09/01/2005
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CITY COUNCIL MEETING MINUTES
CITY OF CLEARWATER
September 1, 2005
Present:
Frank Hibbard
William C. Jonson
Hoyt P. Hamilton
Carlen Petersen
John Doran
Mayor
Vice-Mayor
Councilmember
Council member
Council member
Also present:
William B. Horne II
Garry Brumback
Rod Irwin
Pamela K. Akin
Cynthia E. Goudeau
Mary K. Diana
City Manager
Assistant City Manager
Assistant City Manager
City Attorney
City Clerk
Assistant City Clerk.
The Mayor called the meeting to order at 6:00 p.m. at City Hall. The invocation was
offered by Reverend David McAbee of Everybody's Tabernacle. The Mayor led the Pledge of
Allegiance.
To provide continuity for research, items are in agenda order although not
necessarily discussed in that order.
4 -Introductions and Awards: - None.
5 - Presentations:
5.1 Senior Center Task Force Recommendations
Senior Task Force Chair Debra Shade and Vice-Chair Dr. William Haley presented
recommendations, which included budgeting for a Manager for Aging, who would coordinate
efforts and work with an advisory committee. The Senior Task Force envisioned integrating
senior services into existing City facilities. While a central web site for seniors is being
developed, some barriers exist.
Senior Task Force efforts were complimented. It was noted the position is included in
next year's budget.
6 - Approval of Minutes
6.1 Auqust 15. 2005 reqular meetinq
Councilmember Jonson moved to approve the minutes of the regular meeting of August
15, 2005, as recorded and submitted in written summation by the City Clerk to each
Councilmember. The motion was duly seconded and carried unanimously.
7 - Citizens to be heard re items not on the Agenda: - None.
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PUBLIC HEARINGS
8 Administrative public hearings
8.1 Approve the recommended Penny for Pinellas proiect list. as revised. for Fiscal Years
2005/06 throuQh 2009/10.
On March 6, 1997, the City Council adopted Ordinance # 6137-97. The ordinance
established the requirement for a special hearing prior to the adoption of the capital
improvement budget to discuss the use of Penny for Pine lias tax, and at any time in which there
is any proposed change to Penny for Pine lias funding of $500,000 or more.
Significant changes to the plan fund five new projects: 1) Ladder Truck -project provides
funding of $850,000 in FY (Fiscal Year) 2005/06 for the replacement of a 1987 Platform Aerial
Truck for the Fire Department; 2) Lona Center Pool- funded in FY 2005/06 for $800,000, this
project provides funding for major renovations to the Long Center pool and related
appurtenances; 3) National Guard Armory Renovation - funded at $150,000 in FY 2005/06, this
project provides funding for the renovation and improvement of this facility to provide storage
space and to consolidate the Special Events operations of the Parks & Recreation Department;
4) Bavfront Promenade - funded in FY 2005/06 for $900,000, this project provides the funding
for construction of a promenade in the vicinity of the Memorial Causeway Bridge as an
enhancement to Coachman Park that will be available for use as a dock for commercial boats
such as ferries; and 5) Lona Center Maior Infrastructure Improvements - this project provides
funding in the amount of $1,705,000 for major building improvements to the Long Center facility
to include air conditioner and roof replacement as well as other major improvements AND the
elimination of one project: 1) Harborbluff Waterfront Park - funding of $2,000,000 has been
eliminated and reallocated to the other project priorities outline above.
This currently approved project reflects a change in project scope and funding level:
Parks & Beautification Infrastructure Complex - This proposal recognizes the elimination of
$2,375,000 of funding for the Parks & Recreation Infrastructure Complex. The project scope
has been changed and no longer will consolidate the Parks & Beautification Division into one
site. The project scope now provides for the construction of a new Parks & Recreation
Administrative Office and will consolidate all administrative functions of the Parks & Recreation
Department into one site.
Councilmember Jonson moved to re-establish the Harborbluff Waterfront Park in the
Penny for Pinellas project list. The motion was duly seconded.
Discussion ensued and it was indicated removing it from the list did not lessen Council's
commitment to the project. It was stated the funds are needed for other projects
Upon the vote being taken, Councilmember Jonson voted "Aye"; Councilmembers
Hamilton, Petersen, and Doran, and Mayor Hibbard voted "Nay." Motion failed.
Councilmember Doran moved to approve the recommended Penny for Pinellas project
list, as revised, for Fiscal Years 2005/06 through 2009/10. The motion was duly seconded and
carried unanimously.
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8.2 Set a final millaqe rate of 5.753 mills for fiscal year 2005/06 levied aqainst non-exempt real
and personal property within the City and pass Ordinance #7496-05. Millaqe Ordinance. on first
readinq
In accordance with the State of Florida's "Truth-in-Millage" (TRIM) Act and the City
Charter it is necessary for the City Council to adopt a final millage rate for the upcoming year.
In July 2005, the City Manager presented his proposed FY 2005/06 Annual Operating and
Capital Improvement Budget recommending a millage rate of 5.753 mills. This millage rate was
approved as a tentative millage rate by the Council at the July 21, 2005 Council meeting. This
rate will generate $47,742,920 of ad-valorem property taxes for the City of Clearwater in FY
2005/06.
Ordinance #7496-05 is now presented in order that this tentative millage rate be adopted
as the final rate for the 2005/06 fiscal year. This rate is the same rate as adopted in each of the
past three years and reflects a 13.74% increase over the rolled back rate of 5.0582 mills.
It was noted removing the number of new FTE (Full-Time Equivalent) positions from the
budget would save $540,000.
Council member Petersen moved to set a final millage rate of 5.753 mills for Fiscal Year
2005/06 levied against non-exempt real and personal property within the City. The motion was
duly seconded and carried unanimously.
Ordinance 7496-05 was presented for first reading and read in full. Councilmember
Hamilton moved to pass Ordinance #7497-05 on first reading. The motion was duly seconded
and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
8.3 Adopt the City of Clearwater Annual Operatinq Budqet for the 2005/06 fiscal year and pass
Ordinance #7497-05 on first readinq.
The City Charter, Pinellas County regulations, and Florida State Statutes outline
requirements that must be met for the City to be able to levy taxes and fees and spend
resources on mandated or desired goods and services. The adoption of this ordinance and two
related ordinances are an integral part of fulfilling these requirements.
In July 2005, the City Manager presented to the City Council a detailed Preliminary
Annual Operating Budget that outlined estimated revenues and proposed expenditures for the
2005/06 fiscal year. Copies of this document were made available to residents and the news
media. The budget was discussed at Council meetings and budget workshops earlier this
summer.
Ordinance #7497-05 is now presented in order to adopt the operating budget and
authorize the City Manager to issue instructions to achieve and accomplish authorized services.
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An opinion was expressed a number of new positions in the budget are not critical and
could be outsourced or filled by temporary staff. A list was distributed that recommended the
elimination of 16.5 new positions, and a budget amendment at first quarter to reflect this change
was proposed.
In response to a question, Fire Chief Jamie Geer said six new firefighter positions will
enhance ladder operations with four-person crews to meet increased call volumes. It was
suggested the additional firefighter positions be deferred until the County Charter Review is
completed, as it was felt a degree of instability in local fire services exist.
Discussion ensued and it was indicated the Council had previously reviewed and
justified the need for each new position. It was believed these additional positions will bring
efficiencies and cost savings.
Councilmember Hamilton moved to adopt the City of Clearwater Annual Operating
Budget for the 2005/06 fiscal year. The motion was duly seconded. Councilmembers
Hamilton, Petersen, and Doran, and Mayor Hibbard voted "Aye." Council member Jonson voted
"Nay." Motion carried.
Ordinance #7497-05 was presented for first reading and read by title only.
Councilmember Petersen moved to pass Ordinance #7497-05 on first reading. The motion was
duly seconded and upon roll call, the vote was:
"Ayes": Hamilton, Petersen, Doran, and Hibbard.
"Nays": Jonson.
Motion carried.
8.4 Adopt the Fiscal Year 2005/06 Capital Improvement Budqet and establishinq a six-year plan
for the Capital Improvement Proqram (CIP) and pass Ordinance #7498-05 on first readinq.
The City Charter, County regulations, and Florida State Statutes outline regulations that
require local governments to prepare and adopt comprehensive planning and development
programs. The Capital Improvement Program plan provides the mechanism to meet these
requirements. Major physical undertakings costing $25,000 or more and having a useful life of
at least three years are defined as "capital" projects and are accounted for in this Capital
Improvement Program.
In July 2005, the City Manager presented to the City Council detailed proposed
operating and capital improvement budgets. The Capital Improvement Program budget outlines
projects and funding sources for $54.6 million of projects to be undertaken in fiscal year
2005/06. The budget also contains a six-year plan, which outlines projects and funding sources
for each of the next six years totaling $339.6 million. Each of these plan years will be reviewed
and revised as needed, and budgets presented for formal budget adoption in subsequent years.
The adopted Capital Improvement Budget can be amended with Council approval through the
quarterly budget review process.
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Councilmember Doran moved to adopt the Fiscal Year 2005/06 Capital Improvement
Budget and establishing a six-year plan for the Capital Improvement Program (CIP). The
motion was duly seconded and carried unanimously.
Ordinance #7498-05 was presented for first reading and read by title only.
Councilmember Hamilton moved to pass Ordinance #7498-05 on first reading. The motion was
duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, and Doran.
"Nays": None.
Absent: Hibbard.
8.5 Approve the applicant's request to vacate Edenville Avenue from the easterly extension of
the south property line of Lot 55. Block "A." Tropic Hill Unit 4 subdivision, (a.k.a. 2450 Burnice
Drive), to the easterly extension of the north property line of said Lot 55. subiect to the retention
of a drainaQe and utility easement over the full width of the riqht-of-way to be vacated and
subiect to removal of existinQ asphalt and curbs within six months of approval of this request
and pass Ordinance Number 7463-05 on first readinQ, (VAC2005-09 Allen).
The applicant is seeking vacation of the street right-of-way portion in order to curtail after
dark meeting and parking activities, lunch hour parking, and littering. The applicant proposes to
remove existing asphalt and curb and to extend new curb along Burnice Drive if the vacation is
approved. Verizon, Brighthouse Cable and Knology have no objections to the vacation request.
Progress Energy has no objections provided that an easement is provided to retain access to
their facilities presently located in the subject right-of-way portion.
The City's Parks and Recreation Department has reviewed the request and has
requested that a 6-foot pedestrian easement be retained to continue the public's access to the
Henry L. McMullen Park via the subject street right-of-way. Public Works Administration
recommends that a 10-foot pedestrian easement be provided to enable construction of a
sidewalk without need for a temporary construction easement. Public Works Administration has
no objection to the vacation request subject to: 1) a drainage and utility easement shall be
retained over the full width of the right-of-way to be vacated, 2) a 10-foot pedestrian easement
shall be retained over the center 1 O-feet of the right-of-way proposed to be vacated, 3) all
asphalt and curbing located within the subject right-of-way portion shall be removed with new
curbing installed along Burnice Drive in accordance with City of Clearwater contract
specifications within six-months of the date of this approval, 4) the applicant shall construct a 6-
foot sidewalk along the center of the pedestrian easement in accordance with City of Clearwater
construction specifications within six months of the date of this approval, and 5) the vacation
approval will become null and void if the preceding conditions number 3 and 4 are not met.
Mike Sa botto, President of Tropic Hills Homeowners Association, said resident
consensus was for the park pass way to continue. The association has requested the City
extend the applicant-constructed sidewalk over a berm to the tennis complex.
The City Manager noted tonight's action on this item is not related to the association's
request. In response to a question, it was indicated the applicant would pay for the sidewalk's
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installation which could take approximately six months. City Engineer Mike Quillen said staff will
review the area for ways to improve access.
Councilmember Petersen moved to approve the applicant's request to vacate Edenville
Avenue from the easterly extension of the south property line of Lot 55, Block "A", Tropic Hill
Unit 4 subdivision, (a.k.a. 2450 Burnice Drive), to the easterly extension of the north property
line of said Lot 55, subject to the retention of a drainage and utility easement over the full width
of the right-of-way to be vacated and subject to removal c;>f existing asphalt and curbs within six
months of approval of this request. The motion was duly seconded and carried unanimously.
Ordinance #7463-05 was presented for first reading and read by title only.
Councilmember Doran moved to pass Ordinance #7463-05 on first reading. The motion was
duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
8.6 Declare as surplus for the purpose of offerinq for sale bv sealed bid in accordance with
Section 2.01 (d)(5) of the City Charter. vacant residential lots described as Lots 6. 7 and 8. Block
B. First Addition to Norwood. for the minimum bid amount of $33.000 per lot.
In late 1998 and early 1999, the City funded demolition of two unsafe structures owned
by Esther C. Hunt at 1500 and 1502 North Greenwood Avenue (now N. Martin Luther King, Jr.
Avenue) and filed liens totaling $3,533.21 for costs. There were a number of unaddressed code
violations in a third structure also owned by Ms. Hunt, and ad valorem taxes for 1998 were
unpaid and delinquent. Ms. Hunt and the City's Housing Division entered into negotiations to
have the City purchase the property.
A February 1, 1999, appraisal performed by Michael McKinley Appraisers/Planners
valued the property at $50,000. On April 23, 1999, the City and Ms. Hunt entered into a
Purchase Agreement for $54,000. In addition to the purchase price, the City agreed to forgive
the demolition liens. The transaction closed and title conveyed to the City by Warranty Deed on
August 23, 1999.
Following recent market interest in the now vacant lots, the City hired State Certified
Residential Appraiser Joseph A. Fornito who estimated the value of each lot at $33,000 on June
14, 2005. Upon sale of the subject lots, sale proceeds will reimburse Intill Housing Fund (181-
99661) for costs incurred to purchase the property in 1999. Excess funds will be applied to
reimburse the City for other incurred holding costs, or accrue as either CDBG (Community
Development Block Grant) program income or in the General Fund Surplus Land Sales account.
Councilmember Hamilton moved to declare as surplus for the purpose of offering for
sale by sealed bid in accordance with Section 2.01 (d)(5) of the City Charter, vacant residential
lots described as Lots 6, 7 and 8, Block B, First Addition to Norwood, for the minimum bid
amount of $33,000 per lot. The motion was duly seconded and carried unanimously.
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8.7 Pass Ordinance #7515-05 on first readino, establishino the Clearwater Cay Community
Development District pursuant to Chapter 190, Florida Statutes; describinq the external
boundaries of the district; describino the functions and powers of the district; consentino to the
use of special powers by the district; desiqnatino five persons to serve as the initial members of
the district's Board of Supervisors.
DC703, LLC, has petitioned the City to adopt an ordinance establishing the Clearwater
Cay Community Development District pursuant to the "Uniform Community Development District
Act of 1980," Chapter 190, Florida Statutes, (hereinafter the "Act"). Community Development
Districts are independent special districts that finance, construct, and manage basic community
development services (Le. roads, parks, water management, etc.). The proposed district
consists of approximately 49.37 acres of land located entirely within the City limits on a site,
which is east of U.S. Highway 19 and north of Haines-Bayshore Road.
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The Act is designed specifically to provide a uniform and exclusive procedure for the
formation, operation, and termination of Community Development Districts. For the formation of
a Community Development District of less than 1,000 acres, the Act provides that a local
government first must approve the petition and enact the establishing ordinance after public
hearings and testimony as to: 1) Whether all statements contained within the petition have been
found to be true and correct; 2) Whether the establishment of the district is inconsistent with any
applicable element or portion of the State comprehensive plan or of the effective local
government comprehensive plan; 3) Whether the area of land within the proposed district is of
sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one
functional interrelated community; 4) Whether the district is the best alternative available for
delivering community development services and facilities to the area that will be served by the
district; 5) Whether the community development services and facilities of the district will be
incompatible with the capacity and uses of existing local and regional community development
services and facilities; and 6) Whether the area that will be served by the district is amenable to
separate special district government.
The appropriate City staff has reviewed the petition for establishment of the District on
the proposed land and it is complete and sufficient.
Thomas Cloud, representative for the applicants, reviewed Florida law related to an
independent special district, submitted sworn statements and are attached to these minutes as
Exhibit 1, and reviewed standards for approval. He said the applicants had met with staff
regarding this issue in early 2005 and filed a petition for a Community Development District in
March 2005. The petition was redone and refiled in June. He said all required consents have
been submitted, including the consent of the Grand Bellagio's homeowners association.
Dave Clark, owner of DC703, LLC, said his firm specializes in waterfront resort projects
and indicated the subject property is a unique asset in the city. He said traditional financing for
this type of project is difficult to obtain. Bond financing allows the loan to be paid back over 30
years. Only property owners within the district will be repaying the bonds. As proposed, the
project will feature a waterfront, festival-style development with a class A office building, water
park, etc. He believed the ambitious project will revitalize the entire area.
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Mr. Cloud said the Community Development District will permit the redevelopment of a
failing shopping center. He said approval of the district does not grant land use approvals,
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which would come back to Council for approval. He said Cove Cay is not included in the
proposed district. The bonds will have to be validated and the resulting debt never will be the
City's responsibility.
In response to questions, Mr. Clark said he is aware of the plan to elevate US 19N in
front of the project and has no intention of approaching FDOT (Florida Department of
Transportation) for reverse condemnation related to the elevated roadway. The City Attorney
indicated approval of the district will not change access to the Grand Bellagio and Venetia
developments.
In response to a question, Mr. Cloud said the petitioner nominates the initial Board of
Directors, which will be turned over to property owners in six years. He said the current General
Commercial zoning allows a water park use. The special assessment will be charged via
annual tax bills to all property owners, not tenants and the City will indicate which sewer lines it
wants the project to maintain.
Seven people spoke in support and five people spoke in opposition of the Community
Development District.
In response to questions, Mr. Cloud said the Grand Bellagio is not included in the
district's boundaries and that development will not be assessed. He said no change to the
entrance to the Grand Bellagio will occur. The district will own the parking facilities, stormwater
facilities, water park, and the roadways. Mr. Cloud said the district will not impede nor enhance
the Cove Cay development, which is not part of the district. He said a consent form, signed by
the Grand Bellagio Homeowners Association, has been submitted and is attached to these
minutes as Exhibit 2.
Scott Callahan, representative, said a five-foot section of Grand Bellagio property is in
the district but no related consequence will impact Grand Bellagio residents, who will not be
assessed. Mr. Clark said bonds will not finance everything in the development, just the public
elements of the park, which will be owned by the district. Actual rides and theme uses not
owned by the district will be run by for profit organizations. It is required that purchasers of
district property be disclosed information regarding bond and maintenance assessments.
Discussion ensued with comments that improvements to the blighted shopping center
will increase the tax base and the risks to the City are negligible.
Councilmember Petersen moved to establish the Clearwater Cay Community
Development District pursuant to Chapter 190, Florida Statutes; describing the external
boundaries of the district; describing the functions and powers of the district; consenting to the
use of special powers by the district; designating five persons to serve as the initial members of
the district's Board of Supervisors. The motion was duly seconded and carried unanimously.
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Ordinance #7515-05 was presented for first reading and read by title only.
Councilmember Doran moved to pass Ordinance #7515-05 on first reading. The motion was
duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
9 Quasi-judicial public hearings - None
10 Second Readings - public hearing
10.1 Adopt Ordinance #7467-05 on second readino, amendino the future land use plan element
of the Comprehensive Plan of the City, to chanoe the land use desionation for certain real
property whose post office address is 1834 North Belcher Road from Industrial Limited to
Commercial General.
Councilmember Jonson noted his opposition to changing the land use designation.
Ordinance #7467-05 was presented for second reading and read by title only.
Council member Hamilton moved to pass and adopt Ordinance #7467-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Hamilton, Petersen, and Hibbard.
"Nays": Jonson.
Absent: Doran.
Motion carried.
10.2 Adopt Ordinance #7468-05 on second readino amendino the zonino atlas of the City by
rezonino certain property whose post office address is 1834 North Belcher Road, from Industrial
Research Technolooy to Commercial.
Ordinance #7468-05 was presented for second reading and read by title only.
Council member Petersen moved to pass and adopt Ordinance #7468-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Hamilton, Petersen, Doran, and Hibbard.
"Nays": Jonson.
Motion carried.
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10.3 Adopt Ordinance #7469-05 on second readinq, amendinq the future land use plan element
of the Comprehensive Plan of the City. to chanqe the land use desiqnation for certain real
property whose post office address is 1822 North Belcher Road from Industrial Limited to
Commercial General.
Ordinance #7469-05 was presented for second reading and read by title only.
Councilmember Doran moved to pass and adopt Ordinance #7469-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Hamilton, Petersen, Doran, and Hibbard.
"Nays": Jonson.
Motion carried.
10.4 Adopt Ordinance #7470-05 on second readinq, amendinq the zoninq atlas of the City by
rezoninq certain property whose post office address is 1822 North Belcher Road from Industrial
Research Technoloqy to Commercial General.
Ordinance #7470-05 was presented for second reading and read by title only.
Councilmember Hamilton moved to pass and adopt Ordinance #7470-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Hamilton, Petersen, Doran, and Hibbard.
"Nays": Jonson.
Motion carried.
10.5 Adopt Ordinance #7471-05 on second readinq, annexinq certain real property whose post
office address is 1355 Union Street. into the corporate limits of the City, and redefininq the
boundary lines of the City to include said addition.
Ordinance #7471-05 was presented for second reading and read by title only.
Councilmember Petersen moved to pass and adopt Ordinance #7471-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
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10.6 Adopt Ordinance #7472-05 on second readinq, amendinq the future land use plan element
of the Comprehensive Plan of the City. to desiqnate the land use for certain real property whose
post office address is 1355 Union Street. upon annexation into the City of Clearwater, as
Residential Urban.
Ordinance #7472-05 was presented for second reading and read by title only.
Council member Doran moved to pass and adopt Ordinance #7472-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
10.7 Adopt Ordinance #7473.:.05 on second readinq, amendinq the zoninq atlas of the City by
zoninq certain real property whose post office address is 1355 Union Street. upon annexation
into the City of Clearwater. as Low Medium Density Residential (LMDR).
Ordinance #7473-05 was presented for second reading and read by title only.
Councilmember Hamilton moved to pass and adopt Ordinance #7473-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
10.8 Adopt Ordinance #7477-05 on second readinq, annexinq certain real property whose post
office address is 2748 Shaddock Drive, into the corporate limits of the City. and redefininq the
boundary lines of the city to include said addition.
Ordinance #7477-05 was presented for second reading and read by title only.
Councilmember Jonson moved to pass and adopt Ordinance #7477-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
10.9 Adopt Ordinance #7478-05 on second readinq. amendinq the future land use plan element
of the Comprehensive Plan of the City. to desiqnate the land use for certain real property whose
post office address is 2748 Shaddock Drive. upon annexation into the City of Clearwater, as
Residential Low.
Ordinance #7478-05 was presented for second reading and read by title only.
Council member Petersen moved to pass and adopt Ordinance #7478-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
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10.10 Adopt Ordinance #7479-05 on second readinq, amendinq the zoninq atlas of the City by
zoninq certain real property whose post office address is 2748 Shaddock Drive, upon
annexation into the City of Clearwater, as Low Medium Density Residential (LMDR).
Ordinance #7479-05 was presented for second reading and read by title only.
Councilmember Doran moved to pass and adopt Ordinance #7479-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
10.11 Adopt Ordinance #7480-05 on second readinq, annexinq certain real property whose post
office address is 3000 Lake Vista Drive. into the corporate limits of the City and redefininq the
boundary lines of the City to include said addition.
Ordinance #7480-05 was presented for second reading and read by title only.
Council member Hamilton moved to pass and adopt Ordinance #7480-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
10.12 Adopt Ordinance #7481-05 on second readinq, amendinq the future land use plan
element of the Comprehensive Plan of the City. to desiqnate the land use for certain real
property whose post office address is 3000 Lake Vista Drive, upon annexation into the City of
Clearwater, as Residential Low.
Ordinance #7481-05 was presented for second reading and read by title only.
Councilmember Jonson moved to pass and adopt Ordinance #7481-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
10.13 Adopt Ordinance #7482-05 on second readinq. amendinq the zoninq atlas of the City by
zoninq certain real property whose post office address is 3000 Lake Vista Drive, upon
annexation into the City of Clearwater. as Low Medium Density Residential (LMDR).
Ordinance #7482-05 was presented for second reading and read by title only.
Councilmember Petersen moved to pass and adopt Ordinance #7482-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
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10.14 Adopt Ordinance #7483-05 on second readinq, annexinq certain real property whose post
office address is 1555 Bonair Street. into the corporate limits of the City and redefininq the
boundary lines of the City to include said addition.
Ordinance #7483-05 was presented for second reading and read by title only.
Council member Doran moved to pass and adopt Ordinance #7483-05 on second and final
reading. The motion was duly seconded.
One resident spoke in support of maintaining large lot sizes in the neighborhood.
Upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
10.15 Adopt Ordinance #7484-05 on second readinq, amendinq the future land use plan
element of the Comprehensive Plan of the City to desiqnate the land use for certain real
property whose post office address is 1555 Bonak Street. upon annexation into the City of
Clearwater, as Residential Low.
Ordinance #7484-05 was presented for second reading and read by title only.
Councilmember Hamilton moved to pass and adopt Ordinance #7484-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, and Doran.
"Nays": None.
Absent: Hibbard.
10.16 Adopt Ordinance #7485-05 on second readinq, amendinq the zoninq atlas of the City by
zoninq certain real property whose post office address is 1555 Bonair Street. upon annexation
into the City of Clearwater. as Low Medium Density Residential (LMDR).
Ordinance #7485-05 was presented for second reading and read by title only.
Councilmember Petersen moved to pass and adopt Ordinance #7485-05 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Petersen, Doran, and Hibbard.
"Nays": None.
"Absent": Hamilton
10.17 Continue adoption of Ordinance #7491-05 on second readinq, vacatinq the portion of
Rollen Road riqht-of-way that lies between Lot 1, Block E., Pine Ridqe, and Lot 1, Block E.
Pinebrook Hiqhlands, subiect to a drainaqe and utility easement which is retained over the full
Council 2005-09-01
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width thereof to September 15. 2005.
AND
10.18 Continue the adoption of Ordinance #7492-05 on second readinq. vacatinq the drainaqe
and utility easement described as the south twenty feet of the vacated north one-half of
Chautauqua Boulevard. Iyinq south of Blocks Forty and Forty-one. bounded on the east by the
westerly riqht-of-way line of Lake Shore Drive. and on the west by the southerly extension of the
west property line of Lot 11. Block 40. Chautauqua Unit 1. Section A to September 15. 2005.
AND
Council 2005-09-01
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10.19 Continue adoption of Ordinance #7486-05 on second readino, annexinq certain real
property whose post office address is 2695 Second Avenue South, into the corporate limits of
the city and redefinino the boundary lines of the city to include said addition to October 20,
2005.
AND
10.20 Continue adoption of Ordinance #7487-05 on second readino, amendino the future land
use plan element of the Comprehensive Plan of the city to desionate the land use for certain
real property whose post office address is 2695 Second Avenue South, upon annexation into
the City of Clearwater, as Residential Sinole and Preservation to October 20, 2005.
AND
10.21 Continue adoption of Ordinance #7488-05 on second readino, amendino the zonino atlas
of the city by zonino certain real property whose post office address is 2695 Second Avenue
South, upon annexation into the City of Clearwater, as Low Density Residential (LOR) and
Preservation (P) to October 20, 2005.
Councilmember Jonson moved to continue Items 10.17, 10.18 to September 15, 2005,
and Items 10.19, 10.20, and 10.21 to October 20, 2005. The motion was duly seconded and
carried unanimously.
City Manager Reports
. 11 Consent Agenda - Approved as submitted.
11.1 Amend Council Policy "L" Enterprise Fund Transfer Payment. to reflect an increase in the
percentaoe to be used to calculate the payment in lieu of taxes (PILOT).
11.2 Approve Brownfields Site Rehabilitation Aoreement (BSRA) #BF529701 004 for the
property consistino of 3.442683 acres, more or less, known as the Clearwater Automotive site
qenerally located at 205 S. Martin Luther Kino, and authorize appropriate officials to execute
same.
11.3 Approve renewal of the Manaoement Aoreement with Clearwater Community Sailino
Association for a five year period, for total payments of $66,000 to the City, plus yearly
Consumer Price Index increases and authorize the appropriate officials to execute same.
11.4 Approve a one-year fundino aoreement, in the amount of $281,220 between Jolley Trolley
Transportation of Clearwater Inc. and the City of Clearwater for the operation of transportation
and trolley services on Clearwater Beach, Island Estates, Sand Key and services from
Clearwater Beach to Downtown Clearwater and the appropriate officials be authorized to
execute same.
.
11.5 Approve the lease purchase financino for a mobile performance platform: award a contract
to Century Industries, LLC of Sellersburo, Indiana, in the amount of $39,083 and establish a
capital improvement proiect for the purchase of the performance platform in the amount of
$39,083 to be funded from lease purchase financino.
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11.6 Approve an addendum to the aqreement between the City of Clearwater and the School
Board of Pinellas County. Florida to continue to provide one additional School Resource Officer
at each hiqh school. Clearwater and Countryside. durinq school year 2005/2006. and authorize
the appropriate officials to execute same.
11.7 Approve a work order to TBE Group. Inc. (EOR) in the amount of $134.410 for utility
relocation desion services beino performed in coni unction with the Florida Department of
Transportation's (FOOT) S.R. 55/US 19 (South of Seville Blvd. to North of S.R. 60) roadway
improvement proiect and authorize the appropriate officials to execute same.
11.8 Reappoint Mayor Hibbard to the Pinellas County Metropolitan Planninq Orqanization with
the term expirino on September 11. 2009.
Councilmember Petersen moved to approve the Consent Agenda as submitted and that
the appropriate officials be authorized to execute same. The motion was duly seconded and
carried unanimously.
12 Other items on City Manager Reports
12.1 Approve amendment to Chapter 33. Section 33.067 of the Code of Ordinances addinq a
slow speed minimum wake zone alonq the Gulf of Mexico side of Sand Key Beach and pass
Ordinance #7494-05 on first readino.
In the interest of public safety, boater education and to provide continuity of waterway
marking from municipality to municipality, a slow speed minimum wake zone along the Gulf of
Mexico side of Sand Key Beach from the City limits parallel to Sand Key Estates Court, north, to
the extended property line of the Sheraton Sand Key Resort at 1160 Gulf Boulevard, is
recommended.
Neighboring municipalities have implemented wake zone restrictions along their Gulf
beaches. Boaters leaving those zones cut into shore at the Clearwater City limits going full
throttle to jump waves or other boat wakes, or water ski as conditions permit, creating a danger
to swimmers. Implementing a slow speed minimum wake zone in this area will slow down these
boats. The continuity of signage along the coastline will also assist the Pinellas County Marine
Service Unit enforce the area. The cost to purchase and to have the buoys installed will be less
than $20,000.
Councilmember Petersen moved to approve amendment to Chapter 33, Section 33.067
of the Code of Ordinances adding a slow speed minimum wake zone along the Gulf of Mexico
side of Sand Key Beach. The motion was duly seconded. Councilmembers Jonson, Petersen,
Doran, and Mayor Hibbard voted "Aye"; Councilmember Hamilton voted "Nay." Motion carried.
Council 2005-09-01
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Ordinance #7494-05 was presented for first reading and read by title only.
Councilmember Doran moved to pass Ordinance #7494-05 on first reading. The motion was
duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Petersen, Doran, and Hibbard.
"Nays": Hamilton.
Motion carried.
12.2 Approve an Additional Homestead Exemption for certain qualifyino low income senior (65
years or older) citizens and pass Ordinance #7499-05 on first readino.
The Florida Constitution grants many residents an exemption of $25,000 from their
property's assessed value when tax levies are determined by the Pine lias County Property
Appraiser's Office. This "homestead exemption" is granted to those applicants with legal title
property as recorded in official records who are bona fide Florida residents living in a dwelling
and making it their permanent home on January 1 of the taxable year. State of Florida voters
approved another constitutional provision in 1998 that allows municipalities to grant an
additional limited homestead exemption to senior citizens that meet certain income criteria.
Until recently, there was not enough data to determine the impact on City of Clearwater
revenues of granting an additional exemption for these residents. Now however, after reviewing
data from several neighboring municipalities that have instituted this exemption, it is the staff's
opinion that the benefit to the City's qualifying low-income senior citizens outweighs the small
anticipated loss of property tax revenue associated with this exemption. To be eligible, the
person must be at least 65 years of age, have household income below the set threshold
($20,000 in 2000, adjusted annually), and the property must qualify for the original homestead
exemption.
Staff recommends adopting Ordinance #7499-05, Additional Homestead Exemption for
Persons 65 and Older, which will grant some property tax relief for this segment of our
community. If adopted, the additional senior exemption will go into effect, not this coming
budget year, but the following budget year. Citizens will see the additional exemption notice on
their TRIM bills in August 2006, along with instructions as to what will be required to receive the
exemption.
Councilmember Hamilton moved to approve an additional Homestead Exemption for
certain qualifying low income senior (65 years or older) citizens. The motion was duly
seconded and carried unanimously.
Ordinance #7499-05 was presented for first reading and read by title only.
Councilmember Jonson moved to pass Ordinance #7499-05 on first reading. The motion was
duly seconded and upon roll call, the vote was:
"Ayes": Jonson, Hamilton, Petersen, Doran, and Hibbard.
"Nays": None.
Council 2005-09-01
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12.3 Ratify and confirm the purchase of property. casualty. liability. workers' compensation.
emerqency medical services (EMS). fuel tank. and flood insurance coveraqe for Fiscal Year
2005/2006 as provided for in this aqenda item in an amount not to exceed $2.816.766.
The Risk Management Division of the Finance Department purchases insurance
coverage for the City in the above-named areas. This insurance is purchased through the
efforts of three brokers: 1) Acordia Southeast; 2) Insurance & Risk Management Services; and
3) Arthur J. Gallagher & Co. - TampaBay.
The City Administration, through its Risk Management Division, recommends that the
City purchase insurance coverage for FY 2005/06 as follows: 1) Excess Property - October 1,
2005 - April 1, 2007; 2) Equipment Breakdown - October 1, 2005 - October 1, 2006; 3) Marina
Operators Legal Liability - October 1,2005 - October 1,2006; 4) Storage Tank Liability
(specific properties) 5/20/2005-5/20/206- May 20,2005 - May 20,2006; 5) Flood (specific
properties) Annual term - various dates; 6) Crime and Dishonesty - October 1, 2005 - October
1, 2006; 7) Excess LiabilitylWorkers' Compensation ($500K SIR) - October 1, 2005 - October 1,
2006; and 8) EMS (Emergency Medical Services) Liability (reimbursed) - October 1,2005-
October 1, 2006.
Also recommended are 1) General Liability/Professional Liability; 2) Business
Automobile Liability; and 3) Excess EMS General/Auto/Professional Liability. Premium for
excess property insurance has increased more significantly than anticipated. The values have
increased from $348M to $388M and the rates per $100 of coverage also increased.
.
Risk Management also recommends that the policy period for property coverage be
increased from a 12-month to an 18-month term. The anticipated cost of $726,813 is included
in the sum total of this agenda item. Subsequent property renewals will be on an annual basis.
It is believed insurance will be more readily available and quotes easier to obtain by changing
our annual renewal period for property insurance from hurricane season.
The sum of $1,698,470 was budgeted, based on projections from all three brokers. The
total requested at this time is $2,816,766. An additional amount of $391 ,483 is necessary for
coverage for the period October 1, 2005 - October 1, 2006, and an additional amount of
$726,813 is anticipated to extend the policy term for property insurance to April 1 , 2007.
Request additional funds not currently budgeted to be taken from retained earnings.
The current balance of retained earnings in the fund is in excess of $5 million. All risks are
covered at levels and rates which, when taken together as a whole, represent a reasonable and
conservative insurance program for the City.
The City Manager said the insurance coverage was purchased to lock in rates and for
the ability to obtain insurance, due to the impacts of Hurricane Katrina. New terms will expire in
April 2007, to allow future renewals to be done outside of the hurricane season.
Councilmember Petersen moved to ratify and confirm the purchase of property, casualty,
liability, workers' compensation, emergency medical services (EMS), fuel tank, and flood
insurance coverage for Fiscal Year 2005/2006 as provided for in this agenda item in an amount
not to exceed $2,816,766. The motion was duly seconded and carried unanimously.
.
Council 2005-09-01
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13 City Attorney Reports
13.1 In accordance with a request bv First American Title Company on behalf of Boos
Development GrouP. approve for execution bv the appropriate City officials. an Affidavit
confirminq the City does not claim an ownership interest in submerqed lands underlvinq
"Waterwavs" as described in that certain Plat of Unit Two Island Estates of Clearwater
(recorded in Plat Book 47. Paqes 19A and 20 of the Public Records of Pinellas County. Florida).
In 1957, The North Bay Company platted Unit 2 Island Estates of Clearwater. The plat
dedicated "to the Public in general all streets, waterways and public places shown on this plat."
The City was therefore entrusted with oversight of the "waterways" on behalf of the public. The
plat resulted in 18 developable lots for sale, but never contemplated a transfer of ownership of
the adjacent submerged lands. As a result, the North Bay Company, or its successor-in-interest
retained ownership of the bottomland.
As potential successor-in-interest, Boos Development Group, in the course of
completing the appropriate title work prior to closing through First American Title, is requesting
confirmation that the City does not claim an ownership interest in the submerged lands
underlying the "waterways" as dedicated for use by the public. It is City staff opinion that the
plat does not result in an ownership interest in the name of the City, nor has any deed or other
legal document ever been executed resulting in same. This property is directly across the street
from Publix.
Councilmember Doran moved that in accordance with a request by First American Title
Company on behalf of Boos Development Group, to approve for execution by the appropriate
City officials, an Affidavit confirming the City does not claim an ownership interest in submerged
lands underlying 'Waterways" as described in that certain Plat of Unit Two Island Estates of
Clearwater (recorded in Plat Book 47, Pages 19A and 20 of the Public Records of Pine lias
County, Florida). The motion was duly seconded and carried unanimously.
Attorney/Client Session
The City Attorney requested an attorney/client session regarding National Advertising
versus the City be scheduled for October 20, 2005, at 4:30 p.m. Consensus was to schedule.
14 City Manager Verbal Reports: - None.
The Council recessed from 8:40 to 8:49 p.m.
15 Council Discussion Items
15.1 Direction re Old Florida District
Planning Director Michael Delk summarized efforts in working with the neighborhood to
provide clarity and consistency when applying the development standards in the Old Florida
District. He presented several use and height options.
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One person spoke in support of a 75-foot height limit, adding that a petition, signed by
75% of "Old Florida District" landowners in support of that limit, would be submitted within two
weeks.
Staff presented a list of questions for Council consideration. Discussion ensued
regarding uses, building heights and transition areas in the Old Florida District.
Direction was to allow overnight accommodations and residential uses throughout Old
Florida District with mixed uses along Mandalay Avenue; limit building heights on north side of
Somerset Street to 35 feet; limit building heights to 50 feet for properties within 60 feet of the
south edge of Somerset Street; limit building heights in remainder of district to 65 feet; and that
achievement of heights above 35 feet be performance based related to setbacks, step backs,
good design, and architectural detail.
Concern was expressed the proposed limits would not encourage the redevelopment
and/or construction of smaller hotels and that incentives were needed. Comments were made
Council is committed to developing incentives to encourage this type of development and staff is
working on the issue.
15.2 Relocation of Calvary Baptist Church Chapel
The Mayor reported he continues to receive information regarding the proposal to
relocate the Calvary Baptist Church Chapel. He commended staff for their efforts and noted a
tremendous amount of risk and unknowns related to the proposal exist. He expressed
trepidation regarding the high cost estimates to move the structure, retrofit it, and operate it.
In response to a question, Public Works Administrator Mahshid Arasteh estimated the
structure would have to be approximately 10 feet off the ground to meet FEMA (Federal
Emergency Management Authority) requirements. Consultant Heidt said the quality of the soil
along the waterfront would have to be explored. He said the surrounding structures need to be
demolished before jacks are put in place to move the chapel. Mr. Heidt said if more time were
available, the City could apply for available grants to offset some of the costs.
One person spoke in support of relocating the Calvary Baptist Church Chapel.
It was felt efforts to save the chapel had started too late and concern was expressed
regarding uncertainty with the estimates.
In response to a question, Finance Director Margie Simmons said bonds could be issued
quickly, after a referendum on the issue is approved by voters. It was felt this project is risky
and extremely expensive.
Consensus was not to pursue relocating the Calvary Baptist Church Chapel.
The Mayor thanked the Council and staff for their effort and support.
Council 2005-09-01
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16. Other Council Action
Councilmembers reported on events in which they recently participated and reviewed
upcoming events; expressed concerns regarding devastation wrought by Hurricane Katrina,
requested prayers for the victims, and encouraged residents to conserve energy and support
relief efforts.
Councilmembers Jonson, Hamilton. Petersen. and Doran complimented the Mayor's
efforts to relocate Calvary Baptist Church Chapel.
Councilmember Doran invited residents to attend upcoming Visioning Sessions and
provide comment.
Councilmember Jonson requested consideration of a method to base future salary
decisions for City Manager and City Attorney; recommended the City forward list of priorities to
Suncoast League of Cities Legislative Committee.
17. Adjourn
The meeting adjourned at 10:22 p.m.
-:/~ ~~
L..M8yor
City of Clearwater
Attest:
- 2: )L~ OOrr1_
Council 2005-09-01
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EXHIBIT 1 TO THE COUNCIL MINUTES DATED 9/1/05
BEFORE THE CITY COUNCIL
OF THE CITY OF CLEARWATER, FLORIDA
IN RE: PROPOSED ORDINANCE PURSUANT )
TO SECTION 190.005(2), FLORIDA STATUTES, )
TO ESTABLISH THE CLEARWATER CAY )
COMMUNITY DEVELOPMENT DISTRICT )
)
TESTIMONY OF FRED DAVIS CLARK
FOR CLEARWATER CAY COMMUNITY DEVELOPMENT DISTRICT
1. Please state your name and business address.
My name is Fred Davis Clark. My business address is 2704 Via Murano,
Clearwater, Florida 33764.
2.
By whom are you employed and in what capacity?
I am the Manager of DC701, LLC, which is the Manager of DC703, LLC, which is
the owner and successor developer of the Grand Venezia at Baywatch
Condominium Project, and own or have under contract the commercial and office
properties within the proposed District.
3.
How long have you held that position?
I have held this position for over one year.
4. Briefly summarize your duties and responsibilities.
In my current capacity, I oversee all aspects of land development operations in
Florida. I also am in charge of Florida daily operations including financial issues,
legal issues, government relations and administrative responsibilities.
5. What positions did you hold prior to your present position?
From 1987 to 2004, I was in charge of all development operations for the Rosen
Development Group throughout Florida. The Rosen Development Group dates
back to 1908. A history of the Rosen Development Group and EarthMark
Companies is attached as Exhibit "A". For my last two years at Rosen, I was
president of EarthMark Companies. From 1982 to 1987, I was involved in real
estate development within the State of Florida. From 1979 to 1982, I served as an
accountant for Ernst & Ernst.
6.
Briefly describe your educational background.
Page 1 of 8
.
I earned a Bachelor of Science in Accounting from the University of Central Florida
in 1979.
7.
Who is the Petitioner in this proceeding?
The Petitioner is DC703, LLC, a Florida limited liability company.
8. Are you familiar with the Petition filed by DC703, LLC seeking the
establishment of a community development district?
Yes. I assisted in the formulation of the Petition and accompanying documents, and
met with members of the consultant team we hired to prepare the filing. I also
reviewed the Petition and accompanying documents prior to their filing.
9. What is the proposed name of the District?
The Clearwater Cay Community Development District.
10. Have you reviewed the contests of the Petition and approved its findings?
Yes, I have.
. 11. Are there any changes or corrections to the Petition at this time?
No.
12. Are there any changes or corrections to any of the documents attached to the
Petition at this time?
No.
13. Please generally describe each of the documents attached to the Petition.
Exhibit A is a Clearwater Cay Club Community Development District survey.
Exhibit B is a legal description of the land comprising the Clearwater Cay Club
Community Development District.
Exhibit C is the Clearwater Cay Club Community Development District consent of
land owners.
Exhibit D is a list of the Clearwater Cay Club Community Development District
Board of Supervisors.
.
Exhibit E are maps showing current major trunk water mains, sewer interceptors
Page 2 of 8
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and outfalls.
Exhibit F is the Clearwater Cay Club Community Development District
Preliminary Infrastructure Cost Opinion.
Exhibit G is the Statement of Estimated Regulatory Costs (SERC).
Exhibit H are maps (including Aerial, Water Park, Overall Master Plan, Site Plan,
Future Land Use, Zoning and narrative).
Exhibit I is an Authorization of Agent - W. Scott Callahan, Esquire and Thomas A.
Cloud, Esquire.
14. Were these documents attached to the Petition prepared by you or under your
supervision?
Yes.
15. To the best of your knowledge, is the survey identified as Exhibit A to the
Petition a true and accurate depiction of the general location of the proposed
District?
Yes.
16. To the best of your knowledge, is the written legal description included in
Exhibit B to the Petition, a true and accurate recitation of the land area to be
included within the proposed District?
Yes.
17 . To the best of your knowledge, is Exhibit C to the Petition a true and accurate
copy of the Consent and Joinder obtained from the owner of one hundred
percent (100%) of the lands to be included within the proposed District in
accordance with Section 190.005, Florida Statutes?
Yes, it is.
18. To the best of your knowledge, is Exhibit H to the Petition an accurate
depiction of the future land uses within and around the boundaries of the
proposed District?
Yes.
19. To the best of your knowledge, does Exhibit E show the current major trunk
water mains and sewer interceptors within and around the boundaries of the
proposed District?
Page 3 of 8
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Yes.
20.
To the best of your knowledge, is Exhibit H to the Petition a true and accurate
depiction of the development plan for the lands to be included within the
District?
Yes, it is.
21. To the best of your knowledge, is Exhibit F to the Petition a true and accurate
recitation of the facilities and services presently expected to be provided
within the proposed District and the expected cost of the proposed
improvements?
Yes.
22. To the best of your knowledge, is Exhibit H to the Petition a true and correct
copy of an aerial photograph ofthe area in and around the proposed District?
Yes, it is.
23. Therefore, are the contents of the Petition and the documents attached to it
true and correct to the best of your knowledge?
. Yes.
24. Are you familiar with the area that is proposed to be included in the District?
Yes, I am familiar with the general area and the site specifically.
. 25. Approximately how large is the proposed District in acres?
The proposed District is located entirely within the limits of Clearwater, Florida, and
covers approximately 49.37 acres. - --.- ~
26. What steps were taken with respect to filing the Petition with the City Council
of the City of Clearwater, Florida?
On March 4, 2005, the Petitioner formally filed (1) original and ten (10) copies of a
Petition with exhibits with the City Attorney. Following two meetings with City staff,
the Petitioner filed a Supplemental Petition plus exhibits with the City Attorney. This
filing took place on June 17, 2005.
27. Has notice of the hearing been provided in accordance with Section 190.005,
Florida Statutes?
.
Page 4 of 8
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Yes. The Petitioner arranged for newspaper notice of the hearing scheduled by the
City Council to be published in The Sf. Pete Times. A hearing was originally noticed
for September 1, 2005 at 6:00 PM at the City Council Chambers at the City of
Clearwater City Hall, 112 S. Osceola Avenue, Clearwater, Florida 33758. Notice
provided by the Petitioner is compliant with the requirements of Florida law.
28.
And do you have proof of publication of those notices?
At the time this testimony is pre-filed, I do not yet have the proofs of publication from
The Sf. Pete Times. I will have that documentation available at the September 15,
2005 public hearing.
29. Is The St. Pete Times a newspaper of general circulation in Clearwater,
Florida?
Yes, it is.
30. Who are the five persons designated in the Petition to serve as the initial
Board of Supervisors?
The five persons are Darcy Edwards, Gary Schwarz, David Schwarz, Cristal
Coleman and Fred Clark, Sr.
. 31. Do you know each of these persons personally?
Yes, I do.
32. Are each of the persons designated to serve as the initial Board of
Supervisors residents ofthe State of Florida and citizens ofthe United States?
Yes, they are.
33. -Are there~residentiaLunits planned for development within the proposed
District?
Yes. There are 336 apartment units (converted to condominiums) or 24.08 acres
known as the Via Venezia. The remaining proposed program is listed in Exhibit "H"
but is subject to review and discretionary approval of the City of Clearwater which
has not yet been granted.
34.
If the City Council in its discretion approves this Supplemental Petition to
create the District, does this affect land use or zoning on the property?
.
Absolutely not. The land use and zoning on the property is still subject to all City
land development codes and regulations. Chapter 190 specifically recognizes that
creation of the District has no effect on land use and zoning.
Page 5 of 8
. 35. Are there residents currently living within the areas to be included within the
District, and, if so, have they been notified about the creation of the District?
Yes. All residents have consented to creation of the District.
36. Would you please describe the proposed timetable for development of land
within the proposed District?
The proposed timetable for the construction of infrastructure to develop the land is
expected to occur during the period running from 2006 to 2010.
37.
Would you generally describe the services and facilities you currently expect
the proposed District to provide?
.
The Petitioner presently intends for the District to participate in acquisition or
construction of certain roads and miscellaneous traffic improvements, certain water
and sewer facilities, certain water park and stormwater improvements as described
in Exhibit "F" of the Supplemental Petition, park, landscaping, security and parking
facilities. Capital costs of these improvements will be borne by the District. The
Petitioner's good faith expectation of the costs associated with the acquisition or
construction of such improvements is itemized in Exhibit "F" of the Supplemental
Petition. The District has agreed toenter into a written agreement with the City to
define those facilities which the City wants to own (if any) and those facilities which
the District shall own, operate, and maintain.
38.
In general, what financing methods does the Petitioner propose for the
proposed District to pay for the anticipated facilities and services?
The Petitioner presently expects that the District will finance certain services and
improvements through the issuance of tax exempt bonds. The debt issued by the
proposed District is expected to be retired by "non-ad valorem" or "special"
assessments on benefited property within the proposed District. Ongoing
maintenance and operational activities are expected to be funded by maintenance
assessments. At present, the Petitioner expects to have the District issue one long
term bond issue that will pay a portion of the cost of these facilities. Any facilities
not financed with the bond issue will be funded by the developer and conventional
bank financing. Under no circumstances will the District be used to finance the
construction or maintenance of a golf course within the development.
39.
Who will be responsible for paying the proposed District's assessments?
.
Only those property owners within the proposed District will be responsible for
paying District assessments. We do not expect the proposed District to issue
general obligation debt which pledges its full faith and credit.
Page 6 of 8
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40. Will these proposed District debts be an obligation of the City of Clearwater or
the State of Florida?
No. Florida law provides that community development district debt cannot become
the obligation of a county, a city, or the state without the consent of that
government.
41.
Why is DC703, LLC seeking to have a community development district
established for this area?
.
I have been involved in the redevelopment and revitalization of coastal commercial
properties in Florida for almost 30 years. Some properties not directly located on
the beach present unique challenges to redevelopment,- and the commercial lands
within the proposed District are one of those properties. To redevelop the existing
abandoned commercial property, counteract the negative market impacts projected
to occur when the adjacent segment of US Highway 19 is elevated, and to better
utilize the potential functional relationship between the properties to be located in
the District and other adjacent properties, it is necessary to construct expensive
water-activity based improvements for which long-term traditional commercial debt
is not readily available. Use of a District will provide this long-term debt. Based on
information provided by the Department of Community Affairs, there are more than
120 active CDDs in Florida. CDDs are an efficient, effective way to provide
infrastructure and have become accepted in the marketplace of homebuyers.
From our perspective, the establishment of a CDD is logical for this project. It is a
long-term, stable, financially-secure entity. The District is a structured, somewhat
formal entity, with the legal ability to respond to future changes in the circumstances
and desires of its residents. Under Florida law, the District has access to the county
tax collection mechanisms which helps ensure that the facilities will be maintained.
In that sense, to us, it is preferable to a property owners' association.
In addition, the CDD has the financial capability to assist in the provision of
_necessary_capital illlProyerne_nts sgoner than might otherwise be the case. The City
of Clearwater, developers, builders and residents will all benefit from these
improvements in terms of access, traffic flow, safety, and general property
enhancement.
42.
Do you have experience in providing notice to property purchasers of special
district assessments in other developments?
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Yes, it is vital to the integrity of the special district process to put property
purchasers on notice of the existence of the district and future special assessments.
I am including copies of a contract and a special notice given each purchaser for
the Clearwater Cay Community Development District as Exhibits "8" and "C" of
my prefiled testimony. The CDD notice provision in the contract is set forth above
the Buyer's signature block on contract as statutorily required.
Page 7 of 8
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43.
Does this conclude your testimony?
Yes.
FURTHER YOUR AFFIANT SAITH NOT. ~~
Fre'd Davis Clark
STATE OF FLORIDA
COUNTY OF ~~<'--'-n?
Sworn to (or affirmed) and subscribed before me this ~ \ day of
M\ J:::} -)~ ,2005, by Mr. Fred Davis Clark.
~"",-,,,~ J), >~~)~
Sign ure of Notary Public
~~fC'<-~ ~ ~C'I ,,)....
Print Notary Name
My Commission Expires: ~ ._~~c:::.,
Commission No.: ~~ ~lrc.r~
~ersonally known, or
o Produced Identification
Type of Identification Produced
AFFIX NOTARY STAMP
~:r......a.....1/;
.~ ...,,~~~~~,~ DEBORAH A. SMITH
l~mc% Notary Public - Slate of Florida
~. . . ~ My Commission Expires Sep 3D, 2005
~~ ?iJF Commission # OD056559
''''.,'If.F.i,'''' Bonded 8y National Notary Assn.
.i oi<'I!'.~-':;~~'~'::~':"L"~"'r"'-C...~i"''''''~ .~.
# 419749 v1
Page 8 of 8
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EXIDBIT "A"
[A history of the Rosen Development Group and Earthmark Companies]
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Earthniark Companies
eEarthM~rk
_ companIes
Page l'of2
HONE I ritE" BOARD I EXECUTIVE l\lIlNACEMEI'lT I HISTORY l OEV.ElCI'!.'J;NTS I ENVIRCNr"mTJU. INrt'IATl'lES I flllANClAL I CONTAct us 'I
Isadore Rosen
Philip Rosen
Michael E. Rosen
EarthMark Companies, a real estate and environmental
development company, is a consolidation of third and fourth
generation real estate and business professionals with more than 200
years of combined successes.
'In 1908, Isadore Rosen arrived from what Is now Lithuania and was
soon laying cobblestone pavers on the streets of lower Manhattan. In
1919, at the age of 23, he started his own masonry contracting
company. Over the years, it grew to become the largest in New York
City.
In 1946, Isadore's SOil, Philip, joined the family business, which
became known as Isadore Rosen and Sons. With Philip et the helm,
the firm expanded its operations to include not only masonry
contracting but also the building of apartment houses for their own
account. Over the years, Isadore Rosen and Sons built over 37,000
residential units.
In 1980, Phnlp's son, Michael, entered the business and soon after
teamed with Dave Clark, creating the Rosen Development Group
(RDG). Under their directIon, the company's emphasis shifted to the
building and development of detached and attached single-family
homes and lots in the New York Metropoflt<:ln area and throughout
Florida. In the mid-90's RDG recognized the importance of
environmental. restoration and protection and joined the fledgling
MItigation Banking Industry with the development of the highly
successful Big Cypress Mitlga,tlon Bank.
To dater the combined companies have built and/or del/eloped more
, than 42,000 residential units, 4,000 single family lots and currently
have over 3,000 homesltes approved for development by EarthMark.
The company's MitIgation Banks, on both the east and west coast of
Florida, have over 1,600 credits. approved for sale and another 2,000
soon to be approved.
The vision, dedication and hard work invested over the last century Is
paying off as we enter the new century and dedication to excellence is
th~ connecting link. The future successes of EarthMark will result from
this family tradition of hard work, proven experience,. formidable
partnering and creative, forward vision.
~
EXHIBIT
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2'
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'"
A
http://ww~l.earthmark.uslhi~tory.htm
1/23/2004
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EartIlln,ark Companies
Page 2 of2
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~';iNt(.~:- i \
~.;':':y "~f
c~},~
~\'\
Dave Clark
12S0D Unlven;lry Dr.. SlIlle 400
F ortl.lYl!lrs. f'L 3391>7
Ph 239-415-67.00 . Fax 239..0115-8211
http://www.earthmark.uslhistory.htm
112312004
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EXHIBIT "B"
[Revised Purchase Contract]
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THE GRAND VENEZIA AT BA YW A TCH, A CONDOMINIUM
RESIDENCE PURCHASE CONTRACT
Purchaser( s)
Purchaser's Marital Status for Title (single. married, husband & wife):
Residence (Unit)#
Purchaser SS # FEI #
Purchaser Address:
Purchaser Phone:
THIS RESIDENCE PURCHASE CONTRACT (this "Contract") is made and entered into on the
date this Contract is signed by Seller "Effective Date," as such term is defined in Section 38 below, by
and between DC703, LLC, a Florida limited liability company, as Developer ("Seller"), and the above
named person(s) ("Purchaser").
WITNESSETH:
Seller agrees to sell and Purchaser agrees to purchase, upon the following terms and conditions,
condominium Unit # (the "Unit") in The Grand Venezia at Baywatch, a Condominium (the
"Condominium"), pursuant to the Declaration of Condominium for The Grand Venezia at Baywatch, a
Condominium, J.:~(;or~e~ i!! ,~~~ ,~~bJi~, ~~l?~~~~, ~f.~.i!!~!!~ ,C,<?UI~t)'" flo,ri~l,i, .9fticia,I, ~,ec{)rds Boo,k 1403~. ,_ ,,' - ,loeleted: to be
Pages 1368-1486. including all amendments and/or restatements recorded thereafter (the "Condominium
Declaration"), for the purchase price and on the other terms and conditions set forth in this Contract. The
Condominium is part of a larger development known as "Clearwater Cay" which is more particularly
described in Exhibit "A" attached to the Declaration of Covenants, Conditions and Restrictions for
Clearwater Cay Community (the "Master Declaration"), and is also subject to the Declaration of
Covenants, Conditions and Restrictions for The Grand Venezia at Baywatch (the "Resort Declaration").
ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING THE
REPRESENTATIONS OF THE DEVELOPER. FOR CORRECT REPRESENTATIONS,
REFERENCE SHOULD BE MADE TO THIS CONTRACT AND THE DOCUMENTS
REQUIRED BY SECTION 718,503, FLORIDA STATUTES, TO BE FURNISHED BY A
DEVELOPER TO A PURCHASER OR LESSEE.
1. PURCHASE PRICE:
The total purchase price ("Purchase Price") for the Unit is $ , and is
exclusive of any closing costs as described in Section 6 hereof and elsewhere herein (collectively, the
"Closing Costs").
Purchaser shall make the following payments:
The Purchase Price is payable in U.S. Dollars as follows:
$
Deposit due upon signing of this Contract by Purchaser (which shall include any
Reservation Deposit previously made by Purchaser);
Purchaser's Initials
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$
The balance of the Purchase Price at the "Closing," as such term is defined in
Section 2 below, by cash, cashier's check or wire transfer of funds (subject to
adjustments and prorations described in this Contract).
Make all deposit checks payable to: Stump, Storey, Callahan, Dietrich & Spears, P.A. Trust Account, and
mail or deliver to 37 N. Orange Avenue, Suite 200, Orlando, Florida, 3280 I; TEL: (407) 425-2571 ; FAX:
(407) 425-0827. Deposit checks are accepted subject to collection.
In addition to the Purchase Price, Purchaser shall also be required to pay the amounts described in
Section 3 and Section 6 below and the amounts referenced on Exhibits "A." "8," and "D" attached hereto
and incorporated herein by this reference.
Seller has retained Stump, Storey, Callahan, Dietrich & Spears, P.A., 37 N. Orange Avenue, Suite
200, Orlando, Florida, 3280 I; TEL: (407) 425-2571; FAX: (407) 425-2571, to act as Escrow Agent (the
"Escrow Agent") as required by Section 718.202, Florida Statutes. Purchaser will be giyen a receipt for
deposits by the Escrow Agent, if requested.
THIS CONTRACT IS NOT CONDITIONED UPON PURCHASER SECURING FINANCING.
2. CLOSING AND POSSESSION DATE:
A. The Closing shall be at the location designated by Seller in written notification to Purchaser.
B. Seller shall deliver possession of the Unit to Purchaser at the Closing.
C. The Closing shall take place on or before
D. Seller, as to the Closing and documents to be delivered at the Closing, will have no obligation
to any third parties (i.e., lenders or title insurance providers) and will be under no obligation to deal with
any person or firm other than Purchaser and Purchaser's attorney.
3. USE OF STUMP, STOREY, CALLAHAN, DIETRICH, & SPEARS, P.A.:
A. Stump, Storey, Callahan, Dietrich & Spears, P.A. ("Stump") shall act as the title insurance
agent and closing agent in connection with this transaction.
B. Seller shall cause Stump to deliver to Purchaser, either ten (10) days prior to the Closing, or at
the Closing, if the Closing takes place within ten (10) days of the execution by Seller of this Contract, a
title insurance commitment issued by Chicago Title Insurance Company (the "Commitment") agreeing to
issue to Purchaser, upon recording of the Deed to Purchaser, an owner's policy of title insurance in the
amount of the Purchase Price, insuring Purchaser's title to the Unit, subject only to the "Permitted
Exceptions," as such term is defined below, provided, however, the Commitment and related owner's
policy of title insurance shall not insure Purchaser's interest in any limited common element(s)
appurtenant to the Unit, if any.
C. If Purchaser notifies Seller J~~!))_~r~_~a_s~~_eIe_c~~ _~<?_~_~y_~ _~~ _<?~~(s_~!!!e_ !~_sura.~~_e _~~~i~~~_t___ _ . _ --, Deleted: less than thirty (30) days prior
and policy provided by an attorney or a title insurance agency other than Stump, Purchaser shall pay to to the Closing
Stump a closing coordination fee an amount equal to FIVE HUNDRED and No/lOO DOLLARS
($500.00) in consideration of administrative expenses incurred by Stump in connection with the
coordination of the closing with Title Agent.
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Purchaser's Initials
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TITLE OBJECTIONS:
Purchaser shall give Seller written notice specifically detailing any title objections (the "Notice of
Objections") upon the earlier of ten (10) days prior to the Closing or ten (10) days after receipt of the
Commitment. If the Notice of Objections is not received by Seller within the time provided, Purchaser
shall be deemed to have waived the right to raise title objections. Seller shall have ninety (90) days from
the date Seller receives the Notice of Objections to correct the title objections raised or to otherwise
respond to Purchaser in the event Seller determines that (a) no title objection exists or (b) Seller cannot, or
elects not to, correct the title objections, in Seller's sole and absolute discretion. If Seller cannot, or elects
not to, cure the title objections raised in the Notice of Objections within the subject ninety (90) day
period, Purchaser shall elect one of the following two options by written notice to Seller within ten (10)
days after delivery to Purchaser of written notice from Seller of Seller's intention not to cure the title
objection:
(a) Purchaser can accept title to the Unit in the condition offered by Seller without reduction
of the Purchase Price, thereby waiving all objections and any claims against Seller with
respect to the objectionable title objection(s); or
(b) Purchaser can cancel this Contract and, in full settlement of all claims against Seller
resulting from this Contract, receive a full refund of the deposit(s) actually paid by
Purchaser. If Purchaser- cancels this Contract and receives a refund of the deposit(s)
actually paid by Purchaser, Purchaser shall not thereafter have any rights to make any
additional claims against Seller and this Contract shall no longer have any force or effect.
In the event Purchaser does not notify Seller in writing within ten (10) days from the
receipt of Seller's notice (time being strictly of the essence) as to which option Purchaser
elects, Purchaser shall be conclusively presumed to have elected the option provided in
this Section 4(b ).
4. CLOSING:
A. Seller shall convey marketable and insurable title to the Unit, but not to any limited common" _n { Formatted: Indent: Left: 0.13"
element(s) appurtenant to the Unit, if any, to Purchaser at the Closing by delivery to Purchaser of a
special warranty deed (the "Deed") describing the Unit. The Deed shall convey title to the Unit to
Purchaser subject to the title exceptions set forth on Exhibit "F" attached hereto (collectively, the
"Permitted ExcePtions").
It is Purchaser's responsibility to review and become familiar with each of the foregoing title
matters, some of which are covenants running with the land.
B. Any matters relating to the Permitted Exceptions omitted from the Deed shall nevertheless be
deemed to be included in the Deed. Purchaser understands and agrees that the terms of the immediately
preceding sentence shall survive the Closing of the transaction contemplated herein. Seller shall deliver
the Deed to Purchaser at the Closing of the transaction contemplated in this Contract, which Deed shall be
tree and clear of all monetary liens and encumbrances, except as otherwise noted herein. The acceptance
of the Deed by Purchaser shall be deemed to be full performance and discharge of every agreement and
obligation on the part of Seller to be performed pursuant to this Contract, except those which are herein
specifically deemed to survive the Closing of the transaction contemplated herein or which may survive
by operation of law (if any).
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Purchaser's Initials
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C. Seller shall provide an affidavit complying with the Foreign Investment in Real Property Tax
Act of 1980, as amended.
5. CLOSING COSTS, OTHER CHARGES AND PRORATIONS (OTHER THAN TITLE
RELATED CHARGES):
Anv and all amounts listed in the condominium documents that vou will pav to the Condominium........ { Formatted: Indent: First line: 0"
Association, Resort Lot Owner, Master Association or CDD are subiect to chane:e in the future. It
is very likelv that chane:es will occur and the amounts will increase, especiallv as a result of the rise
in insurance premiums, and these increases will be bevond the reasonable control of Seller. You are
advised to include the potential increases in these amounts in vour decision to purchase.
L-At the Closing of the transaction contemplated herein, Purchaser agrees to pay to Seller the+' -- --.. { Formatted: Standard_L2
balance of the Purchase Price and any additional amounts Purchaser owes under this Contract by cash,
wire transfer or by cashier's check. Official checks, bank checks andlor personal checks will not be
accepted. PURCHASER UNDERSTANDS AND AGREES THAT IN ADDITION TO THE BALANCE
OF THE PURCHASE PRICE, PURCHASER AGREES TO PAY CERTAIN OTHER FEES AND ( Deleted: without limitation J
"CLOSING COSTS" AT THE CLOSING. These extra charges include, but not limited to. the followin;..
(a) Except as provided in Section 3.A. and Section 3.B. hereof, the premium for a policy of
lender's title insurance, if any; one-time initial capital contribution to the Master
Association; prorated ,!lll)nthl\~ .TIle.nlb.ershiQ. .fee... ~f. th~.. M~~~.r. ~.sso.~t~tj<?~~. ~"l~:~iTIl~......'" Deleted: quanerly
initial capital contribution to the Condominium Association, prorated "110ntl~ly.. ...... Deleted: assessments
maintenance of the Condominium Association (including assessments for the Shared .......
Deleted: quanerly assessment
Facilities Expenses, Basic Resort Services Expenses and Club Lot Facilities Expenses,
which are assessed by Resort Lot Owner, but payable to the Condominium Association);.. _..... { Deleted: prorated monthly Club Fees;
recording fee for certificate of approval; title search fees; settlement fee; signing agent
fee. recording fee for the Deed; documentary stamps for the Deed; and ad valorem real
property taxes, subject to proration in accordance with the terms of Section 6(i) hereof.
(b)
Closing costs associated with the loan, which may vary from lender to lender, and an
estimate of which will be provided by, or on behalf of, the lender to whom Purchaser
submits an application for a loan.
(c) All additional costs respecting the Unit imposed by any governmental authority.
(d) The cost of any obligations Purchaser incurs not provided for in this Contract.
(e) Governmental liens (liens which can be paid pursuant to written notice) which have been
certified as of the date of the Closing, if any, shall be assumed and paid by Seller;
pending and proposed governmental improvement liens, taxes and/or assessments (for
public improvements or otherwise) shall be paid and assumed by Purchaser; provided,
however, to the extent that such items may be paid in installments, Purchaser shall be
responsible for all such installments (or portions thereof) which are attributable to the
date from and after the Closing.
(f) Any other expenses of an owner of real property governed by and subject to the Master
Declaration andlor the Condominium Declaration.
(g) Amounts reflected in Exhibits "A," "8," and "D" attached hereto and incorporated
herein by this reference.
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Purchaser's Initials
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(h)
Current expenses of the Unit (for example: taxes, special assessments and current
monthly assessments to the Master Association and Condominium Association (including
those of the Resort Lot Owner payable to the Condominium Association) will be adjusted
between Seller and Purchaser as of the original Closing date, except for when Seller
requires a delay in the Closing date, in which case the adjustments and prorations will be
as of the new Closing date. Purchaser shall reimburse Seller for any prepaid expenses of
the Unit, such as utility deposits, insurance premiums, local interim service fees, cable
fees, assessments and capital contributions made to the Master Association or
Condominium Association, paid by Seller in advance and/or for the month of the
Closing.
(i)
If the real estate ad valorem property taxes or real estate non-ad valorem special
assessments lawfully levied and imposed by any and all local governments, general
purpose or special purpose, to which the Unit is subject for the year of the Closing are
assessed in the aggregate on the land comprising the portion of Clearwater Cay
Community, including the Unit, rather than on a unit-by-unit basis, Seller will pay such
taxes in full when due, but Purchaser will reimburse Seller at the Closing for Purchaser's
pro rata share of such taxes from the date of the Closing through the end of the then
current tax year (if such taxes are then known) or the Unit's allocable share (so prorated)
of Seller's estimate of those taxes based on the tax bill for the prior year or Seller's
estimate of taxes (if such taxes are not then known), subject to readjustment at either the
request of Seller or Purchaser within six (6) months from when the actual tax bill is
known. If taxes for the year of the Closing are assessed on a unit-by-unit basis but such
taxes are not yet due on the date of the Closing, Purchaser will be responsible for paying
such tax bill in full when due, but Seller will reimburse Purchaser at the Closing for
Seller's pro rata share of such taxes (if the taxes are then known) or Seller's estimate of
those taxes (if such taxes are not then known) through the date of the Closing, subject to
readjustment at either the request of Seller or Purchaser within six (6) months from when
the actual bill is known. If the Closing takes place after Seller has paid the taxes for the
year of the Closing, Purchaser will reimburse Seller at the Closing for Purchaser's pro
rata share of those taxes from the date of the Closing through the end of the current tax
year.
U)
(k)
One-time Initial Contribution to Clearwater Cay Club of .F5,OW.OO-,. __ __ _.... __ __ __ __
A fair and reasonable developer fee in the amount of .
payable to Seller. Purchaser acknowledges that this fee is not for closing services.
Rather it is a fee due to Seller that will result in additional profit to Seller.
6.
TCONSTR lJ.CTI ON:
A. Purchaser acknowledges that Seller has made available to Purchaser in the sales office for the
Condominium plans and specifications for the Unit and the improvements comprising the common
elements of the Condominium (the "Plans and Specifications").
B. Except as provided in Section 21 below, for reasons of safety and of requirements under
policies of insurance held by Seller, neither Purchaser nor any agent of Purchaser shall enter the Unit or
the Condominium until after Purchaser has closed the purchase of the Unit in accordance with the terms
hereof and taken possession of the Unit, whereupon Purchaser's rights shall be as set forth in the
"Condominium Documents," as such term is defined in Section 23 below. Purchaser agrees hereby to
abide by such restriction and not to enter upon, nor interfere in any way with the Seller or any other
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Purchaser's Initials
_.{D~S-~---~
Deleted: one percent (1%) of the
Purchase Price
Deleted: 1
1
Fonnatted: Bullets and Numbering
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portion of the Condominium. Purchaser may not order any work on the Unit until after the Closing, other
. than options or extras that Seller agrees in writing to provide.
7.. ACCEPTANCE OF UNIT: AS IS CONDITION.
Purchaser agrees to accept the Unit in "AS IS" condition.
8. DEFAULT AND REMEDIES:
A. In the event Purchaser fails to close the transaction contemplated herein in the time established,
for reasons other than Seller's default or delay, and Seller agrees to extend the Closing in writing in
accordance with this Section 9.A., Purchaser shall, if Seller is still willing to close, be required to pay
interest on the Purchase Price equal to the highest rate of interest per annum permitted to be charged by
applicable prevailing law (such rate currently being eighteen (18%) percent per annum) from the date on
which the Closing was originally scheduled, to and including the date on which the Closing actually
occurs. Further, all prorations shall be made as of the date Closing was originally scheduled. Nothing in
this Contract, however, shall require Seller to extend the Closing beyond the time set forth in this
Contract or prevent Seller from treating Purchaser as being in default if Purchaser fails to close within
that time, and Seller shall only be deemed to have agreed to extend the Closing if Seller does so in
writing.
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B. Should Purchaser fail to make any of the payments herein above scheduled, or fail or refuse to
execute the instruments required to close the transaction contemplated herein (including failure to
promptly execute and file mortgage loan application documents, and all mortgage loan and real estate
Closing documents and to comply with the requirements of the mortgage lender, including providing any
and all information as requested) or refuse to pay any costs or the sum required by this Contract, or
otherwise defaults hereunder, and shall fail to correct such default within five (5) days after Seller has
given Purchaser a written notice of such default, then Seller may declare this Contract terminated and
retain all deposits paid by Purchaser as liquidated and agreed-upon damages which Seller shall have
sustained and suffered as a result of Purchaser's default, and thereupon the parties hereto will be released
and relieved from all obligations hereunder. These provisions for liquidated and agreed-upon damages
are bona fide provisions for such and are not a penalty, the parties understanding that by reason of the
withdrawal of the Unit from sale to the general public at a time when other parties would be interested in
purchasing the Unit, Seller will have sustained damages if Purchaser defaults, which damages will be
substantial and would be extremely difficult or impossible to determine with mathematical precision.
Therefore, Seller and Purchaser have agreed that, by signing this Contract, the parties acknowledge that
the deposit(s) paid and agreed .to be paid by Purchaser, with all accrued interest thereon, is (are) agreed
upon, after negotiation, as the parties' reasonable estimate of Seller's liquidated damages in the event of a
breach of this Contract by Purchaser.
C. If Seller defaults in the performance of this Contract, nothing contained herein shall be deemed
to restrict Purchaser's remedies if Purchaser shall be entitled to such remedies under applicable law,
including the right to seek specific performance.
9. PROPERTY TAX DISCLOSURE.
Pursuant to Section 689.261, Florida Statutes, Seller is required to provide each prospective
purchaser of residential property within the Community a Property Tax Disclosure Summary at or before such
prospective purchaser executes a Contract to purchase a Home in the Community. The Property Tax Disclosure
Summary for the Community is incorporated into this Contract by this reference. Purchaser should not execute
this Contract until Purchaser has received and read the Property Tax Disclosure Summary. In that regard,
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Purchaser's Initials
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Purchaser acknowledges that Purchaser has received and read the Property Disclosure Summary for the
Community before executing this Contract.
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10. ASSIGNMENT:
This Contract is not assignable by Purchaser, except to Purchaser's spouse, individually or jointly
with Purchaser, Purchaser's family trust, existing or to be created and of which the Purchaser or
Purchaser's spouse is the primary beneficiary, or to any business entity organized under the laws of the
State of Florida or any other state and authorized to do business in the State of Florida in which the
Purchaser or Purchaser's spouse owns at least a fifty percent (50%) controlling interest. A transfer or
conveyance of such controlling interest may, at Seller's election, constitute a material breach of this
Contract by Purchaser. In the event of any other assignment by Purchaser, Seller shall be under no
obligation to complete the transaction contemplated hereby or any portion thereof with said assignee, but
in fact may treat such action by Purchaser as a breach of this Contract. Seller, in Seller's sole and
absolute discretion, may assign its rights under this Contract. If Purchaser dies or in any way loses
control of Purchaser's affairs, this Contract will bind Purchaser's heirs and legal representatives. If
Purchaser has received Seller's written consent to assign or transfer this Contract, then Purchaser's
approved assignees shall be bound by the terms hereof. However, Purchaser shall not be relieved of its
obligations under this Contract.
II. DEPOSITS: ALTERNATIVE ASSURANCES:
All deposits shall be held (subject to the right of Seller to provide "Alternative Assurances" as set
forth below) and disbursed by the Escrow Agent pursuant to the terms of this Contract and the terms of an
Escrow Agreement between Escrow Agent and Seller dated , which Escrow Agreement is
incorporated herein by reference. Deposits by Purchaser comprising the first ten percent (1 0%) of the
aforestated Purchase Price for the Unit may be placed in a non-interest bearing account with a depository
institution. Seller intends to make an "Alternative Assurances" filing with the Division of Florida Land
Sales, Condominiums and Mobile Homes. This filing, upon approval, .will permit Seller to substitute a
Surety Bond for Purchaser's initial ten percent (10%) deposit moneys held by the Escrow Agent,
withdraw such funds from the account maintained by the Escrow Agent into which such funds were
deposited and maintained by the Escrow Agent and to use such funds in accordance with applicable law.
12. CONDITION PRECEDENT:
In the event that Seller has been unable to obtain purchase contracts for eighty percent (80%) of
the units in the Condominium within one hundred eighty (180) days from the date the first purchaser
signs a purchase contract for the purchase of a unit in the Condominium, Seller may unilaterally terminate
this Contract by delivery of written notice to Purchaser and, upon refunding to Purchaser all deposits,
including any interest earned on such deposits, shall have fulfilled all of Seller's obligations to Purchaser
under this Contract. Nothing herein contained shall be construed or so operate in a manner inconsistent
with 24 CFR S171O.5 and 61 F.R. 13601-13611, Supplemental Information to Part 1710; Guidelines for
Exemptions Available Under the Interstate Land Sales Full Disclosure Act, Part IV (b), Paragraph 6.
13. INSULATION:
Pursuant to Title 16, Section 460.16 of the United States Code of Federal Regulations, the
Insulation Disclosure Addendum is attached hereto as Exhibit "E".
- 7 -
Purchaser's Initials
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14. ENERGY PERFORMANCE AND ENERGY EFFICIENCY RATING DISCLOSURE:
Pursuant to Sections 553.9085 and 553.996, Florida Statutes, Purchaser may request that Seller
cause a State Certified Energy Rater to perform an energy efficiency rating on the Unit. Purchaser hereby
releases Seller from any responsibility or liability for the accuracy or level of rating and Purchaser
understands and agrees that this Contract is not contingent upon Purchaser approving the rating, that the
rating is solely for Purchaser's own information and that Purchaser will pay the total cost of obtaining the
rating. A copy of the Florida Building Energy-Efficiency Rating System brochure prepared by the
Florida Department of Community Affairs in accordance with Section 553.996, Florida Statutes, is
attached hereto as Exhibit "C" and incorporated herein by this reference. PURCHASER
ACKNOWLEDGES RECEIPT OF THE ENERGY-EFFICIENCY RATING BROCHURE
DISTRIBUTED BY THE STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS AND
STATES THAT PURCHASER WAIVES THE OPPORTUNITY TO OBTAIN AN ENERGY-
EFFICIENCY RATING ON THE UNIT. Seller is providing this disclosure statement to Purchaser in
compliance with Sections 553.9085 and 553.996, Florida Statutes. This Disclosure Statement is intended
for the sole and exclusive use of Purchaser for the transaction contemplated herein only and Seller shall
not be liable or responsible to any third party who has relied upon the information contained herein.
Purchaser acknowledges its receipt, review and understanding of this disclosure statement prior to, or at
the time of, Purchaser's execution of this Contract.
15. RADON GAS DISCLOSURE:
The following disclosure is required by Section 404.056(5), Florida Statutes (2003), for all
contracts for sale and purchase of any building in Florida: "RADON GAS: Radon is a naturally
occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county health department."
16. MOLD DISCLAIMER:
Whether or not you, as an owner of a Unit, experience mold growth depends largely on how you
manage and maintain your Unit. An informational mold statement is attached hereto as Exhibit "G" and
incorporated herein by this reference. Purchaser, by execution of this Contract, acknowledges that Seller
will not be responsible for any damages caused by mold, including but not limited to, property damage,
personal injury, loss of income, emotional distress, death, loss of use, loss of value, and adverse health
effects.
17. COOPERATING BROKER:
Unless a Cooperating Broker Addendum indicating otherwise is attached hereto, Purchaser
represents to Seller that Purchaser has not consulted, dealt or negotiated with a real estate broker,
salesperson or agent other than Seller's sales personnel. Purchaser agrees that Seller is not responsible for
the payment of a commission to a real estate broker, salesperson or agent other than Seller's sales
personnel and Purchaser agrees to indemnify and hold Seller harmless from and against any and all loss
and liability, including attorneys' and paraprofessional fees and costs at all levels, resulting from or
arising out of any representation or warranty set forth in this Section 18. Purchaser understands and
agrees that this Section 18 shall survive the Closing and delivery of the Deed.
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Purchaser's Initials
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.
.
18. NOTICE:
Whenever a notice is required to be sent under the terms of this Contract, the notice will be
deemed to have been properly given or served (a) when delivered in fact to the other party, (b) when
delivered to and receipted for by a recognized air courier service (i.e., Federal Express, DHL), (c) by
facsimile transmittal when transmitted by a mechanism capable of producing a confirmation of receipt, or
(d) when deposited in the United States with adequate postage prepaid and sent by certified mail, return
receipt requested, and in all events addressed to Purchaser at the address in this Contract and addressed to
Seller at 2704 Via Murano, Clearwater, Florida, 33764. Notice may also be delivered by hand delivery if
a receipt for same is obtained. All notices shall also be effective upon refusal or failure to accept delivery
or otherwise.
19. RISK OF LOSS PRIOR TO CLOSING:
Any loss and/or damage to the Condominium and/or the Unit between the date of this Contract
and the date of the Closing will be at the Seller's sole risk and expense. Seller will have a reasonable time
to complete repairs, but in no event will such time for repairs and subsequent date of the Closing extend
beyond two (2) years after the date Purchaser signed this Contract. The work will be judged by the same
standards used to evaluate new construction. Purchaser will have no right to any reduction in the
Purchase Price, nor any claim against Seller by reason of the loss and/or damage, and agrees to accept
title on the date scheduled for the Closing.
20. INTENTIONALLY OMITTED.,
21. LIMITATIONS OF WARRANTIES:
A. Purchaser shall have the right, pursuant to Section 21 above, to inspect the Unit and the
common elements, if any, prior to the Closing. Purchaser hereby agrees that from and after the Closing,
Purchaser shall not make or bril)g, and shall not support the bringing of such action by others, any claim
or action whatsoever against Seller or Seller's agents with respect to the dimensions of the Unit or the
common elements, the materials employed in the construction of the Unit or the common elements, or the
quality of workmanship or the merchantability or fitness of the Unit or the common elements or fixtures
or items of personal property sold pursuant to this Contract, or the merchantability or fitness thereof,
except such claims or actions as may be permitted by Section 22.B. below.
B. Purchaser acknowledges that at the time of execution of this Contract, Seller has no reason to
know of any particular purpose of Purchaser in purchasing the Unit and items of personal property sold
pursuant to this Contract other than for normal residential use. Purchaser acknowledges and agrees that
the only warranties applicable to the Condominium and the Unit are those that may validly be imposed
thereon by statutory law on the date thereof, as set forth in Section 718.203, Florida Statutes, as such
section exists as of the date of this Contract (hereinafter referred to as "Sole Warranties"). Purchaser
further acknowledges and agrees that, to the extent allowed by law, Seller makes no other express or
implied warranties whatsoever in regard to the Unit, the common elements, any fixtures or items of
personal property sold pursuant to this Contract or any other real or personal property whatsoever sold
hereby.
C. SELLER MAKES THIS WARRANTY EXPRESSLY IN LIEU OF ALL OTHER EXPRESS
OR IMPLIED WARRANTIES CONCERNING THE UNIT SOLD OR TO BE CONSTRUCTED
HEREUNDER AND .THE PROPERTY SOLD HEREUNDER OR PREVIOUSLY PURCHASED
FROM SELLER. ANY OTHER REPRESENTATIONS, STATEMENTS OR PROMISES MADE BY
ANY PERSON ARE UNAUTHORIZED AND ARE NOT BINDING UPON SELLER. ALL OTHER
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Purchaser's Initials
.
WARRANTIES WITH RESPECT TO THE UNIT, AND THE PROPERTY HEREUNDER ARE
HEREBY DISCLAIMED, TO THE EXTENT PERMITTED BY LAW, WHETHER IMPLIED OR
ARISING BY OPERATION OF LAW, COURSE OF DEALING, CUSTOM AND PRACTICE, OR
OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF HABITABILITY,
MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE; AND PURCHASER
REPRESENTS THAT PURCHASER HAS READ AND UNDERSTOOD THIS PROVISION, AND
THAT PURCHASER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS
CONTRACT AND ACCEPTING THE BENEFITS OF THE LIMITED WARRANTY DESCRIBED
ABOVE, PURCHASER HAS KNOWINGLY RELINQUISHED ANY AND ALL OTHER
WARRANTIES OF ANY KIND OR NATURE REGARDING THE UNIT AND THE PROPERTY.
D. Notwithstanding anything to the contrary in this Contract, Purchaser acknowledges and agrees
that Seller shall be irreparably harmed if Purchaser undertakes the repair or replacement of any defective
portion of the Unit, common elements, fixtures, items of personal property or any other real or personal
property in connection with the Unit during the time in which the Sole Warranties remain in effect.
Accordingly, Purchaser hereby agrees: (i) to promptly, upon Purchaser's knowledge of the existence of
any such defective portion, provide written notice to Seller specifying each such defective portion, upon
the receipt of which Seller shall have sixty (60) days (hereinafter referred to as "Repair Period") to
commence to repair or replace such defective portion and diligently pursue the completion thereof; or (ii)
not to repair, replace or otherwise adjust any such defective portion during the Repair Period; provided,
however, that if Seller fails to commence the repair or replacement of such defective portion within the
Repair Period, Purchaser may repair or replace same. If Purchaser fails to comply with the provisions of
this Section 22.D.,Purchaser will be deemed to have breached Purchaser's obligation to mitigate damages
and Purchaser's conduct shall constitute an aggravation of damages.
E. It is hereby agreed that the maximum liability of Seller under the Sole Warranties shall be the
replacement cost of the defective portion of the Unit, common elements, fixtures, items of personal
property or to the real or personal property. Seller shall have the sole right to determine whether the
defect shall be corrected by repair or replacement. In addition, at Seller's sole option, rather than
repairing or replacing the defective item, Seller may pay Purchaser the amount by which the value of the
Unit has decreased as a result of such defect. In no event shall Seller be liable to Purchaser, the Master
Association or the Condominium Association or any other person or entity for consequential or
exemplary damages, or for personal injuries arising from any breach of the Sole Warranties.
.
F. Purchaser hereby acknowledges that: (i) the Sole Warranties shall not apply if the defective
portion of the Unit, common elements, fixtures or any other real or personal property has resulted from or
been caused by, in whole or in part, the misuse of same (whether intentional or unintentional) by any
person, firm or entity other than Seller or from an accident, casualty or physical alteration or
modification; and (ii) the Sole Warranties are further conditioned upon routine maintenance being
performed unless such maintenance is an obligation of Seller or a Seller controlled condominium
association.
G. The provisions of this Section 21 shall survive the Closing and delivery of the Deed.
22. PROSPECTUS:
The documents required by Section 718.504, Florida Statutes (2003), to be provided by Seller to
Purchaser are defined as the prospectus together with all exhibits thereto (sometimes referred to herein
collectively as the "Condominium Documents"). Purchaser hereby acknowledges receipt of the Condominium
Documents. Seller and Purchaser acknowledge that separate and apart from the provisions of this paragraph,
Seller is obligated to obtain from Purchaser a Receipt for Condominium Documents (in accordance with Florida
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Purchaser's Initials
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administrative rules) acknowledging receipt of the required Condominium Documents, and Purchaser agrees to
. provide such Receipt upon delivery of such documents.
23. TIME:
Time is of the essence for making all payments due pursuant to this Contract and for the Closing
of this Contract. Time otherwise may be made of the essence by not less than five (5) days advance
written notice. Any time period measured in "days" means consecutive calendar days, except that the
expiration of any time period measured in days that expires on a Saturday, Sunday, or nationally observed
legal holiday automatically will be extended to the next day that is not a Saturday, Sunday, or nationally
observed holiday.
24. INTENTIONALLY OMITTED.
25. CONSTRUCTION FINANCING:
Purchaser acknowledges that notices of commencement may be filed of record and that the Unit
may be encumbered by mortgages at the time of the Closing, and agrees that the same shall not be an
objection to title, it being understood that the Unit will be released from the liens of such notices and such
mortgages at or prior to the Closing utilizing the proceeds of the Closing. Purchaser further
acknowledges and agrees that to the extent permitted under applicable law (including, without limitation,
Chapter 718 of the Florida Statutes), the lien of any mortgagees) granted by Seller to its lender(s)
(whether or not such loans are made for the purpose of construction financing) on the Unit or the
Condominium shall be superior in right and priority to any lien of Purchaser as vendee or otherwise
(which, in the event of such lien, shall be subordinate to those of anyone holding a mortgage that secures
the advancement of construction funds, even if the mortgage (or modifications) are made or recorded after
the date of this Contract) and that this provision shall be self-operating, not require execution and delivery
of additional documents and be for the benefit of Seller and any such lenders; provided, however, this
provision shall not affect Seller's obligation to obtain release of such mortgagees) at the Closing with
respect to the Unit.
.
26. MULTIPLE PURCHASERS:
If two (2) or more persons are named as Purchaser herein, anyone (I) of them is authorized to act
as agent for, with the right to bind, the other(s) in all matters and of every kind and nature with respect to
this Contract. If the Purchaser is married, and the Purchaser's spouse is not named as a Purchaser herein,
Purchaser shall be responsible and liable for such spouse executing the mortgage and other Closing
documents as required by lender and Seller. Failure of said spouse to do so shall constitute a default
hereunder by Purchaser.
27. SELLER'S BUSINESS ORGANIZATION:
Purchaser hereby expressly acknowledges and agrees that (a) a conversion by Seller of its form of
business organization, (b) a merger by Seller with any entity(ies) with the Seller being the surviving entity
of such merger, or (c) change of Seller's name or any or all of the above in combination, shall not be
deemed to be a material or adverse change.
28. MISCELLANEOUS PROVISIONS:
A. Entire Agreement: This Contract, together with all exhibits, constitutes the entire agreement
between Purchaser and Seller with respect to the transaction contemplated herein. All prior
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Purchaser's Initials
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.
.
.
understandings are superseded by and merged into this Contract. Except as provided in Section 718.506,
Florida Statutes, no oral representations, advertising, promotional activities, maps, artists' renderings,
conceptual presentations or otherwise, made by Seller or Seller's agents shall in any way be binding on
Seller and will be of no force or effect unless expressly set forth in this Contract as to either the
Condominium property or the Unit including, without limitation, the workmanship and materials.
Purchaser represents that Purchaser has not relied on any verbal or written statements, published by or
under the authority of Seller in any advertising or promotional matter including, but not limited to,
brochures, newspapers, and radio or television advertising, but has based Purchaser's decision to purchase
on personal investigation, observation and review of the Condominium Documents. This paragraph shall
survive the Closing contemplated herein and the delivery of the Deed to Purchaser.
B. Contract not Recordable: No Lien Rights: Persons Bound: and Notice: Neither this Contract
nor any notice of it shall be recorded in any Public Records; to do so is a substantive breach of this
Contract. Execution of this Contract shall not create any lien or lien right in favor of Purchaser against
the Unit or the Condominium, Purchaser hereby expressly waiving and relinquishing any such lien or lien
rights. This Contract shall bind and inure to the benefit of the parties hereto and their successors in
interest, heirs and assigns: Notice given by or to the attorney for either party shall be as effective as if
given by or to that party.
C. Invaliditv: In case anyone or more of the provisions contained in this Contract shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, the invalidity, illegality, or
unenforceability shall not affect any other provision, and this Contract shall be construed as if such
invalid, illegal or unenforceable provision had never been contained in this Contract.
D. Applicable Law: This Contract and all documents executed pursuant to it shall be interpreted,
construed, applied, and enforced in accordance with and governed by the laws of the State of Florida,
regardless of where executed, delivered, performable or breached, or the venue of any suit or other
proceeding involving this Contract is instituted or pending, or whether the laws of the State of Florida
otherwise would apply the laws of another jurisdiction.
E. Attornevs' Fees and Costs: In connection with any alternative disp.ute resolution proceedings
or litigation, including appellate proceedings, arising out of this Contract, the prevailing party shall be
entitled to recover from the other party reasonable attorneys' fees and costs at trial, bankruptcy court and
all appellate levels.
F. Captions: Captions of the paragraphs and subparagraphs of this Contract are for the
convenience of reference only, are not to be considered a part hereof and will not limit nor otherwise
affect any of the terms hereof.
G. Amendments: This Contract and the instruments and documents referred to herein and made a
part hereof as if fully set forth herein constitute the full, final and complete agreement between the parties
and no oral representations, claims, statements, advertising, or promotional activities made by Seller or
Seller's agents or representatives shall in any way be binding upon Seller unless expressly set forth in a
written agreement addendum executed by Seller. Seller reserves the right to modify or amend the
Condominium Documents and Purchaser shall receive a copy of any such amendment(s) made. Nothing
contained herein'shall require Seller to secure Purchaser's approval of any change in the prices or terms
upon which Seller may sell the remaining units. Without limiting the generality of the foregoing and
other provisions of this Contract, Seller is specifically authorized to substitute the final legal descriptions,
plot plans, and as-built surveys for the proposed legal descriptions and plot plans contained in the
Condominium Documents even though changes occur in the permitting stage and during construction.
Purchaser specifically grants authority to Seller to file in the Public Records of Pinellas County, Florida
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Purchaser's Initials
<-
.
BEFORE THE CITY COUNCIL
OF THE CITY OF CLEARWATER, FLORIDA
IN RE: PROPOSED ORDINANCE PURSUANT )
TO SECTION 190.005(2), FLORIDA STATUTES, )
TO ESTABLISH THE CLEARWATER CAY )
COMMUNITY DEVELOPMENT DISTRICT )
)
TESTIMONY OF T. Gardner Bavless III, P.E.
FOR CLEARWATER CAY COMMUNITY DEVELOPMENT DISTRICT
1. Please state your name and business address.
My name is T. Gardner Bayless III and my business address is 5300 West
Cypress, Suite 200, Tampa, Florida 33607.
2. By whom are you employed and in what capacity?
I am employed by PBS&J as a Professional Engineer.
3.
How long have you been a Professional Engineer?
.
I have been a Professional Engineer since February 1990.
4.
Please describe your duties as a Professional Engineer and with
PBS&J.
I am the Project Manager and Engineer of Record I have been in charge
of various residential and commercial projects, including the
redevelopment project within the proposed Clearwater Cay Community
Development District. In this role, I have managed a variety of
development projects from less than an acre to more than 100 acres in
size. In addition, I have managed design and permitting of many
municipal projects. As a Project Manager, I have been responsible for
developing cost estimates and budgets for owner financing and municipal
bond issues.
5. Please give your educational background, with degrees earned,
major areas of study and institutions attended.
I obtained a Bachelor's degree in Civil Engineering from the University of
South Florida in 1984 and a Master's degree in Civil Engineering in 1991.
6.
Do you have any professional licenses, registrations, or
certifications?
.
..
.
Yes. I am a practicing Registered Professional Engineer, Florida # 42471.
7.
Are you a member of any professional associations?
Yes, the National Society of Professional Engineers, The Florida
Engineering Society, The American Society of Civil Engineers and the
American Public Works Association.
8. Please summarize your previous experience as it relates to public
facility design and construction.
I have extensive experience in the design of roadways, related stormwater
management systems, sanitary sewer collection, and transmission
systems, potable water, reuse water systems (treated effluent) and similar
systems associated with public infrastructure design and construction I
have designed or supervised the design and permitting of many such
systems along the West Coast of Florida.
9.
Have you been involved in any developments of the type and nature
contemplated within the Clearwater Cay Community Development
District (the "District")?
.
Yes. I have been involved in several developments which contain similar
necessary public infrastructure facilities utilizing my expertise in the
design, permitting and construction of similar systems.
10.
Are you familiar with the Petition filed by DC703, LLC for the
establishment of the Clearwater Cay Community Development
District?
Yes, I am. My firm assisted the Petitioner with the preparation of cost
estimates and exhibits used in the Petition.
11. Are you generally familiar with the geographical area, type, and
scope of development and the available services and facilities in the
vicinity of the proposed District?
Yes, I am. My firm has been involved with the proposed CDD
development during which time I have made several field visits to the site
and have evaluated the portions of the infrastructure systems (Le., roads,
surface water, water and sewer systems).
12. Did you prepare or have others prepare under your supervision, any
of the exhibits attached to the Petition?
Yes, I did.
.
...
.
13. Which exhibits did you prepare or have others prepare under your
supervision?
Exhibits A, B, E, F, portions of Exhibit H and the detail costs that were the
basis for the exhibits attached to the Petition were prepared by my firm.
14. Do any of those exhibits require any change or correction? If so,
please specify the exhibit number, and the page and line number of
the change or correction?
Not to my knowledge.
15. Are Exhibits A, B, E, F and H to the Petition true and correct?
As they have been supplemented or substituted in the Petition as
previously described, they are to the best of my knowledge and belief true
and correct.
16. In general, what does Exhibits A, B, E, F and H to the Petition
demonstrate?
.
Exhibit A - is a Clearwater Cay Community Development District Survey.
Exhibit B - is a legal description of the land comprising the Clearwater
Cay Community Development District.
Exhibit E - are maps showing current major trunk water mains, sewer
interceptors and outfalls.
Exhibit F - is the Clearwater Cay Community Development District
Preliminary Infrastructure Cost Opinion.
Exhibit H - are maps (including Aerial, Water Park, Overall Master Plan,
Site Plan, Future Land Use, Zoning and narrative (by others))
17.
What capital facilities are presently expected to be provided by the
District?
.
I presently expect the District to provide facilities and services which
include roadways, streets and associated surface water management
facilities, utilities, landscaping and entry features, and parking and
recreational facilities. A variety of recreational and waterfront
improvements will be constructed that include tennis/volleyball courts, a
water park, waterfront theater, fountains, flower garden, docks, wharfs and
promenades, bridges, pools, a gazebo, and landscaping. The road and
utilities are part of an access system to and through the District's land.
Landscaping improvements to the roadways are proposed to visually
~
.
integrate the constructed systems with the District's unique physical
features.
18.
In your professional opinion, are the construction cost estimates for
the proposed facilities for the District reasonable?
Yes.
19. Based upon your training and experience as a professional engineer,
do you have an opinion as to whether the proposed District is of
sufficient size, sufficient compactness, and sufficient contiguity to
be developable as a functional interrelated community?
Yes. The proposed District is of sufficient size, compactness and
contiguity to be developed as a functional interrelated community.
20. What is the basis for your opinion?
The District has an identifiable need for specific public infrastructure
improvements. The planned infrastructure is an interconnected segment
of the regions services (roads and utilities), which combine to create a
contiguous, homogenous and effevtive method of providing access and
services to the lands within the District.
.
21. Do you have an opinion as a professional engineer as to whether the
services and facilities to be provided by the proposed District will be
compatible with the capacities and uses of existing local and
regional community facilities and services?
Yes. It is my opinion that the services and facilities to be provided by the
District are compatible with the capacities and uses of existing local and
regional community facilities, and with those proposed to be provided by
the District.
22. What is the basis for your opinion?
It is my opinion that the services and facilities to be provided by the
proposed District are not currently provided. Furthermore, the services
and facilities to be provided by the proposed District will not be duplicative.
The District has specific infrastructure needs and the planned services
and facilities primarily provide for new development within the District and
will not be duplicative or inefficient.
.
.. $ ,
.
.
.
23. As a professional engineer, do you have an opinion as to whether
the proposed District is among the best alternatives to provide
community development services and facilities to the areas that will
be served?
Yes, I do.
24. What is your opinion?
The community development district approach is among the best
alternatives for providing necessary community development services and
facilities to the area to be served within the proposed district.
25. What is the basis for your opinion?
The District may contract for professional technical staff capable of
overseeing the design, permitting and construction of necessary capital
improvements for development of the area.
26. Does that conclude your testimony?
Yes.
FURTHER YOUR AFFIANT SAITH NOT.
~~ g~l',
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STATE OF FLO,DA I
COUNTY OF -///.j!J~RolJj 11
Sworn to (or affirmed) and
...s~Y"*"..q pc/" ,2005, by Mr.
,
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sub . ed b re me this I day of
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Signature of Notary Public
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Print Notary Name
My Commission Expires: / /- / J - ()g
Commission No.: ])i)3f;3~ '7 /
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.
prior to Closing, all papers required to be filed by Florida Statutes in order to legally create and maintain
the existence of the Condominium, the Condominium Association, including, but not limited to, the
Declaration, the Articles ofIncorporation and Bylaws of the Association. This Section 29.G. will survive
Closing and delivery of the Deed.
H. Indemnification: "Indemnify" means that the indemnitor will defend, indemnify and hold the
indemnitee harmless from and against any and all claims, demands, losses, liabilities including strict
liability, damages, injuries, and expenses, including attorneys' fees for attorneys of the indemnitee's
choice, costs of any settlement or judgment and claims of any and every kind whatsoever paid, incurred
or suffered by, or asserted against the indemnitee by any person or entity or governmental agency for,
with respect to, or as a direct result of the subject matter of the indemnity. The scope of any indemnity
includes any costs and expenses, including reasonable attorneys' fees incurred in defending any
indemnified claim or in enforcing the indemnity or both. Any express indemnities contained in this
Contract survive the Closing of the transaction contemplated herein.
I. Venue: Purchaser waives any and all privileges and rights which it may have under Chapter
47, Florida Statutes, relating to venue, as it now exists or may hereafter be amended, and any comparable
statute or administrative provision; and Purchaser further agrees that any legal action brought on this
Contract shall be brought in the appropriate forum in PinellasCounty, Florida.
1. No Liens: Prior to the Closing, Purchaser shall not place nor allow any lien to be placed on the
Unit and/or the Condominium.
K. Waiver: The waiver of one or more defaults by any party to this Contract shall not be deemed a
waiver of any subsequent default of that provision of this Contract or default under any other provision of
this Contract. No waiver of the benefit of any provision of this Contract will be effective unless made in
writing, signed by the party to be charged; and no such waiver is a waiver of any future event, unless it
expressly so states.
L. Sales Activities: Purchaser acknowledges that Seller or a company or other entity affiliated
with Seller (including Resort Lot Owner) shall have the right to utilize all of the common elements of the
Condominium, all Master Association property (including roadways and recreational facilities), and all
Shared Facilities, and any models and/or sales office located or to be located in Clearwater Cay
Community, and/or the Condominium in connection with the sale or lease of dwelling units in this or in
other projects or developments in the Clearwater Cay Community.
M. Payment by Broker: By the execution hereof, Purchaser directs Broker to pay to Seller all
monies received under this Contract by Broker prior to or at the Closing.
N. Purchaser Representations: Purchaser acknowledges and agrees that the representations made
to Seller hereunder are a material inducement to Seller to enter into this Contract and that such
representations shall survive the Closing.
O. Counterparts: This Contract may be executed in two or more counterparts, each of which will
be deemed an original, but all of which together will constitute one and the same instrument.
P. Gender: The use of the singular includes the plural, the use of the male includes female and
neuter and visa versa.
Q. Facsimile: A facsimile (FAX) signature will be deemed to be an original. Offer and
acceptance by facsimile is binding.
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Purchaser's Initials
.
R. Construction: This Contract and all related documents, including, without limitation, the Deed,
will not be construed more strongly against any party regardless of who was more responsible for its
preparation.
S. Survival: All terms, conditions, covenants and agreements contained in this Contract, if the
fulfillment of their purpose(s) require(s), shall survive the Closing and be binding on Seller and Purchaser
and any subsequent purchaser of the Unit.
T. Conflict Regarding Unit Configuration. Size and Layout: In the event that the configuration,
size or layout of the Unit as depicted on any sales materials or brochures differs from or conflicts with the
configuration, size or layout of the Unit as depicted on the Condominium Documents, the configuration,
size and layout of the Unit as depicted on the Condominium Documents shall control.
U. Effective Date: As used herein, the term "Effective Date" shall mean and refer to the date this
Contract is executed by Seller.
W. Joint and Several Liability: If more than one person or entity constitutes "Purchaser", then in such
case all obligations of Purchaser under this Contract shall be joint and several obligations of each person or entity
constituting Purchaser.
X. Amendments Required by Division: If the Florida Division of Land Sales, Mobile Homes and
Condominiums requires any amendment to this Contract, or in an amendment is required to comply with the
applicable law, Purchaser hereby consents to such amendment.
29. INTENTIONALLY OMMITTED.
30. MASTER ASSOCIATION AND CONDOMINIUM ASSOCIATION:
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By purchasing the Condominium, Purchaser automatically becomes a member of the Master
Association and the Condominium Association. The Master Association is responsible for the common
areas of the Clearwater Cay Community. For further information regarding common areas of the
Clearwater Cay Community, Purchaser should refer to the text of the Master Declaration. For further
information regarding the common areas of the Condominium, Purchaser should refer to the
Condominium Declaration. Purchaser acknowledges and understands that Purchaser will be required to
pay assessments to the associations described above, and that in the event Purchaser defaults in payment
of the assessments, such entity will have a lien on Purchaser's Unit, which lien may be foreclosed in the
manner prescribed by law for the foreclosure of mortgages. The Homeowners' Association Disclosure
Form required by Section 720.401, Florida Statutes, to be executed by Purchaser is attached hereto as
Exhibit "0" and incorporated herein by this reference. PURCHASER SHOULD NOT EXECUTE THIS
CONTRACT UNTIL PURCHASER HAS RECEIVED AND READ THE DISCLOSURE SUMMARY.
Pursuant to Section 720.401 (I )(b), Florida Statutes, the following disclosure is hereby provided:
IF THE DISCLOSURE SUMMARY REQUIRED BY SECTION 720.401, FLORIDA STATUTES,
HAS NOT BEEN PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE EXECUTING
THIS CONTRACT FOR SALE, THIS CONTRACT IS VOIDABLE BY PURCHASER BY
DELIVERING TO SELLER OR SELLER'S AGENT OR REPRESENTATIVE WRITTEN
NOTICE OF THE PURCHASER'S INTENTION TO CANCEL WITHIN 3 DAYS AFTER
RECEIPT OF THE DISCLOSURE SUMMARY OR PRIOR TO CLOSING, WHICHEVER
OCCURS FIRST. ANY PURPORTED WAIVER OF THIS VOIDABILITY RIGHT HAS NO
EFFECT. PURCHASER'S RIGHT TO VOID THIS CONTRACT SHALL TERMINATE AT
CLOSING.
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Purchaser's Initials
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This provision shall survive the Closing and the execution and delivery of the Deed.
3\. CLEARWATER CAY CLUB
In addition to membership within the Master Association and the Condominium Association,
each Unit has a mandatory membership in the Clearwater Cay Club, which is a non-equity membership
deposit club ("Club") pursuant to the Plan for the Offering of Memberships in Clearwater Cay Club
("Club Plan"). The Club Plan outlines the terms pursuant to which the Master Association may purchase
the Club and how Club Dues and Fees increase. At this time the Club Owner is CC701, LLC, a Florida
limited liability company. Purchaser is further advised as folIows:
31.1 Club Owner has constructed or will construct, at its sole cost and expense, certain
recreation facilities as described in the Club Plan together with such other equipment, facilities and
personalty as Club Owner determines in its sole discretion.
31.2 Club Facilities (as defined in the Club Plan) may be added, modified or deleted
from time to time in accordance with the Club Plan.
31.3 The Club shalI be used and enjoyed by the Purchaser, on a non-exclusive basis, in
cOlnmon with such other persons, entities, and corporations that may be entitled to use the Club under the
terms in the Club Plan. The number of users or members of the Club may be increased from time to time.
31.4 Purchaser acknowledges that the Club Plan provides that each Purchaser becomes
directly liable for the Club Dues, including the Club Fees and initial Club contribution to be paid to the
Club Owner, all as set forth in the Club Plan. Purchaser acknowledges receipt of the Estimated Annual
Operating Budget attached as Exhibit "3" to the Prospectus, which specificalIy discloses the initial Club
contribution. Purchaser acknowledges that alI sums due pursuant to the Club Plan in regard to the Club
are direct obligations of Purchaser.
31.5 By accepting a Deed to a Unit, Purchaser acknowledges that: (i) it is in the best
interest of Purchaser, Master Association, Condominium Association and Clearwater Cay Community, as
a whole, and property values therein, to provide for the Club to be located within Clearwater Cay
Community; (ii) the terms of the Club Plan relating to the Club and the Club Dues imposed thereby,
including the Club Fees and Dues, are fair and reasonable given the nature of the Club amenities provided
and the cost thereof; (iii) there were significant other housing opportunities available to the Purchaser in
the general location of Clearwater Cay Community, both with and without a Club; (iv) the Club, and the
right to use the Club were, for purposes of this acknowledgment, important to the Purchaser and
Purchaser would not have purchased the Unit without the right to use the Club; (v) full disclosure of the
nature of the Club and obligations associated therewith was included in the Club Plan given to Purchaser
prior to Purchaser executing the Contract; (vi) the fact that the Club Owner is affiliated with the Seller, is
acknowledged; (vii) the provisions of the Club Plan do not grant any ownership rights in the Club in favor
of the Master Association, the Resort Lot Owner, the Condominium Association or Purchaser but, rather,
grant a non-exclusive license to use the Club subject to full compliance with alI obligations imposed on
each of them relating thereto; and (viii) the Club Plan may be amended or modified from time to time.
31.6 By initialing at the end of this page, Purchaser acknowledges that Purchaser must
apply for membership and must be accepted as a member of the Club prior to the date of Closing.
Purchaser will accept alI liabilities and obligations of membership in the Club, including payment of the
membership contribution, and all fees and dues due to the Club pursuant to the Club Plan. Purchaser
further acknowledges and agrees that the current Club Plan may be revised from time to time.
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Purchaser's Initials
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31.7 Purchaser may, at Purchaser's option, apply for use of a dock slip in accordance
with the Club Plan. Purchaser acknowledges that Purchaser's acceptance to membership in the Club or
use of a dock slip is not guaranteed by this Contract and is subject to Purchaser's separate applications to
the Club and acceptance under established membership procedures and criteria. Purchaser acknowledges
that, by purchasing or paying for the Unit, or by acquiring membership in the Association, Purchaser does
not acquire any vested right or easement, prescriptive or otherwise, to use the Club facilities or the dock
slips, nor does Purchaser acquire any ownership or membership interest in the Club facilities or the dock
slips. Membership fees and dues for the Club and use of the dock slips are separate from and in addition
to any sums due under this Contract and are the responsibility of Purchaser. Purchaser acknowledges that
no representations have been made to Purchaser regarding the use of the Club facilities or the dock slips,
now or in the future. Notwithstanding anything contrary in this Contract or any Addendum thereto, Seller
agrees that if Purchaser's application to the Club is refused for any reason whatsoever, other than
Purchaser's misleading or false statements on his/her Club application, all Deposits hereunder shall be
promptly returned to Purchaser.
32. RESORT LOT OWNER:
By purchasing the Condominium, Purchaser acknowledges that many, if not all of the areas of the
Building which would normally be considered common elements in a traditional condominium, e.g.,
hallways, stairs, parking areas, are instead part of the Resort Lot (and not part of the Condominium) and
are "Shared Facilities". The Resort Lot Owner has the maintenance responsibility for the Shared
Facilities pursuant to the Resort Declaration, and Resort Lot Owner will charge Purchaser and the other
Unit Owners for the maintenance of the Shared Facilities. Additionally, Resort Lot Owner, or its assignee
or designee, may provide certain Basic Resort Services upon the Shared Facilities and to the Unit Owners.
Resort Lot Owner will charge assessments to Purchaser for such Shared Facilities Expenses and Basic
Resort Services. Failure of Purchaser to pay such assessments when due may result in Resort Lot Owner
levying fines against Purchaser and Resort Lot Owner will have a lien on Purchaser's Unit for such
assessments, which lien may be foreclosed in the manner prescribed by law for the foreclosure of
mortgages.
33. CONSTRUCTION INDUSTRIES RECOVERY FUND:
Pursuant to Section 489.1425 of the Florida Statutes, Seller provides the following notice.
PAYMENT MAY BE AVAILABLE FROM THE CONSTRUCTION INDUSTRIES RECOVERY
FUND IF YOU LOSE MONEY ON A PROJECT PERFORMED UNDER CONTRACT, WHERE THE
LOSS RESULTS FROM SPECIFIED VIOLATIONS OF FLORIDA LAW BY A STATE LICENSED
CONTRACTOR. FOR INFORMATION ABOUT THE RECOVERY FUND AND FILING A CLAIM,
CONTACT THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD AT THE
FOLLOWING TELEPHONE NUMBER AND ADDRESS: (904) 727-6530, 7960 ARLINGTON
EXPRESSWAY, SUITE 300, JACKSONVILLE, FLORIDA 32211.
34. INCENTIVE PROGRAMS:
Purchaser acknowledges that at various times, Seller or its affiliates adopts incentive programs
with its affiliated brokerage entity, Cristal Clear Realty, LLC, under which the agents of such affiliated
brokerage entity receive bonuses in addition to commissions for sales of lots or single family residences
constructed by Seller or its affiliates or for sales of residences in condominiums constructed and/or
developed by Seller or its affiliates, which may include the Unit.
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Purchaser's Initials
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35. NO REPRESENTATIONS; NO RELIANCE:
Other than as expressly set forth below, no person, including any sales agent of Cristal Clear
Realty, LLC or any other real estate brokerage firm, is authorized to make any representations or to
provide any information with regard to any of the matters contained in this Contract, which are contrary
to or in addition to the information contained in this Contract or in the applicable or related Condominium
Declaration, as amended. PURCHASER ACKNOWLEDGES, REPRESENTS AND WARRANTS TO
SELLER THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH BELOW, NO SUCH
REPRESENTATIONS HAVE BEEN MADE TO (OR, IF MADE, HAVE NOT BEEN RELIED UPON
BY) PURCHASER OR BY ANY OTHER PERSON OR ENTITY AND FURTHER THAT
PURCHASER HAS NOT RELIED ON ANY REPRESENTATIONS, NEWSPAPER, RADIO OR
TELEVISION ADVERTISEMENTS, WARRANTIES, STATEMENTS, OR ESTIMATES OF ANY
NATURE WHATSOEVER, WHETHER WRITTEN OR ORAL, MADE BY SELLER, SALES
PERSONS, AGENTS, OFFICERS, EMPLOYEES, COOPERATING BROKERS (IF ANY) OR
OTHERWISE EXCEPT AS HEREIN AND IN THE CONDOMINIUM DOCUMENTS SPECIFICALLY
SET FORTH. PURCHASER HAS BASED PURCHASER'S DECISION TO PURCHASE THE UNIT
SOLELY ON THE REPRESENTATIONS DESCRIBED BELOW, IF ANY, PERSONAL
INVESTIGATION, OBSERVATION AND THE CONDOMINIUM DOCUMENTS, THE MASTER
DOCUMENTS AND THE CLUB PLAN. . Purchaser is relying upon the following additional
representations that have been made to Purchaser by Seller and/or its agents concerning the Unit, the
Condominium and Clearwater Cay Community within which the Condominium is located:
PURCHASER'S INITIALS:
Purchaser's representation and warranty above that it has not received or relied upon any other
representations with respect to the Unit, the Condominium or Clearwater Cay Community within which
the Condominium is located, other than as expressly set forth above, is a material inducement for Seller's
acceptance of Purchaser's offer contained herein and such representation and warranty constitutes a
substantial aspect of the consideration delivered to Seller by Purchaser for the purchase of the Unit.
36.
SELLER'S RIGHT TO RE-PLA TOR RE-CONFIGURE UNITS:
Prior to the recording of the Condominium Declaration, Seller reserves the right to unilaterally
amend the plan of development, re-plat or re-plan portions of the Condominium, so long as such
amendment, re-platting, or re-configuring does not materially and adversely affect the Unit or Purchaser.
If Seller shall request that Purchaser join in any documents necessary to carry out the intent of this
Section 36, Purchaser will promptly execute and deliver such consents and joinders in such form as Seller
reasonably requires. The provisions of this Section 36 shall survive the Closing.
37. ACCEPTANCE:
This Contract, as executed by Purchaser and delivered to Seller, together with the delivery of the
Initial Deposit to the Escrow Agent, constitutes Purchaser's offer to purchase the Unit. Purchaser's offer
shall only be accepted by Seller's execution of this Contract. Purchaser must sign and deliver this
Contract to Seller, and pay the Initial Deposit to the Escrow Agent, all on or before the _ day of
'-'
38. ADDENDUM OR RIDER:
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Purchaser's Initials
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Any rider or addendum to this Contract will be deemed to be incorporated into this Contract as
fully as if it were set forth at length herein. The terms and provisions of any such rider or addendum will
control those of this Contract, but only to the extent necessary to give them full effect. No such rider or
addendum to this Contract shall be binding or effective unless and until executed by both Purchaser and
Seller.
39. BUYER'S RIGHT TO CANCEL PURSUANT TO FLORIDA CONDOMINIUM ACT.
THIS CONTRACT IS VOIDABLE BY PURCHASER BY DELIVERING WRITTEN
NOTICE OF THE PURCHASER'S INTENTION TO CANCEL WITHIN FIFTEEN (15) DAYS
AFTER THE DATE OF EXECUTION OF THIS CONTRACT BY THE PURCHASER, AND
RECEIPT BY PURCHASER OF ALL OF THE ITEMS REQUIRED TO BE DELIVERED TO
HIM OR HER BY THE DEVELOPER UNDER SECTION 718.503, FLORIDA STATUTES. THIS
CONTRACT IS ALSO VOIDABLE BY PURCHASER BY DELIVERING WRITTEN NOTICE
OF THE PURCHASER'S INTENTION TO CANCEL WITHIN FIFTEEN (15) DAYS AFTER
THE DATE OF RECEIPT FROM THE DEVELOPER OF ANY AMENDMENT WHICH
MATERIALLY ALTERS OR MODIFIES THE OFFERING IN A MANNER THAT IS ADVERSE
TO THE PURCHASER. ANY PURPORTED WAIVER OF THESE VOIDABILlTY RIGHTS
SHALL BE OF NO EFFECT. PURCHASER MAY EXTEND THE TIME FOR CLOSING FOR A
PERIOD OF NOT MORE THAN FIFTEEN (15) DAYS AFTER THE PURCHASER HAS
RECEIVED ALL OF THE ITEMS REQUIRED. PURCHASER'S RIGHT TO VOID THIS
CONTRACT SHALL TERMINATE AT CLOSING.
40. COMMUNITY DEVELOPMENT DISTRICT.
THIS UNIT MAY BECOME PART OF A COMMUNITY DEVELOPMENT DISTRICT.
A COMMUNITY DEVELOPMENT DISTRICT IMPOSES TAXES OR ASSESSMENTS, OR
BOTH TAXES AND ASSESSMENTS, ON THIS UNIT THROUGH A SPECIAL TAXING
DISTRICT. THESE TAXES AND ASSESSMENTS PAY THE CONSTRUCTION, OPERATION
AND MAINTENANCE COSTS OF CERTAIN PUBLIC FACILITIES AND SERVICES OF THE
DISTRICT AND ARE SET ANNUALLY BY THE GOVERNING BOARD OF THE DISTRICT.
THESE TAXES AND ASSESSMENTS ARE IN ADDITION TO ALL OTHER TAXES AND
ASSESSMENTS PROVIDED FOR BY LAW.
ANY PAYMENT IN EXCESS OF 10% OF THE PURCHASE PRICE MADE TO THE
DEVELOPER PRIOR TO CLOSING PURSUANT TO THIS CONTRACT MAYBE USED FOR
CONSTRUCTION PURPOSES BY THE DEVELOPER.
SELLER:
DC703, LLC, a Florida limited liability company
PURCHASER(S):
By:
Print Name: David Schwarz
Title: Manager
Address: c/o David Schwarz
2704 Via Murano
Clearwater, Florida 33764
Tel: (727)531-2525
Fax: (727)531-5121
Print Name:
Print Name:
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Purchaser's Initials
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Date signed by Seller: December _, 2004
("Effective Date")
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Date signed by Purchaser:
Purchaser's Initials
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EXIDBIT "C"
[Consent and Joinder, Affidavit to Authorize, and Buyer Acknowledgement]
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CONSENT AND JOINDER
TO SEEK GOVERNMENTAL APPROVALS AND
PETITION TO ESTABLISH
COMMUNITY DEVELOPMENT DISTRICT
hereby agrees and consents with respect to the property described below
(1) to the establishment by Seller and/or its assigns of a community development
district with authority to exercise all special and general powers upon the lands
described below, pursuant to Chapter 190, Florida Statutes, and (2) the Seller
and/or its assigns and agents applying for, seeking and obtaining any federal,
state, and/or local land use, development, construction, environmental, or
governmental approvals, permits, orders, decisions, and/or consents (collectively
"approvals") deemed necessary by Seller.
LEGAL DESCRIPTION
[See attached Exhibit "A"]
PROPERTY ADDRESS:
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STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of
, 2005 by , who is personally
known to me or who has produced as identification.
Signature of Notary
Printed Name of Notary
Commission Expires:
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EXHIBIT "A"
LEGAL DESCRIPTION
A tract of land lying within Section 20 and 29, Township 29 South, Range 16
East, Pinellas County, Florida and being more particularly described as
follows:
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Commence at the Southwest corner of said Section 20; thence along the
South line of Section 20, South 89019'48" East, for 721.40 feet; thence
South 00027'22" East, for 43.51 feet to the Point of Beginning, said point
also being a point of intersection with a non-tangent curve concave to the
South; thence Easterly along the arc of said curve with a radial bearing
South 00027'51" East, having a radius of 35.00 feet, a central angle of
1405r42", an arc length of 9.08 feet and a chord bearing South 83002'00"
East, for 9.05 feet to the point of reverse curvature with a curve concave to
the North; thence Easterly along the arc of said curve, having a radius of
35.00 feet, a central angle of 13043'39", an arc length of 8.39 feet and a
chord bearing South 82027'58" East for 8.37 feet to the point of tangency;
thence South 89019'48" East for 111 .84 feet to the point of intersection with
a non-tangent curve concave to the Northwest; thence Easterly along the
arc of said curve with a radial bearing North 00040'13" East, and having a
radius of 55.50 feet, a central angle of 118044'10", and arc length of 115.01
feet and a chord bearing North 31018'08" East, for 95.51 feet to the point of
intersection with a non-tangent curve concave to the Northeast; thence
Southeasterly along the arc of said curve with a radial bearing North
61056'04" East, and having a radius of 15.00 feet, a central angle of
46010'01 ", an arc length of 12.09 feet and a chord bearing South 51008'57"
East, for 11.76 feet to the point of compound curvature with a curve
concave to the North; Thence Easterly along the arc of said curve, having a
radius of the 125.00 feet. A central angle of 56040'40", an arc length of
123.65 feet and a chord bearing North 7r25'43" East, for 118.67 feet to the
point of reverse curvature with a curve concave to the Southeast; Thence
Northeasterly along the arc of said curve, having a radius of 303.00 feet, a
central angle of 00031'45", an arc length of 2.80 feet and a chord bearing
North 49021'15" East, for 2.80 feet of the point of intersection with a non-
tangent line; Thence North 40022'52" West, for 14.84 feet to the point of
intersection with a non-tangent curve concave to the Northwest; Thence
Northeasterly along the arc of said curve with a radial bearing North
40043'39" West, and having a radius of 74.87 feet, a central angle of
02040'04", an arc length of 3.49 feet and a chord bearing North 4r56'19"
East, for 3.49 feet to the point of reverse curvature with a curve concave to
the Southeast; Thence Northeasterly along the arc of said curve, having a
radius of 234.00 feet, a central angle of 34019'10", an arc length of 140.16
feet and a chord bearing North 63045'52" East, for 138.08 feet to the point
of tangency; Thence North 80055'27" East, 97.25 feet; Thence North
56001 '58" East, for 40.45 feet; Thence North 78050'41" East, for 127.14
feet; Thence South 78023'09" East, for 24.44 feet; Thence South 11052'40"
East, for 9.10 feet: Thence North 79023"05" East, for 49.80 feet; thence
North 10051 '19" West, for 10.82 feet; Thence North 420 27'28" East, for
.
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66.53 feet; thence North 35048'02" East, for 134.85 feet; Thence East, for
67.34 feet; Thence South 38008'04" East, for 12.67 feet; Thence East, for
68.14 feet; Thence North 54'10"51 East, for 17.03 feet; Thence East, for
96.27 feet; Thence North 55005'18" East, for 63.64 feet; Thence East, for
25.42 feet to the point of curvature of a curve concave to the North; Thence
Easterly along the arc of said curve, having a radius of 64.00 feet, central
angle of 39042'28" an arc length of 44.35 feet and a chord bearing North
70008'46" East, for 43.47 feet to the point of reverse curvature with a curve
concave to the South; Thence Northeasterly along the arc of said curve,
having a radius of 58.00 feet, a central angle of 36055'37, an arc length of
73.38 feet and a chord bearing North 68045'21" East, for 36.74 feet to the
point of reverse curvature with a curve concave to the Northwest; Thence
Easterly along the arc of said curve, having a radius of 54.00 feet, a central
angle of8r13'09", an arc length of 82.20 feet a chord bearing North
43036'34" East, for 74.49 feet to the point of tangency; Thence North, for
189.83 feet; Thence South 89019'09" East, for 779.97 feet; Thence South
60000'00" West, for 1333.52 feet; Thence South 89019'48" East for 209.91
feet; thence South 24054'45" West, for 343.41 feet to the point of
intersection with a non-tangent curve concave to the Southeast; Thence
Southwesterly along the arc of said curve with a radial bearing South
52036'11" East having a radius of 1577.45 feet, a central angel of 13022'27",
an arc length of 368.22 feet and a chord bearing South 30042'35" West, for
367.38 feet to the point of intersection with a non-tangent line; Thence North
89004'26" West, for 829.18 feet; Thence North 00027'22" West for 584.06
feet to the Point of Beginning.
TOGETHER WITH a non-exclusive easement for a purposes of ingress, egress
and utilities as set forth in grant of easement recorded in Deed Book 1483, Page
285; as affected by First Amendment to the Grant of Easement recorded in
Official Records Book 10652, Page 534, of the Public Records of Pinellas county,
Florida.
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TOGETHER WITH non-exclusive easements as set forth in the Operating
Maintenance and Easement Agreement recorded in Official Records Book
10784, Page 1247, ofthe Public Records of the Pinellas County, Florida.
AND ALSO THE FOllOWING:
FIVE FOOT STRIP FOR INGRESS AND EGRESS:
A certain 5 foot strip of land lying in Section 20, Township 29 South, Range 16
East, Pinellas County, Florida, as described in Official Records Book 3528, Page
521 and being more particularly described as follow: .
Commence at the Southwest corner of said Section 20 and run South 89019'48"
East, along the South line of said Section 20, a distance of 100.01 feet to the
Point of Beginning, leaving said South line, Thence North 01026'21" East, a
distance of 5.00 feet; Thence South 89019'48" East, a distance of 609.99 feet;
Thence South 01026'21" West, a distance of 5.00 feet; Thence North 890 19'48"
West, a distance of 609.99 feet to the Point of Beginning.
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AFFIDAVIT TO AUTHORIZE AGENT
STATE OF FLORIDA
COUNTY OF
, being first duly sworn, depose(s) and say(s):
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1. the owner(s) and record title holder(s) of the property described as
follows (the Property"):
Unit, THE GRAND VENEZIA AT BAYWATCH, a Condominium,
according to the Declaration of Condominium thereof, as recorded
in Official Records Book 14030, Pages 1368 thro~gh 1486, and the
Amended and Restated Declaration of Condominium as recorded
in Official Records Book 14243, Page 1040-1145, together with all
appurtenances thereto, including an undivided interest in the
common elements of said Condominium, as set forth in said
Declaration, Public Records of Pinellas County, Florida.
PROPERTY ADDRESS: ,Unit, Clearwater, FL 33764.
. 2. That this Property constitutes a portion of the land for which a
request for a Community Development District is being applied for
to the City Commission of the City of Clearwater.
3. That this Property constitutes a portion of the land for which a
request for federal, state, and/or local land use, development,
construction, environmental, and/or governmental approvals is
being sought.
4. That the undersigned (has/have) appointed W. Scott Callahan and
Thomas A. Cloud as (his/their) agent(s) to execute any permits or
other documents necessary to affect such permit.
5.
That this affidavit has been executed to induce the appropriate
governmental agency(ies) to consider and act on the above-
described Property.
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6.
That the undersigned authority hereby certifies that the foregoing is
true and correct.
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of
I 2005 by and I who are personally
known to me or who has produced as identification.
Signature of Notary
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Printed Name of Notary
Commission Expires:
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ACKNOWLEDGMENT OF POSSIBLE
COMMUNITY DEVELOPMENT DISTRICT
With respect to the property described below, hereby acknowledges that
this Unit may become part of a Community Development District.
A COMMUNITY DEVELOPMENT DISTRICT IMPOSES TAXES OR
ASSESSMENTS, OR BOTH TAXES AND ASSESSMENTS, ON THIS UNIT
THROUGH A SPECIAL TAXING DISTRICT. THESE TAXES AND
ASSESSMENTS PAY THE CONSTRUCTION, OPERATION AND
MAINTENANCE COSTS OF CERTAIN PUBLIC FACILITIES AND SERVICES
OF THE DISTRICT AND ARE SET ANNUALLY BY THE GOVERNING BOARD
OF THE DISTRICT. THESE TAXES AND ASSESSMENTS ARE IN ADDITION
TO ALL OTHER TAXES AND ASSESSMENTS PROVIDED FOR BY LAW.
LEGAL DESCRIPTION
Unit, THE GRAND VENEZIA AT BAYWATCH, a Condominium,
according to the Declaration of Condominium thereof, as recorded
in Official Records Book 14030, Pages 1368 through 1486, and the
Amended and Restated Declaration of Condominium as recorded
in Official Records Book 14243, Page 1040-1145, together with all
appurtenances thereto, including an undivided interest in the
common elements of said Condominium, as set forth in said
Declaration, Public Records of Pinellas County, Florida.
PROPERTY ADDRESS:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of
, 2005 by , who is personally
known to me or who has produced as identification.
Signature of Notary
Printed Name of Notary
Commission Expires:
C:\Documents and Settings\bah\Local Settings\Temporary Internet Files\OLK3C\BUYER
ACKNOWLEDGMENT FORM.doc
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BEFORE THE CITY COUNCIL
OF THE CITY OF CLEARWATER, FLORIDA
IN RE: PROPOSED ORDINANCE PURSUANT )
TO SECTION 190.005(2), FLORIDA STATUTES, )
TO ESTABLISH THE CLEARWATER CAY )
COMMUNITY DEVELOPMENT DISTRICT )
)
TESTIMONY OF CAREY GARLAND
FOR CLEARWATER CAY COMMUNITY DEVELOPMENT DISTRICT
1. Please state your name and business address.
Carey Garland, Fishkind & Associates, 11869 High Tech Ave. Orlando,
Florida 32817.
2. By whom are you employed and in what capacity?
I am currently employed by Fishkind & Associates as a real estate
consultant.
3.
And what is the nature of your firm's business?
We provide economic, financial consulting, and management services to
the real estate development industry and to many community
development districts in the State of Florida.
4. Please state by whom you were employed prior to Fishkind &
Associates, and your responsibilities in those positions?
From 1990 until 1996 I worked for Westinghouse Communities, a land
developer based in Naples, Florida. My responsibilities included project
management for a large-scale residential community. I also managed the
formation, management, and financing of the company's community
development districts.
5. Please describe your educational background, with degrees earned,
major areas of study, year of degree, and institutions attended.
I hold a Bachelors of Science in engineering from the University of
Missouri and a Masters in Business Administration from the University of
Michigan.
6.
Have you ever been qualified as an expert regarding economic
analyses of special districts?
1
.
Yes. I have been qualified as an expert witness in the proceedings to
establish a number of community development districts, including the
Brooks at Bonita Springs COO, Split Pine COD, and Tolomato COD.
7.
Have you previously worked with other petitioners for the
establishment of a community development district and prepared a
Statement of Estimated Regulatory Costs in accorda,nce with Florida
Statutes?
Yes. Our office has prepared approximately fifty Statements of Estimated
Regulatory Costs. I have prepared approximately 20 Statements of
Estimated Regulatory Costs.
8. Please summarize your previous work experience relating to special
districts in general.
I personally serve as Financial Advisor to approximately 20 community
development districts ("COOs") and our firm is Financial Advisor to over 35
COOs. As Financial Advisors to COOs, our firm has assisted our clients in
successfully financing in excess of 140 transactions raising in excess of
$2 billion dollars. Also, we maintain the lien books and file the tax rolls for
ten COOs and special districts.
.
9.
Where in Florida are the community development districts that you
have advised or with which you have been employed?
I have worked with districts in Flagler, St. Johns, Bay, Orange, Leon,
Broward, Dade, Collier, Lee, Sarasota, Volusia, Duval, Manatee, Palm
Beach, and Hillsborough Counties. The firm also has district clients in
Marion, St. Lucie, Charlotte, Pasco, Hernando, Osceola, Lake and
Manatee Counties.
10. Please describe how these community development districts
operate.
Community development districts are governed by a five member board of
supervisors elected initially by all the landowners in the district. The Board
selects a district manager who manages and operates the community
services and facilities and handles all administrative functions. The district
manager prepares the annual budget to be adopted by the Board after the
requisite public notice and hearing. The District submits a copy of the
proposed budget to the applicable local general purpose government for
review and optional comment. The Board adopts all resolutions and
policies of the district for its ongoing appropriations and operation.
.
11. Are community development districts subject to the Sunshine
Meeting and Public Records laws as are general purpose local
governments?
2
.
Yes. Community development districts are independent special units of
local government and are subject to the same open meetings and public
records requirements.
12.
Please describe any other requirements and public safeguards.
The creation of a district does not change the requirements for
governmental approval of land development within the district. All state
and local planning, zoning, permitting, land use and other land
development regulations remain applicable to the property contained
within a community development district.
Florida Statutes also require the district to take affirmative steps to provide
full disclosure of information relating to the establishment of the district
and the financing and maintenance of public improvements to real
property undertaken by the district.
Each member of the Board of Supervisors is required by statute to be a
resident of Florida and citizen of the United States. When the Board
begins to be elected by the resident electors of the district, each member
must also be a resident and elector of the district. Board members must
annually file the same financial disclosure forms required of other local
officials.
.
The district is subject to audit by an independent certified public
accountant and must provide its annual financial report to the State. All
rates, fees, and charges imposed by the district must be adopted pursuant
to Chapter 120 rulemaking. The board must follow Chapter 120
rulemaking procedures in the adoption of its other rules.
If the district is to impose non-ad valorem assessments, it must provide
the same notices and conduct the same public hearings that would be
required of any other unit of local government. That process entails
preparation of an assessment methodology that fairly and equitably
allocates the cost of the district's projects.
13. Please describe how a community development district is funded or
derives revenue to operate on a long-term basis?
In the first few years, in lieu of assessments on land within the district, the
district's operations are often funded by a "funding agreement" between
the district and the landowner/developer.
.
To provide for financing of capital projects, the district may issue bonds or
other forms of indebtedness. Bonds issued by the district must be
secured by a trust agreement, and any bond maturing over a period of
more than five years must be validated by circuit court pursuant to
3
.
.
.
Chapter 75, Florida Statutes. The district may also borrow funds on a long
or short term basis.
Debt of the district may be serviced through the imposition of non-ad
valorem special assessments, or by charging fees on users of the district's
facilities and services. By law, debt of the District cannot become debt of
any other government (city, county, or state), absent that government's
consent. \
14. What alternatives might be available to provide community
infrastructure for the lands within the proposed district?
In my opinion there are two alternatives which might provide community
infrastructure such as the roads, utilities, drainage, parks and other
improvements contemplated for the proposed district:
1. The general purpose. local government could finance the
improvements utilizing special assessments or general funds, or
2. The developer could provide infrastructure through private
financing, if available.
As discussed later in my testimony, neither of these alternatives is
preferable to the establishment of a community development district.
15. Are you familiar with the Petition to establish the Clearwater Cay
Community Development District and, if so, what participation, if
any, did you have with respect to the Petition?
Yes, I am familiar with the Petition to establish the Clearwater Cay
Community Development District. I developed the Statement of Estimated
Regulatory Costs ("SERC"), required by Chapters 120 and 190, Florida
Statutes, that is included in the Petition.
Lets begin to address portions of the Petition to establish the
Clearwater Cay Community Development District relating to certain
economic analysis, including the exhibits you are sponsoring into
evidence and your expert opinions on economic analysis issues.
16. You stated that you are familiar with Petition and prepared the
SERC?
Yes.
17.
Are there any corrections that need to be made?
No.
4
.
18. In general terms, please summarize the economic analyses you have
presented in the SERC.
The SERC reviewed and evaluated four major categories of potential
impacts as outlined in Section 120.541 (2)(f), Florida Statutes. These
include:
(a) A good faith estimate of the number of individuals and entities likely
to be required to comply with the ordinance, together with a general
description of the types of individuals likely to be affected by the
ordinances;
(b) A good faith estimate of the cost to the agency, and to any other
state and local government entities, of implementing and enforcing the
proposed ordinance, and any anticipated effect on state and local
revenues;
(c) A good faith estimate of the transactional costs likely to be incurred
by individuals and entities, including local governmental entities, required
to comply with the requirements of the ordinance; and
.
(d) An analysis of the impact on small businesses as defined by
Section 288.703, Florida Statutes, and an analysis of the impact on small
counties and small cities as defined by Section 120.52, Florida Statutes.
In summary, we concluded that there is no adverse impact on any affected
party from establishment Of proposed district.
19. Please describe briefly the data and methodology you used in
preparing the SERC and related analyses.
The methodology I used is consistent with that commonly employed by
others in the industry. Much of the other data was provided by the
Petitioner and Mr. Richard Claybrooke of Post, Buckley, Schuh & Jernigan
(the engineer for the Petitioner). I also drew from my previous experience
with other special districts.
20. Do you have an opinion from an economic analysis perspective as to
whethe.r the Clearwater Cay Community Development District is of
sufficient size, sufficient compactness and sufficient contiguity to be
developable as a functionally interrelated community?
Yes, I do. It is my opinion that the proposed district is of sufficient size,
sufficient compactness and is sufficiently contiguous to be developable as
one functionally interrelated community.
.
21. Do you have an opinion. from an economic analysis perspective as to
whether the proposed district is the best alternative available for
5
.
providing community development services and facilities to the area
proposed?
Yes, I do. It is my opinion that the Clearwater Cay Community
Development District would be the best alternative available to provide
community development services and facilities to the lands proposed to be
included within the district.
Regardless of the specific mechanism (i.e., MSTU/MSBUI other
dependent district) employed, the City would incur costs associated with
the financing and management of the construction. The source of the
necessary construction funds would be the City's general revenue fund or
issuance of additional debt through a depending taxing or assessing unit.
If general revenue is used, these costs, along with annual maintenance
costs, would be borne by all City residents, not just property owners within
the district. Financing improvements through the City even with an MSBU
would impact the City's total bonding capacity and would have a number
of management implications.
.
Private financing is difficult to obtain and when available, is very
expensive. This may result in housing that is less affordable or a
decrease in the level of services provided. In addition, annual
maintenance would likely be delegated to a homeowners association
which does not have the same legal backing to enforce assessments as
does a community development district.
With a community development district, the district incurs the cost of
issuing bonds or other indebtedness necessary to finance the construction
of the necessary infrastructure and will oversee and manage all phases of
construction. All costs associated with these activities will be borne only
by property owners within the district that benefit from the improvements.
No City general funds will be used and no costs will be incurred by any
City resident who does not purchase property within the district.
The district continues to operate and maintain the certain of the
infrastructure improvements and, often times, maintains the common
areas in the community. The district as special unit of local government is
a better alternative than the local government or the homeowners
association in addressing community matters within the area. It relieves
some of the demand on county or municipal government staff and the
strain on local government budgets, yet it can employ its own professional
staff to be more responsive to community concerns and more efficiently
resolve community issues than could a homeowners association.
.
22. Assuming the district issues bonds or other indebtedness to fund
infrastructure improvements, will the district likely issue more debt
.
6
.
23.
.
.
than the actual construction costs estimated in the exhibits to the
Petition, as such exhibits have been supplemented?
My company, in its capacity as financial advisor, assists districts in
preparing a plan to finance not only the actual "hard" construction costs
but also to finance required reserve accounts, capitalized interest during
construction, issuance costs and other contingencies. As a rule of thumb,
a bond issuance, if undertaken by a district would be for an amount which
is approximately 25-35% higher than the final estimated construction
costs. It is my understanding that the dollars reflected in Exhibit F to the
Petition, as supplemented, are good faith best estimates of the
construction costs at this time but which may be increased or decreased
as more information is available closer to construction.
Does such a plan of finance take into account a mechanism to
address situations in which a landowner, developer, or builder
actually provides less units than were contemplated in the plans?
Yes, it does. It is typical that the assessment methodology adopted by the
district would account for these variables. We call this a true up process.
Essentially, while it is appropriate that a district consider the expected
number of units to be served by the district's. infrastructure improvement
program, it is not uncommon that those actual numbers change because
of changes in regulatory requirements, development plans, land use
approvals, or other matters. Any assessment lien imposed by a district
would be expected to include a provision for a developer to pay the district
for any reduction in units after the district has imposed assessments and
incurred debt so that the district continues to receive the revenue
expected when the plan of finance was sized and generated.
24.
Do you have an opinion from an economic analysis perspective as to
whether the services and facilities to be provided by the district will
be incompatible with the uses and existing local and regional
facilities and services?
Yes, I do. It is my opinion that the services and facilities to be provided by
the proposed Clearwater Cay Community Development District are not
incompatible with uses and existing local and regional facilities and
services.
Any services required of the district are necessary to support new growth
in the area. A community development district must still adhere to higher
governmental rules, procedures and standards because they operate as
governments ensuring public oversight to avoid duplication or
incompatibility.
. I
7
.
25. Do you have an opinion from an economic analysis perspective as to
whether to the area to be included is amenable to continue being
served by a separate special district government?
Yes, I do. It is my opinion that the area to be included within the district is
amenable to being served by a separate special district government.
26. What is the basis for your opinion?
Due to the size, complexity, and specialized nature of the improvements, a
need exists for professional organized management which is best
provided by a community development district and which will not burden
the City. The area within the proposed district is of sufficient size,
compactness, and contiguity and is economically viable, such that the
area to be served by the proposed district is clearly amenable to separate
special-district governance. The basis for my opinion is my experience
with other districts of similar size and configuration.
Now let's address certain special district management issues and
your opinions with regard to those issues.
.
27. Do you have an opinion, as someone experienced in district
managemen~ and operations, as to whether the proposed district is
the best available alternative for delivering community services and
facilities to the area that will be served?
Yes. The district is the best alternative available for delivering community
services and facilities to the area that will be served. The improvements
include certain roadway improvements, utility facilities, surface water
management and recreational facilities.
Looking at the alternatives, the City could finance and manage the
roadway, drainage, and recreational improvements utilizing special
assessments or general funds. The developer and/or a homeowner's
association could provide these facilities through private financing. In
evaluating these alternatives, one may consider whether the alternative is
able to provide the best focused service and facilities, can effectively and
efficiently manage and maintain the facilities, and whether the alternative
can secure low cost, long term public financing and pay for all of the
management benefits at sustained levels of quality.
.
The City clearly provides the long term perspective and serves as a stable
and relatively low cost source of financing and provider of services at
sustained levels. However, the City has substantial demands over a
broad geographical area which places a heavy management delivery load
on its staff. In addition, if dependent district financing were used, the City
8
.
would be responsible for all administrative aspects of the dependent
district. The City would have to make time and schedule meetings to
address monthly matters pertaining to the dependent district. By using a
dependent district mechanism, the City would be increasing its
responsibility and hence liability for the variety of actions that will take
place in the development. The City (through the dependent district) would
be the contracting party for all construction contracts, would have to deal
with bid documents and bid protests, enforce performance bonds and
participate in construction arbitration or litigation if necessary. It would
deal with delay claims and cost overruns and all the other headaches that
come with being the owner in a public construction process. A district can
be created to provide focused attention to a specific area in a cost
effective manner. It also allows the City to focus staff time, finances and
other resources else where and does not burden the general body of
taxpayers in the City with the debt association with this growth.
.
The other alternative is the use of private means - either through a
property owner's association or through the developer, or both in
combination. This combination can clearly satisfy the high demand for
focused service and facilities and managed delivery. However, only a
public entity can assure a long term perspective, act as a stable provider
of services and facilities, qualify as a lower cost source of financing, and
pay for and maintain services at sustained levels. Property owners'
associations lack the ability to effectively finance the improvements and
are not perpetual entities capable of sustained maintenance activities.
Furthermore, provision of these facilities through a POA or directly from
the developer does not provide the level of oversight and responsiveness
which comes with a community development district. Neither the
developer nor.a POA would be required to conduct all actions relating to
the provision of these improvements in the "sunshine" as a district must, or
abide by all other public access requirements which are incumbent upon a
district and its board of supervisors.
A community development district is an independent special purpose unit
of local government designed to focus its attention on providing the best
long-term service to its specially benefited properties and residents. It has
limited power and a limited area of jurisdiction and is governed by its own
Board and managed by those whose sole purpose is to provide to the
district long-term planning, management, and financing of these services
and facilities. This long-term management capability extends to the
operation and maintenance of the facilities owned by the district. Further,
the sources for funding and manner of collections of funds will assure that
the district facilities will be managed at the sustained levels of quality
desired by residents well into the future.
.
9
.
28. Do you have an OpiniOn, as someone experienced in district
management and operations, as to whether the area to be included
within the proposed district is of sufficient size, is sufficiently
compact, and sufficiently contiguous to be developable as one
functional, interrelated community?
Yes. The proposed district has sufficient land area, and is sufficiently
compact and contiguous to be developed, with the roadway, drainage,
utility and other infrastructure systems, facilities and services
contemplated, as one functionally interrelated community.
29. What is the basis for your opinion?
The size of the proposed Clearwater Cay Community Development
District is approximately 49.37 acres. I believe the district is of sufficient
size and is sufficiently compact and contiguous.
.
The qualities of compactness, contiguity, and size relate directly to
whether an area can become one functional interrelated community. The
area to be included within the district can be expected to succeed as a
functional, interrelated community from a district management
perspective. From the standpoint of the provision, management and
operation of the community infrastructure expected to be provided by the
proposed district, the acres contemplated for inclusion within the district is
sufficiently compact, contiguous and of sufficient size to maximize the
successful delivery of these infrastructure improvements to the land to be
served. These characteristics ensure that the delivery of services and
facilities to the land within the district will not be hampered by
insurmountable barriers or spatial problems. The area within the district is
suitably configured to maximize the benefits available from the district
services and facilities to be provided.
30.
Do you have an opinion, as someone experienced in district
management and operations, as to whether the area that will be
served by the proposed district is amenable to separate special
district government?
Yes. The area to be served by the district, being of sufficient size,
compactness, and contiguity, is therefore, clearly amenable to separate
special-district governance. The configuration of the district is not unlike
other community development districts with which I have worked over
time.
31.
What is the basis for your opinion?
.
Two criteria are needed to evaluate a land area as amenable to separate
special district governance.
10
.
1. Does the land area have need for the facilities and services and will
its owners and residents benefit from facilities that the special district
could provide? And
2. Is the land area of sufficient size, sufficient compactness, and
sufficiently contiguous to be the basis for a functional interrelated
community?
Under both criteria, the district is a planned community of sufficient size
with a need for the facilities and improvements which are presently
expected to be provided. As described in the Petition, the district will
construct and maintain certain identified needed facilities and services.
Based on my experience, a district of this size is large enough to
effectively provide and manage these facilities and services. Finally, the
area to be included in the district is compact and contiguous so that the
provision of services and facilities by separate special district government
will be facilitated. From a management and operations perspective, the
land area is well suited to the provision of the proposed services and
facilities. Ultimately, of course, if later circumstances would cause the City
to re-evaluate whether the land should continue as separate special
district government, the City has options under section 190.046(4), Florida
Statutes, to effectively assume the functions and obligations of a
community development district.
.
32. Do you have an opinion, as someone experienced in district
management and operations, as to whether the community
development services and facilities of the district will be
incompatible with the capacity and use of existing local and regional
community development services and facilities?
Yes. The proposed services and facilities of the district is not incompatible
with the capacity and uses of existing local or regional community
development services and facilities.
33. What is the basis for your opinion?
The petitioner presently expects the district to finance and construct
certain roadway, utility, drainage and recreation improvements. None of
the facilities expected to be provided by the district presently exist at a
local or regional level. Ultimately, a district may own and maintain certain
of those improvements, such as the recreation improvements and the City
may own and maintain others. However, there will be no overlap,
duplication or incompatibility because the facilities and improvements
expected to be provided by the district do not exist today.
.
34. What, if any, impact will occur to City ad valorem tax revenues if the
District is created?
11
.
Positive impacts. At the request of the City, I performed an analysis which
is reflected in the table entitled "Calculation of Estimated Tax Revenues
for Clearwater Cay Club COD Post Redevelopment" which is attached to
and incorporated in my testimony as Exhibit" A." This table reflects an
increase in ad valorem taxes of over $3 million.
35.
Does that conclude your testimony?
Yes.
FURTHER YOUR AFFIANT SAITH NOT
- (
Sworn to (or affirmed) and subscribed before me this 3 f ~ day of
. Ov-~ u ~+ ,2005, by Mr. Carey Garland.
STATE OF FLORIDA
COUNTY OF O('ClVl5 ~
AFFIX NOTARY STAMP
dU~ C. m~\f\ tA.
re of Notary Public
-rudit~ ft. M~fV+e r
Print Notary Name
My Commission Expires:
Commission No.:
b<Personally known, or
/0 Produced Identification
Type of Identification Produced
JUDITH A. MINTER
My Comm Exp. 12/15105
No. DO 065372
w.- [1 Other 1.0.
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EXHIBIT 2 TO THE COUNCIL MINUTES DATED 9{1/05
.1
CONSENT AND JOINDER
TO PETITION TO ESTABLISH
COMMUNITY DEVELOPMENT DISTRICT
The Grand Bellagio at Baywatch Condominium Association, Inc., a non-
profit Florida corporation, by and through the undersigned hereby agrees and
consents to the establishment of a community development district with authority
to exercise all special and general powers upon the lands described in Exhibit. A.
attached hereto, pursuant to Chapter 190, Florida Statutes.
BELLAGIO AT
CONDOMINIUM
a non-profit
THE GRAND
BAYWATCH
ASSOCIATION, INC.,
Florida corporation
By: ~~ ~
David W Schwarz, a President
STATE OF FLO~DA .
COUNTY OF \-^'~
C Th~regOing instrument was acknowledged before me this ~ay of
~~ ' 2005 by David W Schwarz, as President, of The Gr~nd
Bellagio at Baywatch Condominium Association, Inc., a non-profit Flonda
corporation, who is personally known to me or who has produced
as identification.
..-:;.~.~.. w SCOTT CALLAHAN
f.~>>b. MY cOMMISSION' DO 2m88
1.J. .: I EXPIRES: January 27,2008
"I!I.l':' 1OndId'TllN NoIIIY f'I.lliIO ~
. ,
Commission Expires:
U:\wsc.<:Ienl ~18371ll41~ -.gIo _.DOC
, 363309 v1
"
......
...
. .
.
.
CLEARWATER COMMUNITY DEVELOPMENT DISTRICT
A parcel of land in Sections 20 and 29, Township 29 South, Range 16
East, Pinellas County, Florida, being more particularly described as
follows:
Commence at the Southwest corner of said Section 20;. thence along
the South line' of said Section 20, -S89019148"E, a distance of 100.01
feet .to the East right of way line of U. S. Highway 19 and the POINT
OF BEGINNING; thence. N01026'21"E, along said East right of way line,
'a distance of 350.00 feet; thence S89019'48'.IE, parallel with said
South line of Section 20, a distance of 175.00 feet to the Southeast
corner of .property conveyed in Official Records Book 13955,. Page 418
of the Public Records of Pinellas County, Florida; thence
N01026'21"E, along the East line' of said property, a distance' of
200.00 feet to the Northeast corner. of said .property; thence
N89,o19'48"W, along'the North line of said property, a.di~tance of
175.00 feet to said East right of way line of U.S. Highway 19';,
t~ence N01.26'21"E, along said Ea~t right of way line, a distance of
73.79 feet to the Southwest corner of proper~y con~eyed in Official
Records Book .13618, Page 304. of the Public' Re'cords of Pinellas
County, Florid(i; thez:1ce S89019'48"E, along t'he South line of said
property, a distance of 210.24 feet to the Southeast corner of said
property; thence N01026'~1"E, along the East line of said property,
a distance of 179.82 feet to 'the Northeast corner of said pioperty;
thence. N89019'48"W, along the North line of said pioperty, a
distance of 210.24 feet to said East. rj,.ght of way line of. U. S.
Highway 19; th~nce N01026'~1"E, alo~g said East' right ot way line, a,
distanc~'of 361.95 feet; thence S89026'50"E, a distance ot 885.00
feet; . thence SOl026'.21"W, a distance of' 572.00 feet; thence
N89019'48"W, a disti;l.nce of ~63.00 feet; thence SOl026'.21"W, a.
distance of 246.00. feet; thence N89019'48"W, a distance of 12.00
fe,et; ,thence SOl'o 26' 21 "W, a distance of 34 9.37 feet to said South
lin~ of Section 20 and the North line .of said Section 29; thence
S89019' 48np:, along Siaid South line and North line, a distance of
11~39 feet. to Northeast corner of pr~~erty conveyed in Official.
Records Book 1076g,.Page 1415 of the Public Records of Pinellas
County, Floridai' thence SOO 027' 22 "E, for 43.51 feet to the. Northwest..
corner 'of property conveyed inOfficial Records Book 13805,. Page 313
of the Publi~ Records of' Pinellas County, Florida, said corner als9
being a point of intersection with a non-tangent 'curve concave to
the South; thence Easterly along the arc of said c'urve with a radial
bearing SOO 0 27' 51 liE, and having a radius of 35.00 feet, a central
angle of 14051'42", an arc length of 9.08 fe'et and a chord bearing
S83002'00"E, for 9.05 feet to the point of reverse curva~~re with a
curve conc'ave to the' North; thence Easterly along the' arc of said
curve, having a radius of 35.00 feet, a central angl,e of 13 043' 39" ,
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an arc length of 8.39 feet and a chord bearing S82027'58"E, for 8.37
feet to the point of tangency; thence S89019148uE, for 111.84 feet
to the point of intersection with a non-tangent curve concave to the
Northwest; thence Easterly along the arc of said curve with a radial
bearing NOO 0 4 0' 13 "E, and having a radius of 55.50 feet, a centrai
angle of 118044'08", an arc length of 115.01 feet and. a chord
bearing N31 0 18' 08 "E" for. 95.51 feet to the point of intersection
wit~ a non-tangent curve concave .to the Northeast; thence
Southeasterly along the . arc of said curve with a radial bearing
N61056'04"E, and having a radius of 15.00 feet., a central angle of
46010'01", an arc' 'length of 12.09 feet and a chord bearing
S51 008' 57"E, for 11. 76 feet to the point of compound .curvature with.
a curve concave to the North; thence .Easterly along the arc of: said
curve, having a radius of 125.00 feet, a central angle of 56040'40",
an arc length of 123.65 feet and a chord bearing .N77025'43"E, for
118.67 feet to the point of r~verse. curvature with a curve 'concave
to the ~outheast; thence Northeasterly along the arc of said -curve,
having a radius of ~03.00 feet, a central angle'of 00031'45", an arc
length of 2.80 feet and a chord bearing N49021'15"E, for 2.80 feet
to the point of intersection with a non-tangent line; thence
N40022152"W, for 14.84 feet to the point 'of intersection with a non-
tangent curve concave to. the Northwest; thence Northeasterly along
the a~c of said cu~ve with.a radial bearing N40043139"W, and having
a r~dius of 74.87 feet, a central angle of 02040'04"" an arc length
of 3.49 .feet and a chord bearing N47056'19"E, for 3.49 feet to the
point of reverse curvature with a curve. c'oncave to the Southeast;
thence Northeasterly along the ar~ of said curve, having a radius of
234.00 feet, a central angle of 34019'10", an arc length of. 140.16
feet .and a chord' bearing N63 0 45' 52 "E, for 138.08 fe'et to the point
of tangency'; thence 'N80 055' 27"E, for 97.25 feet; thence N56 0 01' 58"E,
for 40.45 feet; thence' N78050'41i'E, for 127.14 feet; thence
S78023I09"E, for '24.44 feet; thence' S11052',40"E, for 9.10 feet;
thence N79023'05"E, for 49.80 feet; thence N10051'19"W, for 10.82
feet; thence N42027128"E, for 66.63 feet; thence N35048'02"E, for
134.85 feet;, thence East, ,for 67.34 feet; thence s38 008' 04 "E, for
12.67 feet; thence East, for 68.14 feet;, thence N54 010' 51 "E, for
'17.03 'feet; thence, East, for 96.27' feet; thence N55 0 05 '18'"E, for
63.64 feet; thence East, for 25.42 feet to the point of curvature of
'a curve concave to the"North; thence Easterly along the arc of said
curve, having a radius of 64.00 feet, a central an~le of 39042'28",
an arc length of 44.35 feet and a chord bearing N70008'46"E, for
43.47 feet to the point of reverse curvature with a curve concave to
the South; thence Northeasterly along the arc of 'said curve, having
a radius of 58.00' feet, a central angle of 36055'37", an arc length
of 37.38 feet and a 'chord bearing N68045'21"E, for 36.74 feet to the
point of reverse curvature' with a curve concave to the Northwest;
thence Easterly along the' arc of said curve, having a radius of
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54.00 feet, a central angle of 81013'09", an arc length of 82.20
feet and a chord bearing N4 3 0 36' 34 liE, for 74.49 f.eet to the point of
tangency; thence' North, for 189.83 feet; thence S89019'09"E, for
779.97 feet; thence S60000'OO"W, for 1333.52 feet; thence
S89019'48"E, for 209.91 feet; thence S24054'45"W, for 343.41 feet to
the point of intersection with a non~tangent curve concave to the
Southeast; thence Southwesterly along the arc of said curve with a
radial bearing S52036'11"E, and having a radius of 1577.45 feet, a
central angle of 13022'27", an arc length of 368.22 feet and a chord
bearing S300 42' 35"W, for 367.38 feet to the point of intersection
with a non-tangent line; .thence N89004 '26"W, for 829.18 feet to th'e
Southeast corner of property conveyed in Official Records Book
10769, Page 1415 of the Public Records of Pinellas County, Florida;
.thence N89021'00"W, along the' South line of said property, a
distance of 635; 75 feet to said East ri9ht of way line of U. S.
Highway 19;' thence NOO 0 51' 16,"E, . along said East ~ight of way line,
627.67 feet to the said POINT OF BEGINNING;
LESS AND EXCEPT ,the So~th 5.00 feet of the East 610.00 feet of the
.West 710.00 feet of said Section 20, Township 2~ South, Range 16
East, Pinell~s County, F~orida;
LESS AND EXCEPT the following described parcel:
A pa~cel of land lying in the Southwest
Section 20, Township 29 South, Range
Florida, per Official Records Book 9527,
Pinellas County, Florida, being ,more
follows:
1/4 of the So~thwest 1/4 of
16 East, Pinellas . County,
Page 480, Public Records of
particularly described as
Commence at the Southwest corner of said Section 20 and run South
89019'48" East, ,100.00 feet to the Ea~t right-of-way line of U.S.
Highway 19; thence North Q1026'2l" East along said East right-ot:-way
line, 5.00' feet to the POINT OF BEGINNING; . thence continue North
01026' 21" East, along said "East right-of-way line, 345.00 feet;
thence South 89019'48"" East, 252.55 feet; thence South 01026'21','"
West, 345.00 feet; thence North '89019'48" West, 252.55 feet to the
P9INT OF BEGINNING.
Overall, property containing 49.369 acres, more or less.
TOGETHER WITH and SUBJECT TO an easement for ingress, egress,
drainage and utili ties created by documents recorded in Official
Records Book 10958, Page 299, Official Records Book 12557, Page
2644, and Official Records Book i0784, Page 1247 of the Public
Records of Pinellas County Florida, over. the following described
parcel:
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A tract of land lying in Sections 20 and 29, Township 29 South,
Range 16 East, Pinellas County, Florida, being further' described ~s
follows:
Commence at the Southwest corner of said Section 20; thence
S89019'48"E, along the South line of said Section 20 and the North
line of said Section 29, a distance of 100.01 feet t6 the East right
of way line of U. S. Highway 19 and the POINT OF BEGINNING; thence
N01 026' 21 "E, along said East right of way line, a distance of 5.00
feet; thence S89019'48"E, parallel with said South line of Section
20, a distance of 610.00 feet; thence SOlo 2 6' 21 "W, a distance of
5.00 feet to the North line of said Section 29; thence S89019'48"E,
along said North line, a .distance of 5.89 feet to a point of
intersection with a non-tangent curve concave to the Northwest;
thence Northeasterly along the arc of said cur,ve with a radial
bearing N35013'11"W, 'and having a radius of 3~~00 feet;. a central
angle of 30038' 59", an arc length of 18.72 feet and a chord
bearing N39 027' 06"E, . for 18.50 fe'et to . the point of reverse
curvature with a curve concave .to the Southeast; thence
Northeasterly 'along the arc'of said curve, having a radius of 45;00
feet, a central angle of 660 32'.19" an arc length of' 52.26 feet and
a chord bearingN~7024'02"E, for 49.37 feet to the point of
tangency; thence S89019'48"E, ~or 15.64 feet to the point of
curvature of a curve concave to the North; thence Easterly alorig the
arc of said curve, having a radius of 50.00 feet, a central angle of
39~ 25' 12", an arc length of 34.40 feet and a chord bearing
N70057'37"E, for"33.73 feet to the point of a reverse curve conca~e
to the West; thence. Southeasterly along the arc of said curve,
. .' 0
.having a radius of 55.50 feet, a central angle of 219 25' 12", an
arc length ot 212.54 feet and a chord' bearing S19002'23"E, for
104.50 feet to the point of tangency; thence N89019'48"W, for 111.84
feet to the point of curvature of a curve concave to the North;
thenc~ Westerly along the arc of said curve, having a radi,us of
35.00 feet, a central angle of 130 43' 39",. an arc length of 8.39
feet .and a chord bearing N82027'58"W, for 8~37 feet. to the point of
reverse curvature' with a curve concave to the South; thence Westerly
along the arc of said curve, having a radius of . 35. 00 feet, a
central angle of 140 51' 42", an arc length of 9.08 feet and a chord
bearing N83002'00"W, for 9.05 feet to a point of intersection with a
non-tangent line; thence 500027 '22"E, for 6.50' feet; thence
N89019'48"W, parallel with ;3aid North line, a distance of 382.87
feet; thence S76044' 53"W, a distance of 57.73 feet; thence
S87033'00"W, a distance of 57.06 feet; thence N89019'48"W, parallel
wi th said North line, a distance of 126. 71 feet to said East right
of way line of U.S. Highway 19; thence N00051'16"E, along said East
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right of. way line, a distance of 67.00 feet to the POINT OF
BEGINNING.
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AFFIDAVIT TO AUTHORIZE AGENT
STATE OF FLORIDA
COUNTY OF ()-o.n..~e.-
THE GRAND BELLAGIO AT BA YW A TCH CONDOMINIUM ASSOCIATION, INC.,
a non-profit Florida corporation, being first duly sworn depose(s) and say(s):
1. THE GRAND BELLAGIO AT BA YW A TCH CONDOMINIUM
ASSOCIATION, INC., is the owner and record title holder of the property
described on Exhibit "A" attached hereto (the "Property").
2. That this Property constitutes a portion of the land for which a request for a
Community Development District is being applied for to the City Commission of
the City of Clearwater.
3. That the undersigned (haslhave) appointed W. Scott Callahan and Thomas A.
Cloud as (his/their) agent(s) to execute any permits or other documents necessary
to affect such permit.
4. That this affidavit has been executed to induce the City of Clearwater, Florida, to
consider and act on the above-described Property.
5.
That the undersigned authority hereby certifies that the foregoing is true and
correct.
.
THE GRAND BELLAGIO AT
BAYW A TCH CONDOMINIUM
ASSOCIATION, INC., a non-profit Florida
corporation
BY:~~ ~
Name: David W Schwarz
Title: President
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STATE OF FLORIDA
COUNTY OF (JVQ 1'\y ~...J... L,
<:t- "^1"r::.mQ~
The foregoing instrument was acknowledged before me this 1 y day of-nrty, 2005 by
David W Schwarz, President of The Grand Bellagio at Baywatch Condominium Association,
Inc., a non-profit Florida corporation, who is personally known to me or who has produced _
as identification. -
co~
Si~ature Oft~ h. .
J. ~c QY)
Printed Name of Notary
Commission Expires:
u:\wsc.cti<no o;recIar)'II1J7I04125J\AfflDA vrr AlTIHORIZE AGEIIT -1dI0ai0_doc
W. seem CALLAHAN
MV COMMISSION. CD amss
EXPIRES; JIIlUIIY 27, aooe
IlOIIdId Thill NolIrt ~ U~
.
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EXHU(rr "A"
DESCRIPTION 0.' PROPERTY
A certain S fOOl strip of land lying In Seclion 20, Township 29 SoUlh, Range 16 BISI, Plnellas Counly, Florida, as
described in OffICial Records Book 3528, Page 521 and being more particularly described as Collow;
Commence allho Soulhwell corner ofuld Section 20 IIld run Soulh 89'19'48" Ellt, along the South line of said Scctioo
20, a dislance of I 00.0 1 feel 10 the Poinl ofB eginnln8, loaving .aid Soulh line, Thence North 01'26'21" Bill, a distance
of5.00 feel; Thence South 89019'48" Eut, a dislanoo oC609.99 feeti Thenco Soulh 01 "26'21' Wesl, a distance of 5.00
feel; Thence North 89' 19'48" We.l. a dislance of 609.99 Ceotlo tho Point of Bog inning.
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