18-05RESOLUTION NO. 18-05
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA APPROVING A TERMINATION OF A
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
CLEARWATER AND BAYWAY HOTEL HOLDINGS, LLC;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Clearwater (the "City") entered into a Development
Agreement with DECADE COMPANIES INCOME PROPERTIES (the "Property Owner"),
for the allocation of up to 72 units from the Hotel Density Reserve under Beach by Design
that was adopted by the City Council on October 6, 2009, via Resolution No. 09-03; and
WHEREAS, the City desires to terminate said Development Agreement due to the
Property Owner's satisfactory fulfillment of the terms of the Development Agreement'
now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA:
Section 1. The Development Agreement between the City of Clearwater and
DECADE COMPANIES INCOME PROPERTIES, a copy of which is attached as Exhibit
"A," is hereby terminated.
Section 2. Authorize the City Council and all appropriate officials to execute the
Termination of the Development Agreement, a copy of which is attached as Exhibit "B".
Section 3. This resolution shall take effect immediately upon adoption.
Section 4. The City Clerk is directed to submit a recorded copy of the Termination
of Development Agreement to the state land planning agency no later than fourteen (14)
days after the Development Agreement is recorded.
n
PASSED AND ADOPTED this 1 6 day of06-f�-c--t , 2018.
Approved as to form:
Michael P. Fuino
Assistant City Attorney
George N. Cretekos
Mayor
Attest:
Rosemarie Call
City Clerk
Resolution No. 18-05
TERMINATION AND RELEASE OF A HOTEL DENSITY RESERVE
DEVELOPMENT AGREEMENT
THIS TERMINATION AND RELEASE OF A DEVELOPMENT AGREEMENT
(the "Termination"), between DECADE COMPANIES INCOME PROPERTIES. (the
Property Owner) and the CITY OF CLEARWATER, FLORIDA, a municipal corporation
of the State of Florida acting through its City Council, the governing body thereof (the
"City") is dated the 1 44' day of Q bee , 201 $.
RECITALS:
WHEREAS, the City of Clearwater entered into a Development Agreement (the
"Agreement") with the "Property Owner," for the allocation of up to 72 units from the
Hotel Density Reserve, under Beach by Design, for the Property at 101 Coronado Drive,
Clearwater, FL 33767 (the "Property"); and
WHEREAS, the Agreement was adopted by the City Council on October 6, 2009,
via Resolution No. 09-03; and
WHEREAS, as a condition of approval for the allocation of up to 72 units from
the Hotel Density Reserve under Beach by Design, Section 6.1.3.1 required the Property
Owner to develop the Property in substantial conformance with the conceptual site plan
attached to the Agreement; and
WHEREAS, the City has determined that the Property Owner has satisfactorily
completed the development of the Property consistent with conceptual site plans that were
part of the Agreement; and
WHEREAS, the City has conducted such public hearings as are required by and in
accordance with Florida Statutes Section 163.3225, Code Sections 4-206 and 4-606, and
any other applicable law; and
WHEREAS, the Applicant and the City desire to terminate said Development
Agreement due to the Property Owner's successful completion of the project and full
compliance with the terms of the Development Agreement; and
WHEREAS, at a duly noticed and convened public meeting on
t c4c 6e.*- 1 g , 201 j, the City Council thereby passed Resolution 18-05
consenting to the termination and release of the Development Agreement; and
WHEREAS, termination of this Agreement is in the interests of the City in
furtherance of the City's goals of enhancing the viability of the resort community and in
furtherance of the objectives of Beach by Design; and
NOW, THEREFORE, in consideration of the recitals set forth above, which are
incorporated herein by this reference, Ten Dollars ($10.00) in hand paid, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
Exhibit B
acknowledged, the City terminates the A greement and hereby releases the Property
from all terms, conditions, agreements, grant of rights, and covenants contained in the
Agreement, including, without limitation, the allocation of up to 72 units from the Hotel
Density Reserve because the units have been used as contemplated by the Agreement
and therefore there are no units which can revert back to the reserve. The City hereby
affirms that: (a) no provision, term, covenant or condition in said Agreement remains
in effect as of the date hereof; and (b) the Property retains no right, title or interest
of any kind or nature in said Hotel Density Reserve units because the units have been
used as contemplated by the Agreement and therefore there are no units which can revert
back to the reserve.
THIS TERMINATION AND RELEASE has been executed as of the
above -written date by the City.
CITY OF CLEARWATER, FLORIDA
By:
William B. Horne II
City Manager
Attest:
1,4-L ( 0
Rosemarie Call, City Clerk
Countersigned:
e.Ortegcrektos
George N. Cretekos, Mayor
Approved as to Form:
fi/J
Michael P. Fuino,
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
e foregoing instrument was acknowledged before me this day of
, 201, by GEORGE N. CRETEKOS, as Mayor of the City of
C earwater, Florida, who is [ 1,1 personally known to me or has [ ] produced
as identi _ ation.
STATE OF FLORIDA
COUNTY OF PINELLAS
Mary Public7 , A u
'lit Name: �,9 i c� �f u
Commission Expires:
The foregoing instrument was acknowledged before me this ococ day of
0C-Ar00.0_r , 201}x, by WILLI M B. HORNE, II, as City Manager of the
City of Clearwater, Florida, who is [ ✓fpersonally known to me or who has [ ]
produced
e"jraPok, SANDRA HARRIGER
o� MY COMMISSION # F4, 020 5
07: EXPIRES: Jam�azY
oFa
as identification.
�.otary Public
Print Name: Sot.(ak.\� t/
My Commission Expires
11417-0
KEN BURKE, CLERK OF COURT
PINELLAS COUNTY FLORIDA
NSW/ 200927374910115/2009 at 11:52 AM
OFF REC BK: 16726 PG: 1242-1271
DocType:AGM RECORDING: $256.50
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("AGREEMENT") is dated the !ate
day of 0 , 2009, and entered into between DECADE COMPANIES
INCOME PROPERTIES ("Developer"), its successors and assigns, and the CITY OF
CLEARWATER, FLORIDA, a political subdivision of the State of Florida acting
through its City Council, the governing body thereof ("City").
RECITALS:
WHEREAS, one of the major elements of the City's revitalization effort is a
preliminary plan for the revitalization of Clearwater Beach entitled Beach by Design; and
WHEREAS, Sections 163.3220 -163.3243, Florida Statutes, which set forth the
Florida Local Government Development Agreement Act ("Act"), authorize the City to
enter into binding development agreements with persons having a legal or equitable
interest in real property located within the corporate limits of the City; and
WHEREAS, under Section 163.3223 of the Act, the City has adopted Section 4-
606 of the City of Clearwater Community Development Code ("Code"), establishing
procedures and requirements to consider and enter into development agreements; and
WHEREAS, Beach by Design proposed additional hotel units to equalize
development opportunities on the beach and ensure Clearwater Beach remains a quality,
family resort community by further providing for a limited pool of additional hotel units
("Hotel Density Reserve") to be made available for such mid-sized hotel projects; and
WHEREAS, the Developer controls approximately 0.722 acres of real property
("Property") in the corporate limits of the City, consisting of 0.722 acres of upland from
the face of the seawall more particularly described on Exhibit "A" attached hereto and
incorporated herein; and
WHEREAS, the Developer desires to develop the Property by demolishing
existing hotel rooms and other uses in order to add overnight accommodation units,
minimal meeting space for guest use, ground level pool, tiki-bar/pool on the roof, new
lobby and parking with parking spaces, generally conforming to the architectural
elevation dimensions shown in composite Exhibit "B"; and
WHEREAS, upon completion the planned resort will contain 108 units, which
includes Seventy -Two (72) units from the available Hotel Density Reserve:
WHEREAS, the City has conducted such hearings as are required by and in
accordance with Chapter 163.3220 Fla. Stat. (2008) and any other applicable law; and
E4-1114
WHEREAS, the City has determined that, as of the Effective Date of this
Agreement, the proposed project is consistent with the City's Comprehensive Plan and
Land Development Regulations; and
WHEREAS, the City has conducted public hearings as required by §§ 4-206 and
4-606 of the Community Development Code; and
WHEREAS, at a duly called public meeting on August 20, 2009, the City Council
approved this Agreement and authorized and directed its execution by the appropriate
officials of the City; and
WHEREAS, the Community Development Board approved the design and site
plan as FLD2009- 03013 on May 19 and July 21, 2009, conditioned upon the approval
and execution of this Agreement; and
WHEREAS, approval of this Agreement is in the interests of the City in
furtherance of the City's goals of enhancing the viability of the resort community and in
furtherance of the objectives of Beach by Design; and
WHEREAS, Developer has approved this Agreement and has duly authorized
certain individuals to execute this Agreement on Developer's behalf.
STATEMENT OF AGREEMENT
In consideration of and in reliance upon the premises, the mutual covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto intending to be legally bound and in
accordance with the Act, agree as follows:
SECTION 1. Recitals. The above recitals are true and correct and are a part of
this Agreement.
SECTION 2. Incorporation of the Act. This Agreement is entered into in
compliance with and under the authority of the Code and the Act, the terms of which as of
the date of this Agreement are incorporated herein by this reference and made a part of
this Agreement. Words used in this Agreement without definition that are defined in the
Act shall have the same meaning in this Agreement as in the Act.
SECTION 3. Property Subiect to this Aereemgnt. The Property described in
Exhibit "A" is subject to this Agreement ("Property").
3.1 The Property currently has a land use designation of Resort Facilities High
(RFH) and is zoned Tourist (T).
3.2. The Property is owned in fee simple by the Developer.
3.3 The Property is generally located at 101 Coronado Drive Clearwater, FL
33767 as more further described in Exhibit "A".
2
SECTION 4. Scone of Proiect.
4.1 The Project shall consist of no more than 108 overnight accommodation
units. Such units may be traditional hotel rooms or fractional ownership units, as defined
by the Community Development Code. The proposed density is 150 units per acre.
4.2 The Project shall include 112 parking spaces, as defined in the Community
Development Code. ".
4.3 The proposed height of the building is 89 feet to the roof deck.
4.4 The design of the Project, as represented in Exhibit "B", is consistent with
Beach by Design, except as otherwise shown on Exhibit "B.
4.5 No more than 25 % of overnight accommodation units shall have full
kitchens. Such kitchens shall be limited to those units identified on the plans in Exhibit
"B" as "suites" and shall not be located in any unit received from the Hotel Density
Reserve.
4.6 The project shall comply with the Metropolitan Planning Organization
(MPO) countywide approach to the application of concurrency management for
transportation facilities.
SECTION 5. Effective Date/Duration of this Agreement.
5.1 This Agreement shall not be effective until this Agreement is properly
recorded in the public records of Pinellas County, Florida, and thirty (30) days have
elapsed after having been received by the Department of Community Affairs pursuant to
Florida Statutes Section 163.3239 and Clearwater Community Development Code Section
4-606.G. 2.
5.2 Within fourteen (14) days after the City approves the execution of this
Agreement, the City shall record the Agreement with the Clerk of the Circuit Court for
Pinellas County. The Developer shall pay the cost of such recording. The City shall
submit to the Department of Community Affairs a copy of the recorded Agreement within
fourteen (14) days after the Agreement is recorded.
5.3 This Agreement shall continue in effect until terminated, as defined herein,
but for a period not to exceed ten (10) years.
SECTION 6. Obligations under this Agreement.
6.1 Obligations of the Developer:
6.1.1 The obligations under this Agreement shall be binding upon and the
benefits of this Agreement shall inure to the Developer, its successors in interests
or assigns.
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6.1.2 At the time of development of the Property, the Developer will
submit such applications and documentation as are required by law and shall
comply with the City's Code applicable at the time of building permit review.
6.1.3 The following restrictions shall apply to development of the
Property:
6.1.3.1 The Property and improvements located thereon shall be
developed in substantial conformance with the Site Plan attached as
Exhibit "B" and approved by the Community Development Board ("CDB")
as case number FLD2009-03013. Any minor revisions or changes to the
Site Plan shall be consistent with the approved Site Plan and shall be
approved by the Planning Director as a minor modification, pursuant to the
Code. Any modifications determined by the Planning Director as either
inconsistent with the approved Site Plan or constituting a substantial
deviation from the approved Site Plan and thus requiring further approval
by the CDB shall require an amendment to this Agreement in accordance
with the procedures of the Act and the Code, as necessary and applicable.
Any and all such approved and adopted amendments shall be recorded in
the public records of Pinellas County, Florida.
6.1.3.2 The Developer shall obtain building permits and shall
thereafter timely obtain required certificates of occupancy, in accordance
with Code Section 4-407. The Developer shall commence vertical
construction, defined as work on the project other than clearing, grubbing
or other preliminary site preparation work, in accordance with applicable
provisions of the Code and of the Florida Building Code. Nothing herein
shall restrict Developer from seeking an extension of these time frames
pursuant to applicable provisions of the Code and of the Florida Building
Code or from seeking an amendment to this agreement.
6.1.3.3 The Developer shall execute, prior to commencement, a
mandatory evacuation/closure covenant, substantially in the form of
Exhibit "C", that the accommodation use will closed as soon as practicable
after a hurricane watch that includes Clearwater Beach is posted by the
National Hurricane Center.
6.1.4 Covenant of Unified Use. Prior to the issuance of the first building
permit for the Project, the Developer hereby agrees to execute and record in the
Public Records of Pinellas County, Florida the covenant of unified use and
development for the Project Site providing that the Project Site shall be developed
and used as a single project, the form of which covenant is attached as Exhibit
"D"; provided however, that nothing shall preclude the Developer from selling the
Fractional Share Units or from selling all or a portion of the Developer's Property
in the event that Developer determines not to construct the Project. Additionally,
prior to the issuance of the first building permit for the Project, the Developer
hereby agrees to execute a Declaration of Unity of Title for the Project Site
4
providing that the Project Site shall be developed and used as a single project, the
form of which Declaration of Unity of Title is available from the City Planning
Department. It is understood and agreed that, in the event that the Developer
enters into the anticipated covenant of unified use and development, and the
Developer elects not to construct the Project and notifies the City of its election in
writing, and, alternatively, as of the date of expiration, termination or revocation
any rights of Developer to incorporate the Hotel Density Reserve Units into the
Project, the City shall execute and deliver to the Developer a termination of such
covenant of unified use and development suitable for recording in the Public
Records of Pinellas County, Florida_ Additionally, the City shall execute and
deliver to the Developer a Release of Unity of Title suitable for recording in the
Public Records of Pinellas County, Florida.
6.1.5 Allocation of Units from Hotel Density Reserve; Return of units to
the Reserve Pool. Covenant Regarding Use of Hotel Density Reserve Units.
Subject to the terms and conditions of this Agreement, the City hereby allocates
and grants to the Developer from the Hotel Density Reserve an additional 72 hotel
units to the Project Site in accordance with applicable law. In the event this
Agreement is terminated pursuant to Section 10 of this Agreement, or if any of the
units granted to the Developer from the Hotel Density Reserve are not constructed
in conjunction with the Project approved by FLD2009-03013 and in accordance
with Paragraph 6.1.3.2, or if any units or the Project fail to meet and maintain the
criteria for Hotel Density Reserve Units contained in the City of Clearwater
Ordinance No. 7925-08, said units shall be returned to the Hotel Density Reserve
and be unavailable to the Developer for use on the Project, pursuant to Beach by
Design. Prior to the issuance of the Certificate of Occupancy for the Project, the
Developer agrees to execute and record a Covenant in the Public Records of
Pinellas County, Florida restricting the Hotel Density Reserve Units in perpetuity
to the use approved by FLD2009-03013 and by this Agreement.
6.1.6 Transient Use. Occupancy in the overnight accommodation units
from the Hotel Density Reserve is limited to a term of one (1) month or thirty-one
(31) consecutive days, whichever is less. Nothing herein shall prevent a purchaser
of a fractional share unit from owning a period of time greater than thirty-one (31)
days, provided every occupancy is limited to a term of one (1) month or thirty-one
(31) consecutive days, whichever is less.
6.1.7 Execution and Recordation of Easement. The Developer shall
execute and record an easement, in a form acceptable to the City Attorney and
containing a legal description developed by the City Engineering Department,
granting perpetual use for sidewalk and underground utility installation and
maintenance purposes of that area of current encroachment upon the Developer's
property by the City sidewalk. The easement shall be recorded prior to the
Effective Date of this Agreement as set forth in Section 5 above.
6.2 Obligations of the City.
5
6.2.1 The City shall promptly process site and construction plan
applications for the Property that are consistent with the Comprehensive Plan and
the Concept Plan and that meet the requirements of the Code.
6.2.2 The final effectiveness of the re -designations referenced in Section
62.1 is subject to:
6.2.2.1 The provisions of Chapters 163 and 166, Florida Statutes, as
they may govern such amendments; and
6.2.2.2 The expiration of any appeal periods or, if an appeal is filed,
at the conclusion of such appeal.
6.2.3 Upon adoption of this Agreement, the Project shall receive 72 units
from the Hotel Density Reserve as defined in Beach by Design.
SECTION 7. Public Facilities to Service Development. The following public
facilities are presently available to the Property from the sources indicated below.
Development of the Property will be governed by the concurrency ordinance provisions
applicable at the time of development approval unless otherwise provided by law. With
respect to transportation and other public infrastructure and services subject to
concurrency requirements, all applicable concurrency provisions for the proposed
development have been met.
7.1 Potable water is available from the City. The Developer shall be
responsible for all necessary main extensions and applicable connection fees.
7.2 Sewer service is currently provided by the City. The Developer shall be
responsible for all necessary main extensions and applicable connection fees.
7.3 Fire protection from the City.
7.4 Drainage facilities for the Property will be provided by the Developer at
the Developer's sole expense.
7.5 Transportation concurrency requirements have been met.
7.6 All improvements associated with the public facilities identified in
Subsections 7.1 through 7.4 shall be completed prior to the issuance of any certificate of
Occupancy_
7.7 The Developer is responsible for the payment of any required impact fees.
SECTION 8. Required Local Government Permits. The required local
government development permits for development of the Property include, without
limitation, the following:
6
8.1 Site plan approval(s) and associated utility licenses, access, and right-of-
way utilization permits;
8.2 Construction plan approval(s);
8.3 Building permit(s); and
8.4 Certificate(s) of occupancy.
SECTION 9. Consistency. The City finds that development of the Property is
consistent with the terms of this Agreement and is consistent with the City
Comprehensive Plan and the Code.
SECTION 10. Termination.
If the Developer's obligations set forth in this Agreement are not followed in a timely
manner, as reasonably determined by the City Manager, after notice to the Developer and
an opportunity to be heard, existing permits shall be administratively suspended and
issuance of new permits suspended until the Developer has fulfilled its obligations.
Failure to timely fulfill its obligations may serve as a basis for termination of this
Agreement by the City, at the discretion of the City and after notice to the Developer and
an opportunity for the Developer to be heard.
SECTION 11. Other Terms and Conditions.
11.1 Except in the case of termination, until ten (10) years after the date of this
Agreement, the Property shall not be subject to down -zoning, unit density reduction, or
intensity reduction, unless the City has held a public hearing and determined:
11.1.1 That substantial changes have occurred in pertinent conditions
existing at the time of approval of this Agreement; or
11.1.2 This Agreement is based on substantially inaccurate information
provided by the Developer; or
11.1.3 That the change is essential to the public health, safety, or welfare.
SECTION 12. Compliance with Law. The failure of this Agreement to address
any particular permit, condition, term or restriction shall not relieve the Developer from
the necessity of complying with the law governing such permitting requirements,
conditions, terms or restrictions.
SECTION 13. Notices. Notices and communications required or desired to be
given under this Agreement shall be given to the parties by hand delivery, by nationally
recognized overnight courier service such as Federal Express, or by certified mail, return
receipt requested, addressed as follows (copies as provided below shall be required for
proper notice to be given):
If to the Developer: Decade Companies Income Properties
7
1355 Bishops Court, Ste 345
Brookfield, WI 53005
With Copy to: Keith Zayac & Associates
701 Enterprise Road East Ste 404
Safety Harbor, Florida 34695
If to City:
City of Clearwater, City Attorney
ATTN: Pamela Akin, Esq.
112 South Osceola Avenue
Clearwater, FL 33756
Properly addressed, postage prepaid, notices or communications shall be deemed
delivered and received on the day of hand delivery, the next business day after deposit
with an overnight courier service for next day delivery, or on the 3rd day following
deposit in the United States mail, certified mail, return receipt requested. The parties may
change the addresses set forth above (including the addition of a mortgagee to receive
copies of all notices), by notice in accordance with this Section.
SECTION 14. Assignments.
14.1 By the Developer:
14.1.1 Prior to the Commencement Date, the Developer may sell, convey,
assign or otherwise dispose of any or all of its right, title, interest and obligations
in and to the Project, or any part thereof, only with the prior written notice to the
City, provided that such party (hereinafter referred to as the "assignee"), to the
extent of the sale, conveyance, assignment or other disposition by the Developer to
the assignee, shall be bound by the terms of this Agreement the same as the
Developer for such part of the Project as is subject to such sale, conveyance,
assignment or other disposition.
14.1.2 If the assignee of the Developer's right, title, interest and
obligations in and to the Project, or any part thereof assumes all of the Developer's
obligations hereunder for the Project, or that part subject to such sale, conveyance,
assignment or other disposition, then the Developer shall be released from all such
obligations hereunder which have been so assumed by the assignee, and the City
agrees to execute an instrument evidencing such release, which shall be in
recordable form.
14.1.3 An assignment of the Project, or any part thereof, by the Developer
to any corporation, limited partnership, limited liability company, general
partnership, or joint venture, in which the Developer (or an entity under common
control with Developer) has either the controlling interest or through a joint
venture or other arrangement shares equal management rights and maintains such
controlling interest or equal management rights shall not be deemed an assignment
8
or transfer subject to any restriction on or approvals of assignments or transfers
imposed by this Agreement, provided, however, that notice of such assignment
shall be given by the Developer to the City not less than thirty (30) days prior to
such assignment being effective and the assignee shall be bound by the terms of
this Agreement to the same extent as would the Developer in the absence of such
assignment.
14.1.4 No assignee, purchaser, sublessee or acquirer of all or any part of
the Developer's rights and obligations with respect to any one Parcel shall in any
way be obligated or responsible for any of the Developer's obligations with respect
to any other Parcel by virtue of this Agreement unless and until such assignee,
purchaser, sublessee or acquire has expressly assumed the Developer's such other
obligations.
14.1.5 Notwithstanding any other provision of this paragraph, the sale of
individual Interval Ownership Units in the ordinary course of business shall not be
subject to the requirements of this paragraph.
14.2 Successors and Assigns. The terms herein contained shall bind and inure to
the benefit of the City, and its successors and assigns, and the Developer and, as
applicable to the parties comprising Developer, their personal representatives, trustees,
heirs, successors and assigns, except as may otherwise be specifically provided herein.
SECTION 15. Minor Non -Compliance. The Developer will not be deemed to
have failed to comply with the terms of this Agreement in the event such noncompliance,
in the judgment of the City Manager, reasonably exercised, is of a minor or
inconsequential nature.
SECTION 16. Covenant of Cooperation. The parties shall cooperate with and
deal with each other in good faith and assist each other in the performance of the
provisions of this Agreement and in achieving the completion of development of the
Property.
SECTION 17. Approvals. Whenever an approval or consent is required under or
contemplated by this Agreement such approval or consent shall not be unreasonably
withheld, delayed or conditioned. All such approvals and consents shall be requested and
granted in writing.
SECTION 18. Completion of Agreement. Upon the completion of performance
of this Agreement or its revocation or termination, a statement evidencing such
completion, revocation or termination shall be signed by the parties hereto and recorded in
the official records of the City.
SECTION 19. Entire Agreement. This Agreement (including any and all
Exhibits attached hereto all of which are a part of this Agreement to the same extent as if
such Exhibits were set forth in full in the body of this Agreement), constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof.
9
SECTION 20. Construction. The titles, captions and section numbers in this
Agreement are inserted for convenient reference only and do not define or limit the scope
or intent and should not be used in the interpretation of any section, subsection or
provision of this Agreement. Whenever the context requires or permits, the singular shall
include the plural, and plural shall include the singular and any reference in this
Agreement to the Developer includes the Developer's successors or assigns. This
Agreement was the production of negotiations between representatives for the City and
the Developer and the language of the Agreement should be given its plain and ordinary
meaning and should not be strictly construed against any party hereto based upon
draftsmanship. If any term or provision of this Agreement is susceptible to more than one
interpretation, one or more of which render it valid and enforceable, and one or more of
which would render it invalid or unenforceable, such term or provision shall be construed
in a manner that would render it valid and enforceable.
SECTION 21. Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstance is declared invalid or unenforceable,
the remainder of this Agreement, including any valid portion of the invalid term or
provision and the application of such invalid term or provision to circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected thereby and
shall with the remainder of this Agreement continue unmodified and in full force and
effect. Notwithstanding the foregoing, if such responsibilities of any party hereto are
thereby limited, to the extent that the purpose of this Agreement or the benefits sought to
be received hereunder are frustrated, such party shall have the right to terminate this
Agreement upon fifteen (15) days written notice to the other parties.
SECTION 22. Code Amendments. Subsequently adopted ordinances and codes
of the City which is of general application not governing the development of land shall be
applicable to the Property, and such modifications are specifically anticipated in this
Agreement.
SECTION 23. Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Florida without regard to the conflict
of laws principles of such state.
SECTION 24. Counterparts. This Agreement may be executed in counterparts,
all of which together shall continue one and the same instrument.
SECTION 25. Amendment. This Agreement may be amended by mutual
written consent of the City, the Developer, and the Association so long as the amendment
meets the requirements of the Act, applicable City ordinances, and Florida law.
10
IN WITNESS WHEREOF, the parties have hereto executed this Agreement the
date and year first above written.
Countersigned:
Frank Hibbard
Mayor -Commissioner
Date: 0 c,. (.r, X09'
Appr ved as to fo
01_1! 1":4
Leslie K. Dougall -Si
Assistant City Attorn
CITY:
CITY OF CLEARWATER, a
Florida municipal corporation
By:
William B. Home, II
City Manager
Attest:
C 1 o .a E. Goudeau
Ci Jerk
OWNER: DEC
By:
Title:
Date:
ANTES INCOME PROPERTIE
(Corporate Seal)
Pori- viVLvP
Signature
s�-.40,, .g/u-Y
Print name
11
EXHIBIT "A"
Legal Description of Project Site
ATTACHMENT A
HOLIDAY INN EXPRESS LEGAL DESCRIPTION
NORTH PARCEL LEGAL DESCRIPTION:
Begin at the Southwest comer of Water Lot 1, CITY PARK SUBDIVISION, according
to map or plat thereof as recorded in Plat Book 23, Page 37, of the Public Records of
Pinellas CITY, Florida; nm thence West along the East-West Center Line of Section 8,
Township 29 South, Range 15 East, 15 feet to the POINT OF BEGINNING; thence
South 5°32'30" West along East right-of-way line of Coronado Drive 16.26 feet; thence
South 84°2730" East, 100 feet; thence North 5°32'30" East, 78.06 feet; thence
Northwesterly along existing concrete seawall 113.38 feet, more or less; thence South
6°10'00" West, 82.63 feet; thence South 4°25'11" East, 25.74 feet to the Point of
Beginning.
AND:
Begin at the Southwest corner of Water Lot 1 of CITY PARK SUBDIVISION, as
recorded in Plat Book 23, Page 37, Public Records of Pinellas CITY, Florida; and run
thence West along the East and West Center Line of Section 8, Township 29 South,
Range 15 East, 15 feet to the Easterly line of Coronado Drive; thence South 5°32'30"
West, 16.26 feet, for the POINT OF BEGINNING; thence continue South 5°3T30" West,
100 feet to the Northerly line of First Avenue; thence South 84°27'30" East, 100 feet
along the Northerly line of First Avenue; thence North 5°3T30" East, 100 feet; thence
North 84°27'30" West, 100 feet to the Point of Beginning.
SOUTH PARCEL LEGAL DESCRIPTION:
The North 100 feet of the West 110 feet of Lot 1, Block B
COLUMBIA SUBDIVISION according to the map or plat thereof
as recorded in Plat Book 23, Page 60 Public Records of Pinellas
County, Florida.
EX IIBIT "B"
Site and Building Plans
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EXHIBIT "C"
COVENANT REGARDING HURRICANE EVACUATION
And DEVELOPMENT, USE AND OPERATION
DECLARATION OF COVENANTS AND RESTRICTIONS
PLEASE RETURN RECORDED DOCUMENT TO:
Leslie K. Dougall -Sides, Esquire
City of Clearwater
112 S. Osceola Ave.
P.O. Box 4748
Clearwater, FL 33756
THIS DECLARATION OF COVENANTS AND RESTRICTIONS
("Declaration") is made as of the day of , 2009, by Decade
Companies Income Properties ("Developer").
Developer is the owner of fee simple title to the real property described in
Schedule 1 attached hereto and made a part hereof (hereinafter, the ("Real Property"). The
City of Clearwater, Florida (the "City"), has amended its Comprehensive Plan to
designate Clearwater Beach as a Community Redevelopment District pursuant to the
Pinellas County Planning Council Rules in order to implement the provisions of "Beach
by Design," a plan for the revitalization of Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District
(the "Designation") provides for the allocation of Hotel Density Reserve Units as an
incentive for the development of mid-sized quality hotels. Pursuant to the Designation, the
allocation of Hotel Density Reserve Units is subject to compliance with a series of
performance standards, including a requirement that resorts containing a hotel developed
with Hotel Density Reserve Units shall be closed and all Guests evacuated from such
resorts as soon as practicable after the National Hurricane Center posts a hurricane watch
that includes Clearwater Beach. The purpose of such evacuation is to ensure that such a
Resort Hotel is evacuated in advance of the period of time when a hurricane evacuation
would be expected in advance of the approach of hurricane force winds.
The City has granted, by City Council Resolution 09-23, passed and approved on
August 20, 2009, Developer's application for Hotel Density Reserve Units pursuant to the
Designation, subject to Developer's compliance with the requirements of the Designation.
Developer desires for itself, and its successors and assigns, as owner, to establish certain
rights, duties, obligations and responsibilities with respect to the use and operation of the
Real Property in accordance with the terms and conditions of the allocation of the Hotel
Density Reserve Units to the City and the Designation, which rights, duties, obligations
and responsibilities shall be binding on any and all successors and assigns and will run
with the title to the Real Property.
14
THEREFORE, in consideration of the covenants and restrictions herein set forth
and to be observed and performed, and in further consideration of the allocation of Hotel
Density Reserve Units to Developer, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, Developer hereby declares, covenants and
agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for
the benefit of Developer and its successors and assigns and shall be enforceable by them
and also for the benefit of the residents of the City and shall be enforceable on behalf of
said residents by the City Council of the City.
2. Covenant of Development. Use and Operation. Developer hereby
covenants and agrees to the development, use and operation of the Real Property in
accordance with the provisions of this Declaration.
2.1 Use. The use of the resort on the Real Property is restricted as
follows:
2.1.1 A maximum of Seventy -Two units, which is the number of hotel
units allocated to Developer, shall be used solely for transient occupancy
of one month or thirty (30) consecutive days or less, must be licensed as a
public lodging establishment and classified as a hotel, and must be
operated by a single licensed operator of the hotel. No such hotel unit shall
be used as a primary or permanent residence.
2.1.2 All other 36 units shall be licensed as a public lodging establishment.
No unit shall be used as a primary or permanent residence.
2.1.3 As used herein, the terms "transient occupancy," "public lodging
establishment," "hotel," "time share," and "operator" shall have the
meaning given to such terms in Chapter 509, Part 1, Florida Statutes
(2004).
2.2 Closure of Improvements and Evacuation. The Hotel developed on the
Real Property shall be closed as soon as practicable upon the issuance of a hurricane
watch by the National Hurricane Center, which hurricane watch includes Clearwater
Beach, and all Hotel guests, visitors and employees other than emergency and security
personnel required to protect the resort, shall be evacuated from the Hotel as soon as
practicable following the issuance of said hurricane watch. In the event that the National
Hurricane Center shall modify the, terminology employed to warn of the approach of
hurricane force winds, the closure and evacuation provisions of this Declaration shall be
governed by the level of warning employed by the National Hurricane Center which
precedes the issuance of a forecast of probable landfall in order to ensure that the guests,
visitors and employees will be evacuated in advance of the issuance of a forecast of
probable landfall.
3 Effective Date. This Declaration shall become effective upon issuance of
15
all building permits required to build the project ("Project") and Developer's
commencement of construction of the Project, as evidence by a Notice of Commencement
for the Project. This Declaration shall expire and terminate automatically if and when the
allocation of Reserve Units to the Developer expires or is terminated.
4 Governing Law. This Declaration shall be construed in accordance with
and governed by the laws of the State of Florida.
5 Recording. This Declaration shall be recorded in the chain of title of the
Real Property with the Clerk of the Courts of Pinellas County, Florida.
6 Attorneys' Fees. Developer shall reimburse the City for any expenses,
including reasonable attorneys' fees, which are incurred by the City in the event that the
City determines that it is necessary and appropriate to seek judicial enforcement of this
Declaration and the City obtains relief, whether by agreement of the parties or through
order of a court of competent jurisdiction.
7 Severability. If any provision, or part thereof, of this Declaration or the
application of this Declaration to any person or circumstance will be or is declared to any
extent to e invalid or unenforceable, the remainder of this Declaration, or the application
of such provision or portion thereof to any person or circumstance, shall not be affected
thereby, and each and every other provision of this Declaration shall be valid and
enforceable to the fullest extent permitted by law.
IN WITNESS REOF, Developer has caused this Declaration to be executed
this E I, day of
OWNER: D
By:
Title:
Date:'
ANIES INCOME PROPERTIES
i i' 14k,h-L
bc
(Corporate Seal)
Witnesses:
Signature
P P— u'4\& P
Pri
ruzios/ 4
Print name
16
EXHIBIT "D"
COVENANT OF UNIFIED USE
PLEASE RETURN RECORDED DOCUMENT TO:
Leslie K. Dougall -Sides, Esquire
City of Clearwater
112 S. Osceola Ave.
P.O. Box 4748
Clearwater, FL 33756
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Agreement") is executed this day of
, 2009, by ("Developer").
WITNESSETH:
WHEREAS, Developer is the owner of the real property legally described on Schedule "A" attached
hereto and incorporated herein by reference (the "Real Property"); and
WHEREAS, Developer and the City of Clearwater, Florida (the "City") are parties to that certain
Development Agreement dated ' , 2009 (the "Development Agreement"), pursuant to which the
City has agreed that Developer may develop and construct upon the Real Property a hotel project as described
in the Development Agreement (the "Project"); and
WHEREAS, Developer intends to develop and operate the Real Property for a unified use, as more
particularly described in this Agreement.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Developer does hereby agree that,
effective as of the date on which Developer receives all permits required to construct the Project and Developer
commences construction thereof, as evidenced by a Notice of Commencement for the Project, the Real Property
shall be developed and operated as a hotel and fractional share/interval ownership project, as described in the
Development Agreement. The restrictions set forth in the preceding sentence shall expire automatically when
and if Developer's allocation of additional hotel units (as defined in the Development Agreement) expires or is
terminated. Nothing in this Agreement shall require Developer to develop the Project or restrict Developer's
ability to sell, assign, transfer or otherwise convey its right in and to the Real Property or any portion or portions
thereof to unrelated third -parties. Further, nothing in this Agreement shall preclude the purchase and sale of one
or more Fractional Share Units to be constructed as a part of the Project (the "Fractional Ownership") (or Hotel
Units (as defined in the Development Agreement) if sold in a condominium form of ownership), to separate,
unrelated third parties, provided that such Fractional Share Ownership or Hotel Units are operated and occupied
as part of the Project as a single unified project throughout the term of this Agreement. Developer agrees that
the City shall have the right to enforce the terms and conditions of this Agreement.
Notwithstanding the foregoing, all Hotel Units may be operated by a single hotel operator and all
Fractional Share Units may be operated by a different, single management firm/operator.
17
IN ITNESS WHEREOF, Developer has caused this Agreement to be executed this
2009.
OWNER: DECADE C
By:
Title:
Date:
Witnesses:
►IJU 1'
S INCOME PROPERTIES
(Corporate Seal)
Signature
P (1--r +uA-,. u P
Prin ,, ,, e
Signature
P�
Print name
18
day of