07-17
RESOLUTION NO. 07-17
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, APPROVING AN AMENDMENT TO THE
DEVELOPMENT AGREEMENT FOR PROPERTY IN THE
CITY OF CLEARWATER BETWEEN THE CITY OF
CLEARWATER AND THE SANDPEARL RESORT, LLC;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Clearwater entered into a development agreement with
Sand pearl Resort, LLC, which was approved by Resolution No. 05-04; and
WHEREAS, it is appropriate to amend said Development Agreement in order to
address issues relating to development of shared Boat Docking Facilities in the Boat
Basin; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA:
Section 1. The Amendment to Development Agreement for Property in the
City of Clearwater between the City of Clearwater and The Sandpearl Resort, LLC, a
copy of which is attached as Exhibit "A", is hereby approved.
Section 2. The City Clerk is directed to record the Amendment to
Development Agreement with the Clerk of the Circuit Court in Pinellas County no later
than fourteen (14) days after the Amendment is executed. The applicant for the
Amendment to Development Agreement shall bear the expense of recording the
agreement.
Section 3. The City Clerk is directed to submit a recorded copy of the
Amendment to Development Agreement to the State of Florida Department of
Community Affairs no later than fourteen (14) days after the Amendment to
Development Agreement is recorded.
Section 4. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 6th
day of September
,2007.
~~..A?/~~ ~
~nk V. Hibbard .
Mayor
Approved as to form:
Attest:
Leslie K. Dougall- s
Assistant City Attorney
Resolution No. 07-17
T
AMENDMENT TO DEVELOPMENT AGREEMENT FOR
PROPERTY IN THE CITY OF CLEARWATER
This is an amendment ("Amendment") to the Development Agreement for Property in the
City of Clearwater dated January 26, 2005 ("Agreement") between THE CITY OF
CLEARWATER, FLORIDA, a Florida municipal corporation (the "City") and The Sandpearl
Resort, LLC, a Florida limited liability company, formerly known as CBR Development I, LLC
and The Residences at Sandpearl Resort, LLC, a Florida limited liability company, formerly
known as CBR Development II, LLC (collectively the "Developer"). The Agreement is recorded
in Official Records Book 14089, at Page 320, of the Public Records of Pinellas County, Florida.
WITNESSETH:
WHEREAS, the City and Developer entered into the Agreement which include Section
5.03(10) provisions as to development of shared Boat Docking Facilities in the Boat Basin (as
described in the Agreement);
WHEREAS, subsequent to the execution of the Agreement it was determined that the
submerged land in the Boat Basin was owned in fee simple by the City;
WHEREAS, as a result of this change in circumstances, the parties have agreed to
certain revisions to the agreement between the City and the Developer attached to the
Agreement as Exhibit N-1 ("Boat Dock Agreement") and to the Agreement;
WHEREAS, the City has conducted such hearings as are required by and in accordance
with Chapter 163.3220 et seq. Fla Stat. and applicable law;
WHEREAS, the City has determined that as of the Effective Date of this Amendment the
proposed development is consistent with the City's Comprehensive Plan and Land
Development Regulations;
WHEREAS, at a duly called public meeting on J 2007, the City
Council approved this Amendment, and authorized and directed its execution by the appropriate
officials of the City; and
WHEREAS, the members of Developer have approved this Amendment and have
authorized the undersigned individuals to execute this Amendment on its behalf;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
1. Capitalized Terms. Capitalized terms used herein that are not defined shall have
the same meanings given to such terms in the Agreement.
2. Amendment to Aareement. The Agreement is amended as follows:
a. Section 5.03(10) is deleted in its entirety and replaced with the following
subsection:
Amendment to Development Agreement
Page 1
ADOPTED
EXHIBIT "A"
10. Boat Dockina Facilities. The City owns certain real property
including submerged lands within a boat basin immediately to the North of
the Belle Harbor Condominium project ("Boat Basin"). The City agrees to
grant to Developer the right to construct shared boat docking facilities
("Boat Docking Facilities") in the Boat Basin. Developer agrees to
pursue, at Developer's expense, all required Permits for construction of
boat slips (the "Boat Slips") in the Boat Basin as conceptually depicted on
the attached Revised Exhibit N. In the event Developer is able to obtain
the Permits for the Boat Slips, the City and Developer shall enter into an
agreement in the form attached as Revised Exhibit N-1 ("Boat Dock
Agreement") that will authorize the Developer to construct the new Boat
Slips, at Developer's sole expense, and provide for Developer and its
designated successors and assigns to have the right to utilize 27 of such
Boat Slips during the term of the Boat Dock Agreement. The remaining 15
Boat Slips are to be utilized by the City pursuant to the terms of the Boat
Dock Agreement. The Boat Dock Agreement will provide (i) for
Developer to pay all maintenance and repair costs for the Boat Slips, (ii)
for use of the Boat Slips to be limited to owners, tenants and guests
(including Beach Club members) of the Project and other owners and
tenants that own or lease residences within the geographical area
bordered on the West by the Gulf of Mexico, on the East by Clearwater
Bay, on the North by Rockaway Street and on the South by Papaya
Street; and (iii) for Developer to provide a shuttle service to the Boat Slips
from the Project. Any sublease or assignment by Developer of rights to
utilize the Developer Boat Slips shall be limited to such owners, tenants
and guests as provided above and all subleases or assignments shall
expressly prohibit parking on the City Property during use of the
Developer Boat Slips.
b. Exhibit N to the Agreement is deleted and replaced with the "Revised
Exhibit N" attached to this Amendment.
c. Exhibit N-1 to the Agreement is deleted and replace with the "Revised
Exhibit N-1 II attached to this Amendment.
3. Ratification. Except as modified herein, the terms and conditions of the
Agreement remain in full force and effect and are ratified by the parties.
4. Effective Date. As provided in 9163.3239, Florida Statutes (2006), this
Amendment will become effective after being recorded in the public records in the county and
30 days after having been received by the state land planning agency.
Amendment to Development Agreement
Page 2
ADOPTED
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of this _ day of , 2007.
THE CITY OF CLEARWATER
Attest
B.y:
City Clerk
By:
Mayor
Approved as to form and correctness
, Esquire
City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of _,2007, by
and , Mayor and City Clerk, respectively, for the
City of Clearwater, Florida, on behalf of the City, 0 who are personally known to me or 0 who
produced as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Amendment to Development Agreement
Page 3
ADOPTED
THE SANDPEARL RESORT, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership,
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of , 2007, by
J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida corporation,
the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the Managing
Member of The Sandpearl Resort, LLC, a Florida limited liability company, on behalf of the
company, 0 who are personally known to me or 0 who produced
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Amendment to Development Agreement
Page 4
ADOPTED
THE RESIDENCES AT SANDPEARL RESORT, LLC,
a Florida limited liability company
By: CBR Communities II, Ltd.,
a Florida limited partnership,
Managing Member
By: JMC Communities of Clearwater VI, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of _,2007, by
J. Michael Cheezem, as CEO of JMC Communities of ClearwaterVl, Inc., a Florida corporation,
the General Partner of CBR Communities II, Ltd., a Florida limited partnership, the Managing
Member of The Residences at Sandpearl Resort, LLC, a Florida limited liability company, on
behalf of the company, 0 who are personally known to me or 0 who produced
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Amendment to Development Agreement
Page 5
ADOPTED
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REVISED EXHIBIT N-1
AGREEMENT
This Agreement (the "Agreement") is made as of this _ day of
, 2007, by and between THE CITY OF CLEARWATER, FLORIDA, a Florida
municipal corporation (the "City") and THE SANDPEARL RESORT, LLC, a Florida limited
liability company (the "Developer").
WITNESSETH:
WHEREAS, the City of Clearwater and Developer have entered into a Development
Agreement for Property in the City of Clearwater dated January 26, 2005 and Amendment to
Development Agreement for Property in the City of Clearwater dated , 2007
(collectively the "Development Agreement");
WHEREAS, Section 5.03.10 of the Development Agreement provides for the City and
Developer to enter into an agreement providing for the construction of shared boat docking
facilities ("Boat Dock Facilities") within a boat basin ("Boat Basin') adjoining City owned upland
property ("City Property"), which Boat Basin and Boat Docking Facilities are conceptually
depicted on the attached Exhibit "A" ("Site Plan");
WHEREAS, the construction and use of the Boat Docking Facilities will further the
objectives of the City and facilitate the development by Developer of the mixed use resort
Project, as provided in the Development Agreement;
WHEREAS, at a duly called public meeting on , 2007, the City Council
approved this Agreement, and authorized and directed its execution by the appropriate officials
of the City; and
WHEREAS, the members of Developer have approved this Agreement and have
authorized the undersigned individual to execute this Agreement on its behalf.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.01. Definitions. The capitalized terms used in this Agreement that are not defined shall
have the meanings given to such terms in the Development Agreement.
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,
limited liability corporations and partnerships, including public bodies, as well as natural
persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and
Amendment to Development Agreement
Page 8
ADOPTED
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
(2005), as amended from time to time.
ARTICLE 2. PURPOSE AND DESCRIPTION OF BOAT DOCKING FACILITIES.
2.01. Finding of Public Purpose and Benefit. The proposed Boat Docking Facilities,
including the design, construction, completion and use of the Boat Docking Facilities, is
hereby found by the parties hereto: (1) to be consistent with and in furtherance of the
objectives of the Comprehensive Plan of the City of Clearwater, (2) to conform to the
provisions of Florida law, (3) to be in the best interests of the citizens of the City, (4) to
further the purposes and objectives of the City, (5) to further the public interest on
Clearwater Beach, and (6) to implement Beach by Design, including the creation of the
new quality hotel resort to be constructed as a part of the Project.
2.02. Purpose of Agreement. The purpose of this Agreement is to further the
implementation of Beach by Design by providing for the development of the Boat
Docking Facilities, all to enhance the quality of life, increase employment and improve
the aesthetic and useful enjoyment of Clearwater Beach and the City, all in accordance
with and in furtherance of the Comprehensive Plan of the City of Clearwater and as
authorized by and in accordance with the provisions of Florida law.
2.03. Scope of the Project.
1. The Boat Docking Facilities are contemplated to include a central pier, finger piers
and associated pilings as conceptually depicted on the attached Exhibit "A", which
will accommodate a maximum of 42 boat slips ("Boat Slips"). The Developer and its
designated successors and assigns shall have the right to utilize exclusively 27 of
the Boat Slips which are identified on the Site Plan ("Developer Slips") and the finger
piers containing the Developer Slips ("Developer Piers"). The City shall have the right
to control the use of the central pier, the 15 remaining Boat Slips ("City Slips") and
the finger piers containing the City Slips. The City shall have the right to utilize the
City Slips during the term of this Agreement for day docking or for any other
purpose. Boats shall not be permitted to occupy the City Slips and no access shall
be permitted to the City Slips during the period each night between midnight and
5:00 a.m., except in an emergency or as authorized by the City Harbor Master. The
foregoing restriction on overnight use of the City Slips shall not be applicable to a
fireboat or other boats operated by the City or other municipal or governmental
entities for public purposes ("Governmental Vessels").
2. The Developer shall have the right to install gates or other access control
improvements on the finger piers containing the Developer Slips and the right to
install boat lifts in the Developer Slips ("Slip Improvements"). Developer shall also
install gates on the finger piers containing the City Slips or on the central pier as
directed by the City. Developer shall have the right to obtain at Developer's expense
required access devices for 24/7 access to Developer Slips. The Boat Docking
Facilities including Slip Improvements are subject to the following additional
requirements and limitations:
Amendment to Development Agreement
Page 9
ADOPTED
(a) Only low profile pilings andlor tie poles shall be used in the Boat Docking
Facilities.
(b) No covered Boat Slips are allowed.
(c) No boat lifts are permitted on 40 foot or larger slips.
(d) Boat lifts shall not be installed in more than 13 of the 27 Developer Slips
or in more than 50% of the total Developer Slips if the number of
Developer Slips is reduced from 27.
(e) No fuel containers shall be transported across the central pier or finger
piers, nor any refueling of any vessels be done at this facility.
3. The Developer shall have the right, at its expense, to install water and electric lines
serving the Developer Slips and the City shall cooperate as to extension and
connection of such utilities. All utilities provided to the Developer Boat Slips shall be
separately metered and Developer shall pay all utility connection and usage charges.
Developer shall also provide lighting for the Boat Docking Facilities and pay all
electric expenses as to such lighting. Utilities shall not be provided by Developer to
the City Slips, provided, that at the request of the City, utilities (water and electric)
shall be provided to City Slips to be used by Governmental Vessel~ and City shall
reimburse Developer for additional expenses incurred by Developer as to such
utilities.
4. Developer shall provide and pay for all maintenance and repair costs for the Boat
Docking Facilities. Developer shall also provide, at its expense, for all required trash
removal from the Boat Docking Facilities. All normal operating expenses incurred by
Developer as to the Boat Docking Facilities including maintenance, repairs,
insurance premiums and cost of trash removal excluding utilities provided to
Developer Slips are collectively referred to as the Common Expenses. Developer
shall comply with the minimum maintenance standards as provided in the attached
Exhibit "C".
5. Developer agrees that use of the Developer Boat Slips shall be limited to owners,
tenants and guests (including Beach Club members) of the Project and other
owners and tenants that own or lease residences within the geographical area
bordered on the West by the Gulf of Mexico, on the East by Clearwater Bay, on the
North by Rockaway Street and on the South by Papaya Street. Any sublease or
assignment by Developer of rights to utilize Developer Boat Slips shall be limited to
such owners, tenants and guests and all subleases or assignments shall expressly
prohibit parking on the City Property during use of the Developer Boat Slips.
6. During the term of this Agreement, Developer shall provide a shuttle service to the
Boat Docking Facilities from the Project. Developer shall also provide at the Project
an employee assigned to respond to problems at the Boat Docking Facilities on a 24
hourI 7 day per week basis. Neither the City nor Developer shall have any obligation
to provide on-site security at the Boat Docking Facilities.
Amendment to Development Agreement
Page 10
ADOPTED
2.04. Cooperation of the Parties. The City and the Developer recognize that the successful
development of the Boat Docking Facilities and each component thereof is dependent
upon the continued cooperation of the City and the Developer, 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 Boat Docking Facilities are designed,
constructed, completed and used as provided herein.
ARTICLE 3. REGULATORY PROCESS.
3.01 Development Approvals and Permits.
1. Applications for Development Approval. The Developer shall prepare and submit
to the appropriate governmental authorities, including the City, applications for
approval of all required permits ("Permits"), and all plans and specifications
("Plans and Specifications") necessary for the Boat Docking Facilities, and shall
bear all costs of preparing such applications, applying for and obtaining such
approvals and permits, including payment of any and all applicable application,
inspection, and regulatory fees or charges. The City shall, to the extent possible,
expedite review of all applications. The failure of this Agreement to address a
particular permit, condition, or term of restriction shall not relieve the Developer
of the necessity of complying with the law governing said permitting
requirements, conditions, terms or restrictions.
2. City Cooperation and Assistance. The City shall cooperate with the Developer in
obtaining all necessary Permits required for the construction, completion and use
of the Boat Docking Facilities. If requested by the Developer and authorized by
law, the City will join file or in the filing of any application for any Permit, or,
alternatively, recommend to and urge any governmental authority that such
Permit be issued or approved.
3. City Authority Preserved. The City's duties, obligations, or responsibilities under
any section of this Agreement, speCifically including, but not limited to, this
Section 3.02, shall not affect the City's right, duty, obligation, authority and power
to act in its governmental or regulatory capacity in accordance with applicable
laws, ordinances, codes or other building regulations. Notwithstanding any other
provision of this Agreement, any required permitting, licensing or other regulatory
approvals by the City shall be subject to the established procedures and
substantive requirements of the City with respect to review and permitting of a
project of a similar or comparable nature, size and scope. In no event shall the
City, due to any provision of this Agreement, be obligated to take any action
concerning regulatory approvals except through its established procedures and
in accordance with applicable provisions of law.
Amendment to Development Agreement
Page 11
ADOPTED
ARTICLE 4. PLANS AND SPECIFICATIONS.
4.01. Plans and Specifications.
1. Responsibilitv for Preparation of Plans and Specifications. The Developer shall
be solely responsible for and shall pay the cost of preparing, submitting and
obtaining approval of the Plans and Specifications for the Boat Docking Facilities.
2. Use of Qualified Professionals. The Developer shall retain qualified
professionals to prepare the Plans and Specifications and shall cause such
professionals to prepare the Plans and Specifications.
ARTICLE 5. DEVELOPMENT OF BOAT DOCKING FACILITIES.
5.01. Ownership of City Property. The City is the owner the City Property which is more
particularly described in Exhibit "B" to this Agreement.
5.02. Boat Basin. The Boat Basin in which the Boat Docking Facilities are to be constructed
adjoins the City Property, is located on submerged lands owned by the City of Clearwater,
and is depicted on the Site Plan attached as Exhibit "A".
5.03. Obligations of the City.
1. Lease of Boat Basin. This Agreement shall constitute a lease to Developer of the
portion of the Boat Basin on which the Developer Slips and associated finger
piers will be located (the "Leased Premises") together with the non-exclusive
right to utilize the central pier and City Property for access to the Developer Slips.
Developer shall pay City as rental for the Leased Premises, annual rental in the
initial amount of $5,435.83 commencing on the date that the Boat Docking
Facilities are completed and authorized for occupancy by the City ("Lease
Commencement Date"). The annual rental shall be payable in arrears within ten
(10) days after the first anniversary of the Lease Commencement Date and
annually thereafter on or before each anniversary of the Lease Commencement
Date. The annual rental shall be adjusted on the first day of each lease year in
accordance with the annual increase in the consumer price index for urban wage
earners and c1erfcal wages for clerical workers for all items- U.S. City Average
(cpi) published by the Bureau of Labor Statistics, United States Department of
Labor (BLS), 1982-84-100. In the event the BLS shall cease to publish the CPI
the City shall designate a comparable index for calculating increases in annual
rental. The term of the lease shall be for the term of this Agreement as provided
in Section 18.18 below.
2. Permits. The City will cooperate and coordinate with the Developer with regard
to all Permit applications, including those to state agencies, and will facilitate or
expedite, to the greatest extent possible, the permit approval process.
4. City Share of Common Expenses. City shall pay to the Developer its
proportionate share of Common Expenses relating to the Boat Docking Facilities
based on a percentage determined by dividing the number of City Slips by the
total number of Boat Slips in the Boat Docking Facilities ("City's Share").
Amendment to Development Agreement
Page 12
ADOPTED
Developer shall invoice the City annually at the end of each lease year for City's
Share of Common Expenses, such invoice to include an itemized statement of
Common Expenses. Notwithstanding the foregoing, in no event shall City's
Share of Common Expenses for any lease year exceed the amount of annual
rental due from Developer to City. Developer shall bear the full amount of City's
Share of Common Expenses in excess of the annual rental amount due to City.
ARTICLE 6. PROJECT FINANCING.
6.01. Assignment of Rights Under Agreement To Project Lender. Developer may assign
to the Project Lender all its right, title and interest under this Agreement as security for
any indebtedness of Developer. The execution of any assignment, security agreement,
or other instrument, or the foreclosure of the instruction or any sale under the instrument,
either by judicial proceedings or by virtue of any power reserved in the mortgage or deed
of trust, or conveyance in lieu of foreclosure by Developer to the holder of such
indebtedness, or the existence of any right, power, or privilege reserved in any
instrument, shall not be held as a violation of any of the terms or conditions of this
Agreement, or as an assumption by the holder of such indebtedness personally of the
obligations of this Agreement. No such assignment, foreclosure, conveyance or exercise
of right shall relieve Developer from its liability under this Agreement.
6.02. Cooperation. The City and the Developer shall cooperate as to reasonable requests for
assurances any proposed Project Lender for the purpose of implementing the
mortgagee protection provisions contained in this Agreement and allowing the Project
Lender reasonable means to protect or preserve the liens of such Project Lender upon
the occurrence of a default under the terms of this Agreement.
ARTICLE 7. CONSTRUCTION OF PROJECT.
7.01. Site. The Developer shall be responsible for all site investigation and environmental
testing.
7.02. Construction of Boat Docking Facilities.
1.
a.
Commencement. Developer shall construct the Boat Docking Facilities
substantially in accordance with the Plans and Specifications therefore
approved by the City. The Boat Docking Facilities include certain
improvements to the City Property/Boat Basin consisting of approximately
100 - 200 feet of new seawall cap as determined to be required by Rube
Clarson, P.E.. Developer shall commence construction of the Boat
Docking Facilities ("Construction Commencement Date") on or before one
(1) year after receipt of all Permits, and expiration or resolution of all
appeal/challenges thereto ("Approval Effective Date").
b. For purposes of this Section 7.02, "commence construction" means
commencement of meaningful physical development of the Boat Docking
Facilities as authorized by the Permits therefor which is continued and
diligently prosecuted toward completion of the Boat Docking Facilities.
Amendment to Development Agreement
Page 13
ADOPTED
c. All obligations of Developer (including deadlines in the Construction
Commencement Date) with respect to commencement and continuation
of construction shall be subject to delays and extensions from time to time
for Unavoidable Delay (see Article 15). Developer shall not be deemed to
be in default of this Agreement to the extent construction of the Boat
Docking Facilities, or a part thereof, is not complete by reason of
Unavoidable Delay.
2. Pursuit of Construction. After the Construction Commencement Date, Developer
shall continue, pursue and prosecute the construction of the Boat Docking
Facilities with due diligence to completion, and shall not at any time actually or
effectively have abandoned (or its Contractor having actually or effectively
abandoned) the Boat Docking Facilities. For purposes of this subsection 7.02.2,
"abandoned" means to have ceased any construction work which effectively
advances the construction of the Boat Docking Facilities toward completion,
including removing all or substantially all of the construction work force from the
site of the Boat Docking Facilities for a period of not less than sixty (60) days.
3. Maintenance of Construction Site. During the construction of the Boat Docking
Facilities, Developer shall, at its own expense, keep the Boat Docking Facilities
and all adjoining City Property in reasonably good order and condition.
4. Construction Completion. Developer agrees to complete the Boat Docking
Facilities on or before one (1) year after the Construction Commencement Date.
7.03. City Not in Privity. The City shall not be deemed to be in privity of contract with any
Contractor or provider of services with respect to the construction of any part of the Boat
Docking Facilities not constituting all or any part of public improvements.
7.04. Construction Sequencing and Staging Area. The Developer shall construct the Boat
Docking Facilities in a manner and fashion which will minimize the inconvenience of the
construction on the property owners of Clearwater Beach and the residents of the City
and the use of the City Property. The City agrees to allow Developer to use portions of
the City Property as designated by the City for construction staging during construction
of the Boat Docking Facilities, without charge to the Developer, provided that such
staging area does not unreasonably affect the continued use of the City Property.
ARTICLE 8. INDEMNIFICATION.
8.01. Indemnification by the Developer.
1. The Developer agrees to indemnify, defend and hold harmless, the City, its
respective agents, officers, or employees from any and all liabilities, damages,
penalties, judgments, claims, demands, costs, losses, expenses or attorneys'
fees through appellate proceedings, for personal injury, bodily injury, death or
property damage arising out of, or by reason of any act or omission of the
Developer, its agents, employees or contractors arising out of, in connection with
or by reason of, the performance of any and all services covered by this
Agreement, or which are alleged to have arisen out of, in connection with or by
reason of, the performance of any and all services covered by this Agreement.
Amendment to Development Agreement
Page 14
ADOPTED
2. The Developer shall indemnify, defend and hold harmless the City, its officers
and employees from any and all liabilities, damages, costs, penalties, judgments,
claims, demands, losses, or expenses (including, but not limited to, actual
attorneys' fees and engineering fees) arising from or attributable to any breach by
the Developer, as the case may be, of any representations or warranties
contained in Section 9.01, or covenants contained in Section 9.02.
3. The Developer's indemnity obligations under subsections (1) and (2) of this
Section shall survive the earlier of the Termination Date or the Expiration Date,
but shall apply only to occurrences, acts, or omissions that arise on or before the
earlier of the Termination Date or the Expiration Date.
4. The Developer's indemnity hereunder is in addition to and not limited by any
insurance policy and is not and shall not be interpreted as an insuring agreement
between or among the parties to this Agreement, nor as a waiver of sovereign
immunity for any party entitled to assert the defense of sovereign immunity.
8.02. Indemnification by the City.
1. To the extent permitted by law, the City agrees to indemnify, defend and hold
harmless, the Developer, its respective officers, and employees from any and all
liabilities, damages, penalties, judgments, claims, demands, costs, losses,
expenses or attorneys' fees through appellate proceedings, for personal injury,
bodily injury, death or property damage arising out of, or by reason of, any act or
omission of the City, its respective agents or employees arising out of, in
connection with or by reason of, the performance of any and all services covered
by this Agreement, or which are alleged to have arisen out of, in connection with
or by reason of, the performance of any and all services covered by this
Agreement.
2. The City shall indemnify, defend and hold harmless the Developer, its officers
and employees from any and all liabilities, damages, costs, penalties, judgments,
claims, demands, losses, or expenses (including, but not limited to, actual
attorneys' fees and engineering fees) arising from or attributable to any breach by
the City, as the case may be, of any representations or warranties contained in
Section 10.01, or covenants contained in Section 10.02.
3. The City's indemnity obligations under this Section 8.02 shall survive the earlier
of the Termination Date or the Expiration Date, but shall only apply to
occurrences, acts or omissions that arise on or before the earlier of the
Termination Date or the Expiration Date. The City's indemnity hereunder is not
and shall not be interpreted as an insuring agreement between or among the
parties to this Agreement, but is in addition to and not limited by any insurance
policy provided that said obligation shall not be greater than that permitted and
shall be limited by the provisions of Section 768.28, Florida Statutes, or any
successor statute thereto.
8.03. Limitation. of Indemnification. Notwithstanding anything to the contrary contained
herein, with respect to the indemnification obligations of the Developer (as set forth in
Section 8.01) and the City (as set forth in Section 8.02), the following shall apply:
Amendment to Development Agreement
Page 15
ADOPTED
1. The indemnifying party shall not be responsible for damages that could have
been, but were not, mitigated by the indemnified party;
2. The indemnifying party shall not be responsible for that portion of any damages
caused by the negligent or willful acts or omissions of the indemnified party; and
3. There shall be no obligation to indemnify hereunder in the event that the
indemnified party (1) shall have effected a settlement of any claim without the
prior written consent of the indemnifying party, or (2) shall not have subrogated
the indemnifying party to the indemnified party's rights against any third party by
an assignment to the indemnifying party of any cause or action against such third
party.
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
DEVELOPER.
9.01. Representations and Warranties. The Developer represents and warrants to the City
that each of the following statements is currently true and accurate and agrees the City
may rely upon each of the following statements:
1. The Developer is a Florida Limited Liability Company duly organized and validly
existing under the laws of the State of Florida, has all requisite power and
authority to carry on its business as now conducted, to own or hold its properties
and to enter into and perform its obligations hereunder and under each document
or instrument contemplated by this Agreement to which it is or will be a party, is
qualified to do business in the State of Florida, and has consented to service of
process upon a designated agent for service of process in the State of Florida.
2. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each .document contemplated or
required by this Agreement to which the Developer is or will be a party have been
duly authorized by all necessary action on the part of, and have been or will be
duly executed and delivered by, the Developer, and neither the execution and
delivery thereof, nor compliance with the terms and provisions thereof or hereof:
(i) requires the approval and consent of any other party, except such as have
been duly obtained or as are specifically noted herein, (ii) contravenes any
existing law, judgment, governmental rule, regulation or order applicable to or
binding on the Developer, (iii) contravenes or results in any breach of, default
under or, other than as contemplated by this Agreement, results in the creation of
any lien or encumbrance upon any property of 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.
3. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or
required by this Agreement to which the Developer is or will be a party
constitutes, or when entered into will 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
Amendment to Development Agreement
Page 16
ADOPTED
creditors' rights generally and subject to usual equitable principles in the event
that equitable remedies are involved.
4. There are no pending or, to the knowledge of the Developer threatened actions
or proceedings before any court or administrative agency against the Developer,
or against any controlling shareholder, officer, employee or agent of the
Developer which question the validity of this Agreement or any document
contemplated hereunder, or which are likely in any case, or in the aggregate, to
materially adversely affect the consummation of the transactions contemplated
hereunder or the financial condition of the Developer.
5. 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.
6. All documentation, including that pertaining to the Boat Docking Facilities or the
Developer, delivered by the Developer to the City was, on the date of delivery
thereof, true and correct.
7. The principal place of business and principal executive offices of the Developer is
in St. Petersburg, Florida, and the Developer will keep records concerning the
Boat Docking Facilities (such as construction contracts, financing documents and
corporate documents) and all contracts, licenses and similar rights relating
thereto at an office in Pinellas County.
8. As of the Effective Date, the Developer will have the financial capability to carry
out its obligations and responsibilities in connection with the development of the
Boat Docking Facilities as contemplated by this Agreement.
9. The Developer has the experience, expertise, and capability to develop, cause
the construction, and complete the Boat Docking Facilities and, oversee and
manage the design, planning, construction, completion and use of the Boat
Docking Facilities.
9.02. Covenants. The Developer covenants with the City that until the earlier of the
Termination Date or the Expiration Date:
1. 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.
2. During each year that this Agreement and the obligations of the Developer under
this Agreement shall be in effect, the Developer shall cause to be executed and
to continue to be in effect those instruments, documents, certificates, permits,
licenses and approvals and shall cause to occur those events contemplated by
this Agreement that are applicable to, and that are the responsibility of, the
Developer.
3. The Developer shall assist and cooperate with the City to accomplish the
development of the Boat Docking Facilities by the Developer in accordance with
Amendment to Development Agreement
Page 17
ADOPTED
the Plans and Specifications, and this Agreement, and will not violate any laws,
ordinances, rules, regulations, orders, contracts or agreements that are or will be
applicable thereto.
4. Subsequent to the Effective Date, the Developer shall maintain its financial
capability to develop, construct and complete the Boat Docking Facilities and
shall promptly notify th~ City 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 Developer's financial capability to successfully and
completely develop, construct and complete the Boat Docking Facilities as
contemplated hereby.
5. 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.
.6. Subject to Section 18.01, 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 corporation, limited partnership, or other entity or permit one
or more other corporations or other entity to consolidate with or merge into it
without the prior approval of the City unless the Developer or an entity under
common control with Developer, retains a controlling interest in the consolidated
or merged entity, and will promptly notify the City of any changes to the existence
or form of the entity or any change in the control of the Developer.
7. The Developer shall not permit, commit, or suffer any waste of the City Property,
the Boat Basin or the Boat Docking Facilities.
8. Provided all conditions precedent thereto have been satisfied or waived as
provided herein, the Developer shall design, construct and complete the Boat
Docking Facilities such that it is substantially complete as provided in this
Agreement no later than the Completion Date.
ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY.
10.01. Representations and Warranties. The City 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:
1. The City is a validly existing body corporate and politic of the State of Florida,
has all requisite corporate power and authority to carry on its business as now
conducted and to perform its obligations hereunder and under each document or
instrument contemplated by this Agreement to which it is or will be a party.
2. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or
required by this Agreement to which the City is or will be a party have been duly
authorized by all necessary action on the part of, and have been or will be duly
executed and delivered by, the City, and neither the execution and delivery
thereof, nor compliance with the terms and provisions thereof or hereof (i)
requires the approval and consent of any other party, except such as have been
Amendment to Development Agreement
Page 18
ADOPTED
duly obtained or as are specifically noted herein, (ii) contravenes any existing
law, judgment, governmental rule, regulation or order applicable to or binding on
the City, (iii) contravenes or results in any breach of, or default under or, other
than as contemplated by this Agreement, results in the creation of any lien or
encumbrance upon any property of the City under any indenture, mortgage, deed
of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on
the date of this Agreement, any other agreement or instrument to which the City
is a party, specifically including any covenants of any bonds, notes, or other
forms of indebtedness of the City outstanding on the Effective Date.
3. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or
required by this Agreement to which the City is or will be a party constitute, or
when entered into will constitute, legal, valid and binding obligations of the City
enforceable against the City in accordance with the terms thereof, except as
such enforceability may 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.
10.02. Covenants. The City covenants with the Developer that until the earlier of the
Termination Date or the Expiration Date:
1. The City shall timely perform, or cause to be performed, all of the obligations
contained herein which are the responsibility of the City to perform.
2. During each year that this Agreement and the obligations of the City under this
Agreement shall be in effect, the City shall cause to be executed and to continue
to be in effect those instruments, documents, certificates, permits, licenses and
approvals, and shall cause to occur those events contemplated by this
Agreement that are applicable to and are the responsibility of the City.
3. The City shall assist and cooperate with the Developer to accomplish the
development of the Boat Docking Facilities in accordance with this Agreement
and the Plans and Specifications, will carry out its duties and responsibilities
contemplated by this Agreement, and will not violate any laws, ordinances, rules,
regulations, orders, contracts, or agreements that are or will be applicable
thereto, and, to the extent permitted by law, the City will not enact or adopt or
urge or encourage the adoption of any ordinances, resolutions, rules regulations
or orders or approve or enter into any contracts or agreements, including issuing
any bonds, notes, or other forms of indebtedness, that will result in any provision
of this Agreement to be in violation thereof.
4. The City shall not permit, commit, or suffer any waste or impairment to the Boat
Docking Facilities, nor shall the City alter the City Property, or any part thereof,
so as to prevent or adversely affect the development and use of the Boat
Docking Facilities.
ARTICLE 11. CONDITIONS PRECEDENT.
Amendment to Development Agreement
Page 19
ADOPTED
11.01. Developer Obligations. Unless this Agreement has been terminated pursuant to Article
12 hereof, the obligation of the Developer to construct the Boat Docking Facilities is
subject to the fulfillment to the satisfaction of, or waiver in writing by, the Developer of
each of the following conditions precedent:
1. All conditions precedent under Article 11 of the Development Agreement have
been satisfied or waived by Developer.
2. The Plans and Specifications required to commence construction of the Boat
Docking Facilities shall have been approved by the City in accordance with
applicable ordinances, land use regulations, building codes and other regulations
of the City.
3. All Permits necessary for construction of the Boat Docking Facilities to
commence shall have been issued and have become final and non-appealable.
11.02. Responsibilities of the Parties for Conditions Precedent. The parties hereto shall
not, individually or collectively, knowingly, intentionally or negligently prevent any
condition precedent from occurring; provided, however, nothing in this Section is
intended or shall be deemed to deny any party the right to reasonably exercise its
discretion to the extent permitted by law or this Agreement.
ARTICLE 12. DEFAULT; TERMINATION.
12.01. Project Default by the Developer.
1. There shall be an "event of default" by the Developer under this Agreement upon
the occurrence of anyone or more of the following:
a. The Developer shall fail to perform or comply with any material provision
of this Agreement applicable to it within the time prescribed therefor, after
receipt of a notice from the City pursuant to Subsection 12.01.2.a.; or
b. 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 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
c. 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
Amendment to Development Agreement
Page 20
ADOPTED
2.
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; or
a.
If an event of default by the Developer described in subsection 1 above
shall occur, the City 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 City 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 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 (provided, however, if the Developer is proceeding
diligently and in good faith, the curative period shall be extended for a
period of not exceeding six (6) months without any approval or consent of
the City being required, but such approval will be required if the curative
period is to be extended beyond six (6) months) then, in addition to any
remedy available under Section 12.05, the City may terminate this
Agreement or pursue any and all legal or equitable remedies to which the
City 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 City may
proceed to enforce other available remedies without providing any
additional notice to the Developer.
b. Any attempt by the City to pursue any of the above referenced remedies
will not be deemed an exclusive election of remedy or waiver of the City's
right to pursue any other remedy to which either may be entitled.
c. 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 City's ability to perform by such
deadline or the expiration of such period.
3. Subject to the rights of the Project Lender, if the City elects to cure a default
under Subsection 12.01.1. by the Developer, construction contracts, contract
documents, building permits, development permits, management agreements,
and financial commitments (all only to the extent assignable) with respect to the
Project shall, if such default has not been previously cured, on the day following
receipt by the Developer of notice from the City of its election to cure, be deemed
then assigned to the City making said election, without necessity of any other
action being taken or not taken by any party hereto. The Developer shall transfer
and deliver to the City upon making said election, all assignable Plans and
Specifications, working drawings, construction contracts, contract documents and
all Permits, and, at the direction of the City, the Developer shall vacate the
Leased Premises.
Amendment to Development Agreement
Page 21
ADOPTED
12.02. Default by the City.
1. Provided the Developer is not then in default under Section 12.01, there shall be
an "event of default" by the City under this Agreement in the event the City shall
fail to perform or comply with any material provision of this Agreement applicable
to it; provided, however, that suspension of or delay in performance by the City
during any period in which the Developer is in default of this Agreement as
provided in Section 12.01 hereof will not constitute an event of default by the City
under this Subsection 12.02.
2.
If an event of default by the City described in Subsection 12.02.1. shall
occur, the Developer shall provide written notice thereof to the City, and,
after expiration of the curative period described in paragraph (b) below,
may terminate this Agreement, institute an action to compel specific
performance of the terms hereof by the City or pursue any and all legal or
equitable remedies to which the Developer is entitled; provided, however,
if the event of default by the City occurs, any monetary recovery by the
Developer in any such action 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 this Agreement and the
transactions contemplated hereby, unless any such default by the City
was willful and committed in bad faith with reckless disregard for the
rights of the Developer.
a.
b. The Developer may not terminate this Agreement or institute an action
described in paragraph (2a) above if the City cures such event of default
within thirty (30) days after receipt by the City of written notice from the
Developer specifying in reasonable detail the event of default by the City,
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 City is proceeding diligently and in good faith, the curative
period shall be extended for a period of not exceeding six (6) months
without any approval or consent of the Developer being required, but
such approval will be required if the curative period is to be extended
beyond six (6) months after the notice of default has been given by the
Developer to the City if the City has commenced to cure such default
within such thirty (30) day period and is diligently prosecuting such
curative action to completion. The City 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 City 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 City.
c. Any attempt by the Developer to pursue any of the remedies referred to in
paragraphs a. and b. above will not be deemed an exclusive election of
Amendment to Development Agreement
Page 22
ADOPTED
remedy or waiver of the Developer's right to pursue any other remedy to
which it might be entitled.
d. 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 City's ability to perform by such
deadline or the expiration of such period.
12.03. Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to
the contrary, the specified rights and remedies to which either the City 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 City 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 City 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 City
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 City.
12.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of the
City 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 City 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.
Amendment to Development Agreement
Page 23
ADOPTED
12.05. Termination Prior to Commencement of Project.
1. The Developer and the City acknowledge and agree that as of the Effective Date
certain matters mutually agreed by the parties hereto to be essential to the
successful development of the Boat Docking Facilities 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, including, but not limited to, failure of a governmental authority to
grant an approval required for development of the Boat Docking Facilities. 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 2.
below to occur or be satisfied shall not constitute an event of default by any party
under this Article 12, but may, upon the election of any party hereto, be the basis
for a termination of this Agreement in accordance with this Section.
2. In addition to any other rights of termination provided elsewhere in this
Agreement, prior to commencement of the Boat Docking Facilities, this
Agreement may be terminated as provided in subsection 3. of this section by the
City or the Developer after the occurrence of any of the following events or
conditions (except for subsection b. , in which event only the Developer may
terminate this Agreement pursuant to this subsection 2.):
a. The appropriate governmental authority (including the City in exercise of
its governmental and regulatory authority and responsibility), upon
petition by the Developer denies or fails to: issue the Permits, or issue
any other approval necessary to commence construction of the Boat
Docking Facilities, provided the Developer has proceeded diligently,
expeditiously and in good faith to obtain such Permits or other necessary
actions;
b. A previously unknown site condition is subsequently. discovered and that
condition prevents successful development of the Boat Docking Facilities.
3. Upon the occurrence of an event described in subsection 2. or in the event that
the Developer or the City, after diligently and in good faith to the fullest extent its
capabilities, is unable to cause a condition precedent to its respective obligations
to occur or be satisfied, then the Developer or the City 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.
4. In the event of a termination pursuant to this Section 12.05, neither the
Developer nor the City 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 City, or any of them,
hereunder or contemplated hereby, and each party shall be responsible for its
Amendment to Development Agreement
Page 24
ADOPTED
own costs, however, the provisions of Sections 9.01 and 10.01 shall apply and
shall survive termination of this Agreement, the provisions of this Subsection
12.05.4 to the contrary notwithstanding.
12.06. Termination Certificate.
1. 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 Boat Basin is
no longer subject to any restrictions, limitations or encumbrances imposed by this
Agreement.
2. The certificate described in Subsection 1. 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.
ARTICLE 13. RIGHT TO CONTEST.
13.01. Right to Contest. Subject to the conditions set forth in Section 13.02 below, the City or
the Developer each may, at its sole discretion and expense, after prior written notice to
the other parties hereto, contest by appropriate action or proceeding conducted in good
faith and with due diligence, the amount or validity or application, in whole or in part, of
any lien, any payment of any taxes, assessments, impact fees or other public charges of
a similar nature that may from time to time be levied upon or assessed by any
appropriate governmental authority against the City, the Developer, the Boat Docking
Facilities (or any part thereof), the Boat Basin or personal property thereon, and the
revenues generated from the use or operation of any or all of the above, any other
payment specifically identified in this Agreement, or compliance with any law, rule,
regulation, or other such legal requirement.
13.02. Conditions. The right to contest any charge, payment or requirement pursuant to
Section 13.01 is subject to the following:
1. Such proceeding shall suspend the execution or enforcement of such charge,
payment or requirement;
2. Such proceeding will not create any risk of impairment of the construction,
completion, operation or use of the Boat Docking Facilities or any part thereof, in
any material respect, and no portion of the Boat Docking Facilities would be
subject to any risk of being involuntarily sold, forfeited or lost or the construction,
equipping, or completion of the Boat Docking Facilities or any part thereof be
delayed or prohibited;
3. Such proceeding will not subject any other party to criminal liability or risk of
material civil liability for failure to comply therewith, or involve risk of any material
claim against such party; and
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ADOPTED
4. The party seeking the benefit of this Article shall have furnished to the other
parties such security, if any, as may be required in such proceeding or as may be
reasonably requested by the others, to protect the Boat Docking Facilities and
any part thereof, and any interest of such parties hereunder.
ARTICLE 14. ARBITRATION
14.01. Agreement to Arbitrate. Only as specifically provided in this Agreement and only if any
judicial or administrative action or proceeding has not been commenced with regard to
the same matter and, if so, the party hereto commencing such action has not dismissed
it, any disagreement or dispute between the parties may be arbitrated in the manner set
forth in this Article 14. All parties hereby agree such arbitration, once commenced, shall
be the exclusive procedure for resolving such disagreement or dispute and agree to be
bound by the result of any such arbitration proceeding unless all parties mutually agree
to terminate such proceeding prior to decision. If any arbitration proceeding under this
part adversely affects the performance of any party hereunder, then any time periods
provided herein for such performance by that party shall be tolled during the pendency of
the arbitration proceeding affecting such performance.
14.02. Appointment of Arbitrators.
1.
2.
a.
Unless accelerated arbitration as provided in Section 14.08 hereof is
invoked, any party invoking arbitration herewith shall, within five (5) days
after giving notice of impasse in the dispute resolution process or upon
following the expiration of the time period for such dispute resolution
occurrence of the event permitting arbitration to be invoked, give written
notice to that effect to the other parties, and shall in such notice appoint a
disinterested person who is on the list of qualified arbitrators maintained
by the American Arbitration Association or a disinterested person not on
such list to whom an objection is not made by any other party hereto
within five (5) days of receipt of the notice of such appointment as the
arbitrator or, if more than one (1) arbitrator is to be appointed, as one of
the arbitrators.
b. Within ten (10) days after receipt of the notice described in paragraph (1),
the other parties shall by written notice to the original party acknowledge
that arbitration has been invoked as permitted by this Agreement, and
shall either accept and approve the appointment of such individual set
forth in the original notice as a sole arbitrator or shall appoint one (1)
disinterested person per party of recognized competence in such field as
an arbitrator.
a.
If two (2) arbitrators are appointed pursuant to subsection a. above, the
arbitrators thus appointed shall appoint a third disinterested person who is
on the list of qualified arbitrators maintained by the American Arbitration
Association, and such three (3) arbitrators shall as promptly as possible
determine such matter.
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ADOPTED
b. If the second arbitrator shall not have been appointed as provided in
subsection a., the first arbitrator shall, after ten (10) days notice to the
parties, proceed to determine such matter.
c. If the two (2) arbitrators appointed by the parties pursuant to subsection
a. shall be unable to agree within fifteen (15) days after the appointment
of the second arbitrator upon the appointment of a third arbitrator, they
shall give written notice of such failure to agree to the parties, and, if the
parties then fail to agree upon the selection of such third arbitrator within
fifteen (15) days thereafter, then within ten (10) days thereafter each of
the parties upon written notice to the other parties hereto may request the
appointment of a third arbitrator by the office in or for the State of Florida
(or if more than one office, the office located closest to the City) of the
American Arbitration Association (or any successor organization thereto),
or, in its absence, refusal, failure or inability to act, request such
appointment of such arbitrator by the United States District Court for the
Middle District of Florida (which request shall be filed in the division of
that court responsible for the geographic area including the City), or as
otherwise provided in Chapter 682, Florida Statutes, known and referred
to as the Florida Arbitration Act, as amended.
14.03. General Procedures. In any arbitration proceeding under this part, those parties
appointing arbitrators shall each be fully entitled to present evidence and argument to
the sole arbitrator or panel of arbitrators. The arbitrator or panel of arbitrators shall only
interpret and apply the terms of this Agreement and may not change any such terms, or
deprive any party to this Agreement of any right or remedy expressed or implied in this
Agreement, or award any damages or other compensation to any party hereto. The
arbitration proceedings shall follow the rules and procedures of the American Arbitration
Association (or any successor organization thereto) unless specifically modified by this
Agreement, or as then agreed to by the parties hereto.
14.04. Majority Rule. In any arbitration proceeding under this part, the determination of the
majority of the panel of arbitrators, or of the sole arbitrator if only one (1) arbitrator is
used, shall be conclusive upon the parties and judgment upon the same may be entered
in any court having jurisdiction thereof. The arbitrator or panel of arbitrators shall give
written notice to the parties stating his or their determination within thirty (30) days after
the conclusion of the hearing or final submission of all evidence or argument.
14.05. Replacement of Arbitrator. In the event of the failure, refusal or inability of any
arbitrator to serve as such, promptly upon such determination being made by the
affected arbitrator, the affected arbitrator shall give notice to the other two (2) arbitrators
(if applicable) and to the parties hereto, and then a new arbitrator shall be promptly
appointed as a replacement, which appointment shall be made by the party or the
arbitrators who appointed the affected arbitrator in the same manner as provided for in
the original appointment orthe affected arbitrator in Section 14.02 hereof.
14.06. Decision of Arbitrators.
1. If any decision reached by arbitration as provided in this part requires
performance by the Developer, the Developer covenants and agrees to comply
with any decision of the arbitrator(s) promptly after the date of receipt by the
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ADOPTED
Developer of such decision, and to continue such performance to completion with
due diligence and in good faith.
2. If any such decision requires performance by the City, the City covenants and
agrees to comply promptly with any decision reached by arbitrators) promptly
after the date of receipt by the City of such decision, and to continue such
performance to completion with due diligence and in good faith.
3. Nothing in this part, nor in any arbitration decision rendered under this part, shall
be construed to require any payment by the City to the Developer not otherwise
provided for herein.
14.07. Expense of Arbitration. The expenses of any arbitration proceeding pursuant to this
part shall be borne equally by the parties to such proceeding, provided, however, for the
purpose of this Section 14.07, "expenses" shall include the fees and expenses of the
arbitrators and the American Arbitration Association with respect to such proceeding, but
shall not include attorneys' fees or expert witness fees, or any costs incurred by
"attorneys or expert witnesseS!, unless (and to the extent) agreed to by the parties to such
proceeding, which in the absence of such Agreement shall be the responsibility of the
party incurring such fees or costs.
14.08. Accelerated Arbitration.
1.
a.
If any of the parties to any arbitration proceeding under this part
determines the matter for arbitration should be decided on an expedited
basis, then after an initial election to invoke arbitration pursuant to Section
14.02 hereof has been made, either party to such proceeding may invoke
accelerated arbitration by giving notice thereof to the other parties no later
than three (3) days after arbitration has been initially invoked and the
other parties do not object within three (3) days thereafter.
b. Accelerated arbitration, for purposes of this Section 14.08, shall be
accomplished by either party notifying the American Arbitration
Association (or any successor organization thereto) that the parties have
agreed to a single arbitrator, qualified to decide the matter for arbitration,
to be appointed by the American Arbitration Association (or any
successor organization thereto) with the consent of the parties to such
proceeding within three (3) days after receipt of the request and to decide
such matter within five (5) days after such appointment.
c. If an arbitrator is not so appointed with consent of the parties to the
proceeding within three (3) days after the notice referred to in paragraph
(2) is received by the American Arbitration Association, the accelerated
proceeding under this Section 14.08 shall terminate and the procedures
otherwise set forth in this Article 14 shall apply, unless the parties
mutually agree to an extension of such time period.
2. The Developer and the City hereby agree to use such accelerated procedure
only when reasonably necessary, to not contest the appointment of the arbitrator
or his or her decision except as may be permitted by law, and that all other
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ADOPTED
. provisions of this part, except as are in conflict with this Section 14.08, remain in
effect and applicable to an accelerated arbitration proceeding.
14.09. Applicable Law. To the extent not inconsistent with this article, any arbitration
proceeding under this article shall be governed by the provisions of Chapter 682, Florida
Statutes, as amended, known and referred to as the Florida Arbitration Code.
14.10. Arbitration Proceedings and Records. Any arbitration hearing under this article shall
be considered a meeting subject to Section 286.011, Florida Statutes, and shall be open
to any member of the public. . Unless otherwise rendered confidential pursuant to or by
the operation of any applicable law or order (other than an order by a sole arbitrator or
panel of arbitrators acting under this part), the record of such proceedings shall be a
public record under Chapter 119, Florida Statutes.
ARTICLE 15. UNAVOIDABLE DELAY.
15.01. Unavoidable Delay.
1. Any delay in performance of or inability to perform any obligation under this
Agreement (other than an obligation to pay money) due to any event or condition
described in paragraph (b) as an event of "Unavoidable Delay" shall be excused
in the manner provided in this Section 15.01.
2. "Unavoidable Delay" means any of the following events or conditions or any
combination thereof: acts of God, litigation which has the effect of precluding
reasonable satisfaction of the obligations of this Agreement, acts of the public
enemy, riot, insurrection, war, pestilence, archaeological excavations required by
law, unavailability of materials after timely ordering of same, epidemics,
quarantine restrictions, freight embargoes, 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 City
shaH not constitute an Unavoidable Delay with respect to performance by the
City). '
3. An application by any party hereto (referred to in this paragraph (c) and in
paragraph (d) as the "Applicant") for an extension of time pursuant to this
subsection must be in writing, must set forth in detail the reasons and causes of
delay, and must be filed with the other party to this Agreement within seven (7)
days following the occurrence of the event or condition causing the Unavoidable
Delay or seven (7) days following the Applicant becoming aware (or with the
exercise of reasonable diligence should have become aware) of such
occurrence.
4. The Applicant shall be entitled to an extension of time for an Unavoidable Delay
only for the number of days of delay due solely to the occurrence of the event or
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ADOPTED
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 16. INTENTIONALLY DELETED.
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ADOPTED
ARTICLE 17. FIRE OR OTHER CASUALTY; CONDEMNATION.
17.01. Loss or Damage to Project.
1. Until the Termination Date or the Expiration Date, and without regard to the
extent or availability of any insurance proceeds, however, subject to any
condition or limitations as set forth in the Permits, the Developer shall have the
right to commence and complete the reconstruction or repair of any loss or
damage caused by fire or other casualty or by eminent domain (provided the City
is not the condemning authority) to each and every part of the Boat Docking
Facilities substantially the same condition as existed prior to the occurrence of
such loss or damage, promptly after the City approves the Plans and
Specifications for such reconstruction or repairs.
2. The City shall review the Plans and Specifications for such reconstruction or
repairs as soon as possible after filing thereof by the Developer. The City agrees
to approve the Plans and Specifications for such reconstruction or repairs if the
reconstruction or repairs contemplated by such Plans and Specifications will
restore the Boat Docking Facilities, or the damaged portion thereof, to
substantially the same condition as existed prior to the occurrence of such loss or
damage and if such Plans and Specifications conform to the applicable laws,
ordinances, codes, and regulations in effect at the time of filing with the City of
the plans and specifications for such reconstruction or repairs.
3. If Developer elects not to reconstruct or repair the Boat Docking Facilities as
provided herein, Developer shall promptly remove all imprQvements constituting
the Boat Docking Facilities in compliance with the requirements of the City and
the Permits.
17.02. Partial Loss or Damage to Project. Until the Termination Date or the Expiration Date,
any loss or damage by fire or other casualty or exercise of eminent domain to the Boat
Docking Facilities, or any portion thereof, which does not render the Boat Docking
Facilities unusable for the use contemplated by Section 2.03 of this Agreement, shall not
operate to terminate this Agreement or to relieve or discharge the Developer from the
timely performance and fulfillment of the Developer's obligations pursuant to this
Agreement, subject to an extension of time for an Unavoidable Delay.
17.03. Insurance Proceeds.
1. Whenever the Boat Docking Facilities, or any part thereof, shall have been
damaged or destroyed, the Developer shall promptly make proof of loss and shall
proceed promptly to collect, or cause to be collected, all valid claims which may
have arisen against insurers or others based upon such damage or destruction.
Notwithstanding the foregoing, Developer shall not be obligated to obtain or
provide casualty insurance as to the Boat Docking Facilities.
2. Subject to the rights of a Project Lender, the Developer agrees that all proceeds
of property or casualty insurance received by the Developer as a result of such
loss or damage shall be available and shall be used for payment of the costs of
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ADOPTED
the reconstruction or repair of the Boat Docking Facilities to the extent necessary
to repair or reconstruct the Boat Docking Facilities.
17.04. Notice of Loss or Damage to Boat Docking Facilities. The Developer shall promptly
give the City written notice of any significant damage or destruction to the Boat Docking
Facilities stating the date on which such damage or destruction occurred, the
expectations of the Developer as to the effect of such damage or destruction on the use
of the Boat Docking Facilities, and the proposed schedule, if any, for repair or
reconstruction of the Boat Docking Facilities.
17.05. Condemnation of Boat Docking Facilities; Application of Proceeds. In the event
that part, but not all, of the Boat Docking Facilities shall be taken by the exercise of the
power of eminent domain at any time before the Expiration Date, subject to the rights of
a Project Lender, the compensation awarded to and received by the Developer shall be
applied first to the restoration of the Boat Docking Facilities, provided the Boat Docking
Facilities can be restored and be commercially feasible for its intended use as
contemplated by Section 2.03.1. of this Agreement after the taking, and, if not, can be
retained by the Developer.
ARTICLE 18. MISCELLANEOUS
18.01. Assignments.
1. Bv the Developer.
a. The Developer may sell, convey, assign or otherwise dispose of any or all
of its right, title, interest and obligations in and to the Boat Docking
Facilities, or any part thereof, only with the prior written consent of the
City, which consent is hereby granted for assignment to a party to which
Developer's rights are assigned pursuant to the Development Agreement,
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 Boat Docking Facilities as
is subject to such sale, conveyance, assignment or other disposition.
b. If the assignee of the Developer's right, title, interest and obligations in
and to the Boat Docking Facilities, or any part thereof assumes all of the
Developer's obligations hereunder, 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.
c. An assignment of the Boat Docking Facilities, 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 or transfer
subject to any restriction on or approvals of assignments or transfers
Amendment to Development Agreement
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ADOPTED
imposed by this Section 18.01, 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.
d. Notwithstanding the foregoing, so long as this Agreement is in effect,
Developer shall have the right to sublease or license the use of individual
Developer Boat Slips to owners, tenants and guests in accordance with
Subsection 2.03.05 above without City's consent.
18.02. 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 its
successors and assigns, except as may otherwise be specifically provided herein.
18.03. Notices.
1. 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 courier service, or
by hand delivery to the office for each party indicated below and addressed as
follows:
To the Developer:
To the City:
THE SANDPEARL RESORT, LLC
2201 - 4th Street North
Suite 200
St. Petersburg, FL 33704
Attn: J. Michael Cheezem
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
with copies to:
with copies to:
E.D. (Ed) Armstrong, III
P.O. Box 1368
Clearwater, FL 33757
Pam Akin, Esquire
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
and
Greene & Schermer
1301 - 6th Avenue West
Suite 400
Bradenton, FL 34205
Attn: Robert F. Greene, Esquire
2. Notices given by courier service or by hand delivery shall be effective upon
delivery and notices given by mail shall be effective upon receipt. 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 18.03. The addresses to which
notices are to be sent may be changed from time to time by written notice
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ADOPTED
delivered to the other parties and such notices shall be 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.
18.04. Applicable Law and Construction. The laws of the State of Florida shall govern the
validity, performance and enforcement of this Agreement. This Agreement has been
negotiated by the City and the Developer and the Agreement, including, without
limitation, the Exhibits, shall not be deemed to have been prepared by the City or the
Developer, but by all equally.
18.05. Venue; Submission to Jurisdiction.
1. For purposes of any suit action, or other proceeding arising out of or relating to
this Agreement, the parties hereto do acknowledge, consent, and agree that
venue thereof is Pinellas County, Florida.
2. Each party to this Agreement hereby submits to the jurisdiction of the State of
Florida, Pinellas County and the courts thereof and to the jurisdiction of the
United States District Court for the Middle District of Florida, for the purposes of
any suit, action, or other proceeding arising out of or relating to this Agreement
and hereby agrees not to assert by way of a motion as a defense or otherwise
that such action is brought in an inconvenient forum or that the venue of such
action is improper or that the subject matter thereof may not be enforced in or by
such courts.
3. If at any time during the term of this Agreement the Developer is not a resident of
the State of Florida or has no office, employee, City 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 City, or both, arising out of or relating to this
Agreement and such service shall be made as provided by the laws of the Sta~e
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 18.03.
18.06. Estoppel Certificates. The Developer and the City 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 18.06 may be relied upon by any
prospective purchaser, mortgagee, successor, assignee of any mortgage or assignee of
the respective interest in the Boat Docking Facilities, if any, of any party made in
accordance with the provisions of this Agreement.
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ADOPTED
18.07. Complete Agreement; Amendments.
1. 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.
2. Any provision of this Agreement shall be read and applied in para materia with all
other provisions hereof.
3. This Agreement cannot be changed or revised except by written amendment
signed by all parties hereto.
18.08. Captions. The article and section headings and captions of this Agreement and the
table of contents preceding this Agreement are for convenience and reference only and
in no way define, limit, describe the scope or intent of this Agreement or any part thereof,
or in any way affect this Agreement or construe any article, section, subsection,
paragraph or provision hereof.
18.09. Holidays. It is hereby agreed and declared that whenever a notice or performance
under the terms of this Agreement is to be made or given on a Saturday or Sunday or on
a legal holiday observed in the City, it shall be postponed to the next following business
day.
18.10. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of
this Agreement. The Exhibits and any amendments or revisions thereto, even if not
physically attached hereto shall be treated as if they are part of this Agreement.
18.11. No Brokers. The City 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.
18.12. Not an Agent of City. During the term of this Agreement, the Developer hereunder
shall not be an agent of the City 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 Boat
Docking Facilities.
18.13. Memorandum of Agreement. The City and the Developer agree to execute, in
recordable form, at the request of either party, a short form "Memorandum of
Agreement" 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 Developer shall pay the cost of such recording.
18.14. Public Purpose. The parties acknowledge and agree that this Agreement satisfies,
fulfills and is pursuant to and for a public purpose and municipal purpose and is in the
public interest, and is a proper exercise of the City's power and authority.
18.15. No General Obligation. In no event shall any obligation of the City under this
Agreement be or constitute a general obligation or indebtedness of the City, a pledge of
the ad valorem taxing power of the City or a general obligation or indebtedness of the
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ADOPTED
City within the meaning of the Constitution of the State of Florida or any other applicable
laws, but shall be payable solely from legally available revenues and funds. Neither 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 or any other
governmental entity or taxation in any form on any real or personal property to pay the
City's obligations or undertakings hereunder.
18.16. Other Requirements of State Law. Nothing in this Agreement shall be deemed to
relieve either party from full compliance with any provision of State law which is
applicable to any of the obligations or undertakings provided for in this Agreement. In the
event that this Agreement omits an obligation to comply with any provision of State law
in regard to any of the obligations or undertakings provided for in this Agreement, it is
the intention of the parties that such applicable State law shall be deemed incorporated
into this Agreement and made a part thereof. In the event that there is any conflict
between the provisions of this Agreement and applicable State law, it is the intention of
the parties that the Agreement shall be construed to incorporate such provisions of State
law and that such provisions shall control.
18.17. 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
City Manager is authorized to approve such technical amendments on behalf of the City,
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.
18.18. Term; Expiration; Certificate.
1. If not earlier terminated as provided in Section 12.05, this Agreement shall expire
and no longer be of any force and effect on the fifth (5th) anniversary of the Lease
Commencement Date. The City shall have the unilateral option to renew this
Agreement for five (5) successive renewal terms of five (5) years each by written
notice to Developer. The date of expiration of this Agreement is the "Expiration
Date".
2. If the City exercises all five (5) renewal options this Agreement shall expire on
the date that is thirty (30) years after the Lease Commencement Date ("Final
Expiration Date") and exclusive possession of the Boat Docking Facilities shall
be relinquished by Developer to City together with ownership of all improvements
within the Boat Docking Facilities (excluding the Slip Improvements)
("Improvements"). At the request of the City, Developer shall execute and deliver
to City a Bill of Sale as to all Improvements. In the event the City does not
exercise one of the renewal options so that this Agreement expires prior to the
Final Expiration Date, City agrees to pay to Developer an amount equal to the
unamortized cost on the Expiration Date incurred by Developer in connection
with the design, permitting and construction of all Improvements ("Project Costs")
such unamortized Project Costs to be determined by amortizing the Project
Costs on a straight line basis over the thirty (30) year period commencing on the
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ADOPTED
Lease Commencement Date. Upon expiration or termination of this Agreement,
Developer may at its option and at its sole expense remove the Slip
Improvements. Costs relating to the Slip Improvements shall not be considered
part of the Project Costs. The total Project Costs to be amortized as provided
above shall not exceed $1,000,000.00.
3. Upon completion of the term of this Agreement including all renewal terms
exercised by City, 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 of this Agreement.
4. In the event of any dispute as to whether any party is required to execute the
Agreement Expiration Certificate, the dispute shall be resolved by arbitration as
provided in Article 14.
5. 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.
18.19. Approvals Not Unreasonably Withheld. The parties hereto represent that it is their
respective intent as of the Effective Date and do covenant and agree in the future that all
approvals, consents, and reviews will be undertaken and completed as expeditiously as
possible, in good faith, and will not be arbitrarily or unreasonably withheld, unless
otherwise expressly authorized by the terms of this Agreement.
18.20 Severability. If any term, provision or condition contained in 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.
18.21. Effective Date. The Effective Date shall be the date of the last signature to this
Agreement.
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SIGNATURE PAGES FOLLOW
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ADOPTED
. Ii
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of this _ day of , 2007.
Attest:
By:
City Clerk
Approved as to form and correctness:
, Esquire
City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
THE CITY OF CLEARWATER, FLORIDA
By:
Mayor
By:
William B. Horne II
City Manager
The foregoing instrument was acknowledged before me this day of
, 2007, by and , Mayor and City Clerk,
respectively, for the City of Clearwater, Florida, on behalf of the City, who is 0 personally known
to me or 0 has produced a Florida driver's license or 0 as
identification.
Amendment to Development Agreement
Page 38
ADOPTED
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
. ~
THE SANDPEARL RESORT, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 2007, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of The Sand pearl Resort, LLC, a Florida limited liability company, who is 0
personally known to me or 0 ha$ produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
#404229 v1 - Sandpearl/Amendment to Dev Agt
Amendment to Development Agreement
Page 39
ADOPTED
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EXHIBIT "B"
CITY PROPERTY
LEGAL DESCRIPTION
Upland Property
PID# OS/29/15/00000/330/0100
BEG AT NW COR LOT 9 YACHT BASIN SUB RUN N'LY ALONG E RIW MANDALAY AVE
400 FT(S) TH E'L Y ALONG S RIW CLEARWATER ST 915 FT(S) TH S'L Y ALONG
SEAWALL 195 FT(S) TH W'LY MEANDERING SHORELINE 700 FT(S) TH S'LY 100 FT(S)
TH SW'L Y ALONG SEAWALL 245 FT(S) TH S'L Y 60 FT(S) TH W'L Y 27 FT(S) TO POB
CO NT 4.13 AC(C)
Amendment to Development Agreement
Page 42
ADOPTED
- II(~' ;,
EXHIBIT "C"
M~NTENANCESTANDARDS
DAILY:
. Inspect Boat Docking Facilities
. Enforce use restrictions
. Respond to emergency conditions
WEEKL Y:
. Trash removal (or more frequently as needed)
. Lighting inspection and light bulb replacement
. General maintenance inspection. Docking Facilities to be
maintained in good condition and repair with all deteriorated or
damaged materials and loose screws/nails replaced as needed. All
repairs to be completed within ten (10) working days, however any
repairs required for safe use of facilities shall be completed as soon as
possible under the circumstances.
QUARTERL Y:
. Thorough inspection of Docking Facilities with the City Harbor
Master. All required repairs identified in quarterly inspection to be
documented by written report and signed by a representative of
Developer and City Harbor Master. All repairs to be completed in the
time frame to be stated in the inspection report and Developer shall
provide written certification upon completion.
#404229 v1 - Sandpearl/Amendment to Dev Agt
Amendment to Development Agreement
Page 43
ADOPTED