14-25RESOLUTION NO. 14 -25
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CLEARWATER AND
MAINSTREAM PARTNERS, VIII, LTD.; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Clearwater is desirous of entering into a development
agreement with MAINSTREAM PARTNERS, VIII, LTD.; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA:
Section1. The Development Agreement between the City of Clearwater and
MAINSTREAM PARTNERS, VIII, LTD., a copy of which is attached as Exhibit "A," is
hereby approved.
Section 2. This resolution shall take effect immediately upon adoption.
Section 3. The City Clerk is directed to submit a recorded copy of the
Development Agreement to the state land planning agency no later than fourteen (14)
days after the Development Agreement is recorded.
PASSED AND ADOPTED this I day of
Approved as to form:
/%4
Pamela K. Akin
City Attorney
ie.fu Gw? , 2014.
George N. Cretekos
Mayor
Attest:
1-4-Lilt 0_64- 06g-Q
Rosemarie Call
City Clerk
Resolution No. 14 -25
HDA2013 -08006 405 Coronado Dr. (PARCEL C)
HOTEL DENSITY RESERVE DEVELOPMENT AGREEMENT
THIS HOTEL DENSITY RESERVE DEVELOPMENT AGREEMENT
( "AGREEMENT ") is dated the day of , 2014, and entered into
between MAINSTREAM PARTNERS VIII, LTD., ( "Developer "), its successors and
assigns, and the CITY OF CLEARWATER, FLORIDA, a political subdivision of the
State of Florida acting through its City Council, the governing body thereof ( "City ").
RECITALS:
WHEREAS, one of the major elements of the City's revitalization effort is a
special area plan for the revitalization of Clearwater Beach adopted under the provisions
of the Florida Growth Management Act, Florida Statutes Chapter 163, Part II, and entitled
Beach by Design; and
WHEREAS, Florida Statutes Sections 163.3220 - 163.3243, the Florida Local
Government Development Agreement Act ( "Act "), authorize the City to enter into
binding development agreements with persons having a legal or equitable interest in real
property located within the corporate limits of the City; and
WHEREAS, under Section 163.3223 of the Act, the City has adopted Section 4-
606 of the City of Clearwater Community Development Code ( "Code "), establishing
procedures and requirements to consider and enter into development agreements; and
WHEREAS, Beach by Design proposed the development of hotel units to equalize
development opportunities on the beach and ensure Clearwater Beach remains a quality,
family resort community, and further provided for a limited pool of additional hotel units
( "Hotel Density Reserve ") to be made available for such mid -sized hotel projects; and
WHEREAS, the Developer owns 1.32 acres of real property ( "Property ") in the
corporate limits of the City, more particularly described on Exhibit "A" attached hereto
and incorporated herein; and
WHEREAS, the Developer desires to develop the Property by demolishing
existing hotel rooms and other uses in order to construct One Hundred Sixty -Six (166)
overnight accommodation units, meeting space for guest use, pool, new lobby and parking
with a minimum of 199 parking spaces (1.2 spaces /unit), generally conforming to the
architectural elevation dimensions shown in composite Exhibit `B" (collectively, the
improvements are the Project); and
WHEREAS, the Property has not previously acquired density from the Destination
Resort Density Pool; and
WHEREAS, upon completion the planned hotel will contain 166 overnight
accommodation units, which includes 100 units from the available Hotel Density Reserve
( "Reserve Units "); and
WHEREAS, the City has conducted such public hearings as are required by and in
accordance with Florida Statutes Section 163.3225, Code Sections 4 -206 and 4 -606, and
any other applicable law; and
WHEREAS, the City has determined that, as of the date of this Agreement, the
proposed project is consistent with the City's Comprehensive Plan and Land Development
Regulations; and
WHEREAS, at a duly noticed and convened public meeting on
, 2014, the City Council approved this Agreement and
authorized and directed its execution by the appropriate officials of the City; and
WHEREAS, approval of this Agreement is in the interests of the City in
furtherance of the City's goals of enhancing the viability of the resort community and in
furtherance of the objectives of Beach by Design; and
WHEREAS, Developer has approved this Agreement and has duly authorized
certain individuals to execute this Agreement on Developer's behalf.
STATEMENT OF AGREEMENT
In consideration of and in reliance upon the premises, the mutual covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto intending to be legally bound and in
accordance with the Act and Code, agree as follows:
SECTION 1. Recitals. The above recitals are true and correct and are a part of
this Agreement.
SECTION 2. Incorporation of the Act. This Agreement is entered into in
compliance with and under the authority of the Code and the Act, the terms of which as of
the date of this Agreement are incorporated herein by this reference and made a part of
this Agreement. Words used in this Agreement without definition that are defined in the
Act shall have the same meaning in this Agreement as in the Act.
SECTION 3. Property Subject to this Agreement. The Property described in
Exhibit "A" is subject to this Agreement ( "Property").
3.1 The Property currently has a land use designation of Resort Facilities High
and is zoned Tourist (T).
3.2. The Property is owned in fee simple or under contract to be owned in fee
simple by the Developer.
3.3 The Property is generally located at 405 Coronado Drive, Clearwater, FL
33767, as further described in Exhibit "A ".
SECTION 4. ,Scope of Project.
4.1 The Project shall consist of 166 overnight accommodation units. Of the
166 overnight accommodation units, 100 units shall be from the Hotel Density Reserve.
4.2 The Project shall include a minimum of 199 parking spaces (1.2 spaces
per unit), as defined in the Code.
4.3 The design of the Project, as represented in Exhibit `B ", is consistent with
Beach by Design.
4.4 The density of the Project shall be 126 units per acre. In no instance shall
the density of a parcel of land exceed 150 units per acre. The height of the Project shall be
100 feet measured from Base Flood Elevation, as defined in the Code. The maximum
building heights of the various character districts cannot be increased to accommodate
hotel rooms allocated from the Hotel Density Reserve.
SECTION 5. Effective Date/Duration of this Agreement.
5.1 This Agreement shall not be effective until this Agreement is properly
recorded in the public records of Pinellas County, Florida pursuant to Florida Statutes
Section 163.3239 and Code Section 4 -606.
5.2 Within fourteen (14) days after the City approves the execution of this
Agreement, the City shall record the Agreement with the Clerk of the Circuit Court for
Pinellas County. The Developer shall pay the cost of such recording. The City shall
submit to the Department of Economic Opportunity a copy of the recorded Agreement
within fourteen (14) days after the Agreement is recorded.
5.3 This Agreement shall continue in effect for ten (10) years unless earlier
terminated as set forth herein.
SECTION 6. Obligations under this Agreement.
6.1 Obligations of the Developer:
6.1.1 The obligations under this Agreement shall be binding upon and the
benefits of this Agreement shall inure to the Developer, its successors in interests or
assigns.
6.1.2 At the time of development of the Property, the Developer will
submit such applications and documentation as are required by law and shall comply with
the Code applicable at the time of building permit review.
6.1.3 The following restrictions shall apply to development of the
Property:
6.1.3.1 To retain the grant of Reserve Units provided for herein,
the Property and improvements located thereon shall be developed in
substantial conformance with the Conceptual Site Plan attached as Exhibit
"B ". Any modifications determined by the Community Development
Coordinator as either inconsistent with attached Exhibit `B" or
constituting a substantial deviation from attached Exhibit `B" shall
require an amendment to this Agreement in accordance with the procedures
of the Act and the Code, as necessary and applicable. Any and all such
approved and adopted amendments shall be recorded in the public records
of Pinellas County, Florida.
6.1.3.2 The Developer shall obtain appropriate site plan approval
pursuant to a Level One or Level Two development application within one
(1) year from the effective date of this Agreement in accordance with the
provisions of the Code, and shall then obtain appropriate permits and
certificates of occupancy in accordance with the provisions of the Code.
Nothing herein shall restrict Developer from seeking an extension of site
plan approval or other development orders pursuant to the Code or state
law. In the event that work is not commenced pursuant to issued permits,
or certificates of occupancy are not timely issued, the City may deny future
development approvals and /or certificates of occupancy for the Project,
and may terminate this Agreement in accordance with Section 10.
6.1.3.3 The Developer shall execute, prior to commencement of
construction, a mandatory evacuation/closure covenant, substantially in the
form of Exhibit "C ", stating that the accommodation use will close as soon
as practicable after a hurricane watch that includes Clearwater Beach is
posted by the National Hurricane Center.
6.1.4 Covenant of Unified Use. Prior to the issuance of the first building permit
for the Project, the Developer hereby agrees to execute the covenant of unified use and
development for the Project Site providing that the Project Site shall be developed and
used as a single project, the form of which covenant is attached as Exhibit "D "; provided
however, that nothing shall preclude the Developer from selling all or a portion of the
Developer's Property in the event that Developer determines not to construct the Project.
It is understood and agreed that, in the event that the Developer enters into the anticipated
covenant of unified use and development, and the Developer elects not to construct the
Project and notifies the City of its election in writing, and, alternatively, as of the date of
expiration, termination or revocation no rights of Developer remain or will be exercised to
incorporate the Hotel Density Reserve Units into the Project, the City shall execute and
deliver to the Developer a termination of such covenant of unified use and development
suitable for recording in the Public Records of Pinellas County, Florida.
6.1.5 Return of Units to Reserve Pool. Any Reserve Units granted to Developer
not timely constructed in conjunction with the Project shall be returned to the Hotel
Density Reserve and be unavailable to Developer for use on the Project.
6.1.6 Transient Use. A reservation system shall be required as an integral part
of the hotel use. There shall be a lobby /front desk area that must be operated as a typical
lobby /front desk area for a hotel would be operated. Access to all units must be
provided through a lobby and internal corridor. All units shall be available to the
public for overnight transient hotel occupancy at all times through the required hotel
reservation system. Occupancy in the hotel is limited to a term of less than one (1)
month or thirty -one (31) consecutive days, whichever is less. No unit in the hotel
shall be used as a primary or permanent residence.
6.1.7 No Full Kitchens. No unit shall have a complete kitchen facility as
that term is used in the definition of "dwelling unit" in the Code.
6.1.8 Inspection of Records. Developer shall make available for inspection to
authorized representatives of the City its books and records pertaining to each Hotel
Density Reserve unit upon reasonable notice to confirm compliance with these
regulations as allowed by general law.
6.1.9 Compliance with Design Guidelines. The Developer agrees to
comply with the Design Guidelines as set forth in Section VII. of Beach by Design.
6.1.10 Limitation on Amplified Music. Developer agrees that there shall be no
outdoor amplified music at the Hotel after 11:00 p.m. on Sunday through Thursday, or
after 12:00 a.m., midnight, on Friday and Saturday.
6.2 Obligations of the City.
6.2.1 The City shall promptly process site and construction plan
applications for the Property that are consistent with the Comprehensive Plan
and the Concept Plan and that meet the requirements of the Code.
6.2.2 The final effectiveness of the applications referenced in
Section
6.2.1 is subject to:
6.2.2.1 The provisions of Chapters 163 and 166, Florida Statutes,
as they may govern such amendments; and
6.2.2.2 The expiration of any appeal periods or, if an appeal is
filed, at the conclusion of such appeal.
6.2.3 Upon adoption of this Agreement, the Project shall receive
100 units from the Hotel Density Reserve as defined in Beach by Design,
contingent upon the provisions of Section 6.1.5.
SECTION 7. Public Facilities to Service Development. The following public
facilities are presently available to the Property from the sources indicated below.
Development of the Property will be governed by the concurrency ordinance provisions
applicable at the time of development approval. The requirements for concurrency as set
forth in Article 4, Division 9, of the Code, have been satisfied.
7.1 Potable water is available from the City. The Developer shall
be responsible for all necessary main extensions and applicable connection fees.
7.2 Sewer service is currently provided by the City. The Developer shall
be responsible for all necessary main extensions and applicable connection fees.
7.3 Fire protection from the City.
7.4 Drainage facilities for the Property will be provided by the Developer
at the Developer's sole expense.
7.5 The Project shall comply with the Metropolitan Planning
Organization's [MPO] or its successor's countywide approach to the application of
concurrency management for transportation facilities, and the transportation analysis
conducted for the Project shall include the following:
• Recognition of standard data sources as established by the MPO;
• Identification of level of service (LOS) standards for state and county roads
as established by the MPO;
• Utilization of proportional fair -share requirements consistent with
Florida
Statutes and the MPO model ordinance;
• Utilization of the MPO Traffic Impact Study Methodology; and
• Recognition of the MPO designation of "Constrained Facilities" as set forth
in the most current MPO Annual Level of Service Report.
7.6 All improvements associated with the public facilities identified
in Subsections 7.1 through 7.5 shall be completed prior to the issuance of any certificate
of occupancy.
7.7 Developer agrees to provide a cashier's check, a payment and
performance bond, or letter of credit in the amount of 115% of the estimated
costs of the public facilities and services, to be deposited with the City to secure
construction of any new public facilities and services required to be constructed by this
Agreement. Such construction shall be completed prior to issuance of a Certificate
of Occupancy for the Project.
SECTION 8. Required Local Government Approvals. The required
local government development approvals for development of the Property include,
without limitation, the following:
8.1 Site plan approval(s) and associated utility licenses, access, and right -
of- way utilization permits;
8.2 Construction plan approval(s);
6
8.3 Building permit(s);
8.4 Certificate(s) of occupancy; and
SECTION 9. Finding of Consistency. The City finds that development of
the Property is consistent with the terms of this Agreement and is consistent with the
City Comprehensive Plan and the Code.
SECTION 10. Terminatioq. If the Developer's obligations set forth in this
Agreement are not followed in a timely manner, as reasonably determined by the
City Manager, after notice to the Developer and an opportunity to be heard, existing
permits shall be administratively suspended and issuance of new permits suspended
until the Developer has fulfilled its obligations. Failure to timely fulfill its obligations
may serve as a basis for termination of this Agreement by the City, at the discretion
of the City and after notice to the Developer and an opportunity for the Developer to be
heard.
SECTION 11. Other Terms and Conditions. Except in the case of
termination, until ten (10) years after the date of this Agreement, the City may apply
laws and policies adopted subsequently to the Effective Date of this Agreement if the
City has held a public hearing and determined:
(a) They are not in conflict with the laws and policies governing the
Agreement and do not prevent development of the land
uses, intensities, or densities in the Agreement;
(b) They are essential to the public health, safety, or welfare, and
expressly state that they shall apply to a development that is subject
to a development agreement;
(c) They are specifically anticipated and provided for in this Agreement;
(d) The City demonstrates that substantial changes have occurred in
pertinent conditions existing at the time of approval of this
Agreement; or
(e) This Agreement is based on substantially inaccurate information
provided by the Developer
SECTION 12. Compliance with Law. The failure of this Agreement to
address any particular permit, condition, term or restriction shall not relieve the
Developer from the necessity of complying with the law governing such permitting
requirements, conditions, terms or restrictions.
SECTION 13. Notices. Notices and communications required or desired to be
given under this Agreement shall be given to the parties by hand delivery, by nationally
recognized overnight courier service such as Federal Express, or by certified mail,
return receipt requested, addressed as follows (copies as provided below shall be
required for proper notice to be given):
If to the Developer: Mainstream Partners VIII, LTD.
7
th
10165 NW 19
Street
Miami, FL 33172-
2529
With Copy to: Mr. Antonio Fernandez
Mainstream Partners VIII, LTD.
2552 22nd Ave.
St. Petersburg, FL
33713
If to City:
City of Clearwater, City Attorney
ATTN: City Manager,
112 South Osceola
Avenue
Clearwater, FL
33756
Properly addressed, postage prepaid, notices or communications shall be deemed
delivered and received on the day of hand delivery, the next business day after
deposit with an overnight courier service for next day delivery, or on the third (31-d) day
following deposit in the United States mail, certified mail, return receipt requested. The
parties may change the addresses set forth above (including the addition of a mortgagee
to receive copies of all notices), by notice in accordance with this Section.
SECTION 14. Assivnment
14.1 By the Developer:
14.1.1 Prior to the Commencement Date, the Developer may sell,
convey, assign or otherwise dispose of any or all of its right, title, interest and
obligations in and to the Project, or any part thereof, only with the prior written
notice to the City, provided that such party (hereinafter referred to as the
"assignee "), to the extent of the sale, conveyance, assignment or other
disposition by the Developer to the assignee, shall be bound by the terms of this
Agreement the same as the Developer for such part of the Project as is subject to
such sale, conveyance, assignment or other disposition.
14.1.2 If the assignee of the Developer's right, title, interest and
obligations in and to the Project, or any part thereof assumes all of the Developer's
obligations hereunder for the Project, or that part subject to such sale, conveyance,
assignment or other disposition, then the Developer shall be released from all such
obligations hereunder which have been so assumed by the assignee, and the City
agrees to execute an instrument evidencing such release, which shall be in
recordable form.
14.1.3 An assignment of the Project, or any part thereof, by the
Developer to any corporation, limited partnership, limited liability company,
8
general partnership, or joint venture, in which the Developer (or an entity under
common control with Developer) has either the controlling interest or
through a joint venture or other arrangement shares equal management rights
and maintains such controlling interest or equal management rights shall not be
deemed an assignment or transfer subject to any restriction on or approvals of
assignments or transfers imposed by this Agreement, provided, however, that
notice of such assignment shall be given by the Developer to the City not less
than thirty (30) days prior to such assignment being effective and the assignee
shall be bound by the terms of this Agreement to the same extent as would the
Developer in the absence of such assignment.
14.1.4 No assignee, purchaser, sublessee or acquirer of all or any part
of the Developer's rights and obligations with respect to any one Parcel shall in
any way be obligated or responsible for any of the Developer's obligations with
respect to any other Parcel by virtue of this Agreement unless and until such
assignee, purchaser, sublessee or acquire has expressly assumed the Developer's
such other obligations.
14.2 Successors and Assigns. The terms herein contained shall bind and inure
to the benefit of the City, and its successors and assigns, and the Developer and,
as applicable to the parties comprising Developer, their personal representatives,
trustees, heirs, successors and assigns, except as may otherwise be specifically provided
herein.
SECTION 15. Minor Non - Compliance. The Developer will not be deemed
to have failed to comply with the terms of this Agreement in the event such
noncompliance, in the judgment of the City Manager, reasonably exercised, is
of a minor or inconsequential nature.
SECTION 16. Covenant of Cooperation. The parties shall cooperate with
and deal with each other in good faith and assist each other in the performance
of the provisions of this Agreement and in achieving the completion of development of
the Property.
SECTION 17. Approvals. Whenever an approval or consent is required under
or contemplated by this Agreement such approval or consent shall not be unreasonably
withheld, delayed or conditioned. All such approvals and consents shall be requested
and granted in writing.
SECTION 18. Completion of Agreement. Upon the completion of
performance of this Agreement or its revocation or termination, a statement
evidencing such completion, revocation or termination shall be signed by the parties
hereto and recorded in the official records of the City.
SECTION 19. Entire Agreement. This Agreement (including any and all
Exhibits attached hereto all of which are a part of this Agreement to the same extent as
9
if such Exhibits were set forth in full in the body of this Agreement), constitutes the
entire agreement between the parties hereto pertaining to the subject matter hereof.
SECTION 20. Construction. The titles, captions and section numbers in this
Agreement are inserted for convenient reference only and do not define or limit the
scope or intent and should not be used in the interpretation of any section,
subsection or provision of this Agreement. Whenever the context requires or permits,
the singular shall include the plural, and plural shall include the singular and any
reference in this Agreement to the Developer includes the Developer's successors or
assigns. This Agreement was the production of negotiations between representatives
for the City and the Developer and the language of the Agreement should be given its
plain and ordinary meaning and should not be strictly construed against any party
hereto based upon draftsmanship. If any term or provision of this Agreement is
susceptible to more than one interpretation, one or more of which render it valid and
enforceable, and one or more of which would render it invalid or unenforceable, such
term or provision shall be construed in a manner that would render it valid and
enforceable.
SECTION 21. Partial Invalidity,. If any term or provision of this Agreement
or the application thereof to any person or circumstance is declared invalid or
unenforceable, the remainder of this Agreement, including any valid portion of the
invalid term or provision and the application of such invalid term or provision to
circumstances other than those as to which it is held invalid or unenforceable, shall
not be affected thereby and shall with the remainder of this Agreement continue
unmodified and in full force and effect. Notwithstanding the foregoing, if such
responsibilities of any party hereto, to the extent that the purpose of this Agreement or
the benefits sought to be received hereunder are frustrated, such party shall have the
right to terminate this Agreement upon fifteen (15) days written notice to the other
parties.
SECTION 22. Code Amendments. Subsequently adopted ordinances and
codes of the City which are of general application not governing the development of
land shall be applicable to the Property, and such modifications are specifically
anticipated in this Agreement.
SECTION 23. Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Florida.
SECTION 24. Counterparts. This Agreement may be executed in
counterparts, all of which together shall continue one and the same instrument.
SECTION 25. Amendment. This Agreement may be amended by mutual
written consent of the City and the Developer so long as the amendment meets the
requirements of the Act, applicable City ordinances, and Florida law.
IN WITNESS WHEREOF, the parties have hereto executed this Agreement
the date and year first above written.
10
In the Presence of: MAINSTREAM PARTNERS VIII, LTD.,
a Florida limited partnership
BY: MAINSTREAM GP, LLC,
its General Partner
BY: EDWARD W. EASTON & COMPANY,
INC., it Managing Member
By:
Print Name Edward W. Easton, President
Print Name
As to "Developer"
CITY OF CLEARWATER, FLORIDA
By:
Print Name: William B Home II,
City Manager
Print Name
As to "City"
Attest:
Rosemarie Call, CMC, City Clerk
Countersigned:
George N. Cretekos, Mayor
Approved as to Form:
Assistant City Attorney
11
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing Declaration was acknowledged before me this day of
, 2014, by Edward W. Easton, as President of Edward W. Easton &
Company, Inc., a Florida corporation, the Managing Member of Mainstream GP, LLC, a
Florida limited liability company, as General Partner of Mainstream Partners VIII, LTD a
Florida limited partnership, on behalf of the aforesaid entities. He is [ ] personally known
to me or has [ ] produced as identification.
Print:
Notary Public — State of Florida
My Commission Expires:
12
EXHIBIT "A"
PROJECT LEGAL DESCRIPTION
Parcel 5: Lot 1, Columbia Subdivision No. 4, According to the plat thereof as recorded in
Plat Book 27, page 50, of the Public Records of Pinellas County, Florida
Parcel 6: Lots 11 and 12, Columbia Subdivision No. 4, According to the plat thereof as
recorded in Plat Book 27, page 50, of the Public Records of Pinellas County, Florida; also,
beginning at the intersection of the high water mark of the Gulf of Mexico and the East and
West center line of Section 8, Township 29 South, Range 15 East; and run thence East
along the East and West Center line of said Section 8, 164.38 feet; thence South 1,573.94
feet; thence South 77 °25'30" East, 280 feet for a point of beginning; thence South
77 °25'30" East, 10 feet; thence South 12 °34'30" West, 50.87 feet; Thence North 77 °25'30"
West, 10 feet; Thence North 12 °34'30" East, 50.87 feet to a point of beginning, otherwise
described as Lot 1 -A of Columbia Subdivision No. 5, According to the plat thereof as
recorded in Plat Book 31, page 16, of the Public Records of Pinellas County, Florida.
Parcel 7: Lot 2, Columbia Subdivision No. 4, According to the plat thereof as recorded in
Plat Book 27, page 50, of the Public Records of Pinellas County, Florida.
Parcel 8: Parcel 5: Lots 5 and 6, Columbia Subdivision No. 4, According to the plat thereof
as recorded in Plat Book 27, page 50, of the Public Records of Pinellas County, Florida.
Parcel 9: Lots 3 and 4, Columbia Subdivision No. 4, According to the plat thereof as
recorded in Plat Book 27, page 50, of the Public Records of Pinellas County, Florida.
Containing 1.32 Acres, more or less.
13
EXHIBIT `B"
Conceptual Site Plans and Elevations
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RRaINNARY DESIGN
EXHIBIT "C"
COVENANT REGARDING HURRICANE EVACUATION
And DEVELOPMENT, USE AND OPERATION
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS ( "Declaration ") is
made as of the day of , 2014, by MAINSTREAM PARTNERS
VIII, LTD., a Florida limited liability company ( "Developer ").
Developer is the owner of fee simple title to the real property described in Schedule 1
attached hereto and made a part hereof (hereinafter, the ( "Real Property "). The City of
Clearwater, Florida (the "City "), has amended its Comprehensive Plan to designate Clearwater
Beach as a Community Redevelopment District pursuant to the Pinellas County Planning
Council Rules in order to implement the provisions of Beach by Design, a plan for the
revitalization of Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District (the
"Designation ") provides for the allocation of Hotel Density Reserve Units as an incentive for the
development of mid -size quality hotels. Pursuant to the Designation, the allocation of Hotel
Density Reserve Units is subject to compliance with a series of performance standards, including
a requirement that resorts containing a hotel developed with Hotel Density Reserve Units shall
be closed and all Guests evacuated from such hotels as soon as practicable after the National
Hurricane Center posts a hurricane watch that includes Clearwater Beach. The purpose of such
evacuation is to ensure that such a hotel is evacuated in advance of the period of time when a
hurricane evacuation would be expected in advance of the approach of hurricane force winds.
The City has granted, by City Council Resolution , passed and approved on
, 2014, Developer's application for Hotel Density Reserve Units pursuant to the
Designation, subject to Developer's compliance with the requirements of the Designation.
Developer desires for itself, and its successors and assigns, as owner, to establish certain rights,
duties, obligations and responsibilities with respect to the use and operation of the Real Property
in accordance with the terms and conditions of the allocation of the Hotel Density Reserve Units
to the City and the Designation, which rights, duties, obligations and responsibilities shall be
binding on any and all successors and assigns and will run with the title to the Real Property.
THEREFORE, in consideration of the covenants and restrictions herein set forth and to
be observed and performed, and in further consideration of the allocation of Hotel Density
Reserve Units to Developer, and other good and valuable consideration, the sufficiency of which
is hereby acknowledged, Developer hereby declares, covenants and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for the
benefit of Developer and its successors and assigns and shall be enforceable by them and also for
15
the benefit of the residents of the City and shall be enforceable on behalf of said residents by the
City Council of the City.
2. Covenant of Development, Use and Operation. Developer hereby covenants and
agrees to the development, use and operation of the Real Property in accordance with the
provisions of this Declaration.
2.1 Use. The use of the hotel on the Real Property is restricted as follows:
2.1.1 166 units, 100 of which are units allocated to Developer from the
Hotel Density Reserve, shall be used solely for transient occupancy of
one month or thirty -one (31) consecutive days or less, must be licensed as a
public lodging establishment and classified as a hotel, and must be operated
by a single licensed operator of the hotel. No unit shall be used as a
primary or permanent residence. Access to the units must be provided
through a lobby and internal corridor. A reservation system shall be
required as an integral part of the hotel use and there shall be a lobby /front
desk area that must be operated as a typical lobby /front desk area for a
hotel would be operated. All units shall be required to be submitted to a
rental program requiring the units to be available for members of the public
as overnight hotel guests on a transient basis at all times. No unit shall
have a complete kitchen facility as that term is used in the definition of
"dwelling unit" in the Code. Developer shall make available for inspection
to authorized representatives of the City its books and records
pertaining to each unit upon reasonable notice to confirm compliance with
these regulations as allowed by general law. The Developer agrees to
comply with the Design Guidelines as set forth in Section VII of Beach by
Design.
2.1.2 As used herein, the terms "transient occupancy," "public lodging
establishment," "hotel ", and "operator" shall have the meaning given to
such terms in Florida Statutes Chapter 509, Part I.
2.2 Closure of Improvements and Evacuation. The Hotel developed on the Real
Property shall be closed as soon as practicable upon the issuance of a hurricane watch by the
National Hurricane Center, which hurricane watch includes Clearwater Beach, and all Hotel
guests, visitors and employees other than emergency and security personnel required to protect
the resort, shall be evacuated from the Hotel as soon as practicable following the issuance of said
hurricane watch. In the event that the National Hurricane Center shall modify the terminology
employed to warn of the approach of hurricane force winds, the closure and evacuation
provisions of this Declaration shall be governed by the level of warning employed by the
National Hurricane Center which precedes the issuance of a forecast of probable landfall in order
to ensure that the guests, visitors and employees will be evacuated in advance of the issuance of
a forecast of probable landfall.
16
3 Effective Date. This Declaration shall become effective upon issuance of all building
permits required to build the project ( "Project ") and Developer's commencement of construction of the
Project, as evidenced by a Notice of Commencement for the Project. This Declaration shall expire and
terminate automatically if and when the allocation of Reserve Units to the Developer expires or is
terminated.
4 Governing Law. This Declaration shall be construed in accordance with and governed
by the laws of the State of Florida.
5 Recording. This Declaration shall be recorded in the chain of title of the Real Property
with the Clerk of the Courts of Pinellas County, Florida.
6 Attorneys' Fees. Developer shall reimburse the City for any expenses, including
reasonable attorneys' fees, which are incurred by the City in the event that the City determines that it is
necessary and appropriate to seek judicial enforcement of this Declaration and the City obtains relief,
whether by agreement of the parties or through order of a court of competent jurisdiction.
7 Severability. If any provision, or part thereof, of this Declaration or the
application of this Declaration to any person or circumstance will be or is declared to any extent to be
invalid or unenforceable, the remainder of this Declaration, or the application of such provision or portion
thereof to any person or circumstance, shall not be affected thereby, and each and every other
provision of this Declaration shall be valid and enforceable to the fullest extent permitted by law.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, Developer has caused this Declaration to be executed this
day of , 2014.
In the Presence of: MAINSTREAM PARTNERS VIII, LTD.,
a Florida limited partnership
BY: MAINSTREAM GP, LLC,
its General Partner
BY: EDWARD W. EASTON & COMPANY, INC.,
its Managing Member
By:
Print Name Edward W. Easton, President
Print Name
As to "Developer"
CITY OF CLEARWATER, FLORIDA
By:
Print Name: William B Home II,
City Manager
Print Name
As to "City"
Attest:
Rosemarie Call, CMC, City Clerk
Countersigned:
George N. Cretekos, Mayor
Approved as to Form:
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing Declaration was acknowledged before me this day of
2014, by Edward W. Easton, as President of Edward W. Easton & Company, Inc., a Florida
corporation, the Managing Member of Mainstream GP, LLC, a Florida limited liability company, as
General Partner of Mainstream Partners VIII, LTD, a Florida limited partnership, on behalf of the
aforesaid entities. He is [ ] personally known to me.
Print:
Notary Public — State of Florida
My Commission Expires:
SCHEDULE A
Parcel 5: Lot 1, Columbia Subdivision No. 4, According to the plat thereof as recorded in Plat
Book 27, page 50, of the Public Records of Pinellas County, Florida
Parcel 6: Lots 11 and 12, Columbia Subdivision No. 4, According to the plat thereof as recorded in
Plat Book 27, page 50, of the Public Records of Pinellas County, Florida; also, beginning at the
intersection of the high water mark of the Gulf of Mexico and the East and West center line of
Section 8, Township 29 South, Range 15 East; and run thence East along the East and West
Center line of said Section 8, 164.38 feet; thence South 1,573.94 feet; thence South 77 °25'30"
East, 280 feet for a point of beginning; thence South 77 °25'30" East, 10 feet; thence South
12 °34'30" West, 50.87 feet; Thence North 77 °25'30" West, 10 feet; Thence North 12 °34'30" East,
50.87 feet to a point of beginning, otherwise described as Lot 1 -A of Columbia Subdivision No. 5,
According to the plat thereof as recorded in Plat Book 31, page 16, of the Public Records of
Pinellas County, Florida.
Parcel 7: Lot 2, Columbia Subdivision No. 4, According to the plat thereof as recorded in Plat
Book 27, page 50, of the Public Records of Pinellas County, Florida.
Parcel 8: Parcel 5: Lots 5 and 6, Columbia Subdivision No. 4, According to the plat thereof as
recorded in Plat Book 27, page 50, of the Public Records of Pinellas County, Florida.
Parcel 9: Lots 3 and 4, Columbia Subdivision No. 4, According to the plat thereof as recorded in
Plat Book 27, page 50, of the Public Records of Pinellas County, Florida.
Containing 1.32 Acres, more or less.
EXHIBIT "D"
COVENANT OF UNIFIED USE
PLEASE RETURN RECORDED DOCUMENT TO:
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Covenant ") is executed this, day of
2014, by ( "Developer ").
WITNESSETH:
WHEREAS, Developer is the owner of the real property legally described on Schedule
"A" attached hereto and incorporated herein by reference (the "Real Property "); and
WHEREAS, Developer and the City of Clearwater, Florida (the "City ") are parties to that certain
H otel Density Reserve Development Agreement dated the day of , 2014
( "Agreement "), pursuant to which the City has agreed that Developer may develop and construct upon the
Real Property a hotel project as described in the Agreement (the "Project "); and
WHEREAS, Developer intends to develop and operate the Real Property for a unified use, as
more particularly described in this Covenant.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Developer
does hereby agree that, effective as of the date on which Developer receives all permits required to
construct the Project and Developer commences construction thereof, as evidenced by a Notice of
Commencement for the Project, the Real Property shall be developed and operated as a limited - service
hotel project, as described in the Agreement. The restrictions set forth in the preceding sentence shall
expire automatically when and if Developer's allocation of additional hotel units (as defined in the
Agreement) expires or is terminated. Nothing in this Agreement shall require Developer to develop the
Project or restrict Developer's ability to sell, assign, transfer or otherwise convey its right in and to
the Real Property or any portion or portions thereof to unrelated third - parties. Developer agrees that the
City shall have the right to enforce the terms and conditions of this Agreement.
Notwithstanding the foregoing, all Hotel Units may be operated by a single hotel operator.
IN WITNESS WHEREOF, Developer has caused this Agreement to be executed this
day of , 2014.
In the Presence of: MAINSTREAM PARTNERS VIII, LTD.,
a Florida limited partnership
BY: MAINSTREAM GP, LLC,
its General Partner
BY: EDWARD W. EASTON & COMPANY, INC.,
its Managing Member
By:
Print Name Edward W. Easton, President
Print Name
As to "Developer"
Print Name:
Print Name
As to "City"
CITY OF CLEARWATER, FLORIDA
By:
William B Home II,
City Manager
Attest:
Rosemarie Call, CMC, City Clerk
Countersigned:
George N. Cretekos, Mayor
Approved as to Form:
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing Declaration was acknowledged before me this day of
2014, by Edward W. Easton, as President of Edward W. Easton & Company, Inc., a Florida
corporation, the Managing Member of Mainstream GP, LLC, a Florida limited liability company, as
General Partner of Mainstream Partners VIII, LTD a Florida limited partnership, on behalf of the
aforesaid entities. He is [ ] personally known to me.
Print:
Notary Public — State of Florida
My Commission Expires:
SCHEDULE A
Parcel 5: Lot 1, Columbia Subdivision No. 4, According to the plat thereof as recorded in Plat
Book 27, page 50, of the Public Records of Pinellas County, Florida
Parcel 6: Lots 11 and 12, Columbia Subdivision No. 4, According to the plat thereof as recorded in
Plat Book 27, page 50, of the Public Records of Pinellas County, Florida; also, beginning at the
intersection of the high water mark of the Gulf of Mexico and the East and West center line of
Section 8, Township 29 South, Range 15 East; and run thence East along the East and West
Center line of said Section 8, 164.38 feet; thence South 1,573.94 feet; thence South 77 °25'30"
East, 280 feet for a point of beginning; thence South 77 °25'30" East, 10 feet; thence South
12 °34'30" West, 50.87 feet; Thence North 77 °25'30" West, 10 feet; Thence North 12 °34'30" East,
50.87 feet to a point of beginning, otherwise described as Lot 1 -A of Columbia Subdivision No. 5,
According to the plat thereof as recorded in Plat Book 31, page 16, of the Public Records of
Pinellas County, Florida.
Parcel 7: Lot 2, Columbia Subdivision No. 4, According to the plat thereof as recorded in Plat
Book 27, page 50, of the Public Records of Pinellas County, Florida.
Parcel 8: Parcel 5: Lots 5 and 6, Columbia Subdivision No. 4, According to the plat thereof as
recorded in Plat Book 27, page 50, of the Public Records of Pinellas County, Florida.
Parcel 9: Lots 3 and 4, Columbia Subdivision No. 4, According to the plat thereof as recorded in
Plat Book 27, page 50, of the Public Records of Pinellas County, Florida.
Containing 1.32 Acres, more or less.