DVA2014-06001A483 MAN DALAY
DVA20'! 4-06001 A
1
AMl Pelican Walk Amendment
Zoning:
AVE
Atlas #:
ENT OF PROPERTY
This Development Agreement (the "Agreement") is made as of this day of
, 2015, by and between THE CITY OF CLEARWATER, FLORIDA, a municipal
corporation and political subdivision of the State of Florida (the "City"), and PV-PELICAN
WALK, LLC, a Florida limited liability company ("Paradise"):
WITNESSETH:
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,(2014) 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, the City of Clearwater has adopted a community revitalization plan entitled
Beach by Design;
WHEREAS, Beach by Design contemplates the provision of additional off-street parking
on Cleaxwater Beach in support of revitalization of the retail/restaurant district, the East Shore
marina district, the North Mandalay area, to promote resort development, and to promote beach
patronage;
WHEREAS, on days of peak beach patronage, there is a serious shortfall in the
availability of public parking on Clearwater Beach;
WHEREAS, the City of Clearwater has exhaustively analyzed the opportunities for
providing additional parking on Clearwater Beach;
WHEREAS Paradise and Pelican Walk Investors, LLC are the owners of certain real
property on Clearwater Beach popularly known as the Pelican Walk Shopping Center and the
Pelican Walk parking lot. Pelican Walk Investors, LLC has executed a limited joinder in this
Development Agreement as set forth in Exhibit "A" and incorporated herein by reference;
WHEREAS, Beach by Design identifies the existing surface parking lot of the Pelican
Walk Shopping Center as the preferred site for a parking garage for North Mandalay and the
Retail and Restaurant Districts ("Parking Garage Site");
WHEREAS, the City of Clearwater has conducted various studies of the feasibility of
constructing additional off-street parking and evaluated several different sites on North Beach;
WHEREAS, Paradise intends to develop and construct on what is currently the Pelican
Pelican Walk Parking Gatage Development Agreement
Walk Shopping Center and the Parking Garage Site a retail/commercial project, including a
parking garage containing approximately 702 total parking spaces, (collectively, the "Pro'ect"
on the property more particularly described in Exhibit "B" attached hereto (the "Pronertv").
WHEREAS, the Property, which includes the current Pelican Walk Shopping Center
property described in Exhibit "B-1" ("Existing Retail Center"), shall be and will be submitted to
the condominium form of ownership pursuant to Chapter 718 of the Florida Statutes and
condominium documents shall be prepared. The condominium shall contain units to be utilized
for public and/or private parking.
WHEREAS, Paradise proposes to sell a 450 parking space condominium unit to the City
("Parking Unit Two"or "PU-2") to facilitate the provision of additional off-street parking on
Clearwater Beach;
WHEREAS, the City and Paradise have worked diligently to identify a financially
feasible approach to the construction of a new parking garage on the Parking Garage Site;
WHEREAS, the City employed professionals experienced in the financing of parking
garages to evaluate the economic feasibility of various options for a new parking garage on the
Parking Garage Site;
WHEREAS, the economic feasibility analysis prepared for the City revealed that the
development of the Parking Garage as proposed by Paradise and the City's purchase of PU-2 is
financially feasible and will generate sufficient revenue for the City to own and operate PU-2.
WHEREAS, on , 2015, the City and Paradise entered into an Amended
Purchase Agreement for the purchase and sale of PU-2 which is contingent upon Community
Development Board and City Council approval of this Development Agreement among other
things. A true and accurate copy of the Amended Purchase Agreement is attached hereto as
Exhibit "C" and is incorporated herein in its entirety.
WHEREAS, Paradise represents that the parking garage proposed by Paradise is not
economically viable without the City's purchase of PU-2;
WHEREAS, the City has determined that the construction of a new parking garage on
the Parking Garage Site with at least 450 parking spaces available to the public will serve the
best interests of the citizens of the City;
WHEREAS, the provision of additional public parking available is a valid public
purpose;
WHEREAS, the City understands that Paradise is willing to undertake the financial risk
of designing, constructing and operating the proposed Parking Garage and that Paradise is
relying upon the Amended Purchase Agreement attached hereto as Exhibit "C"
WHEREAS, at a duly called public meeting on the day of , 2015, the
Community Development Board approved the design of the Parking Garage and recommended
Pelican Walk Parlang Garage Development Ag�reement
that the City Council approve this Amended Development Agreement;
WHEREAS, at a duly called public meeting on the day of , 2015, the
City Council approved this Amended Development Agreement, and authorized and directed its
execution by the appropriate officials of the City; and
WHEREAS, the appropriate members of Paradise with authority have approved this
Agreement and have authorized certain individuals to execute this Agreement on its behalf.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
ARTICLE 1 DEFINITIONS.
1.01 Definitions. The terms defined in this Article 1 shall have the following meanings
except as herein otherwise expressly provided:
1. "Agreement" means this Amended Development Agreement including any
Exhibits and any amendments thereto.
2. "Beach by Design" or "Plan" means the strategic redevelopment plan for
Clearwater Beach adopted February 2001 as amended through 2015.
3. "City" means the City of Clearwater, Florida, a Florida municipal corporation.
4. "City Council" means the governing body of the City.
5. "City's Representative" means that person designated by the City to represent the
City during the design and construction of the proposed Parking Garage.
6. "Commencement Date" means the date on which Paradise commences or causes a
Contractor to commence site work related to the Pelican Walk Parking Garage
which date shall occur on or before , 2416.
7. "Commence construction" means the start of ineaningful physical development of
a material part of the Parking Garage building.
8. "Construction Completion Date" means the date a final certificate of occupancy is
issued by the City for the Pelican Walk Parking Garage.
9. "Effective Date" means the date of approval and execution of this Agreement as
provided in Section 12.14.
10. "Exhibits" means those agreements, diagrams, drawings, specifications,
instruments, forms of instruments, and other documents attached hereto and
designated as exhibits to, and incorporated in and made a part of, this Agreement.
Pelican Walk Pazking Garage Development Agreement
1 l. "Parking Garage Site" means the land on which the existing Pelican Walk surface
parking lot and associated storm water management facilities are located which is
located immediately to the east of the existing Pelican Walk Shop�ing Center and
fronts on Poinsettia Avenue, as more particularly described in Exhibit B.
12. "Pelican Walk Parking Garage" means a parking garage to be constructed on the
Parking Garage Site" containing not less than six hundred and twenty (620) off-
street parking spaces.
13. "Plans and Specifications" means the schematic, preliminary and final
construction plans for the Pelican Walk Parking Garage.
14. "Unavoidable Delay" means a delay as described in Article 15 hereof.
1.02 Use of Words and Phrases. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, the singular shall include the plural as well as the
singular number, and the word "person" shall include corporations and associations,
including public bodies, as well as natural persons. "Herein," "hereby," "hereunder,"
"hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this
Agreement and not solely to the particular portion thereof in which any such word is
used.
1.03 Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (2014),
as amended from time to time.
ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT.
2.01 Finding of Public Purpose and Benefit. The proposed Project, and the design,
construction, completion and operation of the Project, and each part thereof, is hereby found by
the City: (1) to be consistent with and in furtherance of the objectives of the Land Development
Regulations of the City of Clearwater, (2) to conform to the provisions of Applicable Laws, (3)
to be in the best interests of the citizens of the City, (4) to further the purposes and objectives of
the City, (5) to further the public interest on Clearwater Beach, and (6) to implement Beach by
Design.
2.02 Purpose of Agreement. The purpose of this Agreement is to further the implementation
of Beach by Design by providing for additional public parking on Clearwater Beach to enhance
the quality of life, increase employment and improve the aesthetic and useful enjoyment of
Clearwater Beach, all in accordance with and in furtherance of the Land Development
Regulations of the City of Clearwater and as authorized by and in accordance with the provisions
of Florida law.
2.03 Scope of the Project.
1. Descri tion. The Project shall include a commercial parking garage, private and
Pelican Waik Parl�ng Garage Development Ag�eement
public parking, commercial and retail uses and appropriate accessory uses and
shall be developed in substantial conformity with the Conceptual Plans, copies of
which are attached as E�ibit "D" hereto.
2. Formation of the Condominium. Paradise shall create a six (6) unit commercial
condominium for the Project and Existing Retail Center. Retail Unit One (RU-1)
shall consist of the Existing Retail Center described in Exhibit B-1 and
improvements thereon, Retail Unit Two (RU-2) shall consist of the new
approximately 11,000 square foot retail space with no common elements except
for exterior walls excluding doors and plate glass, Parking Unit Ground (PU-G)
shall consist of 28 parking spaces on the ground floor, Parking Unit One (PU-1)
shall consist of 114 parking spaxes on the first and second floors, Parking Unit
Two (PU-2) shall consist of the next lowest 450 parking spaces to be acquired
by the City pursuant to the Amended Purchase Agreement plus any additional
spaces acquired by the City pursuant to its hereinafter described option, and
Parking Unit Three (PU-3) shall consist of the remaining 110 spaces (reduced by
the number of spaces acquired by the City pursuant to its option, right of
purchase or right of first refusal). All development rights remaining on the
parking lot parcel shall be retained by RU-2 and be available for transfer (TDR)
to another site as permitted by law. The available development rights retained in
RU-2 shall be calculated based upon the original unified parcel configuration,
which included the parking lot parcel and the Pelican Walk Shopping Center
parcel. PU-G, PU-1, and PU-3 may be divided into multiple units. Paradise shall
submit the Property, including the Existing Retail Center, to the condominium
form of ownership pursuant to Chapter 718 of the Florida Statutes. The
condominium documents shall be in a in a form to be approved by City with a
consent or joinder from any lender or lienholder or any other party having any
record interest in any mortgage or lien encumbering the interest in the Property
as required by Section 718.104(3) of the Florida Statutes. It is anticipated that the
maintenance fees of the condominium will be allocated between the Units on an
equitable basis mutually agreed upon by Paradise and City based on the
anticipated maintenance and costs associated with the different units with the
understanding that all improvements on RU-le will be maintained by the owner
of RU-1 and the owner of RU-lshall control the improvements made within said
Unit.. Cost of utilities shall be segregated to the Unit receiving service and not be
a common expense, where possible. Prior to the City's purchase of PU-2, the
condominium documents, once approved by the City, shall not be materially
modified or amended without the prior written consent of the City, which consent
shall not be unreasonably withheld.
3. Public Parkin� Unit/Spaces Which Mav Be Leased bv Paradise The charge to
the public for those Parking Spaces/LTnits not being acquired by the City shall be
limited and restricted as follows: PU-G and PU-1, shall consist of 142 spaces
that may be apportioned by Paradise as leased parking, hourly parking, or both.
PU-3 shall consist of 110 spaces that may be apportioned by Paradise as leased
Pelican Walk Parlflng Garage Development Agreement
parking, hourly parking, or both. Paradise agrees to submit a commercially
reasonable parking management plan for the operation of PU-G, PU-1, and PU-3
as a condition of closing. Any spaces within PU-G, PU-1, and PU-3 shall not be
leased for an amount less than 50% of the then current monthly space rental
charge charged by the City for parking spaces in PU-2. This restriction is limited
to Paradise's monthly rentals only.
2.04 Cooperation of the Parties. The City and Paradise recognize that the successful
development and operation of the Parking Garage is dependent upon continued
cooperation of the City and Paradise, and each agrees that it shall act in a reasonable
manner hereunder, provide the other party with complete and updated information from
time to time, with respect to the conditions such party is responsible for satisfying
hereunder and make its good faith reasonable efforts to ensure that such cooperation is
continuous, the purposes of this Agreement are carried out to the full extent
contemplated hereby and the Parking Garage is designed, constructed, completed and
operated as provided herein.
ARTICLE 3. REGULATORY PROCESS.
3.01 Land Development Regulations.
Land Use Desi ation. The Parking Garage Site is located within the Tourist
District as provided in the City's Land Development Regulations.
2. Amendments to Land Development Regulations The City's current Land
Development Regulations shall govern the development of the Project for the
duration of this Agreement. 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, subject to the terms and conditions of this
Agreement.
3.02 Development Approvals and Permits.
Applications for Development A proval Paradise shall prepare and submit to the
appropriate governmental authorities, including the City, applications for all
necessary Permits for the Parking Garage, and shall bear all costs of preparing
such applications, applying for and obtaining such permits, including payment of
any and all applicable application, inspection, regulatory and impact fees or
charges, except as otherwise provided in this Agreement. A list of all permits and
approvals required to implement the provisions of this Agreement is attached as
Exhibit "E". The failure of this Agreement to address a particular permit,
condition, term or restriction shall not relieve the Developer of the necessity of
complying with the law governing said permitting requirements, conditions, terms
or restrictions.
Pelican Walk Parlflng Garage Development Agreement
2.Schedule. A Project Development Schedule is attached to this Agreement as Exhibit
"F" that identifies specific tasks to be completed through the entire Project and the
proposed date for completion.
3. Cit Coo eration and Assistance. The City shall cooperate with Paradise with
regard to all necessary approvals and or permits required for the construction,
completion and opening for business of the Parking Garage which may be
required from an agency of government other than the City. If requested by
Paradise and authorized by law, the City will join in any application for any
permit or approval, or, alternatively, recommend to and urge any governmental
authority to which application for any permits has been made that such permit or
approval to issue or approve the requested permit or approval, to the extent that
the work covered by such Permit(s) is not in violation of the terms of this
Agreement.
4. Citv Authoritv Preserved. The City's duties, obligations, or responsibilities under
any section of this Agreement, specifically including, but not limited to, this
Section 3.02, shall not affect the City's right, duty, obligation, authority and power
to act in its governmental or regulatory capacity in accordance with applicable
laws, ordinances, codes or other building regulations. Notwitj�standing any other
provision of this Agreement, any required permitting, licensing or other
regulatory approvals by the City shall be subject to the established procedures and
requirements of the City with respect to review and permitting of a project of a
similar or comparable nature, size and scope. In no event shall the City, due to
any provision of this Agreement, be obligated to take any action concerning
regulatory approvals except through its established processes and in accordance
with applicable provisions of law.
3.03 Not a Development Order or Permit. The City and Paradise hereby acknowledge,
agree and represent that this Agreement is not intended to be and should not be
construed or deemed to be a"development order" or "development permit" within the
meaning of those terms in Section 163.3164, Florida Statutes.
ARTICLE 4. PLANS AND SPECIFICATIONS.
4.01 Plans and Specifications.
1. Responsibilitv for Preparation of Plans and Specifications Paradise shall be
responsible for and shall pay the cost of preparing the site plan and schematic,
preliminary, and final construction plans for the proposed Parking Garage.
During the design process, Paradise agrees that the City's Representative shall
have access to and a right to review and approve all phases of design and
construction processes.
Pelican Walk Parlflng Garage Development Agreement
2. Approval of Plans and Specifications for PU-2. The City has previously
approved the Conceptual Plans in its regulatory capacity. Exhibit "G"
attached to this Agreement sets forth the City Standards for PU-2 to be owned
by the City (the "Parking Unit). In order to ensure that the design of the
Parking Unit will meet the City's standards, the Plans and Specifications for the
Project shall be submitted to the City for review and comment prior to the
submission of any application for a building permit, other than a foundation
permit. The City's review of the Plans and Specifications hereunder in its
proprietary (i.e., non-regulatory) capacity shall be limited to compliance by the
Parking Unit guidelines attached hereto as Exhibit "G". The City shall notify
the Developer in writing within thirty (30) days following receipt that the Plans
and Specifications have or have not been approved, and in the case of
disapproval, the specific reason(s) for such disapproval. If the Plans and
Specifications submitted to the City by the Developer substantially comply
with this Agreement and have not materially changed from the Conceptual
Plans in a manner which causes the Parking Unit to no longer conform to the
City Parking Garage Standards, the City shall approve the Plans and
Specifications as submitted. The City's failure to respond to the Developer
within said 30-day period shall be deemed approval.
3. Character and Qualit� The City and Paradise agree that the proposed Parking
Garage shall be designed, constructed, maintained and operated in a manner
consistent with other first class or high quality parking garages in the Tampa Bay
region. The City and Paradise further agree that the Parking Garage will be
designed and constructed in a manner which will ensure that the Parking Garage
has a positive impact on the appearance and community character of Clearwater
Beach. The City acknowledges that the conceptual plans for the Parking Garage
attached hereto as Exhibit "D" satisfy the requirements of this section.
4. Useful Life. The City and Paradise agree that the Parking Garage will be
designed and constructed so as to have a useful life of not less than forty (40)
years.
5. Use of Oualified Professionals Paradise shall retain qualified professionals to
prepare the Plans and Specifications and shall cause such professionals to prepare the
Plans and Specifications.
ARTICLE 5. PARADISE OBLIGATIONS.
5.01 Financing for Parking Garage. Paradise shall provide City with evidence to the City's
satisfaction of Paradise having obtained financing adequate to construct the Project and
Paradise's lender shall have entered into a subordination/non-disturbance/tri-party agreement
with City and Paradise as described hereinafter below. The Developer covenants and agrees that
Pelican Walk Parl�ng Garage Development Agreement
the Project Financing documents shall include a provision which provides that in the event any
Project Financing secured by the Parking Unit shall become due and payable by maturity or
acceleration, the Project Lender shall give written notice thereof to the City by certified mail,
return receipt requested, or by overnight courier or by hand deliver. Such notice from the Project
Lender to the City shall state the basis of the default by the Developer and shall include copies of
any pleadings in any proceeding instituted by the Project Lender(s) incident thereto.
5.02 Construction of the Project.
1. Commencement. Paradise shall commence construction of the Parking Garage in
accordance with the Plans and Specifications for the Parking Garage within six
(6) months after the Effective Date and shall thereafter diligently pursue
construction to completion within eighteen (18) months of the Effective Date,
subject to extensions for Unavoidable Delays.
2. Pavment of Contractors and Suppliers Paradise shall be responsible for all on-site
costs relative to the development of the Project, including the Parking Unit.
Paradise agrees to promptly pay, or arrange to be paid, all moneys due and legally
owing to all persons or organizations doing any work or furnishing any materials,
fuel, machinery or supplies for the design and construction of the Parking Garage.
3. Maintenance of Construction Site. During the construction of the Parking Garage,
Paradise shall, at its own expense, keep the Parking Garage Site in good and clean
order and condition.
5.03 Subordination/Non-Disturbance/Tri-Party Agreement. City shall be provided upon
the filing of any lien on the Property with a subordination/non-disturbance/tri-party
agreement from any mortgagee or lien holder having a lien or mortgage on the Property
recognizing the City's rights under this Agreement and agreeing to the City's and
Paradise's ability to enforce this Agreement and City's rights hereunder in the event of a
default in any loan, lien or mortgage encumbering the Property or any default in this
Agreement. The subordination/non-disturbance/tri-party agreement shall provide, at a
minimum, that, in the event that such mortgagee or lien holder succeeds to the interest of
Paradise as owner of the Property, such mortgagee or lien holder shall have no
obligation nor have any liability with respect to the erection and/or completion of the
Pelican Walk Parking Garage, including, but not limited to completing the Parking Unit
contemplated to be conveyed to the City; provided, however, the City is permitted to
terminate this Agreement if the mortgagee or lien holder does not complete the
construction obligations of Paradise, subject to any notice and or cure rights as provided
herein. In addition, the subordination/non-disturbance/tri-party agreement shall provide
that the City's option to acquire additional contiguous spaces and the City's right of first
refusal to acquire spaces which Paradise is offering to sell to unrelated third parties shall
both be subordinate and inferior to the mortgagee's mortgage lien encumbering the
Pelican Walk Parlflng Garage Development Agreement
Property and the City's option and right of first refusal rights shall not apply to the
mortgagee or lien holder in the event such mortgagee or lien holder seeks possession of
the Property through foreclosure, deed in lieu or such other similar proceedings. The
subordination/non-disturbance/tri-party agreement shall be recorded and be binding on
and run to the benefit of any successors or assigns of the parties. A memorandum of this
Agreement shall be placed of record upon the execution of this Agreement.
5.04 Operation of Parking Garage. Prior to the purchase of PU-2 by the City, Paradise
agrees and covenants that the Parking Garage shall operate on the following terms and
conditions:
l. Open to the Public. PU-2 of the Parking Garage shall be available to the general
public, including the tenants and partners of the Pelican Walk Shopping Center,
on an equal, first come, first served basis. For the purposes of this Agreement,
equal, first come, first serve means that each and every parking space will
available for use by the public at all times when the Parking Garage is open, and
that at least four hundred and fifty (450) parking spaces shall be unrestricted (no
reserved parking) within PU-2at all times.
2. Hours of Operation. PU-2 shall be open for public parking 24 hours per day
seven days per week.
3. Operation of PU-G PU-1 and PU-3 PU-G and PU-1 shall consist of 142 parkng
spaces . PU-3 shall consist of 110 parking spaces . Any parking spaces within
PU-G, PU-1, and PU-3 shall not be leased for an amount less than 50% of the
then current monthly space rental charge charged by the City for parking spaces
in PU-2 . This restriction is limited to Paradise's monthly rentals only.
ARTICLE 6. CITY OBLIGATIONS.
6.01 Acquisition of PU-2. As provided in the Amended Purchase Agreement attached as
Exhibit "C", City shall acquire PU-2 consisting of 450 contiguous Parking Spaces which
shall materially meet the City's Parking Garage guidelines as provided in E�ibit "G".
Such Unit may be acquired at a cost per space as set forth in the Purchase Agreement
("Parking Unit") with the City having the option to acquire additional contiguous Spaces
at a cost of $25,144 per space provided City exercises this option prior to final project
design approval or August 15, 2014, whichever shall first occur. After August 15, 2014,
until Closing the City shall still have the right to purchase additional spaces only if the
Paradise is offering to sell spaces to third parties, provided, however, the cost per space
shall be at the rate or $25,144.00 per space. After closing, the City shall have a right of
first refusal to acquire spaces which the Paradise is offering to sell to unrelated third
parties, provided, however, the cost to the City per space shall be the same as the third
party has offered. City shall be provided, within ten (10) days of execution of any third
party offer for spaces, a copy of the proposed third party offer for the parking space(s)
and the City shall have forty-five (45) days after receipt of the same within which to
Pelican Walk Parldng Garage Development Agreement
match the offer from the third party and closing will be within thirty (30) days thereafter.
Provided, however, City shall not be required to close on such additional spaces prior to
the City acquiring the Parking Unit with the 450 Parking Spaces.
In terms of City's obligation to pay the Purchase Price, the City covenants and agrees to
appropriate in its annual budget, by amendment, if required, and to pay when due under
this Agreement as promptly as money becomes available directly to Paradise, amounts
of Non-Ad Valorem Revenues of the City sufficient to satisfy the obligation of the City
to purchase the Parking Facility Unit as required under this Agreement as set forth
herein. Such covenant is subject in all respects to the payment of obligations secured by
a pledge of such Non-Ad Valorem Revenues heretofore or hereafter entered into. Such
covenant and agreement on the part of the City to budget and appropriate such amounts
of Non-Ad Valorem Revenues shall be cumulative, and shall continue until such Non-
Ad Valorem Revenues or other legally available funds in amounts sufficient to pay the
Purchase Price, shall have been budgeted, appropriated and actually paid to Paradise.
The City further acknowledges and agrees that the obligations of the City to include the
amount of any deficiency in the payment of the Purchase Price in each of its annual
budgets and to pay such deficiencies from Non-Ad Valorem Revenues may be enforced
in a court of competent jurisdiction. Notwithstanding the foregoing or any provision of
this Agreement to the contrary, the City does not covenant to maintain any services or
programs now maintained by the City which generate Non-Ad Valorem Revenues or to
maintain the charges it presently collects for any such services or programs, and the City
further reserves the right to pledge any Non-Ad Valorem Revenues to the repayment of
any debt obligation of the City at any time, which pledge shall be superior to the use of
such Non-Ad Valorem Revenues subject to this covenant.
6.02 Purchase Price of PU-2. The purchase price to be paid by the City to Paradise for PU-
2 is Twenty-Five Thousand One Hundred Forty-Four and No/100 Dollars ($25,144.00)
per space or Eleven Million Three Hundred Fourteen Thousand Eight Hundred and
No/100 Dollars ($11,314,800.00) for the 450 spaces, (the "Purchase Price"), subject to
adjustments and prorations as provided in the Purchase Agreement.
6.03 Terms of Payment. Subject to the limitations set forth herein and in the Purchase
Agreement, the Purchase Price shall be paid to Paradise as follows:
$11,314,800.00 in current funds at time of Closing, subject to adjustments as provided in
the Purchase Agreement. If additional spaces are being acquired and further subject to
prorations and adjustments as herein provided, the same to be paid by wire transfer of
federal funds at the time of closing.
6.04 Public Parking Support Reconciliation. From and after the final completion of the
proposed Parking Garage to be constructed and the issuance of the necessary certificate of
occupancy and until closing by the City of PU-2, the City acknowledges Paradise's need to
receive One Million Two Hundred Fifty Thousand dollars ($1,250,000) per year in gross
revenue from PU-2. To the extent that PU-2does not generate at least One Million Two
Pelican Walk Parl�ng Garage Development Agreement
Hundred Fifty Thousand and No/100 Dollars ($1,250,000.00) gross revenue annually prior
to the City's acquisition of the same, but not later than two (2) years from the issuance of
the certificate of occupancy, the City agrees to pay Paradise the difference between the
actual gross revenues as substantiated by documentation acceptable and verifiable by the
City and One Million Two Hundred Fifty Thousand and No/100 Dollars ($1,250,000.00),
but not more than Two Hundred Fifty Thousand and No/100 Dollaxs ($250,000.00)
annually. Such payment to be made not later than sixty (60) days after each twelve (12)
month period and submitted to the City of verifiable evidence of the gross revenue actually
received fromPU-2. In the event the City closes in less than twenty-four (24) months from
the completion of PU-2, any revenues for a part of a year shall be prorated based on the
actual number of months/days between final completion and issuance of the certificate of
occupancy and City's closing. By way of example, if the City closes within nine (9)
months, then the Public Parking Support Reconciliation shall be based on a maximum of
seventy-five percent (75%) of Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) or One Hundred Eighty-Seven Thousand Five Hundred and No/100 Dollars
($187,500.00), assuming that PU-2's threshold is Nine Hundred Thirty-Seven Thousand
Five Hundred and No/100 Dollars ($937,500.00) and not One Million Two Hundred Fifty
Thousand and No/100 Dollars ($1,250,000.00) based on the reduced timeframe between a
full twelve (12) months and only nine (9) months of operation.
6.05 Enforcement of Municipal Parking Regulations. The City agrees to take reasonable
steps to enforce municipal parking regulations on Clearwater Beach.
6.06 Construction of Additional Structured Parking Spaces North of Causeway
Boulevard on Clearwater Beach. The City understands and agrees that as a party to
this Agreement, Paradise assumes certain financial risks which will be adversely
affected by the construction of additional structured parking spaces in the immediate
vicinity of the Parking Garage Site. In consideration thereof, the City agrees not to
pursue the development of another public parking garage or acquire a public parking
garage north of Causeway Boulevard on Clearwater Beach prior to closing.
6.07 Assistance with location temporary parking during construction. The City will
assist, but will not be responsible for, Paradise in locating temporary parking for the
Pelican Walk Shopping Center during construction.
ARTICLE 7. INDEMNIFICATION.
7.01
Indemnification by the Developer.
1. The Developer agrees to indemnify, defend and hold harmless, the City, its
respective agents, officers, or employees from any and all liabilities, damages,
penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees
through appellate proceedings, for personal injury, bodily injury, death or
Pelican Walk Parldng Garage Development Agteement
property damage arising out of, or by reason of any act or omission of the
Developer, its agents, employees or contractors arising out of, in connection with
or by reason of, the performance of its obligations covered by this Agreement, or
which are alleged to have arisen out of, in connection with or by reason of, the
performance of such obligations.
2. The Developer shall indemnify, defend and hold harmless the City, its officers
and employees from any and all liabilities, damages, costs, penalties, judgments,
claims, demands, losses, or expenses (including, but not limited to, actual
attorneys' fees and engineering fees) arising from or attributable to any breach by
the Developer, as the case may be, of any representations or warranties contained
in Section 8.01, or covenants contained in Section 8.02.
3. The Developer's indemnity obligations under subsections (1) and (2) of this
Section shall survive the earlier of the Termination Date or the Expiration Date,
but shall apply only to occurrences, acts, or omissions that arise on or before the
earlier of the Termination Date or the Expiration Date.
4. The Developer's indemnity hereunder is in addition to and not limited by any
insurance policy and is not and shall not be interpreted as an insuring agreement
between or among the parties to this Agreement, nor as a waiver of sovereign
immunity for any party entitled to assert the defense of sovereign immunity.
7A2 Indemnification by the City.
1. To the extent permitted by law, the City agrees to indemnify, defend and hold
harmless, the Developer, its respective officers, and employees from any and all
liabilities, damages, penalties, judgments, claims, demands, costs, losses,
expenses or attorneys' fees through appellate proceedings, for personal injury,
bodily injury, death or property damage arising out of, or by reason of, any act or
omission of the City, its respective agents or employees arising out of, in
connection with or by reason of, the performance of its obligations covered by
this Agreement, or which are alleged to have arisen out of, in connection with or
by reason of, the performance of such obligations.
2. The City shall indemnify, defend and hold harmless the Developer, its officers
and employees from any and all liabilities, damages, costs, penalties, judgments,
claims, demands, losses, or expenses (including, but not limited to, actual
attorneys' fees and engineering fees) arising from or attributable to any breach by
the City, as the case may be, of any representations or warranties contained in
Section 9.01, or covenants contained in Section 9.02.
3. The City's indemnity obligations under this Section 7.02 shall survive the earlier
of the Termination Date or the Expiration Date, but shall only apply to
occurrences, acts or omissions that arise on or before the earlier of the
Pelican Walk Parlflng Garage Development Ag�reement
Termination Date or the Expiration Date.
4. The City's indemnity hereunder is not and shall not be interpreted as an insuring
agreement between or among the parties to this Agreement, but is in addition to
and not limited by any insurance policy provided that said obligation shall not be
greater than that permitted and shall be limited by the provisions of Section
768.28, Florida Statutes, or any successor statute thereto.
7.03 Limitation of Indemnification. Notwithstanding anything to the contrary contained
herein, with respect to the indemnification obligations of the Developer (as set forth in Section
7.01) and the City (as set forth in Section 7.02), the following shall apply:
l. The indemnifying party shall not be responsible for damages that could have
been, but were not, mitigated by the indemnified party;
2. The indemnifying party shall not be responsible for that portion of any damages
caused by the negligent or willful acts or omissions of the indemnified party; and
3. There shall be no obligation to indemnify hereunder in the event that the
indemnified party (1) shall have effected a settlement of any claim without the
prior written consent of the indemnifying party, or (2) shall not have subrogated
the indemnifying party to the indemnified party's rights against any third party by
an assignment to the indemnifying party of any cause or action against such third
P�Y•
8.01 Rights of Project Lenders. The City hereby agrees with and for the benefit of each Project
Lender:
(1) When giving notice to the Developer with respect to any default under this
Development Agreement or any exercise of any right to terminate this
Development Agreement, the City will also give a copy of such notice to each
Project Lender, and no such notice to the Developer shall be deemed effective
with respect to any Project Lender unless such notice is also given in said manner
to each such Project Lender.
(2) In case the Developer shall default in respect of any of the provisions of this
Development Agreement, any Project Lender shall have the right, but not the
obligation, to cure such default and the City shall accept performance by or on
behalf of such Project Lender as though, and with the same effect as if, the same
had been done or performed by the Developer. A Project Lender will have a
period of time after the service of such notice upon it within which to cure the
default specified in such notice, or cause it to be cured, which is the same period
for cure, if any, as is given to the Developer under this Development Agreement
in respect of the specified default after the giving of such notice to the Developer,
plus an additional period of thirty (30) days. In the event of a default (or in the
event that the City is seeking to terminate this Development Agreement by reason
Pelican Walk Parldng Garage Development Agreement
of a default) which is curable without Project Lender being in possession and
control of the Property, but cannot reasonably be cured within said period, the
period of time for cure shall be extended for so long as any Project Lender is
diligently and continuously proceeding to attempt to cure such default, provided
that the Project Lender has begun proceedings to cure the default within the said
period.
(3) With respect to any default by the Developer under this Development Agreement
that is not susceptible of being cured by the Project Lender without being in
possession and control of the Property, the City shall take no action to terminate
this Development Agreement on account of such default if, within ninety (90)
days after notice of the default from the City (subject to any bankruptcy stays),
the Project Lender shall have commenced appropriate proceedings to obtain
possession of the Property (including possession by a receiver) or to foreclose the
Project, and shall thereafter be prosecuting the same to completion in good faith,
with diligence and continuity (subject to any bankruptcy stays); provided,
however, that (i) the Project Lender shall conclude any proceedings to obtain
possession of the Property or to foreclose the Project (as applicable, including the
removal of any bankruptcy stay) within eighteen (18) months following
commencement of such action, (ii) during the period of the City's forbearance, the
Project Lender shall comply with such of the terms, covenants and conditions of
this Development Agreement as are then susceptible of compliance by the Project
Lender, and (iii) if and after the Project Lender obtains possession of the Property,
the Project Lender shall promptly commence and diligently pursue the curing of
all defaults under this Development Agreement then susceptible of being cured by
the Project Lender.
(4) The City agrees to consider reasonable modifications to this Section 6.05
requested by any Project Lender in connection with the closing of the Project
Financing, provided that such modifications do not result in any changes in the
Project to be constructed hereunder or impair the City's rights or impose any
additional obligations on the City or adversely affect the City's remedies in the
event of any default.
(5) The provisions of this Section 6.05 in favor of the Project Lender shall inure to the
benefit of the Project Lender and its successors, assigns and designees, and also
any other purchaser or transferee of the Project and this Development Agreement
pursuant to any foreclosure or bankruptcy proceedings, or assignment in lieu
thereof.
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
PARADISE.
9.01 Representations and Warranties. Paradise represents and warrants to the City that each
of the following statements is currently true and accurate and agrees that the City may
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rely upon each of the following statements:
1. Paradise is a Florida limited liability company duly organized and validly
existing under the laws of the State of Florida, has all requisite power and
authority to carry on its business as now conducted, to own or hold its properties
and to enter into and perform its obligations hereunder and under each document
or instrument contemplated by this Agreement to which it is or will be a party, is
qualified to do business in the State of Florida, and has consented to service of
process upon a designated agent for service of process in the State of Florida.
2. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or required
by this Agreement to which the Developer is or will be a party have been duly
authorized by all necessary action on the part of, and have been or will be duly
executed and delivered by, Paradise, and neither the execution and delivery
thereof, nor compliance with the terms and provisions thereof or hereof: (i)
requires the approval and consent of any other party, except such as have been
duly obtained or as are specifically noted herein, (ii) contravenes any existing law,
judgment, governmental rule, regulation or order applicable to or binding on
Paradise, (iii) contravenes or results in any breach of, default under or, other than
as contemplated by this Agreement, results in the creation of any lien or
encumbrance upon any property of Paradise under any indenture, mortgage, deed
of trust, bank loan or credit agreement, Paradise's Articles of Incorporation, or,
any other agreement or instrument to which Paradise is a party or by which
Paradise may be bound.
3. This Agreement and any document contemplated or required by this Agreement
to which Paradise is or will be a party constitutes, or when entered into will
constitute, a legal, valid and binding obligation of Paradise enforceable against
Paradise in accordance with the terms thereof, except as such enforceability may
be limited by applicable bankruptcy, insolvency or similar laws from time to time
in effect which affect creditors' rights generally and subject to usual equitable
principles in the event that equitable remedies are involved.
4. There are no pending or, to the knowledge of Paradise, threatened actions or
proceedings before any court or administrative agency against Paradise, or
against any controlling shareholder, officer, employee or agent of Paradise,
which could affect the validity of this Agreement or any document contemplated
hereunder, or which are likely in any case, or in the aggregate, to materially
adversely affect the consummation of the duties and obligations contemplated in
this Agreement or the financial condition of Paradise.
5. Paradise has filed or caused to be filed all federal, state, local and foreign tax
returns, if any, which were required to be filed by Paradise, and has paid, or
caused to be paid, all taxes shown to be due and payable on such returns or on
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any assessments levied against Paradise.
6. The principal place of business and principal executive offices of Paradise is
Safety Harbor, Florida, and Paradise agrees to maintain records concerning the
Parking Garage (such as construction contracts, financing documents and
corporate documents) and all contracts, licenses and similar rights relating
thereto at an office in Pinellas County.
7. All financial information and other documentation, including that pertaining to
the Project or the Developer, delivered by the Developer to the City was, on the
date of delivery thereof, true and correct in all material respects
8. Subject to the approval of lender financing, Paradise has the financial capability
to carry out its obligations and responsibilities in connection with the
development of the Parking Garage as contemplated by this Agreement.
9. Paradise has the experience, expertise, and capability to develop, cause the
construction, and complete the Project and, oversee and manage the design,
planning, construction, completion and opening for business of the Parking
Garage.
9.02 Covenants. Paradise covenants with the City that until the Termination or Expiration Date:
l. Paradise shall timely perform or cause to be performed all of the obligations contained
herein which are the responsibility of Paradise to perform.
2. During each year that this Agreement and the obligations of Paradise under this
Agreement shall be in effect, Paradise shall cause to be executed and to continue to be in
effect those instruments, documents, certificates, permits, licenses and approvals and
shall cause to occur those events contemplated by this Agreement that are applicable to,
and that are the responsibility of, Paradise.
3. Paradise shall use commercially reasonable efforts to accomplish the
development, operation, and maintenance of the Parking Garage in accordance
with the Plan and Specifications, and this Agreement, and will not violate any
laws, ordinances, rules, regulations, orders, contracts or agreements that are or
will be applicable thereto.
4. Paradise shall promptly cause to be filed when due all federal, state, local and
foreign t� returns required to be filed by it, and shall promptly pay when due any
tax required thereby.
5. Paradise shall maintain its existence, will not dissolve or substantially dissolve all
of its assets and will not consolidate with or merge into another corporation,
limited partnership, or other entity or permit one or more other corporations or
Pelican Walk Paridng Garage Development Agreement
other entity to consolidate with or merge into it without the prior approval of the
City.
6. Paradise shall not sell, lease, transfer or otherwise dispose of all or substantially
all its assets without adequate consideration and will otherwise take no action
which shall have the effect, singularly or in the aggregate, of rendering Paradise
unable to continue to observe and perform the covenants, agreements, and
conditions hereof and the performance of all other obligations required by this
Agreement.
7. Paradise shall design, construct and complete the Parking Garage such that it is
substantially complete as provided in this Agreement no later than the Project
Completion Date, subject to extensions for an Unavoidable Delay(s).
ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
CITY.
10.01 Representations and Warranties. The City represents and warrants to Paradise that
each of the following statements is currently true and accurate and agrees that Paradise
may rely on each of the following statements:
1. The City is a validly existing body corporate and politic of the State of Florida,
has all requisite corporate power and authority to carry on its business as now
conducted and to perform its obligations hereunder and under each document or
instrument contemplated by this Agreement to which it is or will be a party.
2. This Agreement and to the extent such documents presently exist in a form
accepted by the City and Paradise, each document contemplated or required by
this Agreement to which the City is or will be a party have been duly authorized
by all necessary action on the part of, and have been or will be duly executed and
delivered by, the City, and neither the execution and delivery thereof, nor
compliance with the terms and provisions thereof or hereof (i) requires the
approval and consent of any other party, except such as have been duly obtained
or as are specifically noted herein, (ii) contravenes any existing law, judgment,
governmental rule, regulation or order applicable to or binding on the City, (iii)
contravenes or results in any breach of, or default under or, other than as
contemplated by this Agreement, results in the creation of any lien or
encumbrance upon any property of the City under any indenture, mortgage, deed
of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on
the date of this Agreement, any other agreement or instrument to which the City
is a party, specifically including any covenants of any bonds, notes, or other
forms of indebtedness of the City outstanding on the Effective Date.
3. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and Paradise, each document contemplated or required by
this Agreement to which the City is or will be a party constitute, or when entered
Pelican Walk Parking Garage Development Agreement
into will constitute, legal, valid and binding obligations of the City enforceable
against the City in accordance with the terms thereof, except as such
enforceability may be limited by public policy or applicable bankruptcy,
insolvency or similar laws from time to time in effect which affect creditors'
rights generally and subject to usual equitable principles in the event that
equitable remedies are involved.
4. The City will not require Condominium RU-1 or RU-2 to have any additional
parking so long as RU-1 and RU-2 maintains at least a 70% of its square footage
as retail and/or restaurant use.
10.02 Covenants. The City covenants with Paradise that until the earlier of the Termination Date
or the Expiration Date (unless an earlier date is specified, in which case such earlier date shall
control):
1. The City shall timely perform, or cause to be performed all of the obligations
contained herein which are the responsibility of the City to perform.
2. During each year that this Agreement and the obligations of the City under this
Agreement shall be in effect, the City shall cause to be executed and to continue
to be in effect those instruments, documents, certificates, permits, licenses and
approvals, and shall cause to occur those events contemplated by this Agreement
that are applicable to and are the responsibility of the City.
3. The City shall assist and cooperate with Paradise to accomplish the development
of the Parking Garage in accordance with this Agreement and the Plans and
Specifications, will carry out its duties and responsibilities contemplated by this
Agreement, and will not violate any laws, ordinances, rules, regulations, orders,
contracts, or agreements that are or will be applicable thereto, and, to the extent
permitted by law, the City will not enact or adopt or urge or encourage the
adoption of any ordinances resolutions, rules regulations or orders or approve or
enter into any contracts or agreements, including issuing any bonds, notes, or
other forms of indebtedness, that will result in any provision of this Agreement to
be in violation thereof.
ARTICLE 11 DEFAULT.
11.01 The following default provisions shall apply to any default by a party under this
Agreement:
1. City Default. In the event of a default by the City under this
Agreement which is not cured within ten (10) days following written notice from
Paradise, Paradise shall have the right to: (i) terminate this Agreement, whereupon
the parties shall be released from all further obligations under this Agreement,
except the obligations which by their express terms survive a termination, or,
alternatively, (ii) seek specific performance of the City's obligations hereunder
Pelican Walk Parlflng Garage Development Agreement
and/or any other equitable remedies, without thereby waiving damages.
2. Paradise Default. In the event of a default by Paradise under
this Agreement, which is not cured within ten (10) days following written notice from
the City and subject to the Tri-Party Agreement cure rights of any lender, the City at
its option shall have the right to: (i) terminate this Agreement, whereupon the parties
shall be released from all further obligations under this Agreement, except the
obligations which by their express terms survive a termination, or, alternatively, (ii)
seek specific performance of Paradise's obligations hereunder and/or any other
equitable remedies, without thereby waiving damages. Notwithstanding anything to
the contrary herein, in the event the City has received notice of a mortgagee having a
mortgage lien encumbering the Property, the City agrees to provide such mortgagee a
copy of any notice of default served upon Paradise which with the passage of time or
otherwise would entitle the City to terminate this Agreement or seek such other
remedy hereunder. The City further agrees that if Paradise has failed to cure such
default within the time provided for above, then the mortgagee shall have an
additional thirty (30) days after its receipt of notice within which to cure such default,
or, if such default cannot be cured within that time, then such additional time as may
be necessary to cure such default shall be granted if, within such thirty (30) days, the
mortgagee has commenced and is diligently pursuing the remedies necessary to cure
such default (including, but not limited to, commencement of foreclosure proceedings
necessary to effect such cure), in which event this Agreement shall not be terminated
while such remedies are being so diligently pursued.
11.02 Non-Action on Failure to Observe Provisions of this Agreement. The failure of the
City or Paradise to promptly or continually insist upon strict performance of any term,
covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other
agreement, instrument or document of whatever form or nature contemplated hereby shall
not be deemed a waiver of any right or remedy that the City or Paradise may have, and
shall not be deemed a waiver of a subsequent default or nonperformance of such term,
covenant, condition or provision.
ARTICLE 12 UNAVOIDABLE DELAY.
12.01 Unavoidable Delay.
1. Any delay in performance of or inability to perform any obligation under this
Agreement (other than an obligation to pay money) due to any event or condition
described in paragraph (b) as an event of "Unavoidable Delay" shall be excused
in the manner provided in this Section 11.01.
2. "Unavoidable Delay" means any of the following events or conditions not
currently existing at the effective date of this Agreement or any combination
thereof: acts of God, acts of the public enemy, riot, insurrection, war, pestilence,
archaeological excavations required by law, unavailability of materials after
timely ordering of same, epidemics, quarantine restrictions, freight embargoes,
Pelican Walk Parldng Garage Development Agreement
fire, lightning, hurricanes, earthquakes, tornadoes, floods, extremely abnormal
and excessively inclement weather (as indicated by the records of the local
weather bureau for a five year period preceding the Effective Date), litigation
initiated by third parties, strikes or labor disturbances, delays due to proceedings
under Chapters 73 and 74, Florida Statutes, restoration in connection with any of
the foregoing or any other cause beyond the reasonable control of the party
performing the obligation in question, including, without limitation, such causes
as may arise from the act of the other party to this Agreement, or acts of any
governmental authority (except that acts of the City shall not constitute an
Unavoidable Delay with respect to performance by the City).
3. An application by any party hereto (referred to in this paragraph (c) and in
paragraph (d) as the "Applicant") for an extension of time pursuant to this
subsection must be in writing, must set forth in detail the reasons and causes of
delay, and must be filed with the other party to this Agreement within seven (7)
days following the occurrence of the event or condition causing the Unavoidable
Delay or seven (7) days following the Applicant becoming aware (or with the
exercise of reasonable diligence should have become aware) of such occurrence.
4. The Applicant shall be entitled to an extension of time for an Unavoidable Delay
only for the number of days of delay due solely to the occurrence of the event or
condition causing such Unavoidable Delay and only to the extent that any such
occurrence actually delays that party from proceeding with its rights, duties and
obligations under this Agreement affected by such occurrence.
12.02 Termination.
If the Paradise's obligations set forth in this Agreement are not followed in a timely
manner, as reasonably determined by the City Council, after notice to Paradise and
an opportunity to be heard, existing permits shall be administratively suspended and
issuance of new permits suspended until Paradise 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 Council and after notice to Paradise and an
opportunity for Paradise to be heard.
2. If the City's obligations set forth in this Agreement are not followed after written
notice and 30 days to cure the City's default, Paradise shall have the option, in its sole
discretion to terminate this Agreement.
ARTICLE 13. MISCELLANEOUS PROVISIONS
13.01 Assignments by Paradise.
1. Prior to the Commencement Date, Paradise may sell, convey, assign or otherwise
dispose of any or all of its right, title, interest and obligations in and to the
Parking Garage Site and the Parking Garage, or any part thereof, only with the
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prior written consent of the City, such consent shall not be unreasonably withheld
provided that such party (hereinafter referred to as the "assignee") shall be
continue to be bound by the terms of this Agreement to the same extent as
Paradise.
2. If the assignee of Paradise's right, title, interest and obligations in and to the
Parking Garage assumes all of Paradise's obligations hereunder for the Parking
Garage, then Paradise shall be released from all such obligations hereunder which
have been so assumed by the assignee, and the City agrees to execute an
instrument evidencing such release, which shall be in recordable form.
3. An assignment of the Parking Garage, or any part thereof, by Paradise to any
corporation, limited partnership, general partnership, or joint venture, in which
Paradise is the or a general partner or has either the controlling interest or through
a joint venture or other arrangement shares equal management rights with a
financial institution 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 Section 12.01, provided,
however, that notice of such assignment shall be given by Paradise 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 Paradise
prior to such assignment.
13.02 Successors and Assigns. The terms and obligations herein contained shall bind and inure
to the benefit of the City and Paradise and its successors and assigns, including any lessee
of the Parking Garage. In the event that Paradise enters into a lease of the Parking Garage
or sells the Parking Garage and real property, the obligations of this Agreement shall be
enforceable against Paradise and its lessee or successor until the Termination or
Expiration Date, at which time Paradise shall be released from any further obligations
during the term of such lease, so long as Paradise has no obligations or rights to operate
the Parking Garage.
13.03. Notices. Any notices required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been given if delivered by hand, sent by facsimile
transmission, sent by recognized overnight courier (such as Federal Express) or mailed by
certified or registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
If to the City at: City of Clearwater
112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager
Fax. No. (727) 562-4052
With a copy to: Pamela K. Akin, Esq.
Clearwater City Attorney 112 S. Osceola Avenue Clearwater, FL 33756
Pelican Walk Parldng Garage Development Agreement
Fax No. (727) 562-4021
If to Paradise at: Paradise Group, LLC
2901 Rigsby Lane
Safety Harbor, Florida 34695 Attn: Mr. Michael P. Connor
F� No. (727) 726-2337
With a copy to: Macfarlane Ferguson McMullen, P.A.
Attn: Brian J. Aungst, Jr., Esq.
625 Court Street, Suite 200
Clearwater, Florida 33756
Fax No. (727) 442-8470
Notices personally delivered, sent by facsimile transmission or sent by overnight courier shall be
deemed given on the date of delivery and notices mailed in accordance with the foregoing shall
be deemed given three (3) days after deposit in the U.S. mails. Each party shall be entitled to
change its address for notices from time to time by delivering to the other party notice thereof in
the manner herein provided for the delivery of notices.
13.04. Applicable Law and Construction. The laws of the State of Florida shall govern the
validity, performance and enforcement of this Agreement. This Agreement has been negotiated
by the City and Paradise, and the Agreement, including, without limitation, the Exhibits, shall
not be deemed to have been prepared by the City or Paradise, but by all equally.
13.05. Venue; Submission to Jurisdiction.
For purposes of any suit, action, or other proceeding arising out of or relating to
this Agreement, the parties hereto do acknowledge, consent, and agree that venue
thereof is Pinellas County, Florida.
2. Each party to this Agreement hereby submits to the jurisdiction of the State of
Florida, Pinellas County and the courts thereof and to the jurisdiction of the
United States District Court for the Middle District of Florida, for the purposes of
any suit, action, or other proceeding arising out of or relating to this Agreement
and hereby agrees not to assert by way of a motion as a defense or otherwise that
such action is brought in an inconvenient forum or that the venue of such action is
improper or that the subject matter thereof may not be enforced in or by such
courts.
3. If at any time during the term of this Agreement, Paradise is not a resident of the
State of Florida or has no office, employee, or general partner thereof available
for service of process as a resident of the State of Florida, or if any permitted
assignee thereof shall be a foreign corporation, partnership or other entity or shall
have no officer, employee, agent, or general partner available for service of
process in the State of Florida, Paradise hereby designates the Secretary of State,
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State of Florida, its agent for the service of process in any court action between it
and the City, or both, arising out of or relating to this Agreement and such service
shall be made as provided by the laws of the State of Florida for service upon a
non-resident; provided, however, that at the time of service on the Florida
Secretary of State, a copy of such service shall be delivered to Paradise at the
address for notices as provided in 12.03.
13.06 Estoppel Certificates. The City shall at any time and from time to time, upon not less
than ten (10) days prior notice by Paradise, execute, acknowledge and deliver to the Developer
and other persons reasonably designated by Developer a statement in recordable form certifying,
to the extent true, that this Agreement has not been modified and is in full force and effect (or, if
there have been modifications, that the said Agreement, as modified, is in full force and effect
and setting forth a notation of such modifications), and that, to the knowledge of the City, neither
it nor Paradise is then in default hereof (or if either party is then in default hereof, stating the
nature and details of such default), it being intended that any such statement delivered pursuant
to this paragraph 13.06 may be relied upon by any prospective purchaser, mortgagee, lender,
successor, assignee of any mortgage or assignee of the respective interest in Paradise or the
Project, if any, of any party made in accordance with the provisions of this Agreement.
13.07. Complete Agreement; Amendments.
a. This Agreement, and all the terms and provisions contained herein, including
without limitation the Exhibits hereto, constitute the full and complete agreement
between the parties hereto to the date hereof, and supersedes and controls over
any and all prior agreements, understandings, representations, correspondence and
statements, whether written or oral.
b. Any provision of this Agreement shall be read and applied in para materia with all
other provisions hereof.
c. This Agreement cannot be changed or revised except by written amendment
signed by all parties hereto.
13.08. Captions. The article and section headings and captions of this Agreement and the table
of contents preceding this Agreement are for convenience and reference only and in no
way define, limit, describe the scope or intent of this Agreement or any part thereof, or in
any way affect this Agreement or construe any article, section, subsection, paragraph or
provision hereof.
13.09. Holidays. It is hereby agreed and declared that whenever a notice or performance under
the terms of this Agreement is to be made or given or any time period ends on a Saturday
or Sunday or on a legal holiday observed in the City, it shall be postponed to the next
following business day.
13.10. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of
this Agreement. The Exhibits and any amendments or revisions thereto, even if not
physically attached hereto shall be treated as if they are part of this Agreement. The
terms of the Amended Purchase Agreement attached hereto as Exhibit "C" shall control
over any inconsistencies between the terms of this Agreement and the terms of the
Pelican Walk Parking Garage Development Agreement
Purchase Agreement unless otherwise specifically provided herein.
13.11. Not an Agent of City. During the term of this Agreement, Paradise hereunder shall not
be an agent of the City with respect to any and all services to be performed by Paradise
(and any of its agents, assigns, or successors) with respect to the Parking Garage.
13.12. Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills
and is pursuant to and for a public purpose and municipal purpose and is in the public
interest, and is a proper exercise of the City's power and authority.
13.13. No General Obligation. In no event shall any obligation of the City under this
Agreement be or constitute a general obligation or indebtedness of the City or the City, a
pledge of the ad valorem taxing power of the City or the City or a general obligation or
indebtedness of the City or the City within the meaning of the Constitution of the State of
Florida or any other applicable laws, but shall be payable solely from legally available
revenues and funds. Neither Paradise nor any other party under or beneficiary of this
Agreement shall ever have the right to compel the exercise of the ad valorem taxing
power of the City, the City or any other governmental entity or taxation in any form on
any real or personal property to pay the City's or the City's obligations or undertakings
hereunder.
13.14. Term; Expiration. This Agreement shall expire and no longer be of any force and effect
on the tenth (10�') anniversary of the issuance of a final certificate of occupancy for the
Parking Garage.
13.15. Recording of Development Agreement. Pursuant to § 163.3239 of the Florida Statutes
(2013), the City authorizes and hereby directs the City Clerk to record this Agreement in
the public records of Pinellas County, Florida, within fourteen (14) days after City
Council approval of this Agreement. The Developer shall pay the cost of such recording.
A copy of the recorded Agreement shall be submitted by the City to the state land
planning agency within fourteen (14) days after this Agreement is recorded, with
evidence of such submittal to be provided to the Developer.
13.16. Other Requirements of State Law. Nothing in this Agreement shall be deemed to
relieve either party from full compliance with any provision of State law which is
applicable to any of the obligations or under takings provided for in this Agreement. In
the event that this Agreement omits an obligation to comply with any provision of State
law in regard to any of the obligations or undertakings provided for in this Agreement, it
is the intention of the parties that such applicable State law shall be deemed incorporated
into this Agreement and made a part thereof. In the event that there is any conflict
between the provisions of this Agreement and applicable State law, it is the intention of
the parties that the Agreement shall be construed to incorporate such provisions of State
law and that such provisions shall control.
13.17 Effective Date. As provided by § 163.3239 of the Florida Statutes (2013), this Agreement
will become effective after being recorded in the Public Records of Pinellas County, Florida and
Pelican Walk Parlflng Garage Development Agreement
30 days after having been received by the state land planning agency.
13.18. Approvals Not Unreasonably Withheld. The parties hereto represent that it is their
respective intent as of the Effective Date and do covenant and agree in the future that all
approvals, consents, and reviews will be undertaken and completed as expeditiously as
possible, in good faith, and will not be arbitrarily or unreasonably withheld, unless
otherwise expressly authorized by the terms of this Agreement.
13.19. Minor Non-Com liance. Paradise 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.
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of this day of , 2015.
Countersigned:
GEORGE N. CRETEKOS
Mayor-Commissioner
Approved as to form:
PAMELA K. AKIN
City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
CITY OF CLEARWATER, FLORIDA
:
WILLIAM B. HORNE, II
City Manager
Attest:
ROSEMARY CALL
City Clerk
The foregoing instrument was acknowledged before me this _ day of ,
2015, by GEORGE N. CRETEKOS, Mayor-Commissioner of the City of Clearwater, who is
personally known to me.
Print/Type Name:
Notary Public
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of ,
2015, by WILLIAM B. HORNE II, City Manager of the City of Clearwater, who is personally
Pelican Wall� Parldng Garage Development Agreement
known to me.
Print/Type Name:
Notary Public
PV-PELICAN WALK„ LLC
By PGD IV, INC., its Managing Member
I�
STATE OF FLORIDA
COUNTY OF PINELLAS
Michael P. Connor
The foregoing instrument was acknowledged before me this day of ,
2015 by Michael P. Connor, President of PGD IV, INC., a Florida corporation, on behalf of
PARADISE GROUP, LLC.
Print/Type Name:
Notary Public
Pelican Wa1k Parldng Garage Development Agreement
EXHIBIT A
JOINDER TO AGREEMENT FOR DEVELOPMENT OF PROPERTY (PELICAN WALK�
The undersigned hereby acknowledges that Pelican Walk Investors, LLC, owner of the
property commonly known as Pelican Walk Shopping Center and more fully described in
Exhibit B-1, attached hereto, joins in this Development Agreement for the purpose of consenting
to the proposed site plan, consenting to the property being submitted to the Development Review
process, and confirming its agreement to join in the Declaration of Condominium contemplated
in Section 2.03 of the Agreement for Development of Property (Pelican Walk) to cause such
Pelican Walk Shopping Center to be described as Retail Unit One (RU-1) thereof and subject to
the terms of such Declaration.
By: Benjamin Mallah, its Manager
EXHIBIT B
Legal Description of Property
The land referred to herein below is situated in the County of Pinellas, State of Florida, and
described as follows:
Lots 32 through 43, Block "B", FIRST ADDITION TO CLEARWATER BEACH PARK,
according to the map or plat thereof as recorded in Plat Book 15, Page 80, Public Records of
Pinellas County, Florida, together with the adjacent 1/2 of a vacated alley lying along the East
boundary thereof.
AND
Lots 2 through 8, Block "A", as appearing on the plat named A RE-PLAT OF BLOCK "A"
AND LOTS 1 TO 15 INCL. BLOCK "B" OF CLEARWATER BEACH PARK FIRST
ADDITION, according to the map or plat thereof recorded in Plat Book 21, Page 21, Public
Records of Pinellas County, Florida, together with the adjacent 1/2 of a vacated alley lying along
the West boundary thereof.
EXHIBIT "B-1"
Lots 2 through 8, Block "A", as appearing on the plat named A RE-PLAT OF BLOCK "A"
AND LOTS 1 TO 15 INCL. BLOCK "B" OF CLEARWATER BEACH PARK FIRST
ADDITION, according to the map or plat thereof recorded in Plat Book 21, Page 21, Public
Records of Pinellas County, Florida, together with the adjacent 1/2 of a vacated alley lying along
the West boundary thereof.
EXHIBIT C
AMENDED PURCHASE AGREEMENT
AMENDED PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Aqreement") is made and entered into as
of this day of , 2015, by and between PARADISE GROUP, LLC, a Florida limited
liability company, (the "Developer") and THE CITY OF CLEARWATER, FLORIDA, a
Florida municipal corporation (the "C�").
RECITALS:
A. The City desires to: 1) promote the revitalization and redevelopment of the
Retail and Restaurant District, the Marina District and the Destination Resort District of
Clearwater Beach and recognizes that additional off-street parking open to the public is
needed to support such revitalization and redevelopment, and 2) provide additional
beach parking.
B. Developer recognizes that additionaf off-street parking open to the public
on the Parking Lot will contribute not only to the economic viability of the Pelican Walk
Shopping Center but also the viability of the Retail and Restaurant District, the Marina
District and the Destination Resort District.
C. The Developer intends to develop and construct on what is currently the
Pelican Walk Shopping Center and Parking Lot ("Pelican Walk Property") a
retail/commercial project, including a parking garage containing approximately 702 total
parking spaces, (collectively, the "Pro'ect" on the property more particularly described
in Exhibit "A: attached hereto (the "Propertv").
D. The Property, which includes the current Pelican Walk Shopping Center
property described in Exhibit "A-1" ("Existing Retail Center"), shall be and will be
submitted to the condominium form of ownership pursuant to Chapter 718 of the Florida
Statutes and condominium documents shall be prepared. The condominium shall
contain units to be utilized for general retail sales and services and units to be utilized for
public and private parking.
E. The parties wish to formalize their understanding as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein set forth, the parties agree that the foregoing recitafs are true and correct and
further agree as follows:
1. Development.
A. Scope of the Proiect
(1) Description of Proiect The Project shall include a
commercial parking garage, private and public parking, commercial and retail uses and
appropriate accessory uses and shall be developed in substantial conformity with the
Conceptual Plans, copies of which are attached as Exhibit "B" hereto.
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(2) Formation of Condominium. Developer shall create a six (6)
unit commercial condominium for the Project and Existing Retail Center. Retail Unit One
(RU-1) shall consist of the Existing Retail Center described in Exhibit A-1 and
improvements thereon, Retail Unit Two (RU-2_ shall consist of the new approximately
11,000 square foot retail space with no common elements except for exterior walls
excluding doors and plate glass, Parking Unit Ground (PU-G) shall consist of 28 parking
spaces on the ground floor, Parking Unit One (PU-1) shall consist of the next 114
parking spaces on the first and second floors, Parking Unit Two (PU-2) shall consist of
the next lowest 450 parking spaces to be acquired by the City pursuant to the Amended
Purchase Agreement plus any additional spaces acquired by the City pursuant to its
hereinafter described option, and Parking Unit Five (PU-3) shall consist of the remaining
110 spaces (reduced by the number of spaces acquired by the City pursuant to its
option, right of purchase or right of first refusal). All development rights remaining on the
parking lot parcel shall be retained by RU-2 and be available for transfer (TDR) to
another site as permitted by law. The available development rights retained in RU-2 shall
be calculated based upon the original unified parcel configuration, which included the
parking lot parcel and the Pelican Walk Shopping Center parcel. PU-G, PU-1 and PU-3
may be divided into multiple units. Developer shall submit the Property, including the
Existing Retail Center, to the condominium form of ownership pursuant to Chapter 718 of
the Florida Statutes. The condominium documents shall be in a in a form to be approved
by City with a consent or joinder from any lender or lienholder or any other party having
any record interest in any mortgage or lien encumbering the interest in the Property as
required by Section 718.104(3) of the Florida Statutes. It is anticipated that the
maintenance fees of the condominium will be allocated between the Units on an
equitable basis mutually agreed upon by Developer and City based on the anticipated
maintenance and costs associated with the different units with the understanding that all
improvements on RU-1 will be maintained by the owner of RU-1 and the owner of RU-1
shall control the improvements made within said Unit. Cost of utilities shall be
segregated to the Unit receiving service and not be a common expense, where possible.
Prior to the City's purchase of PU-2, the condominium documents, once approved by the
City, shall not be materially modified or amended without the prior written consent of the
City, which consent shall not be unreasonably withheld.
(3)
(4) Public Parkinq Unit/Spaces Which Mav Be Leased bv
Developer. The charqe to the public for those Parkinq Spaces/Units not beinq acauired
by the Citv shall be limited and restricted as follows� PU-G and PU-1 shall consist of 142
spaces that mav be apportioned bv Developer as leased parkinq hourlv parking or both
PU-3 shall consist of 110 spaces that mav be apportioned bv Develoqer as leased
parking, hourlv parkinq or both. Developer aqrees to submit a commerciallv reasonable
parkinq manaqement plan for the operation of PU-G PU-1 and PU-3 as a condition of
closinq. Anv spaces within PU-G PU-1 and PU-3 shall not be leased for an amount
less than 50% of the then current monthlv space rental charqe charqed bv the Citv for
parkinq spaces in PU-2. This restriction is limited to Developer's monthlv rentals onlv
(5)
(6) Financinq. Developer shall provide City with evidence
2
satisfactory to the City of Developer's having obtained financing adequate to construct
the Project and Developer's lender shall have entered into a non-disturbance/tri-party
agreement with City and Developer as hereinafter described.
(5) Land Develoqment Requlations Developer shall abide by
the City's Land Development Regulations which shall govern the development and
construction of the Project.
(6) Develoqment Approval and Permits
(a) Applications for Development Approval The
Developer shall prepare and submit to the appropriate Governmental Authority, including
the appropriate divisions and boards of the City, applications for approval of all Plans
and Specifications necessary for the Project, and shall bear all costs of preparing such
applications, applying for and obtaining such permits, including payment of any and all
applicable application, inspection, regulatory and impact fees or charges (if any).
(7) Plans and Specifications.
( a) Responsibilitv for Preparation of Plans and
Specifications. The Developer shall be solely responsible for and shall pay the cost of
preparing, submitting and obtaining approval of the Plans and Specifications for the
Project.
(b) Use of Qualified Professionals The Developer shall
retain qualified professionals to prepare the Plans and Specifications and shall cause
such professionals to prepare the Plans and Specifications.
(c) Approval of Plans and Specifications for the
Commercial Parkinq Garaqe. In order to ensure that the design of the Parking Unit(s) will
meet the City's standards, the Plans and Specifications for the Project shall be submitted
to the City for review and comment prior to the submission of any application for a
building permit, other than a foundation permit. The City's review of the Plans and
Specifications hereunder in its proprietary (i.e., non-regulatory) capacity shall be limited
to compliance by the Parking Units with the City Parking Garage Standards.
2. Acauisition of Parkinq Spaces. City shall acquire 450 contiguous Parking
Spaces which shall meet City's Parking Garage Standards, which shall be PU-2 of the
Commercial Condominium to be created by Developer. Such Unit may be acquired at a
cost per space as set forth in paragraph 3 hereof ("Parking UniY') with the City having the
option to acquire additional contiguous Spaces at a cost of $25,144 per space provided
City exercises this option prior to final project design approval or August 15, 2014,
whichever shall first occur. After August 15, 2014, until Closing the City shall still have
the right to purchase additionat spaces only if the Developer is offering to sell spaces to
third parties, provided, however, the cost per space shall be at the rate or $25,144.00
per space. After closing, the City shall have a right of first refusal to acquire spaces
which the Developer is offering to sell to unrelated third parties, provided,
�
however, the cost to the City per space shall be the same as the third party has offered.
City shall be provided, within ten (10) days of execution of any third party offer for
spaces, a copy of the proposed third party offer for the parking space(s) shall be
presented to the City and the City shall have forty-five (45) days after receipt of the same
within which to match the offer from the third party and closing will be with in thirty (30)
days thereafter. Provided, however, City shall not be required to close on such additional
spaces prior to the City acquiring the Parking Unit with the 450 Parking Spaces.
In terms of City's obligation to pay the Purchase Price, the City covenants
and agrees to appropriate in its annual budget, by amendment, if required, and to pay
when due under this Agreement as promptly as money becomes available directly to the
Developer, amounts of Non-Ad Valorem Revenues of the City sufficient to satisfy the
obligation of the City to purchase the Parking Facility Unit as required under this
Agreement as set forth herein. Such covenant is subject in all respects to the payment of
obligations secured by a pledge of such Non-Ad Valorem Revenues heretofore or
hereafter entered into. Such covenant and agreement on the part of the City to budget
and appropriate such amounts of Non-Ad Valorem Revenues shall be cumulative, and
shall continue until such Non-Ad Valorem Revenues or other legally available funds in
amounts sufficient to pay the Purchase Price, shall have been budgeted, appropriated
and actually paid to the Developer. The City further acknowledges and agrees that the
obligations of the City to include the amount of any deficiency in the payment of the
Purchase Price in each of its annual budgets and to pay such deficiencies from Non-Ad
Valorem Revenues may be enforced in a court of competent jurisdiction.
Notwithstanding the foregoing or any provision of this Agreement to the contrary, the City
does not covenant to maintain any services or programs now maintained by the City
which generate Non-Ad Valorem Revenues or to maintain the charges it presently
collects for any such services or programs, and the City further reserves the right to
pledge any Non-Ad Valorem Revenues to the repayment of any debt obligation of the
City at any time, which pledge shall be superior to the use of such Non-Ad Valorem
Revenues subject to this covenant.
3. Purchase Price. The purchase price to be paid by the City to Developer for
the Parking Unit (PU-2) is Twenty-Five Thousand One Hundred Forty-Four and No/100
Dollars ($25,144.00) per space or Eleven Million Three Hundred Fourteen Thousand
Eight Hundred and No/1 00 Dollars ($1 1,314,800.00) for the 450 spaces, (the "Purchase
Pri�P"), subject to adjustments and prorations as provided herein.
4. Terms of Pavment. Subject to the limitations set forth herein and in
paragraph 2 hereof, the Purchase Price shall be paid to Developer as follows:
�
$1 1,314,800.00 in current funds at time of Closing, subject to adjustments as
provided in paragraph 2. If additional spaces are being
acquired and further subject to prorations and adjustments as
herein provided, the same to be paid by wire transfer of
federal funds at the time of closing.
5. Condition of Title. At the Closing, fee simple title to the Parking Unit shall
be conveyed to the City by general warranty deed, subject to the following matters: (a)
ad valorem real estate taxes for the year of Closing and subsequent years; (b) the
Declaration and other condominium documents which shall have been agreed upon and
approved by Developer and City; (c) the covenants, restrictions, easements and other
exceptions specifically identified on Exhibit "C" attached hereto and approved by City; (d)
all laws, ordinances, regulations, restrictions, prohibitions and other requirements
imposed by governmental authority, including, but not limited to, all applicable building,
zoning, land use and environmental ordinances and regulations; (e) matters affecting the
condition of title to the Property (or any part thereof) created by or with the written
consent of the City; and (f) any other exceptions or matters recorded against the
Property (or any part thereof) after the date of this Agreement with respect to the
development, construction, operation and management of the Project (such as
reservations, covenants, utility easements, reciprocal easement agreements and any
amendments or supplements thereto) and which do not, in the opinion of the City,
adversely affect the title ownership or operation of the Parking Unit. Title to the Parking
Unit will be conveyed to the City at Closing free and clear of any mortgage, lien or other
encumbrance securing the Project.
6. Closinq• The closing (the "Closin " shall be held on September 1, 2016;
provided, however, nothing shall prohibit the City, at its sole option, from acquiring the
Parking Units at an earlier date upon sixty (60) days' prior notice to Developer.
Notwithstanding anything contained herein to the contrary, the City shall not be required
to acquire the Parking Units unless Developer has fully perFormed and completed
construction of the Unit in accordance with the terms hereof and all City codes, rules,
ordinances and regulations, including compliance with the development agreement to be
entered into with the City and a certificate of occupancy has been issued by the City.
Closing shall take place at the offices of Macfarlane Ferguson & McMullen,
P.A., located at 625 Court Street, Clearwater, Florida 33756, or through an escrow with
Developer's attorneys whereby Developer, the City and their attorneys need not be
physically present at Closing and may deliver documents by courier or other means.
A. At Closing, Developer shall execute and deliver to the City the
following Closing documents:
(1) a general warranty deed in the form attached hereto as
Exhibit "D", subject only to the Permitted Exceptions (defined below);
�7
(2) a customary and appropriate mechanic's lien affidavit,
affidavit of exclusive possession, "gap" affidavit, and non-foreign affidavit; and
(3) appropriate evidence of Developer's formation, existence
and authority to sell and convey the Parking Unit, including a member consent,
resolution and/or such other evidence of authority and good standing (as appropriate)
with respect to Developer as may be reasonably required by the title insurance company
issuing title insurance covering the Parking Unit in favor of the City.
B. Non-Disturbance/Tri-Partv Aqreement City shall be provided upon
the filing of any lien on the Property with a non-disturbance/tri-party agreement from any
mortgagee or lien holder having a lien or mortgage on the Property recognizing the City's
rights under this Agreement and agreeing to the City's and Developer's ability to enforce
this Agreement and City's rights hereunder in the event of a default in any loan, lien or
mortgage encumbering the Property or any default in this Agreement. The non-
disturbance/tri-party agreement shall be recorded and be binding on and run to the
benefit of any successors or assigns of the parties. A memorandum of this Agreement
shall be placed of record upon the execution of this Agreement.
C. Public Parkinq Support Reconciliation From and after the final
completion of the proposed Parking Garage to be constructed and the issuance of the
necessary certificate of occupancy and until closing by the City of the Parking Unit, the
City acknowledges the Developer's need to receive One Million Two Hundred Fifty
Thousand and No/1 00 Dollars ($1,250,000.00) per year from the gross revenue from
the Parking Unit to be acquired by the City. To the extent that the Parking Unit to be
acquired by the City do not generate at least One Million Two Hundred Fifty Thousand
and No/100 Dollars ($1,250,000.00) gross revenue annually prior to the City's acquisition
of the same, but not later than two (2) years from the issuance of the certificate of
occupancy, the City agrees to pay Developer the difference befinreen the actual gross
revenues as substantiated by documentation acceptable and verifiable by the City and
One Million Two Hundred Fifty Thousand and No/100 Dollars ($1,250,000.00), but not
more than Two Hundred Fifty Thousand and No/1 00 Dollars ($250,000.00) annually.
Such payment to be made not later than sixty (60) days after each twelve (12) month
period and submitted to the City of verifiable evidence of the gross revenue actually
received from the Parking Unit. In the event the City closes in less than twenty-four (24)
months from the completion of the Parking Unit, any revenues for a part of a year shall
be prorated based on the actual number of months/days between final completion and
issuance of the certificate of occupancy and City's closing. By way of example, if the City
closes within nine (9) months, then the Public Parking Support Reconciliation shall be
based on a maximum of seventy-five percent (75%) of Two Hundred Fifty Thousand and
No/100 Dollars ($250,000.00) or One Hundred Eighty-Seven Thousand Five Hundred
and No/100 Dollars ($187,500.00), assuming that the Parking Unit threshold is Nine
Hundred Thirty-Seven Thousand Five Hundred and No/100 Dollars ($937,500.00) and
not One Million Two Hundred Fifty
:
Thousand and No/100 Doliars ($1,250,000.00) based on the reduced timeframe
befinreen a full twelve (12) months and only nine (9) months of operation.
D. At Closing, Developer and the City shall each execute counterpart
closing statements and such other documents as are reasonably necessary to
consummate the transaction contempfated by this Agreement.
7. Prorations: Utilities.
A. Prorations Generallv. Real estate and personal property taxes,
costs and revenues and all other proratable items for the Parking Unit shall be prorated
as of the date of Closing. All current, pending and/or levied condominium assessments
or fees which were enacted, approved or originated prior to Closing shall be paid by
Developer. The City shall pay assessments and fees levied after the Closing date. For
purposes of this provision, the term "levied" shall mean when the Board of the
Condominium Association or required Unit Owners or both have voted in accordance
with Florida law and the Declaration to approve an assessment or fee.
B. Taxes. Closing agent shall collect all ad valorem taxes uncollected
but due through the date prior to closing and deliver same to the Pinellas County Tax
Collector with notification to thereafter exempt the Property from taxation as provided in
Chapter 196.012(6) Florida Statutes. If the amount of taxes and assessments for the
current year cannot be ascertained, rates for the previous year should be used with due
allowance being made for improvements and exemptions.
C. Utilities. With respect to electricity, water and sewer services and
other utilities (collectively, "Utilities" the parties shall endeavor to have the respective
companies providing the Utilities read the meters for the Utilities on or immediately prior
to the Closing date. Developer shall be responsible for all charges based on such final
meter reading, and the City shall be responsible for all charges relating to the Parking
Unit thereafter. If such readings are not obtainable, then, until such time as readings are
obtained, charges for all Utilities for which readings were not obtained shalt be prorated
as of the Closing Date based upon the per diem rate obtained by using the last period
and bills for such Utilities that are available. Upon the taking of a subsequent actual
reading, such apportionment shall be adjusted and reprorated to reflect the actual per
diem rate for the billing period prior to Closing and Developer or the City, as the case
may be, shall promptly deliver to the other the amount determined to be due with respect
to the Parking Unit upon such adjustment. To the extent Utilities are not separately
metered to the Parking Unit, a fair and equitable portion of such Utilities shall be
allocated to the Parking Unit (for the initial proration and any subsequent reproration)
using the same the methodology for cost allocation of utilities between condominium
units provided in the Declaration.
The provisions of this paragraph shall survive the Closing.
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8. Closinq Costs. The Developer shall pay the cost of documentary stamps
due on the warranty deed and recording costs for the deed. The Developer shall be
solely responsible for the cost of examining title and obtaining the owner's title
commitment and insurance policy to insure title to the Parking Unit in the City, and the
premiums and any other related fees and costs for the same. Each party shall pay its
own legal fees except as provided in subparagraph 16(D) below. All other closing costs
shall be apportioned in the manner customary for commercial for real estate transactions
in Pinellas County, Florida.
9. Representations and Warranties.
A. Developer represents and warrants to the City and agrees with the
City that each of the following statements is currently true and accurate and shall be true
and accurate at the time of Closing, and agrees that the City may rely upon each of the
following statements:
(1) Developer is a validly existing limited liability company under
the laws of the State of Florida, and has all requisite power and authority to carry on its
business as now conducted and to perForm its obligations hereunder and under each
document or instrument contemplated by this Agreement to which it is or will be a party
and shall maintain its existence, will not dissolve and will not consolidate with a merger
into another entity.
(2) This Agreement and, to the extent such documents presently
exist in a form accepted by the City and Developer, each document contemplated or
required by this Agreement to which Developer is or will be a party have been duly
authorized by all necessary action on the part of, and have been or will be duly executed
and delivered by, Developer, and neither the execution and delivery thereof, nor
compliance with the terms and provisions thereof or hereof (i) requires the approval and
consent of any other party, except such as have been duly obtained or as are specifically
noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation
or order applicable to or binding on Developer, or (iii) contravenes or results in any
breach of, or default under or, other than as contemplated by this Agreement, results in
the creation of any lien or encumbrance upon any property of Developer under any
indenture, mortgage, deed of trust, bank loan or credit agreement, applicable
ordinances, resolutions or, on the date of this Agreement, any other agreement or
instrument to which Developer is a party, specifically including any covenants of any
bonds, notes, or other forms of indebtedness of Developer outstanding on the date of
this Agreement.
(3) This Agreement and, to the extent such documents presently
exist in a form accepted by the City and Developer, each document contemplated or
required by this Agreement to which Developer is or will be a party constitute, or when
entered into will constitute, legal, valid and binding obligations of Developer enforceable
against Developer in accordance with the terms thereof, except as such enforceability
may be limited by pubtic policy or applicable bankruptcy, insolvency or similar laws from
time to time in effect which affect creditors' rights generally and subject to usual
:
equitable principles in the event that equitable remedies are involved.
(4) Developer is not a"foreign person" within the meaning of the
United States tax laws and to which reference is made in Internaf Revenue Code Section
1445(b)(2). At Closing, Developer shall deliver to the City an affidavit to such effect, and
also stating Developer's tax identification number. Developer acknowledges and agrees
that the City shall be entitled to fully comply with Internal Revenue Code Section 1445
and all related sections and regulations, as same may be modified and amended from
time to time, and Developer shall act in accordance with all reasonable requirements of
the City to effect such full compliance by the City.
(5) There are no pending or, to the knowledge of the Developer,
threatened actions or proceedings before any court or administrative agency against the
Developer, or against any controlling member, officer, employee or agent of the
Developer which question the validity of this Agreement or any document contemplated
hereunder, or which are likely in any case, or in the aggregate, to materially adversely
affect the consummation of the transactions contemplated hereunder or the financial
condition of the Developer.
(6) All financial information and other documentation, including
that pertaining to the Project or the Developer, detivered by the Developer to the City
was, on the date of delivery thereof, true and correct in all material respects.
(7) As of the Effective Date, the Developer will have the financial
capability to carry out its obligations and responsibilities in connection with the
development of the Project as contemplated by this Agreement.
(8) The Developer has the experience, expertise, and capability
to develop, cause the construction, and complete the Project and, oversee and manage
the design, planning, construction, completion and opening for business of the Project.
(9) The Developer shall timely perform or cause to be performed
all the obligations contained herein which are the responsibility of the Developer to
perForm.
(10) During each year that this Agreement and the obligations of
the Developer under this Agreement shall be in effect, the Developer shall cause to be
executed and to continue to be in effect those instruments, documents, certificates,
permits, licenses, and approvals and shall cause to occur those events contemplated by
this Agreement that are applicable to, and that are the responsibility of, the Developer.
(11) The Developer shall use commercially reasonable efforts to
accomplish the development of the Project by the Developer in accordance with the
Plans and Specifications, and this Agreement and will not violate any laws, ordinances,
rules, regulations, orders, contracts or agreements that are applicable thereto.
0
(12) Subsequent to the Effective Date, the Developer shall
maintain its financial capability to develop, construct and complete the Project and shall
promptly notify the city of any event, condition, occurrence, or change in its financial
condition which materially adversely affects, or with the passage of time is likely to
materially adversely affect, the Developer's financial capability to successfully and
completely develop, construct and complete the Project as contemplated hereby.
(13) Subsequent to the Effective Date and prior to acquisition of
the condominium by the City, the Developer shall maintain its existence, not dissolve or
substantially dissolve all of its assets, not consolidate with or merge into another
corporation, limited partnership, or other entity, not sell, lease, transfer or otherwise
dispose of alt or substantially all its assets or otherwise take any action which would
have the effect of rendering Pelican Walk, LLC unable to observe and perForm the
responsibilities of this agreement without the prior approval of the City, which shall not
be unreasonably withheld.
B. The City represents and warrants to Developer and agrees with
Developer that each of the following statements is currently true and accurate and shall
be true and accurate at the time of closing, and agrees that Developer may rely upon
each of the following statements:
(1) The City is a validly existing body corporate and politic of the
State of Florida, and has all requisite power and authority to carry on its business as now
conducted and to perform its obligations hereunder and under each document or
instrument contemplated by this Agreement to which it is or will be a party.
(2) This Agreement and, to the extent such documents presently
exist in a form accepted by the City and Developer, each document contemplated or
required by this Agreement to which the City is or will be a party have been duly
authorized by all necessary action on the part of, and have been or will be duly executed
and delivered by, the City, and neither the execution and delivery thereof, nor
compliance with the terms and provisions thereof or hereof (i) requires the approval and
consent of any other party, except such as have been duly obtained or as are specifically
noted herein, (ii) contravenes any existing faw, judgment, governmental rule, regulation
or order applicable to or binding on the City, or (iii) contravenes or results in any breach
of, or default under or, other than as contemplated by this Agreement, results in the
creation of any lien or encumbrance upon any property of the City under any indenture,
mortgage, deed of trust, bank loan or credit agreement, applicable ordinances,
resolutions or, on the date of this Agreement, any other agreement or instrument to
which the City is a party, specifically including any covenants of any bonds, notes, or
other forms of indebtedness of the City outstanding on the date of this Agreement.
(3) This Agreement and, to the extent such documents presently
exist in a form accepted by the City and Developer, each document contemplated or
required by this Agreement to which the City is or will be a party constitute, or when
entered into will constitute, legal, valid and binding obligations of the City enforceable
against the City in accordance with the terms thereof, except as such enforceability may
10
be limited by public policy or applicable bankruptcy, insolvency or similar laws from time
to time in effect which affect creditors' rights generally and subject to usual equitable
principles in the event that equitable remedies are involved.
(4) The City agrees not to pursue the development of another
public parking garage or acquire a public parking garage north of Causeway Boulevard
on Clearwater Beach prior to closing.
All of the foregoing representation and warranties shall be true and correct on the date of
this Agreement and on the date of Closing. The provisions of this paragraph shall survive
the Closing.
10. Default Provisions. The following default provisions shall apply to any
default by a party under this Agreement:
A. Citv Default. In the event of a default by the City under this
Agreement which is not cured within ten (10) days following written notice from
Developer, Developer shall have the right to: (i) terminate this Agreement, whereupon
the parties shall be released from all further obligations under this Agreement, except the
obligations which by their express terms survive a termination, or, alternatively, (ii) seek
specific perFormance of the City's obligations hereunder and/or any other equitable
remedies, without thereby waiving damages.
B. Developer Default. In the event of a default by Developer under
this Agreement which is not cured within ten (10) days following written notice from the
City, the City at its option shall have the right to: (i) terminate this Agreement, whereupon
the parties shall be released from all further obligations under this Agreement, except the
obligations which by their express terms survive a termination, or, alternatively, (ii) seek
specific perFormance of Developer's obligations hereunder and/or any other equitable
remedies, without thereby waiving damages
11. Brokers. The parties each represent and warrant to the other that they
have not dealt with any real estate broker, salesman or finder in connection with this
transaction. If a claim for brokerage fee or commission in connection with the transaction
is made by any broker, salesman or finder claiming to have dealt through or on behalf of
one of the parties hereto �"Indemnitor"), Indemnitor shall indemnify, defend and hold
harmless the other party hereunder ("Indemnitee"), and Indemnitee's members,
shareholders, partners, officers, directors, employees, agents and representatives, from
all liabilities, damages, claims, costs, fees and expenses whatsoever (including
reasonable attorney's fees and court costs at trial and all appellate levels) with respect to
said claim for brokerage fee or commission. The provisions of this paragraph shall
survive the Closing and any cancellation or termination of this Agreement.
11
12. Notices. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given if delivered by
hand, sent by facsimile transmission, sent by recognized overnight courier (such as
Federal Express) or mailed by certified or registered mail, return receipt requested, in a
postage prepaid envelope, and addressed as follows:
If to the City at:
With a copy to:
If to Developer at:
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attn: City Manager
Fax. No. (727) 562-4052
Pamela K. Akin, Esq.
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
Fax No. (727) 562-4021
Paradise Group, LLC
2901 Rigsby Lane
Safety Harbor, Florida 34695
Attn: Mr. Michael P. Connor
Fax No. (727) 726-2337
With a copy to: Macfarlane Ferguson McMullen, P.A.
Attn: Brian J. Aungst
625 Court Street
Clearwater, Florida
Fax No. (727) 442-8470
Notices personally delivered, sent by facsimile transmission or sent by overnight courier
shall be deemed given on the date of delivery and notices mailed in accordance with the
foregoing shall be deemed given three (3) days after deposit in the U.S. mails. Each
party shall be entitled to change its address for notices from time to time by delivering to
the other party notice thereof in the manner herein provided for the delivery of notices.
13. Risk of Loss. If, between the date hereof and Closing, the Parking Unit or
any portion thereof is damaged or destroyed by fire or other casualty or taken by
eminent domain, Developer shall promptly repair and restore the Parking Unit to the
same condition as existed before the fire or casualty and Closing shall be deferred for a
commensurate period of time to permit such repair and restoration. In such event,
Closing shall be rescheduled to the date which is ten (10) days following the restoration
of the Parking Unit to the condition that existed immediately prior to the damage or
taking (or as close to such condition as possible, in the case of eminent domain) and
issuance of a new certificate of occupancy for the Parking Unit (if such restoration
requires same). In the case of eminent domain, at Closing, the City shall be entitled to all
condemnation awards for the Parking Unit, less any portion thereof used to restore the
12
Parking Unit to the condition required herein.
14. Radon Gas. Radon is a naturally occurring radioactive gas that, when it
has accumu�ated 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.
15. Memorandum of Aqreement. The parties hereto shall execute and record
on the Public Records of Pinellas County, Florida, a memorandum of agreement setting
forth the general provisions of this Agreement to place third parties on notice and record
of the of the rights of the City and obligations of Developer.
16. Miscellaneous.
A. Definition of Terms is set forth in Exhibit "E" attached hereto and
made a part hereof.
B. This Agreement shall be construed and governed in accordance
with the laws of the State of Florida. All of the parties to this Agreement have participated
fully in the negotiation and preparation hereof; and, accordingly, this Agreement shall not
be more strictly construed against any one of the parties hereto.
C. In the event any term or provision of this Agreement be determined
by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be
given its nearest legal meaning or be construed as deleted as such authority determines,
and the remainder of this Agreement shall be construed to be in full force and effect.
D. In the event of any litigation between the parties under this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court
costs at all trial and appellate levels. The provisions of this subparagraph shall survive
the Closing coextensively with other surviving provisions of this Agreement.
E. In construing this Agreement, the singular shall be held to include
the plural, the plural shall include the singular, the use of any gender shall include every
other and all genders, and captions and paragraph headings shall be disregarded.
Handwritten or typewritten provisions initialed by Developer and the City shall prevail
over any conflicting printed provisions of this Agreement.
F. All of the exhibits attached to this Agreement are incorporated in,
and made a part of, this Agreement.
G. Time shall be of the essence for each and every provision hereof.
13
H. If any date upon which, or by which, action required under this
Agreement is a Saturday, Sunday or legal holiday recognized by the Federal
government, then the date for such action shall be extended to the first day that is after
such date and is not a Saturday, Sunday or legal holiday recognized by the Federal
government.
I. This Agreement is not assignable without the consent of the other
party.
J. This Agreement constitutes the entire agreement between the
parties and there are no other agreements, representations or warranties with respect to
the subject matter hereof other than as set forth herein. This Agreement may not be
changed, altered or modified except by an instrument in writing signed by City and
Developer. This Agreement shall be binding upon the parties hereto and their respective
successors and permitted assigns.
K. This Agreement may be executed in multiple counterparts each of
which shall be deemed an original, but all of which taken together shall constitute one
and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK -
SIGNATURES ON FOLLOWING PAGE(S)]
14
EXECUTED as of the date first above written.
WITNESSES:
Print Name:
nnt ame:
Attest:
�:�
Rosemarie Call, City Clerk
Approved as to form:
Pamela K. Akin
City Attorney
15
DEVELOPER:
PARADISE GROUP, LLC, a Florida
limited liability company
By: PDG IV, Inc., a Florida corporation,
its managing member
:
Michael P. Connor, President
CITY:
THE CITY OF CLEARWATER, FLORIDA, a
Florida municipal corporation
�.
George N. Cretekos, Mayor
EXHIBIT A
Leqal Description of Proqertv
The land referred to herein below is situated in the County of Pinellas, State of Florida,
and described as follows:
Lots 32 through 43, Block "B", FIRST ADDITION TO CLEARWATER BEACH PARK,
according to the map or plat thereof as recorded in Plat Book 15, Page 80, Public
Records of Pinellas County, Florida, together with the adjacent 1/2 of a vacated alley
lying along the East boundary thereof.
AND
Lots 2 through 8, Block "A", as appearing on the plat named A RE-PLAT OF BLOC.K "A"
AND LOTS 1 TO 15 INCL. BLOCK "B" OF CLEARWATER BEACH PARK FIRST
ADDITION, according to the map or plat thereof recorded in Plat Book 21, Page 21,
Public Records of Pinellas County, Florida, together with the adjacent 1/2 of a vacated
alley fying along the West boundary thereof.
16
EXHIBIT "A-1"
Lots 2 through 8, Block "A", as appearing oi
AND LOTS 1 TO 15 INCL. BLOCK "B"
ADDITION, according to the map or plat 1
Public Records of Pinellas County, Florida,
alley lying along the West boundary thereof.
i the plat named A RE-PLAT OF BLOCK "A"
OF CLEARWATER BEACH PARK FIRST
iereof recorded in Plat Book 21, Page 21,
together with the adjacent 1/2 of a vacated
EXHIBIT C
(Exceptions to Title)
1. Taxes and assessments for the year of ciosing and subsequent years, which are
not yet due and payable.
2. Restrictions and 20' building line as shown on the plat of FIRST ADDITION TO
CLEARWATER BEACH PARK, as recorded in Plat Book 15, Page 80, but
deleting any covenant, condition or restriction indicating a preference, limitation
or discrimination based on race, color, religion, sex, handicap, familial status or
national origin to the extent such covenants, conditions or restrictions violate 42
USC 3604(c).
3. Easement for drainage and utilities in favor of City of Clearwater over and across
the vacated alley as described in Ordinance No. 4535-88 recorded in Book 6688,
page 1361.
EXHIBIT D
WARRANTY DEED
THIS INDENTURE, Made this day of , 2014, Between
PARADISE GROUP, LLC, a Florida limited liability company, whose address is 2901
Rigsby Lane, Safety Harbor, Florida 34695, grantor*, and THE CITY OF CLEARWATER,
FLORIDA, a Florida municipal corporation, whose address is 112 South Osceola Avenue,
Clearwater, Florida 33756, grantee*,
WITNESSETH, That said grantor, for and in consideration of the sum of Ten Dollars, and
other good and valuable considerations to said grantor in hand paid by said grantee, the receipt
whereof is hereby acknowledged, has granted, bargained and sold to the said grantee, and
grantee's heirs and assigns forever, the following described land, situate, lying and being in
Pinellas County, Florida, to-wit:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF.
SUBJECT TO covenants, conditions, easements, restrictions and those matters as
set forth on Exhibit "B" attached hereto, and subject to taxes for the year 2014 and
subsequent years.
Tax Parcel No.
and said grantor hereby fully warrant the title to said land, and will defend the same against the
lawful claims of all persons whomsoever.
*"Grantor" and "grantee" are used for singular or plural, as context requires.
IN WITNESS WHEREOF, Grantor has hereunto set grantor's hand and seal the day and
year first above written.
Signed, sealed and delivered
in our presence:
PARADISE GROUP, LLC, a Florida
limited liability company
By: PDG IV, Inc., a Florida corporation,
its managing member
:
Name:
Name:
Michael P. Connor, President
STATE OF
COUNTY OF
I HEREBY CERTIFY that on this day personally appeared before me, an officer duly
authorized to take acknowledgements, Michael P. Connor as President of PDG IV, Inc., a Florida
corporation, the managing member of PARADISE GROUP, LLC, a Florida limited liability
company, who is personally known to me or who has produced as
identification, and he is the person described in and who executed the foregoing Warranty Deed
and he acknowledged then and there before me that he executed the same as such officer on
behalf of such corporation as such managing member on behalf of said limited liability company
for the purposes therein expressed; and that said Deed is the act and deed of said limited liability
company.
WITNESS my hand and official seal this day of , 2015.
Name:
Notary Public
My Commission expires:
EXHIBIT "E"
(Definition of Terms)
For purposes of this Agreement, the following terms defined in this Exhibit shall have the
meanings attributed to them below except as herein otherwise expressly provided:
"Applicable Laws" means any law, enactment, statute, code, ordinance, administrative
order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ,
injunction, franchise, permit, certificate, license, authorization, or other direction or
requirement of any Governmental Authority, political subdivision, or any division or
department thereof, now existing or hereafter enacted, adopted, promulgated, entered or
issued.
"Beach bv Design" or "Plan" means the strategic redevelopment plan for Clearwater
Beach dated 2001 which was adopted by the City Council pursuant to the provisions of
the Pinellas County Planning Councils Rules for the designation of a Community
Redevelopment District, as amended.
"City" means the City of Clearwater, Florida, a Florida municipal corporation.
"City Council" means the governing body of the City.
"Citv Parkinq Garage Standards" means the City's standards for the construction of
public parking facilities.
"Conceptual Plans" means the conceptual plans for the Project approved by the parties
attached hereto as Exhibit "B".
"Developer" means, for the purposes of this Agreement, Paradise Group, LLC, a Florida
limited liability company, and its successors and assigns.
"Effective Date" means the date of approval and final execution of the Agreement by all
parties.
"Exhibits" means those agreements, diagrams, drawings, specifications, instruments,
forms of inspections, and other documents attached and designated as exhibits to, and
incorporated in and made a part of, this Agreement.
"Governmental Authoritv" means any federal, state, county, municipal or other
governmental entity or any instrumentality of any of them, having jurisdiction over the
Project.
"Land Development Requlations" means the Community Development Code,
Comprehensive Plan, Beach by Design and related regulations applicable to the
development of the Project in the City of Clearwater.
"Non-Ad Valorem Revenues" means all revenues and taxes of the City derived from any
source whatsoever other than ad valorem taxation on real and personal property, which
are legally available and unrestricted for the payment of the [purchase price], subject to
the provision and appropriation of adequate Non-Ad Valorem Revenues for the payment
of essential governmentat services of the City.
"Parkinc� Unit" means a commercial condominium unit consisting of city parking garage
parking spaces and Developer parking garage spaces constructed in accordance with
this Agreement and all City codes and regulations.
"Permits" means all land devetopment approvals, permits, and consents required to be
granted, awarded, issued or given by any Governmental Authority under any Applicable
Laws in order for construction of the Project, or any part thereof, to commence, continue
or be completed.
"Plans and Specifications" means the site plan for the Project to be filed with the City as
required by the Land Development Regulations for the purpose of review and approval.
"ProjecY' means, generally, the development and construction of a 11,000 square foot
retail/commercial project with a commercial parking garage containing 702 parking
spaces. The Project will consist of the Retail Unit(s) and the Parking Unit, as more
particularly described in this Agreement.
"Propertv" means that certain property located at 483 Mandalay Avenue, Clearwater,
Florida, which is to be acquired by the Developer, which Property is more particularly
described in the legal description attached as Exhibit "A" to this Agreement.
"Retail Unit(s)" means 11,000 square foot retail/commercial unit.
Exhibit D
SITE PLANS
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Flow
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60
54
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110
252
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121
121
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130
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EXHIBIT E
PROJECT DEVELOPMENT SCHEDULE
EXHIBIT F
REQUIRED PERMITS
Pelican Walk Parkin Gara e— Re uired Perrr�i#S
1, City of Clearwater— Development Order—Approval at Community Deveioprr�ent Board {Cb6j
2. Southwest Florida Water Management District (SWFWMD}- Environmental Resource Permit {ERP)
3. Southwest Flor)da Water Management Distrid (SWFWMD) — Dewatering pe��
4. Departrnent of Environmental Protectfon (pEPj -- Water and Sewer Permits
5. Department of Envfronmentaf Protection (pEP) - Nationai Potlutant Discharg¢ E�fmination 5ystem
Pennit (NPDES)
6. City of Clearwater- 8uilding and Site Construdion Permits
a. City of Clearwater — Fire Protection System Permittfng
b. City of Clearwater— Electrical
c. City ot' Clearwater — Plumbing
7. tity of Clearwater—Signage Permit
EXHIBIT G
CITY PARKING GARAGE REQUIREMENTS
�
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ENGINEEli3 ARCHITECTS
Governln8 Codea and References (SECTION Aj
])
Zj
3)
4)
2fl10 Florida Building Code.
Code of Ordinances: Cify of Cledrwater, FL.
� Vr:...findiaahs.cum
71MOTHY HAI;H� :: n�sc>„r:',TES, INC.
103Cb ,'J.:J. ci" ST�iEET. 5,!'E 2� 1
`.' �'.' . �l 33 i /o
3(lb'bR2-I'2:i 30�`-LJ2-J113
Code and Land Development Code, County of Pinelfas County, FL.
Beach by Design: A Preliminary Design for Clearwater Beach - including Section VII.
Design Guidelines.
5) NFPA l0i Life Safety.
6) NFPA 88A Standard for Parking Structures.
7) ACI 318-05 Building Code Requirements for Structural Concrete.
8j ACI 362.1 R-97 Guide for the Design of Durable Concrete Pa��ng Structures.
9) ANSI A T 17.1 Accessible and Usable Buildings and Facilities.
10J Design Team is required to design the project under the applicable building codes,
regulations and standards at the time of the design submiuion for approval and
construction.
11) Design Team shali incorporqte sustainable design practices into the project where
practicable, such as recycled moter�als, energy sfficient lighfing, etc.
1 l. Aj LEED certiiied is not required
11. A.2) Pre-casf recycled contenf shall be i5% of the steel used in the concrete and
fly a5h shall be 25� of fhe cementatious material.
Functlonal ProWafona (SECTION B)
1) 9'-0" x 18'-0" typical paricing spaces
a. Additional 1'-0" width shall be included for spaces adjacent to confinuous
obstructions (i.e, cofumns, walls, fences�.
2) Floor clearance shaH be 7'-6" throuAhout the g�age with the folbwing exception:
a. Minimum clearance of 7'-0" is acceptable over the spaces within the
cantilevered section of the garage only.
3) ADA van space location cleprance: Minimum of 8'-2".
4j ADA spaces shall be located adjacent to stairlelevotor towers to minimize travel
distance.
5) Wheelstops shall be provided at ADA spcaces only, as required.
6) Ramp sbpes
a. Typical floors shall be belween 59� and 6.2596.
b. Speed ramps shall be less than 12.5� sfope, blended, so ihat there is no more
than a 10� difference between transition points.
c. Ar�as neor parking equipment shall be less than 2� slope other than at the
acceu gate or� the top floor, if constructed.
7j End bay clearances: tJtilize 26'-6" clear at two-way crossovers for an accepfable
ievel of service iuming radius.
8) Queuing: Minimum distance 40'-0" for entry and exit Ipnes.
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Junc 25, 201 �
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9) Minimize use o� curbs within fhe parking sfructure (idecilly only located for ADA
spacesj.
i 0) Moximae openings in interior and exterior walls.
� 1) Utilize exterior shear walis for improved passive security. Any use of interior shear walls
shail include openings to help improve visibility.
12} Minimize areas of conflict between pedestrions and vehicles. Where areas of conflict
exist, provide a means of traffic calming devices {flashing signals, crosswalk striping,
bollords, etc.).
13j Eliminate hidng places such as solid walls and deep comers.
14j Means to prevent bird nesiing including sloped fedges, spikes, and repellents.
15) Provide rooms as required for Storage/Utility, Electrical, Mechanical, Transformer,
Generator, Bevator Machine.
l 6) Provide three Icanes for entry/exit with a loyout of one lane for entry and two lanes for
exiting.
Amenittes (SECTION C)
1) Bike racks Iocated on ground floor.
2) Cleariy defined pedestrfan paths from the garage to the outside.
3} Provide pointed lanes to help align vehicles when traveling in any non-parking areas,
such as a speed ramp.
4) Provide both floor arrows for defining directional travel and ovefiead signs for
reinforcing ha�c ilow.
Archffectural Provisiona (SECTION D}
1) Sta� towers/Efevator towers
o. ADA compliont design and layoui.
b. Moximize openness within stair towers for increased visibility.
The City wil! contribute up to �75,000 for this feature.
c. Include glass back elevators for increased visibility.
The City will contribute up to $25,000 for this feature.
d. Galvanized steel handraiis.
e. Abras+ve nosings cast into stair treads.
f. Enclose bottom n�n of stairs af ground levef to eliminafe hiding places.
2) E�evators
a. Traction type elevators, minimum of two cabs.
b. Vanda! resistance cab, hoistway, fixture finishes r.e. t xf d st i le
The Cify will contribute up to $7,000 for this feature.
c. Emergency call equipped.
d. !n the event of power loss, the elevators will move to the ground floor and fhe
doors will open and remain open unti! power is retumed to the building.
e. Durabie floor system (i.e, continuous vinyl tile).
TimHaa,��s
�'r. Michael Quillen
Pclicdn !�d�lk Pdri:in� Gr�ragc: — Cc��ign Gu: ±clinc� ;
Jun� �5, 20'I�I
Ps�y� 3
3) Signage
a. Easy to read, intuitive wayfinding signage for both vehicles and pedestrians.
b. Scotchlite reflective signs.
Struclural Provtstons {SECTION E)
i) Design shall comply with all applicabie codes dnd standards, including but not
limited to:
• lntemational Building Code
• ACI 3i8- Building Code Requirements for Reinforced Concrete
• AISC Steel Construction Manual
• ACI 362 - Durability of Parlcing Structures, Zone 1
2) Galvanized steel precast connections thot are protecfed by grout or cast-in-place
toppings or washes.
3) Stainless steel precast connections (i.e. tee to tee) that are protected by sealant
alone.
4J Minimize exposed welded or bolted connections.
5) Concrete slatron-grade with toofed jants and vapor barrier beneath occupied
areos.
6) Tooled joints with sealants in cast-in-place toppings or washes.
7� Column spacing of 36' which corresponds to industry standord precost tees provided
in Florida, {Delefed excess language - CHLj
8) Precast double tee members shatl be sized at 12'-0" wide by o minimum of 28" deep,
subject to the successful precast supplier. Precast tees shall hcave b�ock outs
(openings) at the top of the tee/underside of slab location for accommodating
conduit runs.
9) Provide a minimum of 7'-6" clearance throughout the entire parking gorage, except
those areas that have been designed to accommodate AbA requirements, where a
minimum of 8'-2" is required except over parking spaces within the cantilevered
section as previously noted,
10) The typicai exterior bay, where a double ioaded parlcing layout is used, fhe minimum
bay will be 36'-0" by 60'-0".
11 j Precast flooring system will consist of a pretopped system with topping over the retail
area for waterproofing.
WaterproofJnp Provlslor�s (SECTION F)
1 j Expansion jants located at high points .
2) Compreuible filler material at verticol expansion joints between garage and stair
towers as needed.
3) Elastomeric deck coating above all occupied spaces and MEP rooms.
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Aclfcan `.�U�Ik Farkinu Gar..;c — Dcsi,;n Guidelincs
Junc �5, 'c014
P2ge 4
4) Treat fhe exposed ramp as a plaza deck to provide increased waterproo�ng
protection for occupied space below.
Plumbinq Provisfona (SECTION G)
1) Cold water risers and hose bibs af each parking level centrally located for garage
washdown.
2) Sufficient slope on floor members and an adequate number of floor drains on all
levels fo negaie any areas of water ponding.
3) Floor drains used specifically for parking structures, such as Watts FD-900 epoxy
coafed models or equal.
4j Galvanized steel pipe guards for any exposed risers for bumper guard protection.
S) Storm retention system shal( be easily acces�ible for mainfenance.
Fke Pro#ecflon Provlstons (SECTION H)
1 j Portable fire extinguishers as required by NFPA 10 Standard for Portoble Fire
Extinguishen.
2� The garage f�-e-protection sysfem shall comply with appropriate f�e and building
codes.
3} Gcalvanized stee! pipe guards ior any exposed rise�s for bumper guard protection.
Electdca! Prov�lons (SEC'RON I)
1) Lighfing levels -
a. Meet or exceed curreni minimum IES standards.
b. Parking/Drive aisles - minimum 10 fc averoge.
c. Vehicuiar Entry/6cffs - minimum 50 fc average.
d. Stair towers/Lobby interiors/Ground level retail areas and corridors - minimum
20 fc average).
e. Provide additionaf lighting at any interior shear walls.
f. Emergency lighting to meet Code requ�ements.
g. Provide photometrics of light levels listed above.
2) Lighting fixture
a. Fluorescent type fixfures with uplight component.
b. If the City chooses to upgrade to LED lighting, the City wi11 pay the pre-
determined cost dtfference related to the upgrade.
3) Lighting control system
a. Photocells for controlling perimeter lighting and vehiculpr entry/exit areas.
4j Receptacles
a. Weather proof enclosed types located at each stair tower.
5) Conduit
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P'�. f,�ich?el G�uillen
Fc1i� �n iNr(': Parl�in;� G�r::�c — Dc�i�n Guidclinc�
Junc 25, 2C�1�:
P�ge 5
a. No placement within expansion joints.
b. Expansion ccapacity when crossing an expansion joint.
c. Fxposed conduit on the exterior of the garage is not permitted.
6) Security System
a. Conshuction shall be conducive for future installaf ion of o CCN or wireless
secu�ity system to cover al! (evels of the parking garage, specifically at Stair
tower locations and the ground level, specificaBy at the retail corridor and
vehicular entry/exits.
7) Emergency Power
a. Lighting fixtures wiii have emergency battery back-up power and the
eievators will have emergency feature5 noted above.
Paridng Access end Revenue Confrol System Provlsion: (SECTION J)
1) Pay-on-foot system including barrier gates, ticket spitters, detector loops, pay stations
{minimum of two), etc.
2) Adequate signage to inform pairons of the payment method fo include signage
locations throughout the parking garage on ali ftoors and near the pay s�ations - this
signage shall be consistent with signage used in other city-owned garages in
Clearwater Beach.
3) For accessing nested areas, the parking access system shatl include anti-ppssback
provisions/capabilities.
TimHaa�a��
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