SECOND AMENDMENT TO THE HOTEL DENSITY RESERVE DEVELOPMENT AGREEMENTKEN BURKE, CLERK OF COURT
AND COMPTROLLER PINELLAS COUNTY, FL
INST# 2021398121 12/08/2021 02:59 PM
OFF REC BK: 21841 PG: 115-170
DocType:AGM RECORDING: 5477.50
SECOND AMENDMENT TO THE
HOTEL DENSITY RESERVE DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT TO THE HOTEL DENSITY RESERVE
DEVELOPMENT AGREEMENT ("AMENDMENT") is dated the`" day of
`n , 2021, and entered into by and between 411ES, LLC, a Florida limited liability
company ("Developer"), its successors and assigns, and the CITY OF CLEARWATER,
FLORIDA, a municipality of the State of Florida acting through its City Council, the governing
body thereof ("City").
WITNESSETH:
WHEREAS, Developer and the City entered into that certain Hotel Density Reserve
Development Agreement dated July 18, 2019 (the "Development Agreement") a full copy of
which is attached hereto as Exhibit 1 which allocated eight (8) units from the Hotel Density
Reserve to that certain real property located at 400, 405, 408, 409, and 411 East Shore Drive,
Clearwater, FL 33767 (the "Property"); and
WHEREAS, on or about May 1, 2020, Developer filed a Flexible Development
Application (FLD 2020-05012) and a Transfer of Development Rights Application (successor
application number: TDR 2020-07002) to develop the Project. The applications were consistent
with the conceptual site plan and elevations approved as part of HDA2019-03001; and
WHEREAS, on October 1, 2020, the City Council approved the First Amendment to Hotel
Density Reserve Development Agreement extending the deadline for the Developer to obtain site
plan approval from one (1) year from the effective date of the Development Agreement to two (2)
years from the effective date of the Agreement a full copy of which is attached hereto as Exhibit
2; and
WHEREAS, on November 17, 2020, the Community Development Board approved the
Developer's site plan as part of application FLD2020-05012 and a Transfer of Development Rights
("TDR") as part of application TDR2020-07002 which included the use of 11 transferred hotel
units; and
WHEREAS, the current proposal includes the use of an additional 17 units yielding a total
of 28 transferred hotel unit; and
WHEREAS, as a condition of approval of applications FLD2020- 05012/TDR2020-07002
(condition 6), the Developer is required to file amended TDR and FLD applications in order to use
any more than seven (7) transferred hotel development units; and
WHEREAS, the Developer intends to submit TDR and FLD applications to construct the
remaining seven (7) transferred hotel units and to transfer in 10 additional hotel units increasing
the total number of overnight accommodation units from 74 units to 91 units; and
WHEREAS, eight (8) units from the Hotel Density Reserve were previously allocated to
the Project (HDA2019-03001 as amended), the Developer is not seeking to add any additional
units from the Hotel Density Reserve through this amendment, and the Developer intends to fully
construct all eight (8) allocated units; and
WHEREAS, the Developer and the City agree to increase the total number of overnight
accommodation units in the Project from 74 units to 91 units, to increase the required parking
spaces from 89 spaces to a minimum of 113 spaces or 1.2 spaces per hotel unit and one space per
two publicly accessible boat slips, whichever is greater, to increase the height from 65 feet as
measured from the point at which minimum floor elevations have been established by law to up to
80 feet as measured from the point at which minimum floor elevations have been established by
law, and to amend certain other provisions of the Development Agreement as set forth herein; and
WHEREAS, upon completion the planned hotel will contain 91 overnight accommodation
units, which includes eight (8) units previously allocated from the Hotel Density Reserve
("Reserve Units"); and 28 transferred hotel units of which 11 have been approved for use
(FLD2020-05012/TDR2020-05001) and 17 will need to be approved for use by amending
applications FLD2020-05012 and TDR2020-05001.
NOW THEREFORE, in exchange for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Developer and the City agree as follows:
RECITALS:
1. The recitals listed above are true and correct and incorporated herein by reference.
AMENDMENT TO DEVELOPMENT AGREEMENT:
2. The sixth (6th) recital of the Development Agreement is hereby deleted and the following
is substituted in Lieu thereof:
"WHEREAS, the Developer desires to develop the Property to provide 91 overnight
accommodation units, pool, lobby, and parking, generally conforming to the architectural
elevation dimensions shown in composite Exhibit "B" (collectively, the improvements are
the "Project"); and"
3. The eighth (8th) recital of the Development Agreement is hereby deleted, and the following
is substituted in lieu thereof:
"WHEREAS, upon completion the planned hotel will contain 91 overnight
accommodation units, which includes eight (8) units from the available Hotel Density
Reserve ("Reserve Units"); and 28 Units from TDR's to be acquired."
4. Amendment of SECTION 4. Scope of Project. Sections 4.1, 4.2, and 4.4 are hereby
deleted, and the following is substituted in lieu thereof:
"4.1 The Project shall consist of 91 overnight accommodation units including eight (8)
overnight accommodation units previously allocated from the Hotel Density Reserve
with a total of an additional 28 units acquired through the use of TDR's and have an
overall density no greater than 150 units per acre and a 50 -slip dock which will include
a maximum of eight (8) marina facility slips that are publicly accessible.
"4.2 The Project shall include a minimum of 113 parking spaces (1.2 spaces per hotel
unit and one space per two publicly accessible slips), as defined in Code."
"4.4 The height of the Project shall be up to 80 feet as measured from the point at which
minimum floor elevations have been established by law as defined by Article 8 of the
City's Community Development Code and as otherwise permitted utilizing the Height
Bonus Schedule for the Marina District of Beach by Design the consolidation of
property totaling one acre or more on both sides of East Shore Drive and the provision
of a publicly accessible Boardwalk. The maximum building heights of the various
character districts cannot be increased to accommodate hotel rooms allocated from the
Hotel Density Reserve."
5. Amendment of SECTION 6. Obligations under this Agreement. Sections 6.1.11.2 and
6.1.11.3 are hereby deleted, and the following is substituted in lieu thereof:
"6.1.11.2 The Developer agrees that the number of conveyable Marina Slips shall be
limited to no more than eight (8). The Developer may not increase the number of
conveyable marina slips without an amendment to this Development Agreement. The
Developer may, however, decrease the number of conveyable marina slips through
removal or conversion to slips as accessory to the hotel (commercial dock) without the
need to further amend this agreement."
"6.1.11.3 The Developer agrees that any conveyable marina slips shall be limited to
sale and/or lease to privately -owned boats rather than commercial vessels for hire
including the rental of PWC."
Section 6.1.12 is hereby added as follows:
"6.1.12 Prohibition on Lockout Units. The Developer agrees there shall be no locking
internal door within any unit that creates a lock -out unit which can create additional
hotel units greater than the approved maximum density of 91 overnight accommodation
units."
6. Amendment of Exhibit "B". Exhibit "B" to the Development Agreement is hereby
deleted and Amended Exhibit "B" attached hereto is substituted in lieu thereof.
7. No Further Changes. Except as set forth herein there are no further changes,
amendments or modifications to the Development Agreement.
Print N. e: .A1 C ieiA 04
As to "Developer"
Print Name:
Print Name:
As to "City"
Developer:
411 ES, LLC
By:
Huijun Yang, anaging member
City:
CITY OF CLEARWATER, FLORIDA
By:
Jon Jennings,
City Manager
Attest:
Rosemarie Call, City Clerk
Countersigned:
Frank V. Hibbard, Mayor
=G
Inal /111k
Appro el . s to Py :
Matthew Mytych
Assistant City Attorney
Amended Exhibit "B" to Development Agreement
NEW CONSTRUCTION
THIS DOCUMENT SUPERSEDES PREVIOUSLY APPROVED 910201005012 FOR THE PROPERTY LOCATED
AT 411& Sl SHORE DRIVE, CLEARWATER FLORIDA MAMMY SUBMITTED ON OCTOBER b, 2019.
DESCRIPTION OF WORK
E
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MEASURED
RONTS ARE FOR
FLOW ELEVATRRUCTHATNNCAUDES(11)LTEVVEEYS NO GGROUND 0LEVEL 40.pUP
PARKING FREE-STANDING BULLING LOCATED M THE CRY OF CLEARWATER BEACH N THE BARNA
DISTRICT.
THE PROPOSED USE WILL BE A TYPE R-1 HOTEL RRARSENN WRY RI LEVELS TOTALING (91) UNITS
ABOVE THE LU LEVEL OF PARKING. A LOSER' WILL RELOCATED% THE LEVEL ].
THE RMO.. WILL ALSOINCLUDE A GROUND LEVEL POOL ANO NM COON ANDA LEVEL. &R, BRCHEN
AND LOUNGE WITH OUTDOOR TERRACE SEATING.
TEE LOOTIHS NALL BE CONSTRUCTEDPORED CONCRETE ELIXIRS AND COLUMNS WITH EXTERIOR
ALSO WORRY W. STUCCO AND cONOSITE PANEL FINISHES.
A MARINA WILL BE ASSOCIATED 919411 1H 6 PROPORTY MCLUDNG IS%BOAT RLPS.
THE CONSTRUCTOR OF ALL ASPECTS OF THE GIME NG W LL CONFORM TO All cm, COUNTY, STATE
AM/FEDERAL REGULATIONS AS REOUNEO.
ALL DORS AS COHTENPUTED, NU BE EXECUTED WITH%THE APPLICABLE FDL. 20M TN EDITION AND
NEMA GUI/% NES.
BUILDING DATA
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THIS HOTEL DENSITY RESE VE DEVELOPMENT AGREEMENT
("Agreement") is dated theAg("t day of 2019, and entered into
between EAST SHORE INTERNATION E ERPRISES, LLC & 411 E S,
both being Florida limited liability companies ("Developer"), its successors and assigns, and
the CITY OF CLEARWATER, FLORIDA, a municipal corporation of the State of
Florida acting through its City Council, the governing body thereof ("City").
RECITALS:
WHEREAS, one of the major elements of the City's revitalization effort is a
special area plan for the revitalization of Clearwater Beach adopted under the
provisions of the Florida Growth Management Act, Florida Statutes Chapter 163, Part II,
and entitled Beach by Design; and
WHEREAS, Florida Statutes Sections 163.3220 - 163.3243, the Florida
Local Government Development Agreement Act ("Act"), authorize the City to enter into
binding development agreements with persons having a legal or equitable interest in real
property located within the corporate limits of the City; and
WHEREAS, under Section 163.3223 of the Act, the City has adopted Section 4-
606 of the City of Clearwater Community Development Code ("Code"), establishing
procedures and requirements to consider and enter into development agreements; and
WHEREAS, Beach by Design proposed the development of hotel units to equalize
development opportunities on the beach and ensure Clearwater Beach remains a quality,
family resort community, and further provided for a limited reserve of additional hotel
units ("Hotel Density Reserve") to be made available for such mid-sized hotel projects;
and
WHEREAS, the Developer owns 1.11 acres of real property ("Property") in the
corporate limits of the City, more particularly described on Exhibit "A" attached hereto and
incorporated herein; and
WHEREAS, the Developer desires to develop the Property to provide 74 overnight
accommodation units, pool, lobby, roof top sun deck and parking, generally conforming
to the architectural elevation dimensions shown in composite Exhibit "B" (collectively,
the improvements are the "Project"); and
WHEREAS, the Property has not previously acquired density from the
Destination Resort Density Pool; and
WHEREAS, upon completion the planned hotel will contain 74 overnight
accommodation units, which includes 8 units from the available Hotel Density Reserve
("Reserve Units"); and 11 Units from TDR's to be acquired.
KEN BURKE, CLERK OF COURT
AND COMPTROLLER PINELLAS COUNTY, FL
INST# 2019233713 07/24/2019 02:24 PM
OFF REC BK: 20626 PG: 1023-1047
1 DocType:AGM RECORDING: $214.00
WHEREAS, the City has conducted such public hearings as are required by and in
accordance with Florida Statutes Section 163.3225, Code Sections 4-206 and 4-606, and
any other applicable law; and
WHEREAS, the City has determined that, as of the date of this Agreement,
the proposed project is consistent with the City's Comprehensive Plan and Land
Development Regulations; and
WHEREAS, at a duly noticed and convened public meeting on
30 y ! g , 201! the City Council approved this Agreement and
authorized and directed its execution by the appropriate officials of the City; and
WHEREAS, approval of this Agreement is in the interests of the City in furtherance
of the City's goals of enhancing the viability of the resort community and in furtherance of
the objectives of Beach by Design; and
WHEREAS, Developer has approved this Agreement and has duly authorized
certain individuals to execute this Agreement on Developer's behalf.
STATEMENT OF AGREEMENT
In consideration of and in reliance upon the premises, the mutual
covenants contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto intending to be
legally bound and in accordance with the Act and Code, agree as follows:
SECTION 1. Recitals. The above recitals are true and correct and are a part of this
Agreement.
SECTION 2. Incorporation of the Act. This Agreement is entered into in
compliance with and under the authority of the Code and the Act, the terms of which as of
the date of this Agreement are incorporated herein by this reference and made a part of this
Agreement. Words used in this Agreement without definition that are defined in the Act
shall have the same meaning in this Agreement as in the Act.
SECTION 3. Property Subject to this Augment. The Property described in
Exhibit "A" is subject to this Agreement ("Property").
3.1 The Property currently has a Land Use designation of Resort Facilities
High (RFH) and is Zoned Tourist (T).
3.2. The Property is owned in Fee Simple or under contract to be owned in Fee
Simple by the Developer.
3.3 The Property is generally located at 405, 408, 409 & 411 East Shore Drive,
Clearwater, FL 33767 as further described in Exhibit "A".
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SECTION 4. $cope of Project.
4.1 The Project shall consist of 74 overnight accommodation units including eight
overnight accommodation units from the Hotel Density Reserve with an additional 11 Units acquired
through the use of TDR's and have a density no greater than 150 units per acre and a 22 -slip publicly
accessible marina facility.
4.2 The Project shall include a minimum of 100 parking spaces (1.2 spaces per hotel unit
and one space per two publicly accessible slips), as defined in Code.
Design".
4.3 The design of the Project, as represented in Exhibit "B", is consistent with "Beach by
4.4 The height of the Project shall be up to 65'-0" feet as measured from Base Flood
Elevation, as defined in the Code and as otherwise permitted utilizing the Height Bonus Schedule for
the Marina District of Beach by Design the consolidation of property totaling one acre or more on
both sides of East Shore Drive and the provision of a publicly accessible Boardwalk. The maximum
building heights of the various character districts cannot be increased to accommodate hotel rooms
allocated from the Hotel Density Reserve.
SECTION 5. Effective Date/Duration of this Agreement.
5.1 This Agreement shall not be effective until this Agreement is properly
recorded in the public records of Pinellas County, Florida and thirty (30) days have elapsed
after transmitting to the Florida Department of Economic Opportunity, pursuant to Florida
Statutes section 163.3239 and Code section 4-606.G.2.
52 Within fourteen (14) days after the City approves the execution of this
Agreement, the City shall record the Agreement with the Clerk of the Circuit Court for
Pinellas County. The Developer shall pay the cost of such recording. The City shall submit
to the Department of Economic Opportunity a copy of the recorded Agreement within
fourteen (14) days after the Agreement is recorded.
53 This Agreement shall continue in effect for twenty (20) years unless earlier
terminated as set forth herein.
SECTION 6. Obligations under this Agreement.
6.1 Obligations of the Developer:
6.1.1 The obligations under this Agreement shall be binding upon and the
benefits of this Agreement shall inure to the Developer, its successors in interests or assigns.
6.12 At the time of development of the Property, the Developer will
submit such applications and documentation as are required by law and shall comply with
the Code applicable at the time of building permit review.
6.1.3 The following restrictions shall apply to development of the
6.13.1 To retain the grant of Reserve Units provided for herein, the
Property:
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Property and improvements located thereon shall be developed in substantial
conformance with the Conceptual Site Plan attached as Exhibit "B". Any modifications
determined by the Planning and Development Director as either inconsistent with
attached Exhibit `B" or constituting a substantial deviation from attached Exhibit "B"
shall require an amendment to this Agreement in accordance with the procedures of the
Act and the Code, as necessary and applicable. Any and all such approved and adopted
amendments shall be recorded in the public records of Pinellas County, Florida.
6.132 The Developer shall obtain appropriate site plan approval
pursuant to a Level One or Level Two development application within one (1) year
from the effective date of this Agreement in accordance with the provisions of the
Code and shall then obtain appropriate permits and certificates of occupancy in
accordance with the provisions of the Code. Nothing herein shall restrict Developer
from seeking an extension of site plan approval or other development orders
pursuant to the Code or state law. In the event that work is not commenced pursuant
to issued permits, or certificates of occupancy are not timely issued, the City may
deny future development approvals and/or certificates of occupancy for the Project
and may terminate this Agreement in accordance with Section 10.
6.133 The Developer shall execute, prior to commencement of
construction, a mandatory evacuation/closure covenant, substantially in the form of
Exhibit "C", stating that the accommodation use will close as soon as practicable
after a hurricane watch that includes Clearwater Beach is posted by the National
Hurricane Center.
6.1.4 Covenant of Unified Use. Prior to the issuance of the first building
permit for the Project, the Developer hereby agrees to execute the covenant of unified use
and development for the Project Site providing that the Project Site shall be developed and
used as a single project, the form of which covenant is attached as Exhibit "D"; provided
however, that nothing shall preclude the Developer from selling all or a portion of the
Developer's Property in the event that Developer determines not to construct the Project. It
is understood and agreed that, in the event that the Developer enters into the anticipated
covenant of unified use and development, and the Developer elects not to construct the
Project and notifies the City of its election in writing, and, alternatively, as of the date of
expiration, termination or revocation no rights of Developer remain or will be exercised to
incorporate the Hotel Density Reserve Units into the Project, the City shall execute and
deliver to the Developer a termination of such covenant of unified use and development
suitable for recording in the Public Records of Pinellas County, Florida.
6.1.5 Return of Units to Reserve. Any Reserve Units granted to Developer
not timely constructed in conjunction with the Project shall be returned to the Hotel Density
Reserve and be unavailable to Developer for use on the Project.
6.1.6 Transient Use. A reservation system shall be required as an integral
part of the hotel use and there shall be a lobby/front desk area that must be operated as a
typical lobby/front desk area for a hotel would be operated. Access to overnight
accommodation units must be provided through a lobby and internal corridor. All units in
the hotel shall be made available to the public as overnight transient hotel guests at all times
4
through the required hotel reservation system. Occupancy in the hotel is limited to a term
of less than one (1) month or thirty-one (31) consecutive days, whichever is less. Units in
the hotel shall not be used as a primary or permanent residence.
6.1.7 No Full Kitchens. No unit shall have a complete kitchen facility as
that term is used in the definition of "dwelling unit" in the Code.
6.1.8 Inspection of Records. Developer shall make available for
inspection to authorized representatives of the City its books and records pertaining to each
Hotel Density Reserve unit upon reasonable notice to confirm compliance with these
regulations as allowed by general law.
6.1.9 Compliance with Design Guidelines. The Developer agrees to
comply with the Design Guidelines as set forth in Section VII. of Beach by Design
6.1.10 Limitation on Amplified Music. Developer agrees that there shall
be no outdoor amplified music at the Project after 11:00 pm. on Sunday through Thursday,
or after 12:00 midnight on Friday and Saturday.
6.1.11 Limitation on Marina Facility.
6.1.11.1 The Developer agrees that activities such as servicing, fueling,
pumping -out, commercial chartering and/or and dry -storage of boats and boating equipment is
strictly prohibited.
6.1.11.2 The Developer agrees that the number of conveyable Marina Slips
shall be limited to no more than 22. The City acknowledges that there are 35 additional
marina slips for the sole use of the hotel. The Developer may increase the number
of conveyable marina slips only if the Developer increases the number or parking spaces
to meet compliance with the Community Development Code.
6.1.11.3 The Developer agrees that any conveyable marina slips shall be
limited to sale and/or lease to privately -owned boats rather than commercial vessels for
hire.
6.1.11.4 The Developer agrees that a deed restriction outlining Sections
through 6.1.11.3 shall be submitted to Staff prior to the issuance of any permits.
5
6.2 Obligations of the City.
6.2.1 The City shall promptly process site and construction plan
applications for the Property that are consistent with the Comprehensive Plan
and the Concept Plan and that meet the requirements of the Code.
6.2.2 The final effectiveness of the applications referenced in Section 6.2.1
is subject to:
6.2.2.1 The provisions of Chapters 163 and 166, Florida Statutes, as
they may govern such amendments; and
6.2.2.2 The expiration of any appeal periods or, if an appeal is filed,
at the conclusion of such appeal.
6.2.3 Upon adoption of this Agreement, the project shall receive 8 units
from the Hotel Density Reserve as defined by Beach by Design, contingent
upon the provisions of Section 6.1.5.
6.2.4 It is anticipated that as a condition to the approval of the Project by the
City, Developer will be required to construct and maintain a boardwalk along the seawall
on the Property (the `Boardwalk"), and to permit the general public to enter upon and
traverse the Boardwalk at all times, and to exit the Boardwalk via an easement over the
Property in favor of the City (or for the benefit of the public at large) to be located at
the south end of the Boardwalk, connecting the Boardwalk to East Shore Drive. Said
easement shall include terms and conditions acceptable to the City, and which are typical
of such other easements for similar access that are currently in effect between the City
(or for the benefit of the public at large) and private land owners. Upon the adoption of
this Agreement, City shall enter, in favor of Developer and its successors and assigns, a
general indemnification and hold harmless agreement, to be effective upon the issuance
of a C.O. for the Project, pursuant to which the City shall indemnify and hold harmless
Developer, to the extent allowed by law, from and against any and all claims for injury,
death, and damage brought in connection with the use of the Boardwalk by the general
public at large; provided, however, that such indemnification and hold harmless
agreement shall not relieve Developer of any liability for its negligence in maintaining
the Boardwalk, or any willful or wanton acts by Developer or those under the authority
or control of Developer.
SECTION 7. Public Facilities to Service Development. The following public
facilities are presently available to the Property from the sources indicated below.
Development of the Property will be governed by the concurrency ordinance provisions
applicable at the time of development approval. The requirements for concurrency as set
forth in Article 4, Division 9, of the Code, have been satisfied.
7.1 Potable water is available from the City. The Developer shall be responsible
for all necessary main extensions and applicable connection fees.
7.2 Sewer service is currently provided by the City. The Developer shall be
6
responsible for all necessary main extensions and applicable connection fees.
7.3 Fire protection from the City.
7.4 Drainage facilities for the Property will be provided by the Developer atthe
Developer's sole expense.
7.5 The Project shall comply with the Metropolitan Planning Organization's
[MPO] or its successor's countywide approach to the application of concurrency
management for transportation facilities, and the transportation analysis conducted for the
Project shall include the following:
• Recognition of standard data sources as established by the MPO;
• Identification of level of service (LOS) standards for state and county roads as
established by the MPO;
• Utilization of proportional fair -share requirements consistent with Florida
Statutes and the MPO model ordinance;
• Utilization of the MPO Traffic Impact Study Methodology; and
• Recognition of the MPO designation of "Constrained Facilities" as set forth in
the most current MPO Annual Level of Service Report.
7.6 All improvements associated with the public facilities identified in
Subsections 7.1 through 7.5 shall be completed prior to the issuance of any certificate of
occupancy.
7.7 Developer agrees to provide a cashier's check, a payment and performance
bond, or letter of credit in the amount of 115% of the estimated costs of the public facilities
and services, to be deposited with the City to secure construction of any new public facilities
and services required to be constructed by this Agreement. Such construction shall be
completed prior to issuance of a Certificate of Occupancy for the Project.
SECTION 8. Required Local Government Approvals. The required local
government development approvals for development of the Property include, without
limitation, the following:
8.1 Site Plan approval(s) and associated utility licenses, access, and right-of-way
utilization permits;
82 Construction plan approval(s);
83 Building permit(s);
8.4 Certificate(s) of occupancy; and
SECTION 9. Finding of Consistency. The City fords that development of the
Property is consistent with the terms this Agreement is consistent with the City
Comprehensive Plan and the Code.
SECTION 10. Termination. If the Developer's obligations set forth in this
Agreement are not followed in a timely manner, as reasonably determined by the City
Manager, after notice to the Developer and an opportunity to be heard, existing permits
shall be administratively suspended, and issuance of new permits suspended until the
Developer has fulfilled its obligations. Failure to timely fulfill its obligations may serve as
a basis for termination of this Agreement by the City, at the discretion of the City and after
notice to the Developer and an opportunity for the Developer to be heard.
SECTION 11. Other Terms and Conditions. Except in the case of termination,
until ten (10) years after the date of this Agreement, the City may apply laws and policies
adopted subsequently to the Effective Date of this Agreement if the City has held a public
hearing and determined:
(a) They are not in conflict with the laws and policies governing the
Agreement and do not prevent development of the land uses, intensities,
or densities in the Agreement;
(b) They are essential to the public health, safety, or welfare, and expressly
state that they shall apply to a development that is subject to a
development agreement;
(c) They are specifically anticipated and provided for in this Agreement;
(d) The City demonstrates that substantial changes have occurred in
pertinent conditions existing at the time of approval of this Agreement;
or
(e) This Agreement is based on substantially accurate information
provided by the Developer
SECTION 12. Compliance with Law. The failure of this Agreement to address
any particular permit, condition, term or restriction shall not relieve the Developer from
the necessity of complying with the law governing such permitting requirements,
conditions, terms or restrictions.
SECTION 13. Notices. Notices and communications required or desired to be
given under this Agreement shall be given to the parties by hand delivery, by nationally
recognized overnight courier service such as Federal Express, or by certified mail, return
receipt requested, addressed as follows (copies as provided below shall be required for
proper notice to be given):
If to the Developer: East Shore International Enterprises, LLC
2753 SR 580 Ste 110
Clearwater, FL 33761-3351
Thomas C. Nash, III
625 Court St.
Clearwater, FL 33756
With Copy to:
If to City:
City of Clearwater
600 Cleveland St. Ste 600
Clearwater, FL 33755
Attn: City Manager
8
Properly addressed, postage prepaid, notices or communications shall be deemed delivered
and received on the day of hand delivery, the next business day after deposit with an
overnight courier service for next day delivery, or on the third (3`d) day following deposit
in the United States mail, certified mail, return receipt requested. The parties may change
the addresses set forth above (including the addition of a mortgagee to receive copies of all
notices), by notice in accordance with this Section.
SECTION 14. Assignments.
14.1 By the Developer:
14.1.1 Prior to the Commencement Date, the Developer may sell, convey,
assign or otherwise dispose of any or all of its right, title, interest and obligations in
and to the Project, or any part thereof, only with the prior written notice to the City,
provided that such party (hereinafter referred to as the "assignee"), to the extent of
the sale, conveyance, assignment or other disposition by the Developer to the
assignee, shall be bound by the terms of this Agreement the same as the Developer
for such part of the Project as is subject to such sale, conveyance, assignment or
other disposition.
14.1.2 If the assignee of the Developer's right, title, interest and obligations
in and to the Project, or any part thereof assumes all of the Developer's obligations
hereunder for the Project, or that part subject to such sale, conveyance, assignment
or other disposition, then the Developer shall be released from all such obligations
hereunder which have been so assumed by the assignee, and the City agrees to
execute an instrument evidencing such release, which shall be in recordable form.
14.1.3 An assignment of the Project, or any part thereof, by the Developer
to any corporation, limited partnership, limited liability company, general
partnership, or joint venture, in which the Developer (or an entity under common
control with Developer) has either the controlling interest or through a joint venture
or other arrangement shares equal management rights and maintains such
controlling interest or equal management rights shall not be deemed an assignment
or transfer subject to any restriction on or approvals of assignments or transfers
imposed by this Agreement, provided, however, that notice of such assignment shall
be given by the Developer to the City not less than thirty (30) days prior to such
assignment being effective and the assignee shall be bound by the terms of this
Agreement to the same extent as would the Developer in the absence of such
assignment.
14.1.4 No assignee, purchaser, sublessee or acquirer of all or any part ofthe
Developer's rights and obligations with respect to any one Parcel shall in any way
be obligated or responsible for any of the Developer's obligations with respect to
any other Parcel by virtue of this Agreement unless and until such assignee,
purchaser, sublessee or acquire has expressly assumed the Developer's such other
obligations.
14.2 Successors and Assigns. The terms herein contained shall bind and inure to
the benefit of the City, and its successors and assigns, and the Developer and, as applicable
11
to the parties comprising Developer, their personal representatives, trustees, heirs,
successors and assigns, except as may otherwise be specifically provided herein.
SECTION 15. Minor Non -Compliance. The Developer will not be deemed to
have failed to comply with the terms of this Agreement in the event such
noncompliance, in the judgment of the City Manager, reasonably exercised, is of a
minor or inconsequential nature.
SECTION 16. Covenant of Cooperation. The parties shall cooperate with and
deal with each other in good faith and assist each other in the performance of the provisions
of this Agreement and in achieving the completion of development of the Property.
SECTION 17. Annrovals. Whenever an approval or consent is required under or
contemplated by this Agreement such approval or consent shall not be unreasonably
withheld, delayed or conditioned. All such approvals and consents shall be requested and
granted in writing.
SECTION 18. Completion of Agreement. Upon the completion of performance
of this Agreement or its revocation or termination, a statement evidencing such
completion, revocation or termination shall be signed by the parties hereto and recorded
in the official records of the City.
SECTION 19. Entire Azreement. This Agreement (including any and all Exhibits
attached hereto all of which are a part of this Agreement to the same extent as if such
Exhibits were set forth in full in the body of this Agreement), constitutes the
entire agreement between the parties hereto pertaining to the subject matter hereof.
SECTION 20. Construction. The titles, captions and section numbers in this
Agreement are inserted for convenient reference only and do not define or limit the scope
or intent and should not be used in the interpretation of any section, subsection or
provision of this Agreement. Whenever the context requires or permits, the singular shall
include the plural, and plural shall include the singular and any reference in this
Agreement to the Developer includes the Developer's successors or assigns. This
Agreement was the production of negotiations between representatives for the City and
the Developer and the language of the Agreement should be given its plain and ordinary
meaning and should not be strictly construed against any party hereto based upon
draftsmanship. If any term or provision of this Agreement is susceptible to more than
one interpretation, one or more of which render it valid and enforceable, and one or more
of which would render it invalid or unenforceable, such term or provision shall be
construed in a manner that would render it valid and enforceable.
SECTION 21. Partial Invalidity. If any term or provision of this Agreement
or the application thereof to any person or circumstance is declared invalid or
unenforceable, the remainder of this Agreement, including any valid portion of the
invalid term or provision and the application of such invalid term or provision to
circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and shall with the remainder of this Agreement continue unmodified
and in full force and effect. Notwithstanding the foregoing, if such responsibilities of any
party hereto, to the extent that the purpose of this Agreement or the benefits sought to be
12
received hereunder are frustrated, such party shall have the right to terminate this
Agreement upon fifteen (15) days written notice to the other parties.
SECTION 22. Code Amendments. Subsequently adopted ordinances and codes
of the City which are of general application not governing the development of land shall be
applicable to the Property, and such modifications are specifically anticipated in this
Agreement.
SECTION 23. Governinff Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Florida.
SECTION 24. Counterparts. This Agreement may be executed in counterparts,
all of which together shall continue one and the same instrument.
SECTION 25. Amendment. This Agreement may be amended by mutual written
consent of the City and the Developer so long as the amendment meets the requirements of
the Act, applicable City ordinances, and Florida law.
IN WITNESS WHEREOF, the parties have hereto execut this Agreement the date
and year first above written.
In the Presence of: EAST SHORE
INTERNATIONAL
ENTERPRISES, LLC & 411 E S
Bodziak, Archit
oper
7
Frank Dagostino
Print Name
C1 Q LEARWATE
By:. William B. Horne II
City Manager
Attest:
FLORIDA
Rosemarie Call, City Clerk
Countersigned:
qe0YIVYAk1
George N. Cretekos, Mayor
Approved as to Form: A
riurc
Michael Fuino, Assistant City Attorney
13
STATE OF FLORIDA
COUNTY OF PINELLAS
e foregoing instrument was acknowledged before me this/7? — day of
201/ by GEORGE N. CRETEKOS, as Mayor of the City of
Clearweraf Florida, who is [ t- J personally known to me or has [ ] produced
as idenWication.
STATE OF FLORIDA
COUNTY OF PINELLAS
L (L,Gc L274oaa4 t
Notary Public �
Print Name:47 is 4 4,i 4� OWS,C
My Commission Expires: /o
240/2,
The foregoing instrument was acknowledged before me this IO(1 day of
'10.., , 20161, by WILLIAM B. HORNE, II, as City Manager of the City
of Clearwater, Florida, who is [ vi personally known to me or who has [ ] produced
as identification.
Notary Public
Print Name: Sc..071 ynu S
My Commission Expires 10/ C i C
14
Scott Burrows
COMMISSION # GOMM
EX ocbber 1, 2022
eocaea Thr Pion Merry
EXHIBIT A
Address of subject Property: 411-408 East Shore Drive
Parcel Number(s): a. 08-29-15-02592-003-0070
b. 08-29-15-02592-002-0090
c. 08-29-15-02592-003-0100
d. 08-29-15-02592-003-0120
Legal description:
a. Barbour-Morrrow Sub Blk C, Lots 7, 8 & 9 & S 1/2 of Lot 6 & Subm
Land/TIF Deed #17,411 per Plat.
b. Barbour-Morrrow Sub Blk B, Lots 9 and 10.
c. Barbour-Morrrow Sub Blk C, Lot 10 & N 15 Ft of Lot 11 & Subm
Land/TIF Deed #17,411 per Plat.
d. Barbour-Morrrow Sub Blk C, S 35 Ft of Lot 11 & N 1/2 of Lot 12 &
Subm Land/TIF Deed #17,411 per Plat.
Size of Property: 48,351.6 Sq. Ft. or 1.11 acres
15
EXHIBIT "B"
See attached Conceptual Site Plan and Architectural Drawings
16
EXHIBIT "C"
COVENANT REGARDING HURRICANE EVACUATION
And DEVELOPMENT, USE AND OPERATION
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS ("Declaration") is
made as of the day of , 20, by EAST SHORE
INTERNATIONAL ENTERPRISES, LLC & 411 E S ("Developer").
Developer is the owner of fee simple title to the real property described in Schedule
1 attached hereto and made a part hereof (hereinafter, the ("Real Property"). The City of
Clearwater, Florida (the "City"), has amended its Comprehensive Plan to designate Clearwater
Beach as a Community Redevelopment District pursuant to the Pinellas County Planning
Council Rules in order to implement the provisions of Beach by Design, a plan for the
revitalization of Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District (the
"Designation") provides for the allocation of Hotel Density Reserve Units as an incentive for
the development of mid-size quality hotels. Pursuant to the Designation, the allocation of
Hotel Density Reserve Units is subject to compliance with a series of performance standards,
including a requirement that resorts containing a hotel developed with Hotel Density Reserve
Units shall be closed and all Guests evacuated from such hotels as soon as practicable
after the National Hurricane Center posts a hurricane watch that includes Clearwater Beach.
The purpose of such evacuation is to ensure that such a hotel is evacuated in advance of the
period of time when a hurricane evacuation would be expected in advance of the approach of
hurricane force winds.
The City has granted, by City Council Resolution , passed and approved on
, 20 , Developer's application for Hotel Density Reserve Units pursuant to
the Designation, subject to Developer's compliance with the requirements of the Designation.
Developer desires for itself, and its successors and assigns, as owner, to establish certain rights,
duties, obligations and responsibilities with respect to the use and operation of the Real Property
in accordance with the terms and conditions of the allocation of the Hotel Density Reserve Units
to the City and the Designation, which rights, duties, obligations and responsibilities shall be
binding on any and all successors and assigns and will run with the title to the Real Property.
THEREFORE, in consideration of the covenants and restrictions herein set forth and to be
observed and performed, and in further consideration of the allocation of Hotel Density Reserve
Units to Developer, and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, Developer hereby declares, covenants and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for the benefit
of Developer and its successors and assigns and shall be enforceable by them and also for the
17
construction of the Project, as evidence by a Notice of Commencement for the Project. This
Declaration shall expire and terminate automatically if and when the allocation of Reserve Units
to the Developer expires or is terminated.
4 Governing Law. This Declaration shall be construed in accordance with and
governed by the laws of the State of Florida.
5 Recording. This Declaration shall be recorded in the chain of title of the Real
Property with the Clerk of the Courts of Pinellas County, Florida.
6 Attorneys' Fees. Developer shall reimburse the City for any expenses, including
reasonable attorneys' fees, which are incurred by the City in the event that the City determines that
it is necessary and appropriate to seek judicial enforcement of this Declaration and the City obtains
relief, whether by agreement of the parties or through order of a court of competent jurisdiction.
7 Severability. If any provision, or part thereof, of this Declaration or the application
of this Declaration to any person or circumstance will be or is declared to any extent to be invalid
or unenforceable, the remainder of this Declaration, or the application of such provision or portion
thereof to any person or circumstance, shall not be affected thereby, and each and every other
provision of this Declaration shall be valid and enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, Developer has caused this Declaration to be executed this
day of , 20_.
In the Presence of:
Print Name:
IPAAJX hA os /No
EAST SHORE INTERNATIONAL
ENTERPRISES, LLC & 411 E S
By:
Bodziak, Architect,
19
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this / qday
of rvtg /1 , 20 /9, by John A. Bodziak, Architect, as Agent for EAST
SHORE INTERNATIONAL ENTERPRISES, LLC & 411 E S, both being Florida
limited liability companies, on behalf of the companies, who is [ personally
known to me, or who [__] has produced
as identification.
Print Name:
My Commission Expires:
20
SUZANNE N. PIERCE
MY COMMISSION # 0091861
EXPIRES: May 20, 2021
CITY OF CLE WA ER, FLORIDA
lAYANa4A, 16
By:. William B. Home II,
City Manager
Attest: nn
*14-0K./114.-.,
Rosemarie Call, City Cle
Countersigned:
- Ctehil t r\ Cr C itC
George N. Cretekos, Mayor
Approved as to Form:
Michael P. Fuino,
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this /' 1-t' day of
, 20/ 9 , by GEORGE N. CRETEKOS, as Mayor of the City of Clearwater,
Flori who is [ ✓] personally known to me or has [ ] produced
as ides_:, 'cation.
Ct PL.
,...9 WS /
otary Public O A v ,
tint Name:T�d G�
y Commission Expires:
21
/0/20/2/
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this arilday of
, 20161, by WILLIAM B. HORNE, II, as City Manager of the City of
Clearwater, Florida, who is [ %/J personally known to me or who has [ ] produced
as identification.
Notary Public
Print Name: c cT1 .S
My Commission Expires: i O c
020
Scott Burrows
COMMISSION $932611/9
odolw 1.2022
Scmdsd Pace Nobly
EXHIBIT "D"
COVENANT OF UNIFIED USE
PLEASE RETURN RECORDED DOCUMENT TO:
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Covenant") is executed this day of
, 20 , by EAST SHORE INTERNATIONAL ENTERPRISES, LLC & 411
E S, both being Florida limited liability companies ("Developer").
WITNESSETH:
WHEREAS, Developer is the owner of the real property legally described on Schedule "A"
attached hereto and incorporated herein by reference (the "Real Property"); and
WHEREAS, Developer and the City of Clearwater, Florida (the "City") are parties to
that certain Hotel Density Reserve Development Agreement dated , 20
(the "Agreement"), pursuant to which the City has agreed that Developer may develop and
construct upon the Real Property a hotel project as described in the Agreement (the "Project");
and
WHEREAS, Developer intends to develop and operate the Real Property for a unified use,
as more particularly described in this Covenant.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Developer does hereby agree that, effective as of the date on which Developer
receives all permits required to construct the Project and Developer commences construction
thereof, as evidenced by a Notice of Commencement for the Project, the Real Property shall be
developed and operated as a hotel project, as described in the Agreement. The restrictions set
forth in the preceding sentence shall expire automatically when and if Developer's allocation of
additional hotel units (as defined in the Agreement) expires or is terminated. Nothing in this
Agreement shall require Developer to develop the Project or restrict Developer's ability to sell,
assign, transfer or otherwise convey its rights and to the Real Property or any portion or
portions thereof to unrelated third -parties.
21
Developer agrees that the City shall have the right to enforce the terms and conditions of this
Agreement.
Notwithstanding the foregoing, all Hotel Units may be operated by a single hotel operator.
IN WITNESS WHEREOF, Developer has caused this Covenant to be executed this
day of , 20 .
In the Presence of:
FRANKosTiNo
EAST SHORE INTERNATIONAL
ENTERPRISES, LLC & 411 E S, both
being Florida limited liability companies
Bodziak, Archite �, :ent
As to "Developer"
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this `� day
ofW6 y , 20 /9) , by John A. Bodziak, Architect, as Agent for EAST
SHORE INTERNATIONAL ENTERPRISES, LLC & 411 E S, both being Florida limited
liability companies, who is VI personally known to me, or who [a
has produced as identification.
Print Name:
My Commission Expire
22
ERCE
MY COMMISSION # GG91861
. May 20, 2021
COUNTY OF PINELLAS
CITY OF CLEARWATER, FLORIDA
By:. William B. Home II,
City Manager
Attest:
tc
Rosemarie Call, City Cler
Countersigned:
- Gteo(tt\cltk{s
George N. Cretekos, Mayor
Approved as to Form:
igtelu
Michael P. Fuino,
Assistant City Attorney
foregoing instrument was acknowledged before me this %9s) day of
20.(q , by GEORGE N. CRETEKOS, as Mayor of the City of Clearwater,
Floris . who is [ fr" ] personally known to me or has [ ] produced
as identification.
ommission Expires:
/.2%-/
23
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this I Q day of
S'txly , 20 L i , by WILLIAM B. HORNE, II, as City Manager of the City of
Clearwater, Florida, who is [ v ] personally known to me or who has [ I produced
as identification.
Notary Public
Print Name:
My Commission Expires:
24
Scott Burrows
COMMISSION $GG2II179
EVIREs: October 1, 2022
Banded 1Nu Aron Miry
Schedule "A"
a. Barbour-Morrrow Sub Blk C, Lots 7, 8 & 9 & S 1/2 of Lot 6 & Subm Land/TIF
Deed #17,411 per Plat.
b. Barbour-Morrrow Sub Blk B, Lots 9 and 10.
c. Barbour-Morrrow Sub Blk C, Lot 10 & N 15 Ft of Lot 11 & Subm Land/TIF
Deed #17,411 per Plat.
d. Barbour-Morrrow Sub Blk C, S 35 Ft of Lot 11 & N 1/2 of Lot 12 & Subm
Land/TIF Deed #17,411 per Plat.
25
EXHIBIT 2
First Amendment to Development Agreement dated October 1, 2020
ANO COMPTROLLER PI NELLAS COUNTY, FL
INST# 2020300281 10/08/2020 08:58 AM
OFF REC 8K: 21200 PG: 523-525
DocType:AGM RECORDING: $27.00
FIRST AMENDMENT TO THE
HOTEL DENSITY RESERVE DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO THE HOTEL DENSITY RESERVE DEVELOPMENT
AGREEMENT ("AMENDMENT") is dated the /r day of Oc1-ober , 2020, and
entered into by and between EAST SHORE INTERNATIONAL ENTERPRISES, LLC and
411ES, LLC, a Florida limited liability company ("Developer"), its successors and assigns, and
the CITY OF CLEARWATER, FLORIDA, a municipality of the State of Florida acting through
its City Council, the governing body thereof ("City").
WITNESSETH:
WHEREAS, Developer and the City entered into that certain Hotel Density Reserve
Development Agreement dated July j g , 2019 (the "Development Agreement") a full copy of
which is attached hereto as Exhibit 1 relating to that certain real property located at 400, 405, 408,
409, and 411 East Shore Drive, Clearwater, FL 33767 (the "Property"); and
WHEREAS, on or about May 1, 2020, Developer filed a Flexible Development
Application (FLD 2020-05012) and a Transfer of Development Rights Application (successor
application number: TDR 2020-07002) to develop the Project; and
WHEREAS, the Development Agreement requires the Developer to obtain site plan
approval within one year of the effective date of the Agreement. The Developer has filed the
appropriate Applications to obtain site plan approval, but the Applications were incomplete and
are still pending final approval through the development review process. The Developer has
experienced delays in completing the Applications partially due to the Covid-19 pandemic. As
such, the parties desire to amend the Development Agreement as set forth herein;
NOW THEREFORE, in exchange for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Developer and the City agree as follows:
RECITALS:
1. The recitals listed above are true and correct and incorporated herein by reference.
AMENDMENT TO DEVELOPMENT AGREEMENT:
2. Section 6.1.3.2 is amended to read as follows: The Developer shall obtain appropriate
site plan approval pursuant to a Level One or Level Two development application within
two (2) years from the effective date of this Agreement in accordance with the provisions
of the Code and shall then obtain appropriate permits and certificates of occupancy in
accordance with the provisions of the Code. Nothing herein shall restrict Developer from
seeking an extension of site plan approval or other development orders pursuant to the
Code or state law. In the event that work is not commenced pursuant to issued permits, or
certificates of occupancy are not timely issued, the City may deny future development
approvals and/or certificates of occupancy for the Project and may terminate this
Agreement in accordance with Section 10.
3. No Further Changes. Except as set forth herein there are no further changes,
amendments or modifications to the Development Agreement.
Print Name: -rzo„
3it-«
Print Name: lc s4-. O Ojai+ �.A .
As to "Developer"
Print Name:
Print Name:
As to "City"
Developer:
EAST SHORE INTERNATIONAL
ENTERPRISES, LLC and 411ES, LLC
By:
Frank Dagostino, Managing Member
City:
CITY (Alit
CLEARWATER, FLORIDA
By: �(; . IIIfJM4,tc
William B. Home II,
City Manager
Attest:
Rosemarie Call, City Clerk
Coun ign• A//41-1—ell
Frank V. Hibbard, Mayor
Approved as to Form:
/0(A
Mike Fuino
Assistant City Attorney