DEVELOPMENT AGREEMENT - COURT STREET RESIDENCE INN
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This Development Agreement (this "Agreement") is made as of this U
day of , 2007, by and between the COMMUNITY REDEVELOPMENT AGENCY
OF THE ITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State
of Flori created pursuant to Part III, Chapter 163, Florida Statutes ("Agency"), and
CLEARWATER HOSPITALITY PROPERTIES, L.L.c., a Delaware limited liability company
("Developer").
DEVELOPMENT AGREEMENT
(Court Street Residence Inn)
WIT N E SSE T H:
WHEREAS, Developer proposes to develop certain parcels located at 940 Court Street,
Clearwater, Florida, and legally described as set forth in Exhibit A, as a limited services hotel to
be operated initially under a franchise agreement with Marriott International, Inc. as a
"Residence Inn by Marriott" (the "Project") as more specifically described and defined herein, in
the community redevelopment area of the City;
WHEREAS, Developer has requested certain assurances and incentives to insure the
success of the Project, which negotiations have resulted in this Agreement;
WHEREAS, at a duly called public meeting on rY\ ~. \~ , 2007, the Agency
approved this Agreement and authorized and directed its executIon by the appropriate officials of
the Agency;
WHEREAS, the members (as that term is defined in the operating agreement of the
Developer) of Developer have approved this Agreement and has authorized and directed certain
individuals to execute this Agreement on behalf of Developer; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
ARTICLE L DEFINITIONS.
1.01. Definitions. The terms defined in this Article I shall have the following
meanings, except as herein otherwise expressly provided:
(1) "Act" means the Constitution of the State of Florida; Section 163.01, Florida
Statutes, Part III, Chapter 163, Florida Statutes; Chapter 166, Florida Statutes, other applicable
provisions of law, and ordinances and resolutions of the City and the Agency implementing
them.
(2) "Agency" means the Community Redevelopment Agency of the City, as created
by Resolution No. 81-68 of the City, adopted by the City Council on August 6, 1981, including
any amendments thereto, and any successors or assigns thereto.
(3) "Agreement" means this Development Agreement, including any Exhibits, and
any amendments hereto or thereto.
(4) "Agreement Expiration Certificate" means the instrument executed by the parties
hereto as provided in Section 11.19 certifying that all obligations of the parties hereto have been
satisfied and this Agreement has expired in accordance with its terms, the form of which is
attached hereto as Exhibit E.
(5) "Agreement Termination Certificate" means the instrument executed by the
parties hereto as provided in Section 9.06 stating that this Agreement has been terminated prior
to its Expiration Date as provided in Section 9.05, the form of which is attached hereto as Exhibit
F.
(6) "Area" means the area located within the corporate limits of the City having
conditions of slum and blight (as those conditions are defined in the Act) as found by the City
Council in Resolution No. 81-67, adopted by the City Council on August 6, 1981, and as
amended by Resolution No. 03-22, adopted by the City Council on May 1, 2003.
(7) "Authorized Representative" means the person or persons designated and
appointed from time to time as such by the Developer or the Agency, respectively, pursuant to
Section 2.04.
(8) "Building Permit" means, for all or any part of the Project to be constructed on
the Site, any permit issued by the City authorizing, allowing and permitting the commencement,
prosecution and completion of construction to the extent provided in said permit.
(9) "City" means the City of Clearwater, Florida, a Florida municipal corporation,
and any successors or assigns thereto.
(10) "City Council" means the governing body of the City, by whatever name known
or however constituted from time to time.
(11) "Commencement Date" means the date of issuance of the foundation permit for
the Project and commencement of construction pursuant thereto.
(12) "Completion Date" means the date on which construction of the Project IS
substantially complete as evidenced by a Completion Certificate.
(13) "Contractor" means one or more individuals or firms constituting a general
contractor or other type of construction contractor properly licensed by the State of Florida or
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other appropriate jurisdiction to the extent required by applicable law, authorized to perform
construction contractor services in the State of Florida, registered with the City as required by
applicable law, bonded and insured to the extent required by applicable law and this Agreement,
including the Developer or any affiliates of the Developer.
(14) "Developer" means Clearwater Hospitality Properties, L.L.c., a Delaware limited
liability company, and any successors and assigns thereof, including any entity, partnership, joint
venture, or other person in which Clearwater Hospitality Properties, L.L.C., is a general partner
or principal, but not including any entity, partnership, joint venture, or other person in which
Clearwater Hospitality Properties, L.L.C. is a general partner or principal which is not
undertaking or participating in any development of the Project, or any part thereof.
(15) "Effective Date" means the date determined in accordance with Section 11.20
when the Memorandum of Development Agreement is recorded and this Agreement becomes
effective.
(16) "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.
(17) "Expiration Date" means the date on which this Agreement expires, as evidenced
by the Agreement Expiration Certificate being recorded in the public records of Pine lias County,
Florida, as provided in Section 11.19 hereof.
(18) "Impact Fees" means those fees and charges levied and imposed by the City,
Pine lIas County and any other governmental entity on projects located on the Site for certain
facilities and services impacted by development such as the Project.
(19) "Permits" means all zoning, variances, approvals and consents required to be
granted, awarded, issued, or given by any governmental authority in order for construction of the
Project, or any part thereof, to commence, continue, be completed or allow occupancy and use,
but does not include the Building Permit.
(20) "Plan" means the community redevelopment plan for the Area, including the Site,
as adopted by the City Council on August 17, 1995 by enactment of its Resolution No. 95-65,
and including any amendments to the Plan.
(21) "Project" means the development project as identified in the first recital of this
Agreement, being a limited services hotel containing one hundred and fifteen (115) guest rooms
in a building of approximately 88,090 square feet, plus related amenities such as breakfast room
and swimming pool. The designation of or reference to the Project as a "Residence Inn by
Marriott" is subject to the disclaimers and limitations set forth in Section 4.02.
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(22) "Project Plans and Specifications" means the plans and specifications pertaining
to the construction, installation and equipping of the Project, including the schedule for
completing the Project, consisting ofthe plans and specifications.
(23) "Project Professionals" means any architects, attorneys, brokers, engineers,
consultants, planners, construction managers or any other persons, or combination thereof,
retained or employed by the Developer in connection with the planning, design, construction,
permit applications, completion and opening ofthe Project, but does not include the Developer.
(24) "Site" means that certain property with a street address of 940 Court Street,
located in Clearwater, Florida, as more particularly described on Exhibit A attached hereto, on
which the Project is to be located.
(25) "Site Plan" means the depiction and description of the Project on the Site, the
initial version of which is attached hereto as Exhibit B.
(26) "Termination Date" means the date on which this Agreement is terminated by any
party hereto as provided in Section 9.05, and as evidenced by the Agreement Termination
Certificate.
(27) "Unavoidable Delay" means those events constituting excuse from timely
performance by a party hereto from any of its obligations hereunder, as such events are defined
in and subject to the conditions described in Article 10 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', "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
(2006), as amended from time to time.
ARTICLE 2. PURPOSE; PROPOSAL
2.01. Intent: Purpose of Agreement.
(a) The purpose of this Agreement is to (i) secure economic assistance through the
Agency which supports the implementation of the City of Clearwater's "District Vision" for the
revitalization of the Downtown Core; and (ii) to further the implementation of the Plan by the
development and construction and operation of the Project thereon in accordance with the
Project Plans and Specifications, all to enhance the quality of life, increase employment and
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improve the aesthetic and useful enjoyment of the Area through the eradication of conditions of
blight, all in accordance with and in furtherance of the Plan and as authorized by and in
accordance with the Act.
(b) (1 )
Specifications.
The Site is to be redeveloped according to Project Plans and
(2) As provided in this Agreement, the Agency shall undertake certain public
actions pursuant to the Act and as implementation of the Plan, and provide assistance in
obtaining such approvals by governmental authorities as are necessary for development of the
Project.
(c) As provided in this Agreement, the Developer shall carry out the redevelopment
of the Site by obtaining approvals by governmental authorities necessary for development of the
Project, and constructing various private improvements on the Site.
2.02. Developer's Proposal. The redevelopment of the Site, specifically including the
design, construction, equipping, completion and use of the Project, and each component thereof,
is hereby found by the Agency and acknowledged by the Developer: (1) to be consistent with
and in furtherance of the objectives of the Plan, (2) to conform to the provisions of the Act, (3) to
be in the best interests of the citizens of the City, (4) to further the purposes and objectives of the
Agency, and (5) to further the public purpose of eradicating conditions of blight in the Area.
The parties recognize and agree that during the process of review and approval provided for in
this Agreement the design of the Project may be subject to change and modification as may be
either agreed to by the parties or required as provided herein or by the appropriate regulatory
authority, and should any changes be necessary or desirable the parties agree that they will act
expeditiously and reasonably in reviewing and approving or disapproving any changes or
modifications to the Project.
2.03. Cooperation of the Parties. The parties hereto recognize that the successful
development of the Project and each component thereof is dependent upon continued
cooperation of the parties hereto, and each agrees that it shall act in a reasonable manner
hereunder, provide the other party with complete and updated information from time to time,
with respect to the conditions such party is responsible for satisfYing hereunder and make its
good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this
Agreement are carried out to the full extent contemplated hereby and the Project is designed,
constructed, equipped, completed and operated as provided herein.
2.04. Authorized Representative.
(a) Each party shall designate an Authorized Representative to act on its behalf to the
extent of the grant of any authority to such representative. Written notice of the designation of
such a representative (and any subsequent change in the Authorized Representative) shall be
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given by the designating party to the other party in writing in accordance with the procedure set
forth in Section 11.03 hereof.
(b) Except as otherwise expressly provided in this Agreement, whenever approval or
action by the Developer or the Agency is required by this Agreement, such action or approval
may, in the discretion of the party considering such approval or action, be taken or given by the
Authorized Representative thereof. A party to this Agreement may rely upon the representation
of the other party's Authorized Representative that such person has the requisite authority to give
the approval or take the action being done by that Authorized Representative. A party may not
later deny that its Authorized Representative had the authority represented to and relied upon by
the other party or revoke or deny any action taken by such Authorized Representative which was
relied upon by the other party.
(c) The Developer does hereby notify the Agency that its initial Authorized
Representative for the Project is William H. Long, Jr. of The Clarkson Company.
(d) The Agency does hereby notify the Developer that its initial Authorized
Representative is Rod Irwin, Executive Director of the CRA.
ARTICLE 3. LAND USE REGULATION.
3.01. Zonine:. On the Effective Date, the zoning classification for the Site is
"Downtown District", abbreviated as "D". The parties recognize and acknowledge that the
zoning classification of the Site as of the Effective Date, as well as the Flexible Development
Approval issued by the Community Development Board (CDB) on May 16, 2006, permits
development of the Project.
3.02. Redevelopment Plan. The Agency represents to the Developer and the Developer
acknowledges that as of the Effective Date, the provisions of the Plan pertaining to the Site were
consistent with the Project as contemplated by the Proposal and this Agreement.
3.03. Development of Ree:ional Impact. The parties hereto acknowledge and agree that
the Project as contemplated by the Proposal and this Agreement was not and is not as of the
Effective Date a "development of regional impact" within the meaning of Section 380.06,
Florida Statutes.
3.04. Permits.
(a) The Developer shall- prepare and submit to the appropriate governmental
authorities, including the City, the applications for each and every Building Permit and any and
all necessary Permits for the Project, and shall bear all costs of preparing such applications,
applying for and obtaining such permits including applicable application, inspection, regulatory
and Impact Fees or charges pertaining to the Project, including, but not limited to, any such
permit, review, application, inspection, regulatory or Impact Fees.
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(b) The Agency shall cooperate with the Developer in obtaining all necessary Permits
and the Building Permits required for the construction and completion ofthe Project.
(c) The Agency's duties, obligations, or responsibilities under any section of this
Agreement, specifically including but not limited to this Section 3.04 do not affect the Agency's
or 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 or project
regulation.
(d) Notwithstanding any other provisions ofthis Agreement, any required permitting,
licensing or other regulatory approvals by the Agency or the City shall be subject to the
established procedures and requirements of the Agency or 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
Agency or 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.
3.05. Concurrency.
(a) The parties hereto recognize and acknowledge that Florida law (specifically, Part
II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, collectively the
"Growth Management Act") imposes restrictions on development if adequate public
improvements are not available concurrently with that development to absorb and handle the
demand on public services caused by that development. The City has created and implemented a
system for monitoring the effects of development on public services within the City. The
Developer recognizes and acknowledges it must satisfy the concurrency requirements of Florida
law as applied to the Project. Specifically, the Developer covenants and agrees to comply with
the City's land development code, including providing to the City any and all data and analysis
that shows the Project will be consistent with the goals, objectives and policies of the
comprehensive plan for the City, adopted by the City and in effect on the Effective Date, and the
Developer further covenants and agrees to comply with concurrency certification provisions of
the City's land development code.
(b) The Agency represents and warrants and the Developer acknowledges that as of
the Effective Date the Project as contemplated by this Agreement does not require any
reservation of capacity or to seek any approvals as a result of the concurrency requirements
described in subsection (a). If legally obligated in the future to comply with such requirements,
the Developer agrees to seek issuance of a concurrency compliance certificate or other similar
document by whatever name known and a reservation of services capacity under the City's
concurrency management system, and does further agree to maintain such certificate and
reservation. The Developer covenants and agrees with the Agency not to undertake any action, or
fail to take any action, which would cause the City to revoke or invalidate the concurrency
compliance certificate or the reservation of services capacity.
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3.06. Not a Development Order or Permit. The parties do 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.
3.07. Permitted Uses.
(a) The Project shall consist of a limited services hotel and accessory uses.
(b) Provided however, the following uses are prohibited:
1. All uses prohibited by the Clearwater Downtown Redevelopment Plan;
2. Nightclub or bar;
3. Alcoholic beverage package store;
4. Medical or veterinary offices.
ARTICLE 4. PROJECT PLANS AND SPECIFICATIONS.
4.01. Site Plan.
(a) The Developer has prepared and received approval from the COB of a
preliminary Site Plan, a copy of which is attached hereto as Exhibit B, that contemplates
development of the Project consistent with this Agreement. The Developer agrees that during
the term of this Agreement any material changes to the preliminary Site Plan or any subsequent
versions of the Site Plan will be submitted to the City for review in accordance with the Land
Development Code; and Agency for approval, which approval shall not be unreasonably
withheld or delayed.
(b) The Site Plan approved by the COB, is hereby accepted by the Agency and shall
be the basis for and incorporated into the Project Plans and Specifications.
4.02 Proiect Name. The Project from time to time may be or may have been during the
development process referred to or designated as a "Residence Inn by Marriott". The Developer
contemplates initially operating the Project under a franchise agreement with Marriott
International, Inc. The Project will be independently owned and operated, and such designation
or reference shall not be. deemed to be an endorsement or guaranty of the Project by Marriott
International, Inc. nor any indication that Marriott International, Inc. owns any interest in the
Project other than as franchisor.
ARTICLE 5. CONSTRUCTION OF THE PROJECT.
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5.01. Site Clearance. Permits issued by the City for pre-construction activities on the
Site, including site clearance, shall not be considered a Building Permit for purposes of this
Agreement.
5.02. Construction of the Proiect.
(a) (1) The Developer shall construct the Project on the Site substantially in
accordance with the Project Plans and Specifications therefore. Subject to Unavoidable Delay
and the terms and conditions in this Agreement, the Developer shall commence construction of
the Project by August 15,2007.
(2) For purposes of this Section 5.02, "commence construction" of the Project
means commencement of meaningful physical development of that part of the Project as
authorized by the Building Permit, which shall include construction pursuant to a foundation
permit, which is continued and prosecuted with reasonable diligence toward and with the
objective of completion of the Project.
(b) (1) After the Commencement Date, the Developer shall continue, pursue and
prosecute the construction of the Project with reasonable diligence to completion by the
Completion Date and shall not at any time actually or effectively have abandoned (or its
Contractor having actually or effectively abandoned) the Site. For purposes of this subsection
(b), "abandoned" means to have ceased any construction work which effectively advances the
construction of the Project toward completion. The Developer shall complete construction ofthe
Project no later than three (3) years from the Commencement Date.
(2) All obligations of the Developer with respect to commencement,
continuation and completion of construction of the Project shall be subject to delays and
extensions from time to time for Unavoidable Delay. The Developer shall not be deemed to be
in default of this Agreement to the extent construction or completion of the Project, or any part
thereof, is not complete by reason of Unavoidable Delay.
(c) For purposes of this Section 5.02, "completion", "complete", "substantially
complete" or "substantial completion" means, with respect to construction of the Project, a
Certificate of Occupancy for the structure has been issued by the City.
(d) If the Agency believes adequate progress in the construction of the ProjeCt is not
being made, the Agency shall give notice to the Developer that adequate progress is apparently
not being made in the construction of the Project and to respond within ten (10) business days
thereafter as to why adequate progress is or is not being made toward completion ofthe Project.
5.03. Proiect Alterations or Improvements. During the construction of the Project, the
Developer may, from time to time, make alterations and improvements, structural or otherwise,
to the Project as the Developer deems desirable and consistent with the Project Plans and
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Specifications for the use contemplated by this Agreement; provided, however, that prior to the
commencement of any material alterations or improvements of sufficient size and scope as to
constitute a material change in the previously approved Project Plans and Specifications, the
Developer shall notify the Agency of such material change and may submit a change,
amendment or revision to the Project Plans and Specifications to the Agency for review.
Nothing in this Section 5.03 is intended nor shall be deemed to limit or restrict the exercise of
governmental or regulatory powers or authority by the City or any other governmental entity or
to enlarge its regulatory authority.
5.04. Completion Certificate.
(a) (I) Upon the substantial completion of the construction of the Project in
accordance with the provisions of this Article 5, the Developer shall prepare and execute the
Completion Certificate, which shall then be delivered to the Agency. Upon receipt of the
certificate the Agency shall promptly and diligently proceed to determine if construction of the
Project has been completed substantially in accordance with the Project Plans and Specifications
and this Agreement. Upon making such a determination, the Agency shall execute the certificate
and return it to the Developer. The date of the Completion Certificate shall be the date when all
parties shall have executed said certificate.
(2) The Completion Certificate shall constitute a conclusive determination by
the parties hereto of the satisfaction and termination of the obligations of the Developer
hereunder to construct the Project; provided, however, that nothing in this Section 5.04 shall be a
waiver of the rights, duties, obligations or responsibilities of the City or any other governmental
entity acting in its regulatory or governmental capacity or an approval of said construction for
purposes of the issuance of a certificate of occupancy for the Project.
(3) The parties agree that it is their intent that the review by the Agency for
purposes of the Completion Certificate determination pursuant to this Section 5.04 is not to be an
additional or duplicate inspection over and above that required for purposes of the Building
Permit, including the issuance of a certificate of occupancy. The Agency agrees that for
purposes of determining if the Project has been substantially completed in accordance with the
Project Plans and Specifications, the issuance of a certificate of occupancy for the Project shall
be a conclusive determination of substantial completion for purposes of this subsection (a) and, if
such certificate has been determined to have been issued, then the Agency agrees to execute the
Completion Certificate.
(b) (I) If the Agency shall refuse or fail to execute the Completion Certificate
after receipt of a request by the Developer to do so, then the Agency shall, within ten (10) days
after its receipt of such request, provide the Developer with a written statement setting forth in
reasonable detail the reason(s) why the Agency has not executed the Completion Certificate and
what must be done by the Developer to satisfy such objections so that the Agency would sign the
certificate. Upon the Developer satisfying the Agency's objections, then the Developer shall
submit a new request to the Agency for execution of the Completion Certificate and that request
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shall be considered and acted upon in accordance with the procedures in paragraph (a)(l) for the
original request.
(c) The Completion Certificate shall be in a form sufficient to be recorded in the
public records of Pinellas County, Florida. After execution by the Agency, it shall be promptly
returned to the Developer who shall record the certificate in the public records of Pinellas
County, Florida, and pay the cost of such recording.
5.05. Agency Not in Privity with Contractors. The Agency shall not be deemed to be in
privity of contract with any Contractor or provider of goods or services with respect to the
construction of any part of the Project.
ARTICLE 6. FINANCIAL OBLIGATIONS OF AGENCY.
6.01. Reimbursement of ImDact and Permit Fees. Following execution and recordation
of the Completion Certificate, the Agency shall reimburse the Developer in a total amount not to
exceed one hundred and seventy-eight thousand dollars ($178,000.00) for Impact Fees and
permit fees paid by the Developer for the Project as provided herein.. The Developer shall
provide the Agency with documentation verifying both the amount and payment of Impact Fees
and permit fees for the Project by the Developer. Within thirty (30) days after receipt of such
documentation, the Agency shall review the documentation and acknowledge in writing to the
Developer the amount of the Impact Fees and the permits fees to be reimbursed to the Developer
(as set forth in the submitted documentation, but not to exceed $178,000.00). Reimbursement
shall be made within thirty (30) days after the written acknowledgement.
6.02 Payment of Hotel development costs. In order to facilitate the development of a
"Residence Inn by Marriott" within the Area, the Agency agrees to pay not to exceed four
hundred thousand dollars ($400,000) of the Project development cost which represents: (i) costs
for enhanced landscaping; (ii) the cost of enhanced furniture, fixtures and equipment package
required by Marriott International for this location; and (iii) sums necessary to partially offset
increased construction costs in order to allow the Project to meet the minimum rates of return to
support the financing ofthe construction ofthe Project. This amount shall be paid as follows:
a) Within sixty (60) days after the Developer has paid its annual ad valorem taxes
due in connection with the Project (the "Project's Annual Ad Valorem Taxes"), the
Agency shall pay Developer that portion of the tax increment generated by the City
portion of the ad valorem taxes paid by the Project but not to exceed fifty percent (50%)
of the increment of the Project's Annual Ad Valorem Taxes that are paid to the Agency
that year (the "Annual Reimbursement"); and
b) If the first Annual Reimbursement is not sufficient to satisfy the amount due, then
the Annual Reimbursement shall be continued for up to five additional years (for a
maximum total of six years after recordation ofthe Certificate of Completion) until the
Agency has paid to the Developer the amount due pursuant to this subsection. However,
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in no event shall the Agency payments to Developer under this section 6.02 exceed four
hundred thousand dollars ($400,000).
6.03 In the event the Project is not operated under a franchise agreement with Marriott
International, Inc. or a brand or trade name generally regarded as reasonably comparable
to a "Residence Inn by Marriott" under hospitality industry standards, or ceases to be so
operated at anytime within six years after recordation of the Certificate of Completion;
the Agency shall have no obligation to make any payments pursuant to this Article 6.
ARTICLE 7. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE DEVELOPER.
7.01. Representations and Warranties. The Developer represents and warrants to the
Agency that each of the following statements is currently true and accurate and agrees the
Agency may rely upon each of the following statements:
(a) The Developer is a Delaware 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.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which Developer is or will bea 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 Developer,
and neither the execution and delivery thereof, nor compliance with the terms and provisions
thereof or hereof: (1) requires the approval and consent of any other party, except such as have
been duly obtained or as are specifically noted herein, (2) contravenes any existing law,
judgment, governmental rule, regulation or order applicable to or binding on the Developer, (3)
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 the
Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the
Developer's articles of organization, or, any other agreement or instrument to which the
Developer is a party or by which the Developer may be bound.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Developer is or will be a party constitutes, or when entered into will
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constitute, a legal, valid and binding obligation of the Developer enforceable against the
Developer in accordance with the terms thereof, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles in the event that equitable
remedies are involved.
(d) There are no pending or, to the knowledge of the Developer, threatened actions or
proceedings before any court or administrative agency against the Developer, or against any
controlling manager, member, 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 ofthe Developer.
(e) The Developer has filed or caused to be filed all federal, state, local and foreign
tax returns, if any, which were required to be filed by the Developer, and has paid, or caused to
be paid, all taxes shown to be due and payable on such returns or on any assessments levied
against the Developer.
(t) All financial information and other documentation, including that pertaining to
the Project or the Developer, delivered by the Developer to the City and the Agency, was, on the
date of delivery thereof, true and correct.
(g) The principal place of business and principal executive offices of the Developer
are in 3100 University Boulevard South, Suite 200, Jacksonville, Florida 32216 and, until the
expiration or termination of this Agreement, the Developer will keep original or duplicate
records concerning the Project (such as construction contracts, financing documents and
corporate documents) and all contracts, licenses and similar rights relating thereto at an office
located in the corporate limits of the City of Clearwater.
(h) As of the Effective Date, the Developer has the financial capability to carry out its
obligations and responsibilities in connection with the development of the Project as
contemplated by this Agreement.
(i) The Developer (with the assistance of its Project Professionals) has the
experience, expertise, and capability to develop, cause the construction, and complete the Project
and, oversee and manage the design, planning, construction, and completion of the Project, and
to acquire the Site as provided herein.
7.02. Covenants. The Developer covenants with the Agency that until the earlier of the
Termination Date or the Expiration Date:
(a) The Developer shall timely perform or cause to be performed all of the
obligations contained herein which are the responsibility of the Developer to perform.
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(b) The Developer shall assist and cooperate with the Agency to accomplish the
development of the Project by the Developer in accordance with this Agreement, and the Project
Plans and Specifications and will not violate any laws, ordinances, rules, regulations, orders,
contracts or agreements that are or will be applicable thereto, including the Plan and the Act.
(c) Subsequent to the Effective Date, the Developer shall maintain its financial
capability to develop, construct and complete the Project and shall promptly notify the Agency
of any event, condition, occurrence, or change in its financial condition which materially
adversely affects, or with the passage of time is likely to adversely affect, the Developer's
financial capability to successfully and completely develop, construct and complete the Project
as contemplated hereby.
(d) The Developer shall promptly cause to be filed when due all federal, state, local
and foreign tax returns required to be filed by it, and shall promptly pay when due any tax
required thereby so as to avoid an uncured tax lien against the Site.
(e) Subject to and except as permitted by Section 11.01, prior to the expiration or
termination of this Agreement, the Developer shall maintain its existence, will not dissolve or
substantially dissolve all of its assets and will not consolidate with or merge into another limited
liability company, corporation, limited partnership, or other entity without the prior approval of
the Agency, unless the Developer is the surviving entity or retains a controlling interest in the
consolidated or merged entity, in which case no consent by Agency shall be required. In any
event, prior to the expiration or termination of this Agreement, the Developer, will promptly
notify the Agency of any changes to the existence or form of the corporation of Developer.
(f) The Developer 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 Developer unable to
continue to observe and perform the covenants, agreements, and conditions hereof and the
performance of all other obligations required by this Agreement.
(g) Provided all conditions precedent thereto have been satisfied or waived as
provided herein, the Developer shall design, construct and complete the Project such that it is
substantially complete as provided in this Agreement no later than the Completion Date.
7.03 Covenant: Nondiscrimination. The Developer covenants by and for itself and any
successors in interest that there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status, ancestry or
national origin in the marketing, sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the site, nor shall the Developer itself or any person claiming under or through it
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or
vendees ofthe Site.
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ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE AGENCY.
8.01. Reoresentations and Warranties. The Agency represents and warrants to the
Developer that each of the following statements is currently true and accurate and agrees that the
Developer may rely on each of the following statements:
(a) The Agency is a validly existing body corporate and politic of the State of
Florida, is the duly created community redevelopment agency of the City under Part III, Chapter
163, Florida Statutes (known as the Community Redevelopment Act of 1969), has all requisite
corporate power and authority to carry on its business as now conducted and to perform its
obligations hereunder and under each document or instrument contemplated by this Agreement
to which it is or will be a party.
(b) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency 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 Agency, and
neither the execution and delivery thereof, nor compliance with the terms and provisions thereof
or hereof (1) requires the approval and consent of any other party, except such as have been duly
obtained or as are specifically noted herein, (2) contravenes any existing law, judgment,
governmental rule, regulation or order applicable to or binding on the Agency, (3) 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 Agency 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
Agency is a party, specifically including any covenants of any bonds, notes, or other forms of
indebtedness of the Agency outstanding on the Effective Date.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the Agency and the Developer, each document contemplated or required by this
Agreement to which the Agency is or will be a party constitute, or when entered into will
constitute, legal, valid and binding obligations of the Agency enforceable against the Agency in
accordance with the terms thereof, except as such enforceability may be limited by public policy
or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles in the event that equitable
remedies are involved.
(d) There are no pending or threatened actions or proceedings before any court or
administrative agency against the Agency, or against any officer of the Agency, which question
the validity of any document contemplated hereunder, or which are likely in any case, or in the
aggregate, to materially adversely affect the consummation of the transactions contemplated
hereunder or the financial condition of the Agency.
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8.02. Covenants. The Agency covenants with the Developer that until the earlier of the
Termination Date or the Expiration Date:
(a) The Agency shall timely perform or cause to be performed all of the obligations
contained herein which are the responsibility of the Agency to perform.
(b) During each year that this Agreement and the obligations of the Agency under
this Agreement shall be in effect, the Agency 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 Agency.
(c) The Agency shall assist and cooperate with the Developer to accomplish the
development of the Project in accordance with this Agreement and the Project 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 Agency 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.
(d) The Agency shall maintain its financial capability to carry out its responsibilities
as contemplated by this Agreement and shall notify the Developer of any event, condition,
occurrence, or change in its financial condition which adversely affects, or with the passage of
time is likely to adversely affect, the Agency's financial capability to carry out its responsibilities
contemplated hereby.
ARTICLE 9. DEFAULT; TERMINATION.
9.01. Default by Developer.
(a) Provided the Agency is not then in default of this Agreement under Section 9.02
hereof, there shall be an "event of default" by the Developer upon the occurrence of anyone or
more of the following after the Effective Date:
(I) The Developer shall fail to perform or comply with any material provision
of this Agreement applicable to it within the time prescribed therefor; provided, however, that
suspension of or delay in performance by the Developer during any period in which the Agency
is in default of this Agreement as provided in Section 9.02 hereofwill not constitute an event of
default by the Developer under this subsection (a); or
(2) The Developer shall make a general assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a
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petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition
seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation or shall file an answer
admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it
in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or
(3) Within sixty (60) days after the commencement of any proceeding by or
against the Developer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute, law or regulation,
such proceeding shall not have been dismissed or otherwise terminated, or if, within sixty (60)
days after the appointment without the consent or acquiescence of the Developer of any trustee,
receiver or liquidator of any of such entities or of any material part of any of such entity's
properties, such appointment shall not have been vacated.
(b) (1) If an event of default by the Developer described in subsection (a) above
shall occur, the Agency shall provide written notice thereof to the Developer, and, if such event
of default shall not be cured by the Developer within thirty (30) days after receipt of the written
notice from the Agency specifying in reasonable detail the event of default by the Developer, or
if such event of default is of such nature that it cannot be completely cured within such time
period, then if the Agency is not then in default of this Agreement and the Developer shall not
have commenced to cure such default within such thirty (30) day period and shall not diligently
prosecute such cure to completion within such reasonable longer period of time as may be
necessary then, in addition to any remedy available under Section 9.03, the Agency may
terminate this Agreement or pursue any and all legal or equitable remedies to which the Agency
is entitled, provided, however, if the Developer shall fail to cure such event of default within said
thirty (30) day or longer period or ceases to proceed diligently to timely cure such event of
default, then the Agency may proceed to enforce other available remedies without providing any
additional notice to the Developer.
(2) Any attempt by the Agency to pursue any of the above referenced
remedies will not be deemed an exclusive election of remedy or waiver of the Agency's right to
pursue any other remedy to which either may be entitled.
(3) Any time periods or deadlines provided in this Agreement shall be tolled
or extended by the amount of time to cure any event of default hereunder if such event affects the
Developer's or Agency's ability to perform by such deadline or the expiration of such period.
(d) In the event of a termination of this Agreement pursuant to this Section 9.0 I, the
Agency shall not be obligated to make or to continue to make any payments or reimbursements
pursuant to Article 6.
9.02. Default bv the Agency.
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(a) Provided the Developer is not then in default under Section 9.01, there shall be an
"event of default" by the Agency under this Agreement in the event the Agency shall fail to
perfonn or comply with any material provision of this Agreement applicable to it; provided,
however, that suspension of or delay in perfonnance by the Agency during any period in which
the Developer is in default of this Agreement as provided in Section 9.01 hereof will not
constitute an event of default by the Agency under this subsection (a).
(b) If an event of default by the Agency described in subsection (a) shall occur, the
Developer shall provide written notice thereof to the Agency, and, after expiration of the curative
period described in paragraph (c) below, may tenninate this Agreement, institute an action to
compel specific perfonnance of the tenns hereof by the Agency or pursue any and all legal or
equitable remedies to which the Developer is entitled; provided, however, if the event of default
by the Agency occurs on or prior to the Commencement Date, any monetary recovery by the
Developer in any such action shall not include any lost profits or consequential damages and
shall be limited to bona fide third-party out-of-pocket costs and expenses, including reasonable
attorneys' fees, incurred by the Developer in connection with the negotiation of this Agreement
as well as any investigation, due diligence, development, design or construction costs incurred by
the Developer in connection with the proposed acquisition and development of the Site, unless
any such default by the Agency was willful and committed in bad faith with reckless disregard
for the rights of the Developer.
(c) The Developer may not tenninate this Agreement or institute an action described
in paragraph (b) above if the Agency cures such event of default within thirty (30) days after
receipt by the Agency of written notice from the Developer specifying in reasonable detail the
event of default by the Agency, or if any such event of default is of such nature that it cannot be
completely cured within such period, then within such reasonably longer period of time as may
be necessary to cure such default, provided however, if the Agency is proceeding diligently and
in good faith, the curative period shall be extended for a period of not exceeding an aggregate of
thirty (30) days without any approval or consent of the Developer being required, but such
approval will be required (and shall be given or withheld in Developer's sole discretion) if the
curative period is to be extended beyond thirty (30) days after the notice of default has been
given by the Developer to the Agency if the Agency has commenced to cure such default within
such thirty (30) day period and is diligently prosecuting such curative action to completion. The
Agency shall within said thirty (30) day period or such longer period promptly, diligently and in
good faith proceed to cure such event of default after receipt of the notice from the Developer
and shall succeed in curing such event of default within said period of time, provided, however,
if the Agency shall fail to cure such event of default within said thirty (30) day or longer period
or ceases to proceed diligently to timely cure such event of default, then the Developer may
proceed with its available remedies without providing any additional notice to the Agency.
(d) Any attempt by the Developer to pursue any of the remedies referred to in
paragraphs (a), (b), or (c) above will not be deemed an exclusive election of remedy or waiver of
the Developer's right to pursue any other remedy to which it might be entitled.
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(e) Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if such event affects the
Developer's or Agency's ability to perform by such deadline or the expiration of such period.
9.03. Obligations. Rights and Remedies Cumulative. Unless specifically stated herein
to the contrary, the specified rights and remedies to which either the Agency or the Developer
are entitled under this Agreement are not exclusive and are intended to be in addition to any
other remedies or means of redress to which the Agency or the Developer may lawfully be
entitled and are not specifically prohibited by this Agreement. The suspension of, or delay in,
the performance of its obligations by the Developer, while the Agency shall at such time be in
default of their obligations hereunder shall not be deemed to be an "event of default". The
suspension of, or delay in, the performance of the obligations by the Agency while the Developer
shall at such time be in default of its obligations hereunder shall not be deemed to be an "event
of default" by the Agency.
9.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of
the Agency or the Developer to promptly or continually insist upon strict performance of any
term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other
agreement, instrument or document of whatever form or nature contemplated hereby shall not be
deemed a waiver of any right or remedy that the Agency or the Developer may have, and shall
not be deemed a waiver of a subsequent default or nonperformance of such term, covenant,
condition or provision.
9.05. Termination.
(a) The Developer and the Agency acknowledge and agree that as of the Effective
Date certain matters mutually agreed by the parties hereto are essential to the successful
development of the Project have not been satisfied or are subject to certain conditions, legal
requirements or approvals beyond the control of any of the parties hereto or which cannot be
definitely resolved under this Agreement. In recognition of these events or conditions, the
parties hereto mutually agree that, provided the appropriate or responsible party therefor
diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or
condition to occur or be satisfied, the failure of the events or conditions listed in subsection (b)
below to occur or be satisfied shall not constitute an event of default by any party under this
Article 9, but may be the basis for a termination of this Agreement as provided in this Section
9.05.
(b) In addition to any other rights of termination provided elsewhere in this
Agreement, this Agreement may be terminated as provided in subsection (c) after the occurrence
of any of the following events or conditions:
(I) All of the Site is taken by the exercise of the power of eminent domain by
a governmental authority (except the City or the Agency) or a person entitled to exercise such
power or benefiting therefrom, or such part of the Site is taken by the power of eminent domain
19
so as to render the Project commercially unfeasible or unusable for its intended uses as
contemplated by this Agreement;
(2) The appropriate governmental authority (but not including the City in
exercise of its governmental and regulatory authority and responsibility), upon petition by the
Developer, unduly delays or denies or fails to issu~ the Permits, issue the Building Permits, or
approve any other land use approval necessary to commence construction of the Project on the
Site;
(3) A moratorium on new construction is imposed by a governmental
authority within the City or Pinellas County so as to prevent construction of the Project to
commence;
(4) The City or other appropriate governmental authority has issued a
concurrency compliance certificate or a reservation of services capacity as described in Section
3.05 and such certificate or reservation has been revoked, repealed, superseded, or otherwise no
longer of any effect or the Developer is unable to rely upon such certificate or reservation, if
such a certificate or reservation is required for development of the Project on the Site, and the
Developer cannot obtain a new or replacement certificate or reservation for the Project.
(5) The City approves an amendment to the Plan which is inconsistent with
the Project being located on the Site.
(6) Utilities are not readily available at the boundaries of the Site at locations
satisfactory to the Developer by the Closing Date.
(c) Upon the occurrence of an event described in subsection (b), then the Developer
or the Agency may upon determining that such event cannot reasonably be expected to change in
the foreseeable future so as to allow development of the Project, may elect to terminate this
Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence
of such event or the determination of inability to cause a condition precedent to occur or be
satisfied, stating its election to terminate this Agreement as a result thereof, in which case this
Agreement shall then terminate, provided, however, only the Developer may elect to terminate
this Agreement upon the occurrence of an event described in paragraph (5) and (6).
(d) In the event of a termination pursuant to Section 9.05(b), neither the Developer
nor the Agency shall be obligated or liable one to the other in any way, financially or otherwise,
for any claim or matter arising from or as a result of this Agreement or any actions taken by the
Developer and the Agency, or any of them, hereunder or contemplated hereby, and each party
shall be responsible for its own costs.
(e) Notwithstanding anything to the contrary contained herein, in the event that any
party shall have, but shall not exercise, the right hereunder to terminate this Agreement because
of the non-satisfaction of any condition specified herein, and such condition is subsequently
20
satisfied, then the non-satisfaction of such condition shall no longer be the basis for termination
of this Agreement.
9.06. Termination Certificate.
(a) In the event of a termination of this Agreement for any reason prior to the
Expiration Date, each of the parties hereto do covenant and agree with each other to promptly
execute a certificate prepared by the party electing to terminate this Agreement, which certificate
shall expressly state that this Agreement has been terminated in accordance with its terms, is no
longer of any force and effect except for those provisions hereof which expressly survive
termination, that the rights, duties and obligations of the parties hereto have been terminated and
released (subject to those surviving provisions hereof) and that the Site is no longer subject to
any restrictions, limitations or encumbrances imposed by this Agreement.
(b) The certificate described in subsection (a) shall be prepared in a form suitable for
recording and promptly after execution by all of the parties hereto shall be recorded in the public
records of Pinellas County, Florida. The cost of recording the termination certificate shall be
paid by the terminating party.
9.07 Remedies. All remedies provided for herein and under Florida law shall be
cumulative and shall survive the technical termination of this Agreement pursuant to execution,
delivery and recordation of a Termination Certificate or otherwise hereunder.
ARTICLE 10.
UNA VOIDABLE DELAY.
10.01. Unavoidable Delav.
(a) Any delay in performance of or inability to perform any obligation under this
Agreement (other than an obligation to pay money) due to any event or condition described in
paragraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in
this Section 10.01.
(b) "Unavoidable Delay" means any of the following events or conditions or any
combination thereof: acts of God, acts of the public enemy, riot, insurrection, terrorist attack,
war, pestilence, archaeological excavations required by law, unavailability of materials after
timely ordering of same, epidemics, quarantine restrictions, freight embargoes, fire, lightning,
hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement
weather (as indicated by the records of the local weather bureau for a five-year period preceding
the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73
and 74, Florida Statutes, restoration in connection with any of the foregoing or any other cause
beyond the reasonable control of the party performing the obligation in question, including,
without limitation, such causes as may arise from the act of the other party to this Agreement, or
acts of any governmental authority (except that acts of the Agency shall not constitute an
Unavoidable Delay with respect to performance by the Agency).
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(c) 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 subsection (a) 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 thirty (30) days following the occurrence of the event or
condition causing the Unavoidable Delay or thirty (30) days following the Applicant becoming
aware (or with the exercise of reasonable diligence should have become aware) of such
occurrence.
(d) The Applicant shall be entitled to an extension of time for an Unavoidable Delay
only for the number of days of delay due solely to the occurrence of the event or condition
causing such Unavoidable Delay and only to the extent that any such occurrence actually delays
that party from proceeding with its rights, duties and obligations under this Agreement affected
by such occurrence.
ARTICLE 11.
MISCELLANEOUS.
11.01. AssilIDlllents.
(a) (1) Prior to the earlier of the Termination Date or the Expiration Date, the
Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest
and obligations in and to the Project, or any part thereof to any person with the prior written
consent of the Agency, provided that such party (hereinafter referred to as the "assignee"), to the
extent of the sale, conveyance, assignment or other disposition by the Developer to the assignee,
shall be bound by the terms of this Agreement the same as the Developer for such part of the
Project as is subject to such sale, conveyance, assignment or other disposition.
(2) If the assignee of Developer's right, title, interest and obligations in and to
the Project, or any part thereof, assumes all of Developer's obligations hereunder for the Project,
or that part subject to such sale, conveyance, assignment or other disposition, then the Developer
shall be released from all such obligations hereunder which have been so assumed by the
assignee, and the Agency agrees to execute an instrument evidencing such release, which shall
be in recordable form.
(b) An assignment of the Project, or any part thereof, by the Developer to any
corporation, limited partnership, general partnership, or joint venture, in which the Developer 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 for the term of this Agreement shall not be
deemed an assignment or transfer subject to any restriction on or approvals of assignments or
transfers imposed by this Section 11.01, provided, however, that notice of such assignment shall
be given by the Developer to the Agency no less than thirty (30) days prior to such assignment
being effective and the assignee shall be bound by the terms of this Agreement to the same
extent as would the Developer in the absence of such assignment. If the Developer shall at any
22
time withdraw or be replaced as a general partner or no longer have the controlling interest or
management rights as described in this subsection, then that event shall constitute an assignment
of the Developer's right, title, interest or obligations under this Agreement for purposes of this
Section 11.01 and the prior approval of the Agency shall be obtained before such an event shall
be effective.
(c) Ifthe Developer shall sell, convey, assign or otherwise dispose of any or all of its
right, title, interest and obligations in and to the Project for use as a limited services hotel to be
operated other than under a franchise agreement with Marriott International, Inc., then the
Agency shall have the right to terminate this Agreement unless the assignee or the franchisor of
the assignee shall operate the limited services hotel under a brand or trade name generally
regarded as reasonably comparable to a "Residence Inn by Marriott" under hospitality industry
standards.
11.02. Successors and Assigns. The terms herein contained shall bind and inure to the
benefit of the Agency, and its successors and assigns, and the Developer, and its successors and
assigns, except as may otherwise be specifically provided herein.
11.03. Notices.
(a) All notices, demands, requests for approvals or other communications given by
either party to another shall be in writing, and shall be sent by registered or certified mail,
postage prepaid, return receipt requested or by overnight courier service, or by hand delivery to
the office for each party indicated below and addressed as follows:
To the Developer:
Clearwater Hospitality Properties, L.L.c.
c/o The Clarkson Company
3100 University Boulevard South, Suite 200
Jacksonville, Florida 32216
Attention:
To the Agency:
Community Redevelopment Agency of
the City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention: Rod Irwin
with copies to:
Michael A. Altes, Esq.
4219 Lexington Avenue
Jacksonville, Florida 32210
with copies to:
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attention: City Attorney
(b) Notices given by courier service or by hand delivery shall be effective upon
delivery and notices given by mail shall be effective on the third (3rd) business day after mailing.
Refusal by any person to accept delivery of any notice delivered to the office at the address
indicated above (or as it may be changed) shall be deemed to have been an effective delivery as
provided in this Section 11.03. The addresses to which notices are to be sent may be changed
from time to time by written notice delivered to the other parties and such notices shall be
23
effective upon receipt. Until notice of change of address is received as to any particular party
hereto, all other parties may rely upon the last address given.
11.04. Severability. If any term, provision or condition contained this Agreement shall,
to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the
application of such term, provision or condition to persons or circumstances other than those in
respect of which it is invalid or unenforceable, shall not be affected thereby, and each term,
provision and condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
11.05. Aoolicable 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 Agency and the Developer, and the Agreement, including, without limitation,
the Exhibits, shall not be deemed to have been prepared by the Agency or the Developer, but by
all equally.
11.06. Venue: Submission to Jurisdiction.
(a) For purposes of any suit, action, or other proceeding arising out of or relating to
this Agreement, the parties hereto do acknowledge, consent, and agree that venue thereof is
Pinellas County, Florida.
(b) Each party to this Agreement hereby submits to the jurisdiction of the State of
Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States
District Court for the Middle District of Florida, for the purposes of any suit, action, or other
proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of
a motion as a defense or otherwise that such action is brought in an inconvenient forum or that
the venue of such action is improper or that the subject matter thereof may not be enforced in or
by such courts.
(c) If at any time during the term of this Agreement the Developer is not a resident of
the State of Florida or has no office, employee, agency or general partner thereof available for
service of process as a resident of the State of Florida, or if any permitted assignee thereof shall
be a foreign corporation, partnership or other entity or shall have no officer, employee, agent, or
general partner available for service of process in the State of Florida, the Developer hereby
designates the Secretary of State, State of Florida, its agent for the service of process in any court
action between it and the Agency arising out of or relating to this Agreement and such service
shall be made as provided by the laws of the State of Florida for service upon a non-resident;
provided, however, that at the time of service on the Florida Secretary of State, a copy of such
service shall be delivered to the Developer at the address for notices as provided in Section
11.03.
11.07. Agreement Not a Chapter 86-191. Laws of Florida. Development Agreement. The
Developer and the Agency acknowledge, agree and represent that this Agreement, including,
24
without limitation, any of the Exhibits, is not a development agreement as described in Sections
19-31, Chapter 86-191, Laws of Florida, codified as Sections 163.3220-163.3243, Florida
Statutes.
11.08. Estopoel Certificates. The Developer and the Agency shall at any time and from
time to time, upon not less than ten (10) days prior notice by another party hereto, execute,
acknowledge and deliver to the other parties a statement in recordable form certifying that this
Agreement has not been modified and is in full force and effect (or if there have been
modifications that the said Agreement as modified is in full force and effect and setting forth a
notation of such modifications), and that to the knowledge of such party, neither it nor any other
party is then in default hereof (or if another party is then in default hereof, stating the nature and
details of such default), it being intended that any such statement delivered pursuant to this
Section 11.08 may be relied upon by any prospective purchaser, mortgagee, successor, assignee
of any mortgage or assignee of the respective interest in the Project, if any, of any party made in
accordance with the provisions ofthis Agreement.
11.09. Comolete 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,
including the Proposal.
(b) Any provisions of this Agreement shall be read and applied in para materia with
aU other provisions hereof.
(c) This Agreement cannot be changed or revised except by written amendment
signed by all parties hereto.
11.10. 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.
11.11. Holidavs. It is hereby agreed and declared that whenever a notice or performance
under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal
holiday observed in the City, it shall be postponed to the next following business day.
11.12. 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.
25
11.13. No Brokers. The Agency and the Developer hereby represent, agree and
acknowledge that no real estate broker or other person is entitled to claim or to be paid a
commission as a result of the execution and delivery of this Agreement, including any of the
Exhibits, or any proposed improvement, use, disposition, lease, conveyance or acquisition of any
or all of the Site.
11.14. Not an Agent. During the term of this Agreement, the Developer hereunder shall
not be an agent ofthe City or the Agency, with respect to any and all services to be performed by
the Developer (and any of its agents, assigns, or successors) with respect to the Project, and the
Agency is not an agent of the Developer (and any of its agents, assigns, or successors).
11.15. Memorandum of Development Agreement. The Agency and the Developer agree
to execute, in recordable form, on the Effective Date, the short form "Memorandum of
Agreement for Development and Disposition of Property", the form of which is attached hereto
as Exhibit D, and agree, authorize and hereby direct such Memorandum to be recorded in the
public records of Pinellas County, Florida, as soon as possible after execution thereof. The
Agency shall pay the cost of such recording.
11.16. 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 Agency's power and authority under the Act.
11.17. No General Obligation. In no event shall any obligation of the Agency under this
Agreement be or constitute a general obligation or indebtedness of the City or the Agency, a
pledge of the ad valorem taxing power of the City or the Agency or a general obligation or
indebtedness of the City or the Agency within the meaning of the Constitution of the State of
Florida or any other applicable laws, but shall be payable solely from legally available revenues
and funds. Neither the Developer nor any other party under or beneficiary of this Agreement
shall ever have the right to compel the exercise of the ad valorem taxing power of the City, the
Agency or any other governmental entity or taxation in any form on any real or personal property
to pay the City's or the Agency's obligations or undertakings hereunder.
11.18. Technical Amendments: Survey Corrections. In the event that due to minor
inaccuracies contained herein or any Exhibit attached hereto or any other agreement
contemplated hereby, or due to changes resulting from technical matters arising during the term
of this Agreement, the parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change the substance of this
Agreement may be made and incorporated herein. The Chairman of the Agency is authorized to
approve such technical amendments on behalf of the Agency, respectively, and is authorized to
execute any required instruments, to make and incorporate such amendment to this Agreement or
any Exhibit attached hereto or any other agreement contemplated hereby.
11.19. Term: Expiration: Certificate.
26
(a) If not earlier terminated as provided in Section 9.05, the term of this Agreement
shall expire and this Agreement shall no longer be of any force and effect (except for those
matters which specifically survive such expiration) on the tenth (lOth) anniversary of the
Effective Date.
(b) Upon completion of the term of this Agreement, all parties hereto shall execute
the Agreement Expiration Certificate. The Agreement Expiration Certificate shall constitute
(and it shall be so provided in the certificate) a conclusive determination of satisfactory
completion of all obligations hereunder and the expiration ofthis Agreement.
(c) The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records of Pinellas County, Florida. Following execution by all of the
parties hereto, the Agreement Expiration Certificate shall promptly be recorded by the Developer
in the public records of Pinellas County, Florida, and the Developer shall pay the cost of such
recording.
11.20. Effective Date. Following execution of this Agreement (and such of the Exhibits
as are contemplated to be executed simultaneously with this Agreement) by the authorized
officers of the Agency and by authorized representatives of the Developer following approval
hereof by the Agency and the Developer, this Agreement (and any executed Exhibits) shall be in
full force and effect in accordance with its terms and upon the recording of the Memorandum of
Development Agreement as contemplated by Section 11.15 hereof.
IN WITNESS WHErF, thE~ have set their hands and their respective
seals affixed as of this ~ day of 2007.
C UNITY REDEVELOPMENT AGENCY OF THE
CITY OF CLEARWATER, FWRD?A ~.~.
By: ~ ~- ~ ~. . .-.
~n-.N~" I ~ b~, Cht1irp~rson
Approved as to form:
JJki
Pamela K. Akin, City Attorney
ATTEST:
By:
I
'-
CLEARWATER HOSPITALITY PROPERTIES, L.L.C.,
a Delaware limited liability company
By: Southeast Hospitality Properties, LLC, as Sole Member
By: Clark22~~nture I, LLC, as Administra':ive
B Memher
y:
Dav1d Clarkson, Vice President
27 The Clarkson Company, as Manager
, its
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument. was acknowledged before me this J ~ day of
\ ~ln~ ,2007, by ])t!lhdCJOrIiMYl as \(I~e.. Pn~'dM+ of Clearwater
Hospitality Properties, L.L.c., a Delaware limited liability company, on behalf of such limited
liability company. He or she is personally known to me or have produced a valid driver's license
as identification.
(SEAL)
28
LIST OF EXHIBITS
EXHIBIT A
Legal Description
EXHIBIT B
Site Plan
EXHIBIT C
Intentionally Omitted
EXHIBIT D
Memorandum of Agreement for Development and Disposition of
Property
EXHIBIT E
Agreement Expiration Certificate
EXHIBIT F
Agreement Termination Certificate
29
EXHIBIT A
LEGAL DESCRIPTION
Parcell:
All of Lots 11 and 12 and that portion of Lots 13 through 18 inclusive lying on the northerly side
of Court Street in Block C, COACHMAN HEIGHTS REPLA T, including the south one-half of
vacated Haven Street on the northerly side of said Lot 11, as recorded in Plat Book 20, page 26,
public records of Pin ell as County, Florida.
Parcel 2:
All of Lot 1 and that portion of Lots 2 and 3 lying north and east of Court Street in Block C,
COACHMAN HEIGHTS REPLA T, including the south one-half of vacated Haven Street lying
north of and adjacent to said Lot 1, as recorded in Plat Book 20, page 26, public records of
Pinellas County, Florida.
30
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KEN BURKE, CLERK OF COURT
PINELLAS COUNTY FLORIDA
INST# 2007215334 06/27/2007 at 10:04 AM
OFF REC BK: 15860 PG: 565-567
DocType:GOV RECORDING: $27.00
MEMORANDUM OF DEVELOPMENT AGREEMENT
[Court Street Residence Inn]
This Memorandum of Agreement for Development of Property ("Memorandum") is made this
~ day of :TOne.. , 2007, by and between the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic
of the State of Florida (the "Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL
33756, CLEARWATER HOSPITALITY PROPERTIES, LLC, a Delaware limited liability
company (the "Developer"), whose address is c/o The Clarkson Company, 3100 University Blvd.
South, Suite 200, Jacksonville, FL 32216.
This Memorandum pertains to an Agreement for Development of Property (Court
Street Residence Inn), by and between the Agency and the Developer, dated as of
,T\)f\'C:.. ~~ , 2007, (the "Development Agreement"), which provides for the
development and construction ofthe Residence Inn By Marriott Project, as same is defined in the
Development Agreement.
The Development Agreement is incorporated herein and made a part hereof by
reference as fully as though it were set forth herein in its entirety. It is the intention of the parties
to hereby ratify, approve and confirm the Development Agreement as a matter of public notice
and record. Nothing herein shall in any way affect or modify the Development Agreement, nor
shall the provisions of this Memorandum be used to interpret the Development Agreement. In
the event of conflict between the terms of this document and those contained in the Development
Agreement, the terms in the Development Agreement shall control.
A copy of the fully-executed Development Agreement is on file with the City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater,
Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of the aa.tJ~ day of ..:::rV() c:: , 2007.
[SIGNATURE PAGE FOLLOWS]
D-l
count~
By:
Its: Executive Director
, as
(SEAL)
ATTEST:
By: vtwtl ~ . as
Its: Secretary David Clarkson
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
By: ::t.....-~ ~
Its-cna1rman
Attest:
CLEARWATER HOSPITALITY
PROPERTIES, LLCBy: Southeast Hospitality
Properties, LLC, as Sole Member
By: Clarkson Platform V re I, LLC,
as Admini t i V ~i
B~ ,u
It
D-2
STATE OF FLORIDA
COUNTY OF PINELLAS
~~ foregoing instrument was acknowledged before me this I ~day of
5\1 (\ e...- ~~ by P1'7\.n \L \/. H-~ln..r-1t, Chairman of the Community Redevelopment
Agency of the City of Clearwater, a body corporate and politic of the State of Florida, on behalf
of the Agency. He is personally known to me or has produced a valid driver's license as
identification.
~~ SANDRA HARRIGER
QJr..7 I!. i*\ MY COMMISSION # DD 278716
. ~l EXPIRES: January 4, 2008
. ~ . Bonded Thru Notary PubIlc Underwriters
- ~.....
(SEAL)
~.-~~~~,
rintedffyped Name: .SO....~~
Notary Public-State of Florida
Commission Number: "Db ~(l g "1, ~
r:-' J.d
STATE OF FLORIDA
COUNTY OF PINELLAS
\ The foregoing inS~1 was acknowledged before me this ~ day of
'- jU1 L ,2007, by *' CltJrt<S6l.of CLEARWATER HOSPITALITY
PROPERTIES, LLC., a Delaware limited liability company, on behalf of the corporation. He is
personally known to me or has produced a valid driver's license as identifica 'on.
(SEAL)
1 Q am e: (J"t..,
otary Public-State of Florida
Commission Number: l?C 5l.b:r31Q.
D-3
EXHIBIT liE"
AGREEMENT EXPIRATION CERTIFICATE
[Court Street Residence Inn]
This Agreement Expiration Certificate ("Certificate") is made this _ day of
--' by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
CLEARWATER, FLORIDA, a public body corporate and politic of the State of Florida (the
"Agency"), whose address is 112 S. Osceola Avenue, Clearwater, FL 32521, and
CLEARWATER HOSPITALITY PROPERTIES, LLC, a Delaware limited liability company
(the "Developer"), whose address is c/o The Clarkson Company, 3100 University Blvd. South,
Suite 200, Jacksonville, FL 32216.
This Certificate pertains to an Agreement for Development of Property by and
between the Agency and the Developer, dated as of , 2007, (the
"Development Agreement"), which provides for the development and construction of the
Residence Inn by Marriott Project, as same is defined in the Development Agreement.
The Development Agreement has expired in accordance with its own terms as of
--' , and is no longer of any force or effect, and that the Project site is no
longer subject to any restriction, limitation, or encumbrance imposed by the Development
Agreement. This Certificate has been executed by the parties to the Development Agreement as
provided in Section thereof and constitutes a conclusive determination of satisfactory
completion of all obligations under such Agreement and that the Development Agreement has
expired, except for those matters which survive as noted above.
A copy of the fully-executed Development Agreement is on file with the City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater,
Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as of the _ day of
E-I
(SEAL)
ATTEST:
By: ,as
Its: Executive Director
(SEAL)
A TrEST:
By:
Its: Secretary
, as
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
By:
Its Chairman
, as
CLEARWATER
PROPERTIES, LLC
HOSPITALITY
By:
Its
, as
E-2
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of
, by , Chairman of the Community Redevelopment
Agency of the City of Clearwater, a public body corporate and politic of the State of Florida, on
behalf of the Agency. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printedffyped Name:
Notary Public-State of Florida
Commission Number:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of
, -' by of Clearwater Hospitality Properties, LLC., a Delaware
corporation, on behalf of the corporation. He is personally known to me or has produced a valid
driver's license as identification.
(SEAL)
Printedffyped Name:
Notary Public-State of Florida
Commission Number:
E-3
EXHIBIT "F"
AGREEMENT TERMINATION CERTIFICATE
[Court Street Residence Inn]
This Agreement Termination Certificate ("Certificate") is made this _ day of
. , _, by and between the COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA, a public body corporate and politic of the State
of Florida (the "Agency"), whose address is Il2 S. Osceola Avenue, Clearwater, FL 32521, and
CLEARWATER HOSPITALITY PROPERTIES, LLC, a Delaware limited liability company
(the "Developer"), whose address is c/o The Clarkson Company, 3100 University Blvd. South,
Suite 200, Jacksonville, FL 32216.
This Certificate pertains to an Agreement for Development of Property by and
between the Agency and the Developer, dated as of , 2007 (the
"Development Agreement"), which provides for the development and construction of the
Residence Inn by Marriott Project, as same is defined in the Development Agreement.
The Development Agreement has terminated in accordance with its own terms as
provided in Section thereof as of , , and is no longer of any force
or effect except for those provisions which expressly survive termination. This Certificate has
been executed by the parties to the Development Agreement as provided in Section
thereof and constitutes a conclusive determination that the Development Agreement has been
terminated, the rights, duties and obligations of the parties hereto have been terminated and
released (subject to those surviving provisions) and the Project is no longer subject to any
restrictions, limitations or encumbrances imposed by the Development Agreement.
A copy of the fully-executed Development Agreement is on file with the City
Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue, Clearwater,
Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and their
respective seals affixed as ofthe _ day of _
COMMUNITY REDEVELOPMENT AGENCY
OF mE CITY OF CLEARWATER, FLORIDA
F-1
(SEAL)
ATTEST:
By: , as
Its: Executive Director
(SEAL)
ATTEST:
By:
Its: Secretary
, as
By:
Its Chairman
, as
CLEARWATER HOSPITALITY
PROPERTIES, LLC
By:
Its
,as
F-2
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of
by , Chairman of the Community Redevelopment
Agency of the City of Clearwater, a public body corporate and politic of the State of Florida, on
behalf of the Agency. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printedffyped Name:
Notary Public-State of Florida
Commission Number:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing
,_, by
corporation, on behalf of the corporation.
driver's license as identification.
instrument was acknowledged before me this _ day of
of Clearwater Hospitality Properties, a Delaware
He is personally known to me or has produced a valid
(SEAL)
Printedffyped Name:
Notary Public-State of Florida
Commission Number:
F-3