BOAT DOCK AGREEMENTAGREEMENT
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This Agreement (the "Agreement") is made as of thisday of ea -644-4 ,
2019, 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, City and Developer entered into a Development Agreement for Property in
the City of Clearwater dated January 26, 2005 recorded in Official Records Book 14089, Page
314 of the Public Records of Pinellas County, Florida ("Original Development Agreement"); and
WHEREAS, the Original Development Agreement was amended by Amendment to
Development Agreement for Property in the City of Clearwater dated September 12, 2007 and
recorded in Official Records Book15983, Page 1204 of the Public Records of Pinellas County,
Florida ("Amendment to Development Agreement"). The Original Development Agreement as
amended by Amendment to Development Agreement is referred to as the "Development
Agreement"; and
WHEREAS, pursuant to the Development Agreement, the City and Developer entered into
a separate Agreement dated September 12, 2007 as to the development of shared Boat Docking
Facilities in the Boat Basin a copy of which is attached to the Development Agreement as Exhibit
N-1 ("Original Boat Dock Agreement"); and
WHEREAS, subsequent to the execution of the Original Boat Dock Agreement, it was
determined that the submerged land in the Boat Basin was owned in fee simple by the Board of
Trustees of the Internal Improvement Trust Fund of the State of Florida ("State"); and
WHEREAS, the Original Boat Dock Agreement has, by its terms, expired; and
WHEREAS, the City, as appurtenant upland owner, applied to the State for a Sovereignty
Submerged Lands Lease ("SSLL"), which SSLL was approved by State and submitted to City for
execution; and
WHEREAS, in connection with the execution of the SSLL, City and Developer have
agreed to enter into a new Boat Dock Agreement.
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 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 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 which
was 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 continued use 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 includes a central pier, finger piers and associated pilings
as conceptually depicted on the attached Exhibit "A", which accommodates 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:
(a) Only low profile pilings and/or tie poles shall be used in the Boat Docking
Facilities. As used in this Agreement, the term "low profile" means having
a height of four (4) feet or less above the height of the decking of the dock.
(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 Vessels 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 City Slips are to be
paid by Developer. City shall pay all lease payments and all other applicable payments
and charges due to the State of Florida pursuant to the SSLL. Developer will
reimburse the City for Developer's prorate share of all payments made to the SSLL,
which is 27/42 or 64.29% of all payments made to the State of Florida pursuant to the
SSLL, within thirty (30) days of receipt of an invoice. 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 (i) residents
of the City, (ii) owners of real property within the City and their tenants and (iii) owners,
tenants and guests (including Beach Club Members) of the Project. Any sublease or
assignment by Developer of rights to utilize Developer Boat Slips shall be limited to
such residents, 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
hour/ 7 day per week basis. Neither the City nor Developer shall have any obligation
to provide on-site security at the Boat Docking Facilities.
2.04. Cooperation of the Parties. The City and the Developer recognize that the successful
maintenance 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 Approvals and Permits.
1. Applications for Approval. To the extent necessary, 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 any 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,
maintenance, 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.
ARTICLE 4. PLANS AND SPECIFICATIONS.
4.01. Plans and Specifications.
1. Responsibility 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. MAINTENANCE 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 located adjoins the
City Property, is located on submerged lands owned by the State of Florida and leased to
the City pursuant to the SSLL, and is depicted on the Site Plan attached as Exhibit "A".
5.03. Obligations of the City.
1. Sublease of Developer Slips. The City agrees to enter the SSLL with the State of
Florida for certain submerged land as described in the SSLL. This Agreement
shall constitute a sublease to Developer of the portion of the Boat Basin on which
the Developer Slips and associated finger piers shall be located ("Leased
Premises") together with the non-exclusive right to utilize the central pier and City
Property for access to the Developer Slips. The term of the sublease shall be for
the term of this Agreement as provided in Section 18.18 below.
Subject to Section 18.01, if Developer subsequently transfers or assigns the right
to use the Developer Slips to another party, the instrument or agreement used to
transfer the Developer Slips shall contain a provision that requires six percent (6%)
of the annual gross income derived from the instrument or agreement for the use
of the Developer Slips be paid to the City who, upon receipt, will report and transmit
said amount to the State of Florida.
No interest in the Developer Slips shall be further transferred unless a substantially
similar provision to the one contained in the proceeding paragraph is placed in
each succeeding instrument or agreement used to transfer the Developer Slips to
each new slip renter, user, or holder.
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.
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 Construction Completion Affirmation. The Parties agree that the Boat Docking
Facilities has been constructed in substantial conformity with Article 7 of the Original Boat
Dock Agreement.
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.
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:
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 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 oversee and
manage the 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 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
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 maintain the Boat Docking Facilities and shall promptly notify the 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 maintain 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 maintain 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 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
maintenance 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 use of the Boat Docking Facilities.
ARTICLE 11. CONDITIONS PRECEDENT.
11.01. Developer Obligations. Unless this Agreement has been terminated pursuant to Article
12 hereof, the obligation of the Developer to maintain 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 and
maintenance 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 and maintenance 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 any one 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
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
2. 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.
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. a. 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.
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
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.
12.05. 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 maintenance 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
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. 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.
2. 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.
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 of the
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 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 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 shall not constitute an Unavoidable Delay
with respect to performance by the City).
3. An application by any party hereto (referred to in this paragraph (c) and in
paragraph (d) as the "Applicant") for an extension of time pursuant to this
subsection must be in writing, must set forth in detail the reasons and causes of
delay, and must be filed with the other party to this Agreement within seven (7)
days following the occurrence of the event or condition causing the Unavoidable
Delay or seven (7) days following the Applicant becoming aware (or with the
exercise of reasonable diligence should have become aware) of such occurrence.
4. The Applicant shall be entitled to an extension of time for an Unavoidable Delay
only for the number of days of delay due solely to the occurrence of the event or
condition causing such Unavoidable Delay and only to the extent that any such
occurrence actually delays that party from proceeding with its rights, duties and
obligations under this Agreement affected by such occurrence.
ARTICLE 16. INTENTIONALLY DELETED.
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 improvements 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
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. By 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 imposed by this Section 18.01,
provided, however, that notice of such assignment shall be given by the
Developer to the City not Tess 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:
THE SANDPEARL RESORT, LLC
500 Mandalay Avenue
Clearwater, FL 33767
Attn: Don Wolfe
with copy to:
Greene Hamrick Quinlan & Schermer, P.A.
601 12th Street West
Bradenton, FL 34205
Attn: Robert F. Greene, Esquire
To the City:
City of Clearwater
P.O. Box 4748
Clearwater, FL 33756
with copies to:
Pam Akin, Esquire
Clearwater City Attorney
P.O. Box 4748
Clearwater, FL 33756
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 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 State of Florida for
service upon a non-resident; provided, however, that at the time of service on the
Florida Secretary of State, a copy of such service shall be delivered to the
Developer at the address for notices as provided in 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.
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 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 April 30, 2024. 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 April
30, 2049 ("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 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.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of this mat day of(Q6-P4/ A , 2019.
Approved as to form:
Michael P. Fuino
Assistant City Attorney
THE CITY OF CLEARWATER, FLORIDA
ckwrr\ crAticos
George N. Cretekos
Mayor
Attest:
Rosemarie Call
City Clerk
THE SANDPEARL RESORT, LLC,
a Florida limited liability company
By: CLEARPEARL LLC
a Florida limited liability company
Managing Member
By: Cac g.)
Name: at tio4 2 -
Title: 6.0)c) -rft itirfAALr
STATE OF1
COUNTY OF C(viIds
The foregoing instrument was acknowledged before me this �j day of _
2019, 'tc.\x.hqt+L_ as Manager of Clearpearl LLC, a Florida ifted liability
company, the Mana ing Member of The Sandpearl Resort, LLC, a Florida limited liability
company, who is +personally known to me or o has produced a Florida driver's license or ❑
as identification.
GINA M. FALCONE
Notary Public - State of Florida 0
Commission # GG 355952
My Comm. Expires Aug 13, 2023
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NOTARY PUBLI
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EXHIBIT "B"
CITY PROPERTY
LEGAL DESCRIPTION
Upland Property
PID# 05/29/15/00000/330/0100
BEG AT NW COR LOT 9 YACHT BASIN SUB RUN N'LY ALONG E RNV MANDALAY AVE
400 FT(S) TH E'LY ALONG S RNV CLEARWATER ST 915 FT(S) TH S'LY ALONG
SEAWALL 195 FT(S) TH W'LY MEANDERING SHORELINE 700 FT(S) TH S'LY 100 FT(S)
TH SW'LY ALONG SEAWALL 245 FT(S) TH S'LY 60 FT(S) TH W'LY 27 FT(S) TO POB
CONT 4.13 AC(C)
DAILY:
WEEKLY:
QUARTERLY:
EXHIBIT "C"
MAINTENANCE STANDARDS
• Inspect Boat Docking Facilities
• Enforce use restrictions, including, but not limited, the use restrictions
found in Section 2.03.5 of this Agreement
• Respond to emergency conditions
• 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.
• 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.