1300 square feet to 2500 square feet, with a total square footage of approximately 270,000 square feet. Phase III, the "Commercial Phase, n would consist of remodeling and/or rebuilding the 100-foot deep commercial parcels located directly to the West of Manda lay Avenue. The existing one-story structures have a combined square footage of approximately 24,000 square feet, and a combined assessed value of $1,500,000. The completed redevelopment of this phase would provide a new exterior fayade on Mandalay Avenue, as well as Papaya, and San Marco Streets. This phase also could include up to 10 apartments over the retail space. The total combined square footage of the Commercial Phase would range between 20,000 and 32,000 square feet. When completed, the Projected Fair Market Value of the development is $70 million, which translates to an assessed value of over 10 times the existing assessed value of $4.8 million. ( AREA LOCATION MAP J dVW NOl.L V'::>O'} iiI.LIS aleJS ollON y I I I I I I I I I I I I I I I ~ J ~ ... .. I ... w '" . ,-f I ~A p.',..1 I I I I l I I G ) I I I I I I [ CONCEPTUAL SITE PLAN) I I I I I I I I I I I I I I I I I I I "~j -":.11..1 z o .... ~ ~ ..:l ~ g ~ z o U ~ I f j: i I ~ !I';.;..B,... IL~~ J \-,-~~-,~ L;'~i~{ i I ."f"':i:)*,":r-ii<:~,. ,~_.~.:..:,', . 1 , i f { I \. ~t; i.:..' d , i l1 :. 'f, .ii N .G;;2"~ .. eI) /iril >-< ~ /iril Il.. o f (.; z; >-< E- el) >< ~ ~ o eI) :I: Il.. <( l:t:: (.; o E- o f E- z; ~ u it I ~ ~. .,L.;.p.,. III .... ~ Q,j := 5 -< ..... ~ -; ."Cl = ~ ~ l:)l) = ~ ..d .... '"' o Z l:)l) ~ o j 1:: :~, ~' , I j.......: I I I I i I , ,I, ...'.. S' . .... '. ~..~~,.~i ..~.'.. .." ."'f ..".." ..' .'" ..' uC" ,~t.,.,., r ' i ''c.'' H~~/ t:~ ' ~~::: ~ \j,,'.~ . ;:."1. ' ~ l/.l ~ ..... ~ p::; ~ ll< ~ o ~ l/.l B ~ l/.l ~ o ~ o ~ ; u I I I I I I I I I I I I I I I I I I I ~ ~ ~ ~ ~ ~ z a ~ ~ ~ ~ JiI;l u z o U I I I I I I I I I I I I I I I I : PHAsEMAP J I I I I I I I I I I I I I I I I I I I MARKET VALUE · Phase I · Phase II · Phase III Total $37 Million $28 Million $ 5 Million $70 Million TAXES · Increase in Tax Base · Increase in Total Property Tax Revenue · Increase in Annual Tax Revenue Allocated to City $54 Million $1.2 Million $300,000 CONSTRUCTION · Overall Construction Impact · Construction Wages Generated $70 Million $15 Million OTHER · Increase in Annual Household Spending $ 2 Million I I I I I I I I I I I I I I I I I I I LAND ASSEMBLY ASSISTANCE AND REIMBURSEMENT AGREEMENT CITY OF CLEARWATER BEACH REVITALIZATIONIREDEVELOPMENT AREA between THE CITY OF CLEARWATER, FLORIDA, and MANDALAY BEACH CLUB, LTD. Dated as of , 1999 I I I I ARTICLE 1. Section 1. 01 I Section 1.02 Section 1.03 I ARTICLE 2. Section 2.01 I Section 2.02 Section 2.03 I ARTICLE 3. Section 3.01 I Section 3.02 Section 3.03 I Section 3.04 ARTICLE 4. I Section 4.01 I ARTICLE 5. Section 5.01 I Section 5.02 Section 5.03 Section 5.04 I ARTICLE 6. I Section 6.01 Section 6.02 Section 6.03 I Section 6.04 Section 6.05 I Section 6.06 Section 6.07 Section 6.08 I Section 6.09 I TABLE OF CONTENTS DEFINITIONS. ............................................................................... .......2 Definitions................................................................................................ 2 Use ofW ords and Phrases....... ............... .................................................. 4 Florida Statutes........................................................................................ 4 PURPOSE AND PROPOSED PROJECT ............................................ 4 Purpose of Agreement ................................ ....................................... ....... 4 Proposed Project........................................................... ...........................4 Cooperation of the Parties.................... ................ .......... ..........................5 REGULATORY PROCESS .. ........ .................................... ....................5 Land Development Regulations................................................................ 5 Development Approvals and Permits........................................................ 6 Concurrency................................. ............................................................ 6 Not a Development Order or Permit .........................................................7 PLANS AND SPECIFICATIONS .........................................................7 Preparation of Plans and Specifications. ............. ................. ........ ..............7 PROJECT DEVELOPMENT.............. .................................................. 7 Ownership of Project Site.......................................... ............ ................... 7 Project Site............................................................................................... 7 Land Assembly/Redevelopment Assistance .............................................. 8 City's Obligations................................................................................... 10 PROJECT FINANCING............................... ...................... ..... ....... ..... 11 Notice of Project Financing to City ... ...................................................... 11 Copy of Default Notice to City ........................ ....................................... 11 Assignment of Rights Under Agreement To Project Lender ....................11 Notice to Project Lender........................................................................ 12 Consent of Project Lender .................................. ............ ....................... 12 Estoppel Certificates .............................................................................. 12 Cooperation............ ................................................... ............................ 12 Reinstatement by Project Lender........................................... ................. 12 New Agreement..................................................................................... 13 I I I I I I I I I I I I I I I I I I I Section 6.10 Transfer ofN ew Agreement................................................................... 13 Section 6. 11 Survival............................. ........................ . ....... ............ ........ ................ 13 ARTICLE 7. CONSTRUCTION OF THE PROJECT............................................. 14 Section 7.01 Project Site............................................................................................. 14 Section 7.02 Construction of First Phase of the Project............................... ................ 14 ARTICLE 8. INDEMNIFICATION...................................................................................... 16 Section 8.01 Indemnification by the Developer............................................................ 16 Section 8.02 Indemnification by the City.............................. ....................................... 17 Section 8.03 Limitation of Indemnification.. ................................................................ 18 ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER....... ................................................................................ 18 Section 9.01 Representations and Warranties ........ .................. .................................... 18 Section 9.02 Covenants...... ......................................................................................... 20 ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY ..................................................................................................... 20 Section 10.01 Representations and Warranties. ...... .................. .................... .................20 Section 10.02 Covenants............................................................................................... 21 ARTICLE 11. CONDITIONS PRECEDENT............................................................. 22 Section 11.01 Developer Acquiring Project Site.............. ..............................................22 Section 11.02 Responsibilities of the Parties for Conditions Precedent .......................... 23 ARTICLE 12. DEFAULT; TERMINATION.................... ........ ............. ..................... 23 Section 12.01 Project Default by Developer ........................................ ......... ......... ........23 Section 12.02 Default by the City.................................................................................. 25 Section 12.03 Obligations, Rights and Remedies Cumulative......................................... 26 Section 12.04 Non-Action on Failure to Observe Provisions of this Agreement............. 26 Section 12.05 Termination.... ........... ............................................................................. 26 Section 12.06 Termination Certificate....................... .......... ..........................................28 ARTICLE 13. RIGHT TO CONTEST................ ............................. ...........................28 Section 13.01 Right to Contest.................................. .................... ...............................28 Section 13.02 Conditions.... ......................................... .................................................28 I I I I I I I I I I I I I I I I I I I ARTICLE 14. ARBITRATION ................................................................................... 29 Section 14.01 Agreement to Arbitrate........................................................................... 29 Section 14.02 Appointment Arbitrators.......................................... ...............................29 Section 14.03 General Procedures.... .............................................................. ...............30 Section 14.04 Majority Rule ........ ...................................... ....... ................... .................31 Section 14.05 Replacement of Arbitrator........ .............................................................. 31 Section 14.06 Decision of Arbitrators..................................... ................ ......................31 Section 14.07 Expense of Arbitration.... .... ..... ....... ........ .......................... ...................... 32 Section 14.08 Accelerated Arbitration.. . .... . . ... . ...... . ...... . .............. ............................... ... 32 Section 14.09 Applicable Law................ ................. ... ................................................... 32 Section 14.10 Arbitration Proceedings and Records...................................................... 33 ARTICLE 15. UNAVOIDABLE DELAy.................. ........... .............. ....... .......... .......33 Section 15.01 Unavoidable Delay........................................ ..........................................33 ARTICLE 16. FIRE OR OTHER CASUALTY; CONDEMNATION....................... 34 Section 16.01 Loss or Damage to Project..................................................................... 34 Section 16.02 Partial Loss or Damage to Project........................................................... 34 Section 16.03 Project Insurance Proceeds. ................................... .................................34 Section 16.04 Notice of Loss or Damage to Project........... ............ ...............................35 Section 16.05 Condemnation of Project or Project Site; Application of Proceeds .......... 35 ARTICLE 17. MISCELLANEOUS............................................................................. 35 Section 17.0 1 Assignments.. . . . . . .. .. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 5 Section 17.02 Successors and Assigns......... ... ........................ ........ ...............................36 Section 17.0 3 Notices.. .. .. . . .. .. . . . . .. .. .. . . . .. .. . . . . .. .. .. . . . . . .. .. . . . .. .. . . . .. . . . . . . .. .. .. . . . .. . . .. . .. .. . .. .. . . . . . ... 36 Section 17.04 Applicable Law and Construction.. ........... ................................. .............37 Section 17.05 Venue; Submission to Jurisdiction........................................................... 37 Section 17.06 Estoppel Certificates..... .......................... .................... ........... .......... .......37 Section 17.07 Complete Agreement; Amendments........................................................ 38 Section 17.08 Captions. .. . . .. .. . . . . . .. . .. . . . . .. .. . . .. .. . . . . . . . . . . . .. . . . .. .. . . .. .. .. . . . . . . .. .. .. . .. .. .. . . .. . . .. .. .. . . . .. 38 Section 17.09 Holidays................................................................................................. 38 Section 17.10 Exhibits.................................................................................................. 38 Section 17.11 No Brokers.................. ........................................................................... 38 Section 17.12 Not an Agent of City ........................ ......................................................39 Section 17.13 Public Purpose....... ....... .................... ........................................ ..............39 Section 17.14 No General Obligation.... .................... ....................................................39 Section 17 .15 Technical Amendments; Survey Corrections........................................... 39 Section 17.16 Term; Expiration; Certificate ..................................................................39 Section 17.17 Effective Date......................................................................................... 40 Section 17. 18 Approvals Not Unreasonably Withheld............. . ............ . ... ............... .......... I I I I I I I I I I I I I I I I I I I This Land Assembly Assistance and Reimbursement Agreement (the "Agreement") is made as of this _ day of , 1999, by and between TIIE CI1Y OF CLEARWATER, FLORIDA, a public body corporate and political subdivision of the State of Florida (the "City") , and Mandalay Beach Club, Ud., a Florida limited partnership (''Developer''). WITNESSETH: WHEREAS, the City of Clearwater has embarked on a community revitalization effort known as One City, One Future; WHEREAS, one of the major elements of One City, One Future is implementation of the Strategic Redevelopment Plan for Clearwater Beach; WHEREAS, the Strategic Redevelopment Plan for Clearwater Beach identifies certain lands for assembly and priority redevelopment; WHEREAS, the City has enacted a Land Assembly Assistance Ordinance, Ordinance No.64l 0-99 "Which provides for the use of the City's power of eminent domain to complete assembly of land when necessary to carry out community redevelopment; WHEREAS, one of the areas identified for assembly and priority redevelopment as a unit in the Strategic Redevelopment Plan for Clearwater Beach is the area bounded by North Mandalay on the East, Papaya on the South, San Marco on the North and the Gulf of Mexico on the West ("Candidate Revitalization/Redevelopment Area"); WHEREAS, Developer has entered into contracts to acquire a significant portion of the land located within the Candidate Revitalization/Redevelopment Area); WHEREAS, Developer proposes to develop the land located within the Candidate Revitalization/Redevelopment Area in accordance with the goals and objectives of the Strategic Redevelopment Plan for Clearwater Beach; WHEREAS, it is necessary that the City take certain actions in order to make it possible for Developer to develop the land located within the Candidate Revitalization/Redevelopment Area in accordance with the goals and objectives of the Strategic Redevelopment Plan for Clearwater Beach. "Which actions include the construction of certain public improvements including street and sidewalk improvements and beautification; WHEREAS, at a duly called public meeting on . the City Commission approved this Agreement, and authorized and directed its execution by the appropriate officials of the City; and Page 1 JMaoty ofOearwater Agreement I I I I I I I I I I I I I I I I I I I WHEREAS, the Board of Directors of Developer has approved this Agreement and has authorized certain individuals to execute this Agreement on its behalf NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby agree as follows: ARTICLE 1. DEFINITIONS. 1.01. Definitions. The terms defined in this Article 1 shall have the follo"\\'mg meanings except as herein otherwise expressly provided: 1. "Agreement" means this Agreement for Development and Acquisition of Property including any Exhibits and any amendments thereto. 2. ''Candidate Revitalization/Redevelopment Area" means the area bounded by North Mandalay on the East, Papaya on the South, San Marco on the North and the Gulf of Mexico on the West. 3. "City of Clearwater Revitalization/Redevelopment Area" means the land located within the corporate limits of the City having buildings which are dilapidated, obsolete and blighted as defined in Part ill of Chapter 163 of the Florida Statutes and which was designated as a Candidate Revitalization/Redevelopment Area by the City Commk4iion pmsuant to Ordinance No. 6410-99 by Resolution Number 99-38 approved on August 19, 1999. 4. "City" means the City of Clearwater, Florida, a Florida municipal corporation. 5. ''City Commission" means the governing body of the City. 6. "Commencement Date" means the date on which Developer commences or causes a Contractor to commence construction of the First Phase of the Project (see Section 7.02(a)). 7. ''Commercial Parcels" means those parcels for which Developer requests land assembly/ redevelopment assistance (see Section 5.03), which are more particularly descnoed in the legal description set out in Exhtoit "A" to this Agreement. 8. ''Construction Completion" means the date a Construction Completion Certificate is issued (see Section 7.02(f)). 9. ''Controlled Property" means those properties within the Project Site which are subject to a purchase contract in favor of Developer or an affiliate or nominee on the effective date of this Agreement (see Section 5.01) which are more particularly descnoed in the legal description set out in Exht1>it "B" to this Agreement. Page 2 moOty ofCJearwater Aueement I I I I I I I I I I I I I I I I I I I 10. "Developer" means, for the purpose of this Agreement, Mandalay Beach Club, Ltd., a Florida limited partnership. 11. "Effective Date" means the date of approval and execution of this Agreement as provided in Section 17.17. 12. "ExhIbits" means those agreements, diagrams, drawings, specifications, instruments, forms of instruments, and other documents attached hereto and designated as exhIbits to, and incorporated in and made a part ot: this Agreement. 13. ''First Phase" of development means a portion of the Project including not less than sixty-five (65) residential dwelling units which may be undertaken, but shall not be required to be completed before other portions of the Project are commenced. 14. "Permits" means all land development approvals and consents required to be granted, awarded, issued, or given by any governmental authority in order for construction of the Project, or any part thereot: to commence, continue or be completed. 15. "Plan" means, the Clearwater Beach Strategies for Revitalization. 16. "Plans and Specifications" means, as to each part of the Project to be developed and the site plan for the Project to be developed, filed with the City as required by the Land Development Regulations for the purpose of review and approval. 17. "Project" means, collectively, the concept of development proposed by Developer as descnbed in a Petition for Land AssemblyfRedeyelopment Assistance dated September _, 1999. 18. "Project Financing" means collectively the financing to be obtained by Developer for acquisition, development and construction of the Project. 19. "Project Lender" means any lender prmiding all or part of the Project Financing. 20. "Project Site" means the land area generally bounded by North Mandalay, Papaya, San Marcos and the Gulf of Mexico which is more particularly described and depicted on ExhIbit ''0'' (see Section 5.02). 21. ''Termination Date" means the date a termination certificate is issued pursuant to Section 12.06. 22. ''Unavoidable Delay" means a delay as descnbed in Article 15 hereof 23. ''Vacation of Rights of Way" means the abandonment of City owned streets within the Project Site by the City in favor of the Developer, in order that the goals and objectives of the Plan may be better accomplished. Page 3 JMaoty orOearwater Agreement I I I I I I I I I I I I I I I I I I I 1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, the singular shall include the plural as well as the singular number, and the word "person" shall include corporations and associations, including public bodies, as well as natural persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "herein- after" and other equivalent words refer to this Agreement and not solely to the particular portion thereof in which any such word is used. 1.03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (1999), as amended from time to time. ARTICLE 2. PURPOSE AND PROPOSED PROJECT. 2.01. Purpose of Agreement. The purpose of this Agreement is to further the implementation of the Plan by providing for the development of the Project Site and the construction of certain public improvements, all to enhance the quality of life, increase employment and improve the aesthetic and useful enjoyment of Clearwater Beach and the City through the eradication of conditions of deterioration, dilapidation, obsolescence and blight, all in accordance with and in furtherance of the Plan and as authorized by and in accordance with the provisions of Florida law. 2.02. Proposed Proj ect. a. Project Description. Developer proposes to redevelop the Project Site with residential development which may also include retail and restaurant uses with related pedestrian walkways, streets, parking and infrastructure improvements. The Project shall be comprised of not more than two hundred (200) residential dwelling units and not less than one hundred and forty (140) residential dwelling units in two (2) residential buildings with a height not to exceed one hundred and fifty (150) feet. The Project may also include redevelopment of commercial uses on the Commercial Parcels as hereafter provided. As provided for in this Agreement, Developer agrees to carry out the redevelopment of the Project Site by purchasing all of the parcels within the Project Site, which are to be developed by Developer, entering into agreements with adjoining owners where advisable, preparing project plans and specifications, obtaining approvals by governmental authorities necessary for development of the Project, constructing various private improvements on the Project Site and operating the Project as a unified and integrated project. b. Project Benefits and Public Interest. The proposed Project for the Project Site, specifically including the acquisition of the Project Site by the Developer and the design, construction, completion and operation of the Project, and each part thereof, is hereby found by the parties hereto: (1) to be consistent with and in furtherance of Page 4 JMC\City of Ciearwater Agreement I I I I I I I I I I I I I I I I I I I the objectives of the Plan, (2) to conform to the provisions of Florida law, (3) to be in the best interests of the citizens of the City, (4) to further the purposes and objectives of the City, and (5) to further the public interest and purpose of eradicating conditions of deterioration, dilapidation, obsolescence and blight on Clearwater Beach. 2.03. Cooperation of the Parties. The City and Developer recognize that the successful development of the Project and each component thereof is dependent upon continued coopera- tion of the City and Developer, and each agrees that it shall act in a reasonable manner hereunder, provide the other party with complete and updated information from time to time, with respect to the conditions such party is responsible for satisfying hereunder and make its good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this Agreement are carried out to the full extent contemplated hereby and the Project is designed, constructed, completed and operated as provided herein. ARTICLE 3. REGULATORY PROCESS. 3.01. Land Development Regulations. a. Land Use Designation. The Project Site is designated Tourist District in the City's Land Development Regulations. b. Amendments to Land Development Regulations. The City covenants and agrees to cooperate with Developer to the extent permitted by law in regard to any text or map amendment to the City's Land Development Regulations which may be necessary in order for Developer to carry out the Project as described in Section 2.02(a). c. Special Settlement Stipulation Rights. The City recognizes that portions of the Project Site are subject to a Final Judgment By Consent entered by the Circuit Court of Pinellas County in City of Clearwater v. Gray, Case No. 85-4145-15 and Thacker et al. v. City of Clearwater, Case No. 86-17457-16. The City agrees to honor the rights and interests created by the Consent Decree without prejudice to Developer's right to take advantage of the less restrictive provisions which are contained in the City's Land Development Regulations. d. Zoning Letter. The zoning letter which is attached to this Agreement as Exhibit "C" represents the City's official interpretation of the City's Land Development Regulations as they apply to the Project Site as of the effective date of this Agreement. Page 5 JMc\Qty of Clearwater Agreement I I I I I I I I I I I I I I I I I I I 3.02 Dn-elopment Approvals and Permits. a. Applications for Development Approval Developer shall prepare and submit to the appropriate governmental authorities, including the City, applications for all nw-ssary Permits for the Project, and shall bear all costs of preparing such applications, applying for and obtaining such permits and shall pay applicable impact fees. b. City Cooperation and Assistance. The City shall cooperate v.ith Developer in obtaining all necessary Permits required for the construction, completion and sale of the residential dwelling units comprising the Project. If requested by Developer and authorized by law, the City will join in any application for any Permit, or, ahematively, recommend to and urge any govemmental authority to mnch application for any Permits has been made that such Building Permit or Permits be issued or approved. c. City Authority Preserved. The City's duties, obligations, or respollSllrilities under any section of this Agreement, specifically including, but not limited to, this Section 3 _ 02, shall not affect the Cit)Js right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laws, ordinances, codes or other building regulations. Notwithstanding any other provision of this Agreement, any required p\:lullU.ing, licensing or other regulatory approvals by the City shall be subject to the established procedures and requirements of the City with respect to review and p\:lJ.IJ.itLing of a project of a similar or comparable nature, size and scope. In no event shall the City, due to any provision of this Agreement, be obligated to take any action concerning regulatory approvals except through its es- tablished processes and in accordance v.ith applicable prmisions of law. d. Tnwact Fees. The Cit), shall compute the 'water and sewer impact fees using the same methodology as used at the Sunshine Mall redevelopment. 3.03. Concurrency. a. Concurrency Required. The parties hereto recognize and acknowledge that Horida law (specifically, Part IT, Chapter 163, Horida Statutes, and Rule 9J-5, Horida Administrative Code, conectively the "Growth Management Act-) imposes restric- tions on development if adequate public improvements are not available concurrently with that development to absorb and handle the demand on public services caused by development_ The City has created and implemented a system for monitoring the effects of development on public services within the City. Developer recognizes and acknowledges it must satisfy the concurrency requirements of Horida law as applied Page 6 JMC\Oty .rClearwater Ap~t I I I I I I I I I I I I I I I I I I I to this Project. Developer covenants and agrees to comply with the concurrency requirements of the City's regulations. b. Reservation of Capacity. The City hereby agrees and acknowledges that as of the effective date of this Agreement, the Project satisfies the concurrency requirements of Florida law. The City agrees to reserve the required capacity to serve the Project for Developer and to maintain such capacity for a period of three (3) years from the effective date of this Agreement and that such period shall be automatically extended for an additional three (3) years if Developer commences construction of the First Phase of the Project within the initial three (3) year period. The City recognizes and acknowledges that Developer will rely upon such reservation in proceeding with the Project. 3.04. Not a Development Order or Permit. The City and Developer hereby acknowledge, agree and represent that this Agreement is not intended to be and should not be construed or deemed to be a "development order" or "development permit" within the meaning of those terms in Section 163.3164, Florida Statutes. ARTICLE 4. PLANS AND SPECIFICATIONS. 4.01. Preparation of Plans and Specifications. a. Responsibility for Preparation of Plans and Specifications. Developer shall be solely responsible for and shall pay the cost of preparing, submitting and obtaining approval of the Plans and Specifications. b. Use ofOualified Professionals. Developer shall retain qualified professionals to prepare the Plans and Specifications and shall cause such professionals to prepare the Plans and Specifications. ARTICLE 5. PROJECT DEVELOPMENT. 5.01. Ownership of Project Site. Developer is or will be the contract purchaser of the Controlled Property within the Project Site which is more particularly described in Exhibit "D" to this Agreement. 5.02. Project Site. The Project Site consists of those properties located in an area which is bounded on the East of North Mandalay, on the North by San Marco, on the South by Papaya and on the West by the Gulf of Mexico as more particularly depicted on Exhibit ''D.'' Page 7 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I I 5.03. Land AssemblylRedevelopment Assistance. a. Commercial Parcels. The City has granted Developer's petition for land assembly assistance for three (3) parcels of land which are more particularly described in Exhibit "A" to this Agreement. The City's assistance is provided for in two (2) stages: 1) an initial effort involving Developer and City participation in public/private redevelopment agreements with the owners of the Commercial Parcels providing for the redevelopment/revitalization of the Commercial Parcels in a manner and form which is consistent with the City's redevelopment/revitalization objectives; and 2) in the event that voluntary agreements with the owners of the Commercial Parcels are not possible and the existing improvements and uses continue to have a negative, blighting effect on the planned and redevelopment/revitalization of the Candidate Redevelopment/Revitalization Area, the City may be requested to assemble such parcels using eminent domain powers and convey such parcels to Developer. b. Reimbursement Terms and Conditions. 1. Stage 1 Assistance. Subject to the provisions of this Section, Developer agrees that in the event that the City participates in land assembly assistance in regard to the Commercial Parcels which does not involve the acquisition of title to the Commercial Parcels , Developer and/or respective property owners shall participate in any such City land assembly assistance action by contributing an amount to be hereafter agreed to by Developer and City. In addition, Developer, as additional consideration, shall execute a recapture agreement for the amount expended by City which provides for twelve (12) annual payments of additional consideration, the first and second payments to be made on the first and second anniversary of this Agreement which occur after January 1, 2003, and the third through twelfth payment on each anniversary thereafter. The first and second payment, shall be in an amount equal to five percent (5%) and the third through twelfth in an amount equal to nine percent (<)0,10) of the amount expended by the City of Clearwater, including attorneys' fees and costs, less the amount of real estate taxes paid in each year by the Project to the City of Clearwater in excess of the ad valorem taxes paid by the owners of the Project Site in the last year immediately preceding the Effective Date of this Agreement, including real estate taxes paid to the City of Clearwater by purchasers of real estate products developed on the Project Site. (Annual Additional Consideration Payment = 5% (<)0,10) of Excess Land Acquisition Costs less Annual Ad Valorem Taxes paid to City by Project in excess of ad valorem taxes paid to City in year before the Effective Date of this Agreement). Page 8 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I 2. Stage 2 Assistance. Subject to the provisions of this Section, Developer agrees that in the event that the City participates in land assembly assistance in regard to the Commercial Parcels which involves the acquisition of title to the Commercial Parcels, Developer agrees to pay the City, in consideration for the conveyance of the Commercial Parcels and upon presentment of good and marketable title, an amount to be hereafter agreed to by Developer and City. In the event that the actual cost of acquisition incurred by the City of Clearwater, including attorneys' fees and costs exceeds the upset amount agreed to as Developer's contribution, Developer, as additional consideration, shall execute the recapture agreement which provides for twelve (12) annual payments of additional consideration, the first and second payments to be made on the first and second anniversary of this Agreement which occur after January 1, 2003, and the third through twelfth payment on each anniversary thereafter. The first and second payments shall be in an amount equal to five percent (5%) and the third through twelfth payments on each anniversary thereafter. The first and second payments and the third through twelfth payments in an amount equal to nine percent (9%) of the difference between the cash consideration paid by Developer pursuant to this paragraph and the actual cost of acquisition incurred by the City of Clearwater, including attorneys' fees and costs, less the amount of real estate taxes paid in each year by the Project to the City of Clearwater in excess of the ad valorem taxes paid by the owners of the Project Site in the last year immediately preceding the Effective Date of this Agreement, including real estate taxes paid to the City of Clearwater by purchasers of real estate products developed on the Project Site. (Annual Additional Consideration Payment = 5 % (9%) of Excess Land Acquisition Costs less Annual Ad Valorem Taxes paid to City by Project in excess of ad valorem taxes paid to City in year before the Effective Date of this Agreement). 3. Condition Precedent. The City and Developer agree that the Developer's reimbursement obligation pursuant to this section is subject to prior written approval of the Developer to any agreement by which the City participates in land assembly assistance in regard to the Commercial Parcels which does not involve the acquisition of title to the Commercial Parcels. The City and Developer agree that the Developer's obligation pursuant to this section in regard to the acquisition of title to the Commercial Parcels, shall be subject to the Developer having submitted a written request to the City that the City undertake to provide land assembly assistance through the acquisition of title to a specific Commercial Parcel and the approval of such request by resolution of the City Commission. Page 9 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I 5.04. City's Obligations. To induce Developer to acquire the Controlled Property and to undertake the Project and in recognition ofthe economic and other benefits to the City which will result there from, the City agrees as follows: a. Vacation of Right of Way. Within sixty (60) days of the Effective Date of this Agreement, the City Commission shall consider a resolution vacating the right of way of North Gulfview between Papaya and San Marco which vacation shall become effective immediately upon Developer taking title to the Project Site. b. Vacation of Plat. The City shall vacate that part of the plat of Clearwater Beach Park as recorded in Plat Book 10, Page 42 of the Public Records of Pinellas County, Florida (the ''Existing Plat") which includes the Project Site and replat said property as required for the development of the Project. c. Road and Sidewalk Improvements. The City shall construct road and sidewalk improvements (the "Road and Sidewalk Improvements") within the public rights-of- way existing along North Mandalay, Papaya and San Marco with the following minimum characteristics: 1. Sidewalks on the west side of North Mandalay shall be at least ten (10) feet wide, measured from the western edge of the sidewalk to the eastern face of the curb. Sidewalks on North Mandalay, Papaya and San Marco shall be constructed substantially in accordance with the description attached as Exhibit ''E.'' 2. Street landscaping shall be installed along North Mandalay that is consistent with the landscaping at the roundabout located at the western terminus of Memorial Causeway on Clearwater Beach. 3. The construction ofa landscaped median in North Mandalay. 4. The relocation of overhead utilities underground along North Mandalay, Papaya and San Marco. 5. The repaving of Papaya and San Marco and the construction of cul-de-sacs at the western terminus of Papaya and San Marco as described in Exhibit ''E.'' 6. The City shall complete construction of the road and sidewalk improvements within the public rights-of-way as provided for in this paragraph by the following dates: Papaya and San Marco on or before January 1, 2002. North Mandalay on or before January 1,2004. Page 10 JMaCity of Clearwater Agreement I I I I I I I I I I I I I I I I I I I d. Modification of Settlement Agreement. The City agrees to join with Developer in any modification of that certain Final Judgment By Consent entered by the Circuit Court ofPinellas County in City ofClealWaterv. Gray, Case No. 85-4145-15 and Thacker et al. v. City of ClealWater, Case No. 86-17457-16 as is necessary to carry out the development of the Project. e. Transfer of Development Rights. The City shall transfer to Developer transferable development rights sufficient to permit the Developer to construct a total of 157 residential dwelling units on the Controlled Property of the Project Site. In exchange for such rights, Developer agrees to cause to be transferred to City development rights for an equivalent number of residential dwelling units from unused development rights held by Developer's affiliate, Meridian on Sand Key, Ltd. f Sales Office. The City acknowledges Developer's plan to construct a sales office on a portion of the Project Site prior to closing on the purchase of the Controlled Properties. City agrees to expedite the review of any permit application submitted by Developer as to the sales office and to take such actions as may be reasonably required to permit Developer to install and operate such sales office. ARTICLE 6. PROJECT FINANCING. 6.01. Notice of Project Financing to City. As soon as Developer shall have obtained the Project Financing, Developer shall provide the City with a sworn statement identifYing the Project Lender(s) and documenting the type offinancing that the Project Lender(s) has issued for the Project. 6.02. Copy of Default Notice to City. Developer covenants and agrees that any Project Financing documents shall include provisions which provide that in the event any Project Financing shall become due and payable by maturity or acceleration, the Project Lender shall give written notice thereof to the City by certified mail, return receipt requested. Such notice from the Project Lender to the City shall state the basis of the default by Developer and shall include copies of any pleadings in any proceeding instituted by the Project Lender(s) incident thereto. 6.03. Assignment of Rights Under Agreement To Project Lender. Developer may assign to the Project Lender all its right, title and interest under this Agreement as security for any indebtedness of Developer. The execution of any assignment, security agreement, or other instrument, or the foreclosure of the instruction or any sale under the instrument, either by judicial proceedings or by virtue of any power reserved in the mortgage or deed of trust, or conveyance in lieu of foreclosure by Developer to the holder of such indebtedness, or the existence of any right, power, or privilege reserved in any instrument, shall not be held as a violation of any of the terms or conditions of this Agreement, or as an assumption by the holder of such indebtedness personally of the obligations of this Agreement. No such assignment, Page 11 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I foreclosure, conveyance or exercise of right shall relieve Developer from its liability under this Agreement. 6.04. Notice to Project Lender. If Developer shall encumber its interests under this Agreement, and if Developer or the holder of the indebtedness secured by the assignment shall give notice to City of the existence of the assignment and the address of the holder, then City will mail or deliver to the Project Lender, a duplicate copy of all notices in writing which City may, from time to time, give to or serve on Developer under and pursuant to the terms and provisions of this Agreement. Copies shall be mailed or delivered to the holder at, or as near as possible to, the same time the notices are given to or served on Developer. The Project Lender may, at its option, at any time before the rights of Developer shall be terminated as provided in this Agreement, do any act or thing that may be necessary and proper to be done in the observance of the covenants and conditions of this Agreement or to prevent the termination of this Agreement. All payments so made and all things so done and performed by the Project Lender shall be as effective to prevent a forfeiture of the rights of Developer under this Agreement as they would have been if done and performed by Developer. 6.05. Consent of Project Lender. This Agreement cannot be amended, canceled, or surrendered by the Developer without the consent of the Project Lender. 6.06. Estoppel Certificates. The City agrees at any time and from time to time upon not less than ten (10) days prior written request by the Developer to execute, acknowledge, and deliver to any Project Lender a statement in writing certifying that this Agreement is unmodified and in full force and effect (or if there have been modifications), being intended that any such statement delivered pursuant to this Article 6 may be relied upon by the Project Lender. 6.07. Cooperation. The City and the Developer shall cooperate by incorporating into this Agreement, by suitable amendment, from time to time, any provision which may reasonably be requested by any proposed Project Lender for the purpose of implementing the mortgagee protection provisions contained in this Agreement and allowing the Project Lender reasonable means to protect or preserve the liens of such Project Lender upon the occurrence of a default under the terms of this Agreement. The City and the Developer each agree to execute and deliver any agreement reasonably necessary to effect any such amendment; provided, however, that any such amendment shall not in any material respect, adversely affect any rights of the City under this Agreement. 6.08. Reinstatement by Project Lender. If this Agreement is terminated by reason of the happening of any event of default, and after any notice and cure period provided, City shall give prompt notice of this right to reinstate to the Project Lender, which right to reinstate shall be for a period of ninety (90) days. However, the Project Lender shall not have any personal liability for performance of the Developer's obligations under this Agreement unless and until the Project Lender acquires title to the Project Site and expressly assumes such liability. Page 12 JMC\Clty of Clearwater Agreement I I I I I I I I I I I I I I I I I I I 6.09. New Agreement. City shall, on written request of a Project Lender which has acquired title to the Project Site by foreclosure or deed in lieu offoreclosure, enter into a new Agreement with such Project Lender, or its designee, within twenty (20) days after receipt of such request, which new agreement shall be effective as of the date of such termination of this Agreement for the remainder of the term of this Agreement and upon the same terms, covenants, conditions and agreements as are contained in this Agreement, provided that the Project Lender or its designee shall: a. pay to City at the time of the execution and delivery of said new agreement any and all sums which would have been due under this Agreement from the date of termination of this Agreement (had this Agreement not been terminated) to and including the date of the execution and delivery of said new agreement, together with all expenses, including but not limited to, attorneys' fees (for trials and appeals) in a reasonable amount incurred by City in connection with the termination of this Agreement and with the execution and delivery of the new agreement, and b. on or prior to the execution and delivery of said new agreement agree in writing that promptly following the delivery of such new agreement, such Project Lender or its designee will perform or cause to be performed all of the other covenants and agreements in this Agreement on Developer's part to be performed to the extent that Developer shall have failed to perform the same to the date of delivery of such new agreement. 6.10. Transfer of New Agreement. The Project Lender shall have the right to assign or transfer the new agreement to any person or entity without the City's consent so long as the new agreement is in good standing and Project Lender is current in obligations owed to the City. Notwithstanding the foregoing, any Project Lender that is assigning the new agreement and the estate created thereby shall provide to the City notice of assignment and shall cause to be executed and delivered in a form reasonably acceptable to the City an assumption agreement from the assignee pursuant to which said assignee assumes the duties, obligations, covenants, conditions and restrictions of the new agreement. Upon such assignment and assumption by the assignee, the assignor shall be released of all liability under the new agreement and, upon request of the assignor, the City shall execute and deliver to the assignor a release agreement in a form reasonably acceptable to the assignor evidencing such release of the assignor from any liability under the new agreement. 6.11. Survival. The provisions of this Article 6 shall survive the termination of this Agreement and shall continue in full force and effect thereafter to the same extent as if Article 6 were a separate and independent contract made by the City, the Developer and the Project Lender. Page 13 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I ARTICLE 7. CONSTRUCTION OF THE PROJECT. 7.01. Project Site. a. Site Work. The Developer shall be responsible for all site investigation, environmental testing, demolition and site clearing. 7.02. Construction of First Phase of the Project. a. Commencement. Developer shall construct the First Phase of the Project substantially in accordance with the Plans and Specifications therefore. Developer shall commence construction of the First Phase of the Project ("Commencement Date") within three (3) years after the Effective Date of this Agreement and shall thereafter diligently pursue completion of the First Phase of the Project. 1. 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 and with the active of completion of that part of the Project. 2. All obligations of Developer (including deadlines in the Commencement Date) with respect to commencement and continuation of construction shall be subject to delays and extensions from time to time for Unavoidable Delay (see Article 15). 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. b. Pursuit of Construction. After the Commencement Date, Developer shall continue, pursue and prosecute the construction of the First Phase of the Project with due diligence to completion, and shall not at any time actually or effectively have abandoned (or its Contractor having actually or effectively abandoned) the Project Site. For purposes of this subsection (b), "abandoned" means to have ceased any construction work which effectively advances the construction of the Project toward completion, including removing all or substantially all of the construction work force from the Project site for a period of not less than sixty (60) days. c. Maintenance of Construction Site. During the construction of the Project, Developer shall, at its own expense, keep the Project and all lands owned by Developer within the Project Site in reasonably good order and condition. d. Construction Completion Certificate. Page 14 JMC\City of Oearwater Agreement I I I I I I I I I I I I I I I I I I I 1. For purposes of this Section 7.02, "completion, "complete," "substantially complete" or "substantial completion" means, with respect to construction of the First Phase of the Project, the later of a certificate of occupancy for the shell of any structures) (not including any tenant improvements) for that part of the Project issued by the City or other appropriate governmental authority having jurisdiction over the Project Site or that portion of the Project has been deemed completed by the Project Lender under the Construction Financing therefor. 2. Upon the substantial completion of the construction of the First Phase of the Project in accordance with the provisions of the Plans and Specifications, Developer shall prepare and execute the Construction Completion Certificate, which shall then be delivered to the City. Upon receipt of the certificate, the City shall promptly and diligently proceed to determine if construction of the Project has been completed substantially in accordance with the Plans and Specifications and this Agreement. Upon making such a determination, the City shall execute the certificate and return it to Developer. The date of the Construction Completion Certificate shall be the date when all parties shall have executed said certificate. 3. The Construction Completion Certificate shall constitute a conclusive determination by the parties hereto of the satisfaction and termination of the obligations of Developer hereunder to construct the First Phase of the Project described in the certificate; provided, however, that nothing in this Section shall be a waiver of the rights, duties, obligations or responsibilities of the City or any other governmental entity acting in its regulatory or governmental capacity or an approval of said construction for purposes of the issuance ofa certificate of occupancy for that part of the Project. 4. If the City shall refuse or fail to execute the Construction Completion Certificate after receipt of a request by Developer to do so, then the City shall, within ten (10) days after its receipt of such request, provide Developer with a written statement setting forth in reasonable detail the reason( s) why the City has not executed the Construction Completion Certificate and what must be done by Developer to satisfY such objections so that the City would sign the certificate. Upon Developer satisfYing the City's objections, then Developer shall submit a new request to the City for execution of the Construction Completion Certificate and that request shall be considered and acted upon in accordance with the procedures in this Section for the original request. 5. If the City refuses to execute the certificate and Developer does not agree with the objections set forth in the City's statement, then Developer may invoke the arbitration procedures set forth in Article 14 hereofforthe putpose Page 15 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I of determining if the prereqmsltes for execution by all parties of the Construction Completion Certificate have been met, and if not, what actions must be taken to satisfY such prerequisites. 6. The Construction Completion Certificate shall be in a form sufficient to be recorded in the public records ofPinellas County, Florida. After execution by the City, it shall be promptly returned to Developer who shall record the certificate in the public records ofPinellas County, Florida, and pay the cost of such recording. e. City not in Privity. The City shall not be deemed to be in privity of contract with any contractor or provider of services with respect to the construction of any part of the Project not constituting all or any part of public improvements. ARTICLE 8. INDEMNIFICATION. 8.01. Indemnification by the Developer. a. The Developer agrees to indemnify, defend and hold harmless, the City, its respective agents, officers, or employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of: or by reason of any act or omission of the Developer, its agents, employees or contractors arising out of: in connection with or by reason of: the performance of any and all work or services covered by this Agreement, or which are alleged to have arisen out of: in connection with or by reason of: the performance of any and all work or services covered by this Agreement, or which are alleged to have arisen out of: in connection with, or by reason of: the performance of such work or semces. b. The Developer shall indemnify, defend and hold harmless the City, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the Developer, as the case may be, of any representations or warranties contained in Section 9.01, or covenants contained in Section 9.02. c. The Developer's indemnity obligations under subsections (a) and (b) shall SUIVive the earlier of the Termination Date or the Expiration Date, but shall apply only to occurrences, acts, or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. Page 16 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I d. The Developer's indemnity hereunder is in addition to and not limited by any insurance policy and is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, nor as a waiver of sovereign immunity for any party entitled to assert the defense of sovereign immunity. 8.02. Indemnification by the City. a. To the extent permitted by law, the City agrees to indemni.fY, defend and hold harmless, the Developer, its respective, officers, and employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of: or by reason of: any act or omission of the City, its respective agents or employees arising out of: in connection with or by reason of: the performance of any and all work or services covered by this Agreement, or which are alleged to have arisen out of: in connection with or by reason of: the performance of any and all work or services covered by this Agreement, or which are alleged to have arisen out of: in connection with, or by reason of: the performance of such work or sefV1ces. b. The City shall indemni.fY, defend and hold harmless the Developer, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the City, as the case may be, of any representations or warranties contained in Section 10.01, or covenants contained in Section 10.02. c. The City's indemnity obligations under this Section 10.02 shall survive the earlier of the Termination Date or the Expiration Date, but shall only apply to occurrences, acts or omissions that arise on or before the earlier of the Termination Date or the Expiration Date. The City's indemnity hereunder is not and shall not be interpreted as an insuring agreement between or among the parties to this Agreement, but is in addition to and not limited by any insurance policy provided that said obligation shall not be greater than that permitted and shall be limited by the provisions of Section 768.28, Florida Statutes, or any successor statute thereto. Page 17 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I 8.03. Limitation of Indemnification. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations of the Developer (as set forth in Section 8.01) and the City (as set forth in Section 8.02), the following shall apply: a. the indemnifying party shall not be responsible for damages that could have been, but were not, mitigated by the indemnified party; b. the indemnifying party shall not be responsible for that portion of any damages caused by the negligent or willful acts or omissions ofthe indemnified party; and c. there shall be no obligation to indemnify hereunder in the event that the indemnified party (1) shall have effected a settlement of any claim without the prior written consent of the indemnifying party, or (2) shall not have subrogated the indemnifying party to the indemnified party's rights against any third party by an assignment to the indemnifying party of any cause or action against such third party. ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER. 9.01. Representations and Warranties. The Developer represents and warrants to the City that each of the following statements is currently true and accurate and agrees the City may rely upon each of the following statements: a. The Developer is a Florida limited partnership duly organized and validly existing under the laws of the State of Florida, has all requisite power and authority to carry on its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party, is qualified to do business in the State of Florida, and has consented to service of process upon a designated agent for service of process in the State of Florida. b. This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which Developer is or will be a party have been duly authorized by all necessary action on the part ot: and have been or will be duly executed and delivered by, the Developer, and neither the execution and delivery thereot: nor compliance with the terms and provisions thereof or hereof (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, (ill) contravenes or results in any breach ot: default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Developer under Page 18 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I any indenture, mortgage, deed oftrust, bank loan or credit agreement, the Developer's Partnership Agreement or, any other agreement or instrument to which the Developer is a party or by which the Developer may be bound. c. This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Developer enforceable against the Developer in accordance with the terms thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. d. There are no pending or, to the knowledge of the Developer, threatened actions or proceedings before any court or administrative agency against the Developer, or against any controlling shareholder, officer, employee or agent of the Developer, which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Developer. e. The Developer has filed or caused to be filed all federal, state, local and foreign tax returns, if any, which were required to be filed by the Developer, and has paid, or caused to be paid, all taxes shown to be due and payable on such returns or on any assessments levied against the Developer. f All financial information and other documentation, including that pertaining to the Project or the Developer, delivered by the Developer to the City was, to the best of Developer's knowledge and belief, on the date of delivery thereof, true and correct. g. The principal place of business and principal executive offices of the Developer is in St. Petersburg, Florida, and the Developer will keep records concerning the Project (such as construction contracts, financing documents and corporate documents) and all contracts, licenses and similar rights relating thereto at an office in Pinellas County. h. As of the Effective Date, the Developer will have the financial capability to carry out its obligations and responsibilities in connection with the development of the Project as contemplated by this Agreement. 1. The Developer has the experience, expertise, and capability to develop, cause the construction, and complete the Project and, oversee and manage the design, planning, construction, completion and opening for business of the Project, and to acquire the Project Site. Page 19 JMC\Oty of Clearwater Agreement I I I I I I I I I I I I I I I I I I I 9.02. Covenants. The Developer covenants with the City that until the earlier of the Termination Date or the Expiration Date: a. The Developer shall timely perform or cause to be performed all of the obligations contained herein which are the responsibility of the Developer to perform. b. During each year that this Agreement and the obligations of the Developer under this Agreement shall be in effect, the Developer shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals and shall cause to occur those events contemplated by this Agreement that are applicable to, and that are the responsibility ot: the Developer. c. The Developer shall assist and cooperate with the City to accomplish the development of the Project by the Developer in accordance with the Plan and Specifications, and this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts or agreements that are or will be applicable thereto. d. The Developer shall promptly cause to be filed when due all federal, state, local and foreign tax returns required to be filed by it, and shall promptly pay when due any tax required thereby. e. Subject to Section 17.01, the Developer shall maintain its existence and will not consolidate with or merge into another corporation, limited partnership, or other entity or permit one or more other corporations or other entity to consolidate with or merge into it without the prior approval of the City unless the surviving entity from such consolidation or merger remains controlled directly or indirectly by JMC Development, Inc. or its shareholders. f The Developer shall take no action which shall have the effect, singularly or in the aggregate, of rendering Developer unable to continue to observe and perform the covenants, agreements, and conditions hereof and the performance of all other obligations required by this Agreement. g. Provided all conditions precedent thereto have been satisfied or waived as provided herein, the Developer shall design, construct and complete the First Phase of the Project such that it is substantially complete as provided in this Agreement no later than the Project Completion Date. ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY. 10.01. Representations and Warranties. The City represents and warrants to the Developer that each of the following statements is currently true and accurate and agrees that the Developer may rely on each of the following statements: Page 20 JMC\City of Ciearwater Agreement I I I I I I I I I I I I I I I I I I I a. The City is a validly existing body corporate and politic of the State of Florida, has all requisite corporate power and authority to carry on its business as now conducted and to perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party. b. This Agreement and, to the extent such documents presently exist in form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party have been dilly authorized by all necessary action on the part of: and have been or will be dilly executed and delivered by, the City, and neither the execution and delivery thereof: nor compliance with the terms and provisions thereof or hereof (i) requires the approval and consent of any other party, except such as have been dilly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rille, regu1ation or order applicable to or binding on the City, (iii) contravenes or resu1ts in any breach of: or defaillt under or, other than as contemplated by this Agreement, resu1ts in the creation of any lien or encumbrance upon any property of the City under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the City is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the City outstanding on the Effective Date. c. This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of the City enforceable against the City in accordance with the terms thereof: except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. d. There are no pending or threatened actions or proceedings before any court or administrative agency against the City, or against any officer of the City, which question the validity of any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the City. 10.02. Covenants. The City covenants with the Developer that until the earlier of the Termination Date or the Expiration Date: a. The City shall timely perform, or cause to be performed all of the obligations contained herein which are the responsibility of the City to perform. Page 21 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I b. During each year that this Agreement and the obligations of the City under this Agreement shall be in effect, the City shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals, and shall cause to occur those events contemplated by this Agreement that are applicable to and are the responsibility of the City. c. The City shall assist and cooperate with the Developer to accomplish the development of the Project in accordance with this Agreement and the Plans and Specifications, will carry out its duties and responsibilities contemplated by this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts, or agreements that are or will be applicable thereto, and, to the extent permitted by law, the City will not enact or adopt or urge or encourage the adoption of any ordinances, resolutions, rules, regulations or orders or approve or enter into any contracts or agreements, including issuing any bonds, notes, or other forms of indebtedness, that will result in any provision of this Agreement to be in violation thereof or which will prevent or adversely affect the development of the Project. d. The City shall not request or approve any rezoning of the Project Site, or any part thereof: which will prevent or adversely affect the development of the Project. e. The City shall maintain its financial capability to carry out its responsibilities as contemplated by this Agreement and shall notify the Developer of any event, condition, occurrence, or change in its financial condition which adversely affects, or with the passage of time is likely to adversely affect, the Citis financial capability to carry out its responsibilities contemplated hereby. ARTICLE 11. CONDITIONS PRECEDENT. 11.01. Developer Acquiring Controlled Property. The obligations of the Developer under the Agreement are subject to the fulfillment to the satisfaction of: or waiver in writing by, the Developer of each of the following conditions precedent: a. The Developer shall have received evidence satisfactory to the Developer that the Project Site permits the uses contemplated in this Agreement. b. The Plans and Specifications as are required for issuance of the Building Permit required to commence construction of the First Phase of the Project shall have been approved by the City in accordance with applicable ordinances, land use regulations, building codes and other regulations of the City. c. The Developer shall have obtained a commitment for construction financing from the Project Lender as provided in Article 6 hereof Page 22 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I d. The City shall have closed and vacated any streets, alleys or other public rights-of- way and existing plats as may be necessary for the construction and use of the Project Site according to the Plan and Specifications, this Agreement and approved by resolution the vacation of all such rights-of-way and existing plat in favor of the Developer, provided however that the vacation will not be effective unless and until the Developer has acquired the Controlled Property. e. The Building Permit and all other Governmental Approvals necessary for construction of the Project to commence shall have been issued. 11.02. Responsibilities of the Parties for Conditions Precedent. The parties hereto shall not, individually or collectively, knowingly, intentionally or negligently prevent any condition precedent from occurring; provided, however, nothing in this Section is intended or shall be deemed to deny any party the right to reasonably exercise its discretion to the extent permitted by law or this Agreement. ARTICLE 12. DEFAULT; TERMINATION. 12.01. Project Default by Developer. a. There shall be an "event of default" by the Developer pertaining to the entire Project upon the occurrence of anyone or more of the following after the Closing Date: I. The Developer shall fail to perform or comply with any material provision of this Agreement applicable to it within the time prescribed therefore, after receipt of a notice from the City pursuant to Paragraph 12. 02(b )( I), provided, however, that suspension of or delay in performance by the Developer during any period in which the City is in default of this Agreement as provided in Section 12.02 hereofwill not constitute an event of default by the Developer under this Subsection 12.0Ia., or 2. The Developer shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar reliefunder any present or future statute, law or regulation or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or Page 23 JMC\City of Oearwater Agreement I I I I I I I I I I I I I I I I I I I b. 3. Within sixty (60) days after the commencement of any proceeding by or against the Developer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed or otherwise terminated, or IT: within sixty (60) days after the appointment without the consent or acquiescence of the Developer of any trustee, receiver or liquidator of any of such entities or of any material part of any of such entity's properties, such appointment shall not have been vacated; or 1. If an event of default by the Developer described in subsection (a) above shall occur, the City shall provide written notice thereofto the Developer, and, if such event of default shall not be cured by the Developer within thirty (30) days after receipt of the written notice from the City specifying in reasonable detail the event of default by the Developer, or if such event of default is of such nature that it cannot be completely cured within such time period, then if the Developer shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period oftime as may be necessary (provided, however, if the Developer is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of the City being required, but such approval will be required if the curative period is to be extended beyond six (6) months (after the notice of default has been given by the City to the Developer and such extended curative period may be ended by the City electing to do so upon any Project Lender finding the Developer to be in default of any Project Financing and the curative period therefor has expired without such event of default being cured) then, in addition to any remedy available under Section 12.05, the City may terminate this Agreement or pursue any and all legal or equitable remedies to which the City is entitled, provided, however, if the Developer shall fail to cure such event of default within said thirty (30) day or longer period or ceases to proceed diligently to timely cure such event of default, then the City may proceed to enforce other available remedies without providing any additional notice to the Developer. 2. Any attempt by the City to pursue any of the above referenced remedies will not be deemed an exclusive election of remedy or waiver of the City's right to pursue any other remedy to which either may be entitled. 3. Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. Page 24 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I c. Notwithstanding any provision of this Section, a default by the Developer shall not affect the title of any condominium unit or common area conveyed by the Developer to an unrelated third party or to a condominium association. The obligations of Developer are personal to Developer and shall not run with the title to the Project or any part thereof or give rise to a lien or encumbrance on same. 12.02. Default by the City. a. Provided the Developer is not then in default under Section 12.01, there shall be an "event of default" by the City under this Agreement in the event the City shall fail to perform or comply with any material provision of this Agreement applicable to it; provided, however, that suspension of or delay in performance by the City during any period in which the Developer is in default of this Agreement as provided in Section 12.01 hereofwillnot constitute an event of default by the City under this Subsection 12.02(a). b. 1. If an event of default by the City described in Subsection 12. 02( a) shall occur, the Developer shall provide written notice thereof to the City, and, after expiration of the curative period described in paragraph (2) below, may terminate this Agreement, institute an action to compel specific performance of the terms hereof by the City or pursue any and all legal or equitable remedies to which the Developer is entitled. 2. The Developer may not terminate this Agreement or institute an action described in paragraph (1) above if the City cures such event of default within thirty (30) days after receipt by the City of written notice from the Developer specifying in reasonable detail the event of default by the City, or if any such event of default is of such nature that it cannot be completely cured within such period, then within such reasonably longer period of time as may be necessary to cure such default, provided however, if the City is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of the Developer being required, but such approval will be required if the curative period is to be extended beyond six (6) months after the notice of default has been given by the Developer to the City if the City has commenced to cure such default within such thirty (30) day period and is diligently prosecuting such curative action to completion. The City shall within said thirty (30) day period or such longer period promptly, diligently and in good faith proceed to cure such event of default after receipt of the notice from the Developer and shall succeed in curing such event of default within said period of time, provided, however, if the City shall fail to cure such event of default within said thirty (30) day or longer period or ceases to proceed diligently to timely Page 25 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I cure such event of default, then the Developer may proceed with its available remedies without providing any additional notice to the City. 3. Any attempt by the Developer to pursue any of the remedies referred to in paragraphs (1) and (2) above will not be deemed an exclusive election of remedy or waiver of the Developer's right to pursue any other remedy to which it might be entitled. 4. Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. 12.03. Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to the contrary, the specified rights and remedies to which either the City or the Developer are entitled under this Agreement are not exclusive and are intended to be in addition to any other remedies or means of redress to which the City or the Developer may lawfully be entitled and are not specifically prohibited by this Agreement. The suspension of: or delay in, the performance of its obligations by the Developer, while the City shall at such time be in default of their obligations hereunder shall not be deemed to be an "event of default." The suspension of: or delay in, the performance of the obligations by the City while the Developer shall at such time be in default ofits obligations hereunder shall not be deemed to be an "event of default" by the City. 12.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of the City or the Developer to promptly or continually insist upon strict performance of any term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other agreement, instrument or document of whatever form or nature contemplated hereby shall not be deemed a waiver of any right or remedy that the City or the Developer may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or provision. 12.05. Termination. a. The Developer and the City acknowledge and agree that as of the Effective Date certain matters mutually agreed by the parties hereto to be essential to the successful development of the Project have not been satisfied or are subject to certain conditions legal requirements or approvals beyond the control of any of the parties hereto or which cannot be definitely resolved under this Agreement, including, but not limited to, failure of a governmental authority to grant an approval required for development Page 26 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I b. d. of the Project or insurable title to the Project Site has not been obtained. In recognition of these events or conditions, the parties hereto mutually agree that, provided the appropriate or responsible party therefor diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or condition to occur or be satisfied, the failure of the events or conditions listed in subsection (b) below to occur or be satisfied shall not constitute an event of default by any party under this Article 14, but may, upon the election of any party hereto, be the basis for a termination of this Agreement in accordance with this Section. In addition to any other rights of termination provided elsewhere in this Agreement, this Agreement may be terminated as provided in subsection (c) by the City or the Developer after the occurrence of any of the following events or conditions (except for paragraph (3) in which event only the Developer may terminate this Agreement pursuant to this subsection (b)): 1. the appropriate governmental authority (including the City in exercise of its governmental and regulatory authority and responsibility), upon petition by the Developer, denies or fails to: issue the necessary order or other action necessary, issue the Permits, issue the Building Permits, or approve any other land use necessary to construct the Project on the Project Site, provided the Developer has proceeded diligently, expeditiously and in good faith to obtain such approval, permits or other necessary actions; 2. a previously unknown site condition is subsequently discovered and that condition prevents successful development of the Project, or part of the Project on the Project Site, or part of the Project Site (in which case only the Developer at his option can terminate the project as not feasible); or 3. The Developer is unable to acquire marketable title to the Controlled Property on or before March 31, 2000. c. Upon the occurrence of an event described in subsection (b) or in the event that the Developer or the City, after diligently and in good faith to the fullest extent its capabilities, is unable to cause a condition precedent to its respective obligations to occur or be satisfied, then the Developer or the City may elect to terminate this Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence of such event or the determination of inability to cause a condition precedent to occur or be satisfied, stating its election to terminate this Agreement as a result thereot: in which case this Agreement shall then terminate. In the event of a termination pursuant to this Section 14.06, neither the Developer nor the City shall be obligated or liable one to the other in any way, financially or otherwise, for any claim or matter arising from or as a result of this Agreement or any Page 27 JMC\City of Ciearwater Agreement I I I I I I I I I I I I I I I I I I I actions taken by the Developer and the City, or any of them, hereunder or con- templated hereby, and each party shall be responsible for its own costs, however, the provisions of Sections 10.01 and 10.02 shall apply and shall survive termination of this Agreement, the provisions of this Subsection 14.07(d) to the contrary notwithstanding. 12.06. Termination Certificate. a. In the event of a termination of this Agreement for any reason prior to the Expiration Date, each of the parties hereto do covenant and agree with each other to promptly execute a certificate prepared by the party electing to terminate this Agreement, which certificate shall expressly state that this Agreement has been terminated in accordance with its terms, is no longer of any force and effect except for those provisions hereof which expressly survive termination, that the rights, duties and obligations of the parties hereto have been terminated and released (subject to those surviving provisions hereof) and that the Project Site is no longer subject to any restrictions, limitations or encumbrances imposed by this Agreement. b. The certificate described in Subsection (a) shall be prepared in a form suitable for recording and promptly after execution by all of the parties hereto shall be recorded in the public records ofPinellas County, Florida. ARTICLE 13. RIGHT TO CONTEST. 13.01. Right to Contest. Subject to the conditions set forth in Section 13.02 below, the City or the Developer each may, at its sole discretion and expense, after prior written notice to the other parties hereto, contest by appropriate action or proceeding conducted in good faith and with due diligence, the amount or validity or application, in whole or in part, of any lien, any payment of any taxes, assessments, impact fees or other public charges ofa similar nature that may from time to time be levied upon or assessed by any appropriate governmental authority against the Developer, the Project (or any part thereof), the Project Site, furniture, fixtures, equipment or other personal property thereon, and the revenues generated from the use or operation of any or all of the above, any other payment specifically identified in this Agreement, or compliance with any law, rule, regulation, or other such legal requirement. 13.02. Conditions. The right to contest any charge, payment or requirement pursuant to Section 15.01 is subject to the following: a. such proceeding shall suspend the execution or enforcement of such charge, payment or requirement; b. such proceeding will not create any risk of impairment of the acquisition or preparation of the Project Site, the construction, completion, operation or use of the Page 28 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I Project, the Project Site, or any part thereof: in any material respect, and neither the Project or Project Site, nor any part of the Project or the Project Site, would be subject to any risk ofbeing involuntarily sold, forfeited or lost or the acquisition of the Project Site or the construction, equipping, or completion of the Project or any part thereof be delayed or prohibited; c. such proceeding will not subject any other party to criminal liability or risk of material civil liability for failure to comply therewith, or involve risk of any material claim against such party; and d. the party seeking the benefit of this Article shall have furnished to the other parties such security, if any, as may be required in such proceeding or as may be reasonably requested by the others, to protect the Project and the Project Site, and any part thereof: and any interest of such parties hereunder. ARTICLE 14. ARBITRATION 14.01. Agreement to Arbitrate. Only as specifically provided in this Agreement and only if any judicial or administrative action or proceeding has not been commenced with regard to the same matter and, if so, the party hereto commencing such action has not dismissed it, any disagreement or dispute between the parties may be arbitrated in the manner set forth in this Article 14. All parties hereby agree such arbitration, once commenced, shall be the exclusive procedure for resolving such disagreement or dispute and agree to be bound by the result of any such arbitration proceeding unless all parties mutually agree to terminate such proceeding prior to decision. If any arbitration proceeding under this part adversely affects the performance of any party hereunder, then any time periods provided herein for such performance by that party shall be tolled during the pendency of the arbitration proceeding affecting such performance. 14.02. Appointment of Arbitrators. a. 1. Unless accelerated arbitration as provided in Section 14.08 hereofis invoked, any party invoking arbitration herewith shall, within five (5) days after giving notice of impasse in the dispute resolution process or upon following the expiration of the time period for such dispute resolution occurrence of the event permitting arbitration to be invoked, give written notice to that effect to the other parties, and shall in such notice appoint a disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association or a disinterested person not on such list to whom an objection is not made by any other party hereto within five (5) days of receipt of the notice of such appointment as the arbitrator or, ifmore than one (1) arbitrator is to be appointed, as one of the arbitrators. Page 29 JMC\Clty of Clearwater Agreement I I I I I I I I I I I I I I I I I I I 2. Within ten (10) days after receipt of the notice described in paragraph (1), the other parties shall by written notice to the original party acknowledge that arbitration has been invoked as permitted by this Agreement, and shall either accept and approve the appointment of such individual set forth in the original notice as a sole arbitrator or shall appoint one (1) disinterested person per party of recognized competence in such field as an arbitrator. b. 1. If two (2) arbitrators are appointed pursuant to subsection (a) above, the arbitrators thus appointed shall appoint a third disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association, and such three (3) arbitrators shall as promptly as possible determine such matter. 2. If the second arbitrator shall not have been appointed as provided in subsection (a), the first arbitrator shall, after ten (10) days notice to the parties, proceed to determine such matter. 3. If the two (2) arbitrators appointed by the parties pursuant to subsection (a) shall be unable to agree within fifteen (15) days after the appointment of the second arbitrator upon the appointment of a third arbitrator, they shall give written notice of such failure to agree to the parties, and, if the parties then fail to agree upon the selection of such third arbitrator within fifteen (15) days thereafter, then within ten (10) days thereafter each of the parties upon written notice to the other parties hereto may request the appointment of a third arbitrator by the office in or for the State of Florida (or if more than one office, the office located closest to the City) of the American Arbitration Association (or any successor organization thereto), or, in its absence, refusal, failure or inability to act, request such appointment of such arbitrator by the United States District Court for the Middle District of Florida (which request shall be filed in the division of that court responsible for the geographic area including the City), or as otherwise provided in Chapter 682, Florida Statutes, known and referred to as the Florida Arbitration Act, as amended. 14.03. General Procedures. In any arbitration proceeding under this part, those parties appointing arbitrators shall each be fully entitled to present evidence and argument to the sole arbitrator or panel of arbitrators. The arbitrator or panel of arbitrators shall only interpret and apply the terms of this Agreement and may not change any such terms, or deprive any party to this Agreement of any right or remedy expressed or implied in this Agreement, or award any damages or other compensation to any party hereto. The arbitration proceedings shall follow the rules and procedures of the American Arbitration Association (or any successor organization thereto) unless specifically modified by this Agreement, or as then agreed to by the parties hereto. Page 30 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I 14.04. Majority Rule. In any arbitration proceeding under this part, the determination of the majority ofthe panel of arbitrators, or of the sole arbitrator if only one (1) arbitrator is used, shall be conclusive upon the parties and judgment upon the same may be entered in any court having jurisdiction thereof The arbitrator or panel of arbitrators shall give written notice to the parties stating his or their determination within thirty (30) days after the conclusion of the hearing or final submission of all evidence or argument. 14.05. Replacement of Arbitrator. In the event of the failure, refusal or inability of any arbitrator to serve as such, promptly upon such determination being made by the affected arbitrator, the affected arbitrator shall give notice to the other two (2) arbitrators (if applicable) and to the parties hereto, and then a new arbitrator shall be promptly appointed as a replacement, which appointment shall be made by the party or the arbitrators who appointed the affected arbitrator in the same manner as provided for in the original appointment of the affected arbitrator in Section 14.02 hereof 14.06. Decision of Arbitrators. a. If any decision reached by arbitration as provided in this part requires performance by the Developer, the Developer covenants and agrees to comply with any decision of the arbitrator( s) promptly after the date of receipt by the Developer of such decision, and to continue such performance to completion with due diligence and in good faith. b. If any such decision requires performance by the City, the City covenants and agrees to comply promptly with any decision reached by arbitrators) promptly after the date of receipt by the City of such decision, and to continue such performance to completion with due diligence and in good faith. c. Nothing in this part, nor in any arbitration decision rendered under this part, shall be construed to require any payment by the City to the Developer not otherwise provided for herein. Page 31 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I 14.07. Expense of Arbitration. The expenses of any arbitration proceeding pursuant to this part shall be borne equally by the parties to such proceeding, provided, however, for the purpose of this Section 14.06, "expenses" shall include the fees and expenses of the arbitrators and the American Arbitration Association with respect to such proceeding, but shall not include attorneys' fees or expert witness fees, or any costs incurred by attorneys or expert witnesses, unless (and to the extent) agreed to by the parties to such proceeding, which in the absence of such Agreement shall be the responsibility of the party incurring such fees or costs. 14.08. Accelerated Arbitration. a. 1. If any of the parties to any arbitration proceeding under this part determines the matter for arbitration should be decided on an expedited basis, then after an initial election to invoke arbitration pursuant to Section 14.02 hereofhas been made, either party to such proceeding may invoke accelerated arbitration by giving notice thereof to the other parties no later than three (3) days after arbitration has been initially invoked and the other parties do not object within three (3) days thereafter. 2. Accelerated arbitration, for purposes of this Section 14.08, shall be accomplished by either party notifying the American Arbitration Association ( or any successor organization thereto) that the parties have agreed to a single arbitrator, qualified to decide the matter for arbitration, to be appointed by the American Arbitration Association ( or any successor organization thereto) with the consent of the parties to such proceeding within three (3) days after receipt of the request and to decide such matter within five (5) days after such appointment. 3. If an arbitrator is not so appointed with consent of the parties to the proceeding within three (3) days after the notice referred to in paragraph (2) is received by the American Arbitration Association, the accelerated proceeding under this Section 14.08 shall terminate and the procedures otherwise set forth in this Article 14 shall apply, unless the parties mutually agree to an extension of such time period. b. The Developer and the City hereby agree to use such accelerated procedure only when reasonably necessary, to not contest the appointment of the arbitrator or his or her decision except as may be permitted by law, and that all other provisions of this part, except as are in conflict with this Section 14.08, remain in effect and applicable to an accelerated arbitration proceeding. 14.09. Applicable Law. To the extent not inconsistent with this article, any arbitration proceeding under this article shall be governed by the provisions of Chapter 682, Florida Statutes, as amended, known and referred to as the Florida Arbitration Code. Page 32 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I 14.10. Arbitration Proceedings and Records. Any arbitration hearing under this article shall be considered a meeting subject to Section 286.011, Florida Statutes, and shall be open to any member of the public. Unless otherwise rendered confidential pursuant to or by the operation of any applicable law or order (other than an order by a sole arbitrator or panel of arbitrators acting under this part), the record of such proceedings shall be a public record under Chapter 119, Florida Statutes. ARTICLE 15. UNAVOIDABLE DELAY. 15.01. Unavoidable Delay. a. Any delay in performance of or inability to perform any obligation under this Agreement (other than an obligation to pay money) due to any event or condition described in paragraph (b) as an event of "Unavoidable Delay" shall be excused in the manner provided in this Section 15.01. b. "Unavoidable Delay" means any of the following events or conditions or any combination thereof acts of God, acts of the public enemy, riot, insurrection, war, pestilence, archaeological excavations required by law, unavailability of materials after timely ordering of same, epidemics, quarantine restrictions, freight embargoes, fire, lightning, hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement weather (as indicated by the records of the local weather bureau for a five-year period preceding the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73 and 74, Florida Statutes, restoration in connection with any of the foregoing or any other cause beyond the reasonable control of the party performing the obligation in question, including, without limitation, such causes as may arise from the act of the other party to this Agreement, or acts of any governmental authority ( except that acts of the City shall not constitute an Unavoidable Delay with respect to performance by the City). c. An application by any party hereto (referred to in this paragraph (c) and in paragraph (d) as the "Applicant") for an extension oftime pursuant to this subsection must be in writing, must set forth in detail the reasons and causes of delay, and must be filed with the other party to this Agreement within seven (7) days following the occurrence of the event or condition causing the Unavoidable Delay or seven (7) days following the Applicant becoming aware (or with the exercise of reasonable diligence should have become aware) of such occurrence. d. The Applicant shall be entitled to an extension of time for an Unavoidable Delay only for the number of days of delay due solely to the occurrence of the event or condition causing such Unavoidable Delay and only to the extent that any such occurrence actually delays that party from proceeding with its rights, duties and obligations under this Agreement affected by such occurrence. Page 33 .JMC\City of Ciearwater Agreement I I I I I I I I I I I I I I I I I I I ARTICLE 16. FIRE OR OTHER CASUALTY; CONDEMNATION. 16.01. Loss or Damage to Project. a. Until the Completion Date, and without regard to the extent or availability of any insurance proceeds, the Developer covenants and agrees to diligently commence and complete the reconstruction or repair of any loss or damage caused by fire or other casualty or by eminent domain (provided the City is not the condemning authority) to each and every part of the Project which it owns to substantially the same size, floor area, cubic content and general appearance as existed prior to the occurrence of such loss or damage, promptly after the City approves the Plans and Specifications for such reconstruction or repairs; provided, however, that nothing contained herein shall obligate the Developer to rebuild any of the buildings or other improvements currently on the Project Site that are to be demolished in order to construct the Project. b. The City shall review the Plans and Specifications for such reconstruction or repairs as soon as possible after filing thereofby the Developer. The City agrees to approve the Plans and Specifications for such reconstruction or repairs if the reconstruction or repairs contemplated by such Plans and Specifications will restore the Project, or the damaged portion thereof: to substantially the same condition as existed prior to the occurrence of such loss or damage and if such Plans and Specifications conform to the applicable laws, ordinances, codes, and regulations in effect at the time offiling with the City of the plans and specifications for such reconstruction or repairs. 16.02. Partial Loss or Damage to Proj ect. Any loss or damage by fire or other casuahy or exercise of eminent domain to the Project or Project Site, or any portion thereof: which does not render the Project or Project Site unusable for the use contemplated by Section 18.01 of this Agreement, shall not operate to terminate this Agreement or to relieve or discharge the Developer from the timely performance and fulfillment of the Developer's obligations pursuant to this Agreement, subject to an extension of time for an Unavoidable Delay. 16.03. Project Insurance Proceeds. a. Whenever the Project, or any part thereof: shall have been damaged or destroyed, the Developer shall promptly make proof ofloss and shall proceed promptly to collect, or cause to be collected, all valid claims which may have arisen against insurers or others based upon such damage or destruction. b. Subject to the rights of a Project Lender, the Developer agrees that all proceeds of property or casualty insurance received by the Developer as a result of such loss or damage shall be available and shall be used for payment of the costs of the reconstruction or repair of the Project to the extent necessary to repair or reconstruct the Project. Page 34 JMC\City oCOearwater Agreement I I I I I I I I I I I I I I I I I I I 16.04. Notice of Loss or Damage to Proj ect. The Developer shall promptly give the City written notice of any significant damage or destruction to the Project stating the date on which such damage or destruction occurred, the expectations of the Developer as to the effect of such damage or destruction on the use of the Project, and the proposed schedule, if any, for repair or reconstruction of the Project. 16.05. Condemnation of Project or Project Site; Application of Proceeds. In the event that part, but not all, of the Project or Project Site, or both, shall be taken by the exercise ofthe power of eminent domain at any time before the Expiration Date, subject to the rights of a Project Lender, the compensation awarded to and received by the Developer shall be applied first to the restoration of the Project, provided the Project can be restored and be commercially feasible for its intended use as contemplated by Section 16.01 of this Agreement after the taking, and, if not, can be retained by the Developer. ARTICLE 17. MISCELLANEOUS 17.01. Assignments. a. By the Developer. 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 to a successor developer, only with the prior written consent of the City, provided that such successor developer (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. 2. If the assignee of Developer's right, title, interest and obligations in and to the Project, or any part thereof assumes all of 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. 3. An assignment of the Project, or any part thereof: by the Developer to any corporation, limited partnership, general partnership, joint venture or other entity, in which the Developer or an entity under common ownership or control with Developer shall not be deemed an assignment or transfer subject Page 35 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I to any restriction on or approvals of assignments or transfers imposed by this Section 17.01, provided, however, that notice of such assignment shall be given by the Developer to the City prior to such assignment being effective and the assignee shall be bOlIDd by the terms of this Agreement to the same extent as would the Developer in the absence of such assignment. 4. No assignee of all or any part of the Developer's rights and obligations with respect to part of the Project shall in any way be obligated or responsible for any of the Developer's obligations with respect to any other part by virtue of this Agreement lIDless and lIDtil such assignee has expressly assumed Developer's such other obligations. 17.02. 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 its successors and assigns, except as may otherwise be specifically provided herein. 17.03. Notices. a. All notices, demands, requests for approvals or other communications given by either party to another shall be in writing, and shall be sent by registered or certified mail, postage prepaid, return receipt requested or by courier service, or by hand delivery to the office for each party indicated below and addressed as follows: To the Developer: To the City: Mandalay Beach Club, Ltd. 2201 4th Street North [insert] Suite 200 St. Petersburg, FL 33704 with copies to: with copies to: Robert F. Greene, Esq. Greene, Donnelly & Schermer 1301 6th Avenue West Suite 400 Bradenton, FL 34205 [insert] b. Notices given by courier service or by hand delivery shall be effective upon delivery and notices given by mail shall be effective on the third (3rd) business day after mailing. Refusal by any person to accept delivery of any notice delivered to the office at the address indicated above (or as it may be changed) shall be deemed to have been Page 36 JMC\City of Oearwater Agreement I I I I I I I I I I I I I I I I I I I an effective delivery as provided in this Section 20.03. The addresses to which notices are to be sent may be changed from time to time by written notice delivered to the other parties and such notices shall be effective upon receipt. Until notice of change of address is received as to any particular party hereto, all other parties may rely upon the last address given. 17.04. Applicable Law and Construction. The laws of the State of Florida shall govern the validity, performance and enforcement of this Agreement. This Agreement has been negotiated by the City and the Developer, and the Agreement, including, without limitation, the Exhibits, shall not be deemed to have been prepared by the City or the Developer, but by all equally. 17.05. Venue; Submission to Jurisdiction. a. For purposes of any suit action, or other proceeding arising out of or relating to this Agreement, the parties hereto do acknowledge, consent, and agree that venue thereof is Pinellas County, Florida. b. Each party to this Agreement hereby submits to the jurisdiction of the State of Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States District Court for the Middle District of Florida, for the purposes of any suit, action, or other proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of a motion as a defense or otherwise that such action is brought in an inconvenient forum or that the venue of such action is improper or that the subject matter thereof may not be enforced in or by such courts. c. If at any time during the term of this Agreement the Developer is not a resident ofthe State of Florida or has no office, employee, City or general partner thereof available for service of process as a resident of the State of Florida, or if any permitted assignee thereof shall be a foreign corporation, partnership or other entity or shall have no officer, employee, agent, or general partner available for service of process in the State of Florida, the Developer hereby designates the Secretary of State, State of Florida, its agent for the service of process in any court action between it and the City, or both, arising out of or relating to this Agreement and such service shall be made as provided by the laws of the State of Florida for service upon a non-resident; provided, however, that at the time of service on the Florida Secretary of State, a copy of such service shall be delivered to the Developer at the address for notices as provided in 17.03. 17.06. Estoppel Certificates. The Developer and the City shall at any time and from time to time, upon not less than ten (10) days prior notice by another party hereto, execute, acknowledge and deliver to the other parties a statement in recordable form certifying that this Agreement has not been modified and is in full force and effect (or if there have been modifications that Page 37 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I the said Agreement as modified is in full force and effect and setting forth a notation of such modifications), and that to the knowledge of such party, neither it nor any other party is then in default hereof (or if another party is then in default hereof: stating the nature and details of such default), it being intended that any such statement delivered pursuant to this Section 17.07 may be relied upon by any prospective purchaser, mortgagee, successor, assignee of any mortgage or assignee of the respective interest in the Project, if any, of any party made in accordance with the provisions of this Agreement. 17.07. Complete Agreement; Amendments. a. This Agreement, and all the terms and provisions contained herein, including without limitation the Exhibits hereto, constitute the full and complete agreement between the parties hereto to the date hereof: and supersedes and controls over any and all prior agreements, understandings, representations, correspondence and statements, whether written or oral. b. Any provision of this Agreement shall be read and applied in para materia with all other provisions hereof c. This Agreement cannot be changed or revised except by written amendment signed by all parties hereto. 17.08. Captions. The article and section headings and captions of this Agreement and the table of contents preceding this Agreement are for convenience and reference only and in no way define, limit, describe the scope or intent of this Agreement or any part thereof: or in anyway affect this Agreement or construe any article, section, subsection, paragraph or provision hereof 17.09. Holidays. It is hereby agreed and declared that whenever a notice or performance under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal holiday observed in the City, it shall be postponed to the next following business day. 17.10. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not physically attached hereto shall be treated as if they are part of this Agreement. 17.11. No Brokers. The City and the Developer hereby represent, agree and acknowledge that no real estate broker or other person is entitled to claim or to be paid a commission as a result of the execution and delivery of this Agreement, including any of the Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any or all of the Project Site. Page 38 JMC\City of Clearwater Agreement II I I I I I I I I I I I I I I I I I I 17.12. Not an Agent of City. During the term of this Agreement, the Developer hereunder shallnot be an agent of the City with respect to any and all services to be performed by the Developer (and any of its agents, assigns, or successors) with respect to the Project. 17.13. Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills and is pursuant to and for a public purpose and municipal purpose and is in the public interest, and is a proper exercise of the City's power and authority. 17.14. No General Obligation. In no event shall any obligation of the City under this Agreement be or constitute a general obligation or indebtedness of the City or the City, a pledge of the ad valorem taxing power of the City or the City or a general obligation or indebtedness of the City or the City within the meaning of the Constitution of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds. Neither the Developer nor any other party under or beneficiary of this Agreement shall ever have the right to compel the exercise of the ad valorem taxing power of the City, the City or any other governmental entity or taxation in any form on any real or personal property to pay the City's or the City's obligations or undertakings hereunder. 17.15. Technical Amendments; Survey Corrections. In the event that due to minor inaccuracies contained herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to changes resulting from technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances which do not change the substance of this Agreement may be made and incorporated herein. The City Manager is authorized to approve such technical amendments on behalf of the City, respectively, and is authorized to execute any required instruments, to make and incorporate such amendment to this Agreement or any Exhibit attached hereto or any other agreement contemplated hereby. 17.16. Term; Expiration; Certificate. a. If not earlier terminated as provided in Section 12.06, this Agreement shall expire and no longer be of any force and effect on the tenth anniversary of the Effective Date (''Expiration Date"). b. Upon completion of the term of this Agreement, all parties hereto shall execute the Agreement Expiration Certificate. The Agreement Expiration Certificate shall constitute (and it shall be so provided in the certificate) a conclusive determination of satisfactory completion of all obligations hereunder and the expiration of this Agreement. c. In the event of any dispute as to whether any party is required to execute the Agreement Expiration Certificate, the dispute shall be resolved by arbitration as provided in Article 14. Page 39 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I d. The Agreement Expiration Certificate shall be in such form as will enable it to be recorded in the public records ofPinellas County, Florida. Following execution by all of the parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer in the public records ofPinellas County, Florida and the Developer shall pay the cost of such recording. 17.17. Effective Date. Upon execution of this Agreement (and such of the Exhibits as are contemplated to be executed simultaneously with this Agreement) by the authorized officers ofthe City and by authorized representatives of the Developer following approvalhereofby the City and the Board of Directors of the Developer, this Agreement (and any executed Exhibits) shall then be in full force and effect in accordance with its terms and the date of such execution shall be the Effective Date. 17.18. Approvals Not Unreasonably Withheld. The parties hereto represent that it is their respective intent as of the Effective Date and do covenant and agree in the future that all approvals, consents, and reviews will be undertaken and completed as expeditiously as possible, in good faith, and will not be arbitrarily or unreasonably withheld, unless otherwise expressly authorized by the terms of this Agreement. Page 40 JMC\City of Clearwater Agreement I I I I I I I I I I I I I I I I I I I IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of this _ day of , 1999. THE CITY OF CLEARWATER, FLORIDA Attest: By: By: City Clerk Mayor Approved as to form and correctness: , Esquire City Attorney STATE OF FLORIDA ) ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me this _ day of , 19 _ by and , Mayor and City Clerk, respectively, for the City of Clearwater, Florida, on behalf of the City. By: Signature of Notary Public My Commissions Expires: Printed, typed or stamp Page 41 JMC\Oty of Clearwater Agreement I I I I I I I I I I I I I I I I I I I MANDALA Y BEACH CLUB, LTD., a Florida limited partnership By: JMC Communities of Clearwater m, Inc., General Partner By: _President STATE OF FLORIDA ) ) COUNTY OF PlNELLAS ) The foregoing instrument was acknowledged before me this _ day of , 19 _ by as President JMC Communities of Clearwater ill, Inc., a Florida corporation, as General Partner of , a Florida limited partnership. By: Signature of Notary Public My Commissions Expires: Printed, typed or stamp JMC\Clearwater Property\agreement for development 2 Page 42 JMC\City of Oearwater Agreement I I I I I I I I I I I I I I I I I I I Exhibit "A" Legal Description Commercial Parcels Lots 72,73,74,75,76,77,78,79,80,81,82,83,84 and 85 of CLEARWATER BEACH PARK, according to the map or plat thereof: as recorded in Plat Book 10, Page 42, of the Public Records of Pinellas County, Florida. I I I I I I I I I I I I I I I I I I I EXHIBIT "B" Legal Description Controlled Property Units A, B, C and D, FOUR SEASONS LANDINGS, a Condominium, per map or plat thereof as recorded in Plat Book 10, Page 42 of the Public Records ofPinellas County, Florida, and Declaration of Condominium recorded in Official Record Book 6830, Page 196, Public Records ofPinellas County, Florida, the real property comprising such condominium being more particularly described as follows: Parcell: Lots 27 and 28, CLEARWATER BEACH PARK, according to the map or plat thereof: as recorded in Plat Book 10, Page 42 of the Public Records ofPinellas County, Florida. Parcel 2: All lands lying west of said Lots 27 and 28 to the mean high water line of the Gulf of Mexico and lying south of a westerly projection of the common boundary line between Lots 26 and 27 of said CLEARWATER BEACH PARK, and north of a line from the southwest comer of said Lot 28 projected west and parallel to said common boundary line between said Lots 26 and 27, together with and including all littoral rights appurtenant thereto. Parcel 3: Lot 26 and the south Yz of Lot 25, CLEARWATER BEACH PARK, according to the map or plat thereof: as recorded in Plat Book 10, Page 42 of the Public Records ofPinellas County, Florida. Parcel 4: All lands lying west of said Lot 26 and the south ~ of said Lot 25 to the mean high water line of the Gulf of Mexico and lying north of a westerly projection of the common boundary line between Lots 26 and 27 of said CLEARWATER BEACH PARK, and south ofa line from the northwest comer of the south ~ of said Lot 25 projected west and parallel to said common boundary line between said Lots 25 and 26, together with and including all littoral rights appurtenant thereto. TOGETHER WITH: Lots 39 and 40 and East 36 feet of South 8.5 feet of Lot 41, Clearwater Beach Park, as per plat thereofrecorded in Plat Book 10, Page 42 of the Public Records ofPinellas County, Florida. TOGETHER WITH: Lots 14, 15, 16, 17, 18, 19,20,21,22,23,24, North ~ of25, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38,41 and 42, less the East 36 feet of the South 8.5 feet of Lot 41, Clearwater Beach Park, as per plat thereofrecorded in Plat Book 10, Page 42 of the Public Records ofPinellas County, Florida. I I I I I I I I I I I I I I I I I I I ""'" " ~L I, .1Cl.,.~'" O1rlf( I, ,'1~ ~""""""~;-- ,~,,". ~-._~':. ~lil~.' ,I, . .':, ~. ..~..,,' .. ~. :2.t:----~g: .P~':, ~~, ':.~-'-. ... ,"~-,' -.;.rJf.........,~~,' III)1TE~....' '1'1" CITY OF CLEARWATER PL"-''iNING & DEVELOP~lE:-;T SER\lCES :\D~llNISTRATIO:.i POST OFFICE Box -i--i8. CLE'.R\\\fER. FLOR;r,\ 33758--i"'7--i8 :-'1c:\IClPAL SER\lCES BULDI:"G. 100 SOLTH :-'IYRTU :\\DLE. CLE'.R~'\TER. FLORIDA 3.37';6 TELEPHO:\E C2"") ':;62'156- F\x \ -2-) ':;62.-*5-:-6 October 4, 1999 Mr. John Hobach, President JMC Communities 2201 4th Street North, Suite 200 St. Petersburg, Florida 33704 Dear John, I have reviewed the conceptual site plan for your proposed project west of Mandalay on Clearwater Beach based on the current Community Development Code regarding the density, height, parking and setbacks that are being proposed. Density: From west to east the following development potential exists. Based on the units you control for Lots 14-28 as a result of the settlement agreement, there are one hundred-twelve units available. The right of way area from Gulfview would yield twelve units at thirty units per acre. And the property immediately east of Gulfview would yield twenty-four units at thirty units per acre. The total for the combined area would be one hundred forty-eight units. You have indicated an intent to transfer nine units to this property, which would yield a total unit count of one hundred-fifty seven units. Height: The proposed height of the project is one hundred-fifty feet. This height would be allowed subject to approval by the Community Development Board and is consistent with the allowed height in conjunction with the transfer of development rights. Parking: You have proposed two hundred-thirty-six parking spaces, which meets the spaces required by code. Setbacks: You have proposed a minimum of a ten feet rear setback, which is consistent with the code. O:"E Cm O:"E Ftn.RF.. BRl.\S J :\l\G'T. ~l\\OR-CO\!\\l~'IO\ER ED HOOPER. VICE ~l\YOR,CO\I\\l"I')\ER ED H.'.RT. CO\t\ll~W)\ER <i) BOB CL\RK. C('\I\II~'I()\FR J .B. .I..Hi\'O\. C('\I\\l~'I(l\ER "EQl\L E\tPI.Ol'.tE\;T .\\;0 :\FFiR.\l\Tl\'E .-\CTIO\; E,\PI.OYFR" I I I I I I I I I I I I I I I I I I I The project, as proposed, would require review and approval by the Community Development Board after a required public hearing. If you have any questions please contact me at 562-4583. Sincerely, /)c~ h ~ Ralph Stone, Planning Director Cc: Pam Akin, City Attorney John Asmar, Planning and Development Services Administrator Robert Keller, Assistant City Manager I I EXHIBIT "D" Project Site I I I I I I ,.: , I ~ I 1 I I I I I I , I I l__ SITE LoCATION ~~_J I I I I I I I I I I I I I I I I I I I I I EXHIBIT "E" Sidewalk and Street Improvements The street and sidewalk improvements for Mandalay Avenue, Papaya Street, and San Marco Street shall include, but not be limited to the following: . Surface Repaving. . Pedestrian cross-walks and sidewalks with specialty concrete or pavers. Specialty concrete could be a coquina/shell smface treatment; pavers could be colored concrete or brick. . The western end of Papaya Street and San Marco Street be converted into a cul- de-sac with a specialty pavement treatment at the cul-de-sac. JMC.~_CQmmll..niti~~~., BuildinB Communities We'd Call Hon1e 2201 4th Street North Suite 200 St. Petersburg, Florida 33704 (727) 823-0022 @3/99 JMC Communities Meridian on Sand Key A Fine Balance ."." When JMC sets out to create a new community, one of our first goals is to bring the needs of our beautiful environment in harmony with the demands of a growing community. We've honed that balancing act to a fine art. For, in addition to concerted attention to protecting and preserving the natural environment, JMC cultivates a sense of community - bringing together people with fascinating interests, civic concerns, an optimism for the future, and an appreciation for ingenious architecture and inspired interior design. These passions blend beautifully in Meridian on Sand Key - nature and people, plus an understanding of what lures us all to the sea, and the artful combination of comforts that keep us there. Residents of the 106 luxury condominiums in this 20-story single tower are sure to share that passion, inspired by the continuous panorama of the Gulf of Mexico. Meridian began construction in mid-1998. With an average home price of $530,000, total sales volume is expected to be about $56,000,000. Financing was provided by NationsBank. ~Ir~==-~~ f1 li , 0 1'~~C1 g (1IflpnCla JL. - L~Lp i l/ ti .. lr\ . @ Vtl! ;~~p r {r~ e' ['TIlle c ,; LI rf ',L", " ~)luli .' ~"'[ V. J Minutes from work, entertainment and leisure, with spectacular scenery all around, Florencia invites residents to rediscover and enjoy one of America's great water- front cities from a totally new perspective - downtown St. Petersburg. Mediterranean flourishes pay a respectful nod to the city's past, while the latest con- struction technologies help draw a bold vision for the future. With just 51 luxury condominiums, Florencia offers a full complement of exceptional amenities in an intimate setting. Florencia began con- struction in mid-1998, and is planned for completion in early 2000. In keeping with its urban location, Florencia's plan also includes approximately 30,000 square feet of office and retail space adjacent to the residential building. Residential sales are expected to average $640,000, for a total sales volume of $33,000,000. Bacopa Bay St. Petersburg, Florida At Bacopa Bay, an abundance of glass,balconies, terraces and verandahs help erase the boundaries between indoors and out, inviting a breathtaking view of Boca Ciega Bay into each home. Modeled after the character of a formal Bermuda estate, the first of five mid-rise condominium buildings ,WilS completed in Janu.ary 1996, withJheehtih~ coIIlIi1unity COJ11in,gto lite in 1998.finahced by NatlonsBank, thisdevelopIllent has>a total sales volllmeof $49,000,000. The Grande on Sand Key Clearwater, Florida Creating an unfettered, luxuriaht iifestyler~;mll1is" cent of Florida's past;. preservingande~ancil'lg the natural environment; uP11.9lding a c()mmitment to quality. Those are just a feW of the design gOills that helped shape The Grande. The two towers consist of 234 condominium homes, averaging $367,500. Lending partner Bamett Bank loaned over $60 million in land and construction finilnci);'l,g;, The Grande's selloutis $86,000,000. HarbourSide South Pasadena, Florida Offering dramatic water views from every home, this 1986 JMC development rapidly rose to distinc- tion as the fastest selling community of its kind on the Suncoast. Occupying 59 choice acres on Boca CiegaBay known as Star Island,this prominent 722-home condominium community was financed by Barnett Bank. With an average selling price of $119,000 per home, HarbourSide was completely sold out in just six short years at a value of $85,800,000. Dolphin Cay St. Petersburg, Florida From the meandering wetlands boardwalk to the inviting blue of the beachfront pool, Dolphin Cay's master plan draws neighbors out and together to enjoy a traditional community experience. This 88-acre, waterfront development of single- family homes and condominiums includes a 24-acre wildlife preserve and 10-acre lake and park. Graced by a contemporary Mediterranean architecture and tremendous open space, Dolphin Cay sales exceeded $72,000,000. Construction financing was provided by NationsBank. All The Services You Need Under One Roo~ Property Management. By providing experi- enced management and diligent maintenance of all association property, including such services as the collection of assessments and financial reporting, JMC Management, Inc. ensures that your community will retain its beauty, value and appeal well into the future. Interior Design Coordination. To help pull together all the details of your new home, a JMC Design Coordinator is available to offer assistance in color selections and options and act as liaison between purchasers and the construction department. Closing Services. AJMC Closing Representative is available to provide convenience and assis- tance to new JMC homeowners as they go through the closing process. Sales and Marketing. JMC's sales and market- ing teams are completely versed in all aspects of each community's conception and design. So they're able to bring communities to life for prospective buyers, even as the foundations are being laid. Skilled research and creative direction, promotions, public relations and advertising help generate overwhelming enthu- siasm and support for every JMC community. Warranty. To ensure that your new home lives up to both our high standards and yours, a JMC representative will help you meticulously inspect every aspect of your home prior to closing. Your satisfaction is also guaranteed by a comprehensive, one-year JMC warranty on original workmanship and materials. JMC Communities tMichael.Cheezem CEO [MCCommunities Lee Allen Vice President, Finance and Administration Gail Cooper Administrative Manager John Hobach President [Me Communities Steve McAuliffe Vice President Sales & Marketing Jim Baar Controller Pasadena Cove South Pasadena, Florida JMC Communities' first waterfront development drew waves of enthusiasm to this placid 21 acres bordering Boca Ciega Bay. Having broken ground in 1982 with financing from Barnett Bank, this exclusive 256-condominium community was rapidly sold out in just three years. At an average of $74,219 per home, the total sales value reached $19,000,000. Pinebrook Bradenton, Florida Nestled among the vast green of a challenging, 18-hole golf course, this 687 mid-rise and villa development pre- vailed as the most successful condominium community in Manatee County for several years. Financed by lending partner Barnett Bank and completely sold by 1995, the sales value of Pinebrook reached a grand total of $54,200,000, with an average selling price of $78,900. Buildlll~OnO[JrPast Success ;WlQ$~mrParkN art heast ~t!r~~S~~~;rg, Florida iJlffyQQp:u:nUnities brought newfreshness to the condo- miniu~~~style in this, its first condominiU111 community. i i TllefiIyfl~~h!:!.s~of WinstonPark Northeast, a low-rise i~O~trl1J11~o/()f216 homes, was completed in 1980. Homes !~Ol~9},tt!q\li~kly~tanaverage price of $48,900, for a total si1,l~siiv~l1.le of$12,OOO,OOO. Wood Park at Desoto Square Bradenton, Florida The quietude enveloped by the generous, sheltering greehof countless trees embodies the appeal of this popular lakeside condominium community in Bradenton. Designed and built around a private, wooded park, this 390-home community began in 1981. At an average selling price of $55,900 per home, it was completely sold in under five years, for a sales value of $21,800,000. Ken Eckelkamp President JMC Design & Development, Inc. David Anderson Project Manager Patty Leavell Vice President, Sales Florencia John Bussey Project Manager Steve Coppins Project Manager Ken Brown Sales Manager Meridian on Sand Key Takinn Pride In Every Detail In the grand scheme of home construction, many might mistake ourperf~t1y squared walls and level doors as trivial detail. At ]MC Communities, quality in every detail is a way of life. Designing and building each community as though we'd be living there ourselves, we offer homeowners enduring, uncompromising quality in every floor plan and every building design. As general contractor on all our jobs, we have a rare level of control over the quality of . workI)1anship. From the depths of abui.1ding's foundation right up to the last finishing nail and coat of paint, our commitment toconstruc- tion.excellence is unmistakable. Our mission is to give each JMC Communities homeowner both an exceptional community and a superior home that will provide a lifetime of security, comfort, beauty and friendships. Within these masterfully planned environments, people's fundamental needs -for sociability, recreation and interaction with Florida's ever-green outdoors and year-round sunshine- are fulfilled. There is a difference, too, in the way we bring these sociable communities to life. Every JMC community is built on a solid foundation of construction excellence, with real innovation, meticulous master planning, incomparable home values and exemplary amenity packages. Peace of mind is built in, as well, with a highly responsive customer service program. Nothing in our success story, however, is more compelling or gratifying than listening to how much our homeowners appreciate the quality of life ata JMC community. Their satisfaction tells us we've built more than just a good home. We've shaped a better way to live. ~e4- ~ J. Michael Cheezem CEO, JMC Communities }Me COMMUNmES I I I I I I I I I I I I I I I I I I I nE:YELOI'E)"{'SiQ'{J~LIFICATIONS Since 1972, JMC Communities has built over 3,000 quality condominium homes on the West Coast of Florida. Headquartered in Pinellas County, JMC is a full service development company. We believe that by controlling all aspects of the development process... from land planning... to construction... to sales... to management, we can achieve a level of consistent quality and service which might not otherwise be possible. The following proudly profiles our communities: .:. Winston Park Northeast, consisting of 216 condominium homes with a total sales value of $12,000,000 is located in St. Petersburg, and was completed in 1980. .:. Wood Park at DeSoto Square, located in Bradenton is a 390 home community that began in 1981 with a total sales value of $21,800,000. .:. Pasadena Cove, consisting of256 waterfront condominium homes broke ground in 1982 in South Pasadena, with a total sales value of $19,000,000. .:. Pinebrook is a 687 home community built around an 18-hole golf course in Bradenton with a total sales value of $54,200,000 completed in 1995. .:. HarbourSide began construction in 1986, consisting of 722 condominium homes in South Pasadena, with a total sales value of $85,800,000. .:. Dolphin Cay in St. Petersburg blends 315 condominium homes with 47 single- family home sites, and a total sales value of over $72,000,000. .:. Bacopa Bay located on Boca Ciega Bay in St. Petersburg consists of 188 condominium homes with a total sales value of $49,000,000. .:. The Grande on Sand Key located on the Gulf of Mexico in Clearwater consists of 234 homes in two towers, with a sellout of $86,000,000. .:. Meridian on Sand Key located on the Gulf of Mexico in Clearwater is currently under construction and will consist of 106 condominium homes with an expected sellout of about $56,000,000. .:. Florencia located in the heart of downtown St. Petersburg is currently under construction, and will consist of 50 homes and two retail units. The expected sales volume is $33,000,000. I I I I I I I I I I I I I I I I I I I STATE OF FLORIDA COUNTY OF PINELLAS SWORN STATEMENT The undersigned being duly sworn states as follows: 1. The undersigned affiant is the Chief Executive Officer of JMC Communities of Clearwater III, Inc., a Florida corporation, General Partner of Mandalay Beach Club, Ltd., a Florida limited partnership, ("Developer") and has personal knowledge of the following matters. 2. Capitalized terms in this Sworn Statement that are not defined shall have the meanings ascribed to such terms in the Petition for Land Assembly/Redevelopment Assistance submitted by Developer to the City of Clearwater of even date. 3. Developer, together with its affiliates, controls at least sixty percent (60%) of the Candidate Revitalization/Redevelopment Area in which the Commercial Parcels proposed to be acquired/redeveloped are located. 4. Developer estimates the fair market value of the proposed redevelopment when completed to be $70,000,000.00. 5. Developer or its affiliates have made bonafide offers to purchase all Commercial Parcels from the owners of record, each of which offers was open for a period of at least thirty (30) days and none of the offers were accepted. Further affiant sayeth not. )'/ ~P- J. Mlchae heezem Sworn and subscribed to before me this 24- day of September, 1999, by J. Michael Cheezem. t/ Personally Known OR Type of Identification Produced ,";Frt~ GAIL M. COOPER t:;.li."".;% MY COMMISSION # CC 725510 f~~fj EXPIRES: May 14, 2002 ~~Ri.~~.." Bonded Thru Notary Public Underwriters Produced Identification ~oYI ~ Nbtary Public _ Printed Named: 64-; L f-1. Coo P (:. Ie--- Commission Number: CL 71.... 5'5" 1'0 My Commission Expires: 5 ( Il.f( VJo'z-. \\LegaI1 \sys~mc\clearwater property\Sworn statement - Cheezem.wpd